The opinion of the court was delivered by: SMITH, JR.
Smith, Jr., District Judge.
In implementing OSHA, the Secretary has issued voluminous regulations, found at 29 C.F.R. pts. 1900-2200 (1974). The regulations contested in the present case state:
" Personnel. The State plan shall provide assurance that the designated agency or agencies have, or will have, a sufficient number of adequately trained and qualified personnel necessary for the enforcement of the standards. For this purpose qualified personnel means persons employed on a merit basis, including all persons engaged in the development of standards and the administration of the State plan. Conformity with the Standards for a Merit System of Personnel Administration, 45 C.F.R. Part 70 . .. will be deemed to meet this requirement.
" Resources. The State plan shall contain satisfactory assurances through the use of budget, organizational description, and any other appropriate means that the State will devote adequate funds to the administration and enforcement of the program. The Assistant Secretary will make periodic evaluations of the adequacy of the State resources devoted to the plan." 29 C.F.R. §§ 1902.3(h)-(i).
Contending that the inspection process is key to the success of the OSHA program
and accordingly that sufficient personnel and funding are essential, plaintiffs claim that these regulations are arbitrary and capricious. They state that the regulations: 1) merely "parrot" the language of the statute; 2) establish no rational criteria and guidelines for evaluating the sufficiency of a State's commitment to effective inspection and enforcement; and 3) have resulted in nonuniform State plans (26 approved to date) with wide disparities in States' manpower commitments and fund allotments.
Where arbitrary and capricious administrative action is alleged, the reviewing court must determine whether there is a rational basis to support the agency's action. 5 U.S.C. § 706(2)(A); see Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284-86, 95 S. Ct. 438, 441-42, 42 L. Ed. 2d 447 (1974). The test is a narrow one, with deference given to the agency -- especially where the challenge involves a contemporaneous construction of a statute or regulation by the agency responsible for implementing a new program. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965). In the present action, the Court concludes that the Secretary has promulgated rational, ascertainable standards for personnel and funding, and therefore upholds the regulations at issue.
As noted, the requirements set out in the statute are for "qualified personnel necessary for the enforcement of [State] standards," and for "adequate funds" for State administration and enforcement. In contrast, the occupational safety and health standards established by a State must be "at least as effective . . . as [Federal OSHA] standards" for the Secretary to approve the State plan. 29 U.S.C. § 667(c)(2); cf. id. §§ 667(c) (3), (7). Plaintiffs argue from this distinction that the statutory standards for State enforcement personnel and funding require absolute sufficiency, rather than a State effort that is merely comparable to Federal inspection and expenditure levels.
However, the whole purpose behind OSHA's encouragement of State programs meeting specified criteria is to assure adequate standards, enforcement personnel, and funding that measure up to the Federal plan which would otherwise be operative. Congress clearly intended that a proposed State plan be considered as a piece in relation to the Federal program inaugurated under OSHA.
The statute's yardstick of "as effective as" Federal standards thus extends also to State personnel and funding levels. Similarly, it is only these equally effective State standards which can provide a measurement for the personnel and funding necessary for the standards' implementation and enforcement. Therefore, "qualified" and "adequate" do not have an absolute sense in State enforcement plans, but are terms relative to the Federal personnel and funding levels established under OSHA.
Having established that a State occupational safety and health plan must meet minimum Federal requirements (that is, be "at least as effective"), it is necessary to consider the administrative regulations, directives, and procedures that have given ...