New state law requires landlords to provide information about indoor air contamination

Beginning on December 3, New York landlords, both commercial and residential, may be obligated to provide tenants and occupants with information about indoor air contaminants under a new law, Environmental Conservation Law Section 27-2405. Because of the technical nature of this law, a landlord must carefully examine numerous facts to determine if they are subject to this law. Notification obligations arising under this new law only apply to test results that have been provided to the landlord by an "issuer." The new law defines an "issuer" as any one of the following: (i) person subject to a consent order under the Navigation Law or Title 12A of Article 13 of the Public Health Law, (ii) a participant in the Brownfield Cleanup Program, (iii) a municipality subject to a contract entered into pursuant to Title 5 of Article 56 of the Environmental Conservation Law, or (iv) the Department of Environmental Conservation. If the test results have not been provided by any of these "issuers," then there is no reporting obligation under the terms of this new law. Assuming that a landlord has been provided test results for indoor air by an "issuer," the landlord must then determine if the results of those tests exceed the Department of Health indoor air guidelines or the Occupational Safety and Health Administration (OSHA) guidelines for indoor air quality. If these guidelines are exceeded, then a landlord has an obligation to provide existing tenants and occupants with a fact sheet prepared by the Department of Health. This fact sheet must identify, at a minimum, the compound or contaminant of concern, the reportable detection levels established by the Department of Health or OSHA and the health risks associated with exposure to that contaminant, as well as means to obtain more information on the contaminant. The new law requires the provision of fact sheets to tenants and occupants. The law does not define the term occupant, but, by including the obligation to provide information to both tenants and occupants, the legislature may be trying to foreclose a landlord's ability to simply notify the legal tenant, whose name is on the lease, without informing other individuals who are being exposed to indoor air contaminants. However, this does not mean that landlords must stand at the door of their building, handing out fact sheets to everyone that enters. The legal definition of the term occupant, which has been applied broadly by the courts in numerous contexts suggests that occupant is not merely those who enter the building, but those individuals who exercise some dominion over the premises. In addition to requiring fact sheets to be provided to tenants and occupants of premises that have indoor air levels exceeding the Department of Health of OSHA guidelines, this new legislation imposes additional requirements on landlords that have engineering controls in place to mitigate indoor air contamination or real property that is subject to ongoing monitoring pursuant to ongoing remedial programs. In those cases, landlords must provide prospective tenants with fact sheets prepared by the Department of Health prior to the signing of a binding lease or rental agreement. Additionally, landlords with engineering controls or ongoing monitoring pursuant to remedial programs must place the following language in at least 12 point typed in boldface on the first page of any lease agreement: "Notification of Test Results - the property has been tested for contamination of indoor air: test results and additional information available upon request." It is important to note that, in addition to the requirements of this new law, owners of real property should be mindful of potential common law obligations to disclose indoor air contamination to their tenants and occupants. This law does not preempt a landlord's existing obligations to safeguard the health of his tenants and, even if test results have not been obtained from an issuer, landlords should carefully consider and implement methods to protect their tenants. James Rigano is a partner and Kevin Walsh is an associate in the Environmental Law Practice Group at Certilman, Balin, Adler & Hyman, LLP, Hauppauge, N.Y.