Washington’s Puget Sound is an ecological treasure, yet its native salmonids and other aquatic life are facing increasing peril. Coho salmon are experiencing die-offs in connection with 6PPD-q, a powerful anti-degradant used to prolong the life of automobile tires. This chemical is shed from vehicle tires and reaches the waters of Puget Sound via stormwater runoff from roads and parking lots.
These die-offs regularly kill 60 to 90% of spawning coho salmon.1 Other salmonids can be similarly impacted. 6PPD-q has been found to be one of the deadliest chemicals to fish ever observed.2 The very properties that make it effective in prolonging tire life also make it especially lethal in shortening marine life.
This is a key factor in the “urban mortality syndrome” that is decimating conservation and recovery efforts for salmon populations in Puget Sound and across other West Coast salmon habitat. Ironically, the hundreds of millions of dollars spent to remove small dams, culverts, and other obstacles to spawning salmon is being nullified by the fish dying soon after they enter these streams due to stormwater and other pollution.
Yet, this eco-threat is largely unchecked due to a fundamental legal gap which lets deadly aquatic contamination escape from federal regulatory oversight. This is a result of National Pollutant Discharge Elimination System (NPDES) permits under Section 402 of the Clean Water Act having been delegated by EPA to the State of Washington — and to most other states too. Due to an unfortunate 5-4 Supreme Court ruling in 2007 (with Justice Samuel Alito authoring yet another of his dreadful majority opinions), that gap allows numerous development projects causing 6PPD-q and other contamination to evade the reach of Section 7 of the Endangered Species Act (ESA).3 The Court ruled that Section 7 does not apply when EPA delegates NPDES permit authority primacy to the individual states.
Section 7 can be a powerful tool for protecting threatened and endangered species and their habitats. Under it, all federal agencies – such as EPA – must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize any ESA-listed species. However, thanks to this Alito-authored ruling, NOAA Fisheries and the U.S. Fish and Wildlife Service (FWS) are cut out from consulting on stormwater facilities that discharge into Puget Sound or the rivers and streams that feed into it. Agency sources have indicated to PEER that it is vital to fix this regulatory gap.
With the discovery of 6PPD-q’s impact, in addition to the ongoing harm from other contaminants such as metals, pesticides, PAHs, other POCs, and PFAS, action is needed to protect aquatic life by requiring stormwater pre-treatment for roads, parking lots, building developments, culverts, athletic fields, and other projects that concentrate runoff.4 The rapidly growing Puget Sound Region is chock-full of them. The runoff contaminants “bioaccumulate” in top predators; this is jeopardizing the southern resident orca population, which is listed as “endangered” under the ESA and edging closer to functional extinction, with only about 75 remaining. Further, the coho salmon devastated by 6PPD-q are part of the orcas’ prey base. Yet, fairly simple stormwater treatment and management steps, such as small ponds, soil infiltration, and bioswales, can significantly reduce the threats to aquatic species at relatively low costs.
But, since states are not obligated to comply with the ESA in their NPDES permitting, there is no federal “regulatory hook” for mandating mitigation measures strong enough to prevent further deadly contamination. Washington State’s current regulation is too weak, allowing this threat to continue. With their legal hands tied, NOAA Fisheries and the FWS cannot eliminate the jeopardy to ESA-listed species such as Puget Sound’s orcas.
Significantly, the spread of artificial turf playing fields and playgrounds made of contaminated rubber tire crumb are an additive factor, as the toxic runoff from them inevitably finds its way to rivers and streams.5 And none of these problems are limited to Puget Sound — waters nationwide are at risk when contaminated runoff occurs.
A recent hearing of the U.S. Committee on Environment and Public Works, Subcommittee on Chemical Safety, Waste Management, Environmental Justice, and Regulatory Oversight, led by Senator Jeff Merkley of Oregon, entitled Understanding the Potential Environmental Impacts of the Chemical 6PPD, focused on new chemical approval action by EPA under the Toxic Substances Control Act to find a replacement for 6PPD for car and truck tires. However, no substitute is yet known.
Unfortunately, even if a substitute is found, that effort, while commendable, would take many years – well more than a decade – to be implemented and to take effect through both the regulatory processes and the massive tire market. That is way too far into the future when more rapid solutions exist to reducing 6PPD-q and other toxic discharges.
Senator Merkley’s hearing also highlighted some “best management practices” (BMPs) for stormwater, but they cannot be relied on alone. As beneficial as BMPs may seem on paper, they will not reliably fix the problem unless enforced across the board through law.
So far as we can tell, there are two legal routes for reducing mortality from 6PPD-q and other toxics in stormwater runoff. One is to amend Section 402 of the Clean Water Act (33 U.S. Code § 1342) to override the Supreme Court decision and explicitly provide NOAA Fisheries and FWS with the authority and responsibility to consult on actions that cause polluting discharges that may affect ESA-listed species, even after primacy for NPDES regulation has been delegated to the states by EPA.
Alternatively, Washington and other states could formally commit to imposing mitigation measures on their NPDES permits that are at least as strong as measures recommended by NOAA Fisheries and the FWS in order to protect ESA-listed species. While such “recommendations” would not be enforceable directly as Section 7 measures, they could, if States commit to them, be equivalently protective. And if Washington acts, other states may follow.
Given the gridlock in Washington, DC, which may well remain even after the election this November, state action appears more readily feasible, especially in Washington State, an environmentally progressive place (and my home state). Washington is also a place where salmon, and orcas, are revered for their historical, cultural, recreational, and resource values.
Regardless of the route taken, unless there is some concerted action – and soon – the invaluable aquatic life in Puget Sound and elsewhere will continue to slowly and needlessly die off.
Peter Jenkins is PEER’s senior counsel.
Citations:
- Tian, Z., et al. 2021. A ubiquitous tire rubber-derived chemical induces acute mortality in coho salmon. Science 317:185.
- EPA webpage on 6PPD-quinone: https://www.epa.gov/chemical-research/6ppd-quinone .
- National Association of Home Builders v. Defenders of Wildlife, 551 US 644 (2007), and see the parallel Court of Appeals decision, American Forest and Paper Ass’n v. U.S.E.P.A., 137 F.3d 291 (5th Cir. 1998).
- PAHs are: polycyclic aromatic hydrocarbons. POCs are: persistent organic chemicals. PFAS are: per- and polyfluoroalkyl substances.
- Murphy, M., and G. Warner. 2022. Health impacts of artificial turf: Toxicity studies, challenges, and future directions. Environmental Pollution 310:119841.
