(a) Prior to proceeding in any manner that differs from the requirements of this subchapter, the owner or operator of an underground storage tank (UST) system shall secure written agency approval in the form of a variance in accordance with this section.
(b) The agency shall have authority to review and approve requests for variances from the requirements in this subchapter. The agency will approve such requests only if the owner or operator can demonstrate to appropriate agency staff that the proposed alternative procedure and/or equipment will result in an UST system that is no less protective of human health and safety and the environment than the requirement(s) for which the variance is sought.
(c) An owner or operator may submit a request for a variance when one or more of the following situations is applicable:
  (1) when conformance with a requirement in this subchapter is considered not practicable due to the type, design, capacity, material stored, or use of the UST system; or
  (2) when new or alternative products, equipment, methods, and/or procedures appropriate for use with UST systems are not specifically authorized by the provisions of this subchapter.
(d) Any request to the agency for approval of a variance 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) written concurrence by the site or facility owner, if different from the tank owner;
  (2) complete project identification, including:
    (A) facility name, location, and UST facility identification number (if known);
    (B) owner's name, address, and telephone number;
    (C) name, address, and telephone number of owner's/operator's authorized representative; and
    (D) proposed date for implementation of the alternative procedure and/or equipment;
  (3) sufficient documentation to describe or illustrate the alternative procedure and/or equipment, such as:
    (A) plans, drawings, and detail sheets (drawn to scale);
    (B) design and construction specifications; and
    (C) equipment manufacturers' specifications, operating instructions, and warranty information;
  (4) documentation and supporting data which demonstrates, to the satisfaction of agency staff, the reliability and appropriateness of the proposed procedure and/or equipment, such as:
    (A) results of tests or studies conducted by an equipment manufacturer, independent consultant, or nationally recognized association or independent testing laboratory; and
    (B) results of previous experience involving use of the alternative procedure and/or equipment;
  (5) complete explanation of the reasons why the requested proposed procedure and/or equipment are considered preferable to the requirement for which the variance is sought, or why that requirement is considered impracticable; and
  (6) documentation that demonstrates, to the satisfaction of agency staff, that use of the proposed alternative procedure and/or equipment will be no less protective of human health and safety and the environment than adhering to the requirement(s) for which the variance is sought.
(e) If a variance is granted by the agency, the owner or operator shall maintain complete copies of the variance and supporting documentation (including the request for approval), in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).
(f) When a variance is sought, the owner and operator must adhere to the requirement in question until such time as the owner or operator receives a written variance which allows an alternative procedure and/or equipment for that requirement.
(g) Once a person has received a written variance from the agency under this section, that person must adhere to the terms of that variance as written, or to the terms of the requirement for which the variance was sought.

Source Note: The provisions of this §334.43 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442