good morning i'm bob peterson i represent technicalities the reason we're here today is the company was engaged in the alleged removal project to appear in san diego california and the in terms of complying with lead standard the federal osha led standard company had relied on technical data which they had accumulated at a previous job site in san bernardino california about six months before they had been removing lead  based paint or paint containing lead from a bridge in san bernardino county based on their interpretation of the lead standard you can rely on historical data rather than having that conduct in and initial determination of the presence of lead at the project you're working on and that is an exception to the regulation and frankly and one of the cases that council called our attention to a recent case  have no disagreement with the finding of the court in that case i e it's an affirmative duty on our part i think it's our burden of proof that we're going to try to establish historical data as an exception so you do not have to do initial determination we have to prove the valid validity of the historical day the way you describe it it sounds pretty simple they show up they ask you what are you doing you say we're relying on historical data from a comparable project but it wasn't that simple w actually i think it was at least in terms of that determination that is made when you start that kind of a project if you've relied on historical data that's full that's valid that has some so some reason to it then you do not have to do the initial determination which is really what drives this whole case because if if you do not make an initial determination the regulation suggests that you have to do certain things well you but in this case the technical things because the fact that you've done a previous job just a few months before on san bernardino relied on that technical data that it accumulated there both the soil samples the airborne samples the chip to the type of initial exposure assessment the techno had completed before starting the project and benjamin roundly said did not monitor because they were light on historical data from a similar job and readily agreed to provide colin of this with the documentation its think contacted ramle to obtain the documentation that the document didn't refer to reliance on historical data and then the story started to change to a bridge project project in san bernardino i mean so it seemed to be to use the george foreman analogy some going on when your client was asked what are you relying on actually because muhammad ali that used rope a dope but i could be wrong but in any case that's an interesting point you make because i think the administrative law judge just simply missed it is like he was in a courtroom with this here's what happened the secretary in her opening comments in her opening comments says that listen well and before that even the citation it's significant cites the san bernadino job it's cited in the citation everybody understands that the historical data involves the same bernardino job so the secretaries of counsel in her opening comment says that this is a significant issue the evidence will show that the place on which they purportedly relied was in san bernardino that's on in the a transcript the judge to the administrative judge law judge judgments as well now a little later on page thirty six he says well was there any originally represented as the source of the historical data i have no idea there was a comment that the industrial hygienist or federal osha entity stated she said well i asked mr gramley the day of the of the inspection i guess he was there the second day december twelfth and mr rarely mentioned something about a power plant it never came up again the whole case in two days of hearing dealt with whether or not the historical data that was being relied upon by technical things was proper to happen nothing historical data was our reliance on historical data accurate that's what this whole case was about i don't know where judge yet and came up with the concept that somehow we the hearing but you know the fact the matter is the judge judge edwin apparently relied upon this representation but it's interesting in his decision he says well you know i think it was a power plant i'm not sure mr romney's credible but nevertheless i'm going to deal with the technical data from san bernardino ok and so that's how we get to that that's how we get there but i was i was surprised to judge yet and would say that because as he himself  kind of sampling did you do in san bernardino county we're going to have to support the commissioner and watch that there's no substantial evidence to support it we're not a response to retry the case you know you're not supposed to retry the case and i think the issue is this the review commission is review commission they never made the recommission made no findings of fact they didn't review the matter we filed a petition for discretionary view they decided not to review it i'm not sure that this court i'm not sure about this so i'm not sure this court has to give the same deference to an administrative large a decision that it might have to give to the review commission if the review commission had reviewed the case where you said you accepted the premises of this case it was decided to us the third circuit case and i case that says we must stop all the commissions factional fines if they are supported by substantial evidence in the record as a whole i agree i think that is the law i think  and i think it's just a nice job whoever wrote that is he did a nice job of summarizing that part of that decision but again i don't think the commission had nothing to do with this case so again your honor i just don't i'm not sure that you would have to give that kind of deference to  decision i think it would have been different if the review commission had reviewed it and said yeah you know what i think i agree with this right i don't agree with that or whoever was whoever formed a review commission i'm not quite sure what i understand what you're saying the review commission didn't even read judge went on all i'm saying is we filed a petition for review they didn't accept it for review and they issued an order saying that you know that the decision of judge it was a decision of the review commission that's well and good and maybe that they adopted it then maybe that warrants some kind of deference by the court for the findings of judgment you know we do that frequently we say for the reasons given by the district court in its opinion of such and so even in published cases we affirm and her judg historical data if you want to accept those from san bernardino did not meet the requirements for use of historical data the previous operation did not have workplace conditions closer was among the work practices etc etc so they adopted that is their decision by an order that's why i agree that's exactly what happened all i'm suggesting is is that if the review commission itself had taken the matter up on reconsideration and had reviewed the record itself i don't know what the outcome would have guns would have been that's all i'm suggesting are you saying this is not supported by any substantial information i don't think it was i think the judgment yet was totally wrong i think he was totally wrong i think there's no evidence he had two points that he makes just two points that he makes he says one the data from san bernardino does not establish exposures to any degree of accuracy well here we are words ingrid you know we're looking at a bridge which paint off a grid if you look at the chip sample now that's a lot of samples from that bridge and all of that the three airborne samples in the bridge showed no detectable levels of lead the dirt samples all of which were in the around and around  bridge showed a small very small amount of red in the dirt that ship sample interesting late enough showed seven hundred thousand parts per million in the chip sample now  chip sample from the navy and says ok here's an example of the bridge is an example the paint you're going to be taking off in the the structure here in san diego that ship sample is fifty four thousand parts per million not seven hundred thousand and fifty four fifty four thousand obviously much lower we now know that we have dirt samples we have airborne sample the san bernardino we're doing exactly the same job in san diego we rely on the results of those seven samples out of san bernardino for dirt three air we rely on those we know now that san bernardino there were seven hundred thousand parts per million in that ship that we got out there we got fifty four thousand stand you to go any reasonable person is going  let's let exposure in san diego and in fact there was but there's another problem to the judgment points out under section one thousand and twenty six point sixty two documentation is required if you're going to use historical data for the initial sense assessment the completed a valid initial list exposure assessment if you don't have documentation that you have documentation that's what all the that's what all the sample data from san bernardino is for they that's what we litigated i know you have to have documentation in your initial assessment and you didn't refer to that at all he says when are two things wrong with with another two things are wrong with judgments decisions one there is no requirement in the regulation or documentation for historical data if you look at the regulation  well you've got to have you should have some accuracy and confidential and confidentiality levels of paragraph ten deed there is no paragraph ten d in the regulation so for judge yet and to suggest that there is some kind of documentation requirement we're coming out of the exception of historical data all we can do is read the regulation and comply with the words of the regulation that are set forth in the regulations there is no requirement that regulation for any documentation is one hundred fifty miles away different place a different project for another project without having some kind of documentation that what you're doing is the provides that the historical data provision of the regulation provides precisely that as long as as long as the conditions are the same as long as the sample results are the same everything and in fact like i say you know what what was what were you taking the pain off and appear another structure yeah you just blasted off with these machines two employees in san diego are using precisely the same equipment there and they're in moon suits they're in respirators they're doing exactly what you do what we did san bernardino there were no changes in what was being done and i think that's why the regulations just  if the conditions are think the regulation uses the workflow slee resemble as long as they closely resemble each other and you've got accurate historical data and that's all you have to have to satisfy that exception good or bad ok i'll see the last argued by the secretary at the hearing level and the judge accepted the fact that no no initial determination was made in this matter based on a very strong credibility determination but more importantly than everything that counsels bring up for the first mostly for the first time during this oral presentation techno has not raised this issue before the court took no only obliquely referenc aspects of this credibility determination in a few footnotes in its brief therefore the issue was not properly before the court and the court should accept the judge's credibility determination  record of such determination to do one two and three and that's exactly what we're talking right and in the appendix of the stated osho elaborates it says that there must be a record of the relevancy now at the hearing and i guess again during the appeal th just wrong the standard of use the saying the commission has an opportunity to review the decisions if either the employer or the secretary file the petition for discretion review the commission can in its discretion not review the reviewed this case the commission is supposed to give special credence to the credibility determinations of the of the l j so that's an even stronger reason why the court should affirm based upon the credibility determination  employee exposure over the power these arguments miss the point the point here is that the standard required techno to perform these took to provide these interim protections prior to the completion of  by have some bearing on whether the violation here was serious or not and whether the judge properly characterized the violation is serious however techno does not challenge this aspect of the judge's finding until i thought no and it's just with the few minutes i have left researcher time i'm not sure your honor about this recordkeeping business when you look at when you look at this is a long regulation this is not an easy regulation understand when you buy don't for a contractor and so when you look at that regulation you can only read it see what it says when when the historical data exception is indeed three and d three three tells you what you have to do to satisfy that historical data exception determination that you're supposed to document things that's correct point and there's no documentation but let me ask you another question on the other side says that what your client did was try to compare an apple an enormous let's assume that we're dealing with what they said they were dealing with they were trying to compare exposure with data about that at all we don't know what happened on the eleventh of december we don't all we know all we can deal with oracle they're all vacuum attachments and we know this is number one you were using you know vacuum attachments on december eleventh when the when the inspector went out there for the first time they were apparently not using the vacuum attachments right no question about that that's all we know does the historical data come from a project that was using vacuum and yes it does how do you compare i think what you say is well look tell me then in other words the time later the averages for lead exposures are it's like noise or anything you weighed in on an eight hour time weighted average everything is based on an eight hour time weighted average are running the sandwiches go chronicle news presses if you've got a lot of high noise for the hour they're run in the newspapers the other seven hours you've got a minute in a room where there's no noise at all so it averages out so you don't have an exposure the same way with lead so we have an inspector that comes on the job sites as well i didn't see any she comes here late today i didn't see any any attachments we have no idea what they were doing we have no idea what they were exposed to we have no idea how long they were exposed to it i agree with your violation they have the burden of proof that burden i think shifts to the employer if they're trying to establish i would agree with the court in its decision that bryson whatever it was i would agree with the court there that burden for  r historical data shifts just but put yourself in the shoes of technicalities they do all of the samples they have exact us your honor what what did they do out there in san bernardino i don't he was an answer was that's correct and if you look at all the data which of course nobody really wants the secretary doesn't want to admit is look look at the dirt samples as well for both of those peers look at those dirt samples secretary doesn't want to address the dirt samples because they show no lead in the dirt to speak of that's the problem now counsel you know that day their own data at san diego which was good data for m pelletier who standing downwind of mr rat of h at the time of these samples what is that data show no exposure even approaching the action level in other words no one was exposed to anything unsafe at either job and there's no contrary data to that their own data shows that mr pelletier which was exposed to lead below the action level they did it right at san bernardino they did it right at san