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UNITED STATES v. MCGEE INDUS.

January 21, 1977

UNITED STATES OF AMERICA
v.
McGEE INDUSTRIES, INC.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 The National Institute for Occupational Safety and Health (NIOSH), a sub-entity of the United States Department of Health, Education and Welfare, was created by Congress to effectuate the research policy underlying the Occupational Safety and Health Act of 1970 (OSHA). 29 U.S.C. §§ 651(b)(5), (6), (7) and 671. The United States, through NIOSH, sues to enforce an administrative subpoena duces tecum issued pursuant to 29 U.S.C. § 657(b) to the president of McGee Industries, Inc. (McGee). The petition for a court order directing McGee to produce the requested information will be granted, subject to the protective terms of such order.

 I.

 As stated, NIOSH is the legislatively created research mechanism of OSHA. In this capacity NIOSH developed a National Occupational Hazard Survey, a survey designed to obtain very basic information concerning the chemical substances employed in industry and to which American workers are exposed. The survey encompassed a statistical sample of 5,000 industrial facilities across the United States, as selected by the Bureau of Labor Statistics. NIOSH personnel visited these facilities, interviewed management, and posed a questionnaire concerning the types of products being used, the safety devices and procedures employed, the type of medical examinations being given, and made other inquiries. This information was to enable NIOSH to know in what industries hazardous substances are found, to what extent they are found, and how many workers are exposed to them. Unfortunately, the survey resulted in many instances in only brand or trade names being identified, without any description of chemical content. In order to ascertain the specific chemical content of these trade-named products, NIOSH employed a private firm, Auerbach Associates, to mail out requests to the respective manufacturers for this information. McGee, a small family-owned company with ten employees, manufactures for industrial use a variety of solid lubricants under certain trade names, and these products having been identified as being used in at least one of the 5,000 facilities surveyed, McGee became a target for information sought by NIOSH.

 On November 10, 1975, NIOSH issued a subpoena duces tecum directed to the president of McGee to appear and testify in connection with the survey. The subpoena also required the production of a document delineating

 
the identity of all chemical substances contained in the compound (present in amounts of 1 percent or greater by weight or volume) and the approximate concentration (within plus-minus 5%) of each substance.
 
1. Dry Lube -- McLube 108
 
2. McLube Dry Lube Coating
 
3. McLube No. 1720
 
4. McLube 1736
 
5. McLube 210
 
6. McLube 1711 Mold ...

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