Will Congress Reopen The Clean Air Act?

During the debate over the Clean Air Act Amendments of 1990, emissions Inspection and Maintenance (I/M) was touted as holding tremendous potential for the automotive aftermarket. Large increases in parts sales and work for shops were anticipated, as well as a need for additional technicians. Coalitions were formed to meet the needs of a much larger independent and dealer repair industry.

What happened? Clearly, even prior to the 1994 election, voters were sending messages that they did not like big government. This call for a more decentralized form of government rang first in California. Their governor sent a flexible I/M program to the U.S. Environmental Protection Agency (EPA). After much discussion, a "hybrid" I/M program was approved for the state.

After California, many other states began submitting different types of I/M programs to an EPA that was becoming increasingly frustrated by changes from the original mission of the Clean Air Act Amendments. In Maine, the I/M program stalled. Pennsylvania was publicly divided between a centralized and decentralized program. Virginia's governor took the lead in the federal courts to challenge the role of the EPA in determining the most optimum program for his state. Other state programs began to fall apart.

This turmoil was not limited to state and federal governments. The centralized testing companies saw their stock values plummet. Layoffs began to occur. Most recently, the testing companies formed a trade association to better present their case. Just last week, two of the largest testing companies announced a proposed merger. The twists and turns in the I/M debate have led to a point where some are now calling for a reopening of the Clean Air Act.

This leads us to review what is now occurring at the federal level. With the heightened role of governors in the new Congress, the I/M debate has been at the top of the list. During an early 1995 meeting in Williamsburg, Va., the governors called for I/M mandates to be repealed. This outcry has continued in individual states. At a recent press conference, the governor of Pennsylvania called on Congress to move on reopening the Clean Air Act.

During the mark-up for the fiscal year 1997 EPA moneys, language in opposition to I/M was inserted. The debate over these moneys has continued throughout the budget process. With these developments in mind, let's look more closely at the changes in I/M brought about by the Highway bill, as well as a proposal to reopen and amend the Clean Air Act.

The Highway Bill
In the National Highway Systems legislation, which has been signed by the president, test-only I/M is not required in non-attainment areas. The new law eliminates the automatic 50 percent emission discount for decentralized I/M. The language addresses the outcry from our nation's governors by requiring the EPA to approve a state's revised plan with full I/M emission reduction credits, regardless of the I/M test system, based on good faith estimates by the states. Interim approval of a state's plan shall expire 18 months after approval is given if the data collected by the state can demonstrate that the credits claimed by its decentralized or hybrid I/M program are appropriate.

As the head of the EPA's Office of Mobile Resources stated, the new law will allow the EPA more flexibility in evaluating state I/M plans. The agency would be able to grant full interim approval to a plan that demonstrates "a good faith effort" to meet the compliance obligations under the act.

However, this new law has not been enough to satisfy members of Congress who still believe the Clean Air Act Amendments of 1990 go too far. A task force for the House and Senate has come up with a series of Clean Air Act amendments to address I/M as well as other unrelated sections of the act. Many I/M provisions seem to duplicate provisions in the National Highway Systems legislation.

The Faircloth Bill
Sen. Lauch Faircloth (R-N.C.), chairman of the Senate Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety, has proposed amendments that address several new items in I/M. First, test-and-repair, test-only or hybrid I/M programs shall be considered equivalent until such time as the EPA demonstrates that an individual state's enhanced program is not equivalent. Such a demonstration shall be based on data collected by the EPA after the completion of two test cycles of the state's enhanced program. Next, the amendment would allow states to set waiver amounts responsive to both air quality and the economic needs of their communities as they deem appropriate. Currently, the law requires a set "waiver" fee of $450. Finally, the amendments would allow states to opt for more efficient biennial tests and various types of testing stations. The credit ultimately given to a program would be based on its actual, not assumed, effectiveness.

After review, these amendments would support a delay in the implementation of state I/M programs. The weakening of the waiver requirement is also of concern to the aftermarket.

The Automotive Service Association (ASA) has been resistant to the reopening of the act for fear that information availability pertaining to on-board diagnostics (OBD) would also be addressed. The current OBD information availability rule protects the independent repair industry. ASA, while supportive of allowing states flexibility in developing I/M programs that meet clean air goals, is concerned about a continued weakening of the I/M rule with regard to time delays, the EPA's enforcement ability and removal of a waiver requirement.

ASA is working to ensure that I/M is protected in federal legislation. Although the amendments to the act were originally intended to occur this year, there is discussion of waiting until 1997 to attempt to reopen the act.

ASA believes that the current emissions debate will also have a long-term impact on safety I/M programs. This can already be seen in Massachusetts where the state's enhanced safety program has been put on hold.

It is critical that the aftermarket not view the I/M debate as a single issue. It impacts information availability as well as the future of all I/M programs.

--The author of this article, Bob Redding, is the Automotive Service Association's (ASA's) Washington representative. He holds a law degree from the George Washington University School of Law. Redding was recently appointed chairman of the Coalition for Safer, Cleaner Vehicles (CSCV).

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AutoInc. Magazine ®, Vol. XLIV No. 3, March 1996