we'll begin with american recycling versus the secretary of labor good morning please the court my name is marc true and i represent the petitioner in this matter american recycling and i'd like to make four points please the first is concerning the blood borne pathogens stand citation here i would submit the a l j applied the wrong legal test the test that he applied which was incorrect is whether an injury resulting in bleeding was reasonably foreseeable in woodworking activities that the incorrect legal standard if you turned back the phrase that caused a little bit of confusion here is in the definition of occupational exposure they talk about foreseeable occupational exposure and i would direct  the preamble and in the preamble ocean gives examples of what they mean by foreseeable occupational exposure they give the example of a surgeon operating on a patient and during the operation it's foreseeable  duties of operating will bring you into exposure with blood yes or leaning up lot after something different from good science a choice yes or here that is not the ordinary duties of someone cutting wood is to cut the wood to build the pallet this is not there are other osha standards that deal with small test like that incidental or occasional exposure is not covered by the blood borne pathogens to enter the spend it is dealing with people who deal with and there is a log that suggested that there had been prior private for prior injuries but there is no discussion on the extent of the exposure of the measures that were taken i would submit foreseeability of injury is not the legal test that was conferred intended by this standard then the test here is what we are ordinary duties and the ordinary duties of a surgeon is to work with blood ask you a practical question if we were f finding an error with respect to one citation well there's dire consequences for a company on repeat violations it's one hundred twenty five thousand dollars for repeat violations and if the standard applies there's a great deal of work that has to be done into the terms of developing a program developing procedures training providing hepatitis c vaccines there's a great deal of work in a great deal of expe that is associated with compliance with making ten ten thirty your own or let me ask you you know you you had an incident where someone lost their hand i assume you've put in some kind of standards and protocols in any you know well there are there are discussions about how incidental exposure and here what was done was exactly appropriately they provided latex gloves for the cleanup and they pu here there are occasional injuries osha understood that in the workplace every workplace has theoretically a court room you could have a paper cut they did not intend this to apply to every single work instance there are two other osha standards  one fifty one requires you to be able to provide immediate medical care through a clinic or through an ambulance system in one thousand him one thirty two d requires you to evaluate the hazards of any task and to decide whether or not you need protective equipment there are general measures in place and they were applied with you did the company call on outside personal to handle blood in the event of a workplace injuries misread the company call on alcide personal to handle blood they did for the disposal when they had things cleaned up they called in an outside third party source which is how we handled in the future why is that not a matter of foreseeable blood injuries the individuals that are called here who specialize in work that is their regular job duty and they would be covered by the standard where's the evidence supporting that the company actually called in these people that is in the record sure i can provide that i was not in the right his research is not  just the impulse to clean it up there is nothing more than an so i would submit that the wrong legal standard if you applied the standard that it is foreseeability of any injury then you would if you would look at the preamble you'd expect to see a whole range of other industries discussed things like butchers carpenters woodworkers all of those other industries they work what was discussed through the preamble or people primarily in health care field doctors pathologist morticians people who have regular and ordinary job duties and here you have incidental job duties this standard is not applied the second point i'd like to turn to is deals with the whether there was a risk of an explosion hazard in the workplace it's undisputable evidence that there are five elements that are must be present in order to have a dust explosion to occur and in this case osha feel to offer any proof as to two of those five elements the quantity of dust that's required both on the expert documents that were put in the end of ph documents and in our own expert is that you need a minimum volume of dust that is one inch thick covered over a thousand square feet and there is no evidence here that that threshold quantity of a thousand square feet surface area was ever introduced into evidence if you look at the four little piles that osha had photographs of you might have something that's eighteen inches by four inches which is a little less than a half of a square foot the industry standard say you need at least a thousand square feet so the evidence is off by a factor of two thousand in addition to that when you look at the judge's discussion he quotes an n f p a six sixty four document that has a two part requirement that you need a pile that's an eighth of an inch thick plus a thousand square feet he exploded he just ignores in the quote the second not sure i understand your response no ma'am there is a scientific test that a small portion of the dust was combustible they take up they run it through a series of tests but beyond that once you have that test you still need a threshold quantity of a sufficient amount in order to have it's not just whether the few grange that are tested whether explosives you need a sufficient quantity you need an eighth of an inch pile by a thousand square feet so just in terms of volume of dust there was inadequate volume as to the minimum explosion concentration that's another element that's required in order to have explosion there was no proof offered by the government you know what i'm saying is that the minimum explosion concentrations measured in forty grams per cubic meter that's the standard measure for a minimum exposure concentration for a wood dust and our export pointed out that that evidence  that for us to decide this there is if you look at all the definitions in the record the definition was ignored so yes there's a significant error factually on the record just the mere presence of a little bit of dust he has four small tiny little particles just that is in adequate dust in order to cause a dust explosion the second error is that the dust has to be aerosolized and it has to be airborne so that it spread out over a cubic meter of air the our expert explained that you need a minimum explosion concentration into the air and the dust was located in a confined space so that evidence was some proof that this had become airborne wasn't it i mean i know you're arguing that different inference is should have been drawn but we we can only reverse if it was in a way that the agency could have made the findings there is no way that this finding is supported by the facts in this record the judge said at some time there was some evidence of airborne dust his conclusion and opinion is ever the fact that it's some time of waste is ignores the fact that the five elements that cause an explosion have to occur simultaneously you have to have all five at the same time you have to have the airborne fuel you have to have the right ignition energy you have to have the appropriate confinement your argument is i take it it was understand it is that the snafu in this case had to provide of some evidence relating to all of those things in order to substantiate citations the government had to put that together in its entire case yes sure those are the fundamentals of an explosion and it didn't occur there is no evidence inches on this west corner frame of the dust collector and a quarter inch to an inch on the frame of the pass and tell us why that evidence was inadequate not there is no evidence adequate because you have to show that there is a volumetric calculation that the dust is spread out over every choir that is required in two places in and if be a six sixty four but it is the industry standard for articulating how a dust explosion occurs and what are the required elements for an explosion all of the technical information for an explosion is set forth  sixty four and if you look at the elements that are discussed today you can see where the government failed to meet its burden of proof requirement that only when it reaches that level can the government say you  in violation of the housekeeping standard i mean i would assume that you really suggesting that it has to reach the point where if the sparks fly the place will go up in flames that only at that point you know should of the risks associated with that you do not have to agree the n f p a standards it is a hazard not when you reach the full minimal explosion counter and it's when you get to twenty five percent there are all sorts of safety measures built into that uber department is bound by the n f p a standard if we are going to be elitists is that your position to prove yes or to prove the existence of an explosion hazard there has to be some sort of technical evidence or data and then you have to have the evidence to show that that standard was met and when you measure what is offered by the n f p a standard we had  first the blood borne pathogens standard the pathogen standard makes clear in ten thirty b what occupational exposure means now american recycling has repeatedly attempted to add adjectives to the definition of occupational exposure it means re contact with blood or other potentially infectious materials in the course of employees duties now doesn't mean that has to be frequent doesn't mean it has to be routine it doesn't mean it has to occur normally but means that there's a factual determination of the court has to make as to found that the blood borne pathogens stand applies is first looking at the nature of the work looking at woodworking and what they do and in this case they you saw and they use materials are likely to cause cuts and scrapes and other injuries that are likely to cause bleeding and then also look at the injury logs and notice that they had for injuries over the previous two years which likely resulted in bleeding and then would presumably have required someone to clean some blood up and then most importantly we know that after mr le bron's injury employees actually did clean blood as part of their job duties there's a pool  this distinction between a good samaritan act and one that is reasonably anticipate and i think that's what is getting to the good samaritan act when an employee voluntarily comes to the aid of another injured employee in order to provide them first aid in that instance they're not performing any work that is part of their job duties or simply just acting as a as a good as a good coworker would what's different is that in this case these are maintenance employees who work for the plant manager and although injuries may or may not have been infrequent they were nonetheless reasonably anticipated based on the nature of the work that the company is involved in and its history of injuries that involve bleeding it could have foreseen that this is a task that its employees would be asked to do care that you're doing anything other than offering this safely you will have the kind of terrible accident that we're talking about here and that seems to have been fortunately not the case that this was a typical occurrence so you've got three incidents where the logs show lacerations related injuries but what you say about that is they likely caused believe you have no evidence that they did cause bleeding or that anyone the workplace was required to clean up the lot so we have this one incident and now you're saying they were in violation of the pathogens standard what am i missing  nature of the injuries from the descriptions there's one case there's one injury and there was an employee missed fifty one days work do or do the laceration from using a dismantle or it sounds like a very serious injury and from that and from the other testimony about  what kind of work they're involved in from the compliance officer came to the conclusion that this was probably a serious injury looking also at the injury that mr le bron's suffers a serious he's clear that it's a serious blood injury  the and and what why would we allow such an inference when obviously there are ways of finding out i mean it wouldn't be that difficult and we're otherwise we're holding this employer in violation of a blood pathogens standard all right i think i would just to circle back to the point that even if cleaning of blood didn't actually occur on those of after those events there was still notice then to the employer that they would reasonably anticipate that there's going to be blood spilled at those facility and it could require someone to clean it up you know your your instruction instruction is the occupational exposure analysis has to be fact based and tied to the tasks and employees and maintenance employees clean things and that's how the l j reach this conclusion that after looking at the response to mr le bron's injury it's incumbent upon these individuals to clean the ball another are formal job descriptions for these maintenance employees that say they shall clean blood but we can infer from the circumstances and how they responded to an actual industry that the responsibility fell on them as the l j said it's not an american cycling can't escape responsibility for this by not having anyone designated to clean the blood after a bleeding injury and one other point i'd like to make is that the preamble does say as we discussed in our brief the preamble remove the language from the proposed version of the rule that would have limited the definition of occupational exposure but in response to comments which said you're going to want to cover incidents that while infrequent could nonetheless be reasonable and to subpoenaed the secretary agreed it remove that language so it's contemplated this very scenario the toughest it does next  or not the l g used it to the t is there morse is no more specific standard and significant and excessive that is the that is the terminology that is developed in the case law because the housekeeping standard so the housekeeping standard requires that workplaces be kept clean that could take us to an objective reasonability test to determine whether or not the evidence supports that the employer failed in that regard in this case it's abundantly clear that they did compliance officer d testimony makes that clear as is his photographs as is the admissions from mr meindl the vice president of the company and mr santiago the president of the company that they had problems with their dust collection system that it leaks that doesn't fly argument is that there was insufficient having covered all the fiber evidence as we discussed and being shown in the photographs all shows us as well as the previous fire that occurred at the workplace at all tells us it gives us evidence to support i think the accumulations were in fact significant enough to create these hazards now the n a six six for use also does not fail it is also evidence of this violation that is because you don't have to have her might precise measurements to establish that one eighth inch layer of dust exists this is clear from the eighty's daily things are supposed to be used it's always us to look at all the dust of the silver you need to look at the ceiling joists if you look at the dust on the walls on the equipment all of this comes together to build that one eighth of an inch dust layer what we're really concerned about here is that something's going to disturb the laying dust and suspended in air it's going to create a dust cloud and potentially an explosion so when you look at all of the dust that that has been captured particularly the photograph is exhibit three in the record is a great photograph of the ceiling joists it's very very clear there are heavy amounts of dust on the ceiling joists that alone is sufficient to cover this five percent surface area criteria because as n f p a six floors annex tells us as an engineering principle five percent of ceiling joists cover  accumulations on ceiling joists cover five percent of the surface area and for steel beams it's up to ten percent so looking at that one inch accumulation alone we have the surface area criteria would be would be covered under that additionally  membered it should be remembered that this is concerned with the potential for explosion hazards as well so the concern is not that you don't have to show that the dust is already floating in air we're talking about the conditions that are likely to give rise to this kind of hazard company had heightened awareness that the pop up some moved in walked prior to being anchored to the ground it's also clear that the company had a heightened awareness that the football was not protected against accidental activation despite awareness of those hazards they did nothing to to  correct those issues or to eliminate exposure to those issues rather to require their employees to continue using a defective piece of equipment that alone substantiates willfulness fought characterization of these violations on top of that we have a wealth of general evidence here that shows we'll take a center advisement and try and get you a decision as soon as we can thank you