New Mexico Register / Volume XXXVI,
Issue 17 / September 9, 2025
TITLE 20 ENVIRONMENTAL PROTECTION
CHAPTER 11 ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD
PART 20 FUGITIVE DUST CONTROL
20.11.20.1 ISSUING AGENCY: Albuquerque - Bernalillo County Air Quality Control Board.
P.O. Box 1293, Albuquerque, New Mexico 87103. Telephone: (505) 768-2601.
[20.11.20.1 NMAC - Rp, 20.11.20.1
NMAC, 9/9/2025]
20.11.20.2 SCOPE:
A. 20.11.20
NMAC is applicable to all sources of fugitive dust in Bernalillo county, unless
otherwise exempt.
B. Exempt: 20.11.20
NMAC does not apply to sources within Bernalillo county that are:
(1) located on Indian lands over which the
Albuquerque - Bernalillo county air
quality control board lacks jurisdiction;
(2) hard rock mining pits and operations
contained within the mining pit and permitted pursuant to the state of New
Mexico Mining Act; for the purposes of 20.11.20 NMAC, sand and gravel mining
operations are not exempt;
(3) emergency maintenance operations that
are intended to address an imminent threat to property or persons; however,
reasonably available control measures must be employed once the emergency has
been addressed, if appropriate, and a report of all activities shall be filed
with the department no later than 10 days after the incident has been concluded
and the department shall determine if additional action, including a permit
application submittal, is required before additional non-emergency activities
occur at the site; and
(4) stationary source operations subject
to 20.11.41 NMAC, Authority to Construct,
or 20.11.42 NMAC, Operating Permits,
that produce fugitive dust as defined in 20.11.20 NMAC, but only if the source
of fugitive dust is addressed and controlled through permit conditions required
by a 20.11.41 NMAC or 20.11.42 NMAC permit; however
construction at a stationary source site, whether it involves new construction
or a site modification, is subject to 20.11.20 NMAC.
C. Conditionally Exempt:
The following five sources of
fugitive dust emissions in Bernalillo county shall be conditionally exempt from
the requirements of 20.11.20 NMAC, unless the department determines that the
fugitive dust emitted from a conditionally exempt source’s active operations or
inactive disturbed surface area may adversely and significantly affect human
health within Bernalillo county:
(1) areas zoned for agriculture and used
for growing a crop;
(2) bicycle trails, hiking paths and
pedestrian paths, horse trails or similar paths used exclusively for purposes
other than travel by motor vehicles;
(3) unpaved roadways on privately-owned
easements serving residential dwellings;
(4) lots smaller than three-quarters of an
acre used for any purpose; and
(5) unpaved roadways within properties
used for ranching, or properties owned or controlled by the United States
department of energy or department of defense, or United States department of
agriculture forest service lands or United States department of interior park
service lands if the public does not have motor vehicle access to the roadways.
[20.11.20.2 NMAC - Rp, 20.11.20.2
NMAC, 9/9/2025]
20.11.20.3 STATUTORY AUTHORITY:
20.11.20 NMAC is adopted pursuant to
the authority provided in the New Mexico Air Quality Control Act, Sections
74-2-4 & 74-2-5 NMSA 1978; the Joint Air Quality Control Board Ordinance;
Bernalillo county Ordinance No. 94-5, Sections 4 and 5; and the Joint Air
Quality Control Board Ordinance, Revised Ordinances of Albuquerque 1994
Sections 9-5-1-4 and 9-5-1-5.
[20.11.20.3 NMAC - Rp, 20.11.20.3
NMAC, 9/9/2025]
20.11.20.4 DURATION: Permanent.
[20.11.20.4 NMAC - Rp, 20.11.20.4
NMAC, 9/9/2025]
20.11.20.5 EFFECTIVE DATE: September 9, 2025, unless a later date is cited at the end of a section.
[20.11.20.5 NMAC - Rp, 20.11.20.5 NMAC, 9/9/2025]
20.11.20.6 OBJECTIVE: To ensure that every person shall use reasonably available
control measures or other effective measures on an ongoing basis to prevent or
abate fugitive dust, if the fugitive dust may with reasonable probability
injure human health or animal or plant life or as may unreasonably interfere
with the public welfare, visibility or the reasonable use of property, as
required by 20.11.20 NMAC.
[20.11.20.6 NMAC - Rp, 20.11.20.6
NMAC, 9/9/2025]
20.11.20.7 DEFINITIONS: In addition to the definitions in 20.11.20.7 NMAC, the
definitions in 20.11.1 NMAC apply unless there is a conflict between
definitions, in which case the definition in 20.11.20.7 NMAC shall govern.
A. “Accredited” or “accreditation” when referring to a person
or laboratory means that such person or laboratory is accredited in accordance
with Section 206 of Title II of the Toxic Substances Control Act, 15 U.S.C.
2601, et seq.
B. “Active
operations” means any anthropogenic activity that is capable of
generating, or generates fugitive dust, including but not limited to: bulk
material storage, handling or processing; earth moving; soil or surface
disturbance (e.g. discing, trenching, blading, scraping, clearing, grubbing,
topsoil removal); construction, renovation, or demolition activities; movement
of motorized vehicles on any paved or unpaved roadway or surface, right-of-way,
lot or parking area; or the tracking out or transport of bulk material onto any
paved or unpaved roadway.
C. “Anthropogenic” means human-caused changes
in the natural or built condition of the environment.
D. “Bulk material” means sand, gravel, soil,
aggregate or any other inorganic or organic solid material capable of creating
fugitive dust.
E. “Business day”
means Monday through Friday, except city of Albuquerque holidays.
F. “Construction activity” means any activity
preparatory to or related to building, altering, rehabilitating, demolishing or
improving property that results in a disturbed surface area, including but not
limited to grading, excavation, loading, crushing, pavement milling, cutting,
clearing, grubbing, topsoil removal, blading, shaping, dry sweeping, blasting
and ground breaking.
G. “Crop” means an agricultural plant harvested for
consumption, utilization or sale.
H. “Disturbed surface area” or “surface disturbance” means the natural or
manmade area of the earth’s surface that, as a result of
anthropogenic activity, may become a source of transported material, track-out,
or visible fugitive dust.
I. “Division” means the city of
Albuquerque air quality division or its successor agency.
J. “Dust suppressant” means hygroscopic
materials, or non-toxic chemical stabilizers used to reduce or control fugitive
dust emissions during suspended operations and as a long term reasonably
available control measure.
K. “Earth moving activity” means grading, cutting,
filling, soil disturbance (e.g. discing, trenching, blading, scraping,
clearing, topsoil removal, grubbing), soil mulching, loading or unloading of
dirt or other bulk materials, including adding to or removing from open storage
piles or stockpiles of bulk materials.
L. “Fugitive dust” or “dust” means organic or inorganic
particulate matter. Water vapor, steam,
or particulate matter emissions emanating from a duct or stack of process
equipment are not fugitive dust.
M. “Fugitive dust control construction permit” or “permit” means a fugitive dust
control permit approved by the department and issued pursuant to 20.11.20 NMAC
that contains an approved fugitive dust control plan and authorizes active
operations to begin when the permit is signed by a division manager, supervisor,
scientist, field operations officer or health specialist.
N. “Fugitive dust control plan” or “plan” means the part or portion
of the fugitive dust control construction permit or programmatic permit
application that details the reasonably available control measures and other
effective measures the permit applicant commits to use to reduce the quantity of
visible fugitive dust, transported material, or track-out leaving the property
or area under the control of the permittee and shall include contingency
fugitive dust control measures, which
shall be a requirement of every fugitive dust control permit.
O. “Greenwaste”
means organic matter including, grass
clippings, leaves, weeds, small shrub or tree limb cuttings, brush,
stumps, and soils.
P. “High wind event” means a condition announced
by the department consisting of wind speeds of approximately 30 miles per hour
or greater that, when accompanied by dry soil conditions, that is likely to
result in widespread reduced visibility due to blowing fugitive dust and that
may result in elevated monitored particulate levels that may cause or
contribute to an exceedance or violation of the national ambient air quality
standards.
Q. “Inactive disturbed surface area” means any disturbed surface
area on which active operations have been suspended.
R. “Large area disturbance” means a project or
development, totaling more than 25 acres upon which active operations have been
conducted and includes areas used for storage of bulk material, building or
construction materials, machinery or vehicles.
S. “Open storage pile” means the accumulation of
bulk material that is not fully enclosed, covered or chemically stabilized.
T. “Owner or operator" means a person who owns,
leases, operates, controls, or supervises a source that directly or indirectly
produces or is capable of producing fugitive dust.
U. “Parking lot” or “parking area” means a location where
motor vehicles routinely park whether or not the area
is zoned for parking.
V. “Paved” or “paving” or “paved
roadway” means asphalt, recycled asphalt, concrete or asphaltic
concrete, routinely-maintained asphalt millings, or combinations thereof, that
cover a surface traveled or used by motor vehicles.
W. “Permittee” means a person and all
legal heirs, successors, and assigns who has applied for and obtained a
fugitive dust control construction or programmatic permit issued by the
department pursuant to 20.11.20 NMAC.
X. “Person” means an individual, firm,
partnership, corporation, association, organization, company, joint stock
association, business trust, owner, or body politic, including a municipality,
local, state or federal government agency or political subdivision, and includes
an employee, officer, operator, contractor, supplier, installer, user,
leaseholder, trustee, receiver, assignee or other person acting in a similar
representative capacity with the authority to control transported material or
emissions of particulate matter generated at a disturbed surface area or
generated by activities associated with a disturbed surface area or inactive
disturbed surface area.
Y. “Privately-owned” means real property that is
not wholly or partially owned, leased or otherwise controlled by a federal,
state or local government or governmental agency or political subdivision.
Z. “Programmatic permit” means a fugitive dust
control permit valid for up to five years issued to a permittee that performs
routine maintenance or routine ongoing active operations on real property, but does not include full depth reconstruction of
a roadway or substantial removal and replacement of a manmade facility. A programmatic permit shall include an
approved fugitive dust control plan and shall be effective when signed by a
division manager, supervisor, scientist, field operations officer or health
specialist.
AA. “Property line” means the exterior boundary
of real property, as indicated by plats, plot maps or other indication of
ownership limits.
BB. “Publicly-maintained” means under the
jurisdiction of, or maintained by a federal, state, or local government or
governmental agency or political subdivision.
CC. “Publicly-owned” means real property that is
wholly or partially owned, leased or otherwise controlled by a federal, state
or local government or governmental agency or political subdivision.
Publicly-owned real property includes easements and rights-of-ways, streets, roadways,
sidewalks, alleys and other public ways, parks, irrigation and drainage
facilities, and any other publicly controlled real property that can be the
source of fugitive dust.
DD. “Reasonably available control measure” or “control measure” means a device, system,
process modification, apparatus, technique, work practice, or combination
thereof, that mitigates fugitive dust and includes the measures in 20.11.20.23
NMAC and any other regulatory control program that results in equivalent protection
of a disturbed surface or inactive disturbed surface area, whether or not the
purpose of the control measure is to mitigate dust or to meet another
requirement of 20.11.20 NMAC or any other statute or regulation.
EE. “Responsible person” means the person designated
in a fugitive dust control permit application or permit amendment who agrees to
be and shall be responsible for complying with 20.11.20 NMAC, and with the
permit and plan to the extent specified in the permit.
FF. “Short cut” means a non-dedicated
roadway or route used by motor vehicle drivers to save time by avoiding use of
a dedicated and authorized roadway.
GG. “Silt” means bulk material that passes through a
200-mesh screen using the ASTM-D 2487-93, “classification
of soils for engineering purposes (united soil classification system)”
method, or most current ASTM (American society for testing and materials)
method. Material that will pass through
a 200-mesh screen is 74 microns or less in size.
HH. “Source” or “source of fugitive emissions” means the origin of
fugitive dust emissions.
II. “Stabilized” or “stabilization” means ongoing practices that are sufficient to prevent elevated
monitored particulate levels that may cause or contribute to an exceedance or
violation of the national ambient air quality standards by meeting the
objective established in 20.11.20.6 NMAC and the requirements of the general
provisions established in 20.11.20.12 NMAC.
JJ. “Stockpile” means the depositing of bulk
material by mechanical means for the purpose of creating a pile formation on
top of an existing natural or man-made surface.
KK. “Stop work order” means an order issued by
the department pursuant to the provisions of 20.11.20 NMAC that requires a
person to cease active operations.
LL. “Track-out” or “tracking” means bulk material
deposited by a motor vehicle or vehicles upon an unpaved or paved publicly or
privately owned roadway if the bulk material can become airborne due to
mechanical or wind action.
MM. “Transfer of permit”
means an agreement approved in writing by the department that meets the
conditions outlined in Paragraphs (1) through (6) of Subsection D of
20.11.20.14 NMAC.
NN. “Transported material” means particulate matter transported by wind, water or other
action that, once deposited, can become airborne due to mechanical or wind
action.
OO. “Unpaved roadway” means an unpaved route
traveled by a motorized vehicle.
PP. “Visible fugitive dust” means airborne particulate
matter from a source, resulting in particulate matter emissions that can be
detected by the human eye or a detection method approved by the
department. Visible fugitive dust can be
an indicator of PM10.
QQ. “Visible fugitive dust detection
method” means the method described in 20.11.20.26 NMAC, which is one
method used to determine compliance with 20.11.20 NMAC.
[20.11.20.7 NMAC - Rp, 20.11.20.7
NMAC, 9/9/2025]
20.11.20.8 VARIANCES: A person may request a variance from 20.11.20 NMAC in
accordance with the procedures established in 20.11.7 NMAC.
[20.11.20.8 NMAC - Rp, 20.11.20.8
NMAC, 9/9/2025]
20.11.20.9 SAVINGS CLAUSE: An amendment to Fugitive
Dust Control, 20.11.20 NMAC, which is filed with the state records center
and archives shall not affect actions pending for violation of a city or county
ordinance, or prior versions of 20 NMAC 11.20 and 20.11.20 NMAC, Airborne Particulate Matter, 20.11.20
NMAC Fugitive Dust Control, or a
permit. Prosecution for a violation of a
prior statute, ordinance, part or permit shall be governed and prosecuted under the statute,
ordinance, part or permit wording in effect at the time the violation was
committed.
[20.11.20.9 NMAC - Rp, 20.11.20.9
NMAC, 9/9/2025]
20.11.20.10 SEVERABILITY: If any section, subsection, sentence, phrase, clause or
wording of 20.11.20 NMAC or the federal standards incorporated herein is for
any reason held to be unconstitutional or otherwise invalid by any court or the
United States environmental protection agency, the decision shall not affect
the validity of remaining portions of 20.11.20 NMAC.
[20.11.20.10 NMAC - Rp, 20.11.20.10
NMAC, 9/9/2025]
20.11.20.11 DOCUMENTS: Documents incorporated and cited in 20.11.20 NMAC may be
viewed at the Albuquerque environmental health department, 400 Marquette NW,
Albuquerque, NM.
[20.10.20.11 NMAC - Rp, 20.11.20.11
NMAC, 9/9/2025]
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.
[20.11.20.12 NMAC - Rp, 20.11.20.12
NMAC, 9/9/2025]
20.11.20.13 FUGITIVE DUST CONTROL PROGRAMMATIC PERMITS:
A. A fugitive
dust control programmatic permit is required for single or multiple facility
locations to address real property totaling
three-quarters of an acre or more that is subject to
routine maintenance, routine surface disturbance activities, or routine ongoing
active operations. A programmatic permit
application and fugitive dust control plan shall be submitted on forms provided
by the department. Programmatic permits
are valid for up to five years. The
permittee shall pay the annual programmatic permit fee required by 20.11.2
NMAC, Fees, for each year covered by
the programmatic permit. Receipt of the
annual fee by the department shall result in an automatic annual renewal of the
programmatic permit. A new programmatic
permit application and fugitive dust control plan shall be submitted every five
years or sooner if the surface disturbance activities or fugitive dust
abatement strategies are modified. A
filing and review fee is not required for a programmatic permit.
B. A
person responsible for sloped (i.e. slopes having a steepness of three-to-one
or steeper) and bottom portions of interior and riverside drains and canals
used for irrigation purposes, and arroyos and public flood control facilities
subject to routine maintenance or repair, sedimentation and water erosion shall
obtain either a variance as provided by 20.11.7 NMAC or a programmatic permit
as provided by Subsection A of 20.11.20.13 NMAC if the person does not elect to
submit an application and obtain a fugitive dust control construction permit
pursuant to 20.11.20.14 NMAC.
C. No
signs or photographic documentation shall be required for the permits or
activities subject to 20.11.20.13 NMAC.
Appropriate permit application documentation shall be determined by the
department.
[20.11.20.13 NMAC - Rp, 20.11.20.13
NMAC, 9/9/2025]
20.11.20.14 FUGITIVE DUST CONTROL CONSTRUCTION PERMITS:
A. A
person who does not elect to obtain or who does not qualify for a fugitive dust
control programmatic permit pursuant to 20.11.20.13 NMAC and who plans to
conduct active operations that will disturb three-quarters of an acre or more
shall comply with either Subsection A or B of 20.11.20.18 NMAC and obtain a
fugitive dust control construction permit.
No active operations shall commence until a department manager,
supervisor, scientist, field operations officer or health specialist signs the
fugitive dust control construction permit (permit) and a copy of the signed
permit is available at the site of active operations. A permit shall consist of a complete permit application a fugitive dust control plan, any appended
documents, any conditions attached to the permit by the department, and a
signature and effective date affixed by a department manager, supervisor,
scientist, field operations officer or health specialist.
B. The
permittee shall comply with the terms of the permit unless the department
approves a transfer of the permit or issues a new permit for the active or
inactive disturbed surface area of operation to a new permittee. If three-quarters of an acre or more of the
real property that is subject to the permit is transferred or sold the new
owner is responsible for complying with either 20.11.20.13 NMAC or 20.11.20.14
NMAC unless exempt. Upon receipt of an
amended permit signed by a department manager, supervisor, scientist, field
operations officer or health specialist, the permittee who transferred or sold
the real property no longer will be responsible for control of fugitive dust
originating from the real property that has been transferred or sold. Permit amendment fees shall be paid as
required by 20.11.20.14 NMAC.
C. If
a person other than the permittee will be responsible for complying with the
permit and 20.11.20 NMAC, then the permittee shall designate the responsible
person or persons in the permit application who shall be responsible for active
operations and inactive disturbed surface areas to the extent specified in the
application. Before a responsible person
shall be liable for a violation of the permit or 20.11.20 NMAC, the responsible
person shall agree in writing to accept responsibility for compliance with the
permit conditions. The responsible
person shall be the first person the department attempts to contact regarding a
violation of the permit or 20.11.20 NMAC.
In addition, the department may approve, in writing, a permit amendment
that adds or changes the responsible person who has agreed in writing to be
responsible for complying with the permit and plan, to the extent specified in
the permit. If the responsible person
and permittee fail to comply with the provisions of 20.11.20 NMAC, the owner or
operator, if different from the responsible person or permittee, shall be
responsible for compliance with the permit.
D. An approved
permit shall be valid for one year from the date of issuance by the department
or until the project expiration date provided in the permit application,
whichever is longer, but no more than five years from the date of issuance. If the project plan, expiration date, total
disturbed surface area, completion date or the proposed control measures change
in any manner, an amended or new permit is required. At least 10 business days before the
expiration date, a fugitive dust control permit shall be renewed by the
then-current permittee, or the permit shall expire as of the expiration
date. Permit amendment or renewal fees
shall be paid as required by Subsection H of 20.11.20.14 NMAC. Permits may be transferred to legal heirs,
successors, and assigns, who shall become the new permittee. Permit transfers may qualify as an
administrative amendment if:
(1) the department has received, on a form
provided by the department, a written transfer agreement signed by the current
and new permittee, and, if different than the new permittee, by the owner of
the real property subject to the permit;
(2) a specific date of the transfer of the
permit and plan responsibility, coverage, and liability is established in the
transfer agreement;
(3) the department has determined that no
change to the permit and plan other than the administrative change is
necessary;
(4) the new permittee and owner have
submitted the application information required by 20.11.20.15 NMAC if changes
have been made to the permit and plan as deemed necessary by the department;
(5) no grounds exist for permit
termination, as otherwise provided by 20.11.20 NMAC; and
(6) the transfer agreement has been
approved in writing by the department.
E. After
a permit is issued and before the start of active operations, the permittee
shall install and maintain a project sign provided by the department or a
project sign that meets the requirement of 20.11.20.14 NMAC. The department will establish uniform design
guidelines for the sign to ensure that the sign is reasonably legible to the
public. If the required information is
provided in an existing project sign that has been established for another
purpose, an additional sign shall not be required to comply with 20.11.20
NMAC. At a minimum, the sign shall
contain the following:
(1) project name;
(2) permittee name;
(3) phone number of designated responsible
person or owner;
(4) subcontractor name (optional);
(5) subcontractor phone number (optional);
(6) air quality division phone number;
(7) fugitive dust control permit number;
and
(8) total acres of area to be disturbed.
F. The permittee or responsible
person shall make the permit available to all employees, agents,
sub-contractors, and other persons performing work in the
area of active operations or inactive disturbed surface areas to assist
in maintaining compliance with 20.11.20 NMAC.
The permittee or responsible person shall explain the requirements of
the permit to appropriate employees, contractors and agents working at the
site. Upon request, the permittee shall
provide information regarding how to obtain a copy of the permit from the
department.
G. It
is the responsibility of the permittee or responsible person to ensure that the
permit or amended permit contains current contact information and that a copy
is maintained at the work site and is provided to the department upon request. Failure to maintain and provide up-to-date
contact information shall be a violation of 20.11.20 NMAC.
H. The
department may amend or renew the permit if requested to do so by the
permittee. No fee shall be charged for
amending or renewing a permit, unless there will be an increase in the number
of acres subject to surface disturbance.
Both the department and the permittee must sign an amended permit before
it will be effective. The department is
not required to sign a renewed permit unless the renewed permit increases the
number of acres subject to surface disturbance.
An amended or renewed permit that involves an increase in the number of
acres subject to surface disturbance shall require payment of fees as required
by 20.11.2 NMAC.
[20.11.20.14 NMAC - Rp, 20.11.20.14
NMAC, 9/9/2025]
20.11.20.15 FUGITIVE DUST CONTROL CONSTRUCTION PERMITS; MINIMUM PERMIT
APPLICATION REQUIREMENTS: Proposed
fugitive dust control construction permit applications shall be submitted on
forms provided by the department.
Fugitive dust control plans may be submitted in any format including a
copy of a program that complies with any other statute or regulation so long as
the plan provides reasonably available control measures whose purpose is to
mitigate fugitive dust and the plan meets the objectives of 20.11.20 NMAC. If extraneous information is supplied that
does not apply to mitigation of fugitive dust, then the dust control measures
shall be clearly identified in the plan or the permit
application shall be deemed incomplete and shall be rejected. An incomplete permit application shall be
processed as described in Subsection C of 20.11.20.18 NMAC. Proposed fugitive
dust control permit applications shall include the following:
A. name,
address, telephone number and fax number of permittee;
B. owner’s
name, address, telephone number and fax number if different from permittee;
C. if different
than the permittee, the name, address, telephone number and fax number of the
responsible person who is agreeing to, and shall be responsible for activities
on the permitted site; the department shall first attempt to contact the
responsible person regarding a violation of the permit;
D. anticipated
project start date which shall be no fewer than 10 business days from the
department’s receipt of the permit application for areas containing greater
than three quarters of an acre but no greater than 25 acres, and no fewer than
20 business days from the department’s receipt of the permit application for
areas containing more than 25 acres;
E. anticipated
project completion date;
F. project
description;
G. project
location including, if available, street address, major cross streets or nearby
intersection;
H. total area of disturbance in
acres or square feet;
I. a check or money order for the fees due, calculated using the tables provided on the
permit application form, payable to the ‘city of Albuquerque permits program’
(fund 242);
J. a
description of the sequencing of the active operations, if phasing is used to
reduce the total disturbed area at any time;
K. estimated
total volume of bulk material being handled in cubic yards, including any bulk
material being imported, exported or relocated;
L. location
from which bulk material is being imported to the site and a statement
regarding whether the site where the imported material originates will have a
separate fugitive dust control permit, or provide written information to the
department as soon as known;
M. location
to which bulk material from the site is being exported and a statement
regarding whether the site to which the material is to be exported will have a
separate fugitive dust control permit, or provide written information to the
department as soon as known;
N. whether
an approved drainage plan exists pursuant to city of Albuquerque or Bernalillo
county ordinances and, upon request by the department, provide a copy of the
drainage plan;
O. site map
(e.g. zone atlas page, aerial photograph);
P. type of work being performed and appropriate reasonably
available control measures, as described in 20.11.20.23 NMAC, or other
effective control measures proposed to be used in the fugitive dust control
plan;
Q. a
statement that effective contingency fugitive dust control measures shall be
taken by the permittee if the control measures required by Subsection P of
20.11.20.15 NMAC are not effective in maintaining compliance with 20.11.20
NMAC;
R. a
commitment to comply with provisions of Subsection B of 20.11.20.16 NMAC if the
permittee chooses to preserve the ability to qualify for a high wind
affirmative defense;
S. high
wind contingency measures that will be implemented when high winds occur;
T. a
description of the actions the permittee will take to mitigate damage caused by
fugitive dust if generated by active operations or an inactive disturbed
surface area on the permitted site;
U. other
proposed conditions;
V. signature
of the permittee, and, if a different person, signature of the owner, operator
and/or any responsible person certifying that the information in the fugitive
dust control permit application is true, accurate and complete, and certifying
that all actions necessary to comply with 20.11.20 NMAC will be taken,
including suspending active operations if necessary to comply with the
provisions of 20.11.20 NMAC; and
W. a
statement regarding whether bulk material will be stockpiled at the project
site, the dimension of each stockpile, and the reasonably available control
measures or other effective control measures that will be used at the stockpile
area to comply with 20.11.20 NMAC.
[20.11.20.15 NMAC - Rp, 20.11.20.15
NMAC, 9/9/2025]
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.
[20.11.20.16 NMAC - Rp, 20.11.20.16
NMAC, 9/9/2025]
20.11.20.17 FILING, REVIEW AND INSPECTION FEES:
The fees required by 20.11.20 NMAC are located in 20.11.2 NMAC, Fees. The filing and review fee portion of the
total permit application fee due when a fugitive dust control construction
application is filed is non-refundable.
[20.11.20.17 NMAC - Rp, 20.11.20.17
NMAC, 9/9/2025]
20.11.20.18 FUGITIVE DUST CONTROL CONSTRUCTION PERMIT APPLICATION
PROCESSING:
A. A
person who is required to submit a fugitive dust control construction permit
(permit) application and plan for active operations that will disturb at least
three-quarters of an acre, but no more than 25 acres, shall submit the permit
application and plan with the applicable fees to the department no fewer than
10 business days prior to the start of active operations. Within 10 business days of the department
receiving the permit application, plan and fees, the department will approve
the permit, approve the permit with conditions or deny the permit.
B. A
person who is required to submit a permit application and plan for active
operations that will disturb more than 25 acres shall submit the permit
application and plan with the applicable fees to the department no fewer than
20 business days prior to the start of active operations. Within 20 business days of the department
receiving the permit application, plan and fees, the department will approve
the permit, approve the permit with conditions or deny the permit.
C. The
fugitive dust control plan may be in any form including a copy of a program
that complies with any other statute or regulation so long as the plan provides
reasonably available control measures whose purpose is to mitigate fugitive
dust and the plan meets the objectives of 20.11.20 NMAC. If the plan does not specifically enumerate
the control measures proposed to mitigate fugitive dust, the permit application
shall be deemed incomplete and shall be rejected. If an incomplete application is rejected, a
new or amended application may be filed and the time limits in Subsections A or
B of 20.11.20.18 NMAC shall apply as if the initial application had not been
filed.
D. If all requirements of 20.11.20
NMAC have been met by the applicant, the department shall issue a permit to the
permittee, which shall authorize commencement of active operations. If the department has not approved, denied,
or notified the applicant regarding the permit application within 30 business
days of the department’s receipt of the permit application, plan and fees, then
the permit shall be automatically approved and
operations may commence if the permittee uses the reasonably available control
measures and fugitive dust control plan as submitted in the application. However, if the measures and plan are not
effective, the department may initiate an enforcement action for violation of
20.11.20 NMAC.
[20.11.20.18 NMAC - Rp, 20.11.20.18
NMAC, 9/9/2025]
20.11.20.19 PUBLIC AND PRIVATE UNPAVED ROADWAYS, SHORT-CUTS AND UNPAVED
PARKING AREAS:
A. No
unpaved roadway greater than one-quarter mile in length and no unpaved parking
areas may be constructed or allowed to be constructed or reconstructed on any
publicly-owned land or privately-owned real property, unless the owner has
applied for and received a permit pursuant to 20.11.20.13 NMAC or 20.11.20.14
NMAC. Owners in possession of a valid
fugitive dust control permit that wish to construct additional unpaved roadways
shall apply for an amendment to their permit which shall include payment of any
fees required by 20.11.2 NMAC. In
addition, no unpaved short-cut of any length on private or public property may
be constructed or be allowed to remain usable when it is evident the short cut
is being used by motor vehicle drivers to save time by avoiding use of a
dedicated and authorized roadway. A
variance from Subsection A of 20.11.20.19 NMAC may be granted by the board in a
manner consistent with the variance procedures provided in 20.11.7 NMAC.
B. Owners
or operators shall use reasonably available control measures on all unpaved
roadways and unpaved parking areas and shall comply with the general provisions
established in 20.11.20.12 NMAC.
C. Public
unpaved roadway; complaints. If the
department receives a fugitive dust complaint regarding an unpaved public
roadway, the department will forward the complaint by hand delivery,
inter-office mail delivery or certified mail, return receipt requested, to the
governmental agency responsible for maintenance of the roadway. Within 45 calendar days from the date the
complaint was received by the responsible agency, the responsible agency shall
make a reasonable effort to address the complaint, and the governmental agency
shall provide the department with a written report of the actions taken to
resolve the complaint. Failure of the
responsible agency to submit a timely report shall be a violation of 20.11.20
NMAC.
[20.11.20.19 NMAC - Rp, 20.11.20.19
NMAC, 9/9/2025]
20.11.20.20 ABRASIVE PRESSURE BLASTING OPERATIONS:
A person who performs abrasive
pressure blasting operations shall employ reasonably
available control measures or other effective control measures at all times
to comply with 20.11.20.12 NMAC and shall substantially reduce fugitive dust
emissions that are leaving the property where the abrasive pressure blasting
operations are taking place. A person
who is conducting abrasive pressure blasting operations is not required to
obtain a fugitive dust control permit from the department. However, stationary source permitting
regulations, such as 20.11.41 NMAC and 20.11.42 NMAC, may apply to pressure
blasting operations.
[20.11.20.20 NMAC - Rp, 20.11.20.20
NMAC, 9/9/2025]
20.11.20.21 CONTROL OF GREENWASTE MATERIAL:
To prevent greenwaste
from becoming ground up by the abrasive action of tires, which may then be
entrained into the atmosphere as particulate matter, all persons causing,
directing or authorizing greenwaste to be deposited
on publicly-owned real property shall promptly remove or cause the removal of
the greenwaste.
[20.11.20.21 NMAC - Rp, 20.11.20.21
NMAC, 9/9/2025]
20.11.20.22 DEMOLITION AND RENOVATION ACTIVITIES; FUGITIVE DUST CONTROL CONSTRUCTION PERMIT AND
ASBESTOS NOTIFICATION REQUIREMENTS: No person shall demolish any building containing over 75,000
cubic feet of space without first delivering to the department a fugitive dust
control construction permit application and fugitive dust control plan with the
fee required by 20.11.2 NMAC. No active
operations shall commence until a department manager, supervisor, scientist,
field operations officer or health specialist signs a fugitive dust control
construction permit and a copy of the signed permit is available at the site of
active operations. Failure to obtain a
fugitive dust control construction permit prior to commencement of demolition
activities as described in 20.11.20.22 NMAC shall be a violation of 20.11.20
NMAC. All demolition and renovation
activities shall employ reasonably available control measures
at all times, and, when removing asbestos containing materials (ACM),
shall also comply with the federal standards incorporated in 20.11.64 NMAC, Emission Standards for Hazardous Air
Pollutants for Stationary Sources. Any inspection for asbestos
containing material must be conducted by an accredited inspector. A person who demolishes or renovates
any commercial building, residential building containing five or more
dwellings, or a residential structure that will be demolished in order to build a nonresidential structure or building
shall file an asbestos notification with the department no fewer than 10
calendar days before the start of such activity. Written asbestos notification certifying to
the presence of ACM is required even if regulated ACM is not or may not be
present in such buildings or structures.
Failure to provide proper asbestos notification shall be a violation of
the requirements of 20.11.64 NMAC.
Knowingly violating provisions of 20.11.64 NMAC is a fourth-degree
felony pursuant to the New Mexico Air Quality Control Act, 74-2-14.C.3 NMSA
1978.
[20.11.20.22 NMAC - Rp, 20.11.20.22
NMAC, 9/9/2025]
20.11.20.23 REASONABLY
AVAILABLE CONTROL MEASURES FOR FUGITIVE DUST: The permittee may include in the permit application one or
more of the reasonably available control measures included in 20.11.20.23 NMAC or one or more
alternative fugitive dust control measures, including measures taken to comply
with any other statute or regulation if the measures will effectively control
fugitive dust during active operations or on inactive disturbed surface areas. At minimum, all projects requiring a fugitive
dust control construction permit shall utilize paved or gravel entry/exit aprons,
steel grates or other devices capable of removing mud and bulk material from
vehicle traffic tires, and erect a 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 30 or more inches above the existing
natural or man-made surface. To maintain
effectiveness of the entry/exit apron, steel grate or other similar device
(device), accumulated materials shall be removed promptly. To maintain
effectiveness of the fence, fugitive dust that accumulates on either side of
the fencing shall be removed promptly.
A. Unpaved roadways:
(1) paving using recycled asphalt,
routinely-maintained asphalt millings, asphaltic concrete, concrete, or
petroleum products legal for such use;
(2) using dust suppressants applied in
amounts, frequency and rates recommended by the manufacturer and maintained as
recommended by the manufacturer;
(3) using wet suppression; or
(4) using traffic controls, including
decreased speed limits with appropriate enforcement; other traffic calming
methods, vehicle access restrictions and controls; road closures or barricades;
and off-road vehicle access controls and closures.
B. Paved roadways:
(1) cleaning up spillage and track out as
necessary to prevent pulverized particulates from being entrained into the
atmosphere;
(2) using on-site wheel washes; or
(3) performing regularly scheduled vacuum
street cleaning or wet sweeping with a sweeper certified by the manufacturer to
be efficient at removing particulate matter having an aerodynamic diameter of
less than 10 microns (i.e. PM10).
C. Trucks hauling bulk materials on
public and private roadways:
(1) using properly secured tarps or cargo
covering that covers the entire surface area of the load;
(2) preventing leakage from the truck bed,
sideboards, tailgate, or bottom dump gate;
(3) using wet suppression to increase
moisture content of the bulk materials being hauled;
(4) using dust suppressants applied in
amounts, frequency and rates recommended by the manufacturer; or
(5) maintaining a minimum of six inches of
freeboard from the rim of the truck bed; freeboard means the vertical distance
from the highest portion of the load abutting the bed and the lowest part of
the top rim of the truck bed.
D. Active operations in construction
areas and other surface disturbances:
(1) Short term control measures may
include:
(a) wet suppression;
(b) dust suppressants applied in amounts,
frequency and rates recommended by the manufacturer and maintained as
recommended by the manufacturer;
(c) watering the site at the end of each
workday sufficiently to stabilize the work area;
(d) applying dust suppressants in amounts,
frequency and rates recommended by the manufacturer on the worksite at the end
of each workweek if no active operations are going to take place over the
weekend or if active operations stop for more than two consecutive days;
(e) starting construction at the location
that is upwind from the prevailing wind direction and stabilizing disturbed
areas before disturbing additional areas;
(f) stopping active operations during
high wind; or
(g) clean up and removal of track-out
material.
(2) Long term control measures may
include:
(a) site stabilization using dust
suppressants applied in amounts, frequency and rates recommended by the
manufacturer and maintained as recommended by the manufacturer;
(b) reseeding using native grasses as
specified in 20.11.20.24 NMAC;
(c) xeriscaping;
(d) installing parallel rows of fabric
fencing or other windbreaks set perpendicular to the prevailing wind direction
either onsite or on a nearby property with the permission of the nearby
property owner;
(e) surfacing with gravel or other mulch
material with a size and density sufficient to prevent surface material from
becoming airborne;
(f) mulching and crimping of straw or hay
as specified in Subsection D of 20.11.20.24 NMAC;
(g) installing permanent perimeter and
interior walls;
(h) using conventional landscaping
techniques; or
(i) clean
up and removal of track-out material.
E. Bulk material handling:
(1) using spray bars;
(2) applying wetting agents (surfactants)
to bulk material;
(3) using wet suppression through manual
or mechanical application;
(4) adding dust suppressants to bulk
materials in amounts, frequency and rates recommended by the manufacturer and
maintained as recommended by the manufacturer;
(5) stopping bulk material handling,
processing, loading or unloading during high wind conditions;
(6) reducing process speeds; or
(7) reducing drop heights.
F. Industrial sites:
(1) paving roadways and parking area with
recycled asphalt, asphaltic concrete, concrete, or petroleum products legal for
use;
(2) performing regularly scheduled vacuum
street cleaning or wet sweeping;
(3) regularly using wet suppression on
unpaved areas;
(4) using dust suppressants applied in
amounts, frequency and rates recommended by the manufacturer, and maintained as
recommended by the manufacturer;
(5) installing wind breaks;
(6) installing enclosures;
(7) installing on-site anemometers to
measure wind speed; the anemometer should trigger a suitable warning mechanism
such as a strobe light or an audible alarm (that will not violate any
applicable noise ordinance) to notify on-site personnel of high wind conditions;
(8) increasing wet suppression
applications before and during high wind conditions; or
(9) stopping active operations during high
wind conditions.
G. Demolition and renovation activities
when asbestos-containing materials are not present:
(1) using
constant wet suppression on the debris piles during demolition;
(2) using water
or dust suppressants on the debris pile, applied in amounts, frequency and
rates recommended by the manufacturer;
(3) using
enclosures;
(4) using
curtains or shrouds;
(5) using
negative pressure dust collectors; or
(6) stopping
demolition during high wind conditions.
H. Milling, grinding or cutting of paved
or concrete surfaces:
(1) constantly
using wet suppression;
(2) continuous
wet sweeping during milling, grinding, or cutting operations;
(3) using dust
suppressants applied in amounts, frequency and rates recommended by the
manufacturer, and maintained as recommended by the manufacturer;
(4) using
enclosures; or
(5) using
curtains or shrouds.
I. Pressure blasting operations:
(1) using
non-friable abrasive material;
(2) using
curtains, enclosures or shrouds;
(3) using
negative pressure dust collectors;
(4) using
constant wet suppression;
(5) maintaining
ongoing clean up of abrasive material; or
(6) stopping
active operations during high wind conditions.
J. Spray painting and other coatings:
(1) using
enclosures that comply with applicable fire codes; or
(2) using
curtains, enclosures or shrouds.
K. High wind contingency measures:
(1) installing
and using on-site anemometers to measure wind speed; the anemometer should
trigger a suitable warning mechanism such as a strobe light or an audible alarm
that will not violate any applicable noise ordinance to notify on-site
personnel of high wind conditions;
(2) using constant wet suppression;
(3) using dust suppressants applied in
amounts, frequency and rates recommended by the manufacturer;
(4) using wetting agents or surfactants on
disturbed areas, bulk materials or stockpiles;
(5) slowing down process; or
(6) shutting down active operations.
L. Stockpile Formation:
(1) Active stockpiles:
(a) applying wet
suppression on a regular basis;
(b) utilizing
wind breaks (fabric fencing or other materials);
(c) reducing
vehicle speeds or using other traffic calming measures (e.g. sculpted piles);
or
(d) restricting
access to stockpile areas during non-work hours.
(2) Inactive stockpiles:
(a) maintaining a
stable outer crust over stockpile area;
(b) using dust
suppressants applied in amounts, frequency and rates recommended by the
manufacturer, and maintained as recommended by manufacturer;
(c) restricting
access to stockpile areas; or
(d) utilizing
wind breaks (fabric fencing or other materials).
[20.11.20.23 NMAC - Rp, 20.11.20.23
NMAC, 9/9/2025]
20.11.20.24 NATIVE GRASS SEEDING AND MULCH SPECIFICATIONS:
A. If
the fugitive dust control permit includes provisions to revegetate a disturbed
area, the permittee may use the specifications described in 20.11.20.24
NMAC. When properly applied and
maintained, these specifications have provided reasonably successful results in
the past in Bernalillo county. They are
included here as a reference for permittees and others who choose to use native
revegetation as a long-term reasonably available control measure. However, use of these specifications does not
guarantee success. Failure of any
revegetation method as a long-term reasonably available control measure
requires re-application or other control method approved by the
department. The disturbed area shall
maintain compliance with 20.11.20 NMAC.
(1) The native seed species used and rate
of application should be as provided in Subsection F of 20.11.20.24 NMAC.
(a) If the area to be seeded is along a
recreational trail of any type, the seed mixes for either type of soil listed
in Subsection F of 20.11.20.24 NMAC should not include four-wing saltbush and the seeding rate should be reduced by one pound
per acre.
(b) Seeds may be pre-mixed by a seed dealer.
Each pre-mixed bag of seed should be sealed and labeled by the
seed dealer in accordance with federal seed laws and New Mexico department of
agriculture labeling laws. The label
should include: variety, kind of seed, lot number, purity, germination, percent
crop, percent inert, percent weed (including noxious weeds), origin, test data
and net weight. Federal seed laws require that analysis shall be no older than
five months for seed shipped interstate and no older than nine months for seed
shipped intra-state.
(c) 48 hours before seeding, the owner or operator should give written
notice to the department by hand delivery or facsimile, requesting inspection
of the sealed seed bags to be used. The department may inspect the sealed seed
bags and labels.
(2) Fertilizer and soil amendments: unless otherwise specified in the fugitive
dust control permit, no fertilizer or other soil amendments are required on
areas to be reseeded.
(3) Mulch:
areas to be reseeded should be mulched as described below unless
otherwise specified in the permit.
(a) Hay mulch: perennial native or introduced grasses of
fine-stemmed varieties should be used unless otherwise specified in the
plan. At least 65 percent of the herbage
by weight of each bale of hay should be 10 inches in length or longer. Hay with noxious seed or plants should not be
used. Rotted, brittle, or moldy hay are not considered acceptable. Marsh grass or prairie hay composed of native
grass of species to be seeded is considered acceptable. Tall wheat grass, intermediate wheat grass,
switch grass, or orchard hay will be acceptable if cut prior to seed
formation. Marsh grass hay should be
composed of mid and tall native, usually tough and wiry grass and grass-like
plants found in the lowland areas within the Rocky Mountain region. Hay should be properly cured prior to
use. Hay that is brittle, short fibered
or improperly cured is not considered acceptable. Hay mulch should be crosshatched crimped to
minimum depth of two inches.
(b) Straw mulch: small grain plants such as wheat, barley,
rye, or oats should not be used. Alfalfa
or the stalks of corn, maize or sorghum are not considered acceptable. Material which is brittle, shorter than 10
inches or which breaks or fragments during the crimping operation are not
considered acceptable. Straw mulch
should be crosshatched crimped to minimum depth of two inches.
(c) Gravel mulch: gravel mulch should be a maximum of
three-quarter to one inch in diameter and must have been crushed or screened
with a minimum of one angular face.
Experience has demonstrated that gravel mulch provides very successful
results on steep slopes and other areas that may be difficult to stabilize.
(d) Erosion control mats, fabric or
blankets: the type of erosion control
mats, fabric or blankets used should be specified in the fugitive dust control
permit.
B. Seed
bed preparation:
(1) Prior to
starting seed bed preparation, the final grades of all earthwork should be
inspected and certified by a New Mexico licensed engineer, and a copy of the
certification should be delivered to the department:
(a) no soil preparation should be
performed when the surface is wet or muddy or when the soil is so moist that
the soil is not fully loosened by the discing operation;
(b) if erosion, crusting or re-compaction
occurs in an area before seeding, mulching and crimping are successfully
completed, the area should be reworked, beginning with seedbed preparation.
(2) Mechanical preparation: the
seedbed should be loosened to a minimum depth of six inches by disc or
harrow. Areas of heavy or compacted soil
may require additional preparation by chiseling or ripping if discing alone
does not result in preparation to the full minimum depth of six inches. The soil should be worked to a smooth surface
and should be free of clods, stones four inches in diameter and larger, and
debris or foreign material that could interfere with seeding or crimping
operations.
(3) Hand preparation: areas
which cannot be prepared with mechanized equipment because of small size,
irregular shape or slope may be prepared to a minimum depth of two inches using
hand tools or a rototiller, as specified in the permit.
C. Seeding:
(1) Should not
start until the seed bed preparation has been inspected and certified by a New
Mexico licensed engineer, a New Mexico licensed landscape architect, or other
professional approved by the department (e.g. a department certified erosion
control specialist). Notice in writing
or by facsimile providing certification pertaining to the seed bed preparation
should be given to the department at least 48 hours prior to beginning seeding
operations so that the department has an opportunity to inspect the site. No seeding operations should be conducted
when steady wind speeds exceed 10 miles per hour.
(2) Seed application:
(a) Drill seeding: drill seeding is highly recommended. Seed should be applied with a “rangeland”
type seed drill equipped with packer wheels.
Seed should be drilled to a maximum depth of one-half inch. Direction of seeding should be across slopes
and on the contour whenever possible.
(b) Broadcast seeding: seed may be applied using the broadcast
method when size, irregular shape, or slope exceeding three to one, prevents
the use of a seed drill. Seed may be broadcast
by hand or by a mechanical seeder provided that the seed is evenly distributed
over the seeding area. Areas that are
broadcast seeded should be seeded at a rate that is double the rate used for
drill seeding. Areas of broadcast
seeding should be hand raked to cover seed.
(c) Seeding with gravel mulch: areas to be gravel mulched should be seeded
at double the standard seed rate with one-half the seed applied prior to
application of gravel and one-half of the seed applied on the surface of the
gravel. Water should be applied in a
quantity sufficient to wash seed from the surface and into the gravel.
(d) Hydro seeding: hydro seeding with native grass will normally
only be successful on areas that will be irrigated.
D. Hay
or straw mulching:
(1) All
seeded areas should be mulched unless otherwise specified in the fugitive dust
control permit. On seeded areas that are
level or have slopes that are a ratio of three to one or less, any of the four
types of mulching below may be used. On
erosion control areas or slopes steeper than a ratio of three to one, only
gravel mulch or erosion control materials should be used.
(2) Hay mulch should be applied at a
minimum rate of one and one-half tons per acre of air dry hay.
(3) Straw mulch should be applied at a minimum rate of two and
one-half tons per acre of air dry straw.
(4) Hay or straw mulch should be
crosshatched crimped into the soil to a minimum depth of two inches.
(a) The mulch should be spread uniformly
over the area either by hand or with a mechanical mulch spreader.
(b) When spread by hand, the bales of
mulch should be torn apart and fluffed before spreading.
(c) Mulching should stop when wind speeds
exceed 15 miles per hour.
(d) The mulch should be wetted
down and allowed to soften for approximately 15 to 20 minutes prior to
crimping.
(e) A heavy disc should be used to crimp
or anchor the mulch into the soil to a minimum depth of two inches. A mulch-tiller with flat serrated discs at
least one-quarter of an inch in thickness, having dull edges with discs spaced
six inches to eight inches apart or similar equipment should be used. The discs should be of sufficient diameter to
prevent the frame of the equipment from dragging the mulch.
(f) The crimping operations should be
across the slope where practical, but not parallel to prevailing winds. In general, crimping should be in a
north-south direction or in tight interlocking “S” curves to avoid straight
east-west crimp lines.
(g) If small grain straw mulch is used,
the mulch should be crimped in two directions in a cross-hatch pattern.
(5) Gravel mulch: gravel mulch should be laid evenly by hand or
by equipment to a thickness of two inches.
(6) Erosion control mats, fabric or
blankets: the type of erosion control
mats, fabric or blankets used should be as specified in the fugitive dust
control permit. Anchoring of the erosion
control materials should be consistent with the manufacturer’s recommendations.
(7) Upon completion of the reseeding
project, the permittee should deliver written notice to the department in a
timely manner, certifying completion of seeding project.
E. Protection of native grass seeded
area: the
person, owner or operator who has elected to use native seeding as a control
measure shall be responsible for protecting and caring for the seeded area
until plants are fully established.
After project completion, the owner or operator shall repair any damage
to seeded areas caused by pedestrian or vehicular traffic or vandalism. During periods of low rainfall, supplemental
watering may be required to successfully establish the native grass seed. Because the owner is responsible for the
fugitive emissions leaving the property, failure of the reseeding project shall
not be a defense to enforcement of 20.11.20 NMAC. The owner or operator may find it necessary
to reseed or use other reasonably available control measures to bring the
property into compliance. The department
strongly recommends that any area being seeded or mulched be adequately fenced
and posted to prevent trespass traffic.
F. Seed
specifications and rates should be used as established by the most recent
edition of “city of Albuquerque standard
specifications for public works construction - native grass seeding” section
as updated by the city or as approved in writing by the department.
G. Variations in seeding due to special
environmental conditions: the
owner or operator may use a different seeding mixture in
order to address special environmental conditions that make it unlikely
for success of the reseeding effort. Use
of an annual rye (Lolium sp.) or cool season grasses (e.g. barley at 10
pounds per acre) may be added to the seed specification in
order to help stabilize soils, especially for disturbed areas comprising
25 acres or more when a significant amount of the publicly-owned land or
privately-owned real property is not expected to be built upon within one year.
[20.11.20.24 NMAC - Rp, 20.11.20.24
NMAC, 9/9/2025]
20.11.20.25 REVIEW MEETING:
TIMELY PETITION FOR HEARING BEFORE THE BOARD:
If a permit applicant or permittee (requestor) asks the department to meet informally to review and
reconsider the department’s decision regarding the applicant’s permit
application in the manner provided by 20.11.20.25 NMAC, the process shall not
extend the 30-day deadline for filling a timely petition for a hearing before
the board as provided by 20.11.81 NMAC.
If a requestor is adversely affected by, or
disagrees with the department’s decision regarding the requestor’s permit
application, the requestor may request an informal review meeting to discuss
the department’s decision. The request
shall be in writing or on a form provided by the department. Within five business days after the requestor
receives the department’s decision regarding the permit application, the
requestor shall deliver the written request to a division manager. Within five business days after a division
manager receives the request, a division manager or designee shall hold an
informal review meeting with the requestor and an additional division
representative (e.g. the person assigned to the permit application review) in an attempt to resolve disagreements. Within two business days after the informal
review meeting, a division representative shall mail, hand deliver or deliver
by facsimile a statement to the requestor stating whether the department has
changed its decision regarding the permit application, and, if so, specifying the change and the reason for the change. A person who participated in a 20.11.20 NMAC
permitting action before the department and who is adversely affected by the
decision made by the department, may follow the procedures described in
20.11.81 NMAC to petition for a hearing before the board.
[20.11.20.25 NMAC - Rp, 20.11.20.25
NMAC, 9/9/2025]
20.11.20.26 VISUAL DETERMINATION OF FUGITIVE DUST EMISSIONS:
The following method, hereafter
called the “visible fugitive dust detection method”, is used to visually
determine the total amount of time that fugitive dust emissions are visible
during a continuous one-hour observation period. If a trained department observer records
visible fugitive dust crossing a property line of the property being
investigated, for a total of 15 minutes or more during a continuous one-hour
period, a violation of 20.11.20 NMAC has occurred. The observer does not have to be certified in
procedures found in 40 CFR 60, Method 9, Visual Determination of the Opacity
of Emissions from Stationary Sources
(EPA Method 9). However, the observer
shall receive training regarding how to identify a violation of 20.11.20 NMAC
that is caused by anthropogenic activities and to distinguish fugitive dust
that emanates from a source that is not required by a board regulation other
than 20.11.20 NMAC to obtain a permit.
Training shall consist of attendance at and completion of the lecture
portion of a Method 9 certification course and familiarity with the written
materials provided during the course.
The method described in Subsections A through D of 20.11.20.26 NMAC does
not require the opacity of emissions to be determined during the observation
period.
A. To
correctly perform this method, the observer shall use two stopwatches. One stopwatch shall be used to record the
continuous one-hour time period during which the
observation is conducted. This period
shall be known as the “observation period.”
The second stopwatch shall be used to record the total accumulated
amount of time that visible fugitive dust is crossing a property line during
the observation period. The second
stopwatch shall establish the “visible fugitive dust emission time”.
B. Prior
to the observation, the observer shall:
(1) determine the location of potential
fugitive dust source(s) and the location of the downwind property line for the
source;
(2) sketch the location of the fugitive
dust source(s), and, when available during the observation, record the
observer’s location on a copy of the fugitive dust control permit map or aerial
photograph;
(3) sketch or photograph the location of
the downwind property line and physical features that help define the property
line;
(4) sketch or photograph the observer’s
location during the observations;
(5) sketch the position of the sun
relative to the observer;
(6) document that the visible fugitive
dust is not originating from an upwind source other than the source being
evaluated; and
(7) maintain a minimum distance of at
least 15 feet from the visible fugitive dust being observed, and a maximum
distance of no more than one-quarter mile away.
C. The
observer shall record:
(1) observer’s name and affiliation;
(2) date of observation;
(3) company name, property owner or
operators, if known;
(4) description of the fugitive dust
sources;
(5) wind speed and direction (explain
method of determining the wind speed, i.e., hand-held anemometer); and
(6) sky conditions.
D. The
observer shall record the time of day when the observation begins. The observer shall start the first stopwatch
to begin recording the observation period and shall observe along the property
line. With the second stopwatch, the
observer shall record the length of time visible fugitive dust is crossing the
property line. The observer shall stop
the second stopwatch when the visible fugitive dust is no longer detected
crossing the property line. The observer
shall continue this procedure during the continuous one-hour observation period
or until the visible fugitive dust emission time totals 15 minutes or greater
during the continuous one-hour observation period, which is a violation of
20.11.20 NMAC. The observer shall record
the time of day when the observation ends.
If the observer determines that the visible fugitive dust being observed
is of an intensity that may cause immediate danger to human health or safety,
then, before the observation period is completed, the observer shall attempt to
immediately contact the responsible person, permittee or owner.
[20.11.20.26 NMAC - Rp, 20.11.20.26
NMAC, 9/9/2025]
20.11.20.27 ENFORCEMENT:
A. All
persons shall use control measures that are effective in maintaining compliance
with 20.11.20 NMAC. Violation of a
fugitive dust control permit or fugitive dust control plan approved by the
department is a violation of 20.11.20 NMAC.
If a violation occurs or is occurring, the department may issue a verbal
warning, issue a written warning, initiate an administrative enforcement action
and assess an administrative civil penalty, and take all other actions
authorized by law and equity, including issuing a stop work order as authorized
by 20.11.20.27 NMAC.
B. If
the department determines a person has violated or is
violating a requirement or prohibition of 20.11.20 NMAC, the department may
initiate an administrative enforcement action and assess an administrative
civil penalty for a past or current violation, or both, as authorized by paragraph
(1) of Subsection A of Section 74-2-12 NMSA 1978. As also authorized by paragraph (2) of
Subsection A of Section 74-2-12 NMSA 1978 and Section 74-2-12.1 NMSA 1978, the
department may commence a civil action in New Mexico district court for
appropriate relief, including a temporary or permanent injunction. In addition, as authorized by Section 74-2-14
NMSA 1978, the department also may commence or cause a criminal action to be
commenced.
C. As
authorized by Subsection H of Section 74-2-12 NMSA 1978, in connection with an
administrative enforcement action, the director may issue subpoenas for
attendance and testimony of witnesses and the production of relevant papers,
books and documents and may adopt rules for discovery procedures.
D. If a person (requestor) asks the department for an
informal review meeting to consider the department’s decision regarding an administrative compliance order in the manner
provided by 20.11.20.27 NMAC, the process shall not extend the 30-day deadline
for submitting a written request to the department director requesting a public
hearing as provided by Subsection C of Section 74-2-12 NMSA 1978. If a person
receives an administrative compliance order from the department, that person
(“requestor”) may request an informal review meeting to discuss the
administrative compliance order. The
request shall be in writing or on a form provided by the department. The requestor shall deliver the written
request for an informal review meeting to the director and a division manager
within five business days after the requestor has received the administrative
compliance order. Within five business
days of receiving the request, a division manager or designee shall hold an
informal review meeting with the requestor and a division representative (e.g.
division manager, compliance officer, or person issuing the order) in an attempt to resolve the administrative compliance
order. Within two business days after
the informal review meeting, a division representative shall mail, hand deliver
or deliver by facsimile a statement to the requestor with the department’s
final decision regarding the administrative compliance order and the reasons
for the decision. If the requestor is
adversely affected by the final decision made by the department, the requestor
may follow the procedures described in Subsection E of 20.11.20.27 NMAC.
E. A
person who receives an administrative compliance order and chooses not to sign
the compliance order or similar document as requested by the department, and
comply with its terms, may request a hearing consistent with Subsection C of
Section 74-2-12 NMSA 1978. The decision
following the hearing may be appealed consistent with Subsection
A of Section 74-2-9 NMSA 1978.
F. Payment
of an administrative civil penalty shall not prevent the department from taking
additional enforcement actions, if the violation is repeated or an additional
violation occurs. Payment of an
administrative civil penalty for a prior or additional violation shall not be a
defense to a subsequent action taken by the department to resolve an additional
violation. Actions by the department may
include suspension or revocation of a permit, as provided by Subsection B of
Section 74-2-12 NMSA 1978, and issuance of a stop work order.
G. The permittee or responsible
person as identified in the permit shall take all actions required by the
permit to prevent a violation of 20.11.20 NMAC, including stopping active
operations, if necessary. If the permittee
or responsible person as identified in the permit fails to take all required
actions, the owner or operator, if different, shall take all actions required
to prevent or satisfactorily resolve a violation of 20.11.20 NMAC, including
stopping active operations, if necessary.
H. The
department may issue a stop work order, which shall suspend all active
operations except for the required application of reasonably available control
measures. The department also may revoke
a permit issued by the department if the permittee fails to implement the
reasonably available control measures required by the fugitive dust control
permit.
I. If
a person fails to obtain a permit as required by 20.11.20 NMAC, the department
may issue a stop work order which shall require all active operations at a site
to stop except for application of reasonably available control measures.
J. The
stop work order, which shall be effective 24 hours after the person, permittee,
owner, operator, or responsible person named in a permit receives the stop work
order, unless an earlier deadline for stopping work or other activities is
imposed by the department for good reason.
The stop work order shall remain in effect until the person, permittee,
owner, operator, or responsible person named in the permit demonstrates to the
satisfaction of the department that the activities of the person, permittee, owner,
operator or responsible person named in the permit comply with the provisions
of 20.11.20 NMAC.
[20.11.20.27 NMAC - Rp, 20.11.20.27
NMAC, 9/9/2025]
20.11.20.28 PUBLIC OUTREACH AND TRAINING:
A. The
department shall provide or approve public education regarding reducing
fugitive dust. The department shall
maintain an electronic information system using the Internet in
order to provide access to the general public
and regulated business community regarding fugitive dust control programs,
activities, regulations, regulatory requirements, forms and information.
B. The
department shall implement a program to provide training at no cost to
individuals who are or may be required to comply with provisions of 20.11.20
NMAC. Approximately twice per year, the
department shall provide or approve training workshops on fugitive dust and its
control to persons who conduct or participate in projects involving active
operations and to other interested persons.
When a person attends the training and successfully passes a test, the
department or approved trainer shall issue a certificate stating that the
person has successfully completed the training.
[20.11.20.28 NMAC - Rp, 20.11.20.28
NMAC, 9/9/2025]
20.11.20.29 COMPLAINTS: The department shall respond to complaints from residents,
businesses and others in a timely manner, but in no case shall the initial
response take longer than three business days.
[20.11.20.29 NMAC - Rp, 20.11.20.29
NMAC, 9/9/2025]
HISTORY
OF 20.11.20 NMAC:
Pre-NMAC History:
The material in this part was
derived from that previously filed with the commission of public records -
state records center and archives.
Regulation No. 8, Airborne
Particulate Matter, filed 3/24/82.
Regulation No. 8, Airborne
Particulate Matter, filed 2/17/83.
Other History: Regulation No. 8,
Airborne Particulate Matter (filed 2/17/83) was renumbered and reformatted into
first version of the New Mexico Administrative Code as 20 NMAC 11.20, Airborne
Particulate Matter, effective 12/01/95.
20 NMAC 11.20, Airborne Particulate
Matter (filed 10/27/95) replaced by 20 NMAC 11.20, Airborne Particulate Matter,
effective 07/01/96.
20 NMAC 11.20, Airborne Particulate
Matter (filed 5/29/96) renumbered, reformatted and replaced by 20.11.20 NMAC,
Fugitive Dust Control, effective 3/1/04.
History
of Repealed Material:
20
NMAC 11.20, Airborne Particulate Matter (filed 5/29/96); repealed 3/1/04.
20.11.20 NMAC, Fugitive Dust Control (filed 1/28/04) repealed
3/17/08.
20.11.20 NMAC, Fugitive Dust Control (filed 1/28/04)
replaced by 20.11.20 NMAC, Fugitive Dust Control, effective 3/17/2008.
20.11.20 NMAC Fugitive Dust Control,
filed 3/17/2008, was repealed and replaced by 20.11.20 NMAC Fugitive
Dust Control, effective 9/9/2025.