Bill Text: OH SB296 | 2013-2014 | 130th General Assembly | Introduced

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Bill Title: To create a qualified immunity from liability for the dispensing of incompatible motor fuel when the retail dealer is not involved in the fuel selection, to limit the Product Liability Law with respect to motor fuel and motor fuel additives, and to prohibit an insurer from denying a claim on the basis that an underground storage tank is not compatible with a motor fuel if the State Fire Marshal has determined that the tank and fuel are compatible.

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced - Dead) 2014-03-11 - To Civil Justice [SB296 Detail]

Download: Ohio-2013-SB296-Introduced.html

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As Introduced

130th General Assembly Regular Session 2013-2014

S. B. No. 296

Senator Hite 

Cosponsors: Senators LaRose, Seitz 

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A BILL

To amend sections 2307.75 and 3737.88 and to enact

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section 2305.52 of the Revised Code to create a

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qualified immunity from liability for the

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dispensing of incompatible motor fuel when the

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retail dealer is not involved in the fuel

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selection, to limit the Product Liability Law with

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respect to motor fuel and motor fuel additives,

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and to prohibit an insurer from denying a claim on

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the basis that an underground storage tank is not

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compatible with a motor fuel if the State Fire

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Marshal has determined that the tank and fuel are

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compatible.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 2307.75 and 3737.88 be amended and	13
section 2305.52 of the Revised Code be enacted to read as follows:	14

Sec. 2305.52.  (A) As used in this section:

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(1) "Covered person" means a person engaged in the design,	16
manufacture, sale, storage, or distribution of motor fuel.	17

(2) "Motor fuel" means gasoline, diesel fuel, K-1 kerosene,	18
or any other liquid motor fuel, including liquid petroleum gas or	19
liquid natural gas, but excluding substances prepackaged and sold	20
in containers of five gallons or less.	21

(3) "Incompatible motor fuel" means motor fuel that is	22
incompatible with an engine or a motor according to the	23
manufacturer of the engine or motor.	24

(4) "Retail dealer" means any person that sells or	25
distributes motor fuel at a retail service station in this state.	26

(5) "Person" has the same meaning as in section 1.59 of the	27
Revised Code, except that it also includes the state or any	28
political subdivision of the state.	29

(6) "Retail service station" means a location from which	30
motor fuel is sold and is dispensed or pumped directly into motor	31
vehicle fuel tanks or approved containers for ultimate	32
consumption.	33

(B) No covered person is liable in damages or shall be	34
subject to any other remedy in a civil action for the use of	35
incompatible motor fuel in an engine or motor, if all of the	36
following apply:	37

(1) The incompatible motor fuel is dispensed at a retail	38
service station.	39

(2) The incompatible motor fuel is selected by a person other	40
than the retail dealer.	41

(3) The incompatible motor fuel is dispensed from a motor	42
fuel pump that identifies the type of fuel dispensed from the	43
pump.	44

Sec. 2307.75.  (A) Subject to divisions (D), (E), and (F),	45
(G), and (H) of this section, a product is defective in design or	46
formulation if, at the time it left the control of its	47
manufacturer, the foreseeable risks associated with its design or	48
formulation as determined pursuant to division (B) of this section	49
exceeded the benefits associated with that design or formulation	50
as determined pursuant to division (C) of this section.	51

(B) The foreseeable risks associated with the design or	52
formulation of a product shall be determined by considering	53
factors including, but not limited to, the following:	54

(1) The nature and magnitude of the risks of harm associated	55
with that design or formulation in light of the intended and	56
reasonably foreseeable uses, modifications, or alterations of the	57
product;	58

(2) The likely awareness of product users, whether based on	59
warnings, general knowledge, or otherwise, of those risks of harm;	60

(3) The likelihood that that design or formulation would	61
cause harm in light of the intended and reasonably foreseeable	62
uses, modifications, or alterations of the product;	63

(4) The extent to which that design or formulation conformed	64
to any applicable public or private product standard that was in	65
effect when the product left the control of its manufacturer;	66

(5) The extent to which that design or formulation is more	67
dangerous than a resonablyreasonably prudent consumer would	68
expect when used in an intended or reasonably foreseeable manner.	69

(C) The benefits associated with the design or formulation of	70
a product shall be determined by considering factors including,	71
but not limited to, the following:	72

(1) The intended or actual utility of the product, including	73
any performance or safety advantages associated with that design	74
or formulation;	75

(2) The technical and economic feasibility, when the product	76
left the control of its manufacturer, of using an alternative	77
design or formulation;	78

(3) The nature and magnitude of any foreseeable risks	79
associated with an alternative design or formulation.	80

(D) An ethical drug or ethical medical device is not	81
defective in design or formulation because some aspect of it is	82
unavoidably unsafe, if the manufacturer of the ethical drug or	83
ethical medical device provides adequate warning and instruction	84
under section 2307.76 of the Revised Code concerning that	85
unavoidably unsafe aspect.	86

(E) A product is not defective in design or formulation if	87
the harm for which the claimant seeks to recover compensatory	88
damages was caused by an inherent characteristic of the product	89
which is a generic aspect of the product that cannot be eliminated	90
without substantially compromising the product's usefulness or	91
desirability and which is recognized by the ordinary person with	92
the ordinary knowledge common to the community.	93

(F) A product is not defective in design or formulation if,	94
at the time the product left the control of its manufacturer, a	95
practical and technically feasible alternative design or	96
formulation was not available that would have prevented the harm	97
for which the claimant seeks to recover compensatory damages	98
without substantially impairing the usefulness or intended purpose	99
of the product.	100

(G) Subject to division (H) of this section, a product that	101
is a motor fuel, as defined in section 2305.52 of the Revised	102
Code, or a fuel additive is not defective in design or formulation	103
solely because it is, or contains, a renewable fuel, as defined in	104
section 211(o)(1)(J) of the federal "Clean Air Act," 42 U.S.C.	105
7545(o)(1)(J).	106

(H) A product that is a motor fuel, as defined in section	107
2305.52 of the Revised Code, or a fuel additive is not defective	108
in design or formulation unless it violates a control or	109
prohibition imposed by the state fire marshal or by the	110
administrator of the environmental protection agency under section	111
211 of the Clean Air Act, 42 U.S.C. 7545, as amended.	112

Sec. 3737.88.  (A)(1) The state fire marshal shall have	113
responsibility for implementation of the underground storage tank	114
program and corrective action program for releases of petroleum	115
from underground storage tanks established by the "Resource	116
Conservation and Recovery Act of 1976," 90 Stat. 2795, 42 U.S.C.A.	117
6901, as amended. To implement the programs, the state fire	118
marshal may adopt, amend, and rescind such rules, conduct such	119
inspections, require annual registration of underground storage	120
tanks, issue such citations and orders to enforce those rules,	121
enter into environmental covenants in accordance with sections	122
5301.80 to 5301.92 of the Revised Code, and perform such other	123
duties, as are consistent with those programs. The state fire	124
marshal, by rule, may delegate the authority to conduct	125
inspections of underground storage tanks to certified fire safety	126
inspectors.	127

(2) In the place of any rules regarding release containment	128
and release detection for underground storage tanks adopted under	129
division (A)(1) of this section, the state fire marshal, by rule,	130
shall designate areas as being sensitive for the protection of	131
human health and the environment and adopt alternative rules	132
regarding release containment and release detection methods for	133
new and upgraded underground storage tank systems located in those	134
areas. In designating such areas, the state fire marshal shall	135
take into consideration such factors as soil conditions,	136
hydrogeology, water use, and the location of public and private	137
water supplies. Not later than July 11, 1990, the state fire	138
marshal shall file the rules required under this division with the	139
secretary of state, director of the legislative service	140
commission, and joint committee on agency rule review in	141
accordance with divisions (B) and (H) of section 119.03 of the	142
Revised Code.	143

(3) Notwithstanding sections 3737.87 to 3737.89 of the	144
Revised Code, a person who is not a responsible person, as	145
determined by the state fire marshal pursuant to this chapter, may	146
conduct a voluntary action in accordance with Chapter 3746. of the	147
Revised Code and rules adopted under it for either of the	148
following:	149

(a) A class C release;

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(b) A release, other than a class C release, that is subject	151
to the rules adopted by the state fire marshal under division (B)	152
of section 3737.882 of the Revised Code pertaining to a corrective	153
action, provided that both of the following apply:	154

(i) The voluntary action also addresses hazardous substances	155
or petroleum that is not subject to the rules adopted under	156
division (B) of section 3737.882 of the Revised Code pertaining to	157
a corrective action.	158

(ii) The state fire marshal has not issued an administrative	159
order concerning the release or referred the release to the	160
attorney general for enforcement.	161

The director of environmental protection, pursuant to section	162
3746.12 of the Revised Code, may issue a covenant not to sue to	163
any person who properly completes a voluntary action with respect	164
to any such release in accordance with Chapter 3746. of the	165
Revised Code and rules adopted under it.	166

(B) Before adopting any rule under this section or section	167
3737.881 or 3737.882 of the Revised Code, the state fire marshal	168
shall file written notice of the proposed rule with the	169
chairperson of the state fire council, and, within sixty days	170
after notice is filed, the council may file responses to or	171
comments on and may recommend alternative or supplementary rules	172
to the state fire marshal. At the end of the sixty-day period or	173
upon the filing of responses, comments, or recommendations by the	174
council, the state fire marshal may adopt the rule filed with the	175
council or any alternative or supplementary rule recommended by	176
the council.	177

(C) The state fire council may recommend courses of action to	178
be taken by the state fire marshal in carrying out the state fire	179
marshal's duties under this section. The council shall file its	180
recommendations in the office of the state fire marshal, and,	181
within sixty days after the recommendations are filed, the state	182
fire marshal shall file with the chairperson of the council	183
comments on, and proposed action in response to, the	184
recommendations.	185

(D) For the purpose of sections 3737.87 to 3737.89 of the	186
Revised Code, the state fire marshal shall adopt, and may amend	187
and rescind, rules identifying or listing hazardous substances.	188
The rules shall be consistent with and equivalent in scope,	189
coverage, and content to regulations identifying or listing	190
hazardous substances adopted under the "Comprehensive	191
Environmental Response, Compensation, and Liability Act of 1980,"	192
94 Stat. 2779, 42 U.S.C.A. 9602, as amended, except that the state	193
fire marshal shall not identify or list as a hazardous substance	194
any hazardous waste identified or listed in rules adopted under	195
division (A) of section 3734.12 of the Revised Code.	196

(E) Except as provided in division (A)(3) of this section,	197
the state fire marshal shall have exclusive jurisdiction to	198
regulate the storage, treatment, and disposal of petroleum	199
contaminated soil generated from corrective actions undertaken in	200
response to releases of petroleum from underground storage tank	201
systems. The state fire marshal may adopt, amend, or rescind such	202
rules as the state fire marshal considers to be necessary or	203
appropriate to regulate the storage, treatment, or disposal of	204
petroleum contaminated soil so generated.	205

(F) The state fire marshal shall adopt, amend, and rescind	206
rules under sections 3737.88 to 3737.883 of the Revised Code in	207
accordance with Chapter 119. of the Revised Code.	208

(G)(1) No insurer authorized under Title XXXIX of the Revised	209
Code to conduct business in this state shall deny payment for a	210
claim on the basis that an underground storage tank, underground	211
storage tank system, or associated dispensing equipment that	212
stores or dispenses motor fuel is not compatible with that motor	213
fuel if, in accordance with the rules adopted under division (A)	214
of this section, the state fire marshal has determined that the	215
tank, system, or equipment is compatible with that motor fuel.	216

(2) As used in division (G)(1) of this section, "motor fuel"	217
has the same meaning as defined in section 2305.52 of the Revised	218
Code.	219

Section 2. That existing sections 2307.75 and 3737.88 of the	220
Revised Code are hereby repealed.	221