OSHA has worked closely with the relevant trade organizations, and its inspectors have been receiving special training in the particular hazards likely to be found in foundries. It is expected that foundries inspected under the NEP will be visited by a team of inspectors that includes at least one safety specialist and an industrial hygienist. These teams will spend considerably more time at each workplace than is usual, and will attempt to evaluate a firm's overall safety and health program, in addition to checking for violations of specific standards.120 Current plans call for gradually developing additional NEP's for other industries. In some cases, regional administrators or area directors have selected certain industries or major projects, such as construction of the Metro system in Washington, D.C., for local emphasis.121

In addition to NEP, OSHA has a four-tiered hierarchy of inspection priorities: 122

1. Employee complaints of imminent danger situations. 2. Investigations of fatalities and catastrophes.

3. Other employee complaints.

4. General schedule inspections.

As shown in table 2, OSHA's distribution of inspections has remained fairly steady since 1974, although investigations of employee complaints increased somewhat during January-April 1976. Complaint investigations are expected to become even more important since OSHA has altered its procedures and acts on virtually all employee complaints, not just on those filed formally on the appropriate OSHA form.123

Ninety percent of general schedule inspections are now supposed to be conducted on the so-called worst-first basis. Within each State industries are ranked by the average number of injuries per establishment, which is simply the industry's injury rate times the average number of employees per establishment. Thus an industry with a relatively low injury rate, but which is composed of large establishments, may be ranked ahead of an industry with a higher injury rate, but which is made up of smaller establishments. Within each industry, establishments are ranked by their expected number of injuries, which means, since industrywide average injury rates are used, that they are ranked by number of employees.124

The worst-first approach assumes that the more dangerous the workplace (in terms of expected number of accidents) the more productive (in terms of accidents avoided) an OSHA inspection is likely to prove. Obviously, factors other than an establishment's expected number of accidents might be employed to compute a productivity measure for OSHA inspections. For example, it would be helpful to have an index that indicates how much accidents are reduced when particular violations are abated. However, to identify the ap

120 W. Carroll, "The New Team Approach to Foundry Inspection," Job Safety and Health, 4 (August 1976), 12-17.

Interview with Gilbert Saulter, Regional Administrator for OSHA, Boston, Mass., and former Area Director, Washington, D.C., August 24, 1976.

Interview with Harlan Holdefer and Joe Nolan, Field Performance Evaluation Team, OSHA, Washington, D.C., August 20, 1976.

1 Interview with Saulter. See also, "Employee Complaints to Receive New Treatment." Job Safety and Health, 4 (June 1976), p. 2. As this report was going to press OSHA sources reported that in the third quarter of 1976 complaints accounted for 30.2 percent of total inspections, well above their earlier share.

124 The authors' understanding of the "worst-first" strategy is based on conversations with several OSHA officials, particularly Gilbert Saulter, and examination of materials sent to the New England regional office of OSHA.

propriate factors would require more information than is presently available. The general concept of worst-first, then, may well be a reasonable one for targeting inspections.

TABLE 2.-DISTRIBUTION OF OSHA INSPECTIONS BY TYPE, 1974-76

Source: 1974 and 1975: Job Safety and Health, May 1976, p. 3. 1976: Job Safety and Health, August 1976, p. 3.

Several objections may be made to the specific worst-first strategy currently employed. That strategy assumes that an inspector's expected productivity depends only on the expected number of accidents in the establishment inspected. Thus, it is assumed, an inspector will be just as effective if he inspects a relatively safe large workplace with 1,000 employees and an accident rate of 2 injuries per 100 man-years as he will if he inspects a much smaller, relatively more dangerous workplace with 100 employees and an accident rate of 20; both establishments on average will experience 20 injuries per year. This conclusion, however, requires two dubious assumptions. First, it must be assumed that it takes no longer to inspect the larger establishment than the smaller cne. Although there are many fixed time inputs required regardless of the size of the establishment, such as travel and report preparation, some time requirements do increase with the size of the firm. The second assumption made implicitly is that inspections will lead to the same proportionate reductions in accident rates in lowinjury-rate establishments as in high-rate establishments. Intuitively it would seem more likely that establishments with low injury rates already will have taken many of the more obvious steps to reduce accidents, and that further reductions will be far more difficult to achieve.

A firm need not actually be inspected, of course, in order to come into compliance with OSHA standards. Some employers will comply simply because it is the law. Where standards apply to equipment, firms may come into compliance when they replace obsolete equipment; although OSHA standards apply to the firms using equipment and not to those producing it, manufacturers are unlikely to offer new equipment which will be in violation.

The fines levied for violations of OSHA standards also provide a potential incentive for voluntary compliance prior to an inspection. Opposition to proposals to eliminate penalties for first-instance violators has been based on the argument that if employers knew that they could not be fined unless they failed to abate the violations cited during an inspection, few would bother to comply voluntarily. In fact, it appears that few firms do comply prior to inspections. During 1974, only 23 percent of the firms inspected were "in compliance." During 1975 and the first 4 months of 1976, the figure was still lower, 21 percent.125

125 1974-75: Job Safety and Health, 4 (May 1976), p. 3. 1976: Job Safety and Health, 4 (August 1976), p. 3.

Examination of the dollar penalties proposed by OSHA makes clear that the costs of noncompliance are extremely low. As shown in table 3, the average proposed penalty per violation has ranged from $20.60 in 1971 to $31.76 in 1976. Most firms are cited for more than one violation, but the average per citation has still been extremely low, reaching a peak of $163 in the first 4 months of 1976. The fines levied by States operating approved plans have averaged even less. 126 These small fines, coupled with the low probabilities of inspection noted earlier, give firms little incentive to comply prior to an inspection. Once a firm has been inspected and cited, however, the incentive to comply rises dramatically; the probability of reinspection is relatively high and the penalties for failing to abate violations are substantial, up to $1,000 per day.127

Source: 1971-73: President's Report on Occupational Safety and Health, annual report for 1973, p. 5. 1974-75: Job Safety and Health, 4 (May 1976), p. 3. 1976: Job Safety and Health, 4 (August 1976), p. 3.

The small penalties imposed on cited firms by OSHA partly reflect the fact that the overwhelming majority of violations are classified as "nonserious." During calendar year 1974, fully 98.5 percent of the violations were "nonserious," only 1.2 percent were rated "serious," and a minuscule 0.3 percent fell in the category "imminent danger, willful or repeated." 128 Furthermore, classification criteria have been far from uniform in the different regional offices; a study of citations issued during fiscal year 1974 found that the percentage of total violations rated as serious ranged from 0.3 percent in region V (Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin) to over 3.5 percent in region X (Alaska, Idaho, Oregon, and Washington).129 Nationally, the proportion of violations classified as serious has been rising; during the first 4 months of 1976, 2.2 percent of the violations found were labeled serious, 96.4 percent nonserious, and 1.4 percent as imminent danger, willful, or repeated.130 Dr. Corn directed a reexamination of the classification system, with the aim of increasing the proportion of serious violations, while reducing the minimum penalty which an inspector can propose for a serious violation.131 OSHA officials say that inspectors have been reluctant to classify violations. as serious in part because of the relatively high penalties associated with such citations.

128 According to data in Job Safety and Health, 3 (October 1975), p. 2, the average fine per violation in the 23 State plans in operation during January-March 1975, was $9.33.

12 OSHAct, section 17 (d).

12 Job Safety and Health, 4 (May 1976), p. 3.

129 U.S. Congress, Senate Committee on Labor and Public Welfare, Occupational Safety and Health Act Review, 1974, Hearings (93d Cong. 2d sess.). p. 993.

130 Job Safety and Health, 4 (August 1976), p. 3.

1 Interview with Corn.

State plans

The OSHAct gives States the right to recover control of occupational safety and health regulation if the Secretary of Labor determines that their plans meet certain requirements specified in the act, the most important of which is that they provide for standards which are "at least as effective" as the corresponding Federal standards.132 By the end of 1974, all but five States (Kansas, Louisiana, Nebraska, Ohio, and South Dakota) had submitted plans at one time or another.133 However, nine States which had submitted plans, including several which had secured approval and had begun operation, withdrew their plans by mid-1975.134 In January 1977, 23 States (plus the Virgin Islands) had approved plans. In many of those States, regulation of safety and health in maritime industries has remained a Federal responsibility.135 OSHA continues to monitor State plans following approval in an effort to assure that they are implemented appropriately. In some States without their own plans, OSHA has contracts that pay 50 percent of the salaries of State inspectors to provide supplementary enforcement of Federal standards.136

Organized labor has consistently opposed the return of OSH regulation to the States, arguing that the OSHAct was passed largely in response to the States' poor performance in the area. The Secretary of Labor has been attacked for failing to gain sufficient assurances that approved plans will indeed be "at least as effective" as OSHA. For example, George Meany, president of the AFL-CIO, has attacked State plans as "unsecured promissory notes of future performance." 137 Labor opposition has been a key factor in the withdrawal of several State plans.138 That opposition and, probably more importantly, the tight budget conditions in many States make it unlikely that State participation will expand significantly. The 50 percent ceiling on Federal support for the operation of State plans, as compared to the 90 percent subsidy for their development, makes an increasing number of States reluctant to take over from OSHA.

Related agencies

OSHRC-Under the OSHAct, the Secretary of Labor (in practice OSHA) may only propose penalties. Penalties proposed by OSHA only become collectable if they are upheld by the OSHRC, or if the employer makes no move to contest the citation within 15 days of receiving it, in which case the citation and the proposed penalty automatically becomes a final order of the Commission.139

The ÖSHRC consists of three commissioners appointed by the President subject to Senate approval. Cases appealed to the Commission are heard first by one of the Commission's hearing examiners. These hearings are held as close as possible to the community in which the employer is located. The examiner's decision in a case is considered

134 Ashford. Crisis, p. 227.

15 The President's Report, annual report for 1973, pp. 24-25.

138 The President's Report, annual report for 1974, p. 43.

137 Quoted in Ashford, Crisis. p. 229.

138 For a brief discussion of labor's opposition to State plans see an interview with George Tavlor, chairman of the AFL-CIO Standing Committee on Occupational Safety and Health and a member of NACOSH, "Critic and Adviser," Job Safety and Health, -4 (May 1976), pp. 33-34.

180 OSHAct, Section 10 (c).

final unless one of the three commissioners requests a review by the Commission itself.140

Employers appear to be contesting an increasing proportion of the citations issued by OSHA. In calendar year 1974, the number of cases contested was 2,348, or 4.0 percent of the citations issued in that year. The corresponding figures in 1975 were 4,056 and 6.1 percent. In the first third of 1976, the number of contested cases equaled 16.0 percent of the citations issued.141

NIOSH-NIOSH's primary task is to develop criteria documents on job safety and health hazards for OSHA to use as the bases for setting standards to protect workers. In preparing these documents, NIOSH relies primarily on reviews of existing studies. NIOSH's own research has been criticized for overemphasizing small-scale laboratory animal studies, at the expense of more relevant epidemiological studies.142 The Institute has also been criticized for the slow pace at which it issued criteria documents in its first few years (only 18 had been transmitted by July, 1974),143 but the process has been greatly accelerated since then (by the end of 1976, 65 criteria documents had been sent to OSHA).144 The slow rate at which health standards have been promulgated appears to be due more to delays within OSHA than within NIOSH.145 When interviewed in 1977, OSHA's director of health standards development said that NIOSH criteria documents were being received faster than they could be turned into standards, although the quality of the documents is "a matter of continuing concern." Criteria documents cannot be turned into a standards "simply by tearing off the cover and stapling on a new one;" OSHA must take account of both engineering and, secondarily, economic feasibility in setting standards.146 OSHA reportedly improved its relations with NIOSH under Dr. Corn.147

NACOSH-The OSHAct specifies that NACOSH be composed of 16 members-12 appointed by the Secretary of Labor and 4 by the Secretary of Health, Education, and Welfare-chosen to represent labor, business, occupational safety and health professionals, and the public.148 The Committee meets approximately 6 times a year and has a very limited budget and staff.149 Its influence on OSHA and NIOSH appears to be minimal. One observer claims that "for the most part, neither OSHA nor NIOSH takes NACOSH very seriously." 150 The situation seems to be improving, however; under Corn, NACOSH established four subgroups on budget, compliance, policy and issues, and standards which, it is hoped, will allow the committee to "cover more adequately some of the elements of the program." 151

140 OSHAct, section 12.

141 Sources: 1974-1975: Job Safety and Health, 4 (May 1976), p. 3. 1976: Job Safety and Health. 4 (Angust 1976), p. 3.

142 Ashford, Crisis. pp. 300–301.

143 U.S. Senate, OSHAct Review, 1974, p. 1056.

144 Memorandum from Bolle.

145 In a 1975 interview, then-director of OSHA's Office of Standards Development Daniel Boyd noted that "22 milestones" must be passed before a standard takes effect, "No Easy Decisions." pp. 23-24.

146 Interview with Grover Wrenn, Chief, Division of Health Standards Development, OSHA. Washington. D.C., August 20, 1976.

147 Interviews with Wrenn and other OSHA officials.

148 OSHAct. sec. 7(a).

149 Ashford, Crisis, p. 246.

150 Ibid., p. 302.

151 "Critic and Adviser," op. cit., p. 33.