www.alston.com Toxic (Re)Tort 2026 Q2
2026 Q2 3 2 Rulemakings FEDERAL June 2026: OSHA published a notice announcing 16 proposed rules for respiratory protection requirements for chemical substances, including asbestos, benzene, cadmium, ethylene oxide, inorganic arsenic, lead, methylene chloride, and vinyl chloride. OSHA also reopened the record on its proposal to amend the medical evaluation requirements in the Respiratory Protection Standard for certain types of respirators. May 2026: On May 5, 2026, the EPA published a notice extending the postponement of the effective dates for certain provisions of its December 17, 2024 final rule regulating trichloroethylene (TCE) under Section 6 of the Toxic Substances Control Act (TSCA). Specifically, the conditions imposed on use with TSCA Section 6(g) exemptions are postponed until the conclusion of judicial review. The EPA cited active and ongoing litigation, prior postponements, and a court’s February 11, 2026 order dismissing stay motions without prejudice and issuing a briefing schedule. April 2026: The EPA published its draft Sixth Contaminant Candidate List for drinking water for public comment. The draft includes 75 individual chemicals, four chemical groups—disinfection byproducts, microplastics, PFAS, and pharmaceuticals—and nine microbes. This is the first time the EPA has designated microplastics and pharmaceuticals as priority contaminant groups for potential future regulation under the Safe Drinking Water Act. April 2026: The EPA published a final rule under Section 112 of the Clean Air Act establishing additional emission standards for chemical manufacturing area sources (CMAS). The affected CMAS categories include facilities that use, generate, or produce 15 listed hazardous air pollutants, including metal HAP compounds of arsenic, cadmium, chromium, lead, manganese, and nickel, as well as organic HAPs such as chloroform, methylene chloride, and ethylene dichloride. Key provisions finalized include standards for pressure relief devices and pressure vessels; requirements for electronic reporting of compliance status, performance test reports, and periodic reports; and continuous performance testing of nonflare air pollution control devices. 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 March 2026: The EPA proposed extending several compliance dates for perchloroethylene (PCE) and carbon tetrachloride (CTC) under TSCA: initial monitoring compliance from December 15, 2025 to June 21, 2027; compliance for meeting the existing chemical exposure concentration limit (ECEL), establishing regulated areas, and providing required respiratory PPE from March 13, 2026 to September 20, 2027; and compliance for establishing and implementing an exposure control plan from June 7, 2027 to December 20, 2027. ARKANSAS April 2026: Proposed a rule establishing requirements for leadbased paint activities, including licensing of training providers, contractors, and consultants, and certification of individuals who conduct lead-based paint inspections, risk assessments, and abatements in target housing and child-occupied facilities. It updates dust-lead hazard standards and clearance levels to align with revised EPA standards that became effective in January 2025. The regulation covers work practice standards, notification requirements, record-keeping obligations, and enforcement mechanisms for lead-based paint activities. CALIFORNIA June 2026: Adopted a rule that addresses the California Accidental Release Prevention (CalARP) Program under Title 19 of the California Code of Regulations. It establishes definitions for the CalARP program, sets forth the applicability of the Program 4 Prevention Program to petroleum refineries, and prescribes requirements for employee participation in accidental release prevention activities. It also establishes requirements for conducting hierarchy of hazard control analyses (HCAs) at stationary sources and identifies regulated toxic and flammable substances and their threshold quantities. The rule generally revises and clarifies the definitions of “highly hazardous material,”“process,”“major change,” and “employee representative”; revises and clarifies the requirements pertaining to the HCA; and revises and clarifies how owners and operators must allow for effective participation by employees engaged in accidental release prevention activities. COLORADO May 2026: Proposed a rule establishing Colorado’s lead control program for lead-based paint activities in target housing and child-occupied facilities. Part A addresses lead-based paint activities, including training and certification requirements for individuals and firms conducting inspections, risk assessments, and abatement work. It establishes work practice standards for performing lead-based paint abatement, containment requirements, cleanup procedures, and post-abatement testing. Part B requires contractors to provide lead hazard information pamphlets to owners and occupants before renovating target housing or child-occupied facilities. The regulation implements federal requirements under TSCA and mirrors EPA standards to protect children from lead exposure. CONNECTICUT April 2026: Adopted a rule amending Connecticut’s ambient air quality standards and impact levels for fine particulate matter and sulfur dioxide to align with federal guidance and standards. It modifies the Department of Energy & Environmental Protection’s regulations of emission thresholds for permit applications and establishes updated air quality standards for PM2.5 and sulfur dioxide. GEORGIA March 2026: Proposed amendments to Georgia’s Rules for Air Quality Control to ensure consistency with federal Clean Air Act requirements. It updates various air quality control standards, including volatile organic liquid handling and storage definitions, ambient air quality standards for sulfur dioxide, new source performance standards, emission standards for hazardous air pollutants, combustion equipment requirements, and permit fee structures. The amendments incorporate federal standards by reference and correct typographical errors throughout the rules. MINNESOTA April 2026: Adopted a rule eliminating obsolete regulations for private pest control applicator certification and uses and procedures of certain compounds no longer in use for pest control. The rule eliminates the uses and procedures 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.
2026 Q2 5 4 for the following inorganic arsenical compounds for private application of pest control: sodium arsenite, sodium arsenate, arsenic trioxide, arsenic acid, arsenic pentoxide, sodium fluoroacetate, compound 1080, fluoroacetamide (1081), and phosphorus paste, including any mixture, formulation, dilution, or combination. The adopted rule also eliminates two options private applicators could take to obtain a certification from the Department of Agriculture: using a home study course and being interviewed by the commissioner of agriculture. The department has never used these options for any private applicator in the past, and these options are not in compliance with federal rules. MISSISSIPPI March 2026: Adopted a regulation for the accreditation and certification of asbestos abatement personnel. It establishes requirements for individuals who perform inspections, prepare management plans, and serve as air monitors, contractors, project designers, supervisors, and workers in asbestos abatement projects in public and private elementary and secondary school buildings and in all public and commercial buildings in the state. RHODE ISLAND June 2026: Proposed amendments to regulations of the Department of Environmental Management for the removal of lead-based paint from exterior surfaces. The proposed amendment updates what qualifies as “lead-based.” Under the amendment, lead-based includes any paint or surface coating that contains more than 0.5% lead by weight or equal to 1.0 mg/cm2 by an X-ray fluorescence analyzer. If a paint or surface coating qualifies under this definition as lead-based, then efforts to remove it must abide by procedures further outlined in Section 24 of the rule. UTAH May 2026: Proposed a rule by the Utah Drinking Water Board within the Department of Environmental Quality for the monitoring of lead and copper levels in drinking-water supplies. The proposed rule modifies state regulations by incorporating federal regulations established by the EPA under the Lead and Copper Rule Improvements (LCRI). Specifically, the proposed rule incorporates by reference requirements of 40 C.F.R. Part 141. WEST VIRGINIA June 2026: Proposed an amendment to a rule by the Bureau for Public Health for the childhood lead poisoning screening and identification program. The proposal extends the date of termination from August 1, 2027 to August 1, 2032. Other aspects of the childhood screening program, such as statewide testing for elevated levels of lead in blood levels for children before the age of six, remain unchanged. Key Court Opinions FEDERAL June 25, 2026 | Monsanto Co. v. Durnell, No. 24-1068 (U.S.). The U.S. Supreme Court reversed a Missouri judgment entered on a Roundup failure-to-warn verdict, holding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempted the plaintiff’s state-law claim. The Court reasoned that the claim would require Monsanto to add a cancer warning to EPA-approved Roundup labeling and that state tort duties qualify as “requirements” under FIFRA’s express preemption provision if they impose labeling obligations “in addition to or different from” federal requirements. May 1, 2026 | In re East Palestine Train Derailment, No. 4:23-cv-00242 (N.D. Ohio). The Northern District of Ohio denied Rule 60 motions brought on behalf of certain class members seeking relief from the final settlement approval order and nonenforcement of voluntary personal injury releases. The court held that the movants failed to establish fraud on the court and that Rule 60 could not be used to rescind releases signed in exchange for personal injury/exposure payments, including releases that expressly contemplated unknown future injuries. CALIFORNIA March 27, 2026 | Cox v. Ford Motor Co., 25STCV26203 (Cal. Super. Ct.). The Los Angeles County Superior Court granted Ford’s motion for summary judgment in a mesothelioma action alleging occupational exposure to asbestos-containing automotive friction products. Ford argued that summary judgment should be granted because the plaintiffs had not submitted evidence that they were ever exposed to an asbestos-containing product supplied by Ford. The plaintiffs did not contest that Ford did not supply the asbestos-containing products but instead relied on the theory that Ford may be liable for the asbestos-containing aftermarket gaskets, clutches, and brakes to which Cox was exposed because Ford vehicles were designed to operate with these products. The court rejected this theory. Looking to California precedent, the court ruled that simply being designed to work with asbestos-containing products is not enough because the at-issue products did not require the use of an asbestos-containing product and could function without them. NEW YORK May 26, 2026 | Lotrean v. 3M Co., No. 2024-03189 (N.Y. App. Div.). The New York Appellate Division unanimously reversed the denial of summary judgment for the defendants and dismissed because the plaintiffs failed to establish general causation. The plaintiff alleged that his myelodysplastic syndrome (MDS) was caused by exposure to solvents at his father’s autobody shop. The court held that the plaintiff failed to establish that solvents containing or contaminated with benzene caused MDS. VIRGIN ISLANDS March 24, 2026 | Burt v. Lockheed Martin Corp., No. SX-2021-CV-548 (V.I. Super. Ct.). A construction worker alleged his pneumoconiosis, a latent occupational disease, was caused by exposure to toxic dust during employment at a facility operated by the defendant. The parties cross-moved for summary judgment on the issue of workers’ compensation. The court ruled that the Virgin Islands Workers’ Compensation Act does not apply to former employees alleging a latent disease. As a result, a former worker may bring a claim in tort without being barred by the workers’ compensation exclusivity provisions. WASHINGTON May 18, 2026 | Bauer v. Boeing Co., No. 87593-1-I (Wash. Ct. App.). The Washington Court of Appeals determined that Washington law recognizes a preconception duty of care owed by an employer to the not-yet-conceived offspring of an employee, within the limits of foreseeability. A child of a Boeing employee born with severe congenital defects brought a negligence claim against the defendant for the alleged exposure of the child’s father to volatile organic solvents and heavy metals at a Boeing plant. Boeing moved to dismiss the complaint and the appellate court upheld the denial, holding that the harm to an employee’s future offspring was reasonably foreseeable and the defendant was aware that paternal exposure to chemicals the plaintiff’s father worked with could lead to birth defects. The court further held that the Washington Industrial Insurance Act’s exclusivity provision did not bar the child’s claim because the child’s injuries were separate and distinct from the father’s. WISCONSIN April 15, 2026 | Estate of Lorbiecki v. Pabst Brewing Co., No. 2022AP723 (Wis.). The Wisconsin Supreme Court affirmed a jury verdict against Pabst Brewing Company under the state’s safe-place statute for a steamfitter’s mesothelioma caused by asbestos exposure at Pabst’s brewery. The court held that Wisconsin’s safeplace statute’s heightened duty of care applies even when the injured party was an independent contractor so long as the premises owner retained sufficient control over the place where the work occurred. The court further held that a reasonable jury could have determined from the facts that Pabst retained control over the workplace, subjecting it to the higher standard of care.
2026 Q2 7 6 Title Verdicts & Settlements JUNE 2026 June 30, 2026 | Williams v. Galderma Laboratories L.P., No. 1:24-cv-02222 (N.D. Ill.). An Illinois federal judge granted final approval of a $990,000 settlement of a class action against the manufacturer of Differin acne treatment products. The plaintiff alleged that the products contained possible benzene contamination due to the defendant’s failure to comply with the federal current good manufacturing practice regulations, which was an unfair practice under the Illinois Consumer Fraud and Deceptive Business Practices Act. There were an estimated 844,593 settlement class members who purchased the affected products between 2020 and 2026. June 23, 2026 | Waste Action Project v. Continental Mills Inc., No. 2:26-cv-00051 (W.D. Wash.). A food manufacturing company agreed to pay $900,000 and to implement various forms of injunctive relief to settle a lawsuit filed by an environmental nonprofit alleging that the company violated the Clean Water Act and the terms of its NPDES permit by discharging polluted stormwater into navigable waters surrounding its facility. As part of the settlement, the company will provide copies of its communications with the Washington Department of Ecology each quarter, conduct enhanced monitoring and sampling at the facility’s stormwater discharge points, install pretreatment systems to remove pollutants, and update its stormwater pollution prevention plan. June 22, 2026 | A.O.A. v. Rennert, No. 4:11-cv-00044 (E.D. Mo.). One week before a jury trial was set to begin, the parties filed a joint notice of settlement of all cases in this consolidated litigation that dates back to 2007. The defendants agreed to pay $150 million to resolve claims by more than 1,380 residents of La Oroya, Peru, alleging injuries from a lead smelter’s emissions and water contamination. Missouri-based Doe Run Resources Corporation bought the smelter site in 1997 from the Peruvian government. The plaintiffs claimed that children who lived near the smelter were exposed not only to lead but also to arsenic, cadmium, and sulfur dioxide. June 15, 2026 | Yandell v. Johnson & Johnson, No. 23STCV11850 (Cal. Super. Ct.). A two-month trial against Johnson & Johnson ended in a mistrial when the jury became deadlocked after four days of deliberations. The decedent died of mesothelioma at 65 years old, and her family claimed that the disease was caused by her regular use of talc products. The defense argued that the decedent was exposed to asbestos from her father’s job in the Navy. June 12, 2026 | Pearson v. Amazon Data Services Inc., No. 2:26-cv-00633 (D. Or.). An Oregon federal judge granted preliminary approval of a $20.5 million settlement of a class action alleging that wastewater from Amazon’s data centers contributed to nitrate contamination of the groundwater in the Lower Umatilla Basin in violation of Oregon law and the federal Resource Conservation and Recovery Act. June 9, 2026 | Lozano v. Johnson & Johnson, No. 23STCV16061 (Cal. Super. Ct.). A California jury awarded $32 million to three adult children for their mother’s death from mesothelioma. Johnson & Johnson argued that the decedent’s death was caused by her exposure to asbestos from sources other than its talcum powder products. However, the jury found no fault on the part of the nine nonparties that were listed on the verdict form. June 5, 2026 | Owens v. Johnson & Johnson, No. CIVDS1618507, Tienken v. Johnson & Johnson, No. 18CECG01553, and Williams v. Johnson & Johnson, No. CIVDS1807370 (Cal. Super. Ct.). The second bellwether trial in coordinated proceedings involving claims that Johnson & Johnson’s talcum powder products caused the plaintiffs’ ovarian cancer resulted in a defense verdict. After six weeks of trial, the jury returned a 10–2 verdict in favor of the defendants, finding they were not liable for the deaths of the three bellwether plaintiffs. June 5, 2026 | United States v. Applied Partners LLC, No. 1:25-cr-20850 (E.D. Mich.). A Michigan federal judge ordered that a redevelopment firm must pay a $500,000 criminal fine and serve two years of probation for commencing demolition work at a former automotive plant without proper asbestos remediation. The firm pleaded guilty to violating two provisions of the Clean Air Act (CAA). June 1, 2026 | Behar v. Northrop Grumman Corporation, No. 2:21-cv-03946 (C.D. Cal.). Residents of a Los Angeles suburb reached a $75 million settlement with a leading aerospace company during a class action trial. The plaintiffs alleged that soil and groundwater were contaminated with TCE and PCE from a manufacturing site owned by the company. The settlement will compensate the owners of 3,294 homes for alleged property damage and mitigation measures, but does not release any personal injury claims. MAY 2026 May 27, 2026 | Passmore-Meyer v. Brenntag North America Inc., No. CJ-2022-6281 (Okla. Dist. Ct.). An Oklahoma jury returned a defense verdict in a lawsuit brought by a couple alleging that the 63-year-old wife’s mesothelioma was caused by asbestos-contaminated talc products. The jury found that the evidence did not establish manufacturers’ product liability or negligence against Johnson & Johnson or any of the non-parties and that the plaintiff did not prove that Johnson & Johnson acted with reckless disregard. May 27, 2026 | United States v. KX Wheels, No. 2:26-cv-00231 (E.D. Wash.). A Canadian aftermarket custom wheel and tire distributor, its operating company, and two associated individuals agreed to pay $700,000 in civil penalties and to stop selling, importing, and distributing emissions control defeat products in the United States to settle a lawsuit alleging CAA violations. In the proposed consent decree, the defendants also agreed to destroy existing emissions control defeat products, to end all technical support for such products, and to submit annual reports to the EPA. May 20, 2026 | Heyer v. Vi-Jon LLC, No. 62-CV-25-5182 (Minn. Dist. Ct.). A Minnesota jury awarded $10.2 million to a couple alleging that the 45-year-old husband’s mesothelioma was caused by exposure to asbestos-contaminated talc in the defendants’ body powder products. The plaintiff was also exposed to asbestos through his work as a correctional officer and from the clothing of his father who worked at a power company. May 19, 2026 | Feindt v. United States, No. 1:22-cv-00397 and Hughes v. United States, No. 1:24-cv-00059 (D. Haw.). A Hawaii federal judge approved settlements totaling more than $17 million for 630 plaintiffs in consolidated litigation over groundwater contamination from a jet fuel spill at the Pearl Harbor Naval Base. The judge had also approved settlements totaling $1,588,000 for 119 minor plaintiffs. The plaintiffs brought claims under the Federal Tort Claims Act asserting that government personnel at the fuel storage facility negligently caused jet fuel, additives, and cleaning materials to be released directly into the water line that serves the naval base. These settlements followed the court’s award of damages to 17 adult and minor bellwether plaintiffs in August 2025. MAY 18, 2026 Bayer AG, the parent company of Monsanto, reached settlements with Michigan and Rhode Island to resolve potential claims by the states related to PCB pollution. Monsanto manufactured PCBs for decades before they were banned in 1979. Pursuant to the terms of the settlements, Bayer will pay a minimum amount to each state, with the possibility of additional payments contingent on the outcome of an indemnity lawsuit that Monsanto filed against companies that it says agreed to cover certain liabilities from PCBs. Michigan will receive $108 million, with a possible maximum of $240 million, and Rhode Island will receive $25 million, with a possible maximum of $62.5 million. May 18, 2026 | United States v. Diconia LLC, No. 4:25-cv-00007 (D. Idaho). Two individual defendants agreed to pay a total of $360,000 to settle claims against them for recovery of remediation costs under CERCLA. The individuals arranged for buildings to be demolished at an industrial site following a fire. The EPA received a complaint about the demolition and ultimately spent over $860,000 removing asbestos materials from the site. The government previously obtained a default judgment against the site owner and the parcel of land for nearly $974,000.
2026 Q2 9 8 Title May 13, 2026 | Huertas v. Aeropres Corporation, No. 2:21-cv-20021 (D.N.J.). A New Jersey federal judge granted final approval of a $4.85 million settlement of a class action against the manufacturers of antifungal products that had been recalled due to benzene contamination. More than 1.4 million class members submitted claims after receiving notice of the proposed settlement. May 11, 2026 | Conservation Law Foundation Inc. v. Academy Express LLC, No. 1:20-cv-10032 (D. Mass.). A company that operates a fleet of buses in Massachusetts agreed to pay $5.6 million for pollution mitigation, litigation costs, and attorneys’ fees and to implement a series of antiidling and emissions controls to settle a CAA lawsuit filed by an environmental group alleging violations of state anti-idling regulations. The group claimed that the defendant’s buses emit fine particulates, nitrogen oxides, sulfur dioxide, benzene, formaldehyde, and 40 other kinds of toxic air contaminants that cause or aggravate a variety of health problems. APRIL 2026 April 29, 2026 | United States v. The Kroger Company, No. 1:26-cv-00421 (S.D. Ohio). The United States filed a proposed consent decree to resolve its claims that Kroger improperly handled ozone-depleting refrigerants at some of its stores and manufacturing facilities in violation of the CAA. The grocery store chain agreed to pay a $2.5 million civil penalty and to implement a series of corrective actions, including creating a companywide refrigerant compliance maintenance program, maintaining strict leak-rate performance standards, upgrading its refrigeration systems, and performing ongoing monitoring, reporting, and recordkeeping to ensure compliance with federal regulations. April 28, 2026 | Los Angeles Waterkeeper v. Consolidated Disposal Service LLC, No. 2:25-cv-05527 (C.D. Cal.). A California federal judge entered a consent decree in a lawsuit filed by an environmental nonprofit alleging that the owner and operator of an industrial solid-waste management facility violated the Clean Water Act and its NPDES permit by discharging polluted stormwater into the Los Angeles River. The nonprofit claimed that the levels of total suspended solids, iron, copper, zinc, and other pollutants in the defendant’s stormwater discharge exceeded permitted levels and that the defendant failed to properly monitor, test, or report the pollution. The defendant agreed to pay $116,000 in compliance oversight and mitigation costs and attorneys’ fees and to implement a series of pollution controls to resolve the lawsuit. April 10, 2026 | Maryland Department of the Environment v. Television Tower Inc., No. 24-C-23-002174 (Md. Cir. Ct.). The owner of a broadcast tower and a painting company agreed to pay $2.2 million in penalties to the Maryland Department of the Environment for performing lead paint abatement work without properly containing the hazardous waste. Paint chips from the project were found scattered in the neighborhoods, roadways, gutters, and storm drains surrounding the tower, and testing confirmed that the chips contained lead. April 6, 2026 | Widercrantz v. Amchem Products Inc., No. 190118/2024 (N.Y. Sup. Ct.). Following a 17-day trial, a New York jury awarded $20 million in compensatory damages and $5 million in punitive damages to a 70-year-old man who claimed that his mesothelioma was caused by working with American Biltrite asbestos-containing tiles in the 1970s and 1980s. Science & News EPA Leaves Microplastics Out of New DrinkingWater Testing Requirements July 1, 2026 | Revisions to Establish the Sixth Unregulated Contaminant Monitoring Rule (UCMR 6) for Public Water Systems After previously announcing it would be including microplastics in the latest Unregulated Contaminant Monitoring Rule, the EPA ultimately issued the list of substances to be tested without them. The EPA promulgates the list under the Safe Drinking Water Act every five years and included a number of chemicals, such as certain PFAS, in the latest list. EPA Proposes to Relax Rules Regulating Disposal of Coal Waste April 13, 2026 | Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Legacy/CCRMU Amendments The EPA has proposed revisions to federal regulations governing the disposal of coal combustion residuals. The proposed revisions would ease standards for monitoring and protecting groundwater near some coal ash sites and would reverse Biden-era rules that require the cleanup of entire coal properties rather than just the sites where ash was dumped. Lab Gloves May Be Causing False Positives in Microplastics Studies March 26, 2026 | Avoiding and Reducing Microplastic False Positives from Dry Glove Contact Researchers at the University of Michigan have published a study suggesting that plastic gloves worn by researchers may be causing false positives for microplastics. The gloves release small particles called stearates, which can be mistaken for microplastics. The authors of the study implore other microplastics researchers to take potential lab glove contamination into account in future research. EPA Proposes Reconsideration of Standard for Ethylene Oxide Sterilizers March 17, 2026 | National Emission Standards for Hazardous Air Pollutants: Ethylene Oxide Emissions Standards for Sterilization Facilities Residual Risk and Technology Review Reconsideration The EPA has proposed to repeal the 2024 final rule for the National Emission Standards for Hazardous Air Pollutants (NESHAP) for commercial ethylene oxide sterilization facilities. If finalized as a rule, this action would rescind the 2024 NESHAP requirements, including the requirement to use continuous emission monitoring systems, technology review standards for new aeration room vents, and requirements for permanent total enclosure. Proposed California Bill Would Require HeavyMetals Testing for Protein Products February 11, 2026 | California Senate Bill 1033 The California Senate introduced Senate Bill 1033, which would require manufacturers of protein products to test their products for heavy metals, defined as arsenic, cadmium, lead, and mercury. The first-in-the-nation measure would require the makers of protein products to disclose the results of their testing and would prohibit the sale of noncompliant products. The bill passed the Senate Health and Environmental Quality Committees in spring 2026 but is still held in committee. Expert Decisions Court Partially Excludes Class Certification Experts in TCE Contamination Suit June 4, 2026 | Black v. Union Pacific Railroad Co., No. 6:23-cv-01218 (D. Kan.). The District of Kansas granted in part Union Pacific Railroad’s motion to exclude the plaintiff’s experts offered in support of class certification in a class action alleging trichloroethylene (TCE) groundwater contamination beneath residential properties. The court excluded the portion of the plaintiff’s hydrogeochemist’s opinion that identified a definite number of homes currently at risk for vapor intrusion because he impermissibly relied on another expert’s initial plume map without verifying its methodology and because that map itself was flawed. The court also excluded the plaintiff’s hydrogeologist’s opinion that TCE-contaminated groundwater lay beneath the entire mapped contour area, finding it a mere “tautology” of the flawed initial map and “irrelevant at best.” Fifth Circuit Affirms Rejection of Causation Expert May 27, 2026 | Ruffin v. BP Exploration & Production Inc., No. 23-30854 (5th Cir.). The Fifth Circuit denied rehearing en banc, withdrew its prior opinion, and substituted an opinion affirming exclusion of the plaintiff’s causation expert and summary judgment in favor of BP in a Deepwater Horizon BELO toxic-exposure case. The court rejected a categorical rule requiring a plaintiff’s expert to identify an exact quantitative dose but held the expert’s opinion was inadmissible because it did not reliably connect the plaintiff’s alleged crude oil/PAH exposure to prostate cancer.
11 10 Title Contributors Meaghan Boyd Partner Sarah O’Donohue Counsel Andrew Roberts Senior Associate Shannon Vreeland Senior Associate Kiara Harding Associate Madeline Daniel Associate Jenny Hergenrother Partner Kara McCall Partner Krista Hernandez Counsel Matt Binder Senior Associate Frankie Brown Associate Vickie Rusek Senior Associate Paige Medley Associate Brent Modak Associate
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