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From Products Liability Law Daily, September 30, 2015

Senate Commerce Committee demands answers from VW, EPA on emissions devices controversy

By Pamela C. Maloney, J.D.

House Energy and Commerce Committee leaders Fred Upton (R-Mich.), Chairman of the U.S. House of Representatives Committee on Energy and Commerce, and Ranking Member Frank Pallone, Jr. (ED-N.J.), have sent letters to Michael Horn, President and CEO of Volkswagen Group of America, Inc., and to Gina McCarthy, Administrator of the U.S. Environmental Protection Agency (EPA), informing them that the Committee and its Subcommittee on Oversight Investigations are looking into the facts and circumstances surrounding VW’s use of software in vehicle emissions control systems to affect Clean Air Act related compliance and emissions test results and asking both parties to provide full briefings to the committee staff on a variety of issues by October 13, 2015. Both EPA and VW have been asked to provide an initial briefing to committee staff by October 2, 2015.

Background. The letters were sent in response to EPA’s determination that VW manufactured and installed “defeat devices” in certain model year Volkswagen and Audi diesel passenger cars. These devices, which according to the EPA took the form of software, sensed when the vehicles were undergoing emissions testing and ensured that emissions control systems were operating to pass the tests. However, during normal vehicle use, the software would “switch” to a different mode that produced certain emissions alleged to be 10 to 40 times above EPA standards and in violation of the Clean Air Act [see Products Liability Law Daily’s September 18, 2015 analysis].

In a September 29, 2015 press release announcing the investigation and request for information, Committee Chairman Upton, along with Oversight and Investigations Subcommittee Chairman Tim Murphy (R-Pa.), said “It seems Volkswagen had a dirty little secret, and it’s not just consumers who are feeling betrayed. There are many unanswered questions and we will get the facts and the answers that the American people deserve.”

Representative Pallone and subcommittee Ranking Member Diana DeGette (D-Colo.) added, “The Clean Air Act has been put in place for very good reason—to protect the public health and keep Americans safe. It is the law of the land, and we must make sure that EPA has the tools necessary to enforce these policies and also detect any fraud that may be occurring. We will continue to investigate this deceptive activity on the part of Volkswagen to ensure that these blatant violations do not happen again and consumers can trust the products that they buy.”

EPA briefing request. EPA has been asked to address the following areas, among others:

  1. A detailed timeline of events and activity related to violations by VW as outlined in EPA’s September 18, 2015, Notice of Violation, including information as to (a) how and when the violations were discovered; (b) VW’s efforts to respond to EPA and the California Air Resources Board’s (CARB) requests to explain potential noncompliance with federal or state standards and emissions test requirements; (c) previous deliberations concerning any recalls and technical solutions initiated or considered to address EPA and CARB’s concerns prior to the notice of violation; and (d) current deliberations concerning recalls and technical solutions to address the violation.

  2. An overview of EPA’s process to recall vehicles found to be in violation of the Clean Air Act with respect to emissions control systems.

  3. EPA’s September 25, 2015, notice to manufacturers that the agency will be conducting additional evaluations designed to look for potential defeat devices.

VW briefing request. Among other information requested, Volkswagen has been asked to provide the following materials:

  1. All documents, including communications, relating to: (a) compliance with the Clean Air Act, EPA emissions standards and regulations, or testing of diesel emissions for all make and model year vehicles associated with the alleged violations; (b) EPA and CARB inquiries concerning potential noncompliance of any VW models with emissions standards or with EPA certificates of conformity applications; (c) VW’s efforts to respond to EPA and CARB requests to explain potential noncompliance with federal and state standards and emissions test requirements; (d) the development, testing, approval, and use of the software installed in the electronic control module of diesel model passenger vehicles that EPA alleges acts as a “defeat device.

  2. A detailed timeline of events and activity related to the alleged violation(s) outlined in EPA’s September 18 Notice of Violation.

State attorneys general investigations. In addition to the Congressional investigation into VW’s alleged use of these defeat devices, the Attorneys General of at least 28 states and the District of Columbia have announced participation in a joint consumer protection investigation into the auto manufacturer. States that have joined the investigation include: Alabama, Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington state.

Companies: Volkswagen of America, Inc.; Environmental Protection Agency

MainStory: TopStory MotorVehiclesNews MotorEquipmentNews

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