CHAPTER 7 VARIANCES AND PETITIONS FOR MODIFICATIONS

• Jurisdiction: United States

Mine Health and Safety
(Oct 1973)
CHAPTER 7
VARIANCES AND PETITIONS FOR MODIFICATIONS
Ronald H. Baxter
Doherty & Baxter
Topeka, Kansas

PROCEDURES FOR OBTAINING VARIANCES UNDER S. 2117 FOR UNDERGROUND COAL MINES, METAL AND NONMETALLIC OPEN PIT MINES AND NONMETALLIC UNDERGROUND MINES

S. 2117 a bill to amend the Federal Coal Mine Health and Safety Act of 1969 would bring all mining operations, including coal, metal and non-metallic (but excluding sand and gravel) within the scope of a single health and safety act.

The proposed act would allow existing standards, regulations, permits, decisions and interpretations under FCMHSA and FMNMSA, which were not inconsistent with any provision of S. 2117 to remain in effect until superseeded.¹

The proposed act also provides that pending administrative and judicial cases would continue to conclusion under prior procedures.²

S. 2117 is like OSHA¹¹ in that it establishes three types of variances. The first permits participation in a research project.¹² There is at present no such authority under FCMHSA. The second permits the operator time to obtain necessary personnel, materials or equipment if unavailable.¹³ The third permits an operator to employ alternative methods of operation which are no less safe than those required by standard.¹⁴ This provision is similar to those presently found in Section 301 (c) of FCMHSA.

Section 101 (c) of S. 2117 authorizes the Secretary to grant a variance from any standard of part thereof when he determines or the Secretary of H.E.W. certifies, that such variance is necessary to permit the operator to participate in research approved by the Secretary or the Secretary of H.E.W. to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.

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Section 102 (d) of S. 2117 allows an operator to apply to the secretary for a temporary order permitting limited noncompliance with a standard or any provision thereof promulgated under this Section of the act. The application of the operator must specify the standard or portion thereof from which the employer seeks a noncompliance order, a representation by the operator and qualified persons having first hand knowledge of the facts represented that the operator is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor, a statement of the steps taken (and the dates of the steps) to protect miners against the hazard covered by the standard, a statement of when he expects to be able to comply with the standard and what steps he has and will take (with the dates of the steps) to come into compliance and certification that he has informed his employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted and by other appropriate means. A description of how employees have been informed shall be contained in certification, also the employees shall be informed of right to petition the Secretary for a hearing.

The application must establish that the operator is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or materials and equipment needed to come into compliance or because necessary construction or alteration of facilities cannot be completed by the effective date. That he is taking all available steps to safeguard employees against the hazard covered by the standard. That he has an effective program for coming into compliance as quickly as practicable.

A temporary order issued under this subsection must prescribe practices, means, methods, operations and precesses the operator must adopt and use while the order is in effect and state in detail the program for coming into compliance. Such temporarary order may be granted only after notice to employees and opportunity for a public hearing. But, the Secretary may issue an interim order to be effective until a decision is made on the basis of the hearing.

A temporary order cannot be in effect longer than the period it takes for the employer to achieve compliance or six months. Such order may be renewed not more than twice. For renewal the requirements must continue to be met and the renewal application must be filed at least 90 days prior to the expiration date of the order. 180 days is maximum length for effect of interim renewal order. The provisions of this subsection shall not apply to any standard in effect on the effective date of this act with two exceptions.²¹

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Section 102 (e) of S. 2117 provides...