§342D-7  Variances.  (a)  Everyapplication for a variance shall be made on forms furnished by the departmentand shall be accompanied by a complete and detailed description of presentconditions, how present conditions do not conform to standards, and such otherinformation as the department may by rule prescribe.

(b)  Each application for a variance shall bereviewed in light of the descriptions, statements, plans, histories, and othersupporting information submitted with the application, such additionalinformation as may be submitted upon the request of the department, and theeffect or probable effect upon the water quality standards established pursuantto this chapter.

(c)  Whenever an application is approved, thedepartment shall issue a variance authorizing the discharge of water pollutantin excess of applicable standards.  No variance shall be granted by thedepartment unless the application and the supporting information clearly showthat:

(1)  The continuation of the function or operation involvedin the discharge of waste occurring or proposed to occur by the granting of thevariance is in the public interest as defined in section 342D-6;

(2)  The discharge occurring or proposed to occur doesnot substantially endanger human health or safety; and

(3)  Compliance with the rules or standards from whichvariance is sought would produce serious hardship without equal or greaterbenefits to the public.

(d)  Any variance or renewal thereof shall begranted within the requirements of this section and for time periods and underconditions consistent with the reasons therefor, and within the followinglimitations:

(1)  If the variance is granted on the ground thatthere is no practicable means known or available for the adequate prevention,control, or abatement of the water pollution involved, it shall be only untilthe necessary means for prevention, control, or abatement become practicableand subject to the taking of any substitute or alternate measures that thedepartment may prescribe.  No renewal of a variance granted under thissubsection shall be allowed without a thorough review of known and availablemeans of preventing, controlling, or abating the water pollution involved.

(2)  The director may issue a variance for a periodnot exceeding five years.

(3)  Every variance granted under this section shallinclude conditions requiring the grantee to perform discharge or effluentsampling and report the results of such sampling to the department.

(e)  Any variance granted pursuant to thissection may be renewed from time to time on terms and conditions and forperiods not exceeding five years which would be appropriate on initial grantingof a variance; provided that the applicant for renewal has met all of theconditions specified in the immediately preceding variance; and providedfurther that the renewal, and the variance issued in pursuance thereof, shallprovide for discharge not greater than that attained pursuant to the terms ofthe immediately preceding variance at its expiration.  No renewal shall begranted except on application therefor.  Any such application shall be made atleast one hundred eighty days prior to the expiration of the variance.  Thedirector shall act on an application for renewal within one hundred eighty daysof the receipt of such application.

(f)  The director may afford a hearing inaccordance with chapter 91 in relation to an application for the issuance,renewal, or modification of a variance.

(g)  No variance granted pursuant to thischapter shall be construed to prevent or limit the application of any emergencyprovisions and procedures provided by law.

(h)  Notwithstanding any provision in thissection, no variance shall be granted or renewed pursuant to this chapter withrespect to any discharge of water pollutants or wastes that is in violation ofthe requirements of the Federal Water Pollution Control Act and the amendmentsthereto.

(i)  Any application for a variance, submittedpursuant to this chapter, shall be subject to the public participationrequirements listed below:

(1)  Public notices of every completed application fora variance shall be circulated in a manner designed to inform interested andpotentially interested persons of the proposed discharge or other proposedactivity.  Procedures for the circulation of public notices shall include atleast the following:

(A)  Notice shall be given within thegeographical areas of the proposed discharge or other proposed activity;

(B)  Notice shall be mailed to any person orgroup upon request; and

(C)  The director shall add the name of anyperson or group upon request to a mailing list to receive copies of notices forall variance applications within the State or within a certain geographicalarea;

(2)  The director shall provide a period of not lessthan thirty days following the date of the public notice during which timeinterested persons may submit their written reviews with respect to thevariance application and the tentative determinations of the department, ifany.  The period for comment may be extended at the discretion of the director;

(3)  The contents of public notice of applications forvariances shall include at least the following:

(A)  Name, address, and phone number of agencyissuing the public notice;

(B)  Name and address of each applicant;

(C)  Brief description of each applicant’sactivities or operations which result in the discharge or other activitydescribed in the variance application (e.g., rock crushing plant, municipalwaste treatment plant, raw sugar factory, or pineapple cannery);

(D)  A short description of the location ofeach discharge indicating whether the discharge is new or existing;

(E)  A brief description of the procedures forthe formulation of final determinations, including the thirty-day commentperiod required by paragraph (2) and any other means by which interestedpersons may influence or comment upon those determinations; and

(F)  Address and phone number of state agencypremises at which interested persons may obtain further information and inspecta copy of the variance applications and supporting and related documents; and

(4)  The director may hold a public hearing if, afterreviewing the comments submitted under paragraph (2), the director determinesthat a public hearing is warranted.  Any hearing brought pursuant to thissubsection shall be held in the geographical area of the proposed discharge orother proposed activity, or other appropriate area, at the discretion of thedirector. [L 1989, c 212, pt of §2; am L 1998, c 2, §88]