302 Mass. Reg. 12.18

Current through Register Vol. 1431; November 27, 2020
Section 12.18 - Variance
(1)General. DCR recognizes that the literal application of 302 CMR 12.00 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 302 CMR 12.00, 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 302 CMR 12.00.
(3)Reasonable or Necessary. Where circumstances are appropriate, DCR may request the applicant to establish, in addition to the criteria listed in 302 CMR 12.18(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;
(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 302 CMR 12.00 and who seeks relief from its application prior to taking any action subject to and in conflict with its provisions 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 302 CMR 12.18(2) and, where required by 302 CMR 12.18(3), in the form prescribed in 302 CMR 12.18(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 302 CMR 12.18 including a detailed explanation as to each such alternative of the factual circumstances that render it unreasonable within the meaning of 302 CMR 12.18(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 302 CMR 12.18(3)(b).
(5)Filings. A person requesting a variance from 302 CMR 12.00 must file a request with the Division Director. 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 Division Director, after considering a request for a variance, requesting and receiving such additional information as may be required, and holding a public hearing if the 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. If the Division Director determines to grant the request in whole or in part, the determination will include a specific finding that the request makes the showing required by 302 CMR 12.18(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 Division Director is final unless, within 21 days, an appeal is taken to the Commissioner pursuant to the provisions of 302 CMR 12.18(7). The Division Director shall notify by mail the person requesting the variance 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 302 CMR 12.00, or any aggrieved party, may appeal the determination of the Division 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 302 CMR 12.18(6) that identifies the request for a variance, states the determination of the Division 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 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. 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 302 CMR 12.18 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 302 CMR 12.18 may otherwise be revoked, modified, or suspended.

302 CMR 12.18

Adopted by Mass Register Issue 1272, eff. 10/24/2014.