BILL ANALYSIS
C.S.H.B. 3036
By: Chisum
April 11, 1995
Committee Report (Substituted)
BACKGROUND
The federal Clean Air Act (CAA) mandates that areas which
exceed set ozone thresholds are in nonattainment and must implement
measures to reduce air emissions. Currently in Texas,
Dallas/Tarrant County, Houston/Galveston, Beaumont/Port Arthur, and
El Paso are the only designated nonattainment areas in the state.
Federal statutes expressly require each nonattainment area to
have in place an Inspection & Maintenance (I&M) Program in which
gasoline powered vehicles must be pass an emissions test or be
repaired before they will be allowed to operate. If the
nonattainment areas fail to implement an I&M program, the CAA
requires sanctions against the state, including the withholding of
up to $800 million in federal highway funds and the federal
government directly controlling the program. If the Environmental
Protection Agency fails to enforce the CAA, a citizens suit will
likely result in federal court intervention.
Faced with strong public disapproval of the I&M program, which
started on January 1, 1995, the 74th Legislature approved a 90 day
delay of I&M which ends on May 1, 1995.
PURPOSE
To provide the legislative guidance regarding how to operate the
vehicle emissions testing program in nonattainment areas of Texas
as required by Congress under the federal Clean Air Act and
enforced by EPA.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill expressly grants
rulemaking authority to the following state agencies in the
following sections of the bill:
the Texas Natural Resource Conservation Commission (TNRCC),
the Public Safety Commission, and the Texas Department of
Transportation (TxDOT) jointly in SECTION 3 [Sections
382.0371(d) and (i), and 382.0734(a), Health and Safety Code].
The rulemaking authority granted in Section 382.0371(i) is
referenced in SECTION 4 [Subsection (a-2) of Article 6675a-2,
Section 2, V.T.C.S.) and SECTION 6 (Subsection (a-2) of
Article 6701s, Section 141, V.T.C.S.];
the TNRCC and TxDOT jointly in SECTION 3 [Section 382.0371(e),
Health and Safety Code]; and
the TNRCC in SECTION 3 [Sections 382.0371(f), (h), (j), and
382.0374(g), Health and Safety Code] and in SECTION 9(b). The
rulemaking authority granted in Section 382.0371(j) is
referenced in SECTION 3 [Sections 382.0372(b) and (c), Health
and Safety Code].
It is also the committee's opinion that the bill does not expressly
grant rulemaking authority but amends existing rulemaking authority
of the following agencies in the following sections of the bill:
the TNRCC in SECTION 2 [Section 382.037(d), Health and Safety
Code]; and
the TxDOT in SECTION 2 [Section 382.037(h), Health and Safety
Code].
SECTION BY SECTION ANALYSIS
SECTION 1. The purpose of this Act is to create the least
stringent vehicle emissions inspection and maintenance program
which will achieve 100% compliance with the federal Clean Air Act.
SECTION 2. Amends Sections 382.037 (d) and (h), Health and Safety
Code as follows:
(d) Allows the TNRCC to require vehicles to be tested at an
appropriate interval under the vehicle emissions inspection and
maintenance program (I&M) rather than only annually or biennially;
requires the TNRCC and the TxDOT to accept alternative verification
or proof of payment of a mitigation fee from a vehicle owner rather
than proof the vehicle passed an emissions test before
registration.
(h) Requires the TxDOT to accept alternatives to prove that
a vehicle has passed an emissions test in order to register the
vehicle; deletes requirement that a vehicle owner in an area where
an annual test is mandated to prove the vehicle passed the test 90
days prior to registration.
SECTION 3. Adds Sections 382.0371-382.0734 to Subchapter B,
Chapter 382, Health and Safety Code as follows:
Sec. 382.0371. HYBRID VEHICLE EMISSIONS INSPECTION AND
MAINTENANCE PROGRAM. (a) Allows vehicles less than 6 years old
to be tested at a decentralized test and repair facility with
approved technology.
(b) Requires vehicles 6 years old or older to be tested at a
centralized facility which is licensed and uses approved technology
and if the vehicle fails the test, the retest may be conducted at
a licensed decentralized test and repair facility using approved
technology; any vehicle which fails the initial inspection for 2
consecutive cycles must be retested at a centralized facility after
repairs.
(c) Prohibits a waiver of the testing requirement unless a
mitigation fee for a vehicle newer than 6 years old has been paid.
(d) Allows an exemption if a vehicle is newer than 6 years
old if the owner pays a $10 mitigation fee each time the vehicle is
registered; any rental vehicles less than 6 years old which is only
registered in an affected area for a partial year may pay a
prorated mitigation fee; the mitigation fees are to be deposited in
the county treasury in a separate account, which shall be deposited
in the Clean Air Fund, unless the county chooses to implement a
repair assistance and scrappage program; if an inspection facility
is allowed to renew registrations, then the facility shall account
for the mitigation fees and remit the fees to the county for the
same purpose as all other mitigation fees.
(e) Requires the TNRCC and the TxDOT to adopt joint rules
whereby vehicle I&M and certification are a condition of
registering a vehicle if the vehicle:
(1) is registered outside a nonattainment area but
driven inside a nonattainment area more than 3 times per week;
(2) when a vehicle is used and will be registered in
a nonattainment area, but has not been registered in a
nonattainment area at any time before or for the preceding year.
(f) Allows the TNRCC by rule to require repair technicians at
a centralized or decentralized facility to be certified, and
require that the facility be licensed.
(g) Allows the TNRCC to purchase or lease remote sensing
equipment to identify grossly emitting vehicles if it will be cost-effective in obtaining credits.
(h) Requires the TNRCC by rule to set a uniform fee for the
initial I&M test for all nonattainment areas; prohibits a facility
to charge a fee for an initial re-test, but allows a fee to be
charged for any other subsequent tests.
(i) Requires the TNRCC, the TXDOT, and the DPS by joint rule
to allow a centralized facility to perform safety inspections.
(j) Prohibits TNRCC from implementing an I&M program more
stringent than federal requirements:
(1) allows the TNRCC by rule to remove a county from
the I&M program if it is not required by federal law or regulation
and the county will maintain full credit and required emissions
reductions;
(2) allows the TNRCC by emergency rule to take any
action necessary to conform the I&M program to the state or federal
clean air programs.
(3) requires the TNRCC by emergency rule to adopt a
decentralized program if it is compatible with federal law or
regulations or guidelines or enforcement policies.
(k) The following are applicable definitions:
(1) "Affected County" is a county included in an I&M
program under applicable law.
(2) "Approved Technology" is a technology certified by
the TNRCC as capable of significantly contributing to the state
implementation plan.
(3) "Fleet vehicle" is a vehicle that is one of 10 or
more owned and operated by a single entity other than a household.
(4) "Vehicle" includes fleet vehicle.
Sec. 382.0732. HYBRID PROGRAM: TRANSITION PERIOD. (a)
Until January 1, 1998, the I&M program must operate according to
this section.
(b) beginning May 2, 1995 the I&M program applies to all
fleet vehicles in Tarrant, Dallas, Harris, Galveston, Brazoria,
Fort Bend, Montgomery, and El Paso counties.
(c) beginning June 1, 1995, the I&M program applies to all
vehicles in Tarrant, Dallas, Harris, Galveston, Brazoria, Fort
Bend, Montgomery, and El Paso counties.
(d) BAR90 technology is acceptable for a decentralized test
and repair until January 1, 1996.
(e) BAR84 technology is acceptable for a decentralized test
and repair facility in El Paso County until January 1, 1996.
(f) The I&M program applies in Jefferson, Orange, Collin, and
Denton counties beginning January 1, 1996.
Sec. 382.0373. VEHICLE EMISSIONS INSPECTION AND MAINTENANCE
ADVISORY PANEL. (a) Establishes a 9 member advisory panel
appointed by the governor, lieutenant governor, and speaker of the
house, one member appointed by each official from the automotive
repair industry, the public, and locally affected governments.
(b) Each advisory panel member serves at the will of the
official which appointed them.
(c) The governor appoints the chair.
(d) The advisory panel meets quarterly and at the call of the
chair.
(e) Requires the advisory panel to review federal I&M
requirements, state agency rules, and I&M programs in other states
and shall inform and advise the TNRCC regarding requirements and
alternative I&M methods.
(f) Entitles an advisory panel member compensation and travel
expenses as provided by the General Appropriations Act, to be made
from existing TNRCC funds.
(g) The advisory panel is not subject to other advisory panel
requirements other than enumerated in this Act.
Sec. 382.0374. VEHICLE REPAIR ASSISTANCE AND SCRAPPAGE
PROGRAM.
(a) Requires the TNRCC, the TxDOT, and the DPS to authorize
a vehicle repair assistance and scrappage program to be implemented
by the commissioners court of an affected county, subject to
appropriate oversight including periodic audits.
(b) Requires the TNRCC to adopt guidelines for counties
implementing a program providing for minimum and maximum amounts of
repair assistance or for the purchase price of a qualified vehicle,
and criteria for determining the eligibility for assistance.
(c) Requires a participating county to maintain mitigation
fees in a separate account, to be used only for implementing and
administering a repair assistance and scrappage program; if the
program is discontinued by a county or the state, then the excess
balance remains in the county to be used only for clean air
programs; the county is not liable to provide funds for the
program.
(d) Allows a participating county to contract with an
appropriate entity or another county to implement a program, and
may pool mitigation fees with other participating counties.
(e) Allows a participating county to appoint a local advisory
panel to advise the county regarding a repair assistance and
scrappage program.
(f) Fleet, governmental, and commercial vehicles are not
eligible for participation in a repair assistance and scrappage
program.
(g) Allows a private commercial or business entity to
participate in a repair assistance and scrappage program in
accordance with TNRCC rules, which shall be adopted to provide for
the following: assignment of emissions reduction credit to an
entity if the entity purchases a vehicle under the scrappage
program, the transferability of such credit, and the use of the
credit against any emissions requirements owned or operated by the
holder of the credit.
(h) Requires that a vehicle purchased under a repair
assistance and scrappage to be destroyed.
(i) "affected county," "fleet vehicle," and "vehicle" have
the meaning previously assigned, and "commercial vehicle" means a
vehicle owned or leased for business or commercial purposes.
SECTION 4. Adds Subsection (a-2) and amends Subsections (i) and
(j) of Section 2, Chapter 88, General Laws, Acts of the 41st
Legislature, 2nd Called Session, 1929 (Article 6675a-2, Vernon's
Texas Civil Statutes) as follows:
(a-2) If the TNRCC, the TxDOT, and the DPS allow an I&M
inspection facility to renew vehicle registrations and perform
safety inspections, then the facility will be allowed to perform
the duties of the county tax assessor collector in registering
vehicles.
(i) Allows payment or proof of payment of a mitigation fee to
be submitted instead of proof that a vehicle has passed a required
emissions test in registering the vehicle, and deletes references
to any waiver allowed for vehicle registration.
(j) Adds language requiring the county tax assessor-collector
to handle mitigation fees and include such in the report already
required, and deletes references to any waiver allowed for vehicle
registration.
SECTION 5. Amends Section 3(j), Chapter 88, General Laws, Acts of
the 41st Legislature, 2nd Called Session, 1929 (Article 6675a-3,
Vernon's Texas Civil Statutes) by providing for proof of a
mitigation fee payment as adequate before issuing a vehicle
registration in place of accepting proof that the vehicle passed an
emissions test.
SECTION 6. Section 141, Uniform Act Regulating Traffic on Highways
(Article 6701d, Vernon's Texas Civil Statutes) is amended by
allowing inspection certificates to be provided at decentralized as
well as centralized testing facilities, and provides for the
uniform inspection fees to be included with other inspection fees;
(a-2) is added as follows: If the TNRCC, the TxDOT, and the DPS
allow an I&M inspection facility to renew vehicle registrations and
perform safety inspections, then the I&M facilities may be allowed
to perform safety inspections.
SECTION 7. Amends Section 4.202(a-1), County Road and Bridge Act
(Article 6702-1, Vernon's Texas Civil Statutes) by requiring a
county tax assessor-collector to collect the mitigation fee or
accept a waiver for proof of compliance with the I&M program;
prohibits the county tax assessor-collector from collecting any
additional fee for the administrative costs of handling the
mitigation fee.
SECTION 8. Repeals the 90 day delay of the I&M approved by the
74th Legislature.
SECTION 9. Requires the TNRCC, TxDOT, and DPS to resume operations
and implementation of the I&M program on May 2, 1995, and requires
the TNRCC to develop emergency rules, and final rules as soon as
practicable.
SECTION 10. Emergency clause and immediate effective date.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute contains the following which are not included in the
original: a purpose clause; a requirement that if a vehicle fails
an emissions test for two consecutive cycles, then the vehicle must
be reinspected at a centralized facility before it can be certified
as passing the test; the substitute requires rental vehicles newer
than 6 years old to be tested or pay a prorated mitigation fee if
the vehicle is registered in an affected county for a partial year;
provides for an advisory panel to be appointed by the governor,
lieutenant governor, and speaker of the house to monitor the I&M
program in Texas and other states as well as the federal
requirements and make recommendations on implementation of the I&M
program; requires the TNRCC by emergency rule to implement the most
convenient method that complies with state and federal law, and if
a decentralized approval is allowed, then emergency rules shall
provide for a decentralized program; provdes that private industry
may participate in a scrappage program, if established, by
purchasing qualified vehicles and receiveing reduction credit at
the private facility; expressly allows I&M facilities to issue
vehicle registrations.
The following are differences between the original and the
substitute: the substitute allows vehicles newer than 6 years to
be exempt from emissions testing if a mitigation fee is paid, but
exemption applies to vehicles newer than 4 years in the original;
the substitute requires any testing technology used to be approved
by the TNRCC as substantially contributing to the goals in the
state implementation plan, but the original expressly names
specific technologies; the substitute prohibits waivers from
passing a test if the owner spends a set amount, but the original
provides for such waivers; the substitute only prohibits an I&M
facility from charging a fee for reinspection after an initial
emissions testing failure of a vehicle, but the original prohibits
any facilities from charging a fee for any retest; the substitute
allows the TNRCC to lease or purchase remote sensing equipment if
it is cost-effective, but the original only states that remote
sensing may be used; the substitute provides for an option of
allowing county governments in affected areas to implement a repair
assistance and scrappage program and allows a local advisory panel
to be formed, but the original requires TNRCC to implement such a
program; the substitute clarifies that BAR90 and BAR84 technology
already in use will be acceptable until January 1, 1996, at which
time any technology used must be approved by TNRCC.
SUMMARY OF COMMITTEE ACTION
HB 3036 was considered by the House Committee on Environmental
Regulation in a public hearing on March 28, 1995. The following
persons testified neutrally on the bill:
Stan Meiburg, representing the U.S. Environmental Protection
Agency, Region 6.
James Davis, representing the U.S. Environmental Protection
Agency.
Eugene J. Tierny, representing himself and the U.S.
Environmental Protection Agency, Office of Mobil Sources.
Phillip A. Lorang, representing the U.S. Environmental
Protection Agency.
John Hall, representing the Texas Natural Resource
Conservation Commission.
John Steib, representing the Texas Natural Resource
Conservation Commission.
Dan Pearson, the Texas Natural Resource Conservation
Commission.
William T. Johnstone, representing the United States Postal
Service.
Wayne Corey, representing the Untied States Postal Service.
William D. Hayden, representing the United States Postal
Service.
Candice Garrett, representing the Texas Natural Resource
Conservation Commission.
The following persons testified in favor of the bill:
Darrell David, representing Tejas Testing Technology.
Bernie Allen, representing Texas Chemical Council (Dow
Chemical).
Mark Daniels, an auto repair service owner, representing
himself.
Rick Sharbrough, auto repair shop owner, representing himself
and the Automotive Service Association.
Glen Young, automotive repair, representing himself and the
Automotive Service Association.
Mary Miksa, Vice President of Government Affairs, representing
herself and Texas Association of Business and Chambers of
Commerce.
Mark Sherrill, an operating Contractor, representing himself
and all other operating contractors.
David Harris, operating contractor, representing himself.
Anthony Jean, operating contractor, representing himself.
Jerry Carter, President and CEO of Marta Technologies, Inc.,
representing himself.
William Watson, representing Environmental Systems Products.
The following persons testified against the bill:
Michael Nowels, Inspection Station Owner, representing himself
and the Texas State Inspection Association.
C.E. "Ed" Martin, auto service owner, representing himself and
the Texas State Inspection Association.
Bill Ligon, representing Texas Service Station Association.
Norma Chavez, representing the Community Board of Businesses
Organizations for Clean Air.
Without objection, HB 3036 was left pending business.
HB 3036 was considered by the House Committee on Environmental
Regulation in a public hearing on April 11, 1995. The committee
considered a complete substitute for the bill. The substitute was
adopted without objection. HB 3036 was reported favorably as
substituted with the recommendation that it do pass and be printed,
by a record vote of seven (7) ayes, two (2) nays, no (0) present
not voting, and no (0) absent.