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sdj-14th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2010

FOURTEENTH DAY

____________

Charleston, W. Va., Tuesday, January 26, 2010

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

Prayer was offered by the Reverend Father Leon Alexander, St. Francis de Sales Catholic Church, Morgantown, West Virginia.
Pending the reading of the Journal of Monday, January 25, 2010,
On motion of Senator Bowman, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Clerk presented a communication from the Department of Environmental Protection, submitting its annual Special Reclamation Fund Advisory Council report, in accordance with chapter twenty- two, article one, section seventeen of the code of West Virginia.
Which report was received and filed with the Clerk.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4026--A Bill to repeal §18-23-1, §18-23-2, §18-23-3, §18-23-4, §18-23-5, §18-23-13, §18-23-14, §18-23-15, §18- 23-18, §18-23-22, §18-23-23 and §18-23-24 of the Code of West Virginia, 1931, as amended; to repeal §18B-14-1, §18B-14-2, §18B- 14-3, §18B-14-4, §18B-14-5, §18B-14-5a, §18B-14-6 and §18B-14-7 of said code; to amend and reenact §5-6-4a of said code; to amend and reenact §18B-1B-4 of said code; to amend and reenact §18B-2A-4 of said code; to amend and reenact §18B-2B-6 of said code; to amend and reenact §18B-4-6 of said code; to amend and reenact §18B-5-4 of said code; to amend and reenact §18B-10-8 of said code; and to amend said code by adding thereto a new article, designated §18B- 19-1, §18B-19-2, §18B-19-3, §18B-19-4, §18B-19-5, §18B-19-6, §18B- 19-7, §18B-19-8, §18B-19-9, §18B-19-10, §18B-19-11, §18B-19-12, §18B-19-13, §18B-19-14, §18B-19-15, §18B-19-16, §18B-19-17 and §18B-19-18, all relating to higher education capital facilities generally; repealing certain specific duties of governing boards of higher education institutions; eliminating condemnation rights of those boards; eliminating execution of contracts and deeds by those boards; eliminating certain obligation concerning capital construction and repair duties; eliminating the authority of certain state institutions from selling certain properties and lease back provisions; replacing those duties that are being repealed with similar responsibilities; setting forth certain specific responsibilities of the Higher Education Policy Commission and the Council for Community and Technical College Education; reviewing tuition and fee increases; reviewing and approving of capital project planning, financing, management and maintenance; permitting the acquisition, sale, transfer, exchange, lease, conveyance and condemnation of real property; permitting the construction and operation of capital facilities; permitting the collection and use of certain capital fees; establishing in the State Treasury a capital maintenance fund for each state institution of higher education; setting forth legislative findings and intent; defining terms; requiring rulemaking; and providing for system facilities institution and facilities planning.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4040--A Bill to amend and reenact §18-5-45 of the Code of West Virginia, 1931, as amended, relating to requiring county boards to adopt contingency plans designed to guarantee one hundred eighty separate days of instruction for students; authorizing county boards of education to select the beginning date and ending date of the instructional term of the school calendar; and making technical corrections.
At the request of Senator Chafin, 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 Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (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. 4040) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (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. H. B. No. 4040) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
Eng. House Bill No. 4040, Requiring county boards to adopt contingency plans designed to guarantee one hundred eighty separate days of instruction for students.
Passed by the Senate immediately hereinbefore,
The bill still being in the possession of the Senate,
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (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. 4040) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence in the changed effective date.
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. 4138--A Bill to amend and reenact §30-23- 6, of the Code of West Virginia, 1931, as amended, relating to clarifying the authority of the Medical Imaging and Radiation Therapy Technology Board of Examiners to work with the Board of Medicine regarding the regulation of the practice of Radiologist Assistants.
Referred to the Committee on Government Organization.
The Senate proceeded to the fourth order of business.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 256, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to Teachers Retirement System.
Senate Bill No. 257, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to PERS.
Senate Bill No. 258, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to refund, reinstatement and loan interest factors.
And,
Senate Bill No. 259, Authorizing Consolidated Public Retirement Board promulgate legislative rule relating to State Police.
And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Senate Bill No. 331, Clarifying certain PERS and teachers' disability retirement qualifications.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senators Unger, Fanning, Jenkins and Plymale:
Senate Bill No. 347--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-15D-1, §31-15D-2, §31-15D-3, §31-15D-4, §31-15D-5, §31-15D-6, §31-15D-7, §31-15D-8, §31-15D-9 and §31-15D-10, all relating to establishment of the West Virginia Transportation Finance Commission; creating a governing board of the commission; setting forth appointment, terms, qualifications, compensation and expenses of board members; setting forth the powers and duties of the commission; creating the West Virginia Transportation Finance Commission Fund; setting forth requirements for deposits, contributions, appropriations, capitalization, disbursements, subaccounts, loans and other financial assistance from the fund; setting forth requirements for applications for loans and other financial assistance, approval of qualified projects, finance agreements, payments and repayments of loans and withholding of defaulted payments from funds allotted or payable to a defaulting government unit; setting forth the rights of qualified borrowers from the fund; requiring annual reports to the Governor, the Legislature and appropriate federal agencies; requiring the commission to perform annual audits; requiring the Department of Transportation to assist the board; making legislative findings; and defining terms.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Kessler, Foster, Barnes, Browning, Deem and Plymale:
Senate Bill No. 348--A Bill to amend and reenact §15-12-2 and §15-12-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §62-12-3 of said code, all relating to amending the community notification and disclosure provisions of the Sex Offender Registration Act; developing a risk assessment scale; establishing end-of-confinement review committees; determining risk of reoffending; defining risk levels; community notification for various risk levels; timing of notification; length of community notification; communicating the risk level determination; other information communicated to law enforcement; notice of an offender's release; reassessing the risk level determination; administrative review of risk level assessment; and offender request for reassessment of risk level.
Referred to the Committee on the Judiciary.
By Senators Palumbo, Browning, McCabe, Foster, Laird, Wells, Stollings and D. Facemire:
Senate Bill No. 349--A Bill to amend and reenact §49-2B-3 and §49-2B-8 of the Code of West Virginia, 1931, as amended, all relating to requiring licensed or registered child care centers to have a written plan for evacuation in the event of an emergency; and making it a point of investigation before a license is received.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Oliverio, McCabe, Browning, Green, Kessler, Foster, Stollings, D. Facemire, Prezioso, Plymale and Palumbo:
Senate Bill No. 350--A Bill to amend and reenact §24-2F-3 of the Code of West Virginia, 1931, as amended, relating to recategorizing recycled energy as a renewable energy resource for the purposes of purchasing energy resource credits.
Referred to the Committee on Economic Development; and then to the Committee on Finance.
By Senators Foster, Jenkins, Prezioso, Yost, Unger, Kessler, Stollings, Plymale and Palumbo:
Senate Bill No. 351--A Bill to amend and reenact §30-29-3 and §30-29-10 of the Code of West Virginia, 1931, as amended, all relating to mandatory antiracial profiling training for certain law-enforcement officers.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Unger, Fanning, Jenkins, Plymale, Foster, Stollings, D. Facemire and Prezioso:
Senate Bill No. 352--A Bill to amend and reenact §17-4-47 and §17-4-49 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §17-28-1, §17-28-2, §17-28-3, §17-28-4, §17-28-5, §17-28-6, §17-28-7, §17-28-8 and §17-28-9, all relating to the creation of the West Virginia Community Empowerment Transportation Act; authorizing the Commissioner of Highways to establish procedures relating to the authority and review of transportation projects; making legislative findings; stating legislative purpose; defining certain terms and phrases; requiring certain entities seeking state funds for transportation projects to submit a transportation project plan; setting forth transportation project plan requirements; setting forth conditions for approval by the Commissioner of Highways; authorizing county commissions to impose user fees for the construction and maintenance of roads and transportation projects; providing credit for municipally imposed fees; authorizing counties to issue revenue and general obligation bonds for transportation projects following voter approval; providing notice, advertisement and election requirements; coordinating development of transportation projects with other infrastructure projects; providing for a comprehensive agreement for a transportation facility between the sponsoring governmental entity and the Division of Highways; establishing the requirements for qualifying a transportation facility as a public improvement; authorizing information sharing; authorizing agreements among municipal utilities and public service districts to participate in transportation projects; authorizing setting of rates to include costs borne by municipal utilities and public service districts in coordination with transportation projects; providing exemption from Public Service Commission approval; requiring a bond covering the division for improvements to highway facilities required as a result of development; regulating access from properties to and from state roads; and providing recovery of cost of highway improvements from commercial and residential developments.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
Senators Tomblin (Mr. President) and Caruth (By Request of the Executive) offered the following resolution:
Senate Concurrent Resolution No. 9--Expressing the will of the Legislature to oppose the adoption of a national cap and trade program for carbon dioxide and greenhouse gas emissions that is unduly burdensome to the State of West Virginia and to support measures that encourage investments in technology to address carbon dioxide and greenhouse gas emissions, and requesting that West Virginia's congressional delegation resist and oppose efforts to adopt a national cap and trade program that is detrimental to our state.
Whereas, The adoption of a national cap and trade program for carbon dioxide and greenhouse gas emissions would have serious financial and economic implications for the State of West Virginia; and
Whereas, House Resolution 2454, the American Clean Energy and Security Act of 2009, hereinafter referred to as the Act, is pending approval in Congress; and
Whereas, The Act calls for the establishment of a national cap and trade program that, if effected, would reduce West Virginia's gross domestic product by an estimated $750 million by 2020 and by an estimated $1.75 billion by 2030; and
Whereas, West Virginia would lose up to 10,000 jobs by 2020 and up to 22,000 jobs by 2030 if the proposed cap and trade program is enacted; and
Whereas, The industries that would be most affected by the proposed cap and trade program include mining, retail trade and health care; and
Whereas, West Virginia is investing heavily in technology designed to limit carbon dioxide and greenhouse gas emissions, including a $100 million investment by American Electric Power in carbon sequestration and capture technology at its Mountaineer Plant in Mason County, a state-of-the-art facility that is the first of its kind in the world; and
Whereas, Globally, more coal is being used than ever, and demand is projected to rise to even greater levels as more coal- fired power plants are built in other countries; and
Whereas, Coal will continue to be a primary energy source to meet these additional demands and therefore the United States should lead the way in advancing cleaner coal technology; and
Whereas, Additional investments are needed to address carbon dioxide and greenhouse gas emissions while maintaining the current energy supply; and
Whereas, The Legislature, with the leadership and support of the Governor, enacted laws to reduce, within reasonable limits, carbon dioxide and greenhouse gas emissions in this state by adopting an alternative and renewable energy portfolio standard and a regulatory framework for carbon capture and sequestration projects; and
Whereas, For the sake of those individuals and families who depend upon the industries that would be affected by a national cap and trade program, the House of Delegates, the Senate, the Governor and West Virginia's congressional delegation must work together to ensure that any proposal to reduce carbon dioxide and greenhouse gas emissions includes reasonable provisions intended to safeguard the security of this nation and West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature of West Virginia is opposed to the adoption of a national cap and trade program for carbon dioxide and greenhouse gas emissions if it creates unnecessary volatility in the energy market, fails to address the energy and security needs of this country, threatens the jobs of hardworking men and women, raises energy costs to an unacceptable amount, fails to provide for additional investments in technology or is otherwise unduly burdensome to the State of West Virginia; and, be it
Further Resolved, That the Legislature of West Virginia supports measures that encourage investments in technology to address carbon dioxide and greenhouse gas emissions; and, be it
Further Resolved, That the Legislature of West Virginia requests that West Virginia's congressional delegation resist and oppose efforts to adopt a national cap and trade program that is detrimental to our state; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to United States Senators Robert C. Byrd and John D. Rockefeller IV and Representatives Nick J. Rahall, Alan B. Mollohan and Shelley M. Capito.
Which, under the rules, lies over one day.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 8, Requesting Joint Committee on Government and Finance study gubernatorial succession.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary; and then to the Committee on Rules.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Deem.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, January 27, 2010, at 11 a.m.
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