On September 5, 2008, New York Governor David Patterson signed New York State Assembly Bill A10952 (N.Y. Envtl. Conserv. Law § 27-2405(2)), which requires property owners to disclose to current and prospective tenants the results of certain environmental sampling on leased property.1 The bill, which goes into effect on December 3, 2008, covers tests performed on not only groundwater and soil, but also indoor air quality. In passing this new legislation, New York has become the first state to require that landlords disclose such information to their tenants.2
Under this new law, property owners must provide tenants and building occupants with a fact sheet and timely notice of any public meetings in the event that environmental testing results exceed guidelines set forth either by the federal Occupational Safety and Health Administration (“OSHA”) or New York Department of Health (“NY Health”) for indoor air quality.3 Property owners are given 15 days in which to provide such notice, and these requirements apply to both residential and commercial properties.
An interesting component of the new law is that it only applies to those test results which have been provided by an “issuer,” which is defined to include: (i) the New York Department of Environmental Conservation (the “NY DEC”), (ii) a municipality under contract with the NY DEC to undertake an environmental restoration project, and (iii) those persons subject to orders issued with respect to New York’s hazardous waste and oil spill cleanup laws.4
For those properties where environmental monitoring is ongoing pursuant to an existing remediation program or where current environmental controls are already in place, landlords must provide additional notice.5 This notice must include fact sheets, a site closure letter and test results (if requested).6 Further, with respect to prospective tenants, Landlords must provide notice of environmental monitoring both prior to lease execution as well as on the first page of any new lease agreement, which notice must be set forth in bold-faced type.7
In terms of the fact sheets that must be provided by a landlord, the new law directs NY Health to prepare generic fact sheets that must include, at a minimum, the following information: (i) the compounds or contaminants of concern, (ii) reportable detection limits established by NY Health or OSHA for indoor air quality, (iii) health risks associated with exposure to such compounds or contaminants, and (iv) a means for obtaining further information on the compound or contaminant.8
The two entities charged with effectuating this new law are the NY DEC’s Division of Environmental Remediation and NY Health’s Bureau of Environmental Disclosure.9 Although these bodies are currently working on implementing a formal policy, these agencies are not planning any administrative regulations under the new law.10 Oftentimes, NY DEC will conduct or approve sampling plans for the affected properties, and upon receiving those samples from NY DEC (or other agencies or private consultants), NY Health will forward those results to the property owners with a reminder that they are required to disclose the results to their tenants under the new law.11
At this time, there are questions as to whether this new law will have a retroactive application. If so, it is uncertain whether landlords would be required to go back through their historic test results and provide notice to their existing tenants based on those prior results.