“SECRETARY OF LABOR,Complainant,v.ST. REGIS PAPER COMPANY,Respondent.OSHRC Docket No. 77-1385_DECISION_Before: BUCKLEY, Chairman; and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether St. Regis violated 29 C.F.R. ?1910.106(e)(2)(iv)(_d_) by failing to use safety cans to transferflammable inks and solvents during a printing operation at its facilityin West Hazleton, Pennsylvania.[[1]] St. Regis manufactures a clearfilm from polyethylene through a process called extrusion. St. Regisalso produces plastic wrappers and bags in a process called conversion,in which film is printed, cut and shaped. The scope provision ofsection 1910.106(e) states that its requirements apply to industrialplants where \”[t]he use of flammable or combustible liquids isincidental to the principal business. . . .\” 29 C.F.R. ?1910.106(e)(1)(i)(_a_).An administrative law judge concluded that the standard was violatedbecause he found that St. Regis’s \”principal business\” was printing andthat its use of inks was \”incidental\” to that business. St. Regis andtwo amici argue that the standard does not apply because St. Regis’s useof ink was \”basic, fundamental and absolutely necessary\” to itsprincipal business of printing rather than subordinate or nonessential,the usual meaning of \”incidental.\” The Secretary argues that thestandard applies because the use of flammables was \”purely incidental\”to St. Regis’s principal business of manufacturing flexible packaging. The Secretary also asserts that the term \”incidental\” was used insection 1910.106(e) to distinguish secondary uses of flammable liquidsfrom principal uses, such as the manufacture and bulk storage offlammable liquids, which are regulated elsewhere in section 1910.106.The two participating Commission members[[2]] disagree on the properinterpretation of the term \”incidental\” and therefore are divided onwhether the judge’s decision should be affirmed or reversed. Commissioner Cleary would affirm because he finds that the standardapplies. In Commissioner Cleary’s view, \”incidental\” should not beconstrued in isolation from its surrounding provisions but in a mannerthat is consistent with all of section 1910.106. Review of the entirestandard shows that \”incidental\” in section 1910.106(e) distinguishessecondary industrial uses of flammable and combustible liquids fromprimary uses, such as those in bulk plants, service stations, processingplants, refineries, chemical plants and distilleries, which areregulated by sections 1910.106(f) through 1910.106(i). The principalbusiness of these latter facilities is the storage, dispensation,processing or production of flammable liquids. In these facilities, theuse or handling of flammable liquids _is_ the principal business.Section 1910.106(e), by contrast, regulates industrial plants where theprincipal business is not the storage, dispensation, processing orproduction of such liquids. It regulates industrial plants in which themanufacture of a product is the principal business and in whichflammable liquids are used in the production process. The flammableliquids are not the end product nor is their handling the principalbusiness of the facility. Section 1910.106(e)(2)(i) provides examplesof such activities: \”automobile assembly, construction of electronicequipment [and] furniture manufacturing. . . .\” Automobile assembly andfurniture manufacturing consume very large quantities of flammable andcombustible paints and varnishes. There, the use and handling offlammable liquids is essential to the final product but is not the\”principal business.\”[[3]] A contrary interpretation would lead to theanomaly that employers occasionally using small quantities of flammableswould be required to comply with the standard’s detailed requirements,_e.g_. sections 1910.106(e)(2)(iii) (drainage), 1910.106(e)(5) (firecontrol), and 1910.106(e)(7) (electrical wiring), while employers usinglarge quantities of flammables as an integral part of their businesswould not be required to comply with these provisions. CommissionerCleary would therefore hold that section 1910.106(e) applies toindustrial plants where flammable liquids are used in the principalbusiness of manufacturing a product. He would accordingly find that thestandard applies to St. Regis. Whether its \”principal business\” is saidto be printing or the manufacture of flexible consumer packaging, St.Regis’ use of flammable inks was incidental to it.Chairman Buckley would find that the standard has not been shown toapply and would therefore reverse the judge’s decision and vacate thecitation. Inasmuch as the term \”incidental\” is not defined by thestandard, Chairman Buckley would interpret the term according to itsplain meaning. _Frank Diehl Farms v. Secretary of Labor_, 696 F.2d1325, 1331 (11th Cir. 1983). The commonly-understood definition of\”incidental\” is \”subordinate, nonessential or attendant in position orsignificance.\”[[4]] In Chairman Buckley’s view, before the standard canbe found applicable to a cited operation, it must be shown that theemployer’s use of flammables was incidental, _i.e_., subordinate ornonessential to its principal business. That the standard was intendedto apply to nonessential or subordinate use of flammables is clearlyevidenced by the language of section 1910.106(e)(2)(i) which states: \”[t]his subparagraph shall be applicable to those portions of anindustrial plant where the use and handling of flammable and combustibleliquids is _only_ _incidental_ to the principal business….\” (Emphasissupplied.) This interpretation of this standard is also consistent withthe intent of the drafter, the NFPA. The NFPA’s _Flammable andCombustible Liquids Code Handbook_ (1st ed. 1981), interprets the 1981NFPA Code, which, for the purpose of the present discussion, isessentially unchanged from the 1969 version adopted by OSHA. Accordingto the Handbook at p. 140, the NFPA Code provision that was the sourcefor the OSHA standard cited here \”is intended to cover liquids in theform of paint thinners, cleaning solvents, janitorial aids, etc.,\” allof which describe flammables that are subordinate, nonessential orattendant in position to the business of most companies.Chairman Buckley also would decline to interpret \”incidental\” in theall-encompassing manner suggested by the Secretary because, when sointerpreted, the standard fails to provide adequate notice of itsrequirements and must be considered vague.[[5]] The interpretationurged by the Secretary conflicts with the plain language of thestandard, the intent of the NFPA drafters, and the reasonableunderstanding of employers. Extensive evidence in this record showsthat neither St. Regis nor its industry considered the standardapplicable to the cited operations. For an employer to appreciate thestandard as the Secretary does would require him to wade through itparagraph by paragraph, examining regulations that have no applicationto his business, and conclude that \”incidental\” either has a meaningentirely different from its commonly-understood meaning, or seeminglynone at all. If the Secretary intended that section 1910.106(e)’srequirements apply to all industrial plants where the manufacture,handling and use of flammables was not the employer’s principalbusiness, the standard should have been drafted to express this intent. \”A construction of a standard that bears no reasonable relationship tothe standard’s plain words cannot be expected to guide employers intheir conduct.\” _Lisbon Contractors, Inc_., 84 OSAHRC ____, 11 BNA OSHC1971, 1974, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97, 1984).To decide whether the standard applies to the cited operation, ChairmanBuckley would first determine what St. Regis’s \”principal business\” is. The judge found that St. Regis’s \”principal business\” was printing. This finding is amply supported by the record. The evidence shows thatSt. Regis conducted two separate operations, extrusion and conversion,at its West Hazleton facility. This facility originally operated solelyas a conversion plant, printing, cutting and shaping polyethylene film. Only after 1970 did St. Regis add an extrusion operation to thisfacility to produce polyethylene film. Even with the addition of theextrusion plant, St. Regis continued to obtain a significant portion ofthe film for its conversion operations from sources outside the plant,and sold some of the film it produced to other plants. The extrusionand conversion operations were located in separate parts of thefacility. These operations were separately staffed and were considered\”separate profit centers\” by St. Regis. Chairman Buckley thereforewould agree with the judge that in the cited facility, the \”principalbusiness\” was printing. The use of ink is unquestionably essential tothe business of printing.Even if St. Regis’s principal business were more broadly characterizedas the manufacture of flexible packaging, as urged by the Secretary,Chairman Buckley would conclude that its use of flammables was not\”incidental\” to that business. Chairman Buckley notes that the judgefound that St. Regis’s product was \”not marketable without the printingof an attractive and identifiable wrapper or packet.\” Since St.Regis’s product could not be sold to its customers without beingprinted, Chairman Buckley would conclude that St. Regis’s use of ink wasan essential, major part of the business of manufacturing flexiblepackaging. Accordingly, Chairman Buckley would vacate the citationbecause the Secretary has failed to show that the standard applies tothe cited operation. _Clement_ _Food Co_., 84 OSAHRC ___, 11 BNA OSHC2120, 1984 CCH OSHD ? 26,972 (No. 80-607, 1984).Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action canbe taken by the Commission with the affirmative vote of at least twomembers. To resolve their impasse, and permit a more speedy resolutionof this long-pending case, Chairman Buckley and Commissioner Cleary haveagreed to affirm the judge’s decision but accord it the precedentialvalue of an unreviewed judge’s decision. _See_ _Life Science ProductsCo._, 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No.14910, 1977), _aff’d sub nom. Moore v. OSHRC_, 591 F.2d 991 (4th Cir.1979). Under section 10(c) of the Act, 29 U.S.C. ? 659(c), abatementis not required until the entry of a Commission final order affirming acontested citation. Inasmuch as the judge’s decision affirmed thecitation, St. Regis will now be required to abate the cited conditionand comply with other requirements in section 1910.106(e). In view ofthe impact an abatement order could have on St. Regis’s flexographicprinting operations, the Commission orders that abatement be stayeduntil the expiration of the 60 day period during which appellate reviewof this decision may be sought under section 11(a) of the Act, 29 U.S.C.? 660(a), and, if review is sought, until the assumption of jurisdictionby a court of appeals. Once the court of appeals assumes jurisdiction,any application for a further stay should be addressed to the court.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: AUG 28 1984————————————————————————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 1910.106(e)(2)(iv)(_d_) states:? 1910.106 _Flammable and combustible liquids_.* * *(e) _Industrial plants_.* * *(2) _Incidental storage or use of flammable and combustible liquids_.* * *(iv) _Handling liquids at point of final use_.* * *(_d_) Flammable or combustible liquids shall be drawn from ortransferred into vessels, containers, or portable tanks within abuilding only through a closed piping system, from safety cans, by meansof a device drawing through the top, or from a container or portabletanks by gravity through an approved self-closing valve. Transferringby means of air pressure on the container or portable tanks shall beprohibited.The standard was adopted from a 1969 code prepared by the National FireProtection Association (\”NFPA\”), NFPA No. 30-1969, Flammable andCombustible Liquids Code. _See_ 29 C.F.R. ? 1910.115.[[2]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Presently, the Commissionhas two members as a result of a vacancy.[[3]] _See_ _also_ sections 1910.106(e)(2)(ii)(_b_)(_3_) (regulatinginside storage of 660 gallons of flammables liquids),1910.106(e)(2)(ii)(_c_) (specifying the storage requirements for \”largequantities\”), and 1910.106(e)(4) (regulating unloading of tank vehiclescarrying flammables). _Cf_. sections 1910.106(e)(1)(i)(_b_) (applyingsame standards to \”unit physical operations\”) and 1910.106(e)(3)(i)(\”unit physical operations\” occur in \”plants compounding . . . solvents,cleaning fluids, [and] insecticides. . . .\”).[[4]] _Webster’s Third New International Dictionary_, 1142 (1979).[[5]] Citing several appellate and Supreme Court decisions, theSecretary asserts that his interpretation of the standard is controllingeven if there is another interpretation that is equally reasonable. TheCommission has rejected this view and held that it must exercise its ownindependent judgment to determine the correct interpretation of astandard. _United States Steel Corp._, 77 OSAHRC 64\/C8, 5 BNA OSHC1289, 1977-78 CCH OSHD ? 21,795 (Nos. 10825 & 10849, 1977). It is notbound and need not defer to the Secretary’s interpretation. _Id_. _See__Diebold, Inc. v. Marshall_, 585 F.2d 1327, 1332 (6th Cir. 1978);_Brennan v._ _OSHRC_ (_Ron M. Fiegen, Inc_.), 513 F.2d 713, 715 (8thCir. 1975). This is especially true when \”[t]he standard was not oneadopted by the Secretary after notice, hearing and evaluation ofevidence but was conceived by a nongovernmental agency as a product ofits own investigation and research.\” _Bethlehem Steel Corp. v. OSHRC_,573 F.2d 157, 160 (3d Cir. 1978).”