[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