PART 4: General Considerations Relating to the Exclusion, Apportionment and Attribution Procedures
D.32 This Part sets out general guidance about the application of the exclusion, apportionment and attribution procedures set out in the rest of this Chapter. It is accordingly issued under both section 78F(6) and section 78F(7).
D.33 The enforcing authority should ensure that any person who might benefit from an exclusion, apportionment or attribution is aware of the guidance in this Chapter, so that they may make appropriate representations to the enforcing authority.
D.34 The enforcing authority should apply the tests for exclusion (in Parts 5 and 7) with respect to the members of each liability group. If a person, who would otherwise be an appropriate person to bear responsibility for a particular remediation action, has been excluded from the liability groups for all of the significant pollutant linkages to which that action is referable, he should be treated as not being an appropriate person in relation to that remediation action.
D.35 The financial circumstances of those concerned should have no bearing on the application of the procedures for exclusion, apportionment and attribution in this Chapter, except where the circumstances in paragraph D.85 below apply (the financial circumstances of those concerned are taken into account in the separate consideration under section 78P(2) on hardship and cost recovery). In particular, it should be irrelevant in the context of decisions on exclusion and apportionment:
(a) whether those concerned would benefit from any limitation on the recovery of costs under the provisions on hardship and cost recovery in section 78P(2); or
(b) whether those concerned would benefit from any insurance or other means of transferring their responsibilities to another person.
Information and Decisions
D.36 The enforcing authority should make reasonable endeavours to consult those who may be affected by any exclusion, apportionment or attribution. In all cases, however, it should seek to obtain only such information as it is reasonable to seek, having regard to:
(a) how the information might be obtained;
(b) the cost of obtaining the information for all parties involved; and
(c) the potential significance of the information for any decision.
D.37 The statutory guidance in this Chapter should be applied in the light of the circumstances as they appear to the enforcing authority on the basis of the evidence available to it at that time. The enforcing authority's judgements should be made on the basis of the balance of probabilities. The enforcing authority should take into account the information that it has acquired in the light of the guidance in the previous paragraph, but the burden of providing the authority with any further information needed to establish an exclusion or to influence an apportionment or attribution should rest on any person seeking such a benefit. The enforcing authority should consider any relevant information which has been provided by those potentially liable under these provisions. Where any such person provides such information, any other person who may be affected by an exclusion, apportionment or attribution based on that information should be given a reasonable opportunity to comment on that information before the determination is made.
Agreements on Liabilities
D.38 In any case where:
(a) two or more persons are appropriate persons and thus responsible for all or part of the costs of a remediation action;
(b) they agree, or have agreed, the basis on which they wish to divide that responsibility; and
(c) a copy of the agreement, is provided to the enforcing authority and none of the parties to the agreement informs the authority that it challenges the application of the agreement; the enforcing authority should generally make such determinations on exclusion, apportionment and attribution as are needed to give effect to this agreement, and should not apply the remainder of this guidance for exclusion, apportionment or attribution between the parties to the agreement. However, the enforcing authority should apply the guidance to determine any exclusions, apportionments or attributions between any or all of those parties and any other appropriate persons who are not parties to the agreement.
D.39 However, where giving effect to such an agreement would increase the share of the costs theoretically to be borne by a person who would benefit from a limitation on recovery of remediation costs under the provision on hardship in section 78P(2)(a) or under the guidance on cost recovery issued under section 78P(2)(b), the enforcing authority should disregard the agreement.
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