Even if this variance request were appropriate under the criteria of Section 702, the operator is not obligated to submit the request to the Director. Rather, the operator could simply adopt and implement the proposed variance. The variance request poses serious risks to the health and safety of miners and proposes a system of preshift examinations, which is a direct violation of law. This variance request does not fall under Section 702 because it does not propose the adoption of use of new machinery, equipment tools, supplies, devices, methods or processes. Therefore, the Director should reject the request without even considering it.
Director has no authority to alter pre-shift examination requirements.
The Director has no authority, either real or implied, to consider this variance request which proposes to re-write the Mining Laws of the Commonwealth without regard to the devastating effects this may hold for miners. Much of this monitoring equipment did not exist prior to 1961. It is the Department's position, therefore, that the variance request is an appropriate subject for a Section 702 variance request proposal. Section 702 provides authority for an operator to vary from the requirements of any section of the Act provided the variance does not compromise the health and safety of the miners. Section 702 expressly states that the proposed variance must meet the standard of according protection to personnel and property substantially equal to or in excess of the requirements set forth in the Act.