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Russellville Mayor Randy Horton said his city is "back to square one" in its efforts to get rid of odors emanating from a 36-acre animal byproduct rendering plant.

Horton confirmed that when faced with a federal lawsuit challenging the city's odor ordinance, which required the use of a Nasal Ranger device to determine just how obnoxious certain odors were, the city pulled the ordinance.

The hand-held olfactometer is a cone-shaped device about a foot long that is used to define the degree of stink associated with "odor emissions." Under the ordinance, the degree of stink detected would have determined whether the emission in question was legal or illegal.

The ordinance authorized violators to be sued or to be fined up to $1,000 for a single offense, double that amount for repeat offenses, and up to $500 a day if the violation was deemed "continuous in nature."

Little Rock attorney John Keeling Baker, who on May 23 filed a lawsuit on behalf of Premium Protein Products, said last week that as a result of the city repealing the ordinance that was the subject of the lawsuit, the company filed a notice dismissing the case without prejudice, meaning that it could be refiled later if new circumstances arise.

A joint notice of dismissal was filed Aug. 31 by Baker and attorney Jenna Adams of the Arkansas Municipal League, which represented Russellville. Adams didn't return calls for comment.

"We did do away with our local ordinance because, according to their argument, state law would prevail anyway," Horton said.

The lawsuit said the state "has exercised its police power with respect to the emission of air pollutants," and that the state's Water and Air Pollution Control Act pre-empts any political subdivision of the state from enacting or enforcing any conflicting ordinances or regulations.

The mayor conceded last week that defending the ordinance, which prohibited nuisance odors, would have been expensive, so, "We'll try to find some other way of working it out."

He was referring to residents' complaints about odors that sometimes waft through parts of the city from the plot that Premium Protein Products bought in June 2015 from Pilgrim's Pride Corp.

The ordinance would have required the use of the Nasal Ranger. A website for the brand-name device indicates it was featured on the History Channel program, Modern Marvels, in a 2012 episode. An episode description states, "Just as the whiff of a foul odor can make your head spin, your eyes water, your stomach turn -- it can even send you hurling. From cesspools, military stink bombs and rancid rotting meat ... to cow farms and landfills .. to bad breath, B.O. and beyond, the world is full of stink--and we've spent centuries battling the funk."

The device has been used not only by municipalities to identify and regulate odor sources, but has been used to sniff out marijuana complaints in Denver.

Premium Protein Products's lawsuit complained that Russellville's odor ordinance threatened the plant's viability, which depends on being located near an ample supply of animal byproducts such as broiler houses and animal farms.

"The plant manufactures feed and organic fertilizer by converting non-edible poultry and other animal byproducts into usable proteins," the company said in the lawsuit. "The plant provides a service by picking up and receiving animal byproducts from local butcher shops, supermarkets, poultry processors, slaughterhouses, farms, egg producing facilities, and other rendering facilities."

The feed is used for dairy animals, beef cattle, poultry and swine, as well as in organic fertilizers, it said.

The company argued that the ordinance, which targeted the company despite no judicial determination that the plant constituted a nuisance, denied the company due process. It also noted that the plant has always been properly licensed and has complied with air and water quality permits from the state Department of Environmental Quality and the U.S. Department of Agriculture.

The plant, which is Premium Protein Products' sole operational asset, employs 34 workers with an annual payroll of about $1.4 million and generates about $9 million in sales annually, according to the suit. It said that the plant's operation also requires the services of eight truck drivers employed by outside firms.

In May, Horton said city officials drafted the ordinance to appease residents who have complained for decades about the odors emanating from the site now occupied by Premium Protein Products but previously occupied by other rendering plants such as Pilgrim's Pride.

Horton said the ordinance was created so Russellville residents could enjoy their property, noting that some people who lived 2½ miles from the plant complained about the odor.

Premium Protein Products said in the lawsuit that it has invested hundreds of thousands of dollars in mechanical upgrades to the plant and on hiring odor-control consultants and has "instituted a comprehensive chemical odor abatement program and monitoring regime."

Horton agreed in May that "there are more good days now than in the last few years of Pilgrims' ownership."

He said the city had extended an invitation to company officials to attend City Council meetings about the odor problem and help devise the ordinance, but Baker said that was news to him.

Horton said Thursday, "Based on the number of calls we're getting, I would say it's not as big a problem" now as it was in the past. But, he added, "I know a lot of people have quit calling because it's just a waste of time."

The mayor also conceded that odors emanating from the site on Bernice Street were once detectable from 2 miles away or more, but, "I have not been noticing it very much this summer, except yesterday when I was coming to work," and got within about a mile and a quarter from the plant.

Horton said he was hoping the state Department of Environmental Quality might help the city deal with the sometimes noxious odors, but the department has pointed out that it deals with pollutants, not odors.

"We'll just keep working on it," he said.

Metro on 09/25/2017

Print Headline: Russellville drops odor ordinance; Rendering plant stops suit after city agrees to look for new way to fight stink

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