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Introduced Version Senate Bill 322 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 322

(By Senators Tomblin, Mr. President, Bailey, McCabe, Caldwell, Chafin, Fanning, Plymale, Unger and Rowe)

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[Introduced January 29, 2004; referred to the Committee on Economic Development; and then to the Committee on Finance.]

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A BILL to amend and reenact §4-10-5 of the code of West Virginia, 1931, as amended; and to amend and reenact §5D-1-5 of said code, all relating to reconstituting the public energy authority; and authorizing bonding authority, eminent domain and long-term contracts for sale of electric power from the construction of flood mitigation dams with small electric power generator capacity.

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-1-5 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; 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 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.
§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 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 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) Acquire, whether by purchase, construction, gift, lease, lease-purchase or otherwise, any electric power project, flood mitigation dam projects with small electric power generator capacity or natural gas transmission project. In the event that If 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. Flood mitigation dam projects with small electric power generator capacity shall be planned and coordinated in cooperation with the United States Army Corps of Engineers and the soil conservation district in which the flood mitigation dam project is situate.
(9) 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 the public energy authority board may deem considers advisable.
(10) Finance one or more electric power projects or natural gas transmission projects or flood mitigation dam projects with small electric power generator capacity 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) 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, including flood mitigation dam projects with small electric power generator capacity 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 acquired and constructed. 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 the electric power project or natural gas transmission project.
(12) In the event that If the electric power project or natural gas transmission project or flood mitigation dam project with small electric power generator capacity 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) 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) Acquire in the name of the state, by purchase or otherwise, on such terms and in such 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 the real property or parts thereof or rights therein, 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 taken; and the authority may sell any of the real property or parts thereof or rights therein, 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 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 to reacquire the land or interest therein, 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 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 "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) 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 or flood mitigation dam project with small electric power generator capacity 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 project.
(16) Employ managers, superintendents and other employees, and retain or contract with consulting engineers, financial consultants, accountants, architects, attorneys, and such other consultants and independent contractors as are necessary in its judgment to carry out the provisions of this article, and fix the 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) 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, including flood mitigation dam project with small electric power generator capacity, 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) Purchase property coverage and liability insurance for any electric power project or natural gas transmission project or other energy project, including flood mitigation dam project with small electric power generator capacity 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) Charge and collect fees or other charges from any energy project undertaken as a result of this article.
(21) When the electric power project or flood mitigation dam project with small electric power generator capacity 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.
(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) Enter into wheeling contracts for the transmission of electric power over the authority's or another party's lines.
(24) Make and enter into contracts for the construction of a project facility and joint ownership with another utility, and the provisions of this article shall may not constrain the authority from participating as a joint partner. therein
(25) Make and enter into joint ownership agreements.
(26) 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) Engage in market research, feasibility studies, commercial research, and other studies and research pertaining to electric power projects and natural gas transmission projects, flood mitigation dam projects with small electric power generator capacity or any other functions of the authority pursuant to this article.
(29) 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) 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) 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) Do all acts necessary and proper to carry out the powers expressly granted to the authority in this article.
(33) Nothing herein shall in this section may be construed to permit the transportation of gas produced outside of this state through a natural gas transmission project.
(34) The authority shall, after consultation with other agencies of state government having environmental regulatory functions, promulgate propose legislative rules pursuant to 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.
(35) The power and authority granted to the public energy authority pursuant to this section and section six of this article to initiate, acquire, construct, finance or issue bonds for electric power projects and transmission facilities, or to exercise the power of eminent domain with respect to any project, shall terminate on the effective date of this section: Provided, That nothing herein shall in this section may be construed to affect the validity of any act of the public energy authority prior to the effective date of this section or to impair the rights of bondholders with respect to bonds or other evidence of indebtedness issued prior to the effective date of this section. Following the effective date of this section, the public energy authority may exercise any power expressly granted pursuant to this section or section six of this article with respect to any project or facility previously constructed or acquired, any existing contractual obligations, and any outstanding bonded indebtedness.



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.
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