kingsbury v. dept labor ( 2024 )

Vermont Superior Court
Filed 10/0 23
Washmgton mt
VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit f1
Case No. 22—CV—04141
65 State Street
Montpelier VT 05602
802-828-2091
www.verm0ntjudiciary.org
Kingsbury Companies, LLC V. Commissioner of Labor, State of Vermont
Opinion and Order on Appeal
Following an inspection by Vermont Occupational Safety and Health
Administration (V OSHA) Safety Compliance Officer Stephen Murray of a construction
site, VOSHA issued Appellant Kingsbury Companies LLC a seven-item citation for
Violations of Vermont’s Occupational Safety and Health Act (the Act), 21 V.S.A. §§ 221—
232. Kingsbury contested the citation before the VOSHA Review Board. A hearing
officer heard the case and affirmed all seven violations. The Board then conducted
discretionary review, Code of Vt. R. 24-050-002 § 2200.91, on Kingsbury’s request. It
vacated Violation 6 and otherwise affirmed the hearing officer.1 Kingsbury subsequently
sought review here. 21 V.S.A. § 227 (a). It argues that the citations are void and should
be vacated because the inspection violated the law. Alternatively, it argues that none of
the remaining six violations is supported by the record or warranted by the law.
This case arises out of a complaint filed with the Department of Labor by a person
identifying himself only as Kingsbury job site employee. He complained about unsafe
conditions at the site related to a crane that he operated, ladders, stairs, and confined
1
Violation 6 is not at issue in this case.
Order Page 1 of 18
22—CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
spaces.2 In response, without a court order specifically authorizing it, Mr. Murray
arrived at the site to inspect. The Kingbury employee in charge assented to the
inspection and accompanied Mr. Murray on it.3 The inspection led to the citations at
issue. The project involved the construction of a manure digesting facility in Salisbury
that would supply power to Middlebury College. The facility included, among other
things, three large concrete tanks referred to as the north and south digesters and the
hydrolyzer.
The Court makes the following determinations.
I. Standard of Review
The Vermont Supreme Court has held that:
The standard of appellate review in VOSHA cases is expressly set out
in the Act itself:
The findings of the review board with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole,
shall be conclusive. (21 V.S.A. § 227(a)).
The somewhat imprecise “substantial evidence” standard has received
elucidation in several United States Supreme Court cases. “‘(S)ubstantial
evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. . . . (It)
must do more than create a suspicion of the existence of the fact to be
established. . . . it must be enough to justify, if the trial were to a jury, a
refusal to direct a verdict when the conclusion sought to be drawn from it is
2 Kingsbury describes the employee as a disgruntled ex-employee whose complaint, after
his employment had terminated, was calculated in bad faith to harass Kingsbury. The
State contests that characterization of the employee’s status and motivations. The Court
declines to enter the fray because the complaining employee’s status as currently or
formerly employed and his subjective motivations are not relevant to this decision.
Moreover, the employee’s apparent principal complaint about the crane, which evolved
into Violation 6, was vacated by the Board.
3 Kingsbury argues that the inspection was nonconsensual. This issue is addressed
below.
Order Page 2 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
one of fact for the jury.’” It differs little, if at all, from the “clearly
erroneous” test of V.R.C.P. 52(a).
Green Mountain Power Corp. v. Commissioner of Labor and Industry, 136 Vt. 15, 21
(1978). “To establish a violation, the Department of Labor must show that the employer
‘had knowledge or constructive knowledge of the condition’ violating the law.”
Commissioner of Labor v. Eustis Cable Enterprises, LTD, 2019 VT 2, ¶ 9, 209 Vt. 400,
404. Speculation is insufficient. See id. ¶ 10, 209 Vt. at 404.
II. Preliminary Issues
As an initial matter, Kingsbury argues that all violations should be set aside
because VOSHA failed to follow statutory requirements and its own procedures upon
receiving the complaint and conducting the inspection. It maintains that those
requirements and procedures are intended to protect employers, and VOSHA’s failure to
follow them prejudiced it by leading to an inspection that never should have occurred and
that sprawled overzealously far beyond the scope of the complaint that prompted it,
leading to violations that never should have been found and that did not in fact exist. It
contends: “Among other things, this appeal presents the threshold question of whether
VOSHA has an obligation to perform due diligence prior to launching an investigation
based on a vague online tip. Here, an angry former employee used VOSHA to get
revenge on Kingsbury by making a limited complaint concerning his job as a crane
operator. VOSHA took this tip and ran with it, citing Kingsbury for numerous things
unrelated to the actual crane complaint, which was based on a lie.” See supra n.2 at 1.
Specifically, Kingsbury argues that: (a) according to OSHA’s field operations
manual, VOSHA, at most, should have conducted an inquiry rather than treating the
complaint as “formal” and thus requiring an inspection; (b) the complaint also should not
Order Page 3 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
have been treated as “formal” to the same effect under 21 V.S.A. § 206(f); (c) the
complaint was too vague to justify an inspection under 21 V.S.A. § 206(f); (d) Mr. Murray
improperly refused to produce a copy of the employee complaint at the time of the
inspection; (e) Kingsbury did not consent to the warrantless inspection; and (f) the
decision to inspect was arbitrary and thus invalid under Vermont’s Administrative
Procedures Act, 3 V.S.A. §§ 800–848.
None of these arguments suggests any due process or other constitutional or
statutory violation or any fundamental unfairness remotely warranting the severe
remedy of dismissal urged by Kingsbury. “Congress enacted [OSHA] ‘to assure so far as
possible every working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources.’” Green Mountain Power Corp. v.
Comm’r of Lab. & Indus., 136 Vt. 15, 23 (1978) (citation omitted). “OSHA, being
remedial and preventative in nature, is construed liberally in favor of the workers it was
designed to protect.” Contractors Crane Service, Inc. v. Commissioner of Labor and
Industry, No. 2000-191, 2001 WL 36140451, *2 (Vt. Sept. 2001) (unpub. mem.).
(A) The Field Operations Manual
Kingsbury asserts that under provisions of OSHA’s Field Operations Manual
(FOM), VOSHA should have treated the employee complaint as “informal” and conducted
an “inquiry” rather than skipping to an inspection and, had it done so, no inspection ever
would have occurred.4 It is unnecessary to address the substance of this argument
because Kingsbury is improperly trying to use the FOM as a source of enforceable rights.
4 The State maintains, however, that under the FOM there was no irregularity with the
decision to inspect.
Order Page 4 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
The FOM is a set of internal policies and procedures—guidance materials for
employees—not enforceable administrative rules. The FOM expressly includes this
“disclaimer:” “This manual is intended to provide instruction regarding some of the
internal operations of [OSHA], and is solely for the benefit of the Government. No
duties, rights, or benefits, substantive or procedural, are created or implied by this
manual. The contents of this manual are not enforceable by any person or entity against
the Department of Labor or the United States [hence, VOSHA]. Statements which
reflect current Occupational Safety and Health Review Commission or court precedents
do not necessarily indicate acquiescence to those precedents.” OSHA FOM, Abstract-2.
Kingsbury has come forward with no authority to the contrary. See Triumph Constr.
Corp. v. Sec’y of Lab., 885 F.3d 95, 99 (2d Cir. 2018) (“The [FOM] is ‘only a guide for
OSHA personnel to promote efficiency and uniformity, [is] not binding on OSHA or the
Commission, and [does] not create any substantive rights for employers.’”). Kingsbury’s
argument has no merit.
(B) Treatment of Complaint as “Formal” under 21 V.S.A. § 206(f)
Kingsbury also asserts that VOSHA erred under 21 V.S.A. § 206(f) by treating the
employee complaint as “formal” and conducting an inspection for that reason. This
argument fundamentally misunderstands the statutory scheme. Section 206(f) makes no
distinction between “formal” and “informal” employee complaints. Rather, § 206(a), on
its face, gives the Commissioner expansive discretion to “enter upon a premise . . . for the
purpose of inspecting the premises within reasonable limits and in a reasonable manner,
to determine whether the provisions of the VOSHA Code . . . are being observed. If entry
is refused, the Commissioner or the Director may apply to a Superior judge for an order”
Order Page 5 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
permitting such entry.5 See 29 U.S.C. § 657(a) (the federal counterpart is to the same
effect). Section 206(f), on the other hand, says that when VOSHA receives an employee
complaint of certain specificity and it makes a certain finding, that it “shall” conduct a
special inspection. Nothing in § 206(f) limits VOSHA’s discretion to inspect under §
206(a)—the purport of § 206(f) is to command, not bar, an inspection in certain
circumstances. Kingsbury’s argument flips the script by turning a provision mandating
an inspection into one that bars it. Kingsbury’s approach is untethered to the statutory
language, and the Court rejects it. See Burkart Randall Div. of Textron, Inc. v. Marshall,
625 F.2d 1313, 1321 (7th Cir. 1980) (“We can find no indication in the Act or in judicial
interpretations . . . that OSHA may not determine that an inspection is justified on the
basis of an informal employee complaint.”).
(C) Vagueness under 21 V.S.A. § 206(f)
Kingsbury argues that the employee complaint in this case was too vague to justify
an inspection under 21 V.S.A. § 206(f). This is a variation on the interpretive flaw at
work in Section (B) above. Section 206(f) makes a special inspection mandatory in
certain circumstances where there is an employee complaint (“notice”), including that
“The notice shall be reduced to writing, shall set forth with reasonable particularity the
grounds for the notice, and shall be signed by the employees or representative of
employees.” Again, this is a provision that can lead to a mandated special inspection. It
is not a limitation on the Commissioner’s discretion to inspect under § 206(a).
5 VOSHA’s broad discretion under § 206(a), thus, is subject to the employer’s right to
refuse the inspection, which then would require an administrative inspection warrant
subject to constitutional standards. See generally Marshall v. Barlow's, Inc., 436 U.S.
307 (1978) (warrantless OSHA inspection without consent, except in limited
circumstances, violates the Fourth Amendment).
Order Page 6 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
(D) Production of the Complaint at the Time of the Inspection
Kingsbury contends that the inspector improperly failed to hand over a hardcopy
of the employee complaint at the time of the inspection. Section 206(f) provides that “A
copy of the notice [the employee complaint] shall be provided the employer or his or her
agent no later than at the time of inspection.” The obvious purpose of this provision is to
inform the employer of the nature of the complaint and hence the nature of the
inspection.6 In this instance, the inspector read the full complaint aloud, without
objection, rather than handing it over. The State maintains that it was prompted by
concerns as to distancing—the inspection took place in the earliest days (March 2020) of
the pandemic. Kingsbury suggests that it nevertheless could have been handed over
safely.
While that may have been a better practice to provide the physical copy, the Covid
pandemic either necessitated or counselled in favor of additional cautions in various
areas. Most importantly, there is no serious dispute that a full description of the
contents of the notice was provided to Kingsbury and that is the principal purpose of
Section 206(f). Kingsbury has proffered no palpable claim of prejudice relating to oral
versus written notice. Without some authority supporting Kingsbury’s argument, of
which it has come forward with none, the Court fails to see how the technical failure to
provide a hard copy of the notice could vitiate Kingsbury’s consent to the inspection (see
below) or otherwise warrant dismissal.
6 A discretionary inspection under 21 V.S.A. § 206(a) is not necessarily provoked by a
complaint and thus has no analogous notice provision.
Order Page 7 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
(E) Consent to the Warrantless Inspection
Kingsbury contends—at least nominally—that it did not consent to the inspection.
Without consent, an administrative inspection warrant would have been required. 21
V.S.A. § 206(a); see also infra n.5 at 5. There was no warrant in this case, but neither
was there any lack of consent.
Kingsbury does not suggest that it refused to permit the inspection. Rather, it
argues, in essence, that it lacked capacity to consent due to the vagueness of the
employee complaint (i.e., how could it consent if it did not really know what it was
consenting to?). The record, however, is clear that the inspector showed up to inspect,
provided notice of the contents of the precipitating complaint, the employee in charge7
permitted the inspection, accompanying Mr. Murray as he inspected, and that consent
was never withdrawn. Nor is there any indication that the consent somehow was
obtained by unfair means, such as trickery or overbearing conduct.
Kingsbury was free to refuse or limit consent and, thus, obligate VOSHA to seek a
warrant if it were so inclined, shifting the determination of the propriety and scope of
any inspection to a court at the relevant time (when VOSHA thought it should inspect).
Having not done so, it is now improperly attempting to convert its own failure to refuse
to consent at the time of inspection into a basis for dismissal after the fact. It has cited
no authority that would support that outcome. The available case law is plainly to the
contrary. See, e.g., Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 122 (7th Cir.
7
Kingsbury’s suggestion at oral argument the person who provided the consent was an
underling is not supported by the record. The employee, Larry Rabideau, described
himself as the “Superintendent” and described his role as: “Running the whole project,
keeping everything up on schedule, making sure everybody is moving, checking over the
job site.” Hearing Transcript at 343.
Order Page 8 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
1981) (“Since [Employer’s] representatives were present at all times during those
inspections and did not raise any objections when informed of the intended sampling, any
Fourth Amendment objection to those surveys was waived.”); Lake Butler Apparel Co. v.
Secretary of Labor, 519 F.2d 84, 88 (5th Cir. 1975) (Employer “cannot obtain a ruling on
constitutionality when it did not assert its rights at the time of the inspection.”).
Kingsbury’s argument on this issue is not persuasive.
(F) Arbitrariness under the APA
Finally, Kingsbury argues that the decision to inspect was “arbitrary” under the
APA and should be voided, citing 3 V.S.A. § 801(b)(13)(A). That subsection defines
“arbitrary.” That is all. Subsection 801(b)(13)(B), which Kingsbury neither cites nor
discusses, says this: “The General Assembly intends that this definition be applied in
accordance with the Vermont Supreme Court’s application of ‘arbitrary’ in Beyers v.
Water Resources Board, 2006 VT 65, and In re Town of Sherburne, 154 Vt. 596 (1990).”
Those cases address the Water Resources Board’s classification as to public use of the
Chittenden Reservoir (Beyers) and its determination that the then-current classification
of a portion of the Ottauquechee River was contrary to the public interest (Sherburne).
Kingsbury fails to explain how these cases, and the legislature’s subsequent adoption of a
statutory definition of “arbitrary” to flesh out its meaning in those contexts, has any
bearing whatsoever on this case, and the Court fails to see any.
VOSHA received a complaint that it viewed as serious, and it decided to
investigate, eventually inspecting the job site with Kingsbury’s consent. If Kingsbury
thought the inspection was unwarranted, whether because it was arbitrary or for any
Order Page 9 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
other reason, it was free to decline consent so that its reasonableness could be tested in
court. Instead, it consented.
Kingsbury’s arbitrariness argument has no merit.
III. The Specific Violations
Kingsbury argues that all of the violations found by the Board either lack
substantial evidence or amount to legal error. With one exception, the Court disagrees.
(A) Violation 1 (strain relief of cords)
29 C.F.R. § 1926.405(g)(2)(iv)
Kingsbury objects that Violation 1 (strain relief of cords) arose out of Mr. Murray
“just . . . walking everywhere” and could not have been in plain sight within the
reasonable scope of the inspection. The record is clear that the cords at issue were
connected to a generator and a “concrete vibrator” located right next to the crane and the
north digester, respectively, that themselves plainly were within the reasonable scope of
the inspection. Mr. Murray testified that he noticed the violations incidentally when
walking by, noting that he has a trained eye and violations jump out at him. Mr.
Rabideau (who accompanied Mr. Murray on the inspection) testified that he did not
believe that was possible. That is the thrust of the record on this point. The Board
credited Mr. Murray’s testimony on this issue.
The Board’s determination does not lack substantial evidence. As in other
contexts, credibility determinations generally are left to the discretion of the finder of
fact. As the 7th Circuit has described:
In attacking a credibility determination of the ALJ on appeal, [Employer]
must overcome the great deference we accord the finder of fact, who is in a
much better position than we to determine which witness is more
believable. To carry this burden requires “uncontrovertible” evidence, which
must take the form of documentary evidence or physical facts as long as the
Order Page 10 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
testimony accepted by the ALJ is internally consistent or at least reasonably
coherent and facially plausible.
Union Tank Car Co. v. Occupational Safety & Health Admin., 192 F.3d 701, 706 (7th Cir.
1999) (citations omitted). Competing testimony, all that Kingsbury points to here, is
insufficient.
(B) Violation 2 (Gaps in Scaffolding)
29 C.F.R. § 1926.451(b)(1)(i)
Kingbury argues that Violation 2 (gaps in scaffolding) is in error because the
standard permits gaps larger than the standard when the employer can demonstrate
that the gaps were necessary. Kingsbury argues that it demonstrated the necessity of
larger gaps due to the curvature of the structure about which the scaffolding was
constructed.
The cited standard reads, in relevant part, as follows:
(b) Scaffold platform construction.
(1) Each platform on all working levels of scaffolds shall be fully planked
or decked between the front uprights and the guardrail supports as
follows:
(i) Each platform unit (e.g., scaffold plank, fabricated plank,
fabricated deck, or fabricated platform) shall be installed so that the
space between adjacent units and the space between the platform
and the uprights is no more than 1 inch (2.5 cm) wide, except where
the employer can demonstrate that a wider space is necessary (for
example, to fit around uprights when side brackets are used to
extend the width of the platform).
(ii) Where the employer makes the demonstration provided for in
paragraph (b)(1)(i) of this section, the platform shall be planked or
decked as fully as possible and the remaining open space between
the platform and the uprights shall not exceed 9 ½ inches (24.1 cm).
29 C.F.R. § 1926.451(b)(1).
Order Page 11 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
Kingsbury’s argument that it, in fact, demonstrated necessity is meritless on its
face. The Board found gaps of up to 11 inches in width between the walking surface and
the wall, a finding that Kingsbury has not contested. Under 29 C.F.R. §
1926.451(b)(1)(ii), which Kingsbury does not cite, the maximum permissible gap required
by necessity is 9 ½ inches.
Kingsbury also argues that there was testimony that the scaffolding was not used
in any event. The cited testimony is to the effect that the scaffolding may not have been
in use on the day of the inspection. Kingsbury cites no authority for the highly
questionable proposition that a violation is actionable only if there is evidence that it
reasonably could have harmed an employee on the day of the inspection. The scaffolding
obviously was constructed to be used and had been in place long before the inspection. It
presented a risk of use and a risk of danger in that event.
Finally, Kingsbury argues that the violation should not have been treated as
“serious” under the FOM because that designation relates to a risk of death or serious
bodily harm. Kingsbury takes nothing from this argument for two reasons. First, the
provisions of the FOM do not provide Kingsbury with a source of actionable rights. See
supra Section II(A) at 4–5.
Second, the record does not support it. Kingsbury cites testimony of Mr. Murray
that it characterizes as conceding that the gaps were not such that an employee could
have fallen completely through and hit the ground beneath. It then argues ipse dixit
that, therefore, there was no risk of death or serious bodily harm.
Mr. Murray, however, did not concede that the gaps could not have allowed an
employee to fall to the ground. More importantly, the cited testimony does not address
Order Page 12 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
whether the gaps presented a risk of serious bodily harm or death. It is by no means
clear that one would have to fall to the ground to be at risk of serious bodily injury from
unsafe scaffolding. Other significant risks from dangerous gaps could also have been
present. As far as the cited testimony goes, Mr. Murray also was concerned about
contributing risk presented by insufficient weight tolerance of the guardrails.
(C) Violation 3 (Competent Person to Oversee Scaffold Construction)
29 C.F.R. § 1926.451(f)(7)
The Board found that Kingsbury violated 29 C.F.R. § 1926.451(f)(7), which
provides: “Scaffolds shall be erected, moved, dismantled, or altered only under the
supervision and direction of a competent person qualified in scaffold erection, moving,
dismantling or alteration. Such activities shall be performed only by experienced and
trained employees selected for such work by the competent person.” A “competent
person” is “one who is capable of identifying existing and predictable hazards in the
surroundings or working conditions which are unsanitary, hazardous, or dangerous to
employees, and who has authorization to take prompt corrective measures to eliminate
them.” 29 C.F.R. § 1926.450(b) (emphasis added). The Board held that Kingsbury had
no such competent person in charge of the scaffolding. Kingsbury argues that the
testimony was to the contrary.
The Board’s error as to this violation is readily apparent from its findings. The
hearing officer found substantially as follows:
[E]ven if we were to accept as true that Mr. Tatro supervised these tasks,
and that he possessed the requisite training and experience to do so as a
competent person, the fact remains that, due to the numerous deficiencies
with the scaffold, he clearly was not acting as a competent person at the
time. Mr. Murray testified that the scaffolding had missing guardrails and
planking issues, which no competent person would have approved.
Order Page 13 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
The Board declined to modify this determination on discretionary review.
The purport of this determination is that because the scaffold was constructed
poorly, then whoever was in charge of it must have been incompetent, effectively turning
one violation (how it was constructed) into two (whoever did it must have been
incompetent). By that reasoning, no scaffold could ever have been supervised by a
competent person if any deviation from regulatory requirements were later found. This
is error. The regulatory definition of “competent person” clearly looks to the person’s
capabilities and authority to take corrective action. The State points to no record
evidence to the effect that Kingsbury failed to have a capable person in charge of the
scaffolding with authority to take corrective action, notwithstanding any actual
shortcomings. The burden below was on VOSHA to establish the violation. The Board
effectively and improperly shifted the burden to Kingsbury to disprove it.
Violation 3 is vacated for that reason.
(D) Violation 4 (Unprotected Sides and Edges)
29 C.F.R. § 1926.501(b)(1)
The Board found that Kingsbury improperly left the edge of the hydrolyzer tank (a
walking surface) unprotected by a safety system (such as guardrails) to prevent falls of
greater than 6 feet. Kingsbury argues that the record shows that the edge was not a
walking surface, no work was performed in the area, and the area was restricted to
prevent use. In the Court’s view, the record supports Violation 4.
Mr. Murray testified that there was backfill on one side of the wall allowing one to
walk up to the edge, a ladder on the other side providing an access point into the
hydrolyzer, and no guardrails. The ladder reasonably implies that someone did or would
have, in fact, used it as an access point. He further testified that there was an electrical
Order Page 14 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
“conduit” near the edge, further implying that employees had used the unprotected area.
To the extent that Kingsbury argues that the area was restricted, its point is that there
was red flagging cordoning off the area to prevent access. As Mr. Murray testified,
however: “The red flagging, as you can see in picture 39, is down. Someone took it down
most likely to put that electrical conduit at the perimeter of the hydrolyzer and didn’t put
it back up once they were done.” Mr. Murray’s testimony is sufficient to support this
violation.
(E) Violation 5 (Toprail Capable of Withstanding the Application of Force)
29 C.F.R. § 1926.451(g)(4)(vii)
This violation relates to whether a guardrail system on scaffolding next to an
“open-air tank” could withstand sufficient force. There is no dispute that the guardrail
had to be constructed to withstand 200 pounds of force, and that the traditional way of
constructing it was not feasible due to the curvature of the structure. Kingsbury,
instead, installed flexible “strapping.” Mr. Murray testified that it is generally accepted
in the industry that the strapping used is insufficient to comply with the 200-pound
standard. Kingsbury points to testimony that it consulted with an engineer as to the
strapping and that it hung a 200+ pound weight to it, which it supported. The Board
expressly rejected Kingsbury’s testimony as lacking credibility—witnesses were unable
to identify the engineer who affirmed its use of strapping and there was no
documentation that such a consultation in fact had occurred. It also was not persuaded
that merely hanging a weight on the strapping was a sufficient way to demonstrate
compliance with the standard.
The Board did not err in accepting Mr. Murray’s testimony and rejecting that of
Kingsbury’s witnesses. Credibility determinations are for the finder of fact. Otherwise,
Order Page 15 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
Mr. Murray’s opinion as to industry standards could have been more detailed, but he is
an experienced industry professional, has significant OSHA compliance training, and has
substantial experience in his current position. See Hearing Transcript 8–12 (describing
his professional background). The Board did not err in relying on Mr. Murray’s
experience and his technical opinion.
(F) Violation 7 (Confined Spaces)
29 C.F.R. § 1926.1203(a)
This violation relates to whether Kingsbury properly identified “confined spaces”
on the site. On discretionary review, the Board affirmed that the hydrolyzer was a
“confined space” and had not been so identified. It declined to address whether the other
tanks were unidentified confined spaces reasoning that its determination as to the
hydrolyzer was sufficient to affirm the violation.
The regulatory definition of confined space is as follows:
Confined space means a space that:
(1) Is large enough and so configured that an employee can bodily enter it;
(2) Has limited or restricted means for entry and exit; and
(3) Is not designed for continuous employee occupancy.
29 C.F.R. § 1926.1202. Kingsbury concedes the first and third factors. It argues that the
digester did not have “limited or restricted means for entry and exit,” however, because it
had multiple means of ingress and egress, specifically: an extension ladder and a “man
hatch.”
The Board found the violation, reasoning that ingress and egress may be limited or
restricted, as here, despite more than one available way in or out. Its view is supported
by an OSHA opinion letter that equates “limited or restricted means for entry and exit”
Order Page 16 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
with “some impediment to egress.” See opinion letter at https://www.osha.gov/laws-
regs/standardinterpretations/2016-09-08.
The obvious purpose of identifying confined spaces under 29 C.F.R. § 1926.1203 is
to further identify so-called permit-required confined spaces so that the employer can
provide proper notice of them and their hazards to employees and take appropriate steps
to mitigate those hazards. Limitations on ingress and egress limit employees’ ability to
respond to injuries or dangerous conditions. As Mr. Murray testified, “To put some—to
put a crew of guys to work in—in a confined space no matter what the size of it if
somebody was to get injured, having limited access and egress makes getting them
assistance, whether it’s first aid or being removed by emergency medical services, more
of challenge.” Hearing Transcript 50.
The key issue as the Court see it is whether reasonable access is somehow limited,
not whether there is more than one possible point of access. As VOSHA program
manager Daniel Whipple testified, a space is not “limited” for relevant purposes: “When
an employee can exit a structure much the same as they would exit a room without any
more limitations than exiting room.” Hearing Transcript 236. The Court sees no error in
the finding that the hydrolyzer was a confined space that should have been identified as
such.
Kingsbury also argues that Mr. Murray’s testimony was to the effect that the
hydrolyzer presented none of the risks associated with confined spaces; and, therefore, it
should not have been considered one. The violation, however, relates to the failure to
identify the digester as a confined space, rather than the failure to take steps to mitigate
risk after properly identifying it. More importantly, Kingsbury’s representations as to
Order Page 17 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont
Mr. Murray’s testimony are inaccurate. He plainly testified that there were risks
present as to the hydrolyzer specifically:
A. Okay. 29 shows the extension ladder that’s used for access and
egress in and out of the hydrolyzer. That’s the only access. That’s
considered limited access and egress. You know other hazards that are
visible down there, you know, it looks like the bottom of the tank is all wet.
Could be slippery. Could be fall hazards down there. Housekeeping is not
terrible. It’s not bad and—
Q. Take a look at 43.
A. Okay, and 43 here we’re looking at the form scaffold from what
believe is the center wall in this digester and the end—the guardrails at the
end of the scaffold are missing so there’s fall hazard there. If you look at the
concrete floor in the digester, housekeeping here is horrible. There’s just
debris everywhere.
Q. And what does that tell you as far as this confined space?
A. Well it contains hazards—known hazards that actually qualify as
permit required confined space due to the number of hazards that are in
there. It also shows on this whole side of the digester that there is no other
way out.
Hearing Transcript 51–52.
Violation 7 is supported by substantial evidence.
Conclusion
For the foregoing reasons, Violation 3 is vacated; the Board’s decision as to
Violations 1, 2, 4, 5, and 7 are affirmed. This case is remanded to the Board to modify
the citation accordingly.
Electronically signed on Thursday, September 28, 2023, per V.R.E.F. 9(d).
_______________________
Timothy B. Tomasi
Superior Court Judge
Order Page 18 of 18
22-CV-04141 Kingsbury Companies, LLC v. Commissioner of Labor, State of Vermont