.
SAN BENITO AGGREGATES, INC.
January 24, 2001
WEST 2000-155-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3867

                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030

                        January 24, 2001


SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No. WEST 2000-155-M
               Petitioner       : A. C. No. 04-00111-005527
                                :
                                : Docket No. WEST 2000-156-M
                                : A. C. No. 04-00111-05528
                                :
          v.                    : Docket No. WEST 2000-157-M
                                : A.C. No. 04-00111-05529
                                :
                                : Docket No. WEST 2000-158-M
                                : A.C. No. 04-00111-05531
                                :
                                : Docket No. WEST 2000-159-M
                                : A.C. No. 04-00111-05532
                                :
                                : Docket No. WEST 2000-160-M
SAN BENITO AGGREGATES, INC.,    : A.C. No. 04-00111-05533
               Respondent       :
                                : Mine: San Benito Aggregates


                 ORDER DENYING REQUEST TO REOPEN
                        ORDER OF DISMISSAL

     This case is before me pursuant to order of the Commission
dated May 11, 2000.

     On February 7, 2000, the operator filed a request to reopen
the above-captioned penalty assessments which had become final
orders of the Commission in accordance with section 105(a) of the
Mine Act,  30 U.S.C. � 815(a).

     The Secretary opposed the request, stating that the operator
had failed to establish that there was a potentially meritorious
claim, which, she argued, is a prerequisite for relief under Fed.
R. Civ. P. Rule 60(b), and that the operator did not establish
conduct amounting to "excusable neglect" pursuant to Rule 60(b).
Rule 60(b) states in pertinent part: "On motion and upon such
terms as are just, the court may relieve a party or a party's
legal representative from a final judgement, order, or proceeding
for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect."

     A majority of the Commission remanded these matters for a
determination of whether the operator has met the criteria in
Rule 60(b).[1]  The Commission stated that it appeared the
operator had offered an explanation for its failure to timely
file hearing requests but had not attached sufficiently reliable
documents to substantiate its claim.  The Commission also noted
that the Secretary had alleged facts in addition to those raised
by the operator.

     On June 29, 2000, I issued an order directing the operator
to submit information to my office, including reliable
documentation, detailing why its failure to file on time meets
the criteria outlined in Rule 60(b) and to show cause why these
cases should be reopened.

     The June 29 order was sent by certified mail return receipt
requested to the operator, however, no return receipt was
received by the Commission.  On August 7, 2000, my law clerk
contacted the operator by telephone inquiring whether the
operator had received the order.  My law clerk spoke with David
Grimsley who stated that he did not have the order and that once
he received the order he would call and advise how long it would
take him to respond.  The June 29 order was faxed to the operator
on August 7.

     Having not received a response after faxing the June 29
order to the operator, on November 30, 2000, an order to show
cause was issued directing the operator to submit the requested
information.  On January 16, 2000, the operator filed a response.
The operator states that it recognizes it has had problems in the
past which led to the current citations and fines.  The operator
identifies the steps it has taken to try and correct these
problems including hiring a retired MSHA inspector.  Finally, the
operator alleges that the penalties would place a heavy financial
burden on its business.

     The operator has failed to comply with the orders in these
cases.  The June 29 and November 30 orders direct the operator to
submit information, including reliable documentation, detailing
why its failure to file on time meets the criteria in Rule 60(b).
The operator has offered no information regarding its failure to
timely contest these matters. There are no statements of why the
contests were late or reasons why based on Rule 60(b) the matters
should be reopened, let alone any documentation supporting such
explanations.  Rather, the operator has merely set forth the
steps it has taken to address the safety violations identified by
MSHA and has expressed its view of its financial condition.

     The operator has been given ample opportunity over the past
six months to justify these cases being reopened.  It has
submitted nothing to justify a finding of mistake, inadvertence,
surprise or excusable neglect.  In light of the foregoing, the
operator's request to reopen these case is DENIED.

     It is ORDERED that these cases are DISMISSED.


                              David F. Barbour
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

 David P. Grimsley, San Benito Aggregates, Inc., 151 Hillcrest
Road, Hollister, CA 95023

W. Christian Schumann, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 400, Arlington,
VA 22203

/wd


**FOOTNOTES**

     [1]:   On  May  15, 2000, the Secretary filed a petition for
reconsideration, requesting  the  Commission  to  reconsider  its
order.   On June 20, 2000, the Commission issued an order denying
the Secretary's request and upholding its previous order.