As of April 30, 2008, NJDEP’s Site Remediation Program will no longer provide applicability determinations regarding the Industrial Site Recovery Act. While the Department had recently indicated that it would drastically scale back the applicability determination process, many practitioners expected that a limited applicability review for “close cases” involving complex transactions would remain in place. According to a telephone conversation with John Gradwohl, a supervisor in the Site Remediation program at NJDEP, there are no exceptions to the new policy, even for complex transactions. The supervisor of the Applicability Unit, Jim Bono, also confirmed current NJDEP policy via e-mail.
Any applications received after April 30, 2008, will be returned unprocessed. The application for a letter of non-applicability (LNA) is no longer available at the ISRA form page on the NJDEP website.
This policy decision will likely create a stir among transactional lawyers. In some instances, it may complicate or delay real estate deals going forward, since many form real estate contracts require that a seller obtain a LNA prior to closing and many existing leases undoubtedly require that upon termination of the lease, a tenant must apply for and receive a LNA or comply with ISRA.
For a link to the NJDEP statement, click here.