  SEQ CHAPTER \h \r 1 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.

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