Local government workplaces still not under WVOSHA oversight

The quarter-century-old West Virginia Occupational Safety and Health program is finally funded to do unannounced safety inspections of state agencies, but it’s withdrawing 24 citations to various local government agencies it believes it doesn’t have authority over.

The withdrawn citations include one on Oct. 17 to a Putnam County Schools bus garage that noted blocked electrical panels and fire extinguishers that weren’t being inspected monthly. The St. Albans sewer plant was cited for three violations, Hurricane’s sewer plant for six, and the Nitro and Winfield sewer plants each got 11. Among them: Winfield’s employees weren’t following code when using chainsaws.

The legislation that created WVOSHA appears to exempt school districts, special districts, cities, counties and the various agencies comprising them, plus many state agencies, from WVOSHA oversight and punishments. State and municipal employee workplaces are not inspected by federal OSHA, which covers most private employees, creating a lack of external oversight.

WVOSHA was created by 1987 legislation to, the law states, “ensure that all public employees be provided with safe and healthful work environments.” However, it didn’t get adequate funding to hire a full-time inspector until fiscal year 2012-13, acting Labor commissioner John Junkins said.

WVOSHA has issued 46 citations since it hired its inspector, but this week, it sent out letters saying it was rescinding more than half because they were incorrectly issued to nonstate agencies, according to Chelsea Ruby, spokeswoman for the state Department of Commerce, which includes the Division of Labor and WVOSHA.

“What was realized is we have misinterpreted the statute,” Ruby said. “The Legislature does not give us the authority to cite subdivisions unless they opt in.”

In the 25 years since WVOSHA was created, no municipalities, counties, school boards or other nonstate agencies have volunteered to place any of their employees or workplaces under OSHA supervision, Labor officials said.

Gordon Simmons, a field organizer for the West Virginia Public Workers Union, said he wasn’t aware of the exemptions for the multitude of local government agencies, but he has become familiar with the law’s other exemptions for some state agencies since WVOSHA hired its first inspector. The law says the definition of “public employer . . . shall not include the department of corrections, the department of health and the Legislature.”

Simmons said the language for “department of health” is ambiguous, and the entire state Department of Health and Human Resources, which has nearly 6,000 workers, considers itself exempt from OSHA oversight.

“It’s the Department of Health, and they don’t have health regulations,” Simmons said. “There’s like a Kafkaesque thing to that.”

He said the exemption has blocked the union’s efforts to use the OSHA law to solve mold and other issues reportedly causing respiratory problems for workers at a DHHR office in Princeton. He said it’s also blocked solutions at the William R. Sharpe Jr. Hospital in Weston, one of two state psychiatric hospitals locked in an ongoing lawsuit over treatment of employees and patients.

The union tried to get the exemptions removed in the last legislative session, Simmons said, but someone in committee added language that would nix the exemption for the Legislature itself. He called that “the kiss of death,” and the bill failed.

Ruby said the opt-in requirement for local government agencies came to the Division of Labor’s attention when attorneys for the city of Charleston questioned if WVOSHA had the authority to cite the city for “imminent danger” to employees allegedly inadequately protected during excavations from cave-ins and atmospheres with too little oxygen or too much flammable gas.

Public Works Director Gary Taylor said OSHA had inspected a site on Eureka Road where city employees were installing stormwater line to relieve home flooding. Taylor said there was no threat from cave-ins because they were in solid rock in the middle of the road, and contested the rest of the citation.

“Our end goal is to make sure our employees go home safe,” Taylor said.

City Attorney Paul Ellis said Charleston disagreed with both the violations and thought WVOSHA didn’t have the right to cite the city, so his office contacted the Division of Labor. Ellis said WVOSHA then sent a revised citation pointing to another part of state law, and he again protested.

Junkins said the division realized after the discussion that the citations to nonstate agencies had been incorrectly issued. He said he is thankful for the city’s input, calling it a “check and balance” on WVOSHA’s authority, but that he does wish Charleston and all other nonstate agencies would opt in.

“I’m of the opinion that every subdivision out there should opt in to this program for the protection of their employees,” Junkins said. “And if they did that, I think, the Legislature would take that into consideration and give us the resources we need to enforce those regulations.”

He said four or five of the nonstate agencies wrongly cited have not cleared up their violations, but WVOSHA has no authority to do anything about it.

“That’s what it comes down to,” Junkins said. “The only thing we can do is recommend that they fix those issues, unless they opt in.”

Despite the city’s sewer plant being cited, Winfield Mayor Randy Barrett said he’s in favor of opting in, although he’ll have to take the decision to the Sanitary Board.

He said an extra set of eyes to ensure safety never hurts and that there’s “no way around” the fact that OSHA’s inspector helped the plant improve. He said the city has fixed almost all its violations.

“They were there to help, not hurt,” Barrett said.

Tom Lane, who has served on the Charleston City Council since 1987, when WVOSHA was created, said he can’t recall any discussion of whether to opt in or not. However, he said the city has had a successful safety program in conjunction with its insurance coverage for 14 or 15 years. Ellis said he thinks “local governments govern best from local people.”

Simmons said the West Virginia Public Workers Union will work to remove exemptions from OSHA oversight for all public workers, regardless of whether they work for the state or a local government.

“Public workers’ health/safety shouldn’t be like, ‘You work for the wrong governmental unit; you don’t count,’” he said. “That’s kind of insane.”

Reach Ryan Quinn at ryan.quinn@wvgazette.com, 304-348-1254 or follow @RyanEQuinn on Twitter.

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