“SECRETARY OF LABOR,Complainantv.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 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 was establishedto resolve disputes arising out of enforcement actions brought by theSecretary of Labor (\”the Secretary\”) under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).The United States Steel Corporation (\”U.S. Steel\”) produces iron andsteel at its South Works facility in Chicago, Illinois. Following aMarch 1979 inspection of two large areas of the facility by an OSHAcompliance officer, the Secretary issued a citation alleging that U.S.Steel had willfully violated the general duty clause, section 5(a)(1) ofthe Act, 29 U.S.C. ? 654(a)(1)[[1]]. The citation alleged that at sevenlocations at South Works:Adequate precautions were not taken to protect employees . . . from thehazards of molten metal-water explosions and\/or eruptions in thatemployees were required to work with molten iron and\/or steel wherespillage, splash, run-out or other unwanted release of molten metalcould contact ice and\/or water. . . .Administrative Law Judge Sidney J. Goldstein found U.S. Steel inviolation of the general duty clause at all seven locations and heldthat the violation was willful. He assessed a penalty of $5,000. Theissues on review are whether the judge erred in finding violations ofthe general duty clause, and if there were violations, whether they werewillful. For the reasons that follow, we affirm the judge’s decision inpart and reverse it in part.The alleged hazard here is that U.S. Steel allowed ice and puddles ofwater to accumulate at certain locations in its plant. The Secretaryalleges that this is a hazard because if molten metal were to come intocontact with and encapsulate the water, the rapid heating of the waterwould cause it to change to a vapor, or gas and to expand explosivelyunder the molten metal, hurling it in all directions. U.S. Steel takesthe position that the water and ice in its plant did not present ahazard. It argues that the water and ice were remote from sources ofmolten metal and unlikely to explode if molten metal did reach them. TheUnited Steelworkers of America (\”Union\”) takes the same position as theSecretary.I.The citation involves two distinct areas of U.S. Steel’s facility, theBlast Furnace Division and the Basic Oxygen Process (\”B.O.P.\”) Shop.Iron ore is reduced to pig iron in the Blast Furnace Division. When thepig iron reaches the appropriate temperature, a tapping hole is drilledin the blast furnace allowing the iron to flow out of the furnace intotroughs that run along the upper floor of the cast house. The iron flowsthrough holes in the upper floor into ladle cars that are positioned onfour sets of railroad tracks that run underneath each furnace. Eachladle car holds from 150 to 180 tons of metal. From the Blast FurnaceDivision 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 amixer and then charged into a B.O.P. vessel, where it is treated withoxygen of high purity to remove carbon and other impurities. The moltensteel produced in the vessel is then tapped into another ladle and takenby crane or railcar to either the continuous caster or the teemingaisles. The ‘ladle cars used in the B.O.P. Shop may contain as much as200 tons of metal.During his inspection of the facility, Compliance Officer Joseph Howiczobserved water and ice in a number of locations. In the Blast FurnaceDivision he discovered a large piece of ice at the end of track No. 4under blast furnace No. 8, and accumulations of water between the tracksat 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 overheadspout through which molten metal descended from the furnace into theladle cars. The water on both tracks was underneath where ladle carswould be located during a pour of metal. Howicz posited that in theevent of a breakout from a ladle car or the blast furnace, spillage froma ladle car, or a ladle car derailment, molten metal could reach theaccumulations of water and ice and cause an explosion.In the B.O.P. Shop, Howicz observed water in front of \”k\” vessel, atthree locations in the teeming aisles, and at two locations adjacent tothe scrap transfer tracks. He testified that molten metal could reachthe water in front of \”k\” vessel due to crane failure or spillage fromladles. In the teeming aisles molten metal could reach the water throughmold failure and mispouring. In the scrap transfer aisles molten metalcould reach the water as a result of ladle car derailment, cranefailure, or spillage from a ladle.Howicz testified that a molten metal-water explosion results when arelatively large quantity of molten metal contacts and confines arelatively small quantity of water. He stated that explosion could occurwhether the water was confined, as in a pit, or free-standing, as in apuddle. The Secretary introduced a number of documents into evidence onwhich 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 andits industry. Factory Mutual System, Loss Prevention Data: Molten MetalFires and Explosions (Aug. 1973) provided details on a number ofexplosions that occurred when molten metal contacted water. Thepublication noted that \”keeping the environment dry and free of anycondition which might allow water to collect is vital.\” Lawrie, \”SomeRecent Developments in Health and Safety in Foundaries,\” The BritishFoundryman 313-314 (Aug. 1972) stated that if molten metal and water\”are allowed to mix there is always a risk of explosion.\” The articleemphasized \”that an explosion does not always result if [molten metal]runs on to wet surfaces, although on occasion it will sputtersufficiently to endanger those who are close to it. It is also wellknown that if liquid metal flows into water, there may be an explosionsufficiently 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 IceWater, snow and ice should be kept off the tracks and ground in thevicinity of the hot metal and cinder tracks at the casthouse, and at thepig machine pouring area, ladle house, molten slag dump, desulphurizingand at any other location where hot metal is poured or transferredbetween ladles or other containers.Water accumulation or water-impregnated materials caused by improperdrainage or lack of maintenance of water or steam lines in areas of hotmetal or slag transfer points shall be eliminated.Water accumulations below pig machines should be eliminated and the useof coolant water should be minimized.Howicz testified that based on his experience and his review of thedocuments dealing with molten metal-water explosions, accumulations ofwater in such close proximity to sources of molten metal were serioushazards that could cause death or serious physical harm. Howicz reliedin particular on a molten metal-water explosion at the Burnside foundryin Chicago, in which 5 persons were killed and 7 persons were injuredwhen 6 tons of molten metal fell into a 10-foot square pit.According to Howicz, the hazards presented by the ice and water could beeliminated in a number of ways. The ice could have been broken up andremoved. The accumulations of water in the area of the hot metal andscrap transfer tracks could have been eliminated through the use ofabsorbent materials, or the construction of dams and better drainagesystems. He testified that vessel \”K\” could have been shut down untilthe water on the transfer tracks was removed. Howicz also suggested thatU.S. Steel use only as much water as was necessary for production in theteeming aisles.To explain the nature of the hazard, the Secretary primarily relied onthe testimony of Dr. J. Gerin Sylvia. Dr. Sylvia had extensiveexperience in the operation of foundries and had taught college coursesin metallurgy and related subjects. He had never been involved in theoperation of an iron-producing blast furnace or a steel-producing B.O.P.furnace. Nor had Dr. Sylvia ever consulted with steel companies thatoperated such furnaces. In Dr. Sylvia’s view, a molten metal-waterexplosion hazard existed wherever molten metal could contact ice orwater, but he stated that the molten metal generally has to cover thewater for there to be an explosion. He testified that it is verydifficult to predict accurately the magnitude of an explosion or thedirection it will take. Dr. Sylvia explained that water can accept heatup to 212?F, then it changes into steam. At approximately 705?F, thesteam loses the capacity to accept heat. When molten metal with atemperature in excess of 2400?F covers water so as to entrap it, theheat transferred from the metal to the water causes the water to changeto vapor and to expand very rapidly, causing fragmentation of the metalinto small pieces. Although there can be fragmentation and explosion ifthe water is freestanding and the metal does not cover the water, Dr.Sylvia stated that fragmentation generally occurred when water wasentrapped by molten metal so that the expanding vapor can neitherpermeate nor escape through the coating of molten metal. He testifiedthat an explosion could be expected if molten metal came in contact witha freestanding puddle of water but ruled out the possibility of anexplosion if a minimal amount of molten metal trickled into a puddlefrom the side.Ralph Tuepker, U.S. Steel’s blast furnace engineer, had 29 yearsexperience at South Works. Tuepker testified that for \”a rather seriousreaction\” to occur molten metal would have to completely cover thewater. He testified that the force of a reaction increasesproportionately to the extent water is confined. Tuepker described thereaction of molten metal coming into contact with water as \”veryunpredictable.\” It was his judgment that if the water was no more thanan inch or so deep, there would not be a hazard. Tuepker becameconcerned about water on the hot metal tracks when the surface of thetracks was no longer visible or when the cast house yard was coveredwith water. In those circumstances, steps were taken to remove thewater. Tuepker testified that it was not always feasible to use drainson the hot metal tracks underneath the cast house because of thepossibility of molten metal spilling into a drain that already containedwater and causing an explosion. He characterized dams as temporaryexpedients that were constantly being destroyed by the movement of ladlecars.Besich was U.S. Steel’s superintendent in the B.O.P. Shop. He had beenat South Works for 21 years. Besich testified that in his experience,reactions and explosions involving molten metal and freestanding waterhad not been serious. He described a puddle of water several inches deepas not a big amount, but testified that a puddle of water 3 feet deephad to be cleaned up. Besich stated that molten metal does notencapsulate freestanding water but flows by it. He testified that anyreaction between freestanding water and metal could cause bits of metal,vapors and flame to fly in the air but probably would not cause anexplosion. Besich testified that on the day of the inspection U.S. Steelwas removing the water in front of \”K\” vessel by putting down absorbentgravel and then removing it with a payloader. He stated that it wasnecessary for U.S. Steel to use large amounts of water to teem ingots inthe teeming aisles in order to protect its employees from the hazards ofexploding molds. Besich testified that U.S. Steel was unaware of anyfeasible way to keep the water from accumulating alongside the scraptransfer 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 theindustry.Tuepker and Besich both testified that they were unaware of any seriousinjuries at South Works that had resulted from molten metal-waterexplosions.II.Judge Goldstein found that assigning work in areas where molten metalcould accidentally reach water exposed U.S. Steel’s employees to ahazard. 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 Goldsteinfound that U.S. Steel failed to demonstrate that water in the proximityof molten metal did not present a hazard. He noted that although Tuepkerand Besich, U.S. Steel’s witnesses, testified that water was not adanger if it was unconfined, there was nothing in the record to confirmtheir view. Rather he credited the documentary evidence, particularlyU.S. Steel’s safety manuals, over the testimony of Tuepker and Besich.He found that the documentary evidence supported the safety rule thatmolten metal should not be tolerated near unnecessary water, regardlessof whether the water was freestanding. The judge also noted thatexplosions had occurred when molten metal reached unconfined water andthat Dr. Sylvia, who he characterized as an experienced metallurgist,did not subscribe to the theory that there was a hazard only if thewater was confined. Judge Goldstein relied on U.S. Steel’s safety manualand the testimony of its witnesses in finding that U.S. Steel recognizedthe hazard. He found that serious physical harm was likely to resultfrom the hazard based on an incident in which burns were suffered byU.S. Steel’s management employee.[[3]] The judge based his finding thatthe Secretary had shown a feasible method of abatement on U.S. Steel’sfailure to object to the Secretary’s proposal for the use of absorbentmaterials. Judge Goldstein characterized the violation as willful. Hefound that U.S. Steel had been aware of the hazards of molten metal andwater since November 1977, but continued to pour molten metal with waterin the vicinity. He assessed a penalty of $5,000.III.U.S. Steel contends that Judge Goldstein erred in finding that itviolated the general duty clause by permitting water to accumulate inareas where there was only a remote possibility that it might come intocontact with hot metal. It claims that Judge Goldstein should havedetermined whether there was a realistic possibility that hot metal andwater would come into contact and cause an explosion. U.S. Steel relieson language in United States Steel Corp., 82 OSAHRC 35\/A2, 10 BNA OSHC1752, 1982 CCH OSHD ? 26,123 (No. 77- 1796, 1982) (\”U.S. Steel\”), inwhich the Commission, in discussing molten-metal water explosion hazardsin open hearth furnaces noted that \”[a]n explosion due to entrapment ofwater occurs only if water is subjected to extreme heat while caughtbehind a solid barrier which prevents its escape as it vaporizes andexpands.\” 10 BNA OSHC at 1757, 1982 CCH OSHD at p. 32,870. U.S. Steelnotes that the steel industry does recognize that a hazard may existwhere water may be encompassed by molten metal. However, it maintainsthat freestanding, insignificant amounts of water do not present ahazard, particularly when the water is a necessary part of thesteelmaking process. It argues that Tuepker and Besich were far morequalified to evaluate the hazards at South Works than Dr. Sylvia becauseTuepker and Besich were more familiar with the processes there. U.S.Steel contends that the testimony of Tuepker and Besich regarding hazardrecognition does not conflict with the provisions of its safety manuals.It maintains that the safety manuals merely acknowledge that a hazardmay be present under certain conditions and the testimony of Tuepker andBesich explained what those conditions are. U.S. Steel contends that Dr.Sylvia’s testimony that there is no real, concrete basis for hazardevaluation of molten metal-water explosions demonstrates that norecognized hazard was present at South Works.U.S. Steel argues that the Secretary has not shown that employees wouldsuffer serious physical harm or death because there is no showing thatwater would have contacted the metal, if the metal did escape. In theevent the metal and water did react, U.S. Steel argues that itsemployees would have been protected because they were not permitted indangerous areas and were protected by impenetrable barriers.In discussing abatement of the hazards, U.S. Steel contends that it wasusing all feasible methods of abatement at the time of the inspection.It argues that the severe winter weather affected its ability toeliminate the water under the blast furnaces and that it did not know ofthe existence of the ice. U.S. Steel states that the water thataccumulated on the teeming aisles was an inherent, necessary part of theteeming process, and that the water on the scrap transfer tracks couldnot have been avoided because the drainage in that area represented thestate of the art.The Secretary argues that he has proven \”overwhelmingly and conclusivelythat [U.S. Steel] created a recognized hazard by permitting molten metalto be poured and transferred in the vicinity of accumulations of waterand ice.\” He relies on the testimony of U.S. Steel’s witnesses that thecombination of molten metal and water was a recognized hazard in thesteel industry. He also relies on the warning in U.S. Steel’s ExplosionHazards Manual to keep \”[w]ater, snow and ice . . . off the tracks andground . . . at any location where hot metal is poured.\” He cites thelanguage of \”Some Recent Developments in Health and Safety in Foundries\”that states that if molten metal and water \”are allowed to mix there isalways a risk of explosion.\” He also cites Dr. Sylvia’s testimony thatthe steel industry recognizes the explosion hazard of molten metalcoming into contact with water.The Secretary argues that molten metal-water explosions are possible atSouth Works and not dependent upon a \”freakish or utterly implausibleconcurrence of circumstances,\” citing Titanium Metals Corp. v. Usery,579 F.2d 536, 541 (4th Cir. 1978). To substantiate his claim theSecretary introduced evidence of the accident in which U.S. Steel’smanagement employee was burned, and of other explosions that haveoccurred at South Works. He discounts U.S. Steel’s claims that employeeswould have been protected from the effects of explosions because theywere not permitted to work near the hazards and were protected byphysically impenetrable barriers. The Secretary contends that theevidence demonstrates that employees were exposed to explosion hazardsand were not protected by physical barriers.The Secretary argues that water and ice were present not due to theproduction of steel, but because of poor weather, poor drainage andbroken piping. The Secretary argues that feasible abatement methodscould have been implemented to remove or materially reduce the hazardsat all 7 locations. He relies primarily on the use of absorbent materialand better drainage, but notes that U.S. Steel did not rebut thecompliance 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 alsoemphasized that abatement of the hazard by having employees put down andremove absorbent materials should only be done when pouring is notunderway nearby.IV.To prove that an employer violated section 5(a)(1), the Secretary mustshow that a condition or activity in the employer’s workplace presenteda hazard to employees, Sharon Steel Corp., 85 OSAHRC___ , 12 BNA OSHC1539, 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, 1984CCH OSHD ? 26,852 (No. 77-2350, 1984). The Secretary must further provethat the hazard is likely to cause death or serious physical harm andthat feasible means existed to eliminate or materially reduce thehazard. 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 somecircumstances present a hazard of explosions, but disagree as to thecircumstances that were recognized to be hazardous. The Secretaryasserts that he has proven \”overwhelmingly and conclusively that [U.S.Steel] created a recognized hazard by permitting molten metal to bepoured and transferred in the vicinity of accumulations of water andice.\” But U.S. Steel asserts that it and its industry recognized ahazard in these operations only where there was a significant amount ofwater 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 thebasis that the employer’s procedure of changing oxygen lances overmolten metal in an open hearth furnace operation exposed employees to anexplosion hazard. In that case, there was considerable testimonyindicating that there would be no explosion hazard unless the coolingwater in the lance was actually entrapped or encapsulated under themolten metal. For example, the Secretary’s expert Geoffrey Belton agreedwith the employer’s expert Chester Bieniosek that an explosion couldoccur only if water under the molten metal were subjected to extremeheat and caught behind a solid barrier which prevented its escape. Theythus agreed that any water would have to be trapped under the moltenmetal behind a solid barrier, such as the lance itself with its waterports blocked by solidified metal impurities–slag, or solid ore andscrap at the bottom of the molten metal furnace. Otherwise, any waterreleased into the molten metal would simply bubble to the surface andcause no hazard.Different operations are now before us–here the molten metal is notconfined in a furnace where it is cooking, instead the problem is moltenmetal breakouts or flows from various operations. However, there is alsoconsiderable testimony in this case that there will not be anysignificant explosion hazard unless water is actually entrapped orencapsulated by molten metal. The Secretary’s expert, Dr. Sylvia,testified that, although explosions are possible if molten metal onlycontacts water, generally the molten metal must cover the water to suchan extent that water becomes entrapped under the molten metal. Thistestimony supports that of U.S. Steel’s witnesses Tuepker and Besich,who both emphasized that the water must be covered and encapsulated forthere to be any significant hazard of explosion.[[4]] Moreover, both ofthese witnesses based their testimony on their considerable experiencein the industry, whereas the Secretary’s expert Dr. Sylvia lacked suchexperience. He had operated neither blast nor B.O.P. furnaces norconsulted with steel companies who operate such furnaces. Accordingly,to the extent that Dr. Sylvia’s testimony could be understood to suggestthe 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 fromwater encapsulated by molten metal poured or transported in the vicinityof the water, we next consider to what extent the Secretary establishedthat the recognized hazards were present at South Works, whether theywere likely to cause death or serious physical harm, and whether therewere feasible means by which the hazards could be abated or materiallyreduced. 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 thecompliance officer at the end of hot metal track No. 4. The ice waslocated 15 to 20 feet from a point directly beneath the pouring spoutfrom which the ladle cans are filled. The ice was covered with dirt andflue dust. The compliance officer testified that if there was asubstantial spill, splash or other unwanted release of molten metal, itcould confine the ice and cause a tremendous explosion.We find that the evidence relied upon by the Secretary does notestablish that the ice posed a hazard to U.S. Steel’s employees.Tuepker, the engineer in the blast furnace division, testified thatbreakouts from the furnace and ladle cars were extremely rare. He hadseen fewer than half a dozen ladle car breakouts in 30 years. AngeloDickerson, a U.S. Steel employee for 35 years, testified that molteniron from a taphole breakout from the furnace could reach the ice onlyif there were no ladle cars underneath the taphole and the breakoutcould not be plugged with a mudgun. Dickerson stated that tapholebreakouts occur once or twice a year. Perhaps most important, Tuepkerfurther testified that even if molten metal came down the runner with noladle car in position, it would still take 150 to 180 tons of moltenmetal, the equivalent of a full ladle, 10 to 15 minutes to reach theice. He stated that the ice would probably be vaporized by the heatgenerated by the molten metal before the metal reached the ice.Tuepker’s testimony also demonstrated that U.S. Steel’s typicalprocedures for controlling breakouts would effectively prevent moltenmetal from a taphole breakout from reaching the ice. In addition tohaving ladle cars positioned on the tracks underneath the bliss furnaceto receive the metal, these measures include reducing the flow of themetal by cutting the wind in the furnace, using a mudgun to plug thebreakout and spraying water on the area of the breakout to \”freeze\” theescaping iron and plug the breakout.The Secretary also failed to show that U.S. Steel knew or with theexercise of reasonable diligence could have known of the existence ofthe ice. See Getty Oil Co. v. OSHRC, 530 F.2d 1143 (5th Cir, 1976). Thecompliance officer testified that U.S. Steel’s management employees whoaccompanied him on the inspection told him that the object had beenthere since December (the inspection occurred in March). However, therewas no evidence that U.S. Steel knew that the object was ice until thecompliance officer discovered it. Until that time, it was apparentlyimpossible to determine that the large object was not an accumulation ofdirt and flue dust. Even the compliance officer did not realize it wasice until the second day of the inspection. Indeed, one employeewitness, when told at the hearing that the pile at the end of the trackwas ice rather than a pile of dirt, refused to believe it. Theemployee’s testimony and the compliance officer’s failure to identifythe ice until it began to melt on the second day of the inspectionsubstantiate U.S. Steel’s claim that it did not know that there was iceunderneath the dirt. The evidence also demonstrates that Steel could nothave discovered the ice with the exercise of reasonable diligence.Tuepker testified that the ice was in an area \”pretty much out of boundsfor employees.\” Any employees in the area would not have expected to seeice, because, as Dickerson testified, \”There is no way that a block ofice has [any] business under a cast house . . . There’s no way for it toeven 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 hadaccumulated on the hot metal track underneath Blast Furnace No. 10. Whena ladle car is in position to receive molten iron from the taphole inthe floor above, it stands directly over the puddle. The water primarilycame from the cast house yard which had been saturated from heavy rainsand melting snow. Water in the yard tends to drain towards the trackarea under the cast house. At the time of the inspection, employees werepumping water out of the yard. Flue dust had been put on the hot metaltracks to absorb water. The compliance officer testified that U.S.Steel’s employees were working on the cast house floor above the tracksand in the cast house yard. Tuepker, U.S. Steel’s Blast Furnace divisionengineer, did not consider the amount of water present on track No. 4 tobe significant. He testified that molten metal could be safely cast intoa ladle car with the water present. If the metal did reach the water,Tuepker testified that he would expect \”a shot of varying and probablyunknown intensity . . . the force of that shot would be mainly absorbedby the mass of that ladle. . . . The force not absorbed by the ladlewould continue on upward . . . and would probably hit the cast housestructure.\”The evidence demonstrates that molten metal could reach the waterbetween the west hot metal tracks and cause an explosion. Indeed, theevidence at trial established that a molten metal-water explosion hadpreviously occurred on the tracks underneath this blast furnace.Tuepker’s testimony of the effects of a reaction apparently was intendedto minimize any suggestion that a hazard existed. We find, however, thatthere is evidence establishing the existence of a hazard.U.S. Steel argues that the hazard was not shown to have been likely tocause death or serious physical harm. We disagree. Although moltenmetal-water explosions are not everyday occurrences, they have occurredand with catastrophic effect. The circumstances here certainly presentedall the conditions necessary for such an occurrence. That U.S. Steel hasnot experienced such injuries from such explosions at this plant doesnot demonstrate that the condition here was not likely to cause seriousharm within the meaning of the general duty clause.To prove the feasibility and likely utility of the abatement measures heproposed, the Secretary must be able (1) to establish the type ofemployer conduct necessary to avoid citation under similar circumstancesand (2) to demonstrate the feasibility and likely utility of suchconduct. Phillips Petroleum. Id. The Secretary suggested that the hazardcould be abated by putting absorbent material on the water, by providingdrainage, and by building dams or dikes. U.S. Steel responds that it\”had employed all abatement measures recommended by OSHA, but due to thesevere weather conditions could not have avoided citation.\” The companycorrectly points out that the use of drains into which molten metalmight flow increases the likelihood of entrapment and resultantexplosions. Nevertheless, it could have employed the other abatementmethods to a greater extent to further remove or materially reduce theamount of water in the area regardless of its source. Commissioner Raderand Commissioner Wall therefore affirm item 1(b) of citation 2.Chairman Buckley would vacate item 1(b). In his view, the unrebuttedtestimony of Tuepker makes clear that the accumulation of water underthe west hot metal track did not present a hazard. Tuepker testifiedthat it was extremely unlikely that any molten metal from any sourcewould reach the water under the ladle car on the tracks, since the metalwould hit the car and run off the sides of the car outside the track. Inthe event the metal did reach the water he stated that the \”shot\”produced probably would be absorbed by the ladle car or by the casehouse structure. Although an explosion may have occurred on the west hotmetal track, Chairman Buckley notes that there was no indication thatthe water involved in that explosion was situated between rails as itwas 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 2inches 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 groundunderneath a ladle car on hot metal track number three. There had been amolten metal-water explosion in this area, and a spill of molten metalthat covered the width of 2 to 3 tracks. The compliance officertestified that molten iron from spills and breakouts could reach thesepuddles from an overhead spout and cause an explosion if a ladle car wasimproperly 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 blastfurnaces at South Works, testified that the amount of water was toosmall \”to do anything to talk about\” and \”enough for an explosion, but .. . not enough for that kind of explosion.\” He asserted that anyreaction would not reach the floor of the cast house and that noemployees were allowed under the cast house during a pour.Chairman Buckley and Commissioner Rader conclude that these smallpuddles of water do not present a hazard likely to cause death orserious physical harm to U.S. Steel’s employees. They conclude that evenif molten metal reached the water, any reaction that resulted would beminor. As Dickerson testified, the water the three puddles contained was\”not enough for that kind of explosion.\” Under the general duty clausethe hazard must be \”serious.\” This small amount of water does notproduce a serious hazard.Chairman Buckley would also vacate the item because he does not believethere is a significant risk here that molten metal could entrap waterand cause an explosion. First, it is unlikely that the spout would beoperated without some part of the 54-foot long ladle car beneath thespout. Second, if some part of the ladle car was beneath spout, themolten metal would spill over the car to the sides of the track andwould contact the water on the tracks only if it accumulated at thetrack’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 ofwater in these three puddles is certainly not insignificant. Moreover,the amount of water only raises the issue of the magnitude of explosionif one occurred; the explosion hazard is still present, and would belikely to cause death or serious physical injury. Spills and explosionshave occurred on these tracks previously and if the water in thesepuddles reacted with molten metal a substantial explosion is possible.An additional concern in this item is that the puddles would beimmediately beneath a ladle car when hot metal is poured into it. If thecar 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, itis either placed on a railroad car and moved to the continuous caster orteeming aisles, or picked up by craned and carried to the teemingaisles. On the day of the inspection, large portions of the tracks thatrun from \”k\” vessel to the continuous caster and the area surroundingthem were covered with up to 2 to 3 inches of water. The heaviestconcentration 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 itwith a payloader. Its employees were also attempting to repair thebroken piping in a vacuum degasser that was the source of the water. Nomolten metal was being moved to the continuous caster at the time of theinspection, it had been shut down to avoid carrying molten metal overthe water. However, according to the compliance officer, the waterpresented a hazard to U.S. Steel’s employees because U.S. Steelcontinued to move molten metal to the teeming aisles by carrying it overthe water in front of \”K\” vessel. He testified that molten metal couldfall on the water if a crane carrying molten metal to the teeming aislesfailed. Besich, U.S. Steel’s B.O.P. Shop superintendent, testified thathe was only aware of one incident of a crane dropping a full ladle ofmetal, and that had occurred at U.S. Steels’ Gary Works.Besich knew of approximately 10 ladle breakouts in the B.O.P. Shop atSouth Works. To his knowledge no one had been hurt from such breakouts,which usually occurred on the ground. Besich stated that U.S. Steel wastaking pains to remove the water in front of \”K\” vessel because it\”tended to be somewhat confined, and that is more of a hazard thanfreestanding water.\” Besich agreed that the admonition in U.S. Steel’sExplosion Hazards Manual that \”[w]ater, snow and ice should be kept off. . . locations where hot metal is poured,\” should be followed. Hestated, however, that areas like the furnace must be given firstpriority in water removal.U.S. Steel had reduced the amount of molten metal in the ladle by 5,000pounds to make spills less likely, and was attempting to abate thehazard at the time of the inspection. However, a preponderance of theevidence establishes that when molten metal was taken to the teemingaisles 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 theB.O.P. Shop, they have occurred. By allowing the metal to pass over thewater U.S. Steel created the reasonable probability that metal wouldspill directly on top of the water. In fact, Besich conceded that thewater here was confined, presenting a greater hazard of entrapment thanfreestanding 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 wherea number of U.S. Steel’s employees were working.The Secretary presented evidence that putting absorbent material on thewater and removing it and shutting down \”K\” vessel until the water wasremoved were feasible methods of abating the hazard. Although it seemsto us that shutting down \”K\” vessel might substantially interfere withU.S. Steel’s operations, U.S. Steel made no attempt to rebut theSecretary’s evidence or to show that it was economically infeasible tointerrupt casts in order to remove the water, or to shut \”K\” vessel downuntil 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 establishedfeasible means for abating the hazard in front of \”K\” vessel and affirmitem 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. vesselsis 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 20tons of molten metal. U.S. Steel’s employees, who regulate the flow ofsteel into the molds, stand on pouring platforms on bays that runparallel to the tracks on which the flat cars sit. The tracks areapproximately 12 feet below bay level. A necessary part of the processof producing ingots involves spraying water on top of the ingots whilethe metal core is still molten, in order to \”quench\” the mold. On theday of the inspection, water from this process and runoff water from theoutside had accumulated next to and in the middle of the tracks in theteeming aisles. The two largest puddles were 2 feet by 8 inches by 2inches and 5 feet by 18 inches by 1 to 2 inches. Porter, who had beenfirst steel pourer on the teeming aisles, had seen molten steel spillwhen molds leaked or separated. He had seen a number of explosions onthe teeming aisles but had never seen anyone injured as a result of anexplosion. Besich, the superintendent in the B.O.P. Shop, conceded thatmolten metal-water reactions had occurred in the teeming aisles. Hediscounted the significance of the water present during the inspection.He did not consider the amounts in than teeming aisles significantbecause they were not confined. The compliance officer testified that itwas an unsafe practice to allow puddles of water to accumulate on thefloor in an area where molten metal is handled.We find that the water in the teeming aisles does present a hazard thatis likely to cause death or serious physical harm to U.S. Steel’semployees. The presence of a hazard is demonstrated by the closeproximity of molds containing as much as 20 tons of molten steel andsignificant amounts of water. The evidence also shows that the moldsoccasionally spill metal by leaking or separating, and that moltenmetal-water explosions have occurred as a result.The Secretary proposed two abatement methods. The first method, sprayingonly as much water on the ingots as is necessary, is not feasible. U.S.Steel demonstrated that it was necessary to spray copious amounts ofwater on the molds. Besich explained that to insure that the ingots areproperly \”teemed\” and that the molds themselves do not explode,excessive amounts of water must be sprayed on the ingots. The complianceofficer did not explain how U.S. Steel could spray less water on theingots and still prevent employee exposure to exploding molds.The Secretary also suggests that the hazard could be abated by puttingabsorbent material on the water and removing it between pours. Thecompliance officer agreed that it would not be safe for employees to been the teeming aisle floors when there was the possibility of exposureto molten metal; however, under cross-examination by counsel for U.S.Steel, he suggested that employees could be on the floor to put downabsorbent material and remove the water during the intervals afteringots have been poured, teemed and removed and before new ingots arepoured. Although U.S. Steel raised this question during its owncross-examination and was certainly aware of the Secretary’s suggestedabatement method, U.S. Steel offered no evidence that the water couldnot have been removed during these intervals. Although Chairman Buckleysuggests that any reduction in the hazard through such removals isimmediately lost when the next molds are poured and teemed, the primarydanger of a molten metal-water explosion hazard exists during the poursbefore the quenching process takes place. Cleaning up between pours ofmolten metal would materially reduce the hazard because the water willnot be present during the next pour. Moreover, although water is aninherent part of the process, the compliance officer testified thatteeming aisles in other steel mills were kept dry. Because of U.S.Steel’s total failure to introduce any evidence rebutting theSecretary’s suggested abatement method, Commissioner Rader andCommissioner Wall conclude based on this record that it was feasible forU.S. Steel to remove water that accumulated from teeming ingots andother sources by using absorbent materials when metal was neither beingpoured 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 didnot establish a feasible method of abatement that would eliminate ormaterially reduce the hazard. Phillips Petroleum Co., 11 BNA OSHC at1779, 1983 CCH OSHD ? 26,783, p. 34,524. In his view, the presence ofwater in the teeming aisles is a necessary byproduct of the teeming ofingots. He agrees with the majority that the use of less water in theteeming operation is not a feasible method of abating the hazard.Chairman Buckley also finds that the Secretary failed to establish thatthe hazard can be eliminated or materially reduced through the use ofabsorbent material. The Secretary’s abatement method would require U.S.Steel to use absorbent material to remove the water in the intervalswhen ingots are not being poured or cooled in the molds in the teemingaisles. However, the Secretary does not establish that the intervalsbetween pours would allow this. Even if U.S. Steel is able to remove thewater between pours, the hazard will not have been materially reduced oreliminated because the pouring and quenching operation will reintroducethe hazard almost immediately. The water that is present in the teemingaisles is inherent in the process. There is no evidence that U.S. Steelpoured molds with water needlessly present in the teeming aisles. SeeBabcock & Wilcox, 622 F.2d at 1164._Item 1(f): Scrap transfer track No. 3Item 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, threesets of railroad tracks run in from the outside. Scrap metal that islater added to the mixer along with pig iron is brought into the shop onthese tracks. Three puddles of water, each approximately 5 feet indiameter and 1 inch deep, had accumulated in the area adjacent to thetracks. The water alongside scrap transfer track number 3 was located 15to 20 feet below the hot metal transfer tracks on which ladle cars ofmolten pig iron are brought into the B.O.P. Shop from the Blast FurnaceDivision. There was no evidence that molten metal from the ladle carshad reached the scrap transfer tracks but the compliance officertestified that molten metal from these ladle cars could reach the waterbelow in the event of a spill, breakout, or ladle car derailment. Thehot metal track rests on a platform, 12 to 15 feet wide. The complianceofficer testified that in the event molten metal spilled or leaked froma ladle car on the the hot metal track and hit the ground below the edgeof the platform, he did not know how far the metal would have to go toreach the puddle in item 1(f). There was evidence that a ladle car fromwhich molten metal had been removed had once overturned on the hot metaltracks when a large piece of solidified iron inside the car had shiftedand thrown the ladle car off the tracks, but molten metal was notspilled on that occasion.The two puddles cited in item 1(g) were in an area where ladles ofmolten metal were being transported overhead by crane. The complianceofficer testified that molten metal could reach the puddles from theseladles in the event of crane failure. The compliance officer noted thatthere were no physical barriers that would prevent metal from fallinginto the puddles. There was evidence that molten metal had been spilledin 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 inthe charging aisle are rare, but are most likely to occur when a ladleis being picked up or set down by the crane. In his view, if a cranedropped a ladle in this area, the result would be \”terrible\”, regardlessof the presence of water.We conclude that the conditions cited in items 1(f) and 1(g) do notpresent 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 hotmetal tracks, it was not shown by a preponderance of the evidence thatit would eventually reach the water cited in item 1(f). In fact, on thisrecord it seems extremely unlikely, if not virtually impossible that themolten 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 3locations, our next inquiry is whether the violations were willful. Toestablish that a violation was willful, the Secretary must show that itwas committed voluntarily with either an intentional disregard for therequirements of the Act or plain indifference to employee safety. SeeSimplex Time Recorder Co., 85 OSAHRC _\/__, 12 BNA OSHC 1591, 1595, 1985CCH 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 BNAOSHC 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 abroadly-worded provision like the general duty clause is willful, a moreconcrete evidentiary showing is required than under a more specificstandard. 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 MineralCorp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981).U.S. Steel contends that its efforts to abate allegedly hazardousconditions and its good faith belief that it was not violating the Actpreclude a willful characterization. U.S. Steel contrasts the willfulcharacterization here with a case like Babcock & Wilcox, which, itcontends, involved a far greater potential for a hazard, but which theUnited States Court of Appeals for the Third Circuit refused tocharacterize as willful.The Secretary argues that a prior citation in 1977, U.S. Steel’s ownwork rules and employee complaints to U.S. Steel regarding explosionhazards made U.S. Steel, aware of the hazardous condition. In failing toabate these conditions, the Secretary claims that U.S. Steel committed awillful violation.We cannot say that U.S. Steel’s failure to comply with the general dutyclause as to items 1(b), 1(d) and 1(e) of citation 2 should becharacterized as willful violations of the Act. The Secretary does notestablish that U.S. Steel decided to pour and transport molten metal inthe vicinity of water in intentional disregard of the requirements ofthe Act. The circumstances of this case demonstrate that U.S. Steel wasaware of the explosion hazard arising from encapsulation of water bymolten metal. U.S. Steel developed a strategy for dealing with thehazard based on the judgments of its managers as to the existence ofconditions that could give rise to an explosion hazard. Although U.S.Steel’s actions to prevent such a hazard were not always ascomprehensive as its manual directed, there is nothing in its treatmentof the proximity of molten metal and water that demonstrates anintentional disregard of the requirements of the Act. U.S. Steel wasattempting to remove the water cited in items 1(b) and 1(d). It wasmaking further attempts to remove the hazard cited in item 1(d) byshutting down the continuous caster to stop molten metal from beingtransported over the water in front of \”K\” vessel and reducing the levelof molten metal in the ladle. It did not know of the ice cited in item1(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. Aswe have shown by affirming violations of the general duty clause at someof these locations, we do not agree with all of U.S. Steel’s judgments.However these actions are certainly not characteristic of an employerwho willfully violates the Act.[[5]]Accordingly, we conclude that the item 1(b), 1(d), and 1(e) of citation2 are not properly characterized as willful.In summary, Chairman Buckley would affirm item 1(d) and vacate items1(a), 1(b), 1(c), 1(e), 1(f), and 1(g). Commissioner Rader would affirmitems 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) andvacate items 1(a), 1(f), and 1(g)._Penalty_Judge Goldstein assessed a $5,000 penalty. He found that U.S. Steelviolated the general duty clause as to the seven items of citations andheld that the violation was willful. We affirm his decision as to threeof the items, but vacate the willful characterization. In thecircumstances, we conclude that a penalty of $500 is appropriate.Accordingly, the judge’s decision finding items 1(a) through 1(g) ofcitation 2 to be willful reversed. Items 1(b), 1(d) and 1(e) areaffirmed as serious. Items 1(a), 1(c), 1(f) and 1(g) are vacated. Apenalty of $500 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryMar. 4,1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] Section 5(a)(1) provides that each employer \”shall furnish to eachof his employees employment and a place of employment which are freefrom recognized hazards that are causing or likely to cause death orserious 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-TemperatureMolten Materials (Dec. 1973) Accident Prevention Manual for IndustrialOperations (7th Ed. 1974), National Safety Council; The Making, Shapingand Treating Steel (9th Ed. 1971), United States Steel Corporation; TheLifesaver: Blast Furnace Division, South Works, United States SteelCorporation (undated).[[3]] A management employee of U.S. Steel received serious burns when heentered the track level under the cast house during a spill of moltenmetal. It was not established whether the burns resulted from a moltenmetal-water explosion or from contact with molten metal.[[4]] The Secretary and the judge also relied on U.S. Steel’s safetymanual, which the Secretary claims shows that U.S. Steel actuallyrecognized that there is a hazard whenever molten metal is poured ortransferred over any water. However, in light of the testimony of U.S.Steel’s witnesses about their experience with and understanding of theconditions in the industry, we conclude that this manual cannot beviewed as establishing the scope of the hazard recognized by U.S. Steel.An employer may understand that a significant hazard exists undercertain particular circumstances, but formulate a more general rulemandating such precautions as to promote conditions absolutelyeliminating any possibility that the hazardous circumstances may come toexist.[[5]] The Secretary also relies on a 1977 citation alleging theexistence of molten metal-water explosion hazards at South Works.Although that citation became the final order of the Commission, it doesnot support the Secretary’s contentions”