6ppd is a small-molecule chemical, designed specifically to migrate to the surface of the tire to protect against wear and degradation.
While tire companies are analyzing 6ppd's effects in California and Washington, their motion to dismiss concerns procedure and the proper avenues of addressing the problem.
"The EPA is actively engaged in specific regulatory processes, rulemaking and guidance under both TSCA and the CWA to address precisely the matters that plaintiffs raise in this lawsuit," defendant's motion to dismiss states. "Two weeks before serving notice on defendants in this case, plaintiffs' counsel, on behalf of other clients, petitioned the EPA to conduct a TSCA rulemaking to address alleged salmonid impacts from 6ppd-q.
"The EPA granted the petition and confirmed it intends to issue an advanced notice of proposed rulemaking by fall 2024 and a final rule by 2025, among many other regulatory actions."
In addition, the world's largest tire makers cite CWA authority, under which the Washington State Department of Ecology has initiated a rulemaking "to establish aquatic life toxics criteria for 6ppd-q in stormwater and other discharges."
In this case, defendants' motion states, the ecology department's rulemaking triggers the EPA's CWA approval process and requires the EPA to consult with the National Marine Fisheries Service under the Endangered Species Act to address the impact on salmonids.
"To avoid intruding on these ongoing regulatory actions to address any harms to salmonids from 6ppd-q, this court should exercise its discretion to dismiss plaintiffs' case under the doctrine of primary jurisdiction," the motion states.
The non-profit Earthjustice and the fishing groups disagree, stating that the fisheries' argument lies within the ESA and the ESA's definition of unlawful "take" of protected species.
Both parties agree that this is an atypical ESA case.
"Never have plaintiffs encountered a common consumer product that has wreaked so much havoc on threatened and endangered species and continues to do so, unchecked," the March 22 response to the motion to dismiss states. "In an attempt to delay indefinitely their own accountability under the ESA, defendants wrongly ask this court to dismiss this case to allow various lengthy and uncertain state and federal regulatory processes to play out, but not one of those processes will resolve the present, ongoing ESA 'take' liability issues in this case."
In addition, the fisheries say they maintain a legitimate claim upon which relief can be granted under Federal Rule of Civil Procedure.
"Plaintiffs' complaint delineates how defendants' inclusion of 6ppd in tires foreseeably harms and kills ESA-protected salmonids and therefore unlawfully 'takes' them within the meaning of the ESA," the plaintiff's response states. "The court should reject defendants' bid to continue to harm and kill coho, Chinook and steelhead with impunity. The court should deny the motion to dismiss."
Tire manufacturers disagree here as well, stating that there is no "plausible claim" for relief under ESA Section 9, since, as a matter of law, "take" does not include the manufacture or distribution of a product.
"Even under the broadest interpretation, the term 'take'—whether by harm, harass, wound or kill—has never encompassed inclusion of a chemical in a consumer product manufactured for general use in any location or the distribution of that consumer product," defendants' motion to dismiss states. "Plaintiffs ask this court to step around the statutory responsibility of the U.S. EPA to regulate a certain chemical used in tires and other products across the nation by stretching the ESA beyond its breaking point."
Tire manufacturers further state in their motion that "manufacturing a lawful consumer product and introducing it into the stream of commerce does not violate the ESA simply because the product contains a chemical that, when shed, transformed and transported through stormwater to a protected species' habitat, allegedly harms that species."
Before issuing a 60-day notice to sue in this case, Earthjustice attorneys on Aug. 1, 2023, submitted a petition to the EPA, under the auspices of the TSCA and on behalf of the Yurok (Northern California), Port Gamble S'Klallam (Kitsap Peninsula, Wash.) and Puyallup (Tacoma, Wash.) tribes of Indians, asserting precisely the same issues and problems (relative to this case) and demanding an immediate halt to the use of 6ppd in tire production.
According to the coalition's petition, rainbow trout, steelhead trout, Chinook salmon, brook trout, white spotted char and "likely other species that have not yet been studied" are being affected.
6ppd even has been found in stream-side plants and mushrooms, according to the tribes' petition.
EPA approved the tribes' petition Nov. 2, 2023, saying that it intends to publish (by fall 2024) rulemaking associated with risk management of 6ppd and 6ppd-q.
Regulators also are working under the CWA to address discharges of 6ppd-q into the aquatic environment and establish water quality limits on the chemical in salmonid streams.
Just last month, the Washington State Department of Ecology proposed aquatic life toxics criteria for 6ppd-q in stormwater and other point-source discharges.
