N.M. Code R. § 20.11.20.12

Current through Register Vol. 35, No. 12, June 25, 2024

Section 20.11.20.12 - GENERAL PROVISIONS

A. Each person shall use reasonably available control measures or any other effective control measure during active operations or on inactive disturbed surface areas, as necessary to prevent the release of fugitive dust, whether or not the person is required by 20.11.20 NMAC to obtain a fugitive dust control permit. It shall be a violation of 20.11.20 NMAC to allow fugitive dust, track out, or transported material from any active operation, open storage pile, stockpile, paved or unpaved roadway disturbed surface area, or inactive disturbed surface area to cross or be carried beyond the property line, right-of-way, easement or any other area under control of the person generating or allowing the fugitive dust if the fugitive dust may:

(1) with reasonable probability injure human health or animal or plant life;

(2) unreasonably interfere with the public welfare, visibility or the reasonable use of property; or

(3) be visible for a total of 15 minutes or more during any consecutive one hour observation period using the visible fugitive dust detection method in 20.11.20.26 NMAC or an equivalent method approved in writing by the department.

B. Failure to comply with 20.11.20.12 NMAC, a fugitive dust control permit, plan, term or condition shall be a violation of 20.11.20 NMAC.

C. Prior to issuing a fugitive dust control construction permit authorizing commencement of active operations, the department shall:

(1) document, in the form of photographs in electronic or hard copy formats or video recordings, the conditions of the properties that are closest to the property subject to the permit and any other properties the department believes are appropriate;

(2) maintain the documentation for one year after completion of the permitted project;

(3) include in the permit a requirement that the permittee remedy damage to real properties caused by a violation of the permit; and

(4) make the documentation available as evidence, upon request, to all parties involved in a property damage dispute allegedly caused by fugitive dust.

D. A permittee whose violation of 20.11.20 NMAC results in fugitive dust being deposited upon real property beyond the limits of the permitted area shall take all actions necessary to remedy damage caused by a violation proven with credible evidence. Such remedies may include, but not be limited to, compensation, removal of the fugitive dust and/or repair of any damage after obtaining permission from property owners or operators before doing any remedial work on the damaged property. It shall be a separate violation of 20.11.20 NMAC to fail to remove the fugitive dust and repair the damage as specified in a written schedule or any extension agreed to by the permittee and the owner of the damaged property. If the parties cannot agree to a schedule, the department may establish deadlines and failure to comply with the deadlines shall be a separate violation of 20.11.20 NMAC. No violation will occur if the failure to perform the corrective action is for reasons beyond the control of the person performing the work including without limitation acts of God or government preemption in connection with a national emergency or if the owner of the allegedly damaged property refuses to grant reasonable permission and access to conduct the remediation activities.

E. Stockpiles shall be no higher than 15 feet above the existing natural or man-made grade that abuts the stockpile, unless otherwise approved in advance and in writing by the department.

F. Each person shall comply with all applicable provisions of the Clean Air Act, the New Mexico Air Quality Control Act, joint air quality control board ordinances, regulations of the board, and permits issued by the department.

N.M. Code R. § 20.11.20.12

20.11.20.12 NMAC - Rp, 20.11.20.12 NMAC, 3/17/08