This week, the Senate Agriculture and Natural Resources Committee unanimously voted HB168, the Bona Fide Purchaser Defense (BFPD) legislation, out of committee. HB168 will now head to the Senate Floor for a vote. As noted in our November 19th blogpost, HB168 was amended to include language regarding the Voluntary Action Program and the Covenant Not to Sue. This amendment did not impact the proposed language for the BFPD.

 Once passed in the Senate, HB168 will need to go back to the House Floor for a concurrence vote, as the version passed by the House was amended in the Senate. GOPC is cautiously optimistic that HB168 may reach the Governor’s desk before the end of the year, as there are limited session days left in the Senate and House prior to the holiday recess. GOPC will continue to provide updates as HB168 moves through the legislature.

 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 reutilize 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 issuances 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.