Dangerous Dust

Employers must pay the cost

It often begins with wheezing and shortness of breath. Eventually it can lead to death. Byssinosis (nicknamed "brown lung" disease) is caused primarily by cotton dust that fills the air in textile plants. As many as 150,000 employed and retired cotton-mill workers may suffer from some form of the ailment. In the cotton-mill country of the South, a sardonic slogan addressed to consumers is "Blue jeans for you, brown lung for us."

Three years ago, the Occupational Safety and Health Administration (OSHA) imposed stringent limits on the amount of cotton dust that manufacturers could have in their plants. The industry objected that the ventilation equipment and other measures required by OSHA's order would run up a crippling tab of $2 billion (OSHA's estimate: $650 million). Turning to the courts in an attempt to get the standards modified, the industry argued that OSHA should have weighed the cost of compliance against the benefits.

After the case was argued before the Supreme Court this year, the textile manufacturers acquired a potent ally in President Reagan. In February, as part of his drive to deregulate U.S. industry, Reagan ordered a cost-benefit analysis of major Government rules. A month later his Secretary of Labor asked the Supreme Court not to decide the cotton-dust case because OSHA planned to reconsider the disputed standards.

Last week the court rebuffed both the Administration and the textile manufacturers. In a decision that could have considerable impact on many industries beyond textiles, the court ruled, 5 to 3, that the agency is not required to weigh costs against benefits when setting health standards dealing with toxic materials in the workplace.

The key to the decision was a four-word phrase that Congress used in the 1970 law that OSHA administers. The measure directed the agency to set standards assuring that "to the extent feasible," no worker would suffer material impairment of health from exposure to toxic substances, including cotton dust. By and large, OSHA read the word feasible to mean technologically possible, but the industry argued for a primarily economic definition. Wrote Justice William Brennan for the majority: "Congress itself defined the basic relationship between costs and benefits, by placing the 'benefit' of worker health above all other considerations save those making attainment of this 'benefit' unachievable." Brennan pointed out that Congress's goal in enacting the statute was to cut the tremendous losses suffered by American industry because of worker injury and disability. "The legislative history demonstrates conclusively," said Brennan, "that Congress was fully aware that the act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business."

The ruling, while a serious setback for the Reagan Administration's deregulation effort, is far from a death blow. James C. Miller III, who heads a White House deregulation task force, emphasized that the court's decision dealt only with the OSHA statute covering toxic substances. Indeed, Justice Brennan cited several regulatory laws, including ones on the environment, that specifically allow the Government to weigh costs against benefits. Now if the Administration wants to do the same thing with toxic substances in the workplace, it may have no choice but to ask Congress to amend the statute accordingly.

Some observers had expected the court to rule more favorably on cotton dust because of its decision last year striking down a limit on benzene vapors in factories. In that case, however, the court never reached the cost-benefit question, in part because four Justices concluded that OSHA had failed to show that the proposed standard was even necessary to assure worker health.

As for the cotton industry, Textile Analyst John Figh maintains that the decision "will not have one bit of effect on companies like Burlington, Milliken and Dan River," three major firms that are already well on their way to compliance with the new cotton-dust limits. In the four years allowed for complete compliance, the court's decision will probably weigh most heavily on small companies that lack the capital to clean up their mills. Meanwhile, it may create a competitive advantage for manufacturers of synthetics, since man-made fibers do not create a dust problem.

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