<DOC>
[DOCID: f:asarco95.wais]

 
ASARCO, INC.
February 17, 1995
WEST 94-445-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                          February 17, 1995

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
          v.                      : Docket Nos. WEST 94-445-M
                                  :             WEST 94-446-M
ASARCO, INC.                      :
                                  :

                                ORDER

    In this case, the Commission granted a petition filed by the 
Secretary of Labor requesting  review of Administrative  Law Judge
August Cetti's November 21, 1994 Order of Dismissal, in which he 
dismissed civil penalty proceedings against ASARCO, Inc. ("ASARCO")
based on the  Commission's decision in Keystone Coal  Mining Corp., 
16 FMSHRC 6 (January  1994). The Secretary has now  moved to reverse
and remand the judge's decision, based on our decision in ASARCO,
Inc., 17 FMSHRC ___, Docket No. SE 94-362-RM (January 19, 1995), 
in which we explained that Keystone addressed only the procedural
validity  of  single  shift samples  in determining violations of
the respirable dust standard for underground coal mines. Slip op.
at 5. He has also moved  to stay further proceedings in this case 
pending  the outcome on remand in ASARCO, 17 FMSHRC ___. 

    ASARCO has concurred in the Secretary's  motion to reverse and
remand, but opposes his  motionto stay.

    Upon  consideration of the Secretary's motion and the opposition
filed by ASARCO, We acate the  judge's  Order of Dismissal and remand
this  matter  to the  judge For further  appropriate proceedings. The
Secretary's request that  the Commission stay proceedings  on remand
is denied without prejudice to his renewing such a request before the
judge.
   
   
                                  ___________________________________
                                  Mary Lu Jordan, Chairman
                                        
                                  ___________________________________
                                  Joyce A. Doyle, Commissioner                                        
                                        
                                  ___________________________________
                                  Arlene Holen, Commissioner
                                                                           
                                  _________________________________
                                  Marc L. Marks, Commissioner