49-457.05. Dust action general permit; best management practices; applicability; definitions
A. This section applies in a county with a population of two million or more persons or any portion of a county within an area designated by the environmental protection agency as a serious PM-10 nonattainment area or a maintenance area that was designated as a serious PM-10 nonattainment area.
B. The director shall issue a dust action general permit for regulated activities, which shall specify the best management practices necessary to reduce or to prevent PM-10 particulate emissions as soon as practicable before and during a day that is forecast to be at high risk of dust generation under a forecast issued by the department pursuant to section 49-424.
C. A person that has a permit issued by the director or a control officer for the control of fugitive dust from dust-generating operations is not required to obtain a dust action general permit under subsection D of this section, except that the person shall implement the control measures required in the permit issued by the director or control officer, including those measures related to wind, to reduce or to prevent PM-10 particulate emissions as soon as practicable before and during a day that is forecast to be at high risk of dust generation under a forecast issued by the department pursuant to section 49-424. Failure to implement a control measure under this subsection shall only be enforced by the director or control officer that issued the permit. The director or control officer shall not recover penalties for violations of both this subsection and the permit based on the same act or omission.
D. A dust action general permit may be required for any person that owns or conducts a dust-generating operation that is found by the director to have failed to choose and implement an applicable best management practice listed in the dust action general permit as soon as practicable before and during a day that is forecast to be at high risk of dust generation.
E. The dust action general permit shall:
1. Conform to the requirements of section 49-426, subsection H, paragraphs 2 through 6.
2. Specify categories and lists of best management practices that may vary according to regional, site-specific or activity-specific conditions.
3. Include the appropriate monitoring, record keeping and reporting requirements to ensure the enforceability of the provisions.
4. Specify the process by which the director will determine that a person has failed to choose and implement an applicable best management practice and is therefore subject to a permit prescribed by subsection D of this section. The process shall include a means of providing notice to the person of the person's failure and a means by which the person may challenge the determination.
5. Expire after a period of five years, and may be renewed as prescribed by this section.
F. The director may periodically reexamine, evaluate and modify the dust action general permit as prescribed in section 49-426, subsection H, paragraphs 2 through 6. After approval by the director, any modifications to the dust action general permit shall be provided to the control officer and shall be submitted to the United States environmental protection agency as a revision to the applicable implementation plan.
G. A best management practice adopted pursuant to this section does not affect any applicable requirement in an applicable implementation plan or any other applicable requirements of the clean air act, including section 110(l) of the act (42 United States Code section 7410(l)).
H. Voluntary best management practices that are implemented during a day that is forecast by the department pursuant to section 49-424 to be at moderate risk for dust generation shall be considered by the director or control officer as a mitigating factor in any action taken against that person for failing to implement a dust control measure for that day as required by this chapter, a rule or ordinance adopted pursuant to this chapter or a permit issued pursuant to this chapter.
I. For the purposes of this section:
1. " Applicable implementation plan" means that term as defined in 42 United States Code section 7602(q).
2. " Best management practices" means techniques that are verified by scientific research and that on a case-by-case basis are practical, economically feasible and effective in reducing PM-10 particulate emissions from a regulated activity.
3. " Control officer" has the same meaning prescribed in section 49-471.
4. " Disturbed surface area" means a portion of the earth's surface or material that is placed on the earth's surface that has been physically moved, uncovered, destabilized or otherwise modified from its undisturbed native condition if the potential for the emission of fugitive dust is increased by the movement, destabilization or modification.
5. " Dust-generating operation" means disturbed surface areas, including those of open areas or vacant lots that are not defined as agricultural land and are not used for agricultural purposes according to sections 42-12151 and 42-12152, or any other area or activity capable of generating fugitive dust, including the following:
(a) Land clearing, maintenance and land clean up using mechanized equipment.
(b) Earthmoving.
(c) Weed abatement by discing or blading.
(d) Excavating.
(e) Construction.
(f) Demolition.
(g) Bulk material handling, including hauling, transporting, stacking, loading and unloading operations.
(h) Storage or transporting operations, including storage piles.
(i) Operation of outdoor equipment.
(j) Operation of motorized machinery.
(k) Establishing or using staging areas, parking areas, material storage areas or access routes.
(l) Establishing or using unpaved haul or access roads.
(m) Installing initial landscapes using mechanized equipment.
6. " Fugitive dust" means particulate matter that could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening, that can be entrained in the ambient air and that is caused by human or natural activities, including the movement of soil, vehicles, equipment, blasting and wind. Fugitive dust does not include particulate matter emitted directly from the exhaust of motor vehicles and other internal combustion engines, from portable brazing, soldering or welding equipment or from pile drivers.
7. " Regulated activity" means all dust-generating operations except for the following:
(a) Normal farm cultural practices as prescribed in section 49-504, paragraph 4 or section 49-457.
(b) Emergency activities that may disturb the soil and that are conducted by any utility or government agency in order to prevent public injury or to restore critical utilities to a functional status.
(c) Establishment of initial landscapes without the use of mechanized equipment, conducting landscape maintenance without the use of mechanized equipment and playing on or maintaining a field used for nonmotorized sports, except that these activities shall not include grading or trenching performed to establish initial landscapes or to redesign existing landscapes.
(d) Rooftop operations for cutting, drilling, grinding or coring roofing tile if that activity is occurring on a pitched roof.
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