HomeMy WebLinkAbout33 - Fire Rings - Correspondence"RECEIVE? R AGEN
PRNIVTEI : ff T
Brown, Leilani
From:
Denys Oberman [dho @obermanassociates.com]
Sent:
Friday, November 22, 2013 1:23 PM
To:
Kiff, Dave; Brown, Leilani
Subject:
Beach Fire Rings proposal- PLEASE DISTRIBUTE TO CITY COUNCIL MEMBERS AND
ENTER INTO PUBLIC RECORD
The City is proposing to change its previous position,
We appreciate that,while many residents oppose the fire rings for public health and safety and nuisance reasons, there
is sentiment from some members of the public in connection with maintaining fire rings issued traditionally with
families and small groups of friends for an occasional gathering.
We could support the continuation of a limited number of fire ring facilities subject to the City's commitment to
consistent regulation :
1- Using natural and low emission substitute wood.
2- Limitation of the number of fire rings to 6 in each of the proposed areas, at distance at least as far from residential
zones as current rings
3- Maintain fire ring size to current ring scale
4- Commit to and allocate regular nightly Beach patrol to strictly enforce Beach hours, and administer citations
associated with nuisance violation and vandalism.
We express concern with, and object to the following:
1. Gas -fired pits requiring gas lines or tanks.The cost and prospective safety hazards associated with Gas lines and
facilities make this a Non - starter from a public safety perspective.
2. The number of fire pits can be significantly reduced from the proposed number to a total of not more than 12-
14. The pits should be located as far away from residences as possible
3. Larger scale fire pits will potentially promote large group assemblies ,increasing incidence of nighttime coastal
area parking in residential areas, smoking and loitering and nuisance violations.
4. The City is already burdened with increased needs to enforce public safety and nuisance disturbances. Most of
this falls in the coastal community.
The City Police Dept claims that it is already constained by budgets relative to its ability to regularly patrol and
enforce in our coastal zones.
Thank you for your consideration.
Denys Oberman
Resident and community stakeholder
Regards,
Denys H. Oberman, CEO
^? w A
i
OBERMAN Strategy and Financial Advisors
2600 Michelson Drive, Suite 1700
Irvine, CA 92612
Tel (949) 476 -0790
Cell(949)230 -5868
Fax(949)752 -8935
Email: dho(d,)obermanassociates.com
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Received After Agenda Printed
Agenda Item No. 33
STATE OF CALIFORNIA- NATURAL RESOURCES AGENCY 11 -26 -13 EDMUND G. BROWN, JR., GOVERNOR
CALIFORNIA COASTAL COMMISSION
South Coast Area Office
200 Oceangate, Suite 1000 `mom
Long Beach, CA 90802 -4302 -
(562) e90-5071 November 26, 2013
Honorable Mayor and Members of the City Council
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
RE: City Manager's Report to City Council for the November 26, 2013 Hearing
— Agenda Item No. 33 — Beach Burning/Fire Rings
Dear Mayor and City Council Members:
The Coastal Commission staff is taking.this opportunity to comment on the City of Newport Beach
staff recommendation addressing the City's compliance with the South Coast Air Quality
Management District (AQMD) Rule 444 related to beach burning. The beach burning/fire rings
agenda item referenced above is scheduled for possible action today by the Newport Beach City
Council.
The City staff report recommends that the City comply with the AQMD's revised Open Burning
Rule 444 by increasing the separation between fire rings to 50 feet at Corona del Mar State Beach
and the city beach east and west of the Balboa Pier. This would reduce the number of wood burning
fire rings on the City's beaches from 60 to 27 resulting in the loss of 33 fire rings. As indicated in
the attached Commission staff letter to AQMD commenting on the proposed changes to Rule 444
(sent to Barry Wallerstein on July 10, 2013), the fire rings offer a unique lower cost visitor- serving
and recreational opportunity protected by the public access and recreation policies of Chapter 3 of
the Coastal Act. Therefore, the Commission -staff s preferred alternative would be no net loss in the
number of fire rings on the City's beaches.
If the City chooses to apply AQMD Rule 444(d)(3)(G)(ii)(IIl) related to separating beach burning
devices 50 feet from one another in contiguous beach areas, public recreational demand for use of
the rings and all feasible alternatives to the loss of any rings should be analyzed. This analysis
should include, but not be limited to, dispersal of some of the existing fire rings to other public
beaches in the City, retention of charcoal -only fire rings, and use of alternative fueled fire rings to
address concerns about air quality. The results of such analysis would be required as part of an
application to the Coastal Commission for a coastal development permit (CDP) which would be
required for any modification to the type, location and /or number of beach fire rings within the City.
The Commission staff supports the participation of Newport Beach in the South Coast Air Quality
Management District's alternative fuel demonstration project. The installation of natural gas fire
rings constitutes development and would require a CDP from the Coastal Commission. Any part of
a management program that results in temporary closure to use of the fire rings or establishment of
a reservation system would also be subject to Commission review through a CDP. Staff encourages
a program that would allow unrestricted use of the fire rings to all members of the public similar to
their current use.
We support the City and the AQMD taking all necessary precautions to protect public safety during
the testing stage and beyond. Although natural gas fire rings are becoming more commonplace at
Agenda Item No. 33 — Beach Burning/Fire Rings
Page 2 of 2
homes, hotels, resorts, and restaurants in some coastal communities, they are new to the beach
environment. Potential impacts of sea -level rise, high tides storms, and the City's beach - grooming
practices should be taken into account when deciding where to place natural gas fire rings requiring
underground gas pipelines. It is important that the public be educated in the safe use of all types of
fire rings. We support the City preparing educational materials and signage in English and Spanish
promoting public use of the fire rings and proper burning materials. We also concur with the city's
proposal to sell natural firewood or fire logs, which produce less smoke.
As you are aware, the potential removal of wood - burning fire rings has sparked intense controversy
in Orange County with over 30,000 signatures gathered on petitions opposing elimination of the fire
rings. The California Legislature expressed its support for protection of fire rings in Assembly
Concurrent Resolution 52. That measure recognizes the tradition and cultural significance of beach
fire rings as a recreational and community activity, which is safe, inexpensive, and enjoyed by all
the members of our community, regardless of socioeconomic class. The status and requirements of
the AQMD Rule would be taken into consideration at the time of Commission review of any CDP
application to modify the number or type of fire rings. We encourage the City to pursue alternatives
that result in retention of the maxnnum number of fire rings on the City's beaches.
Regarding the potential for a local government to rely on Rule 444(d)(4) to declare fire rings a
public nuisance and dictate that the offending devices "not be made available by a state or local
authority," AQMD's rulemaking action does not supersede existing state statutory and judicial
authority. Thus, a local government must adhere to existing statutory and judicial authority that
governs the legal limits of its nuisance declaration and abatement activities. A more detailed
discussion of the Commission's position on this issue is included in the attached letter to AQMD.
Thank you for the opportunity to comment on this matter. Please note that these comments are
those of the Coastal Commission staff and not of the Commission itself. Please forward this letter
for consideration by the City Council at today's hearing.
Sincerely),
Karl Schwing
Coastal Program Manager
South Coast District
Enclosures — Letter to AQMD dated July 10, 2013
Assembly Concurrent Resolution 52
cc: Dave Kiff, City Manager
Sherilyn Sarb
Jeff Rabin
Assembly Concurrent Resolution No. 52
RESOLUTION CHAPTER 52
Assembly Concurrent Resolution No. 52— Relative to state beaches.
[Filed with Secretary of State June 20, 2013.]
LEGISLATIVE COUNSEL'S DIGEST
ACR 52, Allen. State beaches: fire rings.
This measure would recognize the tradition and cultural significance of
fire rings on state beaches as part of California's recreational and community
activity, and beach lifestyle. This measure would support the protection of
California's beaches, access to those beaches, and important traditions that
are integral to the state's culture and beach lifestyle, such as fire rings.
WHEREAS, It is well known that visitors, tourists, and residents are
drawn to the California coast for personal and family recreation, surfing
and water sports, iconic piers, and unforgettable sunsets; and
WHEREAS, An important beach attraction is the time- honored tradition
of a beach bonfire in a fire ring that California residents and visitors enjoy
as the sun goes down over a perfect California beach evening; and
WHEREAS, Beach bonfires are a safe and inexpensive recreational
activity and are enjoyed by all the members of our community, regardless
of socioeconomic class; and
WHEREAS, Beach attractions result in optimum economic and
community activity, from gatherings of family and friends, beach barbecues,
community events, and beach sports, and much more; and
WHEREAS, Fire rings are usually large cement rings in the sand to build
your very own bonfire, though in places such as Oceano Dunes Vehicle
Recreation Area and its beach where cars can drive right on the beach in
Grover Beach, you can pull your car onto the sand and simply set the wood
out on the beach and light it, or dig your own fire ring; and
WHEREAS, Many state beaches offer fire rings to campsite guests as
part of their camping fee, while some provide them for free; and
WHEREAS, Of 108 state parks, 29 allow fire rings for beach vacationers
and visitors (excluding camping); and
WHEREAS, In Orange County, there are more than 600 fire rings
available on the city and state beaches for nightly bonfires, a favorite activity
among locals, visitors, and international tourists; and
WHEREAS, The Los Angeles County Department of Beaches and
Harbors maintains fire rings at Dockweiler Beach in Playa del Rey; and
WHEREAS, The California Coastal Commission Staff Report of October
22, 2012, at page 10 stated, "Beach fire rings are a unique recreational
facility for which there is no substitution."; now, therefore, be it
W.
Res. Ch. 52 —2—
Resolved by the Assembly of the State of California, the Senate thereof
concurring, That the Legislature supports the protection of California's
beaches, access to those beaches, and important traditions that are integral
to our culture and beach lifestyle, such as fire rings; and be it further
Resolved, That the Chief Clerk of the Assembly transmit copies of this
resolution to the author for appropriate distribution.
0
96
STATE OF CALEFORN1A - NATURAL RESOURCES AGENCY EDMUND G. BROWN. JR.. GovEftNog
CALIFORNIA COASTAL COMMISSION
South Coast Area Office
200 Oceangate, Suite 1000
Long Beach, CA 90802-4302
(562) 590 -5071
July 10, 2013
Dr. Barry R. Wallerstein
Executive Officer
South Coast Air Quality Management District
21865 Copley Drive
Diamond Bar, CA 91765
Dear Dr. Wallerstein:
�y �V
The staff of the California Coastal Commission is taking this opportunity to comment on the South Coast Air
Quality Management District's (AQMD) staff report and attachments posted July 3, 2013 which proposes
changes to Rule 444 scheduled for possible action by the AQMD Board on July 12, 2013. We are concerned
about certain aspects of the proposed restrictions on public use of wood - burning fire rings on Los Angeles
and Orange County beaches and offer the following comments for your consideration.
As you know, Commission staff prepared staff reports for Coastal Commission meetings in March and again
in July (see links in footnote!) of this year, addressing the City of Newport Beach's request to remove all 60
fire rings from the City's beaches in response to the concern of some residents about potential health risks
associated with wood smoke. Those staff reports do not support removal of the Newport Beach fire rings.
As an alternative, we would like to work with the AQMD to achieve the state and/or federally- mandated air
quality goals for the District while ensuring that its rules and regulations do not conflict with Coastal Act
requirements. Acknowledgement of the statutory provisions that apply to this effort are helpful.
Section 30414 of the Coastal Act acknowledges that the establishment and regulation of air quality and
emission standards and air pollution control programs rests with the State Air Resources Board and the air
pollution control districts and states:
(a) The State Air Resources Board and air pollution control districts established pursuant to state law
and consistent with requirements of federal law are the principal public agencies responsible for the
establishment of ambient air quality and emission standards and air pollution control programs. The
provisions of this division do not authorize the commission or any local government to establish any
ambient air quality standard or emission standard, air pollution control program or facility, or to
modify any ambient air quality standard, emission standard, or air pollution control program or
facility which has been established by the state board or by an air pollution control district.
(b) Any provision of any certified local coastal program which establishes or modifies any ambient air
quality standard, any emission standard, any air pollution control program or facility shall be
inoperative.
(c) The State Air Resources Board and any air pollution control district may recommend ways in which
actions of the commission or any local government can complement or assist in the implementation
of established air quality programs.
Section 30253 (c) of the Coastal Act says in part that new development shall: `Be consistent with
requirements imposed by an air pollution control district or the State Air Resources Board as to each
particular development."
March 2013 hearing staff report: http7/ldocuments.coastal.ca.gov/i,cl)orts/2013/3/Wl8b-3-2013,pd
July 2013 hearing staff report: htto: / /documents.coastal,ca.gov /reports /2013 /7/FhI2a- 7.2013.odf
Coastal Commission Staff Comments to AQMD
Page 2 of 5
Section 30001.5 of the California Coastal Act declares that the basic goals of the state for the coastal zone
include maximizing public access to and along the coast and maximizing public recreational opportunities in
the coastal zone consistent with sound resources conservation principles and constitutionally protected rights
of private property owners.
Section 30210 of the Coastal Act requires that maximum recreational opportunities shall be provided for all
the people consistent with public safety needs and the need to protect public rights, rights of private property
owners, and natural resource areas from overuse. Section 30213 of the Coastal Act requires that: "Lower
cost visitor and recreational facilities shall be protected, encouraged, and where feasible, provided.
Developments providing public recreational opportunities are preferred."
In addition, Section 30003 of the Coastal Act states that all public agencies shall comply with the provisions
of the California Coastal Act.
The Commission is obligated to consider public health and safety matters when implementing the public
access policies of the Coastal Act. But if the Coastal Commission approves development that will limit '
public access or recreational opportunities along the coast, it must have substantial evidence that there are
public safety needs that warrant such a limitation and substantial evidence that there are no feasible
alternatives that will have a lesser impact on public access and recreation. Commission staff is concerned that
some of the proposed regulations on wood burning in fire rings on coastal beaches would prejudice both
local agency and the AQMD's responsibility to comply with the California Coastal Act.
With this in mind, Commission staff is requesting further clarification of certain public safety/health data and
conclusions in the AQMD's findings for the proposed Rule 444. Based on air quality monitoring data
collected over a few months, the AQMD staff is recommending the establishment of a 700 -foot buffer zone
between wood- burning beach fire rings and residences. This recommendation, presented on Pages 1 and 2 of
the Final Draft Addendum to your staff report, has the highest potential for conflict with Coastal Act goals
and policies.
The recommendation for a 700 -foot buffer zone is apparently based on a generic screening model chart,
which suggests that exposure to wood smoke emissions decreases as distance from the source increases. The
chart indicates that a 90% reduction in exposure occurs at slightly less than 400 feet from the source. A 98%
reduction in exposure occurs at 700 feet. The difference between these two levels is critical because the 700 -
foot restriction would require relocation, and in some cases elimination, of most wood burning in fire rings at
Corona del Mar State Beach and the Balboa Pier area of Newport Beach as well as wood burning in an
estimated 30 fire rings at Huntington State Beach and an undetermined number of fire rings at Doheny State
Beach. This will result in significant adverse impacts to these lower cost recreational facilities.
The specific source of the screening model chart and its intended purpose have not been identified.
Therefore, we are unable to determine the justification for requiring a 98% reduction and 700 -foot buffer
zone, versus a 90% reduction and less than a 400 -foot buffer zone. Is there a quantifiable benefit related to a'
specific public health risk or other safety basis requiring the 98% reduction in exposure as opposed to 90 %,
or some other reduction? Is the proposed 98% reduction similar to other control measures that the district
has adopted for a direct source of PM2.5? If so, we would recommend identifying comparable regulations to
provide added context for this proposed regulation.
Similarly, the AQMD staff report hasn't offered a rationale for establishing a 100 foot separation between
fire rings when they are located within 700 feet of residences or a 50 foot separation on beaches with 15 or
fewer fire rings. Please explain how you determined that a 100 foot or 50 foot separation between fire rings
was necessary? What data were these proposed separations based on, and what health standard will be
achieved? Again, these proposed controls will ultimately play an important role in the quantity and location
of wood - burning beach fire rings that will be available to the public for lower cost recreation. There also is
Coastal Commission Staff Comments to AQMD
Page 3 of 5
no stated justification for regulating the bum ing of wood in beach fire rings and not regulating the burning of
wood in fire rings at other locations, such as on private property. Do beach fire rings pose a specific health
hazard not posed by other sources of wood burning? How would the reduction of other wood burning affect
the apparent problem with wood fires on the beach?
The staff report also states that PM2.5 concentrations were found to be up to ten times background levels for
short periods of time in beach parking areas and up to three times background levels at nearby residential
locations. However, the background levels in these areas haven't been identified. The background levels,
including the data and collection methods, should be provided so that they can be compared to applicable air
quality standards.
Wood smoke from beach fire rings does not appear in the AQMD's emissions inventory and was not
identified in the 2012 Air Quality Management Plan as a major source of PM2.5 requiring regulation. Is
there new information concerning the health risks of beach fire rings, beyond that presented in the staff
report, that underlies the proposed rule change? In addition, we note that beach fire rings are used most
heavily during the peak summer tourist season (June, July, August and early September) not during the late
fall and winter months (November through February) when PM2.5 levels are highest due to emissions from
wood- burning fireplaces and wood stoves. Does the seasonality of beach burning and peak PM2.5 levels
affect the analysis of the public health impacts of beach fires?
Both agencies have jurisdiction to regulate the maintenance and use of beach fire rings. Neither agency's
jurisdiction entirely supplants the other's and, pursuant to the above - stated policies, both agencies should
exercise their authority in conformity with the other's governing statutes. The AQMD, however, does have
the authority to regulate stationary sources of air pollution such as fire rings. Pursuant to Section 30253(c)
new development must comply with AQMD requirements and pursuant to Section 30414(a) the Commission
may not modify air pollution control programs. Thus, the Commission does not have regulatory authority
over AQMD's air pollution control program and may not disregard its requirements when reviewing
proposed new development.
That said, the AQMD is also required to carry out its responsibilities in conformity with the Coastal Act (see
Public Resources Code sections 30003, 30402). If the AQMD establishes restrictions on beach fire rings
without a sufficient factual basis for why those restrictions on coastal recreation are necessary, those
restrictions could be challenged in court. Commission staff urges the AQMD to implement mitigation
measures that will help address any adverse effects of wood smoke on human health while also recognizing
and protecting the beach fire rings as important lower cost visitor and recreational facilities.
The AQMD staff report also appears to incorrectly indicate that the proposed rule strengthens local
government authority to declare a nuisance under existing laws. Section (d)(4) of the proposed Rule 444
provides that if a city or county has declared that "designated beach burning devices within its boundaries
cause a nuisance, as defined in Civil Code section 3479 or Health and Safety Code section 41700(a), due to
wood smoke exposure, then those devices may not be made available by a state or local authority." No
public agency, including the Coastal Commission and AQMD, however, has the authority to change the
scope of existing statutory authority, or to override judicial rulings regarding the scope of local governments'
nuisance abatement authority. (Health & Safety Code section 40727(b)(4).) Thus, considering recent
judicial rulings on this issue, local governments may not declare a nuisance as a pretext for avoiding Local
Coastal Program requirements and must obtain a Coastal Development Permit for development that exceeds
what is necessary in order to abate a properly declared nuisance. See City of Dana Point v. Cal Coastal
Commission (2013); Citizens for a Better Eureka v. Cal Coastal Commission (2011) 196 Cal.App.4" 1577.
Further, we believe the proposed findings related to requiring removal/moving of fire rings if a local
government declares a nuisance under the rule appears to conflict with the Coastal Commission's statutory
authority to regulate development. The Legislature established the purpose of regional air pollution control
districts, like AQMD, under Health and Safety Code section 40000 which provides that the "regional
Coastal Commission Staff Comments to AQMD
Page 4 of 5
authorities have the primary responsibility for control of air pollution from all sources, other than emissions
from motor vehicles." The regional districts may adopt rules and regulations that "provide for the prevention
and abatement of air pollution episodes which, at intervals, cause discomfort or health risks to or damage to
the property of, a significant number of persons or class of persons." (Health and Safety Code, section
40001(b).) Nothing in the legislative grant of authority to regional air pollution control districts provides that
the districts have the authority to require physical removal of stationary sources of pollution. Thus, the
Coastal Commission staff interprets the proposed Rule 444 as one that would only restrict wood - burning
emissions in the beach burning context, but would not apply to the beach burning emissions from charcoal or
liquid or gaseous fuels. The proposed rule then, if adopted, cannot authorize the removal of any fire rings.
Rather, any development as defined in section 30106 of the Coastal Act, including the physical removal or
demolition, of a stationary source, like a fire ring or a manufacturing facility, within the coastal zone would
be subject to the regulatory authority of the Coastal Commission and/or local governments with certified
Local Coastal Programs. (Public Resources Code, sections 30106, 30600, 30600.5, 30604) Therefore, the
specific findings related to removal of fire rings appear to be in conflict with existing state law and thus, the
specific findings supporting the proposed Rule 444 are not consistent with sections 30003 and 30402 of the
Coastal Act and do not seem consistent with Health and Safety Code sections 40727(b)(4) and 40440,
requiring adoption of air quality control district rules to be consistent with existing state laws.
Additionally, without further explanation of the public health and safety basis for the proposed restriction, it
would appear that the proposed rule unnecessarily conflicts with the Coastal Commission's statutory
authority to provide maximum public recreational opportunities for the public. As noted earlier, section
30001.5 of the California Coastal Act requires the California Coastal Commission to maximize public access
to and along the coast and maximize public recreational opportunities in the coastal zone. In the case of
Newport Beach, beach fire rings have been one of the most popular activities enjoyed by generations of
beach -goers since the late 1940s and early 1950s. Newport Beach's 60 beach fire rings continue to be in
heavy demand. The fire rings are a lower cost recreational facility that cannot be duplicated. As further
indicated in petitions opposing removal of fire rings in Newport Beach and opposing the proposed Rule 444,
one of which is signed by over 7,000 people and the other signed by over 14,000 people, the fire rings
represent a significant coastal recreational resource? The proposed rule would effectively prohibit wood
burning in fire rings that are located in many coastal jurisdictions and, therefore, appears to be also
inconsistent with the Coastal Act's public access and recreation policies.
As noted AQMD is currently considering a number of options to address the potential public health risk of
burning wood in fires on the region's beaches. What has also been noted through the public's response to the
potential restriction on use of wood in beach fire rings, is the significance of the recreational resource that is
provided through the public's use of such beach fire rings. Only two options under consideration, those that
would address the buffer or distance of the rings from residences and the distance between each fire ring,
have the potential to affect the number of fire rings that could remain available on the beaches for public use.
All the other options such as limiting use on no -bttm days, requiring compliance regarding materials burned,
public education and pilot programs to pursue alternative fuels would not have a significant adverse effect on
public recreational use, but could result in a reduction in particulate emission associated with beach burning
and therefore be a benefit to air quality.
Pursuant to the public access and recreation policies of the Coastal Act, the Commission is interested in
maximizing the number of fire rings that are retained for public use; however, the Commission also
recognizes the potential health risks associated with wood smoke and AQMD's desire to address those
adverse effects. Therefore, consideration of a] I potential options that meet the requirements of both agencies'
should be the primary goal, consistent with the Coastal Act and laws that protect air quality.
z htto: / /www.change.ore i)etitions/califomia- coastal- commission- newi)ort- beach -city- council - members - stop -the- removal- of- 60 -fire-
rin s -at -big- corona - state- beach - and - balboa; http: / /www.change.orpjpetitions /south- coast- air - quality - management- district- goveming-
board- keen - the -fi re -ri ngs -o n -o ur- beaches
Coastal Commission Staff Comments to AQMD
Page 5 of 5
At this time, the AQMD Board has not acted to approve, amend or reject its staff s recommendation
regarding the use of fire rings in southern California. From the data available to the Commission, as
indicated above, the support and basis for the AQMD staff recommendation is not entirely clear. The
Commission has not seen an assessment of the actual health risk that would exist if a lesser buffer from
residences or smaller distance between rings were required along with all the other alternative measures
designed to address potential hazards from beach burning. Given the significance of the recreational impact,
the Commission finds those lesser distances should be analyzed to allow retention of the maximum number
of fire rings possible in any given beach location.
Towards this end, the Coastal Commission staff requests that the AQMD review its data and amend the
proposed rule in consultation with the Coastal Commission staff so that the proposed rule both achieves its
state and /or federally- mandated air quality goals related to PM 2.5 levels while at the same time being in
harmony with the Coastal Act.
Thank you for the opportunity to comment on this matter. Please note that these comments are those of the
Coastal Commission staff and not of the Commission itself. Finally, please be sure this letter is forwarded
for consideration by the members of the AQMD Board in advance of their meeting this Friday, July 12.
Sincerely,
Sherilyn Sarb
-?-
Deputy Director
I-;;ECE6VE ASS AGENDA
-----
PRIPb,Ev.
A1-7gI13
South Coast Ann° Quality Management nage>r> ent District
21865 Copley Dr, Diamond Bar, CA 91765 -4178
No (909) 396 -2000 www.aqmd.gov
November 26, 2013
David Kiff, City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Dear Dave:
The staff of the South Coast Air Quality Management District (SCAQMD) submits these
comments on Agenda Item No. 33 for the November 26, 2013 meeting of the Newport Beach
City Council. The information discussed herein was discussed on several occasions in detail with
City staff.
The Staff Report for Agenda Item No. 33 recommends that the City Council direct staff to space
existing wood - fueled rings at a minimum of 50 feet from each other while retaining the same
overall footprint within which the sixty (60) rings are located today. If the recommendation in
the City Council Staff Report is followed, Newport Beach will violate SCAQMD Rule 444.
SCAQMD Rule 444 — Open Burning, adopted by the its Governing Board on July 12, 2013,
prohibits a person from open burning in beach burning devices effective March 1, 2014 unless
the beach burning occurs in devices that are "(I) at least 700 feet from the nearest residence; or
(II) at least 100 feet apart from one another; or (III) at least 50 feet apart from one another, if
there are no more than 15 devices per contiguous beach area within the city's boundaries." Rule
444(d)(3)(G). Newport Beach staff has interpreted the term "contiguous beach area" to mean
that the Newport Harbor Jetty interrupts the contiguity of the fire rings at Balboa Pier and Big
Corona, and thus each beach may have up to 15 fire rings that are 50 feet apart from one another.
City staff makes this recommendation despite its acknowledgement that SCAQMD staff
explained that the "contiguous beach area" term was intended to apply to a large city split by
other cities or unincorporated areas, not cities like Newport Beach. City Council Staff Report,
p. 5.
From the outset, the clearly expressed intent of Rule 444 has been that a city could space its fire
rings 50 feet apart only if the city had no more than 15 devices, unless the city had beach areas
that were separated from one another by another city's or unincorporated area's beaches. A
version of proposed amended Rule 444 that was released to the public on June 6, 2013, stated,
with respect to the 50 foot provision, that the rings had to be "at least 50 feet apart from one
another, if there are no more than 15 devices within a city's boundaries." At a June 2013 Public
Consultation meeting, staff presented a slide that reiterated this, stating that within 700 feet of a
residence, the fire rings must be 100 feet apart or "50 feet apart if 15 or less pits in a city." At
that point, the proposed amended rule only allowed fire rings to be spaced 50 feet apart if there
were 15 or fewer fire rings within a city's boundaries.
The term "contiguous beach area" was later added to the proposed rule language. The intent of
adding the additional language to the rule was to allow a city, with beaches that are separated
Honorable Mayor and Members of the City Council
City of Newport Beach
November 26, 2013
Page 2
from one another by another city's or unincorporated area's beaches, to space its fire rings 50
feet apart if it had no more than 15 rings in that contiguous area of the city. As stated in the
board packet: "The contiguous beach area condition is intended to consider beaches separately,
in terns of rule applicability, if a city has beaches that are separated by another city's or
unincorporated area's beaches (an example is Dockweiler State Beach which has 73 fire rings
and Cabrillo Beach has 6 fire rings, both of which are in the City of Los Angeles but are
separated along the coast by several other cities' beaches.)" Staff Report Addendum, p. 5. The
analysis continues, stating, "Although Cabrillo Beach and Dockweiler State Beach are both in
the City of Los Angeles, the beaches are not contiguous and are separated by other cities.
Therefore, Cabrillo Beach will only be subject to the 50 foot spacing requirement since it
contains less than 15 fire rings." Staff Report Addendum, p. 6. The clearly expressed intent of
the "contiguous beach area" provision is that a city's beach is contiguous except when its coastal
beaches are separated by another jurisdiction. Therefore, separation by other features, such as a
jetty, was not intended to be interpreted as a division of a "contiguous beach area" if those
features are within the city's boundaries.
Newport Beach can retain more of its current fire rings by spacing them beyond the current
footprint so they are at least 100 feet apart from one another. Nothing in Rule 444 requires a city
to retain the overall footprint on which the existing fire rings are located. In fact, as noted
throughout the board package, a city is free to space its rings further out to comply with the
Rule's applicable spacing requirements. See Board Letter, p.7, Staff Report Addendum, p. 6.
Moreover, as noted in the Coastal Commission Staff Report, "Newport Beach has miles of
beachfront, but the 60 fire rings are concentrated in three locations. Other sections of the beach
are wider and farther from the nearest homes." Coastal Commission Staff Report (Application 5-
12 -134), p. 12. Thus, if the City would like to retain 27 wood - fueled rings, as City Staff
recommends, there is nothing in Rule 444 that prevents it from doing so, as long as the rings are
at least 100 feet apart from one another.
If Newport Beach follows the recommendation of its staff and retains more than 15 wood - fueled
rings within its city's boundaries and spaces them fewer than 100 feet apart, the City will be in
violation of Rule 444.
Sincerely,
=4 = -
Barry R. Wallerstein, D.Env.
Executive Officer
cc: Mayor and City Council Members