Toms River

by Dan Fagin

  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.7

  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.9 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.10 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.

  These were the types of experiences that would leave any man short-tempered and willful, and Hueper was both. Immigrating to America in 1924 after getting his medical degree, he worked as a pathologist at a Chicago hospital before quitting in 1930 in a dispute over money. He then accepted an offer to join the University of Pennsylvania Cancer Research Laboratory in Philadelphia. Like cancer researchers all over the world at that time, he tried to emulate Katsusaburo Yamagiwa’s success in inducing tumors in test animals, but Hueper’s attempts to match the feat by injecting mice with arsenic compounds succeeded only in killing the mice. He did make progress on another front, however. Irénée du Pont, one of the richest men in America and a former president and longtime board member of the industrial behemoth founded by his great grandfather, bankrolled the research lab where Hueper worked. As a result, Hueper made several trips to the du Pont mansion in Wilmington, Delaware. Hueper was even invited to see the company’s massive Chambers Works complex across the river in Deepwater, New Jersey. Hueper’s lab experiments on chemical carcinogenesis were not going particularly well, but he had a natural affinity for workplace investigations. Perhaps a tour of one of the world’s largest chemical manufacturing plants might provide fresh inspiration.11

  DuPont, the company, and du Pont, the man, would come to regret the 1932 invitation, but their association with Hueper began innocently enough. During the tour of the factory complex, several chemists told Hueper that as part of its aniline dye production process DuPont was making large quantities of two chemicals Hueper knew well: benzidine and beta-naphthylamine. (The same two compounds were also being produced by the Cincinnati Chemical Works, a rival facility run by DuPont’s Swiss competitors.) Hueper knew about them because they had been identified as the likely causes of the bladder cancer clusters that had been detected in dye factories in Germany, Switzerland, and England as far back as 1895, the year Ludwig Rehn first took note of “aniline tumors” among dye workers in Frankfurt. Those European studies suggested that bladder cancer appeared in factory workers ten to fifteen years after they began handling the two chemicals; the Chambers Works had been producing aniline dyes since 1917, and it was now 1932. To Hueper, it was obvious what was about to happen: DuPont was going to face an epidemic of bladder cancers. In fact, it might have started already. Returning to Philadelphia, he dashed off a strongly worded note and sent it directly to Irénée du Pont. Hueper waited for months but got no answer, and when he raised the issue with his supervisor at the laboratory, du Pont’s close friend and personal physician Ellice McDonald, he was told there were no bladder cancer cases at the Chambers Works.

  A few months later, however, the medical director of DuPont turned up at the doorstep of Hueper and McDonald’s laboratory with alarming news: There were bladder cancer cases at Chambers. In fact, the company had identified twenty-three cases among its aniline workers. Hueper immediately wrote another letter to Irénée du Pont, this time proposing that the company create its own toxicological institute to study chemical risks to employees and consumers. Again, there was no response, until a few months later when Hueper accompanied McDonald on another house call to the Wilmington mansion. Pulling Hueper aside for a confidential chat, Irénée du Pont told him the timing was not right to fund an institute because the country was in the depths of the Great Depression and DuPont could not spare any more funds for health research.

  The following year, in 1933, Hueper felt the effects of the economic collapse more directly: McDonald fired him. The two men had clashed—Hueper regarded McDonald as an unethical self-promoter, and we can only guess what McDonald thought of Hueper—and now Hueper was told that the laboratory could no longer afford his salary. Desperate for work, Hueper returned to Germany with his wife and son to search for a medical position. Spaces had opened because so many Jews had fled after Adolf Hitler’s rise to power, but Hueper got no offers. The family returned to the United States, and Hueper finally landed a humble post at a small hospital in a Pennsylvania mining town. Then, in 1935, something surprising happened: Hueper received an offer from the director of the newly created Haskell Laboratory of Industrial Toxicology. The Haskell lab, under construction in Wilmington, was about to become the in-house health research arm of the DuPont Corporation. Irénée du Pont had taken Hueper’s advice after all, and now Hueper was being invited to be part of the team. He quickly accepted.

  Arriving in Wilmington, Hueper found that the bladder cancer epidemic he had predicted was in full swing, with more than fifty confirmed cases among dye workers. He quickly launched a long-term study of dogs exposed to beta-naphthylamine, the aniline dye ingredient known as BNA. DuPont had previously tested its other key dye ingredient, benzidine, on lab animals and had never found tumors, but the company always halted its experiments after less than a year. It was the first example of what Hueper would later adopt as a truism: Manufacturers could not be trusted to run carcinogenicity tests.12 He knew it took more than a decade of exposure to dye chemicals for humans to develop bladder cancer, so he thought that animal tests should last for several years at least—especially since both Yamagiwa and Kennaway had exposed animals to carcinogens for more than a year before seeing tumors. In his new lab, Hueper set up a much more thorough experiment in which sixteen female dogs, large enough to have their bladders checked with a cystoscope, would be given BNA with their daily chow.13 The dogs would be monitored at least two years, twice as long as previous experiments.

  While he was waiting to see what would happen to the dogs, Hueper decided to take another trip across the Delaware River to tour the BNA operations at the Chambers Works—this time as a DuPont employee. When he got there, Hueper was surprised to see that the BNA manufacturing area was extremely clean, with no telltale pow
der strewn on any surfaces. Spotting a foreman, Hueper told him, “Your place is surprisingly clean.” The reply came back: “Doctor, you should have seen it last night; we worked all night to clean it up for you.”14 He decided to make an impromptu visit to a separate building where benzidine was made. This one had not been cleaned up, and the loose powder was everywhere. “With one look at the place, it became immediately obvious how the workers became exposed,” he later wrote. Fifteen years earlier, in 1921, the Geneva-based International Labour Office had examined the accumulating evidence about dye manufacture and bladder cancer and had identified benzidine and BNA as the most likely suspects, urging manufacturers to adopt “the most rigorous application of hygienic precautions.”15 Judging from Hueper’s visit to the dye production buildings at the Chambers Works, that message had apparently never reached the DuPont Corporation. Angry about what he regarded as an attempt to mislead him about conditions in the factory, Hueper reacted in typical fashion: He dashed off yet another note to Irénée du Pont, this one complaining about the “deception.” As usual, there was no reply, but Hueper was never again allowed to tour the dye operations at the Chambers Works.

  Hueper’s effective banishment from the factory floor was a sign that something fundamental was changing at DuPont—and in the chemical industry as a whole. Manufacturers had always downplayed the health consequences of their business practices, but their tactics tended to be subtle because nothing more aggressive was required. Governments lacked the popular mandate and medical evidence needed to challenge them. But by the mid-1930s, the balance was shifting. Kennaway’s 1932 confirmation that benzo(a)pyrene was carcinogenic energized the worldwide search for additional industrial chemicals capable of inducing malignancies. By 1936, more than a dozen had been shown to be carcinogenic, and DuPont’s initial enthusiasm for Hueper’s aniline research program was flagging by the day. The company published its last study on bladder cancer at the Chambers Works in 1937, identifying eighty-three cases—fifty-six of them diagnosed in the previous three years.16 Henceforth, DuPont would keep the growing body count to itself, although in a private letter in 1947 the factory’s medical director observed that every one of the workers who had handled BNA in the early years of the chemical’s production at Chambers had developed bladder cancer. Public disclosure of that fact might have helped workers at the Cincinnati Chemical Works, where a similar bladder cancer cluster was emerging in the late 1940s, but DuPont did not publish what it knew.17 The era of scientific openness was ending. A new era of regulatory warfare was beginning.