The EPA recently released the “Cumulative Impacts Addendum to EPA Legal Tools to Advance Environmental Justice (EJ Legal Tools).” It provides a collection of examples of the Agency’s legal authorities to identify and address cumulative impacts through a range of actions, including permitting, regulations, and grants, in order to consider the lived experience of communities overburdened by pollution and advance environmental justice (EJ).

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The addendum builds upon EJ Legal Tools, which the EPA’s Office of the General Counsel (OGC) released in May 2022 to provide EPA decision-makers and partners with the identification of a wide range of authorities that can be deployed to address the cumulative impacts of pollutants in the environment and other factors affecting human health and well-being that have a disproportionate impact on communities with EJ concerns.

The EPA’s Office of Research and Development (ORD) defines “cumulative impacts” as the totality of exposures to combinations of chemical and nonchemical stressors and their effects on health, well-being, and quality of life outcomes.

Examples of the EPA’s authority to address cumulative impacts within EJ communities include:

• Standard-setting
• Permitting
• Cleanup
• Emergency response
• Funding
• Planning
• State program oversight
• Initiating administrative or judicial action in situations in which there is actual or the potential for imminent and substantial endangerment

Although the addendum is not legally binding, the EPA states it is meant to serve “as a guide for Agency attorneys examining the scope of the Agency’s authority to address cumulative impacts in specific scenarios.” It provides examples for the application of several environmental statutes, including:

• Clean Air Act (CAA)
• Clean Water Act (CWA)
• Resource Conservation and Recovery Act (RCRA)
• Emergency Planning and Community Right-to-Know Act (EPCRA)
• Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

CAA

The CAA provides the EPA with authority to review and revise the National Ambient Air Quality Standards (NAAQS). NAAQS reviews provide the Agency with the opportunity to assess multipathway exposures to criteria pollutants and consider the cumulative impacts of a pollutant.

For example, in reviewing the NAAQS for lead, the EPA has evaluated risk from both inhalation and ingestion pathways for both recently emitted lead and for lead that was previously emitted to the air. The EPA addresses risk from lead that was emitted to air, deposited as dust, and then ingested just as it addresses risk from lead that was emitted to air and then inhaled.

The CAA also provides the EPA with authority to reopen a permit if the administrator finds cause exists to terminate, modify, or revoke and reissue a permit. The EPA may consider cumulative impacts to help prioritize and decide which among the thousands of Title V operating permits the Agency will scrutinize to ensure they are consistent with the requirements of the CAA.

CWA

Under the CWA, “the U.S. Army Corps of Engineers is required to conduct a public interest review prior to issuing a 404 permit authorizing the discharge of dredged or fill material into federally regulated waters,” says a JD Supra article by law firm Goldberg Segalla. “The EPA could provide comments identifying [EJ] concerns, including cumulative impacts. The CWA’s section 303(d) program also presents numerous opportunities for the EPA to consider cumulative impacts. For instance, when developing a Total Maximum Daily Load (TMDL) for impaired waters, the EPA could allocate a lesser share of pollutant loads to discharges in communities experiencing greater cumulative impacts.”

RCRA

RCRA requires the EPA to promulgate regulations establishing standards applicable to generators, transporters, and owners and operators of hazardous waste treatment, storage, and disposal facilities “as may be necessary to protect human health and the environment.” RCRA also calls for the EPA to provide “public participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program.”

If the EPA determines that “the presence of any hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or the release of any such waste from such facility or site may present a substantial hazard to human health or the environment,” the Agency may order a facility owner or operator to conduct reasonable monitoring, testing, analysis, and reporting to ascertain the nature and extent of such hazard. Authority under the act also allows the Agency to issue RCRA Section 3013 orders to owners/operators to assess cumulative impacts of their activities and issue site-specific follow-up activities.

EPCRA

EPCRA requires Local Emergency Planning Committees to prepare emergency response plans for facilities that contain certain amounts of designated extremely hazardous substances. Under this regulation, the EPA could publish guidance on considering EJ and cumulative impacts issues in preparing and implementing emergency plans that would assist localities in determining whether communities may require special medical attention in the event of a chemical release because of cumulative exposures to hazardous substances, consumption patterns, or sensitive populations.

CERCLA

CERCLA mandates the EPA to take response measures deemed “necessary to protect the public health or welfare or the environment,” which “could be readily interpreted to provide the legal authority for considering cumulative impacts, including accumulated or aggregate impacts on human health, in taking response actions,” the addendum states. Taking potential EJ and cumulative impacts into account under CERCLA could provide data to revise the Hazard Ranking System (HRS) screening, which would likely lead to new rulemaking.

Takeaway

“By applying these various authorities, it is EPA’s goal to lay the groundwork for future governmental actions and stakeholder engagement to address cumulative impacts in communities with [EJ] concerns and to help accelerate the integration of [EJ] and cumulative impacts considerations into its policies, programs, and activities,” advises Goldberg Segalla. “However, the EPA cautions that while many of its legal authorities are clear, others may involve interpretive issues or require further analysis and consideration making it likely we will see many of these issues litigated in the courts and/or administrative tribunals. Therefore, the regulated community should take a proactive posture now by looking at their operations to identify any cumulative impacts and/or [EJ] concerns at their facilities that could be cause for concern by the EPA in the future.”