MIKE SUMPTER, REX HARTZELL, Employed by, Oak Grove Resources, LLC, Petitioners,
SECRETARY OF LABOR, FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondents
Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission. Agency No. SE-2012-306-308.
For Mike Sumpter, REX HARTZELL, employed by, Oak Grove Resources, LLC, Petitioners: Ralph Henry Moore II, Patrick Wayne Dennison, Jackson Kelly, PLLC, Pittsburgh, PA.
For Secretary of Labor, Respondent: Robin Ann Rosenbluth, W. Christian Schumann, U.S. Department of Labor, Office of the Solicitor, Arlington, VA; Thomas Grooms, Office of the Solicitor, USDOL, Nashville, TN; Thomas E. Perez, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC.
For Federal Mine Safety And Health Review Commission, Respondent: Michael A. McCord, Federal Mine Safety & Health Review Commission, Washington, DC; John Thomas Sullivan, Federal Mine Safety and Health Review Commission, Office of General Counsel, Washington, DC.
Before MARTIN, Circuit Judge, and RESTANI,[*] Judge, and HINKLE,[**] District Judge.
MARTIN, Circuit Judge.
In this appeal, we must decide whether the word " corporation" includes limited liability companies (LLCs) for purposes of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the Mine Act). The Mine Act was enacted " to provide more effective means and measures for improving the working conditions and practices in the Nation's coal or other mines in order to prevent death and serious physical harm." 30 U.S.C. § 801(c). To encourage compliance with the Act, § 110(c) provides that " [w]henever a corporate operator violates a mandatory health or safety standard . . . , any . . . agent of such corporation who knowingly authorized, ordered, or carried out such violation . . . shall be subject to the same civil penalties." Mine Act § 110(c), codified at 30 U.S.C. § 820(c) (emphasis added).
Petitioners Mike Sumpter and Rex Hartzell argue that the plain language reference to agents of corporations in § 110(c) does not include agents of an LLC, like themselves. Even if it does, Petitioners claim the administrative law judge's (ALJ) finding holding them personally liable was not supported by substantial evidence. Lastly, they argue that the violation underlying their civil penalties is improperly duplicative of an earlier violation for which the mine was also cited. After careful review, and with the benefit of oral argument, we affirm.
Oak Grove Resources, LLC is a limited liability company registered in Delaware that operates an underground coal mine in Jefferson County, Alabama. During the time relevant to this appeal, Mr. Sumpter was the acting superintendent at the mine and Mr. Hartzell was the general mine foreman. This dispute stems from several violations issued by the Department of Labor's Mine Safety and Health Administration (MSHA) against Oak Grove in December 2009 and January 2010. To fulfill the purpose of the Mine Act, Congress authorized the Secretary of Labor " to develop and promulgate improved mandatory health or safety standards." 30 U.S.C. § 801(g). Because of the dangers of fires and explosions, detailed regulations require mines to develop a ventilation system, and methane and dust control plans that must be approved by the Secretary. Id. § 863(a), (o); see also 30 C.F.R. § 75.300 et seq. (ventilation standards for underground coal mines). Inspectors from the MSHA, acting on behalf of the Secretary, regularly visit mines to assure compliance
with these and other regulations. 30 U.S.C. § 813(a).
In December 2009, several water pumps that Oak Grove used to prevent water accumulation in its ventilation system were not working properly. As a result, high water levels prevented Oak Grove from keeping up with the requirement that a certified person walk through the ventilation system every seven days and take measurements at specific locations to ensure the system was working properly. 30 C.F.R. § 75.364(a)(2)(iii). During an inspection on December 30, MSHA inspector Derrick Busby issued Citation No. 6698645 (the Citation) alleging a violation of that requirement. 30 C.F.R. § 75.364(a)(2)(iii).
When Inspector Busby issued the December 30 Citation, Oak Grove was not mining coal from the affected area of the mine. But Oak Grove began those operations again on January 4, 2010, apparently without notifying the MSHA and before remedying the problem identified in the December 30 Citation. Another MSHA Inspector, Edward Boylen, attempted to walk through the ventilation system on January 5 and 6, but he was also unable to reach the measurement locations specified in the ventilation plan because of water accumulation. He noted the mine books showed measurements had not been taken at eleven different locations for three weeks, instead of the required seven-day interval. Mr. Hartzell and possibly Mr. Sumpter had signed these examination books. When Inspector Boylen met with the mine supervisors, including Mr. Sumpter and Mr. Hartzell, Mr. Sumpter told him they knew they had not checked those eleven locations because they were blocked by water. Inspector Boylen also noticed the pressure differential at the exhaust fan in this part of the mine had increased significantly, which meant a decreased quantity of air passing through the fan and a restriction in air flow. Based on his observations, Inspector Boylen issued Order No. 669830 on January 6, 2010. This Order required Oak Grove to remove workers and stop producing coal from this area of the mine.
After a hearing, an ALJ affirmed the January 6 Order against Oak Grove, as did the Federal Mine Safety and Health Review Commission (the Commission) on appeal. Several months later, the MSHA filed petitions under § 110(c) of the Mine Act, 30 U.S.C. § 820(c), to assess civil penalties against Mr. Sumpter and Mr. Hartzell individually based on the January 6 Order. An ALJ affirmed these petitions and the Commission declined Mr. Sumpter's and Mr. Hartzell's ...