ECN Forum Forums Safety Discussion and News Occupational Safety Discussion NFPA 70E & OSHA

NFPA 70E is not incorporated by reference in OSHA 1910/1926. It is a consensus standard. In a nutshell, industry consensus standards, such as NFPA 70E, can be used by employers as guides to making the assessments and equipment selections required by the standard. Similarly, in OSHA enforcement actions, they can be used as evidence of whether the employer acted reasonably.

Let's not try to split hairs here.

The primary OSHA statute is Part 1910 of the "Code of Federal Regulations." Subpart S, Appendix A, is a list of standards theat "may be useful" in complying with the 1910 requirements.

NFPA 70-E is but on of many standards on this list.

Now, what that means to me is that if your practice is different from what 70-E calls for, you ought to be prepared to litigate for years, and convince a dozen complete strangers, that your opinion is better than what that nice "government expert" offers.

I would say that you ignore NFPA 70-E at your own peril.

As for the "consensus standard" issue, I think that particular canard was put to rest by the Veeck case. Once a standard is adopted as law, law it is ... no matter how it was written. On the "down" side, you get to obey it. On the "plus" side, the "author" can kiss his copyright priveledges good-bye.

70-E is certainly referred to in the OSHA Statute. If I were asked to pass judgement on whether this made it 'adopted by reference,' I would say "Yes." You can be sure that every standards group would argue for a more definitive means of "adoption."

John,
That case is only "law" in the three states of the 5th District, however it can be cited in any case. I think that the fact that all NFPA documents can be read online for free was a response to that case and if and when the isssue is revisted by another District, I would expect that the online availability of the NFPA documents would have some bearing o the outcome of the case.
Don

The Veeck case was appealed to the US Supreme court. After agreeing to hear the case, the Supremes let the ruling of the Appellate court stand.

While perhaps not as definitive as the Court formally saying "We rule the same way," this is certainly more definitive than had the Court declined to hear it at all.

I sure would hate to be the one to argue to a future Court that the issue was not settled in the Veeck case.

I can certainly see that the next effort by the code-writing groups will be to try to muddy the waters; that is, they will try to argue that their codes were somehow adopted "by reference" without actually becoming part of the law. They might even attempt to place language in the codes to this effect. Again, I would not want to be the one to argue that point.

The code bodies are trying to have it both ways; they want everyone to adopt their "model" codes ... yet retain control over them. That's why the Veeck decision is so critical.

Likewise, there have been several instances of such organisations being manipulated for the commercial advantage of one of their members. At least two of these cases have been addressed by the US Supreme Court .... to the distress of the code groups!

With all these problems, the simple fact remains that the OSHA statute does mention 70E by name, if only as a resource to be consulted. One must consider this when one chooses to deviate from 70E.

John,
The Supreme Court refused to hear that case.

Thank you, Don, I stand corrected. With all the other parties filing briefs in the case, I thought a 'writ" had been granted. I thought wrong.

OOPS.

You are correct in that the ruling is binding only in that one Federal district. I think the Solicitor Generals' brief would prevail in any other district, though. Not a challenge I'd want to make.

John,
I agree that it would make it a very difficult case to win, but the writer of the ANSI article seems to think that it will be revisted in a different district and maybe result in a conflicting opinion that would bring the Supreme Court into it.
Don