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WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2010
FOURTEENTH DAY
____________
Charleston, W. Va., Tuesday, January 26, 2010
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Father Leon Alexander, St.
Francis de Sales Catholic Church, Morgantown, West Virginia.
Pending the reading of the Journal of Monday, January 25,
2010,
On motion of Senator Bowman, 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 Clerk presented a communication from the Department of
Environmental Protection, submitting its annual Special Reclamation
Fund Advisory Council report, in accordance with chapter twenty-
two, article one, section seventeen of the code of West Virginia.
Which report was received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. House Bill No. 4026--A Bill to repeal §18-23-1, §18-23-2,
§18-23-3, §18-23-4, §18-23-5, §18-23-13, §18-23-14, §18-23-15, §18-
23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West
Virginia, 1931, as amended; to repeal §18B-14-1, §18B-14-2, §18B-
14-3, §18B-14-4, §18B-14-5, §18B-14-5a, §18B-14-6 and §18B-14-7 of
said code; to amend and reenact §5-6-4a of said code; to amend and
reenact §18B-1B-4 of said code; to amend and reenact §18B-2A-4 of
said code; to amend and reenact §18B-2B-6 of said code; to amend
and reenact §18B-4-6 of said code; to amend and reenact §18B-5-4 of
said code; to amend and reenact §18B-10-8 of said code; and to
amend said code by adding thereto a new article, designated §18B-
19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B-
19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12,
§18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16, §18B-19-17 and
§18B-19-18, all relating to higher education capital facilities
generally; repealing certain specific duties of governing boards of
higher education institutions; eliminating condemnation rights of
those boards; eliminating execution of contracts and deeds by those
boards; eliminating certain obligation concerning capital
construction and repair duties; eliminating the authority of
certain state institutions from selling certain properties and
lease back provisions; replacing those duties that are being repealed with similar responsibilities; setting forth certain
specific responsibilities of the Higher Education Policy Commission
and the Council for Community and Technical College Education;
reviewing tuition and fee increases; reviewing and approving of
capital project planning, financing, management and maintenance;
permitting the acquisition, sale, transfer, exchange, lease,
conveyance and condemnation of real property; permitting the
construction and operation of capital facilities; permitting the
collection and use of certain capital fees; establishing in the
State Treasury a capital maintenance fund for each state
institution of higher education; setting forth legislative findings
and intent; defining terms; requiring rulemaking; and providing for
system facilities institution and facilities planning.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. House Bill No. 4040--A Bill to amend and reenact §18-5-45
of the Code of West Virginia, 1931, as amended, relating to
requiring county boards to adopt contingency plans designed to
guarantee one hundred eighty separate days of instruction for
students; authorizing county boards of education to select the
beginning date and ending date of the instructional term of the
school calendar; and making technical corrections.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick,
Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White,
Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4040) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4040) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the sixth order of business, which
agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. House Bill No. 4040, Requiring county boards to adopt
contingency plans designed to guarantee one hundred eighty separate
days of instruction for students.
Passed by the Senate immediately hereinbefore,
The bill still being in the possession of the Senate,
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4040) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence in the changed
effective date.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4138--A Bill to amend and reenact §30-23-
6, of the Code of West Virginia, 1931, as amended, relating to
clarifying the authority of the Medical Imaging and Radiation
Therapy Technology Board of Examiners to work with the Board of
Medicine regarding the regulation of the practice of Radiologist
Assistants.
Referred to the Committee on Government Organization.
The Senate proceeded to the fourth order of business.
Senator Foster, from the Committee on Pensions, submitted the
following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 256, Authorizing Consolidated Public
Retirement Board promulgate legislative rule relating to Teachers
Retirement System.
Senate Bill No. 257, Authorizing Consolidated Public
Retirement Board promulgate legislative rule relating to PERS.
Senate Bill No. 258, Authorizing Consolidated Public
Retirement Board promulgate legislative rule relating to refund,
reinstatement and loan interest factors.
And,
Senate Bill No. 259, Authorizing Consolidated Public
Retirement Board promulgate legislative rule relating to State
Police.
And reports the same back with the recommendation that they
each do pass; but under the original triple committee references
first be referred to the Committee on Finance; and then to the
Committee on the Judiciary.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original triple committee references,
were referred to the Committee on Finance; and then to the
Committee on the Judiciary.
Senator Foster, from the Committee on Pensions, submitted the
following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 331, Clarifying certain PERS and teachers'
disability retirement qualifications.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance.
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 Unger, Fanning, Jenkins and Plymale:
Senate Bill No. 347--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §31-15D-1, §31-15D-2, §31-15D-3, §31-15D-4, §31-15D-5,
§31-15D-6, §31-15D-7, §31-15D-8, §31-15D-9 and §31-15D-10, all
relating to establishment of the West Virginia Transportation
Finance Commission; creating a governing board of the commission;
setting forth appointment, terms, qualifications, compensation and
expenses of board members; setting forth the powers and duties of
the commission; creating the West Virginia Transportation Finance
Commission Fund; setting forth requirements for deposits,
contributions, appropriations, capitalization, disbursements, subaccounts, loans and other financial assistance from the fund;
setting forth requirements for applications for loans and other
financial assistance, approval of qualified projects, finance
agreements, payments and repayments of loans and withholding of
defaulted payments from funds allotted or payable to a defaulting
government unit; setting forth the rights of qualified borrowers
from the fund; requiring annual reports to the Governor, the
Legislature and appropriate federal agencies; requiring the
commission to perform annual audits; requiring the Department of
Transportation to assist the board; making legislative findings;
and defining terms.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senators Kessler, Foster, Barnes, Browning, Deem and
Plymale:
Senate Bill No. 348--A Bill to amend and reenact §15-12-2 and
§15-12-5 of the Code of West Virginia, 1931, as amended; and to
amend and reenact §62-12-3 of said code, all relating to amending
the community notification and disclosure provisions of the Sex
Offender Registration Act; developing a risk assessment scale;
establishing end-of-confinement review committees; determining risk
of reoffending; defining risk levels; community notification for
various risk levels; timing of notification; length of community
notification; communicating the risk level determination; other information communicated to law enforcement; notice of an
offender's release; reassessing the risk level determination;
administrative review of risk level assessment; and offender
request for reassessment of risk level.
Referred to the Committee on the Judiciary.
By Senators Palumbo, Browning, McCabe, Foster, Laird, Wells,
Stollings and D. Facemire:
Senate Bill No. 349--A Bill to amend and reenact §49-2B-3 and
§49-2B-8 of the Code of West Virginia, 1931, as amended, all
relating to requiring licensed or registered child care centers to
have a written plan for evacuation in the event of an emergency;
and making it a point of investigation before a license is
received.
Referred to the Committee on Health and Human Resources; and
then to the Committee on the Judiciary.
By Senators Oliverio, McCabe, Browning, Green, Kessler,
Foster, Stollings, D. Facemire, Prezioso, Plymale and Palumbo:
Senate Bill No. 350--A Bill to amend and reenact §24-2F-3 of
the Code of West Virginia, 1931, as amended, relating to
recategorizing recycled energy as a renewable energy resource for
the purposes of purchasing energy resource credits.
Referred to the Committee on Economic Development; and then to
the Committee on Finance.
By Senators Foster, Jenkins, Prezioso, Yost, Unger, Kessler, Stollings, Plymale and Palumbo:
Senate Bill No. 351--A Bill to amend and reenact §30-29-3 and
§30-29-10 of the Code of West Virginia, 1931, as amended, all
relating to mandatory antiracial profiling training for certain
law-enforcement officers.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Unger, Fanning, Jenkins, Plymale, Foster,
Stollings, D. Facemire and Prezioso:
Senate Bill No. 352--A Bill to amend and reenact §17-4-47 and
§17-4-49 of the Code of West Virginia, 1931, as amended; and to
amend said code by adding thereto a new article, designated
§17-28-1, §17-28-2, §17-28-3, §17-28-4, §17-28-5, §17-28-6,
§17-28-7, §17-28-8 and §17-28-9, all relating to the creation of
the West Virginia Community Empowerment Transportation Act;
authorizing the Commissioner of Highways to establish procedures
relating to the authority and review of transportation projects;
making legislative findings; stating legislative purpose; defining
certain terms and phrases; requiring certain entities seeking state
funds for transportation projects to submit a transportation
project plan; setting forth transportation project plan
requirements; setting forth conditions for approval by the
Commissioner of Highways; authorizing county commissions to impose
user fees for the construction and maintenance of roads and transportation projects; providing credit for municipally imposed
fees; authorizing counties to issue revenue and general obligation
bonds for transportation projects following voter approval;
providing notice, advertisement and election requirements;
coordinating development of transportation projects with other
infrastructure projects; providing for a comprehensive agreement
for a transportation facility between the sponsoring governmental
entity and the Division of Highways; establishing the requirements
for qualifying a transportation facility as a public improvement;
authorizing information sharing; authorizing agreements among
municipal utilities and public service districts to participate in
transportation projects; authorizing setting of rates to include
costs borne by municipal utilities and public service districts in
coordination with transportation projects; providing exemption from
Public Service Commission approval; requiring a bond covering the
division for improvements to highway facilities required as a
result of development; regulating access from properties to and
from state roads; and providing recovery of cost of highway
improvements from commercial and residential developments.
Referred to the Committee on Transportation and
Infrastructure; and then to the Committee on Finance.
Senators Tomblin (Mr. President) and Caruth (By Request of the
Executive) offered the following resolution:
Senate Concurrent Resolution No. 9--Expressing the will of the Legislature to oppose the adoption of a national cap and trade
program for carbon dioxide and greenhouse gas emissions that is
unduly burdensome to the State of West Virginia and to support
measures that encourage investments in technology to address carbon
dioxide and greenhouse gas emissions, and requesting that West
Virginia's congressional delegation resist and oppose efforts to
adopt a national cap and trade program that is detrimental to our
state.
Whereas, The adoption of a national cap and trade program for
carbon dioxide and greenhouse gas emissions would have serious
financial and economic implications for the State of West Virginia;
and
Whereas, House Resolution 2454, the American Clean Energy and
Security Act of 2009, hereinafter referred to as the Act, is
pending approval in Congress; and
Whereas, The Act calls for the establishment of a national cap
and trade program that, if effected, would reduce West Virginia's
gross domestic product by an estimated $750 million by 2020 and by
an estimated $1.75 billion by 2030; and
Whereas, West Virginia would lose up to 10,000 jobs by 2020
and up to 22,000 jobs by 2030 if the proposed cap and trade program
is enacted; and
Whereas, The industries that would be most affected by the
proposed cap and trade program include mining, retail trade and health care; and
Whereas, West Virginia is investing heavily in technology
designed to limit carbon dioxide and greenhouse gas emissions,
including a $100 million investment by American Electric Power in
carbon sequestration and capture technology at its Mountaineer
Plant in Mason County, a state-of-the-art facility that is the
first of its kind in the world; and
Whereas, Globally, more coal is being used than ever, and
demand is projected to rise to even greater levels as more coal-
fired power plants are built in other countries; and
Whereas, Coal will continue to be a primary energy source to
meet these additional demands and therefore the United States
should lead the way in advancing cleaner coal technology; and
Whereas, Additional investments are needed to address carbon
dioxide and greenhouse gas emissions while maintaining the current
energy supply; and
Whereas, The Legislature, with the leadership and support of
the Governor, enacted laws to reduce, within reasonable limits,
carbon dioxide and greenhouse gas emissions in this state by
adopting an alternative and renewable energy portfolio standard and
a regulatory framework for carbon capture and sequestration
projects; and
Whereas, For the sake of those individuals and families who
depend upon the industries that would be affected by a national cap and trade program, the House of Delegates, the Senate, the Governor
and West Virginia's congressional delegation must work together to
ensure that any proposal to reduce carbon dioxide and greenhouse
gas emissions includes reasonable provisions intended to safeguard
the security of this nation and West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature of West Virginia is opposed to the
adoption of a national cap and trade program for carbon dioxide and
greenhouse gas emissions if it creates unnecessary volatility in
the energy market, fails to address the energy and security needs
of this country, threatens the jobs of hardworking men and women,
raises energy costs to an unacceptable amount, fails to provide for
additional investments in technology or is otherwise unduly
burdensome to the State of West Virginia; and, be it
Further Resolved, That the Legislature of West Virginia
supports measures that encourage investments in technology to
address carbon dioxide and greenhouse gas emissions; and, be it
Further Resolved, That the Legislature of West Virginia
requests that West Virginia's congressional delegation resist and
oppose efforts to adopt a national cap and trade program that is
detrimental to our state; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to United States
Senators Robert C. Byrd and John D. Rockefeller IV and Representatives Nick J. Rahall, Alan B. Mollohan and Shelley M.
Capito.
Which, under the rules, lies over one day.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 8, Requesting Joint Committee
on Government and Finance study gubernatorial succession.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on the
Judiciary; and then to the Committee on Rules.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Deem.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Wednesday, January 27, 2010, at 11 a.m.
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