Section 140. Petitioning for a variance

A. Any person regulated by this chapter may petition the director to grant a variance from any requirement of this chapter. Any person submitting a petition to the director shall meet the provisions of this section. Any petition submitted to the director is subject to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The petition shall be submitted to the director by certified mail and shall include:

1. The petitioner's name and address;

2. A statement of the petitioner's interest in the proposed action;

3. A description of desired action and a citation of the regulation from which a variance is requested;

4. A description of need and justification for the proposed action, including impact of the proposed action on the laboratory's operation;

5. Information demonstrating that the requested variance will meet the purposes and objectives of the relevant regulatory provision and of § 2.2-1105 of the Code of Virginia (Environmental Laboratory Certification Program);

6. The duration of the variance, if applicable;

7. The potential impact of the variance on public health or the environment;

8. Other information believed by the applicant to be pertinent; and

9. The following statement signed by the petitioner or authorized representative: "I certify that I have personally examined and am familiar with the information submitted in this petition and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

C. Petition processing.

1. After receiving a petition that includes the information required in subsection B of this section, the director will determine whether the information received is sufficient to render the decision. If the information is deemed insufficient, the director will specify additional information needed and request that it be furnished.

2. The petitioner may submit the additional information requested, or may attempt to show that no reasonable basis exists for additional information. If the director agrees that no reasonable basis exists for the request for additional information, he will act in accordance with subsection D of this section. If the director finds that a reasonable basis exists to require the submission of such information, he will proceed with the denial action in accordance with the Administrative Process Act.

D. Public review of tentative decision. The director will evaluate the application and issue a draft notice tentatively denying the petition, granting the variance as requested, or granting a modified or partial variance. Notification of this tentative decision will be published in the Virginia Register of Regulations. The director will accept comment on the tentative decision for 30 days, and shall hold a public hearing if a request is received or at his discretion if there is no request. The director will issue a final decision after receipt of comments and after the hearing (if any).

E. Conditions for granting variance request or a modified variance.

1. The director may grant the variance if the applicant demonstrates to the satisfaction of the director that:

a. The proposed variance will meet the goals and purposes of the provisions from which a variance is sought; and

b. The variance does not conflict with federal or state law or regulations.

2. If the director grants a variance request, the notice to the petitioner shall provide that the variance may be terminated upon a finding by the director that the petitioner has failed to comply with any requirements of the variance.

3. When a modified variance is granted, the director may:

a. Specify the termination date of the variance;

b. Include a schedule for:

(1) Compliance, including increments of progress, by the laboratory with each requirement of the variance; and

(2) Implementation by the laboratory of such measures as the director finds necessary in order that the variance may be granted.

F. Decisions to grant or deny a petition in whole or in part, or to modify or terminate a variance are subject to the provisions of Article 3 (§ 2.2-4018 et seq.) of the Virginia Administrative Process Act.

Historical Notes

Derived from Volume 25, Issue 07, eff. January 1, 2009.

Statutory Authority

§ 2.2-1105 of the Code of Virginia.