Toms River (54 page)

All the pieces were falling into place for the study the families had been seeking. In January of 1997, Fagliano and Elin Gursky flew to Atlanta to finalize the arrangements with the Agency for Toxic Substances and Disease Registry, which would fill Peter Murphy’s role by constructing a water distribution model for Toms River. A few days later, Gursky announced that the case-control study would go forward. “Thank God,” was Linda Gillick’s reaction. “It’s the only way we will find out what happened here.”
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Jerry Fagliano was not so sure. Now that his study had been approved, he was more worried than ever that the families’ expectations were too high. In Woburn, the key contaminant, trichloroethylene, was a known carcinogen (by the 1990s, at least), but no one knew whether styrene acrylonitrile trimer was dangerous at low levels. Fagliano was also not sure that Murphy’s modeling feat could be replicated in Toms River, where the piping system was much larger and had changed drastically with the town’s explosive growth. His biggest concern, however, was that there were too few cases for a statistically valid study. He had already decided to limit the study to childhood leukemias and brain and central nervous system cancers, because those were somewhat more common and thus less subject to the uncertainty of random variation. Even so, the state’s newly updated case totals showed that in the Toms River “core zone,” the bull’s-eye of the cluster, there were just five brain cancer cases and four leukemias between 1979 and 1996. That was about eight times more than expected, but it was still just nine cases—too few, Fagliano thought, to generate a statistically meaningful result in an epidemiological study. The other
problem was that a case-control environmental study needed to compare exposed and unexposed groups, but it was likely that almost everyone in the core zone had drunk at least some Parkway water and thus would be classified as exposed, since those wells were so close to the middle of town.

A larger study of the entire township, instead of just the core zone, Fagliano thought, would ease these problems. Some parts of the town did not get Parkway water, and there were many more cases: twenty-two childhood leukemias and eighteen brain and central nervous system cancers between 1979 and 1996. Those totals were still low enough to make Fagliano nervous about statistical significance, however. Woburn was less than half the size of Toms River, yet had almost the same number of childhood leukemia cases—twenty-one—over a different seventeen-year period (1969 to 1986). Toms River had 60 percent more childhood leukemia than expected, but Woburn had 400 percent more.

With just forty cases, the Toms River study would need dramatic results to reasonably exclude the effects of chance. Fagliano had calculated that he would need to show at least a three- or fourfold increase in cancer risk among exposed children in order for the results to be statistically significant. “We were pessimistic, and we told the families that,” Fagliano recalled. “Whether they heard us, I don’t know.”

Jerry Fagliano was not the only person who saw parallels between Woburn and Toms River. In 1996, Linda Gillick read
A Civil Action
, a newly published book about the convoluted, excruciating lawsuit that arose from the Woburn investigations. The antihero of author Jonathan Harr’s book was a charismatic, tenacious, and ultimately self-destructive young lawyer named Jan Schlichtmann who represented eight families struck by leukemia, including Anne Anderson’s. On their behalf, he embarked on a nine-year odyssey through the Massachusetts courts, from 1981 to 1990. Seeking $400 million, Schlichtmann sued three companies whose properties near wells G and H were contaminated with toxic waste. He was a passionate advocate but made a series of tactical errors, including passing up opportunities
to settle the case, antagonizing the judge, and underestimating the determination of his deep-pocketed opponents. After a series of adverse rulings, Schlichtmann had to accept a settlement offer of just $8 million from one of the two major defendants, the manufacturer W.R. Grace. The other, Beatrice Foods, paid nothing at all.
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After deductions for legal expenses and fees, the eight families ended up with less than $500,000 each, and the high-living Schlichtmann ended up homeless and more than $1 million in debt. “I was totally exhausted at the end of that experience,” he recalled years later. “I was bankrupt financially, spiritually and emotionally. I had no car, no condo and no clothes. But the most devastating thing for me was that I didn’t want to be a lawyer.”

Declaring personal bankruptcy in 1990, Schlichtmann moved to Hawaii (a friend bought him the plane ticket), camped out on the beach, and renounced the practice of law—though only temporarily, as things turned out. When
A Civil Action
was published in 1995 and became a bestseller, Schlichtmann was suddenly in demand on the lecture circuit. He also collected a $250,000 consulting fee from Disney, which was producing a movie based on the book, with John Travolta starring as the young knight-errant tilting at corporate dragons. Schlichtmann’s tenuously revived law practice got a big boost, too. There were dozens of calls from people who believed they had an environmental case just like the families in Woburn—only winnable.

Linda Gillick called Schlichtmann in January of 1997, two months after the discovery of SAN trimer in the Parkway wells. “Before the trimer, I never heard anyone say, ‘Let’s sue them!’ because there was no one to sue,” remembered Kim Pascarella, the local lawyer who became active in Ocean of Love after his infant daughter died of brain cancer. “But once a responsible party was identified, I told Linda you have to start thinking about it. You had a potential defendant now” in Union Carbide and United Water—and maybe even Ciba. So Gillick called Schlichtmann and told him about the cancer cluster and Ocean of Love, and about Ciba, Reich Farm, and the Parkway wells. The families might soon need legal counsel, Gillick said. Was Schlichtmann interested? He was. Schlichtmann was intrigued by the situation in Toms River and impressed by the organizing work Gillick had
done at Ocean of Love. Gillick wanted to be an active participant in any future case; that was a quality Schlichtmann loved in a potential client.

Before the discussion went any further, though, Schlichtmann wanted to change Gillick’s expectations of him and her potential case. Gillick had called because she admired the Jan Schlichtmann of
A Civil Action
, but that brash gladiator no longer existed, he told her. The searing experience of Woburn, and the emotional breakdown and exile that followed, had triggered a personal transformation. Schlichtmann was now an evangelist for a very different kind of lawyering that valued mediation over combat, reconciliation over victory. The lesson of Woburn, he liked to say, is that the civil justice system is built on a lie—that vanquishing the other guy will solve your problems and make you happy. “As soon as you say, ‘I’m going to use the legal system to impose my will on you,’ you’re buying into the lie,” Schlichtmann said. “You’ll get chaos, and the system will disappoint you. You’ll get decision-making that only makes sense in Bedlam. We think the legal system is there for us, but it’s not. It’s there only for itself.”

Schlichtmann was not sure if he made much of an impression on Gillick. He thought she sounded like a tough, smart woman who had been through a lot and was not ready to talk peace with the companies she blamed for her son’s illness. Resolving conflicts outside of the adversarial system required a recognition that neither side had a monopoly on the truth, but the Gillicks—both Michael and Linda—were sure that they already knew the truth: Toxic pollution had caused Michael’s illness. What they wanted was proof and vindication—things they could not get from the legal system, Schlichtmann believed. Even so, he and Linda Gillick ended the conversation on a friendly note, promising to keep in touch.

At the Ciba plant, meanwhile, an era was ending in bitterness. The last few production employees left the factory at the end of 1996, including the union president John Talty, his brother Ray, and George Woolley, who had headed the environmental committee. John Talty had started as a laboratory technician in June of 1960 at a salary of $78 per week. At the end, he was making $760 a week as a janitor,
pushing a broom around the shuttered buildings. Collectively, the three men had put in 104 years at the Toms River factory. Over and over, they had backed the company in its battles with local activists, despite their worries about their own health. Now, they felt abandoned. A few months earlier, a maintenance worker had found an unsigned memo in a garbage can that laid out the company’s confidential strategy for its final negotiations with the handful of union workers left. Ciba’s priority now, according to the memo, was to “minimize negative impact on sensitive community relations issues,” including “the cancer cluster.” For the union employees, there would be no severance pay and no special consideration for rehiring in the pending Superfund cleanup of the factory property, according to the memo. Furious, John Talty called a press conference and accused Ciba of holding back information about cancer cases among the employees. The company denied the charge, citing the ongoing update of the epidemiological study by the Alabama researchers. Talty later met with EPA officials and even with Linda Gillick, telling them what he knew about Ciba’s disposal practices.

“At the end, there were very hard feelings,” Talty recalled. “I worked there for thirty-seven years, and I didn’t get a single penny of separation pay.” What was even worse, though, was the chilling expectation, shared by many of his union brethren, that cancer would eventually come for them, too. “People didn’t like to talk about it,” he said, “but they thought about it. How could you not think about it?”

To no one’s surprise, the spring and summer months of 1997 were a struggle for United Water Toms River, thanks to the contamination of the Parkway wells. The spring was drier than usual, and lawn-watering season had begun. The water pressure was so low that United Water could not even flush the hydrants in some sections of town, something it typically did twice a year to remove iron buildup in pipes. As a result, the water in certain neighborhoods looked, smelled, and tasted foul. One angry resident brought a jug of tea-colored water to a meeting of Gillick’s advisory committee in June. “I’ve got a Jacuzzi full of this crap,” he complained.
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Many in town assumed that chemical pollution was to blame for the discoloration, though the actual culprit
was iron. Industrial pollutants, measured in the parts per billion, were invisible.

Ignored or mishandled for a generation, the underground plume of pollution from Reich Farm was now an acute dilemma for the water company. United Water would never make it through the summer without the 45 percent of its supply that came from the Parkway well field, but that was only the most obvious problem. The deeper issue was that it needed to restart the two tainted Parkway wells, wells 26 and 28, as soon as possible in order to keep the Reich Farm pollution plume from being sucked up by four other shallow Parkway wells, as had already happened during earlier shutdowns of wells 26 and 28. The plume hidden beneath Pleasant Plains was like a serpent ready to strike at anything that moved; the only solution was to give it a sacrificial target. Wells 26 and 28 would have to start pumping again, but this time only as pollution recovery wells, not water supply wells. The other Parkway wells could then reopen as supply wells, and Toms River would have just enough water to get through the summer.

The irony was that after more than twenty years of delay and denial, carbon filters would finally be installed on wells 26 and 28—even though, for the first time, no one would be drinking the water they pumped. SAN trimer would at last be removed from the Parkway water, but the filtered water would be pumped back into the ground instead of distributed to residents. Union Carbide finished installing the filters in May, and in June the Parkway wells started pumping again—just in time to head off another water crisis.

This jury-rigged plan, however, was not enough to get United Water through July, when demand hit a record twenty-two million gallons per day. The water company responded by pumping the newly reopened Parkway wells beyond their normal limits, a move that risked pulling in pollutants that were now being sucked into wells 26 and 28. But even then, United Water was still running short of water, so it quietly sought and received special permission from the state and town to change the plan and start using water from 26 and 28 too. Without informing its customers, the water company pumped the carbon-filtered water from those two wells into its distribution system for several weekends instead of discharging it into the ground. Gillick
and her fellow committee members were furious when they found out, but Mayor George Wittman Jr. said that the town council had no choice but to allow the diversion. Mandatory curbs on water use, he said, would not have worked because the town had too few employees to enforce them.

To Gillick and the Ocean of Love families, the secret, if brief, reopening of the two water wells suggested that all of their efforts over the previous eighteen months were being ignored. The closure of the Parkway wells had been their most tangible victory so far, but now six months later all the wells were open again—even wells 26 and 28, briefly—because the town council would not even try to order homeowners to reduce their lawn watering. “We’re getting a cocktail of contamination in our water again,” Gillick complained that summer, even though there was no longer any evidence that industrial pollutants were actually reaching homes, thanks to the new carbon filtration system.
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Even a reconfirmation of the cancer cluster did not shake the town out of its torpor. The state health department completed its promised update of the cancer registry in April of 1997, issuing a report confirming Michael Berry’s earlier findings and updating his statistics through 1995, instead of 1991. The new data seemed to show that the frequency of brain tumors and leukemias had peaked in the late 1980s and early 1990s and had been easing since then, though the decline was still too recent to be convincing. For the Ocean of Love families, the new data provided a vindication of sorts. “I think once and for all we can put to rest the theory that there isn’t a problem,” Gillick said.
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She was irritated that there had been little progress on the case-control study. Jerry Fagliano and his team were still designing it with the help of a group of outside experts, including several Woburn veterans. Fagliano was also consulting with Gillick’s advisory committee, which had many ideas for expanding the study’s scope.