Can we force contractors to keep down the dust?

Visitor Question: I live on a busy road. The city has decided it wants to upgrade the street. Considering the number of potholes we get every spring, and sometimes in between seasons too, we did not object.

However, the problem is that they are tearing out the existing pavement and then digging out and re-grading the street, kicking up a ridiculous amount of dust. Every day when I come home from work, I just want to put my feet up and rest, but instead, I find a thick layer of dust all over my outdoor furniture, and even the indoors is getting dustier than usual.

Besides the annoyance of the dust, though, I am worried about what toxic materials might this project be distributing into my home. Before, the city just overlaid the road surface every time it needed to be refreshed, and they had never torn everything out down to the earth until now. My point is that some of the material at the bottom of the surface was no doubt really old and was put in before there were very many environmental rules.

Can't the city require the contractor to keep the dust down? We see sometimes on big road and construction projects in our area that a contractor will spray down the dirt with water. Can this be done on our road project, even though it is not a major highway?

Editors Reply: To answer your question literally, whether or not the city can require the contractor to keep dust under control likely is a function of what the contract says. Some states have laws and rules about various environmental conditions, including whether certain kinds of construction debris must be contained, but if your state has such laws, they probably will be referenced in the city's contract.

So to answer your question, you should contact your city directly and ask about its contract. If you learn that there is a provision about dust control, ask how it is to be enforced and which specific departments or staff members are responsible for enforcement. If the city thinks its contract or its own laws are too vague to be enforced, probably at this point you will begin to encounter some resistance to your questions.

If you think that the city official you speak with is just being evasive, you might have better luck speaking with the city's attorney. In smaller cities, the attorney will be a part-time person who works within a law firm as well. To speak with this kind of city attorney, you likely will have the best luck by speaking with that person before or after a city meeting, such as a city council or plan commission meeting. In cities large enough to have an in-house full-time attorney, or several of them, you can ask to speak with the attorney just as you would ask to speak with any other city employee.

We suggest this because usually the attorneys will be pretty straightforward with you about whether any contract provisions related to dust are enforceable, and if so, how. If there is no such provision in the contract, ask if they know of anything in state law or regulatory agencies that would help you with this situation.

Another angle is to try your local health department. In many states, the health department is housed in the county government, not the city government. They derive their powers from a different set of state laws than the usual municipal enforcement, so sometimes this yields results when a municipality feels its hands are tied.

Your state government surely has an environmental department, and there too it is possible you might find relief. Just do a quick internet search and start exploring, asking for referrals every time you strike out.

Lastly, if there is no legal remedy as such, you can always try the publicity approach. Post some photos on social media, if you have any such accounts. In fact, for maximum impact, try to make posts directed right at the contractor. If you participate in Nextdoor or OneRoof, post there as well. Call any local television stations and ask them to come out and cover the dust cloud. Write a letter to the editor of a local newspaper. If you live in an area covered by a neighborhood association or block club, by all means, enlist the entire membership to copy and amplify your efforts. And of course, if any environmental organizations are active in your area, reach out to them directly, both for ideas about how to approach this problem and for thoughts on who would join you in this complaint.

In the meantime, while waiting for all of these fishing expeditions to yield a bite, you might ask a local librarian for assistance in finding out about the original construction of this road. Sometimes you will find old photos or news articles that will give you clues about the materials used originally, and that information could either allay or aggravate your fears about the content of the dust.

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