ALJDEC

99A-V260-DEQ · Department of Environmental Quality · 2000-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2000 APPEARANCES: The Appellant, Enwiya Yonan, appeared personally. The Arizona Department of Environmental Quality was represented by Assistant Attorney General Sonia D. Overholser. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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 is the owner of a 1979 Dodge pickup truck. 2. The Appellant’s pickup truck is located at his residence in Maricopa County, Arizona. State statutes and regulations identify Maricopa County as “area A”. State regulations require that his truck pass an Arizona Department of Environmental Quality (ADEQ) vehicle emissions inspection. 3. On October 6, 1999, Appellant brought his pickup truck to an official vehicle inspection station operated by a subcontractor of the ADEQ. Appellant’s pickup truck did not pass the emissions inspection. 4. After failing the vehicle emissions inspection, Appellant went directly to a test station operated by ADEQ for a referee inspection. 5. The referee inspection of Appellant’s vehicle was performed by Inspector Marty Gemmrig. Inspector Gemmrig is the ADEQ vehicle emission waiver manager. He is a master technician for trucks and automobiles. Inspector Gemmrig personally performs approximately 50 referee inspections per month. 6. Inspector Gemmrig performed a visual equipment inspection of Appellant’s vehicle and determined that the vehicle needed repair to its air pump and evaporative control system consistent with the original manufactured configuration for the vehicle. Specifically, the inspector found that:

a) the diverter valve was missing; b) evap charcol cannister was broken; c) the carb bowl vent line was missing; and d) improper vacuum control routing.

7. After discovering the damaged and missing equipment described in Finding of Fact No. 6 above, no further testing of Appellant’s vehicle took place. 8. As a result of the referee inspection, Appellant did not receive a waiver of the vehicle emission requirements necessary to pass the inspection. 9. Appellant is responsible for repairing his vehicle so that it passes both the equipment and the emission testing requirements. 10. There are resources available to Appellant for obtaining the vehicle parts necessary to pass the equipment and emission tests. Available sources for the parts are junkyards, auto supply stores and auto dealerships. While the parts necessary to properly repair Appellant’s vehicle may take some effort to locate, the parts should be available.

CONCLUSIONS OF LAW

1. The Director of ADEQ administers a comprehensive emissions inspection program for motor vehicles registered in Arizona. A.R.S. §49-542(A) 2. Appellant’s 1979 Dodge pickup truck is subject to a tampering inspection during its annual emission testing, which includes a visual check to determine if there is an operational air pump or air injection system, and an evaporative control system. A.R.S. §49-542(G) and A.A.C. R18-2- 1006(E)(6). Such an inspection was performed by Inspector Gemmrig. 3. The absence or malfunction of Appellant’s air pump and evaporative control system, as described in Finding of Fact No. 6 above, constitutes “tampering”. A.R.S. §49-541(15) and A.A.C. R18-2-1001(60). 4. Appellant failed to meet his required burden of proving by a preponderance of credible and reliable evidence that ADEQ’s failure of his vehicle for tampering at the referee inspection was improper or that he is entitled to a certificate of waiver from the Director of ADEQ for his vehicle that has failed reinspection. A.R.S. §49-542(L) 5. Appellant’s appeal should be dismissed because his 1979 Dodge pickup truck does not have an operational air pump and evaporative control system in violation of state and regulatory requirements, and, further, because he failed to establish an entitlement to a certificate of waiver from the Director of ADEQ. 6. ADEQ’s decision to fail Appellant’s 1979 Dodge pickup for tampering at the referee inspection is justified by the evidence of record. 7. In order to pass reinspection of his vehicle, Appellant is required to repair the items described in Finding of Fact No. 6 above. A.R.S. §49- 543(E).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Appellant’s appeal in this matter be dismissed and that the prior failure of Appellant’s 1979 Dodge pickup for tampering by the Arizona Department of Environmental Quality be upheld and affirmed. … Done this day, January 21, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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