Sweet, Sticky Death
For residents in and near East Palestine, Ohio, life forever changed after the train derailment earlier this year. 20 of the 150 train cars derailed in the industrial accident resulting in explosions and releases of chemicals into the air and ground. Five of the derailed train cars carried vinyl chloride, a particularly toxic chemical used in manufacturing plastic products. Vinyl chloride is a confirmed carcinogen which can also cause dramatic short term adverse health impacts. To avoid additional explosions, Norfolk Southern undertook a controlled burn of the contents of a number of the derailed train cars which resulted in additional releases of toxic chemicals in the area.
We now stand about a month after the derailment. Despite the publicity stunt of government officials drinking the local water to prove its safe nature and promises to incinerate the soil from the derailment area, East Palestine, Ohio simply will not recover from this situation. Notably, the officials did not drink the water at the nearby river where dead fish began washing up on the shores. Impacts on health may be quickly recognized and diagnosed. Longer-term effects may not be so easily tied to the accident. Many residents now confront a lifetime of medical monitoring and ceaseless worry about the well-being for themselves and their families.
Not as significant as personal health issues, but certainly dramatic will be the negative property impacts. East Palestine is now stigmatized as synonymous with a cancer-causing train wreck. Houses in East Palestine will not sell. Those with their primary savings tied up in their house values will lose most, if not all. Businesses in East Palestine will fail due to the accident. New businesses will not pop up to replace shuttering shops. The city’s tax base will shrink making it exponentially more difficult for local government to provide relief. I predict that the site of the derailment will be made into a municipal park in about ten years.
My years as an environmental litigator addressing toxic spills allows me to put forth this grim blueprint. If questions remain as to the extent and duration of this stigma, ask the residents of Livingston, Louisiana. A 1982 train derailment of 36 cars carrying similar toxic chemicals resulted in releases of toxic substances to the environment compounded by a controlled burn of chemicals in other derailed train cars. The Livingston residents endured decades of medical monitoring and testing. Groundwater monitoring wells remain in place some 40 years later. While houses are difficult to sell in Livingston due to this stigma, there is a nice municipal park located at the scene of the industrial accident.
What caught my eye in following the East Palestine derailment situation was EPA’s description of vinyl chloride released to the environment. EPA advised the residents that vinyl chloride could have a “mild, sweet odor.” This simple description immediately sent me back to my years spent in Boston, Massachusetts. Of course, I am referencing one of the “sweetest” industrial accidents in American history: The Great Molasses Flood of 1919.
On January 15, 1919, a 2.3 million gallon tank filled with molasses exploded resulting in a 40 foot high wall of molasses racing down Boston streets at 35 miles per hour. Nothing but debris remained of the 50 foot high, 90 foot diameter steel tank. The explosion of the tank, located on the water’s edge in Boston’s North End, killed 21 people, injured another 150, and resulted in the loss of countless horses. The wave of molasses swept buildings off their foundations and crushed other structures in its path. As reported in the Boston Post:
“Molasses, waist deep, covered the street and swirled and bubbled about the wreckage. . . . Here and there struggled a form – whether it was animal or human being was impossible to tell. Only an upheaval, a thrashing about in the sticky mass, showed where any life was. . . . Horses died like so many flies on sticky fly-paper. The more they struggled, the deeper in the mess they were ensnared. Human beings – men and women – suffered likewise.”
A surviving child’s experience was subsequently captured in an article in the Smithsonian:
“Anthony di Stasio, walking homeward with his sisters from Michelangelo School, was picked up by the wave and carried, tumbling on its crest, almost as though he were surfing. Then he grounded and the molasses rolled him like a pebble as the wave diminished. He heard his mother call his name and couldn’t answer, his throat was so clogged with the smothering goo.”
A newspaper article quoted an unidentified witness in describing the wall of molasses as “sweet, sticky death.” The editor blew it in not using that quote as the headline.
Clean up crews used salt water wash from a fireboat to wash away the molasses as well as sand to absorb it. Clean up of the North End took months. Portions of Boston Harbor remained brown with molasses well into the summer. Clean up crews, residents, and sightseers tracked the sticky molasses from the North End across the Boston area. Platforms and trains on the “T”, Boston’s subway system, were described as “sticky” for months after the accident.
But what caused the tidal wave of molasses?
Purity Distilling, the company which owned the tank, immediately claimed that Italian anarchists blew up the tank as alcohol produced from the molasses would be used to make munitions. Why wait for an investigation? In fact, why wait for rescue efforts to be completed or clean up operations to commence? Why wait for funeral services? Why bother inspecting the remains of the tank or evaluating the circumstances before going public with conclusions? Instead, Purity Distilling turned to the well-worn corporate playbook of placing blame anywhere except on itself combined with a public relations push to cast unwelcome North End Italian immigrants in a poor light.
In this instance, a surprising group undercut the Purity Distilling corporate greed machine. Was it a group of people seeking to assist the powerless and voiceless North End Italian immigrants? No. Was it a collection of government officials protecting those they had vowed to serve? Nope. Was it a flock of ministers, priests and other religious leaders caring for the injured and serving the families of those who lost their lives? Not even close. The group which stood up to Purity Distilling and outmaneuvered the corporate gamesmanship was a gaggle of lawyers.
These lawyers rode the wave of the Great Molasses Flood to the highest court in Massachusetts changing the law applicable to class actions and expanding the court’s power to redress corporate conduct. The lawyers successfully argued that class action proceedings should extend to the type of mass tort victims such as those killed or injured by the Purity Distilling tank explosion.
Importantly, along the way in the trial court, these lawyers convinced the judge to appoint an independent auditor to determine the root cause of the tank explosion. OK. Lawyer greed outweighs corporate greed, or at least stays one step ahead of corporate greed.
As an initial matter, the auditor determined that Purity Distilling knew it had a problem with the molasses tank. Installed in 1915, the tank leaked so continuously that Purity Distilling painted the tank brown in an effort to disguise the leaks. Nearby residents regularly collected molasses leaking from the tank for their own use.
The auditor further discovered stress cracks in the steel at the base of the tank. Any one of these stress cracks could have reached failure causing the explosion. In 2014, nearly 100 years after the accident, forensic engineers analyzed tank remains determining that the steel should have been twice as thick as the steel used in the tank walls. Standards for tanks were lacking in 1915, but the science existed and it was known – or at least knowable – that the tank, as designed and constructed, could not hold the weight of a fully loaded tank.
Contributing also to the cause were the winter weather conditions and Purity Distilling practices. The day before the tank explosion, the temperature in Boston was two degrees F. The temperature rose rapidly to 40 degrees F on January 15 which would cause the molasses already in the tank to expand. In addition, the tank was then filled from a ship’s cargo of molasses. The ship crew heated the molasses in the cargo hold to assist with pumping the viscous fluid thereby further expanding the molasses volume.
Those Italian anarchist immigrants appear rather scientifically adept with tremendous metallurgical knowledge to create those conditions resulting in explosion of the 2.5 million gallon tank.
I conceptually understand that immediate release of more than 2 million gallons of any liquid or semi-liquid material will cause a catastrophic scenario. Nonetheless, I have difficulty visualizing molasses, in any amount, traveling at 35 mph. I turned a half filled jar of molasses from our pantry on its side and patiently waited for the molasses to travel the length of the jar. Admittedly, honey moved even slower in this carefully planned scientific experiment. Yet, I still do not recall anyone ever exclaiming to be “Fast as Molasses”. Indeed, molasses’ reputation is just the opposite.
I digress. The Great Molasses Flood of 1919 left the North End in Boston with its own stigma which lasts to today. Bostonians claim to be able to smell a sweet molasses odor in the North End, especially during the warmer summer months.
While I was aware of this tale while I lived in Boston decades ago, I never experienced the molasses effect. I confess that my many trips to the North End were culinary adventures and not seeking molasses cookies. The North End is the “Little Italy” section of Boston. Each restaurant is outstantding both in comparison to the next and on its own. The pastry shops offer incredible delicacies while enjoying an espresso. The aromas on and around Hanover Street in the North End offer many and varied welcoming smells, but among them is not molasses.
The other visits to the North End included the obligatory trips to the Old North Church (One if by land, two if by sea. . . .) and Paul Revere’s house. While removed from restaurant row and the culinary smells, these other areas in the North End again did not present any evidence of molasses. To this day, the molasses stigma continues.
These man-made disasters with long tail stigmas can serve as lessons in the estate planning arena. If you proceed with no estate planning or rely on a simple will, your estate may be in a sticky situation in trying to address assets which become stigmatized in their own way. I am fairly confident that homeowners in East Palestine never thought that their homesteads may become a liability rather than their largest single asset. Those “assets” may become tied up for months or years in probate proceedings or in litigation with lenders or others after the owner passes. During those periods, the estate will have carrying costs for the properties and the properties may fall into disrepair. Loved ones may be saddled with a new, large liability rather than an expected inheritance.
Stigmatized assets are not limited to houses near train wrecks or those covered by a gooey mass. The recent revelations about cryptocurrencies illustrate how an investment darling can quickly become a nightmarish date. The ability to quickly exit from an asset class may mean the difference between a modest financial hit and total loss.
A proper estate plan cannot undue the stigma or change economic conditions, but it may provide flexibility in how the matters may be addressed. If within a proper trust structure and if the trustee has been granted proper powers, the asset which becomes a liability may be able to be addressed quickly and without judicial oversight. Trustees should have the power to address unproductive assets. That may mean sale at a loss or even abandonment of property. The trustee can determine the best course of action and act now rather than be stuck in expensive and time consuming process or litigation before acting.
Circumstances beyond our control may force change upon us. A proper estate plan cannot anticipate a 40 foot wall of molasses upending your life, but it can include flexibility to ensure that your estate does not become stuck in the aftermath of a disaster.
And the former Purity Distilling tank site in the North End? It is now a municipal park. You have to look hard, but you can find a small plaque at the site of the tank itself. Good luck to those in East Palestine. At least you have a nice municipal park in your future.