On November 21, 2024, the U.S. Environmental Protection Agency (EPA) released a draft Interim Framework for Advancing Consideration of Cumulative Impacts (Interim Framework). 89 Fed. Reg. 92125. According to EPA, the Interim Framework provides a shared reference point for EPA programs and regions as they determine when and how to analyze and consider cumulative impacts. EPA states that Agency programs will incorporate the Interim Framework “into their processes and programs, as appropriate, feasible, and consistent with applicable law, in ways that reflect programmatic and context-specific needs.” EPA will consider public input for potential incorporation into the Interim Framework. EPA notes that public input will also inform its expanding knowledge, along with results from scientific research and program evaluation. Comments on the Interim Framework are due February 19, 2025.

EPA Principles for Considering Cumulative Impacts

The Interim Framework lists the following principles for considering cumulative impacts:

• Center cumulative impacts work on improving human health, quality of life, and the environment in all communities.
• Focus on the disproportionate and adverse burden of cumulative impacts.
• Apply a fit-for-purpose approach to assessing and addressing cumulative impacts.
• Engage communities and incorporate their lived experience.
• Use available data and information to make decisions and take action.
• Operationalize and integrate ways to consider and address cumulative impacts.

Processes for Considering Cumulative Impacts

The Interim Framework includes the following schematic as a guide to critical phases when cumulative impacts principles can be incorporated into program-specific and cross-program, community-focused processes. According to EPA, “[t]his conceptual model is designed to be general and adaptable to a variety of regulatory and nonregulatory contexts. It is deliberate in cultivating meaningful public and community involvement throughout the work, as appropriate, and emphasizes the use of fit-for-purpose approaches to cumulative impacts assessments to inform EPA decisions.”

Cumulative Impacts Implementation at EPA

The Interim Framework includes examples of actions that EPA has taken or has initiated at this time to integrate the principles of cumulative impacts into its processes. Appendix B of the Interim Framework includes narratives that illustrate EPA and others’ actions that apply the principles of cumulative impacts under various statutory and regulatory authorities. EPA notes that “[a]lthough these early efforts might not consider the full range of chemical and nonchemical stressors or might not have been carried out as formal cumulative impacts assessments, they nonetheless include multiple sources of pollution and, in some cases, multiple pathways of exposure or consideration of social determinants of health in planning and regulatory decisions to consider and address disproportionately impacted communities.” EPA states that it will update Appendix B regularly with additional examples of cumulative impacts pilot projects, case studies, and other actions in the electronic version of the Interim Framework.

Moving Forward

According to the Interim Framework, EPA activities underway include:

• Leadership structure: EPA formed a chartered work group with representatives from all headquarters and regional offices to advance this work and related internal communications and identified executive champions to lead and guide it;
• Performance measures: EPA has developed performance measures per its commitment in the EPA Office of the Inspector General’s 2023 report, “The EPA Needs to Further Refine and Implement Guidance to Address Cumulative Impacts and Disproportionate Health Effects Across Environmental Programs”;
• Cumulative impacts research projects: EPA has over 90 intramural and 30 extramural research projects underway that focus on cumulative impacts. According to EPA, this research builds on more than a decade of work on community-focused science, including discussions with Tribes to explore different cumulative impacts methods (Torso et al., 2023). EPA states that it has proactively engaged the National Academies of Science, Engineering, and Medicine (NASEM) to develop a foundational report, State-of-the-Science and the Future of Cumulative Impact Assessment (NASEM 2024), “to bolster analysis and consideration of cumulative impacts in Agency processes for years to come”; and
• On-the-ground cumulative impacts analyses: EPA states that it has a range of on-the-ground activities, such as those in Chelsea, Massachusetts, North Richmond, California, and Cleveland/Cuyahoga County, Ohio, that are creating opportunities for EPA to advance consideration of cumulative impacts through collaboration.

According to the Interim Framework, EPA will continue to build its capacity to analyze and consider cumulative impacts and to advance the state of the science and the practice. Key next steps include:

• Engaging its partners and co-regulators through outreach, listening sessions, public comment, and consultation;
• Consulting with expert bodies for advice (e.g., National Environmental Justice Advisory Council, Local Government Advisory Council, Tribal Science Council, National Tribal Toxics Council, EPA’s Science Advisory Board, NASEM); and
• Fostering the practice in a cost-effective manner, focusing initially on place-based analysis and decision contexts.

According to the Interim Report, further actions to build capacity are underway in the following areas:

• Training: EPA is developing comprehensive training programs designed to boost staff fluency and proficiency in cumulative impacts. The training modules will range from foundational to advanced levels, providing staff with approaches and tools needed to operationalize cumulative impacts across various programs. EPA national program offices and regions are invited to step forward to pilot this crucial training initiative;
• Funding: EPA has committed to funding the development and implementation of community action to identify, assess, and address multiple, disproportionate, and/or cumulative impacts affecting communities through its Environmental Justice Granting and Collaborative Agreement programs. EPA notes that it has also funded over $50 million in Science to Achieve Results (STAR) grants to build academic-community partnerships to advance consideration of cumulative impacts in actions affecting communities;
• Tools and protocols: EPA states that it is investing in science to support the practice of cumulative impacts analysis and assessment. It is developing innovative geospatial and data integration tools to aid in the effective implementation of cumulative impacts across programs. These tools will expand and enhance EPA’s ability to characterize and address the burdens facing communities comprehensively. EPA is also developing protocols to enhance the capacity of governments and groups at all scales to develop action plans to identify, characterize, and address cumulative impacts affecting communities; and
• Convening whole-of-government solutions: EPA states that it “plays an important role as the convenor for the whole-of-government and community approaches.” EPA is taking steps to convene leading experts to advance the boundaries of science and best practices in policy and implementation of cumulative impacts.

Commentary

Bergeson & Campbell, P.C. (B&C^®) is pleased to see EPA’s contribution in this important area. This work aligns, in part, with the recommendations of other entities, particularly the Environmental Defense Fund’s (EDF) cumulative risk assessment (CRA) framework that considers multiple exposures to chemical and non-chemical stressors. For discussion, see our memorandum dated September 12, 2022. EPA has also considered non-chemical stressors in the context of its codified regulatory definition of “potentially exposed or susceptible subpopulations” (PESS) under the Toxic Substances Control Act (TSCA). PESS is defined under TSCA Section 3(12) as follows:

The term ‘‘potentially exposed or susceptible subpopulation’’ means 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.

EPA expanded on the above illustrative examples to include “overburdened communities” in the definition of PESS in its final rule, titled “Procedures for Chemical Risk Evaluation Under the Toxic Substances Control Act (TSCA)” (the Framework Rule). EPA states in the preamble to the final rule that the term “[overburdened communities] describes situations where multiple factors, including both environmental and socio-economic stressors, may act cumulatively to impact health and the environment and contribute to persistent environmental health disparities.” Cumulative impacts and non-chemical stressors may contribute to potential risks, but evaluating the myriad stressors, including toxic effects by a common mechanism, socio-economic stressors, and co-exposures with unrelated substances, can quickly become unmanageably complex. EPA’s research into this area will elucidate how EPA can efficiently consider these cumulative effects.

EPA’s recent draft risk evaluations under TSCA Section 6 have considered additional PESS factors. For example, EPA’s draft risk evaluation for 1,3-butadiene included pre-existing disease (e.g., obesity), lifestyle activities (e.g., smoking), sociodemographic status (e.g., race/ethnicity), other non-chemical stressors (e.g., adverse childhood experiences), and geography/site-specific issues (e.g., fenceline, historical releases), among other factors. EPA also provided summaries of how these factors were incorporated into its risk estimates.

B&C notes that EPA’s draft risk evaluation for 1,3-butadiene and its consideration of PESS may encounter legal challenges once EPA promulgates a risk management rule on this substance. EPA preliminarily determined that 1,3-butadiene presents an unreasonable risk of injury to workers and the general population, including fenceline communities, from inhalation exposures. EPA stated that the highest risk areas are along the Gulf Coast region from Texas to Louisiana, near 1,3-butadiene releasing facilities. We note this because the Interim Framework includes a disclaimer that states the following:

Pursuant to a permanent injunction issued by the U.S. District Court for the Western District of Louisiana on August 22, 2024, EPA will not impose or enforce any disparate-impact or cumulative-impact-analysis requirements under Title VI against any entity in the State of Louisiana.

It is unclear if EPA’s consideration of additional PESS factors may violate this permanent injunction, if for example, EPA’s final risk management rule for 1,3-butadiene impacts facilities in the State of Louisiana. It is also unclear if the forthcoming change in administration will lead to executive action, as done by the Biden-Harris Administration, to suspend, revise, or rescind the Interim Framework, the Framework Rule, or EPA’s work products under TSCA Section 6.