Piggy Express: ‘Right To Farm’ Law Shields Giant Hog Operation Monday, Oct 17 2016 

Mount St. Joseph in Daviess County, Kentucky, may appear calm with the Green River flowing past homes that dot the farmland here. But there is trouble in the air and it comes along with the smell of a large hog farm.

Sixty-three year old Jerry O’Bryan was born and raised on a farm in Daviess County. By the time he was 22 he had lost both parents and was left 150 acres to support his family.

“Back when I started there was two things that a young man with very little money could do to get started in agriculture, one of them was tobacco and the other one was hogs,” explained O’Bryan.

Jerry O'Bryan's farm produces 200,000 market hogs a year.Nicole Erwin | Ohio Valley ReSource

Jerry O’Bryan’s farm produces 200,000 market hogs a year.

Now he produces more than 200,000 market hogs a year. Recently, he built a hog truck wash, Piggy Express LLC., to sanitize five semi-trucks used a day to transport hogs to market. The facility upset local residents. They’ve formed  a group called CAPPAD, or Community Against Pig Pollution and Disease. Don Peters, a retired engineer, is a member.

“This truck wash was built to counter the transmission of the PED virus, which is Porcine Epidemic Diarrhea. That wiped out about half of the western Kentucky pig herd here about two years ago,” Peters said.

Worried that polluted runoff from those trucks could reach other properties, some just 200 feet away, Peters is frustrated by what he sees as an abuse of a well-meaning law: the Right to Farm Law. He says O’Bryan shouldn’t have had the right to build the wash in the first place, but the dated language of the state’s Right to Farm law supported it by shielding the owner from legal challenge.

 "They do not have the right to change the face of agriculture,” O’Bryan said of his neighbors.Nicole Erwin | Ohio Valley ReSource

“They do not have the right to change the face of agriculture,” O’Bryan said of his neighbors.

Right To Farm, But Which Farms?

“We’re in total agreement with the Right to Farm Bill and its intended purpose,” Peters said. “But it has been hijacked and in this particular case being used as a screen to afford the particular operation to move into what would normally be considered a community,” said Peters.

Peters believes what’s happened in Daviess County could happen almost anywhere. Every state has some version of a Right to Farm statute and, like Kentucky, many have dated language.

“You have these houses here, you have these houses here, here," Peters said "He comes along and, plunk, right in the middle,” Nicole Erwin | Ohio Valley ReSource

“You have these houses here, you have these houses here, here,”Peters said “He comes along and, plunk, right in the middle,”

Rusty Rumley is a senior staff attorney at the National Agricultural Law Center. He says most statutes were implemented in the ‘70s and ‘80s to protect farmers from nuisance lawsuits long before the rise of many industrial-scale operations. [Story continues below graphic.]

right-to-farm-states-bills-v3Alexandra Kanik | Ohio Valley ReSource

“Most of the states there is no reference to the [farm] size. Some of them have been updated since then, but for the most part, many of those laws are substantially on the books now as they were when they were originally enacted,” said Rumley.

Kentucky’s statute overrules any local or county ordinances with farms in operation for more than a year. Ohio’s statute protects industry in any agricultural zoned area that is in devoted exclusively to agricultural production three of the five calendar years.

Missouri and North Dakota  have recently added the Right to Farm to their constitution, placing farming on par with speech and religion and guns. Oklahoma is attempting the same with  question 777 on on the ballot for November 8, which is completely different from the old version, according to Rumley.

“This new version” he said,  would give Oklahoma farms the constitutional right to raise livestock without interference from future regulations by the state Legislature without a compelling state interest.

“The older Right to Farm Bills,” like Kentucky’s Rumley said, “strictly offer nuisance protection.”  While they have the same title legislation varies greatly from state to state.

Rumely said as a general rule of thumb,  “the more important agriculture is to the economy of the state the stronger the right to farm protection will generally be.”

Kentucky’s Statute

Since a Right to Farm Bill was first passed in Kentucky in 1980, only once has a court publicly ruled on the statute. Jay Prather is a Lexington based lawyer that represented the plaintiff in Powell v Tosh, a case where a group of concerned citizens filed suit against a commercial hog operation. In the 2013 pretrial decision, the courts addressed the Right to Farm statute used as defense.

“The farm in question had only begun hog operations in the previous few years,” explained Prather. “All of the plaintiffs lived on their land before the hog operations began so the court ruled that the hog operation was not a pre-existing operation, even though the land had been used for farm land it had previously just been used to grow crops, and some small livestock, but not for industrial farming,” said Prather.

The Powell v Tosh case was a closed settlement and took place in district court, so Prather said it’s not binding on any future court decisions, but would certainly be persuasive.

Peters of CAPPAD hopes a lawmaker will amend Kentucky’s Right to Farm language to give existing communities protection as well as farms. But in an election year no one has offered to bring it to the legislature.

Kentucky Department of Agriculture Chief of Staff Keith Rogers said he has not been approached by CAPPAD on the issue but would be willing to sit down with the group, along with Agriculture Commissioner Ryan Quarles, to better understand the concerns.

If CAPPAD can not find a sponsor to amend the Kentucky Right to Farm statute, Rogers said “the KDA and Commissioner can propose legislation as needed to members of the general assembly.”

But changes in the law “sometimes takes years” Rogers said, because of the educational process and bringing a consensus together. Rogers believes the state will only hear more issues related to the statute.

“Agriculture has changed a great deal over the last 10 or 20 years and many of our farming operations have grown substantially,” Rogers said. “This may be one of those situations where it’s time to take a review of the Right to Farm Law.”

Rogers said the KDA will side with the farms as long as they are “good actors” or environmentally compliant.

‘Gray Water’ No Black and White Issue

“We're in total agreement with the Right to Farm Bill and its intended purpose,” Peters said. “But it has been hijacked in this particular case."Nicole Erwin | Ohio Valley ReSource

“We’re in total agreement with the Right to Farm Bill and its intended purpose,” Peters said. “But it has been hijacked in this particular case.”

Peters said the environmental compliance issue is his greatest concern. He stood on his neighbor’s property line taking in the nearby truck wash.

“You have these houses here, you have these houses here, here, here, here, here, you have our two houses, he comes along and, plunk, right in the middle,” he said. Peters points out while the area is agriculturally zoned, there is a community of residences that existed before this truck wash was conceived.

right-to-farm-mapAlexandra Kanik | Ohio Valley ReSource

Since the wash began operations in February, Peters said appraisals of nearby homes show they have lost 15 to 30 percent of their value.

Rachel Foster, a property valuation administrator for the area confirmed the loss. She said two of those homes have appealed further depreciation because they feel the appraisal should have demonstrated a greater loss in value.

More than property value, Peters  is concerned about the impoundment used to store waste water from the trucks. O’Bryan calls it a “gray water pond.” Peters says it’s a “lagoon.” It’s an important distinction  because Kentucky’s Division of Water doesn’t regulate gray water, but they do regulate lagoons associated with the pork industry.

O’Bryan calls the wastewater impoundment at the wash a “gray water pond” because he believes a lagoon is “something that is getting a lot of nutrient load and this is not.”

Peters is worried about how O’Bryan will control the waste water levels.

“So this field is to get rid of that water, and this stream is to get rid of that water,” Peter said, pointing to features nearby. “That’s the real reason he bought it.”

Jerry O’Bryan said he looked for more than a year before deciding where to put the truck wash, he said it had to be far enough from the hogs to maintain proper biosecurity measures.

“We had to find something far away and we found this place and everything about it seemed to fit, I gave a lot of money for it, it’s about 3 miles away from our nearest hogs,” O’Bryan said.

"Gray water pond" or "pig waste lagoon"? The answer may determine what rules apply.Nicole Erwin | Ohio Valley ReSource

“Gray water pond” or “pig waste lagoon”? The answer may determine what rules apply.

An Escalating Farm Fight

O’Bryan maintains that his operation is business as usual and that the CAPPAD members are trying to change something they just don’t understand. And he has some pretty inflammatory words for his neighbors.

“Now I could get real radical and belligerent and say well they remind me of Muslims they come in and they want to change the culture,” O’Bryan said. “These are obviously Americans but they do not have the right to change the face of agriculture,” said O’Bryan.

O’Bryan says he has seen this all before. CAPPAD will grow tired of complaining and it will all go away. But Don Peters insists he is here to stay.

“Let me put it this way,” Peters said. “I’m going to die here. So I’ll fight it. I don’t have that many more years left.”

Billionaire Gubernatorial Candidate Owes $15 Million In Taxes And Fines Friday, Oct 7 2016 

West Virginia’s Democratic candidate for governor is a billionaire, a philanthropist and a resort and coal mine owner who cites his business and mining experience as major attributes as he seeks to lead his home state out of a severe budget and economic crisis.

“I am not a career politician; I am a career businessman,” wrote Jim Justice in an April 5 op-ed that appeared in the Charleston Gazette-Mail.

But an NPR investigation shows that Justice’s mining companies still fail to pay millions of dollars in mine safety penalties two years after an earlier investigation documented the same behavior. Our analysis of federal data shows that Justice is now the nation’s top mine safety delinquent.

His mining companies owe $15 million in six states, including property and minerals taxes, state coal severance and withholding taxes, and federal income, excise and unemployment taxes, as well as mine safety penalties, according to county, state and federal records.


In the past 16 months, while fines and taxes went unpaid, Justice personally contributed nearly $2.9 million in interest-free loans and in-kind contributions to his gubernatorial campaign, according to state campaign finance reports.

Grant Herring, a spokesman for the Justice gubernatorial campaign, said Justice “won’t be doing an interview,” despite multiple requests after NPR provided details of our investigation.

But Billy Shelton, an attorney for Justice mining companies in Kentucky, responded to Justice’s failure to pay $2.6 million in delinquent federal mine safety penalties, which are levied by the federal Mine Safety and Health Administration. MSHA and Treasury Department data obtained by NPR show that Justice has paid $675,000 this year as part of a payment agreement, but the agreement covers less than half of the total amount owed.

“Unlike the coal companies that filed for bankruptcy and walked away from their obligations, the Justice companies are being responsible and following the agreed-upon payment plan. … The Justice companies are taking the proper steps to make good on all MSHA commitments,” Shelton says. “To imply anything beyond that is purely for political reasons and ignores the facts.”

justice-coal_custom-1Anna Boiko-Weyrauch/NPR

A coal separator sorts and piles up coal at the Tams mountaintop removal mine near Beckley, W.Va. The mine is operated by Southern Coal Corp., which is owned by Jim Justice.

Safety Violations Persist

Justice is celebrated in West Virginia for saving the historic and luxurious Greenbrier Resort, a major economic driver for the surrounding region. But dozens of his coal mines in West Virginia and other Appalachian states have a history of safety violations and failure to pay on time the penalties that are supposed to discourage unsafe practices, according to MSHA violations and penalties data.

That’s what NPR and Mine Safety and Health News documented in a joint investigation in 2014. At the time, Tom Lusk, the chief operating officer of Justice’s mining companies, insisted that Justice “does not run from his obligations. … He’s made it abundantly clear that there’s no way we’re going to not fully meet and satisfy these obligations.”

NPR conducted another analysis of federal mine safety data exactly two years later and found that mines owned by Justice added $1.38 million in new and unpaid mine safety penalties.

A view of Jim Justice's Greenbrier Resort in White Sulphur Springs, W.Va., in 2013. Brendan Smialowski/AFP/Getty Images (via NPR)

A view of Jim Justice’s Greenbrier Resort in White Sulphur Springs, W.Va., in 2013.

Delinquent Justice mines also continue to have worse-than-average safety records, according to NPR’s analysis of MSHA injury and violations data. Our analysis shows that injury rates (for injuries forcing time away from work) are twice the national average and violations rates more than four times the national rate during the years the Justice mines failed to pay penalties.


The MSHA data also show that those mines were cited for 3,657 violations while they were delinquent, including 699 violations that are classified by MSHA as factors in mine fatalities, fatal mine accidents and major disasters.

MSHA mine inspectors issued dozens of citations for excessive coal dust, which can feed mine explosions, and roof and wall violations, which can lead to mine collapses.

One Justice mining company, Kentucky Fuel Corp., owed more than $709,000 in delinquent penalties, according to MSHA data, and was admonished in an April decision from the Federal Mine Safety and Health Commission, which adjudicates penalty disputes.

“Kentucky Fuel’s history regarding the payment of penalties is abysmal,” the commission wrote. “The operator’s record indicates that it has repeatedly disregarded final penalty assessments.”

The Justice fines concern Celeste Monforton, a former MSHA official, mine disaster investigator and lecturer on workplace safety at George Washington University and Texas State University.

“I don’t think we should forget that the reason that he has those penalties is because there were violations and hazards in his coal mining operations,” says Monforton.

Kentucky Fuel also tops all of Justice’s mining companies for delinquent fines, county taxes and state and federal tax liens combined, with more than $8 million due, according to county, state and federal records.

Justice was asked about safety at his mines when he announced his run for governor last year.

“I’m a safety fanatic,” he said at a news conference. “So I’m the last person in the world that’s wanting something to where you would put an employee in a situation that would be unsafe.”

As for the delinquent mine safety fines reported by NPR in 2014, Justice said “we’ll absolutely … make sure that every one of them is taken care of.”

Pressure Prompts Payments

Lusk and MSHA agreed to a payment plan in December 2015, after two years of discussions, and the Justice mining companies have made every $75,000 monthly payment since. But the plan does not cover more than $1.7 million in unpaid fines referred to the U.S. Treasury for collection, according to Treasury records provided in response to a Freedom of Information Act request.

The records show that some of the delinquent fines have been sent on to the U.S. Department of Justice for possible litigation and that others are pending referral to the agency.

Shelton says he is seeking a payment plan to cover the fines referred to Treasury.

The “Justice group has diligently pursued payment plans and full resolution of all outstanding issues,” Lusk recently said.

Payment plans also exist in counties where Justice mining companies failed to pay more than $5.4 million in county taxes.

Media and legal pressure have been successful in getting the Justice companies to pay.

In April, the Charleston Gazette-Mail reported that the Justice companies owed $3.9 million in delinquent 2015 property taxes in West Virginia. Most were paid within two weeks.

A dirt road in Tazewell County, Va., leads to the War Creek underground coal mine, where county officials seized mining equipment in April to force payment of delinquent county taxes. War Creek is operated by Justice subsidiary Black River Coal, which is also named in state tax liens in neighboring West Virginia. Anna Boiko-Weyrauch/NPR

A dirt road in Tazewell County, Va., leads to the War Creek underground coal mine, where county officials seized mining equipment in April to force payment of delinquent county taxes. War Creek is operated by Justice subsidiary Black River Coal, which is also named in state tax liens in neighboring West Virginia.

In Harlan County, Ky., in October, the county attorney sued. In Tazewell County, Va., in April, the county sheriff seized mining equipment at a Justice mine, citing back taxes. Both moves got the checks flowing.

In Knott County, Ky., multiple lawsuits were filed against Justice’s Kentucky Fuel Corp. A suit last year sought $2.7 million for three years of back taxes. That triggered about $300,000 in payments, but those suddenly stopped in April, says Knott County Judge-Executive Zachary Weinberg.

Weinberg calls Kentucky Fuel a “habitual offender” that is denying the county critical funds.

“You’re talking about maybe a grant writer, or to keep the senior citizens’ program whole or to pick trash up or to keep lights on, [or] to keep the employees with good health insurance,” Weinberg says, adding that the county health board, school board, conservation district and extension office share in and need the unpaid taxes.

Knott County sought court orders twice in the past two months and payments suddenly resumed again.

Even Shelton, Justice’s Kentucky attorney, sued to get paid.

In 2013, Shelton filed a complaint in Pike County, Ky., seeking $85,220 in unpaid legal fees from seven Justice mining companies. Within a month, Shelton had a default judgment awarding him his money plus legal fees and interest.

“[The] lawsuit was the result of a misunderstanding,” Shelton says now, adding that the right Justice executive wasn’t aware of the dispute until the suit was filed.

Just last week, 26 Justice mining companies and the Environmental Protection Agency agreed to a $6 million settlement for thousands of water pollution violations, which have been the focus of news stories in the past two years.

Millions More in Unpaid State and Federal Taxes

It’s not just federal fines and county taxes that have public agencies seeking money from Justice’s mines.

NPR found in county records in South Carolina, Tennessee, Kentucky, Virginia and West Virginia more than $6 million in state and federal tax liens for failure to pay state withholding and coal severance taxes, and federal income, excise and unemployment taxes.

Most of the state and federal liens — more than $4.5 million worth — are in Justice’s home state of West Virginia, and more than 60 percent of that debt is for state coal severance taxes.

A haul road leads to the top of the Tams mountaintop removal mine near Beckley, W.Va. Anna Boiko-Weyrauch/NPR

A haul road leads to the top of the Tams mountaintop removal mine near Beckley, W.Va.

In 2014 alone, Justice’s Kentucky Fuel Corp. failed to pay $1.14 million in coal severance taxes. That’s documented in a lien filed by the West Virginia Tax Department, and that single lien made up about a third of the state’s total coal severance tax delinquencies for the year, according to figures provided by the agency.

Justice himself touted the importance of coal severance taxes last week in an interview with the editorial board of The Dominion Post of Morgantown, W.Va.

He “adamantly” opposed a proposal to cut the state severance tax. “All that does is put some money in my pocket,” Justice told the newspaper. Cutting the tax would force the state “to cut our roads and our schools and everything else.”

Tough Times for Coal

Two years ago, Lusk told NPR that a sharp decline in the coal industry made it difficult for mining companies to pay their bills. He also said Justice believed his companies had to stand on their own.

“An operator that’s going to maintain a safe operation is faced with a dilemma of what gets paid and what doesn’t,” Lusk said. “And the unpaid fines and citations … have simply been not having the available cash to settle those.”

Coal mining has suffered even more since then, with thousands of jobs lost and some of the biggest operators declaring bankruptcy.

Most of Justice’s delinquent mines are now either abandoned or temporarily closed. But while they were operating and delinquent, they produced more than 2.4 million tons of coal, according to MSHA data.

And that coal, according to coal price reports from the Energy Information Administration, was conservatively worth an estimated $697 million.

Still, Justice campaign spokesman Herring cited “the downturn in the coal industry” in trying to explain something else NPR discovered — Justice’s failure to honor two highly publicized pledges to major charities.

In 2011, with news stories celebrating the announcement, Justice promised to contribute $10 million to Cleveland Clinic Innovations, the commercialization arm of the Ohio medical giant.

Cleveland Clinic spokesperson Janice Guhl tells NPR “no money was received from Mr. Justice.”

Three months earlier, the Boy Scouts of America announced a $25 million gift from Justice to create the James C. Justice National Scout Camp, which is part of a 14,000-acre Boy Scout reserve in West Virginia.

But Herring confirms that Justice donated only $5 million and some land. He says the coal industry’s decline “has delayed some larger donations, but Jim Justice always keeps his word and has every intention of fulfilling all of his charitable pledges.”

In Knott County, Weinberg notes that his county is also suffering from coal mine closures and layoffs. The county budget, he says, was slashed in half in the last six years.

Weinberg believes Justice has the resources to pay what his companies owe. Forbes says Justice is the richest person in West Virginia and worth $1.56 billion.

That’s plenty for Weinberg. “He could pay it one way or the other,” he says.

This story was also reported and researched by Robert Benincasa, Barbara Van Woerkom, Lily Lieberman and Anna Boiko-Weyrauch of NPR; Jesse Wright, Ashton Marra and Dave Mistich of West Virginia Public Broadcasting; Jeff Young, Benny Becker and Becca Schimmel of Ohio Valley ReSource; and Ellen Smith of Mine Safety and Health News.

Copyright 2016 NPR. To see more, visit http://www.npr.org/.

Justice Delayed: Kentucky Communities Left With Coal Baron’s Debts, Damaged Lands Friday, Oct 7 2016 

The Democratic candidate for governor in West Virginia has never held public office. Jim Justice is instead running on his record as a businessman. He runs coal mines, farms, and a luxury resort, and according to Forbes, he’s also the wealthiest person in the state, worth $1.56 billion.

A review of records by NPR and the Ohio Valley ReSource shows that his coal companies owe more than $12 million in overdue county, state, and federal taxes, as well as over $2 million for mine safety violations. Add a lengthy list of environmental violations and damaged mine sites, and a pattern emerges: Justice’s business liabilities have in many cases become public liabilities, and the costs often fall hardest on already cash-strapped communities in the Appalachian coalfields.

You can read a report from NPR’s Howard Berkes here.

The review by NPR, the ReSource and its partner station, West Virginia Public Broadcasting, provides the first comprehensive accounting of these debts and delinquencies. Some of Justice’s problems with taxes, mine safety and environmental violations have been reported previously, raising criticism for the billionaire candidate.

For example, in April the Charleston Gazette-Mail reported that Jim Justice owed at least $3.9 million in overdue property taxes to six West Virginia counties. Justice quickly committed to paying all those taxes.

“Every single tax obligation that I have in West Virginia will be paid before the end of the month of April,” Justice said at the time.

That month, Justice did pay down a lot of the property taxes he owed to counties in West Virginia, but that covered just a fraction of his total delinquent tax bill. He still owes $3.7 million dollars in West Virginia state taxes. His companies also owe more than $3 million in overdue federal taxes, and in counties outside of West Virginia, Justice still owes large amounts of property taxes, mainly in the coalfields of eastern Kentucky.

jim justice-mapsAlexandra Kanik | wfpl.org

“A Huge Burden”

zack weinbergBenny Becker | Ohio Valley ReSource

Zach Weinberg looks at the tally of property taxes that Jim Justice’s company owes Knott County.

Knott County has been hit hard by the coal industry’s decline. The county budget is now half what it was just seven years ago. Knott County is also owed more than $2.3 million by Justice, the most of any county.

Knott County Judge-Executive Zach Weinberg described Justice’s company as “a repeat offender” and explained that the county has already won two lawsuits against Justice’s company to force payment of back taxes.

“Every dollar that somebody doesn’t pay puts a huge burden on the county,” Weinberg said.

The situation isn’t unique to Knott County. Justice’s companies owe another $3 million to other counties across Appalachia. In Tazewell County, Virginia, Treasurer David Larimer seized mining equipment to force a payment. He described walking around the mine’s gravel driveway on a snowy day, using scotch tape to attach seizure orders to every piece of equipment he saw.

“Continuous miners, ventilation systems, computers in the office,” Larimer said, “we put notice on there that it was a felony to move it.”

“We Lost Everything”

jim justice-keen-smith-danielsBenny Becker | Ohio Valley ReSource

Chad Keene, Mollie Smith, and Toby Daniels stand on the driveway that was washed out and then rebuilt by Justice’s company.

As NPR has reported, Justice’s coal companies owe $2 million in outstanding mine safety fines, the most of any mining operation in the country. His companies also have a history of environmental problems. Justice recently reached a settlement with state and federal agencies for water pollution violations in five states. The settlement calls for $5 million worth of fixes, and $900,000 in fines.

In Kentucky, Justice’s companies had already racked up more than 500 violations and over $4 million in fines for failing to restore land that they’d mined. The state negotiated multiple rounds of agreed orders with Justice, but his companies weren’t living up to them, so the state took Justice to court. There’s been steady progress since then, but Justice’s companies still have a lot more reclamation work to do, and nearby residents say some unreclaimed mines have already caused serious damage.

Bevin’s Branch is a Justice-owned surface mine in Pike County, Kentucky. Justice’s company had committed to reclaim the site by July 2015, but little had been done by the night of June 3, 2016, when a heavy rain fell on the strip mine. The runoff breached a diversion ditch and sent a torrent of mud and debris flooding down the mountain.

Chad Keene said the scene looked “like a bomb went off” at the bottom of the slope where he lives.

“All you could see was a wall of water, rock, trees, dirt and everything that had washed from the mine site,” he said.

Keene’s driveway was washed out by the flood, as was the road in front of his house. Keene, his girlfriend Mollie Smith, and her son Toby Daniels had no way out, and neither did any of their neighbors up the road. Their water was cut off and they didn’t have a lot of food, so that made the situation even scarier. Smith said the water hadn’t gone down by daylight, and that it was another couple of days before the road was clear enough for a car to get through.

A second stream of mud and debris rushed down the mountain that night. Laura and Elvis Thacker said it flooded their property just 10 minutes after the rain started, coming so fast that several of their cats drowned.

They didn’t realize what was happening until they decided to check out why the storm sounded a little strange. They headed toward the back patio and saw mud piled more than a foot high against the glass door. It wasn’t until the sun came up the next morning that they saw the massive tangle of rocks and logs just uphill from their house, stopped by a trailer and their garage, which were nudged downhill in the process.

Their house wasn’t moved, but the mud knocked out support blocks, water seeped through the walls, and now mold has set in. Their contractor estimated the damages at $148,000.

The Thackers said they’d been offered some money by Justice’s company, but not even enough to buy a cheap double-wide trailer, much less to cover the cost of demolishing their ruined home and replacing everything else they lost in the flood.

jim justice-thackerBenny Becker | Ohio Valley ReSource

Elvis Thacker stands outside his ruined home on the back patio that was covered by more than a foot and a half of mud.

The Thackers said it was especially hard to stomach the loss because they’d only recently achieved financial stability. After Elvis lost his coal job seven years ago, they lost a car and a truck, and for years they worked two jobs apiece, trying to stay afloat.

“We’ve lost everything,” Laura Thacker said, “we’re going to have to start all over.”

The couple is now talking to a lawyer, trying to get Justice and his company to take responsibility and pay for the damage. The company fixed the ditch that breached and caused the flood, but there are still outstanding reclamation issues on that mine site, and it’s still a cause for concern.

Many of those affected by the flood described lasting emotional trauma. Chad Keene said that he and Mollie Smith don’t sleep when it rains. If it’s raining, they take turns watching the creek just in case it happens again.

“You always worry when the next one’s gonna break,” Smith said, “and you always just live in fear.”

Better Than Bankruptcy?

Justice and his team didn’t respond to our interview requests, but back in April, Justice responded to earlier criticism during a Democratic primary debate in the governor’s race.

“Jim Justice has never bankrupted any company,” he said. “It would’ve been an easy way. Just shut the doors. Let everybody get stuck. I didn’t do it. I promise you that every single obligation that I ever have will be fulfilled.”

Justice’s attorney, Billy Shelton, echoed this argument in a written response last month to questions submitted by NPR about Justice’s unpaid mine safety fines.

“[T]he Justice Companies are being responsible and following the agreed upon payment plan,” Shelton wrote. “To imply anything beyond that is purely for political reasons and ignores the facts.”

Back in Knott County, Judge Weinberg said he understands how delayed payments could be better than bankruptcy. But he said it’s harder to accept that explanation coming from a billionaire, and doesn’t count for much until Knott County actually gets its money.

“If they eventually pay it that’s probably true,” Weinberg said, “but if they don’t pay it, it’s not better at all.”

After inquiries from reporters and legal action by some county officials, Justice’s companies have recently started making some payments on several of their long-overdue tax bills, including in Knott County. It’s a start, but there’s still a lot of money owed, and in many cases, damage has already been done.

As the saying goes, justice delayed is justice denied.

Prescription Drugs. Presidential Debate. Thursday, Oct 6 2016 

Business Wire WASHINGTON–(BUSINESS WIRE)–A group of patient advocates and businesses representing the right of Americans to engage in the importation of prescription medications from safe, credentialed international pharmacies, today announced joint support of an unprecedented initiative to ensure presidential candidates … Continue reading →

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Weekend Solar Tour Stresses Need For Action, Advocates Say Thursday, Oct 6 2016 

The city’s annual Solar Tour is slated for Saturday.

Residents will span the city for a self-guided tour of residential and commercial properties powered by solar energy. Experts will also provide a tutorial on solar basics and the potential for solar power locally and across the state.

The 8th annual tour comes about six months after Louisville Metro government officials launched an advocacy plan to promote solar use called Solar Over Louisville.

To date, about 250 residential properties are hooked up to solar energy, including the large Sheppard Square housing complex near downtown Louisville, said Nancy Givens, a spokeswoman for Solar Over Louisville.

The spread of solar power use in Louisville is slowly picking up pace, Givens said. Events like Saturday’s tour are meant to amplify support for solar and highlight action needed to make solar more accessible.

“To a lot of people, it still seems like a foreign entity,” she said.

To break that stigma, she said solar advocates are pushing a handful of initiatives on state and local lawmakers. Efforts focused on breaking the state’s attraction to coal fueled energy got a boost earlier this year at the governor’s annual conference on the energy and environment, said Givens.

The focus of the conference has long been on natural gas, coal and nuclear power. This year, however, “the entire focus was on corporate sustainable responsibility, sustainability and renewable energy.”

“It was a sea-change,” Givens said.

This new focus is being driven, in part, by a corporation-led movement towards sustainable practices, Givens said.

“Governments are being forced to be responsive,” she said.

Givens also pointed to the need to expand incentive programs that allow property owners to finance energy through private loans, which are paid back via property valuation assessments.

Last year, state lawmakers paved the way for local governments to create Energy Project Assessment Districts, which allow certain property owners, specifically those owning commercial, industrial and multifamily housing units, to take out private loans and pay them back through property valuation assessments.

The Louisville Metro Council approved a local program earlier this year, but it’s yet to roll-out, said Councilman Bill Hollander, chair of the council’s majority caucus. He said the program still needs regulation policy, which is being crafted by the city’s Office of Sustainability.

A spokesman for the city’s Develop Louisville department did not immediately respond to a request for comment on the program’s evolution.

Under the program, single family homes would fail to qualify for incentives, Hollander said. Allowing single family residential property owners to qualify for incentives, he added, hinges on a change in state law.

Givens called such programs a “new frontier” in sustainable energy.

Locally, Hollander said there is no legislative action on the council’s agenda directly dealing with advancing the accessibility of solar power.

He said a “series of meetings” are ongoing related to reworking the city’s permitting process for the installation of solar infrastructure.

Givens said this process is too slow. In Louisville, gaining a permit to install solar infrastructure can take weeks, whereas in some other cities it’s as quick as 24 hours.

“Delays like that cost homeowners and installer companies money,” she said.

She said Louisville Metro government officials applied for a federal grant to assist in streamlining the permitting process. The SolSmart grant program is funded by the U.S. Department of Energy SunShot Initiative and focuses on reducing “soft costs” of solar installation, like permitting, according to the program’s website.

A spokesman for the city did not immediately respond to a request for comment.

“I think we’re making progress on the issue,” Hollander said.

Givens praised the recent effort to advance solar in the city, but said now is the time to push for even more accessibility.

Saturday’s tour will touch on these themes, Givens said, and serve as a way to “clamor against the city to develop solar.”

Good News: Bears! Tuesday, Oct 4 2016 

It all started back in July, when a visitor to Bernheim Arboretum and Research Forest snapped a picture of a bear near Lake Nevin. The photo was turned over to forest officials, and that was the last anyone heard of it — until last week.

That’s when trail cameras — motion-sensitive cameras stationed throughout the forest — captured these images:


bearBernheim Arboretum and Research Forest

It’s a black bear, probably young, probably male. It’s also the first confirmed bear in Bernheim in almost 100 years.

Bernheim Executive Director Mark Wourms says it’s probably the same bear because there aren’t many reports of bears in the area. He says it makes sense for a young male bear to be wandering into new territory this time of year.

“They are pushed out of their home ranges in the summer and spring, and they have to migrate around,” Wourms says. “They move around looking for food, looking for a great habitat, and of course, looking for females.”

This particular guy shouldn’t have much trouble with the ladies — if he ever finds any. “He’s robust, he’s got a great coat color, he looks sharp,” Wourms says. “He looks like a very healthy bear.”

But love isn’t all he needs.

“This time of year is when bears in general are really fattening up for the winter,” Wourms says. Bears have to gain enough weight to nourish them throughout their winter hibernation. This bear is probably snacking on Bernheim’s acorns and berries, digging up roots, and scavenging for carrion. “Just eating anything he can find,” says Wourms.

This furry bachelor is likely from Eastern Kentucky, in the foothills of the Appalachian Mountains. Before human settlement, that area and the area that’s now Bernheim were home to large bear populations. But their numbers dwindled as settlers chopped down trees and hunted them for their meat and fur.

Now researchers are hopeful they’re coming back. And Wourms says the appearance of this bear is very encouraging. “Eventually they’re going to find these rare forest blocks like Bernheim, which will act as a respite or even as a secondary population,” he says.

If you’re a bear looking for a sweet spot to sleep away the winter, you could do a lot worse than Bernheim. “We of course have some wonderful rocky outcrops that would be possible, we have some downed logs,” Wourms says. “There are even a few small caves.”

If the bear does stick around for a while, he will likely run away from any encounters with humans.

“Black bear are not grizzlies, black bears are much more timid animals,” Wourms says.

Their eyesight is poor, but their keen noses and ears will help them sense (and run away from) nearby humans. But if you do happen to see this woodland creature, show him the proper respect.

“Don’t chase after him, don’t approach, don’t try to feed him,” Wourms says.

And keep your dog on a leash.

Back in July when a bear was first spotted, attendance at Bernheim jumped. They expect to see lots of visitors this fall, as people try to get a glimpse of the bear in person. But even if you don’t see him, you might see his footprints, evidence of him scratching on the trees, or something else: “Scat,” Wourms says. “It’s very distinct.”

Bernheim has decided to name the bear, and they’re inviting the public to vote. Possible names are Bernie, Ranger, and Wilson, and voting is open on Bernheim’s website until October 12.

Clean Power Plan Challengers Have Day In Court Wednesday, Sep 28 2016 

Kentucky, Ohio, and West Virginia were among the 27 states challenging the Obama Administration’s Clean Power Plan, in oral arguments Tuesday before the U.S. Court of Appeals in Washington, D.C.  

The CPP aims to reduce by about a third the power plant emissions of CO2, a greenhouse gas that scientists have identified as a major cause of climate change. The pollution reductions would come in phases over a little more than two decades.

In an unusual move that reflects the importance of the case, all of the court’s 10 judges heard a full day of arguments, rather than the usual panel of three.  

Supporters say the EPA plan would spur investment in clean energy technology. Opponents, including West Virginia Senator Shelley Moore Capito, say it will drive up the price of electricity and hurt an already ailing coal industry.  

“It’s not just the coal worker and coal company,” that would be hurt, Capito said. “It’s the railroads, it’s the truck people.”

In a statement, Senate Majority Leader Mitch McConnell of Kentucky called the president’s plan another example of executive overreach.

“I’ve always believed the Administration overstepped its authority by essentially legislating through regulation and that such a plan would likely fail to survive legal scrutiny,” McConnell said.

Several conservation groups joined 19 states that support the plan. David Doniger of the Natural Resources Defense Council said he was struck by the sweeping nature of the challengers’ argument.

“They’re trying to make the argument that if the result of the rule is to require states to have public utilities commissions do their normal work, then this is a terrific invasion of the state’s turf,” Doniger said. “If that were right then every other aspect of the Clean Air Act that has the same effect on power plants would be equally problematic, and i just don’t think that’s the case.”

The case, known as West Virginia v. EPA, has already been before the U.S. Supreme Court, which voted 5-4 in February to stay the implementation of the CPP and send the case back to the appeals court. Most court observers say the suit will likely be back before the Supreme Court next year.   

Under the CPP, each affected state would have to meet a given target for reducing CO2 pollution from power plants by the year 2030. The plan gives states flexibility in how to achieve those reductions.

The graphic below explains the scale and timeline of emissions reductions that Kentucky would have to meet. 

cpp explainerAlexandra Kanik | wfpl.org

LG&E, Sierra Club Settle Mill Creek Dispute Tuesday, Sep 27 2016 

An agreement has been reached between Louisville Gas and Electric Company and the Sierra Club in their dispute over the discharge of wastewater from an LG&E coal ash pond.

If approved by a federal judge, the agreement will resolve a lawsuit filed by the Sierra Club, represented by the group Earthjustice.

The suit alleged that LG&E was illegally discharging wastewater at levels beyond what was allowed under a state permit into the Ohio River. The wastewater came from its Mill Creek Generating Station in southwestern Jefferson County.

Under the agreement, LG&E will, among other things, eliminate the use of the disputed open discharge point, except for emergencies and maintenance, and fund $1 million in watershed restoration in Kentucky, primarily in southwestern Jefferson County.

“We are pleased that we were able to reach an agreement with LG&E that will help protect water quality in the Ohio River and fund an effort to address other water quality issues in the Mill Creek watershed,” said Judy Lyons, chair of the Sierra Club Cumberland Chapter. “Going forward, we will continue to encourage the company to focus on expansion of renewable sources of energy as it reduces its reliance on coal.”

LG&E chairman, CEO and president Victor A. Staffieri issued a statement Tuesday saying the company appreciated the opportunity to work with the Sierra Club “in finding common ground.”

“We had a vigorous disagreement over the meaning of certain permit language in this case but are glad to have reached a resolution that brings this dispute to an end,” he said. “While we may not always agree with the Sierra Club, we take seriously our commitment to being a good environmental steward while providing low-cost, reliable energy to our customers.”

Earthjustice attorney Thomas Cmar represented the Sierra Club in the lawsuit. In a statement, Cmar applauded the settlement, saying it would improve water quality throughout the Mill Creek watershed.

“It’s a good day whenever two opposing sides can see past their differences to reach an agreement that is not only in their best interests but will also provide real benefits to the community,” he said.

The agreement finds no violation of law by LG&E and does not include fines or civil penalties. LG&E plans to close its main coal ash pond at Mill Creek.

Clean Power In Court: What It Means For Kentucky Tuesday, Sep 27 2016 

Kentucky, Ohio, and West Virginia are among the states challenging the Obama Administration’s Clean Power Plan, or CPP, in oral arguments Tuesday before the U.S. Court of Appeals in Washington, D.C.  

The CPP aims to reduce by about a third the power plant emissions of CO2, a greenhouse gas that scientists have identified as a major cause of climate change. The pollution reductions would come in phases over a little more than two decades. 

cpp explainerAlexandra Kanik | wfpl.org

Supporters, including 19 states, several scientific and conservation groups, and some electric utilities, say the CPP is a reasonable way to reduce pollution and help the country meet its international pledge to avoid dangerous levels of warming in the future.  

Opponents, including 27 states, several business groups, and members of the oil and coal industries, say the plan intrudes on state rights and would place undue hardship on regions that depend on coal to generate electricity. Coal produces more CO2 per unit of energy gained, making it the dirtiest of fossil fuels when it comes to climate impacts.

The case, known as West Virginia v. EPA, has already been before the U.S. Supreme Court, which voted 5-4 in February to stay the implementation of the CPP and send the case back to the appeals court.

Rather than have a small panel of judges hear the case, as is the norm, the U.S. Circuit Court made the unusual decision to have all the court’s judges hear the hours of arguments in the case. This “en banc” hearing will speed the almost certain appeal, and most court observers say the suit will likely be back before the Supreme Court next year.   

Under the CPP, each affected state would have to meet a given target for reducing CO2 pollution from power plants by the year 2030. The plan gives states flexibility in how to achieve those reductions. This interactive graphic helps explain the scale and timeline of emissions reductions that Kentucky would have to meet if the CPP goes forward. 

kentucky clean power planAlexandra Kanik | wfpl.org

Click the image to launch the interactive map

Banded By Fear: Filmmaker Sheds Light On Toxic Neighborhood In ‘Rubbertown’ Monday, Sep 26 2016 

Over the winter, while leaving an interview with a Rubbertown resident, documentary filmmaker Remington Smith was overcome by an odor that seemed to fill the neighborhood.

“It was this strong, acrid, plastic, burnt cough syrup smell,” Smith says. “I could feel it scratching my throat.”

He tried to call the Air Pollution Control District, but no one picked up, not even voicemail. For most people, a situation like this would probably be cause for concern. According to Smith, this is a frequent experience for many Rubbertown residents.

They call for help, and there’s no one there to answer.

That’s one of the reasons he decided to make a documentary about the unofficial neighborhood; Rubbertown is technically an industrial complex wedged between the Shawnee neighborhood to the north, Cane Run Road to the east, and the Lake Dreamland community to the south.

The area is next to a power plant and a toxic landfill site. And as WFPL reported in 2013, there is ongoing tension between industry and area residents — many of whom have “spent their lives worried about toxic emissions from Rubbertown.”

Smith’s film is fittingly called “Rubbertown.”

The 55-minute documentary follows resident Monika Burkhead as she tries to move her entire house to another county after suffering through years of regular leaks, spills, and occasional explosions at the nearby facilities — all alongside fellow residents reporting higher rates of cancer and respiratory illnesses.

Burkhead has been a resident of Louisville’s Riverside Gardens since 1975.

She became an environmental activist once she learned of the health risks of living in the shadow of LG&E’s smokestacks, the continued threat posed by the Lee’s Lane Landfill (where she has caught children swimming in a pond) and chemical plants nearby regularly having spills. Her daughter Jennifer developed a kidney stone disease, colitis and Crohn’s when she was 13, all of which she attributes to living in Rubbertown.

“How can you stick residential people in there like that,” says Burkehead in the film. “Just because we’re poor don’t make us daggone guinea pigs.”

Watch the “Rubbertown” trailer below. 

Smith wasn’t familiar with the Rubbertown area until he came across a piece in LEO Weekly about a proposal for a coal ash pond in 2010.

“I investigated further and found out about these other industries in the Rubbertown area in the West Side of Louisville,” Smith says. “From there I started on the project that eventually became this feature documentary.”

“Rubbertown” presents the perspectives of residents who vary in race and class, but all have something in common: they fear their own neighborhood.

Smith says he captured this feeling through a series of impromptu conversations, first-person explorations of the industrial sites, and a brush with the police (which he filmed covertly).

“One person has already asked me ahead of the film, ‘Did you get arrested in the police scene in the trailer’ and I’d be a bad pitchman if I gave that away,” Smith says. “But I think the more important aspect of the scene is what it would be like to try and independently monitor or protest some of the chemical companies.”

He continues: “There is a certain intimidation factor that comes out. Even if you aren’t trespassing — you’re just there to protest or collect an air sample — security from these facilities will come out or the police will show up, and there doesn’t seem to be a cause.”

Ultimately, Smith hopes “Rubbertown” will amplify the voices of neighborhood residents and lead to citywide awareness.

“Rubbertown” premieres Friday, Sept. 30 at Baxter Avenue Theater. More information about the documentary is available here.

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