United States of America

**

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457





____________________________________
SECRETARY OF LABOR,                 :
                                    :
          Complainant,              :
                                    :
          v.                        :          OSHRC Docket No. 93-3177
                                    :
C.J. HUGHES CONSTRUCTION, INC.,     :
                                    :
          Respondent.               :
____________________________________:

*/DECISION/*

*//*

Before: ROGERS, Chairman; EISENBREY, Commissioner.

BY THE COMMISSION:

In this case we review a decision of Chief Administrative Law Judge
Irving Sommer awarding attorneys' fees and expenses to Respondent, C.J.
Hughes Construction, Inc. ("Hughes"), under the Equal Access to Justice
Act ("EAJA"), 5 U.S.C. § 504. EAJA allows an employer that prevails in a
contest of an Occupational Safety and Health Administration ("OSHA")
citation and meets certain eligibility requirements to receive
reimbursement unless the Secretary shows that her position was
"substantially justified" or that other circumstances make an award
unjust. /William B. Hopke Co./, 12 BNA OSHC 2158, 2159, 1986-87 CCH OSHD
¶ 27,729, p. 36,255 (No. 81-206, 1986).

Hughes, an underground utility contractor, had a contract to repair gas
lines for Columbia Gas of Ohio. These proceedings concern a worksite on
Harmon Avenue in Columbus, Ohio, where Hughes had dug a trench to expose
a leaking gas line. Hughes was cited for six violations of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("the
Act"), for allegedly failing to comply with the Secretary's trenching
and excavation standards. The Secretary withdrew one citation item in
her complaint, and the remainder were assigned to Administrative Law
Judge John H. Frye III for disposition. Judge Frye vacated two and
affirmed three of these items. The Commission, acting on Hughes'
petition for review, then directed review of Judge Frye's decision to
affirm the three items. After the Secretary withdrew one of the affirmed
items, the Commission reversed Judge Frye and vacated the remaining two
items. The issue before us is whether Judge Sommer erred in concluding
that the Secretary's position was not substantially justified with
respect to the two items which Judge Frye had affirmed. That portion of
Judge Sommer's decision finding that the Secretary's position was not
substantially justified with respect to the remaining four citation
items is not on review. For the reasons that follow, we affirm Judge
Sommer's decision in part and reverse in part.

The Commission members are divided in their views as to whether the
Secretary established that she was substantially justified as to item 1
of citation no. 1, which alleged that employees did not have a safe
means of egress from the trench, contrary to 29 C.F.R. § 1926.651(c)(2).
Under section 12(f) of the Act, 29 U.S.C. § 661(f), official action can
be taken only with the affirmative vote of at least two members.
Considering the length of time this matter has been pending^(1)
<#N_1_>and in the interest of finality, to resolve their impasse over
this issue, Chairman Rogers and Commissioner Eisenbrey agree to affirm
the judge's holding awarding fees and expenses with respect to item 1 of
citation no. 1, but to accord this portion of the judge's decision the
precedential value of an unreviewed judge's decision. /Westar
Mechanical, Inc./, 19 BNA OSHC 1568, 1584, 2001 CCH OSHD ¶ 32,483, p.
50,290 (No. 97-0226, 2001) (consolidated).

The Commission members do agree, however, that the Secretary was
substantially justified in her position with respect to item 1 of
citation no. 2, in which the Secretary alleged that Hughes had failed to
protect its employees from the hazard of a cave-in under section
1926.651(a)(1), which specifies that "each employee in an excavation
shall be protected from cave-ins by an adequate protective system . . .
." The issue litigated by the parties is whether Hughes came within an
exception which exempts an employer from this requirement if
"excavations are less than 5 feet (1.52 m) in depth and an examination
of the ground by a competent person provides no indication of a
potential cave-in." Section 1926.652(a)(1)(ii). The relevant facts are
as follows.

Hughes had dug a trench to expose a 12-inch gas main where a leak was
suspected. After it was determined that the leak originated in a 1-inch
unused service line which ran perpendicular to the main line, Hughes
exposed the service line, resulting in an L-shaped trench. It is
undisputed that this trench was less than 5 feet deep. Hughes' crew
leader, Thomas Febes, took a soil sample from the spoil pile, which he
examined and found to consist of dirt, sand, and gravel; in feeling or
squeezing the sample he determined that it appeared dry and granular and
"held together" "a little." As he entered the trench, Febes also
performed a soil test known as the "thumb in the bank test" in which he
pressed his thumb into the wall of the trench to detect whether any
moisture was present and to feel whether the soil was firm or solid.
Febes considered the soil, which appeared consistent throughout the
trench, to be "Type C," primarily because Columbia Gas has a policy that
all soils are to be classified as "Type C."^(2) <#N_2_>

The Secretary presented testimony from compliance officer Richard Burns,
who had been trained by the Secretary's representatives to the
committees which had drafted the trenching and excavation standards.
Burns did not perform what he called the "thumb penetration test"
because that test is performed on a "clod" of soil, and he was unable to
"get the soil to go into a clod." He accordingly regarded the soil as
noncohesive. Burns also stated that the thumb test is normally conducted
of soil from the spoil pile and that he had "never seen" a thumb test
conducted at the trench wall.^(3) <#N_3_> He took two samples from the
spoil pile that the OSHA laboratory in Salt Lake City classified as
"Type B" soil and found to be fissured but cohesive "gravelly sandy
clay."^(4) <#N_4_>

Febes did not recall any debris rolling into the excavation and felt no
vibration but said that there were some "pockets" in the trench walls
where some gravel "may" have fallen out of the wall, and some material
came off the spoil pile as it was being formed. Burns observed fissures
where material had fallen out of the wall of the excavation, and soil
was falling in from the wall and from the spoil pile during the
inspection. Burns also noted that Harmon Avenue where the trench was dug
carries heavy truck traffic. Burns also testified that Febes told him
that he had detected vibration from truck traffic but had taken this
vibration into consideration in determining that the trench walls were
nevertheless stable. In addition, Burns believed that the weight of the
spoil pile, which was not set back from the edge of the trench,
contributed to the possibility of a cave-in. In reaching this
conclusion, Burns relied on the fact that the trench was dug in
previously disturbed soil. Hughes' consultant, Richard Hayes, who was
admitted as an expert witness, testified that most of the soil evident
in the spoil pile consisted of sand and small gravel, which in his
opinion was not sufficient to create a serious hazard. He also stated
that this opinion was supported by the results of the soil analyses,
which showed a larger percentage of sand and gravel than of silt and
clay. Similarly, Richard C. Phillips, Febes' supervisor, saw no
potential for any cave-in. He said that the soil was a mix of gravel and
clay that would "hold" unless it got wet.

Burns found Febes to be knowledgeable in soil analysis, use of
protective systems, and the requirements of the standard and to have
authority to take corrective measures and stop work.^(5) <#N_5_> While
Burns concluded that Febes had "examined the ground for indication of
cave-in potential," he felt that Febes had not conducted an adequate
examination of the excavation, as contemplated by the standard. Burns
explained that Febes should have "go[ne] through the whole area to check
for possible signs of cave-in or check for things that could possibly
have an effect on the trench." Furthermore, in Burns' opinion, an
additional soil test should have been conducted when Hughes enlarged the
excavation to expose the service line for the reason that "inspections
need to be done prior to any work," and the additional excavation was a
"change" in the conditions of the trench. He also testified that he did
not consider Febes' visual inspection to be "an adequate examination of
the soil by a competent person" because Febes' "visual test and just
picking up the soil" were not sufficient to determine the soil
stability.^(6) <#N_6_> Therefore, in Burns' view, Febes could not have
made the determination necessary to exempt Hughes from the requirement
for providing protection against a cave-in. Hayes, on the other hand,
gave his opinion that Febes had performed the tests required by the
standard.

The Commission noted that under established Commission precedent, the
burden of proof was on Hughes to establish that a competent person
inspected the trench and found no indication of a potential for cave-in.
/C.J. Hughes Constr. Inc./, 17 BNA OSHC 1753, 1756, 1995-97 CCH OSHD
¶ 31,129, p. 43,476 (No. 93-3177, 1996)(citing /Armstrong Steel
Erectors, Inc./, 17 BNA OSHC 1385, 1389, 1995-97 CCH OSHD ¶ 30,909, p.
43,031 (No. 92-262, 1995)).The Commission found that Febes' opinion as
to the stability of the trench was supported by other witnesses who were
competent persons themselves. The Commission interpreted the standard
not to require that the competent person correctly ascertain the
stability of the trench to a degree of scientific accuracy but only that
the competent person's determination be /reasonable/. In finding Febes
to have acted reasonably in this case, the Commission concluded that
Febes had conducted the type of inspection required under the standard
and that the Secretary had not shown that Febes' determination as to the
safety of the trench was unreasonable. The Commission observed, as did
Judge Frye, that the standard offers no guidance for determining what
constitutes an "indication of potential cave-in" and that compliance
officer Burns conceded that such determinations represent "a judgment
call." /Id./ at 1756-57, 1995-97 CCH OSHD at pp. 43,476-77.

In determining whether the Secretary's position is "substantially
justified" so as to preclude an award to the employer under EAJA, the
Commission applies the following general rule:

The test of whether the Secretary's action is substantially justified is
essentially one of reasonableness in law and fact. /Hocking Valley Steel
Erectors, Inc./, 11 BNA OSHC 1492, 1983-84 CCH OSHD ¶ 26,549 (No.
80-1463, 1983). The Secretary's position must be "'justified in
substance or in the main'--that is, justified to a degree that could
satisfy a reasonable person." /Gatson v. Bowen/, 854 F.2d 379, 380 (10th
Cir. 1988) . . . .

/Consolidated Constr., Inc./, 16 BNA OSHC 1001, 1002, 1991-93 CCH OSHD
¶ 29,992, p. 41,072 (No. 89-2839, 1993). While the Secretary does not
dispute that Febes was a "competent person"under the exception clause in
issue, Hughes was nevertheless obligated to prove not only that its
competent person had conducted a sufficient "examination of the ground"
but also that, based on such examination, /no/ indication of even a
potential for a cave-in was evident. Thus, the Secretary's position is
substantially justified if the Secretary could reasonably have believed
that Hughes had not adequately examined the ground in which the trench
was dug or that any indication of a potential for a cave-in was apparent
from that examination.

As we have discussed, the standard's Appendix A can reasonably be
interpreted to support Burns' opinion that Febes had not performed his
thumb penetration test from the proper location. Similarly, there is no
evidence to show that Febes attempted to "estimate the range of particle
sizes and the relative amounts of particle sizes" or that he conducted a
visual inspection of "the excavation site in general" and "the soil
adjacent to the excavation" as suggested by section (d)(1) of Appendix
A. Accordingly, Burns' opinion that Febes did not conduct a proper
inspection because he failed to inspect the entire area of the trench is
consistent with the language of the Appendix as well. Considering that
Burns was an adequately trained compliance officer clearly competent to
testify as to the meaning and application of the standard, the Secretary
was justified in relying on Burns' opinion that Febes had not performed
sufficient soil testing or conducted a complete "visual analysis" in
conformity with the standard and Appendix A.

Furthermore, the Secretary could reasonably conclude that there were
factors tending to show the potential for a cave-in. Judge Frye, in
affirming this citation item, found a number of such indications in the
record, including material from the spoil pile entering the trench, the
uncertain effect of the added weight placed on the trench walls by the
spoil pile, the fissures in the soil as confirmed by the results of
OSHA's lab tests, the presence of heavy traffic on the nearby street
which could result in vibration, and some evidence of lack of
cohesiveness in the soil. The fact that the Commission, in reversing
Judge Frye and vacating, may have weighed the evidence differently than
Judge Frye and reached a different conclusion as to the persuasiveness
of the testimony regarding these circumstances does not demonstrate that
the Secretary's position was not substantially justified. /See/ /Mautz &
Oren, Inc./, 16 BNA OSHC 1006, 1009, 1991-93 CCH OSHD ¶ 29,986, p.
41,066 (No. 89-1366, 1993)(outcome of the case on the merits is not
dispositive as to whether the government's position was substantially
justified). Considering the acknowledgment in the Commission's decision
that the standard embodies a certain degree of discretionary judgment in
evaluating whether a potential for a cave-in is apparent, we cannot find
that the Secretary's position lacked a reasonable factual and legal
basis. Accordingly, we conclude that she was substantially justified.
/See/ /EEOC v. Clay Printing Co./, 13 F.3d 813, 815 (4th Cir. 1994) (in
resolving the issue of substantial justification, the /rationale/ of the
ultimate decision on the merits must be taken into consideration).^(7)
<#N_7_>

Judge Sommer awarded Hughes a total of $23,331.84 for fees and expenses
incurred in litigating all six citation items. The parties do not
dispute the methodology applied by the judge in determining the fees and
expenses. Since we find the Secretary's position to have been
substantially justified with respect to one citation item, we conclude
that the judge's award should be reduced by one-sixth. /See/ /Central
Brass Mfg. Co./, 14 BNA OSHC 1904, 1907-08, 1987-90 CCH OSHD ¶ 29,144,
p. 38,957 (No. 86-978, 1990) (consolidated) (allocating fees and
expenses according to the proportion of items compensable).

For the reasons set forth, that portion of the judge's decision finding
that the Secretary

was not substantially justified in her position with respect to item 1
of citation no. 2 is reversed. That part of the judge's decision
addressing item 1 of citation no. 1 is affirmed without precedential
value. The justification of the Secretary's position with respect to the
remaining four citation items is not on review. Accordingly, Hughes is
awarded attorneys' fees and expenses in the amount of $19,443.20.

So ORDERED.





/s/

Thomasina V. Rogers

Chairman







/s/

Ross Eisenbrey

Commissioner



Dated: December 20, 2001



------------------------------------------------------------------------

____________________________________
SECRETARY OF LABOR,                 :
                                    :
          Complainant,              :
                                    :
          v.                        :          OSHRC Docket No. 93-3177
                                    :
C.J. HUGHES CONSTRUCTION, INC.,     :
                                    :
          Respondent.               :
____________________________________:

*/DECISION AND ORDER ON REMAND/***



This matter is before the Occupational Safety and Health Review
Commission ("the Commission") pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq/.
("the Act"). In particular, this case is before the undersigned pursuant
to the Commission's October 22, 1999 remand order to determine whether
Respondent should be awarded attorney fees and expenses under the Equal
Access to Justice Act ("EAJA"), 5 U.S.C. § 504.

*/Procedural History/***

This case arose in October of 1993, when the Occupational Safety and
Health Administration ("OSHA") inspected a work site in Columbus, Ohio,
where Respondent, C.J. Hughes Construction, Inc. ("Hughes"), had
excavated gas lines so that Columbia Gas of Ohio ("Columbia Gas") could
repair a gas leak. OSHA inspected the site pursuant to an imminent
danger complaint of employees in a trench, and, as a result of the
inspection, Hughes was issued a four-item serious citation and a
two-item "repeat" citation. The serious citation alleged violations of
29 C.F.R. §§ 1926.651(c)(2), 1926.651(g)(2)(i), 1926.651(j)(2) and
1926.651(k)(2), and the "repeat" citation alleged violations of 29
C.F.R. §§ 1926.652(a)(1) and 1926.651(k)(1). Hughes contested the
citations, and a hearing was held on September 13 and 14, 1994, in
Columbus, Ohio.^(8) <#N_8_> In a decision and order dated March 6, 1995,
the alleged violations of sections 1926.651(c)(2), 1926.651(k)(2) and
1926.652(a)(1) were affirmed and the other alleged violations were
vacated.^(9) <#N_9_>

Hughes petitioned for review of the affirmed items. While this matter
was on review, the Secretary moved to withdraw the alleged section
1926.561(k)(2) violation, and the Commission granted the motion on
October 18, 1995. In a decision dated September 6, 1996, the Commission
vacated the two remaining items, and on December 5, 1996, Hughes filed
its EAJA application. The Secretary filed her answer to the application
on February 6, 1997, and Hughes filed a reply on February 20, 1997. In a
decision and order dated July 9, 1998, I concluded that Hughes had not
showed that it met the financial criterion to qualify for an EAJA award
and therefore denied the application. Hughes petitioned for review of my
decision, and the Commission, in a remand order dated October 22, 1999,
directed that Hughes be given an opportunity to submit additional
information to establish its eligibility for an EAJA award. Pursuant to
the remand, on March 29, 2000, I directed Hughes to submit a detailed
exhibit showing its "net worth information for 1993, or an explanation
that relates the data already provided to the company's net worth in
1993." Hughes complied with my order on April 17, 2000, and, based on
the information submitted, has demonstrated its eligibility for an EAJA
award.^(10) <#N_10_> Accordingly, the issue requiring resolution at this
point in time is whether an EAJA award should be granted under the
circumstances of this case.

*/Whether the Secretary was Substantially Justified/*//

Commission precedent is well settled that a party that has prevailed in
a discrete portion of an adversary adjudication and that is otherwise
eligible for an EAJA award may be reimbursed for its legal fees and
expenses unless the Secretary shows that her position was substantially
justified or that an award would be unjust under the circumstances.
/William B. Hopke Co./, 12 BNA OSHC 2158, 2159 (No. 81-206, 1986). Even
if the Secretary shows her position was initially justified, she may
nevertheless be liable for legal fees incurred after this was no longer
the case. /Consolidated Constr., Inc./, 16 BNA OSHC 1001, 1002 (No.
89-2939, 1993). The test in this regard is essentially one of
reasonableness in law and fact, that is, whether the Secretary's
position was substantially justified to a degree that would satisfy a
reasonable person. /Hocking Valley Steel Erectors, Inc./, 11 BNA OSHC
1492, 1497 (No. 80-1463, 1983). The loss of her case or her withdrawal
of a citation is not necessarily determinative of whether the Secretary
was substantially justified; however, once facts become known during the
litigation that could make her proceeding with the case unreasonable,
the Secretary must act expeditiously to alter her position in view of
such facts. /Id/.

*/Factual Background/***

To accomplish its work, Hughes excavated an "L" shaped trench. The first
excavation, which was about 9 feet long, exposed the main gas line, and
the second excavation, which was between 11 and 12 feet long, exposed
the leaking service line.^(11) <#N_11_> The deepest part of the L-shaped
trench was 4.5 feet, the 9-foot section was benched along its entire
length, and the trench did not exceed 25 feet in lateral distance. When
the OSHA compliance officer ("CO") arrived, Kenneth Cummins, a Columbia
Gas welder, was welding in the trench. The CO held an opening conference
with Thomas Febes, Hughes' foreman, and about midway through the
inspection Hughes' superintendent Richard Phillips arrived at the site.
Two other Hughes employees were also at the site, as was Robert Cook, a
Columbia Gas inspector. (Tr. 11; 32; 86; 94-95; 115-17; 137; 153-57;
166-69; 185; 207; 212-13).

Hughes had designated Febes as its "competent person" at the site. Febes
did not take any measurements of the trench, but he conducted visual and
manual inspections of the soil before any employees entered the
excavation. Specifically, Febes had taken a handful of soil from one of
the two spoil piles to determine how cohesive and pliable it was and how
much moisture it contained, and he had noted that the soil, which
consisted of dirt, sand and gravel, had held together "a little." He had
also done a "thumb test" by sticking his thumb into the trench walls.
Febes testified at the hearing that the soil appeared to be consistent
throughout the excavation and that he had classified it as "Type C"
because it was the procedure of Columbia Gas to classify all soils as
Type C.^(12) <#N_12_> Febes further testified that he had determined
that there was no danger of the trench caving in, based upon his
education, experience and training. (Tr. 97-102; 122-23; 185).

*/Serious Citation 1 - Item 1 - 29 C.F.R. 1926.651(c)(2)/*//

The cited standard requires that a stairway, ladder, ramp or other safe
means of egress be located in trench excavations that are 4 feet or more
in depth so as to require no more than 25 feet of lateral travel for
employees. The basis of this item was a slope, or ramp, at the end of
the longer section of the trench that two workers had used to enter the
trench. The CO determined the slope was not a safe means of egress
because the welder he saw in the trench stepped up on the gas main and
then on the side of the trench to get out; the CO also believed the
slope was too steep to allow an employee to walk out comfortably,
although he had not measured it or used it himself. Judge Frye affirmed
this item, finding the ramp was a "questionable means of egress" that
was "not entirely free of difficulty." The Commission vacated this item,
noting that Judge Frye never found that the ramp did not provide safe
egress. The Commission also noted the testimony of Febes, Hughes'
foreman, that he had entered and left the trench safely by using the
ramp and the testimony of the welder that he had entered the trench
without difficulty by means of the ramp.^(13) <#N_13_> Finally, the
Commission noted that all of the witnesses employed by Hughes or
Columbia Gas who were asked believed the ramp provided safe egress and
that the only testimony to the contrary was that of the CO, who had no
first-hand knowledge of the difficulty of walking up the ramp. In
vacating this item, the Commission stated that the "testimony of the
employees who were actually in the trench establishes that this trench
provided the safe means of egress required by the standard." In light of
the Commission's decision, I conclude that the Secretary was not
substantially justified in issuing this citation item. Accordingly,
Hughes may recover its legal fees and expenses in regard to this item.

*/Serious Citation 1 - Item 2 - 29 C.F.R. 1926.651(g)(2)(i)/***

The cited standard requires emergency rescue equipment to be readily
available where hazardous atmospheric conditions exist during work in an
excavation. As noted above, the Secretary withdrew this citation item in
her complaint, which persuades me she was not substantially justified in
issuing this item. Hughes is entitled to recover any fees and expenses
it incurred in this regard.

*/Serious Citation 1 - Item 3 - 29 C.F.R. 1926.651(j)(2)/*//

The cited standard requires employees to be protected from excavated or
other materials or equipment that could pose a hazard by falling or
rolling into excavations; protection may be provided by keeping such
materials or equipment at least 2 feet from the edge and/or by using
retaining devices to prevent materials or equipment from falling or
rolling into excavations. The CO testified that there were two spoil
piles at the site, one to the left and one to the right of the service
line excavation; the piles were both within 2 feet of the edge and
neither was retained in any way. (Tr. 162; 175). The CO further
testified that he saw a small amount of soil from the piles trickling
slowly into the trench; the employees, on the other hand, testified they
did not observe this occurring. (Tr. 57; 74; 120; 140; 162). The CO's
opinion was that the weight of the piles might have caused a cave-in.
(Tr. 175-77). However, Judge Frye found that the hazard the standard
encompassed was that of materials falling or rolling into excavations
and not that of added weight causing a cave-in. Judge Frye also found
that the small amount of material trickling into the trench did not
"constitute a hazard within the contemplation of the standard" and
therefore vacated this item. Based on the record and the judge's
decision, as well as the fact that the Secretary did not petition for
review of this item, I conclude that there was no substantial
justification for OSHA to issue this citation item. Hughes may thus
recover its legal fees and expenses with respect to this item.

*/Serious Citation 1 - Item 4 - 29 C.F.R. 1926.651(k)(2)/*

*//*

*//*

*/and "Repeat" Citation 2 - Item 1 - 29 C.F.R. 1926.652(a)(1)/*//

These two items involve essentially the same facts, those relating to
Febes' determination that the trench did not represent a cave-in hazard.
The cited standards provide as follows:

1926.651(k)(2) - Where the competent person finds evidence of a
situation that could result in a possible cave-in, ... exposed employees
shall be removed from the hazardous area until the necessary precautions
have been taken to ensure their safety.

1926.652(a)(1) - Each employee in an excavation shall be protected from
cave-ins by an adequate protective system designed in accordance with
paragraph (b) or (c) of this section except when ... (ii) excavations
are less than 5 feet (1.52m) in depth and examination of the ground by a
competent person provides no indication of a potential cave-in.

Judge Frye affirmed both of these items based on his finding that the
record established indications of a possible cave-in at the site. As
noted above, the Secretary withdrew Item 4 of Citation 1 while this
matter was on review, and the Commission's decision vacated Item 1 of
Citation 2. For the reasons set out in the Commission's decision, I
conclude that the Secretary was not substantially justified in issuing
these items. First, the Commission observed that the CO's own notes from
the inspection showed that Febes, Hughes' foreman, was qualified as a
competent person. Second, the Commission noted that Febes' determination
was supported by every witness who testified, except for the CO.^(14)
<#N_14_> In fact, as the Commission pointed out, there were two other
individuals at the site who were also trained as competent persons and
who also concluded that there were no indications of a potential
collapse of the trench.^(15) <#N_15_> Third, the Commission noted the
CO's admission that the determination of a competent person involves
making a "judgment call" and then held that the Secretary had failed to
show that Febes did not perform his job in a competent manner or that
his determination was unreasonable. In view of the Commission's
decision, I find that Hughes is entitled to recover its legal fees and
expenses with respect to both of these citation items.

*/"Repeat" Citation 2 - Item 2 - 29 C.F.R. 1926.651(k)(1)/*//

The cited standard requires the competent person to conduct daily
inspections of excavations, both prior to the start of work and as
needed throughout the shift. The basis of this item was the CO's
conclusion that Febes' examination of the trench fell short of what was
required and that his determination as to the trench's safety was
incorrect. Judge Frye vacated this citation item, and I find that the
Secretary was not substantially justified in issuing this item. First,
as set out /supra/, the CO's own inspection notes established that Febes
was qualified as a competent person. Second, the record demonstrates
that Febes conducted visual and manual inspections of the trench before
employees entered it, and although he characterized the soil as Type C,
due to the policy of Columbia Gas to classify all soils as Type C, he
also determined that the trench did not represent a safety hazard.
Finally, as noted above, the Commission held that the Secretary had not
shown that Febes did not perform his job in a competent manner or that
his determination was unreasonable. Hughes may accordingly recover its
legal fees and costs with respect to this citation item.

*/The Award to which Hughes is Entitled/*//

As noted /supra/, an eligible party prevailing in an adversary
adjudication is entitled to its legal fees and expenses unless the
Secretary shows that her position was substantially justified or that an
award would be unjust under the circumstances. /William B. Hopke Co./,
12 BNA OSHC 2158, 2159 (No. 81-206, 1986). Based on the foregoing, the
Secretary was not substantially justified in issuing the citations in
this matter, and she does not contend that an award would be unjust.
However, the Secretary does dispute the amount claimed in the
application. Specifically, she asserts that the expenses are not
justified and that the number of hours and the hourly rates are excessive.

Hughes' EAJA application contains copies of the itemized statements it
received from its counsel that set out the hours expended and a
description of the legal services rendered in this case.^(16) <#N_16_>
The statements also set out the expenses claimed, which include charges
for copies, faxes, long-distance phone calls and postage; other expenses
include charges for FedEx, Lexis, Westlaw and travel costs. The
Commission has held that "[a]llowing the recovery of the reasonable and
necessary expenses of an attorney in a specific case which are
customarily charged to the client is ... consistent with the EAJA's
statutory objective of encouraging small employers to defend their
rights against unjustified governmental action." /See Ruhlin Co./, 17
BNA OSHC 1068, 1069 (No. 93-1507, 1995), and cases cited therein. In
view of this decision, and upon reviewing the expenses claimed and
Hughes' supporting submissions, I conclude that the expenses were
reasonable, necessary and not excessive. Hughes may therefore recover
its claimed expenses.



As to the Secretary's assertion that the number of hours claimed is
excessive, I note that Hughes seeks reimbursement for a total of 236.50
hours of legal services in this case. According to the statements, this
total includes attorney hours as well as law clerk, paralegal and clerk
hours. In her reply, the Secretary states that "there is no explanation
as to why [these] hours were necessary to prepare Respondent's case" and
suggests that the hours were duplicative or that Hughes' attorneys were
not knowledgeable in OSHA law. However, as Hughes indicates, the fees
and expenses in this case have been incurred over a several-year period
that involved pre-trial preparation, a hearing and a post-hearing brief,
and two petitions for review and briefing in that regard. As Hughes
further indicates, that it has prevailed shows that its counsel was in
fact well qualified to represent it in this matter. Finally, as noted
above, the Secretary did not respond to Hughes' reply. I conclude that
the number of hours Hughes claims in its application were reasonable,
necessary and not excessive.

The Secretary's final assertion is that Hughes is claiming hourly
attorney rates that are in excess of the allowable amount. Hughes'
application shows that it is claiming $150.00 per hour of attorney time.
The statutory maximum under the Commission's EAJA rules was $75.00 per
attorney or agent hour in 1993, when the adversary adjudication began in
this case. The rate was increased to $125.00 per hour, for fees incurred
on or after July 3, 1997, when the Commission amended its rules in 1997.
/See/ 62 Fed. Reg. 35961 (1997). /See also/ Commission Rule 107, 29
C.F.R. 2204.107. The Commission does not allow for recovery of an amount
over the statutory rate unless it has determined by regulation that an
increase is justified. /See/ Commission Rule 107(b). Moreover, the
Commission has specifically held that the $125.00 hourly rate applies
only to adversary adjudications begun after July 3, 1997. /Contour
Erection and Siding Systems, Inc./, 18 BNA OSHC 1714, 1717 (No. 96-0063,
1999). Hughes may therefore recover its attorney fees at the rate in
effect at the time the citations were issued, that is, $75.00 per hour.

An additional matter requiring resolution is the hourly rate Hughes may
claim in this matter for the time expended by its counsel's law clerk,
paralegals and clerks and by Hayes Environmental Services
("Hayes").^(17) <#N_17_> The application shows that the law clerk's
hourly rate was initially $55.00 and that this amount was then increased
to $60.00; after the law clerk became an associate attorney his rate was
$90.00 per hour, and this rate later increased to $110.00 per hour. The
application further shows that the paralegals were billed at $60.00 per
hour and that the clerks were billed at $45.00 per hour. Finally, the
application shows that Hayes billed its services at $125.00 per hour. I
conclude that all of these hourly rates are excessive, in light of the
$75.00 maximum allowable rate for attorney hours, and that Hughes may
recover for these hours as follows: $50.00 per hour for the law clerk,
and $75.00 per hour after he became an associate attorney; $40.00 per
hour for the paralegals; $25.00 per hour for the clerks; and $75.00 per
hour for the services of Hayes.

Based on the foregoing, and the information contained in its EAJA
application, Hughes is entitled to an award for its expenses in this
matter totaling $5,165.09; this includes the $9.00 parking expense shown
on the Hayes statement dated October 11, 1994, and the expenses totaling
$89.35 shown on the two additional statements submitted with Hughes'
reply. Hughes is also entitled to an award of its fees, including those
set out in the Hayes statements and the two additional statements from
its counsel, as follows:

217.25 Attorney Hours $75.00 Hourly Rate Total - $16,293.75

10.25 Law Clerk Hours $50.00 Hourly Rate Total - $ 512.50

3.20 Paralegal Hours $40.00 Hourly Rate Total - $ 128.00

5.80 Clerk Hours $25.00 Hourly Rate Total - $ 145.00

14.50 Hayes Hours $75.00 Hourly Rate Total - $ 1,087.50

Adding together the above totals, Hughes may recover $18,166.75 in fees.
Adding this amount to the expenses set out /supra/, the total award due
to Hughes is $23,331.84.

So ORDERED.





/S/

------------------------------------------------------------------------

Irving Sommer

Chief Judge



Date:9/19/00

1. Hughes filed its EAJA application on December 5, 1996. A considerable
portion of the intervening time was taken up with proceedings on a
threshold issue of Hughes' eligibility for an EAJA award, an issue which
is no longer before us. /C.J. Hughes Constr., Inc./, 18 BNA OSHC 1998,
1999 CCH OSHD ¶ 31,954 (No. 93-3177, 1999).

2. Appendix A of the standard classifies soil as types "A," "B," or "C"
depending on their "unconfined compressive strength," that is, "the load
per unit area at which a soil will fail in compression," as well as
other criteria. "Type C" soil is the weakest. See section (b),
/Definitions/.

3. Appendix A of the standard describes various tests for performing a
soil analysis, including the thumb penetration test. In describing the
thumb test, the Appendix provides as follows:

Type A soils with an undefined compressive strength of 1.5 tsf [ton per
square foot] can be readily indented by the thumb; however, they can be
penetrated by the thumb only with very great effort. Type C soils with
an unconfined compressive strength of 0.5 tsf can be easily penetrated
several inches by the thumb, and can be molded by light finger pressure.
This test should be conducted on an undisturbed soil sample, such as a
large clump of spoil . . . .

Appendix A(d)(2)(iii).

Further, the appendix describes a "dry strength" test:

If the soil is dry and crumbles on its own or with moderate pressure
into individual grains or fine powder, it is granular (any combination
of gravel, sand, or silt). If the soil is dry and falls into clumps
which break up into smaller clumps, but the smaller clumps can only be
broken up with difficulty, it may be clay in any combination with
gravel, sand, or silt.

/Id/. at (d)(2)(ii).

4. Judge Frye declined to give significant weight to the OSHA lab
classification of the soil as "Type B." He concluded that the policy of
Columbia Gas to regard all soils as "Type C" was the more prudent course.

5. The standard defines a "competent person" as "one who is capable of
identifying existing and predicable hazards in the surroundings, or
working conditions which are unsanitary, hazardous, or dangerous to
employees, and who has authorization to take prompt corrective measures
to eliminate them." The record reflects that Febes, as well as Phillips,
had completed a "Competent Person Seminar" conducted by the "Contractors
Association of West Virginia" and had received training in soil analysis
and trench protection. In her trial brief, the Secretary argued that
Febes was not a competent person but did not make this argument to the
Commission.

6. As to "visual tests" the Appendix provides as follows:

(d) /Acceptable visual and manual tests/.--(1) /Visual tests/. Visual
analysis is conducted to determine qualitative information regarding the
excavation site in general, the soil adjacent to the excavation, the
soil forming the sides of the open excavation, and the soil taken as
samples from excavated material.

(i) Observe samples of soil that are excavated and soil in the sides of
the excavation. Estimate the range of particle sizes and the relative
amounts of particle sizes. Soil that is primarily composed of
fine-grained material is cohesive material. Soil composed of
coarse-grained sand or gravel is granular material.

7. Our conclusion that the Secretary had a reasonable basis for
proceeding on this citation item is further supported by a decision of
Administrative Law Judge Michael H. Schoenfeld in a companion case in
which Columbia Gas was cited for the same alleged violation. In a
decision which became a final order of the Commission without review,
Judge Schoenfeld affirmed this item on a basis similar to that of Judge
Frye. Judge Schoenfeld held as follows:

Looking at the evidence in a light most favorable to Respondent I find
that Respondent has failed to show that there was no indication of a
potential cave-in. Fissured, type C soil, which was possibly subject to
some vibrations from passing truck traffic and to the uncertain effects
of the nearby spoil piles were indications of possible cave-in.

/Columbia Gas of Ohio, Inc./, No. 93-3232, 1995 OSAHRC LEXIS 112, at *23
(Aug. 11, 1995) (footnote omitted).

Judge Schoenfeld's decision was issued shortly before the Secretary
filed her brief before the Commission on its review of Judge Frye's
decision in /Hughes/. The similar reasoning and conclusions set forth in
Judge Schoenfeld's decision further justified the Secretary in pursuing
her litigation position before the Commission. /Mautz & Oren/, 16 BNA
OSHC at 1009, 1991-93 CCH OSHD at p. 41,066.

8. The Secretary withdrew the alleged violation of section
1926.651(g)(2)(i) in her complaint.

9. Administrative Law Judge John H. Frye, III, who has since retired,
presided over the hearing and issued the decision on the merits in this
matter.

10. To be eligible for an award, a company must show that, at the time
it filed its notice of contest, it had a net worth of not more than $7
million. /See/ 29 C.F.R. 2204.105(b) and (c). Respondent's submissions,
which the Secretary apparently does not dispute, establish this criterion.

11. Hughes' foreman at the site testified that it was a "pretty good gas
leak" with "quite a bit of gas flowing freely into the atmosphere." He
said someone driving by could have flipped a cigarette out and hot
exhaust could have caused the gas to ignite, resulting in a "real
serious situation." (Tr. 121-22). Columbia Gas repaired the leak by
installing a 3-inch bull plug. (Tr. 34).

12. OSHA's Technical Center in Salt Lake City classified the soil from
the samples the CO had collected at the site as "Type B" cohesive soil.
(C-12).

13. The Commission pointed out that Judge Frye had not discredited
Febes' statements based upon a credibility determination but, rather, on
his conclusion that Febes had an interest in defending what he had done
at the work site. The Commission found this conclusion unpersuasive
because Febes was working for another company as a laborer at the time
of the hearing.

14. The Commission specifically found the CO's observations about the
trench to be of questionable weight based on the other evidence of record.

15. These individuals were the Columbia Gas welder who was working in
the trench when the CO appeared and the Hughes superintendent who
arrived about halfway through the inspection.

16. Hughes' initial application included a summary of the attorney fees
and expenses it incurred through October 28, 1996. After the Secretary
filed her answer, Hughes filed a reply that included itemized statements
from its counsel through October 28, 1996, and two more statements
through January 6, 1997. The Secretary did not respond to Hughes' reply.

17. Hayes provided consulting services during the pre-trial phase of
this case as well as an expert witness who testified at the hearing.
Hughes' application contains copies of two statements from Hayes billing
a total of 14.50 hours and a total of $9.00 for parking expenses.