N.M. Code R. § 20.6.2.1210 – Variance Petitions

A. Any person seeking a variance pursuant to Section 74-6-4(H) NMSA 1978, shall do so by filing a written petition with the commission. The petitioner may submit with his petition any relevant documents or material which the petitioner believes would support his petition. Petitions shall:
1. (1) state the petitioner's name and address;
2. (2) state the date of the petition;
3. (3) describe the facility or activity for which the variance is sought;
4. (4) state the address or description of the property upon which the facility is located;
5. (5) describe the water body or watercourse affected by the discharge for which the variance is sought and provide information on uses of water that may be affected;
6. (6) identify the regulation of the commission from which the variance is sought;
7. (7) state in detail the extent to which the petitioner wishes to vary from the regulation;
8. (8) state why the petitioner believes that compliance with the regulation will impose an unreasonable burden upon his activity; and
9. (9) state in detail how any water pollution above standards will be abated; and
10. (10) state the period of time for which the variance is desired including all reasons, data, reports and any other information demonstrating that such time period is justified and reasonable.
B. The variance petition shall be reviewed in accordance with the adjudicatory procedures of 20 NMAC 1.3.
C. The commission may grant the requested variance, in whole or in part, may grant the variance subject to conditions, or may deny the variance. If the variance is granted in whole or in part, or subject to conditions, the commission shall specify the length of time that the variance shall be in place.
D. For variances associated with a discharge permit or abatement plan, the existence and nature of the variance shall be disclosed in all public notices applicable to the discharge permit or abatement plan.
E. For variances granted for a period in excess of five years, the petitioner shall provide to the department for review a variance compliance report at five year intervals to demonstrate that the conditions of the variance are being met, including notification of any changed circumstances or newly-discovered facts that are material to the variance. At such time as the department determines the report is administratively complete, the department shall post the report on its website, and mail or e-mail notice of its availability to those persons on a general and facility-specific list maintained by the department who have requested notice of discharge permit applications, and any person who participated in the variance process. If such conditions are not being met, or there is evidence indicating changed circumstances or newly-discovered facts or conditions that were unknown at the time the variance was initially granted, any person, including the department, may request a hearing before the commission to revoke, modify, or otherwise reconsider the variance within 90 days of the issuance of the notice of availability of the report.
F. An order of the commission is final and bars the petitioner from petitioning for the same variance without special permission from the commission. The commission may consider, among other things, the development of new information and techniques to be sufficient justification for a second petition. If the petitioner, or his authorized representative, fails to appear at the public hearing on the variance petition, the commission shall proceed with the hearing on the basis of the petition. A variance may not be extended or renewed unless a new petition is filed and processed in accordance with the procedures established by this section.
[7-19-68, 11-27-70, 9-3-72, 2-20-81, 11-15-96; 20.6.2.1210 NMAC - Rn, 20 NMAC 6.2.I.1210, 1-15-01; A, 12-21-18]