Ohio’s Cessation of Regulated Operations Program

Published On: April 29, 2022

Abandoned sites can be damaging to the environment and can lead to expensive cleanups. Take for example the former Dayton Tire and Rubber Facility. In 1987, vandals entered the closed tire and rubber plant to recover salvageable materials. While removing copper cores from electric transformers remaining at the facility, the vandals drained the Askerol (PCB-containing) transformer oil onto the ground. The oil ended up migrating into a nearby creek, costing more than $8 million in cleanup costs. This incident and others led Ohio’s legislature to create the Cessation of Regulated Operations (CRO) program.

Established in 1996, the goal of the CRO program is to limit or prevent potential threats to human health and the environment that are created when business owners and operators abandon facilities where chemicals were used, stored, or treated. Essentially, the program requires the owner or operator of the facility to prevent unauthorized entry to the abandoned facility; to remove all regulated substances and nonstationary equipment that contain or are contaminated with regulated substances; and to certify removal to the director of the Ohio Environmental Protection Agency (OEPA).

To determine whether the CRO regulations apply to your situation, ask yourself the following:

  • Does the facility have threshold amounts of chemicals subject to chemical inventory reporting to the State Emergency Response Commission-Emergency Planning Community Right to Know (SERC-EPCRA Tier II Chemical Inventory Report)?
    • Is your facility subject to the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard?
    • Does your facility, at any time in a 24-hour period, produce or store hazardous chemicals or extremely hazardous substances in excess of the threshold quantities (generally 10,000 pounds and 500 pounds, respectively)?
    • Did your facility meet both above-mentioned criteria at any time in the three-year period prior to ceasing operations?
  • Does the planned change in your business operation fall within the meaning of CRO?
    • CRO is defined as the discontinuation or termination of regulated operations (e.g., production, use, storage, or other handling of regulated substances), or the finalizing of any transaction or proceeding through which those operations are discontinued.
  • Is your facility exempt from the CRO requirements?
    • Exempt facilities include:
      • Oil/gas production operations
      • Public utilities
      • Any underground storage tank system regulated by the Ohio Bureau of Underground Storage Tank Regulation (BUSTR)

If you asked yourself these questions, and the answers indicate CRO regulations apply, you must comply with CRO rules, both 30-day and 90-day requirements, stipulated in the program, which include the following:

Actions you must take within 30 days from the CRO:

  • Submit a notice of CRO to the OEPA via form EPA 0327, Local Emergency Planning Commission, and local fire departments;
  • Designate a contact person;
  • Secure and post warning signs around the areas that contain or are contaminated with regulated substances; and
  • Maintain security and warning signs.

Actions you must take within 90 days from the CRO:

  • Submit form EPA 0329 to the OEPA along with the most recent chemical inventory report including whether any asbestos-containing materials are present;
  • Submit a current OSHA hazardous chemical list or material safety data sheet (MSDS) for each chemical required to be on file with the SERC to the OEPA;
  • Submit a description of location and regulated substance contained in each stationary vat, tank, electrical transformer, or vessel to the OEPA if that equipment will remain on-site;
  • Submit a list of every stationary tank, vat, electrical transformer, or vessel to the OEPA that contains or is contaminated with a regulated substance prior to or at the time of cessation;
  • Drain and removal all regulated substances from each stationary tank, vat, electrical transformer, vessel, and piping that will remain on-site and lawfully transfer the regulated substances to another operating facility you own or operate, to another owner, or dispose of the substances;
  • Remove all regulated substances, debris, nonstationary equipment, containers, vehicles, and rolling stock that contain or are contaminated with regulated substances and then lawfully transfer them off-site; and
  • Certify these actions to the OEPA.

There are also provisions in the program for temporarily discontinuing and then re-starting operations that let you waive many of these requirements. Further, if you are a first mortgage holder or a fiduciary of a reporting facility where the owner/operator has ceased operations and fails to act as described above, both have specific statutory duties under Ohio law. Within the following timeframes, each must comply with site security requirements and submit a notice of abandonment to the OEPA, the Local Emergency Planning Commission, and local fire departments.

  • A first mortgage holder has 15 days from receipt notice of abandonment by the owner/operator.
  • A fiduciary has 60 days from notice of CRO.

Fines for failure to comply with the CRO can range from the response costs incurred by the government as a result of noncompliance to up to $25,000 and four years imprisonment for each day of violation.

In summary, Ohio’s CRO program provides specific requirements for a facility’s owner, operator, and others with a financial interest in the facility or the associated real property to follow to prevent potential threats to human health and the environment that are created when business owners and operators abandon facilities where chemicals were used, stored, or treated. It is important for those with responsibilities under these regulations to understand those requirements not only for the protection of public health and the environment but also to avoid substantial penalties associated with noncompliance.

 

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