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 VCAPCD, industry and the public.

• An emergency variance is used when there is a breakdown and the problem can be resolved in fewer 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.
• An interim variance is 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 its case to the full Hearing Board and has to address "good cause" in the 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.
• A short variance is used when a company needs fewer than 90 days to correct a violation. Notice of the hearing must be given to the district, CARB, EPA, the petitioner and Hearing Board members 10 days prior to the hearing. The company presents its case in a hearing with the full Hearing Board. The company must address the findings the board must make to grant the variance. A short variance can be granted for up to 90 days.
• A regular variance is used when a company needs more than 90 days to correct a violation. A public notice of the hearing must be published in a daily newspaper at least 30 days prior. The company presents its case to the full Hearing Board. The company must address the required findings and agree to a schedule of "Increments of Progress." A regular variance can be granted for up to one year.
• A product variance is 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 hearing notice requirements are the same as short, interim and regular variances. The company presents its case to the full Hearing Board. A product variance is limited to a maximum of two years.

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 hearing notice to be published in a daily newspaper at least 10 days prior. Cases are presented to the full Hearing Board.

• The petitioner for the 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.
• A nuisance as specified in Rule 51 will not occur.
• Continued operation is not likely to create an acute threat or hazard to public health or safety.

• Shut-down the non-compliant equipment until it is repaired or replaced.
• Rent replacement equipment until the non-compliant equipment is repaired or replaced.
• Contact the VCAPCD Engineering Division regarding possible permit modification to avoid non-compliance.

• Know if the equipment or process is already in violation. If so, know whether a Breakdown has been called in to the VCAPCD and/or received a Notice of Violation from the VCAPCD.
• Have a complete description of the equipment involved, and the reason the equipment is in non-compliance.
• Have information to support an assertion that equipment cannot be shut-down until the issue is resolved.
• Know the timeline for how long it will take to repair or replace the non-compliant equipment.

Petitioners may represent themselves or be represented by counsel. For variances:

• Know the VCAPCD rules being violated.
• Provide a complete description of the equipment involved.
• Provide a complete description of the reason the equipment is non-compliance.
• Know what the excess emissions will be.
• Know how and when complete compliance will be achieved.

For appeals, petitioners must demonstrate that the VCAPCD's decision was in error. Having a technical expert can help support a position.

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

Fees are charged for each petition that is filled. The fees cover the costs for district staff and the Hearing Board members and clerk. Contact the VCAPCD Hearing Board coordinator for the current fee schedule.

• Variance Fact Sheet
• California Air Resources Board Variance Oversight Program webpage
• If you have questions on the variance or Hearing Board process or need help preparing your petition, contact hearingboard@vcapcd.org or 805-303-3700.
• If you need help understanding how a rule applies to your situation, contact the Engineering Division at 805-303-3688. You can make an appointment to review equipment control requirements.