Motion for Stay of Enforcement.
Before WEICK, EDWARDS and PECK, Circuit Judges.
EDWARDS, Circuit Judge.Petitioners in this case have filed a “Motion for Stay of Enforcement of Mine Closure Orders” under Rule 18 of the Federal Rules of Appellate Procedure. The motion seeks an order of this court requiring respondent, Rogers C. B. Morton, Secretary of the United States Department of the Interior, to stay enforcement of any withdrawal orders issued against petitioners’ mines. The stay is sought pending review on the merits of a petition for review of respondents’ denial of a petition for modification of the interim mandatory safety standards contained in Section 305(a) (2), 30 U.S.C. § 865(a)(2) (1970), of the Federal Coal Mine Health and Safety Act of 1969, as applied to petitioners’ mines.
This petition was filed March 18, 1974, under Section 301(c) of the Act, 30 U.S.C. § 861(c) (1970). It was ordered dismissed by an administrative law judge April 12, 1974, which dismissal was affirmed by the Board of Mine Operations Appeals of the United States Department of the Interior April 24, 1974. Both the Board and the administrative law judge dismissed the petition as a matter of law, holding that the petition “failed to state a cause of action upon which a modification of a mandatory safety standard can be granted.”
*1365The Department clearly regarded the petition as seeking a waiver of Section 305(a)(2), which provides in applicable part:
“(2) Effective four years after the operative date,of this subchapter, all electric face equipment, other than equipment referred to in paragraph (1) (B) of this subsection, which is taken into or used inby the last open crosscut of any coal mine which is operated entirely in coal seams located above the watertable and which has not been classified under any provision of law as a gassy mine prior to the operative date of this subehapter and in which one or more openings were made prior to December 30, 1969, shall be permissible except, that any operator of such mine who is unable to comply with the provisions of this paragraph on such effective date may file with the Panel an application for a permit for noncompliance ninety days prior to such date. If the Panel determines, after notice to all interested persons and an opportunity for a public hearing under section 804 of this title, that such application satisfies the provisions of paragraph (10) of this subsection and that such operator, despite his diligent efforts, will be unable to comply with such provisions, the Panel may issue to such operator such a permit. Such a permit shall entitle the permittee to an additional extension of time to comply with the provisions of this paragraph of not to exceed twenty-four months, as determined by the Panel, from such effective date.” 30 U.S.C. § 865(a) (2) (1970).
The position of the administrative law judge and of the Board of Appeals was that this section is a mandatory safety requirement which could not legally be waived by the Secretary. Our review of the statute convinces us that this position is correct as a matter of law. See Reliable Coal Co. v. Morton, 478 F.2d 257 (4th Cir. 1973). Section 305(a)(2) is designated by Congress as an “interim mandatory safety standard”1 (emphasis added). Section 305 (a) (2) as adopted by Congress contained a four-year delayed effective date in order to allow mine owners like petitioners to secure the equipment necessary for compliance. We note that this petition was filed just 12 days before the expiration of the four-year grace period allowed by Congress.
Petitioners also sought a measure of relief pertaining to the methane gas detection device specified in Section 303 (Í) of the Act. It is their claim that there is a system for more effective detection of methane gas than that specified by Section 303(Í). As the administrative law judge noted, however:
“In order to obtain a modification the petitioner has to present either an available alternative method or proof that the application of the mandatory safety standard will result in a diminution of safety to the miners. The Petition for Modification in this case does not allege either of these two necessary points.
“Section 301(e) compels the present existence of an alternative method. The method laid out in the Petition in question does not presently have MESA approval and is not permissible equipment.5
Like the administrative law judge and the Board, we conclude that on the showing made, the petition must be denied as a matter of law, and, therefore, that no evidentiary hearing was required for this conclusion.
For the reasons stated above, we find that there is no “substantial likelihood” of petitioner “prevail [ing] on the merits.” 30 U.S.C. § 816(c)(1)(B) (1970).
*1366At oral argument of this motion counsel for the government stated without any contradiction that the government had no intention of issuing orders to close any mines where applications for delay to acquire permissible equipment had been filed, along with a showing that such permissible equipment was on order. The authority for such delay is contained in § 305(a)(2) of the Act, 30 U.S.C. § 865(a)(2) (1970).
The motion for stay pending review is denied.
. Affidavit of Joseph J. Seaman, Chief, Approval and Testing Group, MESA, Exhibit A, MESA’s Motion to Dismiss Petition or in the alternative, for Summary Decision.”
. See Subchapter III — Interim Mandatory Safety Standards for Underground Coal Mines. 30 U.S.C. § 801 et seq.