WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTY-SECOND LEGISLATURE
REGULAR SESSION, 2015
TWENTY-THIRD DAY
____________
Charleston, W. Va., Thursday, February 5, 2015
The Senate met at 11 a.m.
(Senator Cole, Mr. President, in the Chair.)
Prayer was offered by Lee Boso, Youth Pastor, Summersville Baptist Church, Summersville, West Virginia.
The Senate was then led in recitation of the Pledge of Allegiance by the Honorable Gregory L. Boso, a senator from the eleventh district.
Pending the reading of the Journal of Wednesday, February 4, 2015,
On motion of Senator Stollings, 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 a communication from the Department of Health and Human Resources, submitting its annual Breast and Cervical Cancer Screening Program report as required by chapter sixteen, article thirty-three, section six of the Code of West Virginia.
Which communication and report were 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 amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 13, Reinstating open and obvious doctrine for premises liability.
On motion of Senator Carmichael, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, section twenty-seven, line seven, after the word “dangers” by changing the period to a comma and inserting the following: except when such dangerous condition constituted a violation of an applicable statute or ordinance intended for the protection of public safety and such violation was a direct and proximate cause of such injured person’s injuries.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 13--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-27, relating to the liability of a possessor of real property for injuries caused by open and obvious hazards; reinstating and codifying open and obvious doctrine of common law as it existed prior to judicial abolition; providing that the open and obvious doctrine of common law does not apply when a dangerous condition is a violation of a public safety statute or ordinance which violation is the proximate cause of injury; clarifying that this section does not create, recognize or ratify a claim or cause of action; and stating legislative intent.
On motion of Senator Carmichael, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. B. No. 13) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2010--A Bill to amend and reenact §3-1-16 and §3-1-17 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-4A-11a of said code; to amend and reenact §3-5-4 of said code; to amend said code by adding thereto four new sections, designated §3-5-6a, §3-5-6b, §3-5-6c, and §3-5-6d; to amend and reenact §3-5-7, §3-5-13 and §3-5-13a of said code; to amend and reenact §3-10-3 of said code; to amend and reenact §3-12-3, §3-12-6, §3-12-10, §3-12-11, §3-12-12, and §3-12-14 of said code; to amend and reenact §6-5-1 of said code; to amend and reenact §50-1-1 and §50-1-6 of said code; to amend and reenact §51-1-1 of said code; to amend and reenact §51-2-1 of said code; and to amend and reenact §51-2A-5 of said code, all relating to electoral reforms of the West Virginia judiciary generally; requiring the election of justices of the Supreme Court of Appeals, circuit court judges, family court judges and magistrates be on a nonpartisan basis; requiring that elections to certain offices be on a division basis when more than one justice of the Supreme Court of Appeals, circuit judge, family court judge, or magistrate is to be elected; providing for the timing and frequency of election; providing for the commencement of terms of office; establishing ballot design and printing; providing that elections for justice of the Supreme Court of Appeals, circuit judge, family court judge, or magistrate are to be held on the same date as the primary election; requiring nonpartisan ballots be used; establishing filing announcement of candidacies, including the timing, location and information necessary thereto; providing for the order of appearance of offices on the ballot; establishing ballot content; providing the procedures for the filling of vacancies in the offices of justices of the Supreme Court of Appeals, circuit judge, family court judge, or magistrate; providing occasions for special elections to be held to fill vacancies; providing that unsuccessful non-partisan candidates can be selected to fill ballot vacancies in a general election; providing the timing of commencement of the terms of offices of justices of the Supreme Court of Appeals, circuit judge, family court judge, or magistrate; and providing for the continuing applicability of the West Virginia Supreme Court of Appeals Public Campaign Financing Program.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2114--A Bill to amend and reenact §11-21-9 of the Code of West Virginia, 1931, as amended, relating to updating the meaning of federal adjusted gross income and certain other terms used in the West Virginia Personal Income Tax Act; and specifying effective dates.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 2115--A Bill to amend and reenact §11-24-3 of the Code of West Virginia, 1931, as amended, relating to updating the meaning of the term "federal taxable income" and certain other terms used in the West Virginia Corporation Net Income Tax Act; and specifying effective dates.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2217--A Bill to amend and reenact §21-1-2 of the Code of West Virginia, 1931, as amended, relating to the qualifications of the Commissioner of Labor; removing language that the commissioner be identified with the labor interests of the state and requiring that the commissioner be identified with and have knowledge and experience in employee issues and interests including employee-employer relations in this state.
At the request of Senator Carmichael, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
Executive Communications
The Clerk then presented a communication from His Excellency, the Governor, advising that on February 4, 2015, he had approved Enr. Committee Substitute for Senate Bill No. 280.
The Senate proceeded to the fourth order of business.
Senator Trump, 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. 37, Relating to arbitration.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 37 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §55-10-1, §55-10-2, §55-10-3, §55-10-4, §55-10-5, §55-10-6, §55-10-7 and §55-10-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto twenty-five new sections, designated §55-10-9, §55-10-10, §55-10-11, §55-10-12, §55-10-13, §55-10-14, §55-10-15, §55-10-16, §55-10-17, §55-10-18, §55-10-19, §55-10-20, §55-10-21, §55-10-22, §55-10-23, §55-10-24, §55-10-25, §55-10-26, §55-10-27, §55-10-28, §55-10-29, §55-10-30, §55-10-31, §55-10-32 and §55-10-33, all relating generally to arbitration; providing for a short title; making legislative findings and declaring public policy; defining terms; defining notice under article; defining when article applies; proscribing effect of agreements to arbitrate and defining nonwaivable provisions; allowing for application for judicial relief under article; making agreement to arbitrate valid unless legal or equitable reason for revocation exists; providing for terms by which arbitration may continue if challenged; providing for process for motions to compel or stay arbitration; providing for provisional remedies to protect effectiveness of arbitration proceedings; providing process for initiation of arbitration; providing for consolidation of separate arbitration proceedings; providing for appointment of arbitrator and default process if not agreed by the parties; requiring neutrality of arbitrators; requiring disclosure by arbitrators of matters affecting impartiality; requiring majority of arbitrators to agree to exercise powers; providing immunity for arbitrators; requiring competency to testify; providing for attorneys’ fees and costs for challenges from which arbitrators are immune; providing general process for arbitration; allowing parties to be represented by a lawyer in arbitrations; outlining procedure for witnesses, subpoenas, depositions and discovery in arbitrations; providing for judicial enforcement of preaward ruling by arbitrator; providing for record of an award and requirements for an award; allowing change of an award by arbitrator upon motion under certain conditions; providing that certain remedies and fees and costs of arbitration may be a part of arbitration award; allowing for confirmation by court of an award upon motion; providing process and grounds for vacating an award by a court; providing process and grounds for modification or correction of an award upon motion; providing that court shall enter a judgment upon confirmation of an award and may add reasonable attorneys’ fees and costs; providing for jurisdiction over arbitration agreements by a court of this state; providing venue; providing that appeals may be taken from orders related to arbitration proceedings; requiring uniform construction of act; providing that this act complies with the Electronic Signatures in Global and National Commerce Act; and providing effective date.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Charles S. Trump IV,
Chair.
Senator Leonhardt, from the Committee on Military, submitted the following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 75, Legalizing and regulating sale of fireworks; establishing WV Veterans Program Fund.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 75 (originating in the Committee on Military)--A Bill to repeal §11-12-86 of the Code of West Virginia, 1931, as amended; to repeal §29-3-23, §29-3-24, §29-3-25 and §29-3-26 of said code; to amend said code by adding thereto a new section, designated §9A-1-11b; to amend said code by adding thereto a new article, designated §29-3E-1, §29-3E-2, §29-3E-3, §29-3E-4, §29-3E-5, §29-3E-6, §29-3E-7, §29-3E-8, §29-3E-9, §29-3E-10, §29-3E-11, §29-3E-12 and §29-3E-13; and to amend and reenact §61-3E-1 and §61-3E-11 of said code, all relating to legalizing and regulating the sale and use of fireworks; creating the West Virginia Veterans Program Fund; creating the Fireworks Safety Act; defining terms; establishing registration requirements for a retailer selling sparkling devices, novelties or toy caps; establishing certification requirements for a retailer selling consumer fireworks; establishing permit requirements for presenting public display of fireworks; creating a fireworks safety fee of twenty percent of all sales for the retail sale of consumer fireworks; designating the allocation of the fee; giving the State Fire Marshal rule-making authority; setting out exemptions; stating unlawful acts; and providing criminal penalties.
And,
Senate Bill No. 316, Exempting veteran-owned business from certain fees paid to Secretary of State.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 316 (originating in the Committee on Military)--A Bill to amend and reenact §59-1-2 and §59-1-2a of the Code of West Virginia, 1931, as amended, all relating to veteran-owned businesses; defining terms; exempting new veteran-owned businesses from certain fees paid to the Secretary of State; and exempting new veteran-owned businesses from paying annual report fees for the first four years after their initial registration.
With the recommendation that the two committee substitutes do pass; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
Kent Leonhardt,
Chair.
On motion of Senator Leonhardt, Committee Substitute for Senate Bill No. 75 contained in the foregoing report from the Committee on Military was referred to the Committee on the Judiciary, and then, under the original double committee reference, to the Committee on Finance.
Committee Substitute for Senate Bill No. 316, under the original double committee reference, was then referred to the Committee on Finance.
Senator Trump, 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 Senate Bill No. 255, Eliminating certain boards, councils, committees, panels, task forces and commissions.
Senate Bill No. 262, Transferring CHIP and Children's Health Insurance Agency from Department of Administration to DHHR.
Senate Bill No. 267, Repealing code relating to Governor's Office of Health Enhancement and Lifestyle Planning.
And,
Senate Bill No. 295, Establishing appeal process for DHHR Board of Review and Bureau for Medical Services decisions.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Charles S. Trump IV,
Chair.
Senator Gaunch, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 298, Clarifying funds within Public Employees Retirement Fund.
Senate Bill No. 299, Clarifying start date of State Police duty-related disability payments.
And,
Senate Bill No. 302, Relating to state retirement plans.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
C. Edward Gaunch,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator Gaunch, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 301, Modifying definition of "member" in Municipal Police and Firefighters Retirement System.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
C. Edward Gaunch,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Trump, 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. 357, Creating Coal Jobs and Safety Act of 2015.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 357 (originating in the Committee on the Judiciary)--A Bill to repeal §22A-2A-302, §22A-2A-303, §22A-2A-304, §22A-2A-305, §22A-2A-306 and §22A-2A-307 of the Code of West Virginia, 1931, as amended; to amend and reenact §22-3-13 and §22-3-19 of said code; to amend and reenact §22-11-6 and §22-11-8 of said code; to amend said code by adding thereto a new section, designated §22-11-22a; to amend said code by adding thereto a new section, designated §22A-1-41; to amend and reenact §22A-1A-1 of said code; to amend and reenact §22A-2-6, §22A-2-28 and §22A-2-37 of said code; to amend and reenact §22A-2A-101, §22A-2A-301, §22A-2A-308, §22A-2A-309, §22A-2A-310, §22A-2A-402, §22A-2A-403, §22A-2A-404, §22A-2A-405, §22A-2A-501, §22A-2A-601, §22A-2A-602, §22A-2A-603 and §22A-2A-604 of said code; and to amend said code by adding thereto a new section, designated §22A-2A-204a, all relating to creating the Coal Jobs and Safety Act of 2015; providing methods of assuring that discharges from waste piles do not exceed applicable water quality standards; conforming rules regarding procedures for requesting and obtaining inactive status and rules relating to requirements for contemporaneous reclamation under West Virginia Surface Coal Mining and Reclamation Act to corresponding federal requirements; abolishing West Virginia Diesel Equipment Commission; transferring duties and responsibilities of West Virginia Diesel Equipment Commission to Director of the Office of Miners’ Health, Safety and Training; defining terms; providing rule-making authority; providing that rules previously approved by commission continue in full force and effect; developing emergency rules for statewide hardness-based aluminum water quality criteria for protection of aquatic life; prohibiting wholesale incorporation of water quality standards into permits rather than specifically developing terms and conditions on a permit-by-permit basis that are designed to protect water quality standards; modifying the scope of the permit shield as it relates to compliance with water quality standards; establishing an administrative and civil enforcement process for coal mining-related permits that conforms with corresponding federal requirements; making legislative findings; permitting immediate temporary suspension, suspension or revocation of a certificate held by of a certified person who has tested positive for certain drugs or alcohol, refused to submit a sample for screening, possessed or submitted a substituted sample or possessed or submitted an adulterated sample for testing; providing that if a drug test is positive, a certified employee may not rely on the fact that the drug was prescribed if the prescription is more than one year old; setting forth requirements for movement of off-track mining equipment in areas of active workings where energized trolley wires or trolley feeder wires are present; establishing premovement requirements; increasing distance from five hundred feet to one thousand five hundred feet of the nearest working face where transportation of certain personnel in certain instances is done exclusively by rail; requiring certain equipment be readily available when distance from track to face is between five hundred feet and one thousand five hundred feet; increasing distance of track to be maintained when a section is fully developed and being prepared for retreating; permitting use of sideboards on shuttle cars if they are equipped with cameras; requiring shelter holes be provided along haulage entries and be placed not more than one hundred five feet apart; providing exception; removing requirement that locomotives, personnel carriers, barrier tractors and other related equipment be equipped with lifting jacks and handles; and prescribing that no one, other than motorman and brakeman, should ride on a locomotive unless authorized by the mine foreman, and then only when safe riding facilities are provided.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Charles S. Trump IV,
Chair.
Senator Blair, from the Committee on Government Organization, submitted the following report:
Your Committee on Government Organization has had under consideration
Senate Bill No. 361, Repealing code sections relating to prevailing hourly wage requirement for construction of public improvements.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 361 (originating in the Committee on Government Organization)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §21-5A-12, relating to eliminating the requirement of paying prevailing hourly rate of wages for construction of public improvements.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Craig Blair,
Chair.
Senator Kessler moved that the report from the Committee on Government Organization for Committee Substitute for Senate Bill No. 361 be rejected.
Following extended discussion,
The question being on the adoption of Senator Kessler’s aforestated motion, and on this question, Senator Kessler demanded the yeas and nays.
The roll being taken, the yeas were: Beach, Facemire, Kessler, Kirkendoll, Laird, Miller, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Unger, Williams, Woelfel and Yost--16.
The nays were: Blair, Boley, Boso, Carmichael, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Leonhardt, Maynard, Mullins, Nohe, Sypolt, Takubo, Trump, Walters and Cole (Mr. President)--18.
Absent: None.
So, a majority of those present and voting not having voted in the affirmative, the President declared Senator Kessler’s aforestated motion had not prevailed.
Whereupon, the President declared the report from the Committee on Government Organization for Committee Substitute for Senate Bill No. 361 received.
Thereafter, at the request of Senator Laird, and by unanimous consent, the remarks by Senators Kessler, Snyder, Miller, Woelfel, Kirkendoll, Romano and Unger regarding the adoption of Senator Kessler’s motion to reject the Committee on Government Organization’s report for Committee Substitute for Senate Bill No. 361 were ordered printed in the Appendix to the Journal.
At the request of Senator D. Hall, unanimous consent being granted, the remarks by Senators Blair, Carmichael, Trump and Boso regarding the adoption of Senator Kessler’s motion to reject the Committee on Government Organization’s report for Committee Substitute for Senate Bill No. 361 were ordered printed in the Appendix to the Journal.
Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2025, Prohibiting certain sex offenders from loitering within one thousand feet of a school or child care facility.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Charles S. Trump IV,
Chair.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
By Senators D. Hall, M. Hall, Prezioso, Boley, Woelfel, Plymale and Beach:
Senate Bill No. 416--A Bill to repeal §7-18-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §7-18-1 and §7-18-3 of said code, all relating to eliminating exemption from hotel occupancy taxes on rental of hotel and motel rooms for thirty or more consecutive days; redefining certain terms; exempting hotel rooms occupied by federal or state officials on official business and complimentary hotel rooms provided without charge to guests from tax; and retroactive application.
Referred to the Committee on Finance.
By Senators Snyder and Blair:
Senate Bill No. 417--A Bill to amend and reenact §11-14C-23 of the Code of West Virginia, 1931, as amended, relating to removal of certain tax discounts from motor fuel excise tax.
Referred to the Committee on Finance.
By Senators Nohe and Gaunch:
Senate Bill No. 418--A Bill to amend and reenact §38-1-7 of the Code of West Virginia, 1931, as amended, relating to providing that a defendant in a civil action to recover a deficiency after a sale under a deed of trust may not assert as a defense that fair market value was not obtained for property sold at foreclosure sale.
Referred to the Committee on the Judiciary.
By Senators Nohe and Gaunch:
Senate Bill No. 419--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §24A-9-1, §24A-9-2, §24A-9-3, §24A-9-4, §24A-9-5, §24A-9-6 and §24A-9-7, all relating to insurance requirements for transportation network companies and drivers operating in West Virginia.
Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senators Boley, Carmichael, Karnes, Kessler, Mullins, Plymale, Sypolt, Unger and Kirkendoll:
Senate Bill No. 420--A Bill to amend and reenact §18-5-18 of the Code of West Virginia, 1931, as amended; and to amend and reenact §18A-4-8 and §18A-4-8b of said code, all relating to retirement benefits for persons employed as an aide or early classroom assistant teacher and braille or sign support specialist in kindergarten programs; creating a class of Early Childhood Classroom Assistant Teacher I, Early Childhood Classroom Assistant Teacher II and Early Childhood Classroom Assistant Teacher III; providing that a person who has held or holds an aide title and becomes employed as an Early Childhood Classroom Assistant Teacher holds a multiclassification status that includes aide and/or paraprofessional titles and are included in the same classification category as aides; and providing that an aide in a kindergarten program that is eligible for full retirement benefits before July 1, 2020, may remain employed as an aide in that position and be granted an Early Childhood Classroom Assistant Teacher permanent authorization by the state superintendent.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Trump, Carmichael, Blair and Gaunch:
Senate Bill No. 421--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-27, relating generally to treatment of punitive damages; providing for limitations on punitive damages; providing for when punitive damages may be awarded; providing for a bifurcated trial, upon request, for civil actions involving punitive damages; providing that one third of all punitive damages awards made in the state be tendered to the State Treasurer; providing that those remittances be deposited into the Revenue Shortfall Reserve Fund; and providing that those funds be administered according to section twenty, article two, chapter eleven-b of this code.
Referred to the Committee on the Judiciary.
By Senators Plymale, D. Hall, Miller, Unger, Kessler and Stollings:
Senate Bill No. 422--A Bill to amend and reenact §18A-4-2 of the Code of West Virginia, 1931, as amended, relating to increasing salaries for teachers through fiscal year 2020.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators M. Hall, Blair, Carmichael, Facemire, D. Hall, Kirkendoll, Mullins, Plymale, Romano, Trump, Woelfel, Williams and Stollings:
Senate Bill No. 423--A Bill to repeal §22-31-3, §22-31-4, §22-31-5, §22-31-6, §22-31-7, §22-31-8, §22-31-9, §22-31-10, §22-31-11 and §22-31-12 of the Code of West Virginia, 1931, as amended; to amend and reenact §22-30-2, §22-30-3, §22-30-4, §22-30-5, §22-30-6, §22-30-7, §22-30-8, §22-30-9, §22-30-10, §22-30-11, §22-30-12, §22-30-13, §22-30-14, §22-30-15, §22-30-16, §22-30-17, §22-30-18, §22-30-19, §22-30-21, §22-30-22, §22-30-24 and §22-30-25 of said code; to amend said code by adding thereto two new sections, designated §22-30-26 and §22-30-27; and to amend and reenact §22-31-2 of said code, all relating to protection of water resources and public health generally; amending the Aboveground Storage Tank Act; defining terms; requiring secretary to compile inventory of aboveground storage tanks in the state; requiring registration; authorizing certain fees; requiring secretary to develop regulatory program for tanks; providing factors to be considered in a program; requiring inspection and certification of tanks; requiring evidence of financial responsibility; requiring corrective action and plans; requiring spill prevention response plans; requiring notice of type and quantity of fluids stored in tanks to local water utilities and governments; requiring posting of signs at or near tanks; creating an administrative fund; creating Protect Our Water Fund; authorizing public access to certain information; authorizing inspections, monitoring and testing by secretary; authorizing secretary to issue administrative orders and seek injunctive relief; providing for civil and criminal penalties; allowing appeals to Environmental Quality Board; prohibiting duplicative enforcement; requiring secretary to report to legislative entities; requiring interagency coordination; establishing duties of secretary upon imminent and substantial danger; providing additional duties and powers of secretary generally; providing for waiver of certain requirements; authorizing secretary to require individual NPDES permits; authorizing secretary to inventory potential sources of significant contamination; membership of study commission; scope of study; establishing reporting requirements; requiring the establishment of advance warning, testing and monitoring at certain water utilities; requiring certain information be filed with Public Water Commission; and requiring utility to report back to Legislature if technology is infeasible.
Referred to the Committee on the Judiciary.
By Senators Ferns and Stollings:
Senate Bill No. 424--A Bill to amend and reenact §16-3D-2 and §16-3D-3 of the Code of West Virginia, 1931, as amended, all relating to compulsory tuberculosis testing; defining terms; removing requirement for compulsory tuberculosis testing for school children transferring from outside this state; removing requirement for recording test results, immediate evaluations by a physician of positive reactors and x-rays upon a positive test; omitting requirement for all school personnel to have one tuberculin test at time of employment; and eliminating requirement that local health officers be responsible for arranging follow-up of school personnel and students who are not able to get a physician evaluation for a positive tuberculin skin test.
Referred to the Committee on Health and Human Resources; and then to the Committee on Education.
By Senators Boley, Gaunch, Leonhardt, Maynard and Nohe:
Senate Joint Resolution No. 5--Proposing an amendment to the Constitution of the State of West Virginia, amending section two, article XII thereof, relating to reforming the West Virginia Board of Education so that its membership is made up of three members elected from each congressional district; providing that members serve six-year terms; providing that the board be a nonpartisan body; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
Referred to the Committee on the Judiciary.
Senators Kessler, Leonhardt, Yost, Plymale and Beach offered the following resolution:
Senate Concurrent Resolution No. 18--Requesting the Division of Highways name the bridge on Route 20 over Fishing Creek, South Fork in Wetzel County, locally known as the Pine Grove Bridge, bridge number 52-20-16.04, as the "U. S. Army COL William L. Glover Memorial Bridge".
Whereas, Colonel Glover was born in Pine Grove, West Virginia, on May 27, 1939, the son of Herdman and Merle Glover, and graduated from Pine Grove High School in 1957; and
Whereas, Colonel Glover attended West Virginia University and was a member of the ROTC program. He graduated in 1961 with a degree in business and entered the United States Army as a Second Lieutenant; and
Whereas, During his distinguished military career, Colonel Glover was stationed in France and Korea before serving a tour of duty in Vietnam, where he was awarded the Bronze Star for his service; and
Whereas, Colonel Glover was commissioned a Colonel in 1982 with the United States Army, retired in 1991 with thirty years of honorable military service to his country and afterward he resided in Massachusetts where he worked as a computer consultant; and
Whereas, After a brief stint in Arizona, Colonel Glover moved back to West Virginia and in 1997 married his beloved wife Nelda E. Kocher, a fellow graduate of Pine Grove High School; and
Whereas, Colonel Glover loved to sing, which lead him to record as a teenager and later in life he was a prominent voice in his church choir and performed in musicals; and
Whereas, Sadly, Colonel Glover passed away on July 20, 2012, leaving behind his wife Nelda, sister Beulah, a daughter, two sons, a step-daughter, six grandchildren, three step-grandchildren and three step-great grandsons, and a legacy of dedicated public and military service to his country and to his family and friends; and
Whereas, As it was his wish, Colonel Glover was buried on January 25, 2013, in his final resting place, Arlington National Cemetery; and
Whereas, It is fitting that an enduring memorial be established to commemorate a native son who so ably served his state and his country by naming the bridge on Route 20 over Fishing Creek, South Fork, in Wetzel County, locally known as the Pine Grove Bridge, bridge number 52-20-16.04, as the "U. S. Army Colonel William L. Glover Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the bridge on Route 20 over Fishing Creek, South Fork, in Wetzel County, locally known as the Pine Grove Bridge, bridge number 52-20-16.04, as the "U. S. Army COL William L. Glover Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the "U. S. Army COL William L. Glover Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to Colonel Glover's widow, Nelda E. Glover.
Which, under the rules, lies over one day.
Senators Maynard, Plymale, Kirkendoll and Stollings offered the following resolution:
Senate Concurrent Resolution No. 19--Requesting the Division of Highways name that stretch of road beginning at the Town of Wayne, mile post 16.0, and running to the Lincoln County line in Wayne County, mile post 38.0, the "Darrell W. Sanders Memorial Highway".
Whereas, Darrell W. Sanders was born in Wayne, West Virginia, on October 6, 1945, where he grew up and was educated in the local schools. He held the rank of SP4 in the United States Army when he was killed in Vietnam on November 17, 1965, at the age of twenty; and
Whereas, His service and ultimate sacrifice to his country, state and county should not go unnoticed; and
Whereas, Naming that stretch of road in Wayne County the "Darrell W. Sanders Memorial Highway" is an appropriate recognition of his service and sacrifice; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name that stretch of road beginning at the Town of Wayne, mile post 16.0, and running to the Lincoln County line in Wayne County, mile post 38.0, the "Darrell W. Sanders Memorial Highway"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the road as the "Darrell W. Sanders Memorial Highway"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and the surviving family of Darrell W. Sanders.
Which, under the rules, lies over one day.
Senators Maynard, Plymale, D. Hall and Stollings offered the following resolution:
Senate Concurrent Resolution No. 20--Requesting the Division of Highways name the ten-mile stretch of Route 83 in McDowell County, beginning at milepost 18.05 and ending at milepost 8.05, between its intersection with Route 16 at Yukon and the Bradshaw city line, as the "U. S. 1SG Army Joe C. Alderman Memorial Road".
Whereas, First Sergeant Alderman was born in Bartley, McDowell County, on September 11, 1940; and
Whereas, First Sergeant Alderman enlisted in the Army in 1958 following his graduation from Big Creek High School; and
Whereas, First Sergeant Alderman began his career with the Army Special Forces in 1962; and
Whereas, During his time in the Special Forces, First Sergeant Alderman spent seven years on special detachments in Vietnam; and
Whereas, First Sergeant Alderman’s awards and honors include the Silver Star, Legion of Merit, Soldier’s Medal, six Bronze Stars, the Meritorious Service Medal, five Air Medals, the Joint Service Medal, six Army Commendation Medals and three Purple Hearts. Other awards from his time in Vietnam include the Special Service Medal for Heroism, the Cross of Gallantry with a Silver Star, two Bronze Stars and the Armed Forces Honor Medal; and
Whereas, First Sergeant Alderman retired in November 1980, and his career achievements were marked with his 1996 induction into the prestigious U. S. Army Ranger Hall of Fame; and
Whereas, First Sergeant Alderman died on August 19, 1994, was interred at Arlington National Cemetery with full military honors; and
Whereas, It is fitting to honor First Sergeant Alderman’s life and service by naming the stretch of Route 83 after him; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the ten-mile stretch of Route 83 in McDowell County, beginning at milepost 18.05 and ending at milepost 8.05, between its intersection with Route 16 at Yukon and the Bradshaw city line, as the "U. S. Army 1SG Joe C. Alderman Memorial Road"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the road as the "U. S. Army 1SG Joe C. Alderman Memorial Road"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and U. S. Army First Sergeant Alderman's surviving relatives.
Which, under the rules, lies over one day.
Senators Karnes, Blair, Boley, Ferns, Gaunch, D. Hall, Boso, Kirkendoll, Leonhardt, Maynard, Mullins, Nohe, Sypolt, Takubo, Trump, Walters and Woelfel offered the following resolution:
Senate Concurrent Resolution No. 21--Urging the United States Congress call a convention of the states, under the authority reserved to the states in Article V of the United States Constitution, limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government and limit the terms of office for its officials and for members of Congress.
Whereas, Article IV, Section 4 of the Constitution of the United States guarantees to every state a republican form of government which gives each state equal standing when calling for an amendments convention. Article V of the Constitution of the United States reserves to the several states the right to call for a convention for the purpose of amending the United States Constitution when Congress or the courts or both Congress and the courts refuse to address an egregious wrong suffered by the people; and
Whereas, The states alone have the authority to “limit” the agenda and authority of a convention. The states alone can call for a “Single Issue” convention by agreeing among themselves the purpose, terms, conditions, duration and agenda for the convention. Congress does not have the authority to define a “Single Issue” convention. The authority of Congress, under Article V of the United States Constitution, empowers it to convene a convention as called for and defined by the several states; and
Whereas, The founders of our constitution empowered state legislators to be guardians of liberty against future abuses of power by the federal government which has created a crushing national debt through improper and imprudent spending; and
Whereas, The federal government has invaded the legitimate roles of the states through the manipulative process of federal mandates, most of which are unfunded to a great extent, and the federal government has ceased to live under a proper interpretation of the Constitution of the United States; and
Whereas, It is the solemn duty of the states to protect the liberty of our people--particularly for the generations to come--by proposing amendments to the Constitution of the United States through a Convention of the States under Article V for the purpose of restraining these and related abuses of power; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the United States Congress call a convention of the states, under the authority reserved to the states in Article V of the United States Constitution, limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government and limit the terms of office for its officials and for members of Congress.; and, be it
Further Resolved, That the State of West Virginia hereby applies to Congress, under the provisions of Article V of the Constitution of the United States, for the calling of a convention of the states limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government and limit the terms of office for its officials and for members of Congress and absolutely no other business will be authorized at this convention; and, be it
Further Resolved, That this application constitutes a continuing application in accordance with Article V of the Constitution of the United States until the legislatures of at least two thirds of the several states have made applications on the same subject; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution and application to the President and Secretary of the United States Senate, to the Speaker and Clerk of the United States House of Representatives, to the members of West Virginia’s congressional delegation and to the presiding officers of each of the legislative houses in the several states requesting their cooperation.
Which, under the rules, lies over one day.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 15, Requesting DOH name bridge in Kanawha County "Tom Williams Family Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
Senate Concurrent Resolution No. 16, Urging Congress recognize May 4 as National FPIES Awareness Day.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Health and Human Resources.
Senate Concurrent Resolution No. 17, Requesting Joint Committee on Government and Finance study probate process.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 318, Relating to payment of wages by employers.
On third reading, coming up in regular order, with the right having been granted on yesterday, Wednesday, February 4, 2015, for amendments to be considered on third reading, was reported by the Clerk.
On motion of Senator Unger, the following amendment to the bill was reported by the Clerk and adopted:
On page two, section three, line four, after the word “month” by inserting the words “and with no more than nineteen days between settlements”.
The bill, as just amended, was again ordered to engrossment.
Engrossed Senate Bill No. 318 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 318) 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. 389, Relating to Board of Registration for Professional Engineers license renewals and reinstatements.
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: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 389) passed with its title.
Senator Carmichael moved that the bill take effect from passage.
On this question, the yeas were: Beach, Blair, Boley, Boso, Carmichael, Facemire, Ferns, Gaunch, D. Hall, M. Hall, Karnes, Kessler, Kirkendoll, Laird, Leonhardt, Maynard, Miller, Mullins, Nohe, Palumbo, Plymale, Prezioso, Romano, Snyder, Stollings, Sypolt, Takubo, Trump, Unger, Walters, Williams, Woelfel, Yost and Cole (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 389) 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 ninth order of business.
Senate Bill No. 250, Relating to Conservation Agency financial assistance applications from district supervisors.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 261, Clarifying definition of "owner" of dam.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 279, Clarifying qualifications of Labor Commissioner.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 374, Permitting in absentia parole hearings in certain instances.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 375, Specifying who receives parole hearing notices via regular or certified mail.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 187, Authorizing Department of Revenue promulgate legislative rules.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 287, Providing posthumous high school diplomas.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Eng. Com. Sub. for House Bill No. 2002, Predicating actions for damages upon principles of comparative fault.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Kessler, Unger, Karnes, Snyder and Blair.
Thereafter, at the request of Senator Sypolt, and by unanimous consent, the remarks by Senator Karnes were ordered printed in the Appendix to the Journal.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules and a majority party caucus,
On motion of Senator Carmichael, the Senate adjourned until tomorrow, Friday, February 6, 2015, at 11 a.m.
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