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HomeMy WebLinkAbout14 - Fire Rings in Newport Beach: Compliance with AQMD Rule 444 and Intended Compliance with the California Coastal Act - Amended(9) TO: AMENDED CITY OF NEWPORT BEACH City Council Staff Report January 13, 2015 Agenda Item No. 14 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, City Manager (dkiff @newportbeachca.gov) 949 - 644 -3001 PREPARED BY: Dave Kiff, City Manager (949) 644 -3002 TITLE: Fire Rings in Newport Beach: Compliance with AQMD Rule 444 and Intended Compliance with the California Coastal Act ABSTRACT: The City and its 60 beach fire rings was required to comply with the South Coast Air Quality Management District's (AQMD's) Rule 444 (Open Burning) in March 2014. In late November 2013, the City Council put forth a compliance plan ( "Plan "). The Plan was never fully implemented, as the City's application to the Coastal Commission was never deemed complete. In the meantime, the City complied with both Rule 444 and the Coastal Commission's strictures by adopting an ordinance limiting fire ring fuels to charcoal -only. Council Member Scott Peotter has asked that the Council consider a new approach. This agenda item proposes a two - tiered approach to modify the Council's previous direction. RECOMMENDED ACTION: a) Authorize staff to implement an Interim Plan that would allow wood - burning upon adoption of the Interim Plan, resulting in 15 wood - burning rings citywide separated by at least 50'. Eight (8) would be near the Balboa Pier (to the eastern side) and seven at CdM State Beach; b) Authorize staff to ask AQMD to allow the City to define "Contiguous Beach Area" as being interrupted by a specific distance of at least one mile or the Newport Harbor jetty entrance (for example). If AQMD concurs, authorize staff to modify the Interim Plan to allow up to 30 wood - burning rings citywide, with 15 rings at Balboa ENV and 15 at CdM State Beach; c) Authorize staff to amend the City's Coastal Development Permit (CDP) application for a Permanent Plan that would return 60 wood- burning rings to the community, with: 18 wood- burning rings at CdM State Beach (13 separated by 100' within the 700' of residences, and five more outside of the 700' line); • 26 wood - burning rings at the Balboa Pier area, with 13 on each side, all separated by 100'; • 9 wood - burning rings at the Newport Pier /North area, separated by 100'; and • 7 wood - burning rings at Newport Dunes, separated by 100'; and d) If the Council deems the Permanent Plan ready for the CDP process, authorize staff to amend the CDP accordingly. FUNDING REQUIREMENT: Please see funding comments in the Discussion section. The Permanent Plan would be less costly than the current operations. DISCUSSION: Concrete fire rings are located on the beach in two areas including Corona del Mar (27 fire rings) and the Balboa Pier area (33 fire rings). While fire rings are appreciated by many beachgoers, concerns were raised in 2012 and in previous years regarding: • Health impacts to nearby residents, city employees assigned to the beach, and visiting beachgoers due to smoke and particulate matter from woodburning; and • Safety of fire ring users and other beachgoers when hot ash is not doused or disposed of properly, or when individuals are injured after falling near or in a fire ring. As a result of these concerns, the City Council acted in March 2012 to direct staff to remove or restrict wood - burning fire rings. Here is a chronology of related actions since that time: CHRONOLOGY May 2012 - February 2013. The City and the Coastal Commission correspond regarding the City's application for a CDP to remove the wood - fueled rings. March 6, 2013. The Coastal Commission hears the City's CDP application, but decides not to vote on it. At the suggestion of Commissioner Burke, other Commissioners continue the hearing and our application until such time as AQMD has a chance to review its rule on Open Burning (Rule 444). March - May, 2013. AQMD conducts air quality monitoring studies in the area to determine the air quality impacts of recreational beach fires. On May 15, AQMD representatives presented a preliminary assessment of the findings to a meeting of Orange County Mayors. These health impact findings included: • Wood smoke's particulate matter is • Wood smoke is a source of several primarily in the <2.5 micron size range. hazardous air pollutants (HAPs). • One fire ring's PM2.5 emission rate is equal to three 2013 fleet average diesel trucks or the second hand smoke from 800 cigarettes. • Thirty fire rings' PM2.5 emission rate is equal to "an average large south coast refinery." • Fire ring wood smoke impacts beach areas and extends into communities. • 1 -hour average PM2.5 concentrations can exceed public health guidance levels. July 2, 2013. The City withdraws its CDP application from the Coastal Commission's docket. The Coastal Commission was scheduled to consider the item at its July 11, 2013 meeting and could not delay its decision to wait until after AQMD adopted AQMD's rule amendments due to provisions of the Permit Streamlining Act. July 12, 2013. Following a staff report, a presentation, and public comment, the AQMD Governing Board narrowly approves an amendment to Rule 444 — Open Burning (for a selected section of Rule 444, see Attachment A). Under the measure, wood - fueled beach fire rings will continue to be allowed in Los Angeles and Orange Counties as long as: 1. A city has not made a determination based on state law that smoke from wood - fueled fire rings poses a nuisance. In this case, all wood - fueled fire rings can be removed; or 2. Effective March 1, 2014, wood - fueled fire rings can remain if: • They are located 700 feet or more from the nearest residence; OR, if they are less than 700' from the nearest resident ... • They are spaced at least 100 feet apart from another wood - fueled ring. However, if a city has 15 or fewer fire pits within a "contiguous beach area ", they may be separated by at least 50 feet from other wood - fueled rings; and • The air quality for fine particulates (PM2.5) in coastal areas is not forecasted to exceed 100 on the Air Quality Index (i.e., it isn't a regional "no burn" day). This is expected to occur infrequently under special meteorological conditions. At this same time, AQMD discussed coordinating and funding an alternative - fueled fire ring demonstration project using natural gas or propane to fuel beach or beach - adjacent fire rings. August 14, 2013. Assembly Members Travis Allen (R- Huntington Beach) and Sharon Quirk - Silva (D- Fullerton) co- sponsor an amended Assembly Bill 1102. The bill said essentially that cities or counties needed a CDP before removing or restricting the use of beach fire rings. AB 1102 was later held in the California State Senate's Committee on Appropriations and did not proceed further in the 2013 -14 Legislative Session. Summer -Fall 2013. AQMD issues a Request for Proposals (RFP) for the alternative -fuel fire ring demonstration project. The City staff participates in the technical review of the proposals, but expresses concerns about the supervision, use, and safety of the devices, as do representatives from California State Parks. October 17, 2013. The International Agency for Research on Cancer (IARC), part of the World Health Organization (WHO), classifies outdoor air pollution as carcinogenic to humans. Particulate matter, a major component of outdoor air pollution, was evaluated separately and is now also classified as carcinogenic to humans. Both are classified as "Group V carcinogens. The Group 1 category is used when there is "sufficient evidence" of carcinogenicity in humans. November 26, 2013. The City Council adopts a plan that attempts to comply with Rule 444, which envisions 27 wood- burning rings separated 50' apart (with 15 rings at Balboa and 12 at CdM State Beach), some group bonfires fueled by natural gas, and a limitation that only wood that is "natural firewood" could be burned in the wood - fueled rings. Prior to the meeting, AQMD warned that the City defined contiguous beach area incorrectly, and that the Plan's 50' spacing would violate Rule 444. The Council adopts it, and City staff proceeds with a CDP application. January 28, 2014. The City Council, awaiting the November '13 Plan's CDP review by Coastal, adopts an interim ordinance (Ordinance #2014 -02) that allows the City to comply with Rule 444 absent Coastal's approval of the November '13 Plan. The Ordinance, which is now NBMC Chapter 11.08.060 (Use of Beach Fire Rings — please see Attachment e), does the following: • Limits the types of fuel that can be used in beach fire rings to natural firewood, low - emission logs, natural gas, or charcoal. Of these four fuels, four may be envisioned in the overall Plan, but only one (charcoal) complies with Rule 444 immediately. • Defines these fuels. • Allows the City Manager or his or her designee to further limit the type of fuel solely to charcoal for a period of time (likely beginning on the date this ordinance is adopted, if it is adopted), if doing so is required to avoid regulatory penalty by a State agency. Portions of the ordinance sunset on November 1, 2016. Shortly after the effective date of Ordinance 2014 -02, the City Manager directed that the only fuel that could be burned in beach fire rings was charcoal. The City's "Charcoal - Only" plan went into effect after 2014's Persian New Year, and is in effect today (Mid - March 2014 through January 13, 2015). The November '13 Plan has its supporters and detractors. Supporters say that beach air quality seems to have improved, and some beachgoers like using charcoal for cooking food. Detractors say that the beach fire ring experience is diminished without large flames, that the smell of lighter fluid is pervasive, and that enforcement is costly and challenging. The Coastal Commission staff has told City staff that they do not believe that the Charcoal -Only plan complies with the Coastal Act, and that it required (and requires) a CDP to continue. Fiscal and Supervision Issues. Prior to the start of enforcement, we estimated the annual costs of the Charcoal -Only Ordinance's supervision at up to $195,000 per year. This included additional staff hours and new positions for Park Patrol. At the time, it did not include a program that the City later embarked upon — that of donating charcoal to those who didn't bring it to the beach. Costs to date (Mid -March 2014 to Mid - January 2015) are at about $145,000 for the period. This includes $12,200 in charcoal given away, $82,700 in salaries and benefits to staff, $44,700 in payments to two security firms, $5,700 in printing and banners, and a few more small items. The highest monthly cost for supervision and charcoal was July 2014, at $25,400 for that month alone. Cost per month averages out at about $16,100.00. Our Recreation and Senior Services staff reports that supervision has been challenging, but not impossible. Despite what we felt was adequate public information, many individuals and families still are unaware of the charcoal -only rule. Some complained that the security firm's approach was imposing and not beachgoer - friendly, and we agreed and switched firms. Our recreation staffers, while dedicated to this effort, did not overly enjoy this job assignment. We did not issue any citations or fines, and did a lot of gaining compliance through conversation. Generally, we received compliance with the charcoal -only rule, but we are not out at the fire rings at all times. Please see Attachment C for a chart showing estimated high -end costs of supervision and enforcement with various alternatives. In that chart, we examine the costs of possible alternatives that mix charcoal and wood rings in similar footprints, but we are not recommending these plans — it appears that both will be very challenging (and costly) to enforce, creating significant frustration with beachgoers confused about why one ring can have charcoal and another wood. The Definition of a "Contiguous Beach Area" As we prepared the November '13 Council staff report, we wondered about the term "Contiguous Beach Area." Rule 444 does not define a contiguous beach area. A presentation made to the AQMD Board in July 2013 suggested that "50' spacing is allowed if (there are) small number of rings on the beach." However, the AQMD staff report for that same meeting said that "...the contiguous beach area condition is intended to consider beaches separately, in terms of rule applicability, if a city has beaches that are separated by another city's or unincorporated area's beaches." AQMD staff later told City staff that the contiguous beach area term was intended to apply to large geographic cities split by other cities or unincorporated areas, like Los Angeles. AQMD staff was very firm on this point. As we noted in November 2013, we struggled with this term's randomness. It is about 1.25 miles (6,700') between the easternmost fire ring at the Balboa Pier to the westernmost ring at Big Corona. The largest interruption of the beach between these points is the Harbor Jetty, but other interruptions of this straight line include homes, bird habitat, and more. It does not seem unreasonable to deem that a break of 1.25 miles between fire rings equates to a non - contiguous beach area. About This Recommendation This recommendation would comply with Rule 444 and is expected to comply with the Coastal Act, although that is subject to interpretation by Coastal staff and the Commission itself. As the staff report notes, the recommendation made by Mr. Peotter would: 1. Authorize staff to implement an Interim Plan (shown as Attachment D) that would allow wood - burning upon adoption of the Interim Plan, resulting in 15 wood - burning rings citywide separated by at least 50'. Eight would be near the Balboa Pier (to the eastern side) and seven at CdM State Beach. 2. Authorize staff to ask AQMD to allow the City to define "Contiguous Beach Area" as being interrupted by a specific distance of at least one mile or the Newport Harbor jetty entrance (for example). If AQMD concurs, authorize staff to modify the Interim Plan to allow up to 30 wood - burning rings citywide, including 15 at CdM State Beach (shown as Attachment E). 3. Authorize staff to amend the City's Coastal Development Permit (CDP) application for a Permanent Plan (and shown as Attachment F) that would return 60 wood- burning rings to the community, with: • 18 wood- burning rings at CdM State Beach (13 separated by 100' within the 700' of residences, and five more outside of the 700' line); • 26 wood - burning rings at the Balboa Pier area, with 13 on each side, all separated by 100'; • 9 wood- burning rings at the Newport Pier /North area, separated by 100'; and • 7 wood - burning rings at Newport Dunes, separated by 100'. The pros and cons of this approach are as follows. To some, the positive aspects of the Permanent Plan are: • Newport Beach would again have 60 wood - burning rings. • All are accessible at no charge or at regular beachgoer's parking charge. • It fully complies with AQMD Rule 444. • AQMD's data shows that fire rings spread out this way do not have the same health impacts from wood smoke as rings spaced closer together. • If you live near the Balboa Pier or CdM State Beach, there are fewer wood - burning rings than before the City embarked down this path. • As to the new ring locations at the Newport Pier and the Dunes, they tend to be away from most residences. • Supervision of this plan appears to be significantly less costly than the 2013 plan, which is both expensive and challenging. • Firewood remains among the most inexpensive fuels to burn in fire rings, allowing a variety of income demographics to enjoy the beaches. • The plan negates the need for participation in any alternative -fuel demonstration project, which our staff and State Parks' staff were leery about embarking upon. • If someone enjoyed the charcoal cooking experience, they could continue to do so without restriction. To others, the possible concerns with the Permanent Plan are: • Those who prefer an entirely woodsmoke -free environment will remain concerned, even with the reduced and more dispersed numbers of fire rings. This includes other beachgoers who do not use or like the rings, and some city and contract staff assigned to the beaches and to fire ring supervision. • Two new areas would see fire rings that hadn't seen them before, although the numbers of rings are fairly low (9 at the Newport Pier and 7 at Newport Dunes). • Some of the rings are moved moderately closer to homes (about 75' to 100'). To avoid this, we could move the rings oceanward, but that can impede construction of the beach berm at Balboa and can increase the likelihood that rings will be inundated during high tides. • It remains uncertain as to whether the Coastal Commission will approve this plan, although the staff there has tended to prefer a plan with more wood - burning rings versus fewer. Note: Staff does not recommend repealing Ordinance 2014 -02 at this time, as various aspects of it will sunset in November 2016 regardless. Nothing in either the Interim or Permanent Plan conflicts with Ordinance 2014 -02. ENVIRONMENTAL REVIEW: Staff recommends the City Council find compliance with South Coast Air Quality Management District's ( "AQMD ") Rule 444 is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15268(a) because the City's proposal to space the fire rings farther apart is mandated by AQMD Rule 444. The City's compliance with AQMD Rule 444 is therefore ministerial. Further, based upon the substantial evidence contained herein, spacing wood - burning fire rings farther apart will not cause significant impacts to the environment. In addition, this project is exempt pursuant to the following CEQA categorical exemptions: (1) Section 15302, Replacement or Reconstruction (Class 2), because certain existing fire rings will be replaced or reconstructed within the same general footprint; (2) Section 15303, New Construction or Conversion of Small Structures (Class 3), because a certain number of new fire rings will be constructed and located upon the beach; (3) Section 15304, Minor Alterations to Land (Class 4), because the installation, construction and movement of fire rings will not result in the removal of healthy, mature, scenic trees; and (4) Section 15311(c), Accessory Structures (Class 11), because the fire rings are seasonal in nature primarily used during the summer months at the publicly owned beach. The City concludes that no "exception" to reliance on any of the categorical exemptions provided above apply for this project as provided in CEQA Guidelines Section 15300.2, because it is not reasonably foreseeable that the re- location and addition of fire rings to comply with AQMD Rule 444 will result in a cumulative impact on the environment or cause significant effects due to unusual circumstances. Additionally, this project is exempt from CEQA under the "common sense exemption" provided in Section 15061(b)(3) because CEQA does not apply where "it can be seen with certainty that there is no possibility that the activity in question may 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). I also discussed these plans with representatives of the Newport Dunes and with individuals who had expressed an interest in this issue previously, including residents near the Balboa Pier and CdM State Beach fire rings. As noted, the Permanent Plan would require additional review and public hearings by the California Coastal Commission, possibly in March 2014 or June 2014 at a relatively local hearing location.