Legal Case Summary

We're ready for the first case. It's consolidation co-company versus Georgia power. Mr. Dara is it Dara? Dara? Good morning. Good morning. May the police report my name is Dan Dara. I represent a peasant and plaintiff consolidation co-company in this case Maybe real quickly before we get into the details of the case a little comment about what transformers do That might be helpful transformers are used as I'm sure you know to change the voltage and electric current Either stepping it down or stepping it up the essential component of The transformer is what called the core and the coil Core is composed of iron sheets that are bound together the coils are a primary coil and a secondary coil For the incoming voltage in the eye Whether it was useful I take it

. I'm sorry running. It's all going to the issue whether this was junk or whether it was used Yes, but in order to get to that issue I think to understand that The guts of the transformer or the core and coil if the core and coil are damaged sounds like what you give me is what I've just read in You brief that's what I was yeah, yeah, see you're out where we're going with this. He just want you move on to you. Right. Okay As is also indicated in the brief the appellance here and two other parties have spent now $78 million cleaning up of costfully 450,000 Won't you go to a legal argument? Okay? Our argument is on this appeal that Georgia powers Sail of its broken and obsolete transformers did include an arrangement for disposal of a hazardous substance that would subject it to liability the key words Savannah electric ones understand the record they were all working They were obviously in an order to be Well in order to be useful for anybody they had to be completely rebuilt They couldn't be used on anybody's system as they were because their voltages were not Configured properly in order to change those voltages they had to be taken those transformers Plugged them in turn them on and they will work might not have given you what you wanted but they would have worked That's a fair statement so what difference does it make if the ultimate customer needed to Reorient the voltage in Transform The ultimate customer well Whether you're talking about a broken transformer or an autopransformer In order to be usable it has to be reclaimed it has to be remade It goes right to the point the first factor in pneumo abax about whether a Materials reused entirely or whether it has to be reclaimed before it can be reused whether Find the drill down for the principles Sometimes we have to use hypothalamus to do that. Let's say with the Savannah electric ones They all worked and in theory Some other power company and Pakistan could have used them right away Wait a minute but The purchaser of them sent ten there but decided they could make more money if they kept ten here and We did the coils and sold them to somebody else But they're for some That under that scenario

. I don't think it makes a difference I do think it makes a difference if so so the answer then is if as they were sold They're usable anywhere in the world as they are than you lose That's what you answer was yes But usable as transformers as is Not Remade to be transformers to be to be used As I look at the Supreme Court cases on this and the element of intent That has been added by the Supreme Court into it is that you must indicate there was a intent on the part of Georgia power at the time that it sold these transformers to essentially dispose of the PCB this residual PCD because I understand the most part they drained it out right Do you read it that way? I read the Supreme Court? Burlington, Northern is saying that in order for the be liability the transaction has to include or the the sellers has to include and Intent not necessarily the intent to discard those PCBs So you can infer or is it to be Something that I think you have to bring forth to actually show I think I think that that resolved I think it I think the court indicated particularly by citing to this Cell of oil case that it could be determined from looking at circumstantial evidence It's not something where you have to have the seller admit. Yes. I intended to get rid of the PCBs by doing this Put it in putting it in the context of these transactions at the time these transactions occurred There were limitations on what Georgia power could do with Transformers depending upon what the PCB concentration was in those transformers They in Adopted a written policy to finding how they were going to Dispose their word not mine dispose of their obsolete and broken transformers and 1978 they changed that policy or amended that policy to say as part of Looking at how we're going to dispose of those transformers We're going to test the PCB Concentration and that will tell us what we can do this with clarity of the contamination It seems to me Congress change that statue had it spillage and leakage in it That a very small pot small amount of that PCB can do a lot of damages. That's pretty much absolutely We're talking drops. So we just yes this The site that we've cleaned up 450,000 tons of contaminated dirt a lot of contaminated dirt There wasn't a big dumping of oil on that site. It was drips and spills Resulting from the process of opening up the transformer pulling out the corn coil which is soaked in oil That drips people walk on it

. They drive high lifts over it. They take that out into the backyard The soil gets contaminated a little bit here a little bit there over time It's not a massive spill Let's say I've got a farm tractor And I decide I want to go and get another So I'm going to sell this It's got hydraulic bowl and it Regular oil is diesel And obviously I don't want to clean that tractor out with all that's in there because I'll have trouble selling it And I'd have to dispose of it. So I'm going to sell it And it might be used for farming lumber business construction But it's got hazardous substances in Cell the tractor And not a ranger Well, you may be an arranger, but you're not subject to liability because you probably qualify for the consumer product and consumer use exemption That's not consumer use in business You're using the product you're using it in your in your business. What if he what if he has a business and he's used five or six and he sells one one of the same scenario In fact that he wouldn't qualify for the consumer product exemption you sell it Well, you sell it for sold it for reuse is right right on your phone. Okay Am I an arranger? No because I'm entirely reusing the tractor As you sold it to me Okay Then you could be an arranger if there was high hazardous substance in the hydraulic oil and I don't know that there is because they're typically is not What if you drain the oil out of the tractor before it's given to them knowing that they may be some residual part in it Would that make any way? Well, I'd answer the question this way I mean one of the purposes of the environmental laws including circular is the hold people responsible for the hazardous substances that they use and profit from their use and to say that it's your responsibility When the use is no longer there that it's been used up there. What was the answer to his question answered it question is that um, I think if there's residual contamination in there and your way of getting rid of that residual contamination is to sell to somebody else that you're an arranger Oh some of these transformers the oil was drained from somewhere not Yes, but none were empty of oil they all had some at least residual oil in it because they get usable a transformer that has had All drained from it you simply just put oil back in it

. No What do you do you open it up and you take out the guts you Replace the corns the coils because the coils are this insulation and the coils are saturated with the oil the oil the oil The oil within them is like molasses. It's not like water. That's just some run out and dry up and so that insulation is saturated and impregnated with PCBs the inside of the casing the tank is coated with that oil For an employee's as part of rebuilding and repairing these things climbed inside those things with rags that used to But if these transformers were being sold new Sold new the person who sold them wouldn't be liable for any of this. No, that would not What are the person's cells that knowing that the oil or the PCBs have to be changed every 100,000 hours or something like that. Don't they present the exact same concerns you have I don't think that if you sell something that's brand new that will last or expected the last no No, you sell it knowing there's no question. You know those PCBs have to be at some point in the life They have to be replaced an oil change in a car

. Are you an arranger then? I don't think so then why is that any different than the hypothetical Judgment I think I think it's the timing in terms of if I'm selling it because now is the time that I have to get rid of those PCBs Well, Judge A. G's hypothetical he didn't wait to the last minute of life of the hydraulic oil because he knows He's gonna have to you know take a hit in the price So he does it halfway through the life because that suits his business schedule Is he is that change the scenario in your mind as to whose responsible us compared to a cell of a new product? I think that if part of his purpose of entering into the transaction includes an The dispose of a hazardous substance. He wants to dispose of the tractor He also wants to dispose of your hypothetical. No, no he is he just wants to sell the tractor He doesn't have any intent Only in ten he has is that the tractor has hydraulic fuel in it. I've had to have that That he has the hydraulic fuel in it. He's selling he wants to sell the tractor Right see is he is he's in more trouble than a seller of a new tractor knowing that at some point the person They sell the tractor to and if this says is judge A

. G. will have to change the hydraulic fluid and my in my view Yes, he's in more trouble than the seller of a brand new tractor. Thank you very much Thank you. But the real issue in that case would be whether the intent was to dispose of PCB The selling of the tractor selling of the transformers nothing wrong with doing that My friend of supreme court Northern case essentially what you have to establish if there's an intent to dispose of PCBs and to know There's residual PCB from your perspective. I would think it would be if Georgia power sells a transformer Nor in this PCB in it, but there is residual from the have a drain it or from ball itself Then the question is is this something that has to be redone and it redone it will there be spillage? Will there be leakage will there be that whole array of things that cover stuff about in the later enactment? I would I would agree with that except I would modify it that I have to show that the intent included The intent to get rid of those PCBs not that the sole intent was to get rid of those PCBs Thank you. Thank you

. Is to down Ginsburg Good morning your honor is morning. They have pleased the court might Ginsburg for PCS phosphate I want to be clear about one thing in particular 17 of the transformers the Georgia power sold to ward for full of oil One of them had 520 gallons of PCB oil containing 488 parts per million of PCBs Would that make them a ranger if they were fully operational and would immediately be put back to use without any change whatsoever? If they were if they could if that were the facts in the case It would not make them a ranger if they could be reused as they were The fact is that these trends being full of oil helps you from the perspective of showing That at least one of the purposes that is included in this would be the fact that that Georgia power wanted them to dispose of this PCB If it's a fully functional Transformer with the oil in it Whether you send it to Pakistan or you send it down to research triangle park It doesn't matter if it is operation with it doesn't make them a ranger does it? If the transformer was operation, I think Mr. Daird just agreed with that there's it's not an arrangement for the disposal But in fact these transformers were not operational That's what the facts in the underlying case in the under in the record show is that in fact these transformers were faulty they were obsolete they were scrapped There is there were there was Georgia power had a whole practice and a whole procedure for disposing of its useless transformers these were transformers that they had pulled off the lines either because they were faulty Well, let's say let's say 100 was just rounded off the cell 100 transporters and the purchaser of the transformers has a market in Victor country facts down at gas down at 50 over there Because they can use them right away because of the state of their electric systems But the other 50 they can't they have to be redone So when Georgia power sells them they don't know what they're going to do with the transporters Under that fact scenario are they an arranger and holer and part There's certainly an arranger in part because 50 of those transformers are faulty That was the these these transformers are coming off the line. They've been hit by electricity They failed and in order to make them usable they have to be rebuilt what Georgia why what if what if the cell or thought mistakenly but thought they were all usable somewhere as they were somewhere Then they wouldn't be responsible for anything they thought was usable as is correct under your theory If the facts were shown your honor that's what I said yeah Now that's interesting I would agree with you in that scenario if they thought that all of the transformers were usable As to each transform they thought was reusable in some way as it was Then they're not on arranger as to that transfer because they could be reused in the words of the answer is yes Because they could be reused in the words of the new my back's decision. They could be reused as is they didn't have to be reclaimed and reused And under that your answers yes But if they if that was just one thing they thought they could be reused but they also had the purpose If they also had the additional fact the purpose and intent to dispose of PCB Would that make them a rich? Under that scenario and that's the fact well if you add that to the facts that their intent was to rid themselves of PCB Transformers without concern about whether they could be reused or not The fact you're trying to establish here is that is not about selling it this equipment is the fact that there's intent on the part of Georgia Power to dispose of this PCB that they've got they know they got to get rid of this thing So they drain it out and they know there's some residual in it and they sell a transformer to A repair shop or to speak us for someone who a middle person who's then going to resell it and and I just heard your Your co-counsel say if this thing is drained is got to be broken down now. I don't know if that's that's going to be held up on other side And not but that's what he said

. No, that's exactly true. I've got to be broken down There's that spillage in that leakage and that can happen and then happen in this case once you cut the transformer open You've got to rebuild it and these transformers had to be rebuilt I mean the facts of the case are that Georgia power was a sophisticated user of transformers. I mean the electrical power utility company that they knew as much about transformers Anybody and that they were ridding themselves of these obsolete transformers which had PCBs in them if they could you Under the thunder that scenario isn't any seller of used equipment Anywhere going to be an arranger because even though there The main motivation is to sell equipment get what return they can You can almost assume that every piece of industrial farm construction Landscape equipment has some sort of a hazardous substance in it and certainly no seller of it is going to Want to keep the hazardous substance When they sell a equipment So What color of used equipment is not an arranger? A seller of used equipment that can be used in the condition of which it's sold is not an arranger But what but what part of the reason why if there was a memo they said these are still usable as selling quick Or they still have a year left on them because God knows we don't want to deal with PCBs at the end of year was all they did an arranger? I think they are I think if you look at the It doesn't turn on usability then and your mind goes back to intent goes back to intent and then this Quart has said in new moevex that no why wouldn't that apply to any person selling Some used item can you not could you not reasonably infer that at least as your Co-Council said a he said and intent not the intent he stressed two three times So there's any intent at all to deal with the problem of PCBs No matter what else Every use sale would become An arranger would it's gonna depend on the subject I agree with you. It's gonna depend on the dependent. I'm sorry Take the facts as I gave him to you. No, I'm not arguing with the fact what I'm saying is it depends There's another fact we need to know which is what is the sophistication of the person who's making the arrangement who's making the sell Sophisticated enough to know they're gonna have a problem on the right exactly and if that's the case and they're doing it in order to Arrains boarding to northern says if a purpose of the transaction is to arrange for the disposal Doesn't that give absolute Forverse incentives to try to be efficient and salvage and reuse everything Doesn't that lead to you might as well go ahead and throw away everything you have no matter if it has any useful life You better go and buy something new because you're gonna have other liabilities if you sell it up Yeah, I don't think so

. I think the answer is that it's better to make sure that when you Dispose of something or sell something that's got hazardous substance in it But you have to make sure that the person you're selling it to you manage those have to do it either way though You have to do it if you sold it yourself if you sold I mean if you did it yourself or you sold to somebody else So if you get something if you buy something that has an environmental potential environmental concern You're not getting off the hood. You're not getting off the hood. It isn't that the right answer Well, that's not the right answer That you ought to be looking for this what was the intent of Congress in passing circle When it's right this is a material where a drop of two can cause tremendous damage It's a very harsh stash satches. There's no question about it And the courts have interpreted differently over over time But but the bottom line is if you have an intent To get rid of PCB couple with the fact you know that the person you're selling to is going to break it down And then it can get into the soil then maybe that's where you ought to be going with this argument rather than trying to give your personal opinion as to Whether this is a bad thing or I think Congress said if you're going to sell a product that has a hazardous substance in it You need to make sure the person to whom you're selling it is going to manage it properly So if you dispose of it your honor the way you suggested and you dispose of it in a improper way To somebody who's not a certified landfill and doesn't have all the precautions. You're gonna have a liability there too Thank you easy service. I did thank you

. Thank you very much. Serine Hart Thank you honor made please the court Dan Reinhardt my partner Jamie Tario for Georgia Power Company We we do know judge win that not one drop of oil that they're talking about came from Georgia power companies transformers because there's no evidence in the record that Georgia power companies transformers We're leaking which gets to the main point and that is the intent of Georgia power company It is not enough That's not necessary. I mean no, it's not you are sending because what you're dealing with is Duke power and all these other power companies has pulled together And as I understand I mean this is being done that the intent here is to make sure the taxpayers don't have to pay this for this massive cleanup in the business of of of of trying to get rid of this PCB and and so the question of whether they have to actually show That you're a transformers Leite or Is that relevant well they have to show the condition of the transformer and one of you called it scrap Did you oh we propalled at any number of things you would call a transformer scrap call it jump and yet you say Is usually absolutely and we know from the testimony just drained of oil But which I understand somewhere right yes, you're on is that usable Well, it can be yes, but to make it usable do you have to break it down and do things to it or you know Just put some oil in it and and crank it up. I believe you can put just put oil in it. There's no answer It is it depends on the transformer your honor look The issue it depends on Georgia power. I'm trying to know it And then 10th in selling these transformers to this award company this transformer repair type plays If if all if it's like the tractor all you got to do is just For some oil in it and it keeps going that's one thing But if these coils have this really fixed stuff on it and you know there's PCB in there So I'm not sure you can just put oil in it once you take it out Without cleaning it or doing something funny actually that do you have to clean it Once it has been drained and when you reuse it can you just put oil on top of what's in there Well, must you go in and get rid of that PCB in it well I believe it depends on whether the transformer is Operable if you just put oil in it depends transformer to transform But the issue your honor I'm gonna turn it loose in a second I do want to know that answer because I think that's important because because if if all you that do if if the if if you're allowed Once it's been drained to just pour more oil in on top of seeing this already contaminated with PCB Then that's one thing, but if you if it if it's pretty clear you got to break that down and and redo those coils That's a different answer Respectfully your honor. I don't think that that's the question. I think the question goes well that is question it is it is Certainly and my question is not trying to get into the question of whether the oil is draining or it is the intent as a Supreme Court said in the Northern case of Georgia Southern It's in in in in terms of selling these that's right Well, the the issue is did Georgia power intend to dispose and does that happen and be the Soul intent well, there can be mixed motives, but there have to be evidence to support it is a in and intent no well efficient no No, you they can't that if they got a if the primary purpose is to sell an operable piece of equipment but they also intend to get rid of PCB that's not enough. Well, no, no you look anytime you sell anything you intend to get rid of it So the answer my question is no that's not enough. That's for exactly right. No, that's not enough And and one of the reasons you know not that that is not enough is that you have to look to the legitimacy of the sale here I mean that determines whether there is a mixed motive if you look at the general electric case for example where they sold hazardous substances to some to one individual and they sold it on a idiosyncratic basis and sometimes they got paid and sometimes they didn't that indicates mixed motive here We have a situation where you have an active used transformer market Ward is in the used transformer business. You can't be in the used transformer business without used transformers Georgia power cup had surplus used transformers ward needed and wanted them and Georgia power sold them on a competitive basis Sometimes ward bid you were sometimes pointed there was no PCB in them and I think after at some point in time They stopped putting this PC and be in them well So you don't have a problem those the ones with the PCB that we have the problem Correct your honor, but you have to have the intent to dispose of it and when look at a competitive bid process The legitimacy of the sale if you look at these cases look new Mo Abacks this quartz decision If you were going to redo ball bearings you you had slag which was loaded with hazardous metals if you look at At the seventh circuit just recently when you sell broke in the NCR case to a mill recycler That paper company absolutely categorically unequivocally knows that when it sells to a recycler The the broke gets broken into two parts one reusable for paper the other Uh, PCB contaminated and it's going to have to be disposed The issue is this if you look at new Mo Abacks if you look at the seventh circuit What you what you see is that the responsibility for disposal in in the case of a legitimate sale Lies with the processor It lies with wool it lies with the ball bearing people who make new ball bearings It lies with the paper recycler It does not lie and that's with the seller and that's why me give you three scenarios Okay, first is Georgia power has a transformer and by the way if I remember the record correctly Another of the of these 101 maybe 87 or 88 of them still under Georgia powers Guidelines had much more usable life left in them

. I don't think that that's the question. I think the question goes well that is question it is it is Certainly and my question is not trying to get into the question of whether the oil is draining or it is the intent as a Supreme Court said in the Northern case of Georgia Southern It's in in in in terms of selling these that's right Well, the the issue is did Georgia power intend to dispose and does that happen and be the Soul intent well, there can be mixed motives, but there have to be evidence to support it is a in and intent no well efficient no No, you they can't that if they got a if the primary purpose is to sell an operable piece of equipment but they also intend to get rid of PCB that's not enough. Well, no, no you look anytime you sell anything you intend to get rid of it So the answer my question is no that's not enough. That's for exactly right. No, that's not enough And and one of the reasons you know not that that is not enough is that you have to look to the legitimacy of the sale here I mean that determines whether there is a mixed motive if you look at the general electric case for example where they sold hazardous substances to some to one individual and they sold it on a idiosyncratic basis and sometimes they got paid and sometimes they didn't that indicates mixed motive here We have a situation where you have an active used transformer market Ward is in the used transformer business. You can't be in the used transformer business without used transformers Georgia power cup had surplus used transformers ward needed and wanted them and Georgia power sold them on a competitive basis Sometimes ward bid you were sometimes pointed there was no PCB in them and I think after at some point in time They stopped putting this PC and be in them well So you don't have a problem those the ones with the PCB that we have the problem Correct your honor, but you have to have the intent to dispose of it and when look at a competitive bid process The legitimacy of the sale if you look at these cases look new Mo Abacks this quartz decision If you were going to redo ball bearings you you had slag which was loaded with hazardous metals if you look at At the seventh circuit just recently when you sell broke in the NCR case to a mill recycler That paper company absolutely categorically unequivocally knows that when it sells to a recycler The the broke gets broken into two parts one reusable for paper the other Uh, PCB contaminated and it's going to have to be disposed The issue is this if you look at new Mo Abacks if you look at the seventh circuit What you what you see is that the responsibility for disposal in in the case of a legitimate sale Lies with the processor It lies with wool it lies with the ball bearing people who make new ball bearings It lies with the paper recycler It does not lie and that's with the seller and that's why me give you three scenarios Okay, first is Georgia power has a transformer and by the way if I remember the record correctly Another of the of these 101 maybe 87 or 88 of them still under Georgia powers Guidelines had much more usable life left in them. That's correct. All right now scenario number one Georgia power takes transformers that they say everybody greased They're used but they have usable life and they sell those I'm going to ask in each instance if Georgia powers in the range are under your theory The next the third is Georgia power has these transformers and they know they are not workable Cannot be made workable and then they sell them and the middle which is more like this they sell equipment which To go on the secondary market Have to be refurbished in some way. I take that they know that because otherwise maybe they would just sell them Now when are they an arranger and when are they not an arranger and those three scenarios? They are not an arranger in any of those scenarios Not even the last one when they know good and well they're no good and and they have PCBs and they don't want to deal with it Here yeah, no that that the answer to your question is they are not an arranger here is why Your hypothetical respectfully should also assume the legitimacy of the sale What I don't know why it does you assume that I didn't all right. I didn't put it in there Well, I thought it was a better inference that when they sell the stuff does complete junk they Everybody seems to know there's a PCB problem Like they know what then when they're an arranger and that's in that scenario The third one no, are they ever an arranger and your mind? Yes They can't be in that third one because you had you sold transfer form was that was in fact faulty some of them were faulty weren't it? Yes, but someone not operable. Is that right? Yes, so you got us you got to see what you see No, no, no, that's not my man. I don't because hypothetical is they are not workable and you know they cannot be made workable Under any circumstances, okay, that's a scrap right that is the chivalent case and that's the term you use scrap wasn't it? I'm sure we did yeah, you did you says right? I know all these things scrap well There's no evidence in the record your honor that scrap doesn't mean that with judge ages They are scrap that's what you said they were that right? Yes, you just argue that the terminology you use scrap that means something to you But it doesn't mean it and with everybody in the world that mean what judge ages scrap in essence is scrap here's real scrap just like what judge a Spurs crap your scrap right in the chivalent case Uh, which is cited in our brief Transformers were sold as scrap they were sold to a scrap dealer not to a refurbisher like ward they were sold for scrap The scrap had value the metal had value the copperhead value The court determined because of the market Because the competitive bid the way it was sold it was not an engine The the issue has to do with Georgia powers intent and and I respectfully suggest that the active market for the transformers Dictus intent would you would you advise your power anytime they want to tell sell something has a potential PCB probably to absolutely put memos in the file send we're selling this for the sole purpose of recovery some scrap Prices we don't know and don't care about anything else in the world and if we did we do it differently But for us it's just the scrap metal market period with that in your when in your scenario then that would always protect Georgia Pacific Georgia power Wouldn't always protect Again, no, I don't think so only if The memo reflected reality and the reality has to be a competitive market

. That's correct. All right now scenario number one Georgia power takes transformers that they say everybody greased They're used but they have usable life and they sell those I'm going to ask in each instance if Georgia powers in the range are under your theory The next the third is Georgia power has these transformers and they know they are not workable Cannot be made workable and then they sell them and the middle which is more like this they sell equipment which To go on the secondary market Have to be refurbished in some way. I take that they know that because otherwise maybe they would just sell them Now when are they an arranger and when are they not an arranger and those three scenarios? They are not an arranger in any of those scenarios Not even the last one when they know good and well they're no good and and they have PCBs and they don't want to deal with it Here yeah, no that that the answer to your question is they are not an arranger here is why Your hypothetical respectfully should also assume the legitimacy of the sale What I don't know why it does you assume that I didn't all right. I didn't put it in there Well, I thought it was a better inference that when they sell the stuff does complete junk they Everybody seems to know there's a PCB problem Like they know what then when they're an arranger and that's in that scenario The third one no, are they ever an arranger and your mind? Yes They can't be in that third one because you had you sold transfer form was that was in fact faulty some of them were faulty weren't it? Yes, but someone not operable. Is that right? Yes, so you got us you got to see what you see No, no, no, that's not my man. I don't because hypothetical is they are not workable and you know they cannot be made workable Under any circumstances, okay, that's a scrap right that is the chivalent case and that's the term you use scrap wasn't it? I'm sure we did yeah, you did you says right? I know all these things scrap well There's no evidence in the record your honor that scrap doesn't mean that with judge ages They are scrap that's what you said they were that right? Yes, you just argue that the terminology you use scrap that means something to you But it doesn't mean it and with everybody in the world that mean what judge ages scrap in essence is scrap here's real scrap just like what judge a Spurs crap your scrap right in the chivalent case Uh, which is cited in our brief Transformers were sold as scrap they were sold to a scrap dealer not to a refurbisher like ward they were sold for scrap The scrap had value the metal had value the copperhead value The court determined because of the market Because the competitive bid the way it was sold it was not an engine The the issue has to do with Georgia powers intent and and I respectfully suggest that the active market for the transformers Dictus intent would you would you advise your power anytime they want to tell sell something has a potential PCB probably to absolutely put memos in the file send we're selling this for the sole purpose of recovery some scrap Prices we don't know and don't care about anything else in the world and if we did we do it differently But for us it's just the scrap metal market period with that in your when in your scenario then that would always protect Georgia Pacific Georgia power Wouldn't always protect Again, no, I don't think so only if The memo reflected reality and the reality has to be a competitive market. So for example I mean there are cases where a Cellar you may tell somebody's willing to buy it then that eliminates the intent No, because we know from the general electric case there was some guy willing to buy it. So it can't be competitive market Right, it has to be competitive. It has to be real and here there is it isn't as if there isn't a Recognized used transformer market in the United States. I mean it exists well if we differentiate Two of the scenarios The reusable transformer market from what we've now called the pure scrap market And I remembering the record correctly they kind of none of these hundred transformers fit in the pure scrap my understanding is that Ward sold all of them for more than they paid or they were able to sell parts out of them So Ward was in the business. This is their business right and they can't be in this business without purchasing used transformers and they purchased them And they did and what they would do is they would put them in their yard and they would wait And then if judge Shade called up and said I need a transformer for the pie. Don't get me into that disposal phone I need I need a transformer for a hospital and they say well what voltage do you think and they they go and if they had one that worked They sell it right then and there some they sold just they flip others They go ahead and they reconfigure so If you look at pneumo Apex this other wasn't responsible for the way the foundry dealt with slag If you look at the seventh circuit NCR isn't responsible for way for for how the Is there any evidence is there I'm asking you is there any evidence in this record of the intent of Georgia power as it relates to disposing of bcb's I mean explicit we talk about what could be inferred from the sale none except this except this Georgia power company did testify and this was unrivaled That they did not intend to dispose of bcb's and the reason is they had a separate track to dispose of bcb's So there are different levels of bcb contaminated if you're over 500 or so that's your argument That if there is to be any intent on the part of Georgia power is your To just that the sale was at least in part to dispose of bcb's that would have you say that would have to be inferred from the act of sale itself I think that's right

. So for example I mean there are cases where a Cellar you may tell somebody's willing to buy it then that eliminates the intent No, because we know from the general electric case there was some guy willing to buy it. So it can't be competitive market Right, it has to be competitive. It has to be real and here there is it isn't as if there isn't a Recognized used transformer market in the United States. I mean it exists well if we differentiate Two of the scenarios The reusable transformer market from what we've now called the pure scrap market And I remembering the record correctly they kind of none of these hundred transformers fit in the pure scrap my understanding is that Ward sold all of them for more than they paid or they were able to sell parts out of them So Ward was in the business. This is their business right and they can't be in this business without purchasing used transformers and they purchased them And they did and what they would do is they would put them in their yard and they would wait And then if judge Shade called up and said I need a transformer for the pie. Don't get me into that disposal phone I need I need a transformer for a hospital and they say well what voltage do you think and they they go and if they had one that worked They sell it right then and there some they sold just they flip others They go ahead and they reconfigure so If you look at pneumo Apex this other wasn't responsible for the way the foundry dealt with slag If you look at the seventh circuit NCR isn't responsible for way for for how the Is there any evidence is there I'm asking you is there any evidence in this record of the intent of Georgia power as it relates to disposing of bcb's I mean explicit we talk about what could be inferred from the sale none except this except this Georgia power company did testify and this was unrivaled That they did not intend to dispose of bcb's and the reason is they had a separate track to dispose of bcb's So there are different levels of bcb contaminated if you're over 500 or so that's your argument That if there is to be any intent on the part of Georgia power is your To just that the sale was at least in part to dispose of bcb's that would have you say that would have to be inferred from the act of sale itself I think that's right. I mean there is not I mean you agree that it should be right I'm saying your argument is that's the only way in this case it can be that's right and so that's why I put so much emphasis and I think the cases put emphasis on the bonafides of the sale Look in this there are cases and and the cello foil case usb g e willson road summit equipment in all of these cases Somebody the seller got something back here. There are no discounts no credits no giveaways no side deals no below market deals no Different price if we have oil in no different price of the boy allowed no different price if we if it's broken No different price if it comes with parts or it doesn't come with parts. It's a bonafide bid competitive bit of this situation contrast with new mo a-bapt in your mind You've talked about it already happens. Well, I mean the scenario contrast with that well I think this scenario is even stronger. I mean why so Well, we had a competitive bid there's no evidence in the record that new mo a-bax was competitive um But we have the same scenarios the foundry is responsible for how it processed the ball bearings and what resulted from that and how they disposed But when you look at the first fact in umo events Essentially the courts said that the wheel bearings could be used in their entirety I mean there seems to be evidence here these transformers have to be broken down they had they had parts had to be replaced Uh on on at least some of them Uh, right. You know what up for them to be used so that fact it cannot be entirely applicable to this case You know you're on your you mentioned the seven circuit case continually, but this is before trial Didn't that happen after trial? Uh, the seventh circuit that yes you are

. I mean there is not I mean you agree that it should be right I'm saying your argument is that's the only way in this case it can be that's right and so that's why I put so much emphasis and I think the cases put emphasis on the bonafides of the sale Look in this there are cases and and the cello foil case usb g e willson road summit equipment in all of these cases Somebody the seller got something back here. There are no discounts no credits no giveaways no side deals no below market deals no Different price if we have oil in no different price of the boy allowed no different price if we if it's broken No different price if it comes with parts or it doesn't come with parts. It's a bonafide bid competitive bit of this situation contrast with new mo a-bapt in your mind You've talked about it already happens. Well, I mean the scenario contrast with that well I think this scenario is even stronger. I mean why so Well, we had a competitive bid there's no evidence in the record that new mo a-bax was competitive um But we have the same scenarios the foundry is responsible for how it processed the ball bearings and what resulted from that and how they disposed But when you look at the first fact in umo events Essentially the courts said that the wheel bearings could be used in their entirety I mean there seems to be evidence here these transformers have to be broken down they had they had parts had to be replaced Uh on on at least some of them Uh, right. You know what up for them to be used so that fact it cannot be entirely applicable to this case You know you're on your you mentioned the seven circuit case continually, but this is before trial Didn't that happen after trial? Uh, the seventh circuit that yes you are. So I mean that's the whole different only thing what what happened here Doesn't mean you wouldn't win your case Well, it's just meaning that you don't get to win it before trial as this seventh circuit case It actually goes to trial in a fact made Maybe you disagree. Maybe you don't disagree, but it goes to trial And that's the case you cite is the seventh circuit. No, you're in the center Well, you brought it up several times in relation to the new mo a-bax case and and and and and turning for standing for the same proposition And so I think it is relevant to say you you're talking about a case actually went to trial and that was the in result of it As opposed to a case where we are now in a pre-trial state, but well two two I think the court raised two issues. Let me address the the notion of the fact that this was on summary judgment My friends also agreed that all the evidence in the record was undisputed In fact they filed a cross motion for summary judgment now I understand the court has a denobo review But my point is simply this on the issues the direct evidence of Georgia power and its intent and on the evidence of of Two tracks one for disposal one for sale of disposal contracts being in the record of the legitimacy of the sale The court had all the undisputed evidence that it needed and there were no genuine issues of material Objective determination you look at you look at it objectively to determine if the sale was being done Legitably or do does it as it seems that you're indicating does not matter what Georgia text Motive for what is intent to do this if it if there's an objective basis for determine that the sale is legitimate in your view is that okay? I If I understand your question correctly again So you can understand it and that is because I think I'm just trying to understand where you go That is it seems to me you're saying look at the objective In a words yes, I'm a subjective intent forget about about the fact that Georgia tech me and five Be wanting to do something different look at the objective factors here And if you have if that's your basis what is the case that says that well no no what I'm saying is there is no Undisputed evidence with respect to the legitimacy of the sale they agreed remember when I said That's what I meant you're under there is no dispute. There is no dispute Thank you. So there there was no Don't dispute about the evidence at all

. So I mean that's the whole different only thing what what happened here Doesn't mean you wouldn't win your case Well, it's just meaning that you don't get to win it before trial as this seventh circuit case It actually goes to trial in a fact made Maybe you disagree. Maybe you don't disagree, but it goes to trial And that's the case you cite is the seventh circuit. No, you're in the center Well, you brought it up several times in relation to the new mo a-bax case and and and and and turning for standing for the same proposition And so I think it is relevant to say you you're talking about a case actually went to trial and that was the in result of it As opposed to a case where we are now in a pre-trial state, but well two two I think the court raised two issues. Let me address the the notion of the fact that this was on summary judgment My friends also agreed that all the evidence in the record was undisputed In fact they filed a cross motion for summary judgment now I understand the court has a denobo review But my point is simply this on the issues the direct evidence of Georgia power and its intent and on the evidence of of Two tracks one for disposal one for sale of disposal contracts being in the record of the legitimacy of the sale The court had all the undisputed evidence that it needed and there were no genuine issues of material Objective determination you look at you look at it objectively to determine if the sale was being done Legitably or do does it as it seems that you're indicating does not matter what Georgia text Motive for what is intent to do this if it if there's an objective basis for determine that the sale is legitimate in your view is that okay? I If I understand your question correctly again So you can understand it and that is because I think I'm just trying to understand where you go That is it seems to me you're saying look at the objective In a words yes, I'm a subjective intent forget about about the fact that Georgia tech me and five Be wanting to do something different look at the objective factors here And if you have if that's your basis what is the case that says that well no no what I'm saying is there is no Undisputed evidence with respect to the legitimacy of the sale they agreed remember when I said That's what I meant you're under there is no dispute. There is no dispute Thank you. So there there was no Don't dispute about the evidence at all. You think you think evidence of subjective intent on the part of Georgia power Be relevant Well, George look Georgia power There's always the answer is no no because Okay, man, I'm getting subjective and objective a little confused You're not confusing you just said is not subjective you like you now need to backtrack that answer a little bit if you want to let me No, I what I'm suggesting is that in every instance a seller Subjectively wants to get rid of its inventory So the answer to that extent the answer is yes, which You're still on all over yourself. I think the answer is obvious. I think it is Isn't it true that's the subjective intent of the seller is relevant yes or no Yes, yes, and so but you can still have some rejudgment if there's no evidence of any subjective intent to dispose That is correct. So you could address the question of subjective judgment That could be taken into account under the objective factor of whether there's any evidence From which a contrary conclusion could be reached in that correct. Yeah, you like that argument better than the one you just made Yes, I don't know I don't know But by the way, it's not it's not an argument. There's an answer

. You think you think evidence of subjective intent on the part of Georgia power Be relevant Well, George look Georgia power There's always the answer is no no because Okay, man, I'm getting subjective and objective a little confused You're not confusing you just said is not subjective you like you now need to backtrack that answer a little bit if you want to let me No, I what I'm suggesting is that in every instance a seller Subjectively wants to get rid of its inventory So the answer to that extent the answer is yes, which You're still on all over yourself. I think the answer is obvious. I think it is Isn't it true that's the subjective intent of the seller is relevant yes or no Yes, yes, and so but you can still have some rejudgment if there's no evidence of any subjective intent to dispose That is correct. So you could address the question of subjective judgment That could be taken into account under the objective factor of whether there's any evidence From which a contrary conclusion could be reached in that correct. Yeah, you like that argument better than the one you just made Yes, I don't know I don't know But by the way, it's not it's not an argument. There's an answer. I just want to get this straight Yes, that answer better than the answer you get Let me just say this because I'm going to judge the rest of your argument and your analysis by this And I think judge A.G pointed out to you that she already says subjective intent does matter on the question of summary judgment Can there be evidence of subjective intent yes All right, thank you very much Mr. Ginsburg glad to hear from you Which which your best evidence and the record That Georgia power intended to dispose of PCBs other than the fact that just to say all the Yeah, so the evidence in the record is that number one Georgia power had an entire process for disposing of used Transformers which were contaminated with PCBs and they knew because they tested all their transformers To know what PCB levels were so they had a whole process was a track process so they had a track of disposing of Transformers. I had a lot of PCB contamination by sending them to a hazardous waste disposal facility And they had a separate process for transformers that had lesser contamination Because they thought hey, we can make a little bit of money by selling these transformers To a recycler or a reger or a scrap dealer. That's because the federal laws governing PVs did not require lower level PCB contaminated transformers to go to a hazardous waste disposal facility They were able to sell them on the secondary market. It was part of the same disposal process Because they knew that the transformers had PCB contamination in them They knew they could not be reused as transformers without removing the guts that had the PCB contamination in them There is sophisticated user of transformers and of PCB transformers for very random The distinguish your tractor owner for instance the tractor owner is not a sophisticated user Maybe if sophisticated user of the tractor But take that that person and now have that person in the business of gathering lots of used tractors And as a business of selling used tractors that person now reach the level where they have Intent and they acknowledge enough of the contamination resulting from their But in your scenario any time a person is sophisticated

. I just want to get this straight Yes, that answer better than the answer you get Let me just say this because I'm going to judge the rest of your argument and your analysis by this And I think judge A.G pointed out to you that she already says subjective intent does matter on the question of summary judgment Can there be evidence of subjective intent yes All right, thank you very much Mr. Ginsburg glad to hear from you Which which your best evidence and the record That Georgia power intended to dispose of PCBs other than the fact that just to say all the Yeah, so the evidence in the record is that number one Georgia power had an entire process for disposing of used Transformers which were contaminated with PCBs and they knew because they tested all their transformers To know what PCB levels were so they had a whole process was a track process so they had a track of disposing of Transformers. I had a lot of PCB contamination by sending them to a hazardous waste disposal facility And they had a separate process for transformers that had lesser contamination Because they thought hey, we can make a little bit of money by selling these transformers To a recycler or a reger or a scrap dealer. That's because the federal laws governing PVs did not require lower level PCB contaminated transformers to go to a hazardous waste disposal facility They were able to sell them on the secondary market. It was part of the same disposal process Because they knew that the transformers had PCB contamination in them They knew they could not be reused as transformers without removing the guts that had the PCB contamination in them There is sophisticated user of transformers and of PCB transformers for very random The distinguish your tractor owner for instance the tractor owner is not a sophisticated user Maybe if sophisticated user of the tractor But take that that person and now have that person in the business of gathering lots of used tractors And as a business of selling used tractors that person now reach the level where they have Intent and they acknowledge enough of the contamination resulting from their But in your scenario any time a person is sophisticated. Oh, they're PCBs involved correct They know their piece sure and so they sell Uh, a used transformer even if it's usable for another short period of time They know that at some point those PCBs have to be dealt with correct. I think that's exactly right You think anytime you sell a used item that has a PCB you are an arranger under any analysis if you haven't made Yes, if you haven't made arrangements to make sure that it's being sold to a purchaser who is able To manage the PCBs In other words, it would be no liability if the person to whom George of power sold the transformers manage them properly and didn't spill PCBs And that's takes me to mr Is it right hearts legit? So when you go to the auction market there are 50 buyers out there You sell to the high-speed For chance 49 of the bidders Turned out to be responsible and this 50th one did not and that's who made the house did You're under a duty to investigate all 50 of the bidders before you can sell an auction You're certainly under a duty to make sure that the bidder to whom you sold it is a legitimate bidder And that's why when mr Right heart Better came me had enough money to buy the product Well, think of what happens if that's the case legitimacy of sales what mr. Reinhardt kept saying if there's a competitive mark That the answer to this question is yes, you have a duty if you want to avoid Circular liability to make sure that you dispose of your material properly and that means selling it Or transferring it to someone who's going to dispose of it properly Is it an objective analysis of of the what's going on here in terms of the transaction or is it the subjective intent of Of the so-called arranger here that I think it's certainly a subjective analysis is appropriate and I think and I think but I think intent to dispose of PCBs and you do so under these kind of circumstances In your view does that then have any Relative see here the materiality here. Why I think there's there's both of subjective and objective evidence and sufficient to hold Georgia power Live on this you have a summary judgment over subjective intent questions. Don't you I do And I think that there's enough evidence in the record that the objective and no no no I understand that be your position But you don't think the fact that subjective intent is a factor Precluse summary judgment. I absolutely agree that I think in this case it's clear why she best evidence of subjective intent Other than the actual sale the two that the split process no the Georgia power had an entire process for managing PCB Well, that's there's a whole process

. Oh, they're PCBs involved correct They know their piece sure and so they sell Uh, a used transformer even if it's usable for another short period of time They know that at some point those PCBs have to be dealt with correct. I think that's exactly right You think anytime you sell a used item that has a PCB you are an arranger under any analysis if you haven't made Yes, if you haven't made arrangements to make sure that it's being sold to a purchaser who is able To manage the PCBs In other words, it would be no liability if the person to whom George of power sold the transformers manage them properly and didn't spill PCBs And that's takes me to mr Is it right hearts legit? So when you go to the auction market there are 50 buyers out there You sell to the high-speed For chance 49 of the bidders Turned out to be responsible and this 50th one did not and that's who made the house did You're under a duty to investigate all 50 of the bidders before you can sell an auction You're certainly under a duty to make sure that the bidder to whom you sold it is a legitimate bidder And that's why when mr Right heart Better came me had enough money to buy the product Well, think of what happens if that's the case legitimacy of sales what mr. Reinhardt kept saying if there's a competitive mark That the answer to this question is yes, you have a duty if you want to avoid Circular liability to make sure that you dispose of your material properly and that means selling it Or transferring it to someone who's going to dispose of it properly Is it an objective analysis of of the what's going on here in terms of the transaction or is it the subjective intent of Of the so-called arranger here that I think it's certainly a subjective analysis is appropriate and I think and I think but I think intent to dispose of PCBs and you do so under these kind of circumstances In your view does that then have any Relative see here the materiality here. Why I think there's there's both of subjective and objective evidence and sufficient to hold Georgia power Live on this you have a summary judgment over subjective intent questions. Don't you I do And I think that there's enough evidence in the record that the objective and no no no I understand that be your position But you don't think the fact that subjective intent is a factor Precluse summary judgment. I absolutely agree that I think in this case it's clear why she best evidence of subjective intent Other than the actual sale the two that the split process no the Georgia power had an entire process for managing PCB Well, that's there's a whole process. Yeah, the whole program and knowledge and sophistication They're showing hundreds of these things thousands of these things and they know that they PCBs are a problem and they're subject to all the regulations Thank you very much. We'll step down green council and go to record to the next case

We're ready for the first case. It's consolidation co-company versus Georgia power. Mr. Dara is it Dara? Dara? Good morning. Good morning. May the police report my name is Dan Dara. I represent a peasant and plaintiff consolidation co-company in this case Maybe real quickly before we get into the details of the case a little comment about what transformers do That might be helpful transformers are used as I'm sure you know to change the voltage and electric current Either stepping it down or stepping it up the essential component of The transformer is what called the core and the coil Core is composed of iron sheets that are bound together the coils are a primary coil and a secondary coil For the incoming voltage in the eye Whether it was useful I take it. I'm sorry running. It's all going to the issue whether this was junk or whether it was used Yes, but in order to get to that issue I think to understand that The guts of the transformer or the core and coil if the core and coil are damaged sounds like what you give me is what I've just read in You brief that's what I was yeah, yeah, see you're out where we're going with this. He just want you move on to you. Right. Okay As is also indicated in the brief the appellance here and two other parties have spent now $78 million cleaning up of costfully 450,000 Won't you go to a legal argument? Okay? Our argument is on this appeal that Georgia powers Sail of its broken and obsolete transformers did include an arrangement for disposal of a hazardous substance that would subject it to liability the key words Savannah electric ones understand the record they were all working They were obviously in an order to be Well in order to be useful for anybody they had to be completely rebuilt They couldn't be used on anybody's system as they were because their voltages were not Configured properly in order to change those voltages they had to be taken those transformers Plugged them in turn them on and they will work might not have given you what you wanted but they would have worked That's a fair statement so what difference does it make if the ultimate customer needed to Reorient the voltage in Transform The ultimate customer well Whether you're talking about a broken transformer or an autopransformer In order to be usable it has to be reclaimed it has to be remade It goes right to the point the first factor in pneumo abax about whether a Materials reused entirely or whether it has to be reclaimed before it can be reused whether Find the drill down for the principles Sometimes we have to use hypothalamus to do that. Let's say with the Savannah electric ones They all worked and in theory Some other power company and Pakistan could have used them right away Wait a minute but The purchaser of them sent ten there but decided they could make more money if they kept ten here and We did the coils and sold them to somebody else But they're for some That under that scenario. I don't think it makes a difference I do think it makes a difference if so so the answer then is if as they were sold They're usable anywhere in the world as they are than you lose That's what you answer was yes But usable as transformers as is Not Remade to be transformers to be to be used As I look at the Supreme Court cases on this and the element of intent That has been added by the Supreme Court into it is that you must indicate there was a intent on the part of Georgia power at the time that it sold these transformers to essentially dispose of the PCB this residual PCD because I understand the most part they drained it out right Do you read it that way? I read the Supreme Court? Burlington, Northern is saying that in order for the be liability the transaction has to include or the the sellers has to include and Intent not necessarily the intent to discard those PCBs So you can infer or is it to be Something that I think you have to bring forth to actually show I think I think that that resolved I think it I think the court indicated particularly by citing to this Cell of oil case that it could be determined from looking at circumstantial evidence It's not something where you have to have the seller admit. Yes. I intended to get rid of the PCBs by doing this Put it in putting it in the context of these transactions at the time these transactions occurred There were limitations on what Georgia power could do with Transformers depending upon what the PCB concentration was in those transformers They in Adopted a written policy to finding how they were going to Dispose their word not mine dispose of their obsolete and broken transformers and 1978 they changed that policy or amended that policy to say as part of Looking at how we're going to dispose of those transformers We're going to test the PCB Concentration and that will tell us what we can do this with clarity of the contamination It seems to me Congress change that statue had it spillage and leakage in it That a very small pot small amount of that PCB can do a lot of damages. That's pretty much absolutely We're talking drops. So we just yes this The site that we've cleaned up 450,000 tons of contaminated dirt a lot of contaminated dirt There wasn't a big dumping of oil on that site. It was drips and spills Resulting from the process of opening up the transformer pulling out the corn coil which is soaked in oil That drips people walk on it. They drive high lifts over it. They take that out into the backyard The soil gets contaminated a little bit here a little bit there over time It's not a massive spill Let's say I've got a farm tractor And I decide I want to go and get another So I'm going to sell this It's got hydraulic bowl and it Regular oil is diesel And obviously I don't want to clean that tractor out with all that's in there because I'll have trouble selling it And I'd have to dispose of it. So I'm going to sell it And it might be used for farming lumber business construction But it's got hazardous substances in Cell the tractor And not a ranger Well, you may be an arranger, but you're not subject to liability because you probably qualify for the consumer product and consumer use exemption That's not consumer use in business You're using the product you're using it in your in your business. What if he what if he has a business and he's used five or six and he sells one one of the same scenario In fact that he wouldn't qualify for the consumer product exemption you sell it Well, you sell it for sold it for reuse is right right on your phone. Okay Am I an arranger? No because I'm entirely reusing the tractor As you sold it to me Okay Then you could be an arranger if there was high hazardous substance in the hydraulic oil and I don't know that there is because they're typically is not What if you drain the oil out of the tractor before it's given to them knowing that they may be some residual part in it Would that make any way? Well, I'd answer the question this way I mean one of the purposes of the environmental laws including circular is the hold people responsible for the hazardous substances that they use and profit from their use and to say that it's your responsibility When the use is no longer there that it's been used up there. What was the answer to his question answered it question is that um, I think if there's residual contamination in there and your way of getting rid of that residual contamination is to sell to somebody else that you're an arranger Oh some of these transformers the oil was drained from somewhere not Yes, but none were empty of oil they all had some at least residual oil in it because they get usable a transformer that has had All drained from it you simply just put oil back in it. No What do you do you open it up and you take out the guts you Replace the corns the coils because the coils are this insulation and the coils are saturated with the oil the oil the oil The oil within them is like molasses. It's not like water. That's just some run out and dry up and so that insulation is saturated and impregnated with PCBs the inside of the casing the tank is coated with that oil For an employee's as part of rebuilding and repairing these things climbed inside those things with rags that used to But if these transformers were being sold new Sold new the person who sold them wouldn't be liable for any of this. No, that would not What are the person's cells that knowing that the oil or the PCBs have to be changed every 100,000 hours or something like that. Don't they present the exact same concerns you have I don't think that if you sell something that's brand new that will last or expected the last no No, you sell it knowing there's no question. You know those PCBs have to be at some point in the life They have to be replaced an oil change in a car. Are you an arranger then? I don't think so then why is that any different than the hypothetical Judgment I think I think it's the timing in terms of if I'm selling it because now is the time that I have to get rid of those PCBs Well, Judge A. G's hypothetical he didn't wait to the last minute of life of the hydraulic oil because he knows He's gonna have to you know take a hit in the price So he does it halfway through the life because that suits his business schedule Is he is that change the scenario in your mind as to whose responsible us compared to a cell of a new product? I think that if part of his purpose of entering into the transaction includes an The dispose of a hazardous substance. He wants to dispose of the tractor He also wants to dispose of your hypothetical. No, no he is he just wants to sell the tractor He doesn't have any intent Only in ten he has is that the tractor has hydraulic fuel in it. I've had to have that That he has the hydraulic fuel in it. He's selling he wants to sell the tractor Right see is he is he's in more trouble than a seller of a new tractor knowing that at some point the person They sell the tractor to and if this says is judge A. G. will have to change the hydraulic fluid and my in my view Yes, he's in more trouble than the seller of a brand new tractor. Thank you very much Thank you. But the real issue in that case would be whether the intent was to dispose of PCB The selling of the tractor selling of the transformers nothing wrong with doing that My friend of supreme court Northern case essentially what you have to establish if there's an intent to dispose of PCBs and to know There's residual PCB from your perspective. I would think it would be if Georgia power sells a transformer Nor in this PCB in it, but there is residual from the have a drain it or from ball itself Then the question is is this something that has to be redone and it redone it will there be spillage? Will there be leakage will there be that whole array of things that cover stuff about in the later enactment? I would I would agree with that except I would modify it that I have to show that the intent included The intent to get rid of those PCBs not that the sole intent was to get rid of those PCBs Thank you. Thank you. Is to down Ginsburg Good morning your honor is morning. They have pleased the court might Ginsburg for PCS phosphate I want to be clear about one thing in particular 17 of the transformers the Georgia power sold to ward for full of oil One of them had 520 gallons of PCB oil containing 488 parts per million of PCBs Would that make them a ranger if they were fully operational and would immediately be put back to use without any change whatsoever? If they were if they could if that were the facts in the case It would not make them a ranger if they could be reused as they were The fact is that these trends being full of oil helps you from the perspective of showing That at least one of the purposes that is included in this would be the fact that that Georgia power wanted them to dispose of this PCB If it's a fully functional Transformer with the oil in it Whether you send it to Pakistan or you send it down to research triangle park It doesn't matter if it is operation with it doesn't make them a ranger does it? If the transformer was operation, I think Mr. Daird just agreed with that there's it's not an arrangement for the disposal But in fact these transformers were not operational That's what the facts in the underlying case in the under in the record show is that in fact these transformers were faulty they were obsolete they were scrapped There is there were there was Georgia power had a whole practice and a whole procedure for disposing of its useless transformers these were transformers that they had pulled off the lines either because they were faulty Well, let's say let's say 100 was just rounded off the cell 100 transporters and the purchaser of the transformers has a market in Victor country facts down at gas down at 50 over there Because they can use them right away because of the state of their electric systems But the other 50 they can't they have to be redone So when Georgia power sells them they don't know what they're going to do with the transporters Under that fact scenario are they an arranger and holer and part There's certainly an arranger in part because 50 of those transformers are faulty That was the these these transformers are coming off the line. They've been hit by electricity They failed and in order to make them usable they have to be rebuilt what Georgia why what if what if the cell or thought mistakenly but thought they were all usable somewhere as they were somewhere Then they wouldn't be responsible for anything they thought was usable as is correct under your theory If the facts were shown your honor that's what I said yeah Now that's interesting I would agree with you in that scenario if they thought that all of the transformers were usable As to each transform they thought was reusable in some way as it was Then they're not on arranger as to that transfer because they could be reused in the words of the answer is yes Because they could be reused in the words of the new my back's decision. They could be reused as is they didn't have to be reclaimed and reused And under that your answers yes But if they if that was just one thing they thought they could be reused but they also had the purpose If they also had the additional fact the purpose and intent to dispose of PCB Would that make them a rich? Under that scenario and that's the fact well if you add that to the facts that their intent was to rid themselves of PCB Transformers without concern about whether they could be reused or not The fact you're trying to establish here is that is not about selling it this equipment is the fact that there's intent on the part of Georgia Power to dispose of this PCB that they've got they know they got to get rid of this thing So they drain it out and they know there's some residual in it and they sell a transformer to A repair shop or to speak us for someone who a middle person who's then going to resell it and and I just heard your Your co-counsel say if this thing is drained is got to be broken down now. I don't know if that's that's going to be held up on other side And not but that's what he said. No, that's exactly true. I've got to be broken down There's that spillage in that leakage and that can happen and then happen in this case once you cut the transformer open You've got to rebuild it and these transformers had to be rebuilt I mean the facts of the case are that Georgia power was a sophisticated user of transformers. I mean the electrical power utility company that they knew as much about transformers Anybody and that they were ridding themselves of these obsolete transformers which had PCBs in them if they could you Under the thunder that scenario isn't any seller of used equipment Anywhere going to be an arranger because even though there The main motivation is to sell equipment get what return they can You can almost assume that every piece of industrial farm construction Landscape equipment has some sort of a hazardous substance in it and certainly no seller of it is going to Want to keep the hazardous substance When they sell a equipment So What color of used equipment is not an arranger? A seller of used equipment that can be used in the condition of which it's sold is not an arranger But what but what part of the reason why if there was a memo they said these are still usable as selling quick Or they still have a year left on them because God knows we don't want to deal with PCBs at the end of year was all they did an arranger? I think they are I think if you look at the It doesn't turn on usability then and your mind goes back to intent goes back to intent and then this Quart has said in new moevex that no why wouldn't that apply to any person selling Some used item can you not could you not reasonably infer that at least as your Co-Council said a he said and intent not the intent he stressed two three times So there's any intent at all to deal with the problem of PCBs No matter what else Every use sale would become An arranger would it's gonna depend on the subject I agree with you. It's gonna depend on the dependent. I'm sorry Take the facts as I gave him to you. No, I'm not arguing with the fact what I'm saying is it depends There's another fact we need to know which is what is the sophistication of the person who's making the arrangement who's making the sell Sophisticated enough to know they're gonna have a problem on the right exactly and if that's the case and they're doing it in order to Arrains boarding to northern says if a purpose of the transaction is to arrange for the disposal Doesn't that give absolute Forverse incentives to try to be efficient and salvage and reuse everything Doesn't that lead to you might as well go ahead and throw away everything you have no matter if it has any useful life You better go and buy something new because you're gonna have other liabilities if you sell it up Yeah, I don't think so. I think the answer is that it's better to make sure that when you Dispose of something or sell something that's got hazardous substance in it But you have to make sure that the person you're selling it to you manage those have to do it either way though You have to do it if you sold it yourself if you sold I mean if you did it yourself or you sold to somebody else So if you get something if you buy something that has an environmental potential environmental concern You're not getting off the hood. You're not getting off the hood. It isn't that the right answer Well, that's not the right answer That you ought to be looking for this what was the intent of Congress in passing circle When it's right this is a material where a drop of two can cause tremendous damage It's a very harsh stash satches. There's no question about it And the courts have interpreted differently over over time But but the bottom line is if you have an intent To get rid of PCB couple with the fact you know that the person you're selling to is going to break it down And then it can get into the soil then maybe that's where you ought to be going with this argument rather than trying to give your personal opinion as to Whether this is a bad thing or I think Congress said if you're going to sell a product that has a hazardous substance in it You need to make sure the person to whom you're selling it is going to manage it properly So if you dispose of it your honor the way you suggested and you dispose of it in a improper way To somebody who's not a certified landfill and doesn't have all the precautions. You're gonna have a liability there too Thank you easy service. I did thank you. Thank you very much. Serine Hart Thank you honor made please the court Dan Reinhardt my partner Jamie Tario for Georgia Power Company We we do know judge win that not one drop of oil that they're talking about came from Georgia power companies transformers because there's no evidence in the record that Georgia power companies transformers We're leaking which gets to the main point and that is the intent of Georgia power company It is not enough That's not necessary. I mean no, it's not you are sending because what you're dealing with is Duke power and all these other power companies has pulled together And as I understand I mean this is being done that the intent here is to make sure the taxpayers don't have to pay this for this massive cleanup in the business of of of of trying to get rid of this PCB and and so the question of whether they have to actually show That you're a transformers Leite or Is that relevant well they have to show the condition of the transformer and one of you called it scrap Did you oh we propalled at any number of things you would call a transformer scrap call it jump and yet you say Is usually absolutely and we know from the testimony just drained of oil But which I understand somewhere right yes, you're on is that usable Well, it can be yes, but to make it usable do you have to break it down and do things to it or you know Just put some oil in it and and crank it up. I believe you can put just put oil in it. There's no answer It is it depends on the transformer your honor look The issue it depends on Georgia power. I'm trying to know it And then 10th in selling these transformers to this award company this transformer repair type plays If if all if it's like the tractor all you got to do is just For some oil in it and it keeps going that's one thing But if these coils have this really fixed stuff on it and you know there's PCB in there So I'm not sure you can just put oil in it once you take it out Without cleaning it or doing something funny actually that do you have to clean it Once it has been drained and when you reuse it can you just put oil on top of what's in there Well, must you go in and get rid of that PCB in it well I believe it depends on whether the transformer is Operable if you just put oil in it depends transformer to transform But the issue your honor I'm gonna turn it loose in a second I do want to know that answer because I think that's important because because if if all you that do if if the if if you're allowed Once it's been drained to just pour more oil in on top of seeing this already contaminated with PCB Then that's one thing, but if you if it if it's pretty clear you got to break that down and and redo those coils That's a different answer Respectfully your honor. I don't think that that's the question. I think the question goes well that is question it is it is Certainly and my question is not trying to get into the question of whether the oil is draining or it is the intent as a Supreme Court said in the Northern case of Georgia Southern It's in in in in terms of selling these that's right Well, the the issue is did Georgia power intend to dispose and does that happen and be the Soul intent well, there can be mixed motives, but there have to be evidence to support it is a in and intent no well efficient no No, you they can't that if they got a if the primary purpose is to sell an operable piece of equipment but they also intend to get rid of PCB that's not enough. Well, no, no you look anytime you sell anything you intend to get rid of it So the answer my question is no that's not enough. That's for exactly right. No, that's not enough And and one of the reasons you know not that that is not enough is that you have to look to the legitimacy of the sale here I mean that determines whether there is a mixed motive if you look at the general electric case for example where they sold hazardous substances to some to one individual and they sold it on a idiosyncratic basis and sometimes they got paid and sometimes they didn't that indicates mixed motive here We have a situation where you have an active used transformer market Ward is in the used transformer business. You can't be in the used transformer business without used transformers Georgia power cup had surplus used transformers ward needed and wanted them and Georgia power sold them on a competitive basis Sometimes ward bid you were sometimes pointed there was no PCB in them and I think after at some point in time They stopped putting this PC and be in them well So you don't have a problem those the ones with the PCB that we have the problem Correct your honor, but you have to have the intent to dispose of it and when look at a competitive bid process The legitimacy of the sale if you look at these cases look new Mo Abacks this quartz decision If you were going to redo ball bearings you you had slag which was loaded with hazardous metals if you look at At the seventh circuit just recently when you sell broke in the NCR case to a mill recycler That paper company absolutely categorically unequivocally knows that when it sells to a recycler The the broke gets broken into two parts one reusable for paper the other Uh, PCB contaminated and it's going to have to be disposed The issue is this if you look at new Mo Abacks if you look at the seventh circuit What you what you see is that the responsibility for disposal in in the case of a legitimate sale Lies with the processor It lies with wool it lies with the ball bearing people who make new ball bearings It lies with the paper recycler It does not lie and that's with the seller and that's why me give you three scenarios Okay, first is Georgia power has a transformer and by the way if I remember the record correctly Another of the of these 101 maybe 87 or 88 of them still under Georgia powers Guidelines had much more usable life left in them. That's correct. All right now scenario number one Georgia power takes transformers that they say everybody greased They're used but they have usable life and they sell those I'm going to ask in each instance if Georgia powers in the range are under your theory The next the third is Georgia power has these transformers and they know they are not workable Cannot be made workable and then they sell them and the middle which is more like this they sell equipment which To go on the secondary market Have to be refurbished in some way. I take that they know that because otherwise maybe they would just sell them Now when are they an arranger and when are they not an arranger and those three scenarios? They are not an arranger in any of those scenarios Not even the last one when they know good and well they're no good and and they have PCBs and they don't want to deal with it Here yeah, no that that the answer to your question is they are not an arranger here is why Your hypothetical respectfully should also assume the legitimacy of the sale What I don't know why it does you assume that I didn't all right. I didn't put it in there Well, I thought it was a better inference that when they sell the stuff does complete junk they Everybody seems to know there's a PCB problem Like they know what then when they're an arranger and that's in that scenario The third one no, are they ever an arranger and your mind? Yes They can't be in that third one because you had you sold transfer form was that was in fact faulty some of them were faulty weren't it? Yes, but someone not operable. Is that right? Yes, so you got us you got to see what you see No, no, no, that's not my man. I don't because hypothetical is they are not workable and you know they cannot be made workable Under any circumstances, okay, that's a scrap right that is the chivalent case and that's the term you use scrap wasn't it? I'm sure we did yeah, you did you says right? I know all these things scrap well There's no evidence in the record your honor that scrap doesn't mean that with judge ages They are scrap that's what you said they were that right? Yes, you just argue that the terminology you use scrap that means something to you But it doesn't mean it and with everybody in the world that mean what judge ages scrap in essence is scrap here's real scrap just like what judge a Spurs crap your scrap right in the chivalent case Uh, which is cited in our brief Transformers were sold as scrap they were sold to a scrap dealer not to a refurbisher like ward they were sold for scrap The scrap had value the metal had value the copperhead value The court determined because of the market Because the competitive bid the way it was sold it was not an engine The the issue has to do with Georgia powers intent and and I respectfully suggest that the active market for the transformers Dictus intent would you would you advise your power anytime they want to tell sell something has a potential PCB probably to absolutely put memos in the file send we're selling this for the sole purpose of recovery some scrap Prices we don't know and don't care about anything else in the world and if we did we do it differently But for us it's just the scrap metal market period with that in your when in your scenario then that would always protect Georgia Pacific Georgia power Wouldn't always protect Again, no, I don't think so only if The memo reflected reality and the reality has to be a competitive market. So for example I mean there are cases where a Cellar you may tell somebody's willing to buy it then that eliminates the intent No, because we know from the general electric case there was some guy willing to buy it. So it can't be competitive market Right, it has to be competitive. It has to be real and here there is it isn't as if there isn't a Recognized used transformer market in the United States. I mean it exists well if we differentiate Two of the scenarios The reusable transformer market from what we've now called the pure scrap market And I remembering the record correctly they kind of none of these hundred transformers fit in the pure scrap my understanding is that Ward sold all of them for more than they paid or they were able to sell parts out of them So Ward was in the business. This is their business right and they can't be in this business without purchasing used transformers and they purchased them And they did and what they would do is they would put them in their yard and they would wait And then if judge Shade called up and said I need a transformer for the pie. Don't get me into that disposal phone I need I need a transformer for a hospital and they say well what voltage do you think and they they go and if they had one that worked They sell it right then and there some they sold just they flip others They go ahead and they reconfigure so If you look at pneumo Apex this other wasn't responsible for the way the foundry dealt with slag If you look at the seventh circuit NCR isn't responsible for way for for how the Is there any evidence is there I'm asking you is there any evidence in this record of the intent of Georgia power as it relates to disposing of bcb's I mean explicit we talk about what could be inferred from the sale none except this except this Georgia power company did testify and this was unrivaled That they did not intend to dispose of bcb's and the reason is they had a separate track to dispose of bcb's So there are different levels of bcb contaminated if you're over 500 or so that's your argument That if there is to be any intent on the part of Georgia power is your To just that the sale was at least in part to dispose of bcb's that would have you say that would have to be inferred from the act of sale itself I think that's right. I mean there is not I mean you agree that it should be right I'm saying your argument is that's the only way in this case it can be that's right and so that's why I put so much emphasis and I think the cases put emphasis on the bonafides of the sale Look in this there are cases and and the cello foil case usb g e willson road summit equipment in all of these cases Somebody the seller got something back here. There are no discounts no credits no giveaways no side deals no below market deals no Different price if we have oil in no different price of the boy allowed no different price if we if it's broken No different price if it comes with parts or it doesn't come with parts. It's a bonafide bid competitive bit of this situation contrast with new mo a-bapt in your mind You've talked about it already happens. Well, I mean the scenario contrast with that well I think this scenario is even stronger. I mean why so Well, we had a competitive bid there's no evidence in the record that new mo a-bax was competitive um But we have the same scenarios the foundry is responsible for how it processed the ball bearings and what resulted from that and how they disposed But when you look at the first fact in umo events Essentially the courts said that the wheel bearings could be used in their entirety I mean there seems to be evidence here these transformers have to be broken down they had they had parts had to be replaced Uh on on at least some of them Uh, right. You know what up for them to be used so that fact it cannot be entirely applicable to this case You know you're on your you mentioned the seven circuit case continually, but this is before trial Didn't that happen after trial? Uh, the seventh circuit that yes you are. So I mean that's the whole different only thing what what happened here Doesn't mean you wouldn't win your case Well, it's just meaning that you don't get to win it before trial as this seventh circuit case It actually goes to trial in a fact made Maybe you disagree. Maybe you don't disagree, but it goes to trial And that's the case you cite is the seventh circuit. No, you're in the center Well, you brought it up several times in relation to the new mo a-bax case and and and and and turning for standing for the same proposition And so I think it is relevant to say you you're talking about a case actually went to trial and that was the in result of it As opposed to a case where we are now in a pre-trial state, but well two two I think the court raised two issues. Let me address the the notion of the fact that this was on summary judgment My friends also agreed that all the evidence in the record was undisputed In fact they filed a cross motion for summary judgment now I understand the court has a denobo review But my point is simply this on the issues the direct evidence of Georgia power and its intent and on the evidence of of Two tracks one for disposal one for sale of disposal contracts being in the record of the legitimacy of the sale The court had all the undisputed evidence that it needed and there were no genuine issues of material Objective determination you look at you look at it objectively to determine if the sale was being done Legitably or do does it as it seems that you're indicating does not matter what Georgia text Motive for what is intent to do this if it if there's an objective basis for determine that the sale is legitimate in your view is that okay? I If I understand your question correctly again So you can understand it and that is because I think I'm just trying to understand where you go That is it seems to me you're saying look at the objective In a words yes, I'm a subjective intent forget about about the fact that Georgia tech me and five Be wanting to do something different look at the objective factors here And if you have if that's your basis what is the case that says that well no no what I'm saying is there is no Undisputed evidence with respect to the legitimacy of the sale they agreed remember when I said That's what I meant you're under there is no dispute. There is no dispute Thank you. So there there was no Don't dispute about the evidence at all. You think you think evidence of subjective intent on the part of Georgia power Be relevant Well, George look Georgia power There's always the answer is no no because Okay, man, I'm getting subjective and objective a little confused You're not confusing you just said is not subjective you like you now need to backtrack that answer a little bit if you want to let me No, I what I'm suggesting is that in every instance a seller Subjectively wants to get rid of its inventory So the answer to that extent the answer is yes, which You're still on all over yourself. I think the answer is obvious. I think it is Isn't it true that's the subjective intent of the seller is relevant yes or no Yes, yes, and so but you can still have some rejudgment if there's no evidence of any subjective intent to dispose That is correct. So you could address the question of subjective judgment That could be taken into account under the objective factor of whether there's any evidence From which a contrary conclusion could be reached in that correct. Yeah, you like that argument better than the one you just made Yes, I don't know I don't know But by the way, it's not it's not an argument. There's an answer. I just want to get this straight Yes, that answer better than the answer you get Let me just say this because I'm going to judge the rest of your argument and your analysis by this And I think judge A.G pointed out to you that she already says subjective intent does matter on the question of summary judgment Can there be evidence of subjective intent yes All right, thank you very much Mr. Ginsburg glad to hear from you Which which your best evidence and the record That Georgia power intended to dispose of PCBs other than the fact that just to say all the Yeah, so the evidence in the record is that number one Georgia power had an entire process for disposing of used Transformers which were contaminated with PCBs and they knew because they tested all their transformers To know what PCB levels were so they had a whole process was a track process so they had a track of disposing of Transformers. I had a lot of PCB contamination by sending them to a hazardous waste disposal facility And they had a separate process for transformers that had lesser contamination Because they thought hey, we can make a little bit of money by selling these transformers To a recycler or a reger or a scrap dealer. That's because the federal laws governing PVs did not require lower level PCB contaminated transformers to go to a hazardous waste disposal facility They were able to sell them on the secondary market. It was part of the same disposal process Because they knew that the transformers had PCB contamination in them They knew they could not be reused as transformers without removing the guts that had the PCB contamination in them There is sophisticated user of transformers and of PCB transformers for very random The distinguish your tractor owner for instance the tractor owner is not a sophisticated user Maybe if sophisticated user of the tractor But take that that person and now have that person in the business of gathering lots of used tractors And as a business of selling used tractors that person now reach the level where they have Intent and they acknowledge enough of the contamination resulting from their But in your scenario any time a person is sophisticated. Oh, they're PCBs involved correct They know their piece sure and so they sell Uh, a used transformer even if it's usable for another short period of time They know that at some point those PCBs have to be dealt with correct. I think that's exactly right You think anytime you sell a used item that has a PCB you are an arranger under any analysis if you haven't made Yes, if you haven't made arrangements to make sure that it's being sold to a purchaser who is able To manage the PCBs In other words, it would be no liability if the person to whom George of power sold the transformers manage them properly and didn't spill PCBs And that's takes me to mr Is it right hearts legit? So when you go to the auction market there are 50 buyers out there You sell to the high-speed For chance 49 of the bidders Turned out to be responsible and this 50th one did not and that's who made the house did You're under a duty to investigate all 50 of the bidders before you can sell an auction You're certainly under a duty to make sure that the bidder to whom you sold it is a legitimate bidder And that's why when mr Right heart Better came me had enough money to buy the product Well, think of what happens if that's the case legitimacy of sales what mr. Reinhardt kept saying if there's a competitive mark That the answer to this question is yes, you have a duty if you want to avoid Circular liability to make sure that you dispose of your material properly and that means selling it Or transferring it to someone who's going to dispose of it properly Is it an objective analysis of of the what's going on here in terms of the transaction or is it the subjective intent of Of the so-called arranger here that I think it's certainly a subjective analysis is appropriate and I think and I think but I think intent to dispose of PCBs and you do so under these kind of circumstances In your view does that then have any Relative see here the materiality here. Why I think there's there's both of subjective and objective evidence and sufficient to hold Georgia power Live on this you have a summary judgment over subjective intent questions. Don't you I do And I think that there's enough evidence in the record that the objective and no no no I understand that be your position But you don't think the fact that subjective intent is a factor Precluse summary judgment. I absolutely agree that I think in this case it's clear why she best evidence of subjective intent Other than the actual sale the two that the split process no the Georgia power had an entire process for managing PCB Well, that's there's a whole process. Yeah, the whole program and knowledge and sophistication They're showing hundreds of these things thousands of these things and they know that they PCBs are a problem and they're subject to all the regulations Thank you very much. We'll step down green council and go to record to the next cas