Section 190. Variances

The commissioner may grant a variance to this chapter; however, minor deviations to the criteria contained in Part IV (12VAC5-610-591 et seq.) or Part V (12VAC5-610-660 et seq.) of this chapter may be granted in accordance with 12VAC5-610-280 C. The commissioner shall follow the appropriate procedures set forth in this section in granting a variance.

A. Definition of a variance. A variance is a conditional waiver of a specific regulation which is granted to a specific owner relating to a specific situation or facility and may be for a specified time period.

B. Requirements for a variance. The commissioner may grant a variance if a thorough investigation reveals that the hardship imposed (may be economic) by this chapter outweighs the benefits that may be received by the public and that the granting of such variance does not subject the public to unreasonable health risks.

C. Application for a variance. Any owner who seeks a variance shall apply in writing for a variance. The application shall be sent to the appropriate district and local health department for review and forwarding to the commissioner. The application shall include:

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

2. The nature and duration of the variance requested;

3. Any relevant analytical results including results of relevant tests conducted pursuant to the requirements of this chapter;

4. The hardship imposed by the specific requirement of this chapter;

5. A statement of reasons why the public health and welfare would be better served if the variance were granted;

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

7. Other information, if any, believed pertinent by the applicant; and

8. Such other information as the local health department and the commissioner may require.

D. Evaluation of a variance application.

1. The commissioner shall act on any variance request submitted pursuant to subsection C of this section within 60 calendar days of receipt of the request.

2. In the commissioner's evaluation of a variance application, the commissioner shall consider the following factors:

a. The effect that such a variance would have on the operation of the sewage handling or disposal facility;

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;

d. Any relevant analytical results including results of relevant tests conducted pursuant to the requirements of this chapter;

e. The hardship imposed by enforcing the specific requirement of this chapter;

f. The applicant's statement of reasons why the public health and welfare would be better served if the variance were granted;

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

h. Other information, if any, believed pertinent by the applicant;

i. Such other information as the local health department and the commissioner may require; and

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

E. Disposition of a variance request.

1. The commissioner may reject any applicant for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state reasons for the rejection. The application may petition for a hearing within 30 calendar days to challenge the rejection pursuant to 12VAC5-610-200.

2. If the commissioner proposes to grant a variance request submitted pursuant to subsection C of this section, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, sewage handling or disposal facility covered, and shall specify the period of time for which the variance will be effective and any conditions imposed pursuant to issuing the variance. The effective date of a variance shall be 15 calendar days following its issuance.

3. No owner may challenge the terms set forth in the variance after 30 calendar days have elapsed from the date of issuance.

F. Posting of variances. All variances granted to any sewage handling or disposal facility are nontransferable. 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.

Historical Notes

Derived from VR355-34-02 § 2.7, eff. February 5, 1986; amended, eff. May 11, 1988; Volume 16, Issue 16, eff. July 1, 2000.

Statutory Authority

§§ 32.1-12 and 32.1-164 of the Code of Virginia.