VMP Tuning, Inc. (Board decision, September 24, 2019)
In re VMP Tuning, Inc. (EAB CAA Appeal No. 19-05C): $60,000 defeat-device settlement
Apply this precedent to your situation
This is citable Board precedent from 2019, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
VMP Tuning, Inc. sold aftermarket parts for Ford light-duty gasoline vehicles. EPA alleged that between January 1, 2014, and November 2, 2015, the company sold 1,409 tuners, 45 catalyst eliminator pipes, and 88 EGR eliminators, for a total of 1,542 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 three installments totaling $60,000 plus stated interest and imposed a compliance plan requiring the company to avoid prohibited tampering and defeat-device 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, 86.1844-01, 86.1806-05, and 1068.101(b)(2)
- Outcome: The Consent Agreement was ratified, a $60,000 civil penalty was assessed with three scheduled installments and stated interest, and VMP Tuning was ordered to follow the compliance plan.
- Key point: The settlement paired a staged penalty with a continuing obligation to avoid aftermarket parts and software that defeat vehicle emissions controls.
Full text (EPA EAB public release, authorized Sofya fallback transcription)
F I L E D
Sep 24 2019
Clerk, Environmental Appeals Board
ENVIRONMENTAL APPEALS BOARD INITIALS ______
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
)
)
In re: ) Docket No. CAA-HQ-2019-8364 VMP Tuning, Inc. )
)
)
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 By: ________
Mary Kay Lynch
Environmental Appeals Judge
1
The three-member panel deciding this matter is composed of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.
Page 2
VMP TUNING, INC., DOCKET NO. CAA-HO.-2019-8364
REDACTIONS
- CBI" Last column of Appendix A, titled "o,uantity Sold"
- Federal Identification Number: Signature Page
Page 3
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In the Matter of:
Docket No.
VMP Tuning, Inc., CAA-HQ-2018-8364
Respondent.
BUSINESS CONFIDENTIALITY ASSERTED
Consent Agreement Appendix A contains material claimed to be confidential business
information ("CBI") pursuant to 40 C.F.R. § 2.203(b). The material claimed as CBI is located in
the last column of Appendix A, titled "Quantity Sold," which consists of respondent VMP
Tuning, Inc.'s total domestic sales of specific products occurring between January 1, 2014, and
November 2, 2015. The material claimed as CBI has been deleted from the publicly-available
copy of Appendix A. A complete copy of Appendix A containing the material claimed as CBI
has been filed with the Hearing Clerk. If you have any questions, please contact Jocelyn Adair at
(202) 564-1011, or at [email protected].
Page 4
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:
Docket No.
VMP Tuning, Inc. CAA-HQ-2019-8364
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)(!) of the CAA, 42 U.S.C. § 7524(c)(I). EPA Delegation 7-6-A. -
Respondent in this matter is VMP Tuning, Inc., ("VMP"). Respondent is a corporation
organized under the laws of the State of Florida with an office and warehouse at 170
Page 5
South SR 415, New Smyma Beach, Florida 32168. VMP offers for sale and sells
aftermarket motor vehicle parts for use on gasoline fueled light-duty motor vehicles
manufactured by the Ford Motor Company ("Ford").
-
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 -
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 morecauses 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).
-
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).
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 2 of 25
Page 6
Governing Law
-
This proceeding arises under Part A of Title II of the CAA, CAA §§ 202-219, 42 U.S.C.
§§ 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 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. § 7522(a)(3)(B).
-
"Motor vehicle" is defined in section 216(2) of the CAA, 42 U.S.C. § 7550(2), as "any
self-propelled vehicle designed for transporting persons or property on a street or
highway."
ll. Section 203(a)(1) of the CAA, 42 U.S.C. § 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").
-
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.
§ 7525(a), to certify that a particular group of motor vehicles conforms to applicable EPA
requirements governing motor vehicle emissions.
-
Under section 202 of the CAA, 42 U.S.C. § 7521, EPA promulgated emission standards
for HC, NOx, and CO. See generally 40 C.F.R. Part 86.
-
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
emissions standards for NOx, CO, HC, and other pollutants. 40 C.F.R. §§ 86.004-21,
86.1811-04, 86.1844-01.
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 3 of 25
Page 7
-
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.
-
"Element of Design" means "any control system (i.e., computer soft-ware, 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. Manufacturers 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.
-
"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).
-
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
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Page 8
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.
-
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).
-
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 orelement 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."
-
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).
-
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
December 6, 2013, through November 2, 2015. CAA § 205(a), 42 U.S.C. § 7524(a);
40 C.F.R. § 19.4.
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 5 of 25
Page 9
-
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 theDOJ 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 -
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 including ignition timing and fueling strategy. The ECM continuously monitors
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 6 of 25
Page 10
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/calibrations/maps") that have the effect of altering vehicle emissions
control systems or elements of design or facilitating the bypass or deletion of
vehicle emissions control devices.
Factual Allegations
-
EPA alleges the following:
(a) VMP 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 November 2, 2015, VMP sold and offered for sale
1,409 Tuning Products (the "Subject Tuners") as described in Appendix A to this Consent Agreement, Table 1.(c) VMP advertised and sold the Subject Tuners for use on 1996 to 20 i 5 model year
Ford light-duty gasoline motor vehicles.(d) The Subject Tuners and custom 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.
Consent Agreement and Final Order. CA.A-HQ-2019-8364 Page 7 of 25
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(e) Between January !, 2014, and November 2, 2015, VMP also sold and offered for
sale 45 exhaust systems that are used to bypass, defeat, or render inoperative the
catalytic converter on certain Ford motor vehicles (the "Subject Catalysts
Eliminator Pipes") as described in Appendix A to this Consent Agreement, Table
2.
(f) Finally, between January i, 2014, and November 2, 2015, VMP sold and offered
for sale 88 superchargers that eliminated the EGR system on certain Ford motor
vehicles (the "Subject EGR Eliminators") as described in Appendix A to the
Consent Agreement, Table 3.
Alleged Violations of Law
-
EPA alleges that, between January !, 2014, and November 2, 2015, Respondent offered
for sale and sold !,542 Defeat Devices, i.e., the 1,409 Subject Tuners, the 45 Subject
Catalysts Eliminator Pipes, and the 88 Subject EGR Eliminators. 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 p•.rts and components were being
offered for sale or installed for such use or put to such use.
-
EPA alleges that, as a person who sold and offered for sale, 1,542 Defeat Devices, i.e.,
the 1,409 Subject Tuners, 45 Subject Catalysts Eliminator Pipes, and 88 Subject EGR
Eliminators, VMP committed 1,542 violations of section 203(a)(3)(B) of the CAA, 42
U.S.C. § 7522(a)(3)(B).
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Page 12
Terms of Agreement
-
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.
-
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 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;
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 9 of 25
Page 13
(e) agrees that Respondent may not delegate duties under this Consent Agreement to
any other party without the written consent oftheEPA, 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;
(f) 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).
-
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;
Consent Agreement and Final Order, C.4A-HQ-2019-8364 Page 10 of 25
Page 14
(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 attorney fees in the action resolved by
this Consent Agreement and attached Final Order.
-
Respondent agrees to pay to the United States a civil penalty of $60,000 (the Civil
Penalty). The EPA has reduced the civil penalty on the basis of information produced by
Respondent to support its claim that it is unable to pay a higher civil penalty and continue
to remain in business.
-
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 three consecutive installments with interest as follows:
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Page 15
Installment Due By Payment Principal Interest (1%)
Payment #1 Within 30 days of $30,000 $30,000 $0.00
effective date of CAFO
Payment #2 Within 6 monthsof $15,000 $15,000 $150
effective date of CAFO
Payment #3 Within 12 months of $15,000 $0.00 $75
effective date of CAFO
-
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.e•ov/financial/additional-instructions-makin•;(b) Identify each and every payment with "Docket No. CAA-AED-2019-8364; and
(c) Within 24 hours of payment, email proof of payment to Jocelyn L. Adair,
Attorney-Advisor, 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- AED-2019-8364"). -
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,
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 12 of 25
Page 16
Respondent agrees to implement the Compliance Plan attached as Appendix B of this
CAFO.
Effect of Consent Agreement and Attached Final Order
-
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 maysubject 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.
-
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. § 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,
Consent Agreement and Final Order. CAA-HQ-2019-8364 Page 13 of 25
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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.
-
Penalties paid pursuant to this Consent Agreement are not deductible for federal tax
purposes. 28 U.S.C. § 162(0.
-
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 withall 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
regulations, nor shall it be construed to be a ruling on, or determination of, any issue
related to any federal, state, or local permit.
-
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
Consent Agreement and Final Order, CA,4-HQ-2019-8364 Page 14 of 25
Page 18
equitable remedies for the alleged violations of law. The EPA shall give Respondent
written notice of such termination, which will be effective upon mailing.
-
The Parties agree to submit this Consent Agreement to the Environmental Appeals Board
with a request that it be incorporated into a Final Order.
-
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 a•er 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 Vehicle Application Part/ Redacted
Component
7015, L 1, L2, and L3 1996 2015 Ford
-
SCT X4 Flash Tuner
3000, B, x3cgt500 1996 2015 Ford
-
SCT X3 Flash Tuner
PRP Pro 1996 2015 Ford
-
SCT Pro-racer software
13GT500Stage 1 2013 2014 Ford Mustang
-
VMP Shelby GT 500
GT500 5.8L 4V Upgrade Package
2015 NAStage 1 2015 Ford Mustang GT VMP Power Package
50LSCTUNE 2011 2014 Ford Mustang GT
-
SCT Tuner
REMOTE TUNE 1996 2015 Ford
-
SCT Tuner
0304 Cobra Tune 2003 2004 Mustang 4.6L 4V
-
SCT Tuner
WSCTUNE 2005 -2010 Mustang 4.6L 3V SCT Tuner
and Ford F150 5.4L 3V
PowerPakstage2 2011 2014 Mustang 5.0L 4V
-
SCT Tuner
PowerPakstage4 2011 2014 Mustang 5.0L 4V
-
SCT Tuner
Total
TABLE2
(Su•ectCmalystsEliminatorPipes)
Part Number Vehicle Application Redacted
LP- 162903 2011-2014 Ford Mustang 5.4 5.8L 4V
-
LP- 162904 2011-2014 Ford Mustang 5.4 5.8L 4V
-
LP-164203 2011-2014 Ford Mustang 5.0L 4V
LP- 164204 2011-2014 Ford Mustang 5.1 4V
LP-2011GT5000RX 2011-2014 Ford Mustang 5.4L 5.8L 4V
-
LP-GT5000R 2007-2010 Ford Mustang 5.4L 4V
OX 2005-2014 Ford Mustang 4.6, 5.4L, 5.8L, 5.0L
Total
TABLE 3
(Subject EGR Eliminators)
Part Number Manufacturer Vehicle Application Part!Component Redacted Cobra TVs Roush Performance 2003 2004 Ford
-
VMP TVS Supercharger
Mustang 4.6L 4V Upgrade
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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 Tame_p_.•0• and Aflermarket Defeat Devices
The Act's prohibitions against tampering ,and af•ermarket 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. ! 01 (b)(I): "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."
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
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exhaust (e.g., filters, catalytic convertors, and oxygen sensors). Section 203(a)(3)(B) prohibits (among other things) aflermarket 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 I A (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 afiermarket defeat devices.
Principle 1: Respondent Will Not Modify.a_.qy 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 Subject 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 fully document its reasonable basis, as specified in the
following section, at or before the time the conduct occurs.
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
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A° Identical to Certified Configuration: Respondent generally has a reasonable basis if its
conduct: is solely for the maintenance, repair, rebuild, or replacement of an emissions-
related element of design; and restores that element of design to he identical to the
certified configuration (or, if not certified, the original configuration) of the vehicle,
engine, or piece of equipment, iV
go Replacement After-Treatment Systems: Respondent generally has a reasonable basis if
the conduct:
(I) involves a new after-treatment system used to replace the same kind of system on
a vehicle, engine or piece of equipment and that system is 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.
C. Emissions Testing: v Respondent generally has a reasonable basis if the conduct:
(1) alters a vehicle, engine, or piece of equipment;
(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 emissions-
related 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
ENDNOTES
i OBD system includes any system which monitors emission-related elements of design, or that assists repair technicians in diagnosing and fixing problems with emission-related elements of design. Ifa problem is detected, an OBD system should record a diagnostic trouble code, illuminate a malfunction indicator light or other warning 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, 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 thereo f.
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ii Here, the term conduct means: all service performed on. and any change whatsoever to, any emissions-related 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 concemin•the 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 afl.ermarket 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 o f endorsement by EPA (except in cases where an EPA Certi fication itsel f co nstitutes 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 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 that design is publicly available). Generally, the OEM submits an application for certification that details the designs 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 C. 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.
v Notes on emissions testing2: 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 testi ng 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
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Page 24
"worst case" to be that product with the largest engine displacement within the highest test weight class. The vehicle, engine, or equipment, as altered by the conduct, must perform identically both on and off the test(s), and can have no element of design that is not substantially included in the test(s). vi Notes on Reasonable Basi s D: This reasonable basis is subject to the same terms and limitations as EPA issues with any such certification. In the case o fan aftermarket part or component, there can be a reasonable basis only if: the part or component is manufactured, sold, offered for sale, or 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 certi fication 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 of VMP Tuning, Inc., Docket No. CAA-HQ- 2019-8364, is Hereby Agreed and Approved for Entry.
For VMP Tuning, Inc.:
Signat
Printed Name:
•-•
Justin Starkey
9/2/19
Date
Title:
President
Address:
170 S SR 415, New Smyrna, FL
Respondent's Federal Tax Identification Number:
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The foregoing Consent Agreement In the matter of VMP Tuning, lnc., Docket No. CAA-HQ- 2019-8364, is Hereby Agreed and Approved for Entry.
T
Air Enforcement tgwision
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, DC 20460-0001
Jocelyn L. Adair, Attorney Advisor Date
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
Consent Agreement and Final Order, CAA-HQ-2019-8364 Page 23 of 25
Page 27
BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of:
Docket No.
VMP Tuning, Inc. CAA-HQ-2019-8364
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 1.
ENVIRONMENTAL APPEALS BOARD
Date:
[Official Name of Lead Judge]
Environmental Appeals Judge
1
The three-member panel ratifying this matter is composed of Environmental Appeals Judges
, ., and
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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 VMP Tuning, lnc., Docket No. CAA-HQ-2019-8364, 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•
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•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 VMP Tuning, INC., Docket No. CAA-2019-8364
Attorney: Jocelyn Adair
(202) 564-1011
WJCS Room- l109A
Page 30
CERTIFICATE OF SERVICE
I certify that copies of the foregoing Consent Agreement and Final Order in the matter of VMP Tuning, Inc., Docket No. CAA-HQ-2019-8364, were sent to the following persons in the manner indicated:
By First Class Certified Mail / Return Receipt Requested
For Respondent VMP Tuning, Inc.
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
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