(a) The commissioner or the first deputy commissioner may, in his or her discretion, upon written application from the applicant, grant a variance from the requirements of these rules and regulations for a regulated activity and for the alteration or modification of a noncomplying regulated activity.

1. (1) An application for a variance for a regulated activity or for an alteration or modification of a noncomplying regulated activity shall:

   1. (i) identify the specific provision of the rules and regulations from which the variance is sought or identify the nature and extent of the alteration or modification of the noncomplying regulated activity;
   2. (ii) demonstrate that the variance requested is the minimum necessary to afford relief;
   3. (iii) demonstrate that the activity as proposed includes adequate mitigation measures to avoid contamination to or degradation of the water supply which are at least as protective of the water supply as the standards for regulated activities set forth in these rules and regulations; and
   4. (iv) demonstrate that for the proposed use or activity for which the variance is requested, compliance with the identified provision of the rules and regulations would create a substantial hardship due to site conditions or limitations.
2. (2) In granting variances the commissioner or the first deputy commissioner may impose specific conditions, including evidence of financial security, time limitations and limitations on any transfer of the variance granted. In addition, the commissioner or the first deputy commissioner may grant a lesser variance than that applied for.
3. (3) Any proposed substantial alteration or modification of an activity that has been granted a variance under this Subpart shall require the review and approval of the department and shall comply with the provisions of this Subpart.
4. (4) The burden of proof for a variance shall be on the applicant.
5. (5) Except for a variance granted for an alteration or modification of a noncomplying regulated activity, a grant of a variance for a regulated activity shall not be deemed to make such activity a noncomplying regulated activity under these rules and regulations.

(c) Failure to comply with any condition of a variance for a regulated activity, or for a variance for an alteration or modification of a noncomplying regulated activity shall be a violation of these rules and regulations. The department shall review the terms and conditions of each variance granted at least once every five years to determine whether the terms and conditions of the variance have been complied with.

1. (1) The department may grant a variance from the prohibition of locating a new wastewater treatment plant or expanding an existing wastewater treatment plant in a coliform restricted basin, or in a phosphorus restricted basin, where the department determines that conditions are resulting in the release or discharge of inadequately treated sewage into the water supply, and that there is no other feasible method of correcting such release or discharge of inadequately treated sewage except to provide a variance from such prohibition. Provided, however, that in such cases, the additional treatment capacity of the new or expanded wastewater treatment plant may only be of a size sufficient to service the area identified as the source of contamination and any immediate area of concern as limited or delineated by the department.
2. (2) A request for a variance from the prohibition of expanding an existing wastewater treatment plant located in a phosphorus restricted basin which does not meet the criteria set forth in paragraph (1) of this subdivision may be granted only if the applicant demonstrates that subsurface discharge is impossible and that every one kilogram of projected increase in the phosphorus load resulting from the expansion of the existing wastewater treatment plant and accompanying non-point source runoff, is offset by two kilograms of reductions in phosphorus loading within such basin provided by enhanced treatment, basin-wide phosphorus trading, and/or a watershed protection plan developed pursuant to Subpart 128-8 of this Part.

(d) Variances within coliform and phosphorus restricted basins.