The current wave of enforcement actions are the result of coal rollers.
Parts suppliers, race shops and tuners alike have all found themselves in the crosshairs of an increasingly strict EPA thanks to the latest round of National Compliance Initiatives, which specifically target the reduction of emissions coming from modified exhaust systems. This focus from the EPA has seen aftermarket companies hit with millions in fines, as well as criminal punishment in certain cases. For decades, the EPA allowed aftermarket companies to operate in this way, but things have changed. We sat down with aftermarket experts and the EPA itself to learn where the rising tensions are stemming from. Spoiler alert: it all ties back to diesel tuners.
Our story starts more than 20 years ago, with two landmark actions clamping down on diesels. First, in 1998, the EPA reached a settlement with seven diesel engine manufacturers for the role they played in installing tampered emissions computers onto their powertrain systems. These defeat devices allowed the owners to knowingly produce more emissions than the EPA deemed legal at the time. Companies including Caterpillar, Cummins, Detroit Diesel, Mack Trucks, Navistar, Renault and Volvo together had to spend more than $1 billion to rectify the cheating engines. This was “the largest civil penalty ever for violation of environmental law,” as the EPA proudly announced.
Not long afterwards in 2000, the Clinton administration and the EPA issued an updated set of rules related to diesel vehicle emissions. These changes came as the United States moved to adopt ultra-low-sulfur diesel fuel, which allowed OEMs to begin installing higher-efficiency catalytic converters and other emissions-control devices like urea injection systems. These tools for reducing the harmful chemical emissions from a diesel engine were previously incompatible with traditional diesel fuel. According to the EPA, this set of regulations was intended to help shift towards a uniform regulatory outlook for both diesel vehicles and their fuel source. This set of rules was rolled out gradually between the 2004 and 2010 model years.
In defiance of these new diesel regulations, a duplicitous market emerged in support of diesel vehicle owners. An entire industry was created in service of removing or modifying these new emissions systems from all sorts of modern diesel vehicles.
There are many reasons why a diesel truck owner might want to remove these systems, though they largely fall into three major categories. Removing emissions systems from a modern diesel often increases horsepower, improves fuel economy, and cuts down on damaging carbon deposits commonly associated with DEF usage. As is clearly outlined in the Clean Air Act however, no person or company may modify the factory-installed emissions system on any vehicle born with a recognized VIN tag. There are specific exceptions in the CAA that pertain to competition vehicles such as dedicated race cars or something like a UTV. The thing about race cars and UTVs is that they are clearly exempt from road-going rules; you only see them on race tracks and off-road. By contrast, a cheating diesel is very visible. It is a big truck going down the highway or back road rolling coal. It’s hard to miss.
“As diesel truck and engine original equipment manufacturers (OEMs) introduced emissions controls to comply with new diesel standards phased in between model years 2004 and 2010, EPA became aware of a growing supply of aftermarket devices designed to remove or defeat those emission controls,” an EPA spokesperson told R&T, perhaps downplaying the viral visibility of rolling coal in the Aughts. “Many devices were, and continue to be, openly advertised as defeating emission controls and sold indiscriminately to the public at large through wholesale or internet-based retail businesses.”
This is no small trend. The EPA estimates that well over 1 million defeat devices have been sold, and that more than half a million diesel trucks have removed their emissions controls. “It is difficult to precisely quantify the prevalence of aftermarket defeat devices because the only available data is what EPA gathers through individual investigations,” an EPA spokesperson told R&T. “Recent enforcement cases have addressed well over 1 million illegal aftermarket defeat devices. From 2010 through 2019, based solely on the EPA’s civil enforcement investigations involving aftermarket defeat devices for diesel pickup trucks, EPA estimates that the emissions controls have been removed from more than 550,000 diesel pickup trucks. As a result of this tampering, more than 570,000 tons of excess NOx and 5,000 tons of particulate matter will be emitted by these tampered trucks over their lifetimes.”
Taylor Smith of Sinister Diesel told R&T during a chat at the 2022 SEMA Show that the actions of the diesel community during that aforementioned time period did little to assuage the EPA’s concerns.
“I think around that same time is when social media really blew up, and we started to see videos of diesel trucks rolling coal down the interstate,” Smith told R&T. “I think the diesel community kind of did it to themselves. You can’t post a video like that and ultimately be surprised that they’re coming after us now.”
The particulate matter that makes up the black smoke you often see belching out of a modified diesel is particularly nasty stuff. The compounds in the soot have been linked to increased risk of lung cancer and respiratory disease, as have other present chemical compounds such as benzene, formaldehyde, and 1,3-butadiene. Not what you want to be breathing in.
“Due to their severe excess NOx emissions, illegally tampered trucks have an air quality impact equivalent to adding more than 9 million additional compliant, non-tampered diesel pickup trucks to our roads,” the EPA told R&T. “Again, this is solely based on what EPA has identified during its investigations regarding tampered diesel pickup trucks. It is likely that the problem is much bigger than that.”
Chris Casperson of Pypes Performance Exhaust had a robust tuning business supplying mostly a market of muscle cars, new and vintage. Across its social media pages you will find not lifted Cummins trucks but lowered Mustangs, restored Chevy Novas, and spotless Oldsmobile Cutlasses. In 2017, he received a message about his products from a source he’d never heard from before: the EPA. Pypes didn’t work specifically to defeat emissions devices in the same way the diesel tuners did, but his exhausts and the handheld tuners he sold were nonetheless non-compliant. While a non-diesel tuner car might not be as visible as a Ram rolling coal in your face, the tech at hand is the same in the eyes of the EPA; both tweak the vehicle’s ECU and emissions. As Casperson discovered, any sort of tampering with a vehicle’s ECU or emissions system can land your shop in a load of trouble under these NCIs, whether or not you work on diesels alone. Pypes Performance Exhaust was fined $84,000 for their role in selling non-emission-compliant exhaust systems after an investigation was opened for the sale of H&S Performance handheld tuners. Those H&S Performance tuners can be used to adjust emissions controls on diesel engines and that was enough reason for the EPA to come knocking.
“My feeling is that when H&S Performance finally had to come clean and give all of their data away, we were on that list,” Chris Casperson of Pypes Performance Exhaust told R&T. “By the time the EPA had gone through that list we had stopped selling the parts for around three years. We got the letter in 2017, and I believe we had officially stopped selling them in 2014. That being said, the EPA isn’t going to look at that list and just ask about diesel stuff. They’re going to look at your whole website. We thought we were fine. We had a lot of what we would call off-road racing parts, off-road x-pipes and things that are not legal for street use. That was kind of the second phase of what they wanted us to show. They wanted to go after and start taking that stuff because they knew that the term off-road use was being abused. We had to revamp our whole line and get rid of anything that was off-road use only.”
H&S Performance was fined $1 million in 2015 for the sale of 114,436 defeat devices intended for use in diesel trucks. As part of that settlement, the entire supply of H&S Performance parts were to be removed from the marketplace. Companies like Pypes Performance Exhaust who previously sold those H&S parts quickly found themselves under the scope of the EPA as well.
Keith Tanner of Flyin Miata also believes that the handheld tuners became a target for the EPA due to the ease in which they can be used to skirt EPA regulations with or without diesel trucks being involved.
“The tuners are a very easy way to do it, because you literally just plug it into your OBD 2 port and tell it to upload a program and all of the sudden you can roll coal,” Tanner told R&T. “That’s why tuners got the initial attention, and that’s why there was a flurry of lawsuits against the diesel tuner guys like Bully Dog. They were clearly removing EGR systems, they were changing the tune to increase particulates dramatically, and they were having very visible effects. They were pissing off other road users with it. So they were the first to get hit, but in reality there is no difference between a diesel truck and sports car. From a legislative standpoint, they’d both be considered the same thing. So once the EPA had to start paying attention to what people were doing as far as impacting emissions systems, that basically brought in everybody who was messing with emissions systems. So if you were putting an ECU on a Mazda Miata so you could run a turbocharger, that’s not really fundamentally any different than removing the EGR system on a diesel pickup truck. From a legal standpoint it is the same thing.”
The visibility and environmental impact of modified diesel trucks have made it significantly more difficult for the EPA to turn its head the other way as far as hopped-up gasoline vehicles are concerned. Tanner explained that the EPA simply can’t leave the aftermarket with any gray area as far as emissions are concerned, resulting in widespread enforcement across both diesel and gasoline parts of the business.
“They said if you really look at everything, the EPA has just basically turned their heads the other way for 50 years,” said Casperson. “They told me to go back to 1975 or so and read everything they’ve published, and it’s quite clear that there are no exemptions stating that you’re allowed to do anything with a street car. All of those documents from 2015 or so are really just a restructuring of what they had already previously published in the 1970s.”
“Prior to the Clean Air Act Amendments of 1990, the Clean Air Act did not prohibit individuals from tampering with emissions controls on their personal vehicles, and did not contain a direct prohibition against aftermarket defeat devices,” An EPA spokesperson confirmed to R&T. “ In 1990 Congress amended the Clean Air Act to prohibit all persons from tampering with motor vehicles’ emissions controls, prohibit the manufacture, sale, or installation of defeat devices, and require onboard diagnostic systems to be phased in for light-duty vehicles by model year 1996.”
The EPA website is home to a collection of case resolutions related to the CAA dating back to 2005. The first aftermarket-related emissions case was settled in 2009, when Reborn Company LLC was fined $1350 for bio-diesel swapping two gasoline-powered Land Rover Defenders. Amazingly, the agency did not take any enforcement action against gasoline engine part suppliers or race shops until 2018. This is to say, there are two eras for EPA enforcement; there’s the development of its diesel crackdown, and then comes everything else. Evans Tuning was the first to get hit with a $4223 fine for selling 103 handheld tuners and exhaust systems for gasoline vehicles. ModBargains.com and Vivid Distributing were also fined for their role in selling aftermarket exhaust systems for gasoline vehicles in 2018, facing $7,000 and $200,000 fines, respectively. Things ramped up in 2019, with 10 different aftermarket companies facing fines for their role in modifying gasoline engines. These companies included huge names like Flowmaster, Magnaflow, More Power Tuning, and VMP Tuning among others. Fines from these companies totaled $1,450,959 in 2019 alone. Nine more cases against gasoline shops have been settled in the years since, with fines totaling $3,421,975. It is important to note that these resolutions only highlight the battles that the EPA won in court, which explains the absence of shops like PFI Speed. The list also doesn’t account for the number of companies that opted to cut deals with the EPA to avoid lawsuits, such as eBay Motors. The timeline, however, makes things clear. Before its crackdown on cheating diesels, gas-related tuners faced little to no scrutiny. After the rolling coal trend, however, fines started for everybody.
Pypes Performance Exhaust is a small company, with Casperson noting that a larger fine related to this case would have put them under. Based on the number of infractions committed by the shop, the EPA did have every right to demand more money. That said, Casperson went as far as to say that the EPA agents on the case seemed somewhat embarrassed about putting the small team through so much stress and financial strain.
“They were very nice, very patient with us,” Casperson told R&T. “They seemed to understand and were almost a little embarrassed that they got this little company and that they were putting us through hell.”
Like many folks inside the aftermarket, Casperson is convinced that this wave of enforcement from the EPA is only going to continue to get more strict as the era of electrification draws nearer.
“We’re still nervous,” Casperson told R&T. “We’re all wondering when they’re going to change the rules again, or not even change the rules, but rather enforce the rules that are there even heavier with even more reporting. In my opinion they don’t want to create any national uproar. I think this is just the way they are going to do it. They just keep pushing people off, and it’s going to be a very slow process.”
Despite his somewhat gloomy outlook, Casperson doesn’t believe the EPA is actually out there trying to close companies down. He doesn’t believe any part of the federal government would be interested in behaving in that way. The fines are instead designed to sting, as the agency’s stated goal is to curb the rampant installation of components that impact vehicle emissions.
“Companies that make and sell aftermarket defeat devices used to remove emission controls pollute our air, harm people’s health, and undercut federal, state, and local efforts to attain air quality goals,” an EPA spokesperson told R&T. “The Act clearly prohibits making and selling defeat devices, and the EPA will continue to enforce the plain meaning of the Act.”
Whether or not the diesel community is ready to own up to its role in the increasing pressures facing the aftermarket, that’s a sentiment shared by many in the business. That’s particularly true of shops that continue to misbehave at this stage in the game, as they only give the EPA more leverage to continue investigating. Things are never going to go back to how they once were, and how the aftermarket will choose to respond moving forward is unclear. It’s possible that the situation will cool down after the emissions compliance NCI expires next year, but the millions of dollars worth of fines coming into the agency might suggest otherwise.
Lucas Bell Born and raised in Metro Detroit, associate editor Lucas Bell has spent his entire life surrounded by the automotive industry.
Keyword: You Can Blame Diesel Tuners for Waking the EPA