18 AAC 53.150. Temporary variances

(a) A person may apply for a temporary variance from the requirements of this chapter if, for reasons beyond the applicant's control, the applicant cannot comply with the requirements of this chapter. The department will grant a request for a temporary variance, after public hearing and opportunity for comment, if the department finds that

(1) the circumstances prompting the request are extreme and unusual;

(2) the benefits to the public of allowing the business to continue operations exceed any detriment to air quality caused by the noncompliance;

(3) prudent planning was exercised, the noncompliance was unavoidable, and all reasonable steps to minimize the extent of the noncompliance are being taken;

(4) the applicant shows that compliance will be achieved as soon as possible; and

(5) the applicant agrees to offset all or a portion of the excess emissions associated with the use of nonconforming gasoline, if practicable, and to apply reasonable substitute or alternative air pollution control measures that the department, in its discretion, prescribes.

(b) A temporary variance granted under (a) of this section will be subject to conditions consistent with the reasons for the variance, and will include the following time limits:

(1) if the variance is granted on the grounds that there is no practicable means known or available for complying with this chapter, the variance will be effective only until the necessary means of complying become known or available; or

(2) if the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that described in (1) of this subsection, the variance will be effective for no more than one year.

(1) the specific grounds upon which the variance is sought, including evidence that the conditions in (a) of this section are met;

(2) the proposed date by which compliance will be achieved or reestablished; and

(3) a description of the applicant's plan to achieve compliance, including any applicable increments of progress.

(d) Within 30 days after the department receives a complete application under this section, the department will hold a public hearing to determine whether, and under what conditions, a temporary variance will be granted. At least two weeks before the hearing, the department will send written notice to the applicant and the EPA and publish notice of the hearing in a newspaper of general circulation in the affected control area. A notice under this subsection will state that any interested person may present testimony or evidence regarding the request for a variance, including comments concerning the cost of compliance with the regulations and alternative practical methods of complying.

(e) The department will issue a decision on the request for a variance within 10 days after the public hearing.

(f) After the department issues a decision on the request for variance, any person adversely affected by the decision may request an adjudicatory hearing in the manner provided in 18 AAC 15.195 - 18 AAC 15.340.

(g) A variance granted under this section does not prevent or limit the application of an emergency order issued under AS 46.03.820 .

History: Eff. 9/25/92, Register 123; am 10/31/97, Register 144; am 7/11/2002, Register 163

Authority: AS 44.46.020

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