New York Times, August 19, 2006


By Tina Kelley

Five days a week for two years, parents in this rural township in southern New Jersey would drop off their children, some as young as 8 months old, at Kiddie Kollege, a day care center where these days wilted pansies go unattended outside the locked front door.

But what the parents did not know was that the unattractive one-story building, about 30 miles south of Philadelphia, was the site of a former mercury thermometer factory and that their children, who spent up to 10 hours a day there, were being exposed to what the State Department of Environmental Protection described last month as unacceptably high levels of mercury.A third of the 60 children tested have shown abnormally high levels of mercury in their systems. And while experts have said the levels of mercury found in urine specimens are not high enough to indicate health problems, they are high enough to require long-term monitoring, and the ultimate health implications for the children may not be known for years.

But what is clear, and what is now the subject of an investigation by the state attorney general, is that the responsibility for cleaning up and regulating the building slipped like quicksilver through the fingers of state agencies, local officials and the building's owner, who in February 2004 allowed Kiddie Kollege to open.

"I've had a lot of sleepless nights, and my wife cries on a daily basis," said Sean McCleery, whose two children, Autumn, 6, and Tristan, 3, tested above normal and must continue to be monitored. "You think you're doing the best you can to protect your children, and it ends up in a heartbreaking situation."

So while health experts are minimizing the long-term effects of the contamination, that is little comfort to parents and the owner of Kiddie Kollege, who closed the center on July 28, the day the state determined that the building was not fit for occupancy.

For now, the state attorney general's office is investigating who was responsible for allowing a building to open despite mercury vapor levels at least 27 times the regulatory limit. Mercury, a naturally occurring element, is toxic if inhaled or ingested. Symptoms of mercury poisoning in children include insomnia, irritability, rashes and peeling of hands and skin. Mercury vapors are heavier than air and therefore more prevalent near the floor, where children nap and play.

A timeline released by the state's Department of Environmental Protection describes how a series of missed opportunities and incomplete communications over the past 12 years put children at risk.

Christopher M. Manganello, a lawyer in Pitman, N.J., who is representing more than a dozen families, said: "As a pilot, you need a chain of errors, not just one error, to cause a crash. If any one error had not been made, this whole tragedy would not have occurred. The ball got dropped."

The first missed step came on Jan. 1, 1994, when Accutherm Inc. of Williamsburg, Va., which made thermometers in the one-story building here, closed after 10 years in business. Under state environmental law, a company is required to clean up any spills or toxic materials left behind, even if it files for Chapter 11 bankruptcy protection, as the company did in March 1994.

But Accutherm did not comply with the department's directive to clean all the discharges of mercury and other toxic material at the site.

Bill Wolfe, the head of an environmental watchdog group and a former policy adviser at the environmental agency, said the state should have put a lien on the property and erected signs and fences around it to notify neighbors about the possible hazards. The New Jersey Spill Compensation and Control Act allows for the department to clean up hazards left behind, then to charge the polluter three times the cost.

"That's where the breakdown initially occurred," Mr. Wolfe said. "Had that been addressed appropriately by D.E.P., all the other stuff would not have occurred."

Lisa P. Jackson, the commissioner of the environmental department, conceded in an interview this week that the agency needed better tracking of contaminated sites, clearer cleanup priorities and stronger enforcement efforts. "This is an example when all three of those kind of collide in a bad way," she said. "It crystallizes some of the things we need to do differently."

But she said other people involved in the case needed to do similar soul-searching. "I won't run from the fact that D.E.P. played a role in this, but lots of other people did too," she said. "And lots of people are running to point fingers who need to be looked at really closely."

The building remained vacant until 2001, when a local realtor, Jim Sullivan Jr., bought it for back taxes and began renovations. Mr. Sullivan's lawyer, Richard M. Hluchan, said his client knew that the building had once housed a thermometer factory, but thought it could be developed because a 1996 report issued by the federal Environmental Protection Agency said the site did not belong on the Superfund list and was not eligible for a federal cleanup because it "does not present an immediate threat to human health or the environment."

In fact, only the state can issue a letter saying that cleanup standards have been met. The federal determination simply meant that hazards from the site were not reaching other properties.

But Mr. Hluchan said Mr. Sullivan also felt reassured because the state environmental department never responded to a letter from Mr. Sullivan's son addressed "To Whom it May Concern" requesting information about any problems at the site.

Then in September 2003, a township construction official told the state environmental department that the owner wanted to convert the site to a day care center.

"N.J.D.E.P. informed the construction official that it was not recommended to convert the site at that time," according to the department's timeline, because it had not been certified as cleaned and ready for development.

But the mayor of Franklin Township, Dave Ferrucci, said his staff had no memory of any such phone conversation, and had erroneously relied on the federal report. In October 2003, Mr. Hluchan said, Mr. Sullivan was considering selling the property and again asked the state environmental department for public records about the site. But he said Mr. Sullivan received only the 1996 report, which did not accurately reflect the problems at the site.

Mr. Sullivan decided not to sell the property, and after the township granted permits for renovations, a zoning permit and a certificate of occupancy, he leased the building to Kiddie Kollege, which opened in 2004.

"We weren't told anything, we had no idea," said Linda Turner, who was a receptionist at the day care center and whose pregnant daughter, Becky Baughman, owns the business. "I would not have even started to work there and I'm sure she wouldn't put her child in there," Ms. Turner said.

Then, in 2005, the property was removed from the state environmental agency's booklet of known contaminated sites along with about 1,800 other sites that were considered low priority because, as Commissioner Jackson said, it was believed to be empty.

Still, as for allowing a day care center on the site, she said, "The one decision that made this into a screaming emergency is not one we made."

On April 11 this year, while inspecting low-priority sites, the department discovered that the child care center was operating in the building.

Two weeks later, the state environmental department said it contacted Mr. Sullivan to see if the site had been decontaminated, and according to the timeline, he said the state had indicated there were no problems there. But he was again referring to the 1996 federal report.

On July 28, tests that the state environmental department required showed elevated levels of mercury vapor, and droplets of mercury were later found in the basement and between the floor joists.

Some have questioned why the state did not close the day care center as soon as the environmental agency discovered that mercury was present, since officials knew that there was no letter certifying it clean and ready for development. But Elaine Makatura, a spokeswoman for the department, said that at that time it did not have test results to confirm that the building was unsafe.

"In hindsight, in April, we could have shut it down regardless of home rule, regardless of anything," Ms. Makatura said.

Despite her department's failure to provide complete information about hazards at the property, Ms. Jackson criticized local officials for missing her agency's warning against allowing the day care site, and spoke harshly of Mr. Sullivan.

"For the owner to have hired an attorney and basically say at this point, 'Well, I sent an undated letter with no address and I figured it was clean and consider that a level of diligence,' I don't know how he sleeps at night," she said.

The state's Division of Youth and Family Services, which licenses day care centers, has also been criticized for not discovering the site on the environmental department's public list of contaminated areas. But Kate Bernyk, a spokeswoman, said the division was not required to check that list, and is required to ensure only that day care centers are free of lead, asbestos and radon gas, not mercury.

"We are already working with the Department of Environmental Protection on how the two departments, along with other state and local officials, can best share information to strengthen that safety net," she said.

Gov. Jon S. Corzine has formed a team of cabinet members from the Departments of Health, Community Affairs, Labor, Environment, and Children and Families, to discuss ways to prevent similar chains of errors from endangering the public.

Robert Jenkins, 44, a diesel mechanic who lives across the highway from the center, had considered sending his children there, but he said that in the end he did not want them crossing the busy street.

"I fault the state and the township too," Mr. Jenkins said. "The bad thing about it is children are going to suffer. In the township, everybody starts finger-pointing, but the children are going to suffer."

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