Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Protections Under Federal and Ohio Law for Bona Fide Prospective Purchasers of Contaminated Property

Most industrial/commercial property developers are generally aware of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), often also referred to as “Superfund”. CERCLA, a United States federal law administered by the U.S. Environmental Protection Agency, was created, in part, because the U.S. Environmental Protection Agency recognized that environmental cleanup could help promote reuse or redevelopment of contaminated, potentially contaminated, and formerly contaminated properties, helping revitalize communities that may have been adversely affected by the presence of the contaminated properties. Commercial property developers should be aware that CERCLA provides for some important liability limitations for landowners that own contaminated property impacted by materials hazardous to the environment. It can also assist with landowners concerned about the potential liabilities stemming from the presence of contamination to which they have not contributed. In particular, CERCLA provides important liability limitations for landowners that qualify as (1) bona fide prospective purchasers (BFPPS), (2) contiguous property owners, or (3) innocent landowners. 

A relatively new Ohio law works in tandem with CERCLA to make purchasing contaminated properties in Ohio a bit less risky for the BFPPs. By way of a quick recap of CERCLA before discussing Ohio law, the 2002 amendments to CERCLA created landowner liability protections, including protection for BFPPs as mentioned above. The BFPP provision protects a party from Superfund owner/operator liability for a party that acquired property after January 11, 2002 by way of providing for available affirmative defenses to liability for said developers involved in certain remedial activities. These protections are immensely important as CERCLA imposes strict, joint, and several liabilities on property owners/operators for releases of hazardous substances into the environment, meaning that remediation costs can be overwhelming for parties that did not necessarily cause the contamination. BFPPs are able to purchase property with knowledge of contamination so long as the BFPP meets certain statutory criteria. The statutory criteria include conducting all appropriate inquiries into the previous ownership and uses of the property, disposal of hazardous substances at the property that occurred prior to the acquisition, providing all of the legally required notices regarding any releases, cooperating with those conducting response actions at the property, complying with any institutional land use or engineering controls, and taking the appropriate steps and care with regard to any hazardous substances at the property. 

The new Ohio law that went into effect on September 15, 2020 through the enactment of House Bill 168 has been codified in Ohio Revised Code 3746.122.  It is a new BFPP defense from liability that in large part mirrors the defense under CERCLA. It is available as a defense for any BFPP where the acquiring landowner qualifies under the same BFPP factors referenced above with a couple additional qualifications – the cause of action against the person must be due to the person’s status as an owner or operator of the facility, and the person must not impede the state’s actions in responding to a release or threatened release of hazardous substances. The main advantage of Ohio’s law is that prior to the Ohio law went into effect, there was not a similar defense to state-level liability for BFPPs. This often left BFPPs dealing with state-level liability with no choice other than to work through the Ohio Voluntary Action Program in order to obtain a Covenant Not to Sue from the State of Ohio, requiring a certified professional to issue a no Further Action Letter and for Ohio to issue a Covenant Not to Sue based on the No Further Action Letter.  This was frequently a very expensive and time-consuming process that was often avoided. The new Ohio law, however, requires no affirmative government approval to take effect. 

Ohio’s law pertaining to BFPP defense does differ, however, from CERCLA as it does not provide blanket immunity from liability in any action brought by the federal government or a private citizen. Instead, Ohio’s law only provides immunity in an action brought by the state to recover investigative or remedial costs, where the basis for liability is the person’s status as an owner or operator. This is obviously a narrower scope than CERCLA. Nonetheless, it is surely a welcome law for any individual or entity that has purchased commercial property in Ohio that may contain hazardous material. 

For additional questions, please contact Litigation Attorney Jack Hinneberg at jwhinneberg@bmdllc.com.

Puerto Rico Is Open For Business

Puerto Rico has the highest vaccination in the nation. More than 73% of the total population is fully vaccinated. The U.S. national average is just over 57%. The ports opened in June 2020 and San Juan held it first live concert this past summer. It is important to remember that Puerto Rico is a U.S. territory and there is no need for visas, the banking systems is almost identical to the mainland and the Island uses the U.S. postal service and U.S. dollar as its currency. There are thousands of flights from the U.S. to Puerto Rico daily and all main airlines fly to the Island.

Ohio Medical Board Changes Telemedicine Rules

A SCMS News Article by Scott Sandrock.

The Rising Threat from Insiders – Get Your House in Order

As its name implies, an ‘Insider Threat’ originates inside an organization. An ‘insider’ is any person who has or had authorized access to or knowledge of an organization’s resources, including personnel, facilities, information, equipment, networks, and systems. ‘Insider threat’ can manifest from malicious, complacent, negligent or unintentional acts that negatively affect the integrity, confidentiality, and availability of the organization, its data, personnel, or facilities. Certainly, ‘Insider Threat’ can be an activity by a bad actor employee, but can also arise from an inadvertent or unknowing action inside an organization (such as an employee who unintentionally opens a phishing email or clicks on a malicious link).

In Cybersecurity– A Good Offense is the Best Defense

2021 has been a watershed moment for cybersecurity incidents as cybercrime has become a frequent headline and cyber criminals have thrived on unsuspecting and/or unprepared businesses and institutions. For example, the Solar Winds attack exposed sensitive data from top companies like Microsoft as well government agencies[1] and the Colonial Pipeline attack substantially disrupted the petroleum supply chain[2]. We have seen an almost 20% increase in data breaches and attacks since last year.

Changes to Medicare’s Physician Fee Schedule and Outpatient Prospective Payment System

Come the beginning of 2022, both the Medicare Physician Fee Schedule (“MPFS”) and Outpatient Prospective Payment System (“OPPS”) will look a little different. As a refresher, the MPFS lists the fees associated with reimbursement of services to providers at certain facilities, taking into account geography and costs. By contrast, OPPS sets reimbursement rates for hospitals and community mental health centers for outpatient services, which are determined in advance. A summary of some of the more pertinent changes to each rule will be outlined below.