“SECRETARY OF LABOR,Complainant,v.HAYES-ALBION CORPORATION,Respondent.UNITED AUTOMOBILE, AEROSPACEAND AGRICULTURAL IMPLEMENTWORKERS OF AMERICA, LOCAL 1644,Authorized EmployeeRepresentative.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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _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-AlbionCorporation. The citation alleged that Hayes-Albion failed to free itsTiffin, Ohio, grey iron foundry of a molten metal-water explosion hazardin 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 moldingdepartment. In his decision, Judge Burroughs provided a description ofthe department and the events that preceded the alleged violation:The disamatic molding department . . . contains three disamaticmachines, three autopour vessels and three molding lines, all of whichare parallel to each other. Aisleways exist between machines one andtwo and between machines two and three. The mold lines areapproximately 10 to 12 feet apart. [The autopour vessels are 4 feetwide and 7 to 8 feet apart.] The disamatic machines produce acontinuous line of molds made of sand. The molds move down a rail to aposition under the autopour vessel where they are filled with molteniron. After being filled with molten iron, the molds are pushed to ameshbelt where they proceed to the casting handling system.On the morning of October 16, 1980, just prior to 7:00 a.m., all threedisamatic machines were started and commenced pushing out molds. Oncethe molds were underneath the autopour vessels, the operators called foriron. The autopour vessel for disamatic machine number three was thefirst to receive iron. The autopour vessel for disamatic machine numberone was the next to receive iron. The operator for disamatic machinenumber one experienced difficulty in lifting the rod in the autopourvessel so he could get a proper pour. During the process of adjustingthe rod, the rod came off the nozzle, splattered iron and commenced afire. The fire occurred around 7:00 a.m. Prior to the commencement ofthe fire, the autopour vessel for disamatic machine number two had notreceived any iron.The fire occurred immediately above disamatic machine number one andspread into the exhaust ductwork. The fire brigade was called and anattempt was made to extinguish the fire by using dry chemicals. Whilethe blaze immediately above the machine was extinguished by the drychemicals, employees were unable to extinguish the blaze in the exhauststack. When efforts to extinguish the blaze in the exhaust stack by drychemicals proved unsuccessful, a decision was made to use water toextinguish the blaze. A two-and-a-half-inch hose with a variable nozzlewas used to furnish the water to extinguish the flame. The nozzle wasset on a fog spray and directed inside the ductwork from the roof. After seven to ten minutes of applying water, the fire was extinguishedand the use of water was ceased.Water from the fire hose drained down the inside of the ductwork to thefloor of the foundry. Due to the configuration of the ventilationsystem, the water drained to the foundry floor under disamatic machinenumber two and spread outward as it accumulated on the floor. . . .A monorail system is used to deliver molten iron in a ladle from thecoreless furnace area to the autopour vessels at the disamaticmachines. The system makes a complete loop from the coreless furnacedepartment to serve the disamatic machines. The normal operatingprocedure for the monorail is to approach the disamatic area from thesouth and come first to disamatic machine number one. The monorailwould then normally proceed to disamatic machines number two and numberthree.Because of concern that the burning ductwork might fall on the monorailand damage it, the monorails, which carried ladles of molten iron, werererouted during the fire so that they did not pass over autopour vesselnumber two, after deliveries were made at autopour vessels number oneand three. During the cleanup, after the fire had been extinguished,empty ladles were allowed to pass over autopour vessel number two. Whenwater from the fire fighting efforts started to accumulate on the floorof the disamatic area, Hayes-Albion directed a number of its employeesto clean it up. The employees shoveled sand on the water, let the sandabsorb the water and then removed the sand. They also fashioned dams inthe aisles to prevent water from spreading underneath autopour vesselsand mold lines one and three.During this cleanup period, which began soon after 7:30, Hayes-Albionwas \”pigging\” at autopour vessel number one–i.e., pouring metal thatwas at less than production temperature into molds–because the heaterthat kept the metal in the vessel at production temperature had failed. At about 8:10, after the \”pigging\” was concluded, the monorail delivereda fresh load of metal to autopour vessel number one and the pouring ofmolds was resumed there. Autopour vessel number three was shut downbriefly when the dry chemical from a fire extinguisher filled the air inthe disamatic area. After the air in the area was cleared, Hayes-Albionbegan pouring metal into molds at autopour vessel number three butstopped pouring for about fifteen minutes between 7:30 and 8:00, becausewater was trickling toward the autopour vessel.Although no molten metal was spilled on the day of the fire, spills hadoccurred in the disamatic department on previous occasions because ofvessel burnout, leaks from overfilled or separating molds, rods breakingin the autopour vessels, and misalignment of the monorail ladle whenmetal was transferred from the ladle to the autopour vessel. If moltenmetal is spilled and encompasses a certain amount of water, it nearlyinstantaneously heats the water far beyond the point at which the watercan accept heat without expanding rapidly. The extremely rapidexpansion in volume can cause an explosion that may project molten metaloutward with great force.According to the Secretary, two procedures allegedly exposedHayes-Albion’s employees to an explosion hazard. The first involved thetransportation of molten metal by monorail ladle over puddles of waterand water-saturated sand. The second procedure cited was the pouring ofmolten metal into molds at autopour vessels number one and three whilewater and water-saturated sand was under and adjacent to the autopourplatform. The allegedly endangered employees were those cleaning up thewater underneath the autopour vessels and operating the disamatic machines.The judge vacated the citation because the Secretary failed to show thatthe existence of a hazard was caused by the \”pourings of molten metalbeing made at autopour vessels one and three while the water was beingremoved from the foundry floor\” and because the evidence showed thatladles of molten metal were not transported over water orwater-saturated sand by monorail. The judge found that the record didnot establish how close the water came to the autopour vessels and moldlines. He found that the mere presence of molten metal and water inthe same area did not establish the existence of hazard.In order to establish a violation of section 5(a)(1), the Secretary mustprove that (1) the hazard existed at the workplace, (2) the hazard wasrecognized by the cited employer or generally by the employer’sindustry, (3) the hazard was causing or likely to cause death or seriousphysical harm, and (4) there was a feasible means by which the employercould have eliminated or materially reduced the hazard. _See_ _PhillipsPetroleum 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 invacating the citation.Chairman Buckley would affirm the judge’s decision and vacate thecitation. The Secretary failed to establish that an explosion hazardexisted at the Hayes-Albion worksite. The Secretary’s expert witness,Dr. Sylvia, testified that, where molten metal flows across a floor, itloses heat so that, upon contact with water, there is no possibility ofan explosion. The only reaction would be a \”fussing, spitting action,not an explosion action.\” Hayes-Albion’s expert witness Bruner gavesimilar testimony. There was no testimony demonstrating the possibilityof an explosion from molten metal flowing toward and contacting water. The record conclusively demonstrates that the hazard of an explosionexists only if molten metal falls on top of water and encapsulates thewater. In view of this, the Secretary had to establish that moltenmetal could encapsulate water by falling directly onto the water underand around the disamatic and autopour vessel number two.At trial, the Secretary argued that molten metal was transporteddirectly over the water, because the monorail carried metal overdisamatic machine number one and because molten metal was poured inmachines one and three while water was under or adjacent to thesemachines. The judge carefully considered the conflicting testimonyrelied on by the Secretary and determined that the weight of thecredible evidence supported Hayes-Albion’s contentions that molten metalwas not transported over water and that molten metal could not havefallen on the spilled water to create an explosion hazard.[[2]]Hayes-Albion presented evidence that it rerouted the ladles on themonorail so that the ladies did not pass over the water at and aroundthe number two disamatic and autopour vessel. The only testimony to thecontrary came from Mitchell, an iron pourer in an adjoining operation. Judge Burroughs found that Mitchell was mistaken in his testimony thathe saw a full or half ladle ofmolten metal pass over the water under the number two machine. Thejudge noted that Mitchell’s account was disputed by twowitnesses–Hayes-Albion’s foundry superintendent Smith andHayes-Albion’s melt supervisor-and that Mitchell’s testimony was notcorroborated by three other witnesses–the fire brigade captainSpanfellner, the fire brigade coordinator, and an autopour operatorpresent on the deck at the three disamatic and autopour vessels at thetime of the fire and clean up. Judge Burroughs found that these fivewitnesses were in a much better position than Mitchell to observe themonorail, that Mitchell’s work station was located some fifty feet fromthe point at which a ladle would pass over water, and that Mitchell wasworking with his back to the disamatic area. Chairman Buckley would addthat these five witnesses had every reason to be acutely aware ofmonorail activity during the clean up period. The Chairman thereforesees no reason to disturb the judge’s evaluation of Mitchell’stestimony. _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, thatHayes-Albion created an explosion hazard by pouring molten metal intomolds at the number one and number three autopour vessels while therewas water and water-saturated sand under and around the number twomachine. As the judge states, the parties disputed whether the waterunder the number two disamatic and autopour vessel had \”spread into theoperational areas of disamatic machines one and three and the autopourvessels for those machine.\” The parties each presented severalwitnesses describing the extent of the water in relation to the numberone and number three disamatic and autopour vessels. However, as thejudge found, none of the witnesses gave clear testimony showing howclose the water came to the number one and number three machines andthere was no testimony stating that the water was ever directly undereither machine when any pour from a ladle occurred. Moreover, on thebasis of the testimony of Hayes-Albion’s foundry superintendent, thejudge found that \”[t]he evidence strongly shows that respondent tookimmediate action to prevent the water from flowing to disamatic machinesone and three.\” The judge noted that even the Secretary’s witnessSpanfellner, who was the fire brigade captain present at the time and aunion safety representative, testified that employees were shovelingsand onto the water when he came from the roof to the floor afterextinguishing the blaze. Other witnesses presented by the Secretarygave similar testimony. The judge’s findings that the water wasconfined under and around the number two machine, which was not inoperation, and that there was insufficient evidence to establish howclose the water came to the two machines in operation are fullysupported by the record and should be affirmed.Moreover, the number one machine did not even contain molten metal atthe superheated temperatures necessary to cause an explosion hazardbecause the metal was being pigged out. Only after the water undermachine number two was covered with sand and substantially removed waspouring at the higher temperatures resumed at machine number one. Thetestimony indicates that the number three machine was the least affectedby the water and was shut down when water started to trickle toward it. The Secretary therefore failed to establish that any operations at thenumber one and number three machines created a possibility of explosionfrom molten metal falling on top of and encapsulating water. Indeed,the authorized employee representative who filed the petition for reviewin this case argues only that there was a potential for injury becauseof the proximity of molten metal to water and water-saturated sand. Neither the Secretary nor the authorized employee representative assertsthat there was proof of a hazard of explosion from molten metal fallingdirectly onto and encapsulating water during the pouring operation onmachines one and three. Because the record does not demonstrate this,Chairman Buckley would accept the judge’s credibility findings, affirmthe judge’s decision and vacate the citation.Commissioner Cleary would find a violation. It is clear from the recordthat the foundry industry, safety experts familiar with the foundryindustry, and Hayes-Albion itself recognized that the encompassing ofwater by molten metal creates a severe explosion hazard. Indeed, twocitations involving this same hazard had been issued to Hayes-Albionbefore the inspection in this case. Commissioner Cleary also finds thatit is self-evident that conditions in Hayes-Albion’s disamatic areacould cause death or serious physical harm to employees cleaning up thewater. Only small amounts of water and molten metal (less than arepresent here) are needed to produce an explosion generating a force of58,000 foot-pounds, the equivalent of a quarter pound of TNT. Yet, inthe disamatic area, large amounts of water had spilled within only feetand inches from sources of molten metal, such as autopour vessels,ladles and molds, all of which were known to leak and spill. To vacatethis citation because the Secretary failed to prove at a hearing thatwater happened to trickle directly under molten metal does not at allcome to grips with the critical point of this case: At the only relevanttime Hayes-Albion could not have had any assurance that molten metalwould not have dropped into the water. When the alleged violationoccurred, water was leaking under and near autopour vessels containingmolten metal. Yet, Hayes-Albion delivered a ladle to autopour vesselnumber one before the water near it had been removed. It allowedautopour vessel number three to continue operating while water was stilldraining out of the ductwork and before the water had been cleaned upfrom the floor. The only question remaining therefore is whether theactions Hayes-Albion did take removed or materially reduced theexplosion hazard presented by the accumulation of water. _See_ _ChevronOil 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, CommissionerCleary would find that they did not.The autopour vessels are only seven to eight feet apart; the mold linesare ten to twelve feet apart. In his outline, Smith, Hayes-Albions’foundry superintendent, shows the water as covering two-thirds of theaisle between autopour vessel number one and two. Lieghty, the Disamold supervisor, testified that a dam was built to keep the water fromunderneath autopour vessel number one. Two of the Secretary’switnesses, Spanfellner and Albee, each placed the outer edge of thewater at autopour vessel number one approximately a third of the wayunderneath the four foot-wide autopour vessel. Spanfellner testifiedthat there was still a soupy mixture of sand and water within a few feetof autopour vessel number one when Hayes-Albion started to pour moldsagain after 8 o’clock.Judge Burroughs held that a prerequisite to proof of an explosion hazardwas a showing that molten metal could fall into water. He stated thathe was unable to determine from the testimony and outlines of thewitnesses how many feet the water was located from the autopour vesselsor mold lines. The judge held that only evidence demonstrating that aspill of molten iron would have contacted water would demonstrate theexistence of a hazard. But, even if Smith’s and Lieghty’s views of theextent of the water are credited, the clear possibility of an explosionexists when as much as 1 1\/2 tons of molten metal is poured into anautopour vessel a few feet–and certainly no more than 8 feet–from thewater. As Dr. Sylvia, the Secretary’s expert witness, testified, if amispour should occur, the molten metal could have flowed out of theladle–the top of which is as high as thirteen feet above ground–andlanded only a few feet from the water. Hayes-Albion’s efforts to keepthe water away from autopour vessel number one therefore cannot be saidto have removed or materially reduced the explosion hazard to the extentfeasible.The same is true with respect to autopour vessel number three. Duringthe cleanup, Hayes-Albion continued to deliver ladles of metal and pourmolds at autopour vessel number three. Smith testified that vesselnumber three did not present a hazard because it was remote from thewater. However, he also testified that soon after he returned to thedisamatic floor from the roof, he observed a place underneath theductwork \”where the majority of the water was coming down\” or \”drippingout.\” Although the water that continued to drain from the ductworkfollowed an uncertain path, Smith did not immediately order vesselnumber three shut down, though he could have done so. Instead, hedecided to take the risk that the water would not trickle under thevessel. Only after Smith actually saw water trickling underneath vesselnumber three did he order it shut down. That he won this gamble isfortunate, but it is clear that Hayes-Albion continued to pour iron in avery volatile situation and before it had been brought under control. The general duty clause of the Act requires employers to take feasiblesteps to prevent hazardous conditions from threatening to becomeuncontrollable. Hayes-Albion did not take such steps.Commissioner Cleary would therefore conclude that by delivering ladlesof metal at autopour vessels number one and three when water was no morethan 7 to 8 feet away, and pouring metal at autopour vessel number threewhen water was trickling towards it Hayes-Albion failed to free ormaterially reduce to the extent feasible the explosion hazard in itsdisamatic area. He would accordingly affirm the section 5(a)(1)citation and reverse the judge’s decision. However, he would notcharacterize Hayes-Albion’s conduct as \”willful\” within the meaning ofsection 17(a) of the Act, 29 U.S.C. ? 666(a). It did take various stepsto reduce the hazard. Its conduct did not demonstrate intentionaldisregard or plain indifference to the Act.The two Commission members are divided on whether the judge erred in hisdisposition in this case.[[3]] To resolve this impasse and to permitthis case to proceed to a final resolution, the members have agreed toaffirm the judge’s decision but accord it the precedential value of anunreviewed judge’s decision. _See_ _Life Science Products Co_., 77OSAHRC 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 COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 17 1985————————————————————————FOOTNOTES:[[1]] Section 5(a)(1) provides that each employer \”shall furnish to eachof his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death orserious physical harm to his employees . . . .\”[[2]] In his letter in lieu of a brief on review, the Secretary statedthat he would not present any argument in favor of reversing the judge’sdecision and affirming the citation because the judge’s findings werebased on credibility determinations.[[3]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Under section 12(f) ofthe Act, 29 U.S.C. ? 661(e). Official action can be taken by theCommission with the affirmative vote of at least two members. Becauseof a vacancy, the Commission is currently composed of two members. “