Section R392-304-23 - Variances(1) A person may request a variance when a technology, process, procedure, or other variation otherwise not allowed by this rule would provide alternative design, construction, or operational conditions that maintain protection of the health and safety of the public and the environment in a manner that is at least equivalent to the current requirements.(2) Any request for a variance shall follow the process outlined in this section.(3) The requester shall provide data showing that any alternative technology, process, or procedure will be at least as protective of the health and safety of the public and the environment as the current requirements. Each variance request shall be submitted to the department and shall include at least the following: (a) name of the business for which the variance is being requested;(b) designated point of contact and contact information of the business for which the variance is being requested;(c) location of the facility or establishment for which the variance is being requested;(d) citation of each rule section or subsection to which the variance is being requested;(e) a statement as to why the applicant cannot comply with the rule section or subsection to which the variance is being requested;(f) the nature and duration of the variance being requested;(g) a statement of how the intent of the rule will be met and the reasons why the health and safety of the public and the environment would not be endangered or jeopardized if the variance was granted;(h) technical justification or a detailed explanation of the variance conditions that provide the protection of the health and safety of the public and the environment for each applicable rule section or subsection;(i) a full description of any policies, procedures, or equipment that the applicant proposes to use to rectify any potential increase in risks to the health and safety of the public and the environment created by granting the variance; and(j) operation and maintenance requirements of the variance condition.(4) Upon receiving a variance request that meets the requirements of Subsections R392-304-23(1) through (3), the department shall:(a) notify the local health officer having jurisdiction that a variance request was received; and(b) present the variance request to the local health officer having jurisdiction and the executive committee.(5) The executive committee may: (a) make an immediate determination based on the information contained in the variance request; or(b) form an ad hoc committee to: (i) evaluate the variance request; and (ii) produce a written report to be presented to the executive committee for consideration.(6) After deliberation of the variance request information or ad hoc committee report, the executive committee shall provide a recommendation to Governance to: (a) reject the variance request with a written justification; or(b) approve the variance request with or without additional provisions.(7) Governance may recommend to the executive director to:(a) reject the variance request without further consideration with a written justification; or(b) approve the variance request with provisions as recommended by the executive committee.(8) The executive director may consider a variance after Governance makes a recommendation and when it reasonably appears that:(a) the health and safety of the public and the environment will not be endangered by granting of such a variance;(b) adequate alternative provisions have been made to protect the health and safety of the public and the environment;(c) the variance will result in protection of the health and safety of the public and the environment consistent with the design, construction, or operational standards and intent of current requirements; and(d) the variance does not adversely affect statewide regulation.(9) If the executive director approves the variance request: (a) the department shall provide the requester and each local health officer having jurisdiction with a variance approval letter signed by the executive director that includes a description of any conditions, restrictions, or requirements pertaining to the variance; and(b) the executive director or local health officer shall include the variance as a condition to operate; and(c) the department shall conduct a review of the associated rule to determine whether it should be amended to reflect the conditions of the approved variance.(10) If the executive director denies the variance request, the department shall provide the requester and each local health officer having jurisdiction with a denial letter that includes the reason for the denial.(11) If the conditions upon which a variance was granted change, the operator who obtained the variance shall notify the department and:(a) apply for a new variance; or(b) discontinue operating under the previously approved variance and come into full compliance with the current requirements of this rule.Utah Admin. Code R392-304-23
Adopted by Utah State Bulletin Number 2024-18, effective 9/8/2024