13 CA ADC § 2271 Page 1

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Cal. Admin. Code tit. 13, s 2271

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BARCLAYS OFFICIAL CALIFORNIA CODE OF 

REGULATIONS

TITLE 13. MOTOR VEHICLES

DIVISION 3. AIR RESOURCES BOARD

CHAPTER 5. STANDARDS FOR MOTOR VEHICLE FUELS

ARTICLE 1. STANDARDS FOR GASOLINE

SUBARTICLE 2. STANDARDS FOR GASOLINE 

SOLD BEGINNING MARCH 1, 1996

This database is current through 12/26/2003, Register 

2003, No. 52.

s 2271. Variances.

(a) Applications for variances. Any person who cannot 

comply with the standards or compliance requirements set 

forth in sections 2262, 2262.3, 2262.4, 2262.5 or 2262.6 

because of reasons beyond the person's reasonable control 

may apply to the executive officer for a variance. Except 

for emergency variances as provided in section (h), the 

application shall be accompanied by a fee of $6700.00 to 

cover the costs of processing the variance. If the applicant 

withdraws the application before the variance hearing is 

held, $4100.00 of the fee shall be refunded. The application shall set forth:

(1) The applicable section(s) from which the variance is 

sought;

(2) The specific grounds upon which the variance is 

sought;

(3) The proposed date(s) by which compliance with the 

provisions of the applicable section(s) will be achieved; 

and

(4) A compliance plan reasonably detailing the method by 

which compliance will be achieved. That proposed compliance plan shall include increments of progress (i.e., 

specific events and dates) that describe periodic, measurable steps toward compliance during the proposed term of 

the variance.

(b)(1) Notices and public hearings for variances. Upon 

receipt of an application for a variance containing the 

information required in section (a), the executive officer 

shall hold a hearing to determine whether, or under what 

conditions and to what extent, a variance from the requirements of the applicable section(s) is necessary and 

will be permitted. Notice of the time and place of the 

hearing shall be sent to the applicant by certified mail not 

less than 20 days prior to the hearing. Notice of the hearing 

shall also be submitted for publication in the California 

Regulatory Notice Register and sent to every person who 

requests such notice, not less than 20 days prior to the 

hearing.

(2) Treatment of confidential information.Information 

submitted to the executive officer by a variance applicant 

may be claimed as confidential. Information claimed as 

confidential shall be handled in accordance with the procedures specified in Title 17, California Code of Regulations (CCR), sections 91000 to 91022 except that: (A) at 

the time the information is submitted, the submitter must 

provide accompanying documentation in support of the 

claim of confidentiality, including the documentation 

identified in section 91022(c), and (B) for the purposes of 

this section 2271, the time period specified in section 

91022(e)(2) is 10 days instead of 21 days. The executive 

officer may consider such confidential information in 

reaching a decision to grant or deny a variance.

(c) Public participation in the variance process.At least 20 

days prior to the hearing, the application for the variance 

shall be made available to the public for inspection. Interested members of the public shall be allowed a reasonable 

opportunity to submit written and oral testimony at the 

hearing and their testimony shall be considered.

(d) Necessary findings for granting variances. The decision to grant or deny a variance shall be based solely upon 

substantial evidence in the record of the variance proceeding. No variance shall be granted unless the executive 

officer makes all of the following findings:

(1) That, because of reasons beyond the reasonable control 

of the applicant, requiring compliance with the applicable 

section(s) would result in an extraordinary economic 

hardship;

(2) That the public interest in mitigating the extraordinary 

hardship by issuing the variance outweighs the public 

interest in avoiding any increased emissions of air contaminants which would result from issuing the variance; and
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(3) That the compliance plan proposed by the applicant 

can reasonably be implemented and will achieve compliance as expeditiously as possible.

(e) Factors to be considered in making the necessary 

findings for granting variances.

In making the findings specified in section (d), the factors 

set forth below shall be considered. It is the responsibility 

of the applicant to provide the information necessary to 

adequately evaluate these factors.

(1) Regarding the finding specified in section (d)(1):

(A) To demonstrate that noncompliance is "beyond the 

reasonable control of the applicant," the applicant must 

demonstrate that reasonably diligent and timely efforts to 

achieve compliance have been made. Where a variance is 

sought from initial compliance with the CaRFG Phase 3 

requirements, the applicant shall show that timely capital 

expenditures and efforts to obtain the permits for necessary 

refinery modifications have been made, and that the applicant has been reasonably diligent in attempting to follow 

the periodic compliance plans required by section 2269, 

"Submittal of Compliance Plans." Where a variance is 

sought due to a breakdown, the applicant shall demonstrate 

that the breakdown could not have been prevented or mitigated by the application of standard industrial practices. 

"Standard industrial practices" means elements of design, 

methods of operation, and levels of oversight and maintenance that are regarded as generally accepted practice in 

the applicant's type of business.

(B) To demonstrate that requiring compliance would 

result in an "extraordinary economic hardship," the applicant must make a substantial showing that no alternative to 

a variance would eliminate or mitigate the need for a variance. Potential alternatives that the applicant shall address include the following: 1. obtaining complying gasoline from outside sources, or obtaining blending materials 

that would allow production of complying gasoline, and 2. 

using the applicable California Predictive Model (as specified in Title 13, CCR, section 2265) to maximize the 

production of complying gasoline, or to minimize the 

degree of noncompliance, through the use of a PM alternative gasoline formulation. The applicant shall compare 

the economics of operations without a variance, for the 

period over which the variance is proposed, with the economics of operations after the variance compliance plan 

has been implemented (e.g., the economic hardship during 

the term of the variance shall be measured against the 

eventual cost of long-term compliance.) The operations 

may include facets of the applicant's business other than 

gasoline operations, if those facets are directly affected by 

the ability to conduct the gasoline business. An applicant 

may also address any supply shortages that could result 

from the failure to grant a variance and the economic affects of such shortages on the persons who do, or could, 

receive gasoline from the applicant.

(2) Regarding the finding specified in section (d)(2):

(A) The executive officer shall consider the potential 

effects of issuing or denying the variance on the applicant's 

customers, the producers of complying fuel, the general 

public, and upon air quality. The executive officer shall 

also consider whether granting the variance will place the 

applicant at a cost advantage over other persons, including 

those persons who produce complying gasoline.

(B) To evaluate the potential effect upon air quality, the 

excess emissions from granting the variance shall be estimated as follows:

1. Exhaust emissions:The fractional change in emissions 

from using the variance gasoline shall be estimated with 

the California Predictive Model (model). Inputs to the 

model shall be the limits to be placed on the regulated 

properties of the variance gasoline by the variance conditions and the limits set forth in section 2262 that correspond in form (flat or averaging) to the variance limits. For 

each air basin in which the variance gasoline will be sold, 

the estimate of excess exhaust emissions shall be the fractional change in emissions (output by the model), times the 

estimated fraction of gasoline use in the air basin 

represented by the variance gasoline, times the inventory 

of exhaust emissions from gasoline-powered vehicles in 

the air basin.

2. Evaporative hydrocarbon emissions:Excess evaporative 

emissions shall be estimated for a limit greater than 7.0 

pounds per square inch (psi) on the Reid vapor pressure 

(RVP) of variance gasoline. This estimate shall apply only 

for the period when RVP is limited to 7.0 psi. The true 

vapor pressure corresponding to the RVP limit for variance 

gasoline shall be divided by the true vapor pressure corresponding to RVP at 7.0 pounds per square inch. For each 

air basin in which the variance gasoline will be sold, the 

estimate of excess evaporative emissions shall be that 

ratio, minus 1.0, times the estimated fraction of gasoline 

use in the air basin represented by the variance gasoline, 
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times the inventory of emissions due to the evaporation of 

gasoline from all sources in the air basin.

(3) Regarding the finding specified in section (d)(3):

The applicant shall demonstrate why the proposed compliance plan is the most expeditious way to achieve compliance, and the applicant shall demonstrate sufficient 

control over the implementation of the plan to make the 

plan practical. In the case of a proposed variance that 

would begin on December 31, 2003, the compliance plan 

shall identify and provide a date for each key step that 

remains to be accomplished for attaining compliance. As 

applicable, these steps shall include financing, engineering 

plans, ordering and contracts, receipt of major equipment, 

commencement and completion of construction, and testing.

(f) Conditions and fees in variance orders.In imposing fees 

and conditions in variance orders, the executive officer 

shall take into account the potential for such fees and 

conditions to place the applicant at a cost advantage over 

other persons, including those persons who produce complying gasoline.

(1) Conditions.

(A) Any variance order shall specify a final compliance 

date by which the requirements of the applicable section(s) 

will be achieved. Any variance order shall also contain a 

condition that specified increments of progress necessary 

to assure timely compliance be achieved, and such other 

conditions that the executive officer, as a result of the 

testimony received at the hearing, finds necessary to carry 

out the purposes of Division 26 of the Health and Safety 

Code. Such conditions may include, but are not limited to, 

reporting requirements, limitations on the gasoline specifications, and the elements of the variance compliance plan 

as proposed by the applicant, with any modifications made 

by the executive officer.

(B) Any variance order granting a variance from 2262.4 

shall impose a substitute gasoline Reid vapor pressure limit 

as stringent as feasible under the circumstances, in no case 

to exceed 9.0 pounds per square inch. For areas where, and 

in seasons when, federal regulations require a lesser 

maximum Reid vapor pressure limit, a variance order shall 

not impose a Reid vapor pressure limit that is less stringent 

than the federal limit.

(C) The executive officer may require, as a condition of 

granting a variance, that a cash bond, or a bond executed 

by two or more good and sufficient sureties or by a corporate surety, be posted by the party to whom the variance 

was granted to assure performance of any construction, 

alteration, repair, or other work required by the terms and 

conditions of the variance. Such bond may provide that, if 

the party granted the variance fails to perform such work 

by the agreed date, the cash bond shall be forfeited to the 

state board, or the corporate surety or sureties shall have 

the option of promptly remedying the variance default or 

paying to the state board an amount, up to the amount 

specified in the bond, that is necessary to accomplish the 

work specified as a condition of the variance.

(D) The variance order shall limit the amount of variance 

gasoline sold or supplied from the applicant's production or 

import facility during each 30-day period of the variance, 

or during such other time period as the executive officer 

may specify. In determining the limit on the amount of 

variance gasoline, the Executive Officer shall consider 

available data on the applicant's production of complying 

gasoline. The limit shall not exceed the applicant's capacity 

to produce complying gasoline.

(E) The variance order shall specify that once a quantity of 

variance gasoline has been sold or supplied by the applicant in accordance with the variance, subsequent transactions involving that variance gasoline by another producer, 

distributor, retailer, end user, or other person shall also be 

exempt from the applicable requirements.

(2) Fees. A fee of $0.15 shall be levied on the applicant for 

each gallon of gasoline sold or released for sale under 

variance during the term of the variance. The fee shall be 

paid by the applicant periodically, in advance of the sale or 

release of variance gasoline in each period. The executive 

director shall specify the payment schedule in the variance 

order.

(g) Duration of variances.

(1) A variance shall be granted only for the minimum 

period necessary for the applicant to attain compliance 

with the applicable regulations. Except for a variance related to a physical catastrophe, no variance shall have a 

duration of more than 120 days; however, a variance may 

be extended for up to 90 additional days if the applicant 

demonstrates that the requirements of sections (d) and (e) 

are met. In order to receive an extension of a variance, the 

applicant must submit an application as specified in section 
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(a), and a hearing must be held as specified in sections (b) 

and (c).

(2) Variances related to a physical catastrophe.Notwithstanding the provisions of section (g)(1), a 

refiner may be granted a variance with a duration of more 

than 120 days, or a variance extension of more than 90 

days, if the applicant demonstrates that the additional time 

is necessary due to a physical catastrophe, and the requirements of sections (d) and (e) are met. In order to 

receive a variance or variance extension, the applicant 

must submit an application as specified in section (a) and a 

hearing must be held as specified in sections (b) and (c). As 

used in this section, "physical catastrophe" means a sudden 

unforseen emergency beyond the reasonable control of the 

refiner, causing the severe reduction or total loss of one or 

more critical refinery units that materially impact the refiner's ability to produce complying gasoline. "Physical 

catastrophe" does not include events which are not physical in nature such as design errors or omissions, financial 

or economic burdens, or any reduction in production that is 

not the direct result of qualifying physical damage.

(h) Emergency variances.

(1) The executive officer may, after holding a hearing 

without complying with the provisions of sections (b) and 

(c), issue an emergency variance to a person from the 

requirements of the applicable section(s) upon a showing 

of reasonably unforeseeable extraordinary hardship and 

good cause that a variance is necessary. The applicant for 

an emergency variance shall pay a fee of $2500.00. Section 

(f) shall apply to emergency variances, except that a variance order is not required to specify a final compliance

date by which the requirements of the applicable sections(s) will be achieved.

(2) No emergency variance may have a duration of more 

than 45 days. If the applicant for an emergency variance 

does not demonstrate that he or she can comply with the 

provisions of the applicable section(s) within such 45-day 

period, an emergency variance shall not be granted unless 

the applicant makes a prima facie demonstration that the 

findings set forth in section (d) should be made. The executive officer shall maintain a list of persons who have 

informed the executive officer in writing of their desire to 

be notified by telephone in advance of any hearing held 

pursuant to section (h), and shall provide advance telephone notice to any such person as soon as practicable, 

considering the nature of the emergency.

(i) Situations in which variances shall cease to be effective. A variance shall cease to be effective upon failure of 

the party to whom the variance was granted substantially to 

comply with any condition of the variance.

(j) Modification and revocation of variances.Upon the 

application of any person, the executive officer may review 

and for good cause modify or revoke a variance from the 

requirements the applicable section(s) after holding a 

hearing in accordance with the provisions of sections (b) 

and (c).

<General Materials (GM) - References, Annotations, or 

Tables>

Note: Authority cited: Sections 39600, 39601, 43013, 

43013.1, 43013.2, 43018 and 43101, Health and Safety 

Code; andWestern Oil and Gas Ass'n. v.Orange County 

Air Pollution Control District, 14 Cal.3d 411, 121 Cal. 

Rptr. 249 (1975). Reference: Sections 39000, 39001, 

39002, 39003, 39010, 39500, 39515, 39516, 40000, 

41511, 43000, 43013, 43013.1, 43013.2, 43016, 43018 and 

43101, Health and Safety Code; andWestern Oil and Gas 

Ass'n. v.Orange County Air Pollution Control District, 14 

Cal.3d 411, 121 Cal. Rptr. 249 (1975). 

HISTORY 

1. New section filed 11-16-92; operative 12-16-92 (Register 92, No. 47).

2. Change without regulatory effect amending subsections (a), (a)(3)-(a)(4)

and (d)(1)-(d)(3) filed 8-5-93 pursuant to section 100, title 1, California

Code of Regulations (Register 93, No. 32).

3. Amendment of section and Note filed 2-15-96 as an emergency; operative 2-15-

96 (Register 96, No. 7). A Certificate of Compliance must be transmitted to
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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

OAL by 6-14-96 or emergency language will be repealed by operation of law on

the following day.

4. Certificate of Compliance as to 2-15-96 order transmitted to OAL 4-4-96 and

filed 5-16-96 (Register 96, No. 20).

5. Amendment of section and Note filed 8-3-2000; operative 9-2-2000 (Register

2000, No. 31).

6. Amendment of subsection (e)(3) filed 12-24-2002; operative 12-24-2002

pursuant to Government Code section 11343.4 (Register 2002, No. 52).

13 CA ADC s 2271

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