Babcock & Wilcox Co. v. Occupational Safety and Health Review Commission, 79-1371

• Decision Date: 15 May 1980
• Docket Number: No. 79-1371,79-1371
• Citation: 622 F.2d 1160
• Parties: 8 O.S.H. Cas.(BNA) 1317, 1980 O.S.H.D. (CCH) P 24,485 The BABCOCK & WILCOX COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 1160

622 F.2d 1160

8 O.S.H. Cas.(BNA) 1317, 1980 O.S.H.D. (CCH) P 24,485

The BABCOCK & WILCOX COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, Respondents.

No. 79-1371.

United States Court of Appeals Third Circuit.

Argued Jan. 11, 1980.

Decided May 15, 1980.

Francis Carling (argued), Sullivan & Cromwell, New York City, for petitioner.

Thomas L. Holzman (argued), Rita E. Selligson, Allen H. Feldman, Carin A. Clauss, Sol. of Labor, Washington, D. C., Marshall H. Harris, Regional Sol., Philadelphia, Pa., Nancy L. Southard, U. S. Dept. of Labor, Washington, D. C., for respondent Secretary of Labor.

Benjamin W. Mintz, Associate Sol. for OSHA, Ronald R. Glancz, Marleigh Dover Lang, OSHRC, Washington, D. C., for respondent OSHRC.

Before SEITZ, Chief Judge, and ADAMS and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

The combination of molten steel and water can cause an explosion and injury to those nearby. In this OSHA case, the employer was found to have committed a serious and willful violation of the general duty clause when molten metal was poured into a large ladle despite the presence of water on the floor of the steel plant. Because the record does not demonstrate the degree of culpability required, we vacate the finding of willfulness. The case will be remanded to the Commission, however, for reconsideration of the penalty since the record supports the finding of a serious violation of the Act.

As a result of an inspection on August 17, 1977, a Department of Labor compliance officer issued a citation to the Babcock & Wilcox Company alleging a willful violation of the general duty clause of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1976 & Supp. II 1978), ¹ and proposed a penalty of $10,000. After a hearing before an Occupational Safety and Health Review Commission administrative law judge, the offense was rated as serious and willful, but the penalty was reduced to $3,000. When no member of the Commission asked for review, the report became a final order, 29 U.S.C. § 661(i) (Supp. II 1978), and the company petitioned this court for review under 29 U.S.C. § 660(a) (1976).

I.

Babcock & Wilcox manufactures steel tubing at its plant in Beaver Falls, Pennsylvania. In the "No. 2 melt shop" is an electric arc furnace that rests on two concrete piers and has a platform about 12 feet above ground for the use of the crew. The furnace is designed to melt scrap steel and has a capacity of 75 tons. Scrap is placed into the furnace over a period of five to eight hours until all of the contents have become molten. When the furnace is ready to be tapped, it is tipped forward and the molten metal is poured into a ladle, also with a 75 ton capacity. The ladle is mounted on a carriage that moves away from the furnace on rails to a position over a pouring pit. At that point, the steel is discharged into ingot molds through a nozzle set in the bottom of the ladle. A "stopper," which acts like a valve, controls the flow of metal through the nozzle.

At about 6 a.m. on August 17, water spilled from a malfunctioning "bosh," a drain forming part of the furnace cooling system. The water flowed over the platform and then to the floor below. The bosh was repaired and some, but not all, of the water on the floor in the area between the furnace and the pouring pit was removed. A puddle had formed along the right side of the track near the furnace, and the area between the puddle and the furnace was wet. A hot, five-ton mold was placed in the puddle to dry it, and dolomite, a granular material, was put down to keep water out of the pouring pit. In addition, two 50-pound sacks of "Quick-Dry," an absorbent material, were poured onto the water between the puddle and the furnace. Although the pallet stored nearby has a capacity of 36 sacks of Quick-Dry, these two were all that were available.

When the shift changed at 8 a.m., Robert Corcoran, the day-shift melter in charge of the No. 2 shop, came on duty. After learning of the bosh leak, he investigated the area in front of the furnace. Corcoran saw the water to the right of the tracks but did not see the ground directly in front of the furnace between the two rails of track because the ladle car was in position there. He made no effort to move the car and inspect the area beneath it but called a labor foreman to bring some men and Quick-Dry to finish cleaning up the spill. Because the nearby storeroom supply was exhausted, the foreman had to get a truck to carry a full pallet from the main plant one or two miles away. It was about noon when he returned to the melt shop.

At about 11:30 a.m., a Department of Labor compliance officer walked through the area on his way to perform an inspection at another part of the plant. He made no comment about the water at that time and returned about half an hour later accompanied by a union safety representative. When the crew began to tap the furnace, four employees were working in the vicinity, with the pitman 15 to 30 feet away. No objection to tapping was made by either the compliance officer or the union representative who were observing, and the loaded ladle was moved to the pouring pit without incident.

After the ladle had been rolled away from the furnace, the compliance officer stepped into the area between the rails where the car had been. He found that the ground was saturated, although the water had not puddled. About this time the labor foreman returned with the Quick-Dry, and he and his men began to remove the water.

At a conference with company officials following the inspection, the compliance officer characterized the presence of the water on the floor as a "serious" matter. Some weeks later, he cited the company for a "willful" violation and proposed a penalty of $10,000, the maximum civil penalty authorized for the offense. See 29 U.S.C. § 666 (1976). The company filed a timely notice of contest, and an administrative hearing was held. See id. § 659(a), (c); 29 U.S.C. § 661(i) (Supp. II 1978).

The ALJ found that approximately 120 to 220 gallons of water spilled near the furnace, accumulating in a puddle to the right of the track and saturating the area between the rails where the ladle was positioned when the furnace was tapped. ² The company admitted it is commonly recognized in the steel industry that if water is enveloped by molten metal an explosion may result, and it is not disputed that there were two possibilities of molten metal escaping here: one, a "cut-through," which happens when a hole develops in the furnace lining; the other, a "runner," which occurs when metal unexpectedly flows through the ladle nozzle because the stopper is improperly seated.

In the absence of improper maintenance, a cut-through is an unpredictable, occasional occurrence. It was unlikely but possible that if one occurred, some molten metal might have reached the puddled area to the right of the tracks. Most of the metal would solidify before reaching that point, however, and what remained liquid might only create steam by pushing, rather than enveloping, the water. If a cut-through occurred in the very bottom of the furnace, molten metal would reach the area between the rails. A runner, somewhat more common than a cut-through, also would have allowed molten metal to run out into the area between the rails, in which event, according to some testimony, the ladle car would absorb most of the explosion.

The ALJ found that it was likely, but not certain, that the employees would have been able to leave the area before an explosion resulted from the metal reaching the water to the right of the tracks. But if they remained within range, he concluded that blobs or globs of molten metal could cause burns serious enough to require hospitalization.

There also were findings that the company had violated its announced safety policy of immediately removing water spilled in the vicinity of molten metal and had been remiss in failing to discover that water was present in the depression between the ladle tracks. In addition, the ALJ concluded that the furnace should not have been tapped until the water was removed, although it is uncommon in the industry to hold a fully-laden furnace.

The ALJ conceded that Corcoran did not know there was moisture between the rails but found that he was aware of the puddle to the right of the tracks and nevertheless took a chance, "albeit with good odds," that molten metal would not escape and envelop enough water to cause an explosion. The ALJ characterized Corcoran's conduct as "reckless" and, given the gravity of potential physical harm to employees, designated the offense as serious and willful. The Secretary's recommendation of a penalty of $10,000 was reduced to $3,000.

The company contends that there was no violation of the general duty clause and, in any event, no willfulness. These are discrete issues, and we will consider them separately.

II.

The general duty clause requires an employer to "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." 29 U.S.C. § 654(a)(1) (1976). The duty imposed by the clause is intended to be achievable; only preventable hazards are required to be eliminated. Therefore, a hazard is "recognized" only when the Secretary demonstrates that feasible measures can be taken to reduce materially the likelihood of death or serious physical harm resulting to employees. Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 543-45 (9th Cir. 1978); Empire-Detroit Steel v. OSHRC, 579 F.2d 378, 384 (6th Cir. 1978); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1265-67 (D.C.Cir. 1973). Moreover, either the employer must be aware of the hazard's existence, or, if he is ignorant of it, the industry must generally guard against it....