Section ENV.05.12 — Variances

(a) The Variance Board or Commission may grant a variance suspending or modifying the enforcement of any emission control regulation or any rule, regulation, or enforcement order issued pursuant to this Article against any person whenever the said Commission shall determine that:

(1) Control techniques are not available or that compliance with applicable emission control regulations from which a variance is sought would create an unreasonable economic burden; and

(2) The granting of such variance would be consistent with, and aid in, implementing the legislative policy as set forth in Section ENV.05.01.

(b) The Commission shall grant a variance suspending or modifying the enforcement of any emission control regulation or any rule, regulation, or enforcement order issued pursuant to this Article against any person whenever the said Commission shall determine that strict compliance with any provision of, or order issued pursuant to, this Article would result in an arbitrary and unreasonable taking of property or in the practical closing of any lawful business or activity and such would be without sufficient corresponding public benefit.

(c) The variance shall be granted, terminated, or modified by the Commission only after a hearing before it held pursuant to the provisions of this Article. A variance may be granted with respect to any existing or proposed facility, process, or activity. Hearings may be requested either by the Commission, the Tribe, or by any person applying for or having received such a variance.

(d) Any variance granted pursuant to the provisions of this article shall be granted for such period of time and under such conditions as shall be specified by the Commission. The failure to meet any condition of the variance without prior written permission of the said Commission shall render such variance null and void. The Commission shall review, at least annually, and variance that has been granted to determine whether the terms and conditions of said variance have been complied with and whether the continuance of the variance is justified.