Despite a nearly 10-minute speech from a Kansas City-based attorney representing Carthage-based Renewable Environmental Solutions, city council members voted unanimously Tuesday night to adopt an amended odor ordinance.
The new odor ordinance allows the city to cite any business or individual creating an offensive odor and seek a $500 fine, or an injunction from the circuit court to force the offender to fix the problem. It also sets a 5-1 ratio of pure air to contaminated air as the threshold for a violation, which is stricter than the state’s 7-1 ratio.
Attorney J. Stan Sexton of Shook, Hardy & Bacon, spoke often about the fine line between “regulatory” and “prohibitory.”
While never coming right out and saying it, Sexton hinted the city’s proposed odor ordinance changes leaned toward being prohibitory.
He spoke often about the strict 5-1 ratio, saying, “If you adopt something that prohibits what the state permits, or if you permit what the state prohibits, then you may be subject to the concept of preemption. If your ordinance is preemptive, then (it) does you no particular good.”
Instead, Sexton urged council members to adopt a more “regulatory” approach. First mentioned to city officials last August, he suggested city representatives, RES officials and every other Carthage-based industrial business that have had an odor citation in the past, to designate a representative “that would participate in a series of ongoing inspections that would have site visits at every facility in the city that is of significant import to the contribution of odor.” After a number of violations, reps would turn to the best available control technology for proper regulation.
This approach, he said, “is proactive, and doesn’t draw a line in the sand… (and) invited participation — an issue of inclusion instead of exclusion, and it may be the better way.
“Had that process been undertaken back in August,” Sexton continued, “we may not be here at this point and at this time.”
Seconds after Sexton finished speaking, Carthage Mayor Jim Woestman said he’d wished Sexton had been able to come to Carthage sooner, when the odor ordinance was being heavily debated in the various committee meetings or even during its first reading earlier this month.
“I want you to realize the city is very disturbed with the situation that we’re living with now,” he said. “Tonight is the final toll.”
City Attorney (Dally) said the Department of Natural Resources had given the city the green light to adopt an ordinance with a ratio that was stricter than the state.
Toward the end of the meeting, Council member Diane Sharits took a few moments to address Sexton, refuting his claim that RES had invited council members out to the plant in the past.
“I’ve been on the council for six years and I have never been invited to tour the RES plant,” she said.
