N.M. Code R. § 20.9.2.15

Current through Register Vol. 35, No. 16, August 27, 2024

Section 20.9.2.15 - VARIANCES

A. Any person seeking a variance from any requirements of 20.9.2 - 20.9.10 NMAC shall do so in accordance with Permit Procedures - Environment Department, 20.1.4 NMAC.

B. Variance petitions shall be accompanied by proof of public notice as in accordance with the Solid Waste Act and with Permit Procedures - Environment Department, 20.1.4 NMAC. The public notice shall:

(1) contain the name of the owner and operator of the solid waste facility;

(2) address and telephone number at which interested persons may obtain further information;

(3) briefly describe for what the variance is being sought and the proposed alternative;

(4) state the time period for which the variance is sought;

(5) be provided by certified mail to the owners of record, as shown by the most recent property tax schedule and tax exempt entities of record, of all properties:

(a) within one hundred feet of the property on which the facility is located if the facility is in a class A or H class county or a municipality with a population of more than 2,500 persons; or

(b) within one-half mile of the property on which the facility is located in a county or municipality other than those specified in Subparagraph (a) of Paragraph (5) of Subsection B of this section;

(6) be provided by certified mail to all municipalities and counties within a 10 mile radius of the property on which the facility is located;

(7) be published once in a newspaper of general circulation in each county in which the property on which the facility is located; this notice shall appear in either the classified or legal advertisements section of the newspaper and at one other place in the newspaper calculated to give the general public the most effective notice and, and when appropriate shall be printed in both English and Spanish; and

(8) be posted in at least four publicly accessible and conspicuous places, including the existing facility entrance on the property on which the facility is located.

C. The secretary shall deny the variance petition unless the petitioner establishes evidence that:

(1) application of the regulation would result in an arbitrary and unreasonable taking of the applicant's property or would impose an undue economic burden upon any lawful business, occupation or activity; and

(2) granting the variance will not result in any condition injurious to public health, safety or welfare or the environment.

D. No variance shall be granted until the secretary has considered the relative interests of the applicant, other owners of property likely to be affected, and the general public.

E. Variance or renewal of a variance shall be granted for time periods and under conditions consistent with reasons for the variance but within the following limitations:

(1) if the variance is granted on the grounds that there are no practicable means known or available for the adequate prevention of degradation of the environment or the risk to the public health, safety or welfare, it shall continue only until the necessary means for the prevention of the degradation or risk become known and available;

(2) if the variance is granted on the grounds that it is justified to relieve or prevent hardship of a kind other than that provided for in Paragraph (1) of this subsection, it shall not be granted for more than one year.

F. Any variance granted by the secretary shall be reviewed for consistency with existing federal regulations.

N.M. Code R. § 20.9.2.15

20.9.2.15 NMAC - Rp, 20 NMAC 9.1.X.1001, 08/02/07