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: Michael Stover, EPA Region 1 Indian Program Manager

TO: file

DATE: March 31, 2016

On Tuesday, November 3, 2015 from 10:00am – 11:00am, 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 Kusnierz of the Penobscot Indian Nation, as well as Mike Stover and Ellen Weitzler from EPA 

Region 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 input 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 on February 2, 2015, EPA disapproved Maine’s new or revised human health criteria 

(HHC), set forth in DEP Rule 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 representative of an unsuppressed sustenance 

fish consumption rate by the tribes, who are the target general population in waters in Indian lands. 

EPA explained that among the new or revised HHC that EPA disapproved were the HHC for copper and 

asbestos. However, unlike 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 disapprovals of the HHC in the first decision letter should not apply to these criteria, and 

sought feedback from the tribes.

EPA asked how early in the year do tribal members start paddling on the Penobscot River and how late into 

the year does paddling continue. Dan Kusnierz 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 the 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 can be ice-free when thawed by the thermal discharge, 

but which also poses a safety concern for these tribal members.