UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 1

June 13 2005

Richard Wardwell Chairman

1 CONGRESS STREET SUITE 1100

BOSTON MASSACHUSETIS 02114 2023

Maine Board of Envirorunental Protection

17 State House Station

Augusta ME 04333 0017

Dear Mr Wardwell

Thank you forthe opportunity to comment on Maine's Chapter 584 regulation entitled Surface

Water Quality Criteriafor Toxic Pollutants EPA believes that the changes the Department of

Environmental Protection DEP is proposing generally improve Chapter 584 for use as a

statewide water quality standard WQS for toxic pollutants In particular we commend DEP's

proposal to increase the statewide fish consumption value used in the calculation of ambient

water quality criteria for the protection of human health from 6.5 gday to 32.4 gday

Because this change will improve protection for people that consume fish taken from Maine's

waters EPA had originally indicated to the DEP that we would not likely be submitting

comments However based on our own examination of Chapter 584 and after consulting with

the federallyrecognized Indian Tribes in Maine we wish to submit the attached comments on

the provisions in section 3B2 concerning sitespecific human health criteria and the issue of

subsistence fish consumption We believe there are opportunities for the Board to improve the

regulation

The Maine Indian Tribes have questioned how Chapter 584 would protect their unique uses of

the waters in the State especially the right of the Penobscot Nation and Passamaquoddy Tribe to

take fish for their individual sustenance EPA appreciates the Department's participation in

discussions EPA has had with the Tribes concerning Chapter 584 Based on those discussions

EPA has concerns about how section 3B2 might be interpreted in the future We want to clarify

the Agency's views on several issues to avoid misunderstandings during the development of a

sitespecific criterion

At present Maine's state water quality standards are not applicable to the waters of the federally

recognized Tribes in Maine because the State has not specifically applied to implement its WQS

program in these territories and EPA has not made a specific fmding that the State has

jurisdiction to implement its WQS program in Tribal waters EPA is taking no position now on

whether the State has adequate authority to implement its standards in Indian territories

Even though the standards do not currently apply in the Indian territories it appears that they

could have a substantial effect on water quality in the Tribes territories and on the Tribes use of

waters adjacent to their territories There are significant disputes over the exact boundaries ofthe

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certain Indian reservations in Maine But under any scenario of which we are aware the WQS

apply in waters directly adjacent to the Tribes reservations and in some scenarios they would

apply in waters that completely surround a reservation Therefore it is important to clarify the

Department's ability under Chapter 584 to consider and protect the Tribes right to fish for

individual sustenance Again thank you for the opportunity to comment and please do not

hesitate to contact me at 617 918 1500 if you have any questions

Sincerely

p1

Linda Murphy Director

Office of Ecosystem Protection

Attachment

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EPA NEW ENGLAND COMMENTS ON

MAINE'S CHAPTER 584

1 Section 3B2 provides the process forthe Board to adopt sitespecific human health

criteria The first step in this process is for the Board to consider whether there is an

identifiable population s using a water body whose uses is distinct from that of the

population considered when establishing the statewide criteria Maine state law supplies

this step of the analysis for certain tribal uses The Maine hnplementing Act as ratified

by the federal Maine fudian Claims Settlement Act specifically recognizes the reserved

right of the Penobscot Nation and Passamaquoddy Tribe to take fish within the

boundaries of their fudian reservations for their individual sustenance a use that has not

already been addressed in the statewide criteria under Chapter 584 30 MRSA

6207425 USC 1725 bl There maybe other tribal uses that meritspecific

examination or further documentation to detennine whether there is an identifiable

population that is making a use of a water distinct from that ofthe population considered

when establishing the statewide criteria under Chapter 584 For example the Tribes and

other populations may engage in fishing fortheir sustenance in waters outside the

boundaries of the tribal reservations

2 In our discussions with the Department and the Tribes there appears to be a

misunderstanding about how to apply EPA's Methodology as provided for in section

3B2 of Chapter 584 The EPA Methodology at section 4.3.3.1 pp 424 to 428

provides the following hierarchy of preference for the type of consumption data to use in

developing a human health criterion to protect highly exposed population groups

l Use of local data

2 Use of data reflecting similargeography population groups

3 Use of data from national surveys and

4 Use of EPA's default intake rates

If EPA understood the Department's description ofthe State's approach correctly the

State interprets EPA's guidance as a stepwise process rather than a hierarchical

recommendation of preference It appears that the State starts at the top of this hierarchy

and if there are no local data available then the inquiry into how to protect the local use

ceases As a result the State never considers using data further down the hierarchy

including EPA's default rates

EPA agrees that reliable data that document local conditions are preferred but the

absence of such data need not preclude use of other credible scientific information further

down this hierarchy that would reasonably serve to characterize and protect a unique use

In other words EPA's recommended approach is to use the default intake rate in the

absence of more specific or local data

3 EPA again congratulates Maine for proposing to adopt 32.4 grams per day as the

statewide fish consumption value As noted in comment 1 above it appears Maine law

already recognizes the Tribes use of waters for sustenance fishing therefore it becomes

especially important to anticipate how the Board will approach setting sitespecific

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human health criteria to protect that use EPA urges the Board to consider incorporating

the Agency's default consumption rate for subsistence fishers 142.4 gramsperday into

Chapter 584 as the value to use in an analysis of a site specific criterion to protect the

sustenance use when more specific data are not available EPA's default subsistence

consumption rate was developed after an extensive review of fish consumption surveys

and is specifically recommended in EPA's Methodology for Deriving Ambient Water

Quality Criteriafor the Protection ofHuman Health 2000 EPA822B00004 EPA's

Methodology the guidance incorporated into section 3B2 of chapter 584 In the

absence of other more local or specific data EPA's default rate represents a reasonable

basis for supplying a consumption rate to protect these Tribes subsistence fishing use

While it appears possible for the Board to use EPA's default subsistence fisher

consumption rate on a case bycase basis under section 3B2 see comment 4 below

EPA believes it would clarify this provision and avoid unnecessary confusion that could

slow down permitting actions in the future if Chapter 584 made it clear that EPA's

default consumption rate of 142.4 grams per day is the value that would apply in the

absence ofmore specific data when developing a sitespecific criterion to address

subsistence fishing The Board could depart from that default rate if there is better

evidence available concerning the nature and extent of the use especially sitespecific

data But providing a default value forthe analysis of site specific criteria for subsistence

fishers would substantially simplify future permitting actions where more specific data

are not available

4 Section 3B2a addresses studies developed to assess these unique uses The latest

version of Chapter 584 includes a new provision at the end of this section A plan of

study must be submitted to the Department for review and approval prior to the beginning

of the studies 1 It is not clear on the face of the proposed regulation how this provision

ispreapproved intended to operate This subsection appears to require the Board to consider such

studies among other things suggesting that the Board is not relieved of its

obligation to consider relevant and scientifically sound studies that do not have the

Department's preapproval This interpretation of Section 3B2a is reasonable and it

would appear to be consistent with the requirement in the Maine Administrative

Procedure Act that t he agency shall consider all relevant information available to it

added

5 MRSA 8052 4

On the other hand if this provision is meant to relieve the Board of its obligation to

consider otherwise sound studies solely because the Department has not preapproved the

plan forthe study then this provision Wlreasonably limits the information the Board

1

Section 3B2a with its introduction reads in relevant part as follows with emphasis

The Board shall consider among other things the following

a Studies designed and implemented to provide accurate information regarding the fact and

extent of specific human activities that create a potential exposure to toxics in the water

body A plan of study must be submitted to the Department for review and

approval prior to the beginning of the studies

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should consider It is understandable that the Board wou d desire that the Department

provide input and direction for a study plan before it is executed and the Board has every

right and obligation to assess the scientific validity of any study submitted forits

consideration preapproved or not But it would raise questions about EPA's ability to

approve this provision if the State interpreted it to eliminate the Board's obligation to

consider relevant preapproved scientifically sound data solely because the Department has not peerreviewed the study plan If for example EPA or a Tribe has produced a solid

study that meets any objective criteria for scientific validity the mere fact that

the Department has not approved the study plan in advance does not alter the scientific

merit or evidentiary weight of that study SimilarlyEPA's default values provide a

reasonable basis for estimating the consumption rates of subsistence fishers even though

no particular state preapproved the EPA's survey of the literature or all the studies EPA

used to derive that value EPA requests that the Board clarify in a response to this

comment hovt the State interprets this provision

5 Section 3Brequires the Board to adopt sitespecific criteria only as part of a waste

discharge license proceeding EPA urges the Board to consider providing for the

opportunity to act on site specific criteria outside the context of a particular permitting

proceeding Focusing on sitespecific criteria only in connection with a particular permit

has the potential to deprive the Board of opportunities to evaluate criteria in a more

comprehensive way across a water body The current structure also inevitably ties the

deliberation of a sitespecific criterion to the potential timing demands of a particular

permit transaction possibly depriving the Board of the opportunity to fully consider the

broader issues raised when evaluating whether to adopt a new criterion

Jdata FY05EPA RIWQ'me wqs toxicsltr wpd

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