Imperial fire case dragging on year after government action

SAVANNAH -- A year ago today, the federal government came down hard on Imperial Sugar Co. in the wake of deadly explosions and fire at its local refinery.

The Feb. 7, 2008, inferno claimed 14 lives and hurt many more at the company's Port Wentworth plant. Many were treated in Augusta at the Joseph M. Still Burn Center at Doctors Hospital.

Last July 25, the Occupational Safety and Health Administration sought to fine Imperial $8.8 million for alleged safety violations there and at its plant in Gramercy, La.

The company appealed and Imperial President and CEO John Sheptor said he hoped the matter might be wrapped up in a few weeks.

Almost a year later, no end is in sight.

The appeal is still before the independent U.S. Occupational Safety and Health Review Commission.

Settlement talks have produced no deals, and hearings on the matter aren't due to take place until next year.

Meanwhile, more than 40 civil lawsuits are winding their way through the courts. And the results of a separate probe by the U.S. Chemical Safety Board are due this fall.

Senators weigh in

Georgia's U.S. senators are watching the appeal and the safety board inquiry closely.

"These were very serious charges," Republican Saxby Chambliss said of the OSHA citations, "and the families of those whose lives were lost and those who were injured ... deserve answers."

Chambliss and fellow GOP Sen. Johnny Isakson are pinning their hopes on the safety board findings.

"It is Congress' job," Isakson said, "to understand fully the fundamental cause of this disaster so we can help prevent future tragedies."

OSHA is revising its rules on combustible dust, which investigators say fueled the Port Wentworth explosions and fire. Legislation on the same issue by U.S. Rep. John Barrow, a Savannah Democrat, is on hold pending action by OSHA.

Despite the snail's pace of the appeal, attorneys for victims of the disasters say they're encouraged by OSHA's persistence.

"It's pressing its case as doggedly as private lawyers would," Mark Tate said. "Proposed OSHA fines used to get settled for pennies on the dollar.

"But not this time. This speaks volumes about the government's commitment to hold the company accountable."

The review commission has scheduled hearings on the Port Wentworth citations for May 18, 2010, in Savannah. It has set the sessions on the Gramercy issues for June 22 in New Orleans. An administrative law judge will preside.

Either side can appeal the judge's decision to the three-member commission. The last resort for losing parties: the U.S. Supreme Court.

The combined total of $8.8 million in fines is the third highest OSHA has sought to levy. It's not unusual for appeals on such big cases to take years.

Company position

Each side is choosing its words carefully.

"We have challenged OSHA's citations and are working to resolve those differences," Imperial spokesman Steve Behm said. "That process is well under way, but it's one we cannot comment on."

Behm insisted the company shares OSHA's mission of maintaining and improving workplace safety.

"That was true before the accident and continues today," he said.

"In the meantime, we continue to focus ... on getting our new facility completely up and operational by the fall."

For its part, the government stands by its claim that Imperial committed 124 safety violations at Port Wentworth and 97 at Gramercy.

"We're fully prepared to go to court," said OSHA spokesman Michael Wald. "That's about all I have to say."

Both sides are gathering sworn statements, reports and other extensive paperwork. Many filings are available to the public, but only through a formal request process that can take weeks to produce documents.

In preliminary sparring before a commission judge in Washington, D.C., the company has lost at least a couple of rounds and won at least one.

In March, U.S. Administrative Law Judge Covette Rooney rejected Imperial's attempt to have two Port Wentworth citations tossed out. Later in the month, Rooney rebuffed the company's bid to dismiss 12 other citations.

But she did grant the company's request to question some OSHA compliance officers under oath. Imperial lawyers have been allowed to ask them about their experience with sugar refineries and their work experience and training.

A company lobbyist has argued that OSHA inspectors weren't trained in the risks of combustible dust. Citing the ongoing litigation, OSHA has declined to comment.

Imperial said in a February report to the Securities and Exchange Commission that it probably will have to pay at least $3.5 million in fines. Moreover, it might have to pay all $8.8 million, the report stated.

Key issue: Willfulness

The size of the fines hinges heavily on the degree to which the commission agrees with OSHA that scores of the violations were "willful." Such offenses carry greater penalties, ranging up to $70,000 each.

OSHA says "willful" means Imperial displayed "plain indifference to, or intentional disregard for, employee safety and health."

The agency says Imperial knew about the hazards and even studied them - but did little about them.

Last year, CEO Sheptor left open the possibility that Imperial might not contest all the alleged violations. But he has denied that any of them were willful.

The possibility of criminal prosecution - which OSHA hasn't ruled out - also is tied to the willfulness issue.

Under federal law, criminal charges can be brought in cases of willful negligence that causes the death of workers. There is no deadline to file them, OSHA spokesman Wald said.

Rep. Barrow, whose district includes Port Wentworth, wants the possibility kept on the table.

"If we find out that willful misconduct on the part of Imperial executives led to the tragic deaths," Barrow said, "... I think OSHA must seek criminal prosecutions.

"We need to hold people accountable if they've done something wrong, and we need to create a powerful disincentive for others to do the same."