Skip links

NCA Alert: OSHA Physical Workplace (Walkaround) Inspections; WOTUS

This morning, the Occupational Safety and Health Administration (OSHA) released a Notice of Proposed Rulemaking that would revise existing regulations regarding who can be authorized by employees to act as a representative accompanying an OSHA compliance officer during a physical workplace inspection (also referred to as a “walkaround inspection”). Under the proposed rule, employees will be allowed to authorize either an employee or a non-employee third party for the walkaround inspection if the compliance officer determines the third party is “reasonably necessary to conduct an effective and thorough inspection.” 

The proposed rule clarifies the types of individuals who are allowed to act as third parties for walkaround inspections. Current regulations restrict qualified individuals as those with skills and knowledge similar to that of an industrial hygienist or safety engineer. The proposed revisions would significantly broaden the categories of qualified third-party individuals to include union representatives, worker advocacy organizations, attorneys and translators. 

Additionally, OSHA seeks comment and examples of third-party representatives who have been or could be reasonably necessary to the conduct of an effective and thorough physical inspection of a workplace.

Waters of the United States
This afternoon, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced a final rule amending the January 2023 definition of “waters of the United States” (WOTUS). The revisions conform with the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. The Sackett decision held that the Clean Water Act extends only to “wetlands with a contiguous surface connection to bodies that are ‘waters of the United States’ in their own right so that they are ‘indistinguishable’ from those waters.”

The proposed revisions remove the “significant nexus” standard that was the basis of the January rule and allowed streams and wetlands ‘adjacent’ to larger bodies of water to be protected under the Clean Water Act. The standard deemed that protected waters were those that significantly affected “the chemical, physical or biological integrity of traditional navigable waters.” In accordance with the Sackett decision, the new rule states that wetlands must have a continuous surface connection to navigable waterways. 

The EPA and Army Corps of Engineers will host a public webinar on Sept. 12, 2023 to provide updates on the new WOTUS rule. 

Contact NCA President & CEO Joe Trauger at [email protected] if you have any questions or comments.