Summary of NADCA Government Affairs Activity – December 2011

2011 was certainly a busy time in Washington, D.C. with many challenges coming from the U.S. Environmental Protection Agency (EPA), other federal agencies and the Congress.  In addition, industry has seen an uptick in enforcement efforts at the state and federal levels related to environmental, health and safety matters.

Unfortunately, the EPA has put forth a series of new rules and regulations that come with high price tags, including the Boiler MACT regulations and Utility MACT rule.  The Utility MACT, finalized in December, is one of the most expensive regulations in EPA’s history which will likely have a draconian effect on power plants across the nation.

One of the biggest political question marks going into 2012 is the fate of the Affordable Health Care for America Act. This upcoming spring, in the midst of the campaign season, the Supreme Court is set to hear arguments about whether or not the heart of the new law, the regulation mandating that all citizens have health insurance, is constitutional.  And then two smaller issues which the court has taken up as well which have not gotten as much attention; one of which is a requirement in the law that states expand their Medicaid program for low-income Americans to help guarantee universal coverage in 2014. And then a potentially very consequential issue called severability. And what that is, essentially, if you throw the mandate out can the rest of the law survive?  In the meantime, some states are working on implementing some of the law's other provisions while other states who oppose it are adopting a wait-and-see attitude.

In January, the Supreme Court will review a case of a family’s four-year-long effort to build on land that the EPA says contains environmentally sensitive wetlands. A decision in the family’s favor could curtail the EPA’s authority and mean a fundamental change in the way the agency enforces the Clean Water Act.  EPA regulations -- and their economic effects – are expected to remain a central focus in the 2012 presidential campaign -- raising the stakes for the agency, its supporters and opponents long after the winner is known.

The House of Representatives will reconvene on January 17, followed by the Senate on January 23. Here is an overview of some of NADCA’s priority issues during the month of December:

Congress Wraps Up 2011 Business - House Republican leadership bowed to pressure from Democrats and Senate Republicans to drop their opposition to a two month short-term deal that would extend the payroll-tax cut and unemployment benefits, as well as a "doc fix" to prevent a huge financial blow to physicians who deal with Medicare.  On Friday, December 23, the House approved a temporary extension of the payroll-tax cut, alleviating fears that Congress would need to return before its holiday recess ended.  The compromise puts off a fight until February.  The plan also includes a provision on the Keystone XL oil pipeline from Canada, which gives the Obama Administration 60 days to make a decision on the project - one that has strong backing from Republicans and a number of Democrats.

When Congress returns later this month, attention will turn to the conference committee assigned to carve out a deal on the payroll and unemployment benefit packages for the remainder of 2012 between the two chambers. But the differences remain large over how to pay for the deal, with Republicans looking to areas liking freezing wages of federal workers and Democrats are still considering a tax hike on the wealthy. 

Fiscal Year 2012 Spending Bill Signed into Law - On Friday, December 16, the House easily approved a $1 trillion omnibus bill by a vote 296-121 funding most areas of the federal government through the 2012 fiscal year.  The Senate followed suit by passing the identical spending bill on Saturday, December 17, by a vote of 67-32.  Passage of the measure eliminates the risk of government shutdowns until next fall. Unfortunately, the bill did not contain language to defund or modify some of the onerous EPA rules, such as the Boiler MACT.

In addition to funding the government, the final bill contains the following key riders:

• U.S. Environmental Protection Agency (EPA) to adopt the Integrated Risk Information System (IRIS) reform recommendations made by the National Academy of Sciences (NAS) earlier this year.  IRIS Assessments are very important since they evaluate the toxicological risk posed by chemicals and substances in commerce, as well as the environment, and serve as the basis of EPA and other agencies’ regulations.  IRIS chemical substances currently under review include hexavalent chromium and nickel, among others.  This language was one of just a few environmental “riders” that were included in the final FY 2012 spending bill. 
• Block MSD Column Rule.  Prohibits the Occupational Safety and Health Administration (OSHA) from using funds to develop, implement or enforce a rule that would add a column for Musculoskeletal Disorders (MSD) to the Occupational Injury and Illness Recording and Reporting Requirements form (Log 300). 
• Union Elections. Prevent the NLRB from using appropriations funds to issue any new administrative directive or regulation that would provide employees “any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”

EPA Releases Final Rule Regulating Power Plant Emissions - The Environmental Protection Agency’s (EPA) rule to curb toxic emissions from coal-fired power plants, known as the utility MACT rule, was officially published on December 21. The rule, with an unprecedented price tag of $11 billion, was initiated after a federal court threw out standards issued by the Bush administration to limit mercury pollution.

Under the final "Mercury and Air Toxics Standards", power plants will have to install controls curbing the release of toxic materials when coal is burned to generate electricity. The EPA regulation incorporates three separate limits: one for mercury, a second for acid gases and a third for particulate matter, which is used to target emissions of metals such as chromium, selenium and cadmium.

As part of the release of the rulemaking, President Barack Obama issued a presidential memorandum directing the EPA to give power companies more time beyond the three-year deadline to install equipment or shut old plants. The EPA said in its statement that it wants to make “broadly available” a fourth year.  Industry groups, including NADCA, had urged the EPA to give power plants a fourth year to comply with the new rules.

Die casters remain concerned that the rules could cause grid reliability issues, force the closure of a number of power plants, and significantly increase electricity rates. Earlier this year, an Ohio-based power company, American Electric, said that the proposed EPA rules would force it to close parts or all of 11 power plants. Complying with the rules would cost $8 billion, most of it on cleaning up or shutting plants that lack pollution-control equipment.

Some lawmakers launched new threats to use procedural moves to stop the rule, including Sen. Jim Inhofe (R-OK).  He plans to introduce a disapproval resolution in January under the Congressional Review Act aimed at stopping EPA’s utility MACT rule. The resolution would require 30 signatures to be placed on the Senate calendar and cannot be filibustered.  A copy of the Utility MACT rule is available on the EPA website - http://www.epa.gov/mats.

Federal Court Delays EPA’s Cross-State Air Pollution Rule - On December 30, a federal appeals court ruled that the Environmental Protection Agency (EPA) must delay implementation of pending regulations aimed at limiting harmful power plant pollution that crosses state lines.

The ruling prevents the agency from implementing the Cross-State Air Pollution Rule (CSAPR) on January 1, 2012, as originally scheduled.  CSAPR is designed to diminish interstate transport of particulate matter and ozone by limiting sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from power plant smokestacks in 27 states.  A coalition of utilities and industry groups that oppose the regulations petitioned the court to halt their implementation, arguing they will harm the economy and threaten the reliability of the power grid. The decision deals a blow to environmental groups and the administration. 

EPA’s final rule would have also added Oklahoma to the CSAPR program (for its ozone-season NOx emissions only), bringing the total number of states covered by the rule to twenty-eight.  In addition, the agency amendments imposed ozone-season NOx limitations on Iowa, Michigan, Missouri, and Wisconsin – all of which were already covered by the CSAPR with respect to their annual SO2 or NOx emissions.  For each of these states, EPA established an emissions “budget” and promulgated a federal implementation plan that ensures the budget is achieved through a cap-and-trade program applicable to fossil fuel-fired power plants. 

Note that this rule is distinct from a separate package of “technical amendments” to CSAPR, which would significantly alter the emission budgets for Texas and other states; those technical amendments are still pending review at the White House Office of Management and Budget (OMB).   A summary of EPA’s CSAPR is available at http://www.epa.gov/airtransport/pdfs/SNFRFactsheet.pdf. 

In Congress, House Republicans are renewing their calls for the Senate to pass legislation blocking EPA's CSAPR after a federal court stayed the rule. But prospects for the legislation moving are limited as the Senate has already defeated one effort to block the rule and the Obama administration has vowed to veto the bill House Republicans are pushing.

New Expedited Election Rules Adopted by NLRB - With the expiration of a quorum at the National Labor Relations Board (NLRB), the Board announced in December that it has adopted final rules that will significantly expedite the processing of election petitions filed by unions. NADCA had opposed the changes that the NLRB put forth earlier this year and signed onto comments outlining these concerns with over 200 trade associations. The new rule will:

• Provide an NLRB hearing officer with the ability to limit the evidence that can be introduced at a representation case hearing.
• Provide the hearing officer with the authority to deny a party the right to file a post-hearing brief.
• Eliminate a party's right to have the NLRB review a decision by a regional director that directs an election.
• Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period.
• Eliminate a party's right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes.

Organized labor pushed for these changes because they claimed that employers have abused the current process by litigating issues merely to delay an election.  In addition to having a quicker election, the new rules will limit an employer's ability to raise issues and, as a consequence, may inhibit the ability to preserve them for judicial review. Although the implementing guidance has not been announced, the new rules give NLRB regional directors and hearing officers significant discretion in determining the issues that can be raised in pre-election hearings. They also give the Board more discretion in deciding what cases to review on appeal.

Although the new rules will not become effective until April 30, 2012, the National Chamber Litigation Center, in conjunction with the Coalition for a Democratic Workplace (NADCA is a member of this group), filed a lawsuit seeking to enjoin the implementation of the rules. With additional lawsuits potentially on the horizon, it is important for employers to begin reviewing their policies regarding resisting union organizing with the new rules in mind.

Following the release of the ruling, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, announced his intention to challenge the rule under the Congressional Review Act (CRA).  The House or Senate can introduce a joint resolution of disapproval to prevent an agency from enforcing a rule.

The House approved the Workforce Democracy and Fairness Act (H.R. 3094), by a vote of 235-188 on November 30.   The measure, supported by NADCA reverts back to the long-standing test of which employees will vote in the union election; ensures that employers have adequate time to prepare a case before a hearing can be held; and, guarantees that employees have an appropriate amount of time to decide if they want to join a union. NADCA joined over 200 associations on a letter to House lawmakers urging support of H.R. 3094.   A Senate companion bill faces stiff opposition in the Senate and will unlikely come to the floor for a vote.

NLRB Forced to Postpone January Implementation of Notice-Posting Rule - Following the oral arguments on December 19 that were heard in the National Association of Manufacturers (NAM) suit to overturn the posting rule, the National Labor Relations Board (NLRB) has agreed to postpone the effective date of its new rule requiring all employers to post notices advising employees of rights under the NLRA.  

The Board stated that it has determined that: postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.  The rule's effective date was previously postponed from November 14, 2011 to January 31, 2012.  Since that time, additional groups have filed suit seeking to invalidate the rule. 

Obama Fills Vacancies on NLRB Board Through Recess Appointments - On January 4, President Obama made three recess appointments, filling vacancies on the National Labor Relations Board (NLRB) and bypassing a likely filibuster from Senate Republicans to keep the controversial agency operating in 2012.  Without these new appointments, the Board would be unable to issue decisions since they no longer had a quorum starting January 1st.

The recess appointments will install two Democratic members, Sharon Block and Richard Griffin, and one Republican member, Terence Flynn, who currently serves as the chief counsel to the only NLRB Republican member, Brian Hayes.  Ms. Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, but prior to that appointment worked for former Senator Ted Kennedy as the Labor and Employment Counsel for the Senate HELP Committee. Mr. Griffin is currently General Counsel to the International Union of Operating Engineers. 

Senate Republicans have gone to extraordinary steps to block recess appointments of Obama nominees by forcing the Senate to have pro forma sessions. The recess appointments represent a big victory for the administration’s union allies, which had urged the president to use any means necessary to keep the NLRB functioning.

 

Die Casting Injury Rates Climb in 2010 - According to the data released from the Bureau of Labor Statistics, the injury and illness rates for the die casting industry increased in 2010, coinciding with an overall incidence rate increase in domestic manufacturing.  The recordable injury and illness cases for manufacturing as a whole increased from 4.3 in 2009 to 4.4 in 2010, a 2.3% rise.

Aluminum die casters reported injury and illness rates of 10.9 cases per 100 full-time workers in 2010 from 7.2 in 2009, a 51.4% increase.  The aluminum die casting industry also saw a rise in cases where an employee spends restricted or transferred days away from a job, from 3.4 cases per 100 workers in 2009 to 5.7 in 2010 - this represents a 67.6% increase.

Non-aluminum die casters also experienced an increase in their injury rates from 3.8 cases in 2009 to 5.2 cases in FY10, a 36.8% increase.  For cases where an employee in the non-aluminum die casting industry spends restricted or transferred days away from a job, the rates went up 50% - from 2.2 cases per 100 workers in 2009 to 3.3 in 2010. 

OSHA Unveils Top 10 Most Cited Violations for the Die Casting Industry in FY11 - OSHA recently posted the top 10 most cited violations for the die casting industry during the period of October 2010 through September 2011 (Fiscal Year 2011) for the die casting industry. 

Listed below are the top ten lists for FY 2011:

 

House Approves NADCA Supported Reg Reform Bill - During the week of December 5, the House approved the Regulations from the Executive in Need of Scrutiny (REINS) Act H.R. 10.  The bill requires Congress to take an up-or-down, stand-alone vote, and for the president to sign off on all new major rules—those with an annual economic impact of $100 million or more.  NADCA members lobbied lawmakers during the May Government Affairs Conference and urged them to pass this measure.  Unfortunately, President Obama has threatened to veto this regulatory reform bill if it made it to his desk.

Congress Fails to Act on Tax Extenders - There are roughly 50 individual and corporate tax provisions that tend to get extended on an annual basis in Congress.  As 2011 comes to a close, several key tax incentives that die casters utilize either expired or have been dramatically reduced on Dec. 31, 2011.   Included in this group are widely popular provisions such as the research and development tax credit. These expired tax breaks could be acted upon and retroactively applied when Congress returns in January 2012, though the timing of legislative action is still to be determined. [The list of tax credits and deductions set to expire were outlined in the November 2011 Government Affairs Update.]

Rule Adopted to Reduce Commercial Truck Driver Fatigue - At the end of December, the U.S. Department of Transportation announced new scheduling rules for truck drivers that put a cap on how many hours they can work per week, but not on the number of hours per day, which safety advocates had been pushing for. Under the old rules, truck drivers could work on average up to 82 hours within a seven-day period. The new Hours of Service final rule limits a driver’s work week to 70 hours. In addition, the new rules require truckers to take a break of at least 30 minutes for every eight hours they drive, but they will maintain a daily 11-hour limit on driving.

Sens. Frank Lautenberg (D-NJ) and Jay Rockefeller (D-WV) have introduced legislation to address trucker safety, the Commercial Motor Vehicle Safety Enhancement Act. The measure would require on-board recording devices to assist accident investigations. Lautenberg indicated that he supported the rules released by the DOT, but would keep pushing for his bill.

If you have any questions regarding this update, contact Stephanie Salmon ssalmon@artemisdc.com or Tim Powers tim@artemisdc.com in the NADCA Washington Office.