Toms River (28 page)

On the morning of July 30, 1984, a few hours after Samuel Sprunt and Beverly Baker of Greenpeace snuck onto the grounds of the Ciba-Geigy plant and climbed the water tower to begin their protest, three state officials showed up at the factory’s front gate for a rare surprise inspection and another hellish trip into the landfill pit.

For Jim Manuel, a newly hired hazardous waste specialist at the state Department of Environmental Protection who would make many such descents into the pit starting later in 1984, a visit to Ciba-Geigy was a thoroughly unpleasant experience—and one that was awash in déjà vu. Like almost every other science-minded boy from Ocean County (Manuel had grown up in next-door Lakewood), he had applied for a job at Ciba-Geigy after graduating from college. “It was one of the stellar employers of the area,” he recalled. “Nobody ever questioned anything they did.” Now, returning to the plant as an inspector, Manuel was getting an inside look at the company’s operations.

He was not impressed. Some buildings at the complex were clean and modern, but others looked like they had been contaminated for decades. Treeless areas near the production buildings had been used as dumps as far back as the 1950s and still bore the scars of their misuse.
Manuel knew that the soil was sandy and that an aquifer lay beneath it. He wondered where all those long-buried chemicals had gone once they reached groundwater. But those older dumps, which totaled more than fourteen acres, were outside the state’s purview. The U.S. Environmental Protection Agency would have to deal with them through the Superfund process, which the EPA was still organizing in 1984. Manuel and his DEP colleagues were focused on the new, two-acre dumpsite their own agency had sanctioned: the double-lined landfill where the company was burying ten thousand drums and nine thousand cubic yards of sewage sludge every year.
¹

By the time Manuel got there, the DEP had known for more than five years that the landfill’s inner lining was leaking. The dump’s first section, Cell One, had opened in 1978, and within a year state inspectors had documented a leak of about one drop per second. By mid-1982, Cell One was filled to capacity, and the leak had swelled to approximately one gallon per day. The company then started dumping in a new section, Cell Two, which promptly began leaking about
forty
gallons per day.
²
The landfill’s inner lining, made of polyvinyl chloride plastic, could not withstand the solvents and other corrosive chemicals in Ciba-Geigy’s waste. An identical plastic outer liner was all that was preventing the waste from breaking through and again polluting the groundwater, as it had during the decades of open-pit dumping at the factory. In between those two liners was a two-foot layer of sand, portions of which were now soaked with leaking waste.

That was not supposed to happen, because hazardous and liquid wastes were not supposed to be buried in the landfill. To reduce the chance of leaks, the operating permit issued by the state DEP specified that only dry, nonhazardous waste could be dumped there. All hazardous waste was supposed to be trucked offsite to specialized facilities. By shirking that requirement and dumping almost all of its waste in its own landfill (everything but the wastewater it was pumping to the ocean), the company was probably saving about a million dollars per year.
³
By mid-1984, the evidence was overwhelming that Ciba-Geigy was violating the permit requirements, potentially a criminal offense. DEP inspectors had made more than 130 visits to the landfill since 1979, documenting leaks each time. The state even tested
the leaking liquid, confirming that it included indisputably hazardous chemicals such as toluene. Still, the DEP did not try to fine or prosecute Ciba-Geigy or revoke its landfill permit, which would have forced the company either to shut down or to ship all of its waste and sludge offsite at huge expense. Instead, the state let Ciba-Geigy keep dumping, day after day and year after year.
⁴

It was a sorry example of environmental enforcement and an absolutely typical one—then and now. Compliance in New Jersey and everywhere else still depends almost entirely on voluntary reporting and negotiation. At their meager staffing levels, the oversight agencies have no alternative. The EPA, for example, is supposed to monitor hundreds of thousands of polluting facilities but has never had more than eighteen thousand employees, with not even one in ten directly involved in enforcement. So the system still relies on self-reporting by companies, with only sporadic direct oversight by overworked agency inspectors.
⁵
When there is a violation, agencies usually lodge civil charges that almost always end in negotiated agreements, called consent orders, in which the offending company promises to change its behavior and sometimes pays a fine.

Criminal convictions in environmental cases are very rare, since they generally require prosecutors to prove beyond a reasonable doubt that a polluter
intended
to violate the law—a formidable hurdle because environmental rules are complex and open to varying interpretation. Even in the rare instance when an enforcement action begins as a criminal matter, it often ends in a civil settlement, which is what had happened with the indictments of Toms River Chemical in the 1970s. Union Carbide had followed a similar path with a 1977 consent order in which the state dropped its charges of groundwater pollution in Pleasant Plains in return for a settlement of $60,000. In the 1980s, criminal prosecutions of polluters were so rare that in 1984, the EPA referred just thirty-one cases to the Justice Department for prosecution, while more than three thousand cases were handled administratively or in civil court.
⁶
Since enforcement depends on self-reporting and the distant threat of fines, a polluter’s decision on whether to comply becomes a business calculation: What are the chances of being caught? Would paying the fine be cheaper than the cost of complying
in the first place? Many waste handlers simply conclude that compliance doesn’t pay.
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No state in the 1970s and 1980s had more trouble controlling polluters than New Jersey, which was still a hub of the chemical industry. In 1976, when Congress passed the Resource Conservation and Recovery Act, which for the first time tried to define what hazardous waste was and how it would have to be handled, the price of hauling toxic waste quickly quadrupled in New Jersey. So did the incentive for dumpers to evade the new rules. Some dumpers, it turned out, were already comfortable operating illegally because they had connections to organized crime.
⁸
In 1979, New Jersey lawmakers finally made it a felony, punishable by five to ten years in prison, to dispose of toxic waste illegally. But the difficulty of proving criminal intent remained a huge hurdle to getting convictions.
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The situation was particularly frustrating for the state Department of Environmental Protection because the agency depended on the threat of tough enforcement, including criminal penalties, in its uphill struggle to try to get polluters to comply with its permits. That threat was especially hollow for a huge entity like Ciba-Geigy, which could afford top legal and engineering talent and had impeccable connections to politicians. The company had already shown that it could beat a criminal prosecution, back in the 1970s. No agency was eager to tangle with Ciba-Geigy again, and the company knew it.

By the early summer of 1984, however, the calculus was changing in Toms River, thanks to the pipeline leak and ensuing public outrage. Greenpeace was in town, and the beach communities were riled up. Ocean County Citizens for Clean Water was in the newspapers almost every day, and so was Don Bennett, who was writing one critical story after another in the
Observer
. It was obvious to Jim Manuel and his fellow inspectors that the status quo was no longer acceptable. Their bosses in Trenton were going to have to do something about Ciba-Geigy—or face the political consequences.

A day at Ciba-Geigy was always an ordeal for Manuel and his colleagues. First they would spend hours in a cramped office, poring over manifests that purported to show the disposition of every drum of waste the factory produced. That was a walk in the park compared to
what came next: The inspectors would climb down into the landfill pit and examine the drums up close. The scene was straight out of Dante’s
Inferno
. The stench was awful, and the drums, lined up in rows and lashed together by ropes, sat on a thick bed of jet-black sludge trucked over from the wastewater treatment plant. “It was a nasty place,” Manuel remembered. “The sludge they put in there was almost like axle grease. When it rained, everything would get extremely goopy. Sometimes you couldn’t get anywhere close to the drums so you had to kind of circle them from a distance.”

Under those nightmarish conditions, it was extremely difficult for the inspectors to figure out what was actually inside the drums—and impossible once they were buried in sludge, which happened every few weeks. Even so, state inspectors kept catching Ciba-Geigy in the act of dumping hazardous waste and liquids into the landfill, thus violating its permit. “It probably happened three, four, five times,” Manuel remembered. Sometimes, the inspectors would follow their noses, seeking the distinctive odors of liquid solvents. Other times, the company was tripped up by its own paperwork. The manifest sheets, which identified every drum by its serial number, showed that some drums that were supposed to be shipped offsite were dumped into the pit instead.

When caught, Ciba-Geigy managers did not always fess up. Often, they claimed that the waste in question did not meet the legal definition of “hazardous.” There was, for instance, the “filter cake” residue scraped off the filters used in resin production. The company sent hundreds of drums of filter cake to its “dry, nonhazardous” landfill every year, even though the cake was drenched in liquid toluene. Managers claimed that the cake chemically bonded with the solvent, rendering it nonhazardous. Manuel considered that nonsense. Years later, when the state was pulling drums out of the landfill, he would prove his point by reaching inside a long-buried drum, grabbing a chunk of filter cake and squeezing it, and then watching the toluene pour out onto the ground.

To Manuel and the other state inspectors, the evidence was clear: Ciba-Geigy had violated the terms of its permit and was continuing to do so. The question now was whether anyone was finally going to
do anything about it. By mid-1984, there had been so many violations at the plant that the inspectors had dropped their customary practice of giving the company advance notice that they were coming. Now they just showed up unannounced, as the three inspectors did on July 30. Once again, they discovered evidence that drums containing liquid solvents were going to the landfill.

Two days later, on the morning that Sprunt and Baker climbed down from the water tower and Greenpeace’s divers made their symbolic attempt to plug the outfall pipe, Ciba-Geigy executive Jorge Winkler was out of town. He was making an emergency trip to Trenton to meet with top officials of the state Department of Environmental Protection. As the director of production and environmental affairs, Winkler was the point man in the company’s clumsy attempts to defend its waste-handling practices. Now he was in Trenton admitting that Greenpeace was at least partially correct and so were the state inspectors. Ciba-Geigy had made a “mistake” by continuing to bury liquid waste, Winkler told the officials. This was not a gray area, like the semisolid filter cake. Instead, the drums at issue were filled with pure liquid, which was “a clear violation,” Winkler acknowledged. The state officials sent him out of the room to discuss the matter in private and then called him back in and dropped a bomb: They told Winkler that the company would have to shut down the landfill immediately and remove all fourteen thousand drums that were buried in Cell Two.

Shocked, Winkler pleaded for a partial reprieve that would allow Ciba-Geigy to keep using the landfill for its wastewater sludge only. Otherwise, he said, the factory would have to close down and start furloughing workers. The state officials agreed, and for a few more weeks the factory continued to operate normally. The only difference was that instead of burying its waste drums, Ciba-Geigy stored them in a temporary holding area as it continued to negotiate with the state. Now Winkler was making more concessions, having belatedly realized the precariousness of the company’s position. On August 10, Ciba-Geigy finally told the state that its wastewater treatment plant would no longer accept waste from other factories—more than a year after the state had demanded it and four months after reporter Don
Bennett’s articles in the
Observer
made it a high-profile issue. Winkler also organized some quiet meetings with local politicians, urging them to stand by Ciba-Geigy as a pillar of the region’s economy and assuring them that the company would, as usual, reach a quiet accommodation with the state DEP.

Things seemed to be calming down, especially after Greenpeace sailed away. The company’s well-connected legal team—led by Matthew Boylan, who happened to be a former director of the state Division of Criminal Justice—was negotiating with the DEP. At the end of August, Winkler felt confident enough to take his usual vacation on Upper Saranac Lake in New York. Even after all the craziness of the summer of 1984, he was sure that the company would be able to cut a deal, just as it always had. The Adirondacks were always beautiful over Labor Day, and Winkler did not want to miss seeing them.

In 1932, the same year that Ernest Kennaway’s decade of research at the Cancer Hospital of London culminated in the identification of benzo(a)pyrene as the first confirmed chemical carcinogen, another iconoclastic pathologist obsessed with unearthing the causes of cancer reached a turning point in his career. His name was Wilhelm Hueper, and like so many of his predecessors in cancer research, he had a Paracelsian knack for irritating almost everyone he knew.

Raised in a liberal, comfortable home in northern Germany, Hueper interrupted his medical studies in 1914, at age twenty, to volunteer for military service at the outbreak of World War I, despite being a pacifist who railed against the “stupid adventures” of war.
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He fought in the trenches in Belgium—one of his tasks was to haul huge tanks of poisonous chlorine gas to the front lines to use against the French whenever the winds were favorable—and then switched to field hospital work. He triaged the wounded at what he called “an orgy of mass murder” during the five-month Battle of the Somme, in which there were more than five hundred thousand German casualties. During the final year of the war, Hueper was a prisoner in France, sleeping in a stable and surviving on a daily ration of two cups of coffee and a small piece of bread.