24 August 2018

U.S. EPA and DOJ Bring Criminal Prosecution for Tampering with On-Board Diagnostic Systems on Vehicles

Earlier this summer, the Department of Justice (DOJ) and Environmental Protection Agency’s (EPA) criminal office announced criminal charges against employees of an oil and gas operation for tampering with and disabling pollution controls and on-board diagnostic (OBD) systems on the company’s truck fleet. DOJ and EPA charged five employees of Rockwater Northeast LLC, a company that services the hydraulic fracturing industry, for modifying emission control and OBD systems on approximately 30 of the company’s heavy-duty diesel trucks.

In alleging criminal activity associated with the OBDs, EPA relied on an aggressive legal interpretation of Section 113(c)(2)(C) of the Clean Air Act (the Act). It imposes criminal penalties for any person who “knowingly falsifies, tampers with, renders inaccurate, or fails to install any monitoring device or method required to be maintained or followed” under the Act. 42 USC 7413(c)(2)(C) (emphasis added) This general provision is found in Title I of the Clean Air Act, which regulates stationary sources of emissions such as power plants and factories. Consistent with the structure of the Act, EPA has historically relied on Section 113(c)(2)(C) to prosecute owners of stationary sources that manipulate stack tests by not conducting tests under normal operating conditions, falsifying laboratory test results or intentionally bypassing emissions around monitoring devices. It is also well known that U.S. Rep. John Dingell sought to exempt mobile source issues regulated under Title II of the Act from criminal enforcement, relying instead on the civil enforcement provisions of the statute.

EPA’s new interpretation breaks from this history and expands criminal enforcement to mobile sources regulated under Title II of the Act such as cars and trucks. Historically, EPA pursued these types of tampering or OBD cases within the administrative or civil judicial process. This announcement highlights the shift within EPA and DOJ to focus enforcement resources on mobile source issues, particularly in light of the strategy of deferring to state regulators on stationary source matters under Title I of the Act.

We expect that EPA and DOJ will continue to shift toward mobile source enforcement, particularly OBD, as exemplified in the Rockwater matter.