Okla. Stat. tit. 27A, § 27A-2-5-109: Variances - Petition - Incremental compliance

schedule - Final order - Periodic reports.

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.