“SECRETARY OF LABOR,Complainant,v.THE DURIRON COMPANY, INC.,Respondent.UNITED STEELWORKERS OFAMERICA, LOCAL UNION 3320,Authorized EmployeeRepresentative.OSHRC Docket No. 77- 2847DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:This case is before the Commission for review under section 12(j), 29U.S.C. ? 661(i), of the Occupational Safety and Health Act of 1970, ?651-678 (\”the Act\”). Originally, the case involved a series ofcitations, but only one issue remains to be resolved. Administrative LawJudge J. Paul Brenton vacated a citation which alleged that the extremeheat at Duriron’s iron and steel casting machines violated the generalduty clause of the Act, section 5(a)(1). [[1]] We reverse JudgeBrenton’s decision and find that conditions at the casting machinesviolated section 5(a)(1) of the Act.IDuriron operates a foundry in Dayton, Ohio which produces iron and steelcastings. One of the foundry’s operations is performed at threecentrifugal casting machines. At these machines, an operator receivesmolten material in a large ladle which is moving overhead on 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 thelarge ladle into a smaller ladle attached to the machine. One of twooperators presses a button or lever, and the smaller ladle automaticallypours into the casting machine after which the pourer moves out of thearea. A tub called a \”pig\” receives the excess material from eachoperation while the material is still hot. The material gradually coolsdown and is not usable for casting until it is reprocessed.The operation is, by all accounts, a very hot one. An OSHA complianceofficer inspected the foundry, took the temperature in the area around acentrifugal casting machine, and found the temperature was on theaverage 95(d) F. Duriron officials also took measurements around thetime 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 violatingsection 5(a)(1) of the Act. The portion of the citation which is now incontest alleges:\”The employer did not furnish his employees working in the centrifugal[sic] pipe casting department (#746) employment and a place ofemployment which was free from recognized hazards that were causing orwere likely to cause death or serious physical harm to his employees inthat heat stress measurements exceeded the natural wet bulb-globetemperature index (WBGT) for heavy work in hot environments recommendedby NIOSH, OSHA and the Threshold Limit Values for Physical Agentsadopted by the ACGIH for 1976. While employees exhibited physiologicaleffects characteristic of heat stress, the employer did not institutework practices including: (1) an acclimatization policy, (2) work-restregimens, (3) preemployment and periodic examinations to determineemployee fitness in hot work locations, (4) informing and training ofemployees in safety and health procedures with respect to hot worklocations and in recognition and treatment of heat disorders, (5)initial and periodic measurements of hot work locations to define theemployee’s heat exposure, (6) shields, covers, or personal protectiveclothing to protect employees from heat, and (7) engineering controls toreduce the heat load in hot work locations;\”Exposure to excessive heat can result in heat exhaustion and heatstroke. At high temperatures, the body circulates great amounts of bloodto the skin in an effort to eliminate heat through perspiration. As aresult, less blood is circulated to the body’s vital organs includingthe brain. Heat exhaustion can lead to dizziness, nausea, and eventualcollapse. If not treated promptly by lowering the body temperature, aperson suffering from heat exhaustion could suffer brain damage.Beyond heat exhaustion is heat stroke. The Secretary’s expert medicalwitness testified that during heat stroke the body stops sweating,making it impossible to dissipate heat. The body temperature may rise toa dangerously high level and cause death.The dangerous effects of high temperatures can be minimized in severalways. First, people working in hot environments should drink plenty ofliquids to replenish the body liquids lost through perspiration. Second,people can be acclimatized, or gradually introduced, to the hotenvironment. If a person is exposed to a hot environment forprogressively longer periods over the course of a week, the bodygradually builds a tolerance to the high temperatures.Workers assigned to the casting machine did not receive instructionsabout the possible effects of the heat nor were they acclimatized to theheat. They were exposed to the heat for about fifty minutes out of eachworking hour. Water and salt tablets were available and fans werelocated near the area to allow workers to cool off between pourings.Foremen were instructed in the problems concerning heat exhaustion infirst aid courses.An incident which highlights the problem of the extreme heat occurred atthe casting machines shortly before the inspection. On July 5, a Durironemployee, Paul McDonald, was assigned to work on a centrifugal castingmachine. Although it was his first time working in this hot a job,McDonald was given no warnings or instructions about the heat. Afterabout ninety minutes at the casting machine, McDonald began to \”blackout.\” The operator’s work station at the casting machine is very nearmolten metal and moving parts of the machine. Duririon’s job descriptionstates that the operator is exposed to hazards of 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 wasworried about myself . . . passing out, you could fall the wrong way andit would be all over with you.\” Eventually, McDonald felt so weak thathe took himself off the job and reported to the nurses office. TheDuriron nurses gave McDonald Gatorade and checked his blood pressure andtemperature.The next day, McDonald reported to the nurses station where his bloodpressure was checked. He was advised to stay as cool as possible anddrink fluids. McDonald followed these instructions. However, five to sixhours into the day, he experienced dizziness and on his way to a fan tocool off, \”passed out cold.\” McDonald was taken to the medical officewhere, once again, he was given fluids and had his blood pressure andtemperature checked. The nurses refused to allow him to work in thecasting area when he reported for work the next day.Judge Brenton vacated the 5(a)(1) citation. He reasoned that while theevidence established that heat stress was a recognized hazard andDuriron’s foundry was not free of the hazard of extreme heat, \”theevidence does show that heat stress was not recognized as a hazardcausing or likely to cause death or serious harm in hot environmentalworkplaces such as Respondent’s facility.\” Judge Brenton also statedthat an incident in which an employee would collapse and fall intomolten metal was not likely to happen because of the precautions takenby Duriron.The Secretary petitioned for review of this issue. Commissioner Cottinedirected review on the following questions:Whether the judge erred in concluding that the Secretary did notestablish 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 notrecognized in the industry as causing or likely to cause death orserious physical harm to its victims.’IIIn order to establish a section 5(a)(1) violation, the Secretary mustprove:(1) the employer failed to render its workplace free of a hazard, (2)the hazard was recognized either by the cited employer or generallywithin the employer’s industry, (3) the hazard was causing or was likelyto cause death or serious physical harm, and (4) there was a feasiblemeans by which the employer could have eliminated or materially reducedthe hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d439 (10th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489F.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 hazardsassociated with heat stress, and that finding is supported by therecord. The record amply demonstrates that excessive heat can causevarious safety and health problems. Heat exhaustion can result indizziness and fainting. Depending upon were the employee collapses hemay be harmed by the fall, and if left untreated, heat exhaustion canresult in brain damage. In extreme situations, excessive heat can resultin a fatal heat stroke.Measurements taken at different times in the casting area place thetemperature at 92(d) F. to 115(d) F. The Secretary’s expert, Dr.Dukes-Dobos, testified that fatal heat stroke can occur at temperaturesas low as 86(d) F., but most often begins to occur at over 100(d) F. Inshort, heat exhaustion and heat stroke could occur at the temperaturesfound at the casting machine area. The incident in which McDonald passedout supports this testimony.Concerning recognition of the hazard, Duriron’s own job descriptioncharacterized the casting machine job as a \”hot\” one where workers wereexposed to \”extreme heat.\” Duriron also gave its foremen a standard RedCross first aid course, which included training in problems associatedwith 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 whichhe was aware knew of the problems of heat stress and the need for takingcertain precautions.[[2]]Judge Brenton found that heat stress was not likely to cause death orserious injury in Duriron’s workplace. He reasoned that an incident inwhich an employee would suffer death or serious harm was not likely tooccur. However, the Commission has held that the term \”likely\” in thegeneral duty clause does not refer to the likelihood of an incidentoccurring but to the likelihood of serious injury in the event anincident occurs. In R.L. Sanders Roofing Co., 79 OSAHRC 61\/D7, 7 BNAOSHC 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 byinterpreting section 5(a)(1) to require that the workplace be kept freeof recognized hazards which, if an accident occurs, are likely to causedeath or physical harm regardless of whether an accident is likely tooccur.(emphasis in the original).Here, if an incident occurred it is likely that the result would bedeath or serious injury. Unrebutted expert testimony established theserious medical repercussions, including possible brain damage, becauseof heat exhaustion and heat stroke. In this case, the chances of seriousinjury or death were enhanced because of the proximity of molten metaland moving machinery to the casting machine work station. If the castingmachine operator was overcome by heat exhaustion, he might collapse intothe molten metal and moving machinery. McDonald himself testified he wasconcerned about this possibility.When employees are exposed to high temperatures for extended periods oftime, it is incumbent upon employers to take feasible steps tomaterially reduce common hazards associated with extreme heat. This isespecially true when employees are working, as in this case, aroundpotentially dangerous machinery and materials. If an employer fails toinstitute the necessary administrative changes and provide its workerswith 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 potentialdanger. Dr. Dukes- Dobos testified that there are several other feasibleprecautions which other industries have regularly taken and whichDuriron could have taken to alleviate the danger of the extreme heat,such as acclimatizing employees and giving them. specific instructionsand warnings concerning the effects of the heat. Also, after theinspection, Duriron covered the pig containing excess molten metal,which both reduced the heat radiated into the operator’s work stationand lessened the danger that an employee overcome by the heat would fallinto molten metal.[[3]]Since the Secretary has established all the elements of a section5(a)(1) violation, Judge Brenton’s decision is reversed and the citationis 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. Durironexhibited good faith by taking certain steps, albeit inadequate, toprotect employees exposed to the hazard of heat stress. However, theseverity of possible injury from an incident requires that more than anominal penalty be assessed.[[4]] SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour 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 ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.[[2]] In 1972, the National Institute for Occupational Safety and Health(\”NIOSH\”) suggested a standard for exposure to heat. Pursuant tosections 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 theNIOSH recommendation as a mandatory OSHA standard. However, theSecretary did not subsequently propose or adopt any standard governingheat stress.Duriron strenuously argues that this enforcement action is improper anda violation of due process because the Secretary is trying to enforce arecommended standard for exposure to heat under the guise of a section5(a)(1) violation.We reject this argument. The Secretary did not attempt to enforce therecommended NIOSH standard. Rather, the Secretary used the recommendedstandard as general evidence of the hazard and industry recognition ofthe hazard. This is permissible. See Cargill Inc., Nutrena FeedDivision, 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, itwould mean that any time a standard is recommended to the Secretary theSecretary is precluded from enforcing the general duty clause withrespect to the hazards encompassed in the suggested regulation. Though astandard may have been recommended, and not promulgated, this does notnecessarily mean that the Secretary concluded that a hazard did notexist, or is otherwise objective evidence that a hazard does not exist.This is particularly true in the face of testimony and evidence as inthis case that heat stroke and heat exhaustion are recognized hazards.We do not believe worker safety and health is best served by such arestricted application of the minimum protections of the general dutyclause. See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504, 514(8th Cir. 1974) (Secretary can cite employer under general duty clauseeven though a specific standard regulating the hazard has yet to becomeeffective).[[3]] The citation, quoted supra, alleged that Duriron should have alsotaken other precautions to reduce the hazard of heat stress. For thepurpose of disposing of this case, we need not decide whether theSecretary proved the feasibility and likely utility of all of thesemeans. It is sufficient to observe that the record establishes that somefeasible precautions were available to Duriron to materially reduce thehazard. See Litton Systems, Inc., Ingalls Shipbuilding Div., 81 OSAHRC101\/C12, 10 BNA OSHC 1179, 1982 CCH OSHD ? 25,817 (No. 76-900, 1981). Ifthese measures do not entirely eliminate the hazard, then Duriron mustdetermine whether additional precautions are feasible. See KellySpringfield Tire Co., 83 OSAHRC 47\/36, 10 BNA OSHC 1970, 1975 n. 5, 1982CCH 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 removethemselves from the hazardous environment before the onset of seriousinjury and on subsequent medical treatment to negate either theexistence or seriousness of a hazard. This clearly contravenes thepurpose 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. ofEmerson 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 BNAOSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), rev’d, 659 F.2d1,273 (5th Cir. 1981).”