# 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 forthe opportunity to 

## comment on the 

### Penobscot Nations Proposed Surface 

### Water Quality 

### Standards 

## the

## Standards Our coalition 

### opposes adoption of the 

### Standards forthe 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 behalfof 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 ofthe 

### 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 KrugerEnergy 

# 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

## Dan Kusnierz 

### August 

# 7 2014 Page 2


### Waters bordering the 

### Penobscot Indian Reservation or

### Penobscot Indian Territory

### trust lands are not within the jurisdiction ofthe 

### Penobscot Nation For this 

### reason the 

### Standards 

## may not regulate activities occurring 

## on oraffecting the 

### main stem of the 

### Penobscot River or portions ofthe 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 ofthe 

### Penobscot Nation
Treatment as a State Status 

## Second Section 

### 102 states that the 

### Standards will 

### be effective for

### purposes ofthe 

### 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

# CWA33 

# 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 forcertain 

### purposes including for

### purposes ofadministering their

## own waste discharge licensing 

## programs It is clear 

### from the 

### language ofthe 

### Maine Indian 

### Claims Settlement Act

# MICSAand the 

### Maine Implementing Act

# MIA and the 

### language and legislative history ofSection 

### 518 that the 

## TAS provisions 

### do not 

### apply to the 

### Maine Tribes The legislative history ofSection 

## 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 ofthe 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 ofState law within 

### Maine mustbe 

## made specifically applicable within 

### Maine to 

### be effective in the 

### State 25

# USC §

# 1735b This provision 

### prevents the application ofthe 

## 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

## mayapprove 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 fortheir individual 

### sustenance 

## however are

### those within the 

### Penobscot Indian 

### Reservation sustenance fishing outside 

### those waters
W43955452

## Dan Kusnierz 

### August 

# 7 2014 Page 3

is illegal 

### See 30

# MRS §

# 62074 None ofthe 

### 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 ofthe 

### 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 

## Afew 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 

## maybe desirableforthe 

### Penobscot Nation to 

### promote 

## maybe 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 

## maybe regulated 

### and is

## much broaderthan 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 ofthe 

### EPA priorto 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 EPAjudgment 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 W43955452

## Dan Kusnierz 

### August 

# 72014 Page 4

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 byanychanges 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 forthe highest

## consumers In 

### addition Tribal 

### standards applya 

### cancer risk level of

## 1X106 which is 

### designed to protect 

### statewide populations not a population ofthe highest fish 

## consumers This 

### doubly conservative 

### approach to deriving 

## human health criteria will create the potential fordischargers 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 oflicensed 

### Maine 

## anglers but adjusted the riskfactor to 1 in 

## 10000 The proposed temperature standard in Section 

### 302 conflicts with the 

### temperature standards in 

## DEP Chapter582 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 ArmyCorps of 

### Engineers orthe 

### Maine 

## DEP underwetland permitting statutes In Section 

## 401 under

## PrimaryHuman 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 HighqualityCold 

### 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 ofinconsistencies 

### between the 

### Standards and existing 

### Maine water quality 

### standards Application ofthe 

### Standards to licensees will create additional conflicts 

### and confusion for licensed 

### dischargers


# ++++++++++++

w43955452

## Dan Kusnierz 

### August 

# 7 2014 Page 5


### Thank you for 

### your consideration of these 

## comments Please include 

## meon 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

W43955452