October 14, 2019

October 14, 2019

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October 11, 2019

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New Proposition 65 Regulation Intended to Assist Residential Rental Property Owners Offers a Mixed Bag

The California Office of Health Hazard Assessment (OEHHA), the agency charged with carrying out the Safe Drinking Water and Toxics Enforcement Act of 1986 (aka Proposition 65), recently finalized regulations which take effect on July 1, 2019, intended to help owners of residential rental properties (RRP) comply with any warning obligations to their tenants for any exposures to Proposition 65 listed chemicals. See 27 CCR sections 25607.34 and 25607.35. While the new regulations are intended to provide residential rental property owners with certainty and a "safe harbor" as to what they need to do, owners would be prudent to proceed with caution before availing themselves of these provisions.

The California Apartment Association (CAA) previously lobbied OEHHA to adopt streamlined warning provisions for RRP owners as part of OEHHA's overall update to its "Clear and Reasonable Warning" regulations. That update began in 2016 and ultimately took effect on August 30, 2018 (see our previous Legal Alert ). CAA had wanted guidance regulations for its members that would allow them to dispense completely with the need for posting warnings around the apartment rentals and simply allow its members to (i) provide an initial general notice to tenants and "known adult occupants" at the time of entering into the lease or rental agreement, and (ii) thereafter provide those individuals with notice either annually or by inserting the warning into the lease or rental agreement. OEHHA initially appeared receptive to the CAA-backed proposal but withdrew it from the final regulations before they took effect.

NEW WARNING REQUIREMENTS

The new regulations now provide that a warning meeting the requirements specified will be deemed "clear and reasonable" if it is provided to: "each known adult occupant of the property at the time of renting, leasing…etc." and "each year thereafter" in hardcopy or electronic format by any of following means:

  1. A letter addressed to each known adult occupant or to "Tenants and Occupants" where the adult occupants' names are unknown;
  2. An electronic message sent to each email address used to communicate information to the known adult occupants and to other tenants and occupants;
  3. In the lease or rental agreement; however, such notice is only effective as to the adult occupants who signed or are named in the lease or rental agreement; and
  4. In any year after the initial year of rental or leasing, (i) by either the first or second method noted above or (ii) by inserting it in any renewed lease or rental agreement, but again, the warning would only apply to the adult occupants who sign or are named in the renewed lease and only for the year in which the lease or rental agreement is being renewed.

Section 25607.35 sets out the form of the warning, including use of the required warning symbol Warning Symbol, the word WARNING and the requirement to:

  • Name one or more of the exposure sources (e.g. building materials, fireplaces, mini-blinds, pesticides) present on the RRP or within specific rental units;
  • Specifically identify at least one of the Listed Chemicals in each risk category (i.e. carcinogen and/or reproductive toxicant) to which occupants are being exposed; and
  • Identify P65Warnings.ca.gov/apartments as a source for additional information concerning the listed chemical and the exposure.

The new regulation emphasizes that RRP owners must also provide warnings for enclosed parking facilities and designated smoking areas and do so in the manner prescribed in the tailored rule makings adopted for those exposures which took effect last August 2018. See 27 CCR sections 25607.20 and 25607.21 and 25607.28 and 25607.29. In other words, signs will have to be posted in these areas that meet the regulatory requirements.

CONCLUSION

It remains to be seen whether and to what extent the new regulations will afford comfort and protection to RRP owners. They do not address, let alone satisfy, the need for exposure warnings to individuals such as service contractors, mail carriers, tenants' guests and invitees or anyone other than the tenant and known adult occupants. That leaves open the potential for future failure to warn claims brought by private enforcers where RRP owners have elected to provide tenants with warnings but have not posted signs with respect to environmental exposures that others may face. Given that reality, RRP owners would be prudent to consider whether they are doing themselves more harm than good in advising tenants and known adult occupants regarding exposures via the methods OEHHA has now approved without considering the need for similar warnings to be given to others who routinely access their property.

© 2010-2019 Allen Matkins Leck Gamble Mallory & Natsis LLP

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About this Author

John Allen, Allen Matkins Law Firm, Los Angeles, Environmental Law Attorney
Partner

John J. Allen is a partner in the Los Angeles office and a member of the firm's Environmental Practice Group. John has built a diverse environmental private practice which includes advising and representing clients in all key substantive areas of environmental law including regulatory programs for air emissions, wastewater treatment and discharge, hazardous waste management and federal and state environmental cleanup programs involving hazardous substance response. He provides clients with permitting and compliance counseling and also represents them in federal and state...

213-955-5548
Vaneeta Chintamaneni, Allen Matkins Law Firm, San Francisco, Environmental Law Attorney
Associate

Vaneeta Chintamaneni is an associate in the Environmental and Natural Resources Practice Group in San Francisco. She provides guidance and support to corporations and individuals in a broad range of litigation and counseling areas, including contaminated properties, water rights, environmental enforcement actions, and Proposition 65. Vaneeta has experience with a wide variety of state and federal environmental statutes, including the California Environmental Quality Act (CEQA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), the Carpenter-Presley-Tanner Hazardous Substance Account Act, and the Clean Air Act (CAA).

Prior to joining Allen Matkins, Vaneeta was an associate at national and California-based law firms where she provided environmental counseling and compliance assistance, and guided individuals and large corporations in varied litigation. Prior to joining a law firm, Vaneeta served as a Community Development Project Legal Intern where she provided legal assistance to municipalities and underserved communities in the Community Development Project at the Lawyers' Committee for Civil Rights Under Law in Washington, D.C.

Vaneeta speaks conversational Telugu.

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