Brittle and Meyer suspect the plant slows down production during the day, when the smoke is more visible, and then cranks up again at night.

"It's become very evident that the mine is acting intentionally to violate the law," Brittle says.

State regulators say ASARCO is operating within legal limits and hasn't violated its permit. Officials from the Arizona Department of Environmental Quality and the state Department of Health Services say they don't see any problems with the smelter.

But that's about all they can say. In this era of limited government and limited regulations, state officials can offer only a limited response to the questions posed by the people of Hayden.

Mike Traubert, ADEQ's Air Quality Compliance director, says he's seen a dramatic improvement in the smelter's operations since 1990, when concerns were first raised about the smelter's emissions.

"There are times when you can go by there [the smelter], and you wouldn't even know it's operating by looking at the stack," he says.

Traubert chalks up this progress to steps the company has taken voluntarily, like installing a pollution control device called a baghouse in its smelter in 1996.

"It's in their best interest to identify these problems ahead of time and correct them," Traubert says. "By the time we get involved, it generally means [a problem's] been occurring way too long."

But ADEQ's files also contain page after page of excessive emission reports from ASARCO's Hayden smelter. The emissions are usually brief, but opacity sometimes runs as high as 75 percent, according to the plant's own quarterly reports.

Still, none of those readings can be used for action against the company--because the company turned them over voluntarily. By administrative code, Traubert says, routine readings are advisory only.

Of course, ADEQ could use those readings to do its own investigation. It just hasn't, Traubert says.

Since 1996, ADEQ has "caught" the plant exceeding its permit three times. One of those was a release of sulfur dioxide in early 1998.

But no penalties were levied against ASARCO for those three violations.
That's because ADEQ allows some excessive emissions. If the release is the first excess of the year, as it was early in 1998, then the excessive release is not considered a violation.

The same is true if the release was within 15 percent of the acceptable standard. Or if the release was because of an "unforeseen equipment failure," Traubert says.

Even if ADEQ did issue a notice of violation for each of these incidents, it wouldn't mean much. ASARCO has not been fined by ADEQ for a notice of violation once this decade.

(ADEQ did sue ASARCO over allegations of improper handling of asbestos at the Hayden plant in 1993; the case was settled, with ASARCO paying the state $125,000, but admitting no liability, according to court and ADEQ records. ASARCO also recently reached a $55 million agreement with EPA and ADEQ to improve disposal of wastewater at the Ray mine, just down the road from the smelter. As part of the deal, ASARCO also agreed to pay $3 million in fines.)

And even though Hayden residents think the plant is cranking up its output at night, when it's harder to see the smoke, Traubert doesn't think that's true.

"We review [ASARCO's] reports, and by reviewing their reports, we can see if they're changing their practices at night. That information would show up," he says. "The whole purpose of a copper smelter is to run at a constant rate . . . to run as hard as they can in compliance with the rules. If they were going to alter their operations at night, they'd have to implement a whole separate protocol. And I just can't see them doing that."

Traubert dismisses Brittle's report by the California expert who found excessive emissions because it was done at night. The method ADEQ uses to gauge the thickness of the smoke being emitted by the smelter uses daylight as its standard. And Traubert doesn't believe testing can be done any other way. Even if it could, "that is not allowed by our rule," Traubert says. "We would have to change ADEQ policy to do that."

Traubert has heard the complaints of paint peeling off cars. He even sent an investigator to check it out in 1993. Nothing came of the investigation.

ADEQ doesn't notify the people of Hayden when the ASARCO smelter doesn't meet standards. ADEQ never notified anyone about the 12 violations the plant has had since 1991, including town officials or the press.

"This is our belief and by practice and policy, we don't issue press releases on NOVs. We issue a great many NOVs, and many can be easily correctable in just a few days," Traubert says.

Traubert sees no problems with arsenic emitted by the plant, either.
In fact, a federal limit on arsenic is high enough that the plant can put out more than 100 times the amount of arsenic that state health guidelines consider safe and still not be in violation of any law.

Jim Guyton, who works in ADEQ's air monitoring division, says the levels of arsenic in the air at Hayden are the highest in the state. On average, arsenic levels were nearly 250 times state health guidelines in 1997, and were at 129 times state guidelines for the first half of 1998.

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