NATIONAL ENGINEERING & CONTRACTING CO., PETITIONER V. OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION, ET AL.

   No. 90-253

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The Respondents In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-2a) is
unpublished, but the decision is noted at 902 F.2d 34 (Table) and
appears at 14 O.S.H. Rep. (BNA) 1621.  The decision of the district
court (Pet. App. 3a-8a) is reported at 687 F. Supp. 1219.  The
magistrate's order that the district court affirmed (App., infra,
1a-3a) is unpublished.  /1/ The decision of the Occupational Safety
and Health Review Commission's ALJ (Pet. App. 16a-29a) is summarized
at 13 O.S.H. Cas. (BNA) 1817.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 8, 1990.
The petition for a writ of certiorari was filed on August 6, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the exception to coverage in Section 4(b)(1) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 653(b)(1), for
"working conditions of employees with respect to which other Federal
agencies * * * exercise statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health,"
applies to construction work governed by a contract with the Army
Corps of Engineers.

   2. Whether the Army Corps of Engineers had authority to consent to
an inspection of the construction work site by the Occupational Safety
and Health Administration (OSHA).

   3. Whether OSHA acted within the scope of its statutory authority
and complied with the Fourth Amendment to the Constitution when it
conducted its June 1988 inspection of the construction work site.

                               STATEMENT

   1. Congress enacted the Occupational Safety and Health Act of 1970
(OSH Act or Act), 29 U.S.C. 651 et seq., "to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions." 29 U.S.C. 651(b).  To achieve this purpose, the Act
requires employers to keep their work places free from recognized
hazards likely to cause death or serious physical harm to their
employees and also requires employers to comply with occupational
safety and health standards promulgated by the Secretary of Labor.  29
U.S.C. 654(a) and (b).

   The Secretary enforces the OSH Act primarily by issuing citations
to employers who she determines have violated the Act or any duly
promulgated standard.  29 U.S.C. 658.  In conjunction with her
authority to issue citations for violations, the Secretary proposes
civil penalties (29 U.S.C. 659(a), 666), prescribes abatement periods
(29 U.S.C. 658(a), 659(b)), and may seek injunctive relief in federal
district court against violations posing imminent danger to employee
safety and health (29 U.S.C. 662).  Contested citations, which are
adjudicated before the Occupational Safety and Health Review
Commission (29 U.S.C. 659, 661), and district court decisions
regarding injunctions may be reviewed in the courts of appeals (29
U.S.C. 660(a) and (b);  28 U.S.C. 1292(a)(1)).

   "In order to carry out the purposes of th(e) (Act)," the Secretary
has broad authority to enter a work site "without delay and at
reasonable times" and inspect pertinent conditions.  29 U.S.C. 657(a).
 In addition, the Secretary is specifically authorized to inspect a
work site in response to an employee's notification of a violation
that threatens physical harm.  29 U.S.C. 657(f)(1);  see generally
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (warrant required for
inspections absent employer consent).

   In general, the Secretary's inspection authority, as well as the
other provisions in the OSH Act, apply broadly to "employment
performed in a workplace," 29 U.S.C. 653(a).  One exception to this
coverage is set forth in Section 4(b)(1) of the Act:

         Nothing in this chapter shall apply to working conditions of
      employees with respect to which other Federal agencies, and
      State agencies acting under section 2021 of Title 42, exercise
      statutory authority to prescribe or enforce standards or
      regulations affecting occupational safety or health.

29 U.S.C. 653(b)(1).

   2. Petitioner is a construction company that contracted with the
Department of Defense's Army Corps of Engineers to perform flood
control work on a section of Mill Creek in Cincinnati, Ohio.  Pet.
App. 2a, 3a, 10a.  The Corps had authority over the Mill Creek flood
control project (id. at 13a) by virtue of its statutory mandate under
the Flood Control Act, 33 U.S.C. 701 et seq., and its contract with
the owner of the property (Pet. 3).

   The Corps' contract with petitioner required petitioner to comply
with OSHA's Safety and Health Regulations for Construction, 29 C.F.R.
Pt. 1926, and OSHA's general Occupational Safety and Health Standards
applicable to construction, 29 C.F.R. Pt. 1910.  Pet. App. 11a-12a;
see 48 C.F.R. 52.236-13.  The contract also required petitioner to
take any "additional measures" to ensure job site safety that the
Corps determined to be reasonably necessary.  Pet. App. 11a-12a;  48
C.F.R. 52.236-13.  The Corps had the right under the contract to
inspect petitioner's work and to issue stop work orders if safety or
other contractual problems arose, Pet. 3, but did not have OSHA's
statutory authority to assess penalties, require abatement, or seek
injunctive relief.

   The events that gave rise to this case began on October 21, 1986,
when an accident occurred at the Mill Creek site.  On that day, one of
petitioner's trucks came in contact with energized overhead power
lines, causing injury to several employees.  Pet. App. 4a, 10a.

   Two days later, on October 23, 1986, OSHA began a comprehensive
inspection of petitioner's activities at the Mill Creek site.  Pet.
App. 4a.  This inspection was mandated under OSHA's then-established
procedure of instituting a comprehensive site inspection to
investigate any accident involving a "high-hazard industry," as OSHA
had determined the construction industry to be.  Ibid.  The Corps
consented to this comprehensive inspection, but petitioner did not,
insisting instead that OSHA limit its inspection to the immediate area
of the accident.  Id. at 10a, 11a.  OSHA conducted only a limited
inspection that day, and later secured a warrant allowing a complete
inspection.  Id. at 10a.

   Petitioner thereupon filed motions in federal district court to
stay execution of the warrant and to quash the warrant.  Pet. App.
9a-10a.  In addition, petitioner filed an action for declaratory and
injunctive relief against future OSHA inspections of the project, and
all these matters were referred to the same magistrate.  Id. at 10a.
The magistrate stayed execution of the warrant pending a hearing.
Ibid.

   3. After a hearing, the magistrate recommended dismissal of
petitioner's action for declaratory and injunctive relief.  Pet. App.
9a-15a.  He also lifted the stay of execution of the warrant and
declared that the motion to quash the warrant was moot.  /2/

   The magistrate rejected petitioner's argument that Section 4(b)(1)
of the OSH Act, 29 U.S.C. 653(b)(1), preempted OSHA regulation of
petitioner's activities.  The magistrate determined that Section
4(b)(1) did not apply because in this case the Corps was not
exercising statutory authority "pursuant to enabling legislation the
purpose of which was to affect occupational safety and health." Pet.
App. 13a.  In so ruling, the magistrate relied on several decisions of
the Occupational Safety and Health Review Commission.  In particular,
he noted that Luhr Bros., 5 O.S.H. Cas. (BNA) 1970 (1977), presented
"a situation similar to the instant case" and held that Section
4(b)(1) did not preempt OSHA regulation of a subcontractor working on
a Corps flood control project.  Pet. App. 14a.

   The magistrate also determined that the Corps had authority over
the Mill Creek flood control project and so could give valid consent
to OSHA's inspection of the site despite petitioner's objection.  Pet.
App. 12a-13a.  The magistrate accordingly concluded that OSHA could
complete its inspection of the site, adding that the inspection
"should be completed within six months of this order." Id. at 14a.

   On November 20, 1987, the district court adopted the magistrate's
factual findings and legal determinations and dismissed petitioner's
action.  App., infra, 4a-5a.

   On March 14, 1988, the court of appeals granted petitioner's motion
for voluntary dismissal of its appeal from the district court's order.
 App., infra, 6a.

   4. While petitioner was litigating OSHA's inspection authority in
district court, OSHA sought enforcement of the citation it had issued
against petitioner based on the limited inspection of the accident
site that petitioner had permitted.  After a hearing, a Commission ALJ
vacated the citation on May 3, 1988.  Pet. App. 16a-29a.  In that
order, the ALJ rejected as "without merit" petitioner's arguments that
Section 4(b)(1) preempted OSHA's jurisdiction and that the Corps had
no authority to consent to an OSHA inspection.  Pet. App. 26a.  The
ALJ did not discuss the basis for rejecting those arguments "because
all items of the citation have been vacated." Ibid.

   5.a. After petitioner had voluntarily dismissed its appeal from the
district court decision, OSHA again obtained the Corps' consent to
complete the comprehensive inspection of petitioner's operations that
was interrupted by the district court litigation.  Pet. App. 4a-5a.
Petitioner again sought a stay of the inspection from the same
district court magistrate.  Pet. 5.  The magistrate again entered a
temporary stay halting the inspection and later lifted that stay.  The
order lifting this second stay was entered on June 7, 1988.  Ibid.

   In his June 7, 1988 order, the magistrate held that OSHA continued
to have valid consent from the Corps to complete its inspection of the
Mill Creek site.  App., infra, 2a.  The magistrate rejected
petitioner's contentions that OSHA was stripped of authority to
complete its inspection by (1) the vacatur of OSHA's citation to
petitioner and (2) the expiration of six months after the magistrate's
March 11, 1987 order.  Ibid.  With regard to the second contention,
the magistrate concluded that the six-month period set in his earlier
order ran from March 14, 1988, the date on which the court of appeals
dismissed petitioner's appeal of the magistrate's earlier order (as
adopted by the district court).  Ibid.

   b. On June 10, 1988, after another hearing, the district court
affirmed and adopted the magistrate's June 7, 1988 order.  Pet. App.
3a-8a.

   The court found that OSHA's renewed inspection was consistent with
the Corps' consent and with a general administrative plan.  Pet. App.
5a.  Based on these findings and on the magistrate's "reasonabl(e)
interpret(ation)" of his March 1987 order authorizing the renewed
inspection (id. at 7a), the court held that the inspection did not
violate the Fourth Amendment or the OSH Act.  The court cited three
bases for its Fourth Amendment holding:  that the inspection was
conducted pursuant to (1) the valid consent of the Corps;  (2) a
general administrative plan;  and (3) "the equivalent of a warrant,"
namely, the magistrate's March 1987 order.  /3/ Id. at 5a-7a.  The
second basis justified the court's holding (id. at 6a) that the
inspection likewise complied with the OSH Act.

   The court did grant petitioner some relief on its motion for a
stay.  Specifically, the court ordered that OSHA limit its inspection
to "plain sight" and complete the inspection within five days.  Pet.
App. 7a.

   6. The court of appeals consolidated appeals by petitioner from the
ALJ's May 3, 1988 decision on the Section 4(b)(1) and consent issues
and the district court's June 10, 1988 order.  In a brief per curiam
opinion, the court of appeals found "no error by either the
administrative law judge or the district court warranting reversal"
and therefore affirmed both decisions.  Pet. App. 2a.

                               ARGUMENT

   The court of appeals' decision is correct and does not conflict
with any decision of this Court or any court of appeals.  Further
review is therefore not warranted.

   1. Petitioner renews its contention (Pet. 7-10) that Section
4(b)(1) of the OSH Act, 29 U.S.C. 653(b)(1), preempts OSHA regulation
of petitioner's activities.  The text of Section 4(b)(1) defeats this
contention, for it imposes two statutory conditions for preemption,
neither of which is met here.

   Section 4(b)(1) provides that the Act does not apply to working
conditions

      with respect to which other Federal agencies * * * exercise
      statutory authority to prescribe or enforce standards or
      regulations affecting occupational safety or health.

29 U.S.C. 653(b)(1).  In accordance with its terms, Section 4(b)(1)
has been uniformly construed by lower courts to apply only when a
coordinate agency (1) has "statutory authority to prescribe or enforce
standards or regulations affecting occupational safety or health";
and (2) actually exercises this authority.  Ensign-Bickford Co. v.
Occupational Safety & Health Review Comm'n, 717 F.2d 1419, 1421 (D.C.
Cir. 1983), cert. denied, 466 U.S. 937 (1984);  PBR, Inc. v. Secretary
of Labor, 643 F.2d 890, 896 (1st Cir. 1981);  Columbia Gas of Pa.,
Inc. v. Marshall, 636 F.2d 913, 915-916 & n.7 (3d Cir. 1980);
Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d
1161, 1166-1169 (D.C. Cir. 1975).  Petitioner does not, and cannot,
cite any statute or regulation to show that either of these two
conditions has been met in this case.  See Pet. 7-10.

   a. The first condition of Section 4(b)(1) requires that a statute
invest an agency with authority to prescribe health or safety
standards either expressly or by necessary implication.  Congress
could easily have drafted that provision to apply whenever an agency
incidentally regulated worker safety pursuant to a statutory
delegation that did not itself relate to worker safety.  That Congress
did not do so evidences an intent "to apply OSHA forthwith across the
board, but to provide that regulation might be preempted by other
agencies with comparable authority." Baltimore & O.R.R. v.
Occupational Safety & Health Review Comm'n, 548 F.2d 1052, 1054 (D.C.
Cir. 1976) (emphasis added).  /4/

   The Army Corps of Engineers has no statutory authority comparable
to OSHA's.  In this case, the Corps was acting under its legislative
authority to carry out flood control projects and under the Department
of Defense's authority to contract with private persons for services.
Flood Control Act, 33 U.S.C. 701 et seq.; Armed Services Procurement
Act of 1947, 10 U.S.C. 2301 et seq.; see also 10 U.S.C. 3013
(responsibilities of Secretary of the Army).  As the magistrate
stated, the flood-control legislation "does not address the protection
of contractor employees who are actually engaged in the conduct of
flood control rather than sharing its benefits." Pet. App. 14a
(quoting Luhr Bros., 5 O.S.H. Cas. (BNA) 1970, 1974 (1977)).  And as
the Review Commission observed in the closely analogous case of Luhr
Bros., 5 O.S.H. Cas. (BNA) at 1973, the purpose of defense-procurement
authority "is obviously to standardize and to make efficient Defense
procurement procedures.  Any benefits of job safety and health are at
best incidental." See also Paul v. United States, 371 U.S. 245,
250-263 (1963) (primary purpose of predecessor procurement statutes
was to secure contracts that were most advantageous to government).
/5/

   Rather than identify a statutory source of authority, petitioner
relies on the Corps' authority under its contract with petitioner.
See Pet. 8.  This reliance is misplaced, because the Corps' contract
right to require site-specific work procedures and inspect
petitioner's work site for compliance with them clearly is not an
"exercise (of) statutory authority to prescribe or enforce standards
or regulations." 29 U.S.C. 653(b)(1) (emphasis added).  To conclude
otherwise would not only contradict the text of Section 4(b)(1);  it
would also force the armed services to shoulder OSHA's mandate "to set
mandatory occupational safety and health standards," 29 U.S.C.
651(b)(3), thereby diverting the services from their express statutory
mission, in this setting, to ensure "that property and services be
acquired * * * in the most timely, economic, and efficient manner." 10
U.S.C. 2301(a).  /6/

   b. For similar reasons, petitioner cannot show that with respect to
petitioner's activities the Corps has "prescribe(d) or enforce(d)
standards or regulations affecting occupational safety or health," 29
U.S.C. 653(b)(1).

   The Corps' ability to impose and enforce health and safety
requirements in this case derived solely from its contract with
petitioner.  The contract incorporates OSHA regulations and the Corps'
safety and health manual and requires petitioner to comply with them.
Pet. 3;  Pet. App. 11a-12a.  /7/ The Corps' ability to enforce these
requirements is limited to the issuance of stop work orders.  Pet. 3.

   As the lower courts have held, such contractual provisions do not
constitute the "prescri(ption) or enforce(ment) (of) standards or
regulations." For example, in Ensign-Bickford Co. v. Occupational
Safety & Health Review Comm'n, 717 F.2d 1419, 1421 (1983), cert.
denied, 466 U.S. 937 (1984), the D.C. Circuit held that the Department
of Defense did not preempt OSHA regulation when it imposed on a
contractor the contractual obligation to comply with a Department
safety manual.  Similarly, in PBR, Inc. v. Secretary of Labor, 643
F.2d 890, 896-897 (1981), the First Circuit rejected the contention
that Section 4(b)(1) required preemption when the Secretary of
Transportation used a consulting engineer to draft safety rules that
were incorporated in procurement contracts.  The First Circuit stated,
in language equally applicable here, that for purposes of Section
4(b)(1) "an agency may not 'promulgate' a 'rule' through contractual
arrangements." 643 F.2d at 897.

   The Corps' reliance upon OSHA standards and enforcement
responsibilities in prescribing petitioner's contract obligations
reflects the practice of the armed services with regard to defense
contractors.  The terms of the contract with petitioner were governed
by the Department of Defense's Federal Acquisition Regulations System,
48 C.F.R. 1.000 et seq.  The System in pertinent part relies in turn
on OSHA regulations rather than on a separate body of safety and
health requirements for defense contractors.  See 48 C.F.R. 52.236-13.
 As such, the System reflects the Department's position that with
respect to such contractors OSHA remains the agency responsible for
enforcing the OSH Act.  See Luhr Bros., 5 O.S.H. Cas. (BNA) at 1974.

   In sum, neither the contract nor the procurement regulations under
which the contract was executed provide any basis for concluding that
Congress or the Defense Department intended to preclude OSHA
regulation of the activities at issue here.

   c. Contrary to petitioner's assertion (Pet. 9), the holdings below
that petitioner is subject to OSHA regulation do not implicate
Congress's concern in the Act to avoid "regulatory duplication,"
Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 392 (5th Cir. 1976),
cert. denied, 434 U.S. 874 (1977).  The inspection that gave rise to
this case was carried out solely by OSHA, with the Corps' consent.
See Pet. 4-6.  Petitioner thus has not been subjected to conflicting
requirements at the hands of the two agencies.  Cf. U.S. Air, Inc. v.
Occupational Safety & Health Review Comm'n, 689 F.2d 1191 (4th Cir.
1982) (preemption found where FAA regulation required doors of airline
lounge be closed but OSHA regulation required they be kept open).  /8/

   In any event, "avoiding duplication was a secondary purpose of the
(OSH Act's) scheme." Southern Pac., 539 F.2d at 392.  This purpose
cannot override the primary purpose of the Act to "assure so far as
possible every working man and woman in the Nation safe and healthful
working conditions," 29 U.S.C. 651(b).  Acceptance of petitioner's
contract-based arguments would have this effect, for it would "dilute,
without congressional approval, the safety standards and remedies
contained in the Act." Ensign-Bickford Co., 717 F.2d at 1421.

   2. Petitioner disputes (Pet. 11-13) the holdings of the courts
below that OSHA carried out its two inspections of the Mill Creek work
site with the "valid third party consent" of the Corps.  Pet. App. 6a;
 see also id. at 12a.  Petitioner does not dispute the well settled
principle underlying these holdings:  that a warrantless search by law
enforcement officers is valid under the Fourth Amendment if based on
the "consent of one who possesses common authority over (the searched)
premises." United States v. Matlock, 415 U.S. 164, 170 (1974);  see
also Illinois v. Rodriguez, 110 S. Ct. 2793 (1990) (warrantless search
is valid if officers, at time of entry, reasonably believe third party
has common authority).  Rather, petitioner makes the fact-bound
contention that the Corps lacked "common authority" over the Mill
Creek site.  Pet. 11-13.  This contention is mistaken.

   "'(C)ommon authority' rests 'on mutual use of the property by
persons generally having joint access or control for most purposes,'"
Rodriguez, 110 S. Ct. at 2797 (quoting Matlock, 415 U.S. at 171 n.7),
"so that it is reasonable to recognize that any of the co-inhabitants
has the right to permit the inspection in his own right and that the
others have assumed the risk that one of their number might permit the
common area to be searched." Matlock, 415 U.S. at 171 n.7.

   The courts below correctly concluded that the Corps had "common
authority" over the Mill Creek site.  As detailed in the petition
(Pet. 3), in its contract with petitioner the Corps retained the right
to inspect the work site.  Moreover, the Corps exercised this right;
it conducted daily inspections of work progress as well as periodic
safety surveys.  Ibid.  It is true, as petitioner notes (Pet. 3, 12),
that the Corps did not own the site, but neither did petitioner.
Petitioner's right to occupy the site derived solely from its contract
with the Corps, which in turn derived its right of access directly
from the property owner.  See Pet. 3.  In this respect, petitioner was
in the same situation as a subcontractor, with the Corps functioning
as a general contractor.  As such, petitioner had no reasonable
expectation of privacy, because it "assumed the risk" that the Corps
might permit a third party to search the site.  Matlock, 415 U.S. at
171 n.7.  /9/ For these reasons, the courts below properly concluded
that the Corps had authority to consent to OSHA's inspections.

   This conclusion is not altered by the fact that petitioner objected
to the inspections.  See Pet. 13.  "The touchstone of Matlock's third
party consent analysis is that any reasonable expectation of privacy
in common areas is lost once joint occupants assume the risk that a
co-occupant will allow access to the common areas." Donovan v. A.A.
Beiro Constr., 746 F.2d 894, 899 (D.C. Cir. 1984).  "The additional
fact that the interested party has denied consent does not increase a
reasonable expectation of privacy." J.L. Foti Constr. Co. v. Donovan,
786 F.2d 714, 717 (6th Cir. 1986) (internal quotation marks omitted)
(quoting United States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977),
cert. denied, 435 U.S. 932 (1978)).  /10/

   In any event, petitioner's contention regarding the Corps' "common
authority" reflects only petitioner's disagreement with factual
findings by the courts below concerning the Corps' control of the Mill
Creek site.  Such a fact-bound dispute does not warrant this Court's
review.

   3. This Court likewise should not grant review to consider
petitioner's erroneous contention (Pet. 14-17) that OSHA violated the
Fourth Amendment and the OSH Act when it completed its comprehensive
inspection of the Mill Creek site in June 1988.

   We have shown above that OSHA's inspections did not violate the
Fourth Amendment, because they were carried out with the valid consent
of the Corps.  Since OSHA had consent for these inspections, it did
not need to demonstrate probable cause justifying issuance of a
warrant.  See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);
A.A. Beiro Constr., 746 F.2d at 903-904.  /11/

   Furthermore, as the courts below held, "probable cause" did exist
for OSHA's June 1988 inspection.  Pet. App. 6a.  The "probable cause"
standard, this Court has made clear, is met when OSHA inspects a work
site "on the basis of a general administrative plan." Marshall v.
Barlow's, Inc., 436 U.S. 307, 321 (1978).  That was the case here:
OSHA conducted the June 1988 inspection pursuant to an administrative
policy then in effect that called for a comprehensive inspection
whenever an accident occurred in a "high-hazard industry," as OSHA
considered the construction industry to be.  Pet. App. 4a, 6a.

   For the same reason, OSHA's June 1988 inspection complied with the
OSH Act.  The inspection was conducted under an administrative plan
designed "to carry out the purposes of th(e) (Act)," 29 U.S.C. 657(a),
and occurred at a "workplace or environment where work is performed by
an employee of an employer." /12/

   In sum, the courts below correctly held that OSHA's June 1988
inspection did not violate the Fourth Amendment or the OSH Act.  Pet.
6a.  See A.A. Beiro Constr., 746 F.2d at 898;  In re Cerro Copper
Prods. Co., 752 F.2d 280 (7th Cir. 1985).  /13/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   STEVEN J. MANDEL

      Deputy Associate Solicitor

   EDWARD D. SIEGER

      Attorney Department of Labor

   OCTOBER 1990

   /1/ The magistrate's recommended decision that petitioner includes
in its appendix (Pet. App. 9a-15a) resulted in a district court order
(App., infra, 4a-5a) dismissing petitioner's action.  Petitioner
appealed the district court's order of dismissal and later dismissed
its appeal.  The court of appeals' order of dismissal (App., infra,
6a), the district court order, and the magistrate's recommended
decision are not officially reported, but the district court's order
appears at Empl. Safety & Health Guide (CCH) Paragraph 28,104.
Neither the magistrate's recommended decision nor the two court orders
referred to in this footnote are the bases for the instant petition.

   /2/ The latter ruling appears to have been based on the fact that
the search warrant was not used.  Pet. App. 11a, 14a.  The magistrate
thus had no occasion to address the validity of the warrant.

   /3/ In connection with the third basis for its decision, the court
held that OSHA carried out its inspection within the six-month period
established in the magistrate's order of March 11, 1987, because that
period ran from March 14, 1988, the date petitioner's appeal of that
order was dismissed.  The court observed that to hold otherwise would
"penalize (OSHA) for voluntarily suspending its administrative
procedure pending termination of litigation involving the validity of
that procedure." Pet. App. 7a.

   /4/ The intent of Congress to impose this condition is confirmed by
the legislative history of Section 4(b)(1).  See, e.g., Staff of
Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d
Cong., 1st Sess., Legislative History of the Occupational Safety and
Health Act of 1970, 997 (remarks of Rep. Steiger);  id. at 1019
(remarks of Rep. Daniels);  id. at 1204 (remarks of Rep. Perkins)
(Comm. Print 1971).

   /5/ In Luhr Bros. and two other decisions, the Review Commission
has held that regulations promulgated pursuant to general statutory
procurement authority do not, by virtue of Section 4(b)(1), preempt
OSHA regulation.  Haas & Haynie Corp., 4 O.S.H. Cas. (BNA) 1911
(1976);  Gearhart-Owen Indus., Inc., 2 O.S.H. Cas. (BNA) 1568 (1975).

   /6/ Petitioner asserts (Pet. 9) that the Corps can effectively
enforce the OSH Act without OSHA's assistance, pointing to the ALJ's
vacatur of the citation that OSHA issued after its limited inspection
of the October 1986 accident.  Petitioner admits, however (Pet. 6 &
n.3), that OSHA's complete inspection in June 1988 resulted in new
citations that were affirmed by an ALJ.  Secretary of Labor v.
National Engineering & Contracting Co., OSHRC No. 88-2059 (ALJ Oct.
31, 1989), appeal pending, No. 90-3080 (6th Cir.).

   /7/ Petitioner does not contend that the Corps' safety manual is a
"standard()" or "regulation()" within the meaning of Section 4(b)(1).
Cf. PBR, 643 F.2d at 896-897 (safety rules formulated by engineering
consultant for government contractor were analogous to internal safety
regulations and therefore were not "standards" or "regulations" under
Section 4(b)(1)).

   /8/ Moreover, petitioner is in no position to complain about
"double exposure," since it agreed in its contract with the Corps to
be subject to both OSHA standards and the Corps' safety and health
manual.  Pet. App. 12a.

   /9/ See also J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714,
716-717 (6th Cir. 1986) (general contractor has authority to consent
to OSHA inspection of area in which subcontractor worked);  Donovan v.
A.A. Beiro Constr. Co., 746 F.2d 894, 898-901 (D.C. Cir. 1984) (owner
with full right of access may permit OSHA inspection of prime
contractor's work activities).

   /10/ Moreover, petitioner did not raise in the court of appeals the
issue whether a third party's consent to a search is valid over the
objection of a co-occupant.  Petitioner provides no reason why this
Court should depart from its practice of not granting review in this
situation.  See Delta Air Lines, Inc. v. August, 450 U.S. 346, 362
(1981);  Youakim v. Miller, 425 U.S. 231 (1976).

   /11/ Petitioner concedes (Pet. 11) that OSHA "relied exclusively
upon consent granted to it by the Corps to tour the premises."

   /12/ There is no merit to petitioner's suggestion (Pet. 15) that
OSHA was stripped of authority to seek the Corps' consent for
completion of OSHA's inspection when the ALJ vacated the citation
issued on the basis of OSHA's preliminary inspection.  As the courts
below found (Pet. App. 4a) and petitioner does not dispute, OSHA
returned to the Mill Creek site in June 1988 to complete the
comprehensive inspection that it had begun in October 1986.  In doing
so, as noted in the text, OSHA was carrying out the administrative
policy then in effect.  The intervening vacatur of the earlier
citation did not render effectuation of this policy unnecessary, as is
clear from the fact that OSHA issued additional citations upon
completing the inspection.  Pet. 6 & n.3.

   /13/ Because the June 1988 inspection complied with the
requirements of the Fourth Amendment and the OSH Act, petitioner's
assertion (Pet. 16) that the inspection was not "further validated by
the Magistrate's Order of March 11, 1987" is beside the point.

   APPENDIX