Abandoned Service Stations – An Often Overlooked Ohio Program
Most Ohio local governments and owners of gasoline service stations have at least some familiarity with the regulation of underground storage tanks by the Bureau of Underground Storage Tank Regulations (BUSTR). There is, however, an additional statutory scheme aside from the BUSTR regulations that is often unknown to many governmental entities and even private companies owning gasoline service stations.
Ohio Revised Code 3791.11 prohibits a person from constructing, renewing operation of, or continuing operation of a "service station" unless a bond is filed and renewed annually with each municipal corporation or the county in which it is located. An owner of two or more service stations may, in the alternative, file a bond with the State Treasurer that covers all of its service stations in the State. Those owning service stations in Ohio should be aware of this requirement, as the failure to file a bond is a minor misdemeanor.
Ohio municipal corporations and counties should also be aware of the program because it imposes a duty to inspect all service stations within its boundaries and determine if any meet the definition of an "abandoned service station." An "abandoned service station" is one that has not been used for the retail sale of gasoline or other petroleum products for a continuous period of six months and where the failure to reasonably secure the station results in conditions that endanger the public health, welfare, safety or morals. The statute lists several factors that would support such a finding such as unprotected gasoline storage tanks, piping and valves or defective or deteriorated electrical wiring. This determination is made pursuant to a hearing with notice to all persons listed in the bond, including the property owner and any lessee, and those holding a lien on the property.
If the municipal corporation or county finds that the property is an "abandoned service station," it may order the repair or removal of the station and its appurtenances. If recipients of the notice do not appear at the hearing, the repair or removal does not take place in the time specified in the order, or the order is not appealed to the court of common pleas within 30 days, the municipal corporation or county may enter the property and conduct the repair or removal. It may then bring an action against the bond to recover its cost.
Although the amount of the bond required is only $3,000 per service station, or a total of $150,000 if filed with the State Treasurer to cover two or more service stations in the state, the owner is jointly and severally liable to the municipal corporation or county for any deficiency beyond the amount collected on the bond. Therefore, Ohio municipal corporations and counties should be aware of this program as it may afford some relief from health or safety risks presented by abandoned service stations within their boundaries.
For additional information regarding this Legal Update, please contact Kevin N. McMurray or any other attorney in Frost Brown Todd's Environmental Law Practice Group or Government Services Practice Group.