EPA Releases Draft Charge Questions for SACC Meeting on Phthalates and Memorandum on Proposed Refinement for Estimating DBP Skin Exposures
On June 16, 2025, the U.S. Environmental Protection Agency (EPA) announced the release of the draft charge questions for discussion at the upcoming Science Advisory Committee on Chemicals (SACC) meeting to review all documents released thus far on the risk evaluations of five phthalates. SACC will review the draft risk evaluations for dibutyl phthalate (DBP), di(2-ethylhexyl) phthalate (DEHP), and dicyclohexyl phthalate (DCHP), as well as cross-cutting documents related to DBP, DEHP, DCHP, butyl benzyl phthalate (BBP), and diisobutyl phthalate (DIBP). In addition, EPA also released a memorandum describing a proposed refinement of the approach for estimating skin exposures for DBP.
EPA will hold the virtual public meeting of SACC on August 4-8, 2025, where the charge questions will guide the discussion. EPA will also hold a preparatory virtual public meeting on July 21, 2025, for SACC and the public to consider and ask questions regarding the scope and clarity of the draft charge questions. EPA states that it will publish registration links for the August SACC meeting and July preparatory meeting on the SACC website approximately one month prior to each meeting. If the public would like their comments on the documents related to the phthalates to be considered by the SACC during the peer review meeting, they must be submitted by July 21, 2025.
EPA Proposes RFS Standards for 2026 and 2027, Will Hold Hearing on July 8, 2025
The Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to determine the applicable volume requirements for the Renewable Fuel Standard (RFS) for years after those specified in the statute. On June 17, 2025, EPA proposed the applicable volumes and percentage standards for 2026 and 2027 for cellulosic biofuel, biomass-based diesel (BBD), advanced biofuel, and total renewable fuel. 90 Fed. Reg. 25784. EPA notes that the proposed rule also includes a number of regulatory changes, including reducing the number of Renewable Identification Numbers (RIN) generated for imported renewable fuel and renewable fuel produced from foreign feedstocks and removing renewable electricity as a qualifying renewable fuel under the RFS program (eRIN). EPA requests comment on the proposals and supporting rationales, including on the proposed changes to the RFS program and “any legitimate reliance interests that EPA should consider” during the rulemaking. EPA states that the proposed volume requirements and regulatory changes “would strengthen the RFS program and sharpen the program’s focus on a central goal of the policy: supporting domestic production of renewable fuels.” According to EPA, the proposed modifications and requirements “are responsive to input from key agricultural and energy stakeholders on ways to bolster the RFS program.” Comments are due August 8, 2025. Additional resources are available on EPA’s website.
In a separate June 17, 2025, notice, EPA announced a virtual public hearing to be held on July 8, 2025, on the proposed rule. 90 Fed. Reg. 25614. EPA will hold an additional session on July 9, 2025, if necessary, to accommodate the number of people who sign-up to testify. To attend the virtual public hearing, all attendees (including those who will not be presenting verbal testimony) must register by sending an e-mail to [email protected]. A separate registration form must be submitted for each person attending the hearing. Registration is due no later than July 1, 2025.
Texas Energizes Nuclear Energy Strategy with Passage of Three Key Bills
The Texas Legislature recently passed three key bills: House Bill 14 (H.B. 14); Senate Bill 1061 (S.B. 1061); and Senate Bill 1535 (S.B. 1535), which introduce a comprehensive legal framework to promote nuclear energy in Texas, including uranium mining and workforce development. The bills are expected to be signed by Texas Governor Greg Abbott, who during the interim session instructed the Texas Public Utility Commission to establish an advanced nuclear working group to study and plan for the use of advanced nuclear reactors in Texas. The final report of the working group contains many of the recommendations on which these bills are based.
Key Provisions of the Advanced Nuclear Bills
1. Creation of the Texas Advanced Nuclear Energy Office
At the heart of H.B. 14 is the creation of the Texas Advanced Nuclear Energy Office (TANEO), a new agency housed within the Office of the Governor. [New Section 483.101(a) of the Texas Government Code]. TANEO is designed to facilitate advanced nuclear development in Texas by providing strategic leadership for the advanced nuclear reactor system in Texas, coordinating permits and regulatory efforts, engaging in public education and outreach, promoting the development of advanced nuclear reactors for dispatchable electric generation, creating high-wage manufacturing jobs, identifying barriers to nuclear project development, and supporting the creation of an in-state advanced nuclear supply chain. [Id. at subsection (b)]. The bill authorizes the Governor to appoint a Director of the Office to oversee and administer programs established under the Office [New Section 483.103 of the Texas Government Code] and a Nuclear Permitting Coordinator to assist developers with navigating federal, state, and local permitting requirements. [New Section 483.104 of the Texas Government Code].
2. New Grant Programs to Support Nuclear Development
H.B. 14 establishes the Texas Advanced Nuclear Development Fund, a dedicated account in the state’s General Revenue fund. [New Section 483.201(a) of the Texas Government Code]. The fund will support three new grant programs designed to reimburse expenses for qualifying projects using advanced nuclear technologies, including small modular reactors and microreactors. The Legislature has appropriated $350 million into the fund.
Project Development and Supply Chain Reimbursement Grants. Reimburses up to 50% of eligible early-stage costs (e.g., feasibility studies, engineering, licensing work), capped at $12.5 million per project. [New Section 483.203 of the Texas Government Code].
Advanced Nuclear Construction Reimbursement Grants. Covers up to 50% of qualifying construction costs, including Nuclear Regulatory Commission application fees and long-lead component procurement, with a cap of $120 million per project. Projects must have a construction permit or license application docketed with the U.S. Nuclear Regulatory Commission. [New Section 483.204 of the Texas Government Code].
Completion Bonus for ERCOT-Connected Reactors. Provides performance-based grants for advanced nuclear reactors that reach commercial operation and connect to the ERCOT power grid. Award amounts will be based on the facility’s generation capacity determined on a per-megawatt basis. [New Section 483.205 of the Texas Government Code].
TANEO will evaluate each grant applicant based on the applicant’s quality of services and management, efficiency of operations, access to resources essential to the project, application for a permit or license with the U.S. Nuclear Regulatory Commission, ability to repay the grant if benchmarks are not met, and the project’s potential benefit to the state. [New Section 483.206 of the Texas Government Code]. H.B. 14 ensures that these grants are reimbursement-based and not up-front funding. [New Section 483.202(b) of the Texas Government Code]. Recipients must repay grant funds if project milestones are not met. [Id. at subsection (e)(2)]. The bill also prohibits grants to applicants who already received state-appropriated funds under certain conditions. [Id. at subsection (c)].
3. Legislative Oversight and Confidentiality
Before finalizing any grant award under H.B. 14, TANEO must provide notice to the Lieutenant Governor and Speaker of the House, who may jointly disapprove of the proposed grant within 30 days (with one possible 14-day extension). [Id. at subsection (d)]. Grant application materials are deemed confidential and not subject to public disclosure under the Texas Public Information Act. [New Section 483.207 of the Texas Government Code].
4. Streamlined Procedures for Uranium Mining and Production
S.B. 1061 streamlines the uranium-mining application process by reducing procedural delays and clarifying permitting rules. Specifically, S.B. 1061 amends the Texas Water Code to provide that applications for authorization or amendment to authorization can be uncontested if:
the authorization covers a production area located within the boundaries of a permit that incorporates a range table of groundwater quality restoration values for each area;
the restoration values for each production area are below the established range’s upper limit;
the authorization covers a production area located within the boundaries of a permit that incorporates wells’ groundwater baseline characteristics as required by Texas Commission on Environmental Quality (TCEQ) rule; and
the TCEQ mails the application’s notice of receipt to the county’s groundwater conservation district and surface and mineral owners in the area no later than 30 days after the TCEQ determines the application to be administratively complete. [New Sections 27.0513(d)(1) – (4) of the Texas Water Code].
These changes allow companies to avoid the full permitting process when amending applications and will apply to applications or amendments submitted on or after September 1, 2025. [S.B. 1061, Sections 3 and 4].
5. Creation of an Advanced Nuclear Energy Workforce Development Program
S.B. 1535 creates the advanced nuclear energy workforce development program to develop a talent pipeline for the anticipated advanced nuclear industry growth. The bill directs the Texas Workforce Commission (TWC) to create and administer this initiative. [New Section 302.0081(b) of the Texas Labor Code]. The TWC must collaborate with the Texas Education Agency and the Texas Higher Education Coordinating Board to assess labor supply gaps in the advanced nuclear energy industry, retain talent and strengthen the nuclear workforce pipeline [Id. at subsection (c)(1)(A)], and support the development of academic and training programs in nuclear-related disciplines. [Id. at subsection (c)(2)]. The bill also authorizes support for public-private partnerships to create nuclear career awareness, academic pathways into nuclear fields, workforce training programs offered by public colleges and technical schools, and research and leadership development at general academic institutions. [Id. at subsection (c)(1)(B)]. Overall, S.B. 1535 intends to increase workforce capacity to meet the anticipated growth of Texas’s advanced nuclear energy industry.
What Adoption of these Bills Means
Collectively, these bills represent a landmark for nuclear energy in Texas. They institutionalize state-level support, from permitting coordination to sizable grant and workforce development. With full gubernatorial backing and alignment with established energy needs, lawmakers and industry are positioned to see a major shift in Texas’s energy portfolio. For the energy sector, emerging nuclear capacity could greatly strengthen much needed grid resilience, drive economic activity in project development, manufacturing and finance, and signal that Texas is preparing for diverse and reliable power sources in addition tofossil fuels and renewables.
FERC Issues Guidance on Treatment of Criminal Regulatory Offenses
On June 16, 2025, the Federal Energy Regulatory Commission (FERC) issued a Notice of Guidance regarding the consistency of its existing policies for referring alleged criminal regulatory offenses to the Department of Justice with President Trump’s Executive Order 14294, “Fighting Overcriminalization in Federal Regulations.”
FERC notes that, under the various statutes it administers, including the Federal Power Act, Natural Gas Act, and Natural Gas Policy Act, it is authorized to refer potential criminal conduct and provide evidence to DOJ, which has discretion to prosecute persons who knowingly and willfully violate FERC statutes, rules, regulations, or orders. FERC’s longstanding policy is to refer serious misconduct for criminal prosecution “to provide adequate punishment and deterrence,” and in doing so to “take all factors into account . . . , including the seriousness of the violation, the extent of the harm done, the evidence of willful behavior, and the strength of the evidence of wrongdoing.”
By May 9, 2026, consistent with EO 14294, FERC will provide the Office of Management and Budget with a report containing “(1) a list of criminal regulatory offenses enforceable by the Commission or DOJ; and (2) for each such criminal regulatory offense, the range of potential criminal penalties and the applicable mens rea [‘state of mind’] standard for a violation.”
The Notice also announces a “general policy, subject to appropriate exceptions and to the extent consistent with law,” that FERC and its staff should consider the following factors when determining whether to refer potential criminal violations to the DOJ:
(1) the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense;
(2) the potential gain to the putative defendant that could result from the offense;
(3) whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue; and
(4) evidence, if any is available, of the putative defendant’s general awareness of the unlawfulness of the conduct and knowledge or lack thereof of the regulation at issue.
These EO 14924 factors, FERC explains, overlap significantly with existing criminal referral factors outlined in its 2005 Policy Statement on Enforcement, which FERC will continue to follow.
Given that FERC already rarely exercises its criminal referral authority—having done so only twice in the past 15 years—the immediate effect of the Notice and policy tweak should be limited. However, to the extent that FERC’s enabling statutes contain any “strict liability” offenses where, as noted in EO 14294, a person “need not have a guilty mental state to be convicted of a crime,” this adjustment to FERC’s enforcement policy could spare market participants from criminal prosecution in certain cases, consistent with EO 14294’s purpose of “eas[ing] the regulatory burden on everyday Americans and ensur[ing] no American is transformed into a criminal for violating a regulation they have no reason to know exists.” The Foley team will continue to monitor developments in this area.
Special thanks to Abby Riggs, a summer associate in Foley’s Washington, D.C. office, for her contributions to this article.
The Draft Clean Air Act: Thailand Readies Legislation to Combat Air Pollution
Thailand is suffering from a continuing increase in harmful particulate matter dust (especially PM2.5) and other air pollution in many parts of the country, including Bangkok, its capital and commercial center. There are various causes behind the increase in toxic air pollution, including intense agricultural demands, industrial emissions, urban activities, transboundary pollution, and seasonal factors.
According to several statistics, Thailand is one of the world’s top commercial agricultural producers, with various cash crops, like rice, maize, and sugarcane, grown throughout the country. However, this high level of agricultural production leads to adverse effects on human health, our climate, and the environment.
In Thailand, agricultural burning, using fire to clear land for planting and to remove excess biomass, is a traditional practice that farmers in various parts of the country use for its speed and low-costs. This practice has intensified over the past decades as Thailand transitioned from subsistence farming to commercial agriculture, and Thai farmers came under pressure to satisfy the increasing demands of large agricultural businesses to produce more cash crops. To further exacerbate the issue, Thailand’s neighbors also practice agricultural burning, which can lead to transboundary pollution.
As air pollution gains more attention, especially in developing countries, the United Nations General Assembly (the “UNGA”) passed a resolution in 2022 recognizing the right to a clean, healthy, and sustainable environment as a basic human right. The UNGA called upon its member states (which include Thailand), international organizations, businesses, and other stakeholders to “scale up their efforts” to ensure a clean, healthy, and sustainable environment for all humans across the world.
To combat air pollution, the authorities in Thailand have enacted a patchwork of legal measures, including stricter vehicle emission standards, promotion of electric vehicles, regulation of industrial emissions, and various other regulatory instruments, to combat practices that result in air pollution. However, at this moment, Thailand does not have any specific and comprehensive legislation to combat the causes of air pollution.
Thus as part of its efforts to combat air pollution in the country and further afield, the Thai government has recently initiated steps to implement a citizen-driven legislative tool designed to serve as the cornerstone of the legal framework for addressing air pollution – the Draft Clean Air Act (the “Draft Act”).
Current Status of the Draft Act
At present, the Thai government is in the stage of reviewing and consolidating the seven versions of the Draft Act, including one proposed by the Cabinet, five submitted by various Thai political parties[1], and one developed by a civil society organization, the Thailand Clean Air Network. These seven versions are being formalized and unified into a single consolidated act.
Specifically, the Draft Act is currently being considered by an Ad Hoc parliamentary committee, which includes senators and is supported by two subcommittees: one focusing on the Draft Act’s principles and administrative structure, and the other on legal liabilities and enforcement.
As part of this legislative process, from 2024 to the present, the committee and its two subcommittees have held numerous meetings to amend and refine the content of the draft.
Once their review is complete, a public consultation will be conducted through the Parliament’s official website. The finalized draft will then be submitted to the House of Representatives for a vote in the remaining readings. If approved, the Draft Act is expected to be submitted for royal assent and officially enacted into law within the next year.
Core Principles and Key Provisions of the Draft Act
Definition of Clean Air
Within the Draft Act, “clean air” is defined as air that is free from pollutants exceeding acceptable standards. These standards will be based on decisions by a national committee, international organizations, or academic consensus, depending on which of the seven versions of the Draft Clean Air Act will ultimately be adopted.
Public Rights to Clean Air
The Draft Clean Air Act recognizes various fundamental rights of the public, including:
Right to breathe clean air
Right to access and receive information
Right to participate in policy and planning
Right to seek environmental justice through the court
Right to health screening and medical treatment
Duties of Persons
The Draft Clean Air Act outlines personal duties on individuals and businesses:
Duty to avoid causing air pollution that adversely affects others
Duty to support and cooperate with government efforts to address air pollution
Problem-Solving Mechanisms
The Draft Clean Air Act proposes the following proactive and preventive mechanisms, to be implemented by the Pollution Control Department, to address air pollution issues:
Monitoring, forecasting, and early-warning systems
Provincial-level pollution databases and mapping
Designation of pollution surveillance or hazardous zones
Measures to tackle transboundary pollution
Economic and Behavioral Incentives
The Draft Clean Air Act proposes several policy, fiscal, and regulatory tools to encourage cleaner practices, including:
Taxes for emitting air pollutants
Air pollution management fees
Deposit-refund system
Allocation and transfer of air pollution emission rights
Risk insurance
Subsidies, support, or incentives for individuals or activities that promote clean air
Other tools or measures as prescribed by the Clean Air Policy Committee
Establishment of a Clean Air and Health Fund
The Draft Act proposes to establish a revolving Clean Air and Health fund intends to support activities to promote clean air, compensate victims of air pollution, and penalize violators, such as:
Relief and compensation for damage caused by pollution
Research and community capacity building
Regional and international collaboration
Litigation and legal enforcement (as further discussed below)
Penalties for Activities Resulting in Air Pollution
It is noteworthy that the various versions of the Draft Act intend to introduce new and robust enforcement structures to combat air pollution.
Firstly, they introduce the concept of Clean Air Officers, empowered in four versions (the ones proposed by the Government, Palang Pracharath, Bhumjaithai, and Pheu Thai). These officers will be able to inspect facilities, demand data disclosures, and, in some cases, suspend operations that are contributing to air pollution.
Secondly, these versions also propose enhanced monitoring systems, data collection at provincial and district levels, and public access to real-time air quality data (as emphasized in Kao Klai’s version). Businesses can expect mandatory environmental assessments and continuous monitoring, particularly in pollution-heavy sectors, like agriculture.
Lastly, the penalties vary across the different versions. For example:
Most of the versions recognize the penalties for polluting activities outside the country; this extraterritoriality concept will be discussed further in parallel with Singaporean law to predict the possible impacts on businesses.
Regarding the matter of imprisonment, the Government’s and Palang Pracharath’s versions impose up to one year of imprisonment in addition to fines of 100,000 Thai Baht for domestic violations, with harsher penalties for cross-border pollution, while the Kao Klai and the Clean Air Network versions propose prison terms of up to five years.
Distinctively, Kao Klai uniquely mandates public disclosure of polluters and environmental transparency for publicly-listed companies, raising ESG and reputational stakes for large corporations.
Several acts impose penalties on companies for failing to report emissions, missing required fees, obstructing enforcement, causing transboundary haze issues, and on officers for neglecting their duties.
Comparative Overview
While Thailand is still in the process of developing its regulatory framework to address air pollution, numerous other countries around the world have already established comprehensive laws and regulations aimed at promoting air quality and reducing pollution.
These international efforts can serve as valuable examples and benchmarks for Thailand as it works towards implementing its own clean air framework. Countries such as the United States, European Union member states, the United Kingdom, the Philippines, and Singapore have enacted robust legislation that sets stringent air quality standards, regulates emissions from various sources, and imposes penalties for non-compliance. These laws not only aim to protect public health and the environment but also encourage sustainable practices and technological innovations to reduce air pollution and its impact on the public and the environment.
United States: The Clean Air Act in the United States is one of the most comprehensive air quality laws globally. It was established in 1963 and significantly amended in 1970, granting the Environmental Protection Agency broad powers to regulate air pollutants throughout the country.
European Union: The EU Air Quality Directive, specifically the revised Ambient Air Quality Directive, sets binding air quality standards for European Union member states. It focuses on pollutants such as particulate matter (PM10 and PM2.5), nitrogen dioxide (NO2), and ozone (O3).
United Kingdom: The United Kingdom has various legislative instruments to combat air pollution, including the UK Clean Air Act 1956, later extended by the Clean Air Act 1968 and consolidated in the Clean Air Act 1993. Most recently, the UK adopted the Environment Act 2021 to further strengthen the UK’s provisions for air quality.
The Philippines: The Philippine Clean Air Act 1999 (Republic Act No. 8749), which establishes a comprehensive air pollution control policy aimed at protecting public health and the environment, imposes strict penalties for environmental violations.
Singapore: Singapore first adopted a legislative instrument to combat air pollution in 1971, the Clean Air Act of 1971. Furthermore, Singapore introduced the Transboundary Haze Pollution Act 2014 (“THPA”), which extends to any conduct or thing outside Singapore that causes or contributes to any haze pollution in Singapore.
Thailand’s attempt to introduce legislation tackling air pollution mirrors a broader regional shift toward imposing cross-border environmental accountability on businesses. It draws clear parallels with Singapore’s THPA, which holds companies liable for haze originating beyond its borders. For instance, in 2013, severe haze from fires located in Indonesia caused hazardous, transboundary pollution in Singapore, revealing enforcement gaps. Singapore sought plantation maps to identify polluters and enhance accountability under this law, underscoring the importance of strong air quality regulations and regional cooperation. Because air pollution does not recognize national boundaries, this extraterritorial approach is a key reason Thailand’s Draft Clean Air Act is expected to show similar principles.
Potential Impacts of the Draft Clean Air Act on Businesses
Due to the ongoing nature of the legislative process, it is difficult to forecast with precision how the Draft Act could impact businesses in Thailand and further afield. Businesses contributing to air pollution in Thailand may face financial penalties, potential litigation, reputational damage, or a combination thereof, depending on the strength of the Draft Act. Further, if businesses in Thailand have operations in surrounding countries that result in transboundary air pollution impacting Thailand, they too may face potential financial penalties and litigation under the Draft Act. This, however, depends on whether or not the Draft Act will have extraterritorial reach when adopted.
In various other countries, regulatory authorities are increasingly holding companies accountable for their environmental impact, and fines are imposed on those found responsible for activities resulting in air pollution. As one example, the New South Wales Land and Environment Court recently fined one of Australia’s largest gold mines AUS$350,000 for breaching air pollution regulations by exceeding dust limit regulations on five occasions at a ventilation site.
Preparing Businesses for the Draft Clean Air Act
To prepare for the introduction of the Draft Clean Air Act, businesses in Thailand should take proactive measures to mitigate the impacts their operations have on the environment. This includes the following recommendations:
Adopting cleaner production techniques to lower air pollution; for example, investing in air filtration systems to ensure harmful pollutants are eradicated at the source.
Reviewing elements of their supply chain to ensure that suppliers are adhering to clean air practices; for instance, agricultural businesses should work with farmers to reduce reliance on agricultural burning by exploring cleaner alternatives for land clearing and biomass removal.
Training and developing their people to understand the negative impacts of air pollution.
Ensuring your operational procedures align with recognized international standards.
Furthermore, businesses should stay alert to governmental regulations and initiatives, including the Draft Clean Air Act, to ensure compliance with new, stricter emission standards. Ideally, businesses should be exploring methods to reduce air pollution before the Draft Clean Air Act comes into force to ensure broad compliance. By taking these steps to mitigate air pollution, businesses in Thailand can contribute to improving air quality and safeguarding public health, rather than be the cause of the problem, while avoiding potential fines, litigation and reputational harm in Thailand and further afield.
Concluding Remarks on the Draft Clean Air Act
As we explained throughout this legal update, it is challenging to predict the precise regulations that could be included in the finalized version of the Draft Clean Air Act. The legislative process involves multiple stages of review, amendment, and consultation, which can lead to significant changes before the Draft Act is officially enacted into law in Thailand.
Nonetheless, while the implementation of an act specifically advocating for clean air will not entirely resolve the complex issue of air pollution in Thailand and its neighboring countries, the Draft Act represents a crucial, positive step forward in the fight against air pollution and its detrimental impacts, because for the first time in Thailand, it will establish the basic human right to clean air under Thai law. As such, it will embody the collective to lay a strong foundation for ongoing efforts to improve air quality in the country. It will also empower businesses, individuals, and local communities to take proactive steps in reducing pollution and protecting the environment.
This article was drafted by Chumbhot Plangtrakul, Ronnarit Ariyapattanapanich, and Joseph Willan, with research assistance from Lapon Lertpanyaroj, Premchama Lamiedvipakul, and Worrawantra Nuam-In.
[1] These political parties are Palang Pracharath, Bhumjaithai, Pheu Thai, Kao Klai, and the Democrat Party
PPG Withdraws TSCA Section 21 Petition to Amend Final TCE Risk Management Rule for Specialty Polymeric Microporous Sheet Materials Manufacturing
As reported in our May 13, 2025, blog item, on March 24, 2025, PPG Industries, Inc. (PPG) submitted a petition seeking an amendment to the U.S. Environmental Protection Agency’s (EPA) December 2024 final risk management rule for trichloroethylene (TCE). PPG requested an amendment to the exemption for the industrial and commercial use of TCE as a processing aid for specialty polymeric microporous sheet materials manufacturing that would allow PPG to meet an interim existing chemical exposure limit (ECEL) of five parts per million (ppm) and an action level of 2.5 ppm. According to EPA’s June 11, 2025, letter, PPG withdrew its petition on June 11, 2025, and EPA now considers the petition closed. More information on the final risk management rule is available in our January 13, 2025, memorandum.
Update: Senate Bill 6–A Texas Bill Impacting Large Load Development in ERCOT
As previously reported, Sen. Phil King and Sen. Charles Schwertner introduced Texas Senate Bill 6 (SB6) in February 2025. After various amendments and updates, the bill has passed the Texas House and Senate and is now before Governor Greg Abbott for his approval. If not vetoed, this bill will directly impact large load customers (specifically, electricity consumers of more than 75 megawatts (MW), unless the Texas Public Utility Commission (the PUCT) determines that a lower threshold is necessary) and entities currently in or contemplating a co-location arrangement in the Electric Reliability Council of Texas (ERCOT) region. SB6, or any other bill passed by the legislature, can also become law without Governor Abbott’s signature.
The legislative purpose of SB6 is to ensure large load customers contribute to the recovery of interconnection costs, establish grid reliability protection measures, bring transparency and credibility to load forecasting, and protect customers from outages by requiring large loads to share the load shed obligation during times of shortage.
Interconnecting Large Loads
SB6 requires the PUCT to adopt standards for interconnecting large load customers in ERCOT “in a manner designed to support business development in [Texas] while minimizing the potential for stranded infrastructure costs and maintaining system reliability.” SB6 further provides that the standards apply “to customers requesting a new or expanded interconnection where the total load at a single site would exceed a demand threshold established by the [PUCT] based on the size of loads that significantly impact transmission needs” in ERCOT.
The PUCT’s standards must require (i) the large load customer to disclose to the interconnecting utility whether the customer is pursuing substantially similar requests that would result in a material change, delay, or withdrawal of the interconnection request; (ii) the large load customer to disclose to the interconnecting utility information about the customer’s on-site backup generation facilities (facilities not capable of exporting energy to ERCOT and that serve at least 50% of on-site demand); (iii) a flat study fee of at least US$100,000 to be paid to the interconnecting utility for initial transmission screening; (iv) a method for a large load customer to demonstrate site control for the proposed load location; (v) uniform financial commitment requirements for the development of transmission infrastructure needed to serve a large load customer—the standard must provide that satisfactory proof of financial commitment may include (a) security provided on a dollar per MW basis, (b) contribution in aid of construction, (c) security provided under an agreement that requires a large load customer to pay for significant equipment or services in advance of signing an agreement to establish electric delivery service, or (d) another form of financial commitment acceptable to the PUCT; (vi) uniform requirements for determining when capacity that is subject to an outstanding financial commitment may be reallocated; and (vii) procedures to allow ERCOT to access any information collected by the interconnecting utility to ensure compliance with the standards for transmission planning analysis.
The purpose of many of these requirements is to provide ERCOT and the interconnecting utility with a better sense of which large load will move forward in the interconnection queue versus those that are duplicative or do not have the requisite site control or financial backing to move forward. The Texas Legislature recognized that these large loads are impacting ERCOT’s forecasting capabilities and that it is essential for ERCOT to have a better understanding of which large loads will and will not be built.
SB6 provides that, during an energy emergency alert, ERCOT may issue reasonable notice that large load customers with on-site backup generating facilities may be directed to either curtail load or deploy the customer’s on-site backup generation.
SB6 also directs the PUCT to establish criteria by which ERCOT includes forecasted large load of any peak demand in resource adequacy and transmission planning models and reports.
Co-Location
In addition to the interconnection standards addressed above, SB6 creates standards and requirements for the co-location of large load customers with existing generation resources. A co-location arrangement is an arrangement where generation and load are located near each other and the generation serves the load before the point of interconnection and without using the grid.
Under SB6, a power generation company, electric cooperative, or municipally owned utility must submit a notice to ERCOT before implementing a net metering arrangement between an operating stand-alone generation resource registered in ERCOT as of 1 September 2025 and a new large load customer. The provisions in this new Public Utility Regulatory Act section do not apply to a generation resource (i) that registered with a co-located large load customer at the time of energization (even if the load is energized at a later date), or (ii) where a majority interest is owned directly or indirectly as of 1 January 2025 by a parent company of the net metering customer.
ERCOT must study the system impacts of a proposed net metering arrangement and removal of the generation on the system. ERCOT must complete the study and submit the results to the PUCT with a recommendation by the 120th day after ERCOT received the request and associated information regarding the arrangement. The PUCT then would have 60 days from the date it receives the study results to approve, deny, or impose reasonable conditions on the proposed net metering arrangement (as necessary) to maintain system reliability. Such conditions may include (i) requiring customers to be held harmless for stranded or underutilized transmission assets resulting from the behind-the-meter operation, (ii) requiring the retail customer who is served behind-the-meter to reduce load during certain events, or (iii) requiring the generation resource to make capacity available to ERCOT during certain events. The PUCT is also permitted, if the conditions are not limited to a specific period, to review the conditions at least every five years to determine if they should be extended or rescinded. If the PUCT does not approve, deny, or impose conditions on the proposed net metering arrangement before the expiration of the 60-day deadline, then the arrangement is deemed approved.
Demand Management
In addition to interconnection and co-location requirements, SB6 requires ERCOT to ensure that each transmission and distribution utility, electric cooperative, and municipally owned utility serving a transmission-voltage customer interconnected after 31 December 2025 develops a protocol, including the installation of necessary equipment or technology before the customer is interconnected, to allow the load to be curtailed during firm load shed, unless it is a “critical load industrial customer” or the load is designated as a “critical natural gas facility.” ERCOT will also develop a reliability service to competitively procure demand reductions from large load customers subject to the new rules established by the PUCT.
Transmission Cost Allocation Methods Assessed
Finally, SB 6 requires the PUCT, by 31 December 2026, to evaluate whether the existing methodology used to charge wholesale transmission costs continues to appropriately assign costs for transmission investment. As part of this analysis, the PUCT must evaluate (i) whether the current four coincident peak method ensures that all loads appropriately contribute to the recovery of transmission costs, (ii) whether alternative methods to calculate wholesale transmission rates would more appropriately assign costs, and (iii) what portion of the costs related to access to and wholesale service from the transmission system should be nonbypassable. The PUCT is charged with evaluating whether the PUCT’s retail ratemaking practice ensures transmission cost recovery appropriately charges system costs to each customer class that causes those costs. The PUCT must begin this evaluation within 90 days of the earlier of either the governor’s signing of SB6 or 22 June 2025. After the PUCT completes its evaluation process, and no later than 31 December 2026, the PUCT must amend its rules to ensure wholesale transmission charges appropriately assign costs for transmission investment.
While SB6 has passed both Texas chambers and is projected to not be vetoed by the Governor, the PUCT will still have a lot of work ahead of it to implement the various provisions in the statute. This will give interested parties an additional opportunity to have their voices heard during the process to implement this legislation.
May 2025 Bounty Hunter Plaintiff Claims
California’s Proposition 65 (“Prop. 65”), the Safe Drinking Water and Toxic Enforcement Act of 1986, requires, among other things, sellers of products to provide a “clear and reasonable warning” if use of the product results in a knowing and intentional exposure to one of more than 900 different chemicals “known to the State of California” to cause cancer or reproductive toxicity, which are included on The Proposition 65 List. For additional background information, see the Special Focus article, California’s Proposition 65: A Regulatory Conundrum.
Because Prop. 65 permits enforcement of the law by private individuals (the so-called bounty hunter provision), this section of the statute has long been a source of significant claims and litigation in California. It has also gone a long way in helping to create a plaintiff’s bar that specializes in such lawsuits. This is because the statute allows recovery of attorney’s fees, in addition to the imposition of civil penalties as high as $2,500 per day per violation. Thus, the costs of litigation and settlement can be substantial.
The purpose of Keller and Heckman’s latest publication, Prop 65 Pulse, is to provide our readers with an idea of the ongoing trends in bounty hunter activity.
In May of 2025, product manufacturers, distributors, and retailers were the targets of 364 new Notices of Violation (“Notices”) and amended Notices, alleging a violation of Prop. 65 for failure to provide a warning for their products. This was based on the alleged presence of the following chemicals in these products. Noteworthy trends and categories from new Notices sent in May 2025 are excerpted and discussed below. A complete list of all new and amended Notices sent in May 2025 can be found on the California Attorney General’s website, located here: 60-Day Notice Search.
Food and Drug
Product Category
Notice(s)
Alleged Chemicals
Assorted Prepared Food and Snacks: Notices include coconut water, granola, vegan jerky, and flax seed crackers
38
Notices
Cadmium and Lead and Lead Compounds
Dietary Supplements: Notices include mushroom powder, wheatgrass powder, ashwagandha powder, and vegan protein
37
Notices
Cadmium and Cadmium Compounds, Lead and Lead Compounds, and Mercury
Fruits and Vegetables: Notices include capers, dried cherries, kale chips, and olives
28
Notices
Cadmium and Cadmium Compounds and Lead and Lead Compounds
Seafood: Notices include sardines, mackerel, yellowfin tuna, and salmon
24
Notices
Cadmium and Cadmium Compounds, Lead and Lead Compounds
Noodles, Pasta, and Grains: Notices include gluten-free gnocchi, risotto, and cassava flour
13
Notices
Lead and Cadmium
Cannabis Products: Notices include seltzers, gummies, and bath bombs
7
Notices
Delta-9-tetrahydrocannabinol
Spices and Sauces: Notices include balsamic vinegar, tomato paste, and Ras el hanout
7
Notices
Lead and Lead Compounds
Assorted Food and Drinks: Notices include canned coconut water, kidney beans, and mushrooms
5
Notices
Bisphenol A (BPA)
Protein Powder and Superfood Powder
2
Notices
Perfluorooctanoic Acid (PFOA)
Petit Sardines in Olive Oil
1 Notice
Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA)
Cosmetics and Personal Care
Product Category
Notice(s)
Alleged Chemicals
Personal Care Products: Notices include body wash, lotion, and hand sanitizer
10
Notices
Coconut Oil Diethanolamine Condensate (Cocamide Diethanolamine) and Diethanolamine
Consumer Products
Product Category
Notice(s)
Alleged Chemicals
Bags and Cases: Notices include storage bins, travel sets, and business card holders
35
Notices
Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), and Diisononyl phthalate (DINP)
Household Items and Tools: Notices include compasses, lead anchors, and nozzles
33
Notices
Lead and Lead Compounds
Glass, Ceramics, and Brass Accessories: Notices include mugs, trays, dishes, and glassware, and candle holders
32
Notices
Lead
Household Items and Sports Gear: Notices include badminton sets, pickleball paddles, reading glasses, and scissors
27
Notices
Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), and Diisononyl phthalate (DINP)
Receipt Paper and Tags
18
Notices
Bisphenol S (BPS)
Clothing: Notices include jackets and shorts
17
Notices
Perfluorooctanoic Acid (PFOA)
Household Items: Notices include brass pens, picture frames, and desk stands
12
Notices
Lead
Clothing: Notices include hoodies, jackets, and pants
12
Notices
Di(2-ethylhexyl)phthalate (DEHP) and Diisononyl phthalate (DINP)
Household Items: Notices include pet beds and umbrellas
3
Notices
Perfluorooctanoic Acid (PFOA)
Leather Goods
2
Notices
Chromium (hexavalent compounds)
Environmental
Product Category
Notice(s)
Alleged Chemicals
Unleaded Gasoline
1
Notice
Unleaded Gasoline (wholly vaporized)
There are numerous defenses to Prop. 65 claims, and proactive measures that industry can take prior to receiving a Prop. 65 Notice in the first place. Keller and Heckman attorneys have extensive experience in defense of Prop. 65 claims and in all aspects of Prop. 65 compliance and risk management. We provide tailored Proposition 65 services to a wide range of industries, including food and beverage, personal care, consumer products, chemical products, e-vapor and tobacco products, household products, plastics and rubber, and retail distribution.
Canada Refines Focus on Greenwashing Prosecutions
Recently, the Canadian Competition Bureau published updated guidelines concerning its approach to environmental claims following last year’s amendments to Canadian law that specifically targeted greenwashing. These guidelines are not especially surprising–there is a stated focus on four types of claims that will be the subject of enforcement: (1) “false or misleading representations”; (2) “product performance claims”; (3) “claims about the environmental benefits of a product”; and (4) “claims about the environmental benefits of a business or business activity”–all of which are grounded specifically in a statutory provision. The guidelines further identify six principles that companies should abide by in order to avoid prosecution: (1) “Environmental claims should be truthful, and not false or misleading”; (2) “Environmental benefits of a product and performance claims should be adequately and properly tested”; (3) “Comparative environmental claims should be specific about what is being compared”; (4) “Environmental claims should avoid exaggeration”; (5) “Environmental claims should be clear and specific–not vague”; and (6) “Environmental claims about the future should be supported by substantiation and a clear plan.” All of these principles are generally self-explanatory, and should be part of good business practices.
However, more than the specific guidance offered, what is perhaps more significant is that the Canadian Competition Bureau has chosen to issue these detailed guidelines in response to the greenwashing amendments. While the Competition Bureau often issues such guidelines, it does so in circumstances when legal amendments are deemed significant and where enforcement may be considered a priority. This development therefore indicates the extent of the focus on greenwashing by the relevant Canadian regulators.
Recently, the Act was amended to include two new provisions that explicitly address environmental claims. These new provisions build on the provision of the Act that requires that certain claims be evidence-based. The Bureau is therefore taking this opportunity to describe our approach to environmental claims specifically as they relate to the deceptive marketing provisions of the Act.Footnote2 However, readers are reminded that other laws enforced by the Bureau, including the Consumer Packaging and Labelling Act and the Textile Labelling Act, also prohibit certain types of deceptive representations, and may be relevant to environmental claims.
competition-bureau.canada.ca/…
Recent Federal Developments for June 2025
TSCA/FIFRA/TRI
TSCA Section 21 Petition Seeks Reconsideration Of 2024 Rule Regarding Procedures For Chemical Risk Evaluation: On May 15, 2025, the Center for Environmental Accountability (CEA) filed a petition under Section 21 of TSCA requesting that the U.S. Environmental Protection Agency (EPA) reconsider the 2024 final rule regarding procedures for chemical risk evaluation under TSCA and initiate a rulemaking to amend certain provisions in 40 C.F.R. Part 702, subpart B. The petition states that EPA’s risk evaluation procedural regulations should:
Provide additional definitions for key terms, offering increased transparency and clarity regarding methods and goals of the risk evaluation process;
Bolster intra- and interagency collaboration throughout the risk evaluation process, including requirements that EPA document the outcome of those efforts;
Confirm EPA’s authority to determine which conditions of use (COU) fall within the scope of a risk evaluation;
Explain the criteria EPA may use in determining the COUs it expects to consider;
Provide for a de minimis level below which EPA may exclude COUs from the scope of the risk evaluation;
Explicitly require consideration of existing regulations administered by EPA and other agencies when determining exposure estimates for each COU for a chemical substance;
Require that any assumptions, uncertainty factors, models, and/or screening approaches used in the risk evaluation reasonably reflect the COUs of the chemical substance in practice;
Require EPA to make an unreasonable risk determination for each COU of a chemical substance assessed in a risk evaluation;
Clarify when determinations regarding unreasonable risk or no unreasonable risk are considered final agency actions;
Explicitly require peer review for all risk evaluations;
Create a clear regulatory pathway for the development and submission of draft risk evaluations by requesting manufacturers and other interested persons; and
Extend applicable comment periods and include opportunities for further extensions.
Chemical Coalition Withdraws TSCA Section 21 Petition Seeking Revisions To TSCA Section 8(a)(7) PFAS Reporting Rule: As reported in our May 4, 2025, blog item, on May 2, 2025, a coalition of chemical companies petitioned EPA for an amendment of the TSCA Section 8(a)(7) rule requiring reporting for per- and polyfluoroalkyl substances (PFAS). The petitioners ask that EPA revise the reporting rule to exclude imported articles, research and development (R&D) materials, impurities, byproducts, non-isolated intermediates, and PFAS manufactured in quantities of less than 2,500 pounds (lb.). According to a May 22, 2025, letter from EPA, on May 16, 2025, the coalition withdrew its petition via e-mail to EPA Administrator Lee Zeldin and “EPA now considers this petition closed.” After the coalition submitted its petition, EPA published an interim final rule to postpone the data submission period to April 13, 2026, through October 13, 2026. 90 Fed. Reg. 20236. Small manufacturers reporting exclusively as article importers would have until April 13, 2027, to report. Comments on the interim final rule were due June 12, 2025.
EPA Proposes To Extend Certain Compliance Deadlines To Ensure Lab Compliance With Final Methylene Chloride Risk Management Rule: On May 27, 2025, EPA proposed to extend certain compliance dates in the final risk management rule for methylene chloride under TSCA. 90 Fed. Reg. 22214. The proposed rule would extend the Workplace Chemical Protection Program (WCPP) compliance dates for non-federal laboratories by an additional 18 months to align with the dates allowed for federal laboratories and their contractors. If issued in final, the rule would extend the following compliance dates for non-federal laboratories: for initial monitoring from May 5, 2025, to November 9, 2026; for establishing regulated areas and ensuring compliance with the Existing Chemical Exposure Limit (ECEL) from August 1, 2025, to February 8, 2027; and for ensuring the methods of compliance as well as developing and implementing an exposure control plan from October 30, 2025, to May 10, 2027. Comments are due June 26, 2025.
DOD RFI Seeks Information On Certain Chemicals Undergoing TSCA Section 6 Risk Evaluation: On May 27, 2025, the U.S. Department of Defense (DOD) issued a request for information (RFI) to gather information to identify and assess critical applications for DOD and the defense industrial base (DIB) that necessitate the use of existing chemicals undergoing EPA’s TSCA Section 6 risk evaluation process. The RFI states that it will help the Office of the Assistant Secretary of Defense for Energy, Installations, and Environment (OASD (EI&E)) Chemical and Material Risk Management Program (CMRMP) better understand the use of TSCA existing chemicals in products leading into the defense supply chain. The RFI is focused on receiving information related to the following existing chemicals:
1,3-Butadiene (Chemical Abstracts Service Registry Number® (CAS RN®)106-99-0);
1,1-Dichloroethane (CAS RN 75-34-3);
1,2-Dichloroethane (CAS RN 107-06-2);
Butyl benzyl phthalate (1,2-benzene-dicarboxylic acid, 1-butyl 2(phenylmethyl) ester) (BBP) (CAS RN 85-68-7);
Dibutyl phthalate (1,2-benzene- dicarboxylic acid, 1,2- dibutyl ester) (DBP) (CAS RN 84-74-2);
Dicyclohexyl phthalate (DCHP) (CAS RN 84-61-7);
Di-ethylhexyl phthalate (1,2-benzene-dicarboxylic acid, 1,2-bis(2-ethylhexyl) ester) (DEHP) (CAS RN 117-81-7);
Di-isobutyl phthalate (1,2-benzene-dicarboxylic acid, 1,2-bis-(2methylpropyl) ester) (DIBP) (CAS RN 84-69-5);
Di-isodecyl phthalate (1,2-benzenedicarboxylic acid, 1,2-diisodecyl ester) (DIDP) (CAS RNs 26761-40-0; 68515-49-1);
Diisononyl phthalate (1,2-benzenedicarboxylic acid, 1,2-diisononyl ester) (DINP) (CAS RNs 28553-12-0; 68515-48-0); and
Octamethylcyclotetra-siloxane (D4) (CAS RN 556-67-2).
DOD seeks to understand better applications that require the use of these chemicals and the criticality of these chemicals for industry and supply. The RFI notes that DOD will continue to issue RFIs to consider additional TSCA chemicals. Responses are due June 20, 2025.
ACC Files TSCA Section 21 Petition Seeking Reconsideration Of TCE Risk Management Rule: On May 27, 2025, the American Chemistry Council (ACC) petitioned EPA under TSCA Section 21 for reconsideration of the final risk management rule for trichloroethylene (TCE). ACC requests that EPA reconsider and amend two provisions of the rule:
Revise the byproduct exclusion in 40 C.F.R. Section 751.301(c) by removing the “site-limited” restriction that requires byproduct TCE to be reused as a “part of the same overall manufacturing process.” The petition states that this would allow facilities to continue reusing/processing byproduct TCE either at the same facility where the byproduct was generated or at another facility; and
Delete the last sentence from the “regulatory threshold” provision in 40 C.F.R. Section 751.301(b), allowing facilities to continue discharging wastewater that contains TCE at less than 0.1 percent by weight pursuant to their valid, existing Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits.
Draft Risk Evaluations Determine That DBP And DEHP Present Unreasonable Risks To Human Health And The Environment: On June 5, 2025, EPA announced the release of the draft TSCA risk evaluations for DBP and DEHP. 90 Fed. Reg. 23931. EPA states that it used the best available science to prepare the draft risk evaluations and to determine preliminarily, based on the weight of scientific evidence, that DBP and DEHP present unreasonable risk to health and the environment driven primarily by certain COUs analyzed in the draft evaluations. Comments on the draft risk evaluations are due August 4, 2025. The Science Advisory Committee on Chemicals (SACC) will peer review the documents at a meeting on August 4-8, 2025. Comments submitted by July 21, 2025, will be considered by SACC during its peer review meeting. More information will be available in a forthcoming memorandum.
EPA Extends Deadline To Report Health And Safety Data For 16 Chemicals: EPA issued a final rule on June 9, 2025, that extends the reporting deadlines for a rule under TSCA Section 8(d) requiring manufacturers (including importers) of 16 chemicals to report data from unpublished health and safety studies to EPA. 90 Fed. Reg. 24228. EPA notes that these health and safety studies “will help inform EPA’s prioritization, risk evaluation, and risk management of chemicals under TSCA. ” The reporting deadline in EPA’s December 13, 2024, final rule was March 13, 2025. In March 2025, EPA extended the reporting deadline to June 11, 2025, for vinyl chloride and to September 9, 2025, for the other chemicals covered under the rule. The rule extends the reporting deadlines for all 16 chemicals to May 22, 2026. According to EPA, the extension will provide it additional time to prepare final guidance for companies on issues related to complying with the rule, including those related to templates required for submissions containing confidential business information. The chemicals subject to the TSCA Section 8(d) rule are:
Acetaldehyde;
Acrylonitrile;
2-anilino-5-[(4-methylpentan-2-yl) amino]cyclohexa-2,5-diene-1,4-dione (6PPD-quinone);
Benzenamine;
Benzene;
Bisphenol A (BPA);
Ethylbenzene;
Hydrogen fluoride;
4,4-Methylene bis(2-chloraniline) (MBOCA);
N-(1,3-Dimethylbutyl)-N′-phenyl-p-phenylenediamine (6PPD);
Naphthalene;
Styrene;
4-tert-octylphenol(4-(1,1,3,3-Tetramethylbutyl)-phenol);
Tribromomethane (bromoform);
Triglycidyl isocyanurate; and
Vinyl chloride.
More information on EPA’s December 2024 rule is available in our December 23, 2024, memorandum.
EPA Issues Final SNURs For Certain Chemicals: EPA issued final significant use rules (SNUR) on June 13, 2025, for certain chemical substances that were the subject of premanufacture notices (PMN) and are also subject to an Order issued by EPA pursuant to TSCA. 90 Fed. Reg. 24977. The SNURs require persons to notify EPA at least 90 days before commencing the manufacture (including import) or processing of any of these chemical substances for an activity that is designated as a significant new use in the SNUR. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification; made an appropriate determination regarding that notification; and taken such actions as required by that determination. The final SNURs are effective August 12, 2025.
RCRA/CERCLA/CWA/CAA/PHMSA/SDWA
CEQ Withdraws NEPA Interim Guidance On Consideration Of Greenhouse Gas Emissions And Climate Change: On May 28, 2025, the Council on Environmental Quality (CEQ) announced the withdrawal of its interim guidance entitled “National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change,” for which notice was published in the Federal Register on January 9, 2023. 90 Fed. Reg. 22472. According to CEQ, it has concluded that the interim guidance is inconsistent with the policy objectives in Executive Order (EO) 14154, Unleashing American Energy. The withdrawal was effective May 28, 2025.
PHMSA Seeks Stakeholder Feedback On Whether To Amend Or Repeal Hazardous Materials Rulemaking Procedures, Program Procedures, Or Regulations: On June 4, 2025, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published an advance notice of proposed rulemaking (ANPRM) to solicit stakeholder feedback on whether to repeal or amend any requirements in the Hazardous Materials Rulemaking Procedures and Program Procedures or the Hazardous Materials Regulations (HMR), as well as any letters of interpretation, guidance documents, or other material, “to eliminate undue burdens on the identification, development, and use of domestic energy resources and to improve government efficiency.” 90 Fed. Reg. 23656. PHMSA states that it seeks stakeholder feedback regarding opportunities to identify widely used hazardous material special permits with established safety records for conversion into deregulatory provisions with broader applicability. PHMSA also seeks stakeholder feedback regarding opportunities to introduce efficiencies to its petitions process. Finally, PHMSA also solicits stakeholder feedback on whether to amend the HMR to require PHMSA to conduct periodic, mandatory regulatory reviews. Comments are due August 4, 2025. PHMSA notes that it will consider late-filed comments to the extent practicable.
FDA
FDA Advances Post-Market Chemical Review Program: On May 15, 2025, the U.S. Food and Drug Administration (FDA) announced the launch of “a stronger, more systematic review process for food chemicals already on the market — especially those that concern consumers most.” Over the coming months, FDA will roll out the following key actions:
A modernized, evidence-based prioritization scheme for reviewing existing chemicals. According to FDA, it will soon release a draft for public comment;
A final, systematic post-market review process shaped by stakeholder input. More information on FDA’s 2024 Discussion Paper Development of an Enhanced Systematic Process for the FDA’s Post-Market Assessment of Chemicals in Food is available in our August 22, 2024, blog item; and
An updated list of chemicals under review, including butylated hydroxytoluene (BHT); butylated hydroxyanisole (BHA); and azodicarbonamide (ADA). FDA states that it will also take steps to expedite its review of chemicals currently under review like phthalates, propylparaben, and titanium dioxide. FDA notes that it will continue to share information about the status of its work on its public website as part of its push for greater transparency.
FDA notes that until now, it has conducted post-market reviews “on a case-by-case basis, often in response to citizen petitions or new scientific evidence.” FDA states that the new framework “will be proactive, science-based, and built for long-term impact.”
NANOTECHNOLOGY
NASEM Releases Quadrennial Review Of NNI, Recommends Renewed And Expanded Infrastructure: On May 20, 2025, the National Academies of Sciences, Engineering, and Medicine (NASEM) announced the release of a report entitled Quadrennial Review of the National Nanotechnology Initiative (2025): Securing U.S. Global Leadership Through Renewed and Expanded Infrastructure. Requested by Congress as part of the 21st Century Nanotechnology Research and Development Act, the report focuses on the infrastructure of the National Nanotechnology Initiative (NNI). The Committee on the Quadrennial Review of the NNI “recommends a new focus on renewing and expanding the nanotechnology infrastructure, including instruments, facilities, and people, so that the intellectual capital of nanotechnology can be converted into economic, social, and national security gains for the United States.” More information is available in our May 23, 2025, blog item.
PUBLIC POLICY AND REGULATION
When States Step In: PFAS Policy Innovation Or Fragmentation?: While federal regulators continue to lay the groundwork for a comprehensive response, including through the PFAS Strategic Roadmap, states are increasingly positioning themselves as policy innovators in this space. The recent announcement that EPA will issue additional guidance and extend the compliance deadline for the TSCA Section 8(a)(7) PFAS reporting rule underscores a broader dynamic: in the absence of fast-moving federal action that states perceive as comprehensive, states are setting the pace, even if their approaches do not always (or ever) mirror the federal approach to regulation and risk mitigation. While this federal delay, and retreat in other PFAS areas, is recent, states have not waited for federal action. Over the past few years, several states have increasingly framed PFAS regulation as a space for environmental leadership, and their regulatory approaches diverge significantly from federal approaches to PFAS regulation.
Congress And The Feds — The Impact Of Nonperformance: Ponder the following existential question: Who does their job less effectively? Members of Congress or employees of federal agencies? Congress has not been able to reauthorize environmental statutes for years, with some (most) needing significant attention. Many of the “problems” often cited by critics of Agency behavior can be traced back to the fact that demands to fix current problems are being made of a program that does not quite fit the text of the authorizing statute. To address action demanded by state and federal legislative members, the bureaucracy has to rely on fitting the law they implement to often unforeseen problems that they now confront.
Many observers fear the fallout of the demise of the Chevron doctrine — concern that, without deference to agency interpretations, important problems may remain unaddressed (or worse, for some, resolution may fall to federal judges). But consistent with the court opinion, interpretations of legislative text is the domain of judges or, heaven forfend, the responsibility of Congress to define or refine clearly the extent and intent of the legislation.
The current result to fill effectively the legislative effort can be called “rubber-suiting” — stretching the colorable authority already granted to address a new problem not originally anticipated by the legislative authors. An example in the environmental space is the EPA authority to regulate biotechnology products: TSCA and FIFRA can reach (stretch) to cover most of the waterfront about regulatory issues identified needing regulation.
Over the past decades, Congress and different administrations have made intermittent attempts to craft a new, broad, and modern statute to coordinate and regulate government review and approval of biotechnology products. The current government allocation of responsibilities across agencies, reliant on authority legislated mostly long before biotechnology products were developed, is governed by policies first crafted during the Reagan and H.W. Bush Administrations.
Jurisdiction remains fragmented, relying on statutes drafted before modern methods of biotech engineering were even developed, and holes in the rubber-suit remain. In addition to the jurisdictional difficulties and holes, especially acute in the last decade or three, is the bitter partisanship besetting congressional deliberation. There are continued calls for “regular order,” but apparently little appetite for the same. “Regular order” would see legislation introduced, deliberated by the assigned subcommittee(s) and committee(s), moving to floor consideration in each chamber, and differences between House and Senate resolved by a conference committee. Such a schematic is about as currently relevant as having new members watch Jimmy Stewart’s Mr. Smith Goes to Washington as part of orientation.
Our April 2, 2025, blog post discussed how the call to reorganize EPA has been a long-standing idea to “reform” the Agency to better achieve its mission. Likewise, the point here is to suggest that Congress might benefit from a version of “doctor, heal thyself” should any serious attempt be made to make government work better, be more efficient, and give more meaning to the phrase “your tax dollars at work.” More information is available in our May 21, 2025, blog item.
Chemical Policy Crossroads: MAHA Report’s Assessment Calls For Reform Amid Deregulatory Trends: In response to President Trump’s February 13, 2025, EO 14212, “Establishing The President’s Make America Healthy Again Commission,” the White House issued part of what is being called “The MAHA Report” (with MAHA an acronym for Make America Healthy Again), entitled “Make Our Children Healthy Again: Assessment” (the Assessment), on May 22, 2025. Section One of the Assessment, “The Shift to Ultra-Processed Foods,” includes the Commission’s thoughts on the U.S. agricultural system, food additives, food industry regulation, and government food programs, while Section Two of the Assessment, “The Cumulative Load of Chemicals in our Environment,” includes its take on chemical exposures and pathways, corporate influence, and highlights some top concerns. The Assessment’s core messages add yet another element of business uncertainty that chemical stakeholders would be wise to note. For our thoughts on the Assessment, please read our June 2, 2025, blog. More information on the Assessment is also available in our June 11, 2025, blog item.
Big Beautiful Bill Means Big Cuts For Clean Energy Manufacturers: On March 20, 2025, House Republicans passed the “Big Beautiful Bill” (BBB) as part of H.R. 1, a sweeping legislative package that includes dramatic rollbacks of many of the clean energy tax credits established under the Inflation Reduction Act (IRA). While the bill has little chance of advancing in the Senate in its current form, its proposed cuts offer a window into shifting political priorities and could have significant implications for the U.S. clean energy manufacturing sector. Subtitle C of the bill, titled “Make America Win Again,” proposes to sunset, repeal, or restrict nearly every major clean energy tax credit under the IRA. Among those affected are credits for clean vehicle purchases (Section 25E), commercial clean vehicles (Section 45W), alternative refueling infrastructure (Section 30C), residential energy efficiency improvements (Sections 25C and 25D), new energy efficient homes (Section 45L), and advanced manufacturing (Section 45X).
For manufacturers, the most potentially damaging proposals are those that target the clean electricity production and investment credits under Sections 45Y and 48E, and the advanced manufacturing production credit under Section 45X. The bill would not only accelerate the phase-out dates for these credits but would also impose new restrictions on facilities and companies that receive any form of “material assistance” from so-called “prohibited foreign entities,” including entities with even minor Chinese ownership or influence. In addition to severing incentives for manufacturers with foreign ties, the BBB repeals the ability to transfer clean energy tax credits under IRA Section 6418 — a key tool for helping smaller developers and manufacturers monetize credits and attract financing.
Although the BBB is unlikely to become law in its current form, its provisions could resurface in future negotiations or budget bills. Industry participants should monitor legislative developments closely and consider how foreign ownership structures, supply chain dependencies, and tax credit planning may need to adapt to an evolving policy landscape. More information is available in our June 6, 2025, blog item.
Clearing Regulatory Roadblocks: How Smarter Implementation Can Help Supply Chain Modernization: On June 5, 2025, the Joint Economic Committee (JEC) of the U.S. Congress convened a hearing titled “Barriers to Supply Chain Modernization and Factor Productivity Enhancements.” Throughout the hearing, members and witnesses alike underscored the role of “regulatory friction” — especially in the form of fragmented and unpredictable requirements — as a key factor slowing investment in domestic manufacturing and threatening supply chain resilience. While EPA and TSCA were not named directly, the concerns raised map closely onto the compliance challenges companies face under TSCA Section 5 and Section 6 and related programs.
The JEC hearing makes clear that regulatory clarity and coordination are essential to rebuilding a productive and resilient industrial base. Even without mentioning TSCA by name, the hearing highlighted the very pressures companies face under EPA’s chemical management programs: unclear compliance standards, disconnected data requests, and prolonged uncertainty about new product approval despite considerable capital investment and unclear future legal obligations.
EPA has opportunities to reduce these pressures. Codifying frequently referenced guidance through notice-and-comment rulemaking, aligning reporting obligations across programs, and engaging earlier with agencies like DOD and the U.S. Department of Commerce could provide the predictability and coordination manufacturers need to invest confidently in modernization. To the extent of trying “new ideas” or probing varied regulatory options, a pilot program could reward those who might be willing to volunteer if such program participation provided an interim safe harbor of sought-after certainty while emerging rules and definitions are further clarified. More information on the issues discussed at the hearing is available in our June 13, 2025, blog item.
LEGISLATIVE
Bipartisan VET PFAS Act Would Support Veterans Exposed To PFAS: Representatives Mike Lawler (R-NY) and Josh Riley (D-NY) introduced the VET PFAS Act (H.R. 3639) on May 19, 2025. According to Lawler’s May 29, 2025, press release, the bipartisan legislation would ensure veterans and their families exposed to PFAS at military installations receive the health care and disability benefits they have earned through the Department of Veterans Affairs (VA). The bill would:
Designate PFAS exposure as a service-connected condition for affected veterans;
Require the VA to provide health care and benefits for medical conditions associated with PFAS exposure; and
Ensure military families have access to the care and support they need.
Bipartisan Plant Biostimulant Act Would Advance Agricultural Innovation: On May 22, 2025, Senators Roger Marshall, M.D. (R-KS) and Alex Padilla (D-CA) introduced the Plant Biostimulant Act (S. 1907) to establish a standardized process for approving the commercial use of plant biostimulants as alternatives to synthetic pesticides and fertilizers. Marshall’s May 30, 2025, press release states that plant biostimulants “have demonstrated potential in advancing sustainable practices, including carbon sequestration and water quality enhancement.” According to the press release, the bill would also support research into the benefits of these technologies for soil health.
Bipartisan Bill Would Streamline FDA Review Of Nonprescription Sunscreens: On June 3, 2025, the Co-Chairs of the Congressional Skin Cancer Caucus, Representatives John Joyce, M.D. (R-PA), Debbie Dingell (D-MI), Dave Joyce (R-OH), and Deborah Ross (D-NC), introduced the Supporting Accessible, Flexible, and Effective (SAFE) Sunscreen Standards Act (H.R. 3686) to streamline the FDA review process of the effectiveness and safety of new ingredients for nonprescription sunscreens. According to Dave Joyce’s June 4, 2025, press release, the bill would:
Improve regulatory standards:
Directs FDA to establish clearer, more flexible standards for evaluating sunscreen ingredients;
Allows the use of real-world evidence, observational studies, and nontraditional scientific data to determine safety and effectiveness; and
Incorporates non-animal testing alternatives to align with modern research practices and ethical standards;
Requires FDA to update its final administrative order on pending sunscreen ingredients to:
Consider historical data on ingredients already used safely in the United States;
Reinforce that sunscreen is a proven cancer prevention tool; and
Use the new evidence and testing standards established in the bill; and
Increase transparency and reporting by requiring the Secretary of Health and Human Services to submit annual reports to Congress detailing:
Progress on implementing new standards;
How many applications were reviewed under the new process; and
FDA’s use of non-animal testing methods.
Bipartisan Legislation Would “Deliver Justice For PFAS-Impacted Families”: On June 5, 2025, Representatives Brian Fitzpatrick (R-PA) and Kristen McDonald Rivet (D-MI), Co-Chairs of the Congressional PFAS Task Force, introduced bipartisan legislation (H.R. 3761) to ensure greater transparency and accountability from DOD for communities impacted by widespread PFAS contamination. According to Fitzpatrick’s June 5, 2025, press release, the bill would establish a new high-level position at the Pentagon — Coordinator for PFAS-Impacted Defense Engagement — “to serve as a direct advocate for affected families, improve transparency, drive remediation, and ensure the government delivers answers, not delays.” The PFAS coordinator would be responsible for:
Engaging directly with affected communities to address concerns, ensure accountability, and provide updates on remediation efforts;
Streamlining communication between local stakeholders, advocacy organizations, and federal agencies; and
Driving progress on cleanup efforts with transparency and urgency.
MISCELLANEOUS
Petitions Filed To Add Chemicals To List Of Chemical Substances Subject To Superfund Excise Tax: On May 21, 2025, the Internal Revenue Service (IRS) announced that petitions have been filed to add the following chemicals to the list of taxable substances:
Ethylene propylene diene (EPDM) rubber (90 Fed. Reg. 21825): Petition filed by Exxon Mobil Corporation, an exporter of EPDM rubber;
Neo decanoic acid (90 Fed. Reg. 21824): Petition filed by Exxon Mobil Corporation, an exporter of neo decanoic acid;
Nonene (90 Fed. Reg. 21826): Petition filed by Exxon Mobil Corporation, an exporter of nonene;
Tridecyl alcohol (90 Fed. Reg. 21824): Petition filed by Exxon Mobil Corporation, an exporter of tridecyl alcohol; and
Tri-isononyl tri-mellitate (90 Fed. Reg. 21827): Petition filed by Exxon Mobil Corporation, an exporter of tri-isononyl tri-mellitate.
Comments on the petitions are due July 21, 2025.
Minnesota Extends Public Comment Period On Proposed PFAS Reporting Rule As Entities Voice Concerns About Compliance With Deadlines And Due Diligence Standards: On May 22, 2025, the Minnesota Pollution Control Agency (MPCA) held a public hearing on its “Proposed Permanent Rules Relating to PFAS in Products; Reporting and Fees” (proposed rule). Administrative Law Judge (ALJ) Jim Mortenson facilitated the hearing, which had more than 100 participants in attendance. MPCA has made available online the PowerPoint document used for the hearing presentation, the hearing exhibits, and a transcript of the hearing. The pre-hearing public comment period for the proposed rule closed on May 21, 2025. Under Minnesota administrative procedure, comments must be accepted for five days following a hearing on a proposed rule, and the overseeing ALJ may extend the comment period by no more than 20 days. Following the close of comments and a brief rebuttal period, the presiding ALJ will issue a report on the proposed rule within 30 days, unless an extension is granted. The post-hearing comment period for the proposed rule has been extended until 4:30 p.m. (CDT) on June 23, 2025. A rebuttal period of five business days, lasting from the close of the public comment period until 4:30 p.m. (CDT) on June 30, 2025, will follow. Persons may respond to public comments during this rebuttal period, but they may not submit new comments. Any person who wishes to comment on the rule or provide rebuttal may do so via e-comments, mail, or fax. MPCA will not accept comments submitted via e-mail. Comments must be received by MPCA by the end of the respective periods, so persons planning to submit comments or rebuttals via mail should ensure comments are sent with enough time to reach MPCA by the cutoff. More information on the public hearing is available in our May 29, 2025, memorandum.
President Signs EO To Restore Gold Standard For Science, Calls For Reevaluation Of Biden Administration’s Scientific Integrity Policies: On May 27, 2025, President Trump signed an EO on “Restoring Gold Standard Science.” 90 Fed. Reg. 22601. The EO states that the Trump Administration “is committed to restoring a gold standard for science to ensure that federally funded research is transparent, rigorous, and impactful, and that Federal decisions are informed by the most credible, reliable, and impartial scientific evidence available.” The EO restores the scientific integrity policies of the first Trump Administration and “ensures that agencies practice data transparency, acknowledge relevant scientific uncertainties, are transparent about the assumptions and likelihood of scenarios used, approach scientific findings objectively, and communicate scientific data accurately.” The EO directs the Director of the White House Office of Science and Technology Policy (OSTP), in consultation with the heads of relevant agencies, to issue guidance within 30 days for agencies on implementing “Gold Standard Science” in the conduct and management of their respective scientific activities. The EO defines Gold Standard Science as science conducted in a manner that is reproducible; transparent; communicative of error and uncertainty; collaborative and interdisciplinary; skeptical of its findings and assumptions; structured for falsifiability of hypotheses; subject to unbiased peer review; accepting of negative results as positive outcomes; and without conflicts of interest. Once OSTP publishes the guidance, the EO directs each agency head to update promptly applicable agency policies governing the production and use of scientific information, including scientific integrity policies, to implement the OSTP Director’s guidance. Within 60 days of the publication of OSTP’s guidance, agency heads must report to the OSTP Director on the actions taken to implement Gold Standard Science at their agency. More information on restoring the Gold Standard for Science is available in our June 5, 2025, memorandum.
EPA Publishes FY 2026 Budget In Brief: On May 30, 2025, EPA published its FY 2026 Budget in Brief. President Trump requested $4.16 billion for EPA for fiscal year (FY) 2026, a 54 percent decrease from the FY 2025 enacted budget level. According to EPA, the budget request supports 12,856 full-time equivalents (FTE), a decrease of 1,274 FTEs from the 2025 level, aligning with the President’s goal of streamlining the federal workforce. EPA states that it “is focused on a back-to-basics approach that will lower the cost of living, remove unnecessary barriers for business and industry, empower states, and return the Agency to administering core statutory obligations as Congress intended.” EPA notes that it is currently developing the FY 2026-2030 EPA Strategic Plan and states that the FY 2026 Budget will advance the EPA Administrator’s five strategic pillars: Clean Air, Land, and Water for Every American; Restore American Energy Dominance; Engage in Permitting Reform, Cooperative Federalism, and Cross-Agency Partnership; Develop Artificial Intelligence (AI) Capabilities; and Protect American Auto Jobs.
NTP Updates Report On Carcinogens Handbook On Methods For Conducting Cancer Hazard Evaluations: On June 2, 2025, the National Toxicology Program (NTP) announced the availability of The Report on Carcinogens Handbook on Methods Conducting Cancer Hazard Evaluations. An update to the 2015 version, it provides methods for conducting a robust and transparent evaluation to determine whether a substance is a cancer hazard. The topics covered include: developing and planning the evaluation framework; human exposure data evaluation; human cancer studies evaluation; experimental animal cancer studies evaluation; disposition and toxicokinetic data evaluation; mechanistic data evaluation; and evidence integration and cancer hazard conclusion.
AMS Conducting Referendum To Determine Whether To Continue Regulations Regarding National Paper And Paper-Based Packaging Research And Promotion Program: On June 3, 2025, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published a notice of referendum on the Paper and Paper-Based Packaging Promotion, Research and Information Order. 90 Fed. Reg. 23421. This document directs that a referendum be conducted among eligible domestic manufacturers and importers of paper and paper-based packaging to determine whether they favor continuance of AMS’s regulations regarding a national paper and paper-based packaging research and promotion program. AMS also announced an immediate moratorium on the collection of assessments under the program. The referendum will be conducted by express mail and electronic ballot from July 14, 2025, through July 25, 2025. Ballots delivered to AMS via express mail or electronic ballot must show proof of delivery by no later than 11:59 p.m. (EDT) on July 25, 2025. Eligible persons will receive a ballot through mail and may cast a ballot through express mail or electronic ballot. Each person who is an eligible domestic manufacturer or importer at the time of the referendum and during the representative period from January 1, 2024, through December 31, 2024, shall be entitled to cast a ballot in the referendum.
WDOE Proposes To Regulate PFAS In Certain Consumer Products: The Washington Department of Ecology (WDOE) issued a proposed rule on June 4, 2025, that would regulate PFAS in certain consumer products. Beginning January 1, 2027, the proposed rule would prohibit the intentional use of PFAS in:
Apparel and accessories;
Automotive washes; and
Cleaning products.
Under the proposed rule, manufacturers would be required to report by January 31, 2027, intentionally added PFAS in the following products manufactured on or after January 1, 2026:
Apparel for extreme and extended use;
Footwear;
Gear for recreation and travel;
Automotive waxes;
Cookware and kitchen supplies;
Firefighting personal protective equipment (PPE);
Floor waxes and polishes;
Hard surface sealers; and
Ski waxes.
Annual reports would be due thereafter. WDOE will hold online hearings on July 9 and July 10, 2025. Comments on the following draft documents are due July 20, 2025:
Proposed rule: Includes draft restrictions and reporting requirements on intentionally added PFAS in 12 product categories. This rulemaking focuses on requirements related to PFAS in 12 new product categories;
Preliminary Regulatory Analyses: Explains the potential costs and benefits of the proposed rule; and
Draft State Environmental Policy Act (SEPA) Determination of Non-Significance and Environmental Checklist: Describes potential environmental benefits of the proposed rule.
WDOE will review comments, consider revisions to the proposed rule and other rulemaking documents, and respond to comments. WDOE states that it expects to decide on rule adoption in November 2025.
ACGIH Updates Documentation; Second Comment Period Will Begin July 1, 2025: The American Conference of Governmental Industrial Hygienists (ACGIH®) announced on June 12, 2025, that the first half of the Threshold Limit Value (TLV®) Development Process for 2025 has ended. Updated documentation is now available on ACGIH’s website through Data Hub and for purchase as PDFs in ACGIH’s Publications Store. ACGIH has posted the updated list of Notices of Intended Changes (NIC) and adopted substances. ACGIH notes that the second comment period will open July 1, 2025. ACGIH encourages further comment for the second half of the year. Comments are due September 30, 2025, with ratification occurring in November 2025, and updates in December 2025.
CPSC Publishes RFI On Reducing Regulatory Burdens: The U.S. Consumer Product Safety Commission (CPSC) published an RFI on June 12, 2025, seeking public comment on opportunities for CPSC to reduce burdens and costs of its existing rules, regulations, or practices without impacting safety. 90 Fed. Reg. 24791. According to CPSC, “[r]egulations and other practices that do not reasonably advance safety, but instead promote unscientific ideological agendas, create unnecessary burdens and costs, restrict consumer choice, or reduce competition, entrepreneurship, and innovation — and thereby restrain the American economy — should generally be eliminated or modified.” Comments are due August 11, 2025.
President’s FY 2026 Budget Requests Would Eliminate CSB, Reorganize CPSC: President Trump’s FY 2026 budget request for the Chemical Safety and Hazard Investigation Board (CSB) states that the President’s budget proposes to eliminate funding for CSB as part of the Trump Administration’s plans “to move the Nation towards fiscal responsibility and to redefine the proper role of the Federal Government.” The President’s budget request proposes $0 for CSB in FY 2026 with the expectation that CSB begin closing down during FY 2025. CSB’s emergency fund of $844,145 will be appropriated to cover costs associated with closing down the agency.
President Trump’s FY 2026 budget request for CPSC proposes to reorganize and transfer the functions of CPSC to the U.S. Department of Health and Human Services (HHS) Office of the Secretary as the Assistant Secretary for Consumer Product Safety (ASCPS). The budget request states that “[u]ntil the enactment of authorizing legislation to reorganize, the CPSC will continue to carry out its mission to protect the public from unreasonable risks of injury from consumer products as a standalone agency.” Under the budget request, the ASCPS would receive $135 million, $15.975 million below the FY 2025 enacted budget, to support 459 FTEs and operational costs, a reduction of 75 FTEs from the FY 2025 enacted budget. More information is available in our June 5, 2025, blog item.
U.S. Senate Proposes Changes to ITC and PTC
The United States Senate Committee on Finance this afternoon released draft text of its version of the “One Big Beautiful Bill,” which is available here. Although we are continuing to review the draft legislation, at a high level the bill would initiate a phasedown of the investment tax credit under Section 48E of the Code (ITC) and production tax credit under Section 45Y of the Code (PTC) applicable to solar and wind facilities based on when construction begins.
Solar and wind facilities would be eligible for the full ITC or PTC, as applicable, if construction begins in 2025.
If construction begins in 2026, such facilities would be eligible for 60 percent of the otherwise available ITC or PTC.
If construction begins in 2027, such facilities would be eligible for 20 percent of the otherwise available ITC or PTC.
Thereafter, such facilities would not be eligible for the ITC or PTC.
For other types of eligible facilities, the draft legislation would adopt a phasedown of the ITC (including for storage facilities) and PTC beginning in 2033, which is not a material deviation from current law.
This is draft legislation only, it has not been enacted into law, and there may be further changes to the legislation before enactment.
EPA Proposes Rescission of Power Plant GHG Standards Under Clean Air Act Section 111
Go-To Guide
EPA proposes to rescind all GHG limits for new and reconstructed gas turbines and existing and modified coal and oil/gas-fired power-generating units under CAA Sections 111(b) and (d).
EPA concludes that Section 111 requires a finding that a source category ‘“causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare”’ prior to regulating a new pollutant, regardless of whether EPA has previously listed the source category for a separate pollutant(s).
EPA reinterprets the statutory phrase “contributes significantly” to require a proximate-cause-based nexus between the specific pollutant, the source category, and the extent of contribution required to trigger regulation based on the type of emissions. EPA determines it has the discretion to consider policy factors in making the determination, and if the cost of achieving the desired emission reductions is unreasonable, then regulation is not warranted.
Under its alternative proposal, the agency withdraws its prior conclusions that carbon capture and sequestration/storage (CCS) and natural gas co-firing are “adequately demonstrated,” commercially available, and cost-effective systems of emission reduction to reduce GHG emissions from EGUs.
The proposed rule implicitly challenges EPA’s 2009 Endangerment Finding—a finding made in response to the Supreme Court’s direction in Massachusetts v. EPA, 547 U.S. 497 (2007)—and signals potential reconsideration of GHG regulation in other sectors.
The proposal reflects the Trump administration’s stated objective to reduce regulatory burdens and bolster domestic energy production. EPA estimates nearly $1 billion in annual cost savings across the utility sector if the rule is finalized: it also projects that the proposal will result in PM2.5 and ozone-related health costs of $76-$130 billion annually.
After more than a decade of regulatory flip flopping on greenhouse gas (GHG) emission limits from power plants and corresponding litigation, the U.S. Environmental Protection Agency (EPA) proposes to rescind all GHG limits for fossil fuel-fired power plants promulgated under Clean Air Act (CAA) Sections 111(b) and 111(d). On June 11, 2025, EPA issued a proposed rule that repeals carbon pollution standards for new and reconstructed gas turbines and existing and modified coal and oil/gas-fired units (collectively, “electric generating units” or “EGUs”). See Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units (“Proposed Rule”).
The Proposed Rule follows executive orders directing EPA and other federal agencies to review existing regulations that may inhibit domestic energy development and security—and, specifically, to develop new regulatory frameworks that would reinvigorate the coal industry. The Proposed Rule is based on a new scientific and economic framework that runs counter to the agency’s 2009 Endangerment Finding and broader efforts to regulate GHGs. (See GT E2 Blog: “EPA Announces Broad Suite of Pollution Regulations for Power Plants,” May 7, 2024.)
EPA’s Reinterpretation of “Contributes Significantly” Under Section 111
The core of EPA’s proposal is a reinterpretation of the agency’s 2015 reading of 42 U.S.C. § 7411(b)(1)(A) (“Section 111”). Section 111 requires EPA to list source categories that “contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare” and promulgate standards of performance to regulate emissions from the listed source categories.
In 2015, EPA concluded it did not need to make a significant contribution finding to regulate GHG emissions from EGUs because the agency had already listed these sources under Section 111 in 1971 and 1977 and issued standards of performance in 1979. Alternatively, if required to make a GHG-specific finding, EPA determined the 2009 Endangerment Finding would suffice.
In the 2025 Proposed Rule, EPA first declared that a separate, GHG-specific significant contribution finding is a prerequisite to regulating EGU emissions. Then, EPA determined that a significant contribution finding must be based on:
1.The “influence, effect, or usefulness of finding such contribution,” accounting for policy considerations. Emissions are “not significant” if regulating them would “have little effect on dangerous air pollution” or “would not be useful” given an administration’s policies for the source category. The EPA Administrator has discretion in determining whether a source category causes or significantly contributes to air pollution.
2.The cost to regulate emissions from the proposed source category. Previously, EPA did not interpret Section 111 as requiring the agency to consider regulatory cost as part of the significant contribution finding, and only considered cost as part of crafting standards of performance to regulate emissions from a listed source category.
Applying its new standard, EPA concluded that EGU emissions do not “contribute significantly” to air pollution which may endanger public health or welfare and warrant regulation under Section 111. Although the source category accounts for approximately 25% of total U.S. GHG emissions according to EPA data, EPA found the volume of GHG emissions from EGUs compared to global emissions relegates the U.S. EGU emissions to a non-significant role. Additionally, EPA believes the causal role of U.S. EGU emissions to the potential danger to public health and welfare from climate change is too attenuated for regulation.
Implications for the 2009 Endangerment Finding
In 2015, EPA determined its 2009 Endangerment Finding provided an alternative basis to regulate GHG emissions from EGUs under Section 111(b) because the Endangerment Finding concluded that six well-mixed greenhouse gases, including CO₂, may reasonably be anticipated to endanger public health and welfare. The Proposed Rule rejects this rationale, arguing the “best reading” of Section 111 requires pollutant-specific and source-category specific significant contribution findings. The implication is EPA cannot rely on the 2009 Endangerment Finding as a sufficient basis for regulating GHG emissions from any appropriately listed source category. By introducing a new legal prerequisite to regulate under Section 111, the Proposed Rule raises questions about the sufficiency of the 2009 Endangerment Finding as a regulatory cornerstone and signals a broader effort to either revoke or limit its applicability to stationary source categories.
EPA’s Alternative Proposal: Reject and Repeal CCS and Fuel-Switching BSER
Once EPA lists a source category under Section 111, EPA must issue emission performance standards for the sources in that category based on the “best system of emission reduction [BSER] which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”
As an alternative to determining that EGU GHG emissions do not contribute significantly to dangerous air pollution and therefore cannot be regulated under Section 111, the Proposed Rule includes a proposal to repeal specific portions of 40 CFR part 60, subparts TTTTa and UUUUb. These regulations contain the emission guidelines and BSER determinations for coal-fired steam generating units undertaking a large modification and phase 2 CCS-based requirements, and existing fossil fuel-fired steam generating units.
EPA proposes to withdraw its 2024 determination that CCS is the BSER to achieve a 90% reduction in CO₂ emissions from existing and modified EGUs because CCS has not been adequately demonstrated and the cost is not reasonable. Specifically, EPA states: (1) 90% capture from EGU flue gas has not been demonstrated at commercial scale and the limited projects cited in the 2024 rule suffered from reliability issues; (2) the capital costs of onsite capture systems, and compression and pipeline infrastructure, remain prohibitively high; and (3) CCS capture, pipeline, and sequestration infrastructure cannot be deployed at scale by the January 1, 2032, compliance date.
The Proposed Rule also would revoke EPA’s prior finding that 40% natural gas co-firing is BSER for existing, medium-term coal-fired EGUs. EPA believes coal-fired steam generating units “will continue to comprise a substantial portion of the nation’s electricity supply” and using natural gas for co-firing may have significant adverse effects on the energy system given the growing demand for natural gas domestically and abroad. EPA further determined that co-firing natural gas in a coal-fired unit is an example of impermissible generation shifting invalidated in West Virginia v. EPA, 597 U.S. 697 (2022), because it likely would require significant new infrastructure and modification or additional burners. Like its CCS determination, EPA also stated it does not believe sufficient natural gas pipeline infrastructure could be constructed by the January 1, 2030, compliance date to implement the BSER.
Implications for OOOOb/c and Other Sector Rules
The reinterpretation of “contributes significantly” raises questions about the legal foundations of EPA’s rules to regulate methane in the oil and gas sector codified at 40 C.F.R. Part 60, subparts OOOOa, OOOOb, and OOOOc. In those rules, EPA asserted a new significant contribution finding was unnecessary for already-listed categories and that oil and gas operations emit methane in sufficient volumes to justify regulation. The current proposal undercuts both rationales. EPA now explicitly rejects volume of emissions as a sole basis for regulating. If high-GHG emitting categories like fossil fuel-fired EGUs do not satisfy the statutory threshold, regulations for sectors that emit fewer GHGs will be up for debate.
Consistent with this administration’s concurrent policy of empowering states—particularly through the CAA’s cooperative federalism framework—the proposal strongly reemphasizes the “remaining useful life and other factors” (RULOF) discretion under Section 111(d), which EPA previously narrowed in favor of uniform standards. Refocusing on RULOF would give states substantially more flexibility in crafting existing source compliance plans for power plants and oil and gas sources.
GT Insights
EPA will launch a 45-day public comment period once the Proposed Rule is published in the Federal Register. The agency also will hold a virtual public hearing. EPA is soliciting feedback on numerous issues in the proposal, including how the agency’s statutory interpretation squares with recent Supreme Court cases. Stakeholders—including electric utilities, state regulators, and technology developers—may consider submitting comments about EPA’s revised interpretation of Section 111, the feasibility of CCS and fuel-switching technologies, and the broader implications for GHG regulation across sectors.
The proposal represents a major shift in EPA’s approach to regulating the power sector and its interpretation of Section 111 for all industrial sectors. If finalized, the Proposed Rule would have broad implications for GHG regulation across other sectors—including oil and gas—and for EPA’s 2009 Endangerment Finding. It also may affect investments in CCS technology and infrastructure.
Litigation is likely regardless of the Proposed Rule’s final form. In the meantime, various source categories should consider how the Proposed Rule would affect their governing regulations, ongoing or forthcoming litigation and reconsideration of those regulations, and how a rollback of GHG regulation under the CAA might impact their businesses and operations.