§22-28-13. Variances.

(a) The commission may grant individual variances beyond the limitations prescribed in this chapter whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the commission would impose serious hardship without equal or greater benefits to the public and the emissions occurring, or proposed to occur, do not endanger or tend to endanger human health or safety, human comfort and aesthetic values. In granting or denying a variance, the commission shall file and publish a written opinion stating the facts and reasons leading to its decision.

(b) In granting a variance, the commission may impose such conditions as the policies of this chapter may require. If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of this chapter or of the commission regulations, the commission shall condition the grant of such variance upon the posting of sufficient performance bond or other security to assure the correction of such violation within the time prescribed.

(c) Any variance granted pursuant to the provisions of this section shall be granted for such period of time, not exceeding one year, as shall be specified by the commission at the time of the grant of such variance and upon the condition that the person who receives such variance shall make such periodic progress reports as the commission shall specify. Such variance may be extended from year to year by affirmative action of the commission, but only if satisfactory progress has been shown.

(d) Any person seeking a variance shall do so by filing a petition for variance with the commission, which shall promptly give notice of such petition in a newspaper of general circulation in the county in which the installation or property for which variance sought is located. The director shall promptly investigate such petition, consider the views of persons who might be adversely affected by the grant of a variance and make a recommendation to the commission as to the disposition of the petition. If the commission, in its discretion, concludes that a hearing would be advisable, or if any person files a written objection to the grant of such variance within 21 days, then a hearing shall be held, under the rules prescribed in subsection (b) of Section 22-28-15, and the burden of proof shall be on the petitioner.

(e) If the commission fails to take final action upon a variance request within 90 days after the filing of the petition, the petitioner may deem the request denied under this chapter.

(f) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the commission; however, any person adversely affected by a variance or renewal granted by the commission may obtain judicial review by filing notice of appeal with the register or clerk of the circuit court in the county where the pollution source is located within 20 days from the action of the commission thereon. The case shall be heard by the court under the same rules and with the same requirements as a petition for injunction would be heard. On appeal, the circuit court shall grant said variance unless it finds the operation of the air contamination source in the manner allowed in the variance would amount to a private or public nuisance or unless it finds that the commission acted arbitrarily and capriciously.

(Acts 1971, No. 769, p. 1481, §12.)