ALJDEC

00A-V023-DEQ · Department of Environmental Quality · 2000-04-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2000, at 9:00 a.m. APPEARANCES: The Appellant appeared on her own behalf. The Respondent, the Arizona Department of Environmental Quality, appeared through Assistant Attorney General, Sonia Overholser. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. The Appellant’s 1983 Toyota Celica was tested for emissions on November 18, 1999. The Appellant’s vehicle passed at idle, but failed the loaded portion of the test for excessive CO. 2. On November 24, 1999, the Appellant’s vehicle was retested, passed idle again, but failed with higher CO readings during the loaded portion of the emissions test. 3. The Appellant then had the vehicle retested at the State waiver lane on January 5, 2000. The testing at the State waiver lane revealed that the Appellant’s vehicle CO readings during the loaded portion of the test were 3.83. 4. There was no dispute that the maximum legal CO emission level for the Appellant’s class of vehicle is 1.2. 5. The 3.83 CO loaded reading was shown to exceed the “twice” the legal emissions standard of 2.4 set forth in A.R.S. §49-542(Y). 6. Credible evidence, produced at hearing, established that the waiver lane computer software is designed so that, when readings of a vehicle exceed twice the applicable standard for that vehicle, the computer will not allow the technician the option of issuing a waiver. 7. The Appellant did not dispute any of the results of the testing that was performed on her vehicle. Instead the Appellant based her appeal on the undisputed fact that she is disabled and lives on a set, limited income of $532.00 per month and cannot reasonably afford the repairs that would be necessary to repair her vehicle so that it would pass the State required emissions test. 8. There was no dispute that the Appellant needs her vehicle nor was there any dispute that the cost of repairs to the vehicle would impose an economic hardship on the Appellant. However, credible evidence, produced at hearing, established that the applicable statute, A.R.S. §49-542(Y) doe not provide for the issuance of a waiver if a vehicle emits more than twice the legal emissions level set forth by statute. CONCLUSIONS OF LAW 1. Section 49-542(Y) provides, in part, as follows: “Vehicles that fail the emissions test at emission levels higher than twice the standard established for that vehicle class by the department pursuant to §49-447 are not eligible for a certificate of waiver pursuant to this section unless the vehicle is repaired sufficiently to achieve an emissions level below twice the standard for that class of vehicle.”. 2. The credible evidence of record supported findings that the Appellant‘s vehicle failed the vehicle emissions test for carbon monoxide (CO) by more than twice the applicable legal standard and that, consequently, the Appellant’s vehicle does not qualify for a waiver. RECOMMENDED ORDER In view of the foregoing, it is recommended that the actions of the Respondent, the

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Arizona Department of Environmental Quality, be affirmed and that this appeal be denied and dismissed. Done this day, April 27, 2000.

________________________________ M. DOUGLAS Administrative Law Judge

Original transmitted by mail this ____ day of April, 2000, to:

Jacqueline E. Schafer, Director Department of Environmental Quality ATTN: Lavonne Watkins 3033 North Central Avenue Phoenix, AZ 85012

By _______________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826