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TITLE 150LEGISLATIVE RULES

PUBLIC SERVICE COMMISSION

SERIES 11RULES GOVERNING THE TRANSPORTATION OF

. HAZARDOUS WASTE BY RAIL

§150-11-1. General.

1.1. Scope. -- These rules apply to all railtransporters who transport hazardous waste,universal waste, or used oil within or throughthe State of West Virginia.

1.2. Authority. -- W. Va. Code §22-18­7(b).

1.3. Filingdate. -- October 23,2002.

1.4. Effective date -- December 24, 2002.

1.5. T he definition 0 f terms used in theserules shall have the meaning ascribed to them inthe rules of the Department of EnvironmentalProtection's Division of Waste Managementimplementing the Hazardous WasteManagement Act, 33 CSR 20.

1.6. These rules do not apply to on-sitemovements of hazardous waste by generators orby owners and/or operations of authorizedhazardous waste management facilities.

1.7. Transportation of hazardous wasteshipments which originate, terminate or occurentirely Within the State of West Virginia shallcomply with all of these rules. Transportation ofhazardous waste shipments originating andterminating outside of West Virginia shallcomply with Sections 1.8., 1.10.,2.,3.,4. and 5.of these rules while in West Virginia.

1.8. A transporter of hazardous waste whotransports hazardous waste into the UnitedStates from abroad or who mixes hazardouswastes of different DOT shipping descriptions

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by placing them into' a single container mustalso comply with the standards applicable togenerators of hazardous waste contained inSection 5 of the rules of the West VirginiaDepartment of Environmental Protection (DEP)implementing the Hazardous WasteManagement Act. Title 33 of the LegislativeRules, Division of Environmental Protection,Division ofWaste Management, Series 20.

1.9. These rules are promulgated by thePublic Service Commission of West Virginiaand administered by the Railroad SafetyDivision of the Public Service Commission ofWest Virginia. Questions regarding these rulesmay be addressed to the Railroad SafetyDivision, Public Service Commission of WestVirginia, 201 Brooks Street, Post Office Box812, Charleston, West Virginia 25323;Telephone: (304)340-0474.

1.10. All transporters in the State mustcontact the Department of EnvironmentalProtection and obtain an EPA IdentificationNumber from the State before they accepthazardous waste for transport.

1.11. A transporter who stores manifestedshipments of hazardous waste in containersmeeting the requirements of Section 5 of 33CSR 20 at a transfer facility as defined inSection 2 of 33 CSR 20 for a period of ten daysor less is not subject to regulation underSections 7, 8, 10 and 11 of 33 CSR 20 withrespect to storage of those wastes.

1.12. Transportation of universal wasteshipments shall comply with Section 8 of theserules.

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1.13. Transportation of used oil shallcomply with Section 9 of these rules.1.14.

1.14.a. These regulations do not applyto transportation during an explosives ormunitions emergency response, conducted inaccordance with 40 CFR 264.I(g)(8)(i)(D) or(iv), as incorporated by reference in Section 7,or 40 CFR 265.1(c)(ll)(i)(D) or (iv), asincorporated by reference in Section 8 , and 40CFR 270.I(c)(3)(i)(D) or (iii), as incorporatedby reference in Section 11 of 33 CSR 20.

1.14.b. Section 10 of these rulesidentifies how the requirements of Sections 1through 7 of these rules apply to militarymunitions classified as solid waste under 40CFR 266.202, as incorporated by reference inSection 9 of 33 CSR 20.

§150-11-2. The Manifest System.

2.1.

2.I.a. A rail carrier may not accepthazardous waste from a generator unless it isaccompanied by a manifest signed by thegenerator in accordance with Section 5 of 33CSR20.

2.1.b. Before transporting thehazardous waste, the rail carriers must sign anddate the manifest acknowledging acceptance ofthe hazardous waste from the generator. Thetransporter must return a signed copy to thegenerator before leaving the generator'sproperty.

2.2. When accepting hazardous waste froma non-rail transporter, the rail carrier must:

2.2.a. Sign and date the manifestacknowledging acceptance of the hazardouswaste.

2.2.b. Return a signed copy of themanifest to the non-rail transporter.

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2.2.c. Forward at least three (3) copiesof the manifest to:

1. The next non-rail transporter, ifany; or

2. The designated facility, if theshipment is to be delivered to that facility byrail; or

3. The last rail carrier to handle thewaste in the United States.

2.2.d. Retain one copy of the manifestand rail shipping papers in accordance withSection 3. below.

2.3. Rail carriers must ensure that ashipping paper containing all informationrequired on the manifest including the "EPAAcknowledgment of Consent" for waste beingexported from the U.S. (excluding the EPAidentification number, generator certification,and signatures) accompanies the hazardouswaste at all times.

2.4. When delivering hazardous waste tothe designated facility, a rail carrier must:

2.4.a. Obtain the date of delivery andhandwritten signatures of the owner or operatorof the designated facility on the manifest, or theshipping paper if the manifest has not yet beenreceived by the facility; and

2.4.b. Retain a copy of the manifest orsigned shipping paper in accordance withSection 3. below.

2.5. When delivering hazardous waste to anon-rail transporter a rail carrier must:

2.5.a. Obtain the date of delivery andthe handwritten signature of the non-railtransporter on the manifest; and

2.5.b. Retain a copy of the manifest inaccordance with Section 3. below.

2.6.

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2.6.a. The rail carrier must deliver theentire quantity of hazardous waste which he hasaccepted from a generator or another transporterto:

1. The designated facility listed onthe manifest; or

2. The alternate designated facility,if the hazardous waste cannot be delivered to thedesignated facility because an emergencyprevents delivery; or

3. The next designated transporter.

4. The place outside the UnitedStates designated by the generator.

2.6.b. If the hazardous waste cannot bedelivered in accordance with paragraph 2.6.a.above, the rail carrier must contact the generatorfor further directions and must revise themanifest according to the generator'sinstructions.

2.7. Transporters who transport hazardouswaste out of the United States must:

2.7.a. Indicate on the manifest the datethe hazardous waste left the United States;

2.7.b. Sign the manifest and retain onecopy in accordance with Section 3.1.;

2.7.c. Return a signed copy of themanifest to the generator; and

2.7.d. Provide a copy of the requiredmanifest to the U.S. Customs Office at the pointof departure from the United States.

2.8. A transporter transporting hazardouswaste from a generator who generates greaterthan 100 kilograms but less than 1000 kilogramsofhazardous waste in a calendar month need notcomply with the requirements of 2.1. through2.5. and 2.7. of this Section or those of §150-11­3 provided that:

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2.8.a. The waste is being transportedpursuant to a reclamation agreement as providedin 40 CFR 262.20(e) as incorporated byreference in Section 5 of33 CSR 20.

2.8.b. The transporter records, on a logor shipping paper, the following information foreach shipment:

1. The name, address, and U.S.EPA Identification Number of the generator ofthe waste;

2. The quantity of waste accepted;

3. All DOT-required shippinginformation;

4. The date the waste is accepted.

2.8.c. The transporter carries thisrecord when transporting waste to thereclamation facility.

2.8.d. The transporter retains theserecords for a period of at least three years aftertermination or expiration of the agreement.

§150-11-3. Record keeping.

3.1. For shipments by rail within the UnitedStates, the initial transporter of hazardous wastemust keep a copy of the manifest and shippingpaper containing all information required inSection 2.3. for a period of three years from thedate the hazardous waste was accepted by theinitial transporter.

3.2. For shipments by rail within the UnitedStates, the final rail transporter must keep acopy of the signed manifest, or the shippingpaper if signed by the designated facility in lieuof the manifest, for a period of three years fromthe date the hazardous waste was accepted bythe initial transporter.

3.3. A rail carrier who transports hazardouswaste out of the United States must keep a copyof the manifest indicating that the hazardouswaste left the United States for a period of three

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years from the date the hazardous waste wasaccepted by the initial transporter.

3.4. The periods of record retention referredto above are extended automatically during thecourse of any unresolved enforcement actionregarding the regulated activity or as required bythe Commission.

§150-11-4. Labeling.

4.1. All rail cars transporting hazardouswaste shall be so marked in accordance with theapplicable provisions of the hazardous materialregulations contained in 49 CFR 172.

4.2. A rail transporter shall not acceptpackaged containers of hazardous waste forshipment unless all labeling and packagingrequirements of these regulations have beenmet.

§150-11-5. Discharges.

5.1. In the event of a discharge ofhazardous waste during transportation, the railtransporter must take appropriate immediateaction to protect human health and theenvironment. (e.g. notify local authorities, in thedischarge area). Any discharges shall beprimarily the responsibility of the rail carriers.

5.2. If a discharge of hazardous wasteoccurs during rail transportation, and an official(State or Federal Agency) acting within thescope of his official responsibilities determinesthat the immediate removal of the waste isnecessary to protect human health or theenvironment, that official may authorizeremoval of the waste by transporters. who do nothave EPA identification numbers and withoutthe preparation ofa manifest.

5.3.

5.3.a. At the earliest practical moment,a rail transporter must give notice of a dischargeto:

1. The Railroad Safety Division of

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the Public Service Commission of WestVirginia, 201 Brooks Street, Post Office Box812, Charleston, West Virginia, 25323;Telephone (304)340-0474.

2. The West Virginia Departmentof Environmental Protection, EnvironmentalEnforcement at 1-800-642-3074.

3. The National Response Center,1-800-424-8802 or 1-202-426-2675, but only if:

A. A person is killed; or

B. A person receives injuriesrequiring hospitalization; or

C. Total property damage fromthe discharge exceeds fifty thousand dollars($50,000); or

D. The discharge involvesradioactive waste and/or materials; or

E. The discharge involvesshipment of etiologic agents; or

F. An evacuation of the generalpublic occurs lasting one or more hours; or

G. One or more majortransportation arteries or facilities are closed orshut down for one hour or more; or

H. The operational flightpattern or routine of an aircraft is altered; or

1. Fire breakage, spillage orsuspected radioactive contamination occursinvolving shipment of radioactive material; or

J. Fire breakage, spillage orsuspected contamination occurs involvingshipment of etiologic agents; or

K. There has been a release ofa marine pollutant in a quantity exceeding 450 L(119 gallons) for liquids or 400 Kg (882pounds) for solids; or

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L. The situation, in thejudgment of the carrier, should be reported.(e.g., a continuing danger to life exists at thescene of the incident). ,

5.3.b. The notice shall contain thefollowing information:

1. Name of reporter;

2. Name and address of transporter;

3. Phone number where, reportercan be reached;

4. Date, time and location ofdischarge;

5. Extent of injuries, ifany;

6. Type and quantity of hazardouswaste involved, if available; and

7. Description of incident andwhether a continuing danger to life exists at thescene.

5.4. Within thirty (30) calendar days of thedate of discovery of the discharge of anyquantity of hazardous waste, the rail transportershall file a written report, as specified in 49CFR 171.16 the United States Department ofTransportation.

5.5. A rail transporter shall clean up anyhazardous waste discharge that 'occurs duringtransportation or take such action as may berequired or approved by Federal, State or localofficials sothat the hazardous waste dischargeno longer presents. a hazard to human health orthe environment.

§150-11-6. Revisions to Regulations.

6.1. For the purpose of assuring that:

6.1.a. These regulations are consistentwith the regulations of the United StatesEnvironmental Protection Agency adoptedpursuant to the federal Solid Waste Disposal

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Act, as amended;

6.l.b. The State Hazardous WasteManagement Program is equivalent to andconsistent with the federal Hazardous WasteManagement Program adopted pursuant toSubtitle C of the federal Solid Waste DisposalAct, as amended;

6.l.c. Changes in the regulations of theUnited States Environmental Protection Agencywhich have been adopted by reference in theseregulations are properly placed into effect underState law; and

6.l.d. The requirements of the StateHazardous Waste ,Management Act areotherwise satisfied, the Commission shall revisethese regulations in accordance' with theprocedures set forth in Section 6.2., asnecessary.'

6.2. Whenever there shall be an amendmentof the Federal Solid Waste Disposal Act, asamended, or the adoption or revision of rulesrequired to be promulgated by the Federal SolidWaste Disposal Act, as amended, oramendments to the rules and regulations of otherState agencies promulgated pursuant to theprovisions of the State Hazardous WasteManagement Act, which amendments create aneed for the revision of these regulationsconsistent with the discussion set forth inSection 6.1. of these regulations, theCommission shall within 30 days of theeffective d ate of such amendment initiate suchaction as may be necessary under the provisionsof Chapter 24, Article 1, and Chapter 22, Article18 0 f t he West Virginia Code, to a mend theseregulations at the earliest practicable date.

6.3. Persons desiring to call to the attentionof t he Commission amendments tot he FederalSolid Waste Disposal Act, as amended,regulations promulgated pursuant thereto, oramendments to the rules and regulations of otherState agencies promulgated pursuant to theprovisions of the State Hazardous WasteManagement Act, may do so by filing a noticewith the Commission identifying the amendment

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which has been made to the Federal Solid WasteDisposal Act, as amended, regulationspromulgated pursuant thereto, or rules andregulations of other State agencies pursuant tothe State Hazardous Waste Management Act,and identifying the provisions of theseregulations which such person believes shouldbe amended.

§150-11-7. Variances.

7.1. The Commission may grant a variancefrom one or more of the specific provisions ofthese regulations upon written application fromany person who is subject to these regulations.

7.2. An application for a variance must:identify specific provisions of these regulationsfrom which a variance is sought; anddemonstrate that suspension or modification 0 fthe identified provision will, on the basis ofconditions unique and peculiar to the applicant'sparticular situation, have no significant adverseimpact on public health or the new environment.

7.3. The Commission may not grant anyvariance which would result in requirementswhich are any less strict than the applicablefederal law or regulations.

§150-11-8. Standards for Universal WasteTransporters.

8.1. Applicability. This Section applies topersons engaged in the off-site transportation byrail of universal waste (as defined in 40 CFR273.6, as incorporated by reference in Section13 of33 CSR 20).

8.2. Prohibitions. A universal wastetransporter is:

8.2.a. Prohibited from disposing ofuniversal waste; and

8.2.b. Prohibited from diluting ortreating universal waste, except by respondingto releases as provided in 40 CFR 273.54, asincorporated by reference in Section 13 of 33CSR20.

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8.3. Waste Management.

8.3.a. A universal waste transportermust comply with all applicable U.S.Department of Transportation regulations in 49CFR Part 171 through 180 for transport of anyuniversal waste that meets the definition ofhazardous material in 49 CFR 171.8. Forpurposes of the Department of Transportationregulations, a material is considered a hazardouswaste if it is subject to the Hazardous Waste,Manifest Requirements of the U.S.Environmental Protection Agency specified in40 CFR Part 262. Because universal waste doesnot require a hazardous waste manifest, it is notconsidered a hazardous waste under theDepartment ofTransportation regulations.

8.3.b. Some universal waste materialsare regulated by the Department ofTransportation as hazardous materials becausethey meet the criteria for one or more hazardclasses specified in 49 CFR 173.2. As universalwaste shipments do not require a manifest under40 CFR 262, they may not be described by theDOT proper shipping name "hazardous waste,(1) or (s), n.o.s.," nor may the hazardousmaterial's proper shipping name be modified byadding the word "waste."

8.4. Storage time limits.

8.4.a. A universal waste transportermay only store the universal waste at a universalwaste transfer facility for ten days or less.

8.4.b. If a universal waste transporterstores universal waste for more than ten days,the transporter becomes a universal wastehandler and must comply with the applicablerequirements of 40 CFR Part 273, Subparts Band C, as incorporated by reference inS ection13 of 33 CSR 20 while storing the universalwaste.

8.5. Response to releases.

8.5.a. A universal waste transportermust immediately contain all releases of

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universal wastes and other residues fromuniversal wastes.

Transporters.

8.6. Off-site shipments.

8.7.a. A copy of the EPAAcknowledgment of Consent accompanies theshipment; and

8.7.b. The shipment is delivered to thefacility designated by the person initiating theshipment.

8.6.a. A universal waste transporter isprohibited from transporting the universal wasteto a place other than a universal waste handler, adestination facility, or a foreign destination.

4. This section does not apply totransportation of used oil from household do-it­yourselfers to a regulated used oil generator,collection center, aggregation. point,processor/re-refiner, or burner subject to therequirements of Section 14 of 33 CSR 20.Except as provided in paragraphs 9.1.a.1.through 9.1.a.3., this section does, however,apply to transportation of collected householddo-it-yeurselfer used oil from regulated used oilgenerators, collection centers, aggregationpoints, or other facilities where household do-it­yourselfer used oil is collected.

2. This section does not apply togenerators who transport shipments of used oiltotaling 55 gallons or less from the generator toa used oil collection center as specified in 40CFR 279.24(a), as incorporated by reference atSection 14 of33 CSR 20.

9.La. General. Except as provided inparagraphs 9.La. 1. through 9.1.aA., this sectionapplies to all used oil rail transporters..

9.3. Other applicable provisions. Used oiltransporters who conduct the followingactivities are also subject to applicable

1. This section does not apply toon-site transportation.

3. This section does not apply togenerators who transport shipments of used oiltotaling 55 gallons or less from the generator toa used oil aggregation point owned or operatedby the same generator as specified in 40 CFR279.24(b), as incorporated by reference inSection 14 of33 CSR 20.

9.2. Imports and exports. Transporterswho import used oil from abroad or export usedoil outside ofthe United States are subject to therequirements of this section from the time theused oil enters and until the time it exits theUnited States.

9.1. Applicability.

Standards for Used Oil

8.7. Exports. A universal waste transportertransporting a shipment of universal waste to aforeign destination other than to those OECDcountries specified in40 CFR262.58(a)(1) (inwhich case the transporter is subject to therequirements of 40 CFR Part 262, Subpart H)may not accept a shipment if the transporterknows the shipment does not conform to theEPA Acknowledgment of Consent. In additionthe transporter must ensure that:

8.6.b. If the universal waste beingshipped off-site meets the Department ofTransportation's definition of hazardousmaterials under 49 CFR 171.8, the shipmentmust be properly described on a shipping paperin accordance with the applicable Department ofTransportation regulations under 49 CFR Part172.

8.5.b. A universal waste transportermust determine whether any material resultingfrom the release is hazardous waste, and if so, itis subject to all applicable requirements ofSections 1 through 7 of these regulations and theWest Virginia Department of EnvironmentalProtection Rules implementing the HazardousWaste Management Act (33 CSR 20). If thewaste is determined to be a hazardous waste, thetransporter is subject to Section 5 of33 CSR 20.

§lS0-11-9

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provisions of Section 14 of 33 CSR 20 asindicated in rules 9.3.a. through 9.3.e. below:

9.3.a. Transporters who generate usedoil must also comply with 40 CFR Part 279,Subpart C, as incorporated by reference inSection 14 of33 CSR 20.

9.3.b. Transporters who process or re­refine used oil, except as provided in Section9.4., must also comply with 40 CFR Part 279,Subpart F, as incorporated by reference inSection 14 of33 CSR 20.

9.3.c. Transporters who bum off-specification used oil for energy recovery mustalso comply with 40 CFR Part 279, Subpart G,as incorporated by reference in Section 14 of 33CSR20.

9.3.d. Transporters who directshipments of off-specification used oil fromtheir facility to a used oil burner or first claimthat used oil that is to be burned for energyrecovery meets the used oil fuel specificationsset forth in 40 CFR 279.11, as incorporated byreference in Section 14 of 33 CSR must alsocomply with 40 CFR Part 279, Subpart H, asincorporated by reference in Section 14 of 33CSR20.

9.3.e. Transporters who dispose of usedoil, including the use of used oil as a dustsuppressant must also comply with 40 CFR Part279, Subpart I, as incorporated by reference inSection 14 of33 CSR 20.

9.4. 'Restrictions on transporters who arenot also processors or re-refiners.

9.4.a. Used oil transporters mayconsolidate or aggregate loads of used oil forpurposes of transportation. However, except as

.provided in Rule 9.4.b., used oil transportersmay not process used oil unless they alsocomply with the requirements for processors/re­refiners in 40 CFR Part 279, Subpart F, asincorporated by reference in Section 14 of 33CSR20.

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9.4.b. Transporters may conductincidental processing operations that occur inthe normal course of used oil transportation(e.g., settling and water separation), but that arenot designed to produce (or make moreamenable for production of) used oil derivedproducts unless. they also comply with theprocessor/re-refiner requirements in 40 CFRPart 279, Subpart F,as incorporated byreference in Section 14 of33 CSR 20.

9.4.c. Transporters of used oil that isremoved from oil bearing electrical transformersand turbines and filtered by the transporter priorto being returned to its original use are notsubject to the processor/re-refiner requirementsin 40 CFR Part 279, SubpartF, as incorporatedby reference in Section 14 or 33 CSR 20.

9.5. Notification.

9.S.a. Identification numbers. Used oiltransporters who have not previously compliedwith the notification requirements of Section 4of 33 CSR 20 must comply with thoserequirements and obtain an EPA identificationnumber.

9.S.b. Mechanics of notification. Aused oil transporter who has not received anEPA identification number may obtain one bynotifying the Director of the Division of WasteManagement of their used oil activity bysubmitting either:

1. A completed EPA Form 8700-12(To obtain ordering information for EPA Form8700-12 call RCRAISuperfund Hotline at 1-800­424-9346 or 703-920-9810); or

2. A letter requesting an EPAidentification number. The letter should includethe following information:

A. Transporter company name;

B, Owner of the transportercompany;

C. Mailing address for the

transporter;

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notify local authorities, dike the discharge area).

D. Name and telephone numberfor the transporter point of contact;

E. Type of transport activity(i.e., transport only, transport and transferfacility, transfer facility only);

F. Location of all transferfacilities at which used oil is stored;

G. Name and telephone numberfor a contact at each transfer facility.

9.6. Used oil transportation.

9.6.a. Deliveries. A used oil transportermust deliver all used oil received to:

1. Another used oil transporter,provided that the transporter has obtained anEPA identification number;

2. A used oil processing/re-refinerfacility who has obtained an EPA identificationnumber;

3. An off-specification used oilburner facility who has obtained an EPAidentification number; or

4. An on-specification used oilburner facility.

9.6.b. DOT Requirements. Used oiltransporters must comply with all applicablerequirements under the U.S. Department ofTransportation regulations in 49 CFR Parts 171through 180. Persons transporting used oil thatmeets the definition of a hazardous material in49 CFR 171.8 must comply with all applicableregulations in 49 CFR Parts 171 through 180.

9.6.c. Used-oil discharges.

1. In the event of a discharge ofused oil during transportation, the transportermust take appropriate immediate action toprotect human health and the environment (e.g.,

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2. If a discharge of used oil occursduring transportation and an official (State orlocal government or a Federal Agency) actingwithin the scope of official responsibilitiesdetermines that immediate removal of the usedoil is necessary to protect human health or theenvironment, that official may authorize theremoval of the used oil by transporters who donot have EPA identification numbers.

3. A rail transporter who hasdischarged used oil must:

A: Give notice, if required by49 CFR 171.15 to the National Response Center(800-424-8802 or 202-426-2675); and

B. Report in writing as requiredby 49 CFR 171.16 to the Director, Office ofHazardous Materials Regulations, MaterialsTransportation Bureau, Department ofTransportation, Washington, DC 20590.

4. A transporter must clean up anyused oil discharge that occurs duringtransportation or take such action as may berequired or approved by federal, state, or localofficials so that the used oil discharge no longerpresents a hazard to human health or theenvironment.

9.7. Rebuttable presumption for used oil.

9.7.a. To ensure that used oil isnotahazardous waste under the rebuttablepresumption of 40 CFR 279.1O(b)(1)(ii), asincorporated by reference in Section 14 of 33

. CSR 20, the used oil transporter must determinewhether the total halogen content of used oilbeing transported is above or below 1,000 ppm.

9.7.b. The transporter must make thisdetermination by:

1. Testing the used oil; or

2. Applying knowledge of thehalogen content of the used oil in light of the

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materials or processes used. 9.8. Tracking.

5.

accepted;

4. The date of acceptance; and

3. The quantity of used oil

The quantity of used oil3.

4. The date of delivery;

B. Intermediate railtransporters are not required to sign the recordof acceptance.

A. Except as provided inparagraph 9.8.a.5.B., the signature, dated uponreceipt of the used oil, of a representative of thegenerator, transporter, or processor/re-refinerwho provided the used oil for transport.

1. The name and address of thegenerator, transporter, or processor/re-refinerwho provided the used oil.for transport;

2. The EPA identification number(if applicable) of the generator, transporter, orprocessor/re-refiner who provided the used oilfor transport;

9.8.a. Acceptance. Used oiltransporters must keep a record of each used oilshipment accepted for transport. Records foreach shipment must include:

9.8.b. Deliveries. Used oil transportersmust keep a record of each shipment of used oilthat is delivered to another used oil transporter,or to a used oil burner, processor/re-refiner, ordisposal facility. Records of each delivery mustinclude:

delivered;

2. The EPA identification numberof the receiving facility or transporter;

1. The name and address of thereceiving facility or transporter;

1. The rebuttable presumption doesnot apply to metalworking oils/fluids containingchlorinated paraffins, if they are processed,through a tolling arrangement as described in 40CFR 279.24(c), as Incorporated by reference inSection 14 of 33 CSR 20, to reclaimmetalworking oils/fluids. The presumption doesapply to metalworking oils/fluids if suchoils/fluids are recycled in any other manner, ordisposed.

9.7.c. If the used oil contains greaterthan or equal to 1,000 ppm total halogens, it ispresumed to be a hazardous waste because it hasbeen mixed with halogenated hazardous wastelisted in 40 CFR Part 261, Subpart D, asincorporated by reference in Section 3 of 33CSR 20. The owner or operator may rebut thepresumption by demonstrating that the used oildoes not contain hazardous waste (for example,by using an analytical method from SW-846,Edition ill, to show that the used oil does notcontain significant concentrations ofhalogenated hazardous constituents listed inAppendix Vlll of 49 CFR Part 261, asincorporated by reference in Section 3 of 33CSR 20). EPA Publication SW-846, ThirdEdition, is available from the GovernmentPrinting Office, Superintendent of Documents,P.O. Box 371954, Pittsburgh, PA 15250-7954.(202)512-1800 (document number 955-001­00000-1).

2. The rebuttable presumption doesnot apply to used oils contaminated withchlorofluorocarbons (CFCs) removed fromrefrigeration units if the CFC care destined forreclamation. The rebuttable presumption doesapply to used oils contaminated with CFCs thathave been mixed with used .oil from sourcesother than refrigeration units.

9.7.d. Record retention. Records ofanalyses conducted or information used tocomply with Rules 9.7.a., 9.7.b.,and 9.7.c. mustbe maintained by the transporter for at least 3years.

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5. A. Except as provided inparagraph 9.8.b.5.B, the signature, dated uponreceipt of the used oil, of a representative of thereceiving facility or transporter.

B. Intermediate railtransporters are not required to sign the recordof delivery.

9.8;c. Exports of used oil. Used oiltransporters must maintain the records describedin paragraphs 9.8.b.I. through 9.8.b.4. for eachshipment of used oil exported to any foreigncountry.

9.9.d. Record retention. The recordsdescribed in Rules 9.8.a., 9.8.b., and 9.8.c. mustbe maintained for at least three years.

9.9. Management of residues. Transporterswho generate residues from the storage ortransport of used oil must manage the residuesas specified in 40 CFR 279. lO(e), asincorporated by reference in Section 14 or 33CSR20.

§150-11-10 Standards applicable to thetransportation of solid waste militarymunitions.

10.1. Unless otherwise specified in thissection, all applicable requirements in Sections1 through 7 of these regulations and the WestVirginia Department of EnvironmentalProtection's Rules implementing the HazardousWaste ManagementAct (33 CSR 20) apply towaste military munitions.

10.2. Criteria for hazardous wasteregulation of waste non-chemical militarymunitions in transportation.

10.2.a. Waste military munitions thatare being transported and that. exhibit ahazardous waste characteristic or are listed ashazardous waste under Section 3 of 33 CSR 20,are listed or identified as a hazardous waste (andthus are subject to regulation under Sections 1through 7 of these regulations and West

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Virginia Department of EnvironmentalProtection Rules implementing the HazardousManagement Act (33 CSR 20), unless all thefollowing conditions are met:

1. The waste military munitions arenot chemical agents or chemical munitions;

2. The waste military munitionsmust be transported in accordance with theDepartment of Defense shipping controlsapplicable to the transport of military munitions;

3. The waste military munitionsmust be transported from a military owned oroperated installation to a military owned oroperated treatment, storage, or disposal facility;and

4. The transporter of the wastemust provide oral notice to the Railroad SafetySection of the Public Service Commission ofWest Virginia within 24 hours from the time thetransporter becomes a ware 0 f any loss 0 r theftof the waste military munitions, or any failure tomeet a condition of Rule lO.2.a. that mayendanger health or the environment. In addition,a written submission describing thecircumstances shall be provided within 5 daysfrom the time the transporter becomes aware ofany loss or theft of the waste military munitionsor any failure to meet a condition of Rule 10.2.a.

10.2.b. If any waste military munitionsshipped under Rule 10.2.a. are not received bythe receiving facility within 45 days of the daythe waste was shipped, the owner or operator ofthe receiving facility must report this non­receipt to the Director within 5 days.

10.2.c. T he exemption in Rule 1O.2.a.from regulation as hazardous waste shall applyonly to the transportation of non-chemical wastemilitary munitions. It does not affect theregulatory status of waste military munitions ashazardous wastes with regard to storage,treatment or disposal.

10.2.d. The conditional exemption inRule 10.2.a. applies only so long as all of the

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conditions in Rule 1O.2.a. are met.

10.3. Reinstatement of exemption. If anywaste military munition loses its exemptionunder Rule lO.2.a., an application may be filedwith the Railroad Safety Section of the PublicService Commission of West Virginia forreinstatement of the exemption from hazardouswaste transportation regulation with respect tosuch munition as soon as the munition isreturned to compliance with the conditions ofRule 10.2.a. If the Railroad Safety Section findsthat reinstatement of the exemption isappropriate based on factors such as thetransporter's provision of a satisfactoryexplanation of the circumstances of theviolation, or a demonstration that the violationsare not likely to recur, the Railroad SafetySection may reinstate the exemption under RulelO.2.a. If t he Railroad Safety Section does nottake action on the reinstatement applicationwithin 60 days a fter receipt 0 f t he application,then reinstatement shall be deemed granted,retroactive to the date of the application.However, the Railroad Safety Section mayterminate a conditional exemption reinstated bydefault in the preceding sentence if the RailroadSafety Section finds that reinstatement isinappropriate based on factors such as thetransporter's failure to provide a satisfactoryexplanation of the circumstances of theviolation, or failure to demonstrate that theviolations are not likely to recur. In reinstatingthe exemption under Rule lO.2.a., the RailroadSafety Section may specify additionalconditions as are necessary to ensure anddocument proper transportation to protecthuman health and the environment.

lOA. Amendment to DOD shippingcontrols. The Department of Defense shippingcontrols applicable to the transport of militarymunitions referenced in paragraph 10.2.a.2. areGovernment Bill of Lading (GBL) (GSAStandard Form 1109), requisition tracking formDD Form 1348, the Signature and Talley Record(DD Form 1907), Special Instructions for MotorVehicle Drivers (DD Form 836), and the MotorVehicle Inspection Report (DD Form 626) ineffect on November 8, 1995, except as provided

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in the following sentence. Any amendments tothe Department of Defense shipping controlsshall become effective for purposes of RulelO.2.a. on the date the Department of Defensepublishes notice in the FEDERAL REGISTERthat the shipping controls referenced inparagraph 1O.2.a.2. have been amended.

10.5. Standards applicable to emergency·responses. Explosives and munitionsemergencies involving military munitions orexplosives are subject to Rule 1.B.a. of theseregulations.