DEMING, NEW MEXICO: CITY CODE

Title 11
BUILDING REGULATIONS

Chapter 5
WIND EROSION AND DUST CONTROL

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- 1: DEFINITIONS:
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- 2: PURPOSE; APPLICABILITY:
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- 3: GENERAL PROVISIONS:
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- 4: DUST CONTROL AND SOIL EROSION PLAN:
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- 5: REASONABLY AVAILABLE CONTROL MEASURES (RACMS):

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- 6: GENERAL AND NONCONSTRUCTION STANDARDS:
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- 7: CORRECTION OF VIOLATIONS:
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- 8: CITY NOT LIABLE:
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- 1: DEFINITIONS:

As used in this chapter, the following words and terms shall mean:

AMBIENT AIR: That portio n of the atmosphere, external to buildings, to which the general public has access. Land owned or controlled by the stationary source and to which public access is precluded by a fence, physical barriers, or other effective means is exempted from the ambie nt air.

APPLICANT: Any person, corporation, or public or private organization proposing a development which
would involve disturbance to the natural terrain.

CHEMICAL SOIL STABILIZATION/SUPPRESSIVE: A method of dust control implemented by any person to

m itigate emissions by applying petroleum resins, asphaltic emulsions, acrylics, adhesives, or any other approved material that are not prohibited for use by the city, the state environment department, the environmental protection agency, or any other law, r ule, or regulation.

CLEARING: Any activity that removes the vegetative surface cover.

CONSTRUCTION DEMOLITION ACTIVITIES: Any on site activities preparatory to or related to building alteration, rehabilitation, removal or razing, or improvement on real p roperty, including the placement and upkeep of mobile or manufactured homes or buildings. "Construction" also means construction of roadway systems including, arterials, expressways, interstates, tunnels, overpasses, bridges, interchanges, residential and commercial streets within a subdivision, and airport runway improvements.DISTURBED AREA: Any area in which the soil will be altered by grading, leveling, scraping, cut and fill activities, excavation, brush and timber clearing, grubbing, and unpaved soils on which vehicle operations and/or movement will or has occurred.

DUST CONTROL AND SOIL EROSION PLAN: A written description of all reasonably available control measures (RACMs) to be implemented at a work site and/or in transit to and from a work si te for any earthmoving, construction, or potential dust generating operation. Such written description may be incorporated into building and construction plans or a separate document submitted with said plans.

DUST GENERATION OPERATION: Any activity capab le of generating fugitive dust, including, but not limited to, activities associated with creating a disturbed area, construction and demolition activities, and the movement of vehicles on unpaved roadways or parking areas.

EROSION AND DUST CONTROL PLAN: A set of plans indicating the specific measures and sequencing to be used to control sediment and erosion on a development site during and after construction.

EROSION CONTROL: A measure that prevents erosion.

EXCAVATE: Any act by which earth, sand, grave l, or any other similar material is dug into, cut, removed, displaced, relocated, or bulldozed, and includes the resulting conditions.

FILL: Any act by which earth, sand, gravel, or any other similar material is placed or moved to a new location abovegrou nd. The fill is also the difference in elevation between a point of existing undisturbed ground and a designated point of higher elevation of the final grade.

FUGITIVE DUST OR DUST: Organic and inorganic particulate matter in quantities and of a duration that may with reasonable likelihood injure human or animal health or plant life, reduce safe visibility, cause property damage, or degrade visibility. Water vapor, steam, or particulate matter emissions emanating from a duct or stack of process equipment a re not fugitive dust.

GRADING: Excavation or fill of material, including the resulting conditions thereof.

GRUBBING: The process of digging up and removing the roots, trunk, branches and stems of all plants in
order to clear the land.

HIGH WIND EVENT: A climatological occurrence in which the average wind speed exceeds a threshold in which fugitive dust will be generated from undisturbed areas, naturally covered areas, disturbed areas, and construction sites, regardless of reasonably available control mea sure implementation. Notwithstanding other climatic conditions, the average wind speed for high wind events is a sustained wind speed of twenty five (25) miles per hour or greater.LAND DISTURBING ACTIVITY: Any physical land development activity which inc ludes such actions as clearance of vegetation, moving or filling of land, removal or excavation of soil or mineral resources or
similar activities.

NATURAL COVER: Any vegetation which exists on the property, prior to any construction activity or
achieved through vegetation restoration back to a natural state, including the placement of sod.

PALLIATIVE: Any agent used to lessen or reduce dust emissions.

PARTICULATE MATTER: Any material emitted or entrained into the air as liquid or solid particulate, with the exception of uncombined water.

START OF CONSTRUCTION: The first land disturbing activity associated with a development, including land preparation such as clearing, grading, and filling; installation of streets and walkways; excavation for basements, footings, piers, or foundations; erection of temporary forms; and installation of accessory buildings such as garages.

STRIPPING: Any activity that removes or significantly disturbs the vegetative surface cover, including clearing and grubbing operations

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VISIBLE DUST EMISSION: Dust of such opacity as to obscure an observer's view to a degree equal to or greater than an opacity of twenty percent (20%), for a period or periods aggregating more than three (3) minutes in any one hour.

WIND SPEED: The avera ge wind velocity, regardless of direction, based on a sixty (60) minute average from the nearest weather report or PM10 monitoring station, or by a portable wind instrument located at the site. (Ord. 1144, 7

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- 2: PURPOSE; APPLICABILITY:

A. Purpose And Intent: The purpose of this chapter is to protect and maintain the natural environment and to reduce the health effects caused by the creation of fugitive dust and wind erosion as a result of the operations and activities with new or existing c onstruction and development. This chapter is also intended to limit the negative health and safety impacts when natural events do occur, such as fugitive dust creation through high winds. Also, the actions required within this chapter are not intended,

nec essarily, to cease all manmade dust generation activities when such natural events occur and the actions taken to reduce dust generation may be overcome by the natural occurrence.

B. Applicability: The provisions of this chapter are applicable to any situ ation involving any disturbance to the terrain, topsoil or vegetative ground cover, including grading, grubbing, stripping, cut and fill activity and similar operations, upon any property within the city of Deming as provided for in thischapter. Complianc e with the requirements as described in this chapter shall not be construed to relieve the owner/applicant of any obligations to obtain necessary state or federal permits.

C. Exemptions: Any person seeking an exemption from any of the provisions of this c hapter shall submit a petition to the city building official for approval. The following activities are automatically exempted from the provisions of this chapter:

1. Regular agricultural operations, including cultivating, tilling, harvesting, growing, an d the raising of farm animals or fowl, excluding unpaved roads associated with such operations.

2. Governmental activities during emergencies, health or life threatening situations or in conjunction with any officially declared disaster or state of emerge ncy.

3. Operations conducted by essential service utilities to provide electricity, natural gas, oil and gas transmission, cable television, telephone, water and sewage during service outages and emergency disruptions.

4. Temporary use of unpaved roads a nd parking lots which generate less than twenty (20) vehicle trips per day for less than three (3) successive calendar days.

5. Excavations for cemeteries for burial of human or animal remains.

6. Existing quarry operations actively engaged in excavating rock, sand, and/or gravel. (Ord. 1144, 7

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- 3: GENERAL PROVISIONS:

A. Each person shall use reasonably available control measures (RACMs) to prevent a violation of this chapter. No person shall allow fugitive dust, track out, or transported material from any active operation, open storage pile, paved or unpaved roadway or disturbed surface area, or inactive disturbed surface area to be carried beyond the property line, right of way, easement or any other area under control of the person gener ating or allowing the fugitive dust. Failure to comply with this subsection shall be a violation of this chapter.

B. No person shall permit building materials or any construction waste or other materials to be blown from the site by the wind.

C. Failure to comply with a fugitive dust control term or condition shall be a violation of this chapter.

D. A person whose violation of this chapter results in fugitive dust being deposited upon land beyond the limits of the permitted area shall take all actions ne cessary to remedy damage caused by a violationproven with credible evidence. Such remedies may include, but are not limited to, compensation, removal of the fugitive dust and/or repair of any damage, obtaining permission from property owners or
operators before doing any work on the damaged property. It shall be a separate violation of this part to fail to remove the fugitive dust and repair the damage as specified in the written schedule or any extension agreed to by the person and the damaged property ow ner. No violation will occur if the failure to perform the corrective actions is for any reason 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 allegedly damaged property owner refuses to grant reasonable permission
and access to conduct the remediation activities.

E. The city, in adopting this chapter, shall collect a twenty five dollar ($25.00) permit fee for review of a
stand alone soil erosion and dust control plan. Otherwise, the fee will be considered as incorporated in other permit fees being collected at the time of the review. (Ord. 1144, 7

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- 4: DUST CONTROL AND SOIL EROSION PLAN:

In order to obtain permit approv al for any land disturbing activity involving a site of three thousand five hundred (3,500) square feet or more, and prior to the issuance of any building permit and prior to the commencement of any activity on the site, the applicant shall file with the b uilding official a soil erosion and dust control plan and shall obtain the building official's approval of such plan. In assessing the plan, the building official may consult with any person, agency, or organization he or she deems appropriate.

The follow ing constitutes the minimum information required in the control plan as part of any building or subdivision development:

A. Name, address and phone number of person(s) responsible for the preparation, submittal and implementation of the control plan.

B. A plot or plat of survey of the site which describes:

1. The total area of land surface to be disturbed and the total area of the entire project site, in areas or square feet, depending on scale;

2. The operation(s) and activities to be carried out on th e site;

3. All actual and potential sources of fugitive dust emissions on the site.

C. A description of RACMs or combination thereof to be applied during all periods of dust generating operations to each of the fugitive dust sources described on the plot or plat. For each source identified at least one control measure must be implemented. The same control measure(s) may be used for more than one dust generating activity.D. Approval and issuance of the building and/or subdivision construction permit(s) a nd the approval of all outlined RACMs contained within the control plan shall mandate the implementation of said RACMs by the developer, contractor, builder, owner, and/or agents as part of construction activities. (Ord. 1144, 7

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- 5: REASONAB LY AVAILABLE CONTROL MEASURES (RACMS):

Reasonably available control measures to be implemented in accordance with this chapter may include, but are not limited to, the following:

A. Using dust suppressants applied in amounts and rates recommended by the manufacturer;

B. Using wet suppression;

C. Upwind windbreaks, including fabric fences;

D. Starting construction at the location that is upwind from the prevailing wind direction and stabilizing disturbed areas before disturbing additional areas;

E. Sto pping active operations during high wind;

F. Cleanup and removal of track out material;

G. Retaining natural vegetation during the construction phase of building excluding the building pad site;

H. Utilizing existing or natural vegetation as part of the required landscaping for the site;

I. Temporary seeding or revegetation for soil stabilization when grades are not ready for permanent seeding;

J. Surfacing with gravel or other mulch material of a size and density sufficient to prevent surface
material from being airborne;

K. Mulching and crimping of straw or hay as specified;

L. Installing permanent perimeter and/or interior fence walls;

M. Designing subdivisions of building sites to utilize existing predevelopment grades;

N. Applying palliatives o r chemical soil suppressant/stabilizer for idle construction areas;O. Restricting access to lot by subcontractors by providing parking areas. (Ord. 1144, 7

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- 6: GENERAL AND NONCONSTRUCTION STANDARDS:

A. Ground Cover Removal Prohibited: No person, no matter the size of the property, shall disturb the topsoil or remove ground cover on any real property within the city limits and thereafter allow the property to remain unoccupied, unused, vacant, or undeveloped unless reasonable actions are ta ken to prevent generation of dust. Such reasonable actions must be submitted to the building official in the form of a wind erosion and dust control plan and must be approved by the building official prior to any removal of ground cover by the applicant.

B. Vacant Land; Weed Eradication And Dust Suppression:

1. For all vacant or underdeveloped lots, weed eradication is limited to removal of specific weeds only through mowing or hoeing and not the removal of natural vegetation. Clearing of the entire lot i s prohibited.

2. Once weeds are removed or mowed, dust suppression can be achieved through watering, chemical suppressant application, or the expansion of natural, nonweed vegetation areas on site. Natural vegetation shall consist of those plant varieties that are indigenous to New Mexico or that are determined to be native or natural plant varieties by the city building official.

C. Storage Of Materials: Actions shall be taken to ensure that such areas or uses with the potential of becoming or generatin g fugitive dust and particulate matter, shall be covered, moistened, compacted, or otherwise treated to prevent fugitive dust creation.

D. Existing Operations: For existing operations, ongoing, and/or permanently sited institutional, commercial and/or ind ustrial facilities or operations which may continuously generate fugitive dust, individual control plans with the corresponding RACMs shall be submitted to the building official for approval. Approval shall be made by the building official or his or her de signee and shall be communicated in writing to the property/business owner. (Ord. 1144, 7

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- 7: CORRECTION OF VIOLATIONS:

A. Notification: Where a person fails to comply with control measures approved by the building official or with any provision of this chapter, the building official or his or her designee, or city code enforcement officer, shall notify the person of that f act and specify a period of time in which the person must achieve compliance. Failure to comply within a twenty four (24) hour minimum or within the time determined by the city constitutes grounds for a notice of violation. The building official may also i ssue astop work order where a building permit has been issued. Correction of conditions may include the amendment of plans to reflect additional or new control measures.

B. Remedial Action: The city or its designated agent, after proper notice, may enter upon any real property where dust is being generated and take such remedial and corrective action as he or she deems necessary when the owner, occupant, operator, or any tenant, lessee, or holder of any possessory interest or right in the involved land fa ils to do so.

C. Costs: Any costs incurred in connection with any remedial or corrective action taken by the city, pursuant to this chapter, shall be assessed against the owner of the property involved. Failure to pay the
full amount of such incurred cost s shall result in a lien against the property. The lien shall remain in full force and effect until all costs have been fully paid, which may include cost of collection and reasonable attorney fees.

D. Effective Date: For all existing emission sources gov erned by this chapter, the activity must be completed within six (6) months of the effective date hereof or be brought into full compliance. For existing, ongoing, and/or permanently sited institutional, governmental, commercial and/or industrial
facilitie s or operations, the dust control provisions of this chapter shall be submitted in writing, approved, and implemented within six (6) months of the effective date hereof.

E. Liability: All persons owning, operating, or in control of any equipment or proper ty who shall cause, permit, or participate in, any violation of this chapter shall be individually and collectively liable to any penalty or punishment imposed by and under this code.

F. Offenses: Any persons who violate any provision of this chapter, inc luding, but not limited to, any application requirement; any permit condition; any fee or filing requirement; any duty to allow or carry out inspection, or any requirement by the city is guilty of a misdemeanor and shall be punished as provided in section 1

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- 1 of this code, and a separate offense shall be deemed committed on each day during or on which a violation occurs or continues. (Ord. 1144, 7

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- 8: CITY NOT LIABLE:

A. Nothing contained in this chapter is intended to be construed to crea te or form the basis for any liability on the part of the city, or its officers, employees or agents for any injury or damage resulting from the failure of responsible parties to comply with the provisions of this chapter, or by reason or in consequence of any inspection, notice, order, certificate, building permit, permission or approval authorized or issued or done in connection with the implementation or enforcement of this chapter, or by reason of any action or inaction on the part of the city related i n any manner to the enforcement of this chapter by its officers, employees or agents.B. The building official, code enforcement officer, or other city employee charged with the enforcement of this chapter, acting in good faith and without malice on behal f of the city, shall not be personally liable for any damage that may accrue to persons or property as a result of any act required by the city, or by reason of any act or omission in the discharge of these duties. Any suit brought against the building off icial, code enforcement officer, or other city employee because of an act or omission performed in the enforcement of any provisions of this chapter shall be defended by the city.

C. Nothing in this chapter shall impose any liability on the city or any of its officers or employees for construction or cleanup of the erosion and sediment control measures listed herein. (Ord. 1144, 7

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