BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: ab 2289
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: eng
VERSION: 6/23/10
Analysis by: Jennifer Gress FISCAL: yes
Hearing date: July 1, 2010
SUBJECT:
Smog check program
DESCRIPTION:
This bill makes several changes to the smog check program,
including requiring that vehicles be inspected using the
vehicle's onboard diagnostic equipment (OBD II, for second
generation) and establishing performance standards that
test-only and Gold Shield stations must meet in order to be
eligible to issue certificates of compliance or noncompliance to
high-emitting vehicles directed to it.
ANALYSIS:
To meet federal air quality standards, existing law requires
California-registered, gasoline-powered vehicles and certain
diesel-powered vehicles to undergo biennial smog inspections to
measure motor vehicle-related pollutants. New vehicles six
model years old and newer, vehicles with a pre-1976 model year,
electric vehicles, motorcycles, and large commercial vehicles
are exempt from the smog check program.
Upon initial registration and upon a change of ownership and
registration of a vehicle, the vehicle owner must submit to the
Department of Motor Vehicles (DMV) a valid certificate of
compliance indicating that the vehicle has passed its smog
inspection. If a vehicle fails any component of a smog
inspection, the vehicle owner must, with some exceptions, repair
the vehicle and pass a subsequent smog inspection before being
able to register or renew the registration of the vehicle.
The Bureau of Automotive Repair (BAR) is charged with
implementing the smog check program. Existing law establishes
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three types of smog check stations that BAR licenses to test,
repair, and provide other services to vehicles subject to smog
inspections.
The first type of station is a test-only station, which tests,
but does not repair, vehicles. Each year, BAR directs a certain
percentage of vehicles that it deems to be "high emitters"
(currently about 42 percent) to test-only stations. Directing
vehicles to this type of station was instituted in 1995 with the
idea that, because test-only stations are not authorized to
perform repairs, they do not have a vested interested in whether
or not a vehicle fails its smog inspection and thus are more
likely to conduct the inspection in accordance with established
procedures.
The second type of station is a test and repair station, which
is any mechanic or garage that is licensed by BAR to perform
tests and make repairs. BAR does not direct vehicles to these
stations. Any consumer whose vehicle is not directed to a
test-only station may take their vehicle to any licensed smog
station, including a test and repair station.
A test and repair station may apply to BAR for certification as
a "Gold Shield" station, provided the station meets certain
performance standards established by BAR. Gold Shield stations
may also test directed vehicles and make repairs that are funded
through BAR's Consumer Assistance Program.
The third type of smog check station is a referee facility.
Referees inspect vehicles that require special testing
procedures because, for example, the vehicle does not contain
original emission control equipment. Referees also issue
repair cost waivers, hardship extensions, and certificates of
compliance or noncompliance.
A smog inspection generally involves four components: a
measurement of exhaust emissions (i.e., tailpipe test), an
evaporative emissions test, a smoke test, and a visual and
functional inspection. Current law prescribes the testing
procedures that must be used to conduct the tailpipe test but is
less prescriptive for the evaporative emissions test, the smoke
test, and the visual and functional inspection.
Existing law permits BAR to issue citations to any licensed smog
check station, test-only station contractor, or fleet owner who
conducts testing and repair of its own vehicles for a violation
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of laws or regulations governing the smog check program. It
also enumerates civil penalties that may apply to specific
violations, other enforcement actions that BAR may take (e.g.,
requiring participation in a retraining course) against the
violator, and the process that a violator may undertake to
contest the citation.
This bill makes several changes to the smog check program, but
the two most significant policy changes include requiring that
vehicles be inspected using the vehicle's OBD II system and
establishing performance standards that test-only and Gold
Shield stations must meet in order to be eligible to issue
certificates of compliance or noncompliance to high-emitting
vehicles directed to them. To implement these policies, as well
as other changes intended to reduce the potential for fraud, the
bill makes numerous changes to current law, as described in
detail below.
Onboard Diagnostic Testing (OBD II)
In requiring OBD II testing, this bill does the following:
Requires BAR to implement testing using OBD II, in lieu of
loaded mode dynamometer or two-speed idle testing, beginning
no earlier than January 1, 2013.
Provides that vehicles not equipped with OBD II and vehicles
with emission problems that may not be adequately detected by
the vehicle's OBD II system may be directed to test-only
stations.
Provides that a vehicle will not pass its smog inspection if
the vehicle is identified as having an excessive variance from
computer data for that vehicle, mismatched information, or
other regularities. Vehicles that fail for this reason shall
be directed to BAR to determine whether an inadvertent error
caused the regularity or the vehicle otherwise meets smog
check requirements.
Performance standards .
To establish performance standards that stations must meet, this
bill:
Requires BAR to establish performance standards based on
inspection data derived from the station that each test-only
stations and Gold Shield stations must meet in order to be
eligible to issue certificates of compliance and noncompliance
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for directed vehicles.
Establishes a process by which BAR provides notice to a
test-only station who is not meeting the performance
standards, as well as a process by which a test-only station
may request a hearing to contest the suspension.
Specifically, the bill requires BAR to provide a test-only
station with a written or electronic notice at least 48 hours
prior to the suspension indicating the grounds for suspension
and the process for requesting a hearing to contest the
suspension. A station must request a hearing within five days
of receipt of the notice. Such notice will stay the
suspension until a final decision has been made. BAR must
conduct the hearing within 10 days from receipt of the hearing
request and issue a written decision within 10 days of the
hearing. If the station owner is dissatisfied with the
outcome of the hearing, he or she may, within 30 days of the
decision, request an administrative review before an
administrative law judge.
Authorizes BAR to adopt, by regulation, a process by which
vehicles that present prohibitive or unusual inspection
circumstances are inspected by referees.
Authorizes BAR to apply performance standards to smog check
technicians, in addition to stations.
Requires BAR, by January 1, 2012, to provide to all licensed
smog check stations and technicians, if technicians are
included, a preliminary report on the station's and the
technician's performance meeting the performance standards.
The report shall include an assessment of the station's and
technician's potential eligibility to issue certificates of
compliance and noncompliance and the criteria used in making
that assessment.
Equipment
The bill makes several changes regarding the equipment that smog
check stations may use. Specifically, the bill:
Authorizes BAR to revises its standards for certifying and
decertifying test equipment.
Prohibits BAR from requiring smog check stations to use
equipment that meets revised standards before January 1, 2013.
Prior to January 1, 2013, smog check stations shall continue
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to use equipment meeting the specifications established by BAR
as of January 1, 1996. If the revised standards result in
station owners having to invest more than $10,000 in new
equipment, BAR must submit recommendations to the Legislature
and the Governor to mitigate this impact.
Adds to the list of components that a test analyzer system may
have, a real-time computer data program that would prevent a
certificate of compliance from being issued if a vehicle is
identified as having an excessive variance from computer data
for that vehicle, mismatched information, or other
irregularities.
Allows BAR, rather than smog check stations, to enter into a
contract for the supply or service of testing equipment or
software. BAR must offer smog check stations the option to
purchase the equipment or service directly from the contractor
or any other provider of certified equipment or service.
Enforcement measures
The bill makes several changes to the enforcement procedures
that BAR must follow when issuing a citation for violations of
the smog check program. Specifically, the bill:
Deletes sections of law articulating specific civil penalties
for specific violations and replaces it with a range of
administrative fines, from $100 to $5,000, that BAR may impose
for a violation. BAR may determine the fine to be imposed
within the specified range on a case-by-base basis but must
consider the following criteria:
o The nature, gravity, severity, and seriousness of the
violation.
o The persistence of the violation.
o The good faith or willfulness of the violator.
o The history of previous violations by that violator,
including the commission of numerous and repeated
violations.
o The failure to perform work for which money was
received.
o The making of any false or misleading statement in order
to induce a person to authorize repair work or pay money.
o The failure to make restitution to consumers affected by
the violation.
o The extent to which the violator has mitigated or
attempted to mitigate any damage or injury caused by the
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violation.
o The degree of incompetence or negligence in the
performance of duties and responsibilities.
o The purposes and goals of the smog check program and
"other matters as may be appropriate."
Permits BAR to issue an order of abatement, in addition to a
fine, that specifies conditions the violator must meet or risk
having his or her license suspended or revoked.
Articulates the process by which an alleged violator may
contest the citation, as follows:
o A person contesting a citation must, within 30 days of
receiving the citation, request, in writing, either an
informal citation conference or an administrative hearing.
o If the person chooses an informal citation conference,
BAR has 60 days to hold the conference and may affirm,
modify, or dismiss the citation in writing within 10 days
following the conference.
o If the person is dissatisfied with the outcome of the
conference, he or she may request an administrative hearing
within 30 days of receiving the modified or affirmed
citation following the informal citation conference.
Increases the maximum civil penalty, from $1,000 to $5,000,
that BAR may impose on a person who obtains or attempts to
obtain a repair cost waiver or economic hardship extension by
falsifying information.
Establishes a maximum civil penalty of $5,000 that BAR may
impose on a person who obtains or attempts to obtain a
certificate of compliance by falsifying information.
Reporting
The bill requires BAR to prepare an annual report beginning no
later than July 1, 2011. The report, which shall be made
available to the public, shall include the following components:
An independent validation of the evaluation methods, findings,
and conclusions presented in the report.
The percentage of vehicles that initially passed a smog check
inspection and then failed a subsequent inspection.
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The percentage of vehicles that initially failed a smog check
inspection and then failed a subsequent inspection.
An estimate of excessive emissions resulting from vehicles
that initially passed a smog check inspection and then failed
a subsequent inspection and from vehicles that initially
failed their inspection and then failed a subsequent
inspection.
A best-efforts explanation regarding the reasons why those
vehicles inappropriately failed or passed an inspection.
Recommended changes to the smog check program to reduce to a
minimum the excess emissions identified above. In developing
the recommended changes, the bill requires BAR and ARB to
undertake a thorough evaluation of the best practices of other
state smog check inspection programs and to include how best
practices from other states can be incorporated into
California's program.
A comparison to the findings of the report "Evaluation of the
California Smog Check Program Using Random Roadside Data"
dated March 12, 2009.
Other changes
This bill makes several other smaller changes to facilitate
implementation of the smog check program and conforms the law
with current practice. The bill authorizes referees, for
example, to charge a fee sufficient to cover the costs of
providing referee services. BAR will establish the requirements
applicable to the fee, including the amount, by regulation.
Fees collected by a contracted referee must be deposited into a
separate trust account and fees collected by BAR for referee
services must be deposited into the Vehicle Inspection and
Repair Fund. In addition, many provisions of law related to the
placement of referees at test-only stations are deleted because,
in practice, referees are not placed within test-only stations.
Funding for vehicle technician training programs
This bill declares that it is the Legislature's intent that BAR
work with the community colleges in California to identify
funding to develop training programs for motor vehicle
technicians that focus on reducing air pollution from vehicles
needing repair and to increase the number and skill level of
such technicians.
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COMMENTS:
1.Purpose . According to the author, the purpose of this bill
is to improve the smog check program through the use of new
technologies that provide considerable time and cost savings
to consumers. In addition, this measure will improve consumer
protections by adopting more stringent fine structures to
respond to stations and technicians that perform improper and
incomplete inspections.
Several years ago, the Air Resources Board (ARB), in
cooperation with BAR, contracted with Sierra Research, Inc. to
examine the effectiveness of the smog check program using data
collected for 1976-1995 model year vehicles during roadside
test from 2000-2002 and again from 2003-2006 and compared them
to results from those vehicles' biennial smog inspections.
The research found that 19 percent of the vehicles sampled
initially passed a tailpipe inspection at a licensed smog
check station but failed a roadside inspection within one
year. The data also showed that 49 percent of the vehicles
that failed a roadside inspection had failed, and then
subsequently passed, a tailpipe inspection within the past
year. In explaining the high re-fail rate, the report
concluded that improper testing and falsified test results
(i.e., fraud) appeared to be the primary contributors.
The requirements to implement OBD II testing, to establish
performance standards, and to strengthen enforcement
procedures are intended to reduce fraud while also providing
convenience to consumers.
2.OBD II . OBD II refers to the second generation of onboard
diagnostic equipment, which monitors the performance of the
emission control equipment to ensure it is operating properly.
When an OBD II system detects a problem with the emission
control system, a dashboard light is illuminated indicating
"Check Engine" or "Service Engine Soon." A corresponding
diagnostic trouble code is stored in the computer's memory
documenting which emission control component is experiencing
the problem and under which conditions the problem is
occurring. The repair technician can retrieve the diagnostic
trouble code information from the vehicle's computer using a
"scan tool." In this way, a properly trained technician can
more accurately diagnose and repair problems. OBD II is
standard on all 2000 and newer model-year vehicles.
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According to ARB, a co-sponsor of the bill, testing vehicles
using the vehicles' OBD system was approved in May 2001 by the
United States Environmental Protection Agency and is in use in
32 states, 26 of which have OBD II-only testing procedures and
four of which use a combination of OBD II testing and tailpipe
testing.
OBD testing is not new in California. It is currently part of
the visual and functional component of the smog inspection
such that if a "check engine" light is illuminated, the
vehicle will automatically fail its smog test. What would
change under the bill is the elimination of tailpipe testing.
There are several benefits of OBD II-only testing, including
reducing the time and cost of the smog inspection. An OBD II
test is estimated to take about five minutes and, while BAR
does not set the rates that smog stations may charge
consumers, ARB and BAR anticipate that OBD II-only testing
will reduce the cost of inspections from an average of about
$48 today to around $20.
While OBD testing provides benefits to consumers, it raises
some important questions regarding the extent to which such
testing will lead to greater emission reductions from the smog
check program and the types and costs of repairs that
consumers will be required to make as the vehicle ages.
OBD testing assumes that the malfunction of emission control
equipment detected by the OBD system is leading to higher
emissions, though the system does not measure actual
emissions.
What emissions standard will vehicles with OBD II be
expected to achieve in the long run? What percentage of
vehicles whose check engine light is illuminated are
emitting pollutants in excess of or less than the emission
levels (i.e., cut points) that have, or would have been,
established for that vehicle to pass its tailpipe test?
Will OBD II result in a more or less stringent emissions
test?
Current law requires BAR to establish cut points for a
vehicle that allow higher emissions over the life of the
vehicle under the assumption that emission control
equipment will naturally deteriorate as the vehicle ages.
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With OBD, the service engine light will illuminate any time
emission control equipment fails. As vehicles age, will
consumers have to replace emission control equipment so
that the vehicle continues to run as cleanly in, say, ten
years as it did when it was brand new? Is this a
reasonable expectation for consumers?
Furthermore, as vehicles age, the sensors monitoring the
emission control equipment themselves may deteriorate,
causing the check engine light to illuminate even if the
equipment being monitored is performing well. In other
words, the vehicle could fail, even if it would have met
the tailpipe standards. These sensors could cost $500. Is
it reasonable to expect consumers to spend $500 to repair a
vehicle that may only be worth $1,500?
ARB argues that the emissions of today's new vehicles are
extremely low and that OBD II testing provides a more
sensitive test than that which is afforded by the traditional
tailpipe tests. It also argues that the emission control
equipment is durable and will last many years.
Nevertheless, to address these questions, the committee may
wish to consider the following two amendments:
Permit BAR to require tailpipe testing for vehicles if
evidence suggests these vehicles are failing when they
would otherwise pass a tailpipe test.
Require BAR to include in its annual reports an analysis
comparing the pass and fail rates for vehicles subject to
both OBD II and tailpipe testing.
3.Administrative fines . The bill eliminates the fine amounts in
statute and instead simply authorizes BAR to impose fines
within a range of $100 to $5,000. To ensure consistency in
the assessment of fines, the committee may to consider an
amendment to require BAR to establish, via regulation,
specific fine amounts or a more specific framework for
determining fine amounts.
4.Technical amendments . The author will propose to make several
technical amendments. At the time this analysis was prepared,
the author's staff and committee staff were still reviewing
the proposed changes.
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Assembly Votes:
Floor: 48-27
Appr: 12-5
Trans: 8-3
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
June 30, 2010)
SUPPORT: California Air Resources Board (ARB) (co-sponsor)
Bureau of Automotive Repair (BAR) (co-sponsor)
American Lung Association
Bay Area Air Quality Management District
Breathe California
California Air Pollution Control Officers
Associations
California Council for Environmental and Economic
Balance
California Emissions Testing Industries
Clean Power Campaign
Consumer Federation of California
Environmental Defense Fund
National Parks Conservation Association
Natural Resources Defense Council
Planning and Conservation League
Sacramento Air Quality Management District
Sierra Club California
South Coast Air Quality Management District
Union of Concerned Scientists
OPPOSED: Clean Air Performance Professionals