a mil
^Cm
EPA Legal Tools to Advance Environmental
Justice: Cumulative Impacts Addendum
December 2022
Office of General Counsel
U.S. Environmental Protection Agency
Washington, D.C. 20460
This document discusses a variety of federal statutory and regulatory provisions but does not
itself have legal effect and is not a substitute for those provisions and any legally binding
requirements that they may impose. It does not expressly or implicitly create, expand, or
limit any legal rights, obligations, responsibilities, expectations, or benefits to any person.
To the extent there is any inconsistency between this document and any statutes,
regulations or guidance, the latter take precedence. EPA retains discretion to use or deviate
from this document as appropriate.
Publication No.: 360R22002
-------
Table of Contents
INTRODUCTION 1
CHAPTER ONE: CLEAN AIR ACT PROGRAMS 5
I. New Source Performance Standards 5
II. National Ambient Air Quality Standards (NAAQS) (Standards and Implementation) 6
A. NAAQS Reviews 6
B. Attainment Date Extensions 7
C. Attainment Date Extensions - Particulate Matter 8
D. Ambient Air Monitoring 9
III. Air Toxics 9
A. Hazardous Air Pollutants 9
B. Solid Waste Combustion 10
IV. Permitting 10
A. Prevention of Significant Deterioration (PSD) Permitting Program 10
B. Title V Program 11
V. Accident Prevention Authorities 12
VI. Information Collection Authority 12
VII. Imminent and Substantial Endangerment (ISE) Authority 13
CHAPTER TWO: WATER PROGRAMS 15
I. Human Health Water Quality Criteria, Maximum Contaminant Level Goals, and Health
Advisories 15
II. Identifying Impaired Waters and Developing TMDLs 16
III. EPA Review of CWA Section 404 Permits 17
IV. Underground Injection Control (UIC) Area Permits 18
V. NPDES Permits for Stormwater and Pesticide Application 19
VI. Imminent and Substantial Endangerment 20
CHAPTER THREE: WASTE MANAGEMENT AND EMERGENCY RESPONSE
PROGRAMS 22
I. Resource Conservation and Recovery Act 22
A. RCRA Section 3004(a) - Contingency Plans 22
B. RCRA Sections 3004(u), 3004(v), and 3008(h) - Corrective Action for Continuing
Releases 23
C. RCRA Section 3013 Monitoring, Analysis and Testing 23
-------
D. RCRA Section 3019 - Exposure Information and Health Assessments 24
E. RCRA Section 7003 - Imminent and Substantial Endangerment 24
F. RCRA Section 9003 - Underground Storage Tanks 25
G. State Solid Waste Management Criteria 26
H. RCRA Section 3005(c)(3) - Omnibus Authority 26
I. Permit Conditions and Risk Assessments to Address Cumulative Impacts 27
J. Example of EPA RCRA Permitting Authority Addressing Cumulative Impacts 29
II. Oil Pollution Act 30
III. Emergency Planning and Community Right-to-Know Act 31
A. EPCRA Section 312(b) 31
B. EPCRA Section 313(e) 31
IV. Comprehensive Environmental Response, Compensation, and Liability Act 32
A. CERCLA Section 105(a)(8) 32
B. CERCLA Sections 104, 106 and 121 33
C. CERCLA Example 34
CHAPTER FOUR: PESTICIDES AND TOXICS PROGRAMS 35
I. Federal Insecticide, Fungicide, and Rodenticide Act and Federal Food, Drug, and Cosmetic
Act 35
A. FIFRA 35
B. FFDCA 36
II. Toxic Substances Control Act 37
A. Section 4 Testing 38
B. Potentially Exposed or Susceptible Subpopulations 38
C. Section 6 Risk Evaluation - Aggregate Exposure and Categories of Chemical
Substances 39
CHAPTER FIVE: ENVIRONMENTAL REVIEW PROGRAMS 40
I. EPA National Environmental Policy Act Compliance and CAA Section 309 Reviews 40
II. EPA NEPA Compliance 41
III. EPA's CAA Section 309 Review of Federal Agency EAs and EISs 42
CHAPTER SIX: CIVIL RIGHTS IN FEDERAL ASSISTANCE PROGRAMS 45
GLOSSARY OF SELECTED ABBREVIATIONS AND ACRONYMS 48
-------
INTRODUCTION
Advancing environmental justice and equity and protecting civil rights are fundamental
principles guiding how the U.S. Environmental Protection Agency (EPA or Agency) carries out
its mission to protect human health and the environment for all people, regardless of race, color,
national origin, limited English proficiency, disability, sex, or income. Individuals, communities,
and tribes are exposed to numerous stressors from a wide array of sources through multiple
pathways.1 These stressors can aggregate and accumulate overtime, affecting health and well-
being. In communities with environmental justice concerns2 and other underserved populations,'
the combined exposures to these stressors (i.e., cumulative impacts) often increases their
vulnerability to new or ongoing environmental hazards, which can cause, perpetuate, or
exacerbate disproportionate environmental and public health harms and risks. Addressing
cumulative impacts is an important tool for protecting public health in those communities and
populations.
In May 2022, EPA's Office of General Counsel issued EI*A Legal Tools to Advance
Environmental Justice {EJ Legal Tools)4 This Addendum builds on the discussion of cumulative
impacts in EJ Legal Tools, providing further detail and analysis on the Agency's legal authority
to address cumulative impacts affecting communities with environmental justice concerns. In
certain contexts, such actions include directly "addressing" cumulative impacts by taking
cumulative impacts into account during decision-making or taking actions to avoid or mitigate
cumulative impacts. In other contexts, the Agency action may involve the foundational steps of
identifying and assessing cumulative impacts related to an Agency action. This Addendum is not
an exhaustive or comprehensive compilation of the Agency's authority to address cumulative
impacts in all contexts; rather it provides illustrative examples and serves as a guide for Agency
attorneys examining the scope of the Agency's authority to address cumulative impacts in
specific scenarios.
EPA has a broad set of legal tools to address cumulative impacts to protect public health
and the environment of communities with environmental justice concerns, but some legal
1 EPA, Cumulative Impacts: Recommendations forORD Research (2022), EPA/600/R-22/014F,
https://www.epa.gov/healthresearch/cumulative-impacts-research [hereinafter 2022 ORD Cumulative Impacts
Report],
2 "Communities with environmental justice concerns" refers to communities overburdened by pollution as identified
pursuant to Executive Order 12898. Exec. Order 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629, 7629 (Feb. 16, 1994) [hereinafter E.O.
12898], https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf. Those communities include
communities of color, low-income communities, and Indigenous peoples.
3 "Underserved communities" refers to populations "sharing a particular characteristic, as well as geographic
communities, that have been systematically denied a full opportunity to participate in aspects of economic, social,
and civic life" as defined in Executive Order 13985. Exec. Order 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 Fed. Reg. 7009, 7009 (Jan 25, 2021), [hereinafter
E.O. 13985] https://www.federalregister.gov/docnments/2021/01/25/2C i3/advancing-racial-eauitv-and-
siipport-for-underserved-communities-through-the-federal-goveniment. Generally, where EPA has authority to
address cumulative impacts to communities with environmental justice concerns, EPA is also likely to have
authority to address impacts on underserved communities, consistent with Executive Order 13985. See EPA, EPA
Legal Tools to Advance Environmental Justice at 4 (2022) [hereinafter EJ Legal Tools],
https://www.epa.gov/ogc/epa-legal-tools-advance-enviromnentai-instice.
4 EJ Legal Tools, supra note 3, at 14.
1
-------
authorities may be narrower than others in the context of specific Agency actions. Under certain
authorities, "cumulative impacts" and similar terms5 are defined to encompass impacts from a
specific set of pollutants, from specific media exposure pathways (air, water, etc.), or from
particular stressors.6 Other governing authorities give the Agency discretion to identify and
consider the cumulative impact or burden of various stressors relevant to the Agency action
where necessary to protect public health.
For example, EPA's Office of Research and Development (ORD) has developed a
definition of "cumulative impacts" to inform its research and identifies illustrative stressors that
can impact communities with environmental justice concerns.7 In its report, ORD defines
"cumulative impacts" as "the totality of exposures to combinations of chemical and non-
chemical stressors and their effects on health, well-being, and quality of life outcomes."8 ORD
defines chemical stressors as "exogenous environmental compounds" released into the
environment that change or damage living organisms or ecosystems.9 ORD explains that non-
chemical stressors are "factors found in the built, natural, and social environments," including
factors such as the economy, community, home, school, demographics, safety, and welfare.10
Cumulative impacts characterize the "potential state of vulnerability or resilience" of
"individuals, geographically defined communities, or definable population groups."11
As detailed in the individual chapters below, EPA's legal authority to address cumulative
impacts in communities with environmental justice concerns permeates the full breadth of the
Agency's activities—including, for example, standard-setting, permitting, cleanup, emergency
response, funding, planning, state program oversight, and other decision-making; and initiating
administrative or judicial action in situations where there is actual or potential for imminent and
substantial endangerment. Whether and how EPA utilizes its legal authorities to address
cumulative impacts will depend, among other things, on the specific statutory, regulatory, policy,
scientific, and factual contexts at issue, as well as the resources available to the Agency.
5 Certain legal authorities use terms like "cumulative risk," "cumulative effects," "aggregate exposures," and other
similar terms referenced in this Addendum. These authorities address at least part of the cumulative impacts often
disproportionately affecting communities with environmental justice concerns and are some of the tools that EPA
can use to address the combined burden and exposure to chemical and non-chemical stressors on those communities.
6 Other laws and federal agencies may define "cumulative impacts" or similar terms differently. For example, the
Department of Health and Human Services (HHS) released an Environmental Justice Index in August 2022, which
defines "cumulative impacts" as "the total harm to human health that occurs from the combination of environmental
burden such as pollution and poor environmental conditions, pre-existing health conditions, and social factors such
as access to quality healthcare." HHS, Environmental Justice Index Fact Sheet at 1,
https://www.atsdr.cdc.gov/placeandhealtli/eii/docs/eii fact sfaeet.pdf.
7 2022 ORD Cumulative Impacts Report, supra note 1, at 3-7.
8 See id. at 5 (explaining that" [cumulative impacts include contemporary exposures to multiple stressors as well as
exposures throughout a person's lifetime. It is influenced by the distribution of stressors and encompasses both
direct and indirect effects to people through impacts on resources and the environment.").
9 Id. at 1 n.l.
10 Id. at 1 n.2, 5 n. 10; see also Social Determinants of Health: Know What Affects Health, CENTERS FOR DISEASE
Control and Prevention (defining "social determinants of health" as the conditions in the environments that
affect a wide range of health, functioning, and quality-of-life outcomes and risks, such as access to health care,
education, transportation, and healthy food), https://www.cdc.gov/socialdetermitiants/index.htm: What is EJScreen?,
EPA (including demographic indicators in addition to environmental indicators),
https://www.epa.gov/eiscreen/what-eiscreen.
11 2022 ORD Cumulative Impacts Report, supra note 1, at 5.
2
-------
Depending on these factors, how EPA addresses cumulative impacts that affect the environment
and public health and welfare of communities with environmental justice concerns can vary. In
certain contexts, EPA may be able to factor the combined exposures to stressors into its decision
when the Agency has authority or a mandate to take public health and welfare into account. In
other contexts, EPA may only be able to address a part of that combined exposure.12 In yet
others, addressing the cumulative impacts on a community may need to occur outside the context
of EPA's immediate decision, through a separate, coordinated application of other authorities
across program activities.
By applying authorities provided by Congress, EPA can lay the groundwork for future
governmental actions and stakeholder engagement to address cumulative impacts in communities
with environmental justice concerns. Cumulative impacts present health and welfare challenges
that may implicate many different local, state, tribal, and federal laws and agencies. EPA has a
key role in meeting those challenges. For instance, under its various information gathering,
research, and other authorities, EPA may assess and document cumulative impacts in a wide
range of Agency actions to inform decision-making. Such assessments can support action under
other EPA authorities and spur further engagement to address cumulative impacts beyond the
specific regulatory context originally at issue, including by stakeholders, such as: (1) state, local,
or tribal governments (who have legal authorities to address matters such as zoning, land use,
and local transportation that go beyond those provided by federal environmental laws); (2)
federal agencies with authorities beyond those provided to EPA; and (3) nongovernmental
stakeholders (including residents and community groups, local business, and the regulated
community) who can voluntarily address cumulative impacts.
Addressing cumulative impacts is also an inextricable component of federal
environmental justice and equity policy, and integral to protecting civil rights. Executive Order
12898, which lays the foundation for federal environmental justice policy, directs federal
agencies to identify "multiple and cumulative exposures" in environmental human health
analyses, whenever practicable and appropriate.13 Executive Order 14008 further directs
agencies to "make achieving environmental justice part of their missions by . . . addressing] the
disproportionately high and adverse . . . climate-related and other cumulative impacts on
disadvantaged communities."14 While cumulative impacts are not explicitly mentioned in
Executive Order 13985, which establishes federal equity policy, understanding cumulative
impacts is essential to addressing inequities in the implementation of laws, policies and programs
and promoting equal opportunity for underserved communities that have been denied fair, just,
12 In certain contexts, the term "cumulative impacts" may not encompass the combined exposures to chemical and
non-chemical stressors as defined by EPA's Office of Research and Development.
13 E.O. 12898, supra note 2, § 3-3, 3-301(b).
14 See Exec. Order 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619, 7629 (Jan. 27,
2021), https://www.fede ralre gister. gov/documents/202.1/02/0.1/2021-( Aling-the-climate-crisis-at-home-and-
abroad (directing federal agencies to "make achieving environmental justice part of their missions by developing
programs, policies, and activities to address the disproportionately high and adverse human health, environmental,
climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic
challenges of such impacts.") (emphasis added).
3
-------
and impartial treatment.15 With respect to laws such as Title VI of the Civil Rights Act of 1964,
as discussed in Chapter 6 below, EPA's broad mandate to ensure that the programs and activities
of recipients of federal financial assistance do not intentionally discriminate or have a
discriminatory effect grants EPA the authority to consider cumulative impacts. In its FY 2022-26
EPA Strategic Plan16 and E.O. 13985 Equity Action Plan,17 EPA has established goals and
priorities specifically directed at addressing cumulative impacts in its actions in order to advance
these federal environmental justice, equity, and civil rights policies.
This Addendum complements EPA Legal Tools by providing further detail and analysis,
and some illustrative examples of the Agency's authority to advance environmental justice and
equity by addressing cumulative impacts.18 This Addendum is intended as a reference for EPA
staff and decision makers—together with EPA's state, tribal, and local partners—to better
understand EPA's authorities to address cumulative impacts. It is also intended to foster
sustained dialogue among EPA programs, the Regions, the Office of General Counsel, and the
Offices of Regional Counsel. This dialogue should extend to state, tribal, and local partners,
many of which have independent authority obligating or granting them the discretion to address
cumulative impacts.19 Routine consideration of these issues should also assist efforts to ensure
compliance with civil rights laws administered by EPA, where appropriate.
This Addendum is not intended to prescribe when and how the Agency should undertake
specific actions, nor does it provide methodologies for how to conduct a cumulative impacts
assessment.20 While many of EPA's legal authorities are clear, others may involve interpretive
issues or call for further analysis and consideration of other legal issues. Without specific
context, this Addendum does not attempt to characterize any such legal issues. EPA program
staff should consult with EPA's Office of General Counsel or relevant Office of Regional
Counsel on legal considerations. Policy decisions about undertaking particular actions are the
responsibility of the Agency's programs, which consider a wide range of decision-making
factors, including resource constraints, as they look to advance environmental protection for all.
15 Exec. Order 13985, supra note 3. EPA's E.O. 13985 Equity Action Plan calls for developing and operationalizing
a comprehensive framework for considering cumulative impacts in relevant EPA decisions. EPA, E.O. 13985
Equity Action Plan: U.S. Environmental Protection Agency (2022), at 4-7 [hereinafter Equity Action
Plan], https://www.epa.gov/svstem/files/docnments/2022-04/epa eauitvactionplan april2022 508.pdf.
16 EPA, FY 2022-26 EPA Strategic Plan (2022) [hereinafter FY 2022-26 EPA Strategic Plan],
https://www.epa.gov/svstem/files/docnments/2022-03/fv-2022-2026-epa-strategic-plan.pdf.
17 Equity Action Plan, supra note 15.
18 EJ Legal Tools, supra note 3, at 4.
19 See, e.g., Massachusetts Environmental Policy Act, 301 Mass. Code Regs. § 11.07(6)(h); Mass. Gen. Laws ch.
2IN (2021); Environmental Justice Law, N.J. Stat. Ann. §§ 13:1D-157 (2020); N.Y. Comp. CodeR. &Regs. tit. 6,
§ 487 (2021); Cal. CodeRegs. tit. 14, § 15130; 2021 Colo. Sess. Laws 2722; 2020 Conn. Pub. Acts No. 20-6. See
also Tribal Cumulative Impact Assessment, MINN. CHIPPEWA TRIBE,
https://www.mnchippewatribe.org/impact assessment.html; Project Impact Analysis (PIA) Tool, Tahoe Regional
Planning Agency, fattps ://t rpa. shi nyapps. io/PI A_Too 1.
20 For examples of EPA resources for assessing cumulative impacts, see 2022 ORD Cumulative Impacts Report,
supra note 1; EPA, Technical Guidance for Assessing Environmental Justice in Regulatory Analysis
(June 2016), https://www.epa.gov/sites/defanit/files/2016-06/docnments/eit S.l.pdf In addition, EPA is
developing a framework on operationalizing the consideration of cumulative impacts. See FY 2022-26 EPA
Strategic Plan, supra note 16, at 33; Equity Action Plan at 4-7, supra note 15.
4
-------
CHAPTER ONE: CLEAN AIR ACT PROGRAMS
The Clean Air Act (CAA) includes various authorities that present, or may present,
opportunities to address cumulative impacts as part of a regulatory or decision-making process.
In certain contexts, such authorities could be used to address cumulative impacts affecting
communities with environmental justice concerns. The potential for taking cumulative impacts
into account varies widely across CAA provisions and programs. For many regulatory processes,
Congress has made clear where public health risks, including risks presented by cumulative
impacts, should be considered, and where such considerations or analyses are not required (or
even appropriate) as a prerequisite for Agency actions to protect public health and the
environment.
The CAA and its implementation—through the work of many actors, not just EPA—
present opportunities to address cumulative impacts beyond the discrete examples of potential
statutory authority discussed in this Addendum. The authorities identified herein are not intended
to be exhaustive but are rather illustrative of certain ways in which cumulative impacts could be
relevant in regulatory decision-making and other actions under the CAA. The highlighted
examples are intended to spur further thinking about opportunities to take cumulative impacts
into account in Agency decision-making. While the provisions identified in this chapter provide
authority for EPA to address cumulative impacts under the CAA, many of these authorities
provide opportunities for EPA to consider cumulative impacts as a matter of discretion.
Discussion of such examples does not necessarily obligate EPA to take cumulative impacts into
account in any particular action.
Whether and how EPA utilizes these and other authorities to address cumulative impacts
will depend on the specific statutory, regulatory, policy, scientific, and factual contexts at issue,
as well as the resources available to the Agency. In certain contexts, the terms "cumulative
impacts" and "cumulative risk" used in this chapter may not encompass the combined exposures
to stressors, but may refer instead to the cumulative, or aggregate, impacts of a specific set of
pollutants or in specific media exposure pathways.21 EPA program and regional offices should
consult with the relevant Office of General Counsel and Office of Regional Counsel attorneys
regarding potential legal issues associated with whether and how to consider and address
cumulative impacts to advance environmental justice through EPA's air programs.
I. New Source Performance Standards
Under CAA section 111, EPA's obligation to establish emission standards for a category
of stationary sources is triggered where the Administrator determines that the source category
"causes, or contributes significantly to, air pollution which may reasonably be anticipated to
endanger public health or welfare."22 As CAA section 111(b)(1)(A) indicates that such listings
are subject to the "judgment" of the Administrator, EPA has the discretion to prioritize the listing
21 See supra INTRODUCTION.
22 CAA § 111(b)(1)(A).
5
-------
of source categories meeting the statutory standard that also contribute to cumulative impacts of
multiple pollutants.23
After listing a source category, EPA is required to promulgate standards of performance
for new sources pursuant to CAA section 111(b)(1)(B) and, for certain pollutants, to promulgate
regulations pursuant to section 111(d) (termed "emission guidelines") under which states
establish standards of performance for existing sources. And in prioritizing development of new
source performance standards under section 111(b)(1)(B) for listed source categories, EPA has
the discretion to prioritize addressing source categories that are more likely to contribute,
together with air pollution from other sectors, to the endangerment of public health or welfare.
For example, in determining the priorities for the promulgation of standards for listed source
categories pursuant to section 111(f), EPA determined that greater priority should be given to
source categories located in high population areas or areas with additional pollution contributions
from other sources.24 EPA has promulgated standards pursuant to section 111(b) for all currently
listed source categories and is required by statute to review and, if appropriate, revise those
standards at least every eight years. EPA has authority to review and revise the standards of
performance more quickly if it decides that is appropriate, including when EPA determines that a
source category contributes to cumulative impacts in communities with environmental justice
concerns. EPA may also prioritize the issuance of emission guidelines pursuant to section 111(d)
for such source categories, where authorized under the statute.
II. National Ambient Air Quality Standards (NAAQS) (Standards and
Implementation)
A. NAAQS Reviews
CAA section 109(d) directs EPA to periodically review and revise, as appropriate, the
NAAQS, which are designed "to protect the public health" and the public welfare. In setting the
NAAQS, EPA focuses on the health effects on population groups that are at higher risk of
adverse health effects. Reviews of the NAAQS offer opportunities for assessing multi-pathway
exposures to a criteria pollutant,25 where appropriate. For example, in reviewing the NAAQS for
lead, 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. 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. This assessment of multi-pathway exposure to a particular
criteria pollutant allows for EPA to take into account the cumulative impacts of that pollutant in
reviewing the NAAQS.
23 See, e.g., EPA, Revised Prioritized List of Source Categories forNSPS Promulgation (1979),
https://go.nsa.gov/xS9UF.
24 EPA, Priorities for New Source Performance Standards Under the Clean Air Act Amendments of
1977 at § 2.5.5 (1978), https://go.nsa.gov/xS9Un.
25 Criteria pollutants include carbon monoxide (CO), lead (Pb), ground-level ozone (O3), particulate matter (PM),
oxides of sulfur (SOx), and oxides of nitrogen (NOx).
6
-------
B. Attainment Date Extensions
The attainment date extension provisions of the CAA26 provide that "[u]pon application
by any State, the Administrator may extend for 1 additional year ... the attainment date ... if (i)
the State has complied with all requirements and commitments pertaining to the area in the
applicable implementation plan, and (ii) in accordance with guidance published by the
Administrator, no more than a minimal number of exceedances of the relevant national ambient
air quality standard has occurred in the year preceding the Extension Year." Because these
provisions provide that EPA "may" extend attainment dates where the statutory criteria are met,
EPA retains discretion to deny such requests. The U.S. Court of Appeals for the D.C. Circuit has
affirmed that EPA may consider factors beyond those enumerated under the extension
provisions, but that such exercise of discretion is subject to arbitrary-and-capricious review.27
As an example, in October 2022, EPA denied a request from Texas to extend the
attainment date of the Houston-Galveston-Brazoria Serious nonattainment area for the 2008
ozone NAAQS.28 In support of its denial of the request for the attainment date extension, EPA
stated that the statutory extension provision was appropriately read in light of the CAA's focus
on expeditious attainment of the NAAQS in order to protect public health and the environment.29
EPA therefore considered available information that demonstrated that Houston could not
have attained by an extended attainment date, nor qualified for a second attainment date
extension, as well as information that indicated that the population that would be impacted by the
Agency's decision already bears a disproportionate burden of pollution. First, EPA examined air
quality trends for the Houston area and found that air quality monitoring data indicated that the
Houston area was unlikely to either attain by the extended attainment date or qualify for a second
1-year extension.
Second, EPA considered existing burdens of pollution in the Houston area and explained
in the proposal: "Where the statute has provided the Administrator a discretionary authority in
the attainment date extension provisions, we think it is reasonable to consider the existing
environmental burden in the area in question, and what impact our action may have on that
burden."30
26 CAA § 172(a)(2)(C) (general non-attainment plans); CAA § 181(a)(5) (ozone); CAA § 186(a)(4) (carbon
monoxide); CAA § 188(d) (particulate matter). See also CAA § 188(e) (extensions for serious PM areas); EJ Legal
Tools, supra note 3, at 26-27.
27 Delaware v. EPA, 895 F.3d 90, 100 (D.C. Cir. 2018).
28 Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of
Areas Classified as Serious for the 2008 Ozone National Ambient Air Quality Standards, 87 Fed. Reg. 60,926 (Oct.
7, 2022).
29 Cf. Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and
Reclassification of Areas Classified as Marginal for the 2015 Ozone National Ambient Air Quality Standards, 87
Fed. Reg. 60,897 (Oct. 7, 2022) (finalizing determinations of attainment by the attainment date for the 2015 ozone
NAAQS, including a grant of an attainment date extension for the Uinta Basin area relying on similar
considerations).
30 Determinations of Attainment by the Attainment Date, Extension of the Attainment Date, and Reclassification of
Areas Classified as Serious for the 2008 Ozone National Ambient Air Quality Standards, Proposed Rule, 87 Fed.
Reg. 21,825, 21,832 (Apr. 13, 2022).
7
-------
EPA conducted a screening analysis using data from EJScreen to better understand the
pollution burden on the population that would be affected by extending the ozone attainment
date. EPA analyzed the cumulative pollution burden in certain areas of Houston, including ozone
pollution exposure, particulate matter concentration, traffic proximity and volume, percentage of
pre-1960 housing units (lead paint indicator), proximity to Superfund sites and hazardous waste
facilities, and other factors. Based on this analysis, EPA found that Houston residents in certain
parts of the nonattainment area are exposed to a disproportionately high burden of ozone
pollution, relative to the rest of Houston and the United States, and that near the Houston Ship
Channel, residents may also be exposed to disproportionately high burdens of other pollution,
based on high percentile results of these environmental indicators EPA assessed in EJScreen.
EPA noted in the proposal that the effect of denying the state's request would be to
reclassify the area to "Severe," triggering a more stringent set of implementation requirements
for the Houston area, and that avoiding delay of these requirements was appropriate under the
circumstances in order to facilitate attainment as expeditiously as practicable, and that "applying
a protective approach is particularly warranted where the Agency has identified populations that
may already be overburdened with pollution."31
C. Attainment Date Extensions — Particulate Matter
"Serious" particulate matter areas, which refers to areas classified as serious
nonattainment for particulate matter NAAQS,32 face a different set of criteria under CAA section
188(e) in order to qualify for an attainment date extension. EPA may extend the attainment date
beyond the date specified by the statute if:
• attainment by the attainment date would be "impracticable";
• the state has complied with all requirements and commitments pertaining to that area in
the implementation plan;
• the state demonstrates to the satisfaction of the Administrator that the plan for that area
includes the most stringent measures that are included in the implementation plan of any
state, and can feasibly be implemented in the area; and
• at the time of the state's request, the state submits a revision to the implementation plan
that includes an attainment demonstration by the most expeditious alternative date
practicable.
In determining whether to grant an extension, and the appropriate length of time for any
such extension, the Administrator may consider:
• the nature and extent of nonattainment,
• the types and numbers of sources or other emitting activities in the area (including the
influence of uncontrollable natural sources and transboundary emissions from foreign
countries),
• the population exposed to concentrations in excess of the standard,
31 87 Fed. Reg. at 21,835.
32 CAA § 188(b); see also 40 C.F.R. § 51.1002(b).
8
-------
• the presence and concentration of potentially toxic substances in the mix of particulate
matter emissions in the area, and
• the technological and economic feasibility of various control measures.
These CAA section 188(e) factors may present an opportunity for EPA to evaluate cumulative
impacts of pollution on an affected population when determining whether to grant NAAQS
attainment date extension for "serious" particulate matter areas but, to date, the Agency has not
done so.
D. A mbient A ir Monitoring
EPA has designed its ambient monitoring networks to balance various goals, including
collecting data on multiple pollutants where appropriate. For example, EPA has regulatory
networks such as the National Core Network (NCore) that include measurements of particles
(continuous mass, filter mass and speciation), gases (ozone, carbon monoxide, sulfur dioxide,
nitrogen oxide and total reactive nitrogen), and basic meteorology across a geographically
diverse set of sites. Data from this network are used as inputs to health and atmospheric studies,
NAAQS revisions, and validating air quality models and assessing emission reduction programs
as well as the more routine objectives of comparing to the NAAQS and the Air Quality Index
(AQI). Another example of multipollutant measurement includes the near-road monitoring
network that has sites in larger urban areas collecting nitrogen dioxide, fine particulate matter,
and carbon monoxide data in the near-road environment. EPA also has voluntary monitoring
such as National Air Toxics Trends Station (NATTS) sites, which provide measurements of large
suites of hazardous air pollutant compounds where state, local and tribal monitoring agencies
agree to operate and support a site. These and other ambient air monitoring initiatives and
networks may provide valuable information to be used along with other data to assess cumulative
impacts on environmental justice communities.
III. Air Toxics
A. Hazardous Air Pollutants
CAA section 112 addresses the regulation of hazardous air pollutants (HAPs). While
CAA section 112 does not reference the term "cumulative impacts," section 112(f) requires EPA
to assess risk to public health that remains after implementation of a National Emission Standard
for Hazardous Air Pollutants (i.e., residual risk) and to determine whether additional standards
for a source category or subcategory are necessary to provide ample margin of safety to protect
public health. EPA incorporates some elements of cumulative risk analyses into its risk
assessments under this provision of the CAA. In its residual risk reviews, the Agency (1)
conducts facility-wide assessments, which include source category emission points, as well as
other emission points within facilities; (2) combines exposures from multiple sources in the same
category that could affect the same individuals; and (3) for some persistent and bioaccumulative
pollutants, analyzes the ingestion route of exposure. In addition, EPA's risk assessments under
CAA section 112(f) take into account aggregate cancer risk from all carcinogens and aggregated
9
-------
noncancer hazard quotients33 for all noncarcinogens affecting the same target organ or target
organ systems.
EPA has historically undertaken residual risk reviews for major sources only. Pursuant to
CAA section 112(f)(5), residual risk reviews are not required for area sources where EPA has
established generally available control technologies (GACT) standards. Nevertheless, EPA has
the discretion to conduct a risk review when the Agency conducts the required technology
review. The Agency could use qualitative assessments of cumulative risks, including cumulative
risks to communities with environmental justice concerns, to determine whether to undertake
residual risk assessments for area source categories subject to GACT standards.
B. Solid Waste Combustion
Section 129 of the CAA requires EPA to establish performance standards for new and
existing solid waste incineration units. These standards must incorporate siting requirements for
new units that minimize to the maximum extent practicable potential risks to public health or the
environment. Regulations implementing this provision could be revised to incorporate a
cumulative risk assessment into the siting requirements. The Agency's ability to take cumulative
risk into account under section 129, however, may be limited or constrained by the residual risk
provisions of section 129(h)(3), which limit EPA's consideration and regulation of risk to certain
listed pollutants (particulate matter, opacity (as appropriate), sulfur dioxide, hydrogen chloride,
oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans).
IV. Permitting
A. Prevention of Significant Deterioration (PSD) Permitting Program
A limited form of a cumulative impacts analysis may be conducted under the New Source
Review (NSR) permitting program, as part of the review of an application for a permit to
construct a stationary source of air pollution. In areas where the air quality is meeting the
NAAQS, to obtain a permit under the Prevention of Significant Deterioration (PSD) component
of the NSR program, CAA section 165(a)(3) requires that a source demonstrate that its emissions
will not cause or contribute to a violation of each NAAQS for which the area is in attainment. In
addition, section 165(e)(1) requires "an analysis ... of the ambient air quality at the proposed
site and in areas which may be affected by emissions from such facility." This analysis is used in
PSD permitting to make the demonstration required under section 165(a)(3). If an initial estimate
of the ambient concentration increase resulting from increased emissions from a new or
modifying source indicates that these emissions have the potential to cause or contribute to a
violation of a NAAQS, then a cumulative analysis of concentrations of that air pollutant should
be undertaken, as described in EPA's Guideline on Air Quality Models.^4 This analysis
incorporates background concentrations of the air pollutant that is the subject of the NAAQS,
including the impact of other sources in the area on that pollutant. However, since section
165(a)(3) requires a demonstration for each NAAQS for which the area is in attainment, this
cumulative analysis focuses on the impact of emissions from multiple sources on one NAAQS
33 A hazard quotient is the ratio of the potential HAP exposure concentration to the noncancer dose-response value.
34 40 C.F.R. pt. 51, App. W.
10
-------
pollutant at a time, rather than the combined effects of all air pollutants subject to the PSD
program or certain other stressors.
Since Congress provided in CAA section 112(b)(6) that the PSD provisions do not apply
to hazardous air pollutants (HAPs), the analysis conducted under section 165(e)(1) does not
cover these air pollutants. However, hazardous air pollutant emissions from PSD sources can be
considered in the context of determining emissions limits for the pollutants that are covered in
PSD permits. Under CAA section 165(a)(4), a PSD permit must contain limitations on the
emissions of each PSD pollutant35 that are based on the emissions levels that can be achieved
through application of the Best Available Control Technology (BACT) for such pollutants. EPA
has long recognized that, in establishing BACT for pollutants regulated under PSD, analysis of
control technologies for PSD pollutants could also consider their relative ability to control
emissions of pollutants that are not PSD pollutants.36 In addition, some HAPs are also PSD
pollutants, such as volatile organic compounds. Thus, permitting authorities may be able to
indirectly take into account the effects of such a HAP in PSD, using authority to address PSD
pollutant emissions. Furthermore, states that implement the PSD program on the basis of state
laws reflected in an approved State Implementation Plan may have additional state law authority
to directly consider emissions of HAPs in the context of a permitting decision.37
B. Title V Program
All major stationary sources of air pollution and certain other sources are required to
apply for CAA Title V operating permits that include emission limitations and other conditions
as necessary to assure sources' compliance with all applicable requirements of the CAA.38
Unlike PSD/NSR permitting, the Title V operating permit program does not generally impose
new substantive air quality control requirements (which are referred to as "applicable
requirements"), but does require permits to contain monitoring, recordkeeping, reporting, and
other conditions to assure compliance by sources with applicable requirements.
After a Title V operating permit has been issued by a permitting authority, EPA has
authority under CAA section 505(e) to reopen the permit if the Administrator finds cause exists
to terminate, modify, or revoke and reissue such permit. 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 that they are consistent with the requirements of the CAA. EPA may
exercise this authority on its own initiative if the Agency determines that this is necessary to
35 The "PSD pollutants" discussed here are those covered by the definition of "regulated NSR pollutant" in the PSD
regulations. 40 C.F.R. §§ 51.166(b)(49), 52.21(b)(50). These are pollutants for whichEPA has promulgated a
NAAQS, and also pollutants regulated under other parts of the CAA, such as the New Source Performance
Standards under section 111. Most regulated NSR pollutants are identified in the definition of "significant" in the
PSD regulations. 40 C.F.R. §§ 51.166(b)(23), 52.21(b)(23). BACT limits are required for each regulated NSR
pollutant that is emitted or increased above the thresholds set forth in this definition of "significant." 40 C.F.R.
§§51.1660), 52.21(j).
36 In re North County Resource Recovery Assoc., 2 E.A.D. 229, 230 (EAB 1986).
37 See, e.g., Written Reasons for Judgment at 17-19, Rise St. James v. Louisiana Dep't of Env't Quality, No. C-
694029 (La. 19th Dist. Ct. Parish of E. Baton Rouge Sept. 8, 2022) (finding that state agency's failure to conduct a
cumulative assessment of toxic air pollutant emissions in the context of a construction permitting decision violated
public trust obligations under state constitution) (appeal pending).
38 CAA §§ 502(a); 504(a), (c).
11
-------
assure compliance with the applicable requirements of the CAA. EPA's regulation at 40 C.F.R.
§ 70.7(g) requires that the permitting authority be notified and given an opportunity to propose a
determination of termination, modification, or revocation and reissuance, as appropriate, within a
specified time frame. Should the permitting authority fail to act, or otherwise fail to resolve any
objection EPA has to the permit under this process, the Administrator would terminate, modify,
or revoke and reissue the permit as appropriate.
V. Accident Prevention Authorities
EPA may consider cumulative impacts under its CAA section 112(r) authorities for the
prevention of chemical accidental releases. This section authorizes a regulatory Risk
Management Program that requires facility-specific plans for preventing and responding to
releases of listed toxic and flammable substances.39 Under the Risk Management Program, EPA
can consider past and potential cumulative impacts of accidental releases from the facility and/or
neighboring facilities as well as impacts from natural disasters when requiring facilities to
develop accidental release prevention requirements in facility plans. For example, in fenceline
communities with multiple facilities subject to CAA section 112(r) and associated regulatory
requirements, a facility may have to take additional prevention and mitigation steps to address
the heightened risks to the community caused by the presence of multiple facilities.
VI. Information Collection Authority
CAA section 114 vests EPA with broad authority to collect information in furtherance of
CAA purposes. EPA may use this authority to obtain information necessary to assess cumulative
impacts of any emission source or sources on communities, including communities with
environmental justice concerns, and the environment. EPA may request information from any
person:
• who owns or operates any emission source,
• who manufactures emission control equipment or process equipment,
• who the Agency believes may have information necessary to the purposes articulated in
section 114, or
• who is subject to any requirement of the CAA.
The purposes specified in section 114 include:
• developing or assisting in the development of implementation plans, standards of
performance, emissions standards, or regulation of solid waste combustion;
• determining whether any person is in violation of any such standard or any requirement
of such a plan; or
• carrying out any provision of the CAA, with the exception of certain mobile source
requirements applicable to manufacturers of new motor vehicle and motor vehicle
40
engines.
39 CAA § 112(r)(3)-(5), (7); see also 40 C.F.R. pt. 68.
40 Information gathering activities for such mobile sources are governed by CAA § 208. This authority is
comparable to CAA § 114 and thus could also provide a means to gather information about cumulative impacts.
12
-------
EPA may require any person subject to section 114 to:
• establish and maintain records;
• make reports;
• install, use, and maintain monitoring equipment, and use audit procedures or methods;
• sample emissions;
• keep records on control equipment parameters, production values or other indirect data
when it is impracticable to directly monitor emissions;
• submit compliance certifications; and
• provide additional information that EPA may reasonably need to carry out the CAA.
EPA may require such information on a one-time, periodic, or continuous basis. Note that EPA's
exercise of authority is also subject to Paperwork Reduction Act considerations.
VII. Imminent and Substantial Endangerment (ISE) Authority
CAA section 303 provides EPA and United States district courts with broad authority to
address imminent and substantial endangerment (ISE) to public health, welfare, or the
environment in communities with environmental justice concerns where the cumulative impacts
of air pollution from a source or multiple sources are presenting ISE, regardless of whether those
sources are in compliance with the applicable CAA requirements. Specifically, section 303
provides that:
Notwithstanding any other [CAA provision], the Administrator, upon receipt of evidence
that a pollution source or combination of sources (including moving sources) is presenting
an imminent and substantial endangerment to public health or welfare, or the environment,
may bring suit on behalf of the United States in the appropriate United States district court
to immediately restrain any person causing or contributing to the alleged pollution to stop
the emission of air pollutants causing or contributing to such pollution or to take such other
action as may be necessary. If it is not practicable to assure prompt protection of public
health or welfare or the environment by commencement of such a civil action, the
Administrator may issue such orders as may be necessary to protect public health or
welfare or the environment.
Courts interpreting other statutes providing similar authority have found that an
endangerment may be "imminent" where present conditions indicate a threat of harm to public
health, welfare, or the environment even though the harm may not be immediately realized,41
and "substantial" where there is a reasonable cause for concern that public health, welfare, or the
environment is at risk.42 Thus, to the extent the evidence in a specific case demonstrates that
multiple air pollution sources caused or contributed to cumulative impacts such that they present
ISE to the health, welfare, or environment of people in a community with environmental justice
concerns, EPA could seek a court order to restrain any person causing or contributing to the
alleged pollution to stop emitting air pollutants causing or contributing to such pollution or to
take such other action as may be necessary.43 In addition, where EPA determines that
41 See, e.g., Liebhart v. SPX Corp., 917 F.3d 952, 961 (7th Cir. 2019).
42 See, e.g., Interfaith Community Organization v. Honeywell, Inc., 399 F.3d 248, 259 (3rd Cir. 2005).
43 CAA § 303.
13
-------
commencing a civil suit is not practicable to assure prompt protection, EPA "may issue such
orders as may be necessary to protect public health or welfare or the environment."44 Such an
order may remain in effect for up to 60 days, and may be extended by the court if EPA brings a
civil action within the 60-day period. Finally, as part of their state implementation plans (SIPs)
implementing NAAQS, all states are required to have "authority comparable to that in" CAA
section 303.45
EPA's 1999 "Guidance on Section 303 of the Clean Air Act" contemplates consideration
of cumulative impacts under section 303.46 The Guidance notes that EPA interprets the phrase
"contributing to" under section 303 to mean, "to have a share in any act or effect."47 It is not
necessary for the person to be directly controlling the activities that are creating an imminent and
substantial endangerment for EPA to issue an order or take other action under section 303. Nor is
it necessary that a person be responsible for a specific share of the effect. A combination of air
pollution sources may present ISE even though the emissions from a single source, if considered
alone, may be of lesser concern. In some cases, it may be warranted to address an individual
source under section 303 even though the action would not completely eliminate the pollutant(s)
of concern.
44 Id.
45 CAA § 110(a)(2)(G).
46 Memorandum from Eric V. Schaeffer, Director, Office of Regulatory Enforcement, Office of Enforcement and
Compliance Assurance, EPA, to Addresses, on Transmittal of "Guidance on Section 303 of the Clean Air Act," at
10-11 (Apr. 1, 1999),
05/documents/t ransmittalofguidanceonsection303ofcaa040199.pdf.
41 Id. at 11 (citing United States v. Aceto Agricultural Chem. Corp., 872 F.2d 1373, 1384 (8th Cir. 1989)).
14
-------
CHAPTER TWO: WATER PROGRAMS
The Clean Water Act (CWA) and Safe Drinking Water Act (SDWA) provide EPA with
various legal authorities to address, where appropriate, cumulative impacts in communities with
environmental justice concerns. Pursuant to these authorities, EPA already addresses or could
consider addressing cumulative impacts, based on an adequate record, thus expanding or
deepening opportunities to advance environmental justice.
This chapter discusses six of the authorities discussed in EJLegal Tools48 where EPA has
considered or could consider cumulative impacts on affected communities, including
communities with environmental justice concerns, in carrying out its functions under the CWA
and SDWA. These illustrative examples address the following: (1) relative source contribution in
developing human health water quality criteria, Maximum Contaminant Level Goals, and Health
Advisories; (2) identifying impaired waters and developing Total Maximum Daily Loads
(TMDLs) for impaired waters; (3) guidelines related to dredge or fill permits issued by the U.S.
Army Corps of Engineers; (4) underground injection control area permits; (5) National Pollutant
Discharge Elimination System (NPDES) permits related to municipal stormwater and pesticide
applications; and (6) exercise of imminent and substantial endangerment authorities.
The authorities identified herein are not intended to be exhaustive but rather are
illustrative of certain ways in which cumulative impacts are or could be relevant in decision-
making under the CWA and SDWA. The highlighted examples are intended to spur further
thinking about opportunities to take cumulative impacts into account in Agency decision-
making. While the provisions identified in this section may provide authority for EPA to address
cumulative impacts under the CWA and SDWA, discussion of such examples does not obligate
EPA to take cumulative impacts into account in any particular action.
Whether and how EPA utilizes these and other authorities to address cumulative impacts
will depend on the specific statutory, regulatory, policy, scientific, and factual contexts at issue,
as well as the resources available to the Agency. In certain contexts, terms such as "cumulative
impacts," "aggregate exposure," and "cumulative effects" may not encompass the combined
exposures to stressors but may refer instead to the cumulative, or aggregate, impacts of only a
specific set of pollutants or in specific media exposure pathways as defined by the statute or
regulation.49 EPA program and regional offices should consult with the relevant Office of
General Counsel and Office of Regional Counsel attorneys regarding potential legal issues
associated with whether and/or how to consider cumulative impacts to advance environmental
justice through the water programs.
I. Human Health Water Quality Criteria, Maximum Contaminant Level Goals, and
Health Advisories
One example of EPA's consideration of cumulative impacts in its water programs is the
Agency's derivation and consideration of "Relative Source Contribution" or "RSC" in its
decision-making. The RSC approach allows EPA to consider multiple sources of exposure to an
48 EJ Legal Tools, supra note 3, at 59-87 (CWA); 87-97 (SDWA).
49 See supra INTRODUCTION.
15
-------
individual chemical, or aggregate exposure, and the Agency uses this approach in, among other
circumstances, developing recommended ambient water quality criteria to protect human
health,50 drinking water Maximum Contaminant Level Goals (MCLGs), and drinking water
Health Advisories (HAs). EPA generally limits this approach to chemicals with dose-response
relationships that are thought to be either nonlinear or consistent with a threshold (i.e., those
chemicals for which there is a point below which adverse effects are not expected to occur, such
as noncarcinogens and nonlinear carcinogens).51 Under all three authorities, EPA's goal is,
among other things, to regulate or advise to protect human health. EPA considers cumulative or
aggregate exposure in appropriate circumstances to ensure that it is accurately representing the
effect of additional exposure to the target pollutant on human health; considering additional
loads in isolation, in these cases, would not reflect the real-world effects of the pollutants at
issue.
The purpose of the RSC is to ensure that the level of the chemical at issue, when
combined with other identified sources of exposure for the target population, will not result in
exposures that exceed a level below which it is not likely to cause adverse health effects over a
lifetime, i.e., the threshold effect level (Reference Dose, or RfD). Calculation of the RSC factors
in dermal and inhalation exposure as well as exposure from other non-water sources (e.g.,
consumption of foods, dust, medications, consumer products, etc.). EPA published guidance in
2000 describing its approach for determining the RSC for chemicals with threshold effects.52
Because the RSC accounts for other potential exposure sources, the incorporation of the RSC in
equations to derive human health ambient water quality criteria, an MCLG or an HA often leads
to a more health protective approach.
EPA develops national recommended water quality criteria for waters of the United
States and MCLGs and HAs for drinking water nationwide. The Agency takes sensitive
subpopulations into account (such as children and pregnant women) when deriving such values,
further factoring in environmental burden. While MCLGs, drinking water HAs, and national
recommended human health criteria are not regulatory in nature, they represent the best available
science and may be used by state environmental and public health agencies and/or public
drinking water systems as appropriate in various actions, such as deriving permit limits for
discharges from wastewater treatment facilities, to manage risks to people, including more
vulnerable populations where appropriate, associated with a contaminant in drinking water or in
rivers, streams, lakes, estuaries, and near-coastal waters.
II. Identifying Impaired Waters and Developing TMDLs
The CWA section 303(d) program presents several opportunities for states, territories,
authorized tribes, and, where appropriate, EPA to consider cumulative impacts. For example, in
developing TMDLs for impaired waters, regulators could exercise their discretion when setting
waste load allocations (for point sources) and load allocations (for nonpoint sources) to allocate a
50 33 U.S.C. § 1314(a).
51 EPA, Methodology for Deriving Ambient Water Quality Criteria for Human Health (2000),
https://www.epa.gov/sites/default/files/2018-10/documents/methodologv-wac-protection-hh-2000.pdf: see also 42
U.S.C. § 300g-l(a).
52 EPA, Methodology for Deriving Ambient Water Quality Criteria for Human Health (2000),
https://www.epa.gov/sites/defanit/files/2018-10/documents/methodologv-wac-protection-Mi-2000.pdf.
16
-------
lesser share of pollutant loads to discharges in communities experiencing greater cumulative
impacts.53 Regulators could also consider cumulative impacts when deciding the order in which
TMDLs are developed. The CWA and EPA regulations provide that each "State shall establish a
priority ranking for such waters, taking into account the severity of the pollution and the uses to
be made of such waters."54 Provided that states and authorized tribes satisfy their statutory
obligation of "taking into account" those statutory factors, they could exercise their discretion to
prioritize developing TMDLs to address human health impairments in and around communities
where cumulative impacts are a concern. States and authorized tribes could also consider
revising existing TMDLs for waters in communities that continue to experience the
disproportionate burdens associated with cumulative impacts, and EPA could provide technical
support to states and authorized tribes to assist such efforts. All these actions could promote
improved water quality and human health in and around such communities.
III. EPA Review of CWA Section 404 Permits
While the U.S. Army Corps of Engineers (the Corps) has the lead role in the CWA
section 404-authorization process in most states, EPA's authority to review proposed projects
may, in certain circumstances, provide an opportunity to consider cumulative impacts on affected
communities.
Before the Corps can authorize a discharge of dredged or fill material into federally
regulated waters under CWA section 404, they must determine that the discharge complies with
the CWA section 404(b)(1) Guidelines. EPA developed these Guidelines in conjunction with the
Corps, and EPA's review of the Corps' public notices typically centers on compliance with the
Guidelines. The Guidelines' discussion of cumulative impacts is focused on "the changes in an
aquatic ecosystem that are attributable to the collective effect of a number of individual
discharges of dredged or fill material."55 As part of its reviews, EPA could heighten its focus on
ensuring that the issuing authority is aware of and adequately considers the cumulative impacts
on disadvantaged communities from the authorization of discharges of dredged or fill materials.
EPA could also consider the extent to which other considerations in the Guidelines may be
particularly relevant to cumulative impacts on affected communities (e.g., factual determinations
regarding human use characteristics, particularly as related to potential effects on municipal and
private water supplies, recreational and commercial fisheries, and water-related recreation).56
When the Corps issues CWA permits for discharges of dredged or fill material into
waters of the United States, including certain wetlands, it is also required, pursuant to Corps
regulations, to conduct a public interest review.57 The Corps' public interest review involves an
analysis of the foreseeable impacts the proposed work would have on public interest factors,
such as navigation, general environmental concerns, wetlands, economics, fish and wildlife
values, land use, floodplain values, and the needs and welfare of the people. Where there is
available information, EPA could provide comments, when appropriate, that identify
53 33 U.S.C. § 1313(d); 40 C.F.R. § 130.7.
54 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b)(4).
55 40 C.F.R. § 230.11(g).
56 40 C.F.R. § 230.50-54.
57 3 3 C.F.R. pt. 320, General Regulatory Policies.
17
-------
environmental justice concerns, which could include cumulative impacts, that the Corps should
consider in the context of its public interest review.
In addition, in reviewing applications from states or tribes to assume the section 404
programs (in which they must issue permits consistent with the section 404(b)(1) Guidelines),
EPA can encourage the state or tribal authority that implements the Guidelines to consider
communities with environmental justice concerns as part of its required consideration of impacts
on human uses of resources.58
IV. Underground Injection Control (UIC) Area Permits
In the Underground Injection Control (UIC) program under the SDWA, EPA (or
potentially a state or tribe with UIC primary implementation and enforcement authority)
considers "the cumulative effects of drilling and operation of additional injection wells . . . during
evaluation of the area permit application."59 EPA (or a state or tribal authority) may issue a
permit on an "area basis" covering multiple wells, rather than for each well individually, if an
application can meet the regulatory requirements.60 EPA can deny an application for an area
permit or condition the permit based on cumulative effects.61 Also, if EPA (or a state or tribal
authority) receives information indicating that the "cumulative effects on the environment are
unacceptable," it may modify the permit.62
EPA has relied on these authorities to consider cumulative effects in its evaluation of area
permit applications. For instance, in November 2020, EPA issued UIC area permits regulating
uranium In-Situ Recovery (ISR)63 to ensure that underground sources of drinking water will be
protected from impacts associated with mining activities and deep disposal of ISR-related waste
fluids on site. EPA considered various factors in its Cumulative Effects Analysis (CEA) and
environmental justice analysis, including groundwater quality/availability, surface
water/wetlands, surface spills/leaks, land use, soils, geology, radiological, air quality, climate
change, transportation, potential accidents, ecological resources, waste management, historic
mining, and spiritual and cultural resources. EPA then included several protective requirements
in the final permits informed by its CEA and environmental justice analyses plus stakeholder
comments.
As part of this permitting process, EPA took various actions to engage with tribal
governments, affected communities, and other stakeholders. Given the significant tribal interest
in EPA's action, EPA invited 38 Indian tribes to participate in tribal consultation discussions,
engaged in numerous consultation meetings, held three informational webinars specifically for
58 See 33 U.S.C. § 1344(h)(l)(A)(i); 40 C.F.R. § 230.50-54.
59 40 C.F.R. § 144.33(c)(3) (emphasis added). Area permits may not be issued for Class VI wells. Id. § 144.33(a)(5).
60 See 40 C.F.R. § 144.33 (application requirements).
61 40 C.F.R. § 144.33(c)(3) allows the Director to issue area permits only if the cumulative effects of drilling and
operation of additional injection wells are "acceptable" to the Director. If the Director issues the area permit, the
Director has plenary authority to condition the permit to prevent migration of fluids into underground sources of
drinking water and to otherwise assure compliance with all applicable requirements of the SDWA and EPA's
implementing regulations. 40 C.F.R. § 144.52(a)(9), (b).
62 40 C.F.R. § 144.39(a)(2).
63 EPA Dewey-Burdock Class III and Class VInjection Well Final Area Permits, EPA,
https://www.epa.gov/iiic/epa-dewey-biirdock-class-iii-and-class-v-iniection-well-final-area-permits.
18
-------
tribal governments, and once the decision was finalized, responded to each tribe that raised
concerns or submitted comments and explained how the Region addressed their input. In
addition, to enhance public engagement, Region 8 exercised its discretion to hold public hearings
in four locations and at times selected to accommodate communities with environmental justice
concerns. Prior to each public hearing, the program offered informational meetings on site to
provide the local communities with opportunities to receive additional information and ask
questions to facilitate informed and effective participation during the hearings. The Region also
included drafts of its CEA and environmental justice analysis for review during the public
comment periods and provided substantial comment period extensions.64
V. NPDES Permits for Stormwater and Pesticide Application
EPA and states may consider cumulative impacts when developing certain CWA NPDES
permits, such as those for small Municipal Separate Storm Sewer Systems (MS4s) and the
Pesticide General Permit (PGP) and state equivalents. As mentioned in EJLegal Tools, permit
writers may establish more specific requirements tailored to the needs of communities with
environmental justice concerns, including cumulative impacts, in developing permit conditions
for small MS4s.65 For instance, based upon a cumulative impact analysis of disproportionate
local environmental burdens, MS4 permits could include tailored requirements related to illicit
discharge detection and elimination and post-construction stormwater conditions for
redevelopment and new development.66 The permits could encourage urban communities with
environmental justice concerns to prioritize and focus their own work to detect and "effectively
eliminate" illicit discharges and incentivize contractors to use certain types of green
infrastructure under the CWA section 402(p)(3)(B)(3) "maximum extent practicable" standard
that applies to MS4 permits, including practices that incorporate vegetation, which would benefit
water quality but could also have secondary benefits such as addressing illicit discharges, air and
noise pollution, heat extremes, and people's mental and physical wellbeing.
Regarding the PGP, EPA could explore requiring, or at least encouraging, operators to
consider cumulative impacts, especially cumulative impacts to communities with environmental
justice concerns, when selecting pest management measures that minimize pesticide discharges.
EPA and states issue PGPs under the NPDES program to regulate discharges from pesticide
applications.67 The current EPA PGP requires operators to submit a notice of intent (NOI) before
the first pesticide application covered under the PGP (and at least once each calendar year
thereafter) that evaluates a broad range of pest management options—beyond pesticide
application—to control target pests.68 When evaluating options, operators must consider impacts
64 A number of the actions identified in this example go beyond the area permit cumulative effects consideration
required by 40 C.F.R. § 144.33 (e.g., the separate environmental justice analysis, the enhanced public participation
and consultation, and the additional permit conditions informed in part by the environmental justice analysis and
stakeholder comments).
65 EJ Legal Tools, supra note 3, at 80-82.
66 See 33 U.S.C. § 402(p)(3)(B)(ii)-(iii); 40 C.F.R. § 122.34(b)(3), (5).
67 Pesticide Permitting, EPA, https://www.epa.gov/npdes/pesticide-permitting.
68 This requirement is part of the permit's technology-based effluent limitations (TBELs). 33 U.S.C. § 1311(b)(1)(A)
(BPT), (b)(2)(A) (BAT), (b)(2)(E) (BCT); 40 C.F.R. §§ 122.44(a)(1), 125.3. The TBELs contained in the PGP are
non-numeric and constitute the levels of control that reduce the area and duration of the discharge of pollutants to
waters of the United States. They are based on EPA's "best professional judgement" decision-making because no
effluent limitation guideline or "ELG" applies.
19
-------
to water quality and to non-target organisms (as well as feasibility and cost-effectiveness). For
example, when evaluating pest management options for mosquito control, the operator could
consider habitat modification to eliminate mosquito breeding sites, such as elimination of
artificial ponds or maintenance of steep banks in natural waterbodies, proper disposal of
containers used by mosquitos as breeding grounds, or even using mosquitofish that feed on
mosquito larvae as a "biocontrol agent." Some of these options beyond pesticide application can
result in improvements to public health and the environment beyond water quality
improvements. For instance, minimizing unnecessary pesticide applications can help reduce
exposures to applicators, who may be part of a community with environmental justice concerns,
as well as others. The current EPA PGP requires this evaluation of options only for operators
required to submit an NOI; in the next PGP, EPA could explore requiring other operators to
engage in this type of options evaluation (or require additional operators to submit an NOI).
VI. Imminent and Substantial Endangerment
Both the Safe Drinking Water Act (SDWA) and the CWA address imminent and
substantial endangerment. SDWA section 1431 provides EPA with broad authority to address
risks to public health, including those involving cumulative impacts to drinking water sources.
Specifically, SDWA section 1431 authorizes EPA to take action where "a contaminant... is
present in or is likely to enter a public water system or underground source of drinking water"
which "may present an imminent and substantial endangerment to the health of persons," and
"State and local authorities have not acted ..." Accordingly, where there is information
showing that multiple sources are cumulatively impacting the drinking water and may present an
"imminent and substantial endangerment" to public health in a community with environmental
justice concerns, EPA could use this broad authority to take action "necessary to protect the
health of persons." Such action may include, but is not limited to, orders requiring the provision
of alternative water by persons causing or contributing to the endangerment. "Imminent and
substantial endangerment" has been broadly construed to include not only actual harm, but also
the risk of harm.69 Therefore, not only acute contaminants but also those that lead to chronic
health effects in environmental justice communities, such as carcinogens, may be considered to
cause "imminent endangerment" even though there is a period of latency before those
contaminants, if introduced into a drinking water supply, might cause adverse health effects.70
SDWA section 1431 can be used to prevent a dangerous situation from materializing or address a
dangerous situation once discovered.71 Furthermore, it can be used to address cumulative threats
to drinking water even from contaminants that are not regulated under the SDWA72 or where
69 See Trinity American Corp. v. EPA, 150 F.3d 389, 397-98 (4th Cir. 1998) ("Because only the 'risk of harm' must
be 'imminent,' EPA need not demonstrate that individuals are drinking contaminated water to justify issuing an
emergency order").
70 See id. ("EPA . . . may invoke its powers under section 1431 even if there is only an 'imminent likelihood of the
introduction into drinking water of contaminants that may cause health damage after a period of latency'"), citing
H.R. 93-1185, at 36 (stating that an imminent endangerment may result from exposure to a carcinogenic agent).
71 H.R. Rep. No. 93-1185, 93rd Cong., 2d Sess. 35-36, reprinted in, 1974 U.S. Code Cong. & Ad. News 6454, 6488
("the Committee intends that this language be construed by the courts and the Administrator so as to give paramount
importance to the objective of protection of the public health. Administrative and judicial implementation of this
authority must occur early enough to prevent the potential hazard from materializing.")
72 SDWA section 1401(6) defines contaminant very broadly to include any physical, chemical, biological or
radiological substance or matter in water. Under this broad definition, EPA may act under SDWA 1431 even when
the contaminant in question is not subject to a national drinking water regulation under SDWA.
20
-------
there is no violation of regulatory requirements. While CWA section 504 (discussed below) is
only available judicially, SDWA section 1431 provides for administrative and judicial
enforcement and is used more frequently. In 2018, EPA updated its SDWA section 1431
guidance.73
Similarly, CWA section 504, entitled "Emergency Powers," provides EPA and United
States district courts with broad authority—though rarely used—to address risks to public health
and welfare, including in communities with environmental justice concerns, resulting from the
cumulative impacts of water pollution from multiple sources, regardless of whether those sources
comply with the requirements of the CWA. Specifically, CWA section 504 states that:
[notwithstanding any other provision of this chapter, the Administrator upon receipt of
evidence that a pollution source or combination of sources is presenting an imminent and
substantial endangerment to the health of persons or to the welfare of persons where such
endangerment is to the livelihood of such persons, such as inability to market shellfish,
may bring suit on behalf of the United States in the appropriate district court to immediately
restrain any person causing or contributing to the alleged pollution to stop the discharge of
pollutants causing or contributing to such pollution or to take such other action as may be
necessary.74
Courts interpreting other statutes providing similar authority have found that an
endangerment may be "imminent" when the present conditions indicate a threat of harm to
public health or welfare, even though the harm may not be immediately realized;75 and
"substantial" where there is a reasonable cause for concern that public health or welfare is at
risk.7677 Thus, to the extent that there is evidence that, cumulatively, multiple water pollution
sources are causing or contributing to conditions that present immediate or long-term risks to the
health or welfare of people in a disproportionately impacted community, EPA could seek a
federal court order to "immediately restrain any person causing or contributing to the alleged
pollution to stop the discharge of pollutants causing or contributing to such pollution or to take
such other action as may be necessary."78 EPA has issued guidance regarding CWA section
504.79
73 EPA, Updated Guidance on Emergency Authority under Section 1431 of the Safe Drinking Water
Act (2018), https://www.epa.gov/enforcement/updated-guida nce-emergencv-authoritv-under-sdwa-sectit
74 33 U.S.C. § 1364.
75 See, e.g., Liebhart v. SPX Corp., 917 F.3d 952, 961 (7th Cir. 2019).
76 See, e.g., Interfaith Community Org. v. Honeywell, Inc., 399 F.3d 248, 259 (3d Cir. 2005).
77 Interpretations of language in the emergency power provision of one environmental statute may be used to
interpret comparable language in another environmental statute. See, e.g., United States v. Reilly Tar & Chemical
Corp, 546 F. Supp. 1100, 1109-10 (D. Minn. 1982); Ethyl Corp v. EPA, 541 F.2d 1, 17 (D.C. Cir. 1976) (en banc),
cert, denied, 426 U.S. 941 (1976).
78 33 U.S.C. § 1364.
79 See EPA, Guidance on Use of Section 504, the Emergency Powers Provision of the Clean Water Act at
72-103 (1993), https://nepis.epa.gOv/Exe/ZvPDF.cgi/9.1.0.1.5HE9.PDF?Dockev=9.1.0.1.5HE9.PDF.
21
-------
CHAPTER THREE: WASTE MANAGEMENT AND
EMERGENCY RESPONSE PROGRAMS
This chapter discusses the Resource Conservation and Recovery Act, the Oil Pollution
Act, the Emergency Planning and Community Right-to-Know Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act. As explained below, these statutes
provide EPA various legal authorities to, where appropriate, address cumulative impacts in
communities with environmental justice concerns. The authorities and examples provided in this
chapter are not a comprehensive accounting of all of EPA's waste management and emergency
response authorities related to cumulative impacts. Whether and how EPA utilizes these and
other authorities will depend on the specific statutory, regulatory, policy, scientific, and factual
contexts at issue, as well as the resources available to the Agency.
In certain contexts, the terms "cumulative impacts" or "cumulative risk" may not
encompass the combined exposures to stressors but may refer instead to the cumulative, or
aggregate, impacts of only a specific set of pollutants or in specific media exposure pathways.80
EPA program and regional offices should consult with the relevant Office of General Counsel
and Office of Regional Counsel attorneys regarding potential legal issues associated with
whether and how to consider cumulative impacts to advance environmental justice through the
Agency's waste management and emergency response programs.
I. Resource Conservation and Recovery Act
EPA may use certain authorities under the Resource Conservation and Recovery Act
(RCRA) to advance the fair treatment and meaningful participation of communities with
environmental justice concerns in developing regulations, standards, and guidelines for
hazardous waste management. RCRA requires 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."81 RCRA section 7004(b) requires EPA to provide for "public participation in the
development, revision, implementation, and enforcement of any regulation, guideline,
information, or program." EPA may consider factors such as "cumulative risk," unique exposure
pathways, or sensitive populations in establishing RCRA permitting or clean-up priorities, as
described below and discussed in EJLegal Tools at Chapter 3, Section II.82
A. RCRA Section 3004(a) — Contingency Plans
EPA is obligated to promulgate, and has promulgated, regulations requiring facilities that
treat, store, or dispose of hazardous waste to maintain "contingency plans for effective action to
minimize unanticipated damage from any treatment, storage, or disposal of. . . hazardous
waste." Under the implementing regulations for permitted facilities, 40 C.F.R. Part 264 Subpart
D, where EPA is the permitting authority, it could require facilities to prepare and/or modify
80 See supra INTRODUCTION.
81 See RCRA §§ 3002(a) (standards applicable to generators), 3003(a) (standards applicable to transporters), and
3004(a) (standards applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities).
82 EJ Legal Tools, supra note 3, at 100-103.
22
-------
their contingency plans to reflect the needs of proximate communities with environmental justice
concerns that have limited resources to prepare for or respond to emergency situations. EPA may
consider whether contingency plans could account for cumulative impacts of multiple facilities
on local communities, pre-existing community vulnerabilities, and hazards created or
exacerbated by climate change such as flooding, heat island effect, and wildfires.
B. RCRA Sections 3004(u), 3004(v), and 3008(h) — Corrective Action for
Continuing Releases
RCRA Subtitle C provides EPA or an authorized state the authority to address facility-
wide corrective action at RCRA hazardous waste treatment, storage, and disposal facilities.
Section 3004(u) requires corrective action for releases of hazardous waste or hazardous
constituents from Solid Waste Management Units (SWMUs) at permitted facilities. RCRA
section 3004(v) requires such corrective action beyond the facility boundary where necessary to
protect health and the environment. Under these authorities, facilities must investigate and clean
up contaminated soils, groundwater, and surface water as necessary to protect human health and
the environment. Section 3008(h) allows EPA to take enforcement action to require corrective
action at interim status hazardous waste treatment, storage, or disposal facilities. EPA's
corrective action guidance provides for assessment of cumulative impacts from multiple
contaminants in media, contaminants in more than one medium, and contaminants from sources
other than the permitted facility.83 In implementing these authorities, EPA may consider factors
relevant to cumulative impacts, such as cumulative risk, unique exposure pathways (e.g.,
subsistence fishers, farming communities), or sensitive populations (e.g., children, pregnant
women, fetuses, the elderly).84
C. RCRA Section 3013 Monitoring, Analysis and Testing
If 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.85 Under certain
circumstances and in accordance with Agency guidance, EPA can use RCRA section 3013
authority to gather information necessary to assess cumulative impacts.86 For example, where the
presence or release of hazardous wastes at several facilities or sites may present a substantial
hazard to a specific geographic area, the Agency could consider issuing RCRA section 3013
orders to each owner or operator of such facilities or sites, in order to assess the cumulative
impact of those activities and follow up with site-specific actions. EPA guidance also provides
83 See Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste Management Facilities,
55 Fed. Reg. 30,798 (July 27, 1990), https://www.epa.gov/sites/defanit/files/2013-10/docnments/rcracactionpln-
rpt.pdf.
84 See Memorandum from Gary S. Guzy, Gen'l Counsel, Off. of Gen'l Counsel, EPA, to Steven A. Herman, Asst.
Admin., Off. of Enforcement & Compliance Assurance, EPA (Dec. 1, 2000),
https://www.epa.gOv/sites/de:fanlt/files/201502/docnments/ei permitting authorities memo 120100.pdf.
85 See EPA, Issuance of Administrative Orders Under Section 3013 of Resource Conversation and
Recovery Act (1984), https://www.epa.gov/enforcement/gnidance-issning-rcra-section-3013-adniinistrative-
orders.
86 See id.
23
-------
that when issuing a RCRA section 3013 Order EPA can take into consideration citizen
complaints corroborated by supporting information, information obtained through site-specific
requests under CERCLA section 104, and information on "the potential for exposure to
humans . . . and other related factors."87 This guidance also provides that EPA can consider some
of the same factors as those used for RCRA section 7003 orders and encourages EPA to use any
existing CERCLA section 105 investigations related to the facility for assessment of potential
risks. See below the RCRA section 7003 and CERCLA section 105 discussions in this
Addendum for more information on how those authorities allow for consideration of cumulative
impacts.
D. RCRA Section 3019 — Exposure Information and Health Assessments
EPA has authority to increase the requirements of applicants for certain permits to
provide exposure information and to request that the Agency for Toxic Substances and Disease
Registry (ATSDR) conduct a Health Assessment.88 ATSDR's Health Assessment guidance
requires analysis of cumulative impacts.89 See additional discussion of ATSDR health
assessments below under CERCLA.
E. RCRA Section 7003 — Imminent and Substantial Endangerment
EPA and the United States district courts have authority to address risks to public health
and the environment in communities with environmental justice concerns resulting from the
cumulative impacts of pollution from solid and hazardous waste. Specifically, RCRA section
7003 provides that:
[notwithstanding any other provision of this chapter, upon receipt of evidence that the past
or present handling, storage, treatment, transportation or disposal of any solid waste or
hazardous waste may present an imminent and substantial endangerment to health or the
environment, the Administrator may bring suit on behalf of the United States in the
appropriate district court against any person (including any past or present generator, past
or present transporter, or past or present owner or operator of a treatment, storage, or
disposal facility) who has contributed or who is contributing to such handling, storage,
treatment, transportation or disposal to restrain such person from such handling, storage,
treatment, transportation, or disposal, to order such person to take such other action as may
be necessary, or both.
An endangerment is "imminent" where present conditions indicate that there may be a
threat of harm to public health or the environment, even though the harm may not be realized for
years; and is "substantial" where there is a reasonable cause for concern that public health or
welfare is at risk. Thus, to the extent that there is evidence that persons who may be causing or
contributing to conditions that cumulatively present immediate or long term risks to the health of
people or the environment in a community with environmental justice concerns, EPA could seek
a federal court order to "restrain such person[s] from such handling, storage, treatment,
87 See id.
88 See Memorandum from Gary S. Guzy, Gen'l Counsel, Off. of Gen'l Counsel, EPA, to Steven A. Herman, Asst.
Admin., Off. of Enforcement & Compliance Assurance, EPA (Dec. 1, 2000),
https://www.epa.gov/sites/defanlt/files/201502/docnments/ei permitting authorities memo 120100.pdf.
89 See Public Health Assessment Guidance Manual (PHAGM), ATSDR, https://www.atsdr.cdc.gov/pha-
guidance/i ndex.html.
24
-------
transportation, or disposal, to order such person[s] to take such other action as may be necessary,
or both." Section 7003 also allows EPA to issue administrative orders to private defendants or at
a federal facility "as may be necessary to protect public health and the environment."90
F. RCRA Section 9003 — Underground Storage Tanks
EPA has authority to regulate underground storage tanks (USTs) containing regulated
substances, as defined in RCRA section 9001(2). RCRA section 9003 authorizes UST
regulations "necessary to protect human health and the environment." It also allows the use of
the Leaking Underground Storage Tank Trust Fund (the LUST Trust Fund) to undertake certain
corrective actions with respect to releases of petroleum from USTs. There are three corrective
action programs in this area. First, EPA has a regulatory program (including corrective action)
that applies to both petroleum and hazardous substance USTs.91 EPA has approved most states to
operate their own programs in lieu of the federal requirements, provided they are no less stringent
than the federal program. Second, the LUST Trust Fund can be used for some cleanups for
releases from petroleum USTs.92 Third, corrective action orders can be issued pursuant to RCRA
section 9003(h)(4) covering USTs containing regulated substances. States operating pursuant to a
cooperative agreement can utilize the federal authorities for the latter two categories.93
In evaluating releases from USTs in communities with environmental justice concerns,
EPA or the state can take into account factors relevant to cumulative impacts, such as cumulative
risks, unique exposure pathways and scenarios, and sensitive communities. For example, when
evaluating whether to implement a response action, the regulations provide that EPA, and states
operating pursuant to cooperative agreements, "shall give priority in undertaking corrective
actions . . . and in issuing orders requiring owners or operators to undertake such actions, to
releases of petroleum from underground storage tanks which pose the greatest threat to human
health and the environment."94
Additionally in the context of a petroleum response action, EPA or the state can require
an owner or operator to implement an "exposure assessment" that takes into consideration:
the extent of exposure of, or potential for exposure of, individuals to petroleum from
a release from an underground storage tank based on such factors as the nature and extent
of contamination and the existence of or potential for pathways of human exposure
(including ground or surface water contamination, air emissions, and food chain
contamination), the size of the community within the likely pathways of exposure, and the
comparison of expected human exposure levels to the short-term and long-term health
effects associated with identified contaminants and any available recommended exposure
or tolerance limits for such contaminants.95
In emergency response situations where statutory exposure assessments are not
practicable because of potential delay in abating the immediate hazards, EPA and the state can
90 See EPA, Guidance on the Use of Section 7003 of RCRA (1997),
https://www.epa.gov/sites/default/files/2013-10/documents/use-sec7003-mem.pdf.
91 40 C.F.R. pt. 280.
92 RCRA § 9003(h)(2).
93 RCRA § 9003(h)(7).
94 RCRA §§4001-4010.
95 RCRA § 9003(h)(10), 42 U.S.C. § 9661(h)(10).
25
-------
nonetheless consider cumulative impacts in assessing the need for temporary or permanent
relocation of residents and alternative household water supplies in order to protect human
health.96 In disproportionately impacted communities with environmental justice concerns, EPA
can engage the concerned communities to help ensure that the corrective action is protective of
human health when a full exposure assessment is not practicable.
(7. State Solid Waste Management Criteria
Under RCRA Subtitle D,97 states are the primary implementing authority for managing
nonhazardous solid waste. The federal role is to establish the overall regulatory direction, by
providing minimum nationwide standards for protecting human health and the environment and
providing technical assistance to states for planning and developing their own environmentally
sound waste management practices. Under the authority of RCRA sections 1008(a)(3) and
4004(a), EPA promulgates minimum national performance standards necessary to ensure that
"no reasonable probability of adverse effects on health or the environment" will result from solid
waste disposal facilities or practices. Practices not complying with the criteria constitute "open
dumping" for purposes of the prohibition on open dumping in RCRA section 4005(a). These
requirements apply directly to facilities.
EPA issues guidelines and recommendations pursuant to these sections, which are used in
approving state solid waste permitting programs under RCRA sections 4002 and 4003. Section
1008(a) requires that "where appropriate," these guidelines shall direct states to include
"demographic" factors in determining the location, design, and construction of solid waste
management facilities.
Consistent with that direction, EPA promulgated guidelines for state solid waste
management plans developed under RCRA section 4002(c) that may include consideration of
factors such as "population density, distribution, and projected growth" and the "political,
economic, organizational, financial, and management affecting comprehensive solid waste
management." EPA could, for example, develop guidelines that encourage states to consider
demographic and socio-economic factors as well as disproportionate burdens on communities
with environmental justice concerns and cumulative risks to communities when siting new solid
waste management facilities.
H. RCRA Section 3005(c)(3) — Omnibus Authority
The "omnibus" authority provides that "[e]ach permit issued under this section shall
contain such terms and conditions as the Administrator (or the State) determines necessary to
protect human health and the environment."98 This authority allows EPA and authorized states to
address cumulative impacts of pollution in specific contexts and other health stressors in
communities that have been systematically and disproportionally burdened by environmental
pollution. The Agency's longstanding position is that EPA can consider factors relevant to
96 See RCRA § 9003(h)(2), (h)(5); 42 U.S.C. § 9661(h)(2), (5).
97 RCRA §§4001-4010.
98 RCRA § 3005(c)(3), 42 U.S.C. § 6925(c)(3) (implementing regulations promulgated at 40 C.F.R. § 270.32(b)(2)).
26
-------
cumulative impacts such as cumulative risk, unique exposure pathways, or sensitive populations
in establishing hazardous waste permits."
As discussed in the RCRA section of EJLegal Tools, the landmark decision that set out
EPA's and the Environmental Appeals Board's (EAB's) position on the consideration of
cumulative impacts in RCRA permitting is In re Chemical Waste Management of Indiana.100 As
stated by the EAB, RCRA's omnibus clause authorizes EPA to impose permit conditions as
follows:
Under the omnibus clause, if the operation of a facility would have an adverse impact on
the health or environment of the surrounding community, the Agency would be required
to include permit terms or conditions that would ensure that such impacts do not occur. . . .
Thus, under the omnibus clause, if the operation of a facility truly poses a threat to the
health or environment of a low-income community or community of color, the omnibus
clause would require the Region to include in the permit whatever terms and conditions are
necessary to prevent such impacts.101
As such, in carrying out EPA's hazardous waste permitting program102 and in EPA's
oversight of authorized state hazardous waste permitting programs,103 EPA can take into account
cumulative impacts to "justify permit conditions or denials based on disproportionately high and
adverse human health or environmental effects."104 Specifically, EPA can "tak[e] a more refined
look at its health and environmental impacts assessment, in light of allegations that operation of
the facility would have a disproportionately adverse effect on the health or environment of low-
income or minority populations."105
I. Permit Conditions and Risk Assessments to Address Cumulative Impacts
Most states are authorized to carry out their own hazardous waste programs—including
the omnibus authority—in lieu of the federal RCRA program. Thus, most permit conditions,
including conditions implementing omnibus, will be established by authorized states, not EPA.
EPA may, however, comment on permits issued by state authorities. Where the state is
authorized for omnibus authority and does not address factors identified in EPA comments as
necessary to protect human health and the environment, EPA may seek to enforce the
99 See Memorandum from Gary S. Guzy, Gen'l Counsel, Off. of Gen'l Counsel, EPA, to Steven A. Herman, Asst.
Admin., Off. of Enforcement and Compliance Assurance, EPA (Dec. 1, 2000),
https://www.epa.gov/sites/default/files/2015-02/documents/ei permitting authorities memo 120100.pdf.
100 In re Chemical Waste Management of Indiana, Inc., 6 E. A.D. 66 (EAB 1995) (examining for the first time the
general policy directive set out in E.O. 12898 in the context of a RCRA permit),
https://yoseniite.epa.gov/oa/EAB_Web Docket.nsf/Published%20Decisions%20By%20Citation/75A5A197B66F09
8685257069005F7C38/$File/cwmii.pdf. See also EJ Legal Tools, supra note 3, at 100-103.
101 In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. at 74.
102 40 C.F.R. pt. 270.
103 40 C.F.R. pt. 271.
104 In re Chemical Waste Management, 6 E.A.D. at 74-75.
105 Id. It is important to remember that the EAB has repeatedly stated that an exercise of omnibus authority must be
supported by an adequate administrative record. E.g., In re Ash Grove Cement Co., 7 E.A.D. 387, 395-397 (EAB
1997) (citing In re Amoco Oil Co., 4 E.A.D. 954, 970-71 (EAB 1993) ("the Agency's bare assertion that a permit
condition is authorized by RCRA's omnibus provision is insufficient; the Agency must "provide a properly
supported finding that the * * * provisions are necessary to protect human health and the environment.")).
27
-------
requirements it identified as necessary in its comment.106 Alternatively, if the state is not
authorized for omnibus authority, EPA may superimpose any necessary additional conditions
under the "omnibus" authority in the federal portion of the permit.107
When EPA issues a permit for a facility or specific unit at a facility that is otherwise
permitted by a state, EPA can, where supported by an adequate factual record, rely on omnibus
authority to require a facility to perform an assessment of hazardous waste management practices
that have the potential to pose threats to human health and that are not specifically addressed by
RCRA regulations.108 Such an assessment may be initiated when a facility owner or operator
seeks a new permit or renewal of an expiring permit, or when an existing permit is reopened for
modification.109
One way to evaluate such threats to human health is through a risk assessment that
evaluates the health and environmental impacts of the facility's operation on a community and
includes, among other things, the cumulative impact of pollution exposures from sources beyond
the applicant facility.110 Where supported by the findings of the risk assessment, EPA can require
compliance with additional performance standards through permitting to protect human health
and the environment, even though the terms are not specifically mandated by the regulations. For
example, if the risk assessment concludes that lead emissions from a hazardous waste combustor,
when combined with the exposures from other facilities in the area, would exceed safe levels,
EPA can impose additional conditions (beyond those authorized in 40 C.F.R. Part 264) to reduce
the hazardous waste emissions to safe levels.
For certain RCRA-permitted facilities (e.g., hazardous waste combustion complying with
the Clean Air Act standards set forth at 40 C.F.R. Part 63, Subpart EEE), an assessment of
cumulative impacts is expressly authorized by the regulations under certain circumstances.
Specifically, 40 C.F.R. § 270.10(1) directs a permitting authority to require the submission of
additional information or assessments to determine whether additional controls are necessary to
protect human health, where the permitting authority concludes that compliance with the
standards of 40 C.F.R. Part 63, Subpart EEE alone may not be protective of human health or the
environment. The regulation directs the permitting authority to base this determination on
considerations such as "proximity to . . . potentially sensitive receptors" (such as overburdened
communities) and "identities and quantities of other off-site sources of pollutants in proximity of
the facility that significantly influence interpretation of a facility specific risk assessment."111
EPA could also use the authority under RCRA section 3013 or 40 C.F.R. § 270.10(k) to
compel a facility owner or operator to carry out necessary studies, so that, pursuant to the RCRA
"omnibus" authority, EPA can ensure permit terms or conditions are protective of human health
taking into account the cumulative impacts to overburdened communities.
106 40 C.F.R. § 271.19(e).
107 RCRA § 3005(c).
l0S Id.
109 40 C.F.R. § 270.41.
110 See, e.g., 2022 ORD CUMULATIVE IMPACTS REPORT, supra note 1.
111 40 C.F.R. § 270.10(1)(1).
28
-------
J. Example of EPA RCRA Permitting Authority Addressing Cumulative Impacts
Below is an example wherein EPA evaluated health impacts of neighboring communities
to inform the Agency's decisions and oversight related to permit conditions necessary to protect
human health. This example illustrates the interaction between Clean Air Act (CAA) Title V
permitting and RCRA hazardous waste permitting to address cumulative impacts in
overburdened communities affected by hazardous waste combustors. Specifically, the CAA
regulations require that Title V permit terms ensure compliance with the National Emission
Standards for Hazardous Air Pollutants (NESHAP) from hazardous waste combustors (located at
40 C.F.R. Part 63, Subpart EEE), where those standards are applicable. Under RCRA, if EPA or
a state concludes that compliance with Subpart EEE NESHAP alone may not be protective of
human health or the environment, then EPA or the state shall require a site-specific risk
assessment (SSRA) to determine whether additional permit conditions are necessary and should
be incorporated into a RCRA permit, to ensure protection of human health and the
environment.112
When evaluating permit conditions to mitigate adverse effects on neighboring
communities, EPA regional permitting teams may rely on EPA's RCRA public participation
guidance, which discusses how to engage communities that are experiencing cumulative
environmental and health impacts and how to consider those multiple and cumulative effects in
the RCRA permitting process.113 Other tools to consider are those developed by EPA for its
NEPA program, particularly the Promising Practices for EJ Methodologies in NEPA Reviews,
which is a useful compilation of methodologies gleaned from current Agency practices
concerning environmental justice throughout the NEPA process.114
RCRA Incinerator Site Specific Risk Assessment and CAA Title V Permit for Veolia
Veolia ES Technical Services, L.L.C. (Veolia) owns and operates three hazardous waste
incinerators at its hazardous waste storage and disposal facility in Sauget, IL. The incinerators
operate under an Illinois EPA RCRA permit and an EPA CAA Title V permit. Veolia is located
in an area with significant environmental justice concerns.
In 2013, EPA reopened Veolia's Title V permit to incorporate additional requirements to
assure continuous compliance with Subpart EEE NESHAP. Specifically, EPA proposed as
permit requirements feedrate limits for Veolia's hazardous waste incinerators, the
implementation of a feedrate analysis plan, and the installation and operation of a multi-metals
continuous emissions monitoring system on the facility's combustion unit that had the highest
potential emissions for mercury, semi-volatile metals (lead and cadmium), and low volatile
metals (arsenic, chromium, and beryllium) for a period of at least 12 months. In support of its
recommendation for additional monitoring, EPA described the facility's location in an area with
significant environmental justice concerns and results from a 2008 RCRA SSRA that showed
mercury emissions from the Veolia facility could result in the deposition of mercury in and
112 40 C.F.R. § 270.10(1).
113 See RCRA Public Participation Tools and Resources, EPA, https://www.epa.gov/hwperniitting/rera-piibtie-
participation-tools-and-resonrces.
114 See EJ IWG Promising Practices for EJ Methodologies in NEPA Reviews, EPA,
https://www.epa.gov/environmentalinstice/ei-iwg-promising-practices-ei-methodologies-nepa-reviews.
29
-------
around lakes used for fishing downwind of the facility.115 Due to the facility's location, EPA also
provided enhanced public participation opportunities regarding the permit renewal to
communities near Veolia.
From 2013 through 2019, EPA engaged extensively with the public and Veolia
concerning both the permitting and compliance at Veolia's facility. In making its 2019 Title V
permitting decision, EPA considered source-specific circumstances, including Veolia's
compliance history, the variability of its feedstream, and its location in an area with significant
environmental justice concerns, which EPA noted underscored the need to establish conservative
feedrate limits for heavy metals. The 2019 Title V permit did not significantly change the
emission limit requirements in the 2008 Title V permit. Pursuant to a settlement agreement
between EPA and Veolia, the 2019 permit added limits on how much arsenic, lead, mercury, and
other metals Veolia can put into its incinerators by limiting the feedrate into each incinerator.
The 2019 permit also requires additional monitoring to ensure that Veolia complies with its
emissions limits and requires Veolia to install and operate mercury emissions controls on two
incinerators that previously did not have mercury controls.116
Also in 2019, EPA updated its RCRA SSRA for the Veolia facility at the request of the
Illinois EPA and the Illinois Attorney General's Office. As stated above, the specific purpose of
the SSRA was to determine certain constituent emission rates that are expected to be protective
of human health in the area around the facility and recommend that the RCRA permit ensures
this protectiveness. In order to ensure protectiveness, the SSRA took into consideration the
impacts of the chemical constituents permitted under CAA Title V on the specific population
impacted by the facility. The SSRA identified potential exposure pathways and estimated the
measurement of chemical exposure (e.g., concentrations for the various environmental media or
doses) for the potential exposure pathways, based upon various exposure assumptions and the
characteristics of the population receiving the exposure. This included, among other things,
evaluation of fish-ingestion risk and computer modeling (the IEUBK model) to evaluate whether
potential lead emissions from the facility could have a significant impact on the predicted blood
lead level of children assumed to reside in residential neighborhoods near the facility. EPA
concluded that the SSRA demonstrated that compliance with the Title V feedrate limits should
be protective of public health near the facility but also recommended that Illinois EPA consider
including mercury and chromium emission limits in its RCRA permit.117
II. Oil Pollution Act
The Oil Pollution Act amendments to the CWA provide for response efforts to remove a
discharge of oil in accordance with the National Contingency Plan and any appropriate Area
115 See EPA REGION 5, STATEMENT OF BASIS, AlR POLLUTION CONTROL TITLE V PERMIT TO OPERATE PERMIT NO.
V-IL-1716300103-08-01 Significant Modification (2013), https://www.epa.gov/sites/default/fi les/20.1.7-
01/doeuments/veotia~statement~basis~draft~2013.pdf. It is important to note that the CAA Title V program itself does
not grant EPA the authority to create new limits or other requirements based on these concerns.
116 See Veolia SaugetAir Permitting, EPA, https://www.epa.gov/caa-permitting/veolia-sanget-air-perniitting.
117 See Veolia Sauget Site-Specific Risk Assessment, EPA, https://www.epa.gov/caa-permitting/veolia-sauget-site-
specific-risk-assessment. See also EPA Region 5, Site-Specific Risk Assessment for Human Health
from Hazardous Waste Combustion: Veolia ES Technical Solutions, L.L.C., Sauget, Illinois,
https://www.epa.gov/sites/defanit/files/2019-10/docnments/veolia ssra report.pdf.
30
-------
Contingency Plan (ACP). CWA section 31 l(c)(3)(j) provides that ACPs include a description of
the areas of special economic or environmental importance that might be damaged by a
discharge. Currently, EPA's practice is to include critical infrastructure and areas of economic
interest in its ACPs and subarea contingency plans. As part of the planning process, EPA can
perform an environmental assessment to identify and evaluate cumulative impacts and develop
response strategies that mitigate the impact of an oil spill and oil spill response activities.
Further, EPA area committees and subarea committees can include local community groups in
their planning initiatives to ensure collaborative community engagement to help identify
potential areas of importance in the development of the ACP.118
EPA also has authority to regulate aboveground storage tanks (ASTs) containing
regulated substances under its Spill Prevention, Control, and Countermeasure (SPCC)
regulation.119 SPCC inspectors may evaluate whether a facility with ASTs is located in a
community with environmental justice concerns and may take into account factors relevant to
cumulative impacts, such as cumulative risks, unique exposure pathways and scenarios, and
sensitive communities, when targeting inspections.
III. Emergency Planning and Community Right-to-Know Act
The Emergency Planning and Community Right-to-Know Act (EPCRA) requires local
emergency planning committees to prepare emergency response plans for facilities that contain
certain amounts of designated extremely hazardous substances. EPA could publish guidance on
considering environmental justice 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.120
A. EPCRA Section 312(b)
This section provides that EPA may establish threshold quantities for hazardous
chemicals, below which no facility is subject to the emergency and hazardous chemical
inventory form reporting requirements. Threshold quantities may, in EPA's discretion, be based
on classes of chemicals or categories of facilities. These general provisions provide substantial
discretion to EPA and presumably could be used by EPA to consider cumulative impacts in
establishing threshold quantities for hazardous chemicals under two key reporting requirements
in the Act.121
B. EPCRA Section 313(e)
This section provides that any person may petition EPA to add or delete a chemical from
the EPCRA list of chemicals subject to the toxic chemical release form reporting requirements.
118 See Preamble to the NCP and the notice of rulemaking for NCP at 58 Fed. Reg. 54,644, 54,711-13 (Oct. 22,
1993), 59 Fed. Reg. 47,384, 47,229-47,524 (Sept. 15, 1994).
119 40 C.F.R. pt. 112.
120 EJ Legal Tools, supra note 3, at 118.
121 Nat'l Env't Justice Advisory Council, Ensuring Risk Reduction In Communities with Multiple
Stressors: Environmental Justice and Cumulative Risks/Impacts (2004),
https://www.epa.gov/sites/defaiilt/files/2015-04/dociHnents/ensiiringriskrediicationneiac.pdf.
31
-------
The petition must be based on the same criteria that the statute directs EPA to use in making
deletions and additions to the list. This regulatory process could be used specifically to promote
environmental justice because it authorizes petitions to EPA to list chemicals that may present
particular threats to low-income communities and communities of color, due to cumulative
exposures, sensitive populations, or consumption patterns.122
IV. Comprehensive Environmental Response, Compensation, and Liability Act
The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), commonly referred to as Superfund, authorizes the federal government to respond to
releases and threats of releases into the environment of hazardous substances, pollutants, or
contaminants. EPA does so by taking response measures, generally consistent with the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP),123 deemed "necessary to
protect the public health or welfare or the environment."124 EPA's authority to take actions
"necessary to protect the public health or welfare or the environment" authorizes EPA to ensure
fair treatment and meaningful participation in environmental decision-making for communities
with environmental justice concerns that are disproportionately impacted. Additionally,
CERCLA's mandate to consider "public health or welfare or the environment" 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.125
A. CERCLA Section 105(a)(8)
Section 105(a) gives EPA broad general authority to determine methods for investigating
and evaluating sites. Section 105(a)(8)(A) sets the criteria to be considered in Hazard Ranking
System (HRS) evaluations for determining priorities among releases for inclusion on the
National Priorities List (NPL) which must be based, in part, on "relative risk or danger to the
public health or welfare or the environment," taking into account to the extent possible the
"population at risk" and several other considerations set out in the statute, as well as "other
appropriate factors."126 The HRS is a screening model that exclusively uses numerical inputs in
determining whether inclusion on the NPL is appropriate. Once enough data is available to reach
the minimum cut-off score for NPL eligibility, obtaining additional data to increase the score
does not affect the NPL listing decision. The current HRS includes calculations for certain
cultural or economic characteristics such as population density, subsistence fishing, water bodies
used for cultural/religious purposes, and community gathering places such as recreational,
religious and ceremonial locations, educational institutions, and daycare facilities. Additional
evaluation and quantification of potential environmental justice and cumulative impacts could
inform refinements to the HRS screening that would likely require new rulemaking. Other areas
of the CERCLA pre-remedial program can be enhanced by formulating strategies to advance
environmental justice within the site assessment prioritization and decision-making process.
122 Id.
123 40 C.F.R. pt. 300.
124 CERCLA § 104(a)(1).
125 See definitions of the terms "response," "removal," and "remedial action" at CERCLA §§ 101(25), 101(23), and
101(24), respectively.
126 42 U.S.C. § 9605(a)(8)(A).
32
-------
B.
CERCLA Sections 104,106 and 121
Section 104 of CERCLA provides EPA with response authority to conduct removals and
"provide for remedial action . . . [as] necessary to protect the public health or welfare or
the environment.127 EPA may consider factors related to the population impacted by the area
pollution and multiple unique exposure pathways.128 A necessary component of fulfilling the
congressional objective to protect human health is the authority to identify, assess, and evaluate
alternatives to address risk from a release or threatened release in EPA decision-making and
actions. For CERCLA actions that require risk-based decision-making, incorporating assessment
of cumulative impacts into ATSDR health assessments and site-specific baseline risk
assessments promotes statutory goals and assists in meeting statutory and regulatory
requirements for the protection of human health and welfare.
EPA uses baseline risk assessment to make risk management decisions such as
determining whether remedial action under CERCLA section 104 or 106 is necessary.129
Baseline risk assessments characterize the current and potential threats to human health and the
environment that may be posed by multiple contaminants and multiple pathway such as
migration to ground water or surface water, releases to air, leaching through soil, remaining in
soil, and bioaccumulating in the food chain.130 In characterizing risk, EPA risk assessors
consider cumulative impacts by comparing the estimated or measured exposure level for each
stressor and plant or animal population, community, or ecosystem of concern and the data on
expected effects for that specific group.131
EPA also uses baseline risk assessments in selecting appropriate remedies under
CERCLA section 121.132 In selecting a remedy for a site, CERCLA section 121 and theNCP133
require EPA to consider nine criteria, including "overall protection of human health and the
environment" and "community acceptance." The NCP establishes a programmatic goal of
selecting remedies that are protective of human health and the environment134 and calls for a
baseline risk assessment to characterize threats to human health and the environment, as well as
the development of alternatives to address exposure pathways and reduce or eliminate risks,
including cumulative risks, at the site.135
127 42 U.S.C. § 9604(a).
128 See Nat'l Env't Justice Advisory Council, Ensuring Risk Reduction in Communities with Multiple
Stressors: Environmental Justice and Cumulative Risks/Impacts (2004),
https://www.epa.gov/sites/defaiilt/files/2015-04/dociHnents/ensiiringriskrediicationneiac.pdf.
129 See EPA Office of Solid Waste and Emergency Response, OSWER DIRECTIVE 9355.0-30: Role of the
Baseline Risk Assessment in Superfund Remedy Selection Decisions (1991),
https://www.epa.gov/sites/default/files/2015-ll/documents/baseline.pdf.
130 40 C.F.R. § 300.430(d)(4).
131 See Human Health Risk Assessment, EPA, https://www.epa.gov/risk/human-health-risk-assessment.
132 See EPA Office of Solid Waste and Emergency Response, OSWER DIRECTIVE 9355.0-30: Role of the
Baseline Risk Assessment in Superfund Remedy Selection Decisions (1991),
https://www.epa. gov/sites/default/fi tes/20.1.5 - .1.1/documents/baseli ne. pdf.
133 40 C.F.R. § 300.430(f).
134 40 C.F.R. § 300.430(a)(l)(i).
135 See 40 C.F.R. § 300.430(d)(4), (e)(2)(i)(D).
33
-------
A cumulative impact assessment approach to risk-based decision-making such as remedy
selection can be part of EPA's existing risk assessment methods that have been developed and
expanded over time.136 For example, Part A of EPA's Risk Assessment Guidance for Superfund
(RAGS) includes consideration of site-specific epidemiological or health studies and provides
for aggregating risks for multiple substances, combining risks across exposure pathways and
identifying reasonable exposure pathway combinations. Further, CERCLA section 104(i)(6)
provides for ATSDR health studies related to each facility on the NPL. ATSDR health
assessments may be used to facilitate EPA's consideration of cumulative impacts during
CERCLA response actions.137
C. CERCLA Example
The Abex Superfund Site in Portsmouth, VA illustrates how EPA uses ATSDR health
assessments and baseline risk assessment to consider cumulative impacts at both the pre-Record
of Decision (ROD) and post-ROD stages of CERCLA response actions. To help prevent and
reduce further exposure to lead, EPA's remedy provided permanent relocation to private
landowners and included institutional controls to ensure that the property could not be used for
residential purposes in the future to reduce exposure to lead in housing complexes.138
In addition, EPA worked closely with the community to offer resources and tools to
address environmental and health concerns. For example, EPA, along with federal, state, and
local partners, coordinated an environmental health workshop at the community.139 One such
workshop, the Portsmouth Environmental Health Workshop, offered area residents the
opportunity to learn more about environmental health topics that impact their communities such
as urban lead exposure. In addition, the workshop offered free soil lead screening for residents
and free blood lead screening for children, with results available in minutes.
136 See 2022 ORD CUMULATIVE IMPACTS Report, supra note 1.
137 ATSDR is a department of the Health and Human Services agency that helps prevent or reduce the harmful
effects of human exposure to hazardous substances. CERCLA requires ATSDR to conduct public health
assessments at all NPL and proposed NPL sites. Anyone may request or petition ATSDR to do a health consultation
at other sites. See Frequently Asked Questions About ATSDR, ATSDR, https://www.atsdr.cdc.gov/faq.htinl; see also
ATSDR, Framework for Assessing Health Impacts of Multiple Chemicals and Other Stressors
(Update) (2018), https://www.atsdr.cdc.gov/interactionprofiles/ip-ga/ipga.pdf.
138 See generally Superfund Site: Abex Corp. Portsmouth, VA, EPA,
https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0302667.
139 See EPA, ABEX Corp Superfund Site Community Update (2019),
https://semspnb.epa.gov/work/03/2278059.pdf
34
-------
CHAPTER FOUR: PESTICIDES AND TOXICS PROGRAMS
I. Federal Insecticide, Fungicide, and Rodenticide Act and Federal Food, Drug, and
Cosmetic Act
As outlined in EJLegal Tools, EPA has several authorities to advance environmental
justice under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal
Food, Drug, and Cosmetic Act (FFDCA).140 Among these authorities, some also authorize EPA
to address cumulative impacts in a manner that could provide additional opportunities to advance
environmental justice. The authorities and examples provided in this chapter are not a
comprehensive accounting of all of EPA's pesticides and toxics authorities related to cumulative
impacts. Whether and how EPA utilizes these and other authorities will depend on the specific
statutory, regulatory, policy, scientific, and factual contexts at issue, as well as the resources
available to the Agency.
In certain contexts, the terms "cumulative impacts" and "aggregate exposure" may not
encompass the combined exposures to the full array of stressors but may refer instead to the
cumulative or aggregate impacts of only a specific set of pollutants or in specific media exposure
pathways.141 EPA program and regional offices should consult with the relevant Office of
General Counsel and Office of Regional Counsel attorneys regarding potential legal issues
associated with whether and how to consider cumulative impacts to advance environmental
justice.
A. FIFRA
Under FIFRA, EPA may only register a pesticide if, among other things, the pesticide
"will not generally cause unreasonable adverse effects on the environment."142 Section 2(bb) of
FIFRA defines "unreasonable adverse effects," in part, as "any unreasonable risk to man or the
environment, taking into account the economic, social, and environmental costs and benefits of
the use of any pesticide."143 The statute does not specify the economic, social and environmental
factors to be weighed in the cost/benefit analysis beyond the requirement that the cost or benefit
be tied to the pesticide use. Moreover, section 2(bb) of FIFRA provides that any unreasonable
risk from pesticide use warrants consideration.144
Given the congressional mandate to consider a wide range of factors in balancing costs
against benefits, EPA could interpret this provision as providing authority for the Agency to
consider cumulative impacts associated with the pesticide when determining whether to register
a pesticide. For example, if there is a particular community that the Agency believes is
disproportionately affected by, or exposed to, a pesticide, the Agency may take this into account
in its assessment of social or human health costs associated with a given pesticide. The potential
for a community to have disproportionate exposure to a pesticide is related, in part, to the type of
pesticide (e.g., insecticide, fungicide, etc.), its use profile (e.g., frequency and method of
140 EJ Legal Tools, supra note 3, at 111-18 (FIFRA), 119 (FFDCA).
141 See supra INTRODUCTION.
142 FIFRA § 3(c)(5).
143 FIFRA § 2(bb).
144 See FIFRA §§ 3(c)(5), 5(e) (experimental use permits), 6(b) (cancellation).
35
-------
application), and the expected exposed populations (e.g., children or Indigenous populations), as
well as behavioral/activity patterns and exposure pathways.145
For example, during the reregi strati on process for the pesticide lindane, EPA found that
the risks of continued registration of the pesticide outweighed the benefits of the registered use
(seed treatment), compelling the conclusion that the pesticide use was not eligible for
reregi strati on under FIFRA.146 In the amended reregi strati on eligibility decision, EPA identified
several sources of exposure to lindane beyond exposures directly from pesticide applications. As
part of the analysis, EPA considered (1) past uses of lindane that, due to its persistent,
bioaccumulative nature and potential for long-range transport, would potentially result in
continued exposures to lindane; (2) consumption of imported meat containing lindane residues;
and (3) pharmaceutical uses of lindane.147 Due to its mobility and high persistence in the
environment, EPA also evaluated lindane exposures in Indigenous populations who rely on
subsistence diets.148 All of these existing sources of exposure to lindane created a "reservoir of
lindane in the environment" that was considered in addition to the exposure from the registered
pesticide use under evaluation.
B. FFDCA
EPA also has authorities regarding the development of tolerances (the legal limit for a
pesticide chemical residue in or on a food) and tolerance exemptions that may be relevant to
addressing cumulative impacts in the form of consideration of "aggregate exposure" to the
pesticide chemical. The FFDCA explicitly directs the Agency to incorporate "aggregate
exposure" in its decision-making on tolerances and tolerance exemptions.149 Under the FFDCA,
aggregate exposure refers to the combined exposures to a single chemical across multiple routes
(oral, dermal, inhalation) and across multiple pathways (food, drinking water, residential). For
example, EPA revoked tolerances for the pesticide carbofuran after determining the aggregate
exposure to residues from these tolerances did not meet the safety standard of section 408(b)(2)
145 See EPA, Standard Operating Procedures for Residential Pesticide Exposure Assessment at 1-7
(2012), https://www.epa.gov/sites/default/files/2015-08/documents/usepa-opp-hed residential sods oct2012.pdf:
see also EPA, Label Review Manual at .1. .1.-23 (20.1.4) (the method of application may include tank mixing of
multiple pesticide products).
146 EPA, Addendum to the 2002 Lindane Reregistration Eligibility Decision (RED) at 15 (Jul. 2006),
https://www.regulations.gov/document/EPA-HO-OPP-2002-0202-0Q74.
147 Id. at 5-7.
148 Id. at 7; see also EPA, ASSESSMENT OF LINDANE AND OTHER HEXACHLOROCYCLOHEXANE ISOMERS at 45^16
(2006).
149 First, FFDCA section 408(b)(2)(A)(ii) requires OPP to make a finding for each tolerance "that there is a
reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all
anticipated dietary exposures and all other exposures for which there is reliable information." Section
408(b)(2)(C)(ii)(I) of the FFDCA also states that the Agency must find "there is a reasonable certainty that no harm
will result to infants and children from aggregate exposure to the pesticide chemical residues." Finally, section
408(b)(2)(D)(vi) requires EPA to consider "aggregate exposure levels ... to the pesticide chemical residue . ..
including dietary exposure and exposure from other non-occupational sources."
As noted above, under FIFRA, the Agency may register a pesticide only if the use of the pesticide will not cause
"unreasonable adverse effects on the environment." The term "unreasonable adverse effects on the environment" is
also defined to include human dietary risk from residues that result from a use of a pesticide in or on any food
inconsistent with the standard under section 408 of the FFDCA. Therefore, the standard for making decisions
whether to register or continue registration of a pesticide for food-use must satisfy the standards in the FFDCA.
36
-------
of the FFDCA.150 In order to derive the estimate for aggregate exposure, EPA combined the
national food exposures to carbofuran with the exposures derived for individual region and crop-
specific drinking water scenarios.151
A further authority to account for cumulative impacts under the FFDCA is the
requirement to "consider . . . available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers."152 Such subgroups could include, for example,
consumers with subsistence diets, and EPA's identification and subsequent analysis of such
relevant subgroups could provide a mechanism to take cumulative impacts into account for
communities with environmental justice concerns.
Under the FFDCA, the Agency also must evaluate the "cumulative effects" from multiple
chemical substances when the pesticide and other substances share a common mechanism of
toxicity. Specifically, FFDCA section 408(b)(2)(D)(v) requires that, when considering whether to
establish, modify, or revoke a tolerance, the Agency "consider . . . available information"
concerning the cumulative effects of a particular pesticide's residues and "other substances that
have a common mechanism of toxicity." To implement this provision, once a group of
substances that shares a common mechanism of toxicity is identified, the Agency evaluates all
the registered and proposed uses for each substance in order to identify potential exposure
pathways (food, drinking water, residential).153 EPA then determines the combined estimated
risk associated with exposure to the substances that share a common mechanism.154
II. Toxic Substances Control Act
EJLegal Tools outlines several authorities to advance environmental justice
considerations under the Toxic Substances Control Act (TSCA), as amended by the Frank R.
Lautenberg Chemical Safety for the 21st Century Act.155 Some of those authorities are further
discussed in this Addendum as examples of EPA's authority under TSCA to enhance
consideration of key aspects of cumulative impacts. In particular, there are several overarching
authorities in TSCA section 26 that compel the Agency, in carrying out TSCA sections 4
(testing), 5 (risk assessments for new chemical substances and regulation of significant new
uses), and 6 (risk evaluation and regulation of existing chemical substances), to consider
reasonably available information156 and make decisions consistent with the best available
science157 and that are based on the weight of the scientific evidence.158 These authorities are
relevant to the Agency's consideration of cumulative impacts where such consideration is
appropriate.
150 Carbofuran; Final Tolerance Revocations, 74 Fed. Reg. 23,046, 23,087 (May 15, 2009),
https://www.fede ral register.gov/cl/E9-11396/p-354.
151 74 Fed. Reg. at 23,051.
152 FFDCA § 408(b)(2)(D)(vii).
153 See EPA, Pesticide Cumulative Risk Assessment: Framework for Screening Analysis Purpose at 10
(2016), https://www.regiiiations.gOv/docnment/EPA-HO-OPP-20.l.5-0422-0019.
154 Id. at 12.
155 EJ Legal Tools, supra note 3, at 122-41.
156 15 U.S.C. § 2625(k).
157 15 U.S.C. § 2625(h).
158 15 U.S.C. § 2625(i).
37
-------
A. Section 4 Testing
Identification and characterization of chemical and non-chemical stressors is an important
first step towards assessing cumulative impacts.159 TSCA has authority to require testing through
which EPA may obtain information relevant to the assessment of cumulative impacts, subject to
other considerations (e.g., reduction vertebrate animal testing and tiered testing).160 Once EPA
determines that testing of a substance or mixture is necessary under section 4(a), TSCA section
4(b) requires that test rules and orders include protocols and methodologies for the development
of information on a substance, and section 4(b)(2)(A) specifically provides that the health and
environmental effects for which such protocols and methodologies may be prescribed include
"cumulative or synergistic effects."
B. Potentially Exposed or Susceptible Subpopulations
As further explained in EJLegal Tools,161 EPA considers the general population and is
required to consider relevant "potentially exposed or susceptible subpopulations" (PESS) when
conducting risk assessments during the Agency's review of new chemical substances or
significant new uses under TSCA section 5162 and risk evaluations of existing chemical
substances under TSCA section 6.163 PESS refers to "a group of individuals within the general
population identified by the Administrator who, due to either greater susceptibility or greater
exposure, may be at greater risk than the general population of adverse health effects from
exposure to a chemical substance or mixture, such as infants, children, pregnant women,
workers, or the elderly."164 The statute does not define "greater exposure" or "greater
susceptibility," thereby providing EPA discretion to account for a population's cumulative
impacts, i.e., relevant chemical and non-chemical stressors, when identifying PESS.
For example, EPA has indicated that, where information is reasonably available, it could
consider communities that live near industrial facilities and that may be disproportionately
exposed to chemicals over long periods of times as PESS in ongoing risk evaluations.165 EPA
may also consider non-chemical stressors to identify more susceptible subpopulations.166
Through its identification and subsequent analysis of PESS, EPA can take cumulative impacts
into account in the risk determination for a chemical substance.
159 2022 ORD Cumulative Impacts Report, supra note 1, at 18.
160 EJ Legal Tools, supra note 3, at 126-27.
161 Id. at 137-38, 144-45, 148-49.
16215 U.S.C. § 2604(a)(3)(A), (a)(3)(B)(ii)(I), (a)(3)(C).
163 15 U.S.C. § 2605(b)(4)(D).
164 15 U.S.C. §2602(12).
165 See, e.g., EPA, Final Scope of the Risk Evaluation for 1,3-Butadiene at 38 (2021),
https://www.epa.gov/sites/default/files/2020-09/documents/casrn 106-99-0 .1.3-butadiene :fi nalseope.pdf.
166 See EPA, Framework for Cumulative Risk Assessment at 41 (May 2003),
https://www.epa.gov/sites/defa.ult/files/2i iocuments/frmwrk cum risk assmnt.pdf: see also EPA,
Technical Guidance for Assessing Environmental Justice in Regulatory Analysis, at 19 (June 2016),
https://www.epa.gov/sites/default/files/2016-06/documents/eit 5.1.pdf.
38
-------
C. Section 6 Risk Evaluation — Aggregate Exposure and Categories of Chemical
Substances
One component of assessing cumulative impact is the evaluation of "multiple exposure
pathways across media."167 Section 6(b)(4)(F)(ii) of TSCA requires EPA, as a part of an existing
chemical risk evaluation, to describe whether aggregate or sentinel exposures to a chemical
substance under the conditions of use were considered, and the basis for their consideration.168
The Office of Pollution Prevention and Toxics has defined aggregate exposure as "the combined
exposures to an individual from a single chemical substance across multiple routes and across
multiple pathways."169 "Routes" is further defined as "the particular manner by which a chemical
substance may contact the body," and "pathways" is defined as "the mode through which one is
exposed to a chemical substance, including but not limited to: [f]ood, water, soil, and air."170
Thus, the authority to consider aggregate exposure in a risk evaluation under TSCA section 6
provides opportunity to account for the "multiple exposure pathway" component of cumulative
impacts in a TSCA risk evaluation for a chemical substance. For example, EPA was able to
further advance consideration of cumulative impacts in a 2020 risk evaluation by both
identifying subsistence fishers in the general population as a PESS, and then conducting a
separate aggregate exposure analysis specific to subsistence fishers.171
Assessing cumulative impacts is also linked to assessing cumulative risk from multiple
chemical substances.172 TSCA gives EPA the authority to evaluate the combined risk from
multiple chemical substances when there is an interrelated group of chemicals or mixtures in a
manner that is consistent with the best available science and based on the weight of the scientific
evidence.173 Under TSCA section 26(c), EPA may take "any action authorized" under any
provision of TSCA, in accordance with that provision, with respect to a category of chemical
substances or mixtures. The definition of "category" is very broad and may include substances
that share similar structure or physical, chemical, or biological properties.174 Where appropriate,
EPA may utilize this authority to assess risk to a category of chemical substances in a risk
evaluation under TSCA section 6.
167 2022 ORD Cumulative Impacts Report, supra note 1, at 5.
168 15 U.S.C. § 2605(b)(4)(F)(ii).
169 40 C.F.R. § 702.33.
170 40 C.F.R. § 702.33.
171 EPA, Risk Evaluation for Cyclic Aliphatic Bromide Cluster (HBCD) at 33, 39 (Sept. 2020),
09/documents/l. risk evaluation for cyclic aliphatic bromide cluster fabed easm25637~99~4 easrn 3.1.94-
5 casrn 3194~57~8.pdf.
172 2022 ORD Cumulative Impacts Report, supra note 1, at 4.
173 See H. Rep. No. 94-1679, at 60-61 (1976) (Conf. Rep.) ("[T]he conferees do not intend that a substance or
mixture must be the single factor which results in the presentation of the risk. Oftentimes an unreasonable risk will
be presented because of the interrelationship or cumulative impact of a number of different substances or mixtures.
The conferees intend that the Administrator have authority to protect health and the environment in such
situations.").
17415 U.S.C. § 2625(c)(2)(A).
39
-------
CHAPTER FIVE: ENVIRONMENTAL REVIEW PROGRAMS
I. EPA National Environmental Policy Act Compliance and CAA Section 309 Reviews
The National Environmental Policy Act (NEPA)175 applies broadly to federal actions that
may significantly affect the environment.176 NEPA requires disclosure of federal proposals'
impacts, and consideration of reasonable alternatives and practicable mitigation to avoid or
reduce those impacts, among other things. Compliance with NEPA routinely involves disclosing
any disproportionate impacts on communities with environmental justice concerns, including
cumulative impacts, along with consideration of ways to address—i.e., avoid or reduce—those
1 77
impacts.
In the Council for Environmental Quality (CEQ) regulations implementing NEPA, the
term "cumulative effects" is defined as:
effects on the environment that result from the incremental effects of the action when added
to the effects of other past, present, and reasonably foreseeable actions regardless of what
agency (Federal or non-Federal) or person undertakes such other actions. Cumulative
effects can result from individually minor but collectively significant actions taking place
over a period of time.178
The broader term "effects" is defined as including "ecological (such as the effects on natural
resources and on the components, structures, and functioning of affected ecosystems), aesthetic,
historic, cultural, economic, social, or health, whether direct, indirect, or cumulative."179
Accordingly, for a given agency action and depending on the context, NEPA analysis may
readily encompass the combined exposures to various stressors or have a more specific scope.180
Disclosure and consideration of the effects of past, present, and reasonably foreseeable
actions to account for baseline burdens on communities with environmental justice concerns and
other underserved communities—grounded in meaningful input from those communities—
allows agencies and the public to be more fully informed about the impacts from a proposed
action, including the degree to which affected communities may be more susceptible to those
impacts. Appropriately broad impact assessment and community input, in turn, should sharpen
consideration of alternatives and mitigation, enabling decision-makers to reckon more
transparently with the cumulative nature of environmental injustice and inequity.
175 42 U.S.C. §§ 4321-4370h.
176 42 U.S.C. § 4331.
177 Some states' environmental review laws also require consideration of cumulative impacts. See, e.g.,
Massachusetts Environmental Policy Act, 301 Mass. Code Regs. § 11.07(6)(h); California Environmental Quality
Act implementing regulations, Cal. Code Regs tit. 14, § 15355.
178 40 C.F.R. § 1508.1(g)(3).
179 40 C.F.R. § 1508.1(g)(4).
180 See supra INTRODUCTION.
40
-------
II. EPA NEPA Compliance
Because of statutory and judicially-created exemptions, NEPA generally applies to only a
limited number of EPA actions.181 However, when NEPA applies to an EPA action and the
Agency either applies a categorical exclusion (CE), or prepares an environmental assessment
(EA) or an environmental impact statement (EIS). The CEQ NEPA regulations and detailed EPA
EJ-NEPA guidance182 explicitly call for the Agency to examine not only the direct and indirect
effects of the EPA action on communities with environmental justice concerns but also the
cumulative impacts of the action when added to other past, present, and reasonably foreseeable
future activities (federal and non-federal). This should include climate-related cumulative
impacts on communities with environmental justice concerns.183 In addition, EPA considers
cumulative impacts when determining whether an action that would typically fall under a CE
should instead, because of cumulative impacts, be subject to an EA or EIS.184 EPA may also
voluntarily prepare detailed EISs or brief EAs, as appropriate, for its NEPA-exempt actions
under its "Statement of Policy for Voluntary Preparation of National Environmental Policy Act
Documents."185
Detailed CEQ environmental justice guidance and the presidential memo186
accompanying E.O. 12898 similarly make clear that EPA NEPA documents should disclose and
consider the impact of EPA's proposed actions in the context of the cumulative impacts,
including the combined exposure to various stressors as appropriate, on communities with
environmental justice concerns. Further, the breadth of this authority encompasses consideration
of equity issues in a cumulative impact context as well, where appropriate, e.g., impacts on
181 See 40 C.F.R. § 6.101; see also 40 C.F.R. § 35.10010 (applying NEPA to EPA actions under the Water
Infrastructure Finance and Innovation Act), 15 C.F.R. § 990.23 (applying NEPA to restoration actions undertaken
under the Oil Pollution Act).
182 Environmental Justice and National Environmental Policy Act, EPA,
https://www.epa.gov/environmentaijnstice/environ.mental-jnstice-and-nationai-environ.mentai-policy-act: EPA,
Final Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance
Analyses, at 16-18 (Apr. 1996), https://www.epa.gov/sites/defaiitt/fites/2014-
08/documents/ei guidance nepa epa0498.pdf.
183 87 Fed. Reg. 23,453, 23,469-70 (Apr. 20, 2022) (to be codified at 40 C.F.R. § 1508.1),
https://www.govinfo.gov/content/pkg/FR-2022-04-20/pdf/2022-08288.pdf.
184 See 40 C.F.R. § 6.204(b)(1).
185 See Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act (NEPA)
Documents, 63 Fed. Reg. 58,045 (Oct. 29, 1998), https://www.govinfo.gov/eontent/pkg/FR-1998~10-29/pdf/98~
29019.pdf. Notably, the criteria for doing so include "the potential for using an EA or an EIS to comprehensively
address large-scale ecological impacts, particularly cumulative impacts [or] to facilitate analysis of environmental
justice issues . . . and to expand public involvement." See id. at 58,046 (emphasis added).
186 See, e.g., Presidential Memorandum on Environmental Justice (Feb. 11, 1994),
https://www.govinfo.gov/content/pkg/WCPD-1994-02-14/pdf/WCPD-1994-02-14-Pg279.pdf. The memorandum
also indicates that "[mjitigation measures outlined or analyzed in an environmental assessment, environmental
impact statement, or record of decision, whenever feasible, should address significant and adverse environmental
effects of proposed Federal actions on minority communities and low-income communities." See also, CEQ,
Environmental Justice: Guidance Under the National Environmental Policy Act (1997),
https://www.epa.gov/sites/default/files/2015-02/documents/ei guidance nepa ceal297.pdf: EPA, Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses (1998),
https://www.epa.gOv/sites/de:fanlt/files/2015-02/docnments/ei guidance nepa epa0498.pdf.
41
-------
underserved rural communities or persons with disabilities.187 Whether EPA can take action to
address cumulative impacts from a given proposed project depends on EPA's underlying
statutory and regulatory authority triggering the NEPA review and would be considered on a
case-by-case basis.
III. EPA's CAA Section 309 Review of Federal Agency EAs and EISs
In addition to its NEPA compliance for its own actions, EPA is directed under section
309(a) of the CAA to review and comment on the environmental impacts of proposed major
actions of other federal agencies.188 Moreover, pursuant to section 309(b), if the Administrator
determines, as a result of EPA's review, that a federal action is unsatisfactory from the
standpoint of public health, welfare, or environmental quality, the Administrator must publish
the determination and refer the matter to CEQ for resolution.189 EPA's review under section 309
is broad and provides an opportunity for EPA to ensure that cumulative impacts, factoring in the
combined exposures to stressors in a community, are adequately disclosed and considered across
the hundreds of EISs issued every year across the federal government.190 This is consistent with
the President's memorandum accompanying Executive Order 12898 that directs EPA when
conducting section 309 reviews to "ensure that the involved agency has fully analyzed
environmental effects on minority communities and low-income communities, including human
health, social, and economic effects."191 Doing so involves EPA evaluating and disclosing in its
publicly-available section 309 comment letters whether the potential for disproportionate impacts
and means to avoid or reduce them have been fully disclosed and analyzed—e.g., through
analysis of cumulative burdens to communities, identification of reasonable alternatives to avoid
or reduce any disproportionate impacts, and disclosure of available practicable mitigation
measures to avoid, minimize or compensate for adverse impacts. EPA may also use the section
309 review function to evaluate whether the involved agency not only identified disproportionate
impacts, including cumulative impacts, but also whether the impacts have been satisfactorily
addressed, and to make recommendations to federal agencies on how best to identify and address
any such impacts.192
NEPA and CAA section 309 create several additional important roles for EPA in the
NEPA process that can help ensure NEPA reviews for proposed federal agency actions consider
187 E.O. 13985, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-
advancing-racial-eanitv-and-snpport-for-nnderserved-commnn.ities-throngh-the-federal-govern.ment/.
188 42 U.S.C. § 7609(1970).
189 See CEQ's regulations at 40 C.F.R. part 1504 for the procedures on referrals.
190 See CEQ, Report: EIS Timelines (2010-2018) at 1 (June 12, 2020) (showing that 1,276 final EISs were
published in the Federal Register from 2010 through 2018), https://ceq.doe.gov/docs/nepa-
practice/CEO EIS Timeline Report 20 pdf.
191 Presidential Memorandum for the Heads of All Departments and Agencies on Executive Order 12898 on Federal
Actions to Address Environmental Justice In Minority Populations and Low-Income Populations (Feb. 11, 1994),
https://www.epa.gov/sites/default/files/2015-02/documents/clinton memo 12898.pdf.
192 See EPA, POLICY AND PROCEDURES FOR THE REVIEW OF FEDERAL ACTIONS IMPACTING THE ENVIRONMENT
(1984), Iilfe/^
08/documents/policv and procedures for the review of federal actions impacting the environment.pdf. See
also 40 C.F.R. § 1504 (CEQ can resolve referrals in a range of ways, including facilitating discussion or negotiation
between EPA and the relevant other agency, reaching a determination that the issue is or is not a matter of national
importance, publishing its findings on the matter, or ultimately submitting the referral and the response together with
the Council's recommendation to the President for action).
42
-------
cumulative impacts on communities with environmental justice concerns. As emphasized in a
2022 EPA policy memorandum, EPA should generally:
[E]ngage early with federal agencies in the scoping and drafting of their NEPA documents
to help ensure the meaningful involvement of communities with environmental justice
concerns, reduce adverse environmental impacts, consider alternatives, and improve
environmental outcomes. This review responsibility places EPA in a unique position to
help assist and encourage federal agencies to fulfill the requirements of NEPA, including
as they align with the letter and spirit of the executive orders related to climate,
environmental justice, and equity.193
EPA can also make use of tools like EJScreen194 to identify and examine potential
cumulative impact on communities with environmental justice concerns. In its 309 review, EPA
can also work with Federal agencies to ensure they provide opportunities for meaningful
involvement of communities potentially impacted by agency actions, thereby expanding
opportunity for communities to raise any cumulative impacts to agencies' attention.195 Under
CEQ regulations, in addition to involving EPA in the preparation of EISs as a "cooperating
agency," federal agencies should also be routinely providing EPA opportunities to be involved in
the preparation of EAs, to the extent practicable, which provides yet another opportunity for EPA
to bring attention to issues related to cumulative impacts, where appropriate.196
CEQ's 1997 guidance, Environmental Justice: Guidance Under the National
Environmental Policy Act also informs EPA's section 309 reviews. The CEQ guidance includes
general principles for how to identify and address environmental justice issues under NEPA, a
number of which relate specifically to cumulative impacts. The guidance provides that when
determining whether there is disproportionally high and adverse human health or environmental
effects on environmental justice populations, agencies should:
• "consider relevant public health and industry data concerning the potential for multiple or
cumulative exposures to human health or environmental hazards in the affected
population and historical patterns of exposure to environmental hazards, to the extent
such information is reasonably available. . . . Agencies should consider these multiple, or
cumulative effects, even if certain effects are not within the control or subject to the
discretion of the agency proposing the action."
193 Memorandum from Vicki Arroyo, Assoc. Admin., EPA Office of Policy, Addressing Climate Change and
Environmental Justice through Reviews Conducted Pursuant to the National Environmental Policy Act and Section
309 of the Clean Air Act (April 26, 2022) (emphasis added), https://www.epa.gov/svstem/fites/doeiiinents/2022~
05/EPA%20Policv%20Memo%20Intergration%20of%20EJ%20and%20Climate%20Change%20into%20NEPA%2
0309%20review%204-26-2022.pdf.
194 What is EJScreen?, EPA, https://www.epa.gov/eiscreen/what-eiscreen.
195 See EPA, FINAL GUIDANCE For INCORPORATING ENVIRONMENTAL JUSTICE CONCERNS IN EPA'S NEPA
Compliance Analyses (1998), https://www.epa.gov/sites/default/files/2014-
08/doeuments/ei guidance nepa epa0498.pdf (providing that, generally, with regard to community representation,
EPA practitioners should "[a]ssure meaningful community representation in the process. Be aware of the diverse
constituencies within any particular community when they seek community representation. Endeavor to have
complete representation of the community as a whole and encourage community participation as early as possible if
it is to be meaningful.").
196 40 C.F.R. § 1501.5(e).
43
-------
• "recognize the interrelated cultural, social, occupational, historical, or economic factors
that may amplify the natural and physical environmental effects of the proposed agency
action. These factors should include the physical sensitivity of the community or
population to particular impacts; the effect of any disruption on the community structure
associated with the proposed action; and the nature and degree of impact on the physical
and social structure of the community."197
Taken together, NEPA and the CAA section 309 review process provide EPA with broad
authority to advance environmental justice by helping to ensure that cumulative impacts on
communities with environmental justice concerns, and other underserved communities,198 are
considered and addressed in EPA or federal agency decisions. In addition, the policies and
guidance discussed in this chapter provide robust direction and clarity for EPA practitioners to
consider cumulative impacts as they implement EPA's environmental review authorities to
advance environmental justice.
197 CEQ, Environmental Justice: Guidance Under the National Environmental Policy Act at 9 (1997),
https://www.epa.gov/sites/default/files/2015-02/documents/ei guidance nepaeetil297.pdf.
198 As emphasized in the Introduction, supra, generally, where EPA has authority to address cumulative impacts to
communities with environmental justice concerns, EPA is also likely to have authority to address impacts on
underserved communities, consistent with Executive Order 13985.
44
-------
CHAPTER SIX: CIVIL RIGHTS IN FEDERAL ASSISTANCE
PROGRAMS
EPA enforces Title VI of the Civil Rights Act of 1964199 and other federal civil rights
laws that, together, prohibit discrimination on the basis of race, color, national origin (including
limited-English proficiency (LEP)), disability, sex, age, and retaliation/intimidation in programs
or activities that receive federal financial assistance from EPA.200 As implemented by EPA's
nondiscrimination regulations,201 these laws create affirmative legal obligations and prohibit
intentional discrimination as well as practices that have a discriminatory effect, regardless of
intent.
The Supreme Court has explained that disparate impact claims concern practices that
have a '"disproportionately adverse effect on [protected classes]' and are otherwise unjustified
by a legitimate rationale."202 EPA has broad enforcement authority to ensure nondiscrimination
in the programs or activities of recipients of federal financial assistance.203 For example, one
specific prohibition under EPA's nondiscrimination regulation provides:
A recipient shall not use criteria or methods of administering its program or activity which
have the effect of subjecting individuals to discrimination because of their race, color,
national origin, or sex, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program or activity with respect to individuals of
a particular race, color, national origin, or sex.204
This prohibition against discriminatory "effects" covers the overall effect of a recipient's
activities—including cumulative impacts from both chemical and non-chemical stressors.205
Accordingly, EPA has the authority to consider cumulative impacts when evaluating whether
there is an adverse impact from a recipient's policy or practice.206 That is, EPA may consider
199 For a synopsis of the legislative history and purpose of Title VI, see the Department of Justice Title VI Legal
Manual at Section II, https://www.instice.gov/crt/fcs/T6mannal2.
200 See 40 C.F.R pt. 7; Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d to 2000d-7); Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. § 794); Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et
seq.y, Section 13 of the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 § 13, 86 Stat.
903 (codified as amended at 33 U.S.C. § 1251)); Age Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.y, 40
C.F.R. pts. 5, 7.
201 40 C.F.R. pts. 5, 7.
202 Texas Dep't of Hous. & Cmty. Affairs v. Inclusive Communities, Inc., 135 S. Ct. 2507, 2513 (2015) (quoting
Ricci v. DeStefano, 557 U.S. 557, 577 (2009)).
203 This chapter of the Addendum discusses EPA's legal authority. For a current list of external civil rights policy
and guidance for recipients of EPA financial assistance, see https://www.epa.gov/external-civil-rights/external-civil-
rights-guidance.
204 40 C.F.R. §7.135.
205 See, e.g., S. Camden Citizens in Action v. N.J. Dep't of Env't Prot., 145 F. Supp. 2d 446, modified and
supplemented by 145 F. Supp. 2d 505 (D.N.J. 2001), rev'd on other grounds, 274 F.3d 771 (3d Cir. 2001).
206 See, e.g., Genesee Letter of Findings from Lilian S. Dorka, Dir., Office of External Civil Rights Compliance,
EPA Office of General Counsel, to Heidi Grether, Dir., Mich. Dep't of Env't Quality at 19-23, EPA File No. 01R-
94-R5 (Jan. 19, 2017) (consideration of cumulative air toxics data from point sources countywide) [hereinafter
Genesee Letter of Findings], https://www.epa.gov/sites/default/files/2017-01/documents/final-genesee-complaint-
letter-to-director-grether-l-19-2017.pdf. See also S. Camden Citizens in Action v. N.J. Dep't of Env't. Protec., 145
F. Supp. 2d 446, 490 (D.N.J. 2001), modified and supplemented by 145 F. Supp. 2d 505 (D.N.J. 2001), rev'd on
45
-------
whether any adverse impact caused by the policy or practice—and borne disproportionately by
persons on the basis of race, color, or national origin (including LEP status)—is even greater
considering cumulative impacts from other stressors.
EPA has exercised this broad authority in its external civil rights investigations. An
example illustrating the consideration of cumulative impacts was the Office of External Civil
Rights Compliance's (OECRC's) investigation of whether the Michigan Department of
Environmental Quality violated Title VI of the Civil Rights Act of 1964 when it granted an air
use permit to the Genessee Power Station (GPS) in Flint, Michigan.207 Specifically, EPA
investigated whether African Americans would be subjected to adverse disparate health impacts
from cumulative air pollution emissions. EPA considered modeling and analyses of health
impacts from air emissions that included cumulative county-wide direct inhalation air toxics
from point sources and air toxics emissions from GPS and similar facilities statewide.
EPA's consideration of cumulative impacts in Title VI investigations is consistent with
case law and the Title VI investigations of sister federal agencies.208 For instance, in response to
a Title VI complaint, the Federal Highway Administration (FHWA) found in 2017 that the Texas
Department of Transportation (TDOT) discriminated based on race, color, and national origin in
violation of Title VI due to disparate impacts including adverse economic, social, and
environmental effects arising from TDOT's selection of the location for the Corpus Christi
Harbor Bridge Project.209 Specifically, when comparing severity of adverse impacts arising from
TDOT's location selection to impacts of the four build alternatives, FHWA stated that, "specific
demographics, historical impacts, cumulative impacts, Section 4(f), connectivity, cohesion,
business impact, psychological and physical barriers, access, public services, among other
factors, must be assessed between the different build alternatives."210 To resolve the complaint,
FHWA and TDOT reached a voluntary resolution agreement which included mitigation of the
impacts of the bridge construction such as a relocation program for homeowners and renters;
access to a relocation counselor; coverage of moving costs; and financial assistance for
neighborhood churches, small businesses, and owners of rental properties, among other
other grounds, 274 F.3d 111 (3d Cir. 2001) (interpreting EPA methodology as requiring consideration of the totality
of the circumstances and cumulative environmental burdens and finding that plaintiffs demonstrated that permitting
and operation of a facility was likely to have adverse impacts in context of "current health conditions and existing
environmental burdens" in the community).
207 Genesee Letter of Findings, supra note 206.
208 For additional examples of cumulative impacts considered in the Title VI context, see Coalition of Concerned
Citizens Against 1-670 v. Damian, 608 F. Supp. 110, 127 (S.D. Ohio 1984) (holding that disruptions and other
impacts of planned highway construction would negatively affect communities of color living in the area under
construction); S. Camden Citizens in Action v. N.J. Dep't of Env't Prot., 145 F. Supp. 2d 446, 490, 505, modified
and supplemented by 145 F. Supp. 2d 505 (D.N.J. 2001), rev'd on other grounds, 274 F.3d 771 (3d Cir. 2001)
(granting preliminary injunction and vacating air permits upon finding that plaintiffs established sufficient potential
harm to their health resulting from the recipient's issuance of air pollution permits for a cement processing facility,
noting that the operation of the facility would "adversely affect [the plaintiffs'] health to a degree that meets the
standard of 'adversity' under Title VI").
209 Letter from Irene Rico, Assoc. Admin, for Civil Rights, EPA, to James Bass, Exec. Dir., Tex. Dep't of Transp.,
(Jan. 18, 2017) (Letter of Finding HCR-20 DOT # 2015-0124),
https://www.fliwa.dot.gov/civilrights/prograins/docs/title vi compl dec/20.1.5-0.124.pdf.
210 Id. at 23 (emphasis added).
46
-------
options.211 TDOT also entered into agreements with local government agencies to facilitate its
compliance with the settlement agreement.212
211 See Voluntary Resolution Agreement between the Fed. Highway Admin. & Tex. Dep't of Transp., (Dec. 14,
2015),
https://www.fliwa.dot.gov/civilrights/prograins/docs/titlevi eornpt dec/Vo lunta rvReso lut io nAgreement.pdf:
Letter from the Tex. Dep't of Transp. to the Fed. Highway Admin. Re: the Voluntary Resolution Agreement of
December 17, 2015—US181 Harbor Bridge Replacement Project in Corpus Christi, Texas (Feb. 1, 2017),
https://www.fliwa.dot.gov/civilrights/programs/docs/title vi compl dec/harborbridgeagreement.pdf.
212 Id.
47
-------
GLOSSARY OF SELECTED ABBREVIATIONS AND
ACRONYMS
A
AA
ACP
AFO
AQS
AST
AT SDR
B
BACT
C
CAA
CE
CEA
CEQ
CERCLA
CFR
CWA
E
EA
EAB
ECRCO
EIS
EJ
EO
EPA
EPCRA
F
FFDCA
FHWA
FIFRA
G
GACT
H
HA
HAP
HRS
Assistant Administrator
Area Contingency Plan
Animal Feeding Operation
Air Quality System
Aboveground Storage Tanks
Agency for Toxic Substances and Disease Registry
Best Available Control Technology
Clean Air Act
Categorical Exclusion
Cumulative Effects Analysis
Council on Environmental Quality
Comprehensive Environmental Response, Compensation, and Liability Act
Code of Federal Regulations
Clean Water Act
Environmental Assessment
Environmental Appeals Board
External Civil Rights Compliance Office
Environmental Impact Statement
Environmental Justice
Executive Order
U.S. Environmental Protection Agency
Emergency Planning and Community Right-to-Know Act
Federal Food, Drug, and Cosmetic Act
Federal Highway Administration
Federal Insecticide, Fungicide, and Rodenticide Act
Generally Available Control Technology
Health Advisory
Hazardous Air Pollutants
Hazard Ranking System
48
-------
I
ISE
ISR
L
LEP
LUST
M
MCLGs
MS4
N
NAAQS
NCP
NEJAC
NEPA
NESHAP
NOI
NPDES
NPL
NSR
O
OGC
ORC
ORD
P
PESS
PGP
PSD
R
RA
RCRA
ROD
RSC
S
SDWA
SIPs
ss
SSRA
Imminent and Substantial Endangerment
In-Situ Recovery
Limited English Proficiency
Leaking Underground Storage Tank
Maximum Contaminant Level Goals
Municipal Separate Storm Sewer System
National Ambient Air Quality Standards
National [Oil and Hazardous Substances Pollution] Contingency Plan
National Environmental Justice Advisory Council
National Environmental Policy Act
National Emission Standards for Hazardous Air Pollutants
Notice of Intent
National Pollutant Discharge Elimination System
National Priorities List
New Source Review
Office of General Counsel
Office of Regional Counsel
Office of Research and Development
Potentially Exposed or Susceptible Subpopulations
Pesticide General Permit
Prevention of Significant Deterioration
Regional Administrator
Resource Conservation and Recovery Act
Record of Decision
Relative Source Contribution
Safe Drinking Water Act
State Implementation Plans
Suspended Solids
Site-Specific Risk Assessment
49
-------
T
TDOT
TMDLs
TSCA
U
UIC
UST
w
WQS
Texas Department of Transportation
Total Maximum Daily Loads
Toxic Substances Control Act
Underground Injection Control
Underground Storage Tank
Water Quality Standards
50
------- |