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LB 2001-10
Apr 20, 2001

LEGISLATURE COMMITS NEARLY $1 BILLION TO INFRASTRUCTURE INVESTMENT

The 60-day legislative session ended Saturday, April 14, at midnight without action on Gov. Bob Wise's video lottery machine proposal. A conference committee was close to agreement on Saturday but time ran out when legislators didn't have time to review and debate the committee's report. The governor called a special session to finish work on the bill. In the balance is approximately $200 million in construction bonds for the WV School Authority and $400 million for water, sewer and economic development projects through the WV Infrastructure and Jobs Development Council. The proposal also calls for $90 million for improvements to facilities at higher education institutions and $40 million for state parks. At press time, the House had passed its version of the gray machine bill and the Senate is expected to complete action today.

The bill allocates $25 million annually for the School Building Authority and $19 million for higher education and parks. The bill provides $25 million the first year and $50 million in the following years to the WV Infrastructure Council. Legislative leaders are not exactly sure what funding levels will be generated through the gray machines so they will wait until the revenue stream is firmly defined before they issue bonds. The money could be used for a pay-as-you-go program this year followed by the issuance of bonds. The revenue estimate for the gray machines — and increasing the maximum bets on the video machines at the race tracks from $2 to $5 dollars — is $112 million in Fiscal Year 2002, $216 million in Fiscal Year 2003, jumping to $233 million in Fiscal Year 2005.

If the gray machine bill passes, Gov. Bob Wise and the WV Legislature this year will have committed nearly $1 billion for infrastructure projects!

This is broken down as follows: Road Bonds — $110 million; Regional Jail Funding — $60 million*; School Building Authority Funding — $200 million*; WV Infrastructure Council Funding — $400 million*; Higher Education -- $90 million; State Parks Funding — $40 million*; and Marshall University — $46 million* This funding totals $946 million. If the $55 million from the reauthorization of the nickel gas tax is included, the figure goes over $1 billion. (* — estimated)

GAS TAX AND ROAD BONDS PASS

A bill to reauthorize the nickel gasoline tax was approved by both houses and was on the way to Gov. Wise for his signature when a technical error was discovered. The governor vetoed S.B. 129 and a new bill was introduced during the special session. The bill was passed Wednesday by both houses. The measure provides $55 million annually for road and bridge construction and maintenance. The House approved late Saturday the final $110 million installment of the 1996 $550 million Safe Roads Bond Amendment. Speaker Bob Kiss took to the floor to deliver an eloquent speech on the need for infrastructure development in West Virginia. He said he is proud of his tenure in the Legislature which has provided approximately $9 billion for highway, infrastructure, school and prison construction over the past 10 years. He stated that infrastructure is the only sure way to create economic development in the state. His speech was met with a standing ovation by fellow legislators. The speaker noted he is still committed to providing funding for infrastructure projects.

WV JOBS ACT PASSES AFTER NEARLY NINE YEAR DEBATE

Starting September 1, 2001, contractors on public works projects over $500,000 must hire 75 percent of their workforce from the local labor market. Local labor market is defined as every county in West Virginia and all surrounding states' counties that are 75 miles from West Virginia's border. The bill was culmination of 9 years of work for the ACT Foundation, which has spent hundreds of thousands of dollars promoting the jobs bill.

The final version of S.B. 103 was greatly modified from its original version through intense negotiations by the CAWV, ACT Foundation and legislators. Even though this is only a pilot program, the underlying concerns of the original jobs act remain intact — will surrounding states retaliate against West Virginia construction workers and is the protection bill constitutional. These issues will have to be addressed in future forums.

The major aspects of the bill are as follows:

The bill is a pilot project and applies to projects bid between September 1, 2001 and March 15, 2003.

The bill applies to state projects over $500,000. It specially excludes county and municipal projects and any projects that contain federal funds. A private project funded by loans or bonds from the state Economic Development Authority is also included in the bill.

Contractors and subcontractors must hire 75 percent of their workforce from the local labor market. At least two employees from outside the local labor market is permissible for each employer to assist those specialty contractors that might have a small crew.

Local labor market is defined as every county in West Virginia and all counties bordering West Virginia that fall within 75 miles of the border of West Virginia. (If the border county is within 75 miles of the WV border, every resident in that county is considered in the local labor market, not just those that live within the 75 mile radius). Employees shall have resided in the local labor market for at least six months prior to their application for employment.

Any employer unable to meet the minimum number of the local labor market shall notify the nearest WV Office of the Bureau of Employment Programs of the number of qualified employees needed and provide a job description of the positions to be filled.

If, within three business days, the employment office cannot refer any qualified job applicants or refers less qualified applicants than the number requested, the office shall issue a waiver to the employer stating the unavailability of applicants and the employer can hire outside the local labor market.

The employer will have the discretion of determining whether an applicant is qualified.

The WV Division of Labor will compile the information required and submit it to the Joint Committee on Government and Finance by October 15, 2002 for a legislative audit to be prepared for the December 2002 legislative interim session.

Any employer who violates any provision of this article is subject to a civil penalty of $100 per day of violation.

The Engrossed S.B. 103 is greatly modified from its original version. The original bill contained a permanent hiring requirement, a 90 percent local hire, applied to all projects over $25,000, local labor was defined as everyone in West Virginia and out of state residents that lived 75 miles from the project, the WV unemployment office had seven days in which to respond, employers were guilty of misdemeanors for violating the act, anyone not hired could sue employer with the burden of proof being on the employer and no independent authority to review the data.

The WV Division of Labor will be developing guidelines for state contracting agencies to place in contract proposals beginning September 1, 2001.

CONSTRUCTION MANAGEMENT TAX BILL PASSES LEGISLATURE

S.B. 650 was passed by the House on Friday. The bill now defines construction management as contracting for consumer and sales use tax purposes. The bill was necessary because the state Tax Department rules stated the construction management was a taxable service subject to the state's 6 percent consumer sales tax. Under this bill, construction management services will be taxed as any other general contracting activity.

LEGISLATURE SECURES JUVENILE FACILITIES CONSTRUCTION FUNDING

West Virginia will be able to fund all the remaining juvenile detention facilities through legislation adopted by both houses. H.B. 3156 provides for the permanent financing of a new jail and remaining juvenile detention facilities by the West Virginia Economic Development Authority. Given the current bond market, Regional Jail Director Steve Canterbury estimates $60 million could be available for construction. This would guarantee the completion of juvenile facilities around the state plus have extra for other jail construction projects. The bill must be tested in court to make sure it meets the requirements set forth by the bond market. The jail authority plans to file a test case with the WV Supreme Court as early as possible.

ANTIDEGRADATION COMPROMISE REACHED

On Saturday, the House of Delegates concurred with the Senate on the amendments to the antidegradation policy. Discussions between the Clean Water Coalition, WVDEP and legislators were held right up to the last minute to reach a compromise on the policy. Coalition members compromised on some points but many of the issues raised by the coalition were made part of the final legislation. The WV Division of Highways worked to guarantee the new policy would not be in addition to the environmental activities the DOH already undertakes.

ANNEXATION BILL PASSES

S.B. 202 amends the requirements on how municipalities annex territories. The CAWV inserted amendments into the bill to prevent cities from retroactively charging city Business and Occupation taxes on existing contracts and to prevent cities from annexing a highway solely for the purpose of collecting B&O taxes on any highway construction or maintenance.

RULES BILL PASS LEGISLATURE

The Legislature approved rules bills introduced by various state agencies. Of particular interest to the CAWV are: 1/ Quarry rules; 2/ Crane operator certification rules; 3/ Crane operator practical testing rules; and 4/ Design-Build rules. All rules were approved by the CAWV prior to introduction and were accepted without amendments, except for the quarry rules.

The WV Crushed Aggregates Council sought three amendments to the quarry rules, of which, two were approved and one was modified. The two changes dealt with 8.5 — backfilling — and 9.4.c.4 — construction of spoil piles. The one change the WVCAC requested dealt with blasting warnings — 6.5.b.1. The original rule required that "Each person in the permit area, and each person who resides or regularly works within one half mile of the permit area, shall be notified of the meaning of these signals." The industry wanted one-half mile changed to adjacent, which is what is contained in the quarry legislation. The Judiciary Committees in each house did strike "or regularly works" and replace it with "business establishment" in order to narrowly define who must be notified. The original language made it too nebulous to determine who "regularly works" in an area.

HIRING ILLEGAL ALIENS CAUSE OF DISCIPLINARY ACTION

H.B. 2801 adds knowingly hiring illegal aliens to the list of disciplinary actions the WV Contractors Licensing Board can take against a contractor. The board probably had this authority under existing law but this makes it clear that the licensing board can revoke or suspend a license, censure or reprimand, impose limitations or conditions and take other remedial action against any contractor who knowingly employs any persons who do not have the legal right to be employed in the United States.

MARSHALL CAN BUILD HOUSING, PARKING FACILITIES

Marshall University plans to issue $46 million in bonds for a housing unit and parking garage, now that the WV Legislature approved S.B. 517 which give universities authority to issue bonds for a parking structure. Since the measure passed, Marshall will sell bonds in May for a 1,000-car parking garage estimated at $8 million. Once the garage is completed, work will begin on a $30 million housing project totaling 500 beds in four different structures.

AGREEMENT REACHED ON IF COUNCIL PROJECT THRESHOLD

Municipalities and other political subdivisions using WV Infrastructure Council funds can perform work with their own crews on construction and repair projects not exceeding a total cost of $50,000 by their regular full-time employees in an agreement reached between the association and legislative leaders. The original version of the bill eliminated the existing $25,000 limit to allow force account work on projects of any size. In the agreement S. B.586, introduced by Senate President Earl Ray Tomblin, and H. B. 3056 by various delegates, caps the project size at $50,000 and providing that no more than $50,000 can be expanded on an individual project in a single location in a 12-month period. This provision is intended to prevent a public entity from taking a $200,000 project and dividing it into four sections in order to circumvent the $50,000 threshold. S.B. 586 passed the House on the last day of the session.

DOMESTIC STEEL BILL PASSED EARLY IN SESSION

One of the first bills passed by the Legislature was S.B. 124, which requires the use of domestic steel on state-funded construction projects. The bill mirrors current state statute which requires not only domestic steel be used on state projects, but glass and aluminum as well. This statute has been on the books since 1978 and to our knowledge has been working very well. The CAWV inserted an amendment that eliminates liability for contractors if they receive documentation from the supplier showing the steel is fabricated in the United States. Gov. Wise mentioned this in his State of the State address as a method to help domestic steel producers from unfair steel imports.

SBA CAN SPREAD OUT CONSTRUCTION COSTS

S.B. 676 authorizes the School Building Authority to disperse funds for construction projects over a period of time or years as different phases of the project are completed. Under current law, a construction project must have all of its funding committed prior to the project going out for bid. This would allow SBA to phase the funding as the project progresses so it doesn't have to encumber all the costs upfront.

BILLS THAT DID NOT PASS THIS LEGISLATIVE SESSION

There were a number of bills introduced this session that did not pass the Legislature. In most cases, the CAWV wanted to see the bills defeated. Below are a few of bills of interest.

BILL REQUIRED 25 PERCENT RETAINAGE WITHHELD

H.B. 2593 would have required contractors to notify persons with whom they enter construction contracts that the persons have the right to withhold 25 percent of the amount due on a construction contract until such time that proof is shown that all material persons, suppliers and subcontractors under the contract have been paid in full. The retainage is withheld on the life of the contract and could not be released until the contractor submits sufficient proof that all bills have been paid. The bill's sponsors are Dels. Mark Wills, D-Mercer, Don Perdue, D-Wayne, and Virginia Mahan, D-Summers. It was referred to the Committee on Government Organization then Judiciary.

QUARRY ZONING BILL INTRODUCED AGAIN

Dels. John Doyle, D-Berkeley, and Dale Manuel, D-Jefferson, reintroduced a bill giving growth counties that have adopted zoning ordinances the ability to prohibit quarry operations from locating in the area. The bill is to limit quarry operations under zoning laws. Under current law, quarries are exempt from zoning regulations. Legislators from the Eastern Panhandle attempted to get this language in the Quarry Reclamation Act passed last year. Under the compromise agreement, the legislators agreed to withdraw their demand that zoning be part of the bill. Instead, they would push for a stand alone zoning bill. H.B. 2379 follows through on their commitment to enact a zoning ordinance for quarries. By using growth counties with zoning laws, the Eastern Panhandle counties are about the only area of the state the regulations would apply. The bill was referred to the Committee on Political Subdivisions with a second reference to Judiciary.

BILL CREATED INDEPENDENT TAX APPEAL BOARD

House Speaker Bob Kiss and Senate Finance Chairman Oshel Craigo introduced companion bills to create a state board of tax appeals that would be independent of the state Tax Department. H.B. 2430 and S.B. 470 would replace the current system, which gives the state Tax Department primary authority to resolve disputes that taxpayers have with the department. Instead of having the department act as police officer, prosecutor, judge and jury in disputes with taxpayers, an independent state board of tax appeals would settle cases and determine the taxpayer's liability. H.B. 2430 was pending in the House Government Organization Committee. S.B. 470 was referred to the Judiciary Committee.

HIGHWAY FUND RAIDS THWARTED

There are always a number of bills introduced to raid the highway trust fund. Some bills would have lowered the gas tax while others would have diverted roads funds to other activities. The CAWV always opposes legislation that would requires highway funds to be used for anything other than their intended purpose.

RESIDENT VENDOR PREFERENCE BILL DIES

S.B. 37 would have provided for a preference for West Virginia contractors on municipal and county projects. The CAWV has supported reciprocal vendor preference laws to make sure West Virginia contractors are not placed at a disadvantage when bidding in other states and municipalities. It has not supported bills to provide a direct preference for instate firms due to retaliation by other states of West Virginia vendors.

JOBS IMPACT STATEMENT DEFEATED AGAIN

H.B. 2770 would have allowed legislative leaders to request "Jobs Impact Statements" for legislation to determine how proposed bills would impact jobs and employment in West Virginia. Organized labor opposes the bill, which would allow legislators to determine the impact a certain piece of legislation would have on existing jobs and future jobs creation.

LABOR RELATED BILLS INTRODUCED

A number of labor related bills were introduced in the first week of the session. Del. Warren McGraw, D-Raleigh, introduced H. B. 2077 which increases all permanent total disability awards to be increased by 20 percent; H. B. 2085, by Del. John Overington, R-Berkeley, exempted school construction projects from prevailing wage rates; H. B. 2086, also by Del. Overington, required the WV Division of Labor to base the determination of prevailing wage rates on statistics made available by the U. S. Department of Labor, Bureau of Labor Statistics; H. B. 2318 by Delegates Tom Coleman, D-Taylor, Sam Cann, D- Harrison, and Del. Rusty Webb, R-Kanawha, allowed the WV Division of Natural Resources to create their own in-house construction sections to build recreational facilities at state parks; and H. B. 2344, by Dels. Caputo, Prunty, Manchin, Hubbard, Hatfield, Boggs and Marshall, prohibited mandatory overtime after 40 hours in the workweek.

Although the mandatory prohibition of overtime did not pass, the Legislature did approve a resolution to study the effects of mandatory overtime on workers.

BILL STATUS

The status of all bills is available on the WV Legislature web site. Go to the CAWV web site at www.cawv.org, click on Legislative, and click on "contact your legislators." This will take you to the Legislature's web site.

THANKS TO ALL MEMBERS FOR TREMENDOUS EFFORTS !!!!!!!

Again, thanks to all CAWV members who spent time contacting your delegates and senators on issues affecting the contracting industry. Most of the bills the CAWV dealt with this session were resolved in the association's favor. This would not have been possible without your efforts.

If you have questions regarding any bill, please contact Mike Clowser at 304-342-1166 or email at mclowser@cawv.org.

LB 2001-9
Apr 13, 2001

KEY ISSUES COMING DOWN TO LAST MINUTES OF LEGISLATIVE SESSION

The regular 60-day session of the 75th West Virginia Legislature ends at midnight on Saturday, April 14. Gov. Wise has extended the session for one week but only for consideration of the budget. All bills must be passed by midnight or they are dead for this session.

There are a number of issues the CAWV is working on that will not be resolved until the final minutes. Below is synopsis of the status of key legislative issues as of press time. A complete wrap-up of this year's legislative session will be on the CAWV's home page early next week and will be included in the April 20 CAWV Newsletter.

INFRASTRUCTURE AND SCHOOL CONSTRUCTION FUNDING

The Senate Wednesday passed H.B. 2205, the gray machine bill, by a vote of 18-16. The key element for the CAWV is that the Senate version dedicates video lottery proceeds to infrastructure and school construction projects. The bill dedicates $25 million to the School Building Authority of WV which would provide debt service for a $200 million bond issue for school construction and renovation projects. It also places $25 million the first year and $50 million the second for the WV Infrastructure and Jobs Development Council for water, sewer and economic development projects. This could provide for over $200 million in additional funding for infrastructure projects.

The House's version of H.B. 2205 does not dedicate funding to infrastructure or school projects. The House bill uses gray machine proceeds for pay raises for teachers, school support personnel and state troopers. Because the two bills are different, a conference committee has been formed to resolve the differences. Senate leaders seem adamant on keeping the dedicated funding. House leaders do not believe in dedicating revenue to specific issues. They would rather see the revenues go to the general fund and then earmarked through the budget process. The CAWV will be working up to the last minute to maintain funding for school and infrastructure projects.

NICKEL GAS TAX IN CONFERENCE

Both houses passed S.B. 129 to reauthorize the nickel gasoline tax for another six years. An amendment was added in the House to determine how much tax is being collected in each county. The Senate is debating whether to accept or reject this amendment.

CORRECTIONAL FACILITY FUNDING PROGRESSING

The Senate is positioning to pass legislation that provides permanent financing of a new jail and the remaining juvenile detention facilities by issuing bonds by the West Virginia Economic Development Authority. This would complete the state's juvenile detention facilities around the state.

WV JOBS ACT IN HOUSE FINANCE COMMITTEE

A modified WV Jobs Act passed the Senate last week and the House Government Organization Committee this week. The bill is under consideration by the House Finance Committee. S.B. 103 would require all state funded projects to include a provision that 75 percent of the employees be from the local labor market — defined as every West Virginia resident and every resident of a county that is 75 miles from the West Virginia border. This is a pilot project that will be in effect for projects bid between September 1, 2001 and March 2003.

CM TAX ISSUE AWAITING HOUSE ACTION

S.B. 650 includes construction managers within the definition of contracting for consumers sales and use tax purposes. It passed the Senate 34-0 and it has been on Third Reading House Calendar all week. The House only acts on bills on the Special Calendar. The CAWV has been working to move the bill from the House to the Special Calendar.

ANTIDEG COMPROMISE REACHED

Following several days of intense negotiations between members of the Clean Water coalition, WV Division of Environmental Protection officials and the Governor's office, the Senate amended its version of the antidegradation legislation and approved it unanimously on Tuesday. The compromise addressed some of the concerns expressed by coalition members and gave DEP officials a comfort level that the policy would ultimately be approved by US EPA.

A major point of contention was the Tier 2.5 level of protection which DEP insisted be included in the final form of the bill. The compromise keeps 2.5 in the bill but includes a delisting process to allow businesses and property owners to demonstrate to DEP why certain streams should not be included on the Tier 2.5 list. The WV Division of Highways has been very involved in the negotiations to make sure that their environmental requirements and procedures are not superceded by the antideg requirements.

MARSHALL BUILDING, ROAD BOND AMENDMENTS WAITING APPROVAL

Marshall University wants authority to sell bonds to build a housing complex and parking garage. S.B. 517 gives them this authority but the bill is still waiting action by the House Finance Committee. The WV Division of Highways wants to issue the remaining $110 million of the $550 million Better Roads Amendment. The full Legislature must act on the bond issue. No problems are anticipated but time is drawing short and these bills need action.

LB 2001-8
Apr 6, 2001

LEGISLATURE BEGINS FINAL WEEK

Action this week was fast paced as legislators get ready for the final week of their 60-day session. All bills have to pass their house of origin by Saturday, April 7, so both the Senate and House worked split sessions this week to get their bills passed. Bills taking high priority this week were the governor's PROMISE scholarship program, gas tax reauthorization, gray machines, antidegradation and the WV Jobs Act. The House Education Committee this week eliminated funding for the PROMISE scholarship causing the governor to respond that he would not sign any budget that didn't contain funding for the program. House leaders crafted a new bill Thursday to restore funding for the program but changed the minimum eligibility for applicants for the scholarship program by lowering the ACT score from at least 21 to 18. The House is also set to vote today on the video poker bill. The funding mechanism has been altered to provide pay raises for teachers, school service personnel, State Police and other state employees. The governor had originally planned to fund infrastructure through the legalization of gray machines. This is still an option when the bill goes to conference committee. Attempts by opponents of gambling to ban gray machines altogether were not successful. Below is the status of key bills being tracked by the CAWV.

GAS TAX PASSES HOUSE BY WIDE MARGIN; IN SENATE, ALMOST UNANIMOUS

Following the Senate's 33-1 passage of the reauthorization of the nickel gas tax, House members Wednesday passed the bill by a vote of 88-12. While there was little discussion in the Senate, the House debated over an hour listing the pros and cons of extending the 5 cent tax. Delegates who spoke in favor of the bill often referred to facts and figures supplied by the CAWV and APA of WV. These included the progress that has been made to West Virginia's roads and bridges since the imposition of the nickel tax in 1993, jobs, economic development and safety. Many of these figures were derived from the study prepared by TRIP, The Road Information Program. Opponents of the bill spoke on an anti-tax theme without regard to West Virginia's highway needs.

The CAWV has expected the gas tax to pass but not by that wide a margin. Republican delegates initially expressed a no new tax stance, including the gas tax reauthorization. In the end, all Senate Republicans and 17 out of 25 House Republican members voted yes. The House did insert an amendment into S.B. 129 to determine how much gas tax is being collected in each county. A conference committee of the House and Senate will decide whether to keep or strike this amendment.

CONGRATULATIONS TO ALL THE MEMBERS WHO CONTACTED YOUR LEGISLATORS OVER THE PAST 60 DAYS! YOUR COMMITMENT TURNED MANY NO VOTES TO YES VOTES. PLEASE CONTACT YOUR LEGISLATORS AND THANK THEM FOR THEIR COMMITMENT TO BETTER ROADS, ECONOMIC DEVELOPMENT, JOBS AND SAFETY.

Delegates voting against S.B. 129 were:

NAYS - 12

Tim Armstead - R (Kanawha) Tom Louisos - D (Fayette)
J. D. Beane - D (Wood) John Overington - R (Berkeley)
Mitch Carmichael - R (Jackson) Charles Trump - R (Morgan)
John Ellem - R (Wood) Ron Walters - R (Kanawha)
Rebecca Mathews - D (Kanawha) Rusty Webb - R (Kanawha)
Steve Harrison - R (Kanawha) Lacy Wright - D (McDowell)

SENATE PASSES MODIFIED WV JOBS ACT BILL

The Senate Thursday passed S.B. 103, the WV Jobs Act, but in a very modified manner. The Senate Small Business Committee met all week to try to develop a compromise bill that would address the objections of the CAWV. The association has been successful in showing the onerous aspects of S.B. 103 and the impact the bill would have on the construction industry and economic development in West Virginia. The subcommittee made numerous changes including narrowing the scope of the projects that would fall under the aspects of the jobs bill and terminating the act after a two year study.

The major changes proposed by the subcommittee and approved by the full Senate include: Providing a two-year sunset provision; changing the definition of a local worker to include every resident of a county that is 75 miles from the West Virginia border; reducing the 90 percent hiring quota to 75 percent; raising the project limit from $25,000 to $500,000 before the act applies; modified the requirement for crews under 10 people; changing from 7 days to 3 days for the WV Employment Bureau to provide qualified local workers; eliminating the ability for people not hired to sue the contractor for lost wages; and setting up an independent third party to review the reports and analyze the effectiveness of the program. A major change was made late last week to include projects funded in part by the Economic Development Authority to the list of projects that would be covered by the jobs act. This would include private projects that have some type of taxpayer-funded incentives. It is not clear what impact this provision would have on economic development projects.

The CAWV and its executive director Mike Clowser were the subject of criticism this week by Sen. Bill Sharpe, D-Lewis. The senator thought that the CAWV had spoken in favor of the bill at the March 30 Small Business Committee and then withdrew that support at the April 3 Senate Finance Committee meeting. The CAWV Board of Directors was meeting on March 30 to determine its position on the bill and was not in attendance at the Small Business Committee meeting. The CAWV Board voted not to support S.B. 103, but not oppose providing the bill contains benchmarks by which to compare how many local workers are utilized on projects containing the hiring requirement verses projects that don't.
The CAWV communicated that position to various members of the House and Senate leadership following the board meeting but evidently all Senators were not aware of the association's position. The bill now goes to the House for review.

CONSTRUCTION MANAGEMENT BILL PASSES SENATE; HOUSE TO ACT NEXT WEEK

S. B. 650 passed the Senate Thursday by a vote of 34-0. The bill includes construction managers within the definition of contracting for consumers sales and use tax purposes. The bill is needed because State Tax Department legislative rules, developed over a decade ago, erroneously note that the activities of a construction manager do not constitute contracting and are, therefore, taxable under the 6 percent consumer sales tax. The bill passed in record time. It was introduced March 26 in the Senate, voted out of Senate Finance Committee on April 3 and passed by the full Senate April 5. A companion bill (H.B. 3145) was introduced in the House March 30 and was passed out of the House Finance Committee on April 3. The two bodies agreed to move the Senate bill which was sponsored by Senators Brooks McCabe, Oshel Craigo, Bill Sharpe and John Pat Fanning. The House will act early next week by passing the bill on to the governor for his signature.

AGREEMENT REACHED ON IF COUNCIL PROJECT THRESHOLD

STATE COULD FINISH BUILDING JUVENILE FACILITIES

West Virginia could fund all remaining juvenile detention facilities with the passage of H.B. 3156. The bill, introduced by Gov. Wise and passed by the House April 5, provides for the permanent financing of a new jail and the remaining juvenile detention facilities by issuing bonds by the West Virginia Economic Development Authority. Given the current bond market, Regional Jail Director Steve Canterbury estimates $80 million could be available for construction. This would guarantee the completion of juvenile facilities around the state plus have extra for other jail construction projects.

INFRASTRUCTURE, SCHOOL BONDS DISCUSSIONS CONTINUE

The House has passed H. J. R. 9 to place a $200 million constitutional amount on the November 2002 ballot to provide bonds for infrastructure projects. The amendment splits the funds among the state's 17 senatorial districts. The Senate will consider the amendment but it will probably change the funding allocation to the state's three congressional districts. The WV Infrastructure Council questions whether they could properly fund projects if the council had to split the funding between 17 senatorial districts. House leaders have expressed that voters may not be willing to vote for another bond amendment unless they could be guaranteed a return of funds to their county.

Various bills have been introduced to provide funding for the WV School Building Authority. S.B. 115 allows the SBA to issue another $100 million in bonds to continue its construction program. Other bills have been proposed including S.B. 89 which would dedicate about $5 million in racetrack lottery funds and S.B. 87 which would redirect school funds to high growth areas.
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RULES BILLS MOVING

Legislative rules for crane operators, design-build projects and quarry operations have been moving through the various committees. The CAWV and the respective agencies had reached an agreement on the proposed rules prior to them being introduced so most of the rules have had little debate.

The one exception is the quarry rules that needed amendments on backfilling, blasting signals and slope piles. The changes were made on two but not on the blasting signals. The WVDEP agreed to change the audible blasting warning from ½ mile to adjacent area. Del. Virginia Mahan, D-Summers, objected to this change and members of the House Judiciary Committee voted with her. The association has amended the rules in the Senate Judiciary Committee to at least make the requirement more realistic. The original language in 6.5.b.1 noted that "Each person in the permit area, and each person who resides or ‘regularly works' within one half mile of the permit area, shall be notified of the meaning of these signals." The industry is concerned that the term "regularly works" would require quarry operators to notify employees of businesses (Wal-Mart, car dealerships, office buildings, etc.), which would be an impossible task. The Senate Judiciary Committee changed the words to "business establishment." The industry still questions whether the one-half mile should be in the rules since the bill uses the term "adjacent" to the quarry. The association will continue to work on this issue.

NO COMPROMISE REACHED ON ANTIDEGRADATION POLICY

Representatives of the Clean Water coalition, the governor's office, WVDEP officials, House and Senate leadership and environmentalists have worked many hours this week to no avail to develop a compromise on the state's Antidegradation Implementation Policy. Coalition members have had numerous meetings with the administration and the governor's office. Many of the points have been resolved but there remains major issues of contention including the Tier 2.5 category. The coalition has continued to promote its version of an antideg bill in hopes of getting a balanced policy. Environmentalists continue to decry industry's version as the "dirty water" bill.

The House Judiciary Committee originated H.B. 3240 as a measure to continue debate on the policy for another year. The bill removes the rulemaking authority for the antideg policy from the Environmental Quality Board and vests it with the DEP, Office of Water Resources; gives the DEP emergency rulemaking power without first going to the Secretary of State for approval and gives no relief in circuit court; requires the chief of water resources to promulgate the emergency rule by July 1, 2001 that will be in effect upon filing; the emergency rule will be effective until March 8, 2003, or until modified, codified or abrogated by the Legislature; and the chief is to hold a least 6 public hearings. If this bill is passed and signed by the governor, the DEP will file their DEP bill as an emergency rule. Industry will then be operating under that rule until the legislature acts to modify, codify or abrogate according to the bill. US EPA, which has repeatedly stated it will not approve industry's bill, has told DEP it will approve its rule.

Industry is concerned that if H.B. 3240 is passed, it will be difficult to make changes to the rule since it will already be in place, at least for one year. The House is expected to vote on the bill today.

EASY WAY TO CONTACT LEGISLATORS

The easiest way to contact your Senators and Delegates is to click on the e-mail address below. This will take you to the legislative e-mail site. Just type in your senator(s) or delegate (s) name and type the message you wish to convey. Hit the send button and it will be delivered to your legislators. If you need talking points on any CAWV position, go to the CAWV Legislative Page on our web site at www.cawv.org or see past Legislative Bulletins.

cglagola@mail.wvnet.edu

Below is a list of bills that have been introduced this week that have an impact on the construction industry or some CAWV members. Anyone needing further information can contact Mike Clowser at 304-342-1166 or e-mail at mclowser@cawv.org.

SENATE BILLS

SB 586 Sen. Tomblin (Mr. President) - Raising threshold for bids on certain infrastructure construction projects - To Finance.

SB 619 Sen. Snyder - Using school building authority funding to lease school buildings from certain contractors - To Education then Finance.

SB 630 Sen. Snyder - Requiring national certification of building inspectors - to Judiciary.

SB 632 Sen. Snyder and Unger - Requiring commissioner of bureau of public health to promulgate emergency rules for design standards for private water well construction by certain date - to Health and Human Resources then Finance.

SB 637 Sen. Anderson, Ross, Minard, Unger, Kessler, Edgell, Sharpe, Mitchell, Caldwell, Deem, Boley, Minear, Sprouse, Fanning, Helmick, Snyder and Bowman - Exempting religious organizations from excise tax on certain fuels - To Finance.

SB 645 Sen. Snyder - Devoting portion of racetrack video lottery revenues to school building authority - To Judiciary then Finance.

SB 650 Sen. Craigo, McCabe, Fanning and Sharpe - Including construction management within definition of contracting for sales and use tax purposes - To Finance.

SB 692 Sen. Tomblin (Mr. President) and Chafin - Increasing allocation of state ceiling for certain private activity bonds - To Finance.

SB 693 Sen. Wooton and Bailey - Establishing Beckely-Raleigh County building code authority - To Government Organization.

SB 715 Sen. Craigo, Sharpe, Plymale, Love, Helmick, Bowman, Edgell, Unger and Sprouse (Originating in Senate Finance) - Expanding division of highways authority for collection and disposal of waste tires.

HOUSE BILLS

HB 3015 Del. Michael, Proudfoot, Douglas and Doyle - Relating to the power of the state rail authority to enter into contracts and agreements - To Roads and Transportation then Government Organization.

HB 3037 Del. Louisos - Relating to the sales price of gasoline and prohibiting wholesalers of cigarettes from offering discounts to retailers or consumers - To Judiciary.

HB 3042 Del. Staton and Amores - Relating to the selection process for certain architectural and engineering service contracts by the state - To Judiciary then Finance.

HB 3056 Del. Hrutkay, Dempsey, Butcher, Kuhn and Ferrell - Raising the threshold amount for competitive bids on certain infrastructure construction projects - To Finance.

HB 3063 Del. Kuhn, Butcher, Cann and Caputo - Removing obsolete language relating to disciplinary proceedings by the contractors licensing board - To Government Organization.

HB 3119 Del. Compton - Requiring the development of a state transportation plan - To Roads and Transportation.

HB 3145 Del. Staton, Doyle, Varner, Cann, Kominar, Browning and Michael - Relating to the definition of construction management for sales and use tax purposes - To Finance.

HB 3156 Mr. Speaker (Mr. Kiss) and Del. Trump [By Request of the Executive] - Providing permanent financing for the construction of new regional jail, juvenile detention and correctional facilities - To Finance.

HB 3229 Mr. Speaker (Mr. Kiss) and Del. Kuhn - Pilot project to evaluate the efficacy of requiring employment of residents of the local labor market in publicly funded construction projects - To Industry and Labor, Economic Development and Small Business then Finance.

HB 3240 Del. Mahan, Manuel, Amores, Wills, Smirl, Givens and Hrutkay (Originating in House Judiciary) - Authorizing the chief of water resources to promulgate a rule implementing a state antidegradation program.

LB 2001-7
Mar 30, 2001

DISCUSSIONS CONTINUE ON WV JOBS ACT BILL

The Senate Small Business Subcommittee on the WV Jobs Act has been meeting all week to try to develop a compromise bill that would address the objections of the CAWV. The association has been successful in showing the onerous aspects of S.B. 103 and the impact the bill would have the construction industry and economic development in West Virginia. The subcommittee has made numerous changes including narrowing the scope of the projects that would fall under the aspects of the jobs bill and terminating the act after a two year study.

The major changes proposed by the subcommittee include: Providing a two-year sunset provision; changing the definition of a local worker to include every resident of a county that is 75 miles from the West Virginia border; reducing the 90 percent hiring quota; raising the project limit from $25,000 to $500,000 before the act applies; modified the requirement for crews under 10 people; changing from 7 days to 3 days for the WV Employment Bureau to provide qualified local workers; eliminating the ability for people not hired to sue the contractor for lost wages; and setting up an independent third party to review the reports and analyze the effectiveness of the program. A major change was made late Wednesday to include projects funded in part by the Economic Development Authority to the list of projects that would be covered by the jobs act. This would include private projects that have some type of taxpayer-funded incentives. It is not clear what impact this provision would have on economic development projects.

The subcommittee proposal modifies S.B. 103 to the point that the CAWV Board of Directors will take under consideration whether the association will agree to a two year study program. The board will discuss the proposal at its upcoming meeting.

GAS TAX PASSES SENATE BY A VOTE OF 33 - 1

The reauthorization of the nickel gas tax was passed overwhelmingly in the Senate by a vote of 33-1. The Senate passed Monday S. B. 129 which continues the 5 cent gas tax for another six years. Thanks to all the members who contacted their Senators. The bill now goes to the House Finance committee for debate. There is a faction in the House that is opposing the tax reauthorization, which generates $55 million annually for the WV DOH.

MEMBERS ARE ASKED TO CONTACT THEIR DELEGATES URGING THEM TO VOTE YES ON THE NICKEL REAUTHORIZATION. FOR TALKING POINTS ON THE BILL AND THE REASONS TO SUPPORT, CLICK ON THE CAWV LEGISLATIVE PAGE ON THE CAWV WEBSITE AT CAWV.ORG.

CONSTRUCTION MANAGEMENT TAX CLARIFICATION BILL INTRODUCED

S. B. 650 would include construction managers within the definition of contracting for consumers sales and use tax purposes. The bill is needed because State Tax Department legislative rules, developed over a decade ago, erroneously note that the activities of a construction manager do not constitute contracting and are, therefore, taxable under the 6 percent consumer sales tax.

The Tax Department, in a March 9 ruling stemming from an audit of a firm that performs construction management activities, indicates that they believe construction management and construction activities are the same but since the approved legislative rules have the force on effect of a stature, the only recourse is through legislation.

S. B. 650, sponsored by Sens. Craigo, McCabe, Fanning and Sharpe, simply requires that CMs pay taxes in the same form and manner as every other construction firm.

MEMBERS INTERESTED IN THE BILL SHOULD CONTACT THEIR SENATORS URGING THEM TO SUPPORT S. B. 650. CALL OR E-MAIL YOUR SENATOR IMMEDIATELY.

cglagola@mail.wvnet.edu

AGREEMENT REACHED ON IF COUNCIL PROJECT THRESHOLD

Municipalities and other political subdivisions using WV Infrastructure Council funds can perform work with their own crews on construction and repair projects not exceeding a total cost of $50,000 by their regular full-time employees in an agreement reached between the association and legislative leaders. The original version of the bill eliminated the existing $25,000 limit to allow force account work on projects of any size. In the agreement S. B. 586 introduced by Senate President Earl Ray Tomblin, and H. B. 3056 by various delegates, caps the project size at $50,000 and providing that no more than $50,000 can be expanded on an individual project in a single location in a 12-month period. The bills go to their respective Finance Committees.

INFRASTRUCTURE, SCHOOL BONDS DISCUSSIONS CONTINUE

Infrastructure projects continue to be funded under the proposal to tax and regulated video lottery machines. The House Finance is poised to take up the bill next week. Operators have complained that the 50% tax rate is too high, especially in the start up years. If the legislature reduces the tax during start up, it will take a few extra years for the revenue to build up in the infrastructure fund.

A proposal to issue bonds for school building projects using lottery proceeds was defeated but there are other measures moving through the session that hopefully will provide funding for the WV School Building Authority.

RULES BILLS MOVING

SENATE BILLS

SB 586 Sen. Tomblin (Mr. President) - Raising threshold for bids on certain infrastructure construction projects - To Finance.

SB 619 Sen. Snyder - Using school building authority funding to lease school buildings from certain contractors - To Education then Finance.

SB 630 Sen. Snyder - Requiring national certification of building inspectors - to Judiciary.

SB 637 Sen. Anderson , Ross, Minard, Unger, Kessler, Edgell, Sharpe, Mitchell, Caldwell, Deem, Boley, Minear, Sprouse, Fanning, Helmick, Snyder and Bowman - Exempting religious organizations from excise tax on certain fuels - To Finance.

SB 645 Sen. Snyder - Devoting portion of racetrack video lottery revenues to school building authority - To Judiciary then Finance.

SB 650 Sen. Craigo, McCabe, Fanning and Sharpe - Including construction management within definition of contracting for sales and use tax purposes - To Finance.

SB 692 Sen. Tomblin (Mr. President) and Chafin - Increasing allocation of state ceiling for certain private activity bonds - To Finance.

HOUSE BILLS

HB 3015 Del. Michael, Proudfoot, Douglas and Doyle - relating to the power of the state rail authority to enter into contracts and agreements - To Roads and Transportation then Government Organization.

HB 3056 De. Hrutkay, Dempsey, Butcher, Kuhn and Ferrell - Raising the threshold amount for competitive bids on certain infrastructure construction projects - To Finance.

HB 3063 Del. Kuhn, Butcher, Cann and Caputo - Removing obsolete language relating to disciplinary proceedings by the contractors licensing board - To Government Organization.

HB 3119 Del. Compton - Requiring the development of a state transportation plan - To Roads and Transportation.

HB 3145 Del. Staton, Doyle, Varner, Cann, Kominar, Browning and Michael - Relating to the definition of construction management for sales and use tax purposes - To Finance.

HB 3056 De. Hrutkay, Dempsey, Butcher, Kuhn and Ferrell - Raising the threshold amount for competitive bids on certain infrastructure construction projects - To Finance.

HB 3063 Del. Kuhn, Butcher, Cann and Caputo - Removing obsolete language relating to disciplinary proceedings by the contractors licensing board - To Government Organization.

LB 2001-6
Mar 23, 2001

SENATE COMMITTEE ADVANCES GAS TAX

The Senate Finance Committee Thursday unanimously passed S. B. 129, a bill to reauthorize the nickel gas tax. The bill now goes to the full Senate where ratification is expected. A provision was inserted in the bill to terminate the tax on August 1, 2007. The industry had hoped there would be no sunset of the tax to avoid having to go through reauthorization again.

If the Senate passes the tax bill next week, it will go to the House Finance Committee for review. While there appears to be general support in the House for the bill, members should be contacting their delegates to seek their support.

The nickel tax generates $55 million annually for the WVDOH. If the bill does not pass, the WVDOH will have to: Cutout 6,000 lane miles of paving through 2003; or eliminate the small bridge program; or reduce the WVDOH's routine maintenance program by 24 percent. In reality, WVDOH will probably have to reduce all three items in order to make up for the loss of funds. To get a list of talking points on the gas tax to discuss with your delegates, see the Legislative Page on the CAWV home page at www.cawv.org.

GRAY MACHINES PASS FIRST HURDLE; INFRASTRUCTURE FINANCING ALTERED

The House Judiciary Committee Tuesday passed out Governor Wise's video lottery bill but not without a number of amendments. Committee members deliberated almost seven hours before passing the bill by a vote of 18 to 7. This surprised many veteran legislative observers who believed the margin of passage to be by a vote of 13 to 12. A major surprise came from new Delegate Lidella Hrutkay, D-Logan, who offered an amendment to fund various state, local and county programs using a portion of the funds dedicated to infrastructure projects.

The amendment takes 8 percent of the net terminal income from the infrastructure fund and uses it as follows: 4 percent to the PEIA Health Fund; 2 percent to the municipality in which the video machine is located. However, if the area is not incorporated, the 2 percent will go to the county commission in which the machine is listed; 1 percent to the county commission; and 1 percent to the county board of education. Since there is no clear estimate on how much revenue the video lottery machine will generate, it's unclear how much will be siphoned from the infrastructure fund.

The bill now goes to the House Finance Committee which must decide whether to dedicate the funds solely to infrastructure projects or accept Del. Hrutkay's amendment to use 8 percent of the funds for the various activities. Also in a surprise move, the Senate Judiciary Committee Thursday passed out the bill without amendments. This was done to get the bill to Senate Finance Committee where the majority of the work will be done on the bill.
BILL WOULD ALLOW MARSHALL UNIVERSITY TO BUILD HOUSING, PARKING GARAGE

H. B. 2951 would authorize universities to construct housing and parking garages with bonds. The purpose of the bill is to allow Marshall University to construct a 500 unit housing complex and a 1,000 car garage on the campus. Marshall officials believe that current code doesn't allow universities to fund parking facilities through general obligation bonds. This bill would give them specific authority to use bonds. A companion bill has been introduced in the Senate. (See this week's Building Bulletin for details on the projects.)

SCHOOL BOND PROPOSAL MOVING THROUGH LEGISLATIVE PROCESS

Governor Bob Wise's proposal to issue school construction bonds has moved through various education committees and will move to the Finance Committees in the House and Senate. The proposal would provide debt service on $100 million worth of bonds in 2001. Officials for the School Building Authority are hopeful another bond issue of approximately $150 million could be issued in 2004.

DEBATE CONTINUES ON JOBS ACT

House and Senate Committees held hearings this week on the WV Jobs Act, a proposal which requires contractors working on public works projects to hire 90 percent of their workforce from West Virginia. The bill has been introduced every year for the past eight years. Lawmakers have expressed interest in instituting a pilot project to study if West Virginians are being hired on school and highway construction projects. The CAWV has been involved in the debates to express the industry's concerns regarding a full fledge jobs act. Discussions will continue next week.

$110 MILLION ROAD BOND SALE ENDORSED

West Virginia will go to the bond market this year to sell about $110 million in road bonds if a proposal endorsed Thursday by the Senate Finance Committee becomes law. The committee unanimously approved the proposal, SRC 3, which would give state highways officials money they say is needed to finance existing construction costs. The bond sale, if approved by lawmakers, would be the final installment of $550 million in bonds authorized by West Virginia voters under the Safe Roads Amendment in 1996. The state has sold four allotments totaling $440 million since 1997, leaving the final $110 million uncommitted. State Transportation Secretary Fred VanKirk had initially suggested that lawmakers delay selling the bonds for a year. The move would have given the state Division of Highways time to attract more federal aid. At that time, VanKirk said he estimated that highways officials under former Gov. Cecil Underwood had committed about $15 million more than what was authorized to be spent on bond-funded projects. VanKirk later revised that to say the state was overcommitted by about $33 million and encouraged Gov. Bob Wise to seek legislative approval to sell the remaining bonds.

ANTIDEG NEGOTIATIONS APPROACH NEW MONDAY DEADLINE

House Judiciary Chairman Jon Amores has now set a deadline of Monday, March 26 for negotiations over new water quality/antidegradation rules among members of the Clean Water-Good Jobs coalition, state regulator and environmental activists. A key sticking point remains the breadth of a new "Tier 2.5" protection level for rivers and streams that would add new, expensive regulatory requirements for any new development or other economic activity along waterways so designated. Farmers, tourism companies, water associations, wastewater treatment operators, municipal governments and employers in more traditional industries believe that the 2.5 regulations would force them to spend so much money meeting the requirements for the activities that any growth would be cost prohibitive. Negotiations have focused on differences between the coalition proposal and a different one developed by the Division of Environmental Protection. DEP officials say its plan would set aside 2,006 miles of streams and rivers for Tier 2.5 protection. If the parties fail to find a compromise by Monday night, the Judiciary Committee will consider developing a proposal of its own or moving one of the two proposals on the table.

SENATE BILL PROHIBITS RETROACTIVE BUILDING CODES

S. B. 467 by Sen. Herb Snyder, D-Jefferson, amends the State Code on the statewide building codes to read: "Provided, however, that each county or municipality shall have the election to adopt the code to the extent that it is only prospective and not retroactive in its application." The bill is to prevent, upon adoption of the statewide building code by a county or municipality, that application of retroactive rules would create serious financial burdens on property owners. The bill has been referred to the Committee on Government Organization.

cglagola@mail.wvnet.edu

SENATE BILLS

SB 509 Sen. Snyder - Establishing certification of electrical inspectors - Energy, Industry and Mining

SB 517 Sen. Craigo - Authorizing financing of parking facilities constructed at institutions of higher education (FN) - Education then Finance.

HOUSE BILLS

HB 2887 Del. Manuel - Indoor Air Quality in Schools Act - To Education then Finance.

HB 2939 Del. Beach, Hubbard, Caputo and Fleischauer - Requiring persons who operate or maintain steam boilers and equipment by tested and licensed - To Industry and Labor, Economic Development and Small Business then Finance.

HB 2951 Mr. Speaker (Mr. Kiss), Del. Smirl and Morgan - Authorizing the building and operation of housing, food service and parking facilities for higher education students and teachers - To Education then Finance.

HB 2952 Del. Kuhn, tucker, Perdue and Douglas - Inspection of newly installed elevators - To Industry and Labor, Economic Development and Small Business then Finance.

HB 2963 Del. Ashley, G. White, Beane and Angotti - Eliminating countersignature requirements with respect to most types of insurance - To Judiciary.

HB 2964 Del. Caputo, Prunty and Manchin - Changing the amount a person can earn while receiving unemployment benefits - To Finance.

LB 2001-6
Mar 16, 2001

MAJOR LEGISLATIVE ISSUES UNRESOLVED AT HALF-WAY POINT

The WV Legislature hit the half-way point of its 60-day session this week with little resolve on the major issues before lawmakers. Minor bills have been debated and forwarded, including S.B. 124, the domestic steel bill promoted by Gov. Bob Wise in his State of the State address. The governor signed the bill this week saying it will help West Virginia's steel industry by requiring the use of domestic steel on all West Virginia construction projects. Much time has been spent behind the scenes on the governor's major proposals of regulating video machines, the PROMISE scholarship program and the tobacco tax. Legislators have been lukewarm on the governor's scholarship program due to the state of Georgia's scholarship program whose costs escalated from $20 million to over $100 million annually. Lawmakers have also expressed concern that regulating the gray machines only expands gambling within the state. Video owners have voiced opposition on the split of the revenues and on whether the machines can be owned by fraternal organizations. Gov. Wise has included $22 million in this year's budget from the regulation and taxation of the gray machines to fund his PROMISE scholarship program and infrastructure projects. With only four weeks left in the session, the pace will pick up greatly and these bills will start moving through committees next week.

Bills the CAWV is supporting or opposing have not been worked in committees but a lot of behind the scenes activities have taken place to promote the construction industry's viewpoint on a particular bill. Funding for infrastructure projects is being worked on a number of fronts. Half of the gray machines revenue could go towards water, sewer and school construction. There will also be bond amendments for water, sewer and school construction projects. However, lawmakers do not like the proposed language in the $100 million school bond amendment but they generally express support of concept.

It was hoped the nickel gas tax reauthorization would be taken up in the second week of the session and passed without much debate. The House was originally set to pass the tax first but now the Senate will take up the bill. There was a possibility that Senate Finance was going to pass the bill last week but we are now hoping it will be next week when discussions begin. CAWV members have done a tremendous job in contacting their senators and delegates on the need for the nickel reauthorization. If you have not personally contacted your legislators, please do so today.

The following is a synopsis of some of the issues affecting West Virginia's contracting industry. Anyone needing specific information on a piece of legislation can contact the CAWV office. Members are reminded you can get a daily update on any legislation by going to the CAWV web site at www.cawv.org and logging on the Legislative page. Click on the "Contact Your Legislators" icon which takes you to the WV Legislature's home page. Bill Tracking will allow you to get the latest information on a House or Senate bill.

JOBS ACT PUBLIC HEARING HELD MARCH 9

S.B. 103, the WV Jobs Act, received a public hearing on Friday, March 9 in the Senate Small Business Committee. Speaking for the bill were representatives of organized labor and Sen. Jon Blair Hunter, D- Monongalia, one of the main sponsors of the bill. Steve Roberts, president of the WV Chamber of Commerce, spoke against the bill on the grounds the bill affects private companies who are considering locating in West Virginia if they receive any type of government financed incentive. The CAWV did not speak to the constitutionality of the proposal nor fact the other states would retaliate against West Virginia firms: this argument has been made consistently for a number of years. Rather, the association addressed the technical problems inherent with the proposal and the problems that would be associated with administering the requirements.

The issues presented by the CAWV to Senate committee members include: The proponents of the bill cite an Appalachian Regional Commission policy that encourages contracting agencies to use local labor (defined for WV Division of Highways projects as those people living in a 75-mile radius of the project) on their projects. The proponents state the policy is a requirement. The CAWV correctly pointed out that the policy is only a recommendation, not a mandate; The 75-mile radius will be different on every project. A Weirton, WV contractor who regularly employs people from Steubenville, Ohio could take these employees to work on a project 75 miles from their home but couldn't work them on a project that was 76 miles from their home. Likewise, any other contractor in a border county who employs workers in surrounding states couldn't take them on a job that was 75 miles from their residence; Many contractors use specialty subcontractors that may or may not be located in West Virginia or 75 miles from the project; Meeting the 90 percent local hiring quota will be a moot point for contractors who have less than a nine person crew. If contractors only have 1 to 8 person crews, 100 percent of their employees must be from the local labor market; For contractors who can't find local workers, they must go to the local employment office and wait 7 days for workers to be found. Many owners and projects can't wait 7 days, plus it is highly unlikely that the employment office can provide the proper documentation in the designated time frame; For union contractors, their employees come out of the local hiring hall. In many cases, travelers from Tennessee, Georgia and other states are brought in to complement a contractor's workforce. Union contractors who cannot get workers from the local area will be forced to hire from the unemployment office; A major question still undefined is what agency will be in charge of administering and enforcing the jobs act; and probably the most onerous part of the bill is that any person who is denied a job can get an attorney to bring charges against the contractor. The contractor will have to pay all legal fees. This will be the beginning of many frivolous lawsuits against contractors.

There does not appear to be enough votes to pass S.B. 103 in its current form. Lawmakers have passed a pilot jobs act bill in the past and would probably have no problems in voting for one again. Legislative leaders have asked the CAWV to work with ACT Foundation to determine if there is any opportunity for compromise on the legislation. The CAWV Board of Directors is reviewing options and will make a determination on future action.

CRANE OPERATOR CERTIFICATION BILL TO BE REOPENED

An error in the crane operator certification bill passed last session will require the bill to be opened back up and changed. This will be the fourth time the crane bill has been revised. The problem is a technical problem that can be corrected with a one sentence change. When the bill was drafted, certain industries were exempted from having their crane operators certified, such as coal, manufacturing, quarry and timber operations. When the bill was modified for the third time last year to move the implementation date to September 21, 2001, a word was added which eliminates the exemptions as of September 1. This was not the intent of the bill and a bill will be introduced Tuesday in Senate Judiciary to correct the language. In a related issue, the crane operator certification rules are working their way through the Legislature and will be adopted by the end of the session.

RESOLUTION INTRODUCED TO STUDY MANDATORY OVERTIME

The House Industry and Labor Committee introduced a resolution to study the effects of working more than 40 hours a week. The resolution would require a year-long study of how workers are affected by working overtime. A resolution is usually requested by legislators who support an issue but are unable to get legislation passed to support their position. H.B. 2344, introduced again this year by Del. Mike Caputo, D- Marion, would prohibit employers from requiring mandatory overtime. There will be a public hearing by the Industry & Labor, Economic Development & Small Business Committee on Thursday, March 22 at 3:00 p.m. in the House Chamber.

NEGOTIATIONS BEGIN ON ANTIDEGRADATION POLICY

House Judiciary Chairman Jon Amores has assembled members of the Clean Water Good Jobs coalition, environmental advocates and state regulators for two weeks of negotiations over the state's antidegradation policy for water quality. Chairman Amores is hoping that the coalition and the environmental community will be able to negotiate an agreement rather than the two groups fighting for their own proposals before legislators. He has set a tentative deadline of March 23 for the talks so alternative options can be pursued if negotiations fail to produce an agreement. Negotiators will work from a proposal developed by the WV Division of Environmental Protection. DEP's proposal combines several issues included in the Environmental Quality Board's plan (widely panned by the coalition as being the most stringent plan in the nation) and a few of the coalition's plan. The CAWV has been a part of the coalition due to the detrimental impact on construction in West Virginia if the policy is not properly developed.

BILL CREATES INDEPENDENT TAX APPEAL BOARD

House Speaker Bob Kiss and Senate Finance Chairman Oshel Craigo have introduced companion bills to create a state board of tax appeals that would be independent of the state Tax Department. H.B. 2430 and S.B. 470 would replace the current system, which gives the state Tax Department primary authority to resolve disputes that taxpayers have with the department. Instead of having the department act as police officer, prosecutor, judge and jury in disputes with taxpayers, an independent state board of tax appeals would settle cases and determine the taxpayer's liability. H.B. 2430 is pending in the House Government Organization Committee. S.B. 470 has been referred to the Judiciary Committee.

The easiest way to contact your Senators is to click on the e-mail address below. This will take you to the legislative e-mail site. Just type in your senator(s) name and type the message you wish to convey. Hit the send button and it will be delivered to your legislators. If you need talking points on any CAWV position, go to the CAWV Legislative Page on our web site at www.cawv.org or see past Legislative Bulletins.

cglagola@mail.wvnet.edu

SENATE BILLS

SB 467 Sen. Snyder - Permitting counties and municipalities adopt prospective building code - Government Organization.

SJR 9 Sen. Sprouse, Boley, Minear, McKenzie and Facemyer - Proposing an amendment to Constitution designated Banning of Gray Machines Amendment - Judiciary.

HOUSE BILLS

HB 2877 Del. Staton, Amores, Trump, Fletcher and Browning - Establishment of stormwater systems within municipalities - To Political Subdivisions then Judiciary.

LB 2001-5
Mar 9, 2001

The WV Legislature has completed three weeks of its 60-day session with over 900 bills being introduced in the House and nearly 500 bills in the Senate. Legislators have spent much time on budget hearings and debating less controversial bills but this will change next week. The House Judiciary Committee is set to discuss Gov. Wise's proposal to regulate and tax video "gray" machines. The governor has included $22 million in his budget from gray machine revenues that would help fund his PROMISE scholarship program as well as provide funding for infrastructure projects. Legislators have expressed mixed emotions over what some say is expanding gambling in the state. Proponents of the measure say that there are over 20,000 machines already in place that operate without regulation or taxation. The governor's bill limits the number of machines to 9,000 and would place them in places that aren't accessible to under aged children.

Judiciary Committee members will also start negotiations on an Antidegradation Implementation Policy, a policy which will have dire consequences to future economic development in West Virginia if it is not developed properly. The environmental community has promoted a proposal that would make West Virginia's antideg policy one of the most stringent in the nation. The WV Division of Environmental Protection Friday presented its own version of a policy which incorporates some of both industry's and the environmental community's proposals.

Budget items will begin to come to the forefront as legislators start tackling the issues of school construction funding, the PEIA problem and whether or not to issue $4 billion in bonds to address the unfunded liability in the state's pension programs. Members will start receiving on a more regular basis legislative alerts on issues that affect CAWV members and the contracting industry. Members are encouraged to contact their legislators on issues important to contractors.

GAS TAX TO BE DEBATED IN SENATE; CONTACT YOUR SENATORS TODAY

The nickel gas tax reauthorization bill is now going to be debated in the Senate, not the House of Delegates as originally planned. Members have done a great job in contacting their delegates seeking their support for the gas tax. NOW is the time to contact your senators urging their support for the gas tax reauthorization. The Senate Finance Committee is expected to take up the bill the week of March 12. The latest debate is whether there should be another sunset provision in the gas tax, perhaps five years. The CAWV has emphasized to legislators the need for highway funding will be equal or greater in five years and that the present nickel gas tax should be made permanent. Legislators express that the tax was temporary when it was initiated in 1993 and that any continuation should be temporary as well.

The easiest way to contact your Senators is to click on the email address below. This will take you to the legislative e-mail site. Just type in your senator(s) name and type the message you wish to convey. Hit the send button and it will be delivered to your legislators. If you need talking points on the gas tax reauthorization, go to the CAWV Legislative Page on our web site at www.cawv.org or see the March 2 Legislative Bulletin.

cglagola@mail.wvnet.edu

TIME IS CRITICAL. PLEASE CONTACT YOUR SENATORS IN THE NEXT FEW DAYS. THANK YOU FOR YOUR HELP.

WV JOBS ACT INTRODUCED IN HOUSE

The WV Jobs Act has been introduced in the House. H.B. 2769, introduced by Dels. Marshall, Fleischauer, Caputo, Boggs, Williams, Martin and Leach, mirrors S. B. 103. This bill is referred to the Committee on Industry and Labor, Economic Development and Small Business then Finance.

BILL WOULD ALLOW FIRE MARSHAL TO FINGERPRINT BLASTING APPLICANTS

H. B. 2798 is a major rewrite to the State Fire Marshal regulations. One section gives the fire marshal the ability to require applicants for blasting and explosive permits to be fingerprinted for the purpose of performing a criminal background check. The fire marshal has informed the CAWV that fingerprinting would only be used as a last resort to determine if the applicant has a criminal record. If the check can be made without fingerprinting, this process would not be followed. The bill is referred to the Committee on Roads and Transportation then Finance.

LICENSING BOARD CAN IMPOSE SANCTIONS ON CONTRACTORS WHO HIRE ILLEGAL ALIENS

Contractors "knowingly employing a person or persons who do not have the legal right to be employed in the United states" could have disciplinary action taken against them by the WV Contractors Licensing Board under H. B. 2801. Contractors could have their licenses revoked, suspended, censured or limited if they knowingly hire illegal immigrants. The bill has been referred to the Committee on Industry and Labor, Economic Development and Small Business then Government Organization.

COMPETITIVE BIDDING THRESHOLD REMOVED ON INFRASTRUCTURE COUNCIL FINANCED PROJECTS

S. B. 413 removes the threshold amount for competitive bids on water and sewer projects financed by the WV Infrastructure Council. Currently, any project over $25,000 has to be put out through competitive bids. The bill eliminates the threshold if the work performed on construction or repair is done with a governmental entity's regular full-time employees. This bill passed the Senate last year and died on the House floor in the final minutes of the Legislative session. Proponents of the bill, including Senate President Earl Ray Tomblin, note that small projects could be performed by a public service district's or
municipality's regular employees without having to go to the competitive bid. The CAWV inserted the current language in the 1994 Infrastructure Council bill to prohibit such work being done by force account. The bill is referred to the Select Committee on Economic Development then the Committee on Finance.

WVDOH WOULD HAVE TO UTILIZE CONVICT LABOR

H. B. 2479 mandates that the WV Division of Highways employ felons to build and maintain West Virginia's highway system. The bill states the DOH "shall" use felons, not "may", which has always been in current code. The WVDOH had inmates working on a highway job when one of them escaped and assaulted a woman. The WVDOH lost a suit brought against the victim and ended paying up $500,000; another $500,000 was paid by the Division of Corrections.

RULES BILLS PROGRESSING

Various rule bills impacting the construction industry are moving through the legislature. Quarry, crane operator and Design-Build rules have been introduced and are being debated in their appropriate committees. The CAWV has worked during the past year to make sure rules accurately reflect the Association's concerns. Anyone wishing a copy of the rules can contact the CAWV office.

SENATE BILLS

SB 289 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing division of highways to promulgate legislative rules relating to transportation of hazardous wastes upon roads and highways - Transportation then Judiciary.

SB 298 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing department of administration to promulgate legislative rules relating to rules for selecting design- builders - Government Organization then Judiciary.

SB 305 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing board of architects to promulgate legislative rules relating to registration of architects - Government Organization then Judiciary.

SB 306 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing board of architects to promulgate legislative rules relating to fees for registration of architects - Government Organization then Finance then Judiciary.

SB 330 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing division of environmental protection to promulgate legislative rules relating to quarrying and reclamation - Energy, Industry and Mining then Judiciary.

SB 338 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing board of registration for professional engineers to promulgate legislative rules relating to rules of board - Energy, Industry and Mining then Finance then Judiciary.

SB 339 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing division of health to promulgate legislative rules relating to public water systems operators - Health and Human Resources then Judiciary.

SB 347 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing division of highways to promulgate legislative rules relating to waste tire remediation and environmental clean-up - Transportation then Finance then Judiciary.

SB 353 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing division of labor to promulgate legislative rules relating to crane operator certification act - Energy, Industry and Mining then Judiciary.

SB 354 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing division of labor to promulgate legislative rules relating to crane operator certification act -practical examination - Energy, Industry and Mining then Judiciary.

SB 381 Sen. Ross, Anderson, Minard, Snyder, Unger and Minear - Authorizing environmental quality board to promulgate legislative rules relating to governing water quality - Natural Resources then Judiciary.

SB 413 Sen. Chafin - Removing threshold amount for bids on certain infrastructure construction projects - Economic Development then Finance.

SB 417 Sen. Unger - Creating schools for growth counties fund (FN) - Education then Finance.

HOUSE BILLS

HB 2636 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Administration, design- builders - To Government Organization then Judiciary.

HB 2643 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Board of architects, registration - To Government Organization then Judiciary.

HB 2644 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Board of architects, registration fees - To Government Organization then Judiciary.

HB 2668 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - DEP, quarrying and reclamation - To Judiciary.

HB 2671 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - DEP, waste tire management - To Judiciary.

HB 2676 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Professional engineers, rules of the board - To Government Organization then Judiciary.

HB 2677 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Health, public water systems operators - To Health and Human Resources then Judiciary.

HB 2685 Del. Mahan, Wills, Cann Kominar, Faircloth and Riggs - Highways, waste tire clean-up - To Finance then Judiciary.

HB 2691 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Labor, crane operator certification act - To Industry and Labor, Economic Development and Small Business then Judiciary.

HB 2692 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Labor, crane operator certification examination - To Industry and Labor, Economic Development and Small Business then Judiciary.

HB 2719 Del. Mahan, Wills, Cann, Kominar, Faircloth and Riggs - Environmental quality board, water quality standards - To Judiciary.

HB 2725 Del. Frederick and Flanigan - Reducing the corporate net income tax - To Finance.

HB 2769 Del. Marshall, Fleischauer, Caputo, Boggs, Williams, Martin and Leach - West Virginia Jobs Act - To Industry and Labor, Economic Development and Small Business then Finance.

HB 2770 Del. Michael, Mezzatesta, Amores, Frederick, R. M. Thompson, Craig and Armstead - Requiring a jobs impact statement of certain proposed legislation - To Industry and Labor, Economic Development and Small Business then Finance.

HB 2798 Del. Mezzatesta, Michael, Stemple, Williams and Staton - Relating generally to the office of the state fire marshal - To Roads and Transportation then Finance.

HB 2799 Del. Michael, Mezzatesta and Proudfoot - Certification of electrical inspectors by the state fire marshal - To Judiciary then Finance.

HB 2801 Del. Tucker, Staton, Marshall, Varner, Caputo, Kuhn and Hubbard - Relating to knowingly employing persons who do not have the legal right to be employed in the United States - Industry and Labor, Economic Development and Small Business then Government Organization.

HB 2802 Del. Warner and Michael - Designating the commissioner of highways as the secretary of the department of transportation and requiring the commissioner to be an engineer - To Roads and Transportation then Finance.

LB 2001-4
Mar 2, 2001

CONTACT YOUR LEGISLATORS NOW ON GAS TAX REAUTHORIZATION!

A new wrinkle has arisen in the debate to reauthorize the nickel gas tax. Discussion now centers around placing another sunset provision in the gas tax rather than making the 5 cent gas tax permanent. Under this proposal, the Legislature, WVDOH and the construction industry would have to again visit this issue four or five years from now. The CAWV has emphasized that the need for highway funds will be as prevalent, if not more so, in the future. Stable funding is required for the state's transportation system, not just the continuation of a temporary revenue source.

Many members have called, e-mailed and written their delegates. Many delegates have noted they have heard from their constituents. If you have not contacted your delegate to urge their support for continuing the nickel gas tax, please do so today! It was hoped the House Finance Committee was going to take up the bill this week. We definitely hope it is in the coming week. Legislators need to hear from our members now on the crucial need for continued highway funding.

Members can view the February 23 CAWV Legislative Bulletin on the CAWV web site to get talking points on the gas tax bill. Below are additional talking points you can use when talking to your delegates. You can contact your legislators in a variety of ways. The most effective is to call them at their office (A list of office phone numbers was placed in last week's Newsletter). The easiest way is to click on the email address below. This will take you to the legislative e-mail site. Just type in your delegate(s) name and type the message you wish to convey. Hit the send button and it will be delivered to your legislators.

cglagola@mail.wvnet.edu

TIME IS CRITICAL. PLEASE CONTACT YOUR DELEGATES IN THE NEXT FEW DAYS. THANK YOU FOR YOUR HELP.

ADDITIONAL TALKING POINTS FOR NICKEL GAS TAX REAUTHORIZATION

The top three priorities of the WVDOH are (1) pay debt service on bonds (a legal obligation); (2) match all available federal aid; and (3) take care of all overhead (salaries and facilities) for the WVDOH, including Department of Motor Vehicles.

Failure to renew the nickel gas tax represents a loss of 10-percent of our state road fund revenues. This $55 million annual loss would not impact any of the WVDOH top three priorities.

Loss of this nickel would, however, impact the highway services of every West Virginian. These state funds are used for the types of projects that touch the most citizens - paving state and county roads and repair of small bridges. It would very likely impact local maintenance activities in the counties.

West Virginians rely on our road systems for basic mobility - the ability to go to work and school. Good roads are obviously essential for economic development. The citizens of our state ar