|(a) Purpose and scope. The Commission considers waiver
applications to be properly based on a technical inability to comply
with the pipeline safety standards set forth in this chapter, related
to the specific configuration, location, operating limitations, or
available technology for a particular pipeline. Generally, an application
for waiver of a pipeline safety rule is site-specific. Cost is generally
not a proper objection to compliance by the operator with the pipeline
safety standards set forth in this chapter, and a waiver filed simply
to avoid the expense of safety compliance is generally not appropriate.
An operator shall request a waiver prior to performing any activities
that would fall under the waiver.
(b) Filing. Any person may apply for a waiver of a
pipeline safety rule or regulation by filing an application for waiver
with the Division. Upon the filing of an application for waiver of
a pipeline safety rule, the Division shall assign a docket number
to the application and shall forward it to the director, and thereafter
all documents relating to that application shall include the assigned
docket number. An application for a waiver is not an acceptable response
to a notice of an alleged violation of a pipeline safety rule. The
Division shall not assign a docket number to or consider any application
filed in response to a notice of violation of a pipeline safety rule.
(c) Form. The application shall be typewritten on paper
not to exceed 8 1/2 inches by 11 inches and shall have margins of
at least one inch. The contents of the application shall appear on
one side of the paper and shall be double or one and one-half spaced,
except that footnotes and lengthy quotations may be single spaced.
Exhibits attached to an application shall be the same size as the
application or folded to that size.
(d) Content. The application shall contain the following:
(1) the name, business address, and telephone number,
and facsimile transmission number and electronic mail address, if
available, of the applicant and of the applicant's authorized representative,
(2) a description of the particular operation for which
the waiver is sought;
(3) a statement concerning the regulation from which
the waiver is sought and the reason for the exception;
(4) a description of the facility at which the operation
is conducted, including, if necessary, design and operation specifications,
monitoring and control devices, maps, calculations, and test results;
(5) a description of the acreage and/or address upon
which the facility and/or operation that is the subject of the waiver
request is located. The description shall:
(A) include a plat drawing;
(B) identify the site sufficiently to permit determination
of property boundaries;
(C) identify environmental surroundings;
(D) identify placement of buildings and areas intended
for human occupancy that could be endangered by a failure or malfunction
of the facility or operation;
(E) state the ownership of the real property of the
(F) state under what legal authority the applicant,
if not the owner of the real property, is permitted occupancy;
(6) an identification of any increased risks the particular
operation would create if the waiver were granted, and the additional
safety measures that are proposed to compensate for those risks;
(7) a statement of the reason the particular operation,
if the waiver were granted, would not be inconsistent with pipeline
(8) an original signature, in ink, by the applicant
or the applicant's authorized representative, if any; and
(9) a list of the names, addresses, and telephone numbers
of all affected persons, as defined in §8.5 of this title (relating
(1) The applicant shall send a copy of the application
and a notice of protest form published by the Commission by certified
mail, return receipt requested, to all affected persons on the same
date of filing the application with the Division. The notice shall
describe the nature of the waiver sought; shall state that affected
persons have 30 calendar days from the date of the last publication
to file written objections or requests for a hearing with the Division;
and shall include the docket number of the application and the mailing
address of the Division. The applicant shall file all return receipts
with the Division as proof of notice.
(2) The applicant shall publish notice of its application
for waiver of a pipeline safety rule once a week for two consecutive
weeks in the state or local news section of a newspaper of general
circulation in the county or counties in which the facility or operation
for which the requested waiver is located. The notice shall describe
the nature of the waiver sought; shall state that affected persons
have 30 calendar days from the date of the last publication to file
written objections or requests for a hearing with the Division; and
shall include the docket number of the application and the mailing
address of the Division. Within ten calendar days of the date of last
publication, the applicant shall file with the Division a publisher's
affidavit from each newspaper in which notice was published as proof
of publication of notice. The affidavit shall state the dates on which
the notice was published and shall have attached to it the tear sheets
from each edition of the newspaper in which the notice was published.
(3) The applicant shall give any other notice of the
application which the director may require.
(f) Protest or support of waiver application.
(1) Affected persons shall have standing to object
to, support, or request a hearing on an application.
(2) A person who objects to, who supports, or who requests
a hearing on the application shall file a written objection, statement
of support, or request for a hearing with the Division no later than
the 30th calendar day after the date the notice of the application
was postmarked or the last date the notice was published in the newspaper
in the county in which the person owns or occupies property, whichever
(3) The objection, statement of support, or request
for a hearing shall:
(A) state the name, address, and telephone number of
the person filing the objection, statement of support, or request
for hearing and of every person on whose behalf the objection, statement
of support, or request for a hearing is being filed;
(B) include a statement of the facts on which the person
filing the protest or statement of support relies to conclude that
each person on whose behalf the objection, statement of support, or
request for a hearing is being filed is an affected person, as defined
in §8.5 of this title; and
(C) include a statement of the nature and basis for
the objection to or statement of support for the waiver request.
(g) Division review.
(1) The director shall complete the review of the application
within 60 calendar days after the application is complete. If an application
remains incomplete 12 months after the date the application was filed,
such application shall expire and the director shall dismiss without
prejudice to refiling.
(A) If the director does not receive any objections
or requests for a hearing from any affected person, the director may
recommend in writing that the Commission grant the waiver if granting
the waiver is not inconsistent with pipeline safety. The director
shall forward the file, along with the written recommendation that
the waiver be granted, to the Hearings Division for the preparation
of an order.
(B) The director shall not recommend that the Commission
grant the waiver if the application was filed to correct an existing
violation, to avoid the expense of safety compliance, or filed after
the applicant already engaged in activities covered by the proposed
waiver. The director shall dismiss with prejudice to refiling an application
filed in response to a notice of violation of a pipeline safety rule.
(C) If the director declines to recommend that the
Commission grant the waiver, the director shall notify the applicant
in writing of the recommendation and the reason for it, and shall
inform the applicant of any specific deficiencies in the application.
(2) If the director declines to recommend that the
Commission grant the waiver, and if the application was not filed
either to correct an existing violation or solely to avoid the expense
of safety compliance, the applicant may either:
(A) modify the application to correct the deficiencies
and resubmit the application; or
(B) file a written request for a hearing on the matter
within ten calendar days of receiving notice of the assistant director's
written decision not to recommend that the Commission grant the application.
(h) Hearings and orders.
(1) Within three days of receiving either a timely-filed
objection or a request for a hearing, the director shall forward the
file to the Hearings Division, which shall set and conduct the hearing
in accordance with Chapter 1 of this title (relating to Practice and
(2) After a hearing, the Commission may grant a waiver
of a pipeline safety rule based on a finding or findings in the order
that the grant of the waiver is not inconsistent with pipeline safety.
(i) Notice to United States Department of Transportation.
Upon a Commission order granting a waiver of a pipeline safety rule,
the director shall give written notice to the Secretary of Transportation
pursuant to the provisions of 49 United States Code Annotated, §60118(d).
The Commission's grant of a waiver becomes effective in accordance
with the provisions of 49 United States Code Annotated, §60118(d).