sdj-13th day

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2006
THIRTEENTH DAY
____________

Charleston, W. Va., Monday, January 23, 2006

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Dr. Earl Hissom III, Hissom Holiness Tabernacle, Charleston, West Virginia.
Pending the reading of the Journal of Friday, January 20, 2006,
On motion of Senator Love, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Clerk presented the following communication from the Legislative Oversight Committee on the Regional Jail and Correctional Facility Authority, submitting its annual report due the Legislature in compliance with the statute:
WEST VIRGINIA LEGISLATURE
LEGISLATIVE OVERSIGHT COMMITTEE
ON THE REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY
CHARLESTON

January 20, 2006

West Virginia Legislature
Charleston, West Virginia
Ladies and Gentlemen:
Pursuant to West Virginia Code §31-20-26, the Legislative Oversight Committee on the Regional Jail and Correctional Facility Authority makes the following report to the Legislature during its 2006 Regular Session.
The Committee met eight times during the 2005 Interim Period. During the 2005 Interim Period, the Committee received reports from:
James W. Spears, Secretary, Department of Military Affairs and Public Safety;
The Executive Director of the Regional Jail and Correctional Facility Authority;
The Commissioner of the Division of Corrections; and
The Director of the Division of Juvenile Services.
The Committee also received presentations from:
Jo-Claire Datson, Program Director, Retired and Senior Volunteer Program, Council of Southern Mountains;
Bob Bailey, Commissioner and President of the Cabell County Commission;
Debra McKinney, a spouse of an inmate in the custody of the Division of Corrections;
Tina A. Goodwin, Criminal Justice Specialist/Legislative Analyst, Regional Jail and Correctional Facility Authority;
John King, Chief of Operations, Regional Jail and Correctional Facility Authority;
Elaine Harris, International Representative, Communications Workers of America;
Jim Young, President of the West Virginia Prosecuting Attorneys Association;
George Castelle, Chief Public Defender of the Kanawha County Public Defenders Office; and
Benita Murphy, Chairperson of the West Virginia Parole Board.
Major topics of Committee consideration and discussion during the Interim Period included:
1.The need for additional funding for the St. Marys Correctional Center;
2.The crowding problem in regional jails and correctional facilities;
3.The transfer of state-sentenced inmates being housed in regional jails to Division of Corrections' facilities;
4.The completion of the construction of the regional jail system and the progress of planning and construction of certain juvenile detention facilities and correctional facilities;
5.Concerns regarding salaries and staffing;
6.The operation of the Gene Spadaro Juvenile Center;
7.The need for additional capacity to house inmates sentenced to the custody of the Division of Corrections;
8.The success of community corrections programs and the need for statewide community corrections programs and funding for the programs; and
9.Alternatives for reducing inmate populations.
During 2005, several of the Committee's members visited the Gene Spadaro Juvenile Center.
The Committee met jointly with Subcommittee C of the Joint Standing Committee on the Judiciary twice and with Subcommittee A of the Joint Standing Committee on Finance once.
During the 2005 Interim Period, the Committee was informed of the following information of special significance:
1.Inmate populations in regional jails increased from 3,558 on February 4, 2005, to 3,810 on January 9, 2006;
2.The number of state-sentenced inmates being housed in regional jails increased from 1,106 to 1,381 during this period; and
3.The daily average inmate population under the supervision of the Division of Corrections increased 261, from 5,108 on February 4, 2005, to 5,369 on January 9, 2006.
Inmates Housed in Regional Jails
Number ofNumber of
State-State-
InmateInmateSentencedSentenced
RegionalCount asCount asInmates asInmates as
Jail of 2/4/05of 1/9/06of 2/4/05of 1/9/06
Central
(Flatwoods)283245105101
Eastern
(Martinsburg)41242411590
North Central
(West Union)547498186142
Northern
(Moundsville)282301122136
Potomac Highlands
(Augusta)246242143151
South Central
(Charleston)483443138150
Southern
(Beckley)505469138113
Southwestern
(Holden)357366137122
Tygart Valley
(Belington)327205
Western
(Barboursville) 443 495 128 171
Totals3,5583,8101,2121,381
The Committee recommended to the Regional Jail and Correctional Facility Authority and the Division of Corrections that they take the necessary steps to provide funding to complete the construction of the Mt. Olive Correctional Complex, but only to the extent that it will not interfere with the completion of the Kenneth "Honey" Rubenstein Juvenile Center.
The Committee recommends for introduction and passage during the 2006 legislative session bills:
1.Adding to the crimes committed by an offender for which the preparation of a parole hearing notification form and notification of release on parole is required;
2.Limiting the eligibility of a person for parole if the person has violated the terms and conditions of probation or home incarceration;
3.Limiting the payment rate to medical service providers for medical services provided to inmates outside Division of Corrections facilities to the Medicaid rate;
4.Authorizing the Executive Director of the West Virginia Regional Jail and Correctional Facility Authority to establish a work program as part of a jobs program, where an inmate would receive training for re-entry into society and receive a full salary; and
5.Allowing the Executive Director of the Regional Jail and Correctional Facility Authority to pay relocation assistance to correctional officers that are transferred to different regional jails.
Respectfully submitted,
Shirley Love,
Senate,
David G. Perry,
House of Delegates,
Cochairs.
Which communication was received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2006, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4049--A Bill to repeal §18B-14-9 of the Code of West Virginia, 1931, as amended; to repeal §18C-7-9 of said code; to repeal §18C-8-1, §18C-8-2 and §18C-8-3 of said code; to amend and reenact §18B-10-1 of said code; to amend and reenact §18C-1-1, §18C-1-3 and §18C-1-4 of said code; to amend said code by adding thereto a new section, designated §18C-1-5; to amend and reenact §18C-5-1, §18C-5-2, §18C-5-3, §18C-5-4, §18C-5-5 and §18C-5-6 of said code; and to amend and reenact §18C-7-2, §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6 and §18C-7-7 of said code, all relating to student financial aid programs; need-based and merit-based student financial aid programs; PROMISE Scholarship Program; Higher Education Grant Program; abolishing the PROMISE Scholarship Board of Control; creating the Higher Education Student Financial Aid Coordinating Board; membership of said coordinating board; authorizing member expense reimbursement; powers, duties and responsibilities of said coordinating board; transferring powers, duties and responsibilities of said PROMISE scholarship board to said coordinating board; expanding certain legislative findings; establishing certain legislative intent; requiring coordination and consultation among entities for student financial aid administration; creating the "Higher Education Grand Fund" special revenue fund; establishing legislative intent regarding increased legislative appropriation levels to the Higher Education Grant Fund and the PROMISE Scholarship Fund; expanding eligibility for PROMISE scholarship awards to certain students attending high school outside the state; modifying PROMISE scholarship eligibility requirements; limiting tuition and fee increase levels for certain students; modifying the calculation for determining student financial aid award levels for certain higher education grant recipients; defining terms and clarifying the definitions of certain terms; requiring promulgation of legislative rule and emergency rule; making technical corrections; and repealing obsolete provisions.
Referred to the Committee on Education; and then to the Committee on Finance.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senator Sharpe:
Senate Bill No. 235--A Bill to amend and reenact §60-8-3, §60-8-6 and §60-8-18 of the Code of West Virginia, 1931, as amended, all relating to the sale of wine; imposing an annual 25- dollar fee for licenses allowing wine to be shipped to adult residents from wineries and retailers who are licensed in their state of domicile; restrictions on shipment; collection and remittance of taxes; requiring adult signature; and allowing the commissioner to revoke or suspend the license of a licensee, place licensee on probation and impose a monetary penalty on licensee for violation of said article or any rule promulgated or order issued by the commissioner.
Referred to the Committee on Finance.
By Senators Prezioso, Barnes, Unger, Jenkins, Oliverio, Dempsey and Love:
Senate Bill No. 236--A Bill to amend and reenact §49-1-3 of the Code of West Virginia, 1931, as amended, relating to the expansion of the definition of "imminent danger to the physical well-being of the child" with regard to child abuse and neglect to include alcohol and substance abuse on the part of the parent or parents.
Referred to the Committee on Health and Human Resources.
By Senators Hunter and Oliverio:
Senate Bill No. 237--A Bill to amend and reenact §8-33-3 of the Code of West Virginia, 1931, as amended, relating to allowing persons holding public office or employment on a part-time basis to serve on county building commissions.
Referred to the Committee on Government Organization.
By Senators Prezioso, Unger, Hunter, Dempsey and Love:
Senate Bill No. 238--A Bill to amend and reenact §11-21-12 of the Code of West Virginia, 1931, as amended, relating to exempting the retirement benefits of certain annuitants under the State Teachers Retirement System from state income tax.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Harrison, McCabe, Hunter and Oliverio:
Senate Bill No. 239--A Bill to amend and reenact §11-21-10 of the Code of West Virginia, 1931, as amended, relating to personal income tax; and changing the low-income exclusion.
Referred to the Committee on Finance.
By Senator Harrison:
Senate Bill No. 240--A Bill to amend and reenact §11-14C-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §11-15-3a of said code, all relating to reducing certain taxes; reducing the flat rate of the excise tax on all gasoline and special fuel sold in this state before the tax is scheduled to be reduced from the current twenty and one-half cents to fifteen and one-half cents; providing for the elimination of consumers sales and service tax on food; and naming this legislation the "Make West Virginia Competitive Tax Relief Act".
Referred to the Committee on Finance.
By Senator Tomblin (Mr. President):
Senate Bill No. 241--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9k, relating generally to exempting commissions paid to telecommunications brokers from consumers sales and service tax; and defining certain terms.
Referred to the Committee on Finance.
By Senators Minard, Jenkins and McCabe:
Senate Bill No. 242--A Bill to amend and reenact §31A-4-3 of the Code of West Virginia, 1931, as amended, relating to the authority of a state banking institution to issue more than one class of stock.
Referred to the Committee on Banking and Insurance.
By Senators Minard, Jenkins and McCabe:
Senate Bill No. 243--A Bill to amend and reenact §31A-8-5 of the Code of West Virginia, 1931, as amended, relating to allowing banks to own up to five percent of their own stock.
Referred to the Committee on Banking and Insurance.
By Senators Minard, Jenkins and McCabe:
Senate Bill No. 244--A Bill to amend and reenact §31A-4-13 of the Code of West Virginia, 1931, as amended, relating to powers of state banking institutions.
Referred to the Committee on Banking and Insurance.
By Senators Bowman, Jenkins, McCabe, Minard, Plymale, Lanham, Foster, Unger and Oliverio:
Senate Bill No. 245--A Bill to repeal §8-8-1, §8-8-2, §8-8-3, §8-8-4, §8-8-5, §8-8-6, §8-8-7, §8-8-8, §8-8-9, §8-8-10, §8-8-11, §8-8-12, §8-8-13, §8-8-14, §8-8-15, §8-8-16, §8-8-17 and §8-8-18 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new chapter, designated §7A-1-1, §7A-1-2, §7A-1-3, §7A-1-4, §7A-2-1, §7A-2-2, §7A-2-3, §7A-2-4, §7A-3-1, §7A-3-2, §7A-3-3, §7A-3-4, §7A-3-5, §7A-3-6, §7A-3-7, §7A-4-1, §7A-4-2, §7A-4-3, §7A-5-1, §7A-5-2, §7A-5-3, §7A-5-4, §7A-5-5, §7A-5-6, §7A-5-7, §7A-6-1, §7A-6-2, §7A-6-3, §7A-6-4, §7A-6-5, §7A-6-6, §7A-6-7, §7A-7-1, §7A-7-2, §7A-7-3, §7A-7-4, §7A-7-5, §7A-7-6, §7A-7-7, §7A-7-8 and §7A-8-1, all relating to creating the Consolidated Local Government Act; stating legislative findings and definitions; authorizing municipal consolidation, county consolidation and metro consolidation; establishing powers to be construed broadly; stating local consolidated government to be treated like municipality in municipal consolidation, county in county consolidation and municipality and county in metro consolidation; addressing jurisdiction and limitations of consolidated local governments; commencing consolidation by petition from voters or resolution by governing bodies; creating charter review committees; stating powers of charter review committees; allowing reimbursement of expenses for committee members; submitting charter review committee budget to governing bodies; studying consolidation; addressing territory, fiscal impact, name, seat, representation, governing body, effective date, transition of service and dissolution in charter review committee; drafting proposed charter; providing multiple public hearings; approving proposed charter and submitting proposed charter to governing bodies to hold elections; providing election by voters of each affected local government for municipal consolidation, county consolidation and metro consolidation; permitting reconsideration of second proposed charter if first is defeated; leaving municipalities incorporated in metro consolidation; disallowing new consolidation effort for two years after defeat; allowing subsequent joining of local governments to consolidated local government; and permitting charter to be amended.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Tomblin (Mr. President), Prezioso, Kessler, Love, Oliverio, McKenzie, Minard, Dempsey, Bowman, Fanning, Bailey, Sprouse, Sharpe, Foster, Jenkins, Weeks, Unger, Lanham, Barnes, Minear, Guills, Chafin, Caruth, Yoder, Deem, White, Boley and Hunter:
Senate Bill No. 246--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18A-4-2b, relating to establishing a state minimum salary supplement for professional personnel holding a nationally recognized professional certification in speech-language pathology, audiology or counseling.
Referred to the Committee on Education; and then to the Committee on Finance.
(Senator Sharpe in the Chair.)
At the request of Senator Tomblin (Mr. President), and by unanimous consent, the following bill was introduced from the floor and read by its title:
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 247--A Bill to repeal §22A-2-69 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §15-5B-1, §15-5B-2, §15-5B-3, §15-5B-4 and §15-5B-5; and to amend and reenact §22A-2-55 and §22A- 2-66 of said code, all relating to mine and industrial emergencies; creating the Mine and Industrial Accident Rapid Response System; providing requirements for protective equipment in underground mines; providing for criminal penalties for unauthorized removal of or tampering with certain protective equipment; providing for notification requirements in the event of an accident in or about any mine; and imposing a civil administrative penalty for the failure to comply with such notification requirements.
(Senator Tomblin, Mr. President, in the Chair.)
Referred to the Committee on the Judiciary.
Thereafter, at the request of Senator Oliverio, and by unanimous consent, the remarks by Senator Tomblin (Mr. President) regarding Senate Bill No. 247 were ordered extended in the Journal as follows:
SENATOR TOMBLIN: Mr. President, we started this year off on a very high note with the winning of the Sugar Bowl and from there we have all been in mourning for the last several weeks.
Starting with the Sago Mine disaster, and this weekend it happened again in my home county of Logan, we had two miners trapped underground for many hours, and we had a tragic ending.
I was very pleased to see the way the community came together, the love that was shared among all--even those who had never had a member of their family in a coal mine. They came together to express their grief and their sorrow of what was happening in our coal mines.
Today, ladies and gentlemen, I am asking you to allow me to introduce a bill from the floor--along with the Minority Leader-- which will address some of these issues. I think the issues contained in this bill would have been a recommendation of the commission that is now looking at both the Sago Mine disaster and the Aracoma Coal Mine disaster in Logan County. One of these issues deals with communications with miners underground.
One of the problems that we've had is locating miners when there's been a disaster. This bill, I think, will help tremendously. It will bring us into the 21st century on how we do underground mining in the State of West Virginia. And I'm sure that what we do here today will be felt across the country to prevent mining disasters such as we've had.
The other thing that the Minority Leader and I are asking to have introduced today would be to provide the availability of oxygen caches throughout underground coal mines. It's one of those things, in my opinion, that's not very expensive but, at the same time, it would provide additional oxygen that will keep miners alive if they are trapped the way that we've found them in our last two disasters.
Thirdly, Mr. President, this bill would require the notification immediately to the state mine office and to our safety office when a disaster occurs. In my opinion, there is absolutely no reason why it should take more than two hours to pick up the phone and call the state offices and let them know that a disaster has occurred.
I would respectfully request that you honor my request today to allow us to introduce this bill from the floor, which is a very rare occurrence in the West Virginia Senate. It will be my hope that if my request is granted, Mr. President, that the bill will be referred to the Judiciary Committee. The Finance Committee would be invited to attend, ask questions and try to understand what has happened in these two disasters and try to address some immediate problems to make sure that these kinds of deaths do not occur again.
It will be my hope that the Judiciary committee can pass a bill out early this afternoon and report it back to the floor of this Senate. We will come back this afternoon, hopefully suspend the rules of the Senate and pass the bill on to the House of Delegates.
I think it's a very important message to send to those grieving families across the State of West Virginia. And I think it's a very important message to send across this county--that we are sincere about miners' health and safety in the State of West Virginia.
I respectfully ask that you grant my request.
Thank you.
__________
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 211, Continuing Board of Professional Surveyors.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 211) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 212, Continuing Board of Dental Examiners.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 212) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 213, Continuing Consolidated Public Retirement Board.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 213) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 214, Continuing Real Estate Commission.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 214) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 215, Continuing Board of Examiners in Counseling.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 215) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 216, Continuing Women's Commission.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 216) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 217, Continuing Board of Osteopathy.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 217) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 218, Continuing Capitol Building Commission.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Facemyer, Plymale and Yoder--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 218) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Senate Bill No. 13, Requiring cross-reporting of suspected abuse or neglect of individuals or animals.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page four, section two, lines thirty-two and thirty-three, by striking out the words "a correctional facility" and inserting in lieu thereof the word "jail".
The bill (S. B. No. 13), as amended, was then ordered to engrossment and third reading.
The Senate proceeded to the eleventh order of business and the introduction of guests.
Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate recessed until 2 p.m. today.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, unanimous consent being granted, returned to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 247, Creating Mine and Industrial Accident Rapid Response System.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 247 (originating in the Committee on the Judiciary)--A Bill to repeal §22A-2-69 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §15-5B-1, §15-5B-2, §15-5B-3, §15-5B-4 and §15-5B-5; to amend and reenact §22A-2-55 and §22A-2-66 of said code; and to amend said code by adding thereto a new section, designated §24-6-14, all relating to mine and industrial emergencies; creating the Mine and Industrial Accident Rapid Response System; providing requirements for protective equipment in underground mines; providing for criminal penalties for the unauthorized removal of or tampering with certain protective equipment; defining certain terms; providing for notification requirements in the event of an accident in or about any mine and imposing a civil administrative penalty for the failure to comply with such notification requirements; providing rule-making authority; and clarifying the responsibilities of county answering points.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 247) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Plymale and Yoder--2.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 247 was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for Senate Bill No. 247 pass?"
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Plymale and Yoder--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 247) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Plymale and Yoder--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 247) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Facemyer, unanimous consent being granted, it was ordered that the Journal show had Senator Facemyer been present in the chamber in earlier proceedings today, she would have voted "yea" on the passage of Engrossed Senate Bill No. 211, Engrossed Senate Bill No. 212, Engrossed Senate Bill No. 213, Engrossed Senate Bill No. 214, Engrossed Senate Bill No. 215, Engrossed Senate Bill No. 216, Engrossed Senate Bill No. 217 and Engrossed Senate Bill No. 218.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 5 p.m. today.
Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 247, Creating Mine and Industrial Accident Rapid Response System.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 5B. MINE AND INDUSTRIAL ACCIDENT RAPID RESPONSE SYSTEM.

§15-5B-1. Legislative purpose; Mine and Industrial Accident Rapid Response System created.

(a) The Legislature finds that the health and safety of persons working in and around the mining industry and other industries is of paramount concern to the people of West Virginia and that deaths and serious injuries resulting from dangerous working conditions cause grief and suffering to workers and their families. The Legislature further finds that there is an urgent need to provide more effective means and measures for improving emergency response and communications for dealing with mine and industrial accidents. The Legislature declares that it is in the best interest of the citizens of West Virginia to designate an emergency telephone number for mining or industrial personnel to initiate a rapid emergency response to any mine or industrial accident. Provision of a single, primary emergency number through which emergency services can be quickly and efficiently obtained and through which the response of various state agencies charged by law with responding to mine and industrial emergencies can be coordinated will significantly contribute to the public good. The Mine and Industrial Accident Rapid Response System will provide a vital resource to the citizens of West Virginia by providing a critical connection between the Director of the Office of Miners' Health, Safety and Training, the Division of Homeland Security and Emergency Management, local and regional emergency services organizations and other responsible agencies.
(b) The Mine and Industrial Accident Rapid Response System is hereby created and shall consist of:
(1) The Mine and Industrial Accident Emergency Operations Center established in section two of this article; and
(2) The 24-hour-a-day statewide telephone number established by the Director of the Division of Homeland Security and Emergency Management.
§15-5B-2. Mine and Industrial Accident Emergency Operations Center.

(a) The Director of the Division of Homeland Security and Emergency Management, working in conjunction with the Office of Miners' Health, Safety and Training, shall maintain the Mine and Industrial Accident Emergency Operations Center, which shall be the official and primary state government 24-hour-a-day communications center for dealing with mine and industrial accidents.
(b) The emergency operations center shall be operated twenty- four hours a day, seven days a week by emergency service personnel employed by the director to provide emergency assistance and coordination to mine and industrial accidents or emergencies.
(c) The emergency operations center shall be readily accessible twenty-four hours a day at a statewide telephone number established and designated by the director.
§15-5B-3. Emergency mine response.
(a) To assist the Division of Homeland Security and Emergency Management in implementing and operating the Mine and Industrial Accident Rapid Response System, the Office of Miners' Health, Safety and Training shall, on a quarterly basis, provide the emergency operations center with a mine emergency contact list. In the event of any change in the information contained in the mine emergency contact list, such changes shall be provided immediately to the emergency operations center. The mine emergency contact list shall include the following information:
(1) The names and telephone numbers of the Director of the Office of Miners' Health, Safety and Training, or his or her designee, including at least one telephone number at which the director or designee may be reached at any time;
(2) The names and telephone numbers of all district mine inspectors, including at least one telephone number for each inspector at which each inspector may be reached at any time;
(3) A current listing of all regional offices or districts of the Office of Miners' Health, Safety and Training, including a detailed description of the geographical areas served by each regional office or district; and
(4) The names, locations and telephone numbers of all mine rescue stations, including at least one telephone number for each station that may be called twenty-four hours a day and a listing of all mines that each mine rescue station serves in accordance with the provisions of section thirty-five, article one, chapter twenty- two-a of this code.
(b) Upon the receipt of an emergency call regarding any accident, as defined in section sixty-six, article two, chapter twenty-two-a of this code, in or about any mine, the emergency operations center shall immediately notify:
(1) The Director of the Office of Miners' Health, Safety and Training or his or her designee;
(2) The district mine inspector assigned to the district or region in which the accident occurred; and
(3) Local emergency service personnel in the area in which the accident occurred.
(c) The director or his or her designee shall determine the necessity for and contact all mine rescue stations that provide rescue coverage to the mine in question.
(d) In the event that an emergency call regarding any accident, as defined in section sixty-six, article two, chapter twenty-two-a of this code, in or about any mine, is initially received by a county answering point, as defined in article six, chapter twenty-four of this code, the call shall be immediately forwarded to the Mine and Industrial Accident Emergency Operations Center.
(e) Nothing in this section shall be construed to relieve an operator, as defined in section two, article one, chapter twenty- two-a of this code, from any reporting or notification obligation under federal law.
(f) The Mine and Industrial Accident Rapid Response System and the emergency operations center are designed and intended to provide communications assistance to emergency responders and other responsible persons. Nothing in this section shall be construed to conflict with the responsibility and authority of an operator to provide mine rescue coverage in accordance with the provisions of section thirty-five, article one, chapter twenty-two-a of this code or the authority of the Director of the Office of Miners' Health, Safety and Training to assign mine rescue teams under the provisions of subsection (d) of said section or to exercise any other authority provided in chapter twenty-two-a of this code.
§15-5B-4. Study of other industrial emergencies.
The Director of the Division of Homeland Security and Emergency Management shall immediately cause a study to be conducted to determine the feasibility of providing emergency coverage to other industrial, manufacturing, chemical or other emergencies through the Mine and Industrial Accident Rapid Response System. On or before the first day of November, two thousand six, the director shall submit a report to the Governor, the President of the Senate and the Speaker of the House of Delegates setting forth the findings of his or her study and recommendations for legislation consistent with the purposes of this article.
§15-5B-5. Rule-making authority.
The Director of the Division of Homeland Security and Emergency Management shall propose emergency and legislative rules for promulgation in accordance with article three, chapter twenty- nine-a of this code regarding the implementation and administration of the Mine and Industrial Accident Rapid Response System. The requirements of this article enacted during the regular session of the Legislature in January, two thousand six, shall not be implemented until the emergency rule authorized herein has been approved.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 2. UNDERGROUND MINES.
§22A-2-55. Protective equipment and clothing. (a) Welders and helpers shall use proper shields or goggles to protect their eyes. All employees shall have approved goggles or shields and use the same where there is a hazard from flying particles or other eye hazards.
(b) Employees engaged in haulage operations and all other persons employed around moving equipment on the surface and underground shall wear snug-fitting clothing. (c) Protective gloves shall be worn when material which may injure hands is handled, but gloves with gauntleted cuffs shall not be worn around moving equipment. (d) Safety hats and safety-toed shoes shall be worn by all persons while in or around a mine: Provided, That metatarsal guards ~~shall~~ are not be required to be worn by persons when working in those areas of underground mine workings which average less than forty-eight inches in height as measured from the floor to the roof of the underground mine workings. (e) Approved eye protection shall be worn by all persons while being transported in open-type man trips. (f) (1) A self-contained self-rescue device approved by the director shall be worn by each person underground or kept within his immediate reach and ~~such~~ the device shall be provided by the operator. The self-contained self-rescue device shall be adequate to protect ~~such~~ a miner for one hour or longer. Each operator shall train each miner in the use of such device and refresher training courses for all underground employees shall be held during each calendar year.
(2) In addition to the requirements of subdivision (1) of this subsection, the operator shall also provide caches of additional self-contained self-rescue devices throughout the mine in accordance with a plan approved by the director. Each additional self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. The total number of additional self- contained self-rescue devices, the total number of storage caches and the placement of each cache throughout the mine shall be established by rule pursuant to subsection (I) of this section. Intrinsically safe battery-powered strobe lights shall be affixed to each cache and shall be capable of automatic activation in the event of an emergency. A luminescent sign with the words "SELF- CONTAINED SELF-RESCUER" or "SELF-CONTAINED SELF-RESCUERS" shall be conspicuously posted at each cache and luminescent direction signs shall be posted leading to each cache. Lifeline cords or other similar device, with reflective material at 25-foot intervals, shall be attached to each cache from the last open crosscut to the surface. The operator shall conduct weekly inspections of each cache, the affixed strobe lights and each lifeline cord or other similar device to ensure operability.
(3) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any self- contained self-rescue device or battery-powered strobe light from the mine or mine site with the intent to permanently deprive the operator of the device or light or knowingly tampers with or attempts to tamper with such device or light shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(g) (1) A wireless emergency communication device approved by the director and provided by the operator shall be worn by each person underground. The wireless emergency communication device shall, at a minimum, be capable of receiving emergency communications from the surface at any location throughout the mine. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine any and all equipment necessary to transmit emergency communications from the surface to each wireless emergency communication device at any location throughout the mine.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless emergency communication device or related equipment, from the mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(h) (1) A wireless tracking device approved by the director and provided by the operator shall be worn by each person underground. In the event of an accident or other emergency, the tracking device shall, at a minimum, be capable of providing real- time monitoring of the physical location of each person underground: Provided, That no person shall discharge or discriminate against any miner based on information gathered by a wireless tracking device during nonemergency monitoring. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine all equipment necessary to provide real-time emergency monitoring of the physical location of each person underground.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless tracking device or related equipment, approved by the director, from a mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(I) The director may promulgate emergency and legislative rules to implement and enforce this section pursuant to the provisions of article three, chapter twenty-nine-a of this code.
(j) The penalties set forth in this article enacted during the regular session of the Legislature in January, two thousand six, shall become effective the first day of July, two thousand six.
§22A-2-66. Accident; notice; investigation by Office of Miners' Health, Safety and Training.

(a) For the purposes of this section, the term "accident" means:
(1) The death of an individual at a mine; (2) An injury to an individual at a mine which has a reasonable potential to cause death; (3) The entrapment of an individual; (4) The unplanned inundation of a mine by a liquid or gas; (5) The unplanned ignition or explosion of gas or dust; (6) The unplanned ignition or explosion of a blasting agent or an explosive; (7) An unplanned fire in or about a mine not extinguished within five minutes of ignition; (8) An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use or an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage; (9) A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour; (10) An unstable condition at an impoundment, refuse pile or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area, or the failure of an impoundment, refuse pile or culm bank; (11) Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than thirty minutes; and (12) An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs.
(b) Whenever ~~by reason~~ ~~of any explosion or other~~ any accident occurs in or about any coal mine or the machinery connected therewith, ~~loss of life, or serious personal injury occurs,~~ it is the duty of the ~~superintendent of the mine, and in his or her absence,~~ operator or the mine foreman in charge of the mine to give ~~immediate~~ notice, within fifteen minutes of ascertaining the occurrence of an accident, to the ~~director and the inspector of the district~~ Mine and Industrial Accident Emergency Operations Center at the statewide telephone number established by the Director of the Division of Homeland Security and Emergency Management pursuant to the provisions of article five-b, chapter fifteen of this code stating the particulars of ~~such~~ the accident: Provided, That the operator or the mine foreman in charge of the mine may comply with this notice requirement by immediately providing notice to the appropriate local organization for emergency services as defined in section eight, article five of said chapter, or the appropriate local emergency telephone system operator as defined in article six, chapter twenty-four of this code: Provided, however, That nothing in this subsection shall be construed to relieve the operator from any reporting or notification requirement under federal law.
(c) The Director of the Office of Miners' Health, Safety and Training shall impose, pursuant to rules authorized in this section, a civil administrative penalty of one hundred thousand dollars on the operator if it is determined that the operator or the mine foremen in charge of the mine failed to give immediate notice as required in this section: Provided, That the director may waive imposition of the civil administrative penalty at any time if he or she finds that the failure to give immediate notice was caused by circumstances wholly outside the control of the operator.
(d) If anyone is killed, the inspector shall immediately go to the scene of ~~such~~ the accident and make ~~such~~ recommendations and render ~~such~~ assistance as he or she may deem necessary for the future safety of the men and investigate the cause of ~~such~~ the explosion or accident and make a record. ~~thereof which he~~ He or she shall preserve the record with the other records in his or her office. The cost of ~~such~~ the investigation records to shall be paid by the Office of Miners' Health, Safety and Training.~~, and a~~ A copy shall be furnished to the operator and other interested parties. To enable him or her to make ~~such~~ an investigation, he or she has the power to compel the attendance of witnesses and to administer oaths or affirmations. The director has the right to appear and testify and to offer any testimony that may be relevant to the questions and to cross-examine witnesses.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 6. LOCAL EMERGENCY TELEPHONE SYSTEM.
§24-6-14. Notification of mining accidents.
Each county answering point that receives a call reporting an accident in or about any mine shall immediately route the call to the Mine and Industrial Accident Emergency Operations Center created pursuant to section two, article five-a, chapter fifteen of this code.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 247, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Bailey, Plymale and White--3.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 247) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Prezioso, Sharpe, Sprouse, Unger, Weeks, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Bailey, Plymale and White--3.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 247) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Thereafter, at the request of Senator Hunter, and by unanimous consent, the remarks by Senators Oliverio and Kessler regarding the passage of Engrossed Committee Substitute for Senate Bill No. 247 were ordered printed in the Appendix to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Yoder, unanimous consent being granted, it was ordered that the Journal show had Senator Yoder been present in the chamber in earlier proceedings today, he would have voted "yea" on the passage of Engrossed Senate Bill No. 211, Engrossed Senate Bill No. 212, Engrossed Senate Bill No. 213, Engrossed Senate Bill No. 214, Engrossed Senate Bill No. 215, Engrossed Senate Bill No. 216, Engrossed Senate Bill No. 217 and Engrossed Senate Bill No. 218.
On motion of Senator Chafin, a leave of absence for the day was granted Senator Plymale.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, January 24, 2006, at 11 a.m.
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