EPA Delays Effective Date of TCE Risk Management Rule
On January 28, 2025, the U.S. Environmental Protection Agency (EPA) issued a final rule delaying the effective date of four rules, including the December 17, 2024, final risk management rule for trichloroethylene (TCE) issued under Section 6(a) of the Toxic Substances Control Act (TSCA), until March 21, 2025. 90 Fed. Reg. 8254. EPA states that it is delaying the effective dates of the rules in response to President Trump’s January 20, 2025, memorandum entitled “Regulatory Freeze Pending Review.” The memorandum directed the heads of executive departments and agencies to consider postponing for 60 days from the date of the memorandum the effective date for any rules published in the Federal Register that had not yet taken effect for the purpose of reviewing any questions of fact, law, and policy that the rules may raise. According to EPA, 13 petitions for review of the final TCE rule were filed in various federal appellate courts. On January 13, 2025, the Fifth Circuit Court of Appeals granted a petitioner’s motion to stay temporarily the TCE rule’s effective date. The petitions were then consolidated by the Judicial Panel for Multidistrict Litigation and transferred to the Third Circuit Court of Appeals. The Third Circuit issued a January 16, 2025, order leaving the temporary stay of the effective date in place pending briefing on whether the temporary stay of the effective date should remain in effect. EPA notes that because of the court decisions, the TCE rule never went into effect and is therefore also covered by the terms of the Regulatory Freeze Pending Review memorandum. As reported in our January 24, 2025, blog item, Representatives Diana Harshbarger (R-TN) and Mariannette Miller-Meeks (R-IA) introduced a resolution (H.J. Res. 27) expressing congressional disapproval of EPA’s final TCE rule. The joint resolution is an attempt to use the Congressional Review Act (CRA) to overturn the rule. More information on the final TCE rule is available in our January 13, 2025, memorandum.
Trump Administration Freezes All Environmental Litigation
The Trump Administration has issued a memo directing a temporary freeze on all environmental litigation to allow for review and potential reconsideration by the new administration of its position in these matters.
This pause applies to any court filings, including legal briefs, new case filings, or pending settlements. Further, the Administration has reassigned several career civil service senior managers, including the chiefs of the natural resources, environmental enforcement, environmental crimes, and appellate section, all housed within the Environment and Natural Resources Division of the US Department of Justice (DOJ). The four civil servants have been reassigned to work on immigration-related matters.
Closely related, on January 24, Acting US Environmental Protection Agency (EPA) Administrator James Payne directed an immediate temporary cessation of all communications with external parties, with the following exceptions:
Communications with state and other federal agencies not involving enforcement issues.
Communications with relevant parties involving imports.
Agency inspectors are allowed to conduct inspections.
It is unclear how long this order will remain in effect, but as with the DOJ directive, the intent appears to allow the new administrative to familiarize itself with current issues and allow for a potential change in course.
These actions make clear that the Trump Administration is moving quickly to take charge of environmental policy and enforcement at DOJ and EPA. We will continue to monitor these developments as they unfold under the new administration.
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Trump 2.0 Executive Orders; Shock and Awe
Overview
Since his inauguration on 20 January 2025, President Donald J. Trump has signed dozens of executive orders and presidential memoranda on topics including, but not limited to, energy and the environment; immigration; international trade; foreign policy; diversity, equity and inclusion (DEI); transforming the civil service and federal government; and technology. These presidential actions include recission orders of Biden-era regulations, withdrawal orders from international organizations and agreements, and orders implementing the administration’s affirmative policy objectives. These actions are indicative of the broader “America First” policy agenda set forth by President Trump throughout his campaign and signal key priority areas for his administration in the coming months.
End of the Biden Era
It is typical for an incoming president to issue a series of executive orders rescinding prior executive actions that conflict with the new administration’s agenda. For example, in former President Biden’s first 100 days in office, he reversed 62 of President Trump’s executive orders from his first term in office. In his first week back in office, President Trump has rolled back over 50 of President Biden’s executive actions. These Biden-era policies included topics such as ethics requirements for presidential appointees, COVID-19 response mechanisms, the enactment of health equity task forces, labor protections for federal workers, and efforts to mitigate climate change, among others.
In addition to rescinding former President Biden’s executive orders, President Trump issued a series of orders that temporarily suspended pending rules and programs of the Biden administration. First, President Trump instated a regulatory freeze pending review on all proposed, pending, or finalized agency rules that have not yet been enacted. The freeze includes finalized rules that went unpublished in the Federal Register before the end of the Biden administration, published rules that have not yet taken effect, and any “regulatory actions . . . guidance documents . . . or substantive action” from federal agencies. President Trump also issued a hiring freeze on any new federal civilian employees, exempting military and immigration enforcement positions.
Moreover, the Office of Management and Budget (OMB) issued an internal memo on Monday temporarily pausing federal grants, loans, and other financial assistance programs. However, the OMB later clarified that the pause only applies to programs implicated by seven of President Trump’s executive orders, and was particularly meant to target, among other things, ending policies such as “DEI, the green new deal, and funding nongovernmental organizations that undermine the national interest.” Shortly before it was to take effect, a temporary stay was issued by the U.S. District Court for the District of Columbia through 3 February 2025. On Wednesday, OMB announced that the original memo has been rescinded in light of widespread confusion on its potential implications. The seven individual EOs originally mentioned still remain effective.
Looking Ahead: President Trump’s Agenda
Through this round of executive actions, President Trump has demonstrated his intention to utilize the full power of the presidency, in tandem with Republican control of Congress, to quickly enact his “America First” agenda. President Trump has identified key policy areas he plans to address in his second term, which primarily include energy dominance, immigration enforcement, global competition, undoing “woke” Biden-era policies, and American independence.
In keeping with these campaign priorities, he has ordered the end of DEI within the federal government and directed federal agencies to investigate DEI efforts in the private sector, declared national emergencies on energy and immigration, ordered a review of U.S. trade imbalances in preparation for widespread tariffs, delayed the ban on TikTok, withdrew from the World Health Organization and Paris Climate Agreement, elevated domestic artificial intelligence (AI) technology, and renamed the Gulf of Mexico to the “Gulf of America.”
Conclusion
Although the Trump administration has a clear and focused policy and regulatory agenda, and can work alongside a Republican-led Congress, narrow margins of majority remain in both chambers which will, at times, necessitate bipartisanship. As such, we expect President Trump to continue working to take action on issues in which he can act unilaterally so as to narrow the scope of policies that congressional Republicans must work to either enact via the budget reconciliation process, or build consensus with their Democrat counterparts.
Additional Authors: Lauren E. Hamma, Neeki Memarzadeh, and Jasper G. Noble
One Week to Go Until HM Treasury’s UK Green Taxonomy Consultation Closes
HM Treasury published the UK Green Taxonomy Consultation (the ‘‘Consultation’’) on 14 November 2024, and there is one week to go until the consultation window closes on 6 February 2025. The Consultation seeks views on the value of the UK government implementing a UK green taxonomy (the ‘‘Green Taxonomy’’) into its wider sustainable finance framework.
The Green Taxonomy — if introduced — is envisaged by the UK government to serve as a tool for financial market participants as a reference book for which economic activities are deemed to support climate, environmental or wider sustainability objectives and, in turn, increase sustainable investments and reduce greenwashing. The UK government’s proposed implementation of the Green Taxonomy forms part of its wider ambitions for the UK to be a leader in sustainable finance. Please see our alert here for further information: UK Doubles-Down on Sustainable Finance – Insights – Proskauer Rose LLP.
Notwithstanding the potential benefits of the Green Taxonomy on the UK investment industry, the UK government has noted that introducing a Green Taxonomy can be complex and that feedback the UK government has received on its value is ‘‘mixed’’.
The Consultation therefore seeks feedback on any market and regulatory use cases for the Green Taxonomy, as well as potential design features and characteristics which would maximise its usability and efficiency for investors and those seeking investment.
The UK government is also looking to understand whether the Green Taxonomy would complement existing sustainable finance policies and how best to facilitate its implementation. In particular, the Consultation focuses on whether and how the Green Taxonomy could achieve the following objectives:
mitigate greenwashing;
channel capital towards increased sustainable investments;
complement the UK’s existing sustainable finance framework; and
include design features to ensure maximum usability and efficiency, including:
interoperability with existing international taxonomies;
addressing the scope of the Green Taxonomy in terms of environmental objectives and sectors to be covered;
incorporation of the “Do no significant harm” principle, which states that progress towards one environmental objective should not cause significant harm to other environmental objectives; and
governance of the Green Taxonomy along with regular updates to it.
Stakeholders have until 6 February 2025 to provide their responses, which is now imminent.
Navigating the Nuclear Landscape: Understanding Thailand’s Laws and Approach
Amid growing calls for Thailand to embrace small nuclear power projects as a viable alternative to traditional energy sources, the country is exploring new avenues of using nuclear power for its energy future. One potential approach is the utilization of small modular reactors (SMRs) coupled with renewable energy sources.
According to the Draft Power Development Plan (PDP), which should come into effect from early 2025 to 2037, Thailand plans to introduce two SMRs in the Northeast and Southern regions. Each SMR will have a capacity of 300 MW and is expected to be operational towards the end of the plan period. The Electricity Generating Authority of Thailand (EGAT) will be responsible for the development and operation of these SMRs.
As part of this shift, experts from Hunton offer a comprehensive overview of the historical development of nuclear power in Thailand, the several types of nuclear power generation, and the current regulatory landscape. Our article also considers the potential for foreign investment in nuclear power in Thailand.
Historical Development of Nuclear Power in Thailand
In 1966, Thailand explored the possibility of constructing its inaugural nuclear power plant in Chonburi Province, which was to feature a 600 MW boiling water reactor. However, the discovery of natural gas in the Gulf of Thailand in 1978 resulted in the indefinite postponement of the project.
Fast forward to 2007, Thailand reconsidered the re-introduction of nuclear power. In the PDP2007, superseded by the PDP2010, Thailand planned to construct two 1000 MW nuclear power plants. In 2011, a ‘readiness report’ was submitted to the government, greenlighting the development of nuclear energy.
Following the Fukushima Daiichi Nuclear Power Plant incident in Japan in March 2011, however, the Thai government announced a three-year postponement of the project, which was subsequently extended to six years. In the PDP 2018, there was no mention of the development of nuclear power plants. In the current PDP 2024, which is pending regulatory approval, the proposal for the 600 MW SMRs (two sites at 300 MW each) has been suggested.
According to news reports, the PDP 2024 is facing delays due to disagreement among energy experts; however, it should be noted that the plan has already passed through a public hearing process.
According to the EGAT, in November 2024, Thailand’s electricity generation is heavily weighted towards natural gas, accounting for 61.67 percent of the total energy production. Coal (lignite) follows, contributing at 19.51 percent. Renewable energy sources, including hydropower and others, make up only 17.58 percent of the total. As such, under the premises of the PDP, Thailand is looking to utilize the PDP to increase the greater use of clean power, including nuclear power.
What Are the Different Types of Nuclear Power?
There are currently three different types of nuclear power utilized across the nuclear energy industry:
Boiling-Water Nuclear Reactors
In a boiling-water reactor system, the reactor core heats the water to extremely elevated temperatures, thus converting it directly into steam within the reactor vessel. This steam then drives a turbine generator, producing electricity.
Pressurized-Water Nuclear Reactors
In systems that utilize pressurized nuclear reactors, the core of the reactors heats water and keeps it under enough pressure to ensure the water does not turn into steam. This leads to extremely hot radioactive water flowing through tubes into a steam generator. A steam generator is a large cylinder filled with nonradioactive, or clean, water. Within this cylinder, thousands of tubes carry hot radioactive water from the reactor core, which heats the clean water to boiling, producing steam that will result in the creation of power. The radioactive water then returns to the reactor core for reheating before cycling back to the steam generator. The clean water can be sourced from various bodies of water, including oceans, lakes, or rivers.
Small Modular Reactors
In addition, technology providers are also marketing SMRs which can be deployed either as single or module plants, offering the possibility to combine nuclear power with alternative energy sources. SMRs are cutting-edge nuclear reactors with a power capacity of up to 300 MW each, roughly one-third of the output of traditional nuclear reactors. They are named SMRs because they are:
Small– physically a fraction of the size of a conventional nuclear power reactor.
Modular– making it possible for systems and components to be factory-assembled and transported as a unit to a location for installation.
Reactors– harnessing nuclear fission to generate heat to produce energy.
One of the advantages of utilizing SMRs is that they can be deployed in remote regions with less developed infrastructures, and they offer the possibility for synergetic hybrid energy systems that combine nuclear and alternative energy sources, including renewables.
To further explain Thailand’s approach to nuclear power, this update will now detail the relevant authorities and regulatory instruments.
The Office of Atoms for Peace
The Office of Atoms for Peace (OAP) is Thailand’s regulatory entity for nuclear power.
Established in 1961 following the enactment of the Atomic Energy for Peace Act, B.E. 2504 (1961), which was later repealed by the Nuclear Energy for Peace Act, B.E. 2559 (2016), as amended by the Nuclear Energy for Peace Act (No. 2), B.E. 2562 (2019) (the “Nuclear Act”), the OAP is responsible for the research and development of nuclear energy in Thailand. While Thailand did not include any information with regards to nuclear energy in the PDP 2018, it is believed that they were still considering the possibility of introducing nuclear energy into the power spectrum at the time. As such, the Nuclear Act in 2019 was introduced to ensure that the regulatory framework is there to support Thailand’s ambitions to include nuclear energy in its future energy mix.
In line with the Nuclear Act, the OAP is also responsible for numerous other nuclear power-related tasks, including licensing, inspection, and enforcement of nuclear safety regulations. As noted in the Thai press in mid-November 2024, the Energy Regulatory Commission (ERC) is in the process of adopting a Memorandum of Understanding (MOU) with the OAP to conduct a study on the various regulations needed for Thailand to adopt nuclear power.
The OAP will be responsible for overseeing nuclear safety, security, and safeguards. Meanwhile, the ERC will manage energy security and the electrical transmission system. Additionally, the OAP will issue permits in accordance with the Nuclear Act, while the ERC will handle licenses pertaining to its own regulatory framework.
What are the Current Regulations Governing Nuclear Power in Thailand?
The regulations governing nuclear power in Thailand are overseen by the OAP, which, in turn, reports to the Nuclear Energy for Peace Commission and the Ministry of Higher Education, Science, Research and Innovation. The primary legislation is the Nuclear Act, under which various secondary laws have been issued. Notable among these is the Ministerial Regulation on Permitting Nuclear Facility B.E. 2563 (2020), which outlines the requirements and procedures for obtaining permits to operate nuclear facilities in Thailand. It includes provisions for the application process, safety standards, and compliance measures that must be met by operators to ensure the safe use of nuclear energy within the country.
There are currently about 56 Ministerial Regulations and 67 Notices of the OAP that help regulate the nuclear energy industry in Thailand. While these various Ministerial Regulations and Notices are sufficient for the time being as Thailand is yet to introduce nuclear energy into its energy mix, we expect to see an uptick in regulatory instruments to ensure that Thailand’s regulatory regime is prepared for the introduction of SMRs.
Nevertheless, Thailand is still yet to adopt the PDP 2024, which is key to the future of nuclear energy in Thailand. While we cannot provide absolute certainty, we foresee that the PDP 2024 will be implemented during the course of 2025.
Recently, there have been some minor legislative changes, including the Notification on Permit Form for Import and Export of Radioactive Waste, which require a form that includes essential details such as the venue for waste management, the objectives of the imports and exports, among other necessary information. The Thai authorities are actively preparing a range of legislative processes to position the country for the adoption of nuclear power in the coming years. This preparation involves drafting and enacting new laws, updating existing regulations, and establishing frameworks to ensure the safe, secure, and efficient integration of nuclear energy into Thailand’s energy mix. These efforts aim to address various aspects such as safety standards, environmental protection, and public health, thereby ensuring a robust and sustainable approach to nuclear power adoption in the country.
Will Thailand Adopt Nuclear Power?
The most challenging aspect for the introduction of nuclear energy into the energy mix is public acceptance and political instability. This is mostly due in part to the Fukushima Daiichi Nuclear Power Plant incident in Japan, which has a severe and lasting impact on Thai people’s perception towards nuclear power.
We do believe; however, that with a growing, strong regulatory framework and the proposed adoption of the PDP 2024, Thailand should be able to adopt nuclear energy into its energy mix in the future.
With regards to a tentative adoption timeline, Thailand is expected to commission nuclear energy into its energy mix by circa 2037.
To further enhance Thailand’s nuclear power capabilities, the country is also looking to develop partnerships with countries that already have existing nuclear power regimes. For example, in mid-January 2025, the United States and Thailand signed an Agreement for Cooperation Concerning Peaceful Uses of Nuclear Energy (123 Agreement). The 123 Agreement aims to provide a comprehensive framework for the development of peaceful nuclear cooperation between the two countries, allowing for the export of nuclear components and materials from the US.
Can Foreigners Invest/Run Nuclear Power Operations in Thailand?
There are no foreign ownership restrictions on nuclear power producers or nuclear facility operators under the Energy Industry Act, B.E. 2550 (2007) and the Nuclear Act. Consequently, foreign investors are permitted to operate nuclear power plants in Thailand.
According to the Land Code, however, a company with over 49 percent of its registered share capital owned by foreigners is classified as a “foreigner,” even if it is incorporated and registered in Thailand. As a result, such foreign majority-owned company cannot own land outright in Thailand unless it receives explicit permission from the Prime Minister or is covered under specific laws, such as the amended Investment Promotion Act, B.E. 2520 (1977) of the Board of Investment (BOI) or the Industrial Estate Authority of Thailand Act, B.E. 2522 (1979) of the Industrial Estate Authority of Thailand (IEAT).
Regarding the BOI privileges and incentives, electricity generation from nuclear energy is not considered a BOI-promoted business at the moment. In any case, please note that the Energy Industry Act and the Nuclear Act require that the authorized director/representative of the project company must have Thai nationality or a place of residence in Thailand.
What’s Next for Thailand?
Thailand’s long, but persistent, journey towards integrating nuclear power into its energy mix is being marked by careful planning, regulatory development, and international cooperation. The potential introduction of SMRs represents a significant step towards a sustainable and low-carbon energy future.
While challenges such as public acceptance and political stability remain, the robust regulatory framework and strategic partnerships with countries experienced in nuclear power will provide a solid foundation for Thailand’s nuclear ambitions. To further complicate the situation, the PDP 2024 is yet to be fully announced.
As the country moves forward, continued efforts to address safety, environmental, and public health concerns will be crucial in ensuring the successful and secure adoption of nuclear energy in Thailand and the region.
As a leading law firm for projects and energy in Thailand, combined with Hunton’s global Nuclear Practice, we can support clients globally in navigating all aspects of the civilian nuclear industry.
EPA Releases Compliance Guidance for Workplace Chemical Protection Requirements in TSCA Risk Management Rules
On January 16, 2025, the U.S. Environmental Protection Agency (EPA) released a compliance guide to assist the regulated community in complying with Workplace Chemical Protection Program (WCPP) requirements for chemicals regulated under Section 6 of the Toxic Substances Control Act (TSCA). EPA states that a WCPP “is a chemical protection program designed to address unreasonable risk posed by chemical exposure to persons in occupational settings.” The compliance guide provides an overview of typical WCPP requirements that the regulated community may be subject to as part of a TSCA Section 6(a) rulemaking. As reported in our previous memoranda, in 2024, EPA issued final risk management rules with WCPP requirements for methylene chloride, perchloroethylene, trichloroethylene, and carbon tetrachloride.
According to EPA, the compliance guide is intended for owners and operators of businesses that manufacture (including import) or process, distribute in commerce, use, or dispose of a chemical regulated under TSCA Section 6 that is subject to the WCPP in EPA rules. EPA notes that the guide will also be of interest to people who may be exposed to these regulated chemicals in the workplace. The guide broadly addresses the requirements of a typical WCPP, including:
EPA TSCA occupational exposure limits (Existing Chemical Exposure Limits (ECEL) or EPA Short-Term Exposure Limits (EPA STEL)) designated under TSCA;
ECEL action levels;
Occupational exposure monitoring;
Regulated areas;
Direct dermal contact controls (DDCC);
Respirators;
Personal protective equipment (PPE);
Exposure control plans;
Recordkeeping; and
Downstream notifications.
EPA states that while the compliance guide “provides useful information to consider when implementing a WCPP, the regulated community should also consult the WCPP provisions within the applicable risk management rule.” Individual compliance guides for rules may also provide additional chemical-specific guidance. EPA has issued guides for methylene chloride, trichloroethylene, and for the use of perchloroethylene in dry cleaning (also available in Korean and Spanish) and energized electrical cleaning.
EPA’s diligence in preparing the compliance guide is commendable given all of the other demands on EPA’s time. Stakeholders are urged to review the guide as its contents could be of use to regulated entities.
Name That Chemical: California Adds New Requirement for Prop 65 Short-Form Warnings
Short-form warnings for products that may expose consumers to chemicals on California’s Prop 65 list must now include at least one chemical name to qualify for Prop 65’s “safe harbor” protections—with one caveat. Businesses may continue to use the previous version of the short-form warning on consumer products through the end of 2027.
Businesses risk steep penalties for failure to comply with Prop 65. Stay ahead by understanding the changes and creating proactive strategies to ensure you meet the requirements on time.
What is Prop 65?
California’s Proposition 65 requires businesses to provide a “clear and reasonable” warning before they knowingly and intentionally cause an exposure to a chemical listed as known to the state to cause cancer or reproductive toxicity.
Since 2016, businesses have had the option to use specific “safe harbor” short-form warning language to comply with Prop 65’s warning requirements (e.g., WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov). The short-form warnings were developed by the Office of Environmental Health Hazard Assessment (“OEHHA”) in response to stakeholders’ concerns that the full-length warning language would not fit on small products,[1] but were not limited to only small products. These warnings, unlike the full-length safe harbor warnings, did not require businesses to identify the specific chemical involved in the potential exposure.
New Regulations for Short-Form Warnings
On October 27, 2023, OEHHA published a Notice of Proposed Rulemaking to amend the short-form warnings, citing the overuse of short-form warnings and the need for additional consumer clarity. Specifically, OEHHA expressed concern that many businesses were using the short-form warning “prophylactically[,] because it protects from potential litigation and does not require identification of a specific chemical exposure for which the warning is being given,” which OEHHA believed “does not serve Proposition 65’s purpose of providing relevant hazard information to consumers about Proposition 65-listed chemicals in products they may use.”[2] On November 26, 2024, the Office of Administrative Law approved the rulemaking.
Under the new regulations, a short-form warning must state at least one chemical name for which the warning is being provided. The regulations also make explicit that short-form warnings may be used to provide safe harbor warnings for food products, and provide new tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.
The effective date for the amendments is January 1, 2025, but businesses selling consumer products may use the existing short-form warnings without identifying a chemical until December 31, 2027.
Below are some example short-form warnings for listed carcinogens under the new regulations:
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Risk of cancer from exposure to [NAME OF CHEMICAL]. See www.P65Warnings.ca.gov
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Can expose you to [NAME OF CHEMICAL], a carcinogen. See www.P65Warnings.ca.gov
Option for use on consumer products until December 31, 2027:
WARNING: Cancer – www.P65Warnings.ca.gov
The final regulatory text, as amended, can be viewed here.
For Your To-Do List
Don’t wait until December of 2027 to assess your Prop 65 compliance. Make a plan now to:
Review your warnings with legal counsel.
Assess what chemicals are present in your products.
Revamp product packaging.
Revise your website and online product descriptions.
Update your communications with your business partners.
FOOTNOTES
[1] https://oehha.ca.gov/proposition-65/crnr/proposed-amendments-regulations-clear-and-reasonable-warnings-safe-harbor
[2] Id.
Texas Railroad Commission’s New Environmental Rules: A Step Toward Sustainability or Business as Usual?
In 1984, while Ronald Reagan was securing a landslide reelection and Apple introduced the Macintosh, the Railroad Commission of Texas (RRC) last updated the state’s primary oil and gas waste regulations. Now, four decades later, the RRC is revisiting these rules to better align them with modern industry practices and rising demands for stronger environmental protections.
Oil and gas extraction methods have evolved dramatically since the 1980s. Hydraulic fracturing (fracking) and horizontal drilling have sparked a production boom, significantly increasing both the volume and complexity of waste generated. This waste includes drilling fluids, fracking chemicals, and produced water—all of which, if mishandled, pose serious risks to soil, water, and public health.
While most oil and gas wastes are exempt from federal hazardous waste laws under the Resource Conservation and Recovery Act, states maintain broad authority to regulate their disposal and management. In Texas, the RRC oversees this responsibility. However, increasing environmental concerns and evolving industry practices have driven calls for regulatory updates, resulting in the recent revisions in the RRC’s rules.
Key Changes in the New Rules
The new rules, published in the Texas Administrative Code (“TAC”) on January 3, 2025, reflect a multiyear effort by the RRC to modernize waste management, encourage and expand recycling, and strengthen groundwater protections. These changes aim to balance industry needs with environmental stewardship, though their impact will depend on implementation and enforcement when they take effect on July 1, 2025.
Oil and Gas Waste Pits and Produced Water Recycling Pits (16 TAC §§ 4.113-114). A major change consolidates provisions from Statewide Rule 8 (“Disposal of Oil and Gas Waste”) and Rule 57 (“Produced Water Recycling”) into a new subchapter. Key updates include:
Authorization for certain pits (e.g., reserve and mud circulation pits) to operate without a specific RRC permit, with new registration requirements.
Updated standards for pit liners, groundwater monitoring, and closure procedures.
Stricter location restrictions, construction standards, and closure requirements for produced water recycling pits.
Produced Water Recycling (16 TAC § 4.112). One of the most significant shifts is facilitating produced water recycling. Operators can recycle produced water for reuse in drilling, fracking, and completion operations without requiring an RRC permit. However, they must still meet specific design, groundwater monitoring, and siting requirements. This change reflects growing interest in recycling as a solution to mitigate environmental risks, especially in areas like the Permian Basin, where seismicity concerns are increasing.
Transportation of Oil and Gas Waste (16 Tex. Admin. §§ 4.190-195). The new rules introduce enhanced accountability for waste transportation. Notable provisions include:
Detailed manifests for waste characterization.
Special waste authorizations.
Enhanced recordkeeping for waste haulers, improving tracking and compliance.
Public Participation (16 Tex. Admin. § 4.125). To boost transparency and public involvement, the new rules require that affected individuals and entities be notified about permit applications for waste facility construction. The notice must include details about the application, the protest process, and the location of the proposed facility. Notices must be sent via registered or certified mail, and recipients have 30 days to protest. If a protest is filed, the applicant must respond within 30 days. If no protests are received, the permit may be issued. Protests may lead to a hearing, with notice given to all affected parties.
Recycling Drill Cuttings (16 Tex. Admin. §§ 4.301-302)The rules aim to promote recycling of drill cuttings for beneficial use. Operators must comply with specific treatment and recycling requirements. The Commission may approve permits for using treated drill cuttings in commercial products like lease pads or roads, provided the products meet engineering standards, ensure public safety, and avoid water pollution.
Reactions to the New Rules
The revisions have sparked mixed reactions. For the oil and gas industry, the rules provide much-needed clarity, particularly on produced water recycling and waste transportation. However, many changes merely codify existing practices—like new registration requirements for certain pits—so their day-to-day impact may be minimal. That said, the ability to recycle produced water presents an opportunity for operators to reduce disposal costs and environmental impacts, especially in areas with limited disposal well capacity.
Environmental groups and landowners, however, view the revisions as insufficient. While the new rules offer clearer guidance on waste management and promote recycling, critics argue they fall short in addressing critical environmental issues. Concerns include a lack of more stringent regulations on pit liners, groundwater monitoring, and disposal in sensitive areas. Environmental advocates are also frustrated by the RRC’s decision not to require operators to notify landowners about waste disposal activities on their property. Despite these concerns, the RRC maintains it lacks the statutory authority to require such notifications or consent.
Practical Considerations for Landowners
Landowners whose properties are affected by oil and gas operations may need to take proactive steps to protect their interests. Since mandatory landowner notification is not required, surface owners should negotiate specific lease provisions, such as:
Restrictions on the types of waste disposed of on their land.
Designated disposal locations and management methods.
Operator notification before disposal activities—or even consent for certain types of waste disposal.
Landowners may also seek additional safeguards, such as stricter pit liner requirements, enhanced groundwater monitoring, or more comprehensive closure plans for waste pits.
Looking Ahead
The RRC’s overhaul of its oil and gas waste management regulations marks a significant step toward modernizing Texas’s regulatory framework in response to changing industry practices and environmental concerns. However, the real impact of these revisions will depend on how they are implemented and enforced when they take effect on July 1, 2025. Stakeholders—from industry operators to environmental advocates—should carefully consider the potential implications. For landowners, consulting legal counsel may be wise to ensure their interests are protected under the new rules. These final regulations could shape Texas’s oil and gas industry and environmental stewardship for years to come.
Unfair Competition Defense Podcast-Episode 15: Insights on Chemical Litigation as It Relates to PFAS, Heavy Metals, and Prop 65 [Podcast]
You are invited to listen to Episode 15 of the Unfair Competition Defense Podcast, “Insights on Chemical Litigation As It Relates to PFAS, Heavy Metals, and Prop 65.”
In this episode, Greenberg Traurig shareholder Will Wagner joins hosts Adil Khan and Greg Nylen for a discussion on consumer claims related to chemical litigation, specifically focusing on false advertising and the nuances of Prop 65 enforcement in California.
Greenberg Traurig’s Unfair Competition Defense Podcast focuses on consumer protection statutes at the state and federal levels. Claims under these laws frequently are brought as proposed consumer class action litigation across many different industries. Each episode addresses key principles under these laws, new developments and, most importantly, defense strategies.
Drilling Down on Clean Energy: Geothermal Power Unlocked?
Currently, geothermal energy meets less than 1% of global energy demand. Moreover, due to geographical limitations, only a handful of countries account for almost 90% of global power generation through geothermal sources. However, that landscape is poised to change as the potential for geothermal energy generation grows. According to a recent International Energy Agency (IEA) report, with continued technological advancements, geothermal energy could meet up to 15% of electricity demand growth by 2050, equivalent to around 800 GW of geothermal power capacity. In monetary terms, the IEA projects that total investment in geothermal energy could reach $1 trillion cumulatively by 2035 and $2.5 trillion by 2050, peaking at approximately $140 billion per year.
Geothermal energy uses heat trapped in the earth’s subsurface to generate power or provide heating and cooling solutions. Geothermal power generation requires a combination of elements: heat, fluid, and rock permeability. The heat trapped underneath the earth’s surface naturally warms the water stored in porous rock or in underground aquifers. Some of this hot water is naturally released to the surface through hot springs and geysers, while another portion remains trapped in pockets of high heat. The vapor naturally flowing to the surface can be captured to generate electricity. Additionally, subsurface pockets of high heat can be accessed through wells, allowing the heat to be drawn up to the surface to generate electricity. Until recently, power generation through geothermal energy was limited to locations with easily accessible underground hydrothermal reservoirs.
Technological advancements, particularly those developed for oil fracking, have made it possible to access heat trapped at greater depths in areas without preexisting hydrothermal reservoirs, thus overcoming geographical limitations. According to the IEA, geothermal energy potential increases as you access greater depths. For example, at a depth of 2000 meters, there is a limited number of countries with geothermal conditions favorable for power generation. At 4000 meters, opportunities for power generation expand greatly. However, at 7000 meters, almost every region of the world has the potential to tap into these underground sources of heat to generate geothermal power. Currently, geothermal power generation has been available only for countries with hydrothermal reservoirs located up to 2000 meters below the surface.
There are two main next-generation geothermal technologies that can overcome reservoir dependency: enhanced geothermal systems (EGS) and closed-loop geothermal systems (CLGS). An EGS aims to expand an existing hydrothermal reservoir or create a new one using drilling, fracturing, and injection technologies developed for the oil and gas industry. In this approach, water is injected through an injection well to create or expand fractures in the rock. The water heated in the subsurface can then circulate through the rock and be recovered to the surface to drive turbines that generate power. In contrast, a CLGS involves drilling and sealing artificial closed-loop circuits to create an underground heat exchanger. A fluid that boils at a lower temperature than water is circulated through the system, and the resulting vapor can be used to generate power. In this closed-loop circuit, there is no chemical interaction between the fluid and the reservoir, as the fluid heats through conductive heat transfer alone.
Despite the potential of geothermal energy to contribute significantly to the energy transition, several challenges must be addressed and overcome. One major challenge lies in the regulatory frameworks governing geothermal projects. According to the IEA, in most jurisdictions, geothermal resources fall under the same regulatory frameworks as minerals or hydrocarbons, alongside additional regulations related to water management. This is the case notwithstanding the fact that geothermal projects may likely have a lesser footprint than mining or hydrocarbon projects in terms of water and land use and use of hazardous materials. For example, according to some estimates, geothermal projects in U.S. federal lands may currently trigger as many as six reviews under the National Environmental Policy Act. In some other jurisdictions, geothermal resources may also be treated as natural resources subject to an additional licensing regime. This lack of a specific legal and regulatory framework tailored to the particular characteristics of geothermal resources—as distinct from minerals and hydrocarbons—can make the approval process for geothermal projects both costly and lengthy.
The adoption of technologies originally developed for the oil and gas industry may revolutionize the geothermal energy sector by enabling previously inaccessible access to underground heat sources at greater depths. This breakthrough may help overcome the geographical limitations that have constrained geothermal power generation. As these technologies continue to advance and develop, the geothermal industry is poised for significant expansion as a key player in the transition to a more sustainable energy future.
However, several challenges must be addressed to facilitate this growth. Chief among these is the need to establish national legal and regulatory frameworks that account for the specific characteristics of the geothermal power generation industry, rather than applying existing frameworks designed for minerals or hydrocarbons.
Sources
International Energy Agency, The Future of Geothermal, December 2024.
National Geographic, Geothermal Energy, 2024.
US Department of Energy, Geothermal Technologies Office, Electricity Generation, 2024.
US Energy Information Administration, Where Geothermal Energy Is Found, 2024.
The Economist, Geothermal Energy Could Outperform Nuclear Power, Sept. 13, 2024.
Clean Technica, Google Agrees to Buy 115 MW of Geothermal Power from Fervo & NV Energy, 2024.
Meta, New Geothermal Energy Project to Support our Data Centers, Aug. 26, 2024.
The Keyword, A First-of-its-kind Geothermal Project Is Now Operational, Nov. 28, 2023.
US Department of Energy, Permitting for Geothermal Power Development Projects.
Pricing Considerations in the Aftermath of the California Wildfires
The devastating January 2025 wildfires in southern California prompted Governor Newsom to declare a state of emergency on January 7, 2025 for Los Angeles and Ventura counties. This triggered California laws around price gouging and pricing restrictions in the wake of the emergency. While other, overlapping states of emergency will impact how price restrictions are ultimately calculated and considered – including local emergencies, and a statewide emergency relating to the ongoing bird flu outbreak – that the unprecedented scale of the wildfires will undoubtedly lead to increased scrutiny of pricing practices during the immediate aftermath, recovery and rebuilding.
The California Penal Code prohibits selling, or offering for sale, covered products at a price more than 10% greater than the price offered for that good in the 30 days prior to the declaration of an emergency. While application and enforcement of the pricing restrictions can be complex, the key considerations to keep in mind are these.
When did price restrictions go into effect? January 7, 2025. The price restrictions immediately go into effect when the President of the United States, the Governor of California, or a city/county executive officer declare a state of emergency.
When do they expire? This will be a moving target in some places. The price limitations typically stay in effect for 30 days after the emergency declaration date, subject to extensions. For repair or reconstruction services or any services used in emergency cleanup, these typically stay in effect for an initial period of 180 days. Specifically for Los Angeles County, Governor Newson has already extended certain categories of pricing restrictions by executive order to remain in effect until January 7, 2026.
What is the price increase ceiling? 10% more than the price offered in the 30 days prior to the emergency declaration.
What if a seller starts selling a covered item only after a state of emergency is declared? That seller is prohibited from marking up the price of that item more than 50% of its costs.
Does this only apply to California-based businesses? No. The statute applies to all sellers, including manufacturers, wholesalers, individuals, distributors, and retailers, and to all kinds of sales.
What goods are covered? The statute covers a wide range of products such as: rental housing, building materials, gasoline, goods or services used for emergency cleanup, consumer food items, and medical supplies.
What are the potential consequences? Violations are criminally punishable by up to one year in jail and a fine up to $10,000 or civil penalties up to $2,500 per violation, injunctive relief, or mandatory restitution.
Where do they apply? Even when trigged by an emergency that is specifical to a particular geographic area, California Department of Justice interprets the statute to provide that the pricing restrictions are not restricted to the city or county where the emergency is declared, and that the statute is intended to prevent price gouging elsewhere in the state where this is increased consumer demand as a result of the emergency.
While the horizon for enforcement is long – the California statute provides a 4-year statute of limitations for bringing price gouging complaints – we have already seen the state eyeing enforcement opportunities. On January 22, 2025, the California Department of Justice (CDOJ) filed charges against a real estate agent. A couple who had lost their home in the wildfires applied to rent a property and were allegedly told the price would be raised 38% more than the prior advertised rate. The CDOJ has also announced that it has sent upwards of five hundred “warning letters” to hotels and landlords.
Considering the scope of pricing restrictions in place, and expected enforcement, businesses may want to consider additional diligence and documentation supporting compliance with pricing restrictions triggered by the California wildfires.
California Air Resources Board Solicits Input On California Greenhouse Gas Emissions Disclosure Laws
I recently published a post questioning the legality of the California Air Resources Board’s Enforcement Notice. The California legislature charged CARB with the responsibility of implementing SB 253 (Wiener) and SB 261 (Stern), both as amended by SB 219 (Wiener, Statutes of 2024). These bills, both enacted in 2023, require business entities formed under the laws of California, the laws of any other state of the United States or the District of Columbia, or under an act of the Congress of the United States to report specified greenhouse gas (GHG) emissions and climate related financial risks. Although these bills require disclosures by businesses meeting specified annual gross revenue thresholds, they will impose significant financial burdens on smaller businesses.
Last month, the CARB issued a notice soliciting public input concerning these bills. This is a prelude to formal rulemaking by the CARB. The deadline for comments is February 14, 2025. It remains to be seen, however, whether either of these bills will survive constitutional challenge. See As Foretold, California’s New Forced Speech Laws Are Being Challenged.