§ 23.1-06-15 — Regulation of odors - Rules

1. In areas located within a city or the area over which a city has exercised extraterritorial
zoning as defined in section 40-47-01.1, a person may not discharge into the ambient

air any objectionable odorous air contaminant that measures seven odor concentration
units or higher outside the property boundary where the discharge is occurring. If an
agricultural operation as defined by section 42-04-01 has been in operation for more
than one year, as provided by section 42-04-02, and the person making the odor
complaint was built or established after the agricultural operation was established, the
measurement for compliance with the seven odor concentration units standard must
be taken within one hundred feet [30.48 meters] of the subsequently established
residence, church, school, business, or public building making the complaint rather
than at the property boundary of the agricultural operation. The measurement may not
be taken within five hundred feet [.15 kilometer] of the property boundary of the
agricultural operation.
2. In areas located outside a city or outside the area over which a city has exercised
extraterritorial zoning as defined in section 40-47-01.1, a person may not discharge
into the ambient air any objectionable odorous air contaminant that causes odors that
measure seven odor concentration units or higher as measured at any of the following
locations:
a. Within one hundred feet [30.48 meters] of any residence, church, school,
business, or public building, or within a campground or public park. An odor
measurement may not be taken at the residence of the owner or operator of the
source of the odor, or at any residence, church, school, business, or public
building, or within a campground or public park, that is built or established within
one-half mile [.80 kilometer] of the source of the odor after the source of the odor
has been built or established;
b. At any point located beyond one-half mile [.80 kilometer] from the source of the
odor, except for property owned by the owner or operator of the source of the
odor, or over which the owner or operator of the source of the odor has
purchased an odor easement; or
c. If a county or township has zoned or established a setback distance for an animal
feeding operation which is greater than one-half mile [.80 kilometer] under either
section 11-33-02.1 or 58-03-11.1, or if the setback distance under subsection 7 is
greater than one-half mile [.80 kilometer], measurements for compliance with the
seven odor concentration units standard must be taken at the setback distance
rather than one-half mile [.80 kilometer] from the facility under subdivision b,
except for any residence, church, school, business, public building, park, or
campground within the setback distance which was built or established before the
animal feeding operation was established, unless the animal feeding operation
has obtained an odor easement from the pre-existing facility.
3. An odor measurement may be taken only with a properly maintained scentometer, by
an odor panel, or by another instrument or method approved by the department of
environmental quality, and only by inspectors certified by the department who have
successfully completed a department-sponsored odor certification course and
demonstrated the ability to distinguish various odor samples and concentrations. If a
certified inspector measures a violation of this section, the department may send a
certified letter of apparent noncompliance to the person causing the apparent violation
and may negotiate with the owner or operator for the establishment of an odor
management plan and best management practices to address the apparent violation.
The department shall give the owner or operator at least fifteen days to implement the
odor management plan. If the odor problem persists, the department may proceed with
an enforcement action provided at least two certified inspectors at the same time each
measure a violation and then confirm the violation by a second odor measurement
taken by each certified inspector, at least fifteen minutes, but no more than two hours,
after the first measurement.
4. A person is exempt from this section while spreading or applying animal manure or
other recycled agricultural material to land in accordance with a nutrient management
plan approved by the department of environmental quality. A person is exempt from
this section while spreading or applying animal manure or other recycled agricultural

material to land owned or leased by that person in accordance with rules adopted by
the department. An owner or operator of a lagoon or waste storage pond permitted by
the department is exempt from this section in the spring from the time when the cover
of the permitted lagoon or pond begins to melt until fourteen days after all the ice cover
on the lagoon or pond has completely melted. Notwithstanding these exemptions, all
persons shall manage their property and systems to minimize the impact of odors on
their neighbors.
5. This section does not apply to chemical compounds that can be individually measured
by instruments, other than a scentometer, that have been designed and proven to
measure the individual chemical or chemical compound, such as hydrogen sulfide, to
a reasonable degree of scientific certainty, and for which the department of
environmental quality has established a specific limitation by rule.
6. For purposes of this section:
a. "Business" means a commercial building used primarily to carry on a for-profit or
nonprofit business which is not residential and not used primarily to manufacture
or produce raw materials, products, or agricultural commodities;
b. "Campground" means a public or private area of land used exclusively for
camping and open to the public for a fee on a regular or seasonal basis;
c. "Church" means a building owned by a religious organization and used primarily
for religious purposes;
d. "Park" means a park established by the federal government, the state, or a
political subdivision of the state in the manner prescribed by law;
e. "Public building" means a building owned by a county, city, township, school
district, park district, or other unit of local government; the state; or an agency,
industry, institution, board, or department of the state; and
f. "School" means a public school or nonprofit, private school approved by the
superintendent of public instruction.
7. a. In a county or township that does not regulate the nature, scope, or location of an
animal feeding operation under section 11-33-02.1 or section 58-03-11.1, the
department shall require that any new animal feeding operation permitted under
chapter 61-28 be set back from any existing residence, church, school, business,
public building, park, or campground.
(1) If there are fewer than three hundred animal units, there is no minimum
setback requirement.
(2) If there are at least three hundred animal units but no more than one
thousand animal units, the setback for any animal operation is one-half mile
[.80 kilometer].
(3) If there are at least one thousand one animal units but no more than two
thousand animal units, the setback for a hog operation is three-fourths mile
[1.20 kilometers], and the setback for any other animal operation is one-half
mile [.80 kilometer].
(4) If there are at least two thousand one animal units but no more than five
thousand animal units, the setback for a hog operation is one mile [1.60
kilometers], and the setback for any other animal operation is three-fourths
mile [1.20 kilometers].
(5) If there are five thousand one or more animal units, the setback for a hog
operation is one and one-half miles [2.40 kilometers], and the setback for
any other animal operation is one mile [1.60 kilometers].
b. The setbacks set forth in subdivision a do not apply if the owner or operator
applying for the permit obtains an odor easement from the pre-existing use that is
closer.
c. For purposes of this section:
(1) One mature dairy cow, whether milking or dry, equals 1.33 animal units;
(2) One dairy cow, heifer or bull, other than an animal described in paragraph 1
equals 1.0 animal unit;

(3) One weaned beef animal, whether a calf, heifer, steer, or bull, equals
0.75 animal unit;
(4) One cow-calf pair equals 1.0 animal unit;
(5) One swine weighing fifty-five pounds [24.948 kilograms] or more equals
0.4 animal unit;
(6) One weaned swine weighing less than fifty-five pounds [24.948 kilograms]
equals 0.1 animal unit;
(7) One horse equals 2.0 animal units;
(8) One sheep or weaned lamb equals 0.1 animal unit;
(9) One turkey equals 0.0182 animal unit;
(10) One chicken equals 0.01 animal unit;
(11) One duck or goose equals 0.2 animal unit; and
(12) Any weaned livestock not listed in paragraphs 1 through 11 equals 1.0
animal unit per each one thousand pounds [453.59 kilograms], whether
single or combined animal weight.
d. In a county or township that regulates the nature, scope, or location of an animal
feeding operation under section 11-33-02.1 or 58-03-11.1, an applicant for an
animal feeding operation permit shall submit to the department with the permit
application the zoning determination made by the county or township under
subsection 9 of section 11-33-02.1 or subsection 9 of section 58-03-11.1, unless
the animal feeding operation is in existence by January 1, 2019, and there is no
change in animals or animal units which would result in an increase in the
setbacks provided for in this section. The department may not impose additional
odor setback requirements.
e. An animal feeding operation is not subject to zoning regulations adopted by a
county or township after the date an application for the animal feeding operation
is submitted to the department, provided construction of the animal feeding
operation commences within three years from the date the application is
submitted. Unless there is a change to the location of the proposed animal
feeding operation, this exemption remains in effect if the department requires the
applicant to submit a revised application.
8. A permitted animal feeding operation may expand its permitted capacity by twenty-five
percent on one occasion without triggering a higher setback distance.
9. A county or township may not regulate or impose restrictions or requirements on
animal feeding operations or other agricultural operations except as permitted under
sections 11-33-02.1 and 58-03-11.1.