China Shipping Mitigation

  • 10/30/2015
  • Paul Rosenberg

Port’s Failure Reignites Calls for Fundamental Change

By Paul Rosenberg, Senior Editor

And here I sit so patiently waiting to find out what price you have to pay to get out of going through all these things twice.

—Bob Dylan Memphis Blues Again

The Port of Los Angeles has failed to implement 11 out of 52 mitigation measures (including six life-saving air-quality measures) contained in the 2008 final environmental impact report for China Shipping. The port publicly admitted these failures, which formed the basis for a new supplemental EIR process initiated on Sept. 18 to review and revise the measures “based on feasibility, effectiveness and other factors.” The process began with a “notice of preparation” and a 30-day comment period that ended Oct. 19.

The port originally tried to build the China Shipping terminal without a project-specific EIR. But a lawsuit initiated by local homeowners, represented by the Natural Resources Defense Council, resulted in an historic settlement in March 2003. It included a $50 million mitigation fund, and required a full EIR process, which was finally completed five years later. The settlement also expanded the responsibilities of the Port Community Advisory Committee.

While the broader environmental and public health community was shocked by the news—and responded by calling for strong remedial actions in their public comments—local community activists viewed it as virtually inevitable.

The Source of the Compliance Failure

Random Lengths News Publisher James Allen sought more information on the unfinished mitigations through a Public Records Act request on Aug. 5. The port did not reply to the request until Sept. 22, more than a month later than the law allows.

Port spokesman Phillip Sanfield told the Los Angeles Times, however that, “there is absolutely no relationship” between Allen’s request and the release of the notice of preparation.

POLA Executive Director Gene Seroka told Random Lengths that he discovered the problem with the China Shipping EIR as early as this past April. Seroka said he informed Mayor Eric Garcetti in June and notified the Natural Resource District Council and the South District Air Quality Management District in the following months.

However, the port did not inform neighborhood councils or community litigants until the Notice of Preparation for the Supplemental EIR was released in September.

The port claims its monitoring either meets or exceeds the air quality mitigations outlined in the Amended Stipulated Judgement stemming from the China shipping lawsuit. It says that without Mitigation Monitoring Reports since 2011 it is impossible to prove what levels might have been attained had the port met all 52 of the mitigations measures—not just 41 of them. However, critics charged that the port’s assertions are questionable, that there is no safe minimum pollution level other than zero.

“It is more than clear that this policy of ‘ignoring the law’ in conducting port business is a longstanding and ingrained pattern of behavior,” Chuck Hart wrote in a notice of preparation comment letter on behalf of San Pedro Peninsula Homeowners United—one of two homeowner coalitions represented by the NRDC in the original lawsuit. Hart is the coalition’s president.

“It now appears we are again in a time when the only way the public can communicate with the Port is via the courts,” wrote Dr. John Miller, president of the other coalition (San Pedro and Peninsula Homeowners Coalition) in supplementary comments responding to the notice of preparation.

“This is a direct result of the dissolution of the PCAC. If that group were still in existence we would have been discussing the present problem collaboratively years ago and working collaboratively to resolve it.”

Miller served in several key posts in the Port Community Advisory Committee.

Gunter recalled the reaction of the NRDC lawyers on the original China Shipping lawsuit when she asked how the judgement was going to be enforced.

“I asked [NRDC lawyers] Gail [Ruderman] Feuer and Julie Masters at the time. I said, ‘Who’s going to be following up on these guys?’” Gunter recalled. “‘They’re saying that they’re going to be doing all this stuff, but how do we know that they’re going to comply?’ And, of course, they were shocked, because it’s legal duty under the law. But we already had a huge problem with trust, as far as the port goes, and of course, they never had that experience. I think they were kind of surprised that we would even have any concern about that follow-through. And, I remember them very clearly saying at the time, ‘No, the NRDC is engaged in this and don’t worry, we’re going to be keeping an eye on all of this.’”

But not close enough, obviously, particularly because of what happened several years later to make compliance-checking virtually impossible.

PCAC: The Missing Factor

A key result of the China Shipping settlement was the assignment of additional oversight responsibilities to the Port Community Advisory Committee, which the port first dismantled, then completely dissolved, starting around the time it would have brought the failed implementation measures to light, had it been allowed to continue.

“[Former POLA Executive Director] Geraldine Knatz started really doing everything she could to get rid of the Port Community Advisory Committee about the time we started looking very carefully at the mitigation monitoring,” Miller told Random Lengths. “When the PCAC EIR people started asking pointed questions about the mitigations, Geraldine Knatz moved to withdraw any support from the air quality committee,” former PCAC co-Chairwoman June Smith added.

Reconstituting the Port Community Advisory Committee—or creating some functional equivalent—is a recurring theme in many environmental and public health community forums, including the NRDC, which drafted a letter for a coalition of groups and individuals (including Smith). Similar letters also came from the Committee for a Safe Environment, as well as both homeowner coalitions involved in the China Shipping lawsuit.

Individual letters were submitted as well. More narrowly, a comment letter from public health and preventative medicine professors at USC and UCLA, drafted by USC’s Andrea Hricko called for “an independent third-party oversight committee to monitor the China Shipping agreements and compliance dates.”

While POLA appears to see this as fixing a glitch, Smith summarized the much broader understanding shared by many critics.

“We’re back to the whole question as to whether they’re going to continue to have a port that is run on the boss model, or whether we are going to move into the 21st century and take the bold step that we have begun to take with a more cooperative form of government and management,” Smith said.

Overall, the letters call for a much broader and deeper reconsideration than the port has envisioned. This includes consideration of new mitigation measures involving new technologies not available in 2008, changes in monitoring as well as governance to ensure that the problem never recurs again, and a more robust environmental review process. The federal government, was involved with the original review.

Implied assertions of “infeasibility” were widely questioned, along the with overall vagueness of the “project,” resulting from the fudge-factor term “other factors.”

There were also calls for the notice of preparation comment period to be extended to 90 days, as the port has commonly done in the past.

The Failures

Two of the unimplemented measures dealt with ships, including: Electrical power for 100 percent of docked ships and 100 percent compliance with the 40-nautical mile Vessel Speed Reduction Program.

Three measures dealt with yard equipment, including one that aims to ensure that 70 percent of port trucks are running on liquefied natural gas through 2017 and 100 percent of port trucks starting in 2018.

There was also a measure addressing noise mitigation along with four traffic intersection improvement projects.

Comment letters, however, also called attention to another apparently unmet mitigation measure, AQ-22, “Periodic Review of New Technology and Regulations,” which calls for new technology reviews whenever there’s a lease amendment or facility modification, and additionally, “not less frequently than once every 7 years following the effective date of the permit.”

Because of AQ-22, the port is required to pursue the comment letters’ calls for consideration of new mitigation measures involving new technology.

In prepared remarks for the Oct. 7 scoping meeting, Executive Director Gene Seroka appeared willing to acknowledge past mistakes and assumed responsibility for fixing them.

“This is a situation that was inherited by this current port management team,” Seroka said. “We are taking ownership. It must be addressed. The Board of Harbor Commissioners, along with the mayor and I are committed to fixing the issue. We are solution driven. And we are committed to ensuring that something like this never happens again.”

But it’s not clear that he understands the depth of the problems or how profound the breach of trust is between the port and the community.

“At the time the Board of Harbor Commissioners decided to do away with PCAC, they claimed all of the mitigation, EIR stuff, had been done, and that PCAC’s job was finished,” Smith said. “But when James Hahn set it up [in 2001], it wasn’t for the China Shipping thing. That came afterwards.”

As she went on to explain, Hahn set out his vision in a letter stating three main points.

First, PCAC “was to assess the impacts of port developments on the Harbor Area communities, and to work closely with the soon-to-be-formed local neighborhood councils,” meaning that he clearly envisioned a distinct role for PCAC as an umbrella organization.

The second point was “to review all past and present and future environmental documents, in an open public process,” June explained, adding, “Well, the port just wiped out the future. They said, well we completed all the past things, so we don’t need you anymore. Which was totally wrong.”

The PCAC’s third role was to “take a leadership role in creating communities…to make sure business concerns as well as community concerns were met.”

Hence, it was very clear that the PCAC was not supposed to be a temporary, narrowly-focused entity. It was supposed to facilitate a permanent transformation in how the port conducted its business, moving it away from its old, opaque, corporate, command-and-control way of doing things into a more transparent, democratic, collaborative style of governance.

At the time the PCAC was shut down, Smith presciently warned the Harbor Commissioners.

“The ghost of PCAC will linger on,” Smith warned. “It will be invoked with every future lawsuit from continued flawed EIRs and continuing neglect of the nexus between the adjacent community and port activities. It’s literally criminal that the only future successful communication to address mitigation from the port’s studied indifference to the community will be in the courts of law.

“It’s extremely disappointing to those of us to work hard and long conscientiously believing the cooperative model was working and could continue to work, and then to have politics come in, for whatever reason, and derail something that could have been and was a model for the rest of the nation. It’s extremely disheartening that people can’t see how they could really be a leader not just communally here, but for the whole nation and the world. I would hope that perhaps that idea, that they really could be this kind of leader in the world, in governance would drive them to do something productive here.”

Comment Letter Seeks Solutions

The NRDC comment letter addresses these concerns, along with much else.

“We strongly urge the port to work with the community to create a permanent and independent oversight committee, funded to conduct audits of the implementation of all committed mitigation measures, portwide,” the letter reads. The closing paragraph adds: “Finally, this letter is not to be construed as a waiver of rights under the Amended Stipulated Judgment or under state or federal law, including the rights to arbitrate and/or litigate compliance with existing China Shipping mitigation measures, all of which rights are expressly reserved.”

“There are a number of legal remedies available, but the big question is which is best to attain the desired goal” said NRDC senior attorney David Pettit, who drafted the letter, to Random Lengths News.

This ties into another key point of the letter, that an EIR must analyze compliance “with relevant local, state and federal laws, which in this case includes the final China Shipping decision (“Court approval will be necessary,” if terms are changed), the ports’ Clean Air Action Plan, CAAP and the federal and state Clean Air Acts, and more than half a dozen other state and regional policies, regulations or laws.

“The CAAP has been based in part on using lease renewals to effectuate environmental improvements,” the NRDC warns. “If China Shipping is allowed to defeat this process by refusing to sign a new lease, then all port tenants will adopt China Shipping’s tactic and the CAAP itself will be in danger. Simply put, this new EIR must be considered in light of a complex web of legal requirements, and goals, not in sheltered isolation.

Several other crucial broad contextual points were made in the letter.

First, “With respect to the mitigation measures not included in the notice of preparation, measure AQ-22 has been triggered and should be complied with,” meaning that the list of mitigation measures must be expanded, or the failure to implement AQ-22 will only be made more severe.

In line with what’s required by AQ-22, the letter said:

In the supplemental EIR process, the port needs to look at what mitigation measures are feasible now, not what may have been feasible in 2008….Given the advances in zero and low-emission technology since 2008, there is absolutely no excuse for the port to go backwards in its mitigation measures by, for example, allowing diesel drayage trucks at China Shipping in place of liquefied natural gas or better.

The letter also warned against unfounded claims of infeasibility:

The port cannot hide behind conclusory claims of infeasibility; infeasibility determinations must be supported by evidence.

For example, the notice of preparation lists among the mitigation measures that were not implemented both Alternative Maritime Power and compliance with the 40-nuatical mile Vessel Speed Reduction Program. Yet, Seroka stated publicly that the port complied with these two measures at a rate of 98 percent and 96 percent, respectively. It is hard to imagine that these measures can be deemed “infeasible” if the port has admitted to have already substantially complied with them.

Other unimplemented measures “are identical to or very similar to mitigation measures committed to in the TraPac EIR,” meaning they “are clearly feasible for China Shipping, and if TraPac is not in compliance, then the port needs to publicly disclose that failure and fix that problem immediately as well.” The uncertainty pointed to here is yet another reminder of why restoring transparency, accountability and trust is so crucial.

The NRDC’s letter also proposed a list of additional mitigation measures to consider. These include:

  • Phasing out diesel trucks in favor of trucks meeting or exceeding the emission levels of the Cummins Westport LNG engine recently certified by the California Air Resources Board.
  • Consideration of zero-emission cargo movement solutions, particularly from the China Shipping terminal to the near-dock rail yards.
  • Consideration of deployment of “sock on a stack” ship emissions capture technology.
  • Maximization of the on-dock rail potential at China Shipping in view of the current arrangements among shippers.
  • Use of all-electric yard tractors as used in the Long Beach Middle Harbor project.
  • Terminating the China Shipping lease if China Shipping does not promptly agree to whatever mitigation measures are certified in the current supplemental EIR process.

Other comment letters provide an even broader range of criticisms and proposed mitigation measures.

“Typically, a company that fails to meet its environmental health obligations will be faced with sanctions, penalties or fines,” Hricko wrote, for example. “Please include information in the [draft] EIR about what these will entail.”

Similarly, the Committee for a Safe Environment asked for the draft EIR to include “a matrix of Penalties and Sanctions” for “failing to comply with legal requirements,” and also called for “disciplinary action against the City Attorney,” as well as suspension of two port staffers for their “failure to timely disclose to the public” the port’s failure to comply with the China Shipping EIR and related legal documents: Christopher Cannon, the port’s director of Environmental Management and Janna Sidley, the port’s general counsel.

As profound as the port’s historical pattern of failure regarding China Shipping may be, it cannot be understood in isolation.

Similar Concerns

In recent years, Gunter has been deeply involved on another front, trying to shut down or relocate the Rancho LPG facility, which similarly implicates the port’s lack of community concern.

“Rancho was introduced by POLA. It was totally facilitated through them, and the EIR that was conducted, everything was through the port,” Gunter said.

The recent explosion in Tanjin China highlights the local danger and policy failure, she said. Rancho’s tanks hold “a TNT equivalent that is over 1000 times greater than” the explosion in Tanjin, while Chinese law requires a 0.6 mile buffer zone, roughly 3,000 feet, while the Rancho facility was built within 1,000 feet of the nearest residents.

But Rancho was not an isolated problem, Gunter stressed, just as China Shipping’s multifaceted community impacts—and the port’s repeated failures to cope with them—don’t exist in isolation. Gunter drew attention the port’s 1981 master plan, which called for relocating hazardous terminals, but has never been followed in that regard, and is now being altered to remove that responsibility.

“In 1981, when they installed that, it was at the insistence of the LA Planning Department,” Gunter said. “They didn’t want to do it.”

An inter-departmental memo Gunter supplied makes it clear that the California Coastal Commission was a the driving force behind the relocation requirement.

“So for 35, whatever years it’s been since they instituted that document, they’ve effectively ignored it,” Gunter said. “There’s no responsibility to the public.”

In fact, Pier 400 was originally conceived to relocate such facilities away from the public.

“Not far enough now in retrospect, we realized that it’s not even close to far enough away,” Gunter said, “But they took that money, they took those efforts and dedicated them to not a relocation site, but a new container terminal. Once again superseding any consideration for the local public, and to the responsibility to protect them.”

This brings us back to choice described by June Smith above, between the old boss model or moving into the 21st century “with a more cooperative form of government and management.”

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