A federal judge found merit in a case filed by retired coal miners alleging that CONSOL Energy engaged in a decades-long scheme to rob them of lifetime health benefits that were promised as a condition of employment (Karen Kasmauski | Getty Images)

Several retired coal miners are feeling validated this month as a federal judge found merit in their case alleging that CONSOL Energy engaged in a decades-long scheme to rob them of lifetime health benefits for them and their spouses that were promised as a condition of employment.

The coal miners who brought the case all worked at CONSOL Energy mines between 1969 and 2014. Unlike many of their colleagues, they abstained from joining a union to work in the CONSOL mines, largely due to promises made by leaders at CONSOL that if the workers stayed non-union, they would earn higher wages and receive lifetime health benefits that were competitive with those offered by the United Mine Workers of America.

Thousands of miners took CONSOL operators at their word that their benefits would remain as long as they served the company for at least 10 years or worked until they were 55 years old. The promises of lifetime health benefits were repeated time and time again — at human resources fairs, informational workshops for employees, company picnics and more — to workers across different states and different mining operations.

But in 2014, as many of the miners were forced to retire in preceding years due to downsizing at the mines and a sale of some CONSOL properties to Murray Energy, those promises were proven to be false.

Miners — who were told numerous times without question that their health coverage would persist for them and their spouses into retirement — began getting letters saying that coverage was coming to an end.

Allan “A.J.” Jack, a 75-year-old former coal miner who retired in 2009 after spending 18 of his 39 year career underground for CONSOL in Pennsylvania, remembers getting the initial letter in the fall of 2014 telling him the benefits would expire in 2019. Less than a year later, he received another letter from CONSOL, this one saying both he and his wife’s medical, dental and prescription insurance coverage would end on Dec. 31, 2015.

“I was devastated. I mean, you retire and you just know that you’re going to have this,” Jack said in an interview with West Virginia Watch. “Why would anybody tell you time and time again that you were going to have these benefits and then take them away? It really is devastating.”

Jack was initially told of the lifetime health benefits in an orientation in 1991. He was working at another mine in Pennsylvania at the time but — based largely on the promises of lifetime benefits, which were already guaranteed to miners affiliated with the UMWA, and a 401(k), which union miners did not qualify for — decided to leave his job and begin work at the Enlow Fork mine in southwestern Pennsylvania.

Throughout his nearly two decades with CONSOL, not one manager mentioned to him that the company reserved the right to terminate the retiree benefits at any time.

According to the order issued on Sept. 30 by Senior U.S. District Judge John T. Copenhaver Jr., the fact that CONSOL executives repeatedly failed to tell employees working for the company in different states, at different mining operations and in different departments this fact was a clear misrepresentation of benefits and therefore a violation of the company’s fiduciary obligations.

Terry Prater, a 69-year-old who worked for CONSOL for 15 years in Kentucky, unexpectedly retired from his job on Sept. 30, 2014. He showed up to work for his evening shift that day like he usually did. In the middle of his shift, Gerald Kowzan — who worked in human resources for CONSOL — addressed employees, telling them that anyone who retired on or after Oct. 1 would not be receiving their promised lifetime health, dental and prescription insurance benefits. A coworker asked what would happen if they retired before midnight. Kowzan told them if they did, they could get the benefits for five years.

“There were six of us there on the night shift who had put the time in and were of age to retire. So at 11 o’clock, we hollered in the foreman’s radio. We told him to come and get us, we’re retiring,” Prater said. “I got my insurance and kept it for 15 months, then I got the letter that it was going to be taken away. Just like that and it was gone.”

A ‘union-busting scheme’

Sam Petsonk, a labor rights attorney who litigated the CONSOL case along with attorneys from the nonprofit legal advocacy organization Mountain State Justice, said the repeated lies told by CONSOL to its employees were clearly part of an overarching scheme to keep the mines from being unionized.

This was despite attempts at those mines by workers over decades to gain union recognition and join the UMWA.

“Anyone who’s lived in Appalachia over the last 30 years has watched this union-busting scheme unfold. I mean, many miners wanted to organize a union at these operations,” Petsonk said. “I grew up in these communities. I watched the parents of many of my friends choose to work in non-union jobs because of misrepresentations just like this. An entire generation of wealth that our miners thought they had earned is now gone because of these broken promises.”

Before beginning to offer the promise that CONSOL employees would have lifetime benefits, the company was a “wall-to-wall” union operation, Petsonk said. The misrepresentations were an attempt to compete with union operations, where workers were guaranteed more protections and legally mandated to receive those lifetime benefits through an act of congress.

“The judge found and agreed that Bobby Brown, the CEO of CONSOL [at the time] directed this scheme to defraud thousands of Appalachian coal miners out of joining the union, out of gaining those benefits,” Petsonk said. “That’s what the judge found, that is a finding of fact in this record.”

And the misrepresentations weren’t the only union-busting activities happening at the CONSOL mines. Other attempts were more direct and explicit — and they worked.

Jack remembers colleagues of his at the Enlow-Bailey mining complex beginning work to unionize around 1992. There were picket lines, walkouts and other traditional unionizing attempts. Jack said they had things thrown at them. Four of his tires were slashed. He and his colleagues were threatened and told that unionizing would lower their wages and mean worse health insurance.

“We retired thinking that way, thinking, ‘man, we did have better pay and we’re going to have all these great retirement benefits,’” Jack said. “Well, in the end we ended up with nothing. They gave us nothing they told us they would and they left us all without.”

Jack said it was clear that the attempts by CONSOL to remain non-union was a scheme because of how widespread the lies were told.

Sitting in a courtroom in 2021, when the case went to trial, he remembers looking around at other former miners he’d never met. Most worked in other states, many in different parts of the coal mining operations. All of them, however, had been fed the same lines about lifetime benefits throughout their careers, and now all of them were going without those promised benefits.

“I’m from Pennsylvania. There were some there from West Virginia, from Kentucky. And I just said to the judge, ‘isn’t it amazing that I never saw any of these people before? That we don’t know each other? But we all were told the same thing by the same people,” Jack recalls. “I mean, what are the odds of that? It was clear that it was planned to tell everybody the same thing and to just renege on the whole thing, right?”

What the case means and what’s next for the affected miners

The case brought to the federal court was not an all around win. Only two of the seven plaintiffs — including Prater — were successful in proving their cases against CONSOL, and those successes were only granted in part. Others were thrown out due to limitations with the claims process, missed deadlines and other technical reasons, as well as not enough clear evidence proving that they individually were misled by the company’s leadership.

Overall, at least 3,000 miners were affected by the misrepresentations and lies from CONSOL operators over decades. Petsonk said that while it’s good that the court saw clear merit in the case and the claims made within it, much work remains to get justice for all the miners. In last month’s order, the judge wrote that the claims would likely need to be decided on a case-by-case basis.

But that’s nearly impossible, Petsonk said.

Now, he and his colleagues are reassessing and moving forward with filing an appeal to last month’s order in the hopes that the case can turn into a class action proceeding for all those affected.

“We’re very grateful to the judge for finding merit in this case [but] we’re going to ask the appeals court to review, to see this as a class action,” Petsonk said.

In the meantime, however, those affected like Prater and Jack will remain in limbo.

While the judge ruled partially in favor of Prater, his benefits won’t kick back in until all appeals are adjudicated. And while the judge agreed that Jack proved his claims against CONSOL, his claim came too late to entitle him to a remedy.

For Jack, who was grateful to the judge for agreeing with his claims, continuing to go without the benefits is having real repercussions in his and his wife’s lives.

Throughout Jack’s last 25 years of employment, he never missed a single day of work. He took pride in what he did and believed those above him who promised his commitment would be worth it.

And coal mining, as well as aging, is hard on the body. Both Prater, Jack and their wives are paying thousands of dollars a year for out-of-pocket medical expenses that they never planned for.

In the years since their promised lifetime benefits were pulled, it’s been difficult for Jack and his wife to enjoy their retirement.

“When you’re working that long, especially for a coal mine, it’s three different shifts, it’s weekends, it’s long hours and a lot of things that you want to do in life, you sort of pull off until you retire,” Jack said. “Hopefully, at that time, your health is good enough to do those things. And so now we want to make plans to maybe travel a little bit, do the things we weren’t able to do when we were younger, but then these medical expenses come up that you never thought you’d have to pay. Those plans you have, you’re putting them aside again, and this time until when?”

This story is republished from West Virginia Watch, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

Mountains near Cumberland in Harlan County bear the scars of mining after the coal was stripped, August 24, 2019. (Photo by Scott Olson/Getty Images)

Kentucky’s Republican attorney general citing concerns from Democratic Gov. Andy Beshear’s administration is trying to block a revamped federal complaint system that citizens have used for decades to report suspected dangers and hazards from the strip mining of coal.?

The Surface Mining Control and Reclamation Act of 1977, signed into law by President Jimmy Carter, delegated authority to two dozen states including Kentucky to regulate the environmental impacts of mining and mine reclamation.?

The law gave citizens the right to report suspected violations not addressed by state authorities directly to the federal Office of Surface Mining and Reclamation Enforcement (OSMRE) to investigate.?

Federal regulators can then issue a notice with a 10-day deadline to state regulators to either fix the issue or explain why it hasn’t been fixed. After the 10-day deadline, federal regulators can order an inspection of the mine site if they’re not satisfied with the state’s response.?

But a Trump administration rule change in 2020 required federal regulators to gather additional evidence from state agencies before issuing a 10-day notice, something environmental advocates say has bogged down the process and significantly reduced the effectiveness of the oversight mechanism.?

The Biden administration is now seeking to largely restore the original system that allows OSMRE to issue notices without having to gather state input beforehand, a requirement that OSMRE said creates “undue delays.” Under the Biden rule, state feedback would be incorporated into the federal investigation after the 10-day notice has been issued.?

Kentucky Attorney General Russell Coleman and other Republican attorneys general have sued to block the revamped system, ?and a federal judge recently allowed advocacy groups that have utilized the complaint system to intervene in the case.

The Republican attorneys general cited in part concerns from Kentucky Department for Natural Resources Commissioner Gordon Slone, who wrote in a June 2023 public comment that records from federal regulators in determining whether to issue a 10-day notice were “insufficient” compared to records from state authorities.?

“[The department] believes that the OSMRE’s goal should be to ensure that [10-day notices] are only issued when available information — including information that the State regulator can easily provide upon request —? supports the existence of a violation,” Slone wrote.?

Slone also said his department received an average of nearly nine 10-day notices each year between 2010 and 2019. Under the Trump administration system, the number of annually issued notices “plummeted” to 0.6 notices a year.?

Slone argued increased collaboration and communication between federal and state regulators led to fewer notices issued, compared to the increased “administrative burden” he said states would face by having to deal with more 10-day notices under the Biden administration’s action.?

Willie Dodson, the coal impacts program coordinator for Appalachian Voices, one of the advocacy groups intervening in the case, isn’t convinced by those arguments.?

Dodson said he’s used the complaint system in recent years to get Kentucky regulators to address pollution by an Eastern Kentucky surface mine of a waterway that’s home to endangered or threatened aquatic life.?

He said federal regulators can choose not to issue a notice in response to a complaint. He asserted arguments opposing the Biden administration’s revamped system are “just a thinly veiled way of saying that the feds should let us do whatever we want.”

“It doesn’t in any way take away the fact that Kentucky is the primary organization issuing permits, issuing enforcement actions,” Dodson said. “If Kentucky fails to issue enforcement actions that they should be issuing and the community member catches that, the community member can bring the information to OSMRE who then has an oversight role.”?

Tom FitzGerald, counsel for the environmental legal group Kentucky Resources Council that’s representing the intervening advocacy groups in the court case, pointed to another example decades ago for why a robust complaint system is needed.?

In the 1980s, FitzGerald represented a retired Perry County educator who, the way he described it, worried about a hazardous sediment pond built above her home.?

Before Muriel Smith finalized a divorce in 1981 and took sole ownership of her property, her husband waived the law’s 300-foot buffer requirement and gave written permission to a coal company to conduct “surface mining operations” nearby. But she personally didn’t consent to it, and state coal mine regulators gave the coal company a permit for the pond. The company built it the following year less than a football field from her home.?

When she appealed to Kentucky regulators saying state law had been violated because the pond was built too near to her home and without her permission as the now-sole homeowner, they dismissed it as a “property rights” dispute. So, she turned to the federal complaint system established through SMCRA and appealed to OSMRE.

FitzGerald wrote in a Sept. 13 filing that without the federal? action in response to the complaint system, Smith would have endured years of “living directly below a high-hazard embankment sediment structure illegally located immediately uphill from her home, with the attendant risk of wash out or catastrophic failure of the structure, and the impairment of value and use of her land.”?

The Kentucky Court of Appeals ruled in 1986 that the state’s “hands off” approach toward Smith’s request for help was “seriously flawed” and ruled in her favor.?

A new federal rule is aimed at reducing coal miners’ exposure to silica dust, a leading cause of black lung disease. (Getty Images)

This Labor Day, as a new federal rule is being rolled out to prevent deadly black lung disease in miners, Christopher Williamson is remembering the coal miners who fought for the creation of his agency and who weren’t afforded the protections that current and future workers hopefully will.

Williamson, assistant secretary for the U.S. Mine Safety and Health Administration, is a native of Mingo County in southern West Virginia which is separated from Kentucky by the Big Sandy River. Since he entered his federal position about two years ago, he’s focused heavily on developing and now? implementing the new silica rule that was finalized earlier this year.

“I come from the southern coalfields. I know mining. This issue is not one that needed to be explained to me … it was a priority for me from the moment I got confirmed and walked in the door at MSHA,” Williamson said. “Looking and reflecting on it in the context of Labor Day — especially in the context of all the labor history in West Virginia that I’m very familiar with and happened in my backyard — all these miners in West Virginia fought for my agency to be created, fought for these regulations that are in place, fought for the Mine Act to be put in place.”

When the Federal Mine Safety & Health Act of 1977 was passed, Williamson said, it’s main goal was made clear in the first sentence on its first page: “the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource — the miner,” the act reads.

Today, Williamson said, the new silica rule will, hopefully, do just that.

The new rule — initially proposed in July 2023 — implements for the first time ever a separate exposure limit for silica dust in mines, cuts the maximum exposure limit to 50 micrograms per cubic meter for a full-shift and creates an “action level” for when exposure comes at 25 micrograms per cubic meter for a full shift. It also establishes uniform exposure monitoring and control requirements for mine operators to follow as well as increasing sampling requirements. It was finalized in April and most of it began to go into effect in June.

The rule’s implementation comes more than five decades after the federal government first recommended limiting silica exposure among workers based on a wide body of evidence and years after other industries adopted similar standards to enforce the exposure limits of silica.

It also comes as younger coal miners in the region are being diagnosed with the disease at rates unseen by their predecessors due to a lack of easily accessible coal and an increase in the amount of silica-rich sandstone they have to dig through to reach what remains.

According to the Centers for Disease Control and Prevention, about 20% of coal miners in central Appalachia are suffering from black lung — the highest rate detected for the disease in more than 25 years. One in 20 of those coal miners are living with the most severe form of the condition, and fatalities tied to black lung are steadily increasing in central Appalachia faster than the rest of the country.

“Unfortunately, there’s been too many generations of miners in West Virginia and other places that have had to sacrifice their lungs just to support their families,” Wiliamson said. “This rule is a huge step forward to try to prevent those types of things from happening.”

The rule grants MSHA, for the first time, the authority to issue citations at mines that report elevated levels of silica dust without efforts to remediate. When levels are too high, the agency can issue a withdrawal order, meaning workers must leave the mine until the levels drop and corrective actions are taken. Williamson said this alone is an improvement that will change how the agency is able to perform its oversight responsibilities.

“We have all these enforcement tools that we can’t use,” Williamson said. “For the first time, we’re going to be able to use the full suite of MSHA’s enforcement authority to protect miners from exposure to silica, and that’s huge. We hope we don’t have to use those things, but we will if we have to.”

The rule isn’t without its challenges, no matter how unlikely they may be to take hold.

In Congress, an appropriations bill for the federal Department of Labor is awaiting consideration by the U.S. House of Representatives. It contains a rider that, if adopted, would halt the use of any Department of Labor funding for the implementation of the rule. That bill previously passed a House subcommittee and the appropriations committee. The Senate’s version of the same appropriations bill, however, does not contain the same language.

Coal mining advocates have decried the efforts to stop the funding, which would complicate enforcement of the rule. Even if it’s not adopted — which is likely — they’ve said efforts by Rep. Robert Aderholt, R-Ala., to include the language is “unconscionable, indefensible and frankly insulting” to the nation’s miners.

For Williamson, until something affecting the rule is actually passed, the efforts in Congress are little more than background noise. Officials at MSHA, he said, are staying busy educating those in the mining community about the new policies and ensuring resources are available to become compliant before enforcement starts next year.

“I appreciate the process and I appreciate that [Congress goes] through it, but we’re full steam ahead. We’re implementing this thing,” Williamson said. “We’ve got a mission to complete, we’ve got miners to protect, and unfortunately, there are too many that are out there that need this rule and need these health protections. We’re not going to sit around and wait. We’re moving full steam ahead.”

This story is republished from West Virginia Watch, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

Gov. Jim Justice stands with his family — daughter Jill, wife Cathy and son Jay — at his final State of the State address in Charleston, W.Va., on Jan. 10, 2024. (Office of the Gov. Jim Justice)

Federal attorneys asking a court to hold 23 of West Virginia Gov. Jim Justice’s family-owned coal companies in contempt for nonpayment of health and safety fines entered a filing this week saying the companies shouldn’t have entered into a payment plan if they knew they couldn’t honor it.

The filing, entered Tuesday in the U.S. District Court for the Western District of Virginia and first reported by West Virginia MetroNews, comes in response to a memorandum filed last week by Justice family attorneys. In that filing, they contend that the companies in question are too broke to pay the nearly $600,000 they still owe to the government.

In Tuesday’s filing, the federal attorneys say this claim has been made with no evidence and, as such, should not be considered as a valid defense against putting the companies in contempt. Further, the companies should not have entered into a settlement agreement in 2020 if they knew they would not be able to pay what they owe on the set schedule.

“[The companies] willingly and knowingly entered into the payment plan and consent judgment in this case, representing to the government and the Court that it would comply with the payment plan in the consent judgment,” the filing reads. “However, they now claim that they faced financial difficulties at the time of the consent judgment that preclude them from being able to pay. If [the companies] knew they could not comply with the consent judgment at the time of execution, they should have said so.”

In 2023, according to the filing, representatives for the Justice companies told the government that they “had difficulty” making payments, but that the situation would be remedied by borrowing money from another business to catch up on payments. Federal representatives agreed at that time to adjust the payment plan.

“Yet once again, [the companies] failed to comply with the adjusted payment plan. [They] have not provided any explanation for their noncompliance,” the federal attorneys write. “Between August 2023 and?present, [the companies] did not communicate to the government an inability to pay on the modified schedule, nor did they seek alternative payment arrangements with the government.”

In a memorandum earlier this month asking the court to hold the companies in contempt, federal attorneys provided dozens of emails sent between Aug. 14, 2023 and July 9, 2024 reminding the companies of their debts and the past due amounts.

Responses from the companies’ attorneys were few, even as the companies fell months behind on their payments.

“Instead of notifying the government about their alleged inability to comply with the consent judgment, [the companies] have kept their proverbial heads in the sand,” the federal attorneys wrote in Tuesday’s filing. “Even when the government notified Defendants in July 2024 that the government would have no choice but to seek action with the Court unless payment in full was made, [they] offered no explanation or response.”

In last week’s memorandum from the Justice companies, attorneys argued that it would be improper to hold the companies in contempt since their financial struggles are not self-inflicted and have existed since they agreed upon the payment plan. They said the economic downturn in the coal industry is to blame for the financial challenges at the companies. The federal government, they continue, was aware of these challenges.

Since payments were being made — albeit sporadically — from 2020 on, the feds argued Tuesday that this defense shouldn’t stand.

Also in last week’s memorandum, Justice family attorneys requested discovery for the ongoing case. While alleging a dire financial situation at the companies, they did not provide any exhibits or evidence to back up this claim in their filing.

In Tuesday’s filing, federal attorneys say that the request for discovery is “unnecessary and a delay tactic.” The companies, they say, are responsible for proving they are unable to meet their financial obligations and evidence underscoring that claim can be presented at a hearing for the case if it exists.

The nearly $600,000 the federal government is seeking to collect comes from a decade’s worth of unpaid health and safety fines at Justice-owned coal mines. The debt, at one point, totaled about $5.13 million from hundreds of violations incurred since 2014.

The government initially filed suit against the Justices in 2019 to collect the money. In 2020, the Justice-owned companies and the government entered into an agreement where the family would make monthly payments to pay off the debt by March 2024. The debt, however, was not paid off.

Justice has maintained that he is not at all directly involved in his family’s business empire, leaving the companies in the leadership of his children despite refusing to enter most of his businesses into a blind trust.

He said earlier this month that, “if there’s a problem, it gets taken care of … We may be a few minutes late to the fire, but we always show up at the fire.”

Last week, however, Jay Justice — Jim Justice’s son and president of several of the family’s companies — failed to “show up at the fire.”

A federal judge in Alabama filed an order last Thursday finding Jay Justice and Bluestone Coke — of which he is president — in civil contempt.

The order, according to Inside Climate News, came after Jay Justice failed to attend a hearing — despite being ordered to do so by the federal court — for a lawsuit alleging the coking plant is responsible for polluting groundwater and rivers and violating the Clean Water Act.

“[Jay Justice and Bluestone Coke] have violated three separate court orders requiring them to produce responses and negotiate, in good faith, dates for depositions,” the order reads.

The story is republished from West Virginia Watch, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

The Greenbrier Resort is seen on Aug. 23, 2024 in White Sulphur Springs, W.Va. Portions of the resort, including the hotel, were scheduled to go to public auction this week, but a deal struck between creditors and the governor’s family last week averted the foreclosure. (Chris Jackson | West Virginia Watch)

LEWISBURG, W.Va. — At Lewisburg’s Carnegie Hall, president and CEO Cathy Rennard watched with some anxiety earlier this month as news unfolded that The Greenbrier Hotel was facing foreclosure due to unpaid debts by its owners, Gov. Jim Justice and his family.

The hotel, a crucial part of The Greenbrier resort, which is Greenbrier County’s biggest employer and the largest tourist attraction in the region, was to be auctioned on the county courthouse steps just three days before Carnegie Hall was set to hold its largest annual fundraiser on the resort’s Chesapeake Lawn.

Rennard, no stranger to the nature of the Justices’ business dealings, was banking on at least one delay for the auction.

“I just kind of made a mental decision that I’m just going to walk on as if everything’s going to be all right, and it appears that it will be, for the moment,” Rennard said.

With days to spare last week, the auction was averted. The Justice companies last Thursday announced an agreement with Beltway Capital, which is associated with credit collection company McCormick 101 which bought the loan documents and deed of trust for the hotel from JPMorgan earlier this year.

Under the agreement, the Justice family is supposed to make a payment to Beltway Capital by Oct. 24. If the payment is made, then “all issues concerning The Greenbrier and Glade Springs are concluded.”

“We’ve cleared this [hurdle] now,” Rennard said of the news. “But yeah, now there’s another date looming.”

The Justice family still owes about $9.4 million on loans procured to purchase The Greenbrier in 2009. But those unpaid loans aren’t the only challenges facing the owners of the historic resort.

Louisiana-based bank First Guaranty is suing The Greenbrier Hotel Corporation — the company, owned by the Justices, that operates the resort — over nonpayment of a $35 million COVID-19 relief loan granted to the company in 2021. According to the lawsuit, there have been no payments made on that loan to date.

And perhaps most pressing is the fate of The Greenbrier employees’ health insurance.

According to a letter sent to workers last week, The Greenbrier Hotel Corporation is at least four months and $2.4 million delinquent — with another $1.2 million soon to be due — in premium contributions to the employee health fund. The company, according to the letter sent by attorneys representing the Amalgamated National Health Fund, has been taking money out of employees’ paychecks without remitting it to the fund.

Insurance coverage was initially going to be suspended for the employees on Aug. 27. When the auction was canceled, however, a union representative said that coverage would extend to Aug. 31.

In a news briefing on Aug. 22, Justice said there was “no possible way” that employees would go without health insurance and that claims that contributions were delinquent were untrue.

“And I’ll promise you to the good Lord above that insurance payments have been made and were being made on a regular basis just like we’ve done in the past in many ways,” Justice said.

In an email sent Monday, Ronald Richman, an attorney representing the health fund, confirmed that The Greenbrier Hotel Corporation is still four months delinquent on its mandated payments.

Justice, who is running a Republican campaign for the U.S. Senate, has remained steadfast that none of the challenges being brought against his family’s companies — including those facing The Greenbrier, a move by the federal government to put 23 of the family’s coal companies in contempt for nonpayment of health and safety fines and numerous lawsuits across several states looking to collect on unpaid fines, taxes and debts — are legitimate.

Instead, he’s said repeatedly that they’re the result of political attacks waged against him by Democrats who are threatened by the reality of him winning a seat in the Senate and flipping the body red.

‘We just need good, solid ownership’

Rennard, with Carnegie Hall, grew up in the Greenbrier’s shadow in White Sulphur Springs, and the hotel has always been part of her life, she said. Her father and grandfather practiced dentistry at the hotel’s clinic. She spent holiday dinners in the resort’s halls and celebrated numerous special evenings in the ballrooms.

For most of its history, The Greenbrier was owned by Chesapeake & Ohio Railway and its successor, CSX Incorporated. CSX put the hotel into bankruptcy in 2009. Court records indicated the company lost more than $90 million over five years of its operation, including $35 million in 2008.

Despite the financial challenges, Rennard said under CSX ownership, the hotel was always a source of pride for the area. There was “lots of angst” around it changing hands when the hotel went bankrupt about 15 years ago.

But when Justice purchased the resort in May 2009, she said, people in the community felt good about a fellow West Virginian “with skin in the game” buying it. Now, she said, it’s obvious the Justice companies have been through some “rocky times.”

And there’s no question that the hotel has some “maintenance issues,” like painting, that need to be addressed, she said. Many of The Greenbrier’s regular customers have noticed a decline in the facility, according to Rennard.

“I am so pro-Greenbrier,” Rennard said. “This county and this state needs The Greenbrier, and needs The Greenbrier to be in tiptop operating shape, and needs to restore that pride that the employee base once had about working there and being there.

“I’m hopeful that we’re going to be able to circle back around to that in one way or another, whether another hotelier comes in and ends up with it, that’d be great,” she said. “If the Justice family can get through this hard spot and come out on the other side and reinvest in the property and all that, that’s great, too. We just need good, solid ownership.”

For Kara Dense, president and CEO of the Greenbrier County Convention & Visitors Bureau, the possible sale of portions of The Greenbrier — the county’s “economic driver” —? caused some concern.

“But in the same realm, we also know that people were coming to the Greenbrier Valley as a destination and to The Greenbrier for over 200 years,” Dense said. “It’s not just some fly-by-night business type of thing. We have every confidence that everything will be taken care of and turn out well, and we will continue to market and do what we do: promote The Greenbrier, promote the destination as we always have.”

In 2022, tourists spent $382 million in Greenbrier County, which Dense said is likely the highest she’s seen in her 17 years at the CVB’s helm. The county ranked fifth of West Virginia’s 55 counties for tourism money spent that year, Dense said, citing the state’s annual economic impact study.

“[In] 2022 we were in the middle of a pandemic, and unlike a lot of destinations, our destination thrived during the pandemic, because we hit all of those areas that people were looking for as far as travel: wide open spaces, small towns, uncrowded areas,” Dense said. “The Greenbrier was a major part of that.”

The resort employs 1,500 to 2,000 workers, depending on the season.

In downtown Lewisburg, business owners say they depend on traffic from Greenbrier guests.

Sibel Mallory moved her boutique from Los Angeles to West Virginia, settling eventually in downtown Lewisburg before the COVID-19 pandemic. Most of her customers come from The Greenbrier, she said.

Lately she’s noticed fewer shuttles bringing guests from the resort to Lewisburg. The buses used to come a couple times a day to bring customers to restaurants and shops, she said, but that changed after the pandemic.

“I wish the Greenbrier owner — I don’t know Jim Justice but he’s the owner — would support us,” she said.

“We can’t cut off to his business,” she said, saying that the stores in Lewisburg aren’t competition for the resort but instead a local attraction for those who stay at it.

Shaye Gadowski, owner of A New Chapter Books on Washington Street, said the store’s customers are a mix of locals, visitors to the nearby New River Gorge National Park and from The Greenbrier. Downtown businesses rely on their neighbors, she said, something that was emphasized to her when a downtown Lewisburg art gallery closed last year.

“Even just having that space vacant for a bit, your foot traffic does change in that sense,” Gadowski said. “You don’t realize how much you rely on your neighbors until someone goes into the next phase of life. So we really do rely on each other.”

‘Pay your bills and let us be proud of how you do business’

Dense, with the Convention & Visitors Bureau, said people in the area are used to “disastrous things” happening.

Since Dense has been head of the CVB, in addition to the Greenbrier bankruptcy in 2009, the county suffered losses during the 2012 derecho and the 2016 floods, which killed 23 West Virginians. Fifteen of those who died were Greenbrier County residents. The bodies of two people swept away by the flood were found on The Greenbrier’s golf course.

“We’ve had some pretty dramatic things that have happened, disastrous things, and we’ve come through them,” Dense said. “And I think there’s just that feeling of hope, and knowing just the stability of the Greenbrier …

“We just feel like it’s always going to be there,” Dense said.

And, unlike other parts of West Virginia where out-of-state landowners can dominate, the Justices are members of the community, too.

Justice and his wife have opted to live full time in their Lewisburg home instead of the Governor’s Mansion, with the governor commuting to Charleston for work when necessary. This has brought criticism for Justice, who opponents have called a “part-time governor” due to his residency, his continued coaching of high school basketball teams and his insistence against putting most of his personal businesses in a blind trust despite saying his children are the ones responsible for running them.

But in Greenbrier County, the Justices are neighbors as well as the state’s first family. Rennard said her niece and nephew played on his basketball teams. When the 2016 floods hit, she recalls Justice and his wife, Cathy, driving a John Deere Gator to the makeshift command center in downtown White Sulphur Springs every night to check on response workers.

“His eyes would well up with tears, and I just saw a side of him after that that I had never seen before,” Rennard said. “So I think that’s kind of when I got a glimpse of his big heart.”

But two things can be true, Rennard said. It’s clear Justice cares about the community he lives in, but his family should also be responsible for paying its debts.

“He owes money. I think anybody who you ask around here is going to say, ‘pay your bills,’” Rennard said. “Pay your bills and let us be proud of how you do business.”

The recent challenges at The Greenbrier aren’t exactly unexpected for a business so big. Echoing a sentiment shared repeatedly by Justice, Rennard said it’s normal for businesses to have “bumps in the road.”

Now, she said, she hopes the family can focus on moving forward and catching up on its debts — not just for the community, but for themselves.

“I mean, they’re good people, and so I would like to see their family just be able to live and enjoy life,” Rennard said. “If that means handing The Greenbrier off to somebody else, great. If it means holding on to it and finding a way to really, really keep it moving forward and keep it in the shape that it should be in, then great.”

This story is republished from West Virginia Watch, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

The Kentucky Public Service Commission regulates the rates and services of more than 1,100 utilities, ranging from large investor-owned electric providers like Louisville Gas and Electric and Kentucky Utilities to small water districts that provide drinking water to rural communities.?(Photo by Scott Olson/Getty Images)

Gov. Andy Beshear has filled two seats on a new energy planning commission with utility executives who, like Beshear, opposed the commission’s creation.

Kentucky lawmakers earlier this year created the Energy Planning and Inventory Commission (EPIC) to slow the retirement of power plants fueled by coal and natural gas.

Investor-owned utilities and environmentalists opposed the legislation which Beshear vetoed, calling it unconstitutional for “numerous reasons.” The new law also was opposed by the United Way of Kentucky, the U.S. Chamber of Commerce and chambers of commerce around the state. The Republican-controlled legislature easily overrode Beshear’s veto.?

Among Beshear’s first eight appointees to the 18-member board are Louisville Gas and Electric and Kentucky Utilities CEO and President John Crockett and Duke Energy senior vice president Brian Weisker. The law requires that one of the governor’s appointees represent?a Kentucky investor-owned utility.

Weisker in a statement to the Lantern said he agreed to serve despite opposing Senate Bill 349 which created EPIC because it’s “vital that Duke Energy continues to have a voice in securing Kentucky’s energy future.”?

In March, Crockett told state lawmakers EPIC would be an “inherently political body” and that he feared it would be “just another layer of bureaucracy.” Crockett also has pushed back against Senate President Robert Stivers’ assertion that the state is “facing an electric reliability crisis.” LG&E and KU spokesperson Liz Pratt said Crockett agreed to serve on EPIC to “allow us to be part of the evaluation process and help responsibly shape the future of energy” while providing insights to “the long-term energy solutions proposed for the communities we serve and for Kentucky.”?

“As regulated utilities, we must make decisions in the best interests of all of our customers and continue providing safe, reliable and affordable energy,” Pratt said.?

Beshear also appointed Jeffrey Brock, an executive for Kentucky’s largest coal producer Alliance Resource Partners. Alliance’s CEO is Joe Craft, a prominent donor in Republican politics along with his wife and former candidate for Kentucky governor Kelly Craft. Brock serves on the Kentucky Coal Association’s board of directors.?

Under the new law, most of EPIC’s decision-making power will be vested in a five-person executive committee. Beshear appointed Eston Glover to represent utilities on the executive committee. Glover is the former president and CEO of Pennyrile Rural Electric Cooperative and chair of the Pennyrile Regional Energy Agency that’s trying to build a natural gas pipeline in Western Kentucky.?

Glover told the Lantern he had received a call asking about his interest in serving on EPIC but hadn’t spoken with the governor personally. He said he wanted to learn more about EPIC and its duties before commenting. “I’m interested in energy. I’m interested in making our community better and our region better and this state better,” Glover said.?

The new law puts the director of the University of Kentucky Center for Applied Energy Research, Rodney Andrews, on the executive committee. Andrews testified before lawmakers last week he is doing the “very early” work of understanding EPIC’s scope. Andrews would serve as EPIC’s executive director unless the executive committee chooses someone else.?

Beshear still has to appoint a third executive committee member who has experience serving as a CEO or board member “of a company engaged in the production of coal.” The full board will choose the final two members of the executive committee.?

The new law set a July 1 deadline for Beshear to appoint EPIC members. He still has multiple appointments to make from nominations by industry groups such as the Kentucky Oil and Gas Association, Kentucky Association of Electric Cooperatives and Kentucky Industrial Utility Customers. The law reserves one seat for an appointee representing residential electricity consumers.

The law also requires EPIC to submit a study of the state’s electricity supply and the impact of federal policies on it by Dec. 1.?

Another of Beshear’s appointees, Mark Gooch, an executive of Community Trust Bank, has connections to One East Kentucky, an economic development nonprofit that opposed EPIC’s creation.??

Colby Kirk, CEO and president of One East Kentucky, told the Lantern that Gooch served on One East Kentucky’s board until 2023 and was board chair when Kirk was hired. Kirk emphasized Gooch wasn’t involved with the decision to oppose SB 349 this year. Gooch didn’t return emails or a message at his office requesting an interview.

Kirk said One East Kentucky’s decision to oppose the creation of EPIC was spurred by their local investor-owned utility Kentucky Power. Kentucky Power’s COO and president Cynthia Wiseman serves as the current board chair of One East Kentucky, and Community Trust Bank has membership on the board.?

“I felt that it’s just another, I would think, unnecessary barrier or layer of red tape,” Kirk said of EPIC. “We already have a Public Service Commission, and we already have an Office of Energy Policy. You know, what’s the real function of this?”

Nanette Mahler, left, and Tracy O’Neill, walk along Macon Wall Road in Cheatham County, Tennessee, near the site of a proposed Tennessee Valley Authority gas power plant project. Local backlash against the proposal comes as the federal utility faces bipartisan legislation in Congress seeking to boost transparency in its planning process and scrutiny of TVA’s anemic renewable power growth compared to other utilities. (By Robert Zullo/ States Newsroom)

ASHLAND CITY, Tenn. — When he heard about the sale, Kerry McCarver was perplexed.

In 2020, the mayor of rural Cheatham County discovered that the Tennessee Valley Authority bought about 280 acres of rolling farmland “in the middle of nowhere” in his county, which lies just west of Nashville and is home to about 42,000 people.

He asked another county official who formerly worked for the TVA, the nation’s largest public power company, to find out what it planned to do with the land.

The answer they got was “future use,” and they speculated a solar farm might be in the works.

“It’s kind of the last we thought about it,” McCarver said during an interview in his office in May. “Then a year ago last summer, TVA called here needing a place to have a public meeting.”

The authority was now proposing a 900-megawatt natural gas-fired power plant, battery storage, pipelines and other associated infrastructure for the site, which came as a shock to McCarver and many other locals who felt it was wholly inappropriate for the area.

“I called the county attorney and said ‘What’s our options?” McCarver said. The answer he got: “It’s TVA. You don’t have any options.”

Opposition to the Cheatham County project dominated a public “listening session” of the TVA’s Board of Directors in May, when TVA officials told States Newsroom that the proposed plant is in the early stages of development and just one potential option to meet growing power demand in the region and replace retiring coal power.

“We understand that some members of the Cheatham County community do not view this location as appropriate for a new generating site, and we respect that viewpoint,” TVA spokesman Scott Fiedler said in late June. “No decisions have been made.”

However, the backlash comes as the federal utility faces bipartisan legislation in Congress seeking to boost transparency in its planning process as well as its management and salary structure. TVA has also been in the crosshairs of green groups over its planned gas power buildout, which is among the largest proposed in the nation, and anemic renewable power growth compared to other utilities.

“Back when it was created in the 1930s, TVA was on the cutting edge of transforming a region of the country and investing in a lot of infrastructure to create that transformation,” said Amanda Garcia, an attorney with the Southern Environmental Law Center who has worked on TVA issues for a decade.? “We‘re just not seeing that happen now.”

‘Clearly a laggard’?

Created by Congress in 1933 during the Great Depression, the TVA today provides wholesale electricity to 153 local power companies serving 10 million people in Tennessee and parts of six neighboring states.

The authority is replacing major coal-fired units at its Kingston (site of a massive coal ash spill in 2008) and Cumberland plants with gas generation and is planning to retire all of its coal power fleet by 2035. It has set a goal of 10 gigawatts of solar power by 2035 and boasts that 55% of its electric generation is carbon free, most of it hydroelectric and nuclear power. And TVA President and CEO Jeff Lyash says a little less than half of the 10 gigawatts of solar it wants to put in by 2035 is already “in operation or in development and construction.”

For comparison, though, utility giant Duke Energy had more than 10 gigawatts of solar installed across its 16-state footprint as of 2022. Environmental and clean power groups say TVA, a federal nonprofit power company, could be doing much more to advance a transition to cheaper, cleaner power.

“They, unlike many utilities, have the ability to do big things and do big things faster,” said Daniel Tait,? executive director of Energy Alabama, a clean energy advocacy organization, and a research and communications manager for the Energy and Policy Institute, a utility watchdog group.

Tait and others say TVA’s leadership has been historically dismissive of the role renewable power can play on the grid.

“TVA is clearly a laggard when it comes to renewable energy,” said Stephen Smith, executive director of the nonprofit Southern Alliance for Clean Energy who has served on TVA advisory panels in the past. “Florida Power & Light has deployed more solar in a quarter than TVA has in their whole history.” Smith, who joked that he’s been “beating his head against the gates of TVA since 1993, said the authority was created to “lead on big national issues” but isn’t living up to its legacy.

“They’re not demonstrating leadership on renewables, they’re not demonstrating leadership on energy efficiency. They’re not demonstrating leadership on (battery) storage,” he said, partly the result of what he called an “institutional bias” against renewable power.

TVA officials reject that notion, with a spokesman telling States Newsroom that TVA is a “clean energy leader.”

However, Lyash acknowledged at the May board meeting that supply chain challenges brought on by the pandemic, inflation, difficulty securing land for solar and the TVA’s own interconnection delays (it also runs the electric grid in its service area) have created snags.

“We’re not satisfied. We’re? going to revise our processes,” Lyash said. “We’re taking a hard look at how we can accelerate the deployment of clean energy assets. It will be a focus of ours in the coming year.”

In an interview, Lyash said the TVA is pursuing new initiatives to advance solar development,? like its pilot Project Phoenix, which would put solar panels on closed coal ash sites.

“If this is successful, and it looks like it will be, this will be replicated across our whole system,” Lyash said.

An ‘incredibly weak board’

Still, TVA, which now has a board largely appointed by President Joe Biden, remains out of step with the president’s own aggressive power sector decarbonization goals, green groups note. (The Sierra Club gave the TVA an “F” last year on its latest ranking of how well utilities are living up to their own decarbonization goals and transitioning to cleaner power).

“There’s a lot of room for the Biden administration to deepen their relationships with TVA,” said Garcia, the SELC attorney. “If the largest federal utility isn’t even coming close to that, then how can we have hope that we’re going to achieve that target to decarbonize the grid?”

The White House did not respond to an inquiry on TVA’s gas buildout or additional appointments to the board (two members appointed by former President Donald Trump saw their terms expire earlier this year.) Another Biden nomination for the TVA board has been before a U.S. Senate committee since January. TVA’s nine-member board is supposed to be its chief regulator, since TVA does not answer to state utility commissions in its territory. But, critics note, the board is part time, lacks its own staff and usually defers to the TVA executive leadership on big decisions like power plant construction.

Smith called it an “incredibly weak board led by an executive staff that’s accountable to no one,” adding that reformers have pushed for the TVA board to attend meetings of the National Association of Regulatory Utility Commissioners and hire their own staff.

“I don’t know how a part-time board with no staff? and no technical capabilities can review something like an integrated resource plan effectively,” said Dave Rogers, deputy director of the Sierra Club’s “Beyond Coal” campaign.

The TVA’s long legacy in the South?

In the U.S. electric utility landscape, there’s really nothing like the Tennessee Valley Authority Created by an act of Congress in 1933 as the nation was mired in the Great Depression, the authority was tasked with, among other jobs, taming flooding and improving navigation along the Tennessee River, reforesting lands, erosion control for farmers, malaria prevention and electric power production, initially through a network of dams and hydroelectric plants.

“This in a true sense is a return to the spirit and vision of the pioneer,” President Franklin D. Roosevelt said in a message to Congress asking for legislation to create the TVA. The authority looms large in the lore of the region as a result of the surge in economic development and living standards it unleashed in what had been one of the most impoverished parts of the country. Average yearly income in the Tennessee Valley was about $168 in 1933, half the national average at the time.

“The most dramatic change in Valley life came from the electricity generated by TVA dams,” the National Archives notes. “Electric lights and modern appliances made life easier and farms more productive. Electricity also drew industries to the region, providing desperately needed jobs.” During a tour of the area after the TVA’s creation, the journalist Lorena Hickok wrote in a field report to the Roosevelt administration that “a promised land, bathed in golden sunlight, is rising out of the gray shadows of want and squalor and wretchedness down here in the Tennessee Valley these days.”

Indeed, not too many electric utilities get a shout out in smash country songs.The Bob McDill-penned “Song of the South,” which became a hit for the band Alabama in 1989, also speaks to TVA’s legacy: “Cotton was short and the weeds were tall, but Mr. Roosevelt gonna save us all. … Papa got a job with the TVA. We bought a washing machine and then a Chevrolet.”

There was a darker side to all that progress, however. Thousands of people across the region were displaced and in some cases entire towns were flooded, creating a number of what the Tennessee State Museum calls “underwater ghost towns.”

Today, the authority has about 10,000 employees, a budget of more than $12 billion, 29 hydroelectric plants, four large coal plants, three nuclear power plants and 17 natural gas plants, among other assets, and has one of the largest transmission systems in North America — 16,400 miles of lines covering 80,000 square miles.. It still plays a major role in economic development, but also has suffered some very public black eyes over the years, including a devastating coal ash spill in 2008 and subsequent litigation alleging the workers who cleaned it up, many of whom have since fallen ill and died, were not adequately protected. The TVA was also forced to implement its first-ever rolling blackouts in 2022 during Winter Storm Elliott as fossil fuel plants tripped off line. Since then the TVA has spent more than $123 million on winterization upgrades at the plants and made it through its highest ever peak demand during a cold snap last winter without any blackouts. – Robert Zullo

‘More transparent’?

A big part of the problem for TVA’s would-be reformers is the so-called integrated resource planning (IRP) process. Though the process varies by state and regulatory regime, many utilities across the country file IRPs with state regulators that lay out forecasts for electric demand and outline how they intend to meet their obligations to customers, including what generation and transmission projects they are likely to build under different scenarios. The process provides an opportunity for ratepayer advocates, environmental groups and large industrial customers, among other intervenors, to challenge utility assumptions about demand growth and the best and cheapest way to provide electric service.

TVA does compile an IRP, and it handpicks a working group of outsiders (who are asked to sign non-disclosure agreements, participants say) to advise on the plan. The last one was published in 2019. The current process has been paused in part because of new power plant carbon rules by the Environmental Protection Agency.

But bipartisan legislation introduced in Congress earlier this year by Tennessee Reps. Steve Cohen, a Memphis Democrat, and Tim Burchett, a Republican from the Knoxville area, is intended to pry open the TVA planning process. The bill would create an Office of Public Participation to “facilitate a process for meaningful and open public engagement … including opportunities for intervention, discovery, filed comments and an evidentiary hearing,” among other duties, a news release says. The bill would also direct TVA to include standard information about long-term sales and peak demand forecast, a summary of transmission investments, scenarios that “fairly evaluate demand-side and supply side technologies,” disclosure of modeling assumptions and analyses of fuel costs and environmental regulations, among other requirements.

Crucially it would also require the TVA board to “issue a decision approving, denying or modifying the plan, like every other utility regulator.”

Burchett and Cohen also introduced legislation that has passed the House and is currently in the Senate that would reinstate the TVA’s annual reporting requirement to Congress on executive and top manager compensation. In May, the TVA board voted separately to restructure its executive pay practices, cutting incentive-based compensation and changing the severance plan. (Lyash earned $10.5 million in 2023, making him the highest paid federal employee.)

“We’re trying to get them more and more transparent and give them some solid guidelines,” Burchett said in an interview. “If we say we’re going to let them do it, it’s not going to happen.”

Burchett, who added that TVA had become “too big and arrogant for their own good,”? said he and Cohen have been friends since their days in the Tennessee legislature.

“We might not agree on a lot of policy things,”? he said. “But public input and transparency are a couple of things we really agree on.”

Multiple attempts to reach Cohen for an interview were unsuccessful.

At the May meeting several board members acknowledged the need to improve transparency, including in publicizing lists of large capital projects approved during the budget process, and speeding up clean power projects.

“I also know that we need to go further, faster on our renewable energy goals,” Board Member Beth Geer said. Joe Ritch, the chair, said the board will “continue to review our governance processes and make changes and updates as appropriate.”

‘Everybody wins’

And while representatives of many of TVA’s local power companies showed up at the May listening session to voice support for the authority’s power plant buildout, others have some frustrations with the authority.

Most notably, Memphis Light, Gas and Water in 2022 refused to ink a new long-term contract with TVA, opting for a five-year rolling deal. It had been exploring leaving the authority as local groups pushed for cheaper and cleaner power. (Memphis LG&W turned down an interview request to discuss the contract situation.) Fiedler, the TVA spokesman, said 147 of the authority’s 153 local power companies have signed the long-term contracts.

The Southern Environmental Law Center, on behalf of several environmental groups, sued over the contracts, arguing the “never-ending” deals would “forever deprive distributors and ratepayers the opportunity to renegotiate with TVA to obtain cheaper, cleaner electricity.”

A judge dismissed the suit last year, finding the groups lacked legal standing. The contracts allow local power companies to build local generation resources like solar to meet up to 5% of their average electric needs but some argue TVA should be allowing more..

“It should be 10%,” said Gil Hough, executive director of TenneSEIA, a state affiliate of the national Solar Energy Industries Association. (Nashville Electric Service’s CEO said the cap should be 15%). Hough said local power companies can often get projects done faster than the TVA and the new generation, especially solar and battery storage, helps mitigate TVA’s concerns about growing electric demand.

Hough cited a partnership between Huntsville Utilities and Toyota in Alabama that will build a 30-megawatt solar system to power about 70% of a local Toyota engine plant as a prime example. The Huntsville Business Journal reported that it was the first time the local utility, taking advantage of the new 5% local generation flexibility option, would be buying power from “someone besides TVA.”

“Everybody wins,” Hough said. “Regular ratepayers win. Economic development. TVA doesn’t have to add more generation. Solar developers win.”

‘You feel helpless’

Both Tracy O’Neill and Nanette Mahler describe themselves as Nashville “refugees” who were seeking peace and quiet when they moved out to Cheatham County. Now, though, growing power demand in Middle Tennessee is a big part of TVA’s rationale for the gas plant, pipelines and transmission infrastructure proposed for Cheatham.

“They’re taking from us to give to other people,” Mahler said.

The neighbors aren’t aligned politically (Mahler is a conservative and O’Neill a liberal environmentalist) but they’ve bonded over their mutual dread of the proposed power plant. Both live close to the site and gave a reporter a tour of the area, a collection of old farmsteads and sparsely situated single family homes along narrow country roads.

“Who would have ever thought they’d come out here and do this?” Mahler said.

They’re both members of Presvere Cheatham County, a local group formed to oppose the project and the massive disruption they fear construction and operation of the plant will bring: heavy truck traffic, pollution, noise and light and wear and tear on flood-prone local roads, among other impacts.

Despite TVA’s assertions that the project is in the early stages and alternatives are being considered, Mahler said TVA’s contractors are telling locals it’s a “done deal.”

Both fault TVA for what they say was limited outreach to neighbors.

“It feels like they have been intentionally secretive,” O’Neill said. “It’s just heartbreaking to think that all of this will be destroyed.”

That feeling of powerlessness extends to McCarver, their mayor, who said the county welcomes industrial development, but only where it makes sense.

“They don’t have a snowball’s chance to get rezoned for something like that in that area,” he said. “They just come in as the thousand pound gorilla having their way without having to ask anybody or tell anybody or even work with those neighbors or that community out there.”

State and federal elected officials haven’t been much help, he added. And offers by the county to purchase the land from TVA have been fruitless. The only thing that might derail the project, McCarver added, is some adverse finding during the environmental review that will come if the plant moves forward. TVA’s been under fire for ignoring the Environmental Protection Agency’s critiques of its plans to replace coal-fired units at its Kingston plant with gas generation. The EPA said in a review of the draft environmental impact statement for the plant that TVA fell short in a number of ways, including not evaluating enough alternatives, lapses in cost calculations and other deficiencies. The agency asked TVA to prepare a supplemental analysis, which TVA didn’t perform.

“We appreciate the input from EPA as a cooperating agency in the EIS process, which was completed with the release of the record of decision,” Fiedler, the TVA spokesman said.

For McCarver, the past year of dealing with TVA’s proposed gas plant in Cheatham has been “a horrible experience” that’s made him painfully aware of the authority’s unique powers as a federal entity.

“I’ve always dealt politically with ‘not in my backyard.’ This is not a ‘not in my backyard’ situation,” the mayor said “Their area will never be the same. … You feel helpless.”

Congress needs to rein in the TVA, and forcing it to follow local zoning would be a good start, McCarver said.

“They put up a good front. They do a good tap dance. But at the end of the day, the feeling is … they’re going to do what they want to and how they want to do it and when they want to do it, and hopefully you won’t be in their way,” he said. “Nobody should be that powerful. Why is TVA that powerful?”

Himlerville, circa 1920, was the coal camp for the Himler Coal company, a cooperatively owned mining operation in Martin County. Many of Himlerville’s original buildings still stand today. (George Gunnoe Papers, Marshall University)

For over 100 years, Himler House stood on a hill overlooking Beauty, formerly Himlerville, in Martin County. Once the site of grand Christmas parties and banquets, the house was eventually abandoned and fell to ruins.

But few of the teens, vandals, and ghost hunters who frequented the abandoned mansion knew that it had been the center of a unique and radical experiment in Appalachian history: a cooperatively owned coal mine.

The Himler Coal Company, founded in 1918, was owned and operated by a group of predominantly Hungarian miners. The founder of the company was Martin Himler, a Jewish Hungarian immigrant who had arrived in New York in 1907 with 13 cents in his pocket.

Over the course of his life Himler mined coal, published a popular Hungarian-language newspaper, owned a series of businesses, and worked for the Office of Strategic Services arresting and interrogating Nazis in post-war Europe. He was posthumously awarded the Congressional Gold Medal in 2021.

Himler’s house in Beauty, Kentucky, was disassembled in 2022 because it was structurally unsafe. But the house is at the center of the Martin County Historical Society’s efforts to preserve Martin Himler’s legacy and revitalize the town of Beauty in the process.

Cathy Corbin is the director of the Himler Project, a group made up of a mix of local government, civic and educational institutions. The group formed in 2014 after the Himler family brought a manuscript of Martin’s unpublished autobiography to the Martin County Historical and Genealogical Society. Corbin, a former English teacher, agreed to edit the manuscript and prepare it for publication. It was through this process that Corbin came to understand Himler’s significance.

“We realized there was a lot more to Martin Himler than just being an immigrant who came to America and mined coal,” Corbin said in an interview with the Daily Yonder.

One of the primary goals of the Himler Project is to rebuild Himler House and restore it to how it looked in the 1920s, when it was the social center of a thriving coal camp. To that end, Corbin submitted an application to have Himler House designated as a National Historic Landmark. The application is currently being considered by the National Park Service.

“It would be a tremendous economic boost to Martin County to have Himler House designated as a United States National Landmark and possibly Himlerville itself as a historic district,” Corbin said.

Himler Coal

Beauty is one of many former company towns in Eastern Kentucky. But it is not an exaggeration to say its history is wholly unique in Appalachian history, according to Briane Turley, a professor of history at West Virginia University and co-founder of the Appalachian-Hungarian Heritage Project.

Appalachian coal camps were notoriously exploitative. Miners were forced to rent their homes from the company at exorbitant prices, and the company store — the only business in town — used their own currency known as “scrip.” Other expenses, from miners’ equipment and uniforms to their transportation, were taken directly from their wages, creating a system of indentured servitude.

Martin Himler experienced this system firsthand shortly after his arrival to the United States. Born to a Jewish family in a small town called Pászto, Himler immigrated alone at the age of 18. With no contacts or resources besides a distant cousin, he accepted “free transportation” from New York to Thacker, West Virginia, to work in coal mines there.

Upon his arrival, he was informed that he owed $32 (around $1,200 in today’s dollars) for the costs of transportation and equipment. Together with the cost of room and board, and because Himler was not a very good coal miner, he expected to go months without any wages. After only eight days working in the mine, he abandoned most of his belongings and “skipped,” running away on foot to find better circumstances elsewhere.

“It was a form of slavery, and Himler understood that,” Turley told the Daily Yonder. “And he literally had to slip away in the dead of night. Otherwise, they would arrest him, have him dragged back into the camp and force him to work until he paid everything off.”

Himler later worked in another mine in Pennsylvania, along with stints doing everything from shoe cobbling to show business. But this experience in West Virginia’s coal mines was the basis for the eventual founding and operating of Himler Coal as a cooperative in 1918.

During the coalfield labor disputes of the 1920s, Himler Coal sought a middle way between unfettered exploitative capitalism and bloody battles for unionization. According to Turley, Himler was able to create his cooperative because he was a well-known and trusted presence in the Hungarian mining community, which was one of the largest immigrant groups in Appalachia at the time. This was in part due to his weekly newspaper, Magyar Bányázslap (Hungarian Miners’ Journal) which was circulated among Hungarian coal miners nationwide.

“Because he had experienced the worst environments of coal mining in Appalachia before unionization, he knew how difficult the work was and how unfair labor practices were among the corporations that ran the mine,” Turley explained. “The mining companies were out for a lucrative, quick profit.”

In contrast, the miners themselves were shareholders of Himler Coal and sat on the company’s governing board, an arrangement unheard of in Appalachia or elsewhere. Himler himself never owned more than 3% of shares, according to Turley.

Himlerville

Himler Coal’s unique structure was also reflected in its company town, Himlerville. Unlike standard coal camps, Himlerville’s miners owned their own houses. Himler also did away with the oppressive “scrip” system at the company store.

“The company stores in most of Appalachia were terrorist organizations. You either purchased from them or you didn’t survive,” said Turley. “But there it was just one of many stores. You could go someplace else.”

Himlerville was known for its relative luxury. Each house had electricity and indoor plumbing, which was almost unheard of in Appalachian coal camps in those days.

In his autobiography, Himler writes that his personal objective in developing Himlerville was “to raise the standard of living of my people in every respect. My people were encouraged to live up to the standard in their modern and much-appreciated homes, and visiting Americans were astounded to see coal miners eating off white tablecloths and using white napkins.”

Himler also put great emphasis on education. The local school was soon rated the top school in the state of Kentucky. And because such a large percentage of miners and residents were Hungarian, the school was bilingual. Himler also considered Himlerville to be a great Americanization project and organized a night school to teach civics and prepare miners to become U.S. citizens.

According to the Himler House’s registration form for the National Register of Historic Houses, Himlerville was found to be the nation’s second most livable coal town by the U.S. Coal Commission.

“One of my miners told me that life on the camp would have been paradise were it not for the mine,” Himler wrote in his autobiography. “And he was right.”

Of course, Himlerville was not free from controversy. The Hungarian press was divided on Himler’s exploits – he was too conservative for the Left and far too radical for conservatives. Additionally, there was often tension between American-born Appalachians and Hungarian immigrants in Martin County. Linguistic and cultural differences played their part, as did nativism and negative stereotyping on both sides.

But like so many American utopian experiments, Himlerville would prove to be short-lived. After World War I, the coal industry fell into a depression. Supply continued to increase as mines got more efficient, but without the demand driven by the war, prices fell steeply. Like many coal companies in the 1920s, Himler Coal could not survive the downturn in the market and the company struggled financially. A devastating flood in 1928 marked the end of an era. Himler Coal went bankrupt and Himler and most of his miners left the town.

Preserving legacy

Today, nearly 30 original miners’ homes are still standing and in use in Beauty, along with the original Himler Coal company bank, powerhouse, railroad bridge, and Hungarian Cemetery.

Himler House was added to the National Register of Historic Places in 1991, but the Martin County Historical Society is aiming to upgrade that status to a National Historic Landmark — a much rarer designation that indicates national significance. The Historical Society also hopes that the rest of Himlerville could eventually be declared a National Historic District. The National Historic Landmark application for Himler House is currently under review.

“Each of these sites are very important to Martin County and to Eastern Kentucky,” said Corbin. “If the house does receive National Landmark designation, this is a tremendous asset for this area of Appalachia, which has been hit hard by lack of coal mining.”

The Himler Project’s goals go beyond rebuilding and restoring the house itself. Celebrating Himlerville’s history and legacy has become an international affair, with Hungarian musicians and scholars participating in cultural and scholarly exchanges in Appalachia.

The Historical Society hopes to develop a museum, and potentially add a restaurant and event space to make the house into a destination for school field trips and tourism alike. Himler’s later work interrogating Nazis for the Office of Strategic Services makes him a local entry point for Holocaust history, a topic that is mandatory in Kentucky public schools. Some other ideas to generate tourist traffic include adding Beauty to a National Scenic Byway like the Coal Heritage Trail, or connecting it physically to a network of local hiking trails.

But historical preservation is never a cheap proposition, especially in the case of a house that has to be rebuilt from its foundations. Charlotte Anderson, president of the Martin County Historical and Genealogical Society, said funding is the biggest obstacle.

The project is estimated to cost nearly $1.9 million dollars, and in one of the poorest counties in Kentucky, that kind of funding is hard to come by. The Historical Society puts on a number of annual fundraisers, selling Polish sausages, sweets, and soup beans at various events.

“One of our board members is somewhat famous in our area for his soup beans, so that’s a big fundraiser for us. Now, when I say big, I mean a thousand dollars or so. That’s about as much as we get at any one time,” Anderson said. “It’s been a slow process, trying to come up with things in order to make the money to get at it.”

Jim Hamos is Martin Himler’s great-great-nephew, and one of several family members involved in the Himler Project. He worries that Beauty is too inaccessible to attract much out-of-state tourism.

“I don’t know how many people will make that sort of trek. It’s one thing when you’re off an interstate highway, but it’s another thing when you’re so remote” Hamos said in an interview with the Daily Yonder. “I find it really interesting. But how it becomes someplace where lots of people will go and pay money, I don’t know. But I’m hopeful.”

The National Parks Service lists tax incentives, access to grants, and assistance with preservation as some of the key benefits of National Historic Landmark status. Corbin is hopeful that such a designation will give the Himler Project the support they need to rebuild Himler House and manage the site as a tourist destination.

In the meantime, Hamos, who was himself a refugee during the Hungarian Revolution, takes inspiration from the lessons that can be learned from Himlerville.

“I’m thrilled that the people of Martin County want to do this. They’re trying to claim a piece of their history,” Hamos said. “I do believe this country is a family of immigrants. So I think that’s what we should be continuing to accept in this country.”

This story is republished from The Daily Yonder under a Creative Commons license.

The coal preparation plant was photographed from the air on Nov. 1, 2023, the day after its collapse. Louisville Emergency Management took the photo via a drone. (Kentucky Education and Labor Cabinet records)

On a cool evening in late October, David Peyton heard a pop then a warning scream to get out. Within seconds two men were trapped under 11 stories of steel and concrete.

Peyton ran to where Alvin Nees and Billy Joe “Bo” Daniels were trapped in the collapsed Pontiki/Excel coal preparation plant in Martin County. He talked with the men but lost contact with Nees after a half hour, maybe a little longer.

Peyton, a subcontractor on the project to demolish the plant, told state investigators that he had refused to do the demolition himself because of his concerns about the plant’s decades-old condition. That’s according to a report by state workplace safety officers and released to the Lantern through an open records request.?

Emergency responders from across Kentucky worked for several days in a dangerous but ultimately futile attempt to rescue Nees and Daniels. Both men died from their injuries, a loss that Kentucky Gov. Andy Beshear in early November called a “heartbreaking situation.”?

A months-long investigation by the Kentucky Education and Labor Cabinet found that it was a situation that might have been averted had federally-required safety precautions been followed.?

The investigation found multiple safety violations that preceded the collapse, including:?

• Not having an engineering survey and plan before demolition.
• Not bracing corroded load-bearing steel columns or ensuring the columns were not “overstressed” before using welding torches to cut into them.
• Not having someone certified in first aid on site.
• Not informing Nees and Daniels of the hazardous conditions involved with the demolition.

The cabinet on April 30 fined Skeens Enterprises, the primary contractor charged with demolishing and scrapping the plant, $31,500 for five violations that preceded the deaths of Nees and Daniels.

A voicemail and text message to Peyton from the Lantern asking about the state report were not returned. Attempts to reach Stanley Skeens, the CEO of Skeens Enterprises, or a representative of Skeens Enterprises were not successful.??

What state and federal officials found

Lexington Coal Co., a prominent mining operator with a history of environmental compliance issues, holds the state permit to reclaim the site of the coal preparation plant, which had been operated by Alliance Resource Partners until it was closed and sold in 2014.?

Lexington Coal Co. is led by Jeremy Hoops, the son of Jeff Hoops whose bankrupt coal company, Blackjewel, in 2019 withheld final paychecks from employees who then blocked a coal train for two months. Jeff Hoops was Blackjewel’s CEO and president.

Lexington Coal Co. contracted with Pike County-based Skeens Enterprises to demolish and salvage the plant. Skeens Enterprises then subcontracted with Tennessee-based Bordeau Metals, LLC to help with the demolition including with the loading and transportation of metal. Bordeau Metals, led by Brad Bordeau, then subcontracted with Peyton’s McLean County-based company Ace Welding and Fabrication to conduct the demolition of the plant.?

State workplace safety officials noted in their report that Lexington Coal Company required in its contract with Skeens Enterprises that the contractor get permission before subcontracting the demolition work. Lexington Coal Company was unaware that subcontractors had been brought on or that demolition work had begun in late October, according to the state report. State officials investigated Lexington Coal Co. separately after the collapse but didn’t issue the company any citations.?

Peyton, head of the welding company, had his doubts about the demolition project going back to September 2023.

Peyton told Skeens in September he wasn’t comfortable demolishing the plant due to its condition. The steel of the idled preparation plant had been widely corroded. State inspectors later attributed the corrosion to decades of exposure to chemicals used and coal ash created by crushing and removing excess rock from the mined coal.?

Skeens persisted in keeping Peyton on the project; the two agreed that month that Peyton would move forward with his work if Skeens “could get the building on the ground.”?

But in late October, Peyton told Brad Bordeau, the other subcontractor, he wasn’t going to go forward with his part in the demolition project. Bordeau then decided to bring in a Louisville company specializing in demolitions to look at the structure. Bordeau informed Skeens and Peyton he was bringing in the Louisville company.

Skeens, the primary contractor, had another idea. He reached out to Bo Daniels and Alvin Nees, unbeknownst to Bordeau. Daniels had worked with Skeens before but not on a demolition project, according to the state report, and Skeens had demolished around a dozen coal preparation plants before tackling the project.?

Skeens asked Peyton if Nees and Daniels could use Peyton’s welding torches and equipment, which Peyton provided them, along with protective gear. Peyton also taught Nees and Daniels how to use the torches. On the day of the demolition, Oct. 31, 2023, Nees and Daniels began cutting two-foot notches out of the steel columns at the base of the plant.?

It was Skeens’ screaming that Peyton heard when the plant began to collapse, according to the state report. Skeens felt sick following the collapse and was taken to the hospital.

State officers didn’t find any evidence of an engineer conducting a survey before the demolition was done as required by federal regulations. Nor was there someone certified with first aid at the plant site, also required by federal regulations, though Skeens had a first aid certification that had expired in 2008. Skeens told state officers he didn’t advise Daniels on how to drop the building other than to have it fall to the east. Daniels and Nees were supposed to be paid $5,000 for their work.?

That same day, Bordeau had brought in Jon Davies, the president of Louisville-based Complete Demolition Services, to price the demolition of the plant. State officers write Skeens said Davies told him at the plant site the demolition process Nees and Daniels were undertaking “looked good.” But when state officers interviewed Davies, he told them the demolition process was “not how he would do it” and that he requested to get away from the building.?

A federal engineering report stated that while using welding torches isn’t uncommon with a demolition, the cuts made into load-bearing steel columns on the ground floor of the plant posed a “serious risk to the structural integrity of the building.” One of the columns that had been cut into by the torches had a calculated load of 56,000 pounds, or the equivalent of more than a dozen large SUVs.?

That column was overstressed and “in a precarious state even before the collapse transpired,” Alan Lu with the federal Office of Engineering Services wrote. “Field investigations further reveal that some columns in the eastern section of the building were subjected to torch cuts resulting in the complete loss of their load bearing capacity.”?

“The inadequate demolition procedures ultimately culminated in the premature and catastrophic collapse of the building during demolition operations,” Lu wrote.?

Rescuers from around the state worked for more than two days, using dogs, listening devices and cameras to search the unstable debris. The county sheriff told the Mountain Citizen of Inez that responders crawled under tons of steel and concrete that was “snapping and popping” and at one point attempted to free Daniels by surgically amputating his leg.?

The two men were remembered last year by their families and loved ones as “a great father”? and “a great person.”

Some of the coal mined in the Powder River Basin in Wyoming comes from surface mines like this one. (Photo courtesy of Wyoming BLM via Flickr | CC-BY-SA 2.0)

The U.S. Bureau of Land Management on Thursday released plans to end future leasing of its managed coal resources in the Powder River Basin in eastern Montana and northeastern Wyoming in a move that has angered Montana’s Republican political leaders but is being cheered by environmental groups who fought for changes to leasing plans over the past decade.

The BLM issued final supplemental environmental impact statements and amendments to its land use plans for the Miles City Field Office in Montana and the Buffalo Field Office in Wyoming, both of which recommend an end to future federal coal leasing in the regions despite the bureau considering alternatives that would allow for some future leasing.

The official plans will be published in the Federal Register on Friday, which opens up a 30-day window for people to file protests. After the window closes and the protests are resolved by the director of the BLM, which does not have a specific timeframe but in recent years has taken about nine months, the final Record of Decision and Resource Management Plan will be published and take effect.

The decisions by the BLM are key because the Powder River Basin in the two states accounts for 85% of federal coal production and about 40% of U.S. annual coal production, but the bureau says coal production in the Miles City Field Office region has declined over the past decade as more utilities move toward other energy sources for power.

The environmental groups that pushed for the end to new coal leasing called the decision a “sea change” in federal efforts to move toward cleaner energy sources.

“This decision opens new doors to a future where our public lands are not sacrificed for fossil fuel profits and, instead, can prove a bulwark of ecological and community resilience in the face of global warming,” Erik Schlenker-Goodrich, the executive director of the Western Environmental Law Center, said in a statement.

The plan for Montana would close about 1.2 million acres to new coal leasing but would allow current coal production at the Spring Creek Mine, owned by the Navajo Transitional Energy Company, to continue through 2035. It would allow production at the Rosebud Mine, owned by Westmoreland, through 2060 under their current leases, the BLM said in the notice in the Federal Register. The Absaloka Mine lost its final customer in April, the Billings Gazette reported.

Existing mines in Wyoming would be able to produce coal until 2041. The current period for the new plans runs through 2038.

The new environmental impact statement and land use plan amendments come eight years after the Western Organization of Resource Councils first challenged the 2015 Record of Decision for future leasing operations, alleging it violated the National Environmental Policy Act. In 2018, a judge found the BLM had violated NEPA, which led to another coal screening for the plans and a new NEPA analysis released in 2019 under the Trump administration.

But the Miles City plan was challenged again by the same group in 2020. In August 2022, a U.S. District Court of Montana judge also found the BLM had violated NEPA by failing to address public health and environmental effects from the mining. He ordered another new coal screening and NEPA analysis that this time considered no-leasing and limited-leasing alternatives as well as impacts to public health from burning fossil fuels in the area.

“Coal has powered our nation for many decades, but technology, economics and markets are changing radically,” Western Organization of Resource Councils Board Chair Paula Antoine said Thursday in response to the decisions. “BLM’s announcement recognizes that coal’s era is ending, and it’s time to focus on supporting our communities through the transition away from coal, investing in workers, and moving to heal our lands, water and climate as we enter a bright clean energy future.”

The BLM said in its announcement that the Spring Creek and Rosebud mines produced a combined 18.5 million short tons (37 million pounds) of coal in 2022, which was down from 28 million short tons (56 million pounds) in 2007, “as older coal-fired electric power plants have closed and generation has shifted to natural gas and renewable energy sources.”

“Both U.S. total coal production and Powder River Basin coal production peaked in 2008 and have since declined steeply, according to the Energy Information Administration,” BLM spokesperson Mark Jacobsen said in the bureau’s announcement.

Montana Republicans unhappy with another Biden energy move; Tester reviewing

Montana’s Republican governor and three GOP members of the state’s federal delegation, who have for years been saying the Biden administration’s efforts to move the U.S toward more renewable and clean energy and away from using fossil fuels for power, sent out a joint news release decrying the BLM’s decision and blaming the “far left” for the proposed plans.

Gov. Greg Gianforte in August wrote to BLM Director Tracy Stone-Manning that accepting few or no future leases would harm the state’s coal trust, Colstrip and the economy.

The group of Republicans expressed similar sentiments recently regarding the EPA’s singling-out the coal-fired plants at Colstrip with new emissions standards and believe that efforts to move away from coal and oil and gas to power the state will hurt the state’s power grid and cost workers jobs.

“Every action taken by the Biden administration is driving up the cost of affordable energy and threatening the reliability of our electrical grid. Affordable power generated by coal keeps the lights on in Montana and fuels manufacturing across the country and world,” Gianforte said in a statement. “Today’s announcement is nothing more than a gift to China and our adversaries and a slap in the face to hardworking Montanans.”

U.S. Rep. Matt Rosendale, who represents eastern Montana, blamed the decision on appeasing “climate extremists” and said the plans would jeopardize Montanans’ way of life.

“BLM either does not understand or does not care that their unreliable green new deal energy sources are not feasible in places like Montana and pose real threats to our economy and national security,” Rosendale said.

A spokesperson for Sen. Jon Tester, D-Montana, said Tester was reviewing the proposal and calling on Montanans to submit comments during the 30-day protest window.

“Senator Tester will always stand up to President Biden’s energy policies when they don’t make sense for Montana,” spokesperson Eli Cousin said in a statement.

The new proposal comes on the heels of the BLM publishing a final rule that will allow two new types of leases on federal public lands: restoration and mitigation leases, which put those uses on the same footing as extraction. The rules have already been criticized by the same group of Montana Republican leaders who say the changes will also harm Montana’s energy industry.

The different alternatives BLM considered

But the parameters of the court-ordered review meant that three out of four of the proposed alternatives the BLM considered for the Miles City Field Office would have closed off significant acreage to new leasing.

The first alternative was to take no action and keep the 2019 plans in place, which would have made 1.2 million acres available for possible leasing.

But the three other options applied screens, multiple-use considerations, and climate change scenarios that greatly reduced the available acreage. Alternative B would have left about 69,000 acres available for possible leasing, while Alternative C would have made about 810 acres available.

But the alternative the BLM decided to pick makes no coal available for leasing. The Miles City planning area encompasses 2.7 million acres of BLM land and 11.7 million acres of federal coal mineral estate over 17 counties in eastern Montana.

The environmental impact analysis says the alternative the BLM chose would mean no new impacts to air quality caused by new or pending coal leases. The report forecasts Spring Creek and Rosebud would continue to support about 620 jobs through 2035 resulting in nearly $50 million in average annual income.

Utilizing Alternative D would also mean the Spring Creek Mine would run out of coal reserves about 53 years earlier than under Alternatives A and B, which would eventually lead to a loss of economic revenue and programs funded by federal coal production, the report says.

But Montana environmental groups that have fought for the changes say the new plans are a step forward in moving away from coal and cutting down on pollution.

Mark Fix, a Miles City rancher who is a member of the Northern Plains Resource Council, said the new plans reflect reality in 2024.

“Coal companies in this region already have decades of coal locked up in leasing, and it’s hard to imagine they’ll find buyers that far into the future given the competition from more affordable energy sources,” Fix said. “This plan protects taxpayers from wasting publicly owned resources on lowball leases to subsidize an industry in decline. It’s time we take a clear-eyed look at the future and start investing in a transition away from coal.”

The story is republished from the Daily Montanan, a sister publication of the Kentucky Lantern and part of the nonprofit States Newsroom network.

Downtown Hazard sits on the North Fork of the Kentucky River. The Perry County seat redoubled its efforts to fix up Main Street when prospective non-coal employers came to town and saw there were no good gathering places for them to take employees or have business meetings. (Photo by Austin Anthony)

CORBIN — Eastern Kentucky is about to get an avalanche of federal and state money to help it transition from its largely disappeared coal economy, but some of its towns are already lifting themselves up and setting examples for the region.

That was the upshot of the 36th annual East Kentucky Leadership Conference in Corbin, where Main Street is pretty much full again and New Orleans-style balconies show that young professionals are migrating there.

“A lot of younger people have wanted to move closer to downtown,” Corbin City Commissioner Allison Moore said during one panel discussion.

Conference attendees also heard about the revitalized downtowns in Hazard and Pineville, and about the hundreds of millions of dollars in federal grants for which governments and nonprofits are already applying.

“There are now more resources than we have seen in our entire careers,” said Peter Hille, chairman of the East Kentucky Leadership Foundation and president of the Mountain Association, a nonprofit community-development lending institution based in Berea. He’s been doing community-development work in the region for more than 30 years.

In addition to federal money, state government now has a program to help provide matching funds that local governments often need to get grants, noted Casey Ellis of the Kentucky Council of Area Development Districts. Originally targeted to coal counties, its outlay of $1.5 million helped generate $12.8 million in grants last year, Ellis said.

After the conference, held April 25 and 26, Hille gave some examples of the funding opportunities for governments, nonprofits and others:

• U.S. Energy Department funds to reduce energy consumption and bring renewable energy to census tracts where coal mines have closed since 1999, as well as adjacent tracts.
• New programs through the Appalachian Regional Commission, most recently one for multi-state collaborative projects funded by the bipartisan infrastructure bill of 2021.
• The U.S. Department of Agriculture’s rural energy program, which covers half of the installed cost for efficiency and renewable energy for rural businesses.
• The U.S. Environmental Protection Agency’s? Greenhouse Gas Reduction Fund, to bring solar energy to homes of low-income people, and money to build the capacity and workforce needed to install the equipment.
• Several other agencies have money for workforce development and infrastructure, including broadband.

Hille also talked about the federal money at the conference’s closing lunch, but also pointed out the efforts by local leaders, often helped with government grants but mainly spurred by local initiative.

“We’ve been seeing our communities come back to life,” he said, “because they are recreating themselves as places where people can live and choose to live.”

That’s essential as communities look for employers to replace coal jobs, said Bailey Richards, downtown coordinator for the City of Hazard. She said the Perry County seat redoubled its efforts to fix up Main Street when prospective non-coal employers came to town and saw there were no good gathering places for them to take employees or have business meetings.

“We realized you have to build a community,” Richards said in one panel discussion. In the last five years, downtown redevelopment has brought 70 new businesses, 62 of which are still open, accounting for more than 250 jobs. Richards noted proudly that Hazard’s population rose 18 percent from 2010 to 2020, while Pikeville, which has the region’s best-known revitalized downtown, grew 12 percent.

In the Bell County seat of Pineville, Mayor Scott Madon looked out the window of his second-floor insurance office a few years ago and saw a public square with 20 percent of its buildings occupied. Now it’s 100 percent full, after a redevelopment plan that will hit its second big phase this summer, Madon said during a panel discussion.

One key was a five-year moratorium on property-tax assessment increases, which required the cooperation of the county government. Madon said the first property to emerge from the moratorium will pay $10,000 in property taxes this year, after generating only $400 a year before it was redeveloped. To help businesses succeed, Southeast Community College helps them work up business plans, and checks with them each quarter to see how they’re doing.

Hille said successes like Pineville’s and Corbin’s usually have “spark plugs” like Andy Salmons, who is both Corbin’s Main street manager and owner of a former drug store converted into a local-food restaurant and bar with apartments above. He did that 12 years ago, when half of downtown buildings were empty.

Skeptics, and there were many, “said nobody’s going to come to a farm-to-table, craft-beer bar in Corbin,” Salmons said. He ran out of money just before it was time to open, and people who wanted to see him succeed rounded up the last thing he needed for the Wrigley Taproom and Eatery: chairs.?

More openings followed, the town went fully “wet,” not just for restaurants, and other towns noticed and followed suit. “Corbin was a game changer in this region,” said Jacob Roan, the city’s parks director.

Some relief coming for housing shortage

Much of the conference focused on the region’s chronic housing shortage, which has been worsened by floods, inflation and high interest rates, which have also raised rents and home prices. But wait. “Help is on the way,” said Pam Johnson of Fahe, formerly the Federation of Appalachian Housing Enterprises.

Using flood-relief money and other funds, and donated land, the state has started seven housing developments in the counties hit hardest by the 2022 flooding. It recently started taking applications for $298 million in federal disaster-recovery money intended for housing and infrastructure to support it.

The application deadline is June 1, said Matt Stephens, general counsel of the state Department for Local Government. The five counties hurt most by the floods – Breathitt, Letcher, Knott, Perry and Pike – will get 80% of the money. The other 20% is allocated to 15 other counties flooded in 2022.

“We’re looking at a summer and fall of housing starts that we have not seen,” Johnson said. “That’s going to give a boost to the communities.”

Eastern Kentucky has a housing shortage partly because it has shortages of three things related to housing: developable land, infrastructure and contractor, said Wendy Smith, a deputy executive director of Kentucky Housing Corp., a state agency.

Smith said rents have climbed so much that landlords who once took federal Section 8 housing vouchers no longer do so, to avoid inspections required by the program, and more than half the people who got vouchers from KHC turn them back in because they can’t find housing in the 210 days the voucher can be used.

She said there is little new “middle housing” such as duplexes and triplexes, on which developers make less money. And while there is money for apartment buildings and rent subsidies, many people in Eastern Kentucky don’t like apartment living.

“It’s because we’re connected to the land,” Corbin Mayor Suzie Rasmus said, unlike “the rest of the nation, that is so transitory.”

This story is the first in the latest series of stories about Appalachian Kentucky from the Institute for Rural Journalism, based at the University of Kentucky. If you have story ideas, contact Director Emeritus Al Cross at [email protected] or Jenni Glendenning, the institute’s David Hawpe Fellow in Appalachian Reporting, at [email protected].?

AES Indiana’s Petersburg Generating Station in Petersburg, Indiana, has been burning coal since the 1960s but will shutter all of its coal-firing units over the next few years. The U.S. Environmental Protection Agency on Thursday released a sweeping set of rules aimed at cutting air, water and land pollution from fossil fuel-fired power plants. (Robert Zullo/States Newsroom)

The U.S. Environmental Protection Agency on Thursday released a sweeping set of rules aimed at cutting air, water and land pollution from fossil fuel-fired power plants.

Environmental and clean energy groups celebrated the announcement as long overdue, particularly for coal-burning power plants, which have saddled hundreds of communities across the country with dirty air and hundreds of millions of tons of toxic coal ash waste. The ash has leached a host of toxins — including arsenic, mercury, lead, cadmium, radium and other pollutants — into ground and surface water.

“Today is the culmination of years of advocacy for common-sense safeguards that will have a direct impact on communities long forced to suffer in the shadow of the dirtiest power plants in the country,” said Ben Jealous, executive director of the Sierra Club, one of the nation’s oldest and largest environmental organizations. “It is also a major step forward in our movement’s fight to decarbonize the electric sector and help avoid the worst impacts of climate change.”

But some electric industry and pro-coal organizations blasted the rules as a threat to jobs and electric reliability at a time when power demands are surging. They also criticized the rule’s reliance on largely unproven carbon capture technologies.

America’s Power, a trade organization for the nation’s fleet of about 400 coal power plants across 42 states, called the number of new rules “unprecedented,” singling out the new emissions standards that will force existing coal plants to cut their carbon emissions by 90% by the 2032 if they intend to keep running past 2039.? Michelle Bloodworth, the group’s president and CEO, called the rule “an extreme and unlawful overreach that endangers America’s supply of dependable and affordable electricity.”

‘This forces that’

Many experts expect the regulations to be litigated, particularly the carbon rule, since the last time the EPA tried to restrict carbon emissions from power plants, a group of states led by West Virginia mounted a successful legal challenge that went to the U.S. Supreme Court.

But Julie McNamara, deputy policy director with the Union of Concerned Scientists, said the agency took great pains to conform the rule to the legal constraints outlined by the court.

“This rule is specifically responsive to that Supreme Court decision,” she said. “Which doesn’t mean that it won’t go to the courts but this is so carefully hewn to that decision that it should be robust.”

The four rules EPA released Thursday mainly target coal-fired power plants.

“By developing these standards in a clear, transparent, inclusive manner, EPA is cutting pollution while ensuring that power companies can make smart investments and continue to deliver reliable electricity for all Americans,” EPA Administrator Michael S. Regan said.

In some ways, they attach a framework to a sea change in electric generation that is already well under way, McNamara said.

Coal accounted for just 16% of U.S. electric generation in 2023, according to the U.S. Energy Information Administration. In 1990, by comparison, it comprised more than 54% of power generation. However, some states are more reliant on coal power than others.

In 2021, the most coal-dependent states were West Virginia, Missouri, Wyoming and Kentucky, per a 2022 report by? the EIA.

“This rulemaking adds structure to that transition,” McNamara said. “For those who have chosen not to assess the future use of their coal plants, this forces that.”

Heather O’Neill, president and CEO of the clean energy trade group Advanced Energy United, said the new regulations are a chance for utilities to embrace cheaper, cleaner and more reliable options for the electric grid.

“Instead of looking to build new gas plants or prolong the life of old coal plants, utilities should be taking advantage of the cheaper, cleaner, and more trusty tools in the toolbox,” she said.

The carbon rule

In 2009, the EPA concluded that greenhouse gas emissions “endanger our nation’s public health and welfare,” the agency wrote, adding that since that time, “the evidence of the harms posed by GHG emissions has only grown and Americans experience the destructive and worsening effects of climate change every day.”

The new carbon emissions regulation will apply to existing coal plants and new natural gas plants. Coal plants that plan to operate beyond 2039 will have to capture 90% of their carbon emissions by 2032. New gas plants are split into three categories based on their capacity factor, a measure of how much electricity is generated over a period of time relative to the maximum amount it could have produced. The plants that run the most (more than 40% capacity factor) will have to capture 90% of their carbon emissions by 2032. Existing gas plants will be regulated under a forthcoming rule that “more comprehensively addresses GHG emissions from this portion of the fleet,” the agency said.

Michelle Solomon, a senior policy analyst for Energy Innovation, an energy and climate policy think tank, predicts that most coal plants will close rather than install the costly technology to capture carbon emissions.

“Climate goals aside, the public health impacts of the rules in securing the retirement of coal fired power plants is so important,” she said. Coal power in the U.S. has been increasingly pressured by cheaper gas and renewable generation and mounting environmental restrictions, but some grid operators have still been caught flat-footed by the pace of coal plant closures.

“I think the role of this rule, to provide that certainty about where we’re going, is so crucial to get the entities that have control over the rate of the transition to start to take action here,” she said. But the National Rural Electric Cooperative Association’s CEO, Jim Matheson, called the rules “unlawful, unrealistic and unachievable” noting that it relies on technology “that is not ready for prime time.”

And Todd Snitchler, president and CEO of the Electric Power Supply Association, a trade group for competitive power suppliers, called the rule “a painful example of aspirational policy outpacing physical and operational realities” because of its reliance on unproven carbon capture and hydrogen blending technologies to cut emissions.

A beefed up Mercury and Air Toxic Standards rule

The EPA called the revision to the Mercury and Air Toxic Standards “the most significant update since MATS was first issued in February 2012.” It predicted the rule would cut emissions of mercury and other air pollutants like nickel, arsenic, lead, soot, sulfur dioxide, nitrogen oxide and others. It cuts the mercury limit by 70% for power plants fired by lignite coal, which is the lowest grade of coal and one of the dirtiest to burn for power generation.

For all coal plants, the emissions limit for toxic metals is reduced by 67%. The EPA says the rule will result in major cuts in releases of mercury and other hazardous metals, fine particulate matter, nitrogen oxides and carbon dioxide.? The agency projects “$300 million in health benefits,” including reducing risks of heart attacks, cancer and developmental delays in children and $130 million in climate benefits.

Stronger wastewater discharge limits for power plants

Coal fired power plants use huge volumes of water, and when the wastewater is returned to lakes, rivers and streams it can be laden with mercury, arsenic and other metals as well as bromide, chloride and other pollution and contaminate drinking water and harm aquatic life.

The new rule is projected to cut about 670 million pounds of pollutants discharged in wastewater from coal plants per year. Plants that will cease coal combustion over the next decade can abide by less stringent rules.

“Power plants for far too long have been able to get away with treating our waterways like an open sewer,” said Thomas Cmar, a senior attorney at Earthjustice, a nonprofit environmental law organization, during a briefing on the new rules earlier this week.

Closing a coal ash loophole?

Coal ash, what’s left after coal has been burned for power generation, is one the nation’s largest waste streams. The 2015 EPA Coal Combustion Residuals rule were the first federal regulations for coal ash. But that rule left about half of the ash sitting at power plant sites and other locations — much of it in unlined disposal pits — unregulated because it did not apply to so-called “legacy impoundments” that were not being used to accept new ash.

“We’re going to see a long-awaited crackdown on coal ash pollution from America’s coal plants, and it’ll be a huge win for America’s health and water resources,” said Lisa Evans, a senior attorney with Earthjustice. “They are all likely leaking toxic chemicals like arsenic into groundwater and most contain levels of radioactivity that can be dangerous to human health.”

Groundwater monitoring data shows that the vast majority of ash ponds at coal plants are contaminating groundwater, said Abel Russ, a senior attorney with the Environmental Integrity Project. But under the old rule, Russ said, facilities could dodge cleanup requirements by blaming contamination on older ash dumps not covered by the regulation.

“This is a huge loophole,” Russ said. “You can’t restore groundwater quality if you’re only addressing half of the coal ash sources on site.”

However, several attorneys on the Earthjustice briefing said the new rules, which will require monitoring at clean up and hundreds of more ash sites, will only be as good as the enforcement.

“It’s meaningful only if these utilities obey the law. Unfortunately to date, many of them have not,” said Frank Holleman, a senior attorney with the Southern Environmental Law Center.

The new silica dust limit, 50 micrograms per cubic meter of air, is half of what is currently allowed, and has long been called for by the National Institute for Occupational Safety and Health, along with others. (Getty Images)

It was a celebratory moment years in the making when acting Labor Secretary Julie Su, flanked by miners and advocates, announced the rollout of a new rule limiting silica dust exposure for miners in Uniontown, Pennsylvania, last week.

For years, advocates for mine safety had urged the federal government to adopt strict rules around the substance that has led to an increase in severe black lung cases among young miners. Finally, one was announced.

“For too long, we accepted this as just the way things are for people who work in mines,” Su said in Uniontown Tuesday. “They’ve had to work without the same protections from silica dust that people in other industries have, even though we’ve known about the harms of silica dust.”

McGarvey, coal miner advocates renew push to ease burden of proof for black lung benefits

Mine safety advocates largely agree the rule is a positive change. But some are concerned that it still leaves too much power in the hands of mining companies instead of regulators, and lacks clarity when it comes to how it should be enforced.

“Overall, the rule is a step in the right direction, which is what we’ve been asking for for many years now,” said Erin Bates, a spokesperson for the United Mine Workers of America. “But coal operators are going to have to be held accountable at the end of the day.”

In recent years, severe cases of black lung disease have become more common. One of the major causes is silica dust. Contact with the substance is becoming more prevalent as the Appalachian region has been so aggressively mined that miners are digging into more narrow coal seams. Silica dust is produced when miners break through the rock surrounding those seams.

The new rule,which was published April 18, creates a limit for levels of silica dust exposure and requires mining companies to actively monitor it. The new limit, 50 micrograms per cubic meter of air, is half of what is currently allowed, and has long been called for by the National Institute for Occupational Safety and Health, along with others.

But the rule largely relies on mining companies themselves to measure the quality of air in their mines and to alert regulators when silica dust levels exceed the new limit.

This is in part, Bates said, because the Mine Safety and Health Administration simply doesn’t have the funding to regularly sample air in mines across the country. Still, she likened the rule to asking drivers to enforce the speed limit.

“How often is a driver going to call the police and say, ‘hey, you know, I’m really sorry,’” Bates said. “‘I was going 75 in a 55. Go ahead and write me a ticket.’”

“But the fact that there’s something in place that we can fight with and we can use is huge,” Bates said. “Every time we find a violation, we can point back to this rule … Before, when we found that there were high levels of silica dust in our mines, there was nothing we could do.”

Rebecca Shelton is the director of policy of the Appalachian Citizens Law Center in Whitesburg, a group that has advocated for silica dust regulation.

“I got into this work through being from Kentucky, really,” Shelton said. “Everyone knows someone who has black lung, it seems. I think that’s something that is a fairly foreign or detached concept for most people in this country: that somebody in your family has a disease related to their occupation and occupational hazards.”

Like Bates, Shelton believes the rule is a positive step, but is concerned about enforcement.

And Shelton worries that the Mine Safety and Health Administration may not be up to the task of enforcement, even when companies do report silica dust levels above the established limit.

“Something we’ve been pushing for for a long time is for MSHA just to have the funding they need to hire more inspectors,” Shelton said. “There has been a decline in the number of inspectors, especially for the coal mining industry over the last decade … It makes it harder to do more rigorous enforcement.”

A November 2023 report published by the US Office of Inspector General found that MSHA was struggling to keep up with its work enforcing regulations. When announcing the final rule, Su noted that the agency was hiring an additional 270 inspectors to help enforce it.

The rule will take effect in one year for coal mines, and in two years for all other types of mines.

“I think we are going to have to figure out how we are going to watchdog the implementation of this rule, and find our path forward there,” Shelton said. She added that the lack of specified thresholds for penalties for mine operators found in violation of the rule would add to the difficulties of enforcement.

Willie Dodson, a field coordinator with Appalachian Voices, a group that works closely with Shelton’s, said in a statement that one major source of concern was that the rule does not require mine companies to close their mines when silica dust levels are too high.

“Without strong enforcement mechanisms, and without any prohibition against miners being forced to work in excessive dust, I’m not sure that this will actually reduce levels of black lung,” Dodson said in a statement. “This rule gives MSHA too much discretion where there should be automatic enforcement actions.”

The rule gives MSHA? the authority to take a number of actions if silica dust limits exceed the new limit, from financial penalties to shutting down unsafe mines.

A spokesperson for the Department of Labor told the Capital-Star that it is willing to take all available actions if a mining company does not take action “in a reasonable period of time” to lower silica dust levels.

Sam Petsonk, a West Virginia lawyer and advocate for mine safety, was optimistic about the prospects of enforcement. He believes the rule’s language is stricter than other similar regulations that had come before it.

“This rule is a stronger dust protection rule than MSHA ever promulgated before when it comes to the stringency of the limit and the tolerance for violations,” he said.

Petsonk believes the language of the rule will allow MSHA to take action against coal companies much more quickly than previous rules limiting other harmful airborne substances in mines. As an example, he pointed to a 2014 rule regulating coal dust levels that generally required the collection of multiple dangerous air samples before regulators could act. This rule, he said, would only require one.

Petsonk also praised MSHA for adding language to the rule requiring mining companies to regularly come up with plans for how they will limit silica dust exposure and submit those to regulators.

“This rule acknowledges that the operator has to engineer a better way of avoiding extreme silica exposure,” Petsonk said. “That’s a real innovation. That’s something that’s new in this rule.”

But Petsonk understands that enforcement of the rule will come down to who is in charge of the agency. For the moment, he believes the current administration is committed to enforcing the rule to the fullest extent possible.

“I always believe in the adage, trust, but verify,” Petsonk said. And he believes that the current rule, along with what he saw as the agency’s willingness to adapt it in light of criticism received during its public comment period, is at least the start of verification.

Bates, the UMWA spokesperson, is less certain than Petsonk. She says the union is concerned that the rule could allow mining to continue even in mines where excessive levels of silica dust are measured. While it requires mining companies to take corrective actions when silica levels are high, one such action it notes is requiring miners to wear appropriate respirators. The union would prefer work in a mine where levels were too high be stopped altogether until it can continue safely.

“We strongly advocated for the agency to not require respirators when the miners were exposed to levels of silica that are above the exposure limit,” Bates said. “Honestly, we believe that if there is overexposure the work should stop completely.”

Bates pointed to one other aspect of the rule she found troubling. In the final published rule, MSHA included studies on the potential efficacy of the new, 50 micrograms per cubic meter of air silica dust limit. The studies also looked at how effective an even lower limit of 25 micrograms per cubic meter would be.

Generally speaking, those studies found that the lower limit would expose only half as many miners to what it deemed excessive risk for disease. But that’s not where the agency landed.

“It’s absolutely not a surprise,” Bates said. “At the end of the day, the most important thing is the miners’ lives. It is a shame that 30- and 40-year-olds are contracting this disease.”

To Bates and others, the knowledge that stricter regulations would result in fewer miner deaths is only proof that there’s more work to be done.

This article is republished from the Pennsylvania Capital-Star, a sister publication of the Kentucky Lantern and part of the nonprofit States Newsroom network of free news services.

Haley Autumn Dawn Ann Crank poses for a photo with her hometown of Hazard behind her on March 25, 2024. (Photo by Austin Anthony for The Hechinger Report)

HAZARD — Haley Autumn Dawn Ann Crank thinks she might like to become a teacher. There’s a shortage of teachers in this corner of Kentucky, and Crank, who has eight siblings, gets kids.

“I just fit in with them,” Crank said during a shift one February day at the Big Blue Smokehouse, where she works as a waitress.?

For now, the recent high school graduate is taking some education courses at the local community college. But to pursue a teaching degree at a public, comprehensive university, she’ll need to commute four hours roundtrip or leave the town she grew up in and loves.

Neither of those options is feasible — or even conceivable — for many residents of Hazard, a close-knit community of just over 5,000 tucked into the hills of Southeast Kentucky. Like many rural Americans, the people here are place-bound, their educational choices constrained by geography as much as by cost. With family and jobs tying them to the region, and no local four-year option, many settle for a two-year degree, or skip college altogether.?

Until fairly recently, that decision made economic sense. Mining jobs were plentiful, and the money was good. But the collapse of the coal industry here and across Appalachia has made it harder to survive on a high school education. Today, just under half the residents over the age of 16 in Perry County, where Hazard sits, are employed; the national average is 63 percent. More than a quarter of the county’s residents are in poverty; the median household income is $45,000, compared to $75,000 nationally.?

Now, spurred by concerns that low levels of college attainment are holding back the southeastern swath of the state, the Kentucky legislature is exploring ways to bring baccalaureate degrees to the region. The leading option calls for turning Hazard’s community and technical college into a standalone institution offering a handful of degrees in high-demand fields, like teaching and nursing.

The move to expand education here comes as many states are cutting majors at rural colleges and merging rural institutions, blaming funding shortfalls and steadily dwindling enrollments.

If successful, the new college could bring economic growth to one of the poorest and least educated parts of the country and serve as a model for the thousands of other “educational deserts” scattered across America. Proponents say it has the potential to transform the region and the lives of its battered but resilient residents.

But the proposal carries significant costs and risks. Building a residence hall alone would cost an estimated $18 million; running the new college would add millions more to the tab. Enrollment might fall short of projections, and the hoped-for jobs might not materialize. And if they didn’t, the newly-educated residents would likely take their degrees elsewhere, deepening the region’s “brain drain.”

“The hope is that if you build the institution, employers will come,” said Aaron Thompson, president of the Kentucky Council on Postsecondary Education, which has studied the idea on behalf of the legislature. “But it is somewhat of an experiment.”

Still, Thompson said, it’s an experiment worth exploring.?

“To say you need to move to be prosperous is not a solution, and that’s pretty much been the solution since many of the coal mines disappeared,” he said.

At the airport in Lexington, there’s a sign greeting passengers that reads, “You’ve landed in one smart city.” Lexington, the sign proclaims, is ranked #11 among larger cities in the share of the population with a bachelor’s degree or higher.

But drive a couple hours to the southeast, and the picture changes. Only 13 percent of the residents of Perry County over the age of 25 hold a bachelor’s degree or higher, well below the national average of 34 percent.?

Study: Building a new public university in Southeastern Kentucky ‘problematic’

Michelle Ritchie-Curtis, the co-principal of Perry County Central High School, said the problem isn’t convincing kids to go to college, it’s keeping them there. Though nearly two-thirds of the county’s high school graduates continue on to college, just over a third of those who enroll in public four-years graduate within six years, compared to close to 60 percent statewide, according to the Council on Postsecondary Education.?

In Hazard, as in many rural places, kids grow up hearing the message that they need to leave to succeed. But many return after a year or two, citing homesickness or the high cost of college, Ritchie-Curtis said. Sometimes, they feel ashamed about abandoning their aspirations. They take off a semester, and it becomes years, she said.?

Those who make it to graduation and leave tend to stay gone, discouraged by the region’s limited job opportunities. This exodus, and the lack of a four-year college nearby, have hampered Hazard’s ability to attract employers who might fill the void left by the decline of coal, said Zach Lawrence, executive director of the Hazard-Perry County Economic Development Alliance.

Ritchie-Curtis said that having a local option would solve the homesickness problem and could save students money in room and board. It could also help stem the region’s brain drain and alleviate a teaching shortage that has forced the school to hire a growing number of career changers, she added.

To Jennifer Lindon, the president of Hazard Community and Technical College, “it all boils down to equity.”

“If we can provide a [four-year] education, and make it affordable, perhaps we can break the cycle of poverty in Southeast Kentucky,” she said.

MIT, Yale and other elite colleges are finally reaching out to rural students

Converting Hazard’s two-year college into a four-year institution wasn’t among the options initially considered by the Kentucky General Assembly. When lawmakers asked the state’s Council on Postsecondary Education to study the feasibility of bringing four-year degrees to Southeast Kentucky, it offered three approaches: building a new public university; creating a satellite campus of an existing comprehensive university; or acquiring a private college to convert into a public one.?

But the council concluded in its report that each of those alternatives was “in some way problematic.” A new university would be prohibitively expensive and might fail; a new branch campus could suffer the same enrollment challenges as existing satellites; and acquiring a private college would be legally complicated.?

The council considered the possibility of allowing the community college to offer baccalaureate degrees — something a growing number of states permit — but worried that doing so would lead to “mission creep” and “intense competition” for the state’s dwindling number of high school graduates.

Instead, the council recommended that the legislature study the idea of making Hazard’s community college a standalone institution offering both technical degrees and a few bachelor’s programs “in line with workforce demand.” Starting small, the council suggested, would allow policymakers and college leaders to gauge student demand before building out baccalaureate offerings.

That approach makes sense to Sen. Robert Stivers, the president of the Kentucky Senate, and the sponsor of the bill that commissioned the council’s study.?

“I don’t think you can just jump off the cliff into the lake,” he said. “You need to be a little more measured.”?

But Andrew Koricich, executive director of the Alliance for Research on Regional Colleges at Appalachian State University, said the region’s residents deserve a comprehensive college. He likened the limited offerings envisioned by the council to former President George W. Bush’s “soft bigotry of low expectations.”

“There’s this idea that rural people should be happy they have anything,” he said.?

Koricich pointed to the recent merger of Martin Methodist University, a private religious college, with the University of Tennessee system as proof that the legal hurdles to acquiring a private college aren’t insurmountable.?

But Thompson, the CPE president, said that the private colleges in southeast Kentucky are located too far from most residents and the schools weren’t interested in being acquired, anyway. He argued that while a comprehensive university might be “ideal,” it wasn’t realistic.

“In an ideal world, I’d be young again with a great back,” he said. “But in reality, I work with what I’ve got. And that’s what we’re doing here.”

Rural universities, already few and far between, are being stripped of majors

When Stivers was growing up in southeastern Kentucky in the ’60s and ’70s, coal was king. A high school graduate could get a job paying $15 an hour — good money at the time — without ever setting foot in a college classroom, he said.?

With mining jobs so abundant, “there wasn’t a value placed on education,” Stivers recalled.

Coal production peaked in eastern Kentucky in 1990, and has been on the decline ever since. Today, there are just over 400 individuals employed in coal jobs in Perry County.

The shrinking of the sector has had ripple effects across Appalachia, hurting industries that support mining and local businesses that cater to its workers. Many residents have migrated to urban centers, seeking work, and once-thriving downtowns have been hollowed out.

By the middle of the last decade, most of the buildings in downtown Hazard were either empty or occupied by attorneys and banks. The only place to gather was a hole-in-the-wall bar called the Broken Spoke Lounge, recalled Luke Glaser, a city commissioner and assistant principal at Hazard High School. When the Grand Hotel burned down, in 2015, a sense of resignation settled in, Glaser said.

The region has also been hard hit by opioids, which were aggressively marketed to rural doctors treating miners for injuries and black lung disease. In 2017, Perry County had the highest opioid abuse hospitalization rate in the nation.

Then, in 2021, and again in 2022, the region suffered severe flooding, which washed away homes and took the lives of almost 50 residents of Southeast Kentucky.

Yet Hazard is also in the midst of what Glaser calls an “Appalachian Renaissance,” a revival being led by 20- and 30-somethings who have come home or moved to the area in recent years. Though Appalachian Kentucky lost 2.2 percent of its population between 2010 and 2019, Hazard grew by 13 percent.?

A decade ago, a group of long-time residents and young people began meeting with a mission to revitalize Hazard’s main street. The group, which called itself InVision Hazard, hired a downtown coordinator and brought free Wi-Fi and improved signage to the downtown area.

Over the past four-and-a-half years, close to 70 new businesses have opened within a three-mile radius of downtown, and only eight have closed, according to Betsy Clemons, executive director of the Hazard Perry County Chamber of Commerce. There’s an independent bookstore, an arts alliance that will put on seven full-length productions this year, and a toy store — all run by residents who grew up in Hazard and returned as adults.

The Grand Hotel, which stood as a burned-out shell for years, has finally been torn down, making way for an outdoor entertainment park with space for food trucks and a portable stage, and plans for live entertainment on Friday nights.

As the downtown has transformed, collective feelings of apathy and resignation have given way to a new sense of possibility, Glaser said. Brightly colored murals reading “We Can Do This,” and “Together” adorn the sides of two downtown buildings.

To Mandi Sheffel, the owner of Read Spotted Newt bookstore, the creation of a four-year college feels like a logical next step for a place that was recently dubbed “a hip destination for young people” (a description that both delights and amuses people here).

“In every college town I’ve been to, there’s a vibe, a pride in the community,” she said.

These days, Hazard is feeling that pride, too.

On the vocational campus of Hazard Community and Technical College in February, Jordan Joseph and Austin Cox, recent high school grads, stood alongside a tractor trailer truck, pointing out its parts. In as little as four weeks, they could become commercially licensed truck drivers, a career that pays close to $2,000 a week.

Both men followed dads and grandads into the profession and said they couldn’t imagine sitting in a classroom for four years after high school. Like the sign on the side of the truck they were working on said, they want to “Get in, Get Out, and Get to Work.”

Inside one of the campus’ labs, a pair of aspiring electricians said they doubted many local residents would be able to afford a four-year degree.

“I don’t think you’d get a lot of people,” said Walker Isaacs, one of the students.

Their skepticism underscores a key risk in creating a four-year college in a place that’s never had one: There’s no guarantee students will enroll. Larger forces — including a looming decline in the number of high school graduates, an improved labor market, and public doubts about the value of higher education — could dampen demand for four-year degrees, forcing the college to either cut costs or seek state funding to cover its losses.

Recognizing this risk — and the possibility that employers won’t show up, either — the Council declined to give an “unqualified endorsement” to the idea of turning the community college into a four-year institution, saying further study was needed. In February,? Stivers, the state Senate president, introduced a bill that calls on the council to survey potential students and employers about the idea and to provide more detailed estimates of its potential costs and revenues.

Converting the college could also cause enrollment to fall at the state’s existing public and private four-years. Eastern Kentucky University, the hardest hit, could lose as many as 250 students in the seventh year after conversion, the council estimated in its report. While the council did not examine the possible effect on private colleges in the region, the president of Union College in Barbourville, Marcia Hawkins, said in a statement that, “Depending on the majors added, such a move could certainly impact enrollment at our southern and eastern Kentucky institutions.”

But on the main campus of Hazard Community and Technical College, there’s growing excitement about the prospect of the two-year college becoming a four-year.

Ashley Smith, who is studying to become a registered nurse, said the proposed conversion would make it easier for her to earn the bachelor’s degree she’s always wanted. With three kids at home, she can’t manage an hours-long commute to and from class.

Another nursing student, Lakyn Bolen, said she’d be more likely to continue her education if she could do so from home. She left Hazard once to finish a four-year degree, and is reluctant to do so again.

“It’s not fun going away,” Bolen said. “We definitely need more nursing opportunities here.”

Dylon Baker, assistant vice president of workforce initiatives for Appalachian Regional Healthcare, agrees. His nonprofit, which operates 14 hospitals in Kentucky and West Virginia, has struggled with staffing shortages and spent millions on contract workers. The shortages have forced the system to shutter some beds, reducing access to care in a region with high rates of diabetes, cancer and heart disease.

“We are taking care of the sickest of the sickest,” Baker said. “We have to give them access to quality health care.”

Hazard’s community college already offers some higher-level degrees, such as nursing, through partnerships with four-year public and private colleges in Kentucky. But most of the programs are online-only, and many students prefer in-person learning, said Deronda Mobelini, chief student affairs officer. Others lack access to broadband internet or can’t afford it.

If the conversion goes through, the college will continue to offer online baccalaureates and a wide range of certificates and associate degrees, said Lindon, the HCTC president. She envisions a system of “differential tuition” where students seeking four-year degrees would pay less during the first two years of their programs.

Though the college would still cater to commuters, a residence hall would attract students from a wider area and alleviate a housing shortage made more acute by the recent floods, Lindon said.

Ultimately, the future of the institution will rest with the Kentucky legislature, which must decide if it wants to spend some of its continuing budget surplus on bringing four-year degrees to an underserved corner of the state.

But Lindon is already imagining the possibilities, and the Appalachian culture course that she’d make mandatory for students seeking bachelor’s degrees.

“For too long, we’ve been taught to hide or even be ashamed of where we’re from,” she said. “We want to teach young people to be proud of our Appalachian heritage.”

This story about access to higher education was produced by?The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for our?higher education newsletter. Listen to our?higher education podcast.

The Kentucky Senate, Feb. 27, 2024. (Kentucky Lantern photo by Arden Barnes)

FRANKFORT — A bill that open government advocates warn would introduce loopholes into Kentucky’s open records law could make its way to Democratic Gov. Andy Beshear’s desk when lawmakers return to Frankfort later this week.?

The final two days of the 60-day regular session — Friday and Monday — are set aside to consider gubernatorial vetoes of bills that both chambers have passed. The Republican supermajority can easily reach the simple majority of votes needed to override ?vetoes.

Legislation that has yet to make it through both chambers also could come up in the final two days, including a bill to end the certificate of need requirement for freestanding birth centers and a maternal health bill that ran aground in the Senate after a late amendment was added in committee.

The Senate is expected to consider confirming Robbie Fletcher as the state education commissioner, along with appointments to other positions. Thanks to a law enacted last year, it will be the first time the education commissioner has required Senate confirmation.

Any bill that lawmakers pass would be subject to a successful veto by Beshear because the legislature would have no chance to override it.

‘Bad actors’

Beshear has voiced support for the controversial changes to the open records law proposed in House Bill 509. During his weekly news conference last week he said he needs to see the bill’s final form before deciding what action to take on the bill. “We’ll review it when it gets to me.”

The House passed the bill, but the Senate did not give it a floor vote ahead of the veto period. The Senate could give final passage to the bill when both chambers reconvene Friday and Monday.

HB 509 would require state and local government agencies to provide email accounts to public officials on which to conduct official business. However, the bill doesn’t address what happens to public records created on private devices.?

Beshear told reporters he thinks the bill would be more effective than current law in deterring officials from conducting public business on their personal devices or email accounts. He traced the controversy to the Kentucky Department of Fish and Wildlife Resources (KDFWR), which has waged a so far unsuccessful court fight to block release of commissioners’ text messages. The challenge is now before the state Supreme Court.

“Fish and Wildlife hadn’t issued state email addresses to their commissioners and they insisted on texting each other on their own devices,” Beshear said. “That’s wrong. So, right now, what the law says is if you do that, that is an open record. But all we can do in terms of enforcement is ask that person ‘would you please look through your phone and take snapshots of anything that we’re asking for and send them to us now?’ Do you think a bad actor who’s trying to get around the open records request is going to do that and send them to you?”

HB 509 would destroy Kentucky’s long tradition of openness. And Beshear knows it.

Beshear said HB 509’s mandate that official business be conducted on government email accounts could aid transparency by making government agencies responsible for the records. “What it does is take whether you get a record away from a potential bad actor and put it with the agency that can secure those records.”

Agencies could discipline employees who violate HB 509’s mandates — by using a personal cell phone or email account for official communications, for example — but it’s unclear if and how those records could be publicly disclosed. The bill includes no penalties for violations by elected officials. The bill also does not require agencies to search for public records on personal devices.?

When asked if he thought Beshear would veto the bill, Republican Senate President Robert Stivers told reporters as the veto period began: “You’d have to ask the governor on that. I do not know. I don’t know what he would do.”?

The open records challenge against the KDFWR was spurred by a former member of the KDFWR’s governing board requesting text messages among Fish and Wildlife officials and lawmakers. The governor and Republican legislature have also clashed over the Kentucky Senate not confirming gubernatorial appointments to the KDFWR’s governing board. Five appointments are? awaiting confirmation this session.?

Here’s a look at where some other high-profile legislation stands:?

Momnibus?

After picking up some controversial baggage in the last leg of the legislative session, the maternal health bill called “Momnibus” failed to get final passage.?

The bill would incentivize Kentuckians to get prenatal care by adding pregnancy to the list of qualifying life events for health insurance coverage, among other things. It had bipartisan support.

But a late amendment borrowed language from a bill filed by an anti-abortion lawmaker that requires hospitals and midwives to refer patients who have nonviable pregnancies or whose fetuses have been diagnosed with fatal conditions to perinatal palliative care services. Abortion rights advocates say the requirement could become coercive.

The bill awaits Senate passage and Beshear’s action.?

Meanwhile, Democrats in the Senate have filed amendments

Democrats in the Senate have filed amendments to loosen the state’s near-total ban on abortion by adding exceptions for rape, incest and lethal fetal anomalies ?and changing the word “baby” to “fetus.”?

It could still pass in the final two days but would have to be a version that meets Beshear’s approval because lawmakers would be unable to override a veto.??

Freestanding birth centers?

A bill to remove the certificate of need requirement for freestanding birth centers that meet a set of criteria was approved by the House. It has had two readings in the Senate but still needs to pass a Senate committee.?

A Senate Resolution to reestablish a task force to study certificate of need in Kentucky has also not passed.?

Crime bill awaits action by Beshear

A sweeping crime bill backed by Jefferson County House Republicans has been awaiting action by the governor for about a week. House Bill 5 has been hotly debated, with House Democrats futilely arguing on the last day before the veto period against the measure.??

The bill includes new or increased criminal penalties, bans street camping and imposes a three strikes rule on violent offenders. It requires prisoners convicted of violent offenses to serve 85% of their sentences instead of the current 20% before becoming eligible for parole, and classifies more crimes as violent.

HB 5 has gained opposition from across the political spectrum, as both progressive and conservative groups have argued that a more in-depth fiscal analysis is needed before implementing the legislation. However, the Kentucky Fraternal Order of Police and some families of deceased crime victims have expressed support for the bill.?

Beshear told reporters Thursday that he was still reviewing the bill and was supportive of parts of it but concerned about other sections. He added that he supported the carjacking provision but had reservations about provisions that could criminalize homelessness by creating the crime of illegal street camping.?

He said a part of the bill that would “allow for the destruction of a weapon used in a murder” is close to him a year after the Old National Bank shooting in Louisville. The bill would allow someone to purchase such a weapon at auction and ask Kentucky State Police to destroy it. The funds are used for local government and law enforcement grants.?

Local officials highlighted the issue of the auctions after the shooting last year. One of the victims, Tommy Elliot, was a close friend of Beshear’s.?

“Thankfully, the ATF seized that weapon, and it was destroyed,” Beshear said of the weapon used in the bank shooting. “Otherwise, I was going to have to watch a weapon that murdered my friend be auctioned to the highest bidder.”?

Beshear also added that he wished legislation like this would be broken up into separate bills. He can only issue line-item vetoes on budget bills.?

Changes to horse racing and gambling oversight

Beshear can also take action on another bill that was passed by the General Assembly just before the veto period began that would dissolve the Kentucky Horse Racing Commission and Department of Charitable Gaming.?

Senate Bill 299 would form a new government corporation to oversee the duties of the commission and department. Both of those are currently under the Public Protection Cabinet. The House and Senate have both given approval on the measure.

The bill has been backed by the legislature’s Republican leadership. In a joint meeting of the Senate and House economic development committees, Senate Majority Floor Leader Damon Thayer and House Speaker David Osborne presented the bill.?

Beshear told reporters that it does not impact gubernatorial appointment powers but would create an independent corporation that could “take regulatory action and punish different groups,” such as trainers. That raises a question about the constitutionality of the bill, he said, as an executive branch officer will not be over the corporation.

“So, how are you independent but have full regulatory and enforcement authority? I think that’s the thing to work through there,” Beshear said. “We’ve never seen it before. We don’t know of another group that acts that way, so a little complex legally.”?

New hurdles for fossil fuel-fired power plant retirements

Beshear has yet to act on Senate Bill 349, a Senate president-backed bill that would add new bureaucratic hurdles to slow the retirement of fossil fuel-fired power plants. Before utilities could retire a fossil fuel-fired plant, they would have to notify a newly created board, whose membership would be dominated by fossil fuel industries.

Investor-owned utilities and environmental advocacy groups have decried the bill, saying it could keep aging, uneconomical coal-fired power plants on the grid and burden ratepayers with the costs of their maintenance. Advocates for the bill, including coal industry interests, have argued SB 349 is needed to ensure the reliability of the state’s energy grid, an assertion rebuffed by the leader of Kentucky’s largest utility.

Beshear last month criticized the bill, saying it was going to “take authority” from the state’s utility regulator, the Kentucky Public Service Commission, which makes decisions on power plant retirement requests. He said he’s been in the “same place” as some of the people who have pushed for SB 349, but that the proposed board is “not the way” to address the issue.

Limiting power of Louisville’s air pollution regulator

Beshear on Monday vetoed House Bill 136, sponsored by Rep. Jared Bauman, R-Louisville. The bill would prevent the Louisville Air Pollution Control District from issuing fines against industries that self-disclose violations of federal pollution regulations. Critics, including the environmental law group Kentucky Resources Council, say it could give industry in Jefferson County a “free pass” from penalties when a self-disclosure of a violation happens by ending the air pollution regulator’s ability to issue penalties in such cases.

Bauman and other Republicans have argued HB 136 is needed to align air pollution regulations in Jefferson County with the rest of the state. Most Democrats have opposed the bill, worried the bill could create less accountability over air pollution in Jefferson County.?

Criminalizing documentation of meatpacking plants, ag operations without consent?

Senate Bill 16, sponsored by Sen. John Schickel, R-Union and backed by Tyson Foods and Kentucky’s poultry industry, would criminalize using recording equipment or drones at concentrated animal feeding operations (CAFOs) and commercial food processing and manufacturing plants without the permission of the operation’s owner or manager. It would also criminalize distributing the footage.

Group alleges ‘hidden-camera’ video reveals ‘cruelty’ in chicken production in Kentucky?

Critics, including animal welfare groups, have said the bill is a so-called “ag gag” bill meant to hide from the public and prevent whistleblowers from exposing the conduct and practices of large-scale, corporate agricultural operations. An animal protection advocacy group released a video from a “hidden-camera” investigation of alleged “cruelty” within Kentucky poultry production, an investigation the group argues would be criminalized under SB 16.?

Schickel and other SB 16 supporters have said the bill is needed to prevent harassment of employees and agricultural operations that provide jobs to Kentucky communities. The bill passed through the legislature largely on party lines.?

Bills that are in the legislative graveyard or near

Anti-DEI bills: Republican efforts to limit or end diversity, equity and inclusion programs in public universities and colleges died when the Senate declined to consider changes made in its bill by the House. Any effort to revive anti-DEI legislation would almost certain be vetoed by Beshear.

Drag bill: After several edits to soften the legislation, a bill to place restrictions on adult-oriented businesses with “sexually explicit” performances sputtered on the House side despite passing a committee.??

Vaccine bill: A bill to bar employers and educational institutions from requiring the COVID-19 vaccination for treatment, employment or school, passed in the Senate but failed to advance on the House side.?

Though it could still pass in the final days of the session, Beshear, an outspoken supporter of the vaccines, would likely veto it.?

Abortion bills: None of the bills seeking to loosen Kentucky’s near-total abortion ban were assigned committees, making them effectively dead on arrival.?Those include:?

• A Republican bill to add rape and incest exceptions and clarify doctors can treat ectopic pregnancies?
• A Democratic bill to add rape and incest exceptions.?
• A Democratic bill to roll back all abortion restrictions.?

Loosening state child labor law: A bill that would allow some teenagers to work longer and later hours, voted down and then revived by a Senate committee, still needs final passage through the Senate to get to Beshear’s desk.?

Lawmakers wouldn’t have the chance to override a veto of House Bill 255 from Beshear, who in past comments panned the legislation saying child labor protections are there “for a reason.”?

Education and Labor Cabinet officials have said HB 255 also deletes language in state law that mirrors federal prohibitions on employing 14- and 15-year olds in hazardous occupations, such as jobs involving railroad cars and conveyors, loading and unloading goods from motor vehicles and requiring the use of ladders. State labor officials said they wouldn’t be able to enforce those hazardous occupation standards even if still federally prohibited.?

Bill sponsor Rep. Phillip Pratt, R-Georgetown, who owns a lawn and landscaping company, said his legislation would help minors “gain valuable experience in the workplace.”

Weakening a mine safety protection: House Bill 85, sponsored by Rep. Bill Wesley, R-Ravenna, would weaken a key workplace protection for coal miners, according to a long-time coal miner safety advocate. Wesley has argued HB 85 is needed to help smaller coal mines continue operating.?The bill would need approval from the Senate Natural Resources and Energy Committee and three required readings before being sent to the governor, who could veto it without the legislature overriding it.?

A graphic of the proposed Bell County storage facility. (Gov. Andy Beshear/Youtube)

FRANKFORT — An Eastern Kentucky coal mining site set to become a giant hydropower battery is getting a significant boost from the federal government.?

Florida-based Rye Development is in line for an $81 million grant from the U.S. Department of Energy for its Lewis Ridge Pumped Storage Project.?

The funding is provided through the Bipartisan Infrastructure Law.?

A release from the company says it’s one of the first hydropower pumped storage facilities built in more than 30 years and the first ever built on former coal mine land.?

The utility-scale battery would be able to provide up to eight hours of on-demand, consistent power.

Hydropower pumped storage facilities work by having two water reservoirs at different elevations. Water is released when demand for electricity is high; it flows downhill through a turbine to generate power. The water is pumped back uphill when demand for power is low.

At a Thursday news conference with Democratic Gov. Andy Beshear and legislative leaders, Rye Development chief executive officer Paul Jacob said the Bell County project was unlike any “that’s been built around the world.”?

“This is a mountain that has on it five different coal seams and countless mines,” Jacob said. “We’re building on the top of that mountain basically a 60-acre pool. That itself is an engineering challenge. But the federal grant that we’ve received is going to help de-risk that and help us accelerate the project.”?

Rye Development plans to invest $1.3 billion in the 287-megawatt project, estimated to create about 1,500 construction jobs, 30 “operation” jobs and generate enough energy to power almost 67,000 homes, according to a press release from Beshear’s office. Jacob said the project could take seven to 10 years to construct, with the project’s longevity lasting up to a century.

Senate President Robert Stivers, R-Manchester, called the project regionally “transformational,” saying it would have a huge impact on a region that was previously a “rich energy production area.”?

“This is a perfect example: how when people come together in a region, the impact that you can have, no longer just a county, a city — but six, eight, 10, 12 counties. And I have to say this: maybe even a little bit into Tennessee,” Stivers said.?

Beshear hailed the project, saying state officials believed the project was the “largest investment ever in Eastern Kentucky.”?

“We have a lot of sites like this that could be a part of a clean energy future on top of an abandoned coal mine,” Beshear said.?

There are dozens of utility-scale hydropower pumped storage facilities across the country, according to the Center for Land Use Interpretation. Rye Development also has such storage facilities in the Pacific Northwest.?

Sen. Johnnie Turner, R-Harlan, who represents Bell County, said the “mountains was coal first” and ?“hydro first now.”?

“We’re moving on,” Turner said.?

Would ratepayers get handed the bill for expanding electricity generation and transmission to accommodate energy-hungry data centers? (Getty Images)

Republicans in the GOP-dominated Kentucky Senate advanced a bill Tuesday largely on a party line vote to create new hurdles before utilities can retire fossil fuel-fired power plants in the state, touting the legislation as a way to keep the state’s electricity supply reliable and available.?

Senate Bill 349, backed by Senate President Robert Stivers, R-Manchester, and primarily sponsored by Sen. Robby Mills, R-Henderson, would create a new review commission that utilities would have to provide notice to before filing requests to the state’s utility regulator to retire a fossil fuel-fired power plant.?

“Senate Bill 349 simply requires due diligence and a thorough review to ensure existing capacity is not retired too quickly and that any new or replacement generation is ready to meet Kentucky’s energy needs,” Mills said on the Senate floor.?

Investor-owned utilities, such as Duke Energy and Louisville Gas and Electric and Kentucky Utilities (LG&E and KU) and environmental groups have previously decried the bill as creating unnecessary bureaucracy to impede retirement requests and keep aging, uneconomical coal-fired power plants on the grid. Ratepayers, critics warn, could be burdened with the costs of unnecessarily extending the life of coal-fired power plants. Critics have also honed in on what they see is the problematic makeup of the commission, which would include industry representatives from a number of energy sources but favor the? fossil fuels —? coal and natural gas.?

Lane Boldman, the executive director of the environmental advocacy group Kentucky Conservation Committee, said she doesn’t understand the need to create an “additional layer” of regulation when the Public Service Commission could have its resources boosted to handle broader responsibilities.?

“It just doesn’t make sense to hang on to infrastructure that’s even near its lifecycle,” Boldman said. “I know there were comments made that these plants aren’t done yet, but they’re clearly past their prime.”

SB 349 passed the Kentucky Senate on a party line vote of 28-9, with a handful of Republicans from Northern Kentucky and the Louisville area joining nearly all Democrats in voting against the bill. The bill heads to the House for its consideration.?

This proposed 18-member commission, dubbed the Energy Planning and Inventory Commission (EPIC) under SB 349, would be charged with creating a report for each retirement request analyzing the impacts of and alternatives to the request, including how it would impact electricity supply and whether the retirement would create a “loss of revenue” for local and state government.?

Utilities wouldn’t be allowed to file retirement requests with the Kentucky Public Service Commission (PSC), the state utility regulator that approves or denies such requests, without having the EPIC report on file.?

Mills said he made changes to SB 349, added through a floor amendment, after listening to feedback from utilities. The amendment would shorten the timeframe in which EPIC could operate ahead of a retirement request made to the PSC. Utilities would have to give notice to EPIC of a retirement request 180 days before filing a request to the PSC, instead of 365 days in the original bill.?

Senate Democrats who criticized the bill echoed the concerns of utilities and environmental groups.

Sen. Karen Berg, D-Louisville said the proposed commission would limit the state’s future energy choices. “My constituents want clean energy, clean air and clean water,” Berg said. “If we don’t begin to deliver that to our children, then we’re gonna leave them in a world that is not safe to live in.”?

Sen. David Yates, D-Louisville, said the Senate should be “open and honest” that the added bureaucracy of the commission would contribute to future rate increases for Kentuckians.?

Senate President Robert Stivers, R-Manchester, a co-sponsor of the bill, reiterated his support by saying there needed to be an “honest conversation” about the upcoming “reliability crisis” the state faces.?

“We do not need to remove any generation. In fact, we need to increase generation,” Stivers said, referencing the amount of power supply created in Kentucky.?

LG&E and KU President John Crockett, who was among utility representatives who testified against SB 349, has previously rebuffed assertions from Stivers that the state is facing an energy reliability crisis.?

SB 349 does have the backing of the coal interests. Dependable Power First Kentucky is a lobbying group affiliated with America’s Power, a national organization advocating “on behalf of the U.S. coal fleet and its supply chain.”?

In a statement last week when SB 349 passed out of a Senate committee, Dependable Power Kentucky commended the bill sponsors for “taking much needed steps to help ensure a reliable supply of electricity for the citizens of Kentucky.”

Rep. Bill Wesley, R-Ravenna, speaks before a committee about his bill to reduce the number of mine emergency technicians for smaller coal mines. (Kentucky Lantern photo by Liam Niemeyer)

Republicans in the GOP-dominated Kentucky House of Representatives passed a bill Monday that a long-time coal mine safety advocate says would put miners at risk by weakening a key protection put in place nearly two decades ago.?

House Bill 85, sponsored by Rep. Bill Wesley, R-Ravenna, would reduce the number of required mine emergency technicians (METs) on a shift from two to one for underground coal mines that have 15 or fewer miners working at a time. METs are miners trained to provide emergency medical care and stabilize an injured worker’s condition.

Attorney Tony Oppegard, a former state and federal mine safety official, was part of a team that wrote a 2007 state law requiring two METs for all coal mining shifts. Oppegard previously told the Lantern the added protection was spurred by the death of a Harlan County miner, David “Bud” Morris.?

The one MET on site, along with other miners, failed to provide proper emergency care for Morris’ injuries after an accident involving heavy mining equipment, which was cited in a federal report as a cause of Morris’ death.?

Wesley on the House floor reiterated his past reasoning for the bill, arguing that letting smaller coal mining shifts have only one MET would keep such mines operating consistently.?

“There have been coal mining shifts or basically the whole coal production shut down based on because one MET did not show up for work,” Wesley said. “Nobody got paid. Everyone was sent home, and I think that this is a needed bill to help all the coal miners.”?

Oppegard had previously rebuffed Wesley’s arguments about coal mines shutting down due to a lack of required METs. The former mine inspector had said having two METs on a shift allows for a backup MET to be on site in case the other has been hurt or is unable to perform emergency medical care.?

A couple of Democrats spoke against the bill, including the only House Democrat currently representing Eastern Kentucky. Rep. Ashley Tackett-Laferty, D-Martin, said she appreciated Wesley’s intentions in preserving coal mining jobs, having supported other pro-coal policies passed by the state legislature.?

But she didn’t support HB 85, arguing it could eliminate “much needed safety positions currently available to our coal miners in an inherently dangerous work zone.”

“It truly troubles me to think that we could potentially be trading the safety of our coal mining families for what appears to be a nominal financial benefit, if anything at all,” Laferty said. “The safety practice of having an emergency medical technician on site is not what’s causing these mines to close.”

Laferty said she had reached out to coal miners and those in the industry when researching the bill, mentioning that one miner told her a shift had closed down just once because of a lack of METs over the course of a more than 20-year career.?

Rep. Chad Aull, D-Lexington, invoked the name of David “Bud” Morris in voting against the bill, saying he believed the House was “forgetting” the reasons why previous legislation was passed.?

Rep. Jim Gooch, R-Providence, reiterated his support for the bill, saying he had family in the coal mines when the original 2007 law had passed that required two METs.?

“We were having some experiences that some smaller operators might cut down to 10 or fewer employees,” Gooch said, who voted for the 2007 law. “I don’t think it’s any threat to the safety of our miners.”

Miners have suffered more exposure to silica dust as more rock must be removed to reach dwindling coal seams. (Getty Images)

Kentucky’s lone Democrat in Congress is joining a renewed push to expand benefits for coal miners suffering from black lung and their families and to ease the burden of seeking such benefits.?

Rep. Morgan McGarvey of Louisville during a Wednesday afternoon press conference with coal miner advocates from several states said he’s introducing the Relief for Survivors of Miners Act, a version of legislation put forth in recent years that seeks to help families of coal miners presumed to have died from black lung receive monthly payments.?

“Our area of Appalachia, we powered the energy revolution in America,” McGarvey said. “We paid for it in everything from the majesty of our mountains, to the very lives, health and safety of our miners. The hard working men and women who went every day, fulfilling their promise to go to work to make sure that we were succeeding as a country. And we’ve got to be there for them.”

Legislation signed by President Ronald Reagan in 1981 removed presumptions that assumed if a coal miner had worked a set number of years in an underground coal mine and was “totally disabled” by pulmonary or respiratory issues but had not technically been diagnosed with black lung, also known as coal miner’s pneumoconiosis, the miner could receive benefits. That presumption also applied to survivors of coal miners receiving monetary payments through the federal black lung program.?

Quenton King, a federal liaison for the environmental advocacy nonprofit Appalachian Voices, said it’s often an “adversarial process” to receive black lung benefits, particularly if a coal company would be on the hook for paying such benefits.?

“The coal companies are allowed to say that the miner doesn’t have black lung, or they didn’t get it from this coal company, they got it from a different one,” King said. “The coal companies don’t want to pay the bonds or the fees for that miner’s benefits.”?

McGarvey’s bill would also expand legal resources available to miners and their families who lack the financial means to hire an attorney in applying for benefits. The legislation would also request the federal Governmental Accountability Office to look at ways to improve the process of applying for black lung benefits.?

Advocates also touted another Democrat-backed bill recently introduced by Sen. Bob Casey, D-Pennsylvania, that would, among other things, restore cost-of-living increases for those receiving black lung benefits.?

“The current monetary benefits are insufficient. They have not kept up with the recent inflation rates,” said Courtney Rhoades, a black lung organizer for the Kentucky-based Appalachian Citizens’ Law Center. “ Because younger miners are diagnosed with black lung, they face the difficult decision of whether or not they remain in the mines and continue to be exposed to coal and silica dust or having to learn how to survive on a significant pay cut.”?

Both bills are being introduced again after previous versions failed to gain GOP co-sponsors, something that King said advocates are “trying every day” to achieve.?

“We appreciate all the senators working on this,” said Gary Harriston, the president of the National Black Lung Association who lives in West Virginia. “We do need Republicans to try and help out.”?

Amendment would defund newly proposed black lung protections

Coal miner advocates also have been raising concerns over an amendment added by a Republican congressman last month that would defund proposed enhancements to protections for coal miners against toxic dust that causes pneumoconiosis.

U.S. Rep. Scott Perry, R-Pennsylvania, added an amendment to an appropriations bill in November by a voice vote — meaning no record of individual votes were recorded to add the amendment — that would strip funding from the Mine Safety and Health Administration to implement a proposed rule that would lower the exposure limit to silica dust for miners, something coal miner advocates have been calling for.?

Such dust is often created when modern mining machines chip into quartz to reach coal seams releasing the respirable dust into the air, coupled with coal dust present in mines. Breathing that excessive dust leads to pneumoconiosis that cripples lung capacity and leads to death.?

In recent decades, a surge of black lung — including more severe cases of the disease — has hit Appalachian coal miners with diagnoses coming decades earlier in life than before. A study last year confirmed that miners’ exposure to silica dust is driving the recent epidemic of severe black lung.?

King said Perry’s amendment is “extremely disappointing. Thousands of coal miners and other miners stand to benefit from silica protection.”?

In a statement, a spokesperson for Perry said the amendment was added because MSHA’s proposed rule would apply to all mines, not just coal mines, under its jurisdiction, a “one-size-fits-all approach” that understates the costs mines will have to bear from the rule and doesn’t have specific provisions to ensure stricter dust enforcement is applied “only where necessary to improve safety.”?

“To be clear, this proposed rule is just the latest attempt by Democrats to close America’s mines and end the livelihoods of miners – which will be the outcome if this proposed rule goes into effect,” said spokesperson Lauren Muglia in an email.?

Chelsea Barnes, the director for government affairs and strategy for Appalachian Voices, said her and other advocates haven’t received any commitments from Republican senators that the amendment would be blocked.?

“We want to see bipartisan opposition to this amendment because we know that things can happen in negotiations, that compromises are made, and we could see something really, really disastrous end up in that bill,” Barnes said.?

Kim Lyons, a reporter for the Pennsylvania Capital-Star, contributed to this report.?

Big Sandy crayfish. (Center for Biological Diversity)

Two environmental advocacy groups are suing federal agencies for allegedly failing to implement conservation protections for hundreds of coal mines, including those in Eastern Kentucky, whose discharges into waterways could harm endangered and threatened aquatic life.??

Appalachian Voices and the Center for Biological Diversity, in a lawsuit filed in federal district court Wednesday, alleged hundreds of coal mines across Kentucky, West Virginia and Virginia lack required environmental protection plans given their proximity to the aquatic habitat of species that are threatened or endangered. The lawsuit lists the Big Sandy crayfish, Guyandotte River crayfish and the Candy Darter as three species “imperiled” by coal mining impacts.?

The lawsuit states a biological opinion issued by the U.S. Fish and Wildlife Service in 2020 requires surface coal mining and reclamation operations seeking a federal permit must also create a “protection and enhancement plan” if such operations could affect nearby threatened and endangered species. Such a protective plan is required to include measures to protect habitats of species during mining or reclamation.?

According to the lawsuit, the federal Office of Surface Mining Reclamation and Enforcement has “failed to properly implement the oversight” of making sure coal mines miles upstream from the habitat of at-risk species have protective plans.?

The U.S. Fish and Wildlife Service, the lawsuit states, also has failed to provide timely feedback on such protection plans for permits and “ignored the best available science” in allowing dozens of permits in Kentucky to go without protection plans.?

Willie Dodson, a field coordinator for Appalachian Voices, in a statement said better protection for rivers and creeks can also help the well-being of communities alongside threatened and endangered species.?

“It’s well past time that regulators do their jobs to ensure that the coal industry abides by the law and reduces water pollution that harms communities as well as at-risk species,” Dodson said in his statement.?

The lawsuit specifically states Dodson has “complained to Kentucky” about the lack of a protection plan for the Big Sandy crayfish near the Hunts Branch surface coal mine in Pike County, which drains into Knox Creek, and that Dodson plans to continue to monitor the crayfish and water quality at the creek.?

Emails requesting comment sent Friday to the U.S. Department of the Interior and the U.S. Fish and Wildlife Service were not immediately returned.

A statue of an underground miner honoring the region's coal mining history stands in the center of Providence in Webster County. The former Dotiki coal miner who served as a model for the statue, Bobby Shoulders, died in October. (Kentucky Lantern photo by Liam Niemeyer)

PROVIDENCE — Walking through a bathhouse at what until a few years ago was Webster County’s last operating coal mine is not just a moment for Tony Felker to revisit memories. It is also a window into a way of life that he recognizes is disappearing.

Felker is quick to rattle through the nearly four decades of knowledge gained working in coal mines, most of that time as an underground mechanic for Webster County’s Dotiki mine. He walks past a counter where he would pick up a “cap light” before going underground. Markings on the lobby floor are from benches where he sat before work that have been removed.??

“Well, you get out here and you get dressed, and you see everybody —” he said, his voice trailing off as he looked around the bathhouse. “They’ve changed all of this around.”?

The Dotiki mine, operated by Alliance Resource Partners, produced about 2.5 million tons of coal in a year and employed roughly 200 people as recently as five years ago. But on a recent October afternoon, all was quiet, except for a few workers welding equipment to be sent elsewhere. Next to the showers was a large electric-powered “roof-bolter,” also used elsewhere in the company, to train miners.

ARP shuttered the Dotiki mine in 2019 because of “weak market conditions” to focus on its “lower-cost” mining operations elsewhere.?

Coal in Kentucky

Production (tons)

1990 – 179,373,269?

2022 – 28,334,145

Down 84%

Employment

1990 – 30,498

2023 – 4,978

Down 83%

Source: Kentucky Energy and Environment Cabinet

Around the time Felker started working at the Dotiki mine in the early 1990s, Webster County employed more than 1,100 workers in coal mining; now there are no more coal miners left in the county, according to state data.?

The disappearance of coal mining in Webster County has been? repeated across Kentucky as the cost of electricity generated through natural gas and renewable energy has generally outcompeted coal-fired power in the United States in recent years. It doesn’t matter whether the president was Donald Trump or Joe Biden, Democrat or Republican. Felker, who retired from the Dotiki mine in 2014, has seen coal decline through multiple administrations.?

“We were promised by a president that coal would be back,” Felker said. “It hasn’t. It’s losing ground in Kentucky. In other places, too.”?

But while Felker, an elected county magistrate and Democrat, understands coal is in decline, he doesn’t want to lose the coal mining that remains in the state.?

Kentuckians’ desire to keep the coal industry afloat is also reflected in this year’s campaigns for governor, even as environmentalists point to deadly disasters driven by climate change in Kentucky in recent years.

Burning coal is the single largest source of global temperature increase due to emissions of heat-trapping greenhouse gas emissions. Climate change is causing increased flooding, droughts and a loss of biodiversity across the world.

Environmental advocates say climate change has not spared Kentucky, pointing to the Western Kentucky tornado outbreak in 2021 and devastating floods in Eastern Kentucky in 2022 as examples of increasing extreme weather events driven by climate change.?

But on the campaign trail, climate change is rarely mentioned, if at all, by Democratic Gov. Andy Beshear and Republican challenger Attorney General Daniel Cameron.

Environmental advocates see that omission as not only a political calculation for pro-coal votes in a contentious election but also as a missed opportunity to start a conversation on the realities of climate change in a state that still gets more than two-thirds of its electricity by burning coal.

Cameron and Beshear say they’re advocates for a diverse energy mix including fossil fuels, something that Felker also supports. Felker welcomes new solar installations providing up to 400 megawatts of power capacity that are setting up in his county, part of a rapidly changing energy market in Kentucky.?

Louisville Gas and Electric and Kentucky Utilities (LG&E and KU) is proposing before the Kentucky Public Service Commission (PSC)? to retire some of its coal-fired power in favor of natural gas and some solar. Across the country, utilities are moving away from coal for economic and climate reasons. Felker was one of several local elected officials from Western Kentucky’s coalfield who urged the PSC to reject LG&E and KU’s plan.?

Felker questions the science behind climate change, but says he can’t say it’s untrue because it’s not his area of expertise. Regardless of who wins on Nov. 7, he doesn’t think a governor will be able to stop the decline of coal mining.

“Being in politics, you can’t make a whole lot of promises,” Felker said. “All you’re going to do is tell people what they want to hear.”?

A changing climate — and energy market?

On the other end of the state, ?standing at a podium overlooking reclaimed strip mine land along the Perry-Knott county line in Eastern Kentucky, state Energy and Environment Secretary Rebecca Goodman quoted from a study co-authored by a University of Kentucky professor in 1990.?

“Those concerned with the future of Appalachia are coming to realize that coal will not drive the economy of the region much beyond the year 2010,” Goodman said. “They also are starting to accept that if the emphasis is to shift away from coal, something will have to be developed to replace its economic impact.”?

The new development Goodman and other state officials were celebrating in July was a planned $1 billion investment by Florida-based solar energy developer BrightNight to build a sprawling solar installation, with a capacity of 800 megawatts on reclaimed mine land.?

Kentucky recently ranked last of all states in wind and solar energy generation. But the massive solar investment in Eastern Kentucky serves as just one example of the surge of solar developers moving into the state to establish utility-scale solar installations and sell the power to utilities and companies seeking emissions-free energy sources.?

The Kentucky Public Service Commission’s Siting Board, which is in charge of approving new power generation facilities, has seen dozens of requests in the past three years to build new solar farms, compared to past years when the PSC saw no requests to build any new power plants, solar or otherwise. The Tennessee Valley Authority, which provides electricity to parts of Western Kentucky, is planning on retiring its coal-fired power plant fleet by 2035 in favor of primarily natural gas power and some solar power.

Adam Edelen, a Democrat and former Kentucky auditor of public accounts, is? a renewable energy developer and? played a consulting role in making the BrightNight project happen. He also spearheaded the construction of a solar installation in Martin County, which had a jobs fair last month where former coal miners came interested in the hundreds of construction jobs.?

For Edelen, the private sector has moved on to renewable energy regardless of what happens in state government. He said the devastating natural disasters in recent years only highlight the increasing impacts of climate change on the state.?

“When I see politicians saying that climate change is a hoax, that the green energy revolution isn’t coming — the fact is both are already here,” Edelen said. “There is no debate. There is no argument. This is settled. And we are either going to adopt the opportunities of the green energy economy, or you get run over by it. That really is the policy decision.”?

Citing research from climate scientists around the world including from NASA, the secretary-general of the United Nations has called on rich countries like the U.S. to end use of coal by 2030 and have carbon-free electricity generation by 2035, which means no new natural gas plants either, to prevent the worst effects of increasing climate change. A new study has found the world will likely break the internationally agreed upon threshold for global warming by early 2029 if the current rate of fossil fuel use is sustained.?

Yet climate change, in large part, has gone unmentioned by the candidates for governor this year.?

What the candidates say — and don’t say

In an August speech to executives and employees of local electricity distribution cooperatives gathered in Louisville, Cameron framed energy questions as part of the “culture wars” debate.

“Let me be clear. Radical climate activism is an assault on more than just our businesses and our energy bills. It happens to be a fundamental threat to our way of life,” Cameron said. “Even if they close every coal plant, put every miner out of work, ban every combustion engine — that’s not their goal. They will not stop. They’ll keep inserting radical gender ideologies into our kids’ classrooms. They’ll keep trying to let boys play girls’ sports.”?

But when asked twice by the Lantern after the speech if he believed in the science behind climate change, Cameron didn’t directly answer and instead pointed to the fact that China emits more greenhouse gasses annually than the United States. Because of the United States’ earlier industrialization, the U.S. has contributed more emissions overall since the 1800s.?

“I?? think that we have a responsibility here in Kentucky and across our country to make sure that we have an across the board energy strategy,” Cameron said. “I’m not going to sacrifice coal and natural gas at the altar of the Democratic Party, or Joe Biden or Andy Beshear.”?

On the other hand, Beshear has acknowledged the existence of climate change — though infrequently — during his campaign and his time in office. He specifically mentioned the issue during an April press conference announcing federal funding to rebuild housing after the 2021 tornado outbreak in Western Kentucky.?

“I believe in climate change. It’s out there, and it’s real. And what it means is that we need to be better prepared in multiple different areas of our lives in ways that we didn’t have to before,” Beshear said at that time.?

He also touts his endorsements in the coal industry including by the United Mine Workers of America, even though Kentucky’s last unionized coal mine closed in 2015.

For Chasity Chappell, an EMS worker who survived the EF-4 tornado that came through her home of Dawson Springs in Dec. 2021, the reasoning behind both of the candidates’ support for coal is simple.?

“They need the votes,” said Chappell, who supports retaining coal-fired power and Beshear in his reelection because of his handling of natural disasters including tornadoes.?

Chappell believes it’s possible climate change played a role in the devastating tornado that came through her small Hopkins County community in the Western Kentucky coalfield, but she isn’t convinced that greenhouse gas emissions are entirely causing it. “You can’t control where a tornado is going to go,” Chappell said. “You can’t control what Mother Nature is going to do.”?

Edelen, the former statewide Democratic official and renewable energy developer, applauds how Beshear has handled the “climate emergencies” that have impacted the state in recent years. But he considers Beshear’s decision to largely not mention climate change during his first term in office as missing “a historic opportunity to begin the conversation about climate change.”?

“We’re going to see more flooding, we’re going to see rougher weather, we’re going to be dealing with the impacts of a changing climate. And to not ready the public, to not ready our communities, I think, is something that could be judged harshly by history,” Edelen said.?

Tom Morris, the political committee chair of the environmental advocacy group Sierra Club’s Kentucky Chapter, said he was “mystified” when the Kentucky Energy and Environment Cabinet earlier this year didn’t apply for federal funds to create a plan to mitigate greenhouse gas emissions.?

Such funds would have opened up potentially billions of dollars worth of funding to combat climate change, which coal-reliant states such as Wyoming and West Virginia are taking advantage of. Beshear at the time said such planning was better left to Kentucky’s largest cities.

Morris speculates that Beshear understands the issue of climate change but that either Beshear or his advisors believe the issue to be too “politically risky” to bring up. The environmental advocacy group decided to oppose Cameron’s candidacy instead of endorsing Beshear.?

“I just feel like that you don’t always get the candidates you want,” Morris said.?

State Sen. Whitney Westerfield, R-Fruit Hill, supports Cameron and believes he and his running mate state Sen. Robby Mills will do the best job of looking out for coalfield communities. Mills, R-Henderson, was the primary sponsor of legislation passed this year that makes it harder for utilities to retire fossil-fuel fired power plants.

“I feel confident that if other market forces at the national or international level forced our hand that I think Robby would best look out for the interests of coal communities to make sure they were impacted adversely as little as possible,” Westerfield said.?

The Biden administration is moving forward with proposed regulations seeking to combat greenhouse gas emissions, including a proposed rule from the U.S. Environmental Protection Agency that would require fossil-fuel fired power plants to capture or cut nearly all carbon dioxide emissions by 2028 or be forced to retire.?

When asked about calls from the United Nations to rapidly cut greenhouse gas emissions, Westerfield said “Kentucky needs to look out for Kentucky first.”?

“I’m not paying attention to what the United Nations has said we ought to do environmentally. I’m just thinking about my own goals. I think it would be nice if one day, maybe in my lifetime, hopefully in my children’s lifetime — we can be energy independent, and we can exist on renewable energy, from whatever source,” he said.

“You can’t just turn the ship around on a dime,” Westerfield said, speaking to his concern about a transitioning energy economy. “How do you get from here to there without just flipping the switch? How do the people who are mining coal today — how can we guarantee that they’re going to have an opportunity for a job tomorrow?”

Not living in the past?

Constant on the mind of Felker, the Webster County magistrate and former coal miner, is how to help his community make it to a future beyond reliance on coal.?

Sitting in his living room in Providence next to a picture of his two grandchildren, he picks up an issue of the Sebree Banner and points out an article: Webster County had received about $326,000 in federal funding for workforce training.?

Felker is more than willing to go after the massive federal funding now available to help coalfield communities make an economic transition. The money comes through bills pushed by the Biden administration, such as the Bipartisan Infrastructure Law, which is providing the money for the local workforce training.

“If we don’t get it, somebody else is,” he said. “We don’t always want to have our hand out. We want to be able to fund ourselves a lot, and I agree with that philosophy. But there’s sometimes where we’re going to have to.”?

Felker welcomes solar power into his county but worries the job creation from it will be just a temporary boost during construction. Renewable energy advocates, including Edelen, acknowledge the long-term job creation of renewable energy won’t completely replace the jobs created by coal in the 20th century, though they argue it can play a role in diversifying the state’s future economy.?

With the loss of coal production in Webster County, Felker and other officials had to make adjustments to pay for government services formerly funded by coal severance taxes from the state. He also welcomed efforts to reuse old coal mining assets, turning another former Dotiki mine bathhouse into a training center for various trades.?

He gets up from his recliner to find the brass replica of a safety lamp that his coal company gave him when he retired. Back in the day when coal miners went underground, they would pack a safety lamp as a way to measure oxygen levels. When the flame light went out, that meant the oxygen levels were low and a miner had to get to safety.?

But he doesn’t tinker much with the replica, representing decades of work in coal mines, since he retired.

“It’s not something you pick up and pedal with it everyday. One reason: you don’t need to live in the past. You need to go for the future, and who knows what the future is?” Felker said. “I may not find that out in my lifetime, but I know what I did. And I know what’s working right now. And that’s all I got to go on.”?

The second of two workers who were trapped inside a collapsed coal preparation plant in Martin County has died.?

Kentucky Gov. Andy Beshear in a Friday afternoon post on the social media platform X confirmed the death. The Lexington Herald-Leader newspaper had identified the second worker as 57-year-old Alvin Nees, who had been missing after the coal preparation plant at the former Pontiki coal mine collapsed Tuesday.?

“This is a heartbreaking situation and I hope everyone will join Britainy and me in praying for the families of these two workers and this entire community,” Beshear said in his post.?

The first worker, ?identified by the Lexington Herald-Leader as Billy Ray “Bo” Daniels, had died earlier this week after an attempt to free him by surgically amputating his leg had failed.?

West Virginia-based Lexington Coal Co., LLC, owned the collapsed structure and had been given a state permit years ago to reclaim the former coal mine site, which included tearing down the mine’s coal preparation plant.?

The company is led by Jeremy Hoops, the son of Jefferey Hoops, CEO of a bankrupt coal company, Blackjewel, that gained notoriety in 2019 when it withheld final paychecks from coal miners who then blocked a coal train for two months. The Harlan County miners were eventually paid by Blackjewel.?

Newly unemployed Blackjewel coal miners blockaded railroad tracks leading to their old mine on August 23, 2019 in Cumberland in Harlan County. The paychecks of more than 300 miners bounced when the company declared bankruptcy. When miners learned the company was shipping out a final load of coal, they blocked the tracks for weeks. They were eventually paid. (Photo by Scott Olson/Getty Images)

The search for a worker missing in the collapse of an idle coal-preparation plant is moving into a new phase as rescuers who have been combing through the wreckage now plan to use heavy equipment to remove debris, emergency officials said Thursday.

One worker, pinned under a metal beam, died Wednesday after being found by rescuers. On Thursday, the Lexington Herald-Leader reported that Paula Daniels, the wife of Billy “Bo” Daniels, confirmed he was the man who died.

She told the newspaper that with his consent one of his legs had been surgically amputated in an attempt to free him.?

The company that owns the collapsed structure in Martin County ?is headed by Jeremy Hoops, whose father Jeffery Hoops gained notoriety in 2019 when bankrupt coal company, Blackjewel, withheld final paychecks from employees who then blocked a coal train for two months. The elder Hoops was Blackjewel’s CEO and president.

Records with the West Virginia secretary of state identify Jeremy Hoops as manager of Lexington Coal Co., LLC based in Milton, West Virginia.

The company was issued a mining permit by the Kentucky Department for Natural Resources on Dec. 4, 2018 for the 16.5-acre site that includes the Pontiki coal preparation plant, which collapsed Tuesday evening on two workers reportedly employed by a company that is dismantling it. Local officials have identified both of them as Pike County residents.

Demolition of the structure is part of the state-permitted reclamation plan for the site.

Earlier Thursday, Jeremy Slinker, Kentucky Emergency Management director, told media that the rescue operation is moving into a new phase by removing debris in hopes of finding the still missing worker. Emergency management officials and rescuers from all over Kentucky have searched the unstable debris, using cameras, listening devices and dogs.

Slinker said rescuers had searched all the spaces and voids in the rubble and now were making arrangements for moving in heavy equipment to remove the wreckage. The briefing was posted by The Mountain Citizen newspaper on its Facebook page.?

Martin County Sheriff John Kirk in an exclusive interview with The Mountain Citizen on Wednesday praised the rescuers for braving “a very dangerous situation.” He said search crews have “crawled beneath tons and tons of steel and concrete” that has been “snapping and popping.”

Kirk said the man who died was found alive. He died as workers tried to extricate him from beneath a beam, Kirk said. Because there’s no cell service at the site, the victim was unable to speak to his wife, Kirk said, but they were able to exchange some final words with each other.

The Lantern phoned a Lexington Coal Co. number in West Virginia Thursday afternoon; the voicemail box was full.?

Blackjewel’s Harlan County miners, who gained national fame, eventually were paid when the company agreed to pay about 1,100 workers some $5.1 million in unpaid wages.

The bankruptcy of Blackjewel and its parent company, Revelation Energy, was the subject of an investigation by Mountain State Spotlight and ProPublica into how bankruptcy laws allow coal companies to escape environmental and other obligations.

A coal train in Eastern Kentucky's Harlan County. (Photo by Scott Olson/Getty Images)

Kentucky Gov. Andy Beshear declared a state of emergency in Martin County Wednesday morning after an idle coal preparation plant collapsed on two people who had been working inside, killing at least one of them.??

A Kentucky Emergency Management release Wednesday identified the collapsed building as the Martin Mine Prep Plant near Middlefork Wolfe Creek Road.

The Mountain Citizen had reported the search and rescue teams were searching for two men trapped inside the idle Excel/Pontiki Coal Preparation Plant that had collapsed Tuesday afternoon. The men were employees of a company that is dismantling the structure, the Inez-based newspaper reported. The prep plant is near the community of Pilgrim in southeastern Kentucky.

Beshear in a post on the social media platform X said at least one of the trapped workers inside the collapsed plant had died.

“Please pray for the family and loved ones of this individual,” Beshear said on social media.

The Mountain Citizen reported first responders came as far as Pikeville after the county sheriff made requests for aid. First responders had made contact with one of the men last night.

The Excel/Pontiki Coal Preparation Plant is at the site of the former Pontiki coal mine, which Alliance Resource Partners closed in 2013 due to weak market conditions for new coal sales at the time.?

Alliance sold sold the facility to Revelation Energy, LLC in 2014.

Kentucky Energy and Environment Cabinet Spokesperson John Mura in a statement Wednesday said the West Virginia-based Lexington Coal Company, which has a permit for the former mine site, was in charge of reclaiming it including the demolition of the Pontiki preparation plant.

Kentucky Education and Labor Cabinet spokesperson Jill Midkiff in a statement said the Kentucky Division of Occupational Safety and Health Compliance has an investigation open into Lexington Coal Company and the workplace death, which the company had contracted Skeens Enterprises LLC for the demolition operations.

Midkiff in her statement said?a compliance officer is at the mine site collaborating with first responders and that an ongoing investigation into the death could take up to six months.

This story has been updated.

Chase Smith (foreground) and Quincy Robinson canvass in a West Louisville neighborhood for Kentuckians for the Commonwealth. (Kentucky Lantern photo by Liam Niemeyer)

On a recent August weekend, canvassers walked along a neighborhood street in West Louisville, cars and semi-trucks roaring down the nearby interstate just a few hundred feet away.

Chase Smith with the progressive grassroots organization Kentuckians for the Commonwealth knocked on each door, asking people if they “have a couple of seconds to talk about LG&E.”?

Smith, 25, is referring to Louisville Gas and Electric and Kentucky Utilities (LG&E and KU), Kentucky’s largest utility that provides heating and electricity to millions of Kentuckians in dozens of counties, from Ballard to Harlan counties, including Jefferson County and Louisville.?

Smith wanted to talk to them about the billions of dollars of investments that LG&E and KU is proposing before the state’s utility regulator, but he heard much more straightforward concerns from residents: higher utility bills, extended power outages after storms.?

Smith said utility bills are often the “most noticeable, tangible thing” that people can connect with. That helps lead to the larger discussion about the energy transition that LG&E and KU is taking part in and its ramifications.?

“After they acknowledge the bill, getting them to acknowledge, like, the power plants and that goes to pollution — I feel like they kind of go hand and hand,” Smith said.?

Smith and other canvassers with the progressive advocacy organization have tried over the past several weeks to get the word out about public meetings and a hearing before the Kentucky Public Service Commission. They say the deliberations could lock LG&E and KU ratepayers into decades of dependence on natural gas plants when the utility should invest in emissions-free renewable energy.

Their group is one of several, including pro-coal lobbyists, who have organized ahead of what could be “the most consequential and complicated” case in recent history before the state’s utility regulator. The formal hearing in that case starts on Tuesday at the Kentucky Public Service Commission, which regulates utility rates and utilities’ ability to construct new power plants across the state.?

As electric utilities across the country are making significant moves away from coal-fired power plants to renewable energy and natural gas, LG&E and KU has proposed transitioning away from some of its own coal-fired power and largely replacing it with two natural gas plants and some solar power.?

But whether or not to close some of the utility’s coal-fired power — and whether there should be more investments in renewable energy like solar instead of natural gas — is what environmentalists and the pro-coal advocates are strongly lobbying before the PSC, both through legal filings before the regulator and in public engagement on social media and in the streets.?

A coalition of environmental and renewable energy groups, including Kentuckians for the Commonwealth, and a lobbying group for the coal industry, the Kentucky Coal Association, have been pushing for Kentuckians to attend several public meetings the commission has held across the state the past few weeks.

“ARE YOU TIRED OF SKY-HIGH ELECTRIC BILLS AND WORRYING ABOUT WHETHER THE ELECTRIC GRID WILL HOLD UP DURING THE NEXT COLD SNAP OR HOT SPELL?” the coal association said in a social media post in late July, urging readers to let the commission know about “THE FAILED PROMISES OF THE BIG GREEN MONEY MACHINE!”

The executive director of the Kentucky Coal Association did not respond to a request for an interview about their advocacy ahead of the Tuesday commission hearing.?

Smith and others canvassing that day with Kentuckians for the Commonwealth see the building of proposed natural gas plants as costly investments that still will emit tons of heat-trapping greenhouse gasses that contribute to human-driven climate change.

The debate comes at a time when the leader of the United Nations, citing research from climate experts, is calling for rich countries to end all use of fossil fuels including natural gas and coal for power generation by 2035 to limit the increasing impacts of climate change.?

The Biden administration is also proposing federal regulations that would require utilities that run coal-fired or natural gas plants to capture all carbon dioxide emissions from those plants by 2038 or retire them.

?“Whatever plans that Kentucky has towards sustainability goals will not be met if we install these new gas plants,” said Madison Johnson, one of the canvassers. “The timelines just don’t add up.”

A statutory roadblock to what LG&E and KU wants

There are several aspects to what LG&E and KU is proposing before the Kentucky Public Service Commission, and it extends well beyond natural plants and retiring coal-fire power.?

One of the two proposed natural gas plants would be built at the sites of existing coal-fired power plants in Jefferson County and Mercer County, the total costs for the two plants set at more than $1.3 billion. Each plant would generate 621 megawatts (MW) of power supply.?

At the same time, the utility is eyeing shutting down three of its coal-fired units for economical reasons: the increasing costs of maintaining one of the coal-fired power plant units and the costs of installing technology on two units to meet proposed federal emission regulations.?

The retirements would still leave most of LG&E and KU’s coal-fired power on the grid without retirement dates. LG&E and KU also want to build a solar installation in Mercer County, buy another solar installation being built by the Florida-based solar developer BrightNight and build an electricity battery storage facility in Mercer County. The utility would also enter into multiple agreements to purchase power from solar installations.?

In a statement at the time of filing its application before the commission last year, utility president John Crockett said many of the utility’s coal-fired power plant units were “reaching the end of their economic life” and “no longer cost-effective.”?

“The least-cost solution to reliably and affordably meet our customers’ energy demands now, and into the future, is to further diversify our generation fleet and offer our customers more programs to help them save energy and money,” Crockett said in his December 2022 statement.?

The utility said in August that retiring its power generation in favor of an all-renewable supply would cost about $2 billion more, and that the natural gas plants would produce 65% less carbon dioxide emissions compared to the coal-fired power slated for retirement.?

Climate scientists view natural gas as a cleaner energy source compared to coal, producing about half the carbon dioxide when burned. But they also worry the increasing adoption and emissions of the fuel could lock in worsening effects of climate change in the future. The production of natural gas produces methane, a greenhouse gas much more potent at warming the atmosphere than carbon dioxide, although it dissipates faster.

But a wrinkle in the utility’s plans came about in this year’s legislative session when the GOP-dominated Kentucky General Assembly passed Senate Bill 4, which creates a series of prerequisites related to electricity reliability that the state’s utility regulator has to check off before approving a utility’s request to retire fossil fuel-fired power generation.?

The law, primarily sponsored by Sen. Robby Mills, R-Henderson, the running mate of Republican candidate for governor Daniel Cameron, was driven foremost by concerns from lawmakers about the reliability of electricity with the retiring of coal-fired power plants across the country.?

Officials with PJM Interconnection, one of the country’s largest regional grid operators that serves part of Eastern Kentucky, have expressed concerns before lawmakers that an increasing demand for power coupled with retiring coal and natural gas plants could create a power supply crunch in the next decade.

Studies from experts in renewable energy have shown that renewable energy such as wind and solar can be just as reliable as fossil fuels due to technological advances. That’s even with those energy sources being “intermittent” or producing energy for only a part of the day, such as when the sun is shining.?

In filing its application in this case, LG&E and KU is testing the parameters of SB 4 — something that the utility strongly opposed when it was legislation — before the commission in arguing that replacing some of its coal-fired power largely with natural gas plants won’t hurt electricity reliability.?

Kentuckians voice comments and concerns ahead of hearing

Ahead of the Tuesday hearing, public commentary has poured in from ratepayers and interested parties across the state, both in written comments and at in-person meetings that the commission held in Harlan County, Hopkins County, Louisville and Lexington.?

Comments came from local and state elected officials such as judge-executives, several lawmakers, including Kentucky Senate President Robert Stivers, and Kentuckians from communities small and large.?

Jeff Doss of Harlan wrote that he was against the retirement of the coal-fired power units because coal is a “proven cost-effective way to provide power” in the state. Joe Winkler of Daviess County wrote that he opposed building the natural gas plants in part because of worries that the plants could become “stranded assets.”

At the public meeting in Louisville, dozens of Kentuckians asked the commission to consider impacts on climate change that building new natural gas plants could create.?

“We should have pivoted years ago to clean energy sources that are already deemed as reliable as fossil fuels,” said Deborah Potts, a Louisville resident at the meeting. “That’s without considering the ravaging costs climate change is having on our state, as evidenced by violent storms and flooding.”

At the public meeting in Western Kentucky, several spoke in favor of coal-fired power, including Union County Judge-Executive Adam O’Nan. Union County has been the largest coal-producing county in the state as overall coal production has declined in recent years.?

“I believe we should utilize all sources of energy and continue research into improvements that will enhance our lives. But let’s not forget the best energy source is always the reliable energy source,” O’Nan said.?

Miners have suffered more exposure to silica dust as more rock must be removed to reach dwindling coal seams. (Getty Images)

The U.S. Mine Safety and Health Administration is hosting a public comment hearing in Beckley on Thursday on a proposed rule that could strengthen silica exposure standards — one of the leading causes of black lung — for coal miners.

The proposed rule would, for the first time, implement a separate exposure limit for silica dust specifically, cut the maximum exposure limit for silica dust to 50 micrograms per cubic meter for a full-shift exposure and create an “action level” for when exposure comes at 25 micrograms per cubic meter for a full shift.

Advocates for those living with pneumoconiosis, commonly referred to as black lung, and the families of workers who have died from it, however, hold concerns about the implementation and enforcement of these standards in the proposed rule.

Sam Petsonk, a West Virginia-based attorney who has represented “many hundreds” of coal miners in claims seeking black lung benefits, said the current state of enforcement mechanisms and testing standards, among other policies in the proposed rule, has turned it into “utter swiss cheese.”

“The administration and leadership [at MSHA] has all the right priorities and there is something deeply commendable in proposing this rule, but the bureaucracy in MSHA has written a rule, a proposed rule, that undermines that,” Petsonk said. “I believe the agency means what it says, that the leadership does intend to do what they’ve committed in establishing a silica exposure limit that will actually be protected and enforceable.”

That’s the point of the public comment, Petsonk continued, so people will have the opportunity to lay out potential problems with the proposed rule and have MSHA respond to those concerns.

For Petsonk and other advocates, weaknesses of the proposed rule boil down to three main concerns: No regular sampling for silica levels, no penalties for mining operations found not in compliance with the rule and no mandatory or enforceable protections for coal miners working in mines with elevated exposure levels.

If mines were found to be in violation of the proposed rule, there is currently no monetary penalty or other action to incentivize operators to correct the situation or to protect workers from being forced to continue working in dangerous conditions. Basically, Petsonk said, operators would be warned about the violation.

“It’s like saying if we catch you speeding we’ll ask you not to speed anymore and send you on your way and see how it works,” Petsonk said, “MSHA has the authority to issue citations and withdraw orders mandating that miners be removed from a violated area of the mine. I’d like to see that in the final rule — I’d like to see proposed monetary penalties and the withdrawal of miners when the dust is too high, too dangerous.”

In its current state, due to the proposed sampling requirements, Petsonk said it’d be incredibly difficult to find violations when they occur even if there was an enforcement mechanism.

The rule would not impose routine sampling for silica dust outside of what is currently performed by MSHA. Instead, it requires one-time sampling for all operational coal mines within 180 days of the rule going into effect. After that six month period, there are no guidelines for new mining operations that start and operators at active mines would have to opt in to periodic sampling for silica.

“MSHA has a limited presence in mines, and while they already sample for silica, clearly the quarterly sampling has not been efficient,” Petsonk said. “If MSHA’s sampling system was adequate to capture silica exposure, it would have done so already and we wouldn’t see the cases we see because they’ve been sampling for that over the last several decades.”

Self-reporting by coal mining operators is a longstanding issue and criticism within the mining industry, where safety violations can be easy to hide due to lack of oversight and enforcement and where the consequences can too often mean death or serious injury for workers.

Quenton King, a federal legislative specialist with nonprofit advocacy group Appalachian Voices, said this is why it’s important to have coal miners with first-hand experience appear at Thursday’s public comment and share what they’ve witnessed.

“You can talk all day about how important it is to have real oversight, how little coal mining companies can be trusted to test their air and whatnot. We hear countless stories of foremen hiding the testing results or rigging testing to suit them,” King said. “We’re really relying on the people who are inside, who got black lung, to say, ‘you can make this rule but without the power to enforce it, we can’t trust operators to follow it.’”

According to an advisory from the Centers of Disease Control and Prevention in 2018, it’s estimated that 20% of coal miners in Central Appalachia are suffering from black lung — the highest rate detected in more than 25 years. One in 20 of the region’s coal miners are living with the most severe form of the condition.

In recent years, there has been an uptick in the number of miners diagnosed with black lung, and they’re developing it at younger ages than ever before. This is due to the coal seams mined today, unlike in the past when it was abundant and openly accessible, being shielded by layers of silica-bearing sandstone.

“We’re seeing people in their 30s and 40s with X-rays we used to see in their 60s and 70s. People are becoming fully disabled earlier and earlier in their careers,” King said. “Black lung — it’s deadly. It’s incurable. At its worst stages it drastically harms and inhibits your way of life.”

The public comment meeting on Thursday in Beckley, held in room B102 of the National Mine Health and Safety Academy at 9 a.m., is the second of three to be held by MSHA. The first was held in Arlington last Thursday and the next will be in Denver on August 21.

Initially, there was no meeting scheduled for the proposed rule in Central Appalachia despite the high rates and impact of silica dust here. Days after the rule was published and the public comment period set, however, MSHA added the Beckley meeting in response to advocates’ outcries.

Those who wish to attend the meeting can do so and submit testimony either virtually or in person. It is encouraged, but not required, to register for the meeting here: https://www.msha.gov/form/silica-hearings-registration.

West Virginia Watch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: [email protected]. Follow West Virginia Watch on Facebook and Twitter.

An 800 megawatt solar installation is planned for the reclaimed Starfire mine site in Knott County. (Kentucky Lantern photo by Liam Niemeyer)

KNOTT COUNTY — It was a little over five years ago when Philip Marsh looked over the thousands of acres of reclaimed strip mine land he owned near the Knott County line and wouldn’t have a clue what would come of it.

The Eastern Kentucky mountaintops that Marsh owned, now pastures after decades of coal mining, used to be the Starfire mine that employed nearly 300 people and took out of the mountains more than 3 million tons of coal a year at its peak, according to Marsh.

“They’ve been mining coal up here since the late ‘60s, early ‘70s. So it’s hard to find somebody that doesn’t know about Starfire in Knott, Perry and Breathitt counties,” he said.

Marsh, who used to work for the coal company that owned the Starfire mine, and his business partner built a small lodge and campground for guided elk hunts across the land. But another opportunity came along in 2020 that kindled an idea to help return the land to its energy-producing roots.

Kentucky officials and the Florida-based solar developer BrightNight unveiled that opportunity Tuesday as the company announced plans to invest about $1 billion to build a sprawling solar installation generating up to 800 megawatts (MW) – the electricity equivalent of powering more than 500,000 homes. It would be the largest solar installation planned in the state so far in terms of energy generation.

For Marsh, the massive project could benefit Kentuckians from nearby coalfield communities with tax revenue and jobs.

“It’s a good repurposing of this ground,” Marsh said. “What will hopefully, ultimately happen here — it’s the best that could happen to these three counties.”

BrightNight CEO Martin Hermann told the crowd gathered at the former Starfire mine that the finished multi-phase project would generate about $400 million in tax revenue to local and state governments over the course of the solar project’s 40-year lifespan. The goal is to finish construction on the leased land by 2030, he said.

BrightNight also has other solar installations in development in West Kentucky, specifically McCracken and Ballard counties, along with other locations across the country. The company is also developing a 120 MW project in Washington and Marion counties to sell to Kentucky’s largest utility.

Electric SUV manufacturer Rivian plans to buy 100 MW of energy from the project as renewable energy credits that can offset the carbon emissions of its drivers. The conservation organization The Nature Conservancy plans to buy 2.5 MW for renewable energy credits to offset the carbon emissions of their offices.

Nature Conservancy CEO Jennifer Morris said the region “has been a powerhouse” of energy production, referencing its coal mining present and past. Using reclaimed mine land for solar projects, she said, can save more productive land for other purposes.

“This is the future: continuing that large tradition, that long tradition of energy production, but doing it in a way that can be more sustainable, both for our country, our world and certainly for the nature in this incredible place,” Morris said.

The plans are in place. What now?

It could be at least a couple of years before solar panels begin to enter the ground at the former Starfire mine, in part due to bureaucratic hurdles that planned solar installations across the country are facing.

Solar companies wanting to connect to a regional electric grid have to apply to do so through what’s known as an “interconnection queue.” The electric grid operator has to then study the costs it takes to connect such projects to the grid.

Getting permission from regional grid operators can take years, which adds to the cost of solar projects.

Hermann, the Brightnight CEO, said the company has done its own study of what transmission costs will be for their Eastern Kentucky project while it waits on feedback from the regional grid operator. The company submitted a request for the first phase of the project in 2021 with the hope to hear back on that request by 2025.

“There is just no other way than to wait until you get the study results,” Hermann said. “There has just been a glut of interconnection requests hitting the power grid.”

BrightNight would also have to get permission from the Kentucky Public Service Commission, the state’s utility regulator, to build the project by applying for a construction certificate through the Electric Generation and Transmission Siting Board.

Once construction starts, Hermann said each phase of the four-phase project is expected to take up to two years to build, creating between 20 to 50 jobs during construction of each phase.

He said an estimated 20 permanent jobs will be created to maintain the project site, which he described as “unfortunately” low compared to the number of temporary construction jobs for the site.

Adam Edelen, a former Kentucky auditor and Democratic candidate for governor, whose renewable energy company helped shepherd forward the BrightNight project, said solar installations ultimately can’t replace all the lost coal mining jobs but will be important to the economy.

“It’s about diversifying the economy and providing a solution suite of opportunities for the folks who, you know, live, love, work and worship here,” Edelen said. “With a recognition that renewable energy is going to be the preferred power source of the 21st century economy, creating those opportunities here is important to magnetizing opportunity for our people.”

Edelen recently touted a deal for car manufacturer Toyota to purchase power from another planned solar installation on a former coal mine site in Martin County to offset emissions.

Several of the speakers at the BrightNight announcement mentioned the upcoming anniversary of deadly, catastrophic floods that hit Eastern Kentucky communities near the planned solar project.

Kentucky Energy and Environment Cabinet Secretary Rebecca Goodman said BrightNight has had “very productive discussions” with the cabinet about how the solar developer could help with the affordability and resiliency of planned cottages at a “higher ground” community under development to replace housing lost to the flood.

“There’s no doubt that the weather events [affecting] Kentucky are still continuing,” Goodman said, referencing a recent record rainfall that caused major flooding in West Kentucky. “I think we’ve seen a pattern that continues to go, and we need to do everything we can to mitigate the effects of these disasters.”

Miners have suffered more exposure to silica dust as more rock must be removed to reach dwindling coal seams. (Getty Images)

Correction: This story previously stated the Mine Safety and Health Administration was not holding a hearing on the new silica dust proposal close to Appalachian coal communities. MSHA announced Thursday it had added a hearing in Beckley, West Virginia on Aug. 10. We regret the error.

Gary Harriston, 69, compares what it feels like to have coal workers’ pneumoconiosis, known commonly as black lung, to running out of air or not being able to “catch my wind.”?

He remembers working as a coal miner decades ago and dashing to a bathhouse to get out of a rain — and knowing. “I started running up there. At the steps when I got into the bathhouse, I’m standing there, can’t breathe. And I’m thinking, ‘Oh, you’re getting ready to die,’” Harriston said. “That’s when I really realized that I had it. It was kind of a scary situation.”

In recent decades, a surge of black lung — and a surge in more severe cases of the disease — has struck Appalachian coal miners, including in Kentucky, with diagnoses coming decades earlier in life than before.?

A study last year confirmed that miners’ exposure to silica dust was driving the recent epidemic of severe black lung.?

As modern mining machines became more efficient at chipping into rock to reach coal seams, black lung experts have said, coal miners were exposed to higher rates of crystalline silica dust created by cutting through quartz, along with exposure to coal dust that has long been present in mines.? Breathing excessive dust leads to pneumoconiosis that cripples lung capacity and leads to death. More accessible coal seams are gone, Harriston said, which means more rock must be cut to reach the coal that’s left, creating more dust for miners to breathe.

Harriston, the National Black Lung Association president who lives in Beckley, West Virginia, believes a long-awaited regulation will help contain the recent epidemic of black lung and protect current and future miners. But the proposed rule is by no means perfect, he and others say.??

The federal Mine Safety and Health Administration (MSHA) previously regulated only exposure to overall levels of dust during a coal miner’s work shift, as measured by dust monitors worn by miners.?

A proposed rule published July 13 would create a separate exposure limit for silica dust, lower the maximum exposure limit for silica dust and create an “action level” of exposure lower than the limit that would require a coal mine operator to take “periodic” dust samples.?

Coal companies still responsible for dust monitoring

A major problem remains with the proposal, according to advocates: MSHA largely still relies on dust sampling data submitted by the companies themselves.?

Coal companies across Appalachia have a history of cheating on dust sampling, with a couple Kentucky coal companies pleading guilty to federal charges in recent years for doing so.?

Willie Dodson, the Central Appalachian field coordinator for the environmental nonprofit Appalachian Voices, said he’s heard anecdotes from miners in Kentucky, West Virginia and Virginia about not trusting company-submitted dust samples. One example of concerns include samples being taken only in less dusty parts of a mine.?

“A lot of the samples are taken by a monitor that a worker wears, and so which worker is wearing it and what part of the operation is that worker working in has a huge influence on, ‘Is it really reflecting the conditions that most of the workers are in?’” Dodson said.?

Dodson said common stories from miners also include operators temporarily changing the working conditions of mines on days when they know federal inspectors are coming, including improving ventilation and hanging curtains to contain dust.?

The president of the Kentucky Coal Association, representing mining companies in the state, did not immediately respond to an interview request about the proposed rule.?

Dodson said it would be better to have MSHA inspectors conduct more of the sampling themselves, but the federal agency has struggled with maintaining funding in recent years. An article by Dodson published in April detailed an analysis that showed funding for MSHA had fallen since 2013 along with the number of coal mine inspectors employed by the agency.?

“I mean, if MSHA was just rolling in dough and not investing it more in mine inspectors, then I might be more upset,” Dodson said. “I’m upset at Congress for not giving MSHA the money they need to protect coal miners.”

With the proposal now open for public comment, MSHA plans to hold three public hearings on the new regulation in Arlington, Virginia, on Aug. 2, Beckley, West Virginia on Aug. 10 and Denver, Colorado, on Aug. 21.?

MSHA announced the addition of a hearing in Beckley, West Virginia following criticism by mine safety advocates that the two other hearings were not particularly close to Appalachian coal communities.

Courtney Rhoades, the black lung organizer for the Appalachian Citizens’ Law Center in Whitesburg, said advocates are “going to make sure that Central Appalachia is heard” in the months ahead.

“The coal mines continue to be plagued by this epidemic. But this silica rule is the first step to hopefully changing that,” Rhoades said.

The EPA first created rules regulating coal ash impoundments in 2015 after a dike collapsed flooding embankments and the Emory River near Harriman, Tennessee. Coal ash slurry was contained in a pond, above. (Greenpeace photo)

More ponds, landfills and impoundments in Kentucky containing the toxic byproducts of burning coal for electricity could come under federal oversight for water monitoring and cleanup under a proposal by the U.S. Environmental Protection Agency.?

The EPA is seeking comment on the proposal from stakeholders and the public in an online hearing Wednesday and is accepting public comments through Monday, July 17.?

Federal officials say the proposal, first announced in May, could hold accountable power producers that have older or “legacy” coal ash impoundments near power plants to ensure monitoring and cleanup of those sites.?

An industry group representing power producers opposes the proposal, saying it’s part of an “onslaught” of new regulations, while Kentucky’s largest utility has panned it as “unnecessary and costly.”?

Coal ash is created by burning coal and contains a slew of contaminants such as arsenic, cadmium and mercury that can potentially pollute groundwater, drinking water and the air if not properly managed. These coal ash landfills and ponds are often located near power plants where the coal was burned.

The EPA first created rules in 2015 regulating coal ash impoundments following an environmental disaster in Kingston, Tennessee, when a dike for a coal ash pond collapsed, flooding embankments and eventually a nearby river. Workers who cleaned up the coal ash without protection fell sick, with more than 50 dying.?

The new federal proposal would incorporate “legacy” coal ash sites not covered by the 2015 rule that are more likely to be unmonitored and “unlined,” meaning there’s no protective layer to prevent the leakage of coal ash into groundwater.?

Lane Boldman, the executive director for the environmental advocacy group Kentucky Conservation Committee, said water often gets mixed into coal ash ponds, allowing toxins to? more easily seep into the ground if the ponds are unlined.?

“The longer that we’ve accumulated coal ash, the more the hazards have become more apparent,” Boldman said. “These structures that were put in place to contain the waste just weren’t sufficient.”?

An analysis of federal documents and data by the environmental legal group Earthjustice shows Kentucky has more than two dozen federally unregulated coal ash landfills and ponds throughout the state.?

While the proposal would begin federal regulation of hundreds more coal ash sites, an Earthjustice spokesperson said some sites would still be exempt, including “inactive” coal ash ponds at former coal-fired power plants.

Various “probable” owners of the sites, according to Earthjustice, are major utilities, including Louisville Gas and Electric and Kentucky Utilities, East Kentucky Power Cooperative and the Tennessee Valley Authority.?

A spokesperson for LG&E and KU, the state’s largest utility, disputed the number of federally unregulated coal ash sites that Earthjustice asserts it owns.?

The utility spokesperson also said the EPA proposal would “undercut cooperation between states and the federal government” and that it already works with state environmental protection officials to ensure drinking water is protected.?

“The rule would place EPA in the position of second-guessing past decisions by the states on remedial action necessary to protect public health and the environment at these sites,” said Daniel Lowry, an LG&E and KU spokesperson. “There is no evidence to suggest that past regulatory determinations by the states have been inadequate or that these sites pose a significant risk that warrants imposition of the federal regulatory program.”?

The spokesperson said the utility was already in the process of closing its coal ash landfills and ponds according to state regulations, and the new EPA proposal would require “unnecessary and costly” reopening, excavating and “additional construction practices” at the sites.?

Those interested in attending Wednesday’s online hearing on the rule can register through an online portal. Those interested in submitting a comment on the proposal can do so through a separate online portal and clicking the blue “comment” tab.?

Solar cell panels in a photovoltaic power plant. (Photo provided by Toyota)

Japanese car manufacturer Toyota says it plans to purchase 100 megawatts of power from a 200-megawatt solar installation in Martin County being built on a former surface coal mine and brownfield site.??

Toyota in a Wednesday news release stated the multi-billion-dollar company would use the solar power to offset some of its carbon emissions. Toyota plans to make all its operations in North America carbon neutral by 2035. Toyota’s Georgetown operation is the company’s largest vehicle manufacturing plant in the world.?

The solar installation is being constructed by Savion, a subsidiary of the oil and gas company Shell, with the support of a Kentucky-based renewable energy company founded by former Democratic State Auditor Adam Edelen.?

“A blockbuster announcement literally years in the making,” Edelen said on Twitter. “The promise of renewable energy is coming to Appalachian coal country.”

The 2,541-acre solar installation will be constructed on the former Martiki Coal Mine site near the border of West Virginia and Kentucky. Toyota expects the installation to be operational in 2024.?

The solar development has been in the works for years with developers previously stating the project could bring hundreds of temporary jobs to the county and state during construction and a few dozen long-term jobs. In a 2021 filing before the state’s utility regulator, the developers also said the project could raise approximately $9 million in local taxes over the lifetime of the solar installation.?

David Absher, senior manager of environmental sustainability at Toyota Motor North America, in a statement said power purchase agreements such as the one in Martin County can help bring “new opportunities to former coal and energy communities.”?

?“It is important that renewable power is more available to large-scale U.S. energy buyers, and converting brownfields like this offers a path forward for former energy communities to take advantage of the infrastructure they already have with transmission lines while providing clean energy to the grid,” Absher said.?

Power plants that burn fossil fuels would have to significantly curb heat-trapping carbon emissions under new EPA rules being challenged in federal court by Kentucky's Russell Coleman and other Republican attorneys general. (Getty Images)

The Biden administration is taking steps to address a regulatory loophole that public interest groups said allowed at least a half-billion tons of toxic coal ash to go unregulated.

The Environmental Protection Agency published a new draft rule last week that the groups said would extend federal oversight to much of the coal ash disposed at both operating and retired power plants.?

The proposed rule would extend federal monitoring, closure and cleanup requirements to hundreds of previously excluded older landfills, legacy ponds and fill sites. Coal ash is the waste that remains after coal is burned for electricity, and is among the most costly of the long-term legacies from more than a century of burning coal.?

The action comes as part of a settlement between the federal agency and public interest groups, including the Sierra Club. The groups said the proposed rule would force owners to address problems at facilities like the Bull Run Fossil Plant near Oak Ridge, Tennessee, Four Corners Power Plant near Fruitland, New Mexico, and Stanton Energy Center in Orlando, Florida. Many of the sites are in low-income communities and communities of color. The action also comes after Inside Climate News, WMFE in Orlando and NPR brought national attention to the federal loophole in late 2021 and early 2022.

“This is a really big deal,” said Lisa Evans, senior counsel at Earthjustice, a nonprofit organization litigating environmental issues, which represented the public interest groups. “For far too long a large portion of toxic coal ash around the U.S. was left leaching into drinking water supplies without any requirement it be cleaned up. The EPA is taking significant steps to address a massive loophole that let many coal plant owners off the hook.”

Indiana, Ohio, Illinois and Pennsylvania rank as the states with the most power plants with at least one regulated or unregulated coal ash dump, with 24, 23, 23 and 21 dumps each, followed by Kentucky, with 20, according to Earthjustice mapping.

The Obama administration’s EPA in 2015 adopted the first national regulations on coal ash. The regulations applied to existing and new sites but exempted coal ash at power plants that had already stopped generating electricity and landfills that had already closed. Those rules required monitoring and cleanup, but only at dump sites that were covered by the new regulations. Earthjustice has since identified 566 landfills and ponds at 242 coal plants in 40 states that were excluded from the regulations, based on an analysis of industry data provided to the EPA.

For instance, at the Stanton Energy Center in Orlando, dumping at a 90-acre coal ash landfill stopped just 52 days before the regulations took effect. The maneuver exempted the landfill from the new requirements for environmental monitoring and, if contamination were found, a requirement to take corrective actions. Those standards only applied to new dumping areas next to the closed landfill at Stanton, which is operated by the Orlando Utilities Commission

“OUC has always managed coal ash responsibly and transparently, in accordance with regulations set by the U.S. Environmental Protection Agency’s (EPA) Coal Combustion Residuals Rule and the Florida Department of Environmental Protection’s Power Plant Siting Act,” said Michelle Lynch, a spokeswoman. “OUC is and will remain committed to our environmental responsibility by working to meet or exceed all local, state and federal regulatory requirements now and in the future. We have always made it a point to do the right thing — and we will continue to do so for our community and environment.”?

Under the new draft rule, the EPA would compel owners, with some exceptions, to monitor and clean up all coal ash at their facilities, rather than trying to regulate each dump individually. The proposed site-wide approach would lead to more effective safeguards, Earthjustice said.

“It’s a step forward, for sure. It’s a more holistic approach to regulate coal ash, and it does close a very important loophole,” said Abel Russ, senior attorney at the Environmental Integrity Project, a nonprofit advocating for more enforcement of environmental laws, and a plaintiff in the lawsuit that prompted the new EPA action on coal ash. “There are ways we still think it could be stronger. But in particular, I really appreciate that the EPA is going to be requiring the owners and operators to provide information about their sites in a way that the public will be able to access.”??

Russ said the proposed rule would continue to be self-implementing and would be difficult to enforce. The public interest groups also said the draft rule fails to extend regulations to all coal ash dump sites at former plants. For instance, ponds that did not have water in them in 2015 or later would be excluded, and landfills at former plants that do not have a legacy pond also would be excluded. Earthjustice said up to 58 landfills could be excluded under this exemption. The proposed rule also does not address coal ash that was used as construction fill at playgrounds, schools and throughout neighborhoods, Earthjustice said.

“As the EPA works to finalize these reforms by next year there are a few things they need to do,” said Evans of Earthjustice, which sued the EPA in 2022. Among other plaintiffs were the Indiana? branch of the National Association for the Advancement of Colored People and Hoosier Environmental Council.

The EPA first created rules regulating coal ash impoundments in 2015 after a dike collapsed flooding embankments and the Emory River near Harriman, Tennessee. Coal ash slurry was contained in a pond, above. (Greenpeace photo)

After 10 years of litigation, workers who were forced to work without personal protection to clean up the Tennessee Valley Authority’s massive coal ash spill at its Kingston Fossil Plant in 2008 have reached a settlement in the case.

TVA’s disaster clean-up contractor Jacobs Engineering posted a one-line notice Monday on its website affirming that the global corporation has reached a monetary settlement with the more than 200 workers who filed suit over their treatment.

No notice of settlement has yet been filed in U.S. District Court, so the details of the deal remain unclear. Workers have rejected at least three prior settlement offers including an offer in late 2021 by Jacobs of $35 million.

What’s also unclear is whether Jacobs will follow through with a 2015 demand that TVA cover its legal bills and settlement costs. Jacobs and TVA brokered a deal just months after the Dec. 22, 2008, spill, in which TVA agreed to indemnify the contractor in any claims of poisoning by coal ash.

Jacobs invoked that indemnity agreement after Kingston disaster workers began filing lawsuits alleging they had been sickened by the radioactive waste after being forced to work in it without respiratory or skin protection.

More than 50 of those workers have died since the coal ash cleanup operation and more than 150 are sick. A federal jury in 2018 sided with the workers, ruling that Jacobs breached its contract with TVA and its duty to protect those workers. Jacobs has filed numerous appeals since then but lost each one.

Only one appeal remained — a question of law posed to the Tennessee Supreme Court last year. That question had not yet been answered when, earlier this year, Gov. Bill Lee appointed Dwight Tarwater, Jacobs’ chief counsel in the Kingston case, to the state Supreme Court to replace retiring Justice Sharon Lee. Soon after Lee tapped Tarwater for the post, attorneys on both sides of the Kingston case filed a stay with the state Supreme Court — the first clue a settlement might be in the works.

The death toll among Kingston disaster workers continues to rise. Last week, Kingston disaster worker Tommy Johnson died. He had collapsed three weeks earlier after attending a memorial service for his fellow deceased colleagues. His funeral is set for Friday.

Testimony in the 2018 federal trial revealed that managers with both Jacobs and TVA repeatedly told workers coal ash was safe enough to eat and refused to provide them protective gear, including masks. When workers began pressing for respiratory protection, Jacobs’ safety manager Tom Bock ordered masks stored at the disaster site destroyed to prevent workers from wearing them, testimony showed.

Coal ash contains 26 cancer-causing toxins, heavy metals and radioactive material, including radium, lithium, selenium, molybdenum, arsenic, lead, cobalt and uranium. Initial testing in January 2009 by an independent firm showed the Kingston coal ash was six to eight times more radioactive than surrounding soil.

But training materials provided by both TVA and Jacobs to Kingston disaster workers never mentioned the radiological threat coal ash posed or provided a full list of dangerous ingredients in the waste. Instead, the training materials stated the only ingredients of concern in the ash were arsenic and silica.

Just two months after the spill, the Occupational Safety and Health Administration received a complaint that the Kingston workers were being exposed to radiation via coal ash without proper protective gear. But OSHA did not investigate the complaint.

Instead, OSHA alerted TVA to the complaint and allowed the utility to investigate itself. TVA, in turn, submitted a report to OSHA, falsely claiming workers had been provided protective gear in the first few months of the spill. OSHA took no further action. After workers filed suit, OSHA destroyed the file on the complaint — without explanation and outside its normal records retention policy.

Independent testing conducted in 2020 by Duke University of the Kingston coal ash — the byproduct of burning coal to produce electricity — showed the waste contained radioactive material at levels three to five times higher than reported by TVA to the public, the Environmental Protection Agency and the Tennessee Department of Health.

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: [email protected]. Follow Tennessee Lookout on Facebook and Twitter.

Cutline: A coal-fired power plant in Romeoville, Illinois. The Environmental Protection Agency is proposing a new rule to regulate fossil fuel power plant carbon dioxide. (Photo by Scott Olson/Getty Images)

The Obama administration’s 2015 Clean Power Plan — intended to cut carbon emissions from power plants — was struck down by the U.S. Supreme Court.

The Trump administration’s much-criticized replacement, the Affordable Clean Energy rule, derided as a “tortured series of misreadings” of the U.S. Clean Air Act, was also tossed by a federal court.

But the Biden administration’s Environmental Protection Agency is back at bat with a new proposed rule to regulate fossil fuel power plant carbon dioxide, which is responsible for about a quarter of U.S. greenhouse gas emissions.

EPA says its new rule, released Thursday, is based on “cost-effective and available control technologies,” and will avoid as much as 617 million metric tons of CO2 emissions through 2042, the equivalent of reducing the annual emissions of 137 million passenger vehicles. The agency claims it will also prevent hundreds of premature deaths and hospital visits, thousands of asthma attacks and relieve the burden of environmental justice communities disproportionately afflicted by power plant pollution. In 2022 alone, the electric power sector accounted for about 1.5 billion metric tons of CO2 emissions.

The rule strengthens standards for new fossil-fuel plants, (mostly natural gas) and establishes emissions guidelines for states to follow in limiting carbon pollution from existing fossil fuel plants, which can be coal, gas or oil-fired.

“EPA’s proposal relies on proven, readily available technologies to limit carbon pollution and seizes the momentum already underway in the power sector to move toward a cleaner future,” EPA Administrator Michael Regan said in a statement. “Alongside historic investment taking place across America in clean energy manufacturing and deployment, these proposals will help deliver tremendous benefits to the American people — cutting climate pollution and other harmful pollutants, protecting people’s health and driving American innovation.”

However, some power plant operators warn it could imperil electric reliability by accelerating power plant closures before enough cleaner resources are ready. And some environmentalists say technologies the rule cites — carbon capture and storage and co-firing natural gas plants with clean burning hydrogen — are far from proven at the scale that will be required.

Others say the rule could be improved by setting lower thresholds for applicability (as proposed it only applies to the largest and most frequently used gas plants.

Reliability and sustainability

The Electric Power Supply Association, a trade group that represents competitive power generators, warned that the rule could intensify potential future electric reliability challenges. Indeed, some regulators fear that the increasing pace of power plant retirements, combined with increasing electrification in transportation and other sectors and the difficulty of getting new, primarily renewable resources sited and connected to the grid, could create shortfalls in electric supply in the near future.

“Once again, aspirational policy is getting ahead of operational reality,” EPSA President and CEO Todd Snitchler said in a statement. ”If finalized, these aggressive rules will undoubtedly drive up energy costs and lead to a substantial number of power plant retirements when experts have warned that we are already facing a reliability crisis due to accelerated retirements of dispatchable resources.”

The Edison Electric Institute, which represents investor-owned electric utilities that provide electric service to more than 235 million people in all 50 states, was more measured.

“Just as we do with any rulemaking, we will assess EPA’s proposed new regulations through the lens of whether they align with our priorities and support our ability to provide customers with the reliable clean energy they need at an affordable cost,” Edison CEO Tom Kuhn said. Kuhn said carbon emissions from the power sector are as low as they were in 1984 despite electric use climbing 73% over the past four decades.

Priorities for electric companies in the final rule, expected to go into effect sometime next year, are for compliance deadlines to align with “existing transition plans” and “recognition of the critical role existing and new natural gas generation plays,” Kuhn said. The utility industry also wants “a range of compliance flexibilities” that include hydrogen and carbon capture and storage “when they are commercially available at scale and cost.”

Several environmental and renewable energy industry groups celebrated the proposed rule.

“Power plants have been allowed to pump deadly carbon dioxide pollution into the air we breathe, threatening our communities and our future, with nearly no federal limits – until now. Today’s proposal marks a significant step forward, and we’re pleased to see the Biden administration continue to address climate pollution in a serious way,” said Ben Jealous, executive director of the Sierra Club.

The American Council on Renewable Energy called it “an important step forward” that comes as the threat posed by climate change becomes increasingly severe.

“It is clear that we need a regulatory framework for reducing carbon emissions to complement the helpful incentives in the Inflation Reduction Act if we are to achieve our climate targets,” ACORE said.

‘Putting forward their very best foot’

But can the rule survive another expected legal challenge?

Patrick Morrisey, the Republican attorney general of West Virginia who sued the EPA over the Obama-era Clean Power Plan, was quick to challenge the legitimacy of the new proposed rule.

“Based upon what we currently know about this proposal, it is not going to be upheld, and it just seems designed to scare more coal-fired power plants into retirement — the goal of the Biden administration,” Morrisey said in a statement Thursday. “That tactic is unacceptable, and this rule appears to utterly fly in the face of the rule of law. The U.S. Supreme Court has placed significant limits on what the EPA can do — we plan on ensuring that those limits are upheld, and we expect that we would once again prevail in court against this out-of-control agency.”

Julie McNamara, a deputy policy director at the Union of Concerned Scientists, said the legal issue has never been whether EPA has the authority to regulate carbon emissions but rather how that power is exercised. With the Clean Power Plan, the Supreme Court ruled the agency overreached, finding that it could not direct power plants to shift from fossil fuels to cleaner sources like wind and solar. Rather, it held the EPA could set emissions limits by determining the “best system of emission reduction” for existing sources at that facility, not force a change in generation source.

The new rule, she said, is more narrowly focused and tailored to the confines of the Supreme Court ruling.

“EPA has been incredibly thoughtful about this and are putting forward their very best foot to try to have a defensible rule,” McNamara said. “It’s a certainty these will go to the courts but it’s not a certainty that the courts will take it up.”

McNamara said that when the rule becomes finalized next year, it will be up to states to submit plans for compliance.

“It’s up to the states to say what is the most cost effective and forward looking approach to achieving these emissions reductions,” she said.

Brian Murray, director of Duke University’s Nicholas Institute for Energy, Environment and Sustainability, said the rule builds on the array of clean energy incentives in last year’s Inflation Reduction Act.

“Putting a regulation on top of that means that the regulation itself is more economically achievable because of the subsidies,” he said. “The IRA is doing a lot of the heavy lifting for the reductions that are being sought by the administration.”

Joining with many states’, utilities’ and corporations’ own decarbonization goals, the rule adds a lot of momentum that might be tough to derail.

“You take all these together and everything is walking in the same direction,” Murray said.

Carbon capture questions

Wenonah Hauter, executive director of Food & Water Watch, a nonprofit focused on environmental activism, called carbon capture “a fossil fuel industry propaganda scheme” that’s wasted billions of dollars and produced “a series of spectacular failures.”

An October report from the Congressional Research Service said the U.S. Department of Energy has funded carbon capture research and development since “at least 1997” and that Congress has provided $9.2 billion since 2010 in annual appropriations for the DOEs’ Fossil Energy and Carbon Management Research, Development, Demonstration, and Deployment program.

The 2021 bipartisan infrastructure law included billions more for carbon capture facilities. Most existing carbon capture projects use the CO2 to enhance oil production in aging oil wells. The first and only U.S. power plant capturing carbon in large quantities was the Petra Nova project in Texas, though carbon capture was suspended in 2020, the report says.

“There is broad agreement that costs for constructing and operating (carbon capture and storage) would need to decrease before the technologies could be widely deployed. In the view of many proponents, greater CCS deployment is fundamental to reduce CO2 emissions,” the report says. “In contrast, some stakeholders do not support CCS as a mitigation option, citing concerns with continued fossil fuel combustion and the uncertainties of long-term underground CO2 storage.”

Andres Restrepo, a senior attorney with the Sierra Club, said the expansion of fossil fuel plants is “incompatible with a livable future” but noted that because of the Supreme Court’s ruling in the West Virginia v. EPA case, blending natural gas with hydrogen for power production and carbon capture “form the basis for the strongest possible standards that the EPA can legally propose.”

The EPA’s own projections show that many more power plants are likely to retire rather than install carbon capture, he added.

“We also believe the standards are likely to help deter some of the expected build-out of new gas plants in the first place,” Restrepo said. “Therefore, these standards are much more likely to reduce climate emissions and improve public health than simply maintaining the status quo.”

A bill that would make it harder for Kentucky’s utility regulator to allow utilities to retire coal plants on the state’s electricity grid became law Friday without Gov. Andy Beshear’s signature.?

Senate Bill 4, primarily sponsored by Sen. Robby Mills, R-Henderson, would create a series of prerequisites on the Kentucky Public Service Commission before it could approve a regulated utility’s request to retire a fossil fuel-fired power plant.?

The Democratic governor did not veto the legislation during the ten day period he had to consider the bill after it passed the Kentucky legislature, instead allowing it to become law without his signature. The Republican-backed bill has an emergency declaration, meaning it goes into effect immediately.?

Republican supermajorities in the legislature pointed to concerns over the reliability of the electric grid as reasoning for SB 4 following rolling blackouts that some utilities implemented amid arctic temperatures last winter. Mills and other Republicans referenced past and planned retirements of coal-fired power plants that they say could hinder electricity reliability in the future.?

During a legislative hearing earlier this year about the rolling blackouts, utility leaders instead pointed to key components of a natural gas pipeline that froze as a cause behind the rolling blackouts.?

According to a recent report from the think tank Institute for Energy Economics and Financial Analysis, it was gas and coal power plants that largely failed to perform as expected during the arctic blast. PJM Interconnection, the regional electric grid operator that includes Kentucky, saw coal and gas power plants account for 87% of the PJM’s forced outages on Dec. 24 when energy demand was peaking.

The bill was opposed by almost all Democratic lawmakers, a handful of Republican lawmakers and Kentucky’s investor-owned utilities and manufacturers, saying that such legislation could increase electricity rates for consumers and businesses and could hinder utilities from being able to retire uneconomical, aging coal-fired power plants at the appropriate time.?

Only Democratic lawmakers mentioned the implications on climate change the bill could have as it moved through the legislature. Researchers with the United Nations issued a stark warning last week in its latest report on climate change, urging countries across the globe to slash two-thirds of its carbon dioxide emissions by 2035 to limit the catastrophic effects of rising global temperatures. United Nations Secretary-General Antonio Guterres said last week that humanity was on “thin ice” and that the world needed climate action “on all fronts.”

According to the Associated Press, Guterres specifically called on rich countries to stop using coal by 2030 and have zero-emission electricity generation in the developed world by 2035, including no gas-fired power plants.?

In Kentucky, Louisville Gas and Electric and Kentucky Utilities and the Tennessee Valley Authority are both retiring coal-fired power plants and replacing such electricity generation in part with gas-fired power plants.?

According to the International Energy Agency, coal is the largest global source of electricity generation and largest global source of carbon dioxide emissions that contribute to climate change.

Illustration from Kentucky Council on Postsecondary Education's Facebook page.

FRANKFORT — Citing higher education’s potential for spurring economic development in the wake of the coal industry’s decline, a resolution calling for a comprehensive review of Kentucky’s higher education system received Senate approval Wednesday.?

The vote for Senate Joint Resolution 98 was 35-0. It now goes to the House for consideration.?

The resolution, sponsored by Senate President Robert Stivers, would direct the Council on Postsecondary Education to study the need for changes.

Two of the big questions its comprehensive review would consider are if technical education should remain with the Kentucky Community and Technical College System, while traditional academic subjects go to four-year public universities, and if a public four-year university would be feasible in Southeastern Kentucky.?

Stivers’ resolution cites coal’s decline forcing?the region “to pursue new economic development and workforce strategies.” The conspicuous? absence of a four-year university hinders the region’s ability to make the same economic progress as other parts of Kentucky, the resolution states.

The resolution calls for studying three options: establishing a new four-year residential university in the region, establishing a residential satellite of an existing public university or acquiring an existing private university.?

Stivers, R-Manchester, has said he has no preconceived ideas about what changes should be made or what recommendations would come from the study.?

While discussing the bill Wednesday, Stivers again referenced changes that face the postsecondary education system, such as the rise of remote work and online learning.?

In his speech, he said he had received calls of concern about his intentions. After the Senate adjourned, Stivers said some of the questions were about if he wanted to take programs from institutions.?

“I basically tell them the intent is to try to have the best postsecondary education system we could have, and … beyond that, there was nothing,” he said.?

Sen. Reginald Thomas, D-Lexington, said on the Senate floor that he supports the resolution. He noted that Kentucky’s higher education system has faced problems and the state’s economy has evolved. He believed that it would be “good that we now take a look” at what changes could be possible.?

After voting in favor, Sen. Rick Girdler, R-Somerset, said that he hoped some higher education institutions outside of the public system would be acknowledged in the study, such as the University Center of the Mountains.?

The study would be due Dec. 1. Findings could be taken up in the next regular legislative session.?

KCTCS is supportive of the review and is “open to working” with the legislature and CPE, its? Acting President Larry Ferguson said in a statement to the Kentucky Lantern. He added that KCTCS contracted a firm to begin its own analysis in December 2022 to study areas such as space utilization and academic programming optimization.?

Ferguson noted “the world has changed considerably since” KCTCS was established by the legislature more than 25 years ago.?

Former Gov. Paul Patton signed the Kentucky Postsecondary Education Improvement Act of 1997 into law after the special session in 1997. Stivers referenced the session in his comments on the floor Wednesday.

Coal was loaded in Cumberland in Harlan County in 2019. (Photo by Scott Olson/Getty Images)

Central Appalachian coal miners in Kentucky, Virginia and West Virginia are more than eight times more likely than men in the general population to die from respiratory diseases like chronic obstructive pulmonary disease and black lung, according to recent research.

“This higher mortality has also worsened over time with modern miners facing greater risk than their predecessors,” wrote two of the researchers, Kirsten Almberg and Robert Cohen of the University of Illinois Chicago, in a report on the findings published Monday. “Miners in the Central Appalachian states of Kentucky, Virginia, and West Virginia face the most severe risk.”

The study was conducted jointly by researchers at the University of Illinois Chicago and the National Institute for Occupational Safety and Health, an agency within the U.S. Centers for Disease Control and Prevention. It looked at 235,550 deceased miners and is described as “the largest study of its kind to date.”

While rates of black lung, or coal workers’ pneumoconiosis? — an incurable disease caused by the inhalation of coal dust — fell in the U.S. between 1968 and 2006, cases of the most severe form of the disease, known as progressive massive fibrosis, have risen over the past two decades in Central Appalachia.

“This advanced form of (black lung) has recently been found in Central Appalachia at rates not seen since the early 1970s,” wrote the Congressional Research Service in a 2019 report. “In 2017 researchers discovered, among coal miners mostly living in Kentucky and Virginia and served by three federally funded Black Lung Clinics in Virginia, what may be the largest cluster of (progressive massive fibrosis) ever recorded.”

The University of Illinois Chicago-NIOSH study also found coal miners, and particularly those exposed to silica dust, had significantly increased odds of dying of lung cancer compared with the general U.S. population.

Central Appalachian underground mines have been found to have more silica dust on average than mines elsewhere in the U.S.

Current U.S. standards allow coal miners to be exposed to double the level of silica as other workers, although the federal Mine Safety and Health Administration is in the process of tightening those rules.