¶57 (concurring in part and dissenting in part) — Many years after dissemination of the Department of Labor and Industries’ (L&I or Department) *897original written interpretation of its rule on wages, and instead of promulgating a new rule, the Department altered its interpretation. It then enforced this new interpretation against five small businesses (Suppliers) that had acted to their detriment by paying wages in reliance upon L&I’s original interpretation. The result, a retroactive increase in wages already paid by the Suppliers after completion of contracts, is blatantly unfair. Thus, I agree with the majority that L&I is estopped from enforcing its new interpretation of WAC 296-127-018 against the Suppliers. However, I disagree with the majority’s decision to defer to the Department and prospectively uphold its new interpretation of WAC 296-127-018. I would affirm the Court of Appeals’ decision that dump truck delivery of fill materials, even directly onto a project site, does not constitute “participation in incorporation of materials” for purposes of determining prevailing wages.11 If the Department wants to change the law, it should ask the legislature or properly consider a new rule.
J.M. Johnson, J.*897¶58 Perhaps more importantly, I disagree with the majority’s decision not to award attorney fees to the Suppliers. The equal access to justice act (EAJA) was adopted to protect small businesses when they defend against unreasonable agency actions. Laws of 1995, ch. 403, § 901. Because the Department’s actions in the present case were not substantially justified, I would hold that the Suppliers are entitled to attorney fees.
A. The Department is estopped from enforcing its new interpretation of WAC 296-127-018 against the Suppliers
¶59 The majority correctly concludes that the Suppliers established the five elements for a successful estoppel claim against the government by clear, cogent, and convincing *898evidence. Majority at 886-87; see also Kramarevcky v. Dep’t of Soc. & Health Servs., 122 Wn.2d 738, 743-44, 863 P.2d 535 (1993) (giving elements and standard of proof for estoppel claim against the government).
¶60 First, the Department’s 1992 memorandum, interpreting WAC 296-127-018 consistently with the Suppliers’ current understanding, constitutes a statement by the party to be estopped, which is inconsistent with its later claims. As noted by the majority, “the Department sent the policy memorandum to bidders on the Third Runway Project, a group that included Suppliers, expressly holding out the memorandum as its position on whether the method of delivery employed in this case would entitle the end-dump truck drivers to prevailing wages.” Majority at 888.
¶61 Second, the Suppliers acted in reliance upon L&I’s statement in calculating and submitting their bids to work on the Third Runway Project, assuming a lower wage rate was applicable. Majority at 888.
¶62 Third, the Suppliers would be injured if the Department were allowed to repudiate its prior statement. Specifically, the Suppliers would be liable for approximately $500,000 in wages, to be paid seven years after the job’s completion. Majority at 889.
¶63 Additionally, a favorable ruling on the Suppliers’ estoppel claim is necessary to prevent a manifest injustice. As the majority explains, “[i]t is self-evidently unfair to permit the Department to adopt and publicly distribute an interpretive policy memorandum and later deny the memorandum’s plain reading after contractors have relied upon it to their detriment.” Majority at 889.
¶64 Finally, to find for the Suppliers will not impair governmental functions since the “Suppliers simply seek to hold the Department to its previously expressed policy as plainly read.” Majority at 891. In sum, the Suppliers have successfully established the five elements of their estoppel claim. Thus, as the majority correctly holds, L&I may not enforce its new interpretation of WAC 296-127-018 in the present case.
*899B. The Court of Appeals was correct to reject the Department’s new, overbroad interpretation of WAC 296-127--018 and this court should affirm its decision
¶65 The plain language of WAC 296-127-018 provides that two conditions must be met before prevailing wages12 will be required for drivers involved in the delivery of gravel, concrete, asphalt, or similar materials. First, the drivers must “deliver . . . materials to a public works project site.” WAC 296-127-018(2)(a). Second, the drivers must “perform any spreading, leveling, rolling, or otherwise participate in any incorporation of the materials into the project.” Id. Applying an accepted canon of statutory construction — ejusdem generis13 — the Court of Appeals interpreted the latter requirement to mean that drivers “must otherwise participate in incorporation of fill material at the site in a manner similar to spreading, leveling, or rolling” to be deemed participants in the incorporation process. Silverstreak, Inc. v. Dep’t of Labor & Indus., 125 Wn. App. 202, 211, 104 P.3d 699 (2005) (emphasis added). Because there was no evidence that the drivers had engaged in any activity similar to spreading, leveling, or rolling, the Court of Appeals reversed the Department’s determination that the drivers had participated in the incorporation process. Id. at 216.1 would affirm the Court of Appeals’ decision on this point.
166 The majority rejects the Court of Appeals’ determination for a number of reasons, all of which are erroneous. First, the majority suggests that the Court of Appeals has applied the rule of ejusdem generis in a manner that contradicts the legislature’s intent in enacting the prevailing wage act (the Act) (chapter 39.12 RCW). Majority at 883. The purpose of the Act is twofold: (1) to protect *900employees working upon public works from substandard wages and (2) to preserve local wages. Superior Asphalt & Concrete Co. v. Dep’t of Labor & Indus., 84 Wn. App. 401, 406, 929 P.2d 1120 (1996) (Superior I) (citing Everett Concrete Products, Inc. v. Dep’t of Labor & Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988)), review denied, 132 Wn.2d 1003 (1997). Because the drivers here were merely delivering materials, they were not working upon a public works project within the meaning of the Act. See Superior Asphalt & Concrete Co. v. Dep’t of Labor & Indus., 112 Wn. App. 291, 299-300, 49 P.3d 135 (2002) (Superior II) (indicating mere delivery does not require prevailing wages), review denied, 149 Wn.2d 1003 (2003). Thus, denying these drivers prevailing (Seattle) wages14 does not implicate the Act’s purpose to protect employees working upon such projects. Additionally, under the Court of Appeals’ interpretation, the Act’s protective mechanisms will continue to function as to those drivers actually working upon public works projects. Thus, the court’s reading of WAC 296-127-018 does not undermine the preservation of local wages. Therefore, the Court of Appeals’ interpretation of WAC 296-127-018, utilizing the rule of ejusdem generis, does not conflict with the legislature’s intent.
¶67 The majority also errs in relying upon the term “otherwise” as a basis for rejecting the Court of Appeals’ decision. According to the majority, “the words hr otherwise participated’ expand the coverage of the prevailing wage act to workers who participate in incorporating materials into the project in any way besides the three enumerated.” Majority at 884. The majority would emphasize “otherwise” to the extent of ignoring the limiting terms “spreading, leveling, or rolling,” thus, contradicting its own admonition that “a reviewing court has a duty to give meaning to every word in a regulation.” Majority at 884. Like the Court of Appeals, I would decline to “rewrite the statute by ignoring the words of limitation” that are plainly present. Silverstreak, 125 Wn. App. at 217-18.
*901f 68 Finally, the majority faults the Court of Appeals for failing “to accord the proper weight to the Department’s interpretation of its own properly promulgated regulation.” Majority at 884. However, it is actually the majority that has erred by giving too much deference to L&I or more precisely giving deference to the Department’s belated reinterpretation of its policy.
¶69 In its final decision, the Department broadly interpreted the phrase “or otherwise participate in any incorporation of the materials” to encompass any activities by a driver who “contribute [ ] to the efficiency and timely completion” of an operation. Administrative R. (AR) at 3346-47 (relying on Superior II, 112 Wn. App. 291). L&I also interpreted the phrase to encompass all driver activities that are “ ‘directly related to the prosecution of the work’ ” and “ ‘necessary for the completion of that work.’ ” AR at 3347 (quoting Heller v. McClure & Sons, Inc., 92 Wn. App. 333, 337, 963 P.2d 923 (1998)).
¶70 As explained in detail by the Court of Appeals, the Department’s reliance on both Superior II and Heller for its new, substantially broader interpretation of WAC 296-127-018 was misplaced. See Silverstreak, 125 Wn. App. at 216-17. Moreover, the Department’s new interpretation completely disregards the plain language of WAC 296-127-018. See id. at 213, 218. Thus, L&I’s decision was plainly erroneous and the Court of Appeals did not err in rejecting it.
¶71 In sum, the majority’s rationale for rejecting the Court of Appeals’ interpretation of WAC 296-127-018 is unconvincing. Accordingly, I would affirm the Court of Appeals’ interpretation and refuse to uphold the Department’s new, overbroad reading of WAC 296-127-018. I would also affirm the Court of Appeals’ conclusion that there is insufficient evidence that the end-dump truck drivers here participated in incorporation of fill material. See Silverstreak, 125 Wn. App. at 214.
*902C. The Suppliers should be awarded attorney fees
¶72 In enacting EAJA, the legislature explicitly stated its desire to provide remedy to small businesses, like the Suppliers, who must defend against unreasonable agency action. Laws of 1995, ch. 403, § 901. Under EAJA, a qualified party who prevails in an administrative action is entitled to attorney fees unless the agency’s action is found to be “substantially justified” or it is determined that “circumstances make an award unjust.” RCW 4.84.350(1). An agency’s position may be deemed “substantially justified” only if it has “a reasonable basis in law and fact.” Constr. Indus. Training Council v. Wash. State Apprenticeship & Training Council, 96 Wn. App. 59, 68, 977 P.2d 655 (1999). It is undisputed that the Suppliers are qualified, prevailing parties under RCW 4.84.350. Majority at 891.
¶73 Like the Court of Appeals, the majority declines to award the Suppliers fees because “the Department’s reliance on Superior II was ‘substantially justified.’ ” Majority at 892. I disagree with the majority’s ultimate conclusion not to award fees, as well as its rationale.
f 74 Contrary to the assertions of the majority and Court of Appeals, the Department was not “substantially justified” in its pursuit of this case. The Department has a duty to promptly and thoroughly investigate both the law and the facts surrounding a complaint before pursuing an alleged violation of the Act. See RCW 39.12.065(1). Here, the Department waited until long after the project was complete to issue a notice of violation that, ultimately, had insufficient support in the record. See Silverstreak, 125 Wn. App. at 214 (concluding that record provides no evidence of “additional task beyond mere delivery of the fill”). In prosecuting its claim against the Suppliers, the Department applied an erroneous interpretation of WAC 296-127-018, going far beyond the plain language of that regulation. The Department also misconstrued applicable legal precedent and contradicted its own prior policy statement. Under these circumstances, it cannot be said that the Department’s position had “a reasonable basis in law [or] *903fact.” Constr. Indus. Training Council, 96 Wn. App. at 68. Accordingly, and in conformance with the language and underlying purpose of EAJA to reimburse those forced to litigate against a powerful government, the Suppliers should be awarded attorney fees under RCW 4.84.350. Because the majority holds otherwise, I concur only in its disposition of this case.
Sanders, J., concurs with J.M. Johnson, J.
Under ROW 39.12.010(1), the “prevailing rate of wage” is defined as “the rate of hourly wage, usual benefits, and overtime paid in the locality ... to the majority of workers, laborers, or mechanics, in the same trade or occupation.” The “locality” is “the largest city in the county wherein the physical work is being performed.” ROW 39.12.010(2).
See supra note 11.
“The rule of ejusdem generis requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest similar items to those designated by the specific terms.” Majority at 882 (citing Davis v. Dep’t of Licensing, 137 Wn.2d 957, 970, 977 P.2d 554 (1999); Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244 (1972)).
See supra note 11.