THE CLEAN AIR ACT, EMISSIONS CONTROLS DELETES AND DEFEAT DEVICES The EPA Is Visiting Dealers Near You! By R. J. “Jim” Sewell Jr., MTADA General Counsel As they say, “a word to the wise . . .” The Clean Air Act (CAA) was enacted by Congress in 1970 and amended in 1977 and again in 1990. Section 42 U.S.C. § 7522(a)(3)(B) of the CAA prohibits the manufacture, sale or offer to sell or install a part or component for a motor vehicle, where a principle effect of the part or component is to bypass, defeat, or render inoperative any emission control device. Further, it is a crime under 42 U.S.C. § 7413(c)(2)(C) to falsify, tamper with, render inaccurate, or fail to install any “monitoring device or method” required under the CAA. Vehicle Onboard Diagnostics (OBD) are such a “monitoring device or method” required by the CAA. Criminal penalties can include large fines and jail time. The civil penalties alone are significant. Manufacturers or dealers are exposed to $45,268 per violative vehicle or engine. Max penalty for individuals is $4,527 per violative vehicle or engine. Max penalty per defeat device is $4,527. Penalties are in addition to the cost of bringing the violative vehicle or engine back into compliance. In addition to the CAA regulations, under Mont. Code Ann. §75-2-204 and Rule 17.8.325, MAC, it is unlawful under Montana law to remove, alter or otherwise render inoperative, exhaust emission control, crank case ventilation or any other air pollution control device which has been installed as a requirement of federal law or regulation AND it is unlawful to operate a motor vehicle originally equipped with air pollution control devices as required by federal law or regulation on the highways of this state unless such devices are in place and in operating condition. A violation is punishable by a fine of not more than $10,000 per violation or imprisonment for a period not to exceed two years, or both under Mont. Code Ann. §75-2-412. Most dealers understand, or are at least aware of, these prohibitions. However, the proliferation of “deleted” vehicles — particularly diesel pickups — in the stream of commerce shows that not everyone appreciates the risk. A 2020 EPA report estimates that between 2009 and 2019, 9,199 (10.9%) of the 84,114 registered diesel vehicles in Montana were deleted. This places Montana 18th in the nation, behind North Dakota (18%), Idaho (15%), Wyoming (14%), and Washington (13%). A significant number of these deleted vehicles pass through nearby auction markets each week, indicating strong public demand. Taken literally, it is not illegal under the CCA or the Montana Code to buy or to sell vehicles with, for instance, the EGR valves removed; however, once the EGR valve is removed, it is illegal to operate the vehicle on the roads of Montana. Since it is not lawful to operate a modified vehicle here, we have advised Montana dealers for a long time not to sell deleted vehicles at retail. A retail sale raises the risk that the consumer will come back on the dealer to remedy the problem or seek to unwind the deal or recover damages under the Consumer Protection Act. It’s a no-win situation, and there appears to be more trouble on the horizon. 10 MONTANA AUTO DEALER
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