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EPA RAMPS UP ENFORCEMENT AGAINST ENGINE EMISSIONS TAMPERING

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Companies that manufacture, install, or otherwise defeat a vehicle’s emissions system risk EPA enforcement.  This is particularly true for activities designed to defeat emissions systems of diesel engines, which has drawn increased EPA scrutiny.

A number of devices or services are available which are advertised to bypass or eliminate the effectiveness of vehicle emissions systems.  These devices or services are often targeted to diesel engines because of diesel engines’ more complex emissions systems compared to gasoline engines.  These devices or services are advertised to deliver more power, enhance fuel economy, prevent engine or exhaust fouling, and to enhance other attributes of the vehicle, such as the exhaust note or plume.  In a cursory Google search, we found numerous businesses throughout this region, including businesses in Virginia, Maryland, and North Carolina, openly advertising these services, including the sale and installation of “EGR delete kits,” “DPF delete kits”, engine computer reprogramming, or exhaust bypasses.

What businesses may not realize is that not only are these activities illegal, but EPA has actually prioritized enforcement against them. 

Section 203(a)(3) of the Clean Air Act (CAA) prohibits the manufacture, sale, or installation of any device that intentionally circumvents EPA emission standards by bypassing, defeating, or rendering inoperative a required element of the vehicle’s emissions control system.  Violations can bring steep civil penalties, including civil penalties up to $45,268 per noncompliant vehicle or engine, $4,527 per tampering event or sale of defeat device, and $45,268 per day for reporting and recordkeeping violations.  In addition, owners who have unlawfully modified their vehicle’s emissions systems may be required to restore the vehicle back to its original specifications.  Enforcement actions have been brought against a host of companies, including defeat device manufacturers, repair shops that installed these devices, and companies that have tampered with the emissions systems of their fleet vehicles. 

Even with EPA’s already active enforcement efforts in this area over the last several years, EPA is pursuing these cases with a heightened priority.  EPA prioritizes its enforcement efforts by developing a National Compliance Initiative (NCI) every three fiscal years (formerly called national enforcement initiatives).  The NCI covering FY2020 – 2023 includes an initiative to stop the manufacture, sale, and installation of devices that defeat emissions systems on both road and nonroad engines.  So far in 2020, EPA Regions brought enforcement actions against more than 20 companies.  Exemplifying the risk, EPA Region 3 recently settled enforcement cases with several companies, alleging that they were involved in the illegal sale and installation of these defeat devices.  The repair shops agreed to settlement penalties ranging from $22,171 to $150,000 for the alleged violations. 

EPA is focused not just on manufacturers or service providers of these defeat devices, but also on owners who install them.  In an emblematic case, a trucking company in Wisconsin was found in 2019 to have illegally modified 19 Heavy Duty Diesel Engine (HDDE) trucks.  As a consequence, the company was assessed a $91,000 civil penalty, restored the emissions systems of several trucks, and as part of its compliance plan, replaced 10 of its older HDDE trucks with new 2019 models at a cost of over $1.3 million.  In a similar case, a bottling company in Kentucky modified five of its HDDE truck engines.  The company was assessed a $13,000 civil penalty and was required to restore the vehicles’ emissions systems. 

EPA is has also focused on ensuring imported road and nonroad engines are CAA compliant, including imported engines which have emissions systems different than what is reflected in the engines’ CAA certificate of conformity, the importation of construction equipment that does not comply with current emissions standards, engines that have missing emissions equipment, and even the importation of individual vehicles from Canada, such as diesel pickup trucks, with modified emissions.  In all of these cases, EPA imposed civil penalties on the company that imported the engine, required the restoration of the engine’s emissions system, or where appropriate, required the exportation of the noncompliant engines out of the U.S. 

Businesses should avoid tampering with the emissions of any vehicle, including road vehicles such as cars, light trucks, and heavy-duty vehicles, and nonroad vehicles, such as construction equipment.  In addition, businesses that purchase used vehicles, particularly companies that purchase used diesel vehicles for commercial purposes, should ensure the vehicles’ emissions systems have not been tampered with.  Businesses that import engines must ensure the engines comply with the engine’s certificate of conformity and possess all regulatory emissions labeling. 

Companies with questions on this topic, which have received inquiries from regulators, or which are facing a potential enforcement action, can contact the author at jromero@vanblacklaw.com for assistance.

See what our legal team can do for your business.

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