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April 6, 2009


The 2009 regular session of the West Virginia Legislature is in its final week, although there is discussion between the governor and legislators that the session may not adjourn at midnight on Saturday, April 11.  Instead, the legislature may postpone work on a budget until May when the governor will have an idea of whether April revenues meet projections.  Governor Manchin has already proposed cutting $200 million out of next year’s budget based on revenues coming in under estimates.  Waiting until May to finalize a budget will give the administration and lawmakers a better idea of the state’s financial picture. Lawmakers will finish work this week on legislation that has been working its way through the 60-day session. 




As noted in the April 3 CAWV Legislative Alert, the Senate passed – by a vote of 34-0 – S.B. 680 which freezes the current wholesale gas tax at 11.7 cents which could, if gasoline prices stay somewhat stable in 2009, reduce 3 cents to 5 cents in 2010.  The House Roads and Transportation Committee this morning passed out the bill on a voice vote.  The bill now goes to the House Finance Committee which must pass the bill out by Wednesday so it can be read three separate days.  There were two amendments to the bill in the roads committee.  One would have allowed the gas tax to be frozen if it had gone up and continue to keep the General Fund transfer in place past 2010.  When the legislature froze the wholesale tax at 11.7 cents for 2010, a provision was put in to transfer up to $40 million from the state’s General Fund to the State Road Fund when gas tax revenues dropped below estimates.  The DOH has received about $12 million in a General Fund transfer but gas tax receipts are now above revenue estimates by about $3 million through the end of March.  There is no guarantee that the DOH will be able to utilize General Funds for the remainder of the year.  Another amendment would have dedicated money from the wholesale tax to various projects.  The amendment identified eight projects – such as routes 9 and 10, Coalfields Expressway, King Coal Highway, Route 35, Corridor H – to each received one cent of the 11.7 cents tax.  The amendment’s sponsor, Del. Daniel Hall, D-Wyoming, said this was a good way to get these projects finished so they could be completed in a more timely manner.  Both amendments were defeated in committee.


CAWV members are encouraged to continue calling their delegates encouraging them to vote yes on S.B. 680.




The Senate has passed S.B. 246, which will impose new assessments and tax increases on employers and employees. The funds will be used to shore up the state’s unemployment compensation program.  S.B. 246 raises the unemployment compensation wage threshold from $8,000 to $12,000 until the unemployment comp trust fund balance reaches $220 million when the wage base will be $10,000.  After July 1, 2009, if the fund dips below $180 million, a temporary solvency assessment of .075 of one percent will be imposed on all employees and .25 of one percent will be assessed to employers.  Governor Manchin has introduced the bill in light of the rising unemployment in West Virginia.  The current trust fund balance is approximately $200.5 million.  The bill is expected to double the current unemployment compensation tax collected by the state. The business community continues to work on the bill to reduce the tax on the employer community.  One proposal is to use part of the state’s “Rainy Day Fund” to shore up the unemployment comp fund until there is a clear picture of the state’s future economic situation.  House Minority Leader Tim Armstead, R-Kanawha, has asked for a public hearing in the House, possibly to be held later today.






S.B. 251 authorizes county commissions, municipalities and boards of education that receive lottery revenues to issue bonds secured by such lottery revenues to construct public projects. This will allow county commissions, municipalities and boards of education to construct more public projects which creates jobs and stimulates the economy. The bill is patterned after the bill that gave the School Building Authority the ability to use its annual lottery proceeds to pay debt service on bonds.  Almost every county and municipality gets some amount of lottery proceeds, but in such small amounts that they can’t fund capital improvement projects.   By allowing the annual allocation to be used for bonding, public agencies could see bonds to construct a major project.  The bill has passed the House Political Subdivisions Committee and now goes to House Finance.




H.B. 3076 adds tower cranes to the current crane operator certification requirements.  Most all of the language in the introduced version of the bill was struck in House Judiciary Committee and the bill limits itself to adding tower crane to the list of cranes.  The bill does change the certification categories language but it will not require anybody who is currently certified to make any changes in their operators licenses.  The old and new language for certification categories is as follows:


“Certification categories that must include including lattice boom truck cranes; lattice boom crawler cranes; small telescoping boom cranes, with a lifting capacity of at least five tons but not more than seventeen and one-half tons fixed cab-telescoping boom cranes; swing cab-telescoping boom cranes; and tower cranes. Provided, That the holders of a certification for the large telescoping boom crane upon application for recertification will be provided with a one time election to either be certified as an operator of a fixed-cab or swing-cab telescoping boom crane, and that holders of a certification for the small telescoping boom crane, upon application for recertification, will be automatically certified as a fixed cab operator.


Crane operators who are presently certified in the small or large telescoping cranes can automatically have their certification transferred to correspond with the new definitions.  Current operators will not have to do anything except select whether they will have a fixed-cab or swing-cab classification, or both if they currently hold more than one classification. The bill passed the Senate Judiciary Committee and will be on the full Senate agenda this week.




The Senate Government Organization Committee last week introduced, followed by passage by the full Senate, S.B. 766, relating to engineering services for water and sewer projects.  The stated purpose of the bill is to require that engineering firms receiving contracts for projects funded by the West Virginia Infrastructure and Jobs Development Council be prequalified by the council and that a contract entered into by a prequalified firm be reviewed and approved by the Infrastructure Council. The bill further provides that prior to entering into a contract for engineering services, the state or its political subdivisions must notify the council of the proposed contract.  Once notified, the council must review the proposed contract and may, at their discretion, assist in the scope of service or price negotiations. 


Under S.B. 766, no contract for engineering services funded by the Infrastructure Council may be awarded until the council has approved the substance of the contract, including, but not limited to, scope and price.  An amendment was added that states, “... the Regional Councils shall administer and have control over local sewer and/or water infrastructure in their respective regions ... to ensure cost effective and timely project completion....”  Municipalities and public service districts are objecting to this amendment, stating that it creates another layer of bureaucracy in the design and construction of water and sewer projects.  The bill has been referred to the House Judiciary Committee with a second reference to Finance.




The House Judiciary Committee is now charged with reviewing S.B. 537, a bill which deals with a number of issues affecting the workers’ compensation program.   One version of the bill would have made prime contractors liable for any claims made by employees of a subcontractor on their project if the subcontractor let their workers’ comp coverage lapse.  After much discussion between the business community and the Insurance Commission, the bill was amended to make the prime only responsible for a subcontractor with whom there is a direct contract.  This version still posed problems as a prime may not be notified for 30 to 45 days that a sub has gone into default, making the prime liable for claims made by an injured employee of a subcontractor.   An amendment by Sen. Don Caruth, R-Mercer, protects the prime contractor in the event they do their due diligence and obtain a certificate of insurance from their subcontractors.  Floor amendments in the Senate continue to make this a discussion for the business community.  Work will continue in the House Judiciary Committee.




The House passed H.B. 2771, a bill to amend the state’s drug and alcohol testing program for contractors working on public works construction projects.  The bill is now in Senate Judiciary Committee. The bill expands the drug and alcohol testing program to projects performed by a political subdivision of the state – cities, counties, public service districts and other governmental entities.  The bill addresses a number of issues sought by the CAWV, including requiring contractors to have two programs, one for CDL purposes and another for all other employees. It also allows contractors to accept an employee’s drug test if it has been performed in the previous twelve months and gives employers the ability to hire people on a temporary basis. As the bill currently stands, employers who have three violations could be barred from bidding work for one year, even though the third violation may be twenty years after the second violation.  H.B. 2771 also wipes an employer’s record clean if there are no violations within the preceding five years.


The bill also requires contractors to report to the awarding agency at the end of the project the following:

Indication employees have received training on how to detect drug and alcohol abuse, the name of the testing laboratory, average number of employees on the particular project, number of positive and negative tests, and random tests performed.




Barring an extension to continue work on next fiscal year’s budget (see above), the West Virginia Legislature will end its 60-day regular session at midnight on Saturday, April 11.  All bills will have had to pass both houses and any differences between the House-passed and Senate-passed versions will need to be agreed upon if the bill is to go to the governor.  Last Wednesday was “cross-over” day, the day that each bill had to pass its house of origin in order to continue through the legislative process.   In the Senate, 204 bills were passed and sent to the House.  In the House, 175 bills received approval that will now go the Senate for further debate.


A complete wrap-up of bills of importance to CAWV members and the construction industry will be sent to members next week.  West Virginia Public Broadcasting will not be televising live the final hours of this year’s legislative session.  Lack of sponsors, plus the fact that a 6 p.m. deadline Saturday for receiving conference committee reports has eliminated the last minute rush to get bills passed before the midnight deadline.




Bills needed to have passed their house of origin last week in order to continue in the legislative process. Several bills the CAWV has been watching closely are effectively “dead” this session. H.B. 2478, requiring contractors working on public works projects to provide health insurance for their employees, will not pass this year.  Another bill, H.B. 2923 which requires contractors to submit a list of their subcontractors within two hours of bid opening, did not come out of committee.  A bill that would have required the use of E-Verify, H.B. 2871, also did not pass out of committee. S.B. 699, relating to properly apportioning the percentage of fault to all defendants whose conduct caused an incident, injury or damages at issue in a case –  or the joint and several liability bill –  did not pass out of the Senate Judiciary Committee.


Below is a partial list of bills the CAWV has been tracking that have passed their house of origin.  The Senate will be debating House bills this week and the House, Senate bills.  Anyone having a specific questions can call the CAWV at 304-342-1166 or email Mike Clowser at




HB 2403          Updating the law governing professional licensing boards in general-To Government Organization


HB 2411          Requiring that workplace fatalities be reported to Division of Labor- To Labor


HB 2686          Requiring ten minute rest periods for employees during each four hours of work-To Labor


HB 2753          Relating to the continuation of the Design-Build program-To Finance


HB 2771          Relating to West Virginia Alcohol and Drug-Free Workplace Act-To Judiciary


HB 2781          Providing a tax credit to sawmills that become certified in the Leadership in Energy and Environmental Design Green Building Rating System-To Finance


HB 2863          Relating to construction of state utility projects-To Judiciary


HB 2976          Requiring the State Fire Commission to promulgate rules pertaining to the State Building Code-To Judiciary


HB 3066          Clarifying the supervision requirements for elevator apprentices under elevator safety-To Labor


HB 3076          Relating to the regulation and operation of cranes-To Judiciary


HB 3276          Amending the professional surveyors act-To Judiciary




SB 45               Authorizing Department of Environmental Protection Secretary to sign National Pollutant Discharge Elimination-To Judiciary


SB 63               Increasing deposit from State Excess Lottery Revenue Fund to Higher Education Fund-To Finance


SB 239             Allowing majority vote for certain metro government approval-To Judiciary


SB 243             Relating to issuing general obligation bonds-To Finance


SB 246             Relating to unemployment compensation generally-To Finance


SB 251            Authorizing issuance of revenues bonds for public projects-To Finance


SB 262             Removing prohibition against using county’s General Revenue Fund for historic preservation-To Finance


SB 299             Relating to Infrastructure Fund projects-To Finance


SB 328             Creating WV Transportation Finance Commission-To Finance


SB 403             Making supplemental appropriation from State Road Fund to Department of Transportation-To Government Organization


SB 537             Relating to workers’ compensation-To Judiciary


SB 561             Requiring county land surveyors be licensed-To Judiciary


SB 638             Relating to higher education capital facilities-To Education


SB 645             Relating to municipalities and counties issuing bonds-To Finance


SB 666             Relating to community enhancement districts-To Energy, Industry and Labor then Economic Development and Small Business


SB 680             Establishing 2010 calendar year average motor fuel wholesale price-To Roads & Transportation


SB 698             Authorizing certain regional water and wastewater authorities provide joint maintenance to participating agencies-To Government Organization


SB 753             Relating to land development ordinances-To Judiciary


SB 766             Relating to certain sewer and water infrastructure projects’ engineering services-To Judiciary