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Volume XIII, Number 33

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U.S. EPA Releases Cumulative Impacts Addendum to Guidance on Legal Tools to Advance Environmental Justice

On 11 January 2023, EPA‘s Office of the General Counsel released the Cumulative Impacts Addendum (the Addendum). This 52-page document provides the first-ever collection of examples of environmental and other legal authorities that the EPA can use to identify and address cumulative impacts through a range of actions including permitting, cleanup, emergency response, and grants in communities with environmental justice concerns and other disadvantaged populations. 

Cumulative impacts refer to the analysis, characterization, and possible quantification of the combined risks to human health or the environment from multiple agents or stressors. The Addendum builds on EPA’s Legal Tools to Advance Environmental Justice (the Legal Tools) released in May 2022, which addresses a vast array of environmental statutory and regulatory regimes for the agency to ramp up its environmental justice efforts. Like the guidance, the Addendum covers regulatory mechanisms across a range of EPA programs, including air, water, waste management and emergency response, pesticides and toxics, as well as environmental review programs, and EPA’s enforcement of civil rights in financial assistance programs. According to the Addendum, EPA’s authority comes from federal laws including the Clean Air Act, Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Resource Conservation and Recovery Act. 

To give an example of what this Addendum includes, it proposes that a cumulative impacts analysis can be conducted as part of an application review for permitting programs such as New Source Review, Title V, Clean Water Action Section 404, and National Pollutant Discharge Elimination System (NPDES) permits, among others. As another example, the Addendum recommends that EPA prioritize and derive air and hazardous waste standards, as well as recommended water quality criteria, keeping cumulative impacts in mind. Whether and how the EPA utilizes these and other mechanisms to address cumulative impacts will depend on the specific statutory, regulatory, policy, scientific, and factual contexts at issue, and the resources available to the EPA.

As the EPA continues to accelerate the integration of environmental justice into policies, programs, and activities, we can expect the authorities in the Legal Tools and Addendum will be key in that endeavor. Given these developments, permitted facilities should be prepared to not only assess the impacts from their direct emissions, but also the impacts from their neighbors and surrounding community. 

Copyright 2023 K & L GatesNational Law Review, Volume XIII, Number 24
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About this Author

Brian S. Montag Attorney KL Gates Environmental Law Newark
Partner

Brian Montag is a partner in the firm’s Newark office and practice group coordinator for the firm's global environment, land and natural resources practice group. He represents clients in regulatory, enforcement, and litigation matters in various industries and manufacturing sectors, including construction, quarry, asphalt, cement, telecommunications, glass, paper, and chemical operations. Brian has served as outside counsel to leading State and Federal trade and business associations. He also has extensive experience representing clients in administrative, State and...

973-848-4044
Gail H. Conenello Environmental Attorney K&L Gates Newark
Partner

Gail Conenello’s environmental practice is focused in the areas of CERCLA and Spill Act remediations and liability actions, private cost recovery actions, environmental justice actions, RCRA, environmental insurance coverage actions, due diligence for corporate and real estate transactions, and various environmental remediation, permitting, compliance, regulatory and enforcement matters.

Notably, Gail has been on the cutting edge of issues involving site remediation and environmental justice. She has spoken before various professional and trade...

973-848-4048
Cliff L. Rothenstein, KL Gates Law Firm, Public Policy Attorney
Government Affairs Advisor

Cliff Rothenstein has more than 30 years of congressional and federal executive experience. Prior to joining K&L Gates, he served as Director of Legislative Affairs for the Federal Highway Administration (FHWA). In this capacity, Mr. Rothenstein worked on a daily basis with the FHWA Administrator, Deputy Administrator, and Deputy Secretary of the U.S. Department of Transportation (DOT). During Mr. Rothenstein’s tenure at FHWA, he led the development and advocacy efforts on legislation to reauthorize the nation’s surface transportation law where he played a...

202-778-9381
Malory M. Pascarella Environmental Law Attorney KL Gates Newark
Associate

Malory Pascarella is an associate at the firm’s Newark office. She is a member of the environment, land and natural resources practice group. Malory engages in regulatory compliance work, as well as related environmental litigation, focusing her practice on CERCLA, the Clean Air Act, and the Resource Conservation and Recovery Act. She also assists in representing clients before state environmental agencies as well as the United States Environmental Protection Agency, regarding various compliance issues. At K&L Gates, Malory has also counseled clients on environmental...

973-848-4096
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