“Docket No. 79-1146 SECRETARY OF LABOR, Complainant, v.CON AGRA, INC., McMILLAN COMPANY DIVISION, Respondent,AMERICAN FEDERATION OF GRAIN MILLERS LOCAL 118, Authorized Employee Representative.OSHRC Docket No. 79-1146DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:This case presents the question whether an employer operating a grainelevator is required, under section 5(a)(1) of the Occupational Safety and Health Act of1970, [[1\/]] 29 U.S.C. ?? 651-678 (\”the Act\”), to test the atmosphere andgrain within arriving railroad cars for the presence of pesticides before employees enterthe car to gather grain for grading purposes.\u00a0 Judge Wienman granted Respondent’smotion to dismiss the complaint at the close of the Secretary’s presentation of evidence.\u00a0 For the reasons that follow, we believe the Secretary has presented evidencesufficient to establish a prima facie case of a violation of section 5(a)(1) of the Act.\u00a0 We therefore vacate the judge’s decision and remand for further proceedings,including the opportunity for Respondent to present evidence to rebut the Secretary’scase.IRespondent, Con Agra, Inc., McMillan Co. Division (\”Con Agra\”), is engaged inthe grain handling business and operates a grain elevator in Superior, Wisconsin.\u00a0 Grain arrives at this facility by railroad car.\u00a0 An employee of Con Agra thenenters the car with a long handled probe and obtains a grain sample from various areas inthe car to grade the grain for quality.\u00a0 As part of the grading procedure, theemployee sniffs the grain to detect moldiness or staleness.Some railroad cars contain grain which has been fumigated with pesticides.\u00a0 Employees generally identify cars containing fumigated lading either by the odoremanating from the cars or by the presence of a placard indicating that the lading hasbeen fumigated. [[2\/]]\u00a0 If a car is placarded or has an odor, Con Agra tests the caratmosphere for gas before an employee enters to gather a grain sample.\u00a0 If the levelsare excessive, then the doors are opened to air the car out for a couple of days prior toretesting the car’s atmosphere.\u00a0 During the summer, one to five or six cars a daywould arrive either containing a placard or emitting an odor. However, placards on carsare often hard to read, may at times be missing even though the grain has been fumigated,or may pertain to a prior shipment.\u00a0 Also, a car may contain pesticide-treated grainbut lack a detectable odor.\u00a0 For example, methyl bromide does not have a detectableodor. [[3\/]]\u00a0 In addition, the odor thresholds for detecting carbon tetrachloride andphosphine are above permissible concentration levels as listed in 29 C.F.R. ? 1910.1000.[[4\/]]On November 1 and 2, 1978, the Secretary’s industrial hygienist, RobertHager, conducted a general inspection of Con Agra’s facility.\u00a0 He tested theatmosphere inside railroad boxcars containing grain for the presence of methyl bromide,carbon tetrachloride, and phosphine, but did not detect the presence of any pesticides.\u00a0 An air sampler attached for three hours to an employee engaged in grain samplingrevealed his exposure to very small amounts of methyl bromide (0.02 ppm) and carbontetrachloride (0.3 ppm), well below the permissible 8-hour time weighted averageconcentration limit established by section 1910.1000 of 10 ppm for carbon tetrachlorideand the ceiling concentration limit of 20 ppm for methyl bromide.\u00a0 The complianceofficer stated that the citation had been issued to require testing prior to an employee’sentering the car because the presence of an odor or placard does not reliably indicatewhether grain had been treated with toxic pesticides.Daniel Jezierski, a chief inspector employed by International Multi-Foods,(\”IMF\”) Grain Elevator No. 6 in Duluth, Minnesota, stated that his company begantesting all arriving railroad cars for pesticides when they determined that only one outof approximately every fifteen arriving cars containing pesticide-treated grain wasplacarded.\u00a0 Mr. Jezierski also stated that, at the IMF elevator, five out of sixtyarriving cars were treated.\u00a0 He stated that employees at IMF, including himself, hadbecome sick from sniffing grain treated with pesticides.\u00a0 IMF began testing allarriving railroad cars for pesticides in April 1979, and had been testing all arrivingtrucks since about August 1976.Thomas Richard, currently an OSHA industrial hygienist and formerly anindustrial hygienist for the State of Wisconsin for ten years and a professor inindustrial hygiene at the University of Wisconsin for two years, described the harmfuleffects of exposure to methyl bromide, carbon tetrachloride, and phosphine.\u00a0 Methylbromide affects the central nervous system over a period of time and can causeaccumulation of fluid in the lungs.\u00a0 Acute or temporary effects would be severe burnsto lung tissue.\u00a0 Mr. Richard stated that carbon tetrachloride affects primarily thekidneys and the liver.\u00a0 Phosphine affects the entire body, but it most notably causeslung dysfunction by causing the lung to fill with fluid.\u00a0 He testified that thesechemicals have poor warning properties by odor, and that while placarding cars containingpesticide-treated grain is very desirable and required, it is not fail-safe since placardsmay fall off or cars with treated grain may not be placarded.[[5\/]]\u00a0 He stated thatthe device used to test for pesticides at the IMF grain elevators, called a Bendix Gastec,is a length-of-stain testing device which is used by the Labor Department.\u00a0 It isvery easy to use and has a good sensitivity range, from high to low concentrations.\u00a0 Also, there are a number of other instruments available which would also measurepesticide concentrations.\u00a0 Mr. Richard testified that because of the severe toxiceffects these chemicals have on the nervous system and the body, it is prudent todetermine whether these chemicals are present and avoid exposure rather than to firstexpose employees and then try to measure what concentrations they were exposed to.The Secretary also introduced into evidence a methyl bromide label from a DowChemical Co. fumigant can which details the hazard posed by the pesticide, and which notesthe importance of mechanical testing prior to human entry into a treated area. The labelstated in part:HANDLING PRECAUTIONSDow Methyl Bromide is a highly hazardous material and must be handled withcare.\u00a0 Observe the following precautions.(8) Do not enter a treated area without a gas mask unless you have checkedthe area with a halide leak detector to make sure dangerous concentrations of gas are notpresent.\u00a0 If there is any doubt, wear a gas mask.II As a result of the inspection, the Secretary issued to Con Agra a citation allegingviolation of section 5(a)(1) of the Act in that the atmosphere and the grain inside everyrailroad boxcar was not tested for pesticides prior to an employee entering the car.\u00a0 A hearing was held on August 7, 1979, at which time Local 118, American Federationof Grain Millers (\”the Union\”) requested and was granted party status.\u00a0 Atthe close of the Secretary’s case, Con Agra moved to dismiss the alleged section 5(a)(1)violation.\u00a0 Judge Wienman found that employees frequently entered untested boxcarsand sniffed grain samples, \”thereby risk[ing] exposure to excessive amounts of methylbromide, carbon tetrachloride and phosphine, toxic substances known to cause cardiac,nervous system and vital organ damage.\”\u00a0 However, Judge Wienman vacated thecitation, concluding that the evidence failed to establish industry recognition of ahazard.\u00a0 In his view, the Secretary impermissibly sought to impose new technologyupon an employer by way of the general duty clause rather than by rulemaking.\u00a0 Boththe Secretary and the Union petitioned for review, and Commissioner Cottine granted bothpetitions pursuant to section 12(j) of the Act, 29 U.S.C. ? 661(i), and Commission Rule91(a), 29 C.F.R. ? 2200.91(a).The Secretary argues on review that the judge’s rationale for vacating thecitation is inconsistent with Commission precedent and that all elements of a general dutyclause violation have been established.\u00a0 He argues first that the record supports thejudge’s finding that the hazard of exposure to unknown levels of pesticides was a\”real\” hazard.\u00a0 Second, the Secretary points out that the grain elevatorindustry’s recognition of the hazard that pesticides presented to its employees isevidenced by the presence of placards affording employers direct notice that the presenceof fumigants require that precautions are to be taken to protect employees from thechemical vapors.\u00a0 Moreover, the Secretary asserts that Con Agra’s actual knowledge ofthe hazard of exposure to toxic pesticides was shown by Con Agra’s work practice oftesting the atmosphere of boxcars which were emitting odors or were placarded.\u00a0 Next,the Secretary asserts that Con Agra’s reliance on placards and on employee detecting ofodors was inadequate in that these methods were shown to be unreliable indicators fordetecting pesticides.\u00a0 Finally, the Secretary states that the feasibility ofabatement was clearly shown in that it involved only extending the use of the present workpractice of testing some cars to testing all arriving cars.The Union has also filed a brief on review in which it argues that theSecretary carried his burden of establishing every element of a section 5(a)(1) violationand that the judge erred in granting Respondent’s motion to dismiss.On review, Con Agra characterizes the allegedly hazardous condition as itspractice of not testing all grain cars for pesticides.\u00a0 Con Agra points to evidenceindicating that only one out of six grain elevators in the area tested all incoming carsand asserts that this evidence supports its position that the industry does not recognizeits practice of failing to test to be hazardous.\u00a0 Moreover, Con Agra states that itdid not know, and had no reason to know, its actions were hazardous since no injuries hadoccurred, no one had become ill, and no damage to any employee’s internal or externalorgans had been reported.\u00a0 Finally, Con Agra points out that there are regulationslimiting employee exposure to these chemicals and that there is no evidence its employeeswere exposed to contaminants in excess of these limits set by 29 C.F.R. ? 1910.1000.\u00a0 On the day of the inspection, its employees were found to be exposed to 0.02 ppm ofmethyl bromide, well below the permissible ceiling concentration of 20 ppm set by section1910.1000, and to 0.3 ppm of carbon tetrachloride, also below the 25 ppm permissibleceiling concentration set by section 1910.1000.III In order to establish a section 5(a)(1) violation, the Secretary must prove:\u00a0 (1) theemployer failed to render its workplace free of a hazard, (2) the hazard was recognizedeither by the cited employer or generally within the employer’s industry, (3) the hazardwas causing or likely to cause death or serious physical harm, and (4) there was afeasible means by which the employer could have eliminated or materially reduced thehazard. Little Beaver Creek Ranches, Inc., 82 OSAHRC\u00a0\u00a0\u00a0 , 10 BNA OSHC 1806,1982 CCH OSHD ? 26,125 (No. 77-2096, 1982), and cases cited therein.The judge’s basis for concluding that recognition of a hazard was not shownis inconsistent with Commission precedent holding that the recognition element refers torecognition of the hazard, not the means of abatement.\u00a0 A recognized hazard is acondition or practice in the workplace that is known to be hazardous either by theindustry in general or the employer in particular. Beaird-Poulan, A Div. of EmersonElectric Co., 79 OSAHRC 21\/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ? 23,493 (No. 12600,1979); See Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied,450 U.S. 965 (1981).\u00a0 It is the dangerous potential of the condition or activitybeing scrutinized that must be known specifically by the employer or known generally inthe industry.\u00a0 See Pratt & Whitney Aircraft, United Technologies Div. v.Secretary of Labor, 649 F.2d 96, 101 (2nd Cir. 1981).\u00a0 Whether a means of abatementis appropriate is determined by proof of its feasibility.\u00a0 Peter Cooper Corp., 81OSAHRC 101\/A2, 10 BNA OSHC 1203, 1210, 1982 CCH OSHD ? 25,795 at 32,237 (No. 76-596,1981) and cases cited therein. Moreover, the question is whether a precaution isrecognized by safety and health experts as feasible, not whether the precaution’s use hasbecome customary in the industry.\u00a0 National Realty & Construction Co. v. OSHRC,489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973); Peter Cooper Corp., supra.\u00a0 Compliancewith the Act may require methods of protection of a higher standard than industrypractice.\u00a0 Beaird-Poulan, A Div. of Emerson Electric Co., 7 BNA OSHC 1225, at 1229,1979 CCH OSHD at p. 28,459.\u00a0 The judge also erred in characterizing the means ofdetecting the presence of pesticides as new technology.\u00a0 The Secretary does not seekto require Con Agra to implement any particular testing device, but to use any reliablemethod of detecting the presence of toxic pesticides.\u00a0 The record establishes thatreliable testing methods are currently available and at times are used by Con Agra.\u00a0 This case does not involve the issue of what technology to use, but when to useexisting detection devices.Judge Wienman found that employees frequently entered untested boxcars andsniffed grain samples, thereby risking contact with excessive amounts of \”methylbromide, carbon tetrachloride and phosphine, toxic substances known to cause cardiac,nervous system and vital organ damage.\”\u00a0 This finding is supported by the recordand establishes the existence of the hazard of employee exposure to unknown butpotentially dangerous concentrations of toxic pesticides.\u00a0 Con Agra’s recognition ofthe hazard is demonstrated by the company’s attempts to deal with the problem by testingthe car atmosphere for the presence of these chemicals whenever an odor emanated from thecar or if a placard was attached to the outside of the car. However, the evidence reveals that placards are not always present when thegrain has been fumigated.\u00a0 Moreover, a railroad car might contain fumigated grain butlack an odor despite potentially dangerous concentrations of toxic chemicals inpesticides.\u00a0 As noted previously, pesticides containing methyl bromide do not have adetectable odor and the odor thresholds for detecting carbon tetrachloride and phosphineare above permissible concentration levels as listed in 29 C.F.R. ? 1910.1000.\u00a0 Because the placard system is unreliable as an indication that the grain has beentreated with pesticides, and the pesticides have poor warning properties by odor, ConAgra’s method of detecting the presence of pesticides in the arriving grain does not freeits workplace of the cited hazard. [[6\/]] The evidence also establishes that acute exposure to these pesticides islikely to cause death or serious physical harm.\u00a0 Thomas Richard, a former professorof industrial hygiene and, at the time of the hearing, an OSHA compliance officer,indicated that methyl bromide was a highly toxic gas, and acute exposure to excessiveconcentrations could cause seizures, bronchitis, pneumonia and pulmonary edema.\u00a0 Intoxication from carbon tetrachloride could cause liver and kidney damage.\u00a0 Con Agra’s claim that no employee has yet been seriously injured is without merit.\u00a0 \”The Act does not wait for an employee to die or become injured. It authorizesthe promulgation of health and safety standards and the issuance of citations in the hopethat these will act to prevent deaths and injuries from ever occurring.\” WhirlpoolCorp. v. Marshall, 445 U.S. 1, 13 (1980).\u00a0 See Mineral Industries & HeavyConstruction Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981).\u00a0 \”TheSecretary need not show any actual injury to prove a ? 5(a)(1) violation.\”\u00a0 Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 910 (2nd Cir. 1977).[[7\/]] Finally, the Secretary’s proposed means of abatement is to pretest theatmosphere and grain in the cars before employees are allowed to enter and sniff thegrain.\u00a0 This merely extends to all cars a practice Con Agra presently engages inwhenever a car has a placard or emits an odor.\u00a0 This testing takes a short time tocomplete and would prevent employee exposure to chemicals.\u00a0 The feasibility andlikely utility of the proposed means of abatement is therefore established. Con Agra has asserted in its brief that there is nothing in the OSHA regulations thatrequires all grain cars to be tested, and that it was aware of and in compliance withsection 1910.1000 threshold limits for air contaminants.\u00a0 We note that the purpose ofthe general duty clause is to provide protection against recognized hazards where no dutyunder a specific standard exists, and that specific, promulgated standards will preemptthe general duty clause, but only with respect to hazards, conditions or practicesexpressly covered by the specific standards.\u00a0 National Realty & Construction Co.v. OSHRC, 489 F.2d 1257, 1258 n.9 (D.C. Cir. 1973); Peter Cooper Corp., supra; TedWilkerson, Inc., 81 OSAHRC 70\/D8, 9 BNA OSHC 2012, 1981 CCH OSHD ? 25,551 (No. 13390,1981); Sun Shipbuilding and Drydock Co., 73 OSAHRC 44\/A9, 1 BNA OSHC 1381, 1973-74 CCHOSHD ? 16,725 (No. 161, 1973); Brisk Waterproofing Co., 73 OSAHRC 30\/E1, 1 BNA OSHC 1263,1973-74 CCH OSHD ? 16,345 (No. 1046, 1073).\u00a0 The failure to test in a confinedatmosphere before possible exposure of employees to toxic substances is a violationdistinct from a continued exposure to known quantities of substances listed in section1910.1000.\u00a0 Cf. Mahone Grain Corp., 81 OSAHRC 108\/B8, 10 BNA OSHC 1275, 1982 CCH OSHD? 25,836 (No. 77-3041, 1981) (failure to test for disease producing spores in grain dustbefore permitting employees to enter a grain elevator exposed employees cleaning theelevator to a potentially fatal disease); Bomac Drilling Division of TRG Drilling Corp.,81 OSAHRC 45\/A2, 9 BNA OSHC 1681, 1981 CCH OSHD ? 25,363 (No. 76-450, 1981) (oil and gasdrilling industry recognizes that employees are exposed to the hazard of inhaling hydrogensulfide when its presence is only suspected during drilling operations and the failure toprovide emergency respiratory equipment constitutes a violation of section 5(a)(1)); Fry’sTank Service, Inc. 76 OSAHRC 105\/A2, 4 BNA OSHC 1515, 1976-77 CCH OSHD ? 20,999 (No.4447, 1976) (failure to test atmosphere in tank before employee entry or to providebreathing equipment and safety lines constitutes a violation of section 5(a)(1) where itwas recognized that the atmosphere in the confined space could be incapable of supportinghuman life); Edgewood Construction Co., 75 OSAHRC 28\/B5, 2 BNA OSHC 1485, 1487, 1974-75CCH OSHD ? 19,218 at p. 22,975 (No. 1264, 1975) (Cleary, Commissioner, concurring anddissenting) (where no standard required the use of equipment to detect natural gas andventilate the atmosphere breathed by employees while constructing a sewer alongside an oldgas line, the employer was properly cited under the general duty clause); ARO, Inc., 73OSAHRC 61\/B1, 1 BNA OSHC 1453, 1455, 1973-74 CCH OSHD ? 17,084 at p. 21,733 (No. 465,1973) (Van Namee, Commissioner, concurring) (failure to test a furnace for an oxygendeficient atmosphere prior to an employee’s entering the furnace to make repairs violatessection 5(a)(1)); American Smelting & Refining Co., 73 OSAHRC 37\/A2, 1 BNA OSHC 1256,1973-74 CCH OSHD ? 16,456 (No. 10, 1973), aff’d, 501 F.2d 504 (8th Cir. 1974) (serioushealth hazards which are only detectable by instrumentation are not outside the scope ofthe general duty clause). Accordingly, we conclude Judge Wienman erred in granting Con Agra’s motion todismiss at the close of the Secretary’s case.\u00a0 We vacate the judge’s decision andremand this case to the chief judge [[8\/]] for further proceedings. SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JREXECUTIVE SECRETARYDATED:\u00a0 JAN 31 1983 The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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– (1) 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\/]] The placard is required by a Department of Transportation regulationfound at 49 C.F.R. ? 173.426(b).\u00a0 It identifies toxic substances, and instructspersons not to enter until the car is free of gas.[[3\/]] The Secretary alleged in the citation that the grain and atmosphere inside everyrailroad car were not tested for pesticides such as, but not limited to, methyl bromide,carbon tetrachloride and phosphine prior to an employee’s entering the car to gather grainand conducting a sniff test during grain grading procedures.[[4\/]] 29 C.F.R. ? 1910.1000 provides:? 1910.1000 Air contaminants.An employee’s exposure to any material listed in table Z-1, Z-2, or Z-3 ofthis section shall be limited in accordance with the requirements of the followingparagraphs of this section.(a) Table Z-1:(1) Materials with names preceded by \”C\” — Ceiling Values.\u00a0 An employee’s exposure to any material in table Z-1, the name of which is precededby a \”C\” (e.g., C Boron trifluoride), shall at no time exceed the ceiling valuegiven for that material in the table.(2) Other materials — 8-hour time weighted averages.\u00a0 An employee’sexposure to any material listed in table Z-1, the name of which is not preceded by\”C\”, in any 8-hour work shift of a 40-hour work week, shall not exceed the8-hour time weighted average given for that material in the table.(b) Table Z-2:\u00a0 (1) 8-hour time weighted averages.\u00a0 An employee’sexposure to any material listed in table Z-2, in any 8-hour work shift of a 40-hour workweek, shall not exceed the 8-hour time weighted average limit given for that material inthe table. (2) Acceptable ceiling concentrations.\u00a0 An employee’s exposure to amaterial listed in table Z-2 shall not exceed at any time during an 8-hour shift theacceptable ceiling concentration limit given for the material in the table, except for atime period, and up to a concentration not exceeding the maximum duration andconcentration allowed in the column under \”acceptable maximum peak above theacceptable ceiling concentration for an 8-hour shift.\”***(e) To achieve compliance with paragraph (a) through (d) of this section,administrative or engineering controls must first be determined and implemented wheneverfeasible.\u00a0 When such controls are not feasible to achieve full compliance, protectiveequipment or any other protective measures shall be used to keep the exposure of employeesto air contaminants within the limits prescribed in this section.Table Z-1 specifies a ceiling concentration for methyl bromide of 20 ppm andan 8-hour time weighted average concentration of 0.3 ppm for phosphine.\u00a0 For carbontetrachloride, table Z-2 lists an 8-hour time weighted average concentration of 10 ppm, aceiling concentration of 25 ppm, and an acceptable maximum peak above the ceilingconcentration of 200 ppm for any 5 minutes in any 4 hours during an 8-hour shift.[[5\/]] Mr. Richard also testified that although the transportation of fumigated grain isprohibited until 48 hours after fumigation to allow for dissipation, in Wisconsin’s coldclimate 48 hours is not sufficient because pesticides will not evaporate in cold grain andcould remain for months.[[6\/]] See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974),where the court stated: Our technological age depends on instrumentation to monitor many conditionsof industrial operations and the environment.\u00a0 Where hazards are recognized but notdetectable by the senses, common sense and prudence demand that instrumentation beutilized.\u00a0 501 F.2d at 511.[[7\/]] Unlike the stipulated factual record in Shenango Co., 82 OSAHRC, 10BNA OSHC 1613, 1982 CCH OSHD ? 26,051 (No. 78-4723, 1982), in which the Commissionaffirmed as nonserious a violation of the asbestos monitoring standard, the evidentiaryrecord in this case establishes employee exposure to potentially dangerous quantities oftoxic substances as a result of the work practice involved.[[8\/]] Judge Wienman is no longer with the Commission.”