Environmental, Energy & Resources – Page 2

Latest Updates on Maine’s Net Energy Billing Program

Recent decisions by the Maine Legislature and the Maine Public Utilities Commission (PUC) may affect participants in Maine’s Net Energy Billing (NEB) Program. Here are a few updates to keep you up to speed:
Maine Legislature Considering Bills to Repeal Net Energy Billing
The Maine Legislature is considering four bills that aim to eliminate or drastically limit Maine’s NEB program. The fate of the bills is uncertain as they are likely to face significant opposition. The bills are:

LD 32: An Act to Repeal the Laws Regarding Net Energy Billing
LD 257: An Act to Eliminate the Practice of Net Energy Billing
LD 359: An Act to Prohibit Net Energy Billing by Certain Customers
LD 450: An Act to Lower Electricity Costs by Repealing the Laws Governing Net Energy Billing

Bills LD 32, LD 257, and LD 450 are identical in substance, and would repeal the laws that established the NEB program and prohibit the Maine PUC from requiring transmission and distribution utilities to allow customers to participate in NEB. In addition, they would eliminate references to NEB in other laws, including repealing the provisions of law providing for property tax exemptions for solar equipment used for NEB.
Bill LD 359 would prohibit customers from having a shared financial interest in distributed generation facilities. It would limit the NEB program to distributed generation (DG) resources that are located on the same side of the customer’s meter and that are used primarily to serve the load of that customer. It would also require all NEB credits associated with the output of the DG facility to be allocated to that customer. The bill would further revise the applicability of the tariff rates and amend other statutes to reflect the changes in the NEB program.
All four bills have been scheduled for a public hearing before the Energy, Utilities, and Technology (EUT) Committee on February 25, 2025.
NEB Projects in kWh Program Certified as a Maine Class I Resources Must Retain or Obtain RECs to Meet RPS
Last week, the PUC rejected a Request for Rehearing in Docket No. 2024-00251 and upheld its prior decision that a DG resource owner certified as a Maine Class I or Class IA resource, and participating in Maine’s Net Energy Billing Kilowatt Hour (kWh) Credit program, must retain generation information systems (GIS) certificates or otherwise obtain GIS certificates necessary to satisfy Maine’s Renewable Portfolio Standard (RPS) for that portion of the load that is served by the facility or the load associated with NEB kWh credits (REC Holdback Requirement).[1]
The PUC rejected arguments that the REC Holdback Requirement is an unnoticed and therefore impermissible change to the NEB program rules and beyond the authority granted to it by the Legislature.
Rather, the PUC found that imposing the REC Holdback Requirement falls within its authority to certify Maine Class I Renewable Resources under Maine’s RPS and its authority to determine how much of the output of the facility is eligible to receive such certification.
The PUC also also found that the REC Holdback Requirement is consistent with a similar long-standing requirement that behind-the-meter generation facilities comply with Maine’s RPS for that portion of the load that is supplied by the behind-the-meter generator.
DG resources participating in Maine’s NEB Tariff Program are not subject to this REC Holdback Requirement.

[1] Nexamp, Inc. and Holden Solar LLC Request for Approval of Certification for RPS Eligibility Pertaining to Versant Power, Docket No. 2024-00251, Order Denying Request for Rehearing (February 14, 2025) (REC Holdback Order).

Texas Senate Bill 6 and Impacts on Large Load Development in ERCOT

On 12 February 2025, Texas Senate Bill 6 (SB6), authored by Sen. Phil King and Sen. Charles Schwertner, was filed. The low bill number on this indicates it is a priority bill and will likely have momentum. If passed, this bill will directly impact entities currently in or contemplating a co-location arrangement in the Electric Reliability Council of Texas (ERCOT) region. A co-location arrangement is where generation and load are located at the same point on the grid.
If passed, SB6 would require the Texas Public Utility Commission (PUC) to, “implement minimum rates that require all retail customers in that region [ERCOT] served behind-the-meter to pay retail transmission charges based on a percentage of the customer’s non-coincident peak demand from the utility system as identified in the customer’s service agreement.” Many large load entities have pursued co-location arrangements to avoid transmission costs so if passed this will result in a shift. The bill would require the PUC to develop standards for interconnecting large loads in a way to “support business development” in Texas “while minimizing the potential for stranded infrastructure costs.”
Additionally, SB6, if passed, would require the PUC to establish standards for interconnecting large load customers at transmission voltage in ERCOT. SB6 would have these interconnection standards apply to facilities with a demand of 75 MW or more but allows the PUC to determine a lower threshold if necessary. As part of these interconnection standards, the large load customer must disclose to the utility whether the customer is pursuing a duplicate request for electric service in another location (both within and outside of Texas), the approval of that duplicative request would cause the customer to change or withdraw their interconnection request. This likely would result in the utility having a better sense of which large load will move forward in the interconnection queue versus those that are duplicative. The large load customer would also be required to disclose information about its on-site backup generating facilities. The bill would allow ERCOT, after reasonable notice, to deploy the customer’s on-site backup generating facility. As part of the PUC standards for interconnection, the large load customer would have to provide proof of financial commitment which may include security on a dollar per MW basis, as set by the PUC.
SB6 also requires a co-located power generation company, municipally owned utility, or electric cooperative, to submit a notice to the PUC and ERCOT before implementing a new net metering arrangement between a registered generation resource and an unaffiliated retail customer if the retail customer’s demand exceeds 10% of the unit’s nameplate capacity and the facility owner has not proposed to construct an equal amount of replacement capacity in the same general area. Additionally, SB6 would require a new net metering arrangement be consented to by the electric cooperative, electric utility, or municipally owned utility certified to provide retail electric service at the location. The PUCT would have 180 days to approve, deny, or impose reasonable conditions on the proposed net metering arrangement, as necessary to maintain system reliability. Such conditions may include:

That behind-the-meter load ramp down during certain events;
That generation reenter energy markets in the ERCOT power region during certain events; and
That the generation resource will be held liable for stranded or underutilized transmission assets resulting from the behind-the-meter operation.

If the PUC does not act within the 180-day period, the arrangement would be deemed approved.
SB6 would also require large load that is interconnected after 31 December 2025 to install equipment that allows the load to be remotely disconnected during firm load shed. Finally, SB6 would require the PUC to study whether 4 Coincident Peak transmission cost allocation is appropriate.

Recent Federal Developments for February 14, 2025

TSCA/FIFRA/TRI
EPA Releases Final Risk Evaluation For DINP, Finding Unreasonable Risk Of Injury To Human Health When Workers Are Exposed Under Four Conditions Of Use (COU): On January 14, 2025, EPA released the final risk evaluation for diisononyl phthalate (DINP) conducted under the Toxic Substances Control Act (TSCA). EPA states that it has determined that DINP presents an unreasonable risk of injury to human health because workers could be exposed to high concentrations of DINP in mist when spraying adhesive, sealant, paint, and coating products that contain DINP. According to EPA, DINP can cause developmental toxicity and harm the liver and can cause cancer at higher rates of exposure. EPA notes that DINP can also harm the developing male reproductive system, known as “phthalate syndrome,” and that it is including DINP in its cumulative risk analysis for six phthalates that demonstrate effects consistent with phthalate syndrome. EPA released this draft risk analysis on January 6, 2025. For more information and our commentary, please read the full memorandum.
EPA Proposes Risk Management Rule To Protect Workers From Inhalation Exposure To PV29: On January 14, 2025, EPA issued a proposed rule to address the unreasonable risk of injury to human health presented by Color Index (C.I.) Pigment Violet 29 (PV29) under its COUs as documented in EPA’s January 2021 risk evaluation and September 2022 revised risk determination. 90 Fed. Reg. 3107. The proposed rule states that TSCA requires that EPA address by rule any unreasonable risk of injury to health or the environment identified in a TSCA risk evaluation and apply requirements to the extent necessary so the chemical no longer presents unreasonable risk. To address the identified unreasonable risk, EPA proposes requirements to protect workers during manufacturing and processing, certain industrial and commercial uses of PV29, and disposal, while also allowing for a reasonable transition period prior to enforcement of said requirements. Comments are due February 28, 2025. For more information, please read our January 27, 2025, memorandum.
EPA Releases Draft Scope Document For Vinyl Chloride TSCA Risk Evaluation: On January 16, 2025, EPA announced the availability of and requested public comment on the draft scope of the risk evaluation to be conducted under TSCA for vinyl chloride. 90 Fed. Reg. 4738. EPA notes that under TSCA, the scope documents must include the COUs, hazards, exposures, and the potentially exposed or susceptible subpopulations (PESS) that EPA expects to consider in conducting its risk evaluation. EPA states that the purpose of risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the COUs, including unreasonable risk to PESS identified as relevant to the risk evaluation by EPA, and without consideration of costs or non-risk factors. Comments are due March 3, 2025. More information is available in our January 28, 2025, memorandum.
EPA Releases Compliance Guidance For Workplace Chemical Protection Requirements In TSCA Risk Management Rules: On January 16, 2025, EPA released a compliance guide to assist the regulated community in complying with Workplace Chemical Protection Program (WCPP) requirements for chemicals regulated under Section 6 of TSCA. EPA states that a WCPP “is a chemical protection program designed to address unreasonable risk posed by chemical exposure to persons in occupational settings.” The compliance guide provides an overview of typical WCPP requirements that the regulated community may be subject to as part of a TSCA Section 6(a) rulemaking. As reported in our previous memoranda, in 2024, EPA issued final risk management rules with WCPP requirements for methylene chloride, perchloroethylene, trichloroethylene (TCE), and carbon tetrachloride.
According to EPA, the compliance guide is intended for owners and operators of businesses that manufacture (including import) or process, distribute in commerce, use, or dispose of a chemical regulated under TSCA Section 6 that is subject to the WCPP in EPA rules. EPA notes that the guide will also be of interest to people who may be exposed to these regulated chemicals in the workplace. The guide broadly addresses the requirements of a typical WCPP, including:

EPA TSCA occupational exposure limits (Existing Chemical Exposure Limits (ECEL) or EPA Short-Term Exposure Limits (EPA STEL)) designated under TSCA;
ECEL action levels;
Occupational exposure monitoring;
Regulated areas;
Direct dermal contact controls (DDCC);
Respirators;
Personal protective equipment (PPE);
Exposure control plans;
Recordkeeping; and
Downstream notifications.

EPA states that while the compliance guide “provides useful information to consider when implementing a WCPP, the regulated community should also consult the WCPP provisions within the applicable risk management rule.” Individual compliance guides for rules may also provide additional chemical-specific guidance. EPA has issued guides for methylene chloride, TCE, and for the use of perchloroethylene in dry cleaning (also available in Korean and Spanish) and energized electrical cleaning.
EPA Releases New MyPest Tracking System: On January 17, 2025, EPA released its new MyPest tracking system to provide transparency and visibility into the real-time status of pesticide submissions. MyPest is a web-based system that tracks a registrant’s pesticide applications and products after submission via EPA’s Central Data Exchange (CDX). MyPest allows users to view and communicate with the Office of Pesticide Programs (OPP) regarding their pesticide products and pending applications. Pursuant to the requirements in the Pesticide Registration Improvement Act of 2022 (PRIA 5), MyPest seeks to provide accurate, up-to-date information about pesticide applications that are with EPA’s OPP for review. The MyPest application is available at https://oppt.my.site.com/mypestapp/s/. More information on MyPest is available in our January 27, 2025, blog item.
EPA Proposes To Clarify Supplier Notification Requirements For TRI-Listed PFAS: EPA proposed on January 17, 2025, to clarify the timeframe for when companies must first notify a customer that one of its mixtures or trade name products contains a per- or polyfluoroalkyl substance (PFAS) listed on the Toxics Release Inventory (TRI). 90 Fed. Reg. 5795. The National Defense Authorization Act for Fiscal Year 2020 (NDAA) adds certain PFAS automatically to the TRI beginning January 1 of the year following specific triggering events. According to EPA’s January 16, 2025, press release, EPA is proposing the rule in response to questions from industry regarding the effective date of supplier notifications for PFAS added to the TRI pursuant to the NDAA. Stakeholders questioned whether the supplier notification requirements for such PFAS begin on January 1, when the PFAS are added to the statutory TRI chemical list, or upon EPA completing a rulemaking to include the added PFAS in the Code of Federal Regulations. EPA states that the proposed rule would clarify that the supplier notification requirement for these PFAS starts immediately when they are added to the TRI (January 1) by explicitly defining PFAS added to the TRI by the NDAA as TRI chemicals. EPA notes that as TRI chemicals, they are immediately covered by the TRI regulation’s supplier notification provision, as well as all other TRI reporting requirements. Supplier notifications must begin with the first shipment of the calendar year in which the chemical addition to the TRI is effective. Comments are due February 18, 2025.
EPA Updates TSCA Inventory: On January 17, 2025, EPA announced the release of the latest TSCA Inventory. The TSCA Inventory lists all existing chemical substances manufactured, processed, or imported in the United States under TSCA that do not otherwise qualify for an exemption or exclusion. EPA states that “[t]his biannual update to the public TSCA Inventory is part of EPA’s regular posting of non-confidential TSCA Inventory data.” EPA plans the next regular update of the TSCA Inventory for summer 2025. According to EPA, the TSCA Inventory currently contains 86,847 chemicals, of which 42,495 are active (currently known to be in use) in U.S. commerce. Other updates to the TSCA Inventory include commercial activity data and regulatory flags (e.g., significant new use rules (SNUR)).
Biden EPA Filed Notice Of Appeal Of Ruling That Typical Levels Of Drinking Water Fluoridation Present An Unreasonable Risk To Health: As reported in our September 30, 2024, blog item, the U.S. District Court for the Northern District of California ruled in September 2024 that the plaintiffs established by a preponderance of the evidence that the levels of fluoride typical in drinking water in the United States pose an unreasonable risk of injury to the health of the public. Food & Water Watch v. EPA (No. 3:17-cv-02162-EMC). On January 17, 2025, the Biden EPA filed a notice of appeal in the U.S. Court of Appeals for the Ninth Circuit. Food & Water Watch v. EPA (No. 25-384). Now that President Trump’s nominee for EPA Administrator, Lee Zeldin, has been confirmed, it remains to be seen how the Trump EPA will proceed. A mediation conference is scheduled for February 26, 2025.
GAO Recommends EPA’s New Chemicals Program Develop A Systematic Process To Manage And Assess Performance Better: The U.S. Government Accountability Office (GAO) publicly released a report entitled “New Chemicals Program: EPA Needs a Systematic Process to Better Manage and Assess Performance” on January 22, 2025. GAO states that it was asked to review EPA’s implementation of its TSCA New Chemicals Program. The report summarizes the perspectives of selected manufacturers on EPA’s review process and evaluates the extent to which EPA follows key practices for managing and assessing the program. GAO identified a random, nongeneralizable sample of premanufacture notices (PMN) submitted to EPA from October 2021 to April 2024 and interviewed 19 manufacturers that submitted these notices. GAO also compared EPA’s management and assessment activities to key practices it developed based on federal laws, federal guidance, and prior GAO work.
EPA Delays Effective Date Of TCE Risk Management Rule: On January 28, 2025, EPA issued a final rule delaying the effective date of four rules, including the December 17, 2024, final risk management rule for TCE issued under TSCA Section 6(a), until March 21, 2025. 90 Fed. Reg. 8254. EPA states that it is delaying the effective dates of the rules in response to President Trump’s January 20, 2025, memorandum entitled “Regulatory Freeze Pending Review.” The memorandum directed the heads of executive departments and agencies to consider postponing for 60 days from the date of the memorandum the effective date for any rules published in the Federal Register that had not yet taken effect for the purpose of reviewing any questions of fact, law, and policy that the rules may raise. According to EPA, 13 petitions for review of the final TCE rule were filed in various federal appellate courts. On January 13, 2025, the Fifth Circuit Court of Appeals granted a petitioner’s motion to stay temporarily the TCE rule’s effective date. The petitions were then consolidated by the Judicial Panel for Multidistrict Litigation and transferred to the Third Circuit Court of Appeals. The Third Circuit issued a January 16, 2025, order leaving the temporary stay of the effective date in place pending briefing on whether the temporary stay of the effective date should remain in effect. EPA notes that because of the court decisions, the TCE rule never went into effect and is therefore also covered by the terms of the Regulatory Freeze Pending Review memorandum. As reported in our January 24, 2025, blog item, Representatives Diana Harshbarger (R-TN) and Mariannette Miller-Meeks (R-IA) introduced a resolution (H.J. Res. 27) expressing congressional disapproval of EPA’s final TCE rule. The joint resolution is an attempt to use the Congressional Review Act (CRA) to overturn the rule. More information on the final TCE rule is available in our January 13, 2025, memorandum.
EPA Extends Comment Period On Draft TSCA Risk Evaluation For 1,3-Butadiene: EPA announced on January 31, 2025, that it is extending the public comment period on the draft risk evaluation for 1,3-butadiene under TSCA. 90 Fed. Reg. 8798. Comments that were due February 3, 2025, are now due March 5, 2025. EPA states in its announcement that to give the peer reviewers on the Science Advisory Committee on Chemicals (SACC) time to review any additional comments received, it is in the process of rescheduling the February 4, 2025, virtual preparatory meeting and the February 25-28, 2025, peer review meeting for the draft risk evaluation. EPA will announce the new dates for these meetings once they have been selected.
EPA Postpones Addition Of Nine PFAS To TRI For Reporting Year 2025: On February 5, 2025, EPA delayed until March 21, 2025, the effective date of a January 2025 rule adding nine PFAS to the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). 90 Fed. Reg. 9010. As reported in our January 13, 2025, blog item, the January rule updates the regulations to identify nine PFAS that must be reported pursuant to the NDAA. The PFAS added to the TRI are:

Ammonium perfluorodecanoate (PFDA NH4) (Chemical Abstracts Service Registry Number® (CAS RN®) 3108-42-7);
Sodium perfluorodecanoate (PFDA-Na) (CAS RN 3830-45-3);
Perfluoro-3-methoxypropanoic acid (CAS RN 377-73-1);
6:2 Fluorotelomer sulfonate acid (CAS RN 27619-97-2);
6:2 Fluorotelomer sulfonate anion (CAS RN 425670-75-3);
6:2 Fluorotelomer sulfonate potassium salt (CAS RN 59587-38-1);
6:2 Fluorotelomer sulfonate ammonium salt (CAS RN 59587-39-2);
6:2 Fluorotelomer sulfonate sodium salt (CAS RN 27619-94-9); and
Acetic acid, [(γ-ω-perfluoro-C8-10-alkyl)thio] derivs., Bu esters (CAS RN 3030471-22-5).

In the February 5, 2025, notice, EPA states that it is delaying the effective date of the rule in response to President Trump’s January 20, 2025, memorandum entitled “Regulatory Freeze Pending Review.” The memorandum directed the heads of executive departments and agencies to consider postponing for 60 days from the date of the memorandum the effective date for any rules published in the Federal Register that had not yet taken effect for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.
Community And Environmental Groups File TSCA Section 21 Petition Seeking The Phase Out Of Hydrogen Fluoride In Domestic Oil Refining: The Natural Resources Defense Council (NRDC) announced on February 11, 2025, that community and environmental groups submitted a petition under TSCA Section 21 to EPA to prohibit the use of hydrogen fluoride in domestic oil refining “to eliminate the extreme and unreasonable risks this use presents to public health and the environment.” Brought by NRDC, Clean Air Council (CAC), and Communities for a Better Environment (CBE), the petition states that EPA must issue a TSCA Section 6(a) rule prohibiting the use of hydrogen fluoride in domestic oil refining to eliminate unreasonable risks to public health and the environment. According to the petition, “TSCA requires EPA to issue such a rule because this petition identifies (1) a ‘chemical substance’ ([hydrogen fluoride]) that presents, (2) under one or more ‘conditions of use’ (the use of HF for alkylation at U.S. refineries, and the rail and truck transportation needed to supply HF to those refineries), (3) an unreasonable risk to health or the environment.” The petition notes that hydrogen fluoride can take different forms and that anhydrous hydrogen fluoride tends to form hydrofluoric acid when it mixes with water. As reported in our November 13, 2019, blog item, in 2019, EPA denied a similar TSCA Section 21 petition to prohibit the use of hydrofluoric acid in manufacturing processes at oil refineries. TSCA requires EPA to grant or deny the petition within 90 days from the day the petition is filed. If EPA grants the petition, EPA must promptly commence an appropriate proceeding. If EPA denies the petition, EPA must publish the reasons for denial in the Federal Register.
Deadline For Filing Annual Pesticide Production Reports Is March 1, 2025: The March 1, 2025, deadline for all establishments, foreign and domestic, that produce pesticides, devices, or active ingredients to file their annual production for the 2024 reporting year is fast approaching. Pursuant to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 7(c)(1) (7 U.S.C. § 136e(c)(1)), “Any producer operating an establishment registered under [Section 7] shall inform the Administrator within 30 days after it is registered of the types and amounts of pesticides and, if applicable, active ingredients used in producing pesticides” and this information “shall be kept current and submitted to the Administrator annually as required.” More information is available in our February 3, 2025, blog item.
RCRA/CERCLA/CWA/CAA/PHMSA/SDWA
EPA Amends National VOC Emission Standards For Aerosol Coatings: On January 17, 2025, EPA amended the National Volatile Organic Compound (VOC) Emission Standards for Aerosol Coatings. 90 Fed. Reg. 5697. EPA states that the regulation employs a relative reactivity-based approach to control aerosol coating products’ contribution to ozone formation by encouraging the use of less reactive VOC ingredients in formulations. In the final rule, EPA updates the coating category product-weighted reactivity (PWR) limits, adding new compounds and reactivity factors, updating existing reactivity factors, revising the rule’s default reactivity factor, amending thresholds for VOC regulated by the rule, amending reporting requirements, updating test methods to reflect more recent versions, adding a new compliance date, and making clarifying edits. The effective date of the final rule is January 17, 2025. The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of January 17, 2025. The incorporation by reference of certain other material listed in this rule was approved by the Director of the Federal Register as of March 24, 2008.
EPA Proposes To Promulgate New Methods And Update Tables Of Approved Methods For The CWA: EPA proposed on January 21, 2025, to promulgate new methods and update the tables of approved methods for the Clean Water Act (CWA). 90 Fed. Reg. 6967. EPA proposes to add new EPA methods for PFAS and polychlorinated biphenyl (PCB) congeners, and add methods previously published by voluntary consensus bodies that industries and municipalities would use for reporting under EPA’s National Pollutant Discharge Elimination System (NPDES) permit program. EPA also proposes to withdraw the seven Aroclor (PCB mixtures) parameters. In addition, EPA proposes to simplify the sampling requirements for two VOCs, and make a series of minor corrections to existing tables of approved methods. The proposed rule does not mandate when a parameter must be monitored or establish a discharge limit. Comments are due February 20, 2025.
EPA Proposes New Area Source Category To Address Chemical Manufacturing Process Units Using Ethylene Oxide: EPA proposed on January 22, 2025, to establish a new area source category to address chemical manufacturing process units (CMPU) using ethylene oxide (EtO). 90 Fed. Reg. 7942. EPA proposes to list EtO in table 1 to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Chemical Manufacturing Area Sources (CMAS NESHAP) and to add EtO-specific requirements to the CMAS NESHAP. EPA also proposes to add a fenceline monitoring program for EtO. In addition, EPA proposes new requirements for pressure vessels and pressure relief devices (PRD). EPA states that this proposal also presents the results of its technology review of the CMAS NESHAP as required under the Clean Air Act (CAA). As part of this technology review, EPA proposes to add new leak detection and repair (LDAR) requirements to the CMAS NESHAP for equipment leaks in organic hazardous air pollutant (HAP) service and heat exchange systems. EPA also proposes performance testing once every five years and to add provisions for electronic reporting. According to the notice, EPA estimates that the proposed amendments to the CMAS NESHAP, excluding the proposed EtO emission standards, would reduce HAP emissions from emission sources by approximately 158 tons per year (tpy). Additionally, the proposed EtO emission standards are expected to reduce EtO emissions by approximately 4.6 tpy. Comments are due March 24, 2025. EPA notes that under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives comments on or before February 21, 2025.
FDA
FDA Revokes Authorization For FD&C Red No. 3: On January 16, 2025, the U.S. Food and Drug Administration (FDA) announced the revocation of authorization to use FD&C Red No. 3 based on the Delaney Clause of the Federal Food, Drug, and Cosmetic Act (FFDCA). 90 Fed. Reg. 4628. According to FDA’s January 15, 2025, announcement, FDA’s action is in response to a Color Additive Petition filed by the Center for Science in the Public Interest, et al., in 2022, which required FDA to review whether the Delaney Clause applied to this food additive. Manufacturers who use FD&C Red No. 3 in food and ingested drugs will have until January 15, 2027, or January 18, 2028, respectively, to reformulate their products. According to the Federal Register notice, either electronic or written objections and requests for a hearing on the order must be submitted by February 18, 2025.
NANOTECHNOLOGY
OECD Tour de Table Includes Information On U.S. And International Developments On The Safety Of Manufactured Nanomaterials: The Organisation for Economic Co-operation and Development (OECD) has published the Developments in Delegations on the Safety of Manufactured Nanomaterials and Advanced Materials between July 2023 and June 2024 — Tour de Table (Tour de Table). The Tour de Table lists U.S. and international developments on the human health and environmental safety of nanomaterials. More information is available in our February 7 and February 14, 2025, blog items.
PUBLIC POLICY AND REGULATION
TSCA In The Spotlight: TSCA Is Focus Of First Energy & Commerce Hearing Of 119th Congress; GAO Issues Report On New Chemicals Program: In a development no one could have predicted several weeks ago, the first hearing of the 119th Congress in the House Committee on Energy and Commerce (E&C) focused on TSCA and amendments to TSCA that were enacted more than eight years ago. The E&C Subcommittee on Environment (Subcommittee) hearing on January 22, 2025, “A Decade Later: Assessing the Legacy and Impact of the Frank R. Lautenberg Chemical Safety for the 21st Century Act,” featured four witnesses and robust and enthusiastic attendance by the Subcommittee members. (Attendance exceeded the Subcommittee roster because Representative Diana Harshbarger (R-TN) waived onto the Subcommittee to participate in the hearing, where she made news by announcing her intent to introduce a CRA resolution.)
Minutes before the E&C hearing, GAO released the report “New Chemicals Program: EPA Needs a Systematic Process to Better Manage and Assess Performance.” The report echoes a 2023 report by the EPA Office of Inspector General, “The EPA Lacks Complete Guidance for the New Chemicals Program to Ensure Consistency and Transparency in Decisions” (23-P-0026). GAO found that EPA’s New Chemicals Division (NCD) “does not follow most key practices for managing and assessing the results of the New Chemicals Program.” More information is available in our January 24, 2025, blog item and in our item in the TSCA section above.
Senate Confirms Zeldin As EPA Administrator; Nomination Hearing Highlights: The Senate Committee on Environment and Public Works (EPW) on January 23, 2025, advanced the nomination of Lee Zeldin to the full Senate for a vote to confirm him as the next Administrator of EPA. The 11-8 vote to advance the nomination was largely along party lines, with Senator Mark Kelly (D-AZ) as the only Democrat to vote in favor of advancing Zeldin’s nomination. On January 29, 2025, the Senate confirmed Zeldin as EPA Administrator by a vote of 56-42. More information on the nomination hearing is available in our January 23, 2025, blog item.
EPA Administrator Zeldin Announces Five Pillar Initiative To Guide EPA; What Does It Mean For OCSPP?: EPA Administrator Lee Zeldin on February 4, 2025, announced the “Powering the Great American Comeback Initiative” (PGAC Initiative). It consists of five pillars and is intended to serve as a roadmap to guide EPA’s actions under Administrator Zeldin.
The five pillars are:

Clean Air, Land, and Water for Every American;
Restore American Energy Dominance;
Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership;
Make the United States the Artificial Intelligence Capital of the World; and
Protecting and Bringing Back American Auto Jobs.

Administrator Zeldin explained Pillar 3 by stating, “Any business that wants to invest in America should be able to do so without having to face years-long, uncertain, and costly permitting processes that deter them from doing business in our country in the first place.” [Emphasis added.] We agree and would urge Administrator Zeldin to consider the years-long new chemical approval process under TSCA. For more information, please read our February 7, 2025, blog.
“Unleashing Prosperity Through Deregulation” — How Effective Will It Be In Practice?: President Trump, on January 31, 2025, issued Executive Order 14192, “Unleashing Prosperity Through Deregulation.” This has been referred to as President Trump’s “ten-to-one deregulation initiative” that he spoke about when he was campaigning. If this initiative seems familiar, it may be because you remember Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” issued on February 3, 2017, by President Trump in his first term. That Executive Order called for a two-to-one repeal of regulations. It remains to be seen how many significant regulations will be targeted for repeal and eventually be repealed by the Trump Administration. It will be interesting to watch how businesses in highly regulated industries, including the chemical manufacturing industry, could benefit or be challenged by these potential regulatory actions. More information is available in our February 12, 2025, blog.
What Can Happen When Federal Career Employees Are Told “You’re Fired!”: Among the less-noticed, less-reported implications of “firing” federal employees for whatever reason (or no reason) is the process under current law and regulations that applies to reducing or eliminating programs and positions within the U.S. government. Known as a reduction in force (RIF), these procedures are arcane, complicated, and could have many unintended impacts even if imposed to attain targeted reductions in specific parts or programs of the federal workforce. The Executive Order issued on February 11, 2025, designed to implement “workforce optimization” (Implementing The President’s “Department of Government Efficiency” Workforce Optimization Initiative), has stated that to reduce the workforce, RIF procedures will be followed.
The RIF procedures are found in the Workforce Reshaping Operations Handbook, 119 pages long, not including an Appendix of 107 pages. This manual from the U.S. Office of Personnel Management (OPM) outlines how and what happens to a federal employee who has their position eliminated due to budget cuts or management decisions to stop a program activity. More information on the RIF issue is available in our February 13, 2025, blog.
LEGISLATIVE
CRA Resolutions Would Overturn Recent EPA Rules: On January 22, 2025, Representatives Diana Harshbarger (R-TN) and Mariannette Miller-Meeks (R-IA) introduced H.J. Res. 27, a resolution expressing congressional disapproval of EPA’s rule on TCE. This joint resolution is an attempt to use the CRA to overturn EPA’s recent TCE rule issued under TSCA. Senator John Kennedy (R-LA) introduced a similar resolution (S.J. Res. 19) on February 13, 2025. More information on H.J. Res. 27 is available in our January 24, 2025, blog item, and more information on EPA’s final TCE rule is available in our January 13, 2025, memorandum. On February 12, 2025, Representative Andrew S. Clyde (R-GA) introduced a resolution (H.J. Res. 46) to overturn EPA’s recent decabromodiphenyl ether (decaBDE) and phenol, isopropylated phosphate (3:1) (PIP (3:1)) rule. More information on EPA’s final rule is available in our November 13, 2024, memorandum.
House Bill Would Repeal Superfund Tax: On January 22, 2025, Representatives Beth Van Duyne (R-TX), Carol Miller (R-WV), Darin LaHood (R-IL), and Mike Carey (R-OH) introduced the Chemical Tax Repeal Act (H.R. 640). According to Van Duyne’s January 23, 2025, press release, the bill would repeal the Biden-era Superfund Tax “targeting chemical manufacturers with $15 billion in taxes on materials essential in the production of household goods.”
MISCELLANEOUS
President Trump Issues Memorandum Implementing Regulatory Freeze Pending Review: On January 20, 2025, President Trump issued a memorandum entitled “Regulatory Freeze Pending Review” that directs agencies to take the following steps:

Do not propose or issue any rule in any manner, including by sending a rule to the Office of the Federal Register, until a department or agency head appointed or designated by the President after noon on January 20, 2025, reviews and approves the rule;
Immediately withdraw any rules that have been sent to the Office of the Federal Register but not published in the Federal Register so that they can be reviewed and approved; and
Consistent with applicable law, consider postponing for 60 days from the date of this memorandum the effective date for any rules that have been published in the Federal Register, or any rules that have been issued in any manner but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.

USPS Issues New Mailing Standards For Hazardous Materials Outer Packaging And Nonregulated Toxic Materials: On January 27, 2025, the U.S. Postal Service (USPS) amended Publication 52, Hazardous, Restricted, and Perishable Mail, by adding new Section 131 to require specific outer packaging when mailing most hazardous materials (HAZMAT) or dangerous goods (DG), to remove quantity restrictions for nonregulated toxic materials, and to remove the telephone number requirement from the lithium battery mark. The amendment was effective January 27, 2025, and applicable beginning January 19, 2025.
MPCA Recommends Exempting Until 2032 Intentionally Added PFAS In Electronic Or Other Internal Components Within The 11 Product Categories Prohibiting PFAS In 2025: The Minnesota Pollution Control Agency (MPCA) has posted a January 2025 report to the legislature regarding recommendations for products containing lead, cadmium, and PFAS. During the previous legislative session, the legislature directed MPCA to support a report by January 31, 2025, with legislative recommendations related to the following chemicals and products:

The use of intentionally added PFAS in electronic or other internal components of upholstered furniture in the 2025 prohibition under Minnesota Statutes, Section 116.943;
The use of lead and cadmium in internal electronic components of keys fobs in the prohibition under Minnesota Statutes, Section 325E.3892;
The use of lead in pens or mechanical pencils included in the prohibition under Minnesota Statutes, Section 325E.3892; and
The use of intentionally added PFAS in firefighting foam used in fire suppression systems installed in airport hangers in the prohibitions under Minnesota Statutes, Section 325F.072.

The MPCA report recommends that the legislature grant an exemption until 2032 for the use of intentionally added PFAS in electronic or other internal components in the 11 product categories that prohibit intentionally added PFAS in 2025. MPCA notes that internal components pose less threat of direct human exposure and that products within the 11 categories often use similar electronic or other internal components as products outside these categories. MPCA states that there are currently limited available alternatives to PFAS for many electronic or other internal component applications and an exemption will allow manufacturers time to find, develop, test, and implement PFAS-free safer alternatives. According to MPCA, an exemption “will give manufacturers of products within the 11 categories the same amount of time provided to manufacturers of products outside these categories (until 2032) to find and implement PFAS-free electronic or other internal components.”

Increasing Divergence Between US and EU Banks in Approach to Climate Change

Over the past several weeks, each of the major US banks have announced their withdrawal from the Net Zero Banking Alliance (presumably in response to the policy priorities of the second Trump Administration). Although participation in this group may have been more a matter of “virtue-signaling” rather than expressing and adopting a meaningful commitment, the departure of the US banks was nonetheless noteworthy as demonstrating the changing political climate in the United States. During this same time period, in contrast, many of the European Union’s largest banks have re-affirmed their commitment to the Net Zero Banking Alliance, declaring it a core component of their environmental and sustainability strategies.
This divergence between the US and EU with respect to the Net Zero Banking Alliance is illustrative of the increasing divide between the two major Western economies on an array of issues related to climate change. For example, while the SEC is preparing to dismantle the Biden Administration’s climate disclosure law, the EU is maintaining–although possibly adjusting–its own climate disclosure laws. Navigating this divide is becoming increasingly complex for the many companies that operate in both jurisdictions, or simply have commercial ties and are subject to regulatory burdens on both shores of the North Atlantic.

Several of Europe’s biggest banks have declared their commitment to the world’s largest climate alliance for the industry, distancing themselves from Wall Street’s sudden exit from the group. . . . The declarations of support for NZBA follow a period of crisis for the alliance, which saw its biggest US members walk away in quick succession after the Nov. 5 election. President Donald Trump has since taken a wrecking ball to the climate agenda of his predecessor, including ordering that the US leave the Paris climate agreement. Though Europe is struggling with its own backlash against environmental, social and governance regulations, its biggest banks say they remain committed to working together to fight climate change.
www.bloomberglaw.com/…

Community and Environmental Groups File TSCA Section 21 Petition Seeking the Phase Out of Hydrogen Fluoride in Domestic Oil Refining

The Natural Resources Defense Council (NRDC) announced on February 11, 2025, that community and environmental groups submitted a petition under Section 21 of the Toxic Substances Control Act (TSCA) to the U.S. Environmental Protection Agency (EPA) to prohibit the use of hydrogen fluoride in domestic oil refining “to eliminate the extreme and unreasonable risks this use presents to public health and the environment.” Brought by NRDC, Clean Air Council (CAC), and Communities for a Better Environment (CBE), the petition states that EPA must issue a TSCA Section 6(a) rule prohibiting the use of hydrogen fluoride in domestic oil refining to eliminate unreasonable risks to public health and the environment. According to the petition, “TSCA requires EPA to issue such a rule because this petition identifies (1) a ‘chemical substance’ ([hydrogen fluoride]) that presents, (2) under one or more ‘conditions of use’ (the use of HF for alkylation at U.S. refineries, and the rail and truck transportation needed to supply HF to those refineries), (3) an unreasonable risk to health or the environment.” The petition notes that hydrogen fluoride can take different forms and that anhydrous hydrogen fluoride tends to form hydrofluoric acid when it mixes with water. As reported in our November 13, 2019, blog item, in 2019, EPA denied a similar TSCA Section 21 petition to prohibit the use of hydrofluoric acid in manufacturing processes at oil refineries. EPA denied the 2019 petition because it lacked the analysis that would be expected in a TSCA risk evaluation preceding a Section 6(a) rulemaking, such as “discussion of the appropriate hazard threshold, exposure estimates, assessment of risks, or how the facts presented allow EPA to comply with its duties under section 26 or other statutory requirements in making an unreasonable risk determination.” Absent such information, EPA “cannot make the threshold determinations necessary to substantively assess and grant a petition for a TSCA section 6(a) rulemaking.”
TSCA requires EPA to grant or deny the petition within 90 days from the day the petition is filed. If EPA grants the petition, EPA must promptly commence an appropriate proceeding. If EPA denies the petition, EPA must publish the reasons for denial in the Federal Register.

What Can Happen When Federal Career Employees Are Told “You’re Fired!”

Among the less-noticed, less-reported implications of “firing” federal employees for whatever reason (or no reason) is the process under current law and regulations that applies to reducing or eliminating programs and positions within the U.S. government. Known as a reduction in force (RIF), these procedures are arcane, complicated, and could have many unintended impacts even if imposed to attain targeted reductions in specific parts or programs of the federal workforce. The Executive Order issued on February 11, 2025, designed to implement “workforce optimization” (Implementing The President’s “Department of Government Efficiency” Workforce Optimization Initiative), has stated that to reduce the workforce, RIF procedures will be followed.
The RIF procedures are found in the Workforce Reshaping Operations Handbook, 119 pages long, not including an Appendix of 107 pages. This manual from the U.S. Office of Personnel Management (OPM) outlines how and what happens to a federal employee who has their position eliminated due to budget cuts or management decisions to stop a program activity.
The key characteristics that drive what will happen are seniority of the employee and their job title (along with a veterans’ preference). As an example, for the U.S. Environmental Protection Agency (EPA), many staff are hired as an “environmental protection specialist (EPS)” — not a surprise at the agency devoted to environmental protection. There are many job titles at EPA, or any agency, such as chemist, grant administrator, ecologist, meteorologist, and so on. If an office or program element is “reduced in force,” then those staff with more seniority in their job title may have “bumping rights” over someone with the same job title elsewhere in the organization.
If the decision is to reduce the EPA workforce for all “climate-related” or “diversity program” work, some staff may have been hired as “EPS” positions and migrated to climate or diversity related work over time. If there is a RIF, some of those personnel may have started in the water or toxics program and may have bumping rights affecting staff in another part of EPA, outside of the climate or diversity activities — even if that other part of EPA is not the intended target of the cutback.
As an example of the complexity of predicting what might happen, one can examine the one small part of the Workforce Reshaping Operations Handbook, Chapter II (Human Resource’s Role and Responsibilities), Section D (Determining Rights to Other Positions):
Appendix D, Determining Rights to Other Positions, provides additional information on determining employees’ representative rates, normal line of progression for each position, identification of vacancies available for assignment and other placement offers, released employees’ qualifications for assignment, released employees’ assignment rights, and running a mock RIF and reviewing results for accuracy.

This is among the many considerations little-noticed from the first weeks of the new Administration’s “shock and awe” assault on the bureaucracy that could result if big budget or even small “targeted” cuts are forthcoming. Until now, proposed cuts and employees placed on administrative leave appear to have been made without the preparation or details required by the RIF procedures. The new Executive Order helps clarify some of the procedures agencies are to follow when reducing the workforce.
Without Schedule F in place, in addition to applicable regulations and labor contracts, the attempt to fire specific employees may have unpredictable and/or unintended effects and could impact agency activities far outside of the targeted program(s) or personnel. A further element of uncertainty about the future capabilities of federal agencies comes from another component of the Executive Order that states that “The Plan [to reduce the size of the workforce] shall require that each agency hire no more than one employee for every four employees that depart,” with certain exceptions. Future production and schedule of programs are surely to be affected by the difficulties of back-filling vacancies and the impact on staff morale during and after the results of these new initiatives.

Biden EPA Filed Notice of Appeal of Ruling that Typical Levels of Drinking Water Fluoridation Present an Unreasonable Risk to Health

As reported in our September 30, 2024, blog item, the U.S. District Court for the Northern District of California ruled in September 2024 that the plaintiffs established by a preponderance of the evidence that the levels of fluoride typical in drinking water in the United States pose an unreasonable risk of injury to the health of the public. Food & Water Watch v. EPA (No. 3:17-cv-02162-EMC). On January 17, 2025, the Biden U.S. Environmental Protection Agency (EPA) filed a notice of appeal in the U.S. Court of Appeals for the Ninth Circuit. Food & Water Watch v. EPA (No. 25-384). Now that President Trump’s nominee for EPA Administrator, Lee Zeldin, has been confirmed, it remains to be seen how the Trump EPA will proceed. A mediation conference is scheduled for February 26, 2025.
In its September 24, 2024, decision, the U.S. District Court for the Northern District of California found that “fluoridation of water at 0.7 milligrams per liter (‘mg/L’) — the level presently considered ‘optimal’ in the United States — poses an unreasonable risk of reduced IQ in children.” The court notes that its finding “does not conclude with certainty that fluoridated water is injurious to public health; rather, as required by the Amended TSCA, the Court finds there is an unreasonable risk of such injury, a risk sufficient to require the EPA to engage with a regulatory response.” The court order does not dictate how EPA must respond, but states that “[o]ne thing the EPA cannot do, however, in the face of this Court’s finding, is to ignore that risk.”

The BR International Trade Report: February 2025

Recent Developments
President Trump drives forward with “America First” trade policy. Shortly after taking office on January 20, President Trump issued a memorandum to various department heads outlining his “America First” trade policy. Notably, the memorandum paves the way for robust tariffs and calls for executive branch review of various elements of U.S. trade policy. Read our alert for additional analysis.
United States delays tariffs on imports from Canada and Mexico but imposes 10 percent tariffs on imports from China. On February 1, President Trump, acting under the authority of the International Emergency Economic Powers Act (“IEEPA”), imposed a 25 percent tariff on imports from Canada and Mexico (excluding energy resources from Canada, which were subject to a tariff of 10 percent) and a 10 percent tariff on imports from China. After first threatening to respond in kind—with retaliatory tariffs or other measures—both Canada and Mexico negotiated a 30-day pause in exchange for increased enforcement measures at America’s borders. There was no similar agreement between the United States and China, which became subject to additional tariffs on February 4. Notably, the president initially eliminated the de minimis exemption for certain Chinese-origin imports of items valued under $800, but then later reinstated the exemption.
President Trump announces 25 percent tariff on all steel and aluminum imports entering the United States. On February 10, President Trump signed a proclamation imposing 25 percent tariffs on imports of steel and aluminum from all countries and cancelling previous tariff exemptions. Peter Navarro, a trade advisor to the president, remarked that “[t]he steel and aluminum tariffs 2.0 will put an end to foreign dumping, boost domestic production, and secure our steel and aluminum industries as the backbone and pillar industries of America’s economic and national security.” The new tariffs will take effect on March 12.
President Trump announces reciprocal tariff regime. On February 13, the president paved the way for what he called “the big one,” reciprocal tariffs directed against countries that impose trade barriers on the United States. Under the new framework, the United States will impose tariffs on imports from countries that levy tariffs on imports of U.S. goods, maintain a value-added tax (“VAT”) system, issue certain subsidies, or implement “nonmonetary trade barriers” against the United States. The president stated that the U.S. Department of Commerce will conduct an assessment, expected to be completed by April 1, to determine the appropriate tariff level for each country.
President Trump sets tariff sights on European Union. President Trump has said he “absolutely” plans to impose tariffs on goods from the European Union to address what he considers “terrible” treatment on trade. In an effort to stave off such measures, the European Union reportedly has offered to lower tariffs on imports of U.S. automobiles. Experts suggest that, in the event of U.S. tariffs, the European Union may retaliate with countermeasures against U.S. technology services.
Trump and Putin discuss commencing negotiations to end the war in Ukraine. President Trump stated on February 12 that he had a “lengthy and productive” phone call with Russian President Vladimir Putin in which the two leaders discussed “start[ing] negotiations immediately” and “visiting each other’s nations.” The president followed up with a call to Ukrainian President Volodymyr Zelensky, who reported that the call was “meaningful” and focused on “opportunities to achieve peace.” The dialogue comes amidst Russia and Belarus releasing American detainees in recent days.
President Trump and Indian Prime Minister Narendra Modi meet to discuss deepening cooperation. On January 27, President Trump spoke with Indian Prime Minister Narendra Modi to discuss regional security issues, including in the Indo-Pacific, the Middle East, and Europe. Notably, following the phone call, India cut import duties on certain U.S.-origin motorcycles, potentially in an effort to distance itself from President Trump’s claims on the campaign trail that India was a “very big abuser” of the U.S.-India trade relationship. Prime Minister Modi followed up the discussion with a meeting with President Trump at the White House on February 13.
Secretary of State Marco Rubio meets with “Quad” ministers on President Trump’s first full day in office. On January 21, foreign ministers of the “Quad”—a diplomatic partnership between the United States, India, Japan and Australia—convened in Washington, D.C. In a joint statement, the group expressed its opposition to “unilateral actions that seek to change the status quo [in the Indo-Pacific] by force or coercion.”
U.S. Secretary of State Marco Rubio meets with Panamanian President José Raúl Mulino. In early February, Secretary of State Marco Rubio traveled to Panama to meet with Panama’s President José Raúl Mulino and Foreign Minister Javier Martínez-Acha. During the meeting, Secretary Rubio criticized Chinese “influence and control” over the Panama Canal area. Notably, following the meeting with Secretary Rubio, Panama announced that it would let its involvement in China’s Belt and Road initiative expire.
DeepSeek launches an artificial intelligence app, prompting U.S. national security concerns. In January, DeepSeek—a Chinese artificial intelligence (“AI”) startup—released DeepSeek R1, an AI app reportedly less expensive to develop than rival apps. Reports indicate that the United States is investigating whether DeepSeek, in developing its platform, accessed AI chips subject to U.S. export controls in contravention of U.S. law. Commerce Secretary nominee Howard Lutnick echoed these concerns in his recent confirmation hearing.
President Trump issues memorandum launching “maximum pressure” campaign against Iran. On February 4, the president issued a National Security Presidential Memorandum (“NSPM”) restoring his prior administration’s “maximum pressure” policy towards Iran, with a focus on denying Iran a nuclear weapon and intercontinental ballistic missiles. The NSPM directs the U.S. Department of the Treasury and the U.S. Department of State to take various measures exerting such pressure, including imposing sanctions or pursuing enforcement against parties that have violated sanctions against Iran; reviewing all aspects of U.S. sanctions regulations and guidance that provide economic relief to Iran; issuing updated guidance to the shipping and insurance sectors and to port operators; modifying or rescinding sanctions waivers, including those related to Iran’s Chabahar port project (which India has developed at considerable expense); and “driv[ing] Iran’s export of oil to zero.” See the White House fact sheet.
President Trump signs executive order calling for establishment of a U.S. sovereign wealth fund. On February 3, the president issued an executive order directing the Secretary of the Treasury, the Secretary of Commerce, and the Assistant to the President for Economic Policy to develop a plan for the creation of a sovereign wealth fund. A corresponding fact sheet describes the White House’s goals for the fund, including “to invest in great national endeavors for the benefit of all of the American people.” Treasury Secretary Scott Bessent stated that he expects the fund to be operational within the next year.
Dispute between the United States and Colombia over deportation flights prompts brief tariff threat. On January 26, Colombian President Gustavo Petro barred “U.S. planes carrying Colombian migrants from entering [Colombia’s] territory” due to concerns over migrants’ treatment. President Trump responded by ordering 25 percent tariffs on Colombian goods, to be raised to 50 percent in one week, visa restrictions on Colombian government officials and their families, and cancellation of visa applications. The standoff between the two countries was resolved later that same day, signaling President Trump’s intention to use tariffs as a key foreign policy tool.
Impeached South Korean President Yoon Suk Yeol officially charged with insurrection. On January 26, South Korean prosecutors formally charged impeached President Yoon Suk Yeol with insurrection. Yoon becomes the first president in South Korean history to be criminally charged while still in office. In addition to criminal charges, Yoon faces potential removal from office via impeachment. Should the Constitutional Court uphold the impeachment, as many experts anticipate, South Korea will have two months to hold a new election.

Powering Progress: Navigating the Intricacies of On-Site Nuclear Generation

Key Points:

Behind-the-meter nuclear projects require careful coordination with grid operators and utilities, involving detailed interconnection studies and agreements to manage power flows and ensure system reliability.
Regulatory challenges may arise from state laws granting exclusive service territories to utilities, particularly when third-party ownership structures are involved. These issues require state-specific analysis and navigation.
Project developers must engage early with regulators, secure necessary approvals, and navigate complex state and federal regulations, including potential state commission proceedings for larger projects.
Successful development hinges on understanding local economic, environmental, and tax policies, building strong relationships with regulators and supporters, and securing experienced legal representation familiar with large-scale energy projects.

Small modular reactors (SMRs) can be collocated with high demand customers such as data centers and large manufacturing and chemical facilities to provide electric energy and capacity to them directly. Behind-the-meter nuclear generation may be a practical response to issues related to the cost, reliability, and schedule availability of power from incumbent utilities particularly given the size, scalability, constructability, safety, efficiency, and reliability of SMRs. Clients considering such a colocation strategy should consider a range of practical and regulatory issues.
NRC Licensing
Under the 1954 Atomic Energy Act, the Nuclear Regulatory Commission (NRC) is mandated to license nuclear power generating facilities. For traditional large scale nuclear reactors, which typically produce more than 700 MW(e), the NRC process for approval of design and siting has been very expensive and time consuming. There are current proposals by developers, states, and Congress, to either re-interpret or amend the NRC’s “utilization facility rule” to allow the design and siting of SMRs and microreactors, which typically produce no more than 300 MW(e) – with some as low as 10 MW(e) – to be exempted from much of this traditional approval process. Despite potential changes, the NRC will likely still need to approve the design and location of SMRs before they can be deployed. Additionally, state regulators may play a larger role in this process.
Compatibility with Load
Nuclear power plants are designed to operate continuously at high capacity, making them ideal for supplying electricity to consumers with steady, round-the-clock demand. These consumers typically don’t experience significant fluctuations in their energy needs on a daily or seasonal basis. Industries or facilities with consistent energy requirements, regardless of time of day or season, are particularly well-suited to the output profile of nuclear plants.
However, it’s important to recognize that all electrical loads have some degree of short-term variability. Additionally, allowances must be made for both planned maintenance outages and unexpected events, which can affect both the nuclear power plants and the facilities they serve.
While some operations, such as remote mining or refining facilities, can function as isolated microgrids without a connection to the main utility grid, this is not feasible for all potential users with variable loads. Many users (data centers, for example) must rely on additional measures to ensure uninterrupted processes. These backup options may include battery storage systems, peaking facilities for handling demand spikes, or maintaining a connection to the main power grid.
This approach ensures a reliable power supply that can accommodate both the steady baseload provided by nuclear plants and the inevitable fluctuations in demand, planned outages, and unforeseen circumstances.
Utility Service Agreements
When using the electric grid to supplement on-site nuclear generation or absorb excess power, project developers must coordinate with the incumbent public utility. The terms of the electric service agreement will vary based on the utility’s tariffs and regulatory structure.
In regions with vertically integrated investor-owned utilities (common in the South and Mountain West), a single agreement may cover both power supply to the facility and excess power sent to the grid.
In competitive markets, the incumbent utility provides grid interconnection and possibly emergency supply, while competitive suppliers handle other services. This may result in separate agreements for grid connection and power market transactions.
Qualified Facility (QF) Status
On-site generation facilities that can utilize waste heat or steam from nuclear units may qualify for Qualified Facility (QF) status under federal law. This status can provide significant advantages for selling power back to the grid. QF status creates a must-take obligation for the incumbent electrical supplier, primarily in areas without wholesale competition. Consequently, these benefits are mainly available in regions where power supply markets are not deregulated.
The Terms of Utility Service Agreements
The terms of the electric service agreement will depend on which utility serves the location in question and the specific market structures tariffs, regulatory policies and statutes that govern that utility’s operations. Forty-two regional transmission operators (RTOs), independent system operators (ISOs) and major electric utilities serve 85% of U.S. load, but there are many more electric utilities and cooperatives that operate under RTO and ISO umbrellas. Among the hundreds of incumbent utilities, there is tremendous variation in the rules and practices that might determine what sort of utility service agreement might be negotiated to support on-site nuclear generation. There is no one-size-fits-all answer. A case-by-case review of the statutory and regulatory structure for each location is necessary.

Flexibility in the Terms of Utility Service Agreements
Currently, there’s little standardization in utility contracts for behind-the-meter nuclear projects. In supportive utility and regulatory environments, developers may have room to negotiate agreements tailored to their specific needs.
Many utilities have tariff provisions for traditional behind-the-meter generation and net metering, often limiting capacity to very low megawatts. These tariffs typically target much smaller projects and should not be considered definitive for behind-the-meter nuclear developments.
Project developers may negotiate with utilities and seek regulatory approval for customized terms on a case-by-case basis. In jurisdictions supportive of behind-the-meter nuclear generation or the facilities it will serve, even statutory limitations might be addressed through potential amendments.
Transmission Interconnection
Facilities using behind-the-meter nuclear generation will connect to the grid at transmission voltages. The incumbent transmission system operator, typically a Balancing Area Authority (such as an RTO, ISO, or utility), must study potential power flows to and from the facility. These studies determine the cost and schedule for grid interconnection.
The studies assess the grid’s ability to handle the facility’s maximum anticipated electricity demand and energy injection, particularly during peak demand periods. They identify necessary facility additions or upgrades to accommodate these power flows within system operating parameters. This includes specific transmission lines and transformers for the facility, as well as any required system-wide upgrades.
These interconnection studies rely on reliability criteria and power flow models maintained by utilities to comply with National Electric Reliability Council (NERC) standards, as enforced by the Federal Energy Regulatory Commission (FERC).
The process typically occurs in phases: feasibility studies or transmission impact assessments (TIAs), followed by interconnection studies and facilities studies. Each phase provides greater detail on costs and schedules.
Transmission providers usually require developers to demonstrate a binding commitment to proceed beyond feasibility studies. Developers must pay for these studies or agree to cover costs if the project does not reach completion or justify the expense through sufficient load.
The process concludes with an Interconnection Agreement, which establishes a fixed price for transmission upgrades and an interconnection schedule. Utilities may face FERC penalties for failing to meet agreed timelines.

Queuing Projects
Behind-the-meter nuclear projects often transfer excess power to the grid when generation exceeds on-site demand. Consequently, these projects join the transmission provider’s generation interconnection queue alongside solar, wind, and fossil fuel projects.
Recent Federal Energy Regulatory Commission orders require transmission utilities to analyze multiple interconnection requests in batches at least annually. The timing of these requests significantly impacts both cost and interconnection timeline.
As customer demand grows, more extensive upgrades become necessary to accommodate additional power, increasing interconnection costs and delays. Therefore, securing an early position in the queue is crucial for behind-the-meter generation projects to optimize both cost and schedule.
Siting Acts and Certificate of Public Necessity and Convenience Statutes
Many states require utility commission approval for major electric transmission and generation projects before construction begins. This is typically mandated by siting acts or certificate of public necessity and convenience statutes. These laws often define major generation projects as those with at least 75-80 MW capacity.
Behind-the-meter nuclear generation projects in this range may require pre-construction approval through a state commission proceeding. Similarly, the incumbent utility must seek approval for any associated major transmission facilities.
While behind-the-meter nuclear projects should easily meet the substantive requirements for a certificate due to their direct link to on-site load, these proceedings can attract political opposition. Therefore, project developers should approach this process with careful preparation and not take approval for granted.
Third Party Ownership
Financial structures where a third party owns the nuclear facility, rather than the on-site energy user, can create regulatory challenges. These issues arise from state statutes and regulatory frameworks that either grant exclusive service territories to incumbent utilities or classify any entity providing electric service to the public as a regulated electric utility.
These regulatory hurdles are typically avoided when a party operates generation resources solely for its own consumption or only sells excess generation into wholesale markets. However, in states with strict interpretations of territorial service rights, transactions may be prohibited if the nuclear facility owner differs from the on-site energy user. This arrangement could be viewed as violating the incumbent utility’s exclusive territorial service rights.
It is important to note that states vary widely in their interpretation of these statutes. Consequently, there’s no one-size-fits-all solution to this regulatory landscape. A thorough state-by-state analysis of relevant statutes, commission orders, and appellate court decisions is essential to navigate these complexities effectively.
Economic Development, Land Use, Zoning, Environmental, and Tax Issues
Developing a successful behind-the-meter nuclear generation project demands careful navigation of state-specific laws, policies, and practices. This includes economic development, land use, zoning, environmental, and tax issues.

Early engagement is crucial. Establishing strong relationships with staff and regulators at the project’s outset can be decisive in withstanding potential disruptions from other parties or interest groups. Identifying champions and supporters, and securing entitlements early, are key strategies.
Legal representation with local knowledge and experience in similar large-scale development projects is essential. Such expertise can help anticipate challenges and streamline the complex regulatory process.
By addressing these factors proactively, developers can create a solid foundation for their project, enhancing their chances of success in the face of potential obstacles.

Texas’ Power Transmission Infrastructure: Addressing Growing Demand from Data Centers and Crypto Mining

Texas is facing a rapidly evolving energy landscape, driven in part by the surging power demands of data centers and cryptocurrency mining operations. As the digital economy expands, the state’s existing power transmission infrastructure must adapt to ensure grid reliability, affordability and sustainability. However, the growing demand for electricity raises critical challenges, including the need for additional transmission capacity, grid resilience, and fair cost allocation for new infrastructure investments.
Rising Energy Demand from Data Centers and Crypto Mining
Texas has become a prime location for data centers and cryptocurrency mining operations due to its deregulated energy market, favorable business climate and relatively low electricity costs. Data centers, which support cloud computing, artificial intelligence (AI), and financial transactions, require vast amounts of power, often operating 24/7. Similarly, cryptocurrency mining facilities run continuously, consuming significant amounts of electricity to maintain blockchain networks.
The Electric Reliability Council of Texas (ERCOT) projects that power demand from these industries will grow substantially in the coming years. Consumption of electricity from large flexible loads such as data centers and crypto mining facilities is projected to account for 10% of ERCOT’s total forecasted electricity consumption in 2025. ERCOT currently expects power demand to nearly double by 2030. Without strategic infrastructure upgrades, this demand would likely strain the grid, increase congestion and lead to higher electricity prices for consumers.
Challenges with Existing Transmission Infrastructure
Texas operates its own independent power grid, which provides flexibility but also limits its ability to import electricity from neighboring states during periods of high demand. The state’s transmission infrastructure has already faced challenges in keeping up with rapid population growth and extreme weather events. In 2021, Winter Storm Uri exposed vulnerabilities in the grid, leading to widespread outages and highlighting the need for greater investment in both generation and transmission capacity.
One major challenge is that much of Texas’ renewable energy generation—especially wind and solar—is located in rural areas, far from major load centers like Dallas, Houston and Austin. Without sufficient transmission capacity, this clean energy cannot be efficiently delivered to where it is needed. The addition of high-energy-consuming industries like data centers and crypto mining exacerbates this challenge by increasing congestion on existing transmission lines.
The Need for Additional Transmission Infrastructure
To accommodate the growing energy needs, Texas must significantly expand its high-voltage transmission network. New transmission lines are necessary to:

Relieve Grid Congestion – increasing transmission capacity reduces bottlenecks that can drive up energy prices and cause reliability concerns.
Enhance Grid Resilience – strengthening transmission infrastructure can help prevent widespread outages during extreme weather events.
Support Renewable Integration – more transmission lines will allow Texas to take full advantage of its abundant wind and solar resources by connecting them to high-demand areas.
Ensure Reliability for Data Centers and Crypto Mining – dedicated infrastructure planning can ensure that new energy-intensive operations do not disrupt service for residential and commercial consumers.

The Costs of Transmission Expansion
One of the biggest questions surrounding transmission expansion is funding. Historically, Texas has used a mix of ratepayer contributions, state incentives, and private investments to build and maintain its power infrastructure. There are several potential funding mechanisms for new transmission lines:
   •   Ratepayer Contributions – transmission costs are often passed on to consumers through electricity bills. However, increasing rates to fund expansion may face resistance, especially if residential and small-business customers bear a disproportionate burden of the cost.
   •   ERCOT Transmission Cost Recovery – ERCOT has a cost allocation model that spreads transmission investments across various market participants. This approach ensures that those benefiting from the upgrades contribute to the costs.
   •   Direct Charges on Large Energy Consumers – one potential policy solution is to require data centers and crypto mining companies to pay a larger share of transmission infrastructure costs. Special tariffs or direct infrastructure investment agreements could be established to ensure that these industries contribute fairly.
   •   Public-Private Partnerships – collaboration between the state government, utilities, and private investors could help finance large-scale transmission projects. In some cases, tax incentives or low-interest financing options could encourage private sector investment in critical infrastructure.
   •   Federal Funding and Grants – the federal government has recently made funding available for grid modernization projects through the Infrastructure Investment and Jobs Act. The new administration has called some of this into question. Texas could leverage these funds to supplement state and private investments.
Balancing Growth and Grid Reliability
Expanding transmission infrastructure is essential, but it must be done in a way that balances economic growth with grid reliability. Policymakers must ensure that the costs are distributed equitably and that the grid remains stable during periods of high demand. Additionally, investments in energy storage, smart grid technology, and demand response programs can complement transmission expansion by improving overall efficiency.
Texas has long been a leader in energy innovation, and addressing these transmission challenges will be critical to the state maintaining that position. By implementing forward-thinking policies and funding strategies, the state can support its growing digital economy while ensuring a reliable and affordable power supply for all consumers.

Employers Should Plan for the Impact of Evolving Social Policy on Their Workforce

Even before the 2024 presidential election and the recent wave of executive orders, employers were evaluating their positions on various social issues.
Whether taking a formal stand, abstaining from a position, or landing somewhere in between, employers often consider external stakeholders and the court of public opinion. But they frequently forget about a critical and impactful audience—their employees.
Below are a few key areas where evolving social policies intersect with employee considerations.

Environmental, Social, and Governance (ESG) Policies: Regulations around diversity, equity, and inclusion; sustainability; the environment; and financial investments can differ across federal, state, and local jurisdictions, and certain rules apply only to government contractors. Aside from legal concerns, employers may face public and private questions about their actions or policies from employees. As such, employers should make sure that their ESG policies are current, thoughtful, and well communicated, especially in light of changing public sentiment, regulations, and legislation.
Social Media and Freedom of Speech: Employer policies on social media, recording/filming in the workplace (and online), volunteerism, non-solicitation, and whistleblowing should be updated to ensure that they reflect the latest laws, regulations, and guidance by applicable agencies and regulatory bodies. Management should also be trained on these policies, including how to respond to situations when the company’s employees choose to speak out on issues.
Benefit Programs: Employees might question their employer’s benefit policies relating to health care coverage provisions, benefit subsidies, time off/leave and holidays, and even voluntary benefit choices. Do these programs appear to favor certain employees over others? Employers should regularly evaluate these programs not only for compliance but also through the lens of their employees’ needs and expectations, which may differ based on location.
Labor Negotiations: An employer’s social advocacy and related positions impact its employees and the labor unions that currently—or may in the future—represent them. Therefore, employers should make sure that they have a strategy that supports this relationship and is in compliance with applicable labor laws, as well as labor contracts that are in place.
Outsourced, Offshore/Nearshore Workforce: When a company’s contingent and contract labor works side by side with the company’s employees, it’s essential that policies and programs account for this important and sometimes significant part of the workforce. Vendor contracts and communication strategies should also be aligned with these efforts.
Immigration Policies: Most industries and their employees are affected by immigration policy. A legal immigrant workforce will likely be concerned about their own status and that of their families during this uncertain time. Employers must review their policies and programs for these valuable workers and consider what supports, policies, and communications they should provide.
Mandatory Training programs: Employers should annually review mandatory training programs against changing regulations and expectations, as well as current strategies related to advocacy and ESG.

The bottom line: An employer’s stand on social issues and related policies, investments, programs, and trainings affects its workforce. A company’s employees are its face to customers and the public, so employees’ engagement and alignment matters. Because laws and regulations affecting ESG are continually changing, employees will be more engaged and better ambassadors for their employer if it has a well-considered strategy and communication plan addressing these topics.
Michelle Wright also contributed to this post

SEC Begins Process of Eliminating Climate Disclosure Rule

In a development that could hardly be termed unexpected, the Trump Administration SEC has begun the process of unraveling the climate disclosure rule promulgated by the SEC under the Biden Administration. Specifically, the Acting Chair of the SEC–Mark Uyeda, who had dissented from the adoption of the climate disclosure last year–issued a statement signaling that the SEC would soon reverse its position on the climate disclosure rule. Highlighting “the recent change in the composition of the Commission, and the recent Presidential Memorandum regarding a Regulatory Freeze,” Uyeda announced that he would ask the Eighth Circuit–where all of the legal challenges to the climate disclosure rule have been consolidated–to take no action until “the Commission [] deliberate[s] and determine[s] the appropriate next steps.” Such “next steps” could likely involve the SEC no longer defending the validity and legality of the climate disclosure rule.
Despite the significance of this development–effectively, the beginning of the end of one of the Biden Administration’s signature regulatory achievements–this move was widely expected and is unlikely to have much practical impact. Ever since the election of President Trump in 2024, it was anticipated that the SEC climate disclosure rule would not long survive the changed administration. And even before then, due to the substantive legal challenges to the regulation, a number of scholars had opined that the climate disclosure rule was imperiled. Further, the impact of Uyeda’s announcement is even further diminished since the enforcement of the climate disclosure rule had already been voluntarily stayed by the SEC pending the resolution of the legal challenges–so there was not any currently binding regulation applicable to reporting entities.
However, despite the likely demise of the SEC climate disclosure rule, there are mandatory climate disclosure regulations that will apply to many U.S. companies still on the books–as both California and the European Union have issued such regulatory requirements.

The SEC’s interim leader on Tuesday began unraveling the agency’s legal defense of Biden-era climate reporting rules for public companies. Mark Uyeda, acting chairman of the US Securities and Exchange Commission, announced the agency would ask the US Court of Appeals for the Eighth Circuit not to schedule arguments in the case brought by business interests and Republican state attorneys general. The commission needs time to “deliberate and determine the appropriate next steps,” Uyeda said.
www.bloomberglaw.com/…