[§342P-5.5]  Variances.  (a) Every application for a variance shall be made on a form furnished by thedepartment and shall be accompanied by a complete and detailed description ofpresent conditions, how present conditions do not conform to applicable standards,and any other information that the department may require by rule.

(b)  Each application for a variance shall bereviewed by the department.  Additional information may be requested by thedepartment for review.

(c)  Whenever an application for a variance isapproved, the department shall issue a variance authorizing the deviation fromestablished asbestos or lead-based paint hazards standards.  No variance shallbe granted by the department unless the application and the supportinginformation clearly show that:

(1)  The continuation of the function or operationinvolved in the deviation from asbestos or lead standards occurring or proposedto occur by the granting of the variance is in the public interest;

(2)  The authorized variance occurring or proposed tooccur does not substantially endanger human health or safety; and

(3)  Compliance with the applicable standards or rulesfrom which a variance is sought would produce serious hardship without equal orgreater benefits to the public.

(d)  Any variance or renewal of a varianceshall be granted within the requirements of this section, and for time periodsconsistent with the reasons given within the following limitations:

(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 asbestos or lead involved, it shall be only untilthe necessary means for prevention, control, or abatement becomes practicable. The variance shall be granted subject to the taking of any substitute oralternate measures that the department may prescribe.  No renewal of a variancegranted under this subsection shall be allowed without a thorough review ofknown and available means of preventing, controlling, or abating the asbestosor lead hazards involved;

(2)  The director may issue a variance for a periodnot exceeding six months; and

(3)  Every variance granted under this section shallinclude conditions requiring the grantee to perform air or dust sampling andreport the results of the sampling to the department.

(e)  Any variance granted pursuant to thissection may be renewed for periods not exceeding six months on terms andconditions which would be appropriate on initial granting of a variance;provided that the applicant for renewal has met all of the conditions specifiedin the immediately preceding variance.  No renewal shall be granted without anapplication.  Any renewal application shall be made at least sixty days priorto the expiration of the variance.  The director shall act on an applicationfor renewal within sixty days of the receipt of the application.

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

(g)  No variance shall be construed to preventor limit the application of any emergency provision or procedure provided bylaw.

(h)  Any application for a variance may besubject to public participation.  The contents of the public notice for a varianceapplication shall include at least:

(1)  The name, address, and phone number of the agencyissuing the public notice;

(2)  The name and address of the applicant;

(3)  A brief description of the applicant’s activitiesor operations which result in asbestos or lead hazards, or other activitydescribed in the variance application;

(4)  A short description of the location of eachasbestos or lead-based paint hazard indicating whether the hazard is new orexisting;

(5)  A brief description of the public participationprocedures, including the comment period, which shall be for a period of notless than thirty days following the date of the public notice, and other meansby which interested persons may comment on the variance application and thedepartment’s proposed action; and

(6)  The address and phone number of the state agencyat which interested persons may obtain further information and may inspect acopy of the variance application and supporting and related documents. [L 1998,c 242, pt of §1 and c 311, pt of §18]