(a)
An air pollution control officer may, pursuant to this article, deny a permit, refuse to renew a permit, or specify additional permit conditions to ensure compliance with applicable rules and regulations, if the officer determines that each of the following has occurred:
(1)
In the three-year period preceding the date of application, the applicant has violated laws or regulations identified in subdivision (a) of Section 42331 and subdivision (a) of Section 42332 resulting in either excessive emissions or violations at a facility which is required to be permitted but is not permitted, owned or operated by the applicant.
(2)
A notice of violation was issued for those violations.
(3)
A variance was not in effect with respect to those violations.
(4)
The violations demonstrate a recurring pattern of noncompliance or pose or have posed a significant risk to the public health or safety or to the environment.
(5)
Notice and an opportunity for an office conference was provided pursuant to Section 42334.
(b)
This section does not apply to a permit to operate, or the renewal of such a permit, issued by an air pollution control officer for a facility which is owned or operated by an applicant, unless the applicant has met the criteria set forth in paragraphs (1) to (4), inclusive, of subdivision (a) at the source in question at that facility.
(c)
For the purposes of determining a permit action under this section, the air pollution control officer shall take into consideration the size and complexity of the applicant’s operations and the number of permits held by the applicant.
(d)
The air pollution control officer’s determination of whether to deny a permit shall be based upon all of the following:
(1)
Whether the emissions violations forming the basis for the denial were the result of circumstances beyond the reasonable control of the applicant and could not have been prevented by the exercise of reasonable care.
(2)
Whether a permit denial is not an appropriate action given the severity of the violations, or that the denial is not supported by the applicant’s overall compliance history.
(3)
Whether a permit denial is not an appropriate action because the equipment type, operational character, or emissions capacity of the sources where the violations occurred are significantly different than that of the source for which the permit is being sought.
(4)
Whether the violation has been corrected in a timely fashion or reasonable progress is being made.
(5)
Whether a permit denial is not an appropriate action because a variance has been granted with respect to those violations.
(6)
Whether the violations demonstrate a recurring pattern of noncompliance or pose or have posed a significant risk to the public health or safety or to the environment.
(7)
Whether notice and an opportunity for an office conference was provided pursuant to Section 42334.
(e)
A permit denial pursuant to subdivision (a) which is based solely upon violations which have not been admitted by the applicant or otherwise established by law shall be set aside by a hearing board if a hearing has been requested by the applicant pursuant to Section 42302, unless the air pollution control officer, following the presentation of substantial evidence and the applicant’s opportunity to rebut the evidence, proves that the violation did occur, and that denial is supported by the applicant’s overall compliance history.
