communication standard revised in two thousand and twelve for the past twenty seven years since one nine hundred eighty seven who should regulated the grain handling industry pursuant to the greenhead lease and during this entire period of time written in the context of of this particular industry which has been regulated since one nine hundred eighty seven is are you making a stop marking because they've never done it before they can't you're now in some sort of handling standard but it also covers other you can impart a more complete here is that the the grain handling standard is very potentially undermined by this final it's undermined in a number of respects it's undermined because for example the greenhead one standard has very specific requirements with respect to we treating it trains with respect to the explosion hazards means when it's put next to that very specific employee training requirements in the green hills and that's one example the green handling standard focuses on one eighth inch thickness of dust as an action level and d what does this all mean there are a number of different standards that osha points to in its guidance but with respect to compliance with the undefined combustible dust provisions of the final has come but but that's what you see here one of the things that we're in fear of of is undermining the grain handling standard because of all of these other ski interests that can be picked from in comparison to the one eighth inch  that comprise and fine combustible dust these standards focus on one and in its size and the standards were all over the place including goshes n e p standard which which says you know regardless of of of size or shape so they don't have it the size criteria so very concerned that would be undermining the grain handling standard by asking the industry to focus on different standards when it's and living under the green eighty four has come standard as it relates to green there's there's nothing new in the proposed rule and it doesn't deal in our view the regulation itself doesn't deal with anything other than was adopted here and then to its definition of combustible dust in a separate room and what we're seeing your honor is that we should have had notice well i never went through that with you yet but we sure had a seat at the table and i want you i mean what did they have to do to alert you that they're proposing this approach in light of global efforts here well i think the for one thing if if the preamble wing which in two thousand and twelve final rule had been in the proposed rule or in the advance notice of propose so they're learning here and there but there was no reason in the life of a twenty seven year in force from history to believe the new proposed rulemaking new approach then they why aren't bound always the file and i have followed the so that it would now john with the agency's preferred interpretation we think that's exactly what happened in this case and then also the court's holding in d'amour in the sense that's your logical outgrowth argument and i understand  why not well for a number of reasons you've always had this approach before you say to the agency there is this grain dust standard out there and until you a can pick pick any standard and apply and if you need guidance come see us that because that following that how does that undermine the progress that has been made into your brief either the grain stand but it's unclear that that that's that that's where it's going to come out in this why have deleted i don't know why exactly well you're assuming in the now we don't know either so i mean that doesn't support your case but the actual citation that was left in that case for him if it was agreed to him which you know i mean i'm not suggesting enforcement people are you know don't make errors so they pulled it back handling standard regulates grain explosions in grain handling facilities among other physical hazards it doesn't contain any requirements for labeling for safety data sheets and it contains less specific and less comprehensive training requirements from the hazard communications standards they address different hazards and osha has always taken the position has began publicly interpreted the hazard continue covering it as it always has the g h s the globally harmonized system revisions to the hazard communication standards were meant to harmonize  hazard communication standard with a globally harmonized system of labeling him classify hazards to improve the quality of information about house or its again this is an information transmittal standard to employers  employees from exposed to those hazards in the workplace because of the way the globally herman a system changed the hazard communication standard and the way that hazards for classify osha had to treat interpretation it made clear that combustible green vest was a hazardous chemical and that employers needed to comply with the labeling safety data sheet and information and training requirements of the hazard communications standard just under the standard has not changed osha has consistently reader reiterated that position over and over again and has never taken a contrary position even if there were some logical force to the petitioners arguments that they thought they were covered by the hazard communications standard just because they're covered by the grain handling standard the first paragraph of the grain handling standard explicitly states that all other provisions of nineteen ten facilities and that would include the hazard communications standard also with respect to their similar arguments that they were confused about osha's advance notice of suppose room making in a separate room making those issues or were resolved in the hazard communication standard rule making that's at issue today and moreover though she hasn't issued a rule on com combustible dust yet so the idea that a future rule would somehow present preempt in an existing role particularly when they cover different hazards is simply a logical i'd like to address the issues that the judge griffith and just rogers raised about osha's guidance on how the hazard communication how the hazard communication standards treatment of comb generally accepted consensus standards out there and other methods including the method in the grand handling sander for determining whether brain dust presents a combustible dust hazard osha's said employers can use any of those charged rogers that in response to the petitioners claims that they didn't feel they could really rely on that guidance if ocean try to issue a citation essentially changing its interpretation and saying hey we told you you can rely on any of those standards but now we're saying u k s and we're going to issue a citation first of all as your honour's noted that's extremely unlikely to happen and second of all if it did that would be an  applied challenge there would certainly be a potential notice issue there if i should have told a regulated community they could rely on that definition and then tried to cite them when they relied on that definition telling them that that was no longer good enough advisory opinion speculating that their members won't be able to figure out what combustible just means under the hazard communication articulated in the national park hospitality association's case the purpose of the ripeness doctrine is twofold first to prevent the courts from entangling themselves in the abstract disagreements about administrative policies which is exactly what's happening here osha has made a policy decision to use the term combustible dust without a technical definition and instead to allow employers broad flexibility to rely on other excepted definitions out there  particularly strong here where in a concrete setting it would be clear that the petitioner's members in fact know what combustible thought and know that grain dust presents an explosion hazard as the third circuit noted builders case the propensity of grain elevators to explode has been well documented osha simply isn't doing anything confusing or controversial here it's merely extending the same coverage that has always existed under the hazard communication standard in a more explicit way because of the way that the globally harmonized system amendments to the standard changed the way combustible dust other otherwise would have been treated and she would ensure that the standard continued to be as protected as it issue that they have to show that the challenge language is big and all applications and that they would suffer concrete hardship what you strongly starting with it's not i don't want all your the standard appropriate here quote if by reviewing the regulations and other public statements issued by the agency a regulated party acting in good faith would be able to identify with ascertain certainty the standards with which the agency expects parties to inform the agency has fairly notified a petitioner of the agency's interpretation first of all even if all osha did was use the term combustible dust in the final rule again having given notice that combustible dust would be covered in the proposal the term combustible dust is not vague under the standard there's a broad general agreement about what it means but if you're asking for our strongest argument adopting a technical definition as part of this ruling so the preamble to the final rule gives additional guidance the term combustible dust isn't vague it's got there's broad general agreement on what the term means and to the extent that there might be some technical disagreement on the margins about how to craft a technical definition of combustible dust the twenty thirteen memorandum certainly takes care of any uncertainty that could be caused by that technical disagreement at the margins essentially as your honor if you're right your honor we're trying to make our strongest case i mean this case clearly isn't right in a concrete setting it would be it would be obvious that the grain industry knows that com case would know it i think right this is one of our strongest arguments but we don't need it even if this facial challenge were right that fails this court has made clear that reasonable breath and flexibility are permissible in the statutory and regulatory needed to craft a mathematically certain chap technical definition of combustible dust but that's not what this court or the supreme court requires the term combustible dust amply satisfies the standard articulated by th court that a regulated party acting in good faith viewing the regulatory text and the other statements by the agency would understand the standards with which it's expected to conform there doesn't actually seem to be relevant here it again points to the fact that the two standards regulate different issues the grain handling standard is concerned with the amount of dust in the workplace it has requirements for reducing accumulations of dust requirements like housekeeping and ventilation systems and prohibitions on ignition sources in dusty areas the workplace the hazard communications standard isn't concerned with the depth of dust in the workplace the hazard communications standard is concerned with making sure that and they're not confused about what combustible dust means and osha has issued guidance giving employers broad flexibility to use any accepted definition of the term including the definition the petitioners admit understanding under the  the two thousand and thirteen guidance document from osha and of course the two thousand and thirteen guidance document from osha post dates the publication of the has come final rules so of course that is not does not provide notice to the green handling industry regardless of what it says in advance of prohibition of the final rule and also it provides clarity as as to what what you're expecti again to to make this all clear or whether it's done it's just it's very very unclear there was a reference to the can bust the green handle in industry knowing what combustible dust is the green handling industry is focused on fugitive dust