Section 8.125 - Waiver Procedure(a) Purpose and scope. The Commission considers waiver applications to be properly based on a technical inability to comply with the pipeline safety standards set forth in this chapter, related to the specific configuration, location, operating limitations, or available technology for a particular pipeline. Generally, an application for waiver of a pipeline safety rule is site-specific. Cost is generally not a proper objection to compliance by the operator with the pipeline safety standards set forth in this chapter, and a waiver filed simply to avoid the expense of safety compliance is generally not appropriate. An operator shall request a waiver prior to performing any activities that would fall under the waiver.(b) Filing. Any person may apply for a waiver of a pipeline safety rule or regulation by filing an application for waiver with the Division. Upon the filing of an application for waiver of a pipeline safety rule, the Division shall assign a docket number to the application and shall forward it to the director, and thereafter all documents relating to that application shall include the assigned docket number. An application for a waiver is not an acceptable response to a notice of an alleged violation of a pipeline safety rule. The Division shall not assign a docket number to or consider any application filed in response to a notice of violation of a pipeline safety rule.(c) Form. The application shall be typewritten on paper not to exceed 8 1/2 inches by 11 inches and shall have margins of at least one inch. The contents of the application shall appear on one side of the paper and shall be double or one and one-half spaced, except that footnotes and lengthy quotations may be single spaced. Exhibits attached to an application shall be the same size as the application or folded to that size.(d) Content. The application shall contain the following: (1) the name, business address, and telephone number, and facsimile transmission number and electronic mail address, if available, of the applicant and of the applicant's authorized representative, if any;(2) a description of the particular operation for which the waiver is sought;(3) a statement concerning the regulation from which the waiver is sought and the reason for the exception;(4) a description of the facility at which the operation is conducted, including, if necessary, design and operation specifications, monitoring and control devices, maps, calculations, and test results;(5) a description of the acreage and/or address upon which the facility and/or operation that is the subject of the waiver request is located. The description shall: (A) include a plat drawing;(B) identify the site sufficiently to permit determination of property boundaries;(C) identify environmental surroundings;(D) identify placement of buildings and areas intended for human occupancy that could be endangered by a failure or malfunction of the facility or operation;(E) state the ownership of the real property of the site; and(F) state under what legal authority the applicant, if not the owner of the real property, is permitted occupancy;(6) an identification of any increased risks the particular operation would create if the waiver were granted, and the additional safety measures that are proposed to compensate for those risks;(7) a statement of the reason the particular operation, if the waiver were granted, would not be inconsistent with pipeline safety.(8) an original signature, in ink, by the applicant or the applicant's authorized representative, if any; and(9) a list of the names, addresses, and telephone numbers of all affected persons, as defined in § RSA 8.5 of this title (relating to Definitions).(e) Notice. (1) The applicant shall send a copy of the application and a notice of protest form published by the Commission by certified mail, return receipt requested, to all affected persons on the same date of filing the application with the Division. The notice shall describe the nature of the waiver sought; shall state that affected persons have 30 calendar days from the date of the last publication to file written objections or requests for a hearing with the Division; and shall include the docket number of the application and the mailing address of the Division. The applicant shall file all return receipts with the Division as proof of notice.(2) The applicant shall publish notice of its application for waiver of a pipeline safety rule once a week for two consecutive weeks in the state or local news section of a newspaper of general circulation in the county or counties in which the facility or operation for which the requested waiver is located. The notice shall describe the nature of the waiver sought; shall state that affected persons have 30 calendar days from the date of the last publication to file written objections or requests for a hearing with the Division; and shall include the docket number of the application and the mailing address of the Division. Within ten calendar days of the date of last publication, the applicant shall file with the Division a publisher's affidavit from each newspaper in which notice was published as proof of publication of notice. The affidavit shall state the dates on which the notice was published and shall have attached to it the tear sheets from each edition of the newspaper in which the notice was published.(3) The applicant shall give any other notice of the application which the director may require.(f) Protest or support of waiver application. (1) Affected persons shall have standing to object to, support, or request a hearing on an application.(2) A person who objects to, who supports, or who requests a hearing on the application shall file a written objection, statement of support, or request for a hearing with the Division no later than the 30th calendar day after the date the notice of the application was postmarked or the last date the notice was published in the newspaper in the county in which the person owns or occupies property, whichever is later.(3) The objection, statement of support, or request for a hearing shall: (A) state the name, address, and telephone number of the person filing the objection, statement of support, or request for hearing and of every person on whose behalf the objection, statement of support, or request for a hearing is being filed;(B) include a statement of the facts on which the person filing the protest or statement of support relies to conclude that each person on whose behalf the objection, statement of support, or request for a hearing is being filed is an affected person, as defined in § RSA 8.5 of this title; and(C) include a statement of the nature and basis for the objection to or statement of support for the waiver request.(g) Division review. (1) The director shall complete the review of the application within 60 calendar days after the application is complete. If an application remains incomplete 12 months after the date the application was filed, such application shall expire and the director shall dismiss without prejudice to refiling.(A) If the director does not receive any objections or requests for a hearing from any affected person, the director may recommend in writing that the Commission grant the waiver if granting the waiver is not inconsistent with pipeline safety. The director shall forward the file, along with the written recommendation that the waiver be granted, to the Hearings Division for the preparation of an order.(B) The director shall not recommend that the Commission grant the waiver if the application was filed to correct an existing violation, to avoid the expense of safety compliance, or filed after the applicant already engaged in activities covered by the proposed waiver. The director shall dismiss with prejudice to refiling an application filed in response to a notice of violation of a pipeline safety rule.(C) If the director declines to recommend that the Commission grant the waiver, the director shall notify the applicant in writing of the recommendation and the reason for it, and shall inform the applicant of any specific deficiencies in the application.(2) If the director declines to recommend that the Commission grant the waiver, and if the application was not filed either to correct an existing violation or solely to avoid the expense of safety compliance, the applicant may either: (A) modify the application to correct the deficiencies and resubmit the application; or(B) file a written request for a hearing on the matter within ten calendar days of receiving notice of the assistant director's written decision not to recommend that the Commission grant the application.(h) Hearings and orders. (1) Within three days of receiving either a timely-filed objection or a request for a hearing, the director shall forward the file to the Hearings Division, which shall set and conduct the hearing in accordance with Chapter 1 of this title (relating to Practice and Procedure).(2) After a hearing, the Commission may grant a waiver of a pipeline safety rule based on a finding or findings in the order that the grant of the waiver is not inconsistent with pipeline safety.(i) Notice to United States Department of Transportation. Upon a Commission order granting a waiver of a pipeline safety rule, the director shall give written notice to the Secretary of Transportation pursuant to the provisions of 49 United States Code Annotated, §60118(d). The Commission's grant of a waiver becomes effective in accordance with the provisions of 49 United States Code Annotated, §60118(d).16 Tex. Admin. Code § 8.125
The provisions of this §8.125 adopted to be effective November 24, 2004, 29 TexReg 10733; Amended by Texas Register, Volume 45, Number 01, January 3, 2020, TexReg 125, eff. 1/6/2020