On Wednesday the Environmental Protection Commission of Hillsborough County (EPC) unanimously approved the initiation of legal proceedings against German automaker Volkswagen for violating EPC rules prohibiting the manufacture, installation, sale or advertisement for sale of vehicles with defective emission control systems. VW has admitted to designing, manufacturing and installing “defeat devices” which work to fool emission testing protocols, making it appear to regulators that certain diesel powered Volkswagens meet emissions standards when in fact they do not.
The vehicles at issue also include diesel models manufactured by Volkswagen subsidiaries Audi and Porsche. Well over 1,000 of the following defective vehicles are believed to be operating in Hillsborough County (list not necessarily exhaustive):
Volkswagen Beetle, Beetle Convertible, Golf, Golf SportWagen, Jetta, Jetta SportWagen, Passat, Touareg
Audi A3, A6 Quattro, A7 Quattro, A8, A8L, Q5
These VW, Audi and Porsche diesel vehicles emit up to 40 times the permitted levels of nitrogen oxide (NOx) when operating in real world conditions, outside of the testing environment. Volkswagen programmed the vehicles to reduce emissions when operating on a stationary dynamometer. The vehicle’s software could detect that the car was running on a dynamometer, and as such, performance was automatically dialed back by the car’s computer, allowing it to meet emissions standards. Once the car was back on the open road, the vehicle’s computer switched to its higher performance, higher polluting – and thus illegal – mode.
The deception reached the highest levels of the world’s largest automaker, Volkswagen, AG. Volkswagen’s CEO Martin Winterkorn, who was forced to resign after the scandal was revealed, said: “I personally am deeply sorry that we have broken the trust of our customers and the public.” Volkswagen Group of America CEO Michael Horn said, “Our company was dishonest with the EPA … and with all of you.” The German newspaper Der Spiegel has reported that at least 30 management level people in VW knew about the deceit for years, although the company continues to deny that accusation.
Hillsborough County – A legacy of protecting the environment
Many newcomers to our area may not realize that the region was once one of the most polluted in the state. Raw sewage was dumped directly into Tampa Bay for decades, and Hillsborough County was one of a handful of EPA “non-attainment” areas for many years, meaning we failed to meet even minimum standards for air quality.
Through the leadership of former Speaker of the Florida House of Representatives, Terrell Sessums, the Hillsborough County Environmental Protection Commission was born in 1967 to address these and other environmental concerns.
Upon the enactment of the Clean Air Act Amendments of 1990, Congress established a link between transportation funding and an area’s ozone status. In response to this federal action, the Hillsborough County EPC, in conjunction with the State Department of Environmental Protection, implemented a plan to reduce transportation’s impact on the Tampa Bay area’s air quality.
Initial provisions of this plan subjected residents of Hillsborough County to mandatory vehicle emissions testing. This testing regime revealed that a significant number of vehicles in Hillsborough County had been modified so that they did not meet emission standards. In fact, it is said that at one time Hillsborough County had the highest incidence of emissions control systems tampering in the nation.
To combat this problem, the following regulations were implemented.
Rules of the Hillsborough County Environmental Protection Commission
According to the Rules of the Environmental Protection Commission of Hillsborough County, 1-8.05:
“No person shall manufacture, install, sell or advertise for sale, devices to defeat or render inoperable any component of a motor vehicle’s emission control system.”
As described above, this is exactly what Volkswagen has admitted to doing – “manufacturing devices to defeat a motor vehicle’s emission control system.”
The Enabling Act whereby the Florida Legislature established the Hillsborough County EPC and delegated the authority to promulgate such rules as the above reads in Section 17(2):
“Violation is punishable by a civil penalty of not more than $5,000 for the first offense and of not more than $5,000 for each offense thereafter. Each day during any portion of which such violation occurs constitutes a separate offense.”
Section 18 of the Enabling Act states:
“The commission may institute a civil action in a court of competent jurisdiction to impose and to recover a civil penalty for each violation in an amount of not more than $5,000 per offense …. Each day during any portion of which such violation occurs constitutes a separate offense.”
Volkswagen, by its own admission, has intentionally violated these rules on a massive scale, unlike anything ever seen prior. As such, the Hillsborough County Environmental Protection Commission, as well as the citizens of this county, expect full remuneration from VW, consistent with these rules.
The Hillsborough County Environmental Protection Commission is represented by a three firm legal team lead by Dee Miles with Beasley Allen Crow Methvin Portis & Miles PC of Montgomery, Alabama, Tom Young with The Law Office of Thomas L. Young, P.A. in Tampa, and Steve and Truett Gardner with the Tampa firm of Gardner Brewer Martinez-Monfort.
Miles serves as a member of the In re: Volkswagen “Clean Diesel” MDL 2672 Plaintiff’s Steering Committee (PSC) appointed by Judge Charles Breyer in San Francisco. MDL 2672 is the “multi-district litigation” consolidation of nearly 500 lawsuits related to Volkswagen’s deceit. The twenty-two member PSC has been called a “Dream Team” of attorneys.
Young’s practice focuses exclusively on representing businesses and local governments harmed by violations of environmental laws and regulations. He is one of the most active attorneys in the ongoing BP Deepwater Horizon litigation where he was successful in recovering tens of millions of dollars for several Florida counties and municipalities, as well as representing local Chambers of Commerce against BP in the Supreme Court of the United States. Young also represented over 220,000 individuals and businesses where he recovered $337 million in the Halliburton and Transocean settlement allocation proceeding associated with the Deepwater Horizon Disaster. He currently represents businesses affected by the Porter Ranch gas leak in Los Angeles.
Gardner Brewer is a Tampa law firm with a focus in business law, commercial litigation and land use. The firm is annually recognized as being among Florida’s Legal Elite Lawyers, Super Lawyers and Tampa’s Top Rated Lawyers.
Beasley Allen, The Law Office of Thomas L. Young, and Gardner Brewer Martinez-Monfort are ably assisted in this case by Environmental Protection Commission of Hillsborough County General Counsel Rick Tschantz and Hillsborough County Attorney Chip Fletcher.