Emissions tests on autos investigated

Allegations cited of manipulation by state officials

By Stephanie Ebbert, Globe Staff, 9/6/2003

The US attorney's office has launched a criminal grand jury probe into allegations that state officials manipulated data and misled federal regulators about the accuracy of the auto emissions test they began requiring of motorists four years ago.

A copy of a federal subpoena, issued last month and obtained by the Globe, shows prosecutors have sought thousands of documents, including correspondence between program staff and the governor's office and the Executive Office of Environmental Affairs. The subpoena demands that the state Department of Environmental Protection, which runs the program in cooperation with the Registry of Motor Vehicles, deliver the documents by Tuesday or that DEP Commissioner Robert W. Golledge Jr. appear that morning in court. Golledge said the department plans to turn over the first set of documents Monday and will continue to do so on a schedule being arranged with investigators.

An official involved in the federal probe said investigators are pursuing the theory that state officials misrepresented the effectiveness of the emissions testing program, in part, to protect Big Dig construction funds, which are contingent upon the state's efforts at controlling pollution from cars and other sources. Investigators are probing whether decisions about the emissions program were motivated by political concerns, such as retaining those federal funds and limiting inconveniences to motorists who would have chafed at a more time-consuming, but more accurate test.

The Globe reported in July that DEP officials had known for two years that the $29 tailpipe test they launched in 1999 did not work accurately. Initially, the test erroneously failed cars that should have passed. DEP officials acknowledged that they then altered the test software in an effort to reduce false failures in summer 2001, but since that time the test has passed some polluting cars that deserved to fail.

Critics say that the program remains problematic and that although officials have been trying to tweak the software so that the data meet the EPA's expectations, the results are still not accurate for cars whose emissions are near the legal limit. State Inspector General Gregory W. Sullivan, who conducted his own investigation, said in a July report that a single car, tested six times, produced widely disparate emissions results.

"The science from the very beginning was totally irrelevant," charged Stan Morin, the president of the Alliance for Automotive Service Providers in Massachusetts and Rhode Island. "This test just did not work from the very get-go, and they knew it."

Samantha Martin, a spokeswoman for US Attorney Michael J. Sullivan, said she could neither confirm nor deny the existence of an investigation.

The probe is being conducted through the inspectors general for the federal Environmental Protection Agency and Department of Transportation, the agencies to which the state must demonstrate that it is making strides to improve air quality. Spokesmen for both offices declined comment.

Massachusetts remains a "serious nonattainment area" for air quality, meaning the state exceeds the federal standards for ground-level ozone -- a sun-baked combination of pollutants that can make breathing difficult. States such as Massachusetts with ongoing pollution problems are required to create plans for improving air quality, in part through programs like the auto emissions test, designed to detect polluting vehicles and require repairs before they return to the road. If the state did not achieve reductions in air pollution through the emissions program, the EPA could have sought cuts from other sources, Golledge acknowledged. Big Dig funding was never reduced due to air quality concerns.

Massachusetts was slow to adopt the emissions testing program, launching it in 1999 when the federal government threatened to withhold Big Dig funds. Rather than adopting the EPA's technology, a test that takes 4 minutes to administer at state-run testing centers, Massachusetts opted for a privatized system that takes 1 1/2 to 3 minutes in auto shops around the state. However, the state had to show that its customized program conformed with the federal test and produced comparable results.

DEP, which received Federal Highway Administration funds to study the test's effectiveness, discovered two years ago that the test was flawed. But the state submitted the findings to EPA in July, after altering the test several times to get more accurate results, documents show.

Meanwhile, the state was reaping billions in Big Dig federal highway funds, which might have been threatened if federal agencies had learned that the emissions test was flawed. As a requirement for receiving those funds, states must show their transportation plans comply with their federally required pollution-reduction plans.

The potential loss of highway funds, though it would be hotly politicized, was not an empty threat. In 1998, the federal government determined that transportation plans for fast-growing Atlanta did not comply with the state's air quality plan, and restricted federal funds for two years, halting new projects, according to the federal Department of Transportation.

The documents sought by federal prosecutors include all communications between department officials, the Executive Office of Environmental Affairs, and the Massachusetts Highway Department; and communications with the Federal Highway Administration on audits of the federal funds that paid for the study of the emissions test.

In addition, the subpoena seeks all scientific analyses of the test, personnel files for current and former program employees, and all internal and external communications among staff and officials with Environmental Affairs or the governor's office.

Golledge, who started as DEP commissioner in July, said the department is cooperating with the investigation and had taken "extraordinary measures" to secure paper and electronic files. With about 800,000 documents set aside, he said, the paperwork related to the auto emissions program filled 22 file cabinets. In July, officials escorted employees individually to their desks and retrieved information.

"We're doing everything that's necessary to secure the record and ensure confidence in the program and the department," said Golledge. "We wanted to make sure that there wasn't any opportunity for people to tamper with the record."

"Clearly, a criminal subpoena is a very serious, serious matter," he added.

Stephanie Ebbert can be reached at ebbert@globe.com.