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Case number 14-1254, National Distribution Services, Inc.

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Petitioner vs. United States Department of Transportation at Elk.

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Mr. Weissman for the petitioner, Ms.

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Lopez for the respondents.

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Mr. Weissman.

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If it plays the court, my name is Tim Weissman.

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I'm here representing the Petitioner National Distribution.

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From what I can tell, this case is a first impression on a particularly important issue for the transportation industry, and that is, under what circumstances can the DOT, in this case, referring specifically to the Federal Motor Care Safety Administration and the Pipeline Hazards and Materials Safety Administration, under what circumstances can they

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issue an out-of-service order without due process protection against the motor carrier private business.

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The facts relevant to this case are as follows.

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National is a small business incorporated in Nevada.

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I'm not sure what the big legal question is.

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They can do it when there's an imminent hazard that needs to be redressed before they have time for a hearing.

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Isn't that pretty settled?

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Certainly, if you look at the statute and the regulations, that is what those do provide, is if there's a finding of significant likelihood of death and injury or endangerment to a public.

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And you haven't challenged the statute?

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Correct.

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And you haven't challenged the validity of the regulation?

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Correct.

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So you're just challenging its application to you.

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Right.

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What the agency, in our view, has done in this case is applied a presumption, and that presumption is set forth in the light cylinder administrative decision that they rely on in their briefing.

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Which also does not explain the source of the presumption.

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The one before us, and I'm asking the wrong lawyer, I'm going to ask the other guy before us, says there is a presumption and it's that light cylinder.

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If you look at the light cylinder, the light cylinder says there is a presumption, it's that's nothing.

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So we have no explanation from the agency for the source or requisite of the presumption.

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That is our concern because this is a deviation from past practice of the agency.

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In the past, in the transportation industry, the agency has a number of enforcement tools to effectuate compliance with the regulations.

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Most notably, as we set forth in our brief, is the Commercial Vehicle Safety Alliance North America Out-of-Service Criteria.

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And that sets forth which violations of both the safety regulations and the hazardous material regulations

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are so serious and create such a safety issue that that truck or that vehicle or that container should be removed from service.

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Are you challenging the lawfulness of the presumption?

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Yes.

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Why would you argue that in your brief?

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I read it all as applied.

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I think by arguing there was no evidence.

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That's a substantial evidence question.

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That doesn't mean they can't have the presumption.

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Are you arguing that there was a substantial evidence to support the presumption, or that the presumption itself is unlawful?

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We're arguing that it is arbitrary and capricious for them to take that presumption with respect to any violation of the hazardous material.

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It has been pretty bad.

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certainly there is evidence of non-compliance and regulatory violations there's no dispute there I would I guess argue somewhat that the facts in this case are bad for national if you look at historical records for national they have had a

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comparison to industry averages is what the FMCSA looks at when they issue safety ratings and determinations to motor carriers, they've had a fairly decent safety rating.

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You also have here, more specifically have here, a number of tanks on the road that have not been inspected per the regulations, some of which at least have had weld repairs that were not done

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seems too far-fetched to think that that could create a danger that the reason for having those inspection requirements in the first place is to protect against danger.

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So your facts are not that good.

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Maybe we could send it back so you have to do a better job of explaining why this causes the danger.

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But isn't it fairly reasonable to conclude that if you've got uninspected rigs up there, you've increased the danger to the public?

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Well, that gets into one of the issues on the factual side is these tanks were all manufactured in accordance with DOT specifications.

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They were all manufactured, but that doesn't get you anywhere.

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Right.

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Go ahead.

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And one of the issues with the inspection is that they had been inspected and the inspections were noted on the tanks themselves.

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The problem in this case is the tank inspector

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on some of these tanks, not all of them, some of them had been inspected by other registered inspectors.

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What evidence did you have of that in the record?

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What evidence did you give them of actual inspection by registered inspectors of some of your tanks?

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We filed a motion for reconsideration after the initial decision where we submitted.

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That's a little late.

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Of inspection.

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Does the agency have to let you put in evidence you could have put in before at the motion for reconsideration stage?

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They do not allow our motion for reconsideration.

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Do they have to?

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They do not.

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Was that evidence that didn't exist at the time they initially asked for your inspection records?

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There was evidence presented to the agency of the inspections.

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There's several hundred exhibits in filing there.

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I believe there are some inspection records.

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You believe?

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They tell us that you didn't give them any inspection records by authorized inspectors.

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And you wouldn't even give them a list of all the tankers that you had.

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Is that accurate or inaccurate?

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We believe we did give them a list of all cargo tanks that were under our control.

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Some of those, what the confusion like in the process was that some of those tankers were permanently leased to other carriers and so they were not included in the initial inventory of vehicles because they were not in our possession or under our control, under a leasing arrangement.

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As to the inspection records?

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As for the inspection records, as I mentioned before.

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Is there anything in the record you can point me to that shows you, before they made their decision, providing them with evidence that your tanks had been inspected by an authorized inspector whose license hadn't expired?

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There is evidence in the record.

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But again, it was submitted in conjunction with the motion for reconsideration.

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It's part of the joint exhibit.

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You see, I believe it is in joint exhibit 534 and 535 through 558.

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I think the bigger issue here is, does a missing inspection create an imminent hazard?

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Does it create a likelihood of death, injury, or endangerment to the public?

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There are literally thousands of hazardous material regulations that apply to these cargo tanks and the way I'm reading the agency's decision and presumption is that any single violation of those regulations in and of itself would be enough to constitute imminent hazard allowing them to

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place the company or place the vehicles out of service without any due process protection, which I think is over-broad and not consistent with the statutory language under 49 USC 5121D, which states that they first have to find a violation and then find that that violation causes or constitutes an imminent hazard.

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And here the presumption doesn't look at the individual violations to determine whether

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that violation is an imminent hazard.

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Suppose in the agency's experience, one in a hundred CMTVs that have not been properly inspected and so on have in fact hazardous conditions that do eventuate in an injury.

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And you have 100 vehicles out there, or 100 tankers out there, that have not been inspected.

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Isn't it reasonable then to think that, well, at least one of them out there is statistically likely to create a hazard, an actual event.

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And so we're going to have to make sure you inspect them all.

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I don't disagree that they all should follow the inspection, and that is a regulatory violation.

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Well, I'm sorry.

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Therefore, it isn't reasonable for them to say, this is an imminent hazard, because there are enough of them out there that it's likely enough to happen.

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Yeah, one of the issues I see is that there's a process that the FMCSA has in its regulations that looks at the number of violations and the severity of violations and determines whether that carrier has a satisfactory safety rating, a conditional rating, or an unsat rating.

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And that unsat rating would then be followed by an out-of-service order after 45 days.

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Right after this incident, the agency did a full-blown compliance review to make that calculation, and the company received a conditional rating, which doesn't result in an out-of-service order.

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So I don't understand, on the one hand, how under the normal process, looking at the same violations we're looking at here, they get a conditional rating which has no operational impact on them.

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They didn't like that result, so they chose to pull out the other gun in their holster and issue an imminent hazard order.

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There's no reason they can't use both guns, is there?

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No reason other than I don't believe there's sufficient evidence to support that the violations they found.

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Meet the death.

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That doesn't have anything to do with whether you've got a conditional rating under the other process.

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You yourself style them as two separate guns.

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I'm not sure why it's relevant that you pass the other process and what we're hearing is that you flaunt this.

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That is correct, but it seems to me that that

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In the normal process, the safety rating process, the agency having classified certain violations to be serious or acute or critical, that should be determinative on them as to whether that violation creates an imminent hazard.

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Why do I have to look piecemeal?

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I thought they were looking at the collection here of about nearly 80% of your vehicles having no inspection records by an authorized inspector given to them and unauthorized welding going on that resulted in a fatal explosion.

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Why can't they look at that big picture and say the combination of rampant disregard of regulatory requirements and safety requirements is the imminent hazard?

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Isn't that what they did here?

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They didn't separate it out.

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You want us to piecemeal it, but they took the whole package and said that's what makes this imminent.

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But the other piece, just a comment on that, is that under the statute and regulation, the out-of-service order has to be narrow-tailored to abate the hazard itself.

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So in their own mission, there are some of these tanks that have no safety or compliance issues.

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But the way it was narrow-tailored, OK, but that's a separate issue.

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So the narrow-tailoring issue, they've said, come show us.

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You won't give us the records up front, but if you come show us, then we'll clear them, and they've in fact done that, haven't they?

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They had a supplemental order that cleared tankers when you finally came forward with some records, so why isn't that what makes this nearly tailored?

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And here's where the due process issue comes in.

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Yes, they did release some tanks after we submitted records, but then that dried up and there's evidence in the record of emails where they've said we've lost trust in National and therefore we're not going to release any more tanks even though you've given us inspection records.

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They kept moving the bar further and farther and farther.

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which is why we're still here today, arguing the initial out of service order.

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When you say due process, do you mean constitutional due process?

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They're depriving national of property without due process.

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You have a post-hoc remedy though, right?

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We can get vehicles back in service.

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by preventing the evidence.

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Conceivably, though, the agency has refused to consider the supplemental records that have been submitted to release the tanks.

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I thought you did have some released.

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We did.

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We had five tanks released.

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Are you challenging those decisions, or are you challenging the decision?

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I mean, you could bring it up.

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If they didn't clear something, you could challenge that, but that's not before us.

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Yeah, I agree.

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That is post-business.

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Are these vehicles, are any of them still out of service for them to the same order?

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They are all out of service.

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What's interesting, and this might go to the imminent hazard issue, is the agency's cleared them to transport combustible product because they don't require a spec plate.

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So these trailers are being used to haul jet fuel.

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But the agency, in their view, considers it would be too hazardous to haul gasoline.

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Which is more combustible.

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Right.

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Yeah.

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More volatile.

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Two years have passed, or almost in July, something like that, two years.

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And the tanks are not rehabilitated and inspected and tested?

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We cannot reach agreement on that.

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Every time we think we satisfy them, they change the bar on us and want something additional.

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Thank you.

[00:16:10] Speaker ?:
Thank you.

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May it please the court, Carolyn Lopez, on behalf of the government.

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I wanted to first address this court's concerns with what exactly the presumption is doing here.

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I want to make clear that, contrary to what National has said today, that the presumption never gets the agency all the way.

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All it does, it doesn't... If you're doing this, remember that I'm interested in how the agency does get all the way.

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absolutely.

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You may well have the evidence here, but does the opinion need the fellow how you got that?

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Yes.

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So all the all the presumption is doing is recognizing that any time there's a violation of the hazardous materials regulations, which under the statute only apply to materials that have been already deemed by the secretary

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that they may pose an unreasonable risk when they're being transported.

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So all it does is recognize that statutory definition.

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But in every case, the secretary would always have to proceed, or here the chief safety officer would always have to proceed to determine whether that particular risk, whether the nature and magnitude of that particular risk was actually posed an imminent hazard, and whether the steps taken to abate that imminent hazard

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And where would we look in the safety officer's opinion?

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What's the JA reference that would answer that question for us?

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The chief safety officer's opinion is that the page dealing with the imminent hazard is at JA 33.

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33, JA 33.

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JA 33.

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Isn't that just where it starts?

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I think that's the first page of the opinion, isn't it?

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No, you're right.

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I have this complaint about the whole thing.

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My J.A.

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begins at page 37.

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Oh, there's two.

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Three volumes.

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I want to have two of the three volumes.

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I guess that's the reason I'm not finding it.

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At J.A.

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33, the third paragraph is where the chief safety officer discusses the imminent hazard.

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Which paragraph?

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The third paragraph.

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The paragraph that begins, in this case, not only were the provisions of the HMR being violated, but National was also engaging in unsafe practices.

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The Chief Safety Officer then does acknowledge the presumption, noting that what it does mean is that there is a risk posed, and then proceeds to analyze the substantial evidence of a wealth of safety violations here, which operate in conjunction to create an imminent hazard.

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Are you telling us about what the conclusion is?

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Are you telling us what the opinion actually says?

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Yes, the what the opinion does is 33 which I have located.

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I apologize for not having it before.

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The statute requires the finding of the violation and the finding of the risk before you can take action.

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Now you have good reference, I guess, to the violation.

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But what is it that tells us how the officer came up with the risk?

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Can you read me the partner?

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Don't tell me what it does.

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Tell me what it says.

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So one, the chief safety officer was looking both at the provisions of the HMR that were violated.

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I don't know what the officer said in this opinion.

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That's what has to justify what we affirm or reverse.

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The officer looked both at the violations themselves, which included from JA-33.

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from that.

[00:20:30] Speaker 00:
Why don't you just read the key language?

[00:20:33] Speaker 06:
That's what I'm asking you to do, is read the language.

[00:20:38] Speaker 00:
Okay.

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The officer found in this case, not only were the provisions of the HMR being violated, but National was also engaging in unsafe practices.

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And then goes on to acknowledge the presumption, which is just that violation.

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Where were you on the page?

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still in the same paragraph.

[00:20:56] Speaker 00:
I'll just read the other paragraph.

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Are you on 33?

[00:21:00] Speaker 00:
Yes.

[00:21:00] Speaker 00:
J33, third paragraph.

[00:21:02] Speaker 00:
Okay.

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As discussed in the matter of Light Cylinder Company Incorporated, there is a presumption that a packaging which is not authorized for the transportation of a hazardous material in commerce presents a risk of death, serious illness,

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Etc.

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And then the chief safety officer goes on to say based upon the entirety of the evidence that welded repairs were being performed by national personnel at nationals unauthorized facility that a fatal accident occurred while the workers were performing unauthorized repairs in violation of section 180.413 at the direction of national and

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that the only person testing national CTMVs had an invalid registration, that FMCSA's inspection revealed that a vast majority of the CTMVs were either overdue their periodic tests or had questionable repair work done, and that the CMTVs are used almost daily to transport hazardous materials.

[00:21:54] Speaker 06:
It's not just that... But the bulk of that sentence seems to be referring to the establishment of a violation rather than telling us whether that violation created an imminent risk.

[00:22:04] Speaker 06:
I want to ask you first about the reference to the fatal accident.

[00:22:08] Speaker 06:
That fatality did not come from the use of the tanks, I'm not going to drag you back to the acronym, the use of the tanks, but rather from an unauthorized repair of the tanks.

[00:22:20] Speaker 06:
There really has nothing to do with the imminent danger, existing or not existing, with reference to using them for the normal purpose.

[00:22:27] Speaker 06:
And I'm not seeing in the sentence that you're reading to me, a great deal that tells me

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about why there is an imminent risk.

[00:22:35] Speaker 06:
You've got the violation.

[00:22:38] Speaker 06:
But I'm not seeing how the see the chief safety officer reached the conclusion that this created an imminent risk.

[00:22:46] Speaker 00:
One.

[00:22:49] Speaker 00:
What the chief safety officer was doing there is relying on, as Judge Millett paraphrased earlier, the rampant violations of these incredibly important hazardous materials regulations.

[00:23:03] Speaker 00:
And if I might

[00:23:04] Speaker 00:
direct you to the underlying language of the particular regulations that were violated here.

[00:23:10] Speaker 00:
So in 49 CFR 180.407A, the underlying regulation itself says that if a cargo tank is overdue or has not had its testing properly done, that it's not to be put into service to carry hazardous materials.

[00:23:28] Speaker 06:
We don't know why in the dry

[00:23:30] Speaker 06:
In this particular case, you want to know what the basis is for the CSO determining the imminent risk created by this violation.

[00:23:38] Speaker 06:
The CSO tells us there is a violation, you tell us there is a violation, and perhaps it should be the case that the violation creates a presumption of risk, but it doesn't make a lot of sense.

[00:23:48] Speaker 06:
that the statute and then the regulation would require a first day violation and then a risk if we're going to presume the risk from the violate.

[00:23:57] Speaker 06:
Maybe you can, but I don't know where you get that presumption.

[00:24:00] Speaker 00:
I think what's a little bit difficult here is that the nature of these violations is so egregious that it's a little bit difficult to disaggregate the initial volume.

[00:24:12] Speaker 00:
that exactly they both the nature and the volume of the violations here are so egregious that it's a little bit difficult to do that.

[00:24:19] Speaker 06:
Fairly undifficult or easy to written a couple of sentences that said that your view is the basic fine sentence does that we're not supposed to be on a postdoc explanation account.

[00:24:29] Speaker 06:
We're supposed to have it in what we're reviewing how the records support the complete

[00:24:36] Speaker 00:
The government's view here is that although short, the chief safety officer made clear that he was finding an imminent hazard based on the totality of the overwhelming evidence of widespread violation and systemic lack of safety controls.

[00:24:53] Speaker 05:
There's another problem with that summation that he gives based upon this evidence, that XYZ and so on.

[00:25:01] Speaker 05:
One of them isn't true.

[00:25:03] Speaker 05:
Medina was not the only person inspecting the tanks.

[00:25:08] Speaker 00:
On the record... I understand that.

[00:25:11] Speaker 05:
So that leads me to the following question.

[00:25:14] Speaker 05:
Because you're going to say, well, any evidence to the contrary didn't come in until reconsideration, a petition for reconsideration, correct?

[00:25:22] Speaker 00:
No, I was actually going to say that under the governing regulations, so under

[00:25:28] Speaker 00:
49 CFR 109.19 which govern how the petition for review works.

[00:25:34] Speaker 00:
National was in fact obligated to produce any additional evidence that it wanted to produce and it didn't at that time produce evidence of inspections that were not.

[00:25:43] Speaker 05:
There are a number of cases in this court in which evidence comes in appropriately at reconsideration only because

[00:25:52] Speaker 05:
the opinion that's the subject of the reconsideration introduced some fact that could not be anticipated and was wrong or arguably wrong.

[00:26:04] Speaker 00:
The National was well aware at the time that it filed its petition that the issue of Mr. Medina's last license and the fact that he appeared on the record at the point of the initial eminent hazard order, that that was part of the basis of determining that they had not been properly inspected.

[00:26:25] Speaker 00:
And Nationals still didn't come forward with evidence.

[00:26:27] Speaker 05:
And I do just want to... They didn't request a hearing.

[00:26:30] Speaker 00:
So had they wanted a hearing, National could have requested a hearing, but they didn't request a hearing.

[00:26:36] Speaker 05:
But why would they want a hearing in order to anticipate an error that hadn't yet occurred?

[00:26:42] Speaker 00:
So National was aware that the issue of whether or not they had had proper inspections was

[00:26:51] Speaker 00:
was part of the basis for the imminent hazard order.

[00:26:55] Speaker 00:
And even with that full knowledge, they failed to produce any evidence that they had actually been having their cargo tanks properly inspected.

[00:27:02] Speaker 00:
All they said is, whoops, we didn't know that Mr. Medina had a lapse license.

[00:27:08] Speaker 00:
They didn't say in any way other people were performing those repairs.

[00:27:15] Speaker 05:
Put that on hold for just a second.

[00:27:17] Speaker 05:
The reconsideration petition was denied in a single sentence, I think it was.

[00:27:26] Speaker 05:
And I don't understand the import of the sentence, here it is.

[00:27:30] Speaker 05:
The motion is not properly before me because the decision on petition for review of emergency order issued on October 3rd, 2014 was a final agency decision.

[00:27:41] Speaker 05:
Why is that?

[00:27:42] Speaker 05:
I don't understand that.

[00:27:43] Speaker 05:
Reconsideration is ordinarily to reconsider what would otherwise be a final agency decision.

[00:27:51] Speaker 00:
In either case, it would not have been proper to reconsider

[00:28:02] Speaker 00:
here under the normal rules would apply to motions for reconsideration because National had already had ample time to reduce this evidence and didn't do so.

[00:28:13] Speaker 05:
That's not in the reconsideration order.

[00:28:15] Speaker 05:
That's not the reason given for denying reconsideration.

[00:28:19] Speaker 05:
It says because this was a final agency decision.

[00:28:23] Speaker 05:
Does that mean that the time for seeking reconsideration had passed?

[00:28:28] Speaker 05:
Which would make sense of this.

[00:28:34] Speaker 00:
The issue of the validity of the denial of the motion to reconsider hasn't been put at issue in this appeal, so it's not... Is there a reason to set a petition for a review of the denial of reconsideration?

[00:28:48] Speaker 00:
There is not.

[00:28:49] Speaker 00:
And I do just want to briefly address

[00:28:53] Speaker 00:
to say, first, we don't believe that their belated evidence is properly before this court, but also to just address what that belated evidence doesn't do.

[00:29:03] Speaker 00:
And what that belated evidence doesn't do is demonstrate that there are any motor carrier tanks currently

[00:29:12] Speaker 00:
that there are any cargo tanks currently under the order that the agency can possibly know.

[00:29:16] Speaker 04:
But just to back up one thing on this question of whether they knew what the problem was, the Out of Service Order itself alerted them that they didn't have any records of authorized inspections, correct?

[00:29:27] Speaker 04:
That's correct.

[00:29:28] Speaker 04:
So they knew before the decision issued

[00:29:30] Speaker 04:
Yes.

[00:29:31] Speaker 04:
From the chief safety officer that they had to come forward with evidence of inspections if that basis for the out of service order was wrong, correct?

[00:29:40] Speaker 00:
That's correct.

[00:29:41] Speaker 04:
They didn't need to wait until reconsideration.

[00:29:43] Speaker 00:
No.

[00:29:43] Speaker 00:
So the imminent hazard order both makes clear that part of the reason that the imminent hazard order is being issued is because they don't have records of proper inspections and also makes clear that

[00:29:54] Speaker 00:
what they have to do to get these rescissions is to come forward with evidence both that the cargo tanks have been had these proper periodic inspections and also that there have been no unauthorized welds, which if there have been unauthorized welds, it's not just enough to say, Oh, at some point we had a periodic inspection.

[00:30:13] Speaker 00:
One has to also show

[00:30:14] Speaker 00:
that there's been subsequent testing of that well done by a registered inspector and that's all they had to do here and they've never done it and just in terms of the additional evidence that they tried to submit we discussed that evidence at pages 30 through 31 of our brief and though the records they submitted first of all the records one of them was for the cargo tank that actually exploded

[00:30:38] Speaker 00:
Another was for a cargo tank that our inspector found had an unauthorized weld and some of the other Inspection records were themselves incomplete and that just really underscores the problem here at this point given that even when

[00:30:57] Speaker 00:
National has self-certified that a cargo tank is good to go and said, here are our periodic inspection records.

[00:31:03] Speaker 00:
You should trust us that there are no unauthorized welds.

[00:31:07] Speaker 00:
Because we say so, the agency has subsequently determined, and this is at a comparison of JA86 and JA101, has discovered that there were, in fact, unauthorized welds and is therefore justified by saying, if you

[00:31:24] Speaker 00:
want us to release a particular cargo tank, just bring us the records and let either our inspector inspect the cargo tank to make sure that there is no unauthorized weld, or have a registered inspector at a registered facility say, there may be a weld on this tank, but I performed the proper test and it's safe to go out on this nation's highways again.

[00:31:46] Speaker 00:
The fact that National has never done so is quite telling.

[00:31:51] Speaker 04:
And if they did come forward and their evidence was rejected, they could seek review of that determination.

[00:31:57] Speaker 00:
That's correct.

[00:31:58] Speaker 00:
If there were a final order and they'd exhausted any administrative record, they would be able to challenge denial of a request for rescission.

[00:32:06] Speaker 04:
Thank you very much.

[00:32:07] Speaker 04:
Thank you.

[00:32:10] Speaker 04:
Does Mr. Wiseman have any time left?

[00:32:12] Speaker 04:
OK, we'll give you two minutes, Mr. Wiseman.

[00:32:21] Speaker 04:
Did you appeal the denial of reconsideration?

[00:32:25] Speaker 01:
We did not.

[00:32:29] Speaker 01:
And one thing on the administrative process I just wanted to point out is when we filed our appeal of that to the chief safety officer, all we had was the five page out of service order.

[00:32:44] Speaker 01:
Once we filed our appeal,

[00:32:46] Speaker 01:
the agency responded by filing several hundred documents that we had never seen before.

[00:32:52] Speaker 01:
And we had to request leave to respond to that.

[00:32:54] Speaker 01:
And I believe you were given 10 pages to respond to so much evidence.

[00:33:00] Speaker 01:
So there was only so much records we didn't.

[00:33:02] Speaker 04:
You haven't appealed that either, right?

[00:33:03] Speaker 01:
We did not, no.

[00:33:04] Speaker 01:
Well, appealed it to this court.

[00:33:06] Speaker 04:
No, you haven't appealed that so-called procedural impediment.

[00:33:09] Speaker 01:
Correct.

[00:33:10] Speaker 01:
The point I wanted to just highlight again is

[00:33:15] Speaker 01:
You know, six months before this unfortunate accident happened, the company had gone through the full compliance review by the agency and received the highest safety rating.

[00:33:23] Speaker 01:
We're talking about the same tanks, the same drivers, the same management.

[00:33:27] Speaker 01:
So what changed between six months ago and then the time of this accident?

[00:33:31] Speaker 01:
It was the accident itself.

[00:33:32] Speaker 01:
And to your point, Judge,

[00:33:34] Speaker 01:
The cause of that accident was not the integrity or any violations with respect to the cargo tank.

[00:33:40] Speaker 01:
It was the unauthorized repair work that was being done before that tank had been cleaned and purged of flammable vapor.

[00:33:48] Speaker 01:
And I would submit that it properly crafted out of service order, which we would not object to, would be to prohibit any further violation of that particular safety system.

[00:34:05] Speaker 06:
But that has nothing to do with whether the tanks are out of compliance and are creating a risk of some other sort.

[00:34:14] Speaker 06:
The government's using the irrelevant fact, but so are you.

[00:34:17] Speaker 06:
Put that fatality aside, we'd have the same case we have now.

[00:34:22] Speaker 01:
So to that point, I think the big issue is,

[00:34:25] Speaker 01:
is any violation of the hazardous material regulation allow them to presume an imminent hazard?

[00:34:31] Speaker 06:
Yeah, that's the issue here.

[00:34:33] Speaker 06:
It's whether relying on the presumption, or any of you at least, it's whether relying on the presumption is an adequate explanation for determining that there's an imminent hazard and therefore taking them out of service without your... Right.

[00:34:46] Speaker 04:
Do they have to look at them one at a time, or can they look at the entire collectivity?

[00:34:50] Speaker 04:
Imagine not your company, but they went into some other company after an explosion, and they found out every single regulation was being violated by that company 80% of the time.

[00:35:05] Speaker 04:
Every safety regulation is being violated 80% of the time.

[00:35:09] Speaker 04:
Can they just go, this is an imminent hazard because of this rampant noncompliance?

[00:35:13] Speaker 04:
These folks have gone rogue.

[00:35:15] Speaker 01:
I would again, if every safety violation was found to be 80% non-compliance, then I think even under their safety rating methodology, that would allow them to shut that company down.

[00:35:25] Speaker 04:
and then does it doesn't have to be all of them.

[00:35:27] Speaker 04:
Could they find that some of them most important ones are being violated in a widespread manner by some company 80% of the time and decide that that collection of violations is an imminent hazard?

[00:35:41] Speaker 01:
I would agree completely with that.

[00:35:43] Speaker 01:
My issue is that the violations that they cited for are not

[00:35:49] Speaker 01:
the type that would create a likely likelihood of death injury.

[00:35:54] Speaker 06:
I think that I correctly read your issue or maybe I'm rephrasing it to myself, but it is not that there isn't evidence from which they could have known this, but that they haven't adequately explained how they do it.

[00:36:10] Speaker 01:
I don't believe that they can explain how these particular violations created.

[00:36:19] Speaker 06:
That doesn't mean I'm withdrawing the fall.

[00:36:22] Speaker 04:
Right.

[00:36:22] Speaker 04:
Thank you.

[00:36:23] Speaker 04:
Thank you.

[00:36:23] Speaker 04:
This is submitted.