What Is A Variance?
A variance is an administrative order granting
temporary relief from the provisions of a San Joaquin Valley Unified Air
Pollution Control District (District) rule or regulation. A variance allows you to operate while
you take steps to come into compliance with the regulation in question.
The Districts Hearing
Board hears petitions for variances from air quality regulations.
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What Is The Hearing Board?
The Hearing Board is established by State law and
consists of five members: an attorney, a professional engineer, a medical doctor
and two members of the public.
While the Governing Board enacts regulations that
apply to all persons in a given business, the Hearing Board acts more like a
court which rules on particular cases which only affect individual facilities. In a variance case, the Hearing Board
will hear all relevant information concerning the subject of the variance
petition, will weigh the evidence and will make a decision on whether a
variance from the regulation in question should be granted under the
circumstances of the case.
In addition to hearing variance requests, the
Hearing Board is authorized to hear appeals by permit applicants and by
interested third parties concerning the issuance or denial of permits by the
District staff. The Board also
hears staff requests for permit revocation and abatement orders.
The Hearing Board meets once a month in each region
per the following schedule:
- Northern Region - the first Wednesday of the month
- Southern Region - the second Wednesday of the month
- Central Region - the third
Wednesday of the month.
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How Do You Apply For A Variance?
To apply for a variance, call the Compliance staff
in the regional office in your area. In
the Northern Region call (209) 557-6400, in the Central Region call (559)
230-5950, and in the Southern Region call (661) 392-5500. The variance petition will either be
mailed or faxed to you upon request.
petitions
are updated periodically, so be sure you have the most recent version.
You will be charged a variance-filing fee that helps
to offset the costs of Hearing Board operations.
Rule 3030 – Hearing Board Fees
Return the completed
variance petition
to the
regional office 2-5 weeks prior to the hearing date to allow sufficient time for
processing and noticing. Supporting
documentation, such as copies of relevant Permits to Operate, purchase orders,
test results and correspondence should accompany the petition. The
burden of proof is on the petitioner. A
copy of the District Staff Report and Agenda will be sent to you the week prior
to the hearing.
Prior to a hearing for a variance requesting relief
for over 90 days, the Hearing Board is required by law to give 30 days public
notice of the hearing. In cases
involving variance requests for less than 90 days, only 10 days public notice is
required. A copy will be sent to
you upon issuance.
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Which Variance Is Right For You?
If your violation occurs without warning, you can
request an emergency variance. Sudden equipment breakdown and other
unforeseen circumstances beyond the reasonable control of the petitioner may be
grounds for an emergency variance. This
type of variance cannot be granted for more than 30 days.
If you can comply with District rules within 90 days
or less, you should request a short-term
variance.
If you need more than 90 days to comply with
District rules, you should request a regular
variance. Such a variance may
extend beyond a year if it includes a specific detailed schedule under which you
will come into final compliance.
If you require immediate protection prior to the
noticed hearing on a regular variance (other than for breakdowns), request an interim variance to cover the time until
a noticed hearing for the regular variance can be held. You should request the interim variance
at the same time that you file for a regular variance. You will appear before the Hearing Board once for the interim
variance, which can be granted for good cause, and once, usually the following
month, for the regular variance.
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What Are The Grounds For Granting A Variance?
In determining the outcome of a case, the Hearing
Board considers the law, the rule or regulation that has been violated, the
severity of the violations, technical problems, and the advantages and
disadvantages to the public and the business involved should a variance be
granted.
To grant a variance, the Hearing Board must find
that:
-
You are or will be in violation of a District
rule or regulation
-
Conditions causing the violation were beyond
your reasonable control and shutting down your equipment or business would
not be reasonable under the circumstances
-
The reduction in air pollution resulting from a
shutdown would not justify closing the facility
-
You will take all reasonable steps to minimize
excess emissions
-
You will monitor emissions and calculate excess
emissions resulting from the variance
Variances cannot be granted for violations of the
State's public nuisance law. This
law prohibits emissions that would cause odor or other nuisances in the
community, threats to public health or damage to property.
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What Happens At A Hearing?
Variance hearings are formal proceedings. All those who testify are placed under
oath. District staff presents a
summary of the case and the District's position, and you also present testimony. The Hearing Board questions District
staff and you.
An attempt is made to uncover why and how the rule
is being violated, whether the violation could have been prevented, what is
being done to correct the violation, when correction will be completed, what
will happen to the business if it is forced to shut down, and how the violation
affects the public.
District staff may recommend against the granting of
a variance or suggest certain limiting conditions. The public may present any information important to the case.
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How Should You Prepare For A Hearing?
If you plan to represent yourself, be sure to
prepare for the hearing. You should
be fully aware of the rules or regulations which have been or will be violated,
what your excess emissions are, why compliance is beyond your reasonable
control, what steps are being taken to come into compliance, and how and when
you plan to come into compliance.
If you have sought the help of technical experts to
resolve your problem, they should accompany you to the hearing. It is not ordinarily necessary for an
attorney to be present, however, that is your option.
If plan to bring additional information or
documentation to the hearing, you should bring ten copies to the hearing.
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For Further Help
If you need help with the technical aspects of the
rule or regulation affecting you or have questions regarding the variance
petition or process, you may call the
Compliance
Department.
If you would like to make an appointment with a
District engineer to discuss specific equipment requirements, please call the Permit
Services Division.
California
Health & Safety Code Sections 42350 through 42364 set forth the California
State laws dealing with variances and should be reviewed before filing an
petition.
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