5 regulatory issues to watch in 2024

As foundry products and offerings evolve with time, regulations affecting our industry also evolve. The responsibility to understand and comply with regulatory requirements sits squarely in the hands of foundry leaders. Not only do leaders need to be aware of current regulatory requirements, but they must also be aware of potential new regulations that may affect foundries in the future. To help you understand the regulatory landscape in 2024, below are five topics that are presently being tracked by the NFFS Government Affairs Committee that have potential to affect your foundry in 2024:

1) Heat Injury and Illness Rule for Indoor and Outdoor Work Environments

On October 27, 2021, OSHA published an Advance Notice of Proposed Rulemaking (ANPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register. With this publication, OSHA has begun the rulemaking process to consider a heat-specific workplace standard. A standard specific to heat-related injury and illness prevention would more clearly set forth employer obligations and the measures necessary to more effectively protect employees from hazardous heat. The ultimate goal is to prevent and reduce the number of occupational injuries, illnesses, and fatalities caused by exposure to hazardous heat.

The publication of the ANPRM initiated a public comment period allowing OSHA to gather information, diverse perspectives and technical expertise on issues that might be considered in developing a heat standard. These issues include the scope of a standard, heat stress thresholds for workers across various industries, heat acclimatization planning, and heat exposure monitoring, as well as the nature, types, and effectiveness of controls that may be required as part of a standard.

OSHA concluded the Small Business Regulatory Enforcement Fairness Act (SBREFA) process on November 3, 2023. This step in the rulemaking process included the convening of a Small Business Advocacy Review (SBAR) panel to gain input from small entity representatives (SERs) on the potential impacts of a heat-specific standard.

The next step is for OSHA to develop a proposed rule based on the recommendations from the panel report, public input, and additional research. For more information on how to engage with this stage of the rulemaking process, visit: https://www.osha.gov/laws-regs/rulemakingprocess#v-nav-tab2.

 2) Blood Lead Level for Medical Removal

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is looking at revising  workplace lead exposure standards for general industry and construction. OSHA has published an Advance Notice of Proposed Rulemaking in the Federal Register seeking comments as it considers significant revisions to its rules. A vast number of iron, steel, aluminum, and non-leaded brass foundries that are not currently subject to the lead standard could be affected by significantly lower Permissible Exposure Limits and Action Levels.

 The current OSHA PEL-TWA (Permissible Exposure Level as a Time Weighted Average (TWA) for airborne lead is 50 μg/m3 (micrograms per cubic meter of air sampled) and the Action Level is 30 μg/m3. When the Action Level is exceeded for more than 30 days a year, the employee must be in a medical surveillance program which includes blood lead level (BLL) testing. The current Federal OSHA return-to-work BLL is 40 μg/dL (micrograms per deciliter), while State-Plan States may have even tighter requirements. Michigan OSHA, for example, has a return-to-work BLL of 15 μg/dL.

 OSHA is seeking input on blood lead levels for medical removal and return to work, as well as the following:

• Medical surveillance provisions, including triggers and frequency of blood lead monitoring
• The Permissible Exposure Limit
• Action Level
• Ancillary provisions for personal protective equipment, housekeeping, hygiene and training
• Surface action levels

OSHA adopted its standards on lead exposure for general industry in 1978. Since then, studies by the American Conference of Governmental Industrial Hygienists (ACGIH), and the Association of Occupational and Environmental Clinics (AOEC), among other organizations, have indicated that adverse effects can occur at lower BLLs.

California and Washington are in the process of updating their own lead standards, which OSHA is examining closely. California is considering a BLL removal of 20/30 μg/dL, a return-to-work level of 15 μg/dL, a PEL-TWA of 10 μg/m3 and an Action Level of 2 μg/m3. Washington State is considering BLL removal of 20/30 μg/dL, a return-to-work level of 15 μg/dL, a PEL-TWA of 20 μg/m3 and an Action Level of 10 μg/m3.

3) OSHA Walkaround Proposed Rule

On August 30, 2023, OSHA published the proposed regulation that will allow union representatives to accompany OSHA inspectors on walk around inspections at non-union workplaces. The proposal focuses on allowing third party representatives to participate in OSHA inspections, if requested by an employee, on the basis that they have “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills of third-party representative(s) authorized by employees who may be reasonably necessary to the conduct of a CSHO's physical inspection of the workplace.”

The proposal would allow workers and/or their representatives to identify an individual to accompany OSHA inspectors on facility walkarounds, regardless if the individual is an employee of the employer and regardless of whether the workplace is unionized. This would fundamentally change the nature of the workplace safety inspections and put OSHA in the middle of organizing campaigns and/or labor negotiations between the employer and union. These individuals, who could be union organizers, environmental activists, or engaged in some other campaign against the employer, could use the inspection as an opportunity to collect information about the workplace, target workers for an organizing drive, or simply obtain proprietary information. There is scant mention of this opening the door for union representatives, but there is no question that will be the primary effect of this regulation if implemented.

This policy was originally attempted during the Obama administration via a 2013 Letter of Interpretation, but that Letter was struck down by a court as part of a suit by NFIB and later withdrawn by the Trump administration.

On September 21, NFFS joined the Coalition for Workplace Safety (CWS) and 73 other organizations in sending a letter to the Assistant Secretary of Labor for Occupational Safety and Health requesting a 60-day extension to the comment period on the agency's notice of proposed rulemaking regarding the Worker Walkaround Representative Designation Process.

NFFS also filed written comments on behalf of the non-ferrous industry on October 19, 2023. A copy of the letter is available HERE.

4) NLRB Card Check Process

In a significant development, the National Labor Relations Board (NLRB) has decided to resurrect a process known as "card check," bringing back elements of a policy that had been set aside for more than half a century. This decision could have far-reaching consequences for both employers and labor unions. Under Card Check, if more than 50% of workers at a facility sign a card, the government would have to certify the union, and a private ballot election would be prohibited--even if workers want one. 

• The Card Check Revival: The NLRB's decision, reached in a 3–1 vote and exemplified in a case involving Cemex Construction Materials, introduces a modified version of the 1949 Joy Silk doctrine. Under this revived doctrine, "employers must bargain with unions unless they have a good-faith doubt that majority support exists." This move resurrects a principle that had been set aside by the NLRB in the early 1970s following the Supreme Court's ruling in NLRB v. Gissel Packing Co. In that landmark case, the Supreme Court had established that the NLRB could mandate employer-union negotiations when employers engaged in severe misconduct that could taint any election.
  
  
• Implications for Unions: This decision could significantly empower labor unions by providing them with an alternative route to represent workers in specific cases. Instead of going through the traditional and often protracted election process, unions can now assert their representation when a majority of workers sign cards in support of unionization. This approach may streamline the unionization process and potentially boost union membership.
  
  
• NLRB's Recent Actions: Interestingly, this revival of the card check process comes on the heels of the NLRB's recent move to reinstate Obama-era regulations designed to expedite union elections. These actions collectively signal a shift in the NLRB's stance, one that some critics argue may tip the balance in favor of labor unions.
  
  
• The Controversy Surrounding Card Check: It's essential to recognize that card check has long been a contentious issue, especially among manufacturers and employers. Critics argue that it is intrinsically unfair and insecure because it does not guarantee employees the right to cast their votes in secret, potentially subjecting them to undue pressure from union organizers.

Manufacturers and employers have historically opposed card check for these reasons, contending that it undermines the integrity of the unionization process and limits employees' ability to make their choices privately.

5) Global Arrangement on Sustainable Steel and Aluminum

The United States and the European Union Agree have agreed to address excess global steel and aluminum capacity by negotiating a global agreement to identify and promote "sustainable steel and aluminum". Commencing in October 2021, these negotiations aim to transform the landscape of aluminum trade between the U.S. and EU. The primary objective is to create trade barriers in both regions against aluminum imports originating from countries characterized by high carbon emissions and excessive aluminum production. However, talks between the United States and the European Union on a global arrangement have stalled and that could result in the reimposition of tariffs back on European metal imports. Because of the short timeframe for an agreement, these talks have entered a pivotal phase.

Here's a concise breakdown of the key developments and challenges at play:

• Defining "Green Aluminum": A significant hurdle in these negotiations revolves around the precise definition of "green aluminum." The classification of environmentally friendly aluminum is fundamental to determining which aluminum products will fall under trade restrictions.
• Structuring Trade Measures: Deep-seated disagreements persist over the structure of these trade measures. These measures are designed to address carbon emissions reduction and the curbing of excess production capacity. However, consensus on the approach remains elusive, with concerns regarding potential violations of global trade rules.
• Carbon Border Adjustment Mechanism (CBAM): The EU has advocated for the use of the Carbon Border Adjustment Mechanism (CBAM) to tackle carbon emissions concerns. In contrast, the U.S. leans towards simpler tariff mechanisms. Implementing CBAM in the U.S. presents political challenges, with resistance to imposing global standards on domestic companies.
• WTO and Climate Worries: Both the U.S. and EU are insistent that any solution must adhere to WTO rules and their respective climate policies. However, concerns persist that certain U.S. proposals could run afoul of WTO rules prohibiting discrimination.

Despite these challenges, both the US and EU remain committed to achieving an ambitious agreement in 2024. The outcome holds immense significance for the aluminum industry, and success will depend on concerted efforts and cooperation between both parties.