MaricopaCounty Tightens Dust Control Vice
Legal Notes, ABA-Arizona Builders' Alliance
4.1.2001
As everyone involved in the construction industry is well aware, MaricopaCounty has targeted construction sites for enforcement of the County's dust control regulations. Since increasing enforcement efforts eight months ago, the County has collected some $300,000 in penalties for claimed violations of dust control regulations against approximately 70 contractors.

Targeted Violations

The Maricopa County Department of Environmental Services (the "Department") adopted an enforcement policy in April 2000. The policy targets ten potential violations at construction sites for strict enforcement and referral to the CountyAttorney's Office for further enforcement action. The ten offenses include:

  • Operating without a permit;
  • Failing to use dust control measures;
  • Failing to control dust on haul roads and access roads;
  • Failing to control dust on inactive portions of construction sites;
  • Failing to maintain at least three inches of free board on haul trucks;
  • Failing to cover loads contained in haul trucks;
  • Spilling dirt onto paved public roadways;
  • Failing to use a track out control device;
  • Track out of dirt, exceeding 50 feet, onto paved public roadways;
  • Failing to use water to control dust on active portions of a construction site.

Inspection Procedures

Contractors must be familiar and comply with the dust control regulations, but they should also be familiar with their rights during an inspection and throughout the enforcement process. Besides targeting certain violators for strict enforcement, the enforcement policy establishes procedures inspectors must follow when conducting site visits.

A dust control inspector who enters a construction site is required to present photo identification, to state the purpose of the inspection and the legal authority for the inspection. He also must afford the affected contractor with the opportunity to have an on-site representative accompany the inspector while he is on site.

The inspector is required to provide a written statement that outlines the rights of the affected contractor, the name and telephone number of a contact person available to answer questions regarding the inspection, and the due process rights relating to an appeal of a final agency decision based on the results of the inspection.

Inspectors are required to describe the details and relevant information regarding any violations discovered as soon as possible using a compliance inspection report or other form. The inspector should describe the violation and identify any people who are interviewed during the inspection.

An inspector's failure to follow the outlined procedures is not a basis to exclude evidence obtained during the inspection. But the failure of an employee to comply with these requirements may constitute cause for disciplinary action and may be considered as grounds for reduction of any fine or penalty.

Opportunity to Correct

Although the County has determined to refer the violations noted above directly to the CountyAttorney, the County may provide a contractor with an opportunity to correct a deficiency. A contractor may be given an opportunity to correct unless the Department determines one of the following:

  • the deficiency was committed intentionally;
  • the deficiency was not correctable within a reasonable period of time;
  • the deficiency is evidence of a pattern of non-compliance; or
  • the alleged violation poses a risk to public health, welfare or the environment.

Enforcement Options

Once the Department refers an alleged violation to the CountyAttorney for enforcement, the CountyAttorney has several options.

First, the CountyAttorney may request a settlement conference with the alleged violator and an air quality enforcement officer before a formal complaint is filed. If a settlement agreement is reached at this phase, the parties enter into a written agreement which typically includes monetary penalties. Under the enforcement policy, the agreement can also provide for reimbursement of costs for the investigation, violator education, and possibly other sanctions.

Second, the CountyAttorney may file a criminal complaint. Under Arizona law, a failure to comply with applicable air quality control regulations may be a criminal offense. Under the policy, the matter may then proceed to trial or the parties may enter into a plea agreement which may include monetary penalties, reimbursement of costs incurred for the investigation and prosecution of the claimed violation, and violator education.

Finally, the CountyAttorney's Office may file a civil complaint seeking monetary penalties and injunctive relief.

As a matter of practice, the Department and the CountyAttorney's Office have attempted to settle alleged air quality violations and hold out the possibility of a criminal or civil complaint if settlement cannot be reached.

At the settlement conference, the Deputy County Attorney reviews the enforcement process and procedures, and a representative from the Department explains the penalty policy and how the Department arrived at a proposed penalty to settle the claimed violation. The alleged violator then has an opportunity to present evidence the inspector may have overlooked and circumstances that would justify either conclusion of the matter without the payment of a penalty or reduction of the penalty proposed by the Department.

The Department's enforcement policy does not require that a settlement be concluded at the initial settlement meeting. If the contractor wishes to consult with counsel or obtain additional information regarding the alleged violation, either a follow up meeting may be scheduled or the negotiations may continue outside of formal meetings. Before concluding a settlement, the contractor should be certain that the information reported by the inspector is accurate, that the violation occurred, and that the County's evaluation of the circumstances surrounding the violation are accurate.