[§342P-5.5] Variances. (a) Every application for a variance shall be made on a form 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 any other information that the department may require by rule.
(b) Each application for a variance shall be reviewed by the department. Additional information may be requested by the department for review.
(c) Whenever an application for a variance is approved, the department shall issue a variance authorizing the deviation from established asbestos or lead-based paint hazards standards. 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 deviation from asbestos or lead standards occurring or proposed to occur by the granting of the variance is in the public interest;
(2) The authorized variance occurring or proposed to occur does not substantially endanger human health or safety; and
(3) Compliance with the applicable standards or rules from which a variance is sought would produce serious hardship without equal or greater benefits to the public.
(d) Any variance or renewal of a variance shall be granted within the requirements of this section, and for time periods consistent with the reasons given 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 asbestos or lead involved, it shall be only until the necessary means for prevention, control, or abatement becomes practicable. The variance shall be granted 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 asbestos or lead hazards involved;
(2) The director may issue a variance for a period not exceeding six months; and
(3) Every variance granted under this section shall include conditions requiring the grantee to perform air or dust sampling and report the results of the sampling to the department.
(e) Any variance granted pursuant to this section may be renewed for periods not exceeding six months on terms and conditions 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. No renewal shall be granted without an application. Any renewal application shall be made at least sixty days prior to the expiration of the variance. The director shall act on an application for renewal within sixty days of the receipt of the application.
(f) The director may allow a hearing in accordance with chapter 91 in relation to an application for the issuance, renewal, or modification of a variance.
(g) No variance shall be construed to prevent or limit the application of any emergency provision or procedure provided by law.
(h) Any application for a variance may be subject to public participation. The contents of the public notice for a variance application shall include at least:
(1) The name, address, and phone number of the agency issuing the public notice;
(2) The name and address of the applicant;
(3) A brief description of the applicant’s activities or operations which result in asbestos or lead hazards, or other activity described in the variance application;
(4) A short description of the location of each asbestos or lead-based paint hazard indicating whether the hazard is new or existing;
(5) A brief description of the public participation procedures, including the comment period, which shall be for a period of not less than thirty days following the date of the public notice, and other means by which interested persons may comment on the variance application and the department’s proposed action; and
(6) The address and phone number of the state agency at which interested persons may obtain further information and may inspect a copy of the variance application and supporting and related documents. [L 1998, c 242, pt of §1 and c 311, pt of §18]
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