Empire-Detroit Steel Div., Detroit Steel Corp. v. Occupational Safety and Health Review Com'n

Decision Date22 June 1978
Docket NumberNo. 76-1417,EMPIRE-DETROIT,76-1417
Citation579 F.2d 378
Parties6 O.S.H. Cas.(BNA) 1693, 1978 O.S.H.D. (CCH) P 22,813 STEEL DIVISION, DETROIT STEEL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Sixth Circuit

Hayes C. Stover, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Pa., for petitioner.

William S. McLaughlin, Executive Secretary, Occupational Safety & Health Review Commission, Washington, D. C., U. S. Dept. of Labor, Washington, D. C., Michael H. Levin, Nancy L. Southard, Dept. of Justice, Washington, D. C., for respondents.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and JOHNSTONE, District Judge. *

PHILLIPS, Chief Judge.

This proceeding, before the court on petition to review, involves a $10,000 civil penalty imposed against petitioner, Detroit Steel Corporation, for willful violation of the general duty clause of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), 1 (hereinafter referred to as the Act.) The penalty is the maximum authorized for a willful violation of the general duty clause of the Act. 29 U.S.C. § 666(a).

The principal issue is whether petitioner was in willful violation of the general duty clause of the Act, as found by the administrative law judge. The Occupational Safety and Health Review Commission denied Detroit Steel's petition for discretionary review, and the decision of the administrative law judge became the final order of the Commission. 29 U.S.C. § 666(i). See Brennan v. OSHRC (Hanovia Lamp Division, Canred Precision Industries), 502 F.2d 946, 953 (3d Cir. 1974). Detroit Steel filed a petition to review pursuant to 29 U.S.C. § 666(a).

We affirm.

I.

Petitioner owns and operates an open hearth steel making facility in New Boston, Ohio. Steel products produced at this facility are sold and shipped to eastern and midwestern states of the United States. Ranking 14th among the nation's steel producers with sales of approximately $110 million in 1974, petitioner employed an average of 1800 persons in that year.

From 1957 when petitioner began operations at the New Boston facility until the time of the present litigation, petitioner has operated five open hearth furnaces. These five furnaces operate in identical fashion, although furnace No. 5 is 30-50 tons larger than the other four. Forming a straight line across the front of the facility, these five furnaces are housed in a shed-like structure partially open to the air. The roof of the structure is approximately 150 feet high and covers an area approximately 200 yards long by about 50 yards wide. The furnaces are elevated above the open hearth pit area, an earthen area several hundred yards long and fifty or more yards wide at the rear of the open hearth furnaces. The open hearth pit area is the primary work area of the facility. In this area molten steel is "tapped", i. e., poured from the furnaces into ladles positioned on ladle stools below the furnace tap hole, and "teemed", i. e., poured from the ladles into ingots.

Iron, limestone and other materials are charged from a platform above the pit area through a door in the front of each furnace. As these materials heat to form molten steel, a residue of slag, i. e., impurities, remains on the surface of the steel. Slag constitutes between 15% And 20% Of the weight of the steel in the furnace. Before the steel is tapped from the rear of a furnace, a door in the front of the furnace is opened, thus permitting a large volume of slag to run out in front of the furnace. Slag separated from the steel at this juncture is known as front flush slag.

The furnace is tapped by means of an explosive charge at its rear. Placed under the tap hole, a trough carries the molten steel to the ladles positioned on ladle stools. After the steel has been tapped, slag which did not flow out of the furnace as front flush slag will run into the ladle and float on top of the metal in the ladle. Not infrequently, the slag running into the ladle will overflow the ladle. This slag is known as overflow slag. After the ladle has been tapped from the bottom of the ladle and the steel poured into ingots, approximately 40 tons of slag remain in the ladle. This slag, known as ladle slag, must be disposed of before the ladle can be re-used.

From 1957 until the mid-1960s, slag from all three sources (front flush, overflow and ladle slag) was disposed of by use of slag pots. An electric rail system brought a slag pot beneath a furnace to catch the front flush slag. Slag pots were also provided for overflow and ladle slag. After being filled with molten slag, the pots would be removed to the skullcracker, an area away from the open hearth pit, where the hardened slag was removed and the slag pots readied for re-use.

In 1956, the use of oxygen was introduced into the steel-making process resulting in cutting the time of a tapping cycle from twelve hours to six hours. Petitioner determined that the use of the slag pots was impractical and uneconomical. The administrative law judge found:

Their (the slag pots) use, in an oxygen, assisted open-hearth operation, resulted in "bottlenecking" production since there was no longer time for the filling and removal of the slag pots and their being cleaned, readied and returned for the next tap operation in the new six-hour cycle.

The slag pots were gradually eliminated so that by 1967 no pots were in use. In place of the slag pot, the front flush slag and overflow slag were permitted to fall upon the earthen floor of the open hearth pit. Also, ladle slag was dumped from the ladles onto the ground.

Regardless of which method of slag removal is used, some amounts of water are required in the open hearth pit area for cleaning and cooling ladles and washing down the rear of the furnace. The amounts of water were greatly increased, however, when the slag pots were discontinued and the dumping method employed, because the slag must be cooled sufficiently before bulldozers could remove the slag. Two water sprays under each furnace were used to cool the front flush slag. Water was also used to cool overflow and ladle slag. The quantity of water used and its method of application in cooling the slag were left to the judgment of an employee who is referred to as the "Water Boy."

In removing the slag from the work areas, bulldozers created pits and other depressions in the earthen floor. Excess water collected in these depressions, some pools of water covering areas 30 to 40 feet long, 10 to 15 feet wide and 11 inches deep. Additionally, water accumulated between furnaces in debris dumping holes up to four feet deep.

Beginning with petitioner's switch from using the slag pots to dumping the slag on the ground, numerous explosions occurred in the open hearth pit area by water entrapped by molten slag. If water is covered by molten slag, the water turns to steam which occupies 1600 times the volume of water. The extremely high pressure of trapped steam produces an explosion.

Occurring at least twice a week, these explosions in the main were caused by the dumping of hot ladle slag into puddles or pools of water. Petitioner's Assistant General Manager testified that approximately ten major explosions occurred between 1964 and 1975. An employee of petitioner testified that over a two and one-half year period, ten or twelve explosions occurred throwing hot slag 150 feet in the air to the top of the roof.

The hazard of explosions caused by molten slag coming into contact with water was a continuing topic of discussion between the union and petitioner. An employee who was chairman of the union's safety committee received, over a period of two years, approximately fourteen complaints from employees concerning the hazardous conditions. These conditions were also discussed by employees at safety meetings. The administrative law judge found that "little was done by (petitioner) to correct complaints concerning the presence of water."

In June 1972, water entrapped by molten slag caused an explosion, killing a bulldozer operator. This event precipitated an inspection by a compliance officer of the Secretary of Labor (hereinafter referred to as Secretary). The inspection resulted in a citation charging petitioner with a violation of the general duty clause of the Act, 29 U.S.C. § 654(a)(1), as well as violation of a specific standard, 29 C.F.R. § 1910.22(a)(2). This citation was not challenged by petitioner and thus became a final order of the Commission. 29 U.S.C. § 659(a). Petitioner's open hearth pit was again inspected by a compliance officer in October 1973. This inspection resulted in uncontested citations charging repeated violations of nine violations and failure to abate five other violations.

On September 3, 1974, two serious and violent explosions caused by dumping ladle slag onto the ground where water had accumulated caused injury to ten employees at petitioner's New Boston facility. The same compliance officer who had inspected petitioner's facility in June 1973, again inspected the facility in September 1974. Although petitioner informed the compliance officer of certain measures that were being taken to eliminate the hazard, the officer observed that the conditions he found in the open hearth pit area in June 1973 still existed in September 1974. Petitioner was issued a citation which alleged that on or about September 25, 1974, petitioner willfully violated § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1) by:

(F)ailing to provide a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees in that respondent failed to eliminate the hazards of explosions caused by the pouring or spilling of molten metal or slag onto the ground in areas where water can and has accumulated at...

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