§342H-5  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 applicable standards, andsuch other information 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 standards established pursuant to thischapter.

(c)  Whenever an application for a variance isapproved, the department shall issue a variance authorizing the disposal ofsolid waste in nonconformance with applicable standards or rules.  No varianceshall be granted by the department unless the application and the supportinginformation clearly show that:

(1)  The continuation of the function or operationinvolved in the disposal occurring or proposed to occur by the granting of thevariance is in the public interest as defined in section 342H-4;

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

(3)  Compliance with the applicable standards or rulesfrom which variance is sought would produce serious hardship without equal orgreater benefits 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 solid waste pollution involved, it shall be onlyuntil the necessary means for prevention, control, or abatement becomepracticable and subject to the taking of any substitute or alternate measuresthat the department 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 solid waste pollutioninvolved;

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

(3)  Every variance granted under this section may besubject to such conditions as the director may prescribe.

(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 provided furtherthat the renewal, and the variance issued in pursuance thereof, shall providefor a variance not greater than that attained pursuant to the terms of theimmediately preceding variance at its expiration.  No renewal shall be grantedexcept on application therefor.  Any such application shall be made at leastone hundred eighty days prior to the expiration of the variance.  The directorshall act on an application for renewal within one hundred eighty days of thereceipt 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)  Any application for a variance submittedpursuant to this chapter, shall be subject to the following publicparticipation requirements:

(1)  Public notices of every completed application fora variance shall be given in a manner designed to inform interested andpotentially interested persons of the proposed disposal or other proposedactivity.  Procedures for giving public notice shall include at least thefollowing:

(A)  Notice shall be given within thegeographical areas of the proposed disposal 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 disposal or other activitydescribed in the variance application;

(D)  A short description of the location ofeach disposal or activity indicating whether the disposal or activity is new orexisting;

(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 disposal orother proposed activity, or other appropriate area, at the discretion of the director.

(i)  Variances shall not be granted to ownersor operators of municipal solid waste landfill units except where specificallyprovided for in the rules adopted pursuant to this part. [L 1989, c 212, pt of§4; am L 1992, c 245, §4; am L 1998, c 2, §91]