Kentuckians Take Distilleries To Court Over Whiskey Fungus

August 29, 2012
Kentuckians Take Distilleries to Court Over Black Gunk
By MELENA RYZIK
LOUISVILLE, Ky. — The sooty-looking black gunk has been here for as long as anyone can remember, creeping on the outside of homes, spreading over porch furniture, blanketing car roofs, mysterious and ever-present.

It was pollution, residents speculated, or maybe something to do with the industrial riverfront. But it turns out the most likely culprit is Kentucky’s signature product, its liquid pride: whiskey, as in bourbon whiskey, distilled and bottled across the city and nearby countryside.

In 2007, researchers published a scientific study about Baudoinia, a newly identified type of fungus. Naturally occurring, Baudoinia germinates on ethanol, the colorless alcohol that can evaporate during fermentation, making the area around whiskey-aging warehouses a prime breeding ground.

News of this whiskey fungus soon rippled across spirit-producing communities from Cognac to Canada — a mystery solved, and an opportunity found.

In June, home and business owners in and around Louisville, part of the Kentucky Bourbon Trail, filed class-action lawsuits in federal and circuit courts against five major distilleries, charging property damage and negligence. In September, with the help of lawyers in Britain, the plaintiffs’ Louisville lawyer, William F. McMurry, plans to bring a similar suit in Scotland, where the fungus is so rampant that it almost seems like part of the architecture.

“Every distillery that we’ve tested has had it, as far as I know,” said James Scott, the University of Toronto mycologist who helped identify and name Baudoinia.

Mr. McMurry wants the courts to order distillers to simply “stop off-gasing ethanol,” he said, adding: “This is not going to affect their bottom line and the flavor of whiskey.”

Distillers beg to differ, saying they are not liable for a natural growth that, not incidentally, has covered their own buildings for centuries. (“Warehouse staining” was observed in Cognac, France, in 1870.) And even for plaintiffs, the case has proved divisive in a place where whiskey is a main economic engine, a tourism booster and a way of life.

“Some people say, ‘Well, the distilleries were there before you were, so what’s the big deal?’ ” Michael Mills said, sounding resigned as he stood on his deck, his wooden furniture dotted with black mold. He and his wife noticed it not long after they moved into this home they had built for their retirement in a leafy suburban subdivision in Frankfort, Kentucky’s capital.

Their neighbors had it, too, but they were mystified. “We didn’t know what it was to even complain about,” said Mr. Mills, a former engineer in the state’s Department for Environmental Protection.

The dark residue is visible throughout neighborhoods on days when the air carries a slight yeasty smell from nearby whiskey warehouses and on days when it does not, in heat and in damp. It is difficult to get rid of, the lawsuit alleges, returning after repeated commercial cleanings.

“For it to turn black and get discolored, it takes less than a year,” said Kayleigh Count, a health aide from Frankfort, about 35 miles outside Louisville. Like many in this area, Ms. Count said she was “raised by the distilleries and the bourbon industry.” Her father, uncle and two aunts worked in whiskey production, she said, so being a plaintiff in the suit is hard. “It feels like you’re going against something that the family’s done all their lives,” she said.

The Louisville distilleries named in two suits — Brown-Forman, Diageo and Heaven Hill, manufacturers of Woodford Reserve, Bulleit Bourbon and Elijah Craig — plan to “vigorously contest” the claims, company representatives said.

“While we are sympathetic to the concerns of the plaintiffs,” the companies said in a joint statement, “the blackening of some buildings and other structures is due to a naturally occurring common mold that is found widely throughout the environment, including in areas unrelated to the production of whiskey. The companies involved do not believe that they have caused any harm to the plaintiffs or their property.” (The two distilleries named in the lawsuit in Frankfort, Buffalo Trace and Jim Beam, had no comment.)

The fungus does occur elsewhere, Dr. Scott said; commercial bakeries also produce enough ethanol for it to thrive nearby. It does not need much: less than one part per million in the air, indetectable in a sniff test. As whiskey is barrel-aged, about 4 percent of the alcohol evaporates each year, which can add up to tons in a place like Louisville. (Distillers call this evaporated amount the “angels’ share,” as in the angels’ portion of this heavenly elixir.)

Baudoinia also likes damp climates — “In Spain and in Portugal, you don’t tend to get nearly so much of it as in Scotland,” Dr. Scott said — collecting especially where there is morning dew. Though it avoids metals like copper and zinc, it is otherwise quite hearty, popping up a mile or so from whiskey warehouses, even on fire hydrants and stop signs.

“It seems like it can grow on just about anything,” Dr. Scott said. And once it has a whiff of ethanol to set it off, it can feed on anything, too. “It’s got a very broad nutritional ability,” he said. “I can’t think of a carbon source that we tried it on in the lab that it couldn’t use.”

Dr. Scott, whose discovery of the fungus was detailed in a 2011 article in Wired magazine, continues to research it with colleagues through his private lab, which took samples for the lawsuit.

So far, there is no evidence that whiskey fungus, which has lived in the environment for eons (Dr. Scott estimated it developed in the Cretaceous period), causes health problems in humans or animals, though it may impede plant growth by obstructing light when it covers leaves.

Mostly, though, it can just look nasty.

In Frankfort, Angela Conway had a clear plastic roof over her porch. The fungus, she said, has made it entirely black. In Louisville, the vanilla-colored siding of Joe Billy’s tidy single-story home is dotted with unsightly gray spots. Bruce Merrick, who owns a stadium seating company here, has sooty mold covering his outdoor bleacher samples.

“It’s literally taken the clear coat of paint off my car,” Ms. Count said. “Even washed, it doesn’t look clean.” Using industrial-strength solvents, she hand-washed the exterior of her home annually, only to see the shadowy splotches return.

“It’s really disheartening to work hard for something and feel like it beats you all the time,” she said, adding: “All my family is retired from the distillery, so it’s not like I can be mad at the distillery. I just want them to use a modern approach, and keep the air clean.”

Mr. McMurry, a personal-injury-law crusader who once brought a class-action suit against the Vatican for its role in abuse in the Roman Catholic Church, believes the distilleries can borrow a technique that California wineries use to prevent the escape of the “angels’ share” and stamp out Baudoinia.

But even if it is not actively spreading, its mark may remain, Dr. Scott said. Baudoinia belongs to a class of fungi that is almost prehistorically tenacious.

“We call them extremophiles, that grow in the extremes of life in our planet,” he said. “It’s not clear to me, if you were to remove the distillery or the aging warehouses entirely, if you could even get rid of it.”

NYTimes.com