Basis and Purpose
This rule is promulgated pursuant to sections
24-4-101 through
24-4-108,
42-4-401 through
42-4-414,
42-9-101 through
42-9-113, and
25-7-122.1, C.R.S.
Purpose: This rule establishes licensing requirements, and
operational and enforcement standards, for the Diesel Inspection Program, and
sets out the process for an administrative hearing.
1.0
DEFINITIONS
1.1 Additional definitions and substantive
regulations are found in the Air Quality Control Commission's Regulation 12
Part B;
5
CCR 1001-15.
1.2 "AQCC" means the Colorado Air Quality
Control Commission as referenced in section
42-4-403, C.R.S. The AQCC is the
rulemaking body responsible for Regulation 12 Part B;
5 CCR
1001-15.
1.3 "Business" means an estate, sole
proprietorship, trust, firm, partnership, limited partnership, limited
liability partnership, limited liability company, association, corporation, or
other business entity.
1.4
"Cancellation of license" means an action by the Department rendering a license
invalid.
1.5 "Certification of
Emissions Control" (CEC) means either a Certification of Diesel Smoke Opacity
Compliance or a Certification of Diesel Smoke Opacity Waiver issued to the
owner of a diesel vehicle which is subject to the diesel opacity inspection
program in order to indicate the status of inspection requirement compliance of
such a vehicle.
1.6 "Data Media"
means the external electronic storage device used to record the results of the
Diesel Opacity Inspection.
1.7
"Department" means the Colorado Department of Revenue.
1.8 "Diesel Opacity Inspection Station" means
a facility that meets the requirements established by the Commission, is
licensed by the Executive Director, and is so equipped as to enable a diesel
vehicle emissions-opacity inspection to be performed.
1.9 "Diesel Opacity Inspector" means a person
possessing a valid license to perform diesel emissions-opacity
inspections.
1.10 "Diesel Opacity
Inspection Program" means a program outlining the Diesel Inspector and Diesel
Inspection Station with a purpose of reducing particulate air pollution within
the program area, using the regulatory basis of Regulation 12,
5 CCR
1001-15 and
1 CCR
204-1 Rule 1.
1.11 "Diesel Vehicle Inspection Report
(DVIR)" means the official document generated by a diesel inspection station to
record completion of a diesel opacity inspection.
1.12 "Division" means the Air Pollution
Control Division of the Colorado Department of Public Health and
Environment.
1.13 "Full
investigation" means a reasonable ascertainment of the underlying facts on
which the Department's action is based.
1.14 "Inspector Number" is the license number
assigned by the Department to each licensed Diesel Opacity Inspector.
1.15 "Regulation 12" means Part B of
Regulation 12, Reduction of Diesel Vehicle Emissions adopted by the Air Quality
Control Commission, also known as
5 CCR
1001-15.
1.16 "Revocation of a license" means that the
station or inspector is no longer licensed to provide the services authorized
under Part 4 of Article
4 of Title
42 C.R.S.
1.17 "Suspension of a license" means that the
station or inspector is not authorized for a defined period of time to provide
services under Part 4 of Article
4 of Title
42 C.R.S.
2.0
GENERAL
REQUIREMENTS
2.1 Application
for a Diesel Opacity Inspection Station or Diesel Opacity Inspector license
shall be made on forms issued by the Department.
2.2 No person or Business shall represent
that they are a licensed Diesel Opacity Inspector or licensed Diesel Opacity
Inspection Station unless they have a valid license in good standing issued by
the Department.
2.3 A Diesel
Opacity Inspection Station shall not allow any person who does not have a valid
Diesel Opacity Inspector license to perform any portion of a diesel opacity
inspection.
2.4 A Certification of
Diesel Smoke Opacity Compliance shall only be issued by a licensed Diesel
Opacity Inspection Station or authorized Division personnel.
2.5 A Certification of Diesel Smoke Opacity
Waiver shall only be issued by authorized Department Personnel.
2.6 Diesel Opacity Inspection Program
licensees shall cooperate with the Department during the course of inspections,
audits, and investigations.
2.7 The
Department may cancel, suspend, or revoke a license for a violation of Part 4
of Article
4 of Title
42, section
25-7-122.1 C.R.S., Regulation 12,
or this Rule.
3.0
STATION
LICENSES
3.1 All Diesel
Opacity Inspection Station licenses shall be posted in a conspicuous place on
the licensed premises, in a location accessible to the public and subject to
approval by the Department.
3.2
Diesel Opacity Inspection Stations, including registered agents, Businesses,
and owners, are responsible for the conduct of their licensed
inspectors.
3.3 The Department may
deny a Diesel Opacity Inspection Station license application from any
individual with a previous inspector supervisory role, or business if any of
the partners, officers, registered agents, or stakeholders of a Diesel Opacity
Inspection Station, had an association with the station at a time when the
station license had been suspended or revoked by the Department.
3.4 Proof of station liability insurance
coverage with a minimum of $100,000 will be required for initial issuance and
renewal of all Diesel Opacity Inspection Station licenses.
4.0
INSPECTOR LICENSES
4.1 Diesel Opacity Inspectors must keep their
current mailing address on file with the Department. If a Diesel Opacity
Inspector changes his or her mailing address, he or she must notify the
Department of that change within 14 days.
4.2 All Diesel Opacity Inspector licenses
shall be posted in a conspicuous place on the licensed premises, in a location
accessible to the public and subject to approval by the Department.
4.3 The Department will cancel a Diesel
Opacity Inspector's license at the request of the licensee.
4.4 Diesel Opacity Inspectors may be
simultaneously employed at more than one Diesel Opacity Inspection
Station.
5.0
LICENSE FEES AND
TERMS
5.1 The initial fee
for a Diesel Opacity Inspection Station license is $25.00.
5.2 The annual renewal fee for a Diesel
Opacity Inspection Station license is $10.00.
5.3 The initial fee for a Diesel Opacity
Inspector license is $10.00.
5.4
The annual renewal fee for a Diesel Opacity Inspector license is
$5.00.
5.5 Diesel Opacity
Inspectors who are employed at more than one Diesel Opacity Inspection Station
must have a separate license for each station and will be charged an initial
and renewal license fee for each license, except in cases of common ownership
of multiple locations. Inspections then may be conducted under a common license
with the approval of the Department.
5.6 Licenses are valid for twelve months from
the issue date unless the license is cancelled, suspended, or revoked, or the
licensee is required to re-qualify.
5.7 The fee for a license not renewed on or
before the date of expiration is the initial fee.
5.8 Upon expiration, suspension,
cancellation, or revocation of a Diesel Opacity Inspection Station license, the
station and Diesel Opacity Inspectors employed at that station are no longer
authorized to perform diesel opacity inspections at such suspended station. If
a Diesel Opacity Inspector is validly employed and licensed at another Diesel
Opacity Inspection Station, then such Diesel Opacity Inspector may perform
inspections at such other station so long as that Inspector was not the cause
of the suspension, cancellation, or revocation of any other Diesel Opacity
Inspection Station. [ATTENTION: Pursuant to Section
42-3-105(1)(c)(I) and
(II), C.R.S., a station and/or inspector may
not perform a VIN inspection without a valid license.]
5.9 License fees collected by the Department
are not refundable.
6.0
USE
OF INSPECTOR NUMBER
6.1 Each
licensed Diesel Opacity Inspector shall be assigned a unique inspector license
number by the Department.
6.2 A
licensee shall use only the license number and access code assigned to
him/her.
6.3 An inspector shall
keep his or her access code secure and shall not reveal it to another person or
allow another person to use it.
6.4
Inspectors shall report any unauthorized issuance or use of any DVIRs and CECs
to the Department within 24 hours of discovering the unauthorized issuance or
use.
6.5 Inspectors are presumed to
have performed the inspections for all DVIRs and CECs bearing their inspector
number.
7.0
DIESEL PROGRAM
STATION OPERATIONS
7.1
Diesel Opacity Inspection Station owners, supervisors, or employees shall not
modify, alter, tamper, or otherwise affect any portion of a vehicle's emissions
control systems in any manner that renders the system inoperable or places the
vehicle in a non-certified emissions control configuration.
7.2 Diesel Opacity Inspection Stations shall
be open for business during posted business hours.
7.3 Licensees shall not charge more than the
posted fee for a Diesel Opacity Inspection. This fee is not to exceed one hour
of the facility's shop labor rate.
7.4 A Diesel Opacity Inspection Station
inspection computer with color print access shall be available on site to the
Department during posted business hours.
7.5 Diesel Opacity Inspection Stations shall
have at least one licensed Diesel Opacity Inspector on the licensed premises
when open for business.
7.6
Licensees shall conduct all Diesel Opacity Inspection Station operations in
accordance with applicable Colorado state statutes, Regulation 12, and
Department rules.
7.7 Licensees
shall not allow, nor fail to prevent, performance of any part of a Diesel
Opacity Inspection by an unlicensed person.
7.8 Licensees shall conduct only those
inspections authorized by the type of license held.
7.9 Licensed Diesel Opacity Inspection
Stations shall post, in a conspicuous location, a Department approved sign
identifying the facility as a licensed Diesel Opacity Inspection
Station.
7.10 All publications and
signs issued by the Department shall be posted in a conspicuous location on the
licensed premises.
7.11 Licensees
shall not offer or perform diesel opacity inspections at a location other than
the location for which their license was issued.
7.12 Inspectors shall not issue a CEC when
the inspector knew or should have reasonably known that the vehicle did not
satisfy the requirements for issuance of a CEC.
7.13 Diesel Opacity Inspection Stations are
required to give 24-hour advanced notice to the Department of station closures
during posted business hours.
7.14
No additional fees may be added to the posted inspection fee.
8.0
EQUIPMENT REQUIREMENTS AND
OPERATION
8.1 All Diesel
Opacity Inspection Stations shall have, at all times, adequate facilities,
equipment and safety equipment to perform all elements of a Diesel Opacity
Inspection, including all tools and equipment required by Regulation
12.
8.2 All tools and inspection
equipment shall be maintained in a manner that permits proper operation in
accordance with the requirements of Regulation 12, applicable statutes, and
Department rules.
8.3 All computer
equipment that is networked, interfaced, or connected to any internet or any
other communication device or system must be approved by the
Department.
8.4 Any computer data
tamper lockout or any lockout shall be reported to the Department verbally
within 24 hours.
8.5 Computer
lockouts must be reset by the Department or the Division.
8.6 Licensees shall not use the dedicated
Diesel Opacity Inspection computer for purposes not authorized by the
Department.
9.0
AUDITS, FORMS
& DOCUMENTATION
9.1 The
Department monitors the activities of licensed Diesel Opacity Inspection
Stations and Diesel Opacity Inspectors through ongoing site inspections,
audits, investigations, consumer complaints, data analysis, performance
observations, and other reasonable quality assurance methods.
9.2 The Department may conduct on-site audits
at any time during posted business hours.
9.3 If the failure of a dynamometer or
opacity meter during an audit creates a safety and/or testing accuracy issue,
repairs may be completed during the audit; however, when repairs cannot be
completed during the audit, the inspection computer will be locked out until
repairs are completed and a re-audit can be performed.
9.4 Diesel Opacity Inspection Stations are
accountable for all Department documents issued to both the station and its
inspectors.
9.5 Upon cancellation,
suspension, or revocation of a license, licensees shall surrender to the
Department all licenses, forms, Data Media, and documents issued by or
purchased from the Department.
9.6
Licensees shall verify that all DVIRs and CECs issued are complete, accurate,
legible, and are properly printed with all information appearing in the correct
location on the forms.
9.7 Fees
collected for licensing are non-refundable.
9.8 Licensees shall accurately record vehicle
or test data in the computer system.
10.0
SUSPENSION AND REVOCATION OF
LICENSES
10.1 The Department
may summarily suspend a licensee pursuant to section
24-4-104(4)(a),
C.R.S.
10.2 The Department may
suspend or revoke a licensee pursuant to section
24-4-104(3)(a),
C.R.S.
10.3 Any conduct by a
licensee that impedes the Department's ability to oversee, audit, or
investigate matters under the Diesel Opacity Inspection Program, including
behavior that is threatening, disruptive, or abusive, may be cause for license
revocation.
10.4 The Department may
suspend or revoke the license of a licensee convicted, as defined in section
42-1-102(19),
C.R.S., of a misdemeanor under the Colorado Air Pollution Prevention and
Control Act, section
25-7-122.1, C.R.S.; convicted of a
misdemeanor under section
42-4-313, C.R.S.; or of a licensee
that has violated the Motor Vehicle Repair Act, section
42-9-101, et. seq.,
C.R.S.
10.5 A licensee who receives
notice pursuant to subsection 10.2 may within 30 days after the date of the
notice:
10.5.1 Submit a written response
setting forth data, views, and arguments with respect to the facts or conduct;
or,
10.5.2 Comply with all lawful
requirements or submit a plan acceptable to the Department to bring the
licensee into compliance with all lawful requirements.
10.6 The Department may institute a
proceeding to suspend or revoke a license pursuant to subsection 10.2 if the
Department determines that the licensee failed to:
10.6.1 Submit a written response pursuant to
subsection 10.5, or that the response does not rebut the evidence of such facts
or conduct; or,
10.6.2 Comply with
all lawful requirements or the plan submitted by the licensee is not acceptable
to the Department.
10.7
Such proceeding shall be instituted by filing a Notice to Set and Order to Show
Cause with the Hearings Division as set forth in Rule 11.
10.8 Any Notice from the Department, required
pursuant to these rules, will be provided via first class mail addressed to the
last address furnished to the Department in writing by a licensee or via
in-person service.
10.9 The
Department may consider mitigating and aggravating factors when considering the
imposition and duration of a sanction. These factors include, but are not
limited to:
10.9.1 Actions taken by the
licensee to prevent violations.
10.9.2 The licensee's past audit
history.
10.9.3 The seriousness and
frequency of violations.
10.9.4
Corrective action(s) taken by the licensee and the effectiveness of such
measures.
10.9.5 Willfulness or
deliberateness of the violation.
10.9.6 Likelihood of recurrence of the
violation.
10.9.7 A violation of
the Colorado Air Pollution Prevention and Control Act, section
25-7-122.1, C.R.S., of section
42-4-313, C.R.S., or of the Motor
Vehicle Repair Act, section
42-9-101, et. seq.,
C.R.S.
10.10 The
Department may consider whether to impose remedial training requirements to
correct performance deficiencies when considering imposition of a
sanction.
11.0
ADMINISTRATIVE
HEARINGS
11.1 If the
Department institutes proceedings to suspend or revoke a license pursuant to
Rule 10.0, it shall serve a Notice to Set and Order to Show Cause on the
licensee and file the Notice and Order with the Hearings Division. The Notice
and Order shall explain the nature of any adjudicatory hearing, the legal
authority and jurisdiction under which the hearing is to be held, and the
matters of fact and law asserted at least thirty (30) days prior to the
hearing.
11.1.1 Any licensee given such
notice shall file a written answer within 30 days after the service or mailing
of such notice. If the licensee fails to answer, upon motion of the Department,
default may be entered.
11.2 Any notice provided pursuant to this
section shall be served personally or by mailing by first-class mail to the
last address furnished to the Department by the licensee.
11.3 The Hearings Division will issue a
Notice to Set the hearing on the matter, for a date on which a hearing date
will be cleared with the Department and the Licensee.
11.4 Any proceeding shall be conducted in
accordance with section
24-4-105, C.R.S.
The Department adopts the Air Quality Control Commission's
Regulation 12, Part B, found at
5 CCR
1001-15, current as of August 18, 2016, as part of
1 CCR
204-1 of the Department of Revenue, Division of Motor
Vehicle's Regulations. The Air Quality Control Commission's Regulation 12, Part
B, was adopted on October 20, 2011. The Code of Colorado Regulations is
compiled and publish by the Colorado Secretary of State's Office, and is
published on the Colorado Secretary of State's website for public inspection,
pursuant to section
24-4-103(11),
C.R.S., at www.sos.state.co.us,
and an unofficial print version can be purchased from LexisNexis. The
Department's Rule does not include any later amendments or editions of the
incorporated Air Quality Control Commission's Regulation 12, Part B. Certified
copies of the complete text of the incorporated Air Quality Control Commission
Regulation 12, Part B, are maintained at the Colorado Department of Revenue,
Division of Motor Vehicles, 1881 Pierce Street, Room 142, Denver, Colorado
80214, and may be inspected by contacting the Records Custodian at that address
during normal business hours. The incorporated material may also be examined at
any state publications depository library. Certified copies shall be provided
at no cost upon request.