“Docket No. 80-7386 SECRETARY OF LABOR, Complainant,v.HAYES-ALBION CORPORATION, Respondent.UNITED AUTOMOBILE, AEROSPACEAND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 1644, Authorized EmployeeRepresentative.OSHRC Docket No. 80-7386DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether Administrative Law Judge James D. Burroughserred in vacating a citation that was issued to Hayes-Albion Corporation.\u00a0 Thecitation alleged that Hayes-Albion failed to free its Tiffin, Ohio, grey iron foundry of amolten metal-water explosion hazard in willful violation of section 5(a)(1) of the Act, 29U.S.C. ? 654(a)(1).[[1]]The alleged violation took place in Hayes-Albion’s disamatic moldingdepartment.\u00a0 In his decision, Judge Burroughs provided a description of thedepartment 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.\u00a0Aisleways exist between machines one and two and between machines two andthree.\u00a0 The mold lines are approximately 10 to 12 feet apart.\u00a0 [The autopourvessels are 4 feet wide and 7 to 8 feet apart.]\u00a0 The disamatic machines produce acontinuous line of molds made of sand.\u00a0 The molds move down a rail to a positionunder the autopour vessel where they are filled with molten iron.\u00a0 After being filledwith molten iron, the molds are pushed to a meshbelt where they proceed to the castinghandling 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.\u00a0 Once the molds wereunderneath the autopour vessels, the operators called for iron.\u00a0 The autopour vesselfor disamatic machine number three was the first to receive iron.\u00a0 The autopourvessel for disamatic machine number one was the next to receive iron.\u00a0 The operatorfor disamatic machine number one experienced difficulty in lifting the rod in the autopourvessel so he could get a proper pour.\u00a0 During the process of adjusting the rod, therod came off the nozzle, splattered iron and commenced a fire.\u00a0 The fire occurredaround 7:00 a.m.\u00a0 Prior to the commencement of the fire, the autopour vessel fordisamatic machine number two had not received any iron.The fire occurred immediately above disamatic machine number one and spreadinto the exhaust ductwork.\u00a0 The fire brigade was called and an attempt was made toextinguish the fire by using dry chemicals.\u00a0 While the blaze immediately above themachine was extinguished by the dry chemicals, employees were unable to extinguish theblaze in the exhaust stack.\u00a0 When efforts to extinguish the blaze in the exhauststack by dry chemicals proved unsuccessful, a decision was made to use water to extinguishthe blaze.\u00a0 A two-and-a-half-inch hose with a variable nozzle was used to furnish thewater to extinguish the flame.\u00a0 The nozzle was set on a fog spray and directed insidethe ductwork from the roof.\u00a0 After seven to ten minutes of applying water, the firewas extinguished and the use of water was ceased.Water from the fire hose drained down the inside of the ductwork to the floorof the foundry.\u00a0 Due to the configuration of the ventilation system, the waterdrained to the foundry floor under disamatic machine number two and spread outward as itaccumulated on the floor. . . .A monorail system is used to deliver molten iron in a ladle from the corelessfurnace area to the autopour vessels at the disamatic machines.\u00a0 The system makes acomplete loop from the coreless furnace department to serve the disamatic machines. \u00a0The normal operating procedure for the monorail is to approach the disamatic area from thesouth and come first to disamatic machine number one.\u00a0 The monorail would thennormally proceed to disamatic machines number two and number three.Because of concern that the burning ductwork might fall on the monorail anddamage it, the monorails, which carried ladles of molten iron, were rerouted during thefire so that they did not pass over autopour vessel number two, after deliveries were madeat autopour vessels number one and three.\u00a0 During the cleanup, after the fire hadbeen extinguished, empty ladles were allowed to pass over autopour vessel number two.\u00a0When water from the fire fighting efforts started to accumulate on the floor of thedisamatic area, Hayes-Albion directed a number of its employees to clean it up.\u00a0 Theemployees shoveled sand on the water, let the sand absorb the water and then removed thesand.\u00a0 They also fashioned dams in the aisles to prevent water from spreadingunderneath 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 lessthan production temperature into molds–because the heater that kept the metal in thevessel at production temperature had failed.\u00a0 At about 8:10, after the\”pigging\” was concluded, the monorail delivered a fresh load of metal toautopour vessel number one and the pouring of molds was resumed there.\u00a0 Autopourvessel number three was shut down briefly when the dry chemical from a fire extinguisherfilled the air in the disamatic area.\u00a0 After the air in the area was cleared,Hayes-Albion began pouring metal into molds at autopour vessel number three but stoppedpouring for about fifteen minutes between 7:30 and 8:00, because water was tricklingtoward 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 of vessel burnout,leaks from overfilled or separating molds, rods breaking in the autopour vessels, andmisalignment of the monorail ladle when metal was transferred from the ladle to theautopour vessel.\u00a0 If molten metal is spilled and encompasses a certain amount ofwater, it nearly instantaneously heats the water far beyond the point at which the watercan accept heat without expanding rapidly.\u00a0 The extremely rapid expansion in volumecan cause an explosion that may project molten metal outward with great force.According to the Secretary, two procedures allegedly exposed Hayes-Albion’semployees to an explosion hazard.\u00a0 The first involved the transportation of moltenmetal by monorail ladle over puddles of water and water-saturated sand.\u00a0 The secondprocedure cited was the pouring of molten metal into molds at autopour vessels number oneand three while water and water-saturated sand was under and adjacent to the autopourplatform.\u00a0 The allegedly endangered employees were those cleaning up the waterunderneath the autopour vessels and operating the disamatic machines.The judge vacated the citation because the Secretary failed to show that theexistence of a hazard was caused by the \”pourings of molten metal being made atautopour vessels one and three while the water was being removed from the foundryfloor\” and because the evidence showed that ladles of molten metal were nottransported over water or water-saturated sand by monorail.\u00a0 The judge found that therecord did not establish how close the water came to the autopour vessels and mold lines.\u00a0 He found that the mere presence of molten metal and water in the same area did notestablish 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 was recognized by thecited employer or generally by the employer’s industry, (3) the hazard was causing orlikely to cause death or serious physical harm, and (4) there was a feasible means bywhich the employer could have eliminated or materially reduced the hazard.\u00a0 SeePhillips Petroleum Co., 84 OSAHRC 2\/E7, 11 BNA OSHC 1776, 1984 CCH OSHD ? 26,783(No. 78-1816, 1984).\u00a0 The members disagree on whether the judge erred in vacating thecitation.Chairman Buckley would affirm the judge’s decision and vacate the citation.\u00a0The Secretary failed to establish that an explosion hazard existed at theHayes-Albion worksite.\u00a0 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.\u00a0 The only reaction would be a \”fussing,spitting action, not an explosion action.\”\u00a0 Hayes-Albion’s expert witness Brunergave similar testimony.\u00a0 There was no testimony demonstrating the possibility of anexplosion from molten metal flowing toward and contacting water.\u00a0 The recordconclusively demonstrates that the hazard of an explosion exists only if molten metalfalls on top of water and encapsulates the water.\u00a0 In view of this, the Secretary hadto establish that molten metal could encapsulate water by falling directly onto the waterunder and around the disamatic and autopour vessel number two.At trial, the Secretary argued that molten metal was transported directlyover the water, because the monorail carried metal over disamatic machine number one andbecause molten metal was poured in machines one and three while water was under oradjacent to these machines.\u00a0 The judge carefully considered the conflicting testimonyrelied on by the Secretary and determined that the weight of the credible evidencesupported Hayes-Albion’s contentions that molten metal was not transported over water andthat molten metal could not have fallen on the spilled water to create an explosionhazard.[[2]]Hayes-Albion presented evidence that it rerouted the ladles on the monorailso that the ladies did not pass over the water at and around the number two disamatic andautopour vessel.\u00a0 The only testimony to the contrary came from Mitchell, an ironpourer in an adjoining operation.\u00a0 Judge Burroughs found that Mitchell was mistakenin his testimony that he saw a full or half ladle ofmolten metal pass over the water under the number two machine.\u00a0 The judge noted thatMitchell’s account was disputed by two witnesses–Hayes-Albion’s foundry superintendentSmith and Hayes-Albion’s melt supervisor-and that Mitchell’s testimony was notcorroborated by three other witnesses–the fire brigade captain Spanfellner, the firebrigade coordinator, and an autopour operator present on the deck at the three disamaticand autopour vessels at the time of the fire and clean up.\u00a0 Judge Burroughs foundthat these five witnesses were in a much better position than Mitchell to observe themonorail, that Mitchell’s work station was located some fifty feet from the point at whicha ladle would pass over water, and that Mitchell was working with his back to thedisamatic area.\u00a0 Chairman Buckley would add that these five witnesses had everyreason to be acutely aware of monorail activity during the clean up period.\u00a0 TheChairman therefore sees no reason to disturb the judge’s evaluation of Mitchell’stestimony.\u00a0 See C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC1295, 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 into molds at the numberone and number three autopour vessels while there was water and water-saturated sand underand around the number two machine.\u00a0 As the judge states, the parties disputed whetherthe water under the number two disamatic and autopour vessel had \”spread into theoperational areas of disamatic machines one and three and the autopour vessels for thosemachine.\”\u00a0 The parties each presented several witnesses describing the extent ofthe water in relation to the number one and number three disamatic and autopour vessels.\u00a0 However, as the judge found, none of the witnesses gave clear testimony showing howclose the water came to the number one and number three machines and there was notestimony stating that the water was ever directly under either machine when any pour froma ladle occurred.\u00a0 Moreover, on the basis of the testimony of Hayes-Albion’s foundrysuperintendent, the judge found that \”[t]he evidence strongly shows that respondenttook immediate action to prevent the water from flowing to disamatic machines one andthree.\”\u00a0 The judge noted that even the Secretary’s witness Spanfellner, who wasthe fire brigade captain present at the time and a union safety representative, testifiedthat employees were shoveling sand onto the water when he came from the roof to the floorafter extinguishing the blaze.\u00a0 Other witnesses presented by the Secretary gavesimilar testimony.\u00a0 The judge’s findings that the water was confined under and aroundthe number two machine, which was not in operation, and that there was insufficientevidence to establish how close 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 at thesuperheated temperatures necessary to cause an explosion hazard because the metal wasbeing pigged out.\u00a0 Only after the water under machine number two was covered withsand and substantially removed was pouring at the higher temperatures resumed at machinenumber one.\u00a0 The testimony indicates that the number three machine was the leastaffected by the water and was shut down when water started to trickle toward it.\u00a0 TheSecretary therefore failed to establish that any operations at the number one and numberthree machines created a possibility of explosion from molten metal falling on top of andencapsulating water.\u00a0 Indeed, the authorized employee representative who filed thepetition for review in this case argues only that there was a potential for injury becauseof the proximity of molten metal to water and water-saturated sand.\u00a0 Neither theSecretary nor the authorized employee representative asserts that there was proof of ahazard of explosion from molten metal falling directly onto and encapsulating water duringthe pouring operation on machines one and three.\u00a0 Because the record does notdemonstrate this, Chairman Buckley would accept the judge’s credibility findings, affirmthe judge’s decision and vacate the citation.Commissioner Cleary would find a violation.\u00a0 It is clear from the recordthat the foundry industry, safety experts familiar with the foundry industry, andHayes-Albion itself recognized that the encompassing of water by molten metal creates asevere explosion hazard.\u00a0 Indeed, two citations involving this same hazard had beenissued to Hayes-Albion before the inspection in this case. Commissioner Cleary also findsthat it is self-evident that conditions in Hayes-Albion’s disamatic area could cause deathor serious physical harm to employees cleaning up the water.\u00a0 Only small amounts ofwater and molten metal (less than are present here) are needed to produce an explosiongenerating a force of 58,000 foot-pounds, the equivalent of a quarter pound of TNT.\u00a0Yet, in the disamatic area, large amounts of water had spilled within only feet andinches from sources of molten metal, such as autopour vessels, ladles and molds, all ofwhich were known to leak and spill.\u00a0 To vacate this citation because the Secretaryfailed to prove at a hearing that water happened to trickle directly under molten metaldoes not at all come to grips with the critical point of this case: At the only relevanttime Hayes-Albion could not have had any assurance that molten metal would not havedropped into the water. When the alleged violation occurred, water was leaking under andnear autopour vessels containing molten metal.\u00a0 Yet, Hayes-Albion delivered a ladleto autopour vessel number one before the water near it had been removed.\u00a0 It allowedautopour vessel number three to continue operating while water was still draining out ofthe ductwork and before the water had been cleaned up from the floor.\u00a0 The onlyquestion remaining therefore is whether the actions Hayes-Albion did take removed ormaterially reduced the explosion hazard presented by the accumulation of water.\u00a0 SeeChevron 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).\u00a0 For the reasons that follow, Commissioner Cleary would find thatthey did not.The autopour vessels are only seven to eight feet apart; the mold lines areten to twelve feet apart.\u00a0 In his outline, Smith, Hayes-Albions’ foundrysuperintendent, shows the water as covering two-thirds of the aisle between autopourvessel number one and two.\u00a0 Lieghty, the Disa mold supervisor, testified that a damwas built to keep the water from underneath autopour vessel number one.\u00a0 Two of theSecretary’s witnesses, Spanfellner and Albee, each placed the outer edge of the water atautopour vessel number one approximately a third of the way underneath the four foot-wideautopour vessel.\u00a0 Spanfellner testified that there was still a soupy mixture of sandand water within a few feet of autopour vessel number one when Hayes-Albion started topour molds again after 8 o’clock.Judge Burroughs held that a prerequisite to proof of an explosion hazard wasa showing that molten metal could fall into water.\u00a0 He stated that he was unable todetermine from the testimony and outlines of the witnesses how many feet the water waslocated from the autopour vessels or mold lines.\u00a0 The judge held that only evidencedemonstrating that a spill of molten iron would have contacted water would demonstrate theexistence of a hazard.\u00a0 But, even if Smith’s and Lieghty’s views of the extent of thewater are credited, the clear possibility of an explosion exists when as much as 1 1\/2tons of molten metal is poured into an autopour vessel a few feet–and certainly no morethan 8 feet–from the water.\u00a0 As Dr. Sylvia, the Secretary’s expert witness,testified, if a mispour should occur, the molten metal could have flowed out of theladle–the top of which is as high as thirteen feet above ground–and landed only a fewfeet from the water.\u00a0 Hayes-Albion’s efforts to keep the water away from autopourvessel number one therefore cannot be said to have removed or materially reduced theexplosion hazard to the extent feasible.The same is true with respect to autopour vessel number three.\u00a0 Duringthe cleanup, Hayes-Albion continued to deliver ladles of metal and pour molds at autopourvessel number three.\u00a0 Smith testified that vessel number three did not present ahazard because it was remote from the water.\u00a0 However, he also testified that soonafter he returned to the disamatic floor from the roof, he observed a place underneath theductwork \”where the majority of the water was coming down\” or \”drippingout.\”\u00a0 Although the water that continued to drain from the ductwork followed anuncertain path, Smith did not immediately order vessel number three shut down, though hecould have done so.\u00a0 Instead, he decided to take the risk that the water would nottrickle under the vessel.\u00a0 Only after Smith actually saw water trickling underneathvessel number three did he order it shut down.\u00a0 That he won this gamble is fortunate,but it is clear that Hayes-Albion continued to pour iron in a very volatile situation andbefore it had been brought under control.\u00a0 The general duty clause of the Actrequires employers to take feasible steps to prevent hazardous conditions from threateningto become uncontrollable.\u00a0 Hayes-Albion did not take such steps.Commissioner Cleary would therefore conclude that by delivering ladles ofmetal at autopour vessels number one and three when water was no more than 7 to 8 feetaway, and pouring metal at autopour vessel number three when water was trickling towardsit Hayes-Albion failed to free or materially reduce to the extent feasible the explosionhazard in its disamatic area.\u00a0 He would accordingly affirm the section 5(a)(1)citation and reverse the judge’s decision.\u00a0 However, he would not characterizeHayes-Albion’s conduct as \”willful\” within the meaning of section 17(a) of theAct, 29 U.S.C. ? 666(a).\u00a0 It did take various steps to reduce the hazard.\u00a0 Itsconduct did not demonstrate intentional disregard or plain indifference to the Act.The two Commission members are divided on whether the judge erred in hisdisposition in this case.[[3]]\u00a0 To resolve this impasse and to permit this case toproceed to a final resolution, the members have agreed to affirm the judge’s decision butaccord it the precedential value of an unreviewed judge’s decision.\u00a0 See LifeScience 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 (4thCir.1979).FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED: APR 17 1985FOOTNOTES: [[1]] Section 5(a)(1) provides that each employer \”shall furnish to eachof his employees employment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or serious physical harm to hisemployees . . . .\”[[2]] In his letter in lieu of a brief on review, the Secretary stated that he would notpresent any argument in favor of reversing the judge’s decision and affirming the citationbecause the judge’s findings were based on credibility determinations.[[3]] As established by the Act, the Commission is composed of three members. \u00a0Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Under section 12(f) of the Act, 29 U.S.C. ?661(e).\u00a0 Official action can be taken by the Commission with the affirmative vote ofat least two members.\u00a0 Because of a vacancy, the Commission is currently composed oftwo members.\u00a0″