644.061. Variances, when allowed--petition, fee--variance revoked, when--judicial review, how.
Variances, when allowed--petition, fee--variance revoked,when--judicial review, how.
644.061. 1. Unless prohibited by any federal water pollution controlact, or if an application does not require a permit pursuant to any federalwater pollution control act, the commission may grant individual variancesbeyond the limitations prescribed in sections 644.006 to 644.141 wheneverit is found, upon presentation of adequate proof, that compliance with anyprovisions of sections 644.006 to 644.141 or rule or regulation, standard,requirement, limitation, or order of the commission or director adoptedpursuant thereto will result in an arbitrary and unreasonable taking ofproperty or in the practical closing and elimination of any lawfulbusiness, occupation or activity, in either case, without sufficientcorresponding benefit or advantage to the people; but no variance shall begranted where the effect of a variance will permit the continuance of acondition which may unreasonably cause or contribute to adverse healtheffects upon humans or upon fish or other aquatic life or upon game orother wildlife, and any variance so granted shall not be so construed as torelieve the person who receives the variance from any liability imposed byother law for the commission or maintenance of a nuisance.
2. In determining under what conditions and to what extent a variancemay be granted, the commission shall exercise a wide discretion in weighingthe equities involved and the advantages and disadvantages to the applicantand to those affected by water contaminants emitted by the applicant.
3. Variances shall be granted for such period of time and under suchterms and conditions as shall be specified by the commission in its order.The variance may be extended by affirmative action of the commission. Inno event shall the variance be granted for a period of time greater than isreasonably necessary for complying with sections 644.006 to 644.141 or anystandard, rule or regulation promulgated pursuant to sections 644.006 to644.141.
4. Any person seeking a variance shall file a petition for variancewith the director. There shall be a two hundred fifty dollar filing feepayable to the state of Missouri with each petition for variance. Thedirector shall promptly investigate the application and make arecommendation to the commission within sixty days after the application isreceived as to whether the variance should be granted or denied. Thedirector shall promptly notify the petitioner of his or her action and atthe same time shall send notice to those persons registered with thedirector pursuant to section 644.036 who reside in the county where thewater contaminant or point source is located.
5. If the recommendation of the director is to deny the variance, ahearing as provided in section 644.066 shall be held by the commission ifrequested by the petitioner within thirty days of the date of notice of therecommendation of the director. If the recommendation of the director isfor the granting of the variance, the commission may grant the variancewithout a hearing, or, if not, shall set the matter for a hearing. If thecommission grants the variance without a hearing the matter shall be passedupon at a public meeting no sooner than thirty days from the date of noticeof the recommendation of the director, except that upon petition, filedwithin thirty days from the date of notice, of any person aggrieved by thegranting of the variance, a hearing shall be held and such petitioner shallbecome a party to the proceeding. In any hearing pursuant to this sectionthe burden of proof shall be on the person petitioning for a variance.
6. The commission may require the filing of a bond as a condition forthe issuance of a variance in an amount determined by the commission to besufficient to ensure compliance with the terms and conditions of thevariance. The bond shall be signed by the applicant as principal, and by acorporate surety licensed to do business in the state of Missouri andapproved by the commission. The bond shall remain in effect until theterms and conditions of the variance are met and the provisions of sections644.006 to 644.141 and rules and regulations promulgated pursuant theretoare complied with.
7. Upon failure to comply with the terms and conditions of anyvariance as specified by the commission, the variance may be revoked ormodified or the bond may be revoked, or both, by the commission after ahearing held upon not less than thirty days' written notice. Notice shallbe served upon all persons who will be subjected to greater restrictions ifthe variance is revoked or modified, or who have filed with the director awritten request for notification.
8. Any decision of the commission made pursuant to a hearing heldpursuant to this section is subject to judicial review as provided insection 644.071.
(L. 1972 S.B. 424, A.L. 1973 S.B. 259, S.B. 321, A.L. 1974 S.B. 577, A.L. 2000 S.B. 741)*Transferred 1986; formerly 204.061