From: Cogliano, Gerain

Sent: Thursday, February 11, 2016 8:52 AM
To: Jones, Danielle < Danielle_Y_Jones@omb.eop.gov > Subject: Revised! EPA response to OSHA language on feasibility Attachment:

Good morning, Danielle.

We’ve revised our response (from yesterday) to OSHA’s feasibility text by moving the citations to footnotes and removed our previous recommended text of “according to OSHA.” Hope this works for folks.

Thanks.

Gerai nAttachment: OSHA feasibility_EPA response.docx

Insert for page 93 of the EO 12866 RMP draft

EPA is also proposing to require owners or operators to evaluate the feasibility of implementing any IST or ISD considered. EPA believes a feasibility analysis of any considered IST or ISD is necessary to ensure the facility owner or operator seriously considers whether IST or ISD modifications could further reduce risks and prevent accidents at the facility.

EPA is proposing to use the te rm “feasibility” to describe this analysis because , as described
above

, it is already widely used in the context of IST field

. H owever, this term has a distinct meaning under the Occupational Safety and Health Act , where the courts look to whether a safety measure is capable of being done

, . 1 see American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981); Seaworld of Florida, LLC v. Perez, 748 F.3d 1202, 1215 (D.C. Cir

. 2013)

. In the this enforcement context, this feasibility means that technical know

- how about materials and methods are is available or adaptable to specific circumstances, which when applied create s a reasonable possibility that employee exposure to occupational hazards will be reduced , and that the firm is financially abl e to implement the measure
without severe adverse economic effect. 2 OSHA CPL 02

- 00

- 159, Field Operations Manual 3

- 22 (2015);
Avco n, Inc., 23 O.S.H. Cas. (BNA) 1440 , 1454 n.24 (O.S.H.R.C. Apr. 5, 2011)

. Because of the potential for confusion, OSHA has indicated that it would be unable to adopt the term feasib i l e, ity as defined in this notice, under its PSM standard if they OSHA consider s similar revisions involving IST as defined in this proposal

. Because of the potential for confusion, EPA solicits seek s comment on whether it would be
better if EPA used another term, such as “practicability” for this analysis

.
EPA is not proposing to require sources affected by this provision to implement an evaluated IST or ISD because the decision to implement such measures must consider the numerous factors related to processes, facilities, and society at large. Improper implementation of a seemingly safer alternative may lead to undesired consequences. EPA believes that only qualified facility personnel should cho ose the best measures that can reduce the risk of an accident at the facility. This decision should be based on a careful analysis and take into account: the chemicals present and their associated hazards; the operations and process conditions involved; an d the types of equipment used that are specific to the facility’s process.

1 S s ee American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981); Seaworld of Florida, LLC v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2013)

. 2 OSHA CPL 02

- 00

- 159, Field Operations Manual 3

- 22 (2015); Avco n, Inc., 23 O.S.H. Cas. (BNA) 1440 , 1454 n.24 (O.S.H.R.C. Apr. 5, 2011)

. Commented [A1]: OSHA Insert