HB168 unanimously passed the Ohio Senate after it was reported out the Senate Agriculture and Natural Resources Committee following an amendment vote on May 6. HB168 is a bill that GOPC has championed as a means to encourage brownfields redevelopment through regulatory reform. Prior to the start of the year, HB168 made its way through the Senate Agriculture and Natural Resources Committee, and was unanimously reported out of committee.
Earlier this week, an additional clarification amendment was presented to HB168 regarding the nature of retro-activity of the legislation. This clarification amendment affirms that a purchaser of a property who meets the BFPP requirements may assert the BFPP as an affirmative defense once HB168 takes effect, back to the effective date of the federal law, which is January 11, 2002. The Senate Agriculture and Natural Resources Committee approved this amendment, amending the language into the bill that was passed on the Senate floor.
Since HB168 was passed out of the House prior to the changes made in the Senate, the bill must go back to the House for a concurrence vote. HB168 unanimously passed out of the House at the end of May 2019. After the affirmative concurrence vote in the House, HB168 will make its way to the Governor’s desk for signature.
Brief Recap of HB168:
HB168 incorporates into Ohio law the federal Bona Fide Purchaser Defense (BFPD) established under CERCLA, which provides prospective buyers of contaminated property with an option to establish a defense to environmental liability after completing the All Appropriate Inquires and proper due diligence. While the BFPD exists to protect a buyer from liability under CERLCA, a federal law, it does not extend protection from liability under state laws. Currently, even if a buyer performs “All Appropriate Inquiries” on a property in Ohio, the buyer will receive no legal liability protection under Ohio law. By strengthening protections under the BFPD, buyers will have a greater incentive to revitalize brownfields in Ohio.
The BFPD does not require a full-blown assessment and clean-up of a prospective property, offering a much more cost-effective means to putting brownfields into productive use. By strengthening protections under the BFPD, buyers will have a greater incentive to reutilize brownfields in Ohio. In replicating the BFPD into Ohio law, Ohio would be in line with many other states, such as Indiana and Michigan, which have incorporated the BFPD or BFPD-like legal protection into state law. Michigan’s Baseline Environmental Assessment (BEA) program, similar to the BFPD, averaged 1,032 issuance per year between 1995 and 2015, while Ohio’s current VAP Covenant-not-to-Sue (CNS) averaged 26 per year during that same time period.