unusual but it does happen on occasion that the secretary and commission you disagree with your stearman i thought you know and i can't figure out exactly what the hierarchy an agency within the department of labor the secretary of labor has delegated her responsibilities to the assistant secretary of  well we could the department of labor through osha could promulgated regulation that are standard that says all such violations of the standard are serious and i  think that's your question yes we've never done that and i think the reason for that is that the well two reasons one is the factual permutations are are so great that it may not it doesn't make sense to astonish him or the board it's better to develop these for adjudications in a case by case basis the other reason why is that i obvious you don't need expert testimony to tell the judge when a man's working by an unguarded age devolved stories up that if you fall is he's going to hurt himself and that's a serious violation and when the court reviews the case law that examine the question of a serious violation you'll find that although it is the secretary's burden it's not a hard burden to me t judges may rely on their own commonsense and their own experience and the d c circuit has gone so far as to say that a nail jamie used any plausible circumstance that may lead to see a serious harm as a basis for finding a serious violation before you go further mr sherman if i may that related to the subject th judge floater asked you i was curious about your conclusion in your brief that if you were to prevail in this particular proceeding that we should  i did judge her under the statute it is the commission which is an independent body that makes the final determination as to the penalty amount it's not osha it's which is a different entit osha makes the original proposal of a penalty and then when that gets contested before the commission the commission then judy gate's not only the validity of the citation but  the final appropriate amount of the fine so the commission should proceed to the secretary this yes in this in the sense of determining what the appropriate fineness around now we believe  penalty the proposed penalty but when we charge and prove a violation it has to accept that and the problem here is that it established an improper legal standard by which to judge the again contested or why should it have to be proved again but it would only go back for the for the appropriate fine ok the existence of the violations or look no longer in dispute and we asked the court to affirm the violations it's serious but then once that's done that the commission has just the discretion of issuing a fine between zero one dollar and seven thousand dollars now we believe that the commission unduly lowered the fine to only three hundred twenty five dollars per violation when the l j found eight hundred fifty and we think that's wrong because  there was the commission never accepted the mark testing which showed the gravity of the violation and it and it misclassified i think the bigger point is that i think the commission find out i mean you know this for this company the difference between three hundred fifty dollars and one thousand nine hundred dollars is nothing in the i'm a big company and we're not and we're not talking about that many violations by setting an incorrect legal standard as to what the second theory had to prove well that's right and that's really what's at the heart of what we can well absolutely that that's the main issue when you see the that's that's our main problem here is not it is that they reduced serious violations to other than serious violations and i know in some context that's important to companies because it's a serious violation might be a black mark on their record when they go to get government jobs they started out by saying earlier that i heard you correctly that the commission is required to accept the find well when we prove when we prove our case it has to accept that but it did not in this case it did well is it put on the on the department on the secretary and unfair an incorrect legal standard purpose in this much is the a l j has already said that this was a serious violation but established a somewhat different penalty some tell me to whom we  leave aside it legal standard that the secretary has to show the employees suffered actual exposure to assess this i really i really think that's the heart of correct that's correct that's their problem and they and where did this i guess i have to ask your friends on the other side where this came from because it didn't come from any r i've got one of the questions mr sherman let me just take this a little bit down the road if we remain to the commission and the commission does not come up with the same penalty that the secretary came up with are we going to see this case again not likely you're going to the secretary very really i can't think of any instances in which we repealed just the fine that the determination of the confused as we are going through the door here in land yes ok first of all the secretary takes the position that actual exposure is required and that the commission acquired actual exposure to asbestos in order to prove a the commission determined first of all that you did not have to prove actual explosion i quote from the reports of the commission's decision with respect to violations involving exposure to was fast as the secretary need not prove actual employee exposure in order to establish a serious violation but she must demonstrate that the potential for harmful exposure existed for it though it's not an actual explosion that's how about the potential for exposure or possible exposure that's correct right that is actually one of the workers could be exposed to yes that's correct the in fact they are the commission actually follow this court's decision and trinity in articulating the burden of proof required to prove a serious violation and i quote from trinity as such the question is whether as a result of the failure to test and notified it was trastevere it was possible that an accident could occur in which it was substantially probable that death or serious physical injury would result in the in the commission's case they've basically synthesize that same standard and applied it conceding that no actual exposure was necessary but that the burden of proof was on the insulation or t s i that was the material involved in the trinity case it was an insulating blanket underneath the brick wall in a furnace and in that particular case thermals thermal system insulation is the in class one what makes class one very unique and different from all other kinds of as best as work is the class one under the standard has a unique and special presumption that any time you do any work with c s i you are presumed to be exposed to dangerous levels of this passes merely by doing the work if you look at the trinity rulemaking process for the standard and they finally acknowledged reading the legislative history here that there are all kinds of different applications all different kinds of this best this can be bound up in all different kinds of mediums and material construction this is a eyes that's correct or the one thing there was no disagreement on with respect to the standard was that thermal system insulation and that spray on insulation things like that could create frya ballistas as that is where it goes airborne just by unquestionably a serious violation so you begin with the basic proposition and trinity that the material there was presumed as a matter of law to be present at the workplace and could cause serious injury now if you take that presumption then failures or violations are clearly by definition serious we have no disagreement with that the question however is this the standard excludes class two from that presumption specifically on the face of the standard and that's in the provision for f to double i which is in the standard itself there is a provision that calls for initial determinations that must be made to determine the presence of a specialist in the workplace in that same provision f two i is a clause a provision that says when dealing with class one which are only there unless you do a negative exposure determination in the first instance there is a presumption that all employees doing any work with class one material from this case yes i are presumed to be exposed to levels above the permissible exposure limit that is dangerous levels by everybody's acknowledge provision applies to class two while judge perry said at the end of trinity actual knowledge of the presence of his best this is the relevant not because it is presumed but rather because a violation of the regulation does as there and that therefore the standard didn't even apply to what they were doing the presumption we were talking we're talking about here goes to the issue of the potential of fact of the presence of as best as here in the fact that it can be harmful the the issue in class two is made clear in the fact that without that presumption the commission following this is the standard set forth in the training case simply said the secretary in the first instance has the burden of showing that there was some possibility that the work being performed on the material involved could result in an exposure which could be serious and harmful to the employees so you could have a serious or in ice and here you can no evidence at all other than the fact that there was as fast as content in the material they introduced no evidence whatsoever to show that the work the manner in which the work was performed on the material in question could have produced or created an after it was reported that there might be as best as in the material the results of that mock test were credited actually by the administrative law judge in the case who said that it did was a fair replication of the work that was being performed that day access to the same material as conoco phillips they could have done a test they did no tests they could have called an expert to look at the material they called no expert they could have done an analysis through literature of the fact that the mast here somehow could release as best as fiber but they did no such study they introduced no such evidence and that's really the key of the of this case is the fact that the secretary having offered no haste specific evidence is arguing that the court here ought to find a serious violation merely because they found the presence of this that's not in the clear right here should find and serious violation because they are j found a serious violation  a commissioner thompson one of the commissioners in the review commission made a very interesting observation in a footnote in in the commission decision that is he mentions the fact that the the particles particulate that was  in the case none of which was identified as fast as some very very small amount that was found was not even breathing zone data it didn't indicate that this was material was being the t even potentially breathed by the employees it was  background information or area sampling it did not test within the breeding zone of the employees doing the work as a result of which he said that under any analysis that osha could use you can't rely on background test data to determine whether an exposure and insurmountable evidence your burden on the second well i mean and that that really is the that's one of the three claims of the secretary and  conflicts with this well established understanding of the substantial probability requirement of twenty on us and six x six you are ok i don't think there's any i don't think there's any disagreement here that secretary actually offered no evidence at the hearing below with respect to exposures potential exposure to asbestos what they say instead is they're entitled to a presumption that anytime you work with as fast as your entitle to the presumption that you're going to be exposed or possibly exposed to dangerous levels of this vests and that is belied by the specific provisions of the standard itself and that point was more valid than the i have a note here from my review of the record on the if this is correct or not on september twenty second in the occupational and safety administration compliance officer went to decide to have multiple samples two samples tested positive for israel says the amounts of twenty to sixty two percent that there is wrong or are actually if you read the administrative law judge is a vision she specifically discredited and all of the samples done by the compliance officer in refused to consider them because the in her opinion this is the compliance officers own data fail to identify that the material  even came from the subject mastic only one piece that he actually took off the mastic itself was tested at zero no that's festus in it whatsoever so she did not rely on any of the compliance officers  exposure and that's evidenced by something very important right in the standards you read section eight of the standard which in the introductory part of the standard it's recognized that roofing tiles and roofing  are exempt from the standard not withstanding the fact that these types of materials have very high as best as content up to fifty percent in many cases in all that's required is a possibility to as best as you want to include in your midi seri well two factors both the possibility of exposure to a specialist as well as the detrimental impact of that exposure to show that it has a likelihood of serious injury or death yes but it's still the possibility of exposure which was the standard  the commission required the secretary to prove here the secretary of the option of putting on that proof and he may disagree and say well i don't need to call that recent case but it's called the burden of proof the prosecutors the secretary of labor they moving parties always have the safety health review commission decision is correct it says that the secretary has interpretations of their own standards on title to deference no disagreement with that however you need to read further in that opinion because the supr they're entitled to deference so long as it is reasonable the interpretation itself and conforms to the purpose and wording of the regulation now this is an important distinction in this case as i mentioned at the outset this is a case where the presumption that law of exposure which they are attempting to the facto include in this case or class to material which is not covered under that presumption is reading a new requirement  standard that would not be acceptable even under the c f and i still present that is only a reasonable interpretation this is making a substantive change in standard which we believe your honor would be a substan for that reason we don't think that the martin case stands for the proposition that the secretary of labor can engage in this sort of facto rule making by interpretation i believe in this case it would be inappropriate for the court to to find that that osha excuse me that the commission was was required in this case of the earth to the interpretation being offered by the secretary of labor this was commission i beg your pardon i didn't say the commission i'm saying that trinity state that the court must defer to the secretary's reasonable interpretation correct your honor and if the fact is that it's a reasonable interpretation as  quoted earlier no disagreement our view is this is not a reasonable interpretation adding a substantive presumption or all types of distrust as even though they are not included within that presumption in the standard would not be a reasonable it is we have to rely on the people that congress said put in in charge and to say that we well i think you're  your question your honor regarding whether or not this is just a matter that should be resolved in the secretary of labor you know this is these are all various departments of the sort of that's right partner labor and isn't that what we have going on here and that's why we have administrative bodies and with respect to the secretary of labor and the solicitors and osha yes i agree with that but not the commission that so the commission is the one independent body within this administrative network that has the independent authority to decide not just penalties but also to decide whether or not violations are serious non serious or diminish and that's really the independent issue here at stake and that was the issue and mark was the review commission's right to decide these issues or whether they were required to defer to the to the secretary's interpretation and in our view they are required to the for but only for the interpretation being offered as in this case is my you say is reasonable is reasonable that's all right or wrong and consistent with the standard thank you thank you but to the probability that an accident having occurred death or serious injury himself the existence of exposure k that quote says that the accident has already occurred when you translate that to mean as fast as violation the exposure has already occurred if all this talk about the mock testing and whether there was an exposure is irrelevant at this point in the proceedings and that's the problem with the commission standard is it's requiring the secretary to prove that there could have been a harmful exposure now once the existence of the exposure is assumed as it must be at this stage of the proceeding then we're just talking about the medical consequences that can flow from that exposure the room making record as recognise that within these within these different kinds of work there were some exposures that were and some health risks that were greater knowledge that of what the secretary  points out in the room making record is the differences in these classes is not major they're very minor and when you look at the standard the vast majority of requirements apply to our classes  commission here really has the the tail of the dog wagging the dog by pointing out one particular difference in which class one work is treated but for the vast majority of protections and especially when we're talking about the violations here the type of class of work is irrelevant what we found in the room making record is that it's posers at levels below that can be read the briefs in this case if there is an apartment house in which i live and eight pipe carrying water or carry any other substance in the apartment that you don't know what that there is a possibility that within that pipe once it is repaired there could be as best as exposure that is sufficient to get a serious violation recorded and i'm giving you this hypothetical because i want to know at what point does the problem which does not disclose what inside occur we have a pipe here the broke and they chipped away and we have ended up in court what happens in the ordinary case which you tell us it doesn't make any determine whether it's the presence whether there's a specificity there i mean they're also very that's what they did here they tested me now that there was some that every time they hike fractures every time up there's something of that happens in a construction project that we have a serious violation of basically the that's correct of it if they didn't do anything so when you're talking about class to work in which the employer does nothing to protect the employee that's going to result in a class in a serious violation and i think the trinity