By Paul Rosenberg, Senior Editor
On Sept. 28, the Port of Los Angeles released a new proposal, known as a “recirculated draft supplemental environmental impact report (SEIR),” to compensate for extensive past mitigation failures at the China Shipping Terminal. The mitigation failures spanned a wide range of areas — from vessel speed reductions to liquefied natural gas trucks to yard equipment to new road construction never undertaken. These mitigation failures came to light in 2015 when the port leaked initial information about them to the Los Angeles Times in response to inquiries begun by Random Lengths News.
The ultimate cause of the mitigation was the lack of an enforcement mechanism in the landmark 2003 China Shipping settlement agreement, according to Janet Gunter, one of the original plaintiffs.
“This was noticed when the settlement agreement was drafted,” Gunter told Random Lengths. “The two original [NRDC] attorneys that represented the suit, Julie Masters and Gail Ruderman-Feuer assured us that they would be monitoring the situation themselves to guarantee that the mitigation measures were met.” However, both left the Natural Resources District Council soon afterwards, “And there were no directives within the agreement that mandated follow up or monitoring. So, there is a lesson to be learned from that. That lesson is one that the homeowners were already very well aware of,” Gunter said, “The port cannot be trusted.”
Last year, two years after the mitigation failure was exposed, the port eventually responded with a SEIR focused narrowly on the failed mitigation measures, but that report was so fundamentally flawed that the port withdrew it, rather than proceed from draft stage to final report.
“It had a number of mistakes, including using the wrong CEQA baseline, which is ground zero for analysis, and they did not give us enough data to be able to determine the excess [harmful] emissions our clients were exposed to.” NRDC senior attorney David Pettit told Random Lengths. Now they’re ready to try again, but it still seems woefully inadequate.
“There’s quite likely to be litigation over this because the port is still not willing to commit to anything beyond the Clean Air Action Plan in terms of cleaning up the drayage fleet at China Shipping.”
The mitigation measure, AQ-20 “LNG Trucks” originally called for a 50 percent compliance level in 2012, rising to 70 percent in 2014 and 100 percent in 2018. But compliance was just 10 percent in 2012, and fell to 6 percent in 2014 “lower than the port-wide average of 10 percent,” according to the EIR.
“There are LNG trucks in the market, so it’s not like you’re asking for a levitation system or something, that doesn’t exist,” Pettit said. “You can go to Volvo right now today and say ‘I’d like 100 LNG trucks.’ And they’d say, ‘Sure, what color do you want?’ But the port doesn’t want to do that, and that’s one of the reasons we’re here today.”
Beyond that, the underlying problems are so fundamental that local activists, like Richard Havenick, argue the State Lands Commission ought to step in to ensure competent stewardship of the public lands for which it’s ultimately responsible. Havenick was a long-time member of the Port Community Advisory Committee, which had no enforcement power, but provided some oversight, before the port disbanded it in 2011.
“The port had a couple of failures and we need to see that they’ve identified the causes of the failures and corrected them,” Havenick said. He identified two levels of operational failure and one problem of organizational structure First, “The procedures and work instructions at the working level did not actually document the actions required, to track mitigations and ensure that they were implemented,” Havenick said.
“Second, they’ve got to have internal audits to make sure they’re doing what they’re supposed to be doing as a business system.
And third, their environmental director needs to be raised to the position of their other functional heads, such as planning, engineering, so that they can operate at the level of management commensurate with the responsibilities required for such an agency where environmental issues are so far-reaching and so broad.”
“We’re the state, and they’re managing assets for the state,” Havenick explained. “If the port operates the asset for the state, it seems like the State Lands Commission would want to know the answers to the questions I’m asking. It’s just two simple questions with two simple answers that are more foundational than the mitigations: What allowed this to happen? And what did you do to correct it?” he said. “There’s no mudslinging, no tomato throwing, it’s simply a matter of fact. If you’re going to operate the assets for the state, tell us what you did to correct your management failures.”
The public has until Nov. 13 to respond in writing, and oral comments will be heard at a public comment meeting on Oct. 25 at POLA Headquarters in San Pedro.