Published in the Asbury Park Press
By JEAN MIKLE
TOMS RIVER BUREAU
TOMS RIVER -- Nearly 40 years ago, a journalist and three state wildlife officials visited the Toms River Chemical Corp. plant for a tour.
A Toms River Chemical Corp. employee's description of the substance they saw in the Toms River is one of the centerpieces of a massive lawsuit filed last week against Ciba-Geigy Corp., Toms River Chemical's successor, as well as United Water Toms River, Dover Township's purveyor of public water.
The lawsuit was filed Aug. 1 on behalf of more than 200 people who believe they were harmed by exposure to polluted water and contaminated air emanating from the chemical plant.
The memo, titled "Waste Water Treatment Problems," was written by Toms River Chemical employee J.A. Meier, and is attached to the lawsuit as Exhibit B. It describes the appearance of the Toms River, which at the time was used for disposal of effluent from Toms River Chemical's dye-manufacturing operations.
"During the course of the visit quite a bit was mentioned about a condition observed along the river bank known as Sphaerotilus. This is a fungus condition which manifests itself in a slimy, brownish organic matter that floats in chunks in the water and then becomes attached to the river bank, as well as twigs and branches along the river," Meier wrote in the Aug. 9, 1961, memorandum.
Meier noted that the visitors from New Jersey Fish and Wildlife "expressed the thought that, 'We have a problem here,' " after viewing the brown, slimy substance floating in the river.
"I feel that we are constantly skirting on the thin edge regarding our waste water treatment problems," Meier wrote. "Furthermore, these problems will get greater in the future as the population of the area increases, and, presumably, our plant operations become more extensive."
Retired state wildlife official Paul D. "Pete" McLain, Toms River, was on the tour described in Meier's memo. A biologist for the state back in 1961, McLain said the most striking thing about the river pollution was the brown fungus -- a slime that coated bathers and sometimes the riverbanks, too.
"The best way to describe it is, it looked like snot. It hung on every branch and tree root along the stream," McLain recalled. "It would just flutter in the current."
McLain sent some samples to the Philadelphia Academy of Sciences for analysis.
"I was told it was identical to the fungus found back then in rivers up in Maine, where the paper mills discharged organics into the water," he said.
"That is the tip of the iceberg," Colts Neck lawyer Christopher Placitella said of Meier's memo. Placitella and lawyers Norman M. Hobbie, Angelo Cifaldi and Michael Gordon filed the suit last week in Ocean County Superior Court.
Placitella said he expects many more damning documents to surface as the lawyers continue their research.
The suit alleges 201 people lost loved ones, suffered severe emotional distress or live in fear of contracting cancer because Ciba was negligent in disposing of hazardous wastes from its dye-manufacturing operations, while United Water failed to protect the purity of the public water supply.
The lawsuit incorporates 11 grounds for complaint, including wrongful death, personal injury, the loss of property value, liability and pain and suffering.
The lawsuit is the second suit filed against Ciba this year by the four lawyers. In May, they sued the company on behalf of people who had not yet become ill. That class-action suit seeks payment from the company to cover the cost of monitoring people exposed to the contaminated water.
The second suit seeks the monitoring fund as well, but also adds another defendant -- United Water, and seeks unspecified compensatory and punitive damages for the 201 people, who include those who have lost family members to cancer and other illnesses.
Ciba officials left little doubt that the company intends to fully defend itself against the latest lawsuit.
"I think the company's position has been that it has cooperated with all federal and state investigations, and it has paid for independent experts to verify its findings," said Roseland-based lawyer Michael Rodburg, Ciba's corporate counsel. "It continues to believe that it has never harmed anyone in Toms River, so it would follow that it would vigorously defend itself against this lawsuit."
Rodburg said Thursday he had quickly reviewed the latest lawsuit, but he could not comment specifically on it until he had more time to review it.
"There are not a lot of specifics there," Rodburg said of the suit.
United Water officials, who were served with the lawsuit Friday, reserved comment until they had a chance to review the document, company spokesman Richard Henning said.
Exhibit A in the lawsuit is the Feb. 29 public health assessment on the Ciba site released by the state Department of Health and Senior Services and the federal Agency for Toxic Substances and Disease Registry.
The health assessment, which was completed as part of an ongoing study of elevated levels of childhood cancer here, concluded that people who lived here in 1965-66 may have been exposed to traces of aniline-based dyes and nitrobenzene from the Ciba site. Those chemicals seeped into wells used by Toms River Water Co., now known as United Water Toms River.
State and federal health officials have stressed that public health assessments are not intended to determine the cause of disease and instead are meant to document what is known about contamination at a site in an attempt to decide if further investiga-tion is needed.
Still, the four lawyers say that the health assessment shows a "completed exposure pathway" that allowed chem-icals from Ciba's operations to seep into the public water supply. About 35,500 people were served by the public water system here in the 1965-66 time period.
Hobbie said Meier's 1961 memo shows that Toms River Chemical offi-cials were aware that they were con-taminating the river for years before polluted water reached Toms River Water Co. wells in 1965.
"These guys knew five years before that the river was contaminated," Hobbie said. "There were no warnings, there was no public notice."
Placitella noted that the plaintiffs in the Ciba suit include several people who have been stricken with bladder cancer, a relatively rare form of cancer that he said can be directly linked to dye exposure.
"It's frightening, the number of blad-der cancers that have walked through our doors," Placitella said. "It's a signature disease of dye exposure. It's not the type of disease that is common in the general population."
Many residents of Dover Township believe that Ciba, whose local site was placed on the federal Superfund list in 1982, is responsible for health problems here. Proving that assumption in court could be difficult; it certainly will be expensive.
The four lawyers paid more than $21,000 to file the suit last week, and Placitella noted it will cost lots of money, and probably take many years, to resolve the two lawsuits.
The daunting cost of environmental litigation was at least one factor in the decision by a group of lawyers repre-senting families of local children with cancer to forgo filing suit. They instead opted to enter into cooperative agreements with Ciba, as well as United Water Toms River and Union Carbide Corp., the company responsible for Reich Farm, Dover's second Superfund site.
Jan Schlictmann, Mark Cuker and Es-ther E. Berezofsky, who represent the group Toxic Environment Affects Children's Health, or TEACH, have entered into two 18-month agreements with the three companies. The second agreement does not expire until January 2001.
Schlictmann, who fought a bruising eight-year battle to prove that polluted drinking water in Woburn, Mass., had caused a leukemia cluster in children, today believes that sharing information, and not initiating litigation, is a better way to pursue environmental pollution cases. Schlictmann's legal fight was dramatized in the best-selling book, "A Civil Action," which was made into a movie starring John Travolta as Schlictmann.
TEACH includes about 70 families of children with cancer, and last week, TEACH spokesman Kim Pascarella expressed concern that the latest lawsuit could jeopardize the companies' willingness to share information.
Rodburg said the latest lawsuit will not affect Ciba's cooperation with the TEACH group, as well as the company's willingness to provide informa-tion to the ongoing investigation into elevated levels of some childhood cancers here.
"I think it's fair to say that we have continued to meet with people and continue the process," Rodburg said. "It did not have any effect."
Placitella said while he respects the efforts of TEACH's team of lawyers, he is skeptical that cooperation with companies is the best way to obtain information about past pollution.
"I don't have any criticism of the people and what they're attempting to do," he said. "It's nonconfrontational. It's a lot cheaper. We have to spend a lot of money."
But Placitella noted that in his 20 years of pursuing environmental-contamination cases, "no company is 100 percent forthright."
"I've never seen one company in a toxic-injury case voluntarily give up all information . . . without a subpoena," he said.
Staff writers Kirk Moore and Carol Gorga Williams contributed to this report.
Published on August 6, 2000
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