By Emma Penrod
When a federal court judge ordered reality television stars from the Diesel Brothers to pay an $850,000 fine for hundreds of violations of the Clean Air Act, Utah environmentalists heralded the news as a major victory in a four-year, David-and-Goliath-type legal saga.
But to Provo mayoral sustainability advisor Don Jarvis, the mere fact that Utah Physicians for a Healthy Environment had to sue to enforce penalties for federal offenses says a lot about the state of enforcement in Utah.
“It’s irritating that somehow a citizen group had to take these turkeys to court, and that it wasn’t the state,” Jarvis says. “I don’t understand that.”
According to the suit, the Utah Physicians group purchased a truck from the Diesel Brothers’ retail operation that was deliberately modified to produce more pollution by removing emissions control devices originally installed by the vehicle’s manufacturer. The physicians have also accused the Diesel Brothers of selling devices for individuals to install on their own vehicles to bypass emissions systems — control devices that are required under the federal Clean Air Act.
When the suit was filed in 2016, the broader problem of diesel emissions and illegal “defeat” or “cheat” devices installed on some trucks rolled into the public consciousness. Testing for these devices expanded in 2017 and became mandatory to register a vehicle in Utah’s most populous counties in 2018 via an act of the state legislature. Health officials on the Wasatch Front introduced hotlines for reporting smoking vehicles and trucks that “roll coal.”
But not all environmental violations are as visible as a jacked-up pickup that spews black smoke. In 2018, the year after the Weber-Morgan Health Department implemented emissions testing for diesel vehicles and began tracking offenders, environmental health program manager Scott Braedan noticed an unusual trend. Some of the trucks that failed in 2017 had, by the following year, experienced a change of address. It didn’t appear they had been sold, but rather the vehicle’s owners had registered the trucks in counties that do not require emissions tests under what appear to be false addresses.
While Braedan and other health officials have attempted to rein in what they consider fraudulent vehicle registrations, they’ve found there’s little they can do to close a loophole contributing disproportionately to Utah’s overall air emissions. There’s no penalty for falsely registering a vehicle in another county to avoid an emissions inspection. It’s not even clear which of the state’s regulatory agencies is responsible for finding the offenders.
“This problem … is just one of many examples where the laws are inadequate,” says Brian Moench, president of the Utah Physicians for a Healthy Environment board. “The bureaucracy is inadequate, the enforcement may be inadequate, and some of the individuals involved aren’t motivated enough to address it.”
‘Looking for a loophole’
It’s difficult to say exactly how many vehicles are fraudulently registered, to duck emissions inspections or for other purposes.
Take, for example, Salt Lake County, the most populous of the five Utah counties that requires diesel inspections (along with Utah, Davis, Weber and Cache). Tests in these counties are interchangeable, meaning a resident of Davis County can have their car tested in Salt Lake on their way home from work, according to Corbin Anderson, Air Quality Bureau manager for the Salt Lake County Health Department. In fact, Salt Lake County alone conducts more than half of the state’s emissions tests, testing some 46,220 diesel trucks in 2019, according to county records. According to state data from the Department of Motor Vehicles, based on the number of diesel vehicles registered in each testing county and each county’s inspection schedule, roughly 58,800 diesel trucks were due for emissions inspections in 2019.
Variable emissions requirements, the interchangeable testing locations and limitations on publicly available data mean cross-referencing high-level testing data won’t necessarily identify offenders. But health department officials have attempted to identify possible offenders by examining the vehicle’s emissions and registration history, and by verifying suspect vehicles’ new addresses. Inspectors from the Weber-Morgan Health Department identified 77 vehicles in 2018 that they believed were falsely registered in rural Wasatch Front-adjacent counties like Box Elder, Morgan and Tooele, where emissions tests are not required. Some of these vehicles’ owners had re-registered their trucks at unlikely home addresses, including PO boxes, UPS stores, and even campgrounds.
Based on his own experience in Salt Lake, Anderson says, “There’s a pretty good number of vehicles that are registered that way.”
In Utah County, health department Air Bureau technical specialist Mark Anderson has his own set of anecdotal evidence. New diesel vehicles can skip their emissions tests for the first five years. It’s when trucks turn five years old, he says, that many fail their first test, and then “fall off the map.”
“It’s not something that’s unusual, no,” Mark Anderson says. “Some of these guys are just looking for a loophole.”
The ‘supply’ side of cheating
Even though the number of modified diesels on Utah’s roads may seem small compared to the total number of vehicles in the state, these vehicles have a substantial and disproportionate impact on Utah’s air quality, Anderson says.
According to a 2019 EPA presentation on emissions defeat devices and tampering, when the emissions controls on a modern diesel-powered truck are removed or otherwise bypassed, that single vehicle will produce as much pollution as 300-400 unmodified automobiles. While nationwide data on the number of truck owners cheating on emissions inspections is difficult to come by, the EPA estimates that since 2009, the emissions controls have been removed or bypassed on more than a half million trucks, or 13% of the trucks sold in that time frame.
The majority of air pollution comes from mobile sources, in Utah and across the nation. According to the EPA, diesel vehicles account for 43% of most emissions from on-road sources. Gasoline vehicles, despite outnumbering diesels, produce just 37% of on-road emissions nationwide.
“I believe the people modifying their vehicles do it because they believe they will get enhanced performance,” Corbin Anderson said, “and they don’t think it’s as big an air quality issue. They think I’m just one person and it won’t be that big an issue, but it is.”
Concern about the large amount of emissions produced by a relatively small number of vehicles that do not comply with federal emissions standards has prompted the EPA to file more than 40 lawsuits against parts manufacturers, auto shops and other retailers who aid and abet individuals who desire to cheat on emissions inspections, addressing what the 2019 presentation calls the “supply” side of the equation. But according to the presentation, addressing the “demand” for emissions cheats falls to state and local regulators, whom the EPA calls upon to take steps including “preventing the registration of tampered vehicles.”
A small change
The five Utah counties that do test have, for the past several years now, worked together to accomplish this charge. Emissions tests are tracked across shared databases accessible not only to the health departments, but to testing centers themselves, according to Corbin Anderson. If a vehicle fails at an automotive shop in Salt Lake County, and then attempts to get a second opinion at another shop in Weber County, the second mechanic will be notified the vehicle in question already failed at a prior location. If illegal modifications, software or so-called “cheat” devices are detected on the vehicle during a test, the vehicle’s VIN will be flagged in the database and the owner informed they must take the truck to the health department’s emissions center for additional testing — regardless of where or how many times the driver attempts to re-test their vehicle.
“We keep legacy data for 20 years,” Corbin Anderson says, “and we have vehicles we have data on going back to when they were brand new almost.”
Utah health departments also conduct extensive audits of auto shops that conduct testing to ensure the mechanics themselves aren’t fudging the tests. These aren’t just based on data and reports — the health departments collect video of actual inspections so they can see if the mechanic attempted to cheat, Corbin Anderson says.
When it comes to cheat devices and mechanical tampering, Mark Anderson feels county health officials, including himself, have a good handle on the situation.
“I see the cheat devices put on, and I deal with those on a case-by-case basis,” he says. “I’m able to flag a vehicle that I believe has been tampered with, and I can flag for inspections at our facility. Most of those vehicles get corrected. But when they register out of the county, it takes that out of my hands.”
Testing data isn’t automatically shared with the Division of Motor Vehicles, which means that problem vehicles can potentially disappear across county lines when the registration is moved from one of the five emissions-testing counties to a region where the local health district has no emissions program.
Moench believes this should be a relatively easy problem to solve with a small change of administrative policy at the DMV: They simply need to require proof of address when residents register their cars.
“It wouldn’t take that much bureaucracy as far as I can see, that in order to get a permit you have to have a matching address indicating you live in the county you’re trying to get a permit for,” he says. “They could pretty well put a quick stop to this.”
Given the disproportionate amount of pollution these cars generate, and Utah’s need to manage levels of ozone in the summer and particulate matter in the winter, stopping fraudulent vehicle registrations seems to Moench to be “low hanging fruit” for the state — significant impact and easy to solve.
“If you look at all the other problems we’ve got — urban development, land use planning and all the lifestyle implications of people using mass transit instead of individual cars — those are problems that are expensive, and they involve the disruption of long-term habits,” Moench says. “This really is not one of those things at all. It doesn’t involve disruption of lifestyle. It doesn’t involve disruption of urban planning — just one of the state’s bureaucracies deciding it’s going to address the problem and doing a little bit of (information technology) work to make it happen.”
Health department officials are less convinced the solution is simple. Because falsifying one’s address on a vehicle registration is technically tax fraud, the DMV does have dedicated personnel who investigate such matters. At the Weber-Morgan Health Department, Braeden’s team has taken to reporting vehicles they suspect have registered at a false address to avoid emissions tests to their local inspector at the DMV, who has gone so far as knocking on doors to verify the vehicle’s purported new address.
But resources are strained — the one DMV officer assigned to Weber County covers three other counties. And this year has proven particularly difficult, with the pandemic preventing inspectors from questioning residents in-person about the whereabouts of vehicles registered to their address.
Braeden would like to see the DMV implement a proof of residency requirement as suggested by Moench — in fact, he’s recommended such a measure in the past.
“We haven’t given them too many suggestions, because we don’t want to step on their toes. But I know other cities and stuff will require you to show proof of residency like a utility bill. It would be easy,” Braeden says, but “we’ve brought it up to the DMV for so many years, and we’ve hit a brick wall.”
According to DMV correspondence manager Dana Johnson, the complexity of requirements surrounding vehicle registrations means the division is “not able to ensure … the information (addresses) provided to the division is accurate and true.” A customer might reside in Salt Lake County, she said, but would like to pick up their mail at the post office near their work and might own a hunting cabin in another county where they prefer to keep the vehicle they plan to register. On top of this, each county has its own requirements and regulations with respect to vehicle registration.
“Since we cannot ensure that a customer is providing accurate information or that they are going to only use said vehicle in the county where they register,” Johnson wrote in an email, “any citation or penalty would fall under the purview of local law enforcement and not that of the Division of Motor Vehicles.”
But getting local law enforcement to take air quality regulations seriously has proven equally difficult, says Provo mayoral advisor Jarvis.
“Police say they’re busy tracking down real dangerous offenders and don’t want to spend their time on that. It’s been almost impossible to get law enforcement to enforce things like idling ordinances, which also produce a lot of pollution,” he says. “It would be nice if the state and county authorities could find a vertebrae and do some regulation.”
To Mark Anderson, the bureaucratic confusion, lack of funding and resources, and absence of penalties for violations means solving the issue of fraudulent vehicle registrations and emissions tests will require action higher up Utah’s governance ladder. “There’s no simple answer,” he says. “To fix any of these problems would take legislative action by our state.”
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