## 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 

# MrWardwell

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 

### ofambient water quality criteria for the protection 

### of

## human health 

### from 6.5 

# gday to 32.4 

# gday
Because this 

### change will 

### improve protection forpeople that 

## consume fish taken 

### from Maine's waters 

## EPA had originallyindicated 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 

# 3

# B2 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 

# 3

# B2 might be interpreted in the future 

# We want to clarify the 

### Agency's views 

### on several issues to avoid misunderstandings during the 

### development ofa sitespecific criterion 

## At present Maine's state 

### water quality standards are not applicable to the waters 

### ofthe 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

Toll Free •1 888372 7341 lntemet Address 

### UAL • http

### lwwwepagov region1 Recycled Recyclable • Printed with Vegetable Oil Baaed Inks on Recycled Paper Minimum 

## 30 Postconsumercertain Indian reservations in 

## Maine But under any scenario 

### ofwhich 

## 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 

### ofEcosystem Protection


### Attachment

# EPA

# NEW ENGLAND 

# COMMENTS 

# ON MAINE'S 

# CHAPTER 584 

# 1 Section 

### 3

# B2 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 

## use

# s is distinct 

### from that 

### ofthe population considered 

## when establishing the statewide criteria 

### Maine state 

### law supplies this step 

### ofthe analysis for certain tribal 

### uses 

## The Maine hnplementing 

## Act as ratified 

## bythe federal 

### Maine fudian 

### Claims Settlement 

## Act specifically recognizes the reserved right 

### ofthe Penobscot 

### Nation and Passamaquoddy Tribe to take fish within the boundaries 

### oftheirfudian reservations for their individual 

### sustenance a 

### use that has not already 

### been addressed 

### in the statewide criteria under 

### Chapter 

## 584 30

# MRS

# A 6207

# 4 25

# US

# C 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 

### ofa water distinct 

### from that 

### ofthe population considered 

## when establishing the statewide criteria under 

### Chapter 

## 584 For

## example the Tribes 

### and other populations 

## mayengage in fishing fortheir sustenance in waters outside the boundaries 

### ofthe 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 

# 3

# B2

## ofChapter

## 584 The 

## EPA Methodology at section 4.3.3.1 

# pp

# 424 to

# 428 provides the following hierarchy 

### ofpreference for the type 

### ofconsumption 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 similar

### geography 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 ratherthan a hierarchical 

### recommendation ofpreference It appears that the State starts at the top 

### ofthis hierarchy 

### and if there are 

### no local data available then the inquiryinto 

## how to protect the local use ceases 

## As a resultthe 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 

### ofsuch data 

### need not preclude use 

### ofother 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

### dayas the statewide fish 

### consumption value 

## As noted in 

## comment 

# 1 above it appears 

## Maine law already recognizes the 

### Tribes use 

### ofwaters for sustenance fishing therefore it 

### becomes especially important to anticipate 

## how the 

### Board will 

### approach setting sitespecific

## 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 

### gramsper

## day into 

### Chapter 584 as the value to use in 

### an analysis 

### ofa 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 

# EPA822

# B00004 

## EPA's Methodology the guidance incorporated into section 

# 3

# B2 ofchapter 

## 584 In the absence 

### ofother 

### 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 

# 3

# B2 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 

## of142.4 grams per

### day is the value that 

### would apply in the absence 

### of

## more 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 

### ofthe 

## use especially sitespecific 

### data But providing a default value forthe analysis 

### ofsite specific criteria for subsistence fishers 

### would substantially simplifyfuture permitting actions 

### where 

## more specific data are not available 

# 4 Section 

# 3

# B2a addresses studies 

### developed to assess these 

### unique uses 

## The latest version 

## ofChapter 584 includes a 

## new provision at the 

### end of this section 

# A plan 

### of study 

### mustbe submitted to the 

### Department for review 

### and approval prior to the 

### beginning ofthe 

### studies 1 It is not clear 

### on the face 

### ofthe 

### proposed regulation 

## how this provision is intended to 

### operate This subsection appears to require the 

### Board to consider 

### such



# preapproved

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 

# 3

# B2a 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

# MRS

# A 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 

# 3

# B2a 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 ofthe 

### studiesshould 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 

### ofany study submitted for its consideration 

## preapproved ornot 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 scientifically 

### sound data solely 

### because the 

### Department has not



# preapproved

the study 

### plan If for

### example 

## EPA ora Tribe has 

### produced a solid 

# peerreviewed
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

### orevidentiary 

### weight ofthat 

### study Similarly

## EPA's default values provide a reasonable basis for estimating the 

### consumption rates 

### ofsubsistence fishers 

### even though no particular state 

## preapproved the 

## EPA's survey 

### ofthe 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 

# 3

# B requires the 

### Board to adopt sitespecific criteria 

### onlyas part 

### of a 

### waste discharge license 

### proceeding 

## EPAurges 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 ofopportunities to evaluate criteria in a 

## more comprehensive 

## way across a water 

## body The current structure also inevitably tiesthe deliberation 

### ofa sitespecific criterion to the potential timing 

### demands ofa 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