Kentucky Regulators, Industry Reps Privately Rewrote Coal Ash Rules Tuesday, Jan 17 2017 

Kentucky’s Energy and Environment Cabinet has finalized a controversial plan to let the state’s utilities virtually self-regulate the storing of hazardous coal ash near power plants.

As details about the plan emerged over the past few weeks, Cabinet Secretary Charles Snavely defended the rules and the process, saying it included “full public participation.”

But documents obtained by WFPL News show the process was far from public and instead included more than a year of backroom meetings — under both former Gov. Steve Beshear and Gov. Matt Bevin — with representatives of the utility industry. During that time, documents show the regulations were significantly revised and weakened.

When regulators began meeting with representatives of the utility industry in September 2015, the regulations they had drafted (left) were extensive. By the time they submitted the drafts to the Legislative Research Commission in October 2016 (right), the regulations were weakened.

Environmental attorney Tom FitzGerald of the Kentucky Resources Council, who has spent more than 44 years working in the state, and oftentimes on workgroups with members of industry and regulators to craft regulations, said to his knowledge, such one-sided input from industry is unprecedented in recent years.

“I think it’s unconscionable, and I think it does not reflect well on how little value [the regulators] place on public involvement in the development of regulations that are intended to protect the public,” FitzGerald said.

Representatives from the Energy and Environment Cabinet declined an interview request. In response to emailed questions, spokesman John Mura defended the cabinet’s regulatory process.

“As a part of the pre-KRS 13A deliberative process of regulation development, it is common for the state to informally discuss regulatory matters with the regulated sector that are directly impacted by those regulations,” Mura wrote.

He also pointed to a public comment period and a public hearing held in November 2016. After public comments were received, the agency made minor changes to the rule.

Dangers of Coal Ash

Coal ash — also called “coal combustion residuals,” or CCR — is the byproduct of burning coal for electricity. It’s often stored in dry landfills or wet ponds, or recycled into products like concrete or wall boards.

But it also contains contaminants like mercury, cadmium and arsenic. And environmental advocates say that’s why it’s so important there’s adequate state and federal oversight over coal ash disposal.

“Coal ash is a toxic substance that if handled incorrectly can take human lives, can make people sick, can ruin the environment, lakes, rivers, streams, permanently,” said Earthjustice attorney Lisa Evans.

In the past decade, there have been two high-profile instances — in Kingston, Tennesee and Eden, North Carolina — where large-scale coal ash spills have contaminated miles of rivers and land. But there have also been numerous other cases where there have been smaller amounts of pollution, where coal ash has caused air problems or has leached chemicals into groundwater.

Kentucky Division of Waste Management geologist Todd Hendricks mentioned a few of those instances in public comments he made about the cabinet’s proposed coal ash rule:

“Analysis of groundwater and leachate from CCR units in Kentucky has shown elevated levels of heavy metals, sulfate, boron, and other contaminants. One facility is conducting groundwater corrective action for contamination of karst springs with arsenic leaching from an inactive surface impoundment. Hundreds of thousands of gallons of arsenic-contaminated groundwater per day are captured and pumped to the active surface impoundment for dilution and discharge through a permitted outfall. At another facility, state laboratory analysis of one recent sample of fluid (presumably leachate) flowing from the toe of a closed CCR landfill showed 9.81 mg/L of arsenic, which is 981 times the maximum contaminant level (MCL).”

Coal ash wasn’t regulated by the federal Environmental Protection Agency until 2015. But with the publication of the first-ever federal coal ash rules in the Federal Register, the EPA set out new standards designed to be incorporated into states’ existing regulatory framework.

And that’s when the Kentucky Energy and Environment Cabinet began working on the state’s version of the regulations.

Emails Show Industry-State Meetings

By its own admission, the Kentucky Division of Waste Management spent more than 1,600 hours working on the regulation in 2015, under former governor Steve Beshear.

On Sept. 3, 2015, regulators sat down with representatives from Kentucky’s utility industry. They screened a PowerPoint presentation on the current draft version of the rules. And on the 12th slide, regulators told the utility representatives that their facilities would no longer be able to qualify for a program called a “permit-by-rule” for coal ash sites. Instead, they would have to stop accepting coal ash into their landfills and ponds by Oct. 19, 2015, or get a permit for disposal.

That wasn’t the last meeting between regulators and industry representatives to discuss the coal ash rules. Emails obtained through an open records request show they met in person at least three more times — in October 2015, and April and June 2016.

State regulators shared drafts of the regulations with Tom Shaw, the environmental director of Big Rivers Electric Corporation, and Jack Bender, the attorney representing the Utility Information Exchange of Kentucky, an industry group. And both men sent regulators UIEK’s comments on the proposals multiple times, months before the agency took comments from the public.

Bender declined a request for additional comment, and Shaw didn’t respond to a voicemail message.

When regulators went into that meeting on Sept. 3, 2015, the draft CCR rules were extensive. They covered groundwater monitoring, inspections, technical specifications for recycling coal ash and plans for closing facilities.

But by the time the draft regulations were released to the public in October 2016, they didn’t contain any of those specifics. And the regulations proposed regulating the electric utilities with a “permit-by-rule” — the very mechanism that the state declared it would not use during that September meeting.

Oversight Steps for Coal Ash Removed

In the proposal released to the public in October, electric utilities wouldn’t have to apply with the state for a permit to build a landfill or pond for coal ash. Instead, the state determined the utilities would have a “permit-by-rule” and could begin constructing coal ash units without prior permitting or review by state regulators.

Right now, utilities building coal ash units need a permit from the Kentucky Division of Waste Management. The process sometimes takes years and involves professional engineers, geologists and environmental technicians. Often permits are also needed from the Kentucky Division of Water.

Under the new proposal, those wouldn’t be necessary.

The state’s approach has been modified somewhat in the final version to a “registered permit-by-rule.” This means utilities will have to register before they begin construction of landfills or ponds, but there will still not be a rigorous permitting process.

“It’s the Wild West, basically,” FitzGerald said. “You get to characterize [the project] on your own, if you do at all, you get to manage it at the location you decide, you get to control the design, the construction, the operation, the closure, the post-closure. And the only time the state is going to become involved is after you screw up. If they find out about it.”

FitzGerald said skipping a rigorous permit review process — where the utility and regulators work together to design the project — could pose myriad problems.

If groundwater monitors aren’t put in the correct locations, they might not detect water pollution. Sensitive ecological or historical sites — like Wentworth Cave on Louisville Gas and Electric’s Trimble County property — could be buried under coal ash forever.

Or, in the most extreme cases, an engineering error could lead to structural flaws in a project and result in a catastrophic coal ash spill.

Cabinet spokesman Mura wrote in an email that the state’s end product is an attempt to comply with the federal rules.

“It was the Obama EPA, after a lengthy regulation development process, that promulgated an industry self-implementing program with no permitting program and with the public/state involvement process done via posting of information on industry website(s),” Mura said.

The EPA’s rules were self-implementing but intended to be incorporated into a state’s existing framework. More recently, Congress approved the Water Infrastructure Improvements for the Nation (WIIN) Act, which directs states to work the new federal standards into existing permitting programs.

Legal Challenges Possible

It’s not illegal for regulators to consult with industry representatives before a draft regulation is released for public comment.

Instead, the Kentucky Energy and Environment Cabinet routinely seeks input from so-called stakeholders early in the process. But usually that input includes people on different sides of the issue — not just industry representatives but also people from environmental groups, landowners and others with a stake in how the regulations play out.

FitzGerald said that kind of approach — where all sides are engaged early on in the process — ensures that when the regulations are released for public comment, multiple perspectives have been taken into account.

“It is far preferable and I think much more productive and you get a much more responsible work product when you have input from all of the stakeholders,” he said. “And yet in this case, the input came solely from the regulated industry. And the result was a serial weakening of a responsible approach into one that I think is the most irresponsible approach I have seen in my 44 years of working on these issues on behalf of the public.”

Before the rule is finalized, it will need approval from two legislative committees. FitzGerald said if it wins approval, he might consider seeking judicial review.

With New Land, Bernheim Forest Owns More Than 14,000 Acres Monday, Jan 16 2017 

Bernheim Forest is growing. The arboretum and research forest’s most recent acquisition is 162 acres of forest and farmland immediately adjacent to the property in Bullitt County.

Bernheim Forest

The land used to be owned by the late Raymond Thurman, a local farmer and businessman. And on a rainy January day, it’s quiet on the land. Bernheim executive director Mark Wourms is standing in a barn on the property…a place that’ll eventually play a role in the nonprofit’s outdoor education programs.

“Our protection of these kinds of lands allow us to get kids into clean waters,” Wourms said. “Because we protect the headwaters in so much of Wilson Creek, it is one of the cleanest streams in the region, if not in the state.”

Just up the hill is one of the sites that make the land unique. It’s a cedar glade — a unique and rare habitat where cedar trees thrive in poor soil and exposed bedrock. Forest manager Andrew Berry points to the various plant species.

“Bernheim’s goal for the cedar glades is to keep them in their natural condition, keep some of these endemic and rare plants,” he said. “And also to provide some connectivity between them.”

With the new acquisition, Bernheim now owns 13 cedar glades and more than 14,000 acres. But Berry says that’s still not enough.

Bernheim Forest

“But even with over 14000 acres, we know that it’s really not big enough as an ecological preserve,” he said. “So connecting this 14,600 acres up to other natural areas is really the key if we’re going to protect biodiversity and help this ecosystem in the lower Salt River function.”

This new site isn’t open to the public yet. First, Berry and his team will work to return to forest to as natural a state as possible, shoring up erosion and removing invasive species.

New Discovery Could Provide Key To Tracking Spread Of Deadly Bat Disease Wednesday, Jan 11 2017 

This is a story about a virus that infects a fungus.

The fungus causes white-nose syndrome — a disease that’s affecting bats in 29 states, including Kentucky. Bats with white-nose syndrome act strangely; they often lose the fat reserves that are necessary to survive the hibernating winter months, then leave caves in the winter and die.

Scientists estimate that so far, white-nose syndrome is fatal for anywhere from 90 to 100 percent of bats with the disease. Since 2006, it’s killed more than six million bats in North America.

This is a problem with huge implications for the ecosystem. Bats play a major role in insect control. They eat mosquitoes, and could play a role in stopping or slowing the spread of mosquito-borne illnesses, like the Zika virus.

But one of the many barriers scientists are facing in addressing white-nose syndrome is they still don’t know how it spreads. And that’s where the virus comes in.

“We don’t really know where this virus came from,” Marilyn Roossinck said.

She’s a professor of virus ecology at Penn State University, and an author of a new study on the virus. The virus in question (its technical name is Pseudogymnoascus destructans partitivirus-pa) infects the fungus (Pseudogymnoascus destructans) that causes white-nose syndrome. Roossinck said so far, it’s been found on every North American bat with the disease.

But while the fungus seems to be identical on every bat with white-nose syndrome, the virus varies between regions.

“So you can’t really tell where [white-nose syndrome] is moving around because [the fungi] all look exactly the same,” Roossinck said. “The virus has variation in it. So that’s the tool that we’re using now to try to understand how the fungus spreads.”

So, when a bat travels 100 miles from a colony in Kentucky to a colony in Ohio, scientists could be able to trace the particular Kentucky-virus it brought with it and study its trajectory.

Do bats of one species spread white-nose syndrome more readily to others of the same species? Roossinck said the virus may provide those answers, and may even help scientists make inroads into figuring out how to eradicate white-nose syndrome.

Picturing The Future: A Coal Community’s Comeback Monday, Jan 2 2017 

Can a photograph help a community grow?

One photographer is shedding some light on ongoing efforts in a region looking for some new ways to sustain itself.

Rebecca Kiger is a documentary and portrait photographer raised in West Virginia. The images she captures are often exceptionally emotionally evocative. She said it takes a lot of patience, and a little faith in both her process and her subjects.

“You have to imagine anything’s possible,” Kiger said while mousing over some of her recent images at her studio in Wheeling, West Virginia. “It allows these magical things to happen in the frame.”

Kiger went south in West Virginia this year to document new development projects in some of the communities hardest hit by the economic downturn in the coal industry. She focused on light and relationships to capture what she said was a hopeful scene.

“Photography is painting with light, basically,” Kiger explained. “I’m looking for lighting and once I have that, I’m trying to figure out how and I’m going to frame. Then the question I always ask: Why are you doing this?”

Kiger said even more than she loves photography, she loves people. What motivates her to capture compelling imagery is the desire to tell their stories. To find out if she hit her mark, we asked some of her subjects.

‘Captures the Moment’

“Captures the moment, doesn’t it?” Danny Ferguson asked Jacob Dyer as they first glanced through a book of Kiger’s photos.

Ferguson is Dyer’s mentor at the Coalfield Development Corporation in Huntington, West Virginia. The two are looking at photos Kiger took while they were building a solar power training site in Kanawha County.

Jacob Dyer at the Coalfield Development Corporation site. Rebecca Kiger

Jacob Dyer at the Coalfield Development Corporation site.

“It was a rough day that day, we was behind the gun,” Ferguson remembered.

He’s Coalfield Development’s Lincoln County crew chief. He explained that in the wake of the ailing coal industry, his organization is working to create diverse, next-generation jobs.

“I grew up in Lincoln County. That’s the whole reason I took this job,” he said. “I’d see all these kids with no possibilities, couldn’t get a job because everywhere they’d apply they’d say they want two to five years experience. Well how you gonna get the experience if no one will hire you?”

Teaching young people from the region like Jacob Dyer how to work with and install solar panels is one way Coalfield Development is hoping to support a more diverse economy.

“I’d prefer to stay here,” Dyer said, “stay home and be around my family. And help the economy, you know?”

Ferguson pointed to a black-and-white portrait of Jacob’s face. “That one picture says ‘Jacob.’ I’ve worked with him for a year and I’ve learned a lot about him,” he said. “That’s amazing. That’s what I would call a ‘wall-hanger.’”

Ferguson said while working, they barely noticed Rebecca Kiger. But he does remember talking with her during lunch.

“She was trying to find out more and she took what she found out and actually said it in a picture,” he said. “To me, that’s amazing.”

Jacob Dyer on the job installing a new solar site in Kanawha County, West Virginia.Rebecca Kiger

Jacob Dyer on the job installing a new solar site in Kanawha County, West Virginia.

Hopeful Outlook

“I probably listened to and shared more than I ever have on any other assignment,” Kiger remembered.

She said she’s grateful for work opportunities that allow her to put social media down and connect to people of all philosophies and backgrounds.

“I felt hopeful after listening to them talk about ways that they can transform communities and build communities up,” she said. “I loved every minute of it. I hope the pictures I take will bring more attention to their efforts so that they can grow.”

The photos Kiger took were commissioned by the Claude Worthington Benedum Foundation – a charitable nonprofit that funds economic development projects in West Virginia and Pennsylvania. The title of the latest annual report, which Kiger was hired to help illustrate: “Aspire. Invest. Prosper. Transitioning to West Virginia’s New Economy.”

The music in this story comes from Kai Engel.

Fish Stories from the Falls of the Ohio Saturday, Dec 31 2016 

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The Falls of the Ohio offers a variety of fishing opportunities throughout the year.  Whether you prefer light tackle action in the shallows or the pull from a fifty pound catfish while sitting on a boat…you can find that on the Ohio River flowing by Louisville.  I always check out what’s happening on the riverbank when I come out here.  I am especially interested in seeing what species are being caught and what’s being used to catch them.  On this warm December day the action was happening in the shallows.  Fisherman were using soft-bodied jigs to catch Sauger (a smaller relative of the Walleye) and this nice White Bass.

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The White Bass, (Roccus chrysops) was first described by the eccentric naturalist Constantine Rafinesque who was familiar with the fish life at the Falls of the Ohio.  The White Bass is a big river fish that is also found in impoundments.  This fish can get to be 15 to 18 inches long and a maximum of around five pounds.  We also have a smaller relative, the Yellow Bass that is also found in the Ohio River.  Both species are related to marine sea basses and scatter their eggs without further care of their young.

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Since there is a lot of fishing activity on the river, I also find a lot of lost fishing gear. Broken poles, snagged line, and lots of plastic fishing lures like this recent example. It’s very easy to snag and lose a lure in the rocky bottom out here. Usually, when I find a lure, it is minus its hooks which either have broken off or have dissolved away.  I also pick up lost fishing floats and have been amazed by how much design variety that fishing tackle can encompass.  On the negative side, I also have a fairly full sandwich bag of lead fishing weights that I have accumulated over the years.  When the river is down during the height of summer, I will check out the dried holes in the rocky bottom that catch and tumble lead and other metals.

If nothing else, 2016 will be remembered by me for the quality of the fishing.  I was able to catch three species new to me to add to a growing list of species I have documented at the Falls of the Ohio.  Check out the next couple of images of a rare Ohio River Bowfin (Amia ohioensis) I angled from under the railroad bridge.

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The Ohio River Bowfin is only marginally related to the better known Bowfin, (Amia calva).  The Ohio River Bowfin has adapted its life to living in shallow rocky streams where it ambushes other fish, frogs, crayfish, and other river invertebrates.  Uniquely, its anal and caudal fins have fused into one large fin that comes in handy for scraping out nests in the gravel bottoms it prefers to breed on.  After the male entices the gravid female into his nest and with a little luck and persuasion, a clutch of about fifty eggs is deposited and fertilized.  The male assumes all parenting duties.  Can also be distinguished by it long slender body and bright orange-colored eyes.  After a few pictures and measurements the fish was released unharmed back into the river.

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On another river expedition in November, I visited a different Falls of the Ohio location near the Interpretive Center to sample the fish life there.  Within a minute or two of my first cast I caught this near world record Copperbelly Suckermouth, (Catostomidae cupricana).  I was using a hook baited with clam meat which is the principle food of this Ohio River oddity.  The boats anchored in the river are probably going after large catfish.  This view gives you a good indication of the body type that evolved with some fish that inhabit swift flowing water.  Drag has been minimized and the pectoral fins are strong enough to anchor the fish in place as it hovers over the clam beds it prefers.

Here’s a symbiotic side note…several fresh water clam species use the Copperbelly Suckermouth as an intermediate host during part of their life cycles.  The nearly microscopic clam larvae attach themselves to the fish’s gills where for a short time, the larvae suck blood and grow before dropping off the fish to complete their life cycles in the gravely bottom. The host fish are left unharmed during the process.

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A sneak peek on why this species is called the Copperbelly Suckermouth.  It’s undersides are a deep, rich, red to orange ochre color that is particularly intense during the Spring breeding period.  The strong sucker mouth is located on the fish’s ventral side and is flanked by barbels that help it locate food in the river’s bottom.  This was also strictly catch and release as was the case with my next fishy find.  As with most bottom dwelling fish at the Falls, one should limit how big a meal you make from your catch.  Toxins are more prevalent in the lower reaches which then are ingested and stored in the fish’s fatty tissues.  This particular species, however, has minimal food value.

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Another day and location at the Falls of the Ohio and another unexpected catch!  Using a grasshopper I caught on the bank and a beaver-chewed willow pole I found nearby, I fashioned a rig with an old line and a hook and caught this Kentucky Killifish, (Cyprinodontidae gargantua) by jigging the grasshopper around the shadows cast by the fossil-loaded limestone.  I dropped the grasshopper into just the right dark hole and pulled out this beauty.

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This is a giant among the killifishes as most are under a few inches in length.  Its blue eyes are distinctive.  Small invertebrates in the form of insect larvae are its main food item, but experience has shown it will go for whatever it thinks it can swallow using its relatively tiny mouth.  This fish has no food or sport value what so ever.  During the summer breeding period, the males of this species can get very colorful in an attempt to impress.  Still, a very nice way to cap the year with a new fish to add to the life list!

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Fishing on Mars or the Falls of the Ohio?  The setting sun has colored the dried riverbank a lovely Martian red.  Here explorers are doing what we do…searching for life in the most promising place we know which happens to be by the water.  I hope 2017 manages a way to be kind to our rivers and freshwater everywhere.  I’ll end my fishing story with a look inside the box where I keep my found fishing lures.  See you next year…from the Falls of the Ohio.

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Coal Industry On Track For Record-Low Deaths In 2016 Friday, Dec 30 2016 

The nation’s coal mines are nearing a record low mark for on-the-job deaths for the third year in a row and have a chance to keep the number of fatal accidents in single digits for the first time.

With just a day left in 2016, U.S. coal mines have recorded nine deaths. West Virginia had four, Kentucky had two and there was one each in Alabama, Illinois and Pennsylvania. The low number can be attributed to far fewer coal mining jobs and tougher enforcement of mining safety rules.

“We know consistently things are getting better,” Mine Safety and Health Administration chief Joe Main said.

Industry cooperation has been crucial to making mines safer, he said, and “the angst that mine operators have with what (violations) we cite is dissipating as well.”

Dozens of mines have shuttered in recent years, especially in Appalachia. In 2011, there were about 91,000 working miners in the U.S. compared with 2015 when there were about 66,000, the lowest figure since the Energy Information Administration began collecting data in 1978. The 2016 numbers are not yet available.

Fewer mines and a smaller workforce amounts to fewer deaths and injuries, but Main noted that in 2011 — before employment numbers started to drop — a low mark was set for fatalities at 20. That was also a year after the deadly explosion at the Upper Big Branch mine in West Virginia killed 29 miners.

Previous lows in coal mining deaths were in 2014 with 16, and last year, with 11. For comparison, in 1966, the mining industry counted 233 deaths. A century ago there were 2,226.

Only one fatal accident was attributed to an explosion of gas or dust, which was to blame for the Upper Big Branch disaster. The lone explosion this year occurred July 29 at a Spartan Mining Company mine in Wyoming County, West Virginia.

Donald Workman, 58, and another miner were welding when they came in contact with methane at the surface of the mine, causing an ignition. Workman, who had worked in mines for 40 years, died six days after the blast.

Other deaths this year included wall collapses and a miner who crashed in a personal vehicle on an access road.

There have been 16 fatalities in 2016 in non-coal mines that produce gravel, sand, limestone and mineable metals. That mark also continued a downward trend, with 17 in 2015 and 30 in 2014.

Main said a lot of hard work by inspectors and industry leaders has gone into the three record-setting years. He also appeared to warn the incoming Trump administration against changing the successful formula.

“There’s a lot of ingredients that went into the recipe to make the cake that we now have in terms of having the outcomes of the safest years in mining history,” Main said. “If you start taking ingredients out of that, the cake’s not going to be as good, I can tell you that.”

Getting Rid Of The EPA’S Clean Power Plan May Be Easier Said Than Done Wednesday, Dec 28 2016 

President-Elect Donald Trump has said he will revoke numerous federal regulations when he takes office, including the Obama administration’s rules to reduce carbon dioxide emissions from power plants. But while Trump’s Environmental Protection Agency may choose to turn a blind eye when it comes to enforcing the standard, getting rid of the Clean Power Plan entirely may be easier said than done.

More than two dozen other states and state agencies are already suing to overturn the regulation, which regulates carbon dioxide emissions from power plants.

Earlier this month, the Attorneys General from 24 states, including Kentucky and Indiana, sent Donald Trump and Vice President-Elect Mike Pence a letter to stress their opposition to the regulation. The letter requested the administration issue an executive order on the first day ordering the EPA to take no further action on the Clean Power Plan.

But the challenge to the rule is currently before the D.C. Circuit Court of Appeals. Oral arguments were held in September, and because a lot of the work has been completed, Natural Resources Defense Council attorney Benjamin Longstreth says the court is likely to issue a decision regardless of whether the Trump Administration is going to attempt to scuttle the rule.

“Certainly, the normal course is for the court to decide a case that has been briefed and argued and is pending,” Longstreth said. “Even if there’s a change in administration.”

(The Natural Resources Defense Council has also intervened in the case, along with numerous other states and non-profits, on the side of the EPA and the regulation.)

If the court rules in favor of the EPA and upholds the legality of the Clean Power Plan, he said it’s likely the states challenging the rule will appeal. If the court throws out aspects of the rule, Longstreth said it’s likely to go back to the EPA for changes.

But regardless, because the Supreme Court has found carbon dioxide to be dangerous to human health — the court’s so-called “endangerment finding”— the Trump administration will have to address greenhouse gas emissions in some way.

“We already have three Supreme Court decisions that hold that carbon dioxide is a pollutant under the Clean Air Act, and that EPA has an obligation to set standards to protect Americans from that pollution,” Longstreth said. “So, there are constraints that if the Trump administration doesn’t like the Clean Power Plan, it has to figure out a different approach that still deals with that dangerous pollution.”

If he’s confirmed, President Trump’s EPA will be led by Oklahoma Attorney General Scott Pruitt, who’s involved in challenging the Clean Power Plan. But Pruitt will be limited in how much and how quickly he can roll back the rule, Longstreth says.

“One key thing to recognize here, you have to go through the same administrative process to undo a rule that you have to take to put a rule in place,” he said.

So, if Trump and Pruitt want to get rid of the Clean Power Plan, they’ll have to propose a change, take comment on it, and issue a final decision while justifying their changes. And then, they’ll have to figure out how their administration will address carbon dioxide emissions, because legally, doing nothing isn’t an option.

Land Trust Groups Merge To Protect Land Outside Louisville, Lexington Monday, Dec 26 2016 

Two of Kentucky’s land trusts are merging, with a goal of protecting land around Louisville and Lexington from development.

The Bluegrass Conservancy — which primarily works in the 15 counties around Fayette County — and the Limestone Land Trust — which covers the eight counties around Jefferson County — announced the merger earlier this month. The new group is the largest regional accredited land trust in Kentucky.

The Bluegrass Conservancy is the older of the two groups. It’s been around for more than 20 years, and in that time has protected more than 26,000 acres of Kentucky land from development. Director Elizabeth Buxton said the primary way the group works is through conservation easements.

“A conservation easement is actually a legal agreement between the land owner and the land trust. And that agreement restricts development on that property and is recorded with the land and runs with the land in perpetuity,” she said. “The land is permanently protected forever and it’s an effective way to preserve the natural resources and the farmland for future generations.”

Buxton says preserving undeveloped land around Louisville and Lexington is increasingly important, as the cities grow and sprawl starts to encroach on neighboring counties.

“This is a very unique and treasured landscape. It includes a lot of the horse farms that obviously a lot of folks know and identify with the bluegrass, but there’s a variety of other agricultural lands that are important to the region, as well as other natural resources,” Buxton said. “And we are very concerned that the increasing development pressures will destroy this landscape that is really defined as the Bluegrass.”

Buxton said the new merged group will keep the name of “Bluegrass Conservancy,” but may change to better reflect the larger service area in the future.

New Version Of Coal County Revitalization Bill Introduced In U.S. Senate Monday, Dec 26 2016 

Residents of Kentucky’s coal counties are holding out hope that next year will bring the passage of the RECLAIM Act — legislation meant to free a billion dollars from the federal Abandoned Mine Reclamation Fund to help spur economic development in communities hurting from the downturn in the coal industry.

The original RECLAIM Act was introduced in February by Kentucky Congressman Hal Rogers and 27 other representatives. But despite its bipartisan support, the bill never moved out of committee. Now, another version has been introduced in the Senate.

The Senate bill was introduced by West Virginia Senator Joe Manchin, and co-sponsored by Sherrod Brown of Ohio, Tim Kaine and Mark Warner of Virginia and Robert Casey of Pennsylvania. All represent coal states, and all are Democrats.

The bill would send money from the federal Abandoned Mine Reclamation Fund to reclaim abandoned mine sites. Proponents of the bill say it would create jobs by putting people to work doing the reclamation, as well as creating spots for future economic development.

For Letcher County resident Katie Dollarhide, it could be the boost her community needs to recover from the collapse of the coal industry.

“It would mean cleaning up the environment that has been devastated for generations and generations and generations,” she said. “There’s money sitting there in a fund that has billions and billions and billions of dollars — I don’t know how much. It’s sitting there, just taking in the interest and that’s great, that it’s building up. But right now, we need that to boost our economy.”

Rep. Rogers’ original RECLAIM Act mirrors a provision of President Barack Obama’s Power + plan. Since it was proposed in 2015, that plan has been endorsed by communities all over Appalachia, including the Kentucky cities of Whitesburg, Evarts, Vicco, Benham and Hindman, and seven Eastern Kentucky counties.

Fighting For Breath: Black Lung’s Deadliest Form Increases Monday, Dec 19 2016 

At the age of 38, a coal miner named Mackie Branham Jr. was diagnosed with progressive massive fibrosis, a debilitating and terminal form of an illness that was supposed to be a disease of the past — black lung. But Branham is among many miners afflicted by a resurgence in the disease, and officials are just beginning to realize the scope of the problem. A review of health clinic records shows roughly a thousand such cases, many times more than federal officials had thought existed.

Driving into Pike County, Kentucky, the welcome sign tells you that you’ve entered “America’s Energy Capital.” Sheer rock walls line the highway, evidence of a community that’s extremely skilled at cutting through mountains.

Pike County is in the heart of the central Appalachian coalfields, and it’s home to the offices of Dr. James Brandon Crum, a radiologist who often reads the lung X-rays of coal miners. Last July, he reached out the National Institute of Occupational Safety and Health (NIOSH) because he’d noticed a disturbing trend among his patients.

According to a NIOSH study published this month, Crum found the worst form of black lung disease in 60 patients in a period of 20 months. That’s more cases than the NIOSH black lung surveillance program had identified nationwide since 2010.

One of the study’s co-authors, NIOSH epidemiologist Scott Laney, described the rate of severe black lung at Crum’s clinic as “unprecedented by any historical standard.”

Mackie Branham Jr. is one of the 60. An X-ray of his lungs shows that they’re littered with dark splotches, the scar tissue that’s built up around deposits of coal and rock dust. With his diagnosis, Branham was told he couldn’t go back to working in the coal mines. That meant no more paychecks and the beginning of an extremely difficult period for Branham’s family.

‘I can no longer provide for my family.’ –Mackie Branham

Benny Becker | Ohio Valley ReSource

Branham’s work-history lines up with many of the reasons the NIOSH study suggests could be causing the uptick in severe black lung in younger miners. As a self-described “company man,” Branham did whatever the company asked, and that often meant extremely long hours. He often missed birthdays and holidays to pick up extra shifts. He’d sometimes work more than 24 hours straight. Longer hours likely go part of the way to explaining how a 38-year-old can have lungs worse than many retired miners.

The NIOSH report suggests another piece of the puzzle could be the popularity of a technique called slope mining, which involves making a long cut through rock in order to reach a coal seam. In central Appalachia, this usually means cutting through sandstone. Sandstone breaks down into silica dust, which can be much more harmful than coal dust. Branham said he once spent six straight months making this kind of cut, regularly working shifts as long as 16 hours.

The report also suggests that the recent downsizing of the Appalachian coal industry could be playing a major role in this new spike of diagnoses. In today’s coal landscape, laid-off miners have little hope of getting rehired, and that’s created a new incentive for miners to get tested and apply for benefits.

Branham’s black lung is so severe that he wouldn’t be able to work even if there were mines hiring. But he said he’s also affected by the continuing layoffs. As he sees it, laid-off miners have few options besides applying for black lung benefits, and that flood of claims has put him further down the list, forcing him to wait longer before he can hope to receive benefits.

“I make in a week what he made in two days.” –Amber Branham

Benny Becker | Ohio Valley ReSource

Amber and Mackie Branham.

Mackie Branham Jr. lives with his wife Amber and their five children. The family has a lawyer, and has been fighting for benefits since March, but they’ve not yet seen a dime. Branham says that his former employer, Alpha Natural Resources, has been fighting him every step of the way.

Coal companies have long been notoriously aggressive in fighting black lung claims. Branham’s condition is pretty clear-cut since he’s disabled and isn’t a smoker. But he still had to get opinions from seven doctors to make it through the process. In the meantime, it’s been hard for his family to get by. He tried to get government benefits, but was turned down for both unemployment and disability. His wife has been working over 60 hours a week as a waitress, and yet Branham said he’d likely be homeless if not for help from his family and a very kind landlord.

The NIOSH study found 60 cases of the worst form of black lung diagnosed at Dr. Crum’s clinic since 2015, and characterized that as a “resurgence.” With help from the ReSource, NPR found 392 additional cases in the same period at clinics across the region. Clinics noted over a thousand cases since 2010, which is more than double the number of cases that NIOSH’s black lung surveillance programs have found in the last forty years.

A growing number of miners with the worst form of black lung is likely to create challenges for families, communities, and the region as the whole. Coal companies responsible for paying benefits could face a growing cost in an already difficult market. Taxpayers and the federal government could end up bearing more of the burden.

Mackie Branham views a lung X-ray with Dr. James Brandon Crum, who was among the first physicians to note an uptick in black lung diagnoses.Howard Berkes, NPR

Mackie Branham views a lung X-ray with Dr. James Brandon Crum, who was among the first physicians to note an uptick in black lung diagnoses.

Branham’s former employer,  Alpha, recently emerged from bankruptcy, and is still responsible for his benefits. In the recent wave of coal bankruptcies, some companies have shed their liabilities to pay black lung benefits. When that happens, any black lung claims that company would have been responsible for are transferred to the federal black lung benefit fund. That’s what happened when  Patriot Coal, once a major employer in the region, shifted about $62 million in liabilities onto the black lung benefits fund.

black-lung-claims-paid-v2Alexandra Kanik | Ohio Valley ReSource

Benefits in Question

The federal government started paying black lung benefits in 1969 after thousands of striking miners demanded that black lung be recognized as a condition that deserved worker’s compensation.

The system has gone through a lot of changes in the years since, including changes to the requirements to receive benefits and how the costs are spread between taxpayers and coal companies. But since the 1980s, there had been one steady trend from year to year:  a decrease in the number of living beneficiaries, and the amount of benefits getting paid out each year. That’s what you’d expect given the number of regulations intended to limit exposure to coal dust.

But in the last few years, the number of black lung claims has been increasing.

black-lung-claims-received-v2Alexandra Kanik | Ohio Valley ReSource

The new surge in the worst forms of black lung is more evidence that these regulations haven’t been working as well as they were intended to. Coal mines can be an extremely cost-conscious and productivity-oriented environment, and for years there have been widespread and well-documented cases of mine operators cutting corners and ignoring safety regulations.

A new dust rule may finally address some of the issues causing the current uptick, but because black lung is contracted through years of exposure, it’ll be at least a decade before anyone can tell if things have improved.

In the meantime, some in the region are concerned about the future of the federal black lung benefits fund. Among them is Evan Smith, an attorney at the Appalachian Citizen’s Law Center in Whitesburg, Kentucky, and the man behind blacklungblog.com.  Smith said the recent bankruptcies and the increase in black lung claims could put the fund at risk.

That’s especially worrying since the fund will also be losing income as the per-ton tax on coal that supports the fund will fall along with declining production. A temporary increase in the tax is also set to expire in December, 2018. Members of Congress have asked for an updated report on the fund’s viability.

Federal black lung benefits have been been a major income source in the Ohio Valley region. Since 2009, Ohioans have received more than $95 million in federal black lung benefits.  In Kentucky, the amount is over $230 million. And in West Virginia, federal black lung benefits have paid out more than $300 million. This money goes straight into the pockets of black lung beneficiaries and is one of the biggest cash streams that’s still flowing into some coalfield communities.

A New Barrier

Click to view a flow chart on how to apply for black lung benefits.Alexandra Kanik | Ohio Valley ReSource

Click to view a flow chart on how to apply for black lung benefits.

Another possible change in the federal black lung program could come if the Republican Congress repeals the Affordable Care Act (also known as Obamacare). One section of the Act, known as the Byrd Amendment, made it easier for miners with at least 15 years of experience to file for black lung benefits, essentially shifting the burden of proving the cause of the disease from the miner to the mining company.

If the Affordable Care Act is repealed and the Byrd Amendment gets struck along with it, it could open a new set of challenges and delays that miners like Mackie Branham Jr. would have to face in trying to claim their black lung benefits.

 

Hope for Christmas

The benefits process is adversarial and difficult to get through even with the help of a lawyer. Both Mackie and Amber Branham’s fathers have form of black lung, but neither was able to get benefits, and that seems to be a common story.

It looks like Branham’s story is going to be different. On December 13th, the Branhams got some good news. After Branham submitted a diagnosis from seven doctors—  including a final one chosen by Alpha Natural Resources—  a Kentucky judge awarded Branham his worker’s compensation benefits, and Branham has hope that he’ll get a benefits payment in time for Christmas.

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