Effective 28 Aug 2000

644.061. Variances, when allowed — petition, fee — variance revoked, when — judicial review, how. — 1. Unless prohibited by any federal water pollution control act, or if an application does not require a permit pursuant to any federal water pollution control act, the commission may grant individual variances beyond the limitations prescribed in sections 644.006 to 644.141 whenever it is found, upon presentation of adequate proof, that compliance with any provisions of sections 644.006 to 644.141 or rule or regulation, standard, requirement, limitation, or order of the commission or director adopted pursuant thereto will result in an arbitrary and unreasonable taking of property or in the practical closing and elimination of any lawful business, occupation or activity, in either case, without sufficient corresponding benefit or advantage to the people; but no variance shall be granted where the effect of a variance will permit the continuance of a condition which may unreasonably cause or contribute to adverse health effects upon humans or upon fish or other aquatic life or upon game or other wildlife, and any variance so granted shall not be so construed as to relieve the person who receives the variance from any liability imposed by other law for the commission or maintenance of a nuisance.

2. In determining under what conditions and to what extent a variance may be granted, the commission shall exercise a wide discretion in weighing the equities involved and the advantages and disadvantages to the applicant and to those affected by water contaminants emitted by the applicant.

3. Variances shall be granted for such period of time and under such terms and conditions as shall be specified by the commission in its order. The variance may be extended by affirmative action of the commission. In no event shall the variance be granted for a period of time greater than is reasonably necessary for complying with sections 644.006 to 644.141 or any standard, rule or regulation promulgated pursuant to sections 644.006 to 644.141.

4. Any person seeking a variance shall file a petition for variance with the director. There shall be a two hundred fifty dollar filing fee payable to the state of Missouri with each petition for variance. The director shall promptly investigate the application and make a recommendation to the commission within sixty days after the application is received as to whether the variance should be granted or denied. The director shall promptly notify the petitioner of his or her action and at the same time shall send notice to those persons registered with the director pursuant to section 644.036 who reside in the county where the water contaminant or point source is located.

5. If the recommendation of the director is to deny the variance, a hearing as provided in section 644.066 shall be held by the commission if requested by the petitioner within thirty days of the date of notice of the recommendation of the director. If the recommendation of the director is for the granting of the variance, the commission may grant the variance without a hearing, or, if not, shall set the matter for a hearing. If the commission grants the variance without a hearing the matter shall be passed upon at a public meeting no sooner than thirty days from the date of notice of the recommendation of the director, except that upon petition, filed within thirty days from the date of notice, of any person aggrieved by the granting of the variance, a hearing shall be held and such petitioner shall become a party to the proceeding. In any hearing pursuant to this section the 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 for the issuance of a variance in an amount determined by the commission to be sufficient to ensure compliance with the terms and conditions of the variance. The bond shall be signed by the applicant as principal, and by a corporate surety licensed to do business in the state of Missouri and approved by the commission. The bond shall remain in effect until the terms and conditions of the variance are met and the provisions of sections 644.006 to 644.141 and rules and regulations promulgated pursuant thereto are complied with.

7. Upon failure to comply with the terms and conditions of any variance as specified by the commission, the variance may be revoked or modified or the bond may be revoked, or both, by the commission after a hearing held upon not less than thirty days' written notice. Notice shall be served upon all persons who will be subjected to greater restrictions if the variance is revoked or modified, or who have filed with the director a written request for notification.

8. Any decision of the commission made pursuant to a hearing held pursuant to this section is subject to judicial review as provided in section 644.071.

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(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)