Section 40. Variances

A. The director may grant a variance to a design or operational standard by following the appropriate procedures set forth in this chapter.

B. Requirements. The director 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 the granting of such variance does not subject the public to unreasonable health risks or environmental pollution.

C. Application. Any owner may apply in writing for a variance. The application should be sent to the appropriate area engineer as specified, for evaluation. The application shall include:

1. A citation of the design or operational standard from which a variance is requested.

2. The nature and duration of variance requested.

3. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted.

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

5. Other information, if any, believed to be pertinent by the applicant.

6. Such other information as may be required to make the determination in accordance with this chapter.

D. Consideration. The director shall act on any variance request submitted pursuant to this chapter within 60 days of receipt of request. In the director's consideration of whether a sewerage systems or treatment works variance should be granted, the director shall consider such factors as the following:

1. The effect that such a variance would have on the adequate operation of the sewerage systems or treatment works, including operator safety (in accordance with requirements of the Virginia Department of Labor and Industry, Occupational Safety and Health Administration (VOSH)).

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

3. The effect that such a variance would have on the protection of the public health and welfare, or the environment.

E. Disposition. The director will offer the owner an opportunity to participate or become informed as to the variance processing and decisions.

1. The director may grant the variance request and if the director proposes to deny the variance he shall provide the owner an opportunity to an informal fact-finding proceeding as provided in § 2.2-4019 of the Administrative Process Act. Following this opportunity for an informal fact-finding proceeding, the director 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 director proposes to grant a variance request submitted pursuant to this chapter, or standards contained in this chapter, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, the sewerage systems or treatment works 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 sewerage systems or treatment works come into compliance with the applicable design or operational standard and may be terminated upon a finding by the director that the sewerage systems or treatment works has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be 15 days following its issuance.

F. Posting. All variances granted for the design or operation of any sewerage systems or treatment works are nontransferable. Any requirements of the variance shall become part of the permit of the sewerage systems or treatment works subsequently granted by the director.

Historical Notes

Former 12VAC5-581-70 derived from Volume 18, Issue 10, eff. February 27, 2002; amended and adopted as 9VAC25-790-40, Virginia Register Volume 20, Issue 09, eff. February 12, 2004; Errata 20:12 VA.R. 1526 February 23, 2004.

Statutory Authority

§ 62.1-44.19 of the Code of Virginia.