Toms River by Dan Fagin Read Free Book Online Page B

events were benign—schoolchildren went on hikes and picked up litter—but the New Jersey legislature marked the date by creating a Department of Environmental Protection, which assumed the pollution-control duties formerly—and indifferently—performed by the state health department. An even more important change was that Congress and President Richard Nixon, mindful of public opinion, suddenly became very aggressive about asserting a federal role in combating pollution, a task that had almost always been left up to the states and cities.
    It was a drastic shift. Major corporations like Ciba were accustomed to running over and around local regulators, who could not hope to match the companies’ legal and technical expertise or their financial resources. Before public opinion began shifting in the 1970s, mayors and governors were much more likely to side with corporations than with their own regulatory agencies in disputes over pollution. Even in a state like New Jersey, where antipollution laws that included potential criminal penalties had been on the books for decades, environmental violations had always been considered to be a matter for civil negotiation, not criminal prosecution. This was the milieu in which Toms River Chemical had thrived for so long.
    The brand new U.S. Environmental Protection Agency, however, would be much more difficult to stiff-arm. Its newly hired lawyers and engineers were specialists with advanced technical training. Many were also idealists who were less subject to political pressure than their state and local counterparts. They were from out of town, and their priority was to establish the primacy of federal environmental law, not to protect local jobs. Toms River Chemical began gearing up for conflict, creating a nineteen-member department to oversee pollution issues and conducting “teach-ins” on environmental compliance for more than a thousand employees. 18
    EPA officials paid their first visit to the Toms River factory in July of 1971; they brought a lawyer to show that they meant business. Congress had not yet given the new agency authority to regulate water discharges, but Nixon had already announced that the EPA would begin enforcing a legislative relic known as the Refuse Act of 1899. 19 This dusty law had been mostly ignored for seventy-two years; its breathtakingly broad language forbade the discharge of “any refuse matter of any kind or description whatever” into navigable waters or their tributaries without the permission of the U.S. Army and its Corps of Engineers. 20 When company lawyers trotted out their shopworn claims that Toms River Chemical was already doing all it could to cut its discharges, EPA officials pointed out that other manufacturers were doing better. 21 And when the company asserted that its discharges were legal, the agency pointed to the Refuse Act of 1899.
    Finally recognizing that the regulators were serious this time, Toms River Chemical tried to head off a prosecution by promising improvements, but by 1972 it was too late. Utilizing the Refuse Act, the United States Attorney’s Office in Newark had just wrapped up a successful civil prosecution of more than a dozen New Jersey towns that had been dumping raw sewage sludge into the ocean. 22 Now the same federal prosecutor, Carl Woodward III, was turning his attention to the only privately owned ocean outfall line in the state. Subpoenas soon arrived at the offices of Toms River Chemical, summoning its executives to testify before a grand jury in Newark. “It was a very big case, but it wasn’t difficult; the company had documented everything it did and we subpoenaed those records,” Woodward remembered many years later. On July 13, 1972, the grand jury handed down an indictment charging Toms River Chemical with 206 violations of the Refuse Act for discharging chemical waste into the Atlantic Ocean and the Toms River. Each of the 206 counts (one for each day in 1971 and 1972 the EPA had