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Application Variance BEFORE THE HEARING BOARD

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Variance Application Form Instructions
Requests for variances from Bay Area Air Quality Management District (BAAQMD) air
pollution regulations should be submitted to the Hearing Board of the BAAQMD using the
attached form.
The Hearing Board is an independent quasi-judicial body created by California State law with
the sole authority to grant variances from air quality regulations. After your application has
been reviewed by the Hearing Board, you and the Bay Area Air Quality Management District
staff will appear in a public hearing before the Hearing Board to present your respective
positions.
Proper completion of the Application will help the Hearing Board fully consider your request
and will help you prepare for the hearing. Any Application that is not substantially complete
shall not be accepted by the Hearing Board Clerk.
FILING STEPS:
1. Properly complete the Application form. The form is available on the website at
www.baaqmd.gov/publications/forms. You may complete the form on your computer and
submit the copy you print on your printer.
2. If you need more space and attach additional pages, properly identify the numbered section
of the Application form that they support.
3. SMALL BUSINESSES: Review the Small Business Considerations section of the
Application for Variance (Page 12, Nos. 21 and 22). If you meet the requirements, complete
and sign the Small Business Declaration (Page 13).
4. Submit the filing fee with the Application (or contact the Clerk to confirm overnight payment)
and make check payable to BAAQMD. See District Regulation 3, Schedule A- Hearing
Board Fees.
5. Mail or otherwise deliver an original and nine copies of the Application and all other papers
to:
Marcy Hiratzka
Clerk of the Hearing Board
Bay Area Air Quality Management District
375 Beale Street, Suite 600
San Francisco, CA 94105
Clerk of the Hearing Board contact phone # for questions: (415) 749-5073.
[You May Attach Additional Pages If Necessary] Page 1 of 13
BEFORE THE HEARING BOARD
OF THE
BAY AREA AIR QUALITY MANAGEMENT DISTRICT
STATE OF CALIFORNIA
APPLICATION FOR VARIANCE
In the Matter of the Application of
_______________________________________
(Applicant: Insert business or organization
name above)
For a Variance from Regulation(s):
_______________________________________
(Applicant: Insert Regulations in form:
Regulation_____, Rule_____, Section_____)
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DOCKET NO. ___________________
(Assigned by Clerk)
TYPE OF VARIANCE REQUESTED (see Page 3 for further information)
SHORT INTERIM REGULAR GROUP PRODUCT
VARIANCE PERIOD REQUESTED (see Page 10, No. 20):
From:_____________________ To__________________________
TOTAL NUMBER OF (CALENDAR) DAYS IN VARIANCE PERIOD: __________________
(Note: Variance relief will not be granted for any period preceding the date of filing of the Application for
Variance.)
[ALL DOCUMENTS FILED WITH THE CLERK’S OFFICE BECOME PUBLIC RECORD]
[You May Attach Additional Pages If Necessary] Page 2 of 13
SUMMARY PAGE
NAME OF APPLICANT:________________________________________________________________________
FACILITY ADDRESS: _____________________________________
City, State, Zip: _____________________________________
PLANT # or G #:__________________________ SOURCE
#(S):___________________________
`
CONTACT: Name, title, company (if different than Applicant), address, and phone number of persons authorized
to receive notices regarding this Applicant (no more than two authorized persons).
Zip Zip
( ) Ext. ( ) Ext.
Fax ( ) Fax ( )
E-mail E-mail
California Bar #___________________________ California Bar #_________________________
BRIEFLY SUMMARIZE EQUIPMENT/ACTIVITY SUBJECT TO THIS VARIANCE REQUEST:
LIST DISTRICT REGULATIONS, RULES AND PERMIT CONDITIONS SUBJECT TO THIS VARIANCE
REQUEST:
SUMMARY OF TOTAL EXCESS EMISSIONS:
Net Emissions After Mitigation (lbs/day or Opacity %)
[You May Attach Additional Pages If Necessary] Page 3 of 13
TYPE OF VARIANCE REQUESTED:
NOTE: The date of filing of the Application for Variance is the earliest allowed starting date for a
variance. State law [California Health and Safety Code (H&SC)] imposes requirements on the amount
of time to be allowed for notification of the public and air quality regulatory agencies before a hearing
on a variance request can be held by the Hearing Board. Review the following descriptions of the
types of variances, and select that which is most appropriate for your situation:
SHORT: If compliance with the District Rule(s) can be achieved in 90 (calendar) days or less,
request a short-term variance. [10-day notice required to Bay Area Air Quality Management District’s
Air Pollution Control Officer (APCO), Applicant, California State Air Resources Board (ARB), Federal
Environmental Protection Agency (EPA).]
INTERIM: If Applicant requires immediate relief for the period between the date of filing of variance
application and the date of the decision on the matter by the Hearing Board, request an interim
variance. An interim variance is recommended if significant excess emissions will occur between the
date of filing and the date of the fully noticed hearing by the Hearing Board. If an interim variance is
required, a hearing will be scheduled as soon as possible. The period of an interim variance shall not
exceed 90 days. If an interim variance is requested, Applicant must also request a short or a regular
variance on the same application.
REGULAR (OR LONG-TERM): If compliance with District Rule(s) will take more than 90 (calendar)
days, request a regular variance. (30-day published notice required. 30 days notice to APCO,
Applicant, ARB.)
GROUP: If non-compliance with District Rule(s) by each individual Applicant comprising a group is
based on issues of law and fact common to each Applicant, request a group variance. (Noticing
requirements as for Short or Regular variances depending on period of the Group variance.)
PRODUCT: Any person who manufactures a product may petition the Hearing Board for a product
variance from a District Rule or Regulation. A product variance shall be granted only when a variance
is necessary for the sale, supply, distribution, or use of the product. (Noticing requirements as for
Short or Regular variances depending on period of the product variance.)
BAAQMD Regulation 1-402: “Status of Violation Notices During Variance Proceedings: Where a
person has applied for a variance, no notices shall be issued during the period between the date of
filing for the variance application and the date of decision by the Hearing Board for violations covered
by the variance application. However, during the period between the date of the filing for a variance
and the date of decision by the Hearing Board, evidence of additional violations shall be collected and
duly recorded. Where the variance is denied, evidence of violations collected between the filing date
and decision date shall be reviewed and a notice of violation issued for violations occurring during that
period shall be served upon said person. Where the variance is granted, no notice of violation shall
be issued for violations occurring during that period except in extraordinary circumstances as
determined by the APCO.”
NOTE: The Environmental Protection Agency (EPA), a federal agency, does not recognize
California’s variance process, which is established by state law. The EPA considers facilities
operating under a variance to be operating in violation of District regulations. Facilities that are in
violation and then obtain a variance are advised that the EPA can independently pursue legal action
based on federal law against the facility for continuing to be in violation.
[You May Attach Additional Pages If Necessary] Page 4 of 13
1. Briefly describe the type of business and processes at your facility (Attach a map showing location)
See Small Business Considerations on Page 12, No. 21 before answering the following question:
Is Applicant a “Small Business” as defined by Health & Safety Code Section 42352.5(b)(1)?
Yes No
Is Applicant a “Major Source” as defined by the applicable provisions of the Federal Clean Air Act, 42 U.S.C.
Sec. 7661(2)? Yes No
Is Applicant a “public agency” as defined in Health & Safety Code Section 42352(b)?
Yes No
2. Describe the equipment/activity for which a Variance is being sought (type of equipment/activity, source
numbers, purpose, why is it essential to your business). Attach a copy of the BAAQMD Permit to Operate or
Authority to construct for the subject equipment and/or facility so long as such Permit is less than 50 pages. If
the Permit is greater than 50 pages, all portions relevant to the Application shall be provided.
Is there a regular maintenance and/or inspection schedule for this equipment? Yes No
If Yes, how often?
What was the date of the last maintenance and/or inspection?____________
Are maintenance records available? Yes No
Was there any indication of problems? Yes No
[You May Attach Additional Pages If Necessary] Page 5 of 13
APPLICANT’S PETITION FOR REQUIRED FINDINGS
California Health and Safety Code (H&S Code) 42352 requires the Hearing Board to make six findings for a
variance to be granted. In this Section, Applicant must provide sufficient information to enable the Hearing
Board to make a decision on each of the six findings:
Finding # 1: That the Applicant for a variance is, or will be, in violation of Health and Safety Code
Section 41701 or of any rule, regulation or order of the District.
3. List all District Regulations, Rules, and/or Permit Conditions from which Applicant is seeking variance relief.
Briefly explain how Applicant is or will be in violation of each rule or condition. If Applicant is requesting
relief from Regulation 6, and the excess opacity during the variance period will reach or exceed 40%
(Ringelmann 2), Applicant should also request relief from California Health and Safety Code Section 41701.
Regulation, Rules, Permit Conditions
Explanation
4. Has the District issued any Notice(s) of Violation (NOVs) to the Applicant concerning the subject of this
variance request? Yes No If “Yes”, please attach copies of the NOVs.
5. Has the equipment in question or any other equipment at this facility been under variance protection during
the last year? Yes No
Docket #
Variance Period
Nature of Emission
Regulation/Rule/Section
6. List all NOV(s) issued to equipment at the entire facility during the previous 12 months:
Date of Notice
NOV #
Nature of Emission
Regulation/Rule/Section
[You May Attach Additional Pages If Necessary] Page 6 of 13
Finding # 2: That, due to conditions beyond the reasonable control of the Applicant, requiring
compliance would result in either (A) an arbitrary or unreasonable taking of property, or (B) the
practical closing and elimination of a lawful business.
7. Describe, in detail, the event leading to the need for a variance:
8. Has the Applicant received any complaints from the public regarding the operation of the subject equipment
or activity within the last year? Yes No
Date of Complaint
Number of
Complaints
Nature of Complaint
9. Explain why it is beyond Applicant’s reasonable control to comply with the Regulation(s) and/or Permit
Condition(s):
[You May Attach Additional Pages If Necessary] Page 7 of 13
10. When and how did Applicant first become aware that it was not in compliance with the Rule(s) and/or permit
condition(s)?
11. What actions has Applicant taken since that time to achieve compliance with the Regulation(s) or permit
condition(s)?
12. What would be the harm to Applicant’s business if the variance were not granted?
Economic losses: $_________________
Number of Employees laid off (if any):_________
Provide detailed information regarding economic losses, if any, (anticipated business closure, breach of
contracts, hardship on customers, layoffs and/or similar impacts).
[You May Attach Additional Pages If Necessary] Page 8 of 13
Finding # 3: That the closing or taking would be without a corresponding benefit in reducing air
contaminants.
13. List the estimated or measured excess emissions or excess opacity, if any, on a daily basis, or over a more
appropriate period of time (For example: duration of requested variance period, hourly basis). Also list
emissions reductions proposed by Applicant as mitigation. If no excess emissions or opacity are expected
during the variance period, go to No. 16.
Pollutant
(A)
(B)
(C)**
Estimated
Excess
Emissions
(lbs/day)
Reduction
Due to
Mitigation
(lbs/day)
Net
Emissions
After
Mitigation
(lbs/day)
**Column A minus Column B = Column C
14. Show the calculations used to determine the excess emissions listed in No. 13. Are the values in No. 13
based on measurements___________ or estimates_________?
15. Do the additional emissions during the variance period contain any Toxic Air Contaminants (TACs)
[pursuant to Health and Safety Code Section 39655] or odorous substances? Yes No
If Yes, list the TACs or odorous substances and approximate amounts:
16. List measured or estimated annual emissions from entire facility for each pollutant which is the subject of
this variance application:
Pollutant
Total Emissions from Entire Facility (tons/year)
[You May Attach Additional Pages If Necessary] Page 9 of 13
Briefly explain the basis for these facility emission values:
Finding # 4: That the Applicant for the variance has given consideration to curtailing operations of
the source in lieu of obtaining a variance.
17. Explain why the Applicant cannot curtail or terminate operations in lieu of obtaining a variance:
Finding # 5: During the period that the variance is in effect, the Applicant will reduce excess
emissions to the maximum extent feasible.
18. Explain how Applicant plans to reduce (mitigate) excess emissions during the variance period to the
maximum extent feasible, or why reductions are not feasible (mitigation may include reductions at other
sources):
Finding # 6: During the period the variance is in effect, the Applicant will monitor or otherwise
quantify emission levels from the source, if requested to do so by the District, and report these
emissions levels to the District pursuant to a schedule established by the District.
19. Has the District requested that the Applicant monitor or otherwise quantify emissions during the variance
period? Yes No
If Yes, please describe how Applicant will do so:
[You May Attach Additional Pages If Necessary] Page 10 of 13
APPLICANT’S PLAN FOR ACHIEVING COMPLIANCE:
20. How does the Applicant intend to achieve compliance with the Rule(s) and/or permit condition(s)? Include a
detailed description of any equipment to be installed and/or modifications or process changes to be made, a
list of the dates by which the actions will be completed, and an estimate of total costs:
Detailed Description:
Schedule Of Increments Of Progress:
Increment Description
Completion Date
Applicant may propose operating conditions for the variance period which may be considered by the Hearing
Board in its evaluation of the variance application.
PROPOSED OPERATING CONDITIONS:
[You May Attach Additional Pages If Necessary] Page 11 of 13
Variance Period Requested: From:_____________________ To:________________________
Total Number of (Calendar) Days in Variance Period: ___________
(Note: Variance relief will not be granted for any period preceding the date of filing of the Application for Variance.)
Date of Application: _________________________________
Completed By: ______________________________________ Title:____________________________
(Print Name)
The following verification must be signed by the owner, manager, director or other responsible party of
the plant, business, factory, or agency requesting the Variance.
VERIFICATION
I, the undersigned, hereby declare under the penalty of perjury, under the laws of the State of California, that I
have read the foregoing document, including attachments and the items therein set forth, and that I know its
contents, are true.
Dated at __________________________________, on ____________________
Signature ___________________________________________
Print Name___________________________________________
Title ___________________________________________
[You May Attach Additional Pages If Necessary] Page 12 of 13
SMALL BUSINESS MATTERS
Small Business Assistance: Assistance in completing the Application for Variance and in developing a
compliance schedule is available to small businesses. Contact the office of the Hearing Board Clerk at (415)
749-5073 for assistance.
Small Business Considerations in the Granting of Variances by the Hearing Board: California Health &
Safety Code Section 42352.5 directs the Hearing Board to consider additional factors when making the required
Findings for the granting of a variance to a small business.
21. Definition of Small Business for purposes of special considerations:
Is Applicant a manufacturing or wholesaling business with fewer than 100 employees?
Yes No Number of Employees: ________________
OR
Is Applicant a retailing or service business with annual sales under $5 million?
Yes No Annual Sales: $________________
AND
Does Applicant emit 10 tons or less per year of air contaminants? Yes No
If the Applicant satisfies the above conditions, the Hearing Board will consider the following special factors:
(A) In determining the extent to which the petitioner took timely actions to comply or seek a variance, the
Hearing Board shall make specific inquiries into, and shall take into account, the reasons for any
claimed ignorance of the requirement from which a variance is sought.
(B) In determining the extent to which the petitioner took reasonable actions to comply, the Hearing Board
shall make specific inquiries into, and shall take into account, the petitioner’s financial and other
capabilities to comply.
(C) In determining whether or not the burden of requiring immediate compliance would be unreasonable, the
Hearing Board shall make specific inquiries into, and shall consider, the impact on the petitioner’s
business and the benefit to the environment which would result if the petitioner is required to
immediately comply.
Reduced Filing and Excess Emission Fees for Small Businesses:
Bay Area Air Quality Management District Regulation 3 allows reduced filing fees and excess emission fees to be
charged to small businesses. The definition of a small business for the purpose of these reduced fees is different
than the definition used by the State of California for the special considerations listed above.
22. Definition of Small Business for purposes of reduced filing and excess emission fees (District
Regulation 3, Section 209; Both the number of employees AND gross annual income must apply);
Does Applicant have no more than 10 employees?
Yes No Number of Employees: ________
Does Applicant have a gross annual income of no more than $600,000?
Yes No Gross Annual Income: $______________
Is Applicant not affiliated with a non-small business? Yes No
[You May Attach Additional Pages If Necessary] Page 13 of 13
Declaration Regarding Small Business
1. I am an officer, partner or owner of the Applicant herein, or a duly authorized agent of the Applicant
authorized to make the representations set forth herein.
2. The Applicant is a business that meets the following definitions of Small Business (check those that are
applicable):
Small Business for Purposes of Special Considerations (No. 21) _______
Small Business for Purposes of Filing and Excess Emission Fees (No. 22) _______
I declare under penalty of perjury that the foregoing is true and correct.
Executed on___________________________, at __________________________________, California
_____________________________________ ___________________________________
Signature Print Name
_
Position with Company
Revised 4/4/19
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Application Variance BEFORE THE HEARING BOARD

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Completed 27 February 2020

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