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March 22, 2022

EPA Proposes Updates to the Hazardous Air Pollutant Copper Smelting Rules

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Key Takeaways

  • On Jan. 11, EPA proposed more stringent National Emissions Standards for Hazardous Air Pollutants (NESHAPs) that apply to both major and area source primary copper smelters.
  • The proposed standards are much more stringent than current requirements and any company subject to these NESHAPs should review EPA's proposed changes and consider active participation in RTR reviews in the future.

On Jan. 11, EPA proposed more stringent National Emissions Standards for Hazardous Air Pollutants (NESHAPs) that apply to both major and area source primary copper smelters. As part of that review, EPA must identify any new, cost-effective control technologies and identify any "residual" risks to public health from the industry, also known as a risk-and-technology review (RTR).

Under the Clean Air Act, EPA is required to conduct an RTR for an industry sector eight years after it first issues a NESHAP rule for that sector. However, EPA has not completed the required review for several NESHAPS within the eight-year period. The copper smelting NESHAP for large "major" sources has not been updated since 2002 and for area sources since 2007. According to EPA, the proposed amendments will achieve a 4.26 tons/year reduction in hazardous metal emissions by lowering the particulate matter (PM) emissions limits from converters and furnaces at primary copper smelters located at major sources and instituting additional work practices. EPA is also proposing standards for processing fugitive PM emissions from furnaces and converters, which are controversial because EPA does not expect to achieve reductions in PM emissions from these new standards but believe that they "will ensure that the emissions from furnaces and converters remain controlled and minimized moving forward."

Importantly, as part of the rulemaking EPA proposed to remove all startup, shutdown, and malfunction (SSM) exemptions from the rule, and proposed to apply additional opacity standards during startup and shutdown periods. EPA concluded that because control devices are required to be in operation before startup and during shutdown, these emissions are expected to be no higher than during normal operations. Because malfunctions are neither "predictable nor routine" EPA indicated that they will not be considered in setting the emissions standards. EPA further noted that nothing in Section 112 of the CAA directs EPA to consider malfunctions in determining the level of emission controls achieved by the best performing sources, which are used to set emission standards. EPA emphasized that the general duty to minimize emissions will continue to apply during SSM periods.

The proposed standards are much more stringent than current requirements and any company subject to these NESHAPs should review EPA's proposed changes and consider active participation in RTR reviews in the future. It will be especially prudent to review the requirements for fugitive emissions. By definition, these emissions are very difficult to quantify, much less control. Finally, any source subject to the new copper smelter requirements should evaluate their operations to ensure that they are in compliance with new requirements as they become final. Please contact a Clark Hill Environmental & Natural Resources attorney with questions regarding NESHAP requirements, potential impacts on your business, and any issues in complying with these programs.

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