[dmurray]

There's no intent to deceive necessary in the water heater example. The water heater company could have sent it in with a note to the regulator saying "we moved the second element up, because we believe it will perform better on your test" and the regulator would likely just accept it instead of redesigning the test.

Also, for the water heating one, there's a plausible reason for the regulator to care about the discrete measurements rather than the total amount of thermal energy in the water. Hot water at the top of the tank is more valuable, because it's used first and less likely to be wasted, so you could wait it more heavily in a test. There's no parallel for the VW test cheating. No indication that's what happened here, of course.