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Evening Session

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Special Calendar

Second Reading


Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system; on second reading, having been postponed until this time, was, at the request of Delegate Varner, and by unanimous consent, laid over one day.

At the request of Delegate Varner, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.


Committee Reports


Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:
S. B. 714, Expiring funds to unappropriated balance of general revenue from insurance commission fund,

S. B. 715, Expiring funds to unappropriated balance of general revenue from public service commission,

S. B. 526, Making supplementary appropriation of public moneys from unappropriated surplus balance in general revenue to division of rehabilitation services,

And,

S. B. 713, Expiring funds to unappropriated balance of general revenue from board of risk and insurance management, premium tax savings fund,

And reports the same back with the recommendation that they each do pass.

At the respective requests of Delegate Varner, and by unanimous consent, the bills (S. B. 714, S. B. 715, S. B. 526 and S. B. 713) were taken up for immediate consideration, read a first time and then ordered to second reading.

On motions for leave, bills were introduced (Originating in the Committee on Finance and reported with the recommendation that they each do pass), which were read by their titles, as follows:

By Delegates Michael, Foster, Warner, Boggs and Susman:

H. B. 4764 - "A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2004, to the public service commission- gas pipeline division, fund 8624, fiscal year 2004, organization 0926, all supplementing and amending the appropriation for the fiscal year ending June 30, 2004,"

And,

By Delegates Michael, Proudfoot and Frederick:

H. B. 4765
- "A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2004, to the public service commission, fund 8623, fiscal year 2004, organization 0926, all supplementing and amending the appropriation for the fiscal year ending June 30, 2004."

At the respective requests of Delegate Varner, and by unanimous consent, the bills (H. B. 4764 and H. B. 4765) were taken up for immediate consideration, read a first time and then ordered to second reading.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 271, Relating to racial profiling data collection,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.

In the absence of objection, reference of the bill (Com. Sub. for S. B. 271) to the Committee on Finance was abrogated.

On motion for leave, a bill was introduced (Originating in the Committee on the Judiciary and reported by unanimous vote of the Committee, with the recommendation that it do pass), which was read by its title, as follows:

By Delegates Brown, Webb, Armstead, Webster, Palumbo, Calvert and Amores:

H. B. 4763
- "A Bill extending the time for the city council of Dunbar to meet as a levying body for the purpose of presenting to the voters of the city an election to continue an additional city levy to maintain the present salaries of all employees of the paid fire and paid police departments of the City of Dunbar and to repair and service existing police department and fire fighting equipment and to purchase additional fire fighting and police equipment where necessary from between the seventh and twenty-eighth days of March and the third Tuesday in April until the thirty- first day of May, two thousand four."

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 596, Relating to powers and duties of board of directors of state board of risk and insurance management,

And reports the same back with the recommendation that it do pass.

At the respective requests of Delegate Varner, and by unanimous consent, the bill (Com. Sub. for S. B. 596) was taken up for immediate consideration, read a first time and then ordered to second reading.

Chairman Kuhn, from the Committee on Veterans Affairs and Homeland Security, submitted the following report, which was received:

Your Committee on Veterans Affairs and Homeland Security has had under consideration:

S. B. 410, Providing educational opportunities to certain children of deceased military; removing in-state requirement,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.

At the respective requests of Delegate Varner, and by unanimous consent, the bill (S. B. 410) was taken up for immediate consideration, read a first time, ordered to second reading and then, in accordance with the former direction of the Speaker, referred to the Committee on Finance.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:

H. B. 4000, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution,

And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. B. 4000 - "A Bill making appropriations of public money out of the treasury in accordance with section fifty-one, article VI of the constitution,"

With the recommendation that the committee substitute do pass.

At the respective requests of Delegate Varner, and by unanimous consent, the bill (Com. Sub. for H. B. 4000) was taken up for immediate consideration, read a first time and then ordered to second reading.

On motion for leave, a bill was introduced (Originating in the Committee on Government Organization and reported with the recommendation that it do pass), which was read by its title, as follows:
By Delegates Beane, Ennis, Iaquinta, Perdue, Yeager, Frich and Walters:


H. B. 4766 - "A Bill to amend and reenact §9-7-1 and §9-7-2 of the code of West Virginia, 1931, as amended; to amend and reenact §16-5P-3 and §16-5P-6 of said code; and to amend said code by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U- 5, §16-5U-6, §16-5U-7 and §16-5U-8, all relating to the oversight of senior centers; providing that the medicaid fraud unit of the department of health and human resources may investigate; requiring the commissioner of the bureau of senior services to report violations to the governor; authorizing secretary of the department of health and human resources to investigate and audit senior centers; establishing that senior centers are subject to governmental ethics act, open governmental meetings act and audit requirements; and establishing criminal penalties."

At the respective requests of Delegate Varner, and by unanimous consent, the bill (H. B. 4766) was taken up for immediate consideration, read a first time and then ordered to second reading.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 22, Requiring participation in motor vehicle alcohol test and lock program for repeat offenders,
Com. Sub. for S. B. 28, Exempting certain personal property from levy, forced sale, attachment or execution,

Com. Sub. for S. B. 31, Providing person not guilty of trespassing for hunting with dogs on lands of another,
Com. Sub. for S. B. 50, Relating to waste tire remediation; liability,
Com. Sub. for S. B. 71, Relating to verifying legal employment status of workers employed in state,
Com. Sub. for S. B. 89, Relating to beneficial use of water treatment plant sludge,
Com. Sub. for S. B. 119, Enhancing criminal penalties for obtaining money, property and services by false pretenses from persons over certain age,
Com. Sub. for S. B. 315, Creating mental hygiene pilot program in certain counties or circuits,
S. B. 317, Increasing parolee supervision fee,
S. B. 402, Relating to authority of board of risk and insurance management to promulgate certain legislative rules,

S. B. 428, Defining "transacting insurance",
Com. Sub. for S. B. 447, Relating to powers and duties of municipal courts to collect certain moneys,
S. B. 510, Relating to commission on uniform state laws,
S. B. 529, Repealing section of code relating to working prisoners by county courts,
S. B. 532, Repealing section of code relating to inspection of jails,
Com. Sub. for S. B. 554, Continuing guardianship or conservatorship of deceased protected persons,
S. B. 569, Clarifying and preserving irrevocability of certain trusts,
S. B. 573, Providing procedure for economic development authority to address problems of state minorities,
S. B. 579, Relating to sex offender registration,
Com. Sub. for S. B. 629, Creating Small Estate Probate Relief Act of 2004,
S. B. 663, Prohibiting certain long-term care and assisted living facilities from soliciting residents for money or assets,
S. B. 688, Relating to wages election official can receive and not be considered for unemployment compensation,

And,
S. B. 731, Relating to promulgation of rules by department of administration for compliance standards for state leased property,

And reports the same back without recommendation as to their passage.

At the respective requests of Delegate Varner, and by unanimous consent, the bills (Com. Sub. for S. B. 22, Com. Sub. for S. B. 28, Com. Sub. for S. B. 31, Com. Sub. for S. B. 50, Com. Sub. for S. B. 71, Com. Sub. for S. B. 89, Com. Sub. for S. B. 119, Com. Sub. for S. B. 315, S. B. 317, S. B. 402, S. B. 428, Com. Sub. for S. B. 447, S. B. 510, S. B. 529, S. B. 532, Com. Sub. for S. B. 554, S. B. 569, S. B 573, S. B. 579, Com. Sub. for S. B. 629, S. B. 663, S. B. 688 and S. B. 731) were taken up for immediate consideration, read a first time, ordered to second reading and then recommitted to the Committee on the Judiciary.
Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:
S. B. 148, Creating Tax Amnesty Program of 2004,

And,

Com. Sub. for S. B. 139, Creating Tourism Development Act,

And reports the same back, with amendment, with the recommendation that they each do pass, as amended.

Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 11th day of March, 2004, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:

(Com. Sub. for S. B. 52), Allowing motorcycle registration plates to be fastened in vertical position.

(S. B. 268), Continuing division of motor vehicles.

(S. B. 269), Continuing division of purchasing within department of administration.

(S. B. 324), Continuing division of personnel.
(Com. Sub. for S. B. 500), Relating to fees for agents selling hunting and fishing licenses.

(H. B. 4108), Authorizing sun screening devices that exceed statutory limits to be used in law-enforcement K-9 and other emergency vehicles that haul animals,

And,

(Com. Sub. for H. B. 4273), Changing the authority to appoint guardians of minors from the county commission to the family court.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
S. B. 566, Establishing Unborn Victims of Violence Act,

And reports the same back without recommendation as to its passage.

At the respective requests of Delegate Varner, and by unanimous consent, the bill was taken up for immediate consideration, read a second time, and then, at the further request of the same Gentleman, and by unanimous consent, the bill was ordered to third reading and the rule was suspended to permit the offering and consideration of amendments on that reading.

Subsequently,

At the further request of Delegate Varner, and by unanimous consent, the bill (S. B. 566) was then recommitted to the Committee on the Judiciary.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4104, Creating the felony crime of scanning device or reencoder fraud.

On motion of Delegate Varner, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-56. Scanning device or reencoder fraud; felony; definitions; and penalties.


(a) As used in this section, the term:

(1) 'Authorized user' means the person to whom a payment card is issued or any other person acting with the permission of the person to whom the card is issued;

(2) 'Merchant' means an owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee or independent contractor of the owner or operator. A 'merchant' also means a person who receives from an authorized user of a payment card, or someone the person believes to be an authorized user, a payment card or information from a payment card, or what the person believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing or receiving goods, services, money or anything else of value from the person;

(3) 'Payment card' means a credit card, charge card, debit card, hotel key card, stored value card or any other card that is issued to an authorized card user and that allows the user to obtain, purchase or receive goods, services, money or anything else of value from a merchant;

(4) 'Reencoder' means an electronic device that places encoded information from the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment card; and

(5) 'Scanning device' means a scanner, reader or any other electronic device that is used to access, read, scan, obtain, memorize or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card;

(b) Any person who uses a scanning device to access, read, obtain, memorize or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card without the permission of the authorized user of the payment card and with the intent to defraud the authorized user, the issuer of the authorized user's payment card or a merchant is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two thousand five hundred dollars or confined in a county or regional jail for not more than one year, or both.

(c) Any person who uses a reencoder to place information encoded on the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different card without the permission of the authorized user of the card from which the information is being reencoded and with the intent to defraud the authorized user, the issuer of the authorized user's payment card or a merchant is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two thousand five hundred dollars or confined in a county or regional jail not more than one year, or both.

(d) Notwithstanding the provisions of subsections (b) and (c) of this section, any person who is convicted of the provisions of subsection (b) or (c) of this section who has previously been convicted of a violation of either subsection shall be guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility for not less than one nor more than three years or fined not more than five thousand dollars, or both."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4104 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-56, relating to creating the crimes of scanning device and reencoder fraud; providing definitions; and establishing criminal penalties therefor."

On motion of Delegate Varner, the House of Delegates concurred in the Senate amendments.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 514), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4104) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4193, Authorizing the Department of Environmental Protection to promulgate legislative rules.

On motion of Delegate Varner, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page four, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL PROTECTION TO PROMULGATE LEGISLATIVE RULES.
§64-3-1. Department of environmental protection.

(a) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (Nox budget trading program as a means of control and reduction of nitrogen oxides from non-electric generating units, 45 CSR 1), is authorized.

(b) The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (emission standards for hazardous air pollutants pursuant to 40 CFR Part 61, 45 CSR 15), is authorized.

(c) The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (standards of performance for new stationary sources pursuant to 40 CFR Part 60, 45 CSR 16), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management' the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(d) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (to prevent and control air pollution from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(e) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (emission standards for hazardous air pollutants for source categories pursuant to 40 CFR Part 63, 45 CSR 34), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(f) The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (requirements for determining conformity of transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. or the federal transit laws applicable air quality implementation plans (transportation conformity), 45 CSR 36), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(g) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section four, article three, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the sixteenth day of January, two thousand four, relating to the department of environmental protection (surface mining reclamation, 38 CSR 2), is authorized.

(h) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five, article fifteen, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the second day of December, two thousand three, relating to the department of environmental protection (solid waste management, 33 CSR 1), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(i) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section one, article eighteen, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the second day of December, two thousand three, relating to the department of environmental protection (hazardous waste management, 33 CSR 20), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(j) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section four, article eleven, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the twentieth day of November, two thousand three, relating to the department of environmental protection (West Virginia NPDES rule for coal mining facilities, 47 CSR 30), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.
§64-3-2. Environmental quality board.

The legislative rule filed in the state register on the first day of August, two thousand three, under the authority of section four, article three, chapter twenty-two-b of this code, relating to the environmental quality board (requirements governing water quality standards, 46 CSR 1), is not authorized.

(1) The legislative rule filed in the state register on the twenty-fifth day of June, two thousand three, authorized under the authority of section four, article three, chapter twenty-two-b of this code, authorized by the Legislature during the regular session of the Legislature in two thousand three, relating to the environmental quality board (requirements governing water quality standards, 46 CSR 1), is reauthorized with the following amendments:

On page seven, section 6.2.d., after the words '(requirements for Category A waters.)', by striking out the words 'The manganese human health criteria shall not apply where the discharge point of the manganese is located more than five miles upstream from a known drinking water source.' and inserting the following:

'The manganese human health criterion shall only apply within the five-mile zone immediately upstream above a known public or private water supply used for human consumption.';

On page ten, section 7.2.a.2., after the words '(to its headwaters.)' by striking out the words 'Until September 1, 2004, the one-half mile zone described in this section shall not apply to the Ohio River main channel (between Brown's Island and the left descending bank) between river mile points 61.0 and 63.5.' and inserting in lieu thereof the words 'Until September 1, 2010, or until action by the Environmental Quality Board to revise this provision, whichever comes first, the one-half (½) mile zone described in this section shall not apply to the Ohio River main channel (between Brown's Island and the left descending bank) between river mile points 61.0 and 63.5 for the Category A criterion for iron as set forth in §8 herein. Weirton Steel Corporation shall conduct monthly monitoring of the treated water at its drinking water plant for iron and submit the results of such monitoring to the West Virginia Bureau for Public Health and the Office of Water Resources of the West Virginia Department of Environmental Protection. In addition, Weirton Steel Corporation shall submit a written report regarding the status of its drinking water plant and the issues pertaining thereto to the Environmental Quality Board on or before March 1, 2007.';

On pages twelve and thirteen, section 7.2.d.16.2. after the words 'the following instream criteria:' by striking the remainder of 7.2.d.16.2. and inserting in lieu thereof, the following:

'Lead 14 ug/l, Daily Maximum, Temperature 100 degree F (monitored per Footnote 12 of the permit); Iron 4.0 mg/l, monthly average and 8.0 mg/l Daily Maximum (monitored per Footnote 12 of the permit). Weirton Steel Corporation shall continue to submit to the Office of Water Resources of the West Virginia Department of Environmental Protection, on an annual basis summary reports on the water quality of the discharge from Outlet 004 and the efforts made by Weirton Steel Corporation during the previous year to improve the quality of the discharge. These exceptions shall be in effect until action by the Environmental Quality Board to revise the exceptions or until July 1, 2007, whichever comes first.';

On page thirteen, section 7.2.d.19. By adding a new paragraph designated 7.2.d.19.3 to read as follows:

7.2.d.19.3. Except that in Ward Hollow of Davis Creek, the following site-specific numeric criterion for chloride shall apply for Category A and Category B1 (chronic aquatic life protection):310,000 ug/L.;

On page 30, APPENDIX E, TABLE 1, column one, by striking out the words 'The concentration of un-ionized ammonia (NH3) shall not exceed 50 ug/l.; and

On page 30, APPENDIX E, TABLE 1, by striking the all the provisions of 8.2. and on page 31, by renumbering 8.2.1 as 8.2..

(2) In addition to the forgoing amendments to the rule the environmental quality board shall, in cooperation with the regulated community and the department of environmental protection, propose for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, an emergency and legislative rule on or before the first day of October, two thousand four, to revise the aquatic life aluminum criteria."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4193 - "A Bill to amend and reenact article 3, chapter 64 of the code of West Virginia, 1931, as amended, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee and as amended by the Legislature; disapproving certain legislative rules presented to the Legislature for authorization; authorizing the department of environmental protection to promulgate a legislative rule relating to the Nox budget trading program as a means of control and reduction of nitrogen oxides from nonelectric generating units; authorizing the department of environmental protection to promulgate a legislative rule relating to emission standards for hazardous air pollutants pursuant to 40 CFR Part 61; authorizing the department of environmental protection to promulgate a legislative rule relating to standards of performance for new stationary sources pursuant to 40 CFR Part 60; authorizing the department of environmental protection to promulgate a legislative rule relating to the prevention and control of air pollution from hazardous waste treatment, storage or disposal facilities; authorizing the department of environmental protection to promulgate a legislative rule relating to emission standards for hazardous air pollutants for source categories pursuant to 40 CFR Part 63; authorizing the department of environmental protection to promulgate a legislative rule relating to requirements for determining conformity of transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. or the federal transit laws applicable air quality implementation plans (transportation conformity); authorizing the department of environmental protection to promulgate a legislative rule relating to surface mining reclamation; authorizing the department of environmental protection to promulgate a legislative rule relating to solid waste management; authorizing the department of environmental protection to promulgate a legislative rule relating to hazardous waste management; authorizing the department of environmental protection to promulgate a legislative rule relating to the West Virginia NPDES rule for coal mining facilities; authorizing the environmental quality board to promulgate a legislative rule relating to requirements governing water quality standards; and authorizing the environmental quality board to promulgate emergency and legislative rules on or before the first day of October, two thousand four to revise the aquatic life aluminum criteria."

On motion of Delegate Varner, the House of Delegates concurred in the Senate amendments with further amendment, as follows:

On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL PROTECTION TO PROMULGATE LEGISLATIVE RULES.
§64-3-1. Department of environmental protection.

(a) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (Nox budget trading program as a means of control and reduction of nitrogen oxides from non-electric generating units, 45 CSR 1), is authorized.

(b) The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (emission standards for hazardous air pollutants pursuant to 40 CFR Part 61, 45 CSR 15), is authorized.

(c) The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (standards of performance for new stationary sources pursuant to 40 CFR Part 60, 45 CSR 16), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management' the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(d) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (to prevent and control air pollution from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.
(e) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (emission standards for hazardous air pollutants for source categories pursuant to 40 CFR Part 63, 45 CSR 34), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(f) The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section four, article five, chapter twenty-two of this code, relating to the department of environmental protection (requirements for determining conformity of transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. or the federal transit laws applicable to air quality implementation plans (transportation conformity), 45 CSR 36), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(g) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section four, article three, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the sixteenth day of January, two thousand four, relating to the department of environmental protection (surface mining reclamation, 38 CSR 2), is authorized.

(h) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five, article fifteen, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the second day of December, two thousand three, relating to the department of environmental protection (solid waste management, 33 CSR 1), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(i) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section one, article eighteen, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the second day of December, two thousand three, relating to the department of environmental protection (hazardous waste management, 33 CSR 20), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.

(j) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section four, article eleven, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule- making review committee and refiled in the state register on the twentieth day of November, two thousand three, relating to the department of environmental protection (West Virginia NPDES rule for coal mining facilities, 47 CSR 30), is authorized with the following amendment:

Wherever the rule has been amended to insert the term 'Division of Water and Waste Management', the existing language of the rule prior to the amendment denoting a change in the name of the agency of reference shall be retained.
§64-3-2. Environmental quality board.

The legislative rule filed in the state register on the first day of August, two thousand three, under the authority of section four, article three, chapter twenty-two-b of this code, relating to the environmental quality board (requirements governing water quality standards, 46 CSR 1), is not authorized.

(1) The legislative rule filed in the state register on the fourteenth day of April, two thousand three, and effective the twenty-fifth day of June, two thousand three, authorized under the authority of section four, article three, chapter twenty-two-b of this code, authorized by the Legislature during the regular session of the Legislature in two thousand three, relating to the environmental quality board (requirements governing water quality standards, 46 CSR 1), is reauthorized with the following amendments:

On page seven, section 6.2.d., after the words '(requirements for Category A waters.)', by striking out the words 'The manganese human health criteria shall not apply where the discharge point of the manganese is located more than five miles upstream from a known drinking water source.' and inserting the following:

'The manganese human health criterion shall only apply within the five-mile zone immediately upstream above a known public or private water supply used for human consumption.';

On page ten, section 7.2.a.2., after the words '(to its headwaters.)' by striking out the words 'Until September 1, 2004, the one-half mile zone described in this section shall not apply to the Ohio River main channel (between Brown's Island and the left descending bank) between river mile points 61.0 and 63.5.' and inserting in lieu thereof the words 'Until September 1, 2010, or until action by the Environmental Quality Board to revise this provision, whichever comes first, the one-half (½) mile zone described in this section shall not apply to the Ohio River main channel (between Brown's Island and the left descending bank) between river mile points 61.0 and 63.5 for the Category A criterion for iron as set forth in §8 herein. Weirton Steel Corporation shall conduct monthly monitoring of the treated water at its drinking water plant for iron and submit the results of such monitoring to the West Virginia Bureau for Public Health and the Office of Water Resources of the West Virginia Department of Environmental Protection. In addition, Weirton Steel Corporation shall submit a written report regarding the status of its drinking water plant and the issues pertaining thereto to the Environmental Quality Board on or before March 1, 2007.';

On pages twelve and thirteen, section 7.2.d.16.2. after the words 'the following instream criteria:' by striking the remainder of 7.2.d.16.2. and inserting in lieu thereof, the following:

'Lead 14 ug/l, Daily Maximum, Temperature 100 degree F (monitored per Footnote 12 of the permit); Iron 4.0 mg/l, monthly average and 8.0 mg/l Daily Maximum (monitored per Footnote 12 of the permit). Weirton Steel Corporation shall continue to submit to the Office of Water Resources of the West Virginia Department of Environmental Protection, on an annual basis summary reports on the water quality of the discharge from Outlet 004 and the efforts made by Weirton Steel Corporation during the previous year to improve the quality of the discharge. These exceptions shall be in effect until action by the Environmental Quality Board to revise the exceptions or until July 1, 2007, whichever comes first.';

On page thirteen, section 7.2.d.19. By adding a new paragraph designated 7.2.d.19.3 to read as follows:

7.2.d.19.3. Except that in Ward Hollow of Davis Creek, the following site-specific numeric criterion for chloride shall apply for Category A and Category B1 (chronic aquatic life protection):310,000 ug/L.;

On page 30, APPENDIX E, TABLE 1, column one, by striking out the words 'The concentration of un-ionized ammonia (NH3) shall not exceed 50 ug/l.; and

On page 30, APPENDIX E, TABLE 1, by striking the all the provisions of 8.2. and on page 31, by renumbering 8.2.1 as 8.2..

(2) In addition to the forgoing amendments to the rule the environmental quality board shall, in cooperation with the regulated community and the department of environmental protection, propose for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, an emergency and legislative rule on or before the first day of October, two thousand four, to revise the aquatic life aluminum criteria."
The bill, as amended by the Senate, and as further amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 515), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4193) passed.

Delegate Varner moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 516), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4193) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4649, Providing for greater efforts for instate placement of children in the custody of the Department of Health and Human Services.

On motion of Delegate Varner, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:

"That §49-5D-2, §49-5D-3 and §49-5D-3a of the code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-2. Multidisciplinary investigative teams; establishment; procedures; coordination between agencies.


(a) The prosecuting attorney shall establish a multidisciplinary investigative team in each county. The multidisciplinary team shall be headed and directed by the prosecuting attorney and shall include as permanent members the prosecuting attorney or his or her designee, a local child protective services caseworker from the department of health and human resources, and a local law-enforcement officer employed by a law-enforcement agency in the county and, where appropriate to the particular case under consideration and available, a child advocacy center representative, and a representative from the licensed domestic violence program serving the county. The department of health and human resources and any local law-enforcement agency or agencies selected by the prosecuting attorney shall appoint their representatives to the team by submitting a written designation of the team to the prosecuting attorney of each county within thirty days of the prosecutor's request that the appointment be made. Within fifteen days of the appointment, the prosecuting attorney shall notify the chief judge of each circuit within which the county is situated of the names of the representatives so appointed. Any other person or any other appointee of an agency who may contribute to the team's efforts to assist a minor child as may be determined by the permanent members of the team may also be appointed as a member of the team by the prosecutor with notification to the chief judge.

(b) Any permanent member of the multidisciplinary investigative team shall refer all cases of accidental death of any child reported to their agency and all cases when a child dies while in the custody of the state for investigation and review by the team. The multidisciplinary investigative team shall meet at regular intervals at least once every calendar month.

(c) The investigative team shall be responsible for coordinating or cooperating in the initial and ongoing investigation of all civil and criminal allegations pertinent to cases involving child sexual assault, child sexual abuse, child abuse and neglect, and shall make a recommendation to the county prosecuting attorney as to the initiation or commencement of a civil petition and/or criminal prosecution.

(d) State, county and local agencies shall provide the multidisciplinary investigative team with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remains confidential. For purposes of this section, the term 'confidential' shall be construed in accordance with the provisions of section one, article seven of this chapter.
§49-5D-3. Multidisciplinary treatment planning process.

(a)(1) On or before the first day of January, one thousand nine hundred ninety-five, a A multidisciplinary treatment planning process shall be established within each county of the state, either separately or in conjunction with a contiguous county by the secretary of the department with advice and assistance from the prosecutor's advisory council as set forth in section four, article four, chapter seven of this code.

(2) Treatment teams shall assess, plan and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families when a judicial proceeding has been initiated involving the child or children for juveniles and their families involved in status offense or delinquency proceedings when, in a status offense proceeding, the court refers the juvenile for services pursuant to sections eleven and eleven-a, article five of this chapter and when, in a delinquency proceeding, the court is considering placing the juvenile in the department's custody or placing the juvenile out-of-home at the department's expense pursuant to the provisions of section thirteen of said article. In any such status offense or delinquency case, the juvenile probation officer shall notify the local office of the department of health and human resources and the division of juvenile services at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child: Provided, That such notice is not required in cases where the child is already in state custody or there exist exigent circumstances which justify taking the child immediately into custody without a judicial proceeding. In developing an individualized service plan for a child, the team shall utilize a uniform comprehensive assessment of the child. The department shall adopt a standard uniform comprehensive assessment instrument or protocol to be used by treatment teams.

(3) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement at facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.

(b) Each treatment team shall be convened and directed by the child's or family's case manager. The treatment team shall consist of the child's custodial parent or parents, guardian or guardians, other immediate family members, the attorney or attorneys representing the child, the parent or parents of the child, the child's attorney, the guardian ad litem, if any, the prosecuting attorney or his or her designee and where appropriate to the particular case under consideration and available, a court-appointed special advocate, an appropriate school official and any other person or an agency representative who may assist in providing recommendations for the particular needs of the child and family. The child may participate in multidisciplinary treatment team meetings if such is deemed appropriate by the multidisciplinary treatment team. For purposes of delinquency proceedings, the juvenile probation officer shall be a member of the treatment team.

(c) The treatment team shall coordinate its activities and membership with local family resource networks and coordinate with other local and regional child and family service planning committees to assure the efficient planning and delivery of child and family services on a local and regional level.

(d) State, county and local agencies shall provide the multidisciplinary treatment teams with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remain confidential. For purposes of this section, the term 'confidential' shall be construed in accordance with the provisions of section one, article seven of this chapter.
§49-5D-3a. Recommendation of team to the court; hearing requirement; required findings.


(a) In any case in which a multidisciplinary treatment team develops an individualized service plan for a child pursuant to the provisions of section three of this article, the court shall review the proposed service plan to determine if implementation of the plan is in the child's best interests. If the multidisciplinary team cannot agree on a plan or if the court determines not to adopt the team's recommendations, it shall, upon motion or sua sponte, schedule and hold within ten days of such determination, and prior to the entry of an order placing the child in the custody of the department or in an out-of-home setting, a hearing to consider evidence from the team as to its rationale for the proposed service plan. If, after a hearing held pursuant to the provisions of this section, the court does not adopt the teams's recommended service plan, it shall make specific written findings as to why the team's recommended service plan was not adopted.

(b) In any case in which the court decides to order the child placed in an out-of-state facility or program it shall set forth in the order directing the placement the reasons why the child was not placed in an in-state facility or program."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 4649 - "A Bill to amend and reenact §49-5D-2, §49-5D-3 and §49-5D- 3a of the code of West Virginia, 1931, as amended, all relating to child welfare; providing for a child advocacy center participation in multidisciplinary investigative teams; providing for uniform comprehensive assessments of children; preference to instate placement; including in team, child, the juvenile's attorney, appropriate school official, court-appointed special advocate when available, and a representative from the licensed domestic violence program serving the county, when appropriate and available; requiring team preference of in-state placement; requiring court preference of instate placement; and requiring that reasons for out-of-state placement be in order."

On motion of Delegate Varner, the House of Delegates concurred in the Senate amendments.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 517), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4649) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.


Miscellaneous Business


Delegate Beane asked and obtained unanimous consent that the remarks of Delegate Trump regarding the Speaker and the work of the House of Delegates be printed in the Appendix to the Journal.

At 7:32 p.m., on motion of Delegate Varner, the House of Delegates adjourned until 10:00 a.m., Friday, March 12, 2004.