Hocking Valley Steel Erectors
“Docket No. 80-1463 SECRETARY OF LABOR,Complainant,v.HOCKING VALLEY STEEL ERECTORS, INC.Respondent.OSHRC DOCKET No. 80-1463DECISION Before:\u00a0 Rowland, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:Administrative Law Judge James D. Burroughs denied an application forattorney fees filed by Hocking Valley Steel Erectors, Inc., under the Equal Access toJustice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980).\u00a0 Hocking Valley sought reviewof the judge’s decision denying the application and Chairman Rowland directed review under29 U.S.C. ? 661(i) and 5 U.S.C. ? 504.\u00a0 See 29 C.F.R. ? 2204.309.\u00a0 We affirmthe judge’s decision. I. A. Hocking Valley Steel Erector, Inc. (\”Hocking Valley\”), a steel erectionsubcontractor, was engaged in construction of an \”open-bay\” type manufacturingbuilding at the Schuler-Leuhart Manufacturing Company in Columbus, Ohio, when the worksitewas inspected by a compliance officer and a compliance officer trainee from theOccupational Safety and Health Administration (\”OSHA\”). Following theinspection, Hocking Valley received a citation alleging a serious violation of theconstruction safety standard at 29 C.F.R. ? 1926.28(a).[[1]]\u00a0 A penalty of $490 wasproposed for the violation.\u00a0 Hocking Valley contested the citation, but, after ahearing, the citation was affirmed and a penalty of $100 imposed by Administrative LawJudge Joe D. Sparks.\u00a0 Hocking Valley petitioned the Commission for review, and reviewwas granted by Commissioner Cottine on one issue raised by Hocking Valley. After HockingValley filed its brief on review to the Commission, the Secretary moved to vacate thejudge’s decision and dismiss the citation on the stated ground that the case was an\”inappropriate vehicle for further litigation.\”\u00a0 The Commission granted theSecretary’s motion.Hocking Valley then filed an application under the Equal Access to JusticeAct (\”EAJA\”) for attorney fees and expenses incurred in litigating the case.\u00a0 The amount sought by Hocking Valley in its initial and two subsequent applicationstotaled $14,187.[[2]]\u00a0 Under EAJA, a private party that prevails against the federalgovernment in an administrative adjudication, has a net worth of no more than 5 milliondollars and employs no more than 500 employees [[3]] is entitled to an award of attorneyfees and other expenses unless the position of the government agency as a party to theproceeding was substantially justified or special circumstances make an award unjust.\u00a0 5 U.S.C. ?? 504(a)(1) & 504(b) (1)(B).\u00a0 That Hocking Valley was theprevailing party and met the limits for net worth and number of employees was notdisputed.\u00a0 However, Judge James D. Burroughs, who was assigned to rule on theapplication after Judge Sparks granted a recusal motion filed by Hocking Valley, deniedHocking Valley’s application\u00a0 on the basis that the Secretary’s position in the casewas substantially justified.\u00a0 Hocking Valley’s petition for review followed.B.As amended at the outset of the hearing, the citation against Hocking Valleystated:29 C.F.R. 1926.28(a).\u00a0 Employee(s) were not protected against falls ofmore than 25 feet by the use of safety lines, safety belts, or other appropriate personalprotective equipment:(a) The Schuler Leuhart steel structured building extension.\u00a0 Employeeswalking at elevated levels above 25′ were not protected from hazard of falling to groundlevel.The compliance officer testified that he observed two Hocking Valleyemployees walk across the structural steel of the 30-foot-high roof of the building underconstruction.\u00a0 The employees were wearing safety belts and lanyards that were nottied off.\u00a0 In the compliance officer’s view the employees were subjected to a fallhazard.\u00a0 Two photos of the employees were taken by the trainee. The complianceofficer was unable to identify by name the men walking on the steel.\u00a0 He testifiedthat he determined they were employees of Hocking Valley through discussion with Riddle,Dell, and Mayo, who were Hocking Valley employees.\u00a0 He also testified that hebelieved Dell and Mayo mentioned that they were working on the roof of the building.\u00a0 He added that Hocking Valley’s foreman told him that Hocking Valley was the onlycontractor who was working on the roof.\u00a0 The compliance officer named the othercontractors at the site and described the work they were doing.\u00a0 He said that theywere mainly working on the ground level and none was working on the roof level.\u00a0 Thisalso led him to conclude that the employees walking on the steel were employed by HockingValley.The compliance officer testified that the fall hazard could be abated byattaching the employees’ safety belt lanyards to lifelines strung between metalstanchions.\u00a0 The stanchions would have to be welded or clamped to the structuralsteel.\u00a0 The Secretary put in evidence a booklet showing fall protection devices, andthe compliance officer marked the two pages that depicted a lifeline system similar to theone he proposed.\u00a0 The compliance officer said he discussed abatement with two HockingValley officers, Paul Fox and Robert Eaton, and they agreed to erect cables for lifelinesfrom horizontal supports in the existing structure.\u00a0 The cables would be at the levelof the steel rather than above it.\u00a0 Eaton, Hocking Valley’s vice president for operations, acknowledged that heagreed to establish a cable system but was under the impression that the system need notbe installed until the building was \”detailed,\” i.e., welding completed andbolts tightened, to the extent that it could withstand a 5,400 pound dead load test.\u00a0 The compliance officer believed that the building had been \”detailed\” atthe time of the inspection.\u00a0 He stated that foreman Swisher had told him that thestructural steel work had been completed on the Monday before the inspection. \u00a0Swisher testified that on the day of the inspection the steel erection was 90 percentcomplete.\u00a0 The compliance officer presumed that the building members were ofsufficient integrity to permit stanchions and cables to be connected, since he believedthe building had been detailed.Eaton, an expert witness, had a B.S. degree in civil engineering, was ajourneyman ironworker, and had been in the steel erection business for fourteen years.\u00a0 He testified that, when inspected, the building was still in the erecting anddetailing stage.\u00a0 The trusses and columns were up, some of the joists had been weldedbut others merely landed between trusses, and the bolts may not have been tightened; therewas more welding and checking of bolts to do.\u00a0 Thus, the building was not yetstructurally sound.\u00a0 He testified that he has never seen a cable or static line usedon a building such as this one \”during the process of erection in commencement of thedetailing.\”Eaton further testified that it would not be possible to string lifelinesfrom stanchions attached to the structural steel at this stage of construction because thestructure was not stable enough.\u00a0 The stanchions would put additional stress on thestructure, and resonance and harmonics \”might tend\” to build up as a personattached to the lifeline walked around.\u00a0 When resonance and harmonics built up, itwould make walking along the structure impossible, and, \”[Y]ou would probably end upfalling in the hole.\” A person who fell would almost be assured of knocking off someof the joists that had not been welded, and he would be cut in half if the joists landedon him.\u00a0 The falling joists would also be hazardous for anyone working below. \u00a0Eaton also stated that the lifeline system could not comply with the requirements of 29C.F.R. ? 1926.104 (b) & (d) in several respects:\u00a0 It could not be secured abovethe point of operation because there was no higher part of the structure to which tofasten it; the lanyards would have to be more than six feet long or additional cableswould have to be put up, which the building could not support; and, the cable system couldnot hold 5,400 pounds. [[4]]\u00a0 He added that erection of a cable system on the beamline would create a tripping hazard.\u00a0 He also stated that, other than safety beltsand lanyards, there were no alternative means of fall protection for ironworkers on thistype of building.\u00a0 Safety nets would not work because \”some of the pieces had tocome up through the interior of the building.\”CIn its post-hearing brief, Hocking Valley advanced the following arguments:\u00a0 (1) thecompliance officer’s testimony was not credible; (2) the Secretary failed to prove thatthe men walking on the steel were employees of Hocking Valley; (3) the Secretary failed toprove that the alleged employees were working or were performing an operation, as requiredfor 29 C.F.R. ? 1926.28(a) to be applicable; (4) the Secretary failed to prove a feasiblemeans of abatement; (5) Hocking Valley established the defenses of impossibility andgreater hazard; (6) the Secretary failed to prove that a reasonable person familiar withrespondent’s industry would have protected against the hazard by the means specified; (7)section 1926.28(a) was invalidly promulgated and is unenforceably vague.\u00a0 TheSecretary declined to file a brief.Judge Sparks affirmed the citation.\u00a0 He found that the two men walkingon the steel were employees of Hocking Valley.\u00a0 He based this finding on evidencethat the other contractors on the site were working in areas other than the roof, thatDell, Swisher, and Mayo mentioned that some of Hocking Valley’s employees were working onthe roof, and that Eaton stated that more work on the steel needed to be done at the timeof the inspection.\u00a0 The judge also found that the two men were walking from point topoint in the course of their duties for Hocking Valley and thus were performing\”operations\” within the meaning of section 1926.28(a).\u00a0 The judge concludedthat the Secretary had established a prima facie violation of section 1926.28(a) under thetests set out in S & H Riggers & Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260,1979 CCH OSHD ? 23,480 (No. 15855, 1979).\u00a0 He held that the employees were exposedto an obvious 30-foot fall hazard requiring the use of personal protective equipment andthat the Secretary proposed the use of lifelines anchored on the steel by stanchions, towhich safety belts and lanyards could be attached, as the appropriate means of protection.\u00a0 The judge noted that S & H Rigger’s use of a reasonable person test givesemployers reasonable notice of what safety precautions are required and satisfies dueprocess requirements.\u00a0 The judge concluded that Hocking Valley showed that the use oflifelines on the same level as the beams on which the employees worked presented a greaterhazard than use of no fall protection at all.\u00a0 However, he concluded that the greaterhazard defense was not established because Hocking Valley did not present any evidencethat alternative means of protection were unavailable or that a variance application wasinappropriate.\u00a0 The judge also rejected Hocking Valley’s impossibility defense,concluding (1) the fact that a lifeline cannot support 5,400 pounds is not a defense to asection 1926.28(a) violation, and (2) Hocking Valley did not prove that alternative meansof protection were unavailable.Hocking Valley petitioned for review of the judge’s decision, raisingessentially the same arguments as it made before the judge. Commissioner Cottine grantedthe petition in part, limiting review to the issue of whether the judge erred in affirmingthe citation in light of Hocking Valley’s defense that personal protective equipment wasinappropriate under the cited conditions.\u00a0 After Hocking Valley filed its brief onreview, the Secretary moved to vacate the judge’s decision and dismiss the citationbecause \”the Secretary upon additional consideration has determined that this case isan inappropriate vehicle for further litigation.\”\u00a0 The Commission granted hismotion.II.A.Hocking Valley’s subsequent fee application was assigned to Judge Burroughs after JudgeSparks granted a recusal motion filed by Hocking Valley.\u00a0 After the parties declinedto request further proceedings, Judge Burroughs decided the case on the basis of thewritten record.\u00a0 He concluded that the Secretary’s motion to dismiss the citationcould not be deemed an admission that his position was not substantially justified. \u00a0The judge noted that a ruling on the merits in favor of Hocking Valley would not result inan automatic award of fees because EAJA does not mandate a fee award whenever thegovernment loses a case.\u00a0 He also noted that the determination of whether theSecretary’s position was substantially justified must be based on whether the facts, asdeveloped in the record, support his position as being reasonable in law and fact. \u00a0The judge then reviewed the evidence and concluded that the Secretary’s determination thatthe persons on the steel framework were Hocking Valley employees and were engaged inperforming their job was reasonable, fair, did not involve any overreaching, and wassupported by substantial evidence.\u00a0 He added that, in finding a violation of section1926.28(a), Judge Sparks applied Commission precedent, and his findings and inferenceswere sufficient to justify a reasonable person in concluding that there was a section1926.28(a) violation.\u00a0 He also agreed with Judge Sparks that the evidence was notsufficient to establish the greater hazard or impossibility defenses.On review of the denial of the fee application, Hocking Valley argues thatthis is a \”classic\” example of a case in which the government should be requiredto pay attorney fees because it involved unreasonable government prosecution calculated toforce a small business to \”knuckle under\” to unreasonable demands.\u00a0 HockingValley contends that the Secretary failed to prove that the persons observed by thecompliance officer walking on the steel were employees of Hocking Valley, and, knowingthat the compliance officer could not identify these persons, the Secretary should nothave pursued the case.\u00a0 Hocking Valley also maintains that (1) the Secretary’scomplaint failed to allege all the elements of a section 1926.28(a) violation, (2) theevidence failed to establish that the persons observed walking on the steel were engagedin an \”operation\” within the meaning of section 1926.28(a), (3) the Secretaryfailed to introduce any evidence of a feasible means of abatement relevant to thisconstruction project, and (4) Hocking Valley established the greater hazard andimpossibility defenses.\u00a0 Hocking Valley asserts that once the Secretary learned ofthe evidence supporting its defenses, he should have withdrawn the citation. \u00a0Finally, Hocking Valley contends that Judge Burroughs improperly placed on the employerthe burden of proof concerning \”substantial justification\” in that the judge didnot rule that, by failing to explain why he sought to dismiss the citation, the Secretaryfailed to prove that his position was substantially justified.The Secretary argues that in affirming the citation Judge Sparks followedCommission precedent, and that the rulings of both Judge Sparks and Judge Burroughsconvincingly demonstrate that the Secretary’s position was substantially\u00a0 justified.\u00a0 Additionally, the Commissioner’s direction for review was limited to the issue ofthe appropriateness of personal protective equipment, lending support to the Secretary’sclaim that his position was substantially justified.\u00a0 The Secretary maintains thathis motion to dismiss the citation on review does not show that his position was notsubstantially justified.\u00a0 He contends that a decision to seek dismissal may be basedon any of several factors, and he is not required to reveal his litigation strategy.\u00a0 He adds that a determination of whether his position was substantially justifiedmust be based on the facts developed in the record, and Judge Burroughs did not place animproper burden on Hocking Valley.\u00a0 Finally, the Secretary rejects as erroneousHocking Valley’s argument that the Secretary was required to show that the employees wereworking in order to establish a violation of section 1926.28(a).B.The statutory criterion when reviewing EAJA applications is whether the position of thegovernment as a party to the proceeding was substantially justified.\u00a0 Before makingthis determination in this case, it is appropriate to consider what Congress intended inestablishing the \”substantial justification\” standard.\u00a0 Identicalexplanations appear in the House and Senate Judiciary Committee reports on EAJA, asfollows:The test of whether or not a Government action is substantially justified isessentially one of reasonableness.\u00a0 Where the Government can show that its case had areasonable basis both in law and fact, no award will be made.Certain types of case dispositions may indicate that the Government actionwas not substantially justified.\u00a0 A court should look closely at cases, for example,where there has been a judgment on the pleadings or where there is a directed verdict orwhere a prior suit on the same claim had been dismissed.\u00a0 Such cases clearly raisethe possibility that the Government was unreasonable in pursuing the litigation.The standard, however, should not be read to raise a presumption that theGovernment position was not substantially justified, simply because it lost the case.\u00a0 Nor, in fact, does the standard require the Government to establish that itsdecision to litigate was based on a substantial probability of prevailing.S. Rep. No. 96-253, 96th Cong., 1st Sess. 6-7 (1979), reprinted in Award ofAttorney’s Fees Against the Federal Government: Hearings Before the Subcom. on Courts,Civil Liberties & the Administration of Justice, 96th Cong., 2d Sess. 242-43[hereinafter cited as Hearings]; H.R. Rep. No. 96-1418, 96th Cong. 2d Sess. 10-11 (1980),reprinted in Hearings 341-42 and in [1980] U.S. Code Cong. & Ad. News 4989-90. \u00a0The House Judiciary Committee report also includes the following elaboration:The standard and burden of proof adopted in [EAJA] represents an acceptablemiddle ground between an automatic award of fees and the restrictive standard proposed bythe Department of Justice [that would permit fees to be awarded only where the governmentaction was arbitrary, frivolous, unreasonable, or groundless].\u00a0 It presses the agencyto address the problem of abusive and harassing regulatory practices.\u00a0 It is intendedto caution agencies to carefully evaluate their case and not to pursue those which areweak or tenuous.\u00a0 At the same time, the language of the section protects thegovernment when its case, though not prevailing, has a reasonable basis in law and fact.\u00a0 H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. at 13-14, reprinted in Hearings 344-45,and in [1980] U.S. Code Cong. & Ad. News 4992-93.\u00a0 Thus, the \”substantialjustification\” standard is intended to be a middle ground between automaticallyawarding attorney fees against the government whenever it loses a case and awardingattorney fees against the government only when its action was arbitrary or frivolous.\u00a0 Tyler Business Services, Inc. v. NLRB, 695 F.2d 73 (4th Cir. 1982).Based on this understanding of the statutory standard of review, we concludethat the position of the Secretary as a party to the proceeding before us wassubstantially justified.\u00a0 This case is in an unusual posture for analysis of thisquestion.\u00a0 In the only decision on the merits in this case, Judge Sparks ruled infavor of the government’s position.\u00a0 Hocking Valley is the prevailing party onlybecause on review the Secretary chose to terminate the case.\u00a0 However, even if theSecretary had not prevailed before the judge, Hocking Valley would not have been entitledto an automatic fee award.\u00a0 The substantial justification standard, \”should notbe read to raise a presumption that the Government position was not substantiallyjustified, simply because it lost the case.\”\u00a0 S. Rep. No. 96-253, 96th Cong, 1stSess. 7 (1979), reprinted in Hearing at 243; accord, Broad Avenue Laundry & Tailoringv. United States, 693 F.2d 1387, 1391 (Fed. Cir. 1982) (\”The mere fact that theUnited States lost the case does not show that its position in defending the case was notsubstantially justified.\”); Wyandotte Savings Bank v. NLRB, 682 F.2d 119, 120 (6thCir. 1982) (\”The mere fact that the NLRB was the losing party….does not mean thatthe Board was not substantially justified in seeking enforcement of its order.\”)\u00a0 Thus, in order to conclude that the Secretary’s position in this case was notsubstantially justified, we would have to find that the judge erred in affirming thecitation on the merits and further conclude that the Secretary’s case did not even have areasonable basis in law and fact.\u00a0 See 29 C.F.R. ? 2204.106(a); Tyler BusinessServices, Inc. v. NLRB, supra.We are unable to reach such a conclusion.\u00a0 Rather, we conclude that theSecretary’s case was reasonable under Commission precedent and the positions adopted bythe Secretary on the various issues in the case were at least arguably correct.Even as to the aspects of the case that Hocking Valley attacks most sharply,the Secretary’s position was substantially justified.\u00a0 On the issue of whether themen walking on the steel roof beams were employees of Hocking Valley, the complianceofficer’s conclusion that the men were Hocking Valley employees is reasonable in view ofthe fact that Hocking Valley was the only contractor working on the roof level.\u00a0 Incases before the Commission, facts need to be proved by only a preponderance of theevidence, not by clear and convincing evidence or beyond a reasonable doubt.\u00a0 Heath& Stich, Inc., 80 OSAHRC 65\/E12, 8 BNA OSHC 1640, 1980 CCH OSHD ? 24,580 (No. 14188,1980), appeal dismissed, 641 F.2d 338 (5th Cir. 1981); Armor Elevator Co., 73 OSAHRC54\/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD ? 16,958 (No. 425, 1973).\u00a0 It would havebeen preferable for the compliance officer to have been able to identify these men by nameor specify who told him that the men were Hocking Valley employees.\u00a0 Nevertheless,under these facts the Secretary was substantially justified in taking the position that hehad sufficient evidence to show by a preponderance that the men walking on the beams wereemployees of Hocking Valley.Hocking Valley also presented considerable evidence of the difficultiesinvolved in using a lifeline system to which employees on the roof level could fastentheir safety belt lanyards.\u00a0 However, Judge Sparks held that under Commissionprecedent Hocking Valley failed to prove the impossibility and greater hazard defenses.\u00a0 We conclude that these issues at least presented close questions and theSecretary’s position had substantial justification.\u00a0 Hocking Valley’s vice presidentEaton told the compliance officer during the inspection that Hocking Valley would erectcables from horizontal members of the existing structure to serve as lifelines to whichsafety belt lanyards could be attached.\u00a0 Thus, prior to the hearing, the Secretarywas justified in believing that implementation of a lifeline system was an appropriateabatement method.\u00a0 Eaton then testified at the hearing that stanchions attached tothe structure for the purpose of securing lifelines would put stress on the structure andresonance and harmonics \”might tend\” to build up, causing vibrations as a personwearing a tied-off safety belt walked on the structure.\u00a0 Hocking Valley maintainsthat once this evidence was presented, the Secretary should have withdrawn the citation.Hocking Valley is correct that facts that become known during the course oflitigation could make a position of the government unreasonable that was reasonable at theoutset of the litigation.\u00a0 Under EAJA, when this occurs the government must actfairly expeditiously to alter its position appropriately in light of the new facts. \u00a0Alspach v. District Director of Internal Revenue, 527 F.Supp. 225 (D. Md. 1981). \u00a0However, Hocking Valley is incorrect that Eaton’s testimony on the difficulties involvedin using a lifeline system on the roof level made it unreasonable for the Secretary tocontinue to seek affirmance of the citation.\u00a0 While Eaton in his testimony pointedout a possible vibration problem caused by a system of lifelines supported by stanchions,he was far from certain that this type of system actually would cause vibrations.\u00a0 Hestated only that it \”might tend\” to do so. \u00a0 Indeed, since the steelerection work was 90 percent complete, it seems implausible that significant vibrationswould have been caused by this lifeline system. \u00a0 Moreover, it appears that thisasserted problem could have been avoided by attaching the lifelines not to stanchions butto horizontal members of the existing structure, as Eaton told the compliance officerwould be done.\u00a0 Thus, it was reasonable for the Secretary to continue to seekaffirmance of the citation after hearing Eaton’s testimony.Hocking Valley’s additional argument that it could not erect a lifelinesystem that would comply with the requirements of 29 C.F.R. ? 1926.104 does notconstitute a defense to an alleged section 1926.28(a) violation.\u00a0 Martin-TomlinsonRoofing Co., 80 OSAHRC 4\/B12, 7 BNA OSHC 2122, 1980 CCH OSHD ? 24,167 (No. 76-2339,1980); J.W. Conway, Inc., 79 OSAHRC 75\/F3, 7 BNA OSHC 1718, 1979 CCH OSHD ? 23,869 (No.15942, 1979).\u00a0 We have considered Hocking Valley’s remaining contentions and findthem unpersuasive.\u00a0 As Judge Sparks’ and Judge Burroughs’ discussions of thesecontentions shows, the Secretary’s position as to these contentions was at least arguablycorrect and, thus, was substantially justified.Our conclusion that the Secretary’s position as a party to the proceeding wassubstantially justified is not aided by the Secretary’s failure to explain why he chose onreview not to litigate the case but to move that the citation be vacated.\u00a0 Hisoblique statement that \”the Secretary upon additional consideration has determinedthat this case is an inappropriate vehicle for further litigation\” provides noinsight into the termination of this case.\u00a0 In fact, one could infer from hisunexplained abandonment of his case that the Secretary believed that the Commission wouldvacate the citation if it ruled on the case.\u00a0 While this is not tantamount to anadmission that his position was not substantially justified, it is not supportive of thesubstantial justification otherwise found on this record.\u00a0 Moreover, the Secretary’sunexplained termination of the case at this point may well leave Hocking Valley with theimpression that it was put through the expense and inconvenience of contesting and tryinga citation that was issued for no valid purpose.\u00a0 The Secretary’s cause would havebeen better served had he candidly explained why he had decided to terminate the case,even if to do so would have required him to admit that he believed the case was weak orthat the violation was so momentary that it did not warrant litigation.However, EAJA does not permit an award of fees if the Secretary’s position asa party to the proceeding was substantially justified. As explained above, we haveconcluded that the Secretary’s position in seeking affirmance of the citation wassubstantially justified under Commission precedent.\u00a0 Though the Secretary’swithdrawal is not clearly explained, the substantial justification of his position on themerits is not altered by the termination on review when the entire case is considered.\u00a0 Indeed, by terminating the case the Secretary did precisely what Hocking Valleyurges the Secretary should have done, albeit not as quickly as Hocking Valley desired.Therefore, Judge Burroughs’ decision denying Hocking Valley’s fee application is affirmed.\u00a0 The document designated by Hocking Valley as its third application for fees andcosts also is denied.\u00a0 SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 APR 27 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] 29 C.F.R. ? 1926.28(a) states:The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe employees.[[2]] Hocking Valley’s initial application for fees and costs, filed onJanuary 5, 1982, sought an award of $8,752.76.\u00a0 Hocking Valley filed a secondapplication on March 29, 1982, seeking an additional award of $2,134.23 for fees and costsincurred up to February 15, 1982.\u00a0 Judge Burroughs’ decision denying bothapplications\u00a0 was sent to the parties on April 6, 1982.\u00a0 On August 25, 1982,while this case was pending on review, Hocking Valley filed a third application seeking anadditional award of $3,300.18 for fees and costs incurred up to August 10, 1982. \u00a0Hocking Valley’s second and third applications are merely supplements to its initialapplication, submitted simply to cover fees and expenses incurred in this case afterHocking Valley’s initial application was filed.\u00a0 It was therefore erroneous to labelthem as separate fee applications, and it would be inappropriate to consider and disposeof them independently of each other or of the initial fee request.\u00a0 Rather, suchadditional submissions should be labeled as supplements to the original fee applicationand normally should be considered together.\u00a0 We dispose of both the initial feeapplication and the two supplemental requests in this decision.\u00a0 Since the thirdrequest merely supplements the first two to cover a later time period, it need not beinitially considered by an administrative law judge.[[3]] The net worth limitation does not apply to charitable or othertax-exempt organizations described in ? 501(c)(3) of the Internal Revenue Code, 26 U.S.C.? 501(c)(3), nor does it apply to cooperative associations as defined in ? 15(a) of theAgricultural Marketing Act, 12 U.S.C. ? 1141j(a).\u00a0 Additionally, for individuals thenet worth limitation is $1 million and there is no limitation on the number of employees.\u00a0 5 U.S.C. ? 504 (b)(1)(B); 29 C.F.R. ? 2204.105(b).[[4]] 29 C.F.R. ? 1926.104(b) states:Lifelines shall be secured above the point of operation to an anchorage orstructural member capable of supporting a minimum dead weight of 5,400 pounds. 29 C.F.R. ? 1926.104(d) states:Safety belt lanyard shall be a minimum of 1\/2-inch nylon, or equivalent witha maximum length to provide for a fall of no greater than 6 feet.\u00a0 The rope shallhave a nominal breaking strength of 5,400 pounds.”