Toms River (18 page)

It was not surprising that the condition of the air and water in Toms River had escaped the attention of even alert citizens like the Gillicks. Some of the contamination problems were invisible and others were masked, such as the nighttime smokestack emissions. Behind its thick curtain of trees, Toms River Chemical was spending as little money on pollution control as it could. The company’s executives had been explicit about this in 1968, according to an internal memo describing their reaction to a report on various waste treatment options: “After review of this report by top management, the policy of making these expenditures only as fast as absolutely necessary was stated.”
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Environmental upgrades were “all money losers,” as one manager
put it, and in the early 1970s Toms River Chemical was making more money than ever. In 1973, the company produced a record 131 million pounds of dyes, resins, and other chemicals—up from 78 million in 1963. Fourteen hundred employees, also a record, toiled in thirty buildings on the huge factory complex, which was now owned by a new corporate entity: the newly merged Ciba-Geigy Corporation.
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For all the growth and change, however, the company’s waste-handling practices had changed very little, except that most of its wastewater now went into the ocean instead of the river. Toms River Chemical still sent liquid waste to unlined lagoons and dumped almost nine thousand drums a year “over the edge of a cliff” and into an unlined pit, spilling their toxic contents.
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Until the state finally put a stop to it in 1970, workers still ignited solvents in “smudge pot” standpipes and burned an “almost unbelievable array” of waste chemicals in an archaic tepee-style incinerator.
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The company actually had two tepees, but one blew its top, volcano-style, when a drum inside it exploded. “Now they have a topless tepee,” observed a bemused contractor.
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There were other accidents, too, including three fires at the drum pit in 1968 alone.

In a brutally frank presentation to company managers in 1969, a newly arrived engineer named William Bobsein detailed all of the pollution-related messes at Toms River Chemical. Sixteen years later, Bobsein’s career would take a turn for the worse, but back in 1969 he had inherited James Crane’s role as in-house doomsayer, a teller of hard truths who lacked the power to fix the problems he saw. Tougher state regulations were coming soon, but the company was unprepared for them, Bobsein told the managers, punctuating his toxic tour of the plant with what he called “dirty pictures”—color slides of “drum mountains” and “drum cemeteries … despoiling the countryside” plus rooftop photos of “intense smoke” emitted by the factory’s many stacks.
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Few residents of Toms River knew or cared about a litany of environmental ills they could not see or even smell most of the time. But in the world outside, attitudes were changing. The first Earth Day, April 22, 1970, was an epochal event, attracting twenty million Americans to hundreds of rallies and rocketing environmental protection
from obscurity to a top-tier national concern. In Toms River, the events were benign—schoolchildren went on hikes and picked up litter—but the New Jersey legislature marked the date by creating a Department of Environmental Protection, which assumed the pollution-control duties formerly—and indifferently—performed by the state health department. An even more important change was that Congress and President Richard Nixon, mindful of public opinion, suddenly became very aggressive about asserting a federal role in combating pollution, a task that had almost always been left up to the states and cities.

It was a drastic shift. Major corporations like Ciba were accustomed to running over and around local regulators, who could not hope to match the companies’ legal and technical expertise or their financial resources. Before public opinion began shifting in the 1970s, mayors and governors were much more likely to side with corporations than with their own regulatory agencies in disputes over pollution. Even in a state like New Jersey, where antipollution laws that included potential criminal penalties had been on the books for decades, environmental violations had always been considered to be a matter for civil negotiation, not criminal prosecution. This was the milieu in which Toms River Chemical had thrived for so long.

The brand new U.S. Environmental Protection Agency, however, would be much more difficult to stiff-arm. Its newly hired lawyers and engineers were specialists with advanced technical training. Many were also idealists who were less subject to political pressure than their state and local counterparts. They were from out of town, and their priority was to establish the primacy of federal environmental law, not to protect local jobs. Toms River Chemical began gearing up for conflict, creating a nineteen-member department to oversee pollution issues and conducting “teach-ins” on environmental compliance for more than a thousand employees.
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EPA officials paid their first visit to the Toms River factory in July of 1971; they brought a lawyer to show that they meant business. Congress had not yet given the new agency authority to regulate water discharges, but Nixon had already announced that the EPA would begin enforcing a legislative relic known as the Refuse Act of 1899.
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This dusty law had been mostly ignored for seventy-two years; its breathtakingly broad language forbade the discharge of “any refuse matter of any kind or description whatever” into navigable waters or their tributaries without the permission of the U.S. Army and its Corps of Engineers.
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When company lawyers trotted out their shopworn claims that Toms River Chemical was already doing all it could to cut its discharges, EPA officials pointed out that other manufacturers were doing better.
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And when the company asserted that its discharges were legal, the agency pointed to the Refuse Act of 1899.

Finally recognizing that the regulators were serious this time, Toms River Chemical tried to head off a prosecution by promising improvements, but by 1972 it was too late. Utilizing the Refuse Act, the United States Attorney’s Office in Newark had just wrapped up a successful civil prosecution of more than a dozen New Jersey towns that had been dumping raw sewage sludge into the ocean.
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Now the same federal prosecutor, Carl Woodward III, was turning his attention to the only privately owned ocean outfall line in the state. Subpoenas soon arrived at the offices of Toms River Chemical, summoning its executives to testify before a grand jury in Newark. “It was a very big case, but it wasn’t difficult; the company had documented everything it did and we subpoenaed those records,” Woodward remembered many years later. On July 13, 1972, the grand jury handed down an indictment charging Toms River Chemical with 206 violations of the Refuse Act for discharging chemical waste into the Atlantic Ocean and the Toms River. Each of the 206 counts (one for each day in 1971 and 1972 the EPA had detected a violation) was a misdemeanor carrying a maximum fine of $2,500; if Toms River Chemical was convicted on all counts, the maximum fine of $515,000 would be the largest environmental penalty in New Jersey history up to that point.

The indictments were not what they seemed, however. The EPA and the U.S. Attorney’s Office could have gone to court to try to get an injunction forcing Toms River Chemical to clean up its discharges immediately. But even as early as 1972, the EPA was having second thoughts about its initial strategy of treating violations of laws like the Refuse Act as straightforward crimes. At the end of the year, Congress
overrode President Nixon’s veto and gave the EPA authority to regulate wastewater discharges via a new law that came to be known as the Clean Water Act. Like the Refuse Act, which it essentially superseded, the new law banned discharges into navigable waters without a permit, but the permitting process was much more complex and bureaucratic. So, instead of seeking an injunction, the EPA began years-long negotiations with Toms River Chemical over the terms of its Clean Water Act permit. All the while, the prosecution was held in abeyance, and the company continued to operate as it always had—only more so. In 1973, a year after the indictments, production and emissions were at record levels.

The obvious solution was for Toms River Chemical finally to replace its unlined lagoons with a real wastewater treatment system—specifically, an activated sludge plant of the design the company had been refusing to build ever since the late 1950s. Activated sludge plants, which used microbes and oxygen to reduce the organic content of sewage, had been in use for more than fifty years, but they were also expensive: Toms River Chemical’s would eventually cost more than $15 million. Properly designing and building such a plant and customizing it to the factory’s unique wastes would take three years, company executives insisted. They said essentially the same thing to state regulators, who were finally pushing for a new incinerator and a lined landfill.

When the EPA broke off its negotiations with the company in 1974 and issued a draft permit that would, for the first time, limit the company’s discharges into the river and the ocean, Toms River Chemical immediately appealed. The proposed limits were too strict and the two-year phase-in was too short, the company argued, eventually getting its way.
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The indictments were moved to inactive status and finally dismissed without a fine or admission of guilt. On a rainy September morning in 1977, in the presence of Governor Brendan Byrne and a bevy of local politicians who heaped praise on the company, Toms River Chemical dedicated its new wastewater treatment plant. It began operating the following year, as did the initial section, Cell One, of the company’s first-ever lined landfill. It had only taken twenty-five years.

By and large, the people of Toms River reacted with a collective yawn. Most considered the ocean to be an acceptable place to deposit pollution, especially now that their own sewage was also going into the Atlantic via municipal wastewater pipes and sludge barges. Back in 1972, the news that the largest private employer in Ocean County had been indicted on criminal charges inspired just one article in the
Ocean County Observer
, the local daily newspaper. That article, which emphasized the “astounded” reaction of company officials, was quickly followed by an editorial defending Toms River Chemical as a “good neighbor” that “adds heavily to our locality’s economy.”
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Many people in town were at least vaguely aware of the company’s lackadaisical approach to pollution control, but there was still no public evidence that anyone in the surrounding neighborhoods had been hurt as a result. (The contamination of the Holly Street wells in the mid-1960s was still a secret.)

The situation was very different a little more than a mile northeast of the factory, however. There, the residents of a struggling, semi-rural neighborhood optimistically named Pleasant Plains were drinking industrial chemicals in their tapwater. And this time, it would not remain a secret.

Unlike many other parts of the fast-growing town, Pleasant Plains was not full of subdivisions and shopping centers catering to the hordes of affluent newcomers. Its residents were mostly laborers and farmers; they were old-timers who got their water the old-fashioned way. There were no water mains in Pleasant Plains, but no one minded because you could dig your own well and find plenty of groundwater just twenty feet down—forty at the most—and use as much as you wanted, free of charge.

The first Pleasant Plains residents to notice, in early 1974, that their water tasted and smelled bad were the owners of three properties on Route 9. There was little doubt about the cause: The three parcels were just a few hundred feet south of Reich Farm, the old egg farm Nick Fernicola had used as a dumping ground in 1971. Almost two years had passed since the work crews hired by Union Carbide had supposedly cleaned up the site, carting away five thousand leaky
drums and bulldozing the trenches that Fernicola had used as crude repositories for toxic waste. The neighbors had not forgotten, however. “We all knew it was coming from the Reich farm,” recalled Ernest J. Nagel, who owned a butcher shop on Route 9 with his father. The shop’s water smelled, as did the water in several other nearby businesses. In the spring of 1974, the county’s health coordinator, Chuck Kauffman, decided to check the entire neighborhood, sending the collected water samples to the only local facility with the technical know-how to analyze them for organic pollutants: the Toms River Chemical Corporation. The company, which for once was not the suspected cause of a local pollution problem, was happy to assist. Its chemists found unnaturally high levels of organic compounds in almost every Pleasant Plains drinking water sample they tested. The EPA confirmed the results, identifying two chemicals in the drinking water: toluene and styrene, both of which had been dumped at Reich Farm. Following up on a tip, state and county officials also made another trip to the dumpsite and found plenty of evidence that Union Carbide’s two cleanups in 1972 had been shoddy. There were still fifty-one drums in plain sight, and the odor was still so strong that the state in mid-1974 ordered Union Carbide to come back a third time and remove a thousand cubic yards of chemical-soaked earth along with the additional drums.

That same summer, state environmental regulators took a drastic step: They directed the town to condemn 148 wells within a semicircle extending about a half-mile south, east, and west of Reich Farm. At the time, it was the biggest well closure in the history of the state. Residents were told to plug their wells with cement and either to buy bottled water or to get it from six portable water tanks dispatched to the neighborhood by the Army National Guard. A school, North Dover Elementary, was just outside of the condemnation zone, but the principal decided not to take chances and ordered her kitchen staff to stock up on bottled water in time for the start of classes in September. The crisis did not ease until November, when the Toms River Water Company, after weeks of wrangling with the town over costs, finally extended its pipes into Pleasant Plains, allowing affected homes and businesses to tap in.