New York State has passed a new law that requires certain owners of commercial and residential property to notify tenants if the results of soil, groundwater, or soil gas sampling on the property exceed Occupational Health and Safety Administration (“OSHA”) or New York State Department of Health (“DOH”) guidelines for indoor air quality. The law goes into effect on December 3, 2008.

The law requires the DOH to prepare generic fact sheets that identify various contaminants of concern, reportable detection levels established by the DOH or OSHA, health risks associated with exposure, and a means for obtaining additional information. The notice to tenants, which must be provided within 15 days after receipt of the test results, must include the appropriate fact sheet, timely notice of any public meetings required to be held to discuss the tests results, and any agency closure letters. The test results themselves must be provided to tenants upon request.

The law applies to owners that are subject to a cleanup order issued by the New York State Department of Environmental Conservation (“DEC”) pursuant to New York’s hazardous waste and oil spill cleanup laws, as well as owners that are “participants” in the Brownfield Cleanup Program (“BCP”). Applicants that cleanup contaminated sites pursuant to the BCP under a Brownfield Cleanup Agreement with DEC are either “participants” – owners or operators that are responsible for the contamination – or “volunteers” – owners or operators that are not responsible for the contamination, or whose liability for the contamination arises solely from owning or operating a contaminated site after the release of contamination. Volunteers, who are subject to less stringent cleanup requirements under the BCP, are not subject to the new notification requirements.

The law also applies to owners of properties that have engineering controls in place to mitigate indoor air contamination, or are subject to ongoing environmental monitoring under an ongoing remediation program. Owners of these properties must provide notice to prospective tenants prior to the signing of a lease. In addition, the first page of the lease must include the following language in bold face: “NOTIFICATION OF TEST RESULTS The property has been tested for contamination of indoor air: test results and additional information are available upon request.” This subset of owners is likely to be larger than the group of owners that are subject to DEC orders or are participants in the BCP.