Ciba-Geigy Settlement Violates State, Local Laws, Save Barnegat Bay Appeal Says

TOMS RIVER, NJ — Save Barnegat Bay and Toms River are asking New Jersey's Appellate Court to overturn the state Department of Environmental Protection's Ciba-Geigy settlement with BASF, calling it "a sweetheart deal" that violates the New Jersey Constitution along with state and local laws.

The appeal, filed Tuesday, accuses the NJDEP of violating the state Constitution, the Spill Compensation and Control Act, along with Toms River zoning ordinances in the settlement the NJDEP announced on Aug. 16.

Under the Natural Resources Damages settlement, which NJDEP first announced in December 2022, BASF will pay the state $500,000, and will pay for the construction/development of nine natural resources restoration projects on 375 acres at the site. They include an environmental education center, a pollinator habitat, and conservation area for the endangered northern pine snake along with the Eastern box turtle and some species of bats, which are listed as species of special concern, according to the NJDEP.

The settlement also provides for the permanent preservation of about 1,000 acres of the site.

BASF will also conduct nine natural resource restoration projects on 375 acres of the preserved land. Planned projects include an environmental education center, a habitat for pollinators, and some conservation for northern pine snakes, bats, and turtles.

In the appeal, Save Barnegat Bay says the state "failed to accurately quantify the damages done to the offsite environment of Ocean County in their settlement," including damage to the Toms River, Barnegat Bay, the Atlantic Ocean, and the Kirkwood Cohansey Aquifer.

"In addition to this oversight, the DEP failed to provide any off-site restoration plans, choosing instead to only provide projects on the Superfund site itself including a conservation easement, which is a violation of Toms River’s zoning law," the appeal says.

Toms River officials have opposed the settlement since it was announced in December. In addition to public comments and a pair of public meetings, the township council approved an ordinance in March banning 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 sweetheart deal that NJDEP made with BASF is woefully inadequate and does not compensate the people of Toms River and Ocean County for the damage that has been done to our environment by the corporate polluters," Mayor Maurice B. Hill Jr. said in the appeal announcement. "We are fortunate that Save Barnegat Bay has stepped up to assemble a top-notch team of legal and environmental experts to lead this fight and to finally get justice for the environmental destruction our community has endured for decades."

The appeal specifically cites:

"NJDEP (1) did not deposit settlement funds in NJ constitution NRD settlement account, (2) approved Plan A of the settlement agreement (restoration projects and conservation easements) in violation of local ordinances, (3) approved Plan B (alternative NRD restoration projects) without describing those projects for the public, (4) approved Plan C (cash payment) without telling the public the amount in violation of law."

The appeal asks the courts to nullify the agreement.

In addition, Save Barnegat Bay and Toms River are looking for funding for projects that are suggested by the Ocean County towns most affected by the Superfund site, projects that "would provide ecological uplift to help restore the damage done to their land and water," the announcement said.

"The DEP's decision to deny the towns of Ocean County stakeholder engagement in the selection of restoration projects is a direct violation of what their department stands for," said Britta Forsberg, executive director of Save Barnegat Bay.

NJDEP officials repeatedly said local officials and residents would have input in the restoration projects at the site, including what form they should take, a point Commissioner Shawn LaTourette made in an interview with Patch in February. The NJDEP design process timelineincludes just one opportunity for community input, however, with the rest of it controlled by NJDEP and BASF.

Read more: Proposed Ciba Settlement 'Not About Punishment': DEP Commissioner

"I said that we would see you in court and here we go," Forsberg said. "This is just the beginning of what will be a long battle for justice for Toms River and the surrounding Ocean County towns and we are ready to go the distance and stand together with Toms River and Ocean County."

Read more:

• Ciba-Geigy Site Settlement Would Preserve 1,000 Acres As Open Space
  
• Ciba-Geigy Settlement Can't Overlook Cancer Cluster: Toms River Mayor
• Ciba-Geigy Proposal Blasted On Lack Of Toms River Input, Transparency
• Ciba-Geigy Settlement Reached: See Plans For Toms River Superfund Site
• Proposed Ciba Settlement 'Not About Punishment': DEP Commissioner
• Reflections On 'Chemical Town'
• Book Explores Toms River's Toxic History With Industrial Pollution
• Ciba-Geigy Corp. Proposes Multimillion-Dollar Settlement

Information about the ongoing EPA-led remediation at the Ciba-Geigy site can read here.