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:

OSHA 

feasibility_EPA response.docx

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.

Gerain
Attachment: 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 term “feasibility” to describe this analysis because, as described 

above, it is already widely used in the context of IST field. However, 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 creates a reasonable possibility that employee exposure to 

occupational hazards will be reduced, and that the firm is financially able to implement the measure 

without severe adverse economic effect.2 OSHA CPL 02-00-159, Field Operations Manual 3-22 (2015); 

Avcon, 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 feasibile,ity as defined in this 

notice, under its PSM standard if theyOSHA considers similar revisions involving ISTas defined in this 

proposal. Because of the potential for confusion, EPA solicits seeks 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 choose 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; and the types of equipment used that are specific to the 

facility’s process.

 

1

 Ssee 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); Avcon, Inc., 23 O.S.H. Cas. (BNA) 1440, 1454 n.24 

(O.S.H.R.C. Apr. 5, 2011).

Commented [A1]: OSHA Insert