Chapter 5D. Public Energy Authority Act


Published: 2015

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WEST VIRGINIA CODE











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WVC 5D-

CHAPTER 5D. PUBLIC ENERGY AUTHORITY ACT.

WVC -1-

ARTICLE 1. PUBLIC ENERGY AUTHORITY OF THE STATE OF WEST VIRGINIA.







WVC 5D-1-1

§5D-1-1. Short title.

This chapter shall be known and cited as the "West Virginia

Public Energy Authority Act."







WVC 5D-1-2

§5D-1-2. Purpose and intent.

The Legislature finds and declares:

(a) That the long-term health and economy of the United States

will depend upon the availability of reliable sources of energy;

(b) That the state of West Virginia has abundant reserves of

coal, natural gas and other natural resources;

(c) That the economy of the state of West Virginia needs a

reliable and dependable market for the state's coal, natural gas

and other natural resources and the by-products thereof;

(d) That the state of West Virginia needs to encourage the

efficient utilization and disposition of by-products resultant from

the production of natural resources;

(e) That, with all due regard to the protection of the

environment and husbandry of the natural resources of this state,

the health, happiness, safety, right of gainful employment and

general welfare of the citizens of this state will be promoted by

the establishment and operation of coal fired electric generating

plants and transmission facilities and the establishment and

operation of natural gas transmission projects and/or other energy

projects; and

(f) That the means and measures herein authorized for the

financing, building and operation of the facilities described in

subsection (e) are, as a matter of public policy, for the public

purpose of the state.

Accordingly, the public energy authority created herein shall

be authorized to initiate such directives and take such measures as

may be necessary to effectuate the public purpose of this chapter.







WVC 5D-1-3

§5D-1-3. Definitions.

As used in this article, unless the context clearly requires

a different meaning:

(1) "Authority" means the West Virginia public energy

authority created in section four of this article, the duties,

powers, responsibilities and functions of which are specified in

this article.

(2) "Board" means the West Virginia public energy authority

board created in section four of this article, which shall manage

and control the West Virginia public energy authority.

(3) "Bond" means a revenue bond, or note or other evidence of

indebtedness, including, but not limited to, a taxable bond and

commercial paper, issued by the West Virginia economic development

authority or by the authority to effect the intents and purposes of

this article.

(4) "Construction" includes construction, acquisition,

reconstruction, enlargement, improvement and providing furnishings

or equipment.

(5) "Cost" as applied to natural gas transmission projects,

electric power projects or other energy projects authorized by the

authority includes, but is not limited to: The cost of their

acquisition and construction, including all costs pertaining to

pipelines; the cost of acquisition of all land, rights-of-way,

property rights, easements, franchise rights, contract rights,

lease rights and other rights or interests required by the authority for such acquisition and construction; the cost of

demolishing or removing any pipeline, buildings or structures on

land so acquired, including the cost of acquiring any lands to

which such pipelines, buildings or structures may be moved; the

cost of acquiring or constructing and equipping a principal office

and suboffices of the authority; the cost of diverting highways,

interchange of highways and access roads to private property,

including the cost of land or easements therefor; the cost of all

machinery, furnishings and equipment, all financing charges, and

interest prior to and during construction and after completion of

construction; the cost of all engineering services and all expenses

of research and development with respect to natural gas

transmission projects, electric power projects, and related

facilities; the cost of all legal services and expenses; the cost

of all plans, specifications, surveys and estimates of cost and

revenues; all working capital and other expenses necessary or

incident to determining the feasibility or practicability of

acquiring or constructing any such projects; all administrative

expenses and such other expenses as may be necessary or incident to

the acquisition or construction of any such projects; the financing

of such acquisition or construction, and the cost of financing of

the placing of any such project in operation. Any obligation or

expenses incurred after the effective date of this article by any

person, with the approval of the authority, for surveys, borings,

preparation of plans and specifications and other engineering services in connection with the acquisition or construction of a

project shall be regarded as a part of the cost of such project and

shall be reimbursed out of the proceeds of loans or bonds as

authorized by the provisions of this article.

(6) "End-user" means any person who consumes or uses natural

gas in connection with any industrial, commercial, residential or

other use, except that such term shall not include any person

purchasing such natural gas for resale to another person. For

purposes of this article, the term end-user shall include local

distribution companies and intrastate pipelines as defined in

article three, chapter twenty-four of this code.

(7) "Electric power project" means the complex of structures,

machinery and associated equipment for the generation or

transmission of electricity including the production and

distribution of other energy produced from coal, natural gas and

by-products of coal occurring as a result of the production of

coal, and all facilities related or incidental thereto.

(8) "Governmental agency" means the state government or any

agency, department, division or unit thereof; counties;

municipalities; public service districts; regional governmental

authorities and any other governmental agency, entity, political

subdivision, public corporation or agency; the United States

government or any agency, department, division or unit thereof; and

any agency, commission or authority established pursuant to an

interstate compact or agreement.

(9) "Local distribution company" means any person, other than

any interstate pipeline or any intrastate pipeline, engaged in

transportation or local distribution of natural gas and the sale of

natural gas for ultimate consumption.

(10) "Natural gas transmission project" means any natural gas

pipeline and all facilities necessary or incident to the

transportation of natural gas to or for the benefit of industrial

or other end-users in West Virginia, the acquisition or

construction of which is financed, in whole or in part, by the West

Virginia public energy authority or the acquisition or construction

of which is financed, in whole or in part, from funds made

available by grant, loan or any other source by, or through, the

authority as provided in this article, including facilities, the

acquisition or construction of which is authorized, in whole or in

part, by the West Virginia public energy authority or the

acquisition or construction of which is financed, in whole or in

part, from funds made available by grant, loan or any other source

by, or through, the authority as provided in this article,

including all pipelines, buildings and facilities which the

authority deems necessary for the operation of the project,

together with all property, rights, easements and interests which

may be required for the operation of the project.

(11) "Owner" includes all persons having any title or interest

in any property rights, easements and interests authorized to be

acquired by this article.

(12) "Person" means any public or private corporation,

institution, association, firm or company organized or existing

under the laws of this or any other state or country; the United

States or the state of West Virginia; any federal or state

governmental agency; political subdivision; county commission;

municipality; industry; public service district; partnership;

trust; estate; person or individual; and group of persons or

individuals acting individually or as a group or any other legal

entity whatever.

(13) "Pipeline" or "pipelines" means any actual lines of pipe

for the transmission and distribution of natural gas together with

all appurtenances, facilities, structures, equipment, machinery and

other items related to the transmission and distribution of gas

through lines of pipe.

(14) "Revenue" means any money or thing of value collected by,

or paid to, the West Virginia public energy authority as rents,

loan payments, installment payments, or other proceeds of sale,

rates, user fees, service charges or other charges for the electric

power produced by, for the use of, for the lease, the lease with an

option to purchase or the purchase of, or in connection with any

electric power project; or as rent, use, transportation or service

fee or charge for use of, or in connection with, any natural gas

transmission project; or other money or property from any source

which is received and may be expended for or pledged as revenues

pursuant to this article.







WVC 5 D- 1 - 4

§5D-1-4. West Virginia Public Energy Authority continued; West

Virginia Public Energy Board continued; organization

of authority and board; appointment of board members;

term, compensation and expenses; director of

authority; appointment.

(a) The West Virginia Public Energy Authority is continued.

The authority is a governmental instrumentality of the state and a

body corporate. The exercise by the authority of the powers

conferred by this article and the carrying out of its purposes and

duties are essential governmental functions and for a public

purpose.

(b) The authority shall be controlled, managed and operated by

a seven-member board known as the West Virginia Public Energy

Authority Board, which is continued. The seven members include the

Director of the Division of Energy or designee; the Secretary of

the Department of Environmental Protection or designee; the

Director of the Economic Development Authority or designee; and

four members representing the general public. The public members

are appointed by the Governor, by and with the advice and consent

of the Senate, for terms of one, two, three and four years,

respectively.

(c) On the thirtieth day of June, two thousand seven, the

terms of all appointed members shall expire. Not later than the

first day of July, two thousand seven, the Governor shall appoint

the public members required in subsection (b) of this section to assume the duties of the office immediately, pending the advice and

consent of the Senate.

(d) The successor of each appointed member is appointed for a

four-year term. A vacancy is filled by appointment by the Governor

in the same manner as the original appointment. A member appointed

to fill a vacancy serves for the remainder of the unexpired term.

Each board member serves until a successor is appointed.

(e) No more than three of the public members may at any one

time belong to the same political party. No more than two public

members may be employed by or associated with any industry the

authority is empowered to affect. One member shall be a person

with significant experience in the advocacy of environmental

protection. Board members may be reappointed to serve additional

terms.

(f) All members of the board shall be citizens of the state.

Before engaging in their duties, each member of the board shall

comply with the requirements of article one, chapter six of this

code and give bond in the sum of twenty-five thousand dollars in

the manner provided in article two of said chapter. The Governor

may remove any board member as provided in section four, article

six of said chapter.

(g) The Director of the Division of Energy shall serve as

chair. The board annually elects one of its members as vice chair

and appoints a secretary-treasurer who need not be a member of the

board.

(h) Four members of the board constitute a quorum and the

affirmative vote of the majority of members present at any meeting

is necessary for any action taken by vote of the board. A vacancy

in the membership of the board does not impair the rights of a

quorum by such vote to exercise all the rights and perform all the

duties of the board and the authority.

(i) The person appointed as secretary-treasurer, including a

board member if so appointed, shall give bond in the sum of fifty

thousand dollars in the manner provided in article two, chapter six

of this code.

(j) Each public member shall be reimbursed for reasonable

expenses incurred in the discharge of official duties. All

expenses incurred by the board shall be paid in a manner consistent

with guidelines of the Travel Management Office of the Department

of Administration and are payable solely from funds of the

authority or from funds appropriated for such purpose by the

Legislature. Liability or obligation is not incurred by the

authority beyond the extent to which moneys are available from

funds of the authority or from such appropriations.

(k) In addition to such other duties and responsibilities as

may be prescribed in this code, the Director of the Division of

Energy is responsible for managing and administering the daily

functions of the authority and for performing all other functions

necessary to the effective operation of the authority.







WVC 5 D- 1 - 5

§5D-1-5. Powers, duties and responsibilities of authority

generally; termination of certain powers.

The West Virginia Public Energy Authority has and may exercise

all powers necessary or appropriate to execute its corporate

purpose. The authority may:

(1) Adopt, amend and repeal bylaws necessary and proper for

the regulation of its affairs and the conduct of its business and

rules to implement and make effective its powers and duties, such

rules to be promulgated in accordance with the provisions of

chapter twenty-nine-a of this code.

(2) Adopt and use an official seal and alter the same at

pleasure.

(3) Maintain a principal office and, if necessary, regional

suboffices at locations properly designated or provided.

(4) Sue and be sued in its own name and plead and be impleaded

in its own name, and particularly to enforce the obligations and

covenants made under this article. Any actions against the

authority shall be brought in the circuit court of Kanawha County.

(5) Foster, encourage and promote the mineral development

industry. The authority is encouraged to maximize the use of the

West Virginia mineral development industry, but is not prohibited

from utilizing nonstate mineral resources.

(6) Represent the state with respect to national initiatives

concerning the mineral development industry and international

marketing activities affecting the mineral development industry.

(7) Engage in strategic planning to enable the state to cope

with changes affecting or which may affect the mineral development

industry.

(8) Acquire, whether by purchase, construction, gift, lease,

lease-purchase or otherwise, any electric power project or natural

gas transmission project. In the event that an electric power

project to be constructed pursuant to this article is designed to

utilize coal wastes for the generation of electricity or the

production of other energy, such project shall also be capable of

using coal as its primary energy input: Provided, That it shall be

demonstrated to the authority's satisfaction that quantities of

coal wastes exist in amounts sufficient to provide energy input for

such project for the term of the bonds or notes issued by the

authority to finance the project and are accessible to the project.

(9) Lease, lease with an option by the lessee to purchase,

sell, by installment sale or otherwise, or otherwise dispose of, to

persons other than governmental agencies, any or all of its

electric power projects or natural gas transmission projects for

such rentals or amounts and upon such terms and conditions as the

Public Energy Authority Board may deem advisable.

(10) Finance one or more electric power projects or natural

gas transmission projects by making secured loans to persons other

than governmental agencies to provide funds for the acquisition, by

purchase, construction or otherwise, of any such project or

projects.

(11) Issue bonds for the purpose of financing the cost of

acquisition and construction of one or more electric power projects

or natural gas transmission projects or any additions, extensions

or improvements thereto which will be sold, leased with an option

by the lessee to purchase, leased or otherwise disposed of to

persons other than governmental agencies or for the purpose of

loaning the proceeds thereof to persons other than governmental

agencies for the acquisition and construction of said projects or

both. Such bonds shall be issued and the payment of such bonds

secured in the manner provided by the applicable provisions of

sections seven, eight, nine, ten, eleven, twelve, thirteen and

seventeen, article two-c, chapter thirteen of this code: Provided,

That the principal and interest on such bonds shall be payable out

of the revenues derived from the lease, lease with an option by the

lessee to purchase, sale or other disposition of or from loan

payments in connection with the electric power project or natural

gas transmission project for which the bonds are issued, or any

other revenue derived from such electric power project or natural

gas transmission project.

(12) In the event that the electric power project or natural

gas transmission project is to be owned by a governmental agency,

apply to the economic development authority for the issuance of

bonds payable solely from revenues as provided in article fifteen,

chapter thirty-one of this code: Provided, That the economic

development authority shall not issue any such bonds except by an act of general law: Provided, however, That the authority shall

require that in the construction of any such project, prevailing

wages shall be paid as part of a project specific agreement which

also takes into account terms and conditions contained in the West

Virginia - Ohio valley market retention and recovery agreement or

a comparable agreement.

(13) Acquire by gift or purchase, hold and dispose of real and

personal property in the exercise of its powers and the performance

of its duties as set forth in this article.

(14) Acquire in the name of the state, by purchase or

otherwise, on such terms and in such manner as it deems proper, or

by the exercise of the right of eminent domain in the manner

provided in chapter fifty-four of this code, such real property or

parts thereof or rights therein, rights-of-way, property, rights,

easements and interests it deems necessary for carrying out the

provisions of this article and compensation shall be paid for

public or private lands so taken; and the authority may sell any of

the real property or parts thereof or rights therein,

rights-of-way, property, rights, easements and interests acquired

hereunder in such manner and upon such terms and conditions as the

authority deems proper: Provided, That if the authority determines

that land or an interest therein acquired by the authority through

the exercise of the power of eminent domain for the purpose of this

article is no longer necessary or useful for such purposes, and if

the authority desires to sell such land or interest therein, the authority shall first offer to sell such land or interest to the

owner or owners from whom it was acquired, at a price equal to its

fair market value: Provided, however, That if the prior owner or

owners shall decline to reacquire the land or interest therein, the

authority shall be authorized to dispose of such property by direct

sale, auction, or competitive bidding. In no case shall such land

or an interest therein acquired under this subdivision be sold for

less than its fair market value. This article does not authorize

the authority to take or disturb property or facilities belonging

to any public utility or to a common carrier, which property or

facilities are required for the proper and convenient operation of

such public utility or common carrier, except for the acquisition

of easements or rights-of-way which will not unreasonably interfere

with the operation of the property or facilities of such public

utility or common carrier, and in the event of the taking or

disturbance of property or facilities of public utility or common

carrier, provision shall be made for the restoration, relocation or

duplication of such property or facilities elsewhere at the sole

cost of the authority.

The term "real property" as used in this article is defined to

include lands, structures, franchises and interests in land,

including lands under water and riparian rights, and any and all

other things and rights usually included within the said term, and

includes also any and all interests in such property less than full

title, such as easements, rights-of-way, uses, leases, licenses and all other incorporeal hereditaments and every estate, interest or

right, legal or equitable, including terms for years and liens

thereon by way of judgments, mortgages or otherwise, and also all

claims for damages for such real estate.

For the purposes of this section, "fair market value" shall be

determined by an appraisal made by an independent person or firm

chosen by the authority. The appraisal shall be performed using

the principles contained in the "Uniform Appraisal Standards for

Federal Land Acquisitions" published under the auspices of the

Interagency Land Acquisition Conference, United States Government

Printing Office, 1972.

(15) Make and enter into all contracts and agreements and

execute all instruments necessary or incidental to the performance

of its duties and the execution of its powers: Provided, That if

any electric power project or natural gas transmission project is

to be constructed by a person other than a governmental agency, and

with whom the authority has contracted to lease, sell or finance

such project upon its completion, then the authority shall not be

required to comply with the provisions of article twenty-two,

chapter five of this code requiring the solicitation of competitive

bids for the construction of such a project.

(16) Employ managers, superintendents and other employees, and

retain or contract with consulting engineers, financial

consultants, accountants, architects, attorneys, and such other

consultants and independent contractors as are necessary in its judgment to carry out the provisions of this article, and fix the

compensation or fees thereof. All expenses thereof shall be

payable solely from the proceeds of bonds issued by the economic

development authority, from the proceeds of bonds issued by or loan

payments, lease payments or other payments received by the

authority, from revenues and from funds appropriated for such

purpose by the Legislature.

(17) Receive and accept from any federal agency, or any other

source, grants for or in aid of the construction of any project or

for research and development with respect to electric power

projects, natural gas transmission projects or other energy

projects, and receive and accept aid or contribution from any

source of money, property, labor or other things of value to be

held, used and applied only for the purpose for which such grants

and contributions are made.

(18) Purchase property coverage and liability insurance for

any electric power project or natural gas transmission project or

other energy project and for the principal office and suboffices of

the authority, insurance protecting the authority and its officers

and employees against liability, if any, for damage to property or

injury to or death of persons arising from its operations and any

other insurance which may be provided for under a resolution

authorizing the issuance of bonds or in any trust agreement

securing the same.

(19) Charge, alter and collect transportation fees and other charges for the use or services of any natural gas transmission

project as provided in this article.

(20) Charge and collect fees or other charges from any energy

project undertaken as a result of this article.

(21) When the electric power project is owned and operated by

the authority, charge reasonable fees in connection with the making

and providing of electric power and the sale thereof to

corporations, states, municipalities or other entities in the

furtherance of the purposes of this article.

(22) Purchase and sell electricity or other energy produced by

an electric power project in and out of the state of West Virginia.

(23) Enter into wheeling contracts for the transmission of

electric power over the authority's or another party's lines.

(24) Make and enter into contracts for the construction of a

project facility and joint ownership with another utility and the

provisions of this article shall not constrain the authority from

participating as a joint partner therein.

(25) Make and enter into joint ownership agreements.

(26) Establish or increase reserves from moneys received or to

be received by the authority to secure or to pay the principal of

and interest on the bonds issued by the economic development

authority pursuant to the provisions of article fifteen, chapter

thirty-one of this code or bonds issued by the authority.

(27) Broker the purchase of natural gas for resale to

end-users: Provided, That whenever there are local distribution company pipelines already in place the authority shall arrange to

transport the gas through such pipelines at the rates approved by

the Public Service Commission of West Virginia.

(28) Engage in market research, feasibility studies,

commercial research, and other studies and research pertaining to

electric power projects and natural gas transmission projects or

any other functions of the authority pursuant to this article.

(29) Enter upon any lands, waters and premises in the state

for the purpose of making surveys and examinations as it may deem

necessary or convenient for the purpose of this article, and such

entry shall not be deemed a trespass, nor shall an entry for such

purposes be deemed an entry under any condemnation proceedings

which may be then pending and the authority shall make

reimbursement for any actual damages resulting to such lands,

waters and premises as a result of such activities.

(30) Participate in any reorganization proceeding pending

pursuant to the United States Code (being the act of congress

establishing a uniform system of bankruptcy throughout the United

States, as amended) or any receivership proceeding in a state or

federal court for the reorganization or liquidation of a

responsible buyer or responsible tenant. The authority may file

its claim against any such responsible buyer or responsible tenant

in any of the foregoing proceedings, vote upon any question pending

therein, which requires the approval of the creditors participating

in any reorganization proceeding or receivership, exchange any evidence of such indebtedness for any property, security or

evidence of indebtedness offered as a part of the reorganization of

such responsible buyer or responsible tenant or of any entity

formed to acquire the assets thereof and may compromise or reduce

the amount of any indebtedness owing to it as a part of any such

reorganization.

(31) Make or enter into management contracts with a second

party or parties to operate any electric power project or any gas

transmission project and associated facilities, or other related

energy project, either during construction or permanent operation.

(32) Do all acts necessary and proper to carry out the powers

expressly granted to the authority in this article.

(33) Nothing herein shall be construed to permit the

transportation of gas produced outside of this state through a

natural gas transmission project.

(34) The authority shall, after consultation with other

agencies of state government having environmental regulatory

functions, promulgate legislative rules pursuant to chapter

twenty-nine-a of this code, to establish standards and principles

to be applied to all projects in assessing the effects of projects

on the environment: Provided, That when a proposed project

requires an environmental impact statement pursuant to the National

Environmental Policy Act of 1969, a copy of the environmental

impact statement shall be filed with the authority and be made

available prior to any final decision or final approval of any project and prior to the conducting of any public hearings

regarding the project, and in any such case, no assessment pursuant

to the legislative rule need be made.







WVC 5D-1-5a

§5D-1-5a. Publication of notice of certain meetings.

For all meetings of the board at which a bond issue of the

authority will be finally considered, and for all meetings of the

board at which the exercise of the right of eminent domain will be

finally considered, whether such meeting be a regular or special

meeting, the chairman shall cause a notice of said meeting to be

published as a class II legal advertisement in compliance with the

provisions of article three, chapter fifty-nine of this code and

the publication area shall be each county in which the project is

located. In addition, notice in writing of such meeting shall be

given, by regular United States mail, to any person who shall have

previously made a request, in writing, to be so notified with

regard to a particular project.







WVC 5D-1-5b

§5D-1-5b. Public hearing before final consideration of bond issue

or exercise of right of eminent domain.

(a) Prior to any final decision of the board to take action

with respect to the issuance of revenue bonds or to authorize the

exercise of the right of eminent domain with respect to any

electric power or natural gas transmission project, the authority

shall:

(1) Prepare and reduce to writing the nature of the proposed

project, a summary of the data supporting the board's

determination and a description and location identification of the

proposed real property, right of way, or easement to be acquired.

The written statement under this section and the environmental

impact statement or assessment required pursuant to section five of

this article shall be available for public inspection at the office

of the county clerk at the county courthouse of each county in

which the project is located during the two successive weeks before

the date of the public hearing required by this section;

(2) Provide for a public hearing to be held at a reasonable

time and place within at least one county in which the project is

located to allow interested members of the public to attend the

hearing without undue hardship. Members of the public may be

present, submit statements and testimony and question the

authority's representative appointed pursuant to this section;

(3) Not less than thirty days prior to such public hearing,

provide notice to all members of the Legislature, unless otherwise notified by a member that such member does not desire such notice,

to the county commission of each county within which the project is

located and to the municipal council of each municipality in said

county;

(4) Cause to be published a notice of the required public

hearing. The notice shall be published as a Class II legal

advertisement in compliance with the provisions of article three,

chapter fifty-nine of this code and the publication area shall be

each county in which the project is located. The public hearing

shall be held no earlier than the fourteenth successive day and no

later than the twenty-first successive day following the first

publication of the notice. The notice shall contain the time and

place of the public hearing along with a brief description of the

project and its proposed location;

(5) Cause a copy of the required notice to be posted at the

county seat of each county within which the project is located for

members of the public to observe. Such notice shall remain posted

for two successive weeks prior to the date of the public hearing;

(6) Appoint a representative of the authority who shall

conduct the required public hearing. The representative of the

authority shall make a report of the public hearing available for

inspection by the public or, upon written request of any interested

person, provide a written copy thereof and to all individuals

previously receiving written notice of the hearing within thirty

days following the public hearing; and

(7) The representative of the authority conducting the public

hearing shall make the results of the hearing available to the

board for its consideration prior to the board making decisions

regarding the proposed project.

(b) No final action of the board with respect to the issuance

of revenue bonds or authorizing the exercise of the right of

eminent domain with respect to a proposed project may be made

before the thirtieth successive day following the public hearing

required by this section, but in no event shall final action of the

board be made prior to fifteen days after the report of the public

hearings are made available to the public in general.







WVC 5D-1-6

§5D-1-6. Authority may construct, finance, lease, sell, maintain,

etc., electric power projects and transmission

facilities.

To accomplish the public policies and purposes and to meet the

responsibility of the state as set forth in this article, the West

Virginia public energy authority may initiate, acquire, construct,

maintain, lease, lease with an option for the lessee to purchase,

sell, by installment sale or otherwise, or otherwise dispose of,

repair and operate electric power generating projects and

transmission facilities, and may issue bonds for the purpose of

financing the cost of acquisition and construction of electric

power projects and transmission facilities which will be sold,

leased, leased with an option by the lessee to purchase or

otherwise disposed of to person other than governmental agencies or

for the purpose of loaning the proceeds thereof to persons other

than governmental agencies for the acquisition and construction of

said projects or both; or if the electric power project is to be

owned by a governmental agency request the issuance of bonds by the

economic development authority, payable solely from revenues, to

pay the cost or finance in whole or in part such projects:

Provided, That the economic development authority shall not be

authorized to issue any such bonds except by an act of general law,

as provided in article fifteen, chapter thirty-one of this code.

An electric power project shall not be undertaken unless it has

been determined by the authority that the project will be consistent with the purposes set out in this article. Any

resolution providing for acquiring or constructing such projects

shall include a finding by the authority that such determinations

have been made.

The authority is authorized and directed:

(1) To cooperate with the appropriate agencies and officials

of the United States government to the end that any electric power

project shall be so planned and constructed as to be adaptable to

the plans of the United States.

(2) To apply to the appropriate agencies and officials of the

United States government including the federal energy regulatory

commission for such licenses, permits or approval of its plans or

projects as it may deem necessary or advisable, and in its

discretion and upon such terms and conditions as it may deem

appropriate, to accept such licenses, permits or approvals as may

be tendered to it by such agencies or officials and such federal or

other public or governmental assistance as is now or may hereafter

become available to it; and to enter into contracts with such

agencies or officials relating to the construction or operation of

any project authorized by this article.

(3) To proceed with the physical construction or completion of

any project authorized by this article, including the erection of

the necessary power houses and other facilities, instrumentalities

and things necessary or convenient to that end, and including also

the erection of such transmission lines as may be necessary to conduct the electricity; and including also the acquisition or

construction of transmission lines or the use of such transmission

lines, available or which may be made available, to conduct

electricity to such point or points at which the electricity is

sold by the authority to any person, corporation or association,

public or private.

(4) To cooperate with and, when the board deems it feasible

and advisable, to enter into contractual arrangements with utility

companies.

(5) To purchase, when available, coal, natural gas or the

by-products of coal produced in this state as the fuel source for

all electric power projects.







WVC 5D-1-7

§5D-1-7. Authority may construct, finance, maintain, etc.,

natural gas transmission projects and facilities.

To accomplish the public policies and purposes and to meet the

responsibility of the state as set forth in this article, the West

Virginia public energy authority may initiate, acquire, construct,

reconstruct, enlarge, maintain, repair, improve, furnish, equip,

lease or rent, and operate natural gas transmission projects at

such locations or areas within the state as may be determined by

the authority: Provided, That at least thirty days prior to

exercising any such power, the authority shall provide written

notice to any local natural gas distribution company or to any

company that transports natural gas in intrastate or interstate

commerce, which would experience a direct loss of sales to an end-

user presently served by such company as a result of such natural

gas transmission project. For purposes of this article, notice

shall be given either by personal delivery thereof to the affected

company to be so notified, or by depositing such notice in the

United States mail, postage prepaid, in an envelope addressed to

such affected company.







WVC 5D-1-8

§5D-1-8. Annual report to governor and Legislature; audit.

The authority shall make an annual report, as soon as possible

after the close of each fiscal year, of its activities for the

preceding fiscal year to the governor and the Legislature. Each

such report shall set forth a complete operating and financial

statement covering the authority's operations during the preceding

fiscal year. The authority shall cause an audit of its books and

accounts to be made at least once each fiscal year by certified

public accountants and the cost thereof may be treated as a part of

the cost of financing, of construction or of operations of its

projects.







WVC 5D-1-9

§5D-1-9. Expenses of authority.

From time to time the Legislature may appropriate funds to be

used for the purposes of this article. All expenses incurred in

carrying out the provisions of this article shall be payable solely

from funds of the authority or from funds appropriated to the

authority for such purpose by the Legislature. Such article does

not authorize the authority to incur indebtedness or liability on

behalf of or payable by the state.







WVC 5D-1-10

§5D-1-10. Use of funds by authority; restrictions.

All moneys, properties and assets acquired by the authority,

bonds or as revenues or otherwise, shall be held by it in trust for

the purposes of carrying out its powers and duties, and shall be

used and reused in accordance with the purposes and provisions of

this article. Such moneys shall at no time be commingled with

other public funds.







WVC 5D-1-11

§5D-1-11. Investment of funds by authority.

The authority is hereby authorized and empowered to invest any

funds not needed for immediate disbursement in any of the following

securities:

(1) (i) Direct obligations of or obligations guaranteed by the

United States of America; (ii) evidences of ownership of a

proportionate interest in specified direct obligations of, or

specific obligations the timely payment of the principal of and the

interest on which are unconditionally and fully guaranteed by, the

United States of America, which obligations are held by a bank or

trust company organized and existing under the law of the United

States of America or any state thereof in the capacity of custodian

and (iii) obligations, the sole source of the payment of the

principal of and interest on which are obligations of the nature of

those described in clause (i), which are irrevocably pledged for

such purpose;

(2) Bonds, debentures, notes or other evidences of

indebtedness issued by any of the following agencies: Banks for

cooperatives; federal intermediate credit banks; federal home loan

bank system; Export-Import Bank of the United States; federal land

banks; the Federal National Mortgage Association or the Government

National Mortgage Association;

(3) Public housing bonds issued by public agencies or

municipalities and fully secured as to the payment of both

principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with the United States

of America; or temporary notes issued by public agencies or

municipalities or preliminary loan notes issued by public agencies

or municipalities, in each case, fully secured as to the payment of

both principal and interest by a requisition or payment agreement

with the United States of America;

(4) Certificates of deposit secure by obligations of the

United States of America;

(5) Direct obligations of or obligations guaranteed by the

state of West Virginia;

(6) Direct and general obligations of any other state within

the territorial United States, to the payment of the principal of

and interest on which the full faith and credit of such state is

pledged: Provided, That at the time of their purchase, such

obligations are rated in either of the two highest rating

categories by a nationally recognized bond-rating agency;

(7) Any fixed interest bond, note or debenture of any

corporations organized and operating within the United States:

Provided, That such corporation shall have a minimum net worth of

fifteen million dollars and its securities or its parent

corporation's securities are listed on one or more of the national

stock exchanges: Provided, however, That (i) such corporation has

earned a profit in eight of the preceding ten fiscal years as

reflected in its statements, and (ii) such corporation has not

defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal

years, and (iii) the bonds, notes or debentures of such corporation

to be purchases are rated "AA" or the equivalent thereof or better

than "AA" or the equivalent thereof by at least two or more

nationally recognized rating services such as Standard and Poor's,

Dunn & Bradstreet or Moody's; and

(8) Such other investments which at the time of the

acquisition thereof shall be listed as permissible investments of

trusted funds in an official statement, offering circular or

prospectus with respect to indebtedness which is rated by Moody's

or Standard & Poor's not less than the highest rating assigned by

such agencies to any series of bonds.







WVC 5D-1-12

§5D-1-12. Maintenance, operation and repair of projects.

Each electric power project, each natural gas transmission

project or other energy project owned and operated by the

authority, when constructed and placed in operation, shall be

maintained and kept in good condition and repair by the authority.

Each such project owned and operated by the authority shall be

operated by such operating employees as the authority employs or

pursuant to a contract or lease with a governmental agency or

person. All public or private property damaged or destroyed in

carrying out the provisions of this article and in the exercise of

the powers granted hereunder with regard to any project shall be

restored or repaired and placed in its original condition, as

nearly as practicable, or adequate compensation made therefor out

of funds provided in accordance with the provisions of this

article.







WVC 5D-1-13

§5D-1-13. Bonds lawful investments.

The provisions of sections nine and ten, article six, chapter

twelve of this code to the contrary notwithstanding, all bonds

issued by either the West Virginia economic development authority

or the authority for the purposes of this article shall be lawful

investments for the West Virginia state board of investments and

shall also be lawful investments for banking institutions,

societies for savings, building and loan associations, savings and

loan associations, deposit guarantee associations, trust companies,

and insurance companies, including domestic for life and domestic

not for life insurance companies.







WVC 5D-1-14

§5D-1-14. Exemption from taxation.

The exercise of the powers granted to the authority by this

article will be in all respects for the benefit of the people of

the state, for the improvement of their health, safety, convenience

and welfare and for the enhancement of their residential,

agricultural, recreational, economic, commercial and industrial

opportunities and is a public purpose. As the ownership, operation

and maintenance of natural gas transmission projects and electric

power projects and other energy projects owned and/or operated by

the authority will constitute the performance of essential

governmental functions, the authority shall not be required to pay

any taxes or assessments upon any such project or upon any property

acquired or used by the authority or upon the income therefrom.

Natural gas transmission projects and electric power projects and

other energy projects owned or leased by persons other than

governmental agencies shall be subject to any taxes or assessments

upon any such project or projects. Bonds issued by either the West

Virginia economic development authority or the authority and all

interest and income thereon shall be exempt from all taxation by

this state, or any county, municipality, political subdivision or

agency thereof, except inheritance taxes: Provided, That the

authority shall require a fee in substitution of any ad valorem tax

exemption to be negotiated by said authority.







WVC 5D-1-15

§5D-1-15. Acquisition of property by authority -- Acquisition by

purchase, lease or eminent domain; governmental

agencies authorized to convey, etc., property; sale

of property by authority.

The authority may acquire by purchase, or otherwise, as

authorized by this article whenever it deems such acquisition

expedient, any land, property, rights, rights-of-way, franchises,

easements, leases and other interests in lands it deems necessary

or convenient for the construction and operation of any natural gas

transmission project, any electric power project, or other energy

project.

All governmental agencies, notwithstanding any contrary

provision of law, may lease, lend, grant or convey to the

authority, at its request, upon such terms as the proper

authorities of such governmental agencies deem reasonable and fair,

any real property or interest therein, including improvements

thereto or personal property which is necessary or convenient to

the effectuation of the authorized purposes of the authority,

including public roads and other real property or interests

therein, including improvements thereto or personal property

already devoted to public use.

The authority may sell any land, property, rights,

rights-of-way, franchises, easements, leases and other interests in

land acquired under the provisions of this section in such manner

and upon such terms and conditions as it deems proper.







WVC 5D-1-16

§5D-1-16. Authority not public utility and not subject to full

jurisdiction of public service commission; authority

subject to provisions concerning gas pipeline safety.

Notwithstanding anything contained in this article to the

contrary, and specifically notwithstanding any activities of the

authority which shall constitute a public service, the authority

shall not be considered or deemed a public utility in any respect

for purposes of chapter twenty-four of this code, and neither the

authority, nor any of its activities or the activities of its

agents or employees, nor any project constructed, maintained or

operated by the authority, nor any other matters pertaining to the

authority, shall be subject to the jurisdiction of the public

service commission of West Virginia, either with respect to the

powers of said public service commission generally, or with respect

to its power over rates, or otherwise: Provided, That the

authority and all natural gas transmission projects which it

constructs, maintains or operates shall nevertheless be subject to

the provisions of chapter twenty-four-b of this code concerning gas

pipeline safety.







WVC 5D-1-17

§5D-1-17. Transportation of gas from natural gas transportation

projects by gas utility pipelines as common carriers.

In conjunction with any natural gas transportation project,

and for any other purpose in order to effectuate the policies and

intent of this article, the authority may petition the public

service commission, pursuant to section three-a, article three,

chapter twenty-four of this code, to authorize and require the

transportation of natural gas for the authority or for any end-user

or other person doing business with the authority, by intrastate

pipelines with unused or excess capacity not needed to meet its

contractual obligations, by interstate pipelines with unused or

excess capacity not needed to meet interstate commerce demands, or

by local distribution companies.







WVC 5 D- 1 - 18

§5D-1-18. Transportation fees and other revenues from natural

gas transmission projects owned by the authority.

This section shall apply to any natural gas transmission

project or projects which are owned by the authority. The

authority may charge, alter and collect transportation fees or

other charges for the use or services of any natural gas

transmission project, and fix the terms, conditions, transportation

fees or other charges for such use or services. Such

transportation fees or other charges shall not be subject to

supervision or regulation by any other authority, department,

commission, board, bureau or agency of the state, including

specifically the public service commission.







WVC 5D-1-19

§5D-1-19. Financial interest in contracts prohibited; penalty.

No officer, member or employee of the authority shall be

financially interested, directly or indirectly, in any contract of

any person with the authority, or in the sale of any property, real

or personal, to or from the authority. This section does not apply

to contracts or purchases of property, real or personal, between

the authority and any governmental agency. If any officer, member

or employee of the authority has such financial interest in a

contract or sale of property prohibited hereby, he shall be guilty

of a misdemeanor, and, upon conviction thereof, shall be fined not

more than one thousand dollars, or imprisoned in the county jail

not more than one year, or both fined and imprisoned.







WVC 5D-1-20

§5D-1-20. Personal liability of members or persons acting on

behalf of the authority.

(a) No director or any person acting on behalf of the

authority executing any contracts, comments or agreements issued

pursuant to this article shall be liable personally upon such

contracts, comments or agreements or be subject to any personal

liability or accountability by reason thereof; and

(b) No director or any person acting on behalf of the

authority shall be personally liable for damage or injury resulting

from the performance of his duties hereunder.







WVC 5D-1-21

§5D-1-21. Meetings and records of authority to be kept public.

All meetings of the authority shall be open to the public and

the records of the authority shall be open to public inspection at

all reasonable times, except as otherwise provided in this section.

All final actions of the authority shall be journalized and such

journal shall also be open to the inspection of the public at all

reasonable times. Any records or information relating to secret

processes or secret methods of manufacture or production which may

be obtained by the authority or other persons acting under

authority of this article are confidential and shall not be

disclosed.







WVC 5D-1-22

§5D-1-22. Liberal construction of article.

The provisions of this article are hereby declared to be

remedial and shall be liberally construed to effectuate its

purposes and intents.







WVC 5D-1-23

§5D-1-23. Severability.

If any section, part, provision, subsection, subpart,

subdivision, paragraph or subparagraph of this article or the

application thereof to any person or circumstance is held

unconstitutional or invalid, such unconstitutionality or invalidity

shall not affect any other section, part, provision, subsection,

subpart, subdivision, paragraph or subparagraph of this article or

its application or validity, and to this end the provisions of this

article are declared to be severable.







WVC 5 D- 1 - 24

§5D-1-24.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.





Note: WV Code updated with legislation passed through the 2015 Regular Session

The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.