VARIANCES
The California Health and Safety Code mandates that all air districts have a Hearing Board that serves as an independent quasi-judicial body. The Hearing Board is separate from MBARD and serves as a mediator between the MBARD, industry, and the public.
Under certain circumstances, a company can obtain a variance for an operation that will be in violation of MBARD rules by approval from the Hearing Board. A variance is an administrative exception to a law allowing a company to continue operating in violation of MBARD rules without penalty while it takes appropriate steps to meet air pollution control requirements.
In order to obtain a variance, an application form must be filled out completely and returned to the Clerk of Hearing Board with the appropriate application fee. Once the completed form and applicable fee are submitted, the application will be set for a hearing before the Hearing Board.
A hearing before the Hearing Board provides an opportunity for both the applicant and MBARD staff to present facts and arguments. The Hearing Board then decides whether a variance will be issued, the length of the variance and what conditions to include. Most variances have reporting requirements and some require the payment of additional excess emissions fees. It is the responsibility of the applicant to be sure that these requirements are followed. After a variance is granted MBARD staff will monitor the applicant’s compliance with the variance order.
For additional information, please also see the California Air Resources Board Variance Oversight Program page.
Please submit applications for a variance to:
Sirie Thongchua, Executive Assistant
sirie@mbard.org; 831.647.9411
24580 Silver Cloud Court
Monterey, CA 93940
Hearing Board Application Fee's
Note: Fees due upon submittal of Application. Excess Emission and Excess Visible fees will be calculated during the Variance Process.
| Type of Variance | Variance Length | Fee |
|---|---|---|
| Regular | Length exceeds 90 days | $1,147.00 |
| Short Term | Length does not exceeds 90 days | $803.00 |
| Interim | Length does not exceed 90 days. (must be applied along with either a regular or short) | $803.00 |
| Emergency | Length does not exceed 30 days | $575.00 |
| Additional Variance Hearings | Used when Petitioner may need to apply for a rehearing | $575.00 |
| Modifying a Variance | Used when a parameter may need to be changed by Petitioner | $575.00 |
Types of Variances:
The following table describes the 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 MBARDs rules, an emergency variance is an option for events which can be resolved in less than 30 days. The Hearing Board may grant an emergency variance, without public notice of hearing. |
| Interim | An interim variance, which only requires a "reasonable notice" period, can be obtained to cover the time until a hearing for a short or regular variance can be held. An interim variance must be requested at the same time as a short or regular variance is requested. The Hearing Board is required by law to find good cause to grant an interim variance. There has to be good reason why the business could not have filed its petition in time for the hearing to be announced to public. |
| Short | Companies that can comply with MBARDs rules within 90 days or less should request a short variance. A short variance application requires a 10 day posted notice. |
| Regular | Companies that need more than 90 days to comply with MBARDs 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. A regular variance requires a 30 day public notice. |
Findings
To grant a variance, the Hearing Board must make the following six findings:
- The petitioner for variance is, or will be, in violation of an MBARD 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 MBARD.
How to Prepare
A petitioner may represent themself, 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. You may wish to have a technical expert to support your position.
Variance hearings are similar to courtroom proceedings. Both the variance petitioner, counsel and MBARD staff, present evidence under oath, via documents, exhibits, and witnesses. Witnesses may be cross-examined by the opposing side and questioned by Hearing Board members.
The Hearing Board will attempt 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.
The public is invited to present any information important to the case. Hearing Board members then close the hearing and discuss the case among themselves before reaching a decision based upon the six findings above.