Reading the Tea Leaves – Is the EPA More Concerned About “Rollin’ Coal” Than Racers?

February 24, 2016Articles Are We There Yet? - Transportation Law Blog

The Specialty Equipment Manufacturer’s Association’s (“SEMA”) February 8, 2016 press release on an EPA proposal sent shockwaves through the automotive community, with many declaring it a ban on track cars. Depending on who you ask, the EPA is either back pedaling or had no interest in pushing Clean Air Act standards on racers in the first place.

The EPA proposal at issue sought to add a new “prohibited acts” section to light-vehicle regulations requiring that emission components “remain in their certified configuration even if they are used solely for competition or if they become non-road vehicles or engines.” Buried in a 629-page proposal, SEMA warned that the disputed language could effectively end the conversion of any road car into a race car or track-day toy.

The EPA’s response, released in a statement to media outlets, seems to indicate that converting your road car into a race car was always illegal. Laura Allen, the EPA’s Deputy Press Secretary, confirmed as much in an interview with Automotive News last week explaining that the rule is not an enforcement priority. Allen backed this up by pointing to the fact that the EPA has never enforced Clean Air Act standards against an owner who “has proved the tampered vehicle was used exclusively for racing.”

So who is at risk here? The EPA seems of the mind that racers are not an enforcement issue for them. The Automobile News article does give an indication as to how the Clean Air Act has been used to fine automotive aftermarket companies in the past:

  • Casper’s Electronics (2007) – Consent Agreement to pay $80k for selling plug-in oxygen sensors designed to trick sensors into thinking that emissions equipment was functioning properly even when modified or removed.
  • Edge Products (2013) – $500k fine for selling products that allowed owners to defeat diesel particulate filters in order to spew clouds of black smoke from the exhaust, a practice known as “Rollin’ Coal.”
  • H&S Performance (2015) – $1 million dollar fine for truck tuning company whose devices allowed owners to disable diesel particulate filters and exhaust-gas recirculation systems.

What’s clear is that the EPA has in its sights those who sell or use defeat devices to override or fool factory emissions systems. The escalation in fines involved in these examples indicate that the EPA’s stance is stiffening, and one would imagine that will continue post-VW “Dieselgate.” Aftermarket performance companies whose products reflash a vehicle’s electronic control unit (ECU) seem particularly at risk. The question going forward is two-fold, to what extent the EPA continues to make this an enforcement priority and where they draw the line on acceptable engine and emissions modifications under the Clean Air Act.

Additional Reading:

-Jeremy Korzeniewski’s great AutoBlog article on the uncertainty that still remains as to how the EPA will enforce these Clean Air Act standards in the future.

SEMA’s February 11, 2016 Press Release on the Myths Surrounding the EPA’s Clean Air Act proposal.