COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 322
(By Senators Tomblin, Mr. President, Bailey, McCabe, Caldwell,
Chafin, Fanning, Plymale, Unger and Rowe)
____________
[Originating in the Committee on Finance;
reported March 3, 2004.]
____________
A BILL to amend and reenact §4-10-5 of the code of West Virginia,
1931, as amended; and to amend and reenact §5D-1-2, §5D-1-3,
§5D-1-4, §5D-1-5, §5D-1-5b, §5D-1-6, §5D-1-12, §5D-1-14, §5D-
1-15 and §5D-1-16 of said code, all relating to the public
energy authority; changing the termination of the authority
and authority board to the first day of July, two thousand
eight; reconstituting the authority under the development
office for the sole purpose of construction, maintenance and
operation of flood mitigation dams with hydroelectric power
generation facilities, electric transmission lines integral to
such generation facilities, reservoirs and water impoundments formed by such dams and lands bordering on such reservoirs and
impoundments; establishing legislative purpose and intent;
providing definitions; establishing powers, duties and
responsibilities of the authority; requiring public hearings
before certain actions of the authority; authorizing the
authority to construct, finance, lease, sale, maintain, repair
and otherwise undertake projects; authorizing the sale of
electricity from projects solely in the wholesale market;
exemption from taxation of projects owned by the authority;
acquisition of property by the authority; and providing that
the authority is not a public utility and is not subject to
the jurisdiction of the public service commission.
Be it enacted by the Legislature of West Virginia:
That §4-10-5 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §5D-1-2, §5D-1-3, §5D-1-4,
§5D-1-5, §5D-1-5b, §5D-1-6, §5D-1-12, §5D-1-14, §5D-1-15 and §5D-1-
16 of said code be amended and reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-5. Termination of agencies following preliminary performance
reviews.
The following agencies terminate on the date indicated, but no
agency terminates under this section unless a preliminary
performance review has been conducted upon the agency:
(1) On the first day of July, one thousand nine hundred
ninety-six: Juvenile facilities review panel.
(2) On the first day of July, one thousand nine hundred
ninety-seven: Public employees insurance agency advisory board;
cable television advisory board.
(3) On the first day of July, one thousand nine hundred
ninety-nine: Tree fruit industry self-improvement assessment
program.
(4) On the first day of July, two thousand: Terms of family
law master and family law master system.
(5) On the first day of July, two thousand three: Advisory
council on public health; and governors' office of fiscal risk
analysis and management.
(6) On the first day of July, two thousand four: Meat
inspection program of the department of agriculture; state board of
risk and insurance management; real estate commission; rural health
advisory panel; state fire commission; motorcycle safety awareness
board; motor vehicle dealers advisory board; interstate commission
on uniform state laws; design-build board; center for professional
development board; parks section and parks function of the division
of natural resources; office of water resources of the department
of environmental protection; division of protective services; state
rail authority; care home advisory board; steel advisory commission
and steel futures program; children's health insurance board;
capitol building commission; public defender services; public
employees insurance agency finance board; office of explosives and
blasting; workers' compensation appeal board; records management
and preservation board;
public energy authority and public energy authority board; waste tire fund; and interstate commission on the
Potomac River basin.
(7) On the first day of July, two thousand five: Board of
banking and financial institutions; lending and credit rate board;
governor's cabinet on children and families; oil and gas
conservation commission; health care authority; educational
broadcasting authority; clean coal technology council; racing
commission; manufactured housing construction and safety board;
environmental quality board; commission for the deaf and
hard-of-hearing; public employees insurance agency; oral health
program; and emergency medical services advisory council.
(8) On the first day of July, two thousand six: Family
protection services board; medical services fund advisory council;
West Virginia stream partners program; Ohio River valley water
sanitation commission; state lottery commission; whitewater
commission within the division of natural resources; unemployment
compensation; women's commission; personal assistance services
program; contractor licensing board; and soil conservation
committee.
(9) On the first day of July, two thousand seven: Human
rights commission; office of coalfield community development; and
state geological and economic survey.
(10) On the first day of July, two thousand eight: Ethics
commission; public service commission; and marketing and
development division of department of agriculture.
(11) On the first day of July, two thousand nine: Driver's licensing advisory board; West Virginia commission for national and
community service; membership in the southern regional education
board; bureau of senior services; oil and gas inspector's examining
board; and commission on holocaust education.
CHAPTER 5D. PUBLIC ENERGY AUTHORITY ACT.
ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§5D-1-2. Purpose and intent.
The Legislature finds and declares:
(a) That the long-term health and economy of the United States
will depend upon the availability of reliable sources of energy;
(b) That the state of West Virginia has abundant reserves of
coal, natural gas and other natural resources;
(c) That the economy of the state of West Virginia needs a
reliable and dependable market for the state's coal, natural gas
and other natural resources and the by-products thereof;
(d) That the state of West Virginia needs to encourage the
efficient utilization and disposition of by-products resultant from
the production of natural resources;
(e) That, with all due regard to the protection of the
environment and husbandry of the natural resources of this state,
the health, happiness, safety, right of gainful employment and
general welfare of the citizens of this state will be promoted by
the establishment and operation of coal fired electric generating
plants and transmission facilities and the establishment and
operation of natural gas transmission projects and/or other energy
projects; and
(a) The Legislature finds and declares that:
(1) Many areas of the state have suffered great personal and
economic loss as a result of flooding and if flood controls
measures are not put in place, these areas are likely to suffer in
the future;
(2) Because of past and likely future flooding, some of these
areas have been and will be slow to recover economically, if they
can do so at all;
(3) Because of the topography and geology of these areas, it
may be feasible in some of them to develop flood controls in the
form of dams and resulting reservoirs and water impoundments that
will also provide opportunities for economic development, housing,
recreation, tourism, mitigation of the effects of mining activity
and other beneficial results;
(4) The financial feasibility of the flood controls may be
enhanced by revenues derived from the sale of electric power
generated by hydroelectric power facilities constructed in
conjunction with such dams, reservoirs and impoundments; and
(f)(5) That the means and measures
herein in this article
authorized for the financing, building and operation of the
facilities described in
subsection (e) subdivisions (3) and (4) of
this section are, as a matter of public policy, for the public
purpose of the state.
(b) Accordingly, the public energy authority created
herein
shall be authorized to in this article may initiate
such directives
and take
such any measures
as may be necessary to effectuate the public purpose of this chapter.
§5D-1-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the West Virginia public energy
authority created
in section four of by this article, the duties,
powers, responsibilities and functions of which are specified in
this article.
(2) "Board" means the West Virginia public energy authority
board created in section four of this article, which shall manage
and control the West Virginia public energy authority.
(3) "Bond" means a revenue bond, or note or other evidence of
indebtedness, including, but not limited to, a taxable bond and
commercial paper, issued by the West Virginia economic development
authority or by the authority
to effect the intents and purposes of
this article.
(4) "Construction"
includes means acquisition, construction,
acquisition, reconstruction, enlargement, improvement
and or
providing furnishings or equipment.
(5) "Cost" as applied to
natural gas transmission projects,
electric power projects or other energy projects a project or
projects authorized by the authority includes, but is not limited
to: The cost of their
acquisition and construction, including
all
costs pertaining to pipelines; the cost of acquisition of
all land,
rights-of-way, property rights, easements, franchise rights,
contract rights, lease rights and other rights or interests required by the authority for
such acquisition and the
construction; the cost of demolishing or removing
any pipeline,
buildings or
other structures on
land so acquired,
over or under
acquired land, including
the cost of acquiring any lands to which
such pipelines, the buildings or
other structures may be moved;
the
cost of acquiring or constructing and equipping a principal office
and suboffices of the authority;
the cost of diverting highways,
interchange of highways and access roads to private property,
including the cost of land or easements,
therefor; the cost of all
machinery, furnishings and equipment,
all financing finance charges
and interest prior to
and during construction and after completion
of construction;
the cost of all engineering services and all
expenses of research and development with respect to
natural gas
transmission projects, electric power projects, and related
facilities projects;
the cost of all legal services and expenses;
the cost of all plans, specifications, surveys and estimates of
cost and revenues; all working capital and other expenses necessary
or incident to determining the feasibility or practicability of
acquiring or constructing
any such projects; all administrative
expenses and
such any other expenses
as may be necessary or
incident to the
acquisition or construction of
any such projects;
the financing of
such the acquisition or construction and
the cost
of financing
of the placing of any such project in operation the
construction and operation of projects. Any obligation or expenses
incurred after the effective date of this article by any person,
with the approval of the authority, for surveys, borings, preparation of plans and specifications and other engineering
services in connection with the acquisition or construction of a
project shall be regarded as a part of the cost of
such the project
and shall be reimbursed out of the proceeds of loans or bonds as
authorized by the provisions of this article.
(6) "End-user" means any person who consumes or uses natural
gas in connection with any industrial, commercial, residential or
other use, except that such term shall not include any person
purchasing such natural gas for resale to another person. For
purposes of this article, the term end-user shall include local
distribution companies and intrastate pipelines as defined in
article three, chapter twenty-four of this code.
(7) "Electric power project" means the complex of structures,
machinery and associated equipment for the generation or
transmission of electricity including the production and
distribution of other energy produced from coal, natural gas and
by-products of coal occurring as a result of the production of
coal, and all facilities related or incidental thereto.
(8)(6) "Governmental agency" means the state government or any
agency, department, division or unit
thereof of state government;
counties; municipalities; public service districts; regional
governmental authorities and any other governmental agency, entity,
political subdivision, public corporation or agency; the United
States government or any agency, department, division or unit
thereof of the United States government; and any agency, commission
or authority established pursuant to an interstate compact or agreement.
(9) "Local distribution company" means any person, other than
any interstate pipeline or any intrastate pipeline, engaged in
transportation or local distribution of natural gas and the sale of
natural gas for ultimate consumption.
(10) "Natural gas transmission project" means any natural gas
pipeline and all facilities necessary or incident to the
transportation of natural gas to or for the benefit of industrial
or other end-users in West Virginia, the acquisition or
construction of which is financed, in whole or in part, by the West
Virginia public energy authority or the acquisition or construction
of which is financed, in whole or in part, from funds made
available by grant, loan or any other source by, or through, the
authority as provided in this article, including facilities, the
acquisition or construction of which is authorized, in whole or in
part, by the West Virginia public energy authority or the
acquisition or construction of which is financed, in whole or in
part, from funds made available by grant, loan or any other source
by, or through, the authority as provided in this article,
including all pipelines, buildings and facilities which the
authority deems necessary for the operation of the project,
together with all property, rights, easements and interests which
may be required for the operation of the project.
(11)(7) "Owner" includes all persons having any title or
interest in any property rights, easements and interests authorized
to be acquired by this article.
(12)(8) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; any federal or state
governmental agency; political subdivision; county commission;
municipality; industry; public service district; partnership;
trust; estate; person or individual; and group of persons or
individuals acting individually or as a group or any other legal
entity whatever.
(13) "Pipeline" or "pipelines" means any actual lines of pipe
for the transmission and distribution of natural gas together with
all appurtenances, facilities, structures, equipment, machinery and
other items related to the transmission and distribution of gas
through lines of pipe.
(9) "Project" or "projects" means a dam with an associated
reservoir or water impoundment acquired or constructed for the
primary purpose of controlling flood waters, together with a
hydroelectric power generation facility and electric transmission
lines associated with the facility acquired or constructed in
conjunction with the dam, reservoir or impoundment, together with
real and personal property acquired and costs incurred, incidental
to, or necessary or desirable for the dam, reservoir or
impoundment, hydroelectric power generation facility and associated
electric transmission lines;
(10) "Real property" means lands, structures, franchises and
interests in land, including lands under water and riparian rights, and any and all other things and rights usually included within the
term and includes also any and all other incorporeal hereditaments
and every estate, interest or right, legal or equitable, including
terms for years and liens on the property by way of judgements,
mortgages or otherwise, and also all claims for damages for the
real estate; and
(14)(11) "Revenue" means any money or thing of value collected
by, or paid to, the
West Virginia public energy authority as rents,
loan payments, installment payments,
or other proceeds of sale,
rates, user fees, service charges,
or other charges for
the
electric power produced by
, for the use of, for the lease, the
lease with an option to purchase or the purchase of, or in
connection with any electric power project; or as rent, use,
transportation or service fee or charge for use of, or in
connection with, any natural gas transmission project; a project,
leases, leases with an option to purchase or other money or
property from any source which is received and may be expended for
or pledged as revenues pursuant to this article.
§5D-1-4. West Virginia public energy authority continued; West
Virginia public energy board continued; organization
of authority and board; appointment of board members;
term, compensation and expenses; director of
authority; appointment.
The West Virginia public energy authority
heretofore created
is
hereby continued
under the West Virginia development office
established under section one, article two, chapter five-b of this code. The authority is a governmental instrumentality of the state
and a body corporate. The exercise by the authority of the powers
conferred by this article and the carrying out of its purposes and
duties are determined to be essential governmental functions and
for a public purpose.
The authority shall be controlled, managed and operated by a
nine member board known as the West Virginia public energy
authority board which is
hereby continued. The nine members of the
board shall be appointed by the governor, by and with the advice
and consent of the Senate. Two members shall be appointed to serve
a term of two years; two members shall be appointed to serve a term
of three years; two members shall be appointed to serve a term of
four years; two members shall be appointed to serve a term of five
years; and one member shall be appointed to serve a term of six
years. The successor of each
such appointed member shall be
appointed for a term of five years, except that any person
appointed to fill a vacancy occurring prior to the expiration of
the term for which his
or her predecessor was appointed shall be
appointed only for the remainder of
such the term. Each board
member shall serve until the appointment of his
or her successor.
No more than five of the board members shall at any one time belong
to the same political party. No more than four members of the
board shall be employed by or associated with any industry this
authority
is empowered to may affect. Two members of the board
shall be persons who have significant experience in the advocacy of
environmental protection. Board members may be reappointed to serve additional terms.
All members of the board shall be citizens of the state.
Before entering upon his or her duties, each member of the board
shall comply with the requirements of article one, chapter six of
this code and give bond in the sum of twenty-five thousand dollars
in the manner provided in article two, chapter six of this code.
The governor may remove any board member for cause as provided in
article six, chapter six of this code.
Annually
, the board shall elect one of its members as chairman
and another as vice chairman and shall appoint a secretary-
treasurer, who need not be a member of the board. Five members of
the board
shall constitute a quorum and the affirmative vote of the
majority of members present at any meeting
shall be is necessary
for any action taken by vote of the board. No vacancy in the
membership of the board shall impair the rights of a quorum by
such
the vote to exercise all the rights and perform all the duties of
the board and the authority. The person appointed as secretary-
treasurer, including a board member if he
or she is
so appointed,
shall give bond in the sum of fifty thousand dollars in the manner
provided in article two, chapter six of this code.
Each member of the board shall receive the same compensation
and expense reimbursement
as that is paid to members of the
Legislature for their interim duties as recommended by the citizens
legislative compensation commission and authorized by law for each
day or portion
thereof of a day engaged in the discharge of
official duties. All
such expenses incurred by the board shall be payable solely from funds of the authority or from funds
appropriated to the authority for
such that purpose by the
Legislature and no liability or obligation shall be incurred by the
authority beyond the extent to which moneys are available from
funds of the authority or from
such the appropriations.
There shall also be a director of the authority appointed by
the governor, with the advice and consent of the Senate, who shall
serve at the governor's will and pleasure, who
shall be is
responsible for managing and administering the daily functions of
the authority and for performing any and all other functions
necessary or helpful to the effective functioning of the authority,
together with all other functions and powers as may be delegated by
the board.
§5D-1-5. Powers, duties and responsibilities of authority
generally; termination of certain powers.
The
West Virginia public energy authority
is hereby granted,
has and may exercise all powers necessary or appropriate to carry
out and effectuate its corporate purpose. The authority
shall have
the power and capacity to may:
(1) Adopt and, from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business and
legislative rules to implement and make
effective its powers and duties,
such the rules
and regulations to
be
promulgated proposed in accordance with the provisions of
article three, chapter twenty-nine-a of this code
.;
(2) Adopt and use an official seal and alter
the same it at pleasure
.;
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided
.;
(4) Sue and be sued in its own name and plead and be impleaded
in its own name and particularly to enforce the obligations and
covenants made under this article. Any actions against the
authority shall be brought in the circuit court of Kanawha County
.;
(5) Foster, encourage and promote the mineral development
industry.
(6) Represent the state with respect to national initiatives
concerning the mineral development industry, and international
marketing activities affecting the mineral development industry.
(7) Engage in strategic planning to enable the state to cope
with changes affecting or which may affect the mineral development
industry.
(8)(5) Acquire, whether by purchase, construction, gift,
lease, lease-purchase or otherwise, any electric power project
or
natural gas transmission project.
In the event that an electric
power project to be constructed pursuant to this article is
designed to utilize coal wastes for the generation of electricity
or the production of other energy, such the project shall also be
capable of using coal as its primary energy input: Provided, That
it shall be is demonstrated to the authority's satisfaction that
quantities of coal wastes exist in amounts sufficient to provide
energy input for such project for the term of the bonds or notes
issued by the authority to finance the project and are accessible to the project. The project shall be planned and coordinated in
cooperation with the department of environmental protection,
including compliance with the provisions of article fourteen,
chapter twenty-two of this code relating to dam safety, the office
of emergency services, the hazard mitigation council established by
executive order number 18-03, the soil conservation district in
which the project is situate, and any other necessary governmental
agencies;
(9)(6) Lease, lease with an option by the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of, to
persons other than governmental agencies, any or all of its
electric power projects or natural gas transmission projects for
such rentals or amounts and upon
such terms and conditions
as
considered advisable by the public energy authority board
may deem
advisable.;
(10)(7) Finance one or more
electric power projects or natural
gas transmission projects by making secured loans to persons other
than governmental agencies to provide funds for the acquisition, by
purchase, construction or otherwise, of any
such project or
projects
.;
(11)(8) Issue bonds for the purpose of financing the cost of
acquisition and construction of one or more
electric power projects
or natural gas transmission projects or any additions, extensions
or improvements
thereto to the projects which will be sold, leased
with an option by the lessee to purchase, leased or otherwise
disposed of to persons other than governmental agencies or for the purpose of loaning the proceeds thereof to persons other than
governmental agencies for the
acquisition and construction of
said
the projects
or both.
Such The bonds shall be issued and the
payment of
such the bonds secured in the manner provided by the
applicable provisions of sections seven, eight, nine, ten, eleven,
twelve, thirteen and seventeen, article two-c, chapter thirteen of
this code:
Provided, That the principal and interest on
such the
bonds shall be payable out of the revenues derived from the lease,
lease with an option by the lessee to purchase, sale or other
disposition of or from loan payments in connection with the
electric power project or natural gas transmission project for
which the bonds are issued or any other revenue derived from
such
electric power project or natural gas transmission the project
.;
(12)(9) In the event that the electric power project or
natural gas transmission If the project is to be owned by a
governmental agency, apply to the economic development authority
for the issuance of bonds payable solely from revenues as provided
in article fifteen, chapter thirty-one of this code:
Provided,
That the economic development authority
shall may not issue any
such bonds except by an act of general law:
Provided, however,
That the authority shall require that in the construction of any
such project, prevailing wages shall be paid as part of a project
specific agreement which also takes into account terms and
conditions contained in the West Virginia - Ohio valley market
retention and recovery agreement or a comparable agreement
.;
(13)(10) Acquire by gift or purchase, hold and dispose of real and personal property in the exercise of its powers and the
performance of its duties as set forth in this article
.;
(14)(11) Acquire in the name of the state, by purchase or
otherwise, on
such the terms and in
such the manner
as it
deems
considers proper, or by the exercise of the right of eminent domain
in the manner provided in chapter fifty-four of this code,
such any
real property or parts
thereof of real property or rights
therein
in real property, rights-of-way, property, rights, easements and
interests it
deems considers necessary for carrying out the
provisions of this article and compensation shall be paid for
public or private lands
so that are taken; and the authority may
sell any of the real property or parts
thereof of the real property
or rights
therein in the real property, rights-of-way, property,
rights, easements and interests acquired hereunder in
such the
manner and upon
such terms and conditions
as the authority
deems
considers proper:
Provided, That if the authority determines that
land or an interest
therein acquired by the authority through the
exercise of the power of eminent domain for the purpose of this
article is no longer necessary or useful for
such those purposes
and if the authority desires to sell
such the land or interest,
therein the authority shall first offer to sell
such the land or
interest to the owner or owners from whom it was acquired, at a
price equal to its fair market value:
Provided, however, That if
the prior owner or owners
shall decline decline to reacquire the
land or interest
therein in the land, the authority
shall be
authorized to may dispose of
such the property by direct sale, auction or competitive bidding.
In no case shall such Land or an
interest
therein in land acquired under this subdivision
may not be
sold for less than its fair market value. This article does not
authorize the authority to take or disturb property or facilities
belonging to any public utility or to a common carrier, which
property or facilities are required for the proper and convenient
operation of
such the public utility or common carrier, except for
the acquisition of easements or rights-of-way which will not
unreasonably interfere with the operation of the property or
facilities of
such the public utility or common carrier and
in the
event of the if there is a taking or disturbance of property or
facilities of public utility or common carrier, provision shall be
made for the restoration, relocation or duplication of
such the
property or facilities elsewhere at the sole cost of the authority.
The term "real property" as used in this article is defined to
include lands, structures, franchises and interests in land,
including lands under water and riparian rights, and any and all
other things and rights usually included within the said that term,
and includes also any and all interests in such the property less
than full title, such as easements, rights-of-way, uses, leases,
licenses and all other incorporeal hereditaments and every estate,
interest or right, legal or equitable, including terms for years
and liens thereon by way of judgments, mortgages or otherwise, and
also all claims for damages for such the real estate.
For the purposes of this
section article, "fair market value"
shall be determined by an appraisal made by an independent person or firm chosen by the authority. The appraisal shall be performed
using the principles contained in the "Uniform Appraisal Standards
for Federal Land Acquisitions" published under the auspices of the
interagency land acquisition conference, United States government
printing office, 1972
.;
(15)(12) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the performance
of its duties and the execution of its powers:
Provided, That if
any
electric power project or natural gas transmission project is
to be constructed by a person other than a governmental agency, and
with whom the authority has contracted to lease, sell or finance
such the project upon its completion, then the authority
shall may
not be required to comply with the provisions of article
twenty-two, chapter five of this code requiring the solicitation of
competitive bids for the construction of
such a the project
.;
(16)(13) Employ managers, superintendents and other employees
and retain or contract with consulting engineers, financial
consultants, accountants, architects, attorneys and
such any other
consultants and independent contractors
as are necessary in its
judgment to carry out the provisions of this article and fix
the
their compensation or fees
thereof. All expenses
thereof shall be
payable solely from the proceeds of bonds issued by the economic
development authority, from the proceeds of bonds issued by or loan
payments, lease payments or other payments received by the
authority, from revenues and from funds appropriated
for such
purpose by the Legislature
.;
(17)(14) Receive and accept from any federal agency, or any
other source, grants for or in aid of the construction of any
project or for research and development with respect to
electric
power projects, natural gas transmission projects or other energy
projects a project and receive and accept aid or contribution from
any source of money, property, labor or other things of value to be
held, used and applied only for the purpose for which
such the
grants and contributions are made
.;
(18)(15) Purchase property coverage and liability insurance
for any
electric power project or natural gas transmission project
or other energy project and for the principal office and suboffices
of the authority, insurance protecting the authority and its
officers and employees against liability, if any, for damage to
property or injury to or death of persons arising from its
operations and any other insurance which may be provided for under
a resolution authorizing the issuance of bonds or in any trust
agreement securing
the same. this;
(19) Charge, alter and collect transportation fees and other
charges for the use or services of any natural gas transmission
project as provided in this article.
(20)(16) Charge and collect fees or other charges from any
energy project undertaken as a result of this article
.;
(21)(17) When
the electric power project a project is owned
and operated by the authority,
charge reasonable fees in connection
with the making and providing of electric power and the sale
thereof to corporations, states, municipalities or other entities in the furtherance of the purposes of this article. sell the
electric power generated by the project solely in the wholesale
market at reasonable rates;
(22) Purchase and sell electricity or other energy produced by
an electric power project or flood mitigation dam project with
small electric power generator capacity in and out of the state of
West Virginia.
(23)(18) Enter into wheeling contracts Arrange for the
transmission of electric power over the authority's or another
party's person's lines
.;
(24)(19) Make and enter into contracts for the construction of
a project facility and joint ownership with
another a public
utility and the provisions of this article
shall may not constrain
the authority from participating as a joint partner
therein.;
(25)(20) Make and enter into joint ownership agreements
.;
(26)(21) Establish or increase reserves from moneys received
or to be received by the authority to secure or to pay the
principal of and interest on the bonds issued by the economic
development authority pursuant to the provisions of article
fifteen, chapter thirty-one of this code or bonds issued by the
authority
.;
(27) Broker the purchase of natural gas for resale to
end-users: Provided, That whenever there are local distribution
company pipelines already in place the authority shall arrange to
transport the gas through such pipelines at the rates approved by
the public service commission of West Virginia.
(28)(22) Engage in market research, feasibility studies,
commercial research and other studies and research pertaining to
electric power projects and natural gas transmission projects or
any other functions of the authority pursuant to this article
.;
(29)(23) Enter upon any lands, waters and premises in the
state for the purpose of making surveys and examinations
as it
may
deem considers necessary or convenient for the purpose of this
article and
such entry
shall may not be
deemed considered a
trespass, nor
shall may an entry for
such these purposes be
deemed
considered an entry under any condemnation proceedings which may be
then pending and the authority shall make reimbursement for any
actual damages resulting to
such the lands, waters and premises as
a result of
such these activities
.;
(30)(24) Participate in any reorganization proceeding pending
pursuant to the United States Code (being the act of congress
establishing a uniform system of bankruptcy throughout the United
States, as amended) or any receivership proceeding in a state or
federal court for the reorganization or liquidation of a
responsible buyer or responsible tenant. The authority may file
its claim against any
such responsible buyer or responsible tenant
in any of the foregoing proceedings, vote upon any question pending
therein, which requires the approval of the creditors participating
in any reorganization proceeding or receivership, exchange any
evidence of
such indebtedness for any property, security or
evidence of indebtedness offered as a part of the reorganization of
such the responsible buyer or responsible tenant or of any entity formed to acquire the assets thereof and may compromise or reduce
the amount of any indebtedness owing to it as a part of any
such
reorganization
.;
(31)(25) Make or enter into management contracts with a second
party or parties to operate any
electric power project or any gas
transmission project and associated facilities,
flood mitigation
dam project with small electric power generator capacity or other
related energy project, either during construction or permanent
operation
.;
(32)(26) Do all acts necessary and proper to carry out the
powers expressly granted to the authority in this article
.; and
(33) Nothing herein shall be construed to permit the
transportation of gas produced outside of this state through a
natural gas transmission project.
(34)(27) The authority shall, After consultation with other
agencies of state government having environmental regulatory
functions,
promulgate propose legislative rules pursuant to
article
three, chapter twenty-nine-a of this code, to establish standards
and principles to be applied to all projects in assessing the
effects of projects on the environment:
Provided, That when a
proposed project requires an environmental impact statement
pursuant to the National Environmental Policy Act of 1969, a copy
of the environmental impact statement shall be filed with the
authority and be made available prior to any final decision or
final approval of any project and prior to the conducting of any
public hearings regarding the project and in any
such case, no assessment pursuant to the legislative rule need be made.
§5D-1-5b. Public hearing before final consideration of bond issue
or exercise of right of eminent domain.
(a) Prior to any final decision of the board to take action
with respect to the issuance of revenue bonds or to authorize the
exercise of the right of eminent domain with respect to any
electric power or natural gas transmission project, the authority
shall:
(1) Prepare and reduce to writing the nature of the proposed
project, a summary of the data supporting the board's determination
and a description and location identification of the proposed real
property, right-of-way, or easement to be acquired. The written
statement under this section and the environmental impact statement
or assessment required pursuant to section five of this article
shall be available for public inspection at the office of the
county clerk at the county courthouse of each county in which the
project is located during the two successive weeks before the date
of the public hearing required by this section;
(2) Provide for a public hearing to be held at a reasonable
time and place within at least one county in which the project is
located to allow interested members of the public to attend the
hearing without undue hardship. Members of the public may be
present, submit statements and testimony and question the
authority's representative appointed pursuant to this section;
(3) Not less than thirty days prior to
such the public
hearing, provide notice to all members of the Legislature, unless otherwise notified by a member that
such the member does not desire
such the notice, to the county commission of each county within
which the project is located and to the municipal council of each
municipality in
said the county;
(4) Cause to be published a notice of the required public
hearing. The notice shall be published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area shall be
each county in which the project is located. The public hearing
shall be held no earlier than the fourteenth successive day and no
later than the twenty-first successive day following the first
publication of the notice. The notice shall contain the time and
place of the public hearing along with a brief description of the
project and its proposed location;
(5) Cause a copy of the required notice to be posted at the
county seat of each county within which the project is located for
members of the public to observe.
Such The notice shall remain
posted for two successive weeks prior to the date of the public
hearing;
(6) Appoint a representative of the authority who shall
conduct the required public hearing. The representative of the
authority shall make a report of the public hearing available for
inspection by the public or, upon written request of any interested
person, provide a written copy
thereof of the report and to all
individuals previously receiving written notice of the hearing
within thirty days following the public hearing; and
(7) The representative of the authority conducting the public
hearing shall make the results of the hearing available to the
board for its consideration prior to the board making decisions
regarding the proposed project.
(b) No final action of the board with respect to the issuance
of revenue bonds or authorizing the exercise of the right of
eminent domain with respect to a proposed project may be made
before the thirtieth successive day following the public hearing
required by this section, but in no event shall final action of the
board be made prior to fifteen days after the report of the public
hearings are made available to the public in general.
§5D-1-6. Authority may construct, finance, lease, sell, maintain,
etc.,
electric power projects and transmission
facilities projects.
To accomplish the public policies and purposes and to meet the
responsibility of the state as set forth in this article, the
West
Virginia public energy authority may initiate, acquire, construct,
maintain, lease, lease with an option for the lessee to purchase,
sell, by installment sale or otherwise, or otherwise dispose of,
repair and operate
electric power generating projects and
transmission facilities, projects. and The authority may issue
bonds for the purpose of financing the cost of acquisition and
construction of
electric power projects and transmission facilities
which projects that will be sold, leased, leased with an option by
the lessee to purchase or otherwise disposed of to person other
than governmental agencies or for the purpose of loaning the proceeds thereof to persons other than governmental agencies for
the acquisition and construction of
said the projects or both.
; or
if the electric power If a project is to be owned by a governmental
agency
, the authority shall request the issuance of bonds by the
economic development authority, payable solely from revenues, to
pay the cost or finance, in whole or in part,
such the projects:
Provided, That the economic development authority
shall not be
authorized to may not issue any
such bonds except by an act of
general law, as provided in article fifteen, chapter thirty-one of
this code
. An electric power , and a project shall not be
undertaken unless it has been determined by the authority that the
project will be consistent with the purposes set out in this
article. Any resolution providing for acquiring or constructing
such projects shall include a finding by the authority that
such
these determinations have been made.
The authority
is authorized and directed shall:
(1)
To Cooperate with the appropriate agencies and officials
of the United States government to the end that any
electric power
project shall be
so planned and constructed as to be adaptable to
the plans of the United States
.;
(2)
To Apply to the appropriate agencies and officials of the
United States government including the federal energy regulatory
commission for
such any licenses, permits or approval of its plans
or projects
as it
may deem considers necessary or advisable and, in
its discretion and upon
such these terms and conditions
as it
may
deem considers appropriate, to accept
such the licenses, permits or approvals
as may be that are tendered to it by
such the agencies or
officials and
such the federal or other public or governmental
assistance as is now or may hereafter become available to it; and
to enter into contracts with
such the agencies or officials
relating to the construction or operation of any project authorized
by this article
.;
(3)
To Proceed with the physical construction or completion of
any project authorized by this article, including the erection of
the necessary power houses
, transmission lines and other
facilities, instrumentalities and things necessary or convenient to
that end and
including also the erection of such transmission lines
as may be necessary to conduct the electricity; and including also
the acquisition or construction of transmission lines or
contracting for the use of
such the electric transmission lines
,
that are available or
which may be made available, to conduct
electricity to
such the point or points at which
the electricity is
sold by the authority to any person, corporation or association,
public or private. it is made available for sale in the wholesale
market; and
(4)
To cooperate Cooperate with and, when the board
deems
considers it feasible and advisable,
to enter into contractual
arrangements with utility companies.
(5) To purchase, when available, coal, natural gas or the
by-products of coal produced in this state as the fuel source for
all electric power projects.
§5D-1-12. Maintenance, operation and repair of projects.
Each
electric power project, each natural gas transmission
project or other energy project owned and operated by the
authority, when constructed and placed in operation, shall be
maintained and kept in good condition and repair by the authority.
Each
such project
owned and operated by the authority shall be
operated by
such operating employees
as employed by the authority
employs or pursuant to a contract or lease with a governmental
agency or
other person. All public or private property damaged or
destroyed in carrying out the provisions of this article and in the
exercise of the powers granted
hereunder under this article with
regard to
any a project shall be restored or repaired and placed in
its original condition, as nearly as practicable, or adequate
compensation made therefor out of funds provided in accordance with
the provisions of this article.
§5D-1-14. Exemption from taxation.
The exercise of the powers granted to the authority by this
article will be in all respects for the benefit of the people of
the state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their residential,
agricultural, recreational, economic, commercial and industrial
opportunities and is a public purpose. As the ownership, operation
and maintenance of
natural gas transmission projects and electric
power projects and other energy projects owned
and/or operated by
the authority
will or another governmental agency constitute the
performance of essential governmental functions, the authority
or
other governmental agency shall not be is not required to pay any taxes or assessments upon any
such project or upon any property
acquired or used by the authority or upon the income therefrom.
Natural gas transmission projects and electric power projects and
other energy Projects owned or leased by persons other than
the
authority or a governmental
agencies agency shall be are subject to
any taxes or assessments upon any
such project or projects
as
provided by law. Bonds issued by either the
West Virginia economic
development authority or the authority and all interest and income
thereon
shall be are exempt from all taxation by this state, or any
county, municipality, political subdivision or agency thereof,
except inheritance taxes:
Provided, That the authority shall
require a fee in substitution of any ad valorem tax exemption to be
negotiated by
said the authority.
§5D-1-15. Acquisition of property by authority -- Acquisition by
purchase, lease or eminent domain; governmental
agencies authorized to convey, etc., property; sale
of property by authority.
(a) The authority may acquire by purchase, or otherwise, as
authorized by this article whenever it
deems such considers the
acquisition expedient, any land, property, rights, rights-of-way,
franchises, easements, leases and other interests in lands it
deems
considers necessary or convenient for the construction and
operation of any
natural gas transmission project, any electric
power project, or other energy project.
(b) Any contrary provision of law notwithstanding, all
governmental agencies
notwithstanding any contrary provision of law, may lease, lend, grant or convey to the authority, at its
request, upon
such terms
as the proper authorities of
such the
governmental agencies
deem consider reasonable and fair, any real
property or interest therein, including improvements thereto or
personal property which is necessary or convenient to the
effectuation of the authorized purposes of the authority, including
public roads and other real property or interests therein,
including improvements thereto or personal property already devoted
to public use.
(c) The authority may sell any land, property, rights,
rights-of-way, franchises, easements, leases and other interests in
land acquired under
the provisions of this section in
such the
manner and upon
such terms and conditions
as it
deems considers
proper.
§5D-1-16. Authority not public utility and not subject to full
jurisdiction of public service commission; authority
subject to provisions concerning gas pipeline safety.
Notwithstanding anything contained in this article to the
contrary, and specifically notwithstanding Any provision of this
article to the contrary notwithstanding, including any activities
of the authority
which shall constitute that constitute a public
service, the authority
shall not be considered or deemed is not a
public utility in any respect for purposes of chapter twenty-four
of this code and neither the authority, nor any of its activities
or the activities of its agents or employees, nor any project
constructed, maintained or owned and operated by the authority, nor any other matters pertaining to the authority,
shall be are subject
to the jurisdiction of the public service commission
. of West
Virginia, either with respect to the powers of said public service
commission generally, or with respect to its power over rates, or
otherwise: Provided, That the authority and all natural gas
transmission projects which it constructs, maintains or operates
shall nevertheless be subject to the provisions of chapter twenty-
four-b of this code concerning gas pipeline safety.
_______
(NOTE: The purpose of this bill is to reconstitute the public
energy authority which is scheduled to terminate July 1, 2004. It
also authorizes issuance and sale of bonds, exercise of eminent
domain and long-term contracts for sale of electric power from the
construction of flood mitigation dams with small electric power
generator capacity.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)