Section 3746.09. Variances

(A) A person who proposes to enter into or who is participating in the voluntary action program under this chapter and rules adopted under it, in accordance with this section and rules adopted under division (B)(11) of section 3746.04 of the Revised Code, may apply to the director of environmental protection for a variance from applicable standards otherwise established in this chapter and rules adopted under it. The application for a variance shall be prepared by a certified professional. The director shall issue a variance from those applicable standards only if the application makes all of the following demonstrations to the director's satisfaction:

(1) Either or both of the following:

(a) It is technically infeasible to comply with the applicable standards otherwise established at the property named in the application;

(b) The costs of complying with the applicable standards otherwise established at the property substantially exceed the economic benefits.

(2) The proposed alternative standard or set of standards and terms and conditions set forth in the application will result in an improvement of environmental conditions at the property and ensure that public health and safety will be protected.

(3) The establishment of and compliance with the alternative standard or set of standards and terms and conditions are necessary to promote, protect, preserve, or enhance employment opportunities or the reuse of the property named in the application.

A variance issued under this section shall state the specific standard or standards whose terms are being varied and shall set forth the specific alternative standard or set of standards and the terms and conditions imposed on the applicant in their place. A variance issued under this section shall include only standards and terms and conditions proposed by the applicant in the application, except that the director may impose any additional or alternative terms and conditions that the director determines to be necessary to ensure that public health and safety will be protected. If the director finds that compliance with any standard or term or condition proposed by the applicant will not protect public health and safety and that the imposition of additional or alternative terms and conditions will not ensure that public health or safety will be protected, the director shall disapprove the application and shall include in the order of denial the specific findings on which the denial was based.

(B) Variances shall be issued or denied in accordance with this section, rules adopted under division (B)(11) of section 3746.04 of the Revised Code, and Chapter 3745. of the Revised Code. Upon determining that an application for a variance is complete, the director shall schedule a public meeting on the application to be held within ninety days after the director determines that the application is complete in the county in which is located the property to which the application pertains.

(C) Not less than thirty days before the date scheduled for the public meeting on an application for a variance, the director shall publish notice of the public meeting and that the director will receive written comments on the application for a period of forty-five days commencing on the date of the publication of the notice. The notice shall contain all of the following information, at a minimum:

(1) The address of the property to which the application pertains;

(2) A brief summary of the alternative standards and terms and conditions proposed by the applicant;

(3) The date, time, and location of the public meeting.

The notice shall be published in a newspaper of general circulation in the county in which the property is located and, if the property is located in close proximity to the boundary of the county with an adjacent county, as determined by the director, shall be published in a newspaper of general circulation in the adjacent county. Concurrently with the publication of the notice of the public meeting, the director shall mail notice of the application, comment period, and public meeting to the owner of each parcel of land that is adjacent to the affected property and to the legislative authority of the municipal corporation or township, and county, in which the affected property is located. The notices mailed to the adjacent land owners and legislative authorities shall contain the same information as the published notice.

(D) At the public meeting on an application for a variance, the applicant, or a representative of the applicant who is knowledgeable about the affected property and the application, shall present information regarding the application and the basis of the request for the variance and shall respond to questions from the public regarding the affected property and the application. A representative of the environmental protection agency who is familiar with the affected property and the application shall attend the public meeting to hear the public's comments and to respond to questions from the public regarding the affected property and the application. A stenographic record of the proceedings at the public meeting shall be kept and shall be made a part of the administrative record regarding the application.

(E) Within ninety days after conducting the public meeting on an application for a variance under division (D) of this section, the director shall issue a proposed action to the applicant in accordance with section 3745.07 of the Revised Code that indicates the director's intent with regard to the issuance or denial of the application. When considering whether to issue or deny the application or whether to impose terms and conditions of the variance that are in addition or alternative to those proposed by the applicant, the director shall consider comments on the application made by the public at the public meeting and written comments on the application received from the public.

Effective Date: 09-28-1994; 12-30-2004; 06-27-2005