260.405. Variances granted, when.
Variances granted, when.
260.405. 1. Unless prohibited by any federal hazardouswaste management act, the commission may grant individualvariances from the requirements of sections 260.350 to 260.430whenever it is found, upon presentation of adequate proof, thatcompliance with any provision of sections 260.350 to 260.430 orany standard, rule or regulation, order or license or permit termor condition adopted or issued hereunder will result in anarbitrary and unreasonable taking of property or in the practicalclosing and elimination of any lawful business, occupation oractivity, in either case without sufficient corresponding benefitor advantage to the people; except that, no variance shall begranted where the effect of a variance will permit thecontinuance of a condition which unreasonably poses a present orpotential threat to the health of humans or other livingorganisms; and except, also, that any variance so granted shallnot be so construed as to relieve the person who receives thevariance from any liability imposed by other law for thecommission or maintenance of a nuisance or damage to the propertyor rights of any person.
2. In determining under what conditions and to what extent avariance may be granted, the commission shall weigh the equitiesinvolved and the advantages and disadvantages to the applicantand to those affected by the hazardous waste management practicesof the applicant.
3. Variances shall be granted for a period of time and undersuch terms and conditions as shall be specified by the commissionin its order. In no event shall the variance be granted for aperiod of time greater than one year and shall not be renewableunless circumstances can be shown which preclude compliancewithin the one-year period of the variance and the renewal willnot result in an unreasonable risk to the health of humans or theenvironment.
4. (1) Any person seeking a variance shall file a petitionfor a variance with the department. A filing fee of fiftydollars shall be paid to the state of Missouri with eachpetition.
(2) Upon the receipt of a request for a variance deemedsubstantive by the department, the department shall by mailnotify all record owners of property within one mile of the outerboundaries of the site, the county, and the village, town or citywithin which the facility for which the variance is proposed islocated. If the variance is substantive, as determined byregulation, the department shall notify the public through pressrelease and a notice placed in a newspaper of general circulationserving the area within which the facility is located. Thedepartment shall promptly investigate the petition and make arecommendation to the commission within sixty days after thepetition is received as to whether the variance should be grantedor denied. The department shall promptly notify the petitionerof its action and at the same time shall issue public notice bypress release or advertisement and shall notify all record ownersof adjoining property by mail directed to the last known addressand the village, town or city, if any, and the county which isthe location of the facility for which the variance is sought.
5. If the variance is deemed to be substantive, thecommission shall hold a public hearing on the variance asprovided in section 260.400. If the variance is deemed to benonsubstantive, a hearing as provided in section 260.400 shall beheld by the commission if requested by the petitioner withinthirty days of the date of notice of the recommendation of thedepartment. If the commission grants the variance without ahearing, the matter shall be passed upon at a public meeting nosooner than thirty days from the date of notice of therecommendation of the department, except that upon petition,filed within thirty days from the date of the recommendation, byany person aggrieved by the granting of the variance, a hearingshall be held and such petitioner shall become a party to theproceeding. In any hearing under this section the burden ofproof shall be on the person petitioning for a variance.
6. The commission may require the filing of a bond as acondition for the issuance of a variance in an amount determinedby the commission to be sufficient to insure compliance with theterms and conditions of the variance. The bond shall be signedby the applicant as principal and by a corporate surety licensedto do business in the state of Missouri and approved by thecommission. The commission may require that the bond shallremain in effect until the terms and conditions of the varianceare met and the provisions of sections 260.350 to 260.430 andrules and regulations promulgated hereunder are complied with.
7. Upon failure to comply with the terms and conditions ofany bond or of any variance as specified by the commission, thevariance may be revoked or modified or the bond may be revoked,or both, by the commission after a hearing held upon not lessthan thirty days written notice. The notice shall be served uponall persons who will be subjected to greater restrictions if thevariance is revoked or modified or who have filed with thedepartment a written request for notification.
8. Any decision of the commission made pursuant to a hearingheld under this section is subject to judicial review as providedin section 260.415.
(L. 1977 H.B. 318 § 12, A.L. 1980 2d Ex. Sess. H.B. 5, et al.)Effective 10-31-80