(a) The executive director may determine on a case-by-case basis the merits of the following types of variances:
  (1) appropriateness of a particular waste classification resulting from application of the classification criteria; and
  (2) other matters requiring special attention by the executive director.
(b) Factors to be considered in determining whether a variance should be granted include, but are not limited to, the risk to human health and the environment that is presented by the requested variance. In addition, such factors as circumstances which were reasonably unforeseeable and beyond the reasonable control of the generator (for the type of variance authorized by subsection (a)(1) of this section); and the results of laboratory analyses and laboratory quality assurance/quality control information (for the type of variance authorized by subsection (a)(2) of this section) shall also be considered. The burden of justifying the need for a variance is on the requestor, and the requestor must submit information sufficient to clearly indicate the issues involved, the reason(s) for the request, and both positive and negative impacts that may result from the granting of the variance. Written documentation on the description of the waste, the date of initial generation, the description of the process that generated the waste, and the analytical data on the waste shall also be submitted with each variance request for a specific waste stream. Prior approval of the variance must be obtained before any change is authorized. If a variance request is denied, the executive director shall provide an explanation of the reasons for the denial in a written response to the requestor.
(c) A person who feels that the executive director has inappropriately denied a request for variance may appeal that decision. The person shall file an appeal directly with the executive director requesting a review of the variance. If the person is not satisfied with the decision of the executive director, he or she may request an evidentiary hearing to determine the appropriateness of the variance, by filing a request for hearing with the commission.

Source Note: The provisions of this §335.514 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135