MENDOCINO COUNTY AIR QUALITY MANAGEMENT DISTRICT

RULE 320 - HEARING BOARD AND VARIANCE FEES

(a) PURPOSE

The purpose of this Rule is twofold:

  1. To recover, as much as possible, the costs to the District and the County of administration of the variances granted by the Hearing Board and other orders of the Hearing Board, including those incurred as a result of appeals from District decisions on the issuance of permits and issuance of abatement orders, including all costs of holding hearings. Such costs include consultations with applicants, reviewing applications, holding hearings, drafting and publishing variance orders, required notification of the responsible state and federal authorities, maintenance of records, reviewing progress toward compliance and conducting inspections.
  2. To avoid enforcement action by USEPA against permit holders in the District by charging fees for operation under variance. Operation under variance constitutes a violation of federal regulations, which do not recognize variances. USEPA has a program of "overfiling" when, in their opinion, penalties extracted for violations are not sufficient.
    [adopted 6/01/93]

(b) APPLICABILITY

This Rule shall apply to anyone who petitions or applies to the Hearing Board for any of the forms of relief in subdivision (n) or who is the subject of an abatement order having the effect of a variance. This rule shall not apply to the Air Pollution Control Officer. The provisions of subdivisions(e), (f), (g) and (h) shall apply to anyone seeking a variance from a rule or permit condition which specifies quantitative emission limits, including federally enforceable emission limitations, or which may be interpreted as implying such a limitation. Subdivisions (e), (f), (g) and (h) shall also apply to anyone who is the subject of an abatement order having the effect of such a variance. As used in this Rule, the term "variance" includes any order of the Hearing Board allowing operation of a source of air contaminants in violation of Health and Safety Code Section 41701, or in violation of the Rules and Regulations of the District, or in violation of a limitation or condition on a permit, unless the context dictates otherwise.
[adopted 6/01/93]

(c) FILING FEES AND OTHER HEARING BOARD FEES

Every applicant or petitioner for variance, or for the extension, revocation or modification of a variance, or for an appeal from a denial or conditional approval of an Authority to Construct or Permit to Operate or appeal of a Hearing Board decision, or request for a rehearing, or for intervention in any matter before the Hearing Board, and any person to whom this Rule is otherwise applicable, including any federal, state or local governmental agency or public district, shall pay to the Clerk of the Hearing Board, on filing, a basic fee as provided in subdivision (n), adjusted in accordance with the CPI factor of Rule 300(f). It is hereby determined that the cost of administration of the Hearing Board and Variance Procedures of Chapter VI of this regulation exceeds these fees. Additional Hearing Board fees and costs may be assessed by the District Hearing Board and District Board to recover the costs arising from the action which the applicant or petitioner has brought before the Hearing Board, or which has otherwise come before the Hearing Board, including, but not limited to the cost of holding hearings, the costs of conducting inspections and reviewing compliance with orders issued by the Hearing Board, the costs of preparing and maintaining records of hearings, the cost of counsel for the Hearing Board, and any other costs which may be reasonably ascribed to the administration of orders issued by the Hearing Board.
[adopted 6/01/93]

(d) PARTIAL REFUND OF APPELLANT'S FEE WHEN DECISION OVERTURNED

In the event that a third party appeal to the Hearing Board or rehearing leads to the overturning of a previous decision by the Hearing Board or the Air Pollution Control Officer, 50% of the appellant's filing fee will be refunded.
[adopted 6/01/93]

(e) COST OF TRANSCRIPTS OR TAPE RECORDINGS OF HEARINGS

Any person requesting a written transcript or tape recording of the hearing shall pay the cost of such transcript or recording. The Hearing Board may direct the parties to its proceedings to pay the cost of transcripts necessary for the Hearing Board's determination of the matter, in such proportion as the Hearing Board may order.
[adopted 6/01/93]

(f) EXCESS EMISSION FEES

In addition to the filing fees and other fees required in subdivision (c), each recipient of a variance from the Rules and Regulations of the District, or from a permit limitation shall pay to the Clerk of the Hearing Board an excess emission fee. The excess emission fee shall be based on the total weight of emissions discharged in excess of the amounts allowed by these rules or by permit condition, other than those described in subdivision (g) below, during the variance period. The excess emission fee shall be calculated in accordance with the schedule in subdivision (n), or as provided in subdivision (h), whichever is greater, adjusted in accordance with the CPI factor of Rule 300(f).

Where an applicant receives a variance from more than one rule or permit condition limiting the discharge of the same contaminant, the emission for that contaminant shall be shall be cumulative; the fee shall be determined in the same fashion as if the applicant were seeking separate variances from separate rules, laws or permit conditions limiting the emissions of different pollutants. Moreover, for the purposes of this Rule, opacity rules and particulate mass emission rates will not be considered rules limiting the discharge of the same contaminant.
[adopted 6/01/93]

(g) EXCESS VISIBLE EMISSION FEE

In addition to the filing fees and other fees required in subdivision (c), and the excess emission fees required in subdivision (f) (if any), each recipient of a variance from Health and Safety Code Section 41701, from Rule 410(b), or from a permit limitation on opacity of emissions shall pay to the Clerk of the Hearing Board an excess visible emission fee. The fee shall be based on the difference between the opacity allowed by Health and Safety Code 41701, Rule 410(b), or the permit limitation and the opacity of emissions allowed from the source or sources while operating under the variance or other order of the Hearing Board, in accordance with the procedure set forth in subdivision (m), and adjusted in accordance with the CPI factor of Rule 300(f).

Where an applicant seeks a variance from more than one limit on the opacity of emissions (Health and Safety Code Section 41701, Rule 410(b) or permit condition), the excess visible emission fee shall be shall be cumulative; the fee shall be determined in the same fashion as if the applicant were seeking separate variances from separate rules, laws or permit conditions limiting the emissions of different pollutants.
[adopted 6/01/93]

(h) MINIMUM FEES

Except as otherwise provided by the Hearing Board in accordance with subdivision (k), the excess emission fee shall be not less than $25.00 per day, adjusted in accordance with the CPI factor of Rule 300(f).
[adopted 6/01/93]

(i) FEE DETERMINATION

  1. The petitioner shall calculate the excess emission fees of subdivisions (f), (g) and (h). The calculations and proposed fees shall be set forth in the petition.
  2. The Hearing Boards may adjust the excess emission fee and excess visible emission fee required by subdivisions (f) and (g) of this Rule based on evidence regarding emissions presented at the time of the hearing.
  3. The amount of excess emission fees and excess visible emission fees shall not exceed $1,000.00 per day for each law, rule or permit limitation from which a variance is sought.
    [adopted 6/01/93]

(j) FEE PAYMENT

Excess emission fees are due and payable immediately upon issuance of the Hearing Board's order. Failure to pay the excess emission fees or excess visible emission fees required by subdivision (f), (g) and (h) of this Rule within fifteen (15) days of the date of the Hearing Board's order shall invalidate the variance or other order of the Hearing Board having the effect of a variance.
[adopted 6/01/93]

(k) DISCRETION OF THE HEARING BOARD

Any person applying for a variance may allege that payment of any of the foregoing excess emission fees will cause an unreasonable hardship. The Hearing Board may by order excuse any such person from payment of all or a portion of such fees if the Board in its discretion determines after hearing evidence thereon that payment of such fees would cause unreasonable financial hardship to the petitioner.
[adopted 6/01/93]

(l) SCHEDULE OF EXCESS EMISSION FEES
 

Air Contaminant

Dollars per Ton

Organic Gases, except methane and those containing sulfur

$ 200.00

Oxides of nitrogen (expressed as nitrogen dioxide)

$ 100.00

Oxides of Sulfur (expressed as sulfur dioxide

$ 100.00

Total reduced sulfur compounds (expressed as hydrogen sulfide)

$ 400.00

Particulate matter

$ 200.00

[adopted 6/01/93]

(m) COMPUTATION OF EXCESS VISIBLE EMISSION FEE

For each source with opacity of emissions in excess of the limits of Rule 410(b) Visible Emissions, or of a permit limitation on opacity, the fee shall be calculated as follows, then adjusted in accordance with the CPI factor of Rule 300(f):
 

Fee = {Prescribed Opacity - Opacity limitation} x $3.50/day x number of days allowed under the variance.

Example:

Fee = (35 - 20) x $3.50 x 120 days = $6,300

or

Fee = Minutes allowed in excess of three above the opacity limitation x $10.00 x number of days allowed under the variance.  (For applicants seeking a variance allowing more time in excess of the opacity limitation.)

Example:

Fee = (6 min. - 3 min) x $20.00 x 120 days = $7,200.00

Note: For purposes of this Rule, "prescribed opacity" means the opacity allowed under the variance for more than 3 minutes in any one hour, and "opacity limitation" means the opacity limitation specified in the rule or permit condition from which a variance is being sought, or in Health and Safety Code Section 41701. Opacity is expressed as percent, in whole numbers.

[adopted 6/01/93]

 
(n) SCHEDULE OF FILING FEES
 

1. For each application for variance exceeding 90 days, in accordance with Health and Safety Code Section 42350, including application 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 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such a variance application $225
2. For each application for variance not exceeding 90 days, in accordance with Health and Safety Code 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 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such a variance application $225
3. For each application to modify a variance, in accordance with Health and Safety Code Section $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such an application $225
4. For each application to modify a variance's schedule of Increments of Progress or Final Compliance Date, in accordance with Health and Safety Code Section 42357 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such an application $225
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 Health and Safety Code Section 41703 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such an application $225
7. For each application for emergency variance, in accordance with Health and Safety Code Section 42359.5 $275
8. For each application for Hearing Board review of the District's denial of a permit, in accordance with Health and Safety Code Section 42302 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such an application $225
9. For each petition for Hearing Board review of the District's granting of a permit, in accordance with Health and Safety Code Section 42302 or Regulation 1, Rule 250 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such an application $225
10. For each application for Hearing Board review of the District suspension of a permit, in accordance with Health and Safety Code Section 42306 $275
  Plus, for each continuation or other hearing in addition to the first hearing necessary to dispose of such an application $225
11. For each application for intervention in a matter before the Hearing Board $275
  Plus, for each continuation or other hearing in addition to the first hearing in which any intervenor participates as an intervenor $225
[adopted 6/01/93]