EPA Issues Final Rule To Strengthen Water Protections

September 18, 2023
The U.S. Environmental Protection Agency (EPA) announced a final rule to restore the fundamental authority granted by Congress to states, territories, and Tribes to protect water resources that are essential to healthy people and thriving communities. The agency’s final Clean Water Act Section 401 Water Quality Certification Improvement Rule will support clear, efficient, and focused water quality reviews of infrastructure and development projects that are key to economic growth.
“The Biden-Harris Administration is committed to supporting economically secure, healthy, and sustainable communities” said EPA Administrator Michael S. Regan. “To achieve this goal, we must protect our water resources while also making investments that move our nation forward. With EPA’s final Clean Water Act Section 401 rule, we are affirming the authority of states, territories, and Tribes to protect precious water resources while advancing federally permitted projects in a transparent, timely, and predictable way.”
“Clean water is critical to the health and success of our communities,” said North Carolina Governor Roy Cooper. “This rule will help provide North Carolina with the ability to protect our water quality and strengthen our infrastructure.”
“Section 401 of the federal Clean Water Act gives states and Tribes an important role regarding federally licensed or permitted projects. As Attorney General, I stood up to efforts to undermine this and now, as Governor, I'm grateful to see it restored," said Massachusetts Governor Maura Healey. “Massachusetts thanks the U.S. EPA for strengthening the partnership envisioned by the Clean Water Act with today’s rule, helping us fulfill our commitment to protecting waterways across Massachusetts.”
“Connecticut is very happy to see EPA release this final rule,” Connecticut Governor Ned Lamont said.  “We thank EPA for partnering with states to protect our vital water resources while enabling us to move forward quickly on our critical infrastructure projects.”
“EPA’s action will better protect New Mexico’s water quality at a time when federal and state protections are needed most,” said New Mexico Governor Michelle Lujan Grisham. “New Mexico must do all it can to protect our most precious resource - our water.”
“In my state, clean water is the keystone of our economy - from tourism to seafood to small business growth," said Maryland Governor Wes Moore. "I applaud the Biden Administration's commitment to working in partnership with state leaders to protect our waters from harmful pollution. By collaborating across all levels of government, we will build cleaner and more economically vibrant communities that benefit everyone for decades to come."
“DEC applauds the Biden-Harris Administration and EPA Administrator Regan for continuing to prioritize the protection of water quality and giving states a critical role in protecting our natural resources,” said New York State Department of Environmental Conservation Commissioner Basil Seggos. “New York State will fully review the final requirements announced today and continue working with EPA to further implement this and other proven Clean Water Act initiatives.”
"This new rule will allow states to fulfill the role Congress established for them in the Clean Water Act to protect water quality within their borders," said Laura Watson, director of the Washington Department of Ecology. "I applaud EPA's willingness to work with states and restore the partnership that Congress designed."
“The Clean Water Act has been a valuable tool for states to protect their waters,” said Environmental Council of States Executive Director Ben Grumbles. “We appreciate EPA’s renewed engagement under section 401 and will continue to strive for regulatory partnerships that safeguard states’ rights and clean water.”
For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable growth. This final rule strengthens that foundation while recognizing the essential partnership among the federal government, states, territories, and Tribes in protecting our waters.
Clean Water Act Section 401 enables states, territories, and authorized Tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under Section 401 of the Act, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the appropriate state, territory, or authorized Tribe issues a CWA Section 401 water quality certification or waives certification. EPA’s 2023 rule realigns the scope of Section 401 certification with decades of established practice and restores and strengthens the role of states, territories, and authorized Tribes.
The rule enhances certification review and provides regulatory certainty to advance federally permitted projects. For example, the rule establishes a 6-month default timeframe (when the federal agency and certifying authority fail to reach an agreement) and a 1-year maximum timeframe for certification review (the statutory maximum). The rule emphasizes that states, territories, and Tribes may only consider the adverse water quality-impacts from the activity. To limit delays, the rule also provides a clear approach to defining the required contents in a request for certification.
Mar-Jac Poultry Investigation Into Young Teen’s Death at Hattiesburg Plant Continues
U.S. Department of Labor investigators are seeking to interview employees at a Hattiesburg poultry plant as they continue their probe into the death of a 16-year-old worker in July 2023.
The department's Occupational Safety and Health Administration and Wage and Hour Division have opened workplace safety and child labor investigations at the Mar-Jac Poultry MS, LLC plant. To aid the investigation, OSHA obtained a warrant from the U.S. District Court for the Southern District of Mississippi to secure access to the Mar-Jac facility and investigate safety hazards related to the incident. The warrant allowed federal officials to question any employer, operator, agent or employee privately and to review records related to the operation and maintenance of the equipment involved in the incident.
"As federal investigators continue to try to understand how a 16-year-old died at the Mar-Jac Poultry plant in Hattiesburg, we are asking current Mar-Jac employees for their assistance," said OSHA Area Director Courtney Bohannon in Jackson, Mississippi. "Federal law protects the rights of workers to participate in a U.S. Department of Labor investigation and forbids employers from interfering in any way, including by retaliating against an employee who does. With help from Mar-Jac's workers, we can make sure the employer provides a safer environment for everyone who works there."
Employees at the Mar-Jac Poultry plant in Hattiesburg are asked to contact OSHA at 855-321-6742 or the Jackson Area Office at 601-965-4606, confidentially if they choose, if they have facts that might assist the investigations. Plant workers can also submit a confidential complaint online.
To support the investigations, OSHA representatives are working closely with local community groups to establish trust with workers and their families. In addition, the agency is collaborating with advocacy groups, such as the Immigrant Alliance for Justice & Equity of Mississippi, to contact immigrant workers fearful of retaliation by their employer if they cooperate with investigators.
"Child labor laws exist to safeguard young workers from tragedies like the one that happened at the Mar-Jac Poultry plant," said Wage and Hour Division District Director Audrey Hall. "To fully protect workers, we need information from employees and the community at-large. Workers can contact us directly at 866-487-9243 to file a complaint or share information confidentially, regardless of where they are from and without fear of retaliation. Workers can also contact the Employment Education and Outreach alliance hotline at 877-522-9832 to speak to someone confidentially in Spanish."
Federal law gives everyone working in the U.S., regardless of immigration status, legal rights to a safe and healthy workplace and to file a confidential complaint and request an OSHA inspection if they believe hazardous conditions exist at their workplace or their employer is not following OSHA standards. Workers also have the legally protected right to report an employer they feel has retaliated against them for reporting safety concerns. Retaliation can involve reporting the employee to the police or immigration authorities. Complaints must be filed with OSHA within 30 days of the retaliation.
Headquartered in Gainesville, Georgia, Mar-Jac Poultry is an integrated poultry production company that operates processing plants, feed mills and hatcheries in Alabama, Georgia and Mississippi. Established in 1954, the company today produces two million birds and 8,500 tons of feed per week. Its poultry products are shipped worldwide, primarily serving the food service industry.
California Moves Closer to Banning Toxic ‘Forever Chemicals’ in Cleaners
California lawmakers have advanced a bill to ban the toxic “forever chemicals” known as PFAS from household and institutional cleaners sold in the state. The bill cleared the Legislature and now heads to Gov. Gavin Newsom for his signature.
Assemblymember Dr. Akilah Weber (La Mesa-San Diego) authored Assembly Bill 727 to protect the health of consumers and workers from PFAS. They are known as forever chemicals because they don’t break down, and they pose a health risk to the millions of people exposed to them through cleaners and many other products.
If enacted, the ban would take effect on January 1, 2026, and make California the first state to ban PFAS from household and institutional cleaners. The bill also sets a January 1, 2028, deadline for banning PFAS from institutional floor finishes and sealers.
“It is alarming that these toxic substances contaminate our water,” said Weber. “The legislation I've introduced marks a substantial move to mitigate the detrimental impacts of PFAS, safeguarding the well-being of Californians and our environment. It is incumbent upon manufacturers to use PFAS alternatives in their cleaning product formulations.”
The Environmental Working Group and the California Association of Sanitation Agencies are sponsoring the legislation.
“Consumers should have peace of mind when using everyday household items like cleaning products,” said Susan Little, EWG’s senior advocate for California government affairs.
“The health harms of PFAS are widely documented. It’s high time we took immediate steps to eliminate these forever chemicals from our cleaners to protect our families, workers and communities,” she added.
Very low doses of PFAS in drinking water have been linked to the suppression of the immune system and are associated with an elevated risk of cancer, increased cholesterol, and reproductive and developmental harms, among other serious health concerns. 
These chemicals are used in a wide range of consumer products, including cleaners, as well as personal care products, food packaging, textiles like waterproof clothing, and many others.
“We commend the Legislature for their passage of AB 727 and thank Assembly Member Weber for her leadership on this issue,” said Adam Link, executive director of the California Association of Sanitation Agencies. “This important bill will impose a source control policy that will keep PFAS chemicals out of our watersheds. It is critical to continue promoting policies that eliminate these chemicals from entering commerce to protect the environment and keep essential services affordable.”
PFAS are found in the blood of virtually everyone on Earth, including newborn babies. These chemicals are persistent and they build up in the environment and in the bodies of people and animals.
Even cleaning products advertised as “green” or “natural” may contain ingredients that can cause health problems. Manufacturers can use almost any ingredient they choose, including those known to cause cancer or pose other health or environmental hazards.
“For too long, companies have been allowed to use these dangerous chemicals in cleaning products without disclosing them to consumers,” said Samara Geller, EWG’s senior director of cleaning science. “Now consumers will soon have access to safer products.”
“By banning these chemicals from cleaning products, California is taking a significant step toward reducing exposure to PFAS while promoting cleaner living environments for all Californians,” said Geller.
ILO Report Highlights Need for Workplace Eyesight Protection Programs
The International Labor Organization (ILO) has released a new report, “Eye Protection and the World of Work” (PDF). According to ILO’s Sept. 5 policy brief, more than 13 million people worldwide live with vision impairments linked to their work and an estimated 3.5 million workplace eye injuries occur every year. ILO produced the report in collaboration with the International Agency for the Prevention of Blindness to highlight the importance of healthy vision to workplace safety and productivity. It outlines an approach to eyesight protection based on the hierarchy of controls familiar to occupational and environmental health and safety professionals.
AIHA member Laurence Svirchev, CIH, prepared the ILO report during his term as the chair of AIHA’s International Affairs Committee. Svirchev informed AIHA that one of the report’s most important contributions is the provision “that employers need to provide a system to include workers’ naturally occurring sight loss, including age-related vision loss, in risk assessments.”
“Why should an experienced seamstress in Bangladesh or […] the United States be demoted to a janitor position because of age-related vision loss?” Svirchev asked. “A simple pair of 1.5 lenses will keep her working in dignity, and the employer keeps a productive worker. This concept forms part of the right to a safe and healthy workplace as guaranteed by international law.”
While Svirchev noted that much of the report’s technical content about occupational exposures causing vision loss is known to OEHS professionals, he added that his research led him to notice “the paucity of active collaboration” between OEHS professionals, optometrists, and ophthalmologists. “Our medical colleagues are great at treatment, and we are great with prevention,” Svirchev said.
Chapter 5 of the report calls for interdisciplinary collaboration to protect workers’ eyesight through control of hazards. Chapter 6 takes this idea further by proposing public health campaigns to promote eye health, based on the model of health promotion campaigns conducted at workplace, regional, and societal levels. The report concludes that transformative change on the issue of eye health will only be possible through collaboration between government agencies, medical professionals, non-governmental organizations, community and international organizations working in the field of eye health, and occupational health professionals. “It is through these synergist partnerships that significant improvements to workplace eye health will be realized, benefiting workers and employers, and contributing to advancing social justice,” the report states.
ILO’s publication of “Eye Protection and the World of Work” was timed to promote World Sight Day. This global initiative to promote eye health in the workplace will occur Oct. 12, 2023.
ILO’s policy brief provides additional information and a link to download the report.
Report Presents Data on Fatalities in Oil and Gas Extraction
Transportation incidents, contact injuries, and explosions were the most frequent fatal incidents among workers in the oil and gas extraction industry during 2014–2019, according to findings presented in the Sept. 1 issue of CDC’s Morbidity and Mortality Weekly Report (MMWR). The data are from the Fatalities in Oil and Gas Extraction database maintained by NIOSH, which tracks more than 100 industry-specific variables.
While the Census of Fatal Occupational Injuries (CFOI) managed by the U.S. Bureau of Labor Statistics is the main source of information on workplace deaths, it does not report on industry-specific factors, and it typically excludes data related to transportation incidents that occur during workers’ commutes. The NIOSH database includes these incidents because oil and gas extraction work often occurs in remote locations, necessitating long commutes. Of the 470 fatalities that occurred during 2014–2019, 26.8 percent were vehicle incidents. According to the report, previous research has indicated that low seat belt use is a concern among workers in the industry.
CFOI also excludes heart attacks, which it characterizes as illnesses. Since heart attacks can be caused by acute exposures to toxic gases and vapors, which are hazards in the oil and gas extraction industry, NIOSH includes them in its database. Cardiac events accounted for 14.7 percent of the fatalities in the NIOSH database. In 2016, following reports identifying nine deaths among oil and gas workers in which exposure to hydrocarbon gases and vapors was known or suspected, NIOSH and OSHA issued a hazard alert (PDF) that highlighted the dangers of manually measuring crude oil in tanks. This task required workers to open a hatch, which could result in the release of hydrocarbon gases and vapors. The American Petroleum Institute later published a new standard that offers safer methods for measuring crude oil. Other industry-specific factors that can contribute to cardiac events are the physical exertion necessary to perform work and the frequent occurrence of lone work. In the NIOSH database, lone workers suffered 21.5 percent of fatalities.
Another difference between CFOI and the NIOSH database concerns contract workers, many of whom work for employers classified in other industries. As one example highlighted in the MMWR report, crude oil haulers typically work in oil and gas extraction only during energy booms. CFOI does not attribute fatalities among such workers to the oil and gas extraction industry.
NIOSH data also revealed that oil and gas extraction worker fatalities occurred most often during the production phase of well development. Well-servicing and drilling operations also had high numbers of fatalities.
For more information, read the MMWR report.
News Links
Trivia Question of the Week