Clean Ports Act of 2013 Introduced to Empower Local Ports to Reduce Environmental Pollution, Mitigate Traffic Congestion, & Improve Highway Safety

Clean Ports Act of 2013 Introduced to Empower Local Ports to Reduce Environmental Pollution, Mitigate Traffic Congestion, & Improve Highway Safety

Washington, D.C. – Today, Senator Kirsten Gillibrand (D-NY) and Congressman Jerrold Nadler (D-NY) introduced legislation in both the United States Senate and House of Representatives to make it clear that U.S. commercial ports possess the authority to implement environmental programs that will reduce the health, environment, and safety risks port operations pose in local communities. Such programs would – if enacted and enforced by ports – improve air quality and mitigate the impact of port trucking on the 87 million Americans that live in port communities.

Communities surrounding U.S. commercial ports have long expressed dire concerns regarding port-generated emissions in their neighborhoods. A major contributing factor to these emissions is that the estimated 110,000 diesel trucks that haul containers to and from our ports tend to be some of the oldest and most polluting on the roads today.  A large number of these port trucks fail to meet current EPA emission standards, increasing malignant toxins by 1,000%. Today’s modern trucks, when properly maintained, emit lower diesel emissions and create a greener and safer port.

Many major ports have initiated programs to reduce emissions from port trucks, including the Port Authority of New York & New Jersey, Virginia Port Authority, Port of Houston, Port of Charleston, Port of Seattle, Port of Oakland, Port of Long Beach, and the Port of Los Angeles. The Port of Los Angeles, which adopted the LA Clean Truck Program in 2008, has:

  • Banned more than 10,000 late-model, heavier polluting trucks;
  • Provided nearly $200 million in port subsidies and leveraged more than $600 million in private investment of 10,000 clean diesel and natural gas fuel trucks; and,
  • Reduced diesel pollution by approximately 80%.

This landmark program has led to 100% of port gate moves being made by cleaner trucks, and made Southern California the preeminent market for alternative-fuel truck technology. However, federal court rulings, including the U.S. Supreme Court’s decision in the American Trucking Association v. the City of Los Angeles, have left unanswered whether ports can insist that trucking companies take steps to assure their fleets remain clean.

Further, inadequate federal oversight over trucking companies has allowed companies to shift financial responsibility for purchasing and maintaining trucks onto individual drivers and their families. Independent studies show that port drivers typically live near or below the federal poverty line; many are paid less than federal or state minimum wages and rely on Medicaid for health care; and, as federal and state government authorities have determined, are misclassified as independent contractors. In California, misclassified drivers have filed more than 500 wage and hour claims valued at approximately $50 million in illegal deductions of clean truck lease payments, fuel, and insurance from their paychecks. The California Labor Commissioner won her first case in court against a company for makings its drivers pay for the cost of purchasing and deploying clean trucks. Further, eight class action lawsuits have been filed against trucking companies, leaving the total potential liability to the Los Angeles and Long Beach port trucking industry in excess of $100 million.

The Clean Ports Act of 2013 will empower – but not mandate – local ports to adopt and enforce requirements that will serve to reduce pollution, mitigate traffic congestion, improve highway safety, and enhance efficient utilization of port facilities.

“People living near the Ports of Los Angeles and Long Beach have suffered health problems for too long due to dirty trucks,” said Melissa Lin Perrella, senior attorney for Natural Resources Defense Council (NRDC). “We need to ensure ports have the authority to readily address these local threats to public health and safety. The Clean Ports Act will safeguard the Southern California Clean Truck Program and other innovative clean truck programs adopted across the nation, while encouraging other ports to improve the quality of their operations to reduce harmful air pollution in their communities.”

“We must take action now to clean up our ports to ensure we protect workers, the communities nearby, and the environment,” said David Foster, Executive Director of the Blue Green Alliance. “The burden for doing that should not fall on hard working truck drivers already suffering under low wages and deplorable working conditions. Instead, industry should foot the bill to ensure public health and cleaner ports.”

“Port pollution has a severe effect on drivers and the 87 million Americans who live in nearby communities. Every American deserves to live and work in a community with clean air,” said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. “The Clean Ports Act would empower local ports to adopt requirements that would help reduce pollution and traffic congestion and improve highway safety. Further, local ports would be empowered to extend essential civil rights and labor law protections to drivers, who are currently misclassified as independent contractors.”

“The transfer of responsibility for owning and operating port trucks from trucking companies to drivers over the last thirty years, and paying those drivers too little to properly maintain the trucks, has led to an air quality crisis in harbor communities,” said Jim Hoffa, General President, International Brotherhood of Teamsters. “The Clean Ports Act will allow ports to modernize the industry and clean the air without pushing drivers beyond the financial breaking point.”

“The Ironbound Community of New Jersey – one of America’s most polluted neighborhoods – needs Congress to give the Port Authority of New York/New Jersey the tools it needs to clear the air,” said Ana Baptista, Director of Environmental Policy for the Ironbound Community Corporation. “Right now, the Port tells us that their hands are tied because the laws are not clear and they don’t want to be sued by the trucking industry. The Clean Ports Act will resolve this problem so that the port can demand that trucking companies that do business at the port comply with Federal air quality rules.”

“The Port of Los Angeles took a bold step in adopting the Clean Trucks Program,” said Roxana Tynan, Executive Director of the Los Angeles Alliance for a New Economy (LAANE). “Tragically, the incredible environmental successes achieved are at grave risk because the ports have limited ability to hold the trucking industry accountable for keeping these trucks clean. Los Angeles needs the Clean Ports Act to assure that the emissions reductions that we have achieved are sustainable.”

“Chatham County Georgia, home to the Port of Savannah, ranks third worst in the state for health risks from diesel exhaust. Too many people are sick and dying and our port needs the tools to make change,” said Jerome Irwin, former port truck driver serving the Port of Savannah, Georgia (now a Teamsters organizer). “Even if every driver was given a modern truck, the so-called “independent contractors” servicing the trucks couldn’t afford to maintain them and keep them clean burning.”

“The Puget Sound region, home to the Port of Seattle, is in the top 5 percent of communities nationally for air toxics,” said Genevieve Aguilar, Ports Campaign Director for Puget Sound Sage. “The Port of Seattle wants to demand change, but has been hesitant to do so because of vague and confusing Federal laws. The Clean Ports Act will clarify those laws and allow these harbor communities to be cleaned up and more livable.”

“Congress must act to provide New York, and cities all across the country, with the common sense tools they need to improve the quality of air and quality of life for millions of people,” said Senator Kirsten Gillibrand (D-NY). “It’s time to update federal laws and allow our nation’s ports to help reduce diesel emissions and improve air quality for all New Yorkers by putting clean trucks on the road.”

“With an estimated 87 million Americans living in communities near ports which fail to meet federal air quality standards, Congress must take action to address the pollution generated by ports and port trucking,” said Congressman Jerrold Nadler (D-NY). “Pollution from dirty trucks greatly increase rates of asthma, cancer, and heart disease, creating a growing public health crisis. The Clean Ports Act will update federal environmental law to allow forward-thinking ports to implement clean truck programs that will improve air quality and decrease incidents of pollution caused illnesses.”

Trash talk and the real dirt on a ‘toxic tour’ of Los Angeles

By Tony Barboza July 27, 2013, 7:21 p.m.

You won’t find any homes of the stars on this tour bus as it shuttles rubber-necking sightseers through Los Angeles.

You may not even see the Hollywood sign through the haze from the smokestacks, rail yards and refineries along this “toxic tour” through neighborhoods southeast of Los Angeles.

“To your left is a brownfield,” guide Roberto Cabrales announces from the front of the bus to two dozen tourists aboard. “To your right, that’s a former steel company. It’s contaminated with heavy metals.”

The half-day excursions by the advocacy group Communities for a Better Environment were begun in 1994 as a way to show a handful of government officials the consequences of their decisions in low-income and predominantly Latino communities.

Increased demand for the tour from universities, school groups and families now has the Huntington Park-based organization hosting hundreds of visitors on dozens of bus trips a year. Admission is free, but donations are sought to pay for the bus rental.

Lately, curious residents have also been climbing aboard.

Luis Reyes, a 19-year-old college student from Inglewood, brought his two younger brothers and sister, ages 15, 11 and 13. “I want them to understand the effects of how we live and where we live,” he said.

Los Angeles is not alone in offering these kinds of excursions. Environment-themed reality tours exist across the country, including in the San Joaquin Valley.

The L.A. tour starts with the shuttered factories and weed-covered lots of Huntington Park and South Gate, once a manufacturing hub.

“Under your seats there is a gas mask,” jokes Cabrales, a community organizer in plastic-rimmed glasses and a goatee who peppers his narrative with historical references, health statistics and jocular asides.

At Raul R. Perez Memorial Park, he shows off a playground that sits where a five-story pile of freeway rubble from the 1994 Northridge earthquake loomed for years, sending noxious dust into a neighborhood that named the mound La Montaña: The Mountain. It took years for it to be removed.

At another stop, sightseers step off the bus to watch trains rumble through the Alameda Corridor, a below-ground trench through which shipping containers from the nation’s largest port complex in San Pedro and Long Beach head for a massive rail yard near the 710 and 60 freeways in Commerce.

Next they see the metal recyclers and scrap yards, where old cars and bed frames tower high above homes that for years have complained about the smell and noise.

As the bus crosses into Maywood, next to the almost exclusively industrial city of Vernon, Cabrales says, “Here you can see the residences and just how close they are to industry.”

When the bus pulls up at a rendering plant in Vernon, riders give a collective gasp. They pinch their noses and cover their mouths as a view over the fence of Baker Commodities reveals a pile of dead dogs, a horse carcass and animal byproducts awaiting processing.

Next is the Exide Technologies battery recycling plant in Vernon, where a white plume spews into the air and Cabrales tells everyone to stay in the bus. State officials temporarily closed the plant in April after environmental regulators found its arsenic emissions posed a health risk to as many as 110,000 people in surrounding communities. A judge allowed the plant to reopen earlier this month.

The bus cruises down the 710 Freeway, where tens of thousands of trucks travel in and out of the port complex every day, putting adjacent communities at higher risk of asthma and cancer. The sightseers snap photos of the shipping containers and cranes as the driver heads toward Wilmington, an L.A. neighborhood surrounded by several oil refineries and the Port of Los Angeles.

The group gets out of the bus on a dead-end street where rows of tidy houses sit just beyond the fence of the ConocoPhillips oil refinery. They see the white plumes and, above the sound of machinery, hear about the nighttime flaring that bathes the neighborhood in an eerie orange glow.

For lunch, the tourists stop to reflect at Wilmington Waterfront Park. The 29 acres of trees, lawns and hills opened in 2011 as a buffer zone between homes and the port. Still, signs warn visitors of methane gas intrusion from the soil below.

“It really hits close to home,” said Karen Díaz, a Cal State Long Beach student who grew up in Downey. “Had I ever gone to Wilmington and seen the smokestacks? No. You see these things, but you drive past them.”

Copyright © 2013, Los Angeles Times

Supreme Court Blocks Industry Bid to Kill Clean Truck Program

by Jon Zerolnick

Last Thursday the U.S. Supreme Court ruled in a case that had the potential to impact millions of people in Southern California – people who have been breathing cleaner air thanks to the Port of L.A.’s Clean Truck Program. The Clean Truck Program is an innovative policy that has been successful in reducing port-related truck emissions by as much as 90 percent. But it has enemies, most notably the trucking companies who profited from the dirty, unregulated system as they worked on behalf of Walmart, Target, and every other big importer.

The national trucking lobby, on behalf of these firms, sought to kill the program by challenging it in court. As we passed environmental and public health milestone after milestone, the trucking industry filed legal motion after legal motion, and the case bounced between all levels of courts. But Thursday was the big one—the highest court in the land finally weighed in on the legality of the program overall. This ruling would be the culmination of almost five years of litigation filed by the industry (not the truck drivers), litigation that was filed even before the Clean Truck Program went into effect in 2008.  And while many of us had been waiting for this ruling for a long time, when it finally came down, it was, frankly, pretty unremarkable.

But then the industry declared victory.

Huh? I quickly re-read the complete ruling, and then re-read it again.

Sure, the Supreme Court had thrown out two minor provisions on parking and listing phone numbers (more below). But the heart of the Clean Truck Program was intact. The trucking lobby had attempted to kill the program in the courts, and they failed. Today we are right where we were on Wednesday, before the ruling. The Port of L.A. has a successful program cutting lethal pollution, and there is still serious work to be done in order to sustain those gains.

An Innovative Program

The Clean Truck Program was developed by the Port of L.A., based on input from theCoalition for Clean and Safe Ports – some 40+ Southern California organizations including environmental, public health and environmental justice groups; immigrant-rights, faith-based, and community groups; unions and worker groups.  We were all concerned about a failed port trucking system that provided crappy jobs, failed to mitigate its impacts on the community, and literally killed three people every week from excessive tailpipe emissions.

So the port developed a set of standards for the industry, and required accountability from trucking companies. Hundreds of companies would have to upgrade a fleet of over 12,000 trucks to meet more stringent emissions standards.  And those companies would have to sign contracts with the port (“concession agreements”), agreeing to a set of operational standards and port oversight. The idea of port oversight didn’t sit well with the trucking companies, who wanted the basic framework of these agreements thrown out, claiming that the port had exceeded its authority.

Five years later, as the trucking industry continued to fight the program, we’ve managed toreduce truck emissions by 80 to 90 percent.

The Supreme Court Rules

Victory for the trucking industry? Yes, two provisions in the concession agreement were thrown out. The Port of L.A. had required trucking companies to develop a plan for off-street parking, so that local residents would not have to deal with big rig trucks parking in neighborhoods. And the port had required companies to affix a placard on each truck with a phone number, so that community members could call the port if they saw a truck involved in something unsafe. The Supreme Court found that the parking and “How’s My Driving” placard provisions were preempted by a Federal law (the Federal Aviation Administration Authorization Act, or the F4A if you want to sound cool). It is disappointing that these program elements will not be available to residents and other community members affected by the trucking industry.

(A third provision – that would have required trucking companies to hire drivers as employees rather than so-called “independent contractors” – was already struck down in a lower court.)

But the real news is that despite the industry’s crowing, they failed to get what they really wanted: a return to unaccountability.  The Supreme Court declined to change the basic structure of the Clean Truck Program: the concession agreement itself. This is the heart of the environmental program, and it remains intact. The Port of L.A. may continue to require that cleaner, less polluting trucks serve the port, that the trucks be properly maintained, and the port remains able to bar trucks that do not comply.

Let me put it like this: It is disappointing to lose the two minor provisions, but there is no way the industry would have invested millions of dollars and taken litigation to the Supreme Court simply to preserve on-street parking and avoid a few “How’s My Driving?” placards.

Where Now?

The problem for the Clean Truck Program today is the same problem we’ve had since day one: the misclassification of truck drivers as “independent contractors.” As many as 90 percent of America’s port truck drivers are misclassified as “independent contractor drivers,” beholden to a single trucking company, paid by the load, but saddled with lease payments and operating costs for trucks they don’t own, and with high self-employment taxes. With no ability to control the fees drivers receive for the containers they haul, there is rarely money left at the end of the month to properly maintain the trucks. This results in trucks that are poorly maintained and are more likely to produce malignant fumes that affect the air quality in the ports and the neighboring communities.

In other words, we’ve done a great job at getting old trucks off the road and new trucks in service, but we haven’t yet solved the problem of sustainability. As one port driver recently said, “I cannot afford to maintain the new truck I drive. We just aren’t paid enough to buy diesel, insurance and tires, and to maintain our trucks to clean air standards. This rig is pretty new, but it’s already falling apart because I can’t afford to fix it. Something has got to change.” Most drivers take home around $30,000 a year; annual maintenance costs exceed $8,500 on these newer trucks.

This is why the Port of L.A. wanted trucking companies to hire drivers as employees: to shift the responsibility for truck operations and maintenance from individual drivers to the trucking companies themselves, which can ensure the trucks are properly maintained.

But there’s more than one reason to address the employment status of drivers. Namely, that – despite what the companies call them – drivers are not truly independent contractors in the first place. Drivers understand that with this bogus label, companies are stealing from them. So drivers have been taking action on their own: filing hundreds of claims with the state Labor Commissioner, and filing lawsuits against the companies they work for, seeking to be recognized as the employees they truly are.  Hundreds of thousands of dollars in judgments have already been levied against companies that have inflated profits by pocketing payroll taxes, denying benefits, and pushing maintenance costs onto the drivers.

The Coalition will continue to work with drivers to address the problem of misclassification. And we will work with the port to ensure that, with the litigation in the rear-view mirror, robust enforcement will begin. With these two elements in place, we can shift the Clean Truck Program from the great start it is into the truly transformational program it needs to be.

Jon Zerolnick is director of LAANE’s Clean and Safe Ports Project.

U.S. Supreme Court Rules Against Elements of Port of Los Angeles Clean Truck Program

Action Needed to Shift Responsibility of Maintaining Clean Trucks to Trucking Companies

LOS ANGELES (June 13, 2013) Today, the United States Supreme Court ruled that the Port of Los Angeles may not implement two provisions of its Clean Trucks Program: its “off-street parking” and “placard” requirements. The heart of the Port’s environmental program adopted in October 2008 – the concessions approach – remains intact. The Port of LA may continue to require that cleaner, less polluting trucks serve the port, and that the trucks be properly maintained. The Port of LA remains able to bar trucks that do not comply with the landmark environmental program, which has widely been credited with reducing toxic truck emissions by more than 90 percent.

“We are pleased that the basic framework of the Clean Truck Program (CTP) remains intact,” said Jessica Tovar of the Long Beach Alliance for Children with Asthma. “The CTP has led to a dramatic improvement in the air quality in harbor communities, allowing children afflicted with asthma to breathe easier. Now we need the trucking company owners – not the drivers – to take responsibility for the maintenance of the trucks so that the air stays clean.”

The misclassification of port truck drivers as “independent contractors” stands at the root of the problem that affects the quality of air at our nation’s ports and neighboring communities. As many as 90 percent of America’s port truck drivers are misclassified as “independent contract drivers,” beholden to a single trucking company, paid by the load, but saddled with lease payments and operating costs for trucks they don’t own, and high self-employment taxes. With no ability to control the fees drivers receive for the containers they haul, there is rarely money left at the end of the month to properly maintain the trucks. This results in trucks that are poorly maintained and are more likely to produce malignant fumes that affect the air quality in the ports and the neighboring communities.

“We can’t afford to maintain the new trucks we drive,” said Salvador Miranda, a misclassified port truck driver. “We just aren’t paid enough to buy diesel, insurance, and tires, and to maintain our trucks to clean air standards. These rigs are pretty new, but they are already falling apart because we can’t afford to fix them. Something has got to change.”

Independent Contract Drivers coast-to-coast are filing “Wage and Hour Claims” with the government agencies charged with enforcing labor laws. Hundreds of thousands of dollars in judgments have already been levied because drivers have been found to be employees – not independent contractors – against companies that have inflated profits by pocketing payroll taxes, denying benefits, and pushing maintenance costs onto the drivers.

How Organizing for a Union Changed My Life

by Orlando Ayala

I was recently accused of thinking with my heart and not with my head, of letting my passions and outrage get the best of me and guide my actions. At the time, this wasn’t a compliment. But these traits have served me well. If not for them, I may not have crossed multiple borders seeking a better life in the U.S., or been driven to action by the outrage I felt at seeing injustices suffered by the thousands of port truck drivers at the largest port in the country.

Doing away with those injustices — starting at my company, Toll — was something that I and dozens of my co-workers embarked on two years ago. We weren’t foolish enough to think that it was going to be easy, but we decided to organize and fight for improved working conditions, better wages and union recognition anyway. It turned out to be the fight of our lives but we stuck together and now we are proud members of Teamsters Local 848. We are the first U.S. truck drivers in 30 years to win union representation through an election.

I was fortunate enough to be part of the team that negotiated our first contract. Here’s what we won:

A raise and benefits: A better wage is not the only reason we decided to organize. But I can’t lie to you – it is something that has made a real difference for me and my family. Now I earn six dollars more per hour than I was making without a contract. I worry less about whether I can be a good provider for my family. Reducing my out-of-pocket medical expenses is also a huge relief – I went from paying close to $109 a week for my healthcare premium to $40 a week. And it became easier for me and my family to take care of medical needs we’ve been putting off. In fact, since winning our contract, I celebrated by taking all three of my girls to get braces! We also won a pension – something that many of us never had imagined having. Now we have the hope that there is something good waiting for us after a long road and many years working as a truck driver.

Peace of mind: I’ve been driving at the ports for more than 10 years and I’ve never had a minute of peace on the job. The entire time – whether as an “independent contractor” or as an employee driver – I’ve always felt an immense pressure on the job. It’s always been a race – to get the container to the warehouse, to get empties to the port. I drove fast and drove long (sometimes up to 16 hours straight), always feeling like any wrong move, any small mistake could end my job (or even my career). It’s a horrible feeling to have day in and day out. Now that cloud has lifted. There are safeguards in place so that my employer can’t fire me for simple mistakes. I feel like I can be a true professional driver – abiding by traffic laws, driving safely – without being penalized.

Respect: There are some things we won that are worth even more than money. Being treated with respect is one of those. I never believed that simply because I’m an immigrant and don’t have much of a formal education I should be treated with less respect than anyone else. I’ve worked hard and have created great wealth for this country and my bosses, as have many immigrant workers in this country, and I deserve to be respected. When I joined with my co-workers, we gained a level of respect that none of us could ever have won fighting alone.

I was very proud to sit at the negotiating table across from high-level officials from Toll, representing the rest of my co-workers and our interests. It didn’t matter that I don’t speak English or have a degree — I still felt confident and made sure that our demands were heard.

We accomplished something great at Toll. But our work is not done. We can’t be the only port truck drivers with a success story to tell. I hope that our story provides hope and courage to other drivers, and inspires them to organize. It’s not an easy path and there are risks. But we proved that if you are committed and unite with your co-workers, you can achieve great things – respect, a voice, economic security – for you and your family.

(Orlando Ayala has been a truck driver at the ports of L.A. and Long Beach for 10 years. He recently sat down and talked to LAANE Deputy Director Patricia Castellanos about the successful effort to improve conditions at Toll, the global logistics company where he works. Yesterday marked the one-year anniversary of the election in which Toll workers chose to be represented by a union – the first such election in three decades.)