When the Occupational Safety and Health Act was first passed in 1970, the Secretary of Labor was directed to, within two years, "promulgate as an occupational safety and health standard any national consensus standard, and any established federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees."1 In the event there were to be conflict among existing standards, the Secretary or was required to adopt the standard that would assure the greatest degree of safety or health protection. In adopting these standards during this initial time period, OSHA was allowed to employ informal rulemaking procedures, with the added requirement that a hearing be held if any interested person objected. Thus began the reliance of OSHA on consensus standards. Since that initial requirement to adopt existing consensus standards in order to "jump-start" the implementation of the OSH Act, safety and health professionals have had to consider the impact of these standards with regard to both regulatory issues (compliance and enforcement), and potential litigation.
Determining what constitutes a "consensus standard" for purposes of consideration by the safety and health professional can itself present an issue.2 For purposes of the initial promulgation of OSHA standards by adoption when the OSH Act was first passed into law, "national consensus standard" is defined as:
…any standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary of Labor or by the Assistant Secretary of Labor that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered, and (3) has been designated as such a standard by the Secretary or the Assistant Secretary, after consultation with other appropriate Federal agencies…3
Congress specifically recognized the American National Standards Institute (ANSI)4 and the National Fire Protection Association as national consensus standards for the purposes of the Act.5 In addition to applying this definition to the initial "adoption" requirement, whenever OSHA promulgates a regulation that differs substantially from an existing national consensus standard, it is required that OSHA publish in the Federal Register a statement of the reasons why the rule, as adopted, will better effectuate the purposes of the OSH Act than the national consensus standard.6
This emphasis on initial adoption of such national consensus standards and, upon promulgation of new standards, the reference to national consensus standards when not adopted, has led many safety and health professionals and employers (as well as their legal counsel) to erroneously limit the standards it considers to be "consensus standards." A broader view of "consensus standard" is required in the development and implementation of safety and health programs.