Senate Journal

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-SECOND LEGISLATURE

REGULAR SESSION, 2015

SIXTH DAY

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Charleston, W. Va., Monday, January19, 2015

            The Senate met at 11 a.m.

(Senator Cole, Mr. President, in the Chair.)

            Prayer was offered by Rabbi Victor Urecki, B’Nai Jacob Synagogue, Charleston, West Virginia .

            The Senate was then led in recitation of the Pledge of Allegiance by the Honorable Mike Hall, a senator from the fourth district.

            Pending the reading of the Journal of Friday, January 16, 2015,

            On motion of Senator Romano, the Journal was approved and the further reading thereof dispensed with.

            The Senate proceeded to the second order of business and the introduction of guests.

            The Senate then proceeded to the third order of business.

Executive Communications

            The following communication from His Excellency, the Governor, was reported by the Clerk:

STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

January 16, 2015

The Honorable Natalie E. Tennant

Secretary of State

State Capitol

Charleston, West Virginia

Dear Secretary Tennant:

            Pursuant to W. Va. Code §3-10-5, I have this day appointed Gregory L. Boso, P.E., 401 Main Street, Summersville, Nicholas County, WV 26651, as a Senator representing the Eleventh Senatorial District to fill the vacancy created by the resignation of the Honorable Clark S. Barnes, from this day through the remainder of the unexpired term of said office.

                                                                        Sincerely,

                                                                          Earl Ray Tomblin,

                                                                            Governor.

cc: The Honorable William P. Cole III

            Gregory L. Boso, of the County of Nicholas, previously qualified by taking the several oaths of office prescribed by law and administered by the Honorable William P. Cole III, Senate President.

            The Senate proceeded to the fourth order of business.

            Senator Mullins, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:

            Your Committee on Energy, Industry and Mining has had under consideration

            Senate Bill No. 1, Repealing Alternative and Renewable Energy Portfolio Standard.

            And reports back a committee substitute for same with the following title:

            Com. Sub. for Senate Bill No. 1 (originating in the Committee on Energy, Industry and Mining )--A Bill to repeal §24-2F-1, §24-2F-2, §24-2F-3, §24-2F-4, §24-2F-5, §24-2F-6, §24-2F-7, §24-2F-9, §24-2F-10, §24-2F-11 and §24-2F-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §24-2F-8 of said code, all relating to the Alternative and Renewable Energy Portfolio Act; allowing customer-generators to transfer accrued net meter credits to that utility’s nonprofit that provides relief to customers in need of financial assistance; and providing definitions.

            With the recommendation that the committee substitute do pass.

                                                                        Respectfully submitted,

                                                                          Jeff Mullins,

                                                                            Chair.

            At the request of Senator Carmichael, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 1) contained in the preceding report from the Committee on Energy, Industry and Mining was taken up for immediate consideration, read a first time and ordered to second reading.

            The Senate proceeded to the sixth order of business.

            On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:

            By Senators Trump, Blair, Williams, Facemire, D. Hall and Leonhardt:

            Senate Bill No. 252--A Bill to amend and reenact §18-9D-2, §18-9D-3, §18-9D-4c and §18-9D-16 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18-9D-22, all relating to making the West Virginia Schools for the Deaf and Blind eligible to participate in any and all funding administered or distributed by the West Virginia School Building Authority.

            Referred to the Committee on Education; and then to the Committee on Finance.

            By Senators Trump, Blair, D. Hall, Stollings, Laird, Kirkendoll, Snyder, Plymale and Leonhardt:

            Senate Bill No. 253--A Bill to amend and reenact chapter forty-nine of the Code of West Virginia, 1931, as amended, all relating to revising, rearranging, consolidating and recodifying the laws of the State of West Virginia relating to child welfare; and removing outdated language to comply with court rulings concerning child welfare.

            Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.

            By Senators Cole (Mr. President) and Kessler (By Request of the Executive):

            Senate Bill No. 254--A Bill to amend and reenact §5H-1-1 and §5H-1-2 of the Code of West Virginia, 1931, as amended, all relating to the West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act; clarifying process for payment of survivor benefit; defining terms; limiting eligibility for survivor benefit to beneficiaries designated in writing by applicable public safety officer; clarifying circumstances for eligibility of survivor benefit; transferring responsibility for determination of eligibility for survivor benefit from Governor’s Office to Department of Military Affairs and Public Safety, Office of the Secretary; providing for reduction of amount of survivor benefit payable when state pays portion of funeral expenses; setting forth required information for certified request for survivor benefit; requiring fire, emergency medical service and law-enforcement programs to provide notice of survivor benefit and obtain written designations of beneficiaries from eligible public safety officers; requiring Department of Military Affairs and Public Safety, Office of the Secretary, to prepare a form for written designation of beneficiary; providing exclusions for availability of survivor benefit; providing that payments for survivor benefit be made from general revenue; and limiting right of action to recover survivor benefit.

            Referred to the Committee on Pensions; and then to the Committee on Finance.

            By Senators Cole (Mr. President) and Kessler (By Request of the Executive):

            Senate Bill No. 255--A Bill to repeal §15-8-1, §15-8-2, §15-8-3, §15-8-4, §15-8-5, §15-8-6, §15-8-7, §15-8-8, §15-8-9, §15-8-10, §15-8-11 and §15-8-12 of the Code of West Virginia, 1931, as amended; to repeal §16-5J-5 of said code; to repeal §16-5P-7 of said code; to repeal §16-5T-1 of said code; to repeal §16-42-1, §16-42-2, §16-42-3, §16-42-4, §16-42-5 and §16-42-6 of said code; to repeal §18-2J-1, §18-2J-2, §18-2J-3, §18-2J-4, §18-2J-5, §18-2J-6 and §18-2J-7 of said code; to repeal §18B-1C-3 of said code; to repeal §18B-14-11 of said code; to repeal §18B-16-6 of said code; to repeal §20-2B-2a of said code; to repeal §21-3A-10 and §21-3A-18 of said code; to repeal §21-3B-3 of said code; to repeal §22C-5-1, §22C-5-2, §22C-5-3, §22C-5-4, §22C-5-5, §22C-5-6, §22C-5-7 and §22C-5-8 of said code; to repeal §23-1-1a of said code; to repeal §29-12B-4 and §29-12B-5 of said code; to repeal §31-16-1, §31-16-2, §31-16-3 and §31-16-4 of said code; to repeal §33-48-2 and §33-48-3 of said code; to repeal §55-15-1, §55-15-2, §55-15-3, §55-15-4, §55-15-5 and §55-15-6 of said code; and to repeal §62-11E-1, §62-11E-2 and §62-11E-3 of said code, all relating to eliminating unnecessary, inactive or redundant boards, councils, committees, panels, task forces and commissions; terminating the West Virginia Sheriffs’ Bureau; terminating the Clinical Laboratories Quality Assurance Advisory Board; terminating the West Virginia Council on Aging; terminating the Care Home Advisory Board; terminating the Comprehensive Behavioral Health Commission; terminating the Public and Higher Education Unified Educational Technology Strategic Plan, including the Governor’s Advisory Council for Educational Technology; terminating the West Virginia Consortium for Undergraduate Research and Engineering; terminating the Governor’s Commission on Graduate Study in Science, Technology, Engineering and Mathematics; terminating the West Virginia Rural Health Advisory Panel; terminating the Ohio River Management Fund Advisory Board; terminating the Occupational Safety and Health Review Commission; terminating the Occupational Safety and Health Advisory Board; terminating the Environmental Assistance Resource Board; terminating the Commercial Hazardous Waste Management Facility Siting Board; terminating the Workers’ Compensation Board of Managers; terminating the State Medical Malpractice Advisory Panel; terminating the West Virginia Steel Futures Program, including the Steel Advisory Commission; terminating the West Virginia Health Insurance Plan Board; terminating the Alternative Dispute Resolution Commission; and terminating the Sexually Violent Predator Management Task Force.

            Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.

            Senators Beach and Leonhardt offered the following resolution:

            Senate Concurrent Resolution No. 9--Petitioning the United States Congress to call a convention for the purpose of proposing amendments to the Constitution of the United States of America.

            Whereas, The first President of the United States, George Washington, stated, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government.”; and

            Whereas, It was the stated intention of the framers of the Constitution of the United States of America that the Congress of the United States of America should be “dependent on the people alone.” (James Madison, Federalist 52); and

            Whereas, That dependency has evolved from a dependency on the people alone to a dependency on those who spend excessively in elections, through campaigns or third-party groups; and

            Whereas, The United States Supreme Court ruling in Citizens United v. Federal Election Commission, 558 U. S. 310 (2010), removed restrictions on amounts of independent political spending; and

            Whereas, The removal of those restrictions has resulted in the unjust influence of powerful economic forces, which have supplanted the will of the people by undermining our ability to choose our political leadership, write our own laws and determine the fate of our state; and

            Whereas, Article V of the United States Constitution requires the United States Congress to call a convention for proposing amendments upon application of two thirds of the legislatures of the several states for the purpose of proposing amendments to the United States Constitution; and

            Whereas, The State of West Virginia sees the need for a convention to propose amendments in order to address concerns such as those raised by the decision of the United States Supreme Court in Citizens United v. Federal Election Commission (2010), 130 S.Ct. 876, and related cases and events, including those occurring long before or afterward or for a substantially similar purpose, and desires that the convention should be so limited; and

            Whereas, The State of West Virginia desires that the delegates to the convention shall be comprised equally from individuals currently elected to state and local office, or be selected by election in each congressional district for the purpose of serving as delegates, though all individuals elected or appointed to federal office, now or in the past, be prohibited from serving as delegates to the convention, and intends to retain the ability to restrict or expand the power of its delegates within the limits expressed above; and

            Whereas, The State of West Virginia intends that this be a continuing application considered together with applications calling for a convention passed in the 2013-2014 Vermont Legislature as R454 and the 2013-2014 California Legislature as Resolution Chapter 77 and all other passed, pending and future applications, the aforementioned concerns of West Virginia notwithstanding, until that time as two thirds of the several states have applied for a convention and the convention is convened by Congress; therefore, be it

            Resolved by the Legislature of West Virginia:

            That the Legislature hereby petitions the United States Congress to call a convention for the purpose of proposing amendments to the Constitution of the United States of America; and, be it

            Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the President and Vice President of the United States, the Speaker of the United States House of Representatives, the Minority Leader of the United States House of Representatives, the President Pro Tempore of the United States Senate, to each senator and representative from West Virginia in the Congress of the United States, to the Governor of each state and to the presiding officers of each legislative body of each of the several states, requesting the cooperation of the states in issuing an application compelling Congress to call a convention for proposing amendments pursuant to Article V of the U. S. Constitution.

            Which, under the rules, lies over one day.

            The Senate proceeded to the seventh order of business.

            Senate Concurrent Resolution No. 6, Requesting DOH name bridge in Raleigh County "John Thomas Scott II Memorial Bridge".

            On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.

            Senate Concurrent Resolution No. 7, Requesting DOH name bridge in Preston County "Army Air Force SGT Everett Wayne 'Bud' Sell Memorial Bridge".

            On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.

            Senate Concurrent Resolution No. 8, Urging US EPA withdraw and/or rescind proposed definition of "waters of the United States".

            On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Agriculture and Rural Development.

            The Senate proceeded to the tenth order of business.

            Senate Bill No. 3, Relating to real property possessor's liability for trespasser harm.

            On first reading, coming up in regular order, was read a first time and ordered to second reading.

            The Senate proceeded to the twelfth order of business.

            Remarks were made by Senator Kessler.

            Thereafter, at the request of Senator Unger, and by unanimous consent, the remarks by Senator Kessler were ordered extended in the Journal as follows:

            SENATOR KESSLER: Thank you, Mr. President and members of the Senate.

            Just a few days ago we adopted, during our opening session, the Rules of the Senate. I was encouraged, Mr. President, when we adopted those rules and you--the majority party--included a Jobs Impact Statement as part of that. I was pleased as well when the Senior Senator from the Sixteenth added not only the quantity of the jobs but also the wages and quality of the jobs to be so created by any legislation we might be considering. I think, based upon the overriding concern within this body of the members, that sound public policy should be based on accurate information. The better information we have, the better policy we can put out. For that reason, I applaud the adoption of the new rules.

            But as we are moving forward here--and I know Senate Bill No. 1 (Repealing certain Alternative and Renewable Energy Portfolio Standard code sections; allowing net meter credit transfer by electric utility customer-generators to nonprofits) is moving fairly quickly, the Renewable Energy bill. Mr. President, I would suggest to you, as the leader of the body, that it may be a prime opportunity for us to look at the Jobs Impact Statement of that bill. I don’t make that request, Mr. President, for purposes of being an obstructionist, to slow it down--in fact, I support the bill.

            Many of you know I’m from Marshall County, the leading coal-producing county in the state. In fact, we’re doing quite well up there. My brother tells me--he’s the Assessor there--that we’ve got over $150 million worth of new investment. I’m happy to report that just two weeks ago Murray Energy, which took over the Consol operations, announced that it’s putting a $48 million additional investment in its Benwood facility in order to produce even more coal up in that area at their prep plant facility.

            I’m also happy to say when it comes to energy that, while we may not be the leading gas-producing county in the state, Marshall County certainly is blessed with a great deal of reserves both in Marcellus and Utica. And if we are not the leading gas-producing county, I would suggest we’re in the top three. Again, I would suggest to you, Mr. President, we have put over $10 billion worth of investment in the ground in oil and gas, Marcellus and Utica exploration in current or planned investment which is huge for our region, our opportunity and for our entire state.

            I’m also happy to report that over a half billion dollars was announced recently for a new gas-fired power plant in Marshall County which is taking advantage of that Marcellus gas that we have in that region. It’s going to be built, I should add, within miles of what was the former McElroy Coal plant facility, which is the largest, most productive deep mine in the country. Right across from their prep plant and down the road from there, they are going to be building a half billion dollars worth of a gas-fired power plant.

            So, I think it’s important and I am concerned, Mr. President, if we pass this bill that we look at the total job impact. It may create, and I know the objective is to create, more coal jobs; and that’s a good thing. I’m all for that. Trust me, I’m all for that. But on the other side, the flip side of the coin, will it have an adverse effect on the creation of the gas jobs? Will they balance each other? Or will there be creation of both?

            That’s the kind of information I think, Mr. President, when we adopted Senate Rule No. 15b that we envisioned so that we would know if we’re doing good, we’re doing anything or make it have a negative impact. So, I think it would be an excellent opportunity, Mr. President, for you to show leadership and request such a study on that bill. It’s been mischaracterized or characterized--I don’t know--if it’s a cap and trade bill. I don’t know if it is or it isn’t. I’ve heard it called a cap and trade bill. I’ve heard folks from the industry get up at the podium of the meeting--I’m not on that committee, but I’ve heard portions of it over our network--to say that it is not a cap and trade bill.

            What is it? I don’t know. It’s an energy portfolio bill. People say, what does it do? It doesn’t do nothing. The current bill doesn’t do nothing. I ask, “Why?” Because we already meet all the standards when we passed it. The bill doesn’t do anything.

            What does it do going forward? Well, it’s going to set new standards of what we’ve got to do in 2020 and 2025. And you ask the industry and they say, well, we’re already there, too. So it does nothing.

            You know, my undergraduate degree is in economics so I always look at a cost-benefit analysis, Mr. President. So, I look at that. What is the cost? What is the benefit? Is there a plus or a minus or none? But the overriding fact and the truth of the matter is is that we have a bill that does nothing. We’re going to repeal it and it will do nothing. And the simple math of it is zero plus zero still equals zero. And zero minus zero still equals zero.

            But this would give us an opportunity, Mr. President, to show the public, to show the people of this state, it would create more jobs, if it does so, or create lower energy utility costs for the people we represent. It’s been at least suggested this will lower electric rates for folks. Well, goodness gracious, we’re all for that. Everybody in this body is for lower electric rates and more jobs.

            But let’s see if it happens, Mr. President, because I think we need to work and create sound public policy based on measurable improvements. I think we did the right thing by adopting that rule to give you the power to do that. I don’t say it to slow it down. It could be done after we do whatever action we take and then report back and say whether or not what we did, or what we intend to do, actually benefits the people of this state, Mr. President.

            Because as I’ve heard people say, you know, it’s cap and trade; it’s not cap and trade. I’m not sure what it is. But if it’s good for West Virginia, I’m for it. I know you’ll be for it. I know all these people will be for it. But I also think it’s also helpful that we go back and report to our folks six months from now, a year from now, that we can tell the folks that what we did, we’ve done for a reason and it had a positive impact on our state and our constituents.

            Thank you, Mr. President.

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            The Senate proceeded to the thirteenth order of business.

            Senator Cole (Mr. President) announced the replacement of Senator Carmichael on the Committee on Confirmations, the Joint Committee on Enrolled Bills, the Committee on Government Organization, the Committee on Interstate Cooperation and the Committee on Natural Resources with Senator Boso; and the replacement of Senator Nohe on the Committee on Finance with Senator Boso.

            At the request of Senator Leonhardt, the name of Senator Leonhardt was removed as a sponsor of Senate Concurrent Resolution No. 9 (Petitioning Congress call convention for proposal of constitutional amendments).

            Pending announcement of meetings of standing committees of the Senate,

            On motion of Senator Carmichael, the Senate adjourned until tomorrow, Tuesday, January 20, 2015, at 11 a.m.

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