ALJDEC

99A-V193-DEQ · Department of Environmental Quality · 1999-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 1999 APPEARANCES: Appellant appeared on his own behalf and the Arizona Department of Environmental Quality (“Department”) was represented by Assistant Attorney General, Sonia Overholser. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Appellant seeks an exemption from the requirement that his motor vehicles be subject to vehicle emission testing. On August 23, 1999, Department denied Appellant’s requested exemption, citing as the basis for the denial that Appellant did not reside outside of the testing area set forth in A.R.S. § 49-541. Based on Department’s denial of the requested exemption, Appellant filed for the instant appeal. 2. The following uncontroverted facts were adduced at the hearing and are important to note: a. Appellant resides at 43202 N. Old Mine Road on the edge of the Tonto National Forest. Appellant’s residence is located in the outskirts of Maricopa County and according to the Maricopa County map said residence is located within township 6 north, range 5 east. b. Although Appellant, on occasion, drives into Scottsdale for the purpose of medical appointments and shopping, evidence of record demonstrated that he is retired and does not attend school. Thus, any driving by Appellant into the inner portions of Maricopa County is extremely limited. c. Department has issued “Code 52” exemptions from required vehicle emission testing for motor vehicles that are registered outside of the emissions control area but within zip codes which include emissions testing requirements. d. Appellant, while residing at the above referenced address for numerous years, has qualified for a “Code 52” exemption for approximately the last ten (10) years, including 1998. Therefore, when he was required to register his motor vehicle in 1999, he again sought the “Code 52” exemption. e. The Arizona State Legislature passed a law which became effective on January 1, 1999 that effectively expanded the area within which vehicle emissions testing was required. This area now includes property located on the Maricopa County map in township 6 north, range 5 east (the area within which Appellant resides). f. When Appellant arrived on August 23, 1999 at Department’s office seeking the “Code 52” exemption for this motor vehicle, Department’s employees advised Appellant that based on the new law his address was no longer deemed to be an area that was exempt from vehicle emissions testing.

3. Evidence of record demonstrated that Appellant’s residence does, in fact, fall within the area of required vehicle emission testing according to the current applicable law. Nevertheless, Appellant seeks some form of exception to the law based on the fact that he is retired and has had the “Code 52” exemption for several years under the provisions of the law prior to the recent amendment enacted by the Arizona Legislature. 4. There was nothing in the instant record to show that Department has any legal authority or discretion, under the current law, to grant an exception to Appellant which would allow him to avoid the requirement to have his motor vehicle submit to vehicle emission testing prior to renewal of registration. 5. Under all of the salient facts and circumstances of the instant case, it is determined and held that the action of Department, in denying Appellant an exemption from vehicle emissions testing, was neither arbitrary or unjustified. Thus, Appellant failed to sustain the requisite burden of proof necessary to establish entitlement to such an exemption.

CONCLUSIONS OF LAW

1. A.R.S. § 49-542 provides the authority for Department to administer a vehicle emissions testing program according to all of the requirements of the applicable law for such testing. 2. A.R.S. § 49-541 (1 ) (a) sets forth the areas within Maricopa County wherein vehicle emissions testing is required in order to obtain registration for motor vehicles and said provision sets forth that township north, range 2 west through range 6 east is included in said testing area. 3. Under the current applicable law, Appellant’s address, which is located on the Maricopa County map within the section delineated as township 6 north, range 5 east, is found to be located within the boundaries of an area wherein motor vehicle emission testing is required and, as such, Department properly applied said law in its denial of Appellant’s request for a “Code 52” exemption. Thus, Appellant failed to sustain the requisite burden of proof necessary to establish that the prior action of Department should be reversed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Department’s denial of Appellant’s requested exemption from motor vehicle emission testing be affirmed. Done this day, December 10, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of December, 1999, 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