almost in this case presents the issue as to whether the defendants transactions and selling the dross and slack throughout the pacific constitute the arrangement of treatment and disposal hazardous waste in determining that issue the ninth circuit considers that question in the context first of circ was broadly medial objectives one contaminated sites we probably clean and two that the sites be cleaned by those that had some connection to the contamination as compared to those that did have connection to the i mean there are lots of people that have some connection that are held liable i understand yet the thrust of your argument is read the stager liberally so forth but there is still some content actually that has to be satisfied that's correct your honor the statute ninety zero three requires essentially that the party the responsible party by contract by an agreement or otherwise arrange for the treatment or disposal o now circle does not define what the term arranged means but this court and other circuits have interpreted that term romney in again in order to fluctuate the the intent and bro is enough to impose liability on an arranger in burlington we had a situation where the defendant shell essentially was selling a legitimate product  here we have a situation where the defendants generated by products as a result of their manufacturing operations none of the defendants in this case you're on are created intentionally  by products that were sold to out at the civic or were surprised by the by product being there i mean gee we've got left over from our first run through the smelter that they know is going to happen that's correct all these defendants understood the operations they were sophisticated parties they are sophisticated parties they're disturbed that as a result of creating these products in the case of our star and comical actually our star does not sell any melting facility they were in the business of selling lead as a result of that business manufacturing extracting lead from second to meritorious they created a by product called slack but that contain or one of one or both which contain lead but need a further step to remove the lead correct yes your honor the by products containing that and the parties all recognize that's their business melted bike company and that process creates andros correct and then and then that's like and dress can be used again you can take more light out of it and  whether it go through one two three five or ten rhys melting process is there is waste material left over that's correct and all of these different it's understood that you want to and so that's i'm right on the fact that so so were treated and released into the environment this case also is similar to the cadillac fairview case you are in that case again this court said that the rubber companies removal of contaminants in a chemical known as spiral which was used to make rubber this court indicated that even though the rubber companies were selling  circle what about the market value argument that the defendants are making here that day that distinguishes this case from cattle like barry yes your honor the material had market value in the sense that the price p pound basis was determined on the market value of luck not the market value of the droste or market value of slag it was dependent on the market value of left but when you actually look at the it's a nominal sum it varied from two naff cents to twelve cents per pound versus the twenty six or thirty two cents per pound of leather so you have two different very different types of material beyond the characterization that these materials are the sale of a useful product we need to look at the arrangements to selves did they constitute these transactions even though they were sold and the defendant ranges received money for them didn't constitute the arrangement for the treatment or disposal of hazardous waste and here we believe that the record establishes the owners that yes all these defendants were not in the business of selling these  was sponsibility to make sure that those hazardous waste were properly managed now ours are back i'll say well we sold rerun slack it's important i think you want to have a good basic understanding as to the types of materials that we dealing with now i asked the representative forest park america what is the second rerun slack they couldn't tell me but they did a disposable slack that's what they refer to meaning that they have a responsibility to dispose of that material as a hazardous waste why has risks because even though these defendants  about the other sixty or so percent of the material who's responsible for making sure that material was properly married well the defendants were responsible but in this case they chose not to accept that responsibility the slag was dumped from the bends onto the ground and alcoa civic employees work fish through the slag that's been dumped on the ground and then we pick our credit pick up of the metal parts of the slag and pass it in b it could be put again into the furnace and also where that's lag was dumped onto the grounds they use the pillow to pick up the slack and put it in an uncovered bins this was a very messy very gross process it wasn't a clean operation and hence why we have contamination at the site and i think the court recognized and indicated specifically in in the february two thousand specific purchased material and try to extract material specifically lead from from from these waste by products and what it could not basically use as we find that it disposed the parties understood this process and especially those parties that were in the smelting facility business office of the district court distinguished this content now alco pacific was a was in the business of recycling and manufacturing they metals they would take scrap and aisle they would put it through their furnace and ultimately they would create products like a sailboat is at the back end of the process we don't know precisely how much lead that has in it or if it has any of that so when you say that it has thirty percent lead going in there's no testimony that all thirty percent of that lead didn't come out there were they were like the little pieces of shale that was the high lead content it was a different color it was grayish the pieces were like chance that were two to four inches and it was gratian color that compares to the waist take that dry skin flag and dump it into their smelter they verified either through the history with the companies that they were dealing with or through independent laboratory testing that had a sufficient percentage of health metals that they could use  you know sort of second row just first up was get the which you could on the first melting and then you go out and you say it was left over to alcohol and alcohol goes through that second step and then elko decides to go ahead and it sells off to what with just laugh we should be the functional equivalent of what it did get is now going off to a third party so we under your analysis the only party that would be liable would be number three in the chain that alcoa would be off the hook because it was creating a usable product because or somebody down the line who could call had still had a high lead content about thirty percent say that material had value to it and it was something that they could sell they themselves would not have had to dispose of that as a waste and they went i mean batteries hold batteries were sold to the to the ultimate recycler and before that the lead plates were all that had value of those patterns and before the lead plates could be used the batteries rock they don't have to do anything to that before they put it into their manufacturing process so in that regard it was like any other raw material in tell us to get the raw material out you had to do something before you could even use it but that i'm not sure i understand that is one way of looking at it isn't good tell us you have something left over which was the casings casings didn't have any commercial value and in the case of the dross in the slide that sold alco at some point left over waste are you saying there's no waste here and there's nothing in the record suggests that there's any waste here as a result of alco smelting of the dross and slag with your clients created you know what i'm saying is that the material that used by alcoa is in essence up like a raw material that was different than the batteries you couldn't throw the whole battery into the smelter the way there is waste at the end of the product at the end of the manufacturing cycle with respect to  whether something somebody is an arranger it first has to be a waste so that's the question that the district court judge dressed in this case and really if you look at this case can and compare that to the five other parties could not be used it wasn't enough to be smelt and so they had to do something with that so they couldn't use that there was also some slight not ultimately the court was unable to make it terminations because the court  you look at the commercial reality of the transaction you look at the intent of the party and you look at the market value of the material and this court said that and they didn't have enough information in the record to ascertain what the market value of the material was in a timing right there yes and ask why is this a summary judgement case if you have to look at all of those things couldn't a finder of fact look at those things and look at the intent of the parties and and rule in effect factually the other way say that well we determined that the facts here suggest that the intent of the parties was to dispose of this waste and as a result the useful product exception does not apply because in this case there was absolutely no evidence in the record to controvert the factors that the court evaluated so there was no evidence for example the the state proffered no evidence in the record of what the market value that the market value of the lead and the other metals that were purchased by apple pacific was anything less than what was paid for it i mean they they argue in their paper market values is just arithmetic moved to the other women and that's where it gets to be a little more difficult to say what the intent of the parties was the most let out of that and then got it back so the court looked at all those factors and said there was no intent as in the other part as in the other cases to get rid of it they would have used it themselves what tells us that a jury couldn't have looked at the factors or looked at the evidence submitted regardless factors and decide you know what they really were trying to do here was to get rid of the stuff they knew they had to treat specially and so they passed it down to somebody else and i'm not so sure in summary judgment standard that a jury couldn't reach that conclusion and if they could reach that conclusion is the district court's order vulnerable to to not being sustained because it is a summary judgment well i like i said in this case i think the district court has to look at the record the district cour found and even to look at the commercial realities of the transaction which is how the court tried to judge the intent and the court found that there was there was no evidence on the record that a jury would have been able to find in this case for opinion order basically sets that out the district court said that they looked at the price that was paid they looked at the fact that there was an established commodities market and they looked at the fact that unlike in  asarco there was no desperate need to get rid of the material they looked at the unrefuted evidence as the court put it into a factual inquiry into the underlying motivation of the parts that and as the court mentioned it record there was no intent to get rid of this i don't think on the facts of this case that a reasonable jury could find that there was an intent to get rid of this these were companies that were in the business of using the adults that had value and the have sold this to other parties where they would have reused it themselves so i don't say can find an intent under those facts that there that they would have had they could have gotten rid of it or it would have been a waste of sort of you and your colleagues t that's all thank you very much wire chicken wire that you know farmers would use is a very thin kind of where so there's a process you go through and one of the processes is and they don't do this anymore here in california but in other other of their factories you run it through a  itself i mean that's not that's not the case and that's not why they created what you have though it was a product that they end up creating that has value and that it can be sold and why in the world would we want to have this product which has value thrown into the we send into recycler and that that smelter in his new faction process is it doesn't comply with all the requirements or ends up having occasional spills we're going to get stuck with that bill so here we have something that's valuable they when they came to this recycler he took the product the battery broke it open through the casings to the side the casings contaminated the soil the casings had absolutely no use to that recycling and basically the recycler was taking students that were being sold to do on the basis of you know what you're saying to be honest makes commercial sense to me but there is a line of authority in this circuit that suggests that if you're inevitably going to have some waste created by th occur you were controlling the transfer process you knew that when you transfer that useful product to the to the supplier that there were these spells that's not in the record clear there are no spills in the transfer process the liability under circle extends and this court in louisiana of vs asarco considered the issue whether or not slag which was considered to be a commercial product under washington state law of the land but what about the council's point though that if you have essentially leave them to the because they don't control what alco does with the material they sell a useful product think he was arguing the way to then react to the in the economic chain of events is not incurred that risk but instead just dumped materials that have a usable demonstrably usable value but because of the risk of contingent liability they're going to just not put it into the market absolutely not wrong or they had a choice they had a choice once it generated indicated no more slag was going on really didn't trust question let's try this again the point we understood being made by the fans with it if you put responsibility on these defendants for what happens at the subsequent site you're going to authorized disposal facility or if this the davis wire doesn't have the ability to process it again and get more out so what should they do should they send it straight to the hazardous waste disposal site or should they give it to somebody else that can squeeze value out of it they are required under rick ross another federal law to manage that material as a hazardous waste so you think they should throw it away even though there is value to be extracted by somebody else no your honor i'm not saying that they're required to throw it away they