Originally published on blog of Union of Concerned Scientists.
By Dave Cooke
With “defeat devices” once again in the news, thanks to yet another manufacturer failing to comply with the Clean Air Act, now seems as good a time as any to remind folks how the automotive industry is actively working to undermine the protections of the Clean Air Act and increase the use of defeat devices in passenger cars and trucks. In this case, aftermarket parts manufacturers and dealers, under their trade association, are fighting for passage of the Recognizing Protection of Motorsports (RPM) Act, a bill which would cripple EPA’s ability to go after people who tamper with automotive emissions controls and one UCS has been tracking for more than three years. Since the industry continues to push this bill in session after session of Congress, let’s break down what the RPM Act does, why it keeps coming back, and why this zombie bill should be taken out and never be heard from again.
With 'defeat devices' once again in the news, thanks to yet another manufacturer failing to comply with the #CleanAirAct, seems like a good time to remind folks how the auto industry is actively working to increase the use of defeat devices. https://t.co/PbiUjru1BP
— Union of Concerned Scientists (@UCSUSA) September 21, 2020
What the RPM Act Does
The Clean Air Act is great, and this year we are celebrating 50 years of it doing the backbreaking work of cleaning up tailpipe pollution so that we aren’t choking on smoke and smog from the 200+ million cars on U.S. roads. But for supporters of the Recognizing the Protection of Motorsports (RPM) Act, the Clean Air Act is just too good at its job.
The Clean Air Act states quite clearly that it is prohibited “for any person to manufacture or sell, or offer to sell, or install, any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative any [emissions control] device.” There is no magical exemption for different uses of a certified motor vehicle.
EPA enforcement under the Clean Air Act has found that about 1 in every 10 diesel trucks has had their emissions controls tampered with. That amounts to at least 10 times the emissions of Dieselgate. And now SEMA is trying to make EPA’s job harder with the RPM Act, protecting aftermarket parts manufacturers at the cost of public health.
These strong anti-tampering provisions have allowed EPA to target the manufacture, sale, and installation of parts intended to “bypass, defeat, or render inoperative” emissions controls, aka “defeat devices.” However, the RPM Act is designed to neuter this capability.
The RPM Act creates a loophole centered on the usage of a motor vehicle, which gives cover to anyone who manufacturers, sells, or installs a defeat device — the RPM act as written would create an exemption “if the action is for the purpose of modifying a motor vehicle into a vehicle that is not legal for operation on a street or highway and is to be used solely for competition.”
What this means in practice is that EPA would no longer be able to explicitly target manufacturers who sell these products online — these aftermarket providers would be able instead to hide behind a purported belief that a purchaser was going to modify their vehicle into a competition vehicle. It pushes enforcement away from the primary source of the problem — manufacturers selling defeat devices to the masses — and immediately limits investigation and enforcement actions to installers of the defeat device, at which point EPA would likely have to further prove that the installer/seller of the device knew that the product was not for a competition-only vehicle.
Why the RPM Act Keeps Coming Back
As with most tiny, obscure bills like this, the reason why the RPM Act keeps on being introduced year after year is money. The Specialty Equipment Market Association (SEMA) is the trade association for aftermarket equipment manufacturers, including the companies manufacturing defeat devices, and they have been fighting with EPA for the exemption for at least 5 years.
SEMA is not interested in air quality or public health or whether the RPM Act restricts EPA’s ability to do its job. SEMA is simply interested in making it easier for its members to make money. How do we know this? Because the RPM Act is not designed to solve the problem that SEMA claims exists.
The Clean Air Act makes crystal clear the illegality of tampering with a motor vehicle’s emissions control system. SEMA claims to care about hobbyist racers, but all it would take to protect racers and the racing industry would be clear guidance from EPA on converting a motor vehicle into a competition-only vehicle. EPA already has such rules in place for imported cars and off-road dirtbikes — having Congress direct the agency to find a similar path for decertification of a motor vehicle to exclude it from highway travel would have been the obvious strategy. Instead, SEMA is seeking a blanket exemption without any such verification or protection, because it knows quite well that it is seeking not to protect racers, but instead to protect manufacturers who wish to sell products to both legitimate racers and the folks who are going to install them in their daily drivers to pollute the air we all breathe.
Why the RPM Act Has to Die (and Stay Dead)
The most obvious reason we know SEMA is not just trying to protect the racing industry is that less than 5 percent of the past motor vehicle enforcement which would have been limited under the RPM Act is for cars. By far, the biggest category of vehicle affected by the passage of the RPM Act would be diesel-powered trucks, which I’m pretty sure are not the “dedicated racecars” SEMA claims to be defending. (In fact, at its 2018 DC political event, SEMA brought along reps from Magnaflow, who was in the midst of settling with EPA for nearly 6,000 diesel defeat devices sold, for which they were fined $612,849).
EPA enforcement has found that roughly 1 in 10 diesel pick-ups sold with emissions controls have been tampered with, or just over 500,000 vehicles. The pollution stemming from these trucks is staggering — remember Volkswagen’s Dieselgate? Well, the excess pollution from the trucks SEMA is trying to protect is equivalent to at least ten dieselgate scandals!!!!!!! (That may seem like a lot of exclamation points, but if you think of each exclamation point as an expletive, you will get closer to my emotional state when I calculated that number.)
Now, just to emphasize how truly unsavory the RPM Act is, I’m going to give you a sampling of the type of people that SEMA is trying to protect, in their efforts to enable greater on-road pollution. First and foremost, the industry acknowledges both that this is going on, and that it’s illegal. PPEI Custom Tuning’s Kory Willis states quite clearly, “There are literally thousands of diesel and gas vehicles out there that are street-driven yet still participate in closed-course competition events,” and another tuner, who obviously declined to put himself on the record said, “I can say that I have nearly $500,000 in cash set aside for this type of situation, because we all know that if we’re doing it (tuning illegally), the EPA is coming.”
The notion to set money aside for fines that you know you’ll have to pay for doing something illegal may sound bonkers, but just take some of these cases that SEMA’s attack on the Clean Air Act would make more difficult to enforce. The RPM Act aims to defend upstanding folks like the Diesel Brothers, who built their entire business/brand on videos of them and their customers violating the Clean Air Act, a particular brand of stupid which cost them at least $850,000. And it’s not just TV show divas that flagrantly violate the Clean Air Act — the mentality of the people selling and installing delete kits is probably best summarized by Justin Holder of Confederate Diesel, who told investigators “I can blow as much smoke as l want with this truck and you can’t do anything about it.”
Perhaps the brazen individuals SEMA is trying to help out, though, are exemplified by Michael Schimmack of Punch-It Performance and Tuning. Michael first worked at Edge Products, which was fined by EPA for violating the Clean Air Act. After they were forced to stop selling defeat devices, he started his own business. This, too, was given a “stop sale” order, so he simply moved his business to another location to try to evade EPA and continue selling products. When this didn’t work, he sold the business’s resources to his wife and sister-in-law, creating a new entity which he secretly ran in order to specifically violate the Clean Air Act and sell defeat devices. And the kicker is that when this, too, was inevitably shut down, he then attempted to transfer its resources illegally to his family in order to create an insolvent company and evade paying his taxes and the Clean Air Act fine.
These are the folks SEMA is trying to protect, not speed racers who want to take their Miata to the track (the Mach 5 is purpose-built and therefore already exempt from the Clean Air Act).
Congress Must End This Charade and Stand up for Public Health
SEMA has proven that it is not interested in compromising on a bill that would allow hobbyists to build their own race cars if it doesn’t also grant a blanket exemption that protects their $45 billion industry. I’m pretty sure the country’s air and public health is worth a heckuva lot more than $45 billion, so it’s time for Congress to represent all of us and quit resurrecting this nonsense at SEMA’s behest.
A sensible bill would ensure that these purported “competition-only” vehicles are not registered to share the highway with the rest of us. Until Congress is willing to protect all of us from the excess pollution related to the defeat devices SEMA’s members sell, this bill belongs on a scrap heap.
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