MBUAPCD R6ART2 PROCEDURES FOR HEARING BOARD ADJUCUATIONS
LAST REVISED 12/17/86

2.1 Form of Papers.

Papers filed with the Hearing Board shall be typewritten or printed upon paper 8 1/2 x 11 inches in size and the impression shall be on one side of the paper only and double-spaced. The heading for variance applications shall be as follows:

2.2 Contents of Application for Variance.

a. An application to the Hearing Board for a variance shall be signed by the applicant, or by his authorized agent, or by the representative of a class who has submitted a class action application, and shall state the grounds for the application and the specific section(s) of the regulations of the District, as well as the specific dates, for which a variance is requested.



b. The applicant shall set forth a concise statement of the ultimate facts constituting the reasons for granting a variance. This statement must disclose that the conditions required by Health and Safety Code Section 42352 exist.



If a class action is contended, supporting facts therefor shall be alleged.



c. The application should state, to the extent possible, the number of emission points, the different nature, if any, of emission points and should include measured values or estimates of the quantity and nature of emissions and the degree of violation for the source(s) in question. It shall close with a prayer for a variance, which shall set forth the conditions or terms of the desired variance.



The application shall contain a description of the property affected which shall be sufficient for its identification and shall also contain the name of the owner thereof and the nature of the title or interest of the applicant.



A map showing the location of the subject property, photographs of the equipment in question, and a line diagram of the process, where applicable, shall be included with the application.



The application shall include a statement of whether or not the applicant intends to file additional written material.



Such additional material shall be filed no less than 10 days prior to a hearing on the matter. The District and any intervenor may file a response to any additional material not less than five days prior to hearing.

d. The application for variance shall contain a statement of the "increments of progress" proposed by applicant and shall include at least the following:



1. The date by which contracts for emission control systems or process modifications will be awarded or the date by which orders will be issued for the purchase of component parts to accomplish emission control or process modification;
   
   
2. The date of initiation of onsite construction or installation or emission control equipment or process change;
   
   
3. The date by which onsite construction or installation of emission control equipment or process modification is to be completed;
   
   
4. Such additional increments of progress as may be necessary or appropriate to permit close and effective supervision of progress toward timely compliance; and
   
   
5. The date by which final compliance is to be achieved.
   
   

e. The application for variance shall include a statement of the applicant's evaluation as to whether the granting of the requested variance will adversely affect the attainment and maintenance of pertinent national or State ambient air quality standards.



f. The Hearing Board may adopt a suggested form of Application for Variance and/or Interim Variance.

2.3 Contents of Other Applications.

All other applications for Hearing Board relief shall conform to the provisions of Sections 2.1 and 2.2 of this Article 2 to the extent that such sections are applicable to the subject of such applications, and shall include the appropriate filing fee pursuant to Appendix A, as may be fixed from time to time by the District Board.

2.4 Emergency Variances.

a. The procedures set forth in this Section are to be used in applying for an Emergency Variance when a breakdown condition as defined in Rule 214 exceeds the end of the production run or 24 hours, whichever is sooner; when vapor recovery system components are marked "Out of Order" pursuant to Health and Safety Code Section 41960.2; or when any other emergency, as determined by the Hearing Board, occurs under Health and Safety Code Sections 42359 and 42359.5.



b. An applicant for an Emergency Variance under this Section is required to pay the appropriate filing fee, whether or not the requested variance relief is granted.



c. An Emergency Variance may be granted without notice and hearing or, at the discretion of the Hearing Board, a hearing may be held. An Emergency Variance shall not remain in effect longer than thirty (30) days.



d. An Applicant may file for an Emergency Variance by oral notification to the Clerk of the Hearing Board. This initial filing does not in itself constitute a Variance and provides no assurance of protection from penalty action. However, if a Variance is subsequently granted, it may become effective as early as the date and time of the initial oral filing.



1. At the time of making the request for an Emergency Variance, the Applicant shall explain in detail the grounds for the request, including such information as the foreseeability of the cause of the emergency and whether the Applicant has used good maintenance practices.
   
   
2. Immediately after receiving the request, the Clerk of the Hearing Board shall notify the Air Pollution Control Officer of the request. The Air Pollution Control Officer shall promptly respond to the Clerk, stating his recommendation on the request, and specifically including his opinion as to whether the Applicant's violations are due to conditions beyond its reasonable control. Alternatively, the Air Pollution Control Officer may convey his recommendation directly to the Chairman or his designee.
   
   
3. The Clerk of the Hearing Board thereafter shall contact either the chairman or his designee and orally convey the request and the Air Pollution Control Officer's recommendation.
   
   
4. The Hearing Board member so contacted shall grant or deny the request at that time, shall obtain further information orally or in writing form the Applicant or the Air Pollution Control Officer before acting on the request, or shall defer the matter for later consideration by the Hearing Board, which shall be set to be heard within seven (7) days.
   
   
5. The Applicant shall be immediately notified orally by the Clerk of the decision on the request for Emergency Variance. If an Emergency Variance is granted, the Clerk shall orally so notify all other Hearing Board members who can be reached, as soon as possible but not more than two working days from the decision. If, within this 48 hour period, any Hearing Board member notifies the Clerk that he or she wishes to convene a hearing upon the Emergency Variance so granted, the Clerk, after consultation with the Chairman, shall schedule a hearing within seven days and shall notify the Hearing Board Members, the Applicant, and the District. The purpose of such hearing shall be to review the issuance of the Emergency Variance and to consider whether it should remain in effect as ordered, be modified, or be terminated. Any such modification or termination, however, shall not be retroactive.
   
   
6. After an Emergency Variance is granted, denied, or set for hearing pursuant to subsection 4 above, a written order shall be issued by the Hearing Board member so acting, and shall be served by the Clerk upon the Applicant and the District. Any subsequent orders by the Hearing Board shall likewise be issued in writing and served upon the parties.
   
   
7. Within four working days of the initial request for Emergency Variance the Applicant shall submit the filing fee specified in Appendix A to the Clerk. Any Emergency Variance issued prior to payment of the filing fee is contingent upon fee payment within four working days of the initial request, and failure to so tender the fee shall render the issuance of the Emergency Variance void ab initio and without any legal effect.
   
   

2.5 Application for Intervention.

a. Any person who claims that he has a special interest relating to a pending variance action, may file a written application for intervention in such variance proceeding. The application shall be filed with the Clerk not later than five days before the hearing of the matter, which hearing may be continued to facilitate action on the intervention request, and shall be served by mail or in person upon the parties to the proceeding, and shall set forth the grounds and purpose of such intervention. The Hearing Board shall allow the parties to the action an opportunity to respond in writing to the application, may convene a prehearing conference, and shall rule on any such application prior to commencement of hearings.



b. If the person seeking intervention claims a special interest relating to the pending variance action, and that person is so situated that the disposition of the action may, as a practical matter, impair or impede that person's ability to protect that interest, the Hearing Board may, upon timely application, permit that person to intervene. In exercising its discretion as to whether to grant or deny such an application, the Hearing Board shall consider whether intervention would unduly delay or prejudice the adjudication of the rights of the parties.

c. Intervention shall not be permitted in any variance action which is or becomes consolidated with an abatement action relating to the same subject.



d. Any person permitted to intervene in a proceeding shall have all the rights and responsibilities of any party to a variance action, and shall be referred to as "intervenor".

2.6 Verification.

Unless the state, or a county, city, or district, or an officer of such in his official capacity is an applicant, the application shall be verified. The form of verification, executed within this State, may be substantially the following form:

I, the undersigned, do hereby declare under penalty of perjury that I have read the foregoing document; that I know its contents, and that it is true.



Dated at ____________________, on _____________________



Signature _____________________________________________

2.7 Filing Fees.

Any application shall be accompanied by the filing fee as may be fixed from time to time by the District Board and set forth in Appendix A hereto.

2.8 Excess Emission Fees.

The applicant to whom a variance is granted shall pay an excess emission fee as may be fixed from time to time by the District Board and set forth in Appendix B hereto.

2.9 Response to Applications.

The Hearing Board may require the Air Pollution Control Officer to file a response to any or all applications in such a manner as the Hearing Board may from time to time direct. Any such response shall be served on the applicant and any other parties.