Complainant’s Response to Respondents’ Motion to Consolidate – Page 1 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

Secretary of Labor, ) 

United States Department of Labor ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket No. 08-1104 

v. ) 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL- ) 

SAVANNAH, L.P., ) 

and its successors ) OSHA Inspection No. 310988712 

 ) 

 Respondents. ) 

and 

Secretary of Labor, ) 

United States Department of Labor ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket Nos. 08-1195 

v. ) 08-0533 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL ) 

SAVANNAH, L.P.; IMPERIAL DISTRIBUTION, ) 

INC., and its successors ) OSHA Inspection No. 311522858 

 ) 

 Respondents, ) 

 ) 

UFCW, LOCAL 1167-P, ) 

 ) 

 Authorized Employee ) 

 Representative ) 

COMPLAINANT’S RESPONSE TO RESPONDENTS’ 

MOTION TO CONSOLIDATE 

 

COMES NOW Complainant, Secretary of Labor, United States Department of Labor, and 

files Complainant’s Response to Respondents’ Motion to Consolidate. In support thereof, 

Complainant states the following:
Complainant’s Response to Respondents’ Motion to Consolidate – Page 2 

I. Introduction. 

 1. Docket Nos. 08-1195 and 08-0533 relate to OSHA Citations issued in conjunction 

with Region VI’s inspection of Respondent Imperial Sugar Company’s (“Imperial”) Gramercy, 

Louisiana sugar refinery (the “Gramercy Case”). Docket No. 08-1104 is based upon the 

Citations issued following OSHA Region IV’s inspection of Imperial’s Port Wentworth, Georgia 

facility (the “Port Wentworth Case”). 

 2. Commission Rule 2200.9 sets forth the standard for consolidation: 

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 

requires. 

 3. Respondents’ Motion to Consolidate (“Motion”) asserted under 29 C.F.R. 2200.9 

should in all things be denied for the following reasons: 

 a. There is insufficient commonality between the parties/facilities in these matters to 

warrant consolidation; 

 b. There is insufficient commonality of issues of law or fact to warrant 

consolidation; and 

c. There are no other special circumstances as justice or the administration of the 

Act require. 

II. Argument 

A. There is insufficient commonality between the parties in these matters to 

warrant consolidation.

 4. Although certain of the corporate entities named in the caption of the subject 

cases are common (Imperial Distribution, Inc. was cited in the Gramercy Case and not in the Port 

Wentworth matter), in point of fact Imperial’s two refinery facilities located in Louisiana and 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 3 

 

Georgia and the attendant Citations issued to each are quite distinct in several respects. For 

instance, while there unquestionably will be testimony at hearing or in oral deposition by select 

Imperial corporate officers who do not work at either facility, the overwhelming majority of 

witness testimony in both cases will come from Respondents’ multiple managers and employees 

from the respective sites in Port Wentworth and Gramercy. 

5. Also significant is the fact that, on the face of the record, there is no commonality 

amongst the attorneys and/or party representatives for either Complainant or Respondents. 

OSHA Region IV personnel investigated the Port Wentworth explosion and resulting fatalities 

and issued Citations, including a significant number of items and proposed penalties. 

Respondents contested the Citations and thereafter, the resulting litigation was docketed by the 

Commission as 08-1104, which is prosecuted entirely by the Atlanta Regional Solicitor’s Office. 

Conversely, Region VI OSHA personnel investigated the Gramercy facility and ultimately issued 

two Citations to Respondents. Upon notice of contest of these Citations, the Commission 

docketed such cases as 08-0533 and 08-1195, which are prosecuted solely by the Dallas 

Regional Solicitor’s Office. Apart from the handful of Imperial corporate officers whose 

presence or testimony may overlap in these matters, Respondents cannot demonstrate any 

meaningful identity between the parties and/or representatives in either of these separate 

proceedings. 

6. Notable also is the fact the Gramercy facility has union representation, which has 

appeared and elected party status in Docket No. 08-0533.1 There is not presently any local union 

presence at Imperial’s Port Wentworth facility. Therefore, the union cannot make such an 

election in Docket No. 08-1104, the Port Wentworth litigation. Interestingly, no mention is 

1 Although the union can elect party status in Docket No. 08-1195, it has not to date done so. 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 4 

made by Respondents as to whether, in context of the pending Motion, the Union was ever 

consulted, conferred with or even copied on the filing in order to determine whether the Union 

might be opposed to the proposed consolidation and/or whether consolidation might prejudice its 

rights or interests in such proceedings. Indeed, the Certificate of Service accompanying the 

Motion clearly indicates the Union was not served with the Motion. 

7. In sum, Complainant contends that there is an insufficient commonality of parties 

to warrant consolidation under Rule 2200.9. To the contrary, these cases reflect the very essence 

of uncommon parties and militate in favor of maintaining separate proceedings. 

B. There is insufficient commonality of issues of law or fact to warrant 

consolidation. 

8. Respondents are correct insofar as the Citations issued in both cases include some 

items based upon the same regulatory standards. However, without question the facts relating to 

specific items are unique in each instance. For instance, the specific area(s) of each facility 

relating to Citation items are different, the number and identity of exposed employees is 

different, the equipment, machinery, and systems at the Port Wentworth and Gramercy locations 

vary and, perhaps most significant, the supporting evidence (i.e., testimonial, documentary, 

photographic and/or other materials) is considerably different in each case. And not only is the 

qualitative difference in the foregoing compelling, but the shear quantity of such evidence 

likewise demands separate proceedings to avoid confusion, unnecessary delay, and potential 

prejudice to the parties as they present evidence unique to each case. 

 9. For example, OSHA’s inspection at the Gramercy facility resulted in a large 

number of photographs which, by either the articles depicted and/or their relationship to a 

particular Citation item, have absolutely nothing to do with the Port Wentworth inspection. 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 5 

However, while OSHA inspectors took hundreds of photographs of specific conditions at the 

Port Wentworth facility, major portions of that facility were destroyed by the explosions and 

fires on February 7, 2008. Thus, Complainant anticipates that numerous fact witnesses, 

including hourly and management employees who worked at Port Wentworth, may be called to 

testify regarding the nature of the working conditions as they existed before the catastrophe. 

Admittedly, certain questions of law will be uniformly addressed and consistently applied in both 

cases because of judicial review by the same administrative law judge (e.g. whether Respondents 

willfully violated the Act as alleged in multiple items in each Citation). Nonetheless, the 

underlying facts that will be introduced by the prosecution and/or defense as to whether 

Respondents were indifferent or consciously disregarded the Act will differ greatly in scope, 

nature, and number with respect to each facility. For example, the facts related to the Willful 

Citations at the facilities are different given that Respondents allegedly allowed violations at the 

Gramercy facility to continue unabated after the Port Wentworth explosion. 

10. The same also hold true for the serious violations issued in each case. A close 

review of the subject Citations confirms that there are many differently cited standards; hence, 

there will be a significant divergence of supporting fact witnesses and/or accompanying evidence 

that will be relied upon by the parties in these proceedings. For example, the Port Wentworth 

Citation alleges 51 Serious violations ranging from missing safety latches on hoist hooks, fall 

and trip hazards and lead paint exposure. The Gramercy case involved 49 Serious items with 

certain allegations addressing unguarded machines, Respondents’ failure to conduct hazard 

assessments, and lack of personal protective equipment. Clearly then, there is little commonality 

of factual and/or legal issues in regards to many of the Serious items in each case. 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 6 

 11. From a geographical and logistical perspective, the cases also should be kept 

separate. Should this Court order that these matters be consolidated, many legitimate logistical 

concerns will almost certainly arise, including, but not limited to, the length of hearing, the 

location of the hearing, the unwieldy number and order of witnesses, problematic evidentiary 

questions of relevance and admissibility, and post-hearing issues related to transcripts, briefing, 

and possible appeal. 

12. Commission Rule 2200.60 provides for a hearing location “that involves as little 

inconvenience and expense to the parties as is practicable.” If a single hearing for both cases is 

ordered to take place, it necessarily follows that a great number of persons, both governmental 

and Imperial personnel residing in the Gramercy and Port Wentworth areas, will be significantly 

burdened and inconvenienced as to time, travel and expense to attend or otherwise participate in 

the hearing. A single hearing will effectively preclude Complainant from presenting eye witness 

employee testimony in each of the cases and is contrary to Commission precedent. See

Bethlehem Steel Corp., 6 OSHC (BNA) 1912-13 (No. 77-2876, 1978) (hearing must be held as 

close to site of alleged violations as possible; location 50 miles away deemed too far). Further, 

given the distance between Gramercy, Louisiana and Port Wentworth, Georgia is approximately 

690 miles, there is no city where one hearing can be held where Complainant and/or 

Respondents can subpoena witnesses to testify and this Court can legally compel their 

appearance pursuant to Rule 2200.57 and Fed. R. Civ. P. 45. Complainant respectfully submits 

that little will be gained by such a consolidated approach, significant complications will 

necessarily arise, and prejudice will result. Instead, both logic and judicial economy suggest that 

two separate hearings occur in sequential order (i.e., the Port Wentworth case followed 

immediately or soon thereafter by the Gramercy case) at locations central to each matter. 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 7 

13. For the foregoing reasons, Complainant submits that there does not exist a 

commonality of fact or law issues to justify consolidation of these cases. 

C. There are no other special circumstances as justice or the administration of 

the Act require. 

14. Respondents cite several cases in which the Commission did determine that, for 

reasons particular to each matter, consolidation was appropriate under the applicable rule. 

Nevertheless, Complainant respectfully submits that these cases bear no meaningful resemblance 

to the present cases in character, content, or scope. 

15. Here, Complainant contends that the Port Wentworth and Gramercy cases are 

unique, entirely independent in nature, and that due regard must be given to case-specific 

distinctions including, but not limited to, the following: (1) the geographical and managerial 

separateness of the Port Wentworth and Gramercy locations; (2) the complexity of the standards 

and issues involved coupled with anticipated supporting facts for each; (3) the amount of 

proposed penalties in each case; (4) the distinct differences in the identity and number of fact 

witnesses for each case; (4) the breadth of documentary evidence that will be involved for each 

case; (5) the diverse legal representation for both Complainant and Respondents in each case; (6) 

the appearance as a party by the local union in only one matter relating to the Gramercy case; (7) 

the significant likelihood that these matters will, in fact, proceed to hearing on the merits; (8) the 

scheduling and location of oral discovery to be conducted in these matters; and (9) the 

unavoidable impact on and probable prejudice to each party (i.e., availability of fact witnesses, 

financial, time, travel, etc.) of a single hearing for both cases. 

16. Further, although Respondents state in conclusory fashion that they will be 

“prejudiced” if the matters are not consolidated, Respondents fail to state with any degree of 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 8 

particularity how and/or in what manner they will be prejudiced. In contrast, Complainant has 

set forth how it will be prejudiced by consolidation. Complainant contends that in light of the 

enumerated concerns set forth herein, the parties would be disproportionately prejudiced and 

valuable resources needlessly wasted if the cases were consolidated. 

 17. Consequently, in lieu of formal, Court-ordered consolidation under Rule 2200.9, 

Complainant submits that based upon the limited facial similarities between the two cases, more 

informal coordination and cooperation is favored and preferred. For example, oral and/or written 

discovery in these matters is quite likely to be time consuming and will generate a significant 

amount of documents, time investment by counsel for each party, a large number of depositions 

and potential disputes along the way. It is quite unnecessary for both parties’ counsel and 

representatives in the Gramercy case to be concerned with matters relating solely to the Port 

Wentworth case, and vice versa. Rather, the parties can by limited written agreement and/or 

under the direction of the Court specifically identify and depose those select individuals who by 

position or status will appear in both cases, e.g., some Imperial corporate personnel, expert 

witnesses, certain OSHA personnel, etc. The same agreements would also allow counsel for 

each party to determine when and/or how to share in the fruits of written discovery. 

III. Conclusion

 18. Because there do not exist within the spirit and meaning of Rule 2200.9 common 

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

administration of the Act requires, Complainant contends that Respondents’ Motion for 

Consolidation is wholly without merit and that it should in all be denied. 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 9 

Respectfully Submitted, 

CAROL A. DE DEO 

Deputy Solicitor for National Operations 

STANLEY E. KEEN 

Regional Solicitor 

SHARON D. CALHOUN 

Counsel for Occupational Safety and 

Health 

By: 

/s/ Karen E. Mock

KAREN E. MOCK 

Senior Trial Attorney 

ANGELA DONALDSON 

Trial Attorney 

U. S. Department of Labor 

Office of the Solicitor 

61 Forsyth Street, SW, Room 7T10 

Atlanta GA 30303 

Telephone: (404) 302-5435 

Facsimile: (404) 302-5438 

Attorneys for Complainant 

Docket No. 08-1104 

CAROL A. DE DEO 

Deputy Solicitor for National Operations 

JANICE L. HOLMES 

Acting Regional Solicitor 

MADELEINE T. LE 

Counsel for Occupational Safety and 

Health 

By: 

/s/ Michael D. Schoen

MICHAEL D. SCHOEN 

Senior Trial Attorney 

MATTHEW P. SALLUSTI 

Trial Attorney 

U. S. Department of Labor 

Office of the Solicitor 

525 Griffin Street, Suite 501 

Dallas, Texas 75202 

Telephone: (972) 850-3145 

Facsimile: (972) 850-3101 

Attorneys for Complainant 

Docket Nos. 08-0533 and 08-1195 
Complainant’s Response to Respondents’ Motion to Consolidate – Page 10 

CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of February, 2009, a true and correct copy of the 

foregoing Complainant’s Response to Respondents’ Motion to Consolidate was served upon the 

attorney of record, all parties or party representatives in the above entitled and numbered cause 

via regular, first class mail and or via email in accordance with applicable rules of procedure and 

by order of Administrative Law Judge Covette Rooney, to: 

Mr. Charles H. Morgan Via Email 

Mr. Matthew J. Gilligan 

Alston & Bird, LLP 

1201 West Peachtree Street 

Atlanta, GA 30309-3424 

Mr. Patrick J. Veters, Esq. Via Email 

Ms. Jane H. Heidingsfelder 

Jones, Walker, Waechter, 

 Poitevent, Carrere & Denegre 

201 St. Charles Avenue, 47th Floor 

New Orleans, Louisiana 70170 

Robyn Robbins Via Email 

Associate Director 

Occupational Safety and Health Office 

United Food and Commercial Workers International Union 

1775 K Street 

Washington, D.C. 20006 

Lloyd Kliebert Via Regular First Class Mail 

Local 1167-P 

United Food & Commercial Workers International Union 

P.O. Box 520 

Gramercy, Louisiana 70052 

 /s/ Michael D. Schoen

Michael D. Schoen 
UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

Secretary of Labor, ) 

United States Department of Labor ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket No. 08-1104 

v. ) 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL- ) 

SAVANNAH, L.P., ) 

and its successors ) OSHA Inspection No. 310988712 

 ) 

 Respondents. ) 

and 

Secretary of Labor, ) 

United States Department of Labor ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket Nos. 08-1195 

v. ) 08-0533 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL ) 

SAVANNAH, L.P.; IMPERIAL DISTRIBUTION, ) 

INC., and its successors ) OSHA Inspection No. 311522858 

 ) 

 Respondents, ) 

 ) 

UFCW, LOCAL 1167-P, ) 

 ) 

 Authorized Employee ) 

 Representative ) 

ORDER ON RESPONDENTS’ MOTION TO CONSOLIDATE 

The Court, having considered Respondents’ Motion to Consolidate (“Motion”), 

Complainant’s Response thereto, and all papers and records on file in each of the above-styled 

matters, is of the opinion that Respondents’ Motion is not well-taken and should in all things be 

DENIED. 

Order on Respondents’ Motion to Consolidate – Page 1
Order on Respondents’ Motion to Consolidate – Page 2

It is therefore, ORDERED that OSHRC Docket No. 08-1104 shall remain separately 

docketed from OSHRC Docket Nos. 08-0533 and 08-1195. This Order does not prevent or 

preclude the parties in either case from reaching agreements to participate in, or otherwise share 

in matters of written and/or oral discovery. 

Signed on this _____ day of _____________, 2009. 

 

 _______________________ 

 Administrative Law Judge 

 Covette Rooney