WORLEY BROTHERS GRANITE CO.  

OSHRC Docket No. 8303

Occupational Safety and Health Review Commission

January 24, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Speed Worley, President, Worley Brothers Granite Co., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A March 27, 1975 decision of Judge John S. Patton is before this Commission for review pursuant to 29 U.S.C. §   661(i).   Respondent, a manufacturer of tombstones, was cited for allegedly violating 29 C.F.R. §   1910.93 n1 by failing to utilize feasible engineering controls to reduce the exposure of its employees to excessive silica dust. Judge Patton found that Respondert violated the standard with respect to its sandblasting operation, but not with respect to its shaping operation.   He therefore affirmed the citation in part, and assessed a penalty of $100.   Review was directed on whether the Judge erred in his holdings concerning both the sandblasting and shaping operations.   For the reasons which follow, we affirm the Judge's decision.

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n1 The standard provides, inter alia, that when employees are exposed to silica dust in excess of certain limits, feasible engineering or administrative controls shall be used to reduce such exposure.

  [*2]  

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Concerning the sandblasting operation, Respondent did not petition for review of the Judge's decision, nor has it filed a brief in response to the direction for review.   Complainant has filed a brief contending that the Judge properly decided the issue.   As no exception has been taken to the Judge's holding, and in the absence of a compelling public interest, we will affirm the Judge's disposition without passing upon the issue.   State, Inc., Docket No. 6740, BNA 4 OSHC 1806, CCH OSHD para. 21,209 (Oct. 21, 1976)

As to the shaping operation, the evidence presented before Judge Patton was similar to that in Republic Granite Co., Docket No. 7359, BNA 4 OSHC 1711, CCH OSHD para. 21,167 (Sept. 30, 1976).   As in Republic Granite, Judge Patton found that the use of the booth suggested by Complainant was not feasible because it would significantly detract from the quality of Respondent's product.   In Republic Granite, a divided Commission affirmed Judge Patton's decision.   This case is indistinguishable, and we therefore adopt the Judge's holding for the reasons given in Republic Granite. [*3]  

Accordingly, the Judge's decision is affirmed.  

CONCURBY: MORAN (In Part); CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with Chairman Barnako's conclusion that one reason for affirming the Judge's vacation of the portion of the citation pertaining to respondent's shaping operation is that it is required by Secretary v. Republic Granite Company, OSAHRC Docket No. 7359, September 30, 1976.   I dissent, however, from the affirmance of the part of the citation relating to respondent's sandblasting operation.

The entire citation should be vacated because the evidence establishes that the employees involved were not exposed to a hazard.   As in Republic Granite, where Chairman Barnako observed that "the health of the employees is not threatened; the record shows they were fully protected by air-line respirators," respondent's employees in this case were wearing "approved supply-air dust mask[s]." When, as here, there is no occupational hazard arising out of a cited condition, there is no violation of the Occupational Safety and Health Act of 1970.   Secretary v. Alfred S. Austin Construction Company, OSAHRC Docket [*4]   No. 4809, April 28, 1976 (dissenting opinion).   I fail to see the logic behind finding respondent in violation of the Act for failing to install an engineering control device which contributes no additional benefit to employee safety or health.   Such action does nothing to further the Act's purpose of achieving safe and healthful working conditions.   Secretary v. Turner Company, Division of Olin Corp., OSAHRC Docket No. 3635, August 24, 1976 (dissenting opinion).

Furthermore, for the reasons expressed in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of the sandblasting portion of the citation.   Since my colleagues do not address that matter, Judge Patton's decision is attached hereto as Appendix A so that the law on that issue may be known.

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree with the Chairman that with respect to the sandblasting operation, the Judge's decision should be affirmed without review.

I dissent, however, from the majority's disposition of the citation insofar as it relates to the shaping operations.

As the lead opinion states,   [*5]   Judge Patton found that the use of a shaping booth was not "feasible" because it would significantly detract from the quality of respondent's product, tombstones.   If this finding is correct, the case is not distinguishable from the Commission's divided decision in Republic Granite. But the finding is not correct.

The Secretary correctly argues in his brief that the evidence of record establishes that most of respondent's shaping work is very simple, and can be performed with a shaping booth without any difficulty at all.   To this extent, then, the shaping booths are plainly "feasible" under any reading of that term.   While the use of booths would affect respondent's products in some minor degree, and on this point the Judge's finding is correct, there is simply no evidence to support his conclusion that the merchantability of the product would be significantly affected.   To the layman, to whom the respondent sold its products, no difference in quality could be detected.   This was testified to by the compliance officer who had an opportunity to compare products shaped by companies which had used booths. In his words, "[t]hey all look the same." The plant superintendent at Star [*6]   Granite, whose duties included quality control, testified that Star had been using the booths long enough to know if their products had become less merchantable, and testified that not only had the use of booths had no adverse effect on the quality of its products but in addition that no loss in merchantability had ensued.   The most the evidence does show is that in almost all shaping operations, there would be no adverse effects, and that in a minority of cases, there would be.

The foregoing analysis suggests clearly that the majority's fact-matching with Republic Granite is not supported by the record in this case.

Finally, I ask my colleagues to re-examine Republic Granite for the reasons assigned in my dissenting opinion in that decision.   The Secretary's regulatory purpose in requiring only "feasible" controls was plainly not to exempt an employer who experiences financial difficulties, such as a loss of marketability of its products, from their general responsibility to implement available technologies in its workplace.   Any concern with the marketability of the tombstones in this case should not run to the question of respondent's basic duty to comply with the [*7]   standard.   Rather it is a relevant consideration in prescribing any appropriate abatement order.   See generally Continental Can, Inc., 4 OSHC at 1552.

Appendix A

DECISION

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereinafter called the "Act") contesting a citation for non-serious violation issued by the complainant against respondent under the authority vested in complainant by section 9(a) of the Act.   Hearing was held in Elberton, Georgia, on December 19, 1974.   Mr. Carl B. Carruth appeared as counsel for the complainant and the respondent was represented by the part-owner and president of respondent, Mr. Speed Worley and by his brother, Mr. Charles Lindy Worley.   There was no motion to intervene.

LAW AND ISSUES OF THE CASE

The citation and the complaint alleged that respondent violated standard 29 CFR 1910.93 in that respondent allowed its employees in its sandblast rooms 1 and 2 to be exposed to silica dust levels which exceeded the values in Table G-3 and that respondent failed to use feasible administrative or engineering controls to reduce the silica dust levels.   It was [*8]   admitted that the respondent's employees used a respirator, which, if properly worn, would keep said employees from breathing silica dust. The issue for decision therefore is whether feasible administrative or engineering controls exist.   The respondent maintains that use of the engineering controls suggested by the complainant would cause the product to be very inferiorally constructed.

EVIDENCE IN THE CASE

A pre-trial conference was held by the parties and a pre-trial order was entered based upon the stipulations entered into at said conference.   At said conference the respondent stipulated that 75% of respondent's sales are made to persons outside the State of Georgia and that said products are transported to points beyond the State of Georgia.   It was stipulated that the respondent makes sales to persons in 15 to 20 states.   Both parties agreed that respondent is in the business of quarrying and manufacturing monuments. The allegations of the complaint relate only to the making of the monuments and not to the quarrying.   Respondent admitted at a pre-trial conference that respondent received service of the citation on May 6, 1974.   Respondent denied in its answer that the [*9]   respondent had violated the Act.   The respondent required strict proof of the allegations of the complaint as to amount of silica dust alleged to have been present at the time of inspection. The respondent denied that a penalty in the amount of $135 should have been proposed.   Respondent denied that the abatement date of May 6, 1975, is an appropriate abatement date.   The parties admitted that there were two sandblasters in the employ of the respondent and that during rush hours three sandblasters were employed and used.   The parties stipulated that respondent's employees are represented by Stone Cutters International Union located at Elberton, Georgia.

Mr. Speed Worley testified that he is part owner and president of said business and that he has been engaged in work in the industry since 1936.   He began his own business in 1950 (TR 8, 9).   He has a quarry and also makes monuments and mausoleums.   Respondent performs sandblasting and shaping (TR 9, 10).   Sandblasting, according to Mr. Worley, is used in engraving the designs and letters on the monument. Although in its broadest sense, sandblasting was used as a ten. to describe both sandblasting and shaping, the testimony was   [*10]   that in a more particular sense, sandblasting is blowing the stone down getting ready to shape it and shaping, which is also done by sandblasting, consists of putting the lettering and other designs on the monuments. In this decision, unless specified otherwise, "sandblasting," when used, will refer to the initial blowing of the stone preparatory to shaping and "shaping" will refer to the subsequent work done in drawing the design and lettering.   Mr. Worley stated that they used a filler and a rubber stencil which was placed over the face of the monument, the particular design desired being marked thereon.   The design is cut out of the rubber stencil, and the monument is then loaded on a car and pushed into a room where sandblasting is done.   The sandblaster gets its air from the compressor and the sand from inside the room blows upon the monument. The carving of the letters and designs is done by means of the blowing of this sand. This creates a fine dust (TR 10, 11).   The sandblast hose is held and directed at the rubber stencils and the sand cuts out the area which is cut out in the stencil (TR 13, 14).   The shaping is done by using a fine nozzle with a small hose and in the   [*11]   shaping flowers, petals, oak leaves, etc. are drawn on the monument (TR 14).   Sand is used for sandblasting, according to Mr. Worley, and the dust off the sand for shaping (TR 18).   The majority of the monuments just have oak leaves or other similar designs on them, but a considerable number have the head of Christ or some other design of a person drawn on them (TR 22, 23).   The designs are used over and over again, and they have as many as a hundred designs (TR 23, 24).   Work can be done in two rooms.   If there is rush business, both rooms are used, but usually only one is used (TR 25).   Two men do the work and each can do both sandblasting and shaping (TR 24, 25, 27).   The sandblasting, which is the first operation, does not require the skill of shaping (TR 25, 26).   The two employees doing this work at the time of inspection were J. C. Bearden and James Burnett (TR 27).   Some days they would sandblast and shape two hours, sometimes a little more up to over four hours (TR 29).   Mr. Morris Lemmings, who was a compliance officer for the complainant at the time of inspection, testified on behalf of complainant.   At the time of trial he was employed by the State of Georgia as an industrial [*12]   hygienist (TR 30).   As has a bachelor's degree in chemistry (TR 31).   Mr. Lemmings inspected the respondent's plant on March 28, 1974, and took samples of the silica dust content (TR 32-37).   He found that the respondent has an exhaust fan to take the dust out of the room (TR 36).   The dust sample was taken by affixing an instrument to each of the employees to determine how much dust was reaching them (TR 36).   All of the dust that was trapped in the sampling device was respiratory dust (TR 37).   The samples were numbered and identified and then sent to Salt Lake City for testing.

Mr. Walton Neville, chemist for the complainant, who works in the Western Area Occupational Health Laboratory at Salt Lake City, testified as to the tests run (TR 115, 116) and he stated that the silica content on one sample was 43% and the silica content in the other sample was 17%.   It was described as crystalline quartz respirable silica (TR 119).   He stated that sand is mostly silica (TR 119).   He stated that the sample was very carefully guarded against contamination from any other source (TR 125, 126).   The findings were described as substantially in excess of the standard.

Mr. Lemmings testified [*13]   that the findings from the device on Mr. Bearden's lapel were approximately twice the limit and those on the other employee were a little over twice the limit of weighted average (TR 49).

Mr. Lemmings stated that two other granite companies which he had seen used a rubber booth with a glass panel and a curtain through which employees put their arms and placed the sandblast hose on the stone to do the sandblasting (TR 49).   This was used only for sandblasting at Harmony Blue Granite Company but at Star Granite Company was also used for shaping (TR 50).   He stated the employee is separated from the dust by this method.   Any air drawn from outside the booth goes into the booth. No dust is allowed to escape and the large exhaust fan supplies the ventilation (TR 50).   Samples taken showed the employees using such devices were exposed to almost no dust (TR 50, 51).   These employees were doing essentially the same work as the employees of respondent.   They were using a rubber stencil, blowing it down to engrave the letters on the stone or to make other drawings on the stone (TR 52, 53).   At Star Granite Company, they were shaping flowers, petals, and leaves just as in the usual run-of-the-mill [*14]   shaping (TR 53).   He stated that at the time of inspection respondent's employees were doing the same thing (TR 53).   Photographs of the operation of Star Granite Company were introduced in evidence (TR 54, Exs. 4 and 5).   He stated that the booth has an adjustable curtain which can move back and that the employee can move back and forth across the curtain (TR 55).   The height of the slot in relationship to the stone can be adjusted to be higher or lower (TR 56).   The stone in the booth is on a roller conveyor on tracks and can be moved further back in the booth or closer to the front of the booth (TR 57).   He did take a sample of the dust in the sandblasting at Harmony Blue Granite Company and took a dust sample at Star Granite Company (TR 57).   The companies were in compliance with the standards, and there was no exposure to silica dust (TR 58).   Photographs of the operation of Star Granite Company were also introduced as exhibits 6 and 7.   All dust that was generated was trapped inside the booth. Dust was pulled away from the stone and out the window toward the rear.   It did not cloud the glass appreciably (TR 59).   He stated the shaper appeared to have a clear picture (TR 59).   [*15]   At Star they had better ventilation (TR 60).

Mr. Lemmings stated that at the respondent's plant there was a large cloud in the whole room like a heavy fog, that there was dust everywhere (TR 59, 60).   He stated that lung ailments result from silica dust.

Mr. Joe Maxwell, plant superintendent at Star Granite Company, testified that Star Granite Company makes monuments and that in part of the operation they engage in shaping (TR 90, 91).   The shape flowers, leaves, etc.   This is done by sandblasting. They blow the initial cut as to design and also blow names, etc. in the background.   He stated that they operate through a booth such as that described above by Mr. Lemmings (TR 92).   The same kind of booth is used for shaping as for sandblasting. The booth is about 10 by 12 feet and has a conveyor in it which can be pulled back and forth (TR 93).   He stated that there is no effect upon quality of the product by performing the work in this way.   He has had the booth for four to six months, and he feels that he has had it long enough to tell if the marketability of the product is effected (TR 94, 95).   He stated he has seen no difference in marketability (TR 95).   He had had the booths [*16]   for about one month prior to inspection by the complainant (TR 95).   He stated that his employees wear a 66 respirator when blowing through the curtain. At times when all the presure hits on a round area, there will be a feedback.   When this happens, dust will come back through the curtain to the employee (TR 98, 99).   He stated that's the reason that a respirator is worn (TR 99).   Hands can be shaped on the monument through the curtain (TR 100).   He stated employees do a pretty good job through the curtain but that it is hard to do some things through the curtain (TR 100, 101).   It is better to go inside to perform some of the work (TR 101).   He stated that they must go inside the room for big work such as grave covers and real big dies. This is also necessary for dies that have round carvings at the end (TR 101, 102).   On some objects size makes it necessary to go in the room, and on some the proper finishing of the ends requires it (TR 102).   It is necessary for the nozzle to be turned in many directions (TR 100).   Large dies carved on both ends must be carved by going into the room (TR 99).   It is impossible to shape heads through the curtain (TR 100).   An employee will pull [*17]   the curtain with one hand and blow with the other (TR 103).   It is not necessary to pull the curtain if the employee goes inside (TR 103, 104).   The curtain operates up and down manually.   He stated that it is no easier to do the job inside (TR 102, 103).   Some employees would rather blow through a curtain and some would rather go in the room and blow (TR 102).   It only takes a second to lift or lower the curtain (TR 104).   There is a good bit of carving of praying hands and this requires considerable shaping (TR 106).   Employees have shaped hands through the booth (TR 111).   There is some dust in the room with the curtain although the dust is pulled out rather rapidly.   There is some back up at times (TR 107, 111, 112).

Mr. James Burnett, a sandblaster, stated that he had worked at Republic Granite Company, where they have a booth, and he saw more dust blowing behind the curtain because of a certain amount of blow back.   It is necessary for an employee to raise the curtain to see if the job is complete because it cannot be seen looking through the curtain (TR 132).   When he worked at McCallahan's he would raise the curtain and stick his hand in before the dust cleared away.   He   [*18]   was of the opinion it was safer to go in the room with the product than to use the curtain (TR 132).   He was of the opinion that a better job could be done shaping in the room (TR 134, 135).   It is possible to do as good a sandblasting job in the preliminary work through a curtain. He stated, however, an employee cannot see well and they have to raise the curtain several times to see when they are finished.   It is not necessary to get near the stone in sandblasting, but they have to see it they are deep enough and to do so they must get in the room and look at it (TR 136).   He had sandblasted through a booth but never shaped through a booth. It is necessary, according to the witness, for an employee to have many different positions to get his hand in to do the shaping and it would be difficult to do that through a curtain (TR 136).   He stated that if the fan's blowing capacity was accelerated it would draw from the nozzle, and it would not hit the stone (TR 137).   He testified that it was almost impossible to blow raised letters through a curtain and do a good job, that a man has to move the nozzle so fast to blow air down in a flat manner that it would not be possible to do the   [*19]   job (TR 140).   An employee might go two or three weeks and not have a raised letter monument and again might have several at one time.   The raised letter monuments, however, are probably considerably less than 50% of the total (TR 141, 142).

Mr. Charles Lindy Worley, brother of the president of the company, stated that he had worked at the company for a year and a half to two years, but, at the present time, he has his own business (TR 143, 145).   He does have occasion to frequently go into the respondent's place of business and therefore is familiar with it.   He is experienced at shaping (TR 146).   He stated a very simple job could be done through a curtain because there does not have to be much turning to the shaping (TR 153).   Oak leaves don't have to have much turning unless the employee is going to undercut, and there is not a great deal of undercutting done (TR 153).   He stated, however, that to shape behind the curtain would be "as awkward as could be." He testified, "I just don't see how I can get my arms up under this curtain and pull this curtain around and then shape when I've got to turn, to shape this leaf I've got to go this way and to shape this leaf right beside, I [*20]   may have to go down this way.   I just don't see how I could do it, a good job, through a curtain (TR 154)." He stated oak leaves are simple but carving roses are not (TR 162).   A few companies, according to Mr. Worley, use the curtain for sandblasting prior to shaping, but more do not (TR 165).   Some companies use automatic machines which do some work satisfactorily but ruin other work (TR 166).

Mr. Speed Worley testified that looking through a glass and working through a curtain with an employee's hands, the employee could not get to the work well enough to shape the job, that it would be affected quite a bit (TR 21).   He stated that whether the product has a flower, a head of Christ, or some other object carved upon it, if it doesn't look right, the buyer will turn it down (TR 22).   A majority are just oak leaves or flowers, but a various number of designs have the head of Christ or some other person designed upon it (TR 22, 23).   He described shaping as a very tedious job (TR 20).   He was of the opinion that a person couldn't get close enough an couldn't see well enough if the curtain was used to engage in shaping.

Mr. Lemmings testified that at the time of inspection Mr. Bearden [*21]   was wearing an approved supply-air dust mask. He stated, however, that he wore it improperly, rather loosely around the face and dust could possibly get up under the mask (TR 66).   Mr. Bearden was doing some sandblasting. He stated that no dust would get into the mask if it was worn properly (TR 69).   The other employee was wearing the mask up tight and properly (TR 69).   Mr. Lemmings could not say whether the employee wearing the mask loosely received enough dust to exceed the standard (TR 69).   Mr. Bearden was only doing sandblasting at the time (TR 73).   The type mask used was the type tested by the Bureau of Mines.   It has been found that such masks would deliver clean air.   The mask showed that it was an approved mask, and there was no need to check it (TR 79).   He stated the dust is not harmful to a man's skin.   It is only harmful if he breathes it into his lungs (TR 79).   The mask works on the same principle as the mask of a deep sea diver, and, worn properly, no dust can enter (TR 84, 85).   Mr. Charles Worley testified that in his experience in shaping he had, on a few occasions, breathed through his mouth to see if he was receiving any of the dust and never felt any grit [*22]   (TR 149).   He stated that, just like a deep sea diver's helmet, water cannot get into the type mask worn (TR 155).   He stated there is no way that dust can get through it (TR 171).

EVALUATION OF THE EVIDENCE

It is undisputed that the respirator worn by the respondent's employees, if properly worn, would effectively prevent any substantial amount of dust reaching the lungs of the respondent's employees.   There was testimony by Mr. Lemmings that one of the employees did not have his mask tightly enough around his face.   Mr. Lemmings, however, was unable to testify that under these circumstances enough dust reached the lungs of said employee to exceed the standard.

The standard, however, provides that if engineering methods are feasible, the engineering methods must be adopted, and personal wearing apparel, such as a mask, can be resorted to as a substitute only if there is no feasible method whereby the dust can be controlled by engineering methods.   The question for determination, therefore, is whether a feasible means of engineering control does exist.   It is the contention of the complainant that the use of the booth described above does constitute a feasible means of operation.   [*23]   This Judge is of the opinion that the weight of the evidence establishes that the initial sandblasting operation, as distinguished from the shaping, can be adequately performed with the booth proposed by the complainant.   It is testified that this is not extremely delicate work and can be performed adequately through a curtain. The respondent did not have the booth and curtain in any part of the sandblasting operation, and, therefore, in the opinion of this Judge, did not adopt a feasible method so far as the initial sandblasting operation is concerned.   The very effective use of respirators did prevent the employees from working under a hazardous condition.   This fact does not constitute a defense to the alleged violation of the standard insofar as the initial sandblasting is concerned, but should be taken into consideration in determining an appropriate penalty.   This Judge is of the opinion that a penalty in the amount of $100 would be proper under the circumstances.

The issue of whether a feasible engineering method exists for the part of the operation designated "shaping" presents a much more difficult question.   Mr. Maxwell, who is plant superintendent at Star Granite Company,   [*24]   which does use a booth in its shaping, testified that as to simple carvings the use of the curtain is a practical operation, and the use of it, so far as he could ascertain, did not affect the marketability of his product.   He stated that hands could be shaped through the curtain, but heads could not be, and that the curtain was not a practical way for shaping large dies carved on both sides and on ends.   He stated that in such circumstances it would be necessary to go into the room and shape.   He testified that it was necessary to go inside the room for "big work." Grave covers and very large dies were included in his definition of big work.   He stated, "on some things dies make it necessary and on some things have to go in and get your ends and stuff." Mr. Charles Worley testified that on simple carvings such as oak leaves the curtain might be used but that, on a very substantial amount of the work, attempting to work through the curtain would result in a very inferior product.   His testimony was that the booth might be used on a very simple job.   He qualified this statement, however, by testifying that to shape behind the curtain would be awkward, and he did not see how he could [*25]   get his arms up under the curtain, pull the curtain around, and then shape the necessary turning and other intricacies of the job, even in carving leaves.   The only way his testimony may be reconciled is to conclude that although it was possible to do simple carving through a curtain it would result in some reduction in quality.   Mr. Steve Worley testified that looking through a glass and working with hands under a curtain would simply not produce a good enough job to properly shape.   Mr. Burnett said that the initial sandblasting could be performed through the curtain. He stated, however, he had never done any shaping through a curtain. He said raised lettering cannot be done through a curtain nor could roses be carved. Faces could not be carved with the booth.

It would appear from the above evidence that the use of a curtain while practical for the initial sandblasting is not a feasible means of shaping the finished product.   It apparently can be done but only with the result of a loss of merchantability insofar as a substantial amount of the work is concerned.   There is a conflict of evidence as to the use of a booth for simple work but there is substantial evidence that a   [*26]   booth reduces quality of even simple carving.

In the opinion of this Judge, the complainant has not established that the proposed means of using a booth and curtain is a feasible way for the respondent to engage in its shaping operation.   The complainant has, as above stated, established that it is a feasible way of engaging in the sandblasting preliminary to shaping.

The fact that the evidence is uniform that the face mask properly worn is a complete protection would not be a defence if a feasible method of engineering control is available.   In determining feasibility, however, a very inferior product might be a necessary price to pay if the alternative is the ruined health of the employees.   The evidence establishes that such a choice is not required in this case.

Respondent contends that since the sample was taken in Elberton, Georgia, and mailed to Salt Lake City, Utah, for analysis, it is possible that the sample could have been changed or inadvertently swapped with another sample.   The evidence establishes very careful precautions to prevent such an error occurring and there is no evidence of any such error ever occurring in Salt Lake City laboratory.

In the case of Rosedale   [*27]    Coal Co. vs. U.S. Bureau of Mines, 247 F.2d 299 (4th Cir) the court said:

"It would be utterly impracticable to require, as the appellant insists, that the laboratory shall account for the chain of possession of the sample so thoroughly as to rule out every conceivable possibility that the sample was tampered with.   Neither tampering nor any motive to tamper is indicated in the evidence, and the only testimony is that of the laboratory personnel, who swore that the sample was handled, so far as anyone knows, in the customary fashion."

FINDINGS OF FACT

1.   Respondent is engaged in Elberton, Georgia, in the manufacture and wholesale sale of granite monuments.

2.   Seventy-five percent of respondent's sales are made to persons outside the state of Georgia.

3.   In both the initial sandblasting operation and the shaping operation by which carving is done on the monuments, sand is used causing silica dust far in excess of that permitted by the standard.

4.   The respondent has two employees who engage in said sandblasting and shaping.

5.   The use of a booth and curtain with the employee outside the curtain and the monument in the booth is a feasible means of engaging in the [*28]   sandblasting other than shaping.

6.   Said booth is not a feasible means of engaging in shaping because it results in a substantially inferior product.

7.   The respondent did not use such a booth for either the sandblasting or shaping.

8.   The respondent's employees wore respiratory masks which were properly approved and, if properly worn, would prevent silica dust from reaching said employee's lungs.

9.   At the time of inspection one of respondent's employees did not have his mask tightly enough secured around his face permitting some dust to reach the said employee's face.

10.   There was no evidence introduced as to whether the dust reaching said employee's face was in excess of that permitted by the standard.

CONCLUSIONS OF LAW

1.   Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Halth Act.

2.   Respondent failed to use a booth, which constituted a feasible engineering means of engaging in sandblasting other than shaping, and therefore was in violation of section 5(a)(2) of the Act and standard 29 CFR 1910.93.

3.   The respondent did not violate standard 29 CFR 1910.93 by failing to use an   [*29]   engineering method of shaping the mounments and therefore failure to use said booths in the shaping operation was not a violation of the standard.

ORDER

It is therefore ordered that:

1.   On or about March 28, 1974, respondent violated section 5(a)(2) of the Act and standard 29 CFR 1910.93 by failing to use feasible engineering controls of silica dust in its sandblasting operations other than shaping.

2.   Respondent did not violate the Act or said standard in its shaping operations.

3.   A penalty in the amount of $100 is assessed for said violation of the Act.   The abatement date of May 6, 1975, is approved.

Dated this 27th day of March, 1975.

JOHN S. PATTON, Judge, OSAHRC