CHAPTER VI - HEARING BOARD & VARIANCE
PROCEDURES
RULE
1-610 - PETITION PROCEDURE
RULE 1-615
- EMERGENCY VARIANCES
RULE
1-618 - MODIFICATION OF INCREMENTS OF PROGRESS SCHEDULE
RULE
1-620 - HEARING PROCEDURES
RULE
1-640 - RECORD OF PROCEEDINGS
RULE
1-650 - APPEAL OF DECISION
CHAPTER VI - HEARING BOARD & VARIANCE
PROCEDURES
These procedures shall apply to all hearings
before the Mendocino County Air Quality Management District Hearing Board as
authorized by Division 26, Part 3, Chapter 8 of the California Health and
Safety Code, and held in accordance with the provisions of Division 26, Part 4,
Chapter 4 of said Code.
RULE 1-610 - PETITION PROCEDURE
(a) Filing
Petitions
Requests for hearings
shall be initiated by the filing of a petition with the Clerk of the Hearing
Board, and the payment of fees as provided for in Rule 1-320 of these Rules and
Regulations. Service of a copy of the
petition shall be made on the Air Pollution Control Officer, and on the holder
of the permit or variance, if any, involved.
Service may be made in person or by mail, and service may be proved by
written acknowledgement of the person served or by the affidavit of the person
making the service.
(b) Contents of
Petitions
Every petition for
Hearing Board action shall state:
(1) The name, address and telephone number of the
petitioner, or other person authorized to receive service of notices.
(2) Whether the petitioner is an individual,
co-partnership, corporation or other entity, and the names and addresses of the
partners if a co-partnership, the names and addresses of the officers if a
corporation, and the names and addresses of the persons in control, if other
entity.
(3) The type of business or activity involved
in the application and the street address at which it is conducted.
(4) A brief description of the article,
machine, equipment, or other contrivance, if any, involved in the application.
(5) The section or rule under which the
petition is filed; that is, whether petitioner desires a hearing:
(A) To review an Authority to Construct or
Permit to Operate denied by the Air Pollution Control Officer, (Health and
Safety Code, Section 42302).
(B) To
review the suspension of a permit by the Air Pollution Control Officer, (Health
and Safety Code, Section 42306).
(C) To determine whether a permit shall be revoked, (Health and Safety Code, Section 42307).
(D) To request a variance under Section 42350 of
the Health & Safety Code.
(E) To modify or revoke a variance previously granted, (Health and Safety Code, Section 42356).
(6) Each Petition shall be signed by the
Petitioner, or by some person on his behalf, and where the person signing is
not the Petitioner, it shall set forth his authority to sign.
(7) Petitions to review a denial of an
Authority to Construct or Permit to Operate shall
state the reasons given for the denial and reasons for the appeal.
(8) Petitions for reinstatement of suspended
permits shall state the alleged basis for such suspension.
(9) Petitions for revocation of permits shall state
the rule, which is alleged, to have been violated and a brief statement of the
facts constituting such alleged violation.
(c) Variance Petitions
In addition to the
requirements of Rule 1-610(b), petitions for variance shall state briefly:
(1) The section, order or rule complained of;
(2) The facts showing why compliance with the
section, rule or order is unattainable;
(3) For what period of time the variance is
sought and specific dates for achieving various increments of progress;
(4) The damage or harm resulting or which would
result to petitioner from a compliance with such section, rule or order by
either an arbitrary or unreasonable taking of property; or the practical
closing and elimination of a lawful business without a corresponding benefit in
reducing air contaminants;
(5) The requirements which petitioner can meet
and the date when petitioner can comply with such requirements;
(6) Whether or not the subject equipment or
process is covered by a Permit to Operate issued by the Air Pollution Control
Officer;
(d) Dismissal of
Petition
The petitioner may
dismiss his petition at any time prior to the date set for the hearing. Such dismissals requested at least 72 hours
in advance of the hearing shall result in a 50% refund of the Hearing Board fee
to the petitioner. The Clerk of the
Hearing Board shall notify all interested persons of such dismissal.
RULE 1-615 - EMERGENCY VARIANCES
Notwithstanding other provisions of Chapter VI
of these regulations, the Chairperson of the Hearing Board or any other member
of that Hearing Board designated thereby as the Hearing Officer,
may issue, without notice and hearing, an emergency variance or series of
variances to an applicant. The emergency
variance or series of variances shall be in effect until the hearing to
consider a request by the applicant for a variance other than an emergency
variance, but not to exceed 30 days.
(a) Upon receipt of a request for an emergency
variance, the Air Pollution Control Officer shall contact the Hearing Officer to
establish a time and place for consideration of the request. The Air Pollution Control Officer shall
inform the applicant of such time and place.
(b) The applicant and Air Pollution Control
Officer shall present testimony and evidence to the Hearing Officer. The burden of proof shall be on the applicant
to demonstrate that a breakdown or other emergency situation exists.
(c) In order to consider the granting of an
emergency variance for an extended breakdown situation, the Hearing Officer
should determine the causes of the breakdown and that the equipment failure or
malfunction:
(1) is not the result of neglect or disregard
of any air pollution control law or rule or regulation;
(2) is not intentional
or the result of negligence;
(3) is not the result
of improper maintenance.
(d) After consideration of the emergency variance
request, the Hearing Officer may grant or deny an emergency variance. Within five working days following the
granting of an emergency variance, a written order shall be issued confirming
the decision, with appropriate findings.
(e) No emergency variance shall be granted unless
the Hearing Officer determines that:
(1) The emergency variance request is caused by
a breakdown condition or other emergency situation and may not be delayed until
a properly noticed hearing.
(2) Granting of the emergency variance will not
cause a public nuisance.
(3) Granting of the emergency variance will not
create an immediate threat or hazard to public health or safety.
(4) Granting of the emergency variance will not
interfere with the attainment or maintenance of any national ambient air
quality standard.
(5) The requirements for a variance set forth
in Rule 1-630(c) have been met.
(f) At any time after an emergency variance has been
granted, the applicant or Air Pollution Control Officer may request the Hearing
Officer to revise, revoke or further condition the variance and issue an
amended written order. All procedures
shall be as designated for the original hearing.
(g) An emergency variance shall remain in effect
only as long as necessary to correct the breakdown or emergency condition, but
not to exceed the time period required for a properly noticed hearing to
consider an interim or 90-day variance in accordance with Rule 1-620(b), or 30
days, whichever is the shorter time period.
(h) Within ten (10) days after the date of
expiration of an emergency variance, the applicant shall submit a written
report to the Air Pollution Control Officer including, but not limited to, the following
details:
(1) Duration of excessive emissions.
(2) Estimate of quantity of emissions.
(3) Statement of the cause of the occurrence.
(4)
Corrective measures to be taken to
prevent a recurrence.
(5) Documentation of the breakdown condition
may be required by the Air Pollution Control Officer.
Any person who has submitted an application for
a variance and who desires to commence or continue operation pending the
decision of the Hearing Board on the application, may submit an application for
an interim variance. (Health and Safety Code, Section 42351)
(a) An interim variance may be granted for good
causes stated in the order granting such a variance.
(b) The interim variance shall not be valid beyond
the date of the decision of the Hearing Board on the application or for more
than 90 days from the date of issuance of the interim variance, whichever comes
first.
(c) The Hearing Board shall not grant any interim
variance:
(1) after it has held
a hearing in compliance with the requirements of Rule 1-620; or
(2) that is being
sought to avoid the notice of hearing requirements of Rule 1-620.
RULE 1-618 - MODIFICATION OF INCREMENTS OF PROGRESS SCHEDULE
If a person granted a variance with a schedule
of increments of progress, files an application for modification of the
schedule and is unable to notify the Hearing Board sufficiently in advance to
allow the Hearing Board to schedule a public hearing, the Hearing Board may
grant a one time interim authorization which is valid for not more than 30
days, to continue operation pending decision of the Hearing Board on the
application.
(a) The Chairperson of the Hearing Board or any
other Hearing Board member designated by the Board may hear such application.
(b) If a member of the public contests a decision
made by one member of the Hearing Board, the application shall be reheard by
the full Hearing Board within 10 days of the decision.
The interim
authorization shall not be granted for a requested extension of a final
compliance date or where the original variance expressly required advance
application for the modification of an increment of progress. (Health and
Safety Code, Section 42351.5)
RULE 1-620 - HEARING PROCEDURES
(a) Place of Hearing
All hearings shall be
held at such time and place as designated by the Clerk of the Hearing Board on
the notice of hearing.
(b) Notice of Hearing
(1) Except as provided for in Rule 1-620 (c), (d) and (e) the Hearing Board shall serve notice of the time
and place of the hearing upon the Air Pollution Control Officer and upon the
applicant or Permit Holder affected not less than 10 days prior to such
hearing. (Health and Safety Code, Section 40823)
(2) Except as provided for in Rule 1-620 (c), (d) and (e) the Hearing Board shall also send notice of
hearing to every person who requests such notice and obtain publication of such
notice in at least one daily newspaper of general circulation within the
district. The notice shall state the
time and place of the meeting, and reasonably apprise the people within the
district of the purpose of the meeting. (Health and Safety Code, Section 40823)
(c) Short Term Variances/Modifications of
Increments of Progress
In the case of a
hearing to consider an application for a variance, or a series of variances to
be in effect for a period of not more than 90 days, or an application for a
modification of a schedule of increments of progress, or for an order of
abatement:
(1) The Hearing Board shall serve notice of the
time and place of a hearing to grant such a variance or modification upon the
Air Pollution Control Officer, all surrounding districts, the California Air
Resources Board, the U.S. Environmental Protection Agency, and upon the
applicant or Permit Holder not less than 10 days prior to such hearing. (Health
and Safety Code, Section 40825)
(2) Rule 1-620(b)(2)
shall not apply. (Health and Safety Code, Section 40825)
(3) The Chairperson of the Hearing Board or any
other member of the Hearing Board so designated by the Hearing Board, may hear an application for an interim variance. If any member of the public contests a
decision made by any one member of the Hearing Board, the application shall be
reheard by the full Hearing Board within 10 days of the decision. (Health and
Safety Code, Section 40825)
(d) Interim
Variance
In the case of a
hearing to consider an application for an interim variance, as authorized in
Rule 1-616:
(1) The Hearing Board shall serve reasonable notice
of the time and place of the hearing on the Air Pollution Control Officer and
upon the applicant.
(2) Rule 1-620(b)(2)
shall not apply.
(3) The Chairperson of the Hearing Board or any
other member of the Hearing Board so designated by the Hearing Board, may hear an application for an interim variance. If any one member of the public contests a
decision made by any one member of the Hearing Board, the application shall be
reheard by the full Hearing Board within 10 days of the decision. (Health and
Safety Code, Section 40824)
(e) Regular Variance Procedure
In the case of a
hearing to consider an application for variance, other than a 90 day variance,
or an interim variance, or an application for a modification of a final
compliance date in a variance previously granted, the notice requirements shall
be as follows:
(1) The Hearing Board shall serve a notice of
the time and place of a hearing to the Air Pollution Control Officer, all
surrounding districts, the California Air Resources Board, the U.S.
Environmental Protection Agency, and upon the petitioner or Permit Holder.
(2) The Hearing Board shall also publish a
notice of the hearing in at least one newspaper of general circulation within
the District, and send such notice, at least 30 days prior to the hearing.
(3) The notice shall state the time and the
place of the hearing, the time when, commencing not less than 30 days prior to
the hearing, and the place where the application including any proposed
conditions or schedule of increments of progress is available for public
inspection. (Health and Safety Code, Section 40826)
(f) Answers
Any person may file an
answer within 10 days after service. All
answers shall be served the same as petitions under Rule 1-610(a).
(g) Continuances
The Chairperson or any
three members of the Hearing Board may grant any reasonable continuance
concurred in by petitioner, the Air Pollution Control Officer and by every
person who has filed an answer in the action.
Such action may be ex parte', without a meeting
of the Hearing Board and without prior notice.
(h) Evidence
(1) Oral evidence shall be taken only on oath
or affirmation.
(2) Each party shall have these rights: to call
and examine witnesses; to introduce exhibits; to cross-examine opposing 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, or
her, own behalf, he may be called and examined as if under cross-examination.
(3) 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 that might make improper the admission of such evidence over
objection in civil actions. Hearsay
evidence may be used for the purpose of supplementing or explaining any direct
evidence but shall not be sufficient in it self to support a finding unless it
would be admissible over objection in civil actions, and irrelevant and unduly
repetitious evidence shall be excluded.
(4) Whenever the members of the Hearing Board
conducting any hearing deem it necessary to examine any person as a witness at
such hearing, the Chairperson of the Hearing Board shall issue a subpoena, in
proper form, commanding such person to appear before it at a time and place
specified to be examined as a witness.
The subpoena may require such person to produce all books, papers, and
documents in his possession or under his control, material to such a
hearing. A subpoena to appear before the
Hearing Board shall be served in the same manner as a subpoena in a civil
action, (Health and Safety Code, Sections 40840 & 40841).
(5) The Hearing Board may take official notice
of any matter that may be judicially noticed by the courts of this state.
(6) The Hearing Board shall allow interested
members of the public a reasonable opportunity to testify with regard to the
matter under consideration, and shall consider such testimony in making its
decision, (Health and Safety Code, Section 40828).
(a) After a hearing, the Hearing Board may do any
of the following: (Health and Safety
Code, Section 42309)
(1) Grant a permit denied by the Air Pollution
Control Officer.
(2) Continue the suspension of a permit suspended
by the Air Pollution Control Officer.
(3) Remove the suspension of an existing permit
invoked by the Air Pollution Control Officer pending the furnishing by the
Permit Holder of the information, analyses, plans, and specifications required.
(4) Find that no violation exists and,
reinstate an existing permit.
(5) Revoke an existing permit, if it finds any
of the following:
(A) The Permit Holder has failed to correct any
conditions required by the Air Pollution Control Officer.
(B) A refusal of a permit would be justified.
(C) Fraud or deceit was employed in the
obtaining of the permit.
(D) Any violation of this part, or of any order,
rule, or regulation of the district.
(6) Grant a variance in accordance with the
conditions as further specified in this rule.
(b) The Hearing Board shall announce its decision
in writing, served and filed within 30 days after submission of the cause by
the parties thereto and shall contain a statement of findings and the order of
the Hearing Board.
(c) No variance shall be granted unless the
Hearing Board makes all of the following findings: (Health and Safety Code, Section 42352)
(1) That the petitioner for a variance is or
will be in violation of a provision of the California Health & Safety Code
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 an arbitrary or unreasonable taking of property, or the practical
closing and elimination of a lawful business.
(3) That such closing or taking would be
without a corresponding benefit in reducing air contaminants.
(d) Upon making the specific findings set forth
in Rule 1-630(c), the Hearing Board shall prescribe requirements other than
those imposed by statute or by any rule, regulation, or order of the district
board, not more onerous, applicable to plants and equipment operated by
specified industry or business or for specified activity, or to the operations
of individual persons. However, no
variance shall be granted if the operation under the Variance,
will result in a violation of Rule 1-400 of the District. (Health and Safety Code, Section 42353)
(e) In prescribing other and different
requirements, in accordance with Rule 1-630(d), the
Hearing Board shall exercise a wide discretion in weighing the equities
involved and the advantages to the residents of the district from the reduction
of air contaminants and the disadvantages to any otherwise lawful business,
occupation, or activity involved, resulting from requiring compliance with such
requirements, (Health and Safety Code, Section 42354).
(f) The Hearing Board may require, as a
condition of granting a variance, that a cash bond, or a bond executed by two
or more good and sufficient sureties or by a corporate surety, be posted by the
party to whom the variance was granted to assure performance of any
construction, alteration, repair, or other work required by the terms and
conditions of the variance. Such bond
may provide that, if the party granted the variance fails to perform such work
by the agreed date, the cash bond shall be forfeited to the district having
jurisdiction, or the corporate surety or sureties shall have the option of
promptly remedying the variance default or paying to the district an amount, up
to the amount specified in the bond, that is necessary to accomplish the work
specified as a condition of the variance, (Health and Safety Code, Section
42355).
(g) The Hearing Board, in making any order
permitting a variance, shall specify the time during which such order shall be
effective, in no event, except as otherwise provided in Rule 1-630(h), to
exceed one year, and shall set a final compliance date, (Health and Safety
Code, Section 42358(a)).
(h) A variance may be issued for a period
exceeding one year if the variance includes a schedule of increments of
progress specifying a final compliance date by which the emissions of air
contaminants of a source for which the variance is granted will be brought into
compliance with applicable emission standards, (Health and Safety Code, Section
42358(b)).
(i) The Hearing Board may rehear a decision if a party petitions for a rehearing within 10 days after a
copy of the decision has been mailed to him, (Health and Safety Code, Section
40861).
(j) The decision shall become effective 30 days
after it is filed, unless either of the following occurs:
(1) A rehearing is granted by the Hearing
Board.
(2) The Hearing Board orders that it be made
effective sooner. (Health and Safety
Code, Section 40863)
(k) A copy of the decision shall be mailed or
delivered to the Air Pollution Control Officer, California Air Resources Board,
the U.S. Environmental Protection Agency, the petitioner and to every person
who has filed an answer or who has appeared as a party in person or by counsel
at the hearing.
RULE 1-640 - RECORD OF PROCEEDINGS
A record of all proceedings had before the
Hearing Board shall be made. All or any
part of this record may be requested by any party to the proceedings or by any
interested public citizen. Such requests
shall be in writing and a reasonable fee may be charged, not to exceed the
actual cost of providing the written transcript or tape recording copy.
RULE 1-650 - APPEAL OF DECISION
(a) Judicial review may be had of a decision of
the Hearing Board by filing a petition for a writ of mandate in accordance with
the provisions of the Code of Civil Procedure.
Except as otherwise provided in this Rule, any such
petition shall be filed within 30 days after the decision has been mailed. The right to petition shall not be affected
by the failure to seek a rehearing before the Hearing Board, (Health and Safety
Code, Section 40864(a).
(b) The complete record of the proceedings,
or such parts thereof as are designated by the petitioner, shall be prepared by
the Hearing Board and shall be delivered to the petitioner within 30 days after
a request therefore by him, upon payment of the fee specified in Rule 1-640,
(Health and Safety Code, Section 40864(b)).
(c) The complete record includes the pleading,
all notices and orders issued by the Hearing Board, the final decision, a
transcript of all proceedings, the exhibits admitted or rejected, the written
evidence and any other papers in the case, (Health and Safety Code, Section
40864(c)).
(d) Where the petitioner, within 10 days after
the last day on which a rehearing can be ordered, requests the Hearing Board to
prepare all or any part of the record, the time within which a petition may be filed
shall be extended until five days after its delivery to him. The Hearing Board may file with the court the
original of any document in the record in lieu of a copy thereof, (Health and
Safety Code, Section 40864(d)).
(e) In any proceeding pursuant to Rule 1-650, the
court shall receive in evidence any order, rule, or regulation of the district
board, any transcript of the proceedings before the Hearing Board, and such
further evidence as the court, in its discretion, deems proper, (Health and
Safety Code, Section 40865).