Docket No. 77-1385

SECRETARY OF LABOR,
Complainant,

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 Commission under 29 U.S.C. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

The issue on review is whether St. Regis violated 29 C.F.R. ї 1910.106(e)(2)(iv)(d) by failing to use safety cans to transfer flammable inks and solvents during a printing operation at its facility in West Hazleton, Pennsylvania.[[1]] St. Regis manufactures a clear film from polyethylene through a process called extrusion. St. Regis also produces plastic wrappers and bags in a process called conversion, in which film is printed, cut and shaped. The scope provision of section 1910.106(e) states that its requirements apply to industrial plants where "[t]he use of flammable or combustible liquids is incidental to the principal business. . . ." 29 C.F.R. ї 1910.106(e)(1)(i)(a).

An administrative law judge concluded that the standard was violated because he found that St. Regis's "principal business" was printing and that its use of inks was "incidental" to that business. St. Regis and two amici argue that the standard does not apply because St. Regis's use of ink was "basic, fundamental and absolutely necessary" to its principal business of printing rather than subordinate or nonessential, the usual meaning of "incidental." The Secretary argues that the standard 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 in section 1910.106(e) to distinguish secondary uses of flammable liquids from principal uses, such as the manufacture and bulk storage of flammable liquids, which are regulated elsewhere in section 1910.106.

The two participating Commission members[[2]] disagree on the proper interpretation of the term "incidental" and therefore are divided on whether the judge's decision should be affirmed or reversed. Commissioner Cleary would affirm because he finds that the standard applies. In Commissioner Cleary's view, "incidental" should not be construed in isolation from its surrounding provisions but in a manner that is consistent with all of section 1910.106. Review of the entire standard shows that "incidental" in section 1910.106(e) distinguishes secondary industrial uses of flammable and combustible liquids from primary uses, such as those in bulk plants, service stations, processing plants, refineries, chemical plants and distilleries, which are regulated by sections 1910.106(f) through 1910.106(i). The principal business of these latter facilities is the storage, dispensation, processing or production of flammable liquids. 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 principal business is not the storage, dispensation, processing or production of such liquids. It regulates industrial plants in which the manufacture of a product is the principal business and in which flammable liquids are used in the production process. The flammable liquids are not the end product nor is their handling the principal business of the facility. Section 1910.106(e)(2)(i) provides examples of such activities: "automobile assembly, construction of electronic equipment [and] furniture manufacturing. . . ." Automobile assembly and furniture manufacturing consume very large quantities of flammable and combustible paints and varnishes. There, the use and handling of flammable liquids is essential to the final product but is not the "principal business."[[3]] A contrary interpretation would lead to the anomaly that employers occasionally using small quantities of flammables would be required to comply with the standard's detailed requirements, e.g. sections 1910.106(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 integral part of their business would not be required to comply with these provisions. Commissioner Cleary would therefore hold that section 1910.106(e) applies to industrial plants where flammable liquids are used in the principal business of manufacturing a product. He would accordingly find that the standard applies to St. Regis. Whether its "principal business" is said to 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 to apply and would therefore reverse the judge's decision and vacate the citation. Inasmuch as the term "incidental" is not defined by the standard, Chairman Buckley would interpret the term according to its plain meaning. Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325, 1331 (11th Cir. 1983). The commonly-understood definition of "incidental" is "subordinate, nonessential or attendant in position or significance."[[4]] In Chairman Buckley's view, before the standard can be found applicable to a cited operation, it must be shown that the employer's use of flammables was incidental, i.e., subordinate or nonessential to its principal business. That the standard was intended to apply to nonessential or subordinate use of flammables is clearly evidenced by the language of section 1910.106(e)(2)(i) which states: "[t]his subparagraph shall be applicable to those portions of an industrial plant where the use and handling of flammable and combustible liquids is only incidental to the principal business...." (Emphasis supplied.) This interpretation of this standard is also consistent with the intent of the drafter, the NFPA. 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, is essentially unchanged from the 1969 version adopted by OSHA. According to the Handbook at p. 140, the NFPA Code provision that was the source for the OSHA standard cited here "is intended to cover liquids in the form of paint thinners, cleaning solvents, janitorial aids, etc.," all of which describe flammables that are subordinate, nonessential or attendant in position to the business of most companies.

Chairman Buckley also would decline to interpret "incidental" in the all-encompassing manner suggested by the Secretary because, when so interpreted, the standard fails to provide adequate notice of its requirements and must be considered vague.[[5]] The interpretation urged by the Secretary conflicts with the plain language of the standard, the intent of the NFPA drafters, and the reasonable understanding of employers. Extensive evidence in this record shows that neither St. Regis nor its industry considered the standard applicable to the cited operations. For an employer to appreciate the standard as the Secretary does would require him to wade through it paragraph by paragraph, examining regulations that have no application to his business, and conclude that "incidental" either has a meaning entirely different from its commonly-understood meaning, or seemingly none at all. If the Secretary intended that section 1910.106(e)'s requirements apply to all industrial plants where the manufacture, handling and use of flammables was not the employer's principal business, the standard should have been drafted to express this intent. "A construction of a standard that bears no reasonable relationship to the standard's plain words cannot be expected to guide employers in their conduct." Lisbon Contractors, Inc., 84 OSAHRC ____, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD І 26,924, p. 34,500 (No. 80-97, 1984).

To decide whether the standard applies to the cited operation, Chairman Buckley 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 that St. Regis conducted two separate operations, extrusion and conversion, at its West Hazleton facility. This facility originally operated solely as a conversion plant, printing, cutting and shaping polyethylene film. Only after 1970 did St. Regis add an extrusion operation to this facility to produce polyethylene film. Even with the addition of the extrusion plant, St. Regis continued to obtain a significant portion of the film for its conversion operations from sources outside the plant, and sold some of the film it produced to other plants. The extrusion and conversion operations were located in separate parts of the facility. These operations were separately staffed and were considered "separate profit centers" by St. Regis. Chairman Buckley therefore would agree with the judge that in the cited facility, the "principal business" was printing. The use of ink is unquestionably essential to the business of printing.

Even if St. Regis's principal business were more broadly characterized as 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 judge found that St. Regis's product was "not marketable without the printing of an attractive and identifiable wrapper or packet." 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 part of the business of manufacturing flexible packaging. Accordingly, Chairman Buckley would vacate the citation because the Secretary has failed to show that the standard applies to the cited operation. Clement Food Co., 84 OSAHRC ___, 11 BNA OSHC 2120, 1984 CCH OSHD І 26,972 (No. 80-607, 1984).

Under section 12(f) of the Act, 29 U.S.C. ї 661(e), official action can be taken by the Commission with the affirmative vote of at least two members. To resolve their impasse, and permit a more speedy resolution of this long-pending case, Chairman Buckley and Commissioner Cleary have agreed to affirm the judge's decision but accord it the precedential value of an unreviewed judge's decision. See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD І 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. ї 659(c), abatement is not required until the entry of a Commission final order affirming a contested citation. Inasmuch as the judge's decision affirmed the citation, St. Regis will now be required to abate the cited condition and comply with other requirements in section 1910.106(e). In view of the impact an abatement order could have on St. Regis's flexographic printing operations, the Commission orders that abatement be stayed until the expiration of the 60 day period during which appellate review of this decision may be sought under section 11(a) of the Act, 29 U.S.C. ї 660(a), and, if review is sought, until the assumption of jurisdiction by 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 COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: AUG 28 1984

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 1910.106(e)(2)(iv)(d) states:

ї 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 into vessels, containers, or portable tanks within a building only through a closed piping system, from safety cans, by means of a device drawing through the top, or from a container or portable tanks by gravity through an approved self-closing valve. Transferring by means of air pressure on the container or portable tanks shall be prohibited.

The standard was adopted from a 1969 code prepared by the National Fire Protection Association ("NFPA"), NFPA No. 30-1969, Flammable and Combustible Liquids Code. See 29 C.F.R. ї 1910.115.

[[2]] As established by the Act, the Commission is composed of three members. Section 12(a), 29 U.S.C. ї 661(a). Presently, the Commission has two members as 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). Cf. sections 1910.106(e)(1)(i)(b) (applying same 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, the Secretary asserts that his interpretation of the standard is controlling even if there is another interpretation that is equally reasonable. The Commission has rejected this view and held that it must exercise its own independent judgment to determine the correct interpretation of a standard. United States Steel Corp., 77 OSAHRC 64/C8, 5 BNA OSHC 1289, 1977-78 CCH OSHD І 21,795 (Nos. 10825 & 10849, 1977). It is not bound 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 (8th Cir. 1975). This is especially true when "[t]he standard was not one adopted by the Secretary after notice, hearing and evaluation of evidence but was conceived by a nongovernmental agency as a product of its own investigation and research." Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 160 (3d Cir. 1978).