Section 120. Variances

A. In accordance with § 40.1-6 (9) of the Code of Virginia, a variance to those occupational safety and health regulations set forth at 29 CFR Part 1910 may be granted by the Commissioner of Labor and Industry. Applications for such variances shall be directed to him.

B. The State Health Commissioner or his designee may grant a variance to these regulations by following the appropriate procedures set forth in this subsection.

1. Requirements for a variance to these regulations. The commissioner may grant a variance if he finds that the hardship imposed, which may be economic, outweighs the benefits that may be received by the public and that granting such a variance does not subject the public to unreasonable health risks or environmental pollution.

2. Application for a variance to these regulations. Any camp operator who seeks a variance shall apply in writing within the time period specified in this subsection. The request should be sent to the local health department. Any request for a variance must be made in writing and received by the department prior to the denial of the migrant labor camp permit, or within 30 days after such denial. In the event a person applies for a variance within the 30-day period after the permit has been denied, the date for appealing the denial of the permit, pursuant to 12VAC5-501-160, shall commence from the date on which the department acts on the request for a variance. The application for a variance shall include:

a. A citation to the regulation from which a variance is requested;

b. The nature and duration of the variance requested;

c. Any relevant analytical results including results of relevant tests conducted pursuant to the requirements of these regulations;

d. Statements or evidence that establish that the public health, welfare and environment would not be adversely affected if the variance were granted;

e. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare;

f. Other information believed pertinent by the applicant; and

g. Such other information as the district or local health department or commissioner may require.

C. Evaluation of an application for a variance to these regulations.

1. The commissioner shall act on any request for a variance to these regulations submitted pursuant to this subsection within 60 days of receipt of the request.

2. In evaluating a variance application, the commissioner shall consider such factors as the following:

a. The effect that such a variance would have on the operation of the migrant labor camp;

b. The cost and other economic considerations imposed by this requirement;

c. The effect that such a variance would have on protection of the public health, safety, welfare and the environment; and

d. Such other factors as the commissioner may deem appropriate.

D. Disposition of a request for a variance to these regulations.

1. If the commissioner proposes to deny the variance, he shall provide the camp operator an opportunity to an informal hearing as provided in § 2.2-4019 of the Code of Virginia. Following this opportunity for an informal hearing, the commissioner may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision.

2. If the commissioner proposes to grant a variance request submitted pursuant to this chapter, the applicant shall be notified in writing of this decision. Such notice shall identify the variance and the migrant labor camp involved, and shall specify the period of time for which the variance will be effective. Such notice shall provide that the variance will be terminated when the migrant labor camp comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the migrant labor camp has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be as noted in the variance letter.

3. All variances to these regulations granted to any migrant labor camp are not transferable unless otherwise stated. Each variance shall be attached to the permit to which it is granted. Each variance is revoked when the permit to which it is attached is revoked.

4. No camp operator may challenge the terms or conditions of a variance after 30 calendar days have elapsed from the receipt of the variance.

Historical Notes

Derived from Volume 22, Issue 03, eff. January 1, 2006.

Statutory Authority

§ 32.1-211 of the Code of Virginia.