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Environmental and Health
difficulties in obtaining money from prior owners or responsible parties
make this option unattractive.
ISRA provides more than mere incentive for buyers to perform site
assessments of properties prior to purchase; it provides the buyer with
unique protections and shifts the burden of performing site assessments
to transferrers from buyers or transferees. Transferrers must perform
environmental assessments under the scrutiny of DEPE and clean the
site, if it is contaminated, as a condition of a transaction. ISRA allows
purchasers to void transfers of an industrial establishment or real
property if the transferor does not disclose all contamination and perform
the required cleanup, and if the transferor fails to comply with any ISRA
provisions. The transferee is also entitled to recover damages resulting
from the failure to implement a cleanup plan as well as all cleanup
and
removal costs.
DEPE performs inspections of sites at different stages of the ISRA
process and oversees actual cleanup operations, an added comfort to
purchasers of industrial property.
Of course, there are instances under ISRA--as under CERCLA--
where parties required to comply with the statute may not have been
responsible for the contamination. Many properties transferred prior to
the passage of ECRA were contaminated. Cleanups were not performed
in conjunction with these transactions and purchasers were often unaware
of the extent or existence of contamination. ISRA, like CERCLA,
provides for strict liability, without regard to fault, for all cleanup and
removal costs. Therefore, parties who acquired contaminated real estate
prior to ECRA/ISRA and who then attempt to sell this property may be
held responsible for cleanup costs. Parties who find themselves in these
seemingly unfair positions must then seek indemnity for cleanup costs
from prior owners or responsible parties.
ISRA applies under the following guidelines only:
• There must be a legally defined pending transaction.
• The facility's SIC code number must be specified in ISRA.
• Hazardous substances or wastes as defined by the regulations
must be present on the site.
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