Monthly newsletter Material Concerns: Legal Updates on Substances of Emerging Concern keeps clients informed on the latest legal, regulatory and scientific developments related to substances of emerging concern. Each issue delivers concise, actionable insights to help companies navigate the evolving landscape of environmental law.

EPA Poised To Approve Incineration As PFAS Destruction Method In Upcoming Guidance

By Partner Jennifer Hackman

The U.S. Environmental Protection Agency (EPA) is preparing to update its Interim Guidance on the destruction and disposal of per- and polyfluoroalkyl substances (PFAS) and PFAS-containing materials. According to a September EPA report, hazardous waste incineration can achieve near-complete destruction of PFAS compounds. Destruction and removal efficiencies ranged from 99.95% to 99.9999%, with low to non-detectable emissions of volatile fluorinated compounds, positioning incineration as a viable option for managing PFAS waste. EPA’s Interim Guidance is expected in spring 2026.

While EPA cannot endorse a specific treatment method, its forthcoming guidance will incorporate these findings, signaling that incineration may be considered effective under appropriate conditions. The agency stresses that site-specific validation remains essential to confirm performance and prevent formation of products of incomplete destruction.

This development is particularly significant for entities managing PFAS waste under The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which now designates PFOS and PFOA as hazardous substances. Effective destruction methods can help mitigate long-term liability risks. EPA is also expected to release the results of additional PFAS studies, including research on municipal waste-to-energy facilities, in early 2026.

States have also begun exploring PFAS incineration as a potential disposal method. The State of Washington recently opted to incinerate PFAS-containing firefighting foam after evaluating alternatives. However, environmental groups continue to raise concerns about incomplete destruction and residual contamination.

EPA’s updated guidance will provide the latest scientific information on PFAS destruction technologies, including incineration, but will not impose regulatory requirements. Stakeholders should monitor these developments closely and consider whether incineration should be integrated into PFAS waste management strategies, subject to facility-specific testing and compliance with RCRA.

For more details, see EPA’s PFAS destruction report titled “PFAS Destruction by a Hazardous Waste Incinerator: Testing Results.”

EPA Again Extends Deadline To Propose Enforceable National Drinking Water Standards for Perchlorate

By Associate Joe Zaleski 

The U.S. Environmental Protection Agency (EPA) has again extended its deadline from November 21, 2025, to January 2, 2026, to issue a proposed rule setting a Maximum Contaminant Level Goal (MCLG) and Nationwide Primary Drinking Water regulations for the chemical perchlorate. The November 21 deadline was established in a 2016 consent decree between the Natural Resources Defense Council (NRDC) and EPA. EPA informed the court on November 21 that it had reached an agreement with NRDC to extend the rulemaking deadline to January 2, 2026, in light of the recent federal government shutdown that lasted from October 1 until November 12.

According to EPA, perchlorate is “commonly used in solid rocket propellants, munitions, fireworks, airbag initiators for vehicles, matches, and signal flares. Perchlorate may occur naturally, particularly in arid regions such as the southwestern United States and is found as an impurity in hypochlorite solutions used for drinking water treatment and in nitrate salts used to produce nitrate fertilizers, explosives, and other products.” 

EPA has been considering nationwide drinking water standards for perchlorate since 2011, when the agency determined it had the authority to regulate the chemical under the federal Safe Drinking Water Act. This determination was based on EPA’s finding that perchlorate may have an adverse effect on human health (specifically its interference with the thyroid hormone synthesis); that perchlorate occurs and/or has a substantial likelihood of occurring in public water systems with frequency and at levels of concern for public health; and that based on then-best available peer reviewed science EPA could meaningfully reduce public health risks from perchlorate in public water systems.

In June 2019, EPA proposed a regulation setting the enforceable Maximum Contaminant Level (MCL) and the health-based MCLG at 56 µg/L [note that µg/L are frequently referred to as “parts per billion”]. EPA did not finalize those proposed perchlorate standards and instead in July 2020 proposed to rescind the 2011 regulatory authority determination. In 2023, the U.S. Court of Appeals for the District of Columbia Circuit held that EPA lacked authority to rescind the 2011 regulatory authority determination, forcing the agency to proceed with a national drinking water rulemaking proposal as required by consent decree in the separate SDNY litigation (D.C. Circuit No. 20-1335).

At present, it is unclear what levels (both enforceable and not) EPA will ultimately propose for perchlorate in the forthcoming rulemaking. In EPA’s 2019 proposal, although the agency ultimately proposed enforceable standards at 56 µg/L, it also took comment on proposals to regulate perchlorate in drinking water at alternative levels of 18 µg/L and 90 µg/L.
 
In the absence of nationwide drinking water standards set by EPA, some states have already established their own enforceable drinking water standards for perchlorate. Massachusetts set a first-in-the-nation enforceable MCL of 2 µg/L and California has set an enforceable MCL of 6 µg/L (and it is currently reviewing whether to propose a lower MCL in the state). Other states have set action levels, health-based guidance, and non-enforceable goals for perchlorate in drinking water. 

Behavioral Study Assesses Rise in Nuclear Verdicts

By Associate Jacob Taylor

Nuclear verdicts—exceptionally high jury awards, typically exceeding $10 million—are becoming increasingly common across the United States. Historically, increases in jury verdicts have been attributed to economic factors such as wage inflation, rising medical costs and Consumer Price Index growth. Today, behavioral forces like plaintiff’s lawyer tactics, shifting jury attitudes and expanding theories of liability are widely recognized as the predominant drivers of escalating awards.  

Swiss Re recently quantified these behavioral dynamics in its 2025 Behavioral Social Inflation Study. The survey, conducted among a nationally representative sample of 1,150 adults, utilized randomized legal simulations to assess attitudes toward litigation, damages and corporate accountability. The findings reveal several notable trends, including heightened expectations for punitive damages, increased skepticism toward large corporations and a growing willingness among jurors to award higher compensation in cases involving perceived misconduct.

Public perceptions about litigation itself are also changing. Only 56% of respondents now believe there are too many lawsuits in the United States, down significantly from 90% in 2016.  Similarly, 76% of respondents believe that awarded damages are too low or about right, suggesting jurors may be predisposed or acclimated to award larger sums. 

Large corporations face heightened vulnerability. Nearly 90% of respondents agreed that corporations prioritize profit over safety. Public support for punitive damages remains steady, with 76% of respondents viewing them as the best deterrent against corporate misconduct.  Strikingly, 42% of respondents believe that corporations should cover medical expenses even when not directly at fault—an indication that jurors may be inclined to impose liability regardless of causation.  

The practice of suggesting specific damages amounts—commonly referred to as anchoring—emerged as a highly effective mechanism for constraining excessively large awards. In identical scenarios, respondents exposed to a $100 million plaintiff demand awarded, on average, $17 million more than those presented with a $5 million plaintiff anchor. Defense counter-anchors proved effective, reducing average awards by 40 to 50%, though they cannot eliminate the risk of nuclear verdicts altogether.  

The study confirmed long-standing beliefs that demographic factors significantly influence jury decision-making. Variables such as political affiliation, age and income were shown to correlate with damages assessments. For example, respondents identifying as Democrats awarded damages between 25% and 65% higher than their Republican counterparts. Additionally, more than 80% of participants under the age of 40 indicated that current damages awards are either too low or appropriately calibrated. Lower-income individuals also demonstrated a stronger propensity to favor litigation and higher compensation levels, underscoring the role of socioeconomic and ideological perspectives in shaping jury outcomes. 

EPA Proposes Updates To PFAS Reporting Requirements Under TSCA

By Partner Christopher Sorenson

On November 10, 2025, the U.S. Environmental Protection Agency (EPA) announced proposed changes to its reporting requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). These changes aim to make compliance more practical for businesses while ensuring that regulators receive data necessary to regulate these compounds under the TSCA.

In 2023, EPA finalized a one-time PFAS reporting rule under TSCA Section 8(a)(7), requiring manufacturers and importers to report data on PFAS produced or imported between 2011 and 2022. While intended to improve transparency, the rule imposed significant compliance costs—estimated at nearly $1 billion—without clear implementation standards. The new proposal seeks to reduce unnecessary burdens while maintaining robust data collection by implementing the following changes:

1. Exemptions for Low-Risk Activities: Reporting would no longer be required for PFAS present in mixtures or products at concentrations of 0.1% or lower, imported articles, certain byproducts, impurities, research and development chemicals, and non-isolated intermediates. With respect to imports, the exemption applies specifically to PFAS imported as part of an “article”—which TSCA defines as a manufactured item with a specific shape or design whose function depends on that shape/design and which does not change chemical composition during use (e.g., finished goods like electronics, textiles, or machinery parts).
2. Technical Clarifications: EPA plans to refine data fields and correct ambiguities to make reporting clearer and more efficient.
3. Adjusted Submission Period: The current rule requires one-time reporting by manufacturers and importers over a six-month period between April 13, 2026, and October 13, 2026. The proposed change would result in the submission period beginning 60 days after the effective date of the final rule and lasting for an additional three months.

These changes reflect EPA Administrator Lee Zeldin’s commitment to “commonsense regulation” that balances environmental protection with economic practicality. According to Zeldin, the revisions will allow EPA to collect the most relevant PFAS data without imposing “ridiculous requirements on manufacturers, especially small businesses.” 

The next step in the rulemaking process is publication of the proposal in the Federal Register, after which EPA will open a 45-day public comment period under docket #EPA-HQ-OPPT-2020-0549. Stakeholders—including manufacturers, importers, and environmental advocacy groups—are encouraged to provide input on the proposed revisions. 

Climate Law On Pause: Ninth Circuit Hits The Brakes On SB 261

By Associate Nisha Albert

The U.S. Court of Appeals for the Ninth Circuit has issued an order temporarily enjoining enforcement of California’s Senate Bill 261. SB 261 requires companies with annual gross revenues over $500 million to disclose climate-related financial risks and mitigation strategies. The injunction, granted on November 18, delays the law’s January 1, 2026, compliance deadline while the court considers the merits of the case, with oral arguments scheduled for January 9, 2026.

The court declined to enjoin Senate Bill 253, which mandates greenhouse gas emissions reporting for companies with annual gross revenues above $1 billion. Both laws were enacted in 2023 as part of California’s climate accountability package.

The bid to enjoin enforcement of SB 261 and SB 253 was led by the U.S. Chamber of Commerce and other industry groups, who argued that the bills’ disclosure requirements violate First Amendment rights by compelling speech on a “highly contested” issue. Following the Ninth Circuit’s order, the industry groups informed the U.S. Supreme Court that they were withdrawing their November 10 emergency application for the Court to block both SB 261 and SB 253, or to treat the application as a petition for a writ of certiorari before judgment. 

While the injunction affects the immediate timeline for SB 261 compliance, legal experts advise organizations to continue preparations to avoid compressed compliance schedules following the January hearings. The California Attorney General’s Office emphasized that the decision is “preliminary and of limited duration,” expressing confidence in prevailing on the merits. Shook continues to monitor developments closely and recommends businesses maintain readiness for SB 261 compliance despite the temporary pause. 

California Regulators Move Toward Classifying All p,p'-Bisphenol Chemicals As Causing Reproductive Toxicity Under Proposition 65

By Senior Law Clerk Hannah M. Hamblin

A new California initiative aims to classify all p,p'-bisphenol chemicals, including ethers and esters of p,p'-bisphenols, bisphenol AF, bisphenol AP, bisphenol B, and bisphenol Z, as reproductive toxins under Proposition 65. Bisphenol chemicals have been reported in consumer and industrial products including food packaging, medical devices, dishware, laminate, various plastic products and grout. 

California’s Proposition 65 requires, among other things, businesses to provide warnings to consumers regarding exposure to chemicals known to the state of California to cause cancer, birth defects or reproductive harm. Violation of Proposition 65 can result in civil penalties up to $2,500 per violation.

Proposition 65 already regulates BPA (bisphenol A) and BPS (bisphenol S), structurally similar compounds belonging to the bisphenol family. An expanded list of chemicals under Proposition 65 is likely to increase litigation, particularly with private enforcers who accounted for 20% of all notices of violations in 2025. Many of these suits result in settlements where private enforcers routinely take home 25% of the civil penalties imposed. Attorneys routinely recover their fees, and the impacted entities are required to provide compliant warnings or reformulate products at issue.