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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 CONFIDENTIALITY NOTICE: The documents accompanying this transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this transmission in error, please notify us immediately at 9491476.0790 or the electronic address above, to arrange for the return of the document(s) to us. 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