Jersey Shore town saw child cancer cases rise, now residents say another injustice is happening

Even though he lived more than an hour away from Ocean County, as a teenager Ed Vienckowski heard the infamous stories of pollution tied to Ciba-Geigy Corporation.

When the company’s pipeline leaked black liquid at Vaughn and Bay Avenues in 1984, word spread, Vienckowski, the chairman of the board for Save Barnegat Bay, recalled on Tuesday standing at the site of the 1,255-acre former chemical plant.

“When that pipe burst, all hell broke loose,” Vienckowski, 69, told NJ Advance Media on Tuesday afternoon, “because then they couldn’t hide any longer what they were doing.”

The pollution in Toms River and related health impacts — including a higher rate of cancer in children — are tirelessly familiar and extensively chronicled.

However, Save Barnegat Bay and a throng of locals say in new court filings that not all of that 70-plus-year chronicle has been considered as the state tries to finalize a settlement that was announced two years ago.

What’s more, they note in those filings an appropriate assessment of affected natural resources would show damages exceeding $1 billion dollars.

The contaminated site, one of the worst nationwide where a chemical manufacturer began in the 1950s, once produced industrial dyes, pigments, epoxy resins and plastics. The company, later taken over by BASF Corporation, also dumped toxic waste — including treated wastewater — into Toms River and directly on the ground.

The chemicals disposed of into the river and Atlantic Ocean, as well as the 47,000 drums of toxic waste buried in the ground, have taken a toll. But so have talks to clean all that up and do right by the region.

Save Barnegat Bay and the group’s attorney said the state has not only failed to effectively hold the long-known flagrant polluter accountable in its settlement but has, in those very talks to settle, spurned the community during the process.

They say the shortcomings of the settlement include how it does not capture the multi-pronged impact on the environment nor largely considers other health problems that dumping brought to Toms River and nearly a dozen other towns.

Toms River officials, including the former mayor who said the town was excluded from the settlement agreement, have also highlighted a lack of fair monetary compensation.

However, the state DEP contends it was limited in its authority and the department did what was in its power to compensate the public for damages to the natural resources it oversees. The state was not, officials said, charged with seeking compensation for medical issues or individual property damage, but instead restoring the land.

A spokesperson for the DEP said Monday the agency does not comment on pending litigation.

“This has been such an awful experience and if this goes through without any rules — without any power for the community at the receiving end of a deal like this — then this is going to come to every other community in this state that has a Superfund site,” Britta Forsberg, executive director of Save Barnegat Bay, told NJ Advance Media on Monday.

A settlement, announced at the end of 2022 and signed by the state last year, would force BASF to pay $500,000 as part of larger efforts to restore the land and mandate the company to maintain nine restoration projects for 20 years. The agreement has not been finalized.

Molly Birman, a spokesperson for BASF, said in an emailed statement Tuesday that the company collected considerable feedback to plan “ecological restoration projects” and preserve more than 1,000 acres of land as part of settling.

“The state provided an extensive opportunity for public comment on the settlement agreement, including two extensions of time and a total of 120 days for the public to provide input,” Birman said.

The German company looks “forward to preserving the land, implementing the planned environmental projects and opening new possibilities to encourage recreation, learning and community engagement at the site for decades to come,” Birman said.

‘Uncharted waters’

Even in a state with the most Superfund sites, at least 114, Toms River — the subject of a book about corporate negligence and carcinogens in drinking water and air — stands out on several fronts.

More than 80 children in the Jersey Shore town were disproportionally diagnosed with cancer from 1979 to 1995. Signs something was wrong have been profuse: plant workers sweated the color of dye, swimmers got ear infections and foul odors became common. A burst pipe leaked a black oily substance, and a plume of contaminated water was found underneath the ground and reported elsewhere. Residents also cited the deaths of turtles, marine life seen with sores and “massive” fish kills.

And while a study conducted did not expressly blame the surge in cancer cases on Ciba-Geigy’s dumping, the company and two others paid out $13.2 million to dozens of affected families.

Decades after joining the federal Superfund site list in the 1980s, discussions over resolving and cleaning the parcels continued.

Ciba-Geigy in 1992 paid nearly $64 million to settle criminal charges that it illegally rid of hazardous waste (just $3.5 million in the form of criminal penalties, $5.5 million in civil fines and $50 million of which stayed on-site as part of cleanup work).

Cleaning up the site has racked up as much as $300 million in expenses — paid by Ciba-Geigy and the company that bought it. The full clean-up, a timeline and full cost of which is not known, has not been completed.

Steps required in the new proposed settlement include sprucing up wetlands and grassy areas, adding new walking trails and a viewing platform as well as building an environmental education center. Those projects on their own would cost an estimated $30 million.

Save Barnegat Bay contends that settling with the current parameters falls short for a number of reasons, including not clearing a federal precedent for determining wider-spanning natural resource impacts, according to Michele Donato, an attorney for the group.

Donato expressed the frustration felt by the Toms River community toward the polluter and its corporate successor: “They committed crimes. They discharged toxic chemicals that they had no authorization to discharge … They reaped the benefits of that. They externalized their costs to the public. They have to pay that back.”

A vehement exchange on the settlement between local stakeholders and the state is apparent in a collection of documents that include emails, letters and court briefings, obtained by NJ Advance Media.

Among the takeaways from the back-and-forth, Save Barnegat Bay said the state DEP failed to comprehensively take into account the natural resources harms that BASF is liable for based on a prior case and thus reached the settlement on a limited scope of information.

Instead of returning impacted land to its pristine state before the pollution, the group also said BASF was only required to mitigate “immediate” risks.

“In these uncharted waters,” Donato wrote in an Oct. 23, 2024 letter to the state appeals court, “the DEP has settled one of the most notorious cases of deliberate, widespread and criminal contamination without regard to the record and the public interest.”

‘A deal made behind closed doors’

Public participation has been fraught.

Save Barnegat Bay said a December 2022 meeting felt like a procedural farce rather than a critical discussion.

“Rather than fostering an open dialogue or addressing the concerns of the environmental groups, the DEP seemed focused on gaining endorsement for a pre-determined agreement …” an excerpt from a court brief said.

The state DEP said in response to public comments that it held a five-hour meeting last March to discuss the settlement and extended the written comment period. Save Barnegat Bay said that the long-running meeting was the only one held of that nature and public participation felt stymied. It also said extended public comment only came after public outcry and legal pressure.

“This was a deal made behind closed doors,” Forsberg said Monday in response to the DEP determining public forums were robust. “There was no attempt at a robust public process here at all. They just wanted to tell us what deal they came up with, and we were supposed to say, ‘This is wonderful’.”

The state department said that “it understands the citizens of Toms River and surrounding areas have endured much pain and suffering as a result of the contamination released into the environment from this site.”

And yet, DEP officials wrote, the state was limited in its authority and — in agreeing to settle — could only address “compensation to the public for damages to natural resources held in trust by the department.”

The DEP said the settlement did not stop other individuals or groups from pursuing their own claims against BASF, and by extension Ciba-Geigy.

Although it’s unclear how much longer court proceedings will last, Vienckowski of Save Barnegat Bay said the issue remains timely, especially as generations come and go.

“Time moves on and the more time that goes on, fewer and fewer people are going to recall this, and then they’re going to say, ‘What’s the big deal?’” Vienckowski said. “Oh, it’s a big deal.”