Determine whether the Site is an "Industrial Establishment"
Determine the site's North American Industrial Classification System code (the successor to the Standard Industrial Classification ("SIC")). If a party knows the NAICS code for a particular facility, it can quickly determine with relative ease the applicability of ISRA with little or no assistance from NJDEP by comparing the Site's code with those covered by the ISRA regulations. If it is not included in the regulations as a covered Site, ISRA does not apply.
If the NAICS code is covered by ISRA, what next?
Certain LNAs were issued for those sites that qualified for a "deminimis quantity exemption" under ISRA. These types of LNAs simply quantified the amount of hazardous substances present at a site and then compared that amount to a defined limit. If the amount of the hazardous substance was below that limit, the site is exempt from ISRA.
What if the Site has more than Deminimis Quantities of a Hazardous Substance?
Then then the party must determine whether a particular transaction constitutes a "transfer of ownership" or "closing of operations" which would then trigger the need for ISRA review. This is more complex and will be difficult to determine because a financial analysis of the transaction is often required and/or an analysis of the parties to the transaction before and after the deal. Parties attempting to analyze these types of transactions on their own will need to contact a lawyer because the determination is highly subjective and NJDEP provides little or no guidance for how to determine when ISRA is transactionally triggered.
What if ISRA is applicable to the Site?
Your best path forward is to contact an environmental transactional lawyer for advice on how to comply with the ISRA statute and regulations.
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