Legislative Update – Week #3

It’s the third week of the Legislature and quite a few bills we are following hit committee agendas and were voted on in both chambers. We have compiled a list of bills we’re following, both good and bad, and we will continue to update this list as we go. Read more below to see what’s happening!

Bills that moved this week:

Coal Mining Bond Insurance 

SB 1 – Creating Mining Mutual Insurance Company 

Sponsored By: Sen. Blair (Mr. President) Baldwin, Jeffries, Stollings, Hamilton, Lindsay, Woodrum, Plymale, Takubo

Last Action: Passed the Senate 32:0, Referred to House Energy and Manufacturing 1/27/22 

This bill is designed to set up a mining mutual insurance company intended to provide: “An option for mining permit holders to obtain performance bond insurance that is available and affordable; and assure that reclamation will occur in a timely and predictable fashion in those instances where a permit holder fails to perform under the terms of the permit issued.” The bill states, however, that the WVDEP will have to transfer $50 million into the fund, but DEP’s Cabinet Secretary Ward stated during a Committee meeting that they do not have that money in their budget. 

We oppose this bill because it requires a $50 million surplus to begin its operations, and this is coming from tax-payer dollars. Our citizens should not be footing the bill for outrageous reclamation costs that coal mining companies have left behind. While we would like to see higher bonding rates for coal mining companies to cover all reclamation costs, we’re not in support of tax-payer funded bailouts for the coal industry. 

Water Quality Standards Rule

SB 279: DEP rule relating to requirements governing water quality standards (Sypolt; Judiciary)

Sponsor: Sen. Sypolt

Last Action: This rule was bundled into DEP rules (formerly SB 284), will be on Third Reading in the Senate on Monday, January 31.

These two bills are the water quality standards rules that include 35 human health criteria updates, as well as a new paragraph that would allow industry to make changes to water quality standards and bypass legislative review. We’re concerned about this change as it creates a loophole for industry to weaken water quality standards without thorough review and scrutiny from the public and legislature. 

According to WV Rivers Coalition, this loophole creates a process for “the industry to petition the state agency for a site-specific human health criteria that would result in increased toxic discharges by a single petitioning facility.” This change gives the agency and the public a 45-day period to respond, instead of the longer, more-thorough process set forth by the Clean Water Act. 

During the Senate Judiciary Committee on Tuesday, Senator Lindsay offered an amendment to restore the legislative review provision within paragraph 8.2.c. for site specific water quality changes. Despite lengthy discussion among various members, however, the amendment failed, but did receive bipartisan support. The WQS Rule was bundled into a new bill number and will be up for a vote in the full Senate on Monday. 

Nuclear Energy

HB 2882 – Relating to repealing a ban on construction of nuclear power plants

Sponsors: Steele, Wamsley, Foster, Young, Keaton, Martin, Westfall, Zatezalo, Maynor, Ward, B.

Last Action: Placed on House Calendar Thursday. SB 4 is up for a vote on Monday, January 31

This is the sister bill of SB 4, which has already passed the Senate, and HB 2882 has been on the House Calendar on Second Reading since Thursday, January 27. We’re expecting SB 4 to be voted on Monday in the House. 

There was a public hearing requested on Monday, January 24, as the bill was placed on the Government Organization Committee agenda. Public hearings cannot be requested until a bill is placed on an agenda, but must be requested before the committee meets. With the public hearing granted for today at 10am both bills were already assured passage. Despite this done deal, many folks attended the hearing and spoke relatively equally in terms of support and opposition.

Recycling 

HB4084– Relating to Advanced Recycling 

Sponsors: Zatezalo (lead), Anderson, Kelly, J., Reynolds, Howell, Miller, Forsht, Keaton, Mandt

Last Action: Referred to House Energy and Manufacturing 

Another topic introduced this week was “advanced recycling.” Advanced recycling is a process which breaks down plastics that are not otherwise recyclable by way of pyrolysis and gasification. While this could be a good thing, we still have questions around the environmental impacts of processing these types of plastics. There are uncertainties concerning the hazardous pollution that stems from burning plastics at high temperatures. Advanced recycling could also be seen as a false solution to our plastic problem as it distracts from the main issue which is our need to decrease single use plastics in the first place. This bill would eliminate the tonnage fee on the storage of waste, and would still be subject to regulation. There’s also a concern of cost and supply, as these facilities are expensive to run and rely on the supply of trash to remain in operation. Will we be importing trash from other states? We hope not. 

Rare Earth Elements/Minerals

HB 4003-  Relating generally to establishing and implementing a program to explore and capitalize on the potential for recovering valuable and strategically important rare earth elements and critical materials from acid mine drainage

Sponsors: Keaton (lead) Barrett, Hanshaw (Mr. Speaker), Summers, Espinosa, Riley, Howell, Burkhammer, Clark, Pack, Maynor

Last Action: Passed out of House Energy & Manufacturing Committee, Headed to House Judiciary Committee 

This bill establishes and implements a program to explore and capitalize on the potential for recovering valuable and strategically important rare earth elements and critical materials from acid mine drainage. Research has demonstrated that treatment of acid mine drainage can be configured to both improve the quality of mine discharges while recovering rare earth elements and critical materials. Previously considered a liability, ownership of acid mine drainage treatment byproducts is poorly defined. This legislation seeks to clarify ownership of these byproducts in order to incentivize acid mine drainage treatment while recovering rare earth elements and critical materials. 

There are two funds, the Special Reclamation Fund and Acid Mine Drainage Fund, which are currently funded through a bonding system program (per ton of coal is taxed at 29 cents per ton) and permit fees. 

Before anyone treats the mine drainage, they need  multiple permits. The treated and discharged water MUST meet the state’s Water Quality Standards, and the party who takes on this treatment is reliable for any violations. If someone wants to clean up their drainage and potentially profit from any rare earth elements/minerals that can be extracted, they (the former operator, mineral owner, etc) can come to the agency and apply for the permit. 

HB 4025–  Providing exemption to severance tax for severing rare earth elements and other critical minerals

Sponsors: Anderson (lead) Kelly, J., Zatezalo, Pethtel, Riley, Boggs, Bridges, Evans, Maynard, Paynter, Burkhammer

Last Action: Passed out of House Energy & Manufacturing Committee, Headed to House Finance Committee 

This bill intends to increase economic development by providing tax relief on rare earth elements for the next 5 years. 

Geothermal Energy 

HB 4098 – Relating to Geothermal Energy Development

Sponsors: Anderson, Kelly, J., Steele, Boggs, Pethtel, Burkhammer, Riley, Statler, Westfall, Wamsley, Reynolds 

Last Action: Passed out of House Energy Committee, now on to House Judiciary Committee

While there are many bills so far that are concerning and catering to fossil fuels, this bill presents an opportunity to regulate geothermal permitting in the state. The bill clarifies that the surface owners own the underground heat. This is a step forward for utilizing other energy resources in the state. 

Boycotting Banks Refusing to Work with Fossil Fuel Companies

SB 262 – Relating generally to financial institutions engaged in boycotts of energy companies

Sponsors: Sen. Phillips, Grady, Martin, Maynard, Karnes, Hamilton, Woodrum

Last Action: Passed the Senate 31:2, now in the House  

This bill allows the West Virginia Treasurer’s Office to publish a list of financial institutions that have publicly stated they are boycotting or not working with fossil fuel companies. It also allows the Treasurer’s Office to refuse to enter into a banking contract with any bank on the list. There were some questions asked during the Senate Finance Committee on whether this bill is looking for a solution to a problem that has not happened yet, as State Treasurer Moore said there were no West Virginia banks currently stating a refusal to work with fossil fuel companies. There were also some concerns that this bill might have a chilling effect on businesses who want to come to our state. We are working with other groups to try and amend or stop this bill, but it has the support of both the Treasurer and the Governor and is likely to pass. 

Bills that haven’t moved this week: 

WV DEP Office of Oil and Gas Funding Bills 

SB 480- Relating to DEP Office of Oil and Gas 

Sponsors: Smith (lead), Phillips, Clements

Last Action: This bill was placed on the Senate Energy, Industry and Mining agenda but was removed. We will likely see this bill back on the agenda next week. 

This bill establishes an annual oversight fee of $100 for wells producing more than 10,000 cubic feet of gas per day to increase the current number of 9 inspectors within the WVDEP’s Office of Oil and Gas back to 20 inspectors. This bill states that it will “adequately fund the Office of Oil and Gas” but each inspector will likely still have 3,000-4,000 wells to oversee, which is still a large amount to regulate per inspector. We would like to see higher permit fees or monies allocated to fund even more inspectors and bring that number of wells down to a more reasonable amount. 

HB2725 – Relating to funding for the DEP Office of Oil and Gas

Sponsors: Del. Hansen 

Last Action: Referred to House Energy and Manufacturing Committee then Finance

Securing more funding for the WV DEP’s Office of Oil and Gas is of great importance to us and our member groups, and we fully support this bill. The WVDEP gave their budget presentation to the Senate Committee on Finance this week testifying that, due to a lack of funding, there is currently just one inspector per 7,000 wells. This bill would require an annual oversight fee of $100 for each well that would fund the DEP’s Office of Oil and Gas, with any excess to be used to plug orphaned wells. 

Fossil Fuels 

HB 3084 – Providing commercial discrimination of producers of coal, gas, oil, carbon-based energy, and other products in the State of West Virginia

Sponsors: Sen. Maynard, Steele, Anderson, Bridges, Dean, Paynter, Kelly, J., Zatezalo, Clark

Last Action: Referred to House Pensions and Retirement Committee

This bill also creates a restricted list of companies that divest funds from fossil fuel companies, but refers only to the funds in the West Virginia Public Employees Retirement system. It prohibits the investment of funds in companies divesting from natural gas, oil, coal, petrochemicals, forestry products, or agriculture commodities; empowering the board to name restricted businesses to a restricted business list; empowering the board to remove investments from restricted businesses with notice; providing for immunity for actors under this article.” We oppose this bill. 

Aboveground Storage Tank Act

HB 4083 – Altering the definition of an above ground storage tank

Sponsors: Del. Kelly, Anderson, Zatezalo, Barnhart, Wamsley, Riley

Last Action: Referred to House Energy and Manufacturing Committee

This is the new House Bill altering the definition of an aboveground storage tank. This bill is a lot more concerning than last year’s bill, and we are still working on nailing down the details and changes within this bill. We will keep you posted as we know more, but be ready to contact your lawmakers! 

SB 88 – Amending definition of “aboveground storage tank”

Sponsors: Sen. Phillips, Nelson 

Last Action: Referred to Senate Judiciary Committee

This bill is a carbon copy of last year’s tank bill that we worked hard to kill after it passed the House and went to the Senate. The bill exempts aboveground storage tanks from regulation that are 210 barrels or less in zones of critical concern. Most of these tanks are oil and gas tanks (approximately 766), which may contain harmful chemicals that are toxic to human health. A zone of critical concern is an area 5 hours upstream of a drinking water intake. 

This would deregulate around 800 tanks all across the state, mostly in the Ohio River Valley area. 

Nuclear Energy 

HB4092 – Providing property tax relief to rare earth industries 

Sponsors: Del. Keaton, Barnhart, Haynes, Burkhammer, Holstein, Dean, Wamsley, Clark, Pinson, Reynolds and Linville 

Last Action: Referred to House Energy and Manufacturing Committee then Judiciary

One of the big issues lawmakers discussed during the fall and winter Legislative interim meetings was the extraction of rare earth minerals from treating acid mine drainage. This bill is to provide property tax relief to rare earth industries and creates valuation of certain rare earth business personal property. We will keep you updated as we learn more about this issue. 

As new bills are introduced, we will add them to this list, along with any updates or changes on the current bills. If you have any questions or concerns about any bills, please reach out to Hannah King (hking1275@gmail.com) or Lucia Valentine (luciavalentine10@gmail.com).