MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT


REGULATION VI -- HEARING BOARD RULES

(Adopted December 12, 1986, Effective December 17, 1986) (Amended June 20, 2001)

REGARDING REGULATION VI


Prior to December 17, 1986, Regulation VI consisted of Rules 600 through 617 which set forth procedures for Hearing Board Adjudications. Those rules have been superseded by a new REGULATION VI (HEARING BOARD RULES), which was adopted by the District Hearing Board on December 12, 1986, and became effective December 17, 1986.

On December 17, 1986, the District Board provided for the replacement of the old Rules 600 through 617 with the new Regulation VI by repealing the prior Regulation VI (Procedures Before the Hearing Board) in its entirety. The Board also adopted Appendices A & B to the new REGULATION VI (HEARING BOARD RULES).

The result of this coordinated action is that REGULATION VI (HEARING BOARD RULES) now contains the whole body of Hearing Board procedural rules, including Appendices A & B, which are fee provisions as adopted by the District Board. REGULATION VI

ARTICLE 1. General


1.1 Location of Office.

The office of the Hearing Board of the Monterey Bay Unified Air Pollution Control District is located at 24580 Silver Cloud Court, Monterey, CA 93940.

1.2 Tenses, Gender and Number.

For the purpose of these Rules, the present tense includes the past and future tenses, and the future the present; each gender includes the two other genders; and the singular includes the plural and the plural the singular.

1.3 Definitions.

For the purpose of these Rules:

a. "Hearing Board" means the Hearing Board of the Monterey Bay Unified Air Pollution Control District, composed of five regular members as set forth in Health and Safety Code section 40801, each appointed by the District Board for three year terms.

b. "District" means the Monterey Bay Unified Air Pollution Control District.

c. "Air Pollution Control Officer" means the Air Pollution Control Officer of the Monterey Bay Unified Air Pollution Control District.

d. "Clerk" means the Clerk of the Hearing Board of the Monterey Bay Unified Air Pollution Control District.

e. Unless the context otherwise requires, the words "applicant," "respondent," or "party" includes an authorized agent of such person.

f. "Class Action" means a variance or permit appeal proceeding brought by one or more persons, firms, or corporations on behalf of themselves and others, all of whom have an ascertainable common interest in the matter, and all of whom would be affected similarly by any order of the Hearing Board, and in which there is a question of a common interest to such persons and in which the parties are numerous and it is impracticable to bring them all before the Hearing Board.

g. "Party" includes the District, the applicant, the respondent, and any intervener allowed pursuant to Section 2.5.

h. "Records of the Hearing Board" include the pleadings, all notices and orders issued by the Hearing Board, any proposed decision by the Hearing Board, the final decision, a transcript of all proceedings, the exhibits admitted or excluded, all written evidence, and any correspondence in the case to or from the Hearing Board.

i. "Appeared." A party has appeared in an action before the Hearing Board when he has filed an application or petition of any kind or has filed a request for a hearing or a notice of defense, or appeared in an accusation proceeding.

j. "Interim Variance" means a temporary variance which may be granted pending the decision of the Hearing Board on the full variance application. An interim variance may be granted by the Hearing Board only upon a showing of good cause under Section 42351 of the Health and Safety Code and may not extend beyond the date of the decision of the Hearing Board on the full variance application or 90 days from the date of issuance of the interim variance, whichever occurs first. An interim variance may not be granted if in the judgement of the Hearing Board it is being sought to avoid the notice and hearing requirements set forth in Health and Safety Code Section 40826.

k. "Short Term Variance" means a variance or series of variances totaling not more than 90 days.

l. "Hearing Board Counsel" is the attorney retained by the Hearing Board to advise the Board on legal matters of substance and procedure.

m. "District Counsel" is the attorney for the District, retained by the District to represent the District in Hearing Board proceedings.


1.4 Conformance with State Law.

In accordance with Health and Safety Code Section 40807, these Rules shall be interpreted to be consistent with the rules of administrative adjudication by state agencies in Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2, of the Government Code of the State of California, as written or as amended, after the effective date of these Rules, as necessary to conform, insofar as practicable, to said provisions of the Government Code.

ARTICLE 2. Variance and Other Applications

2.1 Form of Papers.

Papers filed with the Hearing Board shall be typewritten or printed upon paper 8 ½ 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:

BEFORE THE HEARING BOARD
OF THE
MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT
STATE OF CALIFORNIA

In the Matter of the )   Docket No.
Application of )    
  )   APPLICATION
(name) )   FOR VARIANCE
_____________________ )    


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 intervener 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 District Counsel and 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 the Chair and orally convey the request and the Air Pollution Control Officer's recommendation. Should the chair not be available, the Clerk shall attempt to contact the Vice-Chair. Should the Vice-Chair be unavailable, the Clerk shall attempt to contact anyother Hearing Board member.

4. The Hearing Board member so contacted shall grant or deny the request at that time, shall obtain further information orally or in writing from 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 "intervener".


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.


ARTICLE 3. Accusations

3.1 Form of Papers.

Papers filed with the Hearing Board shall be typewritten or printed upon paper 8 ½ x 11 inches in size and the impression shall be on one side of the paper only and double-spaced. The heading shall be as follows:

BEFORE THE HEARING BOARD
OF THE
MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT
STATE OF CALIFORNIA

    DOCKET NO. ___________
(Name) )  
Complainant, ) ACCUSATION OF VIOLATION
vs. ) OF (specify)
(Name) ) AND REQUEST FOR
Respondent. ) (specify)
___________________   __________________________

3.2 Contents of Accusation.

A hearing on a complaint by the Air Pollution Control Officer or by the Hearing Board or by the District Board, filed pursuant to Health and Safety Code Sections 42307, 42450, 42451, or other applicable provisions, shall be initiated by filing an accusation. The accusation shall be a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged to the end that the respondent will be able to prepare his defense. It shall specify the statutes and rules which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such statutes and rules. The allegations of the accusation may be on information and belief

3.3 Service of Accusation: Form, Manner and Proof.

a. Upon the filing of the accusation the District shall serve a copy thereof on the respondent as provided in subsection (c). The District may include with the accusation any information which it deems appropriate, but it shall include a post card or other form entitled Notice of Defense which, when signed by or on behalf of the respondent and returned to the Hearing Board, will acknowledge service of the accusation and constitute a Notice of Defense. The copy of the accusation shall include or be accompanied by (1) a statement that respondent may request a hearing by filing a notice of defense within 15 days after service upon him of the accusation, and that failure to do so will constitute a waiver of his right to a hearing.

b. The statement to respondent shall be substantially in the following form:

"Unless a written request for a hearing signed by or on behalf of the person named as Respondent in the accompanying Accusation is delivered or mailed to the Hearing Board within 15 days after the accusation was personally served on you or mailed to you, the Hearing Board may proceed with a hearing upon the accusation without your presence, and may issue any order supported by substantial evidence. The request for a hearing may be made by delivering or mailing the enclosed form entitled Notice of Defense, or by delivering or mailing a Notice of Defense as provided by Section 3.4 below to the Clerk of the Hearing Board at 24580 Silver Cloud Court, Monterey, California 93940. You may be represented by counsel at any or all stages of these proceedings if you wish.

If you desire the names and addresses of witnesses, or an opportunity to inspect and copy any public documents in the possession, custody or control of the District, you may contact the District Counsel, 24580 Silver Cloud, Monterey, California 93940.

c. The accusation and all accompanying information shall be sent to respondent by certified mail, return receipt requested. But no order adversely affecting the rights of the respondent shall be made by the Hearing Board ln any case unless the respondent shall have been served personally or by certified mail, or shall have filed a notice of defense or otherwise appeared. Service may be proved in the manner authorized in civil actions in California.


3.4 Notice of Defense. Waiver of Right to Hearing; Statement by Way of Mitigation.

a. Within 15 days after service upon him of an accusation, the respondent may file with the Hearing Board Clerk a notice of defense in which he may;

1. Request a hearing;

2. Object to the accusation upon the ground that it does not state acts or omissions upon which the Hearing Board may proceed;

3. Object to the form of the accusation on the ground that it is so indefinite or uncertain that he cannot identify the occurrence(s) complained of or prepare his defense;

4. Admit the accusation in whole or in part; or

5. Present new matter by way of defense.


Within the time specified, respondent may file one or more notices of defense upon any or all of these grounds, but all such notices shall be filed within that period unless the Hearing Board in its discretion authorizes the filing of a later notice.

b. The respondent shall be entitled to a hearing on the merits if he files a notice of defense, and any such notice shall be deemed a specific denial of all parts of the accusation not expressly admitted. Failure to file such notice shall constitute a waiver of respondent's right to a hearing, but the Hearing Board may nevertheless hold a hearing upon the merits of the accusation without respondent's participation. Unless objection is taken as provided in subsection 3.4a (3), all objections to the form of the accusation shall be deemed waived.

c. The notice of defense shall be in writing signed by or on behalf of the respondent and shall state his mailing address. It need not be verified or follow any particular form

d. Even if he does not file a notice of defense a respondent may:

1. File a statement by way of mitigation, or

2. File a request for variance which includes the matters required by Section 2.2.


ARTICLE 4. HEARING PROCEDURE

4.1 Time and Place of Hearing.

The Hearing Board shall determine the time and place of hearing, which place shall be readily accessible to the public.

4.2 (a) Notice of Hearing to Defend Accusations.

Pursuant to Health and Safety Code Section 40823(a) the Hearing Board shall deliver personally or mail a notice of hearing to all parties at least 10 days prior to the hearing. The hearing shall not be held prior to the expiration of the time within which the respondent is entitled to file a notice of defense.

(b) Notice of Hearing: Variance for a Period Greater than 90 Days or Modification of a Final Compliance Date.

1. Pursuant to Health and Safety Code Section 40826(a), the Hearing Board shall serve a notice of the time and place of a hearing to grant a variance upon the Air Pollution Control Officer, the State Air Resources Board, the Environmental Protection Agency, the District Board, the Supervisors of the County in which the affected facility is located, and upon the Applicant or Permittee if any, not less than 30 days prior to such a hearing.

2. Pursuant to Health and Safety Code Sections 40826(b) and 40826(c), the Hearing Board shall also publish a notice of the hearing in a least one daily newspaper of significant general circulation in each county of the District and shall send the notice to every person who requests such notice. The notice shall be sent and published not less than 30 days prior to the hearing and shall contain such information as may be necessary to reasonably apprise the people within the District of the nature and purpose of the meeting.

3. Pursuant to Health and Safety Code Section 40826(c), at least 30 days prior to the hearing, the Hearing Board shall make the petition for variance, including the proposed conditions, proposed increments of progress, proposed interim control measures, and proposed date for final compliance available to the public for inspection. The hearing notice shall state that the petition, including proposals, is available for public inspection, and set forth the place and times thereof

4. Pursuant to Health and Safety Code Section 40826, notice of a hearing upon petition for modification of a final compliance date shall be given ln accordance with the provisions of Section 4.2b of these rules.


(c) Notice of Hearing: Interim or Short Term Variance or Modification of a Schedule of Increments of Progress.

Pursuant to Health and Safety Code Sections 40824 and 40825, in the case of an interim variance, short term variance, or modification of a Schedule of Increments of Progress, the notice shall be served as required in 4.2b (1), and upon any person who requests notice of such actions, not less than 10 days before the hearing.

(d) Notice of Hearing: Revocation or Modification of a Variance.

Pursuant to Health and Safety Code Section 40823 the Hearing Board shall serve notice of the time and place of a hearing to revoke or modify any order permitting a variance not less than 10 days prior to such hearing upon the Air Pollution Control Officer, upon the party affected and upon all other persons who have filed with the Hearing Board or Air Pollution Control Officer a written request for such notification.

The Hearing Board shall also publish a notice of the hearing in at least one newspaper of significant general circulation in each county of the District. The notice shall contain the time and place of the hearing and such other information as may be necessary to reasonably apprise the people within the District of the nature and purpose of the meeting.


4.3 Representation of Counsel.

A party in any Hearing Board proceeding may be represented by legal counsel, but this is not mandatory. If a party elects to proceed without legal counsel, this does not entitle such party to a rehearing. A party requesting relief in a Hearing Board proceeding must appear in person or by legal counsel or other qualified representative in any hearing scheduled upon the request.

4.4 Order of Proceedings.

The order of proceedings before the Hearing Board shall ordinarily be as follows. The Hearing Board may in its discretion alter the order of proceedings as may be desirable to expedite the business of the board.

a. Announcement of pending matters;

b. Enter appearances;

c. Opening statement of moving party;

d. Opening statement of Intervener(s);

e. Opening statement of responding party;

f. Evidence produced by moving party;

g. Evidence produced by intervener(s);

h. Evidence produced by responding party;

i. Public testimony;

j. Rebuttal evidence produced by moving party;

k. Rebuttal evidence produced by intervener(s);

l. Rebuttal evidence produced by responding party;

m. Closing argument of moving party;

n. Closing argument of intervener(s);

o. Closing argument of responding party;

p. Rebuttal argument of moving party;

q. Matter decided, taken under submission or continued.


4.5 Validity of Class Action.

As soon as practicable after the commencement of a proceeding brought as a class action, the Hearing Board shall determine whether it may properly be so maintained and may, if necessary, hold a hearing with respect to this determination prior to the initiation of hearings on the merits of the application.

4.6 Preparation and Filing of Record.

All proceedings of the Hearing Board shall be recorded by a court reporter. Proceedings will not be transcribed unless a request for a transcription is made to the court reporter by a party to the proceedings or a member of the Hearing Board. In the event a transcript is desired by a party to the proceedings other than the District, the cost of this transcription shall be paid by said party.

4.7 Subpoenas.

a. Before the hearing has commenced the Chairperson of the Hearing Board shall issue subpoenas and subpoenas duces tecum at the request of any party for attendance of witnesses or production of documents at the hearing.

Compliance with the provisions of Section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena duces tecum. After the hearing has commenced the Hearing Board may issue subpoenas and subpoenas duces tecum.

b. The process pursuant to subsection (a) above shall be valid for all parts of the state and shall be served in accordance with the provisions of Sections 1987 and 1988 of the Code of Civil Procedure. No witness shall be obliged to attend at a place out of the county in which he resides unless the distance be less than 150 miles from his place of residence, except that the Hearing Board, upon affidavit of any party showing that the testimony of such witness is material and necessary, may endorse on the subpoena an order requiring the attendance of such witness.

c. All witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the State or any political subdivision thereof, shall receive fees, and all witnesses appearing pursuant to subpoena, except the parties, shall receive mileage, in the same amounts and under the same circumstances as prescribed by law for witnesses in civil actions in a superior court. Witnesses appearing pursuant to subpoena, except the parties, who attend hearings at points so far removed from their residence as to prohibit return thereto from day to day shall be entitled in addition to fees and mileage to a per diem compensation of forty dollars ($40) for each day of actual attendance and for each day necessarily occupied in traveling to and from the hearing. Fees, mileage, and per diem shall be paid by the party at whose request the witness is subpoenaed.


4.8 Evidence.

a. Oral evidence shall be taken only on oath or affirmation.

b. Each party shall have these rights; to call and examine witnesses; to introduce exhibits; to crossexamine witnesses on any matter relevant to the issues, even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him to testify; and to rebut the evidence against him. If respondent does not testify in his own behalf he may be called and examined as if under cross-examination.

c. Affidavits.

1. At any time 10 or more days prior to a hearing or a continued hearing, any party may mail or deliver to the opposing party a copy of any affidavit which he proposes to introduce in evidence, together with a notice as provided in Subsection 4.8 c (2) below. Unless the opposing party, within seven days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine an affiant, his right to cross-examine such affiant is waived and the affidavit, if introduced in evidence, shall be given the same effect as if the affiant had testified orally. If an opportunity to cross-examine an affiant is not afforded after request therefor is made as herein provided, the affidavit may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.

2. The notice referred to in subsection c(l) above shall be substantially in the following form:

"The accompanying affidavit of (here insert name of affiant) will be introduced as evidence at the hearing (here insert title of proceeding). (here insert name of affiant) will not be called to testify orally and you will not be entitled to question him unless you notify (here insert name of proponent or his attorney) at (here insert address) that you wish to cross-examine him. To be effective, your request must be mailed or delivered to (here insert name of proponent or his attorney) on or before (here insert a date seven days after the date of mailing or delivering the affidavit to the opposing party.)"


d. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.

e. Irrelevant and unduly repetitious evidence shall be excluded. The Hearing Board in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, or confuse the issues, or where matter sought to be proved are otherwise established.

f. The Hearing Board shall allow interested members of the public a reasonable opportunity to testify with regard to the matter under consideration, and the Hearing Board shall consider such testimony in making its decision. Such testimony shall be relevant to the matter being heard, shall be under oath, and shall be subject to cross examination and any appropriate evidentiary objections, the same as any other testimony.

g. Evidentiary Rulings.

Rulings upon evidentiary objections by either party or by any member of the Hearing Board shall be decided by majority vote of the Hearing Board.


4.9 Official Notice. Putting Noticed Matters upon Record: Manner of Refutation.

In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any generally accepted technical or scientific matter within the Hearing Board's special field, and of any fact which may be judicially noticed by the courts of this State. Parties present at the hearing shall be informed of the matters to be noticed, and those matters shall be noted in the record, or appended thereto. Any such party shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the Hearing Board.

4.10 Withdrawal of Abandonment of Application for Variance or Accusation.

a. At any time before the application for a variance is scheduled on calendar, the applicant may file in the office of the Hearing Board Clerk a written abandonment of the application, or the parties may file in the said office a stipulation for abandonment. The filing of either document shall operate to dismiss the application.

b. After application for a variance has been scheduled on calendar, an application may be dismissed by the Hearing Board on written request of the applicant or stipulation of the parties filed with the Hearing Boar~

c. Requests for abandonment or withdrawal must be received by the Clerk of the Hearing Board 72 hours prior to the time set for the hearing excluding Sundays and holidays. For hearings which are set for a Monday, the request must be received by the Clerk of the Hearing Board prior to 3:00 p.m. of the preceding Thursday. When the Clerk has obtained approval for an abandonment or withdrawal from the Chairperson of the Hearing Board or, in his absence, the Vice Chairperson, the Clerk will notify the other members of the Hearing Board and the parties of the action. When the abandonment or withdrawal is not approved, the Clerk will notify the party making the request.

d. The Hearing Board may, either on its own motion or upon application of Counsel for the District, in the furtherance of justice and for good cause shown, order an accusation to be dismissed.


4.11 Failure to appear for Hearing or to File a Notice of Defense.

a. If the respondent to an accusation fails to file a notice of defense or to appear at the hearing, the Hearing Board may take action based upon the respondent's express admissions or upon other evidence, and affidavits may be used as evidence without any notice thereof to respondent.

b. Where an applicant for a variance fails to appear for a hearing after notice of time and place has been given all parties by the Hearing Board, the Hearing Board may decide the matter upon the application and any briefs of the absent party, and any other evidence received, if any, or dismiss the application.

c. Nothing herein shall be construed to deprive the party of the right to make any showing by way of mitigation.


4.12 Amendment of Accusation before Submission.

At any time before the matter is submitted for decision, the Hearing Board may file or permit the filing of an amended or supplemental accusation. All parties shall be notified thereof. If the amended or supplemental accusation presents new charges, the Hearing Board shall afford the respondent a reasonable opportunity to prepare his defense thereto, but he shall not be entitled to file further pleadings unless the Hearing Board so orders. Any such new charges shall be deemed controverted and any objections to the amended or supplemental accusation may be made orally and shall be noted in the record

4.13 Amendment of Accusation after Submission.

The Hearing Board may order amendment of the accusation after submission of the case for decision. Each party shall be given notice of the intended amendment and an opportunity to show that he will be prejudiced thereby unless the case is reopened to permit the introduction of additional evidence in his behalf. If such prejudice is shown, the Hearing Board shall reopen the case to permit the introduction of additional evidence

4.14 Amendment of Application.

The Hearing Board may in its discretion, upon stipulation or ten days notice, permit the amendment of an application either before or after submission on such terms and conditions as it may determine to be proper. The Hearing Board may continue the hearing, or reopen the hearing if the case has been submitted, whenever an amendment to an application makes it necessary to do so.

4.15 Hearing by Five Members or less.

a. The Hearing Board may hold a hearing en banc or with three or four of their number present.

b. The concurrence of three members shall be necessary for any decision.

c. A Hearing Board member who is unable to attend all the hearings in a matter may participate in the decision of the matter, provided such member has read the transcripts or heard a tape recording of the missed proceedings, or upon the stipulation of the parties.


4.16 Request for Rehearing: Time to File.

The Hearing Board may grant or deny a rehearing of a decision if a party petitions for a rehearing within ten days after a copy of the decision has been mailed to him.

4.17 Rehearing of Matter Decided by Less Than Five Members.

The Hearing Board with not less than four members being present, may, within 30 days rehear any matter which was decided by three members

4.18 Disqualification of Hearing Board Members.

A Hearing Board member shall disqualify himself and withdraw from any case in which, in his opinion, he cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of any member by filing an affidavit before the submission of the case for decision stating with particularity ~he grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue raised by the request shall be determined by the other members of the Hearing Board.

4.19 Quorum.

Three members of the Hearing Board shall constitute a quorum.

4.20 Continuances.

Authority for scheduling cases before the Hearing Board or continuing cases before the Hearing Board rests with the Chairperson of the Hearing Board or, in his absence, the Vice Chairperson. Requests for continuance of cases scheduled before the Hearing Board must be received by the Clerk of the Hearing Board 72 hours prior to the time set for the hearing, excluding Sundays and Holidays. For hearings which are set for a Monday, the request must be received by the Clerk of the Hearing Board prior to 3:00 p.m. of the preceding Thursday. It is the responsibility of the parties before the Hearing Board to notify the Clerk of the Hearing Board when they request continuance of a hearing. When the Clerk has obtained approval for a continuance from the Chairperson of the Hearing Board or, in his absence, the Vice Chairperson, the Clerk will notify the other members of the Hearing Board and other parties involved in the case of the change in the schedule. When the continuance is not approved, the Clerk will notify the party making the request. Continuance requests made after the required 72 hour period will be ruled on by the Hearing Board during the scheduled hearing.

4.21 Orders of the Hearing Board.

All orders of the Hearing Board shall be in writing and shall contain the findings and conclusions upon which the Board's decision is based. The decision of the Hearing Board shall be effective upon filing with the Clerk, unless otherwise provided in the order.

4.22 Judicial Review.

Judicial review may be had of a decision of the Hearing Board by filing a petition for writ of mandate within 30 days of the transmittal of the Hearing Board's decision to the parties by the Clerk, as provided in Health and Safety Code Section 40864.

4.23 Prehearing Conferences.

a. For the purposes of expediting hearings, reducing expense and delay in Hearing Board procedures, eliminating excessive presentation of noncontroversial matters, defining disputed issues, deciding discovery questions, making evidentiary rulings which will streamline the conduct of hearings, or deciding any preliminary matter not determinative of the merits, the Hearing Board may conduct a prehearing conference.

b. Any party or any Hearing Board member may request a prehearing conference by submitting a written request prior to any hearing in the case. The Clerk shall immediately transmit such request to the Chairman for his action, with copies to all parties and all Hearing Board members. The Chairman shall then instruct the Clerk to set a prehearing conference either just prior to a Hearing Board meeting as set forth in subsection c. below or at some other specified date and time and to give written notice of such setting to the parties and to all Hearing Board members.

c. A prehearing conference shall be calendared and held at the beginning of each Hearing Board meeting, to consider preliminary matters relating to any action scheduled to be heard at such meeting.


4.24 Stipulations.

a. The parties to an action may stipulate to any matter which is in controversy, whether factual or an issue of law, either orally or in writing. A stipulation is an agreement by the parties as to the existence of certain facts, the manner in which the law applies to the facts in the case, or the manner in which the controversy should be resolved. While a stipulation expresses the agreement of the parties, it is not binding upon the Hearing Board, which can either issue a decision in accordance with the stipulation or take any other action which is warranted by the evidence. A stipulation as to factual matters, however, conclusively establishes facts stipulated to and removes such facts from issue.

b. The submission by the parties of any stipulation does not relieve the parities of the necessity to appear at any hearing, since a stipulation has no binding effect upon how the Hearing Board may proceed in any action.


ARTICLE 5. Discovery

5.1 Depositions and Requests for Admission of Facts and of Genuineness of Documents.

For the purpose of discovery of for use as evidence in any proceedings, or for both purposes, and in addition to the methods of discovery provided in Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code, any party may conduct discovery as to any other party, including an employee or agent of a party, by any of the following methods:

a. Depositions upon oral examination; or

b. Written requests for admission of the genuineness of any relevant documents described in the request, or of the truth of any matters of fact set forth in the requests.


5.2 Procedures and Practice

a. Procedure and practice for taking of depositions, or for admission of facts, and of genuineness of documents shall follow, so far as compatible, Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code and the procedures and practice of the Code of Civil Procedure, Sections 2016 through 2021, and 2030, and 2036.

b. Notwithstanding Subsection 5.2(a), the Hearing Board in its discretion may decide disputes between the parties concerning the availability or conduct of discovery and may set a schedule for discovery in any proceeding.

ARTICLE 6. File Docket and Hearing Calendar

6.1 File Docket.

The Clerk shall maintain in the office of the Hearing Board Clerk a docket of all applications and accusations, and each application or accusation shall be assigned an appropriate designation. Such docket shall be available for public inspection at the office of the Hearing Board Clerk during office hours.

6.2 Hearing Calendar.

The Clerk shall cause to be maintained a calendar of applications and accusations filed and applications or accusations set for hearing, which calendar shall be available for public inspection at the office of the Hearing Board Clerk. Copies of such calendar may be obtained on request of the Clerk, and upon payment of any required fee.

6.3 Case Records.

Material which comprises the Hearing Board's record in the docket cases is available for study and review by the public and the District staff in the office of the Hearing Board Clerk during normal office hours. This material will not be available for review or other use outside the Hearing Board Clerk's office. Copies of records and exhibits may be obtained at the Clerk's office by paying the actual cost of preparation. When transcripts are obtained for docket cases by the Hearing Board, the transcripts will be delivered to the Clerk of the Hearing Board and a copy of the transcript will be included in the case file. The Hearing Board will not permit withdrawal of evidence so long as any issue concerned in the hearing is still pending a final decision either before the Hearing Board or before the courts of California. If after a final decision by the Hearing Board no further proceeding for review has been taken within the time prescribed by law, exhibits may be withdrawn at the request of the party which submitted them, or his counsel, and upon order of the Hearing Board.

6.4 Filing of Papers.

All papers filed with or submitted to the Hearing Board shall be in original and eight copies. The Clerk of the Hearing Board shall file the original in the original case file. One copy shall be filed in each member's folder and three copies shall be forwarded to Counsel for the District for staff use. If conformed copies are requested by the party filing a document, then sufficient additional copies shall be furnished by him for this purpose. Papers presented in proper form, accompanied with the required number of copies, required fee, if any, shall be deemed filed on the day presented.


ARTICLE 7. Officers of the Board

7.1 Election of Officers.

The Chairperson and Vice Chairperson shall be elected by the Hearing Board members at the first Hearing Board meeting of each calendar year.

APPENDIX A
SCHEDULE OF FILING FEES

Adopted by the District Board
December 17, 1986
Revised June 13, 1990 and June 21, 2000


1. For each application for variance exceeding 90 days, in accordance with HSC Section 42350,
including applications on behalf of a class of applicants, which meet the requirements
of the Hearing Board Rules for a valid and proper class action for variance . . . . . . . . . . . . . . . . . . . . . . .$521

Plus, for each hearing in addition to the first hearing necessary to
dispose of said variance application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . $261

2. For each application for variance not exceeding 90 days, in accordance with HSC Section 42350, including
applications on behalf of a class of applicants, which meet the requirements of the Hearing Board Rules for a valid
and proper class action for variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $365

Plus, for each hearing in addition to the first hearing necessary to dispose of said variance application . . . . $261

3. For each application to modify a variance, in accordance with HSC Section 42356 . . . . . . . . . . . . . . . $365

Plus, for each hearing addition to the first hearing on said application
to modify a variance, necessary to dispose of the modification application . . . . . . . . . . . . . . . . . . . . . . . . $261

4. For each application to modify a variance's schedule of Increments of
Progress or Final Compliance Date, in accordance with HSC Section 42357 . . . . . . . . . . . . . . . . . . . . . . $365

Plus, for each hearing in addition to the first hearing on an application to modify the
schedule of a variance, necessary to dispose of the modification application . . . . . . . . . . . . . . . . . . . . . . . .$261

5. For each application by the District to revoke a variance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $0

6. For each application for approval of a Schedule of Increments of Progress in accordance
with HSC Section 41703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$365

Plus, for each hearing in addition to the first hearing on said application for
approval of a schedule of Increments of Progress, pursuant to HSC Section 41703. . . . . . . . . . . . . . . . . . .$261


7. For each application for emergency variance, in accordance with HSC Section 42359.5 . . . . . . . . . . . . .$261

8. For each application for Hearing Board review of the District's denial
of a permit, in accordance with HSC Section 42302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $365

Plus, for each hearing in addition to the first hearing on said application for review . . . . . . . . . . . . . . . . . . . . $261

9. For each application for Hearing Board review of the District
suspension of a permit, in accordance with HSC Section 42306 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $365

Plus, for each hearing in addition to the first hearing on said application for review . . . . . . . . . . . . . . . . . . . . $261

10. For each application by the District to revoke a permit, in accordance with HSC Section 42307 . . . . . . . . $0

11. For each application for intervention in a pending
variance action, pursuant to Section 2.5 of these Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $365

Plus, for each hearing in addition to the first hearing in hich any intervener participates as a party . . . . . . . . . . $261

APPENDIX B
EXCESS EMISSION FEES

Adopted by the District Board
December 17, 1986
Revised June 13, 1990 and June 21, 2000


1. Excess Emission Fee.

Each applicant for a variance shall pay to the Clerk of the Hearing Board, in addition to the filing fee required, an excess emission fee based on the difference between the emissions allowed by the District rules and the maximum emissions, other than those described in Section 2 below, allowed by the variance. The fee shall be determined in accordance with the schedule set forth in Schedule A below.

2. Excess Visible Emission Fee.

Each applicant for a variance from a limitation upon the opacity of emissions shall pay to the Clerk of the Hearing Board, in addition to any filing fees required and any excess emission fee required by Subsection 1 above, an excess visible emission fee based on the difference between the percent opacity allowed by the limitation and the maximum percent opacity of the emissions allowed from the source or sources operating under the variance, in accordance with the schedule set forth in Schedule B below.

In the event more than one rule limiting the discharge of the same contaminant is violated, the excess emission fee or excess visible emission fee shall consist of the sum of fees for all individual excesses. For the purpose of this Appendix, opacity rules and particulate mass emission rules shall not be considered rules limiting the discharge of the same contaminant.

3. Minimum Fees.

When a variance is granted from a rule or rules which limit the discharge of air contaminants, such that an excess emission fee or excess visible emission fee is due, a fee of a least $208 shall be applied.

4. Applicability.

The provisions of Subsection 1 above shall apply only to those rules or statutes that specify quantitative emission limits.

5. Fee Determination.

5.1 The excess emission fee shall be calculated based upon the requested number of days of operation under variance multiplied by the excess emissions per day allowed by the variance, as set forth in Subsection 1 and 2 above.

5.2 The Hearing Board may adjust the excess emission fee required by Subsections 1 and 2 of this Appendix based on evidence regarding emissions presented at the time of the hearing.

6. Fee Payment.

Failure to pay the excess emission fee required by Subsection 1 and 3 of this Appendix within ten (10) days of the effective date of the variance shall invalidate the variance.

7. Discretionary Powers.

When it is determined by the Hearing Board that payment of fees required by this Appendix would present an economic hardship to the petitioner, the petitioner may be exempted from such fees, or a portion of them.

8. Public Agencies.

Public agencies qualifying under Government Code Section 6103 shall be exempt from payment of excess emission fees.

9. Excess Emission Fee Schedules.

Schedule A

EXCESS EMISSION FEE

Air Contaminants

Dollars per Ton

Organic gases, except methane and
those containing sulfur . . . . .

$208

Oxides of nitrogen (expressed as
nitrogen dioxide) . . . . . . . .

$156

Gaseous sulfur compounds (expressed
as sulfur dioxide). . . . . . . .

$125

Particulate matter. . . . . . . .

$115

 

Schedule B

EXCESS VISIBLE EMISSION FEE

For each source excessive opacity emissions the fee is calculated as follows:  
     

Fee =

(Opacity* allowed by variance
  - opacity allowed by rules) X
  number of days allowed in variance x $0.94
     
* Where the opacity equals the maximum opacity of emissions in percent (not decimal equivalent) allowed by the variance. Where the emissions are darker than the degree of darkness equivalent to the allowed Ringelmann number, the percentage equivalent of the excess degree of darkness shall be used as "Opacity".