SECRETARY OF LABOR,

Complainant,

v.

LOWE CONSTRUCTION COMPANY,

Respondent.

OSHRC Docket No. 85-1388

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

Employees of Lowe Construction Company regularly used a ladder while exiting from a trench in which they were working. The ladder, however, only covered the distance between the bottom of the trench and an area 6 to 8 feet below the top of the trench wall. The Secretary of Labor alleges that Lowe violated the OSHA standard requiring that a ladder extend at least three feet above "the landing." Lowe contends in response that the cited standard, which on its face applies to all ladders used in any type of construction activity, does not apply here because a different standard governs the safety of employees exiting trenches. Lowe asserts it was in compliance with this trenching standard. We agree with Lowe's argument that the standard cited by the Secretary is preempted by the more specifically applicable trenching standard, and we therefore vacate citation item 1, which alleged a violation of the ladder standard.

At the time of the alleged violation, Lowe was a subcontractor on a water main project in Toledo, Ohio. Two of its employees were working in a trench, boring and installing casing in preparation for placement of an underground pipe, when an OSHA compliance officer inspected the worksite. The trench was 35 to 40 feet long, 7 to 8 feet wide at the bottom, 18 to 30 feet wide at the top, and at least 14 to 18 feet deep. The north wall of the trench was vertical for the first five feet from the bottom and then sloped. A ladder described as 10 or 12 feet long extended from the bottom of the trench to a point 6 to 8 feet below the top of the north wall. The employees working in the trench used the ladder to ascend the vertical lower portion of the wall. Then, at about the five-foot level, the employees got off of the ladder and went up the sloped portion of the wall on foot.

Because the ladder did not extend above the top of the trench's north wall, but rather ended considerably below it, and because no grab rails were provided, the Secretary alleged in citation item 1 that Lowe had committed a serious violation of 29 C.F.R. 1926.450(a)(9), which provides:

PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

Subpart L--Ladders and Scaffolding
1926.450 Ladders.
(a) General requirements.

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

A penalty of $490 was proposed.

Lowe argued before the administrative law judge that the citation item should be vacated because the cited standard, which applies to construction work in general, is preempted by the specific trenching standard at 29 C.F.R. 1926.652(h), which reads:

Subpart P--Excavations, Trenching, and Shoring

1926.652 Specific trenching requirements.

(h) When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

The judge rejected Lowe's preemption argument, noting that the trenching standards do not contain any specific requirements for safe use of ladders. He affirmed citation item 1 and assessed a penalty of $300.

We reach a different conclusion. The general rule is that employers "shall comply with occupational safety and health standards promulgated under this Act." 29 U.S.C. 654(a)(2). However, 29 C.F.R. 1910.5(c) creates an exception to this rule. This section provides:

(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .

(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies. . . .

Section 1910.5(c) therefore implements the well-established principle of statutory construction that the specific takes precedence over the general, see Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 894 (1944), by modifying the employer's unqualified statutory duty to comply with all OSHA standards.

In determining whether a specific standard preempts a general one, we are guided by the principle that the standards should be applied so as to effectuate the Secretary's rulemaking intent. See Phelps Dodge Corp., 83 OSAHRC 29/A2, 11 BNA OSHC 1441, 1444, 1983 CCH OSHD 26,552, p. 33,920-21 (No. 80-3203, 1983), aff'd, 725 F.2d 1237 (9th Cir. 1984). Therefore, when application of the general standard would defeat a rulemaking decision made by the Secretary in promulgating the specific standard, we will hold that the general standard is preempted under the terms of section 1910.5(c)(1).[[1/]]

Previous decisions illustrate this principle. In Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1901, 1975-76 CCH OSHD 20,333 at p. 24,251 (No. 6767, 1976), rev'd on other grounds, 585 F.2d 1327 (6th Cir. 1978), the Commission concluded that the general machine guarding standard was preempted by the more specifically applicable mechanical power press standard, which permitted a 3-year grace period within which to meet the point of operation guarding requirements on punch presses that had been installed prior to August 31, 1971. The Commission reasoned that the mechanical power press standard embodied a specific decision that older punch presses did not require immediate guarding, and concluded that it would be improper to override that decision by requiring that the machines be guarded under a general standard.[[2/]] See also Builders Steel Co. v. Marshall, 622 F.2d 367, 369 (8th Cir. 1980) (language in revised standard and other factors showed Secretary did not intend steel erection interior fall protection standard to apply only to multi-tiered buildings; standard accordingly applied to single-story structure at issue and preempted general construction fall protection standard); Langer Roofing & Sheet Metal, Inc. v. Secretary, 524 F.2d 1337, 1339 (7th Cir. 1975)(because Secretary in roof perimeter guarding standard specifically exempted roofs with slopes less than 4 inches in 12, general floor guarding standard could not be applied to require perimeter guarding of flat roofs); General Supply Co., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 2040-41, 1976-77 CCH OSHD 21,503 at pp. 25,806-07 (No. 11752, 1977) (specific standard for manually propelled mobile scaffolds requiring guarding only when at least 10 feet above the floor preempts general scaffolding standard requiring guardrails on some scaffolds that are 4 to 10 feet above the floor).

We must therefore determine whether application of the general construction industry standard for ladders at section 1926.450(a)(9) would defeat a rulemaking decision made by the Secretary in promulgating the present version of the specific trench exit standard at section 1926.652(h). The legislative history of the latter standard illuminates the Secretary's rulemaking intent. In Title 29 C.F.R., revised as of January 1, 1972, section 1926.652(h) provided:

1926.652 General trenching requirements.

(h) Where employees are required to be in trenches 3 feet deep or more, ladders, extending from the floor of the trench excavation to at least 3 feet above the top of the excavation, shall be provided and so located as to provide means of exit without more than 25 feet of lateral travel.

Thus, this version of section 1926.652(h) required that a ladder be provided in any trench 3 feet or more deep, and that the ladder extend at least 3 feet above the top of the trench. The ladder specification requirement was, of course, essentially the same as the requirement of the standard cited in this case since "3 feet above the top of the excavation" can be equated with "36 inches above the landing."

On July 29, 1972, notice was published in the Federal Register of a proposed amendment to section 1926.652(h), based on the recommendation of the Advisory Committee on Construction Safety and Health. 37 Fed. Reg. 15317. The notice proposed that the standard be amended to read as it does today, and the reason given for the change was "to provide more flexibility in methods of egress from the trenches described" in the standard. 37 Fed. Reg. 15317-18. On November 16, 1972, the proposed amended standard was adopted; it became effective 30 days later. 37 Fed. Reg. 24345-46.

As shown above, section 1926.652(h) was originally a specification standard--ladders must be used and must extend "at least 3 feet above the top of the excavation." It was amended in late 1972 to become a performance standard--means of egress from a trench must be "adequate." The entire purpose of a performance standard is to allow flexibility not available in specification standards, and it was just such flexibility that the Secretary sought to afford by amending the standard.

Section 1926.450 contains a number of detailed specifications that ladders used in construction work must meet. If section 1926.450(a)(9) is deemed applicable to ladders in trenches, it follows that the other standards in section 1926.450 would also apply. Application of a number of detailed specification standards to ladders in trenches would eliminate the very flexibility that the Secretary sought to afford by amending section 1926.652(h). Moreover, some of the ladder standards would be anomalous when applied to ladders in trenches. For example, section 1926.450(a)(7) provides that "[p]ortable ladders shall be used at such a pitch that the horizontal distance from the top support to the foot of the ladder is about one-quarter of the working length of the ladder (the length along the ladder between the foot and the top support) . . . . " The narrow width of trenches,[[3/]] coupled with the presence of pipe that is often laid in trenches, would often make it impossible to meet this requirement.[[4/]]

It is also significant that the Secretary included a provision in the standards for excavations making the section 1926.450 standards specifically applicable to ladders used in excavations,[[5/]] but did not include such a provision in the trenching standards. The excavation and trenching standards are located in the same subpart and address similar hazards. The original versions of the trench and excavation standards were drafted and promulgated at the same time. The Secretary clearly intended to distinguish between ladders used in excavations and those used in trenches. As noted above, the trench standard for ladders required that ladders extend at least three feet above the top of the trench, while ladders used in excavations had to comply not only with this requirement but also with all of the other requirements of section 1926.450. Moreover, when the Secretary amended section 1926.652(h), she did not exhibit an intention to make the ladder specification standards applicable to trenches. To the contrary, she removed the one ladder specification contained in section 1926.652(h)--the three foot requirement--in the interest of affording employers flexibility. We conclude that the history and purpose of section 1926.652(h) demonstrate that the Secretary intended that the section 1926.450 ladder specification standards would not apply to ladders used in trenches.

This does not mean that employer may use in trenches ladders that are clearly unsafe. Whatever means of egress is provided must meet the test of adequacy established by section 1926.652(h). Our conclusion means only that the adequacy of the means of egress is not to be measured by the specification standards in section 1926.450. Instead, it will be measured by whether the facts show that the means of egress provided is reasonably safe, given the particular circumstances existing at the site of the trench. In this case, Lowe has consistently argued that the means of egress that its employees used met that test. The record supports this argument. According to the testimony of the compliance officer and one of Lowe's employees whom he observed exiting the trench. Lowe's employees used the ladder to ascend the vertical first five feet of the trench; then they stepped off of the ladder and went up the slope of the north wall on foot. The compliance officer acknowledged that the ascent up the slope was not a "hand and knees" operation, but rather was accomplished "relatively easily." While the means of access was not ideal, due to the possibility of earth movement while employees were exiting the trench, it apparently was as safe as any other option that was available to the employer. It was therefore "adequate."

Based on our conclusion that section 1926.652(h) preempts the cited standard in this case, we vacate citation item 1 alleging a serious violation of section 1926.450(a)(9). In all other respects, the judge's decision is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: April 20, 1989


SECRETARY OF LABOR,

Complainant,

v.

LOWE CONSTRUCTION COMPANY,

Respondent.

OSHRC Docket No. 85-1388

APPEARANCES:

Gail Hurd, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Carl V. Bruggeman, Esquire, Shumaker, Loop and Kendrick,
1000 Jackson, Toledo, Ohio, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) to contest a citation and proposed penalty issued by the Secretary of Labor (Secretary) pursuant to section 9(a) of the Act.

The record discloses that Willie Wiggins, compliance officer, conducted an inspection of a work site where respondent, a subcontractor, was in charge of underground boring at Talmadge Road in Toledo, Ohio.

In the course of its operation, respondent is alleged to have violated the specific trenching standard at 29 C.F.R. 1926.652(b) which requires that:

Sides of trenches in unstable or soft material, 5 feet or more in depth shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

Mr. Wiggins testified that two employees of Lowe were welding pipe shields at the base of the trench which was not shored or braced. The trench was dug in soil consisting of frost, sand, and some heavy "clay-type material." It was "a very loose, unstable type of material." He stated that he observed some soil fall from the walls back into the trench (Ex. C-1; Tr. 16-17).

Mr. Wiggins also asserted that he did not enter the trench to measure it because of the unsafe conditions. Mr. Larry Wagner, the general contractor, indicated to him that the trench was approximately 18 feet wide at the top, 18 to 24 feet deep and 35 to 40 feet long (Tr. 19, 20, 41). Wiggins estimated the slope of the trench to be about 63 or to 1 rather than a 45 slope of 1 to 1 which he believed was required. He further noted that a large backhoe was operated within 3 to 4 feet from the edge of the trench (Ex. C-2; Tr. 25).

Mr. Paul Wagner of Waynesfield Construction Company, the general contractor, testified that his company performed the excavating work at the trench site. Although he was not at the site during the inspection, he was present until the excavation work was completed and the boring machine was placed in the trench. Mr. Wagner, with 25 years' experience in engineering and excavation, stated the entire depth of the trench was dug in soil that was mostly clay material, compact, and stable (Tr. 102-103, 109-110).

Mr. Joe Kenton, a foreman who performed welding in the trench, estimated it was 7 to 8 feet wide at the bottom, 25 to 30 feet wide at the top and 14 to 15 feet deep (Tr. 131, 133, 134). He stated the trench was dug in soil with about 1 feet of sand near the top, but otherwise the soil was composed of hard clay (Tr. 149, 150).

To establish noncompliance with this section, the Secretary must show that (1) the trench is at least five feet deep, (2) a significant portion of the trench wall is composed of soft or unstable soil, and (3) the trench is neither shored nor sloped appropriately from the bottom of the trench. See National Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1091, 1981 CCH OSHD 25,743, p. 32,132 (No. 76-4507, 1981); Joseph J. StoIar Construction Co., 81 OSAHRC 66/C6, 9 BNA OSHC 2020, 2023, 1981 CCH OSHD 25,488, p. 31,782 (No. 78-2528, 1981), aff'd, 681 F.2d 801. (2d Cir. 1981).

To meet the required burden of proof, the Secretary need not establish a fact with absolute certainty. Instead, he must prove the existence of a fact by a preponderance of the evidence . . . in other words, the evidence must establish the existence of the fact the Secretary seeks to prove is more likely than not." Anaconda Aluminum Co., 81 OSAHRC 27A/A2, __ BNA OSHC __, 1981 CCH OSHD 25,299, p. 31,338 (No. 13102, 1981). This standard is met when the record considered as a whole contains preponderating evidence in support of his allegations.

Ultimate Distribution Systems, Inc., 82 OSAHRC 22/B12, 10 BNA OSHC 1568, 1982 CCH OSHD 25,011, p. 32,653 (No. 79-1269, 1982).

It is concluded from the evidence in this case that the Secretary has failed to establish the violation by a preponderance of the evidence.   The inspecting officer made no test of the soil and apparently made a determination of the soil's composition based on his observation from the top of the trench. On cross-examination, he agreed no frost was present but believed the bottom five to eight feet of the trench were dug in clay and the soil above the clay appeared to be a black and yellow sandy type" (Tr. 66-68).

Both respondent's foremen and the excavating contractor maintained the soil was hard and compact which adequately rebuts the compliance officer's testimony. It is also reasonable to conclude that any material that fell back into the trench, which was not specifically identified, was caused by the employees climbing out of the trench, or was dredged by the boring machine (Tr. 19, 137). The evidence also does not show that the soil's stability was affected by any wetness (Tr. 88).

Respondent further contends that the sides of the trench were vertical from the base up to five feet before they were sloped (Tr. 13, 23, 78-79). Thus, it is argued that the requirements of section 1926.652(c) [[*/]] were adequately met in this case for the protection of employees working in the trench.

Respondent is also alleged to have violated the standard at 29 C.F.R. 1926.450(a)(9), which pertains to ladders, and states:

The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grab for an employee moving to or from the point of access, shall be installed.

The alleged violation is described in the citation as follows:

Located at the north wall of the excavation, adjacent to the boring equipment, a ladder provided to and from the excavation did not extend above the access point but terminated below the edge of the wall.

Mr. Wiggins testified that the ladder in question did not extend to the top of the trench and thus it was necessary for the employees to scale the sides of the trench to get to and from the ladder. He stated that no guardrails were present and there was a hazard of the employees falling on the piping and machinery in the trench (Ex. C-2, C-4; Tr. 32-35).

Mr. Kenton, the foreman, agreed that using the ladder, then walking up or scaling the wall of the trench was the only means of exiting the trench but the side had been cut back in the area of the ladder so the employees could walk out (Tr. 135, 151). It is indicated, however, that any cutting back of the trench was for the purpose of sloping the sides of the entire trench (Tr. 140).

The Commission has held that in order to establish a violation, as in this case, it is necessary for the Secretary to show by a preponderance of the evidence that (1 ) the cited standard applies; (2) there was a failure to comply with the standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1982 CCH OSHD 26,251 (No. 78-6247, 1982); Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD 21,679 (No. 76-181, 1977).

Respondent argues that the cited standard does not apply in this instance in light of the specific trench requirement at section 1926.652(h). Thus, it is contended the specific requirement which refers to an "adequate means of exit, such as a ladder or steps" has application rather than the "general requirements" of "ladders" as cited. In addition, respondent notes that the specific excavation requirements include the provision that a ladder must meet the requirements of subpart L [1926.450(a)(9)], which is not part of the trenching requirements.

In support of its argument, respondent cites the case of Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940, 944 (9th Cir. 1979), where the court held that specific regulations for trenches are to be applied to trenches and that it was error to apply excavation standards to trenches. The court applied the well-established maxim of expressio unius exclusio alterius (mention of one thing is the exclusion of the other). Also, it is pointed out that the law is well settled that specific requirements prevail over general requirements in the same enacted provisions. See MacEvoy Co. v. United States, 322 U.S. 102 (1944), at page 107, as follows:

However inclusive may be the general language of a statute, it "will not be held to apply to a matter specifically dealt with in another part of the same enactment . . . . Specific terms prevail over the general in the same or another statute which otherwise might be controlling." Ginsberg & Sons v. Popkin, 285 U.S. 204, 208.

While the foregoing reasoning appears sound, it is without merit based on the facts of this case.

There are no specific requirements governing safe use of ladders in the trenching standards. The focus of the specific requirement at 29 C.F.R. 1926.652(h) is to provide "an adequate means of exit" from a trench. This standard, prior to its amendment, read in pertinent part as follows [36 Fed. Reg. 25232 (1971)]:

Where employees are required to be in trenches 3 feet deep or more, ladders, extending from the floor of the trench excavation to at least 3 feet above the top of the excavation . . . .

From the foregoing, there is no reason to believe that the safe use of ladders should require other than their extension three feet above the top of a trench as cited. An employer choosing to use a ladder while performing work in a trench cannot escape his responsibility under the Act, which would include compliance with any general standards setting forth requirements for safe use of ladders.

The undisputed facts also show that there was a failure to comply with the standard as the ladder did not extend above the top of the trench and grab rails were not present. The evidence, including photographs as exhibits, reflects that employees were exposed to fall hazards, both before and after use of the ladder in this case.

The violation is deemed serious in accordance with section 17(k) of the Act because a fall into the trench could result in death or serious physical harm due to the presence of piping and machinery.

A determination of an appropriate penalty must now be made. The Commission, in all contested cases, has the authority to assess civil penalties for violations of the Act. Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The determination of what constitutes an appropriate penalty is within the discretion of the Review Commission. Long Manufacturing Co. v. OSHRC, 554 F.2d 902 (8th Cir. 1977); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978). The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972). The Commission stated in Secretary v. National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD 15,188 (No. 85, 1971), that the elements to be considered in determining the gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of injury.

Considering all the foregoing factors, a penalty in the amount of $300.00 is deemed appropriate.

FINDINGS OF FACT

1. Lowe Construction Company, at all times hereinafter mentioned, maintained a workplace at 4800 Talmadge Road, Toledo, Ohio.

2. Commencing October 23, 1985, authorized representatives of the Secretary conducted an inspection of the aforementioned work site. As a result of the inspection, respondent was issued a citation with notice of proposed penalty.

3. At the time of the inspection, respondent's employees were engaged in welding pipe shields at the base of a trench.

4. The trench, exceeding five feet in depth, was dug in predominately hard, stable soil.

5. A ladder used by employees working in the trench did not extend three feet above the top of the trench and no grab rails were provided.

CONCLUSIONS OF LAW

1. Lowe Construction Company, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. On October 23, 1985, respondent was not in violation or the standard at 29 C.F.R. 1926.652(b) as alleged.

4. On October 23, 1985, respondent violated 29 C.F.R. 1926.450(a)(9) as alleged.


ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. The citation alleging violation of 29 C.F.R. 1926.652(b) is hereby vacated.

2. That part of Citation No. 1 alleging serious violation of 29 C.F.R. 1926.450(a)(9) is affirmed and a penalty in the amount of $300.00 is hereby assessed.

Dated this 20th day of November, 1986.

PAUL L. BRADY
Judge


LOWE CONSTRUCTION COMPANY,

Applicant,

v.

SECRETARY OF LABOR,

Respondent.

OSHRC Docket No. 85-1388

APPEARANCES:

Christopher J. Carney, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of respondent.

Carl V. Bruggeman, Esquire, Shumaker, Loot and Kendrick, Toledo, Ohio, on behalf of applicant.

ORDER

BRADY, Judge: Lowe Construction Company (Lowe) has filed applications for attorney's fees and expenses pursuant to the Equal Access to Justice Act, title II, of Pub. L. No. 96-481, 94 Stat. 2325 (5 U.S.C.A. 504) (hereinafter referred to as "EAJA").

By enacting the EAJA, Congress sought to rectify situations in which individuals, associations and small businesses were deterred by large expenses from defending against unreasonable governmental action. In Federal Clearing Die Casting Co., 83 OSAHRC 7/D2, 11 BNA OSHC 1157, 1983 CCH OSHD 26,423 (No. 80-2903, 1983), the Review Commission stated the application of the EAJA to Commission proceedings, as follows:

. . . . EAJA requires an agency that conducts adversary adjudications, such as the Commission, to award to a prevailing party, other than the United states, fees and other expenses incurred by the party in connection with the proceeding, unless the position of the government as a party was substantially justified or special circumstances make an award unjust. 5 U.S.C. 504(a)(1). EAJA applies to any adversary adjudication pending on, or commenced after, October 1, 1981. Pub. L. No. 96-481, 208, 94 Stat. 2325, 2330. To be eligible for an award of fees and expenses under EAJA, a party that is a business, an association, or a private or public organization must employ no more than 500 employees and, except for certain tax exempt organizations and agricultural cooperatives, must have a net worth of no more than $5 million at the time the adversary adjudication was initiated. 5 U.S.C. 504(b)(1)(B).

Lowe seeks fees and expenses for time spent and costs incurred in connection with a citation issued by the Secretary of Labor (Secretary). The applications are based upon the assertion that the action of the Secretary in issuing the citation was not substantially justified, and that the company prevailed in proceedings before the Commission.

This matter arose after an inspection of Lowe's work site and the Secretary concluded that there were two violations of the Occupational Safety and Health Act of 1970. A citation was then issued. After a notice of contest, complaint and answer were filed, a hearing was held. Subsequently, in a decision by this Administrative Law Judge, Lowe was held in violation of 29 C.F.R. 1926.450(a)(9), item one of the citation. On review, this violation was set aside by the Commission and item one was, therefore, vacated. Item two of the citation, an alleged violation of 29 C.F.R. 1926.652(b), was vacated.

There is no question that Lowe meets the eligibility requirements for an award and the Secretary agrees the company was the prevailing party in the underlying proceeding. Thus, the issue is whether the Secretary's position was substantially justified.

The criteria for making an award is set forth at 29 C.F.R. 2204.106(a) as follows:

(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the position of the Secretary was substantially justified. The burden of proof that an award should not be made to an eligible prevailing applicant is on the Secretary, who may avoid an award by showing that its position was reasonable in law and fact.

In vacating item one of the citation, the Commission ruled in favor of Lowe that the cited standard at 1926.450(a)(9) was pre-empted by 1926.652(h). Lowe was alleged to have violated 1926.450(a)(9) while using a ladder during a trench operation. The standard which pertains to ladders requires as follows:

The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

Lowe contended, however, that use of the ladder in question was governed by the specific trenching requirement at 1926.652(h) which states:

When employees are required to be in trenches 4 feet deep or more, an adequate means of exit, such as a ladder or steps, shall be provided and located so as to require no more than 25 feet of lateral travel.

The Commission held that, by the Secretary's amendment to 1926.652(h) in 1972, it was intended that the section 1926.450 ladder specifications would not apply to ladders used in trenches as in this case. In light of the decision which holds that the Secretary's own rulemaking decision was not effectuated in carrying out the stated purpose of the amendment, this Judge cannot see her present position was substantially justified. Since there are no special circumstances that would render an award unjust, the applicant is entitled to recover reasonable fees and expenses.

The Secretary's decision to litigate item two of the citation, an alleged violation of 29 C.F.R. 1926.652(b) was, however, substantially justified. To show the Secretary's position in a case was substantially justified, the applicable principle is whether it had a reasonable basis--both in law and fact. In S & H Riggers L Erectors, Inc., v. OSHRC, 672 F.2d 426, 430 (5th Cir. 1982), the court quoted from the legislative history as follows (H.R. Report No. 1418):

The burden of showing substantial justification for a case that [the Secretary] lost is not insurmountable:

The standard . . . should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing.

Section 1926.652(b) requires an employer to slope trenches, five feet or more in depth, dug in unstable soft material, in accordance with tables P-1 and P-2. "Unstable soil" is defined in 29 C.F.R. 1926.653(g) as "earth material, other than running, that because of its nature or the influence of related conditions, cannot be depended upon to remain in place without extra support, such as would be furnished by a system of shoring." Although witnesses for both sides indicated the soil in question was a mixture of clay, sand and other materials, the Secretary failed to establish a violation by a preponderance of evidence.

On the basis of the foregoing, it is determined that the Secretary was substantially justified in issuing the citation and filing the complaint. Only after weighing all the facts adduced at the hearing was the citation vacated.

Applicant requests an award of fees and expenses for item one in the amount of $13,803.80. The sum represents one-half of the expenses and fees for the number of hours worked from entry into the case until receipt and study of the initial decision ($5,861.75). In addition, there are fees and expenses for hours worked since that time totaling $7,842.05.

Although applicant seeks much higher hourly compensation, Commission Rule 2204.107 limits compensation for attorney's fees to $75.00 per hour.

It is, therefore, concluded that applicant is entitled to compensation for 104 hours at $75.00 per hour for a total of $7,800.00, plus expenses of $222.80.

Accordingly, it is ORDERED:

That the applicant be compensated by the Secretary in the total amount of $8,022.80.

Dated this 9th day of November, 1989.

PAUL L. BRADY
Judge


FOOTNOTES:

[[1/]] This is consistent with preemption analyses in other contexts, such as in determining whether a state statute is preempted by a federal statute. The United States Supreme Court stated in Silkwood v. Ferr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621 (1984), that where Congress has shown an intent to occupy a given field, any state law in that field is preempted, and where a state regulation has not entirely been displaced by Congress, the state law is preempted to the extent that it conflicts with federal law or presents an obstacle to fulfilling Congressional intent. That test has been applied in several cases involving perceived conflicts between state or local law and the Occupational Safety and Health Act: Manufacturers Association of Tri-County v. Knepper, 801 F.2d 130, 135 (3d Cir. 1986), cert. denied, 108 S.Ct. 60 (1987) (Pennsylvania Right to Know Act); New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 592 (3d Cir. 1985) (New Jersey Right to Know Act); Puffer's Hardware, Inc v. Donovan, 742 F.2d 12, 16 (1st Cir. 1984) (Massachusetts elevator safety statute); New Jersey State Chamber of Commerce v. State of New Jersey, 653 F.Supp. 1453, 1466-67 (D.N.J. 1987)(New Jersey Asbestos Act and regulations). See also Illinois v. Chicago Magnet Wire Corp., 126 I11.2d 356, 534 N.E.2d 962 (1989)(no intent shown by Congress for federal OSHA to preempt enforcement of state criminal laws).

[[2/]] The Sixth Circuit reversed the Commission's ruling with respect to a different allegation involving unguarded press brakes. The alleged punch press violation discussed above was not even before the court on review.

[[3/]] A "trench" is a narrow excavation having a depth greater than the width (at the bottom), and a width not greater than 15 feet. See 29 C.F.R. 1926.653(n). Any wider man-made cavity in the earth is an "excavation." See 29 C.F.R. 1926.653(f).

[[4/]] Similarly in this case, if we were to accept Lowe's unsubstantiated claims about the configuration of the trench, e.g., the angle of sloping above the five-foot level, then we would have to conclude that it would have been senseless to require a ladder extending three feet above ground level. If Lowe's assertions are correct, then the section of the ladder three feet above ground level would have extended into mid-air in such a way that employees could not possibly have climbed on or off the ladder at that point.

[[5/]] Section 1926.651(y), a specific excavation standard, provides that "(a)ll ladders used on excavation operations shall be in accordance with the requirements of Subpart L of this part." Section 1926.450 is located in Subpart L.

[[*/]] This section, in pertinent part, states:

Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1 foot rise to each -foot horizontal . . . .