Maricopa County Tightens the Regulatory Grip on Contractors, Construction Sites

Updated 09/05/2008

In response to an EPA ultimatum, the Maricopa Association of Governments (MAG), the Arizona Department of Environmental Quality and other regulatory agencies have devised a State Implementation Plan to bring the Phoenix area into compliance with federal dust-control requirements. Consequently, the County is cracking down on dust-control violations, with particular scrutiny on construction sites.

Visit the Maricopa Association of Governments website for information on the MAG Air Quality Technical Advisory Committee's meetings, projects, plans and notices

Fines handed out to contractors and developers are multiplying as the County takes additional measures to meet the EPA deadline. In 2007, fines paid for Maricopa County air quality violations exceeded $5.3 million, up from $3.7 million in 2006. Individual fines in December 2007 reached $98,500. The assessment trend is continuing in 2008.

Recent Developments

In the Phoenix area, Maricopa County Air Quality Department (MCAQD) has increased the number of compliance inspectors (from eight to more than 50) and is expected to have more than 90 in the field before the end of 2008. Additionally, MCAQD has revised the local air-quality rules to include more stringent standards for fine particulate matter and to refine detection methods for determining pollutant concentrations.

Stricter Rules. The regulatory burden grew heavier on March 26, 2008, when subcontractors became regulatory targets and the County deployed an expanded inspection force.

The Maricopa County Air Quality Department has posted a draft of the more stringent rules at www.maricopa.gov/aq (click on “Rules & Regulations”). These new measures (see a one-page summary) include limiting track-out, cutting time between when land is cleared and construction started, and prohibiting visible dust from crossing property lines.

Highlights of the new measures that affect subcontractors include:

• Subcontractors must register, pay a $50 fee, and receive a registration number.

• Failure to register and/or properly post your registration number will probably result in a fine.

• The County may issue violation notices to subcontractors who do not comply with dust-control regulations.

• Subcontractors must receive a copy of the contractor’s Dust Control Permit and Dust Control Plan.

• Water truck and water pull drivers must receive Basic Dust Control Training by December 31, 2008. Refresher training is required every three years.

• Contractors must maintain an updated written record at every construction site of all subcontractors’ names and registration numbers.

Other changes, whether enacted or anticipated, include these:

• Asbestos fees have been increased significantly (per Rule 280), increasing the burden on demolition contractors.

• The definition of “Area Accessible to the Public” (Rule 310, Section 200) is being more broadly interpreted to include schools, churches, hospitals, and other non-retail areas. Fines for dust control violations near those areas may increase due to the sensitivity of many of the individuals in those areas. 

To comply with the crackdown on dust emissions, local contractors and developers must implement effective control measures and work strategies. (Subcontractors are not required to have a dust-control plan, per se, but, as noted above, they must register and pay a fee. In addition, subcontractors can be cited for violations of their own making.) Developing a plan usually begins with a dust-control permit, which the County requires on all jobsites that will disturb more than a tenth of an acre.

To obtain a permit, a contractor must first submit a dust-control plan for County approval. A dust-control plan involves the implementation of control measures before, during and after conducting any dust-generating operation. (On sites larger than five acres, the permit holder must designate an employee responsible for dust-control plan compliance.) Common control measures include watering, using wind barriers, maintaining and cleaning vehicles, chemically stabilizing the soil, and using track-out control devices. To develop a dust-control plan and contingency measures, it may be useful to engage the services of a local environmental consulting firm such as Focus Environmental (623-551-0036).

The MCAQD website offers current information on dust compliance and related applications/forms, rules/regulations and answers to frequently asked questions

Once a dust-control plan has been formulated, it is the contractor’s responsibility to:

• read and understand the dust-control permit and plan and have them available at the jobsite;

• implement the dust-control plan and ensure that all employees, workers and subcontractors know their responsibilities;

• use contingency control measures when primary controls are ineffective;

• monitor the worksite for compliance with the dust-control plan; and

• keep a daily log monitoring the implementation and effectiveness of the control measures.

While it is not officially required, contractor designation of a dust-control site coordinator has shown to be a sound and, for all practical purposes, necessary component of a dust-control plan. The site coordinator must have authority over dust issues, and he should have a fully trained backup to serve in his capacity during his absence.

 The consequences of noncompliance are not limited to the fines discussed earlier. Any entity or person who violates the MCAQD rules may be subject to injunctive measures that bring all work to a halt. Further, violators may be subject to misdemeanor or felony charges. Moreover, if a contractor fails to comply, the owner or developer may also be held responsible for the violation.

What to Do

The bottom line for Valley construction is that, now more than ever, contractors must learn and understand their obligations with respect to dust-control. Increased awareness and a commitment to developing and implementing a dust-control plan will go far to minimize the loss of time and money that can result from non-compliance.

This is a rapidly changing issue that requires contractors' ongoing attention. To help contractors keep their primary focus on their business, Lang & Baker has developed resources that may prove useful to contractors in complying with the County's mandate and in mitigating the financial penalties of non-compliance.

For more information, contact Lang & Baker construction and dust-control attorney Mike Thal. If you have received a Notice of Violation and are unsure of how to proceed, Mr. Thal will offer you initial guidance by phone (480-947-1911) at no charge. 

What should be in a dust-control plan? Is there anything that should not be included?

Rule 310 spells out what a plan must contain. In a nutshell, a dust-control plan must address anything that will be done on the jobsite to comply with the rules, including such things as document storage and log maintenance, watering schedules, the amounts of water used, a description of the trackout devices used, right down to how contractor and subcontractor permits will be displayed. If it has anything to do with dust, it should be in the dust-control plan.

How important is it to put measures in our plan to determine its effectiveness?

Having a method for measuring plan effectiveness is very important, for two reasons. First, it helps ensure continued compliance. Second, it can reduce the amount of the fine in case a Notice of Violation is issued. Specifically, a good dust-control plan includes a schedule by which the environmental consultant performs the same on-site testing that an inspector would perform. Testing generally measures opacity, stabilization, sieve analysis, and so on.

What are the benefits of using an environmental consulting firm to develop a dust-control plan?

A good environmental consultant can develop a specific plan that fits your operation. They also streamline the permitting process through their relationships with regulators and providing quality exhibits and calculations that the County can rely on in approving your plan. Finally, since the plan is a dynamic document, the consultant can address changes quickly and limit your exposure.

How can Lang & Baker help us comply with dust-control regulations?

First, in addition to helping you be aware of Rule 310 and the required permits and fees, we try to focus your attention on the practical things that lead to dust-control violations and what to do when an inspector comes to your site (see the Anatomy of a Dust Control Violation).

Second, we refer you to environmental consultants (for help in developing a dust-control plan) and to dust-control equipment suppliers.

What happens if our dust-control plan is approved, we follow it, and we receive a Notice of Violation anyway?

The good news is that having a good dust-control plan would be a mitigating factor in terms of the size of the fine. The bad news is that the County will not sympathize with the “compliance is impossible” defense. The new rules are essentially based on rules adopted in Clark County, Nevada, several years ago. If challenged on the reasonableness of the rules, Maricopa County will likely point to Clark County as proof that compliance is possible.

How can Lang & Baker help us when we receive a Notice of Violation?

If you receive a Notice of Violation, we can arrange for independent testing to challenge the inspector’s findings. An effective challenge can mitigate the fine, and in some cases cause the Notice of Violation to be dismissed entirely.

Perhaps more important, we can protect you from being steamrolled by the County and make sure your rights are protected. We attend settlement negotiations and advise you on whether the County’s settlement offer is fair. If the case goes to a hearing, we present testimony and other evidence that we believe will get the best possible result.

If we receive a Notice of Violation, how can we minimize the fines and penalties?

Generally, make sure everyone on the jobsite understands your dust-control plan and follows it. If the inspector finds a violation but believes that everyone is making a good-faith effort to enforce your plan, that by itself can reduce the fine.

More specifically, some contractors have reduced their fines by mounting successful challenges pertaining to sieve tests and property line emissions.

Sieve Tests. A contractor has the option of having the sieve test done at an independent site that uses ASTM (American Society for Testing and Materials) certified tests. The benefit to the contractor: ASTM certified tests will yield different results, because Maricopa County's testing methods may not be scientifically accepted. Other challenges to the validity of a County sieve test may be based on the following questions: Has the sieve been calibrated or cleaned? How new is it? Has it been properly maintained? Has it been dropped? What is the chain of custody? Was a sample split performed?

Property Line Emissions. Because County inspectors are not well trained in determining property boundaries, their credibility in determining the geographic source of fugitive dust is subject to challenge. Some contractors have successfully challenged a notice of violation simply by asserting that a fence does not necessarily constitute a property line.

What will happen if we don't get the proper permits?

Maricopa County requires a dust-control plan for any site larger than a tenth of an acre. Oversight is performed by a County control officer. If a contractor does not have a required permit, he has virtually no defense to a notice of violation, and the absence of the permit will be an aggravating factor in calculating his fine, especially if the County finds that his failure to obtain a permit was deliberate or knowing.