BILL ANALYSIS �
AB 1102
Page 1
Date of Hearing: January 13, 2014
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 1102 (Allen) - As Amended: January 6, 2014
SUBJECT : South Coast Air Quality Management District: beach
burning: coastal development permit
SUMMARY : Prohibits the South Coast Air Quality Management
District (SCAQMD) from regulating, prohibiting, or restricting a
person from engaging in a beach burning for a recreational,
ceremonial, or open burning conducted in a public coastal area
marked by the accumulation of sand. Requires a local or
regional authority located in the SCAQMD's jurisdiction to
obtain a coastal development permit (CDP) to regulate, prohibit,
or restrict the use of fire rings.
EXISTING LAW :
1)Pursuant to the Coastal Act:
a) Requires a person wishing to perform a development in
the coastal zone to first obtain a CDP from the Coastal
Commission (Commission) or a local government with a
Commission-certified local coastal program.
b) In carrying out the California Constitution's protection
of coastal access, requires maximum access and recreational
opportunities to 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 over use.
c) Requires lower cost visitor and recreational facilities
to be protected, encouraged, and, where feasible, provided.
Declares a preference for developments providing public
recreational opportunities.
d) Requires, wherever appropriate and feasible, public
facilities, including parking areas or facilities, to be
distributed throughout an area so as to mitigate against
the impacts, social and otherwise, of overcrowding or
overuse by the public of any single area.
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2)Pursuant to SCAQMD's open burning regulations:
a) Effective March 1, 2014, prohibits beach burning,
unless:
i) Particulate matter 2.5 air quality index value of
100 or less has been forecast for the coastal source
receptor area; and
ii) Beach burning occurs in devices that are:
(1) At least 700 feet from the nearest residence;
(2) At least 100 feet apart from one another; or
(3) 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.
b) Explains that beach burning devices may not be made
available by a state or local authority if a city or county
has declared, pursuant to existing authority, that
designated beach burning devices within its boundaries
cause a nuisance, as defined by existing law, due to wood
smoke exposure.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background. There are approximately 765 beach fire rings in
Los Angeles and Orange counties with the overwhelming majority
(approximately 90 percent) along the Orange County coastline.
In the City of Newport Beach (City), the beach fire rings have
been a part of the recreational experience since the late
1940s or early 1950s and are recognized as a lower cost
visitor and recreational facility.
In recent years, the City has been the epicenter of a highly
publicized debate over whether fire rings should be protected
because of their recreational value or strictly regulated
because, among other things, the hazards of wood smoke.
According to the SCAQMD, the health effects from exposure to
household and neighborhood wood smoke have been studied
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extensively. The greatest health effect from wood smoke
exposure originates from the fine particles that can cause
health problems ranging from minor irritations such as burning
eyes and runny noses to chronic illnesses such as bronchitis.
2)The City steps into the ring. In 2009, the City began a
discussion about updating its fire ring policy. Specifically,
the City's Parks, Beaches and Recreation Commission (PB&R
Commission) proposed amendments that would restrict fires
solely to concrete fire rings, prohibit the burning of
pallets, and hold those parties using the fire rings
responsible for extinguishing the fire. The PB&R Commission
voted unanimously to direct staff to bring the item forward to
the City Council for approval.
The PB&R Commission's proposal was adopted by the City Council
on October 13, 2009. At that same meeting, a number of city
council members expressed their desire to have all of the
City's beach fire rings removed, referencing general health
concerns, the mess around fire rings, the smell of lighter
fluid, and how the fire rings take up space. One council
member said that the "tipping point" for her was when she
learned that the police have received calls at 4:00 a.m. on
busy beach days "because people are there two hours before the
beach opens trying to reserve [fire rings]." The City Council
approved a motion at the meeting "to direct staff to bring a
report back to Council to remove all fire rings in the City."
The City Council's expressed desire to remove fire rings
created an immediate fire storm, with passionate arguments
made on both sides. A month later, due to the emotions
surrounding the issue and with more pressing matters before
the City Council, a decision was made to table the issue
"until calmer waters."
More than two years later, at its March 13, 2012 meeting, the
City Council voted unanimously "to direct staff to take the
necessary steps to remove the sixty (60) fire rings at Big
Corona and the Balboa Pier areas." The City Council's staff
report highlighted the "health impacts to nearby residents and
other beachgoers due to smoke and particulate matter from the
beach fires" 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."
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3)The City goes to the Commission. On October 22, 2012, the
City filed a CDP application with the Commission to remove all
fire rings from the City's beaches. This includes 33 fire
rings near the Balboa Pier and another 27 on a patch of Corona
del Mar State Beach known as Big Corona.
The Commission agendized the CDP application for its March 6,
2013 public hearing. The Commission staff report was released
two weeks earlier and recommended denial of the CDP "because
removal of the fire rings would deny the public access to this
popular form of lower cost public recreation." In addition,
the report stated that removing these fire rings "would shift
the already high demand for fire rings to other coastal
locations, creating new access and recreational demands
there."
The staff's recommendations were made in furtherance of the
Coastal Act, which requires "[l]ower cost visitor and
recreational facilities?[to] be protected, encouraged, and,
where feasible, provided," (PRC � 30213) and "[w]herever
appropriate and feasible, public facilities?[to] be
distributed throughout an area so as to mitigate against the
impacts, social and otherwise, of overcrowding or overuse by
the public of any single area" (PRC � 30212.5).
Shortly before the hearing, the Commission was informed that
the SCAQMD was going to address fire rings through an
amendment to its own regulations. In light of this
information, the Commission took no action at the March 6,
2013 hearing and continued the matter until the SCAQMD's
action is finalized.
4)SCAQMD regulates fire rings. Prior to July 2013, the SCAQMD's
regulation on open burning (Rule 444) specifically excluded
from its purview "recreational fire or ceremonial fires" and
"open burning of?untreated wood?for the purpose
of?[g]enerating warmth at a social gathering."
In March 2013, based on knowledge of wood smoke health
effects, the number of existing beach fire rings, proximity of
those fire rings to residences, and the extent of fire ring
usage, SCAQMD staff developed a proposal that would have
removed the beach fire exemption in Rule 444 and prohibited
beach burning after January 1, 2015. According to an SCAQMD
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staff report, the proposal received significant public comment
at a March 28, 2013 public consultation meeting, as well as
via e-mail, direct mail, and telephone correspondence during
the subsequent public review period. As a result, the
proposal was revised to essentially allow fire rings to remain
if they 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." This revised proposal, however, would allow a
city or county to ban fire rings by declaring that they cause
a nuisance under existing law.
On July 12, 2013, following two and half hours of public
testimony, SCAQMD approved amending Rule 444 to reflect the
revised proposal. The amendments will be effective beginning
on March 1, 2014. SCAQMD also approved issuing a request for
bids to design and demonstrate up to 25 low-emission fire
rings fueled by sources other than wood such as propane or
natural gas.
SCAQMD claims that fire rings at Dockweiler State Beach,
Huntington City Beach, and Bolsa Chica State Beach are not
expected to be affected by the distance criteria in the
amended Rule 444. However, all 60 of the fire rings in the
City "would have to be better dispersed and/or moved to
another beach in the city to meet the rule's spacing
requirements." Additionally, "a few dozen fire rings at
Huntington State Beach and other beaches would have to be
dispersed at greater distances."
5)The City Misinterprets Rule 444. In response to the SCAQMD's
revised Rule 444, the City developed a proposal to space the
existing wood-fueled rings at a minimum of 50 feet from each
other while retaining the same overall footprint within which
the existing 60 fire rings are located. Implementation of
this proposal would mean that only 27 fire rings would be
retained and 33 would be removed. To replace some or most of
the visitor-serving value of the removed 33 fire rings, the
City would participate in the SCAQMD's low-emission fire rings
demonstration project.
Both the SCAQMD and Commission openly expressed their concerns
with the City's proposal. On several occasions, SCAQMD staff
explained to the City that based on the City's circumstances,
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it must space fire rings at least 100 feet from each other
(not 50 feet). In a letter from the SCAQMD's executive
officer to the City's city manager, the executive officer
stated in unequivocal terms that if the City proceeds with the
50 foot spacing plan, it will be in violation of Rule 444.
In a letter from Commission staff to the City, the Commission
staff expressed its preference for no net loss in the number
of fire rings on the City's beaches. The letter explained that
"any modification to the type, location and/or number of beach
fire rings within the City" requires a CDP application that
includes an analysis of all feasible alternatives. Moreover,
if the City participates in SCAQMD's low-emission fire rings
demonstration project (which would also require a CDP), the
program should allow unrestricted use of the fire rings to all
members of the public similar to their current use.
Despite the issues raised by SCAQMD and Commission staff, the
City approved its proposal to space the fire rings 50 feet
from each other and to remove 33 of its 60 fire rings. As
part of this action, the City authorized the mayor to enter
into any agreement associated with SCAQMD's low-emission fire
rings demonstration project and directed staff to seek permit
approval by the Commission.
6)The Main Problem. Although Rule 444 applies to all geographic
areas under the SCAQMD's jurisdiction, its impact (by design
or coincidence) appears to be focused on the City's fire
rings. Based on discussions with SCAQMD and Commission staff,
it is apparent that compliance with Rule 444 and the Coastal
Act are not mutually exclusive: if the City spaces out its
fire rings at least 100 feet from each other, it has enough
beach area to keep all fire rings. As such, the policy goals
related to air quality and lower cost visitor and recreational
facilities could be achieved.
The problem, however, is that the City is pursuing its plan to
space the fire rings out by only 50 feet from each other and
remove 33 rings, which, as explained above, creates problems
with Rule 444 and the Coastal Act. The City has not yet
submitted their new fire ring plan to the Commission, and with
March 1, 2014 (the date Rule 444's beach burning rule becomes
effective) less than two months away, it looks like the City
will either be in violation of Rule 444 or have to comply with
Rule 444 without a CDP, which would likely violate the Coastal
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Act.
The situation is exacerbated by the fact that Nowruz, the
Persian New Year, will be celebrated in March. For about 20
years, Nowruz in Orange County has meant a trip to Big Corona
State Beach, where bonfires play an important part in the
holiday's cultural traditions. According to the Harvard
University's Center for Middle Eastern Studies, on a night
during the last week of the old year (called Chahar Shanbe
Suri), people traditionally gather and light small bonfires in
the streets and jump over the flames shouting: "zardie man az
to, sorkhie to az man" in Persian, which means, "may my sickly
pallor be yours and your red glow be mine." With this phrase,
the flames symbolically take away all of the unpleasant things
that happened in the past year. Because jumping over a fire
is dangerous, many people today simply light the bonfire and
shout the special phrase without getting too close to the
flames.
According to local news reports, about 4,000 people crowded
Big Corona State Beach during last year's Nowruz celebration
to feast, jump fires, and spend time with family.
7)Suggested Amendments. The author's primary intent with this
bill is to protect fire rings because of the revenue they help
bring to local cities and the affordable attraction they
provide for tourists, families, and residents alike.
This bill proposes to achieve this protection by precluding
the SCAQMD from regulating, prohibiting, or restricting a
person from engaging in a beach burning for a recreational,
ceremonial, or open burning conducted in a public coastal area
marked by an accumulation of sand.
This proposal may be overly broad because it would restrict
SCAQMD from regulating any open burning on the beach, not just
wood in fire rings. Furthermore, as explained above, the
implementation of SCAQMD's revised Rule 444 is tailored in
such a way as to prevent the harms of wood smoke to nearby
residences while potentially allowing the no net loss of fire
rings. Thus, the SCAQMD's rule can coexist with the author's
intent to protect fire rings.
Many believe that the bill is needed because the motives and
science behind Rule 444 are suspect. This belief has led to a
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lawsuit against SCAQMD, which is currently pending in the
Orange County Superior Court. The Legislature traditionally
does not involve itself in matters with pending litigation, as
it creates the optics that the Legislature is a "shadow
court," where parties can go for a decision when litigation is
pending and they are not satisfied with the judicial system.
Therefore, it may not be appropriate for the Legislature to
interfere with the case through the current bill proposal.
What may be appropriate is for the Legislature to ensure that
the City follows both air quality laws and the Coastal Act.
Additionally, the Legislature may wish to help address the
problem that will likely occur when the revised Rule 444
becomes effective on March 1, 2014 and the City is not
prepared with an approved CDP. Therefore, the committee and
the author may wish to consider amendments that 1) delay the
effective date of the beach burning provisions in Rule 444 on
a local government until an approved CDP is obtained and
implemented; 2) require local governments affected by Rule
444's beach burning provisions to obtain and implement an
approved CDP within a reasonable period of time; 3) expressly
require the local government's CDP application to analyze
alternatives and mitigation measures that would avoid or
minimize the need to remove or restrict the use of the fire
rings; and 4) establish that a local government cannot use
Rule 444's beach burning nuisance clause as a pretext for
avoiding Coastal Act compliance. With regard to the first
suggested amendment, there is obviously a procedural issue
since the bill, if passed, would not take effect until January
1, 2015. An urgency clause could be added, but it is not
likely that the bill will be enacted before March 1, 2014.
The committee may wish to ask the SCAQMD staff at the
committee hearing if it is possible for the SCAQMD to postpone
the effective date of Rule 444. Another option is to make the
amendment retroactive to March 1, 2014 to absolve a local
government of any liability that may accrue from the beach
burning rule in 2014.
REGISTERED SUPPORT / OPPOSITION :
Support
California Travel Association
City of Los Alamitos
Friends of the Fire Rings
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Mayor Pro Tempore Mathew Harper, City of Huntington Beach
National Federation of Independent Business
Orange County Board of Supervisors
Opposition
SCAQMD's Legislative Committee
9 Individuals
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092