With the struggles many have faced during the COVID-19 pandemic, some businesses may have closed or reduced their operations. Businesses that are considered an “Industrial Establishment” will need to evaluate whether their operational status has triggered NJ’s Industrial Site Recovery Act (ISRA).
It is often assumed that Industrial Establishments are enterprises involved with heavy manufacturing; however, it can be an operation as benign as warehousing. A business may need to comply with the investigation and remediation requirements of ISRA if it has a North American Industry Classification System (NAICS) code that is listed in Appendix C of the ISRA rule, has operated on or after December 31, 1983, and generates, stores, transports, or disposes of hazardous substances or hazardous wastes.
For those affected by the pandemic, ISRA will not be triggered for applicable operators if their cessation is less than two years or if their cessation results in less than a 90% long term or permanent reduction in the total value of product output. Product output can be defined as at least a 90% reduction in the number of employees or at least a 90% reduction in the area of operations.
If a business is an Industrial Establishment and plans on proceeding with a transaction including but not limited to the sale of property, sale of business, or cessation of operations, the business must complete an investigation unless they qualify for an exemption.
Both the owner of a property and the operator are strictly liable to comply with the rule and the assessment must include all of the block(s) and lot(s) upon which the business is conducted including contiguous lots and blocks which are vacant land. Implications include the assessment of non-operational related discharges including site wide historic fill and former agriculture. For properties with two or more leased spaces, the industrial establishment includes the leasehold of the ISRA subject tenant, as well as any areas that are utilized by that business.
Contact JMS if you have questions regarding your potential obligations related to ISRA. Our staff of Licensed Site Remediation Professionals (LSRPs) and environmental scientists are experienced in ISRA investigations and are here to support your transaction in a timely and cost-effective manner.