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    News in Depth

    LB Port & LB Council On Collision Course -- Again -- This Time Over Assemblyman Lowenthal's AB 2042 For Zero Net Increase In Port Air Pollution


    (May 1, 2004) -- One day before a scheduled May 4 City Council vote on a resolution to back legislation by Assemblyman Alan Lowenthal (D., LB-SP-PV) that would require a zero net increase in air pollution from the Ports of LB and L.A., management of the Port of LB has agendized an item for LB Harbor Commission's May 3 agenda that would oppose the bill as written and seek changes by the Assemblyman.

    AB 2042 has drawn fire from the Pacific Merchant Shipping Association, an industry interest group...and on April 30, the LB Area Chamber of Commerce issued an email action alert urging opposition to the bill on similar grounds.

    On April 20, after some discussion of delaying action on AB 2042, the Council voted to direct the City Attorney to prepare resolutions in support of a trio of bills (AB 2041, 2042 & 2043) by Assemblyman Lowenthal dealing with port air pollution and related matters. Those resolutions are agendized for Council action on May 4.

    AB 2042 (as described in the most recent Assembly legislative analysis) would require the City of Long Beach, for the Port of Long Beach, and the City of Los Angeles, for the Port of Los Angeles, to require growth and operations at its port to be limited or controlled in a manner that prevents air pollution at the port from exceeding the specified baseline. The bill would require each city, on March 1, 2006, and every March 1 thereafter, to report to the district regarding the city's compliance with this requirement, including an accounting of the city's programs and efforts that are directed towards that compliance. (full text below)

    On Monday May 3, the LB Board of Harbor Commissioners will vote on a recommendation agendized by PoLB Executive Secretary Gustav Hein and PoLB Executive Director Richard Steinke urges LB's Mayor-appointed, Council-approved Board of Harbor urging opposition to AB 2042 as currently written...and to work with Assemblyman Lowenthal "toward a more prudent and acceptable bill." (Full PoLB management memo text below.)

    If LB's Harbor Commissioners vote as Port management recommends, their vote would put the Port of LB on a collision course with LB's City Council. A similar situation arose in August 2002 over then-proposed legislation by Assemblyman Lowenthal to limit truck idling at the ports.

    Under LB's City Charter, "all powers of the City shall be vested in the City Council" except as otherwise provided in the Charter. The Charter grants "exclusive control and management of the Harbor Department" to the Board of Harbor Commissioners. LBReport.com has listed the Harbor Commission's exclusive powers and duties under the City Charter on a special page; to view it (a separate window will open for you), click here.

    On Tuesday May 4 (the day after Harbor Commission's scheduled opposition vote on AB 2042), LB's City Council is scheduled to vote on a resolution (full text below) backing AB 2042. As drafted by the City Attorney's office, the Council resolution would declare that the "City Council supports AB 2042 in order to protect public health and safety by avoiding an increase in air pollution from the ports of San Pedro Bay" and direct the City Clerk to transmit a copy of the resolution "to the Governor, to the members of the California Legislature representing the Long Beach and Los Angeles areas, and any other officials, agencies, entities, and individuals as may be deemed appropriate."

    A similarly schizoid situation between the Port and City Council arose in August 2002, when -- one day before a scheduled Council vote on a resolution backing a bill by Assemblyman Lowenthal to limit truck idling at the Port -- LB's Board of Harbor Commissioners echoed arguments advan1ced by some Port interests and passed a resolution opposing the bill. A day later, LB's City Council voted to back the bill. Assemblyman Lowenthal ultimately amended his bill to the point where opposition ended and the bill passed the state legislature and is the law today.

    A similar scenario could play out again on Monday and Tuesday May 3 and 4, 2004, arising from a March 9, 2004 agenda item by LB Councilmembers Bonnie Lowenthal, Tonia Reyes Uranga and Val Lerch who sought Council support for Assemblyman Lowenthal's AB 2041, 2042 and 2043 (collectively dubbed the "California Ports, Community Partnership" package).

    AB 2041 would put a fee on containers shipped by truck in both ports between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. AB 2042 is the "no net increase" in air pollution bill. AB 2043 establishes a CA Maritime Strategic Port Master Plan Task Force to consider (among other things) port growth, security, environmental concerns, coordination with other state ports and other topics.

    Councilmembers Lowenthal, Uranga and Lerch said in their agendizing memo that as "members of the 1-710 Oversight Committee, we have heard testimony from residents at every town hall meeting with respect to each issue discussed in this legislative package. We respectfully request that the Long Beach City Council support drafting a resolution in support of the proposed legislation."

    The Council sent their recommendation to the Council's State Legislation Committee for discussion and consideration and Assemblyman Lowenthal attended and testified at the Committee's hearing...at which there was no opposition voiced publicly. The Committee voted unanimously to recommend that the Council support the three Lowenthal bills.

    However when the issue returned to the Council on April 20, opposition surfaced from Tom Teofilo, VP of the Pacific Merchant Shipping Association.

    I have to praise our ports for the Healthy Harbor initiative that they have begun, and that we in the maritime industry are working very closely with them, putting particulate traps on vehicles, using low emission fuels and voluntary vessel speed reduction for ships coming into the port, a number of activities that are reducing the emissions within the harbor.

    However, it's this bill and as you are legislators in your own right, you know how many times legislation, while passionate to meet the issue, oftentimes could be written improperly and it's our impression that this bill is written poorly.

    While it has the best of intentions, and we agree with the intentions, we feel the bill as to be re-written and we as the Pacific Merchant Shipping Association oppose the bill in its current form.

    Later, in colloquy with the Council, Mr. Teofilo added:

    [AB] 2042 requests that the...AQMD be the monitoring and marshalling body to effectively oversee this capping of pollution. Well, the AQMD doesn't have regulatory authority over mobile entities, that would be the EPA or CARB [CA Air Resources Bd], so the wrong agency has been selected as the marshalling body.

    Number two, the concern is -- and again, I'm not here to preach doom and gloom, I'm not saying cargo's going to run to the other ports which is things we've all heard in the past and frankly we choose not to use those arguments -- but there are some legal implications here with port contracts with tenants in terms of growth in terminals, and if that growth is now prohibited because of air quality constraints, there hasn't been any allocation for that in the bill thus far, and we believe that there's some real liability, some real exposure there, that needs to be looked at not only from the city's standpoint but certainly the port's standpoint.

    So there are just a couple of the issues that we have with this bill. Again, I come out to you very forthrightly we are for clean air, we are for a clean environment, we're doing our part, we're doing as much as we can, we're doing analysis, we're bringing in science, we're trying to do more than has ever been done before. And yes indeed, in some cases politicians have pushed the buttons and made us work a little faster, we'll agree with you there.

    But we do have reservations about AB 2042 and we'd hope you take that seriously...

    A staffer from Assemblyman Lowenthal's office told the Council that the intent of the three bills is to "stabilize an out of control situation" and the Assemblymember "feels this is a very important air quality measure, and the Ports are on the state tidelands and operate in the best interest of the public benefit, and the work that's being done in the ports is recognized and appreciated and the Assemblymember feels still that this situation needs to be addressed with a no net increase [in pollution]."

    Other speakers at the Council meeting supported Assemblyman Lowenthal's three bills...with a speaker from the Coalition for Clean Air who stated in pertinent part:

    ...I distributed a copy of our recent study entitled Harboring Pollution: The Dirty Truth About U.S. Ports, where we co-authored it with NRDC [Natural Resources Defense Council] and in there we evaluate the 10 largest U.S. ports, including the port of Long Beach and the port of Los Angeles...

    The reality is that our ports are not doing enough, really not sufficient to mitigate their impacts on public health and the environment.

    I do want to mention that we are distributing postcards to the community, the community is actually signing in support of a no-net-increase [in pollution] at the port and a lot of them are actually saying 'we want better than that.'

    So we really see that AB 2042 is really critical in this first step to really mitigate the air quality impacts...

    [LBReport.com comment: Assemblyman Lowenthal has acknowledged the significance of the distinction in the longer term between no net increase in pollution, and a decrease in pollution (improvement from current conditions). To view his 2003 comments on this after 9th district Councilman Val Lerch rhetorically questioned the wisdom of continued Port growth, click here.]

    Some Councilmembers, including Laura Richardson, expressed disappointment that opponents of AB 2042 had not voiced their objections earlier at the committee level, where they might have been addressed before coming to full bloom at the full Council level.

    Ultimately, the Council voted unanimously to direct the City Attorney to prepare resolutions supporting Lowenthal's three bills that will return on May 4...when the Council gets the last word. Separate resolutions have been agendized for separate votes on each of the Lowenthal bills (AB 2041, 2042 & 2043) at the Council's May 4 meeting.

    The proposed Council resolution for AB 2042 states in pertinent part:

    RESOLUTION OF THE CITY COUNCIL OF THE CITY
    OF LONG BEACH URGING THE CALIFORNIA STATE
    LEGISLATURE TO ENACT ASSEMBLY BILL 2042

    WHEREAS, Harbor Departments of the Cities of Los Angeles anG ,ong Beach predict that truck traffic to and from the ports of San Pedro Bay will more than double in the next 20 years from roughly 35,000 trucks to nearly 83,000 trucks per day; and

    WHEREAS, ships and trucks emit air contaminants, including oxides of nitrogen, carbon dioxide, and particulate matter; and

    WHEREAS, state air regulators have stated that diesel engine exhaust poses a serious health risk, that it increases chances of lung cancer, intensifies asthma attacks and in some studies has been linked to infant mortality; and

    WHEREAS, a landmark study conducted by the South Coast Air Quality Management District entitled, "Multiple Air Toxics Exposure Study" or MATES 11, attributed 70% of all health risks from mobile sources in the South Coast Basin to diesel engine exhaust;

    WHEREAS, AB 2042 would require a zero net increase in air pollution as the ports of San Pedro Bay grow and expand.

    NOW, THEREFORE, the City Council of the City of Long Beach resolves as follows:

    Section 1. That the City Council supports AB 2042 in order to protect public health and safety by avoiding an increase in air pollution from the ports of San Pedro Bay.

    Sec. 2. That the City Clerk is directed to transmit a copy of this resolution to the Governor, to the members of the California Legislature representing the Long Beach and Los Angeles areas, and any other officials, agencies, entities, and individuals as may be deemed appropriate.

    Sec. 3. This resolution shall take effect immediately upon its adoption the City Council, and the City Clerk shall certify to the vote adopting this resolution.

    On Friday April 30, the LB Area Chamber of Commerce weighed in with a sophisticated use of the internet. As previously reported by LBReport.com, the Chamber has established a robust advocacy web site (www.longbeachadvocacy.biz), combined with email, to communicate quickly on a mass level. In action Action Alert emailed on April 30, the Chamber stated:

    The Chamber is OPPOSING AB 2042 (Lowenthal).

    The Chamber is concerned that this bill will restrict future port growth and will be detrimental to port cargo demands.

    Specifically, the Chamber opposes AB 2042, as introduced, because:

  • The air quality baseline is restrictive and will be an obstacle to future growth within the Port of Long Beach and Port of Los Angeles. This includes their ability to handle rapidly changing cargo demands.

  • The bill presents a conflicting approach to mobile source emissions by placing the authority with the SCAQMD instead of the current jurisdiction held by the state and federal governments.

  • The bill places the statutory responsibility for these emissions with the cities and ports, which lack regulatory authority over the sources Ė an open invitation for litigation against these entities.

    Furthermore, the Chamber has worked closely with the California Chamber of Commerce and the Pacific Merchant Shipping Association on this issue and shares their concerns, areas of contention, and opposition to AB 2042.

  • The Chamber's Action Alert urged recipients to log onto www.longbeachadvocacy.biz and click on "email a letter"...a new service that lets users "modify a letter on the screen and then email that letter to our state legislators or you can still download a sample letter and fax it to us!"

    LBReport.com posts below the text of an Assembly legislative analysis of AB 2042, followed by the text of an April 29 memo from PoLB management to LB Harbor Commissioners accompanying the May 3 item on the Harbor Commission agenda.

    Assembly Legislative Analysis of AB 2042
    ASSEMBLY THIRD READING
    AB 2042 (Lowenthal)
    As Amended April 1, 2004
    Majority vote
    
    TRANSPORTATION      8-6           APPROPRIATIONS      15-3
    -----------------------------------------------------------------
    |Ayes:|Oropeza, Chan, Kehoe,     |Ayes:|Chu, Berg, Calderon,      |
    |     |Liu, Longville, Pavley,   |     |Corbett, Firebaugh,       |
    |     |Salinas, Simitian         |     |Goldberg, Leno, Nation,   |
    |     |                          |     |Negrete-McLeod, Oropeza,  |
    |     |                          |     |Pavley, Ridley-Thomas,    |
    |     |                          |     |Wesson, Wiggins, Yee      |
    |     |                          |     |                          |
    |-----+--------------------------+-----+--------------------------|
    |Nays:|Houston, Bates, Benoit,   |Nays:|Runner, Bates, Keene      |
    |     |La Suer, Mountjoy, Parra  |     |                          |
    |     |                          |     |                          |
    -----------------------------------------------------------------
    SUMMARY :  Prohibits growth at the Ports of Long Beach and Los
    Angeles (Ports) from increasing air pollution.  Specifically,
    this bill:
    
    1)Makes legislative findings and declarations regarding the
    health risks attributable to diesel engine exhaust and the
    federal requirement that certain regions with high levels of
    air pollution must demonstrate that construction of new
    highways will not worsen air pollution.
    
    2)Requires the South Coast Air Quality Management District
    (SCAQMD) to establish a baseline for air quality in the Port
    of Long Beach based on that port's 2001 emission inventory.
    
    3)Requires SCAQMD to establish a baseline for air quality at the
    Port of Los Angeles based on that port's 2002 emission
    inventory.
    
    4)Requires those baselines to include emissions from vessels and
    harbor craft, cargo handling equipment, locomotives, and
    commercial vehicles.
    
    5)Requires the Cities of Long Beach and Los Angeles to require
    growth and operations at their respective ports to be limited
    or controlled so that air pollution does not exceed the
    baselines established under this bill.
    
    6)Requires both Cities, every March 1 beginning in 2006, to
    report to SCAQMD regarding their compliance with this
    pollution restriction.
    
    7)Allows SCAQMD to impose a fee on each city to recover its
    costs in administering this bill's requirements.
    
    EXISTING LAW  vests responsibility for developing and enforcing
    air pollution control measures with the Air Resources Board
    (ARB) and various regional air quality management districts and
    air pollution control districts.
    
    FISCAL EFFECT :  According to the Assembly Appropriations
    Committee analysis, one-time costs of less than $50,000 in
    fiscal year (FY) 2004-05 to SCAQMD to establish the Ports' air
    quality baselines; these costs are potentially covered by fees
    SCAQMD is authorized to impose on the Cities of Long Beach and
    Los Angeles.  There will also be costs, probably less than an
    aggregate of $100,000 annually starting in FY 2005-06, to the
    Cities of Long Beach and Los Angeles to report to SCAQMD on
    their compliance with this bill's air quality baseline
    requirements; these costs are reimbursable from the state.
    
    COMMENTS :  The author asserts that the Long Beach Freeway in the
    vicinity of the Ports is overwhelmed by truck traffic, which is
    projected to more than double, to 83,000 vehicles per day, in
    the next 20 years.  Most of these trucks are diesel-powered and
    diesel particulate matter (PM) emissions have been identified as
    a toxic air contaminant by air quality officials.  These
    officials believe the Ports are the largest single source of air
    pollution in the four-county Los Angeles region and that trucks
    and ships are the primary sources of port-related pollution.
    
    Supporters lament the fact that in the vicinity of the Ports,
    the lifetime excess cancer risk is 1,400 per million people
    exposed, far above the one-in-a-million level the federal
    Environmental Protection Agency (EPA) deems to be acceptable.
    They also point out that the Ports are "virtually next door" to
    residential neighborhoods, schools, and playgrounds.
    
    The Pacific Merchant Shipping Association (Association), in
    opposing this bill, counters that more than 1,000
    container-moving equipment at the Ports have been, or soon will
    be, fitted with particulate traps or diesel oxidation catalysts,
    while hundreds of pieces of cargo-handling equipment are using
    clean-burning emulsified fuel.  Various other initiatives are
    underway to reduce emissions as well.  The Association contends
    that this bill conflicts with state and federal law and policies
    and "erects a vague and potentially prohibitive obstacle to
    future growth (that would) send a negative message to the
    international trade community."  The Association particularly
    cautions against assigning mobile source emission regulation to
    a regional agency, a prospect that could create "islands of
    divergent authority for sources that travel between air
    districts (and other state and federal jurisdictions."  For this
    reason, they believe authority should remain with the ARB and
    federal EPA.
    

    Memo to LB Harbor Commissioners from PoLB Management re AB 2042

    DATE: April 29, 2004

    TO: Board of Harbor Commissioners

    FROM: Gustav T. Hein, Executive Secretary

    SUBJECT: Assembly Bill 2042

    Recently, Assemblyman Alan Lowenthal introduced Assembly Bill 2042 pertaining to the Ports of Long Beach and Los Angeles. As the bill currently reads, AB2042 would require a cap on future Port emissions beginning on March 1, 2006, based on a 2001 emissions inventory baseline. While the bill is unclear on a number of issues that will be described below, it is clear that it could severely limit future growth of both infrastructure and cargo volumes, ignores the stateís existing air quality regulatory policy, and endangers funding for the Alameda Corridor. These issues are discussed in further detail below.

    The proposed billís requirement that, beginning March 1, 2006, the Port not exceed a 2001 emissions baseline is simply unachievable. The Port of Long Beach has experienced tremendous growth since 2001 that includes larger ships and more cargo, truck trips, and cargo handling equipment. In particular, the emissions from Pier T and the redeveloped Pier G/J are not included in the baseline but would count toward the total in 2006. As a result, the Port of Long Beach has almost certainly exceeded the 2001 emissions baseline and would further exceed such a baseline as projects under construction begin operation. The practical effect is that the bill would require the Port to limit operations at its tenantís facilities in order to maintain an emissions cap.

    A complex system of rules and regulations governs air quality issues relating to Ports. The U.S. Environmental Protection Agency (EPA) has primary jurisdiction over ocean-going vessels and locomotives, while the California Air Resources Board (CARB) has regulates on and off-road mobile sources, and the South Coast Air Quality Management District (AQMD) has authority over the limited stationary sources (e.g. SERRF) located within the Port. In fact, except for ocean-going vessels, sources within ports are tightly regulated and face much stricter future regulation. While the goals of AB2042 are laudable, most of its goals have already been accomplished by the EPA and CARB, as well as the Portís Air Quality Improvement Program (AQIP) and other voluntary programs. In fact, we expect that existing regulations of mobile sources (on-road trucks, locomotives, and off-road terminal equipment), which take effect in 2007, and Portís AQIP will achieve the goals of AB2042 with respect to those sources, without the onerous responsibilities that the bill places on the San Pedro Bay Ports.

    Emissions from ocean-going vessels and harbor craft probably represent the most difficult aspect of this bill. Marine sources of air pollution approximately make up two-thirds of total port-related emissions. While it may eventually be possible to reduce emissions below a 2001 baseline from other source categories, marine sources represent an intractable area. The Port has no authority over these international sources, while only weak federal and international air quality requirements exist. An additional concern is that many supporters of this bill believe that cold-ironing is a panacea for emissions from ships. However, as the Board is aware, cold-ironing can only apply to relatively few vessels in the short term and will only address a few percent of the total port-related emissions.

    Other issues that make AB 2042 a flawed bill include the fact that it would penalize the San Pedro Bay ports compared to other California ports, and port-related trucking interests compared to other trucks. This bill also transfers authority over mobile sources from CARB, where under state law it has traditionally rested, to a local agency. Such a transfer may be unconstitutional and raises issues regarding the regulation of activities in the tidelands. The bill is too vague to be effectively implemented. In particular, it does not specify which air pollutants would be capped; air pollution has many components, only some of which are of particular concern in this region. Without specificity, it is not possible to target port emission control measures.

    Finally, the bill could compromise the viability of the Alameda Corridor. As throughput is capped, discretionary cargo would be diverted to other ports, which would reduce corridor revenues and jeopardize ACTAís ability to service its bond obligations.

    The City of Long Beach at its City Council meeting scheduled for Tuesday, May 4, has agendized this bill and will be considering this legislation.

    Therefore, it is recommended that the Board of Harbor Commissioners oppose AB2042 as it is currently written and work with the author toward a more prudent and acceptable bill.

    Recommended by:

    Gustav T. Hein
    Executive Secretary

    Richard D. Steinke
    Executive Director

    The Board of Harbor Commissioners' meeting will take place at the Harbor Dept. Aministration Bldg., 925 Harbor Plaza, Monday, May 3 starting at 1:00 p.m.

    The City Council will convene at LB City Hall, 333 W. Ocean Blvd. on Tuesday May 4 starting at 5:00 p.m.


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