U.S. EPA Has Fleet Owners Changing Their Tune
LEGAL BRIEF | TRUCKING
USEPA estimates over 500,000 pickup trucks have been subject to tampering (as well as a very large number of other diesel vehicles), you can see that the scope of the excess emissions involved is significant.
Robert Gandley is a partner at MacDonald Illig. He is chair of the Firm’s Environmental & Energy Group and concentrates his practice in the areas of regulatory compliance and permitting.
multibillion-dollar civil penalties as well as criminal charges. Similar enforcement activities are now occurring on a smaller scale involving numerous companies who manufacture, distribute or install defeat devices or tuning software to retune diesel engines as well as owners of fleets of diesel vehicles that have had trucks retuned and defeat devices installed.
Owners of fleets of diesel trucks and equipment should be aware of the ongoing U.S. Environmental Protection Agency (USEPA) crackdown against both vehicle tampering and the installation of “defeat devices.” (See 42 U.S.C.§§ 7522(a) (3)(A)&(B) for laws prohibiting tampering with engine components or selling, offering to sell or installing any part or component where the principal effect is to bypass or render inoperative any emission control device on an engine.)
It is important to understand the background of the rise in defeat devices. As diesel pollution control equipment became more complicated and expensive, truck owners began frequently removing or deactivating pollution control equipment rather than maintaining or replacing it. In an effort to curb these activities, manufacturers now have installed computerized software in diesel vehicles that monitor various operating parameters and automatically derate or shut down a diesel engine that operates outside of design parameters.
Most everyone is familiar with the large automaker emissions cheating scandal involving Volkswagen several years ago where their diesel vehicles had computer software designed to allow them to pass emissions tests, but operate at higher emissions levels during normal driving to improve performance and/or fuel economy. The Volkswagen case led to
As a result, truck owners are now also having trucks illegally retuned to enable them to continue running when certain parameters are outside of the factory design settings. USEPA estimates that a vehicle that has been altered can produce emissions 30-40 times higher than a newly certified compliant vehicle. When you combine this with the fact that
USEPA recently has ramped up efforts to pursue violators of the vehicle emissions regulatory standards through a National Compliance Initiative. Enforcement actions have been pursued against a variety of entities including the manufacturers/sellers of defeat devices, the providers of illegal tuning services, and the owners of illegally modified trucks. Generally, as a part of an enforcement action against any of these entities, one of USEPA’s tactics has been to submit information requests to the target asking for all information that will lead to customers or suppliers/providers who were also involved in the emissions tampering. This has led to USEPA having successful enforcement actions against a variety of entities. It is important for fleet owners to know that in any enforcement action, they are likely to face civil penalties (with stated penalties in the range of $5,000 per unit and some reductions available for defendants entering into voluntary settlement agreements). Enforcement also includes orders to document the prompt restoration of all equipment back to factory emission equipment and retuning to factory settings. In addition to the penalties and the even higher expense of repairs and business disruption, individuals involved in tampering also face the prospect of potential criminal enforcement. One employee of a fleet operator in Pennsylvania was sentenced to six months in prison for altering 30 heavy-duty diesel trucks in their fleet. USEPA now has databases of suspect equipment, expedited investigation and settlement tools, staff expertise and other items in place to enable accelerated enforcement of tampering cases at least through the 2023 expiration of their ongoing National Compliance Initiative. For more information, contact Robert Gandley at 814/870-7661 or rgandley@mijb.com. mbabizmag.com • AUGUST 2021
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