Avoiding Liability for Fugitive Dust Emissions
Jany K. Jacob
(Reprinted from Seattle Daily Journal of Commerce)

        Contractors carrying out abrasive sandblasting operations in the Seattle area may be more than a little surprised by a Puget Sound Clean Air Agency (PSCAA) inspector coming onto the project site, in response to a complaint by a member of the general public, and citing the contractor and/ or owner for violations of the PSCAA’s “fugitive dust” rules. These inspectors may also assess monetary penalties and order a shutdown of operations until proper control technology is installed and corrective measures are taken. Fugitive dust in abrasive sandblasting operations refers to the visible airborne particles (or “fallout”) generated by the sandblasting, and can either be a product of the structure that is being blasted or the medium that is used to abrasively blast this structure, or both. The main regulatory concern is that inhaling fugitive dust in sufficient quantities over time may cause respiratory diseases, especially if the abrasive sandblasting causes the emission of a toxic air contaminant into the environment.

        The PSCAA is a regulatory body governing environmental air quality in the four-county area (i.e. King, Snohomish, Kitsap and Pierce counties), and all sandblasting operations conducted therein come under its jurisdiction. The Agency has the authority to issue citations, assess and mitigate civil penalties, and issue consent decrees; appeals of PSCAA decisions may be made to the Pollution Control Hearings Board (PCHB). Pursuant to its delegated authority, the PSCAA has promulgated Regulation I, which provides the following guidelines for fugitive dust emissions. Section 9.11(a) prohibits emissions of any air contaminant in sufficient quantities, or of such characteristics and duration, so as to be injurious to human health, or so as to unreasonably interfere with the enjoyment of life and property. Section 9.15(a) requires the use of “reasonable precautions,” including reasonably available control technology, to minimize fugitive dust emissions.

        To avoid running afoul of the PSCAA regulations, contractors should develop an effective capture system for fugitive dust that will minimize its impact on neighboring properties, taking into account the nature of these properties. But the subjective standards in the regulations leave contractors, and ultimately their lawyers, wondering just how effective this capture system need be. Understandably, a fairly effective capture system is required for toxic air contaminants or heavy metals. Sandblasting operations causing such emissions should ideally be conducted in a vacuum, so to speak, where the dust generated is captured by either high- recovery hydroblasting or vacuum technology. Methods that may be effective for less serious situations include wet blasting, where the moisture diminishes the occurrence of dust clouds, or the extensive use of tarping and screens. What is certain not to meet the PSCAA’s reasonableness standard is open blasting in a residential area. For a more general guide to compliance with fugitive dust regulations, the Fugitive Dust Task Force of the Associated General Contractors of Washington (AGC) has collaborated with the PSCAA to publish a brochure entitled “Guide to Handling Fugitive Dust From Construction Projects” and copies may be obtained from either the AGC or the PSCAA.

        Preventative measures such as setting in place a Dust Control Plan may avoid environmental liability for fugitive dust emissions. This is an internal document that sets out the company policy regarding control measures during sandblasting operations. The added benefit of drafting such a document is that, in addition to being a preventative tool, the existence of a Dust Control Plan may convince regulators to mitigate civil penalties. A Dust Control Plan should designate a corporate safety officer to assume the role of determining the reasonable precautions necessary to minimize fugitive dust. This is done on a case-by-case basis, depending upon industry norm, the proximity of the sandblasting operations to residential areas, and the constituents of the blasted/ blasting material. Another preventative measure is setting in place a complaint procedure for adjoining landowners whereby a corporate officer receives complaints and takes affirmative action in response to a complaint.

        Finally, contractors could arrange a fugitive dust class for construction employees working on-site (such classes are available through the Education Foundation of the AGC). Owners, for their part, could take steps to include PSCAA regulations in SEPA review, or include fugitive dust control measures in the plans and specifications of the project. These preventative measures should be taken as an investment that may well be cheaper in the long run than the costs of non-compliance.