Environmental Justice Update: EPA Publishes Cumulative Risk Assessment Comments

In June, EPA solicited comments on its draft Cumulative Risk Assessment (CRA) Guidelines for Planning and Problem Formulation. These guidelines “lay the foundation for considering current and anticipated future cumulative risk analytical methods.” Top-line notes on comments to the CRA Guidelines:

• Guidelines like these are intended to be deployed by risk managers and these guidelines specifically are intended to help risk managers plan strategies. More prescriptive planning, for instance, creating one risk-focused toolkit that can address all risk issues – some of which are quantitative and some of which may be more qualitative – is certainly impractical and may be impossible.
• “Cumulative impact” EJ issues remain in flux. Regulators clearly have the discretion to prioritize enforcement in EJ communities. But, at least at the federal level, regulatory usage of “cumulative impact” data remains unclear. One can find instances in the first half of the Biden Administration in which regulators used EJ concerns to weigh in on permitting issues to address perceived cumulative impacts. (Our prior discussion of this issue is here.) Nothing in these guidelines make muscular use of other EJ authorities more or less likely.
• As the comments below illustrate, simple solutions to cumulative risk issues at the federal level are probably hard to come by. As many commentators indicate, “cumulative risk” issues raise legal, technical, and process-related concerns.

We last summarized regulatory comments on the Federal Trade Commission’s “Green Guides” in May. (See here.) While regulatory comments not authoritative, they can provide insight into the current EJ regulatory state-of-play.

“Cumulative Risk” – What It Is and Why It Matters

What is “cumulative risk” related to “environmental justice”? EPA defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” “Cumulative risk assessment,” in turn, is “an analytical approach to understanding the health effects exposure to multiple environmental stressors and other stressors that could introduce vulnerabilities in the affected population.”

In layman’s terms, cumulative risk assessment is a scientific process of understanding how new, individual stressors might impact pre-existing issues affecting a community. Two recent examples:

• Shortly after taking office, frustrated with the planned relocation of a metal recycling facility from Chicago’s Lincoln Park neighborhood to a neighborhood on the southeast side of Chicago where similar businesses were clustered, federal regulators issued a final finding alleging that Chicago had discriminated on the basis of race and national origin in violation of the US Department of Housing and Urban Development (HUD) regulations and federal civil rights laws by “causing and facilitating the relocation of a large metal recycling facility” from a majority white neighborhood to a majority Black and Hispanic neighborhood and through a broader policy of “constraining industrial and other polluting land uses” to similar neighborhoods. The finding, if left unaddressed, implicates future HUD funding and Chicago eventually entered into an agreement with federal regulators to conduct a “cumulative impact assessment” describing “how environmental burdens, health conditions, and social stressors vary across Chicago, and identify neighborhoods that experience the greatest cumulative impacts.” (For more on this, see here; the just-released cumulative impact assessment is available here.)
• In Louisiana, regulators, building on longstanding community complaints in an area referred to as “cancer alley,” used cumulative impact-style arguments in an attempt to challenge operations at facilities including a chloroprene plant and other refineries. (For our latest on this, see here.)

Notably, the Chicago and Louisiana issues both occurred at sites in communities where local opposition to projects was already entrenched. While regulators used data to support their claims, the data they had in-hand was a mix of regulatory data, community-provided narratives, and other quantitative and qualitative data gleaned from various sources.

Responses to EPA’s Request for Comments

With this as background, below we summarize comments from various perspectives to the proposed guidelines. The comments raise legal, technical, and process-focused issues with the guidelines.

Legal Issues

In prior posts, we have emphasized that EJ issues sometimes are round pegs in square holes afforded by federal statutes. (See here and here.) Given this fact, how EJ is appropriately implemented from a governance perspective animated many comments:

• The Texas Commission on Environmental Quality (TCEQ) highlighted the guidelines’ acknowledgment of “concerns about limited statutory authority to use CRAs in decision making.” The guidelines “do not fully address how EPA plans to use CRAs for decision making in media-specific program areas where CRAs are not mandated by statute or regulation.” To the extent that “EPA intends that state agencies consider CRAs to inform states’ decisions regarding permits and other regulated activities when CRAs are not expressly a statutory or regulatory requirement … then EPA should conduct a rulemaking to provide states with a solid regulatory framework for considering CRAs in a manner that supports appropriate, consistent decision making.” Groups like US Chamber of Commerce echoed this call, noting the importance of aligning any CRA with the “he scope and nature of its analyses that arise from the legal frameworks that govern particular analyses.”
• A group of New Jersey non-governmental organizations (NGOs) took the opposite view, advocating for a CRA process which looked like the New Jersey process, which was established by statute. Under this process, applicants for permits in EJ communities would have to demonstrate that they applied a “precautionary principal” to operations and that future operations would not compound preexisting conditions.   

Technical Issues

Other comments focused on technical questions particular to EJ:

• The American Chemistry Council (ACC) commented that further research into CRA approaches was needed because “regulatory and scientific communities have little experience with assessing multiple, unrelated stressors … and cumulative risk assessments for chemicals and other stressors would rely heavily on assumptions” due to lack of scientific data.
• The Program on Reproductive Health and the Environment (PRHE) commented that the Guidelines used a flawed “tiered” approach to scoring in a desire to remove uncertainty from scoring that would likely result “in exclusion of nonchemical stressors from CRAs.”
• The American Petroleum Institute (API) emphasizes the need to use concrete examples and specific implementation directives as part of the CRA process. The draft guidelines, in API’s view, fails to provide clear triggers for incorporating a CRA into an EJ-focused review. Additionally, establishing terminological clarity between various EPA methodologies and e
• In contrast, a group of environmental NGOs including WE ACT for Environmental Justice commented noted that establishing a “concrete framework” to establish CRA at the federal level is fundamental to protecting vulnerable communities and that there is a need to move toward a CRA process which can combine qualitative and quantitative approaches – as has happened in states like California, New Jersey, and Minnesota – can be used to generate a “useful, practical framework.”

Process Issues

Finally, some comments focused on EPA’s process for soliciting comments itself. Given that broadening public participation in the regulatory process has been a major focus of the Biden Administration, see here, it is unsurprising that increased public engagement was a focus of many comments:

• A New Mexico NGO commented that cumulative risk is a real problem and – among other issues – EPA’s methods for soliciting comment to the framework, reliant on the Federal Register and electronic media deprived many people in EJ communities of the opportunity to participate in the process. This issue was compounded by EPA’s request for information issued “after many important decisions had already been made” regarding EPA’s approach to evaluating cumulative risk. Cumulative risk assessment, in this group’s view, should be locally led. This view echoes comments provided by other environmental NGOs stressing the need for local involvement.
• PRHE likewise faulted the guidelines for relying on community members to generate sufficient data to initiate a CRA because (a) this placed a burden that some communities could not meet; and (b) that certain non-chemical stressors like pre-existing disease or food insecurity could make individuals more susceptible to harm from chemical exposures. EPA could use chemical data already generated by releases reported to the Toxic Releases Inventory (TRI), the National Emissions Inventory, or related to facilities subject to EPA’s Risk Management Plan Rule to generate data without relying on community collection. PRHE believes that the prevalence of multiple non-chemical stressors should be sufficient to cause heightened “cumulative impacts” analysis.
• From the industry perspective, ACC provided proposals for increased stakeholder engagement. ACC’s call was echoed groups like the American Water Works Association, which noted that the last “expert discussion” on CRA issues was in 2013, and that the public review period is “the only opportunity” offered to stakeholders for engagement.  

What’s Next?

We expect that EPA will factor received comments into a final Guidelines document to be issued in the near future.

Members of the firm’s Environmental, Energy & Cleantech, and AgTech groups regularly monitor state and federal administrative activity with broad implications to the regulated community. Contact us with questions about how these efforts or programs affect you.