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

------------------------------------------------------------------------

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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