ISRA OVERVIEW

What is ISRA?

ISRA imposes certain preconditions on the sale, transfer, or closure of "industrial establishments" involved in the generation, manufacture, refining, transportation, treatment, storage, handling or disposal of hazardous substances or wastes.

The ISRA program has gotten better over the years, but bottom line ISRA is an exhaustive evaluation of a property and most every ISRA will require that testing be performed if only to verify the presumption that no contamination is present.  So start early and be prepared for some bad news.

The ISRA Process

1. Determine if your type of business/transaction qualifies as an "Industrial Establishment" by meeting the four criteria below. If not, ISRA does not apply to you.

• The place of business must have been engaged in operations on or after December 31, 1983. 
• The place of business must have a North American Industry Classification System (NAICS) code that is subject to ISRA.   Previously an ISRA applicability was based on the facility Standard Industrial Classification (commonly known as "SIC") code, which the NAICS replaced. Although this is a very general explanation, if the facility manufactured anything, then you are more likely to be subject to ISRA.
• The place of business must involve the generation, manufacture, refining, transportation, treatment, storage, handling, or disposal of hazardous substances or hazardous wastes. Essentially: were hazardous substances or hazardous wastes used on the site?
• The property owner or the facility operator must be planning on closing the operation or transferring ownership/operation of a facility that meets the previous criteria.

2. Notify the NJDEP within five days of any triggering event by filing a General Information Notice (GIN). Triggering events are specifically enumerated in ISRA, N.J.S.A. 13:1K-8, and include the sale of business or property, cessation of operations, and bankruptcy.

3. Hire an LSRP (Licensed Site Remediation Professional) to perform a Preliminary Assessment or "PA".

4. During a PA, the LSRP will audit the entire property and assess various environmental issues.

5. LSRP provides an RAO (Remedial Action Outcome). This could include...

6. Obtain a "No Further Action" letter from the NJDEP or get NJDEP approval of the RAO as a precondition for the closing of operations or transferring of ownership/operation at the Industrial Establishment.

Frequently Asked Questions

What North American Industry Classification System (NAICS) code is subject to ISRA covered by ISRA?

If the facility has a NAICS code listed in the Technical Requirement for Site Remediation NJAC 7:26 B - Appendix C, then the facility is subject to ISRA.

What is a Letter of Non-Applicability?

The NJDEP in the past used to draft letters of non-applicability due to the confusion over what sites were applicable to ISRA.  At the time, the NJDEP was trying to address the concerns of mortgage bankers, attorneys and purchasers with possible applications of ISRA.  The NJDEP has since stopped providing these Letters of Non-Applicability for ISRA as there has been a rising knowledge of the process.

If I am in a multi-tenanted building, do I need separate applications or fees for each tenant?

The NJDEP will process this type of application as one application with one fee if the applicant attaches a list of all the tenants, past and present, along with the dates of their tenancy and a description of operations for each tenant and all other required information.

Is it necessary for individuals who are subject to ISRA to hire an attorney or environmental consultant such as a Licensed Site Remediation Professional (LSRP) to comply with the law?

That will depend on the complexity of the legal or environmental issues at a particular site.  All new ISRA cases require a Licensed Site Remediation Professional (LSRP) to be retained to oversee the work.  The LSRP will issue a site RAO (Remedial Action Outcome), as NJDEP No Further Action determinations for new ISRA sites no longer exist.

What is a Remediation Agreement?

A Remediation Agreement is a written contract entered into between an owner or operator of an industrial establishment and the NJDEP which allows the ISRA triggering event to proceed prior to the completion of all ISRA requirements.  This agreement stipulates who will be responsible for the remediation of the site.  The transaction may be consummated upon the execution of a Remediation Agreement by the NJDEP and the person responsible for compliance with the Remediation Agreement and prior to obtaining a No Further Action or Remedial Action Workplan approval.

What are the terms of a Remediation Agreement?

 There are three general terms of a Remediation Agreement:

1. Specific time frames that must be met in completing ISRA requirements.

2. Posting of a remediation funding source equal to the estimated cost of remediation.

3. Penalties for failure to complete ISRA requirements. 

When can I apply for a Remediation Agreement?

Applications can be filed at any time during the case but prior to the completion of the standard ISRA administrative process.

How are the areas to be investigated under ISRA determined in a multi-tenant leasehold situation?

The area that must be investigated is the real property comprising the leasehold and any other property utilized in connection with the Industrial Establishment, including any storage areas, tanks, septic systems or other units that would be potential Areas of Concern under the Technical Requirements for Site Remediation (N.J.A.C. 7:26E).  The property that is determined to be subject to ISRA review must be evaluated for both current and any historic areas of concern regardless of fault.  For example, if the area of concern is on the leasehold or ever serviced the leasehold, it would be addressed under ISRA even if the tenant never used the area.  However, if an area of concern was never used by the tenant, the area of concern is located off the leasehold portion and there has never been a connection during the tenancy, then the area of concern would not be addressed under ISRA.

How does the NJDEP Licensed Site Remediation Professional (LSRP) program involve ISRA?

All newly implemented regulated environmental work in New Jersey must be overseen and reviewed by an NJDEP LSRP.  Within 45 days of an ISRA triggering event, the individual or corporation subject to ISRA must retain an LSRP.  An ISRA cannot be completed without LSRP involvement.  LSRP retention is the new dynamic in New Jersey.

Are Auto Repair Shops subject to ISRA?

No, auto repair, auto sales, car dealerships, and repair shops do not fall under ISRA regulations.  It is a common misconception that auto repair is an ISRA-regulated industry, perhaps because you are generating waste liquids and at one time in the past waste oil had a hazardous classification in New Jersey.

Now a facility that performed auto repair and now operates as an ISRA-applicable business, can hold environmental liability for the ISRA-applicable business. You see operations of auto repair can have an environmental impact. In-ground lifts, ASTs, USTs, slop sinks, parts washing stations with solvents, floor drains, waste oil, etc. all are AOCs (Areas of Concern) for auto repair shops.  The USTs are generally covered under their regulations.  The other AOCs are things to be looked into for an ISRA evaluation. NO matter what the current ISRA applicable business, the ISRA will evaluate for historical use of the property, which is taken under consideration when evaluating for AOCs. So, a solvent parts washing station used 30 years ago may end up being investigated under an ISRA.

What Fees are subject to the ISA Process?

The NJDEP charges their fees based on categories and the categories are based on the number of Contaminated Areas of Concern (CAOCs) identified on the site needing remediation and impacted media (see below).  A fee of $925 is category 1.  The $1850.00 is category 2 which is the NJDEP default value.  The default value has changed over the years, in short, the fee goes higher. Current fee schedules are listed below.

Annual Remediation Fees Effective July 1, 2023

Citation Fee Citation Summary

N.J.A.C. 7:26C- 4.3(a)2i        $925 Category 1:        0-1 CAOC

N.J.A.C. 7:26C- 4.3(a)2ii       $1,850 Category 2:     2-10 CAOC

N.J.A.C. 7:26C- 4.3(a)2iii      $10,175 Category 3:   11-20 CAOC

N.J.A.C. 7:26C- 4.3(a)2iv      $20,350 Category 4:   >20 CAOC

N.J.A.C. 7:26C- 4.3(a)2         $1,570 Media – Ground Water

N.J.A.C. 7:26C- 4.3(a)2         $1,570 Media – Sediment

N.J.A.C. 7:26C- 4.3(a)2         $1,570 Media – Contaminated Ground Water Migrating into Surface Water

Can NJDEP charge ISRA Fees on an ISRA site where the ISRA did not start when required?

This means we stopped an ISRA-applicable business 10 years ago and then rented the property to a non-ISRA-applicable business. I am now selling the property and a Phase I turned up the possibility my former operations were subject to ISRA, and I am in violation of ISRA regulations.

This property is required to start the ISRA process and the NJDEP will bill you for fees going back 10 years when the ISRA should have started.  Curren has seen this happen on multiple sites.

ISRA Experts

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