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Tomblin meeting on chemical tank bill excluded environmentalists

CHARLESTON, W.Va. -- Two weeks ago, Gov. Earl Ray Tomblin held a news conference to announce his legislative response to the Elk River chemical leak. The governor unveiled proposed legislation aimed at creating a new regulatory program for aboveground chemical storage tanks.

"This proposed legislation includes reasonable, commonsense provisions to regulate aboveground storage tanks across the state, including those located in areas of critical concern near our public water supply and distribution systems," the governor said at the Jan. 20 news conference.

A day earlier, a select group of business lawyers and industry lobbyists met with the governor's staff and officials from the state Department of Environmental Protection to go over the governor's bill.

"See everyone there and please be prepared to discuss the bill section by section," Jason Pizatella wrote in an email message announcing the meeting.

Pizatella called the event a meeting "with the stakeholders."

The West Virginia Chamber of Commerce was invited. So were the Oil and Gas Association and the Coal Association. Trade associations representing grocers, manufacturers, trucking firms and energy companies were included, according to the Governor's Office.

But the chief lobbyist for the West Virginia Environmental Council -- the environmental community's umbrella lobby group at the Capitol -- said that his organization wasn't included in the governor's meeting.

"Neither I nor anyone else I know of in the environmental community knew about that meeting," Garvin said Monday. "You telling me about it is the first I've heard about that meeting."

Asked what discussions the environmental council had about the governor's bill prior to its unveiling at that news conference, Garvin said, "There were none."

Garvin said that environmental group lobbyists weren't asked by the Governor's Office for their input as the bill was developed, and had only brief, informal discussions with DEP officials prior to the legislation being introduced.

"I've had some just offhand discussions with DEP," Garvin said. "Other than that, we really weren't given an opportunity to just sit down and tell the DEP or the governor what we thought."

Pizatella's announcement of the "stakeholders" meeting, held at the state Lottery Commission building on Pennsylvania Avenue on a Sunday afternoon, was among the records released by the Governor's Office in response to a Freedom of Information Act request about the chemical tank legislation.

Also included were email messages in which several prominent industry lawyers and lobbyists offered suggestions for the governor's legislation -- before the bill was finalized Jan. 20 or introduced Jan. 22.

Peter Markham, Tomblin's general counsel, said late last week that administration lawyers and a variety of officials from the DEP wrote the governor's proposal.

"There were a lot of cooks in this kitchen," Markham said.

Among those with input on a draft of the governor's bill was Markham's predecessor as Tomblin's general counsel, Charleston lawyer Kurt Dettinger, who is now with the law firm of Steptoe & Johnson.

"I reviewed it and offered some comments on it," Dettinger said. "As you digest a big piece of legislation, you ask questions and you provide feedback you are asked to provide."

Dettinger refused to identify the client he was working for in reviewing the governor's chemical tank legislation. Records at the state Ethics Commission list him as a lobbyist for Antero Resources, a major natural gas producer, and Braskem/Odebrecht, the company that proposes to build a natural gas "cracker" plant in Wood County.

In July 2011, when Dettinger was Tomblin's general counsel, he denied a Charleston Gazette public records request that sought information about what sort of input industry groups had on an executive order on regulation of the Marcellus Shale drilling boom in the northern part of the state.

Records show Dettinger was making suggestions to Pizatella about the governor's chemical tank bill as late as 10:23 a.m. Jan. 20, less than four hours before Tomblin announced his proposal during the 2 p.m. news conference.

Dettinger forwarded for Pizatella an email he received from another Steptoe & Johnson lawyer, David Flannery, in which Flannery suggested the bill should include the option of civil fines -- not just criminal penalties -- for violations of the chemical tank requirements.

Like Dettinger, Flannery declined to identify a client he was working for in reviewing the governor's draft legislation. Flannery was not listed as a registered lobbyist on the latest booklet published by the Ethics Commission.

Asked to describe his role in helping to develop the governor's legislation, Flannery said last week, "You give me more significance with your question than is probably appropriate. I wish I had that much stroke with the Governor's Office."

As introduced, the governor's bill added the language Flannery suggested, but increased the potential criminal penalties from six months in jail and a $10,000 fine to up to a year in jail and a $25,000 fine. Those penalties were reduced to the levels Flannery suggested in a related bill passed by the state Senate.

Records released by Tomblin's office also show that Rebecca Randolph, president of the West Virginia Manufacturers Association, submitted proposed legislative language to DEP general counsel Kristin Boggs at about 6 p.m. on the evening after the governor's "stakeholder" meeting.

In an email message to Boggs, Randolph provided a list of 18 different exemptions that would exclude various types of aboveground storage tanks from the governor's bill.

"In looking at this and determining what would address some of our concerns with the [bill], I'd submit the following for consideration," Randolph said.

Industry officials have said that the types of tanks proposed to be exempt are covered by other laws or regulations, but Sen. John Unger, D-Berkeley, has asked legislative staff to provide more details about those other laws or regulations.

The governor's bill did not include the exact wording proposed by Randolph, but it did include a long list of exemptions. The bill passed by the Senate contains similar exemptions, and citizen groups have complained strongly about those provisions.

During a public hearing Monday night, longtime West Virginia Sierra Club leader Jim Kotcon offered lawmakers some advice for moving forward and reforming the system in response to the chemical leak.

"Who are we listening to?" Kotcon asked. "If you want a bill that protects clean water, you should probably listen to people who advocate for clean water, not the polluters."

Later in the hearing, West Virginia Coal Association Vice President Chris Hamilton spoke on behalf of the state Business and Industry Council, a collection of industry trade groups.

"What occurred at Freedom [Industries] must never again happen in West Virginia," Hamilton told lawmakers. "And BIC members stand ready to offer our resources and expertise within our members as we craft this needed amendment to public policy in West Virginia."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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