“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 whileexiting from a trench in which they were working. The ladder, however,only covered the distance between the bottom of the trench and an area 6to 8 feet below the top of the trench wall. The Secretary of Laboralleges that Lowe violated the OSHA standard requiring that a ladderextend at least three feet above \”the landing.\” Lowe contends inresponse that the cited standard, which on its face applies to allladders used in any type of construction activity, does not apply herebecause a different standard governs the safety of employees exitingtrenches. Lowe asserts it was in compliance with this trenchingstandard. We agree with Lowe’s argument that the standard cited by theSecretary is preempted by the more specifically applicable trenchingstandard, and we therefore vacate citation item 1, which alleged aviolation of the ladder standard.At the time of the alleged violation, Lowe was a subcontractor on awater main project in Toledo, Ohio. Two of its employees were working ina trench, boring and installing casing in preparation for placement ofan underground pipe, when an OSHA compliance officer inspected theworksite. The trench was 35 to 40 feet long, 7 to 8 feet wide at thebottom, 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 fromthe bottom and then sloped. A ladder described as 10 or 12 feet longextended from the bottom of the trench to a point 6 to 8 feet below thetop of the north wall. The employees working in the trench used theladder to ascend the vertical lower portion of the wall. Then, at aboutthe five-foot level, the employees got off of the ladder and went up thesloped portion of the wall on foot.Because the ladder did not extend above the top of the trench’s northwall, but rather ended considerably below it, and because no grab railswere provided, the Secretary alleged in citation item 1 that Lowe hadcommitted 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 thelanding. When this is not practical, grab rails, which provide a securegrip for an employee moving to or from the point of access, shall beinstalled.A penalty of $490 was proposed.Lowe argued before the administrative law judge that the citation itemshould be vacated because the cited standard, which applies toconstruction work in general, is preempted by the specific trenchingstandard 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 providedand located so as to require no more than 25 feet of lateral travel.The judge rejected Lowe’s preemption argument, noting that the trenchingstandards do not contain any specific requirements for safe use ofladders. 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 promulgatedunder 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 overany different general standard which might otherwise be applicable tothe same condition, practice, means, method, operation, or process. . . .(2) On the other hand, any standard shall apply according to its termsto any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in SubpartB or Subpart R of this part, to the extent that none of such particularstandards applies. . . .Section 1910.5(c) therefore implements the well-established principle ofstatutory construction that the specific takes precedence over thegeneral, _see_ _Clifford F. MacEvoy Co. v. United States,_ 322 U.S. 102,107, 64 S.Ct. 890, 894 (1944), by modifying the employer’s unqualifiedstatutory duty to comply with all OSHA standards.In determining whether a specific standard preempts a general one, weare guided by the principle that the standards should be applied so asto 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 arulemaking decision made by the Secretary in promulgating the specificstandard, we will hold that the general standard is preempted under theterms of section 1910.5(c)(1).[[1\/]]Previous decisions illustrate this principle. In _Diebold, Inc.,_ 76OSAHRC 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 (6thCir. 1978), the Commission concluded that the general machine guardingstandard was preempted by the more specifically applicable mechanicalpower press standard, which permitted a 3-year grace period within whichto meet the point of operation guarding requirements on punch pressesthat had been installed prior to August 31, 1971. The Commissionreasoned that the mechanical power press standard embodied a specificdecision that older punch presses did not require immediate guarding,and concluded that it would be improper to override that decision byrequiring 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 Secretarydid not intend steel erection interior fall protection standard to applyonly to multi-tiered buildings; standard accordingly applied tosingle-story structure at issue and preempted general construction fallprotection standard); _Langer Roofing & Sheet Metal, Inc. v. Secretary,_524 F.2d 1337, 1339 (7th Cir. 1975)(because Secretary in roof perimeterguarding standard specifically exempted roofs with slopes less than 4inches in 12, general floor guarding standard could not be applied torequire perimeter guarding of flat roofs); _General Supply Co.,_ 77OSAHRC 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 propelledmobile scaffolds requiring guarding only when at least 10 feet above thefloor preempts general scaffolding standard requiring guardrails on somescaffolds that are 4 to 10 feet above the floor).We must therefore determine whether application of the generalconstruction industry standard for ladders at section 1926.450(a)(9)would defeat a rulemaking decision made by the Secretary in promulgatingthe present version of the specific trench exit standard at section1926.652(h). The legislative history of the latter standard illuminatesthe Secretary’s rulemaking intent. In Title 29 C.F.R., revised as ofJanuary 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 3feet above the top of the excavation, shall be provided and so locatedas 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 beprovided in any trench 3 feet or more deep, and that the ladder extendat least 3 feet above the top of the trench. The ladder specificationrequirement was, of course, essentially the same as the requirement ofthe standard cited in this case since \”3 feet above the top of theexcavation\” can be equated with \”36 inches above the landing.\”On July 29, 1972, notice was published in the Federal Register of aproposed amendment to section 1926.652(h), based on the recommendationof the Advisory Committee on Construction Safety and Health. 37 Fed.Reg. 15317. The notice proposed that the standard be amended to read asit does today, and the reason given for the change was \”to provide moreflexibility in methods of egress from the trenches described\” in thestandard. 37 Fed. Reg. 15317-18. On November 16, 1972, the proposedamended standard was adopted; it became effective 30 days later. 37 Fed.Reg. 24345-46.As shown above, section 1926.652(h) was originally a specificationstandard–ladders must be used and must extend \”at least 3 feet abovethe top of the excavation.\” It was amended in late 1972 to become aperformance standard–means of egress from a trench must be \”adequate.\”The entire purpose of a performance standard is to allow flexibility notavailable in specification standards, and it was just such flexibilitythat the Secretary sought to afford by amending the standard.Section 1926.450 contains a number of detailed specifications thatladders used in construction work must meet. If section 1926.450(a)(9)is deemed applicable to ladders in trenches, it follows that the otherstandards in section 1926.450 would also apply. Application of a numberof detailed specification standards to ladders in trenches wouldeliminate the very flexibility that the Secretary sought to afford byamending section 1926.652(h). Moreover, some of the ladder standardswould be anomalous when applied to ladders in trenches. For example,section 1926.450(a)(7) provides that \”[p]ortable ladders shall be usedat such a pitch that the horizontal distance from the top support to thefoot of the ladder is about one-quarter of the working length of theladder (the length along the ladder between the foot and the topsupport) . . . . \” The narrow width of trenches,[[3\/]] coupled with thepresence of pipe that is often laid in trenches, would often make itimpossible to meet this requirement.[[4\/]]It is also significant that the Secretary included a provision in thestandards for _excavations_ making the section 1926.450 standardsspecifically applicable to ladders used in excavations,[[5\/]] but didnot include such a provision in the trenching standards. The excavationand trenching standards are located in the same subpart and addresssimilar hazards. The original versions of the trench and excavationstandards were drafted and promulgated at the same time. The Secretaryclearly intended to distinguish between ladders used in excavations andthose used in trenches. As noted above, the trench standard for laddersrequired that ladders extend at least three feet above the top of thetrench, while ladders used in excavations had to comply not only withthis requirement but also with all of the other requirements of section1926.450. Moreover, when the Secretary amended section 1926.652(h), shedid not exhibit an intention to make the ladder specification standardsapplicable to trenches. To the contrary, she removed the one ladderspecification contained in section 1926.652(h)–the three footrequirement–in the interest of affording employers flexibility. Weconclude that the history and purpose of section 1926.652(h) demonstratethat the Secretary intended that the section 1926.450 ladderspecification standards would not apply to ladders used in trenches.This does not mean that employer may use in trenches ladders that areclearly unsafe. Whatever means of egress is provided must meet the testof adequacy established by section 1926.652(h). Our conclusion meansonly that the adequacy of the means of egress is not to be measured bythe specification standards in section 1926.450. Instead, it will bemeasured by whether the facts show that the means of egress provided isreasonably safe, given the particular circumstances existing at the siteof the trench. In this case, Lowe has consistently argued that the meansof egress that its employees used met that test. The record supportsthis argument. According to the testimony of the compliance officer andone of Lowe’s employees whom he observed exiting the trench. Lowe’semployees used the ladder to ascend the vertical first five feet of thetrench; then they stepped off of the ladder and went up the slope of thenorth wall on foot. The compliance officer acknowledged that the ascentup the slope was not a \”hand and knees\” operation, but rather wasaccomplished \”relatively easily.\” While the means of access was notideal, due to the possibility of earth movement while employees wereexiting the trench, it apparently was as safe as any other option thatwas available to the employer. It was therefore \”adequate.\”Based on our conclusion that section 1926.652(h) preempts the citedstandard in this case, we vacate citation item 1 alleging a seriousviolation of section 1926.450(a)(9). In all other respects, the judge’sdecision is affirmed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: _April 20, 1989_————————————————————————SECRETARY OF LABOR,Complainant,v.LOWE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 85-1388APPEARANCES: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 theOccupational Safety and Health Act of 1970 (Act) to contest a citationand 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, conductedan inspection of a work site where respondent, a subcontractor, was incharge of underground boring at Talmadge Road in Toledo, Ohio.In the course of its operation, respondent is alleged to have violatedthe specific trenching standard at 29 C.F.R. ? 1926.652(b) whichrequires that:Sides of trenches in unstable or soft material, 5 feet or more in depthshall be shored, sheeted, braced, sloped, or otherwise supported bymeans 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 pipeshields at the base of the trench which was not shored or braced. Thetrench 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 thetrench (Ex. C-1; Tr. 16-17).Mr. Wiggins also asserted that he did not enter the trench to measure itbecause of the unsafe conditions. Mr. Larry Wagner, the generalcontractor, indicated to him that the trench was approximately 18 feetwide 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 1rather than a 45? slope of 1 to 1 which he believed was required. Hefurther noted that a large backhoe was operated within 3 to 4 feet fromthe edge of the trench (Ex. C-2; Tr. 25).Mr. Paul Wagner of Waynesfield Construction Company, the generalcontractor, testified that his company performed the excavating work atthe trench site. Although he was not at the site during the inspection,he was present until the excavation work was completed and the boringmachine was placed in the trench. Mr. Wagner, with 25 years’ experiencein engineering and excavation, stated the entire depth of the trench wasdug 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, estimatedit was 7 to 8 feet wide at the bottom, 25 to 30 feet wide at the top and14 to 15 feet deep (Tr. 131, 133, 134). He stated the trench was dug insoil with about 1? feet of sand near the top, but otherwise the soil wascomposed of hard clay (Tr. 149, 150).To establish noncompliance with this section, the Secretary must showthat (1) the trench is at least five feet deep, (2) a significantportion of the trench wall is composed of soft or unstable soil, and (3)the trench is neither shored nor sloped appropriately from the bottom ofthe trench. _See_ _National Industrial Constructors, Inc.,_ 81 OSAHRC94\/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, 9BNA 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 afact with absolute certainty. Instead, he must prove the existence of afact by a preponderance of the evidence . . . in other words, theevidence must establish the existence of the fact the Secretary seeks toprove is more likely than not.\” _Anaconda Aluminum Co., _81 OSAHRC27A\/A2, __ BNA OSHC __, 1981 CCH OSHD ? 25,299, p. 31,338 (No. 13102,1981). This standard is met when the record considered as a wholecontains preponderating evidence in support of his allegations._Ultimate Distribution Systems, Inc., _82 OSAHRC 22\/B12, 10 BNA OSHC1568, 1982 CCH OSHD ? 25,011, p. 32,653 (No. 79-1269, 1982).It is concluded from the evidence in this case that the Secretary hasfailed to establish the violation by a preponderance of the evidence. The inspecting officer made no test of the soil and apparently made adetermination of the soil’s composition based on his observation fromthe top of the trench. On cross-examination, he agreed no frost waspresent but believed the bottom five to eight feet of the trench weredug in clay and the soil above the clay appeared to be a black andyellow sandy type\” (Tr. 66-68).Both respondent’s foremen and the excavating contractor maintained thesoil was hard and compact which adequately rebuts the complianceofficer’s testimony. It is also reasonable to conclude that any materialthat fell back into the trench, which was not specifically identified,was caused by the employees climbing out of the trench, or was dredgedby the boring machine (Tr. 19, 137). The evidence also does not showthat the soil’s stability was affected by any wetness (Tr. 88).Respondent further contends that the sides of the trench were verticalfrom 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 _employeesworking 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 foran 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 boringequipment, a ladder provided to and from the excavation did not extendabove the access point but terminated below the edge of the wall.Mr. Wiggins testified that the ladder in question did not extend to thetop of the trench and thus it was necessary for the employees to scalethe sides of the trench to get to and from the ladder. He stated that noguardrails were present and there was a hazard of the employees fallingon 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 upor scaling the wall of the trench was the only means of exiting thetrench but the side had been cut back in the area of the ladder so theemployees could walk out (Tr. 135, 151). It is indicated, however, thatany cutting back of the trench was for the purpose of sloping the sidesof the entire trench (Tr. 140).The Commission has held that in order to establish a violation, as inthis case, it is necessary for the Secretary to show by a preponderanceof the evidence that (1 ) the cited standard applies; (2) there was afailure to comply with the standard; (3) employees had access to theviolative condition; and (4) the cited employer either knew or couldhave 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 InternationalCorp.,_ 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 thisinstance in light of the specific trench requirement at section1926.652(h). Thus, it is contended the specific requirement which refersto an \”adequate means of exit, such as a ladder or steps\” hasapplication rather than the \”general requirements\” of \”ladders\” ascited. In addition, respondent notes that the specific excavationrequirements include the provision that a ladder must meet therequirements of subpart L [1926.450(a)(9)], which is not part of thetrenching 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 beapplied to trenches and that it was error to apply excavation standardsto trenches. The court applied the well-established maxim of _expressiounius exclusio alterius _(mention of one thing is the exclusion of theother). Also, it is pointed out that the law is well settled thatspecific requirements prevail over general requirements in the sameenacted 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 notbe held to apply to a matter specifically dealt with in another part ofthe same enactment . . . . Specific terms prevail over the general inthe same or another statute which otherwise might becontrolling.\”_Ginsberg & Sons v. Popkin,_ 285 U.S. 204, 208.While the foregoing reasoning appears sound, it is without merit basedon the facts of this case.There are no specific requirements governing safe use of ladders in thetrenching 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 least3 feet above the top of the excavation . . . .From the foregoing, there is no reason to believe that the safe use ofladders should require other than their extension three feet above thetop of a trench as cited. An employer choosing to use a ladder whileperforming work in a trench cannot escape his responsibility under theAct, which would include compliance with any general standards settingforth requirements for safe use of ladders.The undisputed facts also show that there was a failure to comply withthe standard as the ladder did not extend above the top of the trenchand grab rails were not present. The evidence, including photographs asexhibits, reflects that employees were exposed to fall hazards, bothbefore and after use of the ladder in this case.The violation is deemed serious in accordance with section 17(k) of theAct because a fall into the trench could result in death or seriousphysical harm due to the presence of piping and machinery.A determination of an appropriate penalty must now be made. TheCommission, in all contested cases, has the authority to assess civilpenalties for violations of the Act. Section 17(j) of the Act provides:The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.The determination of what constitutes an appropriate penalty is withinthe 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 isthe principal factor to be considered. _Nacirema Operating Co., _72OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The Commission stated in _Secretary v. National Realty and ConstructionCo., _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 gravityare: (1) the number of employees exposed to the risk of injury; (2) theduration 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 theSecretary conducted an inspection of the aforementioned work site. As aresult of the inspection, respondent was issued a citation with noticeof proposed penalty.3. At the time of the inspection, respondent’s employees were engaged inwelding pipe shields at the base of a trench.4. The trench, exceeding five feet in depth, was dug in predominatelyhard, stable soil.5. A ladder used by employees working in the trench did not extend threefeet 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 anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter hereinpursuant to section 10(c) of the Act.2. Respondent is, and at all times pertinent hereto, required to complywith safety and health regulations promulgated by the Secretary pursuantto section 6(a) of the Act.3. On October 23, 1985, respondent was not in violation or the standardat 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 herebyvacated.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 ishereby assessed.Dated this 20th day of November, 1986.PAUL L. BRADYJudge————————————————————————LOWE CONSTRUCTION COMPANY,Applicant,v.SECRETARY OF LABOR,Respondent.OSHRC Docket No. 85-1388APPEARANCES: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 applicationsfor attorney’s fees and expenses pursuant to the Equal Access to JusticeAct, 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 whichindividuals, associations and small businesses were deterred by largeexpenses 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 statedthe 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 theUnited states, fees and other expenses incurred by the party inconnection with the proceeding, unless the position of the government asa party was substantially justified or special circumstances make anaward unjust. 5 U.S.C. ? 504(a)(1). EAJA applies to any adversaryadjudication pending on, or commenced after, October 1, 1981. Pub. L.No. 96-481, ? 208, 94 Stat. 2325, 2330. To be eligible for an award offees and expenses under EAJA, a party that is a business, anassociation, or a private or public organization must employ no morethan 500 employees and, except for certain tax exempt organizations andagricultural cooperatives, must have a net worth of no more than $5million 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 inconnection with a citation issued by the Secretary of Labor (Secretary).The applications are based upon the assertion that the action of theSecretary in issuing the citation was not substantially justified, andthat the company prevailed in proceedings before the Commission.This matter arose after an inspection of Lowe’s work site and theSecretary concluded that there were two violations of the OccupationalSafety and Health Act of 1970. A citation was then issued. After anotice of contest, complaint and answer were filed, a hearing was held.Subsequently, in a decision by this Administrative Law Judge, Lowe washeld in violation of 29 C.F.R. ? 1926.450(a)(9), item one of thecitation. On review, this violation was set aside by the Commission anditem one was, therefore, vacated. Item two of the citation, an allegedviolation of 29 C.F.R. ? 1926.652(b), was vacated.There is no question that Lowe meets the eligibility requirements for anaward and the Secretary agrees the company was the prevailing party inthe underlying proceeding. Thus, the issue is whether the Secretary’sposition 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 expensesincurred in connection with a proceeding, or in a significant anddiscrete substantive portion of the proceeding, unless the position ofthe Secretary was substantially justified. The burden of proof that anaward should not be made to an eligible prevailing applicant is on theSecretary, who may avoid an award by showing that its position wasreasonable in law and fact.In vacating item one of the citation, the Commission ruled in favor ofLowe 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) whileusing a ladder during a trench operation. The standard which pertains toladders 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 foran employee moving to or from the point of access, shall be installed.Lowe contended, however, that use of the ladder in question was governedby the specific trenching requirement at ? 1926.652(h) which states:When employees are required to be in trenches 4 feet deep or more, anadequate means of exit, such as a ladder or steps, shall be provided andlocated 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 specificationswould not apply to ladders used in trenches as in this case. In light ofthe decision which holds that the Secretary’s own rulemaking decisionwas 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 awardunjust, the applicant is entitled to recover reasonable fees and expenses.The Secretary’s decision to litigate item two of the citation, analleged violation of 29 C.F.R. ? 1926.652(b) was, however, substantiallyjustified. To show the Secretary’s position in a case was substantiallyjustified, the applicable principle is whether it had a reasonablebasis–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 thelegislative history as follows (H.R. Report No. 1418):The burden of showing substantial justification for a case that [theSecretary] lost is not insurmountable:The standard . . . should not be read to raise a presumption that theGovernment position was not substantially justified, simply because itlost the case. Nor, in fact, does the standard require the Government toestablish that its decision to litigate was based on a substantialprobability of prevailing.Section 1926.652(b) requires an employer to slope trenches, five feet ormore in depth, dug in unstable soft material, in accordance with tablesP-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 theinfluence of related conditions, cannot be depended upon to remain inplace without extra support, such as would be furnished by a system ofshoring.\” Although witnesses for both sides indicated the soil inquestion was a mixture of clay, sand and other materials, the Secretaryfailed to establish a violation by a preponderance of evidence.On the basis of the foregoing, it is determined that the Secretary wassubstantially justified in issuing the citation and filing thecomplaint. Only after weighing all the facts adduced at the hearing wasthe citation vacated.Applicant requests an award of fees and expenses for item one in theamount of $13,803.80. The sum represents one-half of the expenses andfees for the number of hours worked from entry into the case untilreceipt 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, CommissionRule 2204.107 limits compensation for attorney’s fees to $75.00 per hour.It is, therefore, concluded that applicant is entitled to compensationfor 104 hours at $75.00 per hour for a total of $7,800.00, plus expensesof $222.80.Accordingly, it is ORDERED:That the applicant be compensated by the Secretary in the total amountof $8,022.80.Dated this 9th day of November, 1989.PAUL L. BRADYJudge————————————————————————FOOTNOTES:[[1\/]] This is consistent with preemption analyses in other contexts,such as in determining whether a state statute is preempted by a federalstatute. The United States Supreme Court stated in _Silkwood v.Ferr-McGee Corp.,_ 464 U.S. 238, 248, 104 S.Ct. 615, 621 (1984), thatwhere Congress has shown an intent to occupy a given field, any statelaw in that field is preempted, and where a state regulation has notentirely been displaced by Congress, the state law is preempted to theextent that it conflicts with federal law or presents an obstacle tofulfilling Congressional intent. That test has been applied in severalcases involving perceived conflicts between state or local law and theOccupational Safety and Health Act: _Manufacturers Association ofTri-County v. Knepper,_ 801 F.2d 130, 135 (3d Cir. 1986), _cert.__denied, _108 S.Ct. 60 (1987) (Pennsylvania Right to Know Act); _NewJersey 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 safetystatute); _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 andregulations). _See also Illinois v. Chicago Magnet Wire Corp.,_ 126I11.2d 356, 534 N.E.2d 962 (1989)(no intent shown by Congress forfederal OSHA to preempt enforcement of state criminal laws).[[2\/]] The Sixth Circuit reversed the Commission’s ruling with respectto a different allegation involving unguarded press brakes. The allegedpunch press violation discussed above was not even before the court onreview.[[3\/]] A \”trench\” is a narrow excavation having a depth greater than thewidth (at the bottom), and a width not greater than 15 feet. See 29C.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’sunsubstantiated claims about the configuration of the trench, e.g., theangle of sloping above the five-foot level, then we would have toconclude that it would have been senseless to require a ladder extendingthree feet above ground level. If Lowe’s assertions are correct, thenthe section of the ladder three feet above ground level would haveextended into mid-air in such a way that employees could not possiblyhave climbed on or off the ladder at that point.[[5\/]] Section 1926.651(y), a specific excavation standard, providesthat \”(a)ll ladders used on excavation operations shall be in accordancewith the requirements of Subpart L of this part.\” Section 1926.450 islocated in Subpart L.[[*\/]] This section, in pertinent part, states:Sides of trenches in hard or compact soil, including embankments, shallbe shored or otherwise supported when the trench is more than 5 feet indepth and 8 feet or more in length. In lieu of shoring, the sides of thetrench above the 5-foot level may be sloped to preclude collapse, butshall not be steeper than a 1 foot rise to each ?-foot horizontal . . . .”