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From Products Liability Law Daily, September 18, 2015

EPA, California accuse Volkswagen of violating Clean Air Act with ‘defeat devices’

By John Dumoulin

The United States Environmental Protection Agency (EPA) is issuing a notice of violation (NOV) of the Clean Air Act to Volkswagen AG, Audi AG, and Volkswagen Group of America, Inc. (collectively, “Volkswagen”), for allegedly installing software in four-cylinder Volkswagen and Audi diesel cars from model years 2009-2015 that circumvents EPA emissions standards for certain air pollutants, according to an agency press release. In addition, California is issuing an In-Use Compliance letter to Volkswagen, and the EPA and the California Air Resources Board have both initiated investigations based on Volkswagen’s alleged actions. The EPA said that Volkswagen may be liable for civil penalties and injunctive relief for the violations alleged in the NOV (EPA Press Release, September 18, 2015).

Vehicle software. According to the EPA’s release, the vehicles in question have a sophisticated software algorithm that detects when the car is undergoing official emissions testing and turns full emissions controls on only during the test, so that these vehicles meet emissions standards in the laboratory or testing station but during normal operation emit nitrogen oxides at up to 40 times the standard.

Clean Air Act violations. According to the EPA, the software in the Volkswagen and Audi vehicles is a “defeat device” as defined by the Clean Air Act. Defeat devices reduce the effectiveness of the emission control system during normal driving conditions. The Clean Air Act requires vehicle manufacturers to certify to the EPA that their products will meet applicable federal emission standards to control air pollution, and every vehicle sold in the United States must be covered by an EPA-issued certificate of conformity. The agency said that motor vehicles with defeat devices cannot be certified and that by making and selling vehicles with defeat devices that allowed for higher levels of air emissions than were certified to the EPA, Volkswagen violated two important provisions of the Clean Air Act.

Health risks. The EPA’s release described some of the health risks associated with excessive nitrogen oxide emissions, saying that such pollution contributes to nitrogen dioxide, ground-level ozone, and fine particulate matter. The EPA said that exposure to these pollutants has been linked with a range of serious health effects, including increased asthma attacks and other respiratory illnesses that can be serious enough to send people to the hospital. In addition, the release said that exposure to ozone and particulate matter has also been associated with premature death due to respiratory-related or cardiovascular-related effects. Children, the elderly, and people with pre-existing respiratory disease are particularly at risk for health effects of these pollutants, according to the EPA.

Affected vehicles. The allegations cover roughly 482,000 diesel passenger cars sold in the United States since 2008. The EPA’s press release contains a list of the affected models. The EPA said that these vehicles remain legal and safe to drive and resell, despite their excessive emissions, and that owners do not need to take any action at this time. The agency also indicated that it expects Volkswagen to initiate the process that will fix the cars’ emissions systems.

Companies: Volkswagen AG; Audi AG; and Volkswagen Group of America, Inc.

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