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 

DEPOSE OSHA COMPLIANCE OFFICERS 

Respondents have moved to depose certain compliance officers of the 

Occupational Safety and Health Administration (“OSHA”) and of Michigan and 

Maryland OSHA, which are “State plan” states.1 Complainant objects to Respondents’ 

Motion because Respondents have not shown that the information they seek from the 

depositions is relevant to the subject matter in this case, specifically the claims and 

defenses, and reasonably calculated to lead to the discovery of admissible evidence. See

Fed. R. Civ. P. 26(b)(1) and Commission Rule 2200.52(b). 

 Respondents contend that the depositions are needed (1) to authenticate records of 

inspections of other facilities2

, which Respondents obtained pursuant to Freedom of 

 

1

 Of the 15 depositions that Respondents seek to take, 10 are of Federal OSHA 

employees pursuant to Fed. R. Civ. P. 30(b)(6), 2 are of Maryland OSHA compliance 

officers identified by name, and 3 are of Michigan OSHA compliance officers identified 

by name. (Memorandum in Support of Respondents’ Motion to Depose OSHA 

Compliance Officers, pp. 1-2). 

 

2

 None of the facilities at issue were owned or operated by Respondents. 

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Information Act (“FOIA”) requests, and (2) to “obtain testimony regarding the actual 

conditions that existed during the underlying inspections.” (Memorandum in Support of 

Respondents’ Motion to Depose OSHA Compliance Officers (“Memorandum”), p. 4). 

Respondents claim in their Motion only that they intend to use the depositions to find out 

what was seen during the other inspections concerning “large dust accumulations,” 

whether the dust “was in fact combustible,” and the “level of the accumulation.” 

(Respondents’ Memorandum, p. 9). They claim that the compliance officers’ testimony 

is relevant to matters of industry practice. Complainant will stipulate to the authenticity 

of the records obtained pursuant to FOIA requests concerning inspections by Federal 

OSHA compliance officers, and anticipate that the State OSHA agencies will do the 

same. Therefore, the depositions of the compliance officers are not needed for purposes 

of authentication. As set forth below, the information sought by Respondents in the 

depositions is also not relevant to the claims or defenses in this matter. 

I. Respondents Actually Seek Information Concerning OSHA 

Enforcement Of Standards Related To Combustible Dust Hazards, 

Which Is Not Relevant To Claims Or Defenses In This Matter. 

In their Notice of Rule 30(b)(6) Deposition, Respondents seek the designation of 

one or more Federal OSHA employees to testify with respect to the following matters 

concerning inspections at other (non-Imperial) facilities: 

• “the specific physical conditions found and facts gathered at” the 

inspection 

• the authentication of documents in the inspection files 

• “the identities of all Complainant’s employees and agents who have 

conducted inspections of or otherwise entered the Location [of the 

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inspection] at any time since January 1, 2000, through the date of this 

Notice of Deposition” 

• “the identities of all of Complainant’s employees and agents who 

participated in, reviewed or approved the decision to issue the citations 

regarding the Location [of the inspection]” 

(See “Notice of Rule 30(b)(6) Deposition for Complainant” included in Exhibit B 

attached to Respondents’ Memorandum). 

In their Motion and Memorandum in Support, Respondents failed to alert the 

Commission to the third and fourth items listed above, namely, that they seek the 

identification of all OSHA employees and agents who conducted inspections at the 

facilities, or “otherwise entered” the locations, in question for more than 9 years, and they 

seek the identification of all OSHA employees who “participated in, reviewed or 

approved the decision” to issue citations related to the inspections. (Id.). There is 

absolutely no relationship between decisions to issue citations or the identities of OSHA 

employees who inspected or entered these locations over a 9-year period and 

Respondents’ claim that the depositions are intended to elicit information concerning 

industry practice. Respondents have not been forthcoming regarding the true purpose of 

the depositions that they seek. 

Respondents actually seek to depose OSHA compliance officers in connection 

with their claim that they did not have fair notice of how to comply with the standards at 

issue, specifically where combustible dust accumulations are related to the allegations. 

Respondents seek information concerning dust accumulations at other facilities inspected 

by Federal and State OSHA in order to compare the citations that were issued in such 

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instances with the citations that were issued in the present case. In fact, Respondents 

claim that Federal OSHA and State OSHA agencies “fail[ed] to recognize hazards related 

to [hazardous combustible dust] accumulations,” and they also cited Secretary v. Latite 

Roofing & Sheet Metal Co., 2005 O.S.H.D. (CCH) ¶ 32858 (Docket No. 02-0656, Sept. 

16, 2005), for the proposition that an OSHA “pattern of administrative enforcement” is 

relevant. (Respondents’ Memorandum, p. 3 and fn. 2 on p. 9). However, the evidence in 

Latite Roofing concerned a “lengthy and confusing” course of conduct between OSHA 

and the employer over several years, in which the employer sought OSHA’s advice on 

providing fall protection to its employees, was told that it should not request a variance 

but should develop an alternative plan, and then the employer was cited for failing to 

comply with fall protection standards where the employer had an alternative plan in 

place. The Commission found that the Secretary had given the employer the impression 

that the employer’s alternative plan would suffice, so the employer was found not to have 

fair notice at the time of the citation of a duty to implement the fall protection systems 

proposed by the Secretary, rather than its alternative plan. Therefore, the “pattern of 

enforcement” discussed in Latite Roofing concerned only the past interaction between 

OSHA and the sole employer at issue in that case. 

It is well-settled that OSHA’s failure to cite during previous inspections of an 

employer cannot support an employer’s lack of fair notice claim. Secretary v. Fluor 

Daniel, 19 O.S.H. Cases (BNA) 1528 (Docket Nos. 96-1729 & 96-1730, Sept. 21, 2001). 

Rather, the employer must show affirmative misconduct by OSHA toward the employer 

at issue, and that a serious injustice will result from the misconduct. See, e.g., Latite 

Roofing, supra; Fluor Daniel, supra; Secretary v. Miami Indus., Inc., 15 O.S.H. Cas. 

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(BNA) 1258, 1261-62 (Docket No. 88-671, 1991), aff'd in part, set aside in part, 983 F.2d 

1067 (6th Cir. 1993) (addressing the employer’s “estoppel” arguments, including 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 also Trinity Marine 

Nashville, Inc. v. OSHRC, 275 F.3d 423, 430 (5th Cir. 2001) (company had valid fair 

notice complaint if previously informed by OSHA inspector that its procedures or 

processes at issue were safe and satisfactory and company was later cited for the same 

procedures). 

Accordingly, any past conduct of OSHA that might be relevant to a “fair notice” 

complaint or estoppel argument would concern only OSHA’s previous interaction with, 

or communication with, Respondents. None of the depositions that Respondents seek 

concern any such past interaction or conduct; rather, Respondents seek the depositions of 

Federal and State OSHA personnel from different states and regions, who conducted 

inspections unrelated to Imperial or its any of its sites. Whether or not Federal or State 

OSHA cited conditions at other employers’ sites involves no facts relevant to the issues 

to be decided. 

II. Respondents Have Not Established That Testimony Of A Diverse 

Number Of Federal and State OSHA Compliance Officers 

Concerning A Limited Number Of Inspection Sites Is Relevant To 

Matters Of Industry Practice Or Custom. 

 To the extent that Respondents seek testimony concerning the “actual conditions” 

at the inspection sites, Respondents do not explain why authenticated photographs and 

records documenting the inspections and the observations of the compliance officers 

would not suffice to identify the conditions that existed at the times of the inspections. 

As noted above, Respondents claim that they intend to use the depositions to find out 

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what was seen during the other inspections concerning “large dust accumulations,” 

whether the dust “was in fact combustible,” and the “level of the accumulation.” 

(Respondents’ Memorandum, p. 9). Again, Respondents do not claim that the inspection 

records fail to provide this information. 

More importantly, Respondents fail to show how the testimony of various 

compliance officers concerning the existence of conditions at other sites, including levels 

of combustible accumulations, can demonstrate industry practice or custom, as such 

testimony does not address what the employers in the other inspections knew, or did not 

know, to be hazardous. Further, to the extent that Respondents seek to explore whether 

Federal OSHA and State OSHA agencies “fail[ed] to recognize hazards related to such 

accumulations,” any such inquiry concerns the deliberative, pre-decisional process that is 

protected by the “deliberative process” privilege, which Respondents acknowledge is not 

a permissible area of discovery. (See Respondents’ Memorandum, p. 4). Thus, the 

compliance officers may not be questioned concerning the pre-decisional process 

regarding whether to issue, or not issue, citations related to combustible dust 

accumulations. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 

44 L.Ed.2d 29 (1975) (discussing the “deliberative process” privilege’s protection against 

disclosure of opinions, recommendations, and deliberations comprising part of a process 

by which governmental decisions are formulated). 

 “Discussions among agency personnel about the relative merits of various 

positions . . . are as much a part of the deliberative process as the actual recommendations 

and advice agreed upon." Mead Data Central, Inc. v. Dep’t of Air Force, 566 F.2d 242, 

257 (D.C. Cir. 1977). The process of separating significant from insignificant facts 

6
requires the exercise of judgment by agency personnel and are privileged. Cofield v. City 

of LaGrange, GA, 913 F. Supp. 608, 615 (D.D.C. 1996). An employee’s analysis and 

evaluation of facts are clearly within the scope of the privilege. See Skelton v. Postal 

Service, 678 F.2d 35, 38 (5th Cir. 1978). As such, Respondents also may not ask the 

compliance officers whether in their view, the dust accumulations presented combustible 

dust hazards. 

The cases cited by Respondents—for the proposition that a compliance officer 

may testify concerning industry practice—concern the Secretary’s proffer of a 

compliance officer’s testimony about personal protective equipment (“PPE”) that had 

been observed in other places of employment. See Secretary v. Trinity Industries, Inc., 

15 O.S.H. Cas. (BNA) 1481 (Docket No. 88-2691, Jan. 23, 1992); Secretary v. Lukens 

Steel Co., 10 O.S.H. Cas. (BNA) 1115 (Docket No. 76-1053, Oct. 27, 1981). In Trinity 

Industries, a senior Compliance Officer, with 15 years of experience, testified that other 

manufacturers of storage tanks used certain types of PPE, including height adjustable 

catwalks or height adjustable bars or static lines, when its employees had to walk over 

cylindrical tanks before working on them. The Commission noted that the testimony was 

relevant to whether the Secretary could establish a violation of 29 C.F.R. 1910.132(a), 

regarding a failure to provide PPE. 

In Lukens Steel, the Compliance Officer, who had inspected over 50 steel 

producing facilities, testified concerning steel industry custom concerning the use of 

certain PPE to resist molten steel, including leggings, face shields, and asbestos or 

aluminized gloves. The Commission noted that evidence of industry practice or 

customary use of PPE, although not dispositive, may aid in determining whether a 

7
reasonable employer would perceive a hazard. In addition to the Compliance Officer’s 

testimony concerning other employers’ use of PPE, the Secretary in Lukens Steel also 

presented evidence of previous citations to the employer in that case, previous incidents 

involving that employer, and union activity related to that employer. The Commission 

further noted that it will examine an employer’s own understanding of the alleged hazard, 

and the employer’s practices, which may demonstrate that the employer perceived the 

hazard. 

As such, Trinity Industries and Lukens Steel both demonstrate that the Secretary

in meeting her burden of proof, may present the testimony of experienced compliance 

officers, who through specialized and/or extensive experience may testify about PPE 

observed in the industry. Similarly, in Secretary v. Keating Building, 21 O.S.H. Cas. 

(BNA) 1513 n. 3 (Docket No. 04-0774, Feb. 16, 2006), also cited by Respondents, the 

Secretary’s expert was not allowed to testify regarding current industry practice and 

custom in projects involving concrete, where during voir dire, the expert stated that for 

over a decade, his experience had been limited to technical design or deficiency issues 

and not industry practice. The expert in Keating Building stated he had no recent “hands 

on” involvement in an active concrete project, and thus he was not permitted to testify 

concerning current industry practice. The decisions in Trinity Industries, Lukens Steel, 

and Keating Building are consistent in allowing, on the question of industry practice, 

only the testimony of persons who are shown to a sufficient degree to be familiar with 

working conditions and practices within the industry at issue. 

Here, however, Respondents seek to depose a number of different compliance 

officers, chosen by Complainant, concerning the conditions at diverse inspection sites, 

8
and they seek to assemble this information allegedly to present evidence of industry 

practice or custom concerning combustible dust accumulations. This is not the manner in 

which a compliance officer’s testimony was permitted or deemed relevant in Trinity 

Industries or Lukens Steel. Respondents’ request for Rule 30(b)(6) depositions does not 

necessarily result in Complainant producing persons with particular industry knowledge 

or experience, but will only result in the designation of persons to testify about the 

particular topics listed in Respondents’ Notice of Deposition. (See “Notice of Rule 

30(b)(6) Deposition for Complainant” included in Exhibit B attached to Respondents’ 

Memorandum). Respondents have not shown that testimony from these compliance 

officers about their observations of conditions at other inspection sites is reasonably 

calculated to lead to the discovery of admissible evidence concerning industry practice or 

custom. 

 Wherefore, Complainant requests that Respondents’ Motion to Depose OSHA 

Compliance Officers be denied. Complainant will stipulate to the authenticity of the 

inspection files that Respondents obtained pursuant to FOIA requests to Federal OSHA, 

and the contents of such files speak for themselves. Respondents should not be permitted 

to pursue the true purpose of the depositions, which is to seek information about OSHA’s 

enforcement history, or alleged enforcement patterns, concerning combustible dust 

accumulations. Such information is not relevant to claims or defenses in this matter and 

not reasonably calculated to lead to the discovery of admissible evidence. 

9
Respectfully submitted this 18th day of March, 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 

Senior Trial Attorney 

Donaldson.angela@dol.gov 

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 Depose OSHA Compliance Officers 

was electronically served on March 18, 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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