Section 20-737. CONSUMER PRODUCTS – VARIANCE REQUESTS

 

737.1Any person who cannot comply with the requirements set forth in §§ 720 and 722 through 731 because of extraordinary reasons beyond the person's reasonable control may apply in writing to the Department for a variance according to the following requirements:

 

  (a)The variance application shall include:

 

(1)The specific grounds upon which the variance is sought;

 

(2)The proposed date(s) by which compliance with the provisions of §§ 720 and 722 through 731 will be achieved; and

 

(3)A compliance report reasonably detailing the methods by which compliance will be achieved;

 

(b)Upon receipt of a variance application containing the information required in paragraph (a), the Department shall hold a public hearing to determine whether, under what conditions, and to what extent, a variance from the requirements in §§ 720 and 722 through 731 is necessary and will be permitted according to the following requirements:

 

(1)A hearing shall be initiated no later than seventy-five (75) days after receipt of a variance application;

 

(2)Notice of the time and place of the hearing shall:

(A)Be sent to the applicant by certified mail not less than thirty (30) days before the hearing;

 

(B)Be submitted for publication in the District of Columbia Register and sent to every person who requests such notice, not less than thirty (30) days before the hearing; and

 

(C)State that the parties may, but need not be, represented by counsel at the hearing;

(3)At least thirty (30) days before the hearing, the variance application shall be made available to the public for inspection; and

 

(4)Interested members of the public shall be allowed a reasonable opportunity to testify at the hearing and their testimony shall be considered;

 

(c) Information submitted to the Department by a variance applicant may be claimed as confidential, and such information shall be handled in accordance with the District of Columbia confidentiality requirements in 20 DCMR § 106. The Department may consider such confidential information in reaching a decision on a variance application;

 

(d)No variance shall be granted unless all of the following findings are made:

 

(1)Because of reasons beyond the reasonable control of the applicant, requiring compliance with §§ 720 and 722 through 731 would result in extraordinary economic hardship;

 

(2)The public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants which would result from issuing the variance; and

 

(3)The compliance report proposed by the applicant can reasonably be implemented, and will achieve compliance as expeditiously as possible;

 

(e)Any variance order issued by the Department shall specify a final compliance date by which the requirements of §§ 720 and 722 through 731 will be achieved. Any variance order shall contain a condition that specifies increments of progress necessary to ensure timely compliance, and such other conditions that the Department, in consideration of the testimony received at the hearing, finds necessary to carry out the purposes of applicable District of Columbia health and safety laws and regulations;

 

(f)A variance shall cease to be effective upon failure of the party to whom the variance was granted to comply with any term or condition of the variance; and

 

(g)Upon the application of any person, the Department may review, and for good cause, modify or revoke a variance from requirements of §§ 720 and 722 through 731 after holding a public hearing in accordance with the District of Columbia Administrative Procedures Act, D.C. Official Code §§ 2-501, et seq. (2006 Repl.).

 

authority

The Director of the District Department of the Environment (DDOE or Department), pursuant to the authority set forth in sections 5 and 6(b) of the District of Columbia Air Pollution Control Act of 1984, as amended, effective March 15, 1985 (D.C. Law 5-165 (DCAPC); D.C. Official Code §§ 8-101.05 and 8-101.06(b)(2008 Repl.)), section 107(4) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.07(4)(2008 Repl.)), Mayor's Order 98-44, dated April 10, 1998, and Mayor’s Order 2006-61, dated June 14, 2006.

source

inal Rulemaking published at 51 DCR 3879 (April 16, 2004); as amended by Final Rulemaking published at 51 DCR 10781 (November 26, 2004); as amended by Notice of Final Rulemaking published at 58 DCR 11286, 11349 (December 30, 2011).

EditorNote

Section 737 is formerly entitled, "Portable Fuel Containers and Spouts - Exemptions From Performance." The Notice of Final Rulemaking published at 58 DCR 11286 (December 30, 2011) repealed and replaced it with "Consumer Products - Variance Requests."