Section 170. Variances

Only the commissioner or the deputy commissioners may grant a variance to this chapter. (See §§ 32.1-12 and 32.1-22 of the Code of Virginia and 12VAC5-630-90 B.) The commissioner or the deputy commissioners shall follow the appropriate procedures set forth in this subsection in granting a variance.

A. Requirements for a variance. The commissioner may grant a variance if a thorough investigation reveals that the hardship imposed by this chapter outweighs the benefits that may be received by the public. Further, the granting of such a variance shall not subject the public to unreasonable health risks or jeopardize ground water resources.

Exception: The commissioner shall not grant a variance for an improperly located Class IV well that was located pursuant to an express Class IV permit, as described under 12VAC5-630-260 and 12VAC5-630-270, if the improper location of the well is a result of the failure by the owner, his agent, or the well driller to provide complete or accurate information on the site plan submitted with the application or to install the well in accordance with the permit.

B. Application for a variance. Any owner who seeks a variance shall apply in writing within the time period specified in 12VAC5-630-210 B. The application shall be signed by the owner, addressed and sent to the commissioner at the State Department of Health in Richmond. The application shall include:

1. A citation to the section 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. Statements or evidence why the public health and welfare as well as the ground water resources would not be degraded if the variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare or ground water resources;

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

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

C. Evaluation of a variance application.

1. The commissioner shall act on any variance request submitted pursuant to 12VAC5-630-170 B within 60 calendar days of receipt of the request.

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

a. The effect that such a variance would have on the construction, location, or operation of the private well;

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. The effect that such a variance would have on protection of ground water resources; and

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

D. Disposition of a variance request.

1. The commissioner may deny any application for a variance by sending a denial notice to the applicant by certified mail. The notice shall be in writing and shall state the reasons for the denial.

2. If the commissioner proposes to grant a variance request submitted pursuant to 12VAC5-630-170 B, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, private well covered, and shall specify the period of time for which the variance will be effective. The effective date of a variance shall be as stated in the variance.

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

E. Posting of variances. All variances granted to any private wells are transferable from owner to owner 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.

F. Hearings on disposition of variances. Subject to the time limitations specified in 12VAC5-630-210, hearings on denials of an application for a variance or on challenges to the terms and conditions of a granted variance may be held pursuant to 12VAC5-630-180 A or B, except that informal hearings under 12VAC5-630-180 A shall be held by the commissioner or his designee.

Historical Notes

Derived from VR355-34-100 § 2.7, eff. April 1, 1992.

Statutory Authority

§§ 32.1-12 and 32.1-176 of the Code of Virginia.