From the Well | March 6, 2021

Lead sponsor Del. Graves responded that the amendment to the amendment would drastically reduce the fiscal note, in her opinion. Asked by Sen. Weld if she had seen the amendment, Graves responded, “I had been asked what the key elements of 2581 are that should be captured.” Sen. Weld spoke in opposition to Sen. Rucker’s amendment, saying it is wholly unnecessary and confuses the issue.  Sen. Rucker’s amendment to the amendment failed by a vote of 8 yes, 9 no. “We are going to start over,” said the Chairman who was having difficulty getting a hand count on final passage of the bill. The amended bill did pass 11-6 but will also go to Finance.

Notably, the bill requires any coal-fired power plant owned by a public electric utility, in order to ensure grid resiliency and homeland security, maintain a minimum 30-day aggregate coal supply under contract for the remainder of the life of those plants.

Additionally, before any public electric utility announces the retirement, the proposed shutdown of a unit, or the proposed sale of and electricity-generating plant to another operator, the public electric utility must give notice to the West Virginia Office of Homeland Security and Emergency Management, Public Service Commission of West Virginia, and the Legislature’s Joint Committee on Government and Finance.

Delegate Young’s questions of counsel revealed several ambiguities in the language of the bill — does “shutdown” refer to both long-term and short-term maintenance shutdowns; what is adequate notice in terms of means or timing?

Sammy Grey with First Energy indicated that the energy company typically keeps 30 or more days of coal supply. First Energy has two coal-fired plants in West Virginia. The company usually has long-term coal supply contracts. It is unlikely that the bill would impact rates, but because the policy is codified, the company may make decisions to comply with the law that would result in increased costs. He also discussed First Energy recent plans to reduce greenhouse gases by 30% by 2030 and ultimately to become carbon-neutral by 2050. He also clarifies that maintenance shutdowns are referred to “outages” so the bill would not require a notice.

Charlotte Lane, Chairwoman of the PSC, indicated that the bill does not appear to create an additional burden on the PSC. She also does not believe it puts any additional burdens on ratepayer than any other legislation. But the bill does not ask the PSC to consider the impact on ratepayers. With regard to the requirement that the company having to maintain a minimum 30-day aggregate coal supply under contract, she believes that it makes good sense, but it is not currently a requirement. Currently, the PSC only insists that the company keep an adequate supply of fuel on hand.

Chris Hamilton, with the WV Coal Association is asked what might occur if plants do not have an adequate supply of coal on hand. He suggests that inclement weather may result in losses of electrical power. He does not believe the bill requires energy plants to do anything that should not already be expected, i.e., that the plants should continue operating for the full extent of their lifetimes. He notes that while the state cannot dictate national energy policy but can do something to ensure that WV resources are continued to be used in West Virginia.

Under questioning by Delegate Hansen, Mr. Hamilton agrees that First Energy’s decision to decrease their carbon emissions are the result of the desire of private investors and not public policy.

Delegate Young makes the point with Mr. Hamilton that rather than 30% of electrical power being generated by coal in WV, the number is actually 90%. Consequently, she insists, the references to what recently occurred in Texas are irrelevant.

Russ Lang, chairman of the West Virginia Energy Users Group indicated that his organization does not have any objections to the bill.

The committee reported the bill to the full House with a recommendation that it do pass.

The committee also took up HCR90, to study the commercial discrimination of producers of coal, gas, oil, carbon-based energy, and other products in the State of West Virginia.

The resolution calls for the Joint Committee on Government and Finance to study the effect of the Board of Trustees of the West Virginia Public Employees Retirement System (“Board”) identifying all restricted businesses in which the Fund has direct or indirect holdings and the effect of the Board identifying the names of all restricted businesses into a restricted business list; and the effect of the Board updating the restricted business list at least on an annual basis. The committee made a technical amendment then reported the resolution, as amended, to the full House with a recommendation that it do pass, but that it first be referred to the Committee on Rules.

Meanwhile, over in Senate Government Organization, Committee Substitute for HB2667 was passed and would promote energy savings and efficiency in state buildings by implementing an energy savings program for assessment and implementation of energy savings goals for state buildings. An annual energy audit is required. It is estimated that this could result in a savings of $2.6 million annually. The bill is 2nd referenced to Finance.

After amending HB 2674, the committee passed the bill, which updates the required credentials for a certified nurse anesthetist who cooperates with a physician or dentist, the committee voted to pass it. This bill authorizes APRN’s to have the same prescriptive authority granted to Physician Assists in a prior bill recommended for passage by the committee.

Tim Huffman, who represents insurance carriers including Brick Street notes that this bill has been considered by the legislature in past years. This year’s version, which makes it elective, alleviates many of the concerns of the insurance carriers. He also notes that many paid fire departments are self-insured and therefore will make the decision about whether to add it to the schedule of coverage. He was unable to provide any information on the cost of such coverage, especially since not many carriers provide this type of coverage.

Erin Hunter, Deputy WV Insurance Commissioner and General Counsel agrees with the comments of Ms. Terry and Mr. Huffman and notes that this is the best that can be done with the amount of limited data available. Preliminary data suggests that the number of first responders suffering from PTSD is very high. Consequently, this would have a major impact on the cost of such coverage. She notes that volunteer agencies are currently dissatisfied with the cost of coverage.

The bill now goes before the full Senate with the committee’s recommendation that it passes as amended.

The committee passed HB 3311, which limits the cost of obtaining medical records to a fee consistent with HIPAA. The bill is intended to clarify the fees to be charged to patients.

A strike & insert amendment for Com Sub for SB509, relating to involuntary hospitalization, was passed by House Judiciary and incorporated changes made in House Health. It would request the Supreme Court of Appeals to provide training to specified persons on medical conditions mimicking, causing, or contributing to a psychiatric presentation and provide that the magistrate or mental hygiene commissioner may determine the individual should be evaluated for medical condition. It removes a requirement that a determination of medical stability be found prior to admission to a mental health facility.

It provides that if after order of involuntary hospitalization is entered the cause is determined to be medical rather than physical, this shall not serve to make the person banned from possessing a firearm. The Sheriff or other arresting officer can provide transport to a diversion facility (a licensed psychiatric hospital that is not a state hospital) as designated by the chief medical officer of the state hospital.

Finally, the Senate Finance committee passed Committee Substitute for HB2266, which expands Medicaid coverage up to one year postpartum. The committee adopted the Committee on Health and Human Resources amendment to the bill.

“Everybody is worried about the potential of federal overreach,” Crawford said. “Do you have a fear that guns are going to be taken away from you personally?” asked Senator Beach. Crawford responded he did not and acknowledged Sen. Beach’s observation that no administration has done so.

The President of the WV Citizens Defense League said the strike & insert amendment falls short of the bill the House passed originally. Sgt. Oglesby, representing the WV State Police, voiced concerns about the bill – specifically law enforcement’s ability to provide service to the state. “There are several crimes that we routinely charge federally that are not included in our state code,” he explained. Some of these are prohibited persons with ammunition, obliterated serial numbers, drug crimes with firearms, and others.” Oglesby explained that the footprint of federal agents in WV is very small and the bulk of investigations are done by Task Force Officers who are deputized by the federal government.

Explaining possible consequences of the bill, Oglesby stated, “We have local control. We can shut down any federal investigation we disagree with. When we no longer participate or investigate firearms or other federal crimes, they will no longer subsidize our task force officers. They may put more federal officers in the state to replace them,”  It was at this point that Chairman Trump ended discussion.

General Counsel for the state ABCA answered a variety of questions regarding outdoor dining, street dining, convenience store delivery, hard cider, and many other aspects of the bill. The Retailers Association & Spirits Council of WV, represented by Bridget Lambert, spoke against the bill, stating that WV stores just bid for 10-year permits for market zones purchased from the state. The state made $53 million from these contracts and direct shipment to consumers impacts these retail stores. Attorney Tony Majestro echoed the opposition to direct shipment, pointing out that his client paid $2.5 million for her license and all of them still have 9 1/2 years on contract term. Edward George and the Sr. Vice President of Distilled Spirits Council of U.S. spoke in favor of the bill generally, saying that home delivery and cocktails to go are the trend around the country. They supported direct shipment. Senator Romano offered a conceptual amendment to prohibit direct shipment to a consumer but it can go to a licensee of the consumer’s choice in their area. In support of his amendment, Romano said, “We can’t make a contract and then change the terms.” He was also concerned about points raised from a speaker from Vermnt who warned that if the state doesn’t control direct shipment delivery, we risk putting liquor in the hands of minors The amendment was adopted and the amended strike & insert amendment for HB 2025 passed. As it was already 8 p.m., Vice-Chairman Weld said, “One down, seven to go.”

Del. Fast moved to amend the bill to address the federal gun law issue in HB 2694 and it was adopted. Another amendment was made to further address the intent of HB 2694, making it clear that no WV law enforcement can cooperate with National Guard or any federal law enforcement with regard to federal firearms laws that are not in WV code. The delegate who made the amendment said it makes it clear WV cannot help with an “overzealous White House.” This amendment was adopted. Another amendment was made to eliminate the open-ended situations in the bill that might lead to 2nd Amendment infringement in WV and it was adopted. The bill passed as amended.

Meanwhile, motor vehicle crash reports are the subject of a Senate Judiciary strike & insert amendment for Com Sub for HB2195, requiring law enforcement officers to provide information to all parties involved within 24 hours of a vehicle crash. Senator Caputo successfully amended the bill to state that the information shall be available and provided upon request to the parties and the bill passed as amended.

Committee members passed Committee Substitute for HJR 3 , the Property Tax Modernization Amendment, which is a resolution that proposes an amendment to the Constitution of the State of West Virginia to authorize the Legislature to exempt tangible machinery and equipment personal property directly used in business activity and tangible inventory personal property directly used in business activity from ad valorem property taxation by general law.

The Committee on the Judiciary amended the bill significantly. The amendment would have authorized a one percent sales tax in lieu of ad valorem property taxes on machinery and automobiles.

The Judiciary amendment was not taken up by the Finance committee, instead the committee took up an amendment to restore the language as it was received by the Senate.

Johnathon Adler answered questions on the potential impact of the constitutional amendment if it were adopted the voters He notes that the passage of the amendment may have a detrimental impact on the state’s smaller counties.

The committee reported the resolution, as amended, to the full Senate, with a recommendation that it do pass, as amended

Finally, committee members passed Committee Substitute for HJR 3 , the Property Tax Modernization Amendment, which is a resolution that proposes an amendment to the Constitution of the State of West Virginia to authorize the Legislature to exempt tangible machinery and equipment personal property directly used in business activity and tangible inventory personal property directly used in business activity from ad valorem property taxation by general law.

The Committee on the Judiciary amended the bill significantly. The amendment would have authorized a one percent sales tax in lieu of ad valorem property taxes on machinery and automobiles.

The Judiciary amendment was not taken up by the Finance committee, instead the committee took up an amendment to restore the language as it was received by the Senate.

Johnathon Adler answered questions on the potential impact of the constitutional amendment if it were adopted the voters He notes that the passage of the amendment may have a detrimental impact on the state’s smaller counties.

The committee reported the resolution, as amended, to the full Senate, with a recommendation that it do pass, as amended