Turbo Diesel Register

TDR 79 - TDReview
by Robert Patton

Hello TDR audience. The following is an article from our Issue 79 magazine that discusses the ongoing saga of strict emissions control/compliance and how this affects the aftermarket performance business.

Following this article is a press release from the EPA about products sold by EDGE Products.

I'm hopeful my article gives you a better understanding of what is happening in the performance aftermarket so that you can make informed decisions should you want to hot-rod the engine in your Turbo Diesel truck.

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Several subtitles for this article come to mind.

“It Ain’t Illegal ‘Till You Get Caught”
“Rules, What Rules?”
“Can’t Hit a Moving Target”
“The Consumer’s Dilemma”
“Competition/Racing Use Only”
“Shell Game”
“That’s Not Fair”
“Someone’s Going to Jail”
“What’s Next?”

As I looked at the subtitle selection I had jotted down, I realized that I had just written an outline for this 2013 performance parts update article. Before I jump into the report, let me give you some background information on the subject.

Background

Every year at the Specialty Equipment Manufacturers Association (SEMA) convention there is an opportunity for the performance aftermarket manufacturers to meet with their SEMA representatives and review the government regulations [specifically the EPA and the California Air Resource Board (CARB)] that apply to the products they offer to the public.

To keep this brief, I’m going to give you the TDR chapter-and-verse as well as a summary of what has happened at previous SEMA meetings. The review is necessary for you to get the big picture and understand the results of the 2012 SEMA meeting.

November 1999, Issue 26, pages 32-33: “Uprates, Emissions, Aftermarket Parts and Your Warranty.” This 13-year-old article spells out the basics:

Diesel hot rodding was in its infancy.
Tampering with emission control devices is a violation of Section 205/203(a) of the Clean Air Act and penalties of up to $25,000 per day of violation can be levied. This is no surprise; did we not live through the first catalytic converters on automobiles back in 1974?
For the most part, the aftermarket ignored the threat of penalty.
The TDR was forthright in telling you that “if you play, be willing to pay.” When engine or driveline components fail, do not expect any warranty consideration. We coined the phrase “I am my own Warranty Station.”

At the conclusion of the Issue 26 article we wondered about the “teeth of the EPA law [Clean Air Act, Section 205/203(a)]. Do the teeth bite?”

Previous Updates

May 2008, Issue 60, pages 50-52: “Déjà vu All Over Again.” In this article I went back to Issue 26, November ’99 to remind you of the potential for a $25,000 fine from the EPA for tampering with emission control devices. However, it was almost nine years since the first article was written and the diesel performance aftermarket business had exploded. The government regulatory agencies aren’t blind, but until the ’07.5 engines (with their exhaust gas recirculation and regenerative particulate traps) there really was not any serious talk about enforcement. Vendors and customers ignored the $25,000 dilemma and purchased products that were not compliant. The TDR published many how-to articles about performance. Smoke happens, but the vendors, sales agents, magazines and customers were below the radar screen.

At the close of the May 2008 article I noted, “As we learned, the ’98.5-’02 customer can seek-out CARB EO certified products, but prior to and after those dates there is a void. This void was previously overlooked, but now has the momentum to be addressed. Thanks go to SEMA for their efforts in developing engine-in-vehicle dyno test procedures over the past year.”

February 2010, Issue 67, pages 30-34: “What is the Latest on Performance Parts for the 6.7-liter Engine?” In this article I reviewed the performance parts for the ’07.5 6.7-liter engine that were found at vendor booths at the November 2009 SEMA show. The article cautioned the audience that none of the products had the elusive CARB executive order (EO) number.

February 2010, Issue 67, pages 42-44: “Emissions Legislation in California.” This article focused on the new-to-be-implemented CARB (January 1, 2010) smog check. An update was presented that discussed that the CARB EO testing process was still in a state of confusion over how the test would be conducted. A stalemate is desired? A lack of funding for CARB? A lack of personnel?

A big “oops” hits California Turbo Diesel owners smack in the face. In order to get a new tag for 2010, the truck’s engine is inspected and aftermarket items are scrutinized for CARB EO numbers. How did the aftermarket vendor get an EO number if a testing protocol/submission process was on-again, off-again?
This was a major problem for all involved parties—the owner, the CARB inspection station, and the aftermarket vendors. Although not covered in the TDR, the folks at SEMA stepped in and worked with CARB to allow the aftermarket vendors to present their products (parts for the previous 5.9-liter engines as well as the new 6.7-liter) under the category of “Parts in Progress” (PIP). Vendors had a limited window to submit their parts for the yet-to-be determined testing. CARB inspections stations could do the visual inspection of the owner’s vehicle and, where applicable, check the state’s PIP listing of a part to give the truck owner a pass/fail on the part that was on the owner’s engine.

Complicated?

No doubt, the situation is complicated…but I’m getting a bit ahead of myself. The PIP program does exist and, finally, there is a testing protocol for the aftermarket vendors. Bottom line: I’m thankful that my truck is registered in Georgia. More on the PIP, testing protocol, and California in the body of this article.
Finally, if you do not have TDR magazines 60 and 67, you can download them at the TDR’s web site or download the TDR’s Turbo Diesel Buyer’s Guide (TDBG) and read pages 70-75.

WHAT IS NEW FOR 2013?

With the background gobbledy-gook out of the way, let’s focus on new data from the 2012 meeting at SEMA.

It Ain’t Illegal ‘Till You Get Caught

First things first, let’s talk about an owner’s exposure. Let’s say you’ve got a truck that has performance upgrades and you’re a bit nervous. None of the parts or programmers have any kind of “CARB EO# approved” decals on them and you understand there could be a fine for tampering with emissions control devices. You read the background information and you understand that likely the parts will never have such numbers or approval—much less, how would you ever find out about the approval?

Are you exposed? Well, borrowing an old phrase from the North Georgia moonshiners, “It ain’t illegal ‘till you get caught,” and the chances of such are slim to none.

Think about it, what’s going to happen? You bop down to your state’s emissions test facility and the truck does not pass the state test. Ernie-the-emissions tester does not have a hot line to the EPA, he simply says, “Hey, Buster, you didn’t pass our test. Change some stuff on your truck and come back next week.”

My opinion: No, not the EPA, nor is CARB, nor is your state looking for you.

Rules, What Rules?

Before we get into the nitty-gritty of trying to understand the emissions certification process, it is important to understand who is making the rules.

Well? Who is making the rules?

Your truck is manufactured by Ram and the emissions testing is certified by the EPA. The fine for tampering with an emissions control device is levied by the EPA.
How does the aftermarket give the customer a performance part that does not run afoul of the EPA? Statements made by EPA officials at these yearly SEMA meetings have all of the involved parties on the same page—the EPA agency accepts CARB EOs as a reasonable basis for meeting federal anti-tampering policy.

So, if it is good enough and certified by the CARB EO process, it is good enough for the EPA not to bother a vendor and his customer.

Can’t Hit a Moving Target

From all of the discussion at SEMA and all of the confusion about diesel aftermarket performance parts, you would think this was the regulatory agencies’ first rodeo. It isn’t, the process is just excruciatingly complex and slow. After attending these annual meetings I would often wonder if they want to give the vendors an official testing procedure.

Common sense dictates that it takes more fuel to make more power. Emissions will be increased. How about a logical allowance? Oops, I forgot, there are multiple parties involved and the decision making process can be lengthy. Likewise, from year to year the test procedure to meet the emissions goals would change.
Did I mention that the aftermarket vendors would often disagree on how an emissions tests should be conducted?

Also, consider that the discussions have happened during dire economic times:

Is there a lack of funding for CARB?
Is there a lack of personnel or test facilities to do the testing?

Thankfully, SEMA, the EPA, CARB and those vendors that want to play by the rules are getting closer to an understanding. I sense that those with blatant disregard are in for a difficult time.

The Consumer’s Dilemma

In this article’s background information I touched on the consumer’s dilemma for those owners in California. CARB’s “Products in Progress” web page does exist for those vendors that have submitted their parts for EO applications. In the November meeting I learned that the window for the PIP program is now closed for new applications; however, there are extensions for the four or five companies that are actively involved in the process.

Without having gone through an emissions test in California, I cannot tell you, from experience, how the inspection process works. However, if you wish to review the documentation and inspection procedures for California, you can find the data in Issue 67, pages 42-44. I can tell you that what happens in California does not stay in California. I can imagine that once the particulars are ironed out that you’ll see similar tests being adopted by other states
.
How long will this take and what states will follow California’s lead? Good questions to which I have no further insight. Again, I’m thankful I live in Georgia.

Competition Use Only

“Dear Mr. Editor,

“This is so easy to work around. I’ve seen this in some of the Diesel This-and-That magazines; the vendor offers the product as ‘Off Road Use Only’ or ‘Competition Only.’

“Now, we all know how the part works and that it does make horsepower. Assuming that we live in a state other than California, what’s the big deal?

“Tell the vendors to send the commission check(s) for this simple marketing trick to my PO Box.”

Signed,
Billy Blacksmoke

As I observed earlier, with all of the fumbling around you might think this is the first rodeo for the EPA and the folks at CARB.

You might also think that the agencies were blind to reading anything other than the “Bureaucratic Times.”

Such is not the case.

Here is the story. First, forget about offering a part under the guise of “Off Road Use Only.” The state of California and the EPA already have emissions laws for off road equipment. Checkmate.

So, let’s look into “Competition Use Only.” As far back as 1990, the folks at SEMA tried to come to an agreement on what constitutes competition use only. I listened as a SEMA representative recounted some of those meetings and the absurdity would make your head spin. To this day, there is still not a definition for “competition use only.” However, there is an understanding in the industry: “If you know or should have known that the part could be used as an emissions defeat device on a licensed vehicle, then the part is not for competition use only.”

Shell Game

The previous quote “If you know or should have known that the part could be used as an emissions defeat device on a licensed vehicle, then the part is not for competition use only” is key to the shell game.

Recall from the background information I gave you, prior to the ’07.5 engines the EPA had not focused on the diesel aftermarket. And were you at the yearly SEMA meetings you may have drawn the same conclusion as I: the EPA was going to live and let live on those pre- ’07.5 products, but the aftermarket vendors had better take notice and go through an approval process for future products that would have to work in concert with all of the auxiliary emissions control devices (AECDs) that were necessary for the new trucks to meet the ’07.5 regulations.

This makes logical sense: The ’07.5 and newer trucks sure have more “stuff” connected to the exhaust pipe than did previous generations of pickup trucks.

Okay, here is where the shell game starts. No one reading this is stupid—it takes extra fuel to make extra horsepower. To properly clean up the extra emissions it would take extra capacity AECD’s. (Lots of “extras” in those sentences.) Those vendors without regard for the “If you know or should have known” sentence that defines competition use thought that they had a way around the law. If you purchased directly from the vendor, the end customer would fill out a disclaimer saying that the customer acknowledged the performance part would be used only on his or her sled pull or drag race truck.

Maybe, maybe, the shell was moved from over the vendor’s head to over the customer’s head?

Not really, in subsequent SEMA meetings it was strongly emphasized to the aftermarket vendors that the shell game was not valid. You see, EPA has 20/20 vision too, and it doesn’t take too many YouTube videos or trips to a competition event to see the competition-only vehicle drive over the curb and onto the highway—current state license tag a-shining in the video.

How did the disclaimer/shell game work if you purchased the product from a local performance shop who, in-turn, may have either purchased direct from the vendor or purchased the product from a warehouse distributor? Good question.

Another good question would be, “How far into the shell game does the EPA go in its zeal for enforcement of fines?”

Here is another “Only my Opinion”: The EPA will first focus its attention on the aftermarket performance vendors in hopes that the aftershock will jolt the rest of the distribution system.

That’s Not Fair

Okay, rewind your VCR tape back to the Fall of 2007. (VCR tape—remember those? Weren’t those still used in 2007?) The meeting at SEMA adjourns and the aftermarket performance vendors who, undoubtedly already are developing ’07.5 products, return to their shops to try and play by the rules.

But, remember, the EPA has delegated the rules to the state of California and its Executive Order process. “If it’s good enough for California it’s good enough for the other 49 states.” And, as we have learned, the CARB EO process is still a boondoggle.

So, how does the vendor play by the rules?

Better yet, how does the vendor that plays by the rules compete with the vendor that shows a blatant disregard for the rules process?

Obvious answer, it is virtually impossible to compete. You can only imagine the anger, tension and anxiety that I would see from the performance community at the conclusion of the subsequent yearly SEMA meetings.

That’s not fair.

Really, it wasn’t and isn’t.

I used the past tense “wasn’t” on purpose. The vendor with “blatant disregard” is easy to spot. Just open up the latest Diesel This-and-That magazine and look at the advertisements. There have been two “Cease and Desist” letters served by the EPA.

I use the word “isn’t” because there is more EPA enforcement to come. You see, the level of disregard for the EPA and CARB’s rules varies. Also, remember those warehouse distributors that were a part of the shell game? Their level of disregard for the rules varies also.

Who will be the next to receive an EPA Cease and Desist letter?

Someone is going to Jail

Well, that’s my prediction.

Here is how the process works: The EPA sends the offending party a cease and desist letter. This starts the ball rolling with a request for information about the product; the testing (or lack thereof) of the product for emissions; customers—the shell game—who have purchased the product (let’s assume the vendor was selling “competition only” items); etc., etc.

Based on a dialog of “How’s it going?” recall notices and/or civil penalties are evaluated. If the vendor abandons the process it can turn to criminal penalties. At this point the words “fraud,” embezzlement” and “tax evasion” come to mind.

What’s Next?

Based on my nine-topic outline, we’ve reached sub-title #9, “What’s Next?”

I guess this is a good place to summarize and predict.

The EPA is not looking for you.
The rules for you to get a license tag vary from state to state. California’s process is complicated. Other states could follow California’s lead.
The rules for vendors to submit for the CARB EO process are a moving target. The rules do show signs of stabilization.
If you want to improve the performance of your ’07.5 or newer Turbo Diesel there are fewer and fewer products available as the vendors feel the tightening of the emissions rules.
Competition Use Only: Did the vendor, “Know, or should have known, that the part could be used as an emissions defeat device on a licensed vehicle?” None of the parties involved in diesel performance are stupid.
Some vendors tried to play the shell game. It did not work.
The game influx really is not fair for the vendors and customers who want to play by the rules.
Someone will go to jail.
Now since we’re at the last topic “What’s Next?” I really don’t know. I’ll share industry news with you as I receive it.

Robert Patton
TDR Staff

Post Script: “Share with you industry news…” At the conclusion of this article we were fortunate to receive input from Gale Banks, Gale Banks Engineering about performance parts. Then, in mid-December, some friends at Cummins forwarded to me their “Policy on Tampered Emissions Control devices” that was dated in September 2012. Both items follow below.

AN INSIDER’S VIEW ON PERFORMANCE PARTS
AND EMISSIONS COMPLIANCE
An Interview with Gale Banks
By Scott Dalgleish

The subject of Environmental Protection Agency (EPA) and California Air Resources Board (CARB) compliance within the aftermarket and, in particular the diesel performance aftermarket, has moved to an elevated level recently. With manufacturers receiving “Cease and Desist” letters (see Editor’s column “Performance Parts Update 2013” this issue), it seemed like a good time to solicit the thoughts and insight from Gale Banks whose company has been in compliance with the agencies for the past 35 years. Gale was instrumental in the development of the structure for the process known as the Executive Order (EO) which allows aftermarket manufacturers an exemption from the effects of California vehicle code section 27156 which bans alterations to emissions related parts.

Now, let’s talk about this emissions thing. As best as Gale and I can, we’re going to give you the “long story—short version.” Gale remembers, “The whole thing began in the mid ’70’s when Pontiac sent me some preproduction Sunbirds and a little working capital. We were to develop a dealer installed, Banks Turbo option, for their four-cylinder Sunbird. The US was just coming off the 1973 Arab oil embargo and everyone was looking for performance with smaller, fuel efficient engines. Buick actually discontinued their V-8 and went V-6 only! As we finished the turbo Sunbird prototypes, it was discovered that California (CARB) would not allow Pontiac to do the dealer installations, due to the existing emissions laws. I could see that this was going to be a big problem.”

So in the late ’70’s, Gale and Rajay VP, Hugh Macinnes, spent approximately two years convincing CARB to develop an affordable aftermarket emissions certification process. The process would cover all parts to be sold which would have the potential of impacting the emissions of a given vehicle, gas or diesel.

Gale states, “By the time Hugh and I had it worked out with the State of California, Pontiac was gone! But by then I was working with Buick on their turbo effort, which is another story for another time. What we ended up with was a process which allows aftermarket manufacturers in California (and other states) to obtain a CARB Executive Order (EO) showing emissions compliance for each of their products. SEMA also got involved, and has carried the flag for all these years on our behalf.”

Later, in the ’70’s, Gale became involved with the development of the GM 6.2-liter, light truck diesel, building twin turbo marine prototypes for durability testing. Gale recalls that most diesels in the ’70’s smoked, but that no one gave it a second thought. But when he developed his Sidewinder Turbo system for the upcoming ’82 GM diesel pickups, he was able to add power and mileage, while cutting smoke.

Gale reflects, “As the years progressed, my thoughts on smoke have been, why on earth would anyone want to inject the fuel into the engine and then not burn all of it? I want to put fuel in the engine, make power, or use it to go further…I want mileage out of it. To me, smoke is power you can see, but not feel.
I think this whole idea of pouring out black smoke goes back to tractor pulling. The guys running the pre-electronic engines pour the fuel into it, making huge power and enough smoke to blot out the sun. So, I get it, diesel smoke became the symbol of power. Now, my combustion recipe is different; I get oxygen to all the injected fuel and make enough power to set national or world records and win national or world championships…no smoke.”

I, for one, can attest that Gale Banks has made this philosophy his signature in the performance arena. I will never forget watching the Banks Dakota set the current diesel pickup Land Speed World Record at Bonneville in 2002. (Update on page 13.) That truck left the line with a small puff of smoke and then proceeded to make the entire record run with no evidence of any smoke. Then it turned around and made the return run in the same glorious fashion. There was nothing visible outside of the red Dakota, white salt, and blue sky.

Banks is rightly proud of the fact that all his products, whether it’s a Ram Air, an intercooler, an exhaust brake or a tuner sold for power and mileage, currently have a California Executive Order. (The EPA accepts an EO as proof of compliance in other states as well.) Gale comments, “California unexpectedly dropped their established diesel EO test procedure in 2002 and they had no new test to replace it. They actually sent me a letter asking me to suggest a new test procedure so I quickly came up with a suggested replacement test and finally lobbied for it up in Sacramento in 2010. It was difficult and time consuming. The process involved Banks bringing in city mayors, state assemblymen, senators and lobbyists to a meeting set up by Banks in the State Capitol building–CARB, BAR and CAl EPA were all there and I was allowed to lead the majority of the meeting. At the end of the day the political pressure we brought to bear finally moved the bureaucrats to finish the job. All told, Banks and SEMA spent a total of eight years, but the state ultimately accepted protocols we had been suggesting to which they added a heavy dose of steady-state testing, to keep us on our toes.

Gale continues, “California only has two labs doing this type of steady state diesel emissions testing: one in Ontario and one here on the Banks property. The Ontario facility is usually booked with OEM testing, so it is a tremendous advantage for us to have our own facility. CARB routinely comes by to witness our testing and has given us favorable comments each time. I am very proud of our relationship with CARB and proud of our ability to perform even the most difficult sustained testing that is required. Testing is becoming a growing part of our business. Currently we have the equipment to do another four emissions dynos and we own seven emissions benches. I have been planning to open our testing facility to others in the industry. I would like to see our whole industry come to the party. I feel that if you don’t step up now, you are not going to be around long in this industry. CARB and EPA are not fooling around. The penalties and criminal charges for manufacturing, distributing, selling, installing and owning this contraband are going to be a painful reality for all involved. EPA is already nailing the DPF delete guys. Word on the street is that the fines are in the millions.”

There are several opinions regarding the long arm of the law and how far they will go and just whom they will go after. One of the popular opinions is that the EPA and CARB will seek out the big manufacturers and WDs. Gale has another opinion.

Gale continues, “When you realize that these agencies are significantly funded from the fines they collect, it becomes self-fulfilling for the agencies to go after all they can. When they subpoena the records from the manufacturers, WDs and retailers, they will have the records of who bought the products. Don’t kid yourself into believing the product sold, was sold to you under the guise of ‘for racing use only or for off-road use only’, they (EPA and CARB) are not buying that any longer. For your sake I hope you saved those DPFs and EGRs. In many states you’ll need them to get your truck registered and they are very expensive. Remember the EPA is federal; your lack of a local smog check will not shield you from those cats if they decide to come.

Dodge Ram 1500 undergoing emissions testing.

Banks' emission
testing equipment

A portion of Banks’ in-house emission testing equipment.

“I believe in clean tune performance, smoke is just engine inefficiency. I want an engine that burns all of the fuel I put into it. Clean tune was around long before DPFs and EGRs. I believe clean tune means not making smoke and not taking filters out. I can make incredible power, through a clean filter, using the clean tune strategy and leave the filter in place. It is my belief that in this day of emission regulations, it is in my best interest and the best interest of my customers to sell clean, legal products.”

Gale concluded with this, “My racers don’t have license plates, they really are competition vehicles. Be forewarned, the EPA and CARB agencies are no longer accepting the ‘racing only or off road’ story, on street licensed vehicles. So the challenge is how much power can we make and keep it emissions legal…the answer will probably surprise you. You can make big, legal power! Just don’t plug up the DPF with a dirty tune.”

Scott Dalgleish
TDR Writer

THE CUMMINS CORPORATE MEMO

The Cummins memo discusses the corporation’s core values as well as applicable law. The purpose of the Cummins corporate memo: “This document is intended to emphasize Cummins longstanding opposition to any form of tampering on the emissions control devices of our products. Additionally, it describes the actions Cummins distributors must take if they discover evidence of tampering of emissions control devices.”

The policy to be enforced by Cummins and all of its dealer network: “Cummins has and will continue to follow all EPA and CARB regulation on tampering.
“Cummins dedicates significant resources to comply with emissions regulations including making our products tamper resistant. Cummins does not condone tampering of our products in any capacity at any time during the product’s life. Tampering with emissions control devices violates the Cummins Code of Business Conduct and is inconsistent with our warranty policies.

“It is illegal under the Clean Air Act and the California Vehicle Code for Cummins distributors to service a tampered emissions control device without returning it to its certified configuration.

“If a Cummins Distributor discovers through the normal course of maintenance or repair that an emissions control device has been defeated, the customer must be notified and advised to correct the condition.”