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EMA files court action over California engine reflash rule

29 March 2005

The Engine Manufacturers Association (EMA) has filed a court action challenging California’s mandatory software upgrade—so-called “chip reflash”—regulation in heavy-duty diesel engines. The mandatory chip reflash program is in conflict with legally binding settlement agreements between engine manufacturers and the California Air Resources Board (ARB), as well as a voluntary chip reflash agreement between manufacturers and the ARB, stated the EMA.

Under the mandatory software upgrade rule, adopted in December 2004, owners and operators of heavy-duty trucks, buses, and other vehicles that use model year 1993-1999 heavy-duty diesel engines will be required to have an upgraded version of software in their engine’s electronic control module (ECM), with the cost of the reflash to be covered by the engine manufacturer. The mandatory program replaces a voluntary agreement of March 2004, which was supported by engine manufacturers who agreed to cover the costs. However, the voluntary plan target of 35% reflashed engines by November 2004 has not been reached, prompting ARB to adopt the mandatory program.

Jed Mandel, EMA President stated “Engine manufacturers are parties to binding settlement agreements with ARB to develop and install retrofit kits to reduce NOx emissions from certain heavy-duty vehicles. The agreements require reprogramming the engine’s computer system at the time that the engine is rebuilt. Manufacturers have complied with all terms of the settlement agreements and have even agreed voluntarily to go beyond what was originally required and accelerate implementation of the emissions reductions. ARB, however, has decided unilaterally to impose an unauthorized regulatory mandate that changes the terms of the previously negotiated settlements. Through litigation, engine manufacturers are simply asking that ARB be held to its commitment to the original terms of the settlement agreements.” Mendel also said “It is important to note that all of the engines subject to ARB’s rule are certified by both ARB and EPA as fully compliant with applicable regulatory requirements. They were never subject to any recall action.”

Most of model year 1993-1999 heavy-duty engines in the USA used dual mapping software that switched to a more fuel efficient but higher NOx engine calibration during steady-state highway cruising. The EPA and the ARB have deemed this engine control strategy to be an illegal “emissions defeat device”. Under consent decrees signed in 1998 with the EPA/DOJ, manufacturers agreed to develop a low NOx software upgrade. However, the consent decrees require software upgrade only when the affected engines undergo major overhauls. Furthermore, vehicle operators have no economic incentive to do the chip reflash, as doing so results in deterioration of fuel economy. As a result, the progress of the software upgrade has been slower than anticipated by the regulators.

In a separate legal action, some individual engine manufacturers that are parties to the prior settlements with ARB also have filed suit based on the fact that the NOx reflash rule amounts to a breach of those legally binding settlement agreements, said EMA.

Source: EMA (press release | fact sheet)

California ARB Software Upgrade Page