By Andrea P. Sumits
The ubiquitous Proposition 65 warning signs posted throughout apartment communities in California may soon become a thing of the past. Under a new draft rule that the Office of Environmental Human Health Assessment, or OEHHA, is in the process of finalizing, safe harbor warnings for residential rental properties soon will be found in
lease agreements rather than on posted signs.
Signs will still be found in enclosed parking facilities, as well as in designated smoking areas; however, under new regulations effective Aug. 30, 2018, the signs will need to have new warning language. Other than warnings for parking garages and smoking areas at residential rental communities, Prop 65 warnings will transition from posted signs to provisions in the lease.
The proposed draft rule for safe harbor warnings for “residential rental” housing was
published on March 2, 2018. Public comment on the draft rule closed on April 16, and
OEHHA submitted the draft rule to the Office of Administrative Law, or OAL. OEHHA is now working to revise the proposed rule to address certain concerns raised by the OAL.
Those properties affected by the rule are any properties subject to Prop 65 (e.g., more than 10 employees) and defined as a “residential rental,” including apartments, and any other rental residential housing, such as condominiums, townhomes, trailers and even singlefamily homes.
The main thrust of the proposed tailored warning rule for residential rentals is that landlords — to qualify for the safe harbor defense as a matter of law — will need to provide Prop 65 warnings naming at least one specific chemical and at least one specific source of exposure to all “known adult occupants” at the time of leasing or renting. The warning must also be provided annually to all known adult occupants in hard copy or electronic form, or in each lease or rental agreement, renewal or amendment.
Thus, it will no longer be a guaranteed defense to simply post generic Prop 65 warning
language in common areas in an apartment community. Landlords and property owners will have to make tricky decisions about which specific chemicals and what sources of exposure to name in their warnings.
OEHHA’s initial statement of reasons lists six examples of chemicals and sources of
exposure that may be found at residential rentals. If a property owner knows that any of
these six examples are applicable at a property, those chemicals and exposures would be a logical choice for use in the Prop 65 warning. However, many property owners will not know if they have any of the OEHHA-listed chemicals or sources of exposure without exerting some effort to ascertain this information. Moreover, there are many properties at which OEHHA’s listed examples do not apply, and property owners will need to provide warnings for exposure to other Prop 65-listed substances.
To further complicate matters for residential rental property owners or managers, regulatory amendments adopted in 2016 changing the general environmental exposure safe harbor warning will become effective as of Aug. 30, 2018. OEHHA had intended to finalize the tailored warning rule for residential rentals before the Aug. 30 compliance deadline.
Due to delays in finalizing the tailored rule for residential rentals, the general requirements for new safe harbor warnings will go into effect before the tailored rule for residential rental safe harbor warnings is finalized. Therefore, property owners need to decide whether to:
(a) Implement new warnings based on the proposed — but not yet final — tailored rule by Aug. 30 in order to ensure compliance, assuming the risk that the rule could yet change the warning language;
(b) Rely on their “old” Prop 65 warnings until the new tailored rule is finalized and assume the risk that someone may sue alleging that the “old” Prop 65 warning language is no longer a sufficiently “clear and reasonable” warning; or
(c) Implement the new general environmental exposure warning by Aug. 30 and then
subsequently implement the new tailored warning when the rule is finalized.
None of these options is ideal for property owners, but the implications of each option
should be carefully considered and one must be chosen. In addition to which chemical(s) and source(s) of exposure to name in the warning, and how to solve the timing gap of the two rules, other difficult questions property owners and
managers should be considering include:
Whether and when to remove the “old” Prop 65 warning signs posted throughout apartment communities.
Do warnings need to be provided in common areas for visitors/guests of occupants?
For current tenants who won’t be renewing or amending their leases for up to a year or longer, should a communication including the new warning language be issued to establish compliance in the interim?
Should leases continue to include the Prop 65 informational brochure (developed years ago by a trade association) as an appendix?
How will landlords/property owners respond to inquiries from tenants about the new warnings?
What burden is on a landlord/property owner to identify “known adult occupants,” if some occupants may not be a party to the actual lease? (This issue was raised as a concern by OAL and OEHHA is now working to address this issue in the rule language before finalizing it.)
If you have not yet planned for compliance with the new regulations by the Aug. 30
deadline, the time to do so is now.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Andrea P. Sumits is a Partner at Environmental General Counsel. She handles a wide range of environmental and health and safety matters including Prop 65. She advises companies in the consumer product, commercial office, retail, residential, industrial, and hospitality sectors on compliance with Proposition 65, and represents clients in Proposition 65 enforcement actions.
510-495-1409 - ASumits@egcounsel.com
ENVIRONMENTAL GENERAL COUNSEL LLP
2120 University Avenue, Berkeley, CA 94704 www.egcounsel.com