By: Martha N. Donovan, Scott M. Baach and John A. Jakub

    All New Jersey-licensed child care center operators, as well as those seeking to become licensed operators, will now be subject to additional environmental regulations that were recently adopted by the Department of Children and Families (DCF). The DCF developed these emergency regulations in response to a recent, highly-publicized discovery that a child care center in Gloucester County operated for two years on a site with serious environmental concerns.

    The emergency regulations were published on October 17, 2006. As an initial matter, they require applicants for new child care center licenses and those seeking to renew their licenses to certify that the building housing the child care center was not previously used in a way which poses an environmental concern. The regulations further describe the uses which have been classified by the DCF as those of an “environmental concern” (which include, nail salons, dry cleaners and certain other factory, industrial, “high hazard” and storage categories that are set forth in the Uniform Construction Code).

    If the building is (or was) used in such a fashion, then the applicant must first certify compliance with certain soil guidelines issued by the New Jersey Department of Environmental Protection (DEP). Further, in those circumstances, the applicant must also certify that it has contacted the New Jersey Department of Health and Senior Services (regarding indoor air conditions) and the DEP to determine what further steps may be necessary to assess the risks posed by the prior uses. It will be the responsibility of the applicant to ensure implementation and compliance with all such corrective actions.

    Additional certification and sampling requirements apply to any center that is not served by a public community water system. In addition, existing licensees, as well as new applicants, will be required to certify compliance with existing regulatory requirements for radon, asbestos and lead.

    Effective January 1, 2007, satisfactory indoor air sampling results will be required for any centers that are co-located in the same building or structure with a dry cleaner or nail salon. Further, effective June 1, 2007, applicants for new child care center licenses and those seeking to renew their licenses will be required to submit to the DCF a “No Further Action” letter from the DEP which indicates that no further remediation is needed for the site on which the center is located.

    The requirements set forth in these emergency regulations are far reaching and apply not only to the potential new child care center licensee but also to those licensees which have been operating for a number of years. We suspect that many in the child care center community will be surprised to learn that they may have to address environmental conditions that happened many years ago or for which they have no direct causal responsibility. Environmental sampling and remediation can be lengthy and costly and can, as a practical matter, also result in personal injury lawsuits if problems are located and health conditions arise.

    The new regulations will almost certainly raise particular issues or concerns for owners/lessor of properties upon which child care centers are located. For example, if you are the owner of such a property, will you permit your child care center facility tenant to undertake sampling at the site in order to obtain a “No Further Action” letter from the DEP? What if you only rent a portion of the site to a child care center? Do you only need a “No Further Action” letter for that portion of the site? What should your lease provide to address these regulations? Of course, similar questions arise for the tenant/child care center operator. Why should the tenant seek to obtain a “No Further Action” letter (at potentially great cost) when it should have no legal obligations for any pre-existing contamination? Does the DEP have the staffing available to review reports and issue “No Further Action” letters before June 1, 2007, as required by the emergency regulations, or will child care centers be forced to shut their doors?

    November 2006

    Posted in: John A. Jakub, Martha N. Donovan |