New York passed Chapter 521 of the Laws of 2008, signed into law by Governor Paterson on September 4, 2008, effective December 3, 2008 which adds N.Y. Envtl. Conserv. Law (ECL) Section 27-2405 (“Tenant notification of indoor air contamination”).
The requirements of the new law apply only to test results that have been provided to the property owner by an “issuer,” which is defined to include:
(a) The New York State Department of Environmental Conservation (“NYSDEC”);
(b) A municipality that has entered a contract with NYSDEC to undertake an environmental restoration project;
(c) A person subject to an order issued pursuant to New York’s hazardous waste and oil spill clean-up laws; or
(d) A “participant” in New York’s Brownfield Cleanup Program (“BCP”).
The definition of participant under the BCP is an applicant into the program who is liable for contamination as an owner or operator. A “volunteer” under the BCP is an applicant not liable for the contamination as a “bona fide” purchaser (i.e., an owner whose liability arises solely from ownership after the contaminants were released). In addition, the new law would not cover test results gathered during due diligence on a purchase or lease.
See also:
- Duane Morris Alert: New York Law Requires Landlord Disclosure of Environmental Test Results to Tenants
- NYSBA Real Property Law Section Blog: Indoor Air Contamination – Notice to Tenants
N.Y. Envtl. Conserv. Law (ECL)
§ 27-2405. Tenant notification of indoor air contamination.
1. For purposes of this section:
a. “test results” shall include the results of any tests conducted on indoor air, subslab air, ambient air, subslab groundwater samples, and subslab soil samples; and
b. “issuer” means:
(i) a person subject to an order issued pursuant to title thirteen of this article, article twelve of the navigation law, or title twelve-A of article thirteen of the public health law,
(ii) a participant as defined in subdivision 1 of section 27-1405 of this article subject to an agreement entered into pursuant to title fourteen of this article, or
(iii) by a municipality subject to a contract entered into pursuant to title five of article fifty-six of this chapter; or
(iv) by the department.
2. Any owner of real property or any owner’s agent to whom indoor air contamination test results have been provided by an issuer shall, in cases where test results exceed department of health indoor air guidelines or the occupational safety and health administration guidelines for indoor air quality, provide a fact sheet and timely notice of any public meetings required to be held to discuss such results to all tenants and occupants and upon request such test results and any closure letter, within fifteen days of receipt of such results. Generic fact sheets shall be prepared by the department of health and shall identify at a minimum the compound or contaminant of concern, reportable detection levels established by the department of health indoor air guidelines or the occupational safety and health administration guidelines for indoor air quality and health risks associated with exposure to such compound or contaminant and a means to obtain more information on the compound or contaminant.
3. For real property for which an engineering control is in place to mitigate indoor air contamination, or if the real property is subject to ongoing monitoring pursuant to an ongoing remedial program, the owner or
owner’s agent of real property to whom indoor air contamination test results have been provided by an issuer shall provide, or cause to be provided, fact sheets, and upon request any test results, or closure letter received by such owner or owner’s agent to any prospective tenant prior to the signing of a binding lease or rental agreement. Generic fact sheets shall be prepared by the department of health and shall identify at a minimum the compound or contaminant of concern, reportable detection levels established by the department of health indoor air guidelines or the occupational safety and health administration guidelines for indoor air quality and health risks associated with exposure to such compound or contaminant and a means to obtain more information on the compound or contaminant. Such notice shall be included in the rental or lease agreement and shall contain the following in at least twelve point type in bold face on the first page: “NOTIFICATION OF TEST RESULTS The property has been tested for contamination of indoor air: test results and additional information are available upon request.”
