“Docket No. 77-1385 SECRETARY OF LABOR,Complainant, v. ST. REGIS PAPER COMPANY, Respondent.OSHRC Docket No. 77-1385DECISIONBefore:\u00a0 BUCKLEY, Chairman; and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration.\u00a0 It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 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 transfer flammable inks and solvents during a printingoperation at its facility in West Hazleton, Pennsylvania.[[1]] \u00a0 St. Regismanufactures a clear film from polyethylene through a process called extrusion.\u00a0 St.Regis also produces plastic wrappers and bags in a process called conversion, in whichfilm is printed, cut and shaped.\u00a0 The scope provision of section 1910.106(e) statesthat its requirements apply to industrial plants where \”[t]he use of flammable orcombustible liquids is incidental to the principal business. . . .\” 29 C.F.R. ?1910.106(e)(1)(i)(a).An administrative law judge concluded that the standard was violated because hefound that St. Regis’s \”principal business\” was printing and that its use ofinks was \”incidental\” to that business.\u00a0 St. Regis and two amici argue thatthe standard does not apply because St. Regis’s use of ink was \”basic, fundamentaland absolutely necessary\” to its principal business of printing rather thansubordinate or nonessential, the usual meaning of \”incidental.\”\u00a0 TheSecretary argues that the standard applies because the use of flammables was \”purelyincidental\” to St. Regis’s principal business of manufacturing flexible packaging.\u00a0 The Secretary also asserts that the term \”incidental\” was used in section1910.106(e) to distinguish secondary uses of flammable liquids from principal uses, suchas the manufacture and bulk storage of flammable liquids, which are regulated elsewhere insection 1910.106.The two participating Commission members[[2]] disagree on the properinterpretation of the term \”incidental\” and therefore are divided on whether thejudge’s decision should be affirmed or reversed.\u00a0 Commissioner Cleary would affirmbecause he finds that the standard applies.\u00a0 In Commissioner Cleary’s view,\”incidental\” should not be construed in isolation from its surroundingprovisions but in a manner that is consistent with all of section 1910.106.\u00a0 Reviewof the entire standard shows that \”incidental\” in section 1910.106(e)distinguishes secondary industrial uses of flammable and combustible liquids from primaryuses, such as those in bulk plants, service stations, processing plants, refineries,chemical plants and distilleries, which are regulated by sections 1910.106(f) through1910.106(i).\u00a0 The principal business of these latter facilities is the storage,dispensation, processing or production of flammable liquids.\u00a0 In these facilities,the use or handling of flammable liquids is the principal business.Section 1910.106(e), by contrast, regulates industrial plants where the principalbusiness is not the storage, dispensation, processing or production of such liquids.\u00a0It regulates industrial plants in which the manufacture of a product is the principalbusiness and in which flammable liquids are used in the production process. \u00a0 Theflammable liquids are not the end product nor is their handling the principal business ofthe facility.\u00a0 Section 1910.106(e)(2)(i) provides examples of such activities:\u00a0\”automobile assembly, construction of electronic equipment [and] furnituremanufacturing. . . .\” Automobile assembly and furniture manufacturing consume verylarge quantities of flammable and combustible paints and varnishes. \u00a0 There, the useand handling of flammable liquids is essential to the final product but is not the\”principal business.\”[[3]]\u00a0 A contrary interpretation would lead to theanomaly that employers occasionally using small quantities of flammables would be requiredto comply with the standard’s detailed requirements, e.g. sections1910.106(e)(2)(iii) (drainage), 1910.106(e)(5) (fire control), and 1910.106(e)(7)(electrical wiring), while employers using large quantities of flammables as an integralpart of their business would not be required to comply with these provisions. \u00a0Commissioner Cleary would therefore hold that section 1910.106(e) applies to industrialplants where flammable liquids are used in the principal business of manufacturing aproduct.\u00a0 He would accordingly find that the standard applies to St. Regis. Whetherits \”principal business\” is said to be printing or the manufacture of flexibleconsumer packaging, St. Regis’ use of flammable inks was incidental to it.Chairman Buckley would find that the standard has not been shown to apply andwould therefore reverse the judge’s decision and vacate the citation.\u00a0 Inasmuch asthe term \”incidental\” is not defined by the standard, Chairman Buckley wouldinterpret the term according to its plain meaning.\u00a0 Frank Diehl Farms v. Secretaryof Labor, 696 F.2d 1325, 1331 (11th Cir. 1983).\u00a0 The commonly-understooddefinition of \”incidental\” is \”subordinate, nonessential or attendant inposition or significance.\”[[4]]\u00a0 In Chairman Buckley’s view, before the standardcan be found applicable to a cited operation, it must be shown that the employer’s use offlammables was incidental, i.e., subordinate or nonessential to its principalbusiness.\u00a0 That the standard was intended to apply to nonessential or subordinate useof flammables is clearly evidenced by the language of section 1910.106(e)(2)(i) whichstates:\u00a0 \”[t]his subparagraph shall be applicable to those portions of anindustrial plant where the use and handling of flammable and combustible liquids is onlyincidental to the principal business….\” (Emphasis supplied.)\u00a0 Thisinterpretation of this standard is also consistent with the intent of the drafter, theNFPA.\u00a0 The NFPA’s Flammable and Combustible Liquids Code Handbook (1st ed.1981), interprets the 1981 NFPA Code, which, for the purpose of the present discussion, isessentially unchanged from the 1969 version adopted by OSHA.\u00a0 According to theHandbook at p. 140, the NFPA Code provision that was the source for the OSHA standardcited here \”is intended to cover liquids in the form of paint thinners, cleaningsolvents, janitorial aids, etc.,\” all of which describe flammables that aresubordinate, nonessential or attendant 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 so interpreted, thestandard fails to provide adequate notice of its requirements and must be consideredvague.[[5]]\u00a0 The interpretation urged by the Secretary conflicts with the plainlanguage of the standard, the intent of the NFPA drafters, and the reasonableunderstanding of employers.\u00a0 Extensive evidence in this record shows that neither St.Regis nor its industry considered the standard applicable to the cited operations. \u00a0For an employer to appreciate the standard as the Secretary does would require him to wadethrough it paragraph by paragraph, examining regulations that have no application to hisbusiness, and conclude that \”incidental\” either has a meaning entirely differentfrom its commonly-understood meaning, or seemingly none at all.\u00a0 If the Secretaryintended that section 1910.106(e)’s requirements apply to all industrial plants where themanufacture, handling and use of flammables was not the employer’s principal business, thestandard should have been drafted to express this intent.\u00a0 \”A construction of astandard that bears no reasonable relationship to the standard’s plain words cannot beexpected to guide employers in their conduct.\”\u00a0 Lisbon Contractors, Inc.,84 OSAHRC ____, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97,1984).To decide whether the standard applies to the cited operation, Chairman Buckleywould first determine what St. Regis’s \”principal business\” is. \u00a0 The judgefound that St. Regis’s \”principal business\” was printing. \u00a0 This finding isamply supported by the record.\u00a0 The evidence shows that St. Regis conducted twoseparate operations, extrusion and conversion, at its West Hazleton facility.\u00a0 Thisfacility originally operated solely as a conversion plant, printing, cutting and shapingpolyethylene film.\u00a0 Only after 1970 did St. Regis add an extrusion operation to thisfacility to produce polyethylene film.\u00a0 Even with the addition of the extrusionplant, St. Regis continued to obtain a significant portion of the film for its conversionoperations from sources outside the plant, and sold some of the film it produced to otherplants.\u00a0 The extrusion and conversion operations were located in separate parts ofthe facility. These operations were separately staffed and were considered \”separateprofit centers\” by St. Regis.\u00a0 Chairman Buckley therefore would agree with thejudge that in the cited facility, the \”principal business\” was printing.\u00a0The use of ink is unquestionably essential to the business of printing.Even if St. Regis’s principal business were more broadly characterized as themanufacture of flexible packaging, as urged by the Secretary, Chairman Buckley wouldconclude that its use of flammables was not \”incidental\” to that business.\u00a0 Chairman Buckley notes that the judge found that St. Regis’s product was \”notmarketable without the printing of an attractive and identifiable wrapper or packet.\”\u00a0 Since St. Regis’s product could not be sold to its customers without being printed,Chairman Buckley would conclude that St. Regis’s use of ink was an essential, major partof the business of manufacturing flexible packaging.\u00a0 Accordingly, Chairman Buckleywould vacate the citation because the Secretary has failed to show that the standardapplies to the cited operation.\u00a0 Clement Food Co., 84 OSAHRC ___, 11BNA OSHC 2120, 1984 CCH OSHD ? 26,972 (No. 80-607, 1984).Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members.\u00a0 To resolve theirimpasse, and permit a more speedy resolution of this long-pending case, Chairman Buckleyand Commissioner Cleary have agreed to affirm the judge’s decision but accord it theprecedential value of an unreviewed judge’s decision.\u00a0 See Life ScienceProducts Co., 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). \u00a0Under section 10(c) of the Act, 29 U.S.C. ? 659(c), abatement is not required until theentry of a Commission final order affirming a contested citation.\u00a0 Inasmuch as thejudge’s decision affirmed the citation, St. Regis will now be required to abate the citedcondition and comply with other requirements in section 1910.106(e).\u00a0 In view of theimpact an abatement order could have on St. Regis’s flexographic printing operations, theCommission orders that abatement be stayed until the expiration of the 60 day periodduring which appellate review of this decision may be sought under section 11(a) of theAct, 29 U.S.C. ? 660(a), and, if review is sought, until the assumption of jurisdictionby a court of appeals.\u00a0 Once the court of appeals assumes jurisdiction, anyapplication for a further stay should be addressed to the court.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED:\u00a0 AUG 28 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 or transferred intovessels, containers, or portable tanks within a building only through a closed pipingsystem, from safety cans, by means of a device drawing through the top, or from acontainer or portable tanks by gravity through an approved self-closing valve. \u00a0Transferring by means of air pressure on the container or portable tanks shall beprohibited.The standard was adopted from a 1969 code prepared by the National Fire ProtectionAssociation (\”NFPA\”), NFPA No. 30-1969, Flammable and Combustible LiquidsCode.\u00a0 See 29 C.F.R. ? 1910.115.[[2]] As established by the Act, the Commission is composed of three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Presently, the Commission has two membersas a result of a vacancy.[[3]] See also sections 1910.106(e)(2)(ii)(b)(3)(regulating inside storage of 660 gallons of flammables liquids), 1910.106(e)(2)(ii)(c)(specifying the storage requirements for \”large quantities\”), and 1910.106(e)(4)(regulating unloading of tank vehicles carrying flammables).\u00a0 Cf. sections1910.106(e)(1)(i)(b) (applying same standards to \”unit physicaloperations\”) 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, the Secretary assertsthat his interpretation of the standard is controlling even if there is anotherinterpretation that is equally reasonable.\u00a0 The Commission has rejected this view andheld that it must exercise its own independent judgment to determine the correctinterpretation of a standard.\u00a0 United States Steel Corp., 77 OSAHRC 64\/C8, 5BNA OSHC 1289, 1977-78 CCH OSHD ? 21,795 (Nos. 10825 & 10849, 1977).\u00a0 It is notbound and need not defer to the Secretary’s interpretation.\u00a0 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 (8th Cir. 1975).\u00a0 This is especiallytrue when \”[t]he standard was not one adopted by the Secretary after notice, hearingand evaluation of evidence but was conceived by a nongovernmental agency as a product ofits own investigation and research.\”\u00a0 Bethlehem Steel Corp. v. OSHRC, 573F.2d 157, 160 (3d Cir. 1978).”