"Is a human life worth $10?" the U.S. Chamber of Commerce lawyer said. "Of course it is. But when you start going up the ladder, you have to start making some judgements, no matter how cold or callous it sounds."
The lawyer, Mark A. de Bernardo, was explaining, with more candor than most, industry's reasons for trying to rein in government regulation of hazardous substances in the workplace, an effort before the U.S. Supreme Court in the form of a challenge to standards for cotton-dust exposure.
"There are finite rescources," he said, "only so much profit, so much capital. It certainly is in the best interest of everyone that these finite resources be expended in the most efficient manner."
Lacey Wright, a retired textile worker suffering from brown-lung disease, is a living illustration of the proposition that one man's "most efficient manner" can be another man's hell.
"I've got two hands and two good feet," says Wright of his disease. "But I can't breathe. It feels like there's a thick rope tied tight around my chest and I can't get any air in there."
The case before the Supreme Court is about the health of future Lacey Wrights and what that health is worth.Should it be preserved, regardless of the cost to industry, or does there come a point, as de Bernardo put it, when "some judgements" have to be made?
The case concerns cotton dust and brown-lung disease (byssimosis) in the textile industry. But it goes well beyond that and may be, in fact, the controversy of controversies in the field of government regulation. It represents an attack by dozens of industries on the agency that has become business' symbol of overregulation -- the Occupational Safety and Health Administration. So the ruling will affect millions of workers in thousands of factories.
And, in attacking the assumptions under which OSHA regulates hazardous substances, it seeks to cool once and for all the regulatory fervor -- a fervor industry considers oblivious to economics -- that gave birth to that and other activist regulatory agencies that deal with human lives.
OSHA imposes stringent restrictions on exposure of workers to hazardous substances. Its decisions are based on "the best available evidence" about those hazards. That evidence, especially when the diseases take a generation to appear, is often skimpy. The question for the agency has been whether to hold back because not enough is known or to take the maximum precautions because not enough is known. OSHA has chosen the latter course, with only minimal attention to the costs to the regulated industries.
The industry attack is designed to force the agency to measure those costs, measure the benefits to the workers threatened, and somehow make sure the two are "reasonably" related before imposing a standard. Cost-benefit analysis, so useful in buying machinery or making investments, is what it's called.
To industry, it is only good economic sense. OSHA and other agencies, it believes, have been operating in an economic vacuum, unconcerned about the impact of its regulations on the health of business. The new approach, it is hoped, would inject a heavy dose of fiscal reality into the process.
To critics of industry's crusade, the cost-benefit approach may, at best, further obstruct and delay an already cumbersome procedure for establishing standards (the hearings and decision-making for the cotton-dust standards took two years, not including court time) and, at worst, undermine regulation.
For the precision that the court may require, in the relatively unexplored reaches of chemistry and medicine, may be unobtainable.
In addition, they question the morality of even suggesting that there is a point, a dollar figure, beyond which it ought to be considered unreasonable to save a life or a lung.
Cotton dust, it is believed, comes not from the downy white boll but from the trash of the plant: the leaves and the stem. The trash is visible as brown specks in the cotton when it first comes into a mill. As the cotton is cleaned and combed, only microscopic particles remain.
Industry physicians believe that the further along the plant, through cleaning, carding, twisting, winding, spinning and weaving -- the cleaner it gets, so that by the time it is on the looms, it is harmless. That claim is disputed by textile workers.
Three hundred years ago, an Italian physician first publicized the "continual coughs" that plagued those "who hackle in the flax and hemp." The cause, wrote Bernadine Ramazzini, was a "foul mischievous powder" -- cotton dust.
The disease can take a decade or longer to develop, the result of a gradual narrowing of the victim's airways to a fraction of their orginal diameter. As in emphysema, breathing becomes harder and harder until taking out the trash is like running a marathon. Sex, work, any exertion become out of the question. The shortage of oxygen can and sometimes does lead to heart failure and early death.
For the victims, these are the costs:
"It completely eliminated the life I had known," said Wright, 76, who was forced by the disease to stop working in the textile mills in 1966. "I used to work from the time I got up until the time I went to bed. After I got it, sitting around was all I could do.
Wright speaks in the gravel voice common to the advanced stages of brown-lung. When he speaks, he never knows when what was intended to be a sentence will get drowned in the sputum in his respiratory system and come out as a wheeze.
"You hurt in your chest all the time," said Maude Oldham, 56, another early retiree from the mills. "You feel real weak. You cough so much sometimes you have to gasp for breath in between the coughs.
"Before I got sick, I could ride a bike, jump rope, do my canning, my gardening, go camping. Anything my kids could do, I could do. In the last two years, about all I can do is make dinner and lay in bed until I fall asleep."
The controversy over the substances regulated by OSHA thrives on uncertainties. OSHA's inability to assess risks with precisions, to say how much exposure is safe and how much unsafe, makes its standards vulnerable. The cotton dust debate is typical.
The industry as a whole estimates that fewer than 1 percent of its 800,000 workers exposed to cotton dust get byssinosis. Estimates by the Brown Lung Association and other advocates of maximum, regulation range as high as 20 to 30 percent.
At least one company, Dan River, questins whether the disease even exists, following a study showing comparable incidences of byssinosis-like symptoms in its 100 percent polyester plants, the ones where there is no cotton dust.
Many textile workers live in North Carolina, where tobacco competes with textiles as the state religion and most of them smoke. So it is hard to separate the effects of smoking from the effects of cotton dust.
Among those who acknowledge cotton dust as the cause, no one seems certain just what it is in the "foul mischievous powder" that does the damage.
Behind industry's legal arguments, there is a deep sketpticism about the disease -- even a sense of injustice -- that penetrates down to the plant-manager level.
"My mother has a respiratory problem" said Larry Mills, manager of Burlington Industries' Ramseur plant in North Carolina. "She never worked in textiles. But if she did, she'd probably be getting compensation now for brown-lung disease. There's all kinds of problems that you're born with. And there's smoking. And the air outside can do more damage to you than the air inside some of our mills."
At Burlington's Mooresville, N.C., plant, manager John Duncan walks to the point where the cleaning of the cotton is basically completed and the spinning begins. "See that line," he said, stepping over the division between the two sections. "There's probably no danger once you pass that point. But they [OSHA] are requiring it to meet the same dust standard as everywhere else."
It is from such perceptions that the cost-benefit argument has evolved.
The 1970 act setting up OSHA instructed the agency to formulate a standard for exposure "which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employe will suffer material impairment of health or functional capacity." It says nothing specifically about weighing costs against benefits.
OSHA reduced the existing permissible exposure levels for cotton dust in 1978 from 1,000 micrograms per cubic meter of air to 200 for those sections of the mills considered most hazadous. The 200-microgram level is roughly equivalent to a grain of salt in a box of air a meter long on each side.
The changes required to meet this standard varied from company to company. But even the largest, Burlington, estimates that before 1970, for example, the levels in many plant areas were five to 10 times the new requirement.
The equipment required for such a cleanup is a wonder to behold: giant vacuum cleaners that travel automatically up and down the rows of machinery; special humidifiers that keep down the dust; networks of tubing that allow cotton waste to be transported throughout the plant without being touched by human beings.
The cost is undeniably high, though the estimates vary as radically as the studies of byssinosis. Industry's highest estimate for compliance is $1.1 billion, the lowest $550 million.
The standards were immediately challenged in court. Industry, through the American Textile Manufacturers Institute, argued that meeting the standards was too expensive, that the benefits were uncertain, that there were other, cheaper ways to go about it, such as regular screening of employes and removal from dangerous areas while the disease was reversible.
The central argument was the same one made by industrial users of benzene as they tried to get their exposure standards soften last year in the Supreme Court. (The court did narrowly agree that OSHA needed to have more evidence before imposing a stricter standard, that it needed to show that there was a "significant risk" presented. The justices did not decide the cost-benefit argument.)
OSHA, the textile industry argued, did not establish that the costs of meeting the standards were reasonably related to the benefits.
What is "reasonably"? How are the "benefits" defined? Who is to be believed when the figures for "cost " are put forward? Cost-benefit analysis, elevated to a near science when simple numbers are involved, is in its infancy as a regulatory tool.
Its opponents hope it stays that way, for even as a mere hypothesis it sends chills up their spines. It is, they say, "immoral."
The Department of Labor, at the request of Congress, did a cost-benefit study of the cotton dust regulations, and it illustrates the pitfalls. Using certain studies, the government estimated that 83,610 workers -- or 14 percent of those exposed to cotton dust -- could get byssinosis. The OSHA standards, it concluded, would cost industry about $655 million to implement. That would mean an expenditure by industry of about $8,000 per case avoided.
These standards, it seems, sound "reasonable."
But using its studies, industry has estimated that only 1 percent of the workers will get byssinosis. Implementation of the standards might cost $1.1 billion, instead of $655 million. By industry's analysis, each case avoided would cost over $100,000.
That sounds less reasonable.
The real dilemma, according to critics, is that neither side is capable of quantifying the benefits. They can add up the man-hours lost and the disability payments, but no one has yet been willing to put up a dollar sign in front of the coughing, wheezing, the melancholy and, potentially, the death that may enter the house of a brown-lung victim.
"It is an arid exercise in controlling lives," says George Taylor, the AFL-CIO's director of occupational safety and health. "You don't make policy concerning human lives based on dollar costs. That lets systems economists, any that have the gall, become the decision makers.
"If there is a reasonable belief that a large number of people are going to be put at risk, you try to prevent it. You don't wait until you can count the last pair of lungs on the dissecting table."
"It's done every single day," de Bernardo, the lawyer for the Chamber of Commerce, which has filed an amicus cruiae brief in the case, said of cost-benefit analysis involving lives. "When we decide how many police or firemen we're going to hire, or how many ambulances we're going to buy or whether or not to modernize roads, all of these are decisions concerning health and safety that are tempered by considerations of costs and benefits.
"There's no question that lives were saved by reducing the speed limit to 55 miles per hour. But we could save even more lives by lowering it to 25 or 35. Society is not willing to pay the price. Society has weighed the costs and benefits and it's not willing to pay the price."
To do otherwise, industry argues, is to regulate in an economic vacuum, to impose on American business such a burden that it can no longer compete either with foreign commerce or with inflation.
U.S. Circuit Court of Appeals Judge David Bazelon ruled against the industry in October 1979. "The record is massive and unweidly," he wrote for a three-judge panel. " It reveals numerous medical and technical issues in need of continued study.
"Congress, however, has made it clear that OSHA must protect every worker from the risks of material health impairment due to occupational exposure to hazardous materials. OSHA is constrained only by the requirement that its standards be technologically and economically feasible for the regulated industries."
It is all right if a few firms are forced to shut down, he said, in a parting shot that enraged the industry. But so long as the existence of the industry itself is not threatened, he said, the standards may be imposed.
The Supreme Court is expected to rule on the Bazelon opinion, along with similar questions involving the Environmental Protection Agency and the federal office that regulates strip mining, by late spring or early summer.