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.