1

In the absence of a specific Commission rule as to summary judgement, Rule 56 of the Federal

Rules of Civil Procedure applies by virtue of Commission Rule 2, 29 C.F.R.§ 2200.2. The Federal Rule

provides, in pertinent part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.

2

The subject citations allege violations of Section 5(a)(1), the general duty clause which was

enacted to cover serious hazards to which no specific standard applies. To prove a Section 5(a)(1)

violation, the Secretary must establish that the employer failed to render its workplace free of a hazard,

which was recognized by the employer or its industry, and which was causing or likely to cause death or

 United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

_____________________________________

SECRETARY OF LABOR, :

 :

 Complainant, :

 : 

 v. : OSHRC DOCKET NO. 08-1104 

 : 

IMPERIAL SUGAR COMPANY, : 

IMPERIAL-SAVANNAH, L.P., :

 : 

 Respondents. :

_____________________________________: 

ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

Under consideration is Respondents’ January 27, 2009, Motion for Partial Summary

Judgment, Complainant’s February 27, 2009, Response thereto, and Respondents’ March 9, 2009,

Reply. Respondents allege that summary judgment should be entered in their favor regarding the

Complainant’s general duty allegations with respect to bucket elevators contained in Item 5(b) of

Citation 1 and Item 2(a) of Citation 2.1 The subject citation items allege violations of Section 5(a)(1)

of the Act, in that the bucket elevators, which convey sugar and generate combustible dust, presented

recognized fire, deflagration, and/or explosion hazards.2 It is Respondents’ position that the
serious physical harm. In addition , the Secretary must demonstrate the feasibility and likely utility of

specific abatement measures.

3

The Secretary points to the narrow scope of the declaration in support of her position that there

are material facts in dispute; she also questions Mr. Ziegler’s competency to make such a statement.

4

The Secretary’s citation references NFPA 61 as a feasible means of abatement.

allegations fail as a matter of law because there is no genuine factual issue as to whether the bucket

elevators are exempt from the purportedly applicable requirements and that the Secretary thus cannot

establish the threshold requirement to establish a prima facie case, that is, the existence of a

recognized hazard. Respondents allege that it is undisputed that all the bucket elevators in Imperial’s

packing house operated at or below belt speeds of 500 FPM, meeting the exemption requirements

from the National Fire Protection Association (“NFPA”) 61, which appears to be the industry

standard relied upon by the Secretary in providing the basis for the recognition of the purported

hazards. To the motion, Respondents have attached a declaration from Dwayne Zeigler, Imperial’s

Senior Manager Construction Engineering, which states, inter alia, that to his knowledge none of the

bucket elevators listed operated at belt speeds at or above 500 FPM.

The Secretary disputes Respondents’ allegation that there are undisputed facts which entitle

Respondents to judgment as a matter of law. In support of her position, the Secretary, through the

declaration of Kurt Petermeyer, OSHA Area Director, alleges that at the time of the inspection the

speed of the bucket elevators was unknown to Mr. Zeigler,3 and others; the declaration also cites

additional evidence disclosed during the inspection in support of the Secretary’s position.

Furthermore, the Secretary disputes the fact that the exemptions found at NFPA 61 are evidence of

Respondents’ or the industry’s recognition of fire and explosion hazards associated with the subject

bucket elevator usage.4 It is the Secretary’s position that even at reduced speeds a recognized hazard

can exist; therefore, the speed issue is not determinative of whether or not Respondents are entitled

to judgment as a matter of law.

The Commission has long recognized that summary judgment is not appropriate where

material facts are in dispute. Van Buren-Madawaska Corp., 13 BNA OSHC2157 (No. 87-214, 1989).

Respondents have not met the initial burden of showing the absence of a genuine issue of material

fact. I find that there is not an adequate record before me to establish that there are no material facts

requiring trial for their resolution and that Respondents are entitled to relief as a matter of law.
Respondents’ Motion for Partial Summary Judgment is DENIED.

SO ORDERED this 13th day of March, 2009.

/s/ Covette Rooney

COVETTE ROONEY

U.S. OSHRC JUDGE

O:\Covette\IMPERIAL SUGAR\OrderMotionforSJ 08-1104 03-13.wpd
 United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR, : 

Complainant, :

v. 

 : OSHRC 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 may be served and

filed electronically. I further certify that a copy of the Order Denying Summary Judgement was

electronically served on March 13, 2009 on the following parties:

Charles H. Morgan, Esq. 

charlie.morgan@alston.com

Matthew J. Gilligan, Esq. 

matt.gilligan@alston.com

Ashley D. Brightwell, Esq. 

ashley.brightwell@alston.com

Jeremy D. Tucker, Esq. 

jeremy.tucker@alston.com 

Alston & Bird LLP 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424

KAREN E. MOCK 

Mock.karen@dol.gov

ANGELA F. DONALDSON 

 Donaldson.angela@dol.gov

U. S. Department of Labor

Office of the Solicitor

61 Forsyth Street, S.W.

/s/Covette Rooney

COVETTE ROONEY

 JUDGE, OSHRC