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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. )

)

Civil Action No. 15-cv-429 (TSC)

MTU AMERICA INC., )

)

Defendant. )

)

MEMORANDUM OPINION

Before the court is the United States’ unopposed motion to enter a consent decree. 

Having reviewed the complaint, proposed consent decree, and the motion, the court finds that the 

agreement is fair, adequate, reasonable, appropriate, and serves the public interest. Therefore, 

the motion is granted and the court will enter the consent decree.

I. BACKGROUND

This case arises from alleged violations of the Clean Air Act (“CAA”) by defendant

MTU America, Inc. (“MTU”). The United States, on behalf of the United States Environmental 

Protection Agency (“EPA”), seeks monetary penalties and injunctive relief against MTU for 

allegedly falsifying emissions tests and unlawfully selling 895 non-road and marine 

compression-ignition engines (the “Subject Engines”).

The alleged violations occurred as a result of actions taken by MTU while it was 

completing an emissions test necessary to acquire Certificates of Conformity for the Subject 

Engines. Certificates of Conformity are required for non-road and marine compression-ignition

engines pursuant to the CAA and include various standards and requirements related to 
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emissions. The EPA Administrator may retroactively deem a Certificate of Conformity, as it 

applies to an original engine and any “carryover” engines, void ab initio, if the manufacturer 

commits certain enumerated infractions, including knowingly submitting false or incomplete 

information, rendering test results inaccurate, otherwise committing any fraudulent act which 

results in the issuance of a Certificate of Conformity, or failing to retain records relating to 

emissions testing. In this case, MTU had failed to certify its Series 4000 engine as a result of

numerous failed emissions tests in 2006 and 2007. During its seventh test, in June 2007, MTU 

allegedly engaged in a series of actions intended to cheat the test, including conducting 

maintenance, replacing the high pressure fuel pump, removing and replacing fuel injectors, 

fabricating and inserting a catalytic convertor-like device (which it later destroyed), and 

manipulating atmospheric factors to alter emissions data. MTU neither sought EPA approval to 

take any of these actions nor recorded them in its engine logbook, as required by EPA 

regulations. MTU then applied for and received Certificates of Conformity based on the falsified 

emissions test. After EPA became aware of the testing irregularities, it voided MTU’s 

Certificates of Conformity. MTU had already sold 895 Subject Engines based on the voided 

Certificates of Conformity.

On March 24, 2015, the United States simultaneously filed a complaint and a notice of 

lodging of the proposed consent decree, asking the court to defer action until the government 

completed the necessary notice-and-comment procedures. The government received no public 

comments, and now moves the court to enter the proposed decree. The decree sets out the 

stipulated penalties, compliance and reporting requirements, and other provisions governing the 

responsibilities of the parties going forward.
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II. LEGAL STANDARD

“Approval of a settlement is a judicial act that is committed to the informed discretion of 

the trial court.” United States v. District of Columbia, 933 F. Supp. 42, 47 (D.D.C. 1996) 

(citation omitted). A court reviewing a consent decree must “determine that the settlement is 

fair, adequate, reasonable and appropriate under the particular facts and that there has been valid 

consent by the concerned parties.” Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1126 

(D.C. Cir. 1983) (citation omitted); Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 70 (D.D.C. 2004); 

see also Massachusetts v. Microsoft, 373 F.3d 1199, 1206 n.1 (D.C. Cir. 2004) (noting the 

general requirement that a consent decree must “fairly and reasonably resolve the controversy in 

a manner consistent with the public interest”) (internal quotations and citation omitted). 

Settlement is highly favored, as “[n]ot only the parties, but the general public as well, benefit 

from the saving of time and money that results from the voluntary settlement of litigation.” 

Gorsuch, 718 F.2d at 1126. This is particularly true in cases involving the EPA, where courts 

accord “broad deference . . . to EPA’s expertise in determining an appropriate settlement and to 

the voluntary agreement of the parties in proposing the settlement.” District of Columbia, 933 F.

Supp. at 47 (citations omitted).

The CAA requires EPA to provide “a reasonable opportunity by notice in the Federal 

Register to persons who are not named as parties or intervenors to the action” to submit

comments on the decree before it is entered. 42 U.S.C. § 7413(g).

III. ANALYSIS

a. Fairness

Courts must consider both procedural and substantive fairness in their analysis of 

proposed consent decrees. District of Columbia, 933 F. Supp. at 48. “A review of the fairness of 
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a proposed consent decree requires an assessment of the good faith of the parties, the opinions of 

the counsel, and the possible risks involved in litigation if the settlement is not approved. A 

consent decree is substantively fair if it incorporates concepts of corrective justice and 

accountability[.]” Envtl. Def., 329 F. Supp. 2d at 70 (internal quotations and citations omitted).

The consent decree proposed in this litigation is fair. The United States and MTU 

support entry of the decree. (Mot. 1). There is no suggestion of impropriety in the negotiation of 

the agreement, and all the parties were represented and advised by competent technical and legal 

staff. (Mot. 5). The parties have reached an agreement that remedies the alleged violations and 

holds MTU accountable for emissions testing going forward. In addition, the United States 

complied with the notice-and-comment procedures required by the CAA and received no 

comments.

b. Adequacy, Reasonableness, and Appropriateness

When assessing whether the consent decree is adequate, reasonable, and appropriate, 

courts “focus on the extent to which the decree is confined to the dispute between the parties and 

whether the decree adequately accomplishes its purported goal.” Envtl. Def., 329 F. Supp. 2d at 

71. This does not mean a court may “impose its own judgments . . . [but] [r]ather, the court must 

determine whether the proposed consent decree is reasonable from an objective point of view.”

Id. (internal quotations and citation omitted).

The parties agree that the scope and purpose of the consent decree is to end this civil 

action and address “alleged Clean Air Act violations based on Defendant’s sale of approximately 

895 engines without valid Certificates of Conformity.” (Mot. 1). The penalties include a $1.2

million fine and injunctive relief which requires MTU to conduct annual audits for three years to 
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assess its compliance with Title II CAA requirements and remedy any non-compliance that is 

identified. (Mot. 5).

The fine is both adequate and appropriate given the underlying conduct of MTU and as a 

deterrent to future CAA violations.1 The injunctive relief is also reasonable and appropriate as it 

ensures that MTU will take steps to prevent future violations and address any institutional 

problems that cannot be addressed by a monetary penalty alone. In light of these factors, the 

Court finds that the consent decree adequately, reasonably, and appropriately addresses the 

conduct of MTU and promotes the purposes of the CAA.

c. Public Interest

The consent decree furthers the public interest by protecting the reliability of non-road 

and marine combustion-ignition engine emissions testing. The decree also furthers the goals of 

the CAA by taking steps to ensure cleaner air for the public. EPA did not receive any public 

comments, however the court is satisfied that the public interest is served by penalizing those 

who attempt to circumvent EPA’s testing protocols to the detriment of the general public.

IV. CONCLUSION

For the foregoing reasons, the court finds that the consent decree is fair, adequate, 

reasonable, appropriate, and in the public interest. The motion to enter the consent decree is 

therefore GRANTED. An appropriate Order accompanies this Memorandum Opinion.

Date: May 22, 2015

Tanya S. Chutkan 

TANYA S. CHUTKAN

United States District Judge

 

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In assessing the penalties imposed, the Court gave due consideration to the factors identified in 42 U.S.C. § 

7524(b).