Special Regulation Edition
Mar 1, 2011
| BILL NAME | SUMMARY | STATUS |
|---|---|---|
| Ozone and National Ambient Air Quality Standards | Beginning in 2009, EPA moved to reconsider the National Ambient Air Quality Standards (NAAQS) for ground-level ozone from 80 parts per billion to between 60 and 70 parts per billion. A recent study shows that this EPA “do-over” could cost upward of $1 trillion every year between 2020 and 2030 and could sacrifice more than 7 million jobs in the next decade. | On December 8, 2010, EPA delayed its deadline for a decision for a fourth time. It will make a decision on June 29, 2011. |
| Coal Ash | EPA is determining whether to regulate the storage of coal ash, a byproduct of the coal burning process, as a solid waste or a hazardous waste. Environmental groups have been pushing for the “hazardous waste” designation; industry wants regulation as “solid waste.” The difference is substantial in terms of costs to regulated entities. As noted by EPA, coal ash is used in cement, concrete, wallboard, roofing materials, paints and plastics, and highway projects. A “hazardous” substance designation will likely deter manufacturers and consumers from using coal ash in any application, thus harming the beneficial reuse industry. |
In August 2010, EPA extended the period for public comment, scheduled additional public hearings, and delayed its decision. In a comment letter, the Chamber said there is no evidence that EPA, as required by law, has evaluated the potential loss or shifts of employment that could result from its proposed rule. |
| Noise Exposure Standard Interpretation | In October 2010, the Occupational Health and Safety Administration (OSHA) proposed that employers be required to implement engineering controls (e.g., sound barriers or newer, quieter equipment) or administrative controls (e.g., rotating employees in and out of exposure) under the noise exposure standard for workers unless doing so would bankrupt the company. The interpretation would reverse 25 years of enforcement policy, which allows employers to rely on less expensive but effective personal protective equipment, such as earplugs and headphones, to protect employees from excessive levels of noise. Early indications were that the interpretation would have had an impact of more than $1 billion. |
On January 19, OSHA announced it was withdrawing the proposal. The Chamber submitted preliminary comments just before the withdrawal. |
| Musculoskeletal Disorder (MSD) Record Keeping | In January 2010, OSHA proposed to amend its record-keeping regulation by requiring employers to check a box to indicate whether an employee had suffered an MSD, the kind of injury associated with ergonomics. Currently, employers are required to record these injuries but not identify them specifically as an MSD. This new record-keeping requirement would force employers to make a diagnosis on which there is anything but certainty and would hold them accountable for their determination. Also, it would significantly expand the number of incidents—and therefore the risk of error—employers would have to consider. | Comments submitted to OSHA by the Chamber and supported by 18 other groups objected to the proposal and criticized OSHA for not conducting a small business review panel before issuing the proposed regulation. OSHA announced on January 25 that the proposal was being temporarily withdrawn from review by the Office of Management and Budget.
|
| Grandfathered Plan Status Under the New Health Care Law | Interim final rules issued jointly by three agencies stated that a fully insured group health plan would lose its grandfathered status if it entered into a new insurance contract, other than a renewal, after March 23, 2010, even if the benefits and coverage are similar or identical. The Chamber argued for greater plan flexibility in comments filed on August 16, 2010. | On November 17, 2010, the three agencies issued an amendment to the interim final rules that says simply changing issuers or carriers would not necessarily cause a fully insured plan to relinquish grandfathered plan status, provided that the plan would otherwise retain grandfathered plan status according to the standards. |
| Medicine Reimbursements | The new health care law says that individuals must have a prescription for over-the-counter (OTC) medicines or drugs if they want to pay for those medicines through employer-provided health reimbursement arrangements (HRAs) or flexible spending accounts (FSAs). On September 3, 2010, the IRS issued guidance that went even further than the letter of the law, prohibiting the use of FSA or HRA debit cards for OTC medicines even with a prescription. These rules undermine the appeal of consumer-driven products like HRAs and FSAs and incentivize consumers to seek prescription drugs, which cost from 2 to 10 times more than OTC medicines. | After receiving comments from the Chamber, the IRS on December 23, 2010, issued a new guidance permitting participants to use their health FSA and HRA debit cards to pay for prescribed OTC medicines and drugs. |
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