BethEnergy Mines, Inc.

Plain-English summary

BethEnergy Mines contested citations alleging that two belt-conveyor travelways at its underground Mine No. 60 lacked the required 24 inches of clear space. The ALJ had found the safeguard valid because it followed a published safeguard criterion and had affirmed the citations as significant and substantial. The Commission held that a safeguard is not valid merely because it follows a published criterion, and that its validity depends on an inspector's determination of a specific transportation hazard at the mine and fair notice of the required conduct. It affirmed the result on BethEnergy's collateral-estoppel argument, vacated the rest of the ALJ's decision, and remanded for findings on the safeguard's validity and, if valid, the remaining violation issues.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1403, 75.1403-1(b), and 75.1403-5(g)
• Outcome: The Commission affirmed the collateral-estoppel result, vacated the remainder of the ALJ decision, and remanded for further consideration.
• Key point: A safeguard based on a published criterion still must be grounded in specific mine conditions and interpreted narrowly enough to provide fair notice.

Full text (FMSHRC public release)

CCASE:
BETHENERGY MINES V. MSHA
DDATE:
19920110
TTEXT:
January 10, 1992
BETHENERGY MINES, INC.

v. Docket Nos. PENN 89-277-R
PENN 89-278-R
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This case, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. • 801 et seq. (1988)("Mine Act" or "Act"), presents the
following issues: (1) whether the validity of a notice to provide safeguards
issued pursuant to 30 C.F.R. • 75.1403 is affected by the fact that it is
patterned after 30 C.F.R. • 75.1403-5(g), a published safeguard
criterion;(Footnote 1)

1
30 C.F.R. • 75.1403 repeats section 314(b) of the Mine Act, 30 U.S.C. •
874(b), and states:
Other safeguards adequate, in the judgment of
an authorized representative of the Secretary [of
Labor], to minimize hazards with respect to
transportation of men and materials shall be
provided.
30 C.F.R. • 75.1403-1 sets forth general provisions regarding
"criteria" by which authorized representatives are guided in requiring
safeguards. Section 75.1403-1(a) provides:
Sections 75.1403-2 through 75.1403-11 set out
the criteria by which an authorized representative
of the Secretary will be guided in requiring other
safeguards on a mine-by-mine basis under • 75.1403.
Other safeguards may be required.
The procedures by which an authorized representative of the Secretary
may issue a citation pursuant to section 75.1403 are described in 30 C.F.R.
 75.1403-1(b)
~18
(2) whether the Secretary of Labor should be collaterally estopped from
litigating an issue regarding the issuance of certain relevant citations;
(3) whether BethEnergy Mines, Inc. ("BethEnergy") failed to comply with the

Page 2

subject notice to provide safeguards; (4) whether BethEnergy's alleged
violations of the notice to provide safeguards were of a significant and
substantial nature; and (5) whether two citations alleging BethEnergy's
violations of the notice to provide safeguards were duplicative.
Commission Administrative Law Judge William Fauver determined that
although the subject notice to provide safeguards may have addressed hazards
commonly encountered at other mines, it was not rendered invalid because it
was based on a published safeguard criterion. 12 FMSHRC 761, 768-69 (April
1990)(ALJ). Interpreting the safeguard broadly, the judge found that
BethEnergy had violated the safeguard and that the violations were of a
significant and substantial nature. 12 FMSHRC at 769-70. The judge also
concluded that collateral estoppel should not be applied against the
Secretary. 12 FMSHRC at 770. Finally, the judge determined that the two
citations issued against BethEnergy for its alleged violations were not
duplicative. Id.
For the reasons explained below, we affirm the judge's determination
that collateral estoppel should not be applied against the Secretary in this
case. We apply herein the general principles concerning the Secretary's
power to issue safeguards announced in our companion decision issued this
date in Southern Ohio Coal Co., 14 FMSHRC , Nos. WEVA 88-144-R, etc.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to • 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If
the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a notice
shall be issued to the operator pursuant to section
104 of the Act.
30 C.F.R. • 75.1403-5 is entitled "Criteria-Belt conveyors" and section
75.1403-5(g) provides:
A clear travelway at least 24 inches wide
should be provided on both sides of all belt
conveyors installed after March 30, 1970. Where
roof supports are installed within 24 inches of a
belt conveyor, a clear travelway at least 24 inches
wide should be provided on the side of such support
farthest from the conveyor.
~19
("SOCCO").2 We vacate the remainder of the judge's decision, and remand
this case for further proceedings.
I.
Factual Background and Procedural History
On June 13, 1984, Francis Wier, an inspector of the Department of

Page 3

Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to
provide safeguard to BethEnergy at its Mine No. 60, an underground coal mine
located in Pennsylvania. The notice states:
A clear travelway of at least 24 inches wide was not
provided on both sides of the belt conveyor in the
longwall section MMU 031. Starting at the tipple
and extending inby for approximately 400 ft. For
the first 200 ft. the clearance changed from the
left side back to right and management had the area
fenced of[f] and a crossunder had been provided.
The second area was approximately 300 ft. inby the
tipple was on the left sid[e] and clearance was
between 23 inches and 15 inches for approximately
10-15 feet in two different locations.
This is a notice to provide safeguard that requires
at least 24 inches of a clear travelway be provided
on both sides of all belt conveyors installed after
March 30, 1970 at this mine.

Joint Exh. 3.
More than five years later, on September 7, 1989, MSHA Inspector John
Mull conducted a regular inspection at the Livingston portal at the Eighty-
Four Complex, an underground coal mine that includes the area formerly known
as Mine No. 60. As he walked along the No. 3 and No. 4 belt conveyors, he
observed that there was not a continuous 24-inch clearance on both sides of
the belts because rib material, concrete blocks, and cribs obstructed the
"tight" (i.e., narrow) travelway beside the belts. Tr. 44-45, 58. Based
upon his observations, Inspector Mull issued two citations, pursuant to
section 104(a) of the Mine Act, 30 U.S.C. • 814(a), each alleging a
violation of the safeguard notice issued by Inspector Wier. Tr. 47.
Citation No. 3088080, issued for the alleged violative condition
located beside the No. 4 belt, states:
At least 24 inches of a clear travelway was
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
2 The present decision is one of four issued this date dealing with
safeguard issues. In addition to SOCCO, supra, the other decisions are
Mettiki Coal Corp., 14 FMSHRC , Nos. YORK 89-10-R, etc.; and Rochester &
Pittsburgh Coal Co., 14 FMSHRC , Nos. PENN 88-309-R, etc.
~20
not provided on both sides of the no. 4 belt ... as
the side not normally walked was obstruct[ed] with
material from the ribs and other material at
numerous locations.
Citation No. 3088162, issued for the alleged violative condition existing
beside the No. 3 belt, states:

Page 4

At least 24 inches of a clear travelway was
not provided on both sides of the entire no. 3 belt,
as the side not normally walked was obstruct[ed]
with rib material, crib, block and other material at
numerous locations.
Inspector Mull designated both alleged violations to be of a
significant and substantial nature because he believed that the obstructions
presented tripping and slipping hazards that could cause a miner to suffer
strains, sprains, and bruises. Furthermore, he found that if persons
tripped on the obstructions, they could fall against the belt and catch
their arms in the roller, which could be permanently disabling or fatal.
BethEnergy contested both citations, and the matter proceeded to a hearing
before Judge Fauver.
At the hearing, Roger Uhazie, the subdistrict manager for MSHA,
testified that there are 47 active mines covered by the MSHA Monroeville
Sub-District Office. Tr. 33-34. Mr. Uhazie testified that all of the large
mines in the subdistrict have a similar safeguard requiring 24 inches of
clearance on both sides of belt conveyors. Tr. 37. Five mines that have
not been issued a similar safeguard do not have belt conveyors or are small
mines. Tr. 34, 37.
In his decision, the judge focused on the validity of the underlying
safeguard. Preliminarily, he acknowledged that he had previously
interpreted Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976), to
stand for the proposition that safeguards addressing commonly encountered
hazards in mines were invalid because they were not mine-specific and should
have been the subject of a mandatory standard. 12 FMSHRC at 766.
The judge then explained that in United Mine Workers of America v.
Dole, 870 F.2d 662 (D.C. Cir. 1989), the United States Court of Appeals for
the District of Columbia Circuit clarified its earlier holding in Zeigler.
The judge stated:
As so clarified, the Zeigler decision is a warning that the Secretary should utilize mandatory standards [by formal rulemaking] for requirements of universal application,' but it does not preclude the Secretary fromrequiring that generally-applicable
plan approval criteria or their equivalents be
incorporated into mine plans.' The Court's
reasoning for the latter conclusion has particular
significance here.
~21
12 FMSHRC at 767, citing Dole, 870 F.2d at 672. The judge interpreted the
Court's reasoning to mean that the Secretary would not circumvent formal
rulemaking procedures by requiring incorporation of generally applicable
roof control provisions in plans if those provisions were based upon
criteria that had been promulgated in accordance with notice-and-comment

Page 5

rulemaking procedures. 12 FMSHRC at 767-68.
The judge then concluded that the roof control plan criteria reviewed
in Dole and the safeguard criteria at sections 75.1403-2 through -11 were
similar in that both were promulgated in accordance with section 101 of the
Act, 30 U.S.C. • 811, and that neither was enforceable until it was
incorporated into an actual plan or safeguard. The judge summarized:
I hold that if an inspector's safeguard notice is
based on a published criterion (in 30 C.F.R.
 75.1403-2 through 75.1403-11), using the same or
substantially the same language as the criterion,
then (1) the safeguard is valid even if the hazard
is of a general rather than a mine-specific nature,
and (2) the safeguard is not subject to the strict
construction rule announced by the Commission in
Southern Ohio Coal Co., [7 FMSHRC 509 (April 1985)],
but should be interpreted in the same manner as any
other promulgated safety standard.
12 FMSHRC at 769.
Based upon the foregoing, the judge found the safeguard in question to
be valid because it was patterned upon section 75.1403-5(g), a published
criterion, and he proceeded to interpret the safeguard broadly. 12 FMSHRC
at 770. Finding that the language of the safeguard gave reasonable notice
that the walkway beside the conveyor belt should be clear, the judge
affirmed the citations describing obstructions in the walkway. Id. The
judge also concluded that collateral estoppel should not be applied against
the Secretary in this matter. Id.
The Commission granted BethEnergy's petition for discretionary review.
Oral argument in this matter was heard on February 21, 1991, along with
argument in the other safeguard cases.
II.
Disposition of Issues
A. Validity of underlying safeguard

1. The Secretary's general safeguard authority
   The central issue in this case is the validity of the underlying
   safeguard. In its companion decision issued this date in SOCCO, supra, the
   Commission addressed the extent of the Secretary's power to issue
   safeguards. We reviewed the text and legislative history of section 314(b)
   ~22
   of the Mine Act, 30 U.S.C. • 874(b) (see n.1 supra), which confers upon the
   Secretary the general authority to issue safeguards. We reaffirmed the
   Commission's view, first expressed in Southern Ohio Coal Co., 7 FMSHRC 509,
   512 (April 1985)("SOCCO I"), that section 314(b) is an unusually broad grant
   of regulatory authority to the Secretary that permits her to issue on a
   mine-by-mine basis what are, in effect, mandatory standards dealing with
   transportation hazards.

Page 6

The Commission rejected the proposition that a notice to provide
safeguard is invalid if it addresses a hazard that exists in a significant
number of mines. We noted the considerable authority of the Secretary to
determine what should properly be formulated as mandatory standards, and we
held that the rulemaking provisions of the Mine Act, sections 101 and 301,
30 U.S.C. • 861, do not circumscribe the Secretary's authority to issue
safeguards under section 314(b). Rather, we held that a safeguard may
properly be issued to deal with commonly encountered transportation hazards,
provided it is based on a determination by the inspector of a specific
transportation hazard existing at a particular mine. We made clear,
however, that a safeguard may not properly be issued by rote application of
general MSHA policies, irrespective of the specific conditions at a given
mine. We also discussed the Court's opinion in Zeigler Coal Co. v. Kleppe,
536 F.2d 378 (D.C. Cir. 1976), and the Commission's opinion in Carbon County
Coal Corp., 7 FMSHRC 1367 (September 1985), both of which dealt with the
mine ventilation plan adoption and approval process, and concluded that
these cases are distinguishable. Finally, we allocated to the Secretary the
burden of proving that a safeguard was issued on the basis of the specific
conditions at a particular mine. Notwithstanding the legal conclusions
reached in SOCCO, we also questioned, from the standpoint of policy, whether
the proliferation of safeguards is the most effective method of addressing
the more commonly encountered hazards in underground coal mine
transportation, and we strongly suggested that the safety of underground
coal miners would be better advanced by the promulgation of mandatory safety
standards aimed at eliminating such hazards. SOCCO, 14 FMSHRC at , slip
op. at 15-16.

2. Validity of safeguard based on published safeguard
   criterion
   The Secretary primarily argues that a safeguard addressing a commonly
   encountered hazard is nonetheless valid. The Secretary argues alternatively
   that, if a safeguard cannot validly be issued for a commonly encountered
   hazard, a safeguard issued for such a hazard is nonetheless valid if it is
   based upon one of the promulgated safeguard criteria set forth in 30 C.F.R.
   •• 75.1403-2 through 75.1403-11. The Secretary relies upon Dole, 870 F.
   662, to support this position.
   In ruling that a safeguard dealing with a commonly encountered hazard
   may properly be issued if it is based on a published safeguard criterion,
   the judge also relied heavily on Dole. In Dole, the United Mine Workers of
   America ("UMWA") brought an action asserting that the level of protection
   afforded by the Secretary's new roof plan regulations, which include roof
   control plan criteria, had been reduced. In its determination of whether
   ~23
   the new regulations (30 C.F.R. • 75.204(a) & (b), & 75.213 (1990)) afforded
   the same level of protection to miners as the predecessor regulations (30
   C.F.R. • 75.200-7(a), 75.200-12, 75.204, 75.204-1 and 75.200-14 (1987)),

Page 7

the Court examined whether the predecessor regulations constituted
"mandatory standards," since only such mandatory standards are included
within the scope of the "no-less protection rule." 870 F.2d at 667; 55 Fed.
Reg. 4592 (February 8, 1990). The "no-less protection rule," embodied in
the Act's grant of rulemaking power to the Secretary (30 U.S.C. • 811(a)),
authorizes the Secretary to replace existing mandatory standards only if the
new standards provide at least the same level of protection as the old
standards. See 870 F.2d at 664.
The Court concluded that the predecessor regulations constituted
mandatory standards and, therefore, were subject to the "no-less protection
rule." 870 F.2d at 672. The Court explained that the predecessor
regulations required that a certain level of protection be met by all plans,
even if some individual criteria were not adopted in a specific plan.
870 F.2d at 670.
The Court rejected the argument of intervenor American Mining Congress
("AMC") that roof control plans were intended to contain only mine-specific
provisions and that generally applicable provisions were invalid and not
subject to the "no-less protection rule." 870 F.2d at 669. The Court found
that Congress intended roof control plans to afford comprehensive protection
against roof falls and, therefore, that they could properly contain
provisions that might be appropriate at many mines as well as provisions
that might be inappropriate at other mines. 870 F.2d at 670. The Court
indicated that the AMC's argument was based upon an apparent misconstruction
of Zeigler and Carbon County, supra. The Court interpreted Zeigler and
Carbon County to stand only for the proposition that "the Secretary could
abuse her discretion by utilizing plans rather than explicit mandatory
standards to impose general requirements if by so doing she circumvented
procedural requirements for establishing mandatory standards laid down in
the Mine Act." 870 F.2d at 671-72.
The Court further explained that the Secretary is not precluded from
requiring general plan provisions that would achieve an "overall level of
miner protection on all pertinent aspects of roof control," but that the
Secretary "should utilize mandatory standards for requirements of universal
application." 870 F.2d at 672. The Court acknowledged that the Secretary
possesses considerable authority to determine what hazards should be dealt
with through the promulgation of mandatory standards under section 101 of
the Mine Act, 30 U.S.C. • 811. 870 F.2d at 671.
We believe that conclusions with regard to criteria that are drawn
from the roof control plan process are not applicable to cases involving
safeguards. A roof control plan must provide the same level of protection
as that afforded by the plan criteria, even if a certain roof plan criterion
is not included in a particular plan. 30 C.F.R. • 75.200-6 (1987); Dole,
870 F.2d at 670. There is no similar requirement with respect to the
safeguard criteria. Section 75.1403-1(b) makes clear that the safeguard
criteria are not binding on any particular operator unless, and until, that

Page 8

~24
operator is given notice, in a written safeguard from an authorized
representative of the Secretary, that one or more of the criteria are
applicable to its mine. 30 C.F.R. • 75.1403-1(b). MSHA's Program Policy
Manual (the "Manual") reiterates "that these criteria are not mandatory."
Manual, Volume V, Part 75, p. 125.(Footnote 3)
As we concluded in SOCCO, a safeguard is valid only if it is based on
a determination by the inspector that a transportation hazard exists at a
particular mine. The fact that a safeguard is based on a published
criterion does not, by itself, establish its validity. In this regard, the
judge erred when he concluded that the safeguard criteria "may be used as
safeguards even though they are applied at many mines and are not minespecific"
because they were promulgated in accordance with section 101 of
the Act. 12 FMSHRC at 769. The judge reached this conclusion by
interpreting Dole to mean that the published roof control criteria
constituted mandatory standards because they were promulgated in accordance
with notice-and-comment rulemaking procedures. Id. quoting, 870 F.2d at
670 & 671. We disagree with the judge's interpretation of Dole. The Court
reached the conclusion that the published criteria constituted mandatory
standards not because individual criteria were promulgated but, instead,
because overall they mandated a particular level of protection. The Court
stated that roof control plans can be approved by MSHA "only if they either
conformed to the criteria or `provide[d] no less than the same measure of
protection to the miners' as the criteria.... MSHA was not only empowered
but required to withhold approval of the plan until the mine operator
incorporated the criterion. Thus the criteria ... themselves constituted a
mandatory standard laying down a required level of protection for miners
that had to be met by all plans." 870 F.2d at 670 (emphasis in original)
(citations omitted). The roof control plan criteria in Dole cannot
appropriately be compared to safeguard criteria because, as noted above,
there is no similar requirement that all mines provide the level of
protection that would result from imposition of the safeguard criteria.
Hence, we reject the view that a safeguard is valid merely because it is
based on a published safeguard criterion and, as explained above, we do not
read Dole to compel by analogy the contrary result.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
3 The title page of the Manual states that the "MSHA Program Policy Manual
is a compilation of the Agency's policies on the implementation and
enforcement of the Federal Mine Safety and Health Act of 1977 and Title 30
Code of Federal Regulations and supporting programs." The D.C. Circuit has
stated that while the Manual may not be binding on MSHA, "we consider the
MSHA Manual to be an accurate guide to current MSHA policies and practices."
Coal Employment Project v. Dole, 889 F.2d 1127, 1130 n.5 (D.C. Cir. 1989).
(The Commission has indicated that, as an adjudicative body, it is not
necessarily bound by statements in the Manual, although in appropriate

Page 9

circumstances, it may choose to defer to and apply such pronouncements.
See, e.g., King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981).).
~25

3. Judicial construction of safeguard based on a published
   criterion
   We also reject the judge's determination that a safeguard notice based
   on a promulgated safeguard criterion need not be strictly construed by the
   Commission, but may be interpreted more broadly in a manner similar to the
   proper construction of any other mandatory standard. As we discussed in
   SOCCO I (7 FMSHRC at 512), and reaffirm today, a safeguard must be
   interpreted narrowly in order to balance the Secretary's unique authority to
   require a safeguard and the operator's right to fair notice of the conduct
   required of it by the safeguard. The fact that a safeguard is based on a
   published criterion does not alter this fundamental consideration. A
   criterion does not provide clear notice until it is embodied in a safeguard
   issued to the operator. The focus of judicial inquiry is on whether the
   safeguard is based on specific conditions at a mine and, as to those
   specific conditions, whether it affords the operator fair notice of what is
   required or prohibited by the safeguard.
   In sum, we hold that the fact that a notice to provide safeguard is
   based upon a promulgated safeguard criterion is not, in itself,
   determinative of the validity of the safeguard. As explained in SOCCO, the
   validity of a safeguard depends on whether it was based on the inspector's
   evaluation of specific conditions at the mine in question and a
   determination that those conditions created a specific transportation hazard
   in need of the remedy prescribed. Because the judge in this case failed to
   consider the manner in which the safeguard was issued, we vacate the judge's
   determination that the safeguard was valid. We remand for further
   consideration in light of the present decision, our companion decision
   issued today in SOCCO, and the principles of construction announced in
   SOCCO I, 7 FMSHRC at 512.
   Since we vacate the judge's determination that the underlying
   safeguard was valid, we need not reach at this juncture the issue of whether
   BethEnergy violated the safeguard, whether the alleged violations were
   properly designated significant and substantial, and whether the citations
   issued were duplicative. The judge may reach those issues again on remand,
   as appropriate.
   The single issue remaining is whether the judge erred in concluding
   that collateral estoppel should not be applied against the Secretary in this
   proceeding.
   B. Collateral Estoppel
   BethEnergy contends that the Secretary should be collaterally estopped
   from relitigating the issue of whether she possesses the authority to issue
   and enforce a safeguard on an MSHA District-wide basis, without
   consideration of the specific conditions at a given mine, because she

Page 10

previously litigated and lost the same issue against BethEnergy in
BethEnergy Mines, Inc., 11 FMSHRC 942 (May 1989)(ALJ) (BethEnergy I").
The
judge determined that the Secretary should not be collaterally estopped in
this proceeding because the safeguard in question in BethEnergy I was based
~26
upon a different criterion than the criterion invoked here and, further,
that BethEnergy I was decided "without the benefit of the [Dole] decision."
12 FMSHRC 761, 770 (April 1990).
The Secretary counters that the judge correctly rejected BethEnergy's
collateral estoppel argument because there are significant differences in
the safeguard issues in BethEnergy I and the present case. The Secretary
considers the most significant difference to be that this case involves the
validity of a safeguard based upon a published criterion, while in
BethEnergy I the safeguard was greatly modified from the language of a
published criterion. Finally, the Secretary argues that BethEnergy I
involved a different mine and that the safeguard addressed a different
hazard.
Under the doctrine of collateral estoppel, a judgment on the merits in
a prior suit may preclude the relitigation in a subsequent suit of any
issues actually litigated and determined in the prior suit. See, e.g.,
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979); Bradley v.
Belva Coal Co., 4 FMSHRC 982, 990 (June 1982). Collateral estoppel does not
apply in instances in which there has been a change in controlling facts or
applicable legal principles between the two cases. See, e.g., Montana v.
United States, 440 U.S. 147, 158-59 (1979); United States v. Stauffer
Chemical Co., 464 U.S. 165, 169 (1984). A change in controlling facts may,
in effect, create a new issue in the second suit that was not litigated or
adjudicated in the prior suit. 1B J. Moore, Moore's Federal Practice •0.448
(2d ed. 1984). Identity of issue is a fundamental element that must be
satisfied before collateral estoppel may be applied. Continental Can Co.,
U.S.A. v. Marshall, 603 F.2d 590, 594 (7th Cir. 1979).
As discussed above, the fact that a safeguard is based upon a
published criterion does not necessarily affect its validity or the manner
in which it is to be judicially construed. Accordingly, we reject the
Secretary's contention that the issues in the two proceedings differ
significantly merely because the safeguard in the present proceeding is
founded on a published criterion. Likewise, we reject the judge's apparent
determination that there was a change in legal principles between BethEnergy
I and the present case because BethEnergy I was decided without the benefit
of Dole. Dole was in fact decided before BethEnergy I.
Nonetheless, we agree with the Secretary that the judge correctly
rejected BethEnergy's collateral estoppel argument. We conclude that
collateral estoppel should not be applied against the Secretary in this
case, in part, because BethEnergy did not prove identity of issue in view of

Page 11

the different controlling facts in BethEnergy I and the present case.
In BethEnergy I, the judge found that the evidence was undisputed that
the same safeguard had been issued at all mines with track haulage in MSHA
District 3, that these safeguards were uniformly based on a sample furnished
by MSHA's District 3 Office, and that the standardized modification language
was applied to all track haulage mines in District 3, regardless of the
conditions in any particular mine. See 11 FMSHRC at 943. Here, the
evidence was presented that the same safeguard requiring 24 inches of
~27
clearance on both sides of conveyor belts had not been issued to all mines
in the relevant MSHA subdistrict with belt conveyors. Small mines in the
subdistrict did not receive the safeguards. Tr. 37. BethEnergy has not
shown that there was no change in controlling facts between BethEnergy I and
this case, and therefore, has not proven identity of issue.
More importantly, however, we reject BethEnergy's collateral estoppel
argument because we find it to be irrelevant to the disposition of the
issues before the Commission in this case. As noted, BethEnergy seeks to
apply collateral estoppel to prevent the Secretary from litigating the issue
of "whether the Secretary has the authority to issue and enforce a safeguard
pursuant to 30 C.F.R. • 75.1403 on a District-wide basis without
consideration of the specific conditions at the mine." BE Br. at 24. The
Secretary is not attempting to litigate that issue. In fact, it appears
that the Secretary agrees that a safeguard may be issued only after a
representative of the Secretary considers the specific conditions at a mine.
See, e.g., Oral Arg. Tr. at 26. Thus, because the Secretary does not
dispute the issue that BethEnergy seeks to estop her from litigating,
collateral estoppel would have no effect on the resolution of the issues
before the Commission.
III.
Conclusion
For the reasons set forth above, we affirm, in result, the judge's
decision that collateral estoppel should not be applied against the
Secretary in this case, vacate the remainder of the judge's decision, and
remand this case for further consideration.
With respect to the issue of whether the underlying safeguard is
valid, the judge should set forth findings and conclusions as to whether the
Secretary proved that the disputed safeguard was based on the judgment of
the inspector as to the specific conditions at BethEnergy's Mine No. 60 and
on a determination by the inspector that a transportation hazard existed
that was to be remedied by the action prescribed in the safeguard. Taking
into consideration the principles announced in SOCCO I, the judge should
~28
determine whether the safeguard notice "identif[ied] with specificity the
nature of the hazard at which it [was] directed and the conduct required of
the operator to remedy such hazard." 7 FMSHRC at 512. If the judge finds

Page 12

the safeguard to have been validly issued, he should resolve the question of
whether BethEnergy violated the safeguard. The remaining issues are to be
reconsidered as appropriate to the judge's other determinations.