Navistar Loses Bid to Force EPA Engine Recall

     WASHINGTON (CN) – An Illinois-based engine manufacturer cannot force environmental regulators to recall allegedly more pollutant products made by its competitors, a federal judge ruled.



     Navistar, which manufactures an exhaust-regulation technology to control admissions, hoped to force the Environmental Protection Agency to recall its competitors’ Model Year 2010 heavy-duty diesel engines. These engines are equipped with a competing technology that Navistar claims does not comply with emissions standards promulgated under the Clean Air Act.
     The U.S. Environmental Protection Agency persuaded U.S. District Judge Colleen Kollar-Kotelly to dismiss Navistar’s complaint Tuesday for failure to state of claim.
     Kollar-Kotelly also rejected Navistar’s request for discovery and allowed intervention by the competing manufacturers, Cummins Inc., Daimler Trucks North America, Detroit Diesel, Mack Trucks and Volvo Group North America.
     The technology in question relies on “liquid, urea-based selective catalyst reduction (SCR),” according to the court.
     Navistar claimed Model Year 2010 SCR engines certified by the EPA as being compliant with applicable emissions standards actually violate emissions standards when in on-road use. It further claimed the EPA had subsequently determined that engines are not designed consistent with federal air quality regulations. After reaching this conclusion, the agency must order a mandatory recall under the Clean Air Act.
     The bulk of Navistar’s complaint focused on purported flaws in the competing engines, and it asked the court to grant it significant discovery related to “the actual or potential non-conformance” of the engines, including “any emissions-related testing,” “any mandatory or voluntary recall[s],” and “any other actual or proposed action to address any non-conformity, failure, problem, [or] malfunction.”
     Navistar contended that it was taking this action in attempt to reduce what it views as the EPA’s “illegal favoritism towards companies producing engines with SCR technology.”
     Given the scope and potential ramifications of Navistar’s charges, Kollar-Kotelly held that it was wholly appropriate to allow the other engine manufacturers to intervene in the case. Favoring Navistar would, at a minimum, force the competitors to contest the EPA’s determination that their engines do not conform to emissions standards.
     Though the EPA must take steps to remedy what it views as violations of the Clean Air Act, the act is silent as to what qualifies as a determination,” Kollar-Kotelly said.
     “The legislative history does not provide any additional guidance,” she added. “The Conference Report suggests the determination would be made ‘on the basis of inspections or studies,’ but does not elaborate further as to the format of the ‘determination.’
     “Under Plaintiff’s interpretation, possession of the studies themselves would amount to a ‘determination,'” Kollar-Kotelly continued. “The EPA’s requirement that the agency analyze the data and come to a written conclusion based on information including studies, comports with what Congress envisioned.”
     But the record does not support the allegation that the EPA violated statute and let noncompliant engines remain on the road by failing to acknowledge its determination and recall the allegedly offending engines.
     “The EPA publicly acknowledges that mandatory recalls ordered by the EPA are rare,” she wrote.
     Navistar failed to cite a single agency document that actually said SCR diesel engines do not conform to the relevant emissions regulations, the court said. Updated guidelines for certification of future engines moreover do necessarily call prior year models into question.
     Giving Navistar leave to pursue additional discovery would be an exercise in futility, Kollar-Kotelly added.”The Court will not deny summary judgment and allow Navistar to go on a fishing expedition in the EPA’s records simply because Navistar is dissatisfied with the fact that the EPA has not made a determination that the EPA is under no obligation to make,” the 15-page decision states. “The EPA has not made the relevant determination, and the court cannot force it to do so.”

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