2023 Tennessee Code › Title 68 - HEALTH, SAFETY AND ENVIRONMENTAL PROTECTION (§§ 68-1-NEW — 68-221-1319) › ENVIRONMENTAL PROTECTION (§§ 68-201-NEW — 68-221-1319) › Chapter 201 - TENNESSEE AIR QUALITY ACT (§§ 68-201-NEW — 68-201-203) › Part 1 - TENNESSEE AIR QUALITY ACT (§§ 68-201-NEW — 68-201-121) › Section 68-201-118 - Variances

(a)
Any person seeking a variance shall do so by filing a petition for variance with the technical secretary. The technical secretary shall promptly investigate such petition and make recommendation to the board as to its disposition.
(b)
Upon receiving the recommendation of the technical secretary, the board may, if such recommendation is for the granting of a variance, do so without hearing. If the recommendation of the technical secretary is against the granting of a variance, or the board, in its discretion, concludes that a hearing would be advisable, then a hearing shall be held not later than sixty (60) days after the board receives the recommendation of the technical secretary.
(c)
The petitioner shall be given written notice at the earliest practicable time as to the time and place of such hearing.
(d)
Any member of the board, or, with the approval of the governor, any person licensed to practice law in the state of Tennessee and designated by the board to act as hearing examiner, may act as hearing examiner to conduct hearings, administer oaths, subpoena witnesses, and enforce the attendance of witnesses at the hearing. Any member of the board, the hearing examiner or counsel representing the board may examine or cross-examine all witnesses. A complete record of the hearing shall be made for review by the board members.
(e)
All testimony shall be under oath and stenographically recorded. The transcript so recorded shall be made available to the petitioner or any party to the hearing upon payment of the usual charges for such transcript.
(f)
The board in considering the granting of a variance shall give due consideration to the equities of the petitioner and others who may be affected by granting or denial of the petition.
(g)
The board may make the granting of a petition for variance contingent upon such other requirements or restrictions on the petitioner as it may deem appropriate and reasonable.
(h)
Any variance granted shall be for a period not to exceed one (1) year, but may be extended from time to time but in no case for longer than one (1) year at a time upon recommendation of the technical secretary and affirmative action by the board.
(i)
The board shall issue, enter and mail to the petitioner in writing, by certified mail, return receipt requested, within sixty (60) days following the final argument in such hearing or within sixty (60) days following receipt of the recommendation of the technical secretary when no hearing is held, its final order or determination. Such order or determination shall be approved in writing by at least seven (7) members of the board.
(j)
Upon failure of the board to issue, enter and mail to the petitioner a final order or determination within sixty (60) days after the final argument in any such hearing or within sixty (60) days following receipt of the recommendation of the technical secretary when no hearing is held, the petitioner shall be entitled to treat for all purposes such failure to act as a granting of the variance requested.
(k)
The burden of proof in such hearings shall be upon the petitioner.
(l)
(1)
The board may delegate the authority to approve certain types of variances to the commissioner, or the commissioner's designee, pursuant to this subsection (
l
).
(2)
The types of variances that may be delegated for granting by the commissioner upon recommendation by the technical secretary include, but are not limited to, the following:
(A)
The use of open burning, not otherwise permitted by rules or regulations, for the limited purpose of testing a fire control device or system in order to obtain insurance; and
(B)
The use of a variance in the case of financial hardship or other extenuating circumstances under which a vehicle that fails emissions testing required by §
55-4-130
and for which a waiver under §
55-4-128
, or any rules and regulations promulgated pursuant thereto, is not permitted.
(3)
Any petitioner for a variance who objects to a conditional grant of a variance by the commissioner may seek a hearing before the full board as if the variance was denied. Any such hearing shall be subject to the procedural requirements for hearings conducted under subsection (b).
Acts 1984, ch. 788, § 8; T.C.A., § 68-25-118; Acts 2012 , ch. 860, § 1.