Hearing Board Process

Hearing Board (main page)

Why do we have a Hearing Board?

Appeals

The Findings

How to prepare?

What happens after the hearing?

Hearing Board Fees

Need more information?

 

The Air Pollution Control District Hearing Board was established by state law to grant variances from district rules, adjudicate certain types of disputes between the APCD and a source, allow citizen appeals, and issue abatement orders. The Hearing Board has served an important function that often goes unheard or unseen. The following sections address the more common questions about the Hearing Board. For additional information, the California Air Resources Board maintains a website for their Variance Oversight Program.

 

Why do we have a Hearing Board?

The California Health and Safety Code mandates that all air pollution control districts have a Hearing Board that serves as an independent quasi-judicial body. The Hearing Board is separate from the District and serves as a mediator between the APCD, industry, and the public.

 

Emergency Variance: used when there is a breakdown and the problem can be resolved in less than 30 days. An emergency variance requires "good cause" which includes, but is not limited to a breakdown. A breakdown is defined as an "unforeseeable failure or malfunction". An emergency variance hearing can be conducted by telephone with a company representative and one Hearing Board Member.

 

Interim Variance: used when a company needs to keep operating until a regular variance hearing can be held. Reasonable notice of the hearing must be given to the District, Petitioner, and Hearing Board members. The company presents their case to the full Hearing Board and has to address "good cause" in their request. An Interim Variance can be granted for up to 90 days and must be followed by a regular variance. A regular variance petition must be filed with an interim variance petition.

 

Short Variance: used when a company needs less than 90 days to correct a violation. Notice of the hearing must be given 10 days prior to the hearing to the District, ARB, EPA, Petitioner, and Hearing Board members. The company presents their case in a hearing with the full Hearing Board. The company must address the "six findings" listed below. A short Variance can be granted for up to 90 days.

 

Regular Variance: used when a company needs more than 90 days to correct a violation. A public notice of hearing must be published in a daily newspaper at least 30 days prior to the hearing. The company presents their case to the full Hearing Board. The company must address the "six findings" listed below and agree to a schedule of "Increments of Progress". A Regular Variance can be granted for up to one year.

 

You can download the petitions forms for Emergency; Interim, Short, and Regular Variances.

 

Product Variance: used by manufacturers of non-compliant products. A manufacturer obtains a variance so non-complaint products can be sold, distributed, and used by customers until the products become compliant. The public notice of hearing requirements are the same as Short, Interim, or Regular variances. The company presents their case to the full Hearing Board. A Product Variance is limited to a maximum of two years.

 

You can download the petition form for a Product Variance.

 

Appeals

Permit holders may file a petition to appeal the denial or suspension of a permit. Permit holders and certain members of the public may appeal the conditional granting of a permit. Appeals require a public notice of hearing to be published in a daily newspaper at least 10 days prior to the hearing. Cases are presented to the full Hearing Board.

 

The Findings

No variance shall be granted unless the Hearing Board makes the following findings:

 

  • The petitioner for variance is, or will be, in violation of a District rule.
  • Due to conditions beyond the reasonable control of the petitioner, requiring compliance would result in either (1) an arbitrary or unreasonable taking of property, or (2) the practical closing and elimination of a lawful business.
  • Closing the business or taking the property would be without a corresponding benefit in reducing air contaminants.
  • The applicant has given consideration to curtailing operations in lieu of obtaining a variance.
  • The applicant will reduce excess emissions to the maximum extent feasible.
  • The applicant will monitor or quantify emission levels from the source and report these emission levels to the District.
  • That a nuisance as specified in Rule 51 will not occur.
  • That continued operation is not likely to create an acute threat or hazard to public health or safety.

 

How to prepare

A petitioner may represent himself, or be represented by counsel. For variances, know the rules being violated, what the excess emissions will be, and how and when complete compliance will be achieved. For the appeals, you must demonstrate that the APCD's decision was in error. You may wish to have a technical expert to support your position.
 

What happens after the hearing?

Because a company has to be back in compliance by the end of the variance, there are follow-up inspections to make sure a company stays on schedule. APCD reports each company's progress to the Air Resources Board.

 

Hearing Board Fees

Fees are charged for each petition that is filled. The fees cover the costs for Hearing Board members, the Hearing Board Clerk, and District staff. Contact the APCD Hearing Board coordinator for the current fee schedule.

 

Need more information?

The Hearing Board's coordination is under the Compliance Division. E-mail or call Michelle Wood at (805) 303-3703 to request forms, file a petition, or to obtain assistance preparing your petition. Variance petition forms are also available at the District office.

 

To view or download a Variance Fact Sheet, please click here.

 

Call the APCD Engineering Division at (805) 303-3684 if you need help understanding how a rule applies to your situation. You can make an appointment with an engineer to review equipment control requirements.