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 District’s Hearing Board hears petitions for variances from air quality regulations.

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.

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.

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.

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.

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.

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.

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.