The three-day trial will determine whether tire manufacturers are violating the Endangered Species Act by using a chemical additive in car tires that harms endangered fish species.
By Margaret Attridge, Courthouse News Service
Studies concluding that a chemical additive in car tires is leaching into rivers and killing protected fish species did not consider key factors and do not reflect the reality of fish in West Coast waterways, tire manufacturers told a federal judge during a bench trial in San Francisco, California, Monday.
After a three-day trial, the judge will determine whether tire manufacturers — including Bridgestone America, Goodyear Tires and Michelin North America — are violating the Endangered Species Act by harming protected and endangered fish species like coho salmon, steelhead trout and Chinook salmon.
The plaintiffs claim the tire manufacturers make or distribute products that contain an additive called 6PPD, a chemical that ultimately transforms into 6PPD-quinone when it reacts with ozone. As the tire interacts with the environment and roads, 6PPDQ leaches onto hard surfaces. When it rains, the chemical falls into rivers and other waterways, where it can kill fish in a matter of hours, they add.
During the second day of the trial, U.S. District Judge James Donato, a Barack Obama appointee, heard from experts in ecotoxicology and ecology about the toxicity of 6PPDQ and the applicability of the studies the plaintiffs’ claims rely on.
The plaintiff’s primary witness, John Stark, a Washington State University professor and director of the Washington Stormwater Center, testified that 6PPDQ is toxic to coho salmon, Chinook salmon and steelhead trout in concentrations that are likely to occur in their habitats, and the chemical is likely to harm and kill the fish species.
After exposure to 6PPDQ, fish start displaying symptoms of urban runoff mortality syndrome, causing them to lose equilibrium and die within a few hours. Even if they’re transferred to non-polluted water after exposure, they don’t recover from the syndrome and will die, Stark said.
He said lab studies have shown that coho salmon can die within 45 minutes of exposure to 6PPDQ. Just 5% of stormwater diluted in a waterway can be enough to kill a fish, he added.
When asked by plaintiff attorney Janette Brimmer of Earthjustice if there are other toxins similar to 6PPDQ, Stark responded that there is “nothing else that causes these symptoms other than 6PPDQ.”
In addition to the lethal effects of 6PPDQ, Stark testified that the chemical can also cause sublethal, or nonlethal, harm to the fish and food chain, resulting in population decline. However, he said infrastructure measures, such as rain gardens, have been shown to affect 6PPDQ levels in roadway runoff.
“We knew untreated stormwater would kill coho salmon and were trying to see if we ran stormwater through the rain garden, what could happen? It greatly reduced or removed whatever the components were, resulting in fish survival,” he said.
The defense spent most of its questioning on the accuracy and relevancy of the studies the plaintiffs cite in their claims. Their primary witness, William Goodfellow, an ecotoxicologist and risk assessor at science consulting firm Exponent, testified that the field data the plaintiffs use does not demonstrate the fish species at issue were exposed to 6PPDQ concentrations high or long enough to cause harm.
Goodfellow said the fish used in the studies do not accurately represent the fish at issue and that it would be incorrect to assume the fish in the case respond to 6PPDQ the same as fish in the plaintiffs’ studies.
“Not all water is created equal, and not all laboratories are created equal,” he said.
Goodfellow called out potential genetic differences in the fish in the studies, saying he did not believe the plaintiffs controlled for population differences and that there may be a disparity between how different fish populations react to toxins.
“The toxicity was not measured with the right data and reliable methods. It does not provide certainty because the studies use various experimental designs and limited fish tested with a lot of potential flaws,” he said.
In cross-examination, Brimmer asked Goodfellow about his role with the defense, asking if he was brought in to “sow doubt about the five-plus years of peer-reviewed published studies about 6PPDQ.” Brimmer denied the accusation.
In a statement to Courthouse News, Sam Singer, a spokesperson for the tire companies, said the plaintiffs’ claims rely heavily on specific studies and data that “fail to fully account for the broader, complex realities” of waterways where the fish in the case can be found.
“The plaintiffs’ theory assumes that what happens in a lab is what happens in complex, real-world rivers and streams,” he said, adding that the plaintiffs “are asking for a nationwide ban on a safety-critical tire ingredient based on theoretical harm.”
A representative for the plaintiffs declined to comment beyond a statement released yesterday by Glen Spain, general legal counsel and northwest regional director of the Institute for Fisheries Resources and the Pacific Coast Federation of Fishermen’s Associations.
“The use of 6PPD in tires has been shown to harm vulnerable salmon populations. Whether or not this should continue will be up to the court,” Spain said.
