'There is still fear': Toms River residents slam settling suit over Ciba polluted land

TOMS RIVER - The state faces an uphill battle to convince residents that a proposed settlement that would preserve 1,000 acres of the former Ciba-Geigy Superfund site is a good deal for Toms River.

That much was clear following a five-hour public hearing held by the New Jersey Department of Environmental Protection Monday night, at which dozens of residents, environmental activists and public officials expressed skepticism about the plan. Their comments reflected the deep scars Ciba-Geigy's years of industrial contamination have left on the community.

DEP Deputy Commissioner Sean Moriarty, who grew up in Toms River, stressed at the beginning of the meeting that he believed the settlement was "ultimately a good deal for the people of Toms River," noting that it permanently preserves 1,000 acres of land that could potentially be developed.

"I wouldn’t stand here tonight in front of a place that I still say that I am from, if I didn’t personally believe in the settlement," Moriarty said. He said the proposal, which the state negotiated with BASF, which now owns the Ciba land, would turn "a longstanding environmental liability into an environmental asset."

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The DEP proposal would settle a 2007 lawsuit that accused Ciba-Geigy of damaging the state's natural resources by polluting the nearly 1,400-acre Toms River property through its industrial dye- and resin-making operations.

Residents, many of whom related stories of how they, or their relatives and friends, had suffered health impacts they believe were connected to Ciba's long history of chemical dumping, chastised the DEP for not being more transparent about the settlement talks. Others said they believed BASF is getting a much better deal from the settlement than the people of Toms River.

"I think the frustration comes from lack of trust," said long-time Toms River resident Joe Kotran, whose adult daughter, Lauren, battled nervous system cancer as a child. "… There is still fear in the township."

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'I am pointing a finger at you'

Toms River's long history of pollution — two Superfund sites, numerous other contaminated properties, and a lengthy investigation into higher-than-normal childhood cancer rates here in the 1990s and early 2000s — coupled with the lack of community input in the settlement talks, have made residents uneasy about the proposal, Kotran said.

"The way things are done has been this way from the beginning," Kotran said. "The parents, the CACCCC (Citizens Action Committee on Childhood Cancer Cluster) have had to fight extremely hard to get you at the table."

Kotran read a statement from Linda Gillick, who has headed the citizens action committee for decades. In it, Gillick remembered what happened in the 1996, when news of elevated levels of childhood cancer here first became public.

"Thirty years ago, NJDEP and NJDOH (Department of Health) stood in my house arguing who was responsible for the atrocity of the childhood cancer cluster," Gillick wrote. "Each pointing a finger at the other. I am pointing a finger at you. To allow any development on this site is irresponsible not only for DEP, but for the responsible parties and the township. Exposure of any type will undo all that we accomplished over the past 30-plus years."

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The settlement would preserve 1,000 acres of land, and would also include building an environmental center, a pollinator garden and a boardwalk that would allow access to the property for hiking and birding.

Moriarty estimated that the property with the preserved land has a $200 million redevelopment value, and said renovations that would be completed as part of the settlement would cost BASF about $30 million.

The settlement would also allow BASF to develop about 250 acres of the property, and would include no fines for the company. BASF acquired the land in 2009, when it purchased Ciba. Read the draft settlement documents here.

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'The public is not going to want to use this'

David Bean, chief of the DEP's Bureau of Natural Resources Restoration, explained that the natural resources damage assessment was based on a calculation that groundwater damage began at the Ciba property in 1955, three years after the company began operations. The DEP estimated that the company caused more than $502 million in damages to groundwater, creating a pollution plume that migrated off the site and at one time was more than 500 acres in size.

By DEP calculations, that should result in preservation of 1,200 acres of property to mitigate the groundwater damage, he said. The settlement preserves 1,000 acres and includes other "features" that Moriarty said would provide "environmental uplift" and allow the public access to the site.

DEP officials stressed that soil and water testing on the site indicates it would be safe for people to visit. Many who spoke Monday did not seem to believe that.

"The psychology for individuals is going to be such that the public is not going to want to use this for passive recreation," said Phil Solomon, who has worked in environmental health and safety for 35 years.

Environmental advocates, many of whom have been involved in monitoring the Ciba site for decades, said they were disturbed they had not been asked for their comments before DEP announced the proposal in early December.

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Monday's meeting was only scheduled after township officials, activists and dozens of residents spoke out against the settlement at a community meeting held in January by Save Barnegat Bay. Toms River Mayor Maurice B. "Mo" Hill Jr. and the township council strongly oppose the proposal, and have called for a portion of the property to be donated to the township.

"I’m not sure how we got to this point in the process without public input," said Peter Hibbard, president of Ocean County Citizens for Clean Water, which has tested groundwater on the Ciba property for years. "The record of DEP with public input is abysmal. … The bottom line comes down to this, trust. In the past, we had no reason to trust the DEP, we had no reason to trust the chemical industry."

'We have some lessons to learn'

Hibbard urged the DEP to be more transparent about plans for the nearly 1,400-acre Ciba property, which is located between Oak Ridge Parkway and Route 37, west of the Garden State Parkway.

A three-hour meeting in January, sponsored by environmental group Save Barnegat Bay, drew dozens of comments about the proposal, almost all of them negative.

"This is definitely a teachable moment for us, we have some lessons to learn about this project, the way we rolled it out," Moriarty admitted. "This is the process. This is the process working. We are here with you today, providing as much information as we have."

He said that the DEP would answer every resident's question and could revise the settlement in response to input, including requests that BASF donate 1,250 acres, instead of 1,000, to be preserved. The DEP is accepting public comment on the proposal through April 5.

But Moriarty and other DEP officials at the meeting stressed that they believe a negotiated settlement with BASF is preferable to litigating with the company to recover natural resources damages. Litigation would likely be lengthy and costly and could ultimately result in preservation of fewer acres of land, they said.

Paul Stofa, a lawyer an chief adviser to the DEP on the BASF settlement, said the courts have not supported treating "successor corporations" like BASF, which acquire land after it's already contaminated, as being liable for as many damages as the initial polluter.

He said the state is reluctant to release all the details of settlement talks with polluters because of concern about potential litigation. BASF will remain responsible for cleaning groundwater polluted by Ciba's operations through its pump-and-treat system; a groundwater pollution plume is expected to take decades more to clean.

Comments on the BASF settlement can be submitted to David Bean, Chief, Office of Natural Resource Restoration, NJDEP, 501 East State Street, Mail Code 501-03, PO Box 420, Trenton, NJ 08625-0420.

Jean Mikle covers Toms River and several other Ocean County towns, and has been writing about local government and politics at the Jersey Shore for nearly 38 years. She's also passionate about the Shore's storied music scene. Contact her: @jeanmikle,  jmikle@gannettnj.com.

This article originally appeared on Asbury Park Press: Ciba-Geigy deal proposed by NJDEP slammed by Toms River residents