By:  Daniele Cervino, General Counsel and Senior Vice President
Published:  NJPA Journal, July 13, 2007

In 2006, Kiddie Kollege Day Care Center was closed by New Jersey Department of Health and Senior Services (NJDHSS) because elevated levels of mercury were found in the children’s blood.  It was discovered the day care center had been operating on the former site of a mercury thermometer factory.  The how and why the center was allowed to be built are still being investigated.  The Governor and Legislature responded quickly to prevent a similar incident with emergency regulations adopted on Oct. 7, 2006, and legislation on Jan. 11, 2007.  The intent of the new law and regulation is to ensure there is no future environmental risk to children at day care centers licensed by the state.

New Certifications & Testing
Effective January 1, 2007, the Department of Children and Families (DCF) Office of Licensing requires certain written certifications to be submitted with any first time or renewal day care center license application which indicates that the building housing the day care center was not previously used as a nail salon, dry cleaner, storage, high hazard, factory or industrial business as defined in the Uniform Construction Code.  If the center is located in the same building as a dry cleaner or nail salon, the operator must provide an Indoor Environmental Health Assessment (IEHA) that demonstrates there is no impact on the day care center.  All applicants, regardless of historical or adjacent building use issues, must also certify that the center provides safe drinking water and complies with all other DCF regulations regarding lead, asbestos and radon.  There are currently no guidance documents on what to test the air quality for or what standards will be used to confirm compliance.

NJDEP No Further Action Letter Required
As of June 1, 2007, that all new or renewal day care center applicants must obtain a No Further Action letter from New Jersey Department of Environmental Protection (NJDEP).  The applicant will need to conduct a Preliminary Assessment to obtain a No Further Action letter from the NJDEP.  The NJDEP is setting up fixed fees.

Playground Sampling
Soil sampling is generally required in play areas, unless there is asphalt, concrete or rubberized mat surface.  Under these conditions, a notarized letter stating this fact is to be submitted to the Office of Licensing at DCF as part of the overall initial application or renewal application.
 
Building Permit Concerns
The process of issuing a new day care center building permit begins with an application to NJDHSS to obtain a Safe Building Interior Certification.  Note this approval is not under the jurisdiction of the NJDEP.  The new law stipulates that no construction permit for a day care center will be issued for the construction, reconstruction, alteration, conversion or repair of any building on a site that was previously used as a nail salon, dry cleaner, storage, high hazard, factory or industrial business, a known contamination site or Industrial Site Recovery Act site, unless the applicant submits certain proofs to the construction official.  The applicant must provide a NJDEP Remedial Action Workplan (RAW) for the entire site or proof that the site has been remediated consistent with the NJDEP remediation standards and a NFA letter has been issued by the NJDEP for the entire site.  The potential for contaminants needs to be assessed in and around the building.
The applicant cannot obtain a building permit until it shows the Construction Officer of the local municipality the NJDEP Remedial Action Work Plan (RAWP) for the entire site or a No Further Action (NFA) letter.  The Certificate of Occupancy may not be issued until receipt of the NFA.

Impact on Industry
Due to current NJDEP backlog in site remediation cases, the review time will certainly delay renewal and some businesses will experience disruption in operations.  This new law will have an impact on many businesses and will drive day care center costs up and cause closure of many small centers.

Bio
Daniele Cervino is Senior Vice President and General Counsel of Environmental Waste Management Associates, LLC in Parsippany, NJ, 800-969-3159 ext. 180.