Violations of 29 CFR § 1910.119 “process safety management of highly hazardous chemicals” standards (PSM Standards); MCL 408.1046(6); 29 USC § 661(j); Who qualifies as an employer for purposes of applying § 1910.119(d)(3)(i)(B) & (o)(1); § 1910.119(h); “Contractors’; “Contract employer”; Perez v Jacobs Field Servs of N Am, Inc & Its Successors (OSHD); Competency of the evidence; MI Admin Code, R 792.10125; MCL 24.275; Due process; Distinguishing Al-Maliki v LaGrant & Lamkin v Hamburg Twp Bd of Trs; Michigan Occupational Safety & Health Administration (MIOSHA)

Considering the plain language of MCL 408.1046(6) and § 661(j), the court held that neither the ALJ nor the circuit court erred by applying Perez’s analysis to this case and determining that the cited PSM Standards applied to petitioner. Also, petitioner did not show that the circuit court erred by affirming the portion of the ALJ’s decision ruling that it “could be cited as an employer for violations of PSM Standards other than those in” § 1910.119(h) and that it was an employer for purposes of applying § 1910.119(d)(3)(i)(B) and § 1910.119(o)(1) here. Further, petitioner did not show “that the ALJ failed to apply correct legal principles or misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Finally, there was no due-process violation. Thus, the court affirmed the circuit court’s opinion and order affirming an administrative ruling upholding two citations for violations of § 1910.119 issued against petitioner by respondent-MIOSHA. Petitioner argued that “the cited PSM Standards did not apply to their activities at Woodworth’s facility because it was a contractor—not an employer—and” thus, it could not be cited for violations of the PSM Standards that apply only to employers. The court disagreed. At issue were §§ 1910.119(d)(3)(i)(B) and 1910.119(o)(1). Petitioner asserted that “it should be considered a contractor, not an employer, for purposes of the PSM Standards at issue” based on § 1910.119(h). The ALJ concluded that the language in § “1910.119(h) addressing the responsibilities of employers and contract employers was ambiguous because it was unclear whether or not a contractor could also be considered an employer.” The circuit court held that “the ALJ did not err by concluding that the PSM Standards applied to petitioner.” Petitioner argued that § 1910.119(h) “precludes a finding that it can be an employer for purposes of adhering to other PSM Standards.” It asserted that the plain language “creates an express dichotomy between the responsibilities of ‘the employer’ who operates and controls the process and those contractors ‘performing maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process.’” The court disagreed. The ALJ “explained that Perez rejected ‘the contractor’s attempt to draw a bright-line distinction between an “employer” and “contractor.”’” Applying these considerations, the ALJ held that petitioner was subject to the requirements of § “1910.119(h) and other applicable PSM Standards.” The court found that Perez supported the circuit court’s order and ALJ’s decision.