(a) A utility may file a petition of appeal to contest:
  (1) a supplemental accommodation requirement prescribed under §21.33 of this subchapter (relating to Applicability);
  (2) the application of a design, construction, or maintenance requirement under §21.37 (relating to Design), §21.38 (relating to Construction and Maintenance), §21.40 (relating to Underground Utilities), and §21.41 (relating to Overhead Electric and Communication Lines) of this subchapter;
  (3) the denial of the utility's request for an exception under §21.35 of this subchapter (relating to Exceptions); or
  (4) the denial of the utility's request under this subchapter for either the installation of a new utility facility or the adjustment or relocation of an existing utility facility.
(b) The petition must be filed with:
  (1) the director of the Right of Way Division, if the utility facility that is the subject of the appeal occupies or is proposed to occupy the right of way under a utility joint use agreement; or
  (2) the director of the Maintenance Division, if the utility facility that is the subject of the appeal occupies or is proposed to occupy the right of way under a use and occupancy agreement other than a utility joint use agreement.
(c) The petition must:
  (1) be in writing;
  (2) completely and succinctly state the grounds for appeal and its factual basis; and
  (3) include sufficient factual documentation, such as drawings, surveys, or photographs, to establish the merits of the appeal.
(d) The utility has the burden of demonstrating that the department incorrectly applied its utility accommodation requirements to the applicable facts.
(e) The director of the division to which a petition that satisfies the requirements of this section is submitted will issue, within 45 days after the date of receipt of the petition, a written decision approving or disapproving the appeal and, on issuance, immediately send the decision to the utility. If a written decision is not issued within the 45-day period, the appeal is considered to be disapproved and the decision of disapproval is considered to be issued on the 46th day after the date of receipt of the petition.
(f) To appeal a decision issued under subsection (e) of this section, the utility must submit a written petition of appeal to the executive director within 30 days after the date that the division director's decision is issued. The petition must satisfy the requirements of subsection (c) of this section. The executive director will issue, within 30 days after the date of receipt of the petition, a written decision approving or disapproving the appeal.
(g) To appeal a decision of the executive director issued under subsection (f) of this section, the utility must submit to the executive director its written petition of appeal to a board of variance, before the 31st day after the date that the executive director's decision under subsection (f) of this section is received. On receipt of the petition, the procedure set out in this subsection applies.
  (1) The executive director will appoint a board of variance composed of at least three persons, each of whom is not below the level of department division director, office director, or district engineer and was not involved in a decision to deny the utility's request under subsections (a), (e), or (f) of this section. A majority of the members of the board constitutes a quorum.
  (2) The board of variance will meet and consider the appeal. Before the 10th day preceding the date of the meeting, the board will give the utility notice of the time and place of the meeting and afford the utility an opportunity to attend and present evidence regarding the appeal.
  (3) Before the 11th day after the date of the meeting, the board of variance will issue a final written decision approving or disapproving the appeal.

Source Note: The provisions of this §21.42 adopted to be effective December 10, 2009, 34 TexReg 8795