Docket No. 80-7386

SECRETARY OF LABOR,
Complainant,

HAYES-ALBION CORPORATION,
Respondent.

UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, LOCAL 1644,

Authorized Employee
Representative.

OSHRC Docket No. 80-7386

DECISION

Before: BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

The issue on review is whether Administrative Law Judge James D. Burroughs erred in vacating a citation that was issued to Hayes-Albion Corporation. The citation alleged that Hayes-Albion failed to free its Tiffin, Ohio, grey iron foundry of a molten metal-water explosion hazard in willful violation of section 5(a)(1) of the Act, 29 U.S.C. ї 654(a)(1).[[1]]

The alleged violation took place in Hayes-Albion's disamatic molding department. In his decision, Judge Burroughs provided a description of the department and the events that preceded the alleged violation:

The disamatic molding department . . . contains three disamatic machines, three autopour vessels and three molding lines, all of which are parallel to each other. Aisleways exist between machines one and two and between machines two and three. The mold lines are approximately 10 to 12 feet apart. [The autopour vessels are 4 feet wide and 7 to 8 feet apart.] The disamatic machines produce a continuous line of molds made of sand. The molds move down a rail to a position under the autopour vessel where they are filled with molten iron. After being filled with molten iron, the molds are pushed to a meshbelt where they proceed to the casting handling system.

On the morning of October 16, 1980, just prior to 7:00 a.m., all three disamatic machines were started and commenced pushing out molds. Once the molds were underneath the autopour vessels, the operators called for iron. The autopour vessel for disamatic machine number three was the first to receive iron. The autopour vessel for disamatic machine number one was the next to receive iron. The operator for disamatic machine number one experienced difficulty in lifting the rod in the autopour vessel so he could get a proper pour. During the process of adjusting the rod, the rod came off the nozzle, splattered iron and commenced a fire. The fire occurred around 7:00 a.m. Prior to the commencement of the fire, the autopour vessel for disamatic machine number two had not received any iron.

The fire occurred immediately above disamatic machine number one and spread into the exhaust ductwork. The fire brigade was called and an attempt was made to extinguish the fire by using dry chemicals. While the blaze immediately above the machine was extinguished by the dry chemicals, employees were unable to extinguish the blaze in the exhaust stack. When efforts to extinguish the blaze in the exhaust stack by dry chemicals proved unsuccessful, a decision was made to use water to extinguish the blaze. A two-and-a-half-inch hose with a variable nozzle was used to furnish the water to extinguish the flame. The nozzle was set on a fog spray and directed inside the ductwork from the roof. After seven to ten minutes of applying water, the fire was extinguished and the use of water was ceased.

Water from the fire hose drained down the inside of the ductwork to the floor of the foundry. Due to the configuration of the ventilation system, the water drained to the foundry floor under disamatic machine number two and spread outward as it accumulated on the floor. . . .

A monorail system is used to deliver molten iron in a ladle from the coreless furnace area to the autopour vessels at the disamatic machines. The system makes a complete loop from the coreless furnace department to serve the disamatic machines. The normal operating procedure for the monorail is to approach the disamatic area from the south and come first to disamatic machine number one. The monorail would then normally proceed to disamatic machines number two and number three.

Because of concern that the burning ductwork might fall on the monorail and damage it, the monorails, which carried ladles of molten iron, were rerouted during the fire so that they did not pass over autopour vessel number two, after deliveries were made at autopour vessels number one and three. During the cleanup, after the fire had been extinguished, empty ladles were allowed to pass over autopour vessel number two. When water from the fire fighting efforts started to accumulate on the floor of the disamatic area, Hayes-Albion directed a number of its employees to clean it up. The employees shoveled sand on the water, let the sand absorb the water and then removed the sand. They also fashioned dams in the aisles to prevent water from spreading underneath autopour vessels and mold lines one and three.

During this cleanup period, which began soon after 7:30, Hayes-Albion was "pigging" at autopour vessel number one--i.e., pouring metal that was at less than production temperature into molds--because the heater that kept the metal in the vessel at production temperature had failed. At about 8:10, after the "pigging" was concluded, the monorail delivered a fresh load of metal to autopour vessel number one and the pouring of molds was resumed there. Autopour vessel number three was shut down briefly when the dry chemical from a fire extinguisher filled the air in the disamatic area. After the air in the area was cleared, Hayes-Albion began pouring metal into molds at autopour vessel number three but stopped pouring for about fifteen minutes between 7:30 and 8:00, because water was trickling toward the autopour vessel.

Although no molten metal was spilled on the day of the fire, spills had occurred in the disamatic department on previous occasions because of vessel burnout, leaks from overfilled or separating molds, rods breaking in the autopour vessels, and misalignment of the monorail ladle when metal was transferred from the ladle to the autopour vessel. If molten metal is spilled and encompasses a certain amount of water, it nearly instantaneously heats the water far beyond the point at which the water can accept heat without expanding rapidly. The extremely rapid expansion in volume can cause an explosion that may project molten metal outward with great force.

According to the Secretary, two procedures allegedly exposed Hayes-Albion's employees to an explosion hazard. The first involved the transportation of molten metal by monorail ladle over puddles of water and water-saturated sand. The second procedure cited was the pouring of molten metal into molds at autopour vessels number one and three while water and water-saturated sand was under and adjacent to the autopour platform. The allegedly endangered employees were those cleaning up the water underneath the autopour vessels and operating the disamatic machines.

The judge vacated the citation because the Secretary failed to show that the existence of a hazard was caused by the "pourings of molten metal being made at autopour vessels one and three while the water was being removed from the foundry floor" and because the evidence showed that ladles of molten metal were not transported over water or water-saturated sand by monorail. The judge found that the record did not establish how close the water came to the autopour vessels and mold lines. He found that the mere presence of molten metal and water in the same area did not establish the existence of hazard.

In order to establish a violation of section 5(a)(1), the Secretary must prove that (1) the hazard existed at the workplace, (2) the hazard was recognized by the cited employer or generally by the employer's industry, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. See Phillips Petroleum Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1984 CCH OSHD І 26,783 (No. 78-1816, 1984). The members disagree on whether the judge erred in vacating the citation.

Chairman Buckley would affirm the judge's decision and vacate the citation. The Secretary failed to establish that an explosion hazard existed at the Hayes-Albion worksite. The Secretary's expert witness, Dr. Sylvia, testified that, where molten metal flows across a floor, it loses heat so that, upon contact with water, there is no possibility of an explosion. The only reaction would be a "fussing, spitting action, not an explosion action." Hayes-Albion's expert witness Bruner gave similar testimony. There was no testimony demonstrating the possibility of an explosion from molten metal flowing toward and contacting water. The record conclusively demonstrates that the hazard of an explosion exists only if molten metal falls on top of water and encapsulates the water. In view of this, the Secretary had to establish that molten metal could encapsulate water by falling directly onto the water under and around the disamatic and autopour vessel number two.

At trial, the Secretary argued that molten metal was transported directly over the water, because the monorail carried metal over disamatic machine number one and because molten metal was poured in machines one and three while water was under or adjacent to these machines. The judge carefully considered the conflicting testimony relied on by the Secretary and determined that the weight of the credible evidence supported Hayes-Albion's contentions that molten metal was not transported over water and that molten metal could not have fallen on the spilled water to create an explosion hazard.[[2]]

Hayes-Albion presented evidence that it rerouted the ladles on the monorail so that the ladies did not pass over the water at and around the number two disamatic and autopour vessel. The only testimony to the contrary came from Mitchell, an iron pourer in an adjoining operation. Judge Burroughs found that Mitchell was mistaken in his testimony that he saw a full or half ladle of
molten metal pass over the water under the number two machine. The judge noted that Mitchell's account was disputed by two witnesses--Hayes-Albion's foundry superintendent Smith and Hayes-Albion's melt supervisor-and that Mitchell's testimony was not corroborated by three other witnesses--the fire brigade captain Spanfellner, the fire brigade coordinator, and an autopour operator present on the deck at the three disamatic and autopour vessels at the time of the fire and clean up. Judge Burroughs found that these five witnesses were in a much better position than Mitchell to observe the monorail, that Mitchell's work station was located some fifty feet from the point at which a ladle would pass over water, and that Mitchell was working with his back to the disamatic area. Chairman Buckley would add that these five witnesses had every reason to be acutely aware of monorail activity during the clean up period. The Chairman therefore sees no reason to disturb the judge's evaluation of Mitchell's testimony. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD І 22,481, p. 27,099 (No. 14249, 1978).

Evidence is also lacking to establish the Secretary's other claim, that Hayes-Albion created an explosion hazard by pouring molten metal into molds at the number one and number three autopour vessels while there was water and water-saturated sand under and around the number two machine. As the judge states, the parties disputed whether the water under the number two disamatic and autopour vessel had "spread into the operational areas of disamatic machines one and three and the autopour vessels for those machine." The parties each presented several witnesses describing the extent of the water in relation to the number one and number three disamatic and autopour vessels. However, as the judge found, none of the witnesses gave clear testimony showing how close the water came to the number one and number three machines and there was no testimony stating that the water was ever directly under either machine when any pour from a ladle occurred. Moreover, on the basis of the testimony of Hayes-Albion's foundry superintendent, the judge found that "[t]he evidence strongly shows that respondent took immediate action to prevent the water from flowing to disamatic machines one and three." The judge noted that even the Secretary's witness Spanfellner, who was the fire brigade captain present at the time and a union safety representative, testified that employees were shoveling sand onto the water when he came from the roof to the floor after extinguishing the blaze. Other witnesses presented by the Secretary gave similar testimony. The judge's findings that the water was confined under and around the number two machine, which was not in operation, and that there was insufficient evidence to establish how close the water came to the two machines in operation are fully supported by the record and should be affirmed.

Moreover, the number one machine did not even contain molten metal at the superheated temperatures necessary to cause an explosion hazard because the metal was being pigged out. Only after the water under machine number two was covered with sand and substantially removed was pouring at the higher temperatures resumed at machine number one. The testimony indicates that the number three machine was the least affected by the water and was shut down when water started to trickle toward it. The Secretary therefore failed to establish that any operations at the number one and number three machines created a possibility of explosion from molten metal falling on top of and encapsulating water. Indeed, the authorized employee representative who filed the petition for review in this case argues only that there was a potential for injury because of the proximity of molten metal to water and water-saturated sand. Neither the Secretary nor the authorized employee representative asserts that there was proof of a hazard of explosion from molten metal falling directly onto and encapsulating water during the pouring operation on machines one and three. Because the record does not demonstrate this, Chairman Buckley would accept the judge's credibility findings, affirm the judge's decision and vacate the citation.

Commissioner Cleary would find a violation. It is clear from the record that the foundry industry, safety experts familiar with the foundry industry, and Hayes-Albion itself recognized that the encompassing of water by molten metal creates a severe explosion hazard. Indeed, two citations involving this same hazard had been issued to Hayes-Albion before the inspection in this case. Commissioner Cleary also finds that it is self-evident that conditions in Hayes-Albion's disamatic area could cause death or serious physical harm to employees cleaning up the water. Only small amounts of water and molten metal (less than are present here) are needed to produce an explosion generating a force of 58,000 foot-pounds, the equivalent of a quarter pound of TNT. Yet, in the disamatic area, large amounts of water had spilled within only feet and inches from sources of molten metal, such as autopour vessels, ladles and molds, all of which were known to leak and spill. To vacate this citation because the Secretary failed to prove at a hearing that water happened to trickle directly under molten metal does not at all come to grips with the critical point of this case: At the only relevant time Hayes-Albion could not have had any assurance that molten metal would not have dropped into the water. When the alleged violation occurred, water was leaking under and near autopour vessels containing molten metal. Yet, Hayes-Albion delivered a ladle to autopour vessel number one before the water near it had been removed. It allowed autopour vessel number three to continue operating while water was still draining out of the ductwork and before the water had been cleaned up from the floor. The only question remaining therefore is whether the actions Hayes-Albion did take removed or materially reduced the explosion hazard presented by the accumulation of water. See Chevron Oil Co., 83 OSAHRC 19/B2, 11 BNA OSHC 1329, 1331, 1983-84 CCH OSHD І 26,507, p. 33,722 (No. 10799, 1983), pet. for rev. filed, No. 83-4371 (5th Cir. June 17, 1983). For the reasons that follow, Commissioner Cleary would find that they did not.

The autopour vessels are only seven to eight feet apart; the mold lines are ten to twelve feet apart. In his outline, Smith, Hayes-Albions' foundry superintendent, shows the water as covering two-thirds of the aisle between autopour vessel number one and two. Lieghty, the Disa mold supervisor, testified that a dam was built to keep the water from underneath autopour vessel number one. Two of the Secretary's witnesses, Spanfellner and Albee, each placed the outer edge of the water at autopour vessel number one approximately a third of the way underneath the four foot-wide autopour vessel. Spanfellner testified that there was still a soupy mixture of sand and water within a few feet of autopour vessel number one when Hayes-Albion started to pour molds again after 8 o'clock.

Judge Burroughs held that a prerequisite to proof of an explosion hazard was a showing that molten metal could fall into water. He stated that he was unable to determine from the testimony and outlines of the witnesses how many feet the water was located from the autopour vessels or mold lines. The judge held that only evidence demonstrating that a spill of molten iron would have contacted water would demonstrate the existence of a hazard. But, even if Smith's and Lieghty's views of the extent of the water are credited, the clear possibility of an explosion exists when as much as 1 1/2 tons of molten metal is poured into an autopour vessel a few feet--and certainly no more than 8 feet--from the water. As Dr. Sylvia, the Secretary's expert witness, testified, if a mispour should occur, the molten metal could have flowed out of the ladle--the top of which is as high as thirteen feet above ground--and landed only a few feet from the water. Hayes-Albion's efforts to keep the water away from autopour vessel number one therefore cannot be said to have removed or materially reduced the explosion hazard to the extent feasible.

The same is true with respect to autopour vessel number three. During the cleanup, Hayes-Albion continued to deliver ladles of metal and pour molds at autopour vessel number three. Smith testified that vessel number three did not present a hazard because it was remote from the water. However, he also testified that soon after he returned to the disamatic floor from the roof, he observed a place underneath the ductwork "where the majority of the water was coming down" or "dripping out." Although the water that continued to drain from the ductwork followed an uncertain path, Smith did not immediately order vessel number three shut down, though he could have done so. Instead, he decided to take the risk that the water would not trickle under the vessel. Only after Smith actually saw water trickling underneath vessel number three did he order it shut down. That he won this gamble is fortunate, but it is clear that Hayes-Albion continued to pour iron in a very volatile situation and before it had been brought under control. The general duty clause of the Act requires employers to take feasible steps to prevent hazardous conditions from threatening to become uncontrollable. Hayes-Albion did not take such steps.

Commissioner Cleary would therefore conclude that by delivering ladles of metal at autopour vessels number one and three when water was no more than 7 to 8 feet away, and pouring metal at autopour vessel number three when water was trickling towards it Hayes-Albion failed to free or materially reduce to the extent feasible the explosion hazard in its disamatic area. He would accordingly affirm the section 5(a)(1) citation and reverse the judge's decision. However, he would not characterize Hayes-Albion's conduct as "willful" within the meaning of section 17(a) of the Act, 29 U.S.C. ї 666(a). It did take various steps to reduce the hazard. Its conduct did not demonstrate intentional disregard or plain indifference to the Act.

The two Commission members are divided on whether the judge erred in his disposition in this case.[[3]] To resolve this impasse and to permit this case to proceed to a final resolution, the members have agreed to affirm the judge's decision but accord it the precedential value of an unreviewed judge's decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD І 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir.1979).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 17 1985

FOOTNOTES:

[[1]] Section 5(a)(1) provides that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . ."

[[2]] In his letter in lieu of a brief on review, the Secretary stated that he would not present any argument in favor of reversing the judge's decision and affirming the citation because the judge's findings were based on credibility determinations.

[[3]] As established by the Act, the Commission is composed of three members. Section 12(a), 29 U.S.C. ї 661(a). Under section 12(f) of the Act, 29 U.S.C. ї 661(e). Official action can be taken by the Commission with the affirmative vote of at least two members. Because of a vacancy, the Commission is currently composed of two members.