38 ME Rev Stat § 420 (2021)
2021 Maine Revised Statutes|TITLE 38: WATERS AND NAVIGATION|Chapter 3: PROTECTION AND IMPROVEMENT OF WATERS|Subchapter 1: ENVIRONMENTAL PROTECTION BOARD|Article 2: POLLUTION CONTROL|38 §420. Certain deposits and discharges prohibited

 §420. Certain deposits and discharges prohibited No person, firm, corporation or other legal entity shall place, deposit, discharge or spill, directly or indirectly, into the ground water, inland surface waters or tidal waters of this State, or on the ice thereof, or on the banks thereof so that the same may flow or be washed into such waters, or in such manner that the drainage therefrom may flow into such waters, any of the following substances:   [PL 1989, c. 890, Pt. A, §40 (AFF); PL 1989, c. 890, Pt. B, §37 (AMD).]1.  Mercury.   [PL 1999, c. 500, §1 (RP).] 1-A.  Mercury.   [PL 2001, c. 418, §2 (RP).] 1-B.  Mercury.  Facilities discharging mercury into the waters of the State shall make reasonable progress to develop, incorporate and continuously improve pollution prevention practices, and implement economically achievable future improvements in wastewater technology, in order to reduce their dependence upon mercury products, reduce or remove discharges of mercury over time, and help in the restoration of the waters of the State. This subsection establishes ambient water quality criteria for mercury that identify that level of mercury considered safe for human health and the environment.   A. The ambient criteria for mercury are as follows:   (1) Ambient water quality criteria for aquatic life:   (a) Freshwater acute: 1.7 micrograms per liter;   (b) Freshwater chronic: 0.91 micrograms per liter;   (c) Saltwater acute: 2.1 micrograms per liter; and   (d) Saltwater chronic: 1.1 micrograms per liter; and   (2) Fish tissue residue criterion for human health: 0.2 milligrams per kilogram in the edible portion of fish for all waters, except for those water body segments subject to a sustenance fishing designated use pursuant to article 4‑A, which must have a fish tissue residue criterion for human health of 0.03 milligrams per kilogram in the edible portion of fish.   [PL 2019, c. 463, §1 (AMD).]B. A facility is not in violation of the ambient criteria for mercury if:   (1) The facility is in compliance with an interim discharge limit established by the department pursuant to section 413, subsection 11; or   (2) The facility is in compliance with a remediation or corrective action plan, license or order approved either by the department pursuant to section 1301, 1304, 1319, 1364 or 1365, or by the United States Environmental Protection Agency under federal law with the concurrence of the department.   [PL 2001, c. 418, §3 (NEW).]C. The department may establish a site-specific bioaccumulation factor for mercury when there is sufficient information to indicate that a site-specific bioaccumulation factor will be protective of human health and wildlife. A site-specific bioaccumulation factor may only be established:   (1) As part of a licensing proceeding pursuant to section 413 by the department; or   (2) As part of a remediation or corrective action plan, license or order approved either by the department pursuant to section 1301, 1304, 1319, 1364 or 1365, or by the United States Environmental Protection Agency under federal law with the concurrence of the department.   [PL 2017, c. 137, Pt. A, §9 (AMD).]D. The department shall establish by rule a statewide bioaccumulation factor protective of 95% of the waters of the State based upon data of acceptable quality and representing the species consumed by the public following guidelines published by the United States Environmental Protection Agency. Rules adopted pursuant to this paragraph are major substantive rules as defined in Title 5, chapter 375, subchapter II‑A.   [PL 2001, c. 418, §3 (NEW).]E. The department shall establish by rule statewide ambient water quality criteria for mercury concerning wildlife based upon data of acceptable quality from the State or the United States Environmental Protection Agency. Rules adopted pursuant to this paragraph are major substantive rules as defined in Title 5, chapter 375, subchapter II‑A.   [PL 2001, c. 418, §3 (NEW).]F. The department may require mercury testing once per year for facilities that maintain at least 5 years of mercury testing data.   [PL 2011, c. 194, §1 (NEW).]The commissioner shall report to the joint standing committee of the Legislature having jurisdiction over natural resources matters by January 15, 2005 and by January 15th every 5th year thereafter on the status of mercury discharges, progress in implementing pollution prevention plans and progress toward attainment of ambient water quality criteria for mercury under this subsection. The report may include proposed statutory amendments. The joint standing committee of the Legislature having jurisdiction over natural resources matters may report out any necessary implementing legislation related to these mercury issues in each session in which a report is required under this subsection.   [PL 2019, c. 463, §1 (AMD).] 2.  Toxic or hazardous substances.  Any other toxic substance in any amount or concentration greater than that identified or regulated, including complete prohibition of such substance, by the department. In identifying and regulating such toxic substances, the department shall take into account the toxicity of the substance, its persistence and degradability, the usual or potential presence of any organism affected by such substance in any waters of the State, the importance of such organism and the nature and extent of the effect of such substance on such organisms, either alone or in combination with substances already in the receiving waters or the discharge. As used in this subsection, "toxic substance" means those substances or combination of substances, including disease-causing agents, that after discharge or upon exposure, ingestion, inhalation or assimilation into any organism, including humans either directly through the environment or indirectly through ingestion through food chains, will, on the basis of information available to the department either alone or in combination with other substances already in the receiving waters or the discharge, cause death, disease, abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformations in such organism or its offspring.   A. Except as naturally occurs or as provided in paragraphs B and C, the department shall regulate toxic substances in the surface waters of the State at the levels set forth in federal water quality criteria as established by the United States Environmental Protection Agency pursuant to the Federal Water Pollution Control Act, Public Law 92-500, Section 304(a), as amended.   [PL 2017, c. 137, Pt. A, §10 (AMD).]B. The department may change the statewide criteria established under paragraph A for a particular toxic substance established pursuant to the Federal Water Pollution Control Act, Public Law 92-500, Section 304(a), as amended, as follows:   (1) By adopting site-specific numerical criteria for the toxic substance to reflect site-specific circumstances different from those used in, or any not considered in, the derivation of the statewide criteria. The department shall adopt site-specific numerical criteria only as part of a licensing proceeding pursuant to sections 413, 414 and 414-A; or   (2) By adopting alternative statewide criteria for the toxic substance. The alternative statewide criteria must be adopted by rule.   The department may substitute site-specific criteria or alternative statewide criteria for the criteria established in paragraph A only upon a finding that the site-specific criteria or alternative statewide criteria are based on sound scientific rationale and are protective of the most sensitive designated use of the water body, including, but not limited to, human consumption of fish and drinking water supply after treatment.   [PL 2017, c. 137, Pt. A, §10 (AMD).]C. When surface water quality standards are not being met due to the presence of a toxic substance for which no water quality criteria have been established pursuant to the Federal Water Pollution Control Act, Section 304(a), as amended, the department shall:   (1) Adopt statewide numerical criteria by rule; or   (2) Adopt site-specific numerical criteria as part of a licensing proceeding under sections 413, 414 and 414-A.   Nothing in this section restricts the authority of the department to adopt, by rule, statewide or site-specific numerical criteria for toxic substances that are not presently causing water quality standards to be violated.   [PL 2017, c. 137, Pt. A, §10 (AMD).]D. For any criteria established under this subsection, the department shall establish the acceptable level of additional risk of cancer to be borne by the affected population from exposure to the toxic substance believed to be carcinogenic.   [PL 2017, c. 137, Pt. A, §10 (AMD).]E. In regulating substances that are toxic to humans, including any rulemaking to regulate these substances, the department shall consider any information provided by the Department of Health and Human Services.   [PL 2017, c. 137, Pt. A, §10 (AMD).]F. The Department of Health and Human Services may request that the department adopt or revise the statewide or site-specific criteria for any toxic substance based on the need to protect public health. If the request is filed with the department, the department may propose a rule and initiate a rule-making proceeding. The department shall incorporate in its proposal for rulemaking under this paragraph the statewide or site-specific criteria recommended by the Department of Health and Human Services.   [PL 2017, c. 137, Pt. A, §10 (AMD).]G. Numeric water quality criteria for 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin established by the United States Environmental Protection Agency under the Federal Water Pollution Control Act, Public Law 92-500, Section 304(a), as amended, do not apply until June 1, 1991, and only apply on that date if the department has not adopted through rulemaking or individual licensing proceedings under this section alternative numeric water quality criteria for 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin. Pursuant to section 414‑A, subsection 2, the department shall establish schedules for compliance with criteria established under this section. These schedules must be consistent with the compliance deadlines established under the Federal Water Pollution Control Act, Public Law 92-500, Section 304(l), as amended.   [PL 2017, c. 137, Pt. A, §10 (AMD).]H. Notwithstanding paragraphs D and G, the department may not adopt any numeric water quality criteria for, or acceptable level of additional cancer risk from exposure to, 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin prior to January 1, 1994.   [PL 2017, c. 137, Pt. A, §10 (AMD).]I. Notwithstanding any other provision of this section, the following standards apply only to a bleach kraft pulp mill, referred to in this paragraph as a "mill."   (1) After July 31, 1998, a mill may not have a detectable quantity of 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin as measured in any internal waste stream of its bleach plant. For purposes of compliance, the detection level is 10 picograms per liter, unless the department adopts a lower detection level by rule, which is a routine technical rule pursuant to Title 5, chapter 375, subchapter 2‑A, or a lower detection level by incorporation of a method in use by the United States Environmental Protection Agency.   (2) After December 31, 1999, a mill may not have a detectable quantity of 2, 3, 7, 8-tetrachlorodibenzo-p-furan as measured in any internal waste stream of its bleach plant. The commissioner may extend this time frame up to 6 months for a mill if the commissioner determines, based on information presented by the mill, that compliance is not achievable by the deadline due to engineering constraints, availability of equipment or other justifiable technical reasons. For purposes of compliance, the detection level is 10 picograms per liter, unless the department adopts a lower level of detection by rule, which is a routine technical rule pursuant to Title 5, chapter 375, subchapter 2‑A, or a lower detection level by incorporation of a method in use by the United States Environmental Protection Agency. If a mill fails to achieve this requirement, as documented by confirmatory sampling, it shall conduct a site-specific evaluation of feasible technologies or measures to achieve it. This evaluation must be submitted to the commissioner within 6 months of the date of confirmatory sampling and include a timetable for implementation, acceptable to the commissioner, with an implementation date no later than December 31, 2002. The commissioner may establish a procedure for confirmatory sampling.   (3) After December 31, 2002, a mill may not discharge dioxin into its receiving waters. For purposes of this subparagraph, a mill is considered to have discharged dioxin into its receiving waters if 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin or 2, 3, 7, 8-tetrachlorodibenzo-p-furan is detected in any of the mill's internal waste streams of its bleach plant and in a confirmatory sample at levels exceeding 10 picograms per liter, unless the department adopts a lower detection level by rule, which is a routine technical rule pursuant to Title 5, chapter 375, subchapter 2-A, or a lower detection level by incorporation of a method in use by the United States Environmental Protection Agency, or if levels of dioxin, as defined in section 420-B, subsection 1-A, paragraph A detected in fish tissue sampled below the mill's wastewater outfall are higher than levels in fish tissue sampled at an upstream reference site not affected by the mill's discharge or on the basis of a comparable surrogate procedure acceptable to the commissioner. The commissioner shall consult with the technical advisory group established in section 420-B, subsection 1, paragraph B, subparagraph (5) in making this determination and in evaluating surrogate procedures. The fish-tissue sampling test must be performed with differences between the average concentrations of dioxin in the fish samples taken upstream and downstream from the mill measured with at least 95% statistical confidence. If the mill fails to meet the fish-tissue sampling-result requirements in this subparagraph and does not demonstrate by December 31, 2004 and annually thereafter to the commissioner's satisfaction that its wastewater discharge is not the source of elevated dioxin concentrations in fish below the mill, then the commissioner may pursue any remedy authorized by law.   (4) For purposes of documenting compliance with subparagraphs (1) and (2) the internal waste stream of a bleach plant must be sampled twice per quarter by the mill. The department may conduct its own sampling and analysis of the internal waste stream of a bleach plant. Analysis of the samples must be conducted by a 3rd-party laboratory using methodology approved by the United States Environmental Protection Agency. A mill shall report to the department for informational purposes the actual laboratory results including sample detection limits on a frequency to be established by the commissioner.   The commissioner shall assess the mill for the costs of any sampling performed by the department and any analysis performed for the department under this paragraph and credit funds received to the Maine Environmental Protection Fund.   The commissioner may reduce the frequency of sampling required by a mill after 3 consecutive years of sampling have demonstrated the mill does not have a detectable quantity of 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin or 2, 3, 7, 8-tetrachlorodibenzo-p-furan.   [PL 2007, c. 565, §1 (AMD).]J. Notwithstanding any other provision of law to the contrary, the department shall use a one in 10,000 risk level when calculating ambient water quality criteria for inorganic arsenic.   [PL 2011, c. 194, §2 (NEW).][PL 2017, c. 137, Pt. A, §10 (AMD).] 3.  Radiological, chemical or biological warfare agents.  Radiological, chemical or biological warfare agents or high level radioactive wastes.   [PL 1973, c. 450, §18 (NEW).] SECTION HISTORY PL 1971, c. 544, §130 (NEW). PL 1971, c. 618, §12 (AMD). PL 1973, c. 450, §18 (AMD). PL 1979, c. 127, §210 (AMD). PL 1979, c. 472, §14 (AMD). PL 1983, c. 566, §23 (AMD). PL 1989, c. 856, §§2,7 (AMD). PL 1989, c. 890, §§A40,B37,38 (AMD). RR 1991, c. 2, §141 (COR). PL 1993, c. 240, §1 (AMD). PL 1997, c. 444, §7 (AMD). PL 1997, c. 722, §§1,2 (AMD). PL 1999, c. 500, §§1,2 (AMD). PL 2001, c. 418, §§2,3 (AMD). PL 2003, c. 165, §1 (AMD). PL 2003, c. 689, §B6 (REV). PL 2007, c. 565, §1 (AMD). PL 2011, c. 194, §§1, 2 (AMD). PL 2017, c. 137, Pt. A, §§9, 10 (AMD). PL 2019, c. 463, §1 (AMD).