The US Environmental Protection Agency (EPA) Wednesday released the Cumulative Impacts Addendum to provide legal guidance on addressing how pollution and other factors cumulatively impact the health and welfare of vulnerable groups to a disproportionate extent over time. The 52-page document details several statutes and regulations which could allow accounting for the lived experience of underserved communities and those with environmental justice concerns (including communities of color, low-income communities, and indigenous peoples) in various EPA activities such as standard-setting, permitting, planning and initiating judicial action.
The Cumulative Impacts Addendum builds on the Legal Tools to Advance Environmental Justice (EJ Tools) released by the EPA in May 2022. The Addendum deals with how cumulative impact can be considered under the programs referred to in the EJ Tools, namely programs under the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA) and Toxic Substances Control Act.
The Addendum notes that the EPA may be able to account for cumulative impact where it has the authority to consider public health and welfare. For instance, in reviewing air quality standards, the EPA may assess “multi-pathway exposure” to lead (such as inhalation and ingestion, and recent and previous emissions), as it did in October 2022, refusing to extend the deadline for attaining the standards in Houston since certain areas were already overburdened by traffic volume and more pre-1960 houses (which have lead paint). Under Section 303 of the CAA, the EPA is empowered to address “imminent and substantive endangerment” on a cumulative basis, that is, even if a single source may pose a lesser risk.
Likewise, the Addendum notes, Section 303(d) of the CWA allows states, tribes and the EPA to consider cumulative impacts: for instance, regulators could allocate lesser pollutant loads in discharges of contaminated water to communities already suffering from cumulative impacts. Although most states, and not the EPA, are authorized to carry out their own hazardous waste programs, the EPA can still comment on permits issued by state authorities and require them to take certain factors such as unique exposure pathways (subsistence fishery) and sensitivity (age, pregnancy) into account under the RCRA.
The Addendum also covers the Superfund policy, under which, for example, a Superfund site in Portsmouth conducted a health workshop for community residents; the Federal Insecticide, Fungicide and Rodenticide Act, which allowed the EPA to recognize how the pesticide lindane disproportionately affects Indigenous populations who rely on subsistence diets; the Federal Food, Drug, and Cosmetic Act; and Title VI of the Civil Rights Act which prohibits discrimination in programs receiving EPA financial assistance.
EPA Administrator Michael Regan stated the Addendum was part of a commitment to equitably protect all communities, including those “living with the legacy of structural racism.” Environmental justice is an important component of President Joe Biden’s administrative focus and is the subject of the ambitious Executive Order 14008, signed in his first week in office.
