April 2, 1999
STATE WATER RESOURCES CONTROL BOARD
WORKSHOP--OFFICE OF CHIEF COUNSEL
APRIL 14, 1999
ITEM: 9
SUBJECT: IN THE MATTER OF THE PETITION OF INTERNATIONAL AND WAREHOUSE
UNION FOR REVIEW OF THE FAILURE TO ACT BY THE CALIFORNIA REGIONAL WATER
QUALITY CONTROL BOARD, LOS ANGELES REGION, REGARDING HUGO NEU-PROLER COMPANY
LOCATION: Los Angeles
DISCUSSION: Last year the International Longshore and Warehouse Union
(Union) sent a letter to the Los Angeles Regional Water Quality Control
Board (Regional Water Board) requesting that the Regional Water Board take
enforcement action against Hugo Neu-Proler Company (Hugo Neu-Proler). Hugo
Neu-Proler recycles scrap metal on land leased from the Port of Los Angeles
at Terminal Island. The Union contended that Hugo Neu-Proler had discharged
and continues to discharge scrap metal waste to Los Angeles Harbor in violation
of the Water Code and Clean Water Act. The Regional Water Board did not
respond to the letter. The Union then filed a petition for State Water
Resources Control Board (State Water Board) review of the Regional Water
Board's failure to act.
After the petition was filed, Hugo Neu-Proler filed responses in opposition
to the petition. The Regional Water Board did not file a response or the
administrative record. Instead, the Regional Water Board requested that
the State Water Board informally remand the matter back to the Regional
Water Board or dismiss the petition without prejudice.
The proposed order temporarily remands the matter to the Regional Water
Board. The proposed order directs the Regional Water Board to file a response
to the petition by no later than June 30, 1999.
POLICY ISSUE: Should the State Water Board adopt the proposed order
temporarily remanding this matter back to the Regional Water Board?
FISCAL IMPACT: This activity is budgeted within existing resources and
no additional fiscal demands will occur as a result of approving this item.
RWQCB IMPACT: Yes, the Los Angeles RWQCB.
STAFF RECOMMENDATION: Staff recommends that the State Water Board adopt
the proposed order.
STATE OF CALIFORNIA
STATE WATER RESOURCES CONTROL BOARD
ORDER WQ 99-
In the Matter of the Petition of INTERNATIONAL LONGSHORE AND WAREHOUSE
UNION
for Review of the Failure to Act by the California Regional Water Quality
Control Board,
Los Angeles Region, Regarding Hugo Neu-Proler Company
SWRCB/OCC File A-1183
BY THE BOARD:
Hugo Neu-Proler Company (Hugo Neu-Proler or company) recycles scrap
metal at a facility on Terminal Island in the East Basin of Los Angeles'
Inner Harbor. Last year the International Longshore and Warehouse Union
(Union) sent several letters to the California Regional Water Quality Control
Board, Los Angeles Region (Regional Water Board), alleging that Hugo Neu-Proler's
activities had polluted the waters of Los Angeles Harbor. In the last letter,
sent in June 1998, the Union requested that the Regional Water Board take
corrective action against the company for unauthorized discharges of scrap
metal and shredder waste into the harbor. The Regional Water Board did
not respond. The Union then filed a petition for State Water Resources
Control Board (State Water Board or Board) of the Regional Water Board's
failure to act.
Footnote1 This Order remands the matter back to the Regional Water
Board for appropriate action.
I. BACKGROUND
Hugo Neu-Proler leases approximately 26 acres of waterfront and backland
property, including two shipping piers, Piers 210 and 211, from the Port
of Los Angeles. Scrap metal from various locations is transported to the
site, where it is sorted and shredded or sheared. The material is then
stockpiled and eventually loaded onto ships for transport overseas.
The Union's efforts to get the Regional Water Board's attention apparently
started in February 1998, with a 60-day notice of violations and intent
to sue under the federal Clean Water Act.
Footnote2Footnote3
This letter, which was addressed to the Regional Water Board, the United
States Environmental Protection Agency (U.S. EPA), and others, alleged
that Hugo Neu-Proler's past and present activities at its Terminal Island
site violated the Clean Water Act and other statutes.
The following month the Union sent two letters to the Regional Water
Board requesting that the Board place the waters immediately adjacent to
Piers 210 and 211 on the Clean Water Act section 303(d)
Footnote4 list as impaired due to historical and ongoing discharges
of polychlorinated biphenyls (PCBs) and toxic metals.
Footnote5 The Regional Water Board declined this request on the grounds
that the data did not support listing the entire East Basin of the Inner
Harbor.
Footnote6 Additionally, the Regional Water Board noted that, while
PCB concentrations were still elevated, they have shown a decreasing trend.
In May, the Union filed a petition with this Board for review of the
Regional Water Board's failure to respond to the 60-day notice.
Footnote7 This petition was dismissed without prejudice for procedural
reasons. The Union then sent another letter to the Regional Water Board
in June 1998 requesting that the Regional Water Board take corrective action
against Hugo Neu-Proler.
Footnote8 The Regional Water Board did not answer the Union's letter
or otherwise communicate with the Union, and this petition followed.
Under the State Water Board's petition regulations, responses to the
petition and the Regional Water Board's administrative record were due
in December 1998.
Footnote9 Hugo Neu-Proler filed a timely response and, later, a supplemental
response in opposition to the petition. The Regional Water Board, however,
did not file either a substantive response to the petition or the administrative
record. Rather, the Regional Water Board has requested that the State Water
Board informally refer this matter back to the Regional Water Board for
further consideration since staff have not had an opportunity to thoroughly
consider the issues.
Footnote10 Alternatively, the Regional Water Board has requested that
the State Water Board dismiss the petition without prejudice.
II. DISCUSSION
The Union's petition contains troubling allegations that Hugo Neu-Proler
has discharged and continues to discharge toxic pollutants into Los Angeles
Harbor. The Union alleges that Hugo Neu-Proler maintains open piles of
scrap metal near the water's edge, and that fine metal dust and nonmetallic
shredder residue from these piles are blown into the waters of the harbor.
In addition, the Union alleges that shredded scrap metal routinely falls
off the company's bulkloader conveyor system into harbor waters. The Union
cites a Los Angeles Harbor District underwater survey in 1996 that revealed
a 23-foot wall of steel debris along the bottom slope of Hugo Neu-Proler's
wharf.
Footnote11 The petition further alleges that these direct and indirect
discharges have polluted harbor waters with PCBs, DDT and metals. The petition
cites data from the State Water Board's Mussel Watch Program, a 1990 Southern
California Coastal Water Research Project (SCCWRP) study, and other sources.
Footnote12
The petition further alleges that Hugo Neu-Proler has discharged and
continues to discharge pollutants, including scrap metal shredder waste
and scrap metal, into harbor waters without a National Pollutant Discharge
Elimination System (NPDES) permit in violation of the Clean Water Act.
Footnote13 Additionally, the Union contends that the Regional Water
Board has not, to date, required Hugo Neu-Proler to investigate and clean
up sediments and water adjacent to Piers 210 and 211 that were polluted
due to the company's past scrap metal activities. Although the Regional
Water Board issued a cleanup and abatement order to the company in 1991,
based on the SCCWRP study's findings, the order did not require the company
to actually remediate polluted water and sediments.
Footnote14
These allegations are, of course, hotly disputed by Hugo Neu-Proler.
Hugo Neu-Proler contends that the company properly manages airborne deposition
of metallic dust and shredder waste and properly controls the spillover
of bulk scrap material into Los Angeles Harbor. In particular, the company
alleges that it has addressed "spillover" by installing a new ship loading
crane to load scrap metal onto ships and by dismantling the bulkloader.
Footnote15 The company further contends that the supporting studies
cited by the Union in its petition are all flawed. Finally, the company
maintains that it is currently engaged in remediation at the site.
Footnote16
Given the gravity of the Union's allegations and the fact that they
are vigorously disputed by Hugo Neu-Proler, the Board does not believe
that dismissal of the petition is appropriate. The State Water Board is
particularly concerned about the Union's allegations that Hugo Neu-Proler
directly discharges pollutants into harbor waters without an NPDES permit
and that the company has never been required to thoroughly investigate
and remediate sediment and water column pollution caused by its scrap metal
operation.
The Board is reluctant to proceed further with this petition, absent
the administrative record and the benefit of the Regional Water Board's
response. While the State Water Board could conduct an evidentiary hearing
on this matter, the Board believes, as a policy matter, that the Regional
Water Board should hear the matter in the first instance. The Board, therefore,
concludes that the matter should be temporarily remanded to the Regional
Water Board for prompt, appropriate action. The Regional Water Board Executive
Officer is directed to file a report with this Board, no later than June
30, 1999, responding to the Union's allegations. Upon receipt of the report,
the State Water Board will reconsider this matter at a regularly scheduled
Board meeting.
II. ORDER
IT IS HEREBY ORDERED that the Regional Water Board executive officer shall
file a report with this Board, no later than June 30, 1999, responding
to the Union's petition. Upon receipt of the report, the State Water Board
will reconsider this matter at a regularly scheduled board meeting.
CERTIFICATION
The undersigned, Administrative Assistant to the Board, does hereby certify
that the foregoing is a full, true, and correct copy of an order duly and
regularly adopted at a meeting of the State Water Resources Control Board
held on April 29, 1999.
AYE:
NO:
ABSENT:
ABSTAIN:
Maureen Marché
Administrative Assistant to the Board
Footnote1
See Wat. Code § 13320.
Footnote2
33 U.S.C. § 1251 et seq.
Footnote3
See id. § 1365; "International Longshore and Warehouse Union Petition
for Appeal to the [State Water Board] Regarding the Failure of the [Regional
Water Board] to Take Appropriate Corrective Action Against [Hugo Neu-Proler]
for Its Unauthorized Discharges into Los Angeles Harbor," September 18,
1998 (hereafter petition), Exh. 19.
Footnote4
Id. § 1313(d). Under this statute and U.S. EPA's implementing
regulations, states must biennially list waterbodies that do not meet water
quality standards, after application of technology-based effluent limitations.
See 40 C.F.R. § 130.7.
Footnote5
See "Real Party in Interest, Hugo Neu-Proler's Opposition to International
Longshore and Warehouse Union's Petition to the California Water Resources
Control Board Regarding the Alleged Failure of the Regional Water Quality
Control Board, Los Angeles Region, to Take Appropriate Corrective Action
Against Hugo Neu-Proler Company," December 28, 1998, (hereafter Opposition),
Exh. A.
Footnote6
See id., Exh. B., p. 42.
Footnote7
State Water Board File No. A-1151.
Footnote8
See petition, fn. 3 supra, Exh. 3.
Footnote9
See Cal. Code Regs., tit. 14, § 2050.5. Responses were originally
due by December 8, 1998. At Hugo Neu-Proler's request, this date was extended
to December 28, 1998.
Footnote10
See memorandum from Dennis A. Dickerson, Executive Officer, Regional
Water Board, to Sheila K. Vassey, State Water Board, entitled "Petition
Filed by International Shoreman & Workers' [sic] Union (ILWU)", dated
February 19, 1999.
Footnote11
See petition, fn. 3 supra, Exhs. 10 & 11.
Footnote12
See id., Exhs. 5, 13 & 14.
Footnote13
Under the Clean Water Act, it is illegal to discharge pollutants from
a point source into surface waters without an NPDES permit. See 33 U.S.C.
§§ 1311, 1342. This prohibition is not limited to pollutants
that are visible nor to pollutants that pose a demonstrated environmental
or health risk. If scrap metal spills over into harbor waters during loading
operations at the Hugo Neu-Proler site, this spillover must be regulated
under a permit.
Footnote14
See petition, fn. 3 supra, Exhs. 6 (Cleanup and Abatement Order 91-062
(May 15, 1991)) and 8. The order required Hugo Neu-Proler to stop the waterborne
and airborne discharge of metal shredder waste.
Footnote15
See Hugo Neu-Proler's Supplemental Opposition to the International
Longshore and Warehouse Union's Petition to the [State Water Board] Regarding
the Alleged Failure of the [Regional Water Board] to Take Appropriate Corrective
Action Against Hugo Neu-Proler Company, March 18, 1999, p. 10.
Footnote16
Hugo Neu-Proler is currently engaged in soil and groundwater remediation
on the landward portion of the leased site. See Opposition, fn. supra,
text and Exhs. F (Waste Discharge Requirements for soil remediation, Order
96-020, adopted April 1, 1996), G & H.