Secretary of Labor v. Nicholas Contura, LLC

Plain-English summary

James Steven Spencer worked at the Jerry Fork Eagle Mine in West Virginia and had exercised his Part 90 option in May 2016, which lets a coal miner with evidence of pneumoconiosis transfer to a lower-dust job at the same pay. He was moved to a supply motor operator job, then took leave for hernia surgery, and his doctor released him to return to work on July 25, 2016, one day before Nicholas Contura bought the mine out of the Alpha Natural Resources bankruptcy. Instead of returning, Spencer was sent for a breathing test, and after the company forwarded his old chest films to its doctor for an "interpretation," the company declined to employ him. Judge William S. Steele held that Spencer remained a miner rather than a job applicant, because the sale was seamless and the same human resources and safety managers carried over, and that exercising Part 90 rights is protected activity. He found non-frivolous evidence of animus, pointing to the manager's questions about whether Spencer had complicated pneumoconiosis before any test was taken, and to the fact that Spencer was cleared for work before the sale closed and so should never have faced a functional capacity evaluation. The judge ordered Spencer immediately reinstated at his former pay, hours, and benefits, and retained jurisdiction while the Secretary completed the discrimination investigation.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.45; 30 C.F.R. §§ 90.1 and 90.100
• Outcome: The application for temporary reinstatement was granted and the miner was ordered immediately reinstated to his former or an equivalent position.
• Key point: A miner caught in a mine sale is judged by his status when he engaged in protected activity, not by whether the buyer labels him a new applicant, and exercising Part 90 transfer rights is itself protected activity.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

on behalf of J.S.S.,

Complainant,

v.

NICHOLAS CONTURA, LLC,

Respondent.

TEMPORARY REINSTATEMENT PROCEEDING

Docket No. WEVA 2016-615-D

MSHA Case No.: HOPE-CD-2016-05

Mine: Jerry Fork Eagle Mine

Mine ID: 46-08787

DECISION AND ORDER

REINSTATING J.S.S.

Appearances:               Pollyanna
E.F. Hampton, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
VA, Representing the Secretary of Labor     

R. Henry Moore, Esq., Jackson
Kelly PLLC, Pittsburgh, PA, Representing Respondent

Before:             Judge Steele                         

On September 16, 2016, pursuant
to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. §801,
et. seq., and 29 C.F.R. §2700.45,
the Secretary of Labor (“Secretary”) filed an Application for
Temporary Reinstatement of miner James Steven Spencer.[1]
(“Complainant, Spencer, or JSS”) to his former position with Nicholas Contura,
LLC, (“Nicholas
Contura” or “Respondent”) at Jerry Fork Eagle Mine
pending final hearing and disposition of the case.

The application followed a
Discrimination Complaint filed by J.S.S. on August 18, 2016, that alleged, in
effect, that his termination was motivated by his status as a Part 90 miner.[2]
The

Secretary represents that
this Complaint was not frivolously brought and requests an Order directing
Respondent to reinstate J.S.S. to his former position or a comparable position,
within the same commuting area and with the same rate of pay and benefits he
received prior to his discharge.

Respondent filed
a timely motion requesting a hearing regarding this application on September
26, 2016, wherein it summarized its position. A hearing was held in South
Charleston, WV, on October 6, 2016, where the Secretary and Respondent each had
the opportunity to present witnesses and documentary evidence in support of their
positions.[3]

For the
reasons set forth below, I grant the application and order Nicholas Contura LLC
to temporarily reinstate James Steven Spencer.

Discussion of Relevant Law

Section 105(c) of the Mine Act prohibits discrimination
against miners for exercising any protected right under the Mine Act. The
purpose of the protection is to encourage miners “to play
an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to be encouraged
to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their
participation.” S. Rep. No. 181, 95th Cong., 1st
Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 623
(1978).

Congress
created the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period
of unemployment or reduced income pending the resolution of the discrimination
complaint.” S. Rep. No. 181, 95th Cong., 1st Sess.
36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 624-25 (1978).

Temporary
Reinstatement is a preliminary proceeding and narrow in scope. As such, neither
the judge nor the Commission is to resolve conflicts in testimony at this stage
of the case. Sec’y
of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July
1999). The substantial evidence standard applies.[4]
Sec’y
of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425,
2426 (Dec. 1993). A temporary reinstatement hearing is held for the purpose of
determining “whether
the evidence mustered by the miners to date established that their complaints are non-frivolous, not whether
there is sufficient evidence of discrimination to justify permanent
reinstatement.” Jim
Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).

In adopting section 105(c), Congress indicated that a
complaint is not frivolously brought if it “appears
to have merit.” S. Rep. No. 181, 95th Cong.,
1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress’ “appears
to have merit” standard, the Commission and federal
circuit courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not insubstantial.” Sec'y of Labor on behalf of Price v.
Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920
F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that
establishing ‘reasonable cause to believe’ that a violation of the statute has
occurred is a ‘relatively insubstantial’ burden.” Sec’y of Labor on behalf
of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, *3 (Aug. 2012) citing Schaub
v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th Cir.
2001).

In order to establish a prima facie case of
discrimination under section 105(c) of the Act, a complaining miner must
establish (1) that he engaged in protected activity and (2) that there was an
adverse action, which was motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).

In the instant matter, the Secretary and Spencer need not
prove a prima facie case of discrimination with all of the elements
required at the higher evidentiary standard needed for a decision on the
merits. Rather, the same analytical framework is followed within the
“reasonable cause to believe” standard. Thus, there must be “substantial
evidence” of both the applicant’s protected activity and a nexus
between the protected activity and the alleged discrimination. To establish the
nexus, the Commission has identified these indications of discriminatory
intent: (1) hostility or animus toward the protected activity; (2) knowledge of
the protected activity; and (3) coincidence in time between the protected
activity and the adverse action. Sec’y
of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The Commission has
acknowledged that it is often difficult to establish a “motivational nexus between protected activity and the
adverse action that is the subject of the complaint.” Sec’y of Labor on behalf of
Baier v. Durango Gravel, 21 FMSHRC 953,
957 (Sept.1999). The Commission has further considered disparate treatment of
the miner in analyzing the nexus requirement. Secretary of Labor on behalf
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds,
709 F.2d 86 (D.C. Cir. 1983).

The Petition for Temporary Reinstatement

On
August 18, 2016, Spencer executed a Summary of Discriminatory Action, which was
filed with his Discrimination Complaint. In this statement he alleged the
following:

During a company change over
I was not hired back due to being a Part 90 miner. I was the only person
required to take a physical or breathing test.

I would like to be
reinstated to my previous job classification as supply motor operator. I would
like to be reimbursed for all back pay, medical bills for my family and I and
other expense encurred due to the loss of my job. [sic].

Application for Temporary
Reinstatement at Exhibit B, p. 2.

The Secretary also submitted with the Application the September
16, 2016, Declaration of Kelly Acord, a Special Investigator employed by the
Mine Safety and Health Administration (“MSHA”). Acord made the following
findings and conclusions:

2)      As
part of my responsibilities, I investigate claims of discrimination filed by
miners pursuant to Section 105(c) of the Federal Mine Safety and Health Act of
1977 (the “Mine Act”). In this capacity, I have investigated the discrimination
claim filed by J.S.S. (the “Complainant”) on August 18, 2016. My investigation
to date has revealed the following facts:

A.   
On August 18,
2016, J.S.S. filed a complaint alleging discrimination that commenced July 25,
2016 and resulted in his firing on August 15, 2016, after he had exercised his Part
90 option at the mine.

B.    
At all
relevant times hereinafter mentioned, Nicholas Contura, LLC was a “person”
within the meaning of § 105(c) and within the definition of § 3(f) of the Act.
30 U.S.C. § 802(f).

C.    
The
Complainant was employed as a Supply Motor Operator at the mine, and, therefore,
is a "miner" within the meaning of § 3(g) of the Act. 30 U.S.C. § 802(g).

D.   
The
Complainant worked for Alex Energy, Inc. (a subsidiary of Alpha Natural Resources,
Inc.) at the mine for approximately two years until August 2016. He has
approximately 34 years of coal mining experience.

E.    
On May 4,
2016 the Complainant exercised his Part 90 option under the Mine Act.

F.     
By the end of
May, the Complainant was moved from his position as a continuous miner operator
to a less dusty position as a supply motor operator to satisfy the Part 90
requirements. Alex Energy, Inc. started running respirable dust samples on him
as required by Part 90. He was still paid the rate of a continuous miner
operator, which is typically higher than the rate paid to a supply motor
operator.

G.   
A week or two
after moving to the supply motor operator position, the Complainant went on short
term disability related to hernia surgery. The Complainant's personal doctor
cleared him to return to work by July 25, 2016.

H.   
At this time
mine controller Alpha Natural Resources, Inc. was going through bankruptcy
proceedings. By June, it appeared Nicholas Contura, LLC would be purchasing the
mine as the company prepared job offer letters for active miners who were
working at that mine at that time.

I.      
A job offer
letter dated June 20, 2016 was prepared for the Complainant, however it was
never delivered. This letter outlined a process under which all active
employees would be retained when Nicholas Contura, LLC took over operation of
the mine. Under this process, Nicholas Contura, LLC required any inactive
employee on temporary disability to undergo a Functional Capacity Evaluation
(“FCE”) demonstrating the miner's ability to perform essential functions of the
job. Active miners were not required to undergo an FCE.

J.      
At some point
in July, human resources manager Robert Blake asked the Complainant to obtain a
drug test at the training center on mine property. The Complainant's drug test
came back fine.

K.   
On July 25,
2016, the day before the mine sale, Blake and Safety Manager Randy Taylor asked
to meet with J.S.S. At this meeting Blake and Taylor told the Complainant he
needed to take a pulmonary capacity test and warned him he would not be
retained by Nicholas Contura, LLC if a physician determined he had complicated
coal workers pneumoconiosis. The Complainant responded that they knew he had
coal workers pneumoconiosis because he was a Part 90 miner and he accused them
of trying to terminate his employment on this basis.

L.    
At no time
was the Complainant required to undergo a FCE related to his hernia injury.

M.  
On August 4,
the Complainant travelled to see the respiratory specialist designated by Nicholas
Contura, LLC. A therapist administered a breathing test, but no x-rays were
taken and he did not see a doctor.

N.   
Dr. Charles
E. Porterfield issued a letter elated August 12 stating “[Complainant] has
complicated pneumoconiosis on chest x-ray/CT scan and should not be further
exposed to coal dust.” It appears Dr. Porterfield relied on an old chest x-ray
in making his diagnosis as no new x-rays were taken.

O.   
The
Complainant had previously been diagnosed with complicated pneumoconiosis.
According to Dr. Afzal Ahmed, the Complainant's September 30, 2015 chest x-ray
showed small opacities of q/r shape in upper, middle, and lower zones of both
lungs with a profusion of 2/1, indicators of complicated pneumoconiosis. This
diagnosis was the basis for the Complainant's exercise of his Part 90 rights in
May 2016.

P.     
On August 15,
Blake called the Complainant and told him Nicholas Contura, LLC would not be
keeping him on at the mine. The following day, an Alpha Natural Resources, Inc.
human resources manager called and told the Complainant it was his last day
with Alpha and offered him Cobra insurance and an 80-hour severance package.

Q.   
Most of the
officers under the new management remained the same, including human resources
manager Blake and safety manager Taylor. The mine was idled for only one day in
order to prepare for the sale. After the mine sale, all active miners were
retained to continue to work at the mine. Miners retained their seniority and
vacation after the transfer.

3)      There
is reasonable cause to believe that the Complainant was discharged because he
engaged in protected activity when he exercised his Part 90 option under the
Mine Act. J.S.S. suffered an adverse action when he was discharged on August
15, 2016.

4)      Based on my investigation to this
date, I have concluded that there is reasonable cause to believe that the
Complainant was discharged because he engaged in the protected activity of
exercising his Part 90 option. I have concluded that the complaint filed by
Complainant was not frivolous.

Application
for Temporary Reinstatement at Exhibit A, p. 1-5. The Secretary
cited this declaration as a basis for the formal request for temporary
reinstatement. Application for Temporary Reinstatement at 2.

Joint Stipulations:

Prior to hearing, the
parties submitted the following Joint Stipulations:

1)     
This proceeding is subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission and its designated Administrative Law
Judges pursuant to Sections 105 and 113 of the Federal Mine Safety and Health Act
of 1977 (“the Act”).

2)     
Alex Energy, Inc. was an affiliate of Alpha Natural Resources, Inc.

3)     
Alpha Natural Resources, Inc. and 148 related companies, including Alex
Energy, filed a chapter 11 case under Title 11 in the United States Bankruptcy
Court for the Eastern District of Virginia (Richmond Division) on August 3,
2015, Bankr. Case No. 15-33896.

4)     
Alex Energy, Inc. was operator of the Jerry Fork Eagle Mine in Nicholas
County, West Virginia, until July 25, 2016.

5)     
Nicholas Contura began operating the Jerry Fork Eagle Mine on July 26,
2016 and continues to operate this mine.

6)     
Nicholas Contura is an affiliate of Contura Energy.

7)     
Contura Energy was formed and acquired certain assets of Alpha Natural
Resources, Inc. out of the bankruptcy, including those that constituted the
Jerry Fork Eagle Mine.

8)     
The products or operations of the Jerry Fork Eagle Mine enter or affect
commerce, within the meaning and scope of Section 4 of the Act.

9)     
Jerry Fork Eagle Mine is a mine as that term is defined in 30 U.S.C.
802(h).

10) 
Nicholas Contura is an "operator" as defined in Section 3(d)
of the Act at Jerry Fork Eagle Mine.

11) 
Operations of Nicholas Contura at the Jerry Fork Eagle Mine are subject
to the jurisdiction of the Act.

12) 
Nicholas Contura is a "person" within the meaning of § 105(c)
and within the definition of § 3(f) of the Act. 30 U.S.C. 802(f).

13) 
As of July 25, 2016, Complainant was employed as a Supply Motor Operator
at the Jerry Fork Eagle mine, and, therefore, was a "miner" within
the meaning of§ 3(g) of the Act. 30 U.S.C. § 802(g).

14) 
Complainant worked for Alex Energy, Inc. at Jerry Fork Eagle Mine for
approximately two years until August 2016.

15) 
On May 4, 2016 Complainant exercised his Part 90 option under the Mine
Act.

16) 
By the end of May, Complainant was moved from his position as a continuous
miner operator to a position as a supply motor operator to satisfy the Part 90
requirements in part because the respirable dust limit for Part 90 miners would
be reduced to 0.5mg/m3 on August 1, 2016 and such new limit would exceed the
levels of respirable dust in the continuous miner position.

17) 
Complainant was off work from June 6, 2016 to July 25, 2016 for
nonwork-related hernia surgery.

18) 
After moving into the supply motor operator position, Complainant was
still paid his same rate of $32.78 per hour.

19) 
Contura Energy prepared a job offer letter dated June 20, 2016 addressed
to Complainant, but it was never delivered because he was absent on short term
disability while having hernia surgery. Such offer had certain contingencies.

20) 
Immediately prior to July 25, 2016, Robert Blake worked as Brooks Run
North Human Resources Manager for Alex Energy.

21) 
As of July 26, 2016, Robert Blake became Human Resources Manager for
Nicholas Contura, LLC.

22) 
Immediately prior to July 25, 2016, Randy Taylor worked as Safety Manager
for Alex Energy.

23) 
As of July 26, 2016, Randy Taylor became Safety Manager for Nicholas
Contura, LLC.

24) 
The drug test taken by Complainant at the Nicholas Contura Training
Center on July 19, 2016 was negative for the presence of drugs.

25) 
On September 29, 2016 Complainant signed an Authorization to Disclose
Health Information form authorizing the Department of Labor to disclose and use
Complainant's health information for the purpose of litigation or potential
litigation.

Resp. Prehearing Statement, 2-5.[5]

Summary of Testimony

James Steven
Spencer was most recently employed as a supply motor operator at Alex Energy’s
Jerry Fork Eagle Mine. Tr. 19. He has worked continuously in mining since 1982,
first running a cut machine and then became a continuous miner operator. Tr.

20. He worked at Jerry Fork Eagle Mine for the two years prior to the hearing,
    with all but the last two weeks as a continuous miner operator. Tr. 19. Prior
    to working at the Jerry Fork Eagle Mine, Spencer had worked for Massey and
    Alpha Natural Resources since 2001. Tr. 19-20. He has never been formally or
    informally disciplined and has never been late to work. Tr. 20-21.

Nicholas Contura
LLC is a new company that purchased certain mine assets from Alpha Natural
Resources’ Alex Energy. Tr. 82. The sale from Alpha to Nicholas Contura was
scheduled to occur on July 25, 2016, but it was carried over to July 26 due to
various complications. Tr. 85. Most of the miners and management working at the
mine were transferred to the new company after the bankruptcy. Tr. 60-62. The
miners who were transferred over retained their seniority. Tr. 62. The mine was
shut down for one day, on July 25, to facilitate the purchase. Tr. 62.

On June 20, 2016,
offer letters were prepared to transfer employees from Alex Energy to Nicholas
Contura. Tr. 83-84. An offer letter was prepared but never sent to Spencer. Tr.
47, 83; GX-3. In the section labeled “proposed effective date,” it states, “if
you are away from work due to disability at the time of the closing on the
company’s purchase of Alpha assets, then your employment will also be
contingent upon you presenting a medical release to return to work, passing a
functional capacity evaluation (FCE), demonstrating your ability to perform the
essential functions of the job, with or without reasonable accommodation.” Tr.
48; GX-3. At hearing, Spencer testified that he understood the purpose of the
FCE as testing one’s ability to perform their job. Tr. 49. Though the offer
letter had a provision for miners who were out of work due to disability, it
was not sent to those miners. Tr. 91.

Spencer is a
Part 90 miner, which means that he must be provided a job that has less dust
while maintaining the same rate of pay.[6]
Tr. 21. He was diagnosed with complicated pneumoconiosis,[7] which is also known as
black lung, in September 2015 by Dr. Afzal Ahmed.[8] Tr. 21-22. Spencer filed
for black lung benefits through the State of West Virginia in September 2015,
but was not awarded any benefits because he passed his breathing test. Tr.
22-23. He has not filed for federal black lung benefits. Tr. 23.

Spencer told
Alex Energy that he filed for state black lung benefits and that he was a Part
90 miner. Tr. 23. On December 10, 2015, Spencer signed a release for
HealthSmart to release information regarding his occupational disease to his
employer for “purposes related to [his] occupational disease claim only.” Tr.
41-43; GX-2. Spencer understood this to mean that his medical information could
only be released for purposes of his black lung benefits claim. Tr. 43-44.

After becoming a
Part 90 miner, Spencer was transferred to a supply motor operator position,
which has less dust exposure than his previous position as a continuous miner
operator. Tr. 24. The company transferred Spencer because the dust limit for
Part 90 miners was scheduled to be reduced from 1 to .5 milligrams per cubic
meter on August 1, 2016. Tr. 53. When Spencer was being sampled for dust before
his medical leave, the results were less than half a milligram, but they showed
some level of dust exposure. Tr. 54. Spencer agreed that any job at the mine
would have some exposure to dust. Tr. 54. Spencer worked as a motorman for two
weeks before he took medical leave for hernia surgery.[9] Tr. 25. Though the
motorman position typically pays less than the continuous miner position, under
Part 90 his pay remained the same. Tr. 25.

Prior to
Spencer’s hernia surgery, he had taken medical leave for open heart surgery,
lower lumbar surgery, knee surgery, and to have a cyst removed from his back.
Tr. 26-27. In previous instances, he always returned to work following the
surgeries by providing a work release from his doctor. Tr. 27, 64-65. He was
never previously required to take a breathing test before returning to work.
Tr. 27.

While Spencer
was on short-term disability leave, he heard from others at the mine that job
offer sheets were being distributed and had to be submitted by July 15, 2016.
Tr. 28. Spencer reached out to Alex Energy Mine Superintendent Dave Tharp and
Human Resources Manager Robert Blake.[10]
Tr. 28. They told Spencer not to worry about submitting paperwork, and “we’ll
take care of it when you come back. We’ll get you fixed up when you come back.”
Tr. 29. On July 18, Spencer followed up with Tharp and Blake. Tr. 29. He told
Tharp that he had an appointment with his personal doctor, Dr. Bandy Mullins,
on July 21 and anticipated being released to come back to work. Tr. 29. Tharp
told Spencer to call Blake to tell him, and Spencer did so. Tr. 29. Blake told
Spencer that he had to have a drug test, and invited Spencer to get it
performed at the Britten building on mine property. Tr. 30. Spencer took the
drug test on July 19, and passed. Tr. 30, 32.

While on mine
property, Spencer ran into Alex Energy safety director Bill Kell, as well as
Robert Blake. Tr. 31. Spencer was in the middle of running his preventive dust
measures for the motorman job, and Kell asked him if he would be able to return
to work on Monday, July 25.[11]
Tr. 31-32. Spencer responded that he believed he would be released by then. Tr.

31. Kell told Spencer that he would get Spencer’s pumps ready for Monday, and
    said to tell Blake that he would be returning to work then. Tr. 34. Spencer
    called Blake and told him he would return on Monday, and Blake responded,
    “Okay, I’ll see you Monday,” but then before he hung up, said, “Wait, wait, let
    me run this by higher-ups and make sure all is in order.” Tr. 34.

At Spencer’s
July 21 doctor’s appointment, Spencer’s personal doctor, Dr. Bandy Mullins,
gave Spencer a release to return to work, starting July 25, 2016. Tr. 25-26,
33; GX-1. Spencer testified that after he was released on July 25, he was able
to perform the duties of a motorman. Tr. 49.

Blake called
Spencer the next morning, Friday July 22, at 9:00 a.m. and told him that he
would have to go to a physical. Tr. 35. Spencer believed that the physical
would be to test his ability to lift because of his hernia surgery. Tr. 35.

On July 25, Blake
called Spencer and told him that he needed to come to the main office at the
mine because Kingston Mine safety director Randy Taylor and he needed to talk
to Spencer.[12]
Tr. 36. At the meeting, Taylor and Blake told Spencer that in order to return
to work he would have to have a breathing test. Tr. 36-37. Blake said, “You
can’t pass that, can you?” Tr. 37. Spencer responded that he had always
previously performed well on his breathing test, and asked if there would be
additional X-rays. Tr. 37. Blake said that there likely would be, and Spencer
responded that an X-ray would show pneumoconiosis. Tr. 37. Blake responded,
“You’re not complicated, are you?” Blake was aggravated at this question
because they were aware that he had complicated pneumoconiosis due to his
status as a Part 90 miner. Tr. 37. He believed that the comment was made
because he was a Part 90 miner. Tr. 38.

At hearing,
Spencer testified that though people don’t say anything directly about Part 90
miners, “there is a shadow over Part 90 miners.” Tr. 38. Because they require
less dust exposure, such miners are often treated as a nuisance. Tr. 38.
Spencer felt that they were trying to get rid of him because he was a Part 90
miner. Tr. 38. Blake told Spencer that if the test came back showing that he
had complicated pneumoconiosis, he would not be offered a position at Nicholas
Contura. Tr. 38. Spencer described the atmosphere at the meeting as “tense”
because his experience with Blake led him to believe that “something definitely
was…up.” Tr. 39.

After the
meeting, Taylor told Spencer, “Hey, I hope you go down there and take your test
and everything comes back and you’re back down there at Jerry Fork on a motor.”
Tr. 39. Spencer believed that this meant that if he passed the breathing test,
he could come back to work. Tr. 39.

The company
directed Spencer to see Dr. Charles Porterfield, and they paid for the
appointment. Tr. 40. Spencer went to Dr. Porterfield’s office in Beckley, West
Virginia, for his FCE and pulmonary capacity test. Tr. 39. Spencer did not see
a doctor during this visit, or have an X-ray taken. Tr. 40. He did not bring
any medical records or his black lung benefits paperwork to the visit. Tr.
40-41. Instead, he saw a respiratory therapist named Teresa Hughes, who performed
the breathing test.[13] Tr. 40. Hughes told
Spencer that he did all right on his breathing test. Tr. 40.

Dr. Porterfield
faxed a letter to Nicholas Contura LLC on August 10, 2016.[14] GX-5. It states that the
pulmonary function studies demonstrates a slight reduction in FVC and FEV1 with
normal ratio. Tr. 69. It further states that “Volume studies demonstrate a
slight increase in the RV/TLC ratio. Diffusion is normal.” GX-5. Special
Investigator Kelly Acord testified that he understood this diagnosis to be
positive, meaning that Spencer passed his breathing test.[15] Tr. 69-70.

Blake received
the August 10 letter from Dr. Porterfield and sent it to management because
there was no interpretation in it. Tr. 87-88. Management told Blake to contact
Dr. Porterfield’s office and “ask for an interpretation,” which Blake did. Tr.

88. Blake also provided Dr. Porterfield with certain medical records for
    Spencer. Tr. 88. Blake could not recall specifically which records he sent, but
    he believed that he at least sent Dr. Ahmed’s diagnosis. Tr. 93. In response,
    Dr. Porterfield sent a second letter on August 15, 2016, which reads in full,
    “Mr. James S Spencer has complicated pneumoconiosis on chest x-ray/CT scan and
    should not be further exposed to coal dust. If you have any further questions
    feel free to call or write.”[16]
    Tr. 88; GX-5. Blake reported this to management, and testified that as a result
    there was a decision not to offer Spencer a job. Tr. 88.

Acord
interviewed Dr. Porterfield, and Porterfield confirmed that he did not examine
Spencer. Tr. 70. Instead, his technician, Teresa Hughes, examined him. Tr. 70.
Porterfield said that based on that examination he felt that Spencer could
function as a coal miner. Tr. 70. Porterfield said that his second letter was
based primarily on the X-ray and CT scan that he received from Blake. Tr. 70.
Dr. Porterfield told Acord that he could not recall why the two letters were
sent five days apart. Tr. 75.

On August 12,
Tharp told Spencer that Nicholas Contura might not have to take anyone back who
was on short-term disability. Tr. 44. On or about August 15, Spencer called
Blake to find out the results of his breathing test, and Blake said he would
check and get back to him. Tr. 45. Blake called Spencer back and told him that
due to Dr. Porterfield’s findings they did not have a position for him at
Nicholas Contura. Tr. 45. The following day, Spencer spoke to Alpha Natural
Resources human resources director Kyle Bane, and Bane told him that it was the
last day of his insurance with Alpha and offered him a two-week severance
package and COBRA insurance. Tr. 45. Bane further told Spencer that he believed
it was wrong that he was being fired from the mine. Tr. 46.

Spencer believes
that he was discriminated against because he was a Part 90 miner. 49-50.
Spencer was aware of one other Part 90 miner at the mine, and Spencer believes
that he is currently working for Nicholas Contura. Tr. 51-52. The other Part 90
miner was not on short-term disability, so the company did not have the opportunity
to question him about his status or require him to take a functional capacity
evaluation. Tr. 57-58, 73. Acord was told that there was one miner who was on
workers’ compensation for a foot injury that had to take some tests before
returning to work. Tr. 71, 84. This miner was sent to Dr. Orr, who is a general
practitioner, and only had to perform basic tests involving his leg movement.
Tr. 72. He was then sent to Dr. Porterfield for a breathing test and passed.
Tr. 72.

Findings and
conclusions

The Secretary
argues that Spencer engaged in protected activity when he exercised his Part 90
rights, and that the Respondent discriminated against him by firing him for
exercising those rights.

The Respondent argues that its decision not to
hire Spencer was unrelated to his status as a Part 90 miner, but rather had
everything to do with Dr. Porterfield’s letter. Because this letter stated that
Spencer should not be exposed to any coal dust, and there are no jobs at the
mine that meet such restrictions, Spencer was not offered a position. Further,
the Respondent argues in its prehearing submissions that Spencer was not
“fired,” but rather not “hired,” indicating that he was not a miner, but rather
an applicant who is not entitled to temporary reinstatement under the Act.[17]

Spencer was a Miner Rather than an Applicant
for Employment

Section 105(c)(2) of the Mine Act provides, in
relevant part:

Any miner or applicant for
employment or representative of miners who believes that he has been
discharged, interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging such discrimination…. [I]f
the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on
the complaint…. [Emphases added.]

30 U.S.C. §815(c)(2). The Commission has interpreted the
language of this provision as limited to miners, rather than applicants for
employment.[18] Sec’y of Labor, MSHA,
on behalf of Piper v. KenAmerican Resources, Inc., 35 FMSHRC 1969, 1971-72
(July 2013). However, multiple Commission decisions have not looked narrowly at
a Complainant’s status at the time of the adverse employment action, but rather
at his status when he engaged in protected activity or when discriminatory
actions were taken against him. See Piper v. KenAmerican, 35 FMSHRC 1969
(July 2013), Sec’y on behalf of Pappas v. CalPortland Co., 38 FMSHRC 137
(Feb. 2016).

In Piper, 35 FMSHRC 1969, the Complainant
filed a discrimination complaint as a result of his inclusion in a reduction in
force, alleging that it was due to his making a prior safety complaint. The
Secretary initially filed an application for temporary reinstatement, but
several weeks later filed a motion to dismiss the application after determining
that the facts disclosed during the investigation did not support a violation
of the Act. However, in the interim, the company began recalling miners, and
did not include Piper as one of the recalled miners. As a result, he filed a
second discrimination complaint, alleging that he was being discriminated
against because he filed the initial discrimination complaint. The Commission
affirmed the ALJ’s finding that the Complainant was at all times a “miner,”
rather than an applicant for employment because the “genesis” of the complaint
occurred while he was working as a miner. 38 FMSHRC at 1972.

Similarly, in Pappas, 38 FMSHRC 137, the
Complainant engaged in protected activity, made a discrimination complaint, and
was reinstated as part of a settlement when the mine was owned by Martin
Marietta. However, when CalPortland began taking steps to purchase the mine it
contacted Martin Marietta’s human resources manager for advice on hiring
decisions. The ALJ concluded that the Complainant, who was not rehired by
CalPortland, was a “miner” when he applied for the job, stating:

Pappas was no stranger off the
street applying for a position at the Oro Grande cement plant but had an
extensive employment history at the mine. Pappas's discrimination complaint
relates back to decisions made while he was still employed at the mine ….
CalPortland's structured termination and application process for the Oro Grande
workforce does not materially alter Pappas's status as a miner eligible for
temporary reinstatement under section 105(c)(2) of the Mine Act.

38 FMSHRC at 140 (quoting ALJ decision). The Commission
affirmed the ALJ’s findings and noted that “the courts have taken a realistic
view of these transactions, and acknowledged that employees caught up in these
corporate changes nevertheless may be protected.” Id. at 143. It is further
noted that the transition from the asset seller to the purchaser “was almost
seamless. Most of the CalPortland employees were working at the same mine, and
the same jobs they held when Martin Marietta owned the assets, and the human
relations director remained the same.” Id.

The facts as presented at hearing in the instant
case are even more compelling in finding that Spencer was a “miner.” Spencer exercised
his Part 90 miner rights with Alex Energy on May 4, 2016, prior to the purchase
by Nicholas Contura. Tr. 23; Stip. ¶15. As a result, Spencer was moved from his
position as a continuous miner operator to a position as a supply motor
operator. Stip. ¶16. Spencer then went on short-term disability leave from June
6, 2016, to July 25, 2016, for hernia surgery. Stip. ¶17. On July 26, 2016,
Nicholas Contura completed its purchase of the Jerry Fork Eagle Mine and began
operating it. Tr. 85; Stip. ¶5. Much of the personnel from Alex Energy,
including human resources personnel and miners, continued their positions at
the mine under Nicholas Contura, retaining their job titles and seniority. Tr.
60-62; Stip. ¶¶ 20-23. The decisions to make Spencer take a breathing test, and
then not offer him employment at Nicholas Contura, was made in significant part
by Blake and other human resources personnel that continued from Alex Energy.
Tr. 31-40, 44-46. Further, the transfer of assets and personnel was so seamless
that the mine was only shut down for one day to facilitate the purchase. Tr.
62.

According to these circumstances, Spencer
remained at all times a miner. He had worked at the Jerry Fork Eagle Mine for
two years. Tr. 19. Spencer was released to return to work on July 25, 2016, and
should have been afforded the opportunity to do so. Instead, he was required to
remain off work until such time as the mine purchase was complete, and then not
offered employment with the new company.

Spencer
Engaged in Protected Activity and Suffered an Adverse Employment Action

The Complainant
engaged in protected activity when he exercised his Part 90 rights under the
Mine Act. Part 90 provides coal miners who have evidence of the development of
pneumoconiosis the option to work in an area of the mine where the average
concentration of repirable dust in the mine atmosphere during each shift is
continuously maintained at or below .5 milligrams per cubic meter of air. 30
C.F.R. §§ 90.1, 90.100. Spencer exercised his Part 90 rights on May 4, 2016.
Stip. ¶15. Part 90 was promulgated pursuant to Mine Act section 101(a), 45
Fed.Reg. 80,760 (1980), and Section 105(c)(1) lists as protected when “such
miner, representative of miners or applicant for employment is the subject of
medical evaluations and potential transfer under a standard published pursuant
to section 101.” 30 U.S.C. §815(c)(1). Therefore, the exercise of these rights
is clearly protected activity under Section 105(c)(1) of the Act.

Further, Spencer
suffered an adverse employment action when he was not offered continued
employment at the mine.

A
Nexus Existed Between the Protected Activity and the Adverse Employment Action

As discussed
supra, to obtain a temporary reinstatement a miner must raise a
non-frivolous claim that he engaged in protected activity with a
connection, or nexus, to an adverse employment action.

Having concluded that Spencer engaged in protected
activities and suffered an adverse employment action, the examination now turns
to whether that activity has a connection, or nexus, to the subsequent adverse
action. The Commission recognizes that direct proof of discriminatory intent is
often not available and that the nexus between protected activity and the
alleged discrimination must often be drawn by inference from circumstantial
evidence rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC
at 2510. The Commission has identified several circumstantial indicia of
discriminatory intent, including: (1) hostility or animus toward the protected
activity; (2) knowledge of the protected activity; (3) coincidence in time
between the protected activity and the adverse action; and (4) disparate
treatment of the complainant. See, e.g., CAM Mining,
LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp., 3
FMSHRC at 2510.

Knowledge of the protected activity

According to
the Commission, “the Secretary need not prove that the operator has knowledge
of the complainant’s activity in a temporary reinstatement proceeding, only
that there is a non-frivolous issue as to knowledge.” CAM Mining, LLC,
31 FMSHRC at 1090 citing Chicopee Coal Co., 21 FMSHRC at 719. In
fact, evidence is sufficient to support a finding of knowledge if an operator
erroneously suspects a miner made safety complaints, even if no complaint was
made. See Moses v. Whitley, 4 FMSHRC at 1478.

In the
instant matter there is sufficient evidence of knowledge of the various
protected activities to meet the evidentiary threshold. The nature of
exercising one’s Part 90 rights requires the miner to tell the company that he
is exercising those rights. In the instant case, Spencer told personnel at Alex
Energy that he filed for state black lung benefits and that he was a Part 90
miner. Tr. 23. Various Alex Energy personnel, including human resources manager
Blake and safety manager Taylor, stayed on at Nicholas Contura. In various
discussions and meetings with Spencer, these individuals made it clear that
they knew of Spencer’s status as a Part 90 miner. Therefore, there is no
question that the operator had knowledge of Spencer’s protected activity.

Coincidence in time between the protected activity and the
adverse action

The
Commission has accepted substantial gaps between the last protected activity
and the adverse employment action. See e.g. CAM Mining, LLC, 31
FMSHRC at 1090 (three weeks) and Sec’y
of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan.
1999) (a 16-month gap existed between the miners’
contact with MSHA and the operator’s
failure to recall miners from a lay-off; however, only one month separated MSHA’s issuance of a penalty
resulting from the miners’
notification of a violation and that recall failure). The Commission has stated
“We ‘appl[y] no hard and fast criteria in determining coincidence in time
between protected activity and subsequent adverse action when assessing an illegal
motive. Surrounding factors and circumstances may influence the effect to be
given to such coincidence in time.’” All American Asphalt, 21 FMSHRC 34 at
47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991).

In the instant
matter, Spencer was only at his Part 90 job transfer for two weeks before he
left on short-term disability leave. Another seven weeks elapsed between the
beginning of Spencer’s June 4 short-term disability leave and his July 25
release to return to work. As a result, I find that the time span between the
protected activities and the adverse action is sufficient to establish a nexus.

Hostility or animus towards the protected activity

The
Commission has held, “[h]ostility towards protected activity—sometimes referred
to as ‘animus'—is another circumstantial factor pointing to discriminatory
motivation. The more such animus is specifically directed towards the alleged
discriminatee's protected activity, the more probative weight it carries.” Secretary
of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508,
2511 (Nov. 1981) (citations omitted).

In the
instant case, there are a host of actions that could constitute animus towards Spencer’s
protected activities. In the July 25 meeting Blake evinced a hostile view
towards employees who had been diagnosed with pneumoconiosis. Though Blake was
aware of Spencer’s condition, he insisted on asking him about his
pneumoconiosis, “you’re not complicated, are you?” Tr. 37. Blake then told
Spencer that if the test shows that he had complicated pneumoconiosis he would
not be offered a position at Nicholas Contura. Tr. 38. These statements were
made prior to Spencer visiting Dr. Porterfield’s office, and therefore contradict
the Respondent’s argument that the only reason it did not offer Spencer his
position at the mine was because of Dr. Porterfield’s second letter.[19]

In
addition to these statements, the operator’s requirement that Spencer visit their
doctor smacks of animus towards Spencer’s status as a Part 90 miner. Nicholas
Contura’s policy of requiring employees who are out on disability at the time
of the closing to receive an evaluation before returning to work is a
reasonable means of testing whether the employee has fully recovered from the
injury or illness that required him to take leave before returning to work.
However, in this instance, Spencer was cleared by his doctor to return to work
on July 25, which is one day prior to the closing. Therefore, he should have
never been required to pass an FCE. Further, even if he had been required to
pass an FCE, it should have been limited to matters related to his hernia
surgery. Instead, the only examination Spencer received was to test his
breathing. Tr. 40.

Following
what appears to be Spencer’s passing his breathing test, as memorialized in Dr.
Porterfield’s August 10 letter, the operator sent Porterfield Spencer’s medical
records and asked for “an interpretation.”[20] Tr. 88.
Based on a review of these medical records and whatever was requested of Dr.
Porterfield, he issued a second letter, which in no way appears to be “an
interpretation” of the first letter. GX-5. The first letter relates entirely to
Spencer’s breathing test in somewhat positive terms, whereas the second letter relates
to a chest x-ray/CT scan that the company provided to the doctor. Dr. Ahmed
took the scans in September 2015 and interpreted them to determine that Spencer
had complicated pneumoconiosis. GX-4. However, he never stated that Spencer
could not be exposed to any level of coal dust. But Dr. Porterfield, who never
met Spencer or took any examinations or scans of his chest, interpreted Dr.
Ahmed’s scan to draft a single sentence diagnosis that stated that Spencer
“should not be further exposed to coal dust.” GX-5. Every step in this course
of events evinces animus, and combined shows an arguable coordinated attempt to
get rid of a Part 90 miner.[21]

Disparate Treatment

“Typical forms of disparate
treatment are encountered where employees guilty of the same, or more serious,
offenses than the alleged discriminatee escape the disciplinary fate which
befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2512 (Nov. 1981). The Commission has previously held
that evidence of disparate treatment
is not necessary to prove a prima facie claim of discrimination when the
other indicia of discriminatory intent are present. Id. at 2510-2513.

In the instant matter, the
Respondent argued that one other Part 90 miner was retained at Nicholas
Contura, as well as one miner who was on disability for a foot injury. Tr.
51-52, 71, 84. These miners are not similarly situated to Spencer, as neither
was both a Part 90 miner and on short-term disability.

Conclusion

In concluding that Spencer’s complaint herein was not
frivolously brought, I find that there is reason to believe that Spencer
engaged in a variety of protected activity. I further conclude that the
Secretary has met its burden in showing that there was a nexus between Spencer’s
protected activities and the operator’s declining to offer him his position at
the mine.

ORDER

For
the reasons set forth above, it is ORDERED that Complainant James Steven
Spencer be immediately reinstated by Respondent to his former position, or the
equivalent, at the same rate of pay, hours worked, and with all other benefits
he was receiving at the time of his discharge, effective the date of this
decision.

The
court retains jurisdiction over this temporary reinstatement proceeding. 29
C.F.R. § 2700.45(e)(4). The Secretary shall complete the investigation of the
underlying discrimination complaint as soon as possible. Immediately
upon completion of the investigation, the Secretary shall notify counsel for
Respondent and this court, in writing, whether a violation of Section 105(c) of
the Mine Act has occurred. Id.

/s/
William S. Steele

William
S. Steele

Administrative
Law Judge

Distribution (Via E-mail and Certified Mail):

Pollyanna E.F. Hampton, Esq., U.S. Department of Labor, 201
12th Street South, Suite 401, Arlington, VA 22202-5450, [email protected]

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway
Center, 401 Liberty Ave., Suite 1500, Pittsburgh, PA 15222, [email protected]

[1] In order to preserve the Complainant’s privacy
regarding health and medical status pursuant to the Health Insurance
Portability and Accountability Act of 1996, the miner was referred to by his
initials in the pleadings. However, prior to hearing, the Complainant signed an
Authorization to Disclose Health Information form authorizing the Department of
Labor to disclose and use Complainant's health information for the purpose of
litigation or potential litigation. Joint Stipulations, ¶25 (“Stip.”).

[2] 30 C.F.R. Part 90 contains the mandatory health
standards for coal miners who have evidence of the development of
pneumoconiosis.

[3] Under Commission Rule 45, a Temporary Reinstatement
hearing must be held within 10 calendar days of an operator’s request. 29
C.F.R. §2700.45(c).

[4] “Substantial evidence” means “such
relevant evidence as a reliable mind might accept as adequate to support [the
judge’s] conclusion.” Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

[5] Hereinafter, the transcript of the proceeding shall
be referred to as “Tr.” The Secretary’s exhibits shall be referred to as “GX”
followed by the number. The Respondent’s exhibits shall be referred to as “RX”
followed by the number.

[6] Part 90 “establishes the option of miners who are
employed at coal mines and who have evidence of the development of
pneumoconiosis to work in an area of a mine where the average concentration of
respirable dust in the mine atmosphere during each shift is continuously
maintained at or below the applicable standard as specified in § 90.100.” 30
C.F.R. § 90.1.

[7] Complicated pneumoconiosis occurs when a pattern of
dust fills one’s lungs and stays there. Tr. 22.

[8] Dr. Ahmed is a B Reader, which is a special class
of reader denominated by the government for reading black lung X-rays. Tr. 51.

[9] Though Spencer believed that his hernia was likely
work-related, he did not file a workers’ compensation claim. Tr. 25.

[10] Nicholas Contura human resources manager Robert
Blake testified on behalf of the Respondent. Tr. 81-82. Prior to working for
Nicholas Contura, Blake worked for Alex Energy and Alpha Natural Resources at
the Jerry Fork Mine and Power Mountain Prep Plant in the same capacity. Tr. 82.

[11] Preventive dust measures are used to check dust
levels due to Spencer being a Part 90 miner. Tr. 32.

[12] Nicholas Contura safety manager Randy Taylor
testified at hearing on behalf of Respondent. Tr. 94. Prior to working for
Nicholas Contura, Taylor was the safety manager for Kingston Mining, which was
a subsidiary of Alpha. Tr. 94.

[13]
No evidence was presented as to the qualifications of Teresa Hughes.

[14] The letter is not dated, but has a facsimile
transmission mark that indicates it was sent on August 10, 2016.

[15] District 4 MSHA Special Investigator Kelly Acord
was the primary investigator on Spencer’s case, while Perry Brown also worked
as a special investigator on the case. Tr. 70. Kelly Acord testified for the
Secretary at hearing. Tr. 58. He has been employed with MSHA since March 2005,
starting as a general inspector for two and a half years before moving to the
special investigation department. Tr. 59.

[16] The letter is dated August 12, 2016, but the
facsimile transmission mark indicates that it was sent on August 15, 2016.

[17]
Though the parties appear to stipulate that, as of July 25, 2016, Spencer was a
“miner” within the meaning of the Act, the Respondent raised this issue in a
pre-hearing pleading, so this issue will be addressed. Stip. ¶13.

[18]
The term “miner” is defined in section 3(g) of the Act, 30 U.S.C. § 802(g), as
“any individual working in a coal or other mine.”

[19]
It should further be noted that no evidence was presented at hearing as to the
qualifications of Dr. Porterfield—who according to his letterhead is a Doctor
of Osteopathic Medicine and a Fellow of the American Academy of Sleep
Medicine—in reading and interpreting Spencer’s x-ray or CT scan.

[20]
Based on the evidence presented at hearing, there are serious questions as to
whether the operator was permitted to share Spencer’s medical records with Dr.
Porterfield. Spencer signed a release with HealthSmart to release his medical
records to his employer for “purposes related to [his] occupational disease
claim only.” Tr. 41-43; GX-2. He did not release the operator to share those
records in any way they chose. Further, it is distressing that at hearing Blake
could not even recall which medical records he sent to Dr. Porterfield. Tr. 93.

[21]
Indeed, Dr. Porterfield’s cursory conclusion that a miner with complicated
pneumoconiosis should not be exposed to any coal dust essentially nullifies
Part 90 for such miners.