good morning may it please the court and louise bets for the secretary of labor the secretary respectfully urges this court to reverse vacate the commission's decision and affirm the citation against seward ships dry dock for a straightforward argument is obviously unusual but it's a complicated question this is come up very often because the fines aren't much and you have a disagreement with the commission winship presumably is very important to the small it's going to cost them more to appear here than just pay the money that's correct and as your honor stated this case is important to the secretary of labor because the commission's decision sets an adverse president nationwide  rather see that come somebody representing the commission's doing right there the commissions the lower court so you know that we actually don't but but to fully answer the question no this happens very seldom typically when an employer challenges a case even with a low penalty amount it's because it has an ongoing interest in its record because it has an ongoing interest in maintaining a practice that osha's told it is unlawful or for a similar reason that sort of affects its future interests here i think to the extent the employer's only interest they are still in business and under the same ownership but they no longer operate a dry dock so they are the same legal entity they were when osha issued the citation but they're not doing this work anymore so they're not doing this type of work that's correct but that's my understanding yes the actual issue in this case is unlikely recurs that's right the only interest in the party is the penalty which as you mentioned is employees welding in confined spaces below deck on a barge to visible welding fumes containing numerous toxic substances including iron oxide and carbon monoxide and causing respiratory symptoms that employees complained about to the employer and despite all of these conditions indicating a potential that employees could be harmed by this work the employer didn't evaluate whether respiratory respirators were necessary to protect their health paragraph do you want three requires employers to quote identify and evaluate the respiratory has hazards in the workplace this evaluation shall include a reasonable estimate of employee exposures to respiratory hazards close quote the threshold question in this case is respiratory hazard the standard is perfectly clear that where there are respiratory hazards the employer has to evaluate those hazards including a reasonable estimate of employee exposures what is hazard mean here in the actual pres of contaminants those that mean the potential presence of them it means the actual presence of such contaminants under conditions that pose the potential for harm was that argument that's the wrong argument for you to make suit doesn't survive if the question is what is the standard require and that question is answered by looking at the words of the standard and other in disha of its meaning and in this case the secretar interpretation and application of the standard reflects its best reading so the key term in this case is respiratory has is respiratory hazard and the word hazard is commonly understood in defined in the dictionary to mean something that could be dangerous something that could be dangerous when you look up hazard in the dictionary it says a condition that could pose harm and so so the question here is whether the conditions at seward's work site visit a visible welding fumes filling a confined space knowing that that i'm trying to help you so for your refusing my help but there's the following argument i mean honestly if the other side before you see the fumes that's right that is to say it may be the of the hazard is the fact of your exist and therefore the obligation is triggered by the mere fact of going hazara mean that's correct as an issue did you make the same argument to them we did your honor we argued below that the standard applies wherever there's a reasonable possibility of employee exposure over exposure and it particularly that the question of what does the word hazard mean and you get a nice job your brief to us of demonstrating that the word has or is used elsewhere in the structure then the regulations in this sense but then and you're well we want them one of the problems in this case does relate to the way that the issues were raised and briefed this issue was raised by the commission and its decision that you know the secretary had no notice or there was no no need they didn't ask you to brief the question they didn't ask us to brief the meaning of the word hazard they asked us to brief whether the standard applied in the secretary's position all along has been the same applied because there was a reasonable possibility of harm to employees given the type of work that they were doing and that still our position here the emphasis on the meaning of respiratory hazard emerged after the commission's decision given its odd emphasis on the word v without any analysis of what the word hazard  right so the commission concluded that because the standard only requires employers to evaluate the respiratory hazards therefore it only applies where there is an actual over exposure that's me the strongest counterarguments your position is where this thing is where this section is which is under a heading called personal perspective protective equipment  the commission said that this subsection was added later yes so the respiratory protection standard has existed in some form for decades the current version of the standard was promulgated in  eighty eight and in that promulgated in this provision was added but the but osha explicitly noted in the rule making that it was added to make explicit a requirement that's always been implicit in the standard that you can't comply with the standard and determine whether respirators are necessary in the st place without conducting the assessment required by this provision and in the preamble to the standard  the secretary made clear that the purpose of this of this i won't say new requirement but new provision to make the existing requirement clear was to determine whether respirators are necessary and there are other indicators in the preamble and in the structure of the standard and also that you know the fact that this provision was added after the fact also sort of reinforces the secretary's position that it's not just limited to how t select a respirator once a determination has been made that respiratory protection is necessary there is no way really to determine whether respiratory protection is necessary without doing this assessment what what the standard says is that if you have a respiratory hazard you have to do a reasonable estimate of employee exposures and what the commission did is it looked at the ocean inspection but now by the time the ocean inspection took place the violation had already occurred as judge fletcher noted the violation occurred before can be rude to assume that a respirator is necessary because you're selecting among red among respirators you're not saying who are your to use one or not now if that's true that means you've already identified the need for a respirator and all you're trying to do is figure which one you're going to use and that then supports the commission's decision that this this whole section doesn't come into play until you know you need a respirator not just because something might happen but because something isn't happening so how do you respond to that i mean at best best i can do it that's the best of the missions argument well what paragraph d the opening paragraph of this subsection says is the paragraph requires the employer to evaluate respiratory hazards in the workplace and again that's consistent with the secretary's position that of course the standard only applies where there are respiratory hazards but the question is what is a respiratory hazard and based on the plain meaning of the word hazard it's anything in the air that could pose harm to employees and so what the employer needs to do is evaluate workplace conditions that constitute respiratory hazards where they're actually present hazardous substances in the air and where there's the potential for those substances to harm employee health i mean the auditing here i mean it this is just at a place it's clearly out of place because in  example i just terminations of weather and you could use engineering controls or whether you can use respirators it's just floating there by itself and how out of orders but is there any is preferable or has to be general respirators or any other section that says this no your honor this is the provision requiring employers to conduct the respiratory assessment to determine whether respirators are necessary and one of the reasons perhaps that the order of the standard doesn't reflect the order in which employers would be doing things is related to the fact that this provision was added as an amendment after the standard had been existence for quite a long time it wasn't know the other the other reason is that determining whether a respirator is necessary it does require an estimate of employee exposures but then the determination of whether respiratory respirator is necessary is actually made by would evaluate hazard in the sense of what is likely to happen if i go down into that enclosed space and start welding that is to say any some simple regulatory regime would have the policy that the secretary is arguing for why is the commissioners had concerns with from prior practice or just that they had an intellectual objection if you think there'd be other opinions place in the world well this hasn't come up before i mean even in this case the employer secretary argue that test in the n t sometimes but we asked for prayers well the commission asked for supplemental bring it in they did so you know that this case got decided on the issues that the employer raised the reasons that the employer gave for its actions the employer never said i didn't know i needed to do an assessment the employer said i didn't assessment and then the commission inserted this issue into the case and requested supplemental briefing in that supplemental briefing the employer never argued that it has or doesn't mean hazard in the way and then the commission issued this decision without even acknowledging that it was assuming this narrow meaning of the word hazard and emphasizing the words the and coming down with this interpretation of the standard that makes a key provision of the standard you know that that that that that was a just that but not in the scram that's also unusual although if you look at the commissioner's dissent it is it surprised me and i don't understand why that commissioner greed with the legal principle if you do look at her dissent when she analyzed sort of the conditions in the work site what she did determine is that these conditions the conditions that were present before osha did this monitoring did it a case that there was a chance of employee over exposure to to the pal she or her position was that therefore respirators are necessary but that's not the secretary's position in this case osha doesn't require respirators unless you know there's actual and actual overexposure  although the last sentence of the regulations says where the employer cannot identify or reasonably estimate the employee exposure the employer should consider the atmosphere to be ideal age which i assume needs immediately dangerous to life or health and and valuation do they get an order saying do the identity and if you're fine for that or they get an order saying you have to respirators you mean the abatement of the violation in this case yes well so in this case the abatement would be that before exposing employees to conditions that pose potential harms for respiratory hazards you need to identify and evaluate those house and i read that last sentence is saying if you write through it you have to have a respirator so what that means is that when you have a situation where you're sending employees into an environment where you really have no way of knowing how extensive the exposures are going to be you have to put them in the most protective respirator possible now i think in many circumstances employers have a pretty good idea of what kind of respirators going to be necessary based on prior experience based on objective data and so what they would do is they would put employees in the respirator that they think it's most appropriate while they test the air to determine whether a different respirator would be better and look i want to have one of those case don't like to respirators that's right and workers don't like the respirators and respirators do pose other problems so in this case if what the employer had done was test the air and determine that it was above a pal which is certainly possible that they would have been required to put it mistreated in engineering controls in place so it could be that the actual abatement in this case if they had done a respiratory statement sussman indicating the potential for exposures or actual exposures would have an engineering controls in which case employees would need respirators at all but we don't know what that assessment would have looked like because sewer didn't do it it didn't get the information it needed to determine whether it needed better engineering controls in these entirely unventilated tanks below deck on a barge or whether it was safe to put employees in those sort of obviously dangerous conditions without getting the information it needed to keep them safe