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What Tenants Need to Know about Indoor Air Contamination Associated with Soil Vapor Intrusion

2018 05 11 SVI Tenant Notification Blog Image_rev.jpgIn September 2008, then Governor David A. Paterson signed legislation adding a new section to the Environmental Conservation Law (ECL 27-2405) requiring property owners or owners' agents (such as management companies) to notify tenants of any test results related to indoor air contamination associated with soil vapor intrusion (SVI) that they receive. A caveat: owners only have to disclose those test results received by them from certain parties ("issuers") who are mostly private owners, including municipalities, which were required to generate the test data under a consent order or similar administrative order. The law took effect in December 2008.

What is Soil Vapor Intrusion?

Soil vapor intrusion is the process of hazardous chemicals migrating from contaminated soil and groundwater into the indoor air of buildings through cracks or other gaps in the building's foundation. These chemical vapors can accumulate at levels that could increase the risk of harmful health effects, as measure against indoor air quality guidelines set standards for vapor levels. These guidelines are issued at the state level by the New York State Department of Health ("DOH") and the Occupational Safety and Health Administration ("OSHA") at the federal level.

What does the law say?

Tenants (and other occupants, say, the employees of commercial tenants) must be notified when the results of indoor air tests (required under various types of administrative orders) exceed either a the DOH or OSHA guidelines for indoor air quality. Tenants also must be provided with fact sheets within 15 days of the receipt of excessive SVI test results, or where a property is subject to an engineering control (see our blog post on engineering controls) to mitigate indoor air contamination or is subject to ongoing monitoring. Fact sheets identify one or more of the following:

· the compound(s) or contaminant(s) of concern;

· reportable detection levels for the compound(s) or contaminant(s);

· health risks associated with exposure to the compound(s) or contaminant(s);

· a means of obtaining additional information on the compound(s) or contaminant(s).

The owner or landlord of a building must also tell tenants about any public meetings scheduled to discuss test results.

Test Results/Disclosure Letters: Tenants and occupants have the right to request test results and any regulatory closure letter related to the property from the property owner or the landlord.

Properties Subject to Engineering Controls and Monitoring: Prospective tenants also have a "right to know" under this law, which is to be reflected in the lease, if a property is subject to an engineering control to mitigate indoor air contamination or is subject to ongoing monitoring. In that case the owner or owner's agent must provide fact sheets, prior to the signing of a lease or other rental agreement. Specifically, the first page of the lease or rental agreement must include in at least 12-point bold face font the following language:

"NOTIFICATION OF TEST RESULTS: The property has been tested for contamination of indoor air: test results and additional information are available upon request." Prospective tenants have the same right to request test results and any regulatory closure letter related to the property.

Failure to Comply: If a property owner and/or agent fails to comply with these provisions, they may be fined up to $500 for each violation and $500 per day that they remain in violation.

The DEC's website provides more information.

Call the attorneys of Periconi, LLC at (212) 213-5500 for legal advice if you think a property owner has failed to comply with this law or if you own a property that may be facing soil vapor intrusion issues.

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