the definition of one word process and your decision will determine how far the government can stretch that term as an initial matter the process safety management standard t s m standard was mandated by congress in response to a series of large catastrophic releases of chemicals that each resulted in tens hundreds or even thousands of deaths congress required osha to create a standard that could prevent such releases and the b s and standard was the result because of its purpose to be isn't standard has only limited but even with the threshold quantity exists at a work site and standard doesn't apply to every square inch of the work site it only applies to the process that involves a threshold quantity of the chemical so the standard requires us to engage in a line drawing exercise identify the but rather than using its legitimate authority to address the tragic accident that occurred when it would osha decided to stretch the us and standard far beyond what a fair reading of the application can allow and beyond what is traditionally enforced in the standard this is a case   st impression st time that the review commission offer it has extended the p s m standard this fall and we're asking you today to reject or overreach now this case requires you to decide whether the p s n standard applies to a steam  process that one would that does contain its russell quantity of flammable gas but the f t c knew that in the steam boiler should be considered to be one process because of interconnection and colocation but in drawing the boundary lines of process this way threatens to make the reach of the now is a valid interpretation it will lead to absurd results you can apply the p s m standard to a water cooling tower because that power power contains water and has a connection to recovery process you could also apply it to the trickle panels they argu contain electricity and provide power computers that control covered process and even though it's obviously absurd you could apply them to a toilet on site that contains water and the water lines that is the same one that supplies water to a process now having addressed the potential effect of your decision here we want to turn to the specific way to misinterpret the definition a process in its decision artery pursued only a simplistic grammatical analysis one of a completely unmoored from established legal interpretive principles meanwhile ignoring entirely the purpose structure and history that is evident in the standard itself and is even more clear in the preamble to the standard now the supreme court has made it clear that properly inter consider the text structure history and purpose of the p s m standard including the standards preamble you'll have no choice but to reverse its decision now to affirmative decision and you have to adopt their specific text focused interpretation which is not the best scan would be considered part of a single process the preamble makes clear what the text is already suggested that p s m standard can apply to vessel like the steam boiler that don't contain highly asters chemicals if you reach the conclusion on on this element the case is over that the steam boiler does not contain chemicals based on that there is no way to extend coverage of the p s m standard to that vessel and we can on the analysis right there we can leave off the entire discussion of success now there's another element that is about the council this is just more sorry what about the word involving if you accept that this is part of the process arguments rely entirely on the preamble standard of the fact we're getting from the text of the standard i want to point out and this relates to the idea that interconnection requires proof that can be involved in the potential release that the text is the fact that one part of the definition could stand on its own and the other couldn't to conclude that the linkage between the holes and the relationship potentially is the dispositive means that it can only that it how how does sorry judge mort's again i'm not following your argument on that at all how do you how do you find that separate examples which are located stands alone that you can't how does that possibly stand alone as the phrase is clear to me that you've got to have that has to be the modifying phrase such that a highly hazardous chemical could be involved in a potential release your theory requires us to say that the that the trainee separate vessels which are located somehow spans all of your i would disagree that our services requires you to come to that conclusion if you look  so they both have to subject their both followed by which cause one is better able to stand on its own but they are a series of their items in a list and there is this post positive qualifier and we think we'll reach a conclusion based on the text that is in complete contradiction to the words of the preamble to the ocean was contradicting itself between the words of standard and the words of the preamble contemporaneously well why doesn't the two thousand and seven interpretation and think i'm looking at if you're going beyond the text that's the question here but if you are why did the two thousand and seven interpretations with the ponies have referred to all this question in that interpretation i'm reading in other words oh she's intent is that the phrase which are located such that a highly hazardous chemical could be involved in a potential release modifies respect to interconnected as opposed nestles why doesn't that answer this question if you're looking outside the text we are we would encourage you to look outside the text at the essentially what we would say the meaning of the standard the pla not appropriate for an agency to promulgate a standard to identify a meaning of that standard and to then later change the meaning of that of that standard we have to to get out of that for me but it's changed don't we have to accept your argument would have to come to the conclusion that the preamble read differently than the two thousand and seven interpretation letter and i think it's clear that those two things to read differently i need to make sure i stop so that i can reserve some time for m there are fifty five thousand pound vessels right next to each other in a row interconnected one vessel containing twenty five thousand pounds of the risk of a catastrophic release from those two are essentially the same given that words of the standard they focus on applying the fia's and standards to a process involving a chemical out or above the threshold the threshold quantity so without these words it would clearly not apply to a  vessel not containing a threshold quantity of highly had chemicals which is argument in this regard says rights of the regional standard only applied to a vessel which contains a threshold quantity we're going to add this provision that will extend coverage to vessels which all contain highly esther's chemicals and which added together contain that threshold quantity and also beyond that obvious and clear meaning of the text and adding t whether the commission correctly concluded that the process safety management standard applied to a boil it perform various process related functions for  the commission correctly determined that this language does not require the secretary to prove that a group of interconnected that schools should be could be involved in a potential potations the text that you are advocating here but i don't didn't see where you cited that two thousand and seven interpretation disgusting the extra extra outside the text and you did in your briefing alternatively address extra textual items various items to support your textual reading i wondered why you did not interpretation squarely established that the secretary is always believed that these were two independent conditions and that we had no obligation to prove that a that the purpose is to clarify the fact that interconnected containing a highly hazardous chemical would be considered part of the sequel process and quote is from the senate fifty seven  of the single process but only if they both contain a date or should adopt a just language because there was there was there was a lot of confusion but there was ok you know i mean interpretation makes sense that every process equipment is covered by stent and this is clearly process equipment because it's using the process involved in this context because the nd sentence that this is this is an example of what involved means itself so it doesn't have to say well you know it's just manufacturing  it's not true that there'll be no limit today to the standard as i said the commission plainly relied on process testing boiler performed that it cannot be found to be a success or based on one of three factors that it uses to conduct of all inquiry that fact of the safety of personnel is a substantial continuity of safety personnel world was not in at favor successorship because two executives impressed upon what he would to comply would safety that the investment simply doesn't change the personnel or the or the working conditions or any other factors i'm not saying so relevant but it just doesn't outweigh  how much of that was caused by the turn which event itself but new investment you know i think other cases have involved that not i think the there's no reason why i would expect a substantial continuity of the personality plant when making the decisions on a day to day basis process definition for example is ambiguous that you should defer to the secretary interpretation or the review commission's interpretation you never you never said that and so it would be impossible for release or code that would affect the characterization but it wouldn't affect the coverage or application of the stand and it's you know it's not true that there is ev miss mishap with the steam or oil could cause a release we don't have the burden to show that for group of interconnected vessels but they haven't shown eric kahn counsel for when you were finding osha's authority to issue repeat citations exists to punish the same employer who makes the same decision to violate the same rule more than once to try and avoid that punishment some employers have engaged in sham transactions that allow them to continue the same business just under a new name that's why i asked rick adopted its three factor substantial continuity test so those employers could not escape the heightened consequences of their repeated decisions to violate the law if you remember only three things about successorship from today's argument let it be these three st the primary purpose of a strict successorship is to defeat those kinds of efforts by employers t purposely or they'd repeat liability gaging and sham transactions the commission has only applied successorship four times ever and each time it was in the context of a sole proprietor changing a company name and continuing to operate the business still under his own exclusive control c v r is acquisition of the refinery in this case was no sham it was a half one billion dollars arm's length transaction that brought the end of a new corporate parent to control the refinery on the personnel aspect of the task but i think it goes more towards the purpose of the test you know whether there is a sham transaction whether it was intended to just evade evade repeat responsibility rather than to actually engage in real commerce and make a proper transfer of control of a company the idea that this was a significant corporate transaction is relevant to the purpose of the successorship test not so much to the individual factor of who controls safety decisions but that is exactly where i said you know you got the nd important point i wanted to leave with you today is that that is the most important factor in the substantial continuity test for that very reason because it was in focus on the potential for a sham transaction is the continuity of the personnel who specifically control decisions related to safety and the best way to tell who that is as judge murphy noted is to follow the money who decides how much to spend and what to spend it on here after the arm's length transaction it was the acquiring c v r that decided to inject one hundred and thirty million dollars in capital and new capital for safety and that spending was personally directed c v r as vice president of safety and executive vice president of operations who had said counter to the refinery in the final point that's important understand about successorship is that the secretary asserts that the commission applied the wrong legal standard by not considering all three factors of a substantial continuity test but the reality is the commission did consider all three factors and in fact expressed specific individual decision said we agree that the last two prong of the three parts substantial probability to us was not that in this case and that the two companies are therefore not the same employer  way because this one factor relying on what you're saying doesn't even relate to the rd factor but it relates to whether or not it's an alter ego the expenditure of one hundred and thirty billion dollars circumstances and one thing they do say not just the commission in this case but the commission in all such cases as said that the most important factor not that it's the only factor and not that it alone decides the case but the most important factor is the continuity of safety decision makers and that's why in this case and in all such other similar cases the commission found that the so the factual evidence of change in decision makers or continuity of decision makers in the cases the find successorship weighs heavily in the analysis not that it weighs exclusively and that's exactly what happened in this case is that the commission and the administrative law judge found that there was substantial in fact perfect pure changeover in safety decision makers and that as that is the most important factor and as that breaking continuity was so busy complete that that outweighed the other two factors which it also considered and which it also reached a factual determination about and that totality of the circumstances but i don't believe it would be eric to do that your honor i think if you look at the case law from the commission on substantial continuity whether you call it substantial continuity or alter ego the history of the of the decision maker that is is essential to establishing continuity or to breaking continuity for purposes of the successorship analysis but we don't have to get there in this case because the commission did reach a factual finding about all three and it expressed that on balance the totality of the circumstances weighed in favor of breaking that chain of liability because the the change in so in safety decision makers was was so extreme it's important to understand that there is actually no interconnection of the vessels in this case to determine that there was actual interconnection review commission looked at a general purpose dictionary and then mis read it anyway the dictionary definition that the commission looked at says that interconnect needs to connect mutually or with one another if you look at a more technical dictionary like the oxford english dictionary it talks about connecting with the other to connect by reciprocal links the import of both of these definitions is that one acts directly on the other yes your honor you didn't make an argument to your reply brief is that correct we were responding to the government's argument that purported to establish interconnection here and in the briefing we did address that in our reply brief and even here your honor we would say most definitely that these two vessels do not act upon each other they do not correct directly connect directly with each other there are no she wanted to use the word connection to imply any level of connection they would have said so by using interconnections they imply something that acts more directly upon the other the other one i want to make your own and yes before you before you do that