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10 September 2018
The Department of Justice (DOJ) and the Environmental Protection Agency's (EPA's) criminal office recently 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. The 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, the EPA relied on an aggressive legal interpretation of Section 113(c)(2)(C) of the Clean Air Act. This section 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)). 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 act's structure, the EPA has historically relied on Section 113(c)(2)(C) to prosecute owners of stationary sources that manipulate stack tests by:
It is also well known that US Representative John Dingell has 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.
The EPA's new interpretation breaks from this history and expands criminal enforcement to mobile sources regulated under Title II of the act (eg, cars and trucks). Historically, the EPA has pursued these types of tampering or OBD cases within the administrative or civil judicial process. This announcement highlights the shift within the 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.
The EPA and DOJ are expected to continue to shift toward mobile source enforcement, particularly regarding OBDs, as exemplified in the Rockwater matter.
For further information on this topic please contact Richard Alonso or Justin Savage at Sidley Austin LLP by telephone (+1 202 736 8000) or email (firstname.lastname@example.org or email@example.com). The Sidley Austin LLP website can be accessed at www.sidley.com.
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