ITEM: 13

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.

The proposed order remands the matter to the Regional Water Board.  The proposed order directs the Regional Water Board to conduct an evidentiary hearing by o later than August 31, 1999.

POLICY ISSUE: Should the State Water Board adopt the proposed order 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.

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) review of the Regional Water Board's failure to act. Footnote1 This Order remands the matter back to the Regional Water Board for appropriate action.

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.

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 an evidentiary hearing no later than August 31, 1999.  The purpose of the hearing will be to receive evidence on the Union's allegations and any other matters the Regional Water Board deems appropriate.  At the conclusion of the hearing, the Regional Water Board may consider a variety of responses, including, but not limited to, no action, issuance of an enforcement order, and adoption of an NPDES permit.

The Board would like to stress that nothing in this Order should be interpreted to prevent the Regional Water Board from acting on the Hugo Neu-Proler site prior to the evidentiary hearing.  The Regional Water Board may take any appropriate action, during this time, including issuing a request for a technical or monitoring program report. footnote 17

The Regional Water Board Executive Officr is directed to file a status report with this Board, no later than September 30, 1999, describing what actions, if any, the Regional Water Board has taken on the Hugo Neu-Proler site.  The State Water Board will retain jurisdiction over this matter pending further developments.
 

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.

IT IS HEREBY ORDERED that the Los Angeles Regional Water Quality Control Board shall conduct an evidentiary hearing, as described in the Order, no later than August 31, 1999.

IT IS FURTHER ORDERED that the Los Angeles Regional Water Quality Control Board (Regional Water Board) Executive Officer shall file a status report with the State Water Resources Control Board, no later than September 30, 1999, describing what actions, if any, the Regional Water Board has taken on the Hugo Neu-Proler site.

IT IS FURTHER ORDERED that the State Water Resousrces Control Board will retain jurisdiction over this matter {In the Matter of the Petition of International Longshore and Warehouse Union, A-1183}pending further developments.
 

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

Footnote 17
See Wat. Code Sections 13267 and 13383.