Pollution from Bluestone Coke turns water black in Five Mile Creek in Birmingham, Alabama. (Photo: Nelson Brooke/Black Warrior Riverkeeper)


Wealthy Family Wants to Reopen Major Industrial Polluter in Alabama Despite Mounting Debts, Proposed Regulation and the Possibility of More Lawsuits

By Max Blau, ProPublica

The ultrawealthy family of West Virginia Gov. Jim Justice is looking to reopen a shuttered industrial plant that for decades emitted chemicals that have harmed historically Black neighborhoods in Birmingham, Alabama. But the family faces a series of new regulatory and financial hurdles — including a push by local regulators to throw the governor’s son in jail over thousands of dollars in unpaid penalties connected to the plant’s pollution. 

The century-old facility, which burns coal to make coke, a key ingredient for manufacturing steel, was the subject of a 2022 ProPublica investigation that showed how the family’s company and the plant’s past owners repeatedly failed to make necessary repairs. Without timely maintenance, Bluestone Coke released more cancer-causing chemicals into the air breathed by residents of three surrounding communities on Birmingham’s north side. In 2021, local regulators declined to renew Bluestone’s permit because of its repeated violations of air pollution regulations, but the plant kept operating as Bluestone appealed the decision. Months later, the company idled its coke ovens because of major equipment problems.

The Environmental Protection Agency recently proposed changes to the way toxic air pollution is controlled at coke plants. It would require Bluestone and other companies to install monitors along the fence lines of coke plants to detect whether high levels of benzene, a cancer-causing air pollutant found in coke oven emissions, are wafting into surrounding communities. If the monitors detect high levels of benzene, plant operators would have to identify the source of the pollution leaks and submit plans to bring the facility back into compliance.

EPA spokesperson Shayla Powell said in a statement that the rule would help to address “concerns by stakeholders about ground-level emissions affecting nearby communities.”

The proposal seeks to reduce the disproportionate amounts of coke plant pollution released in Black communities from Alabama to Indiana. For decades before Bluestone acquired the plant in 2019, nearby residents were exposed to some of the nation’s highest levels of contaminants in the air and soil. The air pollution had discolored the sides of houses, decimated property values and sickened residents. In recent years, a local environmental group called the Greater-Birmingham Alliance to Stop Pollution, or GASP, has monitored the air outside the Bluestone plant site and detected benzene levels high enough to elevate cancer risk for nearby residents.

The Southern Environmental Law Center has threatened to file a federal lawsuit next week on behalf of the Black Warrior Riverkeeper and the Greater-Birmingham Alliance to Stop Pollution, known as GASP. See story below.

The proposed regulation complicates the Justice family’s plans to reopen the plant. The company’s intended overhaul — estimated by experts to cost more than $150 million — would become even more expensive under the agency’s proposal.

Adrienne Lee, an attorney for the environmental law firm Earthjustice, said that the EPA had failed to comply with key requirements of the Clean Air Act Amendments of 1990 — and that failure, according to environmental advocates, enabled coke plants to delay renovations to their facilities. In 2019, the Sierra Club, GASP and two other environmental groups filed a lawsuit against the EPA for not having conducted reviews of coke oven emission standards since 2005. A federal judge later ordered the EPA to finish its review of coke oven regulations by May 2024.

Jane Williams, chair of the National Clean Air Team for the Sierra Club, said that the EPA’s proposal could “force facilities to manage leaks differently” and further protect people living near coke plants.

“If you insist on operating a jalopy, you need to meet modern emissions standards,” Williams said.

The proposed regulation also comes as Bluestone is facing consequences over millions of dollars in unpaid debts. A judge recently ordered that Bluestone refrain from “engaging in the conduct of business” in Birmingham until the company has paid the city more than $1 million in back taxes.

Separately, last December, Bluestone agreed to pay nearly $1 million to the Jefferson County Board of Health to settle alleged violations over the excessive pollution releases. But when Bluestone failed to make some of those payments, the board called for another judge to jail Jay Justice, Jim Justice’s son and the head of the company, until Bluestone paid.

In an August court hearing over the missed payments, Jay Justice testified that Bluestone had lost more than $2 million in the first half of the year. Overall, he said, the family’s companies have “huge, huge debt and huge cash flow problems.”

“I don’t think Bluestone Coke has, you know, $100,” he said. “I don’t think they have any money.”

Justice also testified that he and his family “still want” to “restart or rebuild the plant.” A Bluestone lawyer wrote in a court filing last month that the company has caught up on some of the settlement payments it owes to the health board. Because of those payments, the lawyer wrote, the board of health’s “continued insistence on contempt and specifically incarceration of Jay Justice is inappropriate.” (The judge wrote in an Aug. 17 order that Bluestone Coke is “in breach and has been in breach of some of its duties under the Consent Order.” But as of Aug. 28, he has refrained from ordering Justice to serve time in jail.)

Justice and his father, along with Bluestone lawyer Steve Ruby, did not respond to ProPublica’s questions. Ruby said in a statement to ProPublica last December that Bluestone has already invested “tens of millions of dollars” into a plant that was purchased “in a state of severe disrepair.”

Ahead of the EPA’s announcement of the proposed regulation, the agency faced pushback from a leading trade group that represents coke plant owners. The EPA had asked coke plant operators to install new air monitors along their plants’ boundaries and to collect data to inform changes to the coke oven regulation. According to documents obtained by ProPublica through an open records request, the American Coke and Coal Chemicals Institute contested some of the agency’s data collection efforts. The trade group urged the EPA to scale back certain testing requirements, in part because it felt those data collection efforts were “excessive.” The EPA rejected most of the ACCCI’s requests, the records show. (ACCCI President David Ailor did not respond to a request for comment.)

The EPA will accept public comments on the proposed changes to its regulation through Oct. 2. Powell, the EPA spokesperson, said that after public comment ends, the EPA plans to finalize the rule before the court-ordered deadline in May 2024.

In an EPA analysis of the proposed regulation’s economic impact on the country’s 14 remaining coke plants — which cites ProPublica’s past reporting on Bluestone — agency officials wrote that the price of complying with the rule changes was estimated to be lower for the Justice family than all but one of the other plant owners. Bluestone’s costs were also estimated to be a small fraction of the overall revenues the plant would bring if it reopened.

Sarah Stokes, a senior attorney in the Southern Environmental Law Center who works with GASP, said that the “amount of money it’s going to take to reopen the plant is astronomical.” She questions whether the Justice family will find a way to fund the overhaul before it can even install air monitors.

“The likelihood of them opening is very low,” Stokes said.

This story is reprinted with permission from ProPublica, a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive ProPublica stories like this one in your inbox.


Bluestone Coke Faces Another Lawsuit Over Pollution

A Push to Reopen Major Polluter in Black BirminghamTime is almost up for Bluestone Coke in Birmingham, Alabama, which faces another lawsuit in federal court next week after years of threatening the health of Black residents with its pollution.

The Southern Environmental Law Center warned the owners of Bluestone Coke on July 14, 2023, that they had 60 days to clean up water pollution from the plant and comply with the law or the groups would sue the company. The 60-day warning ends on Sept. 14. The center is representing the Black Warrior Riverkeeper and the Greater-Birmingham Alliance to Stop Pollution, known as GASP.

For years, residents of predominantly Black neighborhoods near the plant, including Harriman Park, Fairmont and Collegeville, were exposed to high levels of visible air pollution and noxious odors. Bluestone Coke is in the heart of Birmingham’s 35th Avenue Superfund site, where the Environmental Protection Agency has remediated more than 650 residential properties due to dangerous levels of industrial pollution in the soil.

Although Bluestone Coke is not operating, the plant is still discharging harmful and illegal pollutants. The plant has a permit to discharge wastewater into a tributary of Five Mile Creek, which flows into the Locust Fork of the Black Warrior River. However, the company has violated that permit more than 390 times and is not maintaining an onsite water treatment facility. Additionally, water sampling by Riverkeeper revealed pollutants in the discharge not allowed by the permit, including Barium, Strontium, and E. coli.

“Five Mile Creek is a beautiful spring-fed stream, but it has unfortunately been a dumping ground for industrial polluters for many decades due to inaction by environmental regulatory agencies,” said Black Warrior Riverkeeper Nelson Brooke. “Five Mile Creek should be safe for fish, wildlife and human recreation, but it is routinely fouled by polluted water from Bluestone Coke.”

“Bluestone Coke has consistently prioritized its own interests and greed over the health and well-being of north Birmingham families,” said GASP executive director Michael Hansen. “For more than a century, these communities were subjected to unjust, dangerous industrial practices. We must hold polluters like Bluestone accountable.”

“Closed or not, it’s Bluestone’s responsibility to keep contaminated water from flowing off the property,” said Sarah Stokes, senior attorney for the Southern Environmental Law Center. “Companies like Bluestone cannot pollute our air and rivers at the expense of Birmingham communities and businesses.”

Bluestone is owned by the family of West Virginia Gov. Jim Justice, who is currently running for U.S. Senate. Recently, the Justice Department filed suit against the Justice coal empire for failing to pay more than $5 million in civil penalties assessed by the federal government.

The Jefferson County Department of Health also cited Bluestone for violating its air permit by leaking hazardous emissions from coke ovens at the plant. In December 2022, GASP, SELC, Bluestone and the Jefferson County Department of Health agreed to a  consent decree ordering Bluestone to pay a $925,000 penalty to the Department — the largest fine issued in the agency’s 105-year history.

However, in May, Bluestone failed to pay more than $283,000 of these fines to the health department. The company owes an additional $1,000 every day a payment is late.