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									                                       PROPOSED REGULATIONS
                                For information concerning Proposed Regulations, see Information Page.

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                         Roman type indicates existing text of regulations. Italic type indicates proposed new text.
                                Language which has been stricken indicates proposed text for deletion.



              TITLE 9. ENVIRONMENT                                       from motor vehicles located in or primarily operated in
                                                                         Northern Virginia (including out of area commuters) and the
                                                                         subsequent testing of those motor vehicles. Vehicles in or that
     STATE AIR POLLUTION CONTROL BOARD                                   operate primarily in the program area will be subject to remote
                                                                         sensing emission standards that include limits for not only
Title of Regulation: 9 VAC 5-91. Regulations for the Control             carbon monoxide and hydrocarbons, as was included in the
of Motor Vehicle Emissions in the Northern Virginia Area                 previous regulation, but also nitric oxide. Vehicles found to be
(amending 9 VAC 5-91-20, 9 VAC 5-91-160, 9 VAC 5-91-                     significantly out of compliance with the standards (known as
180, 9 VAC 5-91-740, 9 VAC 5-91-750, and 9 VAC 5-91-760;                 "gross emitters") will be required to have an out-of cycle
adding 9 VAC 5-91-741, 9 VAC 5-91-742, and 9 VAC 5-91-                   inspection and if warranted, have the vehicle repaired.
743).                                                                    Finding and repairing these very dirty vehicles will improve
Statutory Authority: §§ 46.2-1178.1, 46.2-1178.2 and 46.2-               the air quality in Northern Virginia. The regulation
1180 of the Code of Virginia; § 182 of the federal Clean Air             amendments also establish a program to subsidize repair
Act; 40 CFR Part 51, Subpart S.                                          costs of some vehicles identified by remote sensing as gross
                                                                         emitters.
Public Hearing Date: September 9, 2004 - 11 a.m.
  Public comments may be submitted until 5 p.m. on October               Issues:
  8, 2004.                                                               A. Public: The primary advantage to the general public is that
    (See Calendar of Events section                                      air quality will improve due to the technical improvements of
    for additional information)                                          remote sensing being able to identify gross emitters and
Agency Contact: Mary L. Major, Department of Environmental               require their repair prior to the normal in-cycle inspection
Quality, P.O. Box 10009, Richmond, VA 23240, telephone                   requirement. The change to the definition of motor vehicle, for
(804) 698-4423, FAX (804) 698-4510, or e-mail                            example, will result in a more effective program with the need
mlmajor@deq.virginia.gov.                                                to inspect, via remote sensing, 1968 and newer model
                                                                         vehicles. Changes in testing procedures will result in faster
Basis: Sections 46.2-1176 through 46.2-1187.3 of the Virginia            yet more thorough inspections that translate into shorter lines
Motor Vehicle Emissions Control Law authorize the State Air              at the testing facilities. Changes in certification requirements
Pollution Control Board to promulgate regulations for the                will mean repairs to vehicles that fail the test will be more
control of motor vehicle emissions and for emissions testing             effective.
including remote sensing. Specifically, § 46.2-1178.1 of the
Code of Virginia authorizes the board to establish by                    Changes have been made to the exhaust emission standards
regulation on-road testing requirements. The legal                       for remote sensing. The new standards also include a
requirements governing the content of the regulations are                standard for nitric oxide, a prime component of ozone.
found in §§ 46.2-1178.1, 46.2-1178.2 and 46.2-1179 of the                Vehicles that violate the new standards will be required to
Code of Virginia.                                                        receive an out-of-cycle inspection and, if necessary, repair the
                                                                         vehicle or face civil charges. This will impact a number of
Purpose: The purpose of the regulation is to require that                vehicle owners whose vehicles fail the new remote sensing
motor vehicles undergo periodic emissions inspection and be              exhaust standards. Although it is a disadvantage that there
maintained in compliance with emission standards for (i) the             will be expenses for repairs, there are also advantages to the
protection of public health and welfare, and (ii) the attainment         vehicle owners in that needed repairs will increase vehicle
and maintenance of the air quality standards. The proposed               fuel efficiency and enhance vehicle life, not to mention the
amendments are being made to conform to state law and                    improvement in air quality.
federal Clean Air Act requirements for the testing of
emissions, including remote sensing, from motor vehicles                 To assist with the cost of repair to the vehicles that violate the
located or primarily operated in Northern Virginia.                      exhaust standards for remote sensing, sections have been
                                                                         added to address financial assistance for those vehicles: how
Substance: The proposed amendments make a number of                      it works, eligibility and application process.
revisions to the remote sensing provisions of the regulation.
These changes include: changes in some definitions,                      B. Department: Most of the issues affecting the department
changes in some elements of the remote sensing testing                   are a result of either technical change in program operation or
applicability and program procedures and protocol as it                  state requirements. Amendments due to technical changes in
pertains to gross polluters and clean car screening, changes             program operation include: (i) changes in the wording of some
to the remote sensing test standards, and changes in some                definitions, (ii) changes in some elements of the remote
enforcement and compliance procedures.                                   sensing testing procedure, (iii) changes in the timing and
                                                                         flexibility of some test standards and (iv) changes in some
The new regulatory amendments would, in part, revise the                 permitting and licensing procedures.
existing provisions affecting the remote sensing of emissions

Volume 20, Issue 24                                 Virginia Register of Regulations                           Monday, August 9, 2004

                                                                     1
Proposed Regulations
Few disadvantages are associated with these regulatory                subject to remote sensing emission standards not only for
changes. There will be additional data management as a                carbon monoxide and hydrocarbons, but also for nitric oxide,
result of the information generated by remote sensing testing;        (iii) defines the phrase "operate primarily" for the purposes of
however, the current computer capabilities are more than              remote sensing as a vehicle recorded in the program area by
adequate to address this issue.                                       remote sensing equipment at least three times in a two-month
                                                                      period with no less than 30 days between the first and last
The overwhelming advantage from remote sensing testing is             reading, (iv) establishes that vehicles exceeding the
the increased emission reductions and cleaner air for Virginia        standards two days in any 120-day period will be determined
citizens and continued EPA approval of the Commonwealth’s             to have violated emissions standards, (v) allows for vehicles
I/M program. Tightening the remote sensing exhaust emission           that have a high emitter index of greater than 75 and that
standards will have a similar advantageous effect.                    exceed established standards once to be determined to have
Comparison with Federal Requirements: The proposed                    violated the emissions standards starting January 1, 2005, (vi)
regulation amendments are more restrictive than the                   requires remote sensing measurements used to determine if
applicable legal requirements. The exhaust standards for              a vehicle exceeds emissions standards to be taken at valid
remote sensing include standards for nitric oxides; EPA               sites and only under conditions when the vehicle specific
requires only standards for carbon monoxide and                       power indicator is between 3 and 22, (vii) amends the vehicle
hydrocarbons. In addition, the regulation provides for only one       clean screening requirements of the existing regulation, and
remote sensing measurement to constitute a violation                  (viii) modifies operating procedures and the application of civil
beginning in 2005; previous requirements involved                     charges when a vehicle is determined to have violated
measurements from two different remote sensing locations.             emissions standards.

Department of Planning and Budget's Economic Impact                   The proposed regulation also makes a number of Code of
Analysis: The Department of Planning and Budget (DPB) has             Virginia required changes such as establishing a program to
analyzed the economic impact of this proposed regulation in           subsidize the repair costs of some vehicles identified by
accordance with § 2.2-4007 H of the Administrative Process            remote sensing and expanding the model year coverage for
Act and Executive Order Number 21 (02). Section 2.2-4007 H            vehicles subject to remote sensing to include 1968 and newer
requires that such economic impact analyses include, but              model vehicles. The regulation also includes additional
need not be limited to, the projected number of businesses or         language intended to clarify various aspects of the regulation.
other entities to whom the regulation would apply, the identity       Estimated economic impact.
of any localities and types of businesses or other entities
particularly affected, the projected number of persons and            Description of the regulation. The proposed regulation makes
employment positions to be affected, the projected costs to           amendments to the existing regulation for the control of motor
affected businesses or entities to implement or comply with           vehicle emissions in the Northern Virginia area (covering the
the regulation, and the impact on the use and value of private        counties of Arlington, Fairfax, Loudoun, Prince William, and
property. The analysis presented below represents DPB’s               Stafford and the cities of Alexandria, Fairfax, Falls Church,
best estimate of these economic impacts.                              Manassas, and Manassas Park). The current regulation
                                                                      requires vehicles in or operating primarily in the area to report
Summary of the Proposed Regulation. Sections 46.2-1176                for biennial emissions inspections at permitted emissions
through 46.2-1187.3 of the Code of Virginia authorize the             inspection stations. Vehicles that fail the test are denied
State Air Pollution Control Board to promulgate regulations for       registration until they pass a retest or spend at least $450 on
the control of motor vehicle emissions and for emissions              emissions-related repairs. The current program also allows for
testing including remote sensing. Section 46.2-1177 of the            the random testing of vehicles through roadside pullovers or
Code of Virginia mandates that the Department of                      remote sensing devices. Failing vehicles are required to
Environmental Quality administer an emissions inspection              report to an emissions inspection station for an out-of-cycle
program. The program is to require biennial inspections of            test.
motor vehicles at permitted emissions inspection stations and
could require additional inspections of motor vehicles that           The proposed regulation updates the remote sensing
have been shown by on-road testing to exceed established              emissions standards used to determine whether a vehicle is
emissions standards. Section 46.2-1178 of the Code of                 in violation. According to the Department of Environmental
Virginia lays out the administration and scope of the                 Quality (DEQ), remote sensing emissions standards in the
emissions inspection program. The State Air Pollution Control         existing regulation are approximately 10 years old. The new
Board is authorized in § 46.2-1178.1 of the Code of Virginia to       standards being proposed are based on new technology that
promulgate regulations establishing on-road motor vehicle             has become available since then and on information collected
emissions testing requirements and in § 46.2-1179 of the              through two remote sensing pilot studies conducted in
Code of Virginia to adopt emissions standards necessary to            Virginia. The standards being proposed include exhaust
implement the emissions inspection program.                           emission standards for nitric oxide. The existing regulation
                                                                      established remote sensing standards for carbon monoxide
The proposed regulation was adopted with minor differences            and hydrocarbons. The northern Virginia area has been
as an emergency regulation on January 1, 2004. The                    classified by the Environmental Protection Agency (EPA) as a
proposed regulation (i) establishes new and updated remote            severe ozone nonattainment area. Ozone is formed by a
sensing exhaust emission standards, (ii) requires that                chemical reaction between volatile organic compounds,
vehicles in or operating primarily in the program area be             nitrogen oxides, and sunlight. Thus, by including standards for

Volume 20, Issue 24                              Virginia Register of Regulations                       Monday, August 9, 2004

                                                                  2
                                                                                                Proposed Regulations
nitric oxide, the proposed regulation is intended to identify            The proposed regulation amends the clean screen
vehicles emitting high amounts of nitric oxide, require them to          requirements in the existing regulation. Starting January 1,
receive an out-of-cycle inspection, and make the required                2005, the proposed regulation allows up to 5.0% of vehicles
repairs.                                                                 measured during a 30-day period to be identified as
                                                                         candidates for clean screening. These vehicles will not be
The new standards apply to all vehicles in or operated                   required to report for their next biennial inspection. Based on
primarily in the northern Virginia area. The regulation defines          conversations with DEQ, the clean screen requirements are
operated primarily for the purposes of the remote sensing                to be further modified following public comment. (i) The
program as a vehicle recorded in the program area by remote              agency plans to clean screen only vehicles of the 1995 model
sensing equipment at least three times in a two-month period,            year and older. Vehicles of 1996 model year and newer are
with no less than 30 days between the first and last reading.            deemed unsuitable for clean screening as there is a high
For the purposes of the biennial inspection, operated primarily          probability that some of them will qualify for clean screening
is defined as a vehicle being recorded (through remote                   when in fact the malfunction indicator light is illuminated due
sensing and on-road testing) in the area at least three times in         to an emissions-related problem being detected. Based on
a two-week period. According to DEQ, applying the definition             remote sensing data from Illinois, clean screening 5.0% of
for biennial inspections would reduce the effectiveness of               1996 and newer vehicles would lead to 3.0% of on-board
remote sensing in identifying dirty vehicles. Remote sensing             diagnostic failures being exempted from the biennial
would observe a very small sample of vehicles (and an even               inspection requirement. (ii) Moreover, the agency intends to
smaller sample of unique vehicles) three times in a two-week             provide clean screens for up to 5.0% of the cleanest cars in
period. DEQ believes that expanding the time-period to two               each model year group observed during a 30-day period.
months will allow for the effective identification of high               These vehicles would have to be recorded at least three times
emitting vehicles and better enable the remote sensing                   on three different days during a 120-day period, with each
program to meet its emissions reduction goals.                           measurement not exceeding any of the established
Vehicles will be determined to be in violation of the emissions          standards. At the end of each year, if the emissions reduction
standards if they exceed these standards two days in any                 loss due to clean screening is less than 10% of total program
120-day period. Under the existing regulation, vehicles were             emissions reduction, the percentage of cars clean screened
determined to be in violation if they exceeded the standards             will be raised. If, on the other hand, the emissions reduction
two days in a 90-day period. The increase in time-period was             loss due to clean screening is more than 10% of total program
based on concerns similar to those mentioned in the above                emissions reduction, the percentage will be reduced
paragraph. DEQ believes that requiring two reading                       appropriately.
exceeding the standards in a 90-day period reduces the                   The proposed regulation also modifies operating procedures
effectiveness of the remote sensing program in identifying               and the application of civil charges when a vehicle is
high emitters. Increasing the time-period to 120 days will               determined to have violated emissions standards. For
allow for more effective identification of high emitters and             example, motor vehicle owners will be required to furnish
more effective implementation of the remote sensing                      proof that their vehicle passed a confirmation test or received
program. Starting January 1, 2005, the regulation allows DEQ             a waiver within 30 days of a notice of violation of remote
to consider vehicles exceeding the standards once and with a             sensing emission standards in order to avoid paying civil
high emitter index of above 75 to be in violation of the                 charges. The existing regulation allows 90 days between the
emissions standards. The high emitter index categorizes the              notice of violation and the imposition of the civil charge. Other
probable emissions inspection failure rates of engine families           changes to the operating procedures and the application of
and is calculated based on historical failure rates once                 civil charges include changes to how the degree of violation
vehicles have been identified through remote sensing. The                and hence the civil charges are calculated and a provision
decision to include this provision was based on the fact that,           allowing DEQ to require 1996 and newer model year vehicles
starting January 1, 2005, DEQ would have a full year’s worth             to pass an exhaust test in addition to the on-board diagnostic
of data on which to based the high emitter index. According to           test.
DEQ, research shows that the high emitter index combined
with remote sensing is very reliable in terms of identifying             Finally, the proposed regulation also makes a number of
potential failures.                                                      Code of Virginia required changes. It establishes a financial
                                                                         assistance program to subsidize the repair costs of some
Remote sensing measurements that are used to determine                   vehicles identified by remote sensing. Qualified individuals will
whether a vehicle is in violation of emission standards are to           be able to receive up to 50% of the cost of emissions-related
be taken only under conditions when the vehicle specific                 repairs or 50% of the waiver amount, after a minimum co-
power indicator is between 3 and 22. The vehicle specific                payment of $100. It also expands the model year coverage for
power indicator adjusts remote sensing measurements for                  vehicles subject to remote sensing to include 1968 and newer
factors such as vehicle speed, acceleration, drag coefficient,           model vehicles.
tire rolling resistance, and roadway gradient. Not adjusting for
these factors could result in readings that temporarily exceed           Estimated economic impact: The proposed change is likely to
established standards. Thus, use of the vehicle specific power           impose additional costs on vehicle owners and emissions
indicator will reduce the number of false positives (i.e., the           inspection stations in terms of requiring increased
number of vehicles identified as high emitters through remote            inspections. Apart from the regular biennial emissions
sensing who subsequently pass the confirmation test) and                 inspection, vehicles identified through remote sensing as high
allow for more efficient identification of high emitting vehicles.       emitters will be required to report for an out-of-cycle

Volume 20, Issue 24                                Virginia Register of Regulations                        Monday, August 9, 2004

                                                                     3
Proposed Regulations
confirmation test at a permitted emissions inspection station                          (the cost of 425 inspections at $28 per inspection) and
(vehicles required to report for the biennial inspection within                        vehicles owners are likely to incur additional inspection costs
90 days of the remote sensing violation or vehicles that have                          of $137,004 per year (the cost of 4,893 inspections at $28 per
received a waiver in the 12 months prior to the violation will                         inspection).
not be required to report for an out-of-cycle emissions test).
The cost of the confirmation test is to be borne by the                                In addition to the cost of additional inspections, the proposed
emissions inspection station or the vehicle owner depending                            regulation is likely to impose additional repair costs on vehicle
on whether the vehicle passes or fails the test. If a vehicle                          owners. Owners whose vehicles fail the confirmation test will
identified as a high emitter through remote sensing passes                             be required to make appropriate repairs or undertake $450 (in
the confirmation test, the cost is to be borne by the emissions                        1990 dollars) in repairs in order to qualify for a waiver.
inspection station. If, on the other hand, a vehicle fails the                         According to DEQ, the average cost of these repairs is
confirmation test, the cost of the test is to be borne by the                          approximately $250. In the absence of this regulation,
vehicle owner. According to DEQ, most service stations                                 vehicles registered in the northern Virginia area would have to
currently charge $28 for an emissions inspection (the Code of                          make these repairs during the course of the regular biennial
Virginia caps the inspection fee at $28).                                              inspection. By requiring the repairs to be made earlier, the
                                                                                       proposed change is likely to impose some additional cost on
Based on the 2002 remote sensing pilot study conducted in                              vehicle owners. Repairs worth $250 made a year early would
Virginia, it is estimated that approximately 2.0% of all vehicles                      cost the vehicle owner an additional $11.35 (based on the
observed through remote sensing are likely to meet the                                 average 1-year treasury rate over the past ten years of
definition of operated primarily and be determined to violate                          4.54%). In the absence of this regulation, vehicles registered
the emission standards. DEQ expects that between 250,000                               outside the northern Virginia area would not be required to
and 300,000 unique vehicles per year are likely to be remote                           make any emissions-related repairs. These vehicle owners
tested. Assuming 300,000 vehicles are remote tested each                               will now have to incur the additional cost of making these
year and 2.0% of them are required to report for an out-of-                            repairs. As estimated above, approximately 540 (or 9.0%) of
cycle test, approximately 6,000 vehicles per year will be                              the 6,000 high emitting vehicles identified through remote
required to report for an out-of-cycle emissions test. Of these,                       sensing are likely to be registered outside the control area.
approximately 9.0% (or 540 vehicles) are likely to be                                  Assuming an 8% rate of false positives, 497 of the 540
registered outside the northern Virginia area and not subject                          vehicles are likely to fail the confirmation test and be required
                                      1                                                                                  4
to the biennial inspection program. Of the remaining 5,460                             to make appropriate repairs. Thus, the additional repair-
vehicles, we can expect 12.5% to be due for a biennial                                 related cost imposed by the regulation is $49,895 on vehicles
inspection in the 90-day period following the remote sensing                           registered in northern Virginia (an average cost of $11.35 on
violation and thus be exempt from reporting for an out-of-                             4,396 vehicle owners) and $124,250 on vehicles registered
                              2
cycle emissions inspection. The number of vehicles applying                            outside northern Virginia (an average cost of $250 on 497
and qualifying for waivers is not known. Assuming all vehicles                         vehicle owners).
registered outside the northern Virginia area and determined
to be violating the remote sensing standards are required to                           The proposed regulation will also impose additional costs on
report for an out-of-cycle inspection (540 vehicles) and 87.5%                         the state. DEQ estimates that the remote sensing program
of all vehicles registered in the northern Virginia area and                           will cost approximately $300,000 per year for data collection.
determined to be violating the remote sensing standards are                            This includes the cost of obtaining and setting up the remote
required to report for an out-of-cycle inspection (4,778                               sensing units, hiring trained operators, analyzing data, and
vehicles), the proposed regulation will result in approximately                        providing the Department of Motor Vehicles with the requisite
5,318 vehicles being required to report for an out-of-cycle                            information. DEQ is also likely to incur additional costs in
inspection and additional inspection costs of $148,904.                                terms of staff time and resources in overseeing the program.
                                                                                       DEQ expects that one full-time position will be dedicated to
According to a study conducted by California, it is estimated                          the remote sensing and economic assistance program.
that 8.0% (or 425 out of 5,318) of vehicles identified as high
emitters through remote sensing are likely to pass the                                 The proposed regulation is also likely to produce economic
                   3
confirmation test. Thus, emissions inspection stations are                             benefits. The adoption of this rule is likely to reduce emissions
likely to incur additional inspection costs of $11,900 per year                        of ozone-causing compounds in the Northern Virginia area.
                                                                                       According to DEQ, the proposed changes are estimated to
1                                                                                      reduce hydrocarbons and nitrogen oxide emissions by one-
  The 2002 Virginia remote sensing pilot study estimated that approximately 9%
of vehicles operating primarily in the northern Virginia area were registered          half of a ton per day during the high ozone summer months.
outside the control area.                                                              Apart from identifying high emitting vehicles registered in the
2
  The 12.5% estimate is based on the assumption that the distribution of               northern Virginia area and requiring them to be fixed in a
vehicles requiring inspections during any two-year period is uniform.
3
  The 2002 Virginia remote sensing pilot study estimated the percentage of
                                                                                       timely fashion, the proposed regulation will also help identify
false positives at 35%-40%. However, this estimate is likely to overstate the          high emitters who are not registered in the northern Virginia
number of false positives. Vehicles violating the remote sensing standards             control area but are operating primarily in the control area. As
were not immediately given an emissions test. Instead, the estimate was based
on the pass/fail rate on emissions tests conducted in the six months following a
                                                                                       4
vehicle’s remote sensing violation. Factors such as vehicles being repaired or           In making these estimates, it is assumed that vehicles registered outside the
receiving engine tune-ups prior to taking the emissions test are likely to have        northern Virginia area are just as likely to be identified as high emitters and fail
raised the number of false positives. The California estimate is likely to be          the confirmation test as vehicles registered in the area. However, it is likely that
more reliable as it is based on the pass/fail rate of vehicles on exhaust              vehicles that have not been inspected on a biennial basis are more likely to be
emissions test administered immediately following a vehicle’s violation of the         high emitters than those that are required to report for regular emissions
remote sensing standards.                                                              testing.

Volume 20, Issue 24                                           Virginia Register of Regulations                                     Monday, August 9, 2004

                                                                                   4
                                                                                                     Proposed Regulations
mentioned above, the 2002 Virginia remote sensing pilot                 Finally, the clean screen provisions in the proposed regulation
study estimated that 9.0% of all vehicles falling under the             are likely to produce economic benefits. The clean screen
definition of operated primarily were registered outside the            provision is likely to result in fewer vehicles requiring biennial
control area. These vehicles do not fall under the biennial             testing. Vehicles that are clean screened will not be required
inspection program and would not be required to be                      to report for the next biennial inspection following their clean
emissions tested. Thus, the proposed regulation is likely to            screen notice. This will result in savings for vehicle owners.
reduce emissions by identifying approximately 497 high                  DEQ intends to issue clean screens to up to 5.0% of vehicles
emitting vehicles registered outside the northern Virginia but          in each model year group. Based on the 2002 remote sensing
operating primarily in the area and requiring them to be fixed.         pilot study conducted in Virginia, approximately 12% of
                                                                        vehicles observed through remote sensing (or 36,000
The emissions reductions are likely to be beneficial to public          vehicles out of 300,000 unique vehicles observed in a year)
health and welfare. According to EPA, exposure to ozone at                                                                    5
                                                                        were seen three or more times in a 60-day period. Assuming
the ground level can cause a number of respiratory problems             12% of vehicles are observed three or more times during a
such as irritation of the respiratory system, reduced operation         120-day period (a conservative assumption) and 5.0% of
of the lungs, inflammation and damage to the cells lining the           these vehicles that are registered in northern Virginia are
lungs, and aggravation of existing lung problems. Repeated              clean screened (assuming none of the measurements exceed
ozone exposure can cause permanent damage to children’s                 established standards), it would result in 1,800 cars being
developing lungs and accelerate the decline in lung function            exempted from the biennial inspection. Savings to vehicle
with age in adults. According to the U.S. Global Change                 owners would be $50,400 per year. Moreover, to the extent
Research Program, the best estimate of human health effects             that clean screening saves vehicle owners potential repair
of ground-level ozone in the United States over the past 15             expenses and the time and effort spent in getting their vehicle
years is approximately $7 billion per year. Thus, reducing the          emissions tested, the proposed change is likely to produce
level of ozone will provide economic benefits in the future in          significant economic benefits. For example, the clean screen
terms of respiratory health problems and fatalities prevented           program operated by Missouri in the St. Louis area charges a
(reflected in lower health care and other costs) and increased          clean screen fee that is equal to the emissions inspection fee.
productivity.                                                           Despite this, Missouri had a clean screen notice redemption
The emissions reductions achieved by the implementation of              rate of 78% in 2002.
this rule would also help Virginia avoid federal sanctions that         The proposed regulation will also result in a transfer of
would be imposed for violating the SIP (state implementation            resources between vehicle owners and the state. The subsidy
plan) provisions of the Clean Air Act. Effective March 23,              program provided for under the proposed regulation will result
2003, the northern Virginia area was classified by EPA as a             in the state subsidizing a portion of the cost of repairs
severe ozone non-attainment area as a result of emissions               incurred by qualifying vehicle owners. If emissions-related
from both industrial sources and motor vehicles. The changes            repairs are made under the biennial inspection program,
being proposed are additional measures to be incorporated               vehicle owners are not be eligible for a subsidy. However, if
into the SIP to bring emissions to a level at or below the              the repairs are made under the remote sensing program, the
ozone standard. Failure to prepare such a plan and/or failure           state is required to provide a subsidy to qualified vehicle
to obtain EPA approval for such a plan could result in                  owners. The subsidy is up to 50% of the amount spent on
sanctions including the loss of federal funds for highways and          emissions-related repairs or up to 50% of the waiver amount,
other projects and/or more restrictive requirements for new             after a $100 co-payment. DEQ has currently budgeted
industries. Moreover, the lack of an acceptable plan to get             between $300,000 and $350,000 for the subsidy program.
emissions below national ambient air quality standards could            The subsidy will defray some of the additional cost imposed
result in EPA promulgating and implementing an air quality              on vehicle owners by the proposed regulation.
plan for Virginia. Implementing the proposed rule would
produce economic benefits by allowing Virginia to continue to           The net economic impact of the proposed change will depend
receive federal funds and letting the state run its own air             on whether the additional costs of meeting the requirements
quality program.                                                        of the proposed regulation are greater than or less than the
                                                                        benefits of doing so. The proposed regulation is likely to
The proposed change is also likely to produce additional                impose additional costs on vehicle owners, emissions
benefits in terms of improved fuel efficiency and enhanced              inspection stations, and the state. Owners of vehicles
vehicle life. In the absence of the proposed regulation,                registered in the northern Virginia area can expect to pay a
vehicles identified as high emitters that are registered in the         total $172,983 per year in additional inspection and repair-
northern Virginia area would most likely have made the                  related costs. Owners of vehicles registered outside the
required repairs during the biennial inspection. Vehicles               northern Virginia area can expect to pay a total $138,166 per
identified as high emitters that are registered outside the             year in additional inspection and repair-related costs. Some of
northern Virginia area would most likely not have made the              the cost of emissions-related repairs will be subsidized by the
required repairs until there were other problems that surfaced.         state. Inspection stations are likely to incur additional costs of
According to DEQ, these repairs increase fuel efficiency and            $11,900 per year due to false positives. The state is likely to
vehicle life. Thus, by requiring vehicles identified as high            incur costs of $300,000 per year and the cost of one full-time
emitters to report for an out-of-cycle test and undertake all the
necessary repairs in a timely manner, the proposed regulation           5
                                                                         In order to be eligible for a clean screen, vehicles are required to have been
is likely to provide economic benefits to vehicle owners.               observed by remote sensing at least three different times on three different
                                                                        days during a 120-day period.

Volume 20, Issue 24                               Virginia Register of Regulations                                 Monday, August 9, 2004

                                                                    5
Proposed Regulations
position in administering and implementing the remote                  Effects on the use and value of private property. The
sensing program. However, the proposed regulation is also              proposed regulation is likely to increase the costs associated
likely to produce economic benefits. It is likely to reduce            with operating motor vehicles in the northern Virginia area.
ground-level ozone in the northern Virginia area and reduce            However, some of these costs are likely to be counter-
some of its negative human health effects. It is likely to             balanced by the clean screens allowed for under this
ensure that the state avoids federal sanctions and continues           regulation, the provision of subsidies for low-income vehicle
to receive federal funds and run its own air quality program. It       owners, improved fuel efficiency, and enhanced vehicle life.
is also likely to produce economic benefits for vehicle owners         The proposed regulation is likely to have a positive effect on
through enhanced fuel efficiency and vehicle life and through          the use and value of emissions inspection stations. While it is
clean screening. A precise estimate of these benefits, and             likely to impose some additional costs on emissions
hence of the net economic impact of the proposed change, is            inspection stations, the estimated increase in revenue through
not available at this time.                                            increased vehicle inspections and repairs is likely to outweigh
                                                                       the increased costs. Finally, the proposed regulation is also
Businesses and entities affected. The proposed regulation is           likely to have a positive effect on the use and value of
likely to affect vehicle owners who operate primarily (as              property in the northern Virginia area. By lowering the amount
defined by the regulation) in the northern Virginia area.              of ground-level ozone and improving air quality, the proposed
Owners whose vehicles are registered in the northern Virginia          regulation is likely to raise property values in the northern
area are likely to incur additional costs of $172,983 per year         Virginia area. The net effect of the proposed change on the
in inspection and repair-related expenses. However, some of            use and value of private property cannot be precisely
these owners are likely to receive clean screens, producing            estimated at this time.
cost savings of over $50,400 per year. Owners whose
vehicles are registered outside the northern Virginia area are         Agency's Response to the Department of Planning and
likely to incur additional costs of $138,166 per year in               Budget's Economic Impact Analysis: The department has
additional inspection and repair-related costs. Qualifying             reviewed the economic impact analysis prepared by the
vehicle owners registered in and outside the northern Virginia         Department of Planning and Budget and has no comment.
area will be eligible to receive a subsidy (currently budgeted
at between $300,000 and $350,000 per year) to defray some              Summary:
of the cost of emissions-related repairs. Finally, by making             The proposed amendments make a number of revisions to
emissions-related repairs, vehicle owners are likely to benefit          conform to changes in Virginia law pertaining to remote
from improved fuel efficiency and enhanced vehicle life.                 sensing. In general, the regulation needs to be amended to
The proposed regulation is likely to affect permitted emissions          reflect new emission standards for vehicles detected via
inspection stations. Inspection stations are likely to incur             remote sensing as well as criteria for conducting random
additional costs of $11,900 per year due to false positives. In          testing of motor vehicle emissions, procedures to notify
                                                                         owners of test results, and assessment of civil charges for
addition, they are also likely to incur losses of approximately
$50,400 through the clean screen program. However,                       noncompliance with emissions standards in the current
permitted emissions inspection stations are likely to receive            regulation.
additional revenues of approximately $311,149 in inspection              Two specific changes to the regulation as a result of
and repair-related services.                                             changes to the Code of Virginia include the change in the
DEQ expects the remote sensing program to measure                        model year coverage for vehicles subject to remote sensing
300,000 vehicles a year, with an expected failure rate of 2.0%           to include model year 1968 and newer model vehicles, and
(or 6,000 vehicles). Of these, approximately 4,396 vehicles              the requirement to establish a program to subsidize repair
                                                                         costs of some vehicles identified by remote sensing.
are likely to be registered in the northern Virginia area and
497 vehicles are likely to be registered outside the northern          9 VAC 5-91-20. Terms defined.
Virginia area. Moreover, DEQ estimates that there are
currently 392 permitted emissions inspection stations.                 "Aborted test" means an emissions inspection procedure that
                                                                       has been initiated by the inspector but stopped and not
Localities particularly affected. The proposed regulation will         completed due to inspector error or a vehicular problem that
affect the northern Virginia area covering the counties of             prevents completion of the test. Aborted tests are not tests
Arlington, Fairfax, Loudoun, Prince William, and Stafford and          that cannot be completed due to a "failed/invalid" result
the cities of Alexandria, Fairfax, Falls Church, Manassas, and         caused by an exhaust dilution problem or an engine condition
Manassas Park. The localities are not expected to incur any            that prevents the inspection from being completed.
additional costs in implementing the proposed regulation.
                                                                       "Access code" means the security phrase or number which
Projected impact on employment. The proposed regulation is             allows authorized station personnel, the department, and
not likely to have a significant impact on employment,                 analyzer service technicians to perform specific assigned
especially as the labor market is not likely to be very slack in       functions using the certified analyzer system, as determined
the northern Virginia area. To the extent that the proposed            by the department. Depending on the assigned function, the
regulation encourages emissions inspection stations to hire            access code is a personal password, a state password or a
more people, it is likely to shift some workers into these jobs        service password. Access code is not an identification
and away from other jobs.                                              number, but is used as an authenticator along with the



Volume 20, Issue 24                               Virginia Register of Regulations                      Monday, August 9, 2004

                                                                   6
                                                                                              Proposed Regulations
identification number where such number is needed to                   "Air system" means a system for providing supplementary air
perform specific tasks.                                                to promote further oxidation of hydrocarbons and carbon
                                                                       monoxide gases and to assist catalytic reaction.
"Actual gross weight" means the gross vehicle weight rating
(GVWR).                                                                "Alternative fuel" means an internal combustion engine fuel
                                                                       other than (i) gasoline, (ii) diesel, or (iii) fuel mixtures
"Administrator" means the administrator of the U.S.                    containing more than 15% volume of gasoline.
Environmental Protection Agency (EPA) or an authorized
representative.                                                        "Alternative method" means any method of sampling and
                                                                       analyzing for an air pollutant that is not a reference method,
"Affected motor vehicle" means any motor vehicle which:                but that has been demonstrated to the satisfaction of the
  1. Was manufactured or designated by the manufacturer as             board, in specific cases, to produce results adequate for its
  a model year less than 25 calendar years prior to January 1          determination of compliance.
  of the present calendar year according to the formula, the           "ASM" means Acceleration Simulation Mode testing which is
  current calendar year minus 24, except those identified by           (ASM) test" means a dynamometer-based emissions test
  remote sensing as specified in subdivision 5 of this                 performed in one or more, discreet, simulated road speed and
  definition;                                                          engine load modes, and equipment which can be used to
  2. Is designed for the transportation of persons or property;        perform any such test.

  3. Is powered by an internal combustion engine; and                  "Authorized personnel" means department personnel, an
                                                                       individual designated by analyzer manufacturer, station
  4. For the Northern Virginia Emissions Inspection Program,           owner, licensed emissions inspector, station manager or other
  has an actual gross weight of 10,000 pounds or less.; and            person as designated by the station manager.
  5. For vehicles subject to the remote sensing requirements           "Basic engine systems" means those parts or assemblies
  of 9 VAC 5-91-180, was designated by the manufacturer as             which provide for the efficient conversion of a compressed air
  model year 1968 or newer.                                            and fuel charge into useful power to include but not limited to
The term "affected motor vehicle" does not mean any:                   valve train mechanisms, cylinder head to block integrity,
                                                                       piston-ring-cylinder sealing integrity and post-combustion
  1. Vehicle powered by a clean special fuel as defined in             emissions control device integrity.
  § 58.1-2101 of the Code of Virginia, provided the federal
  Clean Air Act permits such exemptions for vehicles                   "Bi-fuel" means any motor vehicle capable of operating on
  powered by clean special fuels;                                      one of two different fuels, usually gasoline and an alternative
                                                                       fuel, but not a mixture of the fuels. That is, only one fuel at a
  2. Motorcycle;                                                       time.
  3. Vehicle which, that at the time of its manufacture, was           "Board" means the State Air Pollution Control Board or its
  not designed to meet emissions standards set or approved             designated representative.
  by the federal government;
                                                                       "Calibration" means establishing or verifying the response
  4. Any antique motor vehicle as defined in § 46.2-100 of the         curve of a measurement device using several different
  Code of Virginia and licensed pursuant to § 46.2-730 of the          measurements having precisely known quantities.
  Code of Virginia;
                                                                       "Calibration gases" means gases of precisely known
  5. Firefighting equipment, rescue vehicle, or ambulance;             concentrations that are used as references for establishing or
                                                                       verifying the response curve of a measurement device.
  6. Vehicle for which no testing standards have been
  adopted by the board; or                                             "Canister" means a mechanical device capable of adsorbing
                                                                       and retaining hydrocarbon vapors.
  7. Tactical military vehicle.
                                                                       "Catalytic converter" means a post combustion device which
"Air intake systems" means those systems which that allow
                                                                       that oxidizes hydrocarbons, carbon monoxide gases, and may
for the induction of ambient air (to include preheated air) into
                                                                       also reduce oxides of nitrogen.
the engine combustion chamber for the purpose of mixing
with a fuel for combustion.                                            "Certificate of emissions inspection" means a document,
                                                                       device, or symbol, whether recorded in written or electronic
"Air pollution" means the presence in the outdoor atmosphere
                                                                       form, as prescribed by the director and issued pursuant to this
of one or more substances which are or may be harmful or
                                                                       chapter, which indicates that (i) an affected motor vehicle has
injurious to human health, welfare or safety; to animal or plant
                                                                       satisfactorily complied with the emissions standards and
life; or to property; or which unreasonably interfere with the
                                                                       passed the emissions inspection provided for in this chapter;
enjoyment by the people of life or property.
                                                                       (ii) the requirement of compliance with the emissions
"Air Pollution Control Law" means Chapter 13 (§ 10.1-1300 et           standards has been temporarily waived; or (iii) the affected
seq.) of Title 10.1 of the Code of Virginia.                           motor vehicle has failed the emissions inspection.
                                                                       "Certified emissions repair facility" means a facility, or portion
                                                                       of a facility, that has obtained a certification in accordance

Volume 20, Issue 24                               Virginia Register of Regulations                       Monday, August 9, 2004

                                                                   7
Proposed Regulations
with Part VII (9 VAC 5-91-500 et seq.) to perform emissions            inspections and manage the enhanced emissions inspection
related repairs on motor vehicles.                                     program.
"Certified emissions repair technician" means a person who             "Data medium" or "data media" means the medium contained
has obtained a certification in accordance with Part VIII              in the certified analyzer system and used to electronically
(9 VAC 5-91-550 et seq.) to perform emissions related repairs          record test data.
on motor vehicles.
                                                                       "Day" means a 24-hour period beginning at midnight.
"Certified enhanced analyzer system" or "analyzer system"
means the complete system that samples and reads                       "Dedicated alternative fuel vehicle" means a vehicle that was
concentrations of hydrocarbon, carbon dioxide, nitrogen nitric         configured by the vehicle manufacturer to operate only on one
oxides and carbon monoxide gases and that is approved by               specific fuel other than (i) gasoline, (ii) diesel, or (iii) fuel
the department for use in the Enhanced Emissions Inspection            mixtures containing more than 15% by volume of gasoline.
Program in accordance with Part X (9 VAC 5-91-640 et seq.).            "Dedicated-fuel vehicle" means a vehicle that was designed
The system includes the exhaust gas handling system, the               and manufactured to operate and operates on one specific
exhaust gas analyzer, evaporative system pressure test                 fuel.
equipment, associated automation hardware and software,
data media, the analyzer system cabinet, the dynamometer               "Department" means any employee or other representative of
and appurtenant devices, vehicle identification equipment,             the Virginia Department of Environmental Quality, as
and associated cooling and exhaust fans and gas cylinders.             designated by the director.

"Certified thermometer" means a laboratory grade ambient               "Director" means the director of the Virginia Department of
temperature-measuring device with a range of at least 20F             Environmental Quality or a designated representative.
through 120F, and an attested accuracy of at least 1F with           "Dual fuel" means a vehicle which that operates on a
increments of 1, with protective shielding.                           combination of fuels, usually gasoline or diesel and an
                                                                       alternative fuel, at the same time. That is, the mixed fuels are
"Chargeable inspection" means a completed inspection on an
                                                                       introduced into the combustion chamber of the engine.
affected motor vehicle, for which the station owner is entitled
to collect an inspection fee. No fee shall be paid for (i)             "Emissions control equipment" means any part, assembly or
inspections for which a certificate of emissions inspection has        equipment originally installed by the manufacturer in or on a
not been issued, (ii) inspections that are conducted by the            motor vehicle for the sole or primary purpose of reducing
department for referee purposes, (iii) inspections which were          emissions.
ordered due to on-road test failures but which result in an
emissions inspection "pass" at an inspection station, or (iv)          "Emissions control systems" means any system consisting of
the first reinspection done at the same station that performed         parts, assemblies or equipment originally installed by the
the initial inspection within 14 days. An inspection ordered by        manufacturer in or on a motor vehicle for the primary purpose
the department due to an on-road test failure and that results         of reducing emissions.
in an emissions inspection a confirmation test failure at the an       "Emissions inspection" means an emissions inspection of a
emissions inspection station is a chargeable inspection.               motor vehicle performed by an emissions inspector employed
"Confirmation test" means an emissions inspection required             by or working at an emissions inspection station or fleet
due to a determination that the vehicle exceeds the exhaust            emissions inspection station, using the tests, procedures, and
emissions standards prescribed in Table III-B in 9 VAC 5-91-           provisions set forth in this chapter.
180 for on-road testing through remote sensing. The                    "Emissions inspection station" means a facility or portion of a
confirmation emissions inspection procedure may include an             facility which that has obtained an emissions inspection
exhaust test (ASM or TSI), OBD system test or both.                    station permit from the director authorizing the facility to
"Consent order" means a mutual agreement between the                   perform emissions inspections in accordance with the
department and any owner, operator, emissions inspector, or            provisions of this chapter.
emissions repair technician that such owner or other person            "Emissions inspector" means a person licensed by the
will perform specific actions for the purpose of diminishing or        department to perform inspections of vehicles required under
abating the causes of air pollution or for the purpose of              the Virginia Motor Vehicle Emissions Control Law and is
coming into compliance with this chapter. A consent order              qualified in accordance with this chapter.
may include agreed upon civil charges. Such orders may be
issued without a formal hearing.                                       "Emissions standard" means any provision of Part III (9 VAC
                                                                       5-91-160 et seq.) or Part XIV (9 VAC 5-91-790 et seq.) which
"Curb idle" means vehicle operation whereby the transmission           that prescribes an emission limitation, or other emission
is disengaged and the engine is operated with the throttle in          control requirements for motor vehicle air pollution.
the closed or idle stop position with the resultant engine
speed between 400 and 1,250 revolutions per minute (rpm),              "Empty weight (EW)" means that weight stated as the EW on
or at another idle speed if so specified by the manufacturer.          a Virginia motor vehicle registration or derived from the motor
                                                                       vehicle title or manufacturer's certificate of origin. The EW
"Data handling system" means all the computer hardware,                may be used to determine emissions inspection standards.
software and peripheral equipment used to conduct emissions


Volume 20, Issue 24                               Virginia Register of Regulations                       Monday, August 9, 2004

                                                                   8
                                                                                                Proposed Regulations
"Enhanced emissions inspection program" means a motor                    include the factual inquiries of an informal nature provided in
vehicle emissions inspection including procedures, emissions             § 2.2-4019 of the Administrative Process Act.
standards, and equipment required by 40 CFR Part 51,
Subpart S or equivalent and consistent with applicable                   "Fuel control systems" means those mechanical, electro-
requirements of the federal Clean Air Act. The director shall            mechanical, galvanic or electronic parts or assemblies which
will administer the enhanced emissions inspection program.               regulate the air-to-fuel ratio in an engine for the purpose of
Under the Virginia Motor Vehicle Emissions Control Law, the              providing a combustible charge.
program requires that affected motor vehicles, unless                    "Fuel filler cap pressure test" or "gas cap pressure test"
otherwise exempted, receive biennial inspections at official             means a test of the ability of the fuel filler cap to prevent the
emissions inspection stations, which may be test and repair              release of fuel vapors from the fuel tank under normal
facilities, in accordance with this chapter. Nothing in this             operating conditions.
program shall bar enhanced emissions inspection stations or
facilities from also performing vehicle repairs.                         "Gas span" means the adjustment of an exhaust gas analyzer
                                                                         to correspond with known concentrations of gases.
"EPA" means the United States Environmental Protection
Agency.                                                                  "Gas span check" means a procedure using known
                                                                         concentrations of gases to verify the gas span adjustment of
"Equivalent test weight (ETW)" or "emission test weight"                 an analyzer.
means the weight of a motor vehicle as automatically
determined by the emissions analyzer system based on                     "Gross vehicle weight rating (GVWR)" means the maximum
vehicle make, model, body, style, model year, engine size,               recommended combined weight of the motor vehicle and its
permanently installed equipment, and other manufacturer and              load as prescribed by the manufacturer and is (i) expressed
aftermarket supplied information, and used for the purpose of            on a permanent identification label affixed to the motor
assigning dynamometer resistance and exhaust emissions                   vehicle; (ii) stated on the manufacturer's certificate of origin;
standards for the conduct of an exhaust emissions inspection.            or (iii) coded in the vehicle identification number. If the GVWR
                                                                         can be determined it shall be one element used to determine
"Evaporative system pressure test" or "pressure test" means              emissions inspection standards and test type. If the GVWR is
a physical test of the evaporative emission control system on            unavailable, the department may make a determination based
a motor vehicle to determine whether the evaporative system              on the best available evidence including manufacturer
vents emissions of volatile organic compounds from the fuel              reference, information coded in the vehicle identification
tank and fuel system to an on-board emission control device,             number, or other available sources of information from which
and prevents their release to the ambient air under normal               to make the determination.
vehicle operating conditions. Such testing shall only be
conducted at emissions inspection stations upon installation             "Heavy duty gasoline vehicle (HDGV)" means a heavy duty
of approved equipment and software necessary for                         vehicle using gasoline as its fuel.
performing the test, as determined by the director.                      "Heavy duty vehicle (HDV)" means any affected motor vehicle
"Exhaust gas analyzer" means an instrument which that is                 (i) which is rated at more than 8,500 pounds GVWR or (ii)
capable of measuring the concentrations of certain air                   which has a loaded vehicle weight or GVWR of more than
pollutants in the exhaust gas from a motor vehicle.                      6,000 pounds and has a basic frontal area in excess of 45
                                                                         square feet.
"Facility" means something that is built, installed or
established to serve a particular purpose; includes, but is not          "High emitter index" means the method of categorizing the
limited to, buildings, installations, public works, businesses,          probable emissions inspection failure-rates of engine families.
commercial and industrial plants, shops and stores,                      Values within the index are determined by computing the
apparatus, processes, operations, structures, and equipment              percentile of the historical emissions inspection failure rate of
of all types.                                                            a specific engine family, i.e., a specific group of vehicles with
                                                                         the same vehicle type, year, make and engine size, to the
"Federal Clean Air Act" means 42 USC § 7401 et seq.                      historical emissions inspection failure rate of all engine
"Fleet" means 20 or more motor vehicles which that are                   families in a specific model year group. Failure rates are
owned, operated, leased or rented for use by a common                    based on the most recent full year of emissions inspection
                                                                         test data from the Virginia Motor Vehicle Emissions Control
owner.
                                                                         Program. Vehicles with an index value above 75 are
"Fleet emissions inspection station" means any inspection                considered "high-emitters."
facility operated under a permit issued to a qualified fleet
owner or lessee as determined by the director.                           "Identification number" means the number assigned by the
                                                                         department to uniquely identify department personnel, an
"Flexible-fuel vehicle" means any motor vehicle capable of               emissions inspection station, a certified emissions repair
operating on two or more fuels, either one at a time or any              facility, a licensed emissions inspector, a certified emissions
mixture of two or more different fuels.                                  repair technician or other authorized personnel as necessary
                                                                         for specific tasks.
"Formal hearing" means a board or department process that
provides for the right of private parties to submit factual proofs       "Idle mode" means a condition where the vehicle engine is
as provided in § 2.2-4020 of the Administrative Process Act in           warm and running at the rate specified by the manufacturer
connection with case decisions. Formal hearings do not

Volume 20, Issue 24                                Virginia Register of Regulations                        Monday, August 9, 2004

                                                                     9
Proposed Regulations
as curb idle, where the engine is not propelling the vehicle,           rated at greater than 6,000 pounds GVWR. LDT2 is a subset
and where the throttle is in the closed or idle stop position.          of light duty trucks.
"Ignition systems" means those parts or assemblies which                "Light duty vehicle (LDV)" means an affected motor vehicle
that are designed to cause and time the ignition of a                   that is a passenger car or passenger car derivative capable of
compressed air and fuel charge.                                         seating 12 passengers or less.
"Implementation plan" means the plan, including any revision            "Loaded vehicle weight (LVW)" or "curb weight" means the
thereof, that has been submitted by the Commonwealth and                weight of a vehicle and its standard equipment; i.e., the empty
approved in Subpart VV of 40 CFR Part 52 by the                         weight as recorded on the vehicle's registration or the base
administrator under § 110 of the federal Clean Air Act, or              shipping weight as recorded in the vehicle identification
promulgated in Subpart VV of 40 CFR Part 52 by the                      number, whichever is greater; plus the weight of any
administrator under § 110(c) of the federal Clean Air Act, or           permanent attachments, the weight of a nominally filled fuel
promulgated or approved by the administrator pursuant to                tank, plus 300 pounds.
regulations promulgated under § 301(d) of the federal Clean
Air Act and that implements the relevant requirements of the            "Locality" means a city, town, or county created by or
federal Clean Air Act.                                                  pursuant to state law.

"Informal fact finding" means an informal conference or                 "Mobile fleet emissions inspection station" means a facility or
                                                                        entity which that provides emissions inspection equipment or
consultation proceeding used to ascertain the fact basis for
case decisions as provided in § 2.2-4019 of the Administrative          services to a fleet emissions inspection station on a
Process Act.                                                            temporary basis. Such equipment is not permanently installed
                                                                        at the fleet facility but is temporarily located at the fleet facility
"Initial inspection" means the first complete emissions                 for the sole purpose of testing vehicles owned, operated,
inspection of a motor vehicle conducted in accordance with              leased or rented for use by a common owner.
the biennial inspection requirement and for which a valid
vehicle emissions inspection report was issued. Any test                "Model year" means, except as may be otherwise defined in
following the initial inspection is a retest or reinspection.           this chapter, the motor vehicle manufacturer's annual
                                                                        production period which includes the time period from
"Inspection area" means the area that is occupied by the                January 1 of the calendar year prior to the stated model year
certified analyzer system and the vehicle being inspected.              to December 31 of the calendar year of the stated model
                                                                        year; provided that, if the manufacturer has no annual
"Inspection fee" means the amount of money that the                     production period, the term "model year" shall mean the
emissions inspection station may collect from the motor                 calendar year of manufacture. For the purpose of this
vehicle owner for each chargeable inspection.                           definition, model year is applied to the vehicle chassis,
"Light duty gasoline vehicle (LDGV)" means a light duty                 irrespective of the year of manufacture of the vehicle engine.
vehicle using gasoline as its fuel.                                     "Motor vehicle" means any motor vehicle as defined in § 46.2-
"Light duty gasoline truck (LDGT1)" means a light duty truck 1          100 of the Code of Virginia as a motor vehicle and that:
using gasoline as its fuel.                                               1. Is designed for the transportation of persons or property;
"Light duty gasoline truck (LDGT2)" means a light duty truck 2            and
using gasoline as its fuel."                                              2. Is powered by an internal combustion engine.
Light duty truck (LDT)" means any affected motor vehicle
                                                                        "Motor vehicle dealer" means a person who is licensed by the
which (i) has a loaded vehicle weight or GVWR of 6,000                  Department of Motor Vehicles in accordance with §§ 46.2-
pounds or less and meets any one of the criteria below; or (ii)         1500 and 46.2-1508 of the Code of Virginia.
is rated at more than 6,000 pounds GVWR but less than
8,500 pounds GVWR and has a basic vehicle frontal area of               "Motor vehicle inspection report" means a printed certificate of
45 square feet or less; and meets one of the following criteria:        emissions inspection that is a report of the results of an
                                                                        emissions inspection. It indicates whether the motor vehicle
  1. Designed primarily for purposes of transportation of               has (i) passed, (ii) failed, or (iii) obtained a temporary
  property or is a derivation of such a vehicle.                        emissions inspection waiver. It may also indicate whether the
  2. Designed primarily for transportation of persons and has           emissions inspection could not be completed due to an
  a capacity of more than 12 persons.                                   exhaust dilution or an engine condition that prevents the
                                                                        inspection from being completed. The report shall accurately
  3. Equipped with special features enabling off-street or off-         identify the motor vehicle and shall include inspection results,
  highway operation and use.                                            recall information provided by the department, warranty and
"Light duty truck 1" or " (LDT1)" means any affected motor              repair information, and a unique identification number.
vehicle which meets the criteria above and is light duty truck          "Motor vehicle owner" means any person who owns, leases,
rated at 6,000 pounds GVWR or less. LDT1 is a subset of                 operates, or controls a motor vehicle or fleet of motor
light duty trucks.                                                      vehicles.
"Light duty truck 2" or " (LDT2)" means any affected motor
vehicle which meets the criteria above and is light duty truck

Volume 20, Issue 24                               Virginia Register of Regulations                           Monday, August 9, 2004

                                                                   10
                                                                                               Proposed Regulations
"Nonconforming vehicle" means a vehicle not manufactured                "Order" means any decision or directive of the board or the
for sale in the United States to conform to emissions                   director, including orders, consent orders, and orders of all
standards established by the federal government.                        types rendered for the purpose of diminishing or abating the
                                                                        causes of air pollution or enforcement of this chapter. Unless
"Normal business hours" for emissions inspection stations,              specified otherwise in this chapter, orders shall only be issued
means a daily eight-hour period Monday through Friday,                  after the appropriate administrative proceeding.
between the hours of 8 a.m. and 6 p.m., with the exception of
national holidays, state holidays, temporary closures noticed           "Original condition" means the condition of the vehicle, parts,
to the department and closures due to the inability to meet the         and components as installed by the manufacturer but not
requirements of this chapter. Nothing in this chapter shall             necessarily to the original level of effectiveness.
prevent stations from performing inspections at other times in
addition to the "normal business hours." Emissions inspection           "Owner" means any person who owns, leases, operates,
stations may, with the approval of the department, substitute           controls or supervises a facility or motor vehicle.
a combined total of eight hours, between 8 a.m. and 6 p.m.,             "Party" means any person who actively participates in       the
over a weekend period for one weekday as their "normal                  administrative proceeding or offers comments through        the
business hours" for conducting emission inspections.                    public participation process and is named in                the
Emissions inspection stations shall post inspection hours.              administrative record. The term "party" also means          the
"Northern Virginia emissions inspection program" means the              department.
emissions inspection program required by this chapter in the            "Person" means an individual, corporation, partnership,
Northern Virginia program area.                                         association, a governmental body, a municipal corporation, or
"Northern Virginia program area" or "program area" means                any other legal entity.
the territorial area encompassed by the boundaries of the               "Pollutant" means any substance the presence of which in the
following localities: the counties of Arlington, Fairfax,               outdoor atmosphere is or may be harmful or injurious to
Loudoun, Prince William, and Stafford; and the cities of                human health, welfare or safety, to animal or plant life, or to
Alexandria, Fairfax, Falls Church, Manassas, and Manassas               property, or which unreasonably interferes with the enjoyment
Park.                                                                   by the people of life or property.
"On-board diagnostic system" or " (OBD system)" means the               "Referee station" means those facilities operated or used by
computerized emissions control diagnostic system installed              the department to (i) determine program effectiveness, (ii)
on model year 1996 and newer affected motor vehicles.                   resolve emissions inspection conflicts between motor vehicle
"On-board diagnostic system test" or " (OBD) system test"               owners and emissions inspection stations, and (iii) provide
means an evaluation of the OBD system pursuant to 40 CFR                such other technical support and information, as appropriate,
86.094-17 according to procedures specified in 40 CFR                   to emissions inspection stations and motor vehicle owners.
85.2222 and this chapter.                                               "Reference method" means any method of sampling and
"On-board diagnostic vehicle" or " (OBD vehicle)" means a               analyzing for an air pollutant as described in Appendix A of 40
model year 1996 and newer model affected motor vehicle                  CFR Part 60.
equipped with an on-board diagnostic system and meeting                 "Reinspection" or "retest" means a type of inspection selected
the requirements of 40 CFR 85.2231.                                     by the department or the emissions inspector when a request
"On-road testing" means tests of motor vehicle emissions or             for an inspection is due to a previous failure. Any inspection
emissions control devices by means of roadside pullovers or             that occurs 120 days or less following the most recent
remote sensing devices.                                                 chargeable inspection is a retest.

"Operated primarily" means vehicle operation that constitutes           "Rejected" or "rejected from testing" means that the vehicle
a significant use in the program area. For the purpose of this          cannot be inspected due to conditions in accordance with
definition compliance with the requirements of 9 VAC 5-91-              9 VAC 5-91-420 C or 9 VAC 5-91-420 G 3.
160 and 9 VAC 5-91-170, significant use shall be (i) mileage            "Remote sensing" means the observation, measurement, and
in excess of 6,000 miles per year or (ii) routine operation into        recordation of motor vehicle exhaust emissions from motor
or within the program area as evidenced by recordation of               vehicles while travelling traveling on roadways or in specified
travel in the program area at least three times in a two-week           areas by specialized equipment. Such equipment may use
period by remote sensing or on-road testing. For the purpose            light sensing and electronic stimuli in conjunction with
of compliance with the requirements of 9 VAC 5-91-180,                  devices, including videographic and digitized images, to
significant use shall be routine operation into or within the           detect and record vehicle identification information, such as
program area as evidenced by recordation by remote sensing              registration or other identification numbers.
equipment at least three times in a two-month period with no
less than 30 days between the first and last recordation. The           "Sensitive mission vehicle" means any vehicle which, for law
director may increase the number of observations required for           enforcement or national security reasons, cannot be tested in
compliance determination if, in his discretion, based on                the public inspection system and must not be identified
program experience, such an increase would not significantly            through the fleet testing system. For such vehicles, an
adversely impact the objectives of this chapter.                        autonomous fleet testing system may be established by
                                                                        agreement between the controlling agency and the director.

Volume 20, Issue 24                               Virginia Register of Regulations                       Monday, August 9, 2004

                                                                   11
Proposed Regulations
"Span gas" means gases of known concentration used as                       VSP = vehicle specific power indicator;
references to adjust or verify the accuracy of an exhaust gas
analyzer that are approved by the department and are so                     Sine = the trigonometric function that for an acute angle
                                                                            is the ratio between the side opposite the angle when it is
labeled.
                                                                            considered part of a right triangle and the hypotenuse;
"Standard conditions" means a temperature of 20C (68F)
                                                                            Site Grade in Degrees = slope of road where remote
and a pressure of 760 mm of Hg (29.92 inches of Hg).
                                                                            sensing measurement is taken;
"Standardized instruments" means laboratory instruments
                                                                            K1, K2 and K3 = empirically determined coefficients
calibrated with precision gases traceable to the National
                                                                            specific to the weight class of the vehicle;
Institute of Standards and Technology and accepted by the
department as the standards to be used for comparison                       Speed = rate of motion in miles per hour of vehicle at the
purposes. All candidate instruments are compared in                         time remote sensing measurement is taken; and
performance to the standardized instruments.
                                                                            Acceleration = change in speed in miles per hour per
"Tactical military vehicle" means any motor vehicle designed                second.
to military specifications or a commercially designed motor
vehicle modified to military specifications to meet direct              For light duty vehicles the values for K1, K2 and K3 are
transportation support of combat, tactical, or military relief          respectively 0.22, 0.0954 and 0.0000272. Based on EPA
operations, or training of personnel for such operations.               guidance, the department may develop different values for
                                                                        K1, K2 and K3 that are applicable to heavy duty vehicles or to
"Tampering" means to alter, remove or otherwise disable or              specific classes of light duty vehicles.
reduce the effectiveness of emissions control equipment on a
motor vehicle.                                                          "Virginia Motor Vehicle Emissions Control Program" means
                                                                        the program for the inspection and control of motor vehicle
"Test" means an emissions inspection of a vehicle, or any               emissions established by Virginia Motor Vehicle Emissions
portion thereof, performed by an emissions inspector at an              Control Law.
emissions inspection station, using the procedures and
provisions set forth in this chapter.                                   "Virginia Motor Vehicle Emissions Control Law" means Article
                                                                        22 (§ 46.2-1176 et seq.) of Chapter 10 of Title 46.2 of the
"Test and repair" means motor vehicle emissions inspection              Code of Virginia.
stations which that perform emissions inspections and may
also perform vehicle repairs. No provision of this chapter shall        "Visible smoke" means any air pollutant, other than visible
bar emissions inspection stations from also performing                  water droplets, consisting of black, gray, blue or blue-black
vehicle repairs.                                                        airborne particulate matter emanating from the exhaust
                                                                        system or crankcase. Visible smoke does not mean steam.
"Thermostatic air cleaner" means a system that supplies
temperature-regulated air to the air intake system during               "Zero gas" means a gas, usually air or nitrogen, which is used
engine operation.                                                       as a reference for establishing or verifying the zero point of an
                                                                        exhaust gas analyzer.
"True concentration" means the concentration of the gases of
interest as measured by a standardized instrument which that            9 VAC 5-91-160. Exhaust emission standards for two-
has been calibrated with 1.0% precision gases traceable to              speed idle testing in enhanced emissions inspection
the National Bureau of Standards.                                       programs.

"Two-speed idle test" or " (TSI)" means a vehicle exhaust               A. No motor vehicle subject to the two-speed idle test shall
emissions test, performed in accordance with section (II) of 40         discharge carbon monoxide (CO), or hydrocarbons (HC) in its
CFR Part 51, Appendix B to Subpart S, which measures the                exhaust emissions in excess of standards set forth in Table
concentrations of pollutants in the exhaust gases of an engine          III-A when measured with a certified analyzer system and in
(i) while the motor vehicle transmission is not propelling the          accordance with the two-speed idle inspection procedures
vehicle and (ii) while the engine is operated at both curb idle         prescribed in Part VI (9 VAC 5-91-410 et seq.).
and at a nominal engine speed of 2,500 rpm.                             B. The measured concentration of CO plus CO2 shall be
"Vehicle specific power (VSP)" means an indicator expressed             greater than or equal to 6.0%.
as a function of vehicle speed, acceleration, drag coefficient,         C. The standards in Table III-A may be adjusted by no more
tire rolling resistance and roadway grade that is used to               than one percentage point for CO and 150 ppm for HC in
characterize the load a vehicle is operating under at the time          order to meet the requirements of the Environmental
and place a vehicle is measured by remote sensing                       Protection Agency or the federal Clean Air Act.
equipment. It is calculated using the following formula:
    VSP = 4.39 x Sine (Site Grade in Degrees/57.3) x Speed
    + K1
                                                         3
    x Speed x Acceleration + K2 x Speed + K3 x Speed .
  Where:


Volume 20, Issue 24                               Virginia Register of Regulations                        Monday, August 9, 2004

                                                                   12
                                                                                               Proposed Regulations
                   TABLE III-A.                                         E. All remote sensing measurements used to determine if a
  EXHAUST EMISSION STANDARDS FOR TWO-SPEED                              vehicle exceeds emissions standards prescribed in Table III-B
       IDLE EMISSIONS INSPECTIONS TESTS.                                shall be taken at valid sites under conditions at which the
                                                                        vehicle specific power (VSP) indicator is between 3 and 22.
            Model Year             HC (ppm)          CO (%)             Standards for NO shall be corrected for VSP using the
                                                                        following formula:
      For idle test and 2500
      RPM test for vehicles                                                 NO standard = Low Range Standard + (VSP-3)/
      up to 8500 pounds                                                     19 x (High Range Standard – Low Range Standard).
      GVWR:                                                                 Where:
        1996 & later                  110             0.75
        1990-95                       125              1.0                  Low Range Standard = the smaller values in Table III-B
        1981-89                       220              1.2                  in the NO (ppm) Range column;
        1980                          220              2.0                  VSP = vehicle specific power indicator; and
        1975-79                       400              4.0
        1970-74                       600              6.0                  High Range Standard = the larger values in Table III-B in
        1968-69                       800              8.0                  the NO (ppm) Range column.

      For vehicles from 8501                                            F. The department may adjust the standards in Table III-B if it
      to 10000 pounds                                                   is determined that the a standard is causing a false failure
      GVWR:                                                             confirmation test pass rate in excess of 20% or less than
         1997 & later                 125             0.75              5.0% as measured by the results of emissions inspections at
         1991-96                      150              1.0              emissions inspection stations. Such adjustments may be for
                                                                        specific model years models within each model year group
         1981-90                      220              1.2
                                                                        based on manufacturer's emissions control technology.
         1980                         220              2.0
         1975-79                      400              4.0                                 TABLE III-B.
         1970-74                      600              6.0                  EXHAUST EMISSION STANDARDS FOR REMOTE
         1968-69                      800              8.0                                  SENSING.

9 VAC 5-91-180. Exhaust emissions standards for on-                                   Model Year                   CO       HC (ppm)
road testing through remote sensing.                                                                               (%)
                                                                        1977-79, 6000 lb. and less                 10.0       1600
A. No affected motor vehicle shall exceed the emissions
                                                                        1977-79, more than 6000 lb.                12.0       2000
standard for carbon monoxide (CO), the emission standard
                                                                        1980-95, 8500 lb. and less                  4.8        880
for hydrocarbons (HC) or nitric oxide (NO), whichever is
                                                                        1980-95, more than 8500 lb.                 6.0        880
selected for use, or both, set forth in Table III-B when
measured with a remote sensing device and in accordance                 1996-98, 6000 lb. and less                  3.6        660
with the inspection procedures prescribed in Part XII (9 VAC            1996-98, more than 6000 lb.                 5.0        660
5-91-740 et seq.).                                                      1999 and newer, 6000 lb. and less          3.60        440
                                                                        1999 and newer, more than 6000 lb.          5.0        440
B. Any affected motor vehicle determined to have exceeded
any emissions standards in Table III-B at least twice within 90
days when measured by a remote sensing device in                                     Standards Beginning January 1, 2004
accordance with the procedures of Part XII (9 VAC 5-91-740                                                                  NO (ppm)
et seq.) may be subject to an emissions inspection at an                      Period/Model Year/                    HC       Range1
                                                                                 Vehicle Type          CO (%)     (ppm)    Low to High
emissions inspection station in accordance with Part XII
                                                                        Pre-1981 – LDGT (1 or 2)        7.0%       1000
(9 VAC 5-91-740 et seq.) or a civil charge in accordance with
                                                                        Pre-1981 – LDGV                 7.0%       1000
§ 46.2-1178.1 B of the Code of Virginia, or both.
                                                                        Pre-1981 – HDGV                 7.0%       1000
C. Beginning January 1, 2004, motor vehicles that exceed the            1981 to 1985 – LDGT (1 or 2)    6.0%       800     1500–2000
emissions standards in Table III-B two days in any 120-day              1981 to 1985 – LDGV             6.0%       750     1200–1800
period shall be considered to have violated the emissions               1981 to 1985 – HDGV             7.0%       750
standards. In addition, the department may use the high                 1986 to 1990 – LDGT (1 or 2)    5.5%       700     1200–1800
emitter index as an additional screening requirement.                   1986 to 1990 – LDGV             5.5%       650     1000–1600
                                                                        1986 to 1990 – HDGV             6.5%       750
D. Beginning January 1, 2005, or later date based on analysis           1991 to 1995 – LDGT (1 or 2)    5.0%       650     1200–1800
of remote sensing failure rates and confirmation test results,          1991 to 1995 – LDGV             5.0%       600     1000–1600
the department may determine that an affected vehicle is a              1991 to 1995 – HDGV             6.0%       700
high emitter if the vehicle exceeds the standards in Table III-B        1996 and newer LDGT (1 or 2)    4.0%       450     600–900
once and is also determined to have a high emitter index of             1996 and newer LDGV             4.0%       450     600–900
greater than 75.                                                        1996 and newer HDGV             5.0%       600




Volume 20, Issue 24                               Virginia Register of Regulations                       Monday, August 9, 2004

                                                                   13
Proposed Regulations
                                                                           1. Up to 5.0% of the number of vehicles measured during
    Standards Beginning January 1, 2005, and later - Two or                any 30-day period may be identified as clean screen
                More On-Road Measurements                                  vehicles.
                                                       NO (ppm)
     Period/Model Year/|                      HC        Range              2. Vehicles that have the cleanest measurements based on
         Vehicle Type            CO (%)     (ppm)     Low to High          an average of at least three measurements (taken on three
Pre-1981 – LDGT (1 or 2)          7.0%       1000                          different days) may be identified as clean screen vehicles.
Pre-1981 – LDGV                   7.0%       1000
Pre-1981 – HDGV                   7.0%       1000                          3. Vehicles with no measurements exceeding the standards
1981 to 1985 – LDGT (1 or 2)      6.0%       800     1500–2000             in Table III B may be identified as clean screen vehicles.
1981 to 1985 – LDGV               6.0%       750     1200–1800
                                                                         H. At the discretion of the director, vehicles identified as clean
1981 to 1985 – HDGV               7.0%       750
                                                                         screen vehicles in accordance with subsection G of this
1986 to 1990 – LDGT (1 or 2)      5.5%       700     1200–1800
                                                                         section may be recorded as having passed the next
1986 to 1990 – LDGV               5.5%       650     1000–1600
1986 to 1990 – HDGV               6.5%       750
                                                                         emissions inspection required by § 46.2-1183 of the Code of
1991 to 1995 – LDGT (1 or 2)      4.0%       550     1000–1500           Virginia and the result shall be entered into the emissions
1991 to 1995 – LDGV               4.0%       500     900–1400            inspection record for that vehicle.
1991 to 1995 – HDGV               6.0%       700                         9 VAC 5-91-740. General requirements.
1996 and newer LDGT (1 or 2)      3.0%       350     500–800
1996 and newer LDGV               3.0%       350     500-800             A. The on-road testing program shall conform, at a minimum,
1996 and newer HDGV               5.0%       600                         to the requirements of 40 CFR 51.371 and § 46.2-1178.1 of
                                                                         the Code of Virginia applicable to the program area in which it
    January 1, 2005 and later - Single On-Road Measurement               is employed.
     Vehicle must have High Emitter Index of 75% or Higher
                                                       NO (ppm)          B. The emissions standards for the on-road remote sensing
      Period/Model Year/                      HC        Range            program are those contained in Table III-B in 9 VAC 5-91-
         Vehicle Type            CO (%)     (ppm)     Low to High        180.
Pre-1981 – LDGT (1 or 2)          7.0%       1000
Pre-1981 – LDGV                   7.0%       1000                        C. The on-road testing program and the emissions standards
Pre-1981 – HDGV                   7.0%       1000                        applicable thereto shall apply to affected motor vehicles
1981 to 1985 – LDGT (1 or 2)      6.0%       800     1500–2000           registered in the program area and any affected motor
1981 to 1985 – LDGV               6.0%       750     1200–1800           vehicles operated primarily in the program area.
1981 to 1985 – HDGV               7.0%       750
1986 to 1990 – LDGT (1 or 2)      5.5%       700     1200–1800           9 VAC 5-91-741. Financial assistance program.
1986 to 1990 – LDGV               5.5%       650     1000–1600           A. Vehicles identified by on-road testing that fail to meet
1986 to 1990 – HDGV               6.5%       750                         emissions standards may qualify for financial assistance for
1991 to 1995 – LDGT (1 or 2)      4.0%       550     1000–1500           emissions-related diagnostic and repair services.
1991 to 1995 – LDGV               4.0%       500     900–1400
1991 to 1995 – HDGV               6.0%       700                         B. Repairs shall be performed by, or under the supervision or
1996 + LDGT (1 or 2)              3.0%       350     500–800             approval of, a certified emissions repair technician at a
1996 + LDGV                       3.0%       350     500–800             certified emissions repair facility.
1996 + HDGV                       5.0%       600
                                                                         C. The department will notify owners of vehicles that violate
1
 NO standard = Low Range standard + (Actual VSP-3)/19 x (High            the remote sensing requirements of 9 VAC 5-91-180. The
Range standard – Low Range Standard)                                     notification will inform owners of the potential for financial
D. For any 30-day period, up to 5.0% of the number of                    assistance and how to apply for the assistance for repairs to
vehicles measured three times which have been detected as                vehicles identified via remote sensing if they meet the
having the cleanest measurements, based on an average of                 eligibility requirements in 9 VAC 5-91-742 and the subsidy
three measurements using on-road testing equipment within                percentage of total eligible repair costs.
the period, may, at the discretion of the director, be recorded          D. For affected motor vehicles subject to a confirmation test,
as having passed an emissions inspection and such result                 the department may provide a subsidy of up to 50% of the
shall be entered into the emissions inspection record for that           amount spent on emissions related repairs up to a maximum
vehicle.                                                                 of 50% of the waiver amount for repairs performed to comply
E. Remote sensing measurements used for such purposes                    with the emission standards prescribed in 9 VAC 5-91-160
shall be from at least two different on-road testing locations.          and 9 VAC 5-91-170. The director may increase or decrease
                                                                         the subsidy percentage depending upon the number of
F. Remote sensing measurements obtained while a vehicle is               applications received, average expenditure for repair, and
decelerating shall not be used for the purpose described in              availability of funds.
this section.
                                                                         9 VAC 5-91-742. Eligibility requirements for financial
G. Beginning January 1, 2005, clean screen vehicles will be              assistance.
identified using on-road testing equipment measurements
based on all of the following criteria:                                  A. In order to qualify for financial assistance, a person shall
                                                                         meet the following requirements, as applicable:

Volume 20, Issue 24                                 Virginia Register of Regulations                       Monday, August 9, 2004

                                                                    14
                                                                                               Proposed Regulations
  1. Be the registered owner of an eligible vehicle for which             1. Any invoices for emissions-related repairs performed
  all appropriate registration fees for the vehicle with the              pursuant to a notification of violation issued under 9 VAC 5-
  Department of Motor Vehicles have been paid.                            91-750 B prior to applying financial assistance.
  2. Have a household income that is less than or equal to                2. Any emissions repair data forms from the certified
  133% of the federal Poverty Guidelines, as published by                 emissions repair facility supporting the repair invoices.
  the United States Department of Health and Human
  Services; and                                                           3. Any other information as may be required by the
                                                                          department to determine eligibility and/or compliance.
  3. Spend a minimum copayment of one hundred dollars on
  emissions-related repairs at a certified vehicle emissions            9 VAC 5-91-750. Operating procedures; violation of
  repair facility. Money spent to correct tampered emissions            standards.
  control systems or to make a vehicle test ready shall not be          A. Remote sensing equipment shall be operated in
  included in the copayment. Repairs shall meet the                     accordance    with   the   remote    sensing  equipment
  requirements of 9 VAC 5-91-741 B.                                     manufacturers operating instructions and any contract or
B. In order to qualify for financial assistance, a vehicle shall        agreement between the department and the equipment
be an affected motor vehicle that:                                      operator.

  1. Is subject to the provisions of § 46.2-1177 of the Code of         B. Motor vehicles determined by remote sensing equipment to
  Virginia;                                                             have exceeded the applicable emissions standard in Table III-
                                                                        B in 9 VAC 5-91-180 twice within 90 days shall be considered
  2. Can be driven under its own power to the emissions                 to have violated such emissions standards.
  repair facility;
                                                                          1. Owners of such motor vehicles shall will be issued a
  3. Is currently registered or is operated primarily in the              notice of violation and shall be subject to the civil charges
  program area;                                                           in 9 VAC 5-91-760 unless waived pursuant to this section.
  4. Has a current and valid Virginia Motor Vehicle Safety                2. Upon a determination by the department that a violation
  Inspection as provided in §§ 46.2-1157 and 46.2-1158 of                 has occurred, motorists shall will be informed by the
  the Code of Virginia; and                                               department or its representative of the failure to comply
                                                                          with emissions standards and of the dates, times, and
  5. Has been issued a notice of violation under 9 VAC 5-91-              places such remote sensing measurement occurred.
  750 B.
                                                                        C. Civil charges assessed pursuant to this part shall will be
C. The owners of the following vehicles are not eligible for            waived if, within 90 30 days of the date of the notice of the
financial assistance:
                                                                        violation, the motor vehicle owner provides proof to the
  1. A vehicle undergoing a transfer of ownership.                      department that since the date of the violation, (i) the vehicle
                                                                        has passed a vehicle emissions inspection, (ii) the vehicle has
  2. A vehicle being initially registered in Virginia.                  received an emissions inspection waiver, or (iii) the vehicle
  3. A nonconforming vehicle.                                           has qualified for a waiver within the 12 months prior to the
                                                                        violation. :
  4. A vehicle powered exclusively by a clean special fuel.
                                                                          1. Since the date of the violation, the vehicle has passed, or
  5. A vehicle owned or operated by a fleet.                              received a waiver as the result of, a confirmation test, or
  6. A vehicle registered to a nonprofit organization.                    2. Within the 12 months prior to the violation, the vehicle
                                                                          had received an emissions inspection waiver.
  7. A vehicle owned or leased by a commercial entity.
                                                                        D. The requirement for an emissions inspection or payment of
  8. A vehicle owned or leased by a government entity.
                                                                        civil charges, based on a remote sensing failure, may be
  9. A vehicle registered as an antique vehicle.                        waived by the department if the affected motor vehicle in
                                                                        question (i) is, by virtue of its registration date, required to
  10. A vehicle that is unable to complete a motor vehicle              have an emissions inspection within 90 days three months of
  emissions inspection according to 9 VAC 5-91-410 through              the date of the notice of violation remote sensing
  9 VAC 5-91-490.                                                       measurement that indicates the vehicle has exceeded the
9 VAC 5-91-743.         Application       and     documentation         applicable standards in Table III-B in 9 VAC 5-91-180 or (ii)
requirements.                                                           has received a waiver within the 12 months prior to the
                                                                        violation.
A. Persons seeking financial assistance shall submit a
completed application to the department or its designee with            E. For 1996 and newer model vehicles with OBD, the director
original signature.                                                     may require that the vehicle pass an exhaust test (ASM or
                                                                        two-speed idle) in addition to the OBD system test.
B. The application shall include copies of the following
documents, as applicable:



Volume 20, Issue 24                                  Virginia Register of Regulations                    Monday, August 9, 2004

                                                                   15
Proposed Regulations
9 VAC 5-91-760. Schedule of civil charges.
A. No charge shall exceed an adjusted maximum charge of
$450 adjusted annually by using 1990 as the base year and
applying the consumer price index.
B. For violations measured in accordance with 9 VAC 5-91-
750 B to be up to 120% of the applicable standard, the charge
shall not exceed 20% of the adjusted maximum charge in
subsection A of this section.
C. For violations measured in accordance with 9 VAC 5-91-
750 B to be more than 120% but not exceeding 140% of the
applicable standard, the charge shall not exceed 40% of the
adjusted maximum charge in subsection A of this section.
D. For violations measured in accordance with 9 VAC 5-91-
750 B to be more than 140% but not exceeding 160% of the
applicable standard, the charge shall not exceed 60% of the
adjusted maximum charge in subsection A of this section.
E. For violations measured in accordance with 9 VAC 5-91-
750 B to be more than 160% but not exceeding 180% of the
applicable standard, the charge shall not exceed 80% of the
adjusted maximum charge in subsection A of this section.
F. For violations measured in accordance with 9 VAC 5-91-
750 B to be over 180% of the applicable standard, the charge
shall not exceed the adjusted maximum charge in subsection
A of this section.
G. Civil charges assessed pursuant to this part shall be paid
into the state treasury according to § 46.2-1178.1 of the Code
of Virginia.
H. For the purpose of applying a civil charge as prescribed in
this section, the degree of violation shall be determined by
averaging the readings highest percentage by which the
emissions standard was exceeded for each remote sensing
measurement in which exceed at least one of the standard
applicable standards was exceeded.
         VA.R. Doc. No. R03-196; Filed July 21, 2004, 9:47 a.m.




Volume 20, Issue 24                                       Virginia Register of Regulations   Monday, August 9, 2004

                                                                        16

								
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