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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

TWENTY-FOURTH DAY

____________

Charleston, W. Va., Friday, February 3, 2012

    The Senate met at 11 a.m.

(Senator Kessler, Mr. President, in the Chair.)

    Prayer was offered by Bishop P. Randall Bowles, Oceana Church of God, Oceana, West Virginia.

    Pending the reading of the Journal of Thursday, February 2, 2012,

    On motion of Senator Foster, 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.

    At the request of Senator Unger, and by unanimous consent, the provisions of rule number fifty-four of the Rules of the Senate, relating to persons entitled to the privileges of the floor, were suspended in order to grant family members of Kelsey Zuspan privileges of the floor for the day.

    The Senate proceeded to the fourth order of business.

    Senator Palumbo, 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. 54, Relating to minors obtaining tattoos; parental consent.

    With an amendment from the Committee on Health and Human Resources pending;

    And reports the same back with the recommendation that it do pass as amended by the Committee on Health and Human Resources to which the bill was first referred.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Stollings, from the Committee on Health and Human Resources, submitted the following report, which was received:

    Your Committee on Health and Human Resources has had under consideration

    Senate Bill No. 73, Restricting use of tanning facilities by minors.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 73 (originating in the Committee on Health and Human Resources)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-44-1, §16-44-2, §16-44-3, §16-44-4 and §16-44-5, all relating generally to regulation of tanning facilities; defining terms; setting forth requirements for registration, inspection and obtaining a permit; requiring a consent form; setting forth consent form language; creating operating standards; prohibiting the use of tanning devices by anyone under the age of eighteen; granting rule-making authority to the Department of Health and Human Resources to regulate tanning facilities; setting forth minimum requirements for the rule; and establishing criminal penalties.

    With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.

                             Respectfully submitted,

                               Ron Stollings,

                                 Chair.

    The bill (Com. Sub. for S. B. No. 73), under the original double committee reference, was then referred to the Committee on the Judiciary.

    Senator Stollings, from the Committee on Health and Human Resources, submitted the following report, which was received:

    Your Committee on Health and Human Resources has had under consideration

    Senate Bill No. 109, Permitting unlicensed personnel to administer medications in certain circumstances.

    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 the Judiciary.

                             Respectfully submitted,

                               Ron Stollings,

                                 Chair.

    The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.

    Senator Palumbo, 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. 253, Authorizing DEP promulgate legislative rule relating to hazardous air pollutant emission standards.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 253 (originating in the Committee on the Judiciary)--A Bill to amend and reenact article 3, chapter 64 of the Code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the Department of Environmental Protection; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register and as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to solid waste management; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to hazardous waste management system; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to ambient air quality standards; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to permits for construction and major modification of major stationary sources for the prevention of significant deterioration of air quality; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to standards of performance for new stationary sources; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of air pollution from the combustion of solid waste; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to permits for construction and major modification of major stationary sources which cause or contribute to nonattainment areas; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of air pollution from hazardous waste treatment, storage and disposal facilities; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to requirements for operating permits; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to emission standards for hazardous air pollutants; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to determining conformity of general federal actions to applicable implementation plans; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the greenhouse gas emissions inventory program; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the National Pollutant Discharge Elimination System (NPDES) Program; and authorizing the Department of Environmental Protection to promulgate a legislative rule relating to voluntary remediation and redevelopment.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Plymale, from the Committee on Education, submitted the following report, which was received:

    Your Committee on Education has had under consideration

    Senate Bill No. 327, Exempting certain school mascot from prohibition of firearms possession on school grounds.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 327 (originating in the Committee on Education)--A Bill to amend and reenact §8-12-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-7-11a of said code, all relating to providing an exemption for the official mascot of Parkersburg South High School, commonly known as “The Patriot”, which would allow the mascot to carry a musket on school grounds when the mascot is acting in his or her official capacity; and limiting the plenary power and authority of municipalities and their governing bodies to arrest, convict and punish any individual for carrying certain weapons.

    With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.

                             Respectfully submitted,

                               Robert H. Plymale,

                                 Chair.

    The bill (Com. Sub. for S. B. No. 327), under the original double committee reference, was then referred to the Committee on the Judiciary.

    Senator Stollings, from the Committee on Health and Human Resources, submitted the following report, which was received:

    Your Committee on Health and Human Resources has had under consideration

    Senate Bill No. 379, Authorizing Board of Registered Professional Nurses designate certain treatment and recovery programs.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 379 (originating in the Committee on Health and Human Resources)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-7-11a; and to amend said code by adding thereto a new article, designated §30-7E-1, §30-7E-2 and §30-7E-3, all relating generally to authorizing the West Virginia Board of Examiners for Registered Professional Nurses to designate programs in which persons regulated by the board may be monitored while they pursue treatment and recovery for alcohol abuse, chemical dependency or major mental illness; and enrolling on a voluntary basis without being subject to disciplinary action if the person complies with the goals and restrictions of the program.

    With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Government Organization.

                             Respectfully submitted,

                               Ron Stollings,

                                 Chair.

    The bill (Com. Sub. for S. B. No. 379), under the original double committee reference, was then referred to the Committee on Government Organization.

    Senator Palumbo, 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. 391, Relating to reduced utility rates for low-income residential customers.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 391 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §24-2A-1 of the Code of West Virginia, 1931, as amended, relating to reduced utility rates for low-income residential customers.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    On motion of Senator Palumbo, the bill (Com. Sub. for S. B. No. 391) contained in the foregoing report from the Committee on the Judiciary was referred to the Committee on Finance.

    Senator Palumbo, 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. 414, Expanding definition of "medical services applicant" under Volunteer for Nonprofit Youth Organizations Act.

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

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Palumbo, 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. 427, Conforming state administrative remedies for prisoners with Department of Justice standards.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 427 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §25-1A-2 of the Code of West Virginia, 1931, as amended, relating to administrative remedies for prisoners generally; defining administrative remedies; bringing law into federal compliance; and requiring that a prisoner first exhaust such remedies prior to resorting to litigation.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    Senator Palumbo, 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. 434, Providing suggestion and suggestee execution contain certain information.

    And reports back a committee substitute for same with the following title:

    Com. Sub. for Senate Bill No. 434 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §38-5-10 of the Code of West Virginia, 1931, as amended; and to amend and reenact §38-5A-3 of said code, all relating to proceedings in aid of execution on judgments; and providing that a suggestion and suggestee execution shall contain the date of birth and last four digits of the Social Security number of the judgment debtor.

    With the recommendation that the committee substitute do pass.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    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 K. Facemyer:

    Senate Bill No. 508--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §21-1A-3a, relating to participation in labor organization as condition of employment prohibited; and providing a penalty.

    Referred to the Committee on Labor; and then to the Committee on the Judiciary.

    By Senators Jenkins and Stollings:

    Senate Bill No. 509--A Bill to amend and reenact §33-45-2 of the Code of West Virginia, 1931, as amended, relating to fair business standards of an insurer; and requiring a health care insurance provider to include a provision in an insurance contract if claims must be submitted sooner than the Medicare requirement of three hundred sixty-five days.

    Referred to the Committee on Banking and Insurance; and then to the Committee on Health and Human Resources.

    By Senators Hall, McCabe, Wells, Palumbo and Plymale:

    Senate Bill No. 510--A Bill to amend and reenact §3-4A-28 of the Code of West Virginia, 1931, as amended, relating to amending recount procedures.

    Referred to the Committee on the Judiciary.

    By Senators Yost, Wells and Klempa:

    Senate Bill No. 511--A Bill to amend and reenact §6-7-2a of the Code of West Virginia, 1931, as amended, relating to the compensation of the Secretary of the Department of Veterans’ Assistance.

    Referred to the Committee on Government Organization; and then to the Committee on Finance.

    By Senators Palumbo and Beach:

    Senate Bill No. 512--A Bill to amend and reenact §17C-5A-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §17C-5C-4a and §17C-5C-4b, all relating to updating statutory provisions relating to procedures of the Office of Administrative Hearings; providing written objections to revocation notices may be filed by facsimile or e-mail; providing notices of hearing are sent to the parties and their legal counsel; providing that the Office of Administrative Hearings has subpoena authority; providing that parties may enforce Office of Administrative Hearings subpoenas in circuit court; providing that the Division of Motor Vehicles may serve subpoenas to law-enforcement officers by electronic mail; deleting language indicating that a notice of hearing sent by certified or registered mail to a law-enforcement officer constitutes a subpoena to appear; authorizing the Office of Administrative Hearings to propose legislative rules to implement the provisions of this article and to carry out the duties prescribed therein; and requiring persons with pending contested matters to provide notice of change of address.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.

    By Senators Tucker and Williams:

    Senate Bill No. 513--A Bill to amend and reenact §11-21-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §20-7-1 of said code, all relating to pension benefits exempt from state income taxation; and including Division of Natural Resources police into the class of law-enforcement officers exempted.

    Referred to the Committee on Pensions; and then to the Committee on Finance.

    Senator K. Facemyer offered the following resolution:

    Senate Resolution No. 22--Recognizing Kelsey Zuspan for her outstanding athletic and academic achievements.

    Whereas, Kelsey Zuspan is a member of the inaugural Wahama High School girls track team; and

    Whereas, Kelsey Zuspan, as a sophomore, excelled as an individual runner, earning 14 medals during the 2011 track season; and

    Whereas, Kelsey Zuspan led her team by winning the 2011 Class A state track championship in the 100 meter dash and 200 meter dash and placed fourth in the state in the 400 meter run; and

    Whereas, Kelsey Zuspan also holds the record at Point Pleasant Stadium for the 100 meter dash and received the high point award from Point Pleasant track meets twice; and

    Whereas, Not only has Kelsey Zuspan excelled on the track, but also in the classroom, maintaining a 4.0 grade point average and being named a National Honor Society member; and

    Whereas, Kelsey Zuspan has displayed her strong will and determination on and off the track and is a shining example of what can be accomplished through perseverance, dedication and spirit; and

    Whereas, Kelsey Zuspan’s leadership and hard work embodies what it means to be a West Virginian; therefore, be it

    Resolved by the Senate:

    That the Senate hereby recognizes Kelsey Zuspan for her outstanding athletic and academic achievements; and, be it

    Further Resolved, That the Senate extends its best wishes to Kelsey Zuspan on a bright future ahead; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Kelsey Zuspan.

    At the request of Senator K. Facemyer, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

    Thereafter, at the request of Senator Hall, and by unanimous consent, the remarks by Senator K. Facemyer regarding the adoption of Senate Resolution No. 22 were ordered printed in the Appendix to the Journal.

    On motion of Senator Unger, the Senate recessed for one minute.

    Upon expiration of the recess, the Senate reconvened and, at the request of Senator Unger, unanimous consent being granted, returned to the second order of business and the introduction of guests.

    The Senate proceeded to the seventh order of business.

    Senate Resolution No. 21, Expressing support for recycling.

    On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary.

    The Senate proceeded to the ninth order of business.

    Com. Sub. for Com. Sub. for Senate Bill No. 211, Creating traffic offenses for texting or using handheld wireless communication device while driving.

    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. 360, Granting personal property purchaser at foreclosure sale right of disposal with notice.

    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. 429, Relating to motor vehicle classifications.

    On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

    Senate Bill No. 436, Facilitating collaboration between public school and higher education systems to promote seamless curricula.

    On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

    Senate Bill No. 470, Requiring medical examination by member's physician for TRS disability annuity.

    On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

    Eng. Com. Sub. for House Bill No. 4078, Extending certain deadlines for mandated actions regarding higher education personnel.

    On second reading, coming up in regular order, was read a second time.

    The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:

    By striking out everything after the enacting clause and inserting in lieu thereof the following:

    That §18B-2A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18B-9A-9, all to read as follows:

ARTICLE 2A. INSTITUTIONAL BOARDS OF GOVERNORS.

§18B-2A-3. Supervision of governing boards; promulgation of rules.

    (a) The governing boards are subject to the supervision of the commission or the council, as appropriate, except in those instances where specific statutory exceptions are granted by law to the governing boards of Marshall University and West Virginia University.

    (b) The governing boards of all state institutions of higher education are subject to the provisions of law that relate to the administration of personnel matters including, specifically, articles seven, eight, nine and nine-a of this chapter and to rules promulgated and adopted in accordance with these provisions.

    (c) The Chancellor for Higher Education and the Chancellor for Community and Technical College Education, under the supervision of their respective boards, are responsible for the coordination of policies, purposes and rules of the governing boards and shall provide for and facilitate sufficient interaction among the governing boards and between the governing boards and the state Board of Education to meet the goals and objectives provided in the compacts and in section one-a, article one and article one-d of this chapter.

    (d) The governing boards and the state Board of Education shall provide all information requested by the commission and the council, whether the request is made separately or jointly, in an appropriate format and in a timely manner.

    (1) Each governing board shall cooperate with the West Virginia Network for Educational Telecomputing (WVNET) in designing appropriate interfaces with the databases of institutions under its jurisdiction and shall grant WVNET direct access to these databases.

    (2) WVNET, on behalf of the commission and/or council, shall generate reports from the data accessed for the purposes set forth in sections eight and ten, article one-d of this chapter.

    (3) All data accessed or received from an institution shall be treated in a manner consistent with the privacy protections outlined in section ten, article one-d of this chapter.

    (4) The commission may revoke the eligibility of a state institution to participate in any state financial aid program set forth in chapter eighteen-c of this code for failure to comply promptly and in an appropriate manner with the provisions of this section.

ARTICLE 9A. Classification and compensation

§18B-9A-9. Extension of deadlines and change of date for calculation of salary funding target.

    (a) The deadline of December 1, 2011, set out in subsection (a), section eight, article seven of this chapter, for an initial report on the progress in designing, developing, implementing and administering the personnel classification and compensation system for higher education is extended to December 1, 2012.

    (b) The deadline of October 1, 2011, set out in subsection (a), section nine, article seven of this chapter, for an initial human resources review of each higher education organization is extended to June 30, 2012.

    (c) The deadline of January 1, 2012, set out in section sixteen, article seven of this chapter, for a completion of a study of certain employment practices is extended to June 30, 2012.

    (d) The deadline of July 1, 2012, set out in subsection (g), section four of this article, to have up-to-date job descriptions for every classified position is extended to December 1, 2012.

    (e) The deadline of November 1, 2011, set out in section seven of this article, to propose emergency rules and legislative rules to implement the provisions of this article and articles seven, eight and nine of this chapter is extended to July 1, 2012.

    (f) The deadline of December 1, 2011, set out in subdivision five, subsection (b), section eight of this article, to report the findings of the necessity of a human resources information system is extended to June 30, 2012.

    (g) The date of October 2010, set out in subsection (c), section three, article nine of this chapter, for calculating the salary funding target, is changed to October 2011.

    The bill (Eng. Com. Sub. for H. B. No. 4078), as amended, was then ordered to third reading.

    The Senate proceeded to the tenth order of business.

    Com. Sub. for Senate Bill No. 191, Relating to personal safety orders.

    On first reading, coming up in regular order, was read a first time and ordered to second reading.

    Com. Sub. for Senate Bill No. 222, Creating criminal offense for interfering with emergency service call.

    On first reading, coming up in regular order, was read a first time and ordered to second reading.

    The Senate proceeded to the twelfth order of business.

    Remarks were made by Senator Stollings.

    Thereafter, at the request of Senator Foster, and by unanimous consent, the remarks by Senator Stollings were ordered printed in the Appendix to the Journal.

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate adjourned until Monday, February 6, 2012, at 1 p.m.

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