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Senate Journal


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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

REGULAR SESSION, 2014

FIFTY-NINTH DAY

____________

Charleston, W. Va., Friday, March 7, 2014

    The Senate met at 11 a.m.

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

    Prayer was offered by Pastor Bob McKinney, Retired United Methodist Clergy serving McDowell County, Welch, West Virginia.

    Pending the reading of the Journal of Thursday, March 6, 2014,

    On motion of Senator Chafin, 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 Senate then proceeded to the third order of business.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of

    Eng. Com. Sub. for Senate Bill No. 387, Clarifying duly authorized officers have legal custody of their prisoners while in WV.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of

    Eng. Senate Bill No. 394, Redesignating Health Sciences Scholarship Program as Health Sciences Service Program.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of

    Eng. Senate Bill No. 456, Extending expiration date for health care provider tax on eligible acute care hospitals.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of

    Eng. Senate Bill No. 558, Finding and declaring certain claims against state.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of

    Eng. Com. Sub. for Senate Bill No. 600, Relating to municipal ordinance compliance regarding dwellings unfit for habitation and vacant buildings and properties.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of

    Eng. Com. Sub. for Senate Bill No. 602, Requiring health care providers wear ID badges.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Com. Sub. for Senate Concurrent Resolution No. 15, Requesting DOH name bridge on Rt. 2, Cabell County, "U. S. Army PFC Homer 'Clyde' Farley and U. S. Army PFC Max O. Farley Memorial Bridge".

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Com. Sub. for Senate Concurrent Resolution No. 17, Requesting DOH name bridge in Greenbrier County "U. S. Army Sgt. James Lee Holcomb Memorial Bridge".

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Com. Sub. for Senate Concurrent Resolution No. 19, Requesting DOH name bridge in Lincoln County "U. S. Army Sergeant Paul Norman Chapman Memorial Bridge".

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Senate Concurrent Resolution No. 20, Recognizing value and importance of state's innovation industry.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Senate Concurrent Resolution No. 21, Requesting DOH name bridge in Raleigh County "U. S. Army PFC Shelby Dean Stover Memorial Bridge".

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Senate Concurrent Resolution No. 27, Urging President and Congress establish provisions to prevent and respond to chemical spills in state and national waters.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of

    Com. Sub. for Senate Concurrent Resolution No. 44, Requesting DOH name bridge in Marion County "Sheriff Junior Slaughter Memorial Bridge".

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect July 1, 2014, of

    Eng. Com. Sub. for House Bill No. 4012, Relating to the Revised Uniform Law on Notarial Acts.

    A message from The Clerk of the House of Delegates announced that that body had agreed to the changed effective date to take effect from passage, of

    Eng. House Bill No. 4154, Fixing a technical error relating to the motor fuel excise tax.

    A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to

    Eng. Com. Sub. for House Bill No. 4236, Sexual assault nurse examination network.

    On motion of Senator Unger, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.

    Whereupon, Senator Kessler (Mr. President) appointed the following conferees on the part of the Senate:

    Senators Kirkendoll, Cookman and Carmichael.

    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 that that body had agreed to the changed effective date to take effect from passage, of

    Eng. Com. Sub. for House Bill No. 4287, Administration of health maintenance tasks.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of

    Eng. House Bill No. 4302, Relating to elections for public school purposes.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of

    Eng. Com. Sub. for House Bill No. 4392, Regulating persons who perform work on heating, ventilating and cooling systems and fire dampers.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of

    Eng. Com. Sub. for House Bill No. 4393, Creating the Dangerous Wild Animals Act.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, of

    Eng. Com. Sub. for House Bill No. 4496, Providing for the allocation of matching funds from future moneys deposited into the West Virginia Research Trust Fund.

    A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to

    Eng. House Bill No. 4619, Authorizing innovation school districts.

    On motion of Senator Unger, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.

    Whereupon, Senator Kessler (Mr. President) appointed the following conferees on the part of the Senate:

    Senators Wells, Beach and Jenkins.

    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, to take effect from passage, and requested the concurrence of the Senate in the passage of

    Eng. House Bill No. 4621--A Bill expiring funds to the balance of the Department of Administration, Board of Risk and Insurance Management, Patient Injury Compensation Fund, fund 2371, fiscal year 2014, organization 0218, in the amount of $2,000,000 from the Department of Administration, Board of Risk and Insurance Management, Medical Liability Fund, fund 2368, fiscal year 2014, organization 0218 for the fiscal year ending June 30, 2014.

    At the request of Senator Unger, 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.

    On motion of Senator Unger, 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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    The bill was read a second time and ordered to third reading.

    Having been engrossed, the bill (Eng. H. B. No. 4621) was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4621) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (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. H. B. No. 4621) takes effect from passage.

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

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

    Com. Sub. for House Concurrent Resolution No. 36, Army Sergeant Billy E. Vinson Memorial Bridge.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

    Com. Sub. for House Concurrent Resolution No. 69, U.S. Army Corporal John L. Gibbs Memorial Bridge

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

    Com. Sub. for House Concurrent Resolution No. 70, U. S. Army Sgt. Matthew D. Hunter Memorial Bridge.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

    Com. Sub. for House Concurrent Resolution No. 73, U.S. Army Captain David Van Camp Memorial Bridge.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

    House Concurrent Resolution No. 75, Army SPC 4 Marvin Dewayne Canterbury Memorial Highway.

    A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the adoption as amended, of

    Com. Sub. for House Concurrent Resolution No. 76, Army PFC Richard Lee Lakin Memorial Bridge.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 85--Requesting the Joint Committee on Government and Finance to schedule the October, 2014, Legislative Interim Committee meetings in Morgantown.

    Referred to the Committee on Rules.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 90--Requesting the West Virginia Department of Education and the School Building Authority to build the needed and long overdue athletic facilities at Tug Valley High School.

    Referred to the Committee on Education.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 94--Designating April 2 as West Virginia Autism Awareness Day.

    Referred to the Committee on Government Organization.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 96--Requesting the Joint Committee on Government and Finance study policies ensuring that licensed athletic trainers are available during practices and games to all interscholastic student athletes in West Virginia.

    Referred to the Committee on Education; and then to the Committee on Rules.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 100--Requesting the Joint Committee on Government and Finance study ways to improve the efficiency of and find other cost saving measures within the West Virginia Division of Highways to continue its ability to function at top levels in the face of demanding financial circumstances.

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

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 102--Urging the West Virginia Division of Natural Resources to continue indefinitely its regulatory policy of permitting only bow hunting during designated deer hunting seasons in Logan, McDowell, Mingo and Wyoming counties.

    Referred to the Committee on Natural Resources.

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 106--Requesting the Joint Committee on Government and Finance conduct a study concerning the potential implementation of a Deferred Retirement Option Plan for troopers and employees of the West Virginia State Police.

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

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 108--Requesting the Joint Committee on Government and Finance authorize a study on repealing unnecessary or obsolete boards, councils, committees, panels, task forces and commissions.

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

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 109--Requesting the Joint Committee on Government and Finance authorize a study on the State Athletic Commission.

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

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 117--Requesting the Joint Committee on Government and Finance authorize a study on continuing the Office of Emergency Medical Services as an independent office within the Department of Military Affairs and Public Safety.

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

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 118--Requesting the Joint Committee on Government and Finance to study the allocation of behavioral health spending on community-based support services.

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

    A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of

    House Concurrent Resolution No. 119--Requesting the Joint Committee on Government and Finance to study the authorization of cities and municipalities to provide a private-public financing option for small businesses and commercial property owners in West Virginia to improve energy efficiency and reduce business costs and examine solutions to barriers in energy efficiency upgrades.

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

    The Senate proceeded to the fourth order of business.

    Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:

    Your Committee on Government Organization has had under consideration

    House Concurrent Resolution No. 40, Designating "Take Me Home Country Roads" an official state song.

    And reports the same back with the recommendation that it be adopted.

                             Respectfully submitted,

                               Herb Snyder,

                                 Chair.

    At the request of Senator Snyder, unanimous consent being granted, the resolution (H. C. R. No. 40) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.

    The question being on the adoption of the resolution, the same was put and prevailed.

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

    Thereafter, at the request of Senator Sypolt, and by unanimous consent, the remarks by Senator Cole regarding the adoption of House Concurrent Resolution No. 40 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 proceeded to the sixth order of business.

    Senators Stollings, Yost and D. Hall offered the following resolution:

    Senate Concurrent Resolution No. 92--Requesting the Joint Committee on Government and Finance instruct the Joint Committee on Health to study the benefits and costs of direct reimbursement rates paid by the Bureau for Medical Services for mental health therapy services that have been provided by Master’s-prepared, independently licensed mental health therapists.

    Whereas, Mental health therapy services offered for the prevention, early intervention and treatment of mental health, behavioral health, substance abuse and emotional conditions and disorders are an effective and recognized course of treatment; and

    Whereas, It is anticipated that improved access to quality mental health therapy by Master’s-prepared, independently licensed mental health therapists can effectively address, reduce and eliminate many of the most pressing health, social and behavioral problems facing West Virginia; and

    Whereas, There are a myriad of conditions and individuals relative to mental and behavioral health which will benefit from Master’s-prepared, independently licensed mental health therapists. These conditions and persons include post-traumatic stress and traumatic brain injury patients, family dysfunction and dissolution, children in the foster care system, juvenile delinquents, substance abuse, truancy, domestic violence and incarcerated individuals; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Joint Committee on Government and Finance is hereby requested to instruct the Joint Committee on Health to study the benefits and costs of direct reimbursement rates paid by the Bureau for Medical Services for mental health therapy services that have been provided by Master’s-prepared, independently licensed mental health therapists; and, be it

    Further Resolved, That the Joint Committee on Health report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

    Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriates to the Joint Committee on Government and Finance.

    Which, under the rules, lies over one day.

    Senators Stollings and Yost offered the following resolution:

    Senate Concurrent Resolution No. 93--Requesting the Joint Committee on Government and Finance study the effects of using tanning beds and their relationship with cancer.

    Whereas, The Centers for Disease Control states that the use of indoor tanning has been linked with skin cancers, including melanoma, squamous cell carcinoma and cancers of the eye; and

    Whereas, The use of a tanning bed exposes users to both UVA and UVB rays, which damage the skin and may lead to cancer; and

    Whereas, Using tanning beds also increases the risk of wrinkles and eye damage and changes skin texture; and

    Whereas, Further study is requested to ensure that all who use tanning beds understand the risks when making the decision to tan; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Joint Committee on Government and Finance is hereby requested to study the effects of using tanning beds and their relationship with cancer; and, be it

    Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

    Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

    Which, under the rules, lies over one day.

    Senators Boley, Barnes, Blair, Carmichael, Cole, M. Hall, Jenkins, Nohe, Sypolt and Walters offered the following resolution:

    Senate Concurrent Resolution No. 94--Requesting the Joint Committee on Government and Finance study the impact of the Common Core State Standards on public education in West Virginia.

    Whereas, The West Virginia Legislature has made student achievement in West Virginia public schools a priority and devoted great time and resources to improving student achievement; and

    Whereas, Educators throughout West Virginia have expressed concern about the potential impact of the Common Core State Standards on public education in West Virginia; and

    Whereas, The West Virginia Legislature and educators throughout the State of West Virginia share the objective of developing and enacting sound educational policies that advance the shared goal of greater student achievement; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Joint Committee on Government and Finance is hereby requested to study the impact of the Common Core State Standards on public education in West Virginia; and, be it

    Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the Common Core State Standards and the appropriate use of the Common Core State Standards by public schools in West Virginia; and, be it

    Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

    Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

    Which, under the rules, lies over one day.

    Senators Cann, Boley, Wells, Kessler (Mr. President), Plymale, Stollings, Jenkins and D. Hall offered the following resolution:

    Senate Resolution No. 51--Recognizing the Louis A. Johnson VA Medical Center for its commitment to excellence in providing care to our veterans.

    Whereas, The Louis A. Johnson VA Medical Center (LAJVAMC), named after Louis A. Johnson, Secretary of Defense for the Truman Administration, is located adjacent to the Veterans Memorial Park and the West Virginia State Nursing Facility in Clarksburg, West Virginia, and was initially dedicated on December 7, 1950, and enhanced with a clinical addition in 1989; and

    Whereas, The LAJVAMC is a Level II complexity facility, serving a veteran population of approximately seventy thousand in North Central West Virginia and neighboring counties in Pennsylvania, Ohio and Maryland; and

    Whereas, The LAJVAMC provides inpatient services such as acute medicine, surgery, acute psychiatry, Substance Abuse Residential Rehabilitation Treatment Program (SARRTP), PTSD Residential Rehabilitation Program (PRRP), Psychosocial Residential Rehabilitation Treatment Program (PRRTP) and nursing home care; and

    Whereas, The LAJVAMC provides outpatient services such as ambulatory surgery, audiology, cardiology, dental, dermatology, diabetes, ENT, gastroenterology, general internal medicine, general surgery, gynecology, hematology/oncology, infectious disease, nephrology, nutrition, occupational therapy, ophthalmology, optometry, pain, physical therapy, podiatry, primary care, prosthetics, behavioral medicine (including substance abuse, telepsychiatry, PTSD, etc.) pulmonology, recreation therapy, rheumatology, social work, speech pathology, urology and vascular surgery; and

    Whereas, The LAJVAMC hosts several Programs of Excellence which have received local, state and national recognition including the Community and Rural Healthcare Program, the Women’s Healthcare Program, the Tele-Health Program and the Homeless Commission on Accreditation of Rehabilitative Facilities; and

    Whereas, From providing the most advanced medical care to providing valet parking upon arrival, the LAJVAMC provides an standard of care and an attention to detail that is unmatched by most; and

    Whereas, The unparalleled dedication and commitment of the staff and management at the LAJVAMC, who strive everyday to give veterans the care and attention they have earned, is what makes this VA one of the best in the United States; therefore, be it

    Resolved by the Senate:

    That the Senate hereby recognizes the Louis A. Johnson VA Medical Center for its commitment to excellence in providing care to our veterans; and

    Further Resolved, That the Senate acknowledges and appreciates the staff and management at the Louis A. Johnson VA Medical Center for their dedicated public service; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Louis A. Johnson VA Medical Center.

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

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

    Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

    Senators Green, D. Hall, Wells, Kessler (Mr. President), Plymale, Stollings, Yost and Jenkins offered the following resolution:

    Senate Resolution No. 52--Memorializing the life of Jeffrey S. Taylor, a native of Midway, West Virginia, who gave his life in defense of his country.

    Whereas, Jeffrey S. Taylor spent his first eighteen years in Midway, West Virginia, where he graduated from Independence High School in Coal City; and

    Whereas, Jeffrey S. Taylor enlisted in the U. S. Navy on June 20, 1994, and completed basic training in Great Lakes, Illinois, in August, 1994. He was also a graduate of Field Medical Service School in Camp Lejeune, North Carolina, and became a Navy SEAL following Underwater Demolition/SEAL Training in Coronado, California; and

     Whereas, Jeffrey S. Taylor was also a Basic Airborne and Military Freefall Parachute School graduate, and in addition to SEAL Team Ten, his previous duty stations include the Navy Medical Center, Portsmouth, the 2nd Marine Division, Camp Lejeune, North Carolina, SEAL Team Eight and USS Theodore Roosevelt (CVN 71); and

    Whereas, Sadly, Hospital Corpsman First Class Jeffrey S. Taylor died June 28, 2005, while conducting combat operations in Afghanistan. He was killed when the MH-47 Chinook helicopter he was aboard crashed into the rugged mountains of eastern Afghanistan. The helicopter was en route to provide support to troops on the ground when it was shot down by enemy forces. He was assigned to SEAL Team Ten, Virginia Beach; and

    Whereas, Hospital Corpsman First Class Jeffrey S. Taylor’s military awards include the Bronze Star with Combat “V” for Valor, Purple Heart, Navy Commendation Medal with Combat “V” for Valor, Navy and Marine Corps Achievement Medal, Combat Action Ribbon, Afghanistan Campaign Medal, posthumously, Presidential Unit Citation, Navy Unit Commendation (2), Meritorious Unit Commendation, Navy “E” Ribbon, Good Conduct Ribbon (4), Navy Fleet Marine Force Medal, Armed Forces Expeditionary Medal, National Defense Service Medal (2), Global War on Terrorism Service Medal and Sea Service Deployment Ribbon (3) as well as numerous other personal and command awards; and

    Whereas, Hospital Corpsman First Class Jeffrey S. Taylor left behind a host of family and friends to cherish his memory, including his wife Erin (Banghart) Taylor of Virginia Beach; his mother, Gail Bowman of Beckley, West Virginia; brother, Brandon Eston Cox of Wichita; his stepfather, Jim Bowman; four stepbrothers, James Gregory Bowman, Jay Patrick Bowman, Kelly Dale Bowman and Carl Dayton Bowman, all of Beckley; his father, John Taylor, stepmother, Cheryl Gwinn Taylor, and his half-brothers, Justin Alex Taylor and Josh David Taylor, all of Rainelle, West Virginia; his maternal grandmother, Manda Elizabeth Birchfield; and a paternal grandmother, Lucille Taylor Smith; and

    Whereas, It is fitting that today we honor the life of Hospital Corpsman First Class Jeffrey S. Taylor, who made the ultimate sacrifice for his country; therefore, be it

    Resolved by the Senate:

    That the Senate hereby memorializes the life of Jeffrey S. Taylor, a native of Midway, West Virginia, who gave his life in defense of his country; and, be it

    Further Resolved, That the Senate expresses its most sincere condolences to the family of Hospital Corpsman First Class Jeffrey S. Taylor; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of Hospital Corpsman First Class Jeffrey S. Taylor.

    Which, under the rules, lies over one day.

    At the request of Senator Unger, unanimous consent being granted, the Senate returned to the fourth order of business.

    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 Concurrent Resolution No. 95 (originating in the Committee on Health and Human Resources)--Requesting the Legislative Oversight Commission on Health and Human Resources Accountability to study the necessity and improvement of long-term care planning in West Virginia.

    Whereas, The baby boomer generation is coming of age to retire and it is important to examine the entire spectrum of long term care which both addresses the current and future plans of West Virginia to care for our senior citizens; and

    Whereas, West Virginia seemingly has no long-range plan to deal with this wave of retiring and aging citizens; and

    Whereas, The “baby boomer tsunami” is a reality. According to the U. S. Census Bureau, there are more than seventy-seven million boomers in the United States and by 2030, this demographic (born between 1946 and 1964) will represent an estimated twenty percent of the population. This means more than ten thousand baby boomers will turn sixty-five every day for the next sixteen years; and

    Whereas, West Virginia’s senior population presents an even greater challenge since West Virginia is second only to Florida in the average age of its population; and

    Whereas, This is not only a statewide issue. There are seniors who are awaiting services in certain geographic areas where the availability of services differs simply due to location; and

    Whereas, Services provided by county aging programs and their delivery areas are limited by the funding available to meet the needs of the retiring population; and

    Whereas, There is a severe need for more resources and placement options for West Virginia’s aging population. Some states have Medicaid paid group homes and/or assisted living facilities that West Virginia does not have.  There would be a need for specialized adult family care providers, who would specialize in working with often difficult elderly consumers, which West Virginia cannot currently meet; and

    Whereas, Our existing infrastructure is already stretched beyond capacity and an aging population is only going to continue to overload an already overburdened system; and

    Whereas, West Virginia needs to explore options and develop a long and short-range plan to address the needs of our aging population by addressing such areas as: Continuum of long-term care service strategies, exploration of strategies being employed by other states, technical assistance from the Center for Medicare and Medicaid Services and other Federal agencies, payment formula and fiscal analysis which impact of aging population, provider availability by region and workforce availability by region; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Legislative Oversight Commission on Health and Human Resources Accountability is hereby requested to study the necessity and improvement of long-term care planning in West Virginia; and, be it

    Further Resolved, That the Legislative Oversight Commission on Health and Human Resources Accountability report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

    Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

    And,

    Senate Concurrent Resolution No. 96 (originating in the Committee on Health and Human Resources)--Requesting the Joint Committee on Health to conduct a study on the cost of emergency transportation and billing practices of air-ambulance companies operating in West Virginia.

    Whereas, Families are occasionally faced with the difficult decision of having to hire an air ambulance to transport their loved ones in cases of severe and immediate medical emergencies; and

    Whereas, The emotional toll of dealing with a family member whose medical condition is so intense and extreme can cause people to lose sight of anything except caring for their loved one; and

    Whereas, In situations where a need arises that requires a loved one to be transported via helicopter to a health care facility where they can receive needed and often life-saving medical attention, the cost of the transport is not the first consideration when making arrangements for the transport; and

    Whereas, Air-transportation vendors who are not participants in an insured plan but who transport a plan member or plan member’s family member often submit requests for payment well beyond what is felt to be reasonable and necessary; and

    Whereas, These bills present a burden to families who, upon receipt, attempt to make arrangements to negotiate the rate but find that once the service has been rendered that the air-transportation company is reluctant to negotiate a reduction in the charge; and

    Whereas, Striking a balance between a reimbursement rate that families can afford to pay and a reasonable fee for service that provides air-transportation operators a respectable profit is a difficult endeavor; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Joint Committee on Health is hereby requested to conduct a study on the cost of emergency transportation and billing practices of air-ambulance companies operating in West Virginia; and, be it

    Further Resolved, That the Joint Committee on Health report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

    Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

    And reports the same back with the recommendation that they each be adopted.

                             Respectfully submitted,

                               Ron Stollings,

                                 Chair.

    At the request of Senator Stollings, unanimous consent being granted, the resolutions (S. C. R. Nos. 95 and 96) contained in the preceding report from the Committee on Health and Human Resources were taken up for immediate consideration.

    On motion of Senator Stollings, the resolutions were referred to the Committee on Rules.

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

    Your Committee on Education has had under consideration

    Senate Concurrent Resolution No. 97 (originating in the Committee on Education)--Requesting the Joint Committee on Government and Finance study the governance of the West Virginia Secondary School Activities Commission.

    Whereas, The West Virginia Secondary School Activities Commission is incorporated, with the consent of the State Board of Education, as a nonprofit, nonstock corporation; and

    Whereas, The West Virginia Secondary School Activities Commission is composed of the principals, or their representatives, of those secondary schools whose county boards of education have certified in writing to the State Superintendent of Schools that they have elected to delegate the control, supervision and regulation of their interscholastic athletic events and band activities of the students in the public secondary schools in their respective counties to the commission; and

    Whereas, The West Virginia Secondary School Activities Commission was in existence for fifty-one years before the enactment of West Virginia Code §18-2-25, which allows the county boards of education to delegate the control, supervision and regulation of interscholastic athletic events and band activities to the West Virginia Secondary School Activities Commission; and

    Whereas, West Virginia Code §18-2-25 has not been amended since 1967; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Joint Committee on Government and Finance is hereby requested to study the governance of the West Virginia Secondary School Activities Commission; and, be it

    Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

    Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

    And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

                             Respectfully submitted,

                               Robert H. Plymale,

                                 Chair.

    At the request of Senator Plymale, unanimous consent being granted, the resolution (S. C. R. No. 97) contained in the preceding report from the Committee on Education was taken up for immediate consideration.

    On motion of Senator Plymale, the resolution was referred to the Committee on Rules.

    The Senate proceeded to the seventh order of business.

    Senate Concurrent Resolution No. 85, Requesting Joint Legislative Oversight Commission on State Water Resources study water infrastructure.

    On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Natural Resources; and then to the Committee on Rules.

    Senate Concurrent Resolution No. 86, Requesting School Building Authority waive matching requirements and fund needed improvements for School for Deaf and Blind.

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

    Senate Concurrent Resolution No. 87, Requesting Joint Committee on Government and Finance study behavioral health spending on community-based support services.

    On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Health and Human Resources; and then to the Committee on Rules.

    Senate Resolution No. 43, Memorializing life and public service of James Howard "Buck" Harless.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    At the request of Senator Chafin, 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 Miller, and by unanimous consent, the remarks by Senators Chafin, Plymale, McCabe and Kirkendoll regarding the adoption of Senate Resolution No. 43 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 resumed business under the seventh order.

    Com. Sub. for House Concurrent Resolution No. 17, The "Captain Isaac Alt West Virginia Militia Memorial Bridge".

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page two, in the Resolved clause, by striking out the words “Captain Isaac Alt West Virginia Militia” and inserting in lieu thereof the words “West Virginia Militia Captain Isaac Alt”;

    On page two, in the first Further Resolved clause, by striking out the words “Captain Isaac Alt West Virginia Militia” and inserting in lieu thereof the words “West Virginia Militia Captain Isaac Alt”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 17--Requesting the Division of Highways to name the bridge locally known as the North Mill Creek Bridge on Route 220, Pendleton County, bridge number 36-220-32.32 (36A166), as the “West Virginia Militia Captain Isaac Alt Memorial Bridge”.

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 17), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 28, William S Croaff Memorial Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page two, in the Resolved clause, before the word “William” by inserting the words “U. S. Army PFC”;

    On page two, in the first Further Resolved clause, before the word “William” by inserting the words “U. S. Army PFC”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 28--Requesting the Division of Highways to name bridge number 30-49-0.01 (30A056) on Route 49 in Mingo County, the "U. S. Army PFC William S. (Bill) Croaff Memorial Bridge".

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 29), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 34, Marine Private Rudy Varney Bridge, Purple Heart Recipient.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

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

    Whereas, USMC Private Varney served as a Marine in the Vietnam War, receiving a Purple Heart for wounds sustained on April 14, 1968, in the Battle of Khe Sahn; and

    Whereas, USMC Private Varney returned to America after the Vietnam War and dedicated his life to serving veterans from Southern West Virginia, establishing and assuming roles of leadership in numerous programs to include the Commander of the local chapter of the Vietnam Veterans of America for over twenty years and has served in leadership positions on numerous other veterans organizations as well; and

    Whereas, USMC Private Varney was assigned to the Governor’s Council for Veterans Issues across West Virginia; and

    Whereas, USMC Private Varney served as a Veterans driver for years transporting countless veterans to and from appointments at the Veterans Administration Hospitals across the state to ensure all veteran issues were addressed; and

    Whereas, USMC Private Varney is solely responsible for the survival and success of the Henlawson Veterans Center, working to establish programs and opportunities that have assisted countless veterans over the past three decades; and

    Whereas, USMC Private Varney has served on numerous veteran boards, committees and panels established by past governors, elected officials and key veteran leaders to address veterans issues such as homelessness and the creation of veteran graveyards across Southern West Virginia; and

    Whereas, USMC Private Varney has worked closely with the Logan Empowerment, Action and Development Community Organization on events such as Operation Santa and Operation Clean Sweep and the Homeless Count to assist those in need, set an example for others to follow and made Logan a better place to live; and

    Whereas, It is fitting that an enduring testament be established to recognize this native son who has so ably served his state and his country; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Division of Highways is hereby requested to name bridge number 23-10-22.06 (23A040) on Route 10 in Logan County, West Virginia, the “USMC Private Rudy Varney Bridge”; and, be it

    Further Resolved, That the Commissioner of the Division of Highways is hereby requested to erect signs at both ends of the bridge containing bold and prominent letters proclaiming the bridge the “USMC Private Rudy Varney Bridge”; and, be it

    Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Commissioner of the Division of Highways and Rudy Varney.;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 34--Requesting that bridge number 23-10-22.06 (23A040) on Route 10 in Logan County, West Virginia, be named the “USMC Private Rudy Varney Bridge".

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 34), as amended, the same was put and prevailed.

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

    House Concurrent Resolution No. 49, Army PFC Lilborn Dillon Memorial Road.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page two, in the Resolved clause, before the word “Army” by inserting “U. S.”;

    On page two, in the first Further Resolved clause, before the word “Army” by inserting “U. S.”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    House Concurrent Resolution No. 49--Requesting that the 0.2 mile of roadway beginning at the Crawley Creek exit off Route 119/27 at Chapmanville in Logan County, West Virginia, and ending at Route 3 be named the “U. S. Army PFC Lilborn Dillon Memorial Road”.

    The question being on the adoption of the resolution (H. C. R. No. 49), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 52, Kennenth A. Chapman Sr. Memorial Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

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

    Whereas, Kenneth A. Chapman was born September 17, 1956, a son of the late Clarence and Pearl Chapman; and

    Whereas, Kenneth A. Chapman was raised on Maple Fork Road in Raleigh County along with his ten brothers and two sisters; and

    Whereas, Kenneth A. Chapman was a third generation coal miner who followed his father and grandfather into the mines; and

    Whereas, Kenneth A. Chapman was tragically killed on April 5, 2010, along with 28 other miners in the Upper Big Branch mine explosion; and

    Whereas, Kenneth A. Chapman was a devoted family man who always had a smile on his face, and who enjoyed hunting, fishing and working in his garden; and

    Whereas, Kenneth A. Chapman was preceded in death by three brothers, Billy, Robert, and Clarence Chapman, and two sisters-in-law, Carol Chapman and Joyce Chapman; and those left to cherish his loving memory include his wife, Laura Chapman; children by his first marriage, Donna Griffith and husband, Matthew, Vicky Williams and husband, Richard, Kenny Chapman, Jr. and wife, Deniese; a son by his second marriage, Michael Austin Chapman; his other children, Jason McMillion, Carol Massey, and Jubal McMillion and wife, Sarah; brothers and sisters, Charles Chapman and wife, Grace, Glen Chapman and wife, Judy, Dennis Chapman and wife, Gaye, Henry Chapman and wife, Theresia, Larry Chapman and wife, Betty, Linda Frye and husband, Ronnie, Breanda Bailey and husband, Glenn, Jimmy Chapman and wife, Brenda, Ronnie Chapman and wife, Lisa; and numerous grandchildren, nieces, nephews and extended family; and

    Whereas, Kenneth A. Chapman not only loved his family, he loved his job because it was in his blood and he felt like he was making a contribution to "help keep the lights on" for all of us; and

    Whereas, It is only fitting that we name this bridge on Maple Fork Road to honor Kenneth A. Chapman, where he lived all his life and is now buried; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Division of Highways is hereby requested to name bridge number 41-1-24.51 (41A009) on Maple Fork Road where it connects with Cirtsville Road in Raleigh County, the “Kenneth A. Chapman 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 “Kenneth A. Chapman Memorial Bridge”; and, be it

    Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation and to Kenneth A. Chapman's sister, Breanda Chapman Bailey, and family.;

    And

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 52--Requesting the Division of Highways to name bridge number 41-1-24.51 (41A009) on Maple Fork Road where it connects with Cirtsville Road in Raleigh County, the "Kenneth A. Chapman Memorial Bridge".

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 52), as amended, the same was put and prevailed.

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

    House Concurrent Resolution No. 59, Urging the Governor to direct the Bureau of Senior Services to issue a report on the needs for in-home care.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

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

    Whereas, The rate of disability in West Virginia is the highest in the country; and

    Whereas, Almost all older adults and people with disabilities who need assistance with activities of daily living want to remain in their homes and communities; and

    Whereas, Providing services and supports to both people with disabilities and people who are aging in their homes and communities is generally much less expensive than nursing home care; and

    Whereas, The population of older adults and people with disabilities in West Virginia is over 800,000 and is expected to continue to increase and is projected to increase; and

    Whereas, The increasing population of older adults and people with disabilities will demand the availability of more services and supports to enable people to remain in their own homes and communities; and

    Whereas, To successfully address the surging population of older adults and people with disabilities who have significant needs for long-term services and supports, the state must develop methods to encourage and support families to assist their disabled relatives and develop ways to recruit and retain a qualified, responsive in-home care workforce; and

    Whereas, A comprehensive approach to policy in this area is an urgent need, and must be built on effective partnerships and coordinated to achieve the greatest impact from available resources; and

    Whereas, The existing system is over forty years old and cannot be sustained without creative new approaches and solutions to the expanding needs with consideration of limited resources and existing programs; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Joint Committee on Government and Finance is hereby requested to conduct a study of the future needs of people with disabilities; and, be it

    Further Resolved, That the Joint Committee on Government and Finance shall report to the regular session of the Legislature, 2015, on its findings, conclusions and recommendations together with drafts of any proposed legislation necessary to effectuate such recommendations; and, be it

     Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    House Concurrent Resolution No. 59--Requesting the Joint Committee on Government and Finance study eldercare and disability care to better meet the needs of West Virginians of all backgrounds.

    The question being on the adoption of the resolution (H. C. R. No. 59), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 60, Lester W. 'Cappy' Burnside, Jr. Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendment to the resolution, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:

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

     Whereas, Lester W. "Cappy" Burnside, Jr. was born in Clarksburg in January 1934; his parents were the late Lester W. Burnside and Louise Nowery Burnside. He graduated from Greenbrier Military School, Lewisburg, and West Virginia University; and

     Whereas, Lester W. "Cappy" Burnside, Jr. served in the U. S. Army and retired as a Captain in the U. S. Army Reserve; and

     Whereas, In January 1990, Senator Robert C. Byrd announced that the FBI Identification Division would relocate to West Virginia, in order to implement the Automated Fingerprint Identification System (AFIS), a new computer system to identify fingerprints in a matter of minutes. Just as Cappy Burnside was taking office as President of Harrison 2000, a new economic development initiative, the organization learned that FBI teams would be looking in several counties for a possible site for the facility; and

     Whereas, Cappy Burnside then promptly organized an FBI property committee, began discussions with property owners, evaluated utility extensions to each potential site in Harrison County and established personal relationships with FBI officials. Each of these efforts contributed to the final chemistry for a successful project. By late June, FBI officials asked Harrison 2000 to option 1000 acres adjacent to I-79 by August 1 of that year; and

      Whereas, For a year and a half, Cappy Burnside put aside many of his duties with his business and most of his time for leisure with his family to concentrate on securing the FBI project for Harrison County. He worked arduously and meticulously during this time to accomplish numerous FBI requirements; and

     Whereas, Twenty years after these events, Route 279 (Jerry Dove Exit 124), has opened an entire area for development resulting in Charles Pointe, White Oaks, and United Hospital Center and further economic development and well-being of Harrison County; and

     Whereas, Cappy Burnside has participated in many community groups including: Association of Industrial Development: Board of Directors; Clarksburg Industrial Development Corporation: President, 1989-1990; Boy Scouts of America, Central West Virginia Council: Board of Directors; North Bend Rails to Trails Foundation: Advisory Board; American Society of Highway Engineers, Central West Virginia Chapter: President, 1989; Mon Valley Tri-State Network; Clarksburg Planning and Zoning Commission: Member; Salvation Army Advisory Board; Clarksburg Kiwanis Club: President 1969-1970. Until 2006, he was a board member of the Friends of West Virginia Public Radio, having also served as chair in 1995 and then as treasurer; and

     Whereas, He was president and treasurer of Consolidated Supply Company until he closed the business in 1992 and, in recent years, he was a consultant to building supply firms specializing in materials for highways and bridges; and

     Whereas, Naming a bridge on Route 279 for Cappy Burnside is an appropriate recognition of his contributions to the economic development and well-being of Harrison County; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Division of Highways is hereby requested to name the bridge on Route 279 between the FBI CJIS Division and Route 50 crossing Interstate 79, bridge number 17-279-1.66 (17A314), in Harrison County (Jerry Dove Exit 124), the "Lester W. “Cappy” Burnside, Jr. Bridge"; and, be it

    Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Lester W. “Cappy” Burnside, Jr. Bridge"; and, be it

    Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Secretary of the Department of Transportation and Lester W. “Cappy” Burnside, Jr. and his family.

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 60), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 64, SSG Earl F Brown Memorial Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page two, in the Resolved clause, line eleven, by striking out the words “SSG Earl F. (Fred) Brown” and inserting in lieu thereof the words “U. S. Army SSG Earl F. “Fred” Brown”;

    On page two, in the first Further Resolved clause, line fifteen, by striking out the words “SSG Earl F. (Fred) Brown” and inserting in lieu thereof the words “U. S. Army SSG Earl F. “Fred” Brown”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 64--Requesting that bridge number 21-33-22.22 near the Weston exit off I-79, and 0.09 miles west of the junction of county 119/21, locally known as Sauls Run W-Beam Bridge, crossing over Stonecoal Creek, Bars numbers 21A094 and 21A153, in Lewis County, West Virginia, be named the “U. S. Army SSG Earl F. “Fred” Brown Memorial Bridge”.

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 64), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 65, Army SP4 Harold "Skip" Grouser Memorial Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page one, in the fifth Whereas clause, by striking out the word “unknowingly”;

    On page two, in the Resolved clause, before the word “Army” by inserting “U. S.”;

    On page two, in the first Further Resolved clause, before the word “Army” by inserting “U. S.”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 65--Requesting that bridge number 40-25/2-0.13 (40A153) on 40th Street and near 2nd Avenue in Nitro, Putnam County, West Virginia, the "U. S. Army SP4 Harold "Skip" Grouser Memorial Bridge".

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 65), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 66, Quentin H. Wickline Memorial Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page one, in the fifth Whereas, by striking out “Pt.” and inserting in lieu thereof the word “Point”;

    On page two, in the sixth Whereas, by striking out “Pt.” and inserting in lieu thereof the word “Point”;

    On page two, in the Resolved clause, by striking out “Pt.” and inserting in lieu thereof the word “Point”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 66--Requesting that the Division of Highways name bridge number 27-15-6.53 (27A024), currently known as Old Town Bridge on County Route 15 (Sandhill Rd.) near Point Pleasant, Mason County, West Virginia the "Quentin H. Wickline Memorial Bridge".

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 66), as amended, the same was put and prevailed.

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

    Com. Sub. for House Concurrent Resolution No. 71, Army Private William C. Bias Memorial Bridge.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page two, in the second Further Resolved clause, by striking out the words “1880 Tuscarona Road, Niagara Fall, NY 14304” and inserting in lieu thereof the words “Niagara Falls, NY”;

    And,

    On page two, in the second Further Resolved clause, by striking out the words “701 Garvin Avenue, Apartment 305”.

    The question being on the adoption of the resolution (Com. Sub. for H. C. R. No. 71), as amended, the same was put and prevailed.

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

    House Concurrent Resolution No. 105, Urging Congress to pass the Safe Freight Act.

    On unfinished business, coming up in regular order, was reported by the Clerk.

    The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:

    On page two, in the fifth Whereas clause, by striking out the word “individual” and inserting in lieu thereof the word “individuals”;

    On page two, in the Resolved clause, after the word “have” by inserting the words “a crew of”;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub. for House Concurrent Resolution No. 105--Urging Congress to pass the Safe Freight Act as contained in H. R. 3040 providing that a freight train or light engine used in connection with the movement of freight have a crew of at least two individuals, one of whom is certified as a locomotive engineer and the other who is certified as a conductor.

    The question being on the adoption of the resolution (H. C. R. No. 105), as amended, the same was put and prevailed.

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

    The Senate proceeded to the eighth order of business.

    Eng. House Joint Resolution No. 108, Nonprofit Youth Organization Tax Exemption Support Amendment.

    On third reading, coming up in regular order, was reported by the Clerk.

    On motion of Senator Palumbo, the Senate reconsidered the vote by which on yesterday, Thursday, March 6, 2014, it adopted Senator Palumbo's amendment to the resolution (shown in the Senate Journal of that day, pages 204 and 205).

    The vote thereon having been reconsidered,

    The question again being on the adoption of Senator Palumbo's amendment to the bill.

    On motion of Senator Palumbo, the following amendment to Senator Palumbo's amendment to the resolution was reported by the Clerk and adopted:

    On page two, in the Resolved further clause, by striking out the words "leased or".

    The question being on the adoption of Senator Palumbo’s amendment to the resolution, as amended, the same was put and prevailed.

    Having been engrossed, the resolution (Eng. H. J. R. No. 108), as amended, was then read a third time and put upon its adoption.

    On the adoption of the resolution, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--32.

    The nays were: D. Hall--1.

    Absent: Green--1.

    The following amendment to the title of the resolution, from the Committee on the Judiciary, was reported by the Clerk and adopted:

    Eng. House Joint Resolution No. 108--Proposing an amendment to the Constitution of the State of West Virginia, amending article X thereof, by adding thereto a new section, designated section twelve, relating to exempting certain nonprofit youth organizations which have facilities within this state which cost in excess of $100,000,000 from ad valorem property taxation on property owned by the organization whether or not said property is leased or used to support the organization; conditioning tax exemption on enactment of legislation to which shall include protecting interests of entities in the region where the facility is located; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the resolution (Eng. H. J. R. No. 108) adopted, as follows:

    Eng. House Joint Resolution No. 108--Proposing an amendment to the Constitution of the State of West Virginia, amending article X thereof, by adding thereto a new section, designated section twelve, relating to exempting certain nonprofit youth organizations which have facilities within this state which cost in excess of $100,000,000 from ad valorem property taxation on property owned by the organization whether or not said property is leased or used to support the organization; conditioning tax exemption on enactment of legislation to which shall include protecting interests of entities in the region where the facility is located; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.

    Resolved by the Legislature of West Virginia, two thirds of the members elected to each house agreeing thereto:

    That the question of ratification or rejection of an amendment to the Constitution of the State of West Virginia be submitted to the voters of the state at the next general election to be held in the year 2014, which proposed amendment is that article X thereof be amended by adding thereto a new section, designated section twelve, to read as follows:

ARTICLE X. TAXATION AND FINANCE.

§12. Nonprofit youth organization revenue exemption.

    Notwithstanding any provision of this Constitution to the contrary, real property in this state which is owned by a non-profit organization that has as its primary purpose the development of youth through adventure, educational or recreational activities for young people and others, which property contains facilities built at a cost of not less than $100,000,000 and which property is capable of supporting additional activities within the region and the State of West Virginia is exempt from ad valorem property taxation whether or not such property is used for the nonprofit organization’s primary purpose or to generate revenue for the benefit of the non-profit organization subject to any requirements, limitations and conditions as may be prescribed by general law: Provided, That the tax exemption authorized by the provisions of this section shall not become effective until the Legislature adopts enabling legislation authorizing the exemption’s implementation and concurrently prescribing requirements, limitations and conditions for the use of the tax exempt facility that protect local and regionally located businesses from use of the tax exempt facility in a manner that causes unfair competition and unreasonable loss of revenue to those businesses.

    Resolved further, That in accordance with the provisions of article eleven, chapter three of the Code of West Virginia, 1931, as amended, such proposed amendment is hereby numbered “Amendment No. 1” and designated as the “Nonprofit Youth Organization Tax Exemption Support Amendment” and the purpose of the proposed amendment is summarized as follows: “To amend the State Constitution to exempt certain nonprofit youth organizations from ad valorem property taxation on property owned by the organization which is used to support the organization.” This tax exemption does not take effect until the Legislature enacts laws that protect local and regional businesses from unfair competition and unreasonable loss of revenue from business competition by the facility utilizing this tax exemption.

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

    Eng. Com. Sub. for House Bill No. 2803, Requiring electric utilities to implement integrated resource plans.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2803) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 3108, Relating to criminal background checks on applicants for employment by nursing homes.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3108) passed.

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

    Eng. Com. Sub. for House Bill No. 3108--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-5C-21, relating to prohibiting employment by a nursing home of a person convicted of certain crimes unless a variance has been granted by the secretary; and authorizing the Secretary of the Department of Health and Human Resources to propose legislative rules.

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

    Eng. Com. Sub. for House Bill No. 4005, Relating to criminal offenses for child neglect.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4005) passed.

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

    Eng. Com. Sub. for House Bill No. 4005--A Bill to amend and reenact §61-8D-1, §61-8D-3, §61-8D-4 and §61-8D-9 of the Code of West Virginia, 1931, as amended, relating to offenses of child abuse and neglect by a parent, guardian or custodian; defining terms and creating exceptions to terms; creating a criminal offense for child abuse by a parent, guardian or custodian which creates a substantial risk of bodily injury; establishing misdemeanor penalties for a first and second offense; providing that those convicted of a first or second offense may be required to undergo certain counseling; making a conviction of a third or subsequent offense a felony and establishing criminal penalties; stating that reasonable discipline of a child is not precluded by the child abuse crimes; making it a felony for a parent, guardian or custodian to grossly neglect a child which creates substantial risk of serious bodily injury or death; creating a criminal offense of child neglect by a parent, guardian or custodian which creates a substantial risk of bodily injury with misdemeanor penalties for first and second offenses and felony penalties for third and subsequent offenses; providing that a parent, guardian or custodian convicted of a misdemeanor is not required to register as a person convicted of child abuse or neglect or suffer other potential collateral consequences; permitting a person convicted of a misdemeanor to also be required to complete certain counseling; providing that a parent, guardian or custodian convicted of a misdemeanor is not required to register as a person convicted of child abuse or neglect and may not, solely because of the conviction, have their custody, visitation or parental rights automatically restricted; and requiring the court to declare a person an abusing parent under article six, chapter forty-nine of this code if they are convicted of a felony offense under this article.

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

    Eng. House Bill No. 4006, Relating to the possession and distribution of child pornography.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4006) passed.

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

    Eng. Com. Sub. for House Bill No. 4006--A Bill to amend and reenact §61-8C-3 of the Code of West Virginia, 1931, as amended, relating to crimes pertaining to the possession, transmission, transportation, distribution and exhibiting of material depicting minors in sexually explicit conduct; adding the accessing of such materials with intent to view as a defined offense; creating an enhanced penalties for possessing, accessing with intent to view, transporting, receiving or distributing files or materials based on the number of images in a digital, photographic or video format which depict minors engaging in sexually explicit conduct or depict acts of bestiality involving a child; and setting a number of images based on length for video film or similar media.

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

    Eng. Com. Sub. for House Bill No. 4039, Authorizing miscellaneous boards and agencies to promulgate legislative rules.

    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: Barnes, Beach, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--31.

    The nays were: Blair and M. Hall--2.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4039) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--31.

    The nays were: Blair and M. Hall--2.

    Absent: Green--1.

    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 H. B. No. 4039) takes effect from passage.

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

    Eng. House Bill No. 4135, Designating the first Thursday in May the West Virginia Day of Prayer.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4135) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4147, Relating to emergency preparedness.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4147) passed.

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

    Eng. Com. Sub. for House Bill No. 4147--A Bill to amend and reenact §15-5-1 and §15-5-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact §46A-6J-1, §46A-6J-2, §46A-6J-3 and §46A-6J-4 of said code, all relating to emergency preparedness; revising the policy statement for the Division of Homeland Security and Emergency Management; authorizing the Governor or the Legislature to declare a state of preparedness; limiting a state of preparedness to thirty days; identifying conditions that permit a declaration of a state of preparedness; adding the term “state of preparedness” to where “state of emergency” is referred throughout the code; providing that a state of preparedness has the same effect as a state of emergency for the purposes of the Emergency Management Assistance Compact and the Statewide Mutual Aid System; revising the definition of “state of emergency” in the West Virginia Consumer Protection Act; defining “state of preparedness” and “large-scale threat” in the West Virginia Consumer Protection Act; requiring the Governor to specifically list items or services subject to unfair pricing provisions in a proclamation declaring a state of preparedness; requiring notification of a state of preparedness by the Secretary of State; and making other technical and stylistic revisions.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4147) takes effect from passage.

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

    Eng. Com. Sub. for House Bill No. 4149, Allowing members of the Board of Public Works to be represented by designees and to vote by proxy.

    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, Cann, Chafin, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, Kirkendoll, Laird, McCabe, Miller, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Yost and Kessler (Mr. President)--23.

    The nays were: Barnes, Blair, Boley, Carmichael, Cole, M. Hall, Jenkins, Nohe, Sypolt and Walters--10.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4149) passed.

    At the request of Senator Snyder, as chair of the Committee on Government Organization, and by unanimous consent, the unreported Government Organization committee amendment to the title of the bill was withdrawn.

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

    Eng. Com. Sub. for House Bill No. 4156, Electronic Toll Collection Act.

    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, Cann, Carmichael, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, Kirkendoll, Laird, McCabe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Yost and Kessler (Mr. President)--22.

    The nays were: Barnes, Blair, Boley, Chafin, Cole, M. Hall, Jenkins, Miller, Nohe, Sypolt and Walters--11.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4156) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4183, Supplementing, amending, decreasing, and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4183) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4183) takes effect from passage.

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

    Eng. Com. Sub. for House Bill No. 4196, Requiring the Workforce Investment Council to provide information and guidance to local workforce investment boards that would enable them to better educate both women and men about higher paying jobs.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4196) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4208, Banning synthetic hallucinogens.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4208) passed.

    At the request of Senator Stollings, as chair of the Committee on Health and Human Resources, and by unanimous consent, the unreported Health and Human Resources committee amendment to the title of the bill was withdrawn.

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

    Eng. Com. Sub. for House Bill No. 4208--A Bill to amend and reenact §60A-1-101 of the Code of West Virginia, 1931, as amended; to amend and reenact §60A-2-204; §60A-2-206, §60A-2-208, §60A-2-210 and §60A-2-212 of said code; and to amend and reenact §60A-3-308 of said code, all relating generally to controlled substances; modifying the lists of scheduled controlled drugs; making all substances containing dihydrocodeinone schedule II controlled substances; making tramadol hydrochloride a schedule IV controlled substance; adding certain synthetic drugs to the list of scheduled controlled substances; modifying and including definitions; and modifying manner in which buprenorphine and naloxone may be prescribed.

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

    Eng. Com. Sub. for House Bill No. 4217, Relating to Medicaid reports to the Legislature.

    On third reading, coming up in regular order, was reported by the Clerk.

    On motion of Senator Stollings, the Senate reconsidered the vote by which on yesterday, Thursday, March 6, 2014, it adopted the Health and Human Resources committee amendment to the bill, as amended (shown in the Senate Journal of that day, pages 115 to 120, inclusive).

    The vote thereon having been reconsidered,

    The question again being on the adoption of the Health and Human Resources committee amendment to the bill, as amended.

    On motion of Senator Stollings, the following amendments to the Health and Human Resources committee amendment to the bill, as amended, were reported by the Clerk, considered simultaneously, and adopted:

    On page four, section twenty-three, subsection (b), by striking out the word “related” and inserting in lieu thereof the word “formal”;

    On page four, section twenty-three, subsection (b), by striking out the word “twenty-four” and inserting in lieu thereof the word “seventy-two”;

    And,

    On page four, section twenty-three, subsection (c), by striking out the word “twenty-four” and inserting in lieu thereof the word “seventy-two”.

    The question now being on the adoption of the Health and Human Resources committee amendment to the bill, as amended, the same was put and prevailed.

    Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4217), as amended, was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4217) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4242, Increasing gross weight limitations on certain roads in Brooke County.

    On third reading, coming up in regular order, was read a third time and put upon its passage.

    Pending discussion,

    The question being "Shall Engrossed Committee Substitute for House Bill No. 4242 pass?"

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4242) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4242) takes effect from passage.

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

    Eng. Com. Sub. for House Bill No. 4245, Relating to anticipated retirement dates of certain health care professionals.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4245) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4254, Providing that certain state employees may be granted a leave of absence with pay during a declared state of emergency.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4254) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4254) takes effect from passage.

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

    On motion of Senator Unger, the Senate recessed until 1:45 p.m. today.

    Upon expiration of the recess, the Senate reconvened and resumed business under the eighth order, the next bill coming up in numerical sequence being.

    Eng. House Bill No. 4256, Amending the annual salary schedule for members of the state police.

    On third reading, coming up in regular order, with the right having been granted on Wednesday, March 5, 2014, for amendments to be received on third reading, was reported by the Clerk.

    On motions of Senators Prezioso and Unger, the following amendment to the bill was reported by the Clerk and adopted:

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

ARTICLE 2. WEST VIRGINIA STATE POLICE.

§15-2-5. Career progression system; salaries; exclusion from wages and hour law, with supplemental payment; bond; leave time for members called to duty in guard or reserves.

    (a) The superintendent shall establish within the West Virginia State Police a system to provide for: The promotion of members to the supervisory ranks of sergeant, first sergeant, second lieutenant and first lieutenant; the classification of nonsupervisory members within the field operations force to the ranks of trooper, senior trooper, trooper first class or corporal; the classification of members assigned to the forensic laboratory as criminalist I-VIII; and the temporary reclassification of members assigned to administrative duties as administrative support specialist I-VIII.

    (b) The superintendent may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code for the purpose of ensuring consistency, predictability and independent review of any system developed under the provisions of this section.

    (c) The superintendent shall provide to each member a written manual governing any system established under the provisions of this section and specific procedures shall be identified for the evaluation and testing of members for promotion or reclassification and the subsequent placement of any members on a promotional eligibility or reclassification recommendation list.

    (d) Beginning on July 1, 2008, through June 30, 2011, members shall receive annual salaries as follows:

ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training. . . . . . . . . .$ 2,752.00 Mo. $ 33,024

Cadet Trooper After Training. . . . . . 3,357.33 Mo.  40,288

Trooper Second Year. . . . . . . . . . . . . . . . . . . 41,296

Trooper Third Year. . . . . . . . . . .. . . . . . . . . 41,679

Senior Trooper. . . . . . . . . . . . . . . . . . . . . . 42,078

Trooper First Class. . . . . . . . . . . . . . . . . . . 42,684

Corporal. . . . . . . . . . . . . . . .. . . . . . . . . 43,290

Sergeant. . . . . . . . . . . . . . . .. . . . . . . . . 47,591

First Sergeant. . . . . . . . . . . . . . . . . . . . . . 49,742

Second Lieutenant. . . . . . . . . . . .. . . . . . . . . 51,892

First Lieutenant. . . . . . . . . . . . . . . . . . . . . 54,043

Captain. . . . . . . . . . . . . . . . .. . . . . . . . . 56,194

Major. . . . . . . . . . . . . . . . . .. . . . . . . . . 58,344

Lieutenant Colonel. . . . . . . . . . .. . . . . . . . . 60,495

ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT SPECIALIST CLASSIFICATION

I. . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 41,679

II . . . . . . . . . . . . . . . . . . . . . . . . . . . .42,078

III. . . . . . . . . . . . . . . . . . . . . . . . . . . .42,684

IV . . . . . . . . . . . . . . . . . . . . . . . . . . . .43,290

V. . . . . . . . . . . . . . . . . . . . . . . . . . . . .47,591

VI . . . . . . . . . . . . . . . . . . . . . . . . . . . .49,742

VII. . . . . . . . . . . . . . . . . . . . . . . . . . . .51,892

VIII . . . . . . . . . . . . . . . . . . . . . . . . . . .54,043

ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I. . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 41,679

II . . . . . . . . . . . . . . . . . . . . . . . . . . . .42,078

III. . . . . . . . . . . . . . . . . . . . . . . . . . . .42,684

IV . . . . . . . . . . . . . . . . . . . . . . . . . . . .43,290

V. . . . . . . . . . . . . . . . . . . . . . . . . . . . .47,591

VI . . . . . . . . . . . . . . . . . . . . . . . . . . . .49,742

VII. . . . . . . . . . . . . . . . . . . . . . . . . . . .51,892

VIII . . . . . . . . . . . . . . . . . . . . . . . . . . .54,043

    (d) Beginning on July 1, 2011, members shall receive annual salaries as follows:

ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Cadet During Training. . . . . . . . . .$ 2,833 Mo. $ 33,994

Cadet Trooper After Training. . . . . .$ 3,438 Mo. $ 41,258

Trooper Second Year. . . . . . . . . . . . . . . . . . . .42,266

Trooper Third Year. . . . . . . . . . . . . . . . . . . . 42,649

Senior Trooper. . . . . . . . . . . . . . . . . . . . . . 43,048

Trooper First Class. . . . . . . . . . . . . . . . . . . .43,654

Corporal. . . . . . . . . . . . . . . . . . . . . . . . . 44,260

Sergeant. . . . . . . . . . . . . . . . . . . . . . . . . 48,561

First Sergeant. . . . . . . . . . . . . . . . . . . . . . 50,712

Second Lieutenant. . . . . . . . . . . . . . . . . . . . .52,862

First Lieutenant. . . . . . . . . . . . . . . . . . . . . 55,013

Captain. . . . . . . . . . . . . . . . . . . . . . . . . .57,164

Major. . . . . . . . . . . . . . . . . . . . . . . . . . .59,314

Lieutenant Colonel. . . . . . . . . . . . . . . . . . . . 61,465

ANNUAL SALARY SCHEDULE (BASE PAY)

ADMINISTRATION SUPPORT SPECIALIST CLASSIFICATION

I. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42,266

II . . . . . . . . . . . . . . . . . . . . . . . . . . . .43,048

III. . . . . . . . . . . . . . . . . . . . . . . . . . . .43,654

IV . . . . . . . . . . . . . . . . . . . . . . . . . . . .44,260

V. . . . . . . . . . . . . . . . . . . . . . . . . . . . .48,561

VI . . . . . . . . . . . . . . . . . . . . . . . . . . . .50,712

VII. . . . . . . . . . . . . . . . . . . . . . . . . . . .52,862

VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . 55,013

ANNUAL SALARY SCHEDULE (BASE PAY)

CRIMINALIST CLASSIFICATION

I. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42,266

II. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,048

III. . . . . . . . . . . . . . . . . . . . . . . . . . . .43,654

IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,260

V. . . . . . . . . . . . . . . . . . . . . . . . . . . . .48,561

VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,712

VII. . . . . . . . . . . . . . . . . . . . . . . . . . . .52,862

VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . 55,013

    Each member of the West Virginia State Police whose salary is fixed and specified in this annual salary schedule is entitled to the length of service increases set forth in subsection (e) of this section and supplemental pay as provided in subsection (g) of this section.

    (e) Each member of the West Virginia State Police whose salary is fixed and specified pursuant to this section shall receive, and is entitled to, an increase in salary over that set forth in subsection (d) of this section for grade in rank, based on length of service, including that service served before and after the effective date of this section with the West Virginia State Police as follows: Beginning on January 1, 2015 and continuing thereafter, At at the end of two years of service with the West Virginia State Police, the member shall receive a salary increase of $400 $500 to be effective during his or her next year of service and a like increase at yearly intervals thereafter, with the increases to be cumulative.

    (f) In applying the salary schedules set forth in this section where salary increases are provided for length of service, members of the West Virginia State Police in service at the time the schedules become effective shall be given credit for prior service and shall be paid the salaries the same length of service entitles them to receive under the provisions of this section.

    (g) The Legislature finds and declares that because of the unique duties of members of the West Virginia State Police, it is not appropriate to apply the provisions of state wage and hour laws to them. Accordingly, members of the West Virginia State Police are excluded from the provisions of state wage and hour law. This express exclusion shall not be construed as any indication that the members were or were not covered by the wage and hour law prior to this exclusion.

    In lieu of any overtime pay they might otherwise have received under the wage and hour law, and in addition to their salaries and increases for length of service, members who have completed basic training and who are exempt from federal Fair Labor Standards Act guidelines may receive supplemental pay as provided in this section.

    The authority of the superintendent to propose a legislative rule or amendment thereto for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the number of hours per month which constitute the standard work month for the members of the West Virginia State Police is hereby continued. The rule shall further establish, on a graduated hourly basis, the criteria for receipt of a portion or all of supplemental payment when hours are worked in excess of the standard work month. The superintendent shall certify monthly to the West Virginia State Police's payroll officer the names of those members who have worked in excess of the standard work month and the amount of their entitlement to supplemental payment. The supplemental payment may not exceed $400 monthly. The superintendent and civilian employees of the West Virginia State Police are not eligible for any supplemental payments.

    (h) Each member of the West Virginia State Police, except the superintendent and civilian employees, shall execute, before entering upon the discharge of his or her duties, a bond with security in the sum of $5,000 payable to the State of West Virginia, conditioned upon the faithful performance of his or her duties, and the bond shall be approved as to form by the Attorney General and as to sufficiency by the Governor.

     (i) In consideration for compensation paid by the West Virginia State Police to its members during those members' participation in the West Virginia State Police Cadet Training Program pursuant to section eight, article twenty-nine, chapter thirty of this code, the West Virginia State Police may require of its members by written agreement entered into with each of them in advance of such participation in the program that, if a member should voluntarily discontinue employment any time within one year immediately following completion of the training program, he or she shall be obligated to pay to the West Virginia State Police a pro rata portion of such compensation equal to that part of such year which the member has chosen not to remain in the employ of the West Virginia State Police.

    (j) Any member of the West Virginia State Police who is called to perform active duty training or inactive duty training in the National Guard or any reserve component of the Armed Forces of the United States annually shall be granted, upon request, leave time not to exceed thirty calendar days for the purpose of performing the active duty training or inactive duty training and the time granted may not be deducted from any leave accumulated as a member of the West Virginia State Police.

    Having been engrossed, the bill (Eng. H. B. No. 4256), as just amended, was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4256) passed.

    On motion of Senator Prezioso, the following amendment to the title of the bill was reported by the Clerk and adopted:

    Eng. House Bill No. 4256--A Bill to amend and reenact §15-2-5 of the Code of West Virginia, 1931, as amended, relating to increasing the longevity pay for members of the State Police.

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

    Eng. Com. Sub. for House Bill No. 4268, Relating to the administration of veterans' assistance.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4268) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. Com. Sub. for House Bill No. 4268--A Bill to repeal §9A-1-13, §9A-1-14 and §9A-1-15 of the Code of West Virginia, 1931, as amended; and to amend and reenact §9A-1-2, §9A-1-4, §9A-1-5, §9A-1-6, §9A-1-8, §9A-1-9, §9A-1-10, §9A-1-11 and §9A-1-12 of said code, all relating to the Department of Veterans’ Assistance; removing outdated language; providing additional powers to the Secretary of Department of Veteran’s Assistance; modifying the duties of the Veterans’ Council; authorizing the Secretary to award grants to provide transportation for veterans; and authorizing the Secretary of the Department of Veterans’ Assistance to enter into agreement with the Commissioner of the Department of Agriculture to transfer certain property for construction of a veterans skilled nursing facility.

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

    Eng. Com. Sub. for House Bill No. 4278, Rewriting the procedure by which corporations may obtain authorization from the West Virginia Board of Medicine to practice medicine and surgery.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4278) passed.

    At the request of Senator Snyder, as chair of the Committee on Government Organization, and by unanimous consent, the unreported Government Organization committee amendment to the title of the bill was withdrawn.

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

    Eng. Com. Sub. for House Bill No. 4278--A Bill to amend and reenact §30-3-15 of the Code of West Virginia, 1931, as amended, relating to medical and podiatry corporations; declaring certain unlawful acts; clarifying the certificate of authorization requirements for in-state and out-of-state medical and podiatry corporations; setting forth the shareholder requirements; setting notice certain requirements to the Secretary of State; clarifying renewal requirements for certificate of authorization; clarifying conditions under which the medical and podiatry corporations can practice; stating requirements for ceasing operation; ensuring the physician-patient and podiatrist-patient relationships are not changed; declaring certain evidence as admissible and prima facie evidence of the facts contained; creating a misdemeanor offense; and providing criminal penalties.

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

    Eng. Com. Sub. for House Bill No. 4283, Raising the minimum wage.

    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: Barnes, Beach, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--32.

    The nays were: Blair--1.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4283) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4298, Changing the experience requirements of the composition of the members of the West Virginia Ethics 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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4298) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. Com. Sub. for House Bill No. 4298--A Bill to amend and reenact §6B-2-1 of the Code of West Virginia, 1931, as amended, relating to the West Virginia Ethics Commission; continuing the Ethics Commission; changing the requirements of who can be a member of the Ethics Commission; reducing the number of members on the Commission to seven; and changing the composition of the membership.

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

    Eng. Com. Sub. for House Bill No. 4312, Creating a certification for emergency medical technician-industrial.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4312) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. Com. Sub. for House Bill No. 4312--A Bill to amend the Code of West Virginia, 1931, by adding thereto a new section, designated §16-4C-6c; and to amend and reenact §22A-10-1 of said code, all relating to creating a certification for emergency medical technician-industrial; establishing the certification and recertification requirements; specifying the term of the certification; restricting the practice of emergency medical technician-industrial; clarifying that emergency medical technician-industrial certification replaces emergency medical technician-miner certification; allowing the emergency medical technician-miner certification courses and examinations to be used for emergency medical technician-industrial certification; and authorizing rulemaking authority for Commissioner of Bureau for Public Health in consultation with the Board of Miner Training, Education and Certification.

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

    Eng. Com. Sub. for House Bill No. 4318, Continuing education of veterans mental health.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4318) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4318) takes effect from passage.

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

    Eng. House Bill No. 4332, Extending the time that certain nonprofit community groups are exempt from the moratorium on creating new nursing home beds.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4332) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4332) takes effect from passage.

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

    Eng. Com. Sub. for House Bill No. 4373, Relating to driver education programs.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4373) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4410, Redefining auctioneer exceptions.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4410) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. Com. Sub. for House Bill No. 4410--A Bill to amend and reenact §19-2C-1, §19-2C-3, §19-2C-5, §19-2C-5a, §19-2C-6, §19-2C-6b, §19-2C-8 and §19-2C-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §19-2C-3a, §19-2C-3b and §19-2C-9a, all relating to auctioneers and apprentice auctioneers; clarifying definitions; updating license requirements; updating duties of licensees; updating requirements for license renewals and expired licenses; authorizing rulemaking for the Commissioner of the Department of Agriculture; allowing fees to be set by legislative rule; clarifying the special fund; increasing length of record retention; clarifying examination requirements and excuses; clarifying qualifying test scores; restricting length of apprenticeship; updating duties of sponsoring auctioneer; increasing criminal penalties; requiring contracts to have certain provisions; and requiring escrow accounts.

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

    Eng. Com. Sub. for House Bill No. 4411, Allowing the disposal of drill cuttings and associated drilling waste generated from well sites in commercial solid waste facilities.

    On third reading, coming up in regular order, was read a third time and put upon its passage.

    Pending discussion,

    The question being "Shall Engrossed Committee Substitute for House Bill No. 4411 pass?"

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4411) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. Com. Sub. for House Bill No. 4411--A Bill to amend and reenact §22-15-8 and §22-15-11 of the Code of West Virginia, 1931, as amended, all relating to the disposal of drill cuttings and associated drilling waste generated from well sites at commercial solid waste facilities; allowing for the receipt of additional drilling waste at certain commercial solid waste facilities above the facility’s existing tonnage limit if certain conditions are met; recognizing the facility’s continuing obligation to receive municipal solid waste while exceeding its permitted tonnage caps; requiring radiation and leachate monitoring at all facilities receiving drill cuttings and drilling waste; establishing minimum requirements for the monitoring program; requiring the investigation and report by the department of environmental protection to the legislature on specified issues associated with the disposal of drill cuttings and drilling wastes at landfills; required scope of study; establishing deadlines, effective dates; creating a special revenue fund in the state treasury; establishing an additional solid waste fee; and requiring the promulgation of emergency and legislative rules.

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

    Eng. House Bill No. 4431, Clarifying that persons who possess firearms, hunting dogs or other indicia of hunting do not necessarily need to have a hunting license.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4431) passed with its title.

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

    Eng. House Bill No. 4454, Relating to the sale of alcoholic beverages on Sundays by private licensees.

    On third reading, coming up in regular order, with the unreported Government Organization committee amendment pending, and with the right having been granted on yesterday, Thursday, March 6, 2014, for further amendments to be received on third reading, was reported by the Clerk.

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

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

ARTICLE 7. LICENSES TO PRIVATE CLUBS.

§60-7-12. Certain acts of licensee prohibited; criminal penalties.

    (a) It is unlawful for any licensee, or agent, employee or member thereof, on such licensee's premises to:

    (1) Sell or offer for sale any alcoholic liquors other than from the original package or container;

    (2) Authorize or permit any disturbance of the peace; obscene, lewd, immoral or improper entertainment, conduct or practice, gambling or any slot machine, multiple coin console machine, multiple coin console slot machine or device in the nature of a slot machine;

    (3) Sell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors for or to, or permit the consumption of nonintoxicating beer, wine or alcoholic liquors on the licensee's premises, by any person less than twenty-one years of age;

    (4) Sell, give away or permit the sale of, gift to or the procurement of any nonintoxicating beer, wine or alcoholic liquors, for or to any person known to be deemed legally incompetent, or for or to any person who is physically incapacitated due to consumption of nonintoxicating beer, wine or alcoholic liquor or the use of drugs;

    (5) Sell, give or dispense nonintoxicating beer, wine or alcoholic liquors in or on any licensed premises or in any rooms directly connected therewith, between the hours of three o'clock a.m. and one o'clock p.m. ten thirty a.m. on any Sunday, or between the hours of three o'clock a.m. and seven o’clock a.m. on any weekday or Saturday;

    (6) Permit the consumption by, or serve to, on the licensed premises any nonintoxicating beer, wine or alcoholic liquors, covered by this article, to any person who is less than twenty-one years of age;

    (7) With the intent to defraud, alter, change or misrepresent the quality, quantity or brand name of any alcoholic liquor;

    (8) Sell or offer for sale any alcoholic liquor to any person who is not a duly elected or approved dues paying member in good standing of said private club or a guest of such member;

    (9) Sell, offer for sale, give away, facilitate the use of or allow the use of carbon dioxide, cyclopropane, ethylene, helium or nitrous oxide for purposes of human consumption except as authorized by the commissioner;

    (10) (A) Employ any person who is less than eighteen years of age in a position where the primary responsibility for such employment is to sell, furnish or give nonintoxicating beer, wine or alcoholic liquors to any person;

    (B) Employ any person who is between the ages of eighteen and twenty-one who is not directly supervised by a person aged twenty-one or over in a position where the primary responsibility for such employment is to sell, furnish or give nonintoxicating beer, wine or alcoholic liquors to any person; or

    (11) Violate any reasonable rule of the commissioner.

    (b) It is unlawful for any licensee to advertise in any news media or other means, outside of the licensee's premises, the fact that alcoholic liquors may be purchased thereat there.

    (c) Any person who violates any of the foregoing provisions is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000, or imprisoned confined in the county jail for a period not to exceed more than one year, or both fined and imprisoned confined.

ARTICLE 8. SALE OF WINES.

§60-8-34. When retail sales prohibited.

    It shall be is unlawful for a retailer, farm winery, wine specialty shop retailer, private wine bed and breakfast, private wine restaurant or private wine spa licensee, his or her servants, agents or employees to sell or deliver wine between the hours of two o'clock a.m. and one o'clock p.m. on Sundays, or between the hours of two o'clock a.m. and seven o'clock a.m. on weekdays and Saturdays: Provided, That a private wine bed and breakfast, a private wine restaurant or private wine spa licensee may sell wine for consumption on the licensee’s premises between the hours of ten thirty o’clock a.m and one o’clock p.m. on Sundays.

    There being no further amendments offered,

    Having been engrossed, the bill (Eng. H. B. No. 4454), as just amended, was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Beach, Blair, Boley, Cann, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Palumbo, Snyder, Stollings, Sypolt, Tucker, Walters, Wells, Williams, Yost and Kessler (Mr. President)--26.

    The nays were: Barnes, Carmichael, M. Hall, Nohe, Plymale, Prezioso and Unger--7.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4454) passed.

    The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

    Eng. House Bill No. 4454--A Bill to amend and reenact §60-7-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §60-8-34 of said code, all relating to the sale of alcoholic beverages by private licensees; prohibiting the sale of nonintoxicating beer, wine and alcoholic liquors by licensed private clubs between three a.m. and ten thirty a.m. on Sundays and between three a.m. and seven a.m. on any weekday or Saturday; authorizing licensed private clubs to sell nonintoxicating beer, wine and alcoholic liquors between the hours of ten thirty a.m. and one p.m. on Sundays; authorizing a licensed private bed and breakfast, private wine restaurant or private wine spa to sell wine for consumption on the licensed premises between the hours of ten thirty a.m. and one p.m. on Sundays.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Beach, Blair, Boley, Cann, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Palumbo, Snyder, Stollings, Sypolt, Tucker, Walters, Wells, Williams, Yost and Kessler (Mr. President)--26.

    The nays were: Barnes, Carmichael, M. Hall, Nohe, Plymale, Prezioso and Unger--7.

    Absent: Green--1.

    So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4454) takes effect from passage.

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

    Eng. Com. Sub. for House Bill No. 4455, Relating to the sale of wine and alcoholic liquors by licensed wineries, farm wineries, distilleries and mini-distilleries.

    On third reading, coming up in regular order, with the right having been granted on yesterday, Thursday, March 6, 2014, for further amendments to be received on third reading, was reported by the Clerk.

    There being no further amendments offered,

    Having been engrossed, the bill (Eng. H. B. No. 4455), as just amended, was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4455) passed with its title.

    Senator Unger moved that the bill take effect from passage.

    On this question, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    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 H. B. No. 4455) takes effect from passage.

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

    Eng. House Bill No. 4460, Relating to violating provisions of the civil service law for paid fire departments.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4460) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4473, Relating to establishing voting precincts and changing the composition of standard receiving boards.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4473) passed.

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

    Eng. Com. Sub. for House Bill No. 4473--A Bill to amend and reenact §3-1-5 and §3-1-29 of the Code of West Virginia, 1931, as amended, all relating to establishing voting precincts and changing the composition of standard receiving boards; authorizing the consolidation of certain precincts in certain circumstances; increasing the limit on the size of certain voting precincts to three thousand registered voters in urban areas and one thousand five hundred in rural areas; permitting precincts in urban or rural areas to have fewer than the minimum numbers of registered voters allowed; removing language requiring the West Virginia Office of Legislative Services to consult with county commissions regarding precinct modification; permitting an increase in the size of standard receiving boards; providing an option to have more poll workers and commissioners; and permitting fewer poll workers in precincts during a municipal election where there is no simultaneous state or county election.

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

    Eng. House Bill No. 4529, Relating to the sale of wine.

    On third reading, coming up in regular order, with the right having been granted on yesterday, Thursday, March 6, 2014, for amendments to be received on third reading, was reported by the Clerk.

    There being no amendments offered,

    Having been engrossed, the bill (Eng. H. B. No. 4529), as just amended, was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4529) passed with its title.

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

    Eng. Com. Sub. for House Bill No. 4538, Relating to the Board of Dentistry.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4538) passed with its title.

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

    Eng. House Bill No. 4549, Clarifying the regulation of nonintoxicating beer brewers and distributors, agreements, networks, products, brands and extensions of a line of brands.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4549) passed.

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

    Eng. House Bill No. 4549–-A Bill to amend and reenact §11-16-3 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §11-16-17a; and to amend and reenact §11-16-20 and §11-16-21 of said code, all relating to the regulation of nonintoxicating beer brewers and distributors, agreements, networks, products, brands and extensions of a line of brands; permitting the commissioner to investigate, review and approve or deny franchise agreements, labels, brands and line extensions; providing hearings; extending certain dates; establishing nonintoxicating beer, resident brewers, distributors, franchise distributor networks and line extensions standards; defining terms; providing sanctions; and authorizing rule-making.

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

    Eng. Com. Sub. for House Bill No. 4552, Relating to the court of claims.

    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: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--33.

    The nays were: None.

    Absent: Green--1.

    So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4552) passed with its title.

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

    Pending announcement of meetings of standing committees of the Senate, including a majority party caucus,

    On motion of Senator Unger, the Senate recessed until 4 p.m. today.

    Upon expiration of the recess, the Senate reconvened and proceeded to the ninth order of business.

    Eng. Com. Sub. for House Bill No. 2387, Relating to reasonable accommodations under the West Virginia Fair Housing Act for persons with disabilities who need assistive animals.

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

    At the request of Senator Unger, and by unanimous consent, the bill was advanced to third reading with the unreported Judiciary committee amendment pending and the right for further amendments to be considered on that reading.

    Eng. House Bill No. 2477, Permitting certain auxiliary lighting on motorcycles.

    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:

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

ARTICLE 15. EQUIPMENT.

§17C-15-23. Lighting equipment on motorcycles, motor-driven cycles and mopeds.

    The head lamp or head lamps upon every motorcycle, motor- driven cycle and moped may be of the single-beam or multiple-beam type but in either event shall comply with the requirements and limitations as follows:

    (1) Every said head lamp or head lamps shall be of sufficient intensity to reveal a person or a vehicle at a distance of not less than one hundred feet when the motorcycle, motor-driven cycle or moped is operated at any speed less than twenty-five miles per hour and at a distance of not less than two hundred feet when it is operated at a speed of twenty-five or more miles per hour.

    (2) In the event If the motorcycle, motor-driven cycle or moped is equipped with a multiple-beam type head lamp or head lamps the upper beam shall meet the minimum requirements set forth above and shall not exceed the limitations set forth in section twenty (a) of this article and the lowermost beam shall meet the requirements applicable to a lowermost distribution of light as set forth in section twenty (b) of this article.

    (3) In the event If the motorcycle, motor-driven cycle or moped is equipped with a single-beam lamp or lamps, said the lamp or lamps shall be so aimed that when the vehicle is loaded none of the high-intensity portion of light, at a distance of twenty-five feet ahead, shall project higher than the level of the center of the lamp from which it comes.

    (4) (A) Subject to paragraph (B) of this subdivision, a motorcycle may be equipped with, and an operator of a motorcycle may use, the following auxiliary lighting:

    (i) Amber and white illumination;

    (ii) Standard bulb running lights; or

    (iii) Light-emitting diode pods and strips.

    (B) Lighting under this subdivision shall be:

    (i) Nonblinking;

    (ii) Nonflashing;

    (iii) Nonoscillating; and

    (iv) Directed toward the engine and the drive train of the motorcycle to prevent interference with the driver’s operation of the vehicle.

    The bill (Eng. H. B. No. 2477), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 2606, Permitting the State Rail Authority to set the salary of the executive director.

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

    Eng. Com. Sub. for House Bill No. 2757, Private cause of action for the humane destruction of a dog.

    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:

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

ARTICLE 20D. PRIVATE CAUSE OF ACTION FOR THE HUMANE DESTRUCTION OF A DOG.

§19-20D-1. Purpose.

    The purpose of this article is to protect the public by providing a private cause of action seeking euthanasia of a dog in magistrate court to a person who has been attacked by a dog resulting in personal injuries requiring medical treatment which cost $2,000 or more, or who has been attacked by the dog and the dog had attacked a person causing personal injury which required medical treatment within the previous twelve months.

§19-20D-2. Procedure; petition to magistrate court; elements of action; burden of proof; attorney fees; limitation of action.

    (a) A person seeking relief under this article may apply to the magistrate court in the county where the dog owner resides, or the county where the injury occurred, by verified petition setting forth and affirming the following:

    (1) That the owner of the dog resides in the county where the petition is filed or the attack giving rise to the action occurred in the county where the petition is filed;

    (2) That the petitioner was:

    (A) Attacked by the dog and the attack resulted in personal injuries requiring medical treatment in the amount of $2,000 or more; or

    (B) Attacked by the dog and the dog had engaged in a separate attack on a person causing personal injury requiring medical treatment within the previous twelve months; and

    (3) That the petitioner did nothing to provoke the dog.

    (b) The petition and summons shall be served on the respondent in the manner set forth in Rule 4 of the West Virginia Rules of Civil Procedure.

    (c) The petitioner must prove the allegations in the petition by clear and convincing evidence.

    (d) The prevailing party is entitled to an award of reasonable attorney fees and costs.

    (e) The limitations of the cause of action in this article are as follows:

    (1) Relief, other than attorney fees and costs in subsection (d) of this section, is limited to an order directing that the owner of the dog have the dog euthanized; and

    (2) The cause of action provided by this article does not establish statutory liability nor does it supplant a common law negligence cause of action.

§19-20D-3. Order of the magistrate court.

    (a) If the trier of fact finds by clear and convincing evidence that the dog which is the subject of the action under this article has attacked the petitioner and caused personal injuries requiring medical treatment in the amount of $2,000 or more or that the dog attacked the petitioner and within the twelve month period prior to the attack had engaged in a separate attack causing personal injury requiring medical treatment, then the court shall order the owner of the dog to have the dog euthanized.

    (b) The magistrate court shall issue and file a written order that sets forth the following:

    (1) Findings of fact and conclusions of law; and

    (2) If the court orders euthanasia, a specific date upon which the owner of the dog must have the euthanasia performed and a direction that documentation be mailed to the petitioner and filed with the court by a specific date showing that the procedure was performed.

    (c) If the court does not order euthanasia, the court shall order that the petition be dismissed with prejudice.

    (d) The court may award reasonable attorney fees and costs to the prevailing party.

    The bill (Eng. Com. Sub. for H. B. No. 2757), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 2954, Requiring that members of the Mine Safety Technology Task Force are paid the same compensation as members of the Legislature.

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

    Eng. Com. Sub. for House Bill No. 3011, Removing the provision that requires an applicant to meet federal requirements concerning the production, distribution and sale of industrial hemp prior to being licensed.

    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 three, section five, after line twenty-nine, by adding a new subsection, designated subsection (e), to read as follows:

    (e) Notwithstanding any provision of this article or the provisions of chapter sixty-a of this code to the contrary, only the Department of Agriculture and state institutions of higher learning licensed and authorized by the commissioner to do so may lawfully grow or cultivate industrial hemp in this state.

    The bill (Eng. Com. Sub. for H. B. No. 3011), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4139, Restricting parental rights of child custody and visitation when the child was conceived as a result of a sexual assault or sexual abuse.

    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:

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

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §48-9-209a, to read as follows:

ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.

Part II – Parenting Plans

§48-9-209a. Child conceived as result of sexual assault or sexual abuse by a parent; rights of a biological parent convicted of sexual assault or abuse; post-conviction cohabitation; rebuttable presumption upon separation or divorce.

    (a) Except as otherwise provided in this section, if a child custodial responsibility or parenting time dispute involves a child who is conceived as a result of acts by which one of the child’s biological parents has been convicted of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code, the court shall not allocate custodial responsibility to the biological parent convicted of the sexual assault, and the convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that it is in the best interests of the child, adequately protects the child and the victim of the sexual offense and that the person or persons with custodial responsibility of the child consent thereto.

    (b) Subsection (a) does not apply if:

    (1) The biological parents are husband and wife at the time of the offense and, after the date of conviction, cohabit and establish a mutual custodial environment for the child; or

    (2) After the date of conviction, the unmarried biological parents cohabit and establish a mutual custodial environment for the child.

    (c) If persons described by subsection (b) of this section later separate or divorce, the conviction of sexual assault, pursuant to section three, four or five, article eight-b, chapter sixty-one of this code, or of sexual abuse by a parent, guardian or custodian, pursuant to section five, article eight-d, chapter sixty-one of this code creates a rebuttable presumption that exclusive or shared custodial responsibility of the child by the perpetrator of the offense is not in the best interests of the child. The convicted parent has no right to parenting time with the child unless the court finds by clear and convincing evidence set forth in written findings that, despite the rebuttable presumption required by this subsection, a custodial responsibility or parenting time arrangement with the convicted parent is in the best interests of the child, adequately protects the child and the victim of the sexual offense, and that the victim of the sexual offense consents thereto.

    (d) A denial of custodial responsibility or parenting time under this section does not by itself terminate the parental rights of the person denied custodial responsibility or parenting time, nor does it affect the obligation of the person to support the minor child.

    The bill (Eng. Com. Sub. for H. B. No. 4139), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4204, Relating to the nonrenewal or cancellation of property insurance coverage policies in force for at least four years.

    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:

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

ARTICLE 17A. PROPERTY INSURANCE DECLINATION, TERMINATION AND DISCLOSURE.

§33-17A-4. Notification and reasons for a transfer, declination or termination.

    (a) Upon declining to insure any real or personal property, subject to this article, the insurer making a declination shall provide the insurance applicant with a written explanation of the specific reason or reasons for the declination at the time of the declination. The provision of such insurance application form by an insurer shall create no right to coverage on the behalf of the insured to which the insured is not otherwise entitled.

    (b) A notice of cancellation of property insurance coverage by an insurer shall be in writing, shall be delivered to the named insured or sent by first class mail to the named insured at the last known address of the named insured, shall state the effective date of the cancellation and shall be accompanied by a written explanation of the specific reason or reasons for the cancellation.

    (c) At least thirty days before the end of a policy period, as described in subsection (c), section three of this article, an insurer shall deliver or send by first class mail to the named insured at the last known address of the named insured, notice of its intention regarding the renewal of the property insurance policy. Notice of an intention not to renew a property insurance policy shall be accompanied by an explanation of the specific reasons for the nonrenewal: Provided, That no insurer shall fail to renew an outstanding property insurance policy which has been in existence for four years or longer except for the reasons as set forth in section five of this article; or for other valid underwriting reasons which involve a substantial increase in the risk. Provided further, That notwithstanding any other provision of this article, no property insurance coverage policy in force for at least four years, may be denied renewal or canceled solely as a result of:

    (1) A single first party property damage claim within the previous thirty-six months and that arose from wind, hail, lightning, wildfire, snow or ice, unless the insurer has evidence that the insured unreasonably failed to maintain the property and that failure to maintain the property contributed to the loss, or

    (2) Two first party property damage claims within the previous twelve months, both of which arose from claims solely due to an event for which a state of emergency is declared for the county in which the insured property is located, unless the insurer has evidence that the insured unreasonably failed to maintain the property and that failure to maintain the property contributed to the loss. "State of emergency" means the situation existing after the occurrence of a disaster in which a state of emergency has been declared by the Governor or by the Legislature pursuant to the provisions of section six, article five, chapter fifteen of this code or in which a major disaster declaration or emergency declaration has been issued by the President of the United States pursuant to the provisions of 42 U. S. C. §5122.

    The bill (Eng. Com. Sub. for H. B. No. 4204), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4210, Juvenile sentencing reform.

    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:

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

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§61-11-23 Punishment for juvenile convicted as an adult; eligibility for parole; factors to be considered prior to sentencing.

    (a) Notwithstanding any other provision of law to the contrary, a sentence of life imprisonment without the possibility of parole may not be imposed on a person who:

    (1) Is convicted of an offense punishable by life imprisonment; and

    (2) Was less than eighteen years of age at the time the offense was committed.

    (b) Unless otherwise provided by this code, the provisions of article twelve, chapter sixty-two of this code shall govern the eligibility for parole of a person who is convicted of an offense and sentenced to confinement if he or she was less than eighteen years of age at the time the offense was committed, except that a person who is convicted of one or more offenses for which the sentence or any combination of sentences imposed is for a period that renders the person ineligible for parole until he or she has served more than fifteen years shall be eligible for parole after he or she has served fifteen years if the person was less than eighteen years of age at the time each offense was committed.

    (c) In addition to other factors required by law to be considered prior to the imposition of a sentence, in determining the appropriate sentence to be imposed on a person who has been transferred to the criminal jurisdiction of the court pursuant to section ten, article five, chapter forty-nine of this code and who has been subsequently tried and convicted of a felony offense as an adult, the court shall consider the following mitigating circumstances:

    (1) Age at the time of the offense;

    (2) Impetuosity;

    (3) Family and community environment;

    (4) Ability to appreciate the risks and consequences of the conduct;

    (5) Intellectual capacity;

    (6) The outcomes of a comprehensive mental health evaluation conducted by an mental health professional licensed to treat adolescents in the State of West Virginia: Provided, That no provision of this section may be construed to require that a comprehensive mental health evaluation be conducted;

    (7) Peer or familial pressure;

    (8) Level of participation in the offense;

    (9) Ability to participate meaningfully in his or her defense;

    (10) Capacity for rehabilitation;

    (11) School records and special education evaluations;

    (12) Trauma history;

    (13) Faith and community involvement;

    (14) Involvement in the child welfare system; and

    (15) Any other mitigating factor or circumstances.

    (d) (1) Prior to the imposition of a sentence on a person who has been transferred to the criminal jurisdiction of the court pursuant to section ten, article five, chapter forty-nine of this code and who has been subsequently tried and convicted of an felony offense as an adult, the court shall consider the outcomes of any comprehensive mental health evaluation conducted by an mental health professional licensed to treat adolescents in the State of West Virginia. The comprehensive mental health evaluation must include the following:

    (A) Family interviews;

    (B) Prenatal history;

    (C) Developmental history;

    (D) Medical history;

    (E) History of treatment for substance use;

    (F) Social history; and

    (G) A psychological evaluation.

    (2) The provisions of this subsection are only applicable to sentencing proceedings for convictions rendered after the effective date of this section and shall not constitute sufficient grounds for the reconsideration of sentences imposed as the result of convictions rendered after the effective date of this section.

CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 12. PROBATION AND PAROLE.

§62-12-13b. Special parole considerations for persons convicted as juveniles.

    (a) When a person who is serving a sentence imposed as the result of an offense or offenses committed when he or she was less than eighteen years of age becomes eligible for parole pursuant to applicable provisions of this code, including, but not limited to, section twenty-three, article eleven, chapter sixty-one thereof, the parole board shall ensure that the procedures governing its consideration of the person’s application for parole ensure that he or she is provided a meaningful opportunity to obtain release and shall adopt rules and guidelines to do so that are consistent with existing case law.

    (b) During a parole hearing involving a person described in subsection (a) of this section, in addition to other factors required by law to be considered by the parole board, the parole board shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner during incarceration. The board shall also consider the following:

    (1) A review of educational and court documents;

    (2) Participation in available rehabilitative and educational programs while in prison;

    (3) Age at the time of the offense;

    (4) Immaturity at the time of the offense;

    (5) Home and community environment at the time of the offense;

    (6) Efforts made toward rehabilitation;

    (7) Evidence of remorse; and

    (8) Any other factors or circumstances the board considers relevant.

    The bill (Eng. Com. Sub. for H. B. No. 4210), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4220, Relating to waiver of jury trial in claims arising from consumer transactions.

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

    At the request of Senator Palumbo, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the bill was withdrawn.

    On motion of Senator Palumbo, the following amendment to the bill was reported by the Clerk and adopted:

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

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §16-5C-21, to read as follows:

ARTICLE 5C. NURSING HOMES.

§16-5C-21. Jury trial waiver to be a separate document.

    (a) Every written agreement containing a waiver of a right to a trial by jury that is entered into between a nursing home and a person for the nursing care of a resident, must have as a separate and stand alone document any waiver of a right to a trial by jury.

    (b) Nothing in this section may be construed to require a court of competent jurisdiction to determine that the entire agreement or any portion thereof is enforceable, unenforceable, conscionable or unconscionable.

    (c) This section applies to all agreements entered into on or after January 1, 2015.

    The bill (Eng. Com. Sub. for H. B. No. 4220), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4228, Repealing or removing certain portions of education-related statutes that have expired.

    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:

    On page ten, section seven, line forty-two, after the word “by” by inserting the word “a”.

    The bill (Eng. Com. Sub. for H. B. No. 4228), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4237, Prohibiting the sale, distribution and use of electronic cigarettes, vapor products and other alternative nicotine products to persons under the age of eighteen.

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

    At the request of Senator Stollings, as chair of the Committee on Health and Human Resources, and by unanimous consent, the unreported Health and Human Resources committee amendment to the bill was withdrawn.

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

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

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.

§16-9A-2. Definitions; sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing tobacco, pipe tobacco, roll-your-own tobacco, tobacco products, tobacco-derived and alternative nicotine product or vapor products to persons under eighteen; penalties for first and subsequent offense; consideration of prohibited act as grounds for dismissal; impact on eligibility for unemployment benefits.

    (a) For purposes of this article, the term:

    (1) “Tobacco product” and “tobacco-derived product” means any product, containing, made or derived from tobacco, or containing nicotine derived from tobacco, that is intended for human consumption, whether smoked, breathed, chewed, absorbed, dissolved, inhaled, vaporized, snorted, sniffed or ingested by any other means, including but not limited to cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff, snus, chewing tobacco or other common tobacco-containing products. A “tobacco-derived product” includes electronic cigarettes or similar devices, alternative nicotine products and vapor products. “Tobacco product” or “tobacco-derived product” does not include any product that is regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

    (2) “Alternative nicotine product” means any non-combustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved or ingested by any other means. “Alternative nicotine product” does not include any tobacco product, vapor product or product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

    (3) “Vapor product” means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit or other electronic, chemical or mechanical means, regardless of shape and size, that can be used to produce vapor from nicotine in a solution or other form. “Vapor product” includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device, and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device. “Vapor product” does not include any product that is regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

    (a) (b) No person, firm, corporation or business entity may sell, give or furnish, or cause to be sold, given or furnished, to any person under the age of eighteen years:

    (1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product; or

    (2) Any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form; or

    (3) Any tobacco-derived product, alternative nicotine product or vapor product.

    (b) (c) Any firm or corporation that violates any of the provisions of subdivision (1), or (2) subsection (a) (b) of this section and any individual who violates any of the provisions of subdivision (1) subsection (a) (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $50 for the first offense. Upon any subsequent violation at the same location or operating unit, the firm, corporation or individual shall be fined as follows: At least $250 but not more than $500 for the second offense, if it occurs within two years of the first conviction; at least $500 but not more than $750 for the third offense, if it occurs within two years of the first conviction; and at least $1,000 but not more than $5,000 for any subsequent offenses, if the subsequent offense occurs within five years of the first conviction.

    (c) (d) Any individual who knowingly and intentionally sells, gives or furnishes or causes to be sold, given or furnished to any person under the age of eighteen years any cigar, cigarette, snuff, chewing tobacco, or tobacco product or tobacco-derived product, in any form, is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than $100; upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall be fined not less than $100 nor more than $500.

    (d) (e) Any employer who discovers that his or her employee has sold or furnished tobacco products or tobacco-derived products to minors may dismiss such employee for cause. Any such discharge shall be considered as “gross misconduct” for the purposes of determining the discharged employee’s eligibility for unemployment benefits in accordance with the provisions of section three, article six, chapter twenty-one-a of this code, if the employer has provided the employee with prior written notice in the workplace that such act or acts may result in their termination from employment.

§16-9A-3. Use or possession of tobacco or tobacco products, alternative nicotine products or vapor products by persons under the age of eighteen years; penalties.

    No person under the age of eighteen years shall have on or about his or her person or premises or use any cigarette, or cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco products, in any form; or, any pipe, snuff, chewing tobacco, or tobacco product or tobacco-derived product: Provided, That minors participating in the inspection of locations where tobacco products or tobacco-derived products, are sold or distributed pursuant to section seven of this article is not considered to violate the provisions of this section. Any person violating the provisions of this section shall for the first violation be fined $50 and be required to serve eight hours of community service; for a second violation, the person shall be fined $100 and be required to serve sixteen hours of community service; and for a third and each subsequent violation, the person shall be fined $200 and be required to serve twenty-four hours of community service. Notwithstanding the provisions of section two, article five, chapter forty-nine, the magistrate court has concurrent jurisdiction.

§16-9A-4. Use of tobacco, tobacco products, alternative nicotine products or vapor products in certain areas of certain public schools prohibited; penalty.

    Every person who shall smoke a cigarette or cigarettes, pipe, cigar or other implement, of any type or nature, designed, used or employed for smoking any tobacco or tobacco product; or who shall use any tobacco product or tobacco-derived product whether chewing tobacco, snuff or otherwise in any building or part thereof used for instructional purposes, in any school of this state, as defined in section one, article one, chapter eighteen of this code, or on any lot or grounds actually used for instructional purposes of any such school of this state while such school is used or occupied for school purposes, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished for each offense by a fine of not less than one nor more than five dollars: Provided, That this prohibition shall not be construed to prevent the use of any tobacco or tobacco product or tobacco-derived product, in any faculty lounge or staff lounge or faculty office or other area of said public school not used for instructional porposes: Provided, however, That students do not have access thereto: Provided further, That nothing herein contained shall be construed to prevent any county board of education from promulgating rules and regulations that further restrict the use of tobacco, or tobacco products or tobacco-derived products, in any form, from any other part or section of any public school building under its jurisdiction.

§16-9A-7. Enforcement of youth smoking laws and youth nicotine restrictions; inspection of retail outlets where tobacco, tobacco products, vapor products or alternative nicotine products are sold; use of minors in inspections; annual reports; penalties; defenses.

    (a) The commissioner of the West Virginia alcohol beverage control administration, the Superintendent of the West Virginia State Police, the sheriffs of the counties of this state and the chiefs of police of municipalities of this state, may periodically conduct unannounced inspections at locations where tobacco products or tobacco-derived products, are sold or distributed to ensure compliance with the provisions of sections two and three of this article and in such manner as to conform with applicable federal and state laws, rules and regulations. Persons under the age of eighteen years may be enlisted by such commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof to test compliance with these sections: Provided, That the minors may be used to test compliance only if the testing is conducted under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and written consent of the parent or guardian of such person is first obtained and such minors shall not be in violation of section three of this article and chapter when acting under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and with the written consent of the parent or guardian. It is unlawful for any person to use persons under the age of eighteen years to test compliance in any manner not set forth herein and the person so using a minor is guilty of a misdemeanor and, upon conviction thereof, shall be fined the same amounts as set forth in section two of this article.

    (b) A person charged with a violation of section two or three of this article as the result of an inspection under subsection (a) of this section has a complete defense if, at the time the cigarette, or other tobacco product or tobacco-derived product, or cigarette wrapper, was sold, delivered, bartered, furnished or given:

    (1) The buyer or recipient falsely evidenced that he or she was eighteen years of age or older;

    (2) The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be eighteen years of age or older; and

    (3) Such person carefully checked a driver’s license or an identification card issued by this state or another state of the United States, a passport or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was eighteen years of age or older.

    (c) Any fine collected after a conviction of violating section two of this article shall be paid to the clerk of the court in which the conviction was obtained: Provided, That the clerk of the court upon receiving the fine shall promptly notify the Commissioner of the West Virginia Alcohol Beverage Control Administration of the conviction and the collection of the fine: Provided, however, That any community service penalty imposed after a conviction of violating section three of this article shall be recorded by the clerk of the court in which the conviction was obtained: Provided further, That the clerk of the court upon being advised that community service obligations have been fulfilled shall promptly notify the Commissioner of the West Virginia Alcohol Beverage Control Administration of the conviction and the satisfaction of imposed community service penalty.

    (d) The Commissioner of the West Virginia Alcohol Beverage Control Administration or his or her designee shall prepare and submit to the Governor on the last day of September of each year a report of the enforcement and compliance activities undertaken pursuant to this section and the results of the same, with a copy to the Secretary of the West Virginia Department of Health and Human Resources. The report shall be in the form and substance that the Governor shall submit to the applicable state and federal programs.

§16-9A-8. Selling of tobacco products, tobacco-derived products, alternative nicotine products or vapor products in vending machines prohibited except in certain places.

    No person or business entity may offer for sale any cigarette, or other tobacco product or tobacco-derived product, in a vending machine. Any person or business entity which violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $250: Provided, That an establishment is exempt from this prohibition if individuals under the age of eighteen years are not permitted to be in the establishment or if the establishment is licensed by the alcohol beverage control commissioner as a Class A licensee. The alcohol beverage control commissioner shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code prior to the July 1, 2000, which rules shall to establish standards for the location and control of the vending machines in Class A licensed establishments for the purpose of restricting access by minors.

    The bill (Eng. Com. Sub. for H. B. No. 4237), as amended, was then ordered to third reading.

    Eng. House Bill No. 4286, Captive Cervid Farming Act.

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

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

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

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-2H-1, §19-2H-2, §19-2H-3, §19-2H-4, §19-2H-5, §19-2H-6, §19-2H-7, §19-2H-8, §19-2H-9, §19-2H-10, §19-2H-11, §19-2H-12, §19-2H-13, §19-2H-14 and §19-2H-15; and that §20-1-2 of said code be amended and reenacted, all to read as follows:

CHAPTER 19. AGRICULTURE.

ARTICLE 2H. CAPTIVE CERVID FARMING ACT.

§19-2H-1. Short title; joint regulation.

    (a) This article shall be known and may be cited as the Captive Cervid Farming Act.

    (b) Captive cervid farming shall be jointly regulated by the Department of Agriculture and the Division of Natural Resources.

    (c) The department and division shall cooperate to implement the provisions of this article, promulgate rules, draft any Memorandums of Understanding or take other action as may be necessary for the proper and effective enforcement of these provisions.

§19-2H-2. Purpose and legislative findings.

    (a) The purpose of this article is to promote this state’s agricultural economy, to preserve family farming opportunities, to encourage agricultural uses of the natural topography of the state’s rural lands and to foster job retention and job creation in the state’s rural areas by providing for comprehensive regulation of captive cervid farming as a viable agricultural business, while also preserving the importance of wildlife management and deer hunting in this state.

    (b) The Legislature finds and declares that captive cervid farming is primarily an agricultural pursuit, and that captive cervids may be raised in a manner similar to other livestock. The Commissioner of Agriculture possesses the knowledge, training and experience required to properly regulate captive cervid farms and to adequately protect the health and safety of animals and the general public. The Legislature also finds and declares that matters related to promoting the cervid farming industry, the sale and regulation of cervid meat excluding white-tailed deer and elk meat, animal health, animal identification, record keeping and animal husbandry methods and equipment are best managed and regulated by the department.

    (c) The Legislature further finds that the Division of Natural Resources is empowered to regulate and protect the native wildlife of this state, currently issues licenses for captive cervid facilities, and has natural resources police officers to enforce its regulations and permitting requirements. The division has a vested interest in maintaining the health and safety of wildlife as part of its wildlife management objectives, as well as encouraging the long tradition of deer hunting in this state. Fencing, pen size, entrapment of wildlife, interstate movement of captive cervids, escaping captive cervids, and chronic wasting disease management are best managed and regulated by the division.

§19-2H-3. Definitions.

    As used in this article:

    (1) “Bio-security” means measures, actions or precautions taken to prevent the transmission of disease in, among or between wild and captive cervids.

    (2) “Captive cervid” or “captive cervids” means members of the Cervidae family of animals including, but not limited to, fallow deer, red deer, white-tailed deer, axis deer, elk, moose, reindeer and caribou that are raised in captivity and under the control of the owner of the animal.

    (3) “Captive cervid farm” means the captive cervids, the fenced area and all equipment and components regulated by the department and the division for use as a captive cervid farming operation as provided for in this article.

    (4) “Commissioner” means the Commissioner of the West Virginia Department of Agriculture.

    (5) “Department” means the West Virginia Department of Agriculture.

    (6) “Division” means the Division of Natural Resources.

    (7) “Identification system” means a process or procedure that allows an individual cervid to be continuously recognized and monitored as a unique animal throughout its lifetime.

    (8) “License” means a Class One or Class Two Captive Cervid Farm License issued by the department for the operation of a captive cervid farm.

    (9) “Owner” means the person who owns or operates a licensed captive cervid farm, or his or her agent or operator.

    (10) “Permit” means a Captive Cervid Fencing Permit issued by the division for the operation of a captive cervid farm.

    (11) “Person” means an individual, corporation, limited liability company, partnership, association, joint venture or other legal entity.

    (11) “Release” means to allow a cervid from a licensed captive cervid farm to be outside the perimeter fence of the farm without being under the direct control of the owner.

§19-2H-4. Authority of the Department of Agriculture; rules.

    (a) The department is granted the authority to regulate and control captive cervid farm licenses, applications, requirements, record keeping, animal husbandry, identification and tagging, disease prevention, inoculation and testing, fee schedule for services, species commingling, intrastate movement of captive cervids, captive cervid meat inspection and sales excluding white-tailed deer and elk, and inspections of captive cervid farms in this state in accordance with this article. Subject to the transition provisions contained in section twelve of this article, no person may operate a captive cervid farm in this state unless that person holds a license issued by the commissioner pursuant to this article.

    (b) The commissioner shall promulgate emergency or legislative rules in accordance with article three, chapter twenty-nine-a of this code to provide for implementation and enforcement of this article.

    (c) The rules, insofar as practicable, shall provide for the protection of animal and human health and promotion of bio-security that are consistent with the rules promulgated by the United States Department of Agriculture, Division of Animal and Plant Health Inspection Service.

    (d) The rules shall include, but not be limited to, requirements that:

    (1) Implement an identification system that allows individual captive cervid to be recognized, tracked and identified throughout the animal’s life;

    (2) Specify the record-keeping standards required of licensees, including standards for documentation of purchases, propagation, sales, slaughtering and any other documentation required to maintain accurate and complete records of captive cervid farming operations;

    (3) Establish animal health testing criteria to discover and prevent the spread of disease in captive cervids, to conduct testing and inoculations, and to impose quarantines; and

    (4) Establish a schedule of fees and charges for services provided by the department to licensed captive cervid farms.

§19-2H-5. Authority of the Division of Natural Resources; rules.

     (a) The division is granted the authority to regulate, control and inspect the fencing, pen size, entrapment of wildlife, escape of captive cervids, interstate movement of captive cervids, and management of chronic wasting disease and other diseases affecting cervids in this state in accordance with this article and chapter twenty of this code. Subject to the transition provisions contained in section twelve of this article, no person may operate a captive cervid farm in this state unless that person holds a permit issued by the director pursuant to this article.

    (b) The director shall promulgate emergency or legislative rules in accordance with article three, chapter twenty-nine-a of this code as are necessary to provide for implementation and enforcement of this article.

    (c) The rules promulgated under this section shall include, but not be limited to, requirements that:

    (1) Establish the specifications for fencing necessary to prevent the escape of captive cervids and the infiltration of wildlife into a licensed captive cervid farm. The fencing regulations shall be reasonable and comport with accepted industry and regulatory standards for captive cervids;

    (2) Regulate the interstate movement of captive cervids and provide for maintenance of documentation of the origin and destination of all shipments and any other requisite documentation; and

    (3) Maintain chronic wasting disease and other disease statistics, and develop any requisite management criteria for chronic wasting disease and other disease containment zones and intrastate movement of cervids therein to prevent the spread of the disease.

§19-2H-6. Duties of the commissioner and director.

    Pursuant to the scope of his or her authority under this article, the commissioner or the director may:

    (1) Establish a section and designate staff to implement this article;

    (2) Contract with veterinarians, biologists or other animal health professionals to provide scientific expertise, services and testing to implement the provisions of this article;

    (3) Enter into interstate contracts with other states to enhance the bio-security of captive cervid farms in this and other states;

    (4) Lease, rent, acquire, purchase, own, hold, construct, equip, maintain, operate, sell, encumber and assign rights of any property, real or personal, consistent with the objectives set forth in this article;

    (5) Hold hearings, subpoena witnesses, administer oaths, take testimony, require the production of evidence and documentary evidence and designate hearing examiners; and

    (6) Take any other action necessary or incidental to the performance of their respective duties and powers under this article.

§19-2H-7. Application for license or permit.

    (a) A person applying to operate a captive cervid farm in this state is required to have: 1) A Class One or Class Two Captive Cervid Farm License from the department; and 2) a Captive Cervid Fencing Permit from the division. The department and the division shall provide the forms and instructions for the license and permit applications.

    (b) The following information shall be submitted by the person to the department for a license, and the division for a permit:

    (1) The mailing address of the proposed captive cervid farm and the size, location and an adequate legal description of the farm;

    (2) The number of each species of cervid proposed to be included in the proposed farm;

    (3) The bio-security measures to be utilized, including, but not limited to, a description of the fencing and the animal identification system to be used;

    (4) The proposed method of flushing wild white-tailed deer from the enclosure, if applicable;

    (5) The record-keeping system;

    (6) The method of verification that all wild white-tailed deer have been removed;

    (7) The current zoning, if any, of the property proposed for the farm;

    (8) Any other information considered necessary by the department or division; and

    (9) A closure plan for the safe disposition of captive cervids.

    (c) The application shall be accompanied by the biennial license and permit fees set forth below. The license and permit fees and classes may be amended by rule, and are as follows:

    (1) Class One Captive Cervid Farm License. –- Issued by the department for a farm to be used only to breed and propagate cervids and create byproducts for sale: $500;

    (2) Class Two Captive Cervid Farm License. -- Issued by the department for a farm to breed and propagate cervids and create byproducts for sale, and to slaughter and sell captive cervid meat, excluding the sale of white-tailed deer and elk meat: $1,250; and

    (3) Captive Cervid Fencing Permit. -- Issued by the division for all captive cervid farms: $500.

§19-2H-8. Department and Division action on applications.

    (a) The department shall act on an application for a license, and the division shall act on an application for a permit, within sixty days of receipt. The department may issue a provisional license, and the division a provisional permit, for a proposed farm that has not yet been constructed, but operations shall not begin until the completed farm has been inspected by the department and division, and each has issued a license or permit, respectively.

    (b) The department and division may not issue a license or permit until it is determined that the captive cervid farm meets all of the following criteria:

    (1) The captive cervid farm has been inspected by the department and division and meets the standards and requirements of this article and the rules promulgated thereunder;

    (2) The applicant has all requisite federal, state and local governmental permits; and

    (3) The owner has paid all applicable license and permit fees and all charges for services provided to the captive cervid farm.

    (c) If the department or division finds a deficiency in the license or permit applications, the owner shall be given at least thirty days to remedy the deficiency before the license or permit application is denied.

    (d) If the commissioner determines that the proposed captive cervid farm does not comply with the requirements of this article after the opportunity to remedy deficiencies, the commissioner shall deny the license application and notify the applicant in writing of the reasons for the denial.

    (e) If the director determines that the proposed captive cervid farm does not comply with the permit requirements of this article after the opportunity to remedy deficiencies, the director shall deny the permit application and notify the applicant in writing of the reasons for the denial.

    (f) The applicant may request a hearing from the commissioner for a license denial, or the director for a permit denial, pursuant to article five, chapter twenty-nine-a of this code to contest the denial of a license or permit, or any limitations placed upon the issuance of a license or permit.

    (g) The department and division shall retain the license and permit fees regardless of approval.

§19-2H-9. License and permit certificates; renewal; nontransferable.

    (a) Once approved, the department shall issue a license certificate, and the division shall issue a permit certificate, to the owner of the captive cervid farm containing information such as:

    (1) The class of license, the license number, the permit number, and expiration dates;

    (2) The cervid herd size and species approved for the farm;

    (3) The name, business address, physical address and directions, and telephone number of the owner of the farm; and

    (4) Emergency response and contact information for the captive cervid farm.

    (b) An application for renewal of a license or permit shall be submitted on forms provided by the department or division not later than sixty days before expiration of the current license or permit. Each license or permit issued shall be for a period of two years from the date of issuance.

    (c) The sale or transfer of ownership of a captive cervid farm will not operate to transfer the license or permit. The department or division may issue a new license or permit to the transferee if all requirements and fees are satisfied.

§19-2H-10. License and permit modification.

    (a) An owner must apply to the department for a license modification if there is any proposed change in the class of license or the species approved for the captive cervid farm.

    (b) An owner must apply to the division for a permit modification if there is any proposed change to the captive cervid farm permit.

§19-2H-11. Inspection of farm by the department and division.

    The department and division shall have access at all reasonable hours to any licensed or provisional captive cervid farm for the purpose of conducting inspections, securing samples or specimens of any cervid species and determining whether the owner is in compliance with the requirements of this article. Any inspection and sampling shall be conducted in a manner that will foster the bio-security of captive cervid farms, and will not unnecessarily jeopardize the health of the captive cervids.

§19-2H-12. Transition to captive cervid farm license and permit process.

    A captive cervid farm in existence on the effective date of this article may continue operation under its existing authorization until the department and division act on its application for a license and permit under this article if the owner of that farm applies for a license and permit within sixty days after application forms are made available to current licensees.

§19-2H-13. Noncompliance with article, standards, orders or rules; suspension, revocation or limitation of license or permit.

    (a) The department may suspend, revoke or limit a license if the licensee fails to comply with this article, standards adopted under this article, orders issued by the commissioner as a result of an administrative action or departmental review conducted under this article or rules promulgated under this article.

    (b) The division may suspend, revoke or limit a permit if the permittee fails to comply with this article, standards adopted under this article, orders issued by the director as a result of an administrative action or review conducted under this article or rules promulgated pursuant to this article.

§19-2H-14. Prohibited conduct; violation; penalty.

    (a) A person may not recklessly release or permit the release of a captive cervid from a captive cervid farm. A person may not intentionally or recklessly allow the entry or introduction of wild white-tailed deer into a captive cervid farm. Any person who violates this subsection is guilty of a misdemeanor and, upon conviction thereof, shall, for a first offense, be confined in jail for not more than ninety days, or fined not less than $50 nor more than $300 or both fined and confined. Any person who violates this subsection for a second or subsequent offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year, or fined not less than $500 nor more than $1,000, or both fined and confined.

    (b) Any person who intentionally releases captive cervids into the wild, or releases or abandons captive cervids by failing to properly close or wind down a captive cervid farm, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than three years, or fined not less than $2,000 nor more than $5,000, or both fined and imprisoned.

§19-2H-15. Findings of violations; remedies.

    (a) The commissioner or director, upon finding that a person has violated a provision this article or the rules promulgated thereunder, may:

    (1) Issue a warning; or

    (2) Impose a civil penalty of not more than $1,000 per violation, plus the costs of investigation, for each violation, after notice and an opportunity for a hearing. A person aggrieved by an administrative action under this section may request a hearing pursuant to article five, chapter twenty-nine-a of this code.

    (b) Notwithstanding any other provisions of this article, the commissioner or director may bring an action to:

    (1) Obtain a declaratory judgment that a particular method, activity or practice is a violation of this article; or

    (2) Obtain an injunction against a person who is engaging in a method, activity or practice that violates this article.

    (c) The remedies under this article are cumulative and use of one remedy does not bar the use of any other remedy.

CHAPTER 20. NATURAL RESOURCES.

ARTICLE 1. ORGANIZATION AND ADMINISTRATION.

§20-1-2. Definitions.

    As used in this chapter, unless the context clearly requires a different meaning:

    (1) "Agency" means any branch, department or unit of the state government, however designated or constituted.

    (2) "Alien" means any person not a citizen of the United States.

    (3) "Bag limit" or "creel limit" means the maximum number of wildlife which may be taken, caught, killed or possessed by any person.

    (4) “Big game” means elk, white-tailed deer, black bears, wild boars and wild turkeys.

    (5) "Bona fide resident, tenant or lessee" means a person who permanently resides on the land.

    (6) "Citizen" means any native-born citizen of the United States and foreign-born persons who have procured their final naturalization papers.

    (7) "Closed season" means the time or period during which it shall be unlawful to take any wildlife as specified and limited by the provisions of this chapter regulation.

    (8) "Commission" means the Natural Resources Commission.

    (9) "Commissioner" means a member of the advisory commission of the Natural Resources Commission.

    (10) "Director" means the Director of the Division of Natural Resources.

    (11) "Fishing" or "to fish" means the taking, by any means, of fish, minnows, frogs or other amphibians, aquatic turtles and other forms of aquatic life used as fish bait, whether dead or alive.

    (12) "Fur-bearing animals" include:(a) The mink; (b) the weasel; (c) the muskrat; (d) the beaver; (e) the opossum; (f) the skunk and civet cat, commonly called polecat; (g) the otter; (h) the red fox; (i) the gray fox; (j) the wildcat, bobcat or bay lynx; (k) the raccoon; and (l) the fisher.

    (13) "Game" means big game, game animals, game birds, and game fish and small game as herein defined.

    (14) "Game animals" include:(a) The elk; (b) the white-tailed deer; (c) the cottontail rabbits and hares; (d) the fox squirrels, commonly called red squirrels, and gray squirrels and all their color phases - red, gray, black or albino; (e) the raccoon; (f) the black bear; and (g) the wild boar.

    (15) "Game birds" include:(a) The anatidae, commonly known as swan, geese, brants and river and sea ducks; (b) the rallidae, commonly known as rails, sora, coots, mudhens and gallinule; (c) the limicolae, commonly known as shorebirds, plover, snipe, woodcock, sandpipers, yellow legs and curlews; (d) the galliformes, commonly known as wild turkey, grouse, pheasants, quails and partridges (both native and foreign species); (e) the columbidae, commonly known as doves; (f) the icteridae, commonly known as blackbirds, redwings and grackle; and (g) the corvidae, commonly known as crows.

    (16) "Game fish" include:(a) Brook trout; (b) brown trout; (c) rainbow trout; (d) golden rainbow trout; (e) largemouth bass; (f) smallmouth bass; (g) spotted bass; (h) striped bass; (i) chain pickerel; (j) muskellunge; (k) walleye; (l) northern pike; (m) rock bass; (n) white bass; (o) white crappie; (p) black crappie; (q) all sunfish species; (r) channel catfish; (s) flathead catfish; (t) blue catfish, (u) sauger; and (v) all game fish hybrids.

    (17) "Hunt" means to pursue, chase, catch or take any wild birds or wild animals. Provided, That wildlife. However, the definition of “hunt” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.

    (18) "Lands" means land, waters and all other appurtenances connected therewith.

    (19) "Migratory birds" means any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States, known as the Migratory Bird Treaty Act, for the protection of migratory birds and game mammals concluded, respectively, August 16, 1916, and February 7, 1936.

    (20) "Nonresident" means any person who is a citizen of the United States and who has not been a domiciled resident of the State of West Virginia for a period of thirty consecutive days immediately prior to the date of his or her application for a license or permit except any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition.

    (21) "Open season" means the time during which the various species of wildlife may be legally caught, taken, killed or chased in a specified manner and shall include both the first and the last day of the season or period designated by the director.

    (22) "Person", except as otherwise defined elsewhere in this chapter, means the plural "persons" and shall include or “persons” mean individuals, partnerships, corporations or other legal entities.

    (23) "Preserve" means all duly licensed private game farmlands farms, or private plants, ponds or areas, where hunting or fishing is permitted under special licenses or seasons other than the regular public hunting or fishing seasons. The term “preserve” does not mean a captive cervid farm pursuant to article two-h, chapter nineteen of this code, though a captive cervid farm may also be licensed as a preserve.

    (24) "Protected birds" means all wild birds not included within the definition of "game birds" and "unprotected birds".

    (25) "Resident" means any person who is a citizen of the United States and who has been a domiciled resident of the State of West Virginia for a period of thirty consecutive days or more immediately prior to the date of his or her application for a license or permit. Provided, That However, a member of the armed forces of the United States who is stationed beyond the territorial limits of this state, but and who was a resident of this state at the time of his or her entry into such the service, and any full-time student of any college or university of this state even though he or she is paying a nonresident tuition, shall be considered a resident under the provisions of this chapter.

    (26) "Roadside menagerie" means any place of business, other than a commercial game farm, commercial fish preserve, place or pond, where any wild bird, game bird, unprotected bird, game animal or fur-bearing animal is kept in confinement for the attraction and amusement of the people for commercial purposes.

    (27) “Small game” includes all game animals, furbearing animals and game birds except elk, white-tailed deer, black bears, wild boars and wild turkeys.

    (28) "Take" means to hunt, shoot, pursue, lure, kill, destroy, catch, capture, keep in captivity, gig, spear, trap, ensnare, wound or injure any wildlife, or attempt to do so. Provided, That However, the definition of “take” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.

    (29) "Unprotected birds" shall include:(a) The English sparrow; (b) the European starling; and (c) the cowbird.

    (30) "Wild animals" means all mammals native to the State of West Virginia occurring either in a natural state or in captivity, except house mice or rats.

    (31) "Wild birds" shall include all birds other than:(a) Domestic poultry - chickens, ducks, geese, guinea fowl, peafowls and turkeys; (b) psittacidae, commonly called parrots and parakeets; and (c) other foreign cage birds such as the common canary, exotic finches and ring dove. All wild birds, either:(i) Those occurring in a natural state in West Virginia; or (ii) those imported foreign game birds, such as waterfowl, pheasants, partridges, quail and grouse, regardless of how long raised or held in captivity, shall remain wild birds under the meaning of this chapter.

    (32) "Wildlife" means wild birds, wild animals, game, and fur-bearing animals, fish (including minnows), reptiles, amphibians, mollusks, crustaceans and all forms of aquatic life used as fish bait, whether dead or alive. native to the state of West Virginia unless the context indicates otherwise.

    (33) "Wildlife refuge" means any land set aside by action of the director as an inviolate refuge or sanctuary for the protection of designated forms of wildlife.

    The bill (Eng. H. B. No. 4286), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4294, Establishing standards for court reporters and entities that provide court reporting services.

    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:

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

ARTICLE 27. COURT REPORTER SERVICES.

§47-27-1. Fair trade standards for use of court reporter services.

    (a) The purpose of this article is to ensure the integrity of the use of court reporter services by establishing standards for private court reporters and entities providing or arranging for court reporting services. It is declared the policy of the State of West Virginia that fair, ethical and impartial selection and use of court reporting services are integral to the equitable administration of justice.

    (b) For purposes of this article, “court reporter” means private court reporters providing court reporting services, as well as businesses, entities or firms that provide or arrange for court reporting services, and “original transcript” means the original transcription requested by a party along with a certified copy of same for purposes of filing with a court.

    (c) The provisions described in this article apply to court reporting services performed in this state that are:

    (1) Provided by a court reporter, wherever based, in connection with a legal proceeding commenced or maintained in this state; and

    (2) Provided by a court reporter based in this state, whether the parties appear in person or by remote means.

    (d) The provisions of this article do not apply to the conduct of official court reporters or their substitutes, appointed by judges pursuant to section one, article seven, chapter fifty-one of this code, when acting in their official capacities, reporters of government proceedings not relating to a legal proceeding, local or federal courts, providing real-time services for hard-of-hearing litigants, the provision of pro bono services to litigants who would qualify for the same through West Virginia Legal Aid or other similar organizations, workers’ compensation proceedings or legal proceedings recorded with sound-and-visual devices. A legal proceeding includes, but is not limited to, the following:

    (1) A court proceeding;

    (2) A deposition;

    (3) An arbitration hearing; and

    (4) An examination under oath.

    (e) Court reporters, businesses, entities, insurers or firms providing or arranging for court reporting services are subject to the provisions of this section even if the businesses, entities, insurers or firms are not subject to registration or other regulatory oversight in the state.

§47-27-2. Prohibited conduct.

    (a) A legal proceeding may not be reported by:

    (1) An individual who engages in a prohibited action as provided in this section;

    (2)       A party to the action;

    (3) A relative, employee or attorney of one of the parties;

    (4) Someone with a financial interest in the action or its outcome; or

    (5) A relative, employee or attorney of someone with a financial interest in the action or its outcome.

    (b) Court reporters may not:

    (1) Base the compensation for the court reporting services on the outcome of the proceeding or otherwise giving the court reporter or court reporting business, entity or firm a financial interest in the action. Court reporters or businesses, entities or firms providing or arranging for court reporting services may not offer or provide court reporting services where payment for those services will be made contingent on the outcome of the action.

    (2) Enter into an agreement, whether formal or informal, for court reporting services which restricts the noticing attorney or party to a legal proceeding from selecting and using the court reporter of his or her own choosing or otherwise requires the noticing attorney or party to a legal proceeding to select or use a court reporter not of his or her own choosing. Before accepting an assignment for court reporting services, the court reporter is obligated to make reasonable efforts to ascertain whether any arrangement exists which is prohibited under this article .

    (3) Allow the format, content or body of the transcript as certified by the court reporter to be manipulated in a manner that increases the cost of the transcript.

    (4) Charge a fee for the electronic copy or paper copy of a transcript that is more than fifty-five percent of the cost of the original transcript, except by agreement of all parties to a legal proceeding. This prohibition does not apply to real-time court reporting services or accelerated transcript delivery requests made by the party requesting a copy of the transcript when the party requesting the original has not requested accelerated delivery.

    (5) Require the attorney purchasing the original or a copy of the transcript to purchase extra services that were neither ordered nor desired from the court reporter as a condition for the sale of the transcript.

§47-27-3. Disclosure and limitations on practices.

    (a) Prior to the commencement of a legal proceeding, and at any time during or following the conclusion of a legal proceeding, an attorney or a party to that legal proceeding has the right to an itemized statement of all rates and charges for all services that have been or will be provided by the court reporter or business, entity or firm providing or arranging for court reporting services to any party to the legal proceeding.

    (b) A court reporter shall certify on the certification page of each transcript of a legal proceeding, the following: “I certify that the attached transcript meets the requirements set forth within article twenty-seven, chapter forty-seven of the West Virginia Code.”

    (c) Each transcript of a legal proceeding shall conform to the following minimum standards:

    (1) No fewer than twenty-four typed lines on standard 8-1/2 by 11 inches pages.

    (2) No fewer than nine characters to the typed inch.

    (3) A full line of text shall be no less than fifty-six characters and/or spaces unless timestamping is used, in which case no fewer than forty-eight characters and/or spaces shall be used on a full line of text.

    (4) Timestamping may only be printed on a transcript under any of the following circumstances: (A) when a deposition is videotaped; (B) when requested by counsel on the record; and (C) when a transcript will have not less than forty-eight characters per line.

    (5) The page numbers, headers and footers do not count as a line of text. Line numbers and the spaces preceding text do not count as a character.

    (6) Each question and answer to begin on a separate line.

    (7) Each question and answer to begin no more than five spaces from the left-hand margin with no more than five spaces from the question and answer to the text.

    (8) Carry-over question and answer lines to begin at the left-hand margin.

    (9) Colloquy material to begin no more than fifteen spaces from the left-hand margin, with carryover colloquy to the left-hand margin. In colloquy, text shall begin no more than two spaces after the colon following speaker identification.

    (10) Quoted material to begin no more than fifteen spaces from the left-hand margin, with carry-over lines to begin no more than ten spaces from the left-hand margin.

    (11) Parentheticals and exhibit markings to begin no more than fifteen spaces from the left-hand margin, with carry-over lines to begin no more than fifteen spaces from the left-hand margin.

    (d) The provisions of sections one, two or three of this article may not be waived or otherwise modified.

§47-27-4. Penalties for violations; civil actions; and damages.

    A court reporter or the entity that produces and bills for the transcript which violates the provisions of sections two or three of this article is subject to civil penalty in a court of competent jurisdiction as follows: Any party to a civil action, a court reporter, attorney or other person who has been subject to a violation of the provisions of sections two or three of this article may recover, payable to the prevailing party, a civil penalty for any willful violation of this section and the court shall assess a civil penalty of no less than $2,500 for each violation: Provided, That no more than one civil penalty under this section may be assessed in any one matter pending before the court; and if the court finds that the court reporter has engaged in a course of repeated and willful violations of this section, it may assess an additional civil penalty of up to $5,000 for each violation of this section. For any action filed pursuant to this section, the court, in its discretion, may award all or a portion of the costs of litigation, including reasonable attorney fees, court costs and fees, to the prevailing party.

    The bill (Eng. Com. Sub. for H. B. No. 4294), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4316, Creating the student data accessability, transparency and accountability act.

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

    The following amendments to the bill, from the Committee on Education, were reported by the Clerk, considered simultaneously, and adopted:

    On page three, section five-h, line twenty-six, by striking out the word “and”;

    On page three, section five-h, line thirty, by changing the period to a semicolon;

    On page four, section five-h, line thirty-eight, by changing the period to a semicolon and adding the following:

    (11) “Affective computing” means human-computer interaction in which the device has the ability to detect and appropriately respond to its user’s emotions and other stimuli; and

    (12) “Fair Information Practice Principles” are United States Federal Trade Commission guidelines that represent widely accepted concepts concerning fair information practice in an electronic marketplace.;

    On page seven, section five-h, line one hundred five, by striking out the word “to” and inserting in lieu thereof the word “for”;

    On page ten, section five-h, line one hundred seventy-three, by striking out the word “Officer” and inserting in lieu thereof the word “Manager”;

    On page ten, section five-h, line one hundred seventy-four, by striking out the word “officer” and inserting in lieu thereof the word “manager”;

    On page ten, section five-h, line one hundred seventy-six, by striking out the word “officer” and inserting in lieu thereof the word “manager”;

    And,

    On page twelve, section five-h, line two hundred nineteen, by striking out the word “officer” and inserting in lieu there of the word “manager”.

    At the request of Senator Boley, and by unanimous consent, the bill (Eng. Com. Sub. for H. B. No. 4316), as amended, was advanced to third reading with the right for further amendments to be considered on that reading.

    Eng. Com. Sub. for House Bill No. 4333, Relating to the redirection of certain Lottery revenues to the State Excess Lottery Revenue Fund.

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

    At the request of Senator Unger, and by unanimous consent, the bill was advanced to third reading with the unreported Finance committee amendment pending and the right for further amendments to be considered on that reading.

    Eng. Com. Sub. for House Bill No. 4335, Relating to a child's right to nurse.

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

    At the request of Senator Stollings, as chair of the Committee on Health and Human Resources, and by unanimous consent, the unreported Health and Human Resources committee amendment to the bill was withdrawn.

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

    On page two, section nineteen, line five, by striking out the comma after the word “location”.

    At the request of Senator Barnes, and by unanimous consent, the bill was advanced to third reading with the right for further amendments to be considered on that reading.

    Eng. Com. Sub. for House Bill No. 4339, Ensuring that moneys from the Solid Waste Authority Closure Cost Assistance Fund are available to facilitate the closure of the Elkins-Randolph County Landfill and the Webster County Landfill.

    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 seven, section twelve, after line eighty-nine, by adding a new subsection, designated subsection (i), to read as follows:

    (i) The Prichard Landfill in Wayne County is eligible for funds from the Closure Cost Assistance Fund necessary to complete post closure maintenance and monitoring upon the filing of an appropriate application. In the event of a permit transfer, neither the State nor the Wayne County economic development authority or entity may assume any liability from the private landfill other than post closure maintenance and monitoring costs.

    The bill (Eng. Com. Sub. for H. B. No. 4339), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4343, West Virginia Project Launchpad Act.

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

    The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:

    On page thirty-seven, section four, line thirteen, by striking out the word “two” and inserting in lieu thereof the word “three”;

    On page thirty-nine, section four, lines forty-six through fifty-one, by striking out all of subsection (g) and inserting in lieu thereof a new subsection, designated subsection (g), to read as follows:

    (g) Duration of launchpad designation. -- The designation of a geographic area as a West Virginia project launchpad for economic development is for a period not to exceed eight years, beginning January 1, 2015 and ending December 31, 2022, unless the launchpad is sooner decertified as provided in this article, or the ending date is extended by the Legislature.;

    On page forty, section five, line one, by striking out “January 1, 2015” and inserting in lieu thereof “December 30, 2014”;

    On page fifty-six, section ten, line sixty-three, by striking out “2025” and inserting in lieu thereof “2019”;

    On page sixty-five, section seventeen, lines five through seven, by striking out all of subdivision (1);

    On page sixty-six, section seventeen, line eight, by striking out "(2)" and inserting in lieu thereof "(1)";

    On page sixty-six, section seventeen, lines twenty-four through seventy, by striking out all of subdivision (3) and inserting in lieu thereof a new subdivision, designated subdivision (2), to read as follows:

    (2) All of the following:

    (A) Net gains or income, less net losses, derived by a resident or nonresident of a West Virginia project launchpad for economic development from the sale, exchange or other disposition of real or tangible personal property located in a West Virginia project launchpad for economic development as determined in accordance with generally accepted accounting principles and practices. The exemption provided in this paragraph (A) shall not apply to the sale, exchange or other disposition of any stock of goods, merchandise or inventory, or any operational assets unless the transfer is in connection with the sale, exchange or other disposition of all of the assets in complete liquidation of a qualified business located in a West Virginia project launchpad for economic development. This paragraph (A) shall also apply to intangible personal property employed in a trade, profession or business that is a qualified business in a West Virginia project launchpad for economic development, but only when transferred in connection with a sale, exchange or other disposition of all of the assets in complete liquidation of the qualified business located in the West Virginia project launchpad for economic development.

    (B) The exemption from income for gain or loss provided in subparagraphs (i) and (ii) of this paragraph (B) shall be prorated based on the following:

    (i) In the case of gains, less net losses, in this subparagraph (i), the percentage of time, based on calendar days, the property located in a West Virginia project launchpad for economic development was held by a resident or nonresident of the West Virginia project launchpad for economic development during the time period the West Virginia project launchpad for economic development was in effect in relation to the total time the property was held; and

    (ii) In the case of gains, less net losses, in this subparagraph (ii), the percentage of time, based on calendar days, the property was held by the business while a resident of a West Virginia project launchpad for economic development in relation to the total time the property was held by the person or business.;

    On page sixty-nine, section seventeen, line seventy-one, by striking out "(4)" and inserting in lieu thereof "(3)";

    On page seventy, section seventeen, lines ninety-one through ninety-six, by striking out all of subdivisions (5) and (6);

    And by renumbering the remaining subdivision;

    On page seventy-one, section seventeen, line one hundred sixteen, by striking out “(2), (3) and (4)” and inserting in lieu thereof “(1), (2) and (3)”;

    On page eighty-nine, section twenty-four, by striking out the section caption and substituting therefor a new section caption, to read as follows:

§5B-2I-24. Local business and occupation taxes and net profits taxes.;

    On pages eighty-nine and ninety, section twenty-four, lines one through twenty-five, by striking out all of subsection (a) and inserting in lieu thereof a new subsection, designated subsection (a), to read as follows:

    (a) General exemption. -- A municipal corporation or county commission or county council that has enacted any tax on the privilege of engaging in any business activity, profession or occupation, measured by gross receipts or net profits, may impose that tax on persons or qualified businesses located within the boundaries of an authorized West Virginia project launchpad for economic development. The municipal corporation or county commission or county council shall exempt from the imposition or operation of the local tax ordinances, statutes, regulations or otherwise:

    (1) The business gross receipts for operations conducted by a qualified business within an authorized West Virginia project launchpad for economic development; and

    (2) The net profits of a qualified business attributable to business activity conducted within an authorized West Virginia project launchpad for economic development when imposed by the qualified political subdivision where that qualified business is located.

    No exemption may be granted for operations conducted, for earned income received or for activities conducted prior to designation of the real property as part of an authorized West Virginia project launchpad for economic development.;

    On page ninety-one, section twenty-four, line thirty-three, by striking out all of subdivision (2);

    And by renumbering the remaining subdivision;

    On page ninety-eight, section thirty-one, line six, by striking out “2019, 2023, 2027 and 2031” and inserting in lieu thereof “2019 and 2023”;

    On page one hundred, section thirty-six, line one, by striking out “(a)”;

    On pages one hundred one and one hundred two, section thirty-six, lines twenty-two through twenty-eight, by striking out all of subsection (b);

    On page one hundred three, section forty-one, line two, by striking out “2030” and inserting in lieu thereof “2022”;

    On page one hundred four, section three, lines two and three, by striking out the words “and improvements to real property”;

    On page one hundred five, section four, lines two and three, by striking out the words “and improvements to real property”;

    On page one hundred five, section four, line ten, by striking out the words “and improvements to real property”;

    On page one hundred six, section four, lines twenty and twenty-one, by striking out the words “and improvements to real property”;

    On page one hundred six, section four, line twenty-seven, by striking out the words “and improvements to real property”;

    On page one hundred nine, section two, line four, by striking out the words “this state” and inserting in lieu thereof the words “a launchpad established in article two-i, chapter five-b of this code”;

    On page one hundred twelve, section five, lines one through four, by striking out all of subsection (a) and inserting in lieu thereof a new subsection, designated subsection (a), to read as follows:

    (a) Requirement. -- A qualified company that enters into an agreement must create at least five new jobs in a launchpad established pursuant to article two-i, chapter five-b of this code, within two years of entering into the agreement under section eight of this article.;

    On pages one hundred thirteen and one hundred fourteen, section five, lines twenty-two through twenty-six, by striking out all of subsection (c) and inserting in lieu thereof a new subsection, designated subsection (c), to read as follows:

    (c) When the qualified company certifies that it has a student loan payment assistance program that provides student loan assistance benefits to its West Virginia employees, then the words “ninety-five percent” shall be substituted for “seventy-five percent” in subsection (b) of this section.;

    And,

    On page one hundred fourteen, section five, line thirty-six, after the word “article” by inserting the words “and that the amount of taxes withheld will still be allowed as a credit when the employee files his or her West Virginia income tax return”.

    The bill (Eng. Com. Sub. for H. B. No. 4343), as amended, was then ordered to third reading.

    Eng. House Bill No. 4346, Establishing separate standards of performance for carbon dioxide emissions.

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

    The following amendment to the bill, from the Committee on Energy, Industry and Mining, was reported by the Clerk:

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

ARTICLE 5. AIR POLLUTION CONTROL.

§22-5-20. Regulating carbon dioxide emissions from existing fossil fuel-fired electric generating units.

    (a) The Department of Environmental Protection, in consultation with the Department of Environmental Protection Advisory Council, shall establish separate standards of performance for carbon dioxide emissions from existing coal-fired electric generating units in accordance with subsection (b) and from existing natural gas-fired electric generating units in accordance with subsection (c). The standards of performance developed and proposed under any state plan to comply with Section 111 of the Clean Air Act should allow for greater flexibility and take into consideration the additional factors set forth in subsection (d) as a part of any state plan to achieve targeted reductions in greenhouse gas emissions which are equivalent or comparable to the goals and marks established by federal guidelines.

    (b) Standards of performance for existing coal-fired electric generating units. -- Except as provided under subsection (d), the standard of performance established for existing coal-fired electric generating units under subsection (a) shall be based upon:

    (1) The best system of emission reduction which, taking into account the cost of achieving the reduction and any nonair quality health and environmental impact and energy requirements, has been adequately demonstrated for coal-fired electric generating units that are subject to the standard of performance;

    (2) Reductions in emissions of carbon dioxide that can reasonably be achieved through measures undertaken at each coal-fired electric generating unit; and

    (3) Efficiency and other measures that can be undertaken at each coal-fired electric generating unit to reduce carbon dioxide emissions from the unit without switching from coal to other fuels, cofiring other fuels with coal or limiting the economic utilization of the unit; and

    (4) Additional regulatory mechanisms that provide flexibility in complying with the standards, including: (A) Emissions trading with credited reduction for any unit that was in operation January 1, 2011, or thereafter, and fleet wide averaging; (B) other alternative implementation measures that are determined to further the interests of West Virginia and its citizens including state programs such as clean energy programs that mandate reduced energy consumption resulting in avoided emissions, emission reductions, or a reduction in the state’s carbon dioxide intensity whereby the state shall credit equally based on the output to the generators located in the state that are subject to carbon dioxide performance standard rules under Section 111(d) of the Clean Air Act.

    (c) Standards of performance for existing natural gas-fired electric generating units. -- Except as provided in subsection (d), the standard of performance established for existing gas-fired electric generating units under subsection (a) shall be based upon:

    (1) The best system of emission reduction which, taking into account the cost of achieving the reduction and any nonair quality health and environmental impact and energy requirements, has been adequately demonstrated for natural gas-fired electric generating units that are subject to the standard of performance;

    (2) Reductions in emissions of carbon dioxide that can reasonably be achieved through measures at each natural gas-fired electric generating unit; and

    (3) Efficiency and other measures that can be undertaken at the unit to reduce carbon dioxide emissions from the unit without switching from natural gas to other lower-carbon fuels or limiting the economic utilization of the unit.

    (d) Flexibility in establishing standards of performance. -- In developing a flexible state plan to achieve targeted reductions in greenhouse gas emissions, the Department of Environmental Protection shall endeavor to establish an achievable standard of performance for any existing fossil fuel-fired electric generating unit, and examine whether less stringent performance standards or longer compliance schedules may be implemented or adopted for existing fossil fuel-fired electric generating units in comparison to the performance standards established for new, modified or reconstructed generating units, based on the following:

    (1) Consumer impacts, including any disproportionate impacts of energy price increases on lower income populations;

    (2) Nonair quality health and environmental impacts;

    (3) Projected energy requirements;

    (4) Market-based considerations in achieving performance standards;

    (5) The costs of achieving emission reductions due to factors such as plant age, location or basic process design;

    (6) Physical difficulties with or any apparent inability to feasibly implement certain emission reduction measures;

    (7) The absolute cost of applying the performance standard to the unit;

    (8) The expected remaining useful life of the unit;

    (9) The impacts of closing the unit, including economic consequences such as expected job losses, if the unit is unable to comply with the performance standard;

    (10) Impacts on the reliability of the system; and

    (11) Any other factors specific to the unit that make application of a modified or less stringent standard or a longer compliance schedule more reasonable.

    (e) State plan requirement. -- The Department of Environmental Protection shall propose or submit to the U. S. Environmental Protection Agency a state plan which includes achievable performance standards for existing sources, and a combination of additional measures designed to meet the U. S. Environmental Protection Agency’s guidelines, consistent with the considerations,

goals and parameters set forth in this section.

    On motion of Senator Cann, the following amendment to the Energy, Industry and Mining committee amendment to the bill (Eng. H. B. No. 4346) was next reported by the Clerk and adopted:

    On page two, section twenty, subsection (b), subdivision (3), after the word "fuels" by striking out the comma and the words “cofiring other fuels with coal”.

    The question now being on the adoption of the Energy, Industry and Mining committee amendment to the bill, as amended, the same was put and prevailed.

    The bill (Eng. H. B. No. 4346), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4347, Relating to affirmative defenses against mechanics' liens.

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

    Eng. Com. Sub. for House Bill No. 4349, Clarifying retirement dependent child scholarship and burial benefits under a Qualified Domestic Relations Order.

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

    Eng. Com. Sub. for House Bill No. 4360, Relating to consumer credit protection.

    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:

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

ARTICLE 2. CONSUMER CREDIT PROTECTION.

§46A-2-128. Unfair or unconscionable means.

    No debt collector shall may use unfair or unconscionable means to collect or attempt to collect any claim. Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:

    (a) The seeking or obtaining of any written statement or acknowledgment in any form that specifies that a consumer's obligation is one incurred for necessaries of life where the original obligation was not in fact incurred for such necessaries;

    (b) The seeking or obtaining of any written statement or acknowledgment in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, without clearly disclosing the nature and consequences of such affirmation and the fact that the consumer is not legally obligated to make such affirmation;

    (c) The collection or the attempt to collect from the consumer all or any part of the debt collector's fee or charge for services rendered: Provided, That attorney's fees, court costs and other reasonable collection costs and charges necessary for the collection of any amount due upon delinquent educational loans made by any institution of higher education within this state may be recovered when the terms of the obligation so provide. Recovery of attorney's fees and collection costs may not exceed thirty-three and one-third percent of the amount due and owing to any such institution: Provided, however, That nothing contained in this subsection shall be construed to limit or prohibit any institution of higher education from paying additional attorney fees and collection costs as long as such additional attorney fees and collection costs do not exceed an amount equal to five percent of the amount of the debt actually recovered and such additional attorney fees and collection costs are deducted or paid from the amount of the debt recovered for the institution or paid from other funds available to the institution;

    (d) The collection of or the attempt to collect any interest or other charge, fee or expense incidental to the principal obligation unless such interest or incidental fee, charge or expense is expressly authorized by the agreement creating the obligation and by statute; and

    (e) Any communication with a consumer whenever it appears that the consumer is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondence, return phone calls or discuss the obligation in question or unless the attorney consents to direct communication; and

    (f) When the debt is beyond the statute of limitations for filing a legal action for collection, failing to provide the following disclosure informing the consumer in its initial written communication with such consumer that:

    (1) When collecting on a debt that is not past the date for obsolescence provided for in Section 605(a) of the Fair Credit Reporting Act, 15 U. S. C. 1681c: "The law limits how long you can be sued on a debt. Because of the age of your debt, (INSERT OWNER NAME) cannot sue you for it. If you do not pay the debt, (INSERT OWNER NAME) may report or continue to report it to the credit reporting agencies as unpaid"; and

    (2) When collecting on debt that is past the date for obsolescence provided for in Section 605(a) of the Fair Credit Reporting Act, 15 U. S. C. 1681c: "The law limits how long you can be sued on a debt. Because of the age of your debt, (INSERT OWNER NAME) cannot sue you for it and (INSERT OWNER NAME) cannot report it to any credit reporting agencies.

    The bill (Eng. Com. Sub. for H. B. No. 4360), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4432, Adopting Principle Based Reserving as the method by which life insurance company reserves are calculated.

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

    Eng. Com. Sub. for House Bill No. 4480, Relating to investment of the Acid Mine Drainage Fund.

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

    Eng. Com. Sub. for House Bill No. 4560, Relating to reimbursement for copies of medical records.

    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:

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

ARTICLE 29. HEALTH CARE RECORDS.

§16-29-1. Copies of health care records to be furnished to patients.

    (a) Any licensed, certified or registered health care provider so licensed, certified or registered under the laws of this state shall, upon the written request of a patient, his or her authorized agent or authorized representative, within a reasonable time, furnish a copy, as requested in the form of a paper copy or, if requested and if the provider routinely stores records electronically and has the ability to so provide, a copy in an electronic format including, but not limited to, a copy saved upon a computer disc, an electronically mailed copy or a copy saved upon a portable memory device of all or a portion of the patient's record to the patient, his or her authorized agent or authorized representative subject to the following exceptions:

    (a) (1) In the case of a patient receiving treatment for psychiatric or psychological problems, a summary of the record shall be made available to the patient, his or her authorized agent or authorized representative following termination of the treatment program.

    (2) The furnishing of a copy, as requested, of the reports of X-ray examinations, electrocardiograms and other diagnostic procedures shall be deemed to comply with the provisions of this article.

    (b) Nothing in this article shall be construed to require a health care provider responsible for diagnosis, treatment or administering health care services in the case of minors for birth control, prenatal care, drug rehabilitation or related services or venereal disease according to any provision of this code, to release patient records of such diagnosis, treatment or provision of health care as aforesaid to a parent or guardian, without prior written consent therefor from the patient, nor shall anything in this article be construed to apply to persons regulated under the provisions of chapter eighteen of this code or the rules and regulations established thereunder.

    (c) The furnishing of a copy, as requested, of the reports of X-ray examinations, electrocardiograms and other diagnostic procedures shall be deemed to comply with the provisions of this article: Provided, That original radiological study film from a radiological exam conducted pursuant to a request from a patient or patient's representative shall be provided to the patient or patient's representative upon written request and payment for the exam. The health care provider shall not be required to interpret or retain copies of the film and shall be immune from liability resulting from any action relating to the absence of the original radiological film from the patient's record.

    (d) (c) This article shall does not apply to records subpoenaed or otherwise requested through court process.

    (e) (d) The provisions of this article may be enforced by a patient, authorized agent or authorized representative, and any health care provider found to be in violation of this article shall pay any attorney fees and costs, including court costs incurred in the course of such enforcement.

    (f) (e) Nothing in this article shall be construed to apply to health care records maintained by health care providers governed by the AIDS-related Medical Testing and Records Confidentiality Act under the provisions of article three-c of this chapter.

§16-29-2. Reasonable expenses to be reimbursed.

    (a) The provider shall be reimbursed by the person requesting in writing a copy of the records at the time of delivery for all reasonable expenses incurred in complying with this article: Provided, That the cost may not exceed $0.75 per page for the copying of any record or records which have already been reduced to written form and a search fee may not exceed $10: A person requesting records from a provider shall place the request in writing and pay a reasonable, cost-based fee, at the time of delivery. Notwithstanding any other section of the code or rule, the fee shall be based on the provider’s cost of:(1) Labor for copying the requested records if in paper, or for placing the records in electronic media; (2)Supplies for creating the paper copy or electronic media; and

    (3) Postage if the person requested that the records be mailed.

If a person requests or agrees to an explanation or summary of the records, the provider may charge a reasonable cost-based fee for the labor cost if preparing the explanation or the summary; for the supplies for creating the explanation or summary; and for the cost of postage, if the person requested that the records be mailed. If the records are stored with a third party or a third party responds to the request for records in paper or electronic media, the provider may charge additionally for the actual charges incurred from the third party.

    (b) The labor for copying under this section shall be twenty two dollars and fifty cents per hour and shall be adjusted to reflect the consumer price index for medical care services such that the base amount and the per page charge shall be increased by the proportional consumer price index in effects as of October of the calendar year in which the request was made, rounded to the nearest dollar.

    (b) (c) Notwithstanding the provisions of subsection (a) of this section, a provider shall not impose a charge on an indigent person or his or her authorized representative if the medical records are necessary for the purpose of supporting a claim or appeal under any provisions of the Social Security Act, 42 U.S.C. §301 et seq.

    For purposes of this section, a person is considered indigent if he or she:

    (1) Is represented by an organization or affiliated pro bono program that provides legal assistance to indigents; or

    (2) Verifies on a medical records request and release form that the records are requested for purposes of supporting a Social Security claim or appeal and submits with the release form reasonable proof that the person is financially unable to pay full copying charges by reason of unemployment, disability, income below the federal poverty level, or receipt of state or federal income assistance.

    (d) (e) Any person requesting free copies of written medical records pursuant to the provisions of subsection (b) of this section is limited to one set of copies per provider. Any additional requests for the same records from the same provider shall be subject to the fee provisions of subsection (a).

    The bill (Eng. Com. Sub. for H. B. No. 4560), as amended, was then ordered to third reading.

    Eng. House Bill No. 4588, Protecting unborn children who are capable of experiencing pain by prohibiting abortion after twenty weeks.

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

    At the request of Senator Stollings, as chair of the Committee on Health and Human Resources, and by unanimous consent, the unreported Health and Human Resources committee amendment to the bill was withdrawn.

    The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:

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

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-2M-1, §16-2M-2, §16-2M-3, §16-2M-4, §16-2M-5 and §16-2M-6, all to read as follows:

ARTICLE 2M. THE PAIN-CAPABLE FETUS PROTECTION ACT.

§16-2M-1. Findings.

    The Legislature finds that there is substantial medical evidence that a fetus is capable of experiencing pain by twenty weeks after fertilization.

§16-2M-2. Definitions.

    For purposes of this article, the following words and phrases have the following meanings:

    (1) “Attempt to perform or induce an abortion” means an act or an omission of a statutorily required act that, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of the applicable provisions of this code.

    (2) “Fertilization” means the fusion of a human spermatozoon with a human ovum.

    (3) “Fetus” means the developing young in the uterus, specifically the unborn offspring in the postembryonic period from nine weeks after fertilization until birth.

    (4) “Medical emergency” means a condition that, on the basis of a reasonably prudent physician’s reasonable medical judgment, so complicates the medical condition of a pregnant female that it necessitates the immediate abortion of her pregnancy without first determining post-fertilization age to avert her death or for which the delay necessary to determine post-fertilization age will create serious risk of substantial and irreversible physical impairment of a major bodily function.

    (5) “Non-medically viable fetus” means a fetus that contains sufficient fetal anomalies so as to render the fetus medically futile or incompatible with life outside the womb in the reasonable medical judgment of a reasonably prudent physician.

    (6) “Physician” means a person with an unlimited license to practice allopathic medicine pursuant to article three of chapter thirty of this code or osteopathic medicine pursuant fourteen of chapter thirty of this code.

    (7) “Post-fertilization age” means the age of the fetus as calculated from the fertilization of the human ovum.

    (8) “Probable post-fertilization age of the fetus” means, in reasonable medical judgment and with reasonable probability, the post-fertilization age of the fetus at the time an abortion is planned to be performed.

    (9) “Reasonable medical judgment” means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

§16-2M-3. Determination of post-fertilization age.

    Except in the case of a medical emergency or a non-medically viable fetus, no abortion may be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post-fertilization age of the fetus or relied upon such a determination made by another physician. In making this determination, the physician shall make such inquiries of the patient and perform or cause to be performed medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age.

§16-2M-4. Abortion of fetus of twenty or more weeks post-fertilization age prohibited.

    (a) No person may perform or induce, or attempt to perform or induce, an abortion upon a female when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post-fertilization age of the fetus is twenty or more weeks, unless in the reasonable medical judgment of a reasonably prudent physician there exists a non-medically viable fetus or the patient has a condition that, on the basis of a reasonably prudent physician’s reasonable medical judgment, so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function.

    (b) When an abortion upon a patient whose fetus has been determined to have a probable post-fertilization age of twenty or more weeks is not prohibited by subsection (a) of this section, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the fetus to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the patient or of the substantial and irreversible physical impairment of a major bodily function of the patient than would other available methods.

§16-2M-5. Reporting.

    (a) Any physician who performs or induces an abortion shall report to the Bureau for Public Health. The reporting shall be on a schedule and on forms set forth by the Secretary of the Department of Health and Human Resources no later than December 31, 2014. The reports shall include the following information:

    (1) Post-fertilization age:

    (A) If a determination of probable post-fertilization age was made, whether ultrasound was employed in making the determination, and the week of probable post-fertilization age determined.

    (B) If a determination of probable post-fertilization age was not made, the basis of the determination that a medical emergency existed or that there existed a non-medically viable fetus.

    (2) Method of abortion;

    (3) If the probable post-fertilization age was determined to be twenty or more weeks, the basis of the determination that there existed a non-medically viable fetus or that the patient had a condition which so complicated the medical condition of the patient that it necessitated the abortion of her pregnancy in order to avert her death or avert a serious risk of substantial and irreversible physical impairment of a major bodily function; and

    (4) If the probable post-fertilization age was determined to be twenty or more weeks, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the fetus to survive and, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the patient or of the substantial and irreversible physical impairment of a major bodily function of the patient than would other available methods.

    (b) Reports required by subsection (a) of this section may not contain the name or the address of the patient whose pregnancy was terminated nor may the report contain any information identifying the patient. These reports shall be maintained in strict confidence by the department, may not be available for public inspection, and may not be made available except pursuant to court order.

    (c) Beginning June 30, 2016, and annually thereafter, the Department of Health and Human Resources shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (a) of this section. Each report shall provide the statistics for all previous calendar years from the effective date of this section, adjusted to reflect any additional information from late or corrected reports. The Department of Health and Human Resources shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any patient upon whom an abortion was performed or induced.

§16-2M-6. Penalties.

    (a) Any person who intentionally or recklessly performs or induces an abortion in violation of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined up to $4,000.

    (b) No penalty may be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.

    On motion of Senator Palumbo, the following amendment to the Judiciary committee amendment to the bill (Eng. H. B. No. 4588) was reported by the Clerk:

    On page one, section one, by striking out the word “twenty” and inserting in lieu thereof the word “twenty-two”;

    On page one, section one, after the word “fertilization” by inserting the words “or at the point of medical viability”;

    On page three, section four, by striking out the section caption and substituting therefor a new section caption, to read as follows:

§16-2M-4. Abortion of fetus of twenty-two or more weeks post-fertilization age or that is medically viable prohibited.;

    On page four, section four, subsection (a), by striking out the word “twenty” and inserting in lieu thereof the word “twenty-two”;

    On page four, section four, subsection (a), after the word “weeks” by inserting the words “or the fetus is medically viable”;

    On page four, section four, subsection (a), by striking out the word “twenty” and inserting in lieu thereof the word “twenty-two”;

    On page four, section four, subsection (a), after the word “weeks” by inserting the words “or the fetus is medically viable”;

    On page five, section five, subsection (a), subdivision (3), by striking out the word “twenty” and inserting in lieu thereof the word “twenty-two”;

    On page five, section five, subsection (a), subdivision (3), after the word “weeks” by inserting the words “or the fetus was determined to be medically viable”;

    On page five, section five, subsection (a), subdivision (4), by striking out the word “twenty” and inserting in lieu thereof the word “twenty-two”;

    And,

    On page five, section five, subsection (a), subdivision (4), after the word “weeks” by inserting the words “or if the fetus was determined to be medically viable”.

    Following extended discussion,

    The question being on the adoption of Senator Palumbo's amendment to the Judiciary committee amendment to the bill, the same was put and did not prevail.

    Thereafter, at the request of Senator McCabe, and by unanimous consent, the remarks by Senators Palumbo, Wells, Barnes, M. Hall, Snyder and Cann regarding the adoption of Senator Palumbo's amendment to the Judiciary committee amendment to Engrossed House Bill No. 4588 were ordered printed in the Appendix to the Journal.

    The question now being on the adoption of the Judiciary committee amendment to the bill, the same was put and prevailed.

    The bill (Eng. H. B. No. 4588), as amended, was then ordered to third reading.

    Thereafter, at the request of Senator McCabe, and by unanimous consent, the remarks by Senator Palumbo regarding the adoption of the Judiciary committee amendment to Engrossed House Bill No. 4588 were ordered printed in the Appendix to the Journal.

    Eng. House Bill No. 4601, Relating to fiscal management and regulation of publicly-owned utilities.

    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:

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

    That §16-13A-18a of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §24-2-4a and §24-2-4b of said code be amended and reenacted, all to read as follows:

CHAPTER 16. PUBLIC HEALTH

ARTICLE 13A. PUBLIC SERVICE DISTRICTS.

§16-13A-18a. . Sale, lease or rental of water, sewer, stormwater or gas system by district; distribution of proceeds.

    In any case where a public service district owns a water, sewer, stormwater or gas system, and a majority of not less than sixty percent of the members of the public service board thereof deem it for the best interests of the district to sell, lease or rent such water, sewer, stormwater or gas system to any municipality or privately-owned water, sewer, stormwater or gas system, or to any water, sewer, stormwater or gas system owned by an adjacent public service district, the board may so sell, lease or rent such water, sewer, stormwater or gas system upon such terms and conditions as said board, in its discretion, considers in the best interests of the district: Provided, That such sale, leasing or rental may be made only upon: (1) The publication of notice of a hearing before the board of the public service district, as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in a newspaper published and of general circulation in the county or counties wherein the district is located, such publication to be made not earlier than twenty days and not later than seven days prior to the hearing; (2) approval by the county commission or commissions of the county or counties in which the district operates; and (3) approval by the public service commission of West Virginia.

    In the event of any such sale, the proceeds thereof, if any, remaining after payment of all outstanding bonds and other obligations of the district, shall be ratably distributed to any persons who have made contributions in aid of construction of such water, sewer, stormwater or gas system, such distribution not to exceed the actual amount of any such contribution, without interest, and any balance of funds thereafter remaining shall be paid to the county commission of the county in which the major portion of such water, sewer, stormwater or gas system is located to be placed in the general funds of such county commission: Provided, That no such distribution shall be required in the case of a sale between political subdivisions of the state.

CHAPTER 24. PUBLIC SERVICE COMMISSION

ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.

§24-2-4a. Procedure for changing rates after June 30, 1981.

    After June 30, 1981, no public utility subject to this chapter except those utilities subject to the provisions of section four-b and section four-d of this article, shall change, suspend or annul any rate, joint rate, charge, rental or classification except after thirty days' notice to the commission and the public, which notice shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates or charges shall go into effect; but the commission may enter an order suspending the proposed rate as hereinafter provided. The proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time, and kept open to public inspection: Provided, That the commission may, in its discretion, and for good cause shown, allow changes upon less time than the notice herein specified, or may modify the requirements of this section in respect to publishing, posting and filing of tariffs, either by particular instructions or by general order.

    Whenever there shall be filed with the commission any schedule stating a change in the rates or charges, or joint rates or charges, or stating a new individual or joint rate or charge or joint classification or any new individual or joint regulation or practice affecting any rate or charge, the commission may either upon complaint or upon its own initiative without complaint enter upon a hearing concerning the propriety of such rate, charge, classification, regulation or practice; and, if the commission so orders, it may proceed without answer or other form of pleading by the interested parties, but upon reasonable notice, and, pending such hearing and the decisions thereon, the commission, upon filing with such schedule and delivering to the public utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than two hundred seventy days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge, classification, regulation or practice goes into effect, the commission may make such order in reference to such rate, charge, classification, regulation or practice as would be proper in a proceeding initiated after the rate, charge, classification, regulation or practice had become effective: and Provided, That in the case of a public utility having two thousand five hundred customers or less and which is not principally owned by any other public utility corporation or public utility holding corporation, the commission may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than one hundred twenty days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and in the case of a public utility having more than two thousand five hundred customers, but not more than five thousand customers, and which is not principally owned by any other public utility corporation or public utility holding corporation, the commission may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than one hundred fifty days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and in the case of a public utility having more than five thousand customers, but not more than seven thousand five hundred customers, and which is not principally owned by any other public utility corporation or public utility holding corporation, the commission may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than one hundred eighty days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge, classification, regulation or practice goes into effect, the commission may make such order in reference to such rate, charge, classification, regulation or practice as would be proper in a proceeding initiated after the rate, charge, classification, regulation or practice had become effective: Provided, however, That, in the case of rates established or proposed that increase by less than twenty-five percent of the gross revenue of the public service district, there shall be no suspension period in the case of rates established by a public service district pursuant to section nine, article thirteen-a, chapter sixteen of this code, and the proposed rates of public service districts shall go into effect upon the date of filing with the commission, subject to refund modification at the conclusion of the commission proceeding. In the case of rates established or proposed that increase by more than twenty-five percent of the gross revenue of the public service district, the district may apply for, and the commission may grant, a waiver of the suspension period and allow rates to be effective upon the date of filing with the commission. The public service district shall provide notice by Class 1 legal advertisement in a newspaper of general circulation in its service territory of the percentage increase in rates at least fourteen days prior to the effective date of the increased rates. Any refund determined to be determined to be due and owing as a result of any difference between any final rates approved the commission and the rates placed into effect subject to refund shall be refunded by the public service district as a credit against each customer’s account for a period of up to six months after entry of the commission’s final order. Any remaining balance which is not fully credited by credit within six months after entry of the commission’s final order shall be directly refunded to the customer by check: Provided, however, That if any such hearing and decision thereon is not concluded within the periods of suspension, as above stated, such rate, charge, classification, regulation or practice shall go into effect at the end of such period not subject to refund: Provided further, That if any such rate, charge, classification, regulation or practice goes into effect because of the failure of the commission to reach a decision, the same shall not preclude the commission from rendering a decision with respect thereto which would disapprove, reduce or modify any such proposed rate, charge, classification, regulation or practice, in whole or in part, but any such disapproval, reduction or modification shall not be deemed to require a refund to the customers of such utility as to any rate, charge, classification, regulation or practice so disapproved, reduced or modified. The fact of any rate, charge, classification, regulation or practice going into effect by reason of the commission's failure to act thereon shall not affect the commission's power and authority to subsequently act with respect to any such application or change in any rate, charge, classification, regulation or practice. Any rate, charge, classification, regulation or practice which shall be approved, disapproved, modified or changed, in whole or in part, by decision of the commission shall remain in effect as so approved, disapproved, modified or changed during the period or pendency of any subsequent hearing thereon or appeal therefrom. Orders of the commission affecting rates, charges, classifications, regulations or practices which have gone into effect automatically at the end of the suspension period are prospective in effect only. At any hearing involving a rate sought to be increased or involving the change of any rate, charge, classification, regulation or practice, the burden of proof to show the justness and reasonableness of the increased rate or proposed increased rate, or the proposed change of rate, charge, classification, regulation or practice shall be upon the public utility making application for such change. The commission shall, whenever practicable and within budgetary constraints, conduct one or more public hearings within the area served by the public utility making application for such increase or change, for the purpose of obtaining comments and evidence on the matter from local ratepayers.

    Each public utility subject to the provisions of this section shall be required to establish, in a written report which shall be incorporated into each general rate case application, that it has thoroughly investigated and considered the emerging and state-of-the-art concepts in the utility management, rate design and conservation as reported by the commission under subsection ©, section one, article one of this chapter, as alternatives to, or in mitigation of, any rate increase. The utility report shall contain as to each concept considered the reasons for adoption or rejection of each. When in any case pending before the commission all evidence shall have been taken and the hearing completed, the commission shall render a decision in such case. The failure of the commission to render a decision with respect to any such proposed change in any such rate, charge, classification, regulation or practice within the various time periods specified in this section after the application therefor shall constitute neglect of duty on the part of the commission and each member thereof.

    Where more than twenty members of the public are affected by a proposed change in rates, it shall be a sufficient notice to the public within the meaning of this section if such notice is published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the community where the majority of the resident members of the public affected by such change reside or, in case of nonresidents, have their principal place of business within this state.

    The commission may order rates into effect subject to refund, plus interest in the discretion of the commission, in cases in which the commission determines that a temporary or interim rate increase is necessary for the utility to avoid financial distress, or in which the costs upon which these rates are based are subject to modification by the commission or another regulatory commission and to refund to the public utility. In such case the commission may require such public utility to enter into a bond in an amount deemed by the commission to be reasonable and conditioned upon the refund to the persons or parties entitled thereto of the amount of the excess if such rates so put into effect are subsequently determined to be higher than those finally fixed for such utility.

    No utility may make application for a general rate increase while another general rate application is pending before the commission and not finally acted upon, except pursuant to the provisions of the next preceding paragraph of this section. The provisions of this paragraph shall not be construed so as to prohibit any such rate application from being made while a previous application which has been finally acted upon by the commission is pending before or upon appeal to the West Virginia supreme court of appeals.

§24-2-4b. Procedures for changing rates of electric and natural gas cooperatives, local exchange services of telephone cooperatives and municipally operated public utilities.

    (a) The rates and charges of electric cooperatives, natural gas cooperatives and municipally operated public utilities, except for municipally operated commercial solid waste facilities as defined in section two, article fifteen, chapter twenty-two of this code, and the rates and charges for local exchange services provided by telephone cooperatives are not subject to the rate approval provisions of section four or four-a of this article, but are subject to the limited rate provisions of this section.

    (b) All rates and charges set by electric cooperatives, natural gas cooperatives and municipally operated public utilities and all rates and charges for local exchange services set by telephone cooperatives shall be just, reasonable, applied without unjust discrimination or preference and based primarily on the costs of providing these services. The rates and charges shall be adopted by the electric, natural gas or telephone cooperative's governing board and in the case of the municipally operated public utility by municipal ordinance to be effective not sooner than forty-five days after adoption: Provided, That notice of intent to effect a rate change shall be specified on the monthly billing statement of the customers of the utility for the month next preceding the month in which the rate change is to become effective or the utility shall give its customers, and in the case of a cooperative, its customers, members and stockholders, other reasonable notices as will allow filing of timely objections to the rate change or full participation in municipal rate legislation. The rates and charges or ordinance shall be filed with the commission, together with any information showing the basis of the rates and charges and other information as the commission considers necessary. Any change in the rates and charges with updated information shall be filed with the commission. If a petition, as set out in subdivision (1), (2) or (3), subsection (c) of this section is received and the electric cooperative, natural gas cooperative or telephone cooperative or municipality has failed to file with the commission the rates and charges with information showing the basis of rates and charges and other information as the commission considers necessary, the suspension period limitation of one hundred twenty days and the one hundred-day period limitation for issuance of an order by a hearing examiner, as contained in subsections (d) and (e) of this section, is tolled until the necessary information is filed. The electric cooperative, natural gas cooperative, telephone cooperative or municipality shall set the date when any new rate or charge is to go into effect.

    (c) The commission shall review and approve or modify the rates upon the filing of a petition within thirty days of the adoption of the ordinance or resolution changing the rates or charges by:

    (1) Any customer aggrieved by the changed rates or charges who presents to the commission a petition signed by not less than twenty-five percent of the customers served by the municipally operated public utility or twenty-five percent of the membership of the electric, natural gas or telephone cooperative residing within the state;

    (2) Any customer who is served by a municipally operated public utility and who resides outside the corporate limits and who is affected by the change in the rates or charges and who presents to the commission a petition alleging discrimination between customers within and without the municipal boundaries. The petition shall be accompanied by evidence of discrimination; or

    (3) Any customer or group of customers who are affected by the change in rates who reside within the municipal boundaries and who present a petition to the commission alleging discrimination between customer or group of customers and other customers of the municipal utility. The petition shall be accompanied by evidence of discrimination.

    (d) (1) The filing of a petition with the commission signed by not less than twenty-five percent of the customers served by the municipally operated public utility or twenty-five percent of the membership of the electric, natural gas or telephone cooperative residing within the state under subdivision (1), subsection © of this section shall suspend the adoption of the rate change contained in the ordinance or resolution for a period of one hundred twenty days from the date the rates or charges would otherwise go into effect or until an order is issued as provided herein.

    (d) (2) Upon sufficient showing of discrimination by customers outside the municipal boundaries or a customer or a group of customers within the municipal boundaries under a petition filed under subdivision (2) or (3), subsection © of this section, the commission shall suspend the adoption of the rate change contained in the ordinance for a period of one hundred twenty days from the date the rates or charges would otherwise go into effect or until an order is issued as provided herein. A municipal rate ordinance enacted pursuant to the provisions of this section and municipal charter or state code that establishes or proposes a rate increase that results in an increase of less than twenty-five percent of the gross revenue of the utility shall be presumed valid and rates shall be allowed to go into effect, subject to refund, upon the date stated in that ordinance. In the case of rates established or proposed that increase by more than twenty-five percent of the gross revenue of the municipally operated public utility, the utility may apply for, and the commission may grant, a waiver of the suspension period and allow rates to be effective upon enactment.

    (e) The commission shall forthwith appoint a hearing examiner from its staff to review the grievances raised by the petitioners. The hearing examiner shall conduct a public hearing and shall, within one hundred days from the date the rates or charges would otherwise go into effect, unless otherwise tolled as provided in subsection (b) of this section, issue an order approving, disapproving or modifying, in whole or in part, the rates or charges imposed by the electric, natural gas or telephone cooperative or by the municipally operated public utility pursuant to this section.

    (f) Upon receipt of a petition for review of the rates under the provisions of subsection © of this section, the commission may exercise the power granted to it under the provisions of section three of this article, consistent with the applicable rate provisions of section twenty, article ten, chapter eight of this code, section four, article nineteen, chapter eight of this code, and section sixteen, article thirteen, chapter sixteen of this code. The commission may determine the method by which the rates are reviewed and may grant and conduct a de novo hearing on the matter if the customer, electric, natural gas or telephone cooperative or municipality requests a hearing.

    (g) A municipal utility shall be required to refund revenues collected from rates enacted that are disapproved or modified upon subsequent order of the commission entered in a proceeding under this section. Any refund determined to be due and owing as a result of any difference between the municipal rates placed into effect subject to refund and any final rates approved the commission shall be refunded by the municipal utility as a credit against each customer’s account for a period of up to six months after entry of the commission’s final order. Any remaining balance which is not fully refunded by credit within six months after entry of the commission’s final order shall be directly refunded to the individual customer by check.

    (g) (h) The commission may, upon petition by a municipality or electric, natural gas or telephone cooperative, allow an interim or emergency rate to take effect, subject to refund or future modification, if it is determined that the interim or emergency rate is necessary to protect the municipality from financial hardship attributable to the purchase of the utility commodity sold, or the commission determines that a temporary or interim rate increase is necessary for the utility to avoid financial distress. In such cases, the commission shall waive the 45-day waiting period provided for in subsection (b) of this section and the one hundred twenty-day suspension period provided for in subsection (d) of this section.

    (h) (i) Notwithstanding any other provision, the commission has no authority or responsibility with regard to the regulation of rates, income, services or contracts by municipally operated public utilities for services which are transmitted and sold outside of the State of West Virginia.

    The bill (Eng. H. B. No. 4601), as amended, was then ordered to third reading.

    Eng. Com. Sub. for House Bill No. 4608, Defining dyslexia and dyscalculia.

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

    At the request of Senator Unger, and by unanimous consent, the Senate returned to the fourth order of business.

    Senator Cookman, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

    Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 7th day of March, 2014, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:

    (S. B. No. 460), Permitting School of Osteopathic Medicine invest certain moneys in its foundation.

    And,

    (Com. Sub. for Com. Sub. for S. B. No. 499), Making Prudent Investor Act primary standard of care for Investment Management Board.

                             Respectfully submitted,

                               Donald H. Cookman,

                                 Chair, Senate Committee.

                               Danny Wells,

                                 Chair, House Committee.

    Senator Palumbo, 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. 3156, Granting a labor organization a privilege from being compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee.

    With amendments from the Committee on Labor pending;

    And has also amended same.

    Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 5, 2014;

    And reports the same back with the recommendation that it do pass as amended by the Committee on Labor to which the bill was first referred; and as last amended by the Committee on the Judiciary.

                             Respectfully submitted,

                               Corey Palumbo,

                                 Chair.

    At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3156) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration and read a second time.

    At the request of Senator Yost, as chair of the Committee on Labor, and by unanimous consent, the unreported Labor committee amendment to the bill was withdrawn.

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

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

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §6C-2-8, to read as follows:

ARTICLE 2. WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE PROCEDURE.

§6C-2-8. Labor organizations may not be compelled to disclose certain communications; exceptions.

    (a) (1) Except as otherwise provided in this section, a labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from a public employee, while the labor organization or agent was acting in a representative capacity concerning a public employee grievance or an investigation of a potential public employee grievance, regardless of whether the public employee is a member of the labor organization.

    (2) The confidentiality established under this section applies only to the extent that the communication or information is germane to a grievance or potential grievance of the public employee.

    (3) The confidentiality established under this subsection continues after termination of:

    (A) The public employee’s employment; or

    (B) The representative relationship of the labor organization or its agent with the public employee.

    (4) The confidentiality established under this subsection protects the communication or information received or acquired by the labor organization or its agent, but does not protect the employee from being compelled to disclose, to the extent provided by law, the facts underlying the communication or information.

    (b) The protection for confidential communications provided by this section only extends to proceedings under the public employees grievance procedure. Nothing in this section may be construed to extend the confidentiality to circuit court proceedings or other proceedings outside of the public employees grievance procedure.

    (c) A labor organization or its agent shall disclose to the employer as soon as possible a communication or information described in subdivision (1), subsection (a) of this section to the extent the labor organization or its agent reasonably believes:

    (1) It is necessary to prevent certain death or substantial bodily harm.

    (2) It is necessary to prevent the employee from committing a crime, fraud or any act that is reasonably certain to result in substantial injury to the financial interests or property of another or to rectify or mitigate any such action after it has occurred;

    (3) The communication or information constitutes an admission that the employee has committed a crime; or

    (4) It is necessary to comply with a court order or other law.

    (d) A labor organization or its agent may disclose a communication or information described in subdivision (1), subsection (a) of this section in order to:

    (1) Secure legal advice about the compliance of the labor organization or its agent with a court order or other law;

    (2) Establish a claim or defense on behalf of the labor organization or its agent in a controversy between the employee and the labor organization or its agent;

    (3) Establish a defense to a criminal charge or civil claim against the labor organization or its agent based on conduct in which the employee was involved; or

    (4) Respond to allegations in any proceeding concerning the performance of professional duties by the labor organization or its agent on behalf of the employee.

    (e) A labor organization or its agent may disclose a communication or information described in subdivision (1), subsection (a) of this section, without regard to whether the disclosure is made within the public employees grievance procedure, in the following circumstances:

    (1) The labor organization has obtained the express written or oral consent of the employee;

    (2) The employee has, by other act or conduct, waived the confidentiality of the communication or information; or

    (3) The employee is deceased or has been adjudicated incompetent by a court of competent jurisdiction and the labor organization has obtained the written or oral consent of the personal representative of the employee’s estate or of the employee’s guardian.

    (f) If there is a conflict between the application of this section and any federal or state labor law, the provisions of the federal or other state law shall control.

    The bill (Eng. Com. Sub. for H. B. No. 3156), as amended, was then ordered to third reading.

    Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

    Your Committee on Finance has had under consideration

    Eng. Com. Sub. for House Bill No. 4184, Relating to the West Virginia Tourism Development Act.

    And has amended same.

    Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2014;

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

                             Respectfully submitted,

                               Roman W. Prezioso, Jr.,

                                 Chair.

    At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4184) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.

    The following amendment to the bill, from the Committee on Finance, was reported by the Clerk:

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

    That §5B-2E-3, §5B-2E-4, §5B-2E-5, §5B-2E-7, §5B-2E-7a, §5B-2E-8 and §5B-2E-11 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 §5B-2E-7b, all to read as follows:

ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.

§5B-2E-3. Definitions.

    As used in this article, unless the context clearly indicates otherwise:

    (1) "Agreement" means a tourism development agreement entered into, pursuant to section six of this article, between the development office and an approved company with respect to a project.

    (2) "Approved company" means any eligible company approved by the development office pursuant to section five of this article seeking to undertake a project.

    (3) "Approved costs" means:

    (a) Included costs:

    (i) Obligations incurred for labor and to vendors, contractors, subcontractors, builders, suppliers, delivery persons and material persons in connection with the acquisition, construction, equipping or installation of a project;

    (ii) The costs of acquiring real property or rights in real property and any costs incidental thereto;

    (iii) The cost of contract bonds and of insurance of all kinds that may be required or necessary during the course of the acquisition, construction, equipping, or installation of a project which is not paid by the vendor, supplier, delivery person, contractor or otherwise provided;

    (iv) All costs of architectural and engineering services, including, but not limited to: Estimates, plans and specifications, preliminary investigations and supervision of construction, installation, as well as for the performance of all the duties required by or consequent to the acquisition, construction, equipping or installation of a project;

    (v) All costs required to be paid under the terms of any contract for the acquisition, construction, equipping or installation of a project;

    (vi) All costs required for the installation of utilities, including, but not limited to: Water, sewer, sewer treatment, gas, electricity, communications and off-site construction of utility extensions to the boundaries of the real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons; and

    (vii) All other costs comparable with those described in this subdivision;

    (b) Excluded costs. -- The term "approved costs" does not include any portion of the cost required to be paid for the acquisition, construction, equipping or installation of a project that is financed with governmental incentives, grants or bonds or for which the eligible taxpayer elects to qualify for other tax credits, including, but not limited to, those provided by article thirteen-q, chapter eleven of this code. The exclusion of certain costs of a project under this paragraph (b) does not automatically disqualify the remainder of the costs of the project.

    (4) "Base tax revenue amount" means the average monthly amount of consumer sales and service tax collected by an approved company, based on the twelve-month period ending immediately prior to the opening of a new tourism development project for business or a tourism development expansion project, as certified by the State Tax Commissioner.

    (5) "Development office" means the West Virginia Development Office as provided in article two of this chapter.

    (6) "Crafts and products center" means a facility primarily devoted to the display, promotion and sale of West Virginia products and at which a minimum of eighty percent of the sales occurring at the facility are of West Virginia arts, crafts or agricultural products.

    (7) "Eligible company" means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture or any other entity operating or intending to operate a project, whether owned or leased, within the state that meets the standards required by the development office. An eligible company may operate or intend to operate directly or indirectly through a lessee.

    (8) "Ineligible company" means any West Virginia pari-mutuel racing facility licensed to operate multiple video lottery machines as authorized by article twenty-two-a, chapter twenty-nine of this code or any limited lottery retailer holding a valid license issued under article seven, chapter sixty of this code.

    (9) "Entertainment destination center" means a facility containing a minimum of two hundred thousand square feet of building space adjacent or complementary to an existing tourism attraction, an approved project, or a major convention facility and which provides a variety of entertainment and leisure options that contain at least one major theme restaurant and at least three additional entertainment venues, including, but not limited to, live entertainment, multiplex theaters, large-format theaters, motion simulators, family entertainment centers, concert halls, virtual reality or other interactive games, museums, exhibitions or other cultural and leisure time activities. Entertainment and food and drink options shall occupy a minimum of sixty percent of total gross area, as defined in the application, available for lease and other retail stores shall occupy no more than forty percent of the total gross area available for lease.

    (10) "Final approval" means the action taken by the executive director of the development office qualifying the eligible company to receive the tax credits provided in this article.

    (11) "Preliminary approval" means the action taken by the executive director of the development office conditioning final approval.

    (12) "Project" means a tourism development project and/or a tourism development expansion project administered in accordance with the provisions of this article.

    (12) “Qualified professional services destination facility” means a facility with a minimum qualified investment, as defined in this article, of not less than $80 million physically located in this state and adjacent or complementary to a historic resort hotel, which primarily furnishes and provides personal or professional services, or both types of services, to individuals who primarily are residents of another state or foreign county.

    (13) "State agency" means any state administrative body, agency, department, division, board, commission or institution exercising any function of the state that is not a municipal corporation or political subdivision.

    (14) “Tourism attraction” means a cultural or historical site, a recreation or entertainment facility, an area of natural phenomenon or scenic beauty, a West Virginia crafts and products center, or an entertainment destination center or a qualified professional services destination facility. A project or tourism attraction does not include any of the following:

    (A) Lodging facility, unless:

    (i) The facility constitutes a portion of a project and represents less than fifty percent of the total approved cost of the project, or the facility is to be located on recreational property owned or leased by the state or federal government and the facility has received prior approval from the appropriate state or federal agency;

    (ii) The facility involves the restoration or rehabilitation of a structure that is listed individually in the national register of historic places or is located in a national register historic district and certified by the state historic preservation officer as contributing to the historic significance of the district and the rehabilitation or restoration project has been approved in advance by the state historic preservation officer; or

    (iii) The facility involves the construction, reconstruction, restoration, rehabilitation or upgrade of a full-service lodging facility or the reconstruction, restoration, rehabilitation or upgrade of an existing structure into a full-service lodging facility having not less than five hundred guest rooms, with construction, reconstruction, restoration, rehabilitation or upgrade costs exceeding ten million dollars;

    (B) A facility that is primarily devoted to the retail sale of goods, other than an entertainment destination center, a West Virginia crafts and products center or a project where the sale of goods is a secondary and subordinate component of the project; and

    (C) A recreational facility that does not serve as a likely destination where individuals who are not residents of the state would remain overnight in commercial lodging at or near the project or existing attraction.

    (15) "Tourism development project" means the acquisition, including the acquisition of real estate by a leasehold interest with a minimum term of ten years, construction and equipping of a tourism attraction; the construction and installation of improvements to facilities necessary or desirable for the acquisition, construction, installation of a tourism attraction, including, but not limited to, surveys, installation of utilities, which may include water, sewer, sewage treatment, gas, electricity, communications and similar facilities; and off-site construction of utility extensions to the boundaries of the real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons, but does not include a project that will be substantially owned, managed or controlled by an eligible company with an existing project located within a ten mile radius, or by a person or persons related by a family relationship, including spouses, parents, children or siblings, to an owner of an eligible company with an existing project located within a ten mile radius.

    (16) "Tourism development expansion project" means the acquisition, including the acquisition of real estate by a leasehold interest with a minimum term of ten years; the construction and installation of improvements to facilities necessary or desirable for the expansion of an existing tourism attraction including, but not limited to, surveys, installation of utilities, which may include water, sewer, sewage treatment, gas, electricity, communications and similar facilities; and off-site construction of utility extension to the boundaries of real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons.

    (17) "Tourism development project tax credit" means the tourism development project tax credit allowed by section seven of this article.

    (18) "Tourism development expansion project tax credit" means the tourism development expansion project tax credit allowed by section seven-a of this article.

§5B-2E-4. Additional powers and duties of the development office.

    The development office has the following powers and duties, in addition to those set forth in this case, necessary to carry out the purposes of this article including, but not limited to:

    (1) Make preliminary and final approvals of all applications for projects and enter into agreements pertaining to projects with approved companies;

    (2) Employ fiscal consultants, attorneys, appraisers and other agents as the executive director of the development office finds necessary or convenient for the preparation and administration of agreements and documents necessary or incidental to any project; and

    (3) Impose and collect fees and charges in connection with any transaction.

    (4) Impose and collect from the applicant a non-refundable application fee in the amount of $10,000 to be paid to the Development Office when the application is filed.

§5B-2E-5. Project application; evaluation standards; consulting services; preliminary and final approval of projects.

    (a) Each eligible company that seeks to qualify a project for the tourism development project tax credit provided by section seven of this article, or for the tourism development expansion project tax credit provided by section seven-a of this article, as applicable, must file a written application for approval of the project with the Development Office.

    (b) With respect to each eligible company making an application to the Development Office for a tourism development project tax credit or a tourism development expansion project tax credit, the Development Office shall make inquiries and request documentation, including a completed application, from the applicant that shall include: A description and location of the project; capital and other anticipated expenditures for the project and the sources of funding therefor; the anticipated employment and wages to be paid at the project; business plans that indicate the average number of days in a year in which the project will be in operation and open to the public; and the anticipated revenues and expenses generated by the project. The executive director of the Development Office shall act to grant or not to grant any preliminary approval of an application within forty-five days following its receipt or receipt of additional information requested by the Development Office, whichever is later.

    (c) Based upon a review of the application and additional documentation provided by the eligible company, if the executive director of the Development Office determines that the applicant and the project may reasonably satisfy the criteria for final approval set forth in subsection (d) of this section, then the executive director of the Development Office may grant a preliminary approval of the applicant and the project.

    (d) After preliminary approval by the executive director of the Development Office, the Development Office shall engage the services of a competent consulting firm or firms to analyze the data made available by the applicant and to collect and analyze additional information necessary to determine that, in the independent judgment of the consultant, the project:

    (1) Likely will attract at least twenty-five percent of its visitors from outside of this state;

    (2) Will have approved costs in excess of one million dollars;

    (3) Will have a significant and positive economic impact on the state considering, among other factors, the extent to which the project will compete directly with or complement existing tourism attractions in the state and the amount by which increased tax revenues from the project will exceed the credit given to the approved company;

    (4) Will produce sufficient revenues and public demand to be operating and open to the public for a minimum of one hundred days per year; and

    (5) Will provide additional employment opportunities in the state.

    (e) The applicant shall pay to the Development Office, prior to the engagement of the services of a competent consulting firm or firms pursuant to the provisions of subsection (d) of this section, for the cost of the consulting report or reports and shall cooperate with the consulting firm or firms to provide all of the data that the consultant considers necessary or convenient to make its determination under subsection (d) of this section.

    (f) The executive director of the Development Office, within sixty days following receipt of the consultant's final, written report or reports, shall review, in light of the consultant's report or reports, the reasonableness of the project's budget and timetable for completion and, in addition to the criteria for final approval set forth in subsection (d) of this section, the following criteria:

    (c) On and after the effective date of this section as amended in 2014, the executive director of the Development Office, within sixty days following receipt of an application or receipt of any additional information requested by the Development Office respecting the application, whichever is later, shall act to grant or not to grant approval of the application, based on the following criteria:

    (1) The project will attract at least twenty-five percent of its visitors from outside of this state;

    (2) The project will have approved costs in excess of $1,000,000;

    (3) The project will have a significant and positive economic impact on the state considering, among other factors, the extent to which the project will compete directly with or complement existing tourism attractions in the state and the amount by which increased tax revenues from the project will exceed the credit given to the approved company;

    (4) The project will produce sufficient revenues and public demand to be operating and open to the public for a minimum of one hundred days per year;

    (5) The project will provide additional employment opportunities in the state;

    (1) (6) The quality of the proposed project and how it addresses economic problems in the area in which the project will be located;

    (2) (7) Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion;

    (3) (8) Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses;

    (4) (9) Whether the project will, directly or indirectly, assist in the creation of additional employment opportunities in the area where the project will be located;

    (5) (10) Whether the project helps to diversify the local economy;

    (6) (11) Whether the project is consistent with the goals of this article;

    (7) (12) Whether the project is economically and fiscally sound using recognized business standards of finance and accounting; and

    (8) (13) The ability of the eligible company to carry out the project.

    (g) (d) The Development Office may establish other criteria for consideration when approving the applications.

    (h) (e) The executive director of the Development Office may give its final approval to the applicant's application for a project and may grant to the applicant the status of an approved company. The executive director of the Development Office shall act to approve or not approve any application within sixty days following the receipt of the consultant's final, written report or reports or the receipt of any additional information requested by the Development Office, whichever is later. The decision by the executive director of the Development Office is final.

    (f)This section as amended and reenacted in 2014 shall apply to applications under review by the director of the development office prior to the effective date of this section as well as to applications filed on and after the effective date of this section as amended and reenacted in 2014.

§5B-2E-7. Amount of credit allowed for tourism development project; approved projects.

    (a) Approved companies are allowed a credit against the West Virginia consumers sales and service tax imposed by article fifteen, chapter eleven of this code and collected by the approved company on sales generated by or arising from the operations of the tourism development project: Provided, That if the consumers sales and service tax collected by the approved company is not solely attributable to sales resulting from the operation of the new tourism development project, the credit shall only be applied against that portion of the consumers sales and service tax collected in excess of the base tax revenue amount. The amount of this credit is determined and applied as provided in this article.

    (b) The maximum amount of credit allowable in this article is equal to twenty-five percent of the approved company's approved costs as provided in the agreement: Provided, That, if the tourism development project site is located within the permit area or an adjacent area of a surface mining operation, as these terms are defined in section three, article three, chapter twenty-two of this code, from which all coal has been or will be extracted prior to the commencement of the tourism development project, or the tourism development project site is located on or adjacent to recreational property owned or leased by the state or federal government and when the project is located on property owned or leased by the state or federal government, the project has received prior approval from the appropriate state or federal agency, the maximum amount of credit allowable is equal to thirty-five percent of the approved company's approved costs as provided in the agreement.

    (c) The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the project is opened to the public, unless the approved company elects to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the first consumers sales and service tax return filed by the approved company following the date the project is opened to the public. Once made, the election cannot be revoked.

    (d) The amount determined under subsection (b) of this section is allowed as a credit against the consumers sales and service tax collected by the approved company on sales from the operation of the tourism development project. The amount determined under said subsection may be used as a credit against taxes required to be remitted on the approved company's monthly consumers sales and service tax returns that are filed pursuant to section sixteen, article fifteen, chapter eleven of this code. The approved company shall claim the credit by reducing the amount of consumers sales and service tax required to be remitted with its monthly consumers sales and service tax returns by the amount of its aggregate annual credit allowance until such time as the full current year annual credit allowance has been claimed. Once the total credit claimed for the tax year equals the approved company's aggregate annual credit allowance no further reductions to its monthly consumers sales and service tax returns will be permitted.

    (e) If any credit remains after application of subsection (d) of this section, the amount of credit is carried forward to each ensuing tax year until used or until the expiration of the third taxable year subsequent to the end of the initial ten-year credit application period. If any unused credit remains after the thirteenth year, that amount is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

§5B-2E-7a. Amount of credit allowed for tourism development expansion project; approved projects.

    (a) Approved companies are allowed a credit against the West Virginia consumers sales and service tax imposed by article fifteen, chapter eleven of this code and collected by the approved company on sales generated by or arising from the operations of the tourism development expansion project: Provided, That the tourism development expansion project tax credit allowed under this section is separate and distinct from any credit allowed for a tourism development project in accordance with the provisions of section seven of this article: Provided, however, That if the consumers sales and service tax collected by the approved company is not solely attributable to sales resulting from the operation of the tourism development expansion project, the credit shall only be applied against that portion of the consumers sales and service tax collected in excess of the base tax revenue amount. The amount of this credit is determined and applied as provided in this article.

    (b) The maximum amount of credit allowable in this article is equal to twenty-five percent of the approved company's approved costs as provided in the agreement: Provided, That, if the tourism development expansion project site is located within the permit area or an adjacent area of a surface mining operation, as these terms are defined in section three, article three, chapter twenty-two of this code, from which all coal has been or will be extracted prior to the commencement of the tourism development project, or the tourism development project site is located on or adjacent to recreational property owned or leased by the state or federal government and when the project is located on property owned or leased by the state or federal government, the project has received prior approval from the appropriate state or federal agency, the maximum amount of credit allowable is equal to thirty-five percent of the approved company's approved costs as provided in the agreement.

    (c) The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the project is opened to the public, unless the approved company elects to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the first consumers sales and service tax return filed by the approved company following the date the project is opened to the public. Once made, the election cannot be revoked.

    (d) The amount determined under subsection (b) of this section is allowed as a credit against the consumers sales and service tax collected by the approved company on sales from the operation of the tourism development expansion project. The amount determined under said subsection may be used as a credit against taxes required to be remitted on the approved company's monthly consumers sales and service tax returns that are filed pursuant to section sixteen, article fifteen, chapter eleven of this code. The approved company shall claim the credit by reducing the amount of consumers sales and service tax required to be remitted with its monthly consumers sales and service tax returns by the amount of its aggregate annual credit allowance until such time as the full current year annual credit allowance has been claimed. Once the total credit claimed for the tax year equals the approved company's aggregate annual credit allowance no further reductions to its monthly consumers sales and service tax returns will be permitted.

    (e) If any credit remains after application of subsection (d) of this section, the amount of credit is carried forward to each ensuing tax year until used or until the expiration of the third taxable year subsequent to the end of the initial ten-year credit application period. If any unused credit remains after the thirteenth year, that amount is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

    (f) The total amount of tourism development expansion project tax credits for all approved companies pursuant to this section may not exceed one million five hundred thousand dollars each calendar year. 

§5B-2E-7b. Credit against taxes.

    (a) General. – When a qualified professional services destination facility is located at or adjacent to an existing historic resort hotel with at least five hundred rooms and the qualified professional services destination facility eligible for credit under this section is primarily engaged in furnishing services that are not subject to the tax imposed by article fifteen, chapter eleven of this code, then in lieu of the credits that otherwise would be allowable under section seven or seven-a of this article, the eligible company that complies with the requirements of this section may claim the credit provided in this section: Provided, That the maximum amount of credit allowable under this section is equal to twenty-five percent of the eligible company’s qualified investment, as defined in this section.

    (b) Definitions. – The following words and phrases when used in this section have the meanings given to them in this subsection unless the context in which used clearly indicates that a different meaning was intended by the Legislature.

    (1) "Agreement" means an agreement entered into under subsection (g) of this section.

    (2) "Compensation" means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

    (3) "Cost-of-living adjustment" for any calendar year is the percentage, if any, by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2015.

    (4) "Consumer price index" for any calendar year means the average of the federal consumer price index as of the close of the twelve-month period ending on August 31 of that calendar year.

    (5) "Eligible company" for purposes of this section means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture or any other entity operating a qualified professional services destination facility, whether owned or leased, within the state that: (A) creates at least one hundred twenty-five new jobs in this state within thirty-six months after the date the qualified investment is placed into service or use, and maintains those jobs for the entire ten year life of the tax credit specified in this section, (B) makes available to its full-time employees health insurance coverage and pays at least fifty percent of the premium for the health insurance, (C) generates, within thirty-six months after the date the qualified investment is placed into service or use, not less than $10 million of gross receipts upon which the taxes imposed under article twenty-seven, chapter eleven of this code are paid, and (D) meets the standards, limitations and requirements of this section and of the development office. An eligible company may operate or intend to operate directly or indirectly through a lessee or a contract operator.

    (6) "Federal consumer price index" means the most recent consumer price index as of August 31 each year for all urban consumers published by the United States Department of Labor.

    (7) "Health insurance benefits" means employer-provided coverage for medical expenses of the employee or the employee and his or her family under a group accident or health plan, or employer contributions to an Archer medical savings account, as defined in Section 220 of the Internal Revenue Code of 1986, as amended, or to a health savings account, as defined in Section 223 of the Internal Revenue Code, of the employee when the employer's contribution to any such account is not less than fifty percent of the maximum amount permitted for the year as employer-provided coverage under Section 220 or 223 of the Internal Revenue Code, whichever section is applicable.

    (8) "Historic resort hotel" means a resort hotel registered with the United States Department of the Interior on the effective date of this amendment as a national historic landmark in its National Registry of Historic Places having not fewer than five hundred guest rooms.

    (9) "New employee" means a person residing and domiciled in this state hired by the taxpayer to fill a position or a job in this state which previously did not exist in the taxpayer's business enterprise in this state prior to the date the application was filed under subsection (c) of this section. In no event may the number of new employees exceed the total net increase in the employer's employment in this state: Provided, That the Tax Commissioner may require that the net increase in the taxpayer's employment in this state be determined and certified for the taxpayer's controlled group as defined in article twenty-four of this chapter. In addition, a person is a "new employee" only if the person's duties are on a regular, full-time and permanent basis:

    (A) "Full-time employment" means employment for at least eighty hours per month at a wage not less than the amount specified in subdivision (1), subsection (d) of this section; and

    (B) "Permanent employment" does not include employment that is temporary or seasonal and therefore the wages, salaries and other compensation paid to the temporary or seasonal employees will not be considered for purposes of this section even if the compensation paid to the temporary or seasonal employee equals or exceeds the amount specified in paragraph (A) of this subdivision.

    (10) "New job" means a job which did not exist in the business of the taxpayer in this state prior to filing the application for benefits under this section, and which is filled by a new employee.

    (11) "Professional services" means only those services provided directly by: a physician licensed to practice in this State, a surgeon licensed to practice in this State, a dentist licensed to practice in this State, a podiatrist licensed to practice in this State, an osteopathic physician licensed to practice in this State, a psychologist licensed to practice in this State, an optometrist licensed to practice in this State, a registered nurse licensed to practice in this State, a physician assistant licensed to practice in this State, a licensed practical nurse licensed to practice in this State, a dental hygienist licensed to practice in this State, a social worker licensed to practice in this State, or any other health care professional licensed to practice in this State;

    (12) “Qualified investment” means one-hundred percent of the cost of property purchased or leased for the construction and equipping of a qualified professional services destination facility which is placed in service or use in this State by an eligible company.

    (A) The cost of property purchased for a qualified professional services destination facility is determined under the following rules:

    (i) Cost does not include the value of property given in trade or exchange for the property purchased for business expansion.

    (ii) If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property does not include any insurance proceeds received in compensation for the loss.

    (iii) The cost of real property acquired by written lease for a primary term of ten years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed ten years.

    (iv) The cost of tangible personal property acquired by written lease for a primary term of not less than four years.

    (v) In the case of self-constructed property, the cost thereof is the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

    (vi) The cost of property used by the taxpayer out-of-state and then brought into this State, is determined based on the remaining useful life of the property at the time it is placed in service or use in this State, and the cost is the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof the taxpayer used the property outside this State. In the case of leased tangible personal property, cost is based on the period remaining in the primary term of the lease after the property is brought into this State for use in a new or expanded business facility of the taxpayer, and is the rent reserved for the remaining period of the primary term of the lease, not to exceed ten years, or the remaining useful life of the property, determined as aforesaid, whichever is less.

    (c) Credit against taxes. – The credit allowed by this section shall be equal to twenty-five percent of the eligible company's qualified investment in the qualified professional services destination facility and shall be taken and applied as provided in this subsection (c). Notwithstanding any other provision of this article to the contrary, no taxpayer or group of taxpayers may gain entitlement to more than $37.5 million total aggregate tax credit under this section and no taxpayer, or group of taxpayers, in the aggregate may apply more than $2.5 million of annual credit in any tax year under this section, either in the form of a refund or directly against a tax liability or in any combination thereof. This limitation applies to initial tax credit attributable to qualified investment in a qualified professional services destination facility, and to qualified investment in a follow-up project expansion, so that credit attributable additively and in the aggregate to both may not be applied to exceed $2.5 million annual credit in any tax year.

    (1) Application of credit. – The amount of credit allowable under this subsection shall be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the eligible company places the qualified professional services destination facility, or part thereof, in service or use in this state, unless the eligible company elected to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the annual income tax return filed under chapter eleven of this code for the taxable year in which the qualified professional services destination facility is first placed into service or use by the taxpayer. Once made, the election may not be revoked. The annual credit allowance is taken in the manner prescribed in subdivision (3) of this subsection (c): Provided, That if any credit remains after the initial ten year credit application period, the amount of remaining credit is carried forward to each ensuing tax year until used or until the expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period. If any unused credit remains after expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period, the amount thereof is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

      (2) Placed in service or use. – For purposes of the credit allowed by this subsection (c), qualified investment or qualified investment property is considered placed in service or use in the earlier of the following taxable years:

    (A) The taxable year in which, under the eligible company’s depreciation practice, the period for depreciation with respect to the property begins; or

    (B) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.

    (3) Application of annual credit allowance.

    (A) In general.- The aggregate annual credit allowance for the current taxable year is an amount equal to the one-tenth part allowed under subdivision (1) of this subsection for qualified investment placed into service or use.

    (B) Application of current year annual credit allowance. – The amount determined under this subsection (c) is allowed as a credit against one hundred percent of the eligible company’s state tax liabilities applied as provided in paragraphs (C) and (D) of this subdivision (3), and in that order:

    (C) Corporation net income taxes. - The amount of allowable tax credit for the year determined under paragraph (A) of this subdivision (3) shall first be applied to reduce the taxes imposed by article twenty-four, chapter eleven of this code, for the taxable year determined before application of allowable credits against tax.

    (D) Personal income taxes. –

    (i) If the eligible company is an electing small business corporation, as defined in section 1361 of the United States Internal Revenue Code of 1986, as amended, a partnership, a limited liability company that is treated as a partnership for federal income tax purposes or a sole proprietorship, then any unused credit after application of paragraph (C) of this subdivision (3) is allowed as a credit against the taxes imposed by article twenty-one, chapter eleven of this code on the members, owners, partners or interest holders in the eligible company.

    (ii) Electing small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among their members in the same manner as profits and losses are allocated for the taxable year.

    (E) No credit is allowed under this subdivision (3) against any employer withholding taxes imposed by article twenty-one, chapter eleven of this code.

    (F) The tax credits allowed under articles thirteen-j, thirteen-q, thirteen-s, thirteen-r, thirteen-w, and thirteen-aa of this code may not be applied to offset any tax against which the tax credit allowed under this article is allowed or authorized. No person, entity, company, or eligible company authorized or entitled to any tax credit allowed under this section or any member of the unitary group or any member of the controlled group of which the taxpayer is a member, may gain entitlement to any other economic development tax credit or economic development tax incentive which relates to the investment or activity upon which the credit authorized under this section is based.

    (G) (i) In order to effectuate the purposes of this subdivision (3), the Tax Commissioner may propose for promulgation rules, including emergency rules, in accordance with article three, chapter twenty-nine-a of this code.

    (ii) The Tax Commissioner may apply any amount of the tax credit otherwise available to a Taxpayer under this article, to pay any delinquent West Virginia state tax liability of the taxpayer, and interest and penalties as applicable.

    (iii) Any amount of the tax credit otherwise available to a taxpayer under this article may be applied by the applicable administering agency to pay any outstanding obligation to a Workers' Compensation Fund, as defined in article two-c of chapter twenty-three of this code, or any outstanding obligation under the West Virginia Unemployment Compensation Act.

    (iv) Any amount of the tax credit otherwise available to a taxpayer under this article, may be applied by the applicable administering agency to pay any delinquent or unpaid assessment, fee, fine, civil penalty or monetary imposition imposed by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations.

    (H) Unused credit, refundable credit. – If any annual credit remains after application of preceding paragraphs of this subdivision (3), the amount thereof shall be refunded annually to the eligible company, and distributed in accordance with the credit distribution specified in this subdivision (3): Provided, That the amount thereof may not exceed the limitation on annual tax credit or the limitation on total aggregate tax credit specified in this section.

    (I) Forfeiture of credit. - If any credit remains after expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period, such credit is forfeited, and may not be used to offset any West Virginia tax liability.

    (d) Compensation of employees filling new jobs.

    (1) The new jobs and new employee criteria which count toward qualification of a taxpayer as an eligible company for purposes of the tax credit allowed by this section shall be subject to the following limitations and requirements. A job counts toward qualification of a taxpayer as an eligible company if the job is a new job, as defined in this section, held by a new employee, as defined in this section, and the new job:

    (A) Pays a median wage of at least $37,000 annually. Beginning January 1, 2015, and on January 1 of each year thereafter, the Tax Commissioner shall prescribe an amount that shall apply in lieu of the $37,000 amount for new jobs filled during that calendar year. This amount is prescribed by increasing the $37,000 figure by the cost-of-living adjustment for that calendar year. If any increase under this subdivision is not a multiple of $50, the increase shall be rounded to the next lowest multiple of $50;

    (B) Provides health insurance. The employer may, in addition, offer benefits including child care, retirement and other benefits; and

    (C) Is a full-time, permanent position, as those terms are defined in this section.

    (D) Jobs that pay less than the statewide average nonfarm payroll wage, as determined annually by the West Virginia Bureau of Employment Programs, or that pay that salary, but do not also provide health benefits in addition to the salary, do not count toward qualification of a taxpayer as an eligible company under this section. Jobs that are less than full-time, permanent positions do not count toward qualification of a taxpayer as an eligible company under this section.

    (E) The employer having obtained qualification as an eligible company under this section for the year in which the new job is filled is not required to raise wages of the employees currently employed in the new jobs upon which the initial qualification as an eligible company under this section was based by reason of the cost-of-living adjustment for new jobs filled in subsequent years provided the employer continues to provide healthcare.

    (e) Application and review.

    (1) Application. - An eligible company that meets the requirements of this section may apply to the Development Office for entitlement to the tax credit authorized under this section. The application shall be on a form prescribed by the Development Office and shall include all of the following:

    (A) The name and address of the applicant;

    (B) Documentation that the applicant is a eligible company;

    (C) Documentation that the applicant meets the requirements of this section;

    (D) Documentation that the applicant does not owe any delinquent taxes or any other amounts to the federal government, this state or any political subdivision of this state;

    (E) An affidavit that the applicant has not filed for or publicly announced its intention to file for bankruptcy protection and that the company will not seek bankruptcy protection within the next six calendar months following the date of the application;

    (F) A waiver of confidentiality under section five-d, article ten, chapter eleven of this code for information provided in the application; and

    (G) Any other information required by the Development Office.

    (f) Credit allowable.

    (1) Certified multiple year projects.

    (A) In general. - A multiple year qualified professional services destination facility project certified by the West Virginia Development Office is eligible for the credit allowable by this article. A project eligible for certification under this section is one where the qualified investment under this article creates at least the required minimum number of new jobs but the qualified investment is placed in service or use over a period of up to three successive tax years: Provided, That the qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the West Virginia Development Office, and the qualified investment placed in service or use during the first tax year would not have been made without the expectation of making the qualified investment placed in service or use during the next two succeeding tax years.

    (B) Application for certification. - The application for certification of a project under this section shall be filed with and approved by the West Virginia Development Office prior to any credit being claimed or allowed for the project's qualified investment and new jobs created as a direct result of the qualified investment. This application shall be approved in writing and contain the information as the West Virginia Development Office may require to determine whether the project should be certified as eligible for credit under this article.

    (C) Review. - Within thirty days of receipt of a complete application, the Development Office, in conjunction with the Tax Division of the Department of Revenue, shall review the application and determine if the applicant is an eligible company and that the requirements of this section have been met. Applications not approved within the thirty days specified in this subdivision are hereby deemed denied.

    (D) Approval. - The Development Office may approve or deny the application. Upon approval of an application, the Development Office shall notify the applicant in writing and enter into an agreement with the eligible company for benefits under this section.

    (2) Certified follow-up project expansions.

    (A) An eligible company that intends to undertake a follow-up project expansion, may apply to the West Virginia Development Office for certification of a single, one-time, follow-up project expansion, and entitlement to an additional tax credit under this section in an amount which is the lesser of twenty-five percent of qualified investment in the follow-up project expansion or $12.5 million. No taxpayer, or group of taxpayers, in the aggregate may apply more than $2.5 million of annual credit in any tax year under this section, either in the form of a refund or directly against a tax liability or in any combination thereof. This limitation applies to initial tax credit attributable to qualified investment in a qualified professional services destination facility, and to qualified investment in a follow-up project expansion, so that credit attributable additively and in the aggregate to both may not be applied to exceed $2.5 million annual credit in any tax year.

    (B) The requirements, limitations and qualifications applicable to qualified professional services destination facility projects under this section apply to follow-up project expansions, except for those requirements, limitations and qualifications expressly specified in this subdivision (2).

    (C) Requirements for certification of a follow-up project expansion are as follows:

    (i) The eligible company, pursuant to certification and authorization for entitlement to tax credit under subsection (1) of this section (f), has placed qualified investment of not less than $80 million into service in a qualified professional services destination facility within an initial period of not more than three tax years;

    (ii) The eligible company intends to place additional qualified investment in service or use in the previously certified qualified professional services destination facility project, or an expansion or extension thereof. In no case shall a follow-up project expansion be certified if the follow-up project expansion property is not contiguous to, or within not more than one mile of, the initial qualified professional services destination facility;

    (iii) The eligible company proposes to place the qualified investment in the follow-up project expansion in service or use in the fourth tax year subsequent to the tax year in which qualified investment was first placed into service or use in the initial qualified professional services destination facility project, or under a multiple year project certification, in the fourth, fifth and sixth tax year subsequent to the tax year in which qualified investment was first placed into service or use in the initial qualified professional services destination facility project;

    (iv) The follow-up project expansion must create and maintain at least twenty-five net new jobs held by new employees, in addition to the new jobs created by the initial qualified professional services destination facility project. The loss of any West Virginia job at the eligible company will be subtracted from the count of new jobs attributable to the follow-up project expansion;

    (v) The West Virginia Development Office shall not issue more than one certification for any follow-up project expansion; and

    (vi) The West Virginia Development Office shall not issue certification of a follow-up project expansion unless the applicant provides convincing evidence to show that the follow-up project expansion will result in jobs creation specified in this subdivision, that such jobs will remain and be maintained in West Virginia for at least ten years subsequent to the placement of qualified investment into service or use in the follow-up project expansion, that the follow-up project expansion will not operate to the detriment of other West Virginia businesses or to the detriment of the economy, public welfare or moral character of West Virginia or its people.

    (g) Agreement.

    (1) The agreement between the eligible company and the Development Office shall be entered into before any benefits may be provided under this section.

    (2) The agreement shall do all of the following:

    (A) Specify the terms and conditions the eligible company must comply with in order to receive benefits under this section, other than those terms, limitations and conditions specified and mandated by statute or regulation; and

    (B) Require the Development Office to certify all of the following to the Tax Division of the Department of Revenue each taxable year an agreement under this section is in effect:

    (i) That the eligible company is eligible to receive benefits under this section;

    (ii) The number of new jobs created by the company during each taxable year;

    (iii) The amount of gross wages, as determined for purposes of Form W2, as filed with the Internal Revenue Service, being paid to each individual employed in a new job;

    (iv) The amount of an eligible company’s qualified investment;

    (v) The maximum amount of credit allowable to the eligible company under this section; and

    (vi) Any other information deemed necessary by the Development Office.

    (h) Filing and contents.

    (1) Filing. – On or before the due date of the income tax return for each tax year in which the agreement is in effect, an eligible company shall file with the Tax Division of the Department of Revenue a form prescribed by the Tax Commissioner.

    (2) Contents. - The form specified under subdivision (1) of this subsection (h) shall request the following information:

    (A) The name and Employer Identification Number of the eligible company;

    (B) The effective date of the agreement;

    (C) The reporting period end date;

    (D) Information relating to each individual employed in a new job as required by the Tax Commissioner;

    (E) Aggregate gross receipts for the tax period and gross receipts on which tax has been paid under article twenty-seven, chapter eleven of this code for the tax period; and

    (F) Any other information required by the Tax Commissioner.

    (3) Taking of credit. - The taxpayer, participant or participants claiming the credit for qualified investments in a certified project shall annually file with their income tax returns filed under chapter eleven of this code:

    (A) Certification that the taxpayer’s or participant's qualified investment property continues to be used in the project and if disposed of during the tax year, was not disposed of prior to expiration of its useful life;

    (B) Certification that the new jobs created by the project's qualified investment continue to exist and are filled by persons who are residents of this State; and

    (C) Any other information the tax commissioner requires to determine continuing eligibility to claim the annual credit allowance for the project's qualified investment.

    (4) Confidentiality.- The contents of the completed form shall be subject to the confidentiality rules set forth in section five-d, article ten, chapter eleven of this code: Provided, That notwithstanding the provisions of section five-d, article ten, chapter eleven of this code, or any other provision of this code, tax returns, tax return information and such other information as may be necessary to administer the tax credits and programs authorized and specified by this article and in this section may be exchanged between the Tax Commissioner and the West Virginia Development Office without restriction.

§5B-2E-8. Forfeiture of unused tax credits; credit recapture; recapture tax imposed; information required to be submitted annually to development office; transfer of tax credits to successors.

    (a) The approved company or eligible company shall forfeit the tourism development project tax credit allowed by section seven of this article, or the tourism development expansion tax credit allowed by section seven-a of this article, or the tax credit allowed by section seven-b of this article, as applicable, with respect to any calendar year and shall pay the recapture tax imposed by subsection (b) of this section, if:

    (1) In any year following the first calendar year the project is open to the public, the project fails to attract at least twenty-five percent of its visitors from among persons who are not residents of the state;

    (2) In any year following the first year the project is open to the public, the project is not operating and open to the public for at least one hundred days; or

    (3) The approved company or eligible company, as of the beginning of each calendar year, has an outstanding obligation to a Workers’ Compensation Fund, as defined in article two-c of chapter twenty-three of this code, an outstanding obligation under the West Virginia Unemployment Compensation Act, or an outstanding obligation under the West Virginia state tax and revenue laws; or

    (4) Any company, approved company or eligible company, to which entitlement to the tax credit authorized under section seven-b of this article has been previously established, fails to meet the requirements specified in section seven-b for an eligible company and for a qualified professional services destination facility, including, but not limited to, jobs maintenance, employee wage and employee health benefits, aggregate gross receipts, and gross receipts subject to the tax imposed under article twenty-seven, chapter eleven of this code.

    (5) Any company, approved company or eligible company, to which entitlement to the tax credit authorized under section seven-b of this article has been previously established:

    (A) Is delinquent in payment of any assessment, fee, fine, civil penalty or monetary imposition imposed by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations,

    (B) Is delinquent in compliance with any order, injunction, compliance agreement, agreed order, court order, mandamus or other enforcement or compliance instrumentality of the West Virginia Division of Environmental Protection or United States Environmental Protection Agency or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations.

    (C) Is out of compliance or not compliant with any citation or order issued by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations, requiring that a condition be abated or corrected.

    (b) In addition to the loss of credit allowed under this article for the calendar year, a credit recapture tax is hereby imposed on any approved company or successor eligible company that forfeits the tourism development project tax credit or the tourism development expansion project credit or the credit authorized under section seven-b of this article, under the provisions of subsection (a) of this section. The credit recapture tax shall apply and the approved company, and successor eligible companies, shall return to the state and any other person or entity that has received the tax credit allowed under this article shall be liable for an amount of recapture tax equal to all previously claimed tourism development project tax credit or tourism development expansion project credit, or the tax credits authorized under section seven-b of this article, and allowed by this article. An amended return shall be filed with the State Tax Commissioner, as applicable, plus interest and penalties applicable in accordance with the Tax Procedure and Administration Act. The recapture tax shall be calculated and paid pursuant to the filing, with the tax commissioner of an amended return, and such other forms, schedules and documents as the Tax Commissioner may require, for the prior calendar year, or calendar years, for which credit recapture is required, along with interest, as provided in section seventeen, article ten, chapter eleven of this code: Provided, That the approved company and successor eligible companies, eligible company, person or entity who previously claimed the tourism development project tax credit, or the tourism development expansion project credit, or the tax credits allowed by section seven-b of this article, as applicable, under this article and successor eligible companies, persons or entities are jointly and severally liable for payment of any recapture tax subsequently imposed under this section. For purposes of this recapture tax, the statute of limitations otherwise applicable under the Tax Procedure and Administration Act shall not begin to run until the eighteenth year subsequent to the earlier of: the year when qualified investment is first placed into service or use, or the year when the application for the tax credit authorized under this article was filed with the West Virginia Development Office.

    (c) Within forty-five days after the end of each calendar year during the term of the agreement, the approved company shall supply the development office with all reports and certifications the development office requires demonstrating to the satisfaction of the development office that the approved company is in compliance with applicable provisions of law. Based upon a review of these materials and other documents that are available, the development office shall then certify to the Tax Commissioner that the approved company is in compliance with this section.

    (d) The tax credit allowed in this article is transferable, subject to the written consent of the development office, to an eligible successor company that continues to operate the approved project.

§5B-2E-11. Termination.

    The Development Office may not accept any new project application after December 31, 2013 2019, and all applications submitted prior to January 1, 2013 2020, that have not been previously approved or not approved, shall be deemed not approved and shall be null and void as of January 1,2013 2020.

    Following discussion,

    The question being on the adoption of the Finance committee amendment to the bill, the same was put and prevailed.

    The bill (Eng. Com. Sub. for H. B. No. 4184), as amended, was then ordered to third reading.

    Thereafter, at the request of Senator Sypolt, and by unanimous consent, the remarks by Senators Prezioso and Barnes regarding the adoption of the Finance committee amendment to the bill were ordered printed in the Appendix to the Journal.

    The Senate proceeded to the sixth order of business, which agenda includes the making of main motions.

    On motion of Senator Unger, the Senate requested the return from the House of Delegates of

    Eng. Com. Sub. for House Bill No. 4552, Relating to the court of claims.

    Passed by the Senate in earlier proceedings today,

    The bill still being in the possession of the Senate,

    On motion of Senator Unger, the Senate reconsidered vote as to the passage of the bill.

    The vote thereon having been reconsidered,

    On motion of Senator Unger, the Senate reconsidered its action by which on yesterday, Thursday, March 6, 2014, it adopted Senator Palumbo’s amendment to the bill (shown in the Senate Journal of that day, page 209).

    The vote thereon having been reconsidered,

    The question again being on the adoption of Senator Palumbo’s amendment to the bill.

    Thereafter, at the request of Senator Palumbo, and by unanimous consent, Senator Palumbo’s amendment to the bill was withdrawn.

    On motion of Senator Palumbo, the following substitute amendment to the bill (Eng. Com. Sub. for H. B. No. 4552) was reported by the Clerk and adopted:

    On page fifteen, section twenty-eight, lines ten and eleven, by striking out the words “in any other court of this state” and inserting in lieu thereof the words “and they are not subject to judicial review”.

    The bill, as just amended, was ordered to third reading.

    Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4552) was then read a third time and put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (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. Com. Sub. for H. B. No. 4552) passed with its title.

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

    Without objection, the Senate 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 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 Com. Sub. for Senate Bill No. 373, Relating to water resources protection.

    On motion of Senator Unger, 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:

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

    That §16-1-2 and §16-1-9a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto new sections §16-1-9c, §16-1-9d and §16-1-9e; that §22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §22-30-1, §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, §22-30-20, §22-30-21, §22-30-22, §22-30-23, §22-30-24 and §22-30-25; and that said code be amended and reenacted by adding thereto a new article, designated §22-31-1, §22-31-2, §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; and that said code be amended and reenacted by adding thereto two new sections, designated §24-2G-1 and §24-2G-2, all to read as follows:

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

§16-1-2. Definitions.

    Unless the context in which used clearly requires a different

meaning, As used in this article:

    (a) (1) “Basic public health services” means those services that are necessary to protect the health of the public. The three areas of basic public health services are communicable and reportable disease prevention and control, community health promotion and environmental health protection;

    (b) (2) “Bureau” means the Bureau for Public Health in the department; of health and human resources;

    (c) (3) “Combined local board of health” means is one form of organization for a local board of health and means a board of health serving any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties;

    (d) (4) “Commissioner” means the commissioner of the bureau, for public health, who is the state health officer;

    (e) (5) “County board of health” means is one form of organization for a local board of health and means a local board of health serving a single county;

    (f) (6) “Department” means the West Virginia Department of Health and Human Resources;

    (g) (7) “Director” or “director of health” means the state health officer. Administratively within the department, the bureau for public health through its commissioner carries out the public health functions of the department, unless otherwise assigned by the secretary;

    (h) (8) “Essential public health services” means the core public health activities necessary to promote health and prevent disease, injury and disability for the citizens of the state. The services include:

    (1) (A) Monitoring health status to identify community health problems;

    (2) (B) Diagnosing and investigating health problems and health hazards in the community;

    (3) (C) Informing, educating and empowering people about health issues;

    (4) (D) Mobilizing community partnerships to identify and solve health problems;

    (5) (E) Developing policies and plans that support individual and community health efforts;

    (6) (F) Enforcing laws and rules that protect health and ensure safety;

    (7) (G) Uniting people with needed personal health services and assuring the provision of health care when it is otherwise not available;

    (8) (H) Promoting a competent public health and personal health care workforce;

    (9) (I) Evaluating the effectiveness, accessibility and quality of personal and population-based health services; and

    (10) (J) Researching for new insights and innovative solutions to health problems;

    (i) (9) “Licensing boards” means those boards charged with regulating an occupation, business or profession and on which the commissioner serves as a member;

    (j) (10) “Local board of health,” “local board” or “board” means a board of health serving one or more counties or one or more municipalities or a combination thereof;

    (k) (11) “Local health department” means the staff of the local board of health;

    (l) (12) “Local health officer” means the individual physician with a current West Virginia license to practice medicine who supervises and directs the activities, of the local health department services, staff and facilities of the local health department and is appointed by the local board of health with approval by the commissioner;

    (m) (13) “Municipal board of health” is means one form of organization for a local board of health and means a board of health serving a single municipality;

    (n) (14) “Performance-based standards” means generally accepted, objective standards such as rules or guidelines against which public health performance can be measured;

    (15) “Potential source of significant contamination” means a facility or activity that store, uses or produces substances or compounds with potential for significant contaminating impact if released into the source water of a public water supply.

    (o) (16) “Program plan” or “plan of operation” means the annual plan for each local board of health that must be submitted to the commissioner for approval;

    (17) “Public groundwater supply source” means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine or other primary source of water supplies which is found underneath the surface of the state.

    (18) “Public surface water supply source” means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or other primary sources of water supplies which are found on the surface of the state.

    (19) “Public surface water influenced groundwater supply source” means a source of water supply for a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir or underground mine, and the quantity and quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area.

    (s) (20) “Public water system” means;

    (A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:

    (1) (i) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

    (2) (ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system.

    (B) A public water system does not include a system which meets all of the following conditions:

    (1) (i) Which Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

    (2) (ii) Which Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

    (3) (iii) Which Does not sell water to any person; and

    (4) (iv) Which Is not a carrier conveying passengers in interstate commerce.

    (21) “Public water utility” means a public water system which is regulated by the West Virginia Public Service Commission pursuant to the provisions of chapter twenty-four of this code.

    (q) (22) “Secretary” means the secretary of the state department; of health and human resources;

    (r) (23) “Service area” means the territorial jurisdiction of a local board of health;

    (s) (24) “State Advisory Council on Public Health” is means the advisory body charged by this article with providing advice to the commissioner with respect to the provision of adequate public health services for all areas in the state;

    (t) (25) “State Board of Health” means and refers to, the secretary, notwithstanding any other provision of this code to the contrary, whenever and wherever in this code there is a reference to the state board of health.   

    (26) “Zone of critical concern” for a public surface water supply is a corridor along streams within a watershed that warrant more detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of critical concern is based on a five-hour time of travel of water in the streams to the water intake, plus an additional 1/4 mile below the water intake. The width of the zone of critical concern is 1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

§16-1-9a. Regulation of public water systems.

    (a) A public water system is any water supply or system that regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:

    (1) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of such system and used primarily in connection with such system; and

    (2) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system.

    A public water system does not include a system that meets all of the following conditions:

    (1) Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

    (2) Obtains all of its water from, but is not owned or operated by, a public water system that otherwise meets the definition;

    (3) Does not sell water to any person; and

    (4) Is not a carrier conveying passengers in interstate commerce.

    (a) The commissioner shall regulate public water systems as prescribed in this section.

    (b) (1) The secretary shall prescribe by legislative rule The commissioner shall establish by legislative rule, in accordance with article three, chapter twenty-nine-a of this code:

    (1) The maximum contaminant levels to which all public water systems shall conform in order to prevent adverse effects on the health of individuals;

    and, if the secretary considers appropriate,

    (2) Treatment techniques that reduce the contaminant or contaminants to a level which will not adversely affect the health of the consumer; The rule shall contain

    (3) Provisions to protect and prevent contamination of wellheads and well fields used by public water supplies so that contaminants do not reach a level that would adversely affect the health of the consumer;

    (2) The secretary shall further prescribe by legislative rule

    (4) Minimum requirements for:

    (A) Sampling and testing;

    (B) System operation;

    (C) Public notification by a public water system on being granted a variance or exemption or upon failure to comply with specific requirements of this section and regulations promulgated under this section;

    (D) Record keeping;

    (E) Laboratory certification; and

    (F) as well as Procedures and conditions for granting variances and exemptions to public water systems from state public water systems regulations.

    (3) In addition, The secretary commissioner shall establish by legislative rule, in accordance with article three, chapter twenty-nine-a of this code,

    (5) Requirements covering the production and distribution of bottled drinking water; and may by legislative rule, in accordance with article three, chapter twenty-nine-a of this code, establish

    (6) Requirements governing the taste, odor, appearance and other consumer acceptability parameters of drinking water; and

    (7) Any other requirement the commissioner finds necessary to effectuate the provisions of this article.

    (c) Authorized representatives of the bureau The commissioner or his or her authorized representatives or designees have right of entry to may enter any part of a public water system, whether or not the system is in violation of a legal requirement, for the purpose of inspecting, sampling or testing and shall be furnished records or information reasonably required for a complete inspection.

    (d) The right of entry includes the right for a bureau representative or a designee of a bureau representative to The commissioner, his or her authorized representative or designee may conduct an evaluation necessary to assure the public water system meets federal safe drinking water requirements. The public water system shall provide a written response to the bureau commissioner within forty-five thirty days of receipt of the evaluation by the public water system, addressing corrective actions to be taken as a result of the evaluation.

    (d) (e) (1) Any individual partnership, association, syndicate, company, firm, trust, corporation, government corporation, institution, department, division, bureau, agency, federal agency or any entity recognized by law who violates any provision of this section article, or any of the rules or orders issued pursuant to this section article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 is liable for a civil penalty not less than $1,000 nor more than $500 $5,000. and Each day’s violation shall constitute a separate offense. The commissioner or his or her authorized representative may also seek injunctive relief in the circuit court of the county in which all or part of the public water system is situated for threatened or continuing violations.

    (2) For a willful violation of a provision of this section article, or of any of the rules or orders issued under this section article, for which a penalty is not otherwise provided under subdivision (3) of this subsection, an individual partnership, association, syndicate, company, firm, trust, corporation, government corporation, institution, department, division, bureau, agency, federal agency or entity, recognized by law, upon a finding of a willful violation by the circuit court of the county in which the violation occurs, shall be subject to a civil penalty of not more than $5,000 $10,000 and each day’s violation shall be grounds for a separate penalty.

    (3) The commissioner or his or her authorized representative shall have authority to assess administrative penalties and initiate any proceedings necessary for the enforcement of drinking water rules. The administrative penalty for a violation of any drinking water rule is a minimum of $1,000 per day per violation and a maximum of $2,500 per day per violation for systems serving more than ten thousand persons, a minimum of $250 per day per violation and a maximum of $500 per day per violation for systems serving over three thousand three hundred persons up to and including ten thousand persons, a minimum of $100 per day per violation and a maximum of $200 per day per violation for systems serving three thousand three hundred or fewer persons and each day’s violation shall be grounds for a separate penalty.

    (3) Civil penalties are payable to the commissioner. All moneys collected under this section shall be deposited into a restricted account known as the “Safe Drinking Water penalty Fund”. previously created in the office of the state Treasurer. All money deposited into the fund shall be used by the commissioner to provide technical assistance to public water systems.

    (f) The commissioner, or his or her authorized representative, may also seek injunctive relief in the circuit court of the county in which all or part of the public water system is located for threatened or continuing violations.

§16-1-9c. Required update or completion of source water protection plans.

    (a) On or before July 1, 2016, each existing public water utility which draws and treats water from a surface water supply source or a surface water influenced groundwater supply source shall submit to the commissioner an updated or completed source water protection plan for each of its public water system plants with such intakes, to protect its public water supplies from contamination. Every effort shall be made to inform and engage the public, local governments, local emergency planners, local health departments and affected residents at all levels of the development of the protection plan.

    (b) The completed or updated plan for each affected plant, at a minimum, shall include the following:

    (1) A contingency plan that documents each public water utility’s planned response to contamination of its public surface water supply source or its public surface water influenced groundwater supply source;

    (2) An examination and analysis of the public water system’s ability to isolate or divert contaminated waters from its surface water intake or groundwater supply, and the amount of raw water storage capacity for the public water system’s plant;

    (3) An examination and analysis of the public water system’s existing ability to switch to an alternative water source or intake in the event of contamination of its primary water source;

    (4) An analysis and examination of the public water system’s existing ability to close its water intake in the event the system is advised that its primary water source has become contaminated due to a spill or release into a stream, and the duration of time it can keep that water intake closed without creating a public health emergency;

    (5) The following operational information for each plant receiving water supplies from a surface water source;

    (A) The average number of hours the plant operates each day, and the maximum and minimum number of hours of operation in one day at that plant during the past year; and

    (B) The average quantities of water treated and produced by the plant per day, and the maximum and minimum quantities of water treated and produced at that plant in one day during the past year;

    (6) An analysis and examination of the public water system’s existing available storage capacity on its system, how its available storage capacity compares to the public water system’s normal daily usage, and whether the public water system’s existing available storage capacity can be effectively utilized to minimize the threat of contamination to its system;

    (7) The calculated level of unaccounted for water experienced by the public water system for each surface water intake, determined by comparing the measured quantities of water which are actually received and used by customers served by that water plant to the total quantities of water treated at the water plant over the past year. If the calculated ratio of those two figures is less than 85%, the public water system is to describe all of the measures it is actively taking to reduce the level of water loss experienced on its system;

    (8) A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

    (9) If the public water utility’s water supply plant is served by a single-source intake to a surface water source of supply or a surface water influenced source of supply, the submitted plan shall also include an examination and analysis of the technical and economic feasibility of each of the following options to provide continued safe and reliable public water service in the event its primary source of supply is detrimentally affected by contamination, release, spill event or other reason;

    (A)Constructing or establishing a secondary or backup intake which would draw water supplies from a substantially different location or water source;

    (B) Constructing additional raw water storage capacity and/or treated water storage capacity, to provide at least two days of system storage, based on the plant’s maximum level of production experienced within the past year;

    (C) Creating or constructing interconnections between the public water system with other plants on the public water utility system or another public water system, to allow the public water utility to receive its water from a different source of supply during a period its primary water supply becomes unavailable or unreliable due to contamination, release, spill event or other circumstance;

    (D) Any other alternative which is available to the public water utility to secure safe and reliable alternative supplies during a period its primary source of supply is unavailable or negatively impacted for an extended period; and

    (E) If one or more alternatives set forth in paragraphs (A) through (D) is determined to be technologically or economically feasible, the public water utility shall submit an analysis of the comparative costs, risks and benefits of implementing each of the described alternatives;

    (10) A management plan that identifies specific activities that will be pursued by the public water utility, in cooperation and in concert with the bureau for public health, local health departments, local emergency responders, local emergency planning committee, and other state, county or local agencies and organizations to protect its source water supply from contamination, including but not limited to notification to and coordination with state and local government agencies whenever the use of its water supply is inadvisable or impaired, to conduct periodic surveys of the system, the adoption of best management practices, the purchase of property or development rights, conducting public education or the adoption of other management techniques recommended by the commissioner or included in the source water protection plan;

    (11) A communications plan that documents the manner in which the public water utility, working in concert with state and local emergency response agencies, shall notify the local health agencies and the public of the initial spill or contamination event and provide updated information related to any contamination or impairment of the source water supply or the system’s drinking water supply, with an initial notification to the public to occur in any event no later than thirty minutes after the public water system becomes aware of the spill, release or potential contamination of the public water system;

    (12) A complete and comprehensive list of the potential sources of significant contamination contained within the zone of critical concern, based upon information which is directly provided or can otherwise be requested and obtained from the Department of Environmental Protection, the Bureau for Public Health, the Division of Homeland Security and Emergency Management, and other resources; and

    (13) An examination of the technical and economic feasibility of implementing an early warning monitoring system.

    (c) Any public water utility’s public water system with a primary surface water source of supply or a surface water influenced groundwater source of supply that comes into existence on or after the effective date of this article shall submit prior to the commencement of its operations a source water protection plan satisfying the requirements of subsection (b) of this section.

    (d) The commissioner shall review a plan submitted pursuant to this section and provide a copy to the Secretary of the Department of Environmental Protection. Thereafter, within one hundred eighty days of receiving a plan for approval, the commissioner may approve, reject, or modify the plan as may be necessary and reasonable to satisfy the purposes of this article. The commissioner shall consult with the local public health officer and conduct at least one public hearing when reviewing the plan. Failure by a public water system to comply with a plan approved pursuant to this section is a violation of this article.

    (e) The commissioner may request a public water utility to conduct one or more studies to determine the actual risk and consequences related to any potential source of significant contamination identified by the plan, or as otherwise made known to the commissioner.

    (f) Any public water utility required to file a complete or updated plan in accordance with the provisions of this section shall submit an updated source water protection plan at least every three years or when there is a substantial change in the potential sources of significant contamination within the identified zone of critical concern.

    (g) Any public water utility required to file a complete or updated plan in accordance with the provisions of this section shall review any source water protection plan it may currently have on file with the bureau and update it to ensure it conforms with the requirements of subsection (b) of this section on or before July 1, 2016.

    (h) The commissioner’s authority in reviewing and monitoring compliance with a source water protection plan may be transferred by the bureau to a nationally accredited local board of public health.

§16-1-9d. Wellhead and Source Water Protection Grant Program.

    (a) The commissioner shall continue the Wellhead and Source Water Protection Grant Program.

    (b) The fund heretofore created to provide funds for the Wellhead and Source Water Protection Grant Program is continued in the state treasury and shall be known as the “Wellhead and Source Water Protection Grant Fund.” The fund shall be administered by the commissioner and shall consist of all moneys made available for the program from any source, including but not limited to all fees, civil penalties and assessed costs, all gifts, grants, bequests or transfers from any source, any moneys that may be appropriated and designated for the program by the Legislature, and all interest or other return earned from investment of the fund. Expenditures from the fund shall be for the purposes set forth in this article to provide water source protection pursuant to the program and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal years ending June 30, 2014 and 2015, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature. Any balance, including accrued interest and other returns, remaining in the fund at the end of each fiscal year shall not revert to the general revenue fund but shall remain in the fund and be expended as provided by this section.

    (c) In prospectively awarding any grants under the Wellhead and Source Water Protection Grant Program, the commissioner shall prioritize those public water systems where there is the highest probability of contamination of the water source based on the source water assessment report or the source water protection plans which were previously performed. Priority shall also be extended to publicly owned public water systems over privately owned public water systems.

    (d) The commissioner, or his or her designee, shall apply for and diligently pursue all available federal funds to help offset the cost of completing source water protection plans by the deadlines established in section nine-c of this article.

    (e) The commissioner may receive any gift, federal grant, other grant, donation or bequest and receive income and other funds or appropriations to contribute to the Wellhead and Source Water Protection Plan Grant Program.

§16-1-9e. Long-term medical study.

    The Bureau of Public Health shall endeavor to engage the Center for Disease Control and other federal agencies for the purpose of creating, organizing and implementing a medical study to assess any long term health effects resulting from the chemical spill that occurred on January 9, 2014, and which exposed the public to chemicals, including 4-methylcyclohexane.

    The commissioner shall conduct such study pursuant to the authority granted to the commissioner pursuant to article one, section six, chapter sixteen of this code; Provided, That, in the event the commissioner determines that, in order to adequately perform such study, additional authority is required, the commissioner shall provide a report of such additional authority requested to the Governor and the Joint Committee on Government and Finance.

    The commissioner shall cause to be collected and preserved information from health providers who treated patients presenting with symptoms diagnosed as having been caused or exacerbated as a result of exposure related to the January 9, 2014, chemical spill. The commissioner shall analyze such data and other information deemed relevant by the commissioner and provide a report of the commissioner’s findings regarding potential long term health effects of the January 9, 2014, chemical spill to the Joint Committee on Health by January 1, 2015, including the results of its efforts to engage federal cooperation and assistance for a long term comprehensive study on the costs of conducting such study on behalf of the state.

CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 26. WATER RESOURCES PROTECTION AND MANAGEMENT ACT.

§22-26-2. Definitions.

    For purposes of this article: the following words have the meanings assigned unless the context indicates otherwise

    (a) (1) “Baseline average” means the average amount of water withdrawn by a large quantity user over a representative historical time period as defined by the secretary.

    (b) (2) “Beneficial use” means uses that include, but are not limited to, public or private water supplies, agriculture, tourism, commercial, industrial, coal, oil and gas and other mineral extraction, preservation of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation and preservation of cultural values.

    (c) (3) “Commercial well” means a well that serves small businesses and facilities in which water is the prime ingredient of the service rendered, including water wells drilled to support horizontal well operations.

    (d) (4) “Community water system” means a public water system that pipes water for human consumption to at least fifteen service connections used by year-round residents or one that regularly serves at least twenty-five residents.

    (e) (5) “Consumptive withdrawal” means any withdrawal of water which returns less water to the water body than is withdrawn.

    (6) “Department” means the West Virginia Department of Environmental Protection.

    (f) (7) “Farm use” means irrigation of any land used for general farming, forage, aquaculture, pasture, orchards, nurseries, the provision of water supply for farm animals, poultry farming or any other activity conducted in the course of a farming operation.

    (g) (8) “Industrial well” means a well used exclusively for nonpotable purposes, including in industrial processing, fire protection, washing, packing or manufacturing of a product excluding food and beverages, or other nonpotable uses.

    (h) (9) “Interbasin transfer” means the permanent removal of water from the watershed from which it is withdrawn.

    (i) (10) “Large-quantity user” means any person who withdraws over seven three hundred fifty thousand gallons of water in a any calendar month thirty-day period from the state’s waters and any person who bottles water for resale regardless of quantity withdrawn. “Large-quantity user” excludes farm use, including watering livestock or poultry on a farm, though farms may voluntarily report water withdrawals to assist with the accuracy of the survey.

    (j) (11) “Maximum potential” means the maximum designed capacity of a facility to withdraw water under its physical and operational design.

    (k) (12) “Noncommunity nontransient water system” means a public water system that serves at least twenty-five of the same persons over six months per year.

    (l) (13) “Nonconsumptive withdrawal” means any withdrawal of water which is not a consumptive withdrawal as defined in this section.

    (m) (14) “Person”, “persons” or “people” means an individual, public and private business or industry, public or private water service and governmental entity.

    (n) (15) “Secretary” means the Secretary of the Department of Environmental Protection or his or her designee.

    (o) (16) “Transient water system” means a public water system that serves at least twenty-five transient people at least sixty days a year.”

    (p) (17) “Test well” means a well that is used to obtain information on groundwater quantity, quality, aquifer characteristics and availability of production water supply for manufacturing, commercial and industrial facilities.

    (q) (18) “Water resources”, “water” or “waters” means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial settling basins and ponds and waste treatment facilities are excluded from the waters of the state.

    (r) (19) “Watershed” means a hydrologic unit utilized by the United States Department of Interior’s geological survey, adopted in 1974, as a framework for detailed water and related land-resources planning.

    (s) (20) “Withdrawal” means the removal or capture of water from water resources of the state regardless of whether it is consumptive or nonconsumptive: Provided, That water encountered during coal, oil, gas, water well drilling and initial testing of water wells, or other mineral extraction and diverted, but not used for any purpose and not a factor in low-flow conditions for any surface water or groundwater, is not deemed a withdrawal.

§22-26-3. Waters claimed by state; water resources protection survey; registration requirements; agency cooperation; information gathering.

    (a) The waters of the State of West Virginia are hereby claimed as valuable public natural resources held by the state for the use and benefit of its citizens. The state shall manage the quantity of and protect its waters effectively for present and future use and enjoyment and for the protection of the environment. Therefore, it is necessary for the state to determine the nature and extent of its water resources, the quantity of water being withdrawn or otherwise used and the nature of the withdrawals or other uses: Provided, That no provisions of this article may be construed to amend or limit any other rights and remedies created by statute or common law in existence on the date of the enactment of this article.

    (b) The secretary shall conduct an ongoing water resources survey of consumptive and nonconsumptive surface water and groundwater withdrawals by large quantity users in this state. The secretary shall determine the form and format of the information submitted, including the use of electronic submissions. The secretary shall establish and maintain a statewide registration program to monitor large quantity users of water resources. of this state beginning in 2006.

    (c) Large-quantity users, except those who purchase water from a public or private water utility or other service that is reporting its total withdrawal, shall register with the department of Environmental Protection and provide all requested survey information regarding withdrawals of the water resources. Multiple withdrawals from state water resources that are made or controlled by a single person and used at one facility or location shall be considered a single withdrawal of water. Water withdrawals for self-supplied farm use and private households will be estimated. Water utilities regulated by the Public Service Commission pursuant to article two, chapter twenty-four of this code are exempted from providing information on interbasin transfers to the extent those transfers are necessary to provide water utility services within the state.

    (d) Except as provided in subsection (f) of this section, large-quantity users who withdraw water from a West Virginia water resource shall comply with the survey and registration requirements of this article. Registration shall be maintained annually by every large-quantity user by certifying, on forms and in a manner prescribed by the secretary. that the amount withdrawn in the previous calendar year varies by no more than ten percent from the users’ baseline average or by certifying the change in usage.

    (e) The secretary shall maintain a listing of all large- quantity users and each user’s baseline average water withdrawal.

    (f) The secretary shall make a good faith effort to obtain survey and registration information from persons who are withdrawing water from in-state water resources, but who are located outside the state borders.

    (g) All state agencies and local governmental entities that have a regulatory, research, planning or other function relating to water resources, including, but not limited to, the State Geological and Economic Survey, the Division of Natural Resources, the Public Service Commission, the Bureau for Public Health, the Commissioner of the Department of Agriculture, the Division of Homeland Security and Emergency Management, Marshall University, West Virginia University and regional, county and municipal planning authorities may enter into interagency agreements with the secretary and shall cooperate by: (i) Providing information relating to the water resources of the state; (ii) providing any necessary assistance to the secretary in effectuating the purposes of this article; and (iii) assisting in the development of a state water resources management plan. The secretary shall determine the form and format of the information submitted by these agencies.

    (h) Persons required to participate in the survey and registration shall provide any reasonably available information on stream flow conditions that impact withdrawal rates.

    (i) Persons required to participate in the survey and registration shall provide the most accurate information available on water withdrawal during seasonal conditions and future potential maximum withdrawals or other information that the secretary determines is necessary for the completion of the survey or registration: Provided, That a coal-fired electric generating facility shall also report the nominal design capacity of the facility, which is the quantity of water withdrawn by the facility’s intake pumps necessary to operate the facility during a calendar day.

    (j) The secretary shall, to the extent reliable water withdrawal data is reasonably available from sources other than persons required to provide data and participate in the survey and registration, utilize that data to fulfill the requirements of this section. If the data is not reasonably available to the secretary, persons required to participate in the survey and registration are required to provide the data. Altering locations of intakes and discharge points that result in an impact to the withdrawal of the water resources by an amount of ten percent or more from the consecutive baseline average shall also be reported.

    (k) The secretary shall report annually to the Joint Legislative Oversight Commission on State Water Resources on the survey results. The secretary shall also make a progress report every three years annually on the development implementation of the State Water Resources Management Plan and any significant changes that may have occurred since the survey report State Water Resources Management Plan was submitted in two thousand six 2013.

    (l) In addition to any requirements for completion of the survey established by the secretary, the survey must accurately reflect both actual and maximum potential water withdrawal. Actual withdrawal shall be established through metering, measuring or alternative accepted scientific methods to obtain a reasonable estimate or indirect calculation of actual use.

    (m) The secretary shall make recommendations to the joint Legislative Oversight Commission on Water Resources created in section five of this article relating to the implementation of a water quantity management strategy for the state or regions of the state where the quantity of water resources are found to be currently stressed or likely to be stressed due to emerging beneficial or other uses, ecological conditions or other factors requiring the development of a strategy for management of these water resources.

    (n) The secretary may propose rules pursuant to article three, chapter twenty-nine-a of this code as necessary to implement the survey registration or plan requirements of this article.

    (o) The secretary is authorized to enter into cooperative agreements with local, state and federal agencies and private policy or research groups to obtain federal matching funds, conduct research and analyze survey and registration data and other agreements as may be necessary to carry out his or her duties under this article.

    (p) The department, the Division of Natural Resources, the Division of Highways and the Conservation Agency (cooperating state agencies) shall continue providing matching funds for the United States Geological Survey’s (USGS) stream-gauging network to the maximum extent practicable. Should a cooperating state agency become unable to maintain its contribution level, it should notify the USGS and the commission of its inability to continue funding for the subsequent federal fiscal year by July 1, in order to allow for the possible identification of alternative funding resources.

§22-26-5. Joint Legislative Oversight Commission on State Water Resources.

    (a) The President of the Senate and the Speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a joint legislative oversight commission charged with immediate and ongoing oversight of the water resources survey, registration and development of a state water resources management plan. This commission shall be known as the Joint Legislative Oversight Commission on State Water Resources and shall regularly investigate and monitor all matters relating to the water resources, including the survey and plan.

    (b) The expenses of the commission, including the cost of conducting the survey and monitoring any subsequent strategy and those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel, are to be approved by the Joint Committee on Government and Finance and paid from legislative appropriations.

§22-26-6. Mandatory survey and registration compliance.

    (a) The water resources survey and subsequent registry will provide critical information for protection of the state’s water resources and, thus, mandatory compliance with the survey and registry is necessary.

    (b) All large-quantity users who withdraw water from a West Virginia water resource shall complete the survey and register such use with the department of Environmental Protection. Any person who fails to complete the survey or register, provides false or misleading information on the survey or registration, or fails to provide other information as required by this article may be subject to a civil administrative penalty not to exceed $5,000 to be collected by the secretary consistent with the secretary’s authority pursuant to this chapter. Every thirty days after the initial imposition of the civil administrative penalty, another penalty may be assessed if the information is not provided. The secretary shall provide written notice of failure to comply with this section thirty days prior to assessing the first administrative penalty.

§22-26-7. Secretary authorized to log wells; collect data.

    (a) In order to obtain important information about the state’s surface and groundwater, the secretary is authorized to collect scientific data on surface and groundwater and to enter into agreements with local and state agencies, the federal government and private entities to obtain this information.

    (1) (b) Any person who installs a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial or test well shall notify the secretary of his or her intent to drill a water well no less than ten days prior to commencement of drilling. The ten-day notice is the responsibility of the owner, but may be given by the drilling contractor.

    (2) (c) The secretary has the authority to gather data, including driller and geologist logs, run electric and other remote-sensing logs and devices and perform physical characteristics tests on nonresidential and multifamily water wells.

    (3) (d) The drilling contractor shall submit to the secretary a copy of the well completion forms submitted to the Division of Health Bureau for Public Health for a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial or test well. The drilling contractor shall also provide the well GPS location and depth to groundwater on the well report submitted to the secretary.

    (4) (e) Any person who fails to notify the secretary prior to drilling a well or impedes collection of information by the secretary under this section is in violation of the Water Resources Protection and Management Act and is subject to the civil administrative penalty authorized by section six of this article.

    (5) (f) Any well contracted for construction by the secretary for groundwater or geological testing must be constructed at a minimum to well design standards as promulgated by the Division of Health Bureau for Public Health. Any wells contracted for construction by the secretary for groundwater or geological testing that would at a later date be converted to a public use water well must be constructed to comport to state public water design standards.

§22-26-8. State Water Resources Management Plan; powers and duty of secretary.

    (a) The secretary of the Department of Environmental Protection shall oversee the development of a State Water Resources Management Plan to be completed no later than November 30, 2013. The plan shall be reviewed and revised as needed after its initial adoption. The plan shall be developed with the cooperation and involvement of local and state agencies with regulatory, research or other functions relating to water resources including, but not limited to, those agencies and institutions of higher education set forth in section three of this article and a representative of large quantity users. The State Water Resources Management Plan shall be developed utilizing the information obtained pursuant to said section and any other relevant information available to the secretary.

    (b) The secretary shall develop definitions for use in the State Water Resources Management Plan for terms that are defined differently by various state and federal governmental entities as well as other terms necessary for implementation of this article.

    (c) The secretary shall continue to develop and obtain the following:

    (1) An inventory of the surface water resources of each region of this state, including an identification of the boundaries of significant watersheds and an estimate of the safe yield of such sources for consumptive and nonconsumptive uses during periods of normal conditions and drought.

    (2) A listing of each consumptive or nonconsumptive withdrawal by a large-quantity user, including the amount of water used, location of the water resources, the nature of the use, location of each intake and discharge point by longitude and latitude where available and, if the use involves more than one watershed or basin, the watersheds or basins involved and the amount transferred.

    (3) A plan for the development of the infrastructure necessary to identify the groundwater resources of each region of this state, including an identification of aquifers and groundwater basins and an assessment of their safe yield, prime recharge areas, recharge capacity, consumptive limits and relationship to stream base flows.

    (4) After consulting with the appropriate state and federal agencies, assess and project the existing and future nonconsumptive use needs of the water resources required to serve areas with important or unique natural, scenic, environmental or recreational values of national, regional, local or statewide significance, including national and state parks; designated wild, scenic and recreational rivers; national and state wildlife refuges; and the habitats of federal and state endangered or threatened species.

    (5) Assessment and projection of existing and future consumptive use demands.

    (6) Identification of potential problems with water availability or conflicts among water uses and users including, but not limited to, the following:

    (A) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where a drought or flood has occurred or is likely to occur that threatens the beneficial use of the surface water or groundwater in the area; and

    (B) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow conditions to the detriment of the water resources.

    (7) Establish criteria for designation of critical water planning areas comprising any significant hydrologic unit where existing or future demands exceed or threaten to exceed the safe yield of available water resources.

    (8) An assessment of the current and future capabilities of public water supply agencies and private water supply companies to provide an adequate quantity and quality of water to their service areas.

    (9) An assessment of flood plain and stormwater management problems.

    (10) Efforts to improve data collection, reporting and water monitoring where prior reports have found deficiencies.

    (11) A process for identifying projects and practices that are being, or have been, implemented by water users that reduce the amount of consumptive use, improve efficiency in water use, provide for reuse and recycling of water, increase the supply or storage of water or preserve or increase groundwater recharge and a recommended process for providing appropriate positive recognition of such those projects or practices in actions, programs, policies, projects or management activities.

    (12) An assessment of both structural and nonstructural alternatives to address identified water availability problems, adverse impacts on water uses or conflicts between water users, including potential actions to develop additional or alternative supplies, conservation measures and management techniques.

    (13) A review and evaluation of statutes, rules, policies and institutional arrangements for the development, conservation, distribution and emergency management of water resources.

    (14) A review and evaluation of water resources management alternatives and recommended programs, policies, institutional arrangements, projects and other provisions to meet the water resources needs of each region and of this state.

    (15) Proposed methods of implementing various recommended actions, programs, policies, projects or management activities.

    (d) The State Water Resources Management Plan shall consider:

    (1) The interconnections and relationships between groundwater and surface water as components of a single hydrologic resource.

    (2) Regional or watershed water resources needs, objectives and priorities.

    (3) Federal, state and interstate water resource policies, plans, objectives and priorities, including those identified in statutes, rules, regulations, compacts, interstate agreements or comprehensive plans adopted by federal and state agencies and compact basin commissions.

    (4) The needs and priorities reflected in comprehensive plans and zoning ordinances adopted by a county or municipal government.

    (5) The water quantity and quality necessary to support reasonable and beneficial uses.

    (6) A balancing and encouragement of multiple uses of water resources, recognizing that all water resources of this state are capable of serving multiple uses and human needs, including multiple uses of water resources for reasonable and beneficial uses.

    (7) The distinctions between short-term and long-term conditions, impacts, needs and solutions to ensure appropriate and cost-effective responses to water resources issues.

    (8) Application of the principle of equal and uniform treatment of all water users that are similarly situated without regard to established political boundaries.

    (e) In November of each year, Each November, the secretary shall report to the Joint Legislative Oversight Commission on State Water Resources on the implementation of the State Water Resources Management Plan. The report on the water resources plan shall include benchmarks for achieving the plan’s goals and time frames for meeting them.

    (f) Upon adoption of the state Water Resources Management Plan by the Legislature, the report requirements of this article shall be superceded by the plan and subsequent reports shall be on the survey results and the water resources plan. If the plan is not adopted a detailed report discussing the provisions of this section as well as progress reports on the development of the plan shall be submitted every three years. The State Water Resources Management Plan is adopted. Persons identified as large-quantity users prior to the effective date of this subsection shall report actual monthly water withdrawals, or monthly water withdrawals by a method approved by the secretary, for the previous calendar year by March 31 of each succeeding year. Persons identified as large-quantity users on or after the effective date of this subsection shall submit their initial annual report no later than March 31, 2016, and subsequent annual reports by March 31 of each year thereafter.

ARTICLE 30. THE ABOVEGROUND STORAGE TANK ACT.

§22-30-1. Short title.

    This article may be known and cited as the Aboveground Storage Tank Act.

§22-30-2. Legislative findings.

    (a) The West Virginia Legislature finds the public policy of the State of West Virginia is to protect and conserve the water resources for the state and its citizens. The state’s water resources are vital natural resources that are essential to maintain, preserve and promote human health, quality of life and economic vitality of the state.

    (b) The West Virginia Legislature further finds the public policy of the state is for clean, uncontaminated water to be made available for its citizens who are dependent on clean water as a basic need for survival, and who rely on the assurances from public water systems and the government that the water is safe to consume.

    (c) The West Virginia Legislature further finds it in the public policy of the state that clean, uncontaminated water be available to its businesses and industries that rely on water for their economic survival, and the well-being of their employees. These include hospitals and the medical industry, schools and educational institutions, the food and hospitality industries, the tourism industry, manufacturing, coal, natural gas and other industries. Businesses and industries searching for places to locate or relocate consider the quality of life for their employees as well as the quality of the raw materials such as clean water.

    (d) The Legislature further finds that large quantities of fluids are stored in aboveground storage tanks within the state and that emergency situations involving these fluids can and will arise that may present a hazard to human health, safety, the water resources, the environment and the economy of the state. The Legislature further recognizes that some of these fluids have been stored in aboveground storage tanks in a regulated manner insufficient to protect human health, safety, water resources, the environment and the economy of the state.

§22-30-3. Definitions.

    For purposes of this article:

    (1) “Aboveground storage tank” or “tank” means a device made to contain an accumulation of more than 1320 gallons of fluids that are liquids at standard temperature and pressure, which is constructed primarily of non-carbon materials, including wood, concrete, steel, plastic or fiberglass reinforced plastic, which provide structural support, more than 90% capacity of which is above the surface of the ground, but does not include any process vessel. The term includes stationary devices which are permanently affixed, and mobile devices which remain in one location on a continuous basis for 60 or more days, and includes all ancillary aboveground pipes and dispensing systems up to the first point of isolation and all ancillary underground pipes and dispensing systems connected to the aboveground containers to the first point of isolation. Notwithstanding any other provision of this code to the contrary, shipping containers, including railroad freight cars, subject to federal regulation under the Federal Railroad Safety Act, 49 U.S.C. §§20101-2015, as amended, including but not limited to federal regulations promulgated thereunder at 49 CAR 172, 173 or 174, or subject to other federal law governing the transportation of hazardous materials are not subject to any provision of this article or of article thirty-one of this chapter. Notwithstanding any other provision of this code to the contrary, barges or boats subject to federal regulation under the United States Coast Guard, United States Department of Homeland Security, including but not limited to federal regulations promulgated at 33 CAR 1, et seq., or subject to other federal law governing the transportation of hazardous materials are not subject to any provision of this article or of article thirty-one of this chapter.

    (2) “Department” means the West Virginia Department of Environmental Protection.

    (3) “Nonoperational storage tank” means an empty aboveground storage tank in which fluids will not be deposited or from which fluids will not be dispensed on or after the effective date of this article.

    (4) “Operator” means any person in control of, or having responsibility for, the daily operation of an aboveground storage tank.

    (5) “Owner” means a person who holds title to, controls or owns an interest in an aboveground storage tank, including owners of tanks immediately preceding the discontinuation of a tank’s use. “Owner” does not mean a person who holds an interest in a tank for financial security, unless the holder has taken possession of and operated the tank.

    (6) “Person”, “persons” or “people” means any individual, trust, firm, owner, operator, corporation or other legal entity, including the United States government, an interstate commission or other body, the state or any agency, board, bureau, office, department or political subdivision of the state, but does not include the Department of Environmental Protection.

    (7) “Process vessel” means tanks, containers or other vessels utilized in a facility in the manufacturing process through which there is a steady, variable, recurring or intermittent flow of materials. This does not include tanks used for storage of materials prior to their introduction into the production process or for the storage of finished products or by-products of the production process.

    (8) “Public groundwater supply source” means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine or other primary source of water supplies which is found underneath the surface of the state.

    (9) “Public surface water supply source” means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or other primary sources of water supplies which are found on the surface of the state.

    (10) “Public surface water influenced groundwater supply source” means a source of water supply from a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir or underground mine, and the quantity or quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area.

(11) “Public water system” means:

     (A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:

(i) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

(ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system.

(B) A public water system does not include a system which meets all of the following conditions:

(i) Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

(ii) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

(iii) Does not sell water to any person; and

(iv) Is not a carrier conveying passengers in interstate commerce.

(12) “Release” means any spilling, leaking, emitting, discharging, escaping, leaching or disposing of fluids from an aboveground storage tank into groundwater, surface water or subsurface soils. The term shall also include spilling, leaking, emitting, discharging, escaping, leaching or disposing of fluids from an aboveground storage tank into a containment structure or facility that poses an immediate threat of contamination of the soils, subsurface soils, surface water or groundwater: Provided, That the overfill or spillage of up to 20 gallons of fluid during the loading or unloading of liquids shall not be required to be reported if the overflow or spillage is wholly contained within a containment structure or facility, it is promptly cleaned up, and no portion of the overfill or spillage escapes onto the ground or into adjacent surface water.

(13) “Secondary containment” means a safeguard applied to one or more tanks that prevents the discharge into the waters of the state of the entire capacity of the largest single tank and sufficient freeboard to contain precipitation. In order to qualify as secondary containment, the barrier and containment field must be sufficiently impervious to contain fluids in the event of a release, and may include double-walled tanks, dikes, containment curbs, pits or a drainage trench enclosures that safely confine the release from a tank in a facility catchment basin or holding pond.    (14) “Secretary” means the Secretary of the Department of Environmental Protection, or his or her designee.

    (15) “Source water protection area” for a public groundwater supply source is the area within an aquifer that supplies water to a public water supply well within a five-year time-of-travel, and is determined by the mathematical calculation of the locations from which a drop of water placed at the edge of the protection area would theoretically take five years to reach the well.

    (16) “Zone of critical concern” for a public surface water supply is a corridor along streams within a watershed that warrant more detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of critical concern is based on a five-hour time of travel of water in the streams to the water intake, plus an additional 1/4 mile below the water intake. The width of the zone of critical concern is 1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream. 

§22-30-4. Inventory and registration of existing aboveground storage tanks.

    (a) To assure protection of the water resources of the state, the secretary shall compile an inventory of all aboveground storage tanks in existence this state, regardless of whether it is an operational or nonoperational storage tank on the effective date of this article. The secretary shall prescribe an inventory and registration form for this purpose within thirty days of the effective date of the enactment of this article.

    (b) At a minimum the inventory form shall identify the ownership of the tank, tank location, date of installation if known, type of construction, capacity and age of the tank, the type and volume of fluid stored therein, and the identity of and distance to the nearest groundwater public water supply intake and/or nearest surface water downstream public water supply intake.

    (c) If the inventoried tank is regulated under any existing state or federal regulatory program, the owner of the tank shall be required to provide the identifying number of any license, registration or permit issued for the tank, and identify the regulatory standards and requirements the tank is required to meet.

    (d) Any aboveground storage tank placed into service on or after the effective date of this section, but prior to the establishment of a permit program, shall complete and submit an inventory form with the secretary.

    (e) Upon receipt of an inventory form, the secretary shall determine whether the storage tank is required to meet the minimum design, construction, inspection, secondary containment, leak reporting and performance standards equivalent to or greater than the standards and requirements established under an existing license or permit issued for the individual storage tank, storage tank farm or site on which the storage tank is located.

    (f) The secretary may charge a reasonable fee to cover the cost of maintaining and overseeing the inventory and registration program. The fee may be set by emergency and legislative rules proposed for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That for persons owning a commercial establishment which utilizes an aboveground storage tank for public sale of gasoline, diesel fuel, off road/heating oil or kerosene, if the tank has an adequate secondary containment system, or the tank is double walled, and the owner is submitting a tier II report to the local Emergency Medical Services 911 Center and to local first responders, and permitting of the establishment is as a retail facility and is not being regulated as a storage facility (tank farm), that tank shall only be subject to a one-time registration fee.

    (g) On and after October 1, 2014, it shall be unlawful for any owner or operator to operate or use an aboveground storage tank subject to this article which has not been properly registered or for which any applicable registration fee has not been paid.

§22-30-5. Aboveground Storage Tank Regulatory Program; promulgation of appropriate aboveground tank standards; permitting procedures and waiver requirements; rulemaking requirements.

    (a) The secretary shall promulgate for review and consideration by the West Virginia Legislature as legislative rules during the 2015 Regular Session of the West Virginia Legislature, on all matters related to this article.

    (b) To assure further protection of the water resources of the state, the secretary shall develop a regulatory program for new and existing aboveground storage tanks incorporating nationally recognized tank standards such as those standards developed by the American Petroleum Institute (“API”), the Steel Tank Institute (“STI”) or comparable authorities, and taking into account the size, location and contents of the tanks. At a minimum, the program shall include the following:

    (1) A requirement to submit a verified application for a permit containing information as may be prescribed by the secretary;

    (2) Performance standards for design, construction, installation, maintenance, corrosion detection and maintenance, release detection and prevention and secondary containment to ensure the structural integrity of the storage tank and the secondary containment;

    (3) Requirements for maintaining a leak detection system, inventory control systems together with tank testing or a comparable system or method designed to identify releases from aboveground storage tanks in a manner consistent with the protection of human health, safety, water resources and the environment;

    (4) Requirements for maintaining records of any monitoring or leak detection system, corrosion prevention, inventory control system or tank testing system;

    (5) Requirements for early detection of releases and immediate reporting of releases;

    (6) Requirements for developing a corrective action plan to expeditiously respond to any releases;

    (7) Requirements for the closure of aboveground storage tanks and remediation to prevent future releases of fluids or materials to the state’s water resources;

    (8) Requirements for certification of installation, removal, retrofit, corrosion and other testing and inspection of aboveground storage tanks, leak detection systems and secondary containment by a qualified registered professional engineer regulated and licensed by the State Board of Registration for Professional Engineers, or by an individual certified to perform tank inspections by the American Petroleum Institute, or by a person holding certification under another program approved by the secretary;

    (9) Requirements for life-cycle management of aboveground storage tanks that include mitigation and corrosion prevention plans that include but are not limited to:

    (A) A life-cycle maintenance schedule for the use of protective coatings and or other repair, rehabilitation, and maintenance methods used for the preservation of aboveground storage tanks;

    (B) A process for ensuring that corrosion prevention and mitigation is carried out according to corrosion prevention industry standards adopted by the Secretary for aboveground storage tanks that includes the use of industry trained and certified:

    (i) Protective coatings personnel to carry out surface preparation operations and coating application on any type of substrate and or surface, but especially concrete and steel;

    (ii) Cathodic protection experts for all aspects of corrosion prevention projects requiring knowledge of the design, installation, monitoring, or maintenance of a cathodic protection system; and

    (iii) Inspectors to ensure best practices and standards are adhered to on a corrosion prevention and mitigation project;

    (C) A plan to prevent environmental degradation that could occur as a result of carrying out corrosion prevention and mitigation including, but not limited to the careful handling and containment of hazardous materials, not including the contaminant within, removed from the interior and or exterior of an aboveground storage tank; and 

    (D) Use of industry experts for consultation and direct to determine whether to approve a corrosion prevention and mitigation plan, or any part therein, the Secretary shall consult, and interact directly with, corrosion industry experts specializing in the training and certification of personnel to carry out corrosion prevention and mitigation methods.

    (10) The assessment of permit application and registration fees as determined by the secretary;

    (11) Permit issuance only after the application and any other supporting documents have been submitted, reviewed and approved by the secretary, and that permits may be issued with certain conditions or contingencies;

    (12) A requirement that any aboveground storage tank maintenance work shall commence within six months from the date the permit was issued and must be completed within one year of commencement. If the work has not started or is not completed during the stated time periods, the permit shall expire and a new permit shall be required unless a written extension is granted by the secretary. An extension may be granted only if the applicant can demonstrate that the delay was not deliberate and that the delay will not present harm to human health, safety, water resources or the environment;

    (13) A procedure for the administrative resolution of violations including the assessment of administrative civil penalties;

    (14) A procedure for any person adversely affected by a decision or order of the secretary relating to the aboveground storage tank program to appeal to the Environmental Quality Board, pursuant to the provisions of article one, chapter twenty-two-b of this code;

    (15) In coordination and cooperation with the Bureau for Public Health and the Division of Homeland Security and Emergency Management, create a process and procedure for identifying any aboveground storage tanks which are located within a defined zone of critical concern for a public water system’s surface water intake or within a defined source water protection area for a public water system’s groundwater intake, and determining whether additional permit requirements and inspections should be imposed on that tank or facility by requiring the issuance of any new permit pursuant to this article, or by amending any existing permit which may pertain to that tank or facility, under this chapter, or by any other article of this chapter;

    (16) Requirements for maintaining written or electronic records that log at least the following information for each aboveground storage tank: tank numbers, additives, verifiable content levels, deliveries, amounts and quantities, dispensing, repairs and maintenance; and including the requirement that such logs be signed by the owner or a designated responsible supervisor, and be available for inspection upon request of the secretary; and

    (17) Compliance with a nationally-recognized tank standard as solely determined by the Department, shall be deemed compliance with the requirements that are developed in accordance with subsection nine.

§22-30-6. Annual inspection and certification.

    (a) Every owner or operator of an aboveground storage tank regulated herein shall have an annual inspection of each tank performed by a qualified registered professional engineer or a qualified person working under the direct supervision of a registered professional engineer, regulated and licensed by the State Board of Registration for Professional Engineers, or by an individual certified to perform tank inspections by the American Petroleum Institute, or by a person holding certification under another program approved by the secretary. Every owner or operator shall submit, on a form prescribed by the secretary, a certification from the engineer that each tank, associated equipment, leak detection system and secondary containment structure meets the minimum standards established by this article or by the secretary by rule.

    (b) The certification form shall be submitted to the secretary on or before January 1, 2015, and each year thereafter.

§22-30-7. Financial responsibility.

    The secretary shall promulgate rules requiring owners and operators to provide evidence of adequate financial resources to undertake reasonable corrective action for releases of fluid from aboveground storage tanks. The means of demonstrating adequate financial responsibility may include, but not be limited to, providing evidence of current insurance, guarantee, surety bond, letter of credit, proof of assets, trust fund or qualification as a self insurer.

§22-30-8. Corrective action.

    (a) Prior to the effective date of the emergency and legislative rules promulgated pursuant to the authority granted under this article, the secretary is authorized to:

    (1) Require the owner or operator to develop a preliminary corrective action plans taking into consideration the types of fluids and types of tanks on the premises;

    (2) Require the owner or operator of an aboveground storage tank to undertake prompt corrective action to protect human health, safety, water resources or the environment from contamination caused by a release; or

    (3) Undertake immediate corrective action with respect to any release or threatened release of fluid from an aboveground storage tank when, in the judgment of the secretary, the action is necessary to protect human health, safety, water resources or the environment from contamination caused by a release.

    (b) The corrective action undertaken or required by this section shall be what may be necessary to protect human health, water resources and the environment from contamination caused by a release, including the ordered cessation or closure of a source of contamination and the ordered remediation of a contaminated site. The secretary shall use funds in the Protect Our Water Fund established pursuant to this article for payment of costs incurred for corrective action taken by the secretary in accordance with this article. In undertaking corrective actions under this section and in issuing orders requiring owners or operators to undertake the actions, the secretary shall give priority to releases or threatened releases of fluid from aboveground storage tanks that pose the greatest threat to human health, water resources or the environment.

    (c) Following the effective date of rules promulgated pursuant to this article, all actions or orders of the secretary shall be in conformity with those rules. Following the effective date of the rules, the secretary may undertake corrective action with respect to any release or threatened release of fluid from an aboveground storage tank only if, in the judgment of the secretary, the action is necessary to protect human health, safety, water resources or the environment from contamination, and one or more of the following situations exists:

    (1) If no person can be found within thirty days, or a shorter period as may be necessary to protect human health, safety, water resources and the environment, who is an owner or operator of the aboveground storage tank at issue and who is capable of carrying out the corrective action properly;

    (2) A situation exists that requires immediate action by the secretary under this section to protect human health, safety, water resources or the environment;

    (3) The cost of corrective action to be expended on an aboveground storage tank exceeds the amount of resources that the owner or operator can reasonably be expected to possess based on the information required to be submitted pursuant to this article and, considering the fluid being stored in the aboveground storage tank in question, expenditures from the Protect Our Water Fund are necessary to assure an effective corrective action; or

    (4) The owner or operator of the tank has failed or refused to comply with an order of the secretary under this article or of the Environmental Quality Board under article one, chapter twenty-two-b of this code to comply with appropriate corrective action measures ordered by the secretary or the Environmental Quality Board.

    (d) The secretary may draw upon the Protect Our Water Fund in order to take action under subdivision (1) or (2), subsection (c) of this section if the secretary has made diligent good-faith efforts to determine the identity of the owner or operator responsible for the release or threatened release and:

    (1) The secretary is unable to determine the identity of the owner or operator in a manner consistent with the need to take timely corrective action; or

    (2) The owner or operator determined by the secretary to be responsible for the release or threatened release has been informed in writing of the secretary’s determination and has been requested by the secretary to take appropriate corrective action but is unable or unwilling to take proper action in a timely manner.

    (e) The written notice to the owner or operator must inform the owner or operator that if it is subsequently found liable for releases pursuant to this section, the owner or operator will be required to reimburse the Protect Our Water Fund for the costs of the investigation, information gathering, and corrective action taken by the secretary.

    (f) If the secretary determines that immediate response to an imminent threat to human health, safety, water resources or the environment is necessary to avoid substantial injury or damage thereto, corrective action may be taken pursuant to this section without the prior written notice required by subdivision (2), subsection (d) of this section. In that case, the secretary must give subsequent written notice to the owner or operator within fifteen days after the action is taken describing the circumstances that required the action to be taken and setting forth the matters identified in subsection (e) of this section.

§22-30-9. Spill prevention response plan.

    (a) Within 180 days of the effective date of this article, each owner or operator of an aboveground storage tank shall submit a spill prevention response plan for each aboveground storage tank. Owners and operators of aboveground storage tanks shall file updated plans required to be submitted by this section no less frequently than every three years. Each plan shall be site-specific, consistent with the requirements of this article, and developed in consultation with Bureau for Public Health, county and municipal emergency management agencies. The spill prevention response plan shall at a minimum:

    (1) Identify and describe the activity that occurs at the site and identify applicable hazard and process information, including a specific listing and inventory of all types of fluids stored, amount of fluids stored, and wastes generated that are stored in aboveground storage tanks at the facility. The plan shall include the material safety data sheets (MSDS) required by the Occupational Safety and Health Administration for all fluids in use or stored in aboveground storage tanks at the facility. The material safety data sheets must include the health hazard number identified by the National Fire Protection Association. The plan shall also include drawings of the aboveground storage tank facility, including the locations of all drainage pipes and water outlets;

    (2) Identify all facility-related positions with duties and responsibilities for developing, implementing and maintaining the facility’s plan. The plan shall describe in detail the chain of command at the aboveground storage tank facility and list all facility emergency coordinators and all known emergency response contractors;

    (3) Provide a preventive maintenance program that includes monitoring and inspection procedures, including identification of stress points, employee training programs and security systems. The plan shall include a description of potential sources and areas where spills and leaks may occur by drawings and plot plans and shall identify specific spill prevention measures for those identified areas;

    (4) Detail the specific response that the aboveground storage tank facility and contract emergency personnel shall take upon the occurrence of any release of fluids from an aboveground storage tank at the facility;

    (5) Provide contact information obtained by the owner or operator of the aboveground storage tanks from the county and municipal emergency management agencies and the nearest downstream public water supply intake, and designate the person or persons to be notified in the event of a release from an aboveground storage tank; and

    (6) Provide the secretary with all other requested information.

    (b) Each owner of an aboveground storage tank with an approved spill prevention response plan shall submit to the secretary a revised plan or addendum to the plan in accordance with the requirements of this article if any of the following occur:

    (1) There is a substantial modification in design, construction, operation or maintenance of any aboveground storage tank or associated equipment, or there are other circumstances that increase the potential for fires, explosions or releases of fluids;

    (2) There is a substantial modification in emergency equipment at the facility;

    (3) There are substantial changes in emergency response protocols at the aboveground storage tank facility;

    (4) The plan fails in an emergency;

    (5) The removal or the addition of any aboveground storage tank; or

    (6) Other circumstances occur about which the secretary requests an update.

    (c) The secretary shall approve the spill prevention response plan or reject the plan and require modifications as may be necessary and reasonable to assure the protection of the source water of a public water system from a release of fluids from an aboveground storage tank. If rejected, the owner of the aboveground storage tank shall submit a revised plan to the secretary for approval within thirty days of receipt of notification of the secretary’s decision. Failure to comply with a plan approved by the secretary pursuant to this section is a violation of this article.

    (d) Nothing contained in this section relieves the owner or operator of an aboveground storage tank from his or her obligation to report any release immediately to the department’s emergency notification telephone number.

§22-30-10. Notice to local governments and water companies.

    The owner or operator of an aboveground storage tank facility shall provide as required by the secretary public notice to any public water system where the facility is located within the system’s identified groundwater supply’s Source Water Protection Area or within the system’s surface water supply’s Zone of Critical Protection, to the local municipality, if any, and to the county in which the facility is located. The notice shall provide a detailed inventory of the type and quantity of fluid stored in aboveground storage tanks at the facility and the material safety data sheets (MSDS) associated with the fluid in storage. The owner or operator shall also provide as required by the secretary a copy of the spill prevention response plan and any updates thereto, which have been approved by the secretary pursuant to this act, to the applicable public water systems and county and municipal emergency management agencies.

§22-30-11. Required signage.

    Every aboveground storage tank shall display the signage, if any, required by the Occupational Safety and Health Administration; the tank registration number, when issued by the secretary; and the emergency contact number for the owner or operator of the tank and the emergency contact number for the Department of Environmental Protection’s Spill Reporting Hotline. For the purposes of this section, the requirements for prominently posted signage shall be specified in the rules proposed for promulgation by the secretary pursuant to this article and article three, chapter twenty-nine-a of this code.

§22-30-12. Aboveground Storage Tank Administrative Fund.

    (a) The secretary shall collect annual registration fees from owners or operators of each aboveground storage tank in an amount to be promulgated in the legislative rules authorized by this article to be used by the secretary to defray the costs of administering this article: Provided, That for facilities covered by an individual National Pollutant Discharge Elimination System (NPDES) permit, a permit issued under Article 6 or 6A of this chapter or a Spill Prevention Control and Countermeasure plan, no separate registration fee or permit fee shall be assessed pursuant to this article. All registration and permit fees and the net proceeds of all fines, penalties and forfeitures collected under this article, including accrued interest, shall be paid into a special revenue account, hereby created within the State Treasury, designated the “Aboveground Storage Tank Administrative Fund.”

    (b) At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Aboveground Storage Tank Administrative Fund shall not be transferred to the general revenue fund, but shall remain in the Aboveground Storage Tank Administrative Fund for expenditure pursuant to this section.

§22-30-13. Protect Our Water Fund.

    (a) Each owner or operator of an aboveground storage tank located in this state shall pay an annual fee to establish a fund to assure adequate response to leaking aboveground storage tanks: Provided, That for facilities covered by an individual National Pollutant Discharge Elimination System (NPDES) permit, a permit issued under Article 6 or 6A of this chapter or a Spill Prevention Control and Countermeasure plan, no separate registration fee or permit fee shall be assessed pursuant to this article. The amount of fees assessed pursuant to this section shall be set forth by rule. The fees must be sufficient to cover the regulatory oversight and services to be provided by designated agencies, including necessary technical and administrative personnel. The proceeds of the assessment shall be paid into a special revenue account, hereby created within the State Treasury, designated the “Protect Our Water Fund.” The fund shall be administered by the secretary. Expenditures from the fund shall be solely to respond to leaking aboveground storage tanks, and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal years ending June 30, 2014 and 2015, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature. At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Protect Our Water Fund shall not be transferred to the general revenue fund, but shall remain in the Protect Our Water Fund for expenditure pursuant to this section.

    (b) Each owner or operator of an aboveground storage tank subject to a fee assessment under subsection (a) of this section shall pay a fee based on the number of aboveground storage tanks he or she owns or operates, as applicable. The secretary shall vary the fees annually to a level necessary to produce a sufficient fund at the beginning of each calendar year.

    (c) At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Protect Our Water Fund shall not be transferred to the General Revenue fund, but shall remain in the Protect Our Water Fund.

    (d) The secretary may enter into agreements and contracts and to expend the moneys in the fund for the following purposes:

    (1) Responding to aboveground storage tank releases when, based on readily available information, the secretary determines that immediate action is necessary to prevent or mitigate significant risk of harm to human health, safety, water resources or the environment from contamination caused by a release of fluid from aboveground storage tanks in situations for which no federal funds are immediately available for the response, cleanup or containment: Provided, That the secretary shall apply for and diligently pursue all available federal funds at the earliest possible time;

    (2) Reimbursing any nonresponsible parties for reasonable cleanup costs incurred with the authorization of the secretary in responding to an aboveground storage tank release; or

    (3) Reimbursing any nonresponsible parties for reasonable costs incurred with the authorization of the secretary responding to perceived, potential or threatened releases from aboveground storage tanks.

    (e) The secretary, through a cooperative agreement with another state regulatory agency, in this or another state, may use the fund to compensate the cooperating agency for expenses the cooperating agency incurs in carrying out regulatory responsibilities that agency may have pursuant to this article.

§22-30-14. Public access to information.

    (a) The public shall have access to all documents and information submitted to the agency, subject to the limitations contained in the state Freedom of Information Act, article one, chapter twenty-nine-b of this code. Records, reports or information obtained from any persons under this article may be disclosed to other officers, employees or authorized representatives of this state or federal agency implementing the provisions of this article or any other applicable law related to releases of fluid from aboveground storage tanks that impact the states water resources.    (b) A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management may be disclosed. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

§22-30-15. Inspections, monitoring and testing.

    (a) For the purposes of developing or assisting in the development of any rule, conducting any study, taking any corrective action or enforcing any provision of this article, any owner or operator of an aboveground storage tank shall, upon request of the secretary:

    (1) Furnish information relating to the aboveground storage tanks, their associated equipment and contents;

    (2) Conduct reasonable monitoring or testing;

    (3) Permit the secretary, at all reasonable times, to inspect and copy records relating to aboveground storage tanks; and

    (4) Permit the secretary to have access to the aboveground storage tanks for corrective action.

    (b) For the purposes of developing or assisting in the development of any rule, conducting any study, taking corrective action or enforcing any provision of this article, the secretary may:

    (1) Enter at any time any establishment or other place where an aboveground storage tank is located;

    (2) Inspect and obtain samples of any fluid contained in an aboveground storage tank from any person;

    (3) Conduct monitoring or testing of the aboveground storage tanks, associated equipment, contents or surrounding soils, surface, water or groundwater; and

    (4) Take corrective action as specified in this article.

    (c) Each inspection shall be commenced and completed with reasonable promptness.

    (d) To ensure protection of the water resources of the state and compliance with any provision of this article or rule promulgated thereunder, the secretary shall inspect at least annually any aboveground storage tank facility located within the Zone of Critical Concern of a public water system with a public surface water supply source or a public surface water influenced groundwater supply source.

§22-30-16. Administrative orders; injunctive relief.

    (a) When the secretary determines, on the basis of any information, that a person is in violation of any requirement of this article or the rules promulgated thereunder, the secretary may issue an order stating with reasonable specificity the nature of the violation and requiring compliance within a reasonable specified time period, or the secretary may commence a civil action in the circuit court of the county in which the violation occurred or in the circuit court of Kanawha County for appropriate relief, including a temporary or permanent injunction. The secretary may, except as provided in subsection (b) of this section, stay any order he or she issues upon application, until the order is reviewed by the Environmental Quality Board.

    (b) In addition to the powers and authority granted to the secretary by this chapter to enter into consent agreements, settlements, and otherwise enforce this chapter, the secretary shall propose rules for legislative approval to establish a mechanism for the administrative resolution of violations set forth in this article through consent order or agreement as an alternative to instituting a civil action.

§22-30-17. Civil and criminal penalties.

    (a) Any person who fails to comply with an order of the secretary issued under subsection (a), section sixteen of this article within the time specified in the order is liable for a civil penalty of not more than $25,000 for each day of continued noncompliance.

    (b) Any owner or operator of an aboveground storage tank who knowingly fails to register or obtain a permit required by this article for an aboveground storage tank or submits false information pursuant to this article is liable for a civil penalty not to exceed $10,000 for each aboveground storage tank that is not registered or permitted or for which false information is submitted.

    (c) Any owner or operator of an aboveground storage tank who fails to comply with any requirement of this article or any standard promulgated by the secretary pursuant to this article is subject to a civil penalty not to exceed $10,000 for each day of violation.

    (d) Any person who knowingly and intentionally violates any provision of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in a regional jail for a period of time not exceeding one year, and be fined an amount not to exceed $25,000.

    (e) Any person convicted of a second or subsequent willful violation of subsection (d) of this section or knowingly and willfully violates any provision of any permit, rule or order issued under or subject to the provisions of this article is guilty of a felony and, upon conviction, shall be imprisoned in a correctional facility not less than one nor more than three years, or fined not more than $50,000 for each day of violation, or both fined and imprisoned.

    (f) Any person may be prosecuted and convicted under the provisions of this section notwithstanding that none of the administrative remedies provided in this article have been pursued or invoked against said person and notwithstanding that civil action for the imposition and collection of a civil penalty or an application for an injunction under the provisions of this article has not been filed against such person.

    (g) Where a person holding a permit is carrying out a program of pollution abatement or remedial action in compliance with the conditions and terms of the permit, the person is not subject to criminal prosecution for pollution recognized and authorized by the permit.

    (h) Civil penalties are payable to the secretary. All moneys collected under this section for civil fines collected under this article shall be deposited into a restricted account known as the “Protect Our Water Fund.” All money deposited into this account shall be used by the secretary to solely to respond to leaking aboveground storage tanks.

§22-30-18. Appeal to Environmental Quality Board.

    Any person aggrieved or adversely affected by an order of the secretary made and entered in accordance with the provisions of this article may appeal to the Environmental Quality Board, pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-30-19. Duplicative enforcement prohibited.

    No enforcement proceeding brought pursuant to this article may be duplicated by an enforcement proceeding subsequently commenced under some other article of this code with respect to the same transaction or event, unless the subsequent proceeding involves the violation of a permit or permitting requirement of other article.

§22-30-20. Reporting and accountability.

    (a) Every year, the secretary shall submit a report to the Joint Legislative Oversight Commission on State Water Resources and the Joint Committee on Government and Finance which assesses the effectiveness of this article and provides other information as may be requested by the commission to allow it to assess the effectiveness of this article, including without limitation the secretary’s observations concerning all aspects of compliance with this article and any legislative rules promulgated pursuant hereto, the regulatory process, and any pertinent changes to federal rules or regulations.

    (b) The secretary shall keep accurate accounts of all receipts and disbursements related to the administration of the Aboveground Storage Tank Administrative Fund and shall make a detailed annual report to the Joint Legislative Oversight Commission on State Water Resources and the Joint Committee on Government and Finance addressing the administration of the fund.

    (c) The secretary shall keep accurate accounts of all receipts and disbursements related to the administration of the Protect Our Water Fund and shall make a specific annual report to the Joint Legislative Oversight Commission on State Water Resources and the Joint Committee on Government and Finance addressing the administration of the fund.

§22-30-21. Interagency cooperation.

    (a) In implementation of this article, the secretary shall coordinate with the Department of Health and Human Resources, the West Virginia Public Service Commission, the Division of Homeland Security and Emergency Management and local health departments to ensure the successful planning and implementation of this act, including consideration of the role of those agencies in providing services to owners and operators of aboveground storage tanks and public water systems.

    (b) The secretary shall also coordinate with state and local emergency response agencies to prepare and issue appropriate emergency response plans to facilitate a coordinated emergency response and incident command and communication between the owner or operator of the aboveground storage tank, the state and local emergency response agencies and the affected public water system.

    (c) The secretary shall also coordinate with the State Fire Marshal in addressing the periodic inspection of local fire departments to include a requirement for inspectors to examine and identify the status of National Incident Management System fire department personnel training.

§22-30-22. Imminent and substantial danger.

    (a) Notwithstanding any other provision of this chapter to the contrary, upon receipt of evidence that an aboveground storage tank may present an imminent and substantial danger to human health, water resources or the environment, the secretary may bring suit on behalf of the State of West Virginia in the Circuit Court of Kanawha County against any owner or operator of an aboveground storage tank who has contributed or who is contributing to imminent and substantial danger to public health, safety, water resources or the environment to order the person to take action as may be necessary to abate the situation and protect human health, safety, water resources and the environment from contamination caused by a release of fluid from an aboveground storage tank.

    (b) Upon receipt of information that there is any aboveground storage tank that presents an imminent and substantial danger to human health, safety, water resources or the environment, the secretary shall provide immediate notice to the appropriate state and local government agencies and any affected public water system. In addition, the secretary shall require notice of any danger to be promptly posted at the aboveground storage tank facility containing the aboveground storage tank at issue.

§22-30-23. Promulgation of rules.

    The secretary shall promulgate emergency and legislative rules as necessary to implement the provisions of this article in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§22-30-24. Powers and duties of secretary.

    (a) In addition to the powers and duties prescribed in this chapter or otherwise provided by law, the secretary has the exclusive authority to perform all acts necessary to implement this article.

    (b) The secretary may receive and expend money from the federal government or any other sources to implement this article.

    (c) The secretary may revoke any registration, authorization or permit for a violation of this article or the rules promulgated hereunder

    (d) The secretary may issue orders, assess civil penalties, institute enforcement proceedings and prosecute violations of this article as necessary.

    (e) The secretary, in accordance with this article, may order corrective action to be undertaken, take corrective action or authorize a third party to take corrective action.

    (f) The secretary may recover the costs of taking corrective action, including costs associated with authorizing third parties to perform corrective action. Costs may not include routine inspection and administrative activities not associated with a release.

§22-30-25. Scope of article; waiving additional permitting requirements for certain categories of aboveground storage tanks; establishing a process for granting waivers for additional categories of ground storage tanks, by legislative rule, upon verification that the category of tanks are regulated under comparable or more rigorous protective state or federal standards.

    (a) While all aboveground storage tanks shall be required to participate in the inventory and registration process set forth in section four of this article, the following categories of containers and tanks shall not be required to be permitted under section five of this article, either because they do not represent a substantial threat of contamination, or they are currently regulated under standards which meet or exceed the protective standards and requirements set forth in this article:

    (1) An aboveground storage tank containing drinking water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purposes;

    (2) Any natural gas or propane tanks regulated under NFPA 58-30A or NFPA 58-30B;

    (3) Septic tanks and home aeration systems;

    (4) A pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979, or an intrastate pipeline facility regulated by the West Virginia Public Service Commission or otherwise regulated under any state law comparable to the provisions of either the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979;

    (5) Equipment or machinery containing substances for operational purposes, including integral hydraulic lift tanks, lubricating oil reservoirs for pumps and motors, electrical equipment and heating and cooling equipment;

    (6) A mobile tank, truck or rail car that is located on a site for less than sixty consecutive calendar days;

    (7) Liquid traps or associated gathering lines related to oil or gas production and gathering operations;

    (8) A surface impoundment, pit, pond or lagoon;

    (9) Above ground storage tanks for which spill prevention, control, and countermeasure plans are required by the Environmental Protection Agency (EPA) under 40 CFR part 112 [oil pollution prevention], unless located within a zone of critical protection.

    (b) The Department of Environmental Protection may designate, by legislative rule, additional categories of aboveground storage tanks which for which an individual aboveground storage tank permit may be waived, after confirming that the tank is regulated under an existing state or federal regulatory permit or enforceable standard which includes, but is not limited to, the following:

    (1) Secondary containment with an impermeable base, which is sufficient to fully contain the contents of the tank or the contents of the largest tank in the group of tanks in the event of a leak from spilling out onto the ground or adjacent surface water;

    (2) Spill prevention, leak detection and control and inspection requirements which meet or exceed the standards established by the article or by rules promulgated thereunder;

    (3) Regular inspections and routine integrity testing requirements which are equally protective to the requirements established pursuant to this article or any rules promulgated thereunder; and

    (4) Emergency response and notification requirements which are at least as prompt and comprehensive as the emergency response and notification requirements established by this article or any rules promulgated thereunder.

    (c) In lieu of requiring a separate permit issued under this section, the secretary may adopt rules that would allow the requirements of this article to be incorporated into, and enforced through, the state-only portion of a National Pollutant Discharge Elimination System (NPDES) permit or a permit under Article 6 or 6A of this chapter.

    (d) If the aboveground storage tank or tanks’ location is to be regulated pursuant to a general NPDES permit or an individual NPDES permit, the secondary containment, spill prevention, leak detection and control requirements, inspection requirements, reporting requirements and routine integrity testing requirements for that tank or tanks are to be specifically set forth as enforceable permit conditions and requirements. 

ARTICLE 31. THE PUBLIC WATER SUPPLY PROTECTION ACT.

§22-31-1. Short title.

    This article may be known and cited as the Public Water Supply Protection Act.

§22-31-2. Legislative findings.

    (a) The West Virginia Legislature finds that it is in the public policy of the State of West Virginia to protect and conserve the water resources which are relied upon by the state and its citizens. The state’s water resources are vital natural resources that are essential to maintain, preserve and promote human health, quality of life and economic vitality of the state.

    (b) The West Virginia Legislature further finds that it is the public policy of the state that clean, uncontaminated water be available for its citizens who are dependent on clean water as a basic need for survival, and who rely on the assurances from public water systems and the government that the water is safe to consume.

    (c) The West Virginia Legislature further finds that it is the public policy of the state that clean, uncontaminated water be available to its businesses and industries that rely on water for their economic survival, and the wellbeing of their employees. These include hospitals and the medical industry, schools and educational institutions, the food and hospitality industries, the tourism industry, manufacturing, coal, natural gas and other industries. Businesses and industries searching for places to locate or relocate consider the quality of life for their employees as well as the quality of the raw materials such as clean water.

    (d) The Legislature further finds that large quantities of fluids are stored in aboveground storage tanks, below ground storage tanks, in impoundments and other locations which pose a threat of potential contamination to surface waters and groundwaters which are relied upon as primary sources of public water supplies in the state. Emergency situations involving these fluids can and will arise that may present a hazard to human health, safety, the water resources, the environment and the economy of the state.

    (e) It is important that the public water systems, the responding emergency providers and regulatory inspectors and personnel require complete and accurate information regarding the volume, identity, characteristics and qualities of each potential source of significant contamination to efficiently and accurately anticipate and respond to any associated threat to the public posed by a leak or spill event.

    (f) The Legislature also finds it reasonable and appropriate to impose additional regulatory oversight and reporting requirements for potential contaminants which are in close proximity to a public water intake, due to the sudden and devastating impact that potential contaminants in that zone pose to a public water’s system’s critical source of supply.

§22-31-3. Definitions.

    For the purposes of this article:

    (1) “Potential source of significant contamination” means a facility or activity that store, uses or produces compounds with potential for significant contaminating impact if released into the source water of a public water supply.

    (2) “Public water system” means;

    (A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:

    (i) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

    (ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system.

    (B) A public water system does not include a system which meets all of the following conditions:

    (i) Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

    (ii) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

    (iii) Does not sell water to any person; and

    (iv) Is not a carrier conveying passengers in interstate commerce.

    (4) “Public groundwater supply source” means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine or other primary source of water supplies which is found underneath the surface of the state.

    (5) “Public surface water supply source” means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or other primary sources of water supplies which are found on the surface of the state.

    (6) “Public surface water influenced groundwater supply source” means a source of water supply from a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir or underground mine, and the quantity and quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area.

    (7) “Zone of Critical Concern” for a public surface water supply is a corridor along streams within a watershed that warrant more detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The Zone of Critical Concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the Zone of Critical Concern is based on a five-hour time of travel of water in the streams to the water intake, plus an additional 1/4 mile below the water intake. The width of the Zone of Critical Concern is 1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

§22-31-4. Inventory of potential sources of significant contamination in a Zone of Critical Concern; registration; permitting; and notice.

    (a) To assure protection of the water resources of the state, the secretary, working in collaboration with the Bureau of Public Health and the Division of Homeland Security and Emergency Management, shall compile an inventory of all potential sources of significant contamination contained within a public water system’s Zone of Critical Concern for all public water systems whose source of supply is obtained from a surface water supply source or a surface water influenced groundwater supply source.

    (b) If the secretary shall determine that a designated potential significant source of contamination is not currently permitted and subject to regulation by the secretary under one or more articles of this chapter, and the secretary determines that the public interest in protecting the public drinking waters of the state warrant additional regulation and inspection of the site to protect the public interests, the secretary may require the owner and operator of that facility to register and obtain a permit for its location pursuant to the provisions of this article.

    (c) Within sixty days of the date receiving notice from the secretary of the facility’s obligation to register pursuant to this article, the owner or operator shall register the location pursuant to the provisions of this section.

    (d) The secretary shall prescribe a registration form for this purpose within thirty days of the effective date of the enactment of this article. Any potential significant sources of contamination within a public water system’s defined Zone of Critical Concern which are required to register with the Department of Environmental Protection pursuant to this section shall do so within sixty days from the receiving notice of their obligation to register.

    (e) Any potential source of significant contamination placed into service on and after the effective date of this section, but prior to the establishment of a permit program, may be required to register by the secretary at any time.

    (f) The secretary may charge a reasonable fee to cover the cost of the registration and permitting program. The fee may be set by emergency and legislative rules proposed for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That for facilities covered by an individual National Pollutant Discharge Elimination System (NPDES) permit, a permit issued under Article 6 or 6A of this chapter or a Spill Prevention Control and Countermeasure plan, no separate registration fee or permit fee shall be assessed pursuant to this article.

§22-31-5. Promulgation of rules.

    The secretary shall promulgate emergency and legislative rules as necessary to implement the provisions of this article in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§22-31-6. Powers and duties of secretary.

    (a) In addition to the powers and duties prescribed in this chapter or otherwise provided by law, the secretary has the exclusive authority to perform all acts necessary to implement this article.

    (b) The secretary is authorized to utilize his or her authority under the West Virginia Water Pollution Control Act to require appropriate permitting and any other conditions or limitations to assure protection of water intakes in zones of critical concern.

    (c) The secretary may receive and expend money from the federal government or any other sources to implement this article.

    (d) The secretary may revoke any registration, authorization or permit for a violation of this article or the rules promulgated hereunder.

    (e) The secretary may issue orders, assess civil penalties, institute enforcement proceedings and prosecute violations of this article as necessary.

    (f) The secretary, in accordance with this article, may order corrective action to be undertaken, take corrective action or authorize a third party to take corrective action.

    (g) The secretary may recover the costs of taking corrective action, including costs associated with authorizing third parties to perform corrective action. Costs may not include routine inspection and administrative activities not associated with a release.

§22-31-7. Public access to information.

    (a) Subject to the exemptions listed in section four, article one, chapter twenty-nine-b of this code, the public shall have access to all documents and information submitted to the agency in accordance with this section pursuant to the state Freedom of Information Act. Records, reports or information obtained from any persons under this article may be disclosed to other officers, employees or authorized representatives of this state or the United States Environmental Protection Agency or of this state if the officers, employees or authorized representatives are implementing the provisions of this article or any other applicable law related to releases of contaminants tanks that impact the state’s water resources.

    (b) In submitting data under this article, a person required to provide the data may designate the data that he or she believes is entitled to protection under this section and may submit the designated data separately from other data submitted under this article. A designation under this subsection shall be made in writing and in a manner as the secretary may prescribe.

    (c) The Department of Environmental Protection shall provide a copy of the compiled list of contaminants in each Zone of Critical Concern to the affected public water system, the Bureau for Public Health, the Department of Environmental Protection and the Division of Homeland Security and Emergency Management. This will enable those entities to possess a compiled list of the types, quantities, characteristics and locations of all of the known potential contaminants within the Zone of Critical Concern for each public water supply. If any of the submitted information is requested to be kept confidential and good cause is found to grant the request, for reasons of security or other legitimate public interest concern, the protected information shall be redacted from public view and kept confidential, and it shall not be subject to public release in response to a Freedom of Information Act request under made under chapter twenty-nine-b of this code.

§22-31-8. Inspections, monitoring and testing.

    (a) For the purposes of developing or assisting in the development of any rule, conducting any study, taking any corrective action or enforcing any provision of this article, any owner or operator of designated site of potential contamination within a Zone of Critical Concern shall, upon request of the secretary:

    (1) Furnish information relating to the site and potential contaminants on the site, their aboveground and underground storage tanks, their associated equipment and contents;

    (2) Conduct reasonable monitoring or testing;

    (3) Permit the secretary, at all reasonable times, to inspect and copy records relating to the facilities and equipment used to store or contain the potential contaminants; and

    (4) Permit the secretary to have access to the site for corrective action.

    (b) For the purposes of developing or assisting in the development of any rule, conducting any study, taking corrective action or enforcing any provision of this article, the secretary may:

    (1) Enter at any time any establishment or other place where on the site or where the potential contaminant is located;

    (2) Inspect and obtain samples of any fluid contained or stored on the site from any person;

    (3) Conduct monitoring or testing of the site and any associated aboveground storage tanks, underground storage tanks, associated equipment, contents or surrounding soils, surface, water or groundwater; and

    (4) Take corrective action as specified in this article.

    (c) Each inspection shall be commenced and completed with reasonable promptness.

    (d) To ensure protection of the water resources of the state and compliance with any provision of this article or rule promulgated thereunder, the secretary shall inspect at least annually any designated site of potential contamination which is located within the Zone of Critical Concern for a public water system’s surface water intake.

    (e) Due to the potential impact of contaminants within a Zone of Critical Concern on public drinking water supplies, whenever there is an apparent spill of a chemical or substance within a zone of critical concern for a public water system, the Director of the Bureau for Public Health, and his or her representatives or designees, shall have the same right to enter, inspect and conduct sampling and monitoring at any site that is extended by this article to the Department of Environmental Protection.

§22-31-9. Prohibition of general NPDES permits within a Zone of Critical Concern for sites with aboveground storage tanks; and authorizing the Division of Environmental Protection to require individual NPDES permit for any other site when deemed appropriate.

    Because of the potential public health impact of pollution to downstream public water intakes in a watershed basin designated in an area of critical concern, on and after September 1, 2014, any permittee which presently holds a National Pollutant Discharge Elimination System (NPDES) general permit pursuant to the West Virginia Water Pollution Control Act which has an aboveground storage tank as defined by Article 30 of this Chapter on a site which is located within any public water system’s Zone of Critical Concern must apply for and hold an individual permit under that Act. The secretary shall also have the authority to require other holders of a general NPDES permit to obtain an individual NPDES permit, when deemed appropriate to protect the public water supply. Any general NPDES permit held currently under that act shall remain in effect until the individual NPDES permit is either issued or denied.

§22-31-10. Civil and criminal penalties.

    (a) Any person who fails to comply with an order of the secretary issued pursuant to this article the time specified in the order is liable for a civil penalty of not more than $25,000 for each day of continued noncompliance.

    (b) Any owner or operator of a site designated as a potential source of significant contamination within a Zone of Critical Concern above a public water intake who knowingly fails to register or obtain a permit for an aboveground storage tank or submits false information pursuant to this article is liable for a civil penalty not to exceed $10,000 for each aboveground storage tank that is not registered or permitted or for which false information is submitted.

    (c) Any owner or operator of a site designated as a potential source of significant contamination within a Zone of Critical Concern above a public water intake who fails to comply with any requirement of this article or any standard promulgated by the secretary pursuant to this article is subject to a civil penalty not to exceed $10,000 for each day of violation.

    (d) Any person who knowingly and intentionally violates any provision of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be confined in a regional jail for a period of time not exceeding one year, and be fined an amount not to exceed $25,000.

    (e) Any person convicted of a second or subsequent willful violation of subsections (b) or (c) of this section or knowingly and willfully violates any provision of any permit, rule or order issued under or subject to the provisions of this article is guilty of a felony and, upon conviction, shall be imprisoned in a correctional facility not less than one nor more than three years, or fined not more than $50,000 for each day of violation, or both fined and imprisoned.

    (f) Any person may be prosecuted and convicted under the provisions of this section notwithstanding that none of the administrative remedies provided in this article have been pursued or invoked against said person and notwithstanding that civil action for the imposition and collection of a civil penalty or an application for an injunction under the provisions of this article has not been filed against such person.

    (g) Where a person holding a permit is carrying out a program of pollution abatement or remedial action in compliance with the conditions and terms of the permit, the person is not subject to criminal prosecution for pollution recognized and authorized by the permit.

§22-31-11. Appeal to Environmental Quality Board.

    A person aggrieved or adversely affected by an order of the secretary made and entered in accordance with the provisions of this article may appeal to the Environmental Quality Board, pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-31-12. Public Water System Supply Study Commission.

    (a) There is hereby established the “Public Water System Supply Study Commission” which is created for the purpose of studying and reporting back to the Joint Committee on Government and Finance on the following subject matters:

    (1) A review and assessment of the effectiveness and the quality of information contained in updated source water protection plans required for certain public water systems by the provisions of section nine-c, article one, chapter sixteen of this code;

    (2) A review and assessment of the effectiveness of Legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to identified potential sources of significant contamination, and increasing public awareness and public participation in the emergency planning and response process;

    (3) The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply;

    (4) A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008; and    (5) Any recommendations or suggestions the Study Commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies, and to pursue other measures designed to protect the integrity of public water service.

    (b) The study commission shall consist of the following twelve members, who shall be appointed and comprised as follows:

    (1) Four members appointed by the Governor, one of whom shall be a professional engineer experienced in the design and construction of public water systems; one of whom shall be a hydrologist or other expert experienced in determining the flow characteristics of rivers and streams; one of whom shall be an environmental toxicologist or other public health expert who is familiar the impact of contaminants on the human body; and one citizen representative;

    (2) One representative designated by the Rural Water Association;

    (3) One representative designated by the Municipal League;

    (4) The Secretary of the Department of Environmental Protection or his or her designee;

    (5) The Commissioner of the Bureau for Public Health or his or her designee;

    (6) The Director of the Division of Homeland Security and Emergency Management or his or her designee;

    (7) The Chairman of the Public Service Commission or his or her designee;

    (8) One nonvoting member appointed by the President of the Senate; and

    (9) One nonvoting member appointed by the Speaker of the House of Delegates.

    (c) Reports by the Commission shall be submitted to the Joint Committee on Government and Finance on or before December 15 of each year, beginning December 15, 2014.

CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 2G. PUBLIC WATER UTILITIES MONITORING REQUIREMENTS.

§24-2G-1. Public water utilities required to install monitor for contaminants.

    All public water utilities that provide water to more than 100,000 customers, including public service districts providing water service and municipally owned and operated utilities, subject to the requirements and limitations of this article, shall implement a regular monitoring system as specified to the same technical capabilities for detection as utilized by the Ohio River Valley Water Sanitation Commission.

§24-2G-2. Requirements.

    (a) Each public water utility, public service district or municipal water system, as set forth in section one of this article, shall provide testing for contamination of its water supply by the following contaminants:

    (1) Salts or ions;

    (2) Metals, including heavy metals;

    (3) Polar organic compounds;

    (4) Nonpolar organic compounds;

    (5) Volatile compounds, oils and other hydrocarbons;

    (6) Pesticides; and

    (7) Biotoxins.

    (B) Each public water utility is empowered to determine at its discretion which of the contaminants listed in subsection (a) are most likely to contaminate its water supply, and shall provide a monitoring system which shall detect the three of the listed contaminants deemed most likely to affect that water system: Provided, That each public water utility shall file its list with the commission: Provided, however, That any public water system serving over one hundred thousand customers from any one treatment plant is requested to test for all listed contaminants at each treatment plant: Provided further, That if technology to adequately detect contaminants, as required by this section proves to be not feasible to implement, the public water utility shall report by January 1, 2015, such to the Joint Committee on Government and Finance with the reasons why such technology is not feasible to obtain or use, and suggest alternatives.;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Com. Sub for Com. Sub for Senate Bill No. 373--A Bill to amend and reenact §16-1-2 and §16-1-9a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §16-1-9c and §16-1-9d; to amend and reenact §22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8 of said code; to amend said code by adding thereto a new article, designated §22-30-1, §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, §22-30-20, §22-30-21, §22-30-22, §22-30-23, §22-30-24, and §22-30-25; and to amend said code by adding thereto a new article, designated §22-31-1, §22-31-2, §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, all relating to the protection of water resources generally; providing for the regulation of the public water systems by the commissioner of the bureau for public health; requiring legislative rules therefore; modifying definitions; providing for entry and evaluations of water systems; providing civil penalties; authorizing commissioner to seek injunctive relief; requiring public water utilities to provide source water protection plans to the commissioner; specifying contents of plan; requiring assessment and monitoring of plans; continuing wellhead and source water protection grant program and fund to provide water source protection; revising the water resources protection and management act; modifying definitions; requiring state to protect waters; modifying registration requirements; requiring reports to the secretary of the department of environmental protection; requiring reports by secretary to legislative entities; requiring continuation of providing matching funds for stream-gauging network; modifying duties of legislative commission; requiring water resources survey and registry; information required from drilling contractors for water systems; adopting state water resources management plan; requiring reports from water users; establishing the aboveground storage tank act; requiring the secretary to compile inventory of aboveground storage tanks in the state; requiring registration and authorizing registration fee; requiring secretary to develop regulatory program for the tanks; providing minimum factors to be included in program and authorizing fees; requiring annual inspection and certification of the tanks; requiring evidence of financial security; requiring correction action and plans to address contamination of water caused by release of fluids from the tanks; requiring spill prevention response plans for the tanks; requiring notice of inventory of tanks to local water systems and governments; requiring the posting of signs at the tanks; creating an administrative fund and a fund to respond to leaking tanks; authorizing public access to information; authorizing inspections, monitoring and testing by secretary; authorizing secretary to issue administrative orders and seek injunctive relief; providing civil and criminal penalties; allowing appeals to environmental quality board; prohibiting duplicative enforcement; requiring secretary to report to legislative entities; requiring interagency coordination; duties of secretary upon imminent and substantial danger; providing additional duties and powers of secretary; providing categories of tanks not required to be permitted under the act; creating the public water supply protection act; requiring inventories of sources of certain contaminants in the zones of critical concern of certain public water systems; requiring registration and permits; providing additional duties and powers of secretary; authorizing public access to information; authorizing inspections, monitoring and testing by secretary; authorizing secretary to require NPDES permits in certain circumstances; providing civil and criminal penalties; allowing appeals to environmental quality board; and creating public water system supply study commission.

    On motion of Senator Unger, the following amendments to the House of Delegates amendments to the bill were reported by the Clerk and considered simultaneously:

    On page forty-six, section four, subsection (f), by changing the colon to a period and striking out the remainder of the sentence;

    On page sixty, section twelve, subsection (a), by changing the colon to a period and striking out the remainder of the sentence;

    On page sixty-one, section thirteen, subsection (a), by changing the colon to a period and striking out the remainder of the sentence;

    By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:

    That §16-1-2 and §16-1-9a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto three new sections §16-1-9c, §16-1-9d and §16-1-9e; that §22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §22-30-1, §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, §22-30-20, §22-30-21, §22-30-22, §22-30-23, §22-30-24 and §22-30-25; and that said code be amended and reenacted by adding thereto a new article, designated §22-31-1, §22-31-2, §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; and that said code be amended and reenacted by adding thereto a new article, designated §24-2G-1 and §24-2G-2, all to read as follows:;

    And,

    By striking out the title and substituting therefor a new title, to read as follows:

    Eng. Com. Sub. for Com. Sub. for Senate Bill No. 373--A Bill to amend and reenact §16-1-2 and §16-1-9a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto three new sections, designated §16-1-9c, §16-1-9d and §16-1-9e; to amend and reenact §22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8 of said code; to amend said code by adding thereto a new article, designated §22-30-1, §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, §22-30-20, §22-30-21, §22-30-22, §22-30-23, §22-30-24, and §22-30-25; and to amend said code by adding thereto a new article, designated §22-31-1, §22-31-2, §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; and to amend said code all by adding thereto a new article, designated §24-2G-1 and §24-2G-2, all relating to the protection of water resources and public health generally; defining terms generally; providing for rulemaking generally; providing for civil and criminal penalties generally; providing for the regulation of the public water systems by the Commissioner of the Bureau for Public Health; providing for entry into and evaluations of water systems; authorizing commissioner to seek injunctive relief; requiring source water protection plans; specifying contents of plan; requiring assessment and monitoring of plans; requiring Bureau of Public Health to coordinate the conduct of a long-term medical study; continuing wellhead and source water protection grant program; continuing grant fund to provide water source protection; revising the Water Resources Protection and Management Act; modifying registration requirements; requiring reports to the Secretary of the Department of Environmental Protection; requiring reports by secretary to legislative entities; requiring continuation of matching funds for stream-gauging network; modifying duties of legislative commission; requiring water resources survey and registry; requiring information drilling contractors for water systems; adopting state water resources management plan; requiring reports from certain water users; establishing the Aboveground Storage Tank Act; requiring the secretary to compile inventory of aboveground storage tanks in the state; requiring registration; authorizing certain fees; requiring secretary to develop regulatory program for the tanks; providing minimum factors to be included in program; requiring annual inspection and certification of the tanks; requiring evidence of financial security; requiring corrective action and plans; requiring spill prevention response plans; requiring notice of inventory of tanks to local water systems and governments; requiring the posting of signs at the tanks; creating an administrative fund; creating the 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; 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 certain exemptions; creating the public water supply protection act; requiring inventories of sources of certain contaminants in the zones of critical concern of certain public water systems; requiring registration and permits; authorizing inspections, monitoring and testing by secretary; requiring individual NPDES permits in certain circumstances; authorizing secretary to require NPDES permits in certain circumstances; creating public water system supply study commission; 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 the Public Water Commission; and requiring utility to report back to Legislature if technology is infeasible.

    Following discussion,

    The question being on the adoption of Senator Unger’s amendments to the House of Delegates amendments to the bill, the same was put and prevailed.

    On motion of Senator Unger, the Senate concurred in the House of Delegates amendments, as amended.

    Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 373, as amended, was then put upon its passage.

    On the passage of the bill, the yeas were: Barnes, Beach, Blair, Boley, Cann, Carmichael, Chafin, Cole, Cookman, Edgell, Facemire, Fitzsimmons, Green, D. Hall, M. Hall, Jenkins, Kirkendoll, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Walters, Wells, Williams, Yost and Kessler (Mr. President)--34.

    The nays were: None.

    Absent: None.

    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 Com. Sub. for S. B. No. 373) passed with its Senate amended title.

    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 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. 477, Providing teachers determine use of time during planning period.

    On motion of Senator Unger, 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:

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

ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.

§18A-4-14. Duty-free lunch and daily planning period for certain employees.

    (a) Notwithstanding the provisions of section seven, article two of this chapter, every teacher who is employed for a period of time more than one half the class periods of the regular school day and every service person whose employment is for a period of more than three and one-half hours per day and whose pay is at least the amount indicated in the state minimum pay scale as set forth in section eight-a of this article shall be provided a daily lunch recess of not less than thirty consecutive minutes, and the employee shall not be assigned any responsibilities during this recess. The recess shall be included in the number of hours worked, and no county shall increase the number of hours to be worked by an employee as a result of the employee being granted a recess under the provisions of this section.

    (b) Every teacher who is regularly employed for a period of time more than one half the class periods of the regular school day shall be provided at least one planning period within each school instructional day to be used to complete necessary preparations for the instruction of pupils. No teacher may be assigned any responsibilities during this period, and no county shall increase the number of hours to be worked by a teacher as a result of such teacher being granted a planning period subsequent to the adoption of this section (March 13, 1982). The use of the entire period of time allotted for a planning period is determined by the teacher. This does not prohibit any teacher from participating in school related activities or conducting school related meetings during a planning period at his or her discretion. Administrators may not require a teacher to attend meetings, training or any other work related event during a planning period. A planning period begins once students are physically delivered to another teacher or dismissed from a class.

    The duration of the planning period shall be in accordance with the following:

    (1) For grades where the majority of the student instruction is delivered by only one teacher, the planning period shall be no less than forty minutes; and

    (2) For grades where students take separate courses during at least four separate periods of instruction, most usually delivered by different teachers for each subject, the planning period shall be the length of the usual class period taught by the teacher, but no less than forty minutes. Principals, and assistant principals, where applicable, shall cooperate in carrying out the provisions of this subsection, including, but not limited to, assuming control of the class period or supervision of students during the time the teacher is engaged in the planning period. Substitute teachers may also be utilized to assist with classroom responsibilities under this subsection: Provided, That any substitute teacher who is employed to teach a minimum of two consecutive days in the same position shall be granted a planning period pursuant to this section.

    (c) Nothing in this section prevents any teacher from exchanging his or her lunch recess or a planning period or any service person from exchanging his or her lunch recess for any compensation or benefit mutually agreed upon by the employee and the county superintendent or his or her agent: Provided, That a teacher and the superintendent or his or her agent may not agree to terms which are different from those available to any other teacher granted rights under this section within the individual school or to terms which in any way discriminate among those teachers within the individual school, and a service person granted rights under this section and the superintendent or his or her agent may not agree to terms which are different from those available to any other service personnel within the same classification category granted rights under this section within the individual school or to terms which in any way discriminate among those service personnel within the same classification category within the individual school.