As Reported by the Senate Agriculture and Natural Resources Committee
133rd General Assembly
Regular Session Am. H. B. No. 168
2019-2020
Representative Arndt
Cosponsors: Representatives Hambley, Baldridge, Blessing, Carruthers, Crossman, Dean, Ginter, Green, Greenspan, Grendell, Holmes, A., Hoops, Jones, Koehler, Manning, G., McClain, Patterson, Patton, Perales, Plummer, Reineke, Riedel, Rogers, Romanchuk, Ryan, Scherer, Seitz, Smith, R., Smith, T., Stein, Upchurch, West
Senators Hackett, Hoagland, Schaffer
A BILL
To amend sections 3746.02 and 3746.05 and to enact section 3746.122 of the Revised Code to establish an affirmative defense to a release or threatened release of hazardous substances from a facility for certain bona fide prospective purchasers.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3746.02 and 3746.05 be amended and section 3746.122 of the Revised Code be enacted to read as follows:
Sec. 3746.02. (A) Nothing in this chapter applies to any of the following:
(1) Property for which a voluntary action under this chapter is precluded by federal law or regulations adopted under federal law, including, without limitation, any of the following federal laws or regulations adopted thereunder:
(a) The "Federal Water Pollution Control Act Amendments of 1972," 86 Stat. 886, 33 U.S.C.A. 1251, as amended;
(b) The "Resource Conservation and Recovery Act of 1976," 90 Stat. 2806, 42 U.S.C.A. 6921, as amended;
(c) The "Toxic Substances Control Act," 90 Stat. 2003 (1976), 15 U.S.C.A. 2601, as amended;
(d) The "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 94 Stat. 2779, 42 U.S.C.A. 9601, as amended;
(e) The "Safe Drinking Water Act," 88 Stat. 1661 (1974), 42 U.S.C.A. 300(f), as amended.
(2) Those portions of property where closure of a hazardous waste facility or solid waste facility is required under Chapter 3734. of the Revised Code or rules adopted under it;
(3) Except as provided in division (A)(3) of section 3737.88 of the Revised Code, properties that are subject to rules adopted by the fire marshal under Chapter 3737. of the Revised Code pertaining to corrective actions as defined in section 3737.87 of the Revised Code;
(4) Property that is subject to Chapter 1509. of the Revised Code;
(5)
Any
other
property
if
the
director
of
environmental
protection
has
issued
a
letter
notifying
the
owner
or
operator
of
the
property
that
the
director
will
issue
an
enforcement
order
under
Chapter
3704.,
3734.,
or
6111.
of
the
Revised
Code,
a
release
or
threatened
release
of
a
hazardous
substance
or
petroleum
from
or
at
the
property
poses
a
substantial
threat
to
public
health
or
safety
or
the
environment,
and
the
either
of
the
following
applies:
(a) The person subject to the letter does not present sufficient evidence to the director that the person has entered into the voluntary action program under this chapter and is proceeding expeditiously to address that threat.
(b)
The
person
cannot
demonstrate
the
person
is
a
bona
fide
prospective
purchaser
under
section
3746.122
of
the
Revised
Code.
For
For the purposes of this division, the evidence constituting sufficient evidence of entry into the voluntary action program under this chapter shall be defined by the director by rules adopted under section 3746.04 of the Revised Code.
(B) The application of any provision of division (A) of this section to a portion of property does not preclude participation in the voluntary action program under this chapter in connection with other portions of the property where those provisions do not apply.
(C) As used in this section, "property" means any parcel of real property, or portion thereof, and any improvements thereto.
Sec.
3746.05.
(A)
A remedy or remedial activity conducted
under this chapter may attain applicable standards otherwise
established in this chapter and rules adopted under it through the
use of institutional controls or activity and use limitations that
restrict the use of a property or through the removal of, treatment
of, transportation for treatment or disposal of, disposal of, or use
of engineering controls that contain or control the release of
hazardous substances or petroleum at or from a property. Any such
institutional controls or activity and use limitations that restrict
the use of a property shall ensure that the property is used only for
purposes that comply with the applicable standards established in
this chapter and rules adopted under it pertaining to the intended
use of the property after the completion of the voluntary action, as
the intended use is specified in the documents establishing the
institutional controls or activity and use limitations. If
(B)(1)
If
a property is subject to institutional
controls or activity and use limitations and is put to a use that
does not comply with the institutional controls or activity and use
limitations specified in the documents establishing the institutional
controls or activity and use limitations, the
director
of
environmental
protection
may
issue
an
order
voiding
the covenant not to sue issued under section
3746.12 of the Revised Code for the property in connection with the
voluntary action for which the institutional controls or activity and
use limitations were established
is
hereby
declared
to
be
void
on
and
after
the
date
of
the
commencement
of
the
noncomplying
use.
(2) An order issued by the director under division (B)(1) of this section is a final action appealable under Chapter 3745. of the Revised Code.
Sec. 3746.122. (A) As used in this section, "bona fide prospective purchaser" and "facility" have the same meanings as in 42 U.S.C. 9601.
(B) In a civil action to address a release or threatened release of hazardous substances from a facility, it is an affirmative defense, and a person is immune from liability to this state for performing investigational and remedial activities, if all of the following apply:
(1) The person demonstrates that the person is a bona fide prospective purchaser of the facility.
(2) The state's cause of action against the person rests upon the person's status as an owner or operator of the facility.
(3) The person does not impede a response action or a natural resource restoration at the facility.
(C) Nothing in this section precludes the application of section 3746.02 of the Revised Code to this section.
Section 2. That existing sections 3746.02 and 3746.05 of the Revised Code are hereby repealed.