LEGAL02/31015189v3

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant, )

)

v. )

) Docket Nos. 08-1104, 08-0533, 08-1195

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P.; )

and IMPERIAL DISTRIBUTION, )

INC., )

)

Respondents. )

)

RESPONDENTS’ MOTION TO CONSOLIDATE

Pursuant 29 C.F.R. § 2200.9, Respondent Imperial-Savannah, L.P. (hereinafter

“Imperial” and improperly captioned as Imperial Sugar Company and Imperial Distribution,

Inc.) respectfully moves the Review Commission for an order consolidating the matters pending

as Docket Nos. 08-1104, 08-0533, and 08-1195, showing the Commission the following:

1. Docket No. 08-1104 relates to Complainant’s citations issued on July 25, 2008 for

Imperial’s Port Wentworth, Georgia facility. Docket No. 08-0533 relates to Complainant’s

interim citations issued on March 21, 2008, for Imperial’s Gramercy, Louisiana facility. Docket

No. 08-1195 relates to Complainant’s citations issued on July 25, 2008 for Imperial’s Gramercy,

Louisiana facility.

2. Imperial’s Georgia and Louisiana facilities that are at issue in these cases are both

cane sugar refineries that produce various types of sugar, including granulated sugar, brown

sugar, and powdered sugar. Both facilities serve customers in the retail and manufacturing

sectors.

3. The Commission’s Rules provide:
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Cases may be consolidated on the motion of any party, on the Judge's own

motion, or on the Commission's own motion, where there exist common parties,

common questions of law or fact or in such other circumstances as justice or the

administration of the Act require.

29 C.F.R. § 2900.9.

4. Common questions of law underlie the citations issued for both facilities involved

in these matters.

5. For example, in Docket No. 08-0533, OSHA cited Imperial’s Louisiana facility

for alleged inadequate control of sugar dust, primarily in sugar packaging areas; alleged

inadequate dust collection equipment, primarily in sugar packaging areas; alleged inadequate fire

protection; and alleged use of improper electrical equipment in areas classified as hazardous

because of sugar dust, primarily sugar packaging areas. (See Compl. & Exs., Dkt. No. 08-0533.)

Similarly, in Docket No. 08-1195, OSHA cited Imperial’s Louisiana facility for alleged

inadequate control of sugar dust, primarily in sugar packaging areas; alleged inadequate dust

collection equipment, primarily in sugar packaging areas; alleged inadequate fire protection;

alleged use of improper electrical equipment in areas classified as hazardous because of sugar

dust, primarily sugar packaging areas; alleged inadequate fire protection and prevention

measures; alleged inadequate emergency evacuation measures; and alleged inadequate fall

protection. (See Compl. & Exs., Dkt. No. 08-1195.) Finally, in Docket No. 08-1104, OSHA

cited Imperial’s Georgia facility for alleged inadequate control of sugar dust, primarily in sugar

packaging areas; alleged inadequate dust collection equipment, primarily in sugar packaging

areas; alleged inadequate fire protection; and alleged use of improper electrical equipment in

areas classified as hazardous because of sugar dust, primarily sugar packaging areas; alleged

inadequate fire protection and prevention measures; alleged inadequate emergency evacuation

measures, and alleged inadequate fall protection. (See Compl., Dkt. No. 08-1104, Exs. A-C.)
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6. The bulk of the many citations issued by Complainant in these actions allege

“egregious” “willful” violations of the following health and safety standards: OSHA’s general

duty clause (§ 5(a)(1)); housekeeping (29 C.F.R. § 1910.22); and electrical classification (29

C.F.R. §§ 1910.307, 1910.178). (See id.; compare Compl. & Exs., Dkt. No. 08-0533 with Compl.

& Exs., Dkt. No. 08-1195 and Compl., Dkt. No. 08-1104, Exs. A-C.) All of the citations issued

under these standards are based on the alleged presence of hazardous levels of combustible sugar

dust. Thus, the same legal standards and principles will apply to the determination of both the

fact of the alleged violations and the characterization of the violations for both facilities.

Moreover, Imperial’s defenses to the citations will be similar given the common facts and legal

issues at both facilities.

7. Common questions of fact exist among these matters. Imperial expects that a

number of fact and expert witnesses both for Complainant and Respondent will be the same for

all matters.

8. Pursuant to 29 C.F.R. § 2900.9, the Commission has routinely consolidated cases

involving common questions of fact or common questions of law. See, e.g., Sec’y of Labor v.

Marcella Nursing & Rehab. Ctr., 19 O.S.H. Cas. (BNA) 1509, at *1 & n.2 (O.S.H.R.C.A.L.J.

2001) (consolidating cases against three nursing homes that were subsidiaries of same parent

company and that were cited for similar violations, centered on use of medical supplies, found in

4-month investigation of the three facilities); Sec’y of Labor v. State Sheet Metal Co., Inc., 16

O.S.H. Cas. (BNA) 1155, at *1-*2, *4 (O.S.H.R.C. 1993) (consolidating cases involving

investigations into respondent’s operations in two cities where “[t]he essential facts . . . are that

both [facilities] were more than 25 feet high . . . and that no fall protection was being used at

either site”); Sec’y of Labor v. Amax Lead Co. of Mo., 12 O.S.H. Cas. (BNA) 1878, at *3-*4 &
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n.1 (O.S.H.R.C. 1986) (consolidating cases against smelters in three different states for alleged

violation of lead exposure standards at all three plants), rev’d on other grounds, USWA v.

Schuylkill Metals Corp., 828 F.2d 314 (5th Cir. 1987); Sec’y of Labor v. Gen. Motors Corp. GM

Parts Div., 11 O.S.H. Cas. (BNA) 2062, at *1-*2 & n.1 (O.S.H.R.C. 1984) (consolidating cases

involving respondent’s warehouses in Georgia and Massachusetts where similar work was done

at both locations and citations concerned personal protective equipment violations at both

plants), aff’d, 764 F.2d 32 (1st Cir. 1985). The cases at issue here involve common questions of

both fact and law, as demonstrated above, and thus warrant consolidation under 29 C.F.R. §

2900.9.

9. Given the common factual and legal issues underlying these cases, it is no

surprise that Complainant, itself, treated this matter as one investigation into Imperial’s

operations, particularly its sugar packaging operations. In its investigation, OSHA interviewed

several corporate-level executives and managers whose responsibility covers both the Georgia

and Louisiana facilities and many of whom do not work at either facility. Facts from these and

other witnesses, therefore, will overlap and be relevant to litigation of the citations issued for

both facilities.

10. Moreover, in the Complainant’s public statements about the citations,

Complainant presented the citations as a single set of allegations against Imperial, and combined

the total penalties for the two inspections in order to announce that the combined total penalties

represented “the third largest fine in the history of OSHA.” OSHA Press Release, July 25, 2008

(“The Occupational Safety and Health Administration (OSHA) today issued citations proposing

penalties totaling $8,777,500 against the Imperial Sugar Co. and its two affiliates alleging

violations at their plants in Port Wentworth, Ga., and Gramercy, La. . . . The proposed penalties
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against Imperial Sugar represent the third largest fine in the history of OSHA.”) Thus, by its

own admissions, OSHA acknowledges the common factual and legal issues involved in the

citations upon which Complainant’s Complaints are based. These facts demonstrate that

Complainant will not be prejudiced if these cases are consolidated for litigation purposes.

11. Imperial will be prejudiced and the resources of both parties and the Commission

will be needlessly wasted if these matters are not consolidated. Without consolidation, identical

discovery will be conducted multiple times, subjecting witnesses to numerous depositions

covering identical topics, multiple document collection and production efforts, and duplicative

and redundant litigation of the same issues. Further, given that many of the same legal issues are

presented in the matters, consolidation will assist in the orderly disposition of the claims and

defenses in the cases.

12. Undersigned counsel for Respondents consulted with Complainant’s counsel prior

to filing this Motion and was informed that Complainant opposes the Motion.

Respectfully submitted this 26

th day of January 2009.

/s/ Patrick J. Veters

Patrick J. Veters

pveters@joneswalker.com

Jane H. Heidingsfelder

jheidingsfelder@joneswalker.com

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE & DENEGRE

201 St. Charles Avenue, 47th Floor

New Orleans, LA 70170

(504) 582-8620

FAX: (504) 589-8620

Attorneys for Respondents

/s/ Charles H. Morgan

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
LEGAL02/31015189v3

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant, )

)

v. )

) Docket Nos. 08-1104, 08-0533, 08-1195

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P.; )

and IMPERIAL DISTRIBUTION, )

INC., )

)

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 the RESPONDENTS’

MOTION TO CONSOLIDATE was electronically served on January 26, 2009 on the following

parties:

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

Michael D. Schoen

schoen.michael@dol.gov

Matthew P. Sallutsi

Office of the Solicitor

U.S. Department of Labor

525 South Griffin Street

Suite 501

Dallas, TX 75202-5020

/s/ Charles H. Morgan

Charles H. Morgan

Alston & Bird LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

charlie.morgan@alston.com