Denison Mines (USA) Corp. (Commission decision, July 24, 2008)

Plain-English summary

Denison Mines missed the contest deadlines for four proposed penalty assessments. The company said it expected to discuss or contest the citations at an April meeting in Denver and responded late when that did not occur. The Secretary did not oppose reopening. The Commission remanded the matter for the Chief Administrative Law Judge to decide whether the misunderstanding established good cause and whether relief from the final assessment orders should be granted.

Decision snapshot

• Governing provision: 30 U.S.C. § 815(a)
• Outcome: Four reopening requests were remanded for a determination of good cause and entitlement to relief.
• Key point: An expectation that citations will be addressed at a meeting does not replace the statutory contest process, but the circumstances may warrant a good-cause inquiry.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 24, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

DENISON MINES (USA) CORP.

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Docket No. WEST 2008-992-M

A.C. No. 05-03153-142037

Docket No. WEST 2008-993-M

No. 05-01197-145611

Docket No. WEST 2008-994-M

No. 05-03780-145617

Docket No. WEST 2008-995-M

No. 42-00470-142235

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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. (2000) (“Mine Act”).

On May 12, 2008, the Commission received from Denison
Mines (USA) Corp. (“Denison”) a letter seeking to reopen four penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. 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).

On February 28, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment Nos. 000142037, and 000142235 to Denison, proposing civil penalties for various citations. On April 3, 2008, MSHA issued Proposed Assessment Nos. 000145611 and 000145617, proposing penalties for other citations. In its request for relief, Denison states that it believed that it would be able to “discuss/contest” the citations during a meeting in Denver in April. It further explains that “[a]s this did not occur, we are later than we had planned on our response.” The Secretary states that she does not oppose the reopening of the proposed assessments.

Having reviewed Denison’s request and the Secretary’s response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Denison’s failure to timely contest the penalty proposals and whether relief from the final orders should be granted. If it is determined 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.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

James A. Fisher

General Mine Superintendent

Denison Mines (USA) Corporation

9244 W. Highway 141

P.O. Box160, Egnar, CO 81325

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021