The U.S. Environmental Protection Agency (“EPA”) has pledged to make cumulative effects of air toxics a priority, especially for environmental justice and overly burdened communities. A framework for considering cumulative impacts in regulatory decision making will be issued by the EPA within the next year. Even considering the substantive research gaps that currently exists, stakeholders must initiate these types of analyses in permitting actions now to align with EPA’s policy and regulatory trajectory. This is especially true in the context of operating permits under Clean Air Act Title V (Part 70 and 71) and preconstruction permits under the Clean Air Act New Source Review (“NSR”) Prevention of Significant Deterioration (“PSD”) and Non-attainment New Source Review (“NNSR”) programs. Some states are already developing and implementing requirements for analyzing cumulative impacts as part of the air permitting process. Still, even outside of those explicit programs, environmental justice issues, and especially air toxics issues, will likely become a battle ground for air permitting application challenges. Accordingly, this paper provides the statutory and regulatory context for air toxics, surveys the current state of analytical requirements for cumulative impacts in air permitting, and proposes a framework for qualitatively analyzing the cumulative impacts of air toxics for permitting under the Clean Air Act.
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