TOMS RIVER, NJ — When the New Jersey Department of Environmental Protection meets with the public Monday evening about the proposal to turn about 1,000 acres of the former Ciba-Geigy site into a park, DEP Commissioner Shawn LaTourette is hoping the session will help people see the proposed settlement as a positive for Toms River.
Reaching that goal will be an uphill battle, however, one LaTourette acknowledges is due in part to how DEP has handled the announcement of the proposed natural resource damages settlement with BASF from the start.
“This is about making sure a groundwater resource is protected in perpetuity,” LaTourette said in an interview with Patch in February. “I do not believe we have done a good job” of explaining that, he said, but that is the goal of the meeting at 6 p.m. in the auditorium at Toms River High School North.
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Toms River officials say it’s more than just a matter of how the DEP handled the announcement; it is about a lack of involvement in the negotiations in a settlement they say benefits BASF and NJDEP and offers nothing to Toms River.
“We had no real involvement in the process,” Mayor Maurice “Mo” Hill said. “The DEP gets the fine, BASF gets the tax appeal. Toms River is left still serving the punishment.”
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During the interview with Patch, LaTourette addressed some of the questions and criticisms that have been raised in the weeks since the NJDEP’s Dec. 5 announcement that it was seeking public comment on the proposed settlement.
LaTourette acknowledged the reaction of the community to the proposal, saying the discussion opens a deep wound in the community’s soul that has not healed. But he said the proposed natural resources damages settlement is not about additional punishment for the contamination done by Ciba-Geigy in the 1960s, ’70s and ’80s.
Ciba-Geigy was criminally indicted, LaTourette said, and paid millions of dollars in fines. Cleanup at the Superfund site continues, under the supervision of the U.S. Environmental Protection Agency, and BASF is responsible for those costs, he said.
Putting a price tag on nature
The natural resources damages settlement phase comes after the punishment, with the goal of making sure the property is restored and protected forever, LaTourette said. “By no stretch of the imagination are we suggesting Ciba can make up for its heinous acts by building a park.”
LaTourette continued to decline to release any information on how NJDEP came to its determinations of the natural resources damages, saying it remains an enforcement matter and therefore is confidential.
He also rejected suggestions that there should be a dollar amount put on the cost of the natural resources damages.
“I don’t want folks to have in their minds that a single blade of grass is worth a quarter,” he said. “Talking about this in dollar figures is wrong. You put a price tag on nature when you can’t restore it.”
“We will be leaving this space better than we found it, forever,” LaTourette said.
He said the assessment of the damages wasn’t a document to be released, but a process. And it’s a process totally under the NJDEP’s control, officials from the NJDEP said and the EPA confirmed.
“The proposed Natural Resource Damages settlement is between the New Jersey Department of Environmental Protection and the property owner of the Ciba Geigy Superfund Site, BASF. EPA is not a natural resource trustee and is not directly involved,” said Stephen McBay, a spokesman for the EPA.
The EPA was “made aware of its general elements, and we reviewed aspects of the proposed settlement agreement that relate to EPA’s oversight of the selected cleanup for the site,” McBay said. The agency says it will not have a negative impact on the Superfund cleanup.
But the EPA does not have to sign off on the proposed settlement, he said, and it is not subject to the EPA’s stringent rules for a natural resources damages process, which require public hearings at every step, including determining the extent of the damages.
McBay said BASF will continue to be responsible for the site cleanup.
“This work includes operating and maintaining the groundwater treatment remedy that keeps contaminated groundwater from reaching the Toms River, maintaining the on-site caps put in place as part of the completed soil cleanup and monitoring groundwater and surface water to ensure that the cleanup remains protective,” McBay said.
The EPA is set to release a 5-year update on the cleanup at the site in May. LaTourette said that process is separate and has no bearing on the natural resources damages assessment and settlement.
LaTourette also said he understands the discussions have unleashed raw emotions, and said he empathizes with that.
While he has been accused of upending the state’s natural resources damages laws while he was an attorney working to defend chemical companies from New Jersey’s environmental laws, LaTourette said he spent time before that talking with victims who were affected by chemical pollution, advocating for their rights as a community organizer.
LaTourette said he was hired by NJDEP because he was beating the state repeatedly, and the state wanted to stop that.
“They hired me so I could fix it so the polluters couldn’t win,” he said.
“We were dictated to”
LaTourette also pushed back on the complaints from Toms River officials that they were not involved in the negotiations, saying, “We consulted them consistently” during the process.
“There was never any give-and-take,” said Louis Amoruso, the township business administrator.
“We never had a seat at the table,” Mayor Maurice “Mo” Hill said.
“We were dictated to,” assistant township attorney Anthony Merlino said. “We were presented with the proposal and told ‘this is going to be good for Toms River.’ “
Emails and records of scheduled telephone meetings obtained from the NJDEP through an Open Public Records Act request and corroborated by Toms River officials showed NJDEP officials first contacted Toms River officials about a possible settlement on Oct. 7, 2020.
That October meeting was a Zoom call, Merlino said, with members of the NJDEP staff. LaTourette did not appear to have been part of the meeting, based on the invitees included in the record provided by NJDEP.
The next communication between NJDEP and Toms River that NJDEP provided is a letter dated May 27, 2022 that Merlino wrote to NJDEP. It references an August 2021 meeting between NJDEP and Toms River officials, but NJDEP did not provide any email or telephone records that indicated how that meeting was arranged or where it took place.
“Comments made at your recent appearance in South Toms River seemed to indicate that a settlement is imminent the Department’s NRD claim against Ciba Specialty Chemicals Corp. (now BASF),” Merlino wrote to NJDEP. “If true, we strongly urge the DEP defer any resolution of the matter until Toms River officials are fully briefed on the settlement and given the opportunity to submit additional proposals.”
“Other than a late-stage meeting last August, Toms River has not been invited to participate in the process,” he wrote. “The community still bears the scars of Ciba’s half-century of environmental degradation and any settlement will have profound and lasting environmental and economic impacts on the Township going forward. Toms River deserves to be at the negotiating table.”
Merlino said Toms River did not receive a reply to the May 2022 letter.
Merlino, Amoruso and Hill said the August 2021 meeting was the only one where anything they said had an impact. Originally, Toms River was going to be saddled with the costs of building the park in whatever form it would take, but after Toms River officials objected to that, the agreement was changed to BASF being responsible for those costs.
The next communication provided by NJDEP was an exchange of emails setting up a meeting in late November, just days before NJDEP announced the proposed settlement and public comment period.
During that November meeting, Merlino said, NJDEP officials wanted Toms River to come out in support of the settlement, in spite of Toms River officials having no substantial input. Toms River officials refused to support it, he said.
“We asked to see the press release ahead of time so we could respond right away,” Hill said. “They wouldn’t let us do that.”
250-acre dispute
Under the NJDEP’s proposed settlement, BASF would retain control of 250 acres for possible development.
The piece of land, Amoruso said, is a perfect square in middle of the property. He said BASF already approached the town about a potential development there, even before the NJDEP announced the proposed settlement.
That potential for BASF to make money from development on the site — and the $17.3 million tax appeal that BASF won — are what seem to stick in the craw of Toms River officials most.
“We want control of that 250 acres, we want it preserved,” Hill said.
While LaTourette suggested during the interview with Patch that Toms River should go back to court if the town feels there is more BASF should be held accountable for, Merlino said that’s not possible when it comes to the tax appeal.
“We took that all the way to the (New Jersey) Supreme Court,” Merlino said. “That’s as far as we can go.”
Merlino said that because of how BASF approached it, limiting its appeal only to specific years instead of making a general claim that the property is worthless, there are no avenues for Toms River to revisit the tax appeal.
“My duty and responsibility is to ensure the community gets recovery and preservation of groundwater,” LaTourette said, adding that the settlement does not preclude or undermine Toms River’s ability to seek more damages from BASF.
The $100,000 BASF would pay under the proposed settlement is to cover NJDEP’s costs in preparing the assessment, he said.
Toms River officials will have plenty of input on the park at the site, that BASF will be paying for, LaTourette said.
A move to block?
Toms River officials haven’t sat back waiting for a response from NJDEP on the town’s complaints about the settlement.
On March 7, the Township Council voted to approve an ordinance on second reading that bans a conservation easement or deed restriction by a property owner that “is not part of an approved plan for development approved by the Township Planning Board or Zoning Board of Adjustment,” in the township’s light industrial and industrial zones.
That includes the Ciba-Geigy property. The ordinance goes into effect March 31 — 20 days after it was published in a public notice (which happened March 11).
Britta Forsberg, executive director of Save Barnegat Bay, at the council meeting said the ordinance allows Toms River to control what happens at light industrial and industrial sites through the variance process.
How NJDEP responds to that is yet to be seen, but is likely to come up at Monday’s hearing.
“All we wanted was to be part of the decision-making process,” Amoruso said.
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Read more: Ciba-Geigy Site Settlement Would Preserve 1,000 Acres As Open Space
Information about the ongoing EPA-led remediation at the Ciba-Geigy site can read here.
Read more about the Ciba-Geigy site:
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