1. (1) A person may request a variance when a technology, process, procedure, or other variation otherwise not allowed by this rule would provide alternative design, construction, or operational conditions that maintain protection of the health and safety of the public and the environment in a manner that is at least equivalent to the current requirements.

2. (2)(a) A person may not request a variance from the department for any alternative condition that is subject to the discretion of a local health officer under this rule.

   1. (b) Any request for a variance shall follow the process outlined in this section.

3. (3)(a) The requestor shall provide data showing that any alternative technology, process, or procedure will be at least as protective of the health and safety of the public and the environment as the current requirements.

   1. (b) Each variance request shall be submitted to the department and shall include at least:

      1. (i) the name of the business for which the variance is being requested;
      2. (ii) a designated point of contact and contact information of the business for which the variance is being requested;
      3. (iii) the location of the facility or establishment for which the variance is being requested;
      4. (iv) a citation of each rule section or subsection to which the variance is being requested;
      5. (v) a statement as to why the applicant cannot comply with the rule section or subsection to which the variance is being requested;
      6. (vi) the nature and duration of the variance being requested;
      7. (vii) a statement of how the intent of the rule will be met and the reasons why the health and safety of the public and the environment would not be endangered or jeopardized if the variance was granted;
      8. (viii) technical justification or a detailed explanation of the variance conditions that provide the protection of the health and safety of the public and the environment for each applicable rule section or subsection;
      9. (ix) a full description of any policies, procedures, or equipment that the applicant proposes to use to rectify any potential increase in risks to the health and safety of the public and the environment created by granting the variance; and
      10. (x) any operation and maintenance requirements of the variance condition.

4. (4) Upon receiving a variance request that meets the requirements of Subsections (1), (2), and (3), the department shall:

   1. (a) notify the local health officer of each affected jurisdiction that a variance request was received; and
   2. (b) present the variance request to the executive committee.

5. (5) The executive committee may:

   1. (a) make an immediate determination based on the information contained in the variance request; or

   2. (b) form an ad hoc committee to:

      1. (i) evaluate the variance request; and
      2. (ii) produce a written report to be presented to the executive committee for consideration.

6. (6) After deliberation of the variance request information or ad hoc committee report, the executive committee shall provide a recommendation to Governance to:

   1. (a) reject the variance request with a written justification; or
   2. (b) approve the variance request with or without additional provisions.

7. (7) Governance may recommend to the executive director to:

   1. (a) reject the variance request without further consideration with a written justification; or
   2. (b) approve the variance request with provisions as recommended by the executive committee.

8. (8) The executive director may consider a variance after Governance makes a recommendation and when it reasonably appears that:

   1. (a) the health and safety of the public and the environment will not be endangered by granting the variance;
   2. (b) adequate alternative provisions have been made to protect the health and safety of the public and the environment;
   3. (c) the variance will result in protection of the health and safety of the public and the environment consistent with the design, construction, or operational standards and intent of current requirements; and
   4. (d) the variance does not adversely affect statewide regulation or cause increased health disparity.

9. (9) If the variance request is approved by the executive director:

   1. (a) the department shall provide the requestor and each local health officer having jurisdiction with a variance approval letter signed by the executive director that includes:

      1. (i) a description of any condition pertaining to the variance; and
      2. (ii) a notice of any right to appeal the variance request approval decision as outlined in Section 63G-4-302;
   2. (b) the manager shall maintain a copy of the variance approval letter and shall make it available to the local health officer upon request;
   3. (c) the manager shall ensure that the conditions of the variance are followed as described in the variance approval letter; and
   4. (d) the department shall conduct a review of the associated rule to determine whether it should be amended to include any condition of the approved variance.

10. (10) If the variance request is denied by the executive director, the department shall provide the requestor and each local health officer having jurisdiction with a denial letter that includes:

    1. (a) the reason for the denial; and
    2. (b) a notice of any right to appeal the variance request denial decision as outlined in Section 63G-4-302.

11. (11) If the conditions upon which a variance was granted change, the manager shall notify the local health department; and:

    1. (a) apply for a new variance; or
    2. (b) discontinue operating under the previously approved variance and come into full compliance with this rule.

KEY: pools, spas, swimming, water

Date of Last Change: May 26, 2026

Notice of Continuation: October 21, 2021

Authorizing, and Implemented or Interpreted Law: 26B-1-202; 26B-7-113; 26B-7-124; 26B-7-402