OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
June 30, 1994
Mr. Steve Cummings
356 East 7th Street, Apt. 2
Weston, West Virginia 26452
Dear Mr. Cummings:
This is in response to your letter of June 18 to Mr. Peter Schultze, a member of my staff in the Office of State Programs. In your letter you asked how a State can obtain Federal approval of a State occupational safety and health program.
As I explained to you in my letter of May 16, Section 18 of the Occupational Safety and Health Act of 1970 specifically encourages States to develop State safety and health plans. OSHA approves and monitors the plans, and provides up to 50 percent of the costs of operating a State plan. There are currently 23 State plans which cover private and public sector employees and two States which cover public sector employees only, with private sector employees still under Federal OSHA enforcement jurisdiction.
State plans are required to adopt "at least as effective" safety and health standards. State plans conduct enforcement inspections, cover employees of State and local governments (who are excluded from Federal OSHA coverage under the Act), and provide safety and health training and education programs.
In order to receive initial Federal approval of a developmental safety and health plan, a State must first submit an application for a plan to the U.S. Department of Labor. The State must have adequate authority under enabling legislation enacted by the State legislature and also demonstrate that within 3 years it will have adequate procedures for promulgating standards that are at least as effective as the equivalent Federal OSHA standards, procedures for enforcement and appeals of citations and penalties, public employee protection, and a sufficient number of qualified personnel for enforcement training, education and technical assistance programs.
Although Federal OSHA does not have the legal authority to investigate the working conditions of employees of State and local governments, you may want to contact the OSHA Area Office in Charleston, West Virginia, for more general information regarding occupational safety and health. The address is as follows:
Mr. Stanley Elliott
U.S. Department of Labor - OSHA
550 Eagan Street, Room 206
Charleston, West Virginia 25301
Telephone: (304) 347-5937
I hope that this information, as well as the informational materials sent to you by my previous letter, have been of some use to you.
Zoltan Bagdy, Acting Director
June 18, 1994
Mr. Peter Schultze
My name is Steve Cummings. I was given your name and address through Lois Moncrief, Acting Director, Technical Data Center.
I am interested in how to implement a federally approved State OSHA Plan Program in W.V.
I was recently made to work in an office that is immediately adjacent to an old paint shop/vehicular garage. On March 15 I became extremely ill.
I complained to my immediate supervisor from March 8 to March 14 that the fumes from gasoline (in the area), paint fumes and car exhausts were bothering me. I complained verbally (with witnesses present to so he could not deny it later), but he simply said, "I don't smell anything; do your job."
I contacted W.V. - OSHA concerning this. What I did not know was that Bob Smith is a W.V. Division of Highways employee. He is a D.O.H. employee. Bob Smith, (through W.V. - D.O.H. safety director Jim Youngblood) held an inspection for me on March 14. The person who aided in the inspection was a Consolidated Natural Gas representative. This Gas representative admitted, "Yes, fumes are present here." But, the inspection report, (written by Bob Smith), says, "No fumes were found." I confronted Mr. Smith concerning this and he said, "The door separating the shop from the office was open when we inspected, but I never saw it open, therefore I found no fumes Steve."
Mr. Smith is either a liar or extremely confused. The door is opened dozens of times per day as another of the doors into the office is occasionally locked due to conference meetings. And the personnel, from many offices, oftentimes use the "shop" door. Building and Grounds people use the door frequently.
Many people can verify that the door had to be opened several times a day and for varying lengths of time.
Through my union rep. I put a grievance against District 7 of the W.V. - D.O.H. about all this.
My emergency room doctor called the poison control center in Charleston, W.V. and they are sure it was a poison. Since I was able to sip water during the illness we are quite sure it was not food poisoning but more likely an inhaled contaminant.
From March 8 to March 14 I was steadily sicker. My head ached and I was always dizzy and tired.
On March 15 I took off sick at noon. At 7:30 I went to the emergency room. While there I sweated profusely and was extremely weak with a bad (and weird) headache. The nurses said my lips were blue and my skin white. Four hours later I looked in the mirror and spots on my lips were still blue. I was very ill.
I told the emergency room doctor about the vehicular exhaust and gasoline and paint fumes at work and he then contacted the poison control center.
The grievance about all this is 7 weeks old and will end probably in September.
My union representative told me to contact my boss and request an M.S.D.S. (Material Safety Data Sheet). I put the request in writing. I requested this sheet 4 weeks ago. As a reply to my request, 3 days later, my boss (Donald Williams) raised his voice quite loudly to me and said, "Give me no more complaints of fumes!" I had included a written complaint, with the request, because fumes still exist.
I still have not received an M.S.D.S or anything of any kind of a reply to the request either.
My doctor has waited for the M.S.D.S. for days and days. I contacted the Marshall University Health Clinic in Huntington, W.V.
The assistant director told me, "The D.O.H. has to give you an M.S.D.S.;
they have to help you." He then told me to contact the Commissioner of W.V. Labor Shelby Leary and several other officials. He was upset as to the W.V. - D.O.H. in not cooperating.
He told me he would contact the W.V. - OSHA people in Charleston, W.V. As a result of his phone call the Director of W.V. - OSHA (Mrs. Burgess) called me at work. She told me, "Their is no record of any W.V. - OSHA inspection in District 7 on March 14."
But my union rep. contacted a W.V. - OSHA inspector. The inspectors name is Leo. My union rep. said, "Leo did an inspection on March 14 about the fumes problem.
My union rep was told by Leo, "I did the inspection with Bob Smith on March 14."
But Mrs. Burgess finds no record of any inspection. I wrote W.V. - OSHA from March 16 to May 30 in trying to find out things about this inspection. I was repeatedly told, "Mrs Burgess is not available." I called and talked to Cecil Flagg (Mrs. Burgess' assistant).
Cecil Flagg was short with me on the phone and said, "Mrs. Burgess is handling your case, not me; I cannot help you." He then hung up the phone after a quick, "bye."
I have received no help from W.V. - OSHA. I was told by District 7 that, "Jim Youngblood" is in charge of W.V. - OSHA. This was untrue. He is only safety director of W.V. - D.O.H.
I now have to call back Marshall University and ask the clinic assistant director for more advice.
My union rep. mailed a union-backed written formal request for an M.S.D.S., for my behalf. I still haven't received the M.S.D.S. or any info from District 7.
The union-backed request was sent to District Engineer Marvin Murphy 10 days ago. The union mailed me a copy of the request. Mr. Murphy will not reply and my supervisor will not respond. And Mrs. Burgess is either confused or incompetent or somehow someone lost my inspection report. I can't imagine W.V. - OSHA being that incompetent.
Mrs. Burgess then told me, "We can't find it, but I will send an inspector up to the work-site and conduct another inspection.
This will prove almost useless. Because on March 15 Mr. Murphy turned the "old-paint-shop" into a "wood-working" shop with wood power tools and the whole "shooting-match". The old paint fumes and gasoline fumes (from old spills) are still present though, but not as bad.
And they put contaminated (old paint cans and the like) materials behind lock and key 50 ft from the old paint shop on March 15 too. All the contaminants were moved after the inspection took place. They were there March 14 but moved March 15. And it was made to look like a harmless wood shop. At a grievance meeting Donald Williams said, "I never received any complaints abut fumes from Steve from March 8 to March 14." He is untrue in that statement because I made sure other people were present when I said it to him.
I called W.V. - OSHA (free of charge) as it also is a state agency. And my supervisor said, "I am taking your phone out."
Since I complained of fumes I have been verbally threatened with dismissal numerous times. I have also been verbally harassed by Donald Williams as he threatens me with dismissal. He shouts at me and insults my work and says, "One of us wont be working here soon." This was clearly a threat.
My friends tell me they are keeping their ears open so they can hear such threats. Many fellow workers have heard similar verbal abuse as I leave my phone on "speaker" when he contacts me through intercom. He tells me to "pick-up". I do "pick-it-up" but then I push "intercom speaker" so other can hear his insults and raised voice.
Mr. Schultze I am very much interested in bringing about a federally approved State OSHA program here in W.V.
Whenever safety is mentioned in the D.O.H. it is followed up by intimidation and threats of dismissal.
Other workers and myself were going to contact NIOSH about terrible vehicular exhaust fumes in our work sites. We had the forms and were ready to send them in. But the others backed-down. They were afraid. District 7 somehow found out about it. District 7 has dozens of people intimidated. Others have made vehicular exhaust fumes complaints to W.V. - OSHA. And the inspections are held in summer when all the windows are open. Its a joke. The W.V. - OSHA is not or can not help W.V. workers. Politics has made our safety a joke; and the D.O.H. is using safety to "weed-out" trouble-makers.
Anyone who even mentions safety is ear marked a "trouble-maker" and is openly talked ill about by District 7 superiors. Character assassination is present here. And the D.O.H. threatens openly with dismissal.
Its to the point that workers with families are forced to breath exhaust fumes and District 7 superiors dare them to even mention it to anyone.
I am not exaggerating. I had to literally promise a person that I wouldn't send a NIOSH complaint in to Washington, D.C. She is scared to death of losing her job. District 7 has her, and dozens of others right where they want them; scared and intimidated.
I spent hundreds of dollars on blood tests concerning my March 15 illness. And I openly heard a District 7 superior joke about my illness with another District 7 superior. I was behind the corner and heard it all.
I was deathly ill, and they joked. Safety is a joke here Mr. Schultze. Please send me info on how W.V. can obtain a federally approved program. And if you have any advice you can give me (people to contact or agencies or health clinics) concerning the M.S.D.S. and my grievance and my illness and concerning any of this matter -- please send it to me.
I have been afraid of a relapse of that illness for 3 months. And District 7 refuses to do anything regarding any M.S.D.S. or any manufacturers info. With a paint manufacturers sheet I could write them for an M.S.D.S. My doctor is "stuck" without it.