UNITED STATES ENVIRONMENTAL PROTECTION AC4ENCY

REION I

February 2 2015

Patricia W Aho Commissioner

S POST OFFICE SQUARE SUITE 1.00

BOSTON MASSACHUSE1TS 02JOq 3qJ2

Maine Department of Environmental Protection

17 State House Station

Augusta ME 04333 0017

Re Review and Decision on Water Quality Standards Revisions

Dear Commissioner Aho

By letter of January 14 2013 the Maine Department of Environmental Protection DEP

submitted revisions of the State's surface water quality standards WQS to Region 1 of the

United States Environmental Protection Agency EPA or Region for review and approval

or disapproval The revisions were adopted by the DEP on July 13 2012 By letter to EPA

dated January 9 2013 Maine's Assistant Attorney General in the Natural Resources Division

certified the revisions as having been duly adopted pursuant to state law By letter of May 16

2013 EPA approved the revision to the arsenic criteria to protect human health in state waters

outside of Indian territories and lands but did not act on the arsenic criteria for waters in Indian

territories and lands In the approval letter EPA also indicated that the additional revisions

submitted by DEP were still under review

I commend DEP for the 2012 adoption of revisions to its water quality standards that

strengthen the ability to protect Maine's waters including the adoption of new aquatic life

criteria for acrolein diazinon and nonylphenol

DEP submitted additional revisions of the State's surface water quality standards to the Region

for review and approval or disapproval by letter of February 27 2014 The revisions were

certified on February 26 2014 by Maine's Assistant Attorney General in the Natural

Resources Division as having been duly adopted pursuant to state law Before now EPA had

not acted on any of these revisions for any waters in Maine

ln both of the above referenced submission letters DEP requested that EPA approve Maine's

WQS in Indian territories and lands Indian lands As discussed in the attached Decision

Support Document Attachment AEPA has concluded that the State of Maine has the

authority to adopt WQS that are applicable to waters in Indian lands Accordingly EPA is

herein responding to the remaining unapproved elements of the 2013 and 2014 WQS revisions

for waters throughout the State including in Indian lands

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In addition to the 2013 and 2014 submissions DEP submitted numerous WQS revisions to

EPA from August 26 2003 through July 8 2011 for review and approval or disapproval 1 In

EPA's letters approving WQS revisions contained in those submissions EPA noted that it was

not taking action on the WQS with respect to any waters in Indian lands In light of EPA's

determination that the State of Maine has the authority to adopt WQS for waters in Indian

lands EPA is herein responding to those WQS revisions for those waters 2

Many of the WQS revisions under review for approval or disapproval for waters in Indian lands

are water quality criteria and the Clean Water Act CWArequires that criteria be protective

of designated uses As discussed in the Decision Support Document EPA has not yet approved

any WQS including designated uses for waters in Indian lands

Therefore in order to evaluate whether the submitted criteria are protective of designated uses

EPA must first approve designated uses for these waters Accordingly EPA is herein

approving Maine's surface water classifications and corresponding designated uses for waters

in Indian lands Because EPA has not previously approved these WQS for waters in Indian

lands EPA considers them to be new WQS as applied to such waters EPA is also approving

38 MRS 6207 4 and 9 a provision of the Maine Implementing Act or MIA which

settled the Maine Indian land claims as a matterof Maine law as an explicit designated use for

certain waters in Indian lands

The following paragraphs state EPA's decisions on Maine's new and revised WQS described

above The decisions include approvals and disapprovals and the detailed explanations for the

decisions are provided in Attachment A EPA has also identified several provisions that EPA is

not taking action on primarily because DEP is planning to update them soon and some

provisions that EPA is not taking action on because we have concluded that they are not WQS

requiring EPA review and approval these are also explained in Attachment A EPA is not

responding to new or revised Maine WQS other than those explicitly identified in this letter

Approvals

Pursuant to Section 303c 3 of the Clean Water Act and 40 CPR part 131 I hereby approve

the following new or revised WQS

Classifications and Designated Uses

Forall waters in Indian lands

• Maine's standards for classification and corresponding designated uses in 38 MRS

465 lA 2A 3A and 4Afor fresh waters 465Al A for great ponds and

natural lakes and ponds less than 10 acres in size and impoundments of rivers that are

1 A list of these submissions is provided in Section 4.10 of Attachment A 2 Maine's July 8 2011 submission was for EPA's review of a reclassification of the Kennebec River Although

EPA's July 20 2011 letter approving the reclassification included the caveat about not acting with respect to

waters in Indian lands the Kennebec River is nowhere near Indian lands Therefore EPA is taking no further

action today with respect to that submission

3 EPA intends to review and approve or disapprove all remaining Maine WQS that could apply to waters in Indian

lands such as dissolved oxygen criteria definitions antidegradation provisions etc as soon as possible

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defined as great ponds pursuant to 38 MRS 480B including the definition of

great ponds in 38 MRS 480B5 and 465BlA 2A and 3A for

estuarine and marine waters

• The classification of specific waters in 38 MRS 467 Classification of major river

basins and 468 Classification of minor drainages and 469 Classification of

estuarine and marine waters

• The addition of agriculture as a designated use to fresh waters Classes AA A B C and

GPA submitted to EPA on August 26 2003 and

• The reclassifications submitted to EPA on December 7 2009 of Otter Creek a

tributary of Seboeis Stream Alder Stream and South Branch Stream a tributary to the

Mattarniscontis Stream from Class B to Class A and of Grand Falls Flowage between

Route l Princeton and Indian Township and Black Cat Island from Class B to Class

GPA

Criteria

For waters throughout the State of Maine including in Indian lands the following water quality

criteria provisions contained in DEP Rule Chapter 584 Surface Water Quality Criteriafor

Toxic Pollutants Appendix A submitted to EPA on January 14 2013

• Freshwater and marine aquatic life criteria for diazinon and nonylphenol

• Freshwater aquatic life criteria for acrolein

• Corrections of Federal Register CitesSources in Tables I and II of Appendix A clarifications in footnote II in Table I and footnotes A and C and Additional Note 4 in

Table II and

• Footnote aME in Table I of Appendix A except for the first sentence related to arsenic

which EPA is taking no action on

For all waters in Maine except for waters in Indian lands the following water quality criteria

contained in DEP Rule Chapter 584 Surface Water Quality Criteria forToxic Pollutants

Appendix A submitted to EPA on January 14 2013

• Human health criteria for the consumption of water plus organisms for acrolein and

• Human health criteria for the consumption of organisms only for acrolein and phenol

For all waters in Indian lands the following water quality criteria provisions

• The provision regarding dissolved oxygen measurement requirements in riverine

impoundments contained in 38 MRS 464 13 submitted to EPA on August 26

2003

• Aquatic life criteria provisions in 38 MRS 420 1BAl lBCl BD and 1

BE submitted toEPA on May 14 2004 except for revisions made at in 38 MRS

420 1BCl and lBC2that describe the state regulatory procedures for

establishing sitespecific bioaccumulation factors and which are not WQS see below

• The Classification Attainment Evaluation Using Biological Criteriafor Rivers and

Streams contained in DEP Rule Chapter 579 submitted to EPA on May 14 2004

• All provisions of DEP Rule Chapter 584 Surface Water Quality Criteriafor Toxic

Pollutants including Appendix A submitted to EPA on January II 2006 except for

• All human health criteria in Appendix A which EPA is disapproving see below

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• the ammonia aquatic life criteria in Appendix A and 7C on which EPA is taking no

action at this time see below and

• provisions which are not WQS see below

• The 30day average dissolved oxygen criterion of 6.5 ppm for certain Class C waters

contained in 38 MRS 465 4Bsubmitted to EPA on January 11 2006

• The instream design flows for the application of water quality criteria for aquatic life

and human health protection which are consistent with EPA's current guidance IQ10

low flow for acute aquatic life criteria 7Q10 low flow for chronic aquatic life criteria

and harmonic mean flow for human health criteria contained in DEP Rule Chapter

530 4B submitted to EPA on January 11 2006 and

• Revisions at 38 MRS 465 3C2 and 465 B2C enacted in Chapter 291 LD

1274 An Act to Allow the Discharge of Aquatic Pesticides Approved by the

Department of Environmental Protection for the Control of Mosquito borne Diseases in

the Interest of Public Health and Safety submitted to EPA on April 8 2008

General

For all waters in Indian lands

• The provisions in 38 MRS 464 3B that ensure that a hearing will be held at least

once every three years for the purpose of reviewing Maine's water quality standards

and revising them as appropriate consistent with 40 CFR 131.20 submitted to EPA

for review on May 14 2004

Disapprovals

Pursuant to Section 303 c3 of the CWA and 40 CFR part 131 I hereby disapprove the

following new and revised water quality standards

For all waters in Indian lands

• The mercury human health criteria revision at 38 MRS 420 1BA2 submitted to

EPA May 14 2004

• All human health criteria in DEP Rule Chapter 584 Surface Water QualityCriteriafor

Toxic Pollutants Appendix A submitted to EPA on January I l 2006 and

• Human health criteria revisions related to arsenic acrolein and phenol in DEP Rule

Chapter 584 Surface Water Quality Criteriafor Toxic Pollutants Appendix A and the

last sentence in Ch 584 5C related to the fish consumption rate submitted to EPA

on January 14 2013

Revisions for Which EPA is Not Making a Decision at This Time

EPA is not deciding to approve or disapprove the following new or revised WQS at this time

For all waters in Indian lands

• The ammonia criteria for protection of aquatic life in DEP Rule Chapter 584 Appendix

A submitted to EPA on January 11 2006

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• The recreational bacteria numeric criteria for the protection of primary contact

recreation for Class Band C waters in 38 MRS 465 3B and 4Bsubmitted to

EPA on January 11 2006

• The revisions made in LD 1450 at 38 MRS 465B2B and 3B which extended

the applicability of the bacteria criteria for Class SB and Class SC waters to include

bacteria of domestic animal origin submitted to EPA on January 11 2006 and

• The first sentence of Footnote aME in Table I of Appendix A and the last sentence in

Ch 584 4 the cancer risk level to be used to calculate human health criteria for

inorganic arsenic

For all waters throughout Maine including in Indian lands

• The revision made in LD 1304 at 38 MRS 464 4A3a and 465 3C1 and

4Crelated to certain pesticide discharges submitted to EPA on January 11 2006

• The revisions made in LD 1304 at38 MRS 465 3B and 4B which extended

the applicability of the bacteria criteria for Class B and Class C waters to include

bacteria of domestic animal origin submitted to EPA on January 11 2006

• The revision made in LD 1778 at 38 MRS 465AlB which extended the

applicability of the bacteria criteria for Class GPA waters to include bacteria of

domestic animal origin submitted to EPA on April 8 2008

• The phenol criteria for the protection of human health consumption of water plus

organisms in DEP Rule Chapter 584 Appendix A submitted to EPA on January 14

2013 and

• The revision made in LD 1430 at 38 MRS 464 4A3brelated to certain

pesticide discharges to tributaries of GPA waters submitted to EPA on February 27

2014

For waters outside of waters in Indian lands

• The reclassification of a 0.3 mile segment of Long Creek that flows through Westbrook

from Class B to Class C submitted to EPA on December 7 2009

Revisions That are not WQS and do Not Require an EPA Decision

I have concluded that the following revisions which relate to exemptions from discharge

prohibitions testing and licensing provisions related to discharges updates of federal statutory

and regulatory references and procedural provisions that establish processes for adopting

alternative criteria and establishing sitespecific bioaccumulation factors are not water quality

standards requiring EPA review and approval or disapproval

• Revisions made at 38 MRS 465 lC2 and 2C2enacted as Chapter 574 LD

1833 An Act to Amend Water Quality Laws to Aid in Wild Atlantic Salmon

Restoration submitted to EPA on May 14 2004

• Revisions made at 38 MRS 420 1BB related to discharger compliance submitted

to EPA on May 14 2004

• Revisions made at in 38 MRS 420 1BCl and lBC2 that describe the state

regulatory procedures for establishing sitespecific bioaccumulation factors submitted

to EPA on May 14 2004

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• Revisions made at 38 MRS 361Al J and 1K enacted as Chapter 330 LD

1588 Sections 7 and 8 which updated the definitions of Code OfFederal Regulations

and Federal Water Pollution Control Act to include their amendments through

January 1 2005 submitted to EPA on January 11 2006

• Revisions made at 38 MRS 464 4Al c and d 465 lC3and 2C3

and 465AlCenacted as Chapter 182 LD 1304 An Act Concerning Invasive

Species and Water Quality Standards submitted to EPA on January 11 2006

• Revisions made at DEP Rule Chapter 584 3 submitted to EPA on January 11 2006

regarding adoption procedures for alternative statewide and site specific criteria This

includes the requirement in Chapter 584 3A2 that statewide criteria must be

initiated in accordance with the petition for rulemaking provisions of the State

Administrative Procedures Act 5 MRSASection 8055 the provision in the first

paragraph of Chapter 584 3B that site specific criteria must only be adopted by the

Board as part of a waste discharge license proceeding pursuant to 38 MRSA Sections

413,414 and 414A and the first two sentences of the second paragraph of Chapter

584 3B • Revisions made at 38 MRS 464 4Al e 465 1C4 and 2C4 465

AlC4 and 465BlC2enacted as Chapter 291 LD 1274 An Act to Allow

the Discharge of Aquatic Pesticides Approved by the Department of Environmental

Protection for the Control of Mosquito borne Diseases in the Interest of Public Health

and Safety submitted to EPA on AprilS 2008

• Revisions made at 38 MRS 420 1BF and 46441 and K related to testing

and licensing requirements for waste discharges that were included in LD 515

submitted to EPA on January 14 2013 and

• Revisions made at 38 MRS 464 4Alf 465 1C5 and 2C5 465 A

lC5and 465BlC4enacted as Chapter 193 LD 1430 An Act to Clarify

the Permitted Use of Aquatic Pesticides submitted to EPA on February 27 2014

EPA looks forward to continued cooperation with Maine in the development review and

approval of water quality standards pursuant to our responsibilities under the Clean Water Act

EPA would like to begin discussions with DEP as soon as possible about the criteria that EPA

is disapproving and those about which EPA is making no decision EPA will contact you next

week to schedule such discussions In the meantime please contact Ellen Weitzler at

weitzlerellenepa gov or 617918 1582 if you have any questions

JjJe1 4

Regional Administrator

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