Toms River: NJ deal on 16-year-old Ciba-Geigy lawsuit stinks, so we'll keep fighting

TOMS RIVER - Toms River leaders don't think the deal the state struck with the company that owns the former Ciba-Geigy Superfund site to end a 16-year-old lawsuit is good enough. And they're willing to spend taxpayer money fighting to change it.

That's the message Toms River leaders and environmental organization Save Barnegat Bay are sending to both BASF and the state Department of Environmental Protection after the state approved a settlement with BASF last week that would preserve 1,000 acres of the site.

Toms River plans to join with Save Barnegat Bay to fight the settlement, with the township likely to vote soon to allocate money to help pay for the experts the environmental group has hired to dispute DEP's determination of the cost of the natural resource damages CIba-Geigy caused. The company dumped chemical waste for decades on its nearly 1,400-acre property, as well as the Toms River, which flows along the land's eastern edge.

"This has been an open wound in Toms River for 60 years," Mayor Maurice B. "Mo" Hill Jr. said. "DEP has poured salt in this wound. … I will say that I am proud to announce that with the concurrence of the (township) council, we are going to join with Save Barnegat Bay in this action."

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What Toms River wants

What does the township want? First of all, the township does not want BASF to be able to develop 250 acres of land along Route 37, property that Toms River would like to have donated to the town. Secondly, the township wants compensation for the 40 years of contamination Ciba caused to its land.

The current settlement requires BASF to give $500,000 to the state; Toms River will receive no money.

Experts hired by Save Barnegat Bay told an audience at the group's annual meeting that they believe the DEP has underestimated the magnitude of the natural resources damages caused by Ciba-Geigy's dye-making operations by as much as 90%.

Ciba caused close to $900 million in natural resource damages through dumping toxic waste on its site, far above the $192 million value the DEP has placed on the settlement, according to Albert Telsey, the environmental litigator Save Barnegat Bay has hired.

Save Barnegat Bay has retained several experts to challenge the DEP's assessment of natural resource damages, including Telsey, as well as and Frances Schlosstein and Jeffrey Andrilenas of TBLS Group, which works with municipalities and other clients to find financial solutions in environmental liability cases.

"What we do, we figure out habitat ecology injury," Telsey said. "What was the injury to the groundwater, what was the loss of use to the homes and the wells and those kinds of things, look at the recreational loss. … You have to put a monetary value on that. … If it’s a lot of injury, you’re owed a lot of restoration."

Political unity

Toms River's decision to join with Save Barnegat Bay was made after Hill and Councilmen Daniel Rodrick, Matt Lotano and Kevin M. Geogehan met with representatives of the environmental group to discuss the situation. Rodrick, who defeated Hill in the June Republican primary, is frequently at odds with the mayor, but in this case, the two are in agreement.

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"The NJDEP should be fighting for the people of Toms River, but it appears they are really working for BASF," Rodrick said. "The DEP is funded by the taxpayers of New Jersey, not German multinational corporations like BASF. This shameful display of crony capitalism is why people have lost their faith in government. I'm proud to join with the leadership of Save Barnegat Bay in holding BASF accountable."

So far, the township council has not made an official decision to set aside funding for any potential lawsuit against BASF and the state. The council discussed BASF in a closed session meeting in late August, but took no official action.

Lawyer Telsey has urged people to fill out a questionnaire indicating what types of environmental projects they would like to see in Toms River, including in areas that are not on BASF's land. Any additional money the town receives from BASF could be used for those projects, he said.

DEP Commissioner Shawn LaTourette said earlier this year that the BASF settlement was "a very, very good deal," because it means 1,000 acres of land will be preserved, thus protecting the groundwater.

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What could happen to the land

The settlement with BASF, which purchased the Ciba site in 2009, includes development of portions of the property for public access, including building an environmental center, a pollinator garden and a boardwalk that would allow access to the property for hiking and birdwatching.

LaTourette has estimated that BASF will invest $35 million to $40 million to create the various public-accessible sites on its property. The company will also pay the state $500,000 in damages and continue to pay for a pump-and-treat system that is expected to take at least 20 more years to clean contaminated groundwater.

The settlement, which was approved last month, ends a 2007 lawsuit that accused Ciba-Geigy of damaging the state's natural resources by polluting the the Toms River property.

LaTourette said that while he is sympathetic to residents' concerns, the majority of Ciba's site meets residential standards; it's clean enough that homes could be built there. Only about 320 acres on the property were used for Ciba's operations.

Adding groundwater protection to the other natural resource restoration projects BASF must fund under the settlement, "Together they make this, if it’s consummated, one of the best natural resource results our state has ever had," LaTourette said.

Toms River officials and environmental activists have disputed LaTourette's characterization of the settlement as a good deal. They said it does not adequately compensate the township for the trauma and environmental damage caused by the company.

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"The DEP should start taking some notes," said Britta Forsberg, executive director of Save Barnegat Bay. "… They will need to learn that any and all communities in New Jersey with wounds as deep as these will have pains and will experience emotions. … Exactly how much time does DEP think is enough time to stop feeling the pain of a lost loved one?"

Environmental litigation can be lengthy — and costly. Lawyer Jan Schlictmann represented 69 Toms River families of children with cancer who pursued an agreement with Ciba-Geigy, Union Carbide Co. and Toms River's public water utility, then called United Water Toms River. The families eventually settled for what's believed to be about $13.2 million, along with health monitoring for family members.

It remains to be seen if BASF will want to negotiate another settlement. A zoning change adopted earlier this year by Toms River's township council blocks conservation or environmental uses in industrial zones unless the developments are approved by Toms River's planning or zoning boards. That could force BASF, which is zoned for industrial use, to seek a township variance to make the environmental improvements required by the settlement.

Or, prolonged litigation could lead the company to take more drastic action. As LaTourette stated, most of the BASF land is considered clean enough for residential development. It's not likely that housing would be built there, but the land could accommodate thousands of homes. There is precedent for this type of development; many homes are located near the site of New York's infamous Love Canal, a chemical dump whose cleanup sparked the creation of the Superfund law.

Any delays in developing the BASF property would, of course, be welcomed by the township.

Joseph Kotran, whose daughter, Lauren, suffered from neuroblastoma as a child, said he is happy to see that people are still taking on the fight for environmental justice.

"I am very happy to see that people are still taking on the fight," Kotran said "DEP, ATSDR (Agency for Toxic Substances and Disease Registry) Department of Health, you think that they are representing you, but they are not. … We are not just emotional, we do want a settlement, we do want this to be used for our grandchildren. I hope this thing does get taken care of."

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 39 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: Toms River fighting NJ deal with BASF over polluted Ciba-Geigy land