Valley Construction Company

Plain-English summary

Valley Construction Company sought attorney, consultant, and other expenses under the Equal Access to Justice Act after settling OSHA citations arising from an employee's fatal electrocution. The settlement withdrew three items, reclassified two, and reduced two penalties. The judge found Valley to be the prevailing party only on the withdrawn items, not on modest reductions that had largely been offered before litigation. He held that the Secretary was substantially justified in alleging inadequate electrical-safety training and protection, including the initial willful classification, because the evidence supported those legal theories. The Secretary was not substantially justified on the material-safety-data-sheet item because Valley was cited under the wrong requirement and the evidence did not show required information was unavailable. Limiting the award to reasonable attorney time for that single issue and disallowing unsupported consultant costs, the judge awarded $750 instead of the requested $17,750.50.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.59(e)(1), 1926.59(g)(8), 1926.59(h)(2), 1926.152(a)(1), 1926.556(b)(2)(v), 1926.21(b)(2), and 1926.416(a)(1).
• Outcome: Procedural. The EAJA application was granted only in part, with a $750 fee award.
• Key point: Prevailing in a settlement does not automatically justify fees; the employer must identify issues on which the Secretary lacked a reasonable basis in law and fact.

Full text (OSHRC public release)

                                     United States of America
           OCCUPATIONAL SAFETY AND HEALTH IZEVIEW COMMISSION
                               1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3419


                                       .                                      Phone: (202) 606-5400
                                       .
                                                                                Fax: (202) 606-5050

Secretary of Labor,
.
Complainant, l

                                       .
                                       .
                                       .
          v.                           .                         Docket No. 92-3644
                                       ..                              (EAJA)

VALLEY CONSTRUCTION co ‘9 ..
Respondent. ..
.
.

                             NOTICE OF DOCKETING

The Administrative Law Judge’s Report in the above referenced case was docketed with
the Commission on June 20, 1995. The decision of the Judge will become a final order
of the Commission on July 20, 1995 unless a Commission member directs review of the
decision on or before that date. ANY PARTY DESIRING REVIEW OF THE
JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR
DISCRETIONARY REVIEW. Any such petition should be received by the Executive
Secretary on or before July 10, 1995 in order to permit sufficient time for its review.
See Commission Rule 91, 29 C.F.R. 8 2200.91.

All further pleadings or communications regarding this case shall be addressed to:

                        Executive Secretary
                        Occupational Safety and Health
                         Review Commission
                        1120 20th St. N.W., Suite 980
                        Washington, D. C. 20036-3419

Petitioning parties shall also mail a copy to:

                        Daniel J. Mick, Esq.
                        Counsel for Regional Trial Litigation
                        Office of the Solicitor, U.S. DOL
                        Room S4004
                        200 Constitution Avenue, N.W.
                        Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional
Trial Litigation will represent the Department of L&X angt party having questions
about review rights may contact &e d”ommission’s Executive Saretary or call (202) 634.
7950.

                                                 FOR THE COMMISSION

June 20, 1995
Date Ray H. Darlia.
Executive Secretary
Docket No. 92-3644

NOTICE IS GIVEN TO THE FOLLOWIKG:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N. W.
Washington, D. C. 202 10

Benjamin T. Chinni, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 88 1
1240 East Ninth Street
Cleveland, OH 44199

John T. Billick, Esq.
Buckingham, Doolittle & Burroughs .
1375 E. Ninth Street
Cleveland, OH 44114

Ken S. Welsch
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119

PHONE.
COM (404) 347-4197 FAX:
FTs (404) 347-4197 COM (404) 347-0113
F-73 (404) 347-0113

                                                       .

SECRETARY OF LABOR, ..

                  Complainant,                         .
                                                       0



                                                       .
                                                       .       OSHRC lkxket        No. 92-3644
                                                       .

VALLEY CONSTRUCTION COMPANY, I PJ4
Respondent.

Valley Construction Company (Valley) seeks attorney and agent fees and other expenses
in accordance with the Equal Access to Justice Act, 5 U.S.C. 6 504, 29 C.F.R. 5 2204.101,
et seq., for costs incurred in its defense against citations and proposed penalties issued by the
Secretary on October 22, 1992.

                                          Backmound

 Valley, an electrical contractor, was engaged in electrical work at 150 Claremont, N.W.,

Canton, Ohio, in July 1992, when an employee was fatally electrocuted. After an OSHA
inspection on October 22, 1992, Valley received a serious citation alleging violations of 29
C.F.R. 85 1926.59(e)(l), 1926.59(g)(8), 1926.59(h)(2), 1926.152(a)( 1), and 1926.556(b)(2)(v)
with total proposed penalties of $4,000; and a willful citation alleging violations of 29 C.F.R.
$5 1926.21(b)(2) . and 1926.416(a)(l) with a proposed grouped penalty of $17,500. On
November 16, 1992, Valley filed its notice of contest.
The hearing scheduled for May 26, 1993, was postponed and on July 12, 1993, the
parties filed a jok? stipulation and settlement agreement. By settlement agreement, the
Secretary amended the serious violations of @ 1926.59(e)(l) and 1926.59(h)(2) to “other
,
than serious” with no penalty proposed; reduced the $750 penalty to $375 for the serious
violation of 8 1926.152(a)( 1); reduced the $1,000 penalty to $500 for the serious violation
of 0 1926.556(b)(2)( v )*, vacated the serious violation of 6 1926.59(e)(l); and vacated the
willful citation alleging violations of 60 1926.21(b)(2) and 1926.416(a)(l). Judge Edwin G.
Salyers, since retired, approved the settlement agreement which became a final order of the
Commission on September 7, 1993.
On October 5,1993, Valley filed an Application for Award of Fees and Other Expenses
in the amount of $17,750.50. The Secretary filed objections.

                              Equal Access to Justice Act CEAJA\

The EAJA applies to proceedings              before   the Commission    in section 10(c) of the

Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. 6 651, et seq. It ensures that
an eligible applicant is not deterred from seeking review of, or defending against, unjustified
Government actions. Ewing v. Rodgers, 826 F.2d 967 (10th Cir. 1987). An award is made
to an eligible applicant who is the prevailing party, and only if the Government’s action is
found to be without substantial justification and there are no special circumstances which
make the award unjust. Asbestos Abatement Consultation & Engineering 15 BNA OSHC
1252, 1991 CCH OSHD lI 28,628 (No 87-1522,199l). The EAJA does not routinely award
attorneys’ fees and expenses to a prevailing party. While the applicant has the burden of
proving eligiiility, the Government has the burden of demonstrating that its action was
substantially justified. Dole v. Phoenix Roofing hc. 922 F.2d 1202,1209 (5th Cir. Ml), 29
C.F.R. 6 2204.106(a). The burden of showing substantial justification is not insurmountable.
“The standard. l . should not be read to raise a presumption that the Government’s position
was not substantially justified, simply because it lost the case. Nor, in fact does the standard
require the Government to establish that its decision to litigate was based on a substantial
probability to prevailing.” H.R. Rep. 1418,96 26. Sess. at 11, 18, 1980 U.S. Code Cong. &
Admin. News, 4989 & 4997. See also S & H %gem & Erecton, Inc. v. OSHRC, 672 F.2d
426, 430 (5th Cir. 1982).
Vallev’s Application

Despite settling the underlying case, Valley is seeking fees and expenses incurred by

attorneys and agents used in defending against the alleged violations and proposed penalties.
Valley argues that the evidence shows that the OSHA inspection was wholly inadequate and
,
that none of the violations were justified.
Valley’s application seeks fees and expenses incurred for the period of September 18,
1992, through May 26, 1993, in the total amount of $17,750.50. Attorneys’ fees are claimed
to be $6,608.50. The balance is for consulting setices paid to Hayes Environmental
Services, Inc. Valley’s application is supported by an itemized statement showing the
number of hours spent, a description of the specific senkes performed, the hourly rate, and
expenses.

                                  Vallev Qualifies as Elimile

The party seeking an award for fees and expenses must submit an application within

thirty days of final disposition in an adversary adjudication. 5 U.S.C. 6 504(a)(2). The record
shows that Valley’s WA application was timely filed within thirty days after the settlement
agreement became a final order of the Commission.
Additionally, the applicant in an EAJA case must meet certain eligibility requirements
before it can be awarded attorneys’ fees and expenses. Commission Rule 2204.105(b)(4)
requires, among other criteria, that an eligible applicant be “a. . . corporation. . . that has
a net worth of not more than seven million dollars and employs not more than five hundred
employees . . .”
l Eligibility is determined as of the date of the notice of contest.
Commission Rule 2204.105(c).
In its application, Valley’s president, by affidavit, states that the company was a
corporation with a net worth less than 7 million dollars and employed less than 500
employees at the time of its notice of contest. In support, Valley attaches a copy of an
accounting report reflecting assets in excess of 2 million dollars “and 43 employees in 1992
and 1993. Despite questioning Valley’s eligibility, the Secretary has not submitted any

                                                   3

evidence to the contrary. Therefore, Valley has satisfied the eligibility requirements of the
EAJA

                   Vallev is the Prevailing Partv As To Portion of Case

    Once it is shown that the applicant meets the eligiibiIity requirements     of the EAJA,

it must next be determined whether the applicant for the EAJA is the prevailing party. As
stated by the Review Commission in KD.K Upset Forging, Inc., 12 BNA OSHC 1856,1857,
1986 CCH OSHD TI27,612 (No 814932, 1986):
Although the term is not defined in the EAJA, an applicant is considered to
be the ‘prevailing party’ for the purpose of attorneys’ fees statutes if it has
succeeded on any of the significant issues involved in the litigation, and if, as
a result of that success, the applicant has achieved some of the benefit it
sought in the litigation.

    A party need not have prevailed on all issues.       It is sufficient that “. . . the party

seeking fees need not have prevailed as to the central issue in the case but only as to a
discrete substantive portion of the proceeding.” HIP. Fowler Contracting Corp., 11 BNA
OSHC 1841, 1845, 1983-84 CCH OSHD lI 26,830, p. 34,358 (No. 80-3699, 1984). Also, a
party may be deemed prevailing if it obtains a favorable settlement of the case. H.R. Rep.
No. 1418, 96th Cong., 2d. Sess. 11 (1980), reprinted in 1980 U.S. Code Gong. & Admin.
News at 4990.
Thus, the issue of whether Valley was the prevailing party involves reviewing each of the
violations cited by the Secretary and determining by the settlement agreement whether
ValIey succeeded on any significant issue raised by the alleged violation and whether Valley
achieved some of the benefit it sought in initiating litigation. See H R Fowkr Contracting
Cop., supra, at p. 34,358. Thus, each aspect of the cited violation in which Valley achieved

some benefit must be reviewed.
There is no dispute that ValIey was the prevailing party within the meaning of the
EAJA as to the Secretary’s withdrawal of the alleged serious violation of 0 1926.59(g)(8) and
the willful violations of 03 1926.21(b)(2) and 1926.416(a)(l). The Secretary concedes that
Valley was the prevailing party as to these violations (Secretary’s Answer, pg. 4).

                                             4
    The more difficult question is whether Valley should also be considered the prevailing

party as to those violations in which the Secretary reduced the penalty by fifty percent or
reclassified to “other than serious” violations. “Whether reduction in penalties and severity
of violations constitutes a discrete substantive portion of a case must be determined on the
basis of all the relevant facts and circumstances.” HIP. Fowler Contracting
i’ Cop., 11 BNA

OSHC at 1846. Although arguably deriving some benefit from the reduction in penalty and
reclassification, the record in this case shows that these modifications were not a discrete
substantive portion of the case or what Valley solzghf fko-r~~,
Ilirigation.
The fifty percent penalty reduction involving serious violations of 55 1926.152(a)(l)
and 1926556(b)(2)( v ) saved Valley $875. The nature of the violations, the classification of
the violations as serious, and Valley’s requirement to abate the violations were not affected
by the settlement. Valley’s monetary savings of $875 in penalties is small in comparison to
the $18,250 saved when the Secretary vacated the two willfbl violations and the one serious
violation. Also, the fifty percent penalty reduction was not the reason Valley contested the
violations. At the informal conference with the OSHA area director before initjatig action,
Valley sought to reclassify the violation of 0 1926.152(a)(l) to “other than serious” and the
withdrawal of the 6 1926.556(b)(2)(v) violation (Valley’s Application, Exh. B). Thus, by only
achieving a small penalty reduction, Valley did not obtain what it had sought by filing its
notice of contest. In fact, the area director at the informal conference offered to settle the
matter with the fifty percent penalty reduction for both violations (Secretary’s Answer, Exh.
C-2). Therefore, for the purposes of its EAJA application, Valley is not considered the
prevailing party as to the penalty reductions for violations of 60 1926.152(a)(l) and
1926.556@(2)(v).
Similarly, the reclassification of the violations of 55 1926.59(e)(l) and 1926.59(h)(2)
to “other than serious” does not justify a finding that Valley was the prevailing party. The
nature of the violations, the requirement to abate the violations, and the ability of OSHA
to enforce future violations, if found, were by the reclassification not affected. Valley did
save $1,500 by the elimination of the penalties. However, the reclassification of the
0 1926.59(e)( 1) violation to “other than serious” was offered by the area director at the
informal conference in November 1992. He also offered to reduce the penalty for violation
of 6 1926.59(h)(2) to $500 (Secretary’s Answer, Exh. C-2; Valley’s Application, Exh. B).
Thus, the penalty reductions or the reclassifications in the Secretary’s settlement of
serious violations of 55 192659(e)(l), 1926.59(h)(2), 1926.152(a)(l), and 1926.556@(2)(v)
do not establish Valley as the “prevailing party” within the meaning of the EAJA However,
by obtaining the Secretary’s withdrawal of the serious violation of 0 1926.59(g)(8) and the
willful violations of 66 1926.21(b)(2) and 1926.416(a)(l), Valley did achieve its primary
reason for initiating litigation and was the prevailing party.

                                      Substantial Justification

Having established      that Valley met the EAJA eligiiility           criteria and that it was the

prevailing party as to the Secretary’s withdrawal of the violations of 55 192659(g)(8),
1926.21@)2) and 1926.416(a)(l), Valley is entitled to an award of fees and expenses under
the EAJA unless the Secretary establishes that his position was substantially justified in
pursuing litigation as to those violations, or the record shows special circumstances which
would make an award unjust. 29 C.F.R. 0 2204.101. “The test of whether the Secretary’s
action is substantially justified is essentially one of reasonableness in law and fact.”
Mautz & Oren, Inc., 16 BNA OSHC 1006,1991-1993 CCH OSHD 129,986, p. 41,066 (No.
89-1366, 1993).
The reasonableness test breaks down into three parts: the Government must show “that
there is a reasonable basis . . for the facts alleged . . . that there exists a reasonable basis
l

in law for the theory it propounds and that the facts alleged will reasonably support the legal
theory advanced.” Gaston v. Bowen, 854 F2d. 379,380 (10th Cir. 1988).
The fact that the Secretary withdrew the violations does not raise a presumption that the
Secretary’s position was without substantial justification. Hocking Vidky Steel Erectors;Inc.,
11 BNA OSHC 1492, 1983 CCH OSHD 126,549 (No. 80-1463, 1983). Valley argues, in
part, that there is such a presumption and cites in support Dun-ParEngineeringCo., 11 BNA
OSHC 1808,1983&I CCH OSHD 126,797 (No. 820606,1984), and KDX UpsetForge,Inc.,
supra. However, a closer reading of these cases indicates that such a presumption may arise

                                                  6

as to the issue of “prevailing party” but should not apply to the issue of “substantially
justified” unless the Secretary is unable to prove an essential element of the violation.
Also, substantial justification does not require the Secretary to establish that his decision
to litigate was based on a substantial probability of prevailing but that his decision to litigate
has a reasonable basis in law and fact. See H.R. Rep. No, 961418, 96th Cong., 2d Sess. at
13-14, reprinted in [1980] U.S. Code Cong. & Admin. News, 4992-93. A legal positionis not
substantially justified when it is based on supposition or conjecture. It must be supported
by evidence. Evidence is substantial if it is the kind of evidence a reasonable mind might
accept as adequate to support a conclusion. Capital llmneling Inc., 15 BNA OSHC 1304,
1991-93 CCH OSHD lI 29,894 (No. 89-2248, 1991).
To determine whether the Secretary has established that his position was substantially
justified, the court must look to the record. 29 C.F.R. 5 22004.307(a). Since this case was
settled without a hearing, the record in this case consists of the submissions from the parties,
including parts of the OSHA investigation, interview statements, and parts of depositions.
The question for determination at this juncture is whether the Secretary was substantially
justified in citing Valley for the alleged violations of 55 1926.59(g)(8), 1926.21(b)(2), and
1926.416(a)( 1).

                          Serious Violation of 5 1926.59(&(8)

  The Secretary    cited Valley for failing to maintain and make readily accessible to

employees copies of material safety data sheets (MSDSs) of each hazardous chemical used
.
at the workplace. Section 1926.59(g)(8) provides, in part, that:
The employer shall maintain in the workplace copies of the required SlazLfeTidl
safety data sheets for each hazardous chemical, and shall ensure that they are
readily accessible during each work shift to employees when they are in their
work area(s).

5 The Secretary argues that Valley failed to maintain MSDSs at each workplace for
hazardous chemicals, such as gasoline and oil. The Secretary bases the violation on finding
that some employees appeared to have no knowledge of what MSDSs were or where they
were maintained. Therefore, according to the Secretary, the MSDSs were also not “readily
accessible” to employees as required by 6 1926.58(g)(8).
Valley argues that due to the nature of its business, it was not required to have an
MSDS at each workplace since its workplaces were mobile. Another regulation,
5 1926.59(g)(9), provides that “[WJhere employees must travel between workplaces during
the workshift. . ., the [MSDS] may be kept at the primary workplace facility” as long as the
employer can ensure that “employees can immediately obtain the required information in
an emergency.”
Thus, the initial inquiry is whether Valley was correctly cited under 0 1926.59(g)(8)
as opposed to 6 1926.59(g)(9). In this regard, the OSHA inspector stated in his deposition
that it was his understanding at the time of the inspection that Valley’s employees moved
from one work location to another during the work shift (Valley’s Application, Exh. H). The
inspector’s work sheets at page 3 of 7, describes Valley’s “job sites (mobile) . . 0 .” and
noted that Valley kept the MSDS at its office (Secretary’s Answer, Exh. C-18). Therefore,
the evidence at the time of issuing the citation indicated that Valley’s employees traveled
between workplaces and the required MSDSs were maintained at its main office as required
by 6 1926.59(g)(9).
There is no evidence presented by the Secretary that employees could not obtain the
information from the MSDS in an emergency as required by 3 1926.59(g)(9). The
Secretary’s argument that some employees did not know what an MSDS was or where it was
located demonstrates that Valley’s hazardous communication training program, as required
by 5 1926.59(h), may have been deficient. Valley was cited for violation of 9 1926.59(h)(2),
which the Secretary amended to an “other than serious” violation in the settlement
agreement. Such training deficiencies do not establish that MSDSs were not properly
maintained and the information obtainable as required by 9 1926.59(g)(9). Based on this
record, the Secretary cited the incorrect standard and was not substantially justified in
pursuing a violation of 9 1926.59(g)(8).
Willful Violation of S 1926.21(b)(2\

As part of the willful citation, the Secretary alleged that Valley failed to instruct

employees in the recognition and avoidance of unsafe conditions and regulations applicable
to their work environment in violation of 29 C.F.R. 5 1926.21(b)(2). Specifically, the citation
alleges that “adequate training was not provided to employees working near energized
electrical lines in a damp or wet location.”
An employer complies with 8 1926.21(b)(2) when it instructs empI-s about hz~~~ds
they may encounter on the job and the regulations applicable to those hazards. Concrete
Constnmion Co., 15 BNA OSHC 1614,1991-93 CCH OSHD ll29,681 (No. 8902019,1992).
Because of the potentially subjective nature of the standard, the Review Commission has
incorporated a reasonableness requirement. “That is, to establish noncompliance, the
Secretary must establish that the cited employer failed to provide the instructions that a
reasonably prudent employer would have given in the same circumstances.” El Paso Cizme
and RiggingCo., Inc., 16 BNA OSHC 1419, 1424, MU-93 CCH OSHD 1 30,231 p. 41,620
(No. 90-1160, 1993).
Based on the record in this case, Valley considered working on or near energized low
voltage lines (120- and 240-voltage) in wet or damp conditions to be an “unsafe condition”
as contemplated by 6 1926.21(b)(2). Valley’s general foreman acknowledged that working
around secondary lines or low voltage lines “is as dangerous as primary, and that they
[employees] should respect it the same. The potential is there - it is hard to compare the
two.” Further, he told the inspector that working near low voltage lines in wet or damp
conditions “is usually discouraged but we (Valley) has to keep PIE public in service”
(Secretary’s Answer, Exh. C-4). Valley’s president acknowledged that working on low
voltage lines in wet or damp conditions “is normal procedure - everyone considers it
dangerous” (Secretary’s Answer, Exh. C-5). By recognizing it to be an “unsafe condition,”
Valley, under 5 1926.21(b)(2) , was required to instruct its employees in the recognition and
avoidance of the hazards which may be encountered.
However, the record indicates that Valley’s management and employees have
different understandings as to what was required. Valley’s foreman stated that it was up to
the employee whether to wear rubber gloves while working on low voltage lines, but that
leather gloves generally were used. However, in working in the rain, the foreman makes the
call (Secretary’s Answer, Exh. C-6). Valley’s president, on the other hand, stated that no
personal protective equipment was required while working on low voltage lines in damp or
wet locations. It was at the discretion of the employee (Secretary’s Answer, Exh. C-5). An
apprentice lineman stated that he had not received any instruction Tom Valley about
working on secondary voltage lines in wet weather. He uses rubber gloves while working on
primary lines but leather gloves when working on secondary lines (Secretary’s Answer, Ekh.
C-7). A journeyman lineman stated that he only used leather gloves when working on low
voltage lines (Secretary’s Answer, Exh. C-8).
Also, in informally surveying six other electric companies in the Ohio area, the OSHA
inspector found that two companies required employees to wear rubber gloves while working
on any voltage lines regardless of the conditions; another company required its employees
to wear rubber gloves while working on any voltage lines if the conditions were wet or damp;
a fourth company stated that it did not work in the rain; the fifth company stated that if it
worked in the rain, it would require wearing rubber gloves; and the sixth company stated it
depends on the method as to what type of gloves are to be worn in wet or damp conditions
(Secretary’s Answer, Exh. C-9). Based on this survey most, if not all, other electric
companies require employees to wear rubber gloves when working on low voltage lines in
damp or wet conditions.
Valley argues that it satisfied the training requirements of 0 1926.21(b)(2) in that the
union provides the apprenticeship training through the American Line Builders
Apprenticeship Training (ALBAT) program and that once employed, Valley requires
employees to attend safety meetings once or twice a week First, “. . . the Commission has
made clear that while the standard does not limit the employer in the method by which it
may impart the necessary training, an employer that places too much trust in the quality of
experience and training an employee has already acquired elsewhere runs the risk of
violating the standard.” Ford Development Corp., 15 BNA OSHC 2064,1991-93 CCH OSHD

                                                10

II 29,000, p. 40,802 (No. 90-1505, 1992). Secondly, a representative of ALBAT told the
OSHA inspector that “rubber gloves should be used (working around low voltage lines in
wet or damp conditions) - this is a common sence [sic] thing. [No real establish cut and dry
rules in this area” (Secretary’s Answer, Exh. C-11). Thirdly, although Valley submitted
records of its safety meetings (Secretary’s Answer, Exh. C-14), there is no evidence that the
deceased had attended any safety meetings. Also, under subjects discussed at the safety
meetings, there is no showing that there was any discussion involving precautions to be taken
by employees working on low voltage lines in wet or damp locations. Valley cites for the
proposition that an employer satisfies the requirements of # 1926.21(b)(2) by having regular
employees’ safety meetings; Archer-W&tern Contractors,Ltd, 15 BNA OSHC 1013,1991-93
CCH OSHD q 29,317 (No. 87-1067, 1991). However, in fact, the Review Commission
found that the minutes of the safety meetings did not establish that employees were
adequately trained in all phases of crane operations. It was the testimony of crane operators
that revealed that the employees were, in fact, adequately trained. Id at 1020.
In this case, there is no evidence that Valley’s employees received training as to what
safety precautions were required while working on low voltage lines in wet or damp
locations. Therefore, the Secretary was substantially justified within the meaning of the
EAJA in citing Valley for violation of $ 1926.21(b)(2).

                          Willful Violation of S 1926.416(a)@

    Valley was cited for willful violation of 0 1926.416(a)(l), which requires an employer

who permits an employee to work in proximity to any part of an electric power circuit to
which he could come in contact, to protect the employee “by deenergizing the circuit and
grounding it or by guarding it effectively by insulation or other meax&@ me citation, as
amended in the Secretary’s complaint, describes valley’s alleged violation as follows:
On or before 7120192, at 150 Claremont Avenue, N.W., Canton, Ohio,
employees working on or near energized electrical lines that were not
effectively guarded were not required to use the proper personal protective
equipment which could prevent serious physical harm or death from
electrocution.

                                              11
  The Secretary argues that a violation           of 0 1926.416(a)(l)   is established     when an

employee is exposed to a shock hazard from contact with an electrical power circuit and no
protective measures are used. The Secretary interprets “other means” to include Dersonal A

protective equipment such as rubber gloves and sleeves. Valley argues, on the other hand,
that the proper interpretation of “other means” does not include the use of personal
protective equipment but rather refers to other means of guarding the electric power circuit
itself.
The Secretary’s interpretation is reasonable in view of the construction of the
standard and its purpose, which is to protect employees who work around any part of an
electric power circuit. The standard ensures that an employee working near an energized
power circuit is protected from coming in contact by some means. It is reasonable for the
Secretary to interpret “other means” to include employee personal protective equipment.
Adequate personal protective equipment could prevent an employee from coming into
contact with the energized power circuit.
The Secretary’s accident investigation found that Valley’s deceased employee was
instructed to secure a street light brace to the pole after a heavy rain. The secondary line
was energized; the line was insulated; the deceased was wearing leather gloves and rubber
shoes; and the conditions were wet and damp (Secretary’s Answer, Exhs. C-6, C-7). At the
time of the accident, the deceased was working within one foot of the energized power line
(Secretary’s Answer, Exhs. C-6, C-17). Valley’s safety rules, in part, require that “no
employee shall be permitted to work in such proximity to any part of an electric power
circuit that he may contact the same in the course of his work unless the employee is
protected against electric shock by de-energizing the circuit and grounding it or by guarding
it by effective insulation” (Secretary’s Answer, Exh. C-12). These safety rules do not address
the use of personal protective equipment such as rubber gloves.
In citing 0 1926.416(a)(l), the Secretary’s position appears to have been that if the
deceased employee had been wearing rubber gloves or the power line had been
de-energized, the accident might not have occurred. The Secretary’s survey of six other
Ohio electric companies found that at least five of the companies required employees to
wear rubber gloves when working on any voltage power lines if the conditions
. were wet or

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damp (Secretary’s Answer, Exh. C-9). The ALBAT representative also seemed to express
the need for wearing rubber gloves (Secretary’s Answer, Exh. C-11). However, Valley did
not require its employees to wear rubber gloves. It was left to the discretion of the
employee. .

    Although these facts do not establish that the Secretary would have necessarily

prevailed in this action, the Secretary has established that his theory has a reasonable basis
in law and that the facts alleged would reasonably support the theory advanced. Thus, the
Secretary has established that his position was substantially justified under the EAJA in
citing Valley for violation of 0 1926.416(a)(l).

                          Willful Classification and Penaltv

    The Secretary cited the violations of 00 1926.21(b)(2) and 1926.416(a)(l)           as willful

violations with a grouped penalty of $17,500. This willful classification and penalty must also
be considered in determinin g whether the Secretary was substantially justified under the
EAJA In this regard, it is noted that the Secretary offered to settle with Valley at the
informal conference in November 1992 for reclassification of the violations to serious and
a grouped penalty of $2,500. In his complaint, the Secretary pleaded the violations, in the
alternative, as serious with a grouped penalty of $2,500. Finally, prior to the OSHA
inspector’s deposition in April 1993, the Secretary notified Valley that the violations were
no longer considered willful but were reclassified as serious violations. Thus, it appears that
the Secretary never steadfastly considered the violations as willful.
Under the Act, a violation is willful if it is committed with intentional disregard oc
or plain indifference to, the Act’s requirements. Mel Jan& Con.s~~~tionCo., 10 BNA OSHC
1052, 1981 CCH OSHD ll25,713 (No. 77-2100, 1981). In showing plain inherence or
intentional disregard, the Secretary points to statements made by Valleys management that
the use of any personal protective equipment was within an employee’s discretion
(Secretary’s Answer, pg. 27). This is despite Valley’s recognition that work around low
voltage lines could be as hazardous as working on primary power lines (Secretary’s Answer,
E&s. C-4, C-S). Also, consideration is given to OSHA’s informal survey of other Ohio

                                               13

electric companies which seems to indicate that rubber gloves are necessary under these
conditions.
Based on this record, the Secretary was substantially justified in initially classifying the
violations of 03 1926.21(b)(2) and 1926.416(a)(l) as willful. Also, the record supports the
reclassification to serious violations in that the hazard of electrocution was present as
evidenced by the fatality; and Valley’s knowledge that such conditions were hazardous. 29
U.S.C. 5 666(k). Finally, the proposed penalty appears appropriate and reasonable
considering the high gravity of the violations and the fact that Valley is a small employer
with no historv of prior violations.
d

                                    No Special Circumstances

    There is no showing of special circumstances that would render an award of attorneys’

fees and expenses unjust. Therefore, Valley is entitled to an award of fees and costs under
the EAJA for the Secretary’s lack of substantial justification in citing 51926.59(g)(8).

                             Vallev’s Application     in Part is Allowed

In determinin g allowable fees and expenses under the EAJA, 29 C.F.R. 8 2204.107

provides that such awards should be based on rates customarily charged by persons engaged
in the business and that the fee should not exceed $75 per hour, unless the Commission
determines that an increase in the cost of living or a special factor justifies a higher fee.
Valley’s application for fees shows that its principal attorney claims $5,394 in fees for
37.40 hours of work at $145 per hour. Also, there is an additional claim of $1,214.50 for
34.70 hours of work done apparently by a paralegal at a rate of $35 per hour. Thus, the
total amount claimed in attorneys’ fees is $6,608.50, for a total of 72.10 hours during the
period November 6, 1992, to May 26, 1993, when the settlement agreement was drafted.
Additionally, Valley also claims expert or consultant fees in the amount of $10,980 charged
by Hayes Environmental Services, Inc. Hayes showed 78.50 hours of work during the period
September 18, 1992, to May 13, 1993, at $150 per hour plus $64 in expenses for postage,
telephone calls and gasoline (Valley’s Application, Exh. I). Thus, Valley’s application seeks
attorney and consultant fees and expenses in the total amount of $17,750.50 (the total fees

                                                 14

and expenses shown in the application when added together only support a request for
$17,652.50).
In reviewing Valley’s application, there is no justification shown for fees in excess of
the $75 per hour rate, nor does the record or complexity of the case support a higher rate.
Therefore, Valley’s application is limited to a rate of $75 per hour.
Further, to the extent practicable, fees and expenses are limited to only the allegation
in which the Secretary is found not substantially justified. In this case, it is the Secretary’s
pursuit of 0 1926.59(g)(8). H owever, Valley’s application is not segregated based on its costs
in defending against this violation. Thus, the precise amount of fees or expenses incurred
in defending against the alleged violation of fi 1926.59(g)(8) is difl%%l&if not impossrble, to
ascertain with any degree of certainity.
In determinin g an appropriate fee, consideration is given to the complexity uf the
violation and the experience of the attorney. In this regard, Valley was cited under the
incorrect standard, and the Secretary lacked evidence that information from the MSDS was
not available in an emergency. Defending against this violation certainly did not require
consultants or experts. Also, Valley’s application fails to describe the purpose or need for
engaging Hayes Environmental Services, Inc. Therefore, any fees and expenses claimed for
Hayes Environmental are not allowed in this case.
Further, as described above, the nature of Valley’s defense was that. it was cited under
the incorrect standard. Due to the nature of its work, Valley was only required to maintain
the MSDS at a primary workplace facility. The Secretary withdrew the alleged violation by
letter dated May 7, 1993 (Secretary’s Answer, Exh. C-46). In calculating appropriate
attorneys’ fees for defending against the violation, it is concluded that Valley is eligible to
receive $750, which represents 10 hours of work at a rate of $75 per hour. This is
11 percent of the total amount of attorneys’ fees claimed. Also, 10 hours represents
approximately one-seventh of the total attorney hours claimed. It is noted that there were
only seven violations cited. Attorney time clearly was spent in preparing the answer and the
settlement agreement, a small portion of which would have involved the alleged violation of
3 192659(g)(8). Also, time was spent in discovery specifically on the alleged violation. This
is reflected in the deposition of the OSHA inspector (Valleys Application, Exh. H, pgs.

                                              15

46-47). Further, in considering an appropriate fee, it is noted that Valley’s attorney is an
experienced OSHA attorney and the issue of applicability of the standard is not viewed as
complex or difkult. Thus, an award of $750 is reasonable and appropriate in this case.

                            FINDINGS OF FACI’ AND
                           AND CONCLUSIONS OF LA\N


The foregoing     decision constitutes    the findings of fact and conclusions       of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

Based upon the foregoing decision, it is
ORDERED: Valley’s application for attorney fees and expenses is granted in the
amount of $750.

                                 Judge

Date: June 8, 1995

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