California Code of Regulations
Title 17 - Public Health
Division 3 - Air Resources
Chapter 1 - Air Resources Board
Subchapter 10 - Climate Change
Article 4 - Regulations to Achieve Greenhouse Gas Emission Reductions
Subarticle 5 - Prohibitions on Use of Certain Hydrofluorocarbons in Stationary Refrigeration, Chillers, Aerosols-Propellants, and Foam End-Uses
Section 95378 - Variance

Universal Citation: 17 CA Code of Regs 95378

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

(a) Applicability. An Applicant may submit a request to the Executive Officer for a variance from the requirements of section 95374 and 95375. The Executive Officer may grant a variance if the Executive Officer determines that the Applicant has proven by clear and convincing evidence that the criteria for a variance in subsection (b) has been met and that the Applicant has complied with all application requirements specified in subsection (c).

(b) Variance Types. The Executive Officer may issue the following variances:

(1) Impossibility. The Applicant cannot comply with the regulatory requirements, and the Applicant can demonstrate all of the following criteria:

(A) A lower-risk substitute is not currently or potentially available;

(B) An exemption will not increase the overall risk to human health or the environment; and

(2) Force Majeure Event. The Applicant cannot comply with the regulatory requirements, and the Applicant can demonstrate all of the following criteria:

(A) Noncompliance is due to a Force Majeure Event; and

(B) The Applicant has used best efforts to anticipate and address any Force Majeure Event and any potential noncompliance, including minimizing any adverse effects of the greenhouse gas emissions related to noncompliance.

(c) Application for Variance. To apply for a variance the Applicant shall submit an Application in accordance with the following requirements:

(1) The Application shall include:

(A) Applicant name, ownership status (e.g., parent, subsidiary), address, telephone number, and email address;

(B) Description of business activity or product description;

(D) The specific section(s) of this subarticle from which a variance is being requested;

(E) Explanation and description of the reasons for seeking a variance;

(F) Identification of whether the variance requested is pursuant to section 95378(b)(1), 95378(b)(2), or both; and provide the following:

1. Clear and convincing evidence demonstrating how the variance criteria specified in section 95378(b) has been met; and

2. Supporting documentation for attributing noncompliance to Impossibility or a Force Majeure Event;

(G) Description of all efforts made to timely fulfill the requirements of the section(s) from which a variance is being requested;

(H) Length of variance requested as well as the earliest date when compliance will be achieved;

(I) A compliance plan that describes in detail how, if a variance is granted, compliance will be achieved as expeditiously as possible, including the method by which compliance will be achieved, milestone dates, and milestone achievements;

(J) Description of the damage or harm that will result to the Applicant from immediate compliance with the regulatory requirements, including if compliance would result in an extraordinary economic hardship, such as closure of the entire facility or loss of a large portion of the revenue;

(K) For variance requests based on impossibility, quantification of current GHG emissions resulting from normal business-as-usual operations as it directly relates to the continued use of any substance in end-uses listed in Table 1, section 95374(a); Table 2, section 95374(b); Table 3, section 95374(c); or Table 4, section 95374(d). This includes quantification of the direct GHG emissions resulting from refrigerant leaks or HFC emissions and indirect GHG emissions resulting from energy use (where applicable), with all calculations, based on the average lifetime of the equipment or product that will continue to use prohibited substances. Applicant must include all calculations used to calculate GHG emissions estimates, including emission factors (i.e., charge size as defined in section 95373, leak rate as defined in 40 C.F.R. Part 82.152, and refrigerant used over the average lifetime of the equipment, system, or product);

(L) Description of any negative impacts to human health or the environment that may result from the granting of a variance;

(M) A mitigation plan that demonstrates how the Applicant will reduce excess GHG emissions to a level equal to or below what would have been emitted had the Applicant been in compliance and how the Applicant will mitigate any negative impacts to human health or the environment. The Applicant must include all calculations used to calculate GHG emissions estimates, including emission factors (i.e., charge size as defined in section 95373, leak rate as defined in 40 C.F.R. Part 82.152 , and refrigerant used over the average lifetime of the equipment, system, or product). This may include an analysis of options to minimize usage of prohibited substances, efforts to reduce leaks or venting of prohibited substances, and options to recycle or destroy high-GWP refrigerant(s); and

(N) A detailed explanation of efforts that may be implemented to curtail noncompliance in lieu of obtaining a variance.

(2) The Applicant shall certify under penalty of perjury that they are a Responsible Official with authority to submit the application, implement any provision of an Executive Order, and that all information provided is true and accurate to the best of the Applicant's knowledge, after conducting due diligence. Applications without this certification will be automatically denied.

(3) All applications and documentation relating to the variance shall be submitted to CARB at HFCREDUCTION@ARB.CA.GOV.

(4) Applications and supporting documents shall be written in English.

(5) Any Applicant submitting information to the Executive Officer pursuant to this section may claim that information to be "confidential" by clearly identifying the information as "confidential." Any claim of confidentiality by an Applicant submitting information must be based on the Applicant's belief that the information marked as confidential is either trade secret or otherwise exempt from public disclosure under the California Public Records Act (Government Code, section 6250 et seq.). All requests for confidentiality shall be handled in accordance with the procedures specified in California Code of Regulations, title 17, sections 91000 to 91022.

(d) Approval and Disapproval Process.

(1) The Executive Officer will determine whether the application is complete and will notify the Applicant of this determination within 30 days of receipt of an application. If the application is determined to be incomplete, the Executive Officer will notify the Applicant and specify the information needed to make the application complete. To be complete, the application must include all information required by section 95378, subsections (b) and (c). Any application not providing all required information within 90 calendar days is automatically denied.

(2) Within 30 calendar days after the application is deemed complete, the Executive Officer will publicly post notice of receipt of the application and the requested variance and invite public comment for 30 calendar days from the date the notice is posted.

(A) Public comments that are received within 30 calendar days of the date of notice shall be considered by the Executive Officer in making the final decision on the application. The Applicant may submit additional supporting documentation before a decision has been reached.

(B) The Executive Officer will determine if the variance application is approved or disapproved within 60 calendar days after close of the public comment period.

(3) The Executive Officer will notify the Applicant of the decision in writing, and if approved, will specify all terms and conditions of the variance in the form of an Executive Order.

(4) An approved variance, including the terms and conditions of the Executive Order, are granted solely to the Applicant of the variance and are non-transferrable.

(5) The variance shall not be retroactively applied to any date before the Applicant submits a complete application.

(6) The Executive Officer may expeditiously approve a variance application for a Force Majeure Event meeting the criteria specified in section 95378(b)(2) prior to the close of a public comment period if the Executive Officer determines that the urgency of the Force Majeure Event necessitates an immediate variance to protect human health or the environment.

(e) Failure to Comply with Terms or Conditions of the Executive Order.

(1) The Applicant shall comply with all terms of the Executive Order.

(2) The variance shall cease to be effective immediately upon the failure of the Applicant, to whom the variance was granted, to comply with any term or condition of the Executive Order.

(3) Section 95377 shall apply to violations of any variance condition.

(f) Revocation or Modification of Variance.

(1) If the Executive Officer determines that the Applicant no longer meets the variance criteria specified in subsection (b), the Executive Officer may revoke or modify the Executive Order.

(2) If the Executive Officer determines that the Applicant violates any requirement of the Executive Order, the Executive Officer may revoke or modify the Executive Order.

(g) Review of Agency Decision.

(1) An Applicant may petition for review of an Executive Officer's decision made pursuant to this section by requesting an administrative hearing in accordance with the procedures specified in California Code of Regulations, title 17, division 3, chapter 1, subchapter 1.25, article 2 (commencing with section 60055.1).

(2) An Applicant adversely affected by the final decision of the administrative hearing may seek judicial review by filing a petition for writ of mandate in accordance with section 1094.5 of the California Code of Civil Procedure within 30 days after the order or decision becomes final.

1. Change without regulatory effect renumbering former section 95377 to new section 95378, including amendment of NOTE, filed 1-3-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2020, No. 1).
2. Renumbering of former section 95378 as section 95379 and new section 95378 filed 12-29-2021; operative 1-1-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 53). (Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20.)

Note: Authority cited: Sections 38560, 38562, 39600, 39601, 39734 and 41511, Health and Safety Code. Reference: Sections 38510, 38560, 38562, 38566, 38580, 39601, 39605, 39730, 39730.5, 39734 and 41511, Health and Safety Code.

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