Variance
Hearing Board Members
What Is A Variance?
If a facility is out of compliance with a Bay Area Air Quality Management District regulation due to extenuating circumstances, or the facility knows it will be out of compliance in the future, a variance from the applicable regulation may be requested.
A variance is an administrative order granting temporary relief from the provisions of a District regulation, including permit conditions. A variance allows a facility to operate while it takes steps to come into compliance with the regulation in question. Applications for variances from air quality regulations are heard by the District's Hearing Board.
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 Board of Directors enacts regulations that apply to all facilities in a given business, the Hearing Board is a quasi-judicial body that rules on particular cases that affect only individual facilities. In a variance case, the Hearing Board will hear all relevant information concerning the subject of the variance application, weigh the evidence and make a decision on whether a variance 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's staff. The Board also hears staff requests for permit revocations and abatement orders.
How Do You Apply For A Variance?
To apply for a variance, either call the Office of the Clerk of the Boards at (415) 749-5073 or stop by the Clerk's Office on the 7th floor at 939 Ellis Street in San Francisco. Information packages containing variance application forms and a copy of the Hearing Board's rules are available. Or download the Application Form.
When filing an application for a variance, a fee will be charged to help offset the costs of Hearing Board operations. See Regulation 3, Schedule A (153 k PDF, 44 pgs) for current filing fees.
After submitting a completed variance application, you will be advised by the Clerk's office of the time and date of your hearing.
Prior to a hearing for a variance requesting relief of 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.
Which Variance Is Right For You?
If your violation occurs without warning, you can request an emergency variance. Sudden equipment breakdown, a power failure or an accidental fire may be grounds for an emergency variance. This type of variance cannot be granted for a period lasting more than 30 days.
If you can comply with the District's rules within 90 days or less, you should request a short-term variance.
If you need more than 90 days to comply, you should request a regular variance. Such a variance may extend beyond a year if it includes a detailed schedule under which the facility will come into final compliance.
If you manufacture a product such as a specialized coating, which can not meet the District's requirements, a product variance is necessary for the sale, supply, distribution, or use of the product. These variances are granted to the manufacturer rather than the end user.
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 can be held. You should request the interim variance at the same time you file for a regular variance.
What Are The Grounds For Granting A Variance?
Pursuant to Health & Safety Code Section 42352, the Hearing Board considers the following points:
- Present or future violation of District regulations.
- Whether conditions causing the violation were beyond your reasonable control.
- 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 reduce emissions to the maximum extent possible.
- You will monitor/quantity the emissions and report them to the District.
- 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.
What Happens At A Hearing?
Variance hearings are similar to courtroom proceedings. Both sides present evidence through witnesses who are placed under oath. Witnesses may be cross-examined by the opposing side and questioned by Hearing Board members. Though not required, persons requesting a variance are usually represented by an attorney.
An attempt is made to determine 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 present information pertinent to the case and may suggest certain limiting conditions. The public may also present information important to the case.
How Should You Prepare For A Hearing?
You may wish to retain an attorney to present your case. 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 violated, what your excess emissions are, 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.
You should also bring copies of your current permits to operate with you. The Hearing Board requires an original and eight copies of any documents submitted to them.