STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

PAUL R LE PAGE PATRICIA lAf AHO

GOVERNOR COMMISSIONER

May 30 2012

ChiefBrenda Commander

Houlton Band of Maliseet Indians

88 Bell Road

Littleton Maine 04730

Dear Chief Commander

Thank you for your letter of May 10 2012 regarding changes to 06096 CMR Chapter 584 Surface

Water Quality Criteria for Toxic Pollutants and for your and your staffs participation in the rulemaking

process This rulemaking effort addressed important issues for Maine residents and we were fortunate to

have the involvement of numerous parties with varied perspectives in meeting this challenge I look

forward to meeting with you on June 8 2012 if that date works with your schedule to discuss your

concerns and our ongoing working relationship In the interim I offer the following thoughts

As you are aware this rulemaking was initiated in response to PL 2011 c194 An Act to Review State

Water Quality Standards which required the Department to use a revised cancer risk factor in

calculating human health criteria for inorganic arsenic Though the revised risk factor was within

USEPA guidelines commenters including USEPA itself expressed concern that the criteria must ensure

that sensitive subpopulations are not exposed to cancer risk level greater than one in 10000 and that the

criteria should be derived from scientifically sound values for the different variables that comprise the

calculation of the criteria In response the Department reviewed methodologies used for establishing

inorganic arsenic criteria in other states and USEPA regions determined to be protective of sensitive

subpopulations This involved review of and revisions to several underlying parameters used in

calculating the human health criteria

The Departments intention was to utilize more current and scientifically valid information in

calculating revised criteria for inorganic arsenic As documented in the March 2 2012 Interim Basis

Statement and Response to Comments the Department reviewed the results of additional studies on

bioconcentration more current information on the inorganic portion of total arsenic and statewide fish

consumption rates using a higher percentile of Maine specific data Of the revisions undertaken the

bioconcentration factor and the inorganic factor were both lowered from previous practices but

established at the most stringent possible values given the current information The fish consumption

rate for inorganic arsenic was increased The cancer potency factor was maintained at the current level

in consideration of recent more complete studies on the internal health effects of inorganic arsenic and

anticipated future national revisions instead of being lowered as has been the practice elsewhere

Though the Department took conservative approaches to each of these parameters the end result as you

point out became less stringent than first proposed

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web site wwwmablegovidep

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Chief Brenda Commander May 30 2012 Page 2 of 3

In your letter you ask How can a process be more protective when the outcome ofthat process is

not in reference to a sentence in the Interim Response to Comments the process utilized to develop

these criteria is considered moreprotective ofsensitive subpopulations This is an excellent

question

USEPA determined that the Departments initially proposed human health criteria for inorganic arsenic

were not sufficient to ensure that sensitive subpopulations would be adequately protected from a cancer

risk from arsenic exposure greater than one case per ten thousand people 10E4 To put the excerpted

sentence in context Based on comments received from USEPA and other commenters and to ensure

adequate protection of the general populations as well as highly exposedfish consuming

subpopulations the Department has conducted a wider review of the factors usedfor establishing

inorganic arsenic criteria in Maine other states and USEPA regions The Department is proposing

revisions to several other relevant factors which results in new proposed AWQCfor inorganic arsenic

The criteria proposed at this time are less stringent than the previously proposed criteria However the

process utilized is considered by USEPA to he more transparent and more protective ofsensitive

subpopulations at the JOE4 cancer risk level This process has been used by other states such as

Oregon and approved by USEPA In hindsight it may have been more accurate to characterize the

resulting criteria as more appropriately protective given the use of updated underlying individual

parameters such as bioconcentration factor fish consumption rate and inorganic factor that are based

on more current and scientifically valid information

I assure you that the Department reviewed and considered each comment received though every

comment could not result in a change in the Departments position or the final proposed rule In each of

the areas reviewed the Department sought more conservative positions where possible and supported by

the scientific literature to better ensure protection ofMaine citizens The Departments consideration of

issues is described in detail in the interim and final Response to Comments

The Department seeks the input of the Houlton Band of Maliseet Indians and other Maine Tribes in our

permitting procedures Following Maines delegation to administer the US Clean Water Act in 2001

the Department committed to involving Maine Tribes in the review of all Public Draft Maine Pollutant

Discharge Elimination System MEPDES Permits in the following areas of their choice

Aroostook Band of Micmac Indians All discharges in Aroostook County

Houlton Band of Maliseet Indians All discharges in Aroostook County including all correspondence

regarding existing or proposed discharges in the Meduxnekeag River watershed

Passamaquoddy Tribe Indian Township All discharges in St Croix River watershed

Passamaquoddy Tribe Pleasant Point All discharges in Washington County

Penobscot Indian Nation All kraft pulp paper mill discharges all discharges in Penobscot River

watershed and estuary south to Searsport

I and my staff are committed to continuing and building on these relationships

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Chief Brenda Commander May 30 2012 Page 3 of 3

Formally I must state that at this point in the rulemaking process the Department is unable to consider

any further comment on the revised proposed rule unless it is submitted in accordance with the Maine

Administrative Procedure Act Therefore we can not consider any comments made at our upcoming

meeting in the rulernaking process Still I look forward to meeting with you on June 8 to discuss the

broader issues of our ongoing relationship If you have any questions or concerns in the interim please

feel free to contact me

Sincerely

fiCrifeL

Patricia W Aho

Commissioner

cc Mick Kuhns Director MEDEP Bureau of Land and Water Quality

Brian Kavanah Director MEDEP Division of Water Quality Management

Bob Stratton MEDEP Division of Water Quality Management

Curt Spalding USEPA NE Regional Administrator

tephen Silva USEPA DEP NE

Michael Stover USEPA NE Indian Program Manager

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