Virginia Law

A. The department may grant a variance to this chapter for design, construction, operation, or maintenance requirements contained in the chapter by following the appropriate procedures set forth in this section.

B. Any person or entity wishing to initiate a project for the production, distribution, or reuse of reclaimed water that is not excluded from the provisions of this chapter by 9VAC25-740-50 may apply for a variance to the design, construction, operation, or maintenance requirements of this chapter where requiring the project to comply with such requirements would be contrary to the purpose of State Water Control Law, specifically § 62.1-44.2 of the Code of Virginia. The department may grant a variance if it finds that the hardship imposed, which may be economic, outweighs the benefits of the project and that the granting of such variance would not adversely impact public health or the environment.

C. An application for a variance shall be made in writing and shall include the following:

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

2. The nature and duration of variance requested;

3. A statement of the hardship to the applicant and the anticipated impacts to public health and welfare or the environment if a variance were granted;

4. Suggested conditions that might be imposed on the granting of a variance that would limit any anticipated detrimental impacts on public health or the environment;

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

6. Such other information as may be required to make the determination in accordance with subsection B of this section.

D. The department shall act on any application for a variance submitted pursuant to this section within 60 days of application receipt. In the department's decision to grant or deny a variance for a project to produce, distribute, or reuse reclaimed water, the department shall consider, at a minimum, the following:

1. The effect that such a variance would have on the adequate operation of the project, including operator safety (in accordance with the requirements of the Virginia Department of Labor and Industry, Occupation Safety and Health Administration);

2. The cost and other economic considerations imposed by the regulatory requirement for which the variance has been requested; and

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

E. Disposition of a variance request.

1. If the department proposes to deny a variance request submitted pursuant to this section, the department shall provide the applicant an opportunity to an informal fact-finding proceeding in accordance with § 2.2-4019 of the Code of Virginia. Thereafter, the department may reject any application for a variance and shall notify the applicant in writing of this decision and the basis for the rejection. The department's notice, in this case, constitutes a case decision.

2. If the department proposes to grant a variance request submitted pursuant to this section, the applicant shall be notified in writing of this decision. Such notice shall:

a. Identify the project for which the variance has been granted;

b. Describe the variance;

c. Specify the period of time for which the variance will be effective; and

d. State that the variance shall be terminated when the project comes into compliance with the applicable design, construction, operation, or maintenance requirements of this chapter and may be terminated upon a finding by the department that the project has failed to comply with any requirements or schedules issued in conjunction with the variance.

3. The effective date of a variance described in subdivision 2 of this subsection shall be 15 days following the date of notice to the applicant.

F. All variances granted for the design, construction, operation, or maintenance of a project to produce, distribute, or reuse reclaimed water are nontransferable. Any requirements of the variance shall become part of the permit for the project subsequently issued, reissued, or modified by the department.

G. Where this chapter references the Sewage Collection and Treatment Regulations (9VAC25-790) for design, construction, operation, or maintenance requirements affecting components of a project to produce, distribute, or reuse reclaimed water, an application for a variance to such requirements shall be in accordance with variance procedures described in 9VAC25-790.