Update, May 31, 2024: Eight months after this story was published, the Environmental Protection Agency announced a final rule that requires Bluestone and other companies to install air monitors along the fence lines of coke plants.

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 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.

West Virginia Gov. Jim Justice has vowed that his family would “do the right stuff” regarding the problems at the Bluestone Coke plant. Credit: Justin Merriman/Stringer/Getty Images

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.