N.M. Code R. § 20.11.20.16

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

Section 20.11.20.16 - HIGH WIND EVENT REQUIREMENTS; HIGH WIND EVENT AFFIRMATIVE DEFENSE

A. General requirements: during a high wind event, all persons responsible for fugitive dust control activities on publicly or privately-owned real property where active operations are occurring or inactive disturbed surface areas exist shall use reasonably available control measures or other effective measures to prevent fugitive dust from leaving the property. All such persons shall implement the control measure required by Paragraph (5) of Subsection C, of 20.11.20.16 NMAC.

B. High wind affirmative defense: if the department initiates an administrative enforcement action against either a permittee or a responsible person, or both (respondent) alleging a violation of a permit or 20.11.20 NMAC during a high wind event, the respondent may assert an affirmative defense in the enforcement action if the respondent establishes by credible evidence that respondent complied with the requirements established in Subsection C of 20.11.20.16 NMAC. In order to successfully assert the affirmative defense, during the entire duration of a permit the respondent shall utilize the applicable controls described in Subsection C of 20.11.20.16 NMAC, regardless of whether or not a high wind event exists, with the exception of Paragraph (5) of Subsection C of 20.11.20.16 NMAC, which shall be required during a high wind event. The affirmative defense shall not be available if respondent has failed to diligently perform the control measures specified in Paragraphs (1) through (5) of Subsection C of 20.11.20.16 NMAC. The availability of the affirmative defense shall not change the respondent's potential liability for any damage caused by fugitive dust leaving the permitted property, and the affirmative defense shall not change the permittee's obligation to remove fugitive dust originating from the permitted source, or otherwise remedy the damage, as required by Subsection D of 20.11.20.12 NMAC. The board, its members, and employees and officials of the city of Albuquerque and the county of Bernalillo shall not incur individual liability for damage to persons or property caused by fugitive dust leaving the permitted property.

C. Mandatory control measures: to assert a high wind event affirmative defense as described in Subsection B of 20.11.20.16 NMAC, a permittee shall utilize the applicable control measures in Paragraphs (1) and (2) of Subsection C of 20.11.20.16 NMAC on an ongoing basis. Without prior notice to the department, the permittee may use the measure in Paragraph (3) of Subsection C of 20.11.20.16 NMAC in place of the measure in Paragraph (1) of Subsection C of 20.11.20.16 NMAC. After receiving written permission from the department, the permittee may substitute the measures in Paragraph (4) for the measures in Paragraphs (1) and (2), or (2) and (3) of Subsection C of 20.11.20.16 NMAC. All permittees, whether or not they intend to assert a high wind affirmative defense, shall implement the measure in Paragraph (5) of Subsection C of 20.11.20.16 NMAC during a high wind event.

(1) Use of wet suppression sufficient to attain and maintain eighty percent of the optimal moisture content of the soil as determined by a proctor analysis performed by a certified public or private materials testing laboratory. For proctor analyses, either the standard proctor (ASTM D-698) or the modified proctor (ASTM D-1557) may be used. Daily, representative testing of the soil moisture content shall be taken on exposed new surfaces after the top one-half to one inch of the soil is removed at the sampling area. Three times each day, at intervals that are equally spaced throughout the work day, the respondent shall test and record the soil moisture content at three separate representative locations on the permitted property, which will result in a minimum of nine tests each day. To demonstrate compliance, any set of three tests shall average 80 percent of the optimal moisture content of the soil and no individual test shall be less than 70 percent of the optimal moisture content of the soil. Failure to meet the soil moisture content standards as required by Subsection C of 20.11.20.16 NMAC for any set of three tests shall require that the respondent immediately apply necessary control measures at the portion or portions of the representative area where the soil moisture content tested as insufficient, and re-test the same representative locations, as necessary, until the soil moisture content complies with the standards as required by Subsection C of 20.11.20.16 NMAC. The respondent or the department shall use a reasonably accurate commercially-available instrument to determine soil moisture content. Where possible, methods for determining soil moisture content shall be consistent with ASTM standards (e.g. ASTM D-1556-90 - sand cone test, ASTM D2922-91 - nuclear density). All tests for soil moisture content shall be documented and retained for the duration of the permit, and shall be made available to the department upon request.

(2) Use of properly-maintained fabric fencing material around the perimeter of the disturbed surface area with openings no wider than necessary to allow vehicles to enter or exit the area. The fencing material shall be anchored approximately six inches below the surface on the bottom edge, and when installed shall be approximately 24 or more inches above the existing natural or man-made surface. The fence shall be installed in a durable manner. For example, one durable installation method involves use of steel T-posts spaced approximately eight to 10 feet apart with steel mesh wire used as a reinforcement backing to the fabric. Use of fabric fencing standards associated with the national pollutant discharge system may be approved by the department if they are consistent with the requirements of Paragraph (2) of Subsection C of 20.11.20.16 NMAC. The department may also approve alternative fencing material if it provides equal or better control of fugitive dust. Alternatives may include solid walls or sturdy fences that effectively control fugitive dust. To maintain effectiveness of the fence, fugitive dust that accumulates on either side of the fencing shall be removed promptly.

(3) Use of chemical dust suppressants applied in amounts, frequency and rates recommended by the manufacturer, and maintained as recommended by the manufacturer sufficient to substantially reduce fugitive dust leaving the fugitive dust source while active operations are idle, usually used when active operations are suspended for more than 48 hours.

(4) A department-approved alternative dust control measure or measures that provide fugitive dust control that is equal to or better than measures in Paragraphs (1) and (2), or (2) and (3) of Subsection C of 20.11.20.16 NMAC. Before a permittee may substitute an alternative control measure, the department must approve the control measure in writing as a permit amendment.

(5) Stopping active operations that are capable of producing fugitive dust.

D. Active operations during an announced high wind event: The department shall use national weather service (NWS) data, recorded at either the Albuquerque international airport (Sunport) or Double Eagle II airport, in order to determine forecasted or actual wind speeds when announcing that a high wind event may or will occur. Wind velocity measurements taken in the field by the department, the responsible person, or permittee shall be taken at a representative active operation area on the permitted property or by the department within 200 feet of the permitted property being evaluated to determine whether active operations can be continued, resumed or initiated. Wind measurement results shall be documented and retained throughout the duration of the permit, and shall be made available to the department and the permittee and/or person responsible for controlling fugitive dust at the permitted property. A continuous one-hour wind velocity measurement with an average wind speed of less than 20 miles per hour, along with on-site stable soil conditions and effective dust control measures, as stated in the fugitive dust control plan, shall be sufficient to allow active operations during an announced high wind event. However, fluctuations in average wind speed and high wind gusts may re-occur and can cause ineffective dust control during active operations, which may result in a violation of 20.11.20 NMAC. Therefore, the responsible person or permittee shall continuously assess wind conditions and on-site soil conditions during an announced high wind event and shall maintain the reasonably available control measures which include stopping active operations as required by Paragraph (5) of Subsection C of 20.11.20.16 NMAC.

E. Limitations on use of affirmative defense: A respondent may not assert the affirmative defense described in 20.11.20.16 NMAC:

(1) against an action for injunctive relief; or

(2) to prohibit the EPA or a citizen's group from taking an enforcement action.

N.M. Code R. § 20.11.20.16

20.11.20.16 NMAC - Rp, 20.11.20.16 NMAC, 3/17/08