The Ohio House of Representatives recently passed a bill (H.B. 168) that provides “bona fide prospective purchasers” (BFPPs) of brownfield properties with an affirmative defense against state lawsuits seeking to impose liability for the cleanup of such properties. To qualify for the liability protection as a BFPP under H.B. 168, a landowner must satisfy the criteria for a similar defense provided under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, a BFPP must perform “all appropriate inquiries” (see 40 CFR § 312.20) prior to acquiring the property, and demonstrate “no affiliation” with a liable party. CERCLA also requires the BFPP to satisfy certain obligations after acquiring the property including:
• Compliance with land use restrictions and not impeding the effectiveness or integrity of institutional controls;
• Taking reasonable steps to stop continuing releases of hazardous substances and preventing threatened future releases;
• Providing cooperation, assistance, and access to persons conducting response action or natural resource restoration at the property;
• Complying with information requests and administrative subpoenas; and
• Providing legally required notices related to the discovery or release of hazardous substances at the property.
Ohio H.B. 168, which now goes to the Senate, would provide real estate developers and businesses security when considering investing in brownfield properties. The current version of H.B. 168 may be viewed here.