ASARCO, Inc. (Commission decision, February 17, 1995)

Plain-English summary

The Commission reviewed an administrative law judge's dismissal of civil penalty proceedings against ASARCO, Inc. The judge had dismissed the cases based on an earlier Commission decision concerning single-shift samples used to determine violations of the respirable dust standard for underground coal mines. The Secretary of Labor and ASARCO agreed that the dismissal should be reversed and the cases remanded after the Commission clarified the scope of that earlier decision. The Commission vacated the dismissal and remanded the matters for further proceedings, while denying the Secretary's request to stay the proceedings without prejudice to renewing it before the judge.

Decision snapshot

• Cited standard(s): The release refers to the respirable dust standard for underground coal mines without identifying a section number.
• Outcome: The ALJ's order of dismissal was vacated and the matters were remanded for further proceedings.
• Key point: The Commission vacated the dismissal on the Secretary’s motion, which ASARCO joined, and returned the cases to the judge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006

February 17, 1995

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

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 motion to stay.

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Upon consideration of the Secretary's motion and the opposition filed by ASARCO, we vacate 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

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