Hayes-Albion Corporation

Plain-English summary

A fire in Hayes-Albion’s iron foundry required water to be sprayed into exhaust ductwork, and the water drained onto the floor near molten-metal operations. OSHA alleged a willful general duty clause violation based on the risk that molten metal could encapsulate water and cause an explosion. The judge vacated the citation because the Secretary did not prove that ladles traveled over the water or that water reached a location where a molten-metal spill could fall directly onto it. Chairman Buckley agreed that the specific explosion hazard was not established. Commissioner Cleary would have found a nonwillful violation because large amounts of metal were handled only feet from water and operations continued before the situation was fully controlled. The equally divided Commission left the judge’s vacation in place without precedential value on the merits; the release does not state a penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Willful molten-metal and water citation remained vacated after an equal division.
• Key point: The Commission did not reach a majority holding on how close molten metal and water must be to establish the recognized explosion hazard.

Full text (OSHRC public release)

Docket No. 80-7386

SECRETARY OF LABOR,

Complainant,

v.

HAYES-ALBION CORPORATION,

Respondent.

UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, LOCAL 1644,

Authorized Employee

Representative.

OSHRC Docket No. 80-7386

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

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 under the Act and has
no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The issue on review is whether Administrative Law Judge James D. Burroughs
erred in vacating a citation that was issued to Hayes-Albion Corporation.  The
citation alleged that Hayes-Albion failed to free its Tiffin, Ohio, grey iron foundry of a
molten metal-water explosion hazard in willful violation of section 5(a)(1) of the Act, 29
U.S.C. � 654(a)(1).[[1]]

The alleged violation took place in Hayes-Albion's disamatic molding
department.  In his decision, Judge Burroughs provided a description of the
department and the events that preceded the alleged violation:

The disamatic molding department . . . contains three disamatic machines,
three autopour vessels and three molding lines, all of which are parallel to each other.
 Aisleways exist between machines one and two and between machines two and
three.  The mold lines are approximately 10 to 12 feet apart.  [The autopour
vessels are 4 feet wide and 7 to 8 feet apart.]  The disamatic machines produce a
continuous line of molds made of sand.  The molds move down a rail to a position
under the autopour vessel where they are filled with molten iron.  After being filled
with molten iron, the molds are pushed to a meshbelt where they proceed to the casting
handling system.

On the morning of October 16, 1980, just prior to 7:00 a.m., all three
disamatic machines were started and commenced pushing out molds.  Once the molds were
underneath the autopour vessels, the operators called for iron.  The autopour vessel
for disamatic machine number three was the first to receive iron.  The autopour
vessel for disamatic machine number one was the next to receive iron.  The operator
for disamatic machine number one experienced difficulty in lifting the rod in the autopour
vessel so he could get a proper pour.  During the process of adjusting the rod, the
rod came off the nozzle, splattered iron and commenced a fire.  The fire occurred
around 7:00 a.m.  Prior to the commencement of the fire, the autopour vessel for
disamatic machine number two had not received any iron.

The fire occurred immediately above disamatic machine number one and spread
into the exhaust ductwork.  The fire brigade was called and an attempt was made to
extinguish the fire by using dry chemicals.  While the blaze immediately above the
machine was extinguished by the dry chemicals, employees were unable to extinguish the
blaze in the exhaust stack.  When efforts to extinguish the blaze in the exhaust
stack by dry chemicals proved unsuccessful, a decision was made to use water to extinguish
the blaze.  A two-and-a-half-inch hose with a variable nozzle was used to furnish the
water to extinguish the flame.  The nozzle was set on a fog spray and directed inside
the ductwork from the roof.  After seven to ten minutes of applying water, the fire
was extinguished and the use of water was ceased.

Water from the fire hose drained down the inside of the ductwork to the floor
of the foundry.  Due to the configuration of the ventilation system, the water
drained to the foundry floor under disamatic machine number two and spread outward as it
accumulated on the floor. . . .

A monorail system is used to deliver molten iron in a ladle from the coreless
furnace area to the autopour vessels at the disamatic machines.  The system makes a
complete loop from the coreless furnace department to serve the disamatic machines.  
The normal operating procedure for the monorail is to approach the disamatic area from the
south and come first to disamatic machine number one.  The monorail would then
normally proceed to disamatic machines number two and number three.

Because of concern that the burning ductwork might fall on the monorail and
damage it, the monorails, which carried ladles of molten iron, were rerouted during the
fire so that they did not pass over autopour vessel number two, after deliveries were made
at autopour vessels number one and three.  During the cleanup, after the fire had
been extinguished, empty ladles were allowed to pass over autopour vessel number two.
 When water from the fire fighting efforts started to accumulate on the floor of the
disamatic area, Hayes-Albion directed a number of its employees to clean it up.  The
employees shoveled sand on the water, let the sand absorb the water and then removed the
sand.  They also fashioned dams in the aisles to prevent water from spreading
underneath autopour vessels and mold lines one and three.

During this cleanup period, which began soon after 7:30, Hayes-Albion was
"pigging" at autopour vessel number one--i.e., pouring metal that was at less
than production temperature into molds--because the heater that kept the metal in the
vessel at production temperature had failed.  At about 8:10, after the
"pigging" was concluded, the monorail delivered a fresh load of metal to
autopour vessel number one and the pouring of molds was resumed there.  Autopour
vessel number three was shut down briefly when the dry chemical from a fire extinguisher
filled the air in the disamatic area.  After the air in the area was cleared,
Hayes-Albion began pouring metal into molds at autopour vessel number three but stopped
pouring for about fifteen minutes between 7:30 and 8:00, because water was trickling
toward the autopour vessel.

Although no molten metal was spilled on the day of the fire, spills had
occurred in the disamatic department on previous occasions because of vessel burnout,
leaks from overfilled or separating molds, rods breaking in the autopour vessels, and
misalignment of the monorail ladle when metal was transferred from the ladle to the
autopour vessel.  If molten metal is spilled and encompasses a certain amount of
water, it nearly instantaneously heats the water far beyond the point at which the water
can accept heat without expanding rapidly.  The extremely rapid expansion in volume
can cause an explosion that may project molten metal outward with great force.

According to the Secretary, two procedures allegedly exposed Hayes-Albion's
employees to an explosion hazard.  The first involved the transportation of molten
metal by monorail ladle over puddles of water and water-saturated sand.  The second
procedure cited was the pouring of molten metal into molds at autopour vessels number one
and three while water and water-saturated sand was under and adjacent to the autopour
platform.  The allegedly endangered employees were those cleaning up the water
underneath the autopour vessels and operating the disamatic machines.

The judge vacated the citation because the Secretary failed to show that the
existence of a hazard was caused by the "pourings of molten metal being made at
autopour vessels one and three while the water was being removed from the foundry
floor" and because the evidence showed that ladles of molten metal were not
transported over water or water-saturated sand by monorail.  The judge found that the
record did not establish how close the water came to the autopour vessels and mold lines.
  He found that the mere presence of molten metal and water in the same area did not
establish the existence of hazard.

In order to establish a violation of section 5(a)(1), the Secretary must
prove that (1) the hazard existed at the workplace, (2) the hazard was recognized by the
cited employer or generally by the employer's industry, (3) the hazard was causing or
likely to cause death or serious physical harm, and (4) there was a feasible means by
which the employer could have eliminated or materially reduced the hazard.  See
Phillips Petroleum Co ., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1984 CCH OSHD � 26,783
(No. 78-1816, 1984).  The members disagree on whether the judge erred in vacating the
citation.

Chairman Buckley would affirm the judge's decision and vacate the citation.
 The Secretary failed to establish that an explosion hazard existed at the
Hayes-Albion worksite.  The Secretary's expert witness, Dr. Sylvia, testified that,
where molten metal flows across a floor, it loses heat so that, upon contact with water,
there is no possibility of an explosion.  The only reaction would be a "fussing,
spitting action, not an explosion action."  Hayes-Albion's expert witness Bruner
gave similar testimony.  There was no testimony demonstrating the possibility of an
explosion from molten metal flowing toward and contacting water.  The record
conclusively demonstrates that the hazard of an explosion exists only if molten metal
falls on top of water and encapsulates the water.  In view of this, the Secretary had
to establish that molten metal could encapsulate water by falling directly onto the water
under and around the disamatic and autopour vessel number two.

At trial, the Secretary argued that molten metal was transported directly
over the water, because the monorail carried metal over disamatic machine number one and
because molten metal was poured in machines one and three while water was under or
adjacent to these machines.  The judge carefully considered the conflicting testimony
relied on by the Secretary and determined that the weight of the credible evidence
supported Hayes-Albion's contentions that molten metal was not transported over water and
that molten metal could not have fallen on the spilled water to create an explosion
hazard.[[2]]

Hayes-Albion presented evidence that it rerouted the ladles on the monorail
so that the ladies did not pass over the water at and around the number two disamatic and
autopour vessel.  The only testimony to the contrary came from Mitchell, an iron
pourer in an adjoining operation.  Judge Burroughs found that Mitchell was mistaken
in his testimony that he saw a full or half ladle of

molten metal pass over the water under the number two machine.  The judge noted that
Mitchell's account was disputed by two witnesses--Hayes-Albion's foundry superintendent
Smith and Hayes-Albion's melt supervisor-and that Mitchell's testimony was not
corroborated by three other witnesses--the fire brigade captain Spanfellner, the fire
brigade coordinator, and an autopour operator present on the deck at the three disamatic
and autopour vessels at the time of the fire and clean up.  Judge Burroughs found
that these five witnesses were in a much better position than Mitchell to observe the
monorail, that Mitchell's work station was located some fifty feet from the point at which
a ladle would pass over water, and that Mitchell was working with his back to the
disamatic area.  Chairman Buckley would add that these five witnesses had every
reason to be acutely aware of monorail activity during the clean up period.  The
Chairman therefore sees no reason to disturb the judge's evaluation of Mitchell's
testimony.  See C. Kaufman , Inc ., 78 OSAHRC 3/C1, 6 BNA OSHC
1295, 1297, 1977-78 CCH OSHD � 22,481, p. 27,099 (No. 14249, 1978).

Evidence is also lacking to establish the Secretary's other claim, that
Hayes-Albion created an explosion hazard by pouring molten metal into molds at the number
one and number three autopour vessels while there was water and water-saturated sand under
and around the number two machine.  As the judge states, the parties disputed whether
the water under the number two disamatic and autopour vessel had "spread into the
operational areas of disamatic machines one and three and the autopour vessels for those
machine."  The parties each presented several witnesses describing the extent of
the water in relation to the number one and number three disamatic and autopour vessels.
  However, as the judge found, none of the witnesses gave clear testimony showing how
close the water came to the number one and number three machines and there was no
testimony stating that the water was ever directly under either machine when any pour from
a ladle occurred.  Moreover, on the basis of the testimony of Hayes-Albion's foundry
superintendent, the judge found that "[t]he evidence strongly shows that respondent
took immediate action to prevent the water from flowing to disamatic machines one and
three."  The judge noted that even the Secretary's witness Spanfellner, who was
the fire brigade captain present at the time and a union safety representative, testified
that employees were shoveling sand onto the water when he came from the roof to the floor
after extinguishing the blaze.  Other witnesses presented by the Secretary gave
similar testimony.  The judge's findings that the water was confined under and around
the number two machine, which was not in operation, and that there was insufficient
evidence to establish how close the water came to the two machines in operation are fully
supported by the record and should be affirmed.

Moreover, the number one machine did not even contain molten metal at the
superheated temperatures necessary to cause an explosion hazard because the metal was
being pigged out.  Only after the water under machine number two was covered with
sand and substantially removed was pouring at the higher temperatures resumed at machine
number one.  The testimony indicates that the number three machine was the least
affected by the water and was shut down when water started to trickle toward it.  The
Secretary therefore failed to establish that any operations at the number one and number
three machines created a possibility of explosion from molten metal falling on top of and
encapsulating water.  Indeed, the authorized employee representative who filed the
petition for review in this case argues only that there was a potential for injury because
of the proximity of molten metal to water and water-saturated sand.  Neither the
Secretary nor the authorized employee representative asserts that there was proof of a
hazard of explosion from molten metal falling directly onto and encapsulating water during
the pouring operation on machines one and three.  Because the record does not
demonstrate this, Chairman Buckley would accept the judge's credibility findings, affirm
the judge's decision and vacate the citation.

Commissioner Cleary would find a violation.  It is clear from the record
that the foundry industry, safety experts familiar with the foundry industry, and
Hayes-Albion itself recognized that the encompassing of water by molten metal creates a
severe explosion hazard.  Indeed, two citations involving this same hazard had been
issued to Hayes-Albion before the inspection in this case. Commissioner Cleary also finds
that it is self-evident that conditions in Hayes-Albion's disamatic area could cause death
or serious physical harm to employees cleaning up the water.  Only small amounts of
water and molten metal (less than are present here) are needed to produce an explosion
generating a force of 58,000 foot-pounds, the equivalent of a quarter pound of TNT.
 Yet, in the disamatic area, large amounts of water had spilled within only feet and
inches from sources of molten metal, such as autopour vessels, ladles and molds, all of
which were known to leak and spill.  To vacate this citation because the Secretary
failed to prove at a hearing that water happened to trickle directly under molten metal
does not at all come to grips with the critical point of this case: At the only relevant
time Hayes-Albion could not have had any assurance that molten metal would not have
dropped into the water. When the alleged violation occurred, water was leaking under and
near autopour vessels containing molten metal.  Yet, Hayes-Albion delivered a ladle
to autopour vessel number one before the water near it had been removed.  It allowed
autopour vessel number three to continue operating while water was still draining out of
the ductwork and before the water had been cleaned up from the floor.  The only
question remaining therefore is whether the actions Hayes-Albion did take removed or
materially reduced the explosion hazard presented by the accumulation of water.  See
Chevron Oil Co ., 83 OSAHRC 19/B2, 11 BNA OSHC 1329, 1331, 1983-84 CCH OSHD �
26,507, p. 33,722 (No. 10799, 1983), pet. for rev. filed , No. 83-4371 (5th Cir.
June 17, 1983).  For the reasons that follow, Commissioner Cleary would find that
they did not.

The autopour vessels are only seven to eight feet apart; the mold lines are
ten to twelve feet apart.  In his outline, Smith, Hayes-Albions' foundry
superintendent, shows the water as covering two-thirds of the aisle between autopour
vessel number one and two.  Lieghty, the Disa mold supervisor, testified that a dam
was built to keep the water from underneath autopour vessel number one.  Two of the
Secretary's witnesses, Spanfellner and Albee, each placed the outer edge of the water at
autopour vessel number one approximately a third of the way underneath the four foot-wide
autopour vessel.  Spanfellner testified that there was still a soupy mixture of sand
and water within a few feet of autopour vessel number one when Hayes-Albion started to
pour molds again after 8 o'clock.

Judge Burroughs held that a prerequisite to proof of an explosion hazard was
a showing that molten metal could fall into water.  He stated that he was unable to
determine from the testimony and outlines of the witnesses how many feet the water was
located from the autopour vessels or mold lines.  The judge held that only evidence
demonstrating that a spill of molten iron would have contacted water would demonstrate the
existence of a hazard.  But, even if Smith's and Lieghty's views of the extent of the
water are credited, the clear possibility of an explosion exists when as much as 1 1/2
tons of molten metal is poured into an autopour vessel a few feet--and certainly no more
than 8 feet--from the water.  As Dr. Sylvia, the Secretary's expert witness,
testified, if a mispour should occur, the molten metal could have flowed out of the
ladle--the top of which is as high as thirteen feet above ground--and landed only a few
feet from the water.  Hayes-Albion's efforts to keep the water away from autopour
vessel number one therefore cannot be said to have removed or materially reduced the
explosion hazard to the extent feasible.

The same is true with respect to autopour vessel number three.  During
the cleanup, Hayes-Albion continued to deliver ladles of metal and pour molds at autopour
vessel number three.  Smith testified that vessel number three did not present a
hazard because it was remote from the water.  However, he also testified that soon
after he returned to the disamatic floor from the roof, he observed a place underneath the
ductwork "where the majority of the water was coming down" or "dripping
out."  Although the water that continued to drain from the ductwork followed an
uncertain path, Smith did not immediately order vessel number three shut down, though he
could have done so.  Instead, he decided to take the risk that the water would not
trickle under the vessel.  Only after Smith actually saw water trickling underneath
vessel number three did he order it shut down.  That he won this gamble is fortunate,
but it is clear that Hayes-Albion continued to pour iron in a very volatile situation and
before it had been brought under control.  The general duty clause of the Act
requires employers to take feasible steps to prevent hazardous conditions from threatening
to become uncontrollable.  Hayes-Albion did not take such steps.

Commissioner Cleary would therefore conclude that by delivering ladles of
metal at autopour vessels number one and three when water was no more than 7 to 8 feet
away, and pouring metal at autopour vessel number three when water was trickling towards
it Hayes-Albion failed to free or materially reduce to the extent feasible the explosion
hazard in its disamatic area.  He would accordingly affirm the section 5(a)(1)
citation and reverse the judge's decision.  However, he would not characterize
Hayes-Albion's conduct as "willful" within the meaning of section 17(a) of the
Act, 29 U.S.C. � 666(a).  It did take various steps to reduce the hazard.  Its
conduct did not demonstrate intentional disregard or plain indifference to the Act.

The two Commission members are divided on whether the judge erred in his
disposition in this case.[[3]]  To resolve this impasse and to permit this case to
proceed to a final resolution, the members have agreed to affirm the judge's decision but
accord it the precedential value of an unreviewed judge's decision.  See Life
Science Products Co ., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD � 22,313
(No. 14910, 1977), aff'd sub nom . Moore v. OSHRC , 591 F.2d 991 (4th
Cir.1979).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 17 1985

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 are likely to cause death or serious physical harm to his
employees . . . ."

[[2]] In his letter in lieu of a brief on review, the Secretary stated that he would not
present any argument in favor of reversing the judge's decision and affirming the citation
because the judge's findings were based on credibility determinations.

[[3]] As established by the Act, the Commission is composed of three members.  
Section 12(a), 29 U.S.C. � 661(a).  Under section 12(f) of the Act, 29 U.S.C. �
661(e).  Official action can be taken by the Commission with the affirmative vote of
at least two members.  Because of a vacancy, the Commission is currently composed of
two members.