Navistar Opposes Request by EPA to Delay Lawsuit

This story appears in the Nov. 9 print edition of Transport Topics.

Navistar Inc. last week opposed the U.S. Environmental Protection Agency’s request to stop action on the truck maker’s lawsuit against the agency, which said it needed time to review its guidance on 2010 emissions regulation.

Navistar said Nov. 3 that the agency’s request was a “pointless strategic maneuver, aimed at improving EPA’s litigation posture rather than addressing the vital matters at hand.”

Navistar has sued EPA, arguing that the agency’s guidance for truck makers using selective catalytic reduction to meet 2010 emissions levels was actually a rule and that the federal agency had not followed the correct procedure in making a new rule.

EPA asked the court to delay further legal action on the lawsuit for 60 days, to “review and reconsider” its 2009 guidance for SCR, one of two competing technologies to meet the 2010 standard.

EPA said in its Oct. 23 filing that it would “clarify that the guidance was not intended to change existing regulations or be binding or regulatory in nature,”

The agency added that is review of the SCR guidance “could resolve some or all of Navistar’s issues.”

EPA declined to comment on its motion.

Navistar also declined to comment on its opposition, but in recent court filings has disputed allegations of its competitors that the litigation is aimed at delaying the 2010 EPA requirements. Navistar, which makes International trucks, is the only manufacturer planning to use exhaust gas recirculation rather than SCR to meet the 2010 regulation.

Spokesmen for four SCR engine makers — Volvo Trucks North America, Mack Trucks, Detroit Diesel Corp. and Cummins Inc. — said that even if a federal appeals court grants the stay, it would not delay their plans to introduce their 2010 EPA-compliant engine lines.

Navistar argued that even if EPA revises its Feb. 18, 2009, SCR guidance memorandum — which specifies such requirements as diesel exhaust fluid tank size, DEF warning and indicator warning light requirements when fluid is low — it will not address the issues Navistar has raised in the litigation.

Although EPA’s 2009 guidance used the term “must” in listing several of the suggested requirements, officials have said the guidance is not binding. In court documents, the agency claimed the guidance was merely meant to “advise manufacturers of potentially acceptable measures for ensuring that SCR-equipped engines comply with certain elements of the regulations implementing the NOx emission standard.”

But Navistar claimed the guidance has the effect of being a “legislative rule,” and that by not going through the rulemaking process, EPA violated mandatory rulemaking procedures.

Navistar also argued that the SCR process has a “fatal flaw” in the control strategy for cutting nitrogen oxide emissions because it requires drivers to ensure that the DEF tank stays full. Without the DEF, the engine does not reduce NOx emissions to the 2010 standard.

One point of dispute in Navistar’s lawsuit is a section of the guidance that says a truck may travel up to 1,000 miles or 20 hours if it runs out of DEF. After that distance, SCR systems must disable the engine, either after fueling, parking or when attempting a restart, until the fluid is replaced.

“Because the 2009 SCR guidance allows — indeed invites — operators to drive without the SCR system operating for extended periods, much of the time juiced-up amounts of raw, uncontrolled NOx will go right out the tailpipe at significantly higher levels than the standards in effect today,” Navistar declared.

Navistar said EPA “must eliminate the deficiencies that allow this type of SCR system to be easily disconnected, prevent the system from being turned off through either manual disconnection or failure to replenish the diesel emission fluid on which the system depends, and eliminate the incentives inherent in this system for tampering and cheating.”

SCR engine makers, who have joined the lawsuit as “friends of the court,” have not yet addressed the allegations in court, but have said they were not concerned about potential delays.

“The way I interpret the stay is just that the EPA wants more time to form its case,” Tom Linebarger, president of Cummins, said at an Oct. 30 investor conference call. “But it’s our view that the case has no merits and will not succeed in any way, and by the time the case is even heard we’ll be making engines and customers will be selling trucks.”

“Essentially, what Navistar is seeking is a delay in the 2010 regulations, and to quote our general counsel, they’re grasping at straws and looking for ways to slow it down — and us and the rest of the industry are ready to go,” Linebarger said.

“Volvo’s readiness for 2010 is not affected by EPA’s request,” said Jim McNamara, a spokesman for Volvo Trucks North America. “We’ve already built EPA ’10 customer trucks on the production line at New River Valley, for instance.”

John Walsh, a spokesman for Mack Trucks, said “Mack’s EPA ’10 project is fully on track . . . and production of customer trucks already under way at our Macungie [Pennsylvania] plant — and EPA’s filing for a stay will not delay that readiness.”

An Oct. 29 statement by Detroit Diesel said the company “does not anticipate any delays in the certification of its 2010 engines.”