Caterpillar seeks court intervention in diesel dispute with Cummins

Wed November 06, 2002 - National Edition

Heavy-duty diesel engine maker Caterpillar is again seeking court intervention in its dispute with rival Cummins over the technology behind a U.S. EPA-approved clean engine line.

Peoria, IL-based Caterpillar told the U.S. Court of Appeals for the District of Columbia earlier this month that it would challenge EPA on its April decision to certify Cummins’ newest engines.

Specifically, Caterpillar claims Cummins’ engines are mounted with illegal "defeat devices,"emission systems capable of meeting EPA standards during testing but which become disabled during normal highway driving. Caterpillar must submit its arguments in early November.

The latest court motion comes a month after Caterpillar was rejected in the U.S. District Court for the District of Columbia. There, Judge Henry H. Kennedy said the Cummins certification issuewas outside his jurisdiction. In the same decision, Kennedy rejected two other Caterpillar arguments regarding the negative economic impact it said it faced due to an Oct. 1 deadline to meet new emissions standards and the strict monetary penalties that EPA is currently imposing on the nation’s heavy-duty diesel engine makers who fail to meet that deadline

Driving the issue is EPA’s 1997 diesel engine rule, which requires manufacturers to reducenitrogen oxides (NOx) and particulate matter by 2004. EPA in 1998 pulled forward the 2004 deadline for seven major heavy-duty engine companies -- to October 2002 -- through a consent decree agreement that federal and California air regulators at the time called the largest Clean Air Act enforcement action in history.

The consent decree stems from a suit filed by the governments charging the companies with selling approximately 1.3 million engines that had defeat devices. Despite intense Caterpillar lobbying before the Bush administration, EPA finished its work this summer on the monetary penalties for engines that missed the Oct. 1 deadline; it also issued conditional approval for all interested engine makers at the end of September

To this point, the engine companies have taken vastly different routes to achieve the terms of theconsent decree, with Cummins and Caterpillar the most public in their differences. Cummins spelled out its new Exhaust Gas Recirculation engine technology this spring and subsequently gained full EPA certification

Caterpillar has said it will pay the EPAnon-compliance penalties in order to roll out an even-cleaner engine by early 2003 that uses so-called Advanced Combustion Emission Reduction Technology. Caterpillar spokesman Carl Volz said the ACERT engines are expected online by 2003.

The two companies are sparring over the quality of emission reductions in the EGR technology.

Cummins officials say the defeat devices in its engines are triggered in less than 3 percent of the vehicle’s operation time, in high altitudes and in extreme temperatures. But Caterpillar’s Volz said his company considered using the same EGR technology last year but "abandoned" it after determining it would cause engine corrosion, lower fuel economy and consume an abundance of oil. Volz questioned whether EPA overlooked key information when it certified the Cummins engines to meet the 2.5 gram emission standard for NOx and non-methane hydrocarbon. He also said EPA and Cummins have not been forthcoming with specific data to show that EGRemissions do rise above the 1997-set threshold.

Rich Cassle, a senior attorney at the Natural Resources Defense Council, said Caterpillar’s legalchallenge is an attempt to deflect attention away from its own non-compliance with the consent decree. Cassle said the emission increases associated with Cummins’ defeat devices would be deminimus at best. "Rather than attacking Cummins for its certification strategy, Caterpillar should get its cleaner engines out on the road as soon as possible," Cassle said.

Asked about NRDC’s contention, Volz said the environmental group is contradicting itself by defending Cummins’ engines without having all the necessary data. "We would encourage NRDC to be consistent in its approach and oppose the use of unnecessary defeat devices," he said.