New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 11 - ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD › Part 20 - FUGITIVE DUST CONTROL › Section 20.11.20.16 - HIGH WIND EVENT REQUIREMENTS; HIGH WIND EVENT AFFIRMATIVE DEFENSE

Current through Register Vol. 35, No. 13, July 16, 2024
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.