Compliance is a hot topic now because enforcement is on the rise, but the laws regarding emissions controls-and the reasons for them-are far from new.
“Racing only” and “off-road use” claims no longer offer protection from liability under the CAA. The U.S. government began enacting clean air acts in 1955. The Clean Air Act Extension of 1970 and two Amendments in 1977 and 1990 established the basic programs to be followed by the automotive industry. However, the Environmental Protection Agency, which manages federal emissions standards, implemented more stringent regulations in a multi-tiered plan. Tier 1 emissions standards went into effect in 1994, while Tier 2 levels started being phased in 10 years later.
According to the Clean Air Act, California is the only state in the country that has the authority to determine its own set of emissions control requirements for mobile sources (cars, trucks, industrial equipment, mowers, generators, etc.), although limits are imposed on the California Air Resources Board, such as maintaining consistency with federal procedures.
Jackie Lourenco, chief of ARB’s new vehicle and engine programs branch, explains that “regulations are adopted to ensure compliance with federal mandates to meet the Air Quality Standards…to reduce emissions, which in turn improves air quality and the health and welfare of our citizens.”
Since 2003, companies in the diesel performance industry have had, to a certain extent, “free rein” with respect to emissions compliance, despite a federal diesel performance parts testing protocol that was in place and was required of diesel OEMs.: Enforcement is now being stepped up.
The ARB has worked with the EPA to encourage setting national requirements that meet the air quality goals of the state, she says, but when the federal government doesn’t provide the level of emission control desired, the state organization develops more stringent requirements.
However, she adds, “when the manufacturers do not comply with the regulations and ARB does not enforcement them, the benefits may not be realized.”
Enforcing the Situation
Except for some high-profile cases involving flagrant violations, enforcement has appeared erratic, leading potentially affected violators to consider it virtually non-existent.
Enforcement got a boost in May, 2007 when President Bush issued an executive order designed to reduce greenhouse gas emissions from motor vehicles-a response to a Supreme Court ruling that the EPA must take action under the Clean Air Act to regulate motor vehicle emissions.
Nevertheless, since 2003, companies in the diesel performance industry have had, to a certain extent, “free rein” with respect to emissions compliance, despite a federal diesel performance parts testing protocol that was in place and was required of diesel OEMs.
If a device does affect emissions, it should not be sold for use on emission-controlled vehicles and engines.
For most aftermarket manufacturers, the EPA’s engine dynamometer certification was cost-prohibitive. Realizing this, both the EPA and ARB postponed enforcement until the time when an affordable certification protocol could be established, allowing the specialty parts industry to develop an alternative (in-vehicle or engine dynamometer) method for certification.
The time is now. Specialty Equipment Market Association (SEMA) technical consultant Jim McFarland indicates that specific testing protocols are now available and the “alternative protocol development period” granted by ARB because of the lack of an affordable method for certifying diesel performance aftermarket parts has ended.
“There should be no more reasons (for non-compliance) preventing a provider of emissions-critical diesel parts to delay certification,” he says. In fact, he adds, because the compliance landscape is changing and once-dormant issues are coming alive, “emissions compliance is becoming more critical than ever before.”
Rules of the Road
According to the law, manufacturers of aftermarket parts are required to contract with private laboratories to conduct emissions testing to prove that their devices will not reduce the effectiveness of any emissions controls on certified vehicles and engines and will not cause the vehicles and engines to exceed the applicable emissions standards of the original vehicles and engines.
Laurenco says the aftermarket regulations are simpler than the testing requirements associated with the original new vehicle and engine manufacturers.
“The industry was given more flexibility to show compliance with the emission requirements because many of them are small businesses.”
The process is similar to what original manufacturers go through-submitting an application that describes the device, how it works, and the makes and models of vehicles the manufacturer will market-but unlike the OEMs, the aftermarket parts manufacturers do not have to show the impact of long-term use on the vehicles and the testing they perform is applied to a broader range of vehicles to reduce testing costs.
For most manufacturers, only one emissions test is required for each device.
Despite that advantage, Dave Martinez, president of Edge Products in Ogden, Utah, a manufacturer of aftermarket performance electronics, says compliance remains “pretty onerous” due to the required financial commitment to test and analyze the results. He estimates the investment for testing each part can range from $2,000 to $4,000.
“And if it’s not in tolerance, it’s back to the lab! It takes a lot of work; you have to dedicate employees and resources to it.”
Nor is it an investment that is going to directly translate to profits. “The consumers also don’t understand compliance,” Martinez continues, “so they aren’t demanding compliant parts.”
Without an eager audience, some companies are reluctant to devote valuable resources to creating compliant parts. However, Martinez says Edge “can’t afford not to be compliant,” which is why the company is committed to compliance.
He believes the big companies have a lot to lose and are doing what it takes to stay legal. It’s not easy, he says, in part because “the landscape is just beginning to take shape. It’s difficult because it’s still changing.”
Laurenco doesn’t agree that the regulations are a moving target. “Generally, the aftermarket parts regulations and procedures have not changed for many years,” she says, although she admits that the new vehicle and engine emission standards have become more stringent over time as new technologies are introduced to further reduce emissions. “I’m not sure I understand the gray area issue. Any device that provides improvements, better performance, better fuel economy or whatever, and does not reduce the effectiveness of emission controls or cause emissions to increase, may receive an Executive Order for sale in California. If a device does affect emissions, it should not be sold for use on emission-controlled vehicles and engines.”
Although Laurenco considers the regulations clear, she noticed mixed reaction at a seminar on the subject at the 2008 SEMA Show (see sidebar).
“Some manufacturers were surprised and others were glad that their competitors got a better understanding of the aftermarket programs.”
Martinez noticed the same thing. “The larger, more established companies can do it, but many of the smaller competitors haven’t done anything. It’s intimidating-who do they talk to?”
Recognizing the challenges, he believes the difficulty is compounded because it’s such a competitive environment. “Until everyone is playing by the same rules, it’s frustrating. If other manufacturers aren’t in tolerance, that can be a competitive disadvantage (to those who are.)”
He believes enforcement will eventually lead to everyone playing by the same rules, however. And so does Laurenco.
“The ARB aftermarket parts program puts the diesel performance manufacturers, as well as all other manufacturers, on a level playing field. Any manufacturer advertising/selling aftermarket parts to California consumers has to meet the same requirements.”
Defeating the Purpose
One aspect that may have accelerated the current spotlight on diesel performance products is the fact that some of these parts may be functionally linked to “auxiliary emissions control devices (AECDs).”
According to the EPA, an AECD is any element of design that senses temperature, vehicle speed, engine rpm, transmission gear, manifold vacuum or any other parameter for the purpose of activating, deactivating or modulating the operation of any part of the emissions control system.
Tuning software under the guise of an AECD could be a target under the law and subject to penalty. Any computer software that alters diesel fuel injection timing under conditions not represented by the Federal Test Procedure is considered a defeat device.
Both EPA and ARB are continually on the watch for “defeat devices” that disable an OEM emissions control device or system. Title II Section 203 of the Clean Air Act includes specific prohibitions for which the EPA can assess a penalty, including the manufacture, sale or installation of a part for a motor vehicle that bypasses, defeats or renders inoperative any emissions control device.
It even extends to anyone who is aware (or should be) that such a component is being sold, installed or used and to anyone causing the sale or installation. Under Section 205, penalties for violations can amount to $32,500 per instance, with each unit constituting a separate instance.
Taking advantage of a potential loophole, many tuner companies focused on power, with some citing racing and off-road potential usage as a way to circumvent certification.
“Racing only” and “off-road use” claims no longer offer protection from liability under the CAA.
“The legal use of parts designed for racing vehicles to be used on on-road vehicles, (the ‘California disclosure’ SEMA worked for) is done,” McFarland explains.
The California statutes establish the definition of a racing vehicle. According to Laurenco, the ARB interprets the language to mean that if the vehicle is registered for highway use or the engine is incorporated into a piece of equipment that is used for work or recreation, it is not racing.
Defeat devices aren’t the only concern. McFarland considers tampering with emissions parts and systems the biggest issue affecting the specialty aftermarket industry. Tampering includes engine adjustments that don’t conform to original spec, installation of parts that aren’t built to OEM spec and “add-on” parts not in the original certified design.
The 1990 Amendment to the CAA broadened the federal law, prohibiting anyone from removing or rendering inoperative any emission control device or element of design on a motor vehicle, including catalytic converters, air pumps and EGR valves, and from disconnecting vacuum lines or parts of the pollution control system, such as electrical solenoids, sensors or vacuum-activated valves.
California anti-tampering laws VC27156 and 38391 prohibit disconnecting, modifying or altering emissions devices. Unless evaluated or exempted by CARB, any aftermarket part intended to replace an OEM emissions-related part that is not functionally identical to the original or which may have an effect on tailpipe emissions could be deemed illegal under the law.
The list of potential offenders includes headers, air intakes, ECUs, camshafts, turbos and superchargers.
Tampering with emission control systems can also void manufacturer warranties-another issue SEMA is addressing. Although McFarland says the Magnuson-Moss Act has never been challenged in court, he acknowledges that OEM warranties can be problematic and that aftermarket devices such as turbos and tuners put car owners at risk of voiding their vehicle’s warranty.
Other issues covered by the regulation include engine switching-replacing an engine with a non-identical motor, particularly if it involves replacing a light-duty engine with a heavy-duty one or swapping diesel for gasoline-and exhaust system repairs, especially if they include the removal of the catalytic converter or incorporating a different configuration of exhaust.
Ending the Confusion
Emissions certification has been on the agenda for decades, but now performance products for diesel-powered vehicles are a focal point. With a comparatively economical and expeditious protocol for certifying these products in place, enforcement could pose a potential problem for parts providers who have not certified their products. Manufacturers and retailers must verify that the parts they produce and sell have been certified.
“The aftermarket industry would have to show that their devices on the newer vehicles do not impact the emission controls and emissions levels,” Laurenco reiterates.
McFarland expects non-certified parts will be caught during vehicle registration or inspection. Currently, 31 states have implemented inspection and maintenance programs.
In addition, the EPA recommends keeping records of proven emissions compliance using the EPA’s federal test procedure or an EPA Aftermarket Parts Certificate for all installed components. According to McFarland, obtaining certification (an ARB Executive Order) remains the most universal way to satisfy both California and Federal emissions requirements.
Although specialty parts providers face numerous issues, understanding and responding to the need for emissions-related parts certification remains part of doing business in today’s automotive aftermarket environment. Prior to the SEMA show, several well-intentioned retail outlets received cease-and-desist letters directing them to use disclaimers in their advertisements or face fines.
“Compliance has a lot of meaning now,” McFarland observes. “Things are changing.”
However, compliance need not be onerous. For additional information regarding the law and its enforcement, check the EPA Web site (www.epa.gov). In addition, SEMA members can access an updated version of its “Black Book” on its Web site (www.sema.org).
The compilation of information lists simplified steps to achieve ARB and EPA certification for emissions-related parts. As Martinez says, “It takes education.”