Governor Signs Tenant Indoor Air Notification Law

A10952-B/S.8624

New York is the first state in the country to enact a law requiring building owners to notify tenants and prospective tenants the results of certain environmental testing.

The law was signed by Governor Patterson on September 4, 2008 and goes into effect December 3, 2008.  It will add a new section 27-2405 to the Environmental Conservation Law and will require property owners “and any owner’s agent” to disclose the results of any testing which exceed federal or state indoor air guidelines.  Failure to disclose may result in fines of up to $500 per violation and $500 per each day in violation.  The law applies to test results conducted on indoor air, “sub-slab” air, ambient air, sub-slab groundwater samples and sub-slab soil samples.

Where the results show a violation, the owner/agent must provide a “fact sheet” and timely notice of any public meetings which will discuss the results to all tenants and occupants within fifteen (15) days of receipt of such results.  Upon request, the owner/agent must furnish the test results and any closure letter.  Generic fact sheets, to be prepared by the NYS Department of Health (“DOH”), are to be provided which identify, at a minimum, the compound or contaminant of concern, reportable detection levels established by DOH or OSHA, health risks associated with exposure to such compound or contaminant and a means to obtain more information on the compound or contaminant.  The requirements apply to both residential and commercial property.

For properties that have an engineering control in place or are subject to ongoing monitoring under an ongoing remediation program, owners/agent must provide additional notice. Such notice must include fact sheets, test results if requested, and site closure letter. Owners/agents must also provide notice to prospective tenants before they sign a binding lease or rental agreement and the following notice must be included in rental or lease agreements in bold on the first page “in at least twelve point font”:  “Notification of Test Results The (sic) Property Has Been Tested for Contamination of Indoor Air:  Test Results and Additional Information Are Available Upon Request.”

The law was sponsored by two legislators from the Binghamton area:  Assemblywoman Donna A. Lupardo (D-Endwell) and Senator Thomas W. Libous (R-Binghamton).  The Binghamton area has seen several vapor instrusion cases.  In such cases, volatile organic compounds (“VOCs”) -- such as  trichloroethylene (“TCE”) – in soil or groundwater produce vapors which seep into building structures.  Vapor intrusion may occur at “legacy sites” – sites that had previously been cleaned up and were thought to be safe.  New York has identified over 400 such “legacy” sites.  The new law is meant to address the concern that renters are unknowingly being exposed to possibly carcinogenic VOCs and will put the onus on property owners to alert them if the tenant’s air quality is found to exceed state or federal standards.The bill was first passed by the legislature in 2006, but was vetoed by Governor Pataki, who found the bill to be “overly broad.  There was also concern from New York City landlords who might potentially have to contact more than 40,000 tenants. 

The bill was passed again in 2007, but vetoed by Governor Spitzer, who supported the intent of the bill but said it was not comprehensive enough and in some instances was too vague.  The bill passed again this year and this time was signed by Governor Patterson.