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Introduced Version Senate Bill 723 History

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sb723 intr
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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