<DOC>
[DOCID: f:wt2000155.wais]

 
SAN BENITO AGGREGATES, INCORPORATED
May 11, 2000
WEST 2000-155-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR
                     
                     WASHINGTON, D.C.  20006
                         
                         
                         May 11, 2000
                              
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      : Docket No. WEST 2000-155-M
  ADMINISTRATION (MSHA)       :            WEST 2000-156-M
                              :            WEST 2000-157-M
          v.                  :            WEST 2000-158-M
                              :            WEST 2000-159-M
SAN BENITO AGGREGATES,        :            WEST 2000-160-M
  INCORPORATED                :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty
        Commissioners

                              ORDER

BY THE COMMISSION:

     This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").  On
February 7, 2000, the Commission received from San Benito Aggre-
gates, Inc. ("San Benito") a request to reopen six penalty
assessments that had become final orders of the Commission pur-
suant to section 105(a) of the Mine Act, 30 U.S.C. � 815(a).
On March 2, the Commission received the Secretary's response,
opposing the request.

     Under section 105(a) of the Mine Act, an operator has 30
days following receipt of the Secretary of Labor's proposed
penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty.  If the operator fails to
notify the Secretary, the proposed penalty assessment is deemed a
final order of the Commission.  30 U.S.C. � 815(a).

     In his letter, David Grimsley, owner of San Benito
Aggregates, Inc. ("San Benito"), a small quarry in Hollister,
California, asserts that he was not informed by his staff of the
violations associated with these penalty assessments until he
received a demand letter for payment from the Department of
Labor's Mine Safety and Health Administration ("MSHA") in late
December 1999.  Mot.  Grimsley states that he was not informed
"for reasons unbelievable to me."  Id.  He claims that he has
reevaluated his operations and has made "serious adjustments
where needed."  Id.  He offers that his company is in financial
crisis and that the penalties would have a substantial impact.
Id.  Accordingly, San Benito requests an opportunity to contest
the six proposed penalties.  Id.

     The Secretary asserts that San Benito does not meet the
standards for relief under Fed. R. Civ. P. 60(b) because it has
failed to establish that its conduct amounts to "excusable
neglect."  S. Opp'n. to Mot. at 1-2.  She states that the only
explanation San Benito offers for its failure to contest the
penalty assessments is that it had internal management problems,
and that mistakes and omissions of an operator's staff do not
constitute excusable neglect.  Id. at 5-7.  The Secretary notes
that San Benito received the six penalty assessments at issue,
which include 61 violations totaling $33,722 in penalties, over
the course of 6� months.  Id. at 2-3, 7; Attach. A.  She asserts
that San Benito also received five notices, one for each of the
first five penalty assessments, but failed to respond to either
the penalty assessments or the notices until it received a letter
from MSHA dated December 8, 1999, demanding payment of all six
penalty assessments and threatening referral to the Department of
Justice for collection.  Id. at 3-4; Attach. B-D.  The Secretary
also offers that San Benito is familiar with MSHA procedure
because it received penalty assessments for 120 violations over
the past 13� years.  Id. at 4; Attach. E.  Finally, the Secretary
contends that granting San Benito relief under these
circumstances would be unfair to compliant operators and
inconsistent with effective enforcement of the Mine Act. Id. at
7-8.   Accordingly, the Secretary requests that the Commission
deny San Benito's request for relief.  Id. at 8.

     We have held that, in appropriate circumstances and pursuant
to Rule 60(b), we possess jurisdiction to reopen uncontested
assessments that have become final under section 105(a).  Rocky
Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter
Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993).  We have also
observed that default is a harsh remedy and that, if the
defaulting party can make a showing of adequate or good cause for
the failure to timely respond, the case may be reopened and
appropriate proceedings on the merits permitted.  See Coal
Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In
accordance with Rule 60(b)(1), we have previously afforded a
party relief from a final order of the Commission on the basis of
inadvertence or mistake.  See Kinross DeLamar Mining Co., 18
FMSHRC 1590, 1591-92 (Sept. 1996); General Chem. Corp., 18 FMSHRC
704, 705 (May 1996); Drummond Co., 17 FMSHRC 883, 884 (June
1995).

     On the basis of the present record, we are unable to
evaluate the merits of San Benito's request.  Although it appears
that San Benito has offered an explanation for its failure to
timely file a hearing request, it has not attached sufficiently
reliable documents to substantiate its allegations.  Moreover,
the Secretary, in her opposition, has alleged facts in addition
to those raised by San Benito.  We are unable to evaluate this
factual record at an appellate level.[1]  In the interest of
justice, we thus remand the matter for assignment to a judge to
determine whether San Benito has met the criteria for relief
under Rule 60(b).  If the judge determines that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and
the Commission's Procedural Rules, 29 C.F.R. Part 2700.


                              Mary Lu Jordan, Chairman
                              
                              Marc Lincoln Marks, Commissioner
                              
                              James C. Riley, Commissioner
                              
                              Theodore F. Verheggen, Commissioner
                              
                              Robert H. Beatty, Jr., Commissioner


Distribution

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

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203

Chief Administrative Law Judge David Barbour, Federal Mine Safety
& Health Review Commission, 1730 K Street, N.W., Suite 600, Wash-
ington, D.C.  20006


**FOOTNOTES**

     [1]  Commissioners Beatty and Riley believe that the
Commission should remand to an administrative law judge to
determine whether the criteria for relief under Rule 60(b) have
been met whenever the request to reopen or any response thereto
raises factual issues irrespective of whether or not the
Secretary of Labor objects to or opposes an operator's request
for relief.  Commissioners Beatty and Riley believe that any
factual issues raised by a request to reopen under Rule 60(b) or
any response should be resolved in the first instance by a
judge, as the trier of fact.