Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). 1

Terry Doolittle

County Manager

Ken Buchanan

Assistant County

Manager

Development Services

Don Gabrielson

Air Quality Director

August 16, 2010

via e-mail (a-and-r-docket@epa.gov) and First Class Mail

Air Docket

Attention Docket ID No. EPA-HQ-OAR-2009-0443

Environmental Protection Agency

Mail Code 6102T

1200 Pennsylvania Avenue

Washington, D.C. 20460

Re: Lead Nonattainment Proposal Affecting Hayden, Arizona and Surrounding Environs

To whom it may concern:

On behalf of Pinal County I ask that the EPA revoke, or at the very least limit, the proposed lead

nonattainment designation affecting the area in and surrounding Hayden, Arizona.

The proposed lead nonattainment designation affects the area around ASARCO's copper smelter,

located in Hayden, Arizona. The proposed nonattainment boundary generally reflects the

historic, smelter-related sulfur dioxide nonattainment boundary. Relying on jurisdictional rather

than technical criteria, the EPA's proposal excludes only that portion of the sulfur dioxide

nonattainment area that comprises "Indian Country."

Pinal submits that the lack of competent data precludes the imposition of any nonattainment

designation under the new lead standard. And even looking beyond the lack of competent data,

the single offending monitor does not justify the EPA's proposal for an expansive nonattainment

boundary.

1. Available Data Does Not Support a Nonattainment Designation

The lead data underlying the EPA's proposal was collected prior to the EPA's 2009 revision of

the lead ambient air quality standard.

As a general proposition, the EPA has substantial discretion in interpreting and applying the

provisions of the Clean Air Act. 

1

When considering a state's proposed nonattainment boundaries, the Clean Air Act expressly
 CAA §109(d)(1)(B()(ii). 2

 CAA §301(a)(1). 3

 Generally, see 40 CFR Part 58. 4

 40 CFR § 58.3, 40 CFR Part 58 Appendix A. 5

 40 CFR § 58.60. 6

 73 Fed. Reg. 66964 (11/12/2008). 7

 Id. @ 67052, 40 CFR §50.16(b). 8

 "This appendix explains the data handling conventions an computations necessary for 9

determining when the primary and secondary national ambient air quality standards (NAAQS)

for lead (Pb) specified in § 50.16 are met." 40 CFR Part 50, Appendix R §1(a)

 40 CFR Part 50, Appendix R, §3(a). 10

 73 Fed. Reg. 66964, 67055 (8/12/2008). 11

authorizes the EPA Administrator to "make such modifications as the Administrator deems

necessary." That very broad authority would allow the EPA to consider a wide range of 2

information and data in formulating a nonattainment designation and map.

However, the Clean Air Act also confers upon the EPA rulemaking authority. 

3

The EPA has exercised that authority to define the requisites for a competent monitoring system.4

Literally, the EPA's monitoring data collection rules set forth in Part 58 apply to efforts by state

and local agencies. On its face, the provisions of those Part 58 rules do not expressly bind the 5

EPA in its monitoring efforts. 

6

However, the EPA also exercised that rule-making authority in revising the prevailing ambient

standard for lead, and the EPA indcluded in that action a precise regulatory definition of the

quantity and character of data required to justify designating lead nonattainment areas.7

In particular, the EPA's revised rule provides that compliance with the lead NAAQS shall be

based on a concentration monitored "accordance with Appendix R" of 40 CFR Part 50. 

8

Appendix R to Part 50 precisely defines when lead concentration data derived from PM-10

monitoring data collected will be considered valid. More specifically, the sampling and analysis 9

needed to comply with the then-applicable provisions of 40 CFR Part 58, Appendix A. 

10

Significantly, the November 2008 revision to the lead NAAQS does implicitly invoke the

provisions of Part 58 with respect to any monitoring agency, including the EPA. Those

regulatory revisions specifically conditioned the reliance on pre-2009 lead monitoring data upon

a finding that "the sampling and analysis methods that were utilized were consistent with ... the

provisions of Part 58 of this chapter including appendices A, C, and E ...." To the extent the 11

EPA collected the monitoring data, then the changes to Part 50.16 required that the EPA's effort

also comply with the requirements of Part 58, Appendix A.
 Notably, that same analysis would also require formal compliance with the other quality

 12

assurance requirements under Part 58.

 Chevron, supra.

 13

To the extent some other agency collected the data, the the provisions of Part 58 apply by their

own terms.

So regardless of whether the State of Arizona, the EPA, or anyone else "owned" the relevant pre2009 lead monitoring data, the monitoring system and monitoring process were required to

comply with Part 58, Appendix A.

Of particular note, Part 58, Appendix A, §3.3.1.1 requires that for quality-assurance purposes, an

agency operating a PM-10 monitoring network to collect lead data must operate at least one site

with co-located monitors collecting lead data. The implicit objective is to require the responsible

agency to formally demonstrate its ability to conduct accurate monitoring.

Apparently, the data in question was collected by a contractor working directly or indirectly for

the EPA. Apparently, the data was entered in the AIRS AQS data system by ADEQ.

Nothing in the available record indicates that any of the involved agencies were actually

operating co-located PM-10/lead monitors as required by Part 58, Appendix A.

Therefore, the agency conducting the monitoring did not meet the quality assurance requirements

of Part 58, Appendix A, §3.3.1.1.

Therefore, the sampling and analysis methods that were utilized were not consistent with Part 58

generally, and Part 58 Appendix A specifically, because there were no quality-assuring colocated lead monitors in the relevant system.12

Therefore, the available lead monitoring data doesn't meet the validity test of Part 50 Appendix

R, §3(a).

Therefore, no valid data exists to compare against the new lead NAAQS as defined in 40 CFR

§50.16.

Accordingly, Pinal County submits that the EPA should refrain from relying on that data, refrain

from imposing a lead nonattainment designation on the Hayden area based on that data, and

designate the area as unclassifiable until such time as competent monitoring data does exist.

2. Nothing Supports the EPA's Proposal for an Expansive Lead Nonattainment Boundary

Where the Clean Air Act affords the EPA discretion to act, that discretion is still conditioned

upon the articulation of a rational basis for the action taken. 

13

The EPA's proposal rests on a single averaged exceedance that occurred at a single monitor. 

While the underlying offending data was all collected at a single point, the EPA proposes to

simply embrace the boundaries of the existing sulfur dioxide nonattainment area, encompassing

some 250 square miles.
Neither ADEQ's analysis supporting the Governor's recommendation, nor the analysis supporting

the EPA's response offer any basis to conclude that areas remote from the Hayden Smelter

complex are in fact currently afflicted by airborne lead emissions.

Although nothing supports a conclusion that residents of the nearby communities of Kearny and

Dudleyville are in fact currently afflicted by airborne lead, a nonattainment designation will have

adverse practical effects on the citizens of those areas. In that regard, I attach and incorporate a

copy of Pinal County's comments to ADEQ, dated November 6, 2009.

For the reasons set forth in that letter, I additionally ask that to the extent the EPA does choose to

impose any nonattainment designation on this area, the designation be limited to an area

supported by the scientific data and analysis in the record. I submit that that record does not

support any designation extending beyond the immediate environs of the Hayden Smelter

Complex itself. And at least from a Pinal-County-perspective, that record certainly does not

support a nonattainment designation extending to the communities of Kearny and Dudleyville.

I appreciate your consideration of these comments.

Sincerely yours,

 /dpg/

Donald P. Gabrielson

Director

Pinal County Air Quality

enc.

cc w/enc. via e-mail: Jared Blumenfeld, EPA Region IX

Colleen McKaughan, EPA Region IX

Eric Massey, ADEQ
Terry Doolittle

County Manager

Ken Buchanan

Assistant County

Manager

Development Services

Don Gabrielson

Air Quality Director

November 6, 2009

via E-Mail and First Class Mail

Nancy Wrona, Director

Air Quality Division

Arizona Department of Environmental Quality

1110 West Washington Street

Phoenix, Arizona 85007

Re: Proposed Hayden lead nonattainment area

Dear Ms. Wrona:

Thank you for the opportunity to comment on this proposal.

1. On behalf of Pinal County, I ask for revision of the current ADEQ proposal to define a

lead nonattainment area that includes significant areas of Pinal County.

The Town of Kearny, which lies in Pinal County, has expressed dismay over ADEQ's

proposal to include the town within the lead nonattainment area.

Local leaders have also expressed unhappiness over the proposed inclusion of the

unincorporated community of Dudleyville in the nonattainment area.

In the absence of objective data to demonstrate that local airborne lead problems actually

exist, I ask that the Governor exclude both the Town of Kearny and the community of

Dudleyville from the impending proposal to define a Hayden lead nonattainment area.

2. ADEQ's September 28, 2009 Boundary Recommendation for the 2008 Revision to the

National Ambient Air Quality Standard for Lead ("ADEQ TSD") provides neither a

regulatory nor an objective basis for extending a nonattainment designation to include the

Town of Kearny or the community of Dudleyville.

3. The EPA's default guidance dictates that a lead nonattainment area focus on the

geographic county where the offending monitor lies. The offending monitor is in Gila

County, not Pinal County.
The Town of Kearny lies in Pinal County, about seven miles northwest of the offending

monitor.

The unincorporated community of Dudleyville, defined as Township 6 South, Range 16

East, lies in Pinal County about four miles south-south-east of the offending monitor.

4. An air monitoring effort would clearly and objectively clarify whether lead levels in

Kearny or Dudleyville do, or do not, meet the lead NAAQS. 

However, ADEQ's analysis presents no ambient air quality monitoring data to

demonstrate that the either the Town of Kearny or Dudleyville is in fact currently afflicted

by elevated concentrations of airborne lead.

Soil samples quantifying surface levels of lead will not accurately reflect the current

impact of lead emissions. Copper smelters have operated in the Hayden area for a

hundred years or more. During much of that time emissions were emitted through tall

stacks without any controls. For those reasons, surface concentrations of lead in Kearny

or Dudleyville will be distorted by historical impacts. Soil samples will not accurately

reflect airborne lead levels resulting from the operation of the Hayden smelter in its

current configuration.

5. The EPA's contractor concluded in 2008 that "the major sources for elevated arsenic and

lead concentrations are likely the process generated emissions from the smelter facilities." 

ADEQ TSD, Appendix A, page 7, ¶3.

Once, the Hayden smelter facility emitted pollutants through a 900 foot tall primary stack

that assured impact on remote areas. Now, however, emissions from normal operation of

the concentrator and smelter occur much closer to ground level. Based on information

and belief, none of those emission points exceed 200 feet in height relative to ground

level. As a result, reasoned conjecture can only conclude that emissions from the facility

will not have a meaningful ambient impact on receptors located miles away.

That is, impacts from airborne lead emissions from process operations will occur

principally in the immediate vicinity of the Hayden smelter complex, and not in Kearny

or Dudleyville.

6. ADEQ's summary analysis concludes that "[t]here are no significant sources of Pb

emissions in Pinal County." ADEQ TSD, Table 4-3. 

Portions of the tailings piles associated with the Hayden smelting complex do lie in Pinal

County 10 . Those tailings piles may contribute to wind-blown PM exceedances. But the

EPA' 10 s contractor concluded that when high winds potentially contributed PM emissions

from the tailings piles (e.g. November 9, 2008), those events did not coincide with

"elevated arsenic, lead, or cadmium concentrations." ADEQ TSD, Appendix A, page 7,

¶2.

Certainly, nothing suggests that meaningful sources of lead emissions exist in either

Kearny or Dudleyville. Including those communities in a nonattainment area will do

nothing to reduce emissions.
7. Given the nature of the lead NAAQS, assessed as a three-month average, prevailing wind

patterns will drive long term average results. The EPA's contractor concluded that

"[d]uring most of these sample periods, the prevailing wind direction was from the

northeast, and the ASARCO smelter facility was generally upwind [of the Hayden Station

monitor]." ADEQ TSD, Appendix A, page 3, ¶4.

The Town of Kearny lies to the northwest of the smelter, and would not be affected by

emissions carried by those prevailing winds.

Dudleyville lies to the south-southeast of the smelter, and would not be affected by

emissions carried by those prevailing winds.

8. ADEQ does note recurring seasonal inversions in the Hayden area, which could tend to

trap pollutants in the region. ADEQ TSD, Section 4.6 Meteorology.

However, ADEQ also acknowledges that "[t]he density of lead particles causes ambient

emissions to settle near the source." ADEQ TSD, Table 4-3. As discussed above,

ambient emissions from the current Hayden smelter complex occur relatively near to the

ground.

The Hayden Maintenance Yard monitoring station, located about one-half mile from the

smelter, apparently does violate the lead NAAQS. However, the Hayden High School

monitor, located just over a mile from the smelter, does not appear to violate the lead

NAAQS. ADEQ TSD, Figure 4-1. 

Given that the Kearny is at least seven miles from the smelter, proximity does not justify

extending the proposed nonattainment area to include the Town.

Given that Dudleyville lies about four miles from the smelter, proximity does not justify

extending the proposed nonattainment area to include the Dudleyville area.

9. In the absence of relevant local air quality monitoring data, or modeling analysis

projecting local impacts, or some other factual basis to conclude that an air quality

problem exists, the citizens of Kearny and Dudleyville lack the benefit of a meaningful

justification for the negative impacts on peace of mind and property values that will flow

from a nonattainment designation.

Accordingly, I ask that ADEQ trim back its recommendation to exclude the Town of

Kearny and Dudleyville from the proposed lead nonattainment area.

If you have any questions, please contact either me at 502-866-6915.

Sincerely yours,

Don Gabrielson

Director
Pinal County Air Quality

cc via e-mail: Supervisor Pete Rios

Supervisor David Snider

Supervisor Bryan Martyn

Brian Davidson, ADEQ