Variances

(1) General. The Department recognizes that the literal application of 310 CMR 19.000 to all persons and activities may impose significant hardships in individual situations, frustrate the underlying legislative and regulatory purposes, or adversely affect the public interest. Therefore, in the exercise of the Department's discretion and upon a proper and timely demonstration, a variance from the application of specific provisions of 310 CMR 19.000, other than those that embody statutory requirements, may be available in an individual case to a person whose activities are governed by them. (2) Required Demonstration. A variance request shall include, at a minimum, the following information demonstrating, to the Department's satisfaction, that: (a) compliance with the provision would, on the basis of conditions unique to the applicant's particular situation, impose unreasonable economic, technological or safety burdens on the applicant or the public; (b) substitute measures will provide the same or greater degree of protection to public health, safety and the environment as the application of the regulation(s) from which a variance is requested; and (c) the desired relief may be granted without substantial detriment to the public interest and without nullifying or substantially derogating from the intent of 310 CMR 19.000. (3) Reasonable or Necessary. Where circumstances are appropriate, the Department may request the applicant to establish, in addition to the criteria listed in 310 CMR 19.080(2), either or both of the following: (a) that no reasonable conditions or alternatives exist that would allow the project to proceed without the requested variance; and/or (b) the variance is necessary to accommodate an overriding community, regional, state, or national public interest. (4) Request for Variance. A request for a variance may be made only by or on behalf of a person whose activities are governed by 310 CMR 19.000 and who seeks relief from their application prior to taking any action subject to and in conflict with them and does so in a timely manner. The request shall be made in writing and must contain, at a minimum, the information necessary to establish the showing required by 310 CMR 19.080(2) and, where required by 310 CMR 19.080(3), in the form prescribed in 310 CMR 19.080(4)(a) through (d): (a) specific reference, by citation to Code of Massachusetts Regulations, to each regulatory provision from which relief is sought; (b) an analysis and evaluation, prepared by a qualified professional, of all known technically accepted alternative methods of pursuing the activity in compliance with 310 CMR 19.000 including a detailed explanation as to each such alternative of the factual circumstances that render it unreasonable within the meaning of 310 CMR 19.080(1); (c) a detailed description, prepared by a qualified professional, of the substitute measures intended to provide the same or greater degree of protection to the public health, safety and the environment as the application of the regulation(s) from which a variance is requested would provide, accompanied by an opinion, including the basis on which that opinion was formed, that the substitute measures will in fact perform their intended function; and (d) evidence that an overriding public interest is associated with the project which justifies a variance from the regulation(s) if required by the Department pursuant to 310 CMR 19.080(3)(b). (5) Filings. A person requesting a variance from 310 CMR 19.000 must file a request with the Regional Director of the appropriate regional office and contemporaneously serve copies of it upon the board of health and all abutters of the property upon which the activity is or may be located. Filing and service may be made by hand or by using a suitable form of mail addressed to the person to be served and requiring the return of a signed receipt. (6) Initial Action. The Regional Director, after considering a request for a variance, requesting and receiving such additional information as may be required, and holding a public hearing should public interest in the matter or the technical complexity or uniqueness of the issues warrant doing so, shall grant or refuse the request in whole or in part. Should the Regional Director determine to grant the request in whole or in part, the determination will include a specific finding that the request makes the showing required by 310 CMR 19.080(2); a specific statement that the application of certain specified regulation(s) is altered or waived; and a specification of the requirements or conditions imposed, if any. The determination of the Regional Director is final unless, within 21 days, an appeal is taken to the Commissioner pursuant to the provisions of 310 CMR 19.080(7). The Regional Director shall notify by mail the person requesting the variance, the board of health, and any abutter who has requested notice of the determination of the action taken upon the request. (7) Appeal to the Commissioner. (a) A person requesting a variance from the application of 310 CMR 19.000, the board of health where the affected property is located, or any aggrieved party may appeal the determination of the Regional Director to the Commissioner. (b) An appeal is taken by delivering a request for a hearing to the Commissioner within the time period established by 310 CMR 19.080(6) that identifies the request for a variance, states the determination of the Director upon it, specifies why the party is aggrieved and the grounds for the appeal. The Department shall hold a hearing upon and determine the appeal pursuant to the provisions of 310 CMR 1.00. In any such proceeding it shall be the burden of the person requesting the variance to demonstrate how the criteria are met. (c) Notice of an appeal shall be given to the applicant by the party appealing the decision concurrently with filing the appeal. (8) Expiration, Modification or Suspension of a Variance. Any variance or other modification made pursuant to 310 CMR 19.080 may be subject to such qualification, revocation, suspension, or expiration as the Department expresses in the variance. A variance or other modification made pursuant to 310 CMR 19.080 may otherwise be revoked, modified, or suspended pursuant to 310 CMR 19.039 or 19.040.