Lawsuit Would Block 2007 Diesel Rule: Cummins

Diesel Fuel News, Oct 9, 2000 by Jack Peckham

If Congress fails to delay finalization of U.S. EPA's proposed 2006/7 heavy-duty highway diesel emissions standards this year (see related story, p1), then engine makers likely will be forced to tie them up in court, Cummins predicts in comments to U.S. EPA.

No complete, commercial or even laboratory system exists today that is proven to meet EPA's proposed 97% cut in heavy-duty diesel exhaust nitrogen oxides (NOx) and the 90% cut in particulate matter (PM), if using EPA's new combined test cycles, "not-to-exceed" limits and supplemental test standards, let alone meet EPA's mandatory 435,000 mile durability.

Nor has any combined NOx/PM control system been proven commercially to tolerate the 15 ppm fuel sulfur cap EPA proposes, let alone lube oil sulfur effects, Cummins points out.

* Economic Hurdle: Who Will Buy?

Perhaps just as threatening, no system has been demonstrated that might overcome big economic hurdles facing buyers of "clean" 2007 heavy-duty engines, compared to relatively cheap rebuilds of their old engines.

It's theoretically possible that some new, heavy-duty combined catalyst system might be demonstrated in the next year or two, after which EPA might confirm or adjust diesel emissions limits with some degree of technical confidence following a "technology review" around 2002.

Problem: the Clean Air Act requires that industries facing what today appear to be dubious or near-impossible technical challenges must sue EPA within 60 days of a final rule, rather than allowing industry the luxury of awaiting two (or more) years for the outcome of a "technical review."

'Failed' Technology Reviews

"Technology reviews have failed utterly in the recent past" and "serve to heighten the ambiguity" of whether EPA standards can be achieved, Cummins tells EPA in comments on the proposed diesel rule.

As a result, EPA's proposed rule, if finalized this year, "will force aggrieved parties to litigate these issues notwithstanding some possibility of a future change following a technical review," Cummins says.

As evidence, Cummins calls EPA's 1999 mid-course review of the 2002/2004 heavy-duty emissions standards a flop.

* EPA Misses Deadlines

EPA missed its deadline by a year and put in several new, complex requirements missing from the original rule, promulgated in 1995. As a result, "it is clear that the 1999 technical review was a failure and will now be a direct cause of millions of dollars of wasted legal costs to the taxpayers and to the industry," Cummins says.

For the 2007 standards, industry has "incredibly huge technical issues that will be left open for such a technical review," including whether urea-SCR or NOx adsorbers are the logical choice for NOx control, and whether they can hit EPA's targets, Cummins says.

Perhaps most ominous for both engine and oil industries is this question: "Is a 15 ppm sulfur cap adequate to enable the requisite technologies?" Cummins asks.

U.S. refiners are unlikely to pour billions of dollars into diesel desulfurization projects until engine makers demonstrate technical feasibility for EPA combined NOx/PM limits with the target fuel, and show some reasonable prospect of selling that technology at a price affordable to customers, this analysis suggests.

* Refiner Uncertainty

What's more, given refiner uncertainty on engine emissions feasibility, EPA cannot be sure that enough ultra-low-sulfur diesel (ULSD) will be available for the market by 2007.

"EPA can only realize the environmental benefits of its proposed regulations by mandating the availability of low-sulfur fuel ... Simply allowing the market place to dictate the possible availability of low sulfur fuel further undercuts the technological feasibility of the proposal," Cummins says.

However, even EPA can't force refiners to make ULSD or all retailers to offer it (except in the unlikely event that a repressive government tries to nationalize the oil industry). If ULSD is seen as uneconomic, a number of refineries and retailers may walk away from the highway diesel market.