More Power Tuning, LLC (Board decision, September 24, 2019)

Read the official release (epa.gov)

Plain-English summary

More Power Tuning, LLC sold aftermarket parts for Ford and General Motors light-duty gasoline vehicles. EPA alleged that between January 1, 2014, and August 15, 2015, the company sold 3,220 tuners, 1,965 custom electronic-control-module tunes, and 84 catalyst eliminator pipes, for a total of 5,269 defeat devices. The company admitted EPA jurisdiction but neither admitted nor denied the alleged violations, and waived rights to contest them and appeal the Final Order. The EAB ratified the settlement, which required four installments totaling $100,025 plus stated interest and imposed a compliance plan barring the prohibited conduct.

Decision snapshot

• Cited authorities: Clean Air Act §§ 203(a)(3)(B), 205, and 205(c)(1), 42 U.S.C. §§ 7522(a)(3)(B), 7524(a), and 7524(c)(1); 40 C.F.R. §§ 19.4, 22.4(a)(1), 22.13(b), 22.18(b)-(c), 86.004-21, 86.1811-04, and 86.1844-01
• Outcome: The Consent Agreement was ratified, a $100,025 civil penalty was assessed with four scheduled installments and stated interest, and More Power Tuning was ordered to follow the compliance plan.
• Key point: A settlement over aftermarket defeat devices can combine a staged penalty payment schedule with a continuing ban on prohibited parts and software.

Full text (EPA EAB public release)

F I L E D
Sep 24 2019

Clerk, Environmental Appeals Board

ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.

In re:
More Power Tuning, LLC

)
)
)
)
)
)

INITIALS ______

Docket No. CAA-HQ-2019-8361

FINAL ORDER
Pursuant to 40 C.F.R. § 22.18(b)-(c) of EPA’s Consolidated Rules of Practice, the attached Consent Agreement resolving this matter is incorporated by reference into this Final Order and is hereby ratified. The Respondent is ORDERED to comply with all terms of the Consent Agreement, effective immediately. So ordered. 1

ENVIRONMENTAL APPEALS BOARD

Date: September 24, 2019

1

By: ________
Mary Kay Lynch
Environmental Appeals Judge

The three-member panel deciding this matter is composed of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:

Docket No.
CAA-HQ-2019-8361

More Power Tuning, LLC
Respondent.

CONSENT AGREEMENT

Preliminary Statement
°

This is a civil administrative penalty assessment proceeding instituted under section 205(c)(1) of the Clean Air Act ("CAA"), 42 U.S.C. § 7524(c)(1). The issuance of this Consent Agreement and attached Final Order simultaneously commences and concludes

this proceeding. 40 C.F.R. §§ 22.13(b).
,

Complainant in this matter is the United States Environmental Protection Agency ("EPA"). On the EPA's behalf, Phillip A. Brooks, Director, Air Enforcement Division,

Office of Civil Enforcement, Office of Enforcement and Compliance Assurance, is authorized by lawful delegation to institute and settle civil administrative penalty assessment proceedings under section 205(c)(1) of the CAA, 42 U.S.C. § 7524(c)(1 ).

EPA Delegation 7-6-A.
,

Respondent in this matter is More Power Tuning, LLC ("MPT"). Respondent is a limited liability company organized under the laws of the State of Florida with an office and

facility at 620 Poyner Drive, Longwood, FL 32750. MPT offers for sale and sells

aftermarket motor vehicle parts for use on gasoline fueled motor vehicles manufactured by the Ford Motor Company ("Ford") and the General Motors Company ("GM").
,

The EPA and Respondent, having agreed to settle this action, consent to the entry of this

Consent Agreement and the attached Final Order before taking testimony and without adjudication of any issues of law or fact herein, and agree to comply with the terms of

this Consent Agreement and the attached Final Order.
Jurisdiction

5.

This Consent Agreement is entered into under section 205(c)(1) of the CAA, 42 U.S.C.

§ 7524(c)(1), and the "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of

Permits," 40 C.F.R. Part 22 ("Consolidated Rules").
°

The EPA may administratively assess a civil penalty if the penalty sought is less than

$320,000. See 42 U.S.C. § 7524(c) (setting the administrative penalty cap at $200,000); 40 C.F.R. § 19.4 (increasing the cap to $320,000 for penalties accruing on or after

December 6, 2013, through November 2, 2015).
7,

The Consolidated Rules provide that where the parties agree to settlement of one or more

causes of action before the filing of a complaint, a proceeding may be simultaneously commenced and concluded by the issuance of a Consent Agreement and Final Order.

40 C.F.R. § 22.13(b).
8.

The Environmental Appeals Board is authorized to, among other things, approve

settlement of proceedings under the Consolidated Rules commenced at EPA Headquarters. 40 C.F.R. § 22.4(a)(1).

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Governing Law
9.

This proceeding arises under Part A of Title II of the CAA, CAA §8 202-219, 42 U.S.C.

88 7521-7554, and the regulations promulgated thereunder. These laws aim to reduce emissions from mobile sources of air pollution, including hydrocarbons ("HC"), oxides of nitrogen ("NOx"), and carbon monoxide ("CO"). The alleged violations of law, stated below, regard Ford and GM light-duty gasoline motor vehicles, and violations of the

Defeat Device prohibitions in section 203(a)(3)(B) of the CAA, 42 U.S.C.

8 7522(a)(3)(B).
10.

"Motor vehicle" is defined in section 216(2) of the CAA, 42 U.S.C. 8 7550(2), as "any self-propelled vehicle designed for transporting persons or property on a street or highway."

11.

Section 203(a)(1) of the CAA, 42 U.S.C. 8 7522(a)(1), prohibits a vehicle manufacturer from selling a new motor vehicle in the United States unless the vehicle is covered by a certificate of conformity ("COC").

12.

EPA issues COCs to vehicle manufacturers (also known as "original equipment

manufacturers" or "OEMs") under section 206(a) of the CAA, 42 U.S.C.

8 7525(a), to certify that a particular group of motor vehicles conforms to applicable EPA requirements governing motor vehicle emissions.

13.

Under section 202 of the CAA, 42 U.S.C. 8 7521, EPA promulgated emission standards for HC, NOx, and CO. See generally 40 C.F.R. Part 86.

14.

To obtain a COC for a given motor vehicle test group or engine family, the OEM must

demonstrate that each motor vehicle or motor vehicle engine will not exceed established

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emissions standards for NOx, CO, HC, and other pollutants. 40 C.F.R. §§ 86.004-21, 86.1811-04, 86.1844-01. 15.

The COC application must describe, among other things, the emissions-related elements of design of the motor vehicle or motor vehicle engine. This includes all auxiliary emission control devices ("AECDs"), which are defined as "any element of design which

senses temperature, vehicle speed, engine RPM, transmission gear, manifold vacuum, or any other parameter for the purposes of activating, modulating, delaying, or deactivating

the operation of any part of the emission control system" of the motor vehicle. 40 C.F.R.

§§ 86.094-21, 86.1844-01.
16.

"Element of Design" means "any control system (i. e., computer software, electronic control system, emission control system, computer logic), and/or control system

calibrations, and/or the results of systems interaction, and/or hardware items on a motor vehicle or motor vehicle engine." 40 C.F.R. § 86.094-2. For example, manufacturers employ various ignition timing and fueling strategies to control emissions, e.g., retarded

fuel injection timing as a primary emission control device for NOx. Manufacturex:s also employ certain hardware devices as emission control systems to manage and treat exhaust to reduce levels of regulated pollutants from being created or emitted into the ambient air.

Such devices include catalytic converters, oxygen sensors, and exhaust gas recirculation ("EGR") valves. 17.

"On-Board Diagnostic System" or "OBD" is a system of components and sensors designed to detect, record, and report malfunctions of all monitored emission-related

powertrain systems or components. 40 C.F.R. § 86.1806-05(b).

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18.

Under section 202(m) of the CAA, 42 U.S.C. § 7521 (m), EPA promulgated regulations requiring manufacturers of light-duty vehicles and light-duty trucks to install OBD systems on vehicles beginning with the 1994 model year. The regulations required the

OBD system to monitor emission control components for any malfunction or

deterioration causing exceedance of certain emission thresholds. When an OBD system detects a problem, a check-engine light on the dashboard of the vehicle alerts the driver that a certain repair or repairs are needed. 40 C.F.R. § 86.1806-05. Thus, OBD is a

critical element of design of the motor vehicle.
19.

Under the CAA, the term "Person" includes individuals, corporations, partnerships, associations, states, municipalities, and political subdivisions of a state. 42 U.S.C.
§ 7602(e).

20.

Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), prohibits any person from manufacturing, selling, offering to sell, or installing "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 device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations" under Title II of the CAA, "where the person knows or

should know that such part or component is being offered for sale or installed for such

use or put to such use."
21.

It is also a violation for any person to cause any of the acts set forth in CAA section

203(a), 42 U.S.C. § 7522(a).
22.

Persons violating section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), are subject to a civil penalty of up to $3,750 for each violation that occurred after

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December 6, 2013, through November 2, 2015. CAA § 205(a), 42 U.S.C. § 7524(a); 40 C.F.R. § 19.4. 23.

Rather than referring a matter to the United States Department of Justice ("DOJ") to

commence a civil action, the EPA may assess a civil penalty through its own administrative process if the penalty sought is less than $378,852 or if the EPA and the DOJ jointly determine that a matter involving a larger penalty amount is appropriate for

administrative penalty assessment. 42 U.S.C. § 7524(c); 40 C.F.R. § 19.4. Definitions 24.

Definitions, as the terms are used in this Consent Agreement:

(a)

"Defeat Device" means a 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 a motor vehicle emission

control device or element of design, including such emission control devices or elements of design required by regulation under Title II of the CAA. See CAA

§ 203(a)(3)(B), 42 U.S.C. § 7522(a)(3)(B).
(b)

"Catalytic Converter" is a primary emission control component that is used to

reduce toxic byproducts of burning fuel (i. e., NOx, CO, and HC) to less hazardous byproducts such as carbon dioxide, water vapor, and nitrogen gas.

(c)

"Electronic Control Module" or "ECM" is a computer and primary emission control component installed in a motor vehicle that determines how the motor

vehicle functions. An ECM receives input signals from multiple sensors on the motor vehicle. Based on the input signals, and according to the map(s)/tune(s)

installed on the ECM, an ECM sends output signals that direct vehicle functions

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including ignition timing and fueling strategy. The ECM continuously monitors engine and other operating parameters and controls the emission control elements

of design such as the fueling strategy and emission control device operation. (d)

Exhaust gas recirculation ("EGR") is an element of design in motor vehicles that

reduces NOx emissions, which are formed at high temperatures during fuel combustion. By recirculating exhaust gas through the engine, EGR reduces engine temperature and NOx emissions.

(e)

"Tuning Products" means aftermarket ECM programmers (including hardware commonly referred to as "tuners" and software commonly referred to as

"tunes/calibration maps") that have the affect of altering vehicle emissions control systems or elements of design or facilitating the bypass or deletion of vehicle

emissions control devices.
Factual Allegations

25.

EPA alleges the following:

(a)

MPT is a person, as that term is defined in section 302(e) of the CAA, 42 U.S.C.

§' 7602(e).
(b)

Between January 1, 2014, and August 15, 2015 ("the relevant time"), MPT

offered for sale and sold for use on Ford and GM motor vehicles 3,220 Tuning Products (the "Subject Tuners") as described in Appendix A to this Consent Agreement, Table 1.

(c)

During this relevant time, MPT also offered for sale and 1,965 custom Tuning

Products (the "Subject ECM Tunes," as described in Appendix A to this Consent Agreement, Table 2).

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(d)

MPT advertised and sold the Tuning Products for use on 1996 to 2015 model year

Ford and GM light-duty gasoline motor vehicles.
(e)

The Subject Tuners and ECM Tunes have the ability to disable the check engine light caused by the removal or disabling of certain emission control parts, e.g., the

EGR system, the catalytic converter system, oxygen sensor, or OBD system. (f)

Finally, during the relevant time, MPT offered for sale and sold 84 exhaust system that are used to bypass, defeat, or render inoperative the catalytic

converter on certain Ford and GM motor vehicles (the "Subject Catalysts

Eliminator Pipes") as described in Appendix A to this Consent Agreement, Table 3). Alleged Violations of Law

26.

EPA alleges that, between January 1, 2014, and August 15, 2015, Respondent offered for

sale and sold 5,269 Defeat Devices, i.e., the 3,220 Subject Tuners, the 1,965 Subject ECM Tunes, and the 84 Subject Catalysts Eliminator Pipes. These parts and components

were intended for use on motor vehicles or motor vehicle engines to, among other things, bypass, defeat, or render inoperative emission related devices or elements of design that

are installed on a motor vehicle to meet the CAA's emission standards, and Respondent knew or should have known that such parts and components were being offered for sale

or installed for such use or put to such use.

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27.

EPA alleges that, as a person who offered for sale or sold 5,269 Defeat Devices, i.e., the 3,220 Subject Tuners, 1,965 Subject ECM Tunes, and 84 Subject Catalysts Eliminator

Pipes, MPT committed 5,269 violations of section 203(a)(3)(B) of the CAA, 42 U.S.C.

§ 7522(a)(3)(B).
Terms of Agreement

28.

For the purpose of this proceeding, as required by 40 C.F.R. § 22.18(b)(2), Respondent:

admits that the EPA has jurisdiction over this matter as stated above; neither admits nor denies the alleged violations of law stated above; consents to the assessment of a civil penalty as stated below; consents to the issuance of any specified compliance or

corrective action order; consents to any conditions specified in this Consent Agreement, and to any stated Permit Action; waives any right to contest the alleged violations of law;

and waives its rights to appeal the Final Order accompanying this Consent Agreement. 29.

For the purpose of this proceeding, Respondent:
(a)

agrees that this Agreement states a claim upon which relief may be granted against Respondent;

(b)

waives any and all remedies, claims for relief and otherwise available rights to judicial or administrative review that Respondent may have with respect to any

issue of fact or law set forth in this Consent Agreement, including any right of judicial review under Section 307(b)(1) of the Clean Air Act, 42 U.S.C.

§ 7607(b)(1 );
(c)

waives any rights it may possess at law or in equity to challenge the authority of the EPA to bring a civil action in a United States District Court to enforce this

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Agreement or Order, or both, and to seek an additional penalty for such

noncompliance, and agrees that federal law shall govern in any such civil action;

(d)

consents to personal jurisdiction in any action to enforce this Agreement or Order,

or both, in the United States District Court for the District of Columbia; (e)

agrees that Respondent may not delegate duties under this Consent Agreement to any other party without the written consent of the EPA, which may be granted or

withheld at EPA's unfettered discretion. If the EPA so consents, the Consent Agreement is binding on the party or parties to whom the duties are delegated;

(0

acknowledges that this Agreement constitutes an enforcement action for purposes

of considering Respondent's compliance history in any subsequent enforcement actions; (g)

acknowledges that this Consent Agreement and attached Final Order will be

available to the public and agree that it does not contain any confidential business

information or personally identifiable information, except for the tax identification number; (h)

acknowledges that its tax identification number may be used for collecting or reporting any delinquent monetary obligation arising from this Agreement, (see

31 U.S.C. § 7701);

(i)

certifies that the information it has supplied concerning this matter was at the time of submission true, accurate, and complete; and

(J)

acknowledges that there are significant penalties for knowingly submitting false,

fictitious, or fraudulent information, including the possibility of fines and imprisonment (see 18 U.S.C. § 1001).

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30.

For purposes of this proceeding, the parties each agree that: (a)

this Consent Agreement constitutes the entire agreement and understanding of the parties and supersedes any prior agreements or understandings, whether written or

oral, among the parties with respect to the subject matter hereof;

(b)

this Consent Agreement may be signed in any number of counterparts, each of which will be deemed an original and, when taken together, constitute one agreement; the counterparts are binding on each of the parties individually as fully

and completely as if the parties had signed one single instrument, so that the rights and liabilities of the parties will be unaffected by the failure of any of the undersigned to execute any or all of the counterparts; any signature page and any

copy of a signed signature page may be detached from any counterpart and attached to any other counterpart of this Consent Agreement; (c)

its undersigned representative is fully authorized by the Party whom' he or she represents to bind that Party to this Consent Agreement and to execute it on behalf

of that Party;
(d)

each party's obligations under this Consent Agreement and attached Final Order constitute sufficient consideration for the other party's obligations under this Consent Agreement and attached Final Order; and

(e)

each party will bear their own costs and attomey fees in the action resolved by

this Consent Agreement and attached Final Order.
31.

Respondent agrees to pay to the United States a civil penalty of $100,025 (the Civil Penalty). The EPA has reduced the civil penalty on the basis of information produced by

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Respondent to support its claim that it is unable to pay a higher civil penalty and continue to remain in business.

32.

Respondent agrees to pay the Civil Penalty to the United States following the issuance of

the attached Final Order (i.e., the effective date of this Consent Agreement and attached Final Order) in four consecutive installments with interest as follows:

33.

Installment

Due By

Payment

Principal

Interest (1%)

Payment # 1

Within 30 days of
effective date of CAFO

$50,000

$50,025

$0.00

Payment #2

Within 6 months of
effective date of CAFO

$16,675

$33,350

$250.00

Payment #3

Within 12 months of
effective date of CAFO

$16,675

$16,675

$166.75

Payment #4

Within 18 months of
effective date of CAFO

$16,675

$0.00

$83.40

Respondent agrees to pay the Civil Penalty in the manner specified below:

(a)

Pay the Civil Penalty using any method provided on the following website:

http://www2.eoa.•ov/fi nancial/additional-instructions-makingzp_9_yments-ep_a_;

(b)

Identify each payment with "Docket No. CAA-HQ-2019-8361 ; and

(c)

Within 24 hours of payment, email proof of payment to Jocelyn Adair, AttorneyAdvisor, at [email protected] ("proof of payment" means, as applicable, a

copy of the check, confirmation of credit card or debit card payment, confirmation

of wire or automated clearinghouse transfer, and any other information required to demonstrate that payment has been made according to EPA requirements, in the amount due, and identified with "Docket No. CAA-HQ-2019-8361 ").

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34.

As a condition of settlement, Respondent agrees that it will not manufacture, sell, offer

for sale, or install any motor vehicle part or component whose principal effect is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with Title II of the CAA, and it will not remove or render inoperative any emissions related device or element of design

installed on or in a motor vehicle or motor vehicle engine in compliance with Title II of the CAA, as prohibited under section 203(a)(3) of the CAA. Toward that end, Respondent agrees to implement the Compliance Plan attached as Appendix B of this

Consent Agreement.
Effect of Consent Agreement and Attached Final Order

35.

In accordance with 40 C.F.R. § 22.18(c), Respondent's full compliance with this Consent Agreement shall only resolve Respondent's liability for federal civil penalties for the

violations and facts alleged above.
36.

Failure to pay the full amount of the penalty assessed under this Consent Agreement may subject Respondent to a civil action to collect any unpaid portion of the proposed civil penalty and interest. In order to avoid the assessment of interest, administrative costs, and

late payment penalty in connection with such civil penalty, as described in the following Paragraph of this Consent Agreement, Respondent must timely pay the penalty.

37.

If Respondent fails to timely pay any portion of the penalty assessed by the attached Final Order, the EPA may: (a)

request the Attorney General to bring a civil action in an appropriate district court to recover: the amount assessed; interest at rates established pursuant to 26 U.S.C.

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§ 6621 (a)(2); the United States' enforcement expenses; and a 10 percent quarterly nonpayment penalty, 42 U.S.C. § 7524(c)(6);

(b)

refer the debt to a credit reporting agency or a collection agency, 40 C.F.R.
§§ 13.13, 13.14, and 13.33;

(c)

collect the debt by administrative offset (i. e., the withholding of money payable by the United States to, or held by the United States for, a person to satisfy the

debt the person owes the Government), which includes, but is not limited to, referral to the Internal Revenue Service for offset against income tax refunds (see 40 C.F.R. Part 13, Subparts C and H); and

(d)

suspend or revoke Respondent's licenses or other privileges, or (ii) suspend or disqualify Respondent from doing business with the EPA or engaging in

programs the EPA sponsors or funds, 40 C.F.R. § 13.17.
38.

Penalties paid pursuant to this Consent Agreement are not deductible for federal tax purposes. 28 U.S.C. § 162(t").

39.

This Consent Agreement and attached Final Order apply to and are binding upon the Complainant and the Respondent. Successors and assigns of Respondent are also bound

if they are owned, in whole or in part, directly or indirectly, or otherwise controlled by Respondent. Nothing in the previous sentence adversely affects any right of the EPA

under applicable law to assert successor or assignee liability against Respondent's

successor or assignee.
40.

Nothing in this Consent Agreement shall relieve Respondent of the duty to comply with

all applicable provisions of the CAA or other federal, state, or local laws or statutes, nor shall it restrict the EPA's authority to seek compliance with any applicable laws or

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regulations, nor shall it be construed to be a ruling on, or determination of, any issue

related to any federal, state, or local permit.
41.

The EPA reserves the right to revoke this Consent Agreement and accompanying settlement penalty if and to the extent the EPA finds, after signing this Consent Agreement, that any information provided by Respondent was or is materially false or

inaccurate, and the EPA reserves the right to pursue, assess, and enforce legal and equitable remedies for the Alleged Violations of Law. The EPA shall give Respondent

written notice of such termination, which will be effective upon mailing. 42.

The Parties agree to submit this Consent Agreement to the Environmental Appeals Board with a request that it be incorporated into a Final Order.

43.

Respondent and Complainant agree to issuance of the attached Final Order. Upon filing,

the EPA will transmit a copy of the filed Consent Agreement to the Respondent. This Consent Agreement and attached Final Order shall become effective after execution of

the Final Order by the Environmental Appeals Board and filing with the Hearing Clerk.

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APPENDIX A
TABLE 1
(Subject Tuners)
Part
Number

5015
7015
4015
3015
7416
3416
4416
85450

Description of Tuner

Vehicle Application

SCT Ford
SCT X4 Power Flash Ford
ITSX/TSX Android Wireless SCT Ford
SCT X3 Power Flash
SCT X4 Power Flash GM
SCT X3 Power Flash GM
ITSX/TSX Android Wireless SCT GM
Edge Gas Evolution CTS2 Programmer

1996 -.present Ford
1996 present Ford
1996 present Ford
1996 present Ford
1996 present GM
1996 -present GM
1996 present GM
Various
Total

Redacted

-

-

-

-

TABLE2
(SubjectECM Tunes)
Part Number

Application
Redacted

MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
11 MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
14 MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
1
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
1
MPT Email SCT Custom Tune
1
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune

Generic for various Ford vehicles
2011 2014 GT.5.0L V8
2005 2009 Ford Mustang GT
1999 2004 Ford Mustang GT
2005 2009 Ford Mustang V6 4.0L
1999 2004 Ford Mustang V6 3.8L
2011 2014 Ford Mustang V6 3.7L
2009 2010 Ford F150 5.4L
2004 2008 Ford F150 V8 5.4L
2010- 2014 Ford F150 6.2 L
-

-

-

-

-

-

-

-

2011 2014 Ford F150 V8 5.0L
2011 -2014 Ford F150 3.7L
2009 2010 Ford F150 4.6L
2004- 2008 Ford F150 4.6L
1999 2004 Ford F150 5.4L
1999 2004 Ford Lighting 5.4L
2011 -2014 Ford F150 Ecoboost 3.5L
2015 F150 Ford Ecoboost 3.5L
2011 2012 Ford Fusion 3.0L
2006 2009 Ford Fusion 3.0L
-

-

-

-

-

-

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Redacted

Part Number

Application

21
22
23
24

MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune
MPT Email SCT Custom Tune

2010- 2012 Ford Fusion 3.5L
2006 2009 Ford Fusion 2.3L
2010 2012 Ford Fusion 2.5L
1999 2012 Ford Crown Victoria
4.6L
Generic for various Ford vehicles
2003 2007 Ford 6.0 Powerstroke
-

-

-

25 MPT Email SCT Custom Tune
26 MPT Email SCT Custom Tune

-

Diesel
27 MPT Email SCT Custom Tune
28 MPT Email EFI Live Custom Tune
29 MPT Email EFI Live Custom Tune
30 MPT Email SCT Custom Tune
31 MPT Email SCT Custom Tune

1999 2003 Ford Powerstroke Diesel
Generic GM vehicles Tune
GM Supercharged Generic various
GM vehicles
Generic Superch•ged/Turbo Tune
Generic natural Aspirated Tune
-

-

Total

TABLE 3
Subject Catalysts Eliminator Pipes

Part Number
AFE-4943058
2 AFE-4943060
3 BBK-1462
4 BBK-18140
5 MAK-11001
6 MAK-11001SS
MAK-11006
8 MAK- 15001
9 MBRP-CFGA 1011
10 MBRP-CFGS9011
Total
1

Application
2011 -2014 Ford F150 5.0L
2011 -2014 Ford F150 3.5L
2011 2014 Ford Mustang 3.7L
2011 -2014 Ford Mustang 3.7L
2011 -2014 Ford F150 3.5L
2011 -2014 Ford F150 3.5L
2011 -2014 Ford F150 5.0L
2015 Ford F150 3.5L
2011 -2014 Ford F150 3.5L
2011 -2014 Ford F150 3.5L

Redacted

-

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Appendix B

Compliance Plan to Avoid Illegal Tampering and Aftermarket Defeat Devices

This document explains how to help ensure compliance with the Clean Air Act's prohibitions on tampering and aftermarket defeat devices. The document specifies what the law prohibits, and sets forth two principles to follow in order to prevent violations. The Clean Air Act Prohibitions on Tam• and Aftermarket Defeat Devices The Act's prohibitions against tampering and aftermarket defeat devices are set forth in section 203(a)(3) of the Act, 42 U.S.C. § 7522(a)(3), (hereafter "§ 203(a)(3)"). The prohibitions apply to all vehicles, engines, and equipment subject to the certification requirements under sections 206 and 213 of the Act. This includes all motor vehicles (e.g., light-duty vehicles, highway motorcycles, heavy-duty trucks), motor vehicle engines (e.g., heavy-duty truck engines), nonroad vehicles (e.g., all-terrain vehicles, off road motorcycles), and nonroad engines (e.g., marine engines, engines used in generators, lawn and garden equipment, agricultural equipment, construction equipment). Certification requirements include those for exhaust or "tailpipe" emissions (e.g., oxides of nitrogen, carbon monoxide, hydrocarbons, particulate matter, greenhouse gases), evaporative emissions (e.g., emissions from the fuel system), and onboard

diagnostic systems.

The prohibitions are as follows:
"The following acts and the causing thereof are prohibited-"

Tampering: CAA § 203(a)(3)(A), 42 U.S.C. § 7522(a)(3)(A), 40 C.F.R.
§ 1068.101 (b)(1): "for any person to remove or render inoperative any device or element of design installed on or in a [vehicle, engine, or piece of equipment] in compliance with regulations under this subchapter prior to its sale and delivery to the ultimate purchaser, or for any person knowingly to remove or render inoperative any such device or element of design after such sale and delivery to the ultimate purchaser;"

Defeat Devices: CAA § 203(a)(3)(B), 42 U.S.C. § 7522(a)(3)(B), 40 C.F.R.
§ 1068.101(b)(2): "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 [vehicle, engine, or piece of equipment], where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a
[vehicle, engine, or piece of equipment] in compliance with regulations under this subchapter, and where the person knows or should know that such part or component is being offered for sale or installed for such use or put to such use."

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Section 203(a)(3)(A) prohibits tampering with emission controls. This includes those controls that are in the engine (e.g., fuel injection, exhaust gas recirculation), and those that are in the exhaust (e.g., filters, catalysts, oxygen sensors). Section 203(a)(3)(B) prohibits (among other things) aftermarket defeat devices, including hardware (e.g., certain modified exhaust pipes) and software (e.g., certain engine tuners and other software changes). The EPA's longstanding view is that conduct that may be prohibited by § 203(a)(3) does not warrant enforcement if the person performing that conduct has a documented, reasonable basis for knowing that the conduct does not adversely affect emissions. See Mobile Source Enforcement Memorandum 1A (June 25, 1974). The EPA evaluates each case independently, and the absence of such reasonable basis does not in and of itself constitute a violation. When determining whether tampering occurred, the EPA typically compares the vehicle after the service to the vehicle's original, or "stock" configuration (rather than to the vehicle prior to the service). Where a person is asked to perform service on an element of an emission control system that has already been tampered, the EPA typically does not consider the service to be illegal tampering if the person either declines to perform the service on the tampered system or restores the element to its certified configuration.

Below are two guiding principles to help ensure Respondent commits no violations of the Act's prohibitions on tampering and aftermarket defeat devices. Principle 1: Resp_•ndent Will Not Modify any OBD System Respondent will neither remove nor render inoperative any element of design of an OBD system, i Also, Respondent will not manufacture, sell, offer for sale, or install any part or component that bypasses, defeats, or renders inoperative any element of design of an OBD system.

Principle 2: Respondent Will Ensure There is a Reasonable Basis for Conduct Subiect to the Prohibitions For conduct unrelated to OBD systems, Respondent will have a reasonable basis demonstrating that its conduct ii does not adversely affect emissions. Where the conduct in question is the manufacturing or sale of a part or component, Respondent must have a reasonable basis that the installation and use of that part or component does not adversely affect emissions. Respondent will fidly document its reasonable basis, as specified in the following section, at or before the time the conduct occurs.

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Reasonable Bases
This section specifies several ways that Respondent may document that it has a "reasonable basis" as the term is used in the prior section. In any given case, Respondent must consider all the facts including any unique circumstances and ensure that its conduct does not have any adverse effect on emissions, iii Ao

Identical to Certified Configuration: Respondent generally has a reasonable basis if its conduct: is solely for the maintenance, repair, rebuild, or replacement of an emissionsrelated element of design; and restores that element of design to be identical to the certified configuration (or, if not certified, the original configuration) of the vehicle, engine, or piece of equipment, iv

Bo

Replacement After-Treatment Systems: Respondent generally has a reasonable basis if the conduct:

Co

(1)

involves a new after-treatment system used to replace the same kind of system on a vehicle, engine or piece of equipment beyond its emissions warranty; and

(2)

the manufacturer of that system represents in writing that it is appropriate to install the system on the specific vehicle, engine or piece of equipment at issue.

Emissions Testing: v Respondent generally has a reasonable basis if the conduct: (1)

alters a vehicle, engine, or piece of equipment; and

(2)

emissions testing shows that the altered vehicle, engine, or piece of equipment will meet all applicable emissions standards for its full useful life; and

(3)

where the conduct includes the manufacture, sale, or offering for sale of a part or component, that part or component is marketed only for those vehicles, engines, or pieces of equipment that are appropriately represented by the emissions testing.

Do

EPA Certification: Respondent generally has a reasonable basis if the emissions-related element of design that is the object of the conduct (or the conduct itself) has been certified by the EPA under 40 C.F.R. Part 85 Subpart V (or any other applicable EPA certification program), vi

Eo

CARB Certification: Respondent generally has a reasonable basis if the emissionsrelated element of design that is the object of the conduct (or the conduct itself) has been certified by the California Air Resources Board ("CARB"). vii

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Endnotes
i.
OBD system includes any system which monitors emission-related elements of design, or that assists repair technicians in diagnosing and f'Lxing problems with emission-related elements of design. Ira problem is detected, an OBD system must record a diagnostic trouble code, illuminate a malfunction indicator light or other waming lamp on the vehicle instrument panel, and provide information to the engine control unit such as information that induces engine derate (as provided by the OEM) due to malfunctioning or missing emission-related systems. Regardless of whether an element of design is commonly considered part of an OBD system, the term "OBD system" as used in this Appendix includes any element of design that monitors, senses, measures, receives, reads, stores, reports, processes or transmits any information about the condition of or the performance of an emission control system or any component thereof. ii. Here, the term conduct means: all service performed on, and any change whatsoever to, any emissionsrelated element of design of a vehicle, engine, or piece of equipment within the scope of § 203(a)(3); the manufacturing, sale, offering for sale, and installation of any part or component that may alter in any way an emissions-related element of design of a vehicle, engine, or piece of equipment within the scope of § 203(a)(3), and any other act that may be prohibited by § 203(a)(3). iii. General notes concemingthe Reasonable Bases: Documentation of the above-described reasonable bases must be provided to EPA upon request, based on the EPA's authority to require information to determine

compliance. CAA § 208, 42 U.S.C. § 7542. The EPA issues no case-by-case pre-approvals of reasonable bases, nor exemptions to the Act's prohibitions on tampering and aftermarket defeat devices (except where such an exemption is available by regulation). A reasonable basis consistent with this Appendix does not constitute a certification, accreditation, approval, or any other type of endorsement by EPA (except in cases where an EPA Certification itself constitutes the reasonable basis). No claims of any kind, such as "Approved [or certified] by the Environmental Protection Agency," may be made on the basis of the reasonable bases described in this Policy. This includes written and oral advertisements and other communication. However, if true on the basis of this Appendix, statements such as the following may be made: "Meets the emissions control criteria in the United States Environmental Protection Agency's Tampering Policy (2016) in order to avoid liability for violations of the Clean Air Act." There is no reasonable basis where documentation is fraudulent or materially incorrect, or where emissions testing was performed incorrectly.

iv.
Notes on Reasonable Basis A: The conduct should be performed according to instructions from the original manufacturer (OEM) of the vehicle, engine, or equipment. The "certified configuration" of a vehicle, engine, or piece of equipment is the design for which the EPA has issued a certificate of conformity (regardless of whether design is publicly available). Generally, the OEM submits an application for certification that details the designs that of each product it proposes to manufacture prior to production. The EPA then "certifies" each acceptable design for use, in the upcoming model year. The "original configuration" means the design of the emissions-related elements of design to which the OEM manufactured the product. The appropriate source for technical information regarding the certified or original configuration of a product is the product's OEM. In the case of a replacement part, the part manufacturer should represent in writing that the replacement part will perform identically with respect to emissions control as the replaced part, and should be able to support the representation with either: (a) documentation that the replacement part is identical to the replaced part (including engineering drawings or similar showing identical dimensions, materials, and design), or (b) test results from emissions testing of the replacement part. In the case of engine switching, installation of an engine into a different vehicle or piece of equipment by any person would be considered tampering unless the resulting vehicle or piece of equipment is (a) in the same product category (e.g., light-duty vehicle) as the engine originally powered and (b) identical (with regard to all emissions-related elements of design) to a certified configuration of the same or newer model year as the vehicle chassis or equipment. Alternatively, Respondent may show through emissions testing that there is a reasonable basis for an engine switch under Reasonable Basis D. Note that there are some substantial practical limitations to switching engines. Vehicle chassis and engine designs of one vehicle manufacturer are very distinct from those of another, such that it is generally not possible to put an engine into a chassis of a different manufacturer and have it match up to a certified configuration.

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v.
Notes on emissions testin• Where the above-described reasonable bases involve emissions testing, unless otherwise noted, that testing must be consistent with the following. The emissions testing may be performed by someone other than the person performing the conduct (such as an aftermarket parts manufacturer), but to be consistent with this Appendix, the person performing the conduct must have all documentation of the reasonable basis at or before the conduct. The emissions testing and documentation required for this reasonable basis is the same as the testing and documentation required by regulation (e.g., 40 C.F.R. Part 1065) for the purposes of original EPA certification of the vehicle, engine, or equipment at issue. Accelerated aging techniques and in-use testing are acceptable only insofar as they are acceptable for purposes of original EPA certification. The applicable emissions standards are either the emissions standards on the Emission Control Information Label on the product (such as any stated family emission limit, or FEL), or if there is no such label, the fleet standards for the product category and model year. To select test vehicles or test engines where EPA regulations do not otherwise prescribe how to do so for purposes of original EPA certification of the vehicle, engine, or equipment at issue, one must choose the "worst case" product from among all the products for which the part or component is intended. EPA generally considers "worst case" to be that product with the largest engin.e displacement within the highest test weight class. The vehicle, engine, or equipment, as altered by the conduct, must perform identically both on and offthe test(s), and can have no element of design that is not substantially included in the test(s). vi. Notes on Reasonable Basis D: This reasonable basis is subject to the same terms and limitations as EPA issues with any such certification. In the case of an aftermarket part or component, there can be a reasonable basis only if: the part or component is manufactured, sold, offered for sale for, and installed on the vehicle, engine, or equipment for which it is certified; according to manufacturer instructions; and is not altered or customized, and remains identical to the certified part or component. vii. Notes on Reasonable Basis E: This reasonable basis is subject to the same terms and limitations as CARB imposes with any such certification. The conduct must be legal in California under California law. However, in the case of an aftermarket part or component, the EPA will consider certification from CARB to be relevant even where the certification for that part or component is no longer in effect due solely to passage of time.

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The foregoing Consent Agreement In the Matter ofMore Power Tuning. LLC. Docket No. CAAHQ-2019-8361, is Hereby Agreed and Approved for Entry. For More Power Tuning, LLC:

Signature
/

J

/

Date

.o

Printed Name: Michael Thomhill
Title:

Managing Partner

Address:

620 Poyner Dr
Longwood, FL 32750

Respondent's Federal Tax Identification Number:

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The foregoing Consent Agreement In the More Power Tuning, LLC, Docket No. CAA-HQ2019-8361, is Hereby Agreed and Approved for Entry. For Complainant:

f

Date

Air Enforcen•nt Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, DC 20460-0001

Joc'b"e-e•L. Adair, Attorney Advisor

Air Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, DC 20460-0001

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BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:

Docket No.
CAA-HQ-2019-8361

More Power Tuning, LLC
Respondent.

FINAL ORDER

Pursuant to 40 C.F.R. § 22.18(b) of the EPA's Consolidated Rules of Practice and section 205(c)(1) of the Clean Air Act, 42 U.S.C. § 7524(c)(1), the attached Consent Agreement resolving this matter is incorporated by reference into this Final Order and is hereby ratified.

The Respondent is ORDERED to comply with all terms of the Consent Agreement, effective immediately. So ordered I. ENVIRONMENTAL APPEALS BOARD

Date:

[Official Name of Lead Judge]
Environmental Appeals Judge

i. The three-member panel ratifying this matter is composed of Environmental Appeals

Judges

,

Consent Agreement and Final Order, CAA-HQ-2019-8361

,

and

Page 25 of 27

CERTIFICATE OF SERVICE
I certify that the foregoing "Consent Agreement" and "Final Order," In the Matter of More Power Tuning, LLC, Docket No. CAA-HQ-2019-8361, were filed and copies of the same were mailed to the parties as indicated below. Via Interoffice Mail:

Jocelyn Adair, US EPA, Air Enforcement Division
1200 Pennsylvania Avenue, N.W.
Mail Code 2242A
William Jefferson Clinton South Federal Building Room 1109
Washington, D.C. 20460
Via U.S.P.S. Certified Mail:

Mr. Adam M. Kushner
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 2004

Dated:
Annette Duncan, Secretary

U.S. Environmental Protection Agency
Environmental Appeals Board

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CERTIFICATE OF SERVICE
I certify that copies of the foregoing "Consent Agreement" and "Final Order," in this matter of In the Matter of More Power Tuning, LLC, Docket No. CAA-HQ-2019-8361, were sent to the following persons in the manner indicated:

Via Interoffice Mail:
Jocelyn Adair, US EPA, Air Enforcement Division
1200 Pennsylvania Avenue, N.W.
Mail Code 2242A
William Jefferson Clinton South Federal Building Room 1109
Washington, D.C. 20460

Adair.Jocel•ov
Via U.S.P.S. Certified Mail:

Mr. Adam M. Kushner
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
Adam. Kushner(a)
h•anlovells.com

Dated:
Annette Duncan, Secretary

U.S. Environmental Protection Agency
Environmental Appeals Board

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!
EAB Transmittal Memorandum and

Consent Agreement and Final Order

In the Matter of More Power Tuning, LLC, Docket No. CAA-2019-8361

Attorney: Jocelyn Adair

(202) 564-i011
WJCS Room

-

II09A

CERTIFICATE OF SERVICE
I certify that copies of the foregoing Consent Agreement and Final Order in the matter of More Power Tuning, LLC, Docket No. CAA-HQ-2019-8361, were sent to the following persons in the manner indicated: By First Class Certified Mail / Return Receipt Requested For Respondent More Power Tuning, LLC Adam M. Kushner Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington DC 20004 [email protected] By Interoffice Mail For EPA Office of Civil Enforcement Jocelyn Adair Air Enforcement Division Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Mail Code 2242A William Jefferson Clinton South Federal Building, Room 1109 Washington, DC 20460 [email protected]

Dated: _______
Sep 24 2019

---

Annette Duncan
Administrative Specialist