LEGAL02/31159344v1

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

____________________________________)

RESPONDENTS’ PROPOSED ORDER ON

MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to the February 10, 2009 Notice of Hearing, Scheduling Order and Special

Notices, attached is a proposed order regarding Respondents’ Motion for Partial Summary

Judgment, filed on January 27, 2009.

Respectfully submitted, this 26th day of February, 2009.

/s/ Charles H. Morgan

Charles H. Morgan

charlie.morgan@alston.com

Matthew J. Gilligan

matt.gilligan@alston.com

Ashley D. Brightwell

ashley.brightwell@alston.com

Jeremy D. Tucker

jeremy.tucker@alston.com

ALSTON & BIRD LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

FAX: (404) 253-8757

Attorneys for Respondents
LEGAL02/31159344v1

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

____________________________________)

ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT (Proposed)

Respondents have filed a Motion for Partial Summary Judgment (the “Motion”)

regarding allegations contained in two items of two of the citations at issue in this action.

Complainant has filed a response to the Motion, and Respondent has filed a reply. After careful

review of the parties’ submissions, I find that there are no disputed facts and that judgment as a

matter of law is warranted. Thus, Respondent’s Motion is GRANTED.

1. Respondents’ Motion targets only the allegations related to bucket elevators

contained in Item 5(b) of Citation 1 and Item 2(a) of Citation 2. The specific allegations at issue

herein of those items are as follows:

Citation 1, Item 5(b):

South Packing House & Bosch Packing House - On or about 02/07/2008, inside

legs (bucket elevators) 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, exposing employees to explosion and fire

hazards.

Citation 2, Item 2(a):

South Packing House & Bosch Packing House - On or about 02/07/2008, bucket

elevator legs ("legs") or portions of legs that were located inside were not
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LEGAL02/31159344v1

equipped with explosion relief venting to prevent secondary dust explosions

and/or rupture of the elevator housing.

Both of these items allege that the bucket elevators Respondents used to convey sugar in

the packaging areas at Respondents’ refinery in Port Wentworth, Georgia posed a recognized

hazard because they did not comply with standards set by the National Fire Protection

Association (“NFPA”) and, thus, that Respondents violated OSHA’s general duty clause.

Respondents’ contend in their Motion that the bucket elevators at issue in these two citation

items were exempt from any purported standard or requirement set out in the NFPA publications

because they operated at a speed of less than 500 feet per minute. NFPA 61, which OSHA

apparently relied upon to support the two citation items at issue, exempts from its provisions

bucket elevators that operate at speeds less than 500 feet per minute. NFPA 61, §§ 7.4.1.10,

7.4.3.3 (2008 Ed.)

2. Respondents submitted with their Motion the Declaration of Dwayne Zeigler.

Mr. Zeigler’s declaration, and the exhibits to it, demonstrates that Respondents’ bucket elevators

used in its packaging operations were designed to operate and actually operated at speeds well

below 500 feet per minute. Indeed, Mr. Zeigler testified that it was essential to Respondents’

operations that sugar moved through the elevators at speeds no greater than 350 feet per minute.

Complainant has produced no evidence to dispute Mr. Zeigler’s testimony and the business

records included with his Declaration that evidence the speed of Respondents’ bucket elevators.

3. Because the evidence is undisputed that Respondents’ bucket elevators were

exempt from the NFPA provisions that form the basis for the allegations related to bucket

elevators in the two citation items at issue, the allegations fail as a matter of law. Complainant

cannot demonstrate that a recognized hazard existed, as required to establish a violation of the

1

The provisions of the 2008 edition of NFPA 61 cited in this brief are identical to those in the 2002 edition.
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general duty clause, given the specific exemption provided by NFPA 61. The NFPA provisions

do not apply to Respondents’ bucket elevators.

Accordingly, Respondent’s Motion is GRANTED and summary judgment is entered in

favor of Respondent, dismissing the allegations related to bucket elevators contained in Item 5(b)

of Citation 1 and Item 2(a) of Citation 2. Complainant’s claims related to bucket elevators in

Item 5(b) of Citation 1 and Item 2(a) of Citation 2 are DISMISSED WITH PREJUDICE.

SO ORDERED this ____ day of ___________________, 2009.

_________________________________

The Honorable Covette Rooney

U.S. OSHRC Judge
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Prepared By:

Charles H. Morgan

charlie.morgan@alston.com

Matthew J. Gilligan

matt.gilligan@alston.com

Ashley D. Brightwell

ashley.brightwell@alston.com

Jeremy D. Tucker

jeremy.tucker@alston.com

ALSTON & BIRD LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

FAX: (404) 253-8757

Attorneys for Respondents
LEGAL02/31159344v1

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

____________________________________)

CERTIFICATE OF SERVICE

I certify that all parties have consented that all papers required to be served in this action

may be served and filed electronically. I further certify that a copy of the foregoing

RESPONDENTS’ PROPOSED ORDER ON MOTION FOR PARTIAL SUMMARY

JUDGMENT was electronically served on February 26, 2009 on the following counsel for

Complainant:

Karen E. Mock

Mock.Karen@dol.gov

Angela F. Donaldson

Donaldson.Angela@dol.gov

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street S.W.

Room 7T10

Atlanta, Georgia 30303

/s/ Charles H. Morgan

Charles H. Morgan

Alston & Bird LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

charlie.morgan@alston.com