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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