strategic very important aerials for military purposes the chrome chemicals that were the result of the processing of chrome or were used in such defense items as armor on tanks aircraft parts camouflage tie for clothing tending for soldiers boots there's no question so let me ask so we i think we have a pretty good grip on the fundamental facts here should we focus our attention on a control of control of the enterprise or the control more specifically of the release of contaminants the the process itself was inherently the luminous producer of hazardous waste  war was brought in by the government to natural product refining it was process is your honor where for leeching process to extract chrome that liquid went in when it was crystallized and repackaged to be i was asking in this type of situation where we trying to decide if the us government or if a parent corporation should be responsible is it control of the subsidiary or is it control of the subsidiaries disposal methods those are the poor judges that and what i was getting to is that this is really not a question of disposal because the whole process was one of hazardous waste generation even during the process of and natural products refining and leached into the soil that's the very nature of the process comin leach eight chrome waste and the governor as the government has stated in  joint exhibit five hundred and ninety one dollars fourteen cents chrome meeting they were dealing with the issue of whether the production how the production can change by not reworking the call more than once because that would create a faster turnaround of better quality chrome chemicals down the governor and up with more waste correct and more toxic waste and in that document the government recognized two things it was the practice of all these plants to store dispose of this waste on site and in fact there's a reference in dialogue in that same document with the government says the question was posed by a different person in the meeting how about answering this question for for us you make the argument best foods decision of the united states supreme court four years later right how do you make an argument out as an argument survive it seems like best food intervene here and at best food controls and we seem have set a controlled liska you do your honor and quite frankly if you do say you do decide that the best food language is what applies here the result would be the same that p p g is asking someone said let's put on this truck and bring it here or let's let's put this into a lagoon in the lower forty it went out the door there were piles that you saw that from the exhibits if you move those piles off site you would need if you use fourteen cubic yard truck you would need sixteen thousand dump trucks to remove the two largest piles that is the evidence all that clear you know you're what you're asking for here is you want to overturn the district court's grant of summary judgment to the government and you be the government did to control this facility let's be very clear history the court has nothing to hide in a district court says there are some distinctions between the level of control that the government had here as opposed to the will materials to f m c the world materials are supplied by the government itself here not some rd party chemical company they cornered the market on the war and the question is control let's be very clear if there was if the n actually finding said we don't want your to do to comply with your orders your nine or ten items what would happen there would be there is no chrome in the universe for natural products refining to conduct its operations and sell to non governmental defense contractors so when you talk about control there would be no national country funny that did the district court take the position for and even consider your argument that the entire enterprise is toxic and could separate one from the other would certainly direct or conduct operations there would be no operations without the comb being supplied by the government and if they have natural products refining the not complied with those orders including the process  weren't there at the time from a day to day from day to day they get in the government didn't have somebody on site the jersey city running these operations they didn't need to judge because they've been running since new manufacturing process quickly here they did not have to be there as i say was a mature science it was a mature process they were there's textbooks that existed in the early one thousand nine hundred on how to process chrome or into you only have to visit it once to see those piles it again it wasn't to look good in the lower forty they were seven stories high george and that they had they knew that that was the chrome waste no question about it they knew contain an operator someone who directs manages or conducts i'm going to quote operations specifically related to pollution that is operations having to do with the leakage or disposal of hazardous waste or decisions about compliance with environmental regulations and what do you make of councils argument that it's one of the same you really can't separate control from the control generally versus control over toxic leakage well i think st of all that's an argument that we haven't heard hazardous waste which just did back if you control in the manufacturing process you're in some ways controlling the release of toxins well because then you have to make decisions about what to do with the hazardous waste but it's the decisions station the representative on site who essentially acted as c e o of the facility and had decisions about all matters of the facility and couldn't presumably waste disposal and i should add that f m c is really an hou i mean there isn't a different standard for operator i don't know if it's a governmental entity or a non governmental ip so the best food standards applies even and in this sort of case now after five years of discovery p what i'm saying is you have what you have to sit control under best goods is the decisions about what to do with the hazardous waste right and here the united states made no decisions with respect but that is not a recommendation that after products well if if if p p not if an art whatever n r c had had not adopted that recommendation the government would have taken over the facility right now now it was merely a recommendation on her recommendation that you pay your taxes no i mean it's a recommendation and we know that apple products didn't follow the recommendation and nothing happened in apple products because i did follow the products said we were only going to switch if the government purchased the resulting waste sludge and the evidence in the record says that shows that the government expressly refused to buy the way sludge and thus nothing ever became  evidence of a long term change in the manufacturing process and in fact in one thousand and forty five the evidence the record shows that p p g didn't use all the or allocated to it ok so there is insufficient evidence to really understand what was well we have at this time a judgment stage as p g must submit evidence showing there is a genuine dispute of material fact and p g fail because all of this evidence relates to this sort of general control theory under the under  operator we know is liable only for participation in certain activities and the supreme court said those activities are those related to waste disposal right an operator is not liable if it controls the marketing at a surplus focus on environmental contamination that an operator has to be limited to those persons who direct manage or conduct operations specifically related to pollution and had responsibility for those to hear you're trying to say that since bill we know here that the government wasn't the owner of the site you know everybody agrees that the question is whether you're an operator but aren't you stretching what bestfoods said applied to the parent to you as an operator and therefore making it as a distinction in your argument between what's covered who how you covered the two under circuit and i don't see the distinction in the definitions well that's true that the definition defines operator as someone who is operating and that's not particularly helpful right that was why the supreme court took a pass moods right and in the context of deciding whether a parent corporation could be directly liable of an operator it the supreme court limited the term operator to those that control pollution related matters a parent is different from the government coming in and imposing its will on them on a company isn't well right but there's only one the circuit does not distinguish between non governmental operators and governmental operators there's only one operator and an operative distinction true but again the supreme court said that want to operate a facility means to conduct  through after a massive operation specifically related to pollution and despite five years of discovery p g uncovers not one shred of evidence that the united states conducted directed or managed operations at this natural products the facility related to pollution you don't raise sovereign immunity at all we do not and why is that particularly because this claim involves government activities during the time of war on the two wars well i think  correct and simon immunity in effect is connected with the definition of operator and whether the government was an operator or not an operator and if you're claiming the two specifically i think you'd see back there that there was no waiver of sovereign immunity and that the government was not an operator based on the facts of the case and i think you and your dissenting colleagues were proven correct when the supreme relates to its s f m c theory of general control so the importance of chromium to the wars is immaterial under bestfoods the government's activities regulating the wartime economy such as price controls or allocation controls or distribution  just a few things what the government does is two things one in terms of their activities like one it takes this position that in the district court adopted this that these items individually don't add up to control a toll to tell you the circumstances do nd point these were not voluntarily complied with there would be no n p r if they didn't get called and they wouldn't get called or if they didn't listen to the government seeking under bestfoods because of the government's involvement with this particular type of process and a minimum i think that i would have loved to have the opportunity to present moral argument for the trial and present evidence experts testify about documents and process