Comments Opposing the NJDEP Toms River Pollution Settlement

Media Contacts

Re: Proposed Natural Resource Damages (NRD) Settlement with BASF Corp. In the Matter of Ciba-Geigy Toms River, Superfund Site

On behalf of Environment New Jersey, please accept these comments regarding the proposed Natural Resource Damages Settlement (NRD) with BASF for the former Ciba-Geigy site in Toms River, a site that will forever be linked with the history of Toms River and the entire Ocean County community and more broadly, the history of corporate malfeasance and toxic contamination across the United State.

The Human Cost of Pollution in Toms River:

While the matter in front of the Department regarding the NRD from the original Toms River Chemical Company, owned and operated by Ciba Geigy, whose liability is fully owned by its successor company, BASF, and focuses on the nexus of injury at the original Toms River site – the hidden factory in the woods – the last few months of public outcry on the proposed NJDEP settlement have exposed old scars in the community. Specifically, the arresting testimony first heard late this January during the self-organized community town hall at Toms River North High School organized by Save Barnegat Bay and repeated at the NJDEP listening session this March at the same location of the community impact and human cost of the toxic pollution of Toms River drinking water wells. Toms River is arguably the most researched and fully documented cancer cluster case in the country with an exhaustive documented impact of elevated cancer risk in pediatric cancer cases released by the State more than 20 years ago and largely led by the endless advocacy of Sandra Gillick and her citizen brigade of Oceans of Love.

As NJDEP heard during both of those community forums and in countless comments was the human cost of that pollution. The core contamination of Toms River’s drinking water came from two direct sources — the discharge and contamination of Waters of the United States by Ciba Geigy and the slow-moving plume of pollution from thousands of barrels from Union Carbide that were dumped on the property and the unsuspecting owners of Reich Farms (who were stiffed in every possible way) by an unassuming waste hauler and fly-by-night operator, Nick Fernicola.

While certainly there was legal culpability by Union Carbide for not ascertaining exactly where their toxic chemicals were being disposed, there is a clear night and day difference in the actions that led to the contamination of Toms River’s drinking water – one by a rogue operator looking to make a quick buck over a period of several months in the early 1970s and the other an international chemical company that literally chose Toms River for the ease of disposal of its toxic waste product into the ground and surface water of the surrounding community – both on the bounds of the actual site and beyond. There is a clear distinction between these actions – both for the culpability for the cancer cluster and for the matter in front of the NJDEP with its proposed settlement with BASF which lifts all liability as a condition for an extensive restoration project on the site.

The question for NJDEP is not whether the proposed NRD settlement can provide justice for the community for the lives impacted but can it provide justice for the entire history of toxic pollution from Ciba Geigy to the groundwater on site, but also groundwater and surface water and oceans waters off site, the drinking water sources of the community and the ecology of the rivers and streams. This settlement is inherently narrow in scope, has clear flaws and does not provide the justice for the impacted ecology and Waters of the United States and we urge NJDEP to amend the settlement or to withdraw it entirely.   

Organizational Standing:

Environment New Jersey serves as a state-wide citizen-based environmental advocacy organization with principal offices in New Brunswick and Trenton and represents more than 80,000 dues-paying members and activists across the state, including across Ocean County. We are part of a larger network of 30 state-based environmental organizations, under the umbrella of Environment America that represent more than million citizen members and activists across the country. We were founded in 2006 as the new home of New Jersey Public Interest Research Group’s environmental work and through our prior environmental advocacy through NJPIRG, we were a litigant against Ciba-Geigy in 1991 for their infamous ocean discharge into the Atlantic Ocean, first constructed in 1966 when the Toms River Chemical Company started to see an alarming tests of mutagens in the drinking water for Toms River from the facility, so strong that plant workers could smell the elevated levels during home showers.

Support For Organizational Comments:

Environment New Jersey strongly supports the testimony and the submitted comments of Save Barnegat Bay, the community organization founded in 1988 to protect the Bay and its surrounding communities, Clean Water Action NJ and Michele Donato, a long-time attorney from Lavallette who also serves as counsel for Save Barnegat Bay. We are deeply indebted to the work and advocacy of Save Barnegat Bay and their extensive work on their submitted comments which provide incredibly strong arguments on the need to revisit and amend the settlement. We wanted to reiterate the importance of the request from Save Barnegat Bay asking for at least a 30-day period between when the Department issues written responses to public comments for a community non-profit organization such as Save Barnegat Bay to provide the Department with written replies to those public comment responses before the Department executes the proposed NRD settlement agreement if and when the Department finalizes a settlement.

We are also deeply indebted to the Pultizer-Prize winning work Toms River: A Story of Science and Salvation, which more than any other body of work clearly documents the culpability of the actions of Ciba Geigy in the Toms River community.

NJDEP Community Engagement and Comment Period:

The historic engagement of NJDEP through its NRD program with the impacted community closest to the nexus of injury and most directly impacted by the natural resources damages has been fraught. The roll-out of the BASF NRD proposed settlement by NJDEP early in the holiday season in December 2022 is likely the most egregious example, with no proposed public comment hearing and a 30-day public comment period that would have expired days into the new year. NJDEP deserves credit from learning from its disastrous roll-out, first by extending the public comment period to early February, attending the community-led forum by Save Barnegat Bay in late January and listening to residents and elected officials, and then extending the public comment period to early April 2023. It should be noted that BASF did not send a representative that identified themselves at either community forums in 2023, which certainly is a reflection of the importance that they give to community input.

Nexus of Injury and Community Engagement:

The intent of the New Jersey public is very clear on the matter of NRD settlements – a supermajority of New Jersey legislators voted to support a ballot measure in December 2016, which then passed by historic margins in November 2017, outlining the need for NRD settlement dollars to focus as close as possible on the site of pollution, the famed nexus of injury, and to ensure that pollution settlement dollars could not be raided to fill budget goals, a practice which the Murphy Administration quickly engaged in with raiding half of the proposed Exxon NRD pollution settlement to fill a FY18 budget hole.

While not explicitly stated in the language on NRD settlement, there is a clear responsibility by NJDEP for community engagement and outreach around the nexus of injury. Senator Bob Smith, Chair of the Senate Environment Committee, officially convened a NRD Task Force in 2018 to look more broadly at the NRD process and the settlement process and Environment New Jersey had the honor of serving as a co-chair of the Task Force and explicitly focused on community engagement in NRD settlements. The unanimous initial recommendation of the Task Force subcommittee was on a more collaborative and deliberative process on NRD settlements that included direct community input, feedback and even some role in decision-making.

Those recommendations obviously have not come to fruition with the proposed NRD Settlement for the current BASF site and it does beg the question – Did NJDEP ask the residents of Toms River what they wanted as part of a NRD pollution settlement? And if they didn’t (which as far as we can tell did not happen), why does NJDEP think the proposed settlement, billed as a restoration project and public park, will actually get buy-in from the community? How can an Education Center educate if residents feel the entire proposal was a sweetheart deal with the current corporate entity? What happens if the public shuns the restoration project and park in the same way that many towns residents still buy bottled water? How can the NJDEP be convinced that the conservation easement on the property will be in perpetuity, as outlined in the previous referenced comments? How can NJDEP be sure that the best settlement for the community – which depends on community engagement – if it never asked them? Clearly, BASF was the audience of record for the NJDEP, but it should be unthinkable for NJDEP not to engage in the community outreach, in the same manner that no communication with the responsible party would be unthinkable from the regulated entity.

History of the Site:

The history of the Ciba Geigy site, hidden behind its chain link fence and dense forest along Route 37, is not one of learned malfeasance, or of accidental discharges that grew into accepted cost of business. Ciba Geigy’s toxic legacy was an original sin that goes back to the 19th century and its Swiss homeland and an early game of cat and mouse with regulators, of creating fluorescent, colorful dyes that would generations later turn the Toms River into a multi-hued rainbow. Ciba’s original sin was the simply the prodigious amount of toxic remnants of its dye-making process, which led to constant relocations and expansions of its facilities in Switzerland. Its original American location, located in Cincinnati, which was founded in the 1920s (and where some Toms River Ciba employees started their careers and notably had higher cancer rates than Toms River only employees because of the more extensive exposure to Ciba’s toxic operation), discharged directly to the Ohio River, but the confluence of the increased pollution throughout World War II (and even prior) led to a similar game of cat and mouse with environmental regulators (roughly 25 years before the Clean Water Act). Increased fines for its toxic discharge led Ciba to search for a new, more forgiving location.

What led Ciba to Toms River? There were multiple smoking gun memos from corporate executives in 1949, and the attributes the company was looking for were clear – an area where the community would welcome them, an area that would allow for a massive and ongoing disposal of its toxic effluent, both on-site and off-site and natural conditions that would accelerate the disposal process. The sandy soils of the Pines and tannin in the Toms River – as well as a community built on chicken farming and looking for post-war expansion – were a magic industrial elixir that would prove too alluring for Ciba. The extreme formula of a community that would have natural attributes to hide the waste and an economic hunger for the jobs Ciba would provide would be too much to resist ahead of its 1953 dedication ceremony.

To be clear, Ciba’s hunt for a natural environment to dump in – even in the late 1940s in a generation before the Clean Water Act – was wildly out of line for corporate environmental practices of the time. The concept of literally discharging waste directly into soil was discredited as early as 1934 according to contemporary industrial guidebooks and played out directly in New Jersey as well. Another infamous polluting New Jersey corporate entity – American Cynamid – engaged in similar manufacturing processes as Ciba but incurred additional expense to have a more modern disposal system for its industrial byproduct. And once Ciba opened for business in 1953, it never altered this mentality of looking for the cheapest possible manner for waste disposal even at the cost of its own workers, its natural environment and the drinking water and groundwater of Toms River – both on site and off.

Ciba’s original sin and its wildly inaccurate estimates of the quantity of waste disposal were immediately apparent. Initial volume which was estimated in 1949 at only as a few thousand gallons a month to the actual reality of more than 1 million gallons seeping into the ground per day (this was in addition to another 1 million gallons that was directly discharged into the Toms River). Ciba was issued its operating permits in 1952 off these wildly inaccurate estimate and escaped serious scrutiny by NJDEP officials for close to three decades. The onsite treatment strategy of direct discharge into the ground was so effective within the first year that the quantity of toxic effluent directly impacted the drinking water fountains of Ciba’s facilities. The company had wildly underestimated the ability of groundwater plumes of pollution to travel – that would have tragic impacts for the neighbors along Cardinal Drive and the Oak Ridge Estates along the eastern end of the plant’s footprint and their drinking water. The bottomless pit described by workers would prove not to be actually bottomless.

The intent of the facility was to clearly discharge its toxic dye effluent on the cheap. The boastful original claims by the Ciba executives that the dye effluent would clean the brackish and alkaline Toms River are ludicrous in retrospect, but they fit a clear pattern by the company. Discharge toxic wastewater to the ground. Then build holding ponds and lagoons. Then discharge directly to the Toms River with rudimentary filtering that quickly killed the propaganda perch on the way to discharge to the Toms River. Below the plant were the drinking water wells at Holly Street. And ultimately the towns’ drinking water intakes relied on the Toms River. More than a decade after the plant’s opening, the long-term tenability of the Ciba relying on the Toms River as a dumping ground led to a crisis as the Toms River Water Company (the forerunner to NJ American Water) colluded in the summer of 1965 on maximizing output from the water companies’ wells during the peak summer demand to limit the levels of toxic mutagens in the town’s drinking water supply, an agreement was secretly reached through an MOU which wasn’t revealed for decades.

This was also the same moment that the fast-tracked construction of the Ciba pipeline through the heart of Toms River under the Barnegat Bay and out into the Atlantic Ocean at the border of Lavallette and Ortley Beach led to the seeming answer to Ciba’s prayers. The town’s drinking water, its well and water had been actively polluted for close to 15 years, but the culpability couldn’t be dodged anymore. The answer? Discharge into the coastal waters of the Atlantic Ocean – still the Waters of the United States – a solution which worked for the company for 18 more years when a pipeline rupture in 1984 reawaken Toms River to the presence of the pipeline – and what was in the pipeline – to a new generation of Toms River residents. This led to the summer of Greenpeace, described eloquently in Michele Donato’s comments, with a citizen uprising led by the activist organizing to discover and expose and shame Ciba and NJDEP on the contents of the pollution funneling out of that pipe into the Atlantic. Ciba still belligerently defended its practice with the infamous spin later in the decade that the mutagenic discharge was 99% water and a little bit salt. Despite the spin, Ciba knew exactly what it was discharging – and it knew the cost of modernizing its pollution disposal and treatment technologies. The original sin would never be atoned for by Ciba.

Flaws with NJDEP’s Proposed BASF NRD Settlement

Exclusion of Liability:

This cursory history of Ciba’s pollution control technology and mentality is critical to explore because it exposes the clear trade-off in NJDEP’s approach with this and arguably any negotiated pollution settlement. BASF, like any other purchasers of Ciba Geigy, knew full well that it was purchasing the ongoing liability, including the NRD liability at the Toms River Ciba Geigy site. BASF has a vested interest in reducing its liability for the site and arguably the most objectionable aspect of the proposed settlement is not the issues so expertly outlined in Save Barnegat Bay’s comments with the restoration project and proposed park and Education Center or the $100,000 penalty payment but is the absolution of liability for the current corporate entity of BASF. BASF didn’t cause the pollution and they clearly want to rid its moral and financial stain from their corporate balance sheets if not their corporate history and they see the proposed Plan A (and potentially NJDEP’s back-up plans for Plan Bs and Plan C) as their get-out-of-polluter-jail card.

As part of the settlement agreement, DEP will sign a release with BASF that promises DEP “fully and forever releases, covenants not to sue, and not to otherwise take administrative action against BASF and its corporate officers, directors, employees, predecessors, parents, successors, and subsidiaries, for any and all of the Department’s causes of actions for Natural Resource Damages arising from discharges at or from the Site.” The original sin for Ciba Geigy was always planning to dump its toxic effluent in the sany soils of the Pines and the murky waters of the Tom – the original sin of the settlement is the absolution of BASF’s inherited pollution liability.

Money For Nothing?

NJDEP’s reimagined and vigorous prosecution of NRD cases during the Murphy Administration has shown no compunction with going after corporate polluters – including some of the largest Fortune 500 companies and historic polluters like Exxon and DuPont/Chemours.  The anticipated legal and financial benefits are always tenuous, never promised and assumed to be lengthy – there is a substantial amount of risk involved in the cases, including patience for the wheels of justice to grind slowly and no promised payment. That being said, the assertions of NJDEP seems to portray a different attitude regarding BASF. Every trial is a risk, but NJDEP routinely sues successor companies through NRD litigation – this is not an uncommon practice.

Note, the proposed settlement agreement provides BASF a full release not only from NRD liability, but also PFAS liability, plus the opportunity for a future sale of the 790 acres of the site for likely more than $200 million, a possibility which is not out of the question through the settlement. Also note that the reference by NJDEP to the total cost of remediation at the site of more than $300 million since the 1980s by Ciba Geigy and BASF is not appropriate as all remediation costs cannot be calculated as NRD expenses, in the same way that the childhood cancer cluster payouts cannot be used as part of a NRD calculation. Finally, it should be noted that the BASF approved NRD restoration plan does not include the 250 acres of prime uncontaminated land which could easily be developed by BASF in the future – and is an obvious plum financial benefit for the company. Finally, while NJDEP conflate financial issues that are not related to the NRD settlement like the remediation costs, it did not disclose all monies paid and to be paid by BASF under the Spill Act, which requires public disclosure. The failure of NJDEP to provide more clarity around the lump sum payment that could be part of Plan C, financial assurance and the Operating and Maintenance fund are clear deficiencies. There should be a clear disclosure of what BASF stands to gain – or lose – through this settlement, but those answers are as murky as the Toms River.


Show Your Work, NJDEP

The most frustrating part of the current public hearing process – and likely equally frustrating for NJDEP – is the failure of the Department to provide a full analysis and disclosure of the documents used to formulate the proposed settlement. The NJDEP stated concern is the inherent risk about sharing all available information to all parties and a risk of the secret sauce of NRD allocation being exposed to all entities, including other corporate actors. The response is best formed through looking at NJDEP’s justification for Plan A where the “value of the NRD Settlement Project provided in this Settlement Agreement will offset the injuries to natural resources caused by the discharge of hazardous substances.” While the value of the NRD settlement is questionable, the injury to natural resources is once again as murky as the Toms River. Key documentation including the Resource Equivalency Analysis and the Property Conditions Report, which support NJDEP’s valuations, remain under wraps at NJDEP, including the Present Conditions Report. That Present Conditions Report was supposed to be attached to the settlement as a public exhibit – but it remains hidden. NJDEP shouldn’t be restricting this document. A core part of the NRD process is public release of core valuation documents, which is based on legal precedent of interpreting the Spill Act, in one of the most consequential NRD cases in state history – the Exxon settlement.

The Justice of the Spill Act & Exxon’s Legacy

The saga of the Exxon settlement – still only recently settled – and started in the early 2000s is an example of the length corporate polluters will go to escape judgement by NJDEP for the NRD damages that they have inflicted. The Exxon case was sprawling as it touched on the legacy of pollution at Linden, Bayonne and more than a thousand MBTE sites across the state – its history stretched back into the days of Standard Oil in the 19th century, the documentation of the NRD damage to wetlands was monumental. The case became notorious after Gov. Christie’s Administration worked to intervene in 2014 to push for a pollution settlement was argued to be pennies on the dollar and the ultimate pollution settlement of $250 million (halved after the budget raids by Gov. Murphy’s Administration in his first budget in FY18 and with the hefty legal representation fees for outside counsel. But why the original uproar in the first place? Because of a consultant estimate provided by the NJDEP of the extent of the damages for Exxon at $8.9 billion in NRD damages in 2006. This was fiercely contested by Exxon and ultimately assisted by the rush to judgment by the Christie Administration. Environment New Jersey was one of the litigants to unsuccessfully challenge this final pollution settlement, but not all was lost. The final decision sets out a very clear standard for NJDEP that they need to share documentation on the estimated NRD damage.

According to Judge Hogan in the ultimate August 2015 case, to outline NRD damages requires that NJDEP make “ at least an estimation of the projected total natural resource damages at issue in the case” so there is a “benchmark” to compare with proposed settlement. NJDEP, according to the Judge, needs to provide the “inputs” provided by the Department to arrive at the compromised settlement and that there needs to be sunlight for both the court (in this case) and the public to ensure that they are not “arbitrary, capricious, or unreasonable.” The settlement serves as the “output” by the Department because it is the result of the negotiated settlement with the responsible party. But that cannot be the only output by the Department that is shared with the public! Judge Hogan explicitly stated in this seminal 80 page opinion that the “benchmark” value for the proposed NRD assessment by the NJDEP needs to be publicly shared, as well as the “book end” value of the proposed value of the NJDEP settlement. For there to be object permanence, there needs to be a perspective. And for the public may not agree with the difference in valuation, but it needs to understand the valuation. This the root of Judge Hogan’s argument that the standard for a NRD settlement must be “fair, reasonable, in the public interest, and consistent with the goals of the Spill Act.” There can’t be a fair settlement without fully understanding the true value of the NRD at the site – and off, and this proposed BASF NRD settlement is fatally flawed without that inclusion.

Justice for Toms River

After two lengthy public meetings – one held by NJDEP and one held by the community – it is an open question of what constitutes true justice for Toms River, its residents and certainly for the corporate entity that now owns the massive legacy of Ciba Geigy’s corporate malfeasance at Toms River. That original sin will never be wiped away and the clear anguish and pain in the community will never be erased. And it’s foolish to think that a NRD pollution settlement will solve those injustices. The initial rollout of the NJDEP proposed settlement obviously exacerbated those generational tensions and they were on raw display in the January public hearing. NJDEP proved that it listened to the public and it deserves kudos for extending the public comment period and scheduling a listening session and public hearing that stretched to midnight. The true test for the NJDEP and the Murphy Administration will be whether they listen to the public concerns and the massive public comments submitted by the public and concerned organizations like those stated above, and alter the proposed settlement as described. The original environmental crime and sin was conducted by Ciba Geigy – this proposed settlement shouldn’t exacerbate that damage by not holding the current corporate entity of BASF to full account for the environmental damage of its predecessor.

Submitted respectfully,

Doug O’Malley

Director, Environment New Jersey

335 George Street, Suite 4

New Brunswick, NJ 08901

[email protected]