UNITED STATES OF AMERICA 

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, ) OSHRC DOCKET NO. 

) 

Complainant, ) 08-1104 

) 

v. ) REGION IV 

) 

IMPERIAL SUGAR COMPANY, ) 

IMPERIAL-SAVANNAH, L.P., ) 

) 

 Respondents. ) 

COMPLAINANT’S RESPONSE TO RESPONDENTS’ MOTION 

FOR PARTIAL SUMMARY JUDGMENT

 Complainant, Secretary of Labor (“the Secretary”), hereby responds to Respondents’ 

Motion for Partial Summary Judgment (hereinafter “Motion”) as to instance description “a” of 

Citation 2, Item 2, and instance description “b” of Citation 2, Item 5, which Respondents filed 

pursuant to 29 C.F.R. § 2200.2(b) and Federal Rules of Civil Procedure 56. 

Motions for summary judgment should only be granted when there is no genuine issue of 

material fact, which is not the case here. The declaration and exhibits filed by Imperial Sugar 

Company and Imperial-Savannah, L.P. (collectively “Imperial”) to support its Motion are 

insufficient to establish there are no genuine issues of fact and that Imperial is entitled to 

judgment as a matter of law. Construing the facts alleged in the Citations and Notifications of 

Penalty, the Complaint, and the supporting declaration attached hereto in the light most favorable 

to the Secretary, must result in denial of summary judgment. The Secretary shows herein that 

genuine issues of material fact exist as to whether the sugar refining industry or Imperial knew of 

the fire and explosion hazards associated with bucket elevators used in their operations. 

Furthermore, summary judgment at this early stage of the proceedings, prior to the close of fact 
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discovery, is disfavored by the Occupational Safety and Health Review Commission (“the 

Commission”). The parties have just commenced fact discovery and are eleven (11) months 

away from completing all discovery. Thus, the Secretary submits that Imperial’s Motion should 

be denied for all of these reasons, as set forth in more detail below. 

I. Statement of Facts 

The Secretary’s Occupational Safety and Health Administration (“OSHA”) conducted an 

inspection of Imperial’s sugar refining facility located in Port Wentworth, Georgia following a 

catastrophic explosion on February 7, 2008. On July 25, 2008, OSHA issued to Imperial several 

citations alleging violations of Section 5(a)(1) of the Occupational Safety and Health Act (“the 

Act”), which imposes a “general duty” upon an employer to provide “employees employment 

and a place of employment which are free from recognized hazards that are causing or likely to 

cause death or serious physical harm....” 29 U.S.C. § 654(a). The Secretary alleges the bucket 

elevators in the South Packing House and Bosch Packing House, which are “used to convey 

granulated sugar[,] were not equipped with bearing temperature, belt alignment, and vibration 

detection monitors at the head and tail pulleys to shut down equipment and/or notify the operator 

before the initiation of a fire and/or explosion....” (See instance description “b” of Citation 1, 

Item 5, attached to the Complaint as Exhibit (“Ex.”) A (p. 9 of 156).) The Secretary also alleges 

these same bucket elevators “were not equipped with explosion relief venting to prevent 

secondary dust explosions and/or rupture of the elevator housing.” (See instance description “a” 

of Citation 2, Item 2, attached to the Complaint as Ex. B (p. 66 of 156).) The Secretary alleges 

these bucket elevators, which convey sugar and generate combustible dust, present recognized 

fire and explosion hazards and can result in serious injury or death to exposed employees. As 

evidence of one feasible method to abate these hazardous conditions, the Secretary referenced 
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the National Fire Protection Association (“NFPA”) 61 Standard for the Prevention of Fires and 

Dust Explosions in Agricultural and Food Processing Facilities 2008 and 2002 Editions (copy of 

2008 edition attached as Ex. “A”). NFPA 61 applies to facilities like Imperial’s that process 

sugar. Ex. A, p. 61-4. 

Annex A to NFPA 61 advises that “[a]ny time a combustible dust is processed or 

handled, a potential for explosion exists. The degree of explosion hazard will vary depending on 

the type of agricultural dust and processing methods used.” Ex. A, Annex, p. 61-17.1 An 

explosion can occur when combustible dust particles are in suspension at a concentration above 

the minimum explosive limit in a confined space and an ignition source is present. Id. The 

stated purpose of NFPA 61 is “to prescribe requirements for safety to life and property from fire 

and explosion and to minimize the resulting damage if a fire or explosion occurs.” Ex. A, p. 61-

4. Prior to the fire and explosion that destroyed much of the facility, Imperial used bucket 

elevators to convey sugar through its production process. Several provisions of NFPA 61 may 

be applicable to Imperial’s operations. Chapter 7.4 Bucket Elevator Legs and corresponding 

sections of Annex A have several relevant provisions: 

7.4.1.5* Each leg shall be provided with a motion detector device that will cut off the 

power to the drive motor and actuate an alarm in the event the leg belt slows to 80 

percent of normal operating speed. Feed to the elevator leg by mechanical means shall be 

stopped or diverted. 

Exception: Legs that have either belt speeds below 2.5 m/sec (500 ft/min) or capacities 

less that 106m3

/hr (3750 ft 3/hr). 

 

1

 The introduction to NFPA 61 provides that “[a]n asterisk (*) following the number or letter 

designating a paragraph indicates that explanatory material on the paragraph can be found in 

Annex A.” (NFPA 61, 2008 Ed., p. 61-4). 
4

A.7.4.1.5 Belt alignment monitoring devices are recommended for all elevator legs. 

Bearing monitor systems are recommended for head, tail, and bend (knee) pulley 

bearings on elevator legs. 

7.4.1.10* Inside legs shall have bearing temperature or vibration detection, head pulley 

alignment, and belt alignment monitors at head and tail pulleys. 

Exception: Legs that have either belt speeds below 2.5 m/sec (500 ft/min) or capacities 

less that 106m3

/hr (3750 ft 3/hr). 

A. 7.4.1.10 This requirement is also desirable for outside legs. The exemption for 

106m3

/hr (3750 ft 3/hr) represents a processing rate of 3000 bushels/hr. This exemption is 

based on reports that low belt speeds with large buckets substantially reduce dust 

concentrations. 

7.4.3.3* Legs or portions of legs that are located inside shall have the maximum 

practicable explosion relief area through the roof directly to the outside. 

Exception: Legs that have either belt speeds below 2.5 m/sec (500 ft/min) or capacities 

less that 106m3/hr (3750 ft 3/hr). 

A.7.4.3.3 The exemption for 106m3/hr (3750 ft 3/hr) represents a processing rate of 3000 

bushels/hr. This exemption is based on reports that low belt speeds with large buckets 

substantially reduce dust concentrations. 

Ex. A, pp. 61-8; Annex, p. 61-19 (italics in original). 

OSHA’s inspection of Imperial's facility disclosed that the bucket elevator located in the 

Bulk Sugar Station has explosion relief venting. However, the bucket elevators located in the 

South and Bosch Packing Houses did not have venting or the detection devices as prescribed by 

NFPA 61. See Declaration of Kurt Petermeyer, ¶17, attached as Ex. “B.” For the first time, in 

its Motion for Partial Summary Judgment, Imperial asserts that the bucket elevators used at the 

facility do not run at speeds greater than 500 feet per minute (“FPM”) and fit within the 

exceptions to certain sections of NFPA 61 noted above. (Respondents’ Memorandum of Law in 

Support of Their Motion for Partial Summary Judgment (“Memorandum”) at p. 3; Declaration of 

Dwayne Zeigler, ¶6.) In his sworn interview with OSHA taken May 29, 2008, Zeigler stated he 
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did not know the speed of the bucket elevators in the packing house. See Sworn Statement of 

Dwayne Zeigler, p. 157, excerpt attached as Ex. “C.” The Secretary has not yet had the 

opportunity to evaluate or conduct further discovery into the nature of this contention because 

this is a new claim that Imperial never raised during months of investigation and initial 

discovery. As discussed below, the Motion should be denied because Imperial’s declaration and 

exhibits do not establish a lack of genuine issues of fact with respect to the bucket elevators. 

II. Respondents’ Motion For Summary Judgment Should Be Denied 

Because Material Facts Are In Dispute. 

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, made applicable to 

Commission proceedings by 29 C.F.R. 2200.2(b), a motion for summary judgment may not be 

granted unless there is no genuine issue as to any material fact and the moving party is entitled to 

judgment as a matter of law. Imperial bears the burden of establishing the “absence of a genuine 

issue as to any material fact” and, for purposes of its Motion, the facts “must be viewed in the 

light most favorable” to the Secretary. Any doubt as to the truth of the facts at issue must be 

construed in the Secretary’s favor. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598 

(1970). 

 Imperial moves for partial summary judgment and to vacate two citations alleging that 

Imperial violated the General Duty Clause by failing to protect employees from known fire and 

explosion hazards associated with the bucket elevators on the ground that the Secretary “cannot 

establish the basic, threshold requirement of a violation of the General Duty Clause – the 

existence of a recognized hazard . . .” (Memorandum at p. 5.) In support of this assertion, 

Imperial claims that all bucket elevators in the packing houses move at less than 500 FPM and 

are exempt from the detection devices and explosion venting requirements of NFPA 61. 
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 As an initial matter, Imperial fails to introduce any evidence of what the industry 

standard is. Imperial states, “[t]o the extent Complainant contends NFPA 61 is an industry 

standard providing the basis for recognition of the purported hazards. . . ,” the standard exempts 

Imperial’s bucket elevators. (Memorandum at p. 6.)2

 This is not evidence of industry 

recognition of the standard. It is not even proof that OSHA considers NFPA 61 (and only NFPA 

61) the applicable standard. Imperial is not alleging that NFPA 61 is the industry standard 

governing control of combustible dust hazards in bucket elevators. Nor does it claim that it 

recognizes NFPA 61 (and only this standard) as the applicable standard. The recognition 

element of the general duty clause necessarily requires evidence of the state of knowledge of the 

industry or Imperial. The record here is simply devoid of proof on the state of that knowledge. 

Imperial cannot take advantage of an exemption of a standard that it does not recognize. In 

short, Imperial has not produced evidence sufficient to make even a prima facie showing that the 

citations should be vacated on the ground that there is no recognized hazard. (Memorandum at p. 

5.) 

 If, however, Imperial is making the bare and unproven assertion that the slow FPM 

language in NFPA 61 demonstrates that neither it nor the sugar refining industry recognize the 

fire and explosion hazards of bucket elevators regardless of the speed at which they move, its 

contention is not supported by its thin declaration and exhibits, and should be rejected 

summarily. Books, scientific articles, and elevator manufacturer information discuss the 

combustible dust hazards associated with bucket elevators. See Ex. B, Petermeyer Declaration, 

¶16. In fact, a simple Internet search on Google using key words “sugar elevator dust explosion” 

 

2

 The citation made no such representation. NFPA 61 was cited as reflecting a method of 

abatement. See Complaint Ex. A, p. 9, and Ex. B, p. 66.
7

generates documents dated before the explosion at Imperial’s facility which discuss dust 

explosions in bucket elevators. Thus, Imperial’s Motion should be rejected and the Secretary 

should be permitted to discover how others in Imperial’s industry interpret and apply the NFPA 

to bucket elevators. Many issues are raised by the NFPA exemption language, including: 

whether the purported low speeds of Imperial’s bucket elevators are associated with 

“substantially reduce[d] dust concentrations” because if not, the exemption would not apply. 

See, e.g., Ex. A, pp. 61-8; p. 61-19, Annex sec. A.7.4.3.3. 

A. A Genuine Issue Of Material Fact Exists Regarding Whether The 

Sugar Refining Industry Knew That Bucket Elevators Present 

Fire And/Or Explosion Hazards. 

 Imperial is apparently arguing that the low belt speed exception to NFPA 61 Chapters 

7.4.1.5 and 7.4.1.10 implies that the industry does not recognize a fire or explosion hazard for 

bucket elevators that run at less than 500 FPM. This interpretation is illogical and unsupported 

by NFPA 61 itself, and is a proper basis for denial of the Motion. NFPA 61 exists exactly 

because equipment, including a bucket elevator, which conveys combustible “agricultural dust” 

has the potential to explode under certain circumstances. See Ex. A, p. 61-17 Annex sec. A.3.3.1. 

As noted in the Annex to Chapter 7.4 Bucket Elevator Legs, the exemption for equipment 

operating at lower speeds is based on findings that “low belt speeds with large buckets 

substantially reduce dust concentrations.” See Ex. A, p. 61-19 (emphasis added). Annex A does 

not state that the reports concluded dust concentrations and the corresponding fire and explosion 

hazards were eliminated. NFPA 61 does not define “large buckets.” Moreover, the standard’s 

recommendations are predicated upon the types of agricultural products and processing 

equipment used. See Ex. A, p. 61-17 Annex sec. A.3.3.1.) It may be that old, poorly maintained 

bucket elevators constructed of metal capable of producing sparks pose hazards regardless of the 
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speed at which they run. Sugar dust may pose more of a hazard because it is fine and sieves out 

as the buckets lift the sugar to the top of the elevator, filling the elevator with combustible dust 

and posing explosion hazards, again, regardless of the speed. The sugar refining industry’s 

knowledge of hazards posed by bucket elevators of the type used at Imperial’s facility is a factual 

issue that should be explored in discovery. Therefore, the exact nature of the hazards presented 

by Imperial’s bucket elevators is a genuine issue of material fact which precludes summary 

judgment. 

 Imperial’s focus on industry knowledge ignores that a 5(a)(1) violation may be 

established showing the employer had knowledge of the hazard. Even if the sugar refining 

industry may not recognize a hazard with slower-speed bucket elevators, summary judgment is 

not appropriate if Imperial knew of such a hazard. 

B. A Genuine Issue Of Material Fact Exists Regarding Whether 

Imperial Knew That Bucket Elevators Present Fire And/Or 

Explosion Hazards. 

 Imperial is well aware of the fire and explosion hazards associated with sugar. Its 

Material Safety Data Sheet (“MSDS”) for granulated sugar dated October 3, 2001 states “sugar 

dust accumulations are explosive.” See MSDS for granulated sugar attached as Ex. “D.” 

OSHA’s inspection of the Port Wentworth facility disclosed that Imperial has experienced fires 

and explosions over the years in various pieces of equipment, including bucket elevators. See

Ex. B, Petermeyer Declaration, ¶12. Brian Harrison, Imperial’s former Vice President of 

Operations, testified to an explosion in a powder mill. See Sworn Statement of Brian Harrison, 

pp. 32-33, attached as Ex. “E.” Doug Sikes, Imperial’s Corporate Safety Manager, maintained a 

subscription to the NFPA and possessed a copy of NFPA 61. See Sworn Statement of Doug 
9

Sikes, p. 22-24, attached as Ex. “F.” In his interview, Sikes admitted that Imperial had had 

several incidents with fires in bucket elevators. Id., p. 213. 

 OSHA’s inspection disclosed that the East Packaging Production bucket elevator was 

located in an enclosure, a silo shaft, just east of Silo 1. This elevator conveyed sugar from the 

conveyor belt underneath the silos to the top of the silos. According to interviews with 

employees, there were times when the metal buckets detached from the belt and would strike the 

housing while the belt continued to rotate. See Sworn Statement of Donny Bryan, pp. 180-182, 

attached as Ex. “G.” If a bucket detached, it could spill sugar and generate fine dust particles 

(“fugitive dust”). Ex. B, Petermeyer Declaration, ¶9, 13. The bucket elevators were composed 

of steel, which can strike sparks, presenting an ignition source for combustible sugar dust. See

Ex. D, Harrison Statement, pp. 152-153. This bucket elevator was not equipped with detection 

devices or explosion relief venting. In contrast, the bucket elevator located in the Bulk Sugar 

Station did have explosion relief venting. Ex. B, Petermeyer Declaration, ¶19. The fact that this 

bucket elevator had explosion relief venting raises the inference that Imperial recognized that 

there was an explosion hazard even at the slower speeds. Furthermore, at Imperial’s refinery in 

Gramercy, Louisiana, the bucket elevator to the silo has explosion panels. See Ex. D, Harrison 

Statement, pp. 96-98. These facts support the Secretary’s contention that Imperial knew bucket 

elevators posed known fire and explosion hazards. To the extent Imperial denies this assertion, 

then a genuine issue of material fact exists regarding whether Imperial knew bucket elevators 

posed fire and explosion hazards regardless of the speed of operation, and makes summary 

judgment on this issue inappropriate. 
10

C. The Declaration And Exhibits Are Insufficient To Grant 

Summary Judgment 

 Pursuant to Fed. R. Civ. P. 56(e)(1), an “affidavit must be made on personal knowledge, 

set out facts that would be admissible in evidence, and show that the affiant is competent to 

testify on the matters stated.” Imperial’s declaration and exhibits fail this test and should not be 

considered when ruling on the Motion. The Declaration of Dwayne Zeigler lacks specificity and 

fails to establish that he has personal knowledge of the assertions he makes. In his OSHA 

interview conducted less than nine (9) months ago, Zeigler had no idea the speed of the bucket 

elevators. Zeigler fails to explain the basis for his purported knowledge that “’[m]aintaining a 

proper belt speed of no more than 300-350 FPM for all bucket elevators was absolutely essential 

to our packing house operations.” (Zeigler Declaration, ¶5 (emphasis in original).) Now, he 

concludes that “sugar simply did not move properly” at higher speeds, without explaining why. 

Zeigler states that “’[t]o my knowledge” the bucket elevators were not designed to operate above 

500 FPM. The inclusion of this qualifying language in Zeigler’s declaration raises the question 

of whether other Imperial employees may know to the contrary and should be open to discovery. 

 Zeigler’s declaration does not properly authenticate the attached exhibits, and they should 

not be swept into evidence under the “business records” exception to the Hearsay Rule. See

F.R.E. 803(6). Exhibit A to Zeigler’s declaration only shows the belt speed for one elevator. 

Zeigler claims that Exhibit B is “generally representative” of bucket elevators Imperial uses, but 

he fails to state whether the Model C3 was even in use at the facility in February 2008. The 

Secretary has had no opportunity to conduct discovery regarding these recently disclosed 

documents or cross examine Imperial representatives regarding their contents. Many pages are 

unidentified and illegible, and Zeigler fails to tie them to specific pieces of equipment. Ex. B, 
11

Petermeyer Declaration, ¶22. Any doubt about the admissibility of these documents under the 

Federal Rules of Evidence should be resolved in favor of the Secretary and the Motion should be 

denied. 

III. Summary Judgment Is Inappropriate At This Early Stage In The 

Proceedings. 

 Rule 56(f) of the Federal Rules of Civil Procedure, made applicable to Commission 

proceedings by 29 C.F.R. 2200.2(b), provides “if a party opposing the motion shows by affidavit 

that, for specified reasons, it cannot present facts essential to justify its opposition” the motion 

may be denied or continued. Courts generally view motions for summary judgment early in the 

proceedings unfavorably, and will deny or defer ruling until the parties have completed 

discovery. “The party opposing a motion for summary judgment has a right to challenge the 

affidavits and other factual materials submitted in support of the motion by conducting sufficient 

discovery so as to enable him to determine whether he can furnish opposing affidavits.” Snook 

v. Trust Company of Georgia Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1988). Also, 

if this court vacates these Citations at this early stage, the Secretary would likely appeal. This 

would result in piecemeal adjudication, a result not looked upon favorably by the Commission. 

See Arco Chemical Co., 1991 O.S.H.D. (CCH) ¶29321 (Docket Nos. 88-2484 and 88-2567, 

1991); LTV Steel Company, 13 O.S.H. Cas. (BNA) 1090 (Docket No. 86-449-A, 1987). 

 Imperial’s Motion should be denied or ruling deferred until the Secretary has had a 

reasonable opportunity to conduct discovery into Imperial’s claims and defenses, including its 

contention first asserted here that its bucket elevators are exempt from the requirements of NFPA 

61. The exhibits to the Motion were not provided to OSHA during its inspection. Ex. B, 

Petermeyer Declaration, ¶21. OSHA inquired about bucket elevators and NFPA 61. However, 
12

Imperial’s representatives did not disclose the speed of the bucket elevators and never claimed 

that detection devices and explosion venting were not required based on the elevators’ speed. 

Furthermore, the bucket elevator located in the Bulk Sugar Station does have explosion venting, 

indicating Imperial may have considered it mandatory. Id., ¶¶11, 18, 19. The Secretary should 

have the opportunity to conduct discovery as to why Imperial chose to equip some elevators with 

protective devices in accordance with NFPA and not others. 

 During the inspection, when OSHA tried to obtain manuals and other documents about 

various pieces of equipment, including bucket elevators, Imperial directed inspectors to a room 

in the Administration Building. The file drawers were in complete disarray, drawers were 

mislabeled, and relevant documents could not be located. See Ex. B, Petermeyer Declaration, 

¶21. Thus, the Secretary should be given the opportunity, through discovery, to prepare an 

opposing affidavit in response to these recently disclosed exhibits. Jones v. City of Columbus, 

GA, 120 F.3d 248, 253 (11th Cir. 1997). 

 Pursuant to the Scheduling Order entered less than three (3) weeks ago, the parties have 

until November 27, 2009 to complete fact discovery. Imperial served its answers to the 

Secretary’s Interrogatories and Requests for Production of Documents on January 12, 2009, and 

produced approximately 200 pages of documents. The exhibits to the Motion were not produced 

at that time. The Secretary’s discovery asked for documents that Imperial relies upon to support 

its claims and defenses as well as its denial of the Secretary’s allegations set forth in the 

Complaint and Citations and Notifications of Penalty. Surely, these exhibits, and others like 

them, are responsive to such requests. If Imperial contends they are not responsive, the issue 

may be resolved through a motion to compel. The Secretary should be afforded the opportunity 

to review the exhibits and question Imperial regarding the contentions raised in the Motion in 
13

order to prepare an affidavit in response. Id. (“Generally summary judgment is inappropriate 

when the party opposing the motion has been unable to obtain responses to his discovery 

requests.”) (citations omitted). See also Parrish v. Board of Commissioners of Alabama State 

Bar, 533 F.2d 942, 948 (5th Cir. 1976) (summary judgment granted in error when production of 

documents through discovery not required)3

; Cowan v. J.C. Penney Co., 790 F.2d 1529, 1532 

(11th Cir. 1986) (summary judgment reversed when plaintiff had properly notified court that 

defendant’s discovery response was still outstanding); Carmona v. Toledo, 215 F.3d 124, 133, 

135 (1st Cir. 2000) (moving party’s discovery responses “appeared meager, untimely, and 

incomplete” and necessitated closer scrutiny before granting summary judgment). 

IV. Conclusion 

For all of the reasons stated above, Respondents’ Motion for Partial Summary Judgment 

should be denied. 

 

3 Decisions of the Fifth Circuit prior to September 30, 1981, are binding upon the Eleventh 

Circuit Court of Appeals. See Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en 

banc). 
14

Respectfully submitted, this 27th day of February, 2009. 

ADDRESS: CAROL DE DEO 

Deputy Solicitor of Labor 

Office of the Solicitor 

U. S. Department of Labor STANLEY E. KEEN 

61 Forsyth Street, S.W. Regional Solicitor 

Room 7T10 

Atlanta, GA 30303 SHARON D. CALHOUN 

 Counsel 

Telephone: 404/302-5435 

Facsimile: 404/302-5438 By: s/Karen E. Mock_______ 

Mock.karen@dol.gov KAREN E. MOCK 

Donaldson.angela@dol.gov Senior Trial Attorney 

ANGELA F. DONALDSON 

 Trial Attorney 

Attorneys for the Secretary of Labor 

SOL Case No. 08-60093 United States Department of Labor
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 

Complainant’s Response to Respondents’ Motion for Partial Summary Judgment was 

electronically served on February 27, 2009 on the following parties: 

Charles H. Morgan, Esq. 

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 

 s/Karen E. Mock_________

KAREN E. MOCK 

 Senior Trial Attorney 

SOL Case No. 08-60093

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