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PHELPS DODGE CORP. v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMM.

No. 81-7251.

681 F.2d 1189 (1982)

PHELPS DODGE CORPORATION, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration (MSHA); and United Steelworkers of America, Local 616, Respondents. United Steelworkers of America, AFL-CIO, Local Union 616, Intervenor.

United States Court of Appeals, Ninth Circuit.

Decided July 22, 1982.

Attorney(s) appearing for the Case

James G. Speer, Evans, Kitchel & Jenckes, Phoenix, Ariz., argued, for petitioner; Stephen W. Pogson, Evans, Kitchel & Jenckes, Phoenix, Ariz., on brief.

Ann S. Rosenthal (T. Timothy Ryan, Sol. of Labor; Cynthia L. Attwood, Associate Sol.; Michael A. McCord, Counsel for Appellate Litigation; Leslie J. Canfield on the brief) Washington, D. C., for respondent Sec. of Labor.

Mary-Win O'Brien, Pittsburgh, Pa.; Bernard Kleiman, Chicago, Ill., for respondent United Steelworkers of America.

James A. Lastowka, Washington, D. C., for respondent Fed. Mine Safety and Health Review Comm.

Before SNEED, POOLE and BOOCHEVER, Circuit Judges.

SNEED, Circuit Judge:

Phelps Dodge Corporation (petitioner) petitions for review of a final order of the Federal Mine Safety and Health Review Commission (MSHRC). Our jurisdiction is under 30 U.S.C. § 816(a)(1). The sole question for decision is whether a mine safety regulation, 30 C.F.R. § 55.12-16, was properly applied to justify the issuance of a citation and levy of a fine. The regulation, in this particular factual setting, did not give fair warning...

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