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SECRETARY OF LABOR v. OSHRC

No. 90-70086.

980 F.2d 1273 (1992)

SECRETARY OF LABOR, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Wagner Construction Co., Inc., Respondents.

United States Court of Appeals, Ninth Circuit.

Decided December 4, 1992.

Attorney(s) appearing for the Case

Robert P. Davis, Cynthia L. Attwood, Ann Rosenthal, Laura V. Fargas, U.S. Dept. of Labor, Washington, D.C., for petitioner.

Before: FEINBERG, GOODWIN and SCHROEDER, Circuit Judges.

FEINBERG, Circuit Judge:

In this unusual case, the Secretary of Labor petitions for review of a final order of the Occupational Safety and Health Review Commission interpreting 29 C.F.R. § 1926.152(c)(3) (the Regulation) to apply only when the flammable or combustible liquids to which it relates are stored in proximity to a building. In this unopposed petition, the Secretary argues that the Regulation, which is reproduced in the margin,1

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