Section 170. Variances

A. The commissioner may grant a variance to this chapter. The commissioner shall follow the appropriate procedures set forth in this section in granting a variance.

B. A variance is a conditional waiver of a specific regulation which is granted to a specific person and may be for a specified time period.

C. 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.

D. Any person who seeks a variance shall apply in writing for a variance. The application shall be sent to the commissioner for review. 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 information in support of the request including information relating to experience or education received, or evaluations and designs 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 commissioner may require.

E. The commissioner shall act on any variance request submitted pursuant to subsection D of this section within 60 working days of receipt of the request.

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

1. The effect that such a variance would have on the performance of the AOSE/PE or system;

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

3. The effect that such a variance would have on protection of the public health;

4. Any relevant information in support of the request including information relating to experience or education received, or evaluations and designs conducted pursuant to the requirements of this chapter;

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

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

7. 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;

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

9. Such other information as the commissioner may require; and

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

G. Disposition of a variance request:

1. The commissioner may reject any application for a variance by sending notice to the applicant. The rejection notice shall be in writing and shall state the reasons for rejection. The applicant may petition for a hearing to challenge the rejection pursuant to 12VAC5-615-180 within 30 calendar days of receipt of notice of rejection.

2. If the commissioner proposes to grant a variance request submitted pursuant to subsection D of this section, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, person, property, or 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 person may challenge the terms set forth in the variance after 30 calendar days have elapsed from the date of issuance.

H. All variances granted are nontransferable. A variance may be attached to a person's certification to act as an AOSE or to a permit or other approval document. A variance is revoked when the permit or other approval or AOSE certification to which it is attached is revoked.

I. Any request for a variance must be made by the applicant in writing and received by the department prior to the denial of a certification for authorization as an AOSE, or within 30 days after such denial.

Historical Notes

Derived from Volume 18, Issue 18, eff. July 1, 2002.

Statutory Authority

§§ 32.1-163.5 and 32.1-164 of the Code of Virginia.