(1) As provided in this rule, a local board of health, as defined in 50-2-101, MCA, may grant variances from the requirements in this subchapter and in Department Circular DEQ-4, except for requirements established by statute.

(2) The local board of health may grant a variance from a requirement only if it finds that all the following criteria are met:

(a) granting the variance will not:

(i) contaminate any actual or potential drinking water supply;

(ii) cause a public health hazard as a result of access to insects, rodents, or other possible carriers of disease to humans;

(iii) cause a public health hazard by being accessible to persons or animals;

(iv) violate any law or regulation governing water pollution or wastewater treatment and disposal, including the rules contained in this subchapter except for the rule that the variance is requested from;

(v) pollute or contaminate state waters, in violation of 75-5-605, MCA;

(vi) degrade state waters unless authorized pursuant to 75-5-303, MCA; or

(vii) cause a nuisance due to odor, unsightly appearance, or other aesthetic consideration;

(b) compliance with the requirement from which the variance is requested would result in undue hardship to the applicant;

(c) the variance is necessary to address extraordinary conditions that the applicant could not reasonably have prevented;

(d) no alternatives that comply with the requirement are reasonably feasible; and

(e) the variance requested is not more than the minimum needed to address the extraordinary conditions.

(3) The local board of health's decision regarding a variance of a requirement in this subchapter or in Department Circular DEQ-4 may be appealed to the department pursuant to ARM 17.36.924.