On June 16, 2020, Governor DeWine signed House Bill 168 into law. The bill is designed to encourage brownfield redevelopment and reinvestment in the State of Ohio by enhancing liability protection to brownfield purchasers.
Predominantly, the bill adopts from federal law an affirmative defense, the “Bona Fide Purchase Defense,” to purchasers who conduct appropriate environmental due diligence. The standard for environmental due diligence adopted is the “All Appropriate Inquiries” (“AAI”) standard from the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The affirmative defense will be available retroactively to properties acquired after January 11, 2002 that followed the AAI standard.
In addition, the bill, which was unanimously passed out of the State Legislature in May 2020 on support of testimony by Vorys, Sater, Seymour and Pease LLP environmental partner Kristin Watt, strengthens Ohio EPA’s Voluntary Action Program (“VAP”). Under the VAP, Ohio EPA can provide a “Covenant Not to Sue” (“CNS”) to volunteers who follow the criteria of the program. The bill strengthens these covenants by eliminating the VAP’s “automatic CNS voidance” for the failure to strictly adhere to a CNS’s covenants use restriction terms. The bill prescribes that the voiding of a CNS may only come through an Order at the discretion of the Director of Ohio EPA.
The law will become effective on September 14, 2020. Please contact David Edelstein at email@example.com or Kristin Watt at firstname.lastname@example.org about this bill.