Carper, Udall Ask EPA OIG To Broaden Investigation Into Legally Questionable Loophole For High-Polluting Glider Trucks

Senators ask for information on industry-funded science used to justify proposal 

WASHINGTON, D.C. – Today, Senator Tom Carper (D-Del.), top Democrat on the Environment and Public Works Committee (EPW) and Senator Tom Udall (D-N.M.), ranking member on the Senate Appropriations Subcommittee on the Interior, Environment, and Related Agencies asked the Environmental Protection Agency’s Office of Inspector General (EPA OIG) to broaden the scope of the ongoing audit into glider vehicle testing conducted by EPA in 2017.

Specifically, Senators Carper and Udall have asked EPA OIG to broaden the current audit to include investigations into the discredited, industry-funded study former EPA Administrator Pruitt used to support his decision to deregulate glider vehicles; the apparent decision to rush signature and publication of the likely illegal proposal without EPA having reviewed likely health effects associated with deregulating the rule; last minute changes to the proposed rule purposefully designed to avoid legally required health and economic analyses; and the promise Mr. Pruitt made on his last day to the glider industry that it would not be required to comply with current glider rules.

“We are deeply troubled that EPA’s legally questionable proposal — developed under highly irregular circumstances — would exempt manufacturers of the dirtiest trucks on the road from the Clean Air Act’s public health protections,” the senators wrote to Acting Inspector General Charles Sheehan.

A copy of the letter can be found HERE, and the full text of the letter is below:

October 31, 2018

The Honorable Charles J. Sheehan

Acting Inspector General

U.S. Environmental Protection Agency

1301 Constitution Ave. NW, Room 3102

Washington, DC 20460

Dear Acting Inspector General Sheehan:

We ask that you broaden the scope of your ongoing audit[1] into glider vehicle testing conducted by the Environmental Protection Agency (EPA) in 2017 to include:

1. Former EPA Administrator Scott Pruitt’s public announcement that he had decided to deregulate glider vehicles in part based on a discredited, industry-funded study;
2. The apparent decision to rush signature and publication on the proposed rule without waiting for EPA technical staff to review the likely health effects;
3. Last-minute changes to the proposed rule purposefully designed to avoid legally required economic and health analyses; and
4. An unprecedented promise from EPA on Mr. Pruitt’s last day in office that the glider industry would not be required to comply with the rules that are on the books. 

We are deeply troubled that EPA’s legally questionable proposal — developed under highly irregular circumstances — would exempt manufacturers of the dirtiest trucks on the road from the Clean Air Act’s public health protections.

Glider trucks, also known as “zombie trucks,”[2] look like new trucks on the outside—and are advertised and sold as new—but are equipped with old, high-polluting diesel engines on the inside.  Glider trucks used to be a niche industry, with less than a thousand vehicles produced each year—primarily for engine-salvage purposes when relatively new trucks got in collisions.  By 2015, however, “significantly over 10,000” glider vehicles were being sold, and almost every engine used to complete a glider truck is a rebuilt diesel engine originally manufactured between 1998 and 2002.[3] 

EPA soon realized that, if left unregulated, by 2025 glider vehicles would create one-third of all NO_x and PM emissions from heavy-duty trucks, even though they would only comprise 5% of the heavy-duty tractor fleet.  In its 2016 “Phase 2” medium and heavy-duty rule, after taking two rounds of public comment on whether and how to address glider vehicles, EPA finalized regulations that ensured the emissions from glider trucks would be reduced while minimizing disruption to the few companies that manufacture glider kits and vehicles.[4]

A few months after Scott Pruitt became EPA Administrator, he personally met with representatives of Fitzgerald Glider Kits, LLC (Fitzgerald),[5] the self-proclaimed, “largest glider kit dealer in the country”[6] and a political supporter of President Trump.[7]  Shortly thereafter, Fitzgerald sent Mr. Pruitt a petition seeking reconsideration of the glider requirements,[8] and Mr. Pruitt also spoke with Congresswoman Diane Black, who has vocally supported the Fitzgerald Petition.[9]  Among the materials presented to Mr. Pruitt were a “recent study by Tennessee Technological University,” purporting to show that EPA based its conclusions about glider vehicle emissions on “unsupported assumptions,” because glider vehicles actually performed as well or better from an emissions perspective than trucks with newer engines. [10] 

Mr. Pruitt responded to Fitzgerald and two other glider manufacturers, saying that those claims of “unsupported assumptions” had raised “significant questions” about “the soundness of the EPA’s technical analysis” regarding glider emissions, and that “in light of these [technical and legal] issues” EPA had “decided to revisit” the glider rules.[11] 

On November 9, 2017, Mr. Pruitt signed a proposal to repeal emission standards for glider vehicles, glider engines, and glider kits, which was published on November 16.[12]  On its face, that proposal was based on reinterpretations of definitional language in the Clean Air Act (CAA).  Strangely, however, the proposal acknowledged that these reinterpretations were contrary to the CAA’s plain language,[13] and did not cite any legislative history or judicial precedent interpreting CAA definitions. 

Instead, the basis of the reinterpretation was the Automobile Information Disclosure Act of 1958—a sixty-year-old law regulating the placement of stickers on automobile windows—which does not apply to EPA, air pollution, or even heavy-duty trucks.[14] 

Since the proposal was published on November 16, 2017, additional information has surfaced regarding legal, procedural, and technical irregularities surrounding the proposal and EPA’s interactions with the glider industry.  Mr. Pruitt’s decision on his last day as EPA Administrator

to issue an unprecedented “No Action Assurance” to the glider industry that essentially exempted the industry from the as-yet-unrevised emissions rules further suggests improper influence.  Additionally, Assistant Administrator Wehrum has met with Fitzgerald’s representatives two weeks before Scott Pruitt resigned (June 22, 2018), and again just last month (Sept. 7, 2018) — all while EPA is considering Fitzgerald’s requested rule.[15]  The purpose of those meetings is not known.

What follows is a summary of the procedural and substantive matters we request you examine:

1.  Last Minute Rule Rewrites to Avoid Analyzing Impacts on Economy and Children’s Health

According to interagency review documents uploaded to the rulemaking docket, EPA’s proposal to repeal air emission requirements for glider vehicles was considered an “economically significant rule” under Executive Order 12866 because it would have an annual effect on the economy, environment, or public health and safety of at least $100 million.  That makes sense because, in 2016, EPA estimated that unrestricted glider vehicles impose $6 to $14 billion in annual costs on society—60 to 140 times the amount necessary to trigger the required economic analysis under E.O. 12866.[16]  Interagency commenters then noted that EPA’s draft proposal did not conduct the requisite economic analysis for economically significant rules.  Instead of going back and conducting that analysis, on the afternoon the day before Scott Pruitt signed the proposal, staff inserted the word “not” before “economically significant,”[17] thereby avoiding compliance with E.O. 12866.[18]  EPA gave no explanation for this about-face, but the last-minute nature of the change suggests that it was not the product of any actual economic analysis.

The same $100 million trigger applies to E.O. 13045, “Protection of Children from Environmental Health and Risks,” which requires EPA to evaluate the environmental health risks of rules that could disproportionately impact children, and explain why the regulation is “preferable to other potentially effective and reasonably feasible alternatives.” Accordingly, this last-minute change also allowed EPA to gloss over the proposal’s public health impact on children.[19]  The existing Phase 2 rules had discussed at length how children’s physiology, breathing rates, brain and body development, and behavior increase their susceptibility to vehicle air pollution compared to adults.[20]  By contrast, the proposed glider emissions rollback rule merely asserts, without any further analysis or apparent concern, that “Some of the benefits for children’s health as described in the [Phase 2 Rule] would be lost as a result of this action.”  Senator Carper asked the White House Office of Management and Budget (OMB) about these and other skipped analyses,[21]  but has not received a satisfactory response.  Press reports also indicate that EPA actually attempted to finalize the proposal, but that OMB rejected it for having failed to include the required Regulatory Impact Analysis.[22]

1. Problems with the Industry-Funded Glider Study

Shortly after EPA publicly proposed to repeal air emission requirements for glider vehicles, a November 2017 report conducted by EPA’s technical staff found that these vehicles were not even close to being cleaner than modern trucks was placed into the rulemaking docket.[23] This report concluded that glider trucks with Fitzgerald-rebuilt engines emitted up to 450 times the PM pollution and 43 times the NO_x pollution of modern trucks.[24]  The proposed rule itself makes no mention of the EPA study. 

Subsequently, the interim dean of the College of Engineering at Tennessee Tech lambasted his own university’s study as “farfetched” and “scientifically implausible.”[25] Tennessee Tech faculty called for an investigation into research misconduct,[26] and it came to light that the study was not subject to peer review, and was paid for by Fitzgerald Glider Kits.[27]  Tennessee Tech has suspended its relationship with Fitzgerald, and asked Mr. Pruitt not to “use or reference” the study pending the outcome of an official research misconduct investigation.[28]  There were ample reasons to suspect research misconduct:  The study was advertised as a product of Tennessee Tech’s “Department of Civil and Environmental Engineering,”[29] despite the fact that it was apparently not overseen, written, reviewed, or verified by any “qualified, credentialed engineering faculty member.”[30]  And although the university president’s letter said that all glider trucks “met the standard” for particulate matter,[31] study participants spoke by phone with EPA technical staff on November 7, 2017 and admitted they had taken no numerical measurements of PM emissions—in fact, they had not collected PM samples at all.[32] Just last week, Tennessee Tech formally informed EPA that the study’s conclusions “were not accurate.”[33]

1. Inexplicable Industry Favors on Pruitt’s Last Day in Office

On July 5, 2018, in the midst of a cloud of ethics scandals,[34] Scott Pruitt announced that he would be resigning as EPA Administrator.  On the very next day, in Mr. Pruitt’s last act as Administrator, the agency issued an extraordinary and unprecedented “No Action Assurance” letter, purporting to assure Fitzgerald and the few other glider manufacturers that, as a matter of “enforcement discretion,” EPA would not enforce the law against glider manufacturers through 2019.  EPA has a Reagan-era policy against such assurances because they “may erode the [EPA’s] credibility” and “hamper later enforcement efforts.”[35] Such actions are thus reserved for “extremely unusual cases,” such as where necessary to avoid extreme risks to public safety.[36]  Historically, EPA appears to have overwhelmingly used these assurances for emergency situations, like for power plants struggling to provide electricity to hurricane-stricken communities.[37] 

The stated emergency in this last-day letter, however, was that the glider industry had been preparing to violate the law in reliance on a proposed rule that had not yet been finalized.[38]  The entire purpose of notice-and-comment rulemaking is that the agency will approach the issue with an open mind and listen to feedback from all sides, and as such, EPA’s reference to any reliance by the glider industry on an as-yet-un-finalized rule seemed ill-advised.  Unsurprisingly, the D.C. Circuit quickly granted an emergency motion from states and environmental groups to stay the No Action Assurance letter.[39]  Rather than defend the letter in court, Acting Administrator Wheeler withdrew it.[40]  However, the proposed rule to repeal the emissions requirements remains pending.

In light of these procedural and other deficiencies, we ask that you expand your inquiry to include the following points: 

1. The circumstances surrounding how the industry-funded “study” that is now the subject of an academic misconduct investigation was presented to Scott Pruitt.

1. Scott Pruitt’s reliance on that study as a basis for announcing on August 17, 2017 that “EPA has decided to revisit” the glider rules, including any efforts made by EPA to verify the results of the study prior to the decision to revisit the rules.

1. The decision in the proposed repeal to ignore its economic impacts and impacts on children’s health, including by downgrading the proposal’s economic significance less than 24 hours before signature.

1. The proposed rule’s failure to conduct and docket economic assessments required by Clean Air Act section 317.  That section provides that, before publishing a proposed rule revising “any regulation establishing emission standards under section [201 of the Clean Air Act] and any other regulation promulgated under that section,”[41] the Administrator “shall prepare an economic impact assessment respecting such standard or regulation . . . .”[42]  Not only must that economic impact assessment be placed in the rulemaking docket, but the “[n]otice of proposed rulemaking” itself must “include notice of [the] availability” of that assessment and “an explanation of the extent and manner in which the Administrator has considered the analysis contained in such an economic impact assessment in proposing the action.”[43] 

1. The circumstances surrounding the development of the unprecedented No Action Assurance letter—issued in Mr. Pruitt’s final hours as Administrator:

We have additionally attached previous correspondence we have sent to EPA and OMB on this topic, as well as numerous publicly available documents obtained via state and federal public records laws that provide limited insight into the process. Thank you for considering our request for a thorough review of these issues.  Should you have any questions about this request, please contact Michal Freedhoff (michal_freedhoff@epw.senate.gov) or Jonathan Black (jonathan_black@tomudall.senate.gov).

Sincerely,