No. ( 1978 )

Dr. Anthony Robbins, Executive Director Colorado Department of Health 4210 East 11th Avenue Denver, Colorado 80220

Dear Dr. Robbins:

QUESTION PRESENTED AND CONCLUSION

You have requested of this office an opinion regarding the availability of funding from the mobile source cash fund for the purpose of developing an inspection/maintenance (I/M) program by February of 1979.

This office has reviewed the statutory provisions regarding creation and use of the highway user's tax fund, we conclude that the use of such funds is authorized for the purpose of effecting a legislatively mandated inspection/maintenance program for automobiles.

ANALYSIS

Highways within the State of Colorado are air contamination sources, as defined by the Colorado Air Pollution Control Act, C.R.S. 1973, 25-7-103(9); they cause and induce substantial mobile source activity which results in emissions of air contaminants.

A large portion of Colorado's front range area has been designated as "nonattainment" for the mobile source related air contaminants: carbon monoxide and photochemical oxidant. The Federal Clean Air Act amendments of 1977 require that the State of Colorado submit to the administrator, Environmental Protection Agency, an approvable and acceptable program to assure attainment of the national ambient air quality standards by or before January 1, 1979. Furthermore, section 109(j) of title 23, U.S. Code expressly conditions the grant of any federal highway construction funds upon compliance with approved plans to implement the national air quality standards established by the Federal Clean Air Act.

S.B. 231, enacted and signed into law in 1977, provides for a state program aimed at reducing existing levels of automobile contaminants in front range Colorado communities. The bill provides for administration of a unified inspection and maintenance program for automobiles. S.B. 231 calls for implementation of that program, which is designated as part of the motor vehicle emissions control program for the State of Colorado, by not later than January 1, 1980 (C.R.S. 1973, 42-4-312).

In May of 1978, Governor Richard Lamm vetoed another piece of legislation (H.B. 1209) which pertained to control of automotive emissions in Colorado. At the same time the governor proposed to submit a request for early startup of the I/M program created by S.B. 231 and also proposed an expedited preparation procedure by executive agencies so that inspection and maintenance activities could begin as early as February, 1979 if the general assembly amends S.B. 231. The letter attached to your request for an opinion, and dated May 5, 1978, reflects these events.

The entire program described by S.B. 231 and authorized for implementation in Colorado no later than January 1, 1980 is funded by a portion of the highway user's tax fund, as described at C.R.S. 1973, 42-4-302(4)(d), as amended. There is within the highway user's tax fund a special account to cover the cost of motor vehicle emissions control activities of the Departments of Health and Revenue, and said special account is funded by the 30 cent fee imposed on the sale of inspection certificates on and after July 1, 1974. The funding authorization set forth at42-4-302(4)(d), as amended, is not limited to any particular activity or time table of activity for motor vehicle emissions control but broadly authorizes the Departments of Health and Revenue to expend funds from the special account which relate to this general subject area.

Your request for an opinion indicates that the Department of Health now desires appropriation of funds from this special account to accomplish the purposes set forth in a letter from the governor dated May 5, 1978. The chief executive has directed that the Department of Health prepare all administrative aspects of an inspection/maintenance program for initial operation as early as February of 1979. The activities defined in the May 5 letter are entirely within the existing authority and prerogatives of the Department of Health under the existing S.B. 231 and provisions of the Colorado Air Pollution Act; only the time table is proposed for acceleration and that is to proceed only in conjunction with anticipated legislative modifications of the mandatory startup time for an inspection/maintenance program.

SUMMARY

Those activities described in the May 5 directive from the governor are clearly motor vehicle emissions control activities to be carried out by the Colorado Department of Health. As such, these activities may be funded from the special account within the highway user's tax fund defined at C.R.S. 1973,42-4-302(4)(d), as amended.

Very truly yours,

J.D. MacFARLANE Attorney General

INSPECTIONS MOTOR VEHICLES

23 U.S.C. § 109(j)

C.R.S. 1973, 42-4-302(4)(d) C.R.S. 1973, 25-7-103(9)

HEALTH, DEPT. OF Air Pollution Control Div. REVENUE, DEPT. OF

Inspection/Maintenance program to be conducted by Colorado Departments of Health and Revenue are fundable by highway user's tax fund pursuant to C.R.S. 1973, 42-4-302(4)(d).