New tenant notice requirement for indoor air contamination

A New York State law went into effect in December, 2008 requiring notice to tenants at properties where indoor air contamination has been detected. (New York State Environmental Conservation Law, Section 27-2405). The requirements apply to indoor air results where the New York State Department of Environmental Conservation (DEC) is involved in an investigation or cleanup. The law has two requirements. Under the first requirement, if indoor air test results show an exceedence of the New York State Department of Health (DOH) indoor air guidelines or the Occupational Safety and Health Administration (OSHA) indoor air standards, the building owner is required to provide tenants with a fact sheet prepared by DOH regarding the contaminants. The DOH has issued fact sheets for a few chemicals. Additionally, any other test results requested by the tenant must be provided. The DOH guidelines only cover a few chemicals, whereas the OSHA indoor air standards address numerous chemicals. However, OSHA has substantially higher values compared to the DOH. Do exceedences of the guidelines or standards prior to the effective date of the law, early December, 2008, trigger the notice requirement? The law does not state that it has retroactive applicability and therefore should only be applicable to test results issued after early December, 2008. The second requirement under the law is applicable to new tenants. If the property has a control in place to mitigate indoor air contamination or is subject to ongoing indoor air monitoring, the owner is required to provide fact sheets to a prospective tenant, and on request, any other test results. The fact sheets must be part of the lease, and the lease must have specific language on the first page stating, in bold print: The property has been tested for contamination of indoor air. Tests results and additional information are available upon request. Violation of the law can result in penalties under the Environmental Conservation Law. Landlords should also be concerned about tenant allegations regarding failure to notify under the law. James Rigano is a partner at Certilman Balin Adler & Hyman, LLP, Hauppauge, N.Y.