Variances


Understanding Variances

If a facility cannot comply with District air quality rules or permit conditions, it has the option to apply for a variance (temporary enforcement relief). If granted, a variance allows a facility to operate in violation of a District rule without being subject to penalties while it takes steps to come into compliance with the rule. Only the Hearing Board —not the District—may grant a variance.

When is a variance appropriate?

In making a decision, the Hearing Board considers the District rule that has been or will be violated, the severity of the violation, technical problems in achieving compliance with emissions standards, and the advantages and disadvantages to the public and the facility involved.

To grant most types of variances, the Hearing Board must decide that all of the following findings are true:

  • The facility is or will be in violation of District rules.
  • The need for a variance is beyond the facility’s reasonable control.
  • Requiring compliance would cause an unreasonable taking of property (such as financial harm to a business), place a burden on an essential public service, or close a business.
  • The reduction in air pollution resulting from a shutdown would not justify the harm to the business or public service.
  • The facility considered curtailing operations.
  • Emissions will be reduced to the maximum extent feasible.
  • The facility will monitor and report emission levels.  

What is the Hearing Board not authorized to do?

The Hearing Board does not have jurisdiction over Notices of Violation issued by the District. It cannot erase past violations or settle penalties for current violations.

Variances cannot be granted to allow:

  • Relief from the consequences of a past violation;
  • A public nuisance (such as nuisance odors, threats to public health, or damage to property);
  • Construction or operation of a process or equipment without a permit;
  • Violations of the California Health & Safety Code (except for section 41701—visible emissions); or
  • Violations of a statewide Air Toxics Control Measure (ATCM) or federal National Emission Standards for Hazardous Air Pollutants (NESHAP).   

What if I need assistance? 

The District Business Assistant is available to assist all businesses in completing the petition forms and developing compliance schedules (also called increments of progress).

Does the Hearing Board have special considerations for small businesses? 

Yes. For small businesses that emit 10 or fewer tons per year of air contaminants, the Hearing Board considers reasons for claimed ignorance of the rules and the financial ability to comply with them. If you are a small business, come to the hearing prepared to explain what qualifies you as a small business (such as annual revenue and number of employees).  

What if I am a Title V facility?

A facility subject to a federal Title V operating permit may be granted a variance, but the variance will not protect the facility from enforcement by the federal EPA or citizen suits under the federal Clean Air Act, as the EPA does not recognize variances granted under California law. 

How can I show a situation is beyond my reasonable control? 

To show the Hearing Board that you or your company took appropriate actions, you can include:

  • A timeline showing when you learned of the problem and what you have done and will be doing to solve it.
  • A list of alternate products you have tested.
  • Names of companies you have contacted. 

Need more information?

Learn more about Hearing Board meetings, including public participation. 

Compliance Division Contact

For general questions, please contact the District Hearing Board Representative by phone at (858) 586-2650 or by email at apcdcomp@sdapcd.org.  

For procedural questions, please contact the Hearing Board Clerk by email at apcdvariance@sdapcd.org or by phone at (858) 245-8249.