Existing law vests the Department of Transportation with full possession and control of all state highways. Under existing law, the State Water Resources Control Board and the 9 California regional water quality control boards regulate water quality.

This bill would require the department, in conjunction with the State Water Resources Control Board, to develop a programmatic environmental review process to prevent 6PPD and 6PPD-quinone from entering salmon and steelhead trout bearing surface waters of the state. The bill would require the state board to establish the parameters of the departments programmatic environmental review process, as specified, and, to the extent practical, with the department, consult with the States of Washington and Oregon in the development of the programmatic environmental review process. The bill would require the departments 6PPD and 6PPD-quinone programmatic environmental review process to include specified components, including 5 pilot projects at specified locations to study the effectiveness and cost effectiveness of installing and maintaining bioretention and biofiltration comparatively along department rights-of-way to eliminate the discharge of 6PPD and 6PPD-quinone into surface waters of the state, as specified. The bill would require all information provided by the department to the state board pursuant to these provisions be made publicly available through the state boards stormwater data collection system.

Existing law vests the Department of Transportation with full possession and control of all state highways. Under existing law, the State Water Resources Control Board and the 9 California regional water quality control boards regulate water quality.

This bill would require the department, in consultation conjunction with the State Water Resources Control Board, the Department of Toxic Substances Control, and the Department of Fish and Wildlife, to develop a programmatic environmental review process to prevent 6PPD and 6PPD-quinone from entering salmon and steelhead trout bearing surface waters of the state. The bill would require the state board to establish the parameters of the departments programmatic environmental review process, as specified, and, to the extent practical, with the department, consult with the States of Washington and Oregon in the development of the programmatic environmental review process. The bill would require the departments 6PPD and 6PPD-quinone programmatic environmental review process to include a pilot project at an unspecified location specified components, including 5 pilot projects at specified locations to study the effectiveness and cost effectiveness of installing and maintaining bioretention and biofiltration comparatively along department rights-of-way to eliminate the discharge of 6PPD and 6PPD-quinone into surface waters of the state, as specified. The bill would require all information provided by the department to the state board pursuant to these provisions be made publicly available through the state boards stormwater data collection system.

Existing law vests the Department of Transportation with full possession and control of all state highways.

This bill would require the department, in consultation with the State Water Resources Control Board, the Department of Toxic Substances Control, and the Department of Fish and Wildlife, to develop a programmatic environmental review process to prevent 6PPD and 6PPD-quinone from entering salmon and steelhead trout bearing surface waters of the state. The bill would require the departments 6PPD and 6PPD-quinone programmatic environmental review process to include a pilot project at an unspecified location to study the effectiveness and cost effectiveness of installing and maintaining bioretention and biofiltration comparatively along department rights-of-way to eliminate the discharge of 6PPD and 6PPD-quinone into surface waters of the state, as specified.

Date of Hearing: April 24, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 1798

Author:(Papan) – As Amended Ver:April 3, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the California Department of Transportation (Caltrans), in conjunction with the State Water Resources Control Board (State Water Board), to develop a programmatic environmental review process that includes implementation of five pilot projects, to prevent N-(1,3-dimethylbutyl)-N'-phenyl-p-phenylenediamine (6PPD) and 6PPD-quinone (6PPD-q) from entering salmon-bearing and steelhead trout-bearing surface waters of the state.

In addition, this bill, among other things:

1. Requires the State Water Board to determine, for the programmatic environmental review process, the frequency and timing for sampling a qualified storm event; monitoring and reporting protocols; the project location for each county; and all other information and data deemed necessary to inform future stormwater permit reissuances.
2. Requires the programmatic environmental review process to include all of the following:
3. Five pilot projects to study the water quality control and cost effectiveness of installing and maintaining bioretention and biofiltration along Caltrans’ rights-of-way to eliminate the discharge of 6PPD and 6PPD-q into surface waters of the state.
4. A map of all locations where Caltrans is likely to discharge stormwater into salmon-bearing or steelhead trout-bearing surface waters, as specified.
5. A strategy to eliminate, by December 31, 2037, the discharge of 6PPD and 6PPD-q by Caltrans into salmon-bearing and steelhead trout-bearing surface waters of the state. Requires that the strategy be posted on Caltrans' website on or before December 31, 2027, and include considerations of cost savings through implementation of existing total daily maximum load (TMDL) projects and planned projects where biofiltration or bioretention could effectively be implemented to control 6PPD and 6PPD-q.
6. Requires, no later than December 31, 2026, Caltrans to construct five pilot projects in certain counties, as specified.
7. Requires Caltrans to provide consultation on a government-to-government basis with tribal communities to allow tribal officials the opportunity to provide meaningful and timely input in the development of Caltrans' strategy to eliminate 6PPD and 6PPD-q from all salmon-bearing and steelhead trout-bearing surface waters of the state.
8. Requires all information provided by Caltrans to the State Water Board, pursuant to this bill, be made publicly available through the State Water Board's stormwater data collection system.

FISCAL EFFECT:

1) Caltrans estimates:

a) One-time costs of approximately $10 million (General Fund) to construct the required pilot projects. For a single location on Caltrans’ right of way, if no easements or purchases are required and assuming each location has one or two biofiltration swales installed, Caltrans anticipates the costs associated with building and implementing one pilot project to be approximately $2 million. This bill requires Caltrans to construct five pilot projects. Caltrans indicates its estimated costs could increase if the pilots are located or near tribal lands as it would require contracts with the tribes.

b) Ongoing annual costs of approximately $1.1 million for five new staff members to implement the requirements of this bill (General Fund). Tasks include the development of the programmatic environmental review, tribal consultation, coordination on the selection of pilot project locations, oversight of stormwater collection, analysis, inventory, database workload, coordination with internal and external stakeholders and partners, and engineering support.

2) The State Water Boar estimates ongoing annual costs of approximately $450,000 to help develop and implement the programmatic environmental review process required by this bill (General Fund or Waste Discharge Permit Fund).

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1) Purpose. According to the author:

[6PPD] is an emerging toxin found in vehicle tires, that’s alarming scientists due to the extremely dangerous impact that it has on native salmon and trout populations in California surface waters. Fortunately, there are stormwater management practices that are readily available to effectively treat the runoff of 6PPD which helps reduce toxic chemical exposure threatening salmon throughout the state. Therefore, I am proposing Assembly Bill (AB) 1798, which will require the Department of Transportation to develop and implement a strategy to eliminate 6PPD from stormwater discharges into our California aquatic systems.

2) Background. In May 2022, the Department of Toxic Substances Control (DTSC) initiated a rulemaking to list motor vehicle tires containing 6PPD as a priority product under DTSC's Safer Consumer Products regulations. The finalized regulation, which became effective on October 1, 2023, requires domestic and foreign manufacturers of motor vehicle tires containing 6PPD, by November 30, 2023, to submit a priority product notification to DTSC for these products if they are entered into the stream of commerce in California. After submitting the priority product notification, manufacturers must submit one of several specified notifications, which can, among other things, indicate that the manufacturer has or intends to remove 6PPD from its products, or that the manufacturer has or intends to remove the product from the stream of commerce in California.

DTSC notes 6PPD has been used as an anti-degradant for decades and is found in most, if not all, motor vehicle tires. While 6PPD performs the critical function of protecting rubber from reactions with ozone and oxygen, which can lead to cracks, 6PPD is toxic to aquatic organisms at multiple trophic levels, can impair wildlife survival, and is toxic to algae. 6PPD-q, a reaction product of 6PPD, is acutely toxic to coho salmon and kills fish within a few hours of exposure. While little is known about the effect of 6PPD-q on other organisms, 6PPD-q may also be toxic to closely related species such as steelhead and chinook. DTSC notes the loss of coho salmon in California has significantly harmed Native American tribes that have traditionally relied on the species as an important food source.

Stormwater runoff water quality from the state highway system is permitted and regulated through the National Pollution Discharge Elimination System (NPDES) permit program, which is delegated by the U.S. Environmental Protection Agency to the State Water Board. The State Water Board and regional water boards determine pollutant levels that are protective of the beneficial uses of water and Caltrans then designs, constructs, and maintains best management practices to meet these permit requirements. Requirements to specifically monitor or control 6PPD and 6PPD-q are not in Caltrans’ current NPDES permit.

3) Related Legislation. AB 756 (Papan) of this legislative session was similar to this bill. In addition to many of requirements reflected in this bill, AB 756 requires Caltrans, starting in January 1, 2027, to annually install bioretention and biofiltration controls at 10% of the locations identified in its map and strategy for 10 years, until Caltrans has installed controls at all locations where the department is likely to discharge stormwater into salmon-bearing or steelhead trout-bearing surface waters of the state. AB 756 was held on this committee’s suspense file.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 9, 2024

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Eduardo Garcia, Chair

ABPCA Bill Id:AB 1798 (

Author:Papan) – As Amended Ver:April 3, 2024

SUBJECT: Department of Transportation: contaminated stormwater runoff: salmon and steelhead trout bearing surface waters

SUMMARY: Requires the California Department of Transportation (Caltrans), in conjunction with the State Water Resources Control Board (State Water Board), to develop a programmatic environmental review process that includes implementation of five pilot projects, to prevent 6PPD and 6PPD-quinone (6PPD-q) from entering salmon and steelhead trout-bearing surface waters of the state. Specifically, this bill:

1. Defines the following terms:
2. "6PPD" means the chemical compound N-(1,3-Dimethylbutyl)-N′-phenyl-p-phenylenediamine commonly contained in motor vehicle tires;
3. "6PPD-quinone" means the reaction product of 6PPD that is acutely toxic to aquatic life;
4. "Biofiltration" means the effect of vegetated treatment facilities that reduce stormwater pollutant discharges by intercepting rainfall on vegetative canopy, and through incidental infiltration or evapotranspiration, and filtration;
5. "Bioretention" means the effect of engineered facilities that store and treat stormwater by passing it through a specified soil profile, and either retain or detain the treated stormwater for flow attenuation;
6. "Consultation" means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement. Consultation between government agencies and Native American tribes shall be conducted in a way that is mutually respectful of each party’s sovereignty, and recognize a tribe’s potential needs for confidentiality with respect to places that have traditional tribal cultural significance; and,

1. "Tribal community" means a community within a federally recognized California Native American tribe or nonfederally recognized Native American tribe on the contact list maintained by the Native American Heritage Commission.
2. Requires Caltrans, in conjunction with the State Water Board, to develop a programmatic environmental review process to prevent 6PPD and 6PPD-q from entering salmon and steelhead trout-bearing surface waters of the state.
3. Requires Caltrans and the State Water Board, to the extent practicable, to seek the assistance and expertise of the States of Washington and Oregon in the development of the programmatic review process.
4. Requires the State Water Board to determine, for the programmatic environmental review process, the frequency and timing for sampling for a qualified storm event, monitoring and reporting protocols, the specific project location for each county, and all other information and data deemed necessary to inform future stormwater permit reissuances.
5. Requires the programmatic environmental review process to include all of the following:
6. Five pilot projects (described further below), to study the water quality control and cost effectiveness of installing and maintaining bioretention and biofiltration along department rights-of-way to eliminate the discharge of 6PPD and 6PPD-q into surface waters of the state;
7. A map of all locations where Caltrans is likely to discharge stormwater into salmon or steelhead trout bearing surface waters, to include an overlay of salmon and steelhead fishery information, areas of high vehicle miles traveled, and specific drainage outlets or other likely discharge points for each location; and,
8. A strategy to eliminate, by December 31, 2037, the discharge of 6PPD and 6PPD-q by Caltrans into salmon and steelhead trout-bearing surface waters of the state. The strategy shall be posted on Caltrans' website on or before December 31, 2027, and include considerations of cost-savings through implementation of existing total daily maximum load (TMDL) projects and planned projects where biofiltration or bioretention could effectively be implemented to control 6PPD and 6PPD-q. In developing the strategy, Caltrans may consult with the California Department of Toxic Substances Control (DTSC) and consider how the strategy, in combination with efforts by DTSC to regulate the use of 6PPD in the manufacture of motor vehicle tires, will further reduce the presence of 6PPD and 6PPD-q in surface waters.
9. Requires, no later than December 31, 2026, Caltrans to construct five pilot projects—one each in the counties of San Mateo, Contra Costa, Sonoma, Humboldt, and Nevada—to study the highest performance and most cost-effective methods for installing bioretention and biofiltration, and to measure the effectiveness of bioretention and biofiltration in controlling the discharge of microplastics and other pollutants, deemed appropriate by the State Water Board, from state highways into surface waters of the state.
10. Requires Caltrans to provide consultation on a government-to-government basis with tribal communities, to allow tribal officials the opportunity to provide meaningful and timely input on the development of Caltrans' strategy to eliminate 6PPD and 6PPD-q from all salmon and steelhead trout-bearing surface waters of the state.
11. Requires all information provided by Caltrans to the State Water Board, pursuant to the programmatic environmental review process, to be made publicly available through the State Water Board's stormwater data collection system.

EXISTING LAW:

1. Establishes the federal Clean Water Act (CWA) to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (USC) § 1251, et seq.)
2. Establishes the National Pollutant Discharge Elimination System (NPDES) permit program, requiring the State Water Board and the nine California Regional Water Quality Control Boards (Regional Water Boards) to prescribe waste discharge requirements that, among other things, regulate the discharge of pollutants into stormwater, including municipal stormwater systems. (33 USC § 1342)
3. Establishes the Porter-Cologne Water Quality Control Act, which prohibits the discharge of pollutants to surface waters unless the discharger obtains a permit from the State Water Board. (Water Code § 13000, et seq.)
4. Requires DTSC to adopt regulations to establish a process to identify and prioritize chemicals and chemical ingredients that may be considered chemicals of concern; establish a process to evaluate chemicals of concern, and their potential alternatives, to determine how best to limit exposure or reduce the level of hazard posed by a chemical of concern; and, specify the range of potential regulatory responses that DTSC may take after the alternatives analysis is completed. (Health and Safety Code § 25252, et. seq.)
5. Establishes Caltrans and provides that it has full possession and control of all state highways and property and rights in property acquired for state highway purposes. (Streets and Highways Code (SHC) § 90)
6. Requires Caltrans to prepare an annual report to the Legislature describing the status of progress in locating, assessing, funding, and remediating barriers to fish passage, and requires an assessment of potential barriers to fish passage prior to commencing project design. (SHC § 156, et seq.)

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author:

"We must take action to preserve the health and safety of rivers and streams in order to build a strong, safe, and sustainable future for Californians everywhere. In doing so we must address the many dangers facing our waterways including micro-particle pollutants and toxic stormwater runoff that threaten native species and aquatic ecosystems. One such pollutant, known as 6PPD, is an emerging toxin found in vehicle tires, that’s alarming scientists due to the extremely dangerous impact that it has on native salmon and trout populations in California surface waters. Fortunately, there are stormwater management practices that are readily available to effectively treat the runoff of 6PPD which helps reduce toxic chemical exposure threatening salmon throughout the state. Therefore, I am proposing Assembly Bill (AB) 1798, which will require the Department of Transportation to develop and implement a strategy to eliminate 6PPD from stormwater discharges into our California aquatic systems. With this bill, California will get in front of the problem and be one step closer towards preserving the health and wellness of our natural water system."

The NPDES Permit Program: In 1972, amendments to the Federal Water Pollution Control Act of 1948—the first major United States law to address water pollution—created what is commonly known today as the CWA. The federal CWA establishes the basic structure for regulating discharges of pollutants into waters of the United States and regulating quality standards for surface waters. Under the CWA, the United States Environmental Protection Agency (US EPA) implements pollution control programs that include setting water quality standards for all contaminants in surface waters. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters without a permit.

As authorized by the federal CWA, the NPDES Permit Program controls water pollution by regulating point sources—or discrete conveyances such as pipes, or human-made ditches—that discharge pollutants into waters of the United States. Examples of pollutants include, but are not limited to, rock, sand, dirt, and agricultural, industrial, and municipal waste. Industrial, municipal, and other facilities must obtain an NPDES permit to discharge into surface water. In California, implementation of the NPDES Permit Program has been delegated to the State Water Board and nine Regional Water Boards, which maintain regional jurisdiction within boundaries that are based on major watersheds.

Stormwater regulation: Stormwater is defined by the US EPA as runoff generated when precipitation from rain and snowmelt events flows over land or impervious surfaces, without percolating into the ground. Stormwater is often considered a nuisance because it mobilizes pollutants such as motor oil, trash, and microplastics. According to the State Water Board, in most cases, stormwater flows directly to water bodies through sewer systems, contributing a major source of pollution to rivers, lakes, and the ocean. Because of their propensity to contain and mobilize pollutants, stormwater discharges in California are regulated through NPDES permits. However, when properly managed, stormwater may also act as a resource and recharge groundwater sources. 

Under the Municipal Storm Water Program, the State Water Board regulates stormwater discharges from municipal separate storm sewer systems (MS4s), defined by the US EPA as a conveyance or system of conveyances, including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, human-made channels, or storm drains. Under this program, the State Water Board adopted, in June 2022, an updated NPDES Statewide Stormwater Permit (Permit) to regulate stormwater discharges from Caltrans' statewide transportation system, which includes MS4s, more than 50,000 miles of highway and freeway lanes, and maintenance, storage, and vehicle parking facilities. The Permit specifies TMDLs, which define how much of a pollutant a water body can tolerate and establish a plan to restore clean water through the examination of water quality problems, identification of pollution sources, and specification of solutions. TMDLs for 6PPD and 6PPD-q are not included in the Permit.

6PPD, 6PPD-q, and salmon die off: According to the US EPA, 6PPD is added to vehicle tires to prevent them from breaking down due to reactions with ozone and other reactive oxygen chemicals in the air. When 6PPD reacts with ozone, it forms 6PPD-q. Tires wear down through contact with roads, releasing particles containing 6PPD into the environment, and when it rains, stormwater washes these particles into streams and other water bodies.

Available information on 6PPD-q indicates that it is acutely toxic to some species of fish. A 2021 publication in the journal Science linked coho salmon death to 6PPD-q in stormwater (Tian et al.). The authors found that concentrations in stormwater were lethal to coho salmon following exposures lasting only a few hours. Subsequent work identified other fish species as vulnerable to 6PPD-q; for example, one study in the journal Environmental Science and Technology Letters demonstrated acute toxicity of 6PPD-q to two different trout species (Brinkmann et al., 2022).

The US EPA notes that the impacts of 6PPD-q on salmon populations is a key issue. These fish species have cultural, commercial, and ecological importance, and some coho salmon populations are endangered and threatened. Many Tribes rely heavily on salmon and other aquatic resources for food and cultural practices. Healthy and accessible salmon populations are critical to the health and wellbeing of Tribes, including the practice and protection of Tribal Treaty Rights.

Action by Native American tribes to urge federal regulation of 6PPD: On August 1, 2023, the US EPA received a petition under the federal Toxic Substances Control Act, submitted by EarthJustice on behalf of the Yurok Tribe, the Port Gamble S’Klallam Tribe, and the Puyallup Tribe of Indians. The petition requests that the US EPA "establish regulations prohibiting the manufacturing, processing, use, and distribution of [6PPD]… for and in tires…with such regulation to take effect as soon as practicable, in order to eliminate the unreasonable risk 6PPD in tires presents to the environment." The US EPA granted the petition and plans to take action to address the risk to the environment presented by 6PPD and 6PPD-q, through an advance notice of proposed rulemaking under the Toxic Substances Control Act. The US EPA also plans to propose a rule to require manufacturers (including importers) of 6PPD to report certain lists and copies of unpublished health and safety studies to the US EPA.

California's adoption of motor vehicle tires containing 6PPD as a Priority Product: On May 20, 2022, DTSC initiated rulemaking to list motor vehicle tires containing 6PPD as a Priority Product under DTSC's Safer Consumer Products regulations. The finalized regulation became effective October 1, 2023 and requires domestic and foreign manufacturers of motor vehicle tires containing 6PPD to submit a Priority Product Notification for these products, if they are entered into the stream of commerce in California, by November 30, 2023. After submitting the Priority Product Notification, manufacturers must submit one of several specified notifications, which can, among other things, indicate that the manufacturer has or intends to remove 6PPD from its products, or that the manufacturer has or intends to remove the product from the stream of commerce in California.

In its rationale for listing motor vehicles containing 6PPD as a Priority Product, DTSC states:

"The tire antidegradant 6PPD and its reaction product 6PPD-quinone are highly toxic to aquatic organisms. 6PPD has been used as an antidegradant for decades and is found in most, if not all, motor vehicle tires. 6PPD performs the critical function of protecting rubber from reactions with ozone and oxygen, which can lead to cracks.

However, 6PPD is toxic to aquatic organisms at multiple trophic levels, can impair wildlife survival, and is toxic to algae. 6PPD-quinone, a reaction product of 6PPD, is acutely toxic to coho salmon and kills fish within a few hours after exposure. While little is known about the effect of 6PPD-quinone on other organisms, 6PPD-quinone may also be toxic to closely related species such as steelhead and chinook. Tires release 6PPD-quinone into the aquatic environment, sometimes at levels lethal to coho salmon.

Over the life of a tire, 6PPD continuously migrates to the surface, where it provides protection from degradation caused by ozone and oxygen. Tire wear particles (TWP) are generated during use as tires roll across the road surface, particularly as vehicles brake, accelerate, and turn. TWP, and the 6PPD they contain, can then enter the aquatic environment from road dust into surface runoff and stormwater.

While it is unclear exactly where and how 6PPD-quinone is formed, detections of 6PPD-quinone in California waterways clearly indicate that it is sufficiently persistent in aquatic systems for aquatic organisms to be exposed to the chemical at levels that may cause harm. 6PPD-quinone has been measured in California streams at concentrations above those shown to kill at least half of coho salmon in laboratory experiments. 

Based on the criteria in the Safer Consumer Product Regulations, DTSC has determined that aquatic organisms can be exposed to 6PPD and 6PPD-quinone derived from motor vehicle tires. This exposure may cause or contribute to significant adverse impacts to aquatic organisms, including two populations of coho salmon in California, one of which is endangered, the other threatened. 6PPD-quinone is present in California runoff and waterways above concentrations that kill coho in laboratory studies. Exposure to 6PPD and 6PPD-quinone may jeopardize the recovery of coho salmon and other imperiled species. The loss of coho salmon in California has significantly impacted Native American tribes in California that have traditionally relied on the species as an important food source. The loss of core traditional food sources for tribal communities has been linked to loss of culture, increased physical and mental health issues, and increased poverty."

Biofiltration and bioretention: In the 2007 report, "A review of low impact development policy: Removing institutional barriers to adoption," the State Water Board describes the promise of low impact development (LID) strategies. Traditional methods of stormwater management have focused on collection and conveyance systems, and end-of-pipe treatment and control technologies. These traditional methods of control deal only with the consequences of development, without addressing the root causes of polluted stormwater runoff into water bodies. LID strategies present an appealing alternative to traditional management approaches because they can manage stormwater and capture pollutants through high rates of infiltration, vegetative interception, and evapotranspiration, by mimicking or preserving the "evolved natural hydrology" of a site.

Rather than centralized, end-of-pipe controls, LID relies on an integrated system of decentralized, small-scale control measures. These measures can include installation of biofiltration and bioretention systems, which remove pollutants from runoff through physical filtration as stormwater passes through media layers. These systems have been shown to mitigate 6PPD-q pollution and reduce the occurrence of fish mortality associated with urban runoff. For example, a 2016 study published in the Journal of Applied Ecology (Spromberg, et al.) showed that while untreated highway runoff was universally lethal to adult coho salmon, this mortality was prevented when highway runoff was first pretreated through bioretention columns, engineered using gravel, soil, and mulched bark. Another study, published in 2023 in the journal Environnmental Science and Technology Letters, showed that stormwater bioretention systems can mitigate more than 90% of 6PPD-q loadings to streams under average storm conditions (Rodgers, et al.).

In its 2018 "Stormwater Quality Handbook" for maintenance staff, Caltrans identifies biofiltration and detention devices as "technically and fiscally feasible" and approved best management practices for reducing contaminants to improve water quality. In addition, the Permit, described above, requires Caltrans to maintain a Stormwater Management Plan (Plan), a document that describes Caltrans' plans for complying with the requirements of the Permit. The Plan must include specified elements, including Caltrans' plans for complying with post-construction requirements. The Permit requires that these projects "be designed to control and abate the discharge of pollutants in stormwater with primary consideration to infiltrating, harvesting, and/or re-using the stormwater runoff prior to consideration of treatment and discharge (e.g., biofiltration)." The Permit also states that the "first priority shall be the use of vegetated landscape and soil based best management practices to treat stormwater runoff."

Other states have evaluated the use of best management practices such as bioretention and biofiltration to address the impacts of 6PPD and 6PPD-q on water quality and fish species. For example, in 2021, the Washington State Legislature appropriated $523,000 for the state department of transportation and university partners to identify priority areas affected by 6PPD from roads and transportation infrastructure, identify best management practices for reducing toxicity, develop a standard method for the laboratory measurement of 6PPD-q, and submit a report to the state legislature. Among its findings, the report, completed in October 2022, states that the "amount of stormwater mitigation needed to address the tire pollution problem varies considerably from watershed to watershed. Identifying areas for finer-scale assessments based on vulnerability will require more coordination and research."

Arguments in support: According to a coalition of supporting organizations:

"Studies on the 'coho mortality phenomenon' have found that biofiltration and bioretention systems, readily available green infrastructure practices, effectively treat the runoff of 6PPD in terms of both toxic chemical exposure and salmon spawner survival. Biofiltration will not only prevent 6PPD from killing our endangered salmon and steelhead species but can also prevent other stormwater pollutants—such as microplastics and toxic metals—from entering our waterways…AB 1798 would require Caltrans to identify all locations where state highways cross salmon and steelhead bearing waters, and then study the feasibility and most cost-effective biofiltration and bioretention systems in order to install such systems throughout the state to prevent the runoff of 6PPD into salmon and steelhead bearing waters. Ultimately, the SALMON Act can 'kill two birds with one stone' by requiring Caltrans to install stormwater control measures that not only prevent the mortality of salmon through the runoff of 6PPD, but those same stormwater controls would also prevent other pollutants from harming our waterways…"

Arguments in opposition: None on file.

This bill: AB 1798 requires Caltrans to develop a programmatic environmental review process, to study the effectiveness of using bioretention and biofiltration to eliminate the discharge of 6PPD and 6PPD-q into salmon or steelhead trout-bearing surface waters. In combination with DTSC's efforts to regulate 6PPD in motor vehicle tires, the outcomes of this process could help the state reduce the prevalence of 6PPD and 6PPD-q in the environment, and the negative impacts of these contaminants on water quality, aquatic environments, and the Native American tribes that rely on fish for food and cultural practices.

Related legislation:

AB 756 (Papan, 2023). Would have required Caltrans to develop a programmatic environmental review process to prevent 6PPD and 6PPD-q from entering salmon and steelhead trout bearing surface waters of the state; submit a report to the Legislature that includes a map identifying all locations where Caltrans is likely to discharge stormwater into salmon or steelhead trout bearing surface waters of the state; and annually install bioretention and biofiltration controls at 10% of the locations identified in the map for 10 years. This bill was held on the suspense file in the Assembly Appropriations Committee.

AB 2106 (Robert Rivas, 2022). Would have required the State Water Board to modernize its stormwater tracking system, on or before December 31, 2025, and to establish a statewide commercial, industrial, and institutional NPDES order. This bill was vetoed by the Governor.

SB 857 (Kuehl, Chapter 589, Statutes of 2006). Required Caltrans to provide an annual report of progress in locating, assessing, and remediating barriers to fish passage, including salmon and steelhead, to the Legislature through 2020. The bill also requires transportation projects using state or federal funding to assess potential barriers to fish if the project affects a stream crossing.

REGISTERED SUPPORT / OPPOSITION:

Support

7th Generation Advisors
California Coastkeeper Alliance
California Council for Environmental & Economic Balance (CCEEB)
California Environmental Voters (formerly CLCV)
California Trout
City/County Association of Governments of San Mateo County
Clean Earth 4 Kids
Clean Water Action
Cleanearth4kids.org
Defenders of Wildlife
Environmental Action Committee of West Marin (EAC)
Heal the Bay
Humboldt Waterkeeper
Inland Empire Waterkeeper
Los Angeles Waterkeeper
Monterey Bay Aquarium
Monterey Waterkeeper
Orange County Coastkeeper
Planning and Conservation League
Russian Riverkeeper
San Diego Coastkeeper
Santa Barbara Channelkeeper
Save the Bay
Shasta Waterkeeper
Sierra Club California
Solano County Water Agency
South Yuba River Citizens League
The Otter Project
Tuolumne River Trust
U.S. Tire Manufacturers Association
Ventura Coastkeeper
Water Climate Trust
Wishtoyo Chumash Foundation
Yuba River Waterkeeper

Opposition

None on file.

Analysis Prepared by: Naomi Ondrasek / E.S. & T.M. /

Date of Hearing: March 19, 2024

ASSEMBLY COMMITTEE ON TRANSPORTATION

Lori D. Wilson, Chair

ABPCA Bill Id:AB 1798 (

Author:Papan) – As Introduced Ver:January 8, 2024

SUBJECT: Department of Transportation: contaminated stormwater runoff: salmon and steelhead trout bearing surface waters

SUMMARY: Requires the California Department of Transportation (Caltrans) and the State Water Resources Control Board (SWRCB) to develop a programmatic environmental review process to prevent 6PPD and 6PPD-quinone (6PPD-q) from entering salmon and steelhead trout bearing surface waters of the state, including implementation of five pilot projects. Specifically, this bill:

1. Defines the following terms:
2. “6PPD” as the chemical compound N-(1,3-Dimethylbutyl)-N′-phenyl-p-phenylenediamine commonly contained in motor vehicle tires;
3. “6PPD-quinone” means the reaction product of 6PPD that is acutely toxic to aquatic life;
4. “Biofiltration” means the effect of vegetated treatment facilities that reduce stormwater pollutant discharges by intercepting rainfall on vegetative canopy, and through incidental infiltration or evapotranspiration, and filtration;
5. “Bioretention” means the effect of engineered facilities that store and treat stormwater by passing it through a specified soil profile, and either retain or detain the treated stormwater for flow attenuation;
6. “Consultation” means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement. Consultation between government agencies and Native American tribes shall be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation shall also recognize a tribe’s potential needs for confidentiality with respect to places that have traditional tribal cultural significance; and,
7. “Tribal community” means a community within a federally recognized California Native American tribe or nonfederally recognized Native American tribe on the contact list maintained by the Native American Heritage Commission for the purposes of Chapter 905 of the Statutes of 2004.
8. Requires Caltrans and SWRCB to seek assistance and expertise of the States of Washington and Oregon in the development of the programmatic review process.
9. Requires SWRCB to determine the following parameters for Caltrans’s programmatic environmental review process: (1) the frequency and timing for sampling for a qualified storm event; (2) monitoring and reporting protocols; (3) the specific project location for each County; (4) all other information and data deemed necessary to inform future stormwater permit reissuances.
10. Requires Caltrans’ 6PPD and 6PPD-quinone programmatic environmental review process to include: (1) no later than December 31, 2026, five pilot projects, one each in the Counties of San Mateo, Contra Costa, Sonoma, Humboldt, and Nevada, to study the effectiveness and cost effectiveness of installing and maintaining bioretention and biofiltration comparatively along department rights-of-way to eliminate the discharge of 6PPD and 6PPD-q into surface waters; (2) a map of all locations where Caltrans is likely to discharge stormwater into salmon or steelhead trout bearing surface waters, including an overlay of salmon and steelhead fishery information, areas of high vehicle miles traveled, and specific drainage outlets or other likely discharge points for each location; and (3) a strategy to eliminate discharge of 6PPD and 6PPD-q from Caltrans facilities by December 31, 2037, including considerations of cost-savings through implementation of existing total daily maximum load projects and planned projects where biofiltration or bioretention could effectively be implemented to control 6PPD and 6PPD-q. The pilot program would also evaluate the effectiveness of these facilities to control microplastics discharge, including tire wear particles, and other pollutants as deemed appropriate by the SWRCB, from state highways into surface waters.
11. Requires Caltrans to provide consultation on a government-to-government basis with tribal communities, as appropriate, in order to allow tribal officials the opportunity to provide meaningful and timely input in the development of the department’s strategy to eliminate 6PPD and 6PPD-q from all salmon and steelhead treat bearing surface waters of the state.
12. Requires all information provided to SWRCB by Caltrans to be made publicly available through the SWRCB’s stormwater data collection system.

EXISTING LAW:

1. Establishes the State’s role in transportation to implement and maintain a state highway system which supports the goals and priorities determined through the transportation planning process, which is in conformity with comprehensive statewide and regional transportation plans, and which is compatible with statewide and regional socioeconomic and environmental goals, priorities and available resources. (Government Code 14000.5)
2. Establishes Caltrans and provides that it has full possession and control of all state highways and property and rights in property acquired for state highway purposes. (Streets and Highways Code (SHC) 90)
3. Requires Caltrans to prepare an annual report to the Legislature describing the status of progress in locating, assessing, funding, and remediating barriers to fish passage, and requires an assessment of potential barriers to fish passage prior to commencing project design. (SHC 156, et seq.)
4. Establishes the federal Clean Water Act to regulate discharges of pollutants into the waters of the United States and to regulate quality standards for surface waters. (33 United States Code (U.S.C.) §125, et seq.)
5. Establishes the National Pollutant Discharge Elimination System (NPDES) permit program requiring the State Water Board and the nine California Regional Water Boards to prescribe waste discharge requirements which, among other things, regulate the discharge of pollutants in stormwater, including municipal stormwater systems. (33 U.S.C. §1342)

FISCAL EFFECT: Unknown

COMMENTS: Salmon are central to California’s ecology and economy, as well as the cultures and religions of Indigenous peoples along the Pacific Coast. Salmon and other salmonid species are migratory fish, moving from large salt- or freshwater bodies to smaller freshwater streams in order to reproduce. Over the last two centuries, salmon populations have declined due in part to changes in water quality and infrastructure that obstruct their annual migrations, or “runs”.

In the Puget Sound region of the Pacific Northwest, Coho salmon migrating through restored urban watersheds contaminated with stormwater runoff have been plagued by recurrent instances of urban runoff mortality syndrome, with up to 90% of salmon in a given run dying before they can spawn. In 2020, researchers identified 6PPD-q as the stormwater pollutant driving these mortality events, demonstrating its acute lethality to Coho salmon. 6PPD-q also appears to be toxic to other salmonid species, including Chinook salmon and steelhead trout, to a lesser degree.

6PPD-q is a byproduct of 6PPD, an additive that protects vehicle tires from degradation caused by atmospheric ozone exposure. 6PPD protects tires by reacting with ozone instead, forming 6PPD-q as a result. When tires make contact with the road, tire residues containing 6PPD and 6PPD-q are worn off. These tire wear particles are washed into waterways via stormwater runoff.

Currently, federal law requires Caltrans to implement stormwater pollutant control measures to address its contribution in degrading the water quality of the receiving waters. Stormwater runoff discharges from roads and other facilities managed by Caltrans are regulated under the NPDES program. The SWRCB oversees Caltrans’s compliance with its statewide stormwater discharge permits, ensuring that Caltrans’s discharges do not exceed total maximum daily loads (TMDLs) of certain pollutants. Neither 6PPD nor 6PPD-q are currently listed in Caltrans’s statewide stormwater runoff permit.

Installation of biofiltration and bioretention systems has been shown to reduce occurrence of urban runoff mortality syndrome. In fact, Caltrans’s Stormwater Management Plan lists biofiltration and detention devices as approved best management practices for managing stormwater discharges, with biofiltration described as a “fiscally reasonable and technically feasible” approach to reducing stormwater pollution. More recent studies have confirmed that 6PPD-q and other harmful contaminants like microplastics can be captured by green infrastructure such as vegetation, sedimentation, or soil before they escape into the environment.

According to the author, “We must take action to preserve the health and safety of rivers and streams in order to build a strong, safe, and sustainable future for Californians everywhere. In doing so we must address the many dangers facing our waterways including micro-particle pollutants and toxic stormwater runoff that threaten native species and aquatic ecosystems. One such pollutant, known as 6PPD, is an emerging toxin found in vehicle tires, that’s alarming scientists due to the extremely dangerous impact that it has on native salmon and trout populations in California surface waters. Fortunately, there are stormwater management practices that are readily available to effectively treat the runoff of 6PPD which helps reduce toxic chemical exposure threatening salmon throughout the state. Therefore, I am proposing Assembly Bill (AB) 1798 which will require the Department of Transportation to develop and implement a strategy to eliminate 6PPD from stormwater discharges into our California aquatic systems. With this bill, California will get in front of the problem and be one step closer towards preserving the health and wellness of our natural water system.”

Committee comments: This bill requires Caltrans and SWRCB to establish a programmatic environmental review process, including implementing five pilot projects to study to the effectiveness and cost effectiveness of biofiltration and bioretention systems in reducing 6PPD and 6PPD-q in toxic stormwater runoff, as well as preparing a map indicating locations of likely Caltrans discharge into salmon and steelhead bearing waters and a strategy to reduce 6PPD and 6PPD-q discharge by 2037. In contrast to AB 756 (Papan of 2023), this bill would not mandate statewide installation of biofiltration or bioretention systems.

At this time, Caltrans has not taken any actions specifically to reduce the discharge of 6PPD-q into waters of the state. Although green infrastructure is being incorporated into newer construction projects, many existing state-owned highways and municipal roads do not have biofiltration or bioretention systems to manage stormwater. According to the Department of Toxic Substances Control, California waterways contain 6PPD-q at concentrations known to be lethal to coho salmon. As such, existing catchment systems may be insufficient to control 6PPD-q contamination. It remains unclear whether any stormwater infrastructure upgrades or retrofits planned by Caltrans would sufficiently mitigate 6PPD-q contamination of salmon- and steelhead-bearing waters.

Installing new biofiltration and bioretention systems will likely be of significant cost to Caltrans. Caltrans’s funding for stormwater management is primarily derived from fuel tax revenues. According to a 2024 report by the Legislative Analyst’s Office, gas and diesel tax revenues are expected to decline with increasing adoption of zero-emission vehicles. This may limit available funding for Caltrans’ stormwater management in the future.

The proposed pilot studies would aid development of a strategy to upgrade stormwater infrastructure in a way that is cost-effective for Caltrans, and most impactful for improving water quality for salmon. As an example, Washington State Department of Transportation is leveraging resources allocated for existing transportation improvement projects to install biofiltration systems at the same time, and focusing on locations where pre-spawn mortality events have been documented or where vulnerable habitats intersect with transportation infrastructure. Similarly, the pilot study could help Caltrans to identify when and where it might be suitable to partner with local municipalities and regional water quality control boards to manage stormwater runoff.

Although efforts are underway at the federal and state level to regulate the use of 6PPD in vehicle tires, 6PPD-laced tires will continue to contribute to contamination of California’s waterways for many years to come. In the interim, it will be important for SWRCB to assess this relatively new toxin, and for Caltrans to work with SWRCB to help to determine the best way to minimize negative impacts of 6PPD-q and microplastics while our understanding of these contaminants evolves and regulations are developed.

Double Referral: This bill is double referred to the Assembly Environmental Safety and Toxic Materials Committee, and will be heard by that Committee as it relates to issues under its jurisdiction.

Previous legislation:

AB 756 (Papan of 2023) would have required Caltrans to establish an environmental review process including development of (1) a pilot project to study effectiveness and cost of installing bioretention and biofiltration systems along Caltrans rights-of-way; (2) a map of stormwater discharge points of interest along Caltrans rights-of-way; and (3) strategy for eliminating 6PPD and 6PPD-q runoff. The bill would also have required annual installation of bioretention and biofiltration controls at all locations identified in the map and strategy over at period ten years. Held in Assembly Appropriations Committee.

SB 857 (Kuehl), Chapter 589, Statutes of 2006, required Caltrans to provide an annual report of progress in locating, assessing, and remediating barriers to fish passage, including salmon and steelhead, to the Legislature through 2020. The bill also requires transportation projects using state or federal funding to assess potential barriers to fish if the project affects a stream crossing.

SB 1263 (Portantino), Chapter 609, Statutes of 2018 requires the Ocean Protection Council to adopt and Implement a Statewide Microplastics Strategy to address microplastic materials that pose an emerging concern for ocean health.

REGISTERED SUPPORT / OPPOSITION:

Support

7th Generation Advisors
California Coastkeeper Alliance
California Trout
City/County Association of Governments of San Mateo County
Clean Water Action
Defenders of Wildlife
Environmental Action Committee of West Marin (EAC)
Humboldt Waterkeeper
Inland Empire Waterkeeper
Los Angeles Waterkeeper
Orange County Coastkeeper
Planning and Conservation League
Russian Riverkeeper
San Diego Coastkeeper
Santa Barbara Channelkeeper
Save the Bay
Solano County Water Agency
South Yuba River Citizens League
The Otter Project
Tuolumne River Trust

U.S. Tire Manufacturers Association
Water Climate Trust
Yuba River Waterkeeper

Opposition

None on file

Analysis Prepared by: Stephanie Choing / TRANS. / (916) 319-2093