Law Continued from page 59 publication of the annotated PELs, employees injured by toxic or hazardous substances may claim that the employer should not receive workers’ compensation protection because the employer knew that OSHA’s existing PELs were inadequate, but intentionally continued to expose them to this unsafe condition without adequate protections. Further, in the event a third-party employee (i.e., outside contractor) is injured by exposure to toxic or hazardous substances, the employer is not protected by workers’ compensation. In that case, an employer may no longer be able to claim that its conduct was not “negligent” and that it acted reasonably by its adherence to OSHA’s PELs since OSHA has now indicated that its regulatory PELs may be inadequate. Indeed, because employers can now be presumed to “know” of OSHA’s annotated PELs, and the more stringent “voluntary” standards, the injured individual may claim that the employer was, at a minimum, negligent for relying on the current regulations. As all employers should know, under OSHA’s Globally Harmonized System for hazard communication compliance, employers will be receiving safety data sheets that will contain OSHA PELs, as well as other PELs based upon NIOSH and other recognized health authorities. The employer would be prudent to consider developing its program around these lower PELs rather than OSHA’s PELs to avoid potential liability under OSHA, workers’ compensation, and civil liability. Conclusion As demonstrated by Fiberdome, Inc. and the recently published annotated PELs, employers can expect OSHA to issue more General Duty Clause citations for failing to adhere to PELs that are more stringent than OSHA’s existing regulations. Though it is unclear if such citations will withstand litigation, employers should evaluate their current exposure levels and determine whether it may be appropriate to voluntarily adhere to OHSA’s annotated PELs in the interest of limiting potential OSHA, workers’ compensation, and civil liability. R Biofuels Continued from page 52 assign RINs with a D6 code to palm oilbased use palm oil as a feedstock are already registered with EPA and would be capable of generating RINs if they used an approved feedstock. Palm oil has not been approved as an eligible feedstock to generate RINs under EPA’s Renewable Fuel Standard. However, grandfathered biodiesel plants – construction of which started prior to December 19, 2007 – can biodiesel if they keep up with the appropriate documentation. According to EPA Moderated Transaction System data, the share of 2013 biomass-based diesel (D4) RINs generated by imports was 20 percent of the 2.72 billion D4 RINs total. A year earlier, imports accounted for less than 10 percent of the D4 RINs generated. R www.rendermagazine.com Render April 2014 61
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