West Virginia Code of State Rules › Agency 150 - Public Service Commission › Title 150 - EXEMPT LEGISLATIVE RULE PUBLIC SERVICE COMMISSION › Series 150-19 - Shippers Access To Lines And Facilities Of Rail Carriers › Section 150-19-2 - Procedures for Shipper Access

Current through Register Vol. XLI, No. 28, July 12, 2024
2.1. Shipper Access by Agreement. If a
				shipper and one (1) or more rail carriers enter into an access agreement, the
				parties shall jointly file with the Commission (a) a notice of such agreement
				that states its duration, identifies the access facilities to be used by the
				shipper, and describes the nature of the shipper's proposed operations using
				the access facilities, and (b) a copy of that part of the access agreement
				describing the operating relationship between the accessing shipper and the
				accessed carrier or carriers. The parties may file the entire agreement but are
				not required to do so.
2.2. Shipper
				Access by Order.
2.2.1. A shipper that has
				requested the use of access facilities located in the State of West Virginia
				but which has been unable to reach an access agreement with the rail carrier or
				carriers owning or controlling those access facilities may file with the
				Commission an application for a shipper access order.
2.2.2. An application for a shipper access
				order shall be supported by sworn affidavits, including the affidavit of the
				accessing shipper's chief executive officer, and shall contain:
(a) a certification by the accessing shipper
				that it has made a good faith effort to negotiate an access agreement with the
				accessed carrier, and a summary of the efforts it has made to enter into such
				an agreement;
(b) A description of
				the accessing shipper's proposed operations and a detailed specification of the
				access facilities it is seeking to use;
(c) a certification that in using the access
				facilities, the accessing carrier will comply with the accessed carrier's
				operating rules, and with all state and federal safety and environmental laws
				and regulations; and
(d) a
				specification of the access charge methodology to be used to compute access
				charges.
2.2.3. The
				accessing shipper shall serve a copy of the application on the accessed
				carrier.
2.2.4. Notice to other
				shippers.
2.2.4.1. Within ten (10) days of
				service of the application the accessed carrier shall provide to each shipper
				on the access facilities designated by the accessing shipper that has used rail
				service over the access facilities within the six (6) preceding months (a) a
				notice that an application has been filed for shipper access, (b) a general
				description of the access facilities being requested, and (c) the name and
				address of the accessing shipper.
2.2.4.2. Each shipper located on the access
				facilities that has used rail service over the access facilities within the six
				(6) preceding months may request the accessing shipper to provide it with a
				copy of the application for a shipper access order. Within ten (10) days of
				receiving the request the accessing shipper shall provide to the requesting
				shipper a copy of its shipper access application.
2.2.5. Shipper Intervention.
2.2.5.1. Shippers located on the access
				facilities which are the subject of a shipper access application may petition
				the Commission for leave to intervene in the shipper access order
				proceedings.
2.2.5.2. For good
				cause shown, the Commission may permit other shippers to intervene and may
				establish substantive and procedural limitations on the intervenor to ensure
				orderly and expeditious processing of the application for a shipper access
				order.
2.2.6. Accessed
				carrier response.
2.2.6.1. Within thirty (30)
				days of service of the application on the accessed carrier, or within such
				additional time as the Commission for good cause allows, the accessed carrier
				shall file with the Commission a response to the application which shall:
a) set forth in detail its exceptions to the
				application;
b) propose specific
				alternative provisions to those portions of the application to which it takes
				exception;
c) set forth a detailed
				statement of the reasons for its exceptions to the application and of the
				reasons for its proposed alternatives;
d) propose an access charge for the use of
				the access facilities sought by the accessing shipper calculated in accordance
				with these regulations using the access charge methodology specified by the
				accessing shipper; and
e) be
				supported by sworn affidavits, including the affidavit of the accessed
				carrier's chief executive officer of chief operating officer.
2.2.6.2. Exceptions shall be
				directed to the operational feasibility of making the access facilities
				available to the accessing shipper to perform the services described in the
				application. Adequacy of service over the access facilities by the accessed
				carrier or the economic impact on the accessed carrier of operations by the
				accessing shipper shall not constitute grounds for exception. If the accessed
				carrier takes exception to all or part of the accessing shipper's proposal, it
				shall propose specific alternatives to the access facilities specified by the
				accessing shipper, that provide at least the same extent and quality of access
				at no greater cost as the facilities requested by the accessing shipper, within
				the limits of operational feasibility.
2.2.7. The accessed carrier shall serve a
				copy of its response and supporting affidavits on the accessing shipper, and
				each intervening shipper, and once the accessing shipper has executed a
				confidentiality agreement, the accessed carrier shall supply the accessing
				shipper copies of all workpapers supporting its exceptions and access charge
				proposals.
2.2.8. The accessing
				shipper and each intervening shipper may file a reply within thirty (30) days
				of service of the accessed carrier's response which shall be supported by sworn
				affidavits, including the affidavit of the accessing or intervening shipper's
				chief executive or operating officer.
2.2.9. The Commission may propound written
				interrogatories to the accessing shipper, the intervening shippers and to the
				accessed carrier regarding any matter material to the issuance of a shipper
				access order under these regulations, which shall be answered under oath and in
				writing by the chief person as directed by the Commission within the time
				established by the Commission.
2.2.10. If the application, the response, the
				reply, the affidavits in support, and the sworn answers to the Commission's
				written questions establish that there exists a disputed issue of fact material
				to the issuance of a shipper access order under these regulations, the
				Commission will permit the accessing shipper, the accessed carrier, the
				Commission's Staff and any intervenor to take depositions upon oral examination
				for the purpose of cross-examining the opposing party's supporting affiants.
				The depositions shall be filed with the Commission, and, together with the
				application, the response, the reply and the answers to the Commission's
				written questions shall constitute the record on which the Commission will base
				its decision unless modified as herein provided.
2.2.11. The Commission may modify the
				procedures for developing the record on which to consider an application for a
				shipper access order, to include, but not limited to, requiring oral
				proceedings.
2.2.12. If the
				Commission finds that the accessing shipper's use of the access facilities will
				not unduly interfere with the accessed carrier's own operations, and if the
				Commission further finds that the accessing shipper has complied with these
				regulations, it will issue a shipper access order directing the accessed
				carrier to permit the accessing shipper to use the access facilities identified
				in the Order under the terms and conditions set forth in the Order.