Recently, the Texas Association of Builders (“TAB”) filed a petition in the Fifth Circuit Court of Appeals seeking a review of a newly finalized OSHA rule, which was aimed at reducing confined space risks in construction activities.  The TAB petition potentially hinders the rule’s implementation, delaying years’ worth of the rule’s development by the Bush and Obama Administrations.

Specifically, the OSHA final rule conforms construction safety standards with OSHA’s existing confined space regulations for general industry, but contains additional provisions.  For example, the new rule contains an additional provision that requires parties to coordinate with local emergency responders before entering a confined space.

Ultimately, TAB’s argument against the new confined space standard is grounded upon the idea that it is arbitrary, capricious and not supported by substantial evidence. Therefore, TAB contends that OSHA’s attempted implementation of the rule is an abuse of discretion.  TAB’s petition in the Fifth Circuit seeks to have the rule vacated by the Court or remanded to a lower court for further review.

TAB would not respond to comments given the pending litigation.  However, the National Association of Home Builders, a group that shares similar interests to those of TAB, previously raised objections to the rule back in 2008 based on OSHA’s treatment of multi-employer legal issues under the rule.