Do you have a dust control question?
Thal (480-947-1911) for a no-charge, five-minute phone consultation
Like it or not, Valley contractors must learn
and understand their obligations with respect to dust-control. Increased
awareness and a commitment to developing and implementing a
dust-control plan (below)
will go far to minimize the loss of time and money that can result from
This is a rapidly
changing issue that requires contractors' ongoing attention. To help contractors
keep their primary focus on their business, Lang & Klain has developed resources
that may prove useful to contractors in complying with the County's mandate and
in mitigating the financial penalties of non-compliance.
Local contractors and developers
must implement effective control measures and work
strategies in order to avoid a notice of violation and fine. (Though not
required to have a dust-control plan, per se,
subcontractors must register and pay a fee. In addition,
subcontractors can be cited for violations of their own making.) Developing a
plan usually begins with a dust-control permit, which the
County requires on all jobsites that will disturb more than a tenth of an acre.
To obtain a permit, a
contractor must first submit a
dust-control plan for County approval. A dust-control plan involves the
implementation of control measures before, during and after conducting any
dust-generating operation. (On sites larger than five acres, the permit holder
must designate an employee responsible for dust-control plan compliance.) Common control measures include watering, using wind
barriers, maintaining and cleaning vehicles, chemically stabilizing the soil,
and using track-out control devices. To develop a dust-control plan and
contingency measures, it may be useful to engage the services of an
environmental consulting firm.
MCAQD website offers current information on dust
compliance — in particular, its very useful
Dust Abatement Handbook — and related
Once a dust-control plan
has been formulated, it is the contractor’s responsibility to:
read and understand the
dust-control permit and plan and have them available at the jobsite;
dust-control plan and ensure that all employees, workers and subcontractors
know their responsibilities;
use contingency control
measures when primary controls are ineffective;
monitor the worksite
for compliance with the dust-control plan; and
keep a daily log
monitoring the implementation and effectiveness of the control measures.
While it is not
officially required, contractor designation of a dust-control site coordinator
has shown to be a sound and, for all practical purposes, necessary component of
a dust-control plan. The site coordinator must have authority over dust issues,
and he should have a fully trained backup to serve in his capacity during his
The consequences of
noncompliance are not limited to the fines discussed earlier. Any entity or
person who violates the MCAQD rules may be subject to injunctive measures that
bring all work to a halt. Further, violators may be subject to misdemeanor or
felony charges. Moreover, if a contractor fails to comply, the owner or
developer may also be held responsible for the violation.
Environmental, LLC, as of mid-July 2015:
2,653 Rule 310 dust permits had been issued
7,972 dust inspections had taken place
17% of all inspections had resulted in a
For decades, air quality in the Phoenix
area has been a concern of the U.S. Environmental Protection Agency (EPA), as
levels of dust and other particulates were consistently above federal Clean Air
Act standards. Under the threat of losing local regulatory control and federal
transportation funding, in the mid-2000s the
Maricopa County Air Quality Department (MCAQD)
increased the number
of compliance inspectors and tightened the local air-quality rules. The
construction industry fell under especially close scrutiny, and notices of
violations and stiff fines were assessed against contractors whose projects were
the source of excessive dust. Subcontractors were also at risk.
After three straight years of air
quality compliance by Maricopa County, in January 2014 the EPA accepted the
County's 2012 plan for reducing dust particulates and announced it would lift
the Valley's non-attainment status.
That was good news for the County and many other stakeholders, but non-compliant
contractors remain a prominent target for County air quality inspectors. Thus,
contractors and, in many cases, subcontractors cannot afford to relax their dust-control plans.
Step-by-Step: Anatomy of a Dust Violation
Dust Inspection Tips for
Mike Thal: Lang & Klain's Dust-Control Attorney
What should be in a dust-control plan? Is there anything that should not be
Rule 310 spells out what a plan must contain. In a nutshell, a dust-control plan
must address anything that will be done on the jobsite to comply with the rules,
including such things as document storage and log maintenance, watering
schedules, the amounts of water used, a description of the trackout devices
used, right down to how contractor and subcontractor permits will be displayed.
If it has anything to do with dust, it should be in the dust-control plan.
How important is it to put measures in
your plan to determine its effectiveness?
Having a method for measuring plan effectiveness is very important, for two
reasons. First, it helps ensure continued compliance. Second, it can reduce the
amount of the fine in case a Notice of Violation is issued. Specifically, a good
dust-control plan includes a schedule by which the environmental consultant
performs the same on-site testing that an inspector would perform. Testing
generally measures opacity, stabilization, sieve analysis, and so on.
How can Lang & Klain help us
comply with dust control regulations?
In addition to
helping you be aware of Rule 310 and the required permits and fees, we try to
focus your attention on the practical things that lead to dust-control
violations and what to do when an inspector comes to your site (see
the Anatomy of a Dust Control Violation).
What happens if our
dust-control plan is approved, we follow it, and we receive a Notice of
The good news is that having a good dust-control plan would be a mitigating
factor in terms of the size of the fine. The bad news is that the County will
not sympathize with the “compliance is impossible” defense. The rules are
essentially based on dust control rules adopted in Clark County, Nevada, several years ago.
If challenged on the reasonableness of the rules, Maricopa County will likely
point to Clark County as proof that compliance is possible.
How can Lang & Klain help us when we receive a Notice of Violation?
If you receive a Notice of Violation, we
can arrange for independent testing to challenge the inspector’s findings. An
effective challenge can mitigate the fine, and in some cases cause the Notice of
Violation to be dismissed entirely.
important, we can protect you from being steamrolled by the County and make sure
your rights are protected. We attend settlement negotiations and advise you on
whether the County’s settlement offer is fair. If the case goes to a hearing, we
present testimony and other evidence that we believe will get the best possible
If we receive a Notice of
Violation, how can we minimize the fines and penalties?
Generally, make sure
everyone on the jobsite understands your dust-control plan and follows it. If
the inspector finds a violation but believes that everyone is making a
good-faith effort to enforce your plan, that by itself can reduce the fine.
What will happen if
we don't get the proper permits?
requires a dust-control plan for any site larger than a tenth of an acre.
Oversight is performed by a County control officer. If a contractor does not
have a required permit, he has virtually no defense to a notice of violation,
and the absence of the permit will be an aggravating factor in calculating his
fine, especially if the County finds that his failure to obtain a permit was
deliberate or knowing.