Attorneys for an environmental group have recommended that a maximum $4.4 million in Clean Air Act penalties could be assessed against the Diesel Brothers reality TV stars for rigging diesel pickup trucks to foil pollution controls.
Utah Physicians for a Healthy Environment urged U.S. District Judge Robert Shelby in court documents last week to impose penalties up to that amount against the truck builders for illegally modifying or selling 20 trucks and selling “defeat devices” to truck owners nationwide.
But attorneys for the Diesel Brothers disputed the number of violations that were committed and argued that significant penalties would “devastate” the local businesses operated by the defendants. They said penalties are justified for $581,000 at most.
The competing takes on the extent of damage done by the defendants follow a November bench trial before Shelby in a civil suit filed by the doctors’ group in 2017. The judge now will sift the recommendations and issue final orders in the case.
Nitrogen oxide emissions from three trucks stripped of controls is equivalent to the combined emissions of 100 untampered trucks, indicating the disproportionate impact of the modifications, the doctors’ group said.
The group sued after seeing the Diesel Brothers promoting smoke-spewing modified trucks on their Discovery Channel show, now in its sixth season.
Defendants include David Sparks, known on the show as “Heavy D”; Joshua Stuart, “Redbeard”; and Keaton Hoskins, “The Muscle.”
Sparks in the owner of Diesel Brothers affiliated companies including B&W Motors, doing business as Sparks Motors in Woods Cross, and Diesel Power Gear, the online merchandizing arm. Those entities also are defendants in the suit.
Seven Utah counties repeatedly have not met federal air pollution standards, especially on the Wasatch Front. The doctors’ groups says ozone and fine-particulate pollution emitted by diesel engines cause various health problems including cancer.
“The need for general deterrence is paramount,” the doctors’ group said in its recommendation for penalties, especially because the Diesel Brothers have a nationally broadcast TV show and millions of followers on social media.
The defendants achieve significant economic benefits from the TV show and their online truck giveaway sweepstakes, plus product endorsements, book sales and other spin-off ventures, the doctors said.
Civil penalties sufficient to recover $1 million of that economic benefit should be assessed, and “this sum should not be lowered by any … claim of Mr. Sparks of an inability to pay,” they said.
Sparks and his companies still have three illegally modified trucks and have not removed the defeat devices, and many of the 17 such trucks it sold still are in circulation, the doctors said.
Also, the defendants sold one modified truck, called the “Holy Grail,” even after the court issued a preliminary injunction against the sales in 2017.
During the trial, Sparks said they went ahead with that sale because counsel advised that the sale was not prohibited due to the truck having been offered as a prize before the injunction.
“In an even more brazen example of non-compliance,” the doctors said, Sparks sold another tampered truck, “The Rock,” in February 2019.
Asked about it during the trial, Sparks said, “It was during a time when sales obviously were really slow for us, so I turned to my dealership general manager and I said list everything for sale. Sell anything you can as quick as you can, because we are hurting for cash flow.”
Diesel Brothers’ court filing said stiff monetary penalties would force B&W Auto/Sparks Motors into bankruptcy and overall would “devastate” the Sparks entities.
The defendants also contended the doctors’ group lacked legal standing to call for penalties on many of the violations because most of the trucks and defeat parts went to out-of-state buyers.
However, the doctors group presented information indicating Sparks has deep assets not reflected by his personal tax return, which indicates average annual income of $312,000 over 2016-18.
Sparks made another $482,000 in 2016-18 from the Discovery Channel but redirected that income to B&W Auto, according to the court record.
The doctors’ groups also entered exhibits showing Sparks “represents himself as a multi-millionaire” and he is capable of turning a $75,000 advertising expenditure into $750,000 in revenue in one month.
Meanwhile, Sparks is building a 7,500-square-foot home in Bountiful, having paid $310,000 for the lot and carrying a $950,000 construction loan, according to the doctors’ group.
Sparks also has substantial ownership interest in 13 limited liability corporations and owns 10% of Fremont Island in the Great Salt Lake, a share valued at $600,000, they said.
The Diesel Brothers’ arguments that stiff Clean Air Act penalties would severely damage the businesses “strain credulity,” given the extent of the other holdings, which also include a helicopter and two planes, the doctors’ group contended.
In additional to the penalties, the group also asks that the Diesel Brothers pay $100,000 into a Tampered Diesel Truck Restoration Program to be run by Davis County.
In its documents, the Diesel Brothers say B&W Auto already is struggling and had only three trucks in its inventory as of November.
They also argued against $1 million in attorneys’ fees they assert the doctors’ group eventually will be seeking in the case.
The Diesel Brothers’ attorneys said the “civil penalty and attorneys’ fees must be substantially mitigated to avoid (the businesses) from being devastated, especially when defendants are ‘truck people’ and the 22 trucks and 104 emission defeat parts (only 14 sold to Utah customers) represent a very small minority of their businesses.”
And Sparks is contrite about the pollution issue, they said.
“In the early days of the business, Sparks readily admits he did stupid things, and that he did not fully understand the impact his actions had on air quality,” according to the court filing.
“Sparks has since worked with the EPA to ensure compliance … and has caused a bold disclaimer to be displayed at the beginning of every Diesel Brothers episode, to encourage its followers to not tamper with emissions control systems on their vehicles.”