The Richmond Register

Local News

April 24, 2013

Family relationship ‘not conflict’ in selenium regulation

Legislative staffer

FRANKFORT — The family relationship between legislative staffer David Nicholas and Environmental Protection Commissioner Bruce Scott posed no conflict of interest when Nicholas advised a committee reviewing a controversial environmental regulation pushed by Scott, according to Nicholas’ boss.

Legislative Research Commission Director Bobby Sherman said he has complete faith in Nicholas and does not “concede that to be a conflict in any way.”

Nicholas is assigned to the Administrative Regulations Review Subcommittee, which approved a change to an environmental regulation governing the discharge of selenium into streams that was sought by Scott and the Energy and Environment Cabinet but bitterly opposed by environmental groups.

Some lawmakers on the committee have suggested Scott “deliberately confused” the committee about the complex regulation and said they were unaware of Nicholas’ relationship to Scott when they voted on the regulation.

“I have always had all the respect in the world for Dave Nicholas,” said Rep. Tommy Turner, R-Somerset, one of the committee members who chastised the cabinet for the way it handled the regulation. “I would hate to believe it was a conflict but I could see how someone else (who doesn’t know Nicholas) might think so.”

LRC staff are prohibited from commenting publicly on legislative matters. Nicholas confirmed Scott is married to his daughter but referred all other questions to Sherman.

“I don’t consider it a conflict at all,” Sherman said, adding he has complete faith in Nicholas. “I demand a professional standard of conduct from our employees and I get it. They are not policymakers and they don’t vote — so it’s not a conflict of interest.”

Committee co-chair Rep. Johnny Bell, D-Glasgow, also backed Nicholas. In fact, Bell said, it was Nicholas who first criticized the cabinet’s handling of a controversial amendment of the regulation after it had closed a period of public comment on the regulation.

“I believe it was a non-factor,” Bell said of Nicholas’ relationship to Scott. “I’ve worked with a lot of people in Frankfort and there are some who have let me down, including some lawmakers, but Dave Nicholas has never done that.”

Scott said the relationship is “not relevant.” He said he has appeared before the subcommittee repeatedly during the approximately 14 years Nicholas has been assigned to the subcommittee and during that time neither he nor the cabinet ever received or requested any preferential treatment.

Sen. Perry Clark, who voted against the regulation, was unaware of Scott’s relationship to Nicholas. He said he didn’t think that would affect Nicholas’ advice to the committee, “but it would’ve been nice to have full disclosure.”

The cabinet wasn’t the only one urging passage of the controversial regulation and late amendment. The Kentucky Chamber of Commerce testified on behalf of it, too. But the chamber representatives didn’t note that their board chairman is James Booth, President and CEO of Booth Energy which operates underground and surface coal mines in Kentucky, West Virginia and Virginia, producing seven million tons of coal annually, according to the company’s website.

Turner and Clark said they believe that presents a conflict of interest, but Chamber President David Adkisson said Booth played no part in the Chamber’s position on the selenium regulation.

The chamber’s position was determined by its Kentucky Energy and Environmental Council, Adkisson said. He said the council is made up of both chamber board members and employees of the companies represented on the chamber board.

Chad Harpole, vice president for Governmental Affairs for the Chamber, said utilities and coal companies are represented on the council. But Adkisson and Harpole said the chamber would not release the names or employers of council members.

In addition to questions of conflicts of interest, there was also a dispute over whether “stakeholder meetings” seeking comment on the regulation and conducted by the cabinet were public. After the legislative subcommittee deferred the regulation in February, the cabinet conducted two such meetings, one on Feb. 22 and the second on Feb. 26.

When a CNHI reporter showed up at the Feb. 22 meeting, Scott said the meeting was not a public meeting but rather for “invited stakeholders,” but he did not ask the reporter to leave, asking him several times instead how the reporter learned of the meeting.

However, on April 4, the Kentucky Department of Environmental Protection posted on its website a notice which said: “On Feb. 14 the division also notified a number of interested stakeholder groups that it would hold two additional public meetings at which they could again be heard and ask questions regarding the proposed amendments.”

Asked about the discrepancy, Scott issued the following statement:

“While the stakeholder meetings were in fact meetings with the public, they were not public hearings in the context that the term public hearing is used in a regulatory promulgation sense. Public hearings, as the agency uses the term, are where the agency receives formal recorded testimony on a given regulation. Public or stakeholder meetings on the other hand are where the agency is able to have an informal back and forth discussion of the issues and provide presentations.”

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.

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