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Brian Gross has an exceptional track record of finding client-oriented solutions to complex litigation issues. Drawing on two decades of courtroom experience, he handles a broad spectrum of litigation, including products liability, food and beverage liability claims, asbestos and other toxic tort litigation, pharmaceutical and medical device claims, environmental litigation, as well as trucking claims, general liability issues, and business disputes for clients across the United States. Whether he is trying an individual case or managing national litigation, clients trust Brian to keep their best interests firmly in his sights.

For many years, per- and polyfluoroalkyl substances (PFAS) have been ubiquitous in American commerce and industry. That ubiquitous use, and the fact that PFAS chemicals do not break down in the environment, has led to the presence of PFAS in groundwater to varying degrees throughout the country. As a result, the US Environmental Protection Agency (EPA) has turned its full attention to PFAS regulation. In fact, EPA issued a PFAS Strategic Roadmap that sets timelines by which EPA plans to take specific actions, as it states, “to safeguard public health, protect the environment, and hold polluters accountable.” Pursuant to the Roadmap, the EPA issued interim health advisories on June 15, 2022, in which they advised that the safe lifetime drinking level for PFAS chemicals are as low as .004 parts per trillion (ppt) for perfluorooctanoic acid (PFOA) and .02 ppt for perfluorooctane sulfonic acid (PFOS). To put that in context, one should understand that a level of .004 ppt equates to 1 drop out of 4.5 billion gallons of water., and that such miniscule levels are undetectable by current testing instruments, essentially making it zero.

According to the EPA, its interim health advisories are determined based on review of all available science by the EPA’s Science Advisory Board. It is unclear, however, on what the Science Advisory Board relied in reaching its conclusions concerning the level of exposure at which to set the advisory limit, as there is not only no current epidemiological studies that demonstrate that PFAS chemicals actually cause any adverse health consequences, there are certainly no scientific studies that support a level of exposure near zero.

The EPA’s interim health advisories are not regulations, and are not enforceable. They do, however, portend the maximum contaminant levels (MCLs) that the EPA is considering and may eventually enact for drinking water. The EPA is scheduled to issue its proposed regulatory level in fall 2022—only months away—and the rule is expected to go into effect in 2023.

In setting the MCLs, the EPA attempts get the MCL as close to the health advisory limit as feasible. Unlike with health advisories, though, the EPA must prepare a health risk reduction and cost analysis (HRRCA), which takes into account the quantifiable and non-quantifiable benefits that will result from the proposed standard, as well as the increased costs that will result from the proposed drinking water standard. It does not, however, require EPA to consider the benefits in the use of PFAS, including improved safety, durability and fuel efficiency in applications such as cars, airplanes, buildings and electronics, not to mention firefighting where its use is still mandated.

Should the EPA enact drinking water standards near the current health advisory limits, it is likely that the vast majority, if not all, water systems in the United States will require costly remediation. The State of New York estimates that remediation of PFAS in the state’s drinking water to a level of 4 parts per trillion, a standard 1,000 time less strict than the amount
Continue Reading Threat of Zero-Allowance Regulations Loom for Forever Chemicals

On June 15, 2022, the Environmental Protection Agency (EPA) released new health advisories for drinking water relating to four select classes of per- and polyflouroalkyl substances (PFOA or PFOS) —also referred to as PFAS chemicals. Dubbed “forever chemicals,” and found in such common consumer products as shampoo, food wrappers, and non-stick cookware, PFAS chemicals have gained nationwide attention in recent years both for their extreme bio-persistence and their ubiquity in consumer and personal care products.

In a drastic departure from the agency’s 2016 advisory health limit of 70 parts per trillion (ppt) for PFOA and PFOS, the EPA now recommends limits approaching zero (0.004 and 0.02 for PFOA and PFOS, respectively) based on what it claims to be new medical and scientific research. In addition, the EPA went even further and issued health advisories for “GenX” chemicals and perfluorobutane sulfonate (PFBS) (10 ppt and 2,000 ppt, respectively), two additional PFAS chemicals designed to replace PFOA and PFOS, due to growing concern that PFAS chemicals cause adverse health effects. While today’s guidance acts as little more than a recommendation to local leaders, the EPA reports that it is on track to propose mandatory standards in the fall of 2022. Should the recommended health advisory levels be adopted by the still-pending peer review of the Scientific Advisory Board and processed through the executive rulemaking process, the failure of local water authorities to meet these standards will result in financial penalties.

Maintaining PFAS levels below those suggested in the EPA’s recent guidance will be incredibly difficult, and perhaps impossible, for local water authorities. PFAS have earned their designation as forever chemicals due to their inability to naturally degrade over time. This environmental resistance and water solubility of PFAS, coupled with approximately 80+ years of prevalent use in consumer and industrial products, has resulted in their almost ubiquitous presence in global waterways. The burden to finance the testing, construction, maintenance and operation of PFAS removal systems will fall squarely on local water utilities, which must now prepare to develop systems that can meet levels that fall below even the EPA’s ability to detect. Overburdened and underfunded municipalities faced with this dilemma will almost certainly seek to recover these costs from the manufacturers, producers and suppliers of PFAS chemicals and PFAS-containing products.
Continue Reading EPA Hints at Potentially Crippling Regulations to Come Regarding PFAS in Drinking Water

On October 1, 2021, the Ninth Circuit Court of Appeals ruled in favor of MG+M client The Boeing Company (“Boeing”) in an appeal of an order that remanded the case to state court. The Ninth Circuit reversed the district court’s remand order and adopted Boeing’s argument that the thirty day removal clock is not triggered until “an amended pleading, motion, order, or other paper” makes the grounds for removal “unequivocally clear and certain.”[1]

The federal officer removal statute is codified at 28 U.S.C. § 1442 and permits removal if: (1) the removing party is a “person”; (2) a causal nexus exists between the plaintiff’s claims and defendant’s actions taken at the direction of a federal officer; and (3) the removing party has a colorable federal defense.[2] 28 U.S.C. § 1446 governs the corresponding procedure for such removal and allows two pathways for perfecting removal:  (1)  if the basis for removal is clear from the initial pleading, the case must be removed within thirty days from receipt of that pleading; or (2)  if the case stated by the initial pleading is not removable, the case must be removed within thirty days of receipt of “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”[3]

In the underlying case, Plaintiff sued Boeing and other defendants in Los Angeles Superior Court, alleging that she developed mesothelioma as a result of exposure to asbestos. Plaintiff’s Complaint failed to state any basis for removal, but Plaintiff later alleged that she was exposed to asbestos through the work her husband allegedly performed on Boeing aircraft while serving in the U.S. Marine Corps, thus triggering federal officer jurisdiction.  Boeing removed the case, pursuant to 28 U.S.C. § 1446(b)(3), within thirty days of ascertaining that the case was removable.[4]  Nevertheless, the district court, relying on its interpretation of Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006), rejected the “unequivocally clear and certain” standard for triggering removal argued by Boeing, and concluded that Boeing’s removal was untimely because it was in possession of “sufficient facts” to justify removal prior to receiving Plaintiff’s amended discovery responses.  Accordingly, the district court granted Plaintiff’s motion to remand and awarded attorneys’ fees to Plaintiff, finding that Boeing’s removal was objectively unreasonable. Boeing appealed.

The Ninth Circuit reversed the district court, finding that Boeing removed the case within thirty days of ascertaining that the case was removable.  Dietrich v. The Boeing Company, et al., No. 19-56409 (Ninth Circuit 2021) at 14.  The Court explained that the district court’s reliance on Durham’s statement that the removal clock begins to run when “sufficient facts” are disclosed was misplaced because it “does not tell us when the facts disclosed” are sufficient.  Id. at 13 (emphasis in original).  Its reliance equated “facts sufficient to allow removal with facts sufficient to require removal.” Id.  (emphasis in original).  To avoid such confusion
Continue Reading Ninth Circuit Adopts “Unequivocally Clear and Certain” Standard to Determine When 30-Day Removal Clock is Triggered

Defendants may have greater access to federal appeals courts thanks to a recent Supreme Court decision concerning district court remand orders. The Supreme Court recently settled a circuit split over the authority of federal appeals courts to review district court remand orders, as well as the scope of that review, under 28 U.S.C. § 1447(d). In BP P.L.C., et al. v. Mayor and City Council of Baltimore, the court held that appellate courts have jurisdiction to review all of a district court’s grounds for remand — not just those based on the propriety of federal officer or civil rights jurisdiction — where the case was removed, based at least in part on 28 U.S.C. §§ 1442 and/or 1443.

The case was originally filed in Maryland state court by the City of Baltimore, which alleged that the defendant energy companies caused the city to sustain injuries related to climate change. Two defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction. The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations to the U.S. government. The city moved to remand the case, arguing that the federal court lacked subject matter jurisdiction.

The district court agreed with the city and entered an order of remand, saying in part that federal officer jurisdiction was lacking. Immediately after this decision, the defendants attempted to secure a stay of the remand order from both the district court and Fourth Circuit Court of Appeals. Both courts, however, denied defendants’ efforts to stay the remand order pending appeal, finding that defendants were unlikely to prevail on appeal.

Continue Reading Supreme Court settles circuit split over remand orders under 28 U.S.C § 1447(d)

We are all feeling the impact that COVID-19 is having on our lives, both personally and professionally. In an effort to assist our clients as they navigate the myriad of business and legal challenges they are facing during this difficult time, MG+M has prepared a report summarizing the actions taken by state and court systems as a result of the COVID-19 pandemic. This report contains comprehensive information concerning court orders and individual state’s emergency orders from across the country.  We update this report every day to ensure that our clients have the latest information from all jurisdictions. Please click here to request a copy of this report.

We will also continue to post blog articles regarding various legal topics, including how the COVID-19 pandemic is impacting the legal system and various areas of the law.  Please watch for articles on these topics during the next few weeks as we hope they will help you better understand how this pandemic may impact legal issues related to your business.

Stay safe and healthy.

 
Continue Reading MG+M’s Resources Related to COVID-19