throbber
Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 1 of 24 PageID: 1
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`TODD KIM
`Assistant Attorney General
`Environment & Natural Resources Division
`United States Department of Justice
`DAVIS H. FORSYTHE
`Colorado Bar No. 51737
`DEBORAH A. GITIN
`California Bar No. 284947
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`999 18th Street, South Terrace – Suite 370
`Denver, CO 80202
`Phone: (303) 844-1391
`E-mail: davis.forsythe@usdoj.gov
`
`RACHAEL A. HONIG
`Acting United States Attorney
`ALEX D. SILAGI
`Assistant United States Attorney
`District of New Jersey
`970 Broad Street, Suite 700
`Newark, NJ 07102
`Phone: (973) 353-6001
`E-mail: alex.silagi@usdoj.gov
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`Attorneys for Plaintiff United States of America
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`_________________________________________
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`XTREME DIESEL PERFORMANCE, LLC,
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`Defendant.
`_________________________________________)
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`Case No.
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`COMPLAINT
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`The United States of America (“United States”), by authority of the Attorney
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`General of the United States and at the request of the Administrator of the United
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`States Environmental Protection Agency (“EPA”), files this Complaint and alleges
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`as follows:
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`I.
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought under Sections 203 and 205 of the Clean
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`Air Act (“CAA”), 42 U.S.C. §§ 7522 & 7524, seeking assessment of civil penalties
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`against Xtreme Diesel Performance, LLC (“Defendant”), with its principal place of
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`business at 1758 State Route 34, Wall Township, New Jersey 07727, for violations
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`of the CAA related to Defendant’s manufacture and sale of aftermarket products
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`that bypass, defeat, or render inoperative emission controls installed on motor
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`vehicles or motor vehicle engines, in violation of the CAA.
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`
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`II.
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`JURISDICTION
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`2.
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`This Court has jurisdiction over the subject matter of and the parties to
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`this action pursuant to Section 205 of the CAA, 42 U.S.C. § 7524, and 28 U.S.C.
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`§§ 1331 (Federal Question), 1345 (United States as Plaintiff), and 1355 (Fine,
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`Penalty, or Forfeiture).
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`3.
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`Venue is proper in the District of New Jersey pursuant to 28 U.S.C.
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`§§ 1391(b)(2), 1391(c)(2), and 1395(a), as well as Section 205 of the CAA,
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`42 U.S.C. § 7524, because it is a judicial district in which Defendant is located, is
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`doing business, or in which a substantial part of the alleged violations in the
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`Complaint occurred.
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`III.
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`DEFENDANT
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`4.
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`Defendant is a limited liability corporation with its registered office at
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`1758 State Route 34, Wall Township, New Jersey 07727.
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`5.
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`Defendant manufactures, sells, and offers for sale aftermarket
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`products that are designed to enhance the power, performance, or fuel economy of
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`diesel-powered motor vehicles.
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`6.
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`Defendant has a sales and distribution center at 5550 Cameron Street,
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`Suite J-K, Las Vegas, Nevada 89118.
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`
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`IV.
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`BACKGROUND
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`7.
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`This action arises under Title II of the CAA, as amended, 42 U.S.C.
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`§§ 7521-7590, and the regulations promulgated thereunder relating to the control
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`of emissions of air pollution from motor vehicles and motor vehicle engines.
`
`A.
`8.
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`Statutory and Regulatory Objectives
`In creating the CAA, Congress found that “the increasing use of motor
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`vehicles . . . has resulted in mounting dangers to the public health and
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`welfare . . . .” 42 U.S.C. § 7401(a)(2). Congress’s purposes in creating the CAA
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`were “to protect and enhance the quality of the Nation’s air resources so as to
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`promote the public health and welfare and the productive capacity of its
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`population,” and “to initiate and accelerate a national research and development
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`program to achieve the prevention and control of air pollution.” 42 U.S.C.
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`§ 7401(b)(1)–(2).
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`9.
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`“Motor vehicle” is defined in the CAA as “any self-propelled vehicle
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`designed for transporting persons or property on a street or highway.” 42 U.S.C.
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`§ 7550(2); 40 C.F.R. § 85.1703.
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`10. Title II of the CAA and the regulations promulgated thereunder
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`establish standards for the emissions of air pollutants from motor vehicles and
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`motor vehicle engines that “cause, or contribute to, air pollution which may
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`reasonably be anticipated to endanger public health or welfare.” 42 U.S.C.
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`§ 7521(a)(1). These pollutants include nitrogen oxides (“NOx”), particulate matter
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`(“PM”), non-methane hydrocarbons (“NMHCs”), and carbon monoxide (“CO”).
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`42 U.S.C. § 7521(a)(3)(A).
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`11. EPA has also established National Ambient Air Quality Standards for
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`certain pollutants, including ozone, NOx, PM, and CO. See 40 C.F.R. §§ 50.1–
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`50.19.
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`12. Ozone is a highly reactive gas that is formed in the atmosphere from
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`other pollutants, including pollutants emitted from motor vehicles.
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`13. PM is a form of air pollution composed of microscopic solids and
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`liquids suspended in air. PM is emitted directly from motor vehicles and is also
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`formed in the atmosphere from other pollutants, including pollutants emitted from
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`motor vehicles.
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`14. NOx and NMHCs are reactive gases that contribute to the formation of
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`PM and ozone.
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`15. Exposure to ozone and PM is linked to respiratory and cardiovascular
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`health problems as well as premature death. Children, older adults, people who are
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`active outdoors (including outdoor workers), and people with heart or lung disease
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`are particularly at risk for health effects related to ozone or PM exposure.
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`16. CO is a highly toxic gas that forms when the carbon in fuel does not
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`burn completely. CO is harmful to human health because it reduces oxygen
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`delivery to the body’s organs and tissues. CO can cause headaches, dizziness,
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`vomiting, nausea, loss of consciousness, and death. Long-term exposure to CO has
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`been associated with an increased risk of heart disease.
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`B. Acts Prohibited by Section 203(a)(3)(B) of the Clean Air Act
`17. Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B),
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`prohibits
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`any person to manufacture or sell, or offer to sell, or install, any part or
`component intended for use with, or as a part of, any motor vehicle or motor
`vehicle engine, where a principal effect of the part or component is to
`bypass, defeat, or render inoperative any device or element of design
`installed on or in a motor vehicle or motor vehicle engine in compliance
`with regulations under this subchapter, and where the person knows or
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`should know that such part or component is being offered for sale or
`installed for such use or put to such use.
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`42 U.S.C. § 7522(a)(3)(B). This is generally known as the “defeat device
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`prohibition.”
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`18. Any person violating Section 203(a)(3)(B) of the CAA, 42 U.S.C.
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`§ 7522(a)(3)(B), is subject to civil penalties of up to $3,750 for each violation
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`occurring on or after January 13, 2009, through November 2, 2015, and up to
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`$4,876 for each violation occurring after November 2, 2015, and assessed on or
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`after December 23, 2020, in accordance with Section 205(a) of the CAA. 42
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`U.S.C. § 7524(a) as modified by 40 C.F.R. § 19.4 (2020); 85 Fed. Reg. 83818,
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`83820 (Dec. 23, 2020).
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`19. Each part or component manufactured, sold, offered for sale, or
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`installed in violation of Section 203(a)(3)(B) of the CAA, 42 U.S.C.
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`§ 7522(a)(3)(B), is a separate violation. 42 U.S.C. § 7524(a).
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`C. EPA’s Certificate of Conformity Program for New Motor
`Vehicles and Motor Vehicle Engines
`20. Manufacturers of new motor vehicles or motor vehicle engines must
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`apply for and obtain a certificate of conformity from EPA to sell, offer to sell, or
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`introduce or deliver for introduction into commerce any new motor vehicle or
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`motor vehicle engine in the United States. 42 U.S.C. § 7522(a)(1).
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`21. To obtain a certificate of conformity, the original equipment
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`manufacturer (“OEM”) must demonstrate that the motor vehicle or motor vehicle
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`engine will conform to established emissions standards for NOx, PM, NMHCs,
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`CO, and other pollutants during the motor vehicle or motor vehicle engine’s useful
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`life. 42 U.S.C. § 7525(a)(2); see 40 C.F.R. §§ 86.007-30(a)(1)(i),
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`86.1848-01(a)(1).
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`22. The certificate of conformity application must include a description of
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`the vehicle’s “emission control system, and fuel system components.” 40 C.F.R.
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`§ 86.094-21(b)(1); see also 40 C.F.R. § 86.1844-01(d)–(e).
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`23. Once issued by EPA, a certificate of conformity covers only those
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`new motor vehicles or motor vehicle engines that conform in all material respects
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`to the specifications provided to EPA in the certificate of conformity application
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`for such vehicles or engines. 40 C.F.R. § 86.1848-01(c)(6).
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`D. Emissions-Related Elements of Design
`24. An “element of design” is “any control system (i.e., computer
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`software, electronic control system, emission control system, computer logic),
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`and/or control system calibrations, and/or the results of systems interaction, and/or
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`hardware items on a motor vehicle or motor vehicle engine.” 40 C.F.R. § 86.1803-
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`01 (General Compliance Provisions for Control of Air Pollution from New and In-
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`Use Light-Duty Vehicles, Light-Duty Trucks, and Heavy-Duty Vehicles).
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`25. An “emission control system” is a “unique group of emission control
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`devices, auxiliary emission control devices, engine modifications and strategies,
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`and other elements of design designated by the Administrator [of EPA] used to
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`control exhaust emissions of a vehicle.” Id.
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`26. OEMs install a variety of software and hardware elements of design in
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`motor vehicles and motor vehicle engines to monitor and control emissions of
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`pollutants in order to comply with the CAA and regulations promulgated
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`thereunder. These elements of design, which collectively make up the emission
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`control system, are referred to in this Complaint as “Emissions-Related Elements
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`of Design.”
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`27. Modern motor vehicles are equipped with Electronic Control Units
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`(“ECUs”), which are on-board computer systems that run the software that
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`monitors and controls vehicle operations, including the operation of Emissions-
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`Related Elements of Design. Emissions-Related Elements of Design generally
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`include both the specific hardware described below, and the ECU or ECUs and
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`software that control operation of that hardware.
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`i.
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`Systems that Re-Route Gases and Vapors
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`28. OEMs install hardware and associated operational software to re-route
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`gases and vapors containing pollutants back to the engine in order to reduce
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`emissions. These include:
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`29. Exhaust Gas Recirculation System (“EGR System”). Diesel engines
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`produce high combustion temperatures that result in the production of NOx. An
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`Exhaust Gas Recirculation System (“EGR System”) reduces NOx emissions by
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`recirculating a portion of engine exhaust gas back through the engine’s cylinders,
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`thereby lowering the combustion temperature and reducing NOx production. The
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`EGR System is an Emissions-Related Element of Design, and is a “device or
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`element of design installed on or in a motor vehicle or motor vehicle engine in
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`compliance with [CAA] regulations” within the meaning of Section 203(a)(3)(B)
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`of the CAA, 42 U.S.C. § 7522 (a)(3)(B).
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`ii.
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`Aftertreatment Systems
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`30.
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`“Aftertreatment” means any “system, component, or technology
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`mounted downstream of the exhaust valve . . . whose design function is to reduce
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`emissions in the engine exhaust before it is exhausted to the environment.” 40
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`C.F.R. § 1068.30.
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`31. Aftertreatment systems consist of hardware installed in the stock
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`exhaust system, as well as software that runs on one or more ECUs and directs
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`operation of the hardware components. Diesel Particulate Filters (“DPFs”), Diesel
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`Oxidation Catalysts (“DOCs”), Selective Catalytic Reduction (“SCR”) Systems,
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`and NOx Adsorber Catalysts (“NACs”) are Aftertreatment systems that can be used
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`alone, or in combination with each other or with other Emissions-Related Elements
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`of Design, to control the emission of pollutants.
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`32. Diesel Particulate Filter (“DPF”). A Diesel Particulate Filter (“DPF”)
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`is a filter that captures soot from engine exhaust, thereby decreasing PM emissions.
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`By design, soot that collects in the DPF is periodically burned off by elevated
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`exhaust temperatures in a process referred to as active or passive regeneration.
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`The DPF is a “device or element of design installed on or in a motor vehicle or
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`motor vehicle engine in compliance with [CAA] regulations” within the meaning
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`of Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), and also an
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`Emissions-Related Element of Design.
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`33. Diesel Oxidation Catalyst (“DOC”). A Diesel Oxidation Catalyst
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`(“DOC”) is a precious-metal coated, flow-through honeycomb structure. As
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`exhaust gas passes through the DOC, the coating of precious metal causes a
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`catalytic reaction that breaks down CO and NMHCs in the exhaust into their less
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`harmful components. The DOC is a “device or element of design installed on or in
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`a motor vehicle or motor vehicle engine in compliance with [CAA] regulations”
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`within the meaning of Section 203(a)(3)(B) of the CAA, 42 U.S.C.
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`§ 7522(a)(3)(B), and also an Emissions-Related Element of Design.
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`34. Selective Catalytic Reduction (“SCR”). A Selective Catalytic
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`Reduction (“SCR”) system (a/k/a “catalytic converter or “catalyst”) reduces NOx
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`emissions by chemically converting exhaust gas that contains NOx into nitrogen
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`and water through the injection of diesel exhaust fluid, typically composed of urea.
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`The SCR is a “device or element of design installed on or in a motor vehicle or
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`motor vehicle engine in compliance with [CAA] regulations” within the meaning
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`of Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), and also an
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`Emissions-Related Element of Design.
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`35. NOx Adsorber Catalyst (“NAC”). A NOx Adsorber Catalyst (“NAC”)
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`(a/k/a “NOx trap”) reduces NOx emissions by chemically adsorbing NOx from
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`exhaust gas. The NAC is a “device or element of design installed on or in a motor
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`vehicle or motor vehicle engine in compliance with [CAA] regulations” within the
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`meaning of Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), and also
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`an Emissions-Related Element of Design.
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`iii. Onboard Diagnostics System (“OBD”)
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`36. The CAA requires OEMs to install an On-Board Diagnostics system
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`(“OBD”) on motor vehicles. 42 U.S.C. § 7521(m). The OBD monitors, detects,
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`reports, and records malfunctions of monitored Emissions-Related Elements of
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`Design and other components through a network of sensors installed throughout
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`the motor vehicle and motor vehicle engine. 40 C.F.R. §§ 86.007-17, 86.010-18,
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`86.1806-05. The OBD monitors sensor inputs for malfunction or deterioration that
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`could cause a vehicle to fail to comply with CAA emission standards.
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`37. CAA regulations require that when the OBD detects a malfunction of
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`an emissions-related system or component, it must illuminate the vehicle’s
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`malfunction indicator light (a/k/a “check engine light”) on the dashboard. See 40
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`C.F.R. § 86.1806-05(b)-(d).
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`38. CAA regulations require that once the malfunction indicator light has
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`been illuminated, the OBD must record a diagnostic trouble code. 40 C.F.R.
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`§ 86.1806-05(e). The OBD stores diagnostic trouble codes that service personnel
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`can read in order to diagnose and repair a vehicle, and that government inspectors
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`can download to verify a vehicle’s compliance with emissions standards.
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`39. The OBD may also prompt a driver to correct a problem by altering
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`vehicle performance, such as by putting the vehicle into “limp-home mode.” In
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`limp-home mode, the ECU significantly downgrades engine performance to alert
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`the driver that there is a problem with the emission control system, permitting the
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`vehicle to be driven (albeit slowly) to a service station for repair.
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`40. The OBD is a “device or element of design installed on or in a motor
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`vehicle or motor vehicle engine in compliance with [CAA] regulations” within the
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`meaning of Section 203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), and also
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`an Emissions-Related Element of Design.
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`iv. Certified Stock Calibrations
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`41. OEMs install a suite of pre-set software calibrations for operational
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`parameters (“Certified Stock Calibrations”); these calibrations control all aspects
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`of vehicle and engine operation including combustion, performance, and operation
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`of EGR and Aftertreatment systems. The Certified Stock Calibrations for a
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`particular engine or vehicle operate together to control the formation and emission
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`of pollutants. OEMs program the ECUs with Certified Stock Calibrations and
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`disclose them to EPA on their application for a certificate of conformity for each
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`vehicle model, because the Certified Stock Calibrations are an important part of a
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`motor vehicle’s overall emissions control strategy.
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`42. The types of Certified Stock Calibrations relevant to this Complaint
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`include but are not limited to:
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`calibrations that affect the operation of the EGR System;
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`calibrations that affect the operation of Aftertreatment systems
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`(the DPF, DOC, SCR, or NAC);
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`calibrations that affect engine combustion, performance, and
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`operation (e.g., air-fuel ratio, fuel injection timing, fuel quantity, fuel injection
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`pressure, and fuel injection pulse width), which are critical elements of the OEM’s
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`strategy to control the formation of pollutants in the engine; and
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`calibrations that affect OBD detection, warning and recording
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`of malfunctions.
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`43. Each of the above-listed types of Certified Stock Calibration is an
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`“element of design installed on or in a motor vehicle or motor vehicle engine in
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`compliance with [CAA] regulations” within the meaning of Section 203(a)(3)(B)
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`of the CAA, 42 U.S.C. § 7522(a)(3)(B), and also an Emissions-Related Element of
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`Design.
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`E. Aftermarket Products that Bypass, Defeat, or Render Inoperative
`Emissions-Related Elements of Design
`44. Third parties, including Defendant, manufacture, sell, and offer for
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`sale products for use with existing motor vehicles that are designed to enhance the
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`vehicle’s power, performance, or fuel economy. In some cases, these products
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`achieve their purpose through a design that bypasses, defeats, or renders
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`inoperative OEM-installed Emissions-Related Elements of Design. These products
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`fall into two broad categories: hardware and software.
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`i.
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`Aftermarket Hardware Products
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`45. Some aftermarket products are designed to physically interfere with,
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`or remove, Emissions-Related Elements of Design through the addition of new or
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`replacement hardware to a motor vehicle. The following types of aftermarket
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`hardware products are relevant to this Complaint:
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`
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`EGR Delete Hardware Products. Some aftermarket hardware
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`products interfere with or remove (“delete”) the EGR System. Examples of such
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`products include “blocker plates,” “EGR valve deletes,” and “EGR cooler deletes.”
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`These products are collectively referred to in this Complaint as “EGR Delete
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`Hardware Products.”
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`
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`Aftertreatment Delete Hardware Products. Some aftermarket
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`hardware products physically alter or remove some or all of a vehicle’s
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`Aftertreatment systems by changing, removing, or replacing essential physical
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`elements of the DPF, DOC, SCR, or NAC. This often involves removing the
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`vehicle’s entire exhaust system, in which the Aftertreatment systems are installed,
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`and installing a replacement with no Aftertreatment. Examples include “straight
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`pipes” and “race pipes.” These products are collectively referred to in this
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`Complaint as “Aftertreatment Delete Hardware Products.”
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`ii.
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`Aftermarket Software Products (a/k/a “Tunes”)
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`46. Other aftermarket products consist of software that is uploaded into a
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`motor vehicle’s ECUs and alters or overwrites the vehicle’s Certified Stock
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`Calibrations. An individual piece of such software is commonly referred to as a
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`“Tune,” derived from its intended purpose of “tuning” the vehicle’s performance.
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`47. The following general categories of Tunes modify or replace Certified
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`Stock Calibrations in ways relevant to this Complaint:
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`Tunes that modify or replace Certified Stock Calibrations
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`relating to the EGR System, as well as signals or records related to the EGR
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`System.
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`Tunes that modify or replace Certified Stock Calibrations
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`relating to Aftertreatment systems: the DPF, DOC, SCR, or NAC, as well as
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`signals or records related to these systems.
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`
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`Tunes that modify or replace Certified Stock Calibrations
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`related to engine combustion, performance, and operation (e.g., air-fuel ratio, fuel
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`injection timing, fuel quantity, fuel injection pressure, and fuel injection pulse
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`width).
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`Tunes that modify or replace Certified Stock Calibrations
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`related to OBD functions in order to prevent the generation of diagnostic trouble
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`codes, prevent the malfunction indicator light from illuminating, and prevent the
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`OBD from putting the vehicle into “limp-home mode” due to changes in Certified
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`Stock Calibrations or removal of the EGR System or Aftertreatment systems.
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`48. A single Tune can change or overwrite multiple types of Certified
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`Stock Calibrations. For example, a Tune that deletes EGR System functions will
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`also typically modify OBD functions so that the EGR System deletion will not be
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`detected.
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`49. Multiple Tunes are often bundled together and sold as a single
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`product.
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`50. Products that include Tunes that bypass, defeat, or render inoperative
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`Emissions-Related Elements of Design are collectively referred to in this
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`Complaint as “Defeat Tune Products.”
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`
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`V. GENERAL ALLEGATIONS
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`51. Defendant is a “person” within the meaning of the CAA. 42 U.S.C.
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`§ 7602(e).
`
`52. Defendant manufactures, sells, and offers to sell products intended for
`
`use in “motor vehicles” as that term is defined by the CAA, 42 U.S.C. § 7550(2),
`
`and regulations promulgated thereunder at 40 C.F.R. § 85.1703.
`
`53. Defendant sells and offers to sell these products over the internet
`
`through its website and through sales to other retailers that then market the
`
`products to consumers.
`
`54. As described below, Defendant has manufactured, sold, and offered
`
`for sale products with a principal effect of bypassing, defeating, or rendering
`
`inoperative an element of design, including but not limited to the Emissions-
`
`Related Elements of Design described in Paragraphs 24-43 above, installed in or
`
`on a motor vehicle or motor vehicle engine in compliance with Subchapter II of the
`
`Clean Air Act.
`
`16
`
`

`

`Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 18 of 24 PageID: 18
`
`VI. FIRST CLAIM FOR RELIEF
`Manufacture, Sale, or Offer for Sale of EGR Delete Hardware Products
`in Violation of Section 203(a)(3)(B) of the Clean Air Act
`
`55. The United States re-alleges Paragraphs 1-54 above as if fully set
`
`forth herein.
`
`56. Between January 1, 2015, and May 31, 2017, and upon information
`
`and belief continuing until at least 2019, Defendant manufactured, sold, or offered
`
`for sale numerous EGR Delete Hardware Products.
`
`57. The EGR Delete Hardware Products manufactured, sold, or offered
`
`for sale by Defendant include blocker plates, EGR valve deletes, EGR cooler
`
`deletes, and other hardware that interferes with the recirculation of exhaust gas
`
`back into the engine combustion chamber.
`
`58. Each EGR Delete Hardware Product that Defendant manufactured,
`
`sold, or offered for sale is, and at all relevant times was, intended for use with
`
`certified motor vehicles and motor vehicle engines, including Powerstroke engines
`
`in Ford vehicles, Duramax engines in GM vehicles, and Cummins engines in
`
`Dodge vehicles.
`
`59. A principal effect of each EGR Delete Hardware Product that
`
`Defendant manufactured, sold, or offered for sale is, and at all relevant times was,
`
`to bypass, defeat, or render inoperative a motor vehicle’s EGR System.
`
`17
`
`

`

`Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 19 of 24 PageID: 19
`
`60. Defendant knew or should have known that each EGR Delete
`
`Hardware Product it manufactured, sold, or offered for sale was being offered for
`
`sale or installed for such use or put to such use.
`
`61. Each unit of each EGR Delete Hardware Product that Defendant
`
`manufactured, sold, or offered for sale, is a separate violation of Section
`
`203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B). 42 U.S.C. § 7524(a).
`
`62. Defendant is liable to the United States for civil penalties of up to
`
`$3,750 for each violation of Section 203(a)(3)(B) described in Paragraphs 56-61
`
`occurring on or after January 13, 2009, through November 2, 2015, and civil
`
`penalties of up to $4,876 for each violation occurring after November 2, 2015, and
`
`assessed on or after December 23, 2020, in accordance with Section 205(a) of the
`
`CAA. 42 U.S.C. § 7524(a) as modified by 40 C.F.R. § 19.4 (2020); 85 Fed. Reg.
`
`83818, 83820 (Dec. 23, 2020).
`
`VII. SECOND CLAIM FOR RELIEF
`Sale or Offer for Sale of Aftertreatment Delete Hardware Products
`in Violation of Section 203(a)(3)(B) of the Clean Air Act
`
`63. The United States re-alleges Paragraphs 1-54 above as if fully set
`
`
`
`forth herein.
`
`64. Between January 1, 2015, and May 31, 2017, and upon information
`
`and belief continuing until at least 2019, Defendant sold or offered for sale
`
`numerous Aftertreatment Delete Hardware Products.
`
`18
`
`

`

`Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 20 of 24 PageID: 20
`
`65. The Aftertreatment Delete Hardware Products that Defendant sold or
`
`offered for sale are, and at all relevant times were, intended for use with certified
`
`motor vehicles and motor vehicle engines, including Powerstroke engines in Ford
`
`vehicles, Duramax engines in GM vehicles, and Cummins engines in Dodge
`
`vehicles.
`
`66. A principal effect of each Aftertreatment Delete Hardware Product
`
`that Defendant sold or offered for sale is, and at all relevant times was, to bypass,
`
`defeat, or render inoperative a motor vehicle’s DPF, DOC, SCR, or NAC (i.e.,
`
`some or all of the vehicle’s Aftertreatment systems).
`
`67. Defendant knew or should have known that each Aftertreatment
`
`Delete Hardware Product it sold or offered for sale was being offered for sale or
`
`installed for such use or put to such use.
`
`68. Each unit of each Aftertreatment Delete Hardware Product that
`
`Defendant sold or offered for sale is a separate violation of Section 203(a)(3)(B) of
`
`the CAA, 42 U.S.C. § 7522(a)(3)(B). 42 U.S.C. § 7524(a).
`
`69. Defendant is liable to the United States for civil penalties of up to
`
`$3,750 for each violation of Section 203(a)(3)(B) described in Paragraphs 64-68
`
`above occurring on or after January 13, 2009, through November 2, 2015, and up
`
`to $4,876 for each violation occurring after November 2, 2015, and assessed on or
`
`after December 23, 2020, in accordance with Section 205(a) of the CAA. 42
`
`19
`
`

`

`Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 21 of 24 PageID: 21
`
`U.S.C. § 7524(a) as modified by 40 C.F.R. § 19.4 (2020); 85 Fed. Reg. 83818,
`
`83820 (Dec. 23, 2020).
`
`VIII. THIRD CLAIM FOR RELIEF
`Sale or Offer for Sale of Tunes that Bypass, Defeat, or Render
`Inoperative Emissions-Related Elements of Design in Violation of
`Section 203(a)(3)(B) of the Clean Air Act
`
`70. The United States re-alleges Paragraphs 1-54 above as if fully set
`
`forth herein.
`
`71. Between January 1, 2015, and May 31, 2017, and upon information
`
`and belief continuing until at least 2019, Defendant sold or offered for sale
`
`numerous Defeat Tune Products.
`
`72. The Defeat Tune Products that Defendant sold or offered for sale
`
`change or overwrite one or more of the following types of Certified Stock
`
`Calibrations:
`
`
`
`Certified Stock Calibrations relating to the EGR System, as
`
`well as signals or records related to the EGR System.
`
`
`
`Certified Stock Calibrations relating to Aftertreatment systems:
`
`the DPF, DOC, SCR, or NAC, as well as signals or records related to these
`
`systems.
`
`
`
`Certified Stock Calibrations related to engine combustion,
`
`performance and operation such as air-fuel ratio, fuel injection timing, fuel
`
`quantity, fuel injection pressure, and fuel injection pulse width.
`
`20
`
`

`

`Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 22 of 24 PageID: 22
`
`
`
`Certified Stock Calibrations related to OBD functions in order
`
`to prevent the generation of diagnostic trouble codes, prevent the malfunction
`
`indicator light from illuminating, and prevent the OBD from putting the vehicle
`
`into “limp-home mode” due to changes in Certified Stock Calibrations or removal
`
`of the EGR System or Aftertreatment systems.
`
`73. The Defeat Tune Products that Defendant sold or offered for sale are
`
`intended for use with certified motor vehicles and motor vehicle engines, including
`
`Powerstroke engines in Ford vehicles, Duramax engines in GM vehicles, and
`
`Cummins engines in Dodge vehicles.
`
`74. A principal effect of each Defeat Tune Product that Defendant sold or
`
`offered for sale is, and at all relevant times was, to bypass, defeat, or render
`
`inoperable one or more Emissions-Related Elements of Design by modifying or
`
`overwriting a motor vehicle’s Certified Stock Calibrations relating to one or more
`
`of the following:
`
`
`
`
`
`
`
`the EGR System;
`
`the Aftertreatment systems (the DPF, DOC, SCR, or NAC);
`
`engine combustion, performance, and operation (e.g., air-fuel
`
`ratio, fuel injection timing, fuel quantity, fuel injection pressure, and fuel injection
`
`pulse width); and
`
`
`
`OBD system functions.
`
`21
`
`

`

`Case 3:21-cv-16968-ZNQ-LHG Document 1 Filed 09/15/21 Page 23 of 24 PageID: 23
`
`75. Defendant knew or should have known that each Defeat Tune Product
`
`it sold or offered for sale was being offered for sale or installed for such use or put
`
`to such use.
`
`76. Each unit of each Defeat Tune Product that Defendant sold or offered
`
`for sale is a separate violation of Section 203(a)(3)(B) of the CAA, 42 U.S.C.
`
`§ 7522(a)(3)(B). 42 U.S.C. § 7524(a).
`
`77. Defendant is liable to the United States for civil penalties of up to
`
`$3,750 for each violation of Section 203(a)(3)(B) described in Paragraphs 71-76
`
`above occurring on or after January 13, 2009, through November 2, 2015, and civil
`
`penalties of and up to $4,876 for each violation occurring after November 2, 2015,
`
`and assessed on or after December 23, 2020, in accordance with Section 205(a) of
`
`the CAA. 42 U.S.C. § 7524(a) as modified by 40 C.F.R. § 19.4 (2020); 85 Fed.
`
`Reg. 83818, 83820 (Dec. 23, 2020).
`
`
`
`IX. RELIEF REQUESTED
`
`WHEREFORE, the United States respectfully requests that this Court:
`
`1.
`
`Assess civil penalties against Defendant for each violation of Section
`
`203(a)(3)(B) of the CAA, 42 U.S.C. § 7522(a)(3)(B), in the amount of up to
`
`$3,750 for each violation occurrin

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