factors to be considered in evaluating State plans' estimates of enforcement personnel, including the safety and health hazards addressed by the State plan, the number of employers and employees covered, the timetable for full State implementation, the State's geography and industrial concentration, the staff organizational structure, the particular industries targeted, and the general program goals advanced. These factors provide clear and concrete guidelines concerning sufficiency of personnel, and also point up the diverse considerations involved in fashioning and appraising occupational safety and health plans for fifty States, the District of Columbia, Puerto Rico, and four territories. While a strict ratio of inspectors to workers could have been established in the regulations, the Secretary has chosen instead to approve State plans based upon the factors noted above. The Court finds this to be a reasonable course of action.
With regard to the regulation's standards for qualifications of State inspectors, 29 C.F.R. § 1902.3(h) provides that enforcement personnel must be adequately trained and also employed on a merit-basis system. No program directives have been promulgated concerning criteria for adequate training. However, several other measures do address the issue of personnel qualifications.
First, the Federal merit system, expressly incorporated in the implementing regulation, requires the selection of employees to be through open competition, and provides for examinations consisting of work-sample and performance tests, rating of training and experience, and background and reference inquiries. 45 C.F.R. § 70.10(a). Second, State inspectors have been required to receive certain training in Federal occupational safety and health courses. Third, the administrative review procedures for State plans, which include an opportunity for public comment and a public hearing, are rigorous and exhaustive, and assure that minimum personnel qualifications will be met before approval is given to a State plan.
Fourth, there is a period of three years following initial approval during which the Secretary is to evaluate developmental plans for compliance with statutory standards and State assurances; this post-approval monitoring allows for close attention to a State's actual performance under its enforcement plan. 29 U.S.C. § 667(e) - (f). Lastly, in light of the expressed Congressional intent of encouraging States to take the primary initiative in occupational safety and health matters and to conduct experimental and demonstrative projects, it seems improper to bind States with uniform Federal employment regulations.
For all of these reasons, the Court finds the Secretary's standards for qualified personnel to be rational and sufficiently definite.
The final area challenged by plaintiffs is the lack of criteria for adequate funding of State plans. The regulation requires sufficient resources for the enforcement plan through the use of "budget, organizational description, and any other appropriate means." 29 C.F.R. § 1902.3(i). As applied, this means that a State plan must contain detailed budgets setting forth its allocation of resources for enforcement and administration.
The regulation also provides for periodic evaluations of the adequacy of resources devoted to the State plan. Together with the comprehensive review procedures and the post-approval monitoring process noted above, these periodic evaluations assure that State funding will be adequate. While there may be great disparities in State OSHA plan expenditures (ranging, by plaintiffs' calculations, from Colorado's $.72 per worker to Wyoming's $2.19 per worker), "adequate" funding can only be defined in terms of the scope of the State plan, the occupational safety and health standards promulgated, the number and salaries of inspectors, the geography and industrial concentration of the State, and the types of industries within the State. The Court concludes that the Act and the Secretary's regulation assure a rational basis for evaluating and approving State OSHA expenditures.
Accordingly, upon consideration of defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment, plaintiffs' Cross Motion for Summary Judgment, the points and authorities and supplemental memoranda submitted by the parties, oral argument having been heard, and for reasons set forth in this Memorandum, it is by the Court this 20th day of March, 1975
ORDERED that plaintiffs' Motion for Summary Judgment be, and the same hereby is, denied; and it is further
ORDERED that defendants' Motion for Summary Judgment be, and the same hereby is, granted.
John Lewis Smith, Jr. / United States District Judge