5 Colo. Code Regs. § 1001-15-D-III
Adopted September 18, 2003
Basis and Purpose
Regulation Number 12 establishes as a control strategy, the Diesel Opacity Inspection and the Diesel Fleet Self-Certification Programs. Both programs require periodic inspection of both light-duty and heavy-duty diesel powered vehicles. Emissions related repairs are required of those vehicles that do not comply with inspection requirements. The intended purpose of Regulation Number 12 is to reduce diesel vehicle emissions. The diesel inspection and maintenance (diesel I/M) program is no longer an element of the State Implementation Plan, with the April 19, 2001 changes to the PM SIP, all elements of regulation 12 were removed from the SIP. The US EPA approved this SIP revision on September 16, 2002 and it became effective October 16, 2002.
The rule revision implements various provisions of Section 42-4-401 through 414 and 25-7-122 C.R.S. as amended pursuant to H.B. '03-1053, as follows:
* The distinction between light and Heavy-duty diesel vehicles is redefined,
* New Heavy-duty diesel vehicles become exempt from emissions testing for four years,
* The Heavy-duty diesel test cycle is extended to two years,
* Vehicles routinely operated in the program area are required to be tested,
* Allows the use of an automated snap-acceleration test procedure for fleets and for roadside enforcement,
* Eliminates visual opacity testing for fleets older than ten years,
* Allows the use of newer technology opacity meters,
* Obsolescent an conforming changes are made, which changes are not substantive
The revised rule identifies the J1667 Recommended Practice, Snap Acceleration Smoke Test Procedure for Heavy-duty Powered Motor Vehicles, © 1996 Society of Automotive Engineers Inc. (SAE) as the automated snap-acceleration test procedure that may be used for fleet inspections. The Commission adopted the SAE J1667 test procedures based on the authority set out in Section 42-4-414(2) (b), C.R.S., as revised by HB03-1053 allowing the use of an automated opacity metering protocol. The SAE J1667 test procedure is such an automated opacity metering protocol.
One participant stated that small operators tend to own older vehicles than large operators. Therefore, he noted that the mandatory use of an opacity meter for older fleet vehicles, but not for newer fleet vehicles, imposes a somewhat more onerous requirement on small operators. However, the requirement to use an opacity meter when testing older vehicles is set out in statute and the Commission does not have the authority to change that requirement. Section 42-4-414(2) (b). Furthermore, the requirement for the use of an opacity meter on older, but not newer vehicles is justified because newer vehicles tend to be cleaner than older vehicles.
The Commission also readopted the rule in its entirety. Prior to HB03-1053, Section 42-4-414, C.R.S., vested rulemaking authority over the Diesel Fleet Self-Certification Program with the executive director of the department of public health and environment. The previous version of Part A, of Regulation Number 12 was adopted by the Commission pursuant to a delegation of authority from the executive director. HB03-1053 revised Section 42-4-414 to delegate such rulemaking authority to the Commission directly from the General Assembly. The Commission hereby readopts Regulation Number 12 in its entirety pursuant to the authority granted it by the General Assembly in Sections 42-4-403 and 42-4-414.
Federal Requirements
There are no federal laws or rules requiring the Diesel Fleet Self-Certification Program or the Diesel Opacity Inspection Program. Both programs have been removed from the state implementation plan. Both programs are established by state statute and exceed the minimum federal requirements.
Statutory Authority
Specific statutory authority for amendments to Regulation Number 12 is set out in Sections 42-4-403 and 42-4-414, C.R.S.
Findings Pursuant to § 25-7-110.8
The selection of the SAE J1667 test procedures as the automated opacity metering protocol approved by the Commission is based on reasonably available, validated, reviewed, and sound scientific methodologies. All validated, reviewed, and sound scientific methodologies and information made available by interested parties concerning the selection of an automated opacity metering protocol was considered. In fact, the J1667 test procedure was adopted, in part, due to suggestions from the diesel engine manufacturing sector over the years. The primary purpose of the adoption of the SAE J667 test procedure is to make diesel emissions test more convenient; it was not adopted to result in a demonstrable reduction in air pollution. To further enhance convenience and flexibility, the test is made optional for fleets. Fleets have the choice of continuing to use the lug-down tests already set out in the rule. For fleets, the test is optional. Thus, the adoption of the J1667 test procedures is administrative in nature. The optional nature of the J1667 test procedures makes the rule the most cost-effective alternative and will maximize the air quality benefits of Regulation Number 12 in the most cost-effective manner by giving the fleet's additional flexibility.
Most of the remaining rule revisions are exempt from the determinations required by § 25-7-110.8 C.R.S., because the changes were adopted to implement statutory provisions, rather than reduce air pollution. For the most part, the regulatory revisions relax existing inspections for diesel vehicles and the Commission has no discretion but to adopt them under state law. One area in which the Commission exercised discretion in a manner that may result in a reduction in air pollution concerns the definitions of the terms "principally operated" and "routinely operated". However, such definitions are administrative in nature and are also exempt from the requirements of Section 25-7-110.8, C.R.S. HB03-1053 expanded the scope of the programs to include vehicles "routinely operated in the program area or principally operated from a terminal, maintenance facility, branch, or division located within the program area", but did not define these terms. The statutory requirement to include such vehicles in the programs cannot reasonably be administered without defining the terms. For guidance in defining the terms, the Commission turned to the 90-day rule established in Section 42-4-310(1) (c), C.R.S., for motorists commuting into the AIR Program. Thus, such definitions are administrative, rather than scientific, in nature. The 90-day rule was chosen to implement the overall legislative intent, rather than to achieve a specific reduction in air pollution. For these reasons the determinations enumerated in § 25-7-110.8(1), C.R.S., do not apply.
5 CCR 1001-15-D-III