BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:June 21, 2010         |Bill No:AB                         |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                           Bill No:        AB 2289Author:Eng
                        As Amended:May 28, 2010  Fiscal:   Yes

        
        SUBJECT:  Smog check program: testing: penalties.
        
        SUMMARY:  Revises and recasts elements of the current biennial  
        inspections of vehicle emission control equipment and systems (smog  
        check) program, and establishes new industry operating performance  
        standards and technology upgrades.

        Existing law:
        
       1)Requires, generally, gasoline and diesel-fueled vehicles that are  
          registered in nonattainment areas for ozone or carbon monoxide  
          pollutant emissions to undergo smog check.  Authorizes Department of  
          Consumer Affairs, Bureau of Automotive Repair (BAR) to enforce and  
          administer the smog check program to ensure the reduction of gaseous  
          emissions of hydrocarbons, carbon monoxide, and oxides of nitrogen.   


       2)Requires the smog tests to include, at minimum, loaded mode  
          dynamometer testing in enhanced areas, and 2-speed testing in all  
          other program areas, and a visual or functional check of emission  
          control devices specified by smog technicians.  

       3)Requires the periodic evaluation of the smog check program by BAR and  
          California Air Resources Board (ARB).  Establishes, until January 1,  
          2013, the Inspection and Maintenance Review Committee Inspection and  
          Maintenance Review Committee (IMRC) to review the BAR and ARB joint  
          evaluation plan and to submit a report on the proposed plan to the  
          Legislature.  

       4)Establishes procedures for the issuance of citations for operating  
          violations by underperforming stations and establishes a schedule of  





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          civil penalties for the violations.

       5)Requires BAR to submit recommendations to the Governor and the  
          Legislature for any appropriate mitigation measures, if existing  
          smog check stations are required to make additional investments of  
          more than $10,000 in order to participate in the enhanced program,.

       6)Establishes a citation structure by which BAR may establish penalties  
          for a licensed smog check station, a test-only station contractor,  
          or a fleet owner who has violated the laws.  The citation shall  
          specify the nature of the violation and may assess a civil penalty.

       7)Authorizes BAR to issue a citation to a smog check technician who has  
          violated specified laws or regulations.  The citation shall specify  
          the nature of the violation and provides for progressive penalties  
          as follows:

            a)   First citation  :  The smog check technician shall successfully  
             complete one or more retraining courses prescribed by BAR.

            b)   Second citation  :  The smog check technician shall successfully  
             complete one or more retraining courses prescribed by BAR, and  
             the technician shall perform inspections or repairs under the  
             direction of a technician in good standing.

            c)   Third citation  :  The smog check technician shall successfully  
             complete an advanced retraining course prescribed by BAR and  
             shall perform no inspection or repair until completion.

            d)   Fourth citation  :  The smog check technician's qualification  
             may be permanently revoked.

       8)Establishes a fine structure of various amounts for specified  
          violations of the law, up to a maximum of $2,500.

       9)Provides that any person who obtains or attempts to obtain a repair  
          cost waiver, or economic hardship extension by falsifying  
          information shall be subject to a civil penalty of not less than  
          $150 and not more than $1,000,

        This bill:

       1)States legislative intent that the BAR work with the California  
          Community Colleges and other training institutions to identify  
          funding mechanisms that encourage the development of innovative  
          programs that respond to industry demands for automotive  





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          technicians.

       2)Establishes January 1, 2013, as the date for which new testing  
          procedures are authorized for the test-only smog facilities.   
          Authorizes BAR, in consultation with the ARB, to also select other  
          vehicles for testing in order to meet federal emission reduction  
          performance standards.

       3)Authorizes an alternative smog check test method and corresponding  
          test equipment for the year 2000, and newer motor vehicles equipped  
          with second generation on-board diagnostic systems (OBD II).

       4)Authorizes BAR to establish inspection-based performance standards  
          and requires vehicles that cause most of the pollution or directed  
          vehicles, as specified, to have smog checks performed by stations  
          that meet high performance standards.  

       5)For test-only stations, requires BAR to automatically suspend  
          operations when the test-only station fails the inspection-based  
          performance standards.  Establishes the following suspension and  
          appeal procedures:

           a)   Requires BAR to provide the test-only station with notice,  
             written or electronic, of any suspension within 24 hours of the  
             suspension.

           b)   A test-only station whose certification has been suspended may  
             apply in writing to BAR within 30 days after the date of  
             suspension for a hearing to contest the evidence supporting the  
             suspension.  

           c)   BAR shall set the matter for a hearing within 30 days of  
             receipt of the written request.

       6)Provides that a test-only station not meeting the performance  
          standards may continue to issue certificates of compliance and  
          noncompliance for other vehicles that are not directed or high  
          polluting vehicles.

       7)Establishes that the criteria for the inspection-based performance  
          standards is the same for all smog check facilities.  If deemed  
          feasible by BAR, establishes that performance standards also apply  
          to smog check technicians.  Requires BAR, if the performance  
          standards are established, to provide to smog check stations and  
          technicians, no later than January 1, 2012, a preliminary report on  
          their performance.





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       8)Prohibits a test-only facility from referring a vehicle owner to a  
          specific vehicle repair facility in which the owner of the test-only  
          facility has also a financial interest in the vehicle repair  
          facility.

       9)Revises the existing procedures for the provision of referees by BAR.  
           Requires referees to make inspections of specially constructed  
          vehicles, as defined.  Authorizes referees to promote automotive  
          training through community colleges and other training institutions  
          certified by BAR.  Authorizes referees to charge a fee sufficient to  
          cover the costs of providing referee services, as specified.

       10)Requires an annual evaluation of the performance of the smog check  
          program by BAR, in cooperation with the ARB, using data collected  
          from a roadside audit program.  The required annual report,  
          beginning July 1, 2011, is to include, at a minimum, the following:

           a)   An independent analysis done on the report's evaluation  
             methods, findings, and conclusions.

           b)   The percentage of vehicles that initially passed a smog check  
             inspection and then failed a subsequent inspection.

           c)   The percentage of vehicles that initially failed a smog check  
             inspection and then failed a subsequent inspection.

           d)   An estimate of excessive emissions resulting from vehicles  
             identified in (b) and (c), above.

           e)   A best-efforts explanation regarding the reasons vehicles  
             inappropriately failed or passed an inspection.

           f)   Recommended changes to the smog check program.  Requires  
             authorization by the Legislature, through enactment of statute,  
             prior to implementing any recommendations on contracting out the  
             management of smog check stations.

           g)   A comparison to the findings of the report "Evaluation of the  
             California Smog Check Program Using Random Roadside Data" dated  
             March 12, 2009.

       11)Authorizes BAR to enter into a contract for the supply or service of  
          certified equipment with the manufacturers and service providers.   
          Requires BAR to provide to smog check stations the option to  
          purchase the equipment or service directly from the contractor or  





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          any other provider of certified equipment or service.

       12)Prohibits BAR from requiring smog check stations to use the new  
          certified equipment earlier than January 1, 2013.

       13)Clarifies, should existing smog check station equipment upgrades  
          cost more than $10,000, that BAR would be required to submit  
          recommendations to the Governor and the Legislature for any  
          appropriate mitigation measures, including and not limited to  
          subsidies, equipment leases, grants, or loans.  Extends the  
          provisions also to certified training institutions.

       14)Repeals the existing fine and penalty structure and adopts a more  
          stringent fine and penalty structure to respond to stations and  
          technicians that perform improper inspections.  Establishes a  
          minimum fine penalty of $100, but not more than $5,000, based upon  
          various factors of consideration by BAR.  Increases the minimum  
          daily civil penalty to not more than $5,000 per day.  Requires, in  
          assessing civil penalties, that due consideration be provided to  
          certain factors as specified.

       15)Increases the penalties to customers who obtain or attempt to obtain  
          a repair cost waiver, or economic hardship extension, by falsifying  
          information to not more than $5,000. 

       16) Establishes a new civil penalty for any person who obtains or  
          attempts to obtain a smog certificate by falsifying information at  
          not more than $5,000.  


        FISCAL EFFECT:  The Assembly Appropriations Committee analysis, dated  
        May 21, 2010, indicates:  (1)  Annual costs to DCA, ranging from  
        $350,000 to $450,000, to develop new Smog Check standards, certify  
        test stations that meet higher standards, enforce compliance, and  
        collect, analyze and publish data (VIRF); (2)  Minor, absorbable costs  
        to ARB to consult with DCA.

        COMMENTS:
        
        1.Purpose.  This bill is sponsored by the Department of Consumer  
          Affairs'  Bureau of Automotive Repair  (BAR) and the  Air Resources  
          Board  (ARB) who believes the bill will achieve cleaner, healthier  
          air by using better technology to diagnose and address vehicle  
          emissions problems; through monitoring of station performance,  
          directing vehicles to higher performing stations for proper repair,  
          and encouraging better and innovative training for technicians.  The  





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          Sponsors state that cleaner air saves lives, reduces adverse effects  
          on children and the elderly as well as particular populations, and  
          reduces time lost and money spent on associated medical treatment  
          and medication.  The Sponsors believe the bill will save consumers  
          money, save time, and provide greater air quality from the state's  
          smog check program, which is administered by BAR.  

        The Author contends that this bill is designed to improve smog check  
          in reducing pollution through the use of new technologies (OBD II)  
          that provide considerable time and cost savings to consumers, while  
          at the same time improving consumer protections by adopting more  
          stringent fine structures to respond to stations and technicians  
          that perform improper and incomplete inspections.  While making the  
          transition to new equipment and reducing the need for the old  
          equipment, the Author's office wants to provide clear direction to  
          BAR/ARB and especially to the regulated smog stations regarding the  
          new scope of the law as envisioned.  With program implementation  
          changes clearly delineated by this bill, smog stations will be  
          better able to make informed business decisions along with the  
          ability of BAR personnel to better manage, investigate, and enforce  
          the program.  

        2.Background.
        
            a)   Statewide Smog Check Program  .  In 1982, California became the  
             20th state in the nation to adopt a vehicle inspection and  
             maintenance (smog check) program.  Unlike the other states, BAR  
             administers a "decentralized" program, which means that smog  
             check stations are privately owned and operated.  In 2008/2009,  
             BAR licensed approximately 8,400 smog check stations (although  
             only 7,300 are considered active stations in the 1st quarter of  
             2009).  During this time, BAR also licensed almost 14,000 smog  
             check technicians.

            b)   On-Board Diagnostics (OBD II)  .  OBD II is the second  
             generation of on-board self-diagnostic equipment requirements for  
             California vehicles.  OBD II does not test exhaust; but instead,  
             this system monitors multiple systems in the vehicle and checks a  
             vehicle's computer-controlled emissions systems and components to  
             ensure that no malfunction exists that would cause an increase in  
             emissions.  OBD II is installed on most 1996 and newer passenger  
             cars and light duty trucks.  The electronic component allows smog  
             technicians to plug into the vehicle's computer and diagnose  
             in-use driving vehicle emission performance.

           According to IMRC, with the exception of California and Colorado,  





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             all states with federally- mandated smog check programs have  
             discontinued tailpipe, visual, and functional testing for newer  
             model-year vehicles, because they were not cost effective.  The  
             U.S. Environmental Protection Agency (USEPA) has supported  
             OBD-only testing and testified before the IMRC last year that it  
             would agree with this approach in California.  The primary  
             advantages of OBD II-only testing are a lower cost to the  
             consumer and a more effective testing procedure.

           The  California Automotive Business Coalition  , writing in opposition  
             to this bill, indicates that "the vast majority of vehicles in  
             the State of California would instead only be required to be  
             tested using only the on-board diagnostic (OBD) equipment of the  
             vehicle.  The shift of vehicles away from tailpipe testing  
             requirements will erode the ability of existing businesses to  
             generate future income on their investments; and could also  
             deteriorate our state's air quality.  At a minimum, there is  
             significant dispute about the accuracy of OBD systems to properly  
             detect excess emissions."

           Additionally, the  Automotive Service Councils of California   
             (ASCCA), also in opposition to this bill, contends that "it may  
             be possible for 'gross polluting' vehicles to pass smog check  
             under AB 2289, since the tailpipe emissions testing would not be  
             required for vehicles 1996 or newer.  Although OBD II systems  
             have steadily improved over the years, concerns still remain with  
             faulty OBD systems in late 1990's and early 2000 vehicles passing  
             the OBD II portion of the test but still failing the tailpipe  
             emissions test.  Furthermore, oxides of nitrogen, or NOx is a key  
             contributor to air pollution and is currently measured through  
             the tailpipe emissions test.  ASCCA recommends that OBD II-only  
             testing be performed on 2000 model year and newer vehicles."   
             This bill follows that recommendation and provides BAR the  
             authority to employ the OBD II-only testing option on model year  
             2000 and newer vehicles.

           c)   Impact Upon Remaining Fleet.  According to ARB, eliminating  
             tailpipe testing for the newer fleet would result in changes to  
             the current smog check equipment and practices within the  
             industry.  Even in 2008, the newer fleet (i.e., OBD II-equipped  
             vehicles) made up over 66% of all vehicles inspected, and the  
             percentage is growing every year.  The number of older cars in  
             the fleet that need a tailpipe test, on the other hand, will  
             continue to diminish over time.  At some point, tailpipe testing  
             volumes may be reduced to the point that it is impractical or not  
             cost effective to have tailpipe testing equipment at every smog  





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             check station, and other infrastructure options would need to be  
             considered (e.g., tailpipe testing at a subset of stations,  
             allowing individual stations to opt in or out of tailpipe testing  
             from a business point of view, etc.). Maintaining a tailpipe  
             testing infrastructure, however, is a vital element to the smog  
             check program.  As the test-only stations currently handle  
             approximately 60% of smog inspections, the impact upon that  
             segment of the smog check industry could result in the majority  
             of those stations to be economically unviable, according to the  
             California Emissions Testing Industries.  

        3.Sierra Research Report (March 2009).  ARB, in cooperation with BAR,  
          hired Sierra Research, Inc. to conduct an independent research and  
          analysis of the smog check program using data collected from  
          roadside inspections conducted in 2003-2006.  It is believed that  
          the study's findings spurred the need for smog program changes, thus  
          leading to the introduction of this bill.  The study compared  
          roadside inspection results for 1976-95 (pre-OBD II) model year  
          vehicles to the smog check inspection results reported by smog check  
          stations for these same vehicles.  Findings from the study included:

               Of the 1976-95 vehicles sampled, 19% of the vehicles initially  
             passed a tailpipe inspection at a licensed smog check station,  
             but failed a roadside audit inspection within a year. 

               The data also showed that 49% of the vehicles that failed a  
             roadside audit inspection had failed, and then subsequently  
             passed, a tailpipe inspection at a smog check station within the  
             past year. 

          To better address the extent to which improper and/or falsified test  
          results may be factors in the smog check program, the report  
          recommended corrective steps, some of which are incorporated in this  
          bill.

        1.Smog Check Equipment Change:  Transitioning from BAR-97 to BAR-2012.  
           Approximately 10,000,000 smog check inspections are performed on  
          motor vehicles each year in California.  Smog check inspections are  
          performed by approximately 7,300 licensed smog check stations  
          located throughout California.  Smog check inspections are currently  
          performed using a BAR-97 Emissions Inspection System (EIS).  The  
          BAR-97 EIS equipment is required in all smog check stations located  
          in enhanced areas, or California's smoggiest regions.  The BAR-97  
          EIS tests vehicles under simulated driving conditions to detect  
          oxides of nitrogen, hydrocarbons, and carbon monoxide emissions.   
          These are the major chemical components of smog.  The equipment  





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          consists of a 5-gas analyzer, additional hardware, software, a fuel  
          cap tester, and a dynamometer with safety restraints.  The most  
          distinctive component of the equipment is the dynamometer, a  
          treadmill-like device that simulates driving conditions.  Originally  
          certified by BAR in 1997/1998, the state's current BAR-97 EIS units  
          are more than 13 years old.

        The BAR-2012 EIS Project is an information technology project to  
          procure the development of standardized state-owned software and  
          integrate that software with various equipment components of the  
          BAR-2012 EIS.  According to BAR, the current BAR-97 EIS relies on  
          older technology that cannot be easily updated to respond to needed  
          smog check program improvements.  The BAR-2012 EIS will be flexible,  
          scalable, and responsive to the demands for program change and allow  
          increased program effectiveness and efficiency.  BAR anticipates  
          awarding a contract to develop the new equipment on September 2010.   
          Furthermore, they expect a transition from BAR-97 to BAR 2012 at the  
          end of 2012.  Accordingly, to give business some certainty in making  
          informed business decisions, this bill prohibits BAR from requiring  
          the use of the new equipment prior to January 1, 2013.  Further,  
          under current law, if equipment purchases are mandated and exceed  
          $10,000 in costs, BAR is required to submit recommendations to the  
          Governor and the Legislature for any appropriate mitigation  
          measures.  This bill expands those mitigation measures and also  
          includes cost considerations for certified training institutions.

        2.Enforcement Issues:  Increased Fines and Penalties.  According to  
          IMRC, problems identified in the Sierra Research report indicate  
          that current fines for conducting improper smog check inspections  
          fail to change technician's behavior.  "When technicians are issued  
          a citation under current provisions of the Health and Safety Code,  
          they are only required to undergo additional training.   They   pay   no   
           monetary   fine  .  Unfortunately, this training appears to have little  
          impact since almost 50% of the inspections conducted on vehicles  
          that originally failed appear to have been performed improperly.   
          Further, although BAR's enforcement division identifies stations and  
          technicians that fail to perform in this area, the penalties, as  
          specified in statute, are too small to change their poor behavior.   
          Therefore, BAR needs a statutory change that will increase penalties  
          in order to change poor and fraudulent behavior."  This bill  
          increases and expands existing fines and penalties for violations  
          committed by smog station owners, technicians, and customers.  

        3.Annual Report Required.  On an on-going basis, BAR conducts random  
          roadside audits (smog tests) on vehicles.  The results from these  
          inspections are used to evaluate the performance of the smog check  





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          program in achieving Clean Air Act requirements.  This bill requires  
          that the results of these audits be evaluated and reported annually,  
          beginning July 1, 2011.  This bill also requires approval by the  
          Legislature, through enactment of statute, prior to the  
                                                   implementation of any report recommendation pertaining to  
          contracting out the management of the smog check program.

        4.Funding for Technician Training Programs.  Currently, the California  
          community colleges and private institutions provide smog check  
          training for technicians.  The community colleges also provide the  
          basic source of referees to mediate smog check compliance issues.   
          This bill establishes intent language that directs BAR to work with  
          the colleges to identify funding options for the development of  
          innovative vehicle technician training programs.  

        5.Arguments in Support.  The  Air Resources Board  (ARB) and the  
           Department of Consumer Affairs, Bureau of Automotive Repair  (BAR) in  
          sponsoring the bill writes that when implemented, AB 2289 has the  
          capability to remove approximately 70 tons of pollution from the air  
          daily, the equivalent of taking 800,000 cars off the road every day.  
           ARB indicates that a study by Sierra Research shows that 49% of  
          1996 model vehicles failed roadside audits after having received a  
          passing smog check inspection.  These vehicles comprise 25% of the  
          California fleet, and are responsible for an estimated 70 tons of  
          harmful emissions per day.  By directing BAR and ARB to rank the  
          performance of smog check stations, and vehicles most likely to need  
          repairs will be referred the high performing stations.  The bill  
          streamlines the enforcement process for disciplining stations with  
          violations, and improves consumer convenience by authorizing the use  
          of on-board diagnostic systems instead of dynamometer for smog  
          checks.  Thirty one other states already conduct inspections based  
          on on-board diagnostics, which takes half the time and costs about  
          half as much as California consumers typically pay.  The Sponsors  
          state that these streamlined procedures could apply to 75% of the  
          California passenger vehicle fleet (model 2000 and newer vehicles). 

        6.Arguments in Opposition.  The  California Emission Testing Industries  
          Association  (CETIA) representing test-only vehicle emissions  
          inspection stations in California opposes the bill, arguing that the  
          bill will cause the loss of 2,200 small businesses and the loss of  
          5,400 jobs with an annual economic impact of $216,000,000.  CETIA  
          suggests that the information and data in the recent Sierra Research  
          study has been mischaracterized to place program failure at the feet  
          of the industry, but a casual read of the study would clearly place  
          a large measure, if not all, of the programmatic problems at the  
          feet of the responsible regulatory agencies.  





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        CETIA states that without amendments, AB 2289 would have catastrophic  
          economic impact on the Test-Only Industry and its employees.   
          "Test-Only Stations were created by the Legislature, with both  
          privileges and restrictions in market, to provide the most critical  
          tenant of the Smog Check Program; the separation of the Test from  
          the Repair.  Test Only Station Owners have made a substantial  
          business investment in equipment and facilities, established  
          business models within the criteria of legislation.  AB 2289 will  
          end the core requirement the test be separate from the repair  
          thereby returning to the previous smog check station practice that  
          enables the testing facility to also repair a failing vehicle." 

         CETIA recommends the following amendments to the bill  :  (1) Effective  
          January 1, 2011, authorize test-only stations facilities to hold  
          ownership of both test and repair and gold shield stations.  (2)  
          Remove language to provide BAR with authority to shut down a station  
          after 24-hour notice without an administrative hearing.  For  
          test-only station owners, the immediate suspension of privileges in  
          market would have immediate and disastrous economic impact. CETIA  
          believes that as written, this provision has the potential to cause  
          the loss of businesses whether they have violated state law or not.   
          (3) Include language to protect the directed vehicle program for  
          test-only and gold shield stations.  Without the directed vehicle  
          program, test only stations would not be economically viable and  
          able to participate in the new program.  Additionally, by removing  
          the incentive for test and repair stations to participate in the  
          gold shield program, participation in that program would erode,  
          negatively impacting low-income Californians.  BAR shall not expand  
          the directed vehicle program to include Test & Repair stations  
          without legislative approval.  (4)  Include a mutual settlement  
          agreement for resolving enforcement violation citations.  CETIA  
          states that mutual settlement agreements, are implemented by most of  
          the Air Districts, and have proven effective and reduced enforcement  
          costs by 20% and shortened the time line for disciplinary actions.   
          (5) Require annual testing for all vehicles model year 1995 and  
          older.  It is these vehicles that contribute 75% of California's  
          mobile source emissions.

            Clean Air Performance Professionals  (CAPP) opposes the bill and  
           requests the bill be amended to include an in-field vehicle repair  
           audit program.  CAPP believes an in-field vehicle repair audit  
           program would create maximum vehicle owner satisfaction, and  
           provide a mechanism for continuous improvements in how vehicles are  
           repaired so that customers will be better satisfied with repairs  
           made under the smog check program.  CAPP says that presently fear  





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           of loss of license or legal sanctions is a barrier to improving the  
           quality of vehicle repairs.  CAPP argues that such a program would  
           improve quality and productivity in vehicle repairs and result in  
           emission reductions, as mandated under California's emissions  
           inspection and maintenance program.

         NOTE :  Double-referral to Transportation and Housing Committee  
        (second.)  Any amendments to this bill taken in BP&ED should be made  
        in T&H. 


        SUPPORT AND OPPOSITION:
        
         Support:  

        Department of Consumer Affairs, Bureau of Automotive Repair  
          (Sponsor)
        Air Resources Board (Sponsor)
        American Lung Association in California  
        Bay Area Air Quality Management District
        Breathe California  
        California Air Pollution Control Officers
        California Council for Environmental and Economic Balance  
        Clean Power Campaign  
        Consumer Federation of California
        Environmental Defense Fund
        National Parks Conservation Association  
        Natural Resources Defense Council  
        Planning and Conservation League  
        Sierra Club California
        South Coast Air Quality Management District
        Union of Concerned Scientists


         Opposition:  

        Automotive Service Councils of California
        California Automotive Business Coalition
        California Emissions Testing Industries
        Clean Air Performance Professionals  



        Consultant:G. V. Ayers







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