Four diesel engine manufacturers (Caterpillar, Cummins, Mack Trucks and Volvo) went to court Friday (through the EMA—Engine Manufacturers Association) in California on Friday to block the implementation of a rule set to take effect in a week regarding mandatory engine software upgrades to meet state pollution standards.

The genesis of this particular conflict was in 1998, when ARB engineers working with EPA discovered that diesel manufacturers were using dual calibrations in their electronic timing systems on heavy-duty engines produced between 1993 and 1998 to compromise the results of testing for NO_x emissions.

An investigation revealed that since the early 1990s the manufacturers used the dual calibration devices (called “defeat devices”) to cause the engines to perform one way when being tested for compliance and another under actual highway conditions.

The systems were designed to recognize normal highway operation and then increase fuel economy at the expense of greater emissions of NO_x.

US EPA and ARB brought enforcement actions in 1998, and subsequently they and the manufacturers reached a settlement.

Part of the settlement stipulated that the manufacturers would develop software to correct their onboard programs and eliminate emission increases. This software, the manufacturers agreed, would be “reflashed” (loaded onto the systems’ computers) onto every engine as they came in for rebuild or at the consumer’s request.

The regulations apply to an estimated 300,000 to 400,000 vehicles licensed in other states that drive through California, as well as 58,000 California-licensed trucks.

Through the negotiations with manufacturers, ARB said that it expected the rebuilds would occur between 300,000 to 500,000 miles.

According to ARB:

In reality many trucks were not brought in for rebuild until much later; from 750,000 to one million miles. Subsequently, this vastly increased the time the engines spewed pollution at higher levels. By March of 2004, only thirteen percent of the engines with defeat devices had been corrected. ARB calculates that the amount of excess pollution emitted in California by the vehicles is about 1.5 million tons of NO_x.

In a March 2004 hearing, ARB agreed to work with manufacturers on a voluntary program to “reflash” these engines by 2008. As markers of progress the ARB agreed to targets of 35% by October 2004; 60% by May 31, 2005; 80% by January 31, 2006; and ultimately 100% by 2008. As a backstop to the volunteer program, the ARB adopted a regulation that would legally require upgrades to be installed by the manufacturers if the targets were not met.

In October 2004, ARB decided that the targets were in jeopardy. At the December 9, 2004, hearing, the Board confirmed that all but one manufacturer failed to meet its voluntary program target. The Board then activated the regulation requiring manufacturers to promptly reflash all the engines.

Several of the manufacturers balked, claiming that the agency was reneging on their agreement, and arguing that ARB could not arbitrarily change the rules because it was dissatisfied with the pace of implementation.

They further argued that (a) state law does not grant ARB authority to impose emissions-related retrofit requirements on used vehicles or engines that are currently in operation and (b) ARB does not have authority to impose additional requirements and responsibilities on engine and vehicle manufacturers for vehicles that have already been sold into commerce and are no longer under the manufacturer’s control.

They also argue that they’ve already paid the state $37 million in civil penalties and other costs.

In a tentative on Friday ruling prior to hearing arguments, the judge denied the manufacturers’ request that the initial April 30 compliance deadline be delayed while their lawsuit proceeds.

Resources:

• ARB Press Release

• ARB Voluntary Software Upgrade Program for Diesel Trucks

• EMA (Engine Manufacturers Association): Reflash Rule Court Action Fact Sheet and Press Release