August 11, 2010

VIA FACSIMILE AND ELECTRONIC MAIL

Air Docket

Attention Docket ID No . EPA-HQ-OAR-2009-0443 Environmental Protection Agency

Mail Code: 6102T 1200 Pennsylvania Ave., NW Washington, D.C. 20460

Email: a-and-r-docket@epa.gov [Attn: Docket ID No. EPA-HQ-OAR-2009-0443] Fax: 202-566-9744 [Attn: Attention Do cket ID No. EPA-HQ-OAR-2009-0443]

Re: EPA’s Lead NAAQS Nonattainmen t Proposal for Hayden Area, AZ Docket ID No. EPA-HQ-OAR-2009-0443

To Whom It May Concern:

On July 8, 2010 , the United States Environmen tal Protection Agency (“EPA”) published in the Federal Regi ster a notice of availability and public comment period concerning the EPA’s responses to State and Tribal 2008 lead National Ambient Air Quality Standard (“NAAQS ”) attainment status designation recommendations. In the notice, the EPA invited the public to comment on the responses.

The Town of Kearny hereby provid es its comments concerning the EPA’s proposal to designate the Hayden area in Ar izona as being in nonattainment of the NAAQS for lead. The EPA’s proposal is available at: http://www.epa.gov/leaddesignations / 2008standards/rec/region9R.html.

For the reasons explained below, th e Town of Kearny believes the Hayden area lead nonattainment proposal is unwarrant ed. We are in receipt of the Zephyr Environmental Corporation (Zephyr) repor t dated August 10, 2010 commissioned by ASARCO LLC (Asarco) to review docume nts relevant to EPA’s nonattainment designation proposal and are in the process of conducting our own review of the report. Based on the Town of Kearny’s preliminary re view of the Zephyr report, it is clear the ambient air quality data that are the founda tion of the EPA’s nona ttainment designation proposal were not collected in accordance with applicable quality assurance and qualitycontrol (“QA/QC ”) requirements of regulations that implement the Clean Air Act. These

rules do not allow data that have not been collected in accordan ce with applicable QA/QC regulations to be used to support a nonattainment designation

To the extent necessary to preserve the Town of Kearny ’s remedies in any future proceeding regarding the nonattainment propo sal, the Town of Kearny incorporates herein by reference the Augus t 10, 2010 Zephyr report (b eing submitted separately as part of Asarco’s comments), which discusse s the QA/QC concerns related to the air monitoring data, and adopts the report’s comments as th e Town of Kearny’s own.

The Town of Kearny is sending this letter with the public health and public

welfare of our citizens foremost in mind. We note:

(a) The nonattainment proposal is based on a reported 0.17 μg/m 3 “design value,” which exceeds the lead NAAQS of 0.15 μg/m 3 by only 0.02 μg/m 3 ;

(b) According to the EPA, the reporte d exceedance occurred only once, during the July through September 2008 three-month averaging period;

(c) According to the EPA, there have been no reported exceedances of the lead NAAQS since the July through September 2008 period; and

(d) The documents from th e record indicate the reported exceedance is based on data that were generated via the collecti on and analysis of ambient air samples in a manner that did not satisfy QA/QC regulations that, at the time, governed the collection and analysis of the samples.

The above indicates the data are not a va lid representation of the air quality of the Hayden area including the Town of Kearny. Therefore, aside from the regulations that preclude such data from being used to sup port a nonattainment designation, it appears the data do not represent a risk to the public he alth. Conversely, the economic consequences of an unwarranted NAAQS nonattainment desi gnation could potentially be significant for the Town of Kearny, in terms of cost to businesses required to comply with a nonattainment designation, employment, new business creation, and local and state tax receipts. This action would be in addition to the loss of revenu es as a result of the current recession and has led to program reductions and eliminations. There would be little or no incentive to grow the local econom y out of the current situation.

Based on the foregoing, the Town of Ke arny believes the only appropriate course of action with respect to the lead NAAQS a ttainment status of the Hayden area would be for the EPA to designate the area unclassifi able pending the colle ction of ambient air quality data that satisfy the applicable quality assurance requirements.Sincerely,

Debra Sommers Mayor

cc (fax): Jared Blumenfeld, Regional Administrator U.S. Environmental Protection Agency, Region IX

75 Hawthorne Street San Francisco, California 94105-3901

Fax: 415-947-3579