The ISRA process begins with determining if the Act applies to your type of business and transaction. The provisions of ISRA only apply to industrial establishments.
The term "industrial establishment" refers to the type of business operations and transactions that would subject a facility to review under ISRA. An industrial establishment must meet each of the following three criteria:
ISRA requires owners or operators of an industrial establishment planning to close or transfer ownership or operations to notify the NJDEP. After the submittal of the notice, an owner or operator of an industrial establishment is required to obtain a no further action letter from the NJDEP or NJDEP approval of a remedial action workplan or remediation agreement as a precondition for the closing of operations or transferring of ownership or operations at these facilities.
Both the owner of the real property and operator of the industrial establishment are jointly liable for compliance with ISRA.
An owner or operator who answers "Yes" to each of the following questions is required to comply with ISRA.
The NJDEP established an applicability determination service to help the public make informed decisions concerning ISRA applicability and to provide written determinations regarding ISRA applicability. Please note a written determination from the NJDEP is not required under State regulation or statute, rather is a service the NJDEP provides if requested. If you require a written determination you must submit an Application for an Applicability Determination
The Department requests that you limit your requests for a written determination to properties that closely fit into at least three of the four criteria listed above including operating after 12/31/1983, using hazardous materials in the operations and potentially having a subject NAICS number. Applications can be submitted in anticipation that an ISRA triggering event may occur in the future so that an applicant can plan accordingly. Applications should not be submitted for properties that are clearly not subject to ISRA such as residential properties, farms and retail stores. The ISRA Applicability application discusses this further. The Department also emphasizes the ISRA applicability determination is not a no further action determination. The ISRA applicability determination issued by the Department makes no representation as to the environmental condition of the site and is not a substitute for the appropriate inquiry into a site prior to acquisition for the purposes of an innocent purchaser defense pursuant to the New Jersey Spill Compensation and Control Act (N.J.S.A. 58:10-23.11g). The ISRA Applicability Determination simply answers the question is this property subject to ISRA.
If you have a general question regarding ISRA applicability you may call the Office of Community Relations at (609) 984-3081. For specific questions on existing applications you may call (609) 633-1434 or (609) 292-1871.
At this point, the applicant should also determine if any of the alternate compliance options described below would apply.
If you determine that your facility is subject to ISRA and your facility does not qualify for any of the waivers, exemptions or expedited review processes described below, then you are required to perform all necessary remediation at your facility. During the standard ISRA process, the owners or operators of industrial establishments must 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. Once the owner or operator notify NJDEP, the owner or operator must conduct a remediation in accordance with the Technical Requirements for Site Remediation N.J.A.C. 7:26E, including a Preliminary Assessment (PA) to identify potential Areas of Concern (AOCs) and a Site Investigation (SI) to determine if any contaminants are present above any applicable remediation standards. If there is contamination documented in the SI Report, the owner or operator must conduct a Remedial Investigation (RI) to determine the nature and extent of contamination. The next step is the proposal of a Remedial Action Workplan (RAW) detailing the measures necessary to remediate contaminated property to the applicable remediation standard. The owner or operator may submit a Negative Declaration affidavit when there have been no discharges of hazardous substances or wastes on the property or that any such discharges were cleaned up to the satisfaction of the NJDEP. The NJDEP approves of the Negative Declaration by issuance of a No Further Action Letter\Covenant Not to Sue letter.
In the case of a proposed transfer of ownership, the owner or operator must submit either a Negative Declaration or a RAW with the NJDEP prior to the actual transfer. When closing operations, the owner or operator must notify the NJDEP subsequent to closing or of its public release of its decision to close and submit to the NJDEP a Negative Declaration or a RAW. This is all initiated through the filing of the ISRA application forms and/or reports in accordance with the Technical Requirements For Site Remediation, N.J.A.C. 7:26E (General Information Notice, Preliminary Assessment Report forms etc.). The execution of a Remediation Agreement between the owner or operator and the NJDEP would, in addition to an approved Negative Declaration or RAW, allow the transaction to be consummated prior to full ISRA compliance. The NJDEP oversees the case until the industrial establishment is satisfactorily remediated and the NJDEP issues a No Further Action (NFA) Letter\Covenant Not to Sue letter.
This section describes the various applications for alternate compliance options including exemptions and waivers that are provided by ISRA regulations. It is emphasized that whenever an application requires a certification, evaluation or investigation of a facility, these must be performed pursuant to the Technical Requirements for Site Remediation (TRSR), N.J.A.C. 7:26E.
A Certificate of Limited Conveyance, N.J.S.A. 13:1K-11.8, N.J.A.C. 7:26B-5.7, allows the owner of the real property to transfer up to one third of the appraised value of the real property where an industrial establishment exists without having to remediate the entire industrial establishment. This certificate is valid for three years after the issuance date. Before completing the transfer, the owner or operator must file a GIN, remediate the portion to be conveyed, and obtain a NFA approval for that portion of the industrial establishment subject to the transfer.
A DeMinimis Quantity Exemption, N.J.S.A. 13:1K-9.7, N.J.A.C. 7:26B-2.3, the owner or operator to close operations or transfer ownership or operations without conducting a remediation pursuant to ISRA under specific conditions. The owner or operator must submit a DeMinimis Quantity Exemption application and a $200 fee and obtain approval by the NJDEP prior to the transfer or closure. The required DeMinimis quantity conditions exist if the total quantity of hazardous substances and hazardous wastes generated, manufactured, refined, transported, treated, stored, handled or disposed of at the industrial establishment at any one time during the owner's or operator's period of ownership or operations:
A Limited Site Review, N.J.S.A. 13:1K-11.3, N.J.A.C. 7:26B-5.5 allows an owner or operator to remediate only those area(s) of concern at an industrial establishment where a discharge, subsequent to a prior remediation and issuance of a No Further Action letter, has occurred. The owner or operator must submit a limited site review application and certify that this AOC was either not remediated or remediated but the remediation was not approved by the NJDEP. As a result, the NJDEP only reviews that AOC and not the entire establishment.
A Remediation in Progress Waiver, N.J.S.A. 13:1K-11.5, N.J.A.C. 7:26B-5.4, allows an owner or operator of an industrial establishment to close operations or transfer ownership or operations if the site is already undergoing remediation with NJDEP oversight. The owner or operator must submit a Remediation in Progress Waiver application, be able to certify that there have been no discharges at the site during the owner's or operator's ownership or operations, and that a remediation funding source is in place. If the NJDEP approves the waiver, the remediation proceeds under the existing case until NJDEP issues a No Further Action\Covenant Not to Sue letter.
A Regulated Underground Storage Tank Only Waiver, N.J.S.A. 13:1K-11.6, N.J.A.C. 7:26B-5.3, allows an owner or operator of an industrial establishment to close operations or transfer ownership or operations without conducting remediation pursuant to ISRA if the only AOC is a regulated Underground Storage Tank (UST) or the only discharges at the site are from regulated UST’s. The owner or operator must submit an Underground Storage Tank Waiver application and preliminary assessment. If the NJDEP approves the waiver, the remediation continues with the existing BUST case until NJDEP issues a No Further Action\Covenant Not to Sue letter.
An Area of Concern Waiver, N.J.S.A. 13:1K-11.4, N.J.A.C. 7:26B-5.2, relieves an owner or operator of an industrial establishment of the requirement to perform a remediation pursuant to ISRA for any AOC at the industrial establishment for which a NFA approval exists and no new discharges have occurred at the AOC since the NFA was approved. The owner or operator must submit an area of concern waiver application, which includes a preliminary assessment and site investigation.
A Minimal Environmental Concern Waiver, N.J.S.A. 13:1K-11.7, N.J.A.C. 7:26B-5.6 allows an owner or operator to close operations or transfer ownership or operations at an industrial establishment with two or less soil AOCs requiring remediation. The AOCs cannot be a threat to drinking water or an immediate environmental concern. The owner or operator must submit a minimal environmental concern application, which includes a preliminary assessment, site investigation and remedial investigation. The goal of the NJDEP for processing this application is 30 days from receipt of a complete application. If the NJDEP approves the waiver, the transaction can occur without NJDEP approval of a RAW or Remediation Agreement. Within six months after NJDEP’s approval of the waiver, the owner or operator shall implement the remedial action and submit the remedial action report to the NJDEP.
An Expedited Review, N.J.S.A. 13:1K-11.2, N.J.A.C. 7:26B-5.1, allows an owner or operator of an industrial establishment, that previously received a No Further Action letter, to close operations or transfer ownership or operations, without remediation when there has been no discharge subsequent to the No Further Action letter or a subsequent discharge occurred and the subsequent discharge has also received a No Further Action letter. The owner or operator must submit an expedited review application and a Negative Declaration.
This section briefly describes the types of Remediation Funding Sources and the requirements for each. A Remediation Funding Source is the method of financing required in accordance with N.J.S.A. 58:10B-3 to be established by a person performing the remediation under a Remediation Agreement or Remedial Action Workplan. Guidelines for all Remediation funding sources are as follows:
WHAT IS THE AMOUNT REQUIRED? The amount of the Remediation Funding Source must be equal to or greater than the cost estimate of the implementation of the remediation as approved by NJDEP or as provided for in the Remediation Agreement. In accordance with the NJDEP Procedures for Department Oversight of the Remediation of Contaminated Sites, N.J.A.C. 7:26C, the cost estimate must be evaluated yearly and submitted to the NJDEP for review.
WHEN DO YOU ESTABLISH THE REMEDIATION FUNDING SOURCE? Please refer to “A GUIDE TO REMEDIATION FUNDING SOURCE REQUIREMENTS” below.
WHEN DO YOU HAVE TO INCREASE THE AMOUNT OF THE REMEDIATION FUNDING SOURCE? The Remediation Funding Source must be increased at any such time it is determined the cost estimate to remediate increases.
WHEN DO YOU HAVE TO DECREASE THE AMOUNT OF THE REMEDIATION FUNDING SOURCE? Any request for a decrease shall be based upon a written request to NJDEP of the remaining costs to be incurred.
WHEN WILL THE REMEDIATION FUNDING SOURCE BE RELEASED? A Remediation Funding Source will be returned by NJDEP for termination to the issuing institution upon receipt of an alternative remediation funding or upon NJDEP's notification that the person responsible for establishing the remediation funding source is no longer responsible for maintaining it.
CAN GRANTS OR FINANCIAL ASSISTANCE BE USED AS A REMEDIATION FUNDING SOURCE? All or part of the Remediation Funding Source may be established by a grant or financial assistance from the Hazardous Discharge Site Remediation Fund.
*This is a guide to the remediation funding source requirements. Please refer to the Oversight Regulations, N.J.A.C. 7:26C-7, for the specific regulatory requirements.
Any person required to conduct remediation at a contaminated site pursuant to a court order, an administrative consent order, a remediation agreement or a Department approved remedial action Workplan must establish and maintain a remediation funding source in accordance with N.J.S.A. 58:10B-3 and N.J.A.C 7:26C-7.
NOTE: A remediation funding source is not required to be posted for the cost of implementing a Department approved innovative technology or an unrestricted use or limited restricted use remedial action or with an approved property tax exemption pursuant to the Environment Opportunity Zone Act.
Allows a person establishing it to borrow money up to a limit established in a written agreement in order to pay for the cost of the remediation. The line of credit signifies a limit of credit extended by a financial institution to its customer, to the full extent of which the customer may avail itself in its dealing with the financial institution.
a contract whereby an insurer agrees, in return for premiums, on happenings of designated events, to pay certain sums as provided.
a fund held by a trustee for the purpose of providing funds for the remediation of a site.
allows a responsible person to prove to the Department that it has the sufficient funds for the remediation of a site.
In an amount equal to or greater than the estimated cost to implement the remediation, including, without limitation, the estimated cost of monitoring and maintaining all necessary engineering and institutional controls.
There is imposed on every person who is required to establish and maintain a remediation funding source a remediation funding source surcharge in amount equal to 1% of the required Remediation Funding Source pursuant to N.J.S.A. 58:10B-11 and N.J.A.C. 7:26C-7.8. This amount is payable by cashier’s or certified check to:
The 1% Surcharge is to be submitted within thirty (30) calendar days after the effective date of the oversight document, receipt of the Department’s approval of a remedial action workplan or court order. A 1% surcharge payment is due annually thereafter on the same date.
NOTE: No Surcharge shall be paid on any portion of the remediation funding source provided in the form of Self-Guarantee and/or a loan or grant.
A person who has established either a remediation trust fund, an environmental insurance policy or a line of credit may submit to the Department (to the ASSIGNED CASE MANAGER) once every three months a written request to use the remediation funding source to pay for the actual remediation costs, which includes the following information:
Within thirty (30) calendar days after the Department's receipt of the written request submitted, the Department will review the request and respond as follows:
The person required to establish a remediation funding source may at any time submit to the Department (to the ASSIGNED CASE MANAGER) a request to approve a reduction in the amount of the remediation funding source, along with a revised remediation cost estimate.
The place of business or real property at which such business is conducted, has a subject North American Industry Classification System (NAICS) code as listed in N.J.A.C. 7:26 B - Appendix C subject to the specified exceptions and limitations. Appendix C of N.J.A.C. 7:26B can also be found at http://www.state.nj.us/dep/srp/regs/isra/isra_c.htm
An applicable transaction (change in ownership or cessation of operation), as specified in ISRA;
Operations of an industrial establishment must have been conducted after December 31, 1983; and
Hazardous substances or hazardous wastes were on-site. For small quantities of hazardous substances, refer to the DeMinimis Quantity Exemption section of ISRA, N.J.S.A. 13:1K-9.7.
The ISRA subject North American Industry Classification System (NAICS) codes are listed in N.J.A.C. 7:26 B - Appendix C subject to the specified exceptions and limitations. Appendix C of N.J.A.C. 7:26B can also be found at http://www.nj.gov/dep/srp/regs/isra/isra_c.htm If a business does not have an applicable NAICS, then it is not subject to ISRA.
To receive a timely review, a complete application is necessary. However, as long as a complete and detailed description of on-site operations is included in Section G of the Application for an Applicability Determination, a review can be completed. Be advised that this may cause a delay in the process of the application. The NAICS can be determined by referencing the North American Industry Classification System (NAICS) codes dated and published in 2002 by the Executive Office of the President of the United States, Office of Management and Budget, ISBN 0-934213-87-9 NTIS PB2002-502024, subject to the specified exceptions and limitations. The NAICS manual should be available in local libraries.
Mortgage bankers, attorneys and purchasers who are concerned with possible applications of ISRA often require sellers of properties or businesses to demonstrate that pending transactions are not subject to ISRA. The issuing of applicability determinations or letters of non-applicability is not a statutory requirement, but a service NJDEP provides for a fee. Applications should not be submitted for properties that are clearly not subject to ISRA such as residential properties, farms and retail stores. The ISRA Applicability application discusses this further. Be advised that a determination of ISRA inapplicability does not constitute any finding by the NJDEP as to the current site condition or existence or nonexistence of any hazards to the environment at the property.
Approximately 95 percent of applications to the NJDEP receive Letters of Non-Applicability, while the remaining requests are determined to be subject to ISRA. All applicability determinations are based on the review of the required application.
It takes an average of 5 days after the NJDEP receives a complete application for transactions or situations that are clearly not subject and an average of 14 days for more complex reviews, which may require site inspections.
A LNA is good as long as the information certified to in the application is still valid.
No. No one is required to apply for a LNA. If someone such as a buyer or banker requires a LNA, the NJDEP is able to provide the service through the LNA process
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.
Usually cases are assigned to a case manager within a few days. If the case has not been assigned to a case manager, you can speak to the supervisor or a staff member in the BRMINCA at (609) 633-0708.
That will depend on the complexity of the legal or environmental issues at a particular site. An applicant can work directly with the NJDEP staff before hiring an attorney or environmental consultant. However, in many cases, the issues can become very technical and the owner or operator must have someone knowledgeable in environmental affairs to assist them.
No, the NJDEP does not make recommendations on environmental consultants. The complexity of the remediation should drive a person's decision for an environmental consultant. You may refer to the NJDEP guide for Choosing an Environmental Consultant for Site Remediation.
That again will depend on the complexity of a particular site. However, the transaction may proceed earlier by executing a Remediation Agreement, which is handled by the BRMINCA. In addition, the Voluntary Cleanup Program, overseen by the BRMINCA (609) 633-0708 provides parties with the opportunity to obtain approvals prior to triggering ISRA. Once approvals have been granted the owner or operator could then proceed through with an expedited review process. If an owner or operator waits for a triggering event and the site needs little or no sampling, it takes an average of four months to complete the case. On the other hand, if the site requires extensive sampling to determine the nature and extent of any contamination and the possible development of a RAW, it could take a year or more to complete the remediation.
If an industrial establishment is not subject to ISRA or a triggering event did not yet occur and a person wants to conduct sampling and/or remediate a site with NJDEP oversight, the person may enter into a Memorandum of Agreement (MOA) under the Voluntary Cleanup Program. More information on the Voluntary Cleanup Program can be obtained by calling (609) 633-0708.
ISRA allows owners and operators to conduct their PA/SI/RI without NJDEP pre-approval of plans provided that the NJDEP's Technical Requirements for Site Remediation, N.J.A.C. 7:26E and an approved schedule is followed. An owner or operator of an industrial establishment may also implement a soil remedial action at an industrial establishment without prior NJDEP approval of a soil Remedial Action Workplan when the remedial action can reasonably be expected to be completed pursuant to standards, criteria, and time schedules established by the NJDEP, within exceed five years from the commencement of the implementation of the remedial action.
An owner or operator of an industrial establishment may not implement a remedial action involving the remediation of ground water or surface water without the prior approval by the NJDEP of a Remedial Action Workplan.
It may be beneficial to investigate suspected areas and perform limited cleanups for relatively minor situations prior to a formal ISRA submission. The regulated community must, however, be aware that discovery of any contamination must be immediately reported to state and local officials. The NJDEP 24-hour hotline is 1-877-WARNDEP.
The Guidance Document for the Remediation of Contaminated Soils; Groundwater Quality Standards (N.J.A.C. 7:9-6); and the Technical Requirements for Site Remediation (N.J.A.C. 7:26E) are all available to assist in the evaluation of areas of potential environmental concern. These and many other guidance documents and publications are available via NJDEP's web site.
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. For more information please visit the NJDEP Site Remediation Program Web page at http://www.state.nj.us/dep/srp.
There are three general terms of a Remediation Agreement:
Applications can be filed at any time during the case, but prior to the completion of the standard ISRA administrative process.
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.
When applying for any ISRA approval including an expedited review, limited site review, or remediation in progress waiver, the owner or operator must certify that a PA/SI has been completed. Any area where hazardous substances are currently or were used or stored is considered an area of concern under ISRA and the Technical Requirements for Site Remediation. For non-regulated UST's, the SI can only be completed if sampling is performed around the UST pursuant to the Technical Regulations for Site Remediation, N.J.A.C. 7:26E.
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