16 Tex. Admin. Code § 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 §
8.5 of this title (relating to
Definitions).
(e) Notice.
(1) The applicant shall send a notice by
certified mail, return receipt requested, to all affected persons on the same
date of filing the application with the Division. The applicant shall file all
return receipts with the Division as proof of notice. The notice shall include:
(A) a copy of the application;
(B) a description of the nature of the waiver
sought;
(C) a statement 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;
(D) the case number of the
application;
(E) the mailing
address of the Division; and
(F)
the Division's email address safety@rrc.texas.gov..
(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 case 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 §
8.5 of this title;
(C) include a statement of the nature and
basis for the objection to or statement of support for the waiver request;
and
(D) be filed with the
Commission by email to safety@rrc.texas.gov.
(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).
Notes
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