The Port of Los Angeles is expected this week to unveil a business plan for the long-delayed $1.8 billion initiative that would replace dirty diesel trucks with clean-burning new ones. But one issue that has been controversial from the beginning is now threatening the future of the entire clean-truck program.

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The issue centers on a union-backed provision that would ban from the ports the independent truckers who own and operate their rigs. Instead, the drivers would be employees of truck firms, paving the way for worker unionization.

The provision enjoys the strong backing of Los Angeles Mayor Antonio Villaraigosa, a former union organizer, and the entire five-person Los Angeles Harbor Commission. But the majority of its sister commission at the Long Beach port has resisted the employee mandate, saying an overhaul of the labor structure should not muddy a groundbreaking environmental initiative.

"There are some members of the Long Beach commission who feel very strongly that we can move forward with cleaning up the air without dealing with the employee issue, which is likely to bring a lawsuit and tie up the whole clean air effort for years," said James Hankla, a Long Beach commissioner who opposes the mandate.

"I do not expect it will be included in whatever version is approved in Long Beach," he added.

On the five-member board, only Long Beach Harbor Commission President Mario Cordero has expressed support for the mandate.

Since most motor carriers serve both ports, the harbor commissioners have said they will only approve identical plans and will not move ahead until both boards are on the same page. Therefore, more negotiations and compromise appear inevitable.

And now, groups on both sides of the issue have begun publicly challenging it, leaving little likelihood that the program will begin by its anticipated start date in October.

"Everyone involved has made it quite clear that they plan to file a suit," said Kristen Monaco, a trucking expert and economics professor at California State University Long Beach.

"The amount of time this is going to be held up with these legal challenges is not going to help the environment or the ports' public relations problems with the communities surrounding the ports."

Big plans

The port complex generates more air pollution than all of the region's six million cars, which contributes to asthma, lung cancer and other illnesses, according to the South Coast Air Quality Management District. Mounting political pressure and community outcry over the noxious fumes pumped out of the ports led them to pass their landmark Clean Air Action Plan in 2006.

As the first major piece of the plan, the ports are piecing together a program that would slash diesel truck emissions by 80 percent in five years by subsidizing the replacement of the roughly 16,000 short-haul trucks with cleaner-burning models, some of which run on alternative fuel.

Already, the two harbor commissions have approved a cargo fee that will help fund the $1.8 billion program, as well as a schedule for the phased ban of the oldest trucks, which is set to begin in October.

But the controversial employee provision remains undecided, mainly because it is a radical departure from the long-established way the truck industry operates at the ports. With that system, more than 1,000 mostly small truck companies contract with independent drivers who typically own and drive their own trucks.

Under the proposed system, the subsidized clean trucks would be owned as fleets and maintained by companies, not individuals. The companies would hire truck drivers as employees.

The ports contend requiring the drivers to become employees is necessary to maintain a stable workforce, but trucking companies fear it would open the door to the International Brotherhood of Teamsters, which has tried to organize drivers for years. The trucking industry has resisted the move, saying the ports do not have the authority to restrict and regulate the business.

The ports are expected as early as this week to unveil a business plan that will provide some details including how the funds will be distributed but a decision on the employee mandate will likely be pushed until at least next month.

"I do expect that we will soon have the final parameters," said Cordero, who supports the provision. "It's been a challenging endeavor. What we've done here at these ports is the most aggressive, progressive environmental initiative in the port maritime industry."

Discussions have dragged on for almost a year and few details have been revealed, leaving a number of motor carriers anxious as the start date draws near.

Kevin Dukesherer, director of Progressive Transportation Services Inc., a Bell-based motor carrier with about 200 trucks in California, said he is having a hard time running his business because he doesn't know what his costs and responsibilities will be over the next year.

"It's been hard to negotiate (transportation rates) with our customers, it's been hard to negotiate leases on our facilities," he said.

Dukesherer is not currently housing trucks, but he recently began leasing a $26,000-per-month facility in anticipation of changes to the industry that will force him to buy and store new rigs. The uncertainty is also difficult for drivers, he said, who don't have any idea what they should be doing to get ready.

"They're very concerned about how they're going to get a truck, who's going to pay for the truck," he said. "There's so much misleading information out there."

If the ports fail to begin the program on time, some trucking companies fear it could throw their industry into disarray, as most companies have already begun making plans for the expected changes.

And a lengthy delay whether due to harbor commission disagreements or legal challenges could threaten the entire program as approaching state regulations could render the port plan unnecessary.

One trucking industry executive who asked not to be named said it would be very difficult to work out the logistics of replacing the oldest trucks and installing the necessary equipment in new rigs before the program is set to begin in October.

"Can we do all of this in time? Databases have to be set up, contracts have to be set up," the executive said. "If it wasn't for the employee mandate, this program would have been done six months ago."

Legal authority

Environmental groups have backed the move to make drivers employees on the grounds that only motor carriers could afford to maintain the expensive new rigs. As independent contractors, the drivers would be responsible for the costs.

"These folks don't have the money to repair the trucks," said David Pettit, senior attorney at the Natural Resources Defense Council. "The air would be cleaner whether those folks were employees or not, but things (on the trucks) break down and things wear out."

The council, an influential environmental group, is demanding that the ports move ahead with their clean air program, including the employee-based truck plan.

The group even went so far as to threaten a lawsuit against the Port of Long Beach if its demands are not met within a 90-day window. (The NRDC said it will await the outcome of its appeal of a proposed terminal expansion project in Los Angeles before bringing a similar threat to the L.A. port.)

If the group does bring a suit, Pettit said, it would likely take at least a year to resolve.

But environmentalists are not the only ones threatening suits. The trucking industry has long fought the plan that they say violates federal law.

"If the ports move forward with an employee mandate we will have them in court for many, many months," said Curtis Whalen, executive director of the intermodal motor carriers conference of the American Trucking Association. "I've already spent a lot of money retaining legal counsel we're just waiting for the event to occur."

He questioned the ports' authority to upend the industry and dictate a business model. "The local ports do not have the ability to mandate routes, rates and services between the interstate trucking community," he said.

If the issue goes to court, some experts believe the trucking industry would prevail.

"I think it's really hard to think that the employee part could possibly be legal," said Monaco, the trucking scholar. "There are clearly anticompetitive elements to this I don't know how you say to the owner-operator, 'Even if you have a clean truck we're not going to let you operate your business anymore.'"

Some port leaders, however, say they are not letting threats influence their discussions.

"No one likes to be sued, but we are not going to do what we think is wrong because somebody threatens to sue us," said Los Angeles Harbor Commission President David Freeman. "I'm not influenced by threats of lawsuits, I am influenced by what is right or wrong. And what is wrong is the drayage system at the ports."

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