St. Regis Paper Company

Plain-English summary

St. Regis used flammable inks and solvents in printing flexible packaging at its Pennsylvania plant. The judge held that the industrial-plant flammable-liquid standard applied and affirmed a citation for transferring the liquids without safety cans or another approved method. Commissioner Cleary agreed because the rule covered flammable liquids used in manufacturing when handling those liquids was not the plant's principal business. Chairman Buckley would have vacated because ink was essential to St. Regis's printing business and therefore was not incidental under the term's ordinary meaning. The divided Commission affirmed the judge's decision but gave it only the precedential value of an unreviewed ALJ decision. Abatement was stayed for 60 days and, if an appeal was filed, until the court assumed jurisdiction.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.106(e)(1)(i)(A) and 29 C.F.R. § 1910.106(e)(2)(iv)(D)
• Outcome: Judge's affirmance left in place; abatement temporarily stayed.
• Key point: The divided Commission did not resolve how broadly the flammable-liquid rule's term incidental should be read, so the judge's result became final without Commission-precedent weight.

Full text (OSHRC public release)

Docket No. 77-1385

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 Commission under 29
U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. �� 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. � 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 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. �
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 � 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 � 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 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 � 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), 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. � 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 ( [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 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. � 1910.115.

[[2]] As established by the Act, the Commission is composed of three members.
  Section 12(a), 29 U.S.C. � 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 � 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).