Dear Mr. Lane:
Thank you for your December 12, 2010, letter to the Occupational
Safety and Health Administration (OSHA), in which you ask what it
means for a hazard to be “first discovered” and also how OSHA
calculates an employee’s working lifetime. This letter constitutes
OSHA’s interpretation only of the requirements discussed and may
not be applicable to any question not delineated within your
original correspondence.
Question 1: The May 4, 2001, interpretation letter
addressed to Congressman Joseph Pitts states that “...Congress
authorized OSHA to issue penalties, if appropriate, when hazards
are first discovered.” Please define “first discovered.”
Response: You are essentially asking for clarification on
the instance from which OSHA’s statute of limitations begins to
run. In section 9 of the 1970 Occupational Safety and Health Act
(the OSH Act), 29 U.S.C. §658, Congress authorized OSHA to issue
citations upon the violation of section 5(a)(l), 29 U.S.C.
§654(a)(1) (general duty clause), any standard, rule or order
promulgated pursuant to section 6,29 U.S.C. §655 (Occupational
Safety and Health Standards), or any regulation prescribed pursuant
to the OSH Act. Section 9 also states that “[n]o citation may be
issued... after the expiration of six months following the
occurrence of any violation.” In other words, in those instances
where OSHA will issue citations, it must generally do so within six
months from the date the violation occurred. Thus, OSHA must
generally issue citations within six months from the date OSHA
first discovers the violation during an inspection. Where the
actions or omissions of the employer concealed the existence of the
violation, however, this six-month period is tolled until such time
that OSHA learns or could have learned of the violation.
Question 2: Section 6(b)(5) of the OSH Act, 29 U.S.C.
§655(b)(5), states that OSHA, in promulgating health standards,
must “...set the standard which most adequately assures, to the
extent feasible, on the basis of the best available evidence, that
no employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard
dealt with by such standard for the period of his working life.” My
understanding is that “working life” is generally considered to be
250 days (five days per week for 50 weeks) per year for 45 years.
Please confirm.
Response: For promulgating health standards, the usual
hourly, daily, weekly, and yearly components when calculating an
employee’s “working life” are 8 hours per day, 5 days per week, 48
weeks per year for 45 years.
Since you are located in Washington State, you should also
consider contacting the Washington State Department of Labor and
Industries (Washington State L&I). Washington State operates
its own occupational safety and health program under a plan
approved and monitored by Federal OSHA. Under this plan, Washington
State L&I promulgates and enforces, under authority of State
law, occupational safety and health standards that are at least as
effective as those of Federal OSHA, and is obligated to enforce
them as effectively as Federal OSHA does. Section 18(c) of the OSH
Act, 29 U.S.C. §667(c). You may contact Washington State L&I at
the following address for more information:
- Washington State Department of Labor & Industries
Division of Occupational Safety and Health
P.O. Box 44600
Olympia, WA 98504-4600
Tel. no. 1-800-423-7233, or 1-360-902-4805;
Fax no. 360-902-5798; TDD 360-902-5797
[http://www.lni.wa.gov/Safety/default.asp]
Thank you for your interest in occupational safety and health.
We hope you find this information helpful. Please be aware that
OSHA’s enforcement guidance is subject to periodic review and
clarification, amplification, or correction. Such guidance could
also be affected by subsequent rulemaking. In the future, should
you wish to verify that the guidance provided herein remains
current, you may consult OSHA’s website at www.osha.gov. If you
have any further questions, please feel free to contact the Office
of General Industry Enforcement at (202) 693-1850.
Sincerely,
Thomas Galassi, Director
Directorate of Enforcement Programs
cc: OSHA Region X
[Corrected on 09/28/2012]