## 4sSO

# Si 

# tra 6 

## UNITED 

## STATES ENVIRONMENTAL PROTECTION 

# AGENCY 0 

## Region 1 

### 041 5 

## Post Office 

## Square 

# BOSTON MA 021093912

November 302011
Brian 

### Kavanah Director Division 

### ofWater Quality 

## Management Bureau ofLand and Water Quality 

### Maine Department ofEnvironmental Protection 17 State 

### House Station 

### Augusta 

# ME 043330017 

# RE Proposed Revisions to 

### Maine Water Quality Standards 

### Dear

# Mr Kavanah

This letter responds to 

### your letter 

### ofOctober 

# 6 2011 in 

### which you request that

## EPA Region 1 provide 

### comments on certain 

### proposed revisions to

## Maines water quality standards 

# WQS in 

## 06096 

# CMR 584 Surface 

### Water Quality Criteria

### for Toxic Pollutants Specifically 

### your letter asked that 

### Region 1 

### concur with 

## Maines belief that particular revised 

## human health criteria forarsenic calculated using a

## 324 gramsday statewide fish 

### consumption rate are sufficient to ensure that sensitive subpopulations will not 

### be exposed to a cancer risk

### from arsenic 

### exposure greater than 

### one case perten thousand people 

# 104 In connection with this 

### question you requested that 

## EPA consider the existing provision in

## 06096 

# CMR 584 that allows the establishment 

### of more stringent sitespecific criteria 

### upon a demonstration that they are appropriate 

### Maine published the 

### proposed revision to its arsenic criteria forpublic

## comment on October 

## 122011

First I 

### would like to 

## commend Maine Department of

### Environmental Protection 

# DEP on updating the States 

### numeric 

## human health criteria for acrolein 

### and adopting criteria for 

### nonylphenol and diazanon for the protection 

### offreshwater 

### and saltwater aquatic life 

### These proposed criteria are consistent with 

## EPA recommendations 

## Our specific 

### comments below relate to

## Maines proposed revision to the States arsenic 

## human health criteria
Protection ofSensitive 

### Subpopulations 

## Maines proposed arsenic 

## human health criteria revision is 

### based on a 

### change to the cancer risk factor 

### used in calculating the arsenic water quality criteria established to protect 

## human health 

## Maines current cancer risk factor for establishing arsenic criteria is 

### one case per

### one million people

# 106 The proposed cancer risk factor forestablishing arsenic criteria is 

### one case perten thousand people

# 104 The other terms 

### used by Maine

1in calculating the water quality criteria for arsenic including those 

### used to estimate bioconcentration 

### ofarsenic in fish 

### and the rate 

### offish 

### consumption 

# FCRremain unchanged 

## EPAs general policy as explained in its 

### Methodology for Deriving 

### Ambient Water Quality Criteria for the Protection 

### of

## Human Health 

# 2000 EPA

# 822B00004 is that criteria for carcinogens should not 

### be set at a level that 

### would result in a cancer risk level greater than 

### 104 for sensitive subpopulations 

### While 

## Maines criteria are derived 

### based on a 

### nominal cancer risk factor 

### of 

## 104 

## EPA must consider afresh the appropriateness 

### ofthe other terms 

### Maine used 

## in concert with this

## new risk factor to calculate the 

### proposed arsenic criteria in orderto address 

## Maines question 

### whether the 

### proposed criteria in fact provide a 

### 104 level 

### ofprotection to sensitive subpopulations This is because 

## Maines new cancer risk factor eliminates a 100

### fold factor 

### ofconservatism that previously existed 

## when 

## EPA approved the 

# now current criteria 

### With respect to the 

# FCREPA notes thatthe 

### Maine Implementing

## Act as ratified 

### bythe federal 

### Maine Indian 

### Claims Settlement 

## Act specifically recognizes the reserved right 

### of the 

### Penobscot Nation 

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

### of their Indian reservations fortheir individual sustenance 

### There 

## may also 

### be other tribal uses that merit specific examination or further

### documentation to determine 

### whether there is 

### an identifiable population that is 

### making a use 

### ofwaters distinct 

### from that 

### ofthe general population 

### Forexample the Tribes 

### and other subpopulations 

## mayengage in fishing for their sustenance in waters outside the boundaries 

### ofthe tribal reservations 

### Foruse in these revised criteria 

## EPA does not believe that 

### Maine has adequately demonstrated that a statewide 

## FCR of

## 324 gramsday accurately reflects the 

### Maine Indian 

### Tribes rate 

### offish 

### consumption In particular 

## EPA does not believe that

### Maine has adequately demonstrated 

## how this 

## FCRwould protect the 

### Maine Indian 

### Tribes unique uses 

### ofthe waters in the State especially the right 

### ofthe 

### Penobscot Nation and the 

### Passamaquoddy Tribe to take fish fortheir individual sustenance

1 At present note that Maines 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 water quality standards program in these territories and 

## EPA has not made a specific finding that the State has jurisdiction to implement the water quality standards program in Tribal waters 

## EPA is taking no position 

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

### However even though the standards do not currently apply in the Indian territories it appears that they could have substantial effect on water quality in the Tribes territories and on the Tribes use ofwaters adjacent to their territories 

## EPA recognizes that there are significant disputes over the exact boundaries ofthe certain Indian reservations in Maine But under any scenario ofwhich 

## EPA is aware these water quality standards 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 

### Maines ability to consider and protect the Tribal 

### members right to fish for their individual sustenance 2

### Your October 

# 6 2011 letter references as the basis for

## Maines use 

### ofa statewide 

## FCR of 

## 324 grams per

### day a survey 

### ofrecreational anglers in 

### Maine conducted by ChernRisk in the 

## 19891990 fishing 

### season2 

## EPA believes that 

## Maines reliance solely 

### on that study is not justified in the context 

### ofdetermining an adequate level 

### ofprotection for the 

### Maine Indian 

### Tribes First the 

## ChemRisk study involved a survey 

### ofrecreational anglers 

### only and did not consider fish 

### consumption by persons

## who take fish for their individual sustenance 

# eg members ofthe 

### Maine Indian 

### Tribes 

## The ChemRisk study 

### was based 

### on a survey 

### ofanglers 

## who were required to obtain recreational fishing licenses 

### from the State 

### of

## Maine However the 

### Maine Indian Tribes 

### have asserted to 

## EPAduring consultation that 

## members ofthe 

### Penobscot Nation and the 

### Passamaquoddy Tribe are not required to obtain 

### such licenses 

### under state 

### law3 

## Bydefinition therefore 

## members of the 

### Penobscot Nation 

### and the 

### Passamaquoddy Tribe 

### were not included in the population 

### surveyed 

## Your October

# 6 2001 letter does indicate that

## some anglers ofNative 

### American heritage 

## who fish for recreational purposes 

### and 

## who are required to obtain a fishing license 

### from the State 

### were surveyed 

### by

## ChemRisk however that fact 

### does not address orcure 

## EPAs concerns 

### because there is 

### no indication the survey assessed subsistence tribal 

### consumers 

## Thus 

## EPA concludes that 

### Maine is not in possession 

### of adequate local orspecific data that 

### would support use 

### ofa 

## FCR of

## 324 gramsday in 

### combination with a cancer risk factor 

### of

## 104 as part

### ofthe determination 

### of an adequate level 

### ofprotection forthe 

### Maine Indian 

### Tribes subsistence fishing 

### use Your October 

# 6 2011 letter also states that 

## in the event that sensitive subpopulations 

### andor Maine itself 

### wish to pursue establishing 

### even more protective standards forspecific 

### waters additional protection is provided in the existing rule

## 06096 

# CMR584 Section

# 3B2 through the ability for parties to request establishment 

### ofsite specific 

## human health criteria 

### Given the absence 

### ofdata to sufficiently establish a

## FCRof

## 324 gramsdayin the context 

### of

## Maines proposed 

## new cancer risk factor 

## EPA does not agree that 

## Maines sitespecific revision 

### processallowing for the possibility 

### ofestablishing 

### more stringent 

## human health criteria 

### on a sitespecific 

## basiscan separately address 

# EPAs concerns Such an approach would transform

## Maines initial 

### burden 

## to establish that revised water quality criteria are sufficient to 

### protect the designated water

## uses 40 

## CFR 

# 1315a2 into a public

### burden to 

### submit data 

### and other information to the State demonstrating that 

### more stringent sitespecific criteria are 

### warranted Furthermore 

## EPA notes that 

### under Chapter 584 such sitespecific criteria could only 

### be developed 

## as part 

### ofa waste discharge license 

## proceeding Focusing on sitespecific criteria only in connection with a particular permit has the potential to deprive the State 

### ofopportunities to evaluate criteria in a 

### morecomprehensive 

## way across a water 

## body The current structure also

2 

### ChemRisk 1992 Consumption ofFreshwater Fish by Maine Anglers 

### A Technical Report Portland 

# ME ChemRisk a division ofMcLarenHart Revised July

### 24 1994

3 See Chapter 

### 201 Fishing on Waters under Jurisdiction ofMaine Indian Tribal State Commission 3inevitably ties the deliberation 

### ofa sitespecific criterion to the potential timing

### demands ofa particular permit transaction possibly depriving the State 

### of the opportunity to consider fully the broader issues raised

## when evaluating 

### whether to adopt a 

## new criterion

In

## summary 

## EPAbelieves that 

### Maine has not demonstrated that its current proposal to revise statewide arsenic criteria will 

### be protective 

### ofsensitive subpopulations to 

### no greaterthan a 

### 104 cancer risk level In deriving the 

### proposed criteria 

### Maine failed to consider adequately the exposure to arsenic

### of subsistence fishers that are 

## members ofthe 

### Maine Indian 

### Tribes the 

### Penobscot Nation and Passamaquoddy Tribe in particular 

## As already 

### noted 

## EPA also 

### does not believe that 

## Maines process forthe possibility 

### of establishing sitespecific criteria cures that 

### problem 

## New Science 

## New scientific evidence indicates that arsenic is a

### more potent carcinogen than 

### was previously 

### understood Currentnational 

## recommended water quality criteria 

### and the current 

## EPA IRIS cancer slope factor 

## as of

## November 2011 are 

### based on studies 

### which indicated risk 

### ofskin cancer 

### due to exposure to arsenic 

## Newer studies 

## however indicate that arsenic exposure also results in internal cancers such as bladder 

### and lung 

### cancer 

## The National 

### Research Council 

### and the 

## EPA Science 

### Advisory Board provided advice 

### on the assessment 

### of risks

### ofinorganic 

### arsenies recommending that the risk 

### of arsenic induced internal cancers 

### be included in evaluating the health effects 

### of arsenic 

### exposure 

## EPAs IRIS programhas published a draftevaluation 

### ofinorganic arsenic 

### httpyosemitcepagovisabsabproductnsffedrgstr 

## activitesRev20Tox20Revicw 20Inorte020ArsenicOperkDocument but it has not yet 

### been finalized 

### bythe 

## Agency Additionally well 

### sampling programs conducted in 

### Maine in 

### 199920006 and 200620077 indicate that a significant portion 

### ofMaine residents are already 

### exposed to elevated arsenic 

### due to high concentrations ofarsenic in private drinking water 

### wells 

## EPA recommends that

## DEP consult with local 

### and state environmental health officials regarding the potential forcumulative effects 

### ofarsenic 

### exposure to increase 

### under the 

### proposed criteria revision

4

## EPASAB07008 Advisory on

## EPAs Assessments ofCarcinogenic Effects ofOrganic and Inorganic Arsenic 

## A Report ofthe 

### US 

## EPA Science Advisory Board June

### 2007

s 

## EPASABI1003 Review of

## EPAs Responsiveness to

## SAS 2007 Recommendations for the Revision of Cancer Assessment of Inorganic Arsenic 

## A report ofthe

## SAB Inorganic Arsenic Cancer Review 

### Work Group March 

### 2011

6 Ayotte Joseph

# D eta 2003 Arsenic in Groundwater in Eastern 

### New England Occurrence Controls and 

### Human Health Implications Environ Sci Technol 

### 37 20752083

7

### Yang Qiang etal 

### 2009 Spatial Pattern ofGroundwater ArsenicOccurrence and Association with Bedrock Geology in GreaterAugusta 

### Maine Environ Sci Technol 

### 43 27142719 4

## Recommendations 

## EPA recommends that 

### Maine 

## DEP propose statewide arsenic criteria that

## DEP can demonstrate are protective 

### ofthe general population as well as the sensitive subpopulations in 

## Maine notably the

## Maine Indian 

### Tribes subsistence fishers 

### Such criteria should 

### be derived 

### from scientifically 

### sound values forthe different variables that 

### comprise the calculation ofthe criteria including but not limited

### to a supportable 

# FCR

In addition 

## EPA recommends that 

### Maine consider 

## new available science regarding the risk to 

## human health 

### due to arsenic exposure 

### and regarding the cumulative environmental exposure 

### ofMaine residents to arsenic 

# We look forward to continued cooperation with 

### Maine 

## DEP in developing water quality standards as a part 

### ofour responsibilities

### under the

# CWA Please contact 

## me or Ellen Weitzler

## 6179181582 of

## my staff if 

### you have any questions Sincerely

Stefien 

## J Silva 

### Chief Water Quality 

### Branch



## cc David Courtenmach Maine 

## DEP Andrew Smith Maine DI11

### IS Peter 

### Colosi

# NOAA Mary Colligan

# NOAA Laury Zicari 

# USFWS Tracy 

## Bone 

## EPA

5