On March 2, 2018, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed tailored Proposition 65 safe harbor warning regulations for exposures occurring in residential rental properties. The deadline for comments is April 16, 2018. More information about OEHHA’s proposal may be found here.
OEHHA’s new Proposition 65 safe harbor warnings include a number of “tailored warnings,” i.e., specific warning language and methods of transmission for specific types of exposures. To benefit from the safe harbor afforded by the regulations, businesses causing such exposures must use the tailored warnings, and not the generic safe harbor warnings for the general category of exposure. Thus, for example, a business operating a parking garage must use the specific tailored warning for parking garages, and not the generic safe harbor warning for environmental exposures.
For exposures occurring in residential rental properties, OEHHA is proposing specific tailored warning text and specific methods of transmission as follows:
- In addition to the usual recitation about the chemical(s) being known to the State of California to cause the relevant health endpoint, the warning must identify the specific source of the exposure. The example offered by the agency is “fireplaces and unvented gas space heaters on this property” as a source of exposure to carbon monoxide.
- The warning must advise the tenant “Talk to your landlord or building manager about how and when you could be exposed to these chemicals in your building.”
- The warning must include the URL P65Warnings.ca.gov/apartments.
- The warning must be provided to each known adult occupant at the time of leasing.
- The warning also must be provided annually to the known adult occupants of the property.
The proposed warning text and method of transmission are very different from the currently used safe harbor warning, which evolved following over 100 claims, widely considered predatory in nature – even by the California Court of Appeal – against apartment building owners approximately 15 years ago. Currently, warnings for exposures occurring at rental properties are provided via signage at main entrances and the generic “This area [or building] contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.” Conveniently, this signage addresses exposures not only to tenants but also to visitors. The proposed safe harbor warnings likely would not be considered to address both categories of exposed persons, and thus signage would still be required in order to address exposures to visitors. In addition, the current safe harbor warnings cover all exposures that are occurring on the property. In contrast, the proposed warnings might not be considered to encompass any exposures not specifically described in the text.
The proposal, if finalized in its current form, also will impose new burdens on building owners, landlords and building managers. For one thing, the proposed regulations do not clarify which person must provide the warning: is it the building owner/landlord or the building manager? Building managers would be wise to carefully review their obligations under their management agreements. The proposed warning also will require building owners/landlords/building managers to be prepared to respond to tenant inquiries regarding the exposures being warned for. Even rental agreements may be affected: the proposal may trigger landlords to tighten rental agreements’ provisions about subletting and lease assignments, so as to avoid disputes about who is a “known adult occupant.”
In short, entities in the business of renting residential properties should review this proposal very carefully to understand its requirements and limitations – and should take advantage of this public comment period.
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