Hello Andre, AndrewW & List
In the spirit of PN's past post about never being afraid of asking basic questions on the List.
Some thoughts/discussion-points to try and illuminate/understand the path through the StatG quagmire of apportionment of liability for remediation costs for Class B.
For a hypothetical case, of course.
Am I right in thinking that the Enforcing Authority (EnfA) should not look for Class B for 'linkages that relate solely to the pollution of controlled waters.' 7.3(a). If no Class A, then these immediately become Orphan Linkages.
And Class B are exempted from liability arising from the escape of a contaminant from one piece of land to other land. 7.8(b)
These two clauses should immediately reduce the potential breadth of liability of Class B versus Class A.
For a leased site... Ignoring lease agreements that apportion Part 2A liability (which can be actually be disregarded by the EnfA in some circumstances, 7.30) ....
If there is no Class A identifiable, and a EnfA identifies current owner AND current leaseholder as Class B members of a liability group for a leased piece of land, then how does 7.78 (excluding no-rent and 'rack-rent' Class B) come into play for a leaseholder, notwithstanding 7.48. I'm a bit confused (its the weekend) about the meaning of rack-rent and what 7.78(b) is trying to say and what type of leaseholder it could apply to.
I found this ambiguous definition of Rack-Rent on UK'practicallaw.com :
"In modern usage, a rack rent is usually a rent that represents the full open market annual value of a holding, often simply called the market rent. Less frequently, a rack rent may also be "the maximum rent permitted by law", or an extortionate rent".
7.48 also describes how a lease/sublease for more than 21 years means that the lessee satisfies the Part 2A definition of “owner”. How does this come into play if the actual owner (Class B) can also be identified by the EnfA?. Does the actual owner then get excluded from the Class B liability group in favour of the lessee as the de-facto Part 2A 'owner'? And how does that interact with 7.48 ! Which trumps which?
.... It would seem advantageous from a Class B Part 2A liability standpoint to get a lease for less than 21 years!
Also the Six Exclusion Tests for Class A (7.38 to 7.61) are not directly replicated for Class B - which looks like that they should not be used for Class B?
7(e) provides exclusions tests for Class B group members. The guidance (7.76) clearly says that the 'The purpose of the test is to exclude from liability those who do not have an interest in the capital value of the land in question'.
So am I right to think that having a long lease (7.48) de-facto means you would have 'an interest in the capital value of the land in question'?
But fulfilling the requirements of 7.78 means that you would not? Again, how in practice do 7.78, 7.48 and 7(e) link together logically?
And lastly .... from a real-world practical standpoint, if it is a commercial use lease site, then for a Class B to be liable for remediation costs (which would most likely only be related to on-site HH linkages, as no controlled waters linkages or any off-site linkages for Class B), then the site would need pretty highly contaminated soils at surface or have significant indoor air impacts (e.g. benzene>WEL !) to get the site into Cat 1/2 (assuming no immediate harm) as commercial use GACs/C4SL set a high bar for 'inside' Cat 4, let alone getting past Cat 3.
Anybody know of examples of commercial-use sites getting determined on the basis of on-site HH linkages to site workers?
Chris Dainton
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