What is a variance?

A variance is an administrative exception to a law. A variance allows a company to continue operating in violation of South Coast AQMD rules without penalty while it takes appropriate steps to meet air pollution control requirements. Variances can be granted only by the Hearing Board, not by South Coast AQMD inspectors or engineers. 

There may be good reasons why a company can not immediately comply with air pollution control laws. But operating outside the law can result in a fine, or even the shutdown of an operation. The only legal way to operate while working toward a solution without being subject to penalties is to obtain a variance. 

Basis for granting or denying a variance

The Hearing Board must make six findings on a case before a variance can be granted (Section 42352, California Health & Safety Code). 

• That the petitioner for a variance is, or will be, in violation of Section 41701 or of any rule, regulation, or order of the district. 

• 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. 

• That the closing or taking would be without a corresponding benefit in reducing air contaminants. 

• That the applicant for the variance has given consideration to curtailing operations of the source in lieu of obtaining a variance. 

• During the period the variance is in effect, that the applicant will reduce excess emissions to the maximum extent feasible. 

• During the period the variance is in effect, that the applicant will monitor or otherwise quantify emission levels from the source, if requested to do so by the district, and report these emission levels to the district pursuant to a schedule established by the district. 

Additional information the Hearing Board must consider in making these six findings is provided in South Coast AQMD Regulation V. 

Types of Variances 

There are four types of variances: 

1. Emergency - When a situation develops without warning (such as an equipment breakdown, power failure, or similar event that could cause a violation of South Coast AQMD rules) an emergency variance is required. The Hearing Board may grant an emergency variance without public notice or hearing upon a finding of good cause. The Hearing Board is required by law to find good cause to hold a hearing to consider granting an emergency variance.   That means there has to be a good reason why the company could not have filed its petition in time for the hearing to be announced to the public.

2. Interim - For immediate coverage other than for emergencies, an interim variance--which does not require a public notice period--can be obtained to cover the time until a hearing for a short or regular variance can be held. An interim variance may be requested at the same time either a short or regular variance is requested. The Hearing Board is required by law to find good cause to hold a hearing to consider granting an interim variance. That means there has to be a good reason why the company could not have filed its petition in time for the hearing to be announced to the public. 

3. Short - Companies that can comply with South Coast AQMD rules within 90 days or less should request a short variance. A short variance requires a 10-day posted notice, plus five days processing time before the request can be heard. 

4. Regular - Companies that need more than 90 days to comply with South Coast AQMD rules should request a regular variance. The variance period is usually one year or less, but can be longer if a specific compliance schedule is set. An application for a regular variance must be filed at least 45 days before the request can be heard. 

How to request a variance or other Hearing Board action

To ask for a variance, appeal a permit, or appeal an emission reduction credit denial, you must file a petition form, as well as pay applicable fees.

Petition forms may be accessed from the Help & Instructions page of the Hearing Board section of the South Coast AQMD website. Alternatively, petition packets can be obtained in-person at the Clerk of the Boards' Office. If you require assistance in accessing petition forms please contact the Clerk's Office at 909-396-2500.
 
If you have not appeared previously before the Hearing Board and are requesting a variance, it is strongly encouraged that you view the instructional video "What Happens at a Variance Hearing?" which can be accessed at the link listed below.

After you return the completed petition form and filing fee, the Clerk will contact you to schedule a hearing date and time. The Hearing Board meets at South Coast AQMD Headquarters in Diamond Bar. You cannot file for a hearing over the Internet or by facsimile. 

The Hearing Board is required by law to give public notice of hearings. You will receive a copy of the hearing notice.

South Coast AQMD Rule 303 (current fees (PDF)) provides a detailed description of all Hearing Board fees. At the time you apply for a variance or other action, you will be charged a "filing fee". Small businesses (DOC) are eligible for a discount on some fees. 

If the required public notice must be printed in a newspaper (regular variance and appeals), you will also be charged for the cost of the publication ("publication fee"). 

If your variance is granted and will result in excess emissions, there will be an "excess emission fee" based on the weight and opacity (smokiness) of the excess emissions discharged during the period the variance is in effect. South Coast AQMD staff is available to help determine the amount of excess emissions to be billed. For assistance, call the Hearing Board Liaison at 909-396-2000. 

What happens at a variance hearing?

(Video - .wmv) 
If you have not appeared previously before the Hearing Board and are requesting a variance, you are strongly encouraged to view the instructional video "What Happens at a Variance Hearing?". 

When you come to your hearing, be prepared. Bring all relevant information to form the basis of the six findings listed earlier. Also, bring: 

• Names and telephone numbers of companies you have contacted to help you to come into compliance; 

• Dates by which equipment can be installed; and 

• A plan for reducing emissions until then.

You may choose to seek the services of an attorney in presenting your case. If you plan to represent yourself, be sure to know what rules that are being violated, the excess emissions that have or will result, and how and when you plan to come into compliance. If possible, bring any technical experts who are assisting in the resolution of the problem to the scheduled hearing. 

Remember to bring copies of your current permits. If written material is to be presented to the Board, eight (8) copies must be submitted to the Clerk. 

Variance hearings are like courtroom proceedings. Both the variance petitioner and the South Coast AQMD , represented by the Office of the General Counsel, present evidence through witnesses who are placed under oath. Witnesses may be cross-examined by the opposing side and questioned by Hearing Board members.  You are encouraged to communicate with General Counsel, (909) 396-3400, well in advance of the hearing. 

Among other issues, the Hearing Board attempts to discover why and how the rule is being violated, whether the violation could have been prevented, what is being done to correct the violation, when corrections will be completed, what will happen to the business if it is forced to shut down, how the violation affects the public, and what efforts can be made to reduce excess emissions to the maximum extent feasible. 

South Coast AQMD might oppose a variance or suggest certain limiting conditions. The public is invited to provide testimony to present information relevant to the case. Board members publicly deliberate and reach a decision on each case.