What is a variance?
A variance is an administrative exception to a law, and if granted, will allow a company to continue operating in violation of local air district permits and regulations without penalty while it takes appropriate steps to meet air pollution control requirements. Variances can be granted only by the local air district hearing board, not by district inspectors or engineers. When should one seek a variance?
A variance should be sought where there are good reasons, beyond the reasonable control of a company, as to why equipment cannot comply with applicable regulations or individual permits, as operating contrary to applicable regulations and permit conditions can result in a fine, or even the shutdown of an operation. Variances may not be granted for violation of federal emission standards, or the need to secure a permit to operate equipment. ALG routinely assists our clients, or our client’s legal counsel, by providing technical assistance needed to navigate the variance process and secure relief from the hearing board. ALG has secured scores of variances from hearing boards throughout the state, providing engineering, dispersion modeling and health risk analyses, drafting the petitions needed to initiate the variance process, and testifying at hearings.
When will a variance be granted?
A variance may only be granted where a company can provide data and analyses that will allow a hearing board to make six findings as required by the California Health and Safety Code. Among the six findings, we pay particular attention to the need to reduce emissions to the maximum extent feasible and to demonstrate that excess emissions will not pose a health risk to exposed persons. Here our practical and technical expertise is leveraged to identify resourceful operational and engineering options to assure that all emissions due to non-compliance minimized.
Four types of variances:
Emergency Variance: May be granted by the hearing board without a public hearing and are only granted when the hearing board is satisfied that the company provides good reasons and a solid basis for why the time required for public notice and comment cannot be met. Sought where the equipment is in violation of a rule or permit.
Interim Variance: Similar to an emergency variance, interim variances may be granted by the hearing board without a public hearing and are only granted when the hearing board is satisfied that the company provides good reasons and a solid basis for why the time required for public notice and comment cannot be met. Sought where the source will be in violation, but before a 10-day public notice period. Interim variances are generally accompanied with a short or regular variance petition. That is, an interim variance is used to provide a facility enforcement protection until it is able to have the matter heard at the next regularly scheduled meeting of the Hearing Board.
Short-term Variance: Can potentially last up to 90 days and may be granted with a 10-day public notice period.
Regular Variance: Can potentially last up to a year and may be granted with a 45 day public notice period.
Increasingly, ALG has found that hearing boards are especially critical of petitions for interim variances, which can only be granted where a company can establish “good cause” for why a petition was not filed early enough to provide for the 10-day notice periods associated with a short variance. Hearing board members have stressed that it is better to seek a short variance, and provide for this requisite public notice, and later cancel it should corrective actions prove successful, than seek an interim variance and deny the public the opportunity to comment.
Among the many technical services provided by Ashworth Leininger Group (ALG) to our clients is securing variances under the California Health and Safety Code, consistent with individual air district regulations. If you would like to learn more, please contact Ev Ashworth at eashworth@algcorp.com or (805)764-6017.