Senate Bill No. 723
(By Senator McCabe)
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[Introduced March 21, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §8-19-4 of the Code of West Virginia,
1931, as amended; to amend and reenact §22B-2-3 of said code;
and to amend and reenact §24-2-11a and §24-2-11c of said code,
all relating to establishing time frames for certain decisions
by the circuit court and Supreme Court of Appeals regarding
judicial review of air quality board orders and actions
regarding the purchase, acquisition, establishment of or
construction of waterworks or electric power systems;
requiring that rules regarding siting certificates be subject
to legislative approval; and exempting the construction of
transmission lines from exempt wholesale generators from the
requirements of sections eleven and eleven-a, article two,
chapter twenty-four of said code.
Be it enacted by the Legislature of West Virginia:
That §8-19-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §22B-2-3 of said code be amended and
reenacted; and that §24-2-11a and §24-2-11c of said code be amended
and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER
SYSTEMS.
§8-19-4. Estimate of cost; ordinance or order for issuance of
revenue bonds; interest on bonds; rates for services;
exemption from taxation.
(a) Whenever a municipality or county commission shall, under
the provisions of this article, determine to acquire, by purchase
or otherwise, construct, establish, extend or equip a waterworks
system or an electric power system, or to construct any additions,
betterments or improvements to any waterworks or electric power
system, it shall cause an estimate to be made of the cost thereof,
and may, by ordinance or order, provide for the issuance of revenue
bonds under the provisions of this article, which ordinance or
order shall set forth a brief description of the contemplated
undertaking, the estimated cost thereof, the amount, rate or rates
of interest, the time and place of payment, and other details in
connection with the issuance of the bonds. Such bonds shall be in
such form and shall be negotiated and sold in such manner and upon
such terms as the governing body of such municipality or county
commission may by ordinance or order specify. All such bonds and the interest thereon shall be exempt from all taxation by this
state, or any county, municipality or county commission, political
subdivision or agency thereof. Notwithstanding any other provision
of this code to the contrary, the real and personal property which
a municipality or county has acquired and constructed according to
the provisions of this article, and any leasehold interest therein
held by other persons, shall be
deemed considered public property
and shall be exempt from taxation by the state, or any county,
municipality or other levying body, so long as the same is owned by
such municipality or county:
Provided, That with respect to
electric power systems, this exemption for real and personal
property shall be applicable only for such real and personal
property: (1) Physically situate within the municipal or county
boundaries of the municipality or county which acquired or
constructed such electric power system and there was in place prior
to the effective date of the amendments to this section made in the
year one thousand nine hundred ninety-two, an agreement between the
municipality and the county commission for payments in lieu of tax;
or (2) acquired or constructed with the written agreement of the
county school board, county commission and any municipal authority
within whose jurisdiction the electric power system is or is to be
physically situate. Notwithstanding anything contained in this
statute to the contrary, this exemption shall be applicable to any
leasehold or similar interest held by persons other than a municipality or county only if acquired or constructed with the
written agreement of the county school board, county commission and
any municipal authority within whose jurisdiction the electric
power system is or is to be physically situate:
Provided, however,
That payments made to any county commission, county school board or
municipality in lieu of tax pursuant to such an agreement shall be
distributed as if the payments resulted from ad valorem property
taxation. Such bonds shall bear interest at a rate per annum set
by the municipality or county commission, payable at such times,
and shall be payable as to principal at such times, not exceeding
fifty years from their date, and at such place or places, within or
without the state, as shall be prescribed in the ordinance or order
providing for their issuance. Unless the governing body of the
municipality or county commission shall otherwise determine, such
ordinance or order shall also declare that a statutory mortgage
lien shall exist upon the property so to be acquired, constructed,
established, extended or equipped, fix minimum rates or charges for
water or electricity to be collected prior to the payment of all of
said bonds and shall pledge the revenues derived from the
waterworks or electric power system for the purpose of paying such
bonds and interest thereon, which pledge shall definitely fix and
determine the amount of revenues which shall be necessary to be set
apart and applied to the payment of the principal of and interest
upon the bonds and the proportion of the balance of such revenues, which are to be set aside as a proper and adequate depreciation
account, and the remainder shall be set aside for the reasonable
and proper maintenance and operation thereof. The rates or charges
to be charged for the services from such waterworks or electric
power system shall be sufficient at all times to provide for the
payment of interest upon all bonds and to create a sinking fund to
pay the principal thereof as and when the same become due, and
reasonable reserves therefor, and to provide
for the repair,
maintenance and operation of the waterworks or electric power
system, and to provide an adequate depreciation fund, and to make
any other payments which shall be required or provided
for in the
ordinance or order authorizing the issuance of said bonds.
(b) Any action filed in the circuit court challenging this
section or an action taken under this section shall be resolved by
the circuit court within four months of the filing of the action
with the circuit court. If the circuit court does not resolve the
action within the four-month period or does not, within the four
month period, enter an order stating just cause why the action has
not been timely resolved, the circuit clerk shall send a written
notice to the parties that unless all the parties to the action
file an objection within fourteen days of the date of the notice,
the appeal will be transferred to the Supreme Court of Appeals due
to the failure of the circuit court to timely resolve the action.
The appeal shall be transferred without the necessity of the filing of any petition or further document by any party. This subsection
shall apply to all actions regarding this section pending before a
circuit court on the effective date of this subsection and those
pending actions shall be resolved by the circuit court within two
months of the effective date of this subsection.
CHAPTER 22B. ENVIRONMENTAL BOARDS.
ARTICLE 2. AIR QUALITY BOARD.
§22B-2-3. Judicial review of air quality board orders.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if the
provisions of said section nine were set forth in extenso in this
section, with the following modifications or exceptions:
(1) As to cases involving an order denying an application for
a permit, or approving or modifying the terms and conditions of a
permit, the
petition for review appeal shall be filed in the
circuit court of Kanawha County;
and
(2)
As to cases referred to in subsection (1) herein, the
circuit court shall enter a final decision within four months of
the date the appeal is filed in the circuit court. All such
appeals pending before the circuit court on the effective date of
this section, shall be decided within four months of the effective
date of this section. If the circuit court does not enter a final
order within the four-month period or does not, within the
four-month period, enter an order stating just cause why the order has not been timely entered, the circuit clerk shall send a written
notice to the parties that unless all the parties to the appeal
file an objection within fourteen days of the date of the notice,
the appeal will be transferred to the Supreme Court of Appeals as
provided in section one, article six, chapter twenty-nine-a of this
code due to the failure of the circuit court to timely enter an
order. The appeal shall be transferred without the necessity of
the filing of any petition or further document by any party;
(3) As to cases referred to in subsection (1) herein, the
judgment of the circuit court is final unless reversed, vacated or
modified on appeal to the Supreme Court of Appeals, in accordance
with the provisions of section one, article six, chapter
twenty-nine-a of this code, except that notwithstanding the
provisions of said section one the petition seeking review shall be
filed with the Supreme Court of Appeals within thirty days from the
date of entry of the judgment of the circuit court. The Supreme
Court shall resolve the appeal within four months from the date the
petition is filed with the Supreme Court; and
(2) (4) As to all other cases, the petition appeal shall be
filed, in the circuit court of the county wherein the alleged
statutory air pollution complained of originated or in Kanawha
County upon agreement between the parties.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
PART IV. REVENUE BOND FINANCING.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11a. Requirement for certificate of public convenience and
necessity before beginning construction of high
voltage transmission line; contents of application;
notice; hearing; criteria for granting or denying
certificate; regulations.
(a) No public utility, person or corporation shall begin
construction of a high voltage transmission line of two hundred
thousand volts or over, which line is not an ordinary extension of
an existing system in the usual course of business as defined by
the Public Service Commission, unless and until it or he
or she
shall have obtained from the Public Service Commission a
certificate of public convenience and necessity approving the
construction and proposed location of such transmission line.
(b) The application for such certificate shall be in such form
as the Commission may prescribe and shall contain:
(1) A description, in such detail as the Commission may
prescribe, of the location and type of line facilities which the
applicant proposes to construct;
(2) A statement justifying the need for such facilities;
(3) A statement of the environmental impact of such line
facilities; and
(4) Such other information as the applicant may
deem consider
relevant or the Commission may require.
(c) Upon the filing of such application, the applicant shall
publish, in such form as the Commission shall direct, as a Class II
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, the publication area for
such publication to be each county in which any portion of the
proposed transmission line is to be constructed, a notice of the
filing of such application and that the Commission may approve the
same unless within fifteen days after completion of publication a
written request for a hearing thereon has been received by the
Commission from a person or persons alleging that the proposed
transmission line or its location is against the public interest.
If such request be timely received, the Commission shall set the
matter for hearing on a date within sixty days from completion of
said publication, and shall require the applicant to publish notice
of the time and place of hearing in the same manner as is herein
required for the publication of notice of the filing of the
application.
(d) Within sixty days after the filing of said application, or
if hearing shall be held thereon, within ninety days after final
submission on oral argument or brief, the Commission may approve
the application if it shall find and determine that the proposed
transmission line:
(1) Will economically, adequately and reliably contribute to
meeting the present and anticipated requirements for electric power of the customers served by the applicant or is necessary and
desirable for present and anticipated reliability of service for
electric power for its service area or region; and
(2) Will result in an acceptable balance between reasonable
power needs and reasonable environmental factors.
(e) The Commission may impose conditions upon its approval of
the application, or modify the applicant's proposal, to achieve an
acceptable balance between reasonable power needs and reasonable
environmental factors.
(f) The provisions of this section shall not apply to the
construction of line facilities which will be part of a
transmission line for which any right-of-way has been acquired
prior to the first day of January, one thousand nine hundred
seventy-three.
(g) The Commission shall prescribe such rules
and regulations
as it may
deem consider proper for the administration and
enforcement of the provisions of this section, which rules
and
regulations shall be promulgated in accordance with the applicable
provisions of chapter twenty-nine-a of this code as if the same
were set forth herein in extenso.
(h) Notwithstanding any other provision of the law to the
contrary, the Commission shall determine, in its discretion, which
transmission line or lines crossing above the Ohio River must be
marked to be made visible to airborne traffic flying in any area where such lines exist, and shall, within one hundred twenty days
of the effective date of this section, promulgate rules requiring
that all public utilities or persons who install or maintain such
lines make the necessary markings.
(i) The provisions of this section and the provisions of
sections eleven and eleven-a of this article shall not apply to the
construction of any transmission line from an exempt wholesale
generator to the interconnection point specified in the exempt
wholesale generator's facility interconnection agreement:
Provided, That such transmission line will not require eminent
domain proceedings and that such transmission line is less than two
miles in length. This subsection shall apply to any transmission
line for which there is an application pending before the Public
Service Commission on the effective date of this subsection.
§24-2-11c. Siting certificates for certain electric generating
facilities or material modifications thereof.
(a) Notice of an application for a siting certificate required
under the provisions of subdivisions (1), (2), (3), (4) and (5),
subsection (c), section one of this article shall be given as a
Class I legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, with the
publication area being each county in which all or a portion of the
facility is located or to be located. Such notice shall also be
published as a Class I legal advertisement in a newspaper published each weekday in Kanawha County and circulated both within and
outside of Kanawha County. If no substantial protest is received
within thirty days after the publication of notice, the Commission
may waive formal hearing on the application.
(b) The Commission shall render its decision within three
hundred days of the date of filing of an application for a siting
certificate or within four hundred days of the filing of an
application for a certificate of public convenience and necessity
pursuant to section eleven of this article if the application is
considered as an application for a siting certificate pursuant to
this section as provided in subdivision (6), subsection (c),
section one of this article. If no decision is rendered within
such time period, the Commission shall issue a siting certificate
as applied for.
(c) In deciding whether to issue, refuse to issue, or issue in
part and refuse to issue in part a siting certificate, the
Commission shall appraise and balance the interests of the public,
the general interests of the state and local economy, and the
interests of the applicant. The Commission may issue a siting
certificate only if it determines that the terms and conditions of
any public funding or any agreement relating to the abatement of
property taxes do not offend the public interest, and the
construction of the facility or material modification of the
facility will result in a substantial positive impact on the local economy and local employment. The Commission shall issue an order
that includes appropriate findings of fact and conclusions of law
that address each factor specified in this subsection. All
material terms, conditions and limitations applicable to the
construction and operation of the proposed facility or material
modification of the facility shall be specifically set forth in the
Commission order.
(d) The Commission may require an applicant for a siting
certificate to provide such documents and other information as the
Commission deems considers necessary for its consideration of the
application.
(e) If the Commission issues the siting certificate, the
Commission shall have continuing jurisdiction over the holder of
the siting certificate for the limited purposes of: (1)
Considering future requests by the holder for modifications of or
amendments to the siting certificate; (2) considering and resolving
complaints related to the holder's compliance with the material
terms and conditions of the Commission order issuing the siting
certificate, whether or not the complainant was a party to the case
in which the siting certificate was issued, which complaints shall
be filed, answered, and resolved in accordance with the
Commission's procedures for resolving formal complaints; and (3)
enforcing the material terms and conditions of a Commission order
as provided in subsection (f) of this section.
(f) If the Commission determines, in a proceeding instituted
on its own motion or on the motion of any person, that the holder
of a siting certificate has failed without reasonable justification
to comply with any of the material terms and conditions of a
Commission order issuing a siting certificate, modifying or
amending a siting certificate, or resolving a complaint related to
compliance of the holder with the material terms and conditions of
a siting certificate, the Commission may enforce the material terms
and conditions of the Commission order: (1) By requiring the
holder to show cause why it should not be required so to comply;
(2) through a proceeding seeking the imposition of a civil penalty
not to exceed five thousand dollars or criminal penalties as
provided in section four, article four of this chapter, or both
such civil and criminal penalties, and the imposition of either or
both such civil penalty and criminal penalties shall be subject to
the provisions of section eight, article four, of this chapter; (3)
by mandamus or injunction as provided in section two of this
article; or (4) prior to the completion of construction of the
proposed facility or prior to the completion of construction of a
material modification of the facility, by the suspension or
revocation of the siting certificate, including the preliminary
suspension of the siting certificate under the standards applicable
to circuit courts of this state for the issuance of preliminary
injunctions.
(g) Any person may seek to compel compliance with the material
terms and conditions of a Commission order issuing, modifying or
amending a siting certificate, or resolving a complaint related to
the holder's compliance with the material terms and conditions a
siting certificate through appropriate proceedings in any circuit
court having jurisdiction.
(h) The material terms and conditions of a Commission order
issuing, modifying or amending a siting certificate or resolving a
complaint related to the holder's compliance with the material
terms and conditions of a Commission order issuing a siting
certificate shall continue to apply to any transferee of the siting
certificate or to any transferee of all or a portion of the
ownership interest in an electric generating facility for which a
siting certificate has been issued. In either case, the transferee
or original holder of the siting certificate shall be subject to
the continuing jurisdiction of the Commission to the extent
provided in subsections (e) and (f) of this section.
(i) Any party feeling aggrieved by a final order of the
Commission under this section may petition for a review thereof by
the Supreme Court of Appeals pursuant to section one, article five
of this chapter.
(j) The Commission may prescribe such rules as may be
necessary to carry out the provisions of this section in accordance
with the provisions of section seven, article one of this chapter shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
Such rules may include and provide for an application fee to be
charged an applicant for a siting certificate, or for a
modification of, or amendment to, a siting certificate previously
issued, under the provisions of this section, which fee shall be
paid into the State Treasury and kept in a special fund designated
Public Service Commission Fund as established in subsection (a),
section six, article three of this chapter, to be used for the
purposes set forth in that subsection.
NOTE: The purpose of this bill is to establish time frames
for certain decisions by the circuit and Supreme Courts; require
that rules regarding siting certificates be subject to legislative
approval; to exempt the construction of transmission lines from
exempt wholesale generators from the requirements of §24-2-11 and
§24-2-11a.
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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