Managing Facilities, Due Diligence and Facility Transfers
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ISRA compliance is necessary in the following two instances:
• The transfer of ownership of a property or a business.
• The closure of a business (cessation of operations).
The statute and DEPE regulations list a number of specific
circumstances that constitute transfer. As mentioned above, DEPE
amended its regulations regarding applicability. Despite the fact that
ISRA had not yet become law, DEPE proceeded with amendments to
ECRA rules to comply with a court-imposed deadline and ruling. In
In
re adoption of N.J.A.C. 7:26B, the New Jersey Superior Court upheld
DEPE's rules promulgated under ECRA, but remanded certain
provisions regarding which transactions trigger an ECRA review (i.e.,
applicability) to DEPE for further rulemaking. DEPE proposed
amendments to its rules on March 30, 1992, to conform to the court's
ruling, but, on July 23, 1992, ISRA was introduced in the state
legislature. DEPE still proceeded with its rulemaking despite the possi-
bility that ISRA would affect the applicability provisions of ECRA.
DEPE finalized the proposed rules on March 1, 1993; portions of the
new rules were not mandated by the court's decision. The rules clarified
which business transactions trigger ECRA. DEPE has said that the new
rule was consistent with the then-pending ISRA. DEPE's new
regulations became effective when Governor Florio signed ISRA.
Further rulemaking on the applicability issue may be forthcoming.
If requested by a site owner or operator, DEPE will perform an
applicability determination for a fee. Applicability determinations enable
establishments to be certain of whether they need to comply with ISRA.
Owners and operators of industrial establishments are responsible for
compliance with ISRA. Once ISRA is triggered, the owner or operator
must submit to DEPE a Pre-transaction Notice [corresponding to the
General Information Submission (GIS) that was formerly required] in
conformity with N.J. Stat. Ann. § 13:1K-9(4). Unless a waiver or
deferral should apply, after the Notice has been submitted, the ISRA-
triggering party must remediate the property "in accordance with criteria,
procedures, and time schedules
established by the department." N.J.
Stat. Ann. § 13:1K-9. Approvals for an ISRA-regulated transaction
include either an approved negative declaration, an approved remedial
action workplan, a no further action letter, or a remediation agreement
approval.
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