SECRETARY OF LABOR,
THE DURIRON COMPANY, INC.,
UNITED STEELWORKERS OF
AMERICA, LOCAL UNION 3320,
OSHRC Docket No. 77- 2847
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:
This case is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, § 651-678 ("the Act"). Originally, the case involved a series of citations, but only one issue remains to be resolved. Administrative Law Judge J. Paul Brenton vacated a citation which alleged that the extreme heat at Duriron's iron and steel casting machines violated the general duty clause of the Act, section 5(a)(1). [] We reverse Judge Brenton's decision and find that conditions at the casting machines violated section 5(a)(1) of the Act.
Duriron operates a foundry in Dayton, Ohio which produces iron and steel castings. One of the foundry's operations is performed at three centrifugal casting machines. At these machines, an operator receives molten material in a large ladle which is moving overhead on a monorail. After receiving the material, the operator moves the ladle by hand to a position adjacent to the machine. He pours the material by tipping the large ladle into a smaller ladle attached to the machine. One of two operators presses a button or lever, and the smaller ladle automatically pours into the casting machine after which the pourer moves out of the area. A tub called a "pig" receives the excess material from each operation while the material is still hot. The material gradually cools down and is not usable for casting until it is reprocessed.
The operation is, by all accounts, a very hot one. An OSHA compliance officer inspected the foundry, took the temperature in the area around a centrifugal casting machine, and found the temperature was on the average 95(d) F. Duriron officials also took measurements around the time of the inspection and the results ranged from 92(d) F to 99(d) F. At other times, the temperature in the area has reached as high as 115(d) F.
As a result of this inspection the Secretary cited Duriron for violating section 5(a)(1) of the Act. The portion of the citation which is now in contest alleges:
"The employer did not furnish his employees working in the centrifugal [sic] pipe casting department (#746) employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that heat stress measurements exceeded the natural wet bulb-globe temperature index (WBGT) for heavy work in hot environments recommended by NIOSH, OSHA and the Threshold Limit Values for Physical Agents adopted by the ACGIH for 1976. While employees exhibited physiological effects characteristic of heat stress, the employer did not institute work practices including: (1) an acclimatization policy, (2) work-rest regimens, (3) preemployment and periodic examinations to determine employee fitness in hot work locations, (4) informing and training of employees in safety and health procedures with respect to hot work locations and in recognition and treatment of heat disorders, (5) initial and periodic measurements of hot work locations to define the employee's heat exposure, (6) shields, covers, or personal protective clothing to protect employees from heat, and (7) engineering controls to reduce the heat load in hot work locations;"
Exposure to excessive heat can result in heat exhaustion and heat stroke. At high temperatures, the body circulates great amounts of blood to the skin in an effort to eliminate heat through perspiration. As a result, less blood is circulated to the body's vital organs including the brain. Heat exhaustion can lead to dizziness, nausea, and eventual collapse. If not treated promptly by lowering the body temperature, a person suffering from heat exhaustion could suffer brain damage.
Beyond heat exhaustion is heat stroke. The Secretary's expert medical witness testified that during heat stroke the body stops sweating, making it impossible to dissipate heat. The body temperature may rise to a dangerously high level and cause death.
The dangerous effects of high temperatures can be minimized in several ways. First, people working in hot environments should drink plenty of liquids to replenish the body liquids lost through perspiration. Second, people can be acclimatized, or gradually introduced, to the hot environment. If a person is exposed to a hot environment for progressively longer periods over the course of a week, the body gradually builds a tolerance to the high temperatures.
Workers assigned to the casting machine did not receive instructions about the possible effects of the heat nor were they acclimatized to the heat. They were exposed to the heat for about fifty minutes out of each working hour. Water and salt tablets were available and fans were located near the area to allow workers to cool off between pourings. Foremen were instructed in the problems concerning heat exhaustion in first aid courses.
An incident which highlights the problem of the extreme heat occurred at the casting machines shortly before the inspection. On July 5, a Duriron employee, Paul McDonald, was assigned to work on a centrifugal casting machine. Although it was his first time working in this hot a job, McDonald was given no warnings or instructions about the heat. After about ninety minutes at the casting machine, McDonald began to "black out." The operator's work station at the casting machine is very near molten metal and moving parts of the machine. Duririon's job description states that the operator is exposed to hazards of rotating machinery, and the top of the pig, which contains molten metal, is below the operator's waist level. McDonald testified that on July 5, "I was worried about myself . . . passing out, you could fall the wrong way and it would be all over with you." Eventually, McDonald felt so weak that he took himself off the job and reported to the nurses office. The Duriron nurses gave McDonald Gatorade and checked his blood pressure and temperature.
The next day, McDonald reported to the nurses station where his blood pressure was checked. He was advised to stay as cool as possible and drink fluids. McDonald followed these instructions. However, five to six hours into the day, he experienced dizziness and on his way to a fan to cool off, "passed out cold." McDonald was taken to the medical office where, once again, he was given fluids and had his blood pressure and temperature checked. The nurses refused to allow him to work in the casting area when he reported for work the next day.
Judge Brenton vacated the 5(a)(1) citation. He reasoned that while the evidence established that heat stress was a recognized hazard and Duriron's foundry was not free of the hazard of extreme heat, "the evidence does show that heat stress was not recognized as a hazard causing or likely to cause death or serious harm in hot environmental workplaces such as Respondent's facility." Judge Brenton also stated that an incident in which an employee would collapse and fall into molten metal was not likely to happen because of the precautions taken by Duriron.
The Secretary petitioned for review of this issue. Commissioner Cottine directed review on the following questions:
Whether the judge erred in concluding that the Secretary did not establish a violation of 29 U.S.C. § 654(a)(1), section 5(a)(1) of the Act.
Whether the judge erred in concluding that 'heat stress is not recognized in the industry as causing or likely to cause death or serious physical harm to its victims.'
In order to establish a section 5(a)(1) violation, the Secretary must prove:
(1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was 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. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); United States Steel Corp., 82 OSAHRC 35/A2, 10 BNA OSHC 1752, 1982 CCH OSHD ¶ 26,123 (No. 77-1796, 1982).
Judge Brenton found that the Duriron foundry was not free of the hazards associated with heat stress, and that finding is supported by the record. The record amply demonstrates that excessive heat can cause various safety and health problems. Heat exhaustion can result in dizziness and fainting. Depending upon were the employee collapses he may be harmed by the fall, and if left untreated, heat exhaustion can result in brain damage. In extreme situations, excessive heat can result in a fatal heat stroke.
Measurements taken at different times in the casting area place the temperature at 92(d) F. to 115(d) F. The Secretary's expert, Dr. Dukes-Dobos, testified that fatal heat stroke can occur at temperatures as low as 86(d) F., but most often begins to occur at over 100(d) F. In short, heat exhaustion and heat stroke could occur at the temperatures found at the casting machine area. The incident in which McDonald passed out supports this testimony.
Concerning recognition of the hazard, Duriron's own job description characterized the casting machine job as a "hot" one where workers were exposed to "extreme heat." Duriron also gave its foremen a standard Red Cross first aid course, which included training in problems associated with excessive heat including heat stroke and heat exhaustion. Finally, the Secretary's expert witness on heat stress, Dr. Dukes-Dobos, testified that management of industries, including foundries, of which he was aware knew of the problems of heat stress and the need for taking certain precautions.[]
Judge Brenton found that heat stress was not likely to cause death or serious injury in Duriron's workplace. He reasoned that an incident in which an employee would suffer death or serious harm was not likely to occur. However, the Commission has held that the term "likely" in the general duty clause does not refer to the likelihood of an incident occurring but to the likelihood of serious injury in the event an incident occurs. In R.L. Sanders Roofing Co., 79 OSAHRC 61/D7, 7 BNA OSHC 1566, 1570 1979 CCH OSHD ¶ 23,756 at p. 28,805 (No. 76-2690, 1979), enforcement denied, 620 F.2d 97 (5th Cir. 1980) the Commission stated:
We believe that the remedial purposes of the Act are better served by interpreting section 5(a)(1) to require that the workplace be kept free of recognized hazards which, if an accident occurs, are likely to cause death or physical harm regardless of whether an accident is likely to occur.
(emphasis in the original).
Here, if an incident occurred it is likely that the result would be death or serious injury. Unrebutted expert testimony established the serious medical repercussions, including possible brain damage, because of heat exhaustion and heat stroke. In this case, the chances of serious injury or death were enhanced because of the proximity of molten metal and moving machinery to the casting machine work station. If the casting machine operator was overcome by heat exhaustion, he might collapse into the molten metal and moving machinery. McDonald himself testified he was concerned about this possibility.
When employees are exposed to high temperatures for extended periods of time, it is incumbent upon employers to take feasible steps to materially reduce common hazards associated with extreme heat. This is especially true when employees are working, as in this case, around potentially dangerous machinery and materials. If an employer fails to institute the necessary administrative changes and provide its workers with adequate personal protective equipment to cope with extreme heat, it will be in violation of the general duty clause of the Act.
Duriron's precautions were inadequate given the heat and potential danger. Dr. Dukes- Dobos testified that there are several other feasible precautions which other industries have regularly taken and which Duriron could have taken to alleviate the danger of the extreme heat, such as acclimatizing employees and giving them. specific instructions and warnings concerning the effects of the heat. Also, after the inspection, Duriron covered the pig containing excess molten metal, which both reduced the heat radiated into the operator's work station and lessened the danger that an employee overcome by the heat would fall into molten metal.[]
Since the Secretary has established all the elements of a section 5(a)(1) violation, Judge Brenton's decision is reversed and the citation is affirmed. After considering the factors enumerated in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a penalty of $200. Duriron exhibited good faith by taking certain steps, albeit inadequate, to protect employees exposed to the hazard of heat stress. However, the severity of possible injury from an incident requires that more than a nominal penalty be assessed.[] SO ORDERED.
FOR THE COMMISSION
RAY H. DARLING, JR.
DATED: APR 27 1983
[] Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:
Sec. 5(a)(1) Each employer--
(a) 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.
[] In 1972, the National Institute for Occupational Safety and Health ("NIOSH") suggested a standard for exposure to heat. Pursuant to sections 6(b)(1) and 7(b) of the Act, 29 U.S.C. §§ 655(b)(1) and 656(b), an advisory committee recommended to the Secretary that he adopt the NIOSH recommendation as a mandatory OSHA standard. However, the Secretary did not subsequently propose or adopt any standard governing heat stress.
Duriron strenuously argues that this enforcement action is improper and a violation of due process because the Secretary is trying to enforce a recommended standard for exposure to heat under the guise of a section 5(a)(1) violation.
We reject this argument. The Secretary did not attempt to enforce the recommended NIOSH standard. Rather, the Secretary used the recommended standard as general evidence of the hazard and industry recognition of the hazard. This is permissible. See Cargill Inc., Nutrena Feed Division, 82 OSAHRC 11/A2, 10 BNA OSHC 1398, 1982 CCH OSHD ¶ 25,935 (No. 78-5707, 1982.)
Furthermore, if the Commission were to accept Duriron's argument, it would mean that any time a standard is recommended to the Secretary the Secretary is precluded from enforcing the general duty clause with respect to the hazards encompassed in the suggested regulation. Though a standard may have been recommended, and not promulgated, this does not necessarily mean that the Secretary concluded that a hazard did not exist, or is otherwise objective evidence that a hazard does not exist. This is particularly true in the face of testimony and evidence as in this case that heat stroke and heat exhaustion are recognized hazards. We do not believe worker safety and health is best served by such a restricted application of the minimum protections of the general duty clause. See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 514 (8th Cir. 1974) (Secretary can cite employer under general duty clause even though a specific standard regulating the hazard has yet to become effective).
[] The citation, quoted supra, alleged that Duriron should have also taken other precautions to reduce the hazard of heat stress. For the purpose of disposing of this case, we need not decide whether the Secretary proved the feasibility and likely utility of all of these means. It is sufficient to observe that the record establishes that some feasible precautions were available to Duriron to materially reduce the hazard. See Litton Systems, Inc., Ingalls Shipbuilding Div., 81 OSAHRC 101/C12, 10 BNA OSHC 1179, 1982 CCH OSHD ¶ 25,817 (No. 76-900, 1981). If these measures do not entirely eliminate the hazard, then Duriron must determine whether additional precautions are feasible. See Kelly Springfield Tire Co., 83 OSAHRC 47/36, 10 BNA OSHC 1970, 1975 n. 5, 1982 CCH OSHD ¶ 26,223 at p. 33,114 n. 5 (No. 78-4555, 1982), appeal filed, No. 82-4389 (5th Cir. Oct. 6, 1982).
[] We note that the dissent relies on untrained employees to remove themselves from the hazardous environment before the onset of serious injury and on subsequent medical treatment to negate either the existence or seriousness of a hazard. This clearly contravenes the purpose of section 5(a)(1). See 29 U.S.C. § 651(b); General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979); National Realty & Constr. Co. v. OSHRC, supra; Beaird-Poulan, A Div. of Emerson Electric, 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 OSHD ¶ 23,493 (No. 12600, 1979); S & H Riggers & Erectors Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), rev'd, 659 F.2d 1,273 (5th Cir. 1981).