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Title XVI CONSERVATION, RESOURCES AND DEVELOPMENT

Chapter 260

previous next Effective - 31 Oct 1980, see footnotebottom

  260.405.  Variances granted, when. — 1.  Unless prohibited by any federal hazardous waste management act, the commission may grant individual variances from the requirements of sections 260.350 to 260.430 whenever it is found, upon presentation of adequate proof, that compliance with any provision of sections 260.350 to 260.430 or any standard, rule or regulation, order or license or permit term or condition adopted or issued hereunder 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; except that, no variance shall be granted where the effect of a variance will permit the continuance of a condition which unreasonably poses a present or potential threat to the health of humans or other living organisms; and except, also, that 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 or damage to the property or rights of any person.

  2.  In determining under what conditions and to what extent a variance may be granted, the commission shall weigh the equities involved and the advantages and disadvantages to the applicant and to those affected by the hazardous waste management practices of the applicant.

  3.  Variances shall be granted for a period of time and under such terms and conditions as shall be specified by the commission in its order.  In no event shall the variance be granted for a period of time greater than one year and shall not be renewable unless circumstances can be shown which preclude compliance within the one-year period of the variance and the renewal will not result in an unreasonable risk to the health of humans or the environment.

  4.  (1)  Any person seeking a variance shall file a petition for a variance with the department.  A filing fee of fifty dollars shall be paid to the state of Missouri with each petition.

  (2)  Upon the receipt of a request for a variance deemed substantive by the department, the department shall by mail notify all record owners of property within one mile of the outer boundaries of the site, the county, and the village, town or city within which the facility for which the variance is proposed is located.  If the variance is substantive, as determined by regulation, the department shall notify the public through press release and a notice placed in a newspaper of general circulation serving the area within which the facility is located.  The department shall promptly investigate the petition and make a recommendation to the commission within sixty days after the petition is received as to whether the variance should be granted or denied.  The department shall promptly notify the petitioner of its action and at the same time shall issue public notice by press release or advertisement and shall notify all record owners of adjoining property by mail directed to the last known address and the village, town or city, if any, and the county which is the location of the facility for which the variance is sought.

  5.  If the variance is deemed to be substantive, the commission shall hold a public hearing on the variance as provided in section 260.400.  If the variance is deemed to be nonsubstantive, a hearing as provided in section 260.400 shall be held by the commission if requested by the petitioner within thirty days of the date of notice of the recommendation of the department.  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 department, except that upon petition, filed within thirty days from the date of the recommendation, by 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 under 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 insure 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 commission may require that the bond shall remain in effect until the terms and conditions of the variance are met and the provisions of sections 260.350 to 260.430 and rules and regulations promulgated hereunder are complied with.

  7.  Upon failure to comply with the terms and conditions of any bond or 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.  The 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 department a written request for notification.

  8.  Any decision of the commission made pursuant to a hearing held under this section is subject to judicial review as provided in section 260.415.

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(L. 1977 H.B. 318 § 12, A.L. 1980 2d Ex. Sess. H.B. 5, et al.)

Effective 10-31-80


---- end of effective   31 Oct 1980 ----

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