kingsbury v. dept labor

• Court: Vermont Superior Court
• Decided: January 2, 2024
• Docket: 22-cv-4141
• Status: Published

Opinion

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