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6 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

0 Region 1

041 5 Post Office Square

BOSTON MA 021093912

November 302011

Brian Kavanah

Director Division of Water Quality Management

Bureau of Land and Water Quality

Maine Department of Environmental 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 of October 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 Criteriafor Toxic

Pollutants Specifically your letter asked that Region 1 concur with Maines belief that

particular revised human health criteria for arsenic 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 per ten

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 site specific criteria upon a demonstration that they are appropriate

Maine published the proposed revision to its arsenic criteria for public 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 of freshwater 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 of Sensitive 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 for establishing

arsenic criteria is one case per ten thousand people 104 The other terms used by Maine

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in calculating the water quality criteria for arsenic including those used to estimate

bioconcentration of arsenic in fish and the rate of fish consumption FCR remain

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 of the other terms Maine used in concert with

this new risk factor to calculate the proposed arsenic criteria in order to address Maines

question whether the proposed criteria in fact provide a 104 level of protection to

sensitive subpopulations This is because Maines new cancer risk factor eliminates a

100 fold factor of conservatism that previously existed when EPA approved the now

current criteria

With respect to the FCR EPA notes that the Maine Implementing Act as ratified by the

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 for their 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 of waters distinct from that of the

general population For example the Tribes and other subpopulations may engage in

fishing for their sustenance in waters outside the boundaries of the tribal reservations

For use 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 of fish consumption In particular EPA does not believe that Maine

has adequately demonstrated how this FCR would protect the Maine Indian Tribes

unique uses of the waters in the State especially the right of the Penobscot Nation and

the Passamaquoddy Tribe to take fish for their individual sustenance

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At present note that Maines 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 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 of waters adjacent to their

territories EPA recognizes that there are significant disputes over the exact boundaries of the certain

Indian reservations in Maine But under any scenario of which 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

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Your October 6 2011 letter references as the basis for Maines use of a statewide FCR of

324 grams per day a survey of recreational 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 of determining an adequate level of protection for the Maine

Indian Tribes First the ChemRisk study involved a survey of recreational anglers only

and did not consider fish consumption by persons who take fish for their individual

sustenance eg members of the Maine Indian Tribes The ChemRisk study was based on

a survey of anglers who were required to obtain recreational fishing licenses from the

State of Maine However the Maine Indian Tribes have asserted to EPA during

consultation that members of the Penobscot Nation and the Passamaquoddy Tribe are not

required to obtain such licenses under state law3 By definition 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 of Native

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 or cure 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 or specific data that would support use of a FCR of 324 gramsday in

combination with a cancer risk factor of 104 as part of the determination of an adequate

level of protection for the 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 for specific waters additional

protection is provided in the existing rule 06096 CMR 584 Section 3B2

through the ability for parties to request establishment of site specific human

health criteria

Given the absence of data to sufficiently establish a FCR of 324 gramsday in the

context of Maines proposed new cancer risk factor EPA does not agree that Maines

sitespecific revision processallowing for the possibility of establishing 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 site specific criteria are warranted Furthermore EPA notes that under

Chapter 584 such sitespecific criteria could only be developed as part of a waste

discharge license proceeding Focusing on site specific criteria only in connection with

a particular permit has the potential to deprive the State of opportunities to evaluate

criteria in a more comprehensive 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 of McLarenHart Revised July 24 1994

3

See Chapter 201 Fishing on Waters under Jurisdiction of Maine Indian Tribal State Commission

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inevitably ties the deliberation of a site specific criterion to the potential timing demands

of a 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 EPA believes that Maine has not demonstrated that its current proposal to

revise statewide arsenic criteria will be protective of sensitive subpopulations to no

greater than 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 of the

Maine Indian Tribes the Penobscot Nation and Passamaquoddy Tribe in particular As

already noted EPA also does not believe that Maines process for the possibility of

establishing site specific criteria cures that problem

New Science

New scientific evidence indicates that arsenic is a more potent carcinogen than was

previously understood Current national recommended water quality criteria and the

current EPA IRIS cancer slope factor as of November 2011 are based on studies which

indicated risk of skin 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 of inorganic arsenies recommending that the risk of

arsenic induced internal cancers be included in evaluating the health effects of arsenic

exposure EPAs IRIS program has published a draft evaluation of inorganic arsenic

httpyosemitcepagovisabsabproductnsffedrgstr activitesRev20Tox20Revicw

20Inorte020ArsenicOperkDocument but it has not yet been finalized by the Agency

Additionally well sampling programs conducted in Maine in 199920006 and 200620077

indicate that a significant portion of Maine residents are already exposed to elevated

arsenic due to high concentrations of arsenic in private drinking water wells EPA

recommends that DEP consult with local and state environmental health officials

regarding the potential for cumulative effects of arsenic exposure to increase under the

proposed criteria revision

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EPASAB07008 Advisory on EPAs Assessments of Carcinogenic Effects of Organic and Inorganic

Arsenic A Report of the US EPA Science Advisory Board June 2007

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EPASABI1003 Review of EPAs Responsiveness to SAS 2007 Recommendations for the Revision of

Cancer Assessment of Inorganic Arsenic A report of the SAB Inorganic Arsenic Cancer Review Work

Group March 2011

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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 et al 2009 Spatial Pattern of Groundwater Arsenic Occurrence and Association with

Bedrock Geology in Greater Augusta Maine Environ Sci Technol 43 27142719

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Recommendations

EPA recommends that Maine DEP propose statewide arsenic criteria that DEP can

demonstrate are protective of the 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 for the different variables that

comprise the calculation of the 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 of Maine residents to arsenic

We look forward to continued cooperation with Maine DEP in developing water quality

standards as a part of our 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 DI11IS

Peter Colosi NOAA

Mary Colligan NOAA

Laury Zicari USFWS

Tracy Bone EPA

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