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« On Systems, Learning, Knowledge, and Ignorance | Main | The "Legal and Others Requirements" Puzzle »

November 17, 2005


dave iverson

Ever wonder about the use of 'arbitrary and capricious'?


Arbitrary: 1. Determined by impulse or whim. 2. Based on or subject to individual judgment or discretion. 3. Established by a court or judge rather than by a specific law or statute. 4. Not limited by law : DESPOTIC

Capricious: Characterized by or subject to whim : UNPREDICTABLE

** Seem redundant ... (Apparently there's no problem with courts or judges being arbitrary according to Webster!)**

Black's Law Dictionary:

Arbitrary and Capricious: Characterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or without determining principle.

Arbitrary: . . . done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; nonrational; not done according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic . . . without fair, solid and substantial cause . . . not governed by any fixed rules or standard . . . synonymous with bad faith or failure to exercise honest judgment . . .

Caprice: Whim, arbitrary, seemingly unfounded motivation. Disposition to change one's mind impulsively.

** Equally rendundant, or more so! **

Joe Carbone

My initial thought is that we start with current practice, including operational controls that are standard operating procedures. Some of those may be written down and some may not. I would include those that really are standard. Since EMS is about continuous environmental improvement, we should start where we currently are and look to do better.

Joe Carbone

I've heard concerns about determining significant aspects in the absence of operational controls and how this doesn't make sense to some folks. It seems to me that if the operational controls are important to reduce or eliminate significant impacts, then we should know whether or not those controls are being used all the time and if not why not and make changes. This seems to be what EMS should do. So, while in NEPA we project environmental effects with the operational controls in place to determine whether or not we may have significant effects, in EMS we are concerned about having management identify those activity/impact combinations (aspects) that could have significant effects if the operational controls are not used or are not working. Hopefully management will use the EMS to ensure significant effects don't occur.

Dave Iverson

I agree with you Joe. I now usually talk about looking at impacts that might occur if operational contols (OCs)were to fail.

It is problematic, since OCs likely would not fail entirely. But if you use impacts in the absence of OCs as a benchmark to explore OC failure, we get to where we need to be. It's a messy path, but it gets us there..

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