Managing Facilities, Due Diligence and Facility Transfers
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• Government entities
that acquire property involuntarily (e.g.,
from tax delinquency, bankruptcy) will be exempt.
ISRA also permits the use of differential cleanup standards depending
on whether property will be used for residential or non-residential
purposes. The premise is that non-residential properties need not be
as clean as residential properties. Nevertheless, the law does impose an
across-the-board risk level no matter what cleanup standard is used.
That is, ISRA standards prevent exposure to any pollutant that would
result in an additional cancer in one-in-one million persons during a
lifetime of exposure.
Finally, ISRA establishes a $50-million Hazardous Discharge Site
Remediation Fund that will provide grants and loans to small businesses and
municipalities to aid in cleanup. This program will be funded by a one-
percent annual surcharge on cleanup funding sources.
ECRA was created with two purposes in mind. The program
provides insurance against the creation of future Superfund sites in
New Jersey--a state with more than its fair share when you consider its
size--and provides for a unique "buyer protection plan" by requiring that
all contamination be disclosed and cleanup completed prior to sale or
transfer. These basic principles still operate under
ISRA, although in a
less rigid form.
It is important to note that ISRA pertains only to industrial
establishments engaged in activities falling into the major Standard Indus-
trial Classification (SIC) code groups 22 -
39 (manufacturing), 46 -
49
(transportation; communications; electric, gas, and sanitary services), 51
(wholesale trade, nondurable goods), and 76 (miscellaneous repair
services). Refer to Table 1. Additionally, these businesses must be
engaged in the generation, manufacture, refining, transportation,
treatment, storage, handling, or disposal of hazardous substances and/or
wastes. ISRA exempts facilities subject to certain state laws. DEPE also
has exempted certain operations and transactions, and certain subgroups
or classes within these SIC categories (e.g., sewage systems) from the
ISRA program. New Jersey courts have thus far deferred to DEPE's
interpretation of ISRA and its applicability. Given the fact that ISRA
slightly narrows the scope of the state's cleanup law, courts may continue
to defer to DEPE's interpretation of the law.
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