ALsTON&BIRD ILP

One Atlantic Center

1201 West Peachtree Street

Atlanta, GA 30309-3424

404-881 -7000

Fax:404-881-7777

www.alston.com

Charles H Morgan

Via Certified Mail,

Return Receipt Requested

Direct Dial: 404-881-71ff1

October 6, 2008

E-mail: charlie.morgan@alston.com

The Hon. Dennis L. Phillips

Judge

Occupational Safety and Health Review Commission

One Lafayette Center

1120 20th Street, NW -- 9th Floor

Washington, DC 20036-3419

Re: Secretary ofLabor v. Imperial Sugar C0f11pany; Imperial-Savannah, L.P.,

OSHRC Docket No. 08-1104

Dear Judge Phillips:

Enclosed for filing in the above-referenced matter are the originals and one copy

each ofthe Answer and Defenses ofRespondents and Respondents' Disclosure of

Corporate Parents, Subsidiaries, and Affiliates. I would appreciate it if your office could

have the copies stamped as received and returned to me via the enclosed self-addressed,

stamped envelope. Thank you.

QQQ4.

Charles H. Morgan

CHM:chm

Enclosures

cc: Stanley E. Keen, Esq.

Sharon D. Calhoun, Esq.

Karen E. Mock, Esq. (w/encl.)

Christopher D. Helms, Esq.

LEGAL02/30982498v1

Atlanta. Charlotte. Dallas. Los Angeles· New York. Research Triangle. Silicon Valley. Ventura County. Washington. D.C.
.,

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

IMPERIAL SUGAR COMPANY and

IMPERIAL-SAVANNAH, L.P.,

OSHRC Docket No. 08-1104

Respondents.

Complainant,

v.

)

)

)

)

)

)

)

)

)

)

--------------)

ANSWER AND DEFENSES OF RESPONDENTS

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

respectfully answer the Complaint in this action as follows:

FIRST DEFENSE

The Complaint fails to state a claim upon which reliefmay be granted.

SECOND DEFENSE

Compliance with certain ofthe standards cited is infeasible and/or

impossible.

THIRD DEFENSE

Respondents took steps that were reasonable under the circumstances and

made in good faith to protect employees against any alleged hazards.

LEGAL02/30975373vl
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FOURTH DEFENSE

The following standards are void for vagueness under the United States

Constitution, and the constitutions ofthe State ofGeorgia and State ofTexas:

Section 5(a)(I), referencing ANSI B30.16-1973, NFPA 61 2008 & 2002, and

NFPA 70; 29 C.F.R. § 1910.22(a)(I) and (2); and 29 C.F.R. § 1910.307(c).

FIFTH DEFENSE

To the extent any violations occurred, Respondents did not know and with

the exercise ofreasonable diligence, could not have known, ofthe existence or

extent ofthe hazards and/or violations alleged.

SIXTH DEFENSE

To the extent any violations occurred, they were the result ofisolated and

unpreventable employee misconduct.

SEVENTH DEFENSE

Respondents respond to the introductory paragraph ofthe Complaint by

denying that they violated the Occupational Safety and Health Act of 1972, as

amended ("the Act"), or the safety and health regulations promulgated pursuant to

the Act, and further respond to the enumerated paragraphs as follows:

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LEGAL02/30975373vl
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I.

o

Respondents admit that jurisdiction ofthis action is conferred upon the

Occupational Safety and Health Review Commission by § 1O(c) ofthe Act.

II.

Respondents admit that Imperial-Savannah, L.P. is an employer engaged in a

business affecting commerce within the meaning of § 3(5) ofthe Act. Except as

expressly admitted herein, Respondents deny the allegations set forth in Paragraph

II ofthe Complaint.

III.

Respondents admit that the principal place of business ofRespondents is

8016 Highway 90A, Sugar Land, Texas 77478. Respondents further admit that

Imperial-Savannah, L.P. is engaged in the business ofsugar refining. Except as

expressly admitted herein, Respondents deny the allegations set forth in Paragraph

III ofthe Complaint.

IV.

Respondents deny the allegations set forth in Paragraph IV ofthe Complaint.

V.

Respondents admit that Complainant issued three Citations and Notifications

ofPenalty after an inspection ofthe worksite at 201 Oxnard Drive, Port

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LEGAL02/30975373v1
.I""'*'~.

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Wentworth, Georgia 31407. Except as expressly admitted herein, Respondents

deny the allegations set forth in Paragraph V ofthe Complaint.

VI.

Respondents admit that the Citations and Notifications ofPenalty, copies of

which are attached to the Complaint as Exhibits A, B, and C describe alleged

violations, specify an abatement date, and set forth a proposed penalty for the

alleged violations. Except as expressly admitted, Respondents deny the allegations

in Paragraph VI ofthe Complaint and expressly deny that they violated the Act or

any safety and health regulations promulgated pursuant to the Act.

VII.

Respondents admit the allegations in Paragraph VII ofthe Complaint.

VIII.

Respondents deny the allegations set forth in Paragraph VIII ofthe

Complaint.

IX.

Except as heretofore expressly admitted, Respondents deny each and every

allegation set forth in the Complaint and Citations.

WHEREFORE, having fully answered the Complaint, Respondents pray that

the Complaint, the Citations, the proposed penalties, and the proposed abatement

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LEGAL02/30975373vl
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demands each be dismissed in their entirety and that all fees and costs be assessed

against the Complainant.

/' 4-11

Respectfully submitted, this day ofOctober, 2008.

Charles H. Morgan

charlie.morgan@alsto

Matthew J. Gilligan

matt.gilligan@alston.com

Jeremy K. 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 Imperial

Sugar Company and ImperialSavannah, L.P.

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LEGAL02/30975373v1
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

IMPERIAL SUGAR COMPANY and

IMPERIAL-SAVANNAH, L.P.,

OSHRC Docket No. 08-1104

Respondents.

Complainant,

v.

)

)

)

)

)

)

)

)

)

)

--------------)

CERTIFICATE OF SERVICE

This is to certify that I have this date served a copy ofthe within and

foregoing ANSWER AND DEFENSES by certified U.S. Mail, return receipt

requested with adequate postage affixed thereon, addressed as follows:

Stanley E. Keen, Esq.

Sharon D. Calhoun, Esq.

Karen E. Mock, Esq.

Christopher D. Helms, Esq.

Office ofthe Solicitor

U.S. Department ofLabor

61 Forsyth Street S.W.

Room 7TI0

Atlanta, Georgia 30303

~~

This day of October, 2008.

LEGAL02/30975373v I
c o

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

IMPERIAL SUGAR COMPANY and

IMPERIAL-SAVANNAH, L.P.,

OSHRC Docket No. 08-1104

Respondents.

Complainant,

v.

)

)

)

)

)

)

)

)

)

----------)

RESPONDENTS' DISCLOSURE OF CORPORATE PARENTS,

SUBSIDIARIES, AND AFFILIATES

Pursuant to 29 C.F.R. § 2200.35, Respondents Imperial Sugar Company and

Imperial-Savannah, L.P. respectfully provide this Disclosure ofCorporate Parents,

Subsidiaries, and Affiliates by listing their respective affiliated companies as

follows:

Biomass Corporation

Comercializadora ISC, S. de R.L. de

C.V. Goint venture)

Comercializadora Santos Imperial S. de

R.L. de C.V Goint venture)

Dixie Crystal Foodservice, Inc.

Fort Bend Utilities Company

ICUBE, Inc.

Imperial Distributing, Inc.

Imperial Holly Corporation

Imperial Sweetener Distributors, Inc.

Menu Magic Foods Inc.

Ragus Holdings, Inc.

Refined Sugar Trading Institute Goint

venture)

Savannah Foods & Industries, Inc.

Savannah Foods Industrial, Inc.

Savannah Investment Company

Savannah Molasses & Specialties

Company

Savannah Sugar Refining Corporation

Wholesome Sweeteners Incorporated

Goint venture)
o

/'+J.

Respectfully submitted, this day of October, 2008.

Charles H. Morgan

charlie.morgan@alston

Matthew J. Gilligan

matt.gilligan@alston.com

Jeremy K. 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 Imperial

Sugar Company and InlperialSavannah, L.P.

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LEGAL02/30890811v1
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

IMPERIAL SUGAR COMPANY and

IMPERIAL-SAVANNAH, L.P.,

OSHRC Docket No. 08-1104

Complainant,

Respondents.

v.

)

)

)

)

)

)

)

)

)

----------)

CERTIFICATE OF SERVICE

I hereby certify that I have this date served a true and correct copy of

this DISCLOSURE OF CORPORATE PARENTS, SUBSIDIARIES, AND

AFFILIATES by certified U.S. Mail, return receipt requested with adequate

postage affixed thereon, addressed as follows:

Stanley E. Keen, Esq.

Sharon D. Calhoun, Esq.

Karen E. Mock, Esq.

Christopher D. Helms, Esq.

Office ofthe Solicitor

U.S. Department ofLabor

61 Forsyth Street S.W.

Room 7T10

Atlanta, Georgia 30303

This~ay ofOctober, 2008.

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LEGAL02/30890811 v1
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\

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

v.

Respondents.

Complainant,

Secretary of Labor,

Imperial Sugar Company;

Imperial-Savannah, L.P.,

)

) IN MANDATORY SETTLEMENT

) PROCEEDING

)

) OSHRC Docket No. 08-1104

)

)

)

)

)

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DISCOVERY SCHEDULING ORDER

A Mandatory Settlement Conference is scheduled to convene pursuant to 29 C.F.R. §

120(d) on October 30, 2008 at Atlanta, Georgia. Pursuant to Commission Rule of Procedure

120, 29 C.F.R. § 2200. 120(b)(2)(ii), all discovery otherwise authorized by 29 C.F.R. §§ 2200.53

- 2200.56 and/or the Federal Rules of Civil Procedure is suspended fron1 the date of this order

through October 15,2008.

Accordingly, no depositions shall be noticed or taken and no interrogatories, request for

admissions, and/or requests for production of documents shall be served or answered during the

discovery suspension period.

Notwithstanding the above, the parties may agree to informally exchange or disclose

information, documents, and n1aterials during the discovery suspension period that may aid the

settlement ofthe case.

SO ORDERED.

The Honorable Dennis L. Philli s

U.S. OSHRC Judge

Dated: SEP 2 3 2.

Washington, D.C.