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 TO DISMISS 

CITATION 2, ITEMS 4 THROUGH 15

Complainant, Secretary of Labor, hereby responds to Respondents’ Motion to 

Dismiss (hereinafter “Motion” or “Motion to Dismiss”) Citation 2, Items 4 through 15, 

which Respondents filed pursuant to Rule 2200.2(b) of the Occupational Safety and 

Health Review Commission ("the Commission"), 29 C.F.R. § 2200.2(b), Federal Rules of 

Civil Procedure 12(b)(6) and (c), Section 9(a) of the Occupational Safety and Health Act 

of 1970, 29 U.S.C. § 658(a), and applicable regulations, 29 C.F.R. § 1903.14(b). 

Respondents move to dismiss Citation 2, Items 4(a) through 15(b), which allege 

violations of the Occupational Safety and Health Administration's (hereinafter “OSHA”) 

housekeeping standards at 29 C.F.R. § 1910.22(a)(1) and (a)(2). The Citation Items 

allege that Respondents permitted hazardous accumulations of combustible dust to exist 

in twelve separate work locations1

 on or around February 7, 2008, at their sugar refinery 

 

1

 Specifically, the locations identified in the Citation Items are: (1) North Packaging 

Building, Bosch Side First Floor; (2) North Packaging Building, Bosch Side Second 

Floor; (3) Packaging Building – Top of Silos #’s 1, 2, and 3 at the Ninth Floor; (4) South 

Packaging Building, Fifth Floor Production Hummer Room; (5) South Packaging 

Building – First Floor; (6) South Packaging Building – Second Floor (bulk and 
and packing houses. (See Citation 2, Items 4(a) through 15(b), attached to the 

Complaint). 

Dismissal on the pleadings is disfavored by the Commission and should be 

granted only where evidence supporting dismissal is uncontrovertible, which is not the 

case here. Also, Respondents’ Motion is untimely. Complainant also herein shows that 

the allegations set forth in Citation 2, Items 4(a) through 15(b), do not lack particularity 

as required by the Occupational Safety and Health Act (hereinafter “the Act”), 

regulations, and Commission rules. Commission precedent establishes that allegations of 

hazardous combustible dust accumulations, such as sugar dust and cornstarch 

accumulations at issue here, are properly alleged as violations of the housekeeping 

standards at 29 C.F.R. § 1910.22(a)(1) and (2). Complainant’s allegations mirror the 

language of the housekeeping standards referenced in the citation items at issue. To the 

extent that Respondents contend that they were not provided fair notice of the 

requirements of 29 C.F.R. § 1910.22(a)(1) and (2), resolution of such an issue must be 

made on the facts of this case and thus, cannot be adjudicated solely on the pleadings. 

Complainant submits that Respondents’ Motion should be denied for all of these reasons, 

as set forth in more detail below. 

I. Respondents’ Motion is Untimely and Dismissal on the 

Pleadings is Disfavored by the Commission. 

“Rule 12(b) of the Federal Rules of Civil Procedure applies because [the 

Commission does not] have a rule stating when particular defenses must be made.” 

 

granulated packaging areas); (7) South Packaging Building – West side of Third Floor; 

(8) South Packaging Building Fourth Floor Powder Mill Room; (9) Bottom of Silos 1, 2, 

and 3 (Tunnel); (10) Cornstarch Silo; (11) “J” Bin Truck Loading; and (12) Raw Sugar 

Warehouse #1, “B” Bin, South and North sides. 

2
Secretary v. Amory Cotton Oil Company, 3 O.S.H. Cas. (BNA) 1895 (Docket No. 10330, 

1976). The Commission has recognized that “Rule 12(b), in pertinent part, provides that 

‘[e]very defense, in law or fact, to a claim for relief . . . shall be asserted in the 

responsive pleading thereto [the answer] . . . except that the following defenses may at 

the option of the pleader be made by motion . . . (6) failure to state a claim upon which 

relief can be granted . . . A motion making any of these defenses shall be made before 

pleading if a further pleading [the answer] is permitted.’” Id. (Emphasis and 

parenthetical information supplied in Amory). Thus, the Commission has noted, 

“Clearly, a motion to dismiss for failure to state a claim should be made before an answer 

to the complaint is filed or it should be made in the answer.” Id. (finding that motion to 

dismiss filed after the answer was untimely); see also 29 C.F.R. § 2200.40 (noting that a 

motion may be filed in lieu of an answer). Respondents answered the Complaint on 

October 6, 2008. They filed the instant Motion to Dismiss on January 27, 2009. Their 

Motion is untimely. 

Further, dismissal on the pleadings is disfavored by the Commission. See

Secretary v. Del Monte Corp., 4 O.S.H. Cas. (BNA) 2035 (Docket No. 11865, 1977) 

(reversing the Administrative Law Judge’s grant of dismissal on the pleadings, where 

respondent alleged a lack of particularity in the citation and complaint). In Del Monte, the 

Commission noted that dismissal was inappropriate because “it did not yet appear beyond 

a reasonable doubt that the Secretary can prove no set of facts in support of his claim,” 

noting that discovery may reveal such facts. Id.; see also Secretary v. Meadows 

Industries, Inc., 7 O.S.H. Cas. (BNA) 1709 (Docket No. 76-1463, 1979) (“Even if we 

were to find that the citation was not sufficiently particular, dismissal of the complaint 

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would not be proper. Lack of particularity in a citation may be cured at the hearing.”); 

Secretary v. Berg Lumber Co., 13 O.S.H. Cas. (BNA) 1822 (Docket No. 87-0397, 1988) 

(holding that the “purpose of the particularity requirement may be fulfilled and any 

defects in notice cured by additional information provided during the pleadings, 

discovery and hearing stages of the proceedings.”). 

As set forth in more detail below, Complainant denies that the allegations lack 

particularity and shows the Court that the Complaint tracks the language of the standards 

at issue, meets all applicable pleading requirements, and Respondents seek to impose on 

the Complainant a burden of pleading that does not appear in the Act, the regulations, 

Commission rules, or other legal authority. Even so, Respondents also have not shown, 

and cannot show, that the Secretary “can prove no set of facts” throughout the pleadings, 

discovery and hearing stages of the proceeding, in support of the alleged housekeeping 

violations. See Del Monte, supra. Therefore, this is not the rare case in which dismissal 

on the pleadings would be appropriate. 

II. 29 C.F.R. § 1910.22(a) Applies to Allegations of Combustible 

Dust Accumulation. 

As noted above, Complainant issued twelve willful per-instance citation items 

alleging violations of Subparts 1 and 2 of 29 C.F.R. § 1910.22(a), citing hazardous 

accumulations of dust, including sugar dust and cornstarch, as violations of the 

housekeeping standards’ requirements that places of employment and workroom floors 

be kept clean, orderly, and in sanitary condition. Beginning in the early eighties, the 

courts and the Commission recognized that the housekeeping standards applied to 

combustible dust hazards. See Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 

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1981)2

; Con Agra, Inc., v. OSHRC, 672 F.2d 699, 702 (8th Cir. 1982); Secretary v. 

Farmers Cooperative Grain and Supply Co., 10 O.S.H. Cas. (BNA) 2086 (Docket No. 79-

1177, 1982) (noting that the Bunge Court “explicitly held that the standard applies to fire 

and explosion hazards resulting from excessive grain dust accumulations.”). 

 In Bunge, the Fifth Circuit recognized that Section 1910.22(a)(1) applies to 

explosion hazards due to combustible dust accumulations. See Bunge, 638 F.2d at 833. 

The employer, Bunge Corporation, one of the world’s largest grain handlers, owned and 

operated over one hundred grain elevators in the United States, and at one location in 

Louisiana, it handled over 1 million bushels of grain daily and generated approximately 

59 tons of grain dust each day. Id. at 833. Some of the dust particles were suspended in 

the air, while other dust particles settled on “ledges, stairs, floors, machinery, and other 

surfaces throughout the grain elevator.” Id. Bunge maintained dust control systems and 

also employed manual clean-up activities for dust not reached by the vacuums. Id. As a 

result of an OSHA inspection, Bunge was issued a citation for a willful violation of 

Section 1910.22(a)(1), which listed 42 locations where dust grain had accumulated. Id. 

 Bunge argued that the housekeeping standard was “impermissibly expanded to 

include fire and explosion hazards instead of, for example, tripping and slipping 

hazards.” Id. at 834. According to the Court, “[t]he type of hazard, however, is 

irrelevant to whether some condition or practice constitutes a violation of this regulation. 

Unless the general standard incorporates a hazard as a violative element, the proscribed 

condition or practice is all that the Secretary must show; hazard is presumed and is 

 

2 The Bunge opinion was issued by the Fifth Circuit on March 5, 1981. 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).

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relevant only to whether the violation constitutes a ‘serious’ one.” Id. The Court 

concluded that the grain “dust accumulations were properly cited as an unclean condition 

in violation of the housekeeping regulation.” Id.; see also Con Agra, 672 F.2d at 702 

(citing favorably to Bunge and holding that 29 C.F.R. § 1910.22(a)(1) is applicable to 

dust explosion hazards). 

The Commission has approved of the holding in Bunge and also held that Section 

1910.22(a) applies to accumulations of combustible dust and dust explosion hazards. See

Secretary v. Farmers Cooperative Grain and Supply Co., 10 O.S.H. Cas. (BNA) 2086 

(Docket No. 79-1177, 1982) (following the Fifth Circuit’s holding in Bunge, the 

Commission recognized the applicability of 29 CFR § 1910.22(a) to combustible dust 

hazards, as opposed to § 5(a)(1) of the Act); cf. Cincinnati Gas & Electric Company, 

2002 O.S.H.D. (CCH) ¶ 32622 (Docket No. 01-0711, 2005) (finding OSHA’S Power 

Generation Standard at 29 C.F.R. § 1910.269, which specifically addresses coal dust 

explosion hazards, to be applicable to a power generation facility, as opposed to the more 

general housekeeping provisions of § 1910.22, while noting that § 1910.22(a)(1) could 

apply to secondary explosion hazards if distinct from hazards related to coal dust). 

Like the accumulation of combustible dust in Bunge, Con Agra, and Commission 

precedent approving Bunge’s holding, the accumulation of combustible sugar dust in the 

present case may be properly cited as a violation of 29 C.F.R. § 1910.22(a)(1) and (2). 

As recognized in Bunge, dust accumulations may be cited as a condition that is not clean, 

orderly and/or sanitary, in violation of this regulation. See 638 F.2d at 834. The 

Secretary is not required to allege or prove a particular type of hazard to establish a 

violation of the standard. Rather, the unclean condition or practice constitutes the 

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violation. Id. If the evidence establishes that the condition was, in fact, not clean, 

orderly, or sanitary, what remains to be established is whether the violation constitutes a 

“serious,” “willful,” “repeat,” “other than serious,” or “de minimis” violation. See id. 

Issues of whether the conditions cited were clean, orderly or sanitary, and the 

characterization of the violations are evidentiary matters and not appropriate for 

adjudication on the pleadings. In the present case, such factual issues for resolution 

include cited conditions involving significant accumulations of sugar dust. (See e.g., 

Affidavit of Michael L. Marshall and photographs, attached hereto as Exhibit “A.”) 

Based on their Motion, Respondents would have this court believe they had no 

idea the housekeeping standards could be applied to require them to clean up hazardous 

accumulations of combustible sugar dust. To the contrary, Respondents were aware of 

the applicability of 29 C.F.R. § 1910.22 to combustible dust accumulations, prior to the 

February 7, 2008, explosion at its Port Wentworth, Georgia, facility. (See Exhibit “B,” 

attached hereto (November 30, 2007 email from Doug Sykes, Respondents’ Corporate 

Safety Manager, to Deborah Haban, Director of Human Resources Services, re “OSHA 

National Emphasis Program for facilities that produce combustible dust” with NEP 

attached)). Specifically, Respondents were aware of OSHA’s National Emphasis 

Program effective October 18, 2007, addressing combustible dust hazards and the 

applicability of certain standards, including 29 C.F.R. § 1910.22(a)(1) and (2). (See id.). 

Prior to the February 7, 2008, incident that gave rise to these citations, Respondents knew 

that “where ... combustible dust accumulations not contained within dust control systems 

or other containers, such as storage bins, are extensive enough to pose a deflagration, 

explosion, or other fire hazard, then citations under 29 CFR 1910.22 (housekeeping) ... 

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may generally be issued.” (See id.). Accordingly, the housekeeping standards apply to 

the combustible dust conditions cited here, and Respondents were on notice of same. 

III. The Complaint Satisfies All Pleading Requirements. 

A. The Complaint describes with particularity the nature of 

the violations. 

Section 9(a) of the Act provides that “[e]ach citation shall be in writing and shall 

describe with particularity the nature of the violation, including a reference to the 

provision of the chapter, standard, rule, regulation, or order alleged to have been violated. 

In addition, the citation shall fix a reasonable time for the abatement of the violation.” 29 

U.S.C. § 658(a); see also 29 C.F.R. § 1903.14(b) (same). 

Pursuant to Commission Rule 2200.34(a)(2), 

The Complaint shall set forth all alleged violations and 

proposed penalties which are contested, stating with 

particularity: 

(i) The basis for jurisdiction; 

(ii) The time, location, place, and circumstances of each 

alleged violation; and 

(iii) The considerations upon which the period for 

abatement and the proposed penalty of each such 

alleged violation are based. 

29 C.F.R. § 2200.34(a)(2). The citation “must be drafted with sufficient particularity to 

inform the employer of what [it] did wrong, i.e., to apprise reasonably the employer of 

the issues in controversy.” Brock v. Dow Chemical, 801 F.2d 926, 930 (7th Cir.1986). 

The particularity requirement of the Act does not require that a citation state the elements 

of a cause of action or “that an employer be informed with particularity of how [it] must 

abate a hazardous condition.” Del Monte, 4 O.S.H. Cas. (BNA) at 2037 (emphasis in 

original). The Commission expressly “eliminated fact pleading and instituted notice 

8
pleading at the complaint and answer stage.” See 57 FR 41676-01 at pp. 41676 and 

41678-79 (Sept. 11, 1992) (amendments to 29 C.F.R. § 2200.34). 

 Respondents do not contend in their Motion that Citation 2, Items 4(a) through 

15(b) failed to set forth the jurisdictional basis, the time, location, place and 

circumstances of each alleged violation, and/or the considerations for the abatement 

period and proposed penalties. The citations at issue do, in fact, describe with 

particularity the nature of the alleged violations, as required under the Act, the 

regulations, and Commission rules. The citation items set forth the time of the alleged 

violations (on or about February 7, 2008), the place and circumstances of each alleged 

violation (the accumulations of combustible dust, including sugar dust and cornstarch, at 

elevated surfaces and workroom floors specifically identified in the citations), the 

considerations for the abatement period, and the proposed penalties for each item. (See

Citation 2, Items 4(a) through 15(b), attached to Complaint). 

 Respondents argue that the citations lack specificity because they do not define 

what is a “hazardous accumulation” of sugar dust and would have the Complainant “state 

with particularity the level or levels of sugar dust it contends violates” the housekeeping 

standards, purportedly to satisfy pleading requirements. (Respondents’ Motion, pp. 2, 8). 

It is sufficient to allege an accumulation of dust as a condition that is not orderly, clean or 

sanitary, in order to allege a violation of the housekeeping standards. See Bunge and 

discussion, supra. 

A comparison of the housekeeping standards and the citation items at issue 

demonstrates that the citations properly allege that “place(s) of employment . . . are not 

kept clean and orderly and in a sanitary condition” and that “floor(s) of workroom(s) are 

9
not maintained in a sanitary condition,” which tracks the language of 29 C.F.R. 

1910.22(a)(1) and (a)(2). (See Citation 2, Items 4(a) through 15(b), attached to 

Complaint). As noted above, the Complainant further identifies the time, location, place 

and circumstances of each alleged violation. No more is required of Complainant. 

Respondents seek to have Complainant provide a definition that is not present in the 

standards cited, contending that Complaint must provide an “objective, reasonable 

definition” of hazardous accumulation. As set forth in more detail below, Respondents 

thus improperly seek to create a pleading requirement that simply does not exist. (See

Section IV.C, pp. 12-14). Moreover, where the Citation tracks the language of the 

standard and alleges that the employer’s conduct fails to comply with the cited provisions 

of the standard, the Commission has held that the pleadings were drafted with sufficient 

particularity to provide notice to the employer of the issue in controversy. See L & L 

Painting, Co., Inc., 22 O.S.H. Cas. (BNA) 1346 (Docket No. 05-0050, 2008). 

To support their contentions regarding the particularity of pleadings, Respondents 

cite Secretary v. Thomas Indus. Coatings, Inc., 21 O.S.H. Cas. (BNA) 2283 (Docket No. 

05-1935, 2007), contending that an employer cannot be held in violation of the Act if it 

fails to receive prior notice of what is required. (Respondents’ Motion, p. 5). However, 

in Thomas Industries, the Commission nowhere addressed pleading requirements and 

cited only to Secretary v. Miami Indus., Inc., 15 O.S.H. Cas. (BNA) 1258, 1261-62 

(Docket No. 88-671, 1991), aff'd in part, set aside in part, 983 F.2d 1067 (6th Cir. 1993), 

when referencing whether notice was provided to the employer. The sole issue in Miami 

Industries was whether the employer was entitled to rely on prior statements and conduct 

by OSHA personnel indicating that certain machine guarding at issue was adequate. See 

10
Miami Industries, supra (“In addition to [the compliance officer’s] discussions with Fox 

[the employer’s industrial relations manager], in which he told Fox that a particular 

method of abatement was acceptable, [the compliance officer] asked for Miami's 

blueprints so that OSHA could use Miami's guarding design as a model for another 

company. Furthermore, the OSHA area office referred still another company to Miami.). 

The discussion of fair notice, thus, arose only in connection with the employer’s estoppel 

arguments and did not concern the content of the pleadings. 

 Also, Respondents erroneously cite Marshall v. B. W. Harrison Lumber Co., 569 

F.2d 1303, 1308 (5th Cir. 1978), to support their claim that the Complaint and Citation 

items lack particularity. Respondents are not the first to erroneously rely upon this case. 

As noted by the Commission in Secretary v. Gold Kist, Inc., 7 O.S.H. Cas. (BNA) 1855 

(Docket No. 76-2049, 1979), the B.W. Harrison decision “concerned only the issue of 

whether a prior uncontested citation was particular enough to be enforceable in a 

subsequent action for failure to abate the violation, not whether the citation should be 

vacated due to lack of particularity.” Gold Kist, supra (emphasis in original). According 

to the Commission in Gold Kist, the decision in B. W. Harrison is limited to whether the 

earlier citation was sufficiently particular to support a subsequent failure to abate action, 

and, in other situations where the challenge is to the citation being contested, “a 

deficiency, if any, in a complaint or citation can be cured by further pleadings or 

discovery, thus avoiding the extreme sanction of dismissal.” Id. Thus, Complainant has 

complied with all pleading requirements, and Respondents have cited no authority to the 

contrary. 

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B. The Twombly decision does not mandate dismissal. 

Respondents cite Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 U.S. 1955, 

1964 (2007), for the proposition that a complaint must “give the defendant fair notice of 

what the ... claim is.” (Respondents’ Motion, p. 4). As an initial matter, Complainant 

could find no Commission or other court precedent interpreting Twombly in the context 

of a citation or complaint under the Act, or holding that Twombly has any bearing on the 

pleading requirements under the Act, regulations, and Commission rules. Respondents 

cited to no such authority. 

Moreover, “Twombly leaves the longstanding fundamental of notice pleading 

intact.” Tooley v. Napolitano, 2009 WL 414593 (No. 07-5080) (D.C. Cir. Feb. 20, 2009) 

(citing Aktieselskabet Af 21. November 2001 v. Fame Jeans, 525 F.3d 8, 15 (D.C. Cir. 

2008)); see also 57 FR 41676-01, at p. 41676 (“[T]he Commission has eliminated fact 

pleading and instituted notice pleading at the complaint and answer stage.”). “So long as 

the pleadings suggest a ‘plausible’ scenario to ‘sho[w] that the pleader is entitled to 

relief,’ a court may not dismiss.’” Tooley, supra (citing Twombly, 127 S.Ct. at 1966). 

Further, at least one Commissioner has noted that that the statutory pleading requirements 

under the Act are “in sharp contrast” to the notice pleading permitted under Fed.R.Civ. P. 

8(a) as interpreted by Conley v. Gibson, 355 U.S. 41 (1957) prior to Twombly, and that 

the pleading requirements under the Act are less flexible than the notice pleading 

permitted under Conley. See Secretary v. Warnel Corp., 4 O.S.H. Cas. (BNA) 1034 

(Docket No. 4537, 1976) (Moran, in dissent). Twombly should not be read as requiring 

more of pleadings that comport with the Act and regulations under the Act. 

Further, the factual circumstances that gave rise to the holding in Twombly are 

12
not present here. The issue in Twombly was “what a plaintiff must plead in order to state 

a claim under § 1 of the Sherman Act,” and, generally, what constitutes a well-pleaded 

complaint for purposes of Federal Rule of Civil Procedure 8(a). See 127 U.S. at 1964. 

The Court held that a Sherman Act claim should allege “enough factual matter (taken as 

true) to suggest that an agreement was made,” because the “‘[t]he crucial question’” 

under § 1 of the Sherman Act “is whether the challenged anticompetitive conduct 

“stem[s] from independent decision or from an agreement, tacit or express.’” Id. at 1964-

65 (citation omitted). Unlike the citations at issue here, the Twombly complaint did not 

allege a “specific time, place or person involved in the alleged conspiracies,” such that 

anyone could have done anything at any location over a seven-year time span. See

Twombly, 127 U.S. at 1970-71 & n. 10. In Twombly, the Court also noted that the 

complaint did not allege facts supporting an element of the cause of action, i.e., facts 

plausibly suggesting a tacit or express agreement leading to anticompetitive conduct in 

violation of the Sherman Act. See 127 U.S. at 1964. However, the Commission has held 

that the particularity requirement of the Act does not require that a citation state the 

elements of a cause of action. See Del Monte, 4 O.S.H. Cas. (BNA) at 2037. 

Accordingly, the Complaint in this matter fully complies with all pleading requirements 

and Twombly’s holding does not change this result. 

IV. The Housekeeping Standards At Issue Are Not Impermissibly 

Vague On Their Face, And Any Further Inquiry Into Their 

Constitutionality Is An Evidentiary Matter. 

Respondents essentially challenge the constitutionality of 29 C.F.R. § 

1910.22(a)(1) and (2), by claiming that they have not been provided fair notice of the 

housekeeping standards’ requirements. Respondents have improperly grafted this 

13
argument into a Motion to Dismiss on the pleadings. To the extent that Respondents 

challenge the constitutionality of 29 C.F.R. § 1910.22(a)(1) and (a)(2), their argument 

must fail because the Commission has held that the regulation is not unenforceably 

vague. See Secretary v. Plessy, Inc., 2 O.S.H. Cas. (BNA) 1302 (Docket No. 946, 1974). 

Further, courts have held that a standard should not be evaluated for vagueness 

solely by its own terms, but instead the standard should be considered as it applies to the 

facts of the case. See Secretary v. CDI Contractors, Inc., 15 O.S.H. Cas. (BNA) 2223 

(Docket No. 91-1987, 1992) (“In order for [respondent] to succeed on its vagueness 

argument, it must demonstrate that the law is impermissibly vague in all of its 

applications.”) (citation omitted). The vagueness challenge “must be examined in light of 

the facts of the case at hand.” Id. (citations omitted); see also Bunge, 638 F.2d at 834 n. 4 

(noting that if respondent challenged the constitutionality of 29 C.F.R. § 1910.22(a)(1) as 

applied to combustible dust accumulations, the argument would fail in light of 

respondent’s actual knowledge of the cited condition and its obligations to clean the cited 

area). Factual matters relevant to the constitutionality of a standard include evidence of 

Respondents’ knowledge of the cited conditions and Respondents’ obligations 

concerning the conditions, practices of other employers in the industry, evidence of other 

accidents, and industry safety standards, guidelines, or recommendations. See CDI 

Contractors, Bunge, Trinity Industries, supra. Therefore, Respondents’ claims regarding 

the notice provided by the standard must be evaluated by applying the standard to the 

facts of this case, and the claims are not appropriate for judgment on the pleadings. 

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V. Conclusion 

For all of the reasons stated above, Respondents’ Motion to Dismiss should be 

denied. 

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 

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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 

Complainant’s Response to Respondents’ Motion to Dismiss, Supporting Affidavit, and 

Exhibit were 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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