HomeMy WebLinkAbout13 - Gas-Powered Leaf Blowers*'City CITY OF
NEWPORT BEACH
Council Staff Report Agenda Item No. is
March 22, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, City Manager
949 -644 -3002, dkiff @newportbeachca.gov
PREPARED BY: Rob Houston, Assistant to the City Manager
APPROVED:
TITLE: Ordinance 2011- 12 : Amendment to the Newport Beach
Municipal Code, Title 6; Gas - Powered Leaf Blowers
ABSTRACT:
An amendment. to the Newport Beach Municipal Code that would ban the use of gas
powered leaf blowers in residential neighborhoods.
RECOMMENDATION:
Introduce the following ordinance and pass to second reading on April 12, 2011:
Ordinance No. 2011 -12 An ordinance of the City Council of the City of Newport Beach
amending the Newport Beach Municipal Code Title 6, Chapter 6.04 (Garbage, Refuse
and Cuttings), by revising Section 6.04.055.
FUNDING REQUIREMENTS:
The fiscal impact associated with City maintenance operations is insignificant. If City
staff enforces the ban, some expense is anticipated, and this expense is not budgeted
at this point in time.
During the City Council Study Session on November 9, 2010, Council heard the findings
of three surveys targeting the following groups regarding ther continued use of gas
powered leaf blowers within the residential areas of Newport Beach:
• Home owner and community associations .
• Landscape maintenance companies
Individual residents
Ordinance 2011 - Amendment to the Newport Beach Municipal Code, Title 6; Gas -
Powered Leaf Blowers
March 22, 2011
Page 2
A summary of the results of the main question asked on each survey, "Should there be
a ban on gasoline powered leaf blowers in residential neighborhoods ?" is shown in the
following table:
Subsequent to the report and testimony from members of the community, Council
discussed a variety of options available to address the concerns regarding the use of
leaf blowers in the community. Discussion covered options that included banning leaf
blowers of all types, banning only gasoline powered blowers, prohibiting leaf blower use
in all parts of the City, allowing HOA communities to "opt out" of the citywide ban, and /or
exempting commercial and civic properties from the ban. Staff took the direction they
heard from Council and developed an ordinance that includes the following:
• A citywide ban on gas - powered leaf blowers in residential areas.
• An option for homeowner associations to opt -out of the citywide ban.
• The ordinance would not apply to electric leaf blowers or vacuums.
• Commercial areas, City parks, and medians would be excluded from the ban.
• There would be a phase -in period of six (6) months before the ban takes effect.
The proposed ordinance incorporates all of the Council's recommendations with the
exception of a date specific phase -in period.
Staff believes that:
• Prohibiting gas powered leaf blowers would address concerns raised about
pollution from exhaust.
• A gas - blower ban would lower total noise levels, because generally electric
blowers are quieter than gas powered blowers.
• A total ban on all types of leaf blowers would result in all residential yards
requiring hand sweeping and other forms of manual clean up, which would be
very labor intensive and burdensome for some residents who maintain their own
property.
• A six month phase -in period will enable adequate public and media outreach,
written notification to the landscape maintenance companies, written notification
1
Ordinance 2011 - Amendment to the Newport Beach Municipal Code, Title 6; Gas -
Powered Leaf Blowers
March 22, 2011
Page 3
to the home owner associations and verbal warnings to those in violation of the
ordinance during the initial six month period.
City staff communicated with residents and landscape maintenance companies about
the proposed ordinance. Letters outlining the proposed changes were sent to 115 local
landscape companies and 154 HOA groups in the City. A notice was also posted on
the City's website, Facebook page, and emailed to the citizen email distribution list.
ECONOMIC IMPACT:
There is a potential incremental increase in landscape maintenance fees to private
property owners whose landscape maintenance companies need to purchase electric
leaf blowers. There is also a one -time cost to homeowners that do their own landscape
maintenance if they choose to purchase an electric leaf blower.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California
Environmental Quality Act ( "CEQA ") pursuant to Section 15301 - existing facilities of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has
no potential to have a significant effect on the environment.
NOTICING:.
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Dave Riff
City Manager
Attachments: A. Ordinance 2011
3
Ordinance 2011 - Amendment to the Newport Beach Municipal Code, Title 6; Gas -
Powered Leaf Blowers
March 22, 2011
Page 4
ORDINANCE NO. 2011-
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF NEWPORT BEACH
PERTAINING TO GAS - POWERED LEAF BLOWERS
IN RESIDENTIAL DISTRICTS
WHEREAS, residents, business owners and landscape maintenance operators
in the City of Newport Beach have participated in surveys about the effects of gas
powered leaf blowers and other mechanical landscape maintenance devices in districts
zoned for residential use; and
WHEREAS, the results of the surveys indicated that gas powered leaf blowers
are more disruptive or intrusive in some residential districts than other types of
mechanical landscape maintenance devices, and that many residents want a prohibition
on leaf blower use in residential neighborhoods but do not want a prohibition on electric
leaf blowers or leaf vacuums; and
WHEREAS, the City Council finds that frequent use of gas powered leaf blowers
in residential districts creates pollution and annoyance for persons of normal sensitivity;
and
WHEREAS, the City Council finds that common interest developments of five or
more dwelling units, that have an association responsible for establishing regulations
controlling the management and maintenance of exterior common areas, have adopted,
or have the ability to adopt self- imposed regulations that establish a regulatory
framework addressing the exterior residential environment, and such regulatory
frameworks can be used by common interest developments of five or more dwelling
units to more closely address neighborhood impacts of leaf blowers within such
developments; and
WHEREAS, the City Council wishes to prohibit the use of gas powered leaf
blowers in all residential districts except by certain public employees or contractors
acting in the scope of their employment, and in residential common interest
developments of five or more dwelling units that have an association responsible for
establishing rules and regulations for the management and maintenance of exterior
common areas.
1-(
Ordinance 2011 -_ Amendment to the Newport Beach Municipal Code, Title 6; Gas-
Powered Leaf Blowers
March 22, 2011
Page 5
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
SECTION 1: Section 6.04.055 of the Newport Beach Municipal Code is hereby
revised and amended as follows:
6.04.055 Leaf Blowers.
A. Definitions.
1. "Leaf blowers" shall mean any gas powered, air blowing machine that uses a
concentrated stream of air to push, propel or blow dirt, dust, leaves, grass clippings,
trimmings, cuttings, refuse or debris. "Leaf blowers" shall not include any electric leaf
blower or electric leaf or refuse vacuum.
2. "Common interest development" and "association" shall be defined as those
terms are defined in California Civil Code section 1351.
B. Use of Leaf Blowers.
1. Leaf blowers may be used and operated within non - residential districts of
the City, as set forth in Title 20 of this Code, to sweep or clean any surface of
dirt, dust, leaves, grass clippings, trimmings, cuttings, refuse or debris only if the
cuttings, refuse or debris so swept or blown are not left in or upon any adjacent
or other parcel, any street, public place or right -of -way, public beach, or on the
shore, or in the waters of Newport Bay.
2. The hours of operation and maximum noise levels shall be subject to the
provisions of Chapter 10.28.
3. Use of Gas - Powered Leaf Blowers in Residential Districts Prohibited. Gas
powered leaf blowers shall not be used in any district identified in Title 20 of this
Code as a district zoned for residential use, with the exception of use addressed
in a. through c. below
a. Residential common interest developments of five or more dwelling units
with an association responsible for establishing regulations controlling the
management and maintenance of exterior common areas may, by the
Ordinance 2011 -_ Amendment to the Newport Beach Municipal Code, Title 6; Gas -
Powered Leaf Blowers
March 22, 2011
Page 6
method set out in their association's rules and regulations, choose to be
exempt from the restrictions contained in this section.
b. The maintenance, repair or improvement of any public work or facility by
public employees, by any person or persons acting pursuant to a public
works contract, or by any person or persons performing such work or
pursuant to the direction of, or on behalf of, any public agency.
c. Greens maintenance on golf courses conducted between the hours of
six a.m. and eight p.m.
C. Violations. Any person who uses a gas powered leaf blower and /or causes or
permits cuttings, refuse or debris swept or blown by the leaf blower to be left in places
contrary to the provisions of subsection (C) of this section is guilty of an infraction. (Ord.
95 -38 § 2, 1995: Ord. 87 -15 § 1, 1987; Ord. 83 -23 § 1, 1983; Ord. 1828 § 1, 1979)
SECTION 2: If any section, subsection, sentence, clause or phrase of this ordinance is,
for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this ordinance. The City Council
hereby declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this
ordinance. The City Clerk shall cause the same to be published once in the official
newspaper of the City, and it shall be effective thirty (30) days after its adoption.
This ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach, held on the 22nd day of March, 2011, and adopted on the 12th day of April,
2011, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
6
Ordinance 2011 - Amendment to the Newport Beach Municipal Code, Title 6; Gas -
Powered Leaf Blowers
March 22, 2011
Page 7
MAYOR
Michael Henn
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
�- CE OF THE CITY ATTORNEY
David R. Hunt, City Attorney
"RECEIVED FTER AGENDA
ia;vr " 3
NOW ... RECEIVED
1824 West Ocean Front 7011 MAR 18 AM II* y5
Newport Beach, California 92663
OFFICE OF
THE CITY CLERK
March 18, 2011 CITY OF "97 +'CRT BEACH
Newport Beach City Council
Re: Agenda Item #13
Gentlemen:
The city's leaf blower survey responses convey the concerns of those residents who are
disturbed that their tranquility is being impaired by the neighbor's inept "professional"
gardeners. At our home we have certainly had inept laborers wielding leaf blowers
damaging plants and creating whirling dirt in a circle going nowhere. But properly used,
leaf blowers can be an essential gardening tool. Currently they replace the water that
has been the method of successfully cleaning patios. They do make more noise than
water but the power mower is noisier than the reel mower too. Does this mean that we
should revert to pushing the old style mowers so our neighbor can hear the birds tweet?
Our city is a grouping of distinct "villages ". This is one of the positive attributes of
Newport Beach. There are those neighborhoods where residents relax in the patio and
listen to the birds tweet, there are neighborhoods fortunately protected by community
associations and guards where the residents' major concern is being hit by an errant
golf ball, and then there are locations where we listen to the pounding surf along with
sounds we might prefer not to hear, but we don't ask you to ban surfboards, fishing
poles, or noisy kites.
Our neighborhood has challenges too. Sand blown in by storms or dropped from
visitors' beach equipment is not so easily removed without water. City crews assist on
the highly utilized Ocean Front walk and use street sweepers, leaf blowers, and brooms.
It seems unreasonable that resident gardeners, not protected by a community
association, can not utilize equipment deemed appropriate for parks, community
associations, and city employees.
It is my request that you exempt resident gardeners from this ban. A homeowner/
gardener is not likely to impair his property by improperly using such a tool.
Respectfully,
Carol Martin
Brown, Leilani
From:
Ron Richmond laeroron @cox.net]
Sent:
Tuesday, March 22, 2011 8:59 AM
To:
Dept - City Council; Info @Comra.org; Brown, Leilani
Subject:
Gas - Powered Leaf Blower Ban
3 -22 -11
City Council Members;
My wife and I have been owners and residents in Corona del Mar for 40 years. We like our yard to be free of dirt, debris and
leaves as much as possible and use of gasoline powered blowers is essential to yard cleanliness. Electric blowers are a real
hassle and rakes and brooms take too long to accomplish the cleaning task. The gasoline powered blower noise is brief and
not objectionable.
R. L. Richmond
1307 Seacrest Dr.
Corona del Mar. CA 92625
Brown, Leilani
From: tony succardi [tsuccardi @yahoo.com]
Sent: Tuesday, March 22, 2011 9:11 AM
To: Dept - City Council; Info @Comra.org; Brown, Leilani
Subject: Gas - Powered Leaf Blower Ban
Leaf blowers accomplish three things.
They move debris from one area to another.
They make the area smell terrible from dust and gas.
They make noise.
Most properties in CDM are so small it simply moves the debris from one property to another.They should not be
used here.
Tony Succardi CDM resident.
Brown, Leilani
From:
Robert Zoller [cdmzoller @yahoo.comj
Sent:
Tuesday, March 22, 2011 9:30 AM
To:
Dept - City Council; Info @Comra.org; Brown, Leilani
Cc:
cdmjaneta @gmail.com
Subject:
Gas - Powered Leaf Blower Ban
My wife and 1 are residents of CDMfor the past nine years, residing at 610 112 Marigold Avenue, and are in fudl
support of banning both the gas powered and the electric powered leaf blowers within the City of Newport Beach.
Too often they start before 7 :00 A-M and often are heard well after 6:00 PM during day light savings time.
Especially in CDM, the grounds for most lots are small and can be cleaned manually.
My wife and I appreciate your consideration.
Bob and Janeta Zoller
6101/2 Marigold Avenue
CDM, CA. 92635
Brown, Leilani
From: GOLFCARRS @aol.com
Sent: Tuesday, March 22, 2011 10:00 AM
To: Dept - City Council; Info @Comra.org; Brown, Leilani
Subject: Gas - Powered Leaf Blower Ban
Dear City Council Members: Please vote YES to ban all gas and electric powered leaf blowers! They
are nothing but bothersome and blow dirt and dust everywhere! We have a gardener on our street who
works at several houses and blows his leaf- blower from 10 am until 5 pm on Saturdays! It's horrible
noise all day long!
Ken Carr
Corona del Mar, CA
Brown, Leilani
From:
Kenneth Tye [kentye007 @gmail.com]
Sent:
Monday, March 21, 2011 10:47 PM
To:
Dept - City Council; Info @Comra.org; Brown, Leilani
Subject:
Gas - Powered Leaf Blower Ban
Hi Ladies and Gentlemen
In my opinion, it is unnecessry to ban the usage of gas -power leaf blower.
Kenneth Tye
Brown, Leilani
From: Sandie Haskell [sandiehaskell @roadrunner.com]
Sent: Tuesday, March 22, 2011 8:33 AM
To: Dept - City Council; Info @Comra.org; Brown, Leilani
Subject: Gas - Powered Leaf Blower Ban
I think this is kind of silly. The same gardener that brings the leaf blower brings a gas powered (loud, noisy, polluting)
mower, edger, and weed - whacker. In fact, I have seen the gardener use a weed - whacker as a leaf blower - holding it a few
inches off the ground and "blowing" the debris from edging off the driveway. The gardening experience will always be a
noisy one. It would make more sense to lobby the makers of power gardening tools to come up with a muffling system for
their products or other device to abate the noise and pollution. The mowers, trimmers, etc. create just as much pollution
and noise as the blowers; you burn fuel, you create pollution.
Second hand smoke is probably a bigger polluter and health threat— ban that in all public areas!
Sandie
Brown, Leilani
From:
Patricia Dreyfus [padreyfus @gmaii.com]
Sent:
Monday, March 21, 2011 9:43 PM
To:
Dept - City Council; Info @cdmra.org; Brown, Leilani
Subject:
Gas - Powered Leaf Blower Ban
Please ban the leaf blowers. They are not good for our health. Dust and debris blow everywhere and the noise is
jarring. Thank you.
Patricia Dreyfus
Brown, Leilani
From:
Richard Mandel [mandels @cox.net]
Sent:
Monday, March 21, 2011 8:54 PM
To:
Dept - City Council; Info @Comra.org; Brown, Leilani
Subject:
Gas - Powered Leaf Blower Ban
I feel its ok to use gas powered leaf blowers after 8:00 am weekdays only. Thank you.
RAMandel, member CDMRA
Brown, Leilani
From: Dominic Boitano [domboitano @gmail.com]
Sent: Monday, March 21, 2011 8:22 PM
To: Dept - City Council; Info @Comra.org; Brown, Leilani
Subject: Gas - Powered Leaf Blower Ban
Esteemed Council Members,
Please do NOT ban leaf blowers in CdM. Used responsibly and at reasonable times during the day, they are an effective tool
that saves me a lot of time. If I had to sweep my entire property, it would take much longer to do. I can understand limiting
the times they can be used, but banning them seems a little ridiculous.
My fiance, another voter and resident in CdM also agrees. Her name is Courtney Daniels. Thanks.
Dominic Boitano
(cell) 831 -521 -6215
domboitano(o7email.com
407 %: Jasmine Ave
Corona Del Mar, CA 92625
Brown, Leilani
From:
lloufoutsl@aol.com
Sent:
Monday, March 21, 2011 7:34 PM
To:
Dept - City Council; Info @Comra.org; Brown, Leilani
Subject:
Gas - Powered Leaf Blower Ban
I live in CDM on Larkspur. The gas powered leaf blowers are a constant. Every day someone's yard is being first cut then
blown by a person who never has to bend over or sweep. It all goes in the street, or in my case in front of my house where I
have to sweep, not blow, up the remains of a neighbors yard. I hate them and find no reason they should be allowed to
continue. It is called yard WORK, not yard BLOW.
Brown, Leilani
From: Linda Reed [nims.reed800 @gmail.coml
Sent: Monday, March 21, 2011 6:36 PM
To: Dept - City Council; Info @Comra.org; Brown, Leilani
Subject: Gas - Powered Leaf Blower Ban
I am unable to attend but PLEASE ban these toxic and noise polluting leaf- blowersH M
Linda Reed
Brown, Leilani
From:
Doug Campbell [idoug99 @cox.net]
Sent:
Monday, March 21, 2011 6:05 PM
To:
Dept - City Council; Info @Comra.org; Brown, Leilani
Subject:
Gas - Powered Leaf Blower Ban
Our gardener uses one of the new, quiet, low emission leaf blowers and it is no problem at all. Let technology solve the
problem.
Ian Campbell
2901 Ebbtide Rd
Corona del Mar, CA 92625
Information from ESET NOD32 Antivirus, version of virus signature database 5972 (2011032 1)
The message was checked by ESET NOD32 Antivirus.
http: / /www.eset.com
Brown, Leilani
From: George Jeffries [gjj4 @cox.net]
Sent: Tuesday, March 22, 2011 1:07 PM
To: Dept - City Council; Info @Comra.org; Brown, Leilani
Subject: Gas - Powered Leaf Blower Ban
Dear Council Member,
At the very least, please put sound limitations on leaf blowers. My neighborhood (Harbor View Hills) has a
minority of very loud blowers which continue at various homes for extended periods of time. They are helpful in
reducing water usage but a nuisance in terms of noise. Some mitigation is required.
Thank you.
GEORGE JEFFRIES
r
OUTDOOR POWER EQUIPMENT
INSTITUTE
MEMORANDUM March 22, 2011
TO: NEWPORT BEACH CITY COUNCIL
FROM: JAMES MCNEW, SVP OF TECHNICAL SERVICES, OPEI
RE: GASOLINE POWERED BLOWER BAN
I am respectfully writing to you as Senior Vice - President of Technical
Services for the Outdoor Power Equipment Institute (OPEI), the international
trade association representing the manufacturers of lawn and garden
equipment, including the major manufacturers of leaf blowers. Because lawn
and garden products are portable, they are deemed off -road, "mobile sources"
under the federal Clean Air Act and are federally pre - empted from emissions
regulation under local ordinance. Due to this fact, we ask the City of Newport
Beach, in compliance with the federal Clean Air Act of 1990, to reject the
ordinance 2011 -12 to ban the use of gasoline powered blowers.
The administrative record documented in the City Council staff report
dated March 22, 2011, demonstrates that the ban on gasoline - powered
blowers is clearly an effort to regulate the emissions from these "mobile
sources ". Consequently, the City of Newport Beach will be in violation of the
federal pre - emption provisions established under the federal Clean Air Act (as
well as potentially other federal legal requirements which are described
below).
I. OVERVIEW
Obviously, national manufacturers of off -road equipment cannot build
and national dealers and retailers cannot stock and sell specialized, niche
341 South Patrick Street o Alexandria, VA 22314
PH: 703.549.7600 • Fax: 703.549.7604 o www.opei.org
products for each individual city or state. Consequently, Congress wanted to
ensure national manufacturers could build, and national retailers could sell,
uniform products that complied with one set of emission standards. As the
U.S. Supreme Court has recently reaffirmed, Congress established a "carefully
calibrated regulatory scheme" to protect the compelling federal interest in
interstate commerce from being damaged by a potential "patchwork quilt" of
different, conflicting, local emission regulations. Consequently, Congress
granted U.S. EPA with exclusive or pre - emptive jurisdiction over mobile
source emissions. As explained below, the Newport Beach ordinance violates
the spirit and intent of Congress's careful legislative structure as recently
interpreted and applied by federal courts in very similar circumstances.
II. ANALYSIS OF FEDERAL CLEAN AIR ACT
Section 209(e) of the federal Clean Air Act establishes broad federal pre-
emption over the regulation of emissions from off -road mobile sources by
stating -- "No State or any political subdivision shall adopt or enforce any
standard or other requirement relating to the control of emissions" from
non -road engines or vehicles. Under Section 209(e)(2), only the State of
California (and not individual localities) may request U.S. EPA to formally
waive a federal pre - emption and authorize California to "adopt and enforce
standards and other requirements relating to the control of emissions from
such [non -road] vehicles or engines." EPA has only waived its broad federal
pre - emption under Section 209(e) vis -a -vis two, specific small engine exhaust
regulations that were covered by two formal waiver requests from the
California Air Resources Board (CARB).t
Under California law, CARB is the exclusive "air pollution control agency
for all purposes set forth in federal law." (See Ca. Health & Safety Code Ann.
§ 39602.) Obviously, Newport Beach has never applied for - nor could it
legally apply for - a waiver under Section 209(e) for U.S. EPA to allow it to set
1 U.S. EPA `authorized" the California Air Resources Board (CARE) (and only CARB) to
"adopt and enforce" exhaust standards applicable to new gasoline- powered leaf blowers and
other types of lawn and garden products.
2
unique or separate "standards or other requirements relating to the control of
emissions from non -road engines or vehicles." Consequently, the proposed
Newport Beach ban on the use of gasoline blowers in residential areas would
violate Section 209(e), if that ordinance amounts to a "standard or other
requirement relating to the control of emissions."
III. FEDERAL PRECEDENT HOLDS THAT A LOCALITY CANNOT SET AN
EMISSION STANDARD IN THE FORM OF A TECHNOLOGY- FORCING
USE RESTRICTION
Settled federal case law holds that any technology- forcing restriction
imposed on either the purchaser or the "user" of the equipment is a
preempted "standard" under Section 209(e) in the same manner as an
emissions -based prohibition imposed directly on the manufacture of a vehicle
or equipment. In banning the use of leaf blowers, Newport Beach will impose
precisely the same type of use prohibition as found in this line of cases. As a
result, the gasoline powered leaf blower ban will not withstand a preemption
challenge.
Over the past several years, the U.S. Supreme Court has held a similar,
local, California ban on the purchase and use (but not the manufacture) of
diesel - powered trucks to constitute an "emissions standard" subject to Section
209's pre - emption. (See Engine Manufacturers Association vs. South Coast Air
Quality Management District, 541 U.S. 246 (2004). Just like Solana Beach, the
California South Coast Air Quality Management District (SCAQMD) attempted
to force commercial operators to purchase or lease "alternative -fuel vehicles"
and prohibited the purchase or lease of conventional engines - including
those that had been certified as emissions- compliant by CARB. The SCAQMD
argued that it was not subject to Section 209 because it was not imposing an
emission "standard" or "production- mandate" on manufacturers, but instead
was only imposing a purchase or use prohibition on the downstream
commercial operator. Id. The Supreme Court directly rejected that argument.
Based on a careful review of the entire Clean Air Act and Congress's expressed
intent, the Court concluded, "a standard is a standard even when not enforced
3
through a manufacturer - directed regulation." Id. at 254. Consequently, the
Court held:
A command, accompanied by sanctions, that certain
purchasers may buy only vehicles with particular
emission characteristics is as much an "attempt to
enforce" a "standard" as a command, accompanied by
sanctions that a certain percentage of a
manufacturer's sales volume must consist of such
vehicles.
Id. at 255.
In reaching this decision, the Court specifically recognized the local
purchase /use ordinance would not - by itself - prevent manufacturers from
selling CARB- certified products in other parts of the State. Id. However,
almost presciently anticipating the Solana Beach ban, the Court properly
recognized:
But if one State or political subdivision may enact
such rules, then so may any other; and the end result
would undo Congress's carefully calibrated regulatory
scheme [of federal pre- emption].
Id. at 255.
Accordingly, the Court vacated and remanded the district court's
decision, which had incorrectly held the purchase /use requirements were
outside the scope of Section 209.
Courts have held that local bans on the "use" of construction equipment
(which complied with EPA emission standards) similarly violated Section 209
of the Clean Air Act. (See EMA vs. Robert Huston, 190 F. Supp.2d 922, (W.D.
Texas, 2001).) In this case, the State argued that their local use ban or "rule is
not designed to reduce construction equipment's overall emissions, but rather
only to bar emissions during the morning rush -hour time." (See 190 F.
EI
Supp.2d at 927.) The federal court directly rejected this argument and
concluded that "the morning construction ban, as a standard or other
requirement relating to emission control, is pre - empted by § 209(e) of the
federal Clean Air Act." Id. at 927. In this same case, the State unsuccessfully
argued that an "ultra- clean" commercial fleet requirement (analogous to the
flawed SCAQMD program described above) "places no technology- forcing
sales restrictions or sales quotes on non -road equipment manufacturers, and
in fact achieves a "synergy" between federal standards and state controls for
emissions and air quality". Id. at 928. Again, the federal court held "the
regulation, despite TRRCC's [the State EPA's] attempts to portray it as merely
an in -use control, is clearly an attempt by the State to control the emissions of
non -road vehicles through a 'standard or other requirement.' Id. at 929.
Consequently, the Court held these requirements were also invalid due to
federal pre - emption arising under the Clean Air Act. Id.
IV. NEWPORT BEACH CANNOT LEGALLY INTERTWINE NON -
PREEMPTED WITH PRE- EMPTED REGULATIONS TO CIRCUMVENT
FEDERAL PRE- EMPTION
In its defense, Newport Beach may claim that its blower ban is intended
primarily to address noise and /or some other issue and not emissions from a
"mobile source ". However, as previously explained, the staff report
establishes the intent in the administrative record, and the language of the
ordinance "on its face" clearly demonstrate the ban was primarily designed to
impose an emission standard to control the emissions from gasoline - powered
blowers.
Legal Precedent
Because the proposed Newport Beach ordinance is at least
partially (if not primarily) designed to regulate in an area that is clearly pre-
empted under federal law, the entire ordinance is invalid. Recent legal
precedent from a federal district court in California reaffirms that once a
locality at least partially violates federal pre - emption, the entire resulting
1
ordinance is tainted and invalid (even if part of the ordinance was grounded
in a non - pre - empted area). For example, CARB's Electric Car or Zero
Emissions Vehicle (ZEV) regulations were not expressed as a "fuel economy
standard" because they were primarily developed to achieve CARB's air
quality goals. On that basis, CARB argued that its electric car regulations did
not violate or infringe upon the broad federal pre - emption over fuel efficiency
for motor vehicles. The Court rejected this argument because CARB had
admitted in the record that its electric vehicle program was in part
"intertwined" with or linked to improved fuel efficiency. Central Valley
Chrysler- Plymouth v. California, 2002 U.S. Dist. Lexis 20403, No. CV -F -02 -5017
(E.D. Cal. June 11, 2002). The Court specifically concluded that "pre - emption
cannot be avoided by intertwining pre - empted requirements with non -pre-
empted requirements." See Central Valley at 12. Accordingly, the Court
enjoined SCAQMD from its enforcing its legally defective ZEV mandates and
granted a Summary Judgment Motion for the manufacturers and retailers. Id.
Given the facts discussed below, we are confident a federal district court
would reach the same conclusion in this case.
V. CONCLUSION
Efforts to restrict or ban tools that are efficient, environmentally
responsible, and improve quality of life should be replaced by efforts to
provide instruction on their safe and courteous use. OPEI would encourage
any effort to instruct and inform the public in proper use and maintenance, as
well as, train the professional users on the courteous use of leaf blowers. It is
for this purpose; resources have been developed by OPEI and are available on
our website at www.opei.org.
However, I do not want to leave you with a list of "what not to do"
without providing some potential solutions that are measured, effective, and
help accomplish the goals of Newport Beach without violating federal law.
1) Establish generous time of use restrictions within the ordinance. This is
a reasonable way to provide times of intended quiet within the city.
0
2) Establish restrictions on directing landscape debris into storm drains.
Again, this is a reasonable expectation and a way of providing an
environmental benefit to the community.
3) Training programs should be established for professional operators and
landscaping companies on the safe and courteous use of leaf blowers
and other landscaping and turf maintenance equipment to minimize the
effect of entrained dust and particulates, the management of debris to
prevent water contamination, and landscaping techniques to minimize
the negative aspects while maximizing the environmental benefits that a
well maintained landscape provides. In addition, emphasis on
equipment maintenance should be highlighted to assure the equipment
is operating efficiently.
4) Requiring "City-owned equipment" to be certified to the California Tier
3 requirements is a decision well within the jurisdiction of the City. This
creates a requirement for the city to purchase and use the latest
technology, or through contractual arrangements, companies doing
landscape management for the city to use the latest technology, thus
reducing the emissions.
5) Create trade -in / purchase incentives to replace older blowers and other
landscape equipment with newer and cleaner CARB certified equipment
and alternative technologies.
Today's outdoor power equipment, in compliance with California's
emissions regulations are more than 70% cleaner than pre - regulated
equipment. The noise levels of blowers have also been reduced significantly
with many models available as low as 65 dBA (measured in accordance with
ANSI B175.2). It is for the positive benefits that these products bring as
enhancements to the quality of life in the City of Newport Beach and the
potential negative legal ramifications that the proposed illegal ban creates,
VA
that I encourage the City to reject the ordinance banning gasoline powered
blowers and take the positive actions as suggestions above.
Sincerely,
James MI;New
Senior Vice - President of Technical Services
341 S. Patrick Street
Alexandria, VA, 22314
(703)- 549 -7600
www.opei.org
jmcnew(@opei.org
M