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California Air Pollution Control Laws

HEALTH AND SAFETY CODE

Division 26 Air Resources

Part 4 Nonvehicular Air Pollution Control

Chapter 4 Enforcement

§ 42352. Findings prerequisite to grant of variance

(a) No variance shall be granted unless the hearing board makes all of the following findings:

(1) That the petitioner for a variance is, or will be, in violation of Section 41701 or of any rule, regulation, or order of the district.

(2) That, due to conditions beyond the reasonable control of the petitioner, requiring compliance would result in either (A) an arbitrary or unreasonable taking of property, or (B) the practical closing and elimination of a lawful business. In making those findings where the petitioner is a public agency, the hearing board shall consider whether or not requiring immediate compliance would impose an unreasonable burden upon an essential public service. For purposes of this paragraph, “essential public service” means a prison, detention facility, police or firefighting facility, school, health care facility, landfill gas control or processing facility, sewage treatment works, or water delivery operation, if owned and operated by a public agency.

(3) That the closing or taking would be without a corresponding benefit in reducing air contaminants.

(4) That the applicant for the variance has given consideration to curtailing operations of the source in lieu of obtaining a variance.

(5) During the period the variance is in effect, that the applicant will reduce excess emissions to the maximum extent feasible.

(6) During the period the variance is in effect, that the applicant will monitor or otherwise quantify emission levels from the source, if requested to do so by the district, and report these emission levels to the district pursuant to a schedule established by the district.

(b) As used in this section, “public agency” means any state agency, board, or commission, any county, city and county, city, regional agency, public district, or other political subdivision.

Added Stats 1975 ch 957 § 12. Amended Stats 1976 ch 1063 § 42, effective September 21, 1976; Stats 1988 ch 1568 § 30; Stats 1992 ch 1025 § 1 (SB 1728).

Amendments:

1976 Amendment: Substituted “Section 41701” for “a provision of Article 1 (commencing with Section 41700) of Chapter 3” in subd (a).

1988 Amendment: (1) Substituted “the” for “such” after “That” in subd (c); and (2) added subds (d)-(f).

1992 Amendment: (1) Added subdivision designation (a); (2) redesignated former subds (a)-(f) to be subds (1)-(6); (3) substituted “(A)” for “(1)” and “(B)” for “(2)” in subd (2)(a); and (4) added subd (b).

Editor's Notes- For citation of act and legislative findings, declarations and intent, see 1988 Note following H & S C § 40910.

Historical Derivation: (a) Former §§ 24296.5, 24365.5, as added by Stats 1972 ch 975 §§ 5, 12, amended by Stats 1974 ch 172 §§ 5, 15.

(b) Former § 39475, as added by Stats 1972 ch 975 § 20, amended by Stats 1974 ch 172 § 26.

(c) Original § 24296, as added by Stats 1947 ch 632 § 1, amended by Stats 1970 ch 1552 § 9.

(d) Original § 39475, as added by Stats 1967 ch 1545 § 5, amended by Stats 1970 ch 1552 § 35.

Cross References: Air contaminant: H & S C § 39013.

Prohibited emissions: H & S C § 41701.

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