[30 October 2015] A second letter to the Arkansas Department of Environmental Quality (ADEQ); this letter addressed to Director Keogh.

***************************************************
Hello Ms. Keogh, (personal video evidence included subsequent to text – please watch)

Everyone I’ve contacted in Arkansas’ Leadership “chain-of-command” either outright ignores me or obfuscates relevant to this most important subject matter and my concerns articulated within this correspondence. Attorney General Rutledge pointed the finger at you, the ADEQ, as possessing jurisdiction relevant to my request for intervention.

The letter that I sent to the ADEQ on 26 October 2015 has, thus far, gone unanswered. I have attached a VIDEO at the end of the narrative where I provide evidence of the following concerns regarding Arkansas’ environment and the quality-of-life for every citizen living in Arkansas. Please note the following muffler statute from Arkansas Motor Vehicle and Traffic Law, 27-17-601…

Arkansas’ Motor Vehicle Laws – Muffler
27-37-601. Noise or smoke producing devices prohibited.
(a) Every motor vehicle shall, at all times, be equipped with a factory-installed muffler or one duplicating factory specifications, in good working order and in constant operation, to prevent excessive or unusual noise and annoying smoke.
(b) No person shall use on a motor vehicle upon the public roads, highways, streets, or alleys of this state, nor shall any person sell for use on a motor vehicle upon the public roads, highways, streets, or alleys of this state, a muffler, other than as defined in subsection (a) of this section, cutout, bypass, similar device, or any type device which produces excessive or unusual noise or smoke.

I am a retired 31 year veteran of the Houston Police Department who has been battling the vehicular NOISE debacle in our State for several years and within the United States for some seven-years now. I have begged Governor Hutchinson’s Office, Attorney General Rutledge, local Mayors, Federal and State Representatives, for assistance with this matter, but all I’ve received thus far, with a couple of exceptions, is a cold shoulder and obfuscation. Governor Hutchinson’s office refuses to even acknowledge my concerns and I’m growing somewhat weary of being ignored. Your time and your assistance is much appreciated, thank you!

The roadways of Arkansas are flooded with motorcycles, automobiles and trucks that are  operating in stark violation of Federal and State law relevant to noise and particulates emissions. It is illegal, in the State of Arkansas, to operate a motor vehicle on the roadways of said State with a muffler affixed to said motor vehicle that does not conform to the “specifications” of the “factory-installed muffler” – that is, a quiet, EPA compliant, catalytic converter equipped, exhaust mechanism.

In reference to the additional qualifiers/descriptors of “excessive or unusual noise” – I interpret “excessive or unusual” to mean noise emitted by a muffler that is louder than the original factory-installed exhaust. Yes, there will certainly be some acoustical degradation with wear and tear thus permitting a slightly enhanced exhaust note, but NOTHING compared to the illegal aftermarket muffler mechanisms emitting decibel levels many times over the original equipment, even when the original equipment has experienced many miles and years of wear. I am fully aware and have battled the controversy that “noise” or “sound” interpretation is “subjective,” but clearly articulated legal precedent does exist that nullifies this argument for enforcement purposes.

I interpret “excessive or unusual noise” to be anything in excess of the total motorcycle noise emissions restricted by the Environmental Protection Agency to 80 dB(A). Considering the EPA mandates testing “total” motorcycle noise, which includes all of the constituent moving parts evaluated during a scientifically controlled testing procedure, the EPA approved exhaust is actually quieter than 80 dB(A) seeing that the muffler is only one part or element in the overall noise producing parts being examined in combination; therefore, the factory exhaust mechanisms on motorcycles are very quiet indeed.

Having tested a number of the motorcycle aftermarket exhaust mechanisms while in an enforcement capacity, I know for a fact that the aftermarket exhaust mechanisms currently used on our public roadways emit four-to-eight or more times the 80 dB(A) stipulated as the “minimum” level of protection for the general public by the EPA. (dB calculation differentials via logarithmic scale)

In addition to the egregious violations of vehicular NOISE restrictions, it has come to my attention that one (1) large displacement V-twin motorcycle that has been modified via the installation of an illegal aftermarket exhaust mechanism requiring the removal of the catalytic converter, emits up to ten (10) times the particulate pollutants into our atmosphere as one (1) compliant compact automobile. Does this not concern you?
******************************************************
My second concern with the above muffler statute:

I interpret the muffler statute to read that, within the State of Arkansas, it is illegal to “sell” an exhaust system that does not conform to the specifications of the “factory-installed muffler.” With this in mind, there are possibly hundreds of retail/installation facilities within the State of Arkansas that install Flowmaster, Magnaflow, various LOUD engine/exhaust headers, cut-outs and extremely LOUD, illegal aftermarket exhaust mechanisms for motorcycles, auto’s and trucks that are restricted to NOT FOR ROAD USE – CLOSED COURSE, COMPETITION ONLY environments .  Am I missing something here?

Do you know which Arkansas State agency is responsible for oversight and enforcement of those retail establishments who are in violation of part (b) of the Arkansas muffler statute – or am I misinterpreting the statute?

If there is an alternative interpretation, or if the statute says something other than what I understand it to say, if I am in error, PLEASE…advise me of my error and misinterpretation so that I can cease pursuing this matter and return to enjoying my retirement.

I can only assume that Arkansas, as well as the other 49 States in the United States, as well as the Federal Government, has enacted restrictions on motor vehicle NOISE in response to quality-of-life issues and in response to the physiological harm caused by unregulated NOISE in our environment, NOISE that is especially harmful to our children, our elderly, our handicapped, our families living within the communities of Arkansas; this is well documented by the World Health Organization, the United States Congress, the United States Environmental Protection Agency and a sundry of other scientifically based studies readily available on the Internet.

The last guess-estimate was that there are some 9,000,000 motorcycles registered for street use within the United States with the largest proportion of these motorcycles operating within our urban areas. A representative dealership for Harley Davidson Motorcycle Company has told us that approximately 80% of their new motorcycle purchasers make their first “performance” upgrade an illegally LOUD, illegally polluting, aftermarket exhaust. It’s reasonable to assume that the metric, or foreign import, motorcycle riders make the same aftermarket exhaust upgrade to their street motorcycles also. (For a succinct explanation of the illegality of the disingenuous tactics used by the motorcycle aftermarket industry see: http://www.dealernews.com/…/shades-gray-selling-and-install…) (This article has been removed from the Internet, most likely due to its undeniable evidence of motorcycle aftermarket/dealer installation culpability)  These statistics suggest that some 7,200,000 illegally equipped motorcycles are operating on our roadways and within our communities with a majority of these noise and particulate polluters operating on the streets of our crowded/confined urban areas.

1) Why is this vehicular NOISE assault allowed to continue?

2) Why are we failing to provide adequate protection for our children, our elderly, our handicapped, our families?

3) Why is Arkansas permitting Mayor Sanders of Ft. Smith; Mayor Jordan of Fayetteville; Mayor Carne of Hot Springs, to invite many thousands of illegally equipped, illegally modified, illegally LOUD, illegally polluting, motorcycles into our State and within our Municipalities for annual motorcycle rallies?

4) Why are thousands of illegally equipped, noise polluting, particulate polluting, automobiles, trucks and motorcycles traversing the roadways of Arkansas on a “daily” basis completely unencumbered by you and our State and local law enforcement community? Why?

PLEASE VIEW THE FOLLOWING VIDEO DEMONSTRATING STARK VIOLATIONS OF ARKANSAS’ MOTOR VEHICLE LAWS RELEVANT TO OUR ENVIRONMENT.

Thank you,
Rick Holtsclaw, Houston PD/Retired
Loud Motorcycles Suck – Facebook & Youtube

***********************************************************************

Response from Lesley Morgan, Attorney representing Arkansas’ Department of Environmental Quality. (30 October 2015)

Mr. Holtsclaw,

Thank you for your response and your messages. I have reviewed the issues raised your email. I refer you to an opinion issued by the Attorney General’s office that addresses the section of the code that you referred to in your email. That opinion is available at the following address:
http://ag.arkansas.gov/opinions/docs/2009-015.html

As the opinion states, enforcement of this portion of Title 27 of the Arkansas Code is under the purview of law enforcement authorities in the state of Arkansas. The Arkansas Department of Environmental Quality is not designated as an authority for enforcement of Title 27. Please contact your local law enforcement officials in order to address violations of Ark. Code Ann. § 27-37-601.

Please feel free to contact me if you have any questions.

Thanks,

Lesley Morgan
Attorney
Arkansas Department of Environmental Quality
5301 Northshore Drive
North Little Rock, AR 72118
501-682-0889
morganl@adeq.state.ar.us

*******************************************************************

Response to Lesley Morgan: [30 October 2015]

Thank you Lesley for your response; unfortunately, our law enforcement entities appear to be uninterested in enforcing the laws relevant to illegally equipped, illegally loud, illegally polluting, motor vehicles in Arkansas and my attempts at civil redress to coerce them into action have been stymied by the archaic and, in my humble opinion, unconstitutional doctrine of Sovereign Immunity.

How can this be?

1) Does Arkansas not have a regulatory entity that pursues and investigates retail establishments that blatantly violate Arkansas’ laws relevant to environmental pollution?

2) How does one motivate a law enforcement community to intercede on behalf of the citizenry they swore to protect and serve if the civil courts are closed to them via unconstitutional protections?

3) Are we, as citizens of Arkansas and citizens of the United States, denied the right to equal protection under the law as unscrupulous and irresponsible men and women assault our children, our elderly, our handicapped, our families, with vehicular noise emissions that have been clearly substantiated as causing physiological and psychological harm?

Any suggests as to where I go from here?

Thank you,

Rick Holtsclaw