MEMORANDUM OPINION AND ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants Augustine Metals, Inc.; D & L Metals, Inc.; So Cal Metal; Mid-City Iron & Metal Corp.; Alpert & Alpert Iron & Metal, Inc.; Barstow Truck Parts & Equipment Co., Inc.; Kramer Metals; A & S Metals; Sierra Iron & Metal Co., Inc.; and, Interstate NonFerrous Corp., have filed a motion seeking summary judgment as to Plaintiffs Second Amended Complaint. The motion has been joined by the following defendants: G. Harris International, Inc.; Steinmeyer Corp. dba Silver Steel & Metals Co.; Airways Metals & Refining Co.; Connell Limited Partnership, as successor-in-interest to Luria Brothers & Company, Inc.; John Curry, dba United Surplus Iron & Metals; Riverside Scrap Iron & Metal Corp.; and, Veatech Electric Service of Taft, Inc.

The motion is opposed by plaintiff Courtaulds Aerospace, Inc.; defendant William C. Huffman; and defendant and cross-complainant Bank of America.

I. BACKGROUND

The complaint of plaintiff Courtaulds Aerospace, Inc. alleges the following facts: Plaintiff is the owner of 150 acres of land in Mojave, California (the “Premises”). The land was previously owned by Bank of America. Defendant William C. Huffman owns approximately 12 acres just east of the Premises, on which he has operated a metal smelting plant (the “Plant”), Mobile Smelting Company, from 1961 to the present.

The California Environmental Protection Agency (“Cal-EPA”) determined that pollution from the Plant had contaminated the Premises with dioxin, lead, copper, and other heavy metals in hazardous concentrations. Cal-EPA required Courtaulds to conduct a remedial/removal preliminary assessment of the contamination of the Premises. Substantial cleanup costs are expected to be incurred by Courtaulds in the future.

All defendants other than Huffman and Bank of America, including the “Moving Defendants” (i.e., all defendants joining in the motion for summary judgment), owned plastic-insulated copper wire, which they contracted with Mr. Huffman to have burned and smelted. The purpose of this process was to burn off the plastic to salvage the copper. The burning of the plastic produced ash which contained hazardous substances. The ash was disposed of and released at the Plant and was carried by the wind, thereby contaminating the Premises.

Plaintiff contends three forms of ash were-created. “Furnace ash” was created by burning the insulation off the wire. Huffman would scrape this ash out of a catch basin and put it in piles on the ground or in drums. Exhaust from the incineration process would be channeled through a pipe into a “bag-house.” This “baghouse ash” would be collected in burlap bags which were stored or removed by a commercial hazardous waste handler. As the baghouse process was not completely efficient, remaining waste in the form of ash and gas would be vented through a smokestack. Plaintiff additionally alleges that from 1965 to 1972, Huffman burned copper wire on the ground without any emissions controls whatsoever.

Plaintiff has filed the declaration of an environmental engineer, Robert Glenn Still-man. Stillman believes the contamination of the Premises that occurred after 1972 was caused by the wind carrying two types of ash: the furnace ash that was left in piles, and ash (and gas) emitted ixom the smoke stack during the incineration process.

On February 18,1993, Moving Defendants’ motion to dismiss Plaintiffs first amended complaint was denied. The Court’s memorandum opinion stated:

Memorandum Opinion, February 18, 1993, at 8-10.

No party suggests the existence of any new case law but Moving Defendants assert, based on the deposition testimony of William Huffman, that there is no factual dispute as to their liability under CERCLA because: (1) they had no contract, agreement, understanding, or arrangement with Huffman to dispose of the ash; and (2) they did not own or possess the ash when Huffman, alone and for his own account, decided what to do with it.

II. STANDARDS FOR REVIEWING A MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548, 2552 , 91 L.Ed.2d 265 (1986). A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Anderson v. Liberty Lobby, 477 U.S. 242, 252-56 , 106 S.Ct. 2505, 2512-14 , 91 L.Ed.2d 202 (1986). The non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint. Id. at 249 , 106 S.Ct. at 2510-11. Evidence submitted in support of or in opposition to a motion for summary judgment must be admissible under rules governing admission of evidence generally. Hal Roach Studios, Inc. v. Rich ard Feiner & Co., Inc., 883 F.2d 1429, 1437 (9th Cir.1989).

The more implausible the claim or defense asserted by the opposing party, the more persuasive its evidence must be to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348, 1356 , 89 L.Ed.2d 538 (1986). Nevertheless, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor.” Liberty Lobby, 477 U.S. at 255 , 106 S.Ct. at 2513 . The Court’s role on summary judgment is not to weigh the evidence, ie., issue resolution, but rather it is issue finding. Id.

III. LIABILITY UNDER CERCLA

Under section 107 of CERCLA, four classes of persons are strictly liable for releases of hazardous substances: (1) current owners and operators of a facility where hazardous substances were disposed; (2) past owners or operators who owned or operated the facility at the time of disposal; (3) transporters of the hazardous substances, and; (4) persons who arranged for disposal or treatment at any facility containing such substances.

Plaintiffs allege the Moving Defendants fall into the fourth class, commonly known as “arrangers.” Section 9607(a)(3) creates strict liability for:

(emphasis added). CERCLA does not define the term “arranged.” CERCLA provides that “disposal” shall have the meaning provided in the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. RCRA defines “disposal” as:

42 U.S.C. § 6903 (3). The Ninth Circuit has held that “disposal for purposes of section [9607(a)(3)] refer[s] only to the affirmative act of discarding a substance as waste, and not to the productive use of the substance.” 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355, 1362 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2014 , 114 L.Ed.2d 101 (1991). Thus, the owner of a building who installed insulation which contained asbestos was not' liable because he did not discard the asbestos, but put it to a productive use. Id.

IV. DISCUSSION

Preliminarily, Plaintiff informs the Court of a change in the status of a case relied on by Moving Defendants in their motion to dismiss and discussed in the Court’s February 18, 1993 opinion, State of California v. Summer del Caribe, Inc., No. CV-89-3754 SAW, 1992 WL 487930 (N.D.Cal.). Summer del Caribe involved a manufacturer of metal cans which sold “solder dross,” a byproduct of its production process and a hazardous material, to a reclamation facility. The reclamation facility melted down the dross, sold the reusable portion to third parties and placed the unusable portion in drums. When the drums leaked, the reclamation facility was forced to perform a CERCLA cleanup and it sued the can manufacturer for indemnification. The court found that the can manufacturer was not liable as an arranger because the solder dross was not a hazardous substance, as it was not a solid waste, because the can manufacturer did not discard it, but sold it to the reclamation facility. The court’s holding in Summer del Caribe was explained in this Court’s memorandum opinion, yet played no part in the determination that the motion to dismiss must be denied. See Memorandum Opinion, February 18, 1993, at 7.

The Court in Summer del Caribe has granted a motion to reconsider and in a very thorough and thoughtful opinion has reversed itself on the issue of whether, under Ninth Circuit law, the term “hazardous substance” as used in CERCLA is to be given the identical meaning as the term “solid waste” as defined in RCRA. 1993 WL 147941 (N.D.Cal. April 14, 1993) at *4-5.

The opinion rejected the defendant’s contention that no “treatment” occurred at the reclamation site and that the reclamation site, alone, was responsible for the “disposal.” Treatment occurred when the reclamation process “changed the physical character of the solder dross and allowed [the reclamation facility] to recover the reusable portion.” Id. at *5. “Disposal” occurred when the reclamation facility buried the remaining unusable material. The Summer del Caribe court also found that the defendant can manufacturer was liable as an “arranger” under CERCLA. Id. at *5-6.

Moving Defendants argue that the opinion upon reconsideration in Summer del Caribe is easily distinguished. This is correct to the extent that Summer del Caribe does not answer the question of whether liability under CERCLA attaches to a party that delivers non-hazardous materials to a reclamation site. Nor is its holding binding in this ease.

A. Evidence of a Contract, Agreement, or Arrangement between Moving Defendants and Huffman Regarding Disposal of the Ash

Moving Defendants allege that they cannot be liable as “arrangers” because the deposition of Mr. Huffman demonstrates that they did not enter into a “contract, agreement, or otherwise arranged” for Huffman to “dispose” of the ash, even if they “owned or possessed” it.

Moving Defendants suggest that the Ninth Circuit in Jones-Hamilton narrowly construed the requirement that a contract, agreement or arrangement for disposal exist. Jones-Hamilton contains no such restrictive interpretation; the court simply found that sufficient evidence of such an arrangement existed in the form of a written contract. It did not reach the question of what other forms of arrangement are sufficient to create liability. The plain language of CERCLA (“contract, agreement, or otherwise arranged”) belies Moving Defendants’ argument that an arrangement need be in the form of a contract or explicit oral agreement. See Aceto, 872 F.2d at 1380 (“Congress used broad language in providing for liability for persons who ‘by contract, agreement, or otherwise arranged for ’ the disposal of hazardous substances. While the legislative history of CERCLA sheds little light on the intended meaning of this phrase, courts have concluded that a liberal judicial interpretation is consistent with CERCLA’s ‘overwhelmingly remedial’ statutory scheme.”).

Huffman’s deposition expresses his belief that no written contract explicitly regarding disposal existed. Based on the following colloquy, it is not clear whether Huffman believes any express oral agreements regarding disposal existed:

Huffman Depo. at 768:19-773:25. On its face, Huffman’s testimony is contradictory. He replied both “no” and “sure” to similar questions as to whether disposal was part of the services he provided Moving Defendants. It also is unclear whether his understanding as to the services he was providing arose from an explicit or implicit agreement or arrangement.

Moving Defendants contend that in answering “sure,” Huffman was not responding to the question posed, but was permitting Mr. Dintzer to state an objection. It cannot be determined from the deposition transcript that Huffman was not responding to the question posed.

It is also impossible to determine from the deposition transcript whether Huffman fully understood the questions posed regarding the term “disposal.” He was questioned using terms which have legal significance under CERCLA but different meanings in common usage. For instance, Huffman seemed confused, even after explanation, that “dumping” the ash could include acts beyond hauling it to a dump site. See Huffman Depo. at 785:3-789:3. When asked if oral understandings or contracts existed to dump the ash, if the term “dump” is interpreted to mean “being cast in the wind,” Huffman replied:

Huffman Depo. at 788:22-789:3. It is unclear whether Huffman meant that no agreement existed in which Moving Defendants allowed Huffman to dispose of the ash by letting it blow away (whether from the smokestack or from the piles of furnace ash).

Even if Huffman’s testimony is read as denying the existence of any express contract or agreement, there is evidence that Huffman believed an implicit arrangement existed between Moving Defendants and Huffman as to disposal of the waste.

The following passages are illustrative:

Huffman Depo. at 766:4-767:3. Additionally:

Huffman Depo. at 796:15-797:6.

Moving Defendants argue that they disclaimed any responsibility for the ash by allowing Huffman to keep it and sell it if he could. Yet, as in the sale situation involved in Summer del Caribe, Moving Defendants’ agreement with Huffman was “accomplished to get rid of’ the plastic insulation by means of its incineration. Whether the transaction is viewed as one to reclaim copper or to remove the plastic insulation, the Moving Defendants intended to separate valuable metal from unwanted insulation via incineration.

Moving Defendants do not contest that they knew ash was being created and that in most eases they took no steps to remove it. Plaintiff alleges that in the one deposition of a principal of the Moving Defendants which it has conducted, Robert Thomas Wilheim, president of Interstate Non-Ferrous Corp., stated that he observed insulated wire being burned at the facility and saw smoke rising in the air. It cannot be said as a matter of law that the transactions between Huffman and the scrap owners were simply for reclamation purposes rather than arrangements for disposal. “[CJourts have not hesitated to look beyond defendants’ characterizations to determine whether a transaction in fact involves an arrangements for the disposal of a hazardous substance.” Aceto, 872 F.2d at 1381.

Whether the Moving Defendants intended the ash to be a gift to Huffman, a sale to Huffman, or the rendering of a service by Huffman in disposing of something Moving Defendants did not want, “[t]he dispositive inquiry is whether [the defendants] intended to otherwise dispose of hazardous waste.” Summer del Caribe, at *6. By leaving the ash with Huffman, Moving Defendants rid themselves of the ash. ■

As did the can manufacturer in Summer del Caribe, Moving Defendants had three options: to not reclaim the copper and thus not create a hazardous waste; to reclaim the copper and dispose of the ash themselves; or, to contract with Huffman to reclaim the copper wire and through some arrangement have him dispose of the ash. No liability attaches under the first option. If the ash were disposed of improperly, liability clearly attaches under the second. It cannot be said, as a matter of law, that by shifting the task of disposal to Huffman under the third option, no liability attaches to the Moving Defendants. Avoidance of such inconsistent outcomes is the purpose of the “arranger” language in the statute. As the Eighth Circuit stated in Aceto, “Any other decision, under the circumstances of this case, would allow defendants to simply ‘close their eyes’ to the method of disposal of their hazardous substances, a result contrary to the policies underlying CERCLA.” 872 F.2d at 1382. See also New York v. General Electric Co., 592 F.Supp. 291, 297 (N.D.N.Y.1984) (“[Piersons cannot escape liability by ‘contracting away’ their responsibility or alleging that the incident was caused by the act or omission of a third party”).

Besides their unsupported argument that liability only accrues on the basis of an express agreement or contract, Moving Defendants overly discount evidence of an implied agreement for disposal. They cite the holding in Stevens Creek that “disposal for purposes of section [9607(a)(3) ] refer[s] only to the affirmative act of discarding a substance as waste, and not to the productive use of the substance.” 915 F.2d at 1362 . They note Huffman’s testimony that he sometimes sold the ash for $5 a ton, and argue that, by allowing Huffman to keep the ash (whether his keeping the ash is viewed as a gift or a sale), they were not discarding the ash but putting it to a productive use.

This argument fails for several reasons, the most obvious of which is that Plaintiff is not alleging that harm was done to its land by the ash which was sold but by the ash which was allowed to blow away (whether from smokestack exhaust or the piles of furnace ash which Huffman allowed to accumulate). No productive use existed when ash was allowed to escape into the air., Secondly, as the court in Summer del Caribe held in rejecting a similar argument:

Summer del Caribe, at *6. Finally, in the Moving Defendants’ role as “arrangers,” the proper inquiry is not whether their act in leaving the ash amounts to a “disposal,” but whether Huffman’s act in allowing the ash to be scattered by the wind amounts to a disposal. “Courts have held defendants ‘arranged for’ disposal of wastes at a particular site even when defendants did not know the substances would be deposited at that site or in fact believed they would be deposited elsewhere.” Aceto, 872 F.2d at 1381. As the court in Summer del Caribe held, disposal did not occur when the can manufacturer sold the solder dross to the reclamation facility, but when the reclamation facility buried the drums of unusable dross. Summer del Caribe, at *6.

B. Evidence as to Ownership of the Ash

Moving Defendants argue that summary judgment must also be granted because Huffman’s deposition demonstrates that there is no factual basis for the assertion that they retained ownership of the ash during the reclamation process. They contend that they .could not have arranged for disposal since they never had control or possession of the ash.

There is sufficient evidence in the deposition transcript to rebut Moving Defendants’ contention:

Huffman Depo. 762:15-24. Additionally:

Huffman Depo. at 766:5-767:3. Huffman’s statements can be fairly interpreted as meaning that the scrap dealers owned the ash at least until the time they gave or sold it to him.

Moving Defendants’ allegation only applies to furnace ash. Moving Defendants provide no authority for the proposition that, at the moment of incineration, the ash contained in the smoke came under the possession and control of Huffman, while they retained ownership of the wire.

V. CONCLUSION

In post-argument submissions, the parties disagree whether Moving Defendants’ motion should be dismissed with or without “prejudice.” While it appears that Moving Defen dants can not succeed in obtaining summary judgment solely on the basis of Huffman’s ambiguous and contradictory deposition testimony, a moving party may renew a summary judgment motion by showing a different set of facts or a change in law, notwithstanding the denial of an earlier motion. W. Schwarzer, A. Wallace & J. Wagstaffe, Cal.Prac. Guide: Fed.Giv.Pro. Before Trial § 14:367 (1992) (citing Preaseau v. Prudential Ins. Co. of America, 591 F.2d 74 (9th Cir.1979)).

Moving Defendants’ Motion for Summary Judgment is DENIED.

SO ORDERED.

. The motion was also filed on behalf of San Fernando Motors, Inc. At hearing, defense counsel represented that this entity withdrew from the motion. . See, e.g., Jones-Hamilton Co. v. Beazer Materials & Materials, 973 F.2d 688 (9th Cir.1992); and United States v. Aceto Agr. Chemicals Corp., 872 F.2d 1373 (8th Cir.1989). . See, e.g., Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313 (11th Cir.1990); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F.Supp. 651 (N.D.Ill.1988); and State of California v. Summer del Caribe, Inc., No. CV-89-3754 SAW, 1992 WL 487930 (N.D.Cal. June 30, 1992). . RCRA amended the Solid Waste Disposal Act ("SWDA”) in 1976. The terms are used interchangeably.