ISRA - Still Creating Challenges in NJ Real Estate Transactions

It is common for a business to be subject to New Jersey Department of Environmental Protection's (NJDEP) Industrial Site Recovery Act (ISRA) regulation and not be aware of their responsibility.  As buyer and seller negotiate the transaction, due diligence and financial activities are forced to meet tight closing deadlines.  This causes some transactions to stall due to last minute findings to comply with ISRA requirements. Provided below is a summary of key factors of ISRA to help assist you in identifying these issues sooner than later.

Applicability

A business is subject if it is considered an "Industrial Establishment" which means it must:

  1. Have a North American Industry Classification System (NAICS) code that is subject to ISRA, as listed in Appendix C of the ISRA regulations; and
  2. Have been engaged in operations at the site on or after December 31, 1983; and 
  3. Involve the generation, manufacture, refining, transportation, treatment, storage, handling, or disposal of hazardous substances or hazardous wastes, i.e., were hazardous substances or hazardous wastes used at the site. 

To determine if a business has an applicable NAICS number, one can visit http://www.census.gov/eos/www/naics/ to search by operations or known code numbers.

Triggers, Steps & Exemptions

If a certain business transaction occurs including the sale of property, sale of business or the cessation of operations, the business must complete the following steps:

  1. Notify the NJDEP within five days of any triggering event by filing a General Information Notice (GIN).
  2. Conduct a Preliminary Assessment (PA) of the site to identify potential Areas of Concern (AOCs). This typically takes around 30-45 days to complete and is performed by an environmental consulting firm.
  3. If the PA finds AOCs that warrant investigation, then a Site Investigation (SI) must be performed (i.e., sampling) to determine if any contaminants are present above any applicable remediation standards.
  4. If there is contamination present, a Remedial Investigation (RI) must be performed to determine the nature and extent of contamination so that a suitable remedial action can be implemented. 

While certain businesses can be classified as an Industrial Establishment and subject to an ISRA triggering event, a business may qualify for one of the following exemptions:

  • De minimis quantity: This is for sites that have or have used only small amounts (as defined by ISRA) of hazardous substances and/or hazardous wastes at any given time during the operation.
  • Remediation in Progress Waiver: This is for sites already being investigated by a prior owner or operator pursuant to ISRA.
  • Regulated Underground Storage Tank (UST) Waiver: This exemption applies to a UST that is either in compliance with current regulations or, if it has had a discharge, is in compliance with the required cleanup activities.

Often Overlooked Factors to Consider

  • The NAICS code applicable to ISRA is from 2002 and not the most recent published codes from 2012.
  • For a site which is leased to a single tenant, the industrial establishment includes all of the block(s) and lot(s) upon which the business is conducted. For properties with two or more leased spaces, the industrial establishment includes the leasehold of the ISRA subject tenant, as well as any areas that are utilized by that business. Implications include the assessment of non-operational related discharges including site wide historic fill and former agriculture.
  • GINs need to be submitted within 5 days of an event which include making a specific transaction public, not just the proposed date of the transaction.
  • Historic ISRA operations (no longer operational) do not need to be investigated if the property has been sold more than one time since triggering event.

Navigating through the ISRA process starts with EWMA. If you would like more information on this subject, please contact Michael Sylvester at This email address is being protected from spambots. You need JavaScript enabled to view it. or 973-560-1400 ext. 187 or Vicky Reed at This email address is being protected from spambots. You need JavaScript enabled to view it. or 973-560-1400 ext. 169.

Where to Find Us


Date


Who

Where


September 11


Michael Sylvester, EVP
Paul Schatz, VP

ICFNJ Golf Outing
September 15

 
Don Richardson, President
Michael Sylvester, EVP

CIANJ Real Property Meeting


September 18


Don Richardson, President
Michael Sylvester, EVP

NAIOP Golf Classic


September 19


Al Moffit, VP

RealShare NJ


September 20 


Don Richardson, President
Michael Sylvester, EVP

EBC Roundtable

 

Board of Directors Announce Don Richardson, President EWMA

We are thrilled to announce the promotion of Don Richardson to President of EWMA.  Don joined the company six years ago as Vice President Strategic Business Development and Marketing.  With more than 20 years of environmental consulting experience, he is an expert in supporting property risk evaluation and asset valuation for real estate, financial and insurance industries.  Don will continue to oversee EWMA’s unique Guaranteed Fixed-Price Remediation Program called Secur-It®.  This program offers clients peace of mind with complex transactions providing financial security against known and unknown environmental conditions.   He is especially excited about the application of innovative technologies and business strategies to solve client and project challenges.   

In assuming his new role, Don will oversee the dedicated staff and set the direction for growth.  He brings a wealth of experience and we are excited about his new role at the company.  Don is joined by the other members of the Leadership Team, Michael Sylvester, Executive Vice President and Paul Schatz, Vice President Operations to continue the successful history of EWMA.

Don is a Certified Professional Geologist and earned his B.S. in Geology from Washington & Lee University (VA) and M.S. in Hydrogeology from the University of New Hampshire.  He can be reached at (973) 560-1400 or This email address is being protected from spambots. You need JavaScript enabled to view it..  Please join us in congratulating Don Richardson on his promotion.

Advances in Ground Water Remediation

By David Fullmer

EWMA has a long history of applying innovative remedial technologies to benefit our clients. The latest being utilized by EWMA is the design and application of enhanced anaerobic bioremediation technologies to completely degrade chlorinated solvents in groundwater. A conceptual enhanced bioremediation program would typically consist of biostimulation (addition of a food grade amendment, such as emulsified vegetable oil, to serve as an electron donor and to stimulate biological activity) with possible bioaugmentation (supplemental addition of specific bacterium, if necessary). The resulting fermentation reactions create an environment highly favorable for the rapid dechlorination and subsequent remediation of the chlorinated solvents in the groundwater.

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Phone 973-560-1400

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