A. Any person seeking a variance from any provision of the Oklahoma Clean Air Act, or from any applicable air quality rule, shall do so by filing a petition for variance with the Department, who shall promptly investigate such petition and make a recommendation to the Council as to the disposition thereof. Upon receiving the recommendation of the Department, the Council may, in its discretion, determine whether or not an administrative hearing is necessary in granting a variance. Such hearing shall be held as provided in the Administrative Procedures Act, except the burden of proof shall be on the petitioner. The petitioner shall be notified by the Department of the time and place of the administrative hearing.

B. The Council may grant individual variances beyond the limitations prescribed in the Oklahoma Clean Air Act, whenever it is found, upon presentation of adequate proof, that compliance with any provision of the Oklahoma Clean Air Act, or any rule promulgated thereunder, will result in an arbitrary and unreasonable taking of property or in the practical closing and elimination of any lawful business, occupation or activity, in either case without sufficient corresponding benefit or advantage to the people, the environment or to public health. The Council may also propose rules applicable to such variances.

C. In determining under what conditions and to what extent a variance from the Oklahoma Clean Air Act or any rule promulgated thereunder may be granted, the Council shall give due recognition to the progress which the person requesting such variance shall have made in eliminating or preventing air pollution. In such a case, the Council shall consider the reasonableness of granting a variance conditioned upon such person effecting a partial abatement of the particular air pollution over a period of time which it shall consider reasonable under the circumstances.

D. If the Council deems proper, such an incremental compliance schedule may be imposed and shall contain a date or dates certain by which compliance with otherwise applicable rules or provisions of the Oklahoma Clean Air Act shall be achieved. The Council may also include provisions whereby a penalty of up to Ten Thousand Dollars ($10,000.00) per day may be assessed for failure to achieve compliance by the date(s) specified in the compliance schedule, if any, and taking into account conditions beyond the control of the applicant.

E. The Council, in conformity with the intent and purpose of the Oklahoma Clean Air Act to protect health, welfare and property, may also prescribe other and different requirements with which the person who receives such variance shall comply.

F. Any variance granted pursuant to the provisions of this section shall constitute a final order, shall be in writing, and shall be granted for a period of time not to exceed three (3) years. Any variance so granted shall require to be submitted to the Department such periodic reports as the Council shall specify as to the progress which such person shall have made toward compliance with any rule as to which a variance has been granted. Such variance may, for good cause shown, be extended on a year-to-year basis by affirmative action of the Council.

G. Nothing in this section shall be construed to preclude the informal disposition of any matter by stipulation, agreed settlement, consent order or default.

Added by Laws 1992, c. 215, § 9, emerg. eff. May 15, 1992. Amended by Laws 1993, c. 145, § 46, eff. July 1, 1993. Renumbered from Title 63, § 1-1810 by Laws 1993, c. 145, § 359, eff. July 1, 1993. Amended by Laws 1993, c. 324, § 12, eff. July 1, 1993.