Administrative Code

Virginia Administrative Code
9/25/2022

Article 2. Variances to Requirements

9VAC20-120-850. Application and conditions.

Article 2
Variances to Requirements

The director may grant a variance from any regulation contained in Parts IV through X to a petitioner if the petitioner demonstrates to the satisfaction of the director that:

1. a. Strict application of the regulation to the facility will result in undue hardship that is caused by the petitioner's particular situation, or

b. Technical conditions exist that make a strict application of the regulation difficult to achieve, and

c. The alternate design or operation will result in a facility that is equally protective of the human health and the environment as that provided for in the regulations; and

2. Granting the variance will not result in an unreasonable risk to the public health or the environment.

Statutory Authority

Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

Historical Notes

Derived from VR672-40-01:1 § 11.2, eff. June 29, 1994.

9VAC20-120-860. Effects of the decisions.

A. When the director renders a decision under this section in accordance with the procedures contained here, he may:

1. Deny the petition;

2. Grant the variance as requested; or

3. Grant a modified or partial variance.

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

1. Specify the termination date of the variance;

2. Include a schedule for:

a. Compliance, including increments of progress, by the facility with each requirement of the variance; and

b. Implementation by the facility of such control measures as the director finds necessary in order that the variance may be granted.

Statutory Authority

Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

Historical Notes

Derived from VR672-40-01:1 § 11.3, eff. June 29, 1994.

9VAC20-120-870. Submission of petition.

A. All petitions submitted to the director shall include:

1. The petitioner's name and address;

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

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

4. A description of need and justification for the proposed action;

5. The duration of the variance, if applicable;

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

7. Other information believed by the petitioner to be pertinent; and

8. The following statements signed by the petitioner or his 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."

B. In addition to the general information required of all petitioners under this article:

1. To be successful the petitioner shall address the applicable standards and criteria.

2. The petitioner shall provide an explanation of the petitioner's particular situation that prevents the facility from achieving compliance with the cited regulation.

3. The petitioner shall provide other information as may be required by the department.

Statutory Authority

Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

Historical Notes

Derived from VR672-40-01:1 § 11.4, eff. June 29, 1994.

9VAC20-120-880. Petition processing.

A. After receiving a petition that includes the information required in 9VAC20-120-870, the director will determine whether the information received is sufficient to render the decision. If the information is deemed to be insufficient, the director will specify additional information needed and request that it be furnished.

B. The petitioner may submit the additional information requested, or may attempt to show that no reasonable basis exists for the request 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 C of this section. If the director continues to believe that a reasonable basis exists to require the submission of such information, he will proceed with the denial action in accordance with the Virginia Administrative Process Act (VAPA).

C. After the petition is deemed complete:

1. The director will make a tentative decision to grant or deny the petition.

2. In case that petition may be tentatively denied, the director will offer the petitioner the opportunity to withdraw the petition, submit additional information, or request the director to proceed with the evaluation.

3. Unless the petition is withdrawn, the director will issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement in the locality where the petitioner is located. The director will accept comment on the tentative decision for 30 calendar days.

4. Upon a written request of any interested person, the director may, at his discretion, hold an informal fact finding meeting described in § 2.2-4011 of the Virginia Administrative Process Act. A person requesting a meeting shall state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The director may in any case decide on his own motion to hold such a meeting.

5. After evaluating all public comments the director will, within 15 calendar days after the expiration of the comment period:

a. Notify the petitioner of the final decision; and

b. Notify all persons who commented on the tentative decision or publish it in a newspaper having circulation in the locality.

Statutory Authority

§ 10.1-1402 of the Code of Virginia.

Historical Notes

Derived from VR672-40-01:1 § 11.5, eff. June 29, 1994; amended, Virginia Register Volume 18, Issue 18, eff. June 19, 2002.

9VAC20-120-890. Petition resolution.

A. In the case of a denial, the petitioner has a right to request a formal hearing to challenge the rejection.

B. 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 variance requirements.

Statutory Authority

Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

Historical Notes

Derived from VR672-40-01:1 § 11.6, eff. June 29, 1994.

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