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LB 2011 - 03

January 31, 2011


Following the Supreme Court ruling last week, Acting Governor Earl Ray Tomblin introduced legislation this week calling a for special primary election to be held in May to fill the unexpired term of Joe Manchin.  He also issued a proclamation stating the general election will be held October 4.  The high court ruled that there must be an election within one year of Manchin becoming U.S. Senator, which was November 15, 2010.  The October 4 date was set to give election officials 30 days to certify election results. The state Supreme Court also wrote that the Republican and Democrat nominees could be chosen through their respective conventions but gave the legislature the ability to conduct a primary election if it so chooses.  The Senate and business groups have called for a primary election as a way to provide transparency to the election process.  AFL-CIO has come out in support of the convention process.   The convention process will occur unless the House and Senate pass the bill calling for a primary election.




President Obama’s State of the Union address Tuesday referenced the importance of infrastructure to the nation and economy. As in the past, the mention of infrastructure investment came without any reference to funding. The Administration and Congress are on a collision course over the question of funding as Republicans want to cut existing funding levels.  The Republican goal is to reduce funding for domestic programs (including State Revolving Fund programs for wastewater and drinking water) to 2006 levels. Two years ago, the Administration and Congress increased funding for the SRF Program by nearly 300 percent. To return to 2006 funding levels would be devastating for the Program.  The President has proposed a freeze at current funding levels for the next five years.


Despite the documented needs for funding for highways, there is still much reluctance on the part of federal and state legislators to make a commitment to additional highway funding.  While Congress does not have an appetite to raise the federal gas tax, there was hope this year that there would be an increase in West Virginia registration and licensing fees, which have not been raised since the 1970s.  Depending on what fees are increased, between $35 million and $60 million in new revenue would be generated.  With a special election for governor a definite this year, gubernatorial hopefuls who currently sit in the legislature are not enthusiastic about having to vote for tax or fee increases.




The chairmen of the House Energy, Industry and Labor, Economic Development and Small Business Committee have placed H.B. 2524 in a subcommittee for review and debate.  The bill requires every worker on a public works project over $1,000 to have completed the OSHA 10-hour program prior to beginning work.  Committee members have gotten calls from contractors who are opposed to the legislation which prompted the bill to be taken off the committee’s January 26 agenda.  The subcommittee is chaired by Dale Martin, D-Putnam.  Also serving on the subcommittee are Greg Butcher, D-Logan, David Walker, D-Clay, Troy Andes, R-Putnam, and Erikka Storch, R-Ohio.  The subcommittee will meet with supporters and opponents of the bill to determine if there is room for compromise. For more on the bill, see the January 24 CAWV Legislative Bulletin. 



S.B. 282 and H.B. 2861 extends the West Virginia Division of Highways Design-Build pilot program until June 2013.  The current pilot program, which gives the WVDOH the ability to perform ten projects using the design-build method of procurement, is set to expire in June 2011.  To date, the DOH has awarded or advertised about three of the ten projects. There was some discussion of introducing a bill to make the use of design-build permanent.  The CAWV, in discussions with the Tomblin Administration, agreed to extend the time frame to allow for the completion of the remaining projects.  The House bill goes to Government Organization then Finance. The Senate bill goes to Transportation and Infrastructure then Finance.




S.B.203  requires contractors to submit a list of their subcontractors within two hours of a bid opening to the contracting agency or risk being declared irregular.  While the bill only pertains to the low bidder, all bidders may be required to submit their subs list.  On projects where there are alternates, the low bidder may not be apparent, based on which alternates are selected.  In order for contractors’ bids to be responsive, all bidders who may ultimately be declared the low, responsive bidder will have to submit their sub list within two hours.  Currently, the School Building Authority of WV is the only agency that has such a policy. Projects through the state are putting this requirement in on select projects.   S.B  203 would require all public agencies to mandate this policy. 


Building contractors are used to having the two-hour requirement in the bidding documents. Highway contractors have noted that, during the construction season, they could bid anywhere between 25 and 50 jobs in one highway letting, placing a hardship in getting in a sub list within the allotted time.  The bill has a single reference to Senate Judiciary Committee.




H.B. 2144, introduced by Dels. Caputo, Talbott and Hatfield, would require that each state public works contract include a provision requiring a definitive completion date and that contractors awarded such contracts be required to meet the time restriction.  Contractors not meeting the completion date would be assessed a penalty of $1,000 per day for every day late.  Change orders could not be granted which exceed 20 percent of the contract price.  Contractors could receive extensions only in the event of an unforeseeable emergency, for changes made by the public agency, or because of “fortuitous existence of extreme inclement weather conditions.”  The bill is referred to the Committee on Industry and Labor, Economic Development and Small Business then Government Organization.




The Obama administration has laid out an ambitious initiative to purify 60 percent of the Chesapeake Bay’s waters within 15 years, combining federal resources with a mandate that says states in the 64,000-square-mile watershed must develop the regulatory blueprint.  “We plan to devote unprecedented resources to this,” U.S. EPA Administrator Lisa Jackson said in May 2010.   EPA estimates about 300 million pounds of pollution flow into the bay each day from farm fields and livestock, lawns and paved development, sewage plants and airborne pollutants.  EPA estimates that reducing that flow to 175 million pounds would increase water clarity and stimulate growth of aquatic life.


EPA has signed an agreement that will require the six watershed states and the District of Columbia to come up with pollutant reductions that bring them into compliance with those goals.  Each jurisdiction could propose its own regulations for developers, farmers, homeowners, sewage treatment plants and other polluters. Getting farm runoff commitment is the big step, EPA notes.   

S.B. 245, introduced January 24 in the Judiciary Committee with reference to Finance, establishes West Virginia’s program to provide financial assistance to wastewater treatment facilities that feed into the Chesapeake Bay that are required to meet the stringent nutrient standards imposed by EPA. 


The estimate to upgrade facilities in the eastern part of West Virginia is over $250 million.  S.B. 245 proposes to increase from $40 million to $46 million the annual excess lottery proceeds to the West Virginia Infrastructure Council.  The Water Development Authority would use the $6 million to set up a separate account that would pay debt service on bonds issued for projects designed to improve the Chesapeake Bay water quality.  The $6 million annual expenditure could support about $180 million worth of bonds that would be used to provide grants to state municipalities and public service districts for improvements to public wastewater treatment facilities.




As noted in last week’s Legislative Bulletin, every regulation or policy developed by agencies that affects the public must go before the Legislative Rule-Making Review Committee.  Members of the committee must determine whether a state agency has exceeded the scope of its statutory authority, whether the proposed rule conforms to legislative intent and whether it conflicts with state code or another rule.  The committee also looks to see if the proposed rule is necessary, reasonable or could be made less complex.  The Senate Labor Committee this week reviewed rule changes to the Crane Operator Certification Act.  Last year, the definition for cranes was expanded to include tower cranes. The rules presented by the West Virginia Division of Labor make this change as well as delete the obsolete section which grandfathered crane operators when the bill first passed in 1999.  The rules also adds references to American Society of Mechanical Engineers standards.




House and Senate bills can be accessed from the CAWV’s Legislative home page at  Members can view status updates on bills of interest to the construction industry and see what legislation is introduced that affects the construction industry.  A summary of each day’s activities will be uploaded each afternoon.


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 email




HB 2837          By Mr. Speaker (Mr. Thompson) and Del. Armstead [By Request of the Executive]-Authorizing an exemption from consumers sales and service tax and use tax for qualified purchases (FN)-To Energy, Industry and Labor, Economic Development and Small Business then Finance.


HB 2852          By Mr. Speaker (Mr. Thompson) [By Request of the Executive]-Relating to the West Virginia Tax Increment Financing Act-To Political Subdivisions then Finance.


HB 2853          By Mr. Speaker (Mr. Thompson) and Del. Armstead [By Request of the Executive]-Providing for a special primary and general election to fill a vacancy in the office of Governor-To Judiciary then Finance.


HB 2859          Del. Frazier, Poore, Manypenny, Barker, Hunt, Caputo, Pino, Longstreth, Wells and Moore-Relating to the Public Service Commission-To Government Organization then Judiciary.


HB 2861          Del. Martin, Caputo, Ferro and D. Poling [By Request of the Transportation Department-Division of Highways]-Continuing the pilot design-build program-To Government Organization then Finance. 

HB 2862          Del. Walters, Nelson, Stowers, Kominar, Martin, Lane, White, T. Campbell, Hartman, Reynolds and Cann-Allowing a deduction for all capital expenditures from corporate net income tax (FN)-To Finance.


HB 2871          Del. Lawrence and Doyle-Relating to brownfield economic development districts-To Political Subdivisions then Finance.


HB 2886          Del. Householder, Overington, J. Miller, Gearheart, Michael, Cowles and Kump-Relating to the calculation of prevailing wages-To Energy, Industry and Labor, Economic Development and Small Business then Judiciary.


HB 2890          Del. Ashley and Manchin-Energy Efficient Building Act (FN)-To Energy, Industry and Labor, Economic Development and Small Business then Finance.


HB 2930          Del. Martin, Wells, Ashley and Hall [By Request of the Transportation Department-Division of Highways]-Safe and Efficient Parkways Act-To Roads and Transportation then Judiciary.




SB 247             Sen. Kessler (Acting President) and Hall [By Request of the Executive]-Exempting certain construction purchases from consumers sales, service and use tax (FN)-To Economic Development then Finance.


SB 249             Sen. McCabe and Browning-Creating WV Manufacturing Competitiveness and Growth Act (FN)-To Economic Development then Finance.


SB 261             Sen. Kessler (Acting President) and Hall [By Request of the Executive]-Providing for special primary and general election to fill vacancy in office of Governor-To Judiciary then Finance.


SB 272             Sen. Kessler (Acting President) and Hall [By Request of the Executive]-Relating to WV Tax Increment Financing Act-To Energy, Industry and Mining then Finance.


SB 282             Sen. Beach, Snyder, Laird, Yost and Green-Continuing highway design-build pilot program-To Transportation and Infrastructure then Finance.


SB 289             Sen. Minard, Snyder, Prezioso, Unger, Boley and K. Facemyer-Authorizing DEP promulgate legislative rule relating to permits for construction and major modification of major stationary sources of air pollution for prevention of significant deterioration-To Energy, Industry and Mining then Judiciary.


SB 291             Sen. Minard, Snyder, Prezioso, Unger, Boley and K. Facemyer-Authorizing DEP promulgate legislative rule relating to explosives and blasting-To Energy, Industry and Mining then Judiciary.


SB 305             Sen. Miller and Wills-Authorizing county and municipal governments to levy tax on food and beverages-To Government Organization then Finance.


SB 314             Sen. Kessler (Acting President)-Creating Natural Gas Resources Transportation Road System-To Transporation and Infrastructure then Finance.


SB 333             Sen. Beach, Klempa, Minard and Williams-Authorizing electronic collection and enforcement of tolls-To Transportation and Infrastructure then Finance.


SB 336             Sen. McCabe-Creating Energy Efficient Buildings Program Act-To Government Organization then Finance.


SB 339             Sen. Palumbo-Authorizing final payment of wages of separated employees at regular pay periods-To Labor then Finance.