2005 California Health and Safety Code Sections 40500-40516 Article 7. Variances and Permits

40500.  (a) In accordance with the purposes of this chapter as set
forth in Section 40402, the south coast district board shall
establish rules and regulations for the granting of variances by the
hearing board from Section 41701 or from any standards for the
discharge of air contaminants that the south coast district may
adopt.  The south coast district board shall not limit the
opportunity for any person to petition for a variance or for the
hearing board to hear and grant variances beyond the limitations
expressly stated in Section 42350.
   (b) The rules and regulations shall include a schedule of fees,
which shall be based upon the number of sources to which the
variances apply and the extent that the amount of emissions from the
sources exceeds the required standards, for the filing of
applications for variances.  All applicants shall pay the fees
required by the rules and regulations, including, notwithstanding
Section 6103 of the Government Code, an applicant that is a publicly
owned public utility.  A variance may be granted by the hearing board
after a public hearing and upon filing, with appropriate fees, of a
variance petition with the hearing board.
40500.1.  (a) Except as required to comply with the Clean Air Act
(42 U.S.C. Sec. 7401 et seq.), fees assessed on stationary sources in
the south coast district pursuant to Sections 40500 and 40510 shall
not exceed, for any fiscal year, the actual costs of district
programs pursuant to this article for the immediately preceding
fiscal year with an adjustment not greater than the change in the
California Consumer Price Index, for the preceding calendar year,
from January 1 of the prior year to January 1 of the current year, as
determined by the Department of Industrial Relations.
   (b) Unless specifically authorized by statute, the total amount of
all of the fees collected by the south coast district from
stationary sources of emissions in the 1995-96 fiscal year, and in
each subsequent fiscal year, shall not exceed the level of
expenditure in the 1993-94 fiscal year, except that the total fee
amount may be adjusted annually by not more than the percentage
increase in the California Consumer Price Index, as specified in
subdivision (a).
   (c) Any new state or federal mandate that is applicable to the
south coast district on and after January 1, 1994, shall not be
subject to this section.
40500.5.  (a) Notwithstanding Section 40500, the south coast
district board may prohibit the granting of variances by the hearing
board from the provisions of a market-based incentive program adopted
pursuant to Section 39616 that establish procedures for assessing
emissions during periods when monitoring or reporting systems are not
operating as required.
   (b) The south coast district board may prohibit the granting of
variances by the hearing board from the minimum federal requirements
for new source performance standards, or for national emissions
standards for hazardous air pollutants, under Sections 7411 and 7412
of Title 42 of the United States Code, unless the district rule at
issue is more stringent than the federal requirement.  The south
coast district board shall not prohibit the granting of a variance if
the petitioner for the variance has obtained a waiver from the
Environmental Protection Agency of the federal requirement at issue
and the variance would be consistent with the waiver.
40501.  (a) The south coast district board shall appoint a hearing
board, or may authorize the board of supervisors of each county
included, in whole or in part, within the south coast district to
appoint a hearing board in accordance with Article 1 (commencing with
Section 40800) of Chapter 8.  The hearing board shall have the
powers and duties vested in the hearing board of a county district,
except as modified in this article.  In addition, the hearing board
has the same powers and duties with respect to plans for the control
of emissions of air contaminants required by a district rule or
regulation as it has for permits for authority to construct or
operate any article, machine, equipment, or other contrivance
required by the south coast district board.
   (b) The granting of variances shall be processed by the hearing
board in the county in which the variance is applicable unless the
applicant and the hearing board agree otherwise, and shall be granted
in conformance with the rules and regulations of the south coast
district, and, except as modified by this article, with Article 2
(commencing with Section 42350) of Chapter 4 of Part 4, with respect
to the granting of variances or the appeal of decisions.
40501.1. (a) On or before July 1, 1992, the south coast district
board shall retire the current hearing board and appoint in its place
a new hearing board with the following membership and
qualifications:
   (1) One member admitted to the practice of law in this state, with
two or more years of practice, preferably with litigation
experience.
   (2) One member who is an engineer with a bachelor's degree from an
accredited college in chemical, mechanical, environmental,
metallurgical, or petroleum engineering, with two or more years of
practical experience, and preferably who is a professional engineer
registered pursuant to the Professional Engineers Act (Chapter 7
(commencing with Section 6700) of Division 3 of the Business and
Professions Code).
   (3) One member who is a licensed physician, with two or more years
of practical experience, preferably in the fields of epidemiology,
physiology, toxicology, or related fields.
   (4) Two public members.
   (b) In recruiting the hearing board members, the district board
shall engage in positive outreach throughout the south coast
district.  In making these appointments, the district board shall
receive recommendations of an advisory committee whose responsibility
shall be to review and make recommendations to the appropriate
district board committee, which in turn shall finalize
recommendations on which the district board shall act in making
appointments to the hearing board.  The advisory committee shall be
composed of one representative appointed by each of the Counties of
Los Angeles, Orange, Riverside, and San Bernardino, and the City of
Los Angeles.  Members of the advisory committee shall be appointed
for one-year terms.  Recommendations of the advisory committee shall
not be binding on the district board.
   (c) When the south coast district board first appoints the new
hearing board, the attorney and engineer members shall serve terms of
two years each and the medical and public members shall serve terms
of three years each.  Thereafter, each member's term shall be three
years.
   (d) In the temporary absence of a member and that person's
alternate, the hearing board chair, or the chair's designee, may
appoint a qualified alternate or any former hearing board member to
serve for a period of up to three months plus that period of
additional time required to conclude proceedings on which the
temporary member deliberated.
   (e) The district budget shall have a line item to provide
necessary staff and other support dedicated to the hearing board.
The services provided by that staff shall include assistance to the
public and small business as set forth in subdivision (b) of Section
40448.
40501.3.  (a) Notwithstanding any other provision of this division,
the south coast district board may authorize, by resolution, the
holding of single-member hearings by the chairman of the hearing
board and any other member or alternate designated by the hearing
board, under the conditions specified in this section.
   (b) Single-member hearings shall be authorized, when stipulated to
by the executive officer and the petitioner, only for the purpose of
hearing petitions for emergency variances pursuant to Section
42359.5, interim variances pursuant to Section 42351, short variances
and modifications of a schedule of increments of progress of a
duration not to exceed 60 days pursuant to Section 40825, interim
authorizations pursuant to Section 42351.5, and modifications of
variances pursuant to Section 42356 which do not modify the final
compliance date.
   (c) The procedure for conducting single-member hearings shall be
the same as for hearings before the full board and all legal
requirements, including notice requirements, findings, and
conditions, shall apply, except that the single member may take
action on any matter properly before the member.
   (d) A single-member hearing decision may be contested by (1) any
person who, in person or through a representative, appeared at the
single-member hearing, or (2) any person who informed the air
pollution control officer of the nature of his concern prior to the
hearing, or (3) any person who for good cause was unable to do either
(1) or (2).  If a decision is contested under this subdivision, the
matter shall be reheard by the full board within 10 days of the
decision.  The clerk of the hearing board shall notify the
petitioner, the executive officer, and all members of the public who
appeared at the hearing of any contest of a decision.  The notice
shall be in writing and sent by first-class mail, postage prepaid, to
the address supplied by the person who appeared, unless the right to
the notice is affirmatively waived on the record.
40502.  The revenues from the schedule of fees adopted by the south
coast district board for the filing of applications for variances
shall be collected by the hearing board at the time that the
application is filed.  Each county hearing board appointed pursuant
to subdivision (a) of Section 40501 shall be reimbursed from these
fees for its cost in administering the rules and regulations for the
issuance of variances established by the south coast district board.
The revenues from these fees shall be transmitted by the hearing
board to the south coast district board at such time as the south
coast district board may prescribe.
40503.  (a) The south coast district hearing board, in determining
whether the petitioner has presented evidence sufficient to make the
findings specified in subdivision (a) of Section 42352, shall
consider, in addition to any other relevant factors, both of the
following:
   (1) In determining whether conditions exist that are beyond the
reasonable control of the petitioner, the hearing board shall
consider whether the petitioner took actions to comply or seek a
variance, that were timely and reasonable under the circumstances.
In so doing, the hearing board shall consider actions taken by the
petitioner since the adoption of the rule from which the variance is
sought.
   (2) In determining whether requiring compliance would result in
either an arbitrary or unreasonable taking of property or the
practical closing and elimination of a lawful business, the hearing
board shall consider whether an unreasonable burden would be imposed
upon the petitioner if immediate compliance is required.
   (b) (1) As used in this subdivision, "small business" means a
business that is independently owned and operated and meets all of
the following criteria:
   (A) The number of employees is 10 or less.
   (B) The total gross annual receipts are five hundred thousand
dollars ($500,000) or less.
   (C) Emits not more than four tons per year of any nonattainment
air contaminant or its precursor.
   (2) If the petitioner is a small business, the hearing board shall
consider the factors specified in subdivision (a) in the following
manner:
   (A) In determining whether the petitioner took timely actions to
comply or seek a variance, the hearing board shall make specific
inquiries into the reasons for any claimed ignorance of the
requirement from which a variance is sought.
   (B) In determining whether the petitioner took reasonable actions
to comply, the hearing board shall make specific inquiries into the
petitioner's financial and other capabilities to comply.
   (C) In determining whether the burden of requiring immediate
compliance would be unreasonable, the hearing board shall make
specific inquiries into, and shall balance, the impact to the
petitioner's business and the benefit to the environment that would
result if the petitioner is required to immediately comply.
   (c) Where the petitioner is a governmental agency, public
district, or any other governmental or public entity, in determining
whether an unreasonable burden would be imposed, the hearing board
shall consider any effects of requiring immediate compliance on the
availability of essential public services.
40504.  The south coast district shall work with those persons
granted variances to reduce emissions of air contaminants from their
operations.
40505.  Any form developed by the south coast district for use in
filing an application for variance shall contain a notice to small
businesses of the availability of assistance in filling out the form,
developing compliance schedules, and obtaining low-cost financing
for air pollution control equipment to meet its regulations.
40506.  (a) In accordance with the purposes of this chapter as set
forth in Section 40402, the south coast district board shall adopt
rules and regulations for the issuance by the south coast district
board of permits authorizing the construction, alteration,
replacement, operation, or use of any article, machine, equipment, or
other contrivance for which a permit may be required by the south
coast district board.
   (b) The rules and regulations shall include a schedule of fees for
the filing of applications for permits and for the modification,
revocation, extension, or annual renewal of permits.  All applicants,
including, notwithstanding Section 6103 of the Government Code, an
applicant that is a publicly owned public utility, shall pay the fees
required by the rules and regulations.
40506.1.  (a) The south coast district shall establish a
consolidated permit which serves as (1) an authority to build, erect,
alter, or replace an article, machine, equipment, or contrivance
which may cause the issuance of air contaminants, and (2) an
authority to operate or use that article, machine, equipment, or
contrivance.
   (b) The district shall establish postconstruction enforcement
procedures adequate to ensure that sources are built, erected,
altered, replaced, operated, or used in the manner required by the
consolidated permits.
40506.2.  The south coast district may establish a program to
certify private environmental professionals to prepare permit
applications.  The program shall provide for all of the following:
   (a) Certification by the district of private environmental
professionals who meet minimum qualifications established by the
district and who successfully complete a district training program in
the methods of preparing permit applications.  The training program
shall include a description of permit requirements established by
district rules as well as any additional requirements established by
the district for applications submitted by certified private
environmental professionals.
   (b) Expedited review by district personnel of permit applications
that, at the option and expense of the permit applicant, are prepared
by a certified private environmental professional.
   (c) Full district review of a sample of permit applications
prepared by certified private environmental professionals to
determine whether or not district requirements for preparation of
applications have been followed.
   (d) Decertification of any certified private environmental
professional found by the district to have done any of the following:
   (1) Knowingly or negligently submitted false data as part of a
permit application.
   (2) Prepared any permit application in a manner contrary to
district requirements.
   (3) Prepared a permit application where the person has a financial
conflict of interest as defined in guidelines to be adopted by the
district.
40507.  The south coast district board, in making any order granting
a permit, may specify the time during which the order shall be
effective and may require the payment of fees established by the
south coast district board.
40508.  The revenues from the schedule of fees for the filing of
applications for permits shall be collected by the south coast
district board at the time that the application is filed.
40509.  Any person may petition the south coast district board to
hold a public hearing on any application to issue or renew a permit.
40510.  (a) The Legislature finds and declares as follows:
   (1) Total fees collected by the south coast district must continue
to be capped in order to prevent the imposition of undue financial
burdens upon regulated sources.
   (2) There is a need to provide for greater flexibility in
establishing and amending fees within the total fee cap to ensure a
fair apportionment of fee payment responsibilities.
   (3) Fees based solely on the quantity of emissions created by a
source should not be indexed to the emission potential, or to a
percentage of emissions trading units, as that term is used in
Sections 39616 and 40440.1, held by that source so as to prevent
payments of those fees from decreasing if emissions decline.
   (4) Before making any individual fee increase in excess of the
percentage increase of the California Consumer Price Index for the
preceding calendar year, findings of fact should be made, supported
by relevant information in the public record, that the fee increase
is necessary and will provide an equitable apportionment of fee
payment responsibilities, and the increase should be phased in to
avoid sudden adverse impacts on regulated sources.
   (b) The south coast district board may adopt a fee schedule for
the issuance of variances and permits to cover the reasonable cost of
permitting, planning, enforcement, and monitoring related thereto.
Every person applying for a variance or a permit, notwithstanding
Section 6103 of the Government Code, shall pay the fees required by
the schedule.
   (c) (1) The fees may be varied in accordance with the quantity of
emissions and the effect of those emissions on the ambient air
quality within the south coast district.
   (2) The fees shall not be indexed to the potential emissions from,
or to a percentage of the emissions trading units, as that term is
used in Sections 39616 and 40440.1, held by, any source.
   (d) Subject to the limits established by this section and Sections
40500.1 and 40523 and the requirements of Section 40510.5, this
section shall not prevent the district from establishing or amending
an individual permit renewal or operating permit fee applicable to a
class of sources to recover the reasonable district costs of
permitting, planning, enforcement, and monitoring which that class
will cause to district programs.  In establishing the fee applicable
to a class of sources, the district may consider the impact on air
quality of the emissions from that class.
40510.5.  In addition to the limits on total fee collections
established by Sections 40500.1 and 40523, the south coast district
board shall not increase any existing permit fee by a percentage
greater than any percentage increase in the California Consumer Price
Index for the preceding calendar year, unless the board complies
with both of the following requirements:
   (a) The district board shall make a finding, based upon relevant
information in a rulemaking record, that the fee increase is
necessary and will result in an apportionment of fees that is
equitable.  This finding shall include an explanation of why the fee
increase meets the requirements of this section and Section 40510.
   (b) The fee increase shall be phased in over a period of at least
two years.
40510.7.  The south coast district board may establish an annual
charge, in an amount not to exceed the annual estimated cost of
sending notices required by this division, and individual charges, in
amounts not to exceed the cost of sending notice on a one-time basis
and the cost of duplicating and mailing any document furnished
pursuant to this chapter.
40511.  The south coast district board may increase its fee schedule
to generate sufficient revenues to pay for any district costs
associated with the implementation of Section 66796.53 of the
Government Code or Section 41805.5.
40512.  (a) The south coast district board may impose a fee
surcharge based on a formula associated with quantity of emissions
and the effect of these emissions on ambient air quality within the
south coast district to generate sufficient revenues to pay for any
of its costs associated with the development and implementation of
Section 40448.5.
   (b) The total amount of funds collected from these surcharge fees
shall not exceed five hundred thousand dollars ($500,000) in each of
the first two fiscal years of the development or implementation of
Section 40448.5.  All surcharge fees received by the south coast
district pursuant to this section shall be deposited in a clean fuels
and transportation control measures account which shall be
established and maintained by the south coast district.
   (c) In subsequent fiscal years, the total amount of funds
collected from these surcharge fees shall not exceed 25 percent of
the amount of fees received the previous fiscal year from registered
motor vehicle owners pursuant to Section 9250.11 of the Vehicle Code.
  The surcharge fees received by the south coast district pursuant to
this section shall be used to pay for the initial costs incurred by
the Department of Motor Vehicles to implement the motor vehicle fee
program established by Section 9250.11 of the Vehicle Code.
   (d) All fees received by the south coast district pursuant to
Section 9250.11 of the Vehicle Code shall be deposited in the clean
fuels and transportation control measures account and shall be used
solely for transportation and vehicular-related program activities
within the program established by this section.  Not more than 21/2
percent of the funds in the account shall be used for the south coast
district administrative costs.
40515.  (a) Any public utility owned by a municipal corporation
within the south coast district shall provide public notice, pursuant
to subdivision (b), before submitting to the board of the south
coast district any application for a permit to construct or operate
any facility, machine, or contrivance that would be used for water
treatment and would emit toxic air contaminants.
   (b) A public utility specified in subdivision (a) shall mail,
post, deliver, or use any other practical method to notify all
residents and persons who own property within 330 feet of the
property containing the proposed facility, machine, or contrivance.
The notice shall include a description of the proposed facility,
machine, or contrivance and an explanation of the right to petition
the south coast district board to hold a hearing pursuant to Section
40509.
40516.  (a) The south coast district shall establish expedited
permit review and project assistance mechanisms for facilities or
projects which are directly related to research and development,
demonstration, or commercialization of electric and other clean fuel
vehicle technologies.
   (b) The mechanisms shall include all of the following:
   (1) The issuance of consolidated permits, serving the purpose of
both the permit to construct and the permit to operate, to expedite
the permitting process.
   (2) The review and processing of permits on a facility or project
basis rather than on an equipment basis to ensure a single point of
contact for the applicant and to allow entire projects to be reviewed
and evaluated on a single, consolidated schedule.
   (3) The establishment of a "fast track" permitting procedure to
approve permits in an average of 30 days from receipt of all
information requested by the district, except for any of the
following facilities:
   (A) Facilities that may emit significant amounts of toxic air
contaminants.
   (B) Facilities that require public notice.
   (C) Facilities that require additional review to meet the
requirements of the federal Clean Air Act (42 U.S.C.  Sec. 7401 et
seq.) or the California Clean Air Act of 1988 (Chapter 1568 of the
Statutes of 1988).
   (4) The development and implementation of postconstruction
enforcement procedures to ensure that new and modified sources are
constructed according to permit requirements.
   (5) The establishment of a liaison program in the office of public
adviser to assist facilities participating in research and
development, demonstration, or commercialization of electric and
other clean fuel vehicle technologies with preparing permit
applications, complying with other district administrative
procedures, and identifying and applying for state, federal,
district, or other available funds set aside for electric and other
clean fuel vehicle-related projects.
   (c) For purposes of this section, clean fuels are fuels designated
by the state board for use in low, ultralow, or zero emission
vehicles and include, but are not limited to, electricity, ethanol,
hydrogen, liquefied petroleum gas, methanol, natural gas, and
reformulated gasoline.