Federal Appeals Court Denies NASF and Activists’ Legal Challenges: Upholds EPA’s Chromium Electroplating Air Emissions Rule

The U.S. DC Circuit Court of Appeals recently denied NASF’s legal challenge to EPA and upheld the final federal chromium air emissions rule in its entirety.

Click here for a copy of the court’s opinion. (PDF)

NASF filed a legal challenge to the final rule claiming that EPA has misapplied the requirements of the Clean Air Act and failed to provide any credible technical support for the new standard. In issuing its decision the court relied upon the legal principle of granting EPA broad deference in the issuance of the final rule (i.e., giving EPA the benefit of the doubt on all issues) and found that EPA was not arbitrary and capricious in promulgating the final rule.

The Sierra Club had also challenged EPA’s final rule claiming that it was not stringent enough. However, the court also denied this challenge in upholding the EPA rule.

NASF will provide a more detailed summary and analysis of the court’s opinion, outlook for other related air regulatory topics, and general compliance guidance in the coming weeks. In the meantime, the industry’s focus will be on compliance with the new regulatory requirements. The new housekeeping practices, emission limits, and surface tension levels are now effective. The rule also bans the addition of PFOS-based fume suppressants in tanks subject to this rule as of September 2015.

If you have any questions or need additional information, please contact Jeff Hannapel at jhannapel@thepolicygroup.com.

Posted in Law & Regulation

Congress Targets the IRS in Spending Bill

The IRS is being targeted for a major cut when the House takes up this year’s spending bill that includes the agency’s fiscal 2016 budget. The larger appropriations package calls for a reduction of funding by over $10 billion, or by 8 percent.

A recent inspector general report highlighted that the IRS annual budget was cut by more than $1.2 billion between federal fiscal years 2010 and 2015, and that years of funding cuts were hurting the agency’s ability to collect taxes and assist taxpayers. Republicans are not going along with the recommendations to boost funding, and the proposed budget contains a $75 million increase for taxpayer services. At press time, no date was set for a vote in the House.

Posted in Law & Regulation | Tagged

Supreme Court Rules Against EPA’s Mercury Pollution Regulation

In one of many notable decisions handed down by the Supreme Court in June, in Michigan v. EPA the Court voted 5-4 against the Environmental Protection Agency’s decision to regulate mercury emissions from power plants, arguing that EPA had failed to appropriately consider costs when determining that the regulation of mercury emissions was “appropriate and necessary”.

In his opinion for the Court, Justice Antonin Scalia stated: “One would not say that it is even rational, never mind “appropriate”, to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. In addition, “cost” includes more than the expense of complying with the regulations; any disadvantage could be termed a cost. . . . No regulation is “appropriate if it does significantly more harm than good.”

In her dissent, Justice Elena Kagan agreed with the majority that costs should be considered, but argued that EPA should be permitted to consider costs when it sets the actual emissions standard rather than in its initial decision to create a regulation.

Notably, the Court’s opinions help to solidify the role of cost consideration in federal rulemakings.  In this specific case, however, it is highly likely that EPA will continue to regulate mercury emissions and in the coming months will produce cost analysis to support this decision to insulate it from a similar legal challenge in the future.

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New Overtime Rule: Department of Labor Proposes Major Changes

In a much-anticipated decision, the U.S. Department of Labor issued in July its proposed rule to revise U.S. overtime laws. The proposal is drawing wide interest and media coverage, and both business and labor are readying arguments for submittal to the Department of Labor’s Wage & Hour Division prior to the public comment period deadline. The comment deadline could also be delayed, as opposition and concerns from industry may prompt the Administration to slow down the process.

The rule, announced in response to President Obama’s directive last year to the Labor Department to make overtime law changes, would more than double the salary threshold for guaranteed overtime pay to $50,440, from the current threshold of $23,660. The proposal also calls for indexing the guaranteed overtime pay threshold to the 40th percentile of income.

But for many employers, just as important as the salary threshold is the “duties test.” Depending on how an employee’s duties are classified, a person can make more than the threshold and be exempt from overtime pay if the job responsibilities are administrative, managerial or professional.

Workplace advocates are ecstatic over the proposed changes and have been looking for an update to the overtime law for a very long time.  However, employer groups are concerned that if finalized, the rule will result in fewer hours, force businesses to reclassify salaried workers as hourly workers and reduce worker benefits.

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Obama Signs Major Trade Bills Into Law Giving President Fast-Track Authority

After much turmoil in Congress, particularly within his own party, President Obama signed two trade bills into law in June that were essential for moving his trade agenda forward. By providing the President additional authority for trade negotiations, the bills will likely facilitate passage of the Trans-Pacific Partnership (TPP) free trade agreement among twelve countries in the Asia Pacific region.

The Defending Public Safety Employees’ Retirement Act (H.R. 2146) included language providing the president “fast-track” or Trade Promotion Authority (TPA), which allows the president to present trade agreements to Congress for an up-or-down vote without amendments from Congress.  The Trade Preferences Extension Act (H.R. 1295) provides trade adjustment assistance (or “TAA”) to workers who lose their jobs as a result of a free trade agreement.

Passage of both bills was hailed as a victory by both the President and many congressional Republicans, which came on the heels of a major defeat the week before when Democrats initially voted against the package of bills despite a full court press lobbying effort by President Obama in the days leading up to the vote.

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