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What is a variance? Return to Top
A variance is an administrative exception to a law. A variance allows a
company to continue operating in violation of AQMD rules without penalty while
it takes appropriate steps to meet air pollution control requirements. Variances
can be granted only by the AQMD Hearing Board, not by AQMD
inspectors or engineers.
There may be good reasons why a company can't immediately comply with air
pollution control laws. But operating outside the law can result in a fine, or
even the shutdown of an operation. The only legal way to operate while working
toward a solution without being subject to penalties is to get a variance.
Basis for granting or denying a variance Return to Top
The Hearing Board must make six findings on a case before a variance can be
granted (Section 42352, California Health & Safety Code).
- That the petitioner for a variance is, or will be, in violation of Section
41701 or of any rule, regulation, or order of the district.
- That, due to conditions beyond the reasonable control of the petitioner,
requiring compliance would result in either:
an arbitrary or unreasonable taking of property, or
the practical closing and
elimination of a lawful business.
- That the closing or taking would be without a corresponding benefit in
reducing air contaminants.
- That the applicant for the variance has given consideration to curtailing
operations of the source in lieu of obtaining a variance.
- During the period the variance is in effect, that the applicant will
reduce excess emissions to the maximum extent feasible.
- During the period the variance is in effect, that the applicant will
monitor or otherwise quantify emission levels from the source, if requested
to do so by the district, and report these emission levels to the district
pursuant to a schedule established by the district.
Additional information the Hearing Board must consider in making these six
findings is provided in AQMD
Regulation V.
Types of variances
Return to Top
There are four types of variances:
Emergency
When a situation develops without warning (such as an equipment breakdown,
power failure, or similar event that could cause a violation of AQMD rules) an emergency
variance is required. Any member of the Hearing Board may grant an emergency
variance, without public notice or hearing.
Interim
For immediate coverage other than for emergencies, an interim variance--which
does not require a public notice period--can be obtained to cover the time until
a hearing for a short or regular variance can be held. An interim
variance may be requested at the same time either a short or regular variance is
requested. The Hearing Board is required by law to find good cause to
grant an interim variance. That means there has to be a good reason why the
company could not have filed its petition in time for the hearing to be
announced to the public.
Short
Companies that can comply with AQMD rules within 90 days or less should
request a short variance. A short variance requires a 10-day posted
notice, plus five days processing time before the request can be heard.
Regular
Companies that need more than 90 days to comply with AQMD rules should
request a regular variance. The variance period is usually one year or
less, but can be longer if a specific compliance schedule is set. An application
for a regular variance must be filed at least 45 days before the request can be
heard.
How to request a variance or other Hearing Board action
(Instructions) Return to Top
To ask for a variance, appeal a permit, or appeal an emission reduction
credit denial, call (909) 396-2500. The Clerk of the Board's Office will mail
you the packet of information you need to file your petition. Or you can pick up
a packet from the Clerk of the Board's office or the AQMD South Bay Field Office
(1500 W. Carson Street; Long Beach, CA Phone: 310/233-7000); or access the
petition
forms from the Internet.
After you return the completed petition form and filing fee,
you'll be contacted by a Clerk of the Board representative to arrange a date and
time for your hearing. The Hearing Board meets at AQMD headquarters in Diamond
Bar. You cannot file for a hearing over the Internet or by
facsimile.
The Hearing Board is required by law to give public notice of hearings.
You'll receive a copy of the notice.
AQMD Rule 303 (current fees) provides a detailed description of all Hearing
Board fees. At the time you apply, you will be charged a "filing fee."
Small
businesses are eligible for a discount on some fees.
If public notice must be printed in a newspaper (regular variance and
appeals), you will also be charged a "publication fee."
If your variance is granted, there will be an "excess
emission fee" based on the weight and opacity (smokiness) of the excess
emissions discharged during the period the variance is in effect. An AQMD
staff person is available to help you determine the amount of excess emissions
to be billed. For assistance, call the Hearing Board Liaison at (909) 396-2000.
What happens at a variance hearing? Return to Top
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When you come to your hearing, be prepared. Bring all relevant information to
form the basis of the six findings listed earlier. Also, bring:
- Names and telephone numbers of companies you've contacted to help you come
into compliance;
- Dates by which your equipment can be installed; and
- Your plan for reducing emissions until then.
You may choose to seek the services of an attorney in presenting your case.
If you plan to represent yourself, be sure to know what rules you are violating,
your excess emissions, and how and when you plan to come into compliance. It is
helpful to bring along any technical experts who are assisting you in resolving
your problem.
Remember to bring copies of your current permits. The Hearing Board needs 8
copies of any and all documents presented.
Variance hearings are like courtroom proceedings. Both the variance
petitioner and the SCAQMD, represented by the District Prosecutor's Office (909)
396-3400, present evidence through witnesses who are placed under oath.
Witnesses may be cross-examined by the opposing side and questioned by Hearing
Board members.
Among other issues, the Hearing Board attempts to discover why and how the
rule is being violated, whether the violation could have been prevented, what is
being done to correct the violation, when corrections will be completed, what
will happen to the business if it is forced to shut down, how the violation
affects the public, and what efforts can be made to reduce excess emissions to
the maximum extent feasible.
AQMD may argue against a variance or suggest certain limiting conditions. The
public is invited to present any information important to the case. Board
members then close the hearing and discuss the case among themselves before
reaching a decision.
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