Toms River

by Dan Fagin

  By the end of 1998, the state health department had completed all but a handful of the planned two hundred interviews for the case-control study. Despite all the delays and compromises, the study was off to as promising a start as Jerry Fagliano could have hoped. All forty case families had agreed to participate, which was a relief because he would need as many as possible to get a statistically significant result. The case families’ cooperation was no surprise: They were outsiders, the minority in town who wanted so badly to get to the bottom of the cluster mystery. The surprise was that recruitment of healthy children was going well, too. About 80 percent of the families asked to serve as controls agreed to do so. With such a high recruitment rate, no critic could claim that the control group was unrepresentative. Now Fagliano had one thing fewer to worry about.

  A few weeks later, on a rainy Friday night in Toms River, Kim Pascarella and a dozen other TEACH parents went to the movies. A Civil Action was playing, with John Travolta starring as Jan Schlichtmann. Linda and Michael Gillick had traveled to Boston for the premiere, appearing at a forum organized by an environmental group. A deluge of publicity accompanied the movie’s opening, with many of the stories featuring the real-life Schlichtmann, energized by his return to the spotlight. In interviews, he often brought up the Toms River case, describing it as an opportunity to redo Woburn “the right way.” Town officials seethed at this latest eruption of unwanted attention.

  On the other side of New Jersey, near Trenton, a group of state officials involved in the Toms River investigation had their own movie night. They got Chinese food beforehand and joked about which actors would portray them if there were ever a movie about Toms River. Jerry Fagliano did not go; he had read the book, and that was enough.

  The film took many liberties with the Woburn story. Travoltaas-Schlichtmann ended the movie bankrupt but ennobled, instead of alienated and severely depressed. There was no blizzard of legal motions, no tedious wrangling about the toxicity of trichloroethylene or the risk factors for childhood leukemia. Even so, the emotional core of the story rang true to the Toms River families; they felt that they were living the same story. In Woburn, they saw another town with secretive polluters, tainted water, and unresponsive public officials; they saw another group of suffering families trapped in the twilight between deeply held belief and demonstrable scientific proof. “It was Hollywood entertainment,” recalled Pascarella, but it was also “the synthesis of everything we had gone through.”

  By the end of the movie, some of the Toms River parents were so overcome with emotion that they did not even notice the text that briefly appeared on the screen just before the final credits. It informed viewers that Schlichtmann “is currently representing sixty families in Toms River, New Jersey, in another contaminated water case.”

  CHAPTER TWENTY-ONE

  Surrogacy

  He spent the last fifteen years of his life in furious pursuit of scientific immortality, producing 106 manuscripts—only eight of which were published before he died in 1541.1 So it’s a safe bet that Paracelsus would have reacted with his usual churlishness if he had known that he would be remembered best for a phrase he never wrote: “The dose makes the poison.” What he actually wrote in 1538, ten years after fleeing Basel, was less pithy: “All things are poison, and nothing is without poison; the dose alone makes a thing not poison.”2 The Paracelsian idea that the quantity of a potentially harmful substance matters just as much as its inherent qualities would become the bedrock tenet of toxicology—and a major dilemma for the researchers seeking to untangle the relationship between pollution and cancer in Toms River.

  By the twentieth century, all experimental scientists looked for dose-response relationships in their results. It was a simple idea with profound implications. In an environmental health study, the group exposed to the highest dose of a hazardous compound (or mixture of compounds) should have the greatest risk of disease, while those receiving a moderate dose should have moderate risk and those getting the lowest dose should have the lowest risk. The relationship between dose and response was not necessarily linear; sometimes, it formed a curve when plotted as a graph. The precise shape was less important than the underlying relationship: Higher exposure should correlate with greater risk. (Researchers now know that some hormonally active synthetic chemicals can pose bigger health risks at very low doses than larger ones, but in general Paracelsus’s rule still applies.)3 Without a dose-response curve, the evidence of a link between exposure and disease would always be suspect.

  By that standard, the Toms River case-control study could never be fully legitimate scientifically because no one would ever know exactly which chemicals, at what concentrations, were in the air and water during the 1962 to 1996 study period. The water may have smelled, and the smoke may have been colored, but the precise causes would always be a mystery because there was so little environmental testing at the time. Lacking a time-traveling machine, the researchers trying to understand what had happened in Toms River would have to rely on extrapolation and inference, and they would need surrogates.

  Still, there was no stopping now. The politicians had promised to leave no stone unturned in searching for the cluster’s causes, and so had the lawyers and scientists. This was the sociological equivalent of the dose-response curve: As the publicity, expense, and time accrued (by early 1999, the investigation was three years old and had cost taxpayers roughly $10 million), the investigators felt that they had to respond with credible answers. If there were data gaps about past hazards, they would just have to be circumvented.

  On a typical summer day in Toms River, sixteen million gallons of water coursed through 488 miles of pipes. Water entered the system from twenty-three wells in eight well fields and exited via the faucets of more than forty-five thousand homes and businesses. Morris Maslia’s formidable task was to determine the provenance of each gallon—where it came from and where it went—not only currently, but in every single month all the way back to January of 1962. The success of the Toms River studies depended on it. An environmental engineer at the federal Agency for Toxic Substances and Disease Registry, Maslia specialized in estimating contamination levels at Superfund sites, but he had never tried to tackle anything as complicated as the Toms River investigation. He had never tried anything as costly, either: The water model’s price tag would ultimately top $5 million, with the funds coming from special congressional appropriations. “Being naive, I thought we could do this pretty easily and quickly,” he remembered. “That was wrong.”

  The computer model Maslia started building in 1997 was an attempt to cope with the data gaps in Toms River. Lacking reliable records of what was actually in the town’s drinking water in those earlier years, Maslia would have to calculate risk indirectly, based on which wells supplied which neighborhoods. The more than seven hundred Toms River children in Jerry Fagliano’s two studies were born between 1963 and 1996. If Maslia could figure out which wells had supplied the homes of each child and pregnant mother, then Fagliano could test his hypotheses about the role of water pollution in triggering childhood cancer. A team from Rutgers, similarly, was trying to develop estimates of which neighborhoods had borne the brunt of air pollution from Ciba and downwind radiation from the Oyster Creek nuclear plant. They had even less information to work with than Maslia did, and they had to do even more guessing. For historical records on wind direction and air pressure, the Rutgers group had to rely on a weather station fifty miles away. And since there were no reliable records on the volume and composition of Ciba’s air emissions over those thirty-four years, the group had to guess based on the factory’s production records.

  Maslia soon recognized his folly in thinking that his reconstruction of the water distribution system could be done quickly. Before he could even consider building a model of the piping network as it existed as far back as 1962, he had to create an accurate model of the present system. In Woburn, Peter Murphy had gone through the same process, but Maslia faced a much tougher chall
enge. Toms River’s twenty-three wells pumped four times as much groundwater as Woburn’s eight wells and served more than twice as many homes. There were six pumping stations and nine storage tanks in Toms River, which allowed the water company to react to huge swings in demand from season to season by drastically changing the way water circulated through its piping network. During the winter, the water company would shut down as many as half of its wells and then bring them back online during the spring, one at a time. By midsummer, every well would be pumping at close to capacity, followed by a reduction through the fall. The yearly oscillations meant that a family’s water in February probably came from a different combination of wells than in August. For his model to be nimble enough to account for the seasonal shifts, Maslia would have to include all sixteen thousand pipe segments, incorporating variables as obscure as the size of each storage tank and the composition of each pipe. (Water moved more slowly through rough concrete than smooth plastic.)4

  By the time Maslia finally finished his model of the current piping system, two years had passed. It was early 1999, and he now knew which water well, or combination of wells, was supplying each household in Toms River. But he still faced the even more difficult task of adjusting his present-day model to mimic the pipe network as it had functioned as long ago as 1962. In fact, he would have to create 420 models, one for each month from January 1962 to December 1996. Maslia would have to look back in time, to the days when Toms River was just a very small town with a very big factory. In the meantime, the present-day town would have to keep waiting.

  Bruce Molholt first heard Linda Gillick on the radio in early 1999; it was love at first sound bite. “You could just feel her mind galvanizing, getting everyone together to work on this thing,” he remembered. “I knew I wanted to try to help.” Molholt’s academic training was in microbiology and genetics, but his passion was studying the health effects of industrial chemicals, having spent four years at the EPA as a toxicologist in the Superfund program. Earlier, as a young professor at the University of Kansas, Molholt had led teach-ins against the Vietnam War. His politics had not changed since then, even though he was almost sixty now and worked as the director of toxicology and risk assessment for a large environmental consulting firm with many industrial clients.

  So when a friend told him that Gillick was going to be interviewed on a Philadelphia radio show, Molholt stepped out of his suburban office and into his car to listen. “I was curious because I had already heard about the Toms River case, and had told my staff that this was something that really should be pursued,” he recalled. By the time the interview was over, Molholt was ready to follow his own advice. He contacted Gillick, who put him in touch with lawyer Mark Cuker, who made Molholt an unpaid consultant to the legal team. That did not sit well with Molholt’s bosses at Environmental Resources Management, which listed both Ciba and Union Carbide as occasional clients. When he refused to stop assisting with the Toms River case, Molholt was told to empty out his desk and leave. He didn’t mind; he wanted to work on something he believed in.

  The day after he resigned, Molholt showed up at Cuker’s law office. It was the summer of 1999, and Cuker was glad to see him because it was time to figure out whether the families had a case, and against whom. Over the previous eighteen months, as Morris Maslia worked on his water model and Jerry Fagliano collected his questionnaire results, Cuker had amassed enough documents to fill three hundred file boxes. There were technical assessments as thick as phone books, yellowed lab reports, correspondence, plume maps, and all sorts of other records relating to the forty-five-year history of chemical pollution in Toms River—not just at Ciba and Reich Farm but all over town. Some documents, surprisingly, came directly from Ciba, Union Carbide, and United Water. Company attorneys had sent those records to Cuker, who had responded in kind by sending them his clients’ medical records—all without being ordered to do so by a judge, whose intervention would have been required if a lawsuit had already been filed.

  The highly unusual voluntary exchange of documents was the most tangible sign of the changing relationship between the two sides. The lawyers had toned down the bombast of their initial gathering back in early 1998. There had been more than a dozen meetings since then, with no more insults or threatened walkouts. To the shock of everyone but Jan Schlichtmann, they seemed to be making progress—though exactly what they were progressing toward was never defined. One of Schlichtmann’s rules was that the “s-word”—settlement—could not be discussed. This was not a negotiation or even a prelude to a negotiation, Schlichtmann insisted. It was, instead, a “process,” a mutual search for answers to the families’ questions about whether pollution was responsible for their children’s cancer. Perhaps because neither side yet had much to lose, the opposing attorneys discovered that they were actually learning from each other. “It takes time, it takes interaction, to build up that trust, but over a period of time we began to trust each other,” remembered William Warren, the Union Carbide lawyer. Things were going well enough that the attorneys extended their clock-stopping agreement. Later, they would agree on five additional extensions.

  The families, however, were less enthusiastic than their lawyers. Schlichtmann had touted his “process” as a way for the parents to participate in the search for answers in Toms River, yet many of them still felt excluded—even Bruce Anderson, who saw the lawyers more than anyone except Linda Gillick. Anderson had volunteered to scan thousands of pages of medical records and technical reports onto computer disks for Cuker. Even so, he did not feel like a full participant in the case. “We had no real involvement,” Anderson remembered. “It was disappointing.” Schlichtmann had told the families back in 1997 that the case could be resolved in eighteen months. That interval had passed, yet the lawyers had not even begun to talk about a settlement. Everyone else in town seemed to have long since moved on (the big local topic during the summer of 1999 was Toms River East’s second consecutive trip to the Little League World Series—they lost in the U.S. championship game), but the TEACH families were still trapped in an endless cycle of information gathering. Every few months, Cuker and his law partner Esther Berezofsky would drive to Toms River to update them. As time passed, the meetings grew tenser. “I would say pretty much all of them were impatient,” Berezofsky recalled. “After we would explain what we were doing they would come around, but we would always say that we weren’t going to hold off forever on moving to the next step.”

  So Bruce Molholt’s arrival in Cuker’s office in mid-1999 came at a propitious moment, just as the lawyers were trying to focus their case where the evidence for causation was strongest, in preparation for settlement negotiations. Cuker had spent the previous eighteen months investigating all sorts of theories about what might have caused the childhood cancer cluster, including radiation from the Oyster Creek nuclear plant and leaks from Ciba’s ocean pipeline and the old town landfill. Now he and Molholt studied a map showing the home addresses of his sixty clients. There seemed to be a grouping near the Parkway well field, but it was not an obvious cluster; collectively, the sixty cases had just one exposure in common: They all got their drinking water from the Toms River Water Company and its successor, United Water of Toms River. Back in 1996, when he was designing the case-control study, Jerry Fagliano had concluded that if pollution were responsible for the cluster, the water network was the likeliest exposure route. Now, Cuker and Molholt were coming to the same conclusion, spurred by the knowledge that Ciba’s waste had tainted the Holly Street wells in the 1960s and that Union Carbide’s waste had done the same to the Parkway wells in the 1980s and 1990s.

  Just a few weeks after Molholt’s arrival in Cuker’s office, the government gave the families’ case a powerful boost. The state health department and the ATSDR finished a new health study for Reich Farm, concluding it was “a public health hazard due to past exposures.” A few months later, they issued an identical finding in a report about Ciba. In both cases, the agencies concluded, dumped chemic
als had traveled down a “completed exposure pathway” from the sites to backyard water wells and public wells—and then to the people of Toms River, who were also directly exposed to toxic air emissions from Ciba.5 There were still more steps to go in the government’s investigation, including the completion of Morris Maslia’s water model and its merging with all of Jerry Fagliano’s data on the study children. But the ATSDR’s declarations that toxic pollutants from Ciba and Union Carbide had definitely reached the people of Toms River suggested that the families and their lawyers might be able to wring a financial settlement out of the companies even if the government investigation ultimately did not uncover a strong correlation between cancer risk and exposure to contaminated air or water. Fagliano’s study results would be scientifically meaningful only if he could show that they were statistically significant and therefore very unlikely to be due to chance. If there were a lawsuit, however, the families’ attorneys would not have to meet such a high standard. A circumstantial case tying the dumped chemicals to the sick children might be enough to convince a jury, which is why the ATSDR’s findings were so helpful to the families.

  Mark Cuker set about trying to build a case that he could press no matter how the government investigation turned out. As a first step, he put Molholt to work going through stacks of chemical manifests and government reports to try to identify the specific ingredients of the chemical goulash that had been dumped at Reich Farm and Ciba. One old EPA document—Cuker called it the “purple sludge” report—described a six-foot-thick layer of waste beneath one of the sludge dumps at Ciba. The EPA tested the purple muck and did not detect any of the 130 organic chemicals on its agency’s “target compound” list for Superfund sites.6 The agency’s contractors could see the sludge and they could smell it, but under Superfund rules it did not exist. In fact, only a few of the 156 chemicals and six dyes Ciba was producing in the mid-1980s were on the Superfund target list.7 What that meant to Molholt was that the government’s by-the-book tests of the river water probably missed many Ciba contaminants—just as routine testing of the Parkway wells had missed styrene acrylonitrile trimer, another pollutant too arcane to appear on an EPA checklist.