AWPA Wireline - March 2003

InsideWashington
By Janet Kopenhaver, AWPA Director of Government Affairs

TRADE
PNTR for Russia
House and Senate Democratic leaders announced plans to introduce legislation that would grant permanent normal trade relations (PNTR) to Russia and allow Congress to vote on Russia's accession to the World Trade Organization (WTO). Sen. Max Baucus (MT), ranking Democrat on the Senate Finance Committee; Rep. Charles Rangel (NY), ranking Democrat on the House Ways and Means Committee; and Rep. Sander Levin (MI), ranking Democrat on the House Trade Subcommittee, announced the effort and said legislation would be introduced soon. Under a US law known as the Jackson-Vanik amendment, Congress must annually grant normal trade relations to countries like Russia. Congress usually grants PNTR to countries during WTO accession, but because Russia's accession would occur after the granting of PNTR, the bill would provide for a vote after WTO negotiations are completed.

Court Orders Trade Documents to be Public
A US District Court ordered the Bush Administration to make public documents revealing US and foreign government positions in trade negotiations with potential impacts on domestic public health, labor and environmental laws.

At issue in the court's order were documents requested by public interest organizations that the US had already shared with foreign governments - in this case, Chile - but had refused to show to US citizens. This decision sets a legal precedent for a more transparent and democratic process that has been sought by public interest and environmental organizations for years, but denied by both the Bush and Clinton Administrations.

The court's order was the result of a lawsuit filed in November 2001 by Earthjustice on behalf of the Center for International Environmental Law, Friends of the Earth, and Public Citizen. These groups are concerned that the new international trade rules could weaken US and Chilean environmental and health standards.

ENVIRONMENTAL
Clean Air Rules
Anti-pollution rules for power plants and steel mills will be diluted by the Bush Administration, which announced changes to the Clean Air Act that will make it easier for industries to operate without investing in modern emissions controls. The new rules will allow industry to continue using equipment that does not meet emissions standards if the plant's overall pollution level is within EPA limits, and stipulates that facilities may use their highest emissions over the previous decade as a baseline trigger for new anti-pollution devices. Industry will be exempt from having to update emissions equipment if it has been reviewed by the EPA within the past 10 years; and will not have to control pollutants as a result of installing devices that control other contaminants.

OSHA Hearing Rule
Beginning January 1, 2004, employers will be required to check a hearing loss column to record work-related cases meeting the new recording criteria established by the Occupational Safety and Health Administration (OSHA). The new recordkeeping standard requires employers to record work-related hearing loss cases when an employee's hearing test shows a marked decrease in overall hearing. Under the new criteria, employers will record 10-decibel shifts from the employee's baseline hearing test when they also result in an overall hearing level of 25 decibels.

MSD Provision
OSHA is postponing implementation for one year three provisions related to musculoskeletal disorders (MSDs): the rule's definition of MSDs; consideration of MSDs as privacy concern cases; and requirements to check a MSD column on the OSHA log. The delay does not affect an employer's obligation to record workplace injuries and illnesses. However, employers will not be required to use an MSD definition to categorize cases on the OSHA log for calendar year 2003. Instead, they must check the column for "injury" or "all other illness" depending on the circumstances of the case.

TMDL Update
The US Environmental Protection Agency (EPA) announced that it is proposing to withdraw the July 2000 final rule which revised EPA's Total Maximum Daily Load (TMDL) program under the Clean Water Act. The 2000 rule was determined to be unworkable based on reasons described by thousands of comments and was challenged in court by some two dozen parties. AWPA submitted comments to EPA supporting this move.

The Clean Water Act requires states to identify waters not meeting water quality standards and to develop plans for cleaning them up. The TMDL program provides a process for determining pollution budgets for the nation's waters that once implemented will assure that Clean Water Act goals will be met.

In 2001 and 2002 combined, more than 5,000 TMDLs were approved or established under the current TMDL rule. The number of TMDLs approved or established annually has steadily increased in the last four years jumping from 500 in 1999 to nearly 3000 in 2002.

On a related front, America's largest farm organization is asking the US Supreme Court to take a case that could invalidate the EPA's ability to identify rivers and lakes that have become polluted only because of non-point sources of pollution and to set limits on that pollution -- the TMDL rule. The American Farm Bureau Federation is charging that the TMDL program is illegal because Congress intended non-point source pollution to be under state, rather than federal, control. They further argue that the Clean Water Act does not give EPA the authority to establish TMDLs for polluted sources that are impaired only because of non-point source pollution.

Section 303 of the Act requires compiling TMDLs on waters for which point-source effluent limitations are not stringent enough to implement any water quality standard applicable to such waters. The plaintiffs say the phrase "not stringent enough" means that waters in question are polluted by point sources, since only those waters would be subject to effluent limitations. EPA, on the other hand, interprets the language as referring to waters that are polluted by point-source pollution, non-point source pollution or a combination of both.

Both the district court and the 9th US Circuit Court of Appeals agreed with EPA's interpretation of the Act.

LEGISLATION
Antidumping Law Revision
Senators Blanche Lincoln (D-AR), Evan Bayh (D-IN), Richard Durbin (D-IL) and Ernest Hollings (D-SC) introduced a bill that would amend the Tariff Act of 1930 to provide for an expedited antidumping investigation when imports increase materially from new suppliers after an antidumping order has been issued, and to amend the provision relating to adjustment to export price and constructed export price.

Imports of merchandise from an additional supplier country are considered to be "increasing materially" if such imports increase by 15% or more over the amount of such imports during a period of comparable duration preceding initiation of the antidumping investigation.

Not later than 45 days after the date on which the request is received, the International Trade Commission would determine if there is a reasonable indication of material injury or threat of material injury. If the Commission makes an affirmative determination that there is a reasonable indication of material injury, the Commission will make a final determination within 120 days. These provisions would also apply to Canada and Mexico.