Utah Physicians for a Healthy Environment / Courtesy / via FairWarning
When officials at the Environmental Protection Agency began investigating Freedom Performance, LLC, they didn’t have to look very hard for evidence that the company was violating the Clean Air Act. According to legal documents, the Florida car parts distributor literally advertised violations on its website.
“The road to hell is often paved with good intentions,” stated one ad for a kit to remove federally-required emissions controls from diesel trucks. It identified a particular emissions control system that “is certainly noble in its intent,” but “in reality it is putting your engine through hell … The best solution is deletion.”
According to the EPA, Freedom Performance was advertising defeat devices—hardware and software that bypass or eliminate emission controls. The Clean Air Act forbids tampering with these controls, and violations carry heavy fines. But defeat devices—also known as “delete devices”—are popular with many vehicle owners.
Shops advertise that delete kits will improve mileage and extend the lifespan of expensive components, saving customers thousands of dollars. In recent years, a lucrative cottage industry of defeat devices has exploded across the U.S. as repair shops, online retailers, and manufacturers feed, and generate, consumer demand.
The EPA estimates that more than 500,000 diesel pickup trucks have been “deleted” since 2009. The EPA claims that these illegally modified vehicles produced hundreds of thousands of tons of excess nitrogen oxide—the equivalent of adding nine million more trucks to the road. Public health advocates say that diesel emissions contribute to increases in fine particulate matter and other airborne pollutants that have been linked to higher rates of cancer, heart attacks, strokes and neurodegenerative diseases.
In recent years, the EPA has escalated a crackdown, resolving more than 60 cases against companies that make or distribute defeat devices since 2017. The penalties can be stiff: In February, the agency announced that Freedom Performance would pay over $7 million for committing thousands of violations. The managing member of the company, Geoffrey Kemper, did not respond to requests for comment.
But the crackdown has left much unresolved.
For one, defeat devices can be easily found for sale in brick-and-mortar stores and online, including on popular platforms such as eBay. That has led some public health advocates to launch their own litigation under the Clean Air Act. They’ve targeted body shops featured on the popular Discovery Channel show “Diesel Brothers,” where some mechanics customized massive diesel trucks with names like BroDozer and Truck Norris. A representative for Discovery declined to comment.
Enforcement of the defeat device law has triggered pushback from body shops and retailers who say the law is confusing and draconian. The industry is backing a bill in Congress written by the “Motorsports Caucus” that claims it would protect the right of motorists to convert a highway vehicle into a race car, but that opponents say would hamper EPA enforcement of clean air standards.
Flipping a switch
Once upon a time, turning off the emissions controls in a vehicle was almost as simple as flipping a switch, according to the EPA. But as the agency imposed tighter emissions standards, automakers introduced increasingly sophisticated equipment to reduce pollutants.
Nowadays, defeat devices generally come in “delete kits” with hardware and software to use in tandem. One popular item is a straight pipe—a metal tube that can be installed in a vehicle’s exhaust system, replacing equipment like the diesel particulate filter.
“Tuners,” which plug into a vehicle, install software known as “tunes” that change how a vehicle’s computer regulates emission levels. Physical devices can be installed in a vehicle’s engine or exhaust system, such as “delete pipes,” hollow tubes that bypass or replace equipment containing sensitive filters.
Though aftermarket defeat devices have always been illegal, the EPA significantly ramped up enforcement around the time of the most notorious automotive industry fraud of the 21st century: the Volkswagen scandal.
In 2013 and 2014, the California Air Resources Board and researchers at West Virginia University discovered that the German automaker had installed a defeat mechanism across its fleet of diesel-engine passenger vehicles. It could detect when the cars were being tested, bringing emissions levels down to regulatory standards.
On the road, however, the vehicles emitted up to 40 times more nitrogen oxides—reactive, poisonous gases—as during the tests. Nearly 600,000 of these vehicles were sold or for sale in the United States, and the company later admitted it had manufactured about 11 million globally.
It was the first defeat device violation that the EPA decided to pursue as a criminal case, rather than as a civil suit. A couple decades earlier, in 1998, the EPA had gone after similar violations by seven major manufacturers of big rig diesel engines, including Caterpillar and Mack Trucks. In the end, without admitting wrongdoing, the manufacturers agreed to pay a combined total of $1 billion in fines and investments in building cleaner engines and reducing nitrogen oxide pollution.
The Volkswagen case “was a very, very concerted effort by the company to evade the law,” said John Cruden, assistant Attorney General for environment at the time, and lead negotiator on the Volkswagen case.
The result was a legal settlement that has cost Volkswagen more than $20 billion in the United States alone, including criminal and civil penalties and investments in emission reduction projects around the nation. In June 2020, a federal appeals court ruled that U.S. localities could also sue VW for violating local pollution laws, opening them up to many more claims.
“Few companies could survive that litigation,” Cruden said, “so obviously it has an exceptional deterrent effect.”
Shortly after the Volkswagen violations came to light, the EPA cracked down on other auto manufacturers. In August 2020, after a four-year investigation, Mercedes-Benz parent company Daimler settled with the EPA, the Air Resources Board and the Justice Department, among other agencies, for $1.5 billion for similar emissions cheating tactics.
The ripples have reached smaller operators in the aftermarket parts industry, which makes and installs defeat devices after vehicles are on the road. They range from subsidiaries of major companies like Polaris Inc. to local garages tampering with controls on a few dozen semis.
“When the government discovers misconduct in one part of an industry, it’s not unusual for the government to focus more on the rest of the industry,” said David Uhlmann, a University of Michigan law professor and former head of the Justice Department’s Environmental Crimes unit who left prior to the Volkswagen case.
The number of vehicles targeted for aftermarket tampering is not as great as in the VW scandal, David Cooke, senior vehicle analyst at the Union of Concerned Scientists, told FairWarning—but the emissions from any one vehicle, particularly pickups, can be far worse.
One of the first companies to catch the EPA’s attention was H&S Performance.
Two tips a day
In 2015, the EPA announced that the Utah manufacturer had agreed to pay a $1 million fine for making and selling tens of thousands of defeat devices. H&S’s customers were operators of heavy-duty diesel trucks. According to the consent agreement, the EPA estimated that the H&S tuners created an additional 71,669 tons of nitrogen oxides. The agency claimed that H&S had committed over 114,000 violations of the Clean Air Act—one violation for each time H&S sold a defeat device.
Over the next five years, the EPA took aim at companies that had manufactured hundreds of thousands of defeat devices. The EPA said on average it gets two tips a day about companies selling defeat devices.
In September 2018, the agency settled a case with a Florida firm called Derive Systems, which allegedly manufactured and sold approximately 363,000 parts.
In July 2015, the EPA received an anonymous tip that a Florida company called Punch It Performance and Tuning was manufacturing and selling defeat devices for diesel trucks, including straight pipes and tunes. After inspecting the company’s sales records, the EPA determined that Punch It and its president, Paul Schimmack, had committed thousands of violations of the Clean Air Act.
For several years, Schimmack tried to evade the EPA by closing companies and opening new ones to continue selling defeat devices. The complaint against Punch It gave a glimpse of how lucrative the business can be. According to the EPA, Schimmack had multiple homes and a yacht registered to his various businesses. In 2019, Schimmack agreed to pay a civil penalty of $850,000. He did not respond to a request for comment.
Despite these actions, many companies continue to operate with impunity. The clearest evidence is the sheer number of tuners and straight pipes that appear to be openly sold on e-commerce sites, including eBay, and by users on Facebook’s Marketplace platform.
“All you’ve got to do is Google DPF tuner online and you’ll have a hundred places you can buy it today,” David Sparks, a mechanic featured on the “Diesel Brothers” show, said in a deposition in a court case.
An open boast
While most sites don’t openly claim that their products bypass emissions controls, eBay vendors sell “delete kits” that do make this boast, despite an eBay policy that forbids the sale of defeat devices. An eBay representative told FairWarning the company would remove the illegal listings, but a search for “delete kits” nearly five weeks later still turned up numerous items for sale.
There is also at least one listing for a delete kit on Facebook’s Marketplace platform which remains active days after FairWarning notified the company of the illegal product for sale. Facebook puts the legal onus on Marketplace buyers and sellers, a spokesperson told FairWarning, and only investigates listings when asked to by regulators or law enforcement.
Companies that make the devices test the EPA—sometimes brazenly. Seven months after the EPA action against Derive Systems, for instance, the company participated in a conference in Las Vegas where contestants brainstormed how to hack car computers to boost performance, according to a company blog post.
Discouraged by what they see as EPA’s limited results, public health advocates in Utah are pursuing a novel strategy to eliminate defeat devices.
In 2017, the Utah Physicians for a Healthy Environment filed what it claims was the first Clean Air Act citizen suit against companies selling defeat devices. The law allows private citizens to file lawsuits to enforce emissions standards. Their targets were body shops featured on “Diesel Brothers.”
For years, these companies produced videos that showcased powerful trucks. One video produced in 2013, which was later used as a court exhibit, showed a large truck blacking out a Prius with thick smoke.
County health department data showed that many diesel trucks were failing emissions tests due to deliberate tampering with pollutant controls, and that a deleted diesel typically produced 36 times more nitrogen oxides than allowed by the EPA.
Reed Zars, the attorney who filed the suit, only had to look as far as Instagram and Facebook to find potential violations by some of the companies featured on the “Diesel Brothers.”
Zars bought one of their trucks and took it to an EPA-certified lab in Colorado for emissions testing. The lab discovered that the modified truck emitted 30 to 40 times the limit for various pollutants.
“Can you imagine straight-piping a power plant?” Zars said. “They were straight-piping these smaller power plants.”
David Sparks, a body shop owner featured on “Diesel Brothers” and one of the defendants in the lawsuit, did not respond to requests for comment.
In March, a court ruled in favor of the physicians’ group, imposing over $850,000 in fines and penalties and forbidding the defendants from selling defeat devices.
Last September, the Utah advocacy group went after a bigger target: TAP Worldwide, an aftermarket parts company with dozens of outlets across the U.S. TAP is a subsidiary of Polaris Inc.
According to the suit, TAP has repeatedly violated the Clean Air Act by selling and installing defeat devices. TAP, which has asked the court to dismiss the case, did not respond to requests for comment.
An EPA case against a small body shop illustrates what opponents of the crackdown see as confusing rules and overly aggressive enforcement.
Earlier this year, the EPA fined Lead Foot Diesel Performance, LLC of Georgia $17,348 for selling 18 defeat devices. Vinny Hines, a sales manager for Lead Foot, said the EPA inspector told him that the company was investigated because it had the word “performance” in its name.
Hines, a self-described “dumb redneck,” said he didn’t think he had anything to worry about when EPA inspectors showed up at his shop in August 2019. He kept a tidy store and properly disposed of waste oil, coolant and other chemical waste. He was surprised when the inspectors said they were looking for defeat devices. Hines said the inspectors went through his invoices until they found sales of 18 defeat devices from five years earlier, he said.
For Hines, it was deeply embarrassing and frustrating to be called a lawbreaker after 15 years in the diesel industry without incident.
The EPA inspectors gave him materials about how to comply with the law but he said he had to get a lawyer to explain how it worked. “I’ve learned one thing: you cannot be compliant with the EPA,” Hines said. “If they came in to inspect, they’re not leaving without taking at least a dollar.”
Aftermarket parts makers and installers, and even vehicle owners, say they must navigate an intricate set of guidelines.
For example, in scenarios laid out in an EPA compliance presentation, a repairman who noticed that someone had tampered with a car’s emissions controls would have to fix it or face fines, even if the repairman and the car owner had nothing to do with installing the defeat device.
It’s easy to violate such exacting rules without meaning to, they say. But officials and advocates discount the idea that violations are unintentional.
“They know what they’re doing is illegal,” Cooke of the Union of Concerned Scientists said. “And they are doing it for vehicles that then share the road with the rest of us.”
In California, the industry is well aware of state rules that are more stringent than the EPA’s, said Stanley Young, spokesman for the California Air Resources Board.
On the down-low
“By now everybody knows how strict California is and anybody who tries to sell unauthorized aftermarket parts in California typically knows that they’re doing it illegally and they have to do it kind of on the down-low,” Young said.
The EPA says it’s made more than two dozen presentations to various industry groups since fall 2019. It has also made presentations at the annual show of the Specialty Equipment Market Association, the leading trade association for aftermarket and racing parts, since 2008.
But players in the industry and their supporters in Congress continue to promote the idea that the EPA is targeting people who transform their vehicles solely for racing.
In October 2019, members of Congress who call themselves the Motorsports Caucus introduced a bill to protect the right of motorists to convert their vehicles into race cars—the latest version of legislation that has failed in the past.
According to public records, the Specialty Equipment Market Association has lobbied for years for Congress to pass such a bill, branding it a commonsense correction to EPA overreach.
The EPA stated in an email that it has no interest in cracking down on those who manufacture, sell or install parts that transform street-legal vehicles into race cars only operated on a track. What is illegal, according to the EPA, is modifying emissions controls in vehicles that will be used on streets and highways.
The bill’s opponents believe that rather than clarifying the EPA’s scope, it would make enforcement more difficult. In a previous version of the bill, the Congressional Budget Office anticipated that it would probably force the EPA to shift its focus from manufacturers and sellers to vehicle users.
In the aftermath of the Volkswagen scandal, regulators are devising new ways to catch potential defeat device violations at every level.
The California Air Resources Board, for instance, is testing ways to identify trucks exceeding emissions standards even when they’re on the road, Young said.
High-tech solutions may become an effective form of deterrence. For now, though, many companies are still willing to test the law. On July 23, the EPA announced that it had busted an Irvine, California company for manufacturing and distributing defeat devices.
This story was produced by FairWarning (www.fairwarning.org), a nonprofit news organization based in Southern California that focuses on public health, consumer, labor and environmental issues.
Original source: Energy News Network