Rules and Regulations

(a) These rules shall apply to all hearings before the Hearing Board of the Air Pollution Control District which shall be held in the designated Hearing Room at 1600 Pacific Highway, San Diego, California.

(b) For purposes of these Rules the terms "day" or "days" shall mean calendar days unless otherwise indicated.

At the first regular meeting of each calendar year, or as soon thereafter as the Board’s schedule permits, the members of the Board shall select one of their members to serve as Chairperson of the Board.

At the first regular meeting of each calendar year, or as soon thereafter as the Board’s schedule permits, the members of the Board shall select one of their members to serve as Vice Chairperson to fulfill the duties and responsibilities of the Chairperson in his or her absence.

The Clerk of the Hearing Board shall cause to be recorded in the minutes the time and place of each meeting of the Hearing Board, the names and members present, all official acts of the Hearing Board, the votes by members and, when requested by a member the reasons for the member’s dissent or approval, and shall cause the minutes to be prepared forthwith. The minutes or a true copy thereof signed by the Clerk of the Hearing Board shall form part of the permanent record of the Hearing Board.

All proceedings of the Hearing Board shall be recorded by tape recording. Copies of the tape will be made available upon request and payment of the fee therefor. In the event a transcript is desired by a party to the proceedings other than the District, the requesting party may arrange for the preparation of such transcript and the cost of such transcript shall be paid by said party. The parties may stipulate with the approval of the Hearing Board that a transcript is the official record of the proceeding. Transcripts may be certified by the Clerk of the Hearing Board provided that the costs of such certification shall be paid by the requesting party.

The Hearing Board will promptly convene the hearing at the time specified in the Notice of Hearing. The Hearing Board may recess at the discretion of the Chairperson. It will reconvene promptly at the time specified by the Chairperson.

A Hearing Board member shall disqualify himself and withdrawn from any case in which he cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of any member by filing an affidavit before the submission of the case, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue raised by the request shall be determined by the other members of the Hearing Board.

Three members of the Hearing Board shall constitute a quorum.

(a) The Hearing Board may hold a hearing in bank or may designate three or four of their number to hold a hearing.

(b) If three or more members of the Hearing Board conduct a hearing, the concurrence of three shall be necessary for a decision.

The absence or resignation of Hearing Board members shall not affect any action taken by the Board provided:

(a) A quorum is present, and

(b) At least three members concur in the decision.

Except for petitions for rehearing under Rule 30(b) and any other matter as to which the time in which the Hearing Board must act has expired, whenever the Hearing Board fails to take action on a matter before it because the motion regarding that matter failed to obtain the required affirmative vote, the Hearing Board shall set a date for reconsideration of the matter. If for any reason the Hearing Board fails to set such date, the Clerk shall list the matter as a pending item on the agenda for the next regular meeting of the Hearing Board.

The petitioner or respondent, may be represented by counsel in any matter before the Hearing Board. However, representation is not mandatory and if a party elects to proceed in a matter without counsel said party shall have no right to a rehearing of the matter for the reason that counsel was not present.

At each Hearing Board meeting, the Hearing Board shall allow any member of the public to address the Hearing Board on a matter within its jurisdiction. The total amount of time for public testimony shall be no more than five minutes. Any person wishing to address the Hearing Board must complete and deliver to the Clerk of the Hearing Board a "Request to Speak" form prior to the time that the "Public Comment" period commences; the form shall include a description of the subject the speaker wishes to address. A speaker shall not be heard during the "Public Comment" portion of the meeting on a matter listed on the Agenda.

(a) Except as provided in subdivision (b) of this rule, a request for hearing shall be initiated by the filing of a petition with the Clerk of the Hearing Board at the San Diego County Administration Center, Room 402, 1600 Pacific Highway, San Diego, California, 92101, and the payment of the fee provided for in APCD Rule 42. If the petition together with any accompanying documents contains a total of 10 pages or less, the Clerk of the Hearing Board shall not later than the day the petition is filed transmit a copy of the petition and any accompanying documents to the Air Pollution Control District. If the petition together with accompanying documents contains a total of more than 10 pages, the petitioner shall provide 15 copies to the Clerk of the Hearing Board and shall, not later than the date the petition is filed, also serve the Air Pollution Control at 10124 Old Grove Road, San Diego, CA 92131 unless the District or Air Pollution Control Officer is the petitioner. The petitioner shall also serve the petition and any accompanying documents, regardless of length, upon 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 acknowledgment of the person served or by affidavit of the person making the service.

(b) Except as provided in subdivision (c) of this Rule, all petitions shall be filed, and served in such manner as to be received by respondent(s) not later than 14 days before the date set for hearing.

(c) Petitions for a regular variance shall be filed and served not later than 35 days before the date set for hearing.

(d) A request for an emergency variance shall be initiated by calling or contacting the Air Pollution Control Officer. A petition shall be filed and served pursuant to subsection (a) and the fee therefor paid, not later than the second working day following the initial contact. If so filed, and the fee is timely paid, any variance granted may become effective as early as the date of initial contact.

(a) Every petition shall contain the following information:

(1) The name, address and telephone number and telefax number, if available, of the petitioner, or other person authorized to receive service of notices.

(2) The type of business or activity involved in the petition and the street address at which it is conducted.

(3) A brief description of the article, machine, equipment or other contrivance, if any, involved in the petition, and its location.

(4) The section or rule under which the petition is filed, that is whether petitioner desires a hearing:

(A) To determine whether a permit was properly suspended under Section 42306 of the Health and Safety Code.

(B) To determine whether a permit shall be revoked pursuant to Section 42307 of the Health and Safety Code.

(C) For a variance under Health and Safety Code Section 42350;

(D) To revoke or modify a variance under Section 42356, Health and Safety Code;

(E) To review the denial or conditional granting of a Authority to Construct, Permit to Operate under Health and Safety Code Section 42302 and the APCD Rule 25.

(F) To determine, pursuant to Health and Safety Code Section 42302.1, whether a permit was properly issued.

(G) To consider adoption, modification, or revocation of proposed Compliance Schedules submitted in accordance with Health and Safety Code Sections 42357 & 42358.

(H) To consider a petition for an order for abatement pursuant to Health and Safety Code Section 42451.

(5) Each petition shall be verified and signed by petitioner, or by some person on his or her behalf, and where the person signing is not the petitioner, it shall set forth his or her authority to sign.

(6) In a petition for revocation of a permit the Air Pollution Control Officer shall allege in addition the rule under which the permit was granted, the rule or section which is alleged to have been violated, together with a brief statement of the facts constituting such alleged violation.

(7) Petitions for reinstatement of suspended permits shall allege in addition the rule under which the permit was granted, the request and alleged refusal which formed the basis for such suspension, together with a brief statement as to why information requested, if any, was not furnished, whether such information is believed by petitioner to be pertinent, and if so, when it will be furnished.

(8) A petition for an order of abatement shall allege the statute or rule which is alleged to be violated and shall indicate whether the order sought would have the effect of a variance.

(b) All petitions shall be typewritten double-spaced, on letter sized paper, on one side of the paper only, leaving a marking of at least four inches at the top and one inch on the left side of the first sheet. All succeeding sheets, shall have a one inch margin at the top and the left side.

(c) If petitioner chooses to include a memorandum containing legal arguments in support of the petition, such memorandum shall be filed and served with the petition.

(d) A memorandum containing legal arguments may be filed and served after the petition has been filed and served provided that the petitioner is able to show good cause for the delay in filing. The Hearing Board shall determine whether good cause has been shown prior to considering the memorandum.

In addition to the matters required by Rule 11, petitions for variance shall include:

(a) The section, rule or order complained of.

(b) A written statement of the facts which support petitioner’s assertion that conditions required by Health and Safety Code Section 42352 exist, including the following:

(1) Facts which show that petitioner is or will be discharging air contaminants in excess of those allowed by Health and Safety Code Section 41701, or in violation of any district rule, regulation, or order;

(2) Facts which show that requiring compliance would result in either an arbitrary or unreasonable taking of property, or the practical closing and elimination of a lawful business; and that such results are due to conditions beyond petitioner’s reasonable control;

(a) the statement of facts shall also state the actions which the petitioner took to comply or seek a variance since the adoption of the rule, regulation, or order from which the variance is sought;

(b) statement of facts shall also state facts which show whether or not an unreasonable burden would be imposed upon the petitioner if immediate compliance is required;

(3) If petitioner is a public agency, a statement, and facts to support said statement, indicating whether or not requiring immediate compliance would impose an unreasonable burden upon an essential public service as defined in Health and Safety Code Section 42352(a)(2).

(4) Facts which show that the closing or taking would be without a corresponding benefit in reducing contaminants;

(5) Facts which show that petitioner has given consideration to curtailing operations of the source in lieu of obtaining a variance;

(6) Facts which show that during the period the variance is in effect, the petitioner will reduce excess emissions to the maximum extent feasible;

(7) Facts which show that during the period the variance is in effect, the petitioner 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;

(8) A statement, and facts to support said statement, indicating whether or not petitioner’s business is a small business as defined by the Small Business Administration, and whether petitioner’s business emits 10 tons or less per year of air contaminants; if the petitioner is a small business and emits 10 tons or less per year of air contaminants, the statement shall also describe:

(a) the reasons for any claimed ignorance of the requirement from which a variance is sought;

(b) the petitioner’s financial and other capabilities to comply;

(c) the impact on the petitioner’s business and the benefit to the environment which would result if the petitioner is required to immediately comply.

(c) For what period of time the variance is sought and why.

(d) A proposed schedule of "increments of progress" (compliance schedule), if necessary, including the following:

(1) The date by which contracts for emission control systems or process modification will be awarded or the date by which orders will be issued for the purchase of component parts to accomplish emission control or process modification;

(2) The date of initiation of onsite construction or installation of emission control equipment or process change;

(3) The date by which onsite construction or installation of emission control equipment or process modification is to be completed;

(4) Such additional increments of progress as may be necessary or appropriate to permit close and effective supervision of progress toward timely compliance; and

(5) The date by which final compliance is to be achieved.

(e) Whether or not operations under such variance, if granted, would constitute a nuisance.

(f) Whether or not the subject equipment or process is covered by Authorities to Construct or a Permit to Operate issued by the Air Pollution Control Officer, and if so, the permit number.

To the extent possible, the number of emission points, the different nature, if any, of emission points and should include measured values or estimates of the quantity and nature of emissions and the degree of violation of the regulations of the District for the source(s) in question.

(g) State the amount of emissions and excess emissions, if any.