Diesel engine makers sue California agency over mandatory upgrades

| Wednesday, April 20, 2005

A group of diesel engine manufacturers have sued the California Air Resources Board over an update of software in older trucks designed to reduce emissions.

CARB announced in March 2004 that it had adopted a voluntary plan to upgrade pollution-control software on diesel trucks that operate in the state.

However, the board alleged in December 2004 that all but one engine manufacturer – Detroit Diesel – had failed to meet agreed-on goals as to how many engines would be upgraded by that time.

At that point, CARB decided to end its seven-month voluntary program. The now-mandatory order affects all diesel engines made from 1993 to 1998, including both those based in California and those based elsewhere operating in California, Jerry Martin, a spokesman for the board, told Land Line.

Four of the companies – Cummins, Caterpillar, Volvo and Mack – sued the state agency in Sacramento County Superior Court in late March, asking a judge to give them an injunction that would stop CARB from changing the agreement that led to the upgrades.

The regulations were rooted in a controversy that started in the 1990s. Officials claim that at that time, engine manufacturers used computers on diesel vehicles that allowed their engines to comply with emission limits. However, officials claim those same computer chips also allowed the engine to operate differently during highway driving, increasing nitrogen oxide emissions, often referred to as NOx emissions.

The U.S. Environmental Protection Agency and Air Resources Board considered those chips to be “defeat devices,” or devices designed to help the vehicle avoid pollution restrictions.

In 1998, Caterpillar, Cummins, Detroit Diesel, Navistar, Mack/Renault and Volvo signed consent decrees with the EPA, the Department of Justice and the California Air Resources Board. The Low NOx Rebuild Program, which was part of those consent decrees, called for the manufacturers to upgrade software to reduce NOx emissions.

The upgrades were to occur when engines were overhauled. Now, they will be required whether or not the engine is in for an overhaul.

Under the original agreement, truck owners took their rigs into dealerships, which would perform the half-hour to hourlong installation of new software. The engine manufacturers have agreed to pay for the software and its installation, CARB officials said.

The engine manufacturers were supposed to have 35 percent of the engines upgraded by November 2004. However, outside of one engine maker that met its goal, manufacturers were able to upgrade only 18 percent of engines. At the start of the program in March, 13 percent were already upgraded.

However, the engine makers say that putting the installation at the time of a rebuild is important. In court documents, they said the timing was set to “minimize or eliminate expense and downtime for truck owners.”

The manufacturers also claim that when public comments suggested that the new software be installed earlier, that CARB joined other parties to the settlement in rejecting the suggestion.

However, in a statement issued April 19, Catherine Witherspoon, executive officer of CARB, placed the blame for the situation squarely on the shoulders of the engine makers.

“The actions of these manufacturers have put many lives at risk and cost California millions of dollars,” Witherspoon said in the statement. “Now these manufacturers are suing the ARB to avoid their responsibilities. They want truck owners, their customers, to pay the cost of correcting the software programmed to emit excess pollution.”

– By Mark H. Reddig, associate editor
mark_reddig@landlinemag.com

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