The Kentucky Court of Appeals has revived a lawsuit claiming vapors from Jefferson County bourbon warehouses are causing a black fungus to form on nearby houses, businesses and vehicles.
The Courier-Journal reports a lower court dismissed the suit, finding the federal Clean Air Act does not allow the plaintiffs to sue in state court over air quality nuisance issues. On Friday, a three-judge appeals court panel unanimously overturned that decision, sending it back to the lower court for a resolution.
The lawsuit targets Brown-Forman Corp. and Heaven Hill Distilleries. A joint statement from the two companies says they are disappointed in the decision and considering an appeal to the Kentucky Supreme Court.
Bruce Merrick and his Dant Clayton Corp. are among the plaintiffs in the lawsuit. Dant Clayton makes and installs stadium seating. But Merrick says the whiskey fungus is destroying his inventory.
In a matter of months, aluminum seating samples that can cost $25,000 to make are so covered with black spots that they can’t show them to prospective clients, Merrick said.
The fungus also eats away at buildings on the company’s 23-acre property.
“It’s a nuisance, it is time consuming and it’s expensive,” Merrick said.
The fungus, baudoinia compniacensis, is naturally occurring and normally slow growing.
But in ethanol-rich environments, such as those surrounding whiskey-aging warehouses, the fungus becomes uncharacteristically fast growing, resilient and adaptive.
Heaven Hill and Brown-Forman have previously said they were sympathetic to the concerns about the fungus, but that the fungus was natural and also found in areas not related to the production of whiskey. They have also said that an aging process in warehouses with open windows contributes to the flavor of their products.
In 2013, Diageo Americas Supply Inc. agreed to move 185,000 barrels of whiskey after it was cited by the Louisville Metro Air Pollution Control District and threated with $10,000-a-day fines. The company agreed to move some of the barrels to another facility about a half mile away and others to Tennessee.
Attorney William F. McMurry, who filed the lawsuit against Heaven Hill and Brown-Forman, said the district then lost “any fire in the belly” for going after other firms.
“This is something that could have, would have, and should have been done, but for politics, politics and more politics,” McMurry said. “The district picked on the international corporation, but sidestepped the same actions against the good ol’ boys of Kentucky, Brown-Forman and Heaven Hill.”
District spokesman Tom Nord said district officials felt they had a “resolvable situation” with Diageo and declined to comment on other distillery operations.
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