January 30, 2020
In May 2018, the U.S. Consumer Product Safety Commission closed out its oversight of a 2016 Polaris safety campaign. Recall 16-146 was the single largest of 13 Polaris fire-related recalls, covering some 133,000 Model Year 2013-2016 RZR 900 and RZR 1000 recreational off-highway vehicles. These models also remain among the Medina, Minnesota, company’s most hazardous, responsible – at the time of the recall – for more than 160 reports of fires and 19 injuries, including second- and third-degree burns and the death of a 15-year-old girl.
Just six weeks earlier, the commission and Polaris had reached an agreement: Polaris would pay a $27.25 million fine for neglecting to report these fires and similar fires involving the 2015 Ranger, but make no admissions that the RZR ROVs were defective, nor that it failed to meet its statutory requirements to fully and promptly report the myriad incidents, nor that it knowingly violated any regulations which it didn’t admit to violating in the first place.
Despite a CPSC staff investigation, which found that the RZRs were fire and burn hazards, “which could create a substantial product hazard and create an unreasonable risk of serious injury or death,” and that Polaris waited until February 2016 to report the 150 fires, 11 burn injuries and one death that began in 2013, all Polaris had to cop to was recalling the vehicles “out of an abundance of caution.”
Such a deal.
The Polaris consent agreement was brokered under the stewardship of former CPSC Commission Chair Ann Marie Buerkle, who left the commission in October 2019 to great relief in many quarters, after the U.S. Senate failed to advance her nomination. Key Commerce Committee members had opposed her anti-regulatory, anti-consumer positions. Buerkle’s brief tenure was also marred by the commission’s handling of child death and injuries from Fisher Price Rock ‘n Play and Britax strollers, as well as disclosures of massive data breaches.
But there are troubling signs that Polaris ROV fires are still being brushed aside by the CPSC as the company quietly released four stop-sale/stop-ride notices and safety bulletins for additional fire-related issues affecting some 2018-2020 models of the RZR Turbo and the Ranger XP 1000. According to Polaris, there are four separate problems that are resulting in fires, including misrouted fuel lines (a concern that was also addressed in 2016 recall), drive belt failures causing fuel line damage, loose fuel rail mounting fasteners, and clutch inlet covers used in manufacturing that were not removed before sale. Polaris’ recent actions – which are not “recalls” – can be found only on the company’s Product Safety Announcements website page and included in their safety recalls search. Consumers expecting to find these announcements on the CPSC website apparently should know better than to go to the federal safety agency with regulatory and enforcement authority for Recreational Off-Road Vehicles for information about product hazards so significant that they shouldn’t be used or sold because of fire concerns.
Freedom from Information Responses
Five years ago, Safety Research & Strategies began peppering the CPSC with Freedom of Information requests in an attempt to understand exactly how a product so fundamentally defective was failing so frequently and at great risk to consumers without a robust regulatory response. Between October 2015 to September 2019, we made 32 separate requests for recall files, death and injury documents, and materials from special CPSC investigations, called In-Depth Investigations (IDIs) – anything that would illuminate this narrative.
The responses began dribbling in on January 2017. The first set, responding to SRS requests for Polaris materials released in old FOIAs submitted by other requesters, yielded nothing. There were no documents responsive to the request; the original submitter didn’t want to pay the fees or withdrew the request, so no documents were released; the requested materials were being withheld because they were the subject of a law enforcement action or concerned intra-agency deliberations. One request unearthed several news stories about Keylee Latham, a Royse City, Texas, 11-year-old girl who suffered third and fourth-degree burns when a 2010 Polaris Ranger she was riding in overturned and exploded in flames. Every name in the news articles produced in the FOIA was redacted – even though the Latham incident received widespread coverage in the Texas media and was easily available in the public domain.
The second wave of communications from the CPSC merely noted that the request had entered the 15-day phase – required by the Section 6B of the Consumer Product Safety Act – in which the CPSC allows the manufacturer to review any information disclosed about it, ostensibly to prevent trade secrets or “misleading” and “inaccurate” information from being released. Manufacturers can hold up FOIA responses for months by objecting to document releases.
In March 2018, SRS began to receive the CPSC’s “substantive” responses, which were as insubstantial as possible. For example, take the request for the file associated with Recall 15-743. This campaign involved 4,300 Polaris Youth RZR recreational off-highway vehicles with leaking fuel pump retaining rings, which posed a fire risk. In response, the CPSC released 370 pages of recall press releases, emails involving meeting logistics and lots of blank pages. Every scrap of information involving Polaris’ response to the CPSC’s information requests, the corrective action plan or Polaris’ performance in executing it was redacted. Even the specific VIN range of the affected vehicles noted in the CPSC press release was redacted, even though it is part of the CPSC press release available online to this very day.
Other responses to requests for recall files were similarly obtuse. The CPSC released 741 pages of documents in response to an SRS request for the files emanating from Recall 16-755, a June 28, 2016, recall for 43,000 Polaris Ranger 570 ROVs which could overheat during heavy engine loading, slow-speed intermittent use and/or high outdoor temperatures. The vast majority of pages were redacted in their entirety.
In May, SRS filed separate appeals for three highly redacted responses with an opening that neatly captured the glacial pace of the responses and the blizzard of white pages:
In more than a decade of requesting and receiving CPSC recall files, never have we waited so long for so little. First, this response took 832 days, which is nearly seven times the agency average of 124 days to process a complex FOIA request, as documented by the Commission’s 2018 annual FOIA report. Second, documents the CPSC has routinely released to us in the past, such as incident reports, epidemiological reports, recall effectiveness check summaries, the name of company representatives with whom the CPSC exchanged formal communications; complete emails regarding the wording of joint CPSC/manufacturer recall notices, and product safety assessment reports, are wholly absent or heavily redacted.
We challenged every redaction and kicked the slats out of the FOIA exemption claims the CPSC used as their basis. Take the July 2016 recall – the engine over-heating defect had been linked to 11 fires, but no injuries. Yet, the commission withheld 400 pages in their entirety under Exemption 6, which provides for the withholding of personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. If this defect had caused no injuries, what private medical records is the agency withholding? Were there injuries or deaths attributed to this defect that the agency has not disclosed?
A month later, the CPSC responded by partially granting our appeals and directing the CPSC to release a few more documents. In December 2019, SRS received the withered, rotten fruits of its appeals: the same production and largely the same redactions. We learned nothing new about Polaris’ corrective actions plans or any responses to the CPSC.
A Few Rays of Sunshine
The CPSC continues to send us blank caches of documents from other recall files. But the few unredacted pages have given us a better picture of how concerned commission staff has been about Polaris’ proposed fixes.
In September 2016, Polaris launched Recall 16-257, covering 13,000 MY 2016 RZR Turbo and Turbo XP vehicles, in which “the vehicles’ engine can overheat and turbo system’s drain tube can loosen, posing a fire hazard.” Polaris had previously recalled 2,300 of the vehicles for the leaking oil drain, but this time it mentioned that the excessively hot engine was the catalyst. Polaris reported 19 fires and six reports of injury. One of the incidents, which caught 15 acres of forest land on fire in Utah’s American Fork Canyon, caused severe burn injuries to a 6-year-old girl.
This recall related to a Polaris Safety Bulletin that listed two specific concerns: turbocharger oil drain line fasteners that may loosen, and the “engine control unit could allow the engine to continue to run in an extreme overheat condition which could result in damage to the cylinder head or cylinder head gasket and allow a release of engine oil or coolant.” Both conditions posed a fire hazard. The repair involved replacing turbo oil drain line and re-calibrating the ECU. This bulletin also instructed dealers to inspect heat shields, replace heat shield fasteners and update a fuel warning decal.
According to documents released to SRS, on July 27, 2016, Jeffrey Jaucshneg, of the CPSC Compliance Office, sent an email to Polaris’s General Counsel Stacey Bogart that asked whether the company did any real world testing on the proposed ECU recalibration to make sure it actually worked because of the wide array of variables, like how often the unit has been driven, the condition of the engine, and whether the vehicles have already overheated. He expressed his fears that Polaris was taking a throw-the-spaghetti-at-the-wall approach to its root cause analysis and without acknowledging the underlying problem of excessive heat in the engine compartment:
This is only my opinion, but you stated (Firm Engineers) at the meeting that this vehicles engine was trimmed out for performance (maxing the engines abilities) and my understanding that this engine runs hot anyway. Is this problem going to fester in after 50 rides instead of 20 … I do not believe you can come up with a conclusive fix without several weeks of testing…I am concerned that the ECU calibration is not going to solve the issue it will just prolong it from happening again…I have always given my all to your cases, my gut feeling on this to offer a refund to just get these units out of population, that way you have given the consumer an out. I really think even with the recalibration the vehicles will still have incidents in the future.
He also advised that Polaris post a stop-ride notice at trail heads of all public land to prevent another wildfire incident. Polaris’s response is redacted. Despite his concerns, the documents show that only a month later, Jauschneg had signed off on the proposed fix.
Polaris was also aware of the severity of the situation. An email on July 8, 2016, from someone at Polaris (name redacted), to the CPSC’s then-Assistant Commissioner of Enforcement and Import Operations, Carol Cave, conceded:
Please know we understand your frustration and are not proud about the thermal issues and recalls. We are working hard to fix these issues…we have made a number of personnel changes in our safety and engineering organizations and implemented improved processes in design, manufacturing and post-surveillance. We are not done and will work hard to continue to improve.
The response to our FOIA regarding CPSC recall 16-146 was also 384 pages of largely unbroken white-ness, but the available pages offered a few snippets.
For one, the CPSC required that Polaris submit the recall, finding that its propensity to combust constituted a safety defect with multiple root causes:
After careful consideration and in accordance with 16 C.F .R. § 1115 .12(a), the staff has made a preliminary determination that the MY 2014-2016 RZR XP 1000 and MY 2016 RZR S 1000 (“Subject Products”) manufactured by Polaris Industries Inc. (“Firm”) present a substantial product hazard under section 15 (a) of CPSA, 15 U.S.C. § 2064 (a). Specifically, the voltage regulator used on all Subject Products fails and its thermal control fails to limit temperature; the vinyl fuel line may ignite if it comes in contact with exhaust or other engine components; the heat shield on the Silencer can ignite from Silencer heat; water can intrude into the fuse box causing an electrical short; fuel spilled in the cargo box can come in contact with the exhaust header; and the some of the vehicles can misfire on one cylinder heating the silencer catalyst. These identified issues all can result in fires in the vehicles while in use, posing risks of severe burn injuries to consumers.
The CPSC required Polaris to replace the fuel vent line, voltage regulator, divider panel heat shield, and fuse box seal; verify proper fuel vent line routing; update the ECU calibration to prevent misfire; and add exhaust shielding in the cargo box. The corrective action plan also required, “Redesign or modification of future products.”
The documents also show that the fire risk problems with RZR 900 were on the CPSC’s radar before September 2015, when Polaris issued recall 16-702 for 54,000 model year 2015 RZR 900 and 1000 series vehicles. In February 2016, Polaris had approached the CPSC about expanding that recall. In March 2016, the CPSC asked its engineers to review the information gathered thus far. At the time, they knew of six incidents that included three deaths in three distinct incidents.
In the spring of 2016, CPSC conducted some technical reviews, including an evaluation of the flame resistance of the two types of Polaris fuel vent hoses. Their report noted that Polaris was previously using a flexible PVC tubing that is normally not recommended in temperatures above 160℉ and now proposed to use tubing that could withstand temperatures up to 257℉. Notably, the CPSC concluded:
The current tubing will melt if exposed to high temperatures; this is the likely mode of failure in the incidents reported by Polaris Industries Inc. This tubing will soften with increasing temperature, resulting in decreased tensile strength, but these changes will be transient unless a certain threshold is reached. CPSC technical staff observed permanent deformation or melting at temperatures between 310°F and 320°F resulting from heat fluxes between 5kW/m² and 6kW/m².
The proposed replacement tubing does not melt, however thermal damage will result in stiffening and weakening of the tubing. When the reinforcement of the tubing has been sufficiently damaged, the proposed replacement tubing will tear when bent at a moderate radius. CPSC technical staff observed that tearing will occur after an exposure to temperatures between 460°F and 535°F resulting from heat fluxes between 10kW/m² and 12.5kW/m².
So, the CPSC found that the fuel vent tubing Polaris originally used softened, lost tensile strength and deformed each time the vehicle was used – and it melted when exposed to high temperatures. The agency also concluded that even the replacement fuel vent tubing Polaris planned on using eventually stiffened, weakened and would tear, but at higher temperatures (which the CPSC observed in its testing) than the originals.
The CPSC confirmed that several fire incidents reported by Polaris were connected to fuel vent tubing, but noted the difficulty in determining the cause and origin of fires when vehicles were completely burned. Nonetheless, a CPSC memo once again noted that regardless of which component catches fire, the heat from the exhaust manifold is generally the initiator:
ESMC staff believes there would be other reasons for the fires that led to the total loss vehicles that are unknown, given that there are many other potential sources of fire near the exhaust manifold (which appears to be the origin of the fires described by consumers).
In another review, CPSC staff candidly pointed to a multitude of fire origins, which suggests that the high temperature conditions in the engine bay noted by Jauschneg and the unnamed Polaris employee were understood as the real problem afflicting these vehicles.
From review of the incident data it is clear that multiple occurrences of fire in the vehicles have originated and propagated from more than one origin. These factsindicate a pattern of fire scenarios that are preventable through appropriate design measures.
By review of the Polaris RZR 1000 vehicle incident data, CPSC staff has found patternsof fire propagation from multiple origins that pose a significant threat to the safety of vehicle occupants. Staff believes that the causes of fire in the vehicles are addressable and actions should be taken with due haste to prevent them. The firm is attempting to develop remedies tor the fire issues.
The CPSC engineers also evaluated Polaris’s several proposed changes, including a plan to add heat shields. The CPSC noted that the original heat shields were polyurethane foam sandwiched between two thin aluminum sheets, which could catch fire if the foam were exposed to heat. Polaris proposed to use shields with an air gap that could provide insulation. Polaris was also going to add yet another heat shield above the exhaust area to prevent gasoline spillage from contacting the hot engine exhaust areas.
The CPSC staff approved the countermeasures, but noted these were only stop gaps:
While ESMC staff believes not all of the fires can be prevented, Polaris has provided a multi-pronged approach that will likely reduce the risk of fires associated with the subject vehicles.
CPSC documents also pointed to one Polaris fix that needed fixing. After the recall was issued, the agency learned that the replacement voltage regulator Polaris chose as a remedy for the original voltage regulator hazard identified in the April 2016 recall was experiencing loose ground connections and subsequent voltage spikes. While much of the information is redacted, it appears that the voltage spikes caused fires in vehicles that had been repaired under the recall. In 2017, CPSC engineers reviewed Polaris’s proposed changes to the replacement voltage regulators, which included the use of diodes to suppress voltage surges and found them acceptable.
While the CPSC appears to have accepted Polaris’s assertion that the countermeasures it had begun to implement in the middle of the 2016 model year production made their vehicles less fire-prone, Polaris later recalled the 2017-2018 model years for another set of problems caused by excessive heat in the engine bay – and fires continue to afflict 2019-2020 models.
Reading Between the White Lines
So, what do the copious redactions plus a few key nuggets tell us? CPSC staff have been obviously and seriously alarmed by fires plaguing Polaris off-road vehicles. And they had questions about the efficacy of Polaris’ fixes given what both the company and CPSC seemed to recognize: the high temperatures in the engine bay were the underlying problem.
A year after the CPSC closed the file on Recall 16-147, there was another Polaris fire-related death. Steven Groves, 23, died of his burns, after a 2017 Polaris RZR Turbo burst into flames, as he and the owner and driver, James Bingham, rode the Weiser Sand Dunes in Idaho. Bingham’s vehicle had been recalled and repaired in 2018. In September, a New York Times article cited fires had been reported for model year 2019 vehicles. An October Minneapolis Star Tribune news story tallied two other Polaris lawsuits emanating from fires that occurred in January and February of last year. And CPSC’s Saferproducts.gov included a report involving a 2018 Polaris RZR XP 4 Turbo, in which the consumer related the harrowing tale:
Within 5 minutes into the ride my wife, who was the front passenger, smelled fuel and then saw flames to her right. My wife shouted, “We are on Fire!” I looked back and saw flames around my two friends in the back seat. I slammed on the brakes and shouted for everyone to get out. My wife and the rear passenger seated behind me were able to get out first. I was delayed with the 4-point harness I had on, but all other positions were 3- point (automotive style) belts. The right rear passenger shouted, “I can’t get my seat belt off.” As I moved towards her, I saw flames were all around her, she was able to release the belt and flee to safety. Within 10 seconds of her freeing herself, the rear seat erupted in flames. I then moved towards the rear of the RZR. It was clear the fire was coming from directly to the rear of the back seats. I looked under the RZR and could see active and intense fire coming from what appeared to be from the front, top area of the engine (closest to the rear seats). I made a futile attempt to extinguish the fire with sand/dirt. My actions had no effect on the fire and it quickly engulfed the entire RZR in flames.
I had a number of friends tell me to call POLARIS and have them drop a new RZR in my garage. It appears this is how this company handles its dangerous products instead of FIXING THE PROBLEM. I don’t want a new RZR, I WANT this company to STOP making a death trap. I came within seconds of seeing my friends get seriously injured or burned to death. It’s clear the recalls and/or design of the machines have not fixed the issue with them catching fire.
So, burn it, replace it, quietly stop the sales – that’s how Polaris handles the problem. How about how the CPSC handles it? More than 30 FOIA requests later, we still don’t know. And the Commission doesn’t want us to find out.
One of the Commission’s biggest ace-in-the-hole played in denying SRS requests was the claim to a 7A FOIA exemption – which pertains to “withholding from disclosure records or information compiled for law enforcement purposes, to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.” The CPSC claimed that our requests for information contained within Polaris recall files for ROVs linked to fires, injuries and deaths consisted of “active and preliminary internal staff notes, memoranda, correspondence, analyses and other records. It would not be in the public interest to disclose these materials because disclosure would prematurely reveal information used in the investigation, thereby interfering with this matter by disclosing the government's basis for pursuing this matter.”
But, Polaris and CPSC settled their differences in April 2018, and Polaris declared it had done nothing wrong – so, investigation done, right? Stop-ride / stop-sales notices with accompanying fixes for fire hazards, no recall needed, right?
Maybe time for some more FOIAs.[For more reporting on CPSC, Polaris, and ROV fires see: CPSC Takes on ROV Fire Hazards]