Nearly two weeks after the Occupational Safety and Health Administration announced an updated rule on silica dust exposure, industry leaders responded this week by filing a petition to the U.S. Court of Appeals for the Fifth Circuit. The petition asks the court to review the OSHA rule.

In a press release, the Association of Builders and Contractors (ABC) said that they are calling on the court to review the rule: “The petitioning groups are concerned that the agency failed to take into account this evidence and moved forward with the same infeasible PEL [permissible exposure limit] in the final rule. This and other final rule provisions display a fundamental misunderstanding of the real world of construction.”

Industry groups feel that OSHA has underestimated the cost of implementing the regulation. OSHA estimates that the cost to meet this rule will be about $500 million, whereas industry groups such as the Construction Industry Safety Coalition say that the new standard will cost the construction industry $5 billion per year. Groups like the Associated General Contractors of America say that the ruling is yet another way for President Obama’s administration to gain positive headlines, but that “ will be all but impossible for most construction firms to comply with this new rule."

The National Association of Home Builders and the Associated General Contractors of America have added their names to the petition alongside the ABC, as have the following regionally-affiliated groups: the Mississippi Road Builders’ Association, the American Subcontractors Association of Texas, the Pelican Chapter of Associated Builders and Contractors, the Louisiana Associated General Contractors, the Associated Masonry Contractors of Texas, the Distribution Contractors Association, the Mechanical Contractors Associations of Texas, and the Texas Association of Builders.

The updated OSHA silica dust rule would lower the amount of allowable silica dust exposure by 80%. Under the rule, the PEL would go from 250 micograms per cubic meter to 50 micograms per cubic meter during an eight-hour workday. The rule would also require medical exams to be offered every three years to employees who have to wear respiratory protection for 30 days or more while on a jobsite. The new rule will take effect on June 23, 2016, wherein businesses will have one year to meet the new standard.

The press release concluded that the rule continues to echo the criticism from industry leaders that OSHA and the Department of Labor have shown "a fundamental misunderstanding of the real world of construction." It is expected that other industry leaders are to follow suit in filing similar petitions.

While there is no set time for when a court rules on a rehearing, it is often within 30 days.

We will continue to update you as industry leaders respond to OSHA's new rule.

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