United States Steel Corporation

Plain-English summary

U.S. Steel was cited under the general duty clause for allowing water or ice at seven locations where molten iron or steel could be released at its South Works plant. The Commission focused on whether molten metal could realistically reach and encapsulate the water, creating an explosion capable of causing serious harm, and whether feasible abatement existed at each location. It affirmed three items involving water beneath a blast-furnace ladle car, water in front of a steelmaking vessel, and water in teeming aisles. It vacated four items where the Secretary failed to prove a serious recognized hazard, employer knowledge, or a realistic path for molten metal to reach the water. The Commission also reversed the willful classification because U.S. Steel had evaluated the hazards and was taking measures to remove water and reduce exposure, even though some judgments were inadequate. The original $5,000 penalty was reduced to $500.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Three location-specific items affirmed as serious, four vacated, willful classification reversed, and penalty reduced from $5,000 to $500.
• Key point: A general duty citation for molten-metal and water conditions requires proof that the recognized explosion hazard realistically existed at each cited location and could be feasibly reduced.

Full text (OSHRC public release)

Docket No. 79-1998

SECRETARY OF LABOR,

Complainant

v.

UNITED STATES STEEL CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC, LOCAL UNION 65,

Authorized Employee,

Representative.

OSHRC Docket No. 79-1998

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review
Commission under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health
Act of 1970, 29 U.S.C. �� 651-678 ("the Act"). The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration (OSHA). It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor ("the Secretary") under
the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. �
659(c).

The United States Steel Corporation ("U.S. Steel")
produces iron and steel at its South Works facility in Chicago, Illinois. Following a
March 1979 inspection of two large areas of the facility by an OSHA compliance officer,
the Secretary issued a citation alleging that U.S. Steel had willfully violated the
general duty clause, section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1)[[1]]. The citation
alleged that at seven locations at South Works:

Adequate precautions were not taken to protect employees . . .
from the hazards of molten metal-water explosions and/or eruptions in that employees were
required to work with molten iron and/or steel where spillage, splash, run-out or other
unwanted release of molten metal could contact ice and/or water. . . .

Administrative Law Judge Sidney J. Goldstein found U.S. Steel
in violation of the general duty clause at all seven locations and held that the violation
was willful. He assessed a penalty of $5,000. The issues on review are whether the judge
erred in finding violations of the general duty clause, and if there were violations,
whether they were willful. For the reasons that follow, we affirm the judge's decision in
part and reverse it in part.

The alleged hazard here is that U.S. Steel allowed ice and
puddles of water to accumulate at certain locations in its plant. The Secretary alleges
that this is a hazard because if molten metal were to come into contact with and
encapsulate the water, the rapid heating of the water would cause it to change to a vapor,
or gas and to expand explosively under the molten metal, hurling it in all directions.
U.S. Steel takes the position that the water and ice in its plant did not present a
hazard. It argues that the water and ice were remote from sources of molten metal and
unlikely to explode if molten metal did reach them. The United Steelworkers of America
("Union") takes the same position as the Secretary.

I.

The citation involves two distinct areas of U.S. Steel's
facility, the Blast Furnace Division and the Basic Oxygen Process ("B.O.P.")
Shop. Iron ore is reduced to pig iron in the Blast Furnace Division. When the pig iron
reaches the appropriate temperature, a tapping hole is drilled in the blast furnace
allowing the iron to flow out of the furnace into troughs that run along the upper floor
of the cast house. The iron flows through holes in the upper floor into ladle cars that
are positioned on four sets of railroad tracks that run underneath each furnace. Each
ladle car holds from 150 to 180 tons of metal. From the Blast Furnace Division ladle cars
carrying molten iron are moved to the B.O.P. Shop. At the B.O.P. Shop the molten iron is
combined with scrap metal in a mixer and then charged into a B.O.P. vessel, where it is
treated with oxygen of high purity to remove carbon and other impurities. The molten steel
produced in the vessel is then tapped into another ladle and taken by crane or railcar to
either the continuous caster or the teeming aisles. The 'ladle cars used in the B.O.P.
Shop may contain as much as 200 tons of metal.

During his inspection of the facility, Compliance Officer
Joseph Howicz observed water and ice in a number of locations. In the Blast Furnace
Division he discovered a large piece of ice at the end of track No. 4 under blast furnace
No. 8, and accumulations of water between the tracks at track No. 4 and on the west hot
metal track at Blast Furnace No. 10. The ice was approximately 15 to 23 feet down the
track from the overhead spout through which molten metal descended from the furnace into
the ladle cars. The water on both tracks was underneath where ladle cars would be located
during a pour of metal. Howicz posited that in the event of a breakout from a ladle car or
the blast furnace, spillage from a ladle car, or a ladle car derailment, molten metal
could reach the accumulations of water and ice and cause an explosion.

In the B.O.P. Shop, Howicz observed water in front of "k" vessel, at three
locations in the teeming aisles, and at two locations adjacent to the scrap transfer
tracks. He testified that molten metal could reach the water in front of "k"
vessel due to crane failure or spillage from ladles. In the teeming aisles molten metal
could reach the water through mold failure and mispouring. In the scrap transfer aisles
molten metal could reach the water as a result of ladle car derailment, crane failure, or
spillage from a ladle.

Howicz testified that a molten metal-water explosion results
when a relatively large quantity of molten metal contacts and confines a relatively small
quantity of water. He stated that explosion could occur whether the water was confined, as
in a pit, or free-standing, as in a puddle. The Secretary introduced a number of documents
into evidence on which Howicz relied to conclude that the accumulations of water at U.S.
Steel's plant presented a hazard that was recognized by U.S. Steel and its industry.
Factory Mutual System, Loss Prevention Data: Molten Metal Fires and Explosions (Aug. 1973)
provided details on a number of explosions that occurred when molten metal contacted
water. The publication noted that "keeping the environment dry and free of any
condition which might allow water to collect is vital." Lawrie, "Some Recent
Developments in Health and Safety in Foundaries," The British Foundryman 313-314
(Aug. 1972) stated that if molten metal and water "are allowed to mix there is always
a risk of explosion." The article emphasized "that an explosion does not always
result if [molten metal] runs on to wet surfaces, although on occasion it will sputter
sufficiently to endanger those who are close to it. It is also well known that if liquid
metal flows into water, there may be an explosion sufficiently violent to scatter the
metal over a wide area. . . ." U.S. Steel's own Explosion Hazards Manual, Blast
Furnace Section, 94 (1968)[[2]] states:

Molten Material Handling

Water, Snow and Ice

Water, snow and ice should be kept off the tracks and ground in
the vicinity of the hot metal and cinder tracks at the casthouse, and at the pig machine
pouring area, ladle house, molten slag dump, desulphurizing and at any other location
where hot metal is poured or transferred between ladles or other containers.

Water accumulation or water-impregnated materials caused by
improper drainage or lack of maintenance of water or steam lines in areas of hot metal or
slag transfer points shall be eliminated.

Water accumulations below pig machines should be eliminated and
the use of coolant water should be minimized.

Howicz testified that based on his experience and his review of
the documents dealing with molten metal-water explosions, accumulations of water in such
close proximity to sources of molten metal were serious hazards that could cause death or
serious physical harm. Howicz relied in particular on a molten metal-water explosion at
the Burnside foundry in Chicago, in which 5 persons were killed and 7 persons were injured
when 6 tons of molten metal fell into a 10-foot square pit.

According to Howicz, the hazards presented by the ice and water
could be eliminated in a number of ways. The ice could have been broken up and removed.
The accumulations of water in the area of the hot metal and scrap transfer tracks could
have been eliminated through the use of absorbent materials, or the construction of dams
and better drainage systems. He testified that vessel "K" could have been shut
down until the water on the transfer tracks was removed. Howicz also suggested that U.S.
Steel use only as much water as was necessary for production in the teeming aisles.

To explain the nature of the hazard, the Secretary primarily
relied on the testimony of Dr. J. Gerin Sylvia. Dr. Sylvia had extensive experience in the
operation of foundries and had taught college courses in metallurgy and related subjects.
He had never been involved in the operation of an iron-producing blast furnace or a
steel-producing B.O.P. furnace. Nor had Dr. Sylvia ever consulted with steel companies
that operated such furnaces. In Dr. Sylvia's view, a molten metal-water explosion hazard
existed wherever molten metal could contact ice or water, but he stated that the molten
metal generally has to cover the water for there to be an explosion. He testified that it
is very difficult to predict accurately the magnitude of an explosion or the direction it
will take. Dr. Sylvia explained that water can accept heat up to 212�F, then it changes
into steam. At approximately 705�F, the steam loses the capacity to accept heat. When
molten metal with a temperature in excess of 2400�F covers water so as to entrap it, the
heat transferred from the metal to the water causes the water to change to vapor and to
expand very rapidly, causing fragmentation of the metal into small pieces. Although there
can be fragmentation and explosion if the water is freestanding and the metal does not
cover the water, Dr. Sylvia stated that fragmentation generally occurred when water was
entrapped by molten metal so that the expanding vapor can neither permeate nor escape
through the coating of molten metal. He testified that an explosion could be expected if
molten metal came in contact with a freestanding puddle of water but ruled out the
possibility of an explosion if a minimal amount of molten metal trickled into a puddle
from the side.

Ralph Tuepker, U.S. Steel's blast furnace engineer, had 29
years experience at South Works. Tuepker testified that for "a rather serious
reaction" to occur molten metal would have to completely cover the water. He
testified that the force of a reaction increases proportionately to the extent water is
confined. Tuepker described the reaction of molten metal coming into contact with water as
"very unpredictable." It was his judgment that if the water was no more than an
inch or so deep, there would not be a hazard. Tuepker became concerned about water on the
hot metal tracks when the surface of the tracks was no longer visible or when the cast
house yard was covered with water. In those circumstances, steps were taken to remove the
water. Tuepker testified that it was not always feasible to use drains on the hot metal
tracks underneath the cast house because of the possibility of molten metal spilling into
a drain that already contained water and causing an explosion. He characterized dams as
temporary expedients that were constantly being destroyed by the movement of ladle cars.

Besich was U.S. Steel's superintendent in the B.O.P. Shop. He
had been at South Works for 21 years. Besich testified that in his experience, reactions
and explosions involving molten metal and freestanding water had not been serious. He
described a puddle of water several inches deep as not a big amount, but testified that a
puddle of water 3 feet deep had to be cleaned up. Besich stated that molten metal does not
encapsulate freestanding water but flows by it. He testified that any reaction between
freestanding water and metal could cause bits of metal, vapors and flame to fly in the air
but probably would not cause an explosion. Besich testified that on the day of the
inspection U.S. Steel was removing the water in front of "K" vessel by putting
down absorbent gravel and then removing it with a payloader. He stated that it was
necessary for U.S. Steel to use large amounts of water to teem ingots in the teeming
aisles in order to protect its employees from the hazards of exploding molds. Besich
testified that U.S. Steel was unaware of any feasible way to keep the water from
accumulating alongside the scrap transfer tracks. He stated that at the time of the
citation, U.S. Steel's drainage system in that area was at the state of the art in the
industry.

Tuepker and Besich both testified that they were unaware of any
serious injuries at South Works that had resulted from molten metal-water explosions.

II.

Judge Goldstein found that assigning work in areas where molten
metal could accidentally reach water exposed U.S. Steel's employees to a hazard. He relied
on the decisions in Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d
378 (6th Cir. 1978), and Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir. 1980).
Judge Goldstein found that U.S. Steel failed to demonstrate that water in the proximity of
molten metal did not present a hazard. He noted that although Tuepker and Besich, U.S.
Steel's witnesses, testified that water was not a danger if it was unconfined, there was
nothing in the record to confirm their view. Rather he credited the documentary evidence,
particularly U.S. Steel's safety manuals, over the testimony of Tuepker and Besich. He
found that the documentary evidence supported the safety rule that molten metal should not
be tolerated near unnecessary water, regardless of whether the water was freestanding. The
judge also noted that explosions had occurred when molten metal reached unconfined water
and that Dr. Sylvia, who he characterized as an experienced metallurgist, did not
subscribe to the theory that there was a hazard only if the water was confined. Judge
Goldstein relied on U.S. Steel's safety manual and the testimony of its witnesses in
finding that U.S. Steel recognized the hazard. He found that serious physical harm was
likely to result from the hazard based on an incident in which burns were suffered by U.S.
Steel's management employee.[[3]] The judge based his finding that the Secretary had shown
a feasible method of abatement on U.S. Steel's failure to object to the Secretary's
proposal for the use of absorbent materials.  Judge Goldstein characterized the
violation as willful. He found that U.S. Steel had been aware of the hazards of molten
metal and water since November 1977, but continued to pour molten metal with water in the
vicinity. He assessed a penalty of $5,000.

III.

U.S. Steel contends that Judge Goldstein erred in finding that
it violated the general duty clause by permitting water to accumulate in areas where there
was only a remote possibility that it might come into contact with hot metal. It claims
that Judge Goldstein should have determined whether there was a realistic possibility that
hot metal and water would come into contact and cause an explosion. U.S. Steel relies on
language in United States Steel Corp., 82 OSAHRC 35/A2, 10 BNA OSHC 1752, 1982 CCH OSHD �
26,123 (No. 77- 1796, 1982) ("U.S. Steel"), in which the Commission, in
discussing molten-metal water explosion hazards in open hearth furnaces noted that
"[a]n explosion due to entrapment of water occurs only if water is subjected to
extreme heat while caught behind a solid barrier which prevents its escape as it vaporizes
and expands." 10 BNA OSHC at 1757, 1982 CCH OSHD at p. 32,870. U.S. Steel notes that
the steel industry does recognize that a hazard may exist where water may be encompassed
by molten metal. However, it maintains that freestanding, insignificant amounts of water
do not present a hazard, particularly when the water is a necessary part of the
steelmaking process. It argues that Tuepker and Besich were far more qualified to evaluate
the hazards at South Works than Dr. Sylvia because Tuepker and Besich were more familiar
with the processes there. U.S. Steel contends that the testimony of Tuepker and Besich
regarding hazard recognition does not conflict with the provisions of its safety manuals.
It maintains that the safety manuals merely acknowledge that a hazard may be present under
certain conditions and the testimony of Tuepker and Besich explained what those conditions
are. U.S. Steel contends that Dr. Sylvia's testimony that there is no real, concrete basis
for hazard evaluation of molten metal-water explosions demonstrates that no recognized
hazard was present at South Works.

U.S. Steel argues that the Secretary has not shown that
employees would suffer serious physical harm or death because there is no showing that
water would have contacted the metal, if the metal did escape. In the event the metal and
water did react, U.S. Steel argues that its employees would have been protected because
they were not permitted in dangerous areas and were protected by impenetrable barriers.

In discussing abatement of the hazards, U.S. Steel contends
that it was using all feasible methods of abatement at the time of the inspection. It
argues that the severe winter weather affected its ability to eliminate the water under
the blast furnaces and that it did not know of the existence of the ice. U.S. Steel states
that the water that accumulated on the teeming aisles was an inherent, necessary part of
the teeming process, and that the water on the scrap transfer tracks could not have been
avoided because the drainage in that area represented the state of the art.

The Secretary argues that he has proven "overwhelmingly and conclusively that [U.S.
Steel] created a recognized hazard by permitting molten metal to be poured and transferred
in the vicinity of accumulations of water and ice." He relies on the testimony of
U.S. Steel's witnesses that the combination of molten metal and water was a recognized
hazard in the steel industry. He also relies on the warning in U.S. Steel's Explosion
Hazards Manual to keep "[w]ater, snow and ice . . . off the tracks and ground . . .
at any location where hot metal is poured." He cites the language of "Some
Recent Developments in Health and Safety in Foundries" that states that if molten
metal and water "are allowed to mix there is always a risk of explosion." He
also cites Dr. Sylvia's testimony that the steel industry recognizes the explosion hazard
of molten metal coming into contact with water.

The Secretary argues that molten metal-water explosions are
possible at South Works and not dependent upon a "freakish or utterly implausible
concurrence of circumstances," citing Titanium Metals Corp. v. Usery, 579 F.2d 536,
541 (4th Cir. 1978). To substantiate his claim the Secretary introduced evidence of the
accident in which U.S. Steel's management employee was burned, and of other explosions
that have occurred at South Works. He discounts U.S. Steel's claims that employees would
have been protected from the effects of explosions because they were not permitted to work
near the hazards and were protected by physically impenetrable barriers. The Secretary
contends that the evidence demonstrates that employees were exposed to explosion hazards
and were not protected by physical barriers.

The Secretary argues that water and ice were present not due to
the production of steel, but because of poor weather, poor drainage and broken piping. The
Secretary argues that feasible abatement methods could have been implemented to remove or
materially reduce the hazards at all 7 locations. He relies primarily on the use of
absorbent material and better drainage, but notes that U.S. Steel did not rebut the
compliance officer's suggestion that the hazard of the water in front of "k"
vessel could be removed by shutting down "k" vessel.

The union reiterated many of the Secretary's argument. It also
emphasized that abatement of the hazard by having employees put down and remove absorbent
materials should only be done when pouring is not underway nearby.

IV.

To prove that an employer violated section 5(a)(1), the
Secretary must show that a condition or activity in the employer's workplace presented a
hazard to employees, Sharon Steel Corp., 85 OSAHRC___ , 12 BNA OSHC 1539, 1541, 1985 CCH
OSHD � 27,423 at p. 35,526 (No. 80-7251, 1985), citing Aluminum Co. of America, 83 OSAHRC
24/E10, 11 BNA OSHC 1898, 1984 CCH OSHD � 26,852 (No. 77-2350, 1984). The Secretary must
further prove that the hazard is likely to cause death or serious physical harm and that
feasible means existed to eliminate or materially reduce the hazard. Phillips Petroleum
Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1983-84 CCH OSHD � 26,783, p. 34,524 (No.
78-1816, 1984), aff'd, No. 84-1425 (10th Cir. Sept. 19, 1985).

The parties agree that molten metal in contact with water can
in some circumstances present a hazard of explosions, but disagree as to the circumstances
that were recognized to be hazardous. The Secretary asserts that he has proven
"overwhelmingly and conclusively that [U.S. Steel] created a recognized hazard by
permitting molten metal to be poured and transferred in the vicinity of accumulations of
water and ice." But U.S. Steel asserts that it and its industry recognized a hazard
in these operations only where there was a significant amount of water that could become
encapsulated by molten metal. We find that U.S. Steel's view of the evidence is
essentially correct.

In U.S. Steel, the Secretary charged a section 5(a)(1)
violation on the basis that the employer's procedure of changing oxygen lances over molten
metal in an open hearth furnace operation exposed employees to an explosion hazard. In
that case, there was considerable testimony indicating that there would be no explosion
hazard unless the cooling water in the lance was actually entrapped or encapsulated under
the molten metal. For example, the Secretary's expert Geoffrey Belton agreed with the
employer's expert Chester Bieniosek that an explosion could occur only if water under the
molten metal were subjected to extreme heat and caught behind a solid barrier which
prevented its escape. They thus agreed that any water would have to be trapped under the
molten metal behind a solid barrier, such as the lance itself with its water ports blocked
by solidified metal impurities--slag, or solid ore and scrap at the bottom of the molten
metal furnace. Otherwise, any water released into the molten metal would simply bubble to
the surface and cause no hazard.

Different operations are now before us--here the molten metal
is not confined in a furnace where it is cooking, instead the problem is molten metal
breakouts or flows from various operations. However, there is also considerable testimony
in this case that there will not be any significant explosion hazard unless water is
actually entrapped or encapsulated by molten metal. The Secretary's expert, Dr. Sylvia,
testified that, although explosions are possible if molten metal only contacts water,
generally the molten metal must cover the water to such an extent that water becomes
entrapped under the molten metal. This testimony supports that of U.S. Steel's witnesses
Tuepker and Besich, who both emphasized that the water must be covered and encapsulated
for there to be any significant hazard of explosion.[[4]] Moreover, both of these
witnesses based their testimony on their considerable experience in the industry, whereas
the Secretary's expert Dr. Sylvia lacked such experience. He had operated neither blast
nor B.O.P. furnaces nor consulted with steel companies who operate such furnaces.
Accordingly, to the extent that Dr. Sylvia's testimony could be understood to suggest the
existence of a hazard under conditions not involving encapsulation, the testimony is not
entitled to critical weight.

Having determined that U.S. Steel recognized an explosion
hazard from water encapsulated by molten metal poured or transported in the vicinity of
the water, we next consider to what extent the Secretary established that the recognized
hazards were present at South Works, whether they were likely to cause death or serious
physical harm, and whether there were feasible means by which the hazards could be abated
or materially reduced. We consider each item separately.

Item-1(a):

Blast Furnace No. 8, Hot Metal Track No. 4

A large piece of ice 2 feet by 3 feet by 8 feet was discovered
by the compliance officer at the end of hot metal track No. 4. The ice was located 15 to
20 feet from a point directly beneath the pouring spout from which the ladle cans are
filled. The ice was covered with dirt and flue dust. The compliance officer testified that
if there was a substantial spill, splash or other unwanted release of molten metal, it
could confine the ice and cause a tremendous explosion.

We find that the evidence relied upon by the Secretary does not
establish that the ice posed a hazard to U.S. Steel's employees. Tuepker, the engineer in
the blast furnace division, testified that breakouts from the furnace and ladle cars were
extremely rare. He had seen fewer than half a dozen ladle car breakouts in 30 years.
Angelo Dickerson, a U.S. Steel employee for 35 years, testified that molten iron from a
taphole breakout from the furnace could reach the ice only if there were no ladle cars
underneath the taphole and the breakout could not be plugged with a mudgun. Dickerson
stated that taphole breakouts occur once or twice a year. Perhaps most important, Tuepker
further testified that even if molten metal came down the runner with no ladle car in
position, it would still take 150 to 180 tons of molten metal, the equivalent of a full
ladle, 10 to 15 minutes to reach the ice. He stated that the ice would probably be
vaporized by the heat generated by the molten metal before the metal reached the ice.
Tuepker's testimony also demonstrated that U.S. Steel's typical procedures for controlling
breakouts would effectively prevent molten metal from a taphole breakout from reaching the
ice. In addition to having ladle cars positioned on the tracks underneath the bliss
furnace to receive the metal, these measures include reducing the flow of the metal by
cutting the wind in the furnace, using a mudgun to plug the breakout and spraying water on
the area of the breakout to "freeze" the escaping iron and plug the breakout.

The Secretary also failed to show that U.S. Steel knew or with the exercise of reasonable
diligence could have known of the existence of the ice. See Getty Oil Co. v. OSHRC, 530
F.2d 1143 (5th Cir, 1976). The compliance officer testified that U.S. Steel's management
employees who accompanied him on the inspection told him that the object had been there
since December (the inspection occurred in March). However, there was no evidence that
U.S. Steel knew that the object was ice until the compliance officer discovered it. Until
that time, it was apparently impossible to determine that the large object was not an
accumulation of dirt and flue dust. Even the compliance officer did not realize it was ice
until the second day of the inspection. Indeed, one employee witness, when told at the
hearing that the pile at the end of the track was ice rather than a pile of dirt, refused
to believe it. The employee's testimony and the compliance officer's failure to identify
the ice until it began to melt on the second day of the inspection substantiate U.S.
Steel's claim that it did not know that there was ice underneath the dirt. The evidence
also demonstrates that Steel could not have discovered the ice with the exercise of
reasonable diligence. Tuepker testified that the ice was in an area "pretty much out
of bounds for employees." Any employees in the area would not have expected to see
ice, because, as Dickerson testified, "There is no way that a block of ice has [any]
business under a cast house . . . There's no way for it to even form . . . "

Accordingly item 1(a) of citation 2 is vacated.

Item 1(b):

Blast Furnace No. 10, West Hot Metal Track

A puddle 12 to 14 inches wide, 6 feet long and 2 3/4 inches
deep had accumulated on the hot metal track underneath Blast Furnace No. 10. When a ladle
car is in position to receive molten iron from the taphole in the floor above, it stands
directly over the puddle. The water primarily came from the cast house yard which had been
saturated from heavy rains and melting snow. Water in the yard tends to drain towards the
track area under the cast house. At the time of the inspection, employees were pumping
water out of the yard. Flue dust had been put on the hot metal tracks to absorb water. The
compliance officer testified that U.S. Steel's employees were working on the cast house
floor above the tracks and in the cast house yard. Tuepker, U.S. Steel's Blast Furnace
division engineer, did not consider the amount of water present on track No. 4 to be
significant. He testified that molten metal could be safely cast into a ladle car with the
water present. If the metal did reach the water, Tuepker testified that he would expect
"a shot of varying and probably unknown intensity . . . the force of that shot would
be mainly absorbed by the mass of that ladle. . . . The force not absorbed by the ladle
would continue on upward . . . and would probably hit the cast house structure."

The evidence demonstrates that molten metal could reach the
water between the west hot metal tracks and cause an explosion. Indeed, the evidence at
trial established that a molten metal-water explosion had previously occurred on the
tracks underneath this blast furnace. Tuepker's testimony of the effects of a reaction
apparently was intended to minimize any suggestion that a hazard existed. We find,
however, that there is evidence establishing the existence of a hazard.

U.S. Steel argues that the hazard was not shown to have been
likely to cause death or serious physical harm. We disagree. Although molten metal-water
explosions are not everyday occurrences, they have occurred and with catastrophic effect.
The circumstances here certainly presented all the conditions necessary for such an
occurrence. That U.S. Steel has not experienced such injuries from such explosions at this
plant does not demonstrate that the condition here was not likely to cause serious harm
within the meaning of the general duty clause.

To prove the feasibility and likely utility of the abatement
measures he proposed, the Secretary must be able (1) to establish the type of employer
conduct necessary to avoid citation under similar circumstances and (2) to demonstrate the
feasibility and likely utility of such conduct. Phillips Petroleum. Id. The Secretary
suggested that the hazard could be abated by putting absorbent material on the water, by
providing drainage, and by building dams or dikes. U.S. Steel responds that it "had
employed all abatement measures recommended by OSHA, but due to the severe weather
conditions could not have avoided citation." The company correctly points out that
the use of drains into which molten metal might flow increases the likelihood of
entrapment and resultant explosions. Nevertheless, it could have employed the other
abatement methods to a greater extent to further remove or materially reduce the amount of
water in the area regardless of its source. Commissioner Rader and Commissioner Wall
therefore affirm item 1(b) of citation 2.

Chairman Buckley would vacate item 1(b). In his view, the
unrebutted testimony of Tuepker makes clear that the accumulation of water under the west
hot metal track did not present a hazard. Tuepker testified that it was extremely unlikely
that any molten metal from any source would reach the water under the ladle car on the
tracks, since the metal would hit the car and run off the sides of the car outside the
track. In the event the metal did reach the water he stated that the "shot"
produced probably would be absorbed by the ladle car or by the case house structure.
Although an explosion may have occurred on the west hot metal track, Chairman Buckley
notes that there was no indication that the water involved in that explosion was situated
between rails as it was here.

Item 1(c):

Blast Furnace No. 8, Hot Metal Tracks Nos. 3 and 4

The compliance officer observed three one-inch deep puddles
measuring 2 inches by 5 inches, 3 inches by 5 inches, and 4 inches by 5 inches, underneath
a ladle car on hot metal track four. He found wet ground underneath a ladle car on hot
metal track number three. There had been a molten metal-water explosion in this area, and
a spill of molten metal that covered the width of 2 to 3 tracks. The compliance officer
testified that molten iron from spills and breakouts could reach these puddles from an
overhead spout and cause an explosion if a ladle car was improperly aligned under this
spout or if no ladle car was present. Tuepker testified that the amount of water present
was insignificant. Angelo Dickerson, who had 35 years experience working around blast
furnaces at South Works, testified that the amount of water was too small "to do
anything to talk about" and "enough for an explosion, but . . . not enough for
that kind of explosion." He asserted that any reaction would not reach the floor of
the cast house and that no employees were allowed under the cast house during a pour.

Chairman Buckley and Commissioner Rader conclude that these
small puddles of water do not present a hazard likely to cause death or serious physical
harm to U.S. Steel's employees. They conclude that even if molten metal reached the water,
any reaction that resulted would be minor. As Dickerson testified, the water the three
puddles contained was "not enough for that kind of explosion." Under the general
duty clause the hazard must be "serious." This small amount of water does not
produce a serious hazard.

Chairman Buckley would also vacate the item because he does not
believe there is a significant risk here that molten metal could entrap water and cause an
explosion. First, it is unlikely that the spout would be operated without some part of the
54-foot long ladle car beneath the spout. Second, if some part of the ladle car was
beneath spout, the molten metal would spill over the car to the sides of the track and
would contact the water on the tracks only if it accumulated at the track's edge at a
level sufficient to flow over the tracks.

Accordingly, item 1(c) of citation 2 is vacated.

Commissioner Wall would affirm item 1(c). In his view, the
amount of water in these three puddles is certainly not insignificant. Moreover, the
amount of water only raises the issue of the magnitude of explosion if one occurred; the
explosion hazard is still present, and would be likely to cause death or serious physical
injury. Spills and explosions have occurred on these tracks previously and if the water in
these puddles reacted with molten metal a substantial explosion is possible. An additional
concern in this item is that the puddles would be immediately beneath a ladle car when hot
metal is poured into it. If the car were not positioned properly, an explosion would
almost certainly occur.

Item 1(d):

B.O.P. Shop at "k" vessel

When metal is tapped into a ladle from "k" vessel in
the B.O.P. Shop, it is either placed on a railroad car and moved to the continuous caster
or teeming aisles, or picked up by craned and carried to the teeming aisles. On the day of
the inspection, large portions of the tracks that run from "k" vessel to the
continuous caster and the area surrounding them were covered with up to 2 to 3 inches of
water. The heaviest concentration of water was 20 feet in width by 100 feet in length.
U.S. Steel's employees were dumping gravel in this water and then removing it with a
payloader. Its employees were also attempting to repair the broken piping in a vacuum
degasser that was the source of the water. No molten metal was being moved to the
continuous caster at the time of the inspection, it had been shut down to avoid carrying
molten metal over the water. However, according to the compliance officer, the water
presented a hazard to U.S. Steel's employees because U.S. Steel continued to move molten
metal to the teeming aisles by carrying it over the water in front of "K"
vessel. He testified that molten metal could fall on the water if a crane carrying molten
metal to the teeming aisles failed. Besich, U.S. Steel's B.O.P. Shop superintendent,
testified that he was only aware of one incident of a crane dropping a full ladle of
metal, and that had occurred at U.S. Steels' Gary Works.

Besich knew of approximately 10 ladle breakouts in the B.O.P.
Shop at South Works. To his knowledge no one had been hurt from such breakouts, which
usually occurred on the ground. Besich stated that U.S. Steel was taking pains to remove
the water in front of "K" vessel because it "tended to be somewhat
confined, and that is more of a hazard than freestanding water." Besich agreed that
the admonition in U.S. Steel's Explosion Hazards Manual that "[w]ater, snow and ice
should be kept off . . . locations where hot metal is poured," should be followed. He
stated, however, that areas like the furnace must be given first priority in water
removal.

U.S. Steel had reduced the amount of molten metal in the ladle
by 5,000 pounds to make spills less likely, and was attempting to abate the hazard at the
time of the inspection. However, a preponderance of the evidence establishes that when
molten metal was taken to the teeming aisles by either crane or rail it passed over the
water in front of "K" vessel. Although spills and breakouts are not a common
occurrence in the B.O.P. Shop, they have occurred. By allowing the metal to pass over the
water U.S. Steel created the reasonable probability that metal would spill directly on top
of the water. In fact, Besich conceded that the water here was confined, presenting a
greater hazard of entrapment than freestanding water. If the metal did spill and entrap
the water, subjecting it to extreme heat, it would cause an explosion, see U.S. Steel, 10
BNA OSHC at 1757, 1982 CCH OSHD at p. 32,870, in an area where a number of U.S. Steel's
employees were working.

The Secretary presented evidence that putting absorbent
material on the water and removing it and shutting down "K" vessel until the
water was removed were feasible methods of abating the hazard. Although it seems to us
that shutting down "K" vessel might substantially interfere with U.S. Steel's
operations, U.S. Steel made no attempt to rebut the Secretary's evidence or to show that
it was economically infeasible to interrupt casts in order to remove the water, or to shut
"K" vessel down until the water was removed. See Sherwin-Williams Co., 84 OSAHRC
/, 11 BNA OSHC 2105, 2110, 1984 CCH OSHD � 26,986, p. 34,702 (No. 14131, 1984).
Accordingly, we conclude that the Secretary has established feasible means for abating the
hazard in front of "K" vessel and affirm item 1(d) of citation 2.

Item 1(e):

Teeming aisles Nos. 1, 2 and 5

In the teeming aisles, molten steel transported from the B.O.P.
vessels is bottom poured from a crane held ladle into ingot molds. The molds, which sit on
flat, small-gauge railroad cars, may contain as much as 20 tons of molten metal. U.S.
Steel's employees, who regulate the flow of steel into the molds, stand on pouring
platforms on bays that run parallel to the tracks on which the flat cars sit. The tracks
are approximately 12 feet below bay level. A necessary part of the process of producing
ingots involves spraying water on top of the ingots while the metal core is still molten,
in order to "quench" the mold. On the day of the inspection, water from this
process and runoff water from the outside had accumulated next to and in the middle of the
tracks in the teeming aisles. The two largest puddles were 2 feet by 8 inches by 2 inches
and 5 feet by 18 inches by 1 to 2 inches. Porter, who had been first steel pourer on the
teeming aisles, had seen molten steel spill when molds leaked or separated. He had seen a
number of explosions on the teeming aisles but had never seen anyone injured as a result
of an explosion. Besich, the superintendent in the B.O.P. Shop, conceded that molten
metal-water reactions had occurred in the teeming aisles. He discounted the significance
of the water present during the inspection. He did not consider the amounts in than
teeming aisles significant because they were not confined. The compliance officer
testified that it was an unsafe practice to allow puddles of water to accumulate on the
floor in an area where molten metal is handled.

We find that the water in the teeming aisles does present a
hazard that is likely to cause death or serious physical harm to U.S. Steel's employees.
The presence of a hazard is demonstrated by the close proximity of molds containing as
much as 20 tons of molten steel and significant amounts of water. The evidence also shows
that the molds occasionally spill metal by leaking or separating, and that molten
metal-water explosions have occurred as a result.

The Secretary proposed two abatement methods. The first method, spraying only as much
water on the ingots as is necessary, is not feasible. U.S. Steel demonstrated that it was
necessary to spray copious amounts of water on the molds. Besich explained that to insure
that the ingots are properly "teemed" and that the molds themselves do not
explode, excessive amounts of water must be sprayed on the ingots. The compliance officer
did not explain how U.S. Steel could spray less water on the ingots and still prevent
employee exposure to exploding molds.

The Secretary also suggests that the hazard could be abated by
putting absorbent material on the water and removing it between pours. The compliance
officer agreed that it would not be safe for employees to be en the teeming aisle floors
when there was the possibility of exposure to molten metal; however, under
cross-examination by counsel for U.S. Steel, he suggested that employees could be on the
floor to put down absorbent material and remove the water during the intervals after
ingots have been poured, teemed and removed and before new ingots are poured. Although
U.S. Steel raised this question during its own cross-examination and was certainly aware
of the Secretary's suggested abatement method, U.S. Steel offered no evidence that the
water could not have been removed during these intervals. Although Chairman Buckley
suggests that any reduction in the hazard through such removals is immediately lost when
the next molds are poured and teemed, the primary danger of a molten metal-water explosion
hazard exists during the pours before the quenching process takes place. Cleaning up
between pours of molten metal would materially reduce the hazard because the water will
not be present during the next pour. Moreover, although water is an inherent part of the
process, the compliance officer testified that teeming aisles in other steel mills were
kept dry.  Because of U.S. Steel's total failure to introduce any evidence rebutting
the Secretary's suggested abatement method, Commissioner Rader and Commissioner Wall
conclude based on this record that it was feasible for U.S. Steel to remove water that
accumulated from teeming ingots and other sources by using absorbent materials when metal
was neither being poured nor being allowed to cool, and affirm item 1(e) of Citation 2.

Chairman Buckley would vacate item 1(e). He finds that the
Secretary did not establish a feasible method of abatement that would eliminate or
materially reduce the hazard. Phillips Petroleum Co., 11 BNA OSHC at 1779, 1983 CCH OSHD
� 26,783, p. 34,524. In his view, the presence of water in the teeming aisles is a
necessary byproduct of the teeming of ingots. He agrees with the majority that the use of
less water in the teeming operation is not a feasible method of abating the hazard.
Chairman Buckley also finds that the Secretary failed to establish that the hazard can be
eliminated or materially reduced through the use of absorbent material. The Secretary's
abatement method would require U.S. Steel to use absorbent material to remove the water in
the intervals when ingots are not being poured or cooled in the molds in the teeming
aisles. However, the Secretary does not establish that the intervals between pours would
allow this. Even if U.S. Steel is able to remove the water between pours, the hazard will
not have been materially reduced or eliminated because the pouring and quenching operation
will reintroduce the hazard almost immediately. The water that is present in the teeming
aisles is inherent in the process. There is no evidence that U.S. Steel poured molds with
water needlessly present in the teeming aisles. See Babcock & Wilcox, 622 F.2d at
1164.

Item 1(f): Scrap transfer track No. 3

Item 1(g): Scrap transfer tracks No. 1 and 2

At ground level in the B.O.P. shop, south of the B.O.P.
vessels, three sets of railroad tracks run in from the outside. Scrap metal that is later
added to the mixer along with pig iron is brought into the shop on these tracks. Three
puddles of water, each approximately 5 feet in diameter and 1 inch deep, had accumulated
in the area adjacent to the tracks. The water alongside scrap transfer track number 3 was
located 15 to 20 feet below the hot metal transfer tracks on which ladle cars of molten
pig iron are brought into the B.O.P. Shop from the Blast Furnace Division. There was no
evidence that molten metal from the ladle cars had reached the scrap transfer tracks but
the compliance officer testified that molten metal from these ladle cars could reach the
water below in the event of a spill, breakout, or ladle car derailment. The hot metal
track rests on a platform, 12 to 15 feet wide. The compliance officer testified that in
the event molten metal spilled or leaked from a ladle car on the the hot metal track and
hit the ground below the edge of the platform, he did not know how far the metal would
have to go to reach the puddle in item 1(f). There was evidence that a ladle car from
which molten metal had been removed had once overturned on the hot metal tracks when a
large piece of solidified iron inside the car had shifted and thrown the ladle car off the
tracks, but molten metal was not spilled on that occasion.

The two puddles cited in item 1(g) were in an area where ladles
of molten metal were being transported overhead by crane. The compliance officer testified
that molten metal could reach the puddles from these ladles in the event of crane failure.
The compliance officer noted that there were no physical barriers that would prevent metal
from falling into the puddles. There was evidence that molten metal had been spilled in
the area, but not whether it would have reached the puddles. Superintendent Besich had
never witnessed a crane failure in the B.O.P. Shop that resulted in metal spilling. He
testified that ladle spills in the charging aisle are rare, but are most likely to occur
when a ladle is being picked up or set down by the crane. In his view, if a crane dropped
a ladle in this area, the result would be "terrible", regardless of the presence
of water.

We conclude that the conditions cited in items 1(f) and 1(g) do
not present hazards likely to cause death or serious physical harm to U.S. Steel's
employees. Should molten metal leak from a ladle car on the hot metal tracks, it was not
shown by a preponderance of the evidence that it would eventually reach the water cited in
item 1(f). In fact, on this record it seems extremely unlikely, if not virtually
impossible that the molten metal could reach any of these puddles.

Accordingly items 1(f) and 1(g) of citation 2 are vacated.

V.

Having found that U.S. Steel violated the general duty clause
at 3 locations, our next inquiry is whether the violations were willful. To establish that
a violation was willful, the Secretary must show that it was committed voluntarily with
either an intentional disregard for the requirements of the Act or plain indifference to
employee safety. See Simplex Time Recorder Co., 85 OSAHRC /__, 12 BNA OSHC 1591, 1595,
1985 CCH OSHD � 27,456, p. 35,571 (No. 82-12, 1985), citing D. A. & L Caruso, Inc.,
84 OSAHRC /__, 11 BNA OSHC 2138, 2142, 1984 CCH OSHD � 26,985, p. 34,694 (No. 79-5676,
1984); Duquesne Light Co., 84 OSAHRC 23/D2, 11 BNA OSHC 2033, 2040, 1984 CCH OSHD �
26,959, p. 34,603 (No. 79-1682, 1984); Mobil Oil Corp., 83 OSAHRC 47/B6, 11 BNA OSHC 1700,
1983 CCH OSHD � 26,699 (No. 79-4802, 1983). To prove that a violation of a broadly-worded
provision like the general duty clause is willful, a more concrete evidentiary showing is
required than under a more specific standard. See Lukens Steel Co., 81 OSAHRC 96/A2, 10
BNA OSHC 1115, 1125, 1981 CCH OSHD � 25,742. p. 32,121 (No. 76-1053, 1981); St. Joe
Mineral Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981).

U.S. Steel contends that its efforts to abate allegedly
hazardous conditions and its good faith belief that it was not violating the Act preclude
a willful characterization. U.S. Steel contrasts the willful characterization here with a
case like Babcock & Wilcox, which, it contends, involved a far greater potential for a
hazard, but which the United States Court of Appeals for the Third Circuit refused to
characterize as willful.

The Secretary argues that a prior citation in 1977, U.S.
Steel's own work rules and employee complaints to U.S. Steel regarding explosion hazards
made U.S. Steel, aware of the hazardous condition. In failing to abate these conditions,
the Secretary claims that U.S. Steel committed a willful violation.

We cannot say that U.S. Steel's failure to comply with the
general duty clause as to items 1(b), 1(d) and 1(e) of citation 2 should be characterized
as willful violations of the Act. The Secretary does not establish that U.S. Steel decided
to pour and transport molten metal in the vicinity of water in intentional disregard of
the requirements of the Act. The circumstances of this case demonstrate that U.S. Steel
was aware of the explosion hazard arising from encapsulation of water by molten metal.
U.S. Steel developed a strategy for dealing with the hazard based on the judgments of its
managers as to the existence of conditions that could give rise to an explosion hazard.
Although U.S. Steel's actions to prevent such a hazard were not always as comprehensive as
its manual directed, there is nothing in its treatment of the proximity of molten metal
and water that demonstrates an intentional disregard of the requirements of the Act. U.S.
Steel was attempting to remove the water cited in items 1(b) and 1(d). It was making
further attempts to remove the hazard cited in item 1(d) by shutting down the continuous
caster to stop molten metal from being transported over the water in front of
"K" vessel and reducing the level of molten metal in the ladle. It did not know
of the ice cited in item 1(a). At the locations cited in items 1(c), 1(e), 1(f), and 1(g),
U.S. Steel had concluded that its employees were not exposed to a hazard. As we have shown
by affirming violations of the general duty clause at some of these locations, we do not
agree with all of U.S. Steel's judgments. However these actions are certainly not
characteristic of an employer who willfully violates the Act.[[5]]

Accordingly, we conclude that the item 1(b), 1(d), and 1(e) of citation 2 are not properly
characterized as willful.

In summary, Chairman Buckley would affirm item 1(d) and vacate
items 1(a), 1(b), 1(c), 1(e), 1(f), and 1(g). Commissioner Rader would affirm items 1(b),
1(d), and 1(e) and vacate items 1(a), 1(c) 1(f), and 1(g). Commissioner Wall would affirm
items 1(b), 1(c), 1(d), and 1(e) and vacate items 1(a), 1(f), and 1(g).

Penalty

Judge Goldstein assessed a $5,000 penalty. He found that U.S.
Steel violated the general duty clause as to the seven items of citations and held that
the violation was willful. We affirm his decision as to three of the items, but vacate the
willful characterization. In the circumstances, we conclude that a penalty of $500 is
appropriate.

Accordingly, the judge's decision finding items 1(a) through
1(g) of citation 2 to be willful reversed. Items 1(b), 1(d) and 1(e) are affirmed as
serious. Items 1(a), 1(c), 1(f) and 1(g) are vacated. A penalty of $500 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Mar. 4,1986

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 5(a)(1) provides that each employer "shall
furnish to each of his 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 to
his employees. . . ."

[[2]] Other documents, which are consistent with those
discussed, include: Safety Standards, Part 44 (Foundries), Michigan Dept. of Labor;
Factory Mutual System, Loss Prevention Data Sheet: High-Temperature Molten Materials (Dec.
1973) Accident Prevention Manual for Industrial Operations (7th Ed. 1974), National Safety
Council; The Making, Shaping and Treating Steel (9th Ed. 1971), United States Steel
Corporation; The Lifesaver: Blast Furnace Division, South Works, United States Steel
Corporation (undated).

[[3]] A management employee of U.S. Steel received serious
burns when he entered the track level under the cast house during a spill of molten metal.
It was not established whether the burns resulted from a molten metal-water explosion or
from contact with molten metal.

[[4]] The Secretary and the judge also relied on U.S. Steel's
safety manual, which the Secretary claims shows that U.S. Steel actually recognized that
there is a hazard whenever molten metal is poured or transferred over any water. However,
in light of the testimony of U.S. Steel's witnesses about their experience with and
understanding of the conditions in the industry, we conclude that this manual cannot be
viewed as establishing the scope of the hazard recognized by U.S. Steel. An employer may
understand that a significant hazard exists under certain particular circumstances, but
formulate a more general rule mandating such precautions as to promote conditions
absolutely eliminating any possibility that the hazardous circumstances may come to exist.

[[5]] The Secretary also relies on a 1977 citation alleging the
existence of molten metal-water explosion hazards at South Works. Although that citation
became the final order of the Commission, it does not support the Secretary's contentions