PIERCE ATWOODn

August 7 2014

VIA US MAIL AND EMAIL dankuznierzoenobscotnationorg

Dan Kusnierz

Penobscot Water Resources Program Manager

Penobscot Nation Department of Natural Resources

12 Wabanaki Way

Indian Island ME 04468

MATTHEW D MANAHAN

Merrills Wharf

254 Commercial Street

Portland ME 04101

P 2077911189

F 2077911350

C 2078074653

mmanahanpierceatwoodcom

pierceatwoodcom

Admitted in MA ME NH

Re Penobscot Nation Proposed Surface Water Quality Standards

Dear Mr Kusnierz

On behalf of a coalition of companies and municipalities with interests in the Penobscot

River watershed thank you for the opportunity to comment on the Penobscot Nations

Proposed Surface Water Quality Standards the Standards Our coalition opposes

adoption of the Standards for the following reasons

Penobscot Nation Jurisdiction

First the Penobscot Nation does not have jurisdiction over the waters that the Standards

purport to regulate According to Section 102 the Standards would apply to all Penobscot

Waters According to Section 10326 the term Penobscot Waters means all surface

waters that are within or bordering upon the Nation The Nation is defined in Section

10325 as all land and waters within the Penobscot Indian Reservation and all land

and waters acquired by the United States and held in trust on behalf of the Penobscot

Nation In Table 1 the Standards list the specific waters that would be subject to the

Penobscot Nations regulation Those waters include the main stem of the Penobscot River

above the Milford Dam and portions of the East Branch of the Penobscot River and various

other branches and tributaries of the Penobscot River

1

The coalition includes the following entities City of Brewer Town of Bucksport Covanta

Maine LLC Town of East Millinocket Great Northern Paper Company LLC Guilford

Sangerville Sanitary District Town of Howland Kruger Energy USA Inc Town of Lincoln

Lincoln Paper and Tissue LLC Lincoln Sanitary District Town of Mattawamkeag Town of

Millinocket Town of Orono Red Shield Acquisition LLC True Textiles Inc Veazie Sewer

District and Verso Paper Corp

PORTLAND ME BOSTON MA PORTSMOUTH NH PROVIDENCE RI AUGUSTA ME STOCKHOLM SE WASHINGTON DC

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Waters bordering the Penobscot Indian Reservation or Penobscot Indian Territory trust

lands are not within the jurisdiction of the Penobscot Nation For this reason the

Standards may not regulate activities occurring on or affecting the main stem of the

Penobscot River or portions of the East Branch of the Penobscot River and various other

branches and tributaries of the Penobscot River See eg 30 MRS § 62038 Penobscot

Indian Reservation includes as relevant only Indian Island and certain other islands

Thus the Standards exceed the regulatory authority of the Penobscot Nation

Treatment as a State Status

Second Section 102 states that the Standards will be effective for purposes of the Clean

Water Act CWA if and to the extent they are approved by EPA pursuant to Clean Water

Act § 303c The Penobscot Nation however does not have the necessary regulatory

authority to receive Treatment as a State TAS status under Section 518 of the CWA 33

USC § 1377 so EPA may not approve the Standards pursuant to Section 303c

Section 518 of the Clean Water Act is the provision authorizing Indian tribes to be treated

as states for certain purposes including for purposes of administering their own waste

discharge licensing programs It is clear from the language of the Maine Indian Claims

Settlement Act MICSA and the Maine Implementing Act MIA and the language and

legislative history of Section 518 that the TAS provisions do not apply to the Maine Tribes

The legislative history of Section 518 in fact expressly states Congresss intention that the

Maine Tribes are not eligible to be treated as States for regulatory purposes

The Maine Tribes are not eligible for TAS status because they are subject fully to the

jurisdiction of the State of Maine except in regard to internal tribal matters Within the

State of Maine therefore there are no lands or waters for which an Indian tribe could

obtain TAS status develop its own water quality standards and implement a National

Pollutant Discharge Elimination System NPDES permitting program The First Circuit has

held that regulation of water resources is not an internal tribal matter See Maine v

Johnson 498 F3d 37 46 15` Cir 2007

The MICSA also provides that any federal law passed after October 10 1980 which would

preempt or even affect the application of State law within Maine must be made

specifically applicable within Maine to be effective in the State 25 USC § 1735b This

provision prevents the application of the TAS provisions of the CWA to any Maine tribe This

is because 1 those provisions were enacted in 1987 well after the Maine Settlement 2 the TAS provisions are not specifically made applicable to the Maine tribes and 3 they

would affect or preempt the application of Maine laws See also 25 USC § 1725h

In short the assumption in Section 102 that EPA may approve the Standards pursuant to

CWA Section 303c is in error

Sustenance Fishing

Third Table 1 identifies sustenance fishing as a designated use The only waters in which

members of the Penobscot Nation may take fish for their individual sustenance however

are those within the Penobscot Indian Reservation sustenance fishing outside those waters

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is illegal See 30 MRS § 62074 None of the waters purported to be regulated by the

Standards is within the Penobscot Indian Reservation Thus sustenance fishing may not be

included as a designated use

Problems with Specific Proposed Standards

Fourth there are numerous specific narrative and numeric provisions of the Standards that

are unclear inconsistent with existing state standards and inappropriate for use on the

Penobscot River and its tributaries and branches Conflicts with Maine DEPs standards and

the resulting confusion for licensed Maine dischargers will be numerous and significant No

amount of mediation or conflict resolution can resolve the fundamental inconsistencies

between designated uses and the criteria employed to protect those uses A few examples

are provided below

In the Purpose section Section 101 it is stated that the Standards would promote

the propagation of native and other desirable aquatic plant and animal life Aquatic

plant and animal life which may be desirable for the Penobscot Nation to promote

may be undesirable under Maine water quality standards For example Maine water

quality standards are generally designed to protect indigenous fish and other aquatic

species State fishery management plans are based on this premise

Section 101 also refers to future beneficial uses of Penobscot waters It is not clear

what future beneficial uses are intended to be protected and again protection of

such uses without further specificity will likely present conflicts with State

regulation of waters

In the applicability section Section 102 it is noted that the Standards apply to all

persons and all activities within the Penobscot Nation This does not provide

guidance as to which specific activities may be regulated and is much broader than

activities regulated under State water protection and improvement laws

In the definition of point source Section 10329 many exemptions contained in

State law are not included For example erosion related to agricultural activities

meeting certain conditions aquaculture operations and oil and hazardous substance

spill response discharges are not included

In Section 105B8b it is noted that revised standards shall become effective

upon approval by the Penobscot Nation Chief and Tribal Council Water quality

standards and revisions require approval of the EPA prior to taking effect

In Section 201D Antidegradation Policy the Standards provide that certain high

quality waters may be designated as Outstanding Tribal Resource Waters This

designation and prohibition on degradation for any reason may conflict with the

State of Maines management goals for the same rivers or lakes

In Section 202A5 the Standards require the highest and best degree of

wastewater treatment practicable The Penobscot Nations best professional

judgment as to the highest and best degree of wastewater treatment practicable

may differ from Maine Department of Environmental Protection or US EPA judgment

as to best practicable treatment thereby creating significant uncertainties for

dischargers

In Section 202A6 it is noted that the Water Resources Program will develop water

quality based effluent based limitations There is no mention of the assumptions

that would be used to develop such effluent limitations including calculation of flows

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dilution factors multiple discharger inputs etc all of which are necessary to

understand the derivation of such effluent limitations

In Section 202A13 it is noted that the Water Resources Program will determine

whether in stream flows and water levels are adequate to support designated uses

The existing water flows are extensively regulated by the State of Maine and

existing uses and permits could be significantly impacted by any changes in flows

made by the Penobscot Nation

In Section 301C it is specified that human health criteria will be based on a fish

ingestion rate of 286 gramsday and a cancer risk level of 1X106 The 286

gramsday fish ingestion rate is apparently derived from a 2009 Exposure Scenario

EPAs latest studies on fish consumption do not support an ingestion rate of 286

gramsday even for the highest consumers In addition Tribal standards apply a

cancer risk level of 1X106 which is designed to protect statewide populations not a

population of the highest fish consumers This doubly conservative approach to

deriving human health criteria will create the potential for dischargers to exceed

several human health criteria currently not considered potential violations under

Maine DEPs wastewater permitting analysis An example of adjustment for high fish

consumption and risk level was made in the recent Maine DEP arsenic rule revisions

In that arsenic rule EPA adjusted the fish consumption rate to 138 gramsday

which is the 99th percentile of licensed Maine anglers but adjusted the risk factor

to 1 in 10000

The proposed temperature standard in Section 302 conflicts with the temperature

standards in DEP Chapter 582 in that they do not provide for sitespecific

temperature criteria

Section 3 of the Standards appears to prohibit any filling or alteration of wetlands

even if the filling or alteration is approved by US Army Corps of Engineers or the

Maine DEP under wetland permitting statutes

In Section 401 under Primary Human ContactsCultural and Ceremonial Designated

Uses a chlorophyl a concentration of 8 pgL is prescribed It is unclear where this

concentration derived from but it is inconsistent with any state published criterion

for Maine waters Similarly it is not clear where the other concentrations listed in

Section 40163 are derived from Of particular concern are the criteria for total

inorganic nitrogen and mercury because they have no counterparts under Maine

regulation Similarly Maine does not have specific instream numeric criteria for

DDT PCBs and selenium DDT and PCBs may be legacy pollutants with no current

discharges yet these standards would prohibit exceedance of the numeric criteria

listed

In Section 401E under High quality Cold Water Fishery Designation it is not clear

what the pH range should be because the pH range referenced is 66 to 88 while in

the acute and chronic criteria appendices pH is listed as a range of 5 to 9

These are just a sampling of inconsistencies between the Standards and existing Maine

water quality standards Application of the Standards to licensees will create additional

conflicts and confusion for licensed dischargers

++++++++++++

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Thank you for your consideration of these comments Please include me on the Penobscot

Nations list of persons who may be interested in or affected by proposed adoption or

revisions to the Standards Please also provide me with a copy of the Penobscot Nations

response to comments on the Standards

Sincerely

Matthew D Manahan

cc Patricia Aho Maine DEP

Michael Kuhns Maine DEP

Gerald Reid Maine AG

Curt Spalding EPA

Deb Szaro EPA

Kenneth Moraff EPA

Nancy Grantham EPA

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