WVEC Legislative Update

To read the update online, scroll down to articles (or click on index links below).  If you want to print or read an exact copy of the printed newsletter, try the PDF version. 

Under the Dome
Public Hearing Scheduled for Monday: EQB in Serious Jeopardy
Public Hearing Scheduled:Saving the Environmental Quality Board (EQB)
They Say Politics in WV is Personal
House Still Working on Water Quantity Bill
A Final Shameless Plea
Bizarre Happenings
Bottle Bill Dies in Committee
From the Editor...
Other Bills
Senate Narrowly Passes Weakened Version of Coal Truck Legislation
'Stream Bufer Zone' Rule Change Public Hearings Scheduled
Clean Elections Act Stalls; Resolution for Further Study Likely
Bills We Are Tracking

Under the Dome

If you go to the web site of the West Virginia Legislature you will find that 1371 bills have been introduced in the House of Delegates this year.

On the Senate side, 734 bills have been introduced.

Just taking a quick run through the list on the House side, we find HB 2009 that proposes to change the state’s primary election date. Well, there may be a need to do that I guess, but it sounds like politics to me.

Then there’s HB 2017 that exempts beehives from personal property assessment and taxation. Busy, busy bees. Still pending is HB 2022 that would require mine operators to provide notice of hazardous chemical substances and lead exposure to its employees – we need a law to do this?

Or there’s HB 4312, the "Verifiable Science Act." The note on this bill says, "The purpose of this bill is to provide that the public may request and shall receive, access under the state freedom of information act to any purported scientific data used as the basis for proposed legislative rules or statutory enactments."

Actually, the purpose of the bill is to advance the far-right’s nationwide attack on strong environmental and health regulations. The public already has the right to access this information. Good thing this bill isn’t going anywhere.

Just to give equal credit, on the Senate side there is SB 6 that would prohibit local boards of health from "requiring smoke-free areas." Now there’s a progressive bill. Or SB 186 which allows the sale of venison in restaurants – scientists just discovered that 40% of the male smallmouth bass in the South Branch of the Potomac now are carrying eggs in their testes, so you might want to be cautious here.

Then there’s SB 187 "Creating Job Creation Zones Act." Too much creating going on here, me thinks. And then there’s SB 720, "Relating to unused state private activity bond volume cap." I have no idea what this is about, but that’s what it says.

And finally, there’s SB 728, which adds the federal definition of "fill material" to the Water Pollution Control Act. Now this is just a little bill that supposedly only conforms state law to federal law. But the bill was proposed by the coal industry and not by DEP. Think something’s up here? You bet.

Well, folks, here’s my idea. There ought to be a law limiting the number of bills that the legislature can take up each year. Perhaps we could limit each house to 50 bills per session. Or perhaps we could limit each delegate or senator to introducing one bill per session.

Most of this stuff never gets taken up by a committee. Most of this stuff never sees the light of day – thankfully. But it just hangs around there until the last week when some of it always seems to jump out and get a new life and then really screw things up.

There ought to be a law.

The birdbrains will be done in a week – for this year. But it’s still winter so remember to keep your bird feeders full.

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"We also must continue to protect the quality of water in our streams and rivers to preserve them for future generations. We must reject any attempt to weaken our water quality rules."

Governor Bob Wise, State of the State
address, January 14, 2004

The polluters’ attack on the Environmental Quality Board has exploded into an all-out war, and the future of the EQB and its role in setting West Virginia’s water quality standards is in serious jeopardy.

Here’s some background on how we have arrived at this point:

Last week the House Government Organization Committee passed HB 2717, a bill that would eliminate the Environmental Quality Board as the agency that sets our water quality standards. Instead, the bill would create a new Water Quality Board composed of various agency secretaries and directors to develop the state’s water quality standards.

The new board would include the Secretary of the Department of Environmental Protection, the Secretary of Transportation, the Director of Tourism, the Commissioner of Agriculture, the Director of the Department of Forestry, the Director of the Department of Natural Resources, and the Director of the Office of Economic and Community Development. Noticeably absent is the Director of Public Health.

HB 2717 was basically the Farm Bureau’s bill from last year, and was worked hard by the Farm Bureau’s lobbyist.

This week the Senate Judiciary Committee originated and passed to the floor its own version of EQB elimination, SB 724. The Senate’s version would put the process of developing West Virginia’s water quality standards in the hands of the Secretary of the Department of Environmental Protection, with no provisions in the bill on how the process would be implemented.

What had happened was this: It was no secret that House Judiciary Committee Chairman Jon Amores did not like the Farm Bureau bill (he killed it in committee last year). But he wanted something else to run in its place. So the DEP rode in like a knight in shining armor with an offer to take over the task of setting the state’s water quality standards. The result is SB 724.

Just today we learned that House Judiciary Committee Chairman Jon Amores granted our request for a public hearing, but a new wrinkle has been added to the mix. The public hearing will also consider SB 616, a bill the Senate passed this week that makes changes to the composition of the DEP advisory council – it adds the Commissioner of Agriculture to the council.

It could very well be that leadership is now considering moving the EQB’s rulemaking authority not to DEP directly, but to a newly expanded DEP advisory council. We won’t know for sure until the committee meets after the public hearing.

All of these proposals are shams that will allow whoever is Governor at the time to appoint all of the persons who will decide how clean – or how dirty – our water will be (the only exception is the Commissioner of Agriculture, which is an elected office). These proposals would merely further politicize the setting of our water quality standards.

Under current law the Environmental Quality Board (EQB) promulgates West Virginia’s water quality standards. The board also serves an appellate function, to hear appeals of DEP permit decisions. Currently the board consists of five members, all of whom must have "expertise in water husbandry," they are appointed by the governor, they serve staggered three-year terms so all are not appointed by the same governor, only three can be of the same political party, and none can work for any company that gets NPDES permits from the DEP.

The EQB is the closest thing we can get to an "independent" board in this state. All of its deliberations and decisions are made in full public view and with full and open public notice and comment. Even though it is greatly underfunded, EQB has excellent and knowledgeable technical, legal and clerical staff.

We simply MUST save the EQB! So please call any and all Delegates and Senators you can and urge them to vote against HB 2717 or SB 724. And call the Governor, too.

The toll-free number to reach your Delegates’ and Senators’ offices is 1-877-565-3447. Or you can find your legislator’s direct capitol number at the web site www.legis.state.wv.us. You can call the Governor toll-free at 1-888-438-2731 or e-mail him at Governor@WVGov.org.

And if at all possible, please attend the public hearing on Monday.

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Public Hearing Scheduled:

(note: HB 2717 is still active - details below - however not part of the public hearing at this time)

Citizens are better served by the Environmental Quality Board Process!

A year-long study of EQB is already in place – this is plenty of time to work through any proposals or needed changes to this process.

Both proposals by the House and Senate are unacceptable: both versions propose to eliminate the Environmental Quality Board as the agency that sets our water quality standards.

· House version HB 2717 creates a new Water Quality Board composed of various agency secretaries and directors: (Secretary of the DEP, Secretary of Transportation, Director of Tourism, Commissioner of Agriculture, Director of Dept. of Forestry, Director of Dept. of Nat. Resources, and Director of Office of Economic & Community Development).

· Absent from the new proposal list: Does not include the Director of Public Health.

· Senate Version, SB 724 places the process of developing West Virginia’s water quality standards in the hands of the Secretary of the Department of Environmental Protection (DEP) with no provisions in the bill on how the process would be implemented.

· SB 616 is a bill passed this week and makes changes to the composition of the DEP advisory council - adds the Commissioner of Agriculture.

· Under current law, the Environmental Quality Board (EQB) promulgates West Virginia’s water quality standards.

· The board also serves an appellate function, to hear appeals of DEP permit decisions.

· All members of the board must have "expertise in water husbandry".

· Currently the board consists of five members, serving staggered three-year terms, so all are not appointed by the same governor – and only three can be of the same political party.

· No board member can work for any company that gets NPDES permits from the DEP.

· All deliberations and decisions are made in full public view and with full and open public notice and comment.

· EQB has excellent and knowledgeable technical, legal and clerical staff.

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Last fall, I was diagnosed with asthma. It was ironic that just a few days earlier I had read about that West Virginia has the fifth highest incidence of asthma in the nation. An October report written by the Asthma Education and Prevention Program also reported that 3.9 % of the population is afflicted with the disease.

The article in the Morgantown Press quoted a David Deutsch who described how unacceptable it was that there were, on average, 35 deaths a year from asthma in West Virginia between 1991 and 2000.

When my doctor told me what it was, and why I was wheezing and struggling for breath, he prescribed a fancy inhaler for regular twice daily preventative use. He also equipped me with portable and stationary nebulizers for short term more powerful deflection of an oncoming attack, as well as a small pocket "spritzer" blast inhaler for emergencies.

Why, I asked. What triggers it? Thirty plus years living in smoggy Southern California, and I never had a breathing problem. All my doctor could say was that he wished doctors knew why, and that it’s common to newcomers to west Virginia who are not immune to what is in the air!

Well, I got lazy, and didn’t stay with the regimen of twice daily inhaling of the prescribed preventative. And I got to learn my lesson all over again.

Last Friday, I wound up doing the ambulance shtick to St. Francis Emergency, on oxygen, my lungs collapsing and closing off my breathing. Dumb. I have missed all the fun at the legislature this week as I struggled to get my lungs working again. I’ll be fine eventually, I am sure.

But what’s my point? This is not about me — it’s about POLLUTION.

I would not want to wish this on anyone. BUT, when are the policy makers and regulators going to wake up to the fact that pollution can and does KILL.

DEP granted a permit this week to a new power plant in Morgantown that will spew out thousands of tons of pollutants . . . and they say that’s OK. Have we all gone mad?

When alternative technologies are available and clean, we keep building KILLING machines called B.A.C.T. Power Plants.

Hopefully, I’ll be back at the legislature next week, having this discussion with more than just a few of them who don’t get it. Stay tuned for their reactions because I intend to be in their face about it.

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The House Judiciary subcommittee on water issues met Thursday to revisit its work on the water quantity bill (SB 163). We had objected to language that appeared to exempt coal, oil and gas from the study of water use. The language has been tweaked so that it is fixed and the subcommittee has sent the bill back to the full committee. The committee will likely take the bill up early next week.

Virtually everyone is satisfied with the bill as it stands now. It does not mention taxation. It does claim the water for the "citizens" of the state, since the legislature derives its power from the citizens. "People" had been used in another version, and that’s problematic given that the legal definition of people includes corporations and other entities.

The fate of this bill may not be known until the final hour of the final night.

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(Until Next Time)

It wouldn’t be a Legislative Update without a shameless plea from me. So here it is.

The WVEC lobby team is YOUR lobby team. We are your voice for the environment at this madhouse known as the West Virginia legislature.

We need your continued financial support in order to continue being that voice. Every dollar you send us REALLY helps. We do this on a bare-bones budget. When things get hectic down here, like they are right now, we are so short-staffed we can’t do all the things we’d like to do – like keeping the bill tracking list updated.

So if you haven’t renewed your membership, please do it today. And if you can afford to send the Environmental Council just a little more money this month, please do that as well.

Thanks for helping us continue to work for you.

Another Bad Coal Permit Issued

Fred Sampson, WVEC Board President

Power Mountain Coal Co., A Massey subsidiary, received a permit from WV Department of Environmental Protection (DEP) to pump coal slurry from their Coal Preparation Plant into their abandoned Shaft Mine. DEP officials have confirmed that they did NOT require studies of the potential danger. 

Terry Eagle Coal, a Fola Coal/AMVEST subsidiary also had an abandoned Shaft Mine next door and their underground mining shafts were connected to Power Mtn. shafts. 

Terry Eagle appealed the West Virginia Surface Mine Board to have them stop Power Mtn. from pumping coal slurry into their mine, as underground it could run into their mine and then out through the proven cracks and crevices into 20 mile creek in Nicholas County and DEP would then fine Terry Eagle for pollution of the water in 20 mile creek. 

  Terry Eagle then appealed to the WV Water Quality Board (EQB) to stop Power Mtn. from pumping Slurry into their mine under their NPDES permit. 

EQB heard this case on Wed. Feb 25th and in all day testimony a few things became very clear:

· The Slurry material being pumped contains arsenic, manganese, aluminum, etc. and if it runs into the waters of West Virginia, they are polluted - and whoever does this is cited by DEP and fined.

· There is a direct underground connection between the two mines.

· Terry Eagle was forced to stop their intended mining when they got close to 20 mile creek as the water pumping time went from 8hrs/week to 120 hrs/week. This shows a direct connection through cracks/coal seams/crevices between the waters of 20 mile creek and the mine that contains the coal slurry being pumped into Power Mtn.'s abandoned mine.

· The down-dip direction is from Power Mtn. mine towards Terry Eagle mine. Any slurry put into this mine will run directly to the bottom of Terry Eagle’s mine, close to 20 mile creek, and there is nothing to stop it from running through the cracks and crevices into 20 mile creek. This EQB hearing was not completed on Wednesday, February 25 and was continued at 8:30 AM on Thursday., February 26.

Terry Eagle's attorney advised EQB the first thing after opening the hearing that his Client, Terry Eagle coal had reached a settlement last night with Power Mtn. Coal and Terry Eagle withdrew their appeal. End of story? Perhaps not!

· Power Mtn. is still pumping slurry into their mine.

· There is NOTHING to stop it from running down and through Terry Eagle’s mine directly into 20 mile creek and into any aquifers in this area.

· What is DEP doing about this sorry situation?. No citations have been issued, yet.

Stay tuned for the REST OF THE STORY.

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I have made several attempts to write a lucid and concise story about what happened on the floor of the House on Wednesday, which was the last day bills could be passed out of the house of origin. This is not possible. What I can tell you is that:

· A bill that was allegedly non-controversial and therefore on the consent calendar (in a bundle with other non-controversial bills) was defeated on the floor in a 48-48 vote.

· One bill appeared to pit the WVEA against the NAACP. It would create demonstration projects to help improve the appalling test scores in certain low income and minority schools. Del. Earnie Kuhn reportedly brokered the compromise that saved the bill.

· Republicans and union members voted together against the House leadership. It was allegedly not a plan. It just happened. But both Republicans and union lobbyists were smiling.

· Some committee chairs voted against leadership on several occasions. This is just not done.

· There were several unscheduled Rules committee meetings for leadership to figure out what was happening. One even happened between a vote on a bill’s amendment and the final vote on the bill.

· Lots of bills died.

And on the Senate side, Sen. Sprouse added a food tax reduction proposal to the popular sales tax holiday bill and then the bill died. So there will be no sales tax holiday this year, unless someone figures out a way to add it to another sales tax bill.

Good grief. What was it Churchill said about democracy being a terrible form of government, but all the others were worse?

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This year's Bottle Bill had bi-partisan sponsorship and was better legislation than last year. Still, strong opposition rose to meet our efforts and we could not get the bill on either Judiciary Committees' agenda. While this is discouraging, it's important to remember that we certainly raised awareness of the issue this year.

First, Deposit Day, coinciding (completely by accident, I swear!) with the Soft Drink Association's Day at the Capitol, brought legislators, staff, media and citizens to our booth and gave us a chance to explain the concept.

Secondly, industry lobbyists took this bill seriously. As I thanked the bill's sponsors this week, Senator McKenzie told me that no other bill brought more opposition (I paraphrase). He shrugged off the opposition, telling me, "I just can't understand why anyone would be opposed to controlling litter."

We are bolstered by the strong statewide support this bill has received from you. Next year we will do an even better job at translating that grassroots momentum into lobbying strength at the Legislative Session. During the legislative "off-season" we'll continue our local education efforts, and, with our sponsors and other stakeholders, we'll work on drafting an even better bill for 2005 (not an election year!).

In the meantime, visit www.wvbottlebill.org for more information and give us a call or e-mail if you'd like a bumper sticker!

Thanks so much for your support!

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This will be the last issue of our Legislative Update for this session. We do not publish during the last (hectic) week, as the lobby team will be busy at the capitol as you can certainly understand! The session ends on Saturday, March 13.

We will issue our Legislative Wrap Up newsletter after the session in early April, with all the details, grand finale and fate of our issues.

In the meantime, for those on our e-mail list serve, we will continue to send out Action Alerts as necessary - so be watching for those.

Conni Gratop Lewis, WVEC

Over the course of a legislative session the WVEC lobby team puts considerable energy into a handful of critical issues and watches several others to see what happens. They might have some connection to our priorities.

One example is SB 454, which rewrites the legislation governing local planning and zoning n the state. The current law was developed during the Eisenhower administration, and has been out of date for, oh, 20 years.

Last year an interim study looked at the issue. There was a stakeholder process that wore the participants out. But a bill was generated. It’s not fancy and forward looking, but it’s a good solid piece of legislation that communities can use to plan for the use of their land and communities. The findings are wonderful and include the phrase, "sprawl is not advantageous to a community."

Helen Gibbins of the WV League of Women Voters has participated in the process and she is satisfied with the results. Let’s hope the House passes this bill. When it does, I encourage all our readers to think about how to implement the bill in their counties and cities. Good planning is good for everything we hold dear about West Virginia.

Another bill that we’re not so pleased with is SB 322, which resuscitates the old Public Energy Authority (sun-setted several months ago). The new version would have the authority to build dams for flood prevention and electricity generation. It would have wide-ranging powers, including eminent domain.

The sponsors include many of the southern Senators who clearly are seeking solutions to the continuing flooding in their section of the state. At least the owners of the projects contemplated in this bill aren’t exempt from taxation.

Which is more than you can say for the project owners in SB 221, the kinder gentler version of the public-private facilities act. It purports to encourage a private entity to build or upgrade transportation projects (bridges, roads etc) in cooperation with the Department of Transportation.

The funding mechanism is a little squirrelly. According to news reports, Fred Van Kirk doesn’t care for it. It could easily tie up highway funding meant for other projects. The profits are tax exempt. Not a good idea. Oh, and it’s not worked well in at least two other states that have tried it.

We will be watching these bills this week while we continue to focus on our priorities.

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We had a near victory on Tuesday, when the Senate came within one vote of defeating legislation that will weaken the reporting requirements for coal trucks. SB 673 was narrowly passed by a 17 to 16 vote, with 1 absent. Voting for the measure were Senators Boley, Deem, Facemyer, Fanning, Guills, Harrison, Helmick, Love, McCabe, Minard, Minear, Ross, Sharpe, Snyder, Sprouse, Tomblin and Weeks.

In the House, SB 673 has been assigned to the Finance Committee. We’re unaware of any fiscal implications this legislation would have on the state, so we suspect that this assignment was an attempt by House leadership to try to silence Delegate Mike Caputo who serves on the House Judiciary Committee. We have already called for a public hearing on this and a handful of other coal friendly bills that passed the Senate this week, so check your e-mail for updates and action alerts.

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'Stream Bufer Zone' Rule
Change Public Hearings Scheduled

Charleston, WV. - Charleston Civic Center, room 206, 200 Civic Center Drive, 6 to 9 p.m.

For more information: www.ohvec.org or (304) 522-0246

As we went to press last Friday, the House Judiciary Committee was taking up the Clean Elections Act (HB4260). Discussion on the bill was halted after Delegate Lidella Hrutkay offered an amendment to strike out the requirement that non-participating candidates report excess expenditures.

Under the bill, Clean Elections candidates can receive matching funds when outspent by a non-participating opponent. Before a vote on Hrutkay’s motion was held, Delegate Barbara Fleischauer asked that the bill be held over until Monday in order to work out a compromise amendment.

Delegate Fleischauer’s request was granted and we were grateful for the delay because Hrutkay’s motion may have passed and several of our supporters on the committee were absent, including three members of the subcommittee that recommended the bill. In the end we were disappointed, when prior to Monday’s meeting, Chairman Jon Amores and Delegate Fleischauer decided it was better not to pursue the bill this late in the session since it was not likely to be passed by the full legislature this year. Delegate Amores has agreed to introduce a resolution for an interim study by a committee that would include member of both the House and Senate Judiciary and Finance Committees.

Please take time to thank subcommittee Chair Delegate Fleischauer and the other committee members, Brown, Craig, Ellem and Webster for their work. And thank Delegate Amores for his continued commitment to Clean Elections.

Although we did not get a vote in the House Judiciary Committee, and the Senate Finance Committee did not put Clean Elections on its agenda, we are extremely pleased with the progress that has been made this session. Our success would not have been possible without your calls, e-mails and letters! Thank you!

Thanks and recognition also go to Citizens for Clean Elections (CFCE) Coordinator and OVEC Co-Director Janet Fout, CFCE lobbyist Si Galperin and all of the CFCE coalition partners who have lent there support to our legislative efforts including (but not limited to) the WV Environmental Council lobby team, Susan Subkoviak with the National Association of Social Workers-WV, Dennis Sparks and Carol Warren with the WV Council of Churches and Carl Shaw with WV Common Cause.

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Bills We Are Tracking

  *** Please Note: This Bill Tracking list is as current as we can get it today ... there's so much happening at the capitol, and simply not enough time to bring completely up to date - and bills are moving fast constantly at this point.

See WV legislature’s web page for text of bills.

Legislative Reference & Information Center
MB-27, Building 1
State Capitol Complex
Charleston, WV 25305
304 347-4836 toll free: 1 877 565-3447

On Line: www.legis.state.wv.us

 Click here for a complete list of all the House of Delegates Representatives and Senators with their individual contact information. 

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