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CANTERBURY COAL COMPANY
May 30, 1997
PENN 97-113-R

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                          May 30, 1997

CANTERBURY COAL COMPANY,        :     CONTEST PROCEEDING
               Contestant       :
                                :
          v.                    :     Docket No. Penn 97-113-R
                                :
SECRETARY OF LABOR,             :     Citation No. 4174654; 3/20/97
MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),        :     Dianne Mine
               Respondent       :     Mine ID 36-05708

                            DECISION

Appearances:  Joseph A. Yuhas, Esq., 1809 Chestnut Ave.,
              Barnesboro, Pennsylvania, for Contestant;
              Theresa C. Timlin, Esq., Office of the Solicitor,
              U.S. Department of Labor, Philadelphia,
              Pennsylvania, for Respondent.

Before:  Judge Melick

     This Contest Proceeding is before me upon the Notice of
Contest filed by Canterbury Coal Company (Canterbury) under
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C.  801 et seq., the "Act," to challenge Citation No.
4174654, issued by the Secretary for one violation of the
standard at 30 C.F.R.  90.102(a).  The citation charges as
follows:

          On August 28, 1996, an employee at the subject mine
     exercised his rights afforded under Title 30, Code of
     Federal Regulations, Part 90.  The employee stayed on the
     same shift rotation while the operator sampled him to
     determine compliance.  When compliance could not be met, the
     miner was transferred to another job, which changed his
     shift rotation which was different before the transfer.

     The cited standard, 30 C.F.R.  90.102(a) provides in
relevant part as follows:

          Whenever a Part 90 miner is transferred in order to
     meet the respirable dust standard in 90.100 (Respirable
     dust standard) . . .  the operator shall transfer the miner
     to an existing position at the same coal mine on the same
     shift or shift rotation on which the miner was employed
     immediately before the transfer.  The operator may transfer
     a Part 90 miner to a different coal mine, a newly-created
     position or a position on a different shift or shift
     rotation if the miner agrees in writing to the transfer.

     It is undisputed that the subject miner, Russel Bollenger,
     was adjudged by the Secretary on August 5, 1996, to be
     eligible to be classified as a "Part 90" miner (Government
     Exhibit
     No. 1).  As explained in a letter from the Secretary's
     representative, Bollenger's  x-rays showed that he had
     "enough coal worker's pneumoconiosis (`black lung') to be
     eligible for the `option to work in a low dust area' of a
     mine" (Government Exhibit No. 1).  As the letter further
     explained, Bollenger had the "right to work at a job in the
     mine where the concentration of dust is not more than 1.0
     milligram per cubic meter of air."  The "Part 90" miner's
     rights are set forth in 30 C.F.R. 90.3(a) as follows:

          Any miner employed at an underground coal mine or at a
     surface work area of an underground coal mine who, in the
     judgment of the Secretary of Health and Human Services, has
     evidence of the development of pneumoconiosis based on a
     chest x-ray, read and classified in the manner prescribed by
     the Secretary of Health and Human Services, or based on
     other medical examinations shall be afforded the option to
     work in an area of mine where the average concentration of
     respirable dust in the mine atmosphere during each shift to
     which that miner is exposed is continuously maintained at or
     below 1.0 milligram per cubic meter of air.  Each of these
     miners shall be notified in writing of eligibility to
     exercise the option.

     The standard at 30 C.F.R. 90.100 sets forth the obligations
of the mine operator upon notification that a Part 90 miner is
employed at its mine.  That standard reads as follows:

          After the twentieth calendar day following receipt of
     notification from MSHA that a Part 90 miner is employed at
     the mine, the operator shall continuously maintain the
     average concentration of respirable dust in the mine
     atmosphere during each shift to which the Part 90 miner in
     the active workings of the mine is exposed at or below 1.0
     milligram per cubic meter of air.  Concentrations shall be
     measured with an approved sampling device and expressed in
     terms of an equivalent concentration determined in
     accordance with 90.206(Approved sampling devices;
     equivalent concentrations).

     The Commission, in Jimmy R. Mullins v. Beth-Elkhorn Coal
Corporation, Local 1468, District 30, United Mine Workers of
America and International Union, United Mine Workers of America,
9 FMSHRC 891, 897 (May 1987), summarized the requirements of Part
90 as follows:

     [t]he Part 90 transfer option encompasses three basic
     rights: (1) to be assigned work in "an area of a mine"
     where the required Part 90 dust concentration levels are
     continuously maintained . . .; (2) in "an existing position"
     at the same mine on the same shift or shift rotation or,
     if the miner agrees in writing, in "a different coal mine,
     a newly-created position or a position on a different shift
     or shift rotation" . . .; and (3) at no less than the
     regular rate of pay earned by the miner immediately before
     exercise of the transfer option . . . It is the duty of the
     operators to effectuate these rights as applicable with
     respect to their Part 90 miners.

     Upon notification of Bollenger's status as a Part 90 miner,
     Canterbury made several efforts to reassign Bollenger to
     positions meeting the requirements of 30 C.F.R. 90.102(a).
     However, following respirable dust sampling, each position
     was found to exceed the "1.0 milligram per cubic meter of
     air" standard.  Canterbury finally transferred Bollenger to
     the position of shuttle car operator on a different shift
     rotation.  Bollenger did not consent to this transfer
     pursuant to 30 C.F.R. 90.102(a) and the instant citation
     was accordingly issued for a violation of that standard.

     The provisions of 30 C.F.R. 90.102(a) are clear and
     unambiguous and Canterbury's transfer of Bollenger to a
     different shift rotation without his consent was in
     violation of that standard.  Canterbury argues that since it
     did not have an "existing position" for Bollinger, in order
     to keep Bollenger on his same shift rotation and at the same
     time not exceed the 1.0 milligram per cubic meter of air
     dust exposure limits it would be necessary to create a new
     job position  - - something that the law does not require.
     Canterbury misreads the requirements of the law.  Its
     ultimate responsibility to a "Part 90" miner is to provide a
     workplace for such a miner in which the average dust
     exposure of 1.0 milligram per cubic meter of air is not
     exceeded.  It can do this by reducing the level of
     respirable dust in the miner's existing position or in a
     number of other ways as set forth in the regulations.
     However, one thing the operator clearly cannot do is
     transfer a miner in Bollinger's situation to a different
     shift rotation without his written consent.

     Under the circumstances the violation is proven as charged,
     Citation No. 4174654 is affirmed and this Contest Proceeding
     is dismissed.

                           Gary Melick
                           Administrative Law Judge
                           703-756-6261

Distribution:

Joseph A. Yuhas, Esq., 1809 Chestnut
Ave., P.O. Box 25, Barnesboro, PA 15714

Theresa C. Timlin, Esq., U.S. Dept. of
Labor, Office of the Solicitor, 14480
Gateway Bldg., 3535 Market Street,
Philadelphia, PA 19104

                           /jf