N.M. Code R. § 20.11.20.16 High Wind Event Requirements; High Wind Event Affirmative Defense

• Library: New Mexico Administrative Code
• Edition: 2023
• Currency: Current through Register Vol. 34, No. 24, December 19, 2023
• Citation: N.M. Code R. § 20.11.20.16
• Year: 2023

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...