DEMING, NEW MEXICO: CITY CODE

Title 11

BUILDING REGULATIONS

Chapter 5

WIND EROSION AND DUST CONTROL

11-5-1: DEFINITIONS:

11-5-2: PURPOSE; APPLICABILITY:

11-5-3: GENERAL PROVISIONS:

11-5-4: DUST CONTROL AND SOIL EROSION PLAN:

11-5-5: REASONABLY AVAILABLE CONTROL MEASURES (RACMS):

11-5-6: GENERAL AND NONCONSTRUCTION STANDARDS:

11-5-7: CORRECTION OF VIOLATIONS:

11-5-8: CITY NOT LIABLE:

11-5-1: DEFINITIONS:

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

AMBIENT AIR: That portion 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 ambient 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 

mitigate 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, rule, 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 property, 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 site 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 capable 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, gravel, 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 aboveground. 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 are 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 measure 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 includes 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.

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 average 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, 7-10-2006) 

11-5-2: 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 construction 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, 

necessarily, 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 situation 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 this 
chapter. Compliance 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 chapter 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, and 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 emergency.

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 and 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, 7-10-

2006)

11-5-3: 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 generating 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 necessary to remedy damage caused by a violation 
proven 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 owner. 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, 7-10-2006)

11-5-4: DUST CONTROL AND SOIL EROSION PLAN:

In order to obtain permit approval 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 building 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 following 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 the 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) and 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, 7-10-2006)

11-5-5: REASONABLY 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. Stopping 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 or chemical soil suppressant/stabilizer for idle construction areas;
O. Restricting access to lot by subcontractors by providing parking areas. (Ord. 1144, 7-10-2006)

11-5-6: 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 taken 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 is 

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 generating 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 industrial 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 designee and shall be 

communicated in writing to the property/business owner. (Ord. 1144, 7-10-2006)

11-5-7: 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 fact 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 issue a 
stop 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 fails 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 costs 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 governed 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 

facilities 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 property 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, including, 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 1-4-1 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, 7-10-2006)

11-5-8: CITY NOT LIABLE:

A. Nothing contained in this chapter is intended to be construed to create 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 in 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 behalf 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 official, 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, 7-10-

2006)