The opinion
MacKINNON, Circuit Judge,
concurring:
Congress declared the scheme of the Act to be to “[encourage] the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws . . . .” ( 84 Stat. 1591 ). The statutory alternative is federal administration. It is thus incongru *1043 ous to suggest that a state OSHA plan must have “necessary” personnel and “adequate” enforcement funds which are substantially in excess of what the alternative federal administration would afford.
Such being the intent of the Act and Congress being its author, it is proper to gauge what Congress considered to be “necessary” and “adequate” for state administration by what amounts Congress has made available for the alternative federal administration.
The present lawsuit is overly ambitious and seeks extreme relief. Its objective is to wrap up the entire nation in one ball of wax and get a nationwide decree declaring how many inspections each state shall have and what sums each state shall appropriate for administration and enforcement. Raising issues in such a broad context prevents careful consideration of the basic problems. To my mind the largest approach should be on a state-by-state basis.
The scheme of the Act requires safety and health standards for particular hazards and these, which involve industrial activity and states of varying geographical size, differ greatly throughout the nation. The establishment of “disparate” numbers of inspectors in various states is thus a necessary fact of life. For a court to impose proper generalized personnel requirements for each state in the nation is a practical impossibility. A great deal of discretion must be left to federal and state administrators. Our task in this case is rendered more onerous by the fact that appellants are basically attacking the approval by the Secretary of some 25 state plans; but the record is devoid of the relevant facts with respect to the separate states. Under such circumstances, it is my view that the proper relief would be to remand the case for a more definite statement by appellants, order the necessary discovery, and thus develop some concrete facts upon which to determine whether the action of the Secretary has, or has not, been arbitrary and capricious. But the issues on that basis would be almost unmanageable. Thus, I join in Judge Leventhal’s opinion which calls for action that is moulded in the vein in which the Secretary states he has been approaching the problems.