(a)  The south coast district hearing board, in determining whether the petitioner has presented evidence sufficient to make the findings specified in subdivision (a) of Section 42352, shall consider, in addition to any other relevant factors, both of the following:

(1)  In determining whether conditions exist that are beyond the reasonable control of the petitioner, the hearing board shall consider whether the petitioner took actions to comply or seek a variance, that were timely and reasonable under the circumstances. In so doing, the hearing board shall consider actions taken by the petitioner since the adoption of the rule from which the variance is sought.

(2)  In determining whether requiring compliance would result in either an arbitrary or unreasonable taking of property or the practical closing and elimination of a lawful business, the hearing board shall consider whether an unreasonable burden would be imposed upon the petitioner if immediate compliance is required.

(b)  (1)  As used in this subdivision, “small business” means a business that is independently owned and operated and meets all of the following criteria:

(A)  The number of employees is 10 or less.

(B)  The total gross annual receipts are five hundred thousand dollars ($500,000) or less.

(C)  Emits not more than four tons per year of any nonattainment air contaminant or its precursor.

(2)  If the petitioner is a small business, the hearing board shall consider the factors specified in subdivision (a) in the following manner:

(A)  In determining whether the petitioner took timely actions to comply or seek a variance, the hearing board shall make specific inquiries into the reasons for any claimed ignorance of the requirement from which a variance is sought.

(B)  In determining whether the petitioner took reasonable actions to comply, the hearing board shall make specific inquiries into the petitioner’s financial and other capabilities to comply.

(C)  In determining whether the burden of requiring immediate compliance would be unreasonable, the hearing board shall make specific inquiries into, and shall balance, the impact to the petitioner’s business and the benefit to the environment that would result if the petitioner is required to immediately comply.

(c)  Where the petitioner is a governmental agency, public district, or any other governmental or public entity, in determining whether an unreasonable burden would be imposed, the hearing board shall consider any effects of requiring immediate compliance on the availability of essential public services.

(Amended by Stats. 2000, Ch. 890, Sec. 17. Effective January 1, 2001.)