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DUST CONTROL

Despite the EPA's acceptance of Maricopa County's air quality plan, contractors and many subcontractors still occupy a place of prominence on inspectors' radar screens, and notices of violation and fines remain a real threat.

Updated 04/19/2017

Mike Thal, Dust Control Attorney

 

Mike Thal

 

Do you have a dust control question?

Call Mike 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 non-compliance.

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.

Dust-Control Planning

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.

The MCAQD website offers current information on dust compliance — in particular, its very useful Dust Abatement Handbook — and related applications/forms and rules/regulations.

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;

  • implement the 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 absence.

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.

Local Dust Control Statistics

According to Earthworks Environmental, LLC, as of mid-July 2015:

  • 2,653 Rule 310 dust permits had been issued year-to-date

  • 7,972 dust inspections had taken place

  • 17% of all inspections had resulted in a violation

Background

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.

Progress

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 Bulletin Board and Wallet

Mike Thal: Lang & Klain's Dust-Control Attorney

The Maricopa County Air Quality Department website offers current information on dust compliance — in particular, its very useful Dust Abatement Handbook (left).

What should be in a dust-control plan? Is there anything that should not be included?

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 Violation anyway?

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.

Perhaps more 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 result.

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?

Maricopa County 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.