Climate change and global warming; carbon footprints, clean energy and low emissions. This is the language of the modern era. Whilst there are various schools of thought on the causes, impact and potential solutions to climate change (or, in the case of the 45th president of the United States of America, whether or not the whole concept is a hoax) what is clear is that no matter which side of the fence one stands on, the world is on a mission to clean up.
Commercial vehicle operators will have been aware for many years of the pressure the industry is under to lead the way when it comes to pollution and emissions standards. The first EU directive on those standards was passed in 1970 whilst the first in the numerical "Euro" engine design series was implemented in 1993. We are now up to the Euro VI standard for new commercial vehicles and believe it or not, this year the London low emission zone (LEZ) will have been operating for a decade (with Ultra-LEZ due to come in by 2020). Emissions are a big deal - and so is cheating them.
AdBlue
By now, most operators will be familiar with AdBlue; a compound made up of a mix of urea and deionised water which is injected into a vehicle's selective catalytic reduction system to reduce harmful nitrogen oxide (NOx) levels, instead converting exhaust emissions into a far less harmful mix of nitrogen and water vapour.
For commercial operators, emissions outputs are critical: the emissions standard of a vehicle is measured by reference to its output of a number of pollutants, with NOx being a crucial component.
As well as the obvious environmental advantages to running vehicles to cleaner emissions standards (to say nothing of the legal requirement for newly manufactured vehicles), there are commercial advantages for operators, too: cheaper vehicle excise duty, increased fuel efficiency and avoiding the LEZ charge (£200.00 per day for buses or coaches with more than eight passenger seats and with a gross vehicle weight greater than 5 tonnes if the Euro IV standard is not met where the scheme applies; £100.00 for smaller and lighter minibuses) are all cost savings which can be made by running vehicles to a higher "Euro" standard.
Cheating the System
Perhaps it is inevitable that no sooner is there a technological development prompting a higher compliance standard, than someone somewhere spots a market for creating and selling a means of manipulating or short-cutting it.
As the recent Volkswagen scandal shows, emissions outputs are no exception; the VW case has made it clear that it is possible with the right technology to manipulate pollutant output data in order to gain a commercial advantage.
Suppliers to the commercial vehicle industry appear to have found their own ways to cheat the system - in fact, there are a number of ways in which emissions outputs can be manipulated or that corners can be cut with much the same effect, so that operators (whether knowingly or otherwise) end up using vehicles whose emissions are higher than they are claimed to be, thus deriving an unfair commercial advantage, to say nothing of the increased environmental damage.
For those unscrupulous enough to take the risks involved, it is possible - and unlawful - for operators to obtain and install what are sometimes described as "AdBlue emulators" - devices which "trick" a vehicle's electrical unit into believing that an engine system has been injected with the correct amount of AdBlue when in fact it has not. Worse, it has been proven that NOx emissions are actually increased by the use of these devices - so not only are such operators saving money by not paying for AdBlue, they are actively releasing more harmful pollutants in the process.
The use of inferior products apparently designed to reduce emissions - even by those who are genuinely well-intentioned - can itself land operators in hot water. Cheap equivalent diesel supplements purporting to do the same job as AdBlue are unlikely to work in the same way, and there are what has been described by the DVSA as "cheap, fake emission control devices" available on the market. The use of either may leave operators innocently believing that their vehicles are meeting emissions compliance standards when in fact they are not.
The Enforcement Fightback
In July 2017, the DVSA announced that the following month, it would begin adding checks for emissions cheating devices or modifications as part of roadside enforcement stops. Initially the DVSA appeared to focus primarily on heavy goods vehicles but there is no reason to believe that PSV's will not be checked for compliance or that PSV AdBlue cheats will be in a different position to those on the HGV side. The fact is that although emissions-compliant vehicles ultimately save costs, to get them there requires additional expenditure: AdBlue is an expense some operators may feel they could do without.
It is a criminal offence to use a vehicle which has been modified so that it does not meet its intended design emissions standard. Accordingly, the DVSA is empowered to issue roadworthiness prohibitions with a 10-day requirement for any non-compliant vehicle to be returned to its original emissions condition - a failure to comply runs the risk of attracting fines for both operator and driver, to say nothing of the risk of referral to the Traffic Commissioner and a likely Public Inquiry.
Predictably, it has taken a little time for cases to find their way into court, but 2018 has seen a steady increase in the number of Public Inquiries before Traffic Commissioners in cases involving emissions cheating and failures to use AdBlue where required. Earlier this year, Western Traffic Area Traffic Commissioner, Kevin Rooney was quoted as comparing the use of AdBlue emulator devices to the use of magnets to manipulate tachographs - a comment echoed more recently by Simon Evans in the North-West. So seriously are the Traffic Commissioners taking cases that involve AdBlue cheats that they are resulting in revocations and disqualifications. This should not come as any surprise, since dishonest behaviour designed to secure an unfair commercial advantage strikes at the heart of a regime so reliant upon trust.
Operators should also expect Traffic Commissioners to be sceptical of claims that no-one in the operation knew what was happening 'under their noses'.
Advice for Operators
Honest diligent operators have nothing to fear from all of this, save that the increasingly onerous emissions standards come at a cost, and in an increasingly global economy it is a moot point as to whether or not the UK's efforts to reduce emissions will make any meaningful difference to global warming.
Three Steps for Operators to Take
- Know what each vehicle's emissions compliance standard should be - if there is any doubt, check with the vehicle's manufacturer and make sure that there is a record on file.
- Keep an eye on the AdBlue gauge - AdBlue will likely need regular topping up - if the needle has not moved for weeks then treat this as a 'red flag'.
- Do not be tempted to use cheaper, inferior products which do not reduce emissions in the way that they claim to (and if you are going to purchase alternatives make sure that everything is carefully documented, including keeping the warranties of 'product excellence' that will likely accompany these items.
Copyright: Richard P. Pelly, Pellys Transport & Regulatory Law. April 2018. First appeared in I-Croner.
