Testimony of Rep. Sharon Treat
Sponsor

LD 1423
“ An Act to Improve Toxics Use Reduction and Reduce Energy Costs by Maine Businesses”
Joint Standing Committee on Natural Resources
April 30, 2009

Senator Goodall, Representative Duchesne and members of the Joint Standing Committee on Natural Resources. I am Sharon Treat, and I represent House District 79, and I am presenting LD 1423, “An Act to Improve Toxics Use Reduction and Reduce Energy Costs by Maine Businesses,” on behalf of the Department of Environmental Protection.

My involvement with legislation to reduce toxics in Maine goes back many years, and I helped draft and advocate for the original Toxic Use Reduction Act (TURA) in 1990. The purpose of the law then, as it should remain today, was to reduce to the maximum extent possible, toxics use, production and emissions at the source through changes in production practices and materials. Unlike earlier environmental laws which set particular emission levels or criteria for waste disposal, TURA sought to change behaviors and eliminate toxics at the source.

The law set ambitious toxics reduction goals and required planning to meet those goals, as well as specific public reporting of emissions and reduction successes. It also was innovative in reaching across the labor-management aisle to develop plans that involved workers as well as management in both planning and implementation. Early successes involved replacing chemical finishing baths with air-blown mechanisms, for example, and using closed-loop systems that did not release waste into the environment but reused and recirculated chemicals – saving both money for the industry and reducing the environmental impacts.

As has so often been the case, the law was amended over the years. Mandatory goals became voluntary. New goals were not set as time marched on. Apparently, reports have piled up in DEP file cabinets with little attention paid to the substance of those reports. TURA has been in a holding pattern since 2006, the last date established in the TURA 1999 amendments to achieve the state’s voluntary TURA goals

Late last year, DEP Commissioner David Littell and Program Director Beth Nagusky came to me with a bill to overhaul the TURA program. The concern they expressed was to better use staff resources to focus on helping businesses achieve the TURA goals, rather than reviewing reports. They also wanted to integrate business outreach on the state energy and climate goals with this existing program. The initial bill did not recognize the success achieved by the existing program elements but rather eliminated much of the program and replaced it with the climate change outreach function. I think the Department will agree with me when I say is an understatement that my reaction was negative. In fact, you could say it was “toxic”!

Since then, the Department retooled the bill and has told me that they have consulted with the many stakeholders who have been involved with the TURA program over the years, a concern I had when presented with the draft that apparently had not been shared with any of the many environmental, labor and public health organizations who were involved with passing and overseeing the implementation of the original TURA.

Although I have agreed to sponsor LD 1423 for the Department, and as printed it is improved from the draft shared with me late last year, I agree with criticisms that you will hear today that the bill needs more work before it can be passed.

Specifically, it appears that the primary intent of LD 1423 remains freeing up state pollution prevention staff time by cutting back on many of the existing requirements under the TUR program, and then applying this staff time to increase assistance to businesses to help them conserve energy to reduce greenhouse gases, which appears to now be a higher priority of the Department. While I share the interest in greenhouse gas reduction, more thought needs to be given to (1) how to retool the TUR program to make it more, not less, effective; and (2) figuring out how to integrate the new greenhouse gas reduction assistance effort into the TUR program, where greenhouse gas reduction differs in several ways from toxic chemical management and reduction.

Areas of this legislation which need to be improved include the following:

Toxics use reduction goals: The original TURA had mandatory goals, which were intended to guide a planning process. The bill does away with the specific percentage reduction goals previously established and moves to a general goal zero of discharge by the year 2050. I know DEP thinks this is a very ambitious goal. For it to be a useful goal, however, the law should specify some interim goals and criteria to target efforts to achieve the biggest bang for the buck. I would hope that in 40 years we could attain zero discharge in many of our businesses through new technologies and expertise, but the bill is too vague as written to give confidence that this can be achieved.

Measuring toxics and reduction success: Of particular concern relating to whether the goal can be reached is the bill’s removal of the metrics for measuring achievement and compliance with TUR plans. Current law measures reductions of toxics "per unit of product to account for changes in the level of production activity" (38 MRSA 2305, subsection 2-A), and requires progress reports to include a quantitative statement of progress achieved in meeting reduction goals. These must be reported both "in absolute amounts and per unit of production" (38 MRSA 2305-A, subsection 2).

The use of these metrics was a very important part of the original TURA, because without metrics relating to units of production you really can’t measure what has been achieved through changes in processes and materials and what is simply the result of shutting down a production line or reduced volume of product. This part of current law was hard-fought and considered by advocates of the law such as myself to be the heart and soul of the TURA. Its removal substantially weakens an already weakened law. The elimination of this provision also should be of concern to the Legislature because these metrics provide a way for policymakers to measure the success of the program, and DEP’s outreach activities, in achieving the goals of this law.

The bill also provides exemptions from the reporting provisions that are not well thought out. As others will point out, the bill inserts into Maine’s TURA risk-based concepts from a particularly ineffective federal law (TSCA – which is so limited that when I taught Toxic Torts at the Maine Law Cchool I pretty much skimmed over this law). LD 1423 would exempt companies from planning for already voluntary reductions by simply asserting no unreasonable threat (risk), a term which is not defined. Given the history of TSCA, which is an outdated, ineffective law in need to replacement, this is a bad move.

Public reporting. I like the shift to an internet based reporting system, a suggestion I made to the Department when they met with me last year and raised concerns about voluminous reports from the companies languishing in file cabinets, and their desire to shift staff time from monitoring reporting compliance to providing pollution prevention technical assistance. I do think the web posting provisions of this bill need to be improved, however. My suggestion to DEP was based on the web-based system for uploading campaign finance data which legislators are so familiar with. My thought was that just as we input data into a spread sheet which is automatically uploaded to the web, companies could report on their toxics reduction progress in the same way, eliminating the DEP middleman thus saving staff time. Simple software could calculate the metrics discussed above and insure the transparency of the planning and reduction process which has been the hallmark of the program and which DEP credits with the successes that have been achieved so far. The bill does have internet posting of plans but by abandoning the metrics requirement limits the usefulness of the data and the effectiveness of this transparency measure.

Better integration of greenhouse gas provisions with TUR definitions and goals. When I met with DEP last year I put this issue to them is a simplistic way, but I think my concern remains apt: I pointed out that providing technical assistance to businesses about replacing lightbulbs is not the same level of technical expertise, nor are consequences to public health of the same order, as when dealing with toxic chemical releases, handling and disposal. The issues aren’t the same, and you can’t just insert greenhouse gas provisions into existing TUR definitions and have the law make sense. While I am supportive of the Department’s efforts to provide more technical assistance in this emerging regulatory area, more thought needs to go into just how this should be done, including how “cross media pollution” is defined.

By now in my testimony, the Department may wish I had refused to sponsor this bill, which was my initial instinct. I don’t believe that their intent is to destroy the TURA program but rather to use already limited resources to carry out the ever-increasing scope of the Department’s responsibilities. In the process, though, important provisions of current law have been compromised with confusing language and a streamlining that omits key elements of the original law.

Can this bill be fixed? I am not sure. If the real goal is to secure additional staff time for the climate change initiatives, perhaps we need to look at alternative funding sources, such as the stimulus funding for energy efficiency, rather than trying to fit a square peg into a round hole. The TURA goals should be brought up to date and I like the internet reporting, but the collateral damage on the way to this outcome is unacceptable. I defer to the committee on the best approach to moving forward, and look forward to working with you and the Department in the days to come.

Thank you.