Our Take: COBB Tuning Targeted by EPA

Our Take: COBB Tuning Targeted by EPA

COBB Tuning has entered into ‘Consent Decree’ with the U.S. Environmental Protection Agency over alleged Clean Air Act violations prior 2017. COBB released its statement Tuesday on the heels of the DoJ’s and EPA’s announcement on Monday. But what does that even mean? First, a little history. 

The Clean Air Act

The Clean Air Act is a federal law that regulates air emissions from stationary and mobile sources. Started in 1970, the Clean Air Act was an evolution of the failed Air Quality Act of 1967. Even the 1970 CAA was considered a failure; standards were not met and deadlines extended so a pivot was in order. They changed the lens to “awareness of environmental issues” and added Amendments in 1990. “Enforcement” has increased and fines followed.

 

COBB Tuning History

 Founded in 1999, Trey COBB wanted to produce high performance components for Subaru vehicles. With the introduction of the WRX to American shores in 2001, COBB had already a few years of business under its belt and put themselves in a good long-term position to service the Subaru performance crowd.

In 2004, COBB released its famous Accessport. A handheld ECU programmer for Subaru vehicles. It was met with much success and ushered in a new era for the company and unprecedented access for enthusiasts.

Alleged CAA Violations

The EPA released a press release and “fact sheet” on COBB’s alleged indiscretions here. Its claimed 81,000 Accessports, and 8,400 exhaust replacement pipes, or as they classify them, “defeat devices” (to mitigate emissions) have been sold since 2015. 

In its official statement COBB provided documentation to the EPA verifying that it [had] successfully secured California Air Resources Board (CARB) Executive Orders (EO’S) or third-party emissions certifications demonstration that its entire product line, including all of the products included in the EPA Complaint, are compliant with emissions standards/regulations and Clean Air Act. You can read the full COBB statement here.

Jeff King, COBB President and CEO stated, “We are proud of the leadership position that COBB Tuning has established providing emissions certified performance packages to the automotive enthusiast. We proactively started our Green Speed initiative with the goal of developing market leading, fully emissions certified performance solutions for our enthusiasts’ customers and their vehicles long before EPA contacted us about their concerns regarding how certain COBB products could be used – in an unintended manner –to sidestep vehicle emissions requirements. We have proactively worked with EPA to address these concerns and view this settlement as a next step in our Green Speed initiative.”

‘Consent Decree’

COBB has agreed to a $2,914,000 civil penalty in order to close this chapter and move on. How and why the amount was determined was not disclosed. It would seem arbitrary as the EPA even took a poke at COBB stating: “due to its financial inability to pay a higher penalty”.  The EPA has attached stipulations and conditions to “avoid future violations” for the Texas-based tuner.

King concludes by saying “As a company, we take our emissions stewardship seriously, and proactively addressed in real time each area of concern that the EPA identified with how some of our legacy products could be used in an unintended manner. We had to make difficult choices along the way regarding how and when to make changes to or discontinue certain products that the EPA identified as concerning. We always focused our decision-making process on implementing changes in a way that had the best interests of our enthusiast customers, distribution partners, and the environment in mind. Sometimes those were tough choices, which required immediate action in order to address EPA concerns. I am pleased to report that those product changes are behind us, and both our customers and distribution partners can be confident purchasing COBB products. Our entire product line is fully emissions compliant. Our Power Packages and calibrations/tunes deliver exciting performance and drivability enhancements for our customers’ vehicles. To date, we have received over 200 CARB EOs as well as multiple other third-party emissions certifications that cover our entire product range.”

Consent Degree doesn’t admit any wrongdoing, and according to COBB, it would appear they were helpful in the investigation and were not taking responsibility for actions outside of their control. Despite that, the EPA has levied many stipulations for COBB below.

The consent decree contains the following compliance requirements: 

• COBB Tuning is prohibited from manufacturing, selling, offering to sell, or installing any aftermarket defeat devices.
• COBB Tuning is allowed to continue to manufacture and sell products, including its tuners, that are covered by an Executive Order from the California Air Resources Board demonstrating that the products do not increase emissions above allowable levels.
• In addition, COBB Tuning is required to: 
• Remove any delete features from its custom tuning software and, to the extent possible, force updates to end-users to remove the delete features;
• Destroy any defeat devices remaining in its possession;
• Cease providing technical support for any defeat device products;
• Deny all warranty claims for any defeat device products;
• Instruct authorized dealers to no longer provide technical support or honor warranty claims pertaining to any defeat device products;
• Revise all marketing materials to strike any information relating to replacing, defeating, bypassing, or rendering inoperative any emission control;
• Not sell or transfer any intellectual property associated with any defeat device products;
• Revise all marketing materials to strike any information relating to replacing, defeating, bypassing, or rendering inoperative any emission control;
• Notify authorized dealers and known customers of any defeat device products of the settlement using specified language that informs the authorized dealers and known customers that the products at issue violate the Clean Air Act;
• Notify COBB Tuning’s officers and employees of the Clean Air Act prohibitions using specified language which explains the Clean Air Act’s defeat device prohibition;
• Request that COBB Tuning’s employees forfeit any aftermarket defeat devices in their possession and require that its officers forfeit, permanently delete and uninstall, and destroy any aftermarket defeat devices in their possession;
• Require COBB Tuning to offer to buy back any defeat devices possessed by COBB Tuning’s employees, which COBB Tuning must then destroy;
• Conduct a Clean Air Act compliance training for COBB Tuning’s officers, employees, contractors, and consultants.

Conclusion

While the announcements are fresh, in so many ways the dust has already settled. COBB will still have the four payments to make over three years (with interest) according to the EPA, but with it already having compliant products COBB can continue to sell products and services.

In good news for enthusiasts but unfortunate timing for COBB, the Supreme Court of the United States overturned the Chevron decision in June of 2024. This was a case that allowed federal agencies (like the EPA) more power. Here is an excerpt from a write-up on ScotusBlog.comfor more context. 

“Roman Martinez, who argued the case on behalf of one of the fishing companies, applauded the decision. “By ending Chevron deference,” he said in a statement, “the Court has taken a major step to preserve the separation of powers and shut down unlawful agency overreach. Going forward, judges will be charged with interpreting the law faithfully, impartially, and independently, without deference to the government. This is a win for individual liberty and the Constitution,”.

Would this have saved COBB nearly $3 million? Perhaps, but moving forward, as COBB plans to do, they will remain compliant as they stated they always have been and continue to sell and service performance enthusiasts.