“Docket No. 77-2847 SECRETARY OF LABOR,Complainant, v.THE DURIRON COMPANY, INC., Respondent. UNITED STEELWORKERS OF AMERICA, LOCAL UNION 3320,Authorized EmployeeRepresentative.OSHRC Docket No. 77- 2847DECISION 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), ofthe 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 beresolved. Administrative Law Judge J. Paul Brenton vacated a citation which alleged thatthe extreme heat at Duriron’s iron and steel casting machines violated the general dutyclause of the Act, section 5(a)(1). [[1]] We reverse Judge Brenton’s decision and findthat conditions at the casting machines violated section 5(a)(1) of the Act.I Duriron operates a foundry in Dayton, Ohio which produces iron and steel castings. One ofthe foundry’s operations is performed at three centrifugal casting machines. At thesemachines, an operator receives molten material in a large ladle which is moving overheadon a monorail. After receiving the material, the operator moves the ladle by hand to aposition adjacent to the machine. He pours the material by tipping the large ladle into asmaller ladle attached to the machine. One of two operators presses a button or lever, andthe smaller ladle automatically pours into the casting machine after which the pourermoves out of the area. A tub called a \”pig\” receives the excess material fromeach operation while the material is still hot. The material gradually cools down and isnot usable for casting until it is reprocessed.The operation is, by all accounts, a very hot one. An OSHA compliance officer inspectedthe foundry, took the temperature in the area around a centrifugal casting machine, andfound the temperature was on the average 95(d) F. Duriron officials also took measurementsaround the time of the inspection and the results ranged from 92(d) F to 99(d) F. At othertimes, 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] pipecasting department (#746) employment and a place of employment which was free fromrecognized hazards that were causing or were likely to cause death or serious physicalharm to his employees in that heat stress measurements exceeded the natural wet bulb-globetemperature index (WBGT) for heavy work in hot environments recommended by NIOSH, OSHA andthe Threshold Limit Values for Physical Agents adopted by the ACGIH for 1976. Whileemployees exhibited physiological effects characteristic of heat stress, the employer didnot institute work practices including: (1) an acclimatization policy, (2) work-restregimens, (3) preemployment and periodic examinations to determine employee fitness in hotwork locations, (4) informing and training of employees in safety and health procedureswith 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 heatexposure, (6) shields, covers, or personal protective clothing to protect employees fromheat, 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 hightemperatures, the body circulates great amounts of blood to the skin in an effort toeliminate heat through perspiration. As a result, less blood is circulated to the body’svital organs including the brain. Heat exhaustion can lead to dizziness, nausea, andeventual collapse. If not treated promptly by lowering the body temperature, a personsuffering from heat exhaustion could suffer brain damage.Beyond heat exhaustion is heat stroke. The Secretary’s expert medical witness testifiedthat 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, peopleworking in hot environments should drink plenty of liquids to replenish the body liquidslost through perspiration. Second, people can be acclimatized, or gradually introduced, tothe hot environment. If a person is exposed to a hot environment for progressively longerperiods over the course of a week, the body gradually builds a tolerance to the hightemperatures.Workers assigned to the casting machine did not receive instructions about the possibleeffects of the heat nor were they acclimatized to the heat. They were exposed to the heatfor about fifty minutes out of each working hour. Water and salt tablets were availableand fans were located near the area to allow workers to cool off between pourings. Foremenwere instructed in the problems concerning heat exhaustion in first aid courses.An incident which highlights the problem of the extreme heat occurred at the castingmachines shortly before the inspection. On July 5, a Duriron employee, Paul McDonald, wasassigned to work on a centrifugal casting machine. Although it was his first time workingin this hot a job, McDonald was given no warnings or instructions about the heat. Afterabout ninety minutes at the casting machine, McDonald began to \”black out.\” Theoperator’s work station at the casting machine is very near molten metal and moving partsof the machine. Duririon’s job description states that the operator is exposed to hazardsof rotating machinery, and the top of the pig, which contains molten metal, is below theoperator’s waist level. McDonald testified that on July 5, \”I was worried aboutmyself . . . passing out, you could fall the wrong way and it would be all over withyou.\” Eventually, McDonald felt so weak that he took himself off the job and reportedto the nurses office. The Duriron nurses gave McDonald Gatorade and checked his bloodpressure and temperature.The next day, McDonald reported to the nurses station where his blood pressure waschecked. He was advised to stay as cool as possible and drink fluids. McDonald followedthese instructions. However, five to six hours into the day, he experienced dizziness andon his way to a fan to cool off, \”passed out cold.\” McDonald was taken to themedical office where, once again, he was given fluids and had his blood pressure andtemperature checked. The nurses refused to allow him to work in the casting area when hereported for work the next day.Judge Brenton vacated the 5(a)(1) citation. He reasoned that while the evidenceestablished that heat stress was a recognized hazard and Duriron’s foundry was not free ofthe hazard of extreme heat, \”the evidence does show that heat stress was notrecognized as a hazard causing or likely to cause death or serious harm in hotenvironmental workplaces such as Respondent’s facility.\” Judge Brenton also statedthat an incident in which an employee would collapse and fall into molten metal was notlikely to happen because of the precautions taken by Duriron.The Secretary petitioned for review of this issue. Commissioner Cottine directed review onthe following questions:Whether the judge erred in concluding that the Secretary did not establish a violation of29 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 industryas causing or likely to cause death or serious physical harm to its victims.’IIIn 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 wasrecognized 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 materiallyreduced the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10thCir. 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 withheat stress, and that finding is supported by the record. The record amply demonstratesthat excessive heat can cause various safety and health problems. Heat exhaustion canresult in dizziness and fainting. Depending upon were the employee collapses he may beharmed by the fall, and if left untreated, heat exhaustion can result in brain damage. Inextreme 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 strokecan occur at temperatures as low as 86(d) F., but most often begins to occur at over100(d) F. In short, heat exhaustion and heat stroke could occur at the temperatures foundat the casting machine area. The incident in which McDonald passed out supports thistestimony.Concerning recognition of the hazard, Duriron’s own job description characterized thecasting machine job as a \”hot\” one where workers were exposed to \”extremeheat.\” Duriron also gave its foremen a standard Red Cross first aid course, whichincluded training in problems associated with excessive heat including heat stroke andheat 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 knewof the problems of heat stress and the need for taking certain precautions.[[2]]Judge Brenton found that heat stress was not likely to cause death or serious injury inDuriron’s workplace. He reasoned that an incident in which an employee would suffer deathor 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 anincident occurring but to the likelihood of serious injury in the event an incidentoccurs. 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 section5(a)(1) to require that the workplace be kept free of recognized hazards which, if anaccident occurs, are likely to cause death or physical harm regardless of whether anaccident is likely to occur. (emphasis in the original).Here, if an incident occurred it is likely that the result would be death or seriousinjury. 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 moltenmetal and moving machinery to the casting machine work station. If the casting machineoperator was overcome by heat exhaustion, he might collapse into the molten metal andmoving machinery. McDonald himself testified he was concerned about this possibility.When employees are exposed to high temperatures for extended periods of time, it isincumbent upon employers to take feasible steps to materially reduce common hazardsassociated with extreme heat. This is especially true when employees are working, as inthis case, around potentially dangerous machinery and materials. If an employer fails toinstitute the necessary administrative changes and provide its workers with adequatepersonal protective equipment to cope with extreme heat, it will be in violation of thegeneral 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 industrieshave regularly taken and which Duriron could have taken to alleviate the danger of theextreme heat, such as acclimatizing employees and giving them. specific instructions andwarnings concerning the effects of the heat. Also, after the inspection, Duriron coveredthe pig containing excess molten metal, which both reduced the heat radiated into theoperator’s work station and lessened the danger that an employee overcome by the heatwould fall into molten metal.[[3]]Since the Secretary has established all the elements of a section 5(a)(1) violation, JudgeBrenton’s decision is reversed and the citation is affirmed. After considering the factorsenumerated 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 protectemployees exposed to the hazard of heat stress. However, the severity of possible injuryfrom an incident requires that more than a nominal penalty be assessed.[[4]] SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 27 1983 The Administrative LawJudge decision in this matter is unavailable in this format. To obtain a copy of thisdocument, please request one from our Public Information Office by e-mail ( [email protected] ) , telephone (202-606-5398),fax (202-606-5050), or TTY (202-606-5386)FOOTNOTES: [[1]] 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 arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2]] In 1972, the National Institute for Occupational Safety and Health(\”NIOSH\”) suggested a standard for exposure to heat. Pursuant to sections6(b)(1) and 7(b) of the Act, 29 U.S.C. ?? 655(b)(1) and 656(b), an advisory committeerecommended to the Secretary that he adopt the NIOSH recommendation as a mandatory OSHAstandard. However, the Secretary did not subsequently propose or adopt any standardgoverning heat stress.Duriron strenuously argues that this enforcement action is improper and a violation of dueprocess because the Secretary is trying to enforce a recommended standard for exposure toheat under the guise of a section 5(a)(1) violation.We reject this argument. The Secretary did not attempt to enforce the recommended NIOSHstandard. Rather, the Secretary used the recommended standard as general evidence of thehazard 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 anytime a standard is recommended to the Secretary the Secretary is precluded from enforcingthe general duty clause with respect to the hazards encompassed in the suggestedregulation. Though a standard may have been recommended, and not promulgated, this doesnot necessarily mean that the Secretary concluded that a hazard did not exist, or isotherwise objective evidence that a hazard does not exist. This is particularly true inthe face of testimony and evidence as in this case that heat stroke and heat exhaustionare recognized hazards. We do not believe worker safety and health is best served by sucha restricted application of the minimum protections of the general duty clause. SeeAmerican 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 standardregulating the hazard has yet to become effective).[[3]] The citation, quoted supra, alleged that Duriron should have also taken otherprecautions to reduce the hazard of heat stress. For the purpose of disposing of thiscase, we need not decide whether the Secretary proved the feasibility and likely utilityof all of these means. It is sufficient to observe that the record establishes that somefeasible precautions were available to Duriron to materially reduce the hazard. See LittonSystems, Inc., Ingalls Shipbuilding Div., 81 OSAHRC 101\/C12, 10 BNA OSHC 1179, 1982 CCHOSHD ? 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 KellySpringfield 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).[[4]] We note that the dissent relies on untrained employees to remove themselves from thehazardous environment before the onset of serious injury and on subsequent medicaltreatment to negate either the existence or seriousness of a hazard. This clearlycontravenes the purpose of section 5(a)(1). See 29 U.S.C. ? 651(b); General DynamicsCorp., 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 OSAHRC21\/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).”