New Prop 65 Safe Harbor Warnings for Residential Rental Properties set to go into effect this summer

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By William M. Sloan, Tyler G. Welti, and Gregory S. Berlin  

On March 21, 2019, the Office of Environmental Health Hazard Assessment (OEHHA) adopted amendments to California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (known as Proposition 65 or Prop 65) that add sections on safe harbor warnings for exposures to listed chemicals at residential rental properties. The purpose of the new regulations is to provide more specificity regarding the content of safe harbor warnings for exposures to listed chemicals that may occur at residential rental properties, and the corresponding methods for providing warnings for those exposures. The new regulations become effective on July 1, 2019.
Prop 65 Background
Under Prop 65 and the implementing regulations, businesses with 10 or more employees must provide “clear and reasonable” warnings to Californians before exposing them to a chemical listed by OEHHA as a carcinogen or reproductive toxicant (more than 900 chemicals are now on the list). The regulations establish criteria for what OEHHA considers to be a “clear and reasonable” warning, including specific language that, if used, is deemed compliant with the regulations (known as “safe harbor” warning language). Compliance with safe harbor warnings enables businesses to avoid litigation concerning the sufficiency of their warnings.
In 2016, OEHAA adopted new Prop 65 safe harbor warning regulations that became effective on August 30, 2018. The new regulations include generic safe harbor warning language, as well as safe harbor warnings for specific businesses, such as hotels, restaurants, and dentists. The California Apartment Association requested that OEHHA include in the new regulations a “tailored warning” for exposures to chemicals that may occur at apartments. However, OEHHA did not include a tailored warning in the rulemaking at that time but agreed to consider the possibility of a future rulemaking for residential rental properties.

OEHHA Adopts Safe Harbor Warnings for Residential Rental Properties
Over the years, the apartment industry has been the subject of numerous 60-day notice of violation letters. The industry has also long expressed concern about what a clear and reasonable warning would entail for the types of exposures they expect to encounter within their business operations. Given these concerns, in 2016, the apartment industry asked OEHHA to clarify the acceptable warning method and content to use to comply with Prop 65 warning requirements and requested that OEHHA adopt a specifically tailored warning regulation for the industry.
In response to these concerns, on February 23, 2018, OEHHA proposed new tailored safe harbor warnings for residential rental properties. OEHHA concluded that tailored warnings for residential rental properties were necessary to reduce the number of vague or over-inclusive warnings being given for exposures that may or may not occur at rental properties at a level that requires a warning. In addition, OEHHA concluded the regulations were necessary to make warnings clearer and more informative for the public, and to provide certainty for landlords that must comply with Prop 65 warning requirements.
OEHHA subsequently received three comment letters in response to its proposed rulemaking from the California Apartment Association, the California Association of Realtors, and one individual. OEHHA then modified the proposed regulation to increase clarity and again invited public comments. OEHHA made no further changes to the proposed regulation and adopted the amendments on March 21, 2019.
Methods for Transmitting Warnings
The new regulation applies to “residential rental properties,” which are defined to include “an apartment, house, duplex, triplex, condominium or other dwellings that a landlord rents to a tenant to live in, including common areas.” See 27 C.C.R. § 25607.34(a). It does not apply to “hotels,” which are covered under 27 C.C.R. §§ 25607.32, 25607.33.
The regulation requires warnings to be provided to each known adult occupant of the rental property at the time of renting, leasing, or “hiring out” the property. Warnings may be transmitted in hardcopy or electronic format by any of the following means: (1) delivering a letter to each known adult tenant; (2) sending an electronic message to each known adult tenant’s email address; or (3) including the warning in a lease or rental agreement. The warning must be renewed each year by one of these same methods.
If the lease, rental agreement, renewal, or any other disclosures or required notices from the landlord to the tenant are provided to the tenant in any language other than English, the warning must also be provided in those languages. For instance, many cities in California have standard notices prepared by the municipality that must be distributed by landlords or posted on residential rental properties that explain tenant rights under local ordinances. Many cities require that these notices are displayed in various languages, and, therefore, any Prop 65 warning would have to be displayed in that language as well.
Content of Warnings
The new regulation also requires the warnings to have certain content, including: (1) a warning symbol consisting of a triangle with an exclamation point; (2) the name of at least one chemical that is a carcinogen and/or reproductive toxicant that is present at the property; and (3) the URL for the new OEHHA Prop 65 warning website. Below is an example of the full warning statement for exposures to both listed carcinogens and reproductive toxicants:
WARNING: {Name of one or more exposure source(s)} on this property can expose you to chemicals including {name of one or more chemicals} which is {are} known to the State of California to cause cancer and {name of one or more chemicals} which is {are} known to the State of California to cause birth defects or other reproductive harm. Talk to you a landlord or the building owner about how and when you could be exposed to these chemicals in your building. For additional information go to www.P65Warnings.ca.gov.
There are also modifications to the language for properties that contain either a carcinogen or a reproductive toxicant (but not both), and for properties that contain chemicals listed as both a carcinogen and a reproductive toxicant.
Potential Chemicals of Concern in Residential Rental Properties
Exposures to listed chemicals at residential rental properties can occur because of the installation, presence, maintenance, or age of certain building materials, components, or fixtures, and activities of residents and their guests (such as smoking tobacco or cannabis or driving motor vehicles). Of course, exposure scenarios will vary among rental properties. Each property, area of the property, and even unit may have unique features and chemicals that could result in exposures that trigger Prop 65’s warning requirements.
Examples of Prop 65-listed chemicals that tenants may be exposed to include:
• Formaldehyde in some building materials, including some insulation, composite-wood cabinetry, and wall and flooring materials;
• Carbon monoxide from any fireplaces or unvented gas space heaters;
• Lead from imported pre-1997 vinyl mini-blinds, or plumbing materials or paint chips in older buildings;
• Crystalline silica in certain paints and painted surfaces;
• Asbestos in ceiling materials, if disturbed, in older buildings; and
• Some pesticides that are on the Prop 65 list, for indoor or outdoor use.
Other chemical exposures that can occur at apartments or other residential rental properties include (1) carbon monoxide and motor vehicle exhaust in enclosed parking structures; and (2) tobacco smoke and nicotine in designated smoking areas.
In addition, construction materials used in walls, floors, ceilings, and outside cladding contain chemicals, such as formaldehyde resin, asbestos, arsenic, cadmium, and creosote, which are released as gases or vapors during normal degradation or deterioration, and as dust or particulate when disturbed during repairs, maintenance, or renovation, all of which can lead to exposures.
Should You Display a Safe Harbor Warning?
Landlords are not required to use OEHHA’s safe harbor warnings. However, declining to do so poses a risk of enforcement action, and landlords will need to defend their warnings as being “clear and reasonable.” Landlords that fail to provide adequate warnings are subject to penalties as high as $2,500 per violation per day.

Venable San Francisco-based Environmental partner Bill Sloan, who advises clients in the development, water resources, air quality, climate change, energy, and endangered species issues.

Venable San Francisco-based counsel Tyler G. Welti is a former trial attorney with the U.S. Department of Justice’s Environment & Natural Resources Division, and has been active in handling project development issues involving a federal nexus, including transportation projects, renewable and conventional energy developments, timber harvests, and other infrastructure and natural resource development projects.

Gregory Berlin is an associate in Venable’s Environmental practice.

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