Current through Register Vol. 41, No. 3, September 23, 2024
A. Any
person regulated by this chapter may petition the director to grant a variance
from any requirement of this chapter. Any person submitting a petition to the
director shall meet the provisions of this section. Any petition submitted to
the director is subject to the Virginia Administrative Process Act (§ 2.2-4000
et seq. of the Code of Virginia).
B. The petition shall be submitted to the
director by certified mail and shall include:
1. The petitioner's name and
address;
2. A statement of the
petitioner's interest in the proposed action;
3. A description of desired action and a
citation of the regulation from which a variance is requested;
4. A description of need and justification
for the proposed action, including impact of the proposed action on the
laboratory's operation;
5.
Information demonstrating that the requested variance will meet the purposes
and objectives of the relevant regulatory provision and of § 2.2-1105 of the
Code of Virginia (Environmental Laboratory Certification Program);
6. The duration of the variance, if
applicable;
7. The potential impact
of the variance on public health or the environment;
8. Other information believed by the
applicant to be pertinent; and
9.
The following statement signed by the petitioner or authorized representative:
"I certify that I have personally examined and am familiar with the information
submitted in this petition 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."
C. Petition processing.
1. After receiving a petition that includes
the information required in subsection B of this section, the director will
determine whether the information received is sufficient to render the
decision. If the information is deemed insufficient, the director will specify
additional information needed and request that it be furnished.
2. The petitioner may submit the additional
information requested, or may attempt to show that no reasonable basis exists
for additional information. If the director agrees that no reasonable basis
exists for the request for additional information, he will act in accordance
with subsection D of this section. If the director finds that a reasonable
basis exists to require the submission of such information, he will proceed
with the denial action in accordance with the Administrative Process
Act.
D. Public review of
tentative decision. The director will evaluate the application and issue a
draft notice tentatively denying the petition, granting the variance as
requested, or granting a modified or partial variance. Notification of this
tentative decision will be published in the Virginia Register of Regulations.
The director will accept comment on the tentative decision for 30 days, and
shall hold a public hearing if a request is received or at his discretion if
there is no request. The director will issue a final decision after receipt of
comments and after the hearing (if any).
E. Conditions for granting variance request
or a modified variance.
1. The director may
grant the variance if the applicant demonstrates to the satisfaction of the
director that:
a. The proposed variance will
meet the goals and purposes of the provisions from which a variance is sought;
and
b. The variance does not
conflict with federal or state law or regulations.
2. If the director grants a variance request,
the notice to the petitioner shall provide that the variance may be terminated
upon a finding by the director that the petitioner has failed to comply with
any requirements of the variance.
3. When a modified variance is granted, the
director may:
a. Specify the termination date
of the variance;
b. Include a
schedule for:
(1) Compliance, including
increments of progress, by the laboratory with each requirement of the
variance; and
(2) Implementation by
the laboratory of such measures as the director finds necessary in order that
the variance may be granted.
F. Decisions to grant or deny a petition in
whole or in part, or to modify or terminate a variance are subject to the
provisions of Article 3 (§ 2.2-4018 et seq.) of the Virginia Administrative
Process Act.
Statutory Authority
§ 2.2-1105 of the Code of
Virginia.
