In my four part blog post series- Rethinking Brownfield Redevelopment in Ohio- the final post advocated for a new Ohio liability protection law for buyers of contaminated property. The new law would provide brownfield redevelopers liability protection faster and at a lower cost than the current Ohio Voluntary Action Program (VAP).
I suggested looking to Michigan’s Baseline Environmental Assessment (BEA) law for guidance on how to set up such a program. Well Kansas has recently passed a new law that provides a second example.
On May 9, 2016, the Contaminated Property Redevelopment Act (S.B. 227) was signed into law by Kansas Governor Sam Brownback. Similar to the Michigan BEA, the new law provides buyers of contaminated property liability protection under certain conditions. Those conditions include:
- The Buyer cannot have caused or contributed to the pre-existing contamination on the property;
- The Buyer cannot exacerbate pre-existing contamination on the property either through redevelopment or other activities;
- Buyer must request liability protection from the Kansas Department of Health ("Kansas DHE") and Environment by applying for a Certificate of Environmental Liability Release ("CELR");
- The Application for a CELR must include a Phase I or Phase I/Phase II assessment report or other reports requested by Kansas DHE that demonstrate the property was adequately assessed; and
- The Buyer must provide notice to future purchasers of the existence of the CELR and notify Kansas DHE upon transfer of the property.
What is interesting is that the new law does not affirmatively require the Kansas DHE to make a finding that buyer has taken appropriate steps to address immediate environmental threats or public health risks similar to the "reasonable steps" requirement under U.S. EPA’s Bona Fide Purchaser Defense.
A fee is charged by the Kansas DHE to review CELR applications. Those fees are placed into the Contaminated Property Redevelopment Fund to assist municipalities with brownfield redevelopment.
Kansas provides another example of an enhanced Bona Fide Purchaser Defense at the State level that will likely accelerate brownfield redevelopment.