(a) Upon written request, the commissioner may waive a provision of this chapter if the commissioner determines that the application of the provision would be inconsistent with the fundamental intent and purpose of OSPRA. The commissioner may also waive any requirement of this chapter if the commissioner determines that other existing federal or state statutory or regulatory provisions provide requirements necessary to implement OSPRA.
  (1) Waiver from requirements of this chapter. Any person may request a waiver from a requirement of this chapter by submitting the following information to the commissioner:
    (A) the name, address, and telephone number of the person submitting the requested waiver, and if that person is the agent of the person requesting the waiver, then the agent must also state the name, address, and telephone number of the person for whom the waiver is requested;
    (B) a specific reference to the requirement from which the person is requesting a waiver;
    (C) a detailed statement of the reasons which warrant a waiver;
    (D) an analysis of the waiver's impact on the person's ability to prevent, abate, clean up, and remove an unauthorized discharge of oil.
  (2) Waiver from facility certification requirements. Any person may request a waiver from the facility certification requirement of this chapter by submitting the following information to the commissioner:
    (A) the name, address, and telephone number of the person submitting the requested waiver, and if that person is the agent of the person requesting the waiver, then the agent must also state the name, address, and telephone number of the person for whom the waiver is requested;
    (B) the address and location, including directions from the nearest highway, of the facility subject to the requirements of this chapter;
    (C) a vicinity map;
    (D) a brief description of the business conducted at the facility, including the quantity and types of oil handled;
    (E) a summary of the prevention and response practices utilized at the facility supporting the contention that an unauthorized discharge of oil therefrom will not pose an imminent threat to coastal waters;
    (F) a summary of any other reasons that this chapter should not apply to the facility.
  (3) Receipt of a request for waiver from any facility subject to certification requirements will be deemed to constitute compliance with all timelines for facility certification. Any person whose request for waiver is denied will be given a reasonable time to comply with all the requirements for certification.
  (4) Requests for waivers from facility certification requirements will be evaluated by considering the following factors:
    (A) the physical location of the facility, including:
      (i) proximity to coastal waters;
      (ii) proximity to environmentally sensitive areas;
      (iii) topography;
      (iv) site drainage;
      (v) flood tide impacts;
      (vi) the condition of oil storage areas, including age and condition of oil storage containers, evidence of past spills, leak detection abilities, and secondary or passive containment systems;
    (B) the type and quantity of oil handled;
    (C) the factors listed in this paragraph will be weighted so that subparagraph (A)(vi) of this paragraph will be considered only in the event that a determination cannot be made based solely on the other listed factors.
    (D) The GLO's officers, employees, and agents, under the direction and control of the commissioner, will conduct a field investigation, if necessary, to determine whether to grant the request for waiver.
(b) Where adequate precautions are taken to avoid environmental and property damage and other necessary governmental agencies have consented, the commissioner may allow the discharge of limited amounts of oil into or upon coastal waters or adjacent waters, shorelines, estuaries, tidal flats, beaches, or marshes, as part of a drill, demonstration of response capability or technology, or other study or project to further discharge prevention or response capability.

Source Note: The provisions of this §19.4 adopted to be effective February 21, 1992, 17 TexReg 1109; amended to be effective May 14, 1993, 18 TexReg 2849; amended to be effective March 6, 1995, 20 TexReg 1261; amended to be effective October 30, 2002, 27 TexReg 10036; amended to be effective January 27, 2013, 38 TexReg 295