UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I
5 POST OFFICE SQUARE, SUITE 100
BOSTON, MASSACHUSETTS 02109

- 3912

MEMORANDUM

SUBJECT : Tribal Technical Consultation : Maine Water Quality Standards: Copper and Asbestos

FROM : Mi chael Stover , EPA Region 1 Indian Program Manager

TO : file

DATE: March 31, 2016

On Tuesday, November 3

, 2015 from 1 0:00am

– 11:00a m , a technical consultation conference call was held

with the Penobscot Indian Nation regarding the application of water quality standards pertaining to waters in

Indian lands in Maine , specifically regarding copper and asbestos standards

. Present on the conference call

were Dan Kusnie r z of the Penobscot Indian Nation , as well as Mike Stover and Ellen Weitzler from EPA Regio n 1

. This call was held because Dan Kusnierz was not present on the October 28 2016 call on the same matter. The Passamaquoddy Tribe was also invited but did not participate.

EPA opened the consultation by discussing this opportunity for EPA to receive i nput from the tribes on Maine’s water quality standards for copper and asbestos as applicable to waters in Indian lands in Maine

. EPA explained that o n February 2, 2015, EPA disapproved Maine’s new or revised human health criteria (HHC), set forth in DEP R ule Chapter 584, as they relate to waters in Indian lands in Maine. The disapprovals were based on EPA’s conclusion that the HHC do not protect the sustenance fishing use in those waters because Maine’s 32.4 g/day fish consumption rate is not representati ve of an unsuppressed sustenance fish consumption rate by the tribes, who are the target general population in waters in Indian lands.

EPA explained that a mong the new or revised HHC that EPA disap proved were the HHC for copper and

asbestos

. However, un like the other HHC that EPA disapproved, EPA’s Clean Water Act (CWA) section 304(a) National Recommended Water Quality Criteria (NRWQC) for these pollutants, on which Maine’s criteria are based, were not derived using a fish consumption rate. Rather, EPA set its NRWQC for copper

and asbestos (water only, no organism/fish component) equal to EPA’s Safe Drinking Water Act (SDWA) Maximum Contaminant Level Goals (MCLGs) for those pollutants. These MCLGs are based on ingestion of water, and are not based on or affected by specific fish consumption rates. EPA is considering whether the basis for EPA’s disappro vals of the HHC in the first decision letter should n ot apply to these criteria, and sought feedback from the tribes.

EPA asked how early in the year do t ribal members start paddling on the Penobscot River and how late into the year does paddling continue. Dan Kusn i erz reported that tribal members are fishing in the river as long as ice in the river does not impede navigation of boats/canoes. Depending on t he severity of the weather in the winter season, tribal members could be fishing in the river through late November and resume typically in early March, and commented that waters near the Milford dam tend not tend to ice over as much as other parts

of the river, due to the movement of water. Parts of the river may be navigable throughout the winter depending on the climate. Dan also mentioned that tribal members have also paddled in the vicinity of the thermal discharge from Lincoln Pulp and Paper, which ca n be ice

- free when thawed by the thermal discharge, but which also poses a safety concern for these tribal members.