Administrative Code

Virginia Administrative Code
6/19/2021

Part VII. Variance Application Procedures

9VAC20-81-700. General.

A. Any person affected by this chapter may apply to the department for a variance from any requirement of this chapter. Variance determinations shall be subject to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The department shall not accept any variance application relating to:

1. Equivalent testing or analytical methods contained in EPA Publication SW-846;

2. Definition of solid waste contained in 9VAC20-81-95;

3. Criteria used for classification of solid waste disposal facilities contained in 40 CFR Parts 257 and 258, as amended;

4. A change in the regulatory requirements that the applicant is currently violating until such time as the violation has been resolved through the enforcement process; and

5. Any of the requirements of Part VIII (9VAC20-81-800 et seq.) of this chapter.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Parts 257 and 258.

Historical Notes

Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011; amended, Virginia Register Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-81-710. Solid waste classification exemption procedure.

A. Applicability.

1. A person who uses, reuses, or reclaims waste that is managed entirely within the Commonwealth may apply to the department to exclude the waste at a particular site from the classification as the solid waste (see Part II of this chapter). The conditions under which an application for a variance will be accepted are shown in 9VAC20-81-710 B. The wastes excluded under such applications may still, however, remain classified as a solid waste for the purposes of other regulations issued by the Virginia Waste Management Board or other agencies of the Commonwealth.

2. A person who uses, reuses, or reclaims materials from a generating site outside the Commonwealth and who causes them to be brought into the Commonwealth for use, reuse, or reclamation shall first obtain favorable decision from the appropriate authorities in that state before the waste may be considered for an exemption by the director.

B. Conditions for an exemption. As the result of an application and in accordance with the standards and criteria in 9VAC20-81-710 C and the procedures in 9VAC20-81-760, the director may determine on a case-by-case basis that the following used, reused, or reclaimed materials are exempt for the purposes of this chapter:

1. Materials that are accumulated speculatively without sufficient amounts being used, reused or reclaimed (9VAC20-81-95);

2. Materials that are reclaimed and then reused within the original primary production process in which they were generated;

3. Materials that have been reclaimed but shall be reclaimed further before the materials are completely recovered; and

4. Materials that are reclaimed and then reused in applications involving their placement into land.

C. Standards and criteria for exemptions.

1. The director may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being used, reused, or reclaimed if the applicant demonstrates that sufficient amounts of the material will be used, reused, or reclaimed or transferred for recycling use, reuse, or reclamation in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The director's decision will be based on the following standards and criteria:

a. The manner in which the material is expected to be used, reused, or reclaimed, and when the material is expected to be used, reused, or reclaimed, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangement for use, reuse, or reclamation);

b. The reason that the applicant has accumulated the material for one or more years without use, reuse, or reclamation of 75% of the volume accumulated at the beginning of the year;

c. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is used, reused, or reclaimed;

d. The extent to which the material is handled to minimize loss; and

e. Other relevant factors.

2. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original primary production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

a. How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

b. The prevalence of the practice on an industrywide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

e. The location of the reclamation operation in relation to the production process;

f. Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

g. Whether the person who generates the material also reclaims it; and

h. Other relevant factors.

3. The director may grant requests for a variance from classifying as a solid waste those materials that have been reclaimed but shall be reclaimed further before recovery is completed if, after initial reclamation, the resulting material is commodity-like (even though it is not yet a commercial product, and has to be reclaimed further). This determination will be based on the following factors:

a. The degree of processing the material has undergone and the degree of further processing that is required;

b. The value of the material after it has been reclaimed;

c. The degree to which the reclaimed material is like an analogous raw material;

d. The extent to which an end market for the reclaimed material is guaranteed;

e. The extent to which the reclaimed material is handled to minimize loss; and

f. Other relevant factors.

4. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused in applications involving placement into land. This determination will be based on the following factors:

a. How economically advantageous is the utilization process using reclaimed materials compared to the virgin materials;

b. The prevalence of the practice on an industrywide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The location of the generating and reclamation operations in relation to the utilization process;

e. The chemical and physical characteristics of the material prior and after the reclamation process;

f. An estimate of the rate of annual usage of the reclaimed material;

g. Whether the person who generates the material also reclaims it;

h. Proximity of emplaced materials to ground and surface waters; and

i. Other factors relevant to public health and the environment.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.

Historical Notes

Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-720. Variances to permitting requirements.

A. Application and conditions. The director may grant a variance from any regulation contained in Parts III (9VAC20-81-100 et seq.), IV (9VAC20-81-300 et seq.), V (9VAC20-81-400 et seq.), and VI (9VAC20-81-610 et seq.) of this chapter to an applicant if the applicant 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 applicant's particular situation;

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

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

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

B. Effects of the decisions.

1. When the director renders a decision under this section in accordance with the procedures contained in 9VAC20-81-760, he may:

a. Deny the application;

b. Grant the variance as requested; or

c. Grant a modified or partial variance.

2. When a variance is granted, the director may:

a. Specify the termination date of the variance; or

b. Include a schedule for:

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

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

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.

Historical Notes

Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-740. Variance to location of the groundwater monitoring system.

A. The applicant may request a variance to the location for the groundwater monitoring system other than at the disposal unit boundary as required by 9VAC20-81-250 A 3 a if he can demonstrate that the response time is sufficiently long to identify and remediate or otherwise contain groundwater that may become impacted before it reaches the facility boundary. This alternate point of compliance with the groundwater monitoring requirements shall be located within the facility boundary and shall not be located farther downgradient than 500 feet from the disposal unit boundary.

B. The application shall provide information on:

1. The hydrogeologic characteristics of the facility and surrounding land. The information shall include an estimate of the width and depth of a plume that may migrate from the disposal unit.

2. The volume and physical and chemical characteristics of the leachate.

3. The quality, quantity, and direction of groundwater flow. This information shall include a determination whether contaminants from the unit will be detectable at the proposed point of compliance.

4. The proximity and withdrawal rate of the groundwater users. This information shall include the estimate of time of travel to private or public supply wells.

5. The availability of alternate drinking water supplies in the event of a groundwater contamination problem.

6. The existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the ground water and whether groundwater is currently used or reasonably expected to be used for drinking water.

7. Practicable capability of the owner or operator. The information shall include an indication of financial capability of the owner or operator to maintain a longer and more costly corrective action program owing to the longer detection time frame associated with the proposed point of compliance.

C. Based on the information received the director will consider the potential overall effect on public health, welfare, and safety of the proposed point of compliance. Consideration will include:

1. Distance to the facility boundary and to the nearest groundwater user or potentially affected surface water;

2. The response time required to remediate or otherwise contain groundwater that may become impacted and potentially affect downgradient water supplies; and

3. Risk that detection may not be representative of worst case condition of the groundwater.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.

Historical Notes

Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

9VAC20-81-760. Administrative procedures.

A. Submission of application.

1. General application requirements. All applications submitted to the director shall include:

a. The applicant's name and address;

b. A statement of applicant's interest in the proposed action;

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

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

e. The duration of the variance, if applicable;

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

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

h. The following statements signed by the applicant or his authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this application 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."

i. In accordance with the provisions of § 10.1-1408.1 of the Code of Virginia, no application for a variance allowing a noncaptive industrial landfill to expand or increase capacity shall be allowed without providing local government certification and disclosure information in accordance with the provisions of 9VAC20-81-450.

2. Additional requirements for applications under 9VAC20-81-710. In addition to the general information required of all applicants under subdivision 1 of this subsection:

a. To be successful the applicant shall address the standards and criteria listed in 9VAC20-81-710 C.

b. For applications submitted under 9VAC20-81-710 B 4 the following additional information is required:

(1) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the application;

(2) A description of the methodologies and equipment used to obtain representative samples and analyses, to include:

(a) The name and address of the laboratory facility performing the sampling on tests of the waste, if different from that of the applicant;

(b) The qualifications of the persons sampling and testing the wastes;

(c) The dates of sampling and testing;

(d) A description of sample handling and preparation techniques, including techniques used for extraction, containerization, and preservation of samples; and

(e) A description of the tests performed and the results obtained.

(3) The description of the reclamation processes.

3. Additional requirements for application under 9VAC20-81-720. In addition to the general information required of all applicants under subdivision 1 of this subsection, the applicant shall submit:

a. An explanation of the applicant's particular situation that prevents the facility from achieving compliance with the cited regulation; and

b. Other information as may be required by the department.

B. Application processing.

1. After receiving an application that includes the information required in subsection A of this section, 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 request that additional information be furnished.

2. The applicant may submit the additional information requested, or may demonstrate that the additional information should not be required. If the director agrees that the additional information should not be required, he will act in accordance with subdivision 3 of this subsection.

3. After the application is deemed complete:

a. The director will make a tentative decision to grant or deny the variance request.

b. If the variance request is tentatively denied, the director will offer the applicant the opportunity to withdraw the request, submit additional information, or proceed with the evaluation.

c. The director will issue a notice tentatively granting the variance request. Notification of this tentative decision will be provided by newspaper advertisement in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days.

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

(1) Notify the applicant of the final decision; and

(2) Notify all persons who commented on the tentative decision.

C. Decision resolution.

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

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

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6941 et seq.; 40 CFR Part 258.

Historical Notes

Derived from Virginia Register Volume 27, Issue 12, eff. March 16, 2011.

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