Green cars, environmental justice goals collide in EPA toxics rule

By Sean Reilly | 06/17/2024 01:31 PM EDT

The White House has vowed to combat climate change and pollution inequalities, but a copper smelting rule spotlights hurdles to meeting both goals.

President Joe Biden speaks at the General Motors Factory Zero electric vehicle assembly plant in Detroit.

President Joe Biden speaks at the General Motors Factory Zero electric vehicle assembly plant on Nov. 17, 2021, in Detroit. Evan Vucci/AP

President Joe Biden’s push to put more electric vehicles on the road runs the risk of sideswiping his goal of easing the unequal burden of pollution exposure in a newly updated air toxics regulation.

At issue is a revised copper smelting rule. Electric vehicles need lots of copper, and a top U.S. producer is a century-old plant in arid southeastern Arizona that in recent years has lofted hundreds of tons of lead, arsenic and other hazardous pollutants into the skies above, only a few miles from an Apache Indian reservation. As production rises, the tribe fears that pollution will rise, too.

While EPA predicts that the long-overdue update for the industry will significantly dent emissions, records show that agency employees rejected a bid for even larger cuts on the grounds that the estimated compliance costs were too high.


EPA “could do a lot more,” said Jane Williams, who heads the Sierra Club’s national Clean Air Team, a part of the group’s volunteer network.

Despite the White House’s pledge to wholeheartedly pursue environmental justice, the episode underscores the dollar-and-cents trade-offs embedded in a system geared to reducing health risks posed by hazardous air pollutants, not eliminating them.

After initially deeming the potential perils posed by smelter emissions unacceptable, EPA says the new requirements will eventually halve the industry’s output of toxic metals and provide an “ample” safety margin to the public.

Freeport-McMoRan, owner of the Arizona smelter, is banking on the value of copper’s importance to electric vehicles and other harbingers of a shift to an emissions-free economy.

The Phoenix-based global mining giant, which reported almost $23 billion in revenue last year, is studying the new rule’s potential impact, spokesperson Linda Hayes said in an email.

Since a 2018 upgrade, the plant’s lead emissions have steadily declined, Hayes said, “notwithstanding a general increase in production as well as an increase in the naturally occurring lead in material processed at the smelter,” located in Claypool, Arizona. A state-run monitor about 1.5 miles east of the plant registered airborne levels of the heavy metal that were a fraction of EPA’s current standard, she added.

Still, the smelter coughed up more than ten tons of lead and lead compounds in 2022, the last year for which numbers are available from EPA’s Toxics Release Inventory. That was almost triple the amount reported by the nation’s only other currently operating primary copper smelter, a smaller facility located in Utah and owned by Rio Tinto Kennecott.

A third smelter also in central Arizona is run by Asarco, a subsidiary of Grupo México. While it’s been idle since late 2019, company managers are eyeing the possibility of a restart.

The strengthened regulations took more than two years of sometimes testy give-and-take to complete, public records show. They are one in a spate of updates to hazardous pollutant rules that EPA — usually under court-ordered deadlines — has churned out for dozens of industrial sectors in recent years.

Densely technical and laden with jargon like “maximum individual risk” and “targeted organ-specific hazard index,” those updates represent complex judgment calls about how much businesses should do to cut releases of toxics linked to cancer and other serious illnesses. Whatever the outcome of a particular review, lawsuits often follow.

The smelting industry review represents a microcosm of the challenges. Not only are there just a handful of smelters that process copper ore, the two largest are both major polluters within a short drive of the same deeply disadvantaged community.

The San Carlos Apache Indian Reservation, created in the 1870s and spanning an area larger than the state of Delaware, is home to about 10,000 people, according to U.S. census data. Median household income is barely half that of the U.S. as a whole. During the Covid-19 pandemic, the tribe was among the hardest hit nationally by illness and death, one executive wrote.

The Freeport-McMoRan smelter lies within eight miles of the reservation’s boundaries and the Asarco operation is fewer than five miles away, the tribe wrote in joint comments filed last September with the Sierra Club and Earthjustice that called the Freeport-McMoRan plant the nation’s “single worst lead emitter.”

“Needless to say, if copper smelters’ production increases in the next years as expected, their emissions of lead, arsenic and other toxics will be even higher.”

Lead pollution concerns

Under Biden, EPA has heralded a strategy to cut exposure of lead, which is tied to a litany of health harms, ranging from lower IQ and hyperactivity in children to reproductive problems and kidney damage in adults.

At the same time, copper production, known to be a source of airborne lead emissions, is essential to furthering the spread of electric vehicles whose innards rely on the malleable metal more than traditional gasoline-fueled cars and trucks.

Long-term fundamentals for copper are “favorable,” Freeport-McMoRan wrote in its latest annual report that cited EVs, renewable power and other developments as grounds for optimism. By 2030, the White House wants zero-emission models to account for half of all new car and light truck sales. The expected demand from auto manufacturers is such that a new study casts doubt on the U.S. mining industry’s ability to meet it.

Copper rods used to machine parts are stacked on a shelf at Makerite Manufacturing in Roscoe, Illinois.
Copper rods used to machine parts are stacked on a shelf at Makerite Manufacturing on Oct. 7, 2019, in Roscoe, Illinois. | Scott Olson/Getty Images

From 2021 through 2023 alone, the Claypool smelter’s production climbed 13 percent, the annual report says. That growth is what worries Williams and other advocates.

“The pie is getting bigger and it’s a lead pie, so it’s not a good thing,” said Jim Pew, an Earthjustice attorney who questions why Asarco and Freeport-McMoRan don’t replace plants that date to 1912 and 1915, respectively.

Both carry checkered compliance histories. The Asarco facility is part of a Superfund site; in 2015, the company agreed to pay a $4.5 million fine and spend $150 million on improvements to settle alleged Clean Air Act violations.

Asarco then sued EPA two years ago to overturn a finding that tagged the company for the surrounding area’s inability to meet air quality standards for lead and sulfur dioxide. The two sides are in mediation, according to filings with the 9th U.S. Circuit Court of Appeals.

In 2018, the Freeport-McMoRan smelter overshot its permitted lead emissions limit for the entire year in just three months, the Arizona Department of Environmental Quality found in a later order.

While admitting no wrongdoing, the firm agreed to a monitoring plan and other steps to tamp down releases. Besides the approximately ten tons of lead and lead compounds reported to the Toxics Release Inventory in 2022, the Claypool plant emitted more than 100 tons of sulfuric acid, arsenic and other pollutants, up 14 percent from the preceding year.

EPA’s rule and price tag

An EPA economic impact analysis offers no indication that the burgeoning need for copper led the agency to pull its punches; the final rule is stronger than the original draft.

Like other major industrial sources of hazardous air pollutants, copper smelters are covered by regulations requiring use of “maximum achievable” controls that, however, don’t cap emissions. The recent update, which won’t take full effect for another three years, will roughly halve releases of toxic metals, mainly lead and arsenic by about eight tons annually, EPA predicts.

While welcoming that outcome, the Sierra Club, Earthjustice and the San Carlos Apache Tribe sought more. The agency’s analysis failed to provide a full reckoning of the enduring dangers, they wrote in their comments. Many of the plants’ emissions “are both persistent in the environment and bioaccumulative, and have built up on the Reservation for more than a century.”

They urged EPA to also order add-on installation of a device known as a wet electrostatic precipitator to further slash annual metal releases from the Freeport-McMoRan smelter.

Agency employees gave the idea a serious look, including it as an option in the 2022 proposal for tightening the regulations.

With an estimated upfront price tag of $50 million followed by yearly recurring expenses of $13 million, the precipitator’s “cost effectiveness” amounted to $1.7 million per each ton of hazardous metal reduction, according to the proposal. By one yardstick, the cancer risk to nearby residents would be cut by one-third, EPA projected.

After taking input and concluding that the emission cuts would be less than first predicted and the expense greater, the staffers concluded in the final version released last month that the cost-effectiveness figure was actually $5.2 million per ton. That price tag, they wrote, was “not reasonable.”

An attorney for the San Carlos Apache Tribe did not reply to emailed requests for comment on the final regulations.

This year’s update was the first since EPA set the initial smelter rules in 2002. The agency undertook it only after environmental groups sued to force compliance with a Clean Air Act mandate requiring the agency to reassess the regulations’ adequacy every eight years. Both Asarco and Freeport-McMoran fought back, their feedback shows.

In comments filed last September, for example, Freeport-McMoRan accused EPA of low-balling compliance costs and overestimating predicted pollution cuts. Earlier this year, Asarco warned that one possible avenue would be legally indefensible. Under a standard Clean Air Act deadline, all sides have until mid-July to challenge the regulations in court. As of publication, no lawsuits had been filed.

The Asarco smelter had initially been shut down by a United Steelworkers strike that began in October 2019 and lasted about nine months. It has stayed mothballed ever since.

Following a recent report by Reuters that the company plans to relaunch operations there, however, an Asarco manager said in an email this month that all business options are under evaluation, but the timeline for a possible restart “is yet to be determined.”

Should the Asarco plant be back in business, the potential pollution is an added concern, Williams said in an email. While the Asarco smelter reports fewer lead emissions than Freeport-McMoRan’s, she added, those releases are “still very high.”