September 2008 ALERT
SPRINGBOARD - Legal Trends & Analysis
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Governor Paterson Signs Legislation Requiring Tenant Notification of Indoor Air Contamination into Law

On September 5, 2008, Governor David Paterson signed legislation amending that Environmental Conservation Law ("ECL") to require notice to residential and commercial tenants and occupants of indoor air contamination. The new law, which passed the State Senate and Assembly on June 24, 2008, is codified in a new section 27-2405 of the ECL.

The new law requires that notice be given to tenants where test results collected pursuant to a consent order or brownfield cleanup agreement with the Department of Environmental Conservation ("DEC") reveal exceedances of the New York State Department of Health ("DOH") or the Occupational Safety and Health Administration ("OSHA") guidelines for indoor air quality. These guidelines establish maximum exposure limits for certain volatile organic compounds (e.g., tetrachloroethylene and trichloroethene) and other chemicals. Currently the DOH guidelines regulate a relatively small number of compounds, while the OSHA guidelines regulate a much broader array of compounds.

The new law requires that within fifteen days of the receipt of test results exceeding relevant guidelines, property owners must provide tenants with a fact sheet from the DOH, which identifies the contaminant of concern, the reportable detection levels for the contaminant, any health risks associated with the contaminant, and a means of obtaining additional information. If any public meetings have been scheduled to discuss the test results, notice of such meetings also must be given to tenants.

In addition to the notice required upon receipt of vapor intrusion-related test results, where a property is subject to engineering control to mitigate indoor air contamination or to ongoing monitoring, the property owner must provide to any prospective tenant fact sheets prior to the signing of lease or other rental agreement. Failure to comply with the new ECL provisions could subject property owners to fines for each violation.

If you have any questions about this law, please feel free to contact Michael Bogin at mbogin@sprlaw.com or Steven Russo and srusso@sprlaw.com

 
DEC Implementation of Brownfield Cleanup Program Eligibility Determination Guidance Found Inconsistent with Brownfield Cleanup Act

On September 12, 2008, the Honorable Walter B. Tolub, Justice for the Supreme Court of New York, New York County, rendered a decision in favor of a property owner who had been denied entry into the Brownfield Cleanup Program ("BCP") based on certain non-statutory economic factors, finding the Department of Environmental Conservation's ("DEC's") reliance on those factors improper. HLP Properties LLC v. New York State Department of Environmental Conservation, Index No. 115969/2007 (Sup. Ct. N.Y. County Sept. 12, 2008). The Court rejected DEC's argument that it was entitled to apply administratively created economic guidance factors to screen sites out of the BCP, citing Court of Appeals authority that agencies cannot legislate by adding guidance requirements not expressly authorized by statute.

Noting that the economic guidance factors had come under assault from multiple entities, including the Environmental Law Section of the New York State Bar Association, the Court held that DEC's reliance on such factors "is erroneous in that it constitutes an impermissible attempt to legislate, and is inconsistent with the Legislature's intent to encourage remediation." In reaching that conclusion, the Court cited a recent upstate decision, which reached the same conclusion, namely, that "only the legislature has authority to contend with the fiscal ramification of a statute." Destiny USA Development v. DEC, 2008 WL 2368085 (Sup. Ct. Onondaga County Jun. 10, 2008).

In addition to its rejection of the DEC's reliance on non-statutory economic guidance factors, the Court further recognized the broad goals of the BCP Act to encourage remediation and reuse of brownfield sites by holding that a prior voluntary agreement to remediate the site at issue did not preclude participation in the BCP. The Court reversed DEC's decision and directed the agency to accept the site into the BCP as the program existed under the 2007 version of the statute.

If you have any questions about this decision, please feel free to contact Jeff Gracer at jgracer@sprlaw.com.
phone: 212-421-2150