New York Law Requires Landlord Disclosure Of Environmental Test Results To Tenants

Posted on February 17, 2009 by Sharon Kramer

Article by Vincent S. Oleszkiewicz

Tenant Notification of Indoor Air Contamination

New York has passed a law, effective December 3, 2008, which requires property owners and landlords to provide current and prospective tenants the results of environmental sampling conducted on the leased property [N.Y. Envtl. Conserv. Law (ECL) Section 27-2405]. The law requires notification of sampling results conducted on indoor air, as well as sub-slab groundwater and soil, when the test results exceed federal Occupational Safety and Health Administration (“OSHA”) or New York State Department of Health (“NYSDH”) indoor air guidelines. This law is intended to address the issue of vapor intrusion into tenant-occupied commercial and residential property in situations where contaminated soil or groundwater, located beneath a building slab or foundation, releases evaporated organic vapors that may enter and compromise the indoor air quality of any above grade enclosed structure.

New Law Applicability

1. Applicable to “Test Results”

Notification of test results must be provided by the landlord to the tenant. The new law defines “test results” to include not only actual indoor air sampling results, but also sample results from sub-slab air, sub-slab soil and groundwater. If sub-slab soil or groundwater results indicate concentration levels that would create indoor air quality issues, the landlord should consider these results to fall under the new law’s definition of “test results.”

2. Applicable Only to Test Results Provided by an “Issuer”

The requirements of the new law apply only to test results that have been provided to the property owner by an “issuer,” which is defined to include:

(a) The New York State Department of Environmental Conservation (“NYSDEC”);

(b) A municipality that has entered a contract with NYSDEC to undertake an environmental restoration project;

(c) A person subject to an order issued pursuant to New York’s hazardous waste and oil spill clean-up laws; or

(d) A “participant” in New York’s Brownfield Cleanup Program (“BCP”).

The definition of participant under the BCP is an applicant into the program who is liable for contamination as an owner or operator. A “volunteer” under the BCP is an applicant not liable for the contamination as a “bona fide” purchaser (i.e., an owner whose liability arises solely from ownership after the contaminants were released). In addition, the new law would not cover test results gathered during due diligence on a purchase or lease.

3. Applicable Only to Test Results Provided by an Issuer That Exceed OSHA or NYSDH Indoor Air Guidelines

The new law also applies only to test results that exceed NYSDH indoor air guidelines or OSHA guidelines for indoor air quality. In general, the NYSDH guidelines for certain chemicals of concern are more stringent than the OSHA guidelines. Under any circumstances, the indoor air quality test results must exceed either the NYSDH or OSHA guidelines in determining whether the owner or landlord must provide notice of the test results under the new law.

Requirements for Landlord Disclosure of Indoor Air Contamination Test Results

If there is a determination that the test results require tenant notification, property owners must provide “all tenants and occupants” with a fact sheet and notice of any public meetings to be held to discuss the test results. Test results shall be provided if requested by the tenant. Property owners have 15 days from receipt of the test results to provide the required notice. Fact sheets for specific contaminants of concern are being prepared by the NYSDH to identify reportable detection limits, health risks associated with exposure to the contaminant and a means to obtain more information on the contaminant. NYSDH currently has fact sheets prepared only for TCE, PCE and Radon.

In situations where a site has: (a) an engineering control in place to mitigate indoor air quality contamination (e.g., passive vapor barrier; active vapor capture system); or (b) if the site is subject to monitoring under an ongoing remediation program, property owners shall provide the following to prospective tenants prior to signing a lease agreement:

(i) fact sheets regarding the contaminant of concern;
(ii) test results upon request;
(iii) any site closure letter received; and
(iv) notice in the lease agreement.
The notice to prospective tenants to be included in the lease agreement must contain the following language in at least 12-point, boldface type on the first page:

“NOTIFICATION OF TEST RESULTS. The Property Has Been Tested For Contamination Of Indoor Air; Test Results And Additional Information Are Available Upon Request.”

Penalties

While the law is silent on the issue of penalties, a property owner who violates the disclosure requirements could face general criminal or civil penalties under New York statutes ECL §§71-4001 and 4003, which provide for imprisonment, injunctive relief and $500 per violation and $500 per day for each day the violation continues.

Uncertainty Regarding the New Law

Does it apply retroactively? If the law applies retroactively, then there would be a requirement placed upon landlords to research and review whether a site has historic indoor air quality test results and whether those test results (if they exceed applicable NYSDH or OSHA guidelines) must be reported to current tenants and building occupants. Theoretically, there would be no limit on a search back in time for potential test results.

The law requires notification of test results to “all tenants and occupants.” There is likely to be uncertainty as to who the “occupants” are that the law refers to as requiring notification. Would “occupants” be considered customers who enter an establishment? Would employees working in a retail setting be considered “occupants”? Further clarification of this issue should be sought through pronouncements from NYSDEC.

The definition of “test results” not only includes tests performed on indoor air, but also tests performed on sub-slab air, ambient air, sub-slab groundwater and sub-slab soil samples. If an owner has only sub-slab soil or sub-slab groundwater results, how is the determination made that indoor air quality exceedances exist requiring disclosure under the new law?

Conclusion

Owners/landlords are required to provide tenant notification of test results from sites in New York that qualify under the terms of the new law. The first step in this process is likely to be to gather available environmental sampling information from owned sites in New York and evaluate that information to determine if disclosure is required. In addition, for future or pending leases in New York, appropriate notice should be provided to prospective tenants, including written notice on the first page of the lease as required by the new law. Tenants in New York may want to evaluate any notice received from the landlord regarding environmental test results, determine whether indoor air quality has been compromised and take steps to potentially mitigate vapor intrusion effects. Ongoing review of pronouncements or amendments regarding the new law by NYSDEC is necessary for clarification of certain ambiguities that may exist in the new law.

mondaq.com

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10th Annual CAAWS Mystic Krewe of Mutts Mardi Gras Dog Parade – Baton Rouge, Louisiana

Posted on February 17, 2009 by Sharon Kramer

mystic-krewe-of-mutts-parade-4mystic-krewe-of-mutts-parade-63mystic-krewe-of-mutts-parade-3krewe-of-muttskrewe-of-mutts3mystic-krewe-of-mutts-parade-52krewe-of-mutts-1krewe-of-mutts-2mystic-krewe-of-mutts-parade-1krewe-of-mutts-4

caaws.org/Parade

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Sealed homes open possibility of illness

Posted on February 17, 2009 by Sharon Kramer

By Jeffrey Sheban

THE COLUMBUS DISPATCH

Homeowners seeking refuge from high winter heating bills might be opening the door to unwanted guests. 

Experts say that dangerous pollutants can build up and linger in homes that have been sealed too tightly against the elements, especially during the cold-weather months.

Indoor air can contain two to five times the level of toxins found in outdoor air, according to the U.S. Environmental Protection Agency. Common contaminants found inside homes include dust mites, pet dander, tobacco smoke, mold spores and household chemicals.

“Indoor air quality ranks among the top five environmental risks that Americans face,” said Tom Kelly, director of the EPA’s indoor environments division. “And once pollutants get inside, they tend to concentrate.”

Columbus allergist and immunologist Dr. Roger A. Friedman sees examples of it every day.

“We know we’re seeing more allergy and asthma problems, and one of the reasons is the fact that homes have been sealed very tightly,” said Friedman, a clinical professor at Nationwide Children’s Hospital.

Although everyone is affected to some degree by indoor air pollution, children 6 and younger are most at risk because of their lung size, state of development and amount of time they spend at home, he said.

Growing numbers are falling victim to asthma, characterized by intermittent coughing, wheezing and shortness of breath. It’s the leading cause of school absenteeism, accounting for more than 14 million missed days a year, according to the Asthma and Allergy Foundation of America.

For the Ahlers family of Lancaster, the statistics really hit home.

Matt and Mendy Ahlers go to great lengths to keep their indoor air healthy, but three of their four children have severe asthma.

Mendy Ahlers is a stay-at-home mom and self-described “clean freak,” though she doesn’t claim to be perfect (the family has four dogs).

To control dust mites, she encases the family’s mattresses and box springs in washable covers and launders curtains once a month. Matt, a firefighter, can’t bring home smoky or sooty uniforms.

They have a room air purifier downstairs and have removed the upstairs carpeting. And Mendy makes sure her children — ages 6 to 10 — get outside for at least 20 minutes daily for fresh air.

Still, every two weeks, she delivers the kids to Friedman for allergy shots and other treatments.

“I think if I could open my windows every day and freeze, they would be a little healthier,” she said. “But no matter how much I clean or no matter what I do, we’re always going to have some problems in the home.”

The EPA’s Kelly urged homeowners to strike a balance between the potentially conflicting interests of sealing out the cold and maintaining good indoor air quality.

“People have got to live,” he said, “so we urge common sense.”

He cited three keys to safe indoor air.

• Source control. Don’t bring anything in that will cause a health hazard, including cigarette smoke, pets with dander, cleansers with ammonia, paints with volatile organic compounds or dry-cleaned clothes still under plastic.

“If you can smell it, it’s probably not good for you,” he said.

• Ventilation. Vent exhaust fans, dryers and stoves outdoors. Keeping a window or two cracked and making sure outside doors are opened and closed several times a day can make a big difference.

• Air cleaners. While single-room air cleaners are “generally not very helpful,” Kelly said centrally housed filters and cleaners that work with a furnace can remove dust, pollen, mold spores and other pollutants.

The average American home contains 63 hazardous products, including cleaners, paint, drain openers, bug spray and room deodorizers, said Linda Chipperfield, vice president of marketing for Green Seal Inc. (www.green seal.org), a Washington-based nonprofit that certifies eco-friendly products and services.

“So much has to do with what you bring into the home,” she said. “What are you painting with? What are you cleaning with?”

Unfortunately, it can be hard to tell.

She said manufacturers aren’t required to list all chemicals or ingredients on a product’s label. But if a product contains a substance determined to be toxic by state or federal regulators, it must carry a warning label.

While Green Seal doesn’t identify potentially harmful products by brand name, Chipperfield said consumers should avoid household cleansers with chlorine, ammonia or benzene; air fresheners with dichlorobenzene; and paints with formaldehyde, phenol mercury, kerosene and toluene.

Generally speaking, Green Seal-recommended paints are low-odor and low-VOC, she said. Most manufacturers have such products in addition to their regular paints.

The goal, experts say, is to keep the air fresh and circulating and the house free of germs and allergens without using harmful chemicals.

“Do you really need to spray your house with some kind of perfume, or is it OK to have it smell like nothing?” Chipperfield asked.

She chooses nothing, but sometimes leaves out a bowl of lemons for natural fragrance or sprinkles allspice and cinnamon in a pan with water and heats it on the stove.

“What you can really control on a day-to-day basis are the things you purchase and use in your house.”

Assessing indoor air can be difficult because consumers have few places to turn for free or unbiased advice. Home inspections can be expensive, and private contractors often have a financial interest in selling air-cleaning products or remediation services for radon, mold or asbestos.

“There is no simple, inexpensive way to determine your indoor air quality, and there is no single machine to set up,” Kelly said.

“So you need to look for symptoms. If you’re feeling fine when you’re outside, and then inside your house your nose is all stuffed up, that’s a sign of potential trouble,” he said.

Free advice is available from the Ohio Department of Health’s Bureau of Environmental Health, 614-466-1390, which fields calls about indoor air.

dispatch.com

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Good News – Ca Appellate Decision – Mold Env. Hazard (unpublished)

Posted on February 14, 2009 by Sharon Kramer

Ca Appellate Decision – Mold Env. Hazard (unpublished) – pdf

Posted in Civil Justice, Environmental Health Threats, Mold Litigation, Toxic Mold | Tagged , , , , , , , , , , | Leave a comment

Power at play – DC Mardi Gras party – les bons temps roll over ethics questions

Posted on February 13, 2009 by Sharon Kramer

Jan 29, 2009

WASHINGTON – The revelry of Washington Mardi Gras begins tonight at the Washington Hilton.

Physically, the Hilton is at the intersection of Connecticut and Florida avenues. Metaphysically, the Washington Mardi Gras is at the crossroads of what people like about Louisiana and what they don’t like about Washington, a long weekend bacchanal that unfolds in the twilight glow of good times and ethical questions.

For three days and nights, Washington lawmakers and lobbyists and Louisiana movers and shakers make merry – at a Thursday night party “free” to those fortunate enough to score a coveted wristband, at a $150-per-person Friday night dinner dance and at a $200-a-head Mystick Krewe of Louisianians Ball.

The Mystick Krewe, the governing authority of Washington Mardi Gras, decides who can buy tickets to the dinner and ball. Another group, Louisiana Alive!, run by Wayne Smith, a Washington lobbyist and former chief of staff to Louisiana Sen. John Breaux, distributes the wristbands to corporate sponsors, krewe members and congressional staff.

In a new age of ethical transparency, Mystick Krewe and Washington Alive!, both private organizations, are opaque. The Mystick Krewe was created by Sen. Russell Long in the 1950s to take over responsibility for Washington Mardi Gras. Its membership includes all the members of the Louisiana congressional delegation, who take turns chairing the annual event. This year the honor belongs to Rep. Rodney Alexander, R-Quitman.

For Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, Washington Mardi Gras is Exhibit A of how ineffectual even tightened congressional ethics rules have proved to be. Especially problematic, she said, is tonight’s event. No one buys a ticket and yet they all enjoy a lavish party paid for with corporate money. The purpose, aside from having fun, according to Sloan, is to gain access and influence with members of Congress and especially their staffs.

That it is a Louisiana event is hardly surprising, she said.

“Louisiana is known for a little more relaxed idea of ethics,” Sloan said. “It’s definitely a party place.”

Even with Edwin Edward in prison and Bobby Jindal in the Governor’s Mansion, Louisiana seems disinclined to surrender that reputation. .

continued – citizens for ethics.org

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