www.alston.com Toxic (Re)Tort June 2026 Edition
June Edition 3 2 Rulemakings (State & Federal) DELAWARE February 2026: The Department of Natural Resources and Environmental Control proposed revisions to regulatory requirements for reporting the discharge of a pollutant or air contaminant as mandated in 7 Del. C. Section 6028. The revisions would amend the definitions for a reportable discharge and change certain reportable quantities for discharges of pollutants or air contaminants. February 2026: The Department of Health and Social Services implemented a new regulation governing the use of leadbased paints on outdoor structures. The regulation establishes standards for regulating the use of lead-based paint on outdoor structures and creates an enforcement mechanism to report and fine violators. NEW HAMPSHIRE January 2026: Effective January 1, 2026, Regulation 11460 amended portions of Env-A 1800, Asbestos Management and Control, as part of Rulemaking 2025-216. The amendments update notification and fee provisions under Env-A 1804, revise notification timing requirements for certain demolition activities, and reflect the Department of Environmental Services’ reorganization and modernization of asbestos notification and application forms. OHIO January 2026: The Ohio EPA amended OAC Chapter 3750 by revising the designation of hazardous substances, determination of reportable quantities for hazardous substances, notification requirements for mixtures or solutions, and release notification requirements for radionuclides and solid particles. January 2026: January 16, 2026 amendments to OAC Chapter 3745-51 update the definition of “waste” and related exclusions, revise provisions governing hazardous waste from non-specific sources, and modify the conditional exclusion for Welcome to the Toxic (Re)Tort, your go-to resource for staying informed in the toxic tort space. As the regulatory and litigation landscape continues to evolve, staying informed is not just a strategic advantage—it’s a business imperative. Through the Toxic (Re)Tort Tracker and our quarterly publication, Alston & Bird continues to remain committed to equipping companies with the insights and tools needed to navigate this complex terrain with confidence. We developed and continue this publication based on decades of experience litigating toxic tort cases, which have consistently demonstrated that coordination and collaboration are essential to successful outcomes. Our cohesive team structure reflects and reinforces the core values of the firm—most notably, our commitment to providing constant, proactive attention to our clients’ needs. These guiding principles have shaped a distinct work environment that empowers us to deliver the highest level of service and advocacy. Companies need to be aware of changes in regulations, litigation trends, and case results to ensure they are prepared for these bet-the-company cases. We break down recent developments in: Rulemakings (State & Federal) Key Court Opinions (State & Federal) Verdicts & Settlements Science & News Expert Decisions We hope this resource empowers you to make informed decisions and stay ahead in the complex world of toxic torts. Thank you for allowing us to be your trusted resource, and happy reading. Jenny Hergenrother, Meaghan Boyd, Kara McCall Learn more about Alston & Bird’s Mass Torts & Toxic Torts Team. Overview used, broken cathode ray tubes (CRTs) and processed CRT glass undergoing recycling. The rulemaking also revises applicability determinations and contingency planning and emergency procedures for facilities that generate or accumulate more than 6,000 kg of excluded hazardous secondary materials, aligning Ohio’s hazardous waste regulations with current federal requirements and clarifying management standards for excluded secondary materials. TENNESSEE February 2026: Effective February 8, 2026, new rules in Chapter 0400-15-04 regulate the use of soil excavated from construction sites at other locations and provide a coordinated approach for managing soil that contains, or may reasonably be anticipated to contain, hazardous substances but meets specified contamination criteria, including Category 1 or Category 2 soil. When soil is excavated and used in compliance with Chapter 0400-15-04, it is conditionally exempt from regulation as solid waste under Chapter 0400-11-01. The rule prohibits the off-site use of soil containing polychlorinated biphenyls (PCBs), listed hazardous wastes, or other materials that would otherwise require management under hazardous waste regulations, and establishes definitions, applicability provisions, and responsibilities for soil generators, contractors, and recipients to ensure protective reuse of eligible soils. WISCONSIN May 2026: Effective May 1, 2026, the Department of Natural Resources amended WAC Chapter NR 809 to update and strengthen requirements for the control of lead and copper in public drinking-water systems. Adopted under Clearinghouse Rule CR 25-063 and Board Orders DG-16-23 and DG-04-24, the rule revises state regulations to remain no less stringent than the U.S. Environmental Protection Agency’s revised federal Lead and Copper Rule and Lead and Copper Rule Improvements. Wisconsin’s regulation also addresses corrosion control treatment steps for small, medium, and large water systems, source-water monitoring and treatment, lead service line inventory and replacement requirements, public education and outreach requirements, and monitoring and corrective actions for lead and copper in tap water, including individual tap samples. February 2026: The Department of Safety and Professional Services proposed updates to WAC Chapter SPS 325 and related sections of the Uniform Dwelling Code (Chapters SPS 320–325) and Commercial Building Code (Chapters SPS 361–366) to reflect recent changes in federal standards governing the allowable lead content of plumbing materials and products. In addition to incorporating updated federal lead requirements, the proposal amends and reorganizes existing code language to improve clarity, consistency, and usability for code officials, licensees, and regulated entities. The rule updates are scheduled for publication on June 29, 2026, and scheduled to take effect on September 1, 2026. Key Court Opinions (State & Federal) NINTH CIRCUIT February 24, 2026 | Wells v. BNSF Railway Co., No. 24-4802 (9th Cir.). The Ninth Circuit reversed a jury verdict for plaintiffs who allegedly developed mesothelioma after being exposed to asbestos during BNSF’s transportation of asbestos-containing vermiculite from “the world’s largest vermiculite mine” to its railyard in Libby, Montana, and from there to destinations nationwide. The court held that Montana’s common‐carrier exception applied, which bars the imposition of strict liability for an abnormally dangerous activity if the activity is undertaken pursuant to a public duty imposed on the actor as a common carrier. Because federal law required BNSF to haul the vermiculite, its resulting asbestos dust was a byproduct of its public-duty transport activity. The court found that BNSF was acting as a common carrier and could not be held strictly liable for the abnormally dangerous activity of moving the ore. The Ninth Circuit vacated the strict‐liability judgment and remanded with instructions to enter judgment for BNSF. The Toxic (Re)Tort is published by Alston & Bird LLP to provide a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice on any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.
June Edition 5 4 CALIFORNIA February 17, 2026 | Cadena v. City of San Diego, No. D084784 (Cal. Ct. App.). Employees of the City of San Diego sued the city and city officials for asbestos exposure in the workplace. The California Court of Appeal affirmed the district court’s grant of summary judgment to the city, finding that workers’ compensation was the exclusive remedy available to the employees. The court rejected the employees’ argument that their injuries fell within an exception to workers’ compensation claims if the injury was aggravated by an employer’s concealment of the hazard, finding that actual knowledge of the hazard was required and it was not enough to submit evidence that may show they should have known of the hazard. February 3, 2026 | Faulk v. General Electric, No. 2:23-cv-05132 (C.D. Cal.). In this “take-home” asbestos case, the plaintiffs sued for damages related to the decedent’s mesothelioma allegedly caused by exposure to asbestos brought home on her father’s clothing from working at Lockheed’s aerospace plant in the 1960s and 70s. Lockheed moved for summary judgment on causation. The court held that the plaintiffs could not support a reasonable inference of the decedent’s father’s exposure to asbestos from Lockheed based on purely circumstantial proof (e.g., the father’s job title, years of service, and industry studies), and there was no evidence the father actually worked with asbestos attributable to Lockheed. The court remarked that the plaintiffs’ experts’ generalized opinions that aircraft manufacturers used asbestos broadly were not tied to the specific nature of the father’s work at Lockheed. The court held that this at best showed a “possibility” of exposure, not that the exposure was a substantial contributing factor. The court granted summary judgment, dismissing the claims against Lockheed. FLORIDA March 5, 2026 | Maxner v. American Contract Systems Inc, No. 2:25-cv-00476 (M.D. Fla.). The plaintiff alleged that he inhaled ethylene oxide emitted from a medical-supply sterilization facility next to his workplace and asserted strict liability claims under the Florida Water Quality Assurance Act. The court granted the defendant’s motion to dismiss the strict liability claim, ruling that the act required a pollutant to affect or be present on land or in water and that allegations of purely airborne ethylene oxide emissions, without allegations that the substance reached land or water, were not enough to trigger statutory strict liability. NEW YORK February 3, 2026 | Drag v. Rector, Church-Wardens & Vestrymen of Trinity Church in the City of N.Y., No. 518761/2018 (N.Y. Sup. Ct.). The Kings County Supreme Court granted summary judgment to a property owner against the restoration worker plaintiffs, dismissing New York Labor Law claims of lead exposure stemming from window restoration work at a chapel. The court found that the defendants did not exercise supervisory control over the manner and means of the work on the property, and there was no dangerous condition on the property that would impose liability because the removal of the lead paint was an integral condition of the work the plaintiffs were hired to do. Verdicts & Settlements MARCH 2026 March 10, 2026 The U.S. Department of Justice announced in a press release that it has approved more than 2,500 settlement offers totaling approximately $708 million through the Elective Option program to resolve claims filed under the Camp Lejeune Justice Act. The Elective Option program is a voluntary U.S. Department of Justice program that claimants may choose instead of litigation to resolve their claims for injuries from exposure to contaminated drinking water at a Marine Corps base camp and an air station in North Carolina. Payments to individual claimants range from $100,000 to $550,000. FEBRUARY 2026 February 27, 2026 | United States v. Entergy Louisiana LLC, No. 4:25-cv-01400 (E.D. Tex.). Several utility companies responsible for the release of PCBs and other hazardous substances from the site of a former transformer salvage business in Texas agreed to pay more than $1 million to settle a CERCLA lawsuit. A federal court in Texas entered the consent decree following a 30-day public comment period during which no comments were received. February 27, 2026 | Stephenson v. PK&P Investment Co., No. 25STCV11597 (Cal. Super. Ct.). A California jury awarded over $33 million in compensatory damages to an 80-year-old former Hollywood cameraman who claimed that his mesothelioma was caused by exposure to asbestos-insulated cables and other components in lighting equipment that he worked around during his career in film production. The jury found that defendant Mole-Richardson, which manufactured and supplied the lighting equipment, acted with malice and was 100% liable for the plaintiff’s injuries. The case resolved before the punitive damages phase of the trial was completed. February 13, 2026 | Emerson v. Johnson & Johnson, No. 190509334 (Pa. Ct. C.P.). A Pennsylvania jury awarded $50,000 in compensatory damages and $200,000 in punitive damages to plaintiffs who alleged that their mother’s death from ovarian cancer was caused by decades of using asbestos-contaminated talc for feminine hygiene purposes. February 6, 2026 | Alvarez v. Prologis Inc., No. 21STCV38929 (Cal. Super. Ct.). A California jury awarded more than $2.8 million in compensatory damages and $6 million in punitive damages to 24 bellwether plaintiffs alleging injuries from airborne exposure to hydrogen sulfide when wooden pallets of highly flammable and toxic hand sanitizer, antibacterial wipes, and other products caught fire in a storage warehouse. The plaintiffs contended that the ethanol-based products and fire debris, combined with firefighting water, flooded a nearby water channel with organic material that formed hydrogen sulfide gas and polluted the city of Carson for months. February 5, 2026 | Anderson v. BorgWarner Morse Tec Inc., No. 21STCV21966 (Cal. Super. Ct.). A California judge entered a default judgment of more than $24.6 million against Martin Himmel Inc. after the company’s counsel withdrew from representation and the court struck its answer in the case. The plaintiff alleged that he developed mesothelioma from exposure to asbestos in several sources, including Gold Bond powder. Martin Himmel owned the Gold Bond product line from 1990 to 1996. February 4, 2026 | California Department of Toxic Substances Control v. Jim Dobbas Inc., No. 2:14-cv-00595 (E.D. Cal.). Following a bench trial, a California federal judge ordered a former operator of a wood-preserving facility to pay more than $3.3 million in CERCLA costs, plus more than $1 million in interest and attorneys’ fees, to the state entities that oversaw the cleanup of contamination at the site. The state entities alleged that operations at the facility released numerous hazardous substances, such as arsenic and chromium, that required extensive remediation of the soil and groundwater. JANUARY 2026 January 15, 2026 | Morris v. Goodyear Tire & Rubber Co., No. 2025-02421 (La. Civ. Dist. Ct.). Following a bench trial, a Louisiana judge entered a judgment of more than $12.5 million in compensatory damages for a plaintiff alleging that his mesothelioma was caused by exposure to asbestos in brake products. The plaintiff worked as an office manager at a Goodyear predecessor in the 1970s and claimed that he walked through the service area and often stood next to the mechanic during brake jobs. The judge found that Goodyear never warned the plaintiff of the potential exposure to asbestos and was negligent and strictly liable in causing his disease.
June Edition 7 6 Title Science & News Alabama Legislature Latest to Seek to Limit Environmental Regulations February 19, 2026 | Following Trump’s Lead, Some GOP States Seek to Limit Environmental Regulations Alabama enacted a measure that would prohibit state agencies from setting limits on releases of pollutants and hazardous substances unless a “direct causal link” has been shown between those releases and “manifest bodily harm” to human beings. Alabama’s action comes in the wake last year of Tennessee’s passage of a similar law and an executive order by Indiana Governor Mike Braun restricting that state’s ability to restrict the release of hazardous substances. A similar bill has also been proposed in Utah. EPA Grants Further Extension to Comply with TCE Rule February 18, 2026 | Extension of Postponement of Effectiveness for Certain Provisions of Trichloroethylene (TCE); Regulation Under the Toxic Substances Control Act (TSCA) The EPA announced a further 90-day extension, to May 18, 2026, of the conditions governing the exempted uses of trichlorethylene (TCE), a chemical solvent most commonly used as a degreaser. In announcing its decision, the EPA cited the need for fairness given the ongoing litigation over the Biden-era rule that prohibits most uses of TCE. That rule provides for a number of exempted uses of TCE, such as in certain laboratory conditions when certain worker protections are met. The extension applies to the rules governing those exempted uses. EPA Issues Final TSCA Risk Evaluation for Five Phthalates January 6, 2026 | Butyl Benzyl Phthalate (BBP), Dibutyl Phthalate (DBP), Dicyclohexyl Phthalate (DCHP), Diethylhexyl Phthalate (DEHP), and Diisobutyl Phthalate (DIBP); Risk Evaluation Under the Toxic Substances Control Act (TSCA); Notice of Availability The EPA announced final risk evaluations under the Toxic Substances Control Act (TSCA) for butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), dicyclohexyl phthalate (DCHP), diethylhexyl phthalate (DEHP), and diisobutyl phthalate (DIBP). Specifically, the EPA found that these five phthalates— chemicals often used to make plastics more flexible and durable—pose an “unreasonable risk to human health and/or the environment driven by specific conditions of use.” Under TSCA, the EPA must now begin risk management actions for these chemicals. The EPA clarified that its findings relate to worker exposure and not to exposure from consumer products. Expert Decisions Georgia Court Excludes EtO Experts’ Opinions March 31, 2026 | Mutz v. Sterigenics U.S. LLC, No. 20-A-3448 (Ga. St. Ct.). After remand from the Georgia Court of Appeals, the trial court held that ethylene oxide (EtO) is a Category 2 substance, meaning the medical community does not routinely and widely recognize that EtO is toxic and causes the types of harm alleged by the plaintiffs (e.g., lymphohematopoietic and breast cancers). Generally, “when assessing the toxicity of a Category 2 substance, a dose-response relationship is required to establish general causation.”The court held that the plaintiffs’ experts’ general causation opinions were inadmissible because they had not demonstrated a threshold dose-response relationship. Because the plaintiffs had no expert support for their claims, the court also granted the defendants’ motion for summary judgment. Court Narrows Expert Testimony in Baby Food Suit February 27, 2026 | In re Baby Foods Products Liability Litigation, No. 3:24-md-03101 (N.D. Cal.). The Northern District of California granted in part the defendants’ motion to exclude experts in a case alleging health effects stemming from consumption of allegedly contaminated baby food. The court stated that the plaintiffs did not identify any studies on whether baby food could cause the health effects at issue, noting that the plaintiffs’ experts improperly extrapolated from other studies. Additionally, the court found that aspects of one expert report were not reliable since they were not based on a scientific method. Another expert’s report was based on “hypothetical consumption” of the baby food, which also rendered it unreliable under Rule 702. Meaghan Boyd Partner Sarah O’Donohue Counsel Shannon Vreeland Senior Associate Kiara Harding Associate Madeline Daniel Associate Jenny Hergenrother Partner Kara McCall Partner Matt Binder Senior Associate Frankie Brown Associate Vickie Rusek Senior Associate Charlie Shorey Associate Paige Medley Associate Contributors
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