Richard D. L Fulton

(11/30) A recent spate of complaints alleging "offensive" farm-generated odors in the Emmitsburg area has left county government in a quandary as to how to investigate the concerns.

Although Frederick County had adopted a Right to Farm Ordinance in 1997, conceived in part to protect farms from "nuisance complaints," county government was told recently by the Maryland Department of Agriculture (MDA) that local government has no authority to enforce the local regulations.

Michael G. Marschner, deputy chief administrative officer, Frederick County Office of the County Executive, acknowledged that county government offices, including the executive, and planning and zoning offices, and health department, have received a number of complaints from Emmitsburg area residents concerning potential farm-generated smells, which the complainants described as "offensive odors."

"We wanted to meet with the MDA," Marschner said," We’ve already sent some (county government) people there (to meet with MDA), but we were told we have no authority."

The complaints have generally targeted a particular farm operation located along a tributary of the Monocacy River. Since none of the allegations against the farm have been proven, the News-Journal has elected to not publish the name of the operation at this time.

A summary of alleged or suspected, potential offenses was supplied by complainants to the News-Journal. The most conceivably tangible among the concerns are the offensive odors. The document states, "Appalling smells are causing great concern on the part of area residents and farmers…," which were described as sickening or gagging." The document cites a liquid waste storage lagoon and the act of applying the liquid wastes to the fields as the potential source of the smells.

Frederick County did pass a Right to Farm Ordinance, based upon the Maryland "Right to Farm" laws, which was intended to protect farms from various "nuisance complaints" including addressing offsite impacts of odors generated by a farm operation. Unless a farm is engaging in activities in violation of any of the operation’s permits, or environmental laws, a farm is shielded from odor complaints.

But now, it seems, some provisions, including odors issues, are being questioned as far as county involvement in regulating such complaints.

Marschner told the News-Journal, "We (members of county offices) wanted to meet with the MDA (regarding the odor complaints)," but, "we’ve been told (by MDA) we have no authority."

To complicate matters further, apparently, even the MDA and the state Department of the Environment (MDE) also, around 1997, were not clear on which department was to enforce which regulations, when it came to farmlands, resulting in the two agencies generating a memorandum of understanding (MOU) to divvy-up responsibilities. According to this MOU, the MDA was designated the principle agency to investigate farmland-generated odor complaints and included specific steps which the MDA must take during and after such investigations.

Also, specific to off-site odor issues, Maryland’s environmental protection regulations (Environment Article, §2-101, Annotated Code of Maryland) and the Right to Farm laws conflict regarding what degree of off-site odor complaints can be acted upon.

According to 2-101, air pollution (which includes odors) is defined as "the presence in the outdoor atmosphere of substances in quantities, having characteristics… which unreasonably interfere with "the proper enjoyment of the property of others by reason of the emission of odors, solids, vapors, liquids, or gases…" Some states use the phrase, "unreasonably interferes with the enjoyment of life or property (i.e. State of New Jersey)"

When the Right to Farm regulations were created, that phrase (the proper enjoyment of the property of others) was omitted, and Maryland was not the only state to do that.

Thus, a conflict was apparently created between the two sets of regulations, creating a situation wherein the state can take action to protect property owners from obnoxious odors, unless they live within the impact zone of farm-generated "obnoxious" odors.

While awaiting an official word providing the county with some direction regarding alleged off-site odors (and other allegations), Marschner said, "The MDA folks have pretty much assured us as far as they are concerned, they (the farm in question) are in compliance. Other complaints have been surfacing but no hard evidence."

"We were pretty much told county doesn’t have a role," he said, adding, "We haven’t seen anything (at the subject farm) the county can regulate."