1. (a) Prior to initiating any activity or procedure which is at variance with or which is not specifically authorized under this subchapter, the owner or operator of an underground storage tank system shall secure commission approval of the variance or alternative procedure in accordance with this section.
2. (b) The executive director shall have authority to review and approve requests for variances and alternative procedures as relate to the provisions of this subchapter. The executive director shall approve such requests only if the owner or operator can reasonably demonstrate that the proposed variance or alternative procedure will result in an underground storage tank system that is no less protective of human health and safety and the environment than a system meeting the requirements of this subchapter.

3. (c) An owner or operator may submit a request for approval of a variance or alternative procedure when one or more of the following situations is applicable:

   1. (1) when conformance with the requirements of this subchapter is considered either not practicable or not reasonable due to the type, design, capacity, material stored, or use of the underground storage tank system (e.g., bulk storage tanks, field-constructed tanks, and airport hydrant fuel distribution systems); or
   2. (2) when new or alternative products, equipment, methods, and/or procedures appropriate for use with underground storage tank systems are not specifically authorized by the provisions of this subchapter.

4. (d) Any request to the executive director for approval of a variance or alternative procedure shall be made in writing, shall be signed and dated by the owner or operator, and shall be accompanied by the following additional documentation:

   1. (1) written concurrence by the site or facility owner, if different from the tank owner;

   2. (2) complete project identification, including:

      1. (A) facility name, location, and UST facility identification number (if known);
      2. (B) owner's name, address, and telephone number;
      3. (C) name, address, and telephone number of owner's authorized representatives (i.e., operator, contractor, or consultant); and
      4. (D) proposed date for implementation of variance or alternative procedure;

   3. (3) sufficient planning materials to describe or illustrate the variance or alternative procedure, such as:

      1. (A) plans, drawings, and detail sheets (drawn to scale);
      2. (B) design and construction specifications; and
      3. (C) equipment manufacturers' specifications, operating instructions, and warranty information;

   4. (4) sufficient documentation and supporting data to justify the reliability of the variance or proposed procedure, such as:

      1. (A) results of tests or studies conducted by an equipment manufacturer, independent consultant, or nationally recognized association or independent testing laboratory; and
      2. (B) results of previous experience involving the use of the alternative procedure or equipment;
   5. (5) complete explanation of the reasons why the requested variance or proposed procedure is considered preferable to the methods or procedures specified in this subchapter, or why the methods or procedures specified in this subchapter are considered unreasonable or impracticable; and
   6. (6) adequate documentation to reasonably demonstrate that the proposed variance or alternative procedure will result in an underground storage tank system that is no less protective of human health and safety and the environment than a system meeting the requirements of this subchapter.
5. (e) Owners and operators shall maintain complete records of any requests for approval of any variances or alternative procedures, and documentation of the executive director's approval of such requests, for the operational life of the UST system, in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).

Source Note:The provisions of this §334.43 adopted to be effective September 29, 1989, 14 TexReg 4714.