“Docket No. 79-1998 SECRETARY OF LABOR, Complainant v. UNITED STATES STEEL CORPORATION, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, LOCAL UNION 65, Authorized Employee, Representative.OSHRC Docket No. 79-1998DECISION Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (OSHA). It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor (\”the Secretary\”) underthe Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ?659(c).The United States Steel Corporation (\”U.S. Steel\”)produces iron and steel at its South Works facility in Chicago, Illinois. Following aMarch 1979 inspection of two large areas of the facility by an OSHA compliance officer,the Secretary issued a citation alleging that U.S. Steel had willfully violated thegeneral duty clause, section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1)[[1]]. The citationalleged that at seven locations at South Works:Adequate precautions were not taken to protect employees . . .from the hazards of molten metal-water explosions and\/or eruptions in that employees wererequired to work with molten iron and\/or steel where spillage, splash, run-out or otherunwanted release of molten metal could contact ice and\/or water. . . .Administrative Law Judge Sidney J. Goldstein found U.S. Steelin violation of the general duty clause at all seven locations and held that the violationwas willful. He assessed a penalty of $5,000. The issues on review are whether the judgeerred in finding violations of the general duty clause, and if there were violations,whether they were willful. For the reasons that follow, we affirm the judge’s decision inpart and reverse it in part.The alleged hazard here is that U.S. Steel allowed ice andpuddles of water to accumulate at certain locations in its plant. The Secretary allegesthat this is a hazard because if molten metal were to come into contact with andencapsulate the water, the rapid heating of the water would cause it to change to a vapor,or gas and to expand explosively under the molten metal, hurling it in all directions.U.S. Steel takes the position that the water and ice in its plant did not present ahazard. It argues that the water and ice were remote from sources of molten metal andunlikely to explode if molten metal did reach them. The United Steelworkers of America(\”Union\”) takes the same position as the Secretary.I.The citation involves two distinct areas of U.S. Steel’sfacility, the Blast Furnace Division and the Basic Oxygen Process (\”B.O.P.\”)Shop. Iron ore is reduced to pig iron in the Blast Furnace Division. When the pig ironreaches the appropriate temperature, a tapping hole is drilled in the blast furnaceallowing the iron to flow out of the furnace into troughs that run along the upper floorof the cast house. The iron flows through holes in the upper floor into ladle cars thatare positioned on four sets of railroad tracks that run underneath each furnace. Eachladle car holds from 150 to 180 tons of metal. From the Blast Furnace Division ladle carscarrying molten iron are moved to the B.O.P. Shop. At the B.O.P. Shop the molten iron iscombined with scrap metal in a mixer and then charged into a B.O.P. vessel, where it istreated with oxygen of high purity to remove carbon and other impurities. The molten steelproduced in the vessel is then tapped into another ladle and taken by crane or railcar toeither the continuous caster or the teeming aisles. The ‘ladle cars used in the B.O.P.Shop may contain as much as 200 tons of metal.During his inspection of the facility, Compliance OfficerJoseph Howicz observed 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. 4 under blast furnaceNo. 8, and accumulations of water between the tracks at track No. 4 and on the west hotmetal track at Blast Furnace No. 10. The ice was approximately 15 to 23 feet down thetrack from the overhead spout through which molten metal descended from the furnace intothe ladle cars. The water on both tracks was underneath where ladle cars would be locatedduring a pour of metal. Howicz posited that in the event of a breakout from a ladle car orthe blast furnace, spillage from a ladle car, or a ladle car derailment, molten metalcould reach the accumulations of water and ice and cause an explosion.In the B.O.P. Shop, Howicz observed water in front of \”k\” vessel, at threelocations in the teeming aisles, and at two locations adjacent to the scrap transfertracks. He testified that molten metal could reach the water in front of \”k\”vessel due to crane failure or spillage from ladles. In the teeming aisles molten metalcould reach the water through mold failure and mispouring. In the scrap transfer aislesmolten metal could reach the water as a result of ladle car derailment, crane failure, orspillage from a ladle.Howicz testified that a molten metal-water explosion resultswhen a relatively large quantity of molten metal contacts and confines a relatively smallquantity of water. He stated that explosion could occur whether the water was confined, asin a pit, or free-standing, as in a puddle. The Secretary introduced a number of documentsinto evidence on which Howicz relied to conclude that the accumulations of water at U.S.Steel’s plant presented a hazard that was recognized by U.S. Steel and its industry.Factory Mutual System, Loss Prevention Data: Molten Metal Fires and Explosions (Aug. 1973)provided details on a number of explosions that occurred when molten metal contactedwater. The publication noted that \”keeping the environment dry and free of anycondition which might allow water to collect is vital.\” Lawrie, \”Some RecentDevelopments in Health and Safety in Foundaries,\” The British Foundryman 313-314(Aug. 1972) stated that if molten metal and water \”are allowed to mix there is alwaysa risk of explosion.\” The article emphasized \”that an explosion does not alwaysresult 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 well known that if liquidmetal flows into water, there may be an explosion sufficiently violent to scatter themetal over a wide area. . . .\” U.S. Steel’s own Explosion Hazards Manual, BlastFurnace Section, 94 (1968)[[2]] states:Molten Material HandlingWater, Snow and IceWater, snow and ice should be kept off the tracks and ground inthe vicinity of the hot metal and cinder tracks at the casthouse, and at the pig machinepouring area, ladle house, molten slag dump, desulphurizing and at any other locationwhere hot metal is poured or transferred between ladles or other containers.Water accumulation or water-impregnated materials caused byimproper drainage or lack of maintenance of water or steam lines in areas of hot metal orslag transfer points shall be eliminated.Water accumulations below pig machines should be eliminated andthe use of coolant water should be minimized.Howicz testified that based on his experience and his review ofthe documents dealing with molten metal-water explosions, accumulations of water in suchclose proximity to sources of molten metal were serious hazards that could cause death orserious physical harm. Howicz relied in particular on a molten metal-water explosion atthe Burnside foundry in 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 watercould be eliminated in a number of ways. The ice could have been broken up and removed.The accumulations of water in the area of the hot metal and scrap transfer tracks couldhave been eliminated through the use of absorbent materials, or the construction of damsand better drainage systems. He testified that vessel \”K\” could have been shutdown until the water on the transfer tracks was removed. Howicz also suggested that U.S.Steel use only as much water as was necessary for production in the teeming aisles.To explain the nature of the hazard, the Secretary primarilyrelied on the testimony of Dr. J. Gerin Sylvia. Dr. Sylvia had extensive experience in theoperation of foundries and had taught college courses in metallurgy and related subjects.He had never been involved in the operation of an iron-producing blast furnace or asteel-producing B.O.P. furnace. Nor had Dr. Sylvia ever consulted with steel companiesthat operated such furnaces. In Dr. Sylvia’s view, a molten metal-water explosion hazardexisted wherever molten metal could contact ice or water, but he stated that the moltenmetal generally has to cover the water for there to be an explosion. He testified that itis very difficult to predict accurately the magnitude of an explosion or the direction itwill take. Dr. Sylvia explained that water can accept heat up to 212?F, then it changesinto steam. At approximately 705?F, the steam loses the capacity to accept heat. Whenmolten metal with a temperature in excess of 2400?F covers water so as to entrap it, theheat transferred from the metal to the water causes the water to change to vapor and toexpand very rapidly, causing fragmentation of the metal into small pieces. Although therecan be fragmentation and explosion if the water is freestanding and the metal does notcover the water, Dr. Sylvia stated that fragmentation generally occurred when water wasentrapped by molten metal so that the expanding vapor can neither permeate nor escapethrough the coating of molten metal. He testified that an explosion could be expected ifmolten metal came in contact with a freestanding puddle of water but ruled out thepossibility of an explosion if a minimal amount of molten metal trickled into a puddlefrom the side.Ralph Tuepker, U.S. Steel’s blast furnace engineer, had 29years experience at South Works. Tuepker testified that for \”a rather seriousreaction\” to occur molten metal would have to completely cover the water. Hetestified that the force of a reaction increases proportionately to the extent water isconfined. Tuepker described the reaction of molten metal coming into contact with water as\”very unpredictable.\” It was his judgment that if the water was no more than aninch or so deep, there would not be a hazard. Tuepker became concerned about water on thehot metal tracks when the surface of the tracks was no longer visible or when the casthouse yard was covered with water. In those circumstances, steps were taken to remove thewater. Tuepker testified that it was not always feasible to use drains on the hot metaltracks underneath the cast house because of the possibility of molten metal spilling intoa drain that already contained water and causing an explosion. He characterized dams astemporary expedients that were constantly being destroyed by the movement of ladle cars.Besich was U.S. Steel’s superintendent in the B.O.P. Shop. Hehad been at South Works for 21 years. Besich testified that in his experience, reactionsand explosions involving molten metal and freestanding water had not been serious. Hedescribed a puddle of water several inches deep as not a big amount, but testified that apuddle of water 3 feet deep had to be cleaned up. Besich stated that molten metal does notencapsulate freestanding water but flows by it. He testified that any reaction betweenfreestanding water and metal could cause bits of metal, vapors and flame to fly in the airbut probably would not cause an explosion. Besich testified that on the day of theinspection U.S. Steel was removing the water in front of \”K\” vessel by puttingdown absorbent gravel 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 in the teemingaisles in order to protect its employees from the hazards of exploding molds. Besichtestified that U.S. Steel was unaware of any feasible way to keep the water fromaccumulating alongside the scrap transfer tracks. He stated that at the time of thecitation, 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 anyserious injuries at South Works that had resulted from molten metal-water explosions.II.Judge Goldstein found that assigning work in areas where moltenmetal could accidentally reach water exposed U.S. Steel’s employees to a hazard. He reliedon the decisions in Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d378 (6th Cir. 1978), and Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir. 1980).Judge Goldstein found that U.S. Steel failed to demonstrate that water in the proximity ofmolten metal did not present a hazard. He noted that although Tuepker and Besich, U.S.Steel’s witnesses, testified that water was not a danger if it was unconfined, there wasnothing in the record to confirm their view. Rather he credited the documentary evidence,particularly U.S. Steel’s safety manuals, over the testimony of Tuepker and Besich. Hefound that the documentary evidence supported the safety rule that molten metal should notbe tolerated near unnecessary water, regardless of whether the water was freestanding. Thejudge also noted that explosions had occurred when molten metal reached unconfined waterand that Dr. Sylvia, who he characterized as an experienced metallurgist, did notsubscribe to the theory that there was a hazard only if the water was confined. JudgeGoldstein relied on U.S. Steel’s safety manual and the testimony of its witnesses infinding that U.S. Steel recognized the hazard. He found that serious physical harm waslikely to result from the hazard based on an incident in which burns were suffered by U.S.Steel’s management employee.[[3]] The judge based his finding that the Secretary had showna feasible method of abatement on U.S. Steel’s failure to object to the Secretary’sproposal for the use of absorbent materials.\u00a0 Judge Goldstein characterized theviolation as willful. He found that U.S. Steel had been aware of the hazards of moltenmetal and water since November 1977, but continued to pour molten metal with water in thevicinity. He assessed a penalty of $5,000.III. U.S. Steel contends that Judge Goldstein erred in finding thatit violated the general duty clause by permitting water to accumulate in areas where therewas only a remote possibility that it might come into contact with hot metal. It claimsthat Judge Goldstein should have determined whether there was a realistic possibility thathot metal and water would come into contact and cause an explosion. U.S. Steel relies onlanguage in United States Steel Corp., 82 OSAHRC 35\/A2, 10 BNA OSHC 1752, 1982 CCH OSHD ?26,123 (No. 77- 1796, 1982) (\”U.S. Steel\”), in which the Commission, indiscussing molten-metal water explosion hazards in open hearth furnaces noted that\”[a]n explosion due to entrapment of water occurs only if water is subjected toextreme heat while caught behind a solid barrier which prevents its escape as it vaporizesand expands.\” 10 BNA OSHC at 1757, 1982 CCH OSHD at p. 32,870. U.S. Steel notes thatthe steel industry does recognize that a hazard may exist where water may be encompassedby molten metal. However, it maintains that freestanding, insignificant amounts of waterdo not present a hazard, particularly when the water is a necessary part of thesteelmaking process. It argues that Tuepker and Besich were far more qualified to evaluatethe hazards at South Works than Dr. Sylvia because Tuepker and Besich were more familiarwith the processes there. U.S. Steel contends that the testimony of Tuepker and Besichregarding hazard recognition does not conflict with the provisions of its safety manuals.It maintains that the safety manuals merely acknowledge that a hazard may be present undercertain conditions and the testimony of Tuepker and Besich explained what those conditionsare. U.S. Steel contends that Dr. Sylvia’s testimony that there is no real, concrete basisfor hazard evaluation of molten metal-water explosions demonstrates that no recognizedhazard was present at South Works.U.S. Steel argues that the Secretary has not shown thatemployees would suffer serious physical harm or death because there is no showing thatwater would have contacted the metal, if the metal did escape. In the event the metal andwater did react, U.S. Steel argues that its employees would have been protected becausethey were not permitted in dangerous areas and were protected by impenetrable barriers.In discussing abatement of the hazards, U.S. Steel contendsthat it was using all feasible methods of abatement at the time of the inspection. Itargues that the severe winter weather affected its ability to eliminate the water underthe blast furnaces and that it did not know of the existence of the ice. U.S. Steel statesthat the water that accumulated on the teeming aisles was an inherent, necessary part ofthe teeming process, and that the water on the scrap transfer tracks could not have beenavoided because the drainage in that area represented the state of the art.The Secretary argues that he has proven \”overwhelmingly and conclusively that [U.S.Steel] created a recognized hazard by permitting molten metal to be poured and transferredin the vicinity of accumulations of water and ice.\” He relies on the testimony ofU.S. Steel’s witnesses that the combination of molten metal and water was a recognizedhazard in the steel industry. He also relies on the warning in U.S. Steel’s ExplosionHazards Manual to keep \”[w]ater, snow and ice . . . off the tracks and ground . . .at any location where hot metal is poured.\” He cites the language of \”SomeRecent Developments in Health and Safety in Foundries\” that states that if moltenmetal and water \”are allowed to mix there is always a risk of explosion.\” Healso cites Dr. Sylvia’s testimony that the steel industry recognizes the explosion hazardof molten metal coming into contact with water.The Secretary argues that molten metal-water explosions arepossible at South 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 the Secretary introduced evidence of theaccident in which U.S. Steel’s management employee was burned, and of other explosionsthat have occurred at South Works. He discounts U.S. Steel’s claims that employees wouldhave been protected from the effects of explosions because they were not permitted to worknear the hazards and were protected by physically impenetrable barriers. The Secretarycontends that the evidence 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 tothe production of steel, but because of poor weather, poor drainage and broken piping. TheSecretary argues that feasible abatement methods could have been implemented to remove ormaterially reduce the hazards at all 7 locations. He relies primarily on the use ofabsorbent material and 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 and remove absorbentmaterials should only be done when pouring is not underway nearby.IV.To prove that an employer violated section 5(a)(1), theSecretary must show that a condition or activity in the employer’s workplace presented ahazard to employees, Sharon Steel Corp., 85 OSAHRC___ , 12 BNA OSHC 1539, 1541, 1985 CCHOSHD ? 27,423 at p. 35,526 (No. 80-7251, 1985), citing Aluminum Co. of America, 83 OSAHRC24\/E10, 11 BNA OSHC 1898, 1984 CCH OSHD ? 26,852 (No. 77-2350, 1984). The Secretary mustfurther prove that the hazard is likely to cause death or serious physical harm and thatfeasible means existed to eliminate or materially reduce the hazard. Phillips PetroleumCo., 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 canin some circumstances present a hazard of explosions, but disagree as to the circumstancesthat were recognized to be hazardous. The Secretary asserts that he has proven\”overwhelmingly and conclusively that [U.S. Steel] created a recognized hazard bypermitting molten metal to be poured and transferred in the vicinity of accumulations ofwater and ice.\” But U.S. Steel asserts that it and its industry recognized a hazardin these operations only where there was a significant amount of water that could becomeencapsulated by molten metal. We find that U.S. Steel’s view of the evidence isessentially correct.In U.S. Steel, the Secretary charged a section 5(a)(1)violation on the basis that the employer’s procedure of changing oxygen lances over moltenmetal in an open hearth furnace operation exposed employees to an explosion hazard. Inthat case, there was considerable testimony indicating that there would be no explosionhazard unless the cooling water in the lance was actually entrapped or encapsulated underthe molten metal. For example, the Secretary’s expert Geoffrey Belton agreed with theemployer’s expert Chester Bieniosek that an explosion could occur only if water under themolten metal were subjected to extreme heat and caught behind a solid barrier whichprevented its escape. They thus agreed that any water would have to be trapped under themolten metal behind a solid barrier, such as the lance itself with its water ports blockedby solidified metal impurities–slag, or solid ore and scrap at the bottom of the moltenmetal furnace. Otherwise, any water released into the molten metal would simply bubble tothe surface and cause no hazard.Different operations are now before us–here the molten metalis not confined in a furnace where it is cooking, instead the problem is molten metalbreakouts or flows from various operations. However, there is also considerable testimonyin this case that there will not be any significant explosion hazard unless water isactually entrapped or encapsulated by molten metal. The Secretary’s expert, Dr. Sylvia,testified that, although explosions are possible if molten metal only contacts water,generally the molten metal must cover the water to such an extent that water becomesentrapped under the molten metal. This testimony supports that of U.S. Steel’s witnessesTuepker and Besich, who both emphasized that the water must be covered and encapsulatedfor there to be any significant hazard of explosion.[[4]] Moreover, both of thesewitnesses based their testimony on their considerable experience in the industry, whereasthe Secretary’s expert Dr. Sylvia lacked such experience. He had operated neither blastnor B.O.P. furnaces nor consulted with steel companies who operate such furnaces.Accordingly, to the extent that Dr. Sylvia’s testimony could be understood to suggest theexistence of a hazard under conditions not involving encapsulation, the testimony is notentitled to critical weight.Having determined that U.S. Steel recognized an explosionhazard from water encapsulated by molten metal poured or transported in the vicinity ofthe water, we next consider to what extent the Secretary established that the recognizedhazards were present at South Works, whether they were likely to cause death or seriousphysical harm, and whether there were feasible means by which the hazards could be abatedor materially reduced. We consider each item separately.Item-1(a):Blast Furnace No. 8, Hot Metal Track No. 4A large piece of ice 2 feet by 3 feet by 8 feet was discoveredby the compliance officer at the end of hot metal track No. 4. The ice was located 15 to20 feet from a point directly beneath the pouring spout from which the ladle cans arefilled. The ice was covered with dirt and flue dust. The compliance officer testified thatif there was a substantial 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 inthe blast furnace division, testified that breakouts from the furnace and ladle cars wereextremely rare. He had seen fewer than half a dozen ladle car breakouts in 30 years.Angelo Dickerson, a U.S. Steel employee for 35 years, testified that molten iron from ataphole breakout from the furnace could reach the ice only if there were no ladle carsunderneath the taphole and the breakout could not be plugged with a mudgun. Dickersonstated that taphole breakouts occur once or twice a year. Perhaps most important, Tuepkerfurther testified that even if molten metal came down the runner with no ladle car inposition, it would still take 150 to 180 tons of molten metal, the equivalent of a fullladle, 10 to 15 minutes to reach the ice. He stated that the ice would probably bevaporized by the heat generated by the molten metal before the metal reached the ice.Tuepker’s testimony also demonstrated that U.S. Steel’s typical procedures for controllingbreakouts would effectively prevent molten metal from a taphole breakout from reaching theice. In addition to having ladle cars positioned on the tracks underneath the blissfurnace to receive the metal, these measures include reducing the flow of the metal bycutting the wind in the furnace, using a mudgun to plug the breakout and spraying water onthe area of the breakout to \”freeze\” the escaping iron and plug the breakout.The Secretary also failed to show that U.S. Steel knew or with the exercise of reasonablediligence could have known of the existence of the ice. See Getty Oil Co. v. OSHRC, 530F.2d 1143 (5th Cir, 1976). The compliance officer testified that U.S. Steel’s managementemployees who accompanied him on the inspection told him that the object had been theresince December (the inspection occurred in March). However, there was no evidence thatU.S. Steel knew that the object was ice until the compliance officer discovered it. Untilthat time, it was apparently impossible to determine that the large object was not anaccumulation of dirt and flue dust. Even the compliance officer did not realize it was iceuntil the second day of the inspection. Indeed, one employee witness, when told at thehearing that the pile at the end of the track was ice rather than a pile of dirt, refusedto believe it. The employee’s testimony and the compliance officer’s failure to identifythe ice until it began to melt on the second day of the inspection substantiate U.S.Steel’s claim that it did not know that there was ice underneath the dirt. The evidencealso demonstrates that Steel could not have discovered the ice with the exercise ofreasonable diligence. Tuepker testified that the ice was in an area \”pretty much outof bounds for employees.\” Any employees in the area would not have expected to seeice, because, as Dickerson testified, \”There is no way that a block of ice has [any]business under a cast house . . . There’s no way for it to even form . . . \”Accordingly item 1(a) of citation 2 is vacated. Item 1(b):Blast Furnace No. 10, West Hot Metal TrackA puddle 12 to 14 inches wide, 6 feet long and 2 3\/4 inchesdeep had accumulated on the hot metal track underneath Blast Furnace No. 10. When a ladlecar is in position to receive molten iron from the taphole in the floor above, it standsdirectly over the puddle. The water primarily came from the cast house yard which had beensaturated from heavy rains and melting snow. Water in the yard tends to drain towards thetrack area under the cast house. At the time of the inspection, employees were pumpingwater out of the yard. Flue dust had been put on the hot metal tracks to absorb water. Thecompliance officer testified that U.S. Steel’s employees were working on the cast housefloor above the tracks and in the cast house yard. Tuepker, U.S. Steel’s Blast Furnacedivision engineer, did not consider the amount of water present on track No. 4 to besignificant. He testified that molten metal could be safely cast into a ladle car with thewater present. If the metal did reach the water, Tuepker testified that he would expect\”a shot of varying and probably unknown intensity . . . the force of that shot wouldbe mainly absorbed by the mass of that ladle. . . . The force not absorbed by the ladlewould continue on upward . . . and would probably hit the cast house structure.\”The evidence demonstrates that molten metal could reach thewater between the west hot metal tracks and cause an explosion. Indeed, the evidence attrial established that a molten metal-water explosion had previously occurred on thetracks underneath this blast furnace. Tuepker’s testimony of the effects of a reactionapparently was intended to minimize any suggestion that a hazard existed. We find,however, that there is evidence establishing the existence of a hazard.U.S. Steel argues that the hazard was not shown to have beenlikely to cause death or serious physical harm. We disagree. Although molten metal-waterexplosions are not everyday occurrences, they have occurred and with catastrophic effect.The circumstances here certainly presented all the conditions necessary for such anoccurrence. That U.S. Steel has not experienced such injuries from such explosions at thisplant does not demonstrate that the condition here was not likely to cause serious harmwithin the meaning of the general duty clause.To prove the feasibility and likely utility of the abatementmeasures he proposed, the Secretary must be able (1) to establish the type of employerconduct necessary to avoid citation under similar circumstances and (2) to demonstrate thefeasibility and likely utility of such conduct. Phillips Petroleum. Id. The Secretarysuggested that the hazard could be abated by putting absorbent material on the water, byproviding drainage, and by building dams or dikes. U.S. Steel responds that it \”hademployed all abatement measures recommended by OSHA, but due to the severe weatherconditions could not have avoided citation.\” The company correctly points out thatthe use of drains into which molten metal might flow increases the likelihood ofentrapment and resultant explosions. Nevertheless, it could have employed the otherabatement methods to a greater extent to further remove or materially reduce the amount ofwater in the area regardless of its source. Commissioner Rader and Commissioner Walltherefore affirm item 1(b) of citation 2.Chairman Buckley would vacate item 1(b). In his view, theunrebutted testimony of Tuepker makes clear that the accumulation of water under the westhot metal track did not present a hazard. Tuepker testified that it was extremely unlikelythat any molten metal from any source would reach the water under the ladle car on thetracks, since the metal would hit the car and run off the sides of the car outside thetrack. In the event the metal did reach the water he stated that the \”shot\”produced probably would be absorbed by the ladle car or by the case house structure.Although an explosion may have occurred on the west hot metal track, Chairman Buckleynotes that there was no indication that the water involved in that explosion was situatedbetween rails as it was here.Item 1(c):Blast Furnace No. 8, Hot Metal Tracks Nos. 3 and 4The compliance officer observed three one-inch deep puddlesmeasuring 2 inches by 5 inches, 3 inches by 5 inches, and 4 inches by 5 inches, underneatha ladle car on hot metal track four. He found wet ground underneath a ladle car on hotmetal track number three. There had been a molten metal-water explosion in this area, anda spill of molten metal that covered the width of 2 to 3 tracks. The compliance officertestified that molten iron from spills and breakouts could reach these puddles from anoverhead spout and cause an explosion if a ladle car was improperly aligned under thisspout or if no ladle car was present. Tuepker testified that the amount of water presentwas insignificant. Angelo Dickerson, who had 35 years experience working around blastfurnaces at South Works, testified that the amount of water was too small \”to doanything to talk about\” and \”enough for an explosion, but . . . not enough forthat kind of explosion.\” He asserted that any reaction would not reach the floor ofthe cast house and that no employees were allowed under the cast house during a pour.Chairman Buckley and Commissioner Rader conclude that thesesmall puddles of water do not present a hazard likely to cause death or serious physicalharm to U.S. Steel’s employees. They conclude that even if molten metal reached the water,any reaction that resulted would be minor. As Dickerson testified, the water the threepuddles contained was \”not enough for that kind of explosion.\” Under the generalduty clause the hazard must be \”serious.\” This small amount of water does notproduce a serious hazard.Chairman Buckley would also vacate the item because he does notbelieve there is a significant risk here that molten metal could entrap water and cause anexplosion. First, it is unlikely that the spout would be operated without some part of the54-foot long ladle car beneath the spout. Second, if some part of the ladle car wasbeneath spout, the molten metal would spill over the car to the sides of the track andwould contact the water on the tracks only if it accumulated at the track’s edge at alevel 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, theamount of water in these three puddles is certainly not insignificant. Moreover, theamount of water only raises the issue of the magnitude of explosion if one occurred; theexplosion hazard is still present, and would be likely to cause death or serious physicalinjury. Spills and explosions have occurred on these tracks previously and if the water inthese puddles reacted with molten metal a substantial explosion is possible. An additionalconcern in this item is that the puddles would be immediately beneath a ladle car when hotmetal is poured into it. If the car were not positioned properly, an explosion wouldalmost certainly occur.Item 1(d):B.O.P. Shop at \”k\” vesselWhen metal is tapped into a ladle from \”k\” vessel inthe B.O.P. Shop, it is either placed on a railroad car and moved to the continuous casteror teeming aisles, or picked up by craned and carried to the teeming aisles. On the day ofthe inspection, large portions of the tracks that run from \”k\” vessel to thecontinuous caster and the area surrounding them were covered with up to 2 to 3 inches ofwater. The heaviest concentration of water was 20 feet in width by 100 feet in length.U.S. Steel’s employees were dumping gravel in this water and then removing it with apayloader. Its employees were also attempting to repair the broken piping in a vacuumdegasser that was the source of the water. No molten metal was being moved to thecontinuous caster at the time of the inspection, it had been shut down to avoid carryingmolten metal over the water. However, according to the compliance officer, the waterpresented a hazard to U.S. Steel’s employees because U.S. Steel continued to move moltenmetal to the teeming aisles by carrying it over the water in front of \”K\”vessel. He testified that molten metal could fall on the water if a crane carrying moltenmetal to the teeming aisles failed. Besich, U.S. Steel’s B.O.P. Shop superintendent,testified that he was only aware of one incident of a crane dropping a full ladle ofmetal, and that had occurred at U.S. Steels’ Gary Works.Besich knew of approximately 10 ladle breakouts in the B.O.P.Shop at South Works. To his knowledge no one had been hurt from such breakouts, whichusually occurred on the ground. Besich stated that U.S. Steel was taking pains to removethe water in front of \”K\” vessel because it \”tended to be somewhatconfined, and that is more of a hazard than freestanding water.\” Besich agreed thatthe admonition in U.S. Steel’s Explosion Hazards Manual that \”[w]ater, snow and iceshould be kept off . . . locations where hot metal is poured,\” should be followed. Hestated, however, that areas like the furnace must be given first priority in waterremoval.U.S. Steel had reduced the amount of molten metal in the ladleby 5,000 pounds to make spills less likely, and was attempting to abate the hazard at thetime of the inspection. However, a preponderance of the evidence establishes that whenmolten metal was taken to the teeming aisles by either crane or rail it passed over thewater in front of \”K\” vessel. Although spills and breakouts are not a commonoccurrence in the B.O.P. Shop, they have occurred. By allowing the metal to pass over thewater U.S. Steel created the reasonable probability that metal would spill directly on topof the water. In fact, Besich conceded that the water here was confined, presenting agreater hazard of entrapment than freestanding water. If the metal did spill and entrapthe water, subjecting it to extreme heat, it would cause an explosion, see U.S. Steel, 10BNA OSHC at 1757, 1982 CCH OSHD at p. 32,870, in an area where a number of U.S. Steel’semployees were working.The Secretary presented evidence that putting absorbentmaterial on the water and removing it and shutting down \”K\” vessel until thewater was removed were feasible methods of abating the hazard. Although it seems to usthat shutting down \”K\” vessel might substantially interfere with U.S. Steel’soperations, U.S. Steel made no attempt to rebut the Secretary’s evidence or to show thatit was economically infeasible to interrupt casts in order to remove the water, or to shut\”K\” vessel down until the water was removed. See Sherwin-Williams Co., 84 OSAHRC__\/__, 11 BNA OSHC 2105, 2110, 1984 CCH OSHD ? 26,986, p. 34,702 (No. 14131, 1984).Accordingly, we conclude that the Secretary has established feasible means for abating thehazard in front of \”K\” vessel and affirm item 1(d) of citation 2.Item 1(e):Teeming aisles Nos. 1, 2 and 5In the teeming aisles, molten steel transported from the B.O.P.vessels is bottom poured from a crane held ladle into ingot molds. The molds, which sit onflat, small-gauge railroad cars, may contain as much as 20 tons of molten metal. U.S.Steel’s employees, who regulate the flow of steel into the molds, stand on pouringplatforms on bays that run parallel to the tracks on which the flat cars sit. The tracksare approximately 12 feet below bay level. A necessary part of the process of producingingots involves spraying water on top of the ingots while the metal core is still molten,in order to \”quench\” the mold. On the day of the inspection, water from thisprocess and runoff water from the outside had accumulated next to and in the middle of thetracks in the teeming aisles. The two largest puddles were 2 feet by 8 inches by 2 inchesand 5 feet by 18 inches by 1 to 2 inches. Porter, who had been first steel pourer on theteeming aisles, had seen molten steel spill when molds leaked or separated. He had seen anumber of explosions on the teeming aisles but had never seen anyone injured as a resultof an explosion. Besich, the superintendent in the B.O.P. Shop, conceded that moltenmetal-water reactions had occurred in the teeming aisles. He discounted the significanceof the water present during the inspection. He did not consider the amounts in thanteeming aisles significant because they were not confined. The compliance officertestified that it was 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 ahazard that is likely to cause death or serious physical harm to U.S. Steel’s employees.The presence of a hazard is demonstrated by the close proximity of molds containing asmuch as 20 tons of molten steel and significant amounts of water. The evidence also showsthat the molds occasionally 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, spraying only as muchwater on the ingots as is necessary, is not feasible. U.S. Steel demonstrated that it wasnecessary to spray copious amounts of water on the molds. Besich explained that to insurethat the ingots are properly \”teemed\” and that the molds themselves do notexplode, excessive amounts of water must be sprayed on the ingots. The compliance officerdid not explain how U.S. Steel could spray less water on the ingots and still preventemployee exposure to exploding molds.The Secretary also suggests that the hazard could be abated byputting absorbent material on the water and removing it between pours. The complianceofficer agreed that it would not be safe for employees to be en the teeming aisle floorswhen there was the possibility of exposure to molten metal; however, undercross-examination by counsel for U.S. Steel, he suggested that employees could be on thefloor to put down absorbent material and remove the water during the intervals afteringots have been poured, teemed and removed and before new ingots are poured. AlthoughU.S. Steel raised this question during its own cross-examination and was certainly awareof the Secretary’s suggested abatement method, U.S. Steel offered no evidence that thewater could not have been removed during these intervals. Although Chairman Buckleysuggests that any reduction in the hazard through such removals is immediately lost whenthe next molds are poured and teemed, the primary danger of a molten metal-water explosionhazard exists during the pours before the quenching process takes place. Cleaning upbetween pours of molten metal would materially reduce the hazard because the water willnot be present during the next pour. Moreover, although water is an inherent part of theprocess, the compliance officer testified that teeming aisles in other steel mills werekept dry.\u00a0 Because of U.S. Steel’s total failure to introduce any evidence rebuttingthe Secretary’s suggested abatement method, Commissioner Rader and Commissioner Wallconclude based on this record that it was feasible for U.S. Steel to remove water thataccumulated from teeming ingots and other sources by using absorbent materials when metalwas neither being poured nor being allowed to cool, and affirm item 1(e) of Citation 2.Chairman Buckley would vacate item 1(e). He finds that theSecretary did not establish a feasible method of abatement that would eliminate ormaterially reduce the hazard. Phillips Petroleum Co., 11 BNA OSHC at 1779, 1983 CCH OSHD? 26,783, p. 34,524. In his view, the presence of water in the teeming aisles is anecessary byproduct of the teeming of ingots. He agrees with the majority that the use ofless water in the teeming operation is not a feasible method of abating the hazard.Chairman Buckley also finds that the Secretary failed to establish that the hazard can beeliminated or materially reduced through the use of absorbent material. The Secretary’sabatement method would require U.S. Steel to use absorbent material to remove the water inthe intervals when ingots are not being poured or cooled in the molds in the teemingaisles. However, the Secretary does not establish that the intervals between pours wouldallow this. Even if U.S. Steel is able to remove the water between pours, the hazard willnot have been materially reduced or eliminated because the pouring and quenching operationwill reintroduce the hazard almost immediately. The water that is present in the teemingaisles is inherent in the process. There is no evidence that U.S. Steel poured molds withwater needlessly present in the teeming aisles. See Babcock & Wilcox, 622 F.2d at1164.Item 1(f): Scrap transfer track No. 3 Item 1(g): Scrap transfer tracks No. 1 and 2At ground level in the B.O.P. shop, south of the B.O.P.vessels, three sets of railroad tracks run in from the outside. Scrap metal that is lateradded to the mixer along with pig iron is brought into the shop on these tracks. Threepuddles of water, each approximately 5 feet in diameter and 1 inch deep, had accumulatedin the area adjacent to the tracks. The water alongside scrap transfer track number 3 waslocated 15 to 20 feet below the hot metal transfer tracks on which ladle cars of moltenpig iron are brought into the B.O.P. Shop from the Blast Furnace Division. There was noevidence that molten metal from the ladle cars had reached the scrap transfer tracks butthe compliance officer testified that molten metal from these ladle cars could reach thewater below in the event of a spill, breakout, or ladle car derailment. The hot metaltrack rests on a platform, 12 to 15 feet wide. The compliance officer testified that inthe event molten metal spilled or leaked from a ladle car on the the hot metal track andhit the ground below the edge of the platform, he did not know how far the metal wouldhave to go to reach 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 metal tracks when alarge piece of solidified iron inside the car had shifted and thrown the ladle car off thetracks, but molten metal was not spilled on that occasion.The two puddles cited in item 1(g) were in an area where ladlesof molten metal were being transported overhead by crane. The compliance officer testifiedthat molten metal could reach the puddles from these ladles in the event of crane failure.The compliance officer noted that there were no physical barriers that would prevent metalfrom falling into the puddles. There was evidence that molten metal had been spilled inthe area, but not whether it would have reached the puddles. Superintendent Besich hadnever witnessed a crane failure in the B.O.P. Shop that resulted in metal spilling. Hetestified that ladle spills in the charging aisle are rare, but are most likely to occurwhen a ladle is being picked up or set down by the crane. In his view, if a crane droppeda ladle in this area, the result would be \”terrible\”, regardless of the presenceof water.We conclude that the conditions cited in items 1(f) and 1(g) donot present hazards likely to cause death or serious physical harm to U.S. Steel’semployees. Should molten metal leak from a ladle car on the hot metal tracks, it was notshown by a preponderance of the evidence that it would eventually reach the water cited initem 1(f). In fact, on this record it seems extremely unlikely, if not virtuallyimpossible that the molten metal could reach any of these puddles.Accordingly items 1(f) and 1(g) of citation 2 are vacated. V.Having found that U.S. Steel violated the general duty clauseat 3 locations, our next inquiry is whether the violations were willful. To establish thata violation was willful, the Secretary must show that it was committed voluntarily witheither an intentional disregard for the requirements of the Act or plain indifference toemployee safety. See Simplex Time Recorder Co., 85 OSAHRC _\/__, 12 BNA OSHC 1591, 1595,1985 CCH OSHD ? 27,456, p. 35,571 (No. 82-12, 1985), citing D. A. & L Caruso, Inc.,84 OSAHRC _\/__, 11 BNA OSHC 2138, 2142, 1984 CCH OSHD ? 26,985, p. 34,694 (No. 79-5676,1984); Duquesne Light Co., 84 OSAHRC 23\/D2, 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ?26,959, p. 34,603 (No. 79-1682, 1984); Mobil Oil Corp., 83 OSAHRC 47\/B6, 11 BNA OSHC 1700,1983 CCH OSHD ? 26,699 (No. 79-4802, 1983). To prove that a violation of a broadly-wordedprovision like the general duty clause is willful, a more concrete evidentiary showing isrequired than under a more specific standard. See Lukens Steel Co., 81 OSAHRC 96\/A2, 10BNA OSHC 1115, 1125, 1981 CCH OSHD ? 25,742. p. 32,121 (No. 76-1053, 1981); St. JoeMineral Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981).U.S. Steel contends that its efforts to abate allegedlyhazardous conditions and its good faith belief that it was not violating the Act precludea willful characterization. U.S. Steel contrasts the willful characterization here with acase like Babcock & Wilcox, which, it contends, involved a far greater potential for ahazard, but which the United 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 own work rules and employee complaints to U.S. Steel regarding explosion hazardsmade U.S. Steel, aware of the hazardous condition. In failing to abate these conditions,the Secretary claims that U.S. Steel committed a willful violation. We cannot say that U.S. Steel’s failure to comply with thegeneral duty clause as to items 1(b), 1(d) and 1(e) of citation 2 should be characterizedas willful violations of the Act. The Secretary does not establish that U.S. Steel decidedto pour and transport molten metal in the vicinity of water in intentional disregard ofthe requirements of the Act. The circumstances of this case demonstrate that U.S. Steelwas aware of the explosion hazard arising from encapsulation of water by molten metal.U.S. Steel developed a strategy for dealing with the hazard based on the judgments of itsmanagers as to the existence of conditions that could give rise to an explosion hazard.Although U.S. Steel’s actions to prevent such a hazard were not always as comprehensive asits manual directed, there is nothing in its treatment of the proximity of molten metaland water that demonstrates an intentional disregard of the requirements of the Act. U.S.Steel was attempting to remove the water cited in items 1(b) and 1(d). It was makingfurther attempts to remove the hazard cited in item 1(d) by shutting down the continuouscaster to stop molten metal from being transported over the water in front of\”K\” vessel and reducing the level of molten metal in the ladle. It did not knowof the ice cited in item 1(a). At the locations cited in items 1(c), 1(e), 1(f), and 1(g),U.S. Steel had concluded that its employees were not exposed to a hazard. As we have shownby affirming violations of the general duty clause at some of these locations, we do notagree with all of U.S. Steel’s judgments. However these actions are certainly notcharacteristic of an employer who willfully violates the Act.[[5]]Accordingly, we conclude that the item 1(b), 1(d), and 1(e) of citation 2 are not properlycharacterized as willful.In summary, Chairman Buckley would affirm item 1(d) and vacateitems 1(a), 1(b), 1(c), 1(e), 1(f), and 1(g). Commissioner Rader would affirm items 1(b),1(d), and 1(e) and vacate items 1(a), 1(c) 1(f), and 1(g). Commissioner Wall would affirmitems 1(b), 1(c), 1(d), and 1(e) and vacate items 1(a), 1(f), and 1(g).PenaltyJudge Goldstein assessed a $5,000 penalty. He found that U.S.Steel violated the general duty clause as to the seven items of citations and held thatthe violation was willful. We affirm his decision as to three of the items, but vacate thewillful characterization. In the circumstances, we conclude that a penalty of $500 isappropriate.Accordingly, the judge’s decision finding items 1(a) through1(g) of citation 2 to be willful reversed. Items 1(b), 1(d) and 1(e) are affirmed asserious. Items 1(a), 1(c), 1(f) and 1(g) are vacated. A penalty of $500 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryMar. 4,1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] Section 5(a)(1) provides that each employer \”shallfurnish to each of his employees employment and a place of employment which are free fromrecognized hazards that are causing or likely to cause death or serious physical harm tohis employees. . . .\”[[2]] Other documents, which are consistent with thosediscussed, include: Safety Standards, Part 44 (Foundries), Michigan Dept. of Labor;Factory Mutual System, Loss Prevention Data Sheet: High-Temperature Molten Materials (Dec.1973) Accident Prevention Manual for Industrial Operations (7th Ed. 1974), National SafetyCouncil; The Making, Shaping and Treating Steel (9th Ed. 1971), United States SteelCorporation; The Lifesaver: Blast Furnace Division, South Works, United States SteelCorporation (undated).[[3]] A management employee of U.S. Steel received seriousburns when he entered the track level under the cast house during a spill of molten metal.It was not established whether the burns resulted from a molten metal-water explosion orfrom contact with molten metal.[[4]] The Secretary and the judge also relied on U.S. Steel’ssafety manual, which the Secretary claims shows that U.S. Steel actually recognized thatthere is a hazard whenever molten metal is poured or transferred over any water. However,in light of the testimony of U.S. Steel’s witnesses about their experience with andunderstanding of the conditions in the industry, we conclude that this manual cannot beviewed as establishing the scope of the hazard recognized by U.S. Steel. An employer mayunderstand that a significant hazard exists under certain particular circumstances, butformulate a more general rule mandating such precautions as to promote conditionsabsolutely eliminating any possibility that the hazardous circumstances may come to exist.[[5]] The Secretary also relies on a 1977 citation alleging theexistence of molten metal-water explosion hazards at South Works. Although that citationbecame the final order of the Commission, it does not support the Secretary’s contentions”