i guess the concern that when insulation has this citations are a significant fact they affect the company's ability to continue to do business all those citations are on the internet when you're preventing jobs qualifications require you to explain things in their civil actions their work comp actions the district attorneys in the state are now looking at employers when they have serious violations in terms of the possibility of criminal prosecution and of course the contractors the license board has statutes that provide that a license can be suspended or revoked event of a serious violation of this nature so the matter is significant so we're going to structure course our standpoint this is really the first the evidence as i'm sure you read it i guess the problem is is the judge in my opinion made some some significant errors and while i realize a substantial evidence test controls this kind of  review there has to be evidence to support the substantial evidence test and in this case when you look at the way you look at the evidence there seem to be a number of things that we've found wrong with it not the least of which is the finding that that morning why not because we were excavating and backfilling the trench of the pipe in the ground if they're going to be dumped i think and you just keep excavating as you're going and in your back going if you're going everybody realized that that morning that existed which he himself would use that morning to get into the trench so i think the regulation is as long as you within twenty five feet of whatever he is would be a ramp or a ladder or whatever but that's fission to comply with the regulations and the evidence at least in that regard seems to be pretty the judge didn't even address the biggest is the ramp not stating a fact the facts establish that mr alomar was within twenty five feet of the ramp therefore the couldn't have been a violation or subsection but i think that mr comments were critical when i asked mr palomar about the work that morning and the day before he said look he said that when we left the day before the trench had collapsed it was never it was never in the morning and that's why it was and we left on the eighteenth the trenches collapsed it was too late in the day so nobody did nothing about it well you know that's not the case i mean everybody concedes the fact that there was not a problem on the but he was not a credible witness yet i believe that the judge again you get into substantial evidence to ask the question as well who's credible and who isn't and the only witness that really was not charlie credible was mr  obviously barclays relied considerably upon mr palomar as testimony perhaps understandably there has to be credible when if when somebody says to you now the trench was collapsed the morning the nineteenth and you know that wasn't the case well then you have some questions about credibility but i think also that one of these citations dealt with a lack of training and so you go into these hearings and you prepare to defend hearings based on what you're charged with in this case starts with two fellows not having been trained one of course with mr palomar been working for nine months with the with the employer and all of the things you know why do you think that's what you would charge i'm sorry think i floated out here in our opening brief in our reply brief asked the ocean's attorney specifically who had not been trained it was mr palomar and the deceased worker that's that was the answer so then as a defense lawyer you say ok what i have to do now is present evidence as to why these fellows were trained well the deceased employee nobody knows so that's that wasn't the issue so the question was mr palomar mr palomar like i say he had been working for williams for nine months and that's what they do they dig trenches and they put pipe in and they fill the trenches and they just do it day after day there's nothing unusual about this operation all the other employees that testified said we talk about safety every day so then what someone else out of context and brought him and said well you didn't train them with you defend against that hearing because the osha lawyer said specifically it was a deceased employee and mr palomar i mean that's a kind of situation you get into so you look at those kind of  things the administrative law judge and you say you know that just doesn't make any sense how did that come out it's where did that come from and so i think that when we talk about substantial evidence that's the kind of thing we're talking about well do we have credibility can we rely on who can we rely on properly trained nobody each of the going down there without shoring or some time to actually try agree with you that's very true no question about that i mean and that's you know i've been doing this for thirty years i mean i see it all the time you train and you train to train and people do things that are that are unpredictable i don't know i mean you can't predict or but his actions i don't think there was any management representative there that morning there's certainly no testimony the man is representative of the where these two fellows were going to be in the in the trench deck morning because  remember exactly what they were going to do was they were going to have heavy equipment working at both ends that excavation and so they're going to be excavating the east and back going to weston heights already in the west so there was no reason for anyone to be in that trench that morning and when the pump you know you're on i don't think was forseeable in those situations not when everybody understands at the end of the day on the eighteenth i guess it was that in fact we're going to be doing tomorrow morning we're going to  we talked about safety every single day to be king of all the ships all the time and so i can tell you right now that the regulations as i say have been doing this a long time a very specific you don't cross every t and god every when you're talking to construction workers about what's safe or not safe use common sense exactly what j p said she'd go out there and when it's a long time there's never any change in the procedures exactly how we do it we've been doing it for months before winter for months afterwards nothing changes and don't going to transfer when we've got big heavy construction equipment in the trench i don't think it would be fair to attribute some kind of knowledge or lack of instruction by any of these individuals said fifty five years of experience was out there with these particular individuals it's a lot of experience they know what they were doing they've got a great safety record up until now so i did the pumps were still down there while they removed the my name is join the hall on behalf respondent secretary of labor in the once of one williams employee this trench was a bad situation it was ten to twelve feet deep and rose vertically from the bottom for five feet before its low back at a forty five degree angle at least forty to forty five feet long and water seeped into it almost constantly from a nearby river and on the morning of september nineteenth two thousand and two there was no showing in the trench or any type of cave in protection whatsoever that morning contradicts the statement he gave right after the accident that he saw the employees in the trench to l j properly credited that prior statement because he determined examples testimony at the hearing appeared hurst and was implausible this credibility on the eighteenth but that's irrelevant for the purposes that we're considering here also i'd like to just point out the billions of races that for the first time in their reply brief here so their argument about palmer's testimony on the eighteenth should be waived because it was never raised in the opening brief that also go tampa and that they would go to him if they had safety concerns while williams tried to contend that j p was the supervisor on the site lopez said that he thought j p was just a member of the crew and palomar didn't know what under these circumstances it was permissible to impute service knowledge of the employees were in the trench to williams even if the actual knowledge had not been established which we believe it clearly is by the record l j also properly the term that williams had constructive knowledge that the employees were in the trench because one has failed to exercise reasonable diligence to keep the employees out reasonable diligence requires adequate supervision of employee use and adequate training programs and work rules to ensure that the work is safe williams had none of reasonable diligence would include adequate supervision of the six employees on this work crew but there was no evidence that williams did anything to keep the employees out of the trench on the morning of the nineteenth there was no warning to keep no barrier around the trench and no instructions not to enter the ens to be a competent person you must be capable of the done a fine hazardous working conditions and you must have authority to correct those hazards osha has long interpreted the standard to mean that you have to know the osha standards in order to be a competent person the evidence established that both j p and sam but didn't know the osha standards they were completely unfamiliar with them and didn't know the duties of a competent person without this knowledge they could not qualify as competent persons so whatever inspection they did on the morning of the nineteenth site because williams is principals employees did not know the regulations they were incapable of instructing the employees in the in those regulations mr peterson's position that that has to be sensical way that you don't stand up and tell punter instruction workers the details of the regulations but rather what it is they need to know that's completely incorrect osho is very clear that common sense does not substitute for the specific instruction required under the not in fact instruct its employees including its principals j p and zambo weren't trained nor were palomar and go forth problem i had only worked on this site for about a week although he had worked for williams for about nine months his previous experience with  testified that they didn't receive training on other days including on the nineteenth they weren't told to stay out of the on shore trench what about the contention that the person who had to be trained was changed yet again that's completely incorrect put on notice that any employee who worked in the trench had been trained that was what the violation was about that was what the evidence established a trial and that's what controls example and lopez testified generally that safety is discussed all the and if there are no further questions thank you very much is defined in the regulations has nothing to do with osha training has nothing to do with any of that the definition of a competent person and so on page ten of our opening brief and footnote three it's an individual who is capable of identifying hazards and has authority to take prompt corrective measures i didn't say anything like oh she would like it to say you see the problem you fix it that's a common person by their own definition again like i say we had fifty five years of experience out there so for me to listen to the fact that we didn't have confidence individuals out there running this project also i kind of hollow has kind of a hollow ring when you read the definition of a competent person and i can tell you if we had a ladder where that ramp was was more than three feet from the other end so when you have to have something in the middle on a logical thing with a lot i don't think you again your honor maybe that is a legal issue i don't know when you read the regulation you have to have some means of access in twenty five feet the ramps within twenty five feet of the ramps within twenty five feet and that's all you have to have you don't get into these kind of technicalities when you're kind of when you're trying to perform construction activities the ramp was there mr palomar had used that very morning apparently according to his own testimony that was within twenty five feet and frankly it may have been a lot more than that because we don't know how far that ramp extended into the trench we do know that they were a long ways away from the east end because