OSHA Walk Around Inspection Rule and CFATS

Today I read a press release from the Alliance for Chemical Distribution (formerly the National Association of Chemical Distributors) on the OSHA “Worker Walkaround Representative Designation Process” notice of proposed rulemaking (NPRM) that was published on August 30^th, 2023. The comment period closed on Monday. Not surprisingly, ACD (and probably most industrial organization) have concerns about the expansion of the universe of personnel that would be approved to accompany OSHA inspectors on facility walkaround tours.

The reason that my attention was called to the press release was that one of the topics used to justify the ACD’s opposition was chemical facility security. That portion of the release states:

“The most worrisome aspect of this proposal is its requirement to force facilities to permit entry to individuals who would otherwise be forbidden from entering. ACD members house a wide range of chemicals and have various chemical processes occurring at their facilities, some of which can be dangerous. For these reasons, ACD members have long supported programs such as the Chemical Facility Anti-Terrorism Standards (CFATS) and worked closely with regulators to ensure their chemicals and processes are protected. This proposal would effectively undermine these efforts as it would force facilities to grant entry to individuals without undergoing any necessary background or other safety checks. Such individuals would be given intimate access and information regarding which chemicals are stored on the premises, where they are stored, and what they are used for. This is extremely worrying and raises significant security concerns.”

ACD/NACD has long been a supporter of the CFATS program and was generally supportive of the development of the personnel surety process that was adopted by that program. Interestingly, that program would not have been impacted by the proposed OSHA walk around rulemaking. CISA only required personnel who were going to be provided unaccompanied access to restricted areas within covered facilities to undergo the advanced vetting process. OSHA inspectors conducting walkaround inspections are going to be accompanied by company representatives, so employee representatives accompanying the inspector would, by definition, also be accompanied.

But we must remember that the CFATS program was (unfortunately past tense) a counter terrorism program. There are other types of security concerns that a facility might have that could be impacted by relatively unknown outsiders accompanying an OSHA inspector on a plant walk around; innovative process details, blend recipes, and raw material suppliers are some of the types of information that a facility might want to protect. While an active CFATS program may not be an adequate justification for avoiding outsiders from accompanying an OSHA inspector, there may very well be legitimate security concerns that should be addressed by this rulemaking.