In 1989 the legislature of the Commonwealth of Massachusetts unanimously passed the Toxics Use Reduction Act (TURA) as the result of extensive negotiations involving environmental activists, chemical companies, legislative leaders, and the administration. Signed into law by Governor Michael Dukakis, TURA was the first state law – and certainly one of the strongest - seeking broad implementation of pollution prevention (P2), a strategy contrasted with end-of-pipe pollution control. TURA established Toxics Use Reduction (TUR) as the preferred approach, reflecting a new trend in environmental policy. Within the next few years, nearly half the states in the country had passed laws to give effect to the commonly cited “hierarchy” of environmental protection: prevention first, recycling second, treatment third, and disposal as the last resort. Four new government entities were created to implement TURA, and the Massachusetts Department of Environmental Protection was directed to seek TUR in the conduct of its enforcement operations. TURA defined Toxics Use Reduction as:
In plant changes in production processes or raw materials that reduce, avoid, or eliminate the use of toxic or hazardous substances or generation of hazardous byproducts per unit of product, so as to reduce risk to the health of worker, consumers or the environment, without shifting risks between workers, consumers, or parts of the environment.
Scope of Act
The Act covered industrial facilities using large quantities of toxic materials and required public disclosure of the total amounts used (only New Jersey and Eugene, Oregon have similar requirements). TURA required each covered facility to pay a fee for toxics use, and to develop written toxics use reduction plans. Fee payments were routed to a dedicated fund, which paid for the establishment of an institute to perform research and education on how to prevent toxics use (the Toxics Use Reduction Institute, TURI); an office to provide free, on-site assistance to toxics users on how to reduce the use of toxics (Office of Technical Assistance for Toxics Use Reduction, OTA); an enforcement office in the Massachusetts Department of Environmental Protection (DEP) to ensure compliance with the Act and compile reports for public release, and an Administrative Council (located in the Executive Office of Environmental Affairs, EOEA) to oversee the program.
In 2000, the TURA offices produced an information release that summarized the results of the nine years of annual reporting data available at the time. Because the Act’s coverage had changed during that time, (chemicals were added and subtracted from the list defining covered toxics, and new industrial categories were added), a “Core Group” was defined to accurately track trends in use. The Core Group’s total toxic chemical use was 844.6 million pounds in 1990, and 800.2 million pounds in 1998, a decrease of 5%. However, during this time the Core Group also self-identified 40% increases in production. Adjusting for production, the Core Group of toxics-using companies reduced their toxics use, relative to the product they made, by 33%. The report calculated this as the equivalent of a reduction from 844.6 million to 567.5 million pounds – a 277.1 million pound reduction.
Toxics Use Reduction can be accomplished in either of two basic ways: one is to switch to a safer material – to stop using the toxic material. The other is to use the material more efficiently, with less waste. The reporting required by the Act included calculation of toxic “byproduct”, which is all amounts of the particular toxic used that does not become product. By comparing byproduct to product, a company can roughly measure the efficiency of its use of the toxic material. The byproduct figure, which includes the amount of chemical released to the environment through stack air emissions or water discharges, lost through fugitive evaporations or spills, or shipped as waste, is reported to the public, as well as incorporated into an index that shows trends over time.
From 1990 to 1998 byproduct (all waste from toxic use) fell from 106 million pounds to 78 million, a 26% reduction in absolute terms. In production-adjusted terms, the reduction was 48%, approximating the Act’s goal of a 50% reduction in toxic waste.
During the same period, the amount of toxics in product shipped by the Core Group increased by 9%, but fell in adjusted terms by 23%. The amount of Toxics Release Inventory on-site releases fell by 77% in absolute terms, 83% after adjustment, putting Massachusetts firmly in the top rank of states reducing TRI releases.
Requirements under TURA
TURA required that large quantity toxics users produce a plan for toxics use reduction, and every two years a summary report is provided to the public. One of the stated aims of TURA is to benefit the Commonwealth’s economy, and TUR planning is considered to benefit the company required to perform it. The aim of TURA was to strike a balance between the public’s rights concerning risks imposed by the presence of toxic chemicals, and business’ right to seek profits in a free enterprise system. Having companies do plans, that Massachusetts DEP inspectors could check to ensure execution, would provide the company with the freedom to continue its operations, while the public was assured that the company was making a good faith effort to reduce risks to the extent practicable. The idea of TURA planning is that no one wants toxic risks, wastes, or pollution; that businesses will eliminate them if they learn how to do so and how they will benefit by doing so; and that requiring TUR planning is a far less rigid and prescriptive approach than mandating specific reductions or changes in materials use.
Assistance given by TURA
In addition, the Act provided for the free, onsite, and confidential assistance of OTA, whose trained engineers could help companies do their TURA planning, or otherwise assist them in identifying options for reducing use. OTA’s “safe” and individually tailored assistance went beyond the traditional forms of agency compliance assistance, (typically broadcast to a group of covered entities (or all), and providing only limited assurance that a company revealing its problems will not be faced with penalties for violations). By the year 2000, over 1,000 companies had invited OTA onsite, and over 30% of those visited were no longer reporting under TURA. OTA has estimated that more than half of those visited implement its recommendations.
Under the Act, TURI also educated an entire class of consultants, known as Toxics Use Reduction Planners (TURPs). Each TUR plan had to be signed by a qualified TURP. A TURP could be licensed for signing plans by the TURP’s employing company (internal TURP), or for signing plans by any covered entity (outside TURP). Thus, a body of TUR expertise was created within many TURA-reporting companies, and within the consultant population serving the Commonwealth.
The TUR plan requirements also contained features that provided some assurance that the plans would be effective. Conventional pollution prevention planning at the time of enactment consisted of identifying alternatives to current toxics use practices. TURA also required that the full cost of current toxics use be assessed. This practice is alternatively known as Total Cost Assessment. It can also be performed by a method known as Activity-Based Cost accounting, and is a part of what is now referred to as Environmental Management Accounting. The TUR plan requirement of calculating the cost of current toxics use required the examination of costs typically subsumed under overhead, or falsely attributed to an Environmental, Health and Safety (EHS) office (in fact, the costs of waste the EHS staff handle are really created by the production department). The cost of toxics assessment caused companies to examine contingent and unquantifiable liabilities as well. Without a realistic understanding of how much current practice really costs, the identification of safer or "greener" alternatives often does not lead to their adoption. The more accurate comparison provided by the cost of toxics assessment provided a much greater chance that sensible changes, once identified, would be implemented.
Although TURA did not require that any company make any particular change in its operation, (did not, remarkably, require that a single pound of toxics use actually be reduced), a “good faith” effort was required, and DEP does inspect to ensure that each element of planning is performed. The public is able to review plan summaries, which include the measuring of trends over time, and annual reporting of use and byproduct totals. The combination of planning and reporting, with attendant media attention, along with the disincentive of paying fees for toxics use, have provided reasons for companies to take the planning requirement seriously, and use it to achieve reductions.
In addition, the TURA program conducted an unusual amount of public outreach and negotiation. New regulations, policy, or guidance issued under the law were produced with extensive public consultation. Workgroups were formed for receiving advice from the public, from environmental advocates, and from the regulated population on nearly every aspect of the law, activities that went well beyond the legislatively established TURA Advisory Board, or TURI’s Science Advisory Board.
In addition, outreach on the law’s requirements and on how to best respond was extensive. By 1994, over 150 public workshops had been conducted by OTA, (most of them in conjunction with DEP and TURI). The workshops introduced to covered industrial sectors the requirements of the Act and the concepts of pollution prevention. They explored the technical options for reducing toxics at lowest cost and with the least disruption to ongoing production, most often through presentations by companies that had had successful results. Working with trade associations, chambers of commerce, regional planning agencies, publicly-owned treatment works, and other key players, the TURA program produced a Practical Guide that became widely used throughout the country, conducted walk-in clinics, staged demonstrations of new technologies, established a laboratory for assessing new cleaning techniques, produced software for tracking materials use from acquisition through production to final disposition, determined sources of funding for companies to use in making changes, and arranged for insurance companies to reward reductions in risk caused by reductions in toxics use.
The fact that dozens of case studies were published showing the many benefits of toxics use reduction – to companies achieving it – helped to make the case that TURA was good for the state’s economy. Anecdotal evidence mounted to show that when a company closely examines its material use, and performs a mass balance, it finds and eliminates material losses. When a company closely examines its current costs, and learns about the alternative materials and equipment it can use, it finds ways to become more efficient, as well as environmentally protective. When a company scrutinizes its toxics use by examining the production process (as planning requires), it sees how things actually work on the shop floor, which is sometimes not according to plan. The close examination required by the planning process, and the assistance provided by the program (outside observers, bringing a different perspective to analyzing process, contribute fresh insights), leads to improvements in efficiency and quality, as well as health, safety and environmental performance. Finally, when a company manages to reduce its toxics use, it often resolves, with one action, long-standing compliance problems affecting several media: air, water, and land, as well as worker safety and community risk.
Because TURA exacts a fee and requires planning and reporting to be done, exposes companies to public scrutiny, and reduces income for companies providing or servicing conventional toxics use, the anecdotal evidence produced by the program and the case study companies is not sufficient to make the case that the TURA approach sufficiently benefits the economy as well as the environment, or that it is a model for the future of environmental legislation. In the mid-1990’s the TURA program, led by TURI, conducted an evaluation of the program’s effects. Three studies were conducted by independent contractors, one managing to survey 67% of firms then covered by the Act. The evaluation found that companies changed their practices as a result of TURA. Fifty-five percent of facilities decreased their byproduct generation and 60% decreased their use of toxic chemicals per unit of total production. The companies surveyed reported that it cost them a total of $49.4 million to comply with the Act’s requirements, but they cited savings in operating costs (netting out costs) totalling $88.2 million. In addition, they chose to make $27.1 million in capital investments for TUR purposes. This survey is the clearest indication yet, because it is based on self-reported results, that the Act succeeded in benefiting the very population it covered, and that TUR planning worked, by leading companies to note the benefits of TUR changes, and to make those investments, at their facilities. Not counted in this assessment is the benefit to the Commonwealth of Massachusetts of the reduction of hundreds of millions of pounds of toxic chemicals not imported or created, not used by workers, not incorporated into products used by consumers or transformed into pollutants or wastes to be dispersed or managed. Also not counted in this assessment is the benefit of having a strong assistance program, which creates a tangible and beneficial relationship between government and the regulated population. Also impossible to quantify is the benefit of positively and effectively asserting that those who impose risks upon others through the use of dangerous chemicals have a duty to perform an investigation of methods for reducing that risk, and the value of a successful demonstration that asserting this duty has benefits that extend in all directions.