Article 1

To see if the Town of Tewksbury will vote to authorize the Board of Selectmen to petition the legislature to enact the following Home rule Amendment.

Tewksbury’s Agricultural Regulations for Keeping Swine

PURPOSE
The purpose of this Act is to implement the health and safety powers granted to the Town of Tewksbury pursuant to the Constitution and the statues of the Commonwealth of Massachusetts where present laws do not adequately protect residential and other properties which are located in close proximity to farms keeping swine; therefore the Town of Tewksbury shall exercise its right to establish standards for keeping swine through regulations.
The regulations include, but are not limited to: (1) Promoting the health and wellbeing of abutters and all inhabitants of the town through practices of manure, nutrient and pest management, (2) Promoting transparency of the activities on the swine operation and accountability, (3) Empowering the Board of Health to protect the abutters from environmental pollutants.

Section 1       Definitions

 Agricultural Operation  means the operation of keeping swine.

 Approving Authority shall be the Tewksbury Board of Health or its designated representative.

Abutters shall be any land owner or lessee whose property is 500 feet of the applicant’s swine operation and abutters to abutters .

Agroecology is the management of agricultural systems with a strong emphasis on ecological
            and environmental perspectives.

Environmental Assessment   An inspection by the town’s conservation administrator where the entire agricultural operation (land owned and leased) is physically inspected and environmental concerns or pollution is documented.  The conservation administrator shall document concerns and/or violations will certify there is no illegally dumped manure on the property, no runoff exits into wetlands and that the operation will not contaminate the environment.

Manure Management Plan (MMP) is a plan written by a qualified industry professional, recommending the handling of swine manure. It shall address clearing, composting, storage (including location in relation to wells and waterways), utilization and removal of swine manure.  Such a plan shall represent the most up-to-date best management industry practices and the most stringent industry guidelines.

Nutrient Management Plan   a plan written by a qualified industry professional, who tests the soil makes recommendations based on soil test results and type of crops to be planted to ensure a balanced soil composition, based on the most up-to-date best management practices and the most stringent recommendations and guidelines.

Pest Control Plan A plan written by a qualified professional to provide recommendations to address control of pests and rodents using an integrated approach, including products to be used, based on the most up-to-date best management industry Practices and the most stringent recommendations and guidelines.

Swine are any pigs not including pot-bellied pigs kept as household pets. For the purpose of licensing swine, juvenile swine not yet weaned, residing on the property with their maternal parent shall not count as additional swine and will not require an additional or amended permit, until they are weaned.

Swine Permit the permit granted by the Approving Authority to keep swine within the Town of Tewksbury, valid for twelve (12) months from date of issue

Section 2       Permit Application for Keeping Swine

In the absence of agricultural industry standards requiring swine permitting regulations, for all size swine operations, and State Laws requiring the same, the Town of Tewksbury shall define the following standards for the permit process for keeping swine.

In accordance with M.G.L. Chapter 111, Section 31 the Tewksbury Board of Health shall promulgate and adopt reasonable rules, regulations, guidelines and policies for the implementation of the intent of the Act. Failure by the Board of Health to promulgate such regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate this Act.

An agricultural operation shall apply, annually, to the Approving Authority, for a permit to keep swine.                          

The Approving Authority and local Health Department shall be responsible for agricultural operations to obtain permits at least every twelve months.  All existing, new and expansion of existing operations for keeping swine, with 50 or more swine, or increase of 50 or more swine, shall be required to submit a Permit Application for Keeping Swine in accordance with items 1 through 9 below.  Every year thereafter, said permit shall not require a public hearing and all plans shall be updated and approved subject to the rules, fees and consultant approved by the Approving Authority.
The following information shall be required and shall accompany the permit application;

1)      Application form, completed and showing number of swine to be kept. 

2)      A “Manure Management Plan”  (see section 1, “Definition”) 

3)      A “Nutrient Management Plan”, ( see section 1, “Definition”)

4)      A “Pest Control Plan”, (see section 1, “Definition”)

5)      An “Environmental Assessment”, (see section 1, “Definition”)

6)      Verification that all abutters have been notified by certified mail of the applicants intent, not more than thirty(30) days but no less than fourteen (14) days in advance of the hearing before the Approving Authority.

7)      A certified plot plan of the entire farming operation, in its entirety, including areas which may be located in an abutting town(s). The plan and the following information will be drawn to scale and will become part of a legal document:

·         The plot plan shall reflect the location of all buildings and structures of the entire farm and their purpose.

·         The plot plan shall reflect the location and size of the area(s) the manure is located for composting, location of spreading area (cropland) or storage area, including areas which may be located in an abutting town(s).

·         The plot plan shall reflect the location of all streams, ponds and/or wetlands or waterways, including flood zones, located on the entire property, including areas which may be located in an abutting town(s). The location of deceased swine, composted or buried, shall be reflected on the plot plan.

 

·         A clear designation and description of the nearest boundaries or areas covered by Tewksbury’s Ground Water Protection Bylaw.

    8)   Permits for keeping swine, if issued, shall be issued to the owner of the property for a specific number of
               swine  and cannot be transferred or assigned without the Approval of Approving Authority.

9)      Permits are valid for twelve (12) months, from the date of issue, after which time it expires.

Section 3       Action by Approving Authority on “Permit Application for Keeping Swine”

1)      Upon receipt of the completed application, the Approving Authority shall hold a Public Hearing within 45 days.  During which time, the Approving Authority shall:

a)     Verify that all abutters have been notified.

b)     Inspect the property, and ensure that it is in accordance with Sections 4 through 9 in the regulations.

c)     Review the “Permit Application for Keeping Swine” and required documents. 

d)     Certify all application information and documents are complete and accurate.

e)     Review the file on the agricultural operation from previous years to insure it is in good standing.  Review complaints from residents, environmental report from Conservation Administrator, and other pertinent findings.

2)      The Approving Authority shall provide an opportunity for the abutters to express their concerns, ask questions, and express their support or opposition to the application.  The Board of Health may require the applicant to furnish additional information to make a determination whether to grant the permit.

3)      The burden shall be on the applicant to establish that the granting of a permit shall not endanger the health and wellbeing of the public, including the drinking water supplies of the community.

4)       The Approving Authority shall act on the application for a Swine Permit and shall provide the applicant with a written decision of the outcome and any conditions imposed by the Approving Authority if the permit is granted.

5)     The Approving Authority shall issue or deny said “Permit for Keeping Swine”. If upon examination of the required documents; there would be a negative impact to the public’s health and welfare, including odor nuisance concerns, said application shall be denied, with findings forthcoming from the Approving Authority. Failure to provide complete and accurate documents required under Section 2 shall be grounds for denial.

Section 4       Swine Housing

In the absence of standard regulations for swine buildings, for all size operations, from the agricultural industry and State Laws requiring the same, the Town of Tewksbury shall require agricultural operations to comply with state building code and a component for public input;

1)      Building or Renovation of swine buildings shall require a Permit application, as defined in Section 2.

2)      The Applicant shall notify abutters and a public hearing shall be conducted. 

3)      The Applicant shall submit plans to Approving Authority

4)      The citizens shall be given every opportunity to express their concerns during the public hearing and said concerns shall be remedied by the Approving Authority.

5)       For New construction or renovation, the decision to issue a permit, by the Approving Authority, shall place the weight of the decision on the appropriateness of the building or improvements for the neighborhood and the welfare of the neighborhood.

6)    All new construction or renovation of primary stables, pens or housing used to contain
       swine shall be a minimum 1760 feet from any lot line and shall be designed with the
       industry’s most recent and most stringent requirements and recommendations for
      minimizing odors and environmental pollution. The applicant for a Swine permit may be
     allowed a variance for a lesser setback  if an engineer or qualified professional as
     determined by the Approving Authority, hired by the applicant, prepares an approved odor
     dispersion plan resulting in improved or equivalent odor minimization and dispersion on the
     neighborhoods surrounding the operation. The odor dispersion plan shall include, but is not
     limited to, the following; odor control measures, meteorological data, prevailing wind
     direction and topography.  The odor dispersion plan shall include biofilters and tall air
     stacks or similar implementations to provide optimum odor minimization and
     disbursement.

Section 5       Manure Management

In the absence of standard regulations requiring a manure management plan for all size swine operations, from the Agricultural Industry and State Laws requiring the same, the Town of Tewksbury shall require a Manure Management Plan each year, as required in the “Permit Application for Keeping Swine” (Section 2).

1)      The submitted Manure Management Plan (MMP) shall be written by a qualified industry professional and reviewed by the Approving Authority prior to issuance of a Permit. 

2)      The MMP shall represent Best Management Industry Practices and shall use the most stringent developments in industry regulations and guidelines and technology, regardless of the size of the operation.  

3)      The MMP shall address clearing, composting, storage (including location in relation to streams ponds, wetlands, flood zones, and ground water protection areas), utilization and removal of manure.

4)      The MMP shall require management and disposal of manure in a way which minimize odors, breeding flies and the attraction of vermin. 

5)      The MMP shall require manure to be collected and stockpiled at a location(s), carefully chosen to maximize the distance from abutting properties and watercourse and with due consideration of the prevailing winds.

6)      The storage of manure, wastes and soiled bedding and the maintenance of pens or corrals for swine shall not interfere with any abutter’s rights to clean air or to the use and enjoyment of their property. 

7)      The Board of Health or its agent and the local Health Department shall investigate any complaints of offensive odor, pollution or pests (such as rats, mice, insects, flies or mosquitoes) associated with the keeping of swine within the Town of Tewksbury and find a remedy in accordance with Section 10 “Enforcement”.

8)      The Board of Health and the Local Health Department shall track manure production and disposal, documenting and accounting for all swine waste. These documents shall be available to the public.

9)      Upon every visit to the property, the health official shall inspect and measure storage areas, measuring the contents of the swine waste storage tank or the height and width of manure piles and their location on the property and document the findings. This information shall be available to the public.

Section 6       Nutrient Management Plan

Swine waste can pollute the environment when misapplied or over-applied to cropland. In the absence of standard regulations requiring a nutrient management plan for all size swine operations, from the agricultural industry and State Laws requiring the same, the Town of Tewksbury shall require a nutrient management plan each year, as required in the “Permit Application for Keeping Swine” (Section 2).

1)      The submitted Nutrient Management Plan shall be written by a qualified industry professional and reviewed by the Approving Authority prior to issuance of a Permit. 

2)      The Nutrient Management Plan shall represent best management industry practices and shall use the most stringent developments in industry regulations, guidelines and technology, regardless of the size of the operation. The plan shall address pollution prevention, optimizing soil nutrient uptake and minimizing soil nutrient overload and runoff. Soil testing shall be completed prior to filing an application and reflect the most current soil conditions.  The plan shall reflect the practices consistent with Agroecology.

 

3)      Upon every visit to the swine operation, regardless of reason for visit, Local Health Department officials shall require follow up on the Nutrient Management Plan, inspecting the property for violations in the plan and documenting said violations.  All information shall be documented and action taken, in accordance with Section 10 “Enforcement”.

Section 7       Pest Control Plan

In the absence of standard regulations requiring a Pest Control Plan for all size swine operations, from the agricultural industry and State Laws requiring the same, the Town of Tewksbury shall require a Pest Control Plan each year, as required in the “Permit Application for Keeping Swine” (Section 2).

1)     The submitted Pest Control Plan shall be written by a qualified industry professional and
                    reviewed by the Approving Authority prior to issuance of a Permit. 

2)     The Pest Control Plan shall represent best management industry practices and shall use the
                     most stringent developments in industry regulations, guidelines and technology, regardless
                       of the size of the operation.  

3)      Upon every visit to the swine operation, regardless of reason for visit, Local Health Department officials  shall require updates of pest problems experienced on the property and control measures taken, including type of pest problem, action taken and results.  All information shall be documented and action taken, in accordance with Section 10 “Enforcement”.

Section 8       Environmental Assessment

In the absence of standard regulations requiring an Environmental Assessment for all size swine operations, from the agricultural industry and State Laws requiring the same, the Town of Tewksbury shall require an Environmental Assessment each year, as required in the “Permit Application for Keeping Swine” (Section 2).

1)      The submitted Environmental Assessment shall be written by a qualified industry professional and reviewed by the Approving Authority prior to issuance of a Permit. 

2)      The Environmental Assessment shall represent Best Management Industry Practices and shall use the most stringent developments in industry regulations, guidelines and technology, regardless of the size of the operation. 

3)      No swine facility shall willfully or through negligence, cause, suffer, allow or permit the drainage of any liquid effluent containing urine and/or fecal matter from the property to flow over the surface of the ground where it can flow to abutting property, public way, watercourse, body of water, or wetland area.

4)      All insecticides used to control pests or insects shall be approved by the Department of Public Health and the Department of Environmental Protection and shall be applied in accordance with the instruction for the use of that insecticide.

5)      Upon every visit to the swine operation, regardless of reason for visit, Local Health Department officials  shall require updates of pest problems experienced on the property and control measures taken, including type of pest problem, action taken and results.  All information shall be documented and action taken, in accordance with Section 10 “Enforcement”.

Section 9       Air Quality Protection for Residents from Swine Operations

Residents shall have the right to breathe air, free from odorous and harmful gases and free from microscopic particulates of swine waste.

Residents shall have the right to use and enjoy their property and protect the value and/or marketability of their property.

 Acceptable odor standards are designed to protect air quality for neighboring residents. Local Health Department and Board of Health officials are sworn to protect and promote public health and welfare, including stress that may be the result of excessive odors on abutters of swine operations.

The measurement of odor generation rate and odor intensity is a developing science.   However, it is widely recognized that factors like the way a farm is designed and the use of best management practices can minimize odor emissions.

The same standards of air quality for all other industry and businesses in the United States including the State of Massachusetts, should apply to agricultural operations keeping swine. The agricultural industry has not provided odor and air quality standards for abutters of agricultural operations keeping swine. 

In the absence of State Laws setting acceptable odor levels and due process for residents negatively affected by swine odor, the Town of Tewksbury shall determine standards for swine odor relief and prevention within our community.

1)      All agricultural operations keeping swine shall use best management industry practices and shall use the most stringent developments in industry regulations, guidelines and technology, regardless of the size of the operation.  Swine operations shall use the recommendations, and the latest research and technology, of the Environmental Protection Agency, Department of Agriculture, National Resources Conservation Service and other industry agencies and organizations, to minimize odors.

2)      Decomposition of piggery wastes generates by-products or compounds which produce strong odors. Odor generation from swine waste shall be minimized by the barn design, effluent collection and storage location, carcass disposal, and manure spreading. Swine waste shall be managed in a way as to minimize odor generation and shall use best management industry practices to minimize odors.

3)      Odors are influenced by climate and topography, separation distance plays an important role in the dispersion of odors from swine operations, therefore, swine operations shall be established or moved to a sufficient distance from residences, to ensure that dispersion effectively limits odors and frequencies under the expected range of atmospheric conditions.  If a sufficient distance to disperse odor cannot be established, more additional and/or more prudent measures shall be taken on behalf of the swine operation, to monitor air quality standards and ensure abutters rights to clean air and use and enjoyment of their property.

4)      The Director of Health or its agent and the Board of Health shall examine all the factors influencing swine operation odors and take action to relieve neighbouring residents. Each complaint shall be documented and shall include: Frequency, Intensity, Duration and Offensiveness.

5)      Sludge from swine waste is comprised of either completely or partially digested organic matter which when disturbed can be highly odorous.  When disturbed or irrigated, effluent generates odors through the release of offensive gases and by spray drift of fine aerosols through the atmosphere. The application of swine effluent shall be managed so that effluent infiltrates, or is incorporated into the soil within 24 hours following application.

6)      There shall not be application of swine waste during prolonged wet periods or when runoff would occur. Timing of effluent application shall be considered, during the week days when most residents are at work. It shall not occur on weekends or holidays, or when prevailing weather conditions would cause odors. During times when swine waste cannot be applied to soil, alternative methods of manure management shall be used, using best management practices.

 

7)      Carcass disposal shall be well designed and managed to prevent odor and spread of diseases.  Burial sites shall be designed to prevent entry of upslope runoff water. The whole carcass shall be covered with a layer of soil immediately after placement in the pit. If composting is used, the carcass should be covered with at least 300 mm of sawdust or other composting substrate. Records shall be kept of deaths and location of burial.

Section 10     Enforcement

In the absence of standard regulations for swine regulation enforcement from the Agricultural Industry, for all swine operations, and State Laws and local regulations which provide inadequate due process and accountability for citizens neighboring swine operations, the Town of Tewksbury exercises its right to define enforcement standards for our local Health Department and Board of Health.

Local Department of Health officials or its agent and the Board of Health shall be the enforcement agent for the following requirements;

1)      Regular inspections shall be performed, as needed, without prior notification, in accordance with Sections 4 through 10 in this Act.

2)      Non-compliance of any regulations for keeping swine shall be documented  and permits may be revoked or suspended  if it is determined that any of the following has occurred:

-          Continued keeping of swine constitutes a public safety of health risk.

-          The animals are not receiving proper care.

-          The facts contained in the application or as represented by the application to the Approving Authority are inaccurate.

-          The permit holder is keeping swine in greater numbers than indicated on the current permit.

-          Abutter’s rights to use and enjoy their property have been violated.

-          The health and wellbeing of the citizens are negatively impacted

-          The best management practices and most stringent industry standards and recommendations have not been used and/or implemented by the operation.

-          Violations occur to “Tewksbury’s Agricultural Regulations for Keeping Swine”

3)      There will be a hearing and issue of conditions on a revocation of a permit. The holder of any permit revoked or suspended, shall be notified of such action by certified mail.  The person aggrieved may petition the Approving Authority for a public hearing within ten (10) days of notification.  The applicant may be permitted to keep said swine on the premise until the Approving Authority hearing, so long as it does not pose an immediate threat to the public health and safety, in which case the swine must be removed within twenty-four (24) hours of the receipt of the notice.

 

4)      Complaints shall be logged and investigated immediately.  

5)       Citizens shall be given every opportunity to express their concerns during a public hearing and said concerns shall be remedied by both the Department of Health or its agent and the Board of Health.

6)      Unresolved problems shall be remedied by revoking the permit for swine.

 7)  Failure to comply with any provision of Tewksbury’s Agricultural Regulations for Keeping Swine, Section 1
      through 10 inclusive, is punishable by civil or criminal prosecution in a court of competent jurisdiction.

Section 11     Severability

            If any provisions of these regulations are declared invalid or unenforceable, the other provisions shall not be affected by this determination and shall remain in full force and effect.