Mercury at day care prompts bill to allow prosecutions

More than two years after state officials shut down a day-care center operating inside a former thermometer factory, a state senator yesterday introduced a bill to allow prosecution of anyone who intentionally or recklessly causes others to be exposed to health-threatening pollutants.

Sen. Fred H. Madden Jr. (D., Gloucester) said the attorney general told him the investigation into who is responsible in the Franklin Township case has not - to this point - yielded evidence to "support a conviction under existing statutes."

In July 2006, the state Department of Environmental Protection ordered Kiddie Kollege closed after an inspector noticed the day care had opened inside the former Accutherm factory, which was never cleaned up.

More than 60 children were tested for exposure to mercury, which can cause neurological and kidney problems. Scientists later reported the building contained mercury vapors that were 27 times the acceptable limit.

Though many children initially had elevated mercury levels in their urine, the children were retested and in several months had clean results.

Health officials concluded the exposure was not likely to cause long-term harm.

Hearings were held, and during the uproar the state attorney general's office announced it would investigate to see whether anyone was responsible for the children's exposure. Some parents had filed lawsuits against Jim Sullivan Inc., the Franklin Township real estate broker who acquired the building through a tax foreclosure and then rented it to day-care operators. The parents also named the day care, Accutherm; the DEP; and the township.

Jim Sullivan Jr., a principal, has said he was not aware the building was not cleaned up when the title was transferred. He blames the DEP and the township for failing to properly notify him the building was contaminated.

The DEP and the town dispute his statements. The DEP had ordered Accutherm owner Philip Giuliano to remove the pollutants, but he had declared bankruptcy and moved to Virginia.

A state grand jury heard testimony in August 2006, but the attorney general will not comment on the outcome or the status of the probe.

Peter Aseltine, spokesman for the attorney general, would only say: "The current provisions in the criminal code are not adequate to address situations such as Kiddie Kollege. We requested legislation be introduced to make it easier to prosecute individuals who knowingly or recklessly expose others to toxic pollutants."

Under Madden's bill, anyone who causes toxic exposure would face up to 10 years in prison and up to $150,000 in prison if convicted. Pollutants are defined as substances that cause "death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction." It excludes prosecution when a person is exposed to a "minimal amount of toxic pollutant" which carries no medical harm.

In June, a similar bill was introduced in the state Assembly by Paul Moriarty and Sandra Love. That bill is in committee.