UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

____________________________________)

RESPONDENTS’ OPPOSITION TO PETITIONS FOR LEAVE TO INTERVENE

Respondents Imperial Sugar Company and Imperial-Savannah, L.P. (collectively

“Imperial”) oppose the two Petitions for Leave to Intervene filed in this case on April 16, 2009

(the “Petitions”) by twenty Imperial employees and employee representatives who have filed

civil actions against Imperial and others regarding the February 7, 2008 accident at Imperial’s

sugar refinery in Port Wentworth, Georgia (the “Petitioners”). The Petitioners, who are

represented by two primary law firms and secondary counsel from other firms, have not shown –

or even attempted to show – that their participation in this administrative litigation will assist the

Commission in determining the issues in question or that they have a legitimate interest in

intervention. In fact, their intervention would unnecessarily delay the proceedings here, unduly

hinder the efficient resolution of this case, and open the door for hundreds of other Imperial

employees to seek to intervene. Accordingly, Imperial respectfully submits that the Petitions

should be denied.

I. LEGAL STANDARD FOR INTERVENTION

A petition for leave to intervene in an administrative proceeding before the Commission

pursuant to 29 C.F.R. § 2200.21 “must set forth the petitioner’s interest in the proceeding, show
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that participation of the petitioner will assist in the determination of the issues in question, and

show that the intervention will not unnecessarily delay the proceedings.” Sec’y of Labor v.

Brown & Root, Inc., 7 O.S.H. Cas. (BNA) 1526 (O.S.H.R.C. 1979). The Commission looks for

specific factual support for whether a petitioner’s participation will assist in the adjudication of

the issues. See Brown & Root, Inc., 7 O.S.H. Cas. (BNA) 1526; Sec’y of Labor v. Pa. Truck

Lines, Inc., 7 O.S.H. Cas. (BNA) 1722 (1979); Sec’y of Labor v. Harry Pepper & Assocs., Inc., 7

O.S.H. Cas. (BNA) 1815 (1979).

A petitioner’s interest in the proceedings should be legitimate and aligned with the

purpose of the proceedings. Indeed, the Commission has “caution[ed] that proceedings before

the Commission are not to be used as a forum for litigating matters totally unrelated to the

citation alleging violations of the [OSH] Act on which our proceedings are predicated.” Harry

Pepper & Assocs., 7 O.S.H. Cas. (BNA) 1815. Finally, if a petitioner has made the requisite

showing for intervention, intervention rights may not be unlimited; the Commission may impose

conditions on the intervention to protect the integrity of its proceedings. See Brown & Root, 7

O.S.H. Cas. (BNA) 1526.

II. ARGUMENT AND CITATION OF AUTHORITY

Petitioners have not shown that their interest in intervening in this case is legitimate. In

fact, correspondence from Petitioners’ counsel to Imperial’s civil defense counsel on the day the

Petitions were filed demonstrates that Petitioners want to intervene merely to obtain additional

discovery outside of the civil suits they have filed against Imperial. (See Ex. A. (announcing

intent to intervene so that Petitioners could “get the discovery in all of these [civil] matters done

more quickly”).)1This is improper and not a legitimate interest in intervening in these

proceedings. See Harry Pepper & Assocs., 7 O.S.H. Cas. (BNA) 1815. Contrary to Petitioners

1

This April 16, 2009 letter is attached to this brief as Exhibit A.
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apparent motives, they have no private right of action in this administrative litigation. They do,

however, have a full and fair opportunity to litigate their claims against Imperial and obtain

discovery in the pending civil suits they have filed, and they should not be allowed to piggy-back

their civil claims onto this administrative litigation. There is no legitimate interest to be served

by Petitioners’ intervention in this case, and they have not shown otherwise.

Petitioners also have not shown that their intervention in this case will assist in the

determination of the issues. Petitioners have offered no details or support for their conclusory

assertion that they “can provide insight into topics necessary for a factual determination of the

issues involved” in this case. (Petitions at 2.) Such an assertion is insufficient to carry

Petitioners’ burden, as Commission precedent indicates that proposed intervenors must

specifically show how they can assist in the adjudication of particular issues. See Brown &

Root, Inc., 7 O.S.H. Cas. (BNA) 1526 (considering petitioner union’s “expertise in the steel

erection industry” and “knowledge of structural steel construction techniques and procedures” as

important to intervention decision); Pa. Truck Lines, Inc., 7 O.S.H. Cas. (BNA) 1722 (1979)

(same as to petitioner railway company’s expertise and compliance with the Federal Railroad

Administration’s regulations, which was important to preemption issue); Sec’y of Labor v. Harry

Pepper & Assocs., Inc., 7 O.S.H. Cas. (BNA) 1815 (1979) (same for petitioner electric

company’s expertise regarding the electrical power lines that it owned and controlled, which was

important to abatement issues). Petitioners, none of whom purport to have any relevant

expertise, will only hinder the determination of the issues in this case, particularly given their

stated interest in intervening for their own benefit – to pursue discovery for their civil suits in

another forum.

Finally, Petitioners have failed to show that their intervention will not unnecessarily
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delay the proceedings in this case. In fact, Petitioners’ intervention will delay the proceedings in

what is already a large, complex case set on a tight schedule. Fact discovery ends in just seven

months, with many depositions to be taken in several states in the coming weeks. The hearing in

this case is set for May 2010 and is expected to last three to four weeks. The involvement of the

numerous individual Petitioners, represented by several lawyers in several law firms, in

discovery proceedings and the hearing would undoubtedly multiply the issues and delay this case

unnecessarily.2See Brown & Root, 7 O.S.H. Cas. (BNA) 1526 (“[I]f unconditional intervention

is granted, an intervenor enjoys the same rights as a party.”). Moreover, Petitioners’ intervention

in this case likely would spur the numerous other individuals who have filed suit against Imperial

regarding the February 7, 2008 accident to seek to intervene (forty such suits on behalf of more

than fifty claimants have been filed, and Petitioners represent only a fraction of these claimants).

Indeed, under Petitioners’ apparent position on intervention, all of the employees at Imperial’s

Port Wentworth plant – over 300 of them – are entitled to intervene. The proceedings in this

case would become unmanageable and unduly prolonged if intervention is allowed.

III. CONCLUSION

For the foregoing reasons, Imperial respectfully requests that the Commission deny the

Petitioners leave to intervene in this case.

2

In fact, if Petitioners are permitted to intervene, it is likely that their counsel will intentionally interfere

with the proceedings. Counsel for one Petitioner has already demonstrated a willingness to disrupt the

discovery proceedings. On April 28, 2009, attorney Mark Tate threatened to unilaterally cause the

cancellation of a deposition in this matter, even though he does not represent the witness. The deposition

had been properly subpoenaed by Imperial and was scheduled for April 30. On April 28, Mr. Tate

attempted to notice the witness’s deposition for the same day in the civil litigation. When Imperial’s

counsel in the civil litigation explained that the deposition notice was untimely, and thus they would

move for a protective order regarding any questioning by Mr. Tate, Mr. Tate threatened to “advise” the

witness’s counsel not to produce the witness for the deposition in this case. See Exhibit B to this brief

(Mr. Tate’s email to Imperial counsel in the civil litigation matters, threatening “Just know if you file the

Motion, there will be no witness there for you on the thirtieth.”). Based on this type of conduct, Imperial

believes that Petitioners plan to disrupt and manipulate discovery in this matter in order to attempt to gain

an advantage in the civil litigation matters.
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Respectfully submitted this 1

st day of May 2009.

/s/ Jeremy D. Tucker

Charles H. Morgan

charlie.morgan@alston.com

Matthew J. Gilligan

matt.gilligan@alston.com

Ashley D. Brightwell

ashley.brightwell@alston.com

Jeremy D. Tucker

jeremy.tucker@alston.com

ALSTON & BIRD LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

FAX: (404) 253-8757

Attorneys for Respondents
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

____________________________________)

CERTIFICATE OF SERVICE

I certify that all parties have consented that all papers required to be served in this action

may be served and filed electronically. I further certify that a copy of RESPONDENTS’

OPPOSITION TO PETITIONS FOR LEAVE TO INTERVENE was electronically served on

May 1, 2009 on the following counsel for Complainant:

Karen E. Mock

Mock.Karen@dol.gov

Angela F. Donaldson

Donaldson.Angela@dol.gov

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street S.W.

Room 7T10

Atlanta, Georgia 30303

I further certify that a copy of RESPONDENTS’ OPPOSITION TO PETITIONS FOR

LEAVE TO INTERVENE was served on May 1, 2009 by U.S. mail, postage prepaid, on the

following counsel for Petitioners:

Mark Tate

Tate Law Group

2 East Bryan Street

Suit 600

Savannah, Georgia 31401
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George T. Major, Jr.

Savage, Turner, Pinson & Karsman

P.O. Box 10600

Savannah, Georgia 31412

/s/ Jeremy D. Tucker

Jeremy D. Tucker

Alston & Bird LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

charlie.morgan@alston.com