Conservationists claim that runoff of a chemical in car tires is harming endangered fish and violating the Endangered Species Act.
By Carly Nairn, Courthouse News Service
On the last day of a three-day bench trial, tire manufacturers maintained that there is not yet enough data to form opinions about the effects of a runoff tire chemicals on protected and endangered fish populations.
Environmental organizations claim the tire manufacturers — including Bridgestone America, Goodyear Tires and Michelin North America— make or distribute products that contain 6PPD, a chemical that ultimately transforms into 6PPD-quinone when it reacts with ozone. As the tire interacts with the environment and roads, 6PPD-Q 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, the Institute for Fisheries Resources and the Pacific Coast Federation of Fishermen’s Associations claim.
The groups sued in 2023 to protect the critical habitat of endangered fish species such as coho and Chinook salmon and steelhead trout with specific vulnerable populations in 24 areas of Washington, Oregon and California.
Two of the main contentions of the case include whether 6PPD-Q degrades or is diluted with other possible containments, so it cannot be site specifically measured as a cause of death among fish species exposed to the runoff, and whether there are viable alternatives to 6PPD, a chemical tire manufacturers call “an essential ingredient.”
In court, defense witness Robert Annear, a water consultant, said “Data is insufficient to characterize 6PPD-Q in surface waters were the ESA listed fish are located,” he said. “The rate and transport are critical for understanding how it interacts in the aquatic environment and yet the scientific research is still in-progress.”
Sam Singer, a spokesperson for the tire companies, said in a statement that the additive called 6PPD is critical for tire safety and there currently is no suitable alternative.
“The plaintiffs’ claims of harm are based on data extrapolated from literature that they attempt to apply universally, without accounting for real-world conditions in the distinctively different locations listed in the plaintiff’s complaint,” he said. “Plaintiffs are asking for a nationwide ban on a safety-critical tire ingredient based on theoretical harm. The Endangered Species Act has never been used to reach this far up the supply chain to manufacturers and distributors in this way.”
But one of the plaintiffs’ expert witnesses, Derek Booth, a hydrologist, geologist and a former professor at the University of Washington, with expertise in stormwater, testified about the current data available to understand how and why stormwater runoff was toxic to coho salmon due to the presence of 6PPD-Q.
“This is not a difficult conclusion to make,” he said, regarding finding toxic levels of 6PPD-Q in critical habitat within the compilation of studies he reviewed. “It’s not a heavy lift.”
U.S. District Judge James Donato was quick to interrupt attorney questioning and testimony, to make clear the importance of time management and to keep questioning “probative rather than comprehensive.”
“I understand 6PPD-Q is toxic, I understand 6PPD-Q comes from tires, I understand it gets in runoff that gets into waterways,” he admonished attorneys. “You need to get to specific concentrations, at specific times with documented harms, or else I just see this as a waste of time.”
Donato, a Barack Obama appointee, also said he did not “see the utility” in calling witnesses for a foreseeability, or proximate cause defense, noting he has dealt with a lot of Endangered Species Act cases, particularly regarding Section 9 of the ESA, which makes it illegal to “take” or harm, wound or kill endangered species, and they aren’t considered proper defense strategies.
The plaintiffs are asking the court to declare that the tire companies are violating the Endangered Species Act and to prohibit them from continuing to harm the three fish species.
In their complaint, the groups assert 6PPD-Q is particularly destructive to salmon because they swim upstream and inland to their birthplaces to reproduce. Once there, they can be exposed to stormwater containing 6PPD-quinone.
After exposure, 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 before they die, they don’t recover from the syndrome.
Perry Wheeler, a spokesperson for Earthjustice, an environmental law nonprofit representing the plaintiffs, said in a statement to Courthouse News, “As expert testimony and the evidence have made clear this week: 6PPD-Q is devastating to vulnerable salmon populations, yet 6PPD continues to be used by U.S tire manufacturers.”
“We hope that it leads to much-needed relief for both aquatic species and the fishing communities that depend on salmon for their livelihoods,” he said.
Donato did not specify when he would decide the case but said more than 60 days for consideration is likely.
