§342H-5  Variances.  (a)  Every
application for a variance shall be made on forms furnished by the department
and shall be accompanied by a complete and detailed description of present
conditions, how present conditions do not conform to applicable standards, and
such other information as the department may by rule prescribe.



(b)  Each application for a variance shall be
reviewed in light of the descriptions, statements, plans, histories, and other
supporting information submitted with the application, such additional
information as may be submitted upon the request of the department, and the
effect or probable effect upon the standards established pursuant to this
chapter.



(c)  Whenever an application for a variance is
approved, the department shall issue a variance authorizing the disposal of
solid waste in nonconformance with applicable standards or rules.  No variance
shall be granted by the department unless the application and the supporting
information clearly show that:



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



(2)  The disposal occurring or proposed to occur does
not substantially endanger human health or safety; and



(3)  Compliance with the applicable standards or rules
from which variance is sought would produce serious hardship without equal or
greater benefits to the public.



(d)  Any variance or renewal thereof shall be
granted within the requirements of this section and for time periods and under
conditions consistent with the reasons therefor, and within the following
limitations:



(1)  If the variance is granted on the ground that
there is no practicable means known or available for the adequate prevention,
control, or abatement of the solid waste pollution involved, it shall be only
until the necessary means for prevention, control, or abatement become
practicable and subject to the taking of any substitute or alternate measures
that the department may prescribe.  No renewal of a variance granted under this
subsection shall be allowed without a thorough review of known and available
means of preventing, controlling, or abating the solid waste pollution
involved;



(2)  The director may issue a variance for a period
not exceeding five years; and



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



(e)  Any variance granted pursuant to this
section may be renewed from time to time on terms and conditions and for
periods not exceeding five years which would be appropriate on initial granting
of a variance; provided that the applicant for renewal has met all of the
conditions specified in the immediately preceding variance; and provided further
that the renewal, and the variance issued in pursuance thereof, shall provide
for a variance not greater than that attained pursuant to the terms of the
immediately preceding variance at its expiration.  No renewal shall be granted
except on application therefor.  Any such application shall be made at least
one hundred eighty days prior to the expiration of the variance.  The director
shall act on an application for renewal within one hundred eighty days of the
receipt of such application.



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



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



(h)  Any application for a variance submitted
pursuant to this chapter, shall be subject to the following public
participation requirements:



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



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



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



(C)  The director shall add the name of any
person or group upon request to a mailing list to receive copies of notices for
all variance applications within the State or within a certain geographical
area;



(2)  The director shall provide a period of not less
than thirty days following the date of the public notice during which time
interested persons may submit their written reviews with respect to the
variance application and the tentative determinations of the department, if
any.  The period for comment may be extended at the discretion of the director;



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



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



(B)  Name and address of each applicant;



(C)  Brief description of each applicant’s
activities or operations which result in the disposal or other activity
described in the variance application;



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



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



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



(4)  The director may hold a public hearing if, after
reviewing the comments submitted under paragraph (2), the director determines
that a public hearing is warranted.  Any hearing brought pursuant to this
subsection shall be held in the geographical area of the proposed disposal or
other proposed activity, or other appropriate area, at the discretion of the director.



(i)  Variances shall not be granted to owners
or operators of municipal solid waste landfill units except where specifically
provided 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]