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9VAC25-91-160. Variances to the requirements of Part III (9VAC25-91-130 et seq.) of this chapter.

A. General criteria for granting a variance on a case-by-case basis.

1. The board is required by 62.1-44.34:15.1 of the Code of Virginia to establish the criteria to grant variances of the AST pollution prevention requirements on a case-by-case basis and by regulation for categories of ASTs. Any person affected by this chapter may petition the board to grant a variance of any requirement of Part III (9VAC25-91-130 et seq.) of this chapter.

2. The board will not grant any petition for a variance related to:

a. Definitions;

b. Registration;

c. Classification of aboveground storage tanks; or

d. Oil discharge contingency plans.

3. The board may grant a variance if:

a. The applicant demonstrates to the satisfaction of the board that the alternate design or operation will result in a facility that is equally capable of preventing pollution of state water, land, and storm drains from the discharge of oil from new and existing ASTs. If the variance would extend a deadline, the petitioner shall demonstrate that a good faith effort to comply with the deadline was made;

b. Granting the variance will not result in an unreasonable risk to human health or the environment; and

c. Granting the variance will not result in a conflict with applicable local codes or ordinances.

4. In rendering a decision, the board may:

a. Deny the petition;

b. Grant the variance as requested;

c. Grant a modified variance which:

(1) Specifies additional or modified requirements;

(2) Includes a schedule for:

(a) Periodic review of the modified requirements;

(b) Implementation by the facility of such control measures as the board finds necessary in order that the variance may be granted; or

(c) Compliance, including increments of progress, by the facility with each requirement of the variance; or

(3) Specifies the termination date of the variance.

d. Grant a partial variance that:

(1) Specifies a particular part of the requirement;

(2) Specifies a particular part of the request;

(3) Includes a schedule for:

(a) Periodic review of the partial requirements;

(b) Implementation by the facility of such control measures as the board finds necessary in order that the variance may be granted; or

(4) Specifies the termination date of the variance.

5. An operator must comply with the requirements of this chapter even when a variance request is under consideration by the board. A variance request submitted but disapproved, or submitted but not yet decided, shall not constitute a defense or delay to any enforcement action undertaken by the department.

B. Administrative procedures.

1. General requirements for the submission of a petition by the owner or a duly authorized representative. All petitions submitted to the board shall include:

a. The owner's or duly authorized representative's name and address;

b. A citation of the regulatory requirement to which a variance is requested;

c. An explanation of the need or desire for the proposed action, including the reason the existing requirement is not achievable or is impractical compared to the alternative being proposed;

d. An explanation of the impact to applicable local codes and ordinances;

e. A description of the proposed action;

f. The duration of the variance, if applicable;

g. The potential impact of the variance on human health or the environment and a justification of the proposed action's ability to provide equivalent protection of human health and the environment as would compliance with the regulatory requirements;

h. Enforcement action against or pending against the petitioner;

i. Other information believed by the applicant to be pertinent; and

j. The following statements signed by the owner or a duly authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this petition and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. The petition, if granted, will not be in violation of any local codes or ordinances or pose an unreasonable risk to human health or the environment. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

2. In addition to the general information required of all petitioners under subdivision 1 of this subsection, the petitioner shall submit other information as may be required by the board.

3. All variance petitions and correspondence shall be submitted to the following address:

Mailing Address:

Department of Environmental Quality

Office of Spill Response and Remediation

P.O. Box 1105

Richmond, VA 23218

Street Address:

Department of Environmental Quality

Office of Spill Response and Remediation

1111 East Main Street, Suite 1400

Richmond, VA 23219

C. Petition processing.

1. After receiving a petition that includes the information required in subdivision B 1 of this section, the board will determine whether the information received is sufficient to render the decision. If the information is deemed to be insufficient, the board will specify additional information needed and request that it be furnished.

2. The petitioner may submit the additional information requested, may attempt to show that no reasonable basis exists for the request for additional information, or may withdraw the petition. If the board agrees that no reasonable basis exists for the request for additional information, the board will act in accordance with subdivision 3 b of this subsection. If the board continues to believe that a reasonable basis exists to require the submission of such information, the board will deny the petition.

3. After the petition is deemed complete:

a. The board will review the petition;

b. After evaluating the petition, the board will notify the applicant of the following final decision:

(1) Petition is denied;

(2) Requested variance is granted; or

(3) Modified or partial variance is granted;

c. The board shall send written notification of the variance to the chief administrative officer of the locality in which the facility is located; and

d. If the board grants a variance request, the notice to the petitioner shall provide that the variance may be terminated upon a finding by the board that the petitioner has failed to comply with any variance requirements.

D. Variance by regulation for categories of ASTs.

1. ASTs totally off ground shall not be subject to inventory control or testing for significant variation if:

a. All associated piping is off ground;

b. All associated buried piping is double walled; or

c. All associated piping meets the requirements using a combination of subdivisions 1 a and 1 b of this subsection.

2. ASTs with a capacity of 5,000 gallons or less located within a building or structure designed to fully contain a discharge of oil shall not be subject to inventory control or testing for significant variation.

3. ASTs containing No. 5 or No. 6 fuel oil for consumption on the premises where stored shall not be subject to inventory control or testing for significant variation.

4. ASTs with release prevention barriers (RPBs) and with an established corrosion rate and cathodic protection that protects the entire area of the tank bottom shall not be subject to inventory control or testing for significant variation if:

a. All associated piping is off ground;

b. All associated buried piping is double walled; or

c. All associated piping meets the requirements using a combination of subdivisions 4 a and 4 b of this subsection.

5. ASTs with release prevention barriers (RPBs) and with secondary containment that is 72 hours impermeable shall not be subject to inventory control or testing for significant variation if:

a. All associated piping is off ground;

b. All associated buried piping is double walled; or

c. All associated piping meets the requirements using a combination of subdivisions 5 a and 5 b of this subsection.

6. ASTs that meet the construction and installation standards of STI-F911, F921, or F941, or equivalent standards approved by the board shall not be subject to inventory control or testing for significant variation.

7. For refineries with a continuous leak detection monitoring system and cathodic protection of the AST and piping, a significant variation of inventory shall be considered a loss in excess of 3.0% by weight of the difference between the refinery's input and output.

8. Vaulted tanks meeting UL 2245 or an equivalent standard approved by the board shall not be subject to inventory control or testing for significant variation. The inspections for these tanks required in 9VAC25-91-130 B 5 need to be conducted no more frequently than once every 31 days. The criteria for the visual daily inspection and weekly inspection checklist shall be incorporated into a monthly checklist.

9. An AST used in the production/manufacturing process with full containment that is 72 hours impervious shall not be subject to inventory control or testing for significant variation.

10. An AST of 12,000 gallons or less with full containment that is 72 hours impervious, inside a building and used for the storage of heating oil consumed on the premises shall not be subject to inventory control or testing for significant variation.

11. A double-walled AST shall not be subject to inventory control or testing for significant variation. The inspections required in 9VAC25-91-130 B 5 need be conducted no more frequently than once every 31 days. The criteria for the visual daily inspection and weekly inspection checklist shall be incorporated into a monthly checklist.

Statutory Authority

62.1-44.15, 62.1-44.34:15, 62.1-44.34:15.1 and 62.1-44.34:19.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 14, Issue 18, eff. June 24, 1998; amended, Virginia Register Volume 31, Issue 26, eff. November 1, 2015; Volume 34, Issue 13, eff. February 19, 2018.


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