State of Maine, Complaint (PDF)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

STATE OF MAINE, and PATRICIA AHO, in her capacity as Commissioner of the Maine Department of Environmental Protection,

Plaintiffs, CIVIL ACTION NO.:

GINA MCCARTHY, in her capacity as Administrator, United States Environmental Protection Agency, and H. CURTIS SPALDING, in his capacity as Regional Administrator of the United States Environmental Protection Agency (Region I),

Defendants.

COMPLAINT

Introduction

1. Plaintiffs State of Maine and Patricia Aho, Commissioner of the Maine Department of

Environmental Protection (“DEP”) (collectively “Plaintiffs” or “Maine”), bring this action to challenge Defendants’ failure to approve or disapprove certain revisions (submitted by DEP in a letter dated January 14, 2013) to Maine’s surface water quality standards (“WQS”) pursuant to the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”) for unspecified waters that the United

States Environmental Protection Agency (“EPA”) claims may be within Indian territories and/or lands.

2. Maine’s environmental jurisdiction over all waters within the state is established by the

Maine Implementing Act, 30 M.R.S. §§ 6201 et seq. (“MIA”) and the federal Maine Indian Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 2 of 24 PageID #: 2

Claims Settlement Act, 25 U.S.C. §§ 1721 et seq. (“Federal Settlement Act” or “MICSA”)

(collectively the “Settlement Acts”), and has recently been confirmed by the First Circuit Court of Appeals in Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007).

3. Pursuant to the CWA and corresponding federal regulations, Maine has the primary authority to establish and revise WQS for all waters within the state, and Defendants and EPA have the non-discretionary duty to timely approve or disapprove those WQS and revisions.

4. Rather than fulfill this duty, Defendants and EPA have in recent years attempted to limit

Maine’s environmental jurisdiction by failing to take any action on Maine’s revisions to its WQS for unspecified waters in Indian territories and/or lands in direct contravention of the terms of the

Settlement Acts and Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007).

5. At roughly the same time, and without informing Maine, EPA has also communicated with Maine Indian tribes, including the Penobscot Indian Nation (“PIN”), regarding tribal environmental matters such as PIN’s efforts to promulgate separate WQS for, and obtain separate EPA-delegated National Pollution Discharge Elimination System (“NPDES”) permitting authority over, Maine waters within Indian territories and/or lands.

6. By way of this lawsuit, Maine seeks, among other things, a declaration that: 1) Maine’s environmental regulatory jurisdiction for all purposes, including Maine’s WQS and revisions under the CWA, applies uniformly throughout the State of Maine, including to all waters arguably within

Indian territories and/or lands; and 2) the revisions to Maine’s WQS submitted by DEP to EPA by letter dated January 14, 2013, are deemed approved by EPA and in effect throughout the State of

Maine, including as to those unspecified waters that EPA claims are within Indian territories and/or lands.

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The Parties

7. Plaintiff State of Maine is a sovereign state with environmental regulatory jurisdiction over all waters within its boundaries.

8. Plaintiff Patricia Aho is the Commissioner of the Maine DEP and has primary responsibility for the environmental protection, regulation and control over all waters within the

State of Maine.

9. Defendant Gina McCarthy is the Administrator of EPA and is being sued in her official capacity.

10. EPA is an agency of the United States and has responsibility and oversight regarding federal statutes and regulations dealing with the protection, regulation and control over waters within the United States.

11. Defendant H. Curtis Spalding, who is also being sued in his official capacity, is the EPA

Regional Administrator for Region I (New England), which includes the State of Maine.

12. Within EPA’s Region I, Mr. Spalding has responsibility and oversight regarding federal statutes and regulations dealing with the protection, regulation and control over waters within the

United States.

13. As Regional Administrator for EPA’s Region I, Mr. Spalding also oversaw or was responsible for: 1) EPA’s failure in recent years to take any action on Maine’s revisions to its

WQS (including those WQS revisions submitted by DEP in its letter to EPA dated January 14,

2013) for waters arguably within Indian territories and/or lands, and 2) undisclosed communications between EPA and PIN and other Maine tribes regarding, among other things,

PIN’s attempts to establish tribal WQS for and obtain EPA-delegated NPDES permitting authority over Maine waters.

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14. The failure by Defendants and EPA to take any action regarding Maine’s WQS revisions

(including those submitted to EPA by DEP’s letter dated January 14, 2013) has harmed Plaintiffs by: 1) preventing Maine from establishing its WQS revisions on a statewide basis and from effectively regulating the unspecified waters that EPA claims may be within Indian territories and/or lands; 2) creating regulatory uncertainty for such unspecified waters; 3) stripping Maine of a portion of its environmental regulatory jurisdiction; and 4) undermining the jurisdictional framework created by Congress and the Maine Legislature in the Settlement Acts.

Jurisdiction

15. This Court has jurisdiction over the subject matter of this action pursuant to 33 U.S.C. §

1365(a)(2), and 28 U.S.C. §§ 1331, 1346(a)(2), 1361, and 2201 – 2202.

Venue

16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 and 33 U.S.C. § 1365.

Defendants and EPA have the non-discretionary duty to approve or disapprove Maine’s new or revised WQS under the CWA

17. The CWA aims to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

18. In establishing the CWA’s regulatory framework, Congress was careful to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution…” 33 U.S.C. § 1251(b).

19. The CWA requires each state to create and submit WQS to EPA for review. 33 U.S.C.

§§ 1313(c)(1) & (2).

20. The CWA has deep roots within the State of Maine, as Maine’s Senator Edmund Muskie was the CWA’s chief architect.

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21. Consistent with this legacy, Maine takes seriously its responsibility and commitment to protect water quality on behalf of all citizens throughout Maine, including members of Indian tribes that may engage in sustenance fishing.

22. Defendants and EPA have the non-discretionary duty to either approve or disapprove new or revised WQS submitted by states such as Maine. 33 U.S.C. § 1313(c)(2) & (3); 40 C.F.R. §§

131.5 & 131.21.

23. In particular, Defendants and EPA have the non-discretionary duty to either approve new or revised WQS within 60 days of their submission, or disapprove those WQS within 90 days of their submission. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21.

24. If new or revised WQS are disapproved or determined by EPA not to meet the requirements of the CWA in any way, then Defendants and EPA have the non-discretionary duty to notify the state of the deficiencies in the WQS and specify the changes required for EPA approval within 90 days of the state’s submission of those WQS. 33 U.S.C. § 1313(c)(3); 40

C.F.R. § 131.21.

Under the Settlement Acts, Maine has the exclusive authority to establish and revise WQS for all Maine waters, including waters within Indian territories and lands

25. The 1980 Settlement Acts “provided that ‘with very limited exceptions,’ [the Maine

Indian tribes] would be ‘subject to’ Maine law….” Maine v. Johnson, 498 F.3d 37, 42 (1st Cir.

2007).

26. The Settlement Acts establish:

Except as otherwise provided in this Act, all Indians, Indian nations, and tribes and bands of Indians in the State and any lands or other natural resources owned by them, held in trust for them by the United States or by any other person or entity shall be subject to the laws of the State and to the civil and criminal jurisdiction of the courts of the State to the same extent as any other person or lands or other natural resources therein.

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30 M.R.S. § 6204 (MIA), confirmed by 25 U.S.C. § 1725 (MICSA).

27. “[T]he then Interior Secretary's state[d] to Congress that the Settlement Acts were

‘intended to effectuate the broad assumption of jurisdiction over Indian land by the State of

Maine.’ H.R. Rep. 96-1353 at 28, reprinted in 1980 U.S.C.C.A.N. 3786, 3803-3804 (report of the Department of the Interior).” Maine v. Johnson, 498 F.3d 37, 45 n.10 (1st Cir. 2007).

28. “At the time the Settlement Acts were adopted, the Interior Department, largely responsible for relations with Indian tribes, told Congress that the southern tribes’ lands would generally be subject to Maine law. H.R. Rep. 96-1353 at 28 (report of the Department of the

Interior).” Maine v. Johnson, 498 F.3d 37, 43 (1st Cir. 2007)

29. Congress understood that, under the Settlement Acts, Maine would retain its environmental regulatory authority over Maine Indian territories and lands:

The Senate Report, adopted by the House Report, declared that “State law, including but not limited to laws regulating land use or management, conservation and environmental protection, are fully applicable as provided in [the proposed bill] and Section 6204 of the Maine Implementing Act.” S. Rep. 96-957 at 27; H.R. Rep. 96-1353 at 20.

Maine v. Johnson, 498 F.3d 37, 43-44 (1st Cir. 2007).

30. Congress also understood that any special environmental rights afforded to Indian tribes generally would be inapplicable in Maine:

The Senate Report stated that “for example, although the federal Clean Air Act, 42 U.S.C. § 7474, accords special rights to Indian tribes and Indian lands, such rights will not apply in Maine because otherwise they would interfere with State air quality laws which will be applicable to the lands held by or for the benefit of the Maine Tribes. This would also be true of police power laws on such matters as safety, public health, environmental regulation or land use.” S. Rep. 96-957 at 31.

Maine v. Johnson, 498 F.3d 37, 44 n.7 (1st Cir. 2007).

31. Thus, under the terms of the 1980 Federal Settlement Act (MICSA), no existing federal laws that afforded Indian tribes any special rights or status, and that affected or

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preempted Maine’s civil regulatory jurisdiction (including Maine’s environmental laws), would apply in Maine. 25 U.S.C. § 1725(h).

32. Similarly, under the terms of the 1980 Federal Settlement Act (MICSA), no future federal laws that benefit Indian tribes and that affect or preempt Maine’s laws would apply in

Maine unless those laws were made specifically applicable to Maine. 25 U.S.C. § 1735(b).

33. In 1987, Congress amended the CWA by, among other things, adding Section 518, which sets forth Indian tribal rights and responsibilities, and which allows Indian tribes to apply for “treatment as state” status. 33 U.S.C. § 1377(e).

34. Generally, outside of the State of Maine, an Indian tribe may be granted jurisdiction to regulate water resources within its borders in the same manner as states, including the authority to establish tribal WQS subject to EPA approval, and the authority to issue NPDES permits for discharges into such waters. 33 U.S.C. § 1377(e); 40 C.F.R. § 131.8; City of

Albuquerque v. Browner, 97 F.3d 415, 418 (9th Cir. 1996).

35. Because it would affect Maine’s regulatory jurisdiction and it was not made explicitly applicable to Maine, Section 518 of the CWA does not apply in Maine. 25 U.S.C. § 1735(b).

36. Congress considered this very issue when enacting Section 518 of the CWA:

This section does not override the provisions of the Maine Indian Claims Settlement Act (25 U.S.C. 1725). Consistent with subsection (h) of the Settlement Act, the tribes addressed by the Settlement Act are not eligible to be treated as States for regulatory purposes. . .

Water Quality Act of 1987, Section-by-Section Analysis, reprinted in 1987 U.S.C.C.A.N. 5, at 43; see also Maine v. Johnson, 498 F.3d 37, 43 n.5 (1st Cir. 2007).

37. EPA itself also addressed this issue in a 1993 guidance document:

[A provision of the 1980 Federal Settlement Act, 25 U.S.C. § 1725(h)] would seem to invalidate federal laws that might give the Penobscots special status, including treatment as a state, for certain environmental

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programs or purposes if it would “affect or preempt” the State’s authority, including the State’s jurisdiction over environmental and land use matters.

The final critical provision of the 1980 Federal Act for jurisdictional analysis relates to future legislation. Future federal legislation for the benefit of Indians that “would affect or preempt” state laws (including the State Act) would not apply in Maine unless the federal legislation specifically addressed its application in Maine . . . Thus, any post-1980 special federal legislative provisions that might give Indians special jurisdictional authority (if, for example, any federal laws in the 1980’s provided authority for EPA approval of a Tribal environmental program equivalent to a state environmental program delegated by EPA to the state) could not provide the Penobscots with such jurisdictional authority unless the federal legislation specifically addressed Maine and made the legislation applicable within Maine.

U.S. EPA Memorandum: Penobscot’s Treatment as a State under CWA, § 518(e), at 8 (July 20,

1993).

EPA has historically evaluated and approved Maine’s WQS and revisions for all Maine waters, including all waters arguably within Indian territories and lands

38. Historically, both before and after the 1980 passage of the Settlement Acts, EPA reviewed and acted on Maine’s WQS submissions without mention of any issue regarding

Maine’s jurisdiction over Indian territories and/or lands.

39. During the 1980s and the 1990s, EPA repeatedly approved Maine’s proposed and revised

WQS even though they applied to areas that Maine Indian tribes claim to be within their territories and/or lands.

40. For example, in the mid-1980s, Maine substantially revised and strengthened its WQS to protect its water resources and designated uses. Me. Pub. L. 1985, c. 698, § 15, now as amended

38 M.R.S. §§ 464, et seq.

41. Those revised and strengthened WQS applied to all surface waters in Maine, including waters in or near Indian territories such as the Penobscot River, and none of those WQS

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mentioned or provided any special protection to Indian tribal interests or sustenance fishing. 38

M.R.S. §§ 464, 467(7).

42. Although EPA raised unrelated concerns regarding Maine’s revised and strengthened

WQS, EPA did not at that time raise any issue regarding Maine’s jurisdiction over any Maine waters arguably within Indian territories and/or lands.

43. When EPA issues a NPDES discharge permit, the CWA requires a certification from the state pursuant to Section 401, 33 U.S.C. § 1341, that the discharge complies with the state WQS and state law requirements. PUD No. 1 of Jefferson Co. v. Washington Dep’t of Ecology, 511

U.S. 700, 707-708 (1994).

44. Historically, Maine has issued Section 401 water quality certifications under the CWA for such EPA-issued NPDES permits throughout the State of Maine, including for areas in or near

Maine waters arguably within Indian territories and/or lands.

45. EPA has never suggested that such Section 401 water quality certifications by Maine were unnecessary or that Maine’s WQS and revisions were inapplicable to EPA-issued NPDES permits for those areas in or near waters arguably within Indian territories and/or lands.

46. In addition, EPA, in its oversight role over its CWA delegated authority to Maine under the Maine Pollutant Discharge Elimination System (“MEPDES”), has historically reviewed draft

MEPDES permits issued by Maine for areas within Indian territories and lands, including the main stem of the Penobscot River from Indian Island northward to the confluence of the East and

West Branches of the Penobscot River (“Main Stem”).

47. EPA has never taken the position that any WQS other than Maine’s generally-applicable

WQS and revisions govern its NPDES permits, or MEPDES permits issued by Maine, for waters arguably within Indian territories and/or lands, such as the Main Stem of the Penobscot River.

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48. For instance, EPA issued a NPDES permit to PIN dated January 26, 2006, for discharges into the Penobscot River from PIN’s Penobscot Nation Pollution Control Facility in Indian

Island, Maine, which are governed by Maine’s WQS.

49. EPA’s January 26, 2006 NPDES permit issued to PIN states in part:

B. NARRATIVE EFFLUENT LIMITATIONS

. . . 5. The discharge shall not cause a violation of state water quality standards (Maine Law, 38 M.R.S.A. 467(15)(1)(4) which classifies the Penobscot River as a Class B waterway in the proximity of the discharge. . . .

1. APPLICATION SUMMARY . . .

October 31, 2003 – EPA approved Maine to implement the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program in the territories of two Maine Indian tribes, the Penobscot Indian Nation and Passamaquoddy Tribe. However, EPA did not [at that time] authorize the state to regulate two tribally owned and operated sewage treatment facilities: the Penobscot Indian Nations’ Water Pollution Control Facility on Indian Island and the Passamaquoddy Tribe’s Pleasant Point Facility. . . .

2. RECEIVING WATER QUALITY CONDITIONS

The Penobscot River is classified as a class B waterway in the proximity of the discharge. Refer to state water quality standards (Maine Law, 38 M.R.S.A. § 467(15)(1)(4)). Class B waters require that a minimum. . .

6. DISCHARGE IMPACT ON RECEIVING WATER QUALITY

As permitted, the EPA has determined the existing water uses will be maintained and protected and the discharge will not cause or contribute to the failure of the water body to meet standards for Class B classification. . . .

50. Maine’s EPA-delegated authority to issue MEPDES permits throughout the State of

Maine, including for PIN’s facility on Indian Island and the Passamaquoddy Tribe’s Pleasant

Point Facility, were subsequently confirmed by the First Circuit Court of Appeals in Maine v.

Johnson, 498 F.3d 37 (1st Cir. 2007).

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51. Accordingly, EPA has historically acted as if Maine’s generally-applicable WQS have state-wide application, including to all waters arguably within Indian territories and/or lands.

EPA’s recent failure to take any action on revisions to Maine’s WQS for unspecified waters that EPA claims are within Indian territories and/or lands

52. Beginning in approximately 2004, and despite its historical acceptance of Maine’s generally-applicable WQS on a state-wide basis, EPA began to limit approvals of certain revisions to Maine’s WQS to waters outside of Indian territories and lands within Maine.

53. For instance, EPA sent a letter to Maine dated February 9, 2004, which approves certain revisions to Maine’s WQS, and which states in part:

I hereby approve the revised water quality standards in Chapter 257. This approval is made pursuant to Section 303(c)(2) of the Clean Water Act and 40 CFR Part 131, and is based on my determination that the approved revisions are consistent with the requirements of Section 303 of the Act. . . .

EPA’s approval of Maine’s surface water standards revisions does not extend to waters that are within Indian territories and lands. EPA is taking no action to approve or disapprove the State’s standards revisions with respect to those waters at this time. EPA will retain responsibility under Section 303(d) for those waters. . . .

54. EPA sent another letter to Maine dated January 25, 2005, which approves other revisions to Maine’s WQS, and which states in part:

Pursuant to §303(c)(2) of the Clean Water Act and 40 C.F.R. Part 131, and based on my determination that the approved revisions are consistent with the requirements of §303 of the Act, I hereby approve the following revised standards: . . .

55. EPA sent another letter to Maine dated April 17, 2006, which approves other revisions to

Maine’s WQS, and which states in part:

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Pursuant to §303(c)(3) of the Clean Water Act and 40 CFR Part 131, I hereby approve the following water quality standards revisions: . . .

56. EPA sent another letter to Maine dated July 7, 2006, which approves other revisions to

Maine’s WQS, and which states in part:

Pursuant to §303(c)(2) of the Clean Water Act (CWA) and 40 CFR Part 131, I hereby approve the following water quality standards revisions, except as noted: . . .

EPA’s approval of Maine’s surface water standards revisions does not extend to waters that are within Indian territories and lands. EPA is taking no action to approve or disapprove the State’s revisions with respect to those waters at this time. EPA will retain responsibility under §303(c) and 303(d) of the Clean Water Act for those waters. . . .

57. EPA sent another letter to Maine dated September 18, 2006, which approves other revisions to Maine’s WQS, and which states in part:

Pursuant to §303(c)(2) of the Clean Water Act and 40 CFR Part 131, I hereby approve footnote J associated with Maine’s human health criteria for dioxin in DEP Rule Chapter 584, Appendix A, Table 1 . . .

EPA’s approval of Maine’s surface water standards revisions does not extend to waters that are within Indian territories and lands. EPA is taking no action to approve or disapprove the State’s revisions with respect to those waters at this time. EPA will retain responsibility under §303(c) and 303(d) of the Clean Water Act for those waters. . . .

58. EPA sent another letter to Maine dated August 19, 2009 (well after the decision in Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) was issued), which approves other revisions to Maine’s

WQS, and which states in part:

Pursuant to §303(c)(2) of the Clean Water Act and 40 CFR Part 131, I hereby approve the water quality standards revisions in Legislative Chapter 291 (L.D. 1274). . .

EPA’s approval of Maine’s surface water standards revisions does not extend to waters that are within Indian territories and lands. EPA is taking no action to approve or

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disapprove the State’s revision with respect to those waters at this time. EPA will retain responsibility under §303(c) and 303(d) of the Clean Water Act for those waters. . . .

59. Thereafter, Maine’s DEP submitted additional revised WQS to EPA for approval by letter December 7, 2009, which contained as an attachment an October 27, 2009 letter from the

Maine Office of the Attorney General to EPA stating:

As you know, it has now been established that Maine’s environmental regulatory jurisdiction, in particular regarding water resources, applies uniformly throughout the State, and that jurisdiction applies to all of Maine’s waters including those in the Penobscot River basin. Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007). Thus, it is clear that these standards apply to those areas previously disputed by the Maine tribes. In acting on the water quality standards set forth above, therefore, EPA should expressly confirm their applicability throughout Maine without exception.

60. In response to DEP’s December 7, 2009 submission, EPA sent another letter to Maine dated May 19, 2010, which approves the requested revisions to Maine’s WQS, acknowledges receipt of the Maine Office of the Attorney General’s letter dated October 27, 2009, and states in part:

I commend DEP for upgrading many of its waters, including 167 miles of rivers and streams and 214 acres of estuarine waters. Pursuant to §303(c)(2) of the Clean Water Act and 40 CFR Part 131, I hereby approve the water quality standards revisions in Legislative Chapter 163 (L.D. 330), “An Act to Change the Classification of Certain Waters of the State”: . . .

EPA’s approval of Maine’s surface water standards revision does not extend to waters that are within Indian territories and lands. EPA is taking no action to approve or disapprove the State’s revision with respect to those waters at this time. EPA will retain responsibility under §303(c) and 303(d) of the Clean Water Act for those waters. . . .

61. EPA sent another letter to Maine dated November 30, 2011, which comments on yet other revisions to Maine’s WQS, and which contains a footnote stating:

At present, note that Maine’s state water quality standards are not applicable to the waters of the federally recognized Tribes in Maine, because the State has not specifically applied to implement its water quality standards program in these territories and EPA has not made a specific finding that the State has jurisdiction to implement the water quality standards program in Tribal waters. EPA is taking no position now on whether the State has adequate authority to implement its standards in Indian territories. However, even

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though the standards do not currently apply in the Indian territories, it appears that they could have substantial effect on water quality in the Tribes’ territories and on the Tribes’ use of waters adjacent to their territories. EPA recognizes that there are significant disputes over the exact boundaries of the certain Indian reservations in Maine. But under any scenario of which EPA is aware, these water quality standards apply in waters directly adjacent to the tribes’ reservations, and in some scenarios they would apply in waters that completely surround a reservation. Therefore, it is important to clarify Maine’s ability to consider and protect the Tribal members’ right to fish for their individual sustenance.

62. More recently, Maine’s DEP sent a letter to the EPA Regional Administrator dated

January 14, 2013, which sought EPA’s approval of yet further revisions to Maine’s WQS expressly for all waters throughout the State of Maine, and which states in part:

In recent years, EPA’s approval of new or revised water quality standards in Maine has included language to the effect that the approval “does not extend to waters that are within Indian territories and lands.” Although it should not be necessary, by this letter I am expressly requesting that EPA approve the enclosed water quality standards as effective throughout the State of Maine without distinction as to waters within Indian territories or lands. There is no basis in the law for such a distinction, as Maine’s environmental regulatory jurisdiction is uniform throughout the State, including as to lands and waters that EPA might consider to be Indian. Maine v. Johnson, 498 F.3d 37, 43 (1st Cir. 2007) (Maine Indian Land Claims Settlement Act, and particularly the Maine Implementing Act at 30 M.R.S. § 6204, is “about as explicit as possible” in conferring environmental regulatory authority over Indian lands and waters on the State).

To the extent EPA does anything other than approve the enclosed standards in the unconditional manner requested, I hereby request that EPA:

-Identify with specificity each water body or segment thereof to which EPA contends the enclosed standards do not apply because they are waters “within Indian territories and lands”; and -Explain with specificity what water quality standards, if any, EPA contends are applicable to such water bodies or segments thereof, and the legal basis for that conclusion.

As I am sure you can appreciate, if it is indeed EPA’s position that Maine’s duly adopted water quality standards do not apply to some subset of waters within the State, then both MDEP and Maine’s regulated community are entitled to clear answers to these questions from your agency. . . .

Exhibit A, attached hereto, is a true and accurate copy of this January 14, 2013 letter and attachments.

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63. DEP welcomes comments from Maine’s Indian tribes on Maine’s proposed new and revised WQS, and received and considered comments from both PIN and the Houlton Band of

Maliseet Indians on the revised WQS submitted to EPA for approval in DEP’s January 14, 2013 letter to EPA.

64. EPA responded to DEP’s January 14, 2013 request for approval of its revisions to

Maine’s WQS by letter dated May 16, 2013, which states in part:

Pursuant to Section 303(c)(2) of the Clean Water Act and 40 C.F.R. Part 131, I hereby approve the following water quality standards revisions to 38 M.RSA §420, sub-§2 as set forth in P.L. 2011, Ch. 194 (LD 515) “An Act To Review State Water Quality Standards” and CMR 584, Surface Water Quality Criteria for Toxic Pollutants. . . .

EPA acknowledges your request to approve the revisions for all waters, including waters that are within Indian territories. Today’s approval does not extend to waters that are within Indian territories. EPA intends to publish a notice explicitly seeking public input on the applicability of the revised arsenic criterion in question to waters within Indian territories before completing its review. Therefore, EPA is taking no action to approve or disapprove the State’s revisions with respect to those waters at this time. In the meantime, EPA will retain responsibility under Sections 303(c) and 303(d) of the Clean Water Act for those waters. . . .

Exhibit B, attached hereto, is a true and accurate copy of EPA’s May 16, 2013 letter.

65. To date, EPA has not specified any necessary changes to any of the revisions to Maine’s

WQS that were the subject of EPA’s various partial approval letters (including EPA’s May 16,

2013 letter partially approving Maine’s January 14, 2013 WQS submission) that EPA contends would meet the requirements of the CWA for purposes of those unspecified Maine waters that

EPA claims are within Indian territories and/or lands.

66. To date, EPA has neither approved nor disapproved any of the proposed revisions to

Maine’s WQS that were the subject of EPA’s various partial approval letters (including EPA’s

May 16, 2013 letter partially approving Maine’s January 14, 2013 WQS submission) for

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purposes of the unspecified Maine waters that EPA claims are within Indian territories and/or lands.

67. To date, EPA has not provided any responses to the requests for information contained in in Maine’s letter to EPA dated January 14, 2013.

68. By letter dated February 27, 2014, Maine’s DEP again sought EPA’s approval of yet further revisions to Maine’s WQS for all waters throughout the State of Maine.

69. DEP’s February 27, 2014 request for approval of further revisions to Maine’s WQS echoes the statements contained in the DEP’s January 14, 2013 letter, again stating in part:

To the extent EPA does anything other than approve the enclosed standards in the unconditional manner requested, I hereby request that EPA:

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70. To date, EPA has neither approved nor disapproved, nor taken any other action that

Maine is aware of, in connection with the Maine DEP’s February 27, 2014 request for approval of further revisions to Maine’s WQS.

71. To date, EPA has never advised Maine 1) what unspecified Maine waters EPA contends are within Indian territories and/or lands and are allegedly not subject to Maine’s WQS, or 2) what WQS EPA believes apply within such waters.

EPA’s undisclosed and secret communications with Maine Indian tribes regarding Environmental matters, and WQS for and NPDES permitting authority over Maine waters

72. As early as 1999, and without informing Maine, EPA has communicated with PIN regarding plans to promulgate separate WQS (beyond Maine’s WQS) for the Penobscot River in

Maine.

73. For instance, in July 1999, and without informing Maine, EPA and PIN entered into a

Tribal Environment Agreement “in order to better achieve mutual environmental-governmental goals in the government-to-government relationship” between PIN and EPA, which contemplates EPA’s implementation of its alleged federal trust responsibility towards PIN, and which contains a confidentiality agreement regarding communications between EPA and PIN,

“including those that predate this agreement that are requested under the Freedom of Information

Act.”

74. In addition, by letter dated February 4, 2000, and without informing Maine, EPA wrote

PIN stating that EPA would “fully consider” PIN’s request that EPA promulgate separate WQS and administer CWA programs for the Penobscot Indian Reservation in Maine.

75. Following the First Circuit Court of Appeals’ decision in Maine v. Johnson, 498 F.3d 37,

(1st Cir. 2007), Maine’s DEP wrote EPA in mid-2008 urging it to amend its prior NPDES

17 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 18 of 24 PageID #: 18

delegation decisions with an “acknowledgement both of D.E.P.’s jurisdiction over all dischargers within the State, and that Maine’s water quality standards apply uniformly throughout the State.”

76. EPA delayed responding to the order on remand in Maine v. Johnson, 498 F.3d 37, 49 (1st

Cir. 2007) and did not take action to approve Maine’s delegated NPDES permitting authority for purposes of PIN’s facility on Indian Island and the Passamaquoddy Tribe’s Pleasant Point

Facility until March 2012.

77. EPA’s March 28, 2012 published action taken in response to Maine v. Johnson, 498 F.3d

37, 49 (1st Cir. 2007), states in part:

On October 31, 2003, EPA approved the State of Maine’s application to administer the NPDES program in the Indian territories of the Penobscot Indian Nation and the Passamaquoddy Tribe, with the exception of any discharges that qualified as “internal tribal matters” under MICSA and MIA. . . .

On August 8, 2007, the U.S. Court of Appeals for the First Circuit issued its opinion in Maine v. Johnson, 498 F.3d 37. . . . The court’s mandate was issued on October 2, 2007. . . .

EPA proposed to implement the court’s order by modifying its approval of Maine’s NPDES program to authorize the State to issue NPDES permits for all discharges within the Indian territories of the Penobscot Nation and Passamaquoddy Tribe. 76 FR 29747 (May 23, 2011). . . . As a result, the state will assume responsibility from EPA for issuing and administering the permits for the Penobscot Nation Indian Island treatment works. . . and the Passamaquoddy Tribal Council treatment works. . . Neither tribe has applied to EPA to implement the NPDES permit program, so this action does not address the question of either tribe’s authority to implement the program.

77 Fed. Reg. 23481, 23482 (April 19, 2012).

78. Shortly thereafter, by letter dated May 29, 2012, and without informing Maine, PIN wrote EPA requesting a determination that PIN “qualifies pursuant to section 518 of the Clean

Water Act for the purposes of seeking NPDES permit program approval for pollution discharges in the Penobscot River” originating from “point sources and storm water located within

18 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 19 of 24 PageID #: 19

Penobscot Indian Territory,” including “waters of the Penobscot River from Indian Island and northward thereof.”

79. By letter dated July 17, 2012, and without informing Maine, EPA initiated “consultation and coordination” with PIN regarding PIN’s “request for a determination that the PIN qualifies for treatment in the same manner as a state (TAS), pursuant to Section 518” of the CWA for purposes of PIN’s attempt to obtain NPDES permit program approval from the EPA for discharges into the Penobscot River.

80. By letter dated August 23, 2012, and without informing Maine, EPA wrote to PIN as a follow-up to a meeting between PIN and EPA Region I staff held on July 25, 2012, which EPA described as “a very positive and productive meeting, as one step in EPA Region 1’s ongoing efforts to consult with the PIN and deliberate upon your request for a TAS determination for purposes of NPDES program authorization.”

81. By letters dated March 6, 2013, sent to each of Maine’s five federally recognized Indian tribes, EPA, citing its alleged “federal trust responsibility and government-to-government relationship” with those tribes, and without informing Maine, initiated “consultation and coordination” with the tribes regarding the WQS revisions submitted by Maine in its January 14,

2013 letter to EPA.

82. Over three months later, EPA wrote a letter to Maine’s DEP dated June 24, 2013, which states that “[a]s part of EPA’s trust responsibility to the tribes, EPA must consult with the tribes in

Maine before determining whether to approve the arsenic criteria revisions [set forth in DEP’s

January 14, 2013 letter to EPA] for waters in Indian Territories in Maine.”

19 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 20 of 24 PageID #: 20

83. To the extent that EPA claims any authority to invoke a federal “trust responsibility” towards Indian territories in a manner that affects state environmental jurisdiction under the CWA, such a trust responsibility would not apply in Maine. 25 U.S.C. §§ 1725(h) & 1735(b).

84. Substantive statutes and regulations must expressly create a fiduciary relationship giving rise to defined obligations in order for any federal “trust responsibility” to exist with respect to

Maine’s Indian tribes. Nulankeyutmonen Nkihttaqmikon v. Impson, 503 F.3d 18, 31 (1st Cir. 2007).

85. With limited exceptions, Indian “reservation” lands in Maine are not held in trust by the federal government. Bangor Hydroelectric Co., 83 FERC P 61,037, 61,085 – 61,086, 1998 WL

292768.

86. EPA’s June 24, 2013 letter to DEP also invited DEP to participate in EPA’s discussions with Maine’s Indian tribes regarding tribal sustenance fishing rights, and announced EPA’s intention to seek “public input on the applicability of [Maine’s] revised criterion [as set forth in

DEP’s January 14, 2013 letter to EPA] to waters within Indian territories.”

87. The Maine Attorney General submitted comments to EPA dated September 13, 2013, on

EPA’s review of Maine’s WQS revisions as they apply within Indian territories, which, among other things, object to EPA’s public input process as being unlawful under the CWA and unnecessary, and which assert Maine’s full authority and jurisdiction to promulgate WQS throughout the State of Maine, including within Indian territories and/or lands. Exhibit C, attached hereto, is a true and accurate copy of the Comments Of Maine Attorney General Janet T. Mills

On EPA’s Review Of Maine’s Water Quality Standards Revisions As They Apply In Indian

Territories, dated September 13, 2013 (without attachments).

88. By letter dated January 23, 2014, and without informing Maine, PIN wrote to EPA referencing the “ongoing government-to-government consultations” between EPA and PIN

20 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 21 of 24 PageID #: 21

regarding the “administration and operation of the Clean Water Act within Penobscot Indian

Reservation.”

89. PIN’s January 23, 2014 letter to EPA also notified EPA of PIN’s intention to promulgate its own WQS for application within the Penobscot Indian Reservation pursuant to Sections 303 and 518(e) of the CWA, and sought EPA input on “issues surrounding any competing authorities between the EPA, the State, and the Penobscot Nation with respect to the promulgation of water quality standards with the Reservation.”

90. As a follow-up to its January 23, 2014 letter, PIN, without informing Maine, sent EPA a letter dated February 27, 2014, referencing its prior request to EPA for input on “issues surrounding any competing authorities between the EPA, the State, and the Penobscot Nation with respect to the promulgation of water quality standards with the Reservation,” and inviting the EPA Regional Administrator and Region I staff to a meeting to discuss PIN’s forthcoming

WQS application “in relation to the overall environmental regulatory regime within the

Penobscot Indian Reservation.”

91. Maine learned well after-the-fact of the 1999 Tribal Environment Agreement between

EPA and PIN, and many of the other communications between EPA and PIN and other Maine’s tribes discussing tribal roles in the administration of the CWA in Maine, only by filing public records requests and conducting its own independent research.

92. EPA wrote a letter dated April 18, 2014, apparently sent to all federally-recognized

Indian tribes (including those in Maine), which states:

[EPA] is initiating consultation and coordination with federally-recognized Indian tribes concerning a potential reinterpretation of Clean Water Act provisions regarding treatment of tribes in the same manner as a state (TAS). The reinterpretation could reduce some of the time and effort for tribes submitting applications for TAS for regulatory programs under the Clean Water Act. Specifically, EPA is considering reinterpreting section 518(e) as a delegation by Congress of authority to eligible tribes to administer Clean

21 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 22 of 24 PageID #: 22

Water Act regulatory programs over their entire reservations. This reinterpretation would replace EPA’s current interpretation that applicant tribes need to demonstrate their inherent regulatory authority. . . .

93. On or about June 10, 2014, PIN published proposed draft tribal WQS as well as a Public

Notice of Hearing and Request for Comments on those WQS, which are presumably for eventual submission to EPA pursuant to the secret Tribal Environment Agreement between PIN and EPA.

Count I – 33 U.S.C. §§ 1313, 1365(a)(2); 28 U.S.C. § 2201 EPA’s Failure to perform non-discretionary duty under the CWA

94. Plaintiffs reallege the allegations contained in paragraphs 1 through 93 and incorporate them herein.

95. Plaintiffs are citizens entitled to commence a civil action on their own behalf against

Defendants pursuant to 33 U.S.C. §§ 1365(a)(2), 1365(g).

96. Plaintiffs have provided the requisite notice pursuant to 33 U.S.C. § 1365(b) by virtue of a certified letter sent to the EPA Administrator and the United States Attorney General dated

July 23, 2013, which, per the letter’s return receipts, was received by EPA on July 29, 2013, and by the U.S. Attorney General on August 14, 2013. Exhibit D, attached hereto, is a true and accurate copy of this July 23, 2013 notice letter and return receipts.

97. Defendants and EPA each have a non-discretionary, official and public duty under the

CWA, 33 U.S.C. § 1313, to timely approve, disapprove, or specify any changes required for approval of, revisions to Maine’s WQS submitted by Maine to EPA for approval, including those set forth in DEP’s letter to EPA dated January 14, 2013.

98. Defendants and EPA failed to perform their non-discretionary duties under the CWA by failing to timely approve, disapprove, or specify any changes required for approval of, the revisions to Maine’s WQS submitted by Maine to EPA by letter dated January 14, 2013, for

22 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 23 of 24 PageID #: 23

waters that EPA claims may be within Indian territories and/or lands, as reflected by EPA’s partial approval letter dated May 16, 2013.

99. Plaintiffs are seeking litigation costs, including attorneys fees, pursuant to 33 U.S.C. §

1365(d).

Count II - 28 U.S.C. §§ 2201, 1361 - Writ of Mandamus

100. Plaintiffs reallege the allegations contained in paragraphs 1 through 99 and incorporate them herein.

101. In the alternative, should the Court decline to order the relief requested by Plaintiffs under

Count I, then there is no other adequate means for Plaintiffs to attain the relief sought, and the issuance of a writ of mandamus ordering that same relief will result in justice under the circumstances.

Requests For Relief

Plaintiffs request from the Court the following relief: a. An order and declaration that the State of Maine’s jurisdiction for all environmental purposes, including all WQS and WQS revisions under the CWA, extends to all waters of the State of Maine, including all waters arguably within Indian territories and/or lands; b. An order and declaration that the revisions to Maine’s WQS submitted by Maine to EPA by letter dated January 14, 2013 (Exhibit A), are deemed approved by EPA and in effect throughout the State of Maine, including those unspecified waters that EPA claims are within

Indian territories and/or lands; c. An order awarding Plaintiffs their attorneys’ fees and costs incurred in bringing and maintaining this action pursuant to 33 U.S.C. § 1365(d) and 28 U.S.C. § 2412; and d. Such further and additional relief as the Court may deem just and proper.

23 Case 1:14-cv-00264-JDL Document 1 Filed 07/07/14 Page 24 of 24 PageID #: 24

Dated: July 7, 2014 Respectfully submitted,

JANET T. MILLS Attorney General

/s/ Scott W. Boak SCOTT W. BOAK Assistant Attorney General Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8566 Fax (207) 626-8812 [email protected]

GERALD D. REID Assistant Attorney General Chief, Natural Resources Division Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8545 Fax (207) 626-8812 [email protected]

PAUL STERN Deputy Attorney General Chief, Litigation Division Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8568 Fax (207) 287-3145 [email protected]

Attorneys for Plaintiffs

24 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 1 of 120 PagelD 25

Oi FrRJI

1) i.;`, 10 RiNiENT 011 ENV I RON/MINT/IA, PR OTECTI ON .1q04), ilkDO°

PATRICIA. We A H PAUL R C(PAG GOP.11, MMIIER ErVITMOA

d. EXHIBIT January 14, 2013

Curt Spalding, Regional Administrator EPA New England, Region 1 5 Post Office Square Suite 100 Boston, MA 02109-3912

RE: USBPA Review of P.L, 2011, Ch. 194 and revised 06-096 CMR 584

Dear Mr. Spalding,

administered the Et man of Enclosed are materials concerning changes to water quality standards by Land and Water Quality of the Maine Department ofEnvironmental Protection OA DEP). These This includes: materials are provided for EPA's review as required by 33 U.S, C, 1313(c), packet

A lint of recent changes to statutes and rules. A memo providing information concerning these changes. Copies of the chapters and rules described in this packet. Copies ofother supporting documentation. relating to these changes. A letter from Gerald D. Reid of the Maine Attorney General's Office certifying that the statutory changes affecting water quality standards were duly adopted pursuant to 81:ate

which in We look forward to EPA's timely review and action, pursuant to 40 CFR 131.21, provides part that:

(a) After the State submits its officially adopted revisions, (he Regional Administrator shall either: (1) Notify the State within 60 days that the rtvisions are approved, or (2) Notify the. State within 90 days that thetrevisions are disapproved. Such notification of disapproval shalt specify the changes needed to assure compliance with the requirements of the SU di Act and this regulation, and shall explain why the State standn rd is not hi compliance with of requirements. Any new or revised Slate standard mud be accompanied by some typc supporting analysis,

..ttic.i.i STA FIE r? STry112. I [0111E :nolom liANG.ovt PORTIAND VIZE8Q1.113 1235 CENTRAI, OlitiVI?...... ZR4i'VeW PARK A UCOLIITPA, MA IN LS 1.14ni-al P i b11.6 P.I.00W,4110iti) 3 i 2 CANCO RO•D il..111N!1 n10.:1 PRESQUE f2,11, UM NiE (470-)09,1 pa?) 621-irissr niyix: OP) 6/Irridel IMIQC;01.4.. M MN] fd11-1401 powaAND. 8n..00 RAN! .22..riii3 'RI 4-6•1.2i Ir.n.:. 16.F' i 5.07 RAY 19 n i 3., 1101131ra !IT. (2117.1 94 P, 1570 Iyo, op) 94 p..45st,[20 on) (240) CAM

Arcb Fibr. 111710011/Alq) Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 2 of 120 PagelD 26

USBPA Reviev.i ofPl. 2011, 0. 194 and Clmp tex 584 Pnge 2 of 2

In recent years, EPA's approvai of new or revised water quality standards in Maine has included language to the effect that the approval "does not extend to waters that ate within Indian territories and lands." Although it should not be necensEny, by this letter I am expressly requesting that EPA approve the enclosed water quality standards as effective throughout the State ofMaine without distinction as to waters within Indian territories or lands. There is no basis in the law for such a distinction, as Maine's environmental regulatory jurisdiction in uniform throughout the State, including as to lands and waters tha EPA might co:Inside.' to be Indian. Maine v. Johnson, 498 P.3d 37, 43 (1s1. Cir, 2007) (Maine Indian Land Claims Settlement A•t, and particularl)' the Maine Implementing Act at 30 M,R, S. 6204, is and "about as explicit as is poSsible hi conferring environniental regulatory authority over Inclian lands waters on tho State).

To the extent EPA does anything other than approve the enclosed standards in the unconditional manner requested, I hereby request that EPA:

-Identify with specificity each water body or segment thereof to which EPA, contends the enclosed standards do not apply because they are waters "within Indian territories and lands"; and -Explain with specificity what water quality standards, if any, EPA contends are applicable to such water bodies or segments thereof; and the regal basis for that conclunion.

water As I am sure you can appreciate, ifit is indeed EPA's position that Maine's duly adopted quality standards do net Apply to seine subset of waters within the State, then bothlVIDEP and Maine's regulated community are entitled to clear answers to these questions from your agency.

if Thank you for you assistance in this matter. Please contact Mark Margentm (207-287-7842) you have any questions or concerns as soon as i8 reasonably possible.

Sinc 161, tr cLa io, Commissioner

ec: Mick Kuhns, Director, Bureau of Land and Water Quality; Brian Kavanah, Direetor, Division ofWater Quality Managemalt Don Witherill, Director, Division of Environmental Assessment Susanne Meidel, Water Quality Standards Coordinator, DEA Jan McClintock, Assistant Attorney General Gerald D. Reid, Assistant Attorney General, Chief, Natural Resources Division Ellen Weitzler, USEPA Region I Steve Silva, USEPA Region 1 Dave Webster, USEPA Region 1 Bob Stratton, Maine Department of Inland Fisheries and Wildlife Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 3 of 120 PagelD 27

Maine Depariment of Eilvkoluncntal Protection Changes to Maine's Water Quality Standards ("The Docket") January 14, 2013

List of Changes to Maine's Water Quality Standards ("The Docket")

;FE

P.L. 2011, Cli, 194 (LI) 515). An Act to Review State Water Quality Standards. Effective Septernber 28, 2011.

Description: Sect/ion 2 of Chapter 194 changes Maine's water quality standaiVa by amending Title 33 MRSA §420, sub-§2, adding a new paragraph J which direc[s the DEP to use a one in 10,000 risk level when calculating ambient water qualily criteria for Inorganic arsenic. Chapter 194 also adds a new and provision for mercury testing for facilities gift 38 MRSA §420, sub-§1-B, IlF), provides language regarding waste discharge licenses (Title 38 MR S A §464, sub-§4, 11,1 and IC).

Public Hearing; Tuesday, April L6, 2011, 1:00 pin, Cross Building Room 216 Work sessions: Tuesday, May 3, 2011, 1:00 pm, Cross Building Room 216 Wednesday, May11, 2011, 1:00 pm, Cross Building Room 216

06-096 MLR 534, Sinface Water Quality Criteria for Toxic Polintonts4 Rifeciive July 29, 2012.

De,scription; Tbis rule revision changes the cancer risk /eve for inorganic arsenic used in calculating ambient water quality (human health) criteria and establishes rev/sed inorganic arsenic criteria accordingly, Further, this revision updates Maine's ambient waber quality and human health .criteria for pollutants for which USEPA has npdated criteria since Maine's last revision in 2005, using Maine- speeltio parameters where applicable

Public Hearing: November 1, 20111 9:30 am, DEP Response Services Training Room Written Public. Comment Periods: November 1 December 1, 2011; March 14 April 131 2012

Notes.' The list of statutory and regulatory amendments above is based on Department legislative and rulemak log records, as won as a review ofthe most recent cross-reference tables published by the Maine Legislature, available at their website and published in the Laws of the State ofMaine. through 20111 Volume 3,

Rulemaking hearings are noticed on the Maine Seereteiy of States website, on line. DEP's website, by mail and email notice to subscribers to the DEP's ruleinaking notice list, and by publication in Ike legal notices of the Bangor Daily News, Lewiston Sun Journal, Kennebec Jouirisl arid Portland Press Herald.

Page 1 oft Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 4 of 120 PagelD 28

Maine Deportment ofEt rth.onmental Protection Memorandum Des eribhig Recent Changes to Maine's Water Quality Standards January 14, 2013

giatigainn7-7.00-Mitr.10.401100ftrieratraNNAMENNALIAN

2011, Ch. 194 (LD 515), An Act to Review State Water Quality Standards. Effective September 28, 2011,

Section 2 of Chapter 194 changes Maine's water quality standards by amending Title 38 MRSA. §420, use. a risk level when sub42., adding a new paragraph J which directs the DEP to ono In 10,000 oak:dating ambient water quality ern eria for inorga ni a a meoic. The Depailment has implmented this change through the amendment of the Department's rules, Chapkr 584, Surface Water Quality Criteria for Toxie Pollutants, as described below.

Chapter 194 also makes changes to testing requirements and other licensing requirements for discharge pmnits, gcal ion 1 of Chapter 194 provides die Department the ability to reduce mercury testing for discharges if there is at least five years of test data. Section. 3 of Chapter 194 adds two new paragraphs to Title 38 MRSA §464, sub-§4. The first allows the Depa Omen( flexibility in. the use ofany allo cal ion set aside for future growth, such as the water quality reserve specified in Deparhinent Regalaition Chapter 530, Surface Water Toxic6 Control Program, when ea lcul si ing discharge limits for toxics. The. second paragraph added by Sedien 3 specifies that. permi( limitations for metals he established only as mass based limits.

An Act Review State Enclosed are the following exhibits ilating to P,L. 2011, Ch. 194 (ID 515), to Water Quality Standards: Ex, 1 Marked up version of PL 2011, Chapter 194, as enacted by the Maine Legislature Ex, 2 Clean Copy of M.R,S.A. Titie 38, See [ion 420 Ex, 3 Clean Copy ofM.11,S,A. Title 38, Sec ion 464 Ex. 4 Public Comments submitted at legislative hearing Ex, 5 Certification by the Maine Attorney General's Offiee that the law was duly adopted pursuant to state law

=JP22:-7-

06-096 CAR 584, Surface %ter Quality Criteria for Toxic Pollutants, Effective Suly 29, 2012.

The July 29, 2012 mnendments to the Depaiiment's Chapter 584 rule iinpleMents the risk level risk level established by P.L. 2011, e. 194, which is liged above. This rule revision efianges the cancer for illorganie arsenic used in calculating ambient water tpality (human heath) erileria ond establishes revised inorganic arsenic criteria accordingly. Purifier, this revWort updates Maine's ambient water quality and hamEin health criteria for pollutants for which USEPA 11PS updated eritoda duce Mahie's last revision in 2005, using Maine-specific parameters where. applicable.

Water Revisions to Chapter 584 were initiated pursuant to P.L. 2011, a. 194, An Act to Review Stet Quality Standards, signed into law by the Governor on Jima 1, 2011, Over the next several months, of Health M1DEP held numerous meetings and communications with USEPA and the Main a Department and Human Services' Division of Environmental Health to address the, requirements of P.L. 2011, a. 194

rue 1 oil Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 5 of 120 PagelD 29

Maine Department of Environmental Protection Memorandum Describing Recent Clumges to Maine's Water Quality Standards January 14, 2013

the Federal Clean Water to ensure that. the Department's actions would comply with therequirements of Act and our mandates under slate water quality law.

On September 14, 2011, 1v1BDEP provided the Notice of Agency Rulemaking Proposal mid the Rolemaking Fa0E Sheet for proposed changcs to Chapter 584 to those faciliftk iurriitly partidpaliiig in the Department's toxics program, individuals who have expressed interest in either ibis specific effort or Department rulemaking In general, state. and federal agencies (inchiding EPA) and other puties typically involved in the review of draft Maine Pollur.ant Discharge Blimination Syslem Permit and Maine Waste Discharge. Licenses for watera of the. State ofMaine.

On September 16, 2011, The Notice of Agency Rulemsking Proposal for Chapter 584 was published in state.wide newspapers pursuant to the requirements of 40 CFR. §25,5,

On September 20, 2011, MEDEP provided copies of the existing Chapter 584 with proposed changes on the indicated to the above group of interested parties. Shortly thereafter, the proposed nile was placed Department's website.

On October 4, 2011, the proposed rule was submitted [o the. Maine Secretary of Stales Office and on October 12, 2011, the Notice of Agency Rulednaking Proposal for Chapter 584 was published iii taking(115 newspapen pursuant to the requimments of the Maine Administrative. Procedures Act.

Pursuant to Maine Law, 38 M.R,S.A,, Section 341-H, the. Department of Enviroimien hal Protection The record for conducted a public hearing regarding this rule. on November 1, 2011, in Augusta, Maine, written comments remained open until 5:00 pm on December 1, 2011. The Department reviewed all oral and written coiments received, including those from USEPA. In response to evidence received at the hearing and written comments received from interested parties, the Department prepared a written differed Response to Conune.nts and proposed additional changes that resulted in a proposed role that considerably from the Department's in itia 1 proposal.

On Mara 13, 2012., MEDIA' provided copies of the existing Chapter 584 with both initial and newly proposed changes indicated to the above. group ofinterested parties,

On March 14, 2012, pursuant to the Maine Administrative Procedure. Act, 5 MRSA, *8052(5), the Department reposted the proposed rule fDr comments from the publie concerning the changes from. the The initial proposed nile. Tk second comment period. remained open until 5:00 pm. on April l3, 2012. Depariment reviewed all comments received and subsequently prep ared a written Response to Comments, On rune 12, 2012, the Basis Statement, Response to Comments, and proposed revised Chapter 584 were submi[ted comments. placed on the 1Depa rtment's web s he and provided to parties wlio previously

of Pursuant! 10 38 M.R.S,A.,, Section. 3414-1(3)(0), on June 12, 2012, the Department. Environmental of Protection provided notice of and, on Arne 19, 2012, COM(11.11cted a public mecting for the purpose receiving additional limited public comment on this ruleNo add itional public comments were received.

The Mahie Rule 06-096 CMR 584 amendments were adopted by the Commissioner of the. Maine Department of Environmental Protection on July 13, 2012, and approved as to form and legality by the Assistant Attorney Cleneral on July 16, 2.012. The Rule amendments were filed with [he Maine Secretary Maine Administrative of State. which assigned an effective dale ofJuly 29, 201.2,, in accordance with the Procedures Act.

Page 2 of3 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 6 of 120 PagelD 30

Mai•e Department of Environmental Protection Memorandum Describing Recent Changes to Maine's Wate.r Quality Standards January 14, 2013

Enclued ace tlie following exhibits roialing to 06-096 CMR 584, Surface Water Qimilty Criteria for Toxic Pollutants Ex, 6 Marked-up copy of the iiIe Ex. 7 Film) copy of die role Ex, 8 Teeimieal/scientific basis statement, including public commente received in the rulemaking process and MDEP) respoom to ihose coaunenh HX, 9 Copy of the public notice for the public hearing related to the rule rovhdon (2 docuntent) 13x. 10 CertifleatIon by the Maim Morney Geneas Office tho the rale was duly adopted pursuant to state law

Page 3 of3 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 7 of 120 PagelD 31

APPROVED CHAPTE.R

STATE OF MAME BY GOVERNOR puBLIC LAW

IN TnE YEAR OF OUR LORD EXHIBIT

TWO THOUSAND AND ELEVEN

SA 148 L,D. S15

An Act To Review StMe Water Quality Standar&

Be it enacted by Ihe People of the Stakof 0&iine s Collows:

Sec. I. 38 MRSA sula-§1-B, IF is enacted io read:

F, The department rnay require mercury ming once per year for facililies that Inrain ef easi S yews of mcremy lestthe dale.

Sec. 2. 38 MRSA §42O1sb-2., J Ierwited to read:

kasitopmpldioaq ot er Rrovi8ion ol liny to tbe..contrary, the department shall use a one In KUM rlsk level when ca1culatlnR ambient water ourilltv criteria for jnorgailp.merdc.

See. 3. 38 MRSA §1164, SP b-§4, ¶I.1 and IC are nnaeled to rendL

awl(' nib e a crileria or a 1eInaIhi by Ihe de !anrneat of a reasouktle Wendel to exceed applicable' ambient water:

K. r q.ilrcd b hp_pikai_c_fil_u_.1cot del i nei ado led by the deperarent, any ilrohatIoN for nwtqb in wasie discharge license rnay be expressed tutuulujawitinix

hge I (251.1111939(03):1 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 8 of 120 PagelD EXHIBIT

38 §420. CERTAIN DEPOSITS AND DISCHARGES PROHIBITED 38 §420. CERTAIN DEPOSITS AND DISCHARGES PROHIBITED

No person, Ernk„ coroormion or other tege I entity sIkallpdace, deposit, discharge or spi]I direcdy Or Ind ireelly, iro the ground water, inhind surface waters or tidal wafers of this &ate, or on the ite thereof, or on the hanks thereofso Ibrif the some rnhy flow or he washed Into such waters, or in slreh manner that the drainage therefrom kumy flow into such waters, any of the following substene (19 e 9, c, 80, P. A, n40 (APP) 1989, 0. 090, Pt. B, 537 (A1..1D)

1..lvforeory,

1999, C. 500, 51 (RE

I-A. Mercury,

2001,, c. 410, 02 (RP), 11

1-13, Melva ry. Facilities discharging mercury info the waters of the State shall make reasonahk progress to develop. incorporate and contintiously improve pollu provention practices, find implement economically Achievable fu Lure improyarnergs in wnstewater lechnology, In order to reduce their dependence of the IVOR mercury products, te (WOO or remove discharges of mercury over lime, and help in the resioralinn waters of the State. This subsection establishes ambient water quality criteria for mercury that identify that level of mercury consfdend safe for human health rind the crwironment. A,.The ambient criteria for mercury are M follOWs; (1) Ambient water qua/ity criteria for agnalic 11a (e) Freshwater acute: 1.7 micrograms per liter; (h) Freshwater chronic.: 0.91 mICrOgJAMS per (e) Sliltwater aonte: 2.1 micrograms per Met; and (d) Sallwarer chronic'. 1.1 micrograms per liter; and (2) PIsh tfsswe reaklue criterion for hnrnan health: 0.2 milligrams per kifogrn.m In the edible portion offish, (2001, c. 418„ 5 3. 1 13. A facility is not hk violation of the ambient criteria for merckny if (I) The facility la in compliance with an interim r]ischorgeiinft esIti Wished by Inc deparlment porskieut to sec tion 413, subsection 11; or (2) The facility fa in compliance with a remcdis ban or correciive iieLior Ann, licCnse or order approved either by tho deparirrient pursuant to section 1301, 13114, 1319, 1364 or 1365, Or bY the United States rinvirmunen ta1 Pre teetion Agency under federal low with the concurrence of the department. (2001, c 41.0, 53 (ITEM) .1 C, The depnritinent may establish a site-speailic bioticcumolation factor for moroury when there is sufficient Triforrna [ion to Indicate that a site-speci% bioncomnulallon factor W Ii bc proketive ofhuman nith find w]ldlifc. A site-specific bioaccornulation factor may only be established: (1) As per of H licensing promditig pttment to section 413 by the board; or (2) As part era remediation or cormciiin ectiolipEsu, license or order approved either by the department pursuant to see L ion 1301, 1304, 1319.1364 or 136.3, or by the United Stntes EnviromnenlaT Protection Agency under federal Imv with kbe eancuirence of the depulosent. (2001, c. 418, &3 (NW .1 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 9 of 120 PagelD 33

MR$ TL §420. CERTAf NI ID EPCAS ITS AND ISCHAR3S PROHIBIITED

D. The department shall establish by rule a sl al wide bioaccumuhvion factor protective of.95% of the waters of the State based upon data ti acceptable qua My and repreanring tiro spooks consumed by the ptthlic following guidelines flub Retied by the United Slates Environmental Pmtection Agency, .Rnles dopced pursuant to this paragraph ilre major substantive rules as defined in Title 5, chapter 375, subchapter fi-A. r2003., Cr 418, §3 NEW). E;:rlia department shall establish by rale statewkie ambient water quality criteria for mer•ury coneorning wildlife based upon data of acceptable quality from the State or the United Slatcs Environmental Protection Agency: Ruks adopted pursuant. to this paragraph are major substanti•e rules Bs defined in Title 5, OOP ter 75, Sibthriptor IrAN 2 01 418, 52 01.EN). F. The department may require meremy testing once per year for facilities that niviniv in at least 5 years moreufy testing data. 194 1. (Mtn, 3

The commissioner abail repon to the joint standing committee of the Legislature having jurisdiction oVer natural resources matters by halos ry 15, 2005 and by Januaq 15th every 5111 year Own alloy on the s tams of inmsnt of mercury discharges, progress in buiplementing pollution prevention plans and progre-ss toward al to apnbi eat water quality criteria for mercury ader this subsciction. The report roay include proposed siahitory amendments. Thejoint ccc iid ing committee of the Logislaturo havitigjurisdiolien over natural resourcea ma Kers may report oar any necessary implementing legislation related to these mercury issues in each session in which a re.port is required under this subsection.

2011, c. 194, gl (Fin))

2. Toxic or hrizurdons substances. Ally oilier toxic substance in any amount or concentration greater than that Identified or regulated, irLcioding comp te prohibition of such substance, by the board. in identifying nod regulating soclill.ONio subs Lances, ihe board shall take into accomit the toxicity of the substance, i la persistence end degradability, the Mid or potent i presence of any organism affected by of 311011 81.1bStfilliZe in any waters of ihe State, ihe importance of such organism and the nature arid extent the effect or mach substance on such organisms, either alone or htecanhinntion with substances already in the receiving waters or the discharge. As used in this subsection, 'toxic substance shall mean thoso slibstAnCe.9 or combination of substances, including disease causing agents, which after discharge or upon exposure, ingestion, inhotation or assimilation foto any organism, including humans either directly ihrqugh the environment or indirectly through ingestion through food chains, will, on the basis ofinformation available to the bioard either alone or in combination with other substances already in. Eke receiving wet OTS or the discharge, cause death, disease, abnormalities, cancer, genetic mutations, physiological malfbnctions, inclutiktg malliract ions in reproduction, or physical deformations in such organism or their offspring, A. Except as naturally occurs or as provided in paragraphs B and C, the board shall regulate toxic substances in the surface waters of the Stale at the le viols set forth in federal Walter qoahty criteria as established by the United States Environmental Protection Agency pursuant to the Federal Water Pollntion Control Act, Public Low 92-500, Section 301(0, vs amended. t1985 e. 056, §2 (tlEW) 1989, C. 1356, S'? APP), .3

B. The board may change [lie statewide criteria established under paragraph A for a partiollar toxio subv Boca established pursuant to the Federal Water Pollution Corirrol Act, Public Law 92-500, Seca= 3t4(a), as amended, as follows: (I) n,y adopting s[te.spcific numerical criteria for Ike toxic snbstance to reflect site-spec:Me circumstances difforeat from those us 4..4. iii, or any not considered in, ilie decivarion of the s[n[o\vide. criteria. The board shall adopt fte-speeinc numerical criteria only as part of a licensing proceeding 110 sect ions 413,,1 I ill Rad 414-A; or (2) By adopting alternative statmide criteria for ill e toxic sobahance. The alternative statewide criteria ntu st be adopted by rule. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 10 of 120 PagelD 34

tyme rata 30 §420L. C ERTA111 DE POSITS AND D1$01-tARCM PROHIBITE.D

established The board moy subs[itute site-specific e rl ter] A or alreniAtive statewide criteria for the criteria kre based in pfuligraph A only upon i finding that the site-specific criteria or aItcniti tatewide criteria on sound scientific rationale and are protective of the meat sensitive desigimted use of the water bodYi including, hut not limited to, human coon n]pl ion of fish'and drinking water supply atter Irentment. 956 (19 C. 856 r N2 Ca49, a. 67 (AFF•).) C. When surface water quality standards-are not being met duet0 the presence off, toxic substance for whichil0 14. Ater quality criteria have been e-siabl ished pursuant to the Federal Vora tor Pollution Control Acti Section 10,1(a), es amended the board shall: (1) Adopt statewide numerical criteria by rule; or (2) Adopt site-•pecific numerical criteria As port oFe licensing proceeding under sections 413, 414 and 414-A. Nal hing in this section restricts the authority ef Illic hoard to adopt, by role, 2(8 twitle or site-sliceillt multi kat criteria for toxic substances that are not presently causing water quality standard$ lobe violated, [1989, c, 955, g2 (N2t4)., 1999, c 856, 57 (AFFl kvel of a For any crkeria estahlishe.d under Ihts subsection, the board shall establish [he acceptable. additional risk of cancer to be borne by the offeeted population from exposure to the toxic substance believed to be carcinogenic. (1989 0. 856, 52 (NEW) 1989 a. 8S6,, 57 (AFP) .11 i. In regulating eubstances that are toxic to bunions, including eny rulernaking to regulate these siubstanocs, die hoard shall consider any information providcd by the Department 0fHeallii and Human Sendeos. (19e9 c '5 6, 52 alEvn 1909, c. 856, 57 A?F)I 2001, C. 6a9, P. B, §6 (R21.7), F. The Depattment of Health and Human Ser.iloes may request that the board adopt or revisal the 1f statewide or site-specific criteria for any toxic substance based on the nced to protect pub& herdtb. the reques[ is filed with he board, the board moy propose a PAO and 'initiate a rule-making proceeding. The boo rd shall incorporate in its proposal for rulemaking under this paragraph the statewide or site- a. specific or] twit, reummended by the Department oi1-ieauIl and 'Human Services. [19a9 13'56 .r 0. 2003 C, Pt. 8 5 .11 §2 (N8c1) 1989, 355 r q7 (APE') 689, (RUC, 0, Nuraelie water quality criteria for 2, 3, 7, 8 tetrachlorodihenzo-p-dioxin es[ablislied by the United States Environmental Piro [action Agency under the FQderal Water Pollution Control Act, Public Law .92-500, Section 301(a), 02 ameuticid, do not apply until Tune 1, 1991, and only apply on !Int date i• the board has not adopted through rulemaking or individual licensing proceedings under this section alternative numeric water quality criteria for 2, 3, 1, 3 tetrachlorodibonzo-p-clicxin. rinsnantio gee rion 414-A, subsection 2, the board shalt establish schedules for compliance with criteria established under this section. These sthedilles must be consistent with the compliance deadlines established under the Federal N.i.taler Pollution Conlrol Act, Public Law 92-500, Section 304(0, as amended. 11989 856„ 52 1989, C. 56, 57 (AFF1 H. Notwithstanding paragnylis D and 0, the board may not adopt any numerio toga ter luah ity criteria for, or fl cccptable level of additional ennoer risk from exposure lo, 2, 3, 7, teirachlorodibenzo-p-dioxin prior to January 1, 1994. f19931 o 240, 51 (NEW) .1 to a Meech 1. Notwithstanding any other provision dans section, the following slandords apply only kiaft pulp mill, referred to in this paragraph ss a "mill." (1) Alter Suly 31, 1998, a mill may not have a detectable quantity of 213, 7, 3-1etrachlorodibenro- p-dioxin as measured iii ally internal waste stream of its bleach pleint., For purposes of compliance, the detection level is 10 plcograms per liter, unless !he deportineni adopts a Lower detection1evel by cr a tower nil e, which is a routine technical ni le pursuant to Tick 6, chapter 375, subchapter 2-A, detection level by incorporation of a method ill use by the United Slates EnvironmentalProtection Ageney. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 11 of 120 PagelD 35

MR8 Tile 42O. CEFTAII4 131 POSITS AND DI.S.C1-IARc3E8 POHIrnTEI

(2) After December 31, 1999, a mill may not have a detectable qunlity of 2, 3. 7, 8- tetrachlorod ib enzo-p-,furen as measured in any intermil waste stream ofi Is bleach plani. The commissioner may extend Ibis time tame up to 6 months for a mill if the cornmissioner de lorminitS. based on information presented by i he mill, that compliance is not achievable by the dead lin& duo to engineering constraints, avai labiiity of equipment Or other justifiabIo technical retiSoith. 'For purposes ofeomplianee, the detection. level is 10 pie ograms per liter, unless the. department adopts a lower level of deteolon by rata, which is a routirie technical rule pnrSnant lo Title 5, chapte.r 375, skibchapter 2-A, or a lower detection love] by incorporation of a method in Imo by the United States Etwironmenint Protection Agency. Ifs mill fills to achieve Lhis revirement, as doolimented by confirrriatory sampling, it shell conditef a s ite-specifie evaluation of feasible• kolinologies or measures to achieve it, This eveluarion must ho submitted [o the commissioner within. 6 months of the date of emifirmatory sampling and include nth= I able for implementhtion, acce.piable to the cormnissioner, with. an Impicrnentation date no Wes then December 31, 2002•. The commissioner may os tab iish a procedure for confirmatory sampling, (3) Aft•r December 31, 2002:a mifi may not discharge• dioxin iato Its receiving waters. For purposes of this subparamh, a mill is considered to have discharged dioxin into ifs receiving waters if 2, 3, 7. 8-tetraohlorodiberyzo-p-dioxin. or 2, 3, 7, 8-tetrao1!1oroditienzo-p-f1ran. is detected in any of the mill'& internal waste streams of its bleach plain and i!1 S confirmatory sample at levels exceeding 10 picograms per liter, unless [he departrnent adopts a lower dellecl ion level or a by rum, which is ii routine technical mile pursuant to Title 5, chapter 375, subchapter 2.-A, lower detect i ou level hy incorporation of a method Muse hy the United. Sta tes Environmental Protection Agency, or if levels of dioxin, as defined in sec[ion 420-B, subsection. 1-A, paragraph A dolected in fish [issue sampled below i he mill's wastewater outfull are higher han levels in fish or on basis tissue sampled at an upstream reference site riot affected by the imll1s discharge the of n comparab iv surrogate procedure acceptable to [he emir' issionet, Tho toininissioner shalt consuLt with the tec.hnical advismy group established in section 420-B, subsection 1, prag raph BI, subparagraph (6) in making this deterininatiori and in evaluating surrogate prom-lures. The fah- tissue samplhig test iniot be perfonnod with differences between the average concentrations of dioxin in the fish samples taken upstaearn end downstream from the mill measured will h at least 95% statistical. confidence, If the mill fait, to meet the fish-tissue sampling-result reqiii cements in this subparagraph and does no demonstrate by December 31, 2004 and annually thereafter to the commissioner's satisfaction that its wastewater' disoliorgo is not the source of elevated dioxin co neon/rations. in fish below the mill, then the COMMISsioner itrmy pursua any veinedy authorized hy

(4) For purposes of documenting compliance via subpalftVapliS• (1) and (.2) the internal waste stream of a Meech pionL Mal be, sampled twice per quarter by the mill. The deparbrient may conduct its own sampling Ind analysis of the internal waste sirearn of a bleach plant. Analysis of the samples must be condue[ed by a 3rd-party laboratory using methodology approved hy the United Stares Zwirnomenia[ Protection. A.geney, A mill shall report to the department for in rennatioac le 1311.1 I-poses the actual laboratory results inclading sample defection limits en et frequency be established by the commissioner. The commissioner shell eSseSS themill for the costs of any sampling PM-formed by the dqiciviment to the and !my (Lid alysis pciformed for the department under this paragraph and credit funds received Maine Environmental Protection Fund.

The commissioner may reduce the Prequeucy of sampling required by a mill after 3 consecntiVe years ofsampling have demonstrated the mill does not have a doleOtable glirunlity of 2, 3, tekachloroclibou2o-p-diexie ar 2, 3, 1, 8-tetrachlorodibenze-p-lbrart. r 2007 a. 5 55 (AMD).

41 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 12 of 120 PagelD 36

MR8 lila 3054.20. CERTAIN DEPOSETS AND DISCHARGES PROH191TED

J. Notw ithera lading say oihe.r prw,dision oe law to Elle Conway, the depariment shall use a i)ne in 10,000 risk level when calcu /Ming ambient watcr criteria for inorganic atacnic. 12011w 194, (REW)

2011, C. 194, 62 (AAD) r)

3. Radialiogiuil, chemical w. biological warfare agents.. Raclioiogical, chemical or bio[ogical warfare agents or high level rsdiosetive wastes.

197.3, c. 450, 5.18 (NEN) .1

SECTION HISTORY 1971, c, S44, 5130 MEL•. 1971, c. 6113, 512 (AND). 1573, 450, 518 (MD). 1079, c. ]27, 9210 {Amp) 1979, c, 472, 614 (AND). 1953, c 566, 523 (AND). 1969, C. 656, 662, 7 (b1L 1909, C. 090, 59A40, 1337, 35 (AMD). RR 1991 c. 2, 9141 (CGR). 1993, c. 240, 61 (AND). 1997,. .144, 67 (AND) 1997, c, 722, 551, 2 (MD) 1999, c. 500, 561, 2 (AND) 2001, c. 418, 552, 3 IVID). 2003, 0. 155, 61 (AMD) 2003/ c. 669, 5B6 (REV) 2007,, 565, 51 (AND). 2011. 194, 661, 2 (MD),

Shic claim cepyrigThith ills codified stattam liyea intend to irpublkk this inalcdal, wicçiiu e Mai you. 41.0o:reale renewing dIsafidmer yourpublicaiion: All alppighhafki other Mks to &ciliary kV firtr ra.serwo gra SraiS 9Thrrotfo. The lea inchaied51 irh.r.s prsbilargon Weds haves =IA firworei iIFjJl Specled Saifim flhr 125th Merlem Legarrirm cronori Onuottgi, December 31. 2011, fry Wis,yritijed lo changewilhoN1 trorice. 11 Is er iv$J.iJ dm+. has Hust /Teen cOrially T cervfied by the 8ecimy DiStore. *fi• le theMeg RepisvdRetetesvbrowared skupfetnamfor cell* The OfficoofilLeRcvig.r cf Stototcs atuorequesIs that yam send NU ano copycfanysfithilory prililicarEackyan otayprcril ice. Oilf goo is now nes.ificurniblishing arrivity. but to ktp rackorwflo is iniblIshing what, io idea* ouy cruplicalion and to presei-ve the Stoke$ copyright nen&

PLEASE NOTE: Tim Rryisoes Offieccoaaclperforalrmeatch car Dr provide legal advice Or in berprolaiion ofMainclevie ihe pLitille Ifyou need legai FFohlcø, please mac a qualiflaiallonicy. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 13 of 120 PagelD 37 EXHIBIT I 3

38 §464k CLASSIFICATION OF •MAINE WATERS 38 §4e4, CLASSIFICATION OF MAINE WATERS The waters of the S iAte shall be classified ii accordance with this article. 11.985. 698, flinciT) 1

1, Findings; objectives; purpose. The Legislature finds that the proper management of the Siatela water resources is of great public in I crest and.eoncem to the State in proniol in g the general welfare; In preventing discaae, lii 1.1.romeling health; in providing hshiret fer.fish, shellfish end wildlife; as a SotiFoe of recreational. opportunity; and as a resource for lc cantnerce and iudtistry. The Legislatule declares that it is the Slate's obi Ktilre tO re-00re and maintaki the chemical, physical nod biological integrity of the Stalds waters and to preserve cerraill pristine strife waters, The Legislature fUriber declares that hi order to achieve this uhjeclive the State's goals are: A. not the discharge of poilra [anis inb the waters of the State be eliminaled where appropriate; {1985, c, 698, S15 MEV).

B. That no polluisols be discharged into any waters of the State without first being given the degree of treatment necessary to allow !hose waters id sCieia their classification; and (1585, c. 650, 515 11.4M0 C. That water quality besufficient to provide for ilia protection and propagatlm offish, shell iish and wildlife arid provide for recreation in and on the water. (1.98s o. 698 (N139) The Leg'i danne intends by passase of this article to establish a water quality elassigeal ion system which will allow the Shire to manage its surface waters so as to protoct the quality of those waters and, where water quality standards are noi being achieved, 10 taance water quality..This classification system shall be based on water quality stand ends whicli designate the lits68 Mid related characteristics of those uses for each class or water and which also eslablish water (-polity eriteria necessary to protect those uses and related tharaetedstics, The Legislature further intends by passetge of this article to assign to each of the Slaters surface waiter bodias the watar quality einsstrieaUon shalE deSigLiMe the minimum level of quality which the Legislature intends for' lhe body of water. This designation is intended to dined lite State's management of that water body in order to achieve at least that niinirrruin level of water quality.

198E, a, 698, 515 MEW)

2. Procedures for reclassification.. Reclassification ofstate waters shall he governed by the following provisions, A. Upon petitkni by any person or on its own motion, the board may initiate, followiug publit uiOliCO, and the commissioner shall conduct classification sotdi es and investigations. Information collected (hiring these siradies and investiga I ion s must he made available ro the public in so expeditious manntr. After constiltation with other state agencies and, where appropriate, indMdeals, citizen groups, I iidusi ria.„ municipalities and federal And hraerstate wMer pavilion emitrol agenc-ies, the hoard may propose changos in water classification, (19.89. 890, P. PL, 540 (APP); 1565, c 050, Ptr 2, 554 fAMD). a The bonrd shah hold public hearings in the affected area, or reasonably adjacent to the affeeled nrca, for the purposes of presenting 10 all interested persons the proposed classi rya tiOn for each psrfte.uiltir water body and obtaining public input. 989, 0. 890 Pt $40 (AVV); 1505.. c 890, pt. B, (POD), 11

C. The hoard may recommend chlorates in classification it deems necessary to the Legislature. (1.985, c, 698, 515 (MVW), 1 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 14 of 120 PagelD 38

MHZ 1II amSiricATEQN OF MA1NEWATERS

D. The Legislature shall have, sole anchor* 10 make any dunes i the, elassifitation or tile waters of the Slate. (15 c. 690, 515 (NEP)

Pt. A, §40 (AFF}i a, Pt B, 554 IAMI)) .1

Removal of destga tod uses; creation of stiberitegolles of designated u•es. Removal of designated uses and creation of subcategories of designated uses are governed by the provisions of this subsection. and .10 Code of Perim t Roguiattons, Part 134, as amended, A. The board must conduct a use attainability analysia; (1) Prior to proposing to the Legislature a designated use of a specific water body [hat does Ito/ include the uses specified in the Federal Water Pollution Control Act, Fublie Law 92-500, Section 10 1()(2), as amended; or (2) Prior to proposing to Ilic Legislature the removal. of A designated lege or the adoption of a o. 344 51 subcategory of such a designated use. that requireg less stringent criteria. [1993,. t (NEM)

B. The board may not recommend to the Legisln lure the removal of a designsted van or tho os istrin en I of a subcategory of the ins; if: (1) It is an eni a/ ing use as defined in seetlon464, subs eet2ott 4, Paragraph 1-1, subparagraph (1), ank.ss another designated lisp 6 adopted requiring more stringent criteria, (2) The uso can he.a Rained by Jrnplementing effluent limits required under the Federal Water Pollution Comrol Aci, Puhifo Law 92-500, Sections 301(0 and 9.06, s arriendd and bY imp fomenting cost-of:fee/11N and reasonable bmt management practices for nonpoi nit goorce coo fro% (3) The water body iii question is currently Ltaining the designated ma; or (4) Adoption of /he recommendation allows the introduction of a new discharge er the expansion of an existing discharge. into the water body In question that fa nor atlaining the designated usu. (1993, e. 344, 51 {NEN) .1

C. The board may adopt any recommendation under this subsection only after hokifng a public hooring in the affected Area or adjacent to the affected area. Cond no/ of the Willie hearing and IN board'a subsequent decision Rre govighed by Titk 5, chapter 375, subchapler IV. 11993 e. 344, 51 (NEK) D. A finding by the board the" atininment of a designated use is not feasible must he supported by demons trallon that the conditions of 40 Code of'Federal Regttlacions 131, 10(g) aro Aka 119 E13 c 344., S1 1W).) B. If the board adopta a proposal to enact a designated use, under paragraph A, subparagraph (1) er [ct remove a designated use or sclop I a sabeategory ofa designated ills6 under paragraph A, subparagrapli (2), it .s]ia II forNard !hat proposal to thejoiut standing committee of the Legislature havingjmisdietion over natural resources matters al the next regular session of the Legislature. The board may not forward to any other Y,CCommtndri Lion to the Legislature under dupe subsection. The Legislatore has sole authority make changes in the des twisted uses of the waters of ihe 8/ate, including the creation of a subcategory of desigitated use. [1_9g3. a 344, 51 Illk/1101..1 in F. Por the purposes or olis subsection., "designated tie means ihe cwe specified water,queltry srendarda for each water body or segment u mint sections 465 to .165-C and sections 40 to 470 whether or not. that u se is being attained. A designated use includes its associated habitat characteristic under

sections 465 to 465-C. [3.993 p o 344. 5.2 {tiCWI

I 1993. c. 244, gl (NEW}

2 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 15 of 120 PagelD 39

MR8 Tata §464, CLA881FIGATION OF MAINIE WATERS

2-B, Tempo': ary removal of deslignoted uses; use attainability annlysis find creation of subcategory of uses for combined sewer overflom.. When designated uses are not being Met fis e result of combined sewer overflow discharges, die board may, coliSislani with this subseelion and 40 Code of Federal Regulations, Pad 131, temporarily remove designated uses that Ord not existing uses and ere ate a temporary combined sewer overflow subcategory referred to as ei CSO subcategory. Notwithstanding this subsection, ii remains the god of ihe Siste to fully ma hats io and restore water quality and eliminate or control combined sewer overflows as sem as prao0coklo. SC waren A. The board may creak i•mponnyCSO althea tegories in classes B, C and SO and •nly when, due {JD the ege, condition and design ofail existing sewer system, technical or financial limitations prevent the /Lindy attainment ofal{ designated uses. Iii ri CSO slahetitcgmy, nses MO suspended only in the smallest area possible, for the shoneM duration practicable and include only those designated uses mid areas determined by the board to have the least potential fur public benefit. E L995, a. 2861 51 WW1 .1 Notwil hsianding tabseci loin 2 and 2-A, CSC1 subcategories may be created by the board upon appli[ution by a nmniolpativ or quasi-irmnieipality having licensed combined sewer overflow d 19charge,s, The f.ollowing standards ere met. (1) The appricant submits to the department for approval, with or without conditions, a study mid as plan, including an implementation schedule, for combined sewer overflow abatement referred to ihe CSC' plan. In order for the board to creak, a CSO subcategory, ihe CSO plan must: wale& (a) Piece high priority on abatement ofcombined sewer overflows that affect hocIng dae greatest poteniial for pubilc use or benefit and pie n to relocate any remaining discharges to areas where impseis or losses ofuses would occur; and [18 to (b) Provide, for dm impiemenia t ion Dr soon as practical of (echo ology-based corgrolinelho achieve hest praehicable ireatmont or ensure that cos t-effeolive best management procriees ere being impfernented. (2) The board finds that attainment of a designsiled 'use is not feasible and snell deteminution must be supported by dernonstmtion !hat the cond ii ions ot40 Code of Federal Regulations, Part 131.10(g) are IRK (3) 'the board finds that the uses to be affected are not existing uses as defined in subseclion paragraph F. subparagraph (0. (4) The board finds that discharges from combined sewer overflows are not affecting uses that. in the 13 DardPsjudgment, constitute high va Dm or impori mit resources. hi cleteimining if a resource 17 high '9'M:ft cur iniporEant rhoboard shall consider its economic, reoreallonal and eeologicall significance, the likelihood III at removal of 5 combhied sewer overflow wilt lead to utilization of that resource %mid the effeets of other discharges or coadii ions on that resource, (1995, c. 204 g1 (NEWI. smdi C. Prior to creating any CSO subcalegory, die board shall adopt rules regarding required es, bast practicable treatment, obflitenleilt opi ions end rel eh d issues for combined sewer overflows. CEO subcategories may be created only after complei ion of Me following, shall (1) Either during or fol towing development of combined sewer abatement plans, licensees conduct public hearIngs IlL due area that would be alSectied by a CSO subcategory, Notices and records ofhearings must be kept end included us part of an application made to the board, (2) Combined SONVCT overflow abatement picns must be submitted to the department for technical review and approval. (3) Licensees proposing CSO subcategories shall submit formal opplicai ions to the board. Informallon jri. the appl leo ion mast Include: deseription of the sreas and uses to be affected, the lime and dorm [on of effects, Coinnienls received at public hearings a dc-scrip Lion of Conrintrilig e[forls to abate irnpacLa and proposals for peddle review anki tipriale of abatement Plans.

13 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 16 of 120 PagelD 40

MRS Me M ht4. CLASSIFIOATPON O.F MAIME WATERS

(4) The. beard sball provide public uotke of applications for CS subeategerks and soTicilpibhc comments. Tho board shall also oonsu It wi I h agencies, public officials and ether Purse= Metairie(' as having interest in lite area to be affected. Based on the results of public hearings held by the applicant, the corninents reit.eved fall the nature of the application, the board may hold a public hearing;

ip) The board may approve, approve with conditions or deny applications for CS 0 subcategories. In cases 'Alen a wal or body is affected 1-.17 confbinsd sewer overflows from more than one liceswee,. the. hoard shall, to the maximum =lent possible) consider regional impacts and -seek to estab lish common goals anelUse-S for those %voters, of CSO shall (6) In a manner prescribed by the board, applicanis receiving approval subcategories provide notice to the public in the area affected4 describing the 1 imiiations On MO of the water body. [1995 c. 254, (NEW. D. Upon creation of a CSC subeategaly and removal of a designated use, the board may temporarily suspend Or modify water quality eriferi a associated with that use as appropriate, but only to the extent and duration Ihnt those criteria are affected hy the licensee forwhom the assignment is made. Action by the board under this subsection does not relieve oiher discharge sources from any requirementlIO provide necessary ircairnent or best management practices or to comply with water goality criteria. (1995, C. 2JI j. HEW .1 E. Either independently or iii colkitITI011ion with I he requiromouts of subsection 3 and upon renewal of individual waste diseharge licenses, the department shall periodically review all CSO subcategories. Reviews ofCSO subcategories must take into consideration water quality c.riteri a and uses, combined sewtr overflow aba ternarn technology, monitoring dal a, IlnancbtI information and regutatoiy requirements affecting CSO subcategories. [1595 c 284, 51. (ISW). Upo]L petition by the department or ally 'lemon or on its oWn botIrci may, at its discrelion, and following notice and opportunity fbr hearing, revise or revoke a CSO subcategory "Mien ii finds einy change in fhe coadilions under which the existing designalion w83 simde. The failure to comply with the measures specified in an approved combined sewer overflow abatement phin. Ia .eause for revocal ion of a C-SO so beatogory.

1995, c. 284, V, (WE•.

3. Reports to the Legisla Imre, The departmenl shall periodically report to the Legislature as governed hy the following provisions. A. The eomtnissioner shell submit to the first regular se5Sion of each Legislature a repair on the quality of the Slate?swaterS whicl describes existing water quality; identifies waters that are not attaining their otassitiaa (lon and Nifit.ds what measures are necessary for the altaininent of the standards oftheir classfiloalion. 11989, c. 090, Pt. In, 540 (APO 19439, 0. 8901 Pt. P., §55 (MD) .1 B. The board shall, from time to thne, but at kast once every 3 years, hold public hearings for i be purpose of reviewing the water quality classificati3on systent and reiated standards and, as appropriate, recommending .shanges in the slanclards to the Legislature. 12603, 0 551 6 .;smi)) C. Tito commissioner shall report annually to each regular session of the Leg[slahi re on Ike wails of licensed discharges. 11989, 0. 890, Pt, §40 (AFF)j 1909f c. e90, Ph. B., g 55 (AMID/.

D. 11909, c. 890,. Pt. A, N40 (AFP); 1989e 0. M), Pt B, §55 (RN, 1

2o03• c, 551, 16 (MD),

be Li. General p roviskus. The olsnifi ea Lion system for surface waters established by ibis article. shall subject to the following provisions.

4 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 17 of 120 PagelD 41

101:13 Tato tT4. CLASS IFICA/ON OF MAINE WATERS

of the A. twi Ihstand n8 section 414-A, ihe department may not issue a water discharge license for any following discharges: (1) Direct discharge of poilutants to waters having a. drainage area oness than 10 sLra•re iriji except I hat: (a) Discharges into these waters that were licensed prior to Jarmo ry 1, 1986 ore allowed to continue only until practical a lterna6ves exist; (h) storm water discharges in compliance with state and /Deal recruhernents are exempt frOlut this subparagraph; (o) Aquatleptatkide or chemical discharges approved by (he department and conducted by the depan ment„ the Department ofIn [and Fisheries and Vildlife Of eft sgent of either figreney for the purpose of re4toring biological communities affected by an invasive species are exempt' from this subparagrap]i (d) Chemical discharges for the purpose of restoring water quality in °PA waters approved by the department are exempt from this suhpeungraph; And (0 Discharges ofaivatic pealicides approved by thedepartmont for the control ofrnoitufto- borne diseases in the interest of public health and safety using materials and methods that' provide for protection ofmmiarget species aro mtempt from this subparagraph. When the d epart Meta Manes a license for the discharge of aquatic pesticides authorized under this division, the. department shall notify the mithicipslity in which tile application is licensed to o-ccur mid post the notice on the department's publicly accessine wchsitc. (2) New direct discharge of domestic pollutants to tributiodes of Class-GPA wilterS",, ('3) Any discharge into a tributary of GPA INAtets that by itself or in conthination with other activities causes water quaky degradation that would impair the characteristics and designated uses of downstream CITA waters or causes ati increase in the trophic state of those CPA waters except for aquatio pesticide. or chemical disoliarges approved by the depaament and conducted bY the departmen.t, the Departmern of In [and Fisheries and Wildlife or an agenr.ofeither agency for the or a purpose of restoring biological commtmi l les affected by an invasive species in. the OPA waters tributary to the OPA waters; (4) Discharge of pollutants Io waters of the State that. imparts color, teNte, turbiditY, toxicitY, misu the uses and radioactivity or ether properties that muse those walets to be habit for designated characteristics. ascribed to their class; (5) Discharge ofpolhuauts to any water of the State that violates sections d 65, 465-A and 465-13. 8•5 except as provided in section 45 t; effuses the "pll" offtesh wa tem to fal otItaide of thel6.0 to to 3,5 yangei or causes the "pf-J" of estuarine and marine waters to fall outs [de of the 7,0 glugq (6) New diaeharges ofdomestic pollute ors to the surface miters of the State that are not conveyed and i rented in nurnicipal or quasi-numicips l sewage facilities. For the purposes of this slihpntagrelph, "new discharge" menus any overboard discharge lhat was not lioeuseri se of June 1, 1987, except discharges from yessel3 and iliose discharges that were in continuous existence for !ha 12 months preceding Junto I, 1987, Eks demonstrated by the applicant to Lli deportment witilelear cud convincing evidence, The vollaine of the discharge _Ewa nn overboard discharge &Dili ty that was Ficemed as of lune 1, 198? is ticlennined by the actual o• estimated volume from the facilities connected to the overboard discharge facility during the 12 months preceding June 1, 1987 or the volumeal towed hy the previous license, whichever is Ile,ss, unless it is found by the department that au error was made during prior licensing, The months during which a discharge may occur from an overboard discharge facility that was licensed es of lime I, 1987 must be determined by the actual use of the facility at the lime of the most. recent license application prior to lune 1, 1937 or the semi/ use of the facility daring the 12 months prior to June I, 1987, whichever la greater, if the overboard dlacharge facility waa the primary residence of an myner at the time of the most recent license lippliedi [On prlov to rune 1, 1%? or during the 12 months prlor to June 1, 1987. Ihen

15 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 18 of 120 PagelD 42

MRS -rift 3a g.111.1. cl.ASSIFIOATiON OF MAINE WATERS'

ihe iliIy is considered a year-round tesidence. "Year-round residence' rnefius a facility that is continuously 'used for more than 3 inortilis of the year. For purposes of licensing, the depi1niaul shall treat on increase in. the Ifoensed volume or quantity of an existing discharge or an expansion irk Ole months dining which the discharge. takes place as a neW discharge of domestic pollutants., (7) After the Administrator ofihe United Stales Environmenial Proteci ion Agency ceases laning permits for discharges ofpollutants to waters of this State pursuant to the adratriistrator's authority tinder the Federal Writer Pollution Control Act, Section 402(c)(.11). Bny proposed licensto which the adminialrator has formally objected under 40 Code ofFedeml Regulations, Section 123A4. amended, or any [license the t would not provide for compliance with. applicable requkeinents of that Act or regulations adopted thereunder; (8) Disehargeg for which the imposition of-conditions can not enaure compliance win'. applicable water quality requirements of thfs State Or another slate; (9) Di ['charges that would, in tire judgment of the Secretory of the United States Army, N.111;Wrintial[y impair anchorage or navigation; (10) Discharges Chat would tie inconsistent with A plan or plan amendment approved under the Federal Water Pollution Con [rol Act, Section 203(b); and (11) DA charges that would cause unreasonable degradation of marine waters or when insufficient iiNfaiplation OxiE Is to make c rertsonabte judginent whether ihe discharge would cause unreasonable degradation of marine waters. Notwithstanding subparagraph (6), the department may issuo a wastewater dischargelicense allowing for nts from an inerenst in the volume or quantity of discharges of domestic polio la any university, college or school administralive or school administrative unit sewage facility, as long as the university, college g in unit has a wastewater discharge license valid on the effective date of thi paragraph and the increate to or other clischarge,g does hot violate the co rich Fiona of subparagraphs (1) to (5) and (7) (I I) applicable laws. l2007 0. 291, 51 CA.t4D)

a All sarfac.e wateTs of the State shall be free Of 9etlieci sul:ks uces which alter the physfc1 or dlemical nature of bolitom material ond of floating substances, except as naturally occur, which impair the c §15 I chamoteristics and designated uses ascribed to their elm. (1985, r 698, {NM C. Where naturat conditions, including, but not limited to, marshes, bogs and abnormal eoncentrationS Of to fall below the minimum standards wildlife pause Iho dissolved oxygen or other-water quality criteria specified in sections 465, 465-A and 465-E% those waters shall not he considered to be failing to attain their classified len because or those natural conditions. 119 a 5, c 698 §1.5 NEW),

D. Exoepi as otherwise provided in this paragraph, for the purpose occompu log whether a .clis'cltarge river or stream must will violate the classification of any river or stream, the assimilative capacity of the be compuhed using the minimum 7-day low flow which can he expected to occur with a frequency' of for chose toxic substances omen in 10 years. The department may uso 19. different flow rate only regulated ls consistent under section 420. To use a di ffereni• flow Rite., the deportment must find that the flow rate with the risk being addressed. [1991. 159, (A-tflp/ .1 E. The waters conlained in excavations approved by the dcparlrnent fot—wilstewater lrealment Illosers a- 890 Pt. .11 19e9 are unclassified writers. 1198 r Pir S4CI OPP) g .57 {AMP} .1 F. The am [degradation policy of the State is governed by time following provisions. (1) Rdstiug in-stream water uses and the level ofwater quality necessary to protect those existing are those uses which have uses MO St b niaintained mid protected. Existing In-stream-water uses actually ocemted on or after November 28, 197S, in or on a water body whether or not the uses oso, included In the standard for classifier' ion of the particular water body.

61 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 19 of 120 PagelD 43

MRS Ti1I B c404. CLASSIRCATEON OF MAINE WATERS

Determinations of what constitutes an existing iii-slreani lriI at on a particular water body must be made on a case-by-case basis by the department. In making its determination of uses to be protected and maintained, the department shall COnSider designated uses for th at valor body ond: (a) Aquatic, estuarine and in name life pres•ent in the water body; (b) Wildlife that utilize the water hodr. (c) Habitat, inKluding signifiearit we tiAnds, \vain a water body supporting existing p ()pu Wilms of wildlife or aspmtic, esniarine or martiao life, or plant kfe that is maintained by the water body; (d) The use of the waer body for recrea[11 on in or on the water, fishing, INAter 8wply, or commercial aclivity that depends directly On am proservaiion of auexisling level ofwater fluidity. Use or the Vialcr body ro receive or munspori waste water discharges is not considered an oxis ring use for pOrposes of Ibis snddc5adaiion pokey; atbd (e) Any other evidence that, for divisions (a)„ (b) and (c)„, demonstrates theitecological significanw because of their role or importance in aus function hlg of the ecosystem or !heir rarity and, for division (d), demonstrates he historical or social doll-mance. (1-A) Tire department may only issue a -waste discharge' license pursuant on section 414-A, or flpirrove a water quality certification pursuant to the United States ICJ= Water Aol, Section 401, Public Law 92-5100, us u mended, when thD department. fi nds that: (a) The existing in-stresin uso involve-s use of the water body by a population_ ofplant life, wildlife, or aquetie, estuarine or marl.= bib, or as Atilla tie, estuarine, marine, wildlife., or plunt habitat, and the applicant has demonstrated that the procOsed activity would nothave a meanc significant impact on iho exlsling use. Porpurpose ofthis division, algeificeut impact (i) Impairing the viabIlty dike existing population, including .significani invairmeat to growth ri nel reproduction or au alteration of the habitat which impairs vlability of the existing population; or (b) Tire existing in-strearnuse involves use of the wa ler body for recreation in or on. the 'water4 ristking, water sapp[y or coinateMal enterprises that depe]ld directly on the preservation of an existing levet nfwator qualky arid the upplicant has demonstrated that the propoSed activity would not result in significant degradal ion of the existing uso. Th.e department shrill determine what constitutes a population of a portico hir species based upon the degree of geographic rind repro andve igo1a1 kin from other individuals of the. same species. If the de.partment fails to find that the conditions of this subparagraph are mei, water quality ceriWica!ion. pursuant to the United Status Clean. Water Act, Section 401, Public Law 92-500, as ntonded, is denied. (2) Where high quality waters of the State constitute an outstanding national resource, that water quality must he maintained and profrctod. For purposes of ibis paragraph, the following waters are ceasidere.d outstanding national resourcesaioSt water bodies in. national and state. parks and wi Edlife refuges; public reserved lands; and thos water bodies clasifiecl as elms AA Aud SA writers ptn-sUant to section 465, subsection 1; section 165-B, subsection 1; and listed under sections 467, 465 and 469. (3) The department may only i Balite a diuchrirge license pursuont to section 414-A or approve water qualiry certification pursuant to the Pederal Water Pollution Control Act, Section 401, Poblie Law 92-930. as amended, if the standards of classification of ihe water body and the requirements or this paragraph ere mei.. The department. may issue a discharge license or approve water quality certification for a project [fee ring a water body in which the standards of classineatica Are not met If the project does rieit cause or eon qibitte to the failure of the water body to meet the standards or class] fication.

17 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 20 of 120 PagelD 44

MRS -nue 3a Narl. CLASS IFECATION OF MAINE WATERS

(4) Wheii the actual quality orally classified water exceeds the minimum standards of the next al highest classification, that higher water quality. must he maintained anti protected. The board sh recommend to the Legislature that that water he reclassified in the nekt higher GW5ifiCa4011. 414-A or water (5) The department may only issue a discharge license pursuant to section approve quality certification pursuant to the -United States etean Water Act, Section 401, Public Law of water niter 92..soo, as amended, which would result in towering the existing qualily any body making a finding, inllowing opportunity for nubile participation, that the action is necessary to achieve important eco]iernic or social benefits to rhe State and when filo aclion is in conforMance with subparagraph (31 That finding must be made foRowhrg procedure.s es lahlisbed by rule of the beard.. 66, Pt. 131 U CAMD)

C. 1[1989, 0, 442, 55 (RP) R. A hydropower projett, as defined by section 632, eonstru eked after the. effective date of this paragraph life and tfli e. waters may aange some change to the habitat and aquatio of Ihe project's impoundment irmnediately downstream of ond measurably affected by the. project, so long as the habitat and aquatic met. lifo criteria of (hos e waters' classification under seelions 4165, 46S-A, 467, end 463 arc Vida s lona 465 paragraph does not constitute any change in the criteria for habitat and aquatic life under eci and 465-A. [1991. 013, Pt. EJ J. {Noin I .1 I. (15s50. G. 312.. gl 39, §464 sub—S41 MO for loxie the J. Por the purpose Of calculating waste discharge. license lirilils substances, department may has set aside for iliture if Ihe use nge Arty rimitocated assimilative capacity that the depsiiment growth water of that unallocated BSs initiative capacity would avoid an 0,xeedance of applicable ambient quality to aMbieni criteria or e determination by the department of a reasonable potential acced appricable water quality erileria. [2011, c. 194 g3 (1,1247) .11 K. Unless otherwise required by an applicable effluent limitation guide/imp adopted by the department, be as mass- bised any limitations for metals in a waste discharge license Tnay expressed only [2011, c. 194, §a (NEW) .1

2011., c, 194, §3 (MO) .1

5. RnIcning. In accordance wi rh 1he. Moine Administrative Procadtwei Act, the board shall this a rticle.111 promulgate roles neeessnryro implement tiie water quality classification system established by promulgating rules, the board shalt solicit and consider, iii addition to any other materials, information on the economic and environmental impact of I hose rules. Rules shall be promulgated by January 1, 1937, arid as necessary thereafter, rind shall include, bat are not for water criteria, limited to, sampl lag and analytical meihods, protocols and procedures satisfying the quality including evaluation of the impaei of any discharge on the retit:beint biological community, links adopted pursuant to this subsection shall become effective upon adoption. Rules adopted pursuant to this subsection shall be submitted to the joint standing committee of the Legislature having jurisdiction the This over natxpral rcSOlarOeS Air review during the next regular seosion of Legialahlre following adoption. intent rules committee may submit Ie.gislsiion it deems necessary to Clarify legislative regarding adopted in effect. pursuant to this subsection. Ifthe conunittee takes no action, the rules shall c-onrinue

1985 r C. 69a, ns (NEW}

criteria 6. of biological Mite• quality criteria. The implementation of water quality of this pe.riainlng to the protection af the resident biological corn amity shall be governed by the provisiona subsection. license that was issued Do [le A. At any lime during the term of a va /id wastewater dlacharge prior effective date of this article, the board May modify that license in accordance with section 341-D, the subseci ion 3 if the discharger is net in compliance with the wetertludity orileria Pet-inkling to Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07114 Page 21 of 120 PagelD 45

MR8 llaa A64. CLAS81FiCATION OF MINE WATER8

protection of the residenl biological community. When a !discharge license is modified under this subsecrkal, the board shrill •slablish R reasonable Echedu le. le bring Ihedischarge into compliance with the water quality criteria pertainins to ihe prolection of the resident biological community. (1991, c 66, P. A, 913 (RPR) 1991, a., 66, P. A, 543 (AM B. When a discharoe license is issued after the effective date of this artiek and before the effective date of ihe niles a clop God pursuant te subs ecl/on 5, the department shall establish a reasoimble sehecluie to bring the discharge into compliance with lhe water quality criteria pertaining to the protection of the resIdeat biofogical communfty, [1989, 0. 690, Pt. 510 (A FP); 1989, 0. 896 PC. E 559 (ANID).1 C, A discharger seeking a new discharge license Ibllowing the effective date of the rules adopted under subsection 5 shall comply with the Water quality criteria oftills artith. (1985, 0. 696, 15 (NEW)

j 1991, a. 66, Pt. A, 513 (AMC)) c. 66, P. A, 5k113 (APP) .1

7. Interdepartmental coordination. The commissioner, the Commissioner of Marl net Reselireta kuld rhe Coappissioner of Health and Human Services shall jointly: A. Make available accurate and consistent inibrrnation on i he requirements of this section, seci ion 41I-A and section 4.1.4 -A, subse alien 1.-B; and [1989, c. 442, .56 (NE.1.3). B. Certify WaStewater treatment and diapasal technologies which can be used to replaceoverboa od discharges. (19109, c, 1390, n. A, 940 (APP); 1989, 0, 890. Pt. 60 (AND),

1989, 0, 090, Pt, A, 540 (ARE); 1989, C. 890, Pt. B, 560 S.10)i 2003, a. 689, Pt, m 57 (Rgv).

8. Development of group systems. Subject to the provtsions of seCtion 4I4-A, subsection 1-B, the commissloner shall coordinate the development and Implementation of wastewater Wean/lent and &Rpm/ sysleins sming 111Dic than one residence or commeicial establishmear when individual replacement systems are not feasible.

1989. c. 890, Pt. A, 940 lAPP) t 1969, e e90, Pt B, 960 (MD)

9. Existing hydropower linpuiipdirieiits managed as great ponth;, hnhlint and aquatic Ilk criteria,

2005, a. 159, 51 (RP)

9-A. Existing hydropower impoundments prapaged as grant ponds; habitat fi rid a tiltstie lire criteria, The following provisions govem habitat and aquatic life criteria for existing hydropower impoundments managed as real ponds. A. fl-.1.r I he purposes of water quality certification under the Fedcrnl Water Pollution Control Act, Public Law 92-500, Seciton. 401, as amended, and licensing of ra oditIca I ion s under section 636, the hydropower project !located on the water body referenced in section 4157, subsection 7, paragraph C, subparagraph (I), division (b-.1.), is deemed to have met the habitat characteristics and aqui lo life oriieria in lite existing impoundment it. (*The project. is in ex islenee on June 30, 1992; (2) The project creates an impoundment that remains classified under seclion 46S-A. after June 30, 1992; (3) The project creates an impoundment that Is subject to water level flu etlial ions that have an effect on the habitai and rig alio life in the littoral zono se that the habitai and &Ingle life differ .signiticantly from that found in en tininipounded great pond; and

19 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 22 of 120 PagelD 46

MRS TIIIe .50 t9404. CLA.SSIFICATiON OF MAINE WATRs

(4) The existing impounded waters are Able to support ail species of tith indigenous to those waters and the structure and Band ion of the resIderit biological. community in the impounded waters is maintained. (2i)1)5 c. 159, 52 (NEW) .3

B. For ihe Imposes ofwater quality certification under the Federal Water Pollution Control Act, Public Law 92-500, Section 401, as amended, ond licensing ofraodifieations Ander section 636Ragged Lake, located hi the PenobscoMver, West Branch drainage) is deemed to have raet. the habitat eharacterie tics and aquatic life criteria. in the existing impoundment if that habitat and atviatie life Toady the aqualie life criteria contained in section 463, subsection 4, paragraph C, except that habitat arid aqua tie life in the portions of the water body offeeted by annual drawdowns amp to 20 feet may mace Hhe effects of such drawdowns, based on a nge attainability analysis conducted by the board pl]tSU1l1 to subseclion 2- A. (2005, 0, 159, g2 (NEW),

C. For [he purposes of water quality certification under the F'edera I Water Pollution Conhol Act, Public Law 92-500, Sect ion 401, as amended, and Hcensing of modifications under section 636, Seboomook Lfikes located M. the Penobscot River, West Braneh drainage, is deemed to have met the habitat cbaracierlsiics and aquatic life criteria Iii the existing impouridnient if that habitat mad aquotio lifo satisfy the aquatic life criteda contained in section 465, subsection 4, paragraph C, except that habitat and aquatic life in am portkins of the water body affected by annual. drowdowns °flap to 17 feet may rofiect the effects of such drawdowns, based on a use attainability analysis conducted by tie board pursuant to subsection 2-A, (2005, C. 159. 52 (NEM .3 D. Other than those degeribed iu paragraphs A, B and C, all hydropower projects with i inpoundineilIs in existence on ham 30, 1992 that remain classified under section 465-A after J11111330, 1992 and that do nor aim in the habitat and oqimlic life criteria of that section nrast, in a minimum, satisfy the aquatio fife criteria cornalued in section 465, subsection 4, paragraph C, (2005 c. 159, 52 (1.11311) .1 a When the Reiluel we ter quality of the impowded watt= attakis any niorc stringent characteristic or criteria of those waters' classification under section 46-A, that woter quality must be maintained and protected. [2 0O5 0. 159, 32 {NMI) .1

2005, c. 159, 52 (NEM .3

10. txlsitii2 hydropower Inpoiindinente UMW ged under riverine classifications; habitat on a aqua tie ilia eriletirt. For the purposes of water qua]ity certification under the Federal. Water Pollution Control AV., Public Law 92-500, section,401, as amended, arid the licensing ofmodifieot ions under section 636, hydropower projects in existence on the effective date of this subsection, the impoundments of which are classified wider section 463, are subject to the provisions of this subseci ion arecogni ti on of sonte changes to aquatic life and habitat Oral have occurred due to the existing impoundments of these projects. A, Except as provided in paragraphs 8 a nd 13, the habitat characteristics and etltioiio life criteria of ClasseS A and are deemed to be met in the existing impoundments classified A or B of I hose projects

(1) The linpounded wci tors achieve. the aqua [le life clitelift ofsectiori 465, snbsecI ion 4, paragraph C, 11991, C. 613, Pt. n, gl /B. The habitat charm terisl ics and aquatic ii criteria of Classes A and 13 are not deemed to be met in the existing irnponndrnents of those projects reNcred to in paragraph A if: (1) Reasonable changes ean be implemenied that do not significantly affect existing energy generation capability; and (2) Those changes would result in improvement in lite habitat end aquatic life of the impounded waters.

lithe condi! ions described iftsubparagraphs (0 and (2) occur, those changes must be implemented and the resulting improvement in habitat and aquatic life moat be achieved and maintained, 11991, 0. 813, Pi;, 0, §1 (NEW) .1

10 I Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 23 of 120 PagelD 47

MRS Tiflo CLASSIFICATION OF MAINE WATERS

C. Mille conditions described in p graph 12t, glibparagrapI is (I) mid (2) occur at a project in existence on the effective date °Tibia glabscci on, dic impoundment of which is classified C, the changes described in psragraph B subparographs (1) and (2) must be implemented and the resulting improveinenl in habitat awl aquatic life must be achieved and maintaina. (1991, c. 813, Pt. 33, 51 (NI311) D. When the actual wa ter qu rity of waters affected by this gubseci ion attains any more stringent chareeterislio or criteria of those waters' classification under sections 465, 40 and 468, thai water quality must he maintained and protected. [1 9 9 1,. B i3 Pt, §1 (NMI)

1991, e. 05.3, PtL. E, 1

11. Downs trerim stvetches affected by existing hydropower ptolects. Hydropower projects iti existence on the effeciive dale of this subsection that are located oft water belies referenced in section 467, subsection 4, pnragraph A, subparagraphs (1) and (7); Euid.section 467, subsection 12, paragraph A, subparagraphs (7) and (9) are subject to the provisions of this subsection. For the purposes ofwailer certificaiion orhydropvor projects under the Federal Water Pollution Conlrel Act, Public Law 92-500, Section 401, as amended, cmd licensing of modificatious lo these hydropower projects under section 636, the habitat chamcieristica and aquatic life criteria of Ckss A ere deemed to be met irk dm waters immediately downstream of and nicasarably Meted by ihe projecie listed In this subsection If the criteria contained in section 465, snbseclion 4, paragraph C ore met.

9 93...•. 1r 5114 (COR)

1.2. Discharges from certuin ash hotelier les, AnIndio ens ed discharge from a fish halchery Is considered, and coat times to lie considered after it is licensed pursuant to section x111, the seine Rs a discharge licensed prier to January 1, 1986 for the purposes cfsabred ion 4, paragraph A, subparmoraph (I); section 465, subsection 2, paragraph. C end section 465-A, subseci ion 1, paragraph C if ihe foi lowing conditions are met:

was io A. The diecharge lii existence prior Sammy f, 1986; [19 99, C. r §1 (NEW). B. The fish hatchery it licensed io cultivate fish by the Depanment of bland Fisheries and Wildlife On tha effective date oflliis subsection; and (1, 999 c. 720„ fi 1 (NEW) .11

C Ark applical inn from dm totchely for a wasto disoliargo license is accepted as complete for processing by the Depart/nein of Environmental Protection within 90 days ofnolifiention that a waste discharge license is TV gnired pursuant to seclion 413. (1999, 720, g1 (NEW) .1 The Department efEnvlrenmental. Protection -shall notify a (A hatchery with an unlicensed discharge that a waste discharge license is required pursuant to section 413 ‘Tdill-lin 90 days of the effective date of this snbsection or within 90 days of finding the unlicensed discharge.

1999, c '720, §1 (NEW)

13. Trfensuremorit of dhsoived oxygen in riverIne Imp otmtl men ts. Compliance wilb dissolved oxygen criteria in existing rive-rine Impound men is must be measnred as follows. A. Conipl Lance with dissolved oxygen criteria may not be measured within 0.5 meters of tlie bottoni of existing riveriao impoundments. [2003, o, 257, g1 {NEW B. Where mixing is inhibited dne to ihennol stratification in an existing riverine impoundment, compliance with numeric dissolved oxygen criteria may not be mem cured below the higher et I) The pond of flicnns I stratification whern such sunillIcraion occurs; or (2) Tbe point proposed by the department as sri alternailve depth for a specific amine imp omidment based on all factors included in section 466, saibsection 11-A and for which a use attainability analysis is conducted ifrequired by the United States Pnvironmenial Protection Agency. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 24 of 120 PagelD 48

MRS Tlire 305484, CLAS8IFICATION OI MAIHE WAIL5Ft8

For purposes of this paragraph, "thermal siratikal ion" meorks cluinge Dnernperalure of at leasi one degree Ce141.13 per meter of depth, causing water below !his point in .an impfmndment lo become isolakd and not MIX With water above thiz- point in Ifio impoundment, [2003, 0, .257, A1 WEE) C.-Where mixing is inhibited doe to natoral topgraphical feattip2s in ark misting rivorint impoundment, compliance with. nornerio di$ goived oxygen cri led(' may not be measored within that pelt on lathe hupcmidment that is top ogrivlIfeally Iso/atecl. Sueh naimal. [op ographie Pato res may i nchide,, buil not be limitd to. naivrai deep holtis or river bottom sills, (2003, a, 27, 1. (N) Noiwithsind lug he prov Wong of this subsection, dissolved oxygen concentrations in existing rivorino imponmi ntents. mat. be sufficient to support existing and desigimWd uses of th, e.$e Waters, Far purposes of this sutveci ion, "coasting rived ne impoundulenls" nwa us oft iinpowldmeitta drivers and s [remits in exiscence ea efhowny I., 2001 and not otherwise classified a GPA.

2003, c. 257, 01 (mi.?)

$2.CTION HISTORY 1985, c. 698, 015 wim), a, 180, Sg 45 (MO 19071 510 (AMD), 1907, c. 567, (AND). 1989, c ”9, 52 (AND), 1999, C. 442, 554-6 (VOL 1999, c. 764, 51 (AND), 1989, 0. 656, 556, 7 (A14D) 1909, c, 870, 5E40 (AND). 1989, c, 800, 5.5A40, B.54-60 (AMD) 19911 c, 65, 5011112, 13, K (Ardn). 3.991, G. 6.6, 014(Ayr), 1991, e. 159,. 1991, 813, 5.5A1, 131, Cl, Dl (AND). RR 1993, c. 1 00113414 (cDR). 1993, C. 40, 51 (AND). 1993, c. 344, nsip (AMD). 1995, c. 284, 51 1995, a. 312d 51 (AND). 1997, c, 794, 5A30 (AND). 1999, c, 720, 51 (MD) 2003, a. 245, gr.) (Amp) 2003,, c, 245, 514 (MD), 2003c 257, 51 (AND), 2003, c, 318, g2 (AMD). 2003, C. 551., 56 (MD). 2003 C. 650, 53 (MD) 2003, c. 689, 5.13.7 (REV). 2005, C. 159, 551, 2 (AMD) 2005, c. 192, 51 (AND). 2007,. 291, J. (AM). 2011,. 194. 53 (AND). NR.SA T .30, 5464/4/I (AND).

The Seireof.M8Lne claim n copyright In ELI eOttitiOisNktiGmTl'you inlend to republifib. ibis meals I, vir6re1uttre that p.m include th fLollosuingdiselairrtet yourpiblloailon.!

reopyWits offitdothepAAhrs ro notItaly icorore pesove Iby theMate N44thiet Tile text Me/Wed perblicatio irepary elta.oges offokrougil the rerrsi cSpeeW aossitg, opirm Wth AfaorLegli/prErier oarent through December 31, 2014 emet i salect to change-without noike ltfr vorsion fr.eis nei 126% officiary alliedby the &ovary cOmire. Reftr ro the Maine Revised Statutes .0/m.1611f-fled end.51.ppionemsfor certifiedtem. ThcOffial or die RevisorofSranires aise requests thityou said us ciao 'ropy ofany suifirory rtlicalion you may puoduco. Our goal is notto resuici publishing activity, hug to keep buck ofwlio publgng IAA to irturni irartyrteed less. duplicalion and to prestryz tho Slato's copyrighl rights.

PLEASE NOTE: The Revisor's. Office mnotperfonmmosioli ror or provide legal advice or lotelpretalion ofMaine kw to ale ryoui mod iv twisionc.o, plmsecorilacl areIifl1 !Wavy.

12 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 25 of 120 PagelD 49

EXHIBIT

ENV! AON 171

April 25, 2011

The Honorable Thomas B. Saviello The Honorable James M. Hamper Co-Chairs Joint Standing Committee on Environment and Natural Rdsouroes State of Maine Legislature Cross State Office Building, Room 216 Augusta ME 04333

Re: LD 518 Numeric Ambient Water QuailLy Criteria inorganic Arsenic

Dear Senator Saviello and Representative Hamper:

My name Is Rosalind Schoof. I am a board-certified toxicologist and a Principal at ENVIRON fnternationalCorporation, This letter is submitted in support of the revisions to the Maine Ambient Water QualIty Criteria (AINQC) for Inorganic arsenlo proposed in LD 616. Since the early 1 gggs my research has focused on characterizing sources of exposure to arsenic, including environmental sources and arsenic naturally present In food and drinking water. Since the early 2000s, have been studying the scientific bases for the U,S. Environmental Protection Agency (USEPA) arsenic AWQC, specifically the forms of amenic round in seafood and the influence that arsenic concentrations In water might have on arsenic concentrations in fish and shellfish. During the past two years I have made two presentations (during June 200g and March 2011) on these Issues at meetings attended by members of the Maine Department of Environmental Protection (Marne DEP) and the USEPA,

Inorganic arsenic is naturally present throughout our environment, In areas of the world where very high concentrations are found in drinking water arsenic has been shown to cause Increases in some cancers; however, no Increased risk has been observed for the normal range of arsenic In food and water in the United States. Nevertheloes, the USEPA regulates arsenic as though risks were present at low levels. Maine's current AWQC of0, 012 pg/L for water plus fish and MB pg/i. for fish only are even lower than the USEPAAWQC. The USEPA methodology for deriving AWQC allows AWQC to be based on incremental rl$ks ranging from 10'61 0.e., one-in-one-million) to 10 (i.e., one-in-ten-thousand). The proposed legisialion Increases the Incremental risk level from 1045to 104, an Incremental risk level that will be acceptable to USEPA. No other aspects of lhe AWQC will be changed.

For several reasons, the proposed change In the risk fever for the arsenic AWQC will not result in any Increase in health risks to Maine residents. The primary reason is that 1he naiural arsenic concentrations in surface waters in Maine are similar to the concentrations of the proposed AWQC. There are no Incremental human health benefits of regulating arse nie discharges to levels below the proposed criteria because naturally occurring background tavels are In this range. As long as natural revels are not being increased people will not have increased exposure to arsenic, and therefore, will not have increased risk.

Several other factors support the proposed increase in the arsenic AWQC, It fa the intention of the USEPA that the AWQC apply only to inorganic arsenic, Most arsenic in surface water Is in

605 Flirst Avonus SuMe 11:101, Seattle, WA 5ili:14 vmpa.envirancorodcarn Ted: +1 206.36.1550 Fax; +1 206, 330%1mi Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 26 of 120 PagelD 50

NVI RON

the Inorganic form, but in fish most arsenic is in the form of organic compounds Ihat are much less toxic than Inorganic arsenic. On average In freshwater fish, only 10% of the arsenic Is Inorganic, while In marine and estuarine lish, only 2% is inorganic. Furthermore, small changes In arsenic concantrations In surface water do not appear to cause changes In the arsenic concentrations in fish. These factors suggest that arsenic AWQC should be based only on end water consumption and not on fish consumption. Consistent with this conciusion, 23 slates their territories have received approval tO use the arsenic drinking water standard of 10 ma as AMC. More than 5 state5 and territories have even higher AWQC. A number of slates apply the arsenic AWQC for protection of human health only to fresh water, and not to marine waters (which are not potable).

In concrusion, the proposed arsenic criteria In LD 515 are protective of human health and are are also consistent watt more stringent than what most other states are doing. The criteria 1J5EPA methodologies and guidelines for developing human health criteria, and will not lead to I this Increased exposure to arsenic for Maine residents. Based on these findings, urge committee to accept the recommendations made by the Department of Environmental Protection and revise the arsenic AWQC as proposed

Sincerely, I. .iatz,

Rosalind A. School, PhD, DABT, Fellow ATS Principal

co: Members of the Joint Standing Committee on Environment and Natural Resources

www.environowp.cilre 00.5 Fkst Ay@ruia, 8t.i1s 3004 So EOM, WA :50101 Tel: ±1 2c003a6,1650 1;e0C 2066:113151 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 27 of 120 PagelD 51

Human an d Ecological Risk i O4-e2n, 2006 Copyright@ Taylor Re Flancis Group, LLC ISSN. 1080-7039 print 1549-7680 online DOI: lo.l08Ovlon70ermoina2511

Arsenic Bloaccumulation In Freshwater Fishes

R. A, Seiko of, j. W Yageri! nadir. W. Goodrich-Mahoney' 'Integral Consulting rm.., Mercer Island, Washin.gtori, DS* *Electric Power Research Institute, Palo Alto, California, USA., 'Electric Power Research Institute, Washington, DC, USA

ABSTRACT The arsenic ambient wattr quality criterion (AWQC) for protection of human health via Ingestion of aquatic organisins is currently 0.1.4 Ittg/L. This A-wgc is derived using a hip concen Lrati on factor (BOP) of44, which is a consumption-weighted average based on two data points for oysters and fish that was proposed by the U.S. Environmental. Protection Agency in 1g SO for broad application to freshwater and marine enIfirernrients. This BCE' is based on the assumption that bloaccumulation is a simple. linear function of the exposure concentration. In the nearly quarter of a century since thh BCF was promulgated, there have been addidons to the arsenic bioaccumulation database and a broader scicntific understanding of bioaccumuladon mechanisms and bow they can be applied to estimating tissue concentrations in aquatic. orpulans, From this database, we identified 12 studies of arsenic bioaccumuladon in freshwater fisl-ies hi order to explore differences in laboratory- generated BCFs and field-generated bioaccumula don factors (BAFs) and to assess their relationship to arsenic c-oncentradons in wa Let: Our analysis indicates that ar- senlc concentrations in tissue and arsenic BAFs may be power functions of arsenic concentration in wata; A p over fimction indicates tha t chc highest BOlt vatues may occur al low background levels and may decrease as environmental concentrations increase above the ambient range. Ney'Wordsi arsenic, bioaccumulation, ambient water quality criterla, fish consumption.

NTRODUCTION

The ambient. water quality criteria (AWQC) for arsenic for protection of human health are currently 0, 14 A.g/L for. ingestion of fish alone and 0.018 p.gell, for ingestion of fish. and water. These values are at or below background concentrations for aisenie in fresh, estuarine, or marine water. Consequently, there is current

Received 3 August 20051:rev1sed manuscript accepted 10 Novombtr 2005. Addrtss correspondence to L. Williams, Integrai Consulting Inc., 1900 SE 28th Street, Suite 300, Mercer Nand, WA. 08040, USA. t-roal l; 1.411larnsgEntegral-eurp.coin

904 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 28 of 120 PagelD 52

040-965, 2007 Hurnan and Ecologkal Risk Assessment, 1 Copyright Taylor & Francis Croup, LLC ISSN: 1000-70a9 print/ 1504080 online 001: 10, 1080/1080703070/2b06454

N. 'a in A of Total and Arsenic Commonly 15 Variation Speciated 0 Consumed Fish and Seafood i.,,,N.

r t R. A. Schoof mod J. W. Yager! Mercer Island, WA, USA; qlectric POwer Research 'E 'Integral Consulting Inc., a USA E Institute, Palo Alto, CA, 0. r.5. To ABSTRACT. d... an for predicting This article 'compiles available data and presents approach acid (MMA), and. I§ human intakei of inorganic arsenic (Asi), monornethylarsonie anti freshwater seafood when 0 acid from marine, estuarine, dime thylarsinic (DMA) data ra are studies 0 arsenic conce.ntrations reportcd..Twenty provided only total (As to!). 10 Mean concentrations were approximately to on (As) and As,. A-si 0, total...arsenic e whereas crus- n anadromous, and. marin fish, 20 wet weight (ww) in freshwater, ng/g of 40 to 50 ww. Thirteen molluscs had n-lean A. concentrations ng/g taceans and DM& MMA was seldom detected, whereas studies provided data for M.MA and DMA. arid 45 to 05 ng/g Ww in anadromous fish, averaged 10 ng/g ww i15 freshwater fish, was little correlation between Mt.( marine fish, crustaceans, and molluscs. There when Moll data are, available concentrations and As, concentrations; holvever, only these do ta. could support conservative, to assess health risks from arsenic in seaeood, to be Fox- marine and estuarine end estimates of the of Asi." likely As,. upper percent of of was Asi at the 75.th percentile fish, and crustaceans and molluscs 2-3% /14..s, of at the 15th Duo to the damsel- For freshwater fish As] was 10% As, percentile. of the DMA concen- the noniinearity and. low carcinogenic potency DMA, reported health risks from arsenic in trations should not contribu te substantially to potential seafood. acid, add, Rill- Words] inorganic arsenk, dirnethylarsinic n-ionomethylarsonic Key seafood arsenic. bien t water quaiity criteria, fish consumption,

INTRODUCTION been -used to estimate arsenic intake Total arsenic concentrations have his torically the of arsenic howeveii it has long been known that majority from fish and seafood; total forms such. as arscnobetaine. Thus, in marine is in relatively nontoxic organisms of the intake ofother forms arsenic conc.= trations infish are not accurate predictors total and fonns of arsenic, of arsenic. More recent:studies have reported spectated 1.2 2007. Received 8 November 2006; revised nrarniscript accepted january Inc., 7900 St 3ch Street, Suite Address correspdindence to R. A. &hoof, Integral Constadng rschoof@integral-corp. corn 110, Mercer Island, WA 08040i USA,. E-mail;

940 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 29 of 120 PacielD 53 r mazigfpaminas -.r.-Esmaggimagamessumasemmoimia

Food and I• Chonrof To..t+cology 37 0999) 839-844S pERGA,MCIN 9 Icklinie1E134' Tawiv

minarAISevief.komi.oente toodeheatiox 9 r Research Seclion

9 A IVIarket Basket Survey of Inorganic Arsenic in .Food 1. R. ..e/ A. 80-100F"*. L. J. YOST'. I, EKKHOFP. E. A. CRECELILIS". e D. W. CRACIM D. M. MEACHEW and D. B. MENZEL' 'Exp./int nI. J3eIlew. WA, :Q4VIRO!... Arrington. VA. 'fialielIe Marine /011 Am.:than Norih Sciences. 5nim. WA. 'Elf Arnoricu, Inc.. PhiindeIphio. PA and (UniversV of Cuilforniu, IMne. CA, USA. cif, Arrt-priref 7 PriProvrry 1999.

Atisirgic/ —Ofmar arsenic y. rnizke csi:irnme5 WISeif On iouri Sun-eys 1iiIe tomccrimoicips r. be domiinned bt /make nr Lbe gimu- re/uovely normoxin. orgnine aritii/C forms found in uvrood. irmitim or ursenie in Conoco. inorgunic fond have not been noi weli ehmacierixrd. norret Aecuraie dietnr) iniuke es* for Inorganic auenk are nceded to suprori studies of menies !r.i!Us :i Lin esscriliah and in esuabIrsh IeveIs bdek.Fpound of -exposure LD innçnnk urnpite, J Lho rporked here. 40 market biokei sue,, et cammonfeiunlicipined ID provide ai Icor 91Pc. of were identified, Four &hal. inenganfc arienic /make simplex Dr,rith ecimmodg9 -1•DiA NaOH arsenic was nnAysed u51ng Lin digesirna and incluvlicely eoupled pIusron-rnass for aisenix iidm specirorneiry, Separaic aliquots Went ariplysed specks n MCI digesiion and hydrEde uMmio earricr toga! absorralon spretrostori. Co1i5kicki yr/1h sordre4, argcn.le cDrJ ruIru luO co'ntepLniLlons rcp•Dzied js ekrOtriNI Ii0Mule Ati3O0) were. hights/ I! ih scufond.s sampInd iranghta frorri /60 g in fresh•aier iI snliWillEr kg A;h to 9.6.(1 ng nshi. von(rast, 3V61r44 Ursrnic h sfl3foo1 The inorga)ic ranted (Min less ihan I ng g Jo. e71: highesi inor@unlo arsenic. s-alucs 1, yerc found /n raw rive (74 rig AA/owed flout grup.: and gh. by t I ng Juke (9 kg gp conked splinrch tA nig gi. Thos. and tura gi'oins produce 3TC eKpected tootr/huicrs ro dielwr.;" rnorpunie arsenic sign111- intake, C.. ./9]4 Etre•ier $ifrnst-t Liii, AFI risha resnerov?

Keywords: inoryjnie urEtnrc dieiary exposures.; arsenic in fond.

Ab4netialions: OMA dinneLhyllarserife MMA rronnome.th•l•rsome ecrd.

iNTROPI:citON I ijelinek and Corne1iu4en. }RI?: Schroeder and Ars.enie has heeh dtimied 'in most Foods iesied. Billussu, 19661. Aiihou0 arsenic ht in may prcseni foOds in, a var. Stuclie$. of" the arsenk rornl 9 icES.ni found in Anfih And organk compounds tis well us in shelllish huve 4ms. inorgink demonstrnted rhui most arsenk in 11, most .Frudies I-nive reported onh. cola/ !hese fonds tirsenin occurs aS n'tcaryinied arsenic corn- CC;vicenIralions. Based on sludits in laboratory ani- pands. +kith on11.12. small nmonnts or inowni, M:4 Tnorgunic isr.Ranic may be a required nui.rieeL arsenk :111r;r itbrntins: preseni (Buchell et A. 1994; FranceNeci r1.1 however-, ihe -required imaku and the Had ..1.n Edmonds. J994: Phillips'. /994: Yosi el vit. .rkites from (.1..pie.lil diets une riOL well' tharacterimd i199Eq. 1nnrrnic arsenic is not formed arier tt.rlIhos, 1994a.b; Llihus and Scaborn. .0009 ingef- 9. DurMeing iIon or se .11SI isi.o compounds lEinchel et ail,. 19-1. 1996). deCades. much prorFen has bten made 4;1 indicatiing Milt or nu mei:40E3m in, LO thc 113. uncf•USL^Indillg ihe 1OrM6 find cenocniralions or humans most [crixit arsenic. The in scirrin forms of complex aornic .Elir.s..enric roods The primary focus ur prkg Compounds ihal in marine r.grnlirth hIS been on arsenic in predominaie organfsms. ri ountie argnnisms. 1, or much feu /ktlicly .11/A1Cr ihan SOIn.hle ;91, pi. Which contain lam] arsenic coneenirnlions inoilunic Ihret rarearsenic eornpounds.. hAT'lLfi unsenoticluine (Lbe .124.1.2.1.0 orders. or mtignfiank grcaier thim Lola!.prtdch... minhnt compound in hallsh) tptioentraLions in foods of terresTrinI orivin ticins virtual!). non- taNk (Si; i 0 in i. /991: Yam/II/chi on d Fowkr. I 991 F. 1.:. M onOMAYNTIMinic [MMAJI and dirncihy]kifknic g. 9 L'nuIPI, 4111.116r. v..'.. e 1DMM add une niso kw, aculeb toxic. than ihe. 41.ti 'S S•C ellillIer e from 1199Q EINhier14,11e110: ULF 13,.....x.,1-k-6411.5dYYJIIINI/1- All rijhAlis Wericd. Primed Fri Circut hillfirri Ez Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 30 of 120 PagelD 54

Rosalind A. &hoof, PhD, DABT Principal fr..t."$.1111r-4 Seatifo, Woshhigiton. +1 206.336.1653 rscbC3040rwirancorp.vorni

EXHUME Rosalind hos more. ikon 25 yeors of egg:1461mm ru asseis-slng r1h heo1lh efeas ond exposures r& ossessmed& ir CERCLA,. gCRA Pcoduci SoFey& Reguicnory from chernicol subssonces. She hos ce.IncluctEd numeroirs ir on avokrolion d Ila amnia Suppso and ate lows. Poso1inel is on inlemoflenollycecegnized empnrr 8.)v...sures direcied reiselfrdi on {he of melds from zoll ond chewy Assameriona &Risk and IrttePors, Stie hos bloavvilobIlliy oo numerous review Tor US 4Eoposkhre5 10 anon/c and alekils. Pombnd hos served peer pallets Manogameni Hoil0991 orticre5, Con.xf minbirios ond olher entilles. nd Itos been a r999.4--09r of ihne.9 Sclutbris RefrkeOrCh Celina commm. Techniocil Support ler thigution EXVERIENCE1-1101110.1-1TS

Dim:clod numerous ey01001roas of chernIcoll Io1cICy. derryoiron of rbia.ased exposure fervals, CREDENTIALS dsk essessmeni& for cancer ond nonconor ead pinF. ond muiiimedlo ossessmonls 01. lexlcology. 1.16Fit Bit./ miaard WrAL1143 IC) environmeniol cheml.co1s for divero mlnlag end prixesfra S111.6s„ d CI rid nnoll mookathing Feo. NesaErroiors, onci DIhr souros5 of OXpC6016, 8A, Winkiculor ElOology, Model Toxlcs Conriol Ad Science Coo* sewing on 111-0 WoshInglon Depo nrn en! d Ecolow Wollprkiy Coll* Risk Asrressrnoni. Pond, os well as on In edliariol board ofl-lumon and Eco4lool korci Cenliled oi iniernofionol'oanfenances• Comolnied numerous polalkanons and imilsd IOU Oli Toxicology. Arneilcon Board owl ol Toximlogy Pplon-rois workshops. of oisla in soll for lin) 1.15 Pak ongolng Dreded Ihe devaloprneni of guides on ihn eyoluolion cii WocnraciblIli,,, tecerVicoNttrr currenG Deporimeni of Defsnso ond ihe Onharto MInIsrq of Ihe conthrcied diverse. producl 00doommunity exposure 0 ric1 ask ossessmaill& Provided evng opinions 10( divi&o I1iiri1kri mollars. kmdivod iIio 2007 tordma. AcilEeryarnelei Awor.d. arden by Me,r5onuol inlernalronO1 Carieseinar o I1 or on sedirmods soils and Worac. The owerd wos prasenled under ihe auspIces UnEversflY ass8ssed ihe Mossochusahs far 5rgnIiicool conhibullon lo fisitIl of science or srigineerring. 05 by level and horoury of conldiAlim, assurripllon of rozpori5thillties ond volorrieerIsm hr choriale onounigoiions end nogg-pram groUPS,

ENYERON Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 31 of 120 PagelD 55

Verso Papor Carp. Mil ..5,...4- orinciroorkogle PO Box 20 )ay, ME 04239 NirEFZSCo. Kenneth Gallant. Environmental ServIces

11` 207 1397 in3 p 207 897 1.783

www.versorysper.com

April 76, 2011

The Honorable Thomas B. Saviello The Honorable James Hamper Co Chairs Joint Standing Committee on Environment And Natural Resources State of Maine Legislature Cross State Office Building, Room 216 Augusta, Maine 04333

RE: LD 515 An Act To Review Sthte Water Quality Standards

Dear Senator Savleflo and Representative Hamper;

I am submitting these comments on behalf of both of Verso's Maine mills in Jay and in Bucksport, We are submitting this letter in support of revisions to Maine's Ambient Water Quality Criteria for inorganic arsenic as proposed In LD 515. Verso Is particularly interested in the setting of a new freshwater and saltwater criteria for arsenic based on a risk level of 10-1 resulting in a water quality criteria of 1.2 ppb (parts per billion) and 2.13 ppb respectively. This as opposed to the current /V risk factor, resulting in a fresh water quality criteria of 0.0/2 ppb. Verso is also in support of revising section 420 to allow the reduction of mercury sampling to once per year and tile clarification that metals limits shall be expressed only as mass-based knits. Lastly Verso supports the provision in LD 515 that allows the Department to utilize any allocation set aside ror future growth if the use of that allocation would avoid a reasonable potential finding or an exceedance of applicable ambient water quality standards.

As stated above, Maine's current fresh water quality criteria (WQC) for inorganic arsenic is 0.012 ug/L. There are twenty-nine states with inorganic arsenic WQC ranging from .5 ppb to 24 ppb with a majority of States at 10 opt) 033 Limes greater than the State of Maine.

A WQC criteria based on a risk factor of 10'4 Is based on sound science and remains protective of the environment, While allowing dischargers, who in reality have no control or the discharge of arsenic, to remain in compliance. Arsenic is naturally occurring and is found in the bedrock of Maine, as a result it occurs in Mainers surface and groundwaters, Arsenic is also found in many of the raw materials utilized in the papermaking process such as wood fiber, clays and fillers. Dischargers have little or no control of the amount of arsenic found in their effluent, there is little or no predictability in what any particular test result might be, nor Es there any practicable treatment technology to employ to reduce the discharge of arsenic.

Verso simple: Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 32 of 120 PagelD 56

If the Maine DEP continues tile process of placing arsenic limits in licenses based on arsrisk factors, Industrial and municipal facilities that have never been in non-compliance before wfil be found to be out of compliance with little or no effective means to meet compliance,

Current revels of arsenic found in many of Maine's public and private drinking water supplies would exceed the ambient water quality limlbs proposed in LID 515 based oil the 10-4risk factor and a resulting water quality criteria of 1, 2 ppb. Put simply, the proposed water quality criteria in LD 515 is still far more stringent than MaIne's drinking water standards for the protection of human health.

Passing LD 515 as proposed will not result in an increase In arsenic discharged and ft will not have a negative impact on the environment. The science shows that LD 515 will be protective of aquatic and human life and will not needlessly put many industrial and municipal dischargers in an out of compliance situation with little or no means of control,

Verso urges the committee to vote this legislation as ought to pass.

Respectfully submitted,

Kenneth Gallant Manager, Environment

CC:

IC Aldridge C. niudrick M. Connor V. Gammon C. Jackson W. McDonald W. Taylor R. White Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 33 of 120 PagelD 57

jq Office of the Chief and kil.170:

Kirk R. Fran 6.s igk penobsreot Nation 12 Wabaliaki Way Chief 6,

.9 :9. Commmilly Building Bill Thompson rer A.411.7;:-,1::', ;!....gt 9fZCZIf.:TeI '70....,,t:fr'i!/_407.1'11V n TV1:,rt,;•-9..., Vice-Mei ap.64. gm Indian(120s177.d82.M7.177604463 Wayne T. Mitchell k .-.4-lipperit." PAX (207) 827-6042 Representative 12-1-;:t4414 TESTIMONY AGAINST LD-515 "AN ACT TO REVIEW STATE WATER, QAULITY STANDARDS" COMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES APRIL 26, 2011

MR. SENATE CHAIR, SAVAIELLO, HOUSE CO-CHAIR, HAMTER DISTINGUISHED MEMBERS OF THE COMMITTEE, MY NADU IS WAYNE I% MITCHELL AND I AM THE REPRESENTATIVE TO THE LEGISLATURE FOR THE PENOBSCOT NATION. I COME BEFORE YOIT TODAY TO DISCUSS THE BILL BEFORE YOU LD-515 AND TO ENLIGHTEN YOU AS TO TIEE CONCERNS AND CONSEQUENCES THIS BILL HAS FOR THE PENOBSCOT NATION AND HER PEOPLE. ALTHOUGH THIS IS A CONCEPT DRAFT RILL AND THE PARAMETERS WILL BE WORKED OUT Turs PUBLIC DEARING AND WORK SESSION WE HAVE CONCERNS ABOUT RELAXING TEM AMBIENT SURFACE WATER QUALITY CRITERIA FOR ARSENIC. IT IS MY UNDERSTANDING THAT THERE ARE CERTAIN DISCHARGERS OF EFFLUENT INTO OUR RIVERINE SYSTEMS WHO ARE STRUGGLING TO MEET THE CURRENT STANDARDS: THE DILEMMA IS THAT SOME WASTEWATER TREATMENT PLANTS HAVE SOURCE WATER WITn ARSENIC LEVELS THAT EXCEED THE SURFACE WATER CRITERIA. I AM IN NO WAY AN EXPERT IN THIS AREA NOR DO I PRETEND TO BE, HOWEVER, IT SEEMS TO HE THAT WHEN WE ARE TALKING ABOUT HUMAN HEALTH ANT) THE RISICS POSED BY ADHISTING OR RELAXING TfEE CRITERIA ONLY ADDS TO THE PROBABLE HEALTH EFFECTS ON OUR PEOPLE. HUMAN HEALTH CRITERIA FOR SURFACE WATER CAN-NOT HE RASED SOLEY ON HUMAN CONSUMPTION OF DRMING WATER AS THE PATHWAY FOR ENTERING THE HUMAN BODY. EATING ACQUATIC ORGANISMS SUCH AS IS ANOTHER PATH THAT BIOACCUMULATE ARSENIC. AS SUCH TO LOWER THE STANDARD OR RELAX IT TO WHAT IS BEING PROPOSED WOULD CHANGE THE ACCEPTABLE CANCER RISKS LEVEL PROTECTION FROM 1 IN A MILLION TO 1 IN. 10,000. IS THAT TRULY WHAT THIS STATE WIIINTS To DO TO ITS CITIZENS?

•WE ARE OPPOSED TO THIS BILL AND ANY RELAXATION OF THE ARSENIC STANDARDS BECAUSE THERE IS INSUFFICIENT INFORMATION FOR THE PEOPLE AFFECTED EY THIS BILL FOR OPEN AND THOROUGH VETTING. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 34 of 120 PagelD 58

SECONDLY, THE BILL IS UNNECESSARY DEPARTMENT RULE 069 CHAPTERS 584 "SYRFACE WATER QUALITY CRITERIA FOR TOXIC POLLUTANTS ALRADY PROVIDES THE PROCESS FOR ALTERNATIVE STATEWIDE SPECIFIC CRITERIA. LI) 515 APPEARS ON ITS FACE TO BE AN ATTEMPT TO CIRCUMVENT THE RULEMAKING AND PUBLIC PARTICIPATION PRocEss ALREADY ESTABLISHED, CHAPTER 584 STATES THAT ALTERNATIVE STATEWIDE CRITERIA"., „MUST BE AS PkOTECTIVE AS EPA'S WATER QUALITY CRITERIA. SUCH CRITERIA MUST ALSO BE PROTECTIVE OF THE MOST SENSITIVE DESIGNA'TED AND EXSISTING USES OF THE WATER BODY,INCLUDING, BUT NOT LIMITED TO, ILOITAT FOR FISH AND OTHER ACQUATIC WE, HUMAN CONSUMPTION OF FISH AND DRINKING WATER sumg ATTER TREATMNT"

RELAXING THEACCEPTABLE CANCER RISK FACTOR OR OTHERWISE RELAXING THE HUMAN HEALTH SURFACE WATER CRITERIA. FOR ARSNEIC VIOLATES THE PENOBSCOT NATIONS SUSTENANCE FISHING RIGHTS AND THREATENS THE OVERALL HEALTH OF TRIBAL PEOPLE. BECAUSE TRIBAL PEOPLE CONSUME. SIGNIFICANTLY MORE FISH. AND ACQUATIC ORGANISMS THAN THE GENERAL PUBLIC OR SPORTS PUBLIC, WEARING IHE ARSENIC CRITERIA WOULD PUT PENOBSCOT PEOPLE AT AN UNACCEPTABLE AND mum HIGHER RISK. FOR EXAMPLE, AT MODERATE LEVEL FISH CONSUMPTION RATES OF 286g/DAY DOCUMENTED IN THE "WABAI4AKI TRADITIONAL CULTURAL LIFEWAYSEX.POSURESCENARIO(Attna/www.majgoy/neigovtitribestpdfs/DICT A.pdt) RELAXING THE ARSENIC CRITERIA TO TUE LEVEL PROPOSED WOULD EXCEE 1X10 TO THE NEGATIVE 4 CANCER RISK FOR TRIBAL MEMBERS, EPA'S AMBIENT WATER QUALITY METHODS RECOMMENDS USING IXIOTO THE NEGATIVE 6 AS AN APPROPRIATE CANCER RISK FOR TEE GENERAL POPULATION AND INDHCATES" IN CASES WHERE FfSH CONSUMPTION AMONG InGHLY EXPOSED POPULATION GROUPS IS OF A MAGNITUDE 1X10 TO THE NEGATIVE 4 RISK LEVEL WOULD BE EXCEEDED, A MORE PROTECTIVE RISK LEVEY, SHOULD BE CHOSEN" (EPA METHODOLOGY FOR DERIVING AMBIENT WATER QUALITY CITERIA FOR PROTECTION OF HUMAN HEALTH, 2000),

THANK YOU FOR LISTENING TO MY TESTIMONY AND I ASK THAT YOU NOT LOWER THE SURFACE WATER STANDARDS ANY FURTHER. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 35 of 120 PagelD 59 S.TAIR OP MArIkM i:)1PAP..TME.NT OIR ENVIRONMENTA,L Pz OTEGT1ON itiOE1,ryini i 5001r-ler- itetiocr C41-2/ DANRYLN.PROWN PAUL R. IA PAGE coldiMPRER crcattlakiik

TESTIMONY OF DARRYL BROWN, COMMISSIONER MAINE DEPARTMENT OF ENVIRONMENTAL PROTECTION

SPEARING IN SUPPORT OF L.D. 515

AN ACT TO REVIEW STATE WATER QIIALITY STANDARDS

SPMISORED BY REPRESENTATIVE THOMAS SAVIELLO

BEFORE THE JOINT STANDING- COMMITTEE ON ENVIRONMENT AND NATURAL RESOURCES

DATE OF HEARING: APRIL 26, 2011

Senator gaviello, Representative Hamper,. and members of the committeej am Darryl Brown, L.D. 515 An Aar Commi%sioner of the Department ofEnvironmental Protection, speaking In 6upport of the tO discus.s ro Review Awe Waier Qu,ality giandar& Recently my staff and I have had opportunity to work with with. interested. parties certain aspoots ofthis concept bill and I appreciate the opportanity to the bill, them to flesh out the details that we s& today in Senator Saviell.o"s amendraent

overall to and Maine's water quality standards are an integral partof the State's system protect establish a improve the waters of the State. In particular, Maint law and Department regulation comprehensive system to ensure that dischargers of toxie substances arc appropriately regnlated. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 36 of 120 PagelD 60

LD 515 Testimony of Department ofEnvironmental Protection (April 26, 2011 Page 2 of 5)

Secti.on 2 of this bill specifies that the bepartment shall utilize a 104 (1 in 10,000) TA level when. calculating ambient water quality ciiteria for inorganic arsenic. This change would modify the State's ainbient water quality °Ater-ion for inorganic.arsenic for the protection ofhuman health for fresh waters criterion from 0, 012 parts pea- billion (ppb) to 1, 2 (ppb), it would also modify the States water quality for inorganic arsenic for the protection ofhuman health for marine waters from 0.028 (ppb) to 2.8 (ppb), This change wola id make. the States ambient water quality.briteria for inorganic arsenic 100 times less stringent than it ig now. While such a change may seem at Erst concerning, there are several

to so reasons why the Department supports this change. Thia is a compleX issue with many. aspects it, in the interest of time I will limit the details in my testimony and we will be able to provide a more in depth discusaion at the work session. However, some background information is warranted in. my testimony today.

EACICOR.GUND:

In 2005 the Deparhnent adopted the Environmental Protection. Agency's (EPAs) most recent human heath criteria for inorganic arsenic, Inorganic arsenic is classified. by EPA as a human carcinogen. The Department utilizes the humanhealth inorganic arsenic water (In alitY criteria when e, tabliAling inorganic. arsenie discharge limits in waste discharge permits. These discharge limits are currentlY EPA established as a report-only limit (that 3.8 they are not enforceable) until such time as the approves

a test meth6d for inorganic arsenic.

The inorganic arsenic criteria are derived from, a fommla that considers a variety offactors regarding cancer risk arsenic and a theoretically. exposed person. The factors include a cancer potency factor, a th.1 level, a bioconeentration factor, an. assumed body weight, and an assumed water and consumption criteria. rate. Changing any of these factors will change the final human health water quality

Some of these factors, such as body weight and water consumptionrate, axe 8tandaxd commonly accepted factors for risk assessment, Other factors, such as the cancelpotency factor and the bioconeenhation factor are based on the inorganic arsenic pidance *cm EPA and are subject to. to Maine change as additional research is conducted. One factor, the fish consumption rate, is specific

consume freshwater and is based on tha 97th percentile for Maine recreational anglers who report they Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 37 of 120 PagelD 61 LD 515 Testimony of Department ofEnvironmental Protection... (April 2.6, 2011 Page 3 of 5) fish caught in Maine lakes, streams, ponds, and rivers. This Maine based fish consumption rate of32.4 that consume grams p er day is 'designed to protect the aubpopulation ofrecreational anglers frequently sport-caught fish and 18 higher than the current national defanIt fish consumption rate of 6.5 grams per day used by EPA for arsenic. The final factor, the cancer risk. level, may, based on EPA gaidance, be. decision. This is adjusted within a naimally scceptecl.range as a matter ofpolicy in a iisk management whatis proposed in Section 2 of the bill.

CHANGES AAR MICESSARY:

Why should the Segislature consider such a change? Shortly after the adoption of the inorganic arsenic criteria in 2005, the regulated community began to voice concern regarding the technical ability to A meet inorganic arsenic waste discharge limits once they tut established as enforceable limits, review by the Department of available arsenic treatment teChnologies reveals that there is little to no data implementation of fall scale WO,Stow ater treatment teclmologjes for arsenic, There is however it that available on drinking water treatment technologies. Based on this data appears treating wa tewater effluent to meet cuirent arsenic discharge liMits is likely not technologically or fmanci ally feasible.

It is worth noting that the OD rrent drinking water standard for arsenic under federal and atate. regulations is 10 ppb, or 83.3 times highei than the freshwater arohient water criterion ourrently established in Department rule. The primary difference betWeen the drinking water standard and the ambient criterion is attributable to the different approaches -used .under the Safe Drinking Water Act and the. Clean Watei. Aot to establish standards. 'The drinking water standard was established based on and its the a risk benefit approach that considered the available arsenic treatment technology cost; ambient water quality criterion was not.

of 1 in The current ambient water quality criteria were established with an excess cancer risk level 1,000,000. The proposed criteria in LD 515 would be established using a cancer risk level of 1 in issues related to 10,000. Deteimining what is an acceptable. degree ofrisk after considering all of the the inorganic arsenic criteria ig an appropriate policy decision for the legislature to make. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 38 of 120 PagelD 62 LID 515 Testimony of Department of Bnviioirnie.nat Protection (April 26, 2011 Page 4 of 5)

It is worth noting that this issue is not unique to Maine. Ambient arsenic criteria differ widely across the country. Many states utilize the current. federal drinking water stan.dard of 10 ppb, Some use the prior federal drinking water standard of 50 ppb. Others have adopted the BPA ambient criteria and modified them based on state specific factors for fish comumption or an alternative caneer risk faotor•

You should be aware that .under the Clean Water Act a change in Water quality criteria, such al proposed by this bill, would require approval by EPA in order for it to become effective. In order to

approve the revised criteria. EPA will require a demonstration from the Department. that sensitive. subpopulations in Maine are not exposed to a cancer risk otater than 1 in 10,000. The Deportment believes that this demonstration can be made given the State's use of a higher fish consumption NW than the national guidance, and provisions in the Depannent's water toxics rule that allows for site specific criteria to be developed for distinct gubpopulations that may consume higher amounts of fish,

The Department believes that the proposed inorganic arsenic criteria, while Jess stringent than the current criteria, is still appropriately protective and addresses the very real issue ofwhat is technologically and financially achievable. You should also note that a change ia the current criteria

does not mean that we will 800-an increase in the amount of arsenic discharged or an increase in the

amount of arsenic that people are exposed to. We will most likely continue to experience the same levels that we currently see.

My last comment on the inorganic arsenic criteria is that this issue is directly related to another bill, L.D. 510 4 A6 to .Excinde Shellfish .Proce.wing Facilitiesfrom Arsenic iffaetewarer Testing fl-mt was heard at. public healing on MaEc.h 2.3rd. I suggest that the work sessions for these two bills be scheduled back to back.

There art other aspects of this bill that I will briefly comment on now and provide additional details as needed at the work scission. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 39 of 120 PagelD 63 LD 515 Testimony ofDepartment of Environmental Pro te.ction (April 26, 2011 Page 5 of 5)

Section 1 provides the Department the ability to reduce mercury testing for discharges ifthere is at data since least five years of test data. The Department. has acquired a significant amount ofmercury

1998 -when testing was established and in many cases believes thatless testing is appropriate.

Section 3-wmild allow the Department flexibility in die use of any allocation set aside for hinge Surface growth, such as the water quality reserve specified in Department Regulation Chapter 530, Water ToxiCs Control Prograni, when calculating discharge limits for toxins. The Department has acquired a significant amount of experience in establishing toxics hmits since Chapter 530 was promulgated in 2005 and believes that this additional flexibility is reasonable.

Section 4 specifies that permit limitations for metals be established only as mass based limits. Department Regulation Chapter 530, Surface Water Toxic$ Control Program. specifies that metal limits must be establidied as both innts based and concentration based limits. The Depar[ment has acquired

530 was in a significant amount ofe.4 crience in establishing toxics limil.s since Chapter promulgated 2.005 arid helieve_9 that concentration based limits are not n..ecessaiy for the protection ofwater quality In it is as toxicity is a function of the mess discharged wider critical conditions. addition, recognized that most treatment facilities are not specifically designed for the removal of metals and therefore establishrnent of a concentration based limit may not be appropriate. Therefore, the Department believes that this change is reasonable.

I appreciate the opportunity to provide onr comments and wonld be happy to answer auy questions or provide additional information. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 40 of 120 PagelD 64 EXHIBIT xv... ii.kot 8.4, I-1 IF d r-- BAN I ...7. y.3.....1.?i,.,..;f•i. TEL,

mix.ri- T. iviir.. j Sin 3.0) A.-rilDRNEyGEN6FVL...:1%P*7.''..er JIII.5 CONGRESS ST., s. l'OhTLAND, MMNE. IN lei Tm., (207) r3B2-02.15•0 FAN, [Z07) ati2,0259 STATE DP MikiNE 11 ACCESS H.1.11.61WAV. &IT- i TEt: (207) 828•8i300 01, F1CU OF 111M ATToRge'y C4•13N13•rtikt. Cmilootp., Meam 04736. TTY USERS CALL MAINE RELAY 711 6 SiArr•L3 IfOusu. suvrIoN •ireu (207) 06,379Z Auh8OSTA.AVIAma 0.1333-006 1.1..3a; (207) q 96,3231

Sammy 9, 2013

Aim E Williams Senior Assistant Regional Counsel U.S. EPA Region I 5 Post Office Square— Suite 100 Boston, Massachusetts 02109-3912.

Re: Water Quality Legislation

Dear Ann..

in f have been asked by the MEDEP to review several amendments to Maine statutes As 40 CFR order to certify changes to Maine's water quality standards. required by 131.6(4 to State law, I certify that the following statutory amendments were duly adopted pursuant

2011-2012 Legislative Session

State Water Standards." This law PL 2011, cr 194 (LD 515), "An Act to Review Quality became effective September 28, 2011.

EPA .The Attorney General joins in the request of MEDEP Commissioner Aho that approve and without distinction ti2 to the new and amended water quality standards unconditionally, To the extent EPA Indian waters. Sea Maine -v. Johnson, 498 F.3d 37, 43 (l't Cir. 2007). does as effective the anything other than unconditionally approve the enclosed standards throughout of the basis for the refusal to State, we also ask that EPA provide a specific explanation legal EPA's that Maine's adopted grant that unconditional approval. To the extent it is position duly BPA's water quality standards do not apply to waters whhin Indian Territory, please explain to such waters. EPA's failure to explain its position a2 to whEit standards are currently applicable of those for on those issues in recent years has complicated the job responsible position with hnplementhig the Clean Water Act in Maine, and the job of those respomible for complying where should be none. it. as well. It has generally created confusion there

review If I can be Pursuant to 40 CFR 131.21, we look forward to.EPA's and approval. of further assistance, please do not hesitate to contael me. Sincerely, /A/WV Gerald D. Reid Assistant Attorney General. Chief, Natural Resourees Division Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 41 of 120 PagelD 65

EXHIBIT

2 06-096 r:I.EPARTMENT OF ENVIRONMENTAL PROTECTION

Chapter 534 Surface Water Quality Criteria for Toxic Pollutants

SUMMARY: This rule establishes ambient water traality criteria for toxic pollutants in [he stirrlace wa9rs of the State. The rdie also sets forth procedures that may he used to determine alternative SIAM ide c.rkeria or Site-specific criteria adopted es part of a Licensing proceeding',

Criteria and Applicability. The ambient water quality criteria established by this rule are. applicabk to ail surface waters of the State. These criteria are intended le prevent the occurrence of toxic polhuants in toxic amounts as prohibited by both the US Clean Water Act and State law and protect aquatic life and human health. Aquatic life criteria are intended to assure that toxic pollownis ere not present in concentrations or amounts that would cause acute and or chronic adverse impsoN on organisms in, on or using the surface waters.. Human health criteria are inbended to assure that toxic pollutants are not present in concentra lions or amounts that would cause adverse impact to persons who eat organisrns or drink water taken. from the surface waters. In beease. of mythic waters the consumplion of water will not be considered for apPlica!i on of human hea[th criteria.

2.. Narrative Water Quality Criteria, Except as naturally occurs, surface wafers must he free of pollutants in concentrations whieh impart. fox icity and cause those waters to be unsuitAlle for the existing and designated uses of the water body.

3, Numerical Water Quality Criteria

A. Statewide Criteria

(0 Statewide Ctiteria for toxic pollutants with national water criteria. Except as naturally occur, kvels of toxic pollutants in surface wafers must notexceed fedetzi. water quality criteria as established by USEPA, porsumil to Section 30e1(a) of the. Clean Water Act, or alternalive criteria established below.

statewide nrkeria are contained in Appendix A of' this role.

(2) Alternative Statewide Criteria. Altetnati ye statewide criteria must be adopted through r[demaking. Alternative. sta[ewide criteria nutst b based on sound scientific rationale and of be as protective as E.PA's water quality criteria. Such criteria must also be protective the most sells] ifee designated and existing uses of the water body, inoluding, but not limited to, habitat for fish and other aquatic life, human consumption of fish and drh*ing water supply rifler treatment. A prop c sal for alternative statewide Criteria must be initiated in accordance with petition for rulemaking provisions of the State Athrtinistrative Procedures Act, 5 M,R, S.A., Section 8055, and Include a thorough literature search ofthe properties of the toxicant, including but not limited La its toxicity, eareillogeakhy, teralogenicity, miottigodiiidty, bioacetimulationibioeoncentrallion, and regalation by other states or foreign counrrlos. Any such proposal must also take Into consideration, at a minimum, the following:

(a) Aquatic. Life Criteria: Physical, chemical or biological conditions found inMaine waters that differ from the information used as the basis for national criteria from the USEPA. When toxicity testing is to be done, the proceduns in 303)(1) will be used. Ambient data must be collected in general conformance with Chapter 530} section 4(D) and have sufficient geographic disfriburion to reflect varialion ofthe Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 42 of 120 PagelD 66

06-096 DEPARTMENT OF ENVIRONMENTAL PROTECTION

characteristics in clucstion. Where discharges may affect the factors used to determine water quality criteria, significant sources representative of the pollutant, c.hareeteristics and geographic distribution will be evaluated as part of a piePo3ai.

(b) Human Health Criteria:Changes to statewide eiriteria for the protection of human health must be. suppoitcd by inthrma lion fofiowing the general methods and considerations specified by USEPA in "Revisions to the Methodology for Detiv lug Ambient Water Quality Criteria for l ho.Protection of Huma alles h (2000), BPA- 822-B-00-004, USP.PA, Office of Science and Technology, Washington, D.C., 65 shall Federal Register No. 2.141 pp. 66443-66482, November 3, 2000. The Board consider this information arid information provided by the Department of Hainan Services.

all relevant information The Board niay request additional materials and shall consider when determining whether to adopt alternative statewide criteria.

(3) Statewide criteria for toxic pollutants lacking nafioiitil titi The requirements of section 3(A)(2) also apply to the adoption of criteria for toxic pollutants not having water quality criteria e-stabiished by USEPA, pursuant to Section 304(a) of the Cle.an Water Act.

13, She-Specific Cilleria, Sitc-speeffic numerical criteria for a toxic substance reflecting specific circumstances different from those used in, or not considered in the derivation ofthe the statewide criteria, or for toxic poi Wants lacking national criteria, must be adopted by Sections Board only as part of a waste discharge license proceeding, pursuant to 38 MRSA 4131 414, and 4 Site-specifie criteria must be based on sound scientific rationaie, c as most sensitive protective as federal \voter quality criteria and must be protective of the. dc-signated and existing uses of the water body, including, but not limited to, habitat for fsh and other aquatic life human consumption offish and drinking water supply after treatment.

Establish/lent of site-specific. criteria must he initiated with a request that the Board assume jurisdiction for issuance of a license. Where the Department finds a request for site-specific to 38 crherin may affect other agtIRICe.s disch urging to the same. waterwiy, iamay1 pursualli MRSA, Sectioa414-A(5)(A), reopen for modification those licenses for consideration in the criteria are evaluated same proceeding. The Information necessary to ensure that adequatety The of this must be submitted by a person requesting alteniative criteria. adequacy information shall be deteriulned by ale Board and may include, among other things, a of the literature search, user surveys and consumption rate catudations. A literature search properties of toxicants includes, but is not limited to, its toxicity, carcinogenicity, teratogenieity, mulagenieily, bioaccu imam{ ionibloconeentra[ion, and regulation by other uses of the states or foreign.countrie. Requests nuist provide information Identifying specific or information water h od y III question, and any other relevant sile-speeific circumstance criteria, different from those used, or any not considered, in the derivation of the statewide Relevnt information includes such things as sensitive or unique physical, chemical or and biological conditions ofthe waterbody, fare or significant Wont or wildlife communities habitats located in the water body, od: human populations having distinct uses or heeds with regard to the water body.

Chapter 584: Surface Water Quality Crlteria for Toxic Pollutants Page 2 of 23 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 43 of 120 PagelD 67

06-096 DEPARTMENT OF EN-VIRONMENT.AL PROTECTION

Any request to the Board to establish site-specific criteria must also include, at a minimum, the following. A plan of study milsi be submitted to the Depari ment for review and approval rekvant prior to die beginning of the 311.141k:8, and may include the consideration ofexisting scientific information @..g well as proposals for siie-specifie investigations.

(1) Aquatic 'He Criteria

(a) Minimunuequkements include toxicity testa conducted generally a ccordhig to the U8P-PA Waier Q0 aiiq Standards Handbook: SecondEditiota, EPA-82343-94-005-a, USEPA, Office of Water, Washington. DC, An gust; 1994, and applicable Water- criteria effect 10,a.tio Gu idance or other guidance for development of site specific approved by the Department.

one both dilution (b) For comp Lex effluents with more than potentially toxic pollutant, waters (receiving water and laboratory water) must be spiked with all pollutants present in the effluent in significant amounts, eKoept ate pollutalli ofinferesti the whole effluenat levels representative of the calculated reedving water concentrations at the appropriate design flow, Pollutants present in significant amounts relative to toxic levels inust be deicrinhied hY means or Periodic testing of wiLithi two years of submitting the plan of study to the Department. The pollutEmt interest nnist be added at various concentrations bracketing the target eoncentration (the existing or anticipated criterion) io determine an appropriate site-sPeifte criterion. This procedure must he repeated for each poThitant for which site-specific criteria are to be proposed.

(e) for discharges to freshwater, the water Ilea (Ceriodaphnia (IOW) reproductive arid survival test, and the brook trout (Saiveihnisionirincdo, or other Amonid approved by the Department survival and growth tests nuts t be conducted. fur discharges to marine waters, Mysid shrimp (Mystefopsi& bedikt) survival test, and the sea urchin (Arbacia puncirrfata) fertilization iest must be conducted.

(d) Results should be based on niea.s tired concentrations.

(e) For heavy metal tests, the metal roust he added hi the form of inorganic aloha of or sulfate relatively high solubility, such as n Orate sa its or in some eases, ohlorlde salts.

(0 Sufficient testing must be conduc ted to properly characteri2e seasonal variations and the water quality criteria of concern. Receiving water tad effluent sampling muaLbe representative of expected conditions and exclude periods of floods, storm events and abnormal operation of the discharge Source.

(2) liuman Health Criteria. Persons requesting site specific. criteria for the protection of human l lea lth mat provide information following the general methods and considerations specified by USBPA in aevisi OBS to the Methodology for Deriving Ambient Water Quality Criteria for The Protection of Human Health (2000), EPA.-822- B-0 0-004, USEPA, Office of Seience and Technology, Washington, D.C., 65 Federal shall consider this Regis iZrNo. 214, pp. 66443-66482, November 3, 2000. The Board information and infoimalion prodded bY the DeParimenll of Huai= Sryke.s, in dece.fillining if site specific criteria are appropriate, the Board shall first evaluate whether

Chapter 584: Surface Water Quality Criteria for Toxic Pollntants Page 3 of 23 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 44 of 120 PagelD 68

045-096 DEPAWIN ENT OF ENVIRONMENTAL PROTECTION

that there is art identifiable population(s) nsing a water body whose use(s) M distinct from of the popoiation considered when establishing the statewide criteria. If the Board identifies such a population, it shad consider activities or cus.toms that would constliate a which use of the water body srubs lankily different in type or extent than that upon statewide criteria art based, The Banal shall consider, among other things, the following:

(a) Studies designed and implemented to provide seen rate information regarding the fact aud extent of specific human aetiv ks that create a potential exposure to toxics in the use of water body, including such firings as the rate of consumption of organisms. and other water body as a drinking water supply, recreation in and on the water, specific uses of the water body established by local cultural or commercial prac(ices;

(b) The imp ortunce of organisms affected by a toxic substance, taking into considera(ion their plitees in the fbod chain and the degree to which they are used or consumed hy humans;

(e) Scientific evidence typlcally relied upon by experts In the field of toxicology showing the potential effect of a toxic substance in thedischarge that is the subject of the licensing, on Imman health, given a particuhir established use of the water body; and

(d) Unique characteristics o'the water body or organisms depending on it that effect exposure of humans to toxics in the water body.

a level that al most., 4, Risk levels, For any pollutant believed to be cal.ciaogenic, risk would result,: the must in one additional cancer per one million people (risk.of I X le) exposed to carcinogen be used in detennaining the human health criterion, Notwithstancjing the above. the Department arsenic. shalt utili, a 101 risk level wh. caleulatinl sin ent water 4. riteria for itgnunie

in The following as mnoptions have been used to determine the statewide oritelia coruained Appendix A of this rule.

A. Form of metals, All metals criteria must be considered as Co tod

as the dissolved form NOTE: Persons may request that the DepaOrnent express criteria for metals by submitting the appropriate information to allow recalculation ofrelative toxicity using conversion faotors and translator procedures published byEPA.: "The Metals Translator; EPA Guidance fa:Calculating a Total Recoverable Permit Liniit from a Dissolved Criterion", 823-B-96-Q07, USEPA, Office of Water, Washington, DC, iv= 1996.

B. Ambient water physk al charaeterls ties. Fresh water quality most be calculated using a pH Marine water of 7.0, a temperature of 25 degrees Celsius, and a hm-dness of 20 mg/L. quality of 30 must be calculated using a pH of 8.0, a temperature of 20 degrees Celsius, and a salinity a of a parts per thousand. Es marine water quality must he calculated using pH 8.0, thousand. temp eratnre of 20 degrees Celsiais and a salinity of20 parts per

The NOTR These e.haraeterislics, however, may vary depending on the location ofthe discharge. in .rclative criteria for s pollutant subjeet ro these considerations may be recalculated any given licensing proceeding using the actual local ambient physical water characteristics, See Chapter 530.

Chapter 584: Sudhce Water Quality Criteria for Toxic Pollutants Page 4 of 23 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 45 of 120 PagelD 69

06-096 DEPARTMENT OF ENVIROMdENTAL PROTECTION

C. Human health nisump dons. Human henIth eliteda are determined nsuming consumption of 2 Liters a mwer TLd 32,4 grams uf orgnisms per day taken from surface waters of the State by peron weighing 70 kg. 40,W, 4algibe above, w calm! ai in4 human 6.11/ 1.1 .;I1 12 I I grns

AUTHORITY: 38 MRSA Sections 34•1-11, 420. mid 564(51 EFFECTIVE DAM: October 9, 2005 (ram 2005-402, 06-096 Chapter 530.5 repealed and i'eplaced by lthfS and Chapter 530) EFFECTIVE DAM:

Chapter Sneace Water Qlialiry Criteria for Toxic Pollutara Page 5 of 23 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 46 of 120 PagelD 70

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I 06-096 DEPARTMENT OF ENVIRONMENTAL PROTECTION 7

Chapter 584: Surface Water Quality Criteria for Tok Pollutants

SUIvIlvIARY. This rale establishes ambient water quality cr i teria for toxic pollutants in the surface waters ofthe•State. The Tulle also sets forth procedures that may be used lo'zeIerinine alternative statewide criteria or she-specific. criteria adopted as pa rt. of a licensing proceeding.

14 Criteria A nd Applicability. The ambient water quality criteria established by this rule are appikable to all Skil•ne waters of thc State. These crheria are intended to prevent the occurrence of toxic pollutants in toxic amounts as prohibited by both the US Clean Water Aet and Shiite faw and protect inallo life and htnuon. health. Aquatic.fife criteria are intended to assure that !ado pollutants are not present in concentrations or amounts that would cause acute and or chronic adverse impacts on organisms in, on or rising the surface waters. Human health orituia are intended to assure that toxic polluumts are not present in concentrations or amounts tbat would surfacewaters. Valise adverse Impact to persons who eat or nisi-Jos or drink water taken from the of case of marine waters the consumption of water will not be considered for application human health crite-ria.

2. Narrative Water Quality Criteria. Except as naturally occilfS', surface waters must be free of pollutants in conoentrations which impart toxicity mid cause those waters to he unsuitable for the existing and designated uses of-the water body.

3.• Numerical \voter Quality Criteria

A. Statewlde Crlterin

(1) Statewide Criteria for toxic pollutants with itetionai water criteria. Except as exceed federal water naturally ocoar, levels of toxic pollutants in surface watersmust not. quality criteria AS established by USEPA., pursuant to Section 304(a) ofthe Clean Water Act, or alternative criteria e-stablished below.

StatevAde criteria are contained in Appendix A of this rule.

(2) Alternative Statewide Critoria. Alternative statewide criteria must be adopted through rulemaking. Alternative stmewide criteria must be based on 80.0nd scientific rationale and of be As proWdive as EPA's water quality criteria. Such Criteria must aho be. protective the most sensitive designated and existing uses ofthe water body. including, but not limited to, habitat for fish and other aquatic life, human consumption offish and drinking wAter .$upply after ireatmeni. A proposai for alternative statewide criteria must be initiated in accordance. with petition for ruiemaking provisions ofthe State Administrative Procedures Act, 5 M.R.S.A., Section 8055, and include a thorough literature search of the properties ofthe toxicant, including but not limited to its toxicity, oarebtogenieity, teratogenielty, mmagenicity, bionOumulationebtoconcentration, and regulation by other states or foreign. countries. Any such proposal must also take into consideration, at a minimum, the following;

(a) Aquatic Life Criteria. Physical, chemical or biological conditionA found In Maine waters that differ from the information used as the basis for national criteria from the USEPA. When toxicit),, test [rig 13 to be done, the procedures in 3(B)(1) will be used. Ambient data must be collected in general eon fonaance with Chapter 530. section 4(D) and have sufficient geographic distribution to reflect variation ofthe Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 65 of 120 PagelD 89

06-096 DEPARTMENT OP ENVIRONMENTAL PROTECTION

characteristics in question. Where discharges may affect the factors used to determine water quality criterla, signifk-ant seines represeniattv6 ofIhe poliulant) characteristics arid Kee graphie distribtukin will be evaluated as part of a proposal..

of'hiiIman (b) Email )1 acalth Criteria. Changes to statewhie criteria for the -protection health mug be supported by information following the general methods and considerations specified by USEPA in 'Revisions to the Methodology for Deriving Ambient Water Quality Criteria for the Protection of HUMan. Health (2130.0), E.PA-222.- B-00-004, USEPA, Of1c.e of Science and Technology, Washington, D.C. 65 Feder& Register No. 214, pp...156443-66482, November 3, 20100, The. Board shall con.sider this 'Information and informatioii provided by the Department of litimanServiees.

consider all relevant infOrmation The Board may request additional nmteria Is and shall when determining whether to adopi alternative statewide criteria.

(3) Statewide criteria for toxie pollutants Iaclthtg n tionai criteria. The requirements of not water seeti on 3(A)(2) also apply to the adoption of criteria for toxic pollutants having quality criteria established by USEPA, pursuant to Sedion- 304(a) ofthe Clean Water Act.

B. Site-Specific Criteria. Site-specific munerkat criteria for a.toxic substance reflecting specific circurnstanc.es different from those used in, or not considered in the derivation of the the statewide criteria, or for toxic pollutants lacking national criteria, must be adopted by 38 'CORSA Sections Board only as p Art of a waste discharge license proceeding, pursuant to 413, 414, and 414-A. Site-specific criteria must be based on sound scientific. rationale, be as ofthe sensitive pro toctivc as federal w cer quality Criteria and must be protective most for fish designated and exist ing uses of the water body, including, but not limited to, habitat after treatment. and o liter aquatic life, human consumption of fish and drinking water supply

Establishment of site-specific criteria must he inii fated with a request that the. B card assume jurisdiction for issuance of a license. Where the Deprulment finds a request far site-specific it to 38 criteria may affect other sources discharging to the same waterway, inay, pursuant In the MRSA, Sect ion 414-A(5)(A), reopen for modification those licenses for considerall cm criteria are evaluated same proceeding. The information 11 eeenary to ensure that adequately of this must be submitted by a person requesting alternative criteria. The adequacy Information shall be determined by the Board and may include, among other things, a search ofthe literature search, user surveys and consumption tare calculations. A literature properties of toxicants includes, but is not limited to, its toxicity, caroinogenicify, other teratogenicity, nantagen •hioacc LI mulationlbioconcent rat ion, and regulation by uses of the. states or foroign. countries. Requests most provide information identifying specific or information water body in question, and any other relevarnt site-specific circumstance statewide dIfferenz from those used, or any not considered, la the derivation of the criteria. Relevant information includes such things as senskive or unique physical, ohemical or biological conditions ofthe waterbody, rare or significimt plant or wildlife commit-lilies and with habitats located in the water body, or human populations having distinct uses or needs regard to the water body.

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06-096 DEPARTMENT OP ENVIRONMENTAL PROTECTION

Arty request to the Board to establish site-specffic crileria rats( ilo inQiude, at iirolildnittlin, the following. A plan of study must be submitted to the Department for rovlcw ind Approval relevant prior to the beginning of the studies, and may litchi de the consideration ofexisting scientific information as wdl as proposals for site-sp ecifle investigations.

(1) Aq itatk Life Criteria

(a) Minimum requirements include toxicity ter)3t.S conducted generally according to the USEPA Water Qualify Standards Eandhook: Second Edition, EPA-Kn-B-94-005-a, L1SEPA, Office of Wakx, Washing on, DC, August 1994, and applicable Water- effeet Ratio Guidance or other guidance for development of site specific criteria approved by the Department.

(b) For complex effluents with more than one potentially loxic pollutant, both dilution with all waters (receiving water and laboratorywater) must be spiked pollutanls the present In the effluent in sioni fie ant amounts, except file pOIN Cant of interest, or whole effhient at levels representative of the calculated receiving water concentrations at ii ie appropriate design flow. Pollutants present in significant amounts relative to toxic levels must he determined by means of periodic. testing of within two years ofsubmitting the plan of study io the Department. The pollutant interest must be added at -various concentrations bracketing the target concenlration (die existing or anticipated criterion) to determine an appropriate site-specific criterion. This procedure must be repeated for e•aoh pollutant for which site-specific criteria are to be proposed.

(0 For discharges to freshwater, the water flea (Coo iodophnia dabia) reproductive and survival test, and the brook trout (SolvelfahrsAWNaHs), or other saimonid approved by the Department, survival and growth tests must be conducted. For discharges to marine waters, Mysid shrimp (Amielopsis bahia) survived test, and the sea urchin (41thrwiapunctulata) fertili2ation test most be conducted.

(d) Results should be based on measured comentralions.

(e) For heavy metal tests, the metal must be added in the form of inorganic salts of relalively high solubility, such as nilrate salk or in some C.MS', chloride or sulfate salts.

see and (I) Sufficient testing must be conducted to properly ellaracterize sonol Variations be the water quality criteria of concern. Receiving water and effluent sampling must representative of expected conditions and exclude periods of floods, storm events and abnormal operation of the discharge 5ouree.

of (2) Human Hea/ai Cr!feria, Persons requesting site specific crlterk for the protection and human health mist provide information following the general methods considerations speced by USEPA in "Revisions to the Methodology for Deriving Ambient Water Quality Cidteria for the Protection of Human Health (2000), EPA-822- E-00-00=i, 'MEP& Office of ScielliCe and Technology, Washington, D.C., 65 Federal shall consider tlii s Register No. 214, pp. 66443-66482., November 3, 2000. The Board information and information provided by the Department ofHuman Services. lu determining if site specific criteria are appropriate, Ihe Board shall first evaluate Whether

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06-096 DEPARTMENT OF ENVIRONMENTAL PROTECTION

there is an identifiable popui t I on(s) using a .water body whose use(s) is distinct from that of the population considered when emabllshing /he statew Me criteria. If ilus Board identifies such a.population, it shell consider activities or customs IhaJwotjkl constitute a use of the wMer body substantially different in type or citent then that upon which statewide criteria are based. The Board shall consider, among olher thing% ihe foi1owing:

(a) Studies designed and implemented to provide accurate information regarding the fact and extent of speeific burnan activities that create a potential exposen to toxics in the water body, including snail things as the rare of c.onsumption of organISMS., un Of a water body as a drinking iivater supply, recreation ihi and on the water, and other specifie uses of the water body es i ished by local ctiturai or commercial practices;

n ion (b) The imp often ce of urge nism s affected by s toxic subsionce, old g into considera their places in the food chain and the degree to which they are used or consumed by humsns;

(c) Scientific evidence typically relied upon by experl-s in the field of loxicoTogy showing the potenlial effect of a toxic substance in the discharge that is the subject of the licensing, on human heslih, given a particular esiabiished nse ofthe water body; and

(d) Unique characteristics of the water body or organisms depending on it that effect exposure of humans to toxics in the %niter body,

4. Risk levels. For any Ohioan! believed to be carcinogenic, a. risk level that would result, at most, in one additional canoe per one million people (risk of I X 10-5) expo.ed to the carcinogen must he used in determining the human health criterion. No twi: bs tanding the above, the Deparl ment arsenic. shall UI ii i2e a Ia.' risk level when calculating ambient water quality criteria for inorganic

5. The following assumptions luive been used to determine the statewide criteria contained in Appendix A of this nile.

A.• Form of me ta Is, Ail metals criteria must be coMidered as. iota] metal,

as fomit NOTE: Persons may request that the Department express criteria for metals the diaEJlved by submitting the appropriate information to allow recalculation ofrekaille tOXicity using eonversion factors and translator procedums p ulAlshed by EPA: `The Metals Translator: Guidance for Calculating a Total Recoverable PennIt Limit from a Dissolved Criterion", 'EPA 823-B-96-007, USEPA, Office of Water, Washington, DC, Aloe 1996.

B, Ambient-water physical characteristics. Fresh water quality muSt be calculated using a pH Marino water of '2.0, a temperature of 25 degrees Celsius, and a hardness of 20 mg/. wilily 30 must be calculated 11's ing a pH of 8.0, a temperature of 20 degrees Celsius, and a 3alinity of parts per thousand. Estuarine water quality must be calculated using a pH of 8.0, a temperature of 20 degtees Celsius culd a salinity of 20 parts per thousand.

NOTE: These characterimics, however, may vary depending on the location of the discharge. The relative criteria for a pollutant subject to these considerations may be tee Mculated in any given licensing proceed* using the actual. local ambient physical water C.haracterisks, See Chapter 530.

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06-0945 DEPARTMENT OF ENVIRONMENTAL PROTECTION

C. Humcw health assumption., Human bath criteria are determined assuming o onvainption of lire 2 Liteus of wmer and 32.4 grains oforgankm per dry taken from .s rface waters of State health by a person weighing 70 kg. NotwitiBianding the nhove, wheil calculating human criteria. for inorganic ar3enlo, the Deparhnent shall 0itil126 a state-wide consumption value of 138 gains of orgaoisins per day.

ALITHOTUTY: 38 M RSA So c•tloo 341-H, 420, mid LI 64(5) EFFECTIVE DATE: October 9, 2005 Oiling 2005-402, 06-096 Chapter $30, 5 repealed and replaced by this. rile mid Chapter 530) EFFECTIVE DATE: July 29, 2012 filing 2012-211

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EXHIBIT F

CHAPTER 584 Surface Walter Quality Criteria for Toxic Pollutants

BASIS STATEMENT

Maine Iaw 38 M, R, S.A, Section 420.2 requires the Board of Environmental Protection to toxic substances in the surface waters ofthe State pnrsuant to state water quality criteria, regulate Water consisting of levels set forth as federal water quality critelia pursuant to the Federal Clean criteria lbund to be Act or pursuant to adoption of alternative statewide or site-specific protective of the moat sensitive designated use of the 1..vaiet body.

This rule revisesan existing Maine rule (06-096 Cid:R.584, effective date October 9, 2005) with was established in to an o.dgihal effective date of May 17, 1993., The original rule response amendments to the Federal Clean Water Act in 1987 and amendments to 38 MRSA, Section 420 enacted hi 19.91, both ofwhith required Maine to develop comprehensive rules dealing with toxic pollutants in licensed wastewater discharges. The Department established and has of the nile. managed a surface waters taxies control program since the effective date original

Act tti, Review State This ruk revision was initiated pursuant to P.L. 2.0111 0. 194 (LD 515), An WaYer Quolity Siandardt Elt thi5 direction of the Mut Stanching Committee on Environment and Natural Resources, and was further revised based on input recaved (luring a public comment period. This rulc:revision changes the cancer risk level, statewide rot consumption rate, for use in bioconcentration factor, and e.stablishes a percent inorganic factor for inorganic arsenic calculating ambient water quality (human health) criteria. It also establishes Devised inorganic. and. arsenic criteria accordingly. Further, this revision updates Maine's ambient water quality last human health oriteria for pollutants for which USEPA lias updated criteria sir= Maine's revision in 2005, using Maine-specifio parameters where applicable, The Department anticipates that the revised rule will operate succ.essfully within the Department's existing program.

of Pursuant to Maine Law, 38 M.R.S.A., Section 3414-1, the Department Environmental in Protection conducted a public hearing regarding this rale on November 11 2011, Augusta, 2011. Maine, The record for written comments remained open until 5:00 pm on December 1, the rule on The nile was reposted for further public comment on proposed changes to proposed March 14, 2012, The record for written comments remained open until 5:00 pm on of April 131 2012. Pursuant to 38 MR.S.A., Section 341-H(3)(C)1 the Department Environmental Protection provided notice of and, on June 19, 2012, conducted a public meeting on this. rul. for the purpose ofreceiving additional limited public comment Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 88 of 120 PagelD 112

CHAPTER 584 Surface Water Quality Crkeria for Toxic Pollutants

LIST OF COMMENTERS PROVIDING COMMENTS AT THE NOVEMBER 1, 2011 PUBLIC HEARING AND DURING TI-IE NOVEMBER 1, 2011 DECEMBER 1, 201 1 COAvIENT PERIOD

Oral colnrnents at Ike public heating; Cam O'Donnell, Houlton Band of Maliseet Indians B; Bradley I'vloore, City of Bangor Wastewater Treatment Plant

Oral comments at the public hearing and provided written comments: C: David Anderson, Maine Wastewater Control Association Delmis Kearney, FMC Corporation, Rocklaad, ME E: Dr, Rosalind Schoof for FMC Corporation and The Arsenic Legislation Coalition F: Kenneth Gallant, Verso Paper Corporation 0; David tolstridge, City of Rockland Pollution Control Facility NickBennett for Natural Resources Council ofMaine and Maine Rivers Daniel Kusnierz, Penobscot Indian Nfl tion

Written comments; J; Brenda. Commandu, Houlton Band of Maliseet Indians K: Ellen Ebert, Integral Consulting Itic, L: Jay Beaudoin, Woodiand Pulp LLC M: Matth.ew Manahan E.q. for The ABeillic Legislation Coalition N; Stephen Silva, US Environmental Protection Agency, Water Quality Branch

LIST OF COMMENTERS PROVIDING COMMEENTS DURING THE MARCH 14, 2012 APRIL 13, 2012 COMMENT PERIOD

0: Rirsten Hebert, Maine Rural. Water Association Dr. RO8 al ind Schoof for The Arsenic Legislation Coalition Q: David Bolstridge, City of Rockland Pollutim Control Facility

2012 Roponn to Comineuts Page 2 Mey 25,,. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 89 of 120 PagelD 113

CHAPTER 584 seam WatL Quility Criteria for Toxic Pollutants

RESPONSE TO COhMENTS

on the This document notes and responds to all substantive commenls offered initially proposed the fklie by members of the public at the November 1, 2011 public hearing and la writing during initial public comment. period ofNovember 1, 2011 through December 1, 2011 (Section 1), revisions to the Further, this document provides a response to comments received on proposed proposed rule during the second public comment period of March 14, 2012. through April 13, 2012 (Section 2). The letter in parentheses at the end of the comment corresponds to the person as listed above. providing the comment and, if applicable, the organizadon the person represents, the Where appropriee, similar cohainCiltS have been combined. The Department has considered The and full content of all the comments received in formulating its responses, comments of concern responses are arranged by general subject matter to commenters,

1. INITIAL PUBLIC CalkoafE.NT PHR1OD NOVEMBER I, 2011 DECEMBER I, 2011.

A, Genera' Conunents on the Rule role Commenters expressed both general opposition and general support of the proposed and •evisions. The Department is providing summaries of the comments in opposition support, followed by the Deportment's responses below.

Champs MI-Malan Health Criteria for Inorganic Arsenic Comment Opposed:

fm. arsenic Several commenters oppose a chano in the human health criteria inorganic the erit", based on concerns with appropriate proWcaow afforded bY

The HotIlton Band of Maliseet Indians IMMO states that a lack ofrecognition and protection for the fUndamentally important cultural practice of fishing to provide welfare of our tribe. food for a family and conununity threatens the health and ftulemaking which weakens already inadequate standards itarm us even further. The proposed arsenic criterion does not consider other e4osure routes and possible synergistic effects, for example: drinking water well tests over the 10 ug/L drinking in a wmer starom.d, bistorkat use ofpesticides containing arserk Maine, [hail the significantly greater percentage ofsmokers among the Maliseet population genera] population, unknown synergistic effects with mercury found in the Meduxnekettg and other rivers in Maine. CO

in 199912000 and USEPA states that well sampling programs conducted M Maine 2000007 indicate that a significant portion of Maine residents are already exposed in water to elevated arsenic due to high concentrations of arsenic private drinking wells. (N)

25, 2012 Re5onse10 Comments Page 3 May Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 90 of 120 PagelD 114

CHAPTER 534 Surface Water Quality Criteria for Toxic Pollutants

The Penobscot.Indian Nation (PIN) stateS that the existing bnguage in Chapter 534 Or site collie fOr prov ides a procesS fO• establishing alternative statewide sp criteria arsenic and other pollutants. However, the rule language state-9 that "the aitovalive statewide criteria must be as protective as EPA's water Twill), criteria. igveh criteria milst also be protective ofthe mot sensitive designated and existing nses of the water bodjr,, including; bat not limited to habitatforfish and other aquatic life, human consumption offish and drinking water supply afier treatment." We contend that the most sensitive designated and existing uses of the Penobscot River include consurhPtion offish and other aquatic resources for sustenance purposes, 0 criteria. use that is not protected by the proposed change tz tile arsenic (1)

PIN further states that while meeting arsenic criteria may he a problem for some dischargers with arsenic sum e water issues, many dischargers do not have this problem. The changes to this rule seek to relax arsenic criteria state-wide. By using thiS blanket state-wide approach to address arsenic, IVIEDEP would be allowing for a relaxation ofarsenic criteria in waters that are aiready rneethig Otlrrellt criteria, This criteria relaxation goes against the premise ofanti-backsliding and anti-degradation requirements that waters should be getting cleaner and not becoming more polluted. (1)

USEPA states that Maine's proposed arsenic human health criteria revision is hosed in water on a change to the cancer risk factor used calculating the arsenic quality criteria established to protect human health, Maine's current cancer risk actor for establishing arsenie criteria is one ca e per one million people (10E-6). The proposed cancer risk factor for es NI Wishing arsenic criteria is one. case per ten thousand people (10E-4). The. other terms used by Maine in calculating the water quality criteria for arsenic, Including those used to estimate bioconcentlation of arsenic in fish and the rate of fish consumption (FOR), remain unchanged. USEPA has been asked to address whether the proposed revised human health criteria for nrsenic (catoulated using a 32.4 gratnqday statewide fish consumption rate) are sufficient to ensure that sensitive subpopulations will not be. exposed to a c.aneer risk from arsenic exposure greater than one case per ten thousand people (10E-4). MEDEP's justification included the existing provision in 06-096 CMR 584 that allows the establishment of more stringent criteria upon a demonsiration that they are appropriate• (N) of USEPA states that the iule revisions as proposed would not be adequately proteotiv sensitive subpoputations. Further details on USEPA's review and determination as well as the Department's response are included below.

Chru in Human Health Criterl, for Inor!ani Arsenic. 2, Comment; Suppoit

for arsenie based on Several commenters support a change in the human health criteria and the belief that the the expense involved in meeting the existing criteria-based limits existing limits am unnecessarily stringent,

25, 2012. Response to Comments Page 4 May Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 91 of 120 PagelD 115

CHAPTER. 84 Su& ce Water Quality Criteria for Toxic Pollutants

The Maine Wastewater Control Association (MWWCA) stat•s, in order to ensure POTW that wastewater discharges are clean enough for the receiving water, each. (Publicly Owned,Treatment Works) has a discharge permit issued by the DEP. A low that few years ago Me water irinaRty criteria for arsenic were, revised so many rorvn could not nieet the limits, Many of the discharge limits w•re below the repotting level of the arsenic method, meaning that they were being regulated on the -something you cmet. measure. Many industries found they could not meet calculated arsenic limits for local industries through the pretreatment program that lower than the are based OD a water quality criterion more than a thousand times drinking Miff limirS, Removing arsenic to sub part per billion levels would require can't the rule as very iii.cpensive changes to our processes. If klEDEP adopt in proposed, MWWCA urges a falter examination ofall the factors involved calculating the water quality criteria, including the cancer slope factor, hioconcentration factor, and the organiciinorganic ratio. (C)

The FMC Rockland plant is the world's largest facility processing seaweed to used in extract various grades of cacrageenan, an important natural ingredient food, in phamutceutical and personal care products. Low levels of arsenic naturally occur in so all staweeds, just as it occurs in the soils, ground and surface waters Maine, The FMC Rockland that it is present in very small quantities in our discharge. affect plant. has incurred numerous unanticipated operating costs which significantly Costs related to new water CRIr ability to compete with overseas producers. filtration and new systems for solid waste management have added millions to our annual operating costs. If the current criteria continue, FMC would be faced with This is having to invest several million additional dollars in treatment technology. disturbing not just because there appears to be no dear scientific or health-based rationale for these criteria but also because ofthe severe competitive impacts it. will threatens the have on FMC's Rockland operation; The current arsenic rule severely to human long-term viability of our Rockland plant and has no demonstrable benefit boalth or the environment. FMC urga the Department to revise the inorganic and the arsenic water quality criteria in a manner protective of public heeilth envhonrnent, and consistent with that of many other states. (D)

The City of Rockland Pollution Control Facility treats wastewater from seafood and arsenic, If Rockland is seaweed processors contahiing natural, moskiy organic seafood and unable to maintain compliance with its effluent limitations, th.ese at considerable seiweed processors would be required tin pretreat for arsenic with overseas expense, putting these businesses at an economic disadvantage states have competitors and other processors who do not _have arsenic limits, Ma»y mach higher arsenic standards thaii proposed hy Maine DEP. Many,have adopted the 10 uget drinking water standard and six states utilize, the old drinking water standard of 50 ug/L. Therefore, even with tile change in criteria proposed, Maine would still have one of the more stringent arsenic AWQs in the nation. (G)

25, 2012 Response to Comments Pogo 5 May Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 92 of 120 PagelD 116

CHAPTER 584 Surface Water Quality Criteria for Toxic FollutWS

The City of Bangor Wastewater Treatment Plant has frustration and a concern with the current Inorganic arsenic limit, There is El possibility that we could be moved through the indusirial pretreatment. program to regulate the water supply. When soluid science stipports an increase in allowable concentrations, we are in support of that change (risk factors). (I3)

Verso Paper Corp, supports the revisions to Maine's Ambient Water Quality Criteria for inorganic arsenic as proposed in Chapter 584. Verso is particularly interested in the setting of new freshwater and saltwater criteria for ursenic based on a risk level of 10E-4 resulting in water quality criteria of 1.2. ppb (parts per billion) and 2.8 ppb respectively. The current 10E-6 risk factor results in freshwaterquality criteria of 0.012. ppb. Arsenic is naturally occurring and is found in the bedrock of Maine. As a result, it OCctits iii Maine's surface and ground waters. Arsenic is also found in many of the raw materials utilized in the paper-makhig process such as wood fibers, clays and fillers, Dischargers have little or no control of the amount of arsenic in their effluent. There is little or no predictability in what any particular test result might be nor is there any practical treatment technology to employ to reduce this discharge of arsenic. If ihe Maine DEP does not revise dte current Inorganic Arsenic Criteria, industrial and municipal hicilities that have never been ihi noncompliance before will be found to he oat of compliance with little or no effective means te meet compliance. (F)

The Woodland Pulp LLC Mill is currently facing a proposed arsenic. limit of 0.35 ppb, an amount significantly below the Department's Reporting limit (RL) of 5 pph. This limit, which is based on inorganic arsenic for which no approved method currently exists, would be suspended until USEPA approves a method for distinguishing between organic arid inorganic arsenic. In other words, the mill would be forced. to operate under and comply with theoretical limits that are uncerta hi, This levelh08 been set in order to comply with the current risk levels for carcinogenic pollutants in Chapter 534, including arsenic. It is difficult. and expensive to track arsenic at. levels this far below the minimum detection limit. (1.,

Woodirmd Pulp LLC further states, arsenic is generally ubiquitous in the environment, found in soli, wood, lime, water and other materials, Though the mill does not add arsenic in its processing functions, small amounts exist in the min wastewater stream. Unlike manufacturing facilities with effluent limits for pollutants that are added to the manufacturing process and thus can be controlled by the license; levels of mill arsenic discharges are largely governed by the amounts of arsenic found naturally in the raw materials we use, including the background levels of arsenic found in the St, Croix River, where the mill draws its process water. The proposed revision to Chapter 584 will address these concerns hy setcing a 10E-4 risk factor for inorganic arsenic that is protective ofhuman health without imposing Uncertain, expensive and unnecessary financial burdens on dischargers. It will achieve protecting the environment and protecting job and =mon* development by imposing limits on arsenic diseharges at levels that can be supported by the science. (L)

Response to Comments Pvge 6 Mity 25, 2032 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 93 of 120 PagelD 117

CHAPTER 534 Surface Water Quality Criteria for Toxic Pollutants

Respons• to Comments Wl and in

Valid comments have been Deceived both in opposition and in support ofthe proposed laws and changes to Maine's inorganic arsenic human health criteria. Maine's water quality of our ambient water quality criteda (AWQC) are designed to ensure protection aquatic resources, aquatic lif•, and human health through attainment of water quality standards including site specific classification standards. Maine takes this responsibility very. seriously. The revisions proposed to Maine's Surface Water Qualityfor Toxic Pollutants (06-096 CMR Slate Water 584) were initiated pursuant E0 P.L. 2.011, c.194, An Act to Review QuctW &ma'am's (codified at 38 M.R, SA, 420(2)R, and at the direction of the Maine Legislature's Joint Standing Committee on Environment and Natural Resources. Consistent with PI, 2011, e.194, the proposed revisions change the cancer risk level for inorganic arsenic used in calculating Ambient Water Quality Human Health Criteria and revise the inorganic arsenic criteria accordingly. This action was taken with the intent of implementing the revisions required by P,L. 2011, o.1941 consistent with Maine's water quality laws aud sed the goais, in a Trimmer approvable by USEPA. Additional revisions were propo, by since Department (MEDEP) to incorporate necessary changes in criteria fr:Pr other pollutants Maine's last rule revision in 2005.

review Baged on the comments received in the first public comment period and a of methodologies used for establishing inorganic. arsenic, criteria in other states and USEPA regions, the Department proposed and sought comment on revised human health criteria, The revised AWQC aA) were developed based on analysis and revisions of several of Cie factors used in calculating AWQC. This involves such factors as the hio conc entra t ion factor, fish consumption rate, and percentage ofinorganic arsenic, and is described in detail. in Section 1.E of this document, The Department undertook. this wider revision process in to the initial rule. response to comments received, both in opposition and support proposed Those comments that represent reoccurring themes, such as cultural practices, sustenance fishing, and cumulative effeets, are addressed in greater detail in subsequent sections of this document.

The Department tbeori2cs that the commenter's concerns with anti-backsliding and anti- degradatio» provisions of Maine law (38 M.R.S,A,, Section 464.4,F) were likely related to a The ta neer risk level of 10E4 gad a statewide fish consumption lute of 32.4 giday. Department maintains that the revised criteria developed from a more complete review of underlying factors will better elnow the Department to meet the requirements of Maine law (38 M.R.S.A., Section 464.4.F( l)); "existing in-stream vater uses and the kvel ofwater rises be inaintaned and qruiiv necassaty protea those e„icisting nnfsi protected."

AWQC and Drinking Water Standards (DWS) are often compared, but differences in the calculation methods and application of these standards shouki be noted. AWQC are established pursuant to the goals described above: protection of aquatic resources, aquatic life, and human health-through attainment ofwater quality standards including site specific classification standards, The Human Health. AWQC calculation uses poilutant-specific water values for cancer risk level, cancer potency factor, subject body weight and

2012 Response to Comments Pagc 7 Mu 25, Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 94 of 120 PagelD 118

CHAPTER 534 &thee Water Quality Criteria for Toxic Pollutants

consumption, bioconceittration factor, and fish consumption rate, Human Health A,WQC for water and organisms considers two routes of exposure; drinking of water and eating Of 1 o•ganisms. The acceptable cancer risk level specified in Maine rule has been 1 case per million people (10E-6), however USEPA Fillows for rates between 10E-6 and 1. case per 10,000 people (10B-4) if sensitive suhpopulations are protected to at least 10E-4. The Human Health AWQC are developed pursuant to the US Clean Water Act. (CWA) regardless of cost or technical difficulty in achieving them, 'WS are developed pursuant to the US Safe Drinking Water Act and utilize the anticipated cost. of compliance using avai/abk treatment technology in the calculations, equat lug to cancer risk levels of 1 case per 1,000 people (10&3). DWS consider one route of exposure: drinking of water. For some states, of 10 USEPA has approved use of the previous national DWS of 50 ugif, or current °WS done where it ug/L, as their AWQC (IA). However, USEPA indicates that this has only been represents those states' mos t stringent criteria to date anti. that they are not considered necessarily protective of human health. Unfortunately} there is no consistency in the AWQC (IA) approved by USEPA across the country, Both the Human Health AWQC and DWS risks are utilize an underlying factor ofrisk to the population, but their respective acceptable different,

B. Section 4. R k levelsand appendix A. Table 1: Critwinfor Priori°, Polherant Ilstedpasuaht to 304(a) ofift Glean Wafer Act and Foo1noies t. T 1.

Numerous commenters pl'ov ldeci comments regarding the propood change in tile arsenic cancer risk factor from one case per one million (10E-6) to once case per ten thousand (10E-4) and in the resulting changes in m.senic human haltli criteria for consumption of water arid organisms from 0.01.2 uga, to 1,2 ug/1_, and in conmimption oforganisms only both from 0.028 uga. to 2.8 it giL. As the former results in the. latter, comments received in opposition and support tended to combine these proposed changes_ As there were no comments received regarding proposed changes to any other pollutant listed in Appendix A, Table 1, comments involving these Iwo areas are included together.

Secticai 4: Risk ky0s,

Change in Qancer Risk Level for 1norvanic Arsenlo 3. Comtnot: Opposed:

risk level Several commenters oppose the proposed change allowing the use of a (10E-4) to calculate human Ilea WI criteria for arsenic.

NRCM and Maine Rivers suite that arsenic is one. ofvery few known human carcinogens. This proposal will potentially allow 100 tunes more arsenic into Maine's aquatic environment. (H)

2012 Resvonso bo Comments Pag6 8 May 25, Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 95 of 120 PagelD 119

CHAPTER. 584 Surface Water Quality Criteria for Toxic Pollutants

The FIBM1 state that the initial changes proposed to Chapter 584 will increase cancer cancer risk risk for our tiThal membership. 0) These changes propose weakening the leve] from one in one million to one in 10, 000 which does not adequately protect general populations and, in paiticular, sensitive populations such as the Mal iseets and other Maine tribes that practice sustenance fishing. (A) Combining a weakened ctmcer-risk level with an already inadequate fish consumption rate to establish an arsenic water quality criterion will riot protect the subsistence lifeways that embody our culture and traditions. (J) Traditional uses have been modeled by Wabanaki Traditional Cultural Lifeways Exposure Pathway Scenario. The proposed rule changes do not take into consideration other arsenic exposure pathways from drinking and cooking with groundwater resources. The health issues that our tribal members like and face are increasing in part due to the lack. of available clean resoUrces water traditional foods. Tribal culture subsisted for thousands of years living on the food for and water provided by the land and those are the resources that we need to protect the health, safety wid wellbeing of the next generations and for today, (A)

Several commenters observed-that while USE.PA'a ambient water quality minus four methodology does provide a range of cancer lisk levels front ten to the a level that to ten to the minus six (1), criteria for c.arcinogens should not be set at would result in a cancer risk level greater than 10E-4 for sensitive subpopulations. (Methodology for Deriving Ambient Water Quality Criteria for the Protection. of Human ReEillth (2000) EPA-822-B-00-004). (1)(J)(N)

The Plil states that under Maine DEP's proposal, tribal people carrying out sustenance fishing practices would be exposed to cancer risks that would exceed 10E-4. USEPA is methodology Indicates that a more protective risk level should be chosen. It. fish important for Maine DEP to understand that for populations of people that eat more than the general population, such as Penobscot tribal members with sustenance fishing 10E-4 level, rights, you are increasing their cancer risk beyond the (I)

USEPA states that while MAne's criteria are derived based on a nominal cancer risk factor of 10E-4, USEPA must consider afresh the appropriateness of the other the terms Maine used (in concert with this new risk factor) to calculate proposed criteria arsenic criteria, in order to a ddren Maine's question whether the proposed This is in fact provide a 10E-4 level of protection to sensitive subpopuiationsr because Maine's new cancer risk factor ellinthates a 100-fbld factor of conservatism that previously existed when USEPA approved the now-current criteria. (N)

USEPA fbrther states that MEDEP has indicated "in the event that sensitive subpopulations andior Maine itselfw Oh to pursue establishing even more the protective standardsfor spec& waters, additionalprotection isprovided in existing nirk (06-096 GUR 584), Section 3, B(2) through the abilityforparties to with the request 6mb/is/intent ofsite specific hurnan health criteria". 'However, existing fish consumption nte of 32.4 grams/day and the proposed new Cancer risk. fict.Cdr, USEPA does not agree that Wines site-specific revision process can separately address 1JSEPA's concerns. Such air approach would transform Malues

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initial burden (to establish (hat revised wate• quality criteria are sufficient to "protect the designated water uses, 40 CFR 131.5(a)(2)) into a public burden to submit data and other information to the State demonstrating that more stringent site-specific criteria are warranted. Furthermore, USEPA notes that under Chapter 584 such site-specific criteria could only be developed Ns part of a waste discharge license proceeding." Focusing on site-specific criteria only in connection with a particular permit has the potential. to deprive the State ofopportunities to evaluate criteria in a more comprehensive way across a water body. The current structure also inevitably ties the deliberation of a site-specific criterion to the potential timing demands of a particular permit transaction, possibly depriving the State of the opporiunity to consider fully the broader issues raised when evaluating whether to adopt a nevi criterion. (N)

USEPA states that Maine has not demonstrated that its initial proposal to revise statewide arsenic criteria will be protective of sensitive .subpopulations to nO greater than a 10E-4 cancer risk level. In deriving the proposed criteria, Maine failed to consider adequately the exposure to arsenic of subsistence fishers that are members of !he Maine Indian Tribes, the Penobscot nation and Passamaquoddy Tribe In particular. (14)

Seveml•cornmenters VW that new scientific evidence indicates that arsenic is a more potent carcinogen than was previously understood (MN). USEPA states that current national recommended water quality criteria and the current-USEPA IRIS risk cancer slope factor (as ofNovember 2011) are based on studies which indicated of skin cancer due to exposure to arsenic. Newer studies, however, indicate that arsenic exposure also results in internai cancers such as bladder and lung cericer. The National Research Council and the. USEPA Science Advisory Board provided advice on the assessment of risks of inorganic arsenic recommending that, the risk of arsenic induced Internal cancers be included In evaluating the health effects of arsenic, but it has not yet been finalized by the Agency. (N) NRCIvI and Maine Rivers 00, OS a result, USE.PA is currently considering increasing the arsenic cancer slope factor up to 25 times. Thus, it makes no sens• at a time when USEPA is recognizing an increased threat from arsenic that NIEDEP is proposing to allow substantially more of it into our aquatic environment. (1-1)

NRCM and Maine Rivers further state, USEFA's pretreatment process Is supposed to necessitate POTW operators to check their inputs for toxic contaminants and then require that the contaminants be dealt with if they are detected. Further, Chapter 530 allows the flexibility to set site specific criteria for individual dischargers with high arsenic inputs from a drinking water utility in their system through a Use Attainability Analysis (HAM, We do not believe it is a ccqtable to simply relax standards so that P0TW5 do not need to perlbrm their pretreatment function or that It is necessary to do so for the entire state so that. the minority offacilities that. have arsenic problems do not have to perform a ILIA A or petition for a site speciEc criterion. (14)

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USE0A recommends that Maine DEP proposes statewide arsenic criteria that MEDEP can demonstrate are protective of the general population as well a8 WISitive subpoputations in Maine, notably the Maine Indian Tribessubsistence fishers. Such criteria should he derived from scientifically sound values for the different variables that comprise the calculation ofthe criteria including, but not limited to, a supportable FCR.

$ection 4: Afsk /eve/s,

Change in Cancer Risk Level for Inorganic Arsenic 4. Comment: Support:

Other commenters expressed support for the proposed revision to the cancer risk ievei,

Mir Corporation and the Arsenic Legislation Coalition (ALC) state that inorganic arsenic is na rurally present throughout our environment. in areas of the world where very high concentrations ofarsenie are found hi drinking MItei., arsenic has been shown to cause increases in some cancers; however, while USEPA regulates arsenic. AS though risks are present at low levels, no increased risk has been observed for the normal _range of arsenic in food and water in the United States. Maine's current AWQC (IA) of 0.012 ugiL for water plus organisms (e.g., fish) and. 0.028 kV— for organisms only are even lower (more stringent) than the USEPA AWQC (IA), The USEPA methodology for dedving Human Health AWQC allows AWQC to be based on theoottical incremental risks ranging lioni 10E-6 or, one in ei million, to 10B-41 or one in 10,000. These are only theoretical risks, not actual risks. The proposed change in the theoretical risk level for the arsenic AWQ.0 is unlikely to result in any increase In actual health risks to any Maine. resident. The primary reason is that the natural arsenic concentrations in surface waters are similar to the concentrations of the proposed AWQC (IA) with a median As concentration in US rivers of 1 riglL and a 75th percentile of 3 ug/L. Consequently, the proposed arsenic AWQC of L2 ugfi, for water and organisms will have little or no likelihood of increasing naturEd water concentrations In rivers. The proposed AWQC (IA) of 2, 8 ugiL for organisms only will be applied primarily to non- potable waters such as estuarine and marine waters. Arsenic concentrations in coastal waters and estuaries are higher on average than concentrations in freshwater, and are generally lathe range of 1-3 ug/L., so the AWQC (1A) for organisms only will not thsnge Arsenic concentrations in estuaries and coastal waters. There is no human health benefit of setting AWQC (lik) to levels below the proposed criteria because naturally-occurring background levels are in this range.. As long as natural levels do not change, people will not have increased expQsure tO arsenic and, therefore, will not have increased risk. (-E)

MCC Corporation and the ALC further state, the proposed Chapel' 584 inorganic arsenic criteria are proteCtive of human heakh and sre more stringent than criteria approved by most other st4tes. The eriterifi are aso consistent with MEM methodologies and guidelines for developing human health criteria and, as long as

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there are 110 Inc res e.s above natural levels, win not lead to increased exposure to arsenic for Maine residents, Even huge fish consumers will be protected because the arsenic concentrations irk fish will not change. Despite the nominal increase of the theoretical ccirmer risk. level to 10E-4, the actkml incremental risk will be far lower, and most likely will be negligible. (E)

Verso Paper Corporation states that an inorganic arsenic WQO risk factor 10E-4 is based on sound science and remains protective of the environment while allowing dischargers who in reality have no control over the discharge of ai.senic to remain in compliance, Current levels of arsenic found in many ofMaine's public and private drinking water supplies exceed even the new ambient water qualitylimits proposed in Chapter 334 based on the 10E-4 r isk. factor and a resulting water quality criteria of I .2 ppb. Put simply, the proposed vrater quality criteria in Chapter 534 are still far more stringent than Mai De' s drinkhig water standards for the protection of human health. Passing Ch 584 as proposed will not re-suit in an increase in arsenic disdkarged and it will not have a negative impact on the environment. The science shows that the new inorganic arsenic criteria will be potective ofaquatic, and. human life and will not needlessly put many industrial and municipal dischargers in an out-of-compliance situdion with little or no means ofcontrol. (F)

ilesponse to CornmentsyLand

USEPA's Methology for De•iving Ambient Water Quality teri a for the Protection of Human Health (2000)(EPA•822-B-00-004), (USEPA's AWQC Methodology) Section 2., 4 indicates, "EPA believes that both 10(e-6) and,10(e-5)may be aceeplabkfor the general population and that highly exposedpopidatious should not exceed a 10(, e.-4)rtsk "EPA underskm& thatfish cons-umption rates vary considerably, especialiy among subsistence populations. and it is such great variation among these population groups that may make either 10(0-6) or 10(-5)protective ofthose groups at a 10(e,-4)risk level, "Such determinaiions should be made by the Stafe or n'fbal authorities and (lot subject ta EPA's review and approval or disapproval imder Seetion 30.3(e) aphe CE4, (0 ensure that the criteria are "adepolayprofecOve or the most highb., exposed subpapulation, USEPA allows for rates between 10E-6, and 10E-4 if sensitive subpopulations are adequately protected. The revision in cancer risk level from 10E-6 to 10E-4 is in response to P.L, 2011, 0.194, An Act to Reviely State Water Quality Standards (codified at 38 M,R.S.A. g 420(2)(i)). Ills Maine's intention that AWQC. (IA) be protective ofall consumers, including highly exposed populations. As noted above, based on comments received on [he initial. proposed rule, the Department proposed r•vised human health criteria based on revisions to several of the factors Used in calculating AWQC. The Department has reviewed each ofthe appropriate factors involved and provides details on [he revised criteria at Section 1.E of this document.

The Department theorizes that USEPA's concerns with Maine's process for establishing slte- specific human beEkith criteria were likely greater when considering a cancer risk level of 10E-4 and a statewide ri,gh consumption rate. of32, 4 giday, and that these concerns are likely lessened with the •evised criteria. Even with revised criteria deve.loped flom a more. complete revieW of underlying factors, the Department maintains that in the event that

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sensitive subpopulations and/or Maine itself wish to pursue establishingtven more protective standards for specifin waters. Additioaal protection is provided in the existing rule (06-096 CUR 534), Section 3.B 'through the ability to request •stablishment of slte specific criteria, If the Board ofEnvironmental Protection determines "there is on identljkible population(s) using a water body whoye lise(s) Ir distinctfrom•that ofthe population considered when El establiAing the .1`otewide criteria" lt shall consider activities or customs thativould constitute a use oldie water body substanttally different in 0.Jpe or extent than that upon -which statewide critena are based." Section 3.13(2). Concerns have been expressed regarding the requirement that site specific criteria must be adopted as part of a waste discharge license proceeding, However, "where the Departinentfin& a rapedfor ske- wed* criteria may (erect other sources discharging to the anne waterway, le may, pursuant to 38 Ail?.84, Section 414-A(5)(A), ropenfor inodffication those licenssfor consideration in the same proceeding" Section 3.B. As noted in the Response to Comments for the 2005 revisions on Chapter 5S4 on this very topic, "this -will allow one presentation ofihefacts, paineipation by allpartks, and consistent licenses", thus ensuring an appropria[e approach to this. issu.

Appendix A, Table 1: Criteria for P Lodtp P etant fisted ui.suant to 304(a) of 1 e Clean Water Act and Footnotes to Tabk 1,

Fish Com umpt Lori Sustenance Rights 5, Comment: Opposed:

Numerous commenters piovided comments regarding the appropriateness of the fish consumption rate used by the .Department, the study from which data was o b hied (ChemRisk (1992), Ebert et aI (1993)), and the .16vtie of sustenance eighU for Nativ Americans,

The following comments were provided by the FIN and the FIBMI;

To use a 10E-4 risk level for cEilculating the AWQC for inorganic arsenic and the 32,4 gram per day fish consumption rate used by Maine DEP for the arsenic criteria would result in an ambient water quality and human health criteria for inorganic arsenic criteria of 1.2 ueL, which would not adequately protect the health of Penobscot tribal members. The Penobscot Nation has legally protected sustenance fishing rights within their re-ser vat ion waters which would be affected by this rule. The changes to this rule would prevent tribal members from being able to fully exercise these sustenahee rights mid would put our peoples health at risk. (1) The "Wabanaki Traditional Cultural Lifeways Exposure Pathway Scenado" reflects a Wabanaki subsistence exposure pathway via fish consumption es 286 514 grams per day, a far cry from the state's fish consumption rate of 32.4 ku.ams per day OM.

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Maine DEP commonly refbrs to consumption rates from the 1992 ChemRisk study as evidence that the 32.A grams per day rate it Imes is protective of Maine tribes. However, we believe the study is flawed and does not accurately reflect consumption rates of Penobscot or other tribal people. M(J) Clearly Penobscot people would. be exposed to much higher and unacceptable risk levels when consuming fish at sustenance levels, (I) The ChemRisk study was initiated after fish consumption guidelines were already in place, thus potentially characterizing fish consumption that is hlhibited or suppressed by toxic exposure concerns (1)(J) when people were being warned Eianst eating fish from Maine rivers, including the Polobscot. The surveys for the. study were done in 1990. Maine Bureau of Health and ME DEP first issued consumption advisories in 1987 for the Penobscot, and then Issued more restrictive advisories in 1990, (I)

The size sample of 43 Native Americans anglers Is too IOW to Enke any statistically valid conclusions regarding fish consumption in this population. (J) Because (be ChemRisk study only surveyed people that held a 1989 Maine resident fishing license it likely did not semplePenobscct sustenance fisherman (I) or Mascot -tribal members who obtain their ]leenses from tribal governments (J). Penobscot tribal members get sustenance fishhig licenses directly from the tribe and are not required to get Maine recreational fish in licenses to tribal waters, including the Penobscot River. Likewise, it is ou• experience that tribal people who carry oat snbsistence lifestyles are not likely to be "captured" in mail or telephone surveys. We believe that the COIISIliiipdoll rates 1-`rom the Wabanaki Exposure Scenario Study more accurately reflect sustenance fishing practkes mid demonstrate the inadequate proteotion offered by the proposed rule changes. (I)

USEPA provided the following comments:

USEPA believes that. Maine's reliance solely on tite ChemRisk survey ofrecreational anglers in Maine in the 1989-1990 fishing season is notjustified in determinhig an adequate levei of protection for the Maine Indian Tribes, First, the ChemRisk study involved a survey of recreational anglers only, and did not. consider fish consumption by persons who take fish for their individual sustenance, e.g. members of the Maine Indian Tribes. The CbetnRisk study was based on a survey of anglers who were requited to obtain recreational fishing licenses float the State ofMaine, However, the Maine Indian Tribes have asserted to USEPA during consultation that members of the Penobscot Nation and the Passamaquoddy Tribe are not nequired to obtain such licenses under state law. By definition, therefor% members of the PenobscotNation and the Passamaquoddy Tribe were not included in the population surveyed. MEDEP has indicated to USEPA that some "anglers of Native American heritage who fish for recreational purposes and who are required to obtain a fishing license. from the State were surveyed by Chernkisk; however, that hot does not address or cure USEPA's concerns because there is no indication the suivey assessed. subsistence tribal consumers. Thus, USEPA concludes that Maine is not in possession ofadequate local or specific data that would support use of a FCR of 32.4 gramsklay, in combination with a cancer tisk factor of 10E-4, as part of the determination of an adequate level of protec don for the Maine Indian Tribes* subsistence. fishing use. (N)

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Maine USEPA Wks that the Maine Implementing Act, as ratified by the federal Indian Claims Settlement Ac(, specifically recognizes the reserved right of the Penobscot Nation and Passamaquoddy Tribe to take fish within the boundaries of their Indian reservations for their individual sustenanoe. There may also be other determine iribal uses that medt specific examination or fuuli•f documentation to distinct from whether there k an identifiable population that is making a use of waters that of the general population. Fo• exai»p1o, the Tribes and other subpopulations may of the tiThal engage in fishing for the sustenance in waters outside the boundaries reservations. (N)

that For use in these revised criteria, EPA does not believe Maine has adequately reflects Maine demonstrated that a statewide Felt of 32.4 grams/day accurately the Indian Tribesrate of fish consumption. In particular, EPA. does not believe that Maine has adequately demonstrated how this FOR would protect the Maine Indian of the Penobscot Tribes' unique uses of the. waters in the State, espeCially the right Nation and the Passamaquoddy Tribe to take fish for thek individual sustenance. (N)

0 A tendix A Table 1: Cr0- r Priori Pollutant fisted iursuant t. a a the Clean Water Ad and FDafrioieS to TaNe L

Fith Consumption Sustenfincts 6, Comment.: Support:

ofthe ChemRisk The following comments were provided by the principal author (1992) and Ebert et al (1993) reports.

The. 32.4 glday fish consumption rate that forms -the basis for Maine's current WQC fish is based on the assumption that one-half pound (227 g) of reoreationally caught. The obtained from Maine waters may be consumed weekly throughout the year. ChernRisk and MRS (1992) findings are directly relevant to the selection of an appropriate fish eonsumption rate for nilemaking. The USEPA has established a methodology for states and tribes to develop ambient water quality criteria (USEPA. 2000). This methodology recommends the following hierarohy for selecting fish I. site- consumption rates (FORs) to be used in the following order()f preference: of the speci fie FOR that. repres ena at least the central tendency. population stayeyed fish intake that (either sport or subsistence or both); 2. reports from existing surveys reflect similar geography and population groups (i.e. from neighboring StMe or from national Tribe or a similar watershed type); 3. use intake rate assumptions for the adult food consumption surveys; 4. USEPA's defaults of 17.5 glday general population and sport fishers, and 142.4 giday for subsistence fishers. (K)

l oriteria USEPA (2000) uses the default rate of 17.5 g/diq ill its nationa 304(a) derivations. It has been chosen to be protective of the majority of the general population. In addition, USEPA states that it"has provided default vahlesfor States and authorized 7)1bes that do NOi have adequate Wormation on local Or iegional consumption patterns, based on numerous girdles that EPA has reviewed

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USEPA's allows on spoiq angf6rs (Ind siobstslence fishem" While methodology substantial flexibility in the development of state-specific oe waterbody-specifIc WQC, it is clear that protection ofevery potentially exposed individual is not its goal. Instead, the methodology strives to protect average consumption among all potentia Ily exposed populations, including higher consuming suhpopuiations. (K)

USEPA's preferred methodology for selecting fish oonsumption rates is the use of State-specifie data where available. Such data are available in Maine for the general angler population and also for various, potentially sensitive ethnic subpopulations in the state. A one-year state-wide survey of licensed Maine recreational angler's was conducted in 1991 (ChernRisk 1992; Ebert et a11 1993). who Those survey data indicated that 95 percent of the Maine angfers stliwyed consumed sport-caught fish obtained through both open-water and ice-fishhtg in Maine, consumed a total of 26 giday or less. At the time the survey was conducted, 200 miles of the more than there were fish consumption Advisories present Oa only 37,000 miles of rivers, streams and brooks in the state, and there were no advisories a Maine present on any ofMaine's roughly 2,500 lakes and ponds. As result, anglers had the ability to fish from a nearly unlimited number of non-advlsory Maine waterbociies during that time period. (K)

also Fish consumption rates for a number of identified subpopulations were estimated based on those survey data. The group with the hig4st consumption A total rates was those individuals who identified themselves as 'Wive Americans, of 148 Native Americans were included in the surveyed population (11 percent of the population who participated) and 96 of those individuals reported consuming freshwater fish that bad been sport-caught, While the median consumption rate (506 percentile) of 2.3 g/day for this subpopulation was similar To other groups of 6,4 evaluated, the arithmetic mean of 10 glday was higher than the average &ay for the total population, and the 95`h percentile of 51 g/day (since conected to 95IF' 60 g/day based on a revision of sample size) was nearly double the pereentile for the total angler population (ChernRisk and HBRS 1992). These data indicated wa$ that there was a portion of the Native American population that on avexaM consuming fish at higher rates than the genera) anglerpopulation. However, only six percent of the 96 Native Americans who consumed fish consumed at Iltos the higher than the 32.4 giday upon which the current WQC Is based. In addition, maximum rate reported by this subpopulation (162 Oda y) was lower than the maximum. consumption Mc of 182 giday reported for the entire population than 'surveyed. Thus, white the average Native American angler consumed more the a-verage recreational angler, the consumption rates for the very highest consumers were similar to those for the popolatioa at huge. (K)

QueA ions regarding potential fish consumption ofNative American tribal members have arise; In part, from the reported results of a dietary reconstruction study conducted by Harper and Ranco (2009). These authors estimated historical tribes consumption rates between 286 Ancl 51.4 orday for Maine's Native American hiformation about based on assumptions about caloric intake and literature-based

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arid 19th the histodeal dietary Facticas ofNative Americans in the 16th, 17h, 18th, ce.nturies, The stated intent of that report was to reflect the historical patterns of individuals fully rising their naturai resources, And the report asserted diet individuals could. not return to these patterns hec a US e of present-clay env irorunental contamination conditions but that they would return to this behavior "once is protective standards are in place." This report implies that impaired water quality the reason that individuals do not. currently consume fish at the historically higher rates, and that a substantial number ofthem would return to those historically higher coanmptiort rates if water 4nality was improved. However, neither assertion is likely to be true. (K)

in a All individuals who lived in ivfaine in the le, I7'h, 18th and 19th centuries lived subsistence manner. Thus, this behavior was not limited to the tribes, Hunting, feed fishing, farining and trading were the only way that individuals could Due to the current themselves as there were no widely available commercial foods, commercial availability afresh} frozen and prepare.d foods in stores and this is no restaurants, and public assistance for low income persons, lifestyle longer necessary for sivival in Maine. (1C)

were limited to At. the time that the Maine angler survey was conducted, advisories there were. no specific main stem reaches offour warmwater rivers in the State but had a vast number and advisories on any other waterbodies, Thus, Maine anglers variety of non-advisory fishing resources available a t that time. Despite this, only who in the aotmlly 65 pvc .1.3t of the iicensed Native Americans participated survey consumed sport-caught fish. This percentage was lower than the 77 percent of the even when total angler population surveyed that. consumed sport-caught fish. Thus, Americans included nearly unlimited esouroes were available, none ofthe Native and Ranco in the survey consumed at the levels asserted by the Harper study. (K)

number All of the available data indicate that it is highly unlikely that a substantial behaviors -that of Native Americans in Maine would return to historical subsistence returned to a occurred prior to the 20th century even if Maine waterbodies were wide pristine condition, This is largely due to the commereial availability of a bodies variety of market-based foods. In fact, when nearly all ofMaine's water visorie-s at the time the Maine were viewed as pristine, due to the lack of ad angler was not exhibited. It is recommended survey was conducted3 this type ofbehavior basis for the that the current. fish inges than rate of 32, 4 giday be retained as the of the total Wpc for arsenic. This rate is protective of more than 95 percent angler population in Maine and is protective of94% ofthe Native American angler first tier in the state. It is based on state-specific data, as oudined in the population LISEPA of USEPA's (2000) hierarchy, and it exceeds the ote of 17.5 giday that uses to develop its national water quality criteria. (K)

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The following comments were provided by the ALC.

As a. legal clarification, Native Ainericans in Maine do not have sustenance fishing. rights outside the tribal reservations, ond the geographic scope ofthe tribal Indian. reser va t ions is limited. under the terms of the Act 10 Implement the Moine 'Claims Settlement (the "hriplememing Act"), 30 hilRSA, Sections 6201-6214, The Implementing Act gives the members of the Penobscot nation and the Passamaquoddy Tribe sustenance fishing rights "within the boundarles of their respective Indian R.eservations, Outside those tribesreservotions they are subject to the same fishing restrictions as any other citizens of the State, inchrding season. and bag limits, Further, the floulton Band ofMal ism Indians (MIMI) does not hove sustenance fishing rights at all. Outside of the Penobscot Nation and Passamaquoddy Tribe reservations, no one has a right of sustenance or subsistence fishing, (M)

The Penobseo Nation Reservation is defined in the Implementing Act as Indian Island and all islands in the Penobscot Rhrer north of Indian Island that existed on June 291 1818, excepting any island transferred to anyone outside the Penobscot nation subsequent to June 29, 1818 and before. 1980. Those islands do not include letter from Mairie Office of any portion of the Penobscot River (reference 6I3i97 Attorney General to USEPA Region 1), Nor does the Penobscot River include islands in the branches of the Penobscot River (reference 12/16193 letter from Moine Office of Attorney Ceneral to Bureau of Indian Affairs), (4

Principles ofriparian ownership do not apply to extend the Penobscot Nation Reservation to the in rddle of-the Penobscot River because the Penobscot Notion does not "owe the Penobscot Nation Reservation. Rzthe.r, the State ofMaine owns the Penobscot Nation Reservation in trust for the Penobscot Nation. The scope of the Penobsco tNation Reservation, therefore, is only (LS delineotad in the Implementing Act, and does not extend to any portion ofthe river itself. (M)

Thffefine, nCi one has a right to sustenance fishing in the Penobscot River, or anywhere else in the State of Maine outside the tribal reservations, including the Merluxnekeag River and it would violate the Implementhig Act to recognize such rates? tt right. Native Americans not only will not return to "IlkWrit consumption outside the tribal reservations, but (hey ore not permitted to do so pursuant to Maine law. Further, h would be impermissible for the DEP to establish stote-wide numeric fish human health INOtel: quality criteria that are protective of a tribnl sustenance consumption right that does not exist outside. the tribal reservations. If the. fish Penobscot Nation or the Passamaquoddy Tribe can demonstrate different consumption rates for waters within their reservations, howevex, it may be Posible for the Tribes to meet the criteria. in Chapter 584,3(B) for adoption of site-specifie waer body criteria. (M)

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Response to Comments #5 and if6

The Department recognizes that there may be inereased consumption rates as a result of subsistence fishing. The Depariment chooses not to substantially address comments made regarding the physical boundaries of the areas where sustenance fishing tights exist, the return to historic consumption rates hi areas where sustenance fishing rights -unquestionably Act cited as exist, or other issues relabed to the Maine Indian Claims Settlement above, these issues need not be addrnsed to establish protective AWQC. The Department's silence on these Issils should not be consh.ued as agreement with the commenters. instead, the Department chooses to focus on the larger issues involved with e-stablishing human health criteria for inorganio arsenic that will be appropriately protective of all Maine consumers, inoluding high risk populations,

The Department offers one exception to the above note. Commenters have questiohed whether tribal members require state fishing licenses and whether members may have been Tribal State excluded from the ChemRisk survey. The extent of tribal or Maine Indian in the Commission jurisdiction over water bodies within Indian tealtorles is described Maine Indian Claims Settlement Act. 38 M,R.S.A. 6207. The Penobscot Nation and Passamaquoddy Tribe have exclusive jurisdiction over fishing on any. pond located whoily in within Penobscot or Passamaquoddy territory which is less than 10 acres size. 30 M.R, S.A. 6207(1). The Maine indian Tribai-State Cofirtrili8Sion has mc1.0ive in size if 50% or more of the linear jurisdiction over fishing on any pond 10 or more acres of a river or shoreline is within Penobscot or Passamaquoddy territory, and iii any section is within Penobscot stream, both sides of which are in Indian territory or one sick ofwhich of 'A mile or more. 30 M.R,S,A, or Passamaquoddy territory for a continuous length 6207(3), The Maine Department of Inland Pisheries and Wildlife (MDIFW) indicates that tribal members do not require state fishing licenses for fishing in tribal waters, but do require state licenses when fishing in non-tribal waters. Where state licenses are required, issued the initial license is issued by the Tribe, whereas subsequent lifetime licenses are by MIDEW. The number of tribal waters in Maine ;s relatively small in comNirison to all hi tribal waters in waters. lit is possible that some individuals may have fished exclusively in the 19394990, not required a state fishing license, and thus were not. included be as population of license holders potentially surveyed. Although these individuals would that such valid as other anglers surveyed, the Department notes surveys typically only not include Individual. sample a cross-section of the population and do every possible

As to concerns with the validity ofthe ChemRisk (1992) and Ebert (1993) stn4fteports, in the Department provided information on the origin of Maine's ic.Nh consumption rate CMR 584. its Response to Comments on its 2005 revisions to Maine Rule 06-096 Maine "Ch8inRisk (Ebeit et ai) Conducted a 'nailed survey of 2, 500 randomly selected 612 ang(ersfin. the 1989-1990fishing season, obtaining respon.vesfrom 1, anglers (64% responSe rote). From these data estimates have been obtained a 95° porentilefish intake value of21 gramsper dayfor all anglers, 26 gram$per dayforfish consmiing American anglers, and .51 grams per dayfor a salsa °janglers ofNative heritage (N=143)". These above estimates reflect consnmption ofrecreationally caughtfishfrom

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all maws." "These data have been reviewed by EPA and ore fisted as one afthe key stifdie pi.ovkling iNfortnatfon on,fresirwater recreationalfish consionptio,

Cmi9kiingion of freshwater fish Ely 1Vbhie anglers, A Tediniedl.epori.Porlihnd, CheiiiRk a dyis kali. ofMoLatonfflart, Revised July 24, 1994, ciffroslwia 'Ebert E., n NW, .1=10ljeleYd.X111.8ht SW, Ke.ertq,:q3A.,1S.93&Eti anatin consomp.thp fish aniougiUting_ta AirtcIii Iouriit ofF1s]iar1e ug€oic,nt. Val 45. 31,ISEPA, 1997, Exm r Faciorali,u11b US Euvinnunenigkroieorion ARencyie.8.1),usANJA und DoidollmerILWashington DC. EPAi'601CIfi'-95-002ra,

of Currently, Wine utilizes a fish consumption rate of32.4 grams/day (the equivalent for Maine one 8-ounce fish meal per week), This represents the 97`b percentile recreational anglers for all waters, the 94' percentile for Native American anglers in Maine, and exceeds USEPA's current consumption rate of 17.5 grams/day that is based on the 901h percentile consumption rate for the US ri dult population (USEPA's AWQC Methodology Section 1, 6) and USFPA's previous rate of 6.5 grams/day. Maine notes that, at this time., USEPA is still using the 6, 5 gram/day consumption rate for calculating arsenic criteria, Using a cancer risk factor of 10E-6, Maine MA intains that the 32..4 gram/day fish consumption rate is not only protective of the sensitive subpopulation of fish consuming recreational anglers, but is also protective of the higher-end sensitive subpopidation of native American recreational anglers based on the only empirical data remains as of which Maine is aware (ChemRisk (1992), Ebert et a i (1993)). The question to whether this rate is adequately protective with the 10E-4 risk factor.

the ChemRisk 1992 et Though numerous commenters, including USEPA, criticize (Ebert al 1993) study, it is cited by USEPA jim the 2011 Exposure Factors Handbook in both Section 10.10.3, Recommendations Recreational hreshwater Anglers, and Section 10, 10,4, Recommendotkins Native American Subststence Popgdatlons, As to its adequate representation of the Native American population, the ChemRisk study sampled 0, 12% of the general population in Maine and approximately 1.9% of the Native Americ.an population in Maine. The ChernRisk. study sampled 0.59% of the general population fishing license holders and 4.5% of the Native American lifetime fishing license holders on non-tribal lands based on current numbers. Therefore, contrary to ismrtions made by commenters, Native Americans in Maine were represented at a higher percentage than was The general population.

in at the time of As noted by commenters, some fish consumption advisories were place due to dioxin in the the ChemRisk survey. The first fish consumpfion advisories were Androscoggin Rivet in 1985, the Kennebec River and Penobscot River in 1987, and the The 1990 P resu inpscot River and West Branch of the Sebasticook River in 1990, Additional advisories have advisoiy was subsequently revised and removed in 1992. and been established since the ChemRisk survey period, based on mercury, dioxin, DDT, other contaminants. Additionally, public awareness ofhistorical pollution in on a local indusnialized rivers can be expected to have suppressed fish consumption basis. The Departmentis unable to quantify the extent of suppression due to historical the ChemRisk pollution in the major rivers or the dioxin advisories iii place at the time of for study, but believes that the ChemRisk (Ebert et al) estimates offish consumption

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rivers and streams a$ well aS the inclusive "al1 water& category are likely to have been is in affected to some degree. The Department believes that this effect likely similar othet studies of recreational and subsistence anglers that are used elsewhere and nevertheless considers the ChemRisk (Ebert et al) study to provide the best aveilabie Maine-based data.

The ChanRisk (1992) and Ebert et. al (1993) study calculated Fish Consumption Rates by combining fates from all sources including rivers/streams, lakes/ponds, open water fishing, ice fishing, personally caught and gift fish. The Department has recently calculated the 99th percentile of this data to be 37.6 grams/day for lakes/ponds and 1.38 grams/day for all the in waiters to represent the most highly exposed subpopulation. To meet responsibility USEPA's AWQC Methodology of ensuring criteria are "(tdequarqyprofective ofthe ?Flost the highly exposed subpopvlotion" with a change in the Cancer Risk Level noted above, Department proposed to use the 138 gram/day (99th percentile) value as a revised statewide fish consumption rate in calculation of inorganic arsenic AWQC. As this is local population-specific empirical data, it. is a preferred value to the national default subsistence fishing consumption rate of 142.4 grams/day (also 9.94Ipercentile) according to EPA's Ebert AWQC Methodology (Sections 1.6, 2.6, 2,8,2). Further, as the Chemitisk (1992) and in both Section et al (1993) study is cited by EPA in the Exposure Factors Handbook 10.10,3. Recommendations Recreationai Pmshlvote). Angkr.t and Section 10, 10,4.. Recommendation.5.— Native Amerkan Siiimistence Popifiations, Maine believes that tile validity of the study and the piotective nature of its revised fish consumption rate for sensitive subpopnlations (138 grams/day) are demonstrated,

C. Inorganic Arsenic Portion of Tote I renfc anic_13.1or 7. Comment;

Woodland Pulp LLC states that much of their arsenic discharges are of "organic" not harmfill and not "inorganic" arsenic. Organic arsenic is universally accepted as to human health or (he env hronrnent and is not regulated by the Department. Assumptions regarding the amount of inorganic arsenic (versus the harmless in organic) in fish tissue are wikily otT the mark. Although inorgEMie arsenic levels is that 100% of arsenic in fish fish tissue range only from 2-10%, the assumption tissue is inor nic. This results in effluent limits "orders of magnitude lower than limit of 0,35 is for necessary to protec t human health". Indeed, our arsenic ppb just used the inorganic arsenic, with no limits en organic iimnic. The Department has ate The ratios of an assumption that 50% of a facility's arsenic discharges organic. obvious inorganic bo organic arsenic in ow discharges va•y widely, and with no that the correlation to mill operations. As a result, there is a significant chance mill's organic arsenic discharges will be subject to its limit even though there is no The harm to human health or the envkonment from organic arsenic. existing of AWQC (TA) are based on flawed assumptions regarding the levels inorganic human arsenic that May exist in our environment without. adversely impacihig health. The current risk level of 10E-6 in Chapter 584 assuineS fish consumption

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EPA and FM rates that are• almost double the consumption rates used by L1, S. wccessive bioaccumuhition. (1-2)

in FMC Corporation and The Arsenk Legislative Coalition state that on average, nd estuariu freshwater fish only 10% of the arsenic is inorganic while in rnadne fish only 2% is inorganic. (E)

Restionse to Comment #7:

and in the raw Arsenic is widely present in the environment. It is found. in our soils, water, the 2005 rule materials used by our manufacturers, In guidanee developed following in the literature between 1% and 99% revision, Maine noted a wide range of inorganic factors Maine settled on a rebuttable presumption of depending on the arsenic source represented. criteria 50% Inorganic/organic in total arsenio te be used in applying the established through of other states and effluent. limitations. At the suggestion ofUSEPA and from the example in USEPA regions, Maine is proposing to establish an inorganic factor AWQC (IA) in tOthi calculations. The current literature discusses a range of 10-30% inorganic arsenic nrseniG.

"Datafrom the Of many available studies, Lorensana et al (2009 scholarly review) reports, worldsiPide literature indicate the percent ofinorganic ors.enic 1i marindestuaNne flesh does not exceed 7.3% and in shellfish canivach 25% in organismsfrom presumably However, ?ftico1110121?Wed areas, withfeiv data availabkforfireshwater organism. contaminated areas and in seaweed' US percentages can be much higher in organismsfrom to the worldwide data, site-specific &dufor MaPiNekaurnine flesh andshellfish ore similar arsenic is andfar flesh indicate dot the average percent inorganic generally freshwater or <10%, hut ranges lt.p to nearly 30%." "Dataforji.eshwater orgonismsfrompresumed known contaminated US site assessments indicated that whereas average percent inorganic arsenic 03-'senic values Ivere generally <10%forfinfish, the percent inorganic valuesfor not individual samples or composite ofa partic?dar tjpe offish can varyiridelyftorn &WWI to heOrt), 30%,

with some. a 10% It is noted that there is variability even among USEPA Regions, using to inorganie fa.ctor, while others use a 30% inorganic factor. Some species appear at the lower consistently have iow levels of inorganic arsenic. .Aside from this, some ngures based on results, while the end of the range in reviewed studies ate actually average end of the maximum amounts are observed to approach or exceed the upper range depending etc. As Maine seeks to ho on portions of the organisms analyzed, ItYPkafly vecies, levels 95th of hnman health and aquatto life at much higher than average (i.e. protective 30% Factor, percentile), the Department is recommending the more conservative Inorganic

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a USEPA Comm t Regarding Application of Maine Water Qualitrndards, 8. Comm=

USEPA provided the foilowhig which is essentially a r.epeat of a comment that it made for the 2005 Chapter 584 ruiemaking, "at present, note that Maine's state water quality standar& are not applie‘rble to 3ratem ofthefederaky recognized nibes in maim because the sole hag not specifically applied to bnplement ilS water qualiV that standm.ds program in these territories and EPA has not made a specOc.finding the State hasjurisdiction to implement the water quality standards in Tribal wailers. EPA is taking no position now on whether the State has adequate aidhotqty to implement it.r standar& in Indian ten.itories."

Res onse to Cornmentt.

Maine provides the response Ehat it. provided in the 2.005 proceedings, "Maine submits lls ipater Dialityslandards to EPA for approval, pumeant to SeCii:011 303 ofthefederal CWA, to be applicable to all State watem Until recently,,EPA has never qualified its acknowledgments as applying only to certain State 1 yaws, nor indicated that such standards as applied to the I vaters ofthefederally recognised Tribes in Maine were inconslstent with the CWA or any otherfeell?ral taw. The Maine ImplementingAct and federal Maine _Indian Claims Settlement Act provide that exceptfor certain Infernal tribal matters not applicable here, the Tribes, and the lands and natural resources o•ned by the Tribes, 'shall be subject to the laws ofthe State, to the same extent as any otherperson or Maine's lands or other natural re,s.ources therein.' The Dept.-often( thus disagrees that state water qualify standards are not applicable to the waters ofthefederally recognized Tribes in Maine."' That Maine's water quality standards apply statewide, including in Indian Territory and In dien Reservations, has Mace been confirmed by the U.S. Court of Appeals Thr (he Fint Circuit in Maine v. Johnson, 498 F3d 31 (I'L Cir, 2007).

E. Pidanation of Ihe Revised AW C

The initial proposed revisions to the AWQC for inorganic arsenic were prompted by the Maine Legislature (PI, 2011, e.194, An Aot to _Review State Water QualiO, Standards) and were limited to the cancer risk factor. Based on comments received from USEPA and other commenters and to ensure adequate protection of the general population as Wd conducted a wkler as highly exposed fish consuming subpopulations, the Department review of the factors used for establishing inorganic arsenic criteria in Maine, other states, and USEPA regions. The Department proposed Yevisiom to several other relevant factors, which resulted in. revised AWQC for inorganic arsenic. The revised criteria are less stringent than t6 initially proposed criteria. However, the process utilized is considered by USEPA to be more transparent and more protective of sensitive. subpopulations at the 10.E-4 cancer Ask level. This process has been used by other states, at the revised such M Oregon, and approved by USEPA, factors used to arrive AWQC (IA.) are described below.

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Chapter 584 Inorgani• Arsenio AWQC for Human Health

Parameter 2005 (previous rule. Initial.pro osed rule Ado, ted 2012 rule. Cancer Risk Level 1.00E-06 1, 00E-04 1,00B-04 Bod Weight 70 k! 70. 70 k: 135 da Cancer Fotenc Factor 135 rn_: da IREMEIMIE ingik: Water Consunira tion 2 Lida 2 Lida 2. Lida Bio conic entratkn Factor 44 •/k t 44 Ilk: 2.6 Mi. 138. da Fish Con su tllionri Rate 101231112371 Inorganic Factor 50% rebuttable 50% rebuttable 30% 'realm stion hi limits resumption in limits Criteria ---1---- Human Health: 0.012 IA gill, 1.2. ug/L 13 ugiL Water and Or: an isrn s I Human Health: 0.02g ugIL 2.8 ug/L 33 ugiL Organisms only

Camp' Riktc Level: Indicated change pt)EgIlallt to FL 20111 0.194, An Ad to )eview &are Water QualV Standao.ds (codified at 35 M.R.S,A, 420(2)(J)). Body Weight: No change is made to the standard subject body weight of 70 kg, Car, L1±10ency (SlopsFa)r: The 1.75 mg/kg/day is tlie enurent USEPA value, promulgated in the Na(ional Toxies Rule (1992). In 1998, USEPA established a value of however the 1,5 mg/lc& ay in the integrated 'Usk Information System (IRIS) database, national criteria was not revised and the 1992 value remains in effect. Both 1.75. mgikgiday and 1,5 mgikg/day are based on asellie effects in skin cancer. The Science Advisory Board and National Research Council now recommend a draft potenoy factor of 25.7 mg/kghlay based on cancers in internal organs such as the bladder and lungs as more and applicable to arsenic consumption. ntit, this value has not been formally adopted USEPA advises lt can not be used at this time. A date has not been provided for adoption have utilized the of a revised Cancer Potency Factor, Some states mid USEPA regions 1998 MIS factor of 1.5 mg/kg/dziy, though it was not formally adopted by (JSEPA. Based the on the expectation that a revised factor may be 8reater than the existing factor, Department chooses to continue to use USEPA's adopted 1992 %PAM Of 135 mgikeday arid not to incorporate the less stringent, 1998 IRIS factor. Water Convniption; No change is made to the standard water consumption rate of 2Liday. Bioconceffictoi.11.:1): The 441./kg value is the current BCF for USEPA (Ambient Wafer aiteviator Ar..5.enic, 1984) amid Maine 20o5). It is based on a limited data A set of studies for two species: eastern oyster (1982) and bluegill (1930). more recent analysis by USEPA calculated the proposed 26 L/kg vairre from the geometric mean of the previom studies and three additional studies on rainbow trout (1994), The revised BCF of and USEPA ha8 26 Likg was approved by USEPA for marine WOWS in Oregon (2.011) HQ recommended it for use in Maine waters statewide.

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f ish Consumption Rate (FCR): As noted above, the Department is proposing to revise the FCR used in calculating 061..WQC for inorganic arsenic from ihe tun.ent 32.4 giday Ia 138 girt-lay. This value will be protective of 99% of the high end fish connuming, Native American sensitive subpopulation in Maine pursuant to the ChemRisk (1992.) and Ebert et al 0993) study. Inorganic Factor: As noted above, the Department in applying a 30% inorganic factor (IF) in c.a)euIating AWQC for inorganic arsenic, representative of estimates of the percentage of inorganic arsenic in total arsenic. Previously, the Department did not specify an IF in calculaticm of,ANQC (IA), However, the percent inorganie was addressed in calcu/ation of effluent limitationsfor useniG. By default, the AWQC (IA) assumed 100% inorganic arsenic. But, during fimit ealculations, the Department applied a rebuttable presumption of 50% inorganic arsenic, representztive of the variability in previous estimates ofthe percent inorganic, AWQC CIAI: The de•scribed values result in Ambient Water Quality Human Health consumption ofwater and organisms (freshwater) criteria of 13 ugiL and Human Bealth consumption of organisms only (Marine we].) criteria of3.7

2, SECOND PUBLIC CONThefENT PERIOD MARCH 14, 201.2 APRIL 13, 2012.

During the public comment period for the revised proposed rule, the Department received comments from three parties, focused primarily along the following themes.

A. The owe osed role is still very conservative

J. Comment:

The Maine Rural Water Associatfon (MRWA) stated, the proposed rules are still overly conservative and are stricter than the majority of other states. Even though these of the State proposals are decreasing the burden they art still too restrictive. Some areas with high naniral levels of=olio will continue to find compliance with the proposed revised criteria to be a cliaHenge particularlylf their drinking water or an industry impacted by soil arsenic concentrations such as potato, landfill leachate, paper, wood products, fW-1 or marine products discharges to the treatment plant. (0)

The Arsenic Legislation Coalition (AIX) supports the proposed changes in the AWQC for inorganic arsenic because, as it described in its earlier comments, they will not cause for all Maine increased exposures to inorganlo arsenic and, thus will be health protective residents. Each ofthe revised factors can be shown to be very eonservative. (P)

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The City of Rockland Poihrtion Control Facihty stated, when the legislature passed LD 515, An Act to Review State Water Quality Standards, it was recopized that the current Chapter 584 arsenic AWQC was unnecessarily stringent. The least complex method to address this issue was to modify the Cancer Risk Level, leaving all other parameters unchanged. The revised criteria will continue to put an unnecessary burden on nrunicipahties and industries in Maine, The City of Rockland appreciates and supports.Malne DEP efforts in proposing important modifications to the Chapter 5a4 arsenic AWQS. .Flowever, the City does not support the revised modifications to the Fish Consumption Rate, Bioconcentration Factor and Inorganic. Factor, The City continues to support the initial proposed rule, and will only support parameter modifications thatare protective without being overly stringent, (Q)

Response to Comment Ifl

The Department's initial proposed ambient water quality (human health) criteria for inorganic arsenic (AWQC(IA)) proposed to change the acceptable cancer risk factor from 1 case per I million people (10E-6) to I Case per 10,000 people (10E-4) as mandated by P.L. 2011, c. 194, but did not pnopose to revise any of the other parameters used in calculating AWQC(TA). In its comments, 'MIA noted that well sampling programs conducted in Maine in 1999/2.000 and 2006/2007 indicate that a significant portion of Maine residents are already exposed to elevated arsenic clue to high conce.nhations of arsenic in p•ivate drinking water wells. Whereas prior arsenic toxicity information was based on risks of skin cancer, Ell.M recent studies indicate risks of internal cancers as well. Based on this and other issues noted above, USEPA determined that the Departinent's initial proposed revised human health criteria for inorganic arsenic were not sufficient to ensure that sensitive subpopulations wouki not be exposed to a cancer risk from inorganic arsenic exposure greater than one case per ten thousand people (10E-4), and thus would not he adequately protective of sensitive subpopulations, (Comment 1.A. I. Opposed) This prompted the Department to review methodologies used for establishing inorganic arsenic criteria in other states and USE.PA regions and. propose revised criteria that would be adequately protective of sensitive subpopulations. The result is a process in which several underlying parameters involved in the calculation of .AWQC(IA) were evaluated and revised, resulting in a. more transparentprocess that the Department believes is based on appropriate science and policy. M noted above, in addition to (he change in cancer risk factor mandated by P.L. 2011, c. 194, revisions were made in the statewide fish consumption rate, bioconcentration factor, and percent inorganic factor used in calculating AWQC(IA). A discussion of the tra,Sis for each of the revised parameters is included in 1.E above. Interestingly, though not the intention of the review, in this reevaluation process the proposed csiterim became less stringent. The previous AWQC(1A) were 0.012 tig/L for consumption of water and organisms (EHWO) and 0.02.8 tie, for consumption of organisms (HBO) only. The initially proposed criteria.were 1.2 ug/L (BE-WO) and 2.3 (I-11.10). The revised crlieria am 1.3 ug/L (E.HWO) and 3.7 ug/I, (1-1110). The Department believes the. revised proposed criteria are attainable and affbrd protection of Maine citizens and therefore stands by the revised criteria.

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B. Revision to Fish Consumption Rate

2. Comment One of the revised parameters upon which the revised AWQC(IA) is based is the fish consumption rate. Conamenters expressed concern with the revision from 32.4 glday lo 138 giday,

The City ef Rockland Pollution Control Facility supported the initiallyproposed rule that leaves the current Fish Consumption Rate at 32.4 g/day. The revised criteria are based on On EFA Factors an increased Fish Consumption Rate of 138 g/day, reviewing Exposure 1-landhook1 EPA/600/11-09/052F1 September 20111 Table 10-5, it is apparent fish consumption rates are highly variable across the county. Given this significant variability, the Fish Consumption Rate within the Exposure Factors Handbook Table 10-5 Sumniary ranges for Statewide Surveys, which include data from Maine based consumption studies (i.e. 5-51 g/day) should be considered. (Q)

The IVRWA states, Maine wmits to follow Oregon with a much higher fish consump Lion rate-value of 13.8 g/clay, but only MISider it for the arsenic calculation. We are strongty opposed to increasing fish consumption values as this will lead to the argliment that why is Maine using increased fish consumption for arsenic but not for other pollutants such as that an increased fish copper, lead, zinc and organicas? Opening ihe door to the argument consumption value should be used hi all toxic-s since it is agreed that there Is a. population in Maine that depends on subsistence fishing would greatly burden small tommunitles by requiring tertiary treatment to meet much tighter water quality criteria. (0)

The majority ofhighly exposed fish consuming subpopulations exist in limited areas of the State, The MRWA submits that Maine should consider site specific criteria for areas separately than the remainder of the. State. The majority of the subpopulations which .Different areas have consume more fish are consuming more freshwater fish. in Maine differing naturally occurring levels of arsenic in the water. Since there is significant variation throughout the state, criteria should be evaluated based on site specific criteria in orde.r to be truly science brisei The fish consumption rate should only he applicable to those regions that there. Is a. subpopula tion that exists based on subsistence fishing. (0)

The lvIRWA believes the State also should determine the fish consumption rate in those subpopulations in Maine and not base it on other states ethnic practices. IfMaine rate value used in the proposes to Ullow Oregon in hicreasing the fish consumption taxies calculation and continue to remain so conservative with all the ihctors allowable, we submit, that there should be variances allowed for naturally occun:ing background concenholions in the permitting process. (0)

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Resoonse to Comment 42

Maine is using a higher fish consumption rate for use in calculating AWQC(Ji) to ensure protection of sensitive subpopulations, as 18 required by USEPA's A.WQC Methodology. This action is not taken with an intent to follow any other state and it specifically utilizes Maine data, As noted above in the Response to Comments If1,13.5 and /A .1El4 Maine's 81ailVicie fish consumption rate of314 varns/day represents the 91 percentile pre1/1011.8 dilk for Maine recreational anglers for all waters and the Vq- percentile for Native American the. 32.4 anglers in Maine. Using a cancer risk factor of 10E-6, Maine maintained that gram/day MI consumption rate is not oniyprotective of the sensitive subpopalation of fish consuming recreational anglers, but is aiso proteetive ofthe higher-end sensitive subpopula Owl of native American recreational anglers based on the only empirical data remained of which Maine is aware (ChemRisk (1992.), Exit et al (1993)). The qmestion 10E-4 risk factor. as to whether this rate was adequately protective with the

USEPA determined that the Department's initially proposed revised AWQC(IA), iii which only a change in the cancer risk factor was pmposed, were not sufficient to ensure that sensitive subpopolations would not bc exposed to a cancer tisk front arsenic and thus would not be exposure gre ate I.than. one case per ten thousand people (10E-4), adequately protective of sensitive subpopulations. (Comment 1A.1, Opposed).

To meet the responsibdity in IJSEPA's AWQC Methodology of ensuring criteria are "adequatelyprotective ofthe most highiy exposed subpopulation" with a change in the Cancer Risk Level noted above, the Department is hsing the 138 gram/day (99th percentile) vahie for Native American anglers in Maine as a new state-wide fish consumption rate in caleulation ofinorganic arsenic AWQC. As this is local population- specific empirical data, It is a preferred vahie to the nation El i default subsistence fishing consnmption raw of 142.4 groan/day (also 90percentile) according to EPA's AWQC Methodology (Sections 1.6, 2,6, 18.2.). Further, as the ChemRisk (1992) and Ebert et al (1993) study is cited by EPA in the Exposure Factors Handbook in both Section 10.10,3, 10.4. .Raconarietidadoo,y —Reci'earkmai jilre.simrater Anglers arid Section 10, Recommendations Native American Subsistence Populadons, Maine believes that the validity of the study and the protective nature of its revised fish consumption rate for sensitive subpopulations (138 grams(day) are demonstrated.

The revision to the statewide fish consumption rate used in calculating AWQC(IA) only for applies to calculation of criteria for inorganic arsenic. Ail other criteria except 10E-6 and thus do inorganic arsenic are still calculated based on a cancer risk factor of of the mast not require a change. in the fish cons amption Tate in order to be protective sensitive subpopula Lion.

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As noted above (Comment. #1,B, 3: Opposed), in its initial p•oposed rule, the Department referenced additional protections provided In the existing rule (06-096 CMIt 5343.8(2)) through the ability for parties to request establishment of site specific human health criteria. As noted in the same section, USEPA deeriuiiied that this opportunky alone did not adequately address its concerns with protection of sensitive subpopulations, It was determined that a new statewide fish consumption rate was required. However, the existing rule section cited is still available if it is determined that some areas require a greater rate in order to ensure adequate protections,

The Deparbrient notes that the commenter's suggestion to consider background concentrations is already provided for in Deparimentrule 06-096 CivIR 530, Surface Water Toxics Control Pro• am, Section 4.0 Background concentrations.

The Department believes the revised proposed statewide fish consumption tate is appropriate for inorganic arsenic and therefore stands by the revised proposed cdteria,

C, Inorganic Factor

3. Comment One of the revised parameters upon which the AWQC(TA) is based is an Inorganic Factor (IF), Commenters expressed concern with the revision to utilize a 30% IF, suggesting a lower IF instead,

The ALC restated previous comments that 5n05t aisenie hifish in the form oforganic compounds that are much kss toxic limn inorganic arsenic. On average infreshwater fish, leSS Ihaln 10% off& vsenk is inorganic, while in marine and estuarinefish, only 2% is inorganic hoofand Yager 2007). As noted by Schaafand Yager (2007), in •eshwaierfinfish, the mean inorganic apsenicfraction was 7, 2%, the 7.5th percentile was i61% and the 90" percentile was 16%. Maine DEE has selected a maximum value io represent the inorganic arsenicfraciian, butfish consumers will be exposed to various kinds offishfi.(mt val.fous 30?erCeS over their lifetime, so ase ofa value close to a maXimurn rillyield substanlial overestimates ofpoteniial exposure to inoirmk arsenk, (P)

The MRWA is supportive of the changes to the criteria that have made them less strict, but feels they are still overly conservative and would encourage using a lower inorgani fraction for the calculation ofthe criteria of 10% rather than 30% which is overly cons ervat ive. (0)

The City of Rockland Pollution Control Facility states, if the Inorganic Arsenic Factor is to be modified, a representative factor should be established, AD inorganic factor of 10% would be more representative of actual freshwater fish conce.ntrations and overly protective in the cse of marine fish, (Q)

Response to Comments Pap 29 tyky 2.5, 2012 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 116 of 120 PagelD 140

CHAPTER 584 Surface Water Quality Criteria for Toxic Pollutants

kesponse to Comment 113

As noted in Respow to Col-or/1011i 111, C.7 above, the nri.ent literature discusses a range of 10-30% inorganic arsenic in total arsenic. It is noted that there is variability even, among 11.APPA Regions, with some using a 10% inorganic factor, while others use a 30% inorganic factor, Some specks appear to consistently have low levels of inorganic arsenic. Aside from this, some figures at the lower end of the range in reviewed studies are actually based on average results, while the maximum amounts are observed to approach or exceed the upper end. of the mange depending on species, portions ofthe organisms analyzed, etc, As Maine typically seeks to be protective of human health and aquatic life at much higher than average levels (i.e. 9511' percentile), the Department siands by its use of-the more conservative 30% inorganic Factor. However, the Department does not rule out.reconsideration of any of the parameters utilized in calculating the AWQC(f.A) as additional information becomes available and as appropriate.

D. pioconc.entration Factor

4. Comment One of the revised parameters upon which the AWQC(TA) is based is the Bio c oncentra lion Factor (BCF). Commenters expressed concern with the proposed revision from 44 1../kg to 26 Ilkg, suggesting a lower BCE instead.

The ALC comments that the consumption-weighted BCF was intended for broad application to freshwater and es NM rine environments, but that current consumption patterns suggest that the BCF should be even lower than proposed, (P).

The City of Rockland Poihitio ri Control Facility comments that, based on available fish consumption data, 26 .11kg is overly stringent as well. (Q)

Response to Comment #4

As noted above in Section 1,E, Explanation ofthp Revised AWOC (IA), Bic concentration Factor, the previous BCE of 44 Likg for inorganic arsenic is based on a limited data set of studies. The revised BCF of 26 was calculated by USEPA in a recent analysis oft= additional studies. USEPA recormnended that the 26 li,kg BCF he utilized stdewide in Maine, The Department believes the revised proposed statewide BCE is appropriate for inorganic arsenic and therefore stands by the 2012 revised criteria.

nespolls La Ceriamems Pagt 30 May 26, 2012 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 117 of 120 PagelD 141

CHAPTER 584 Surface Water Quality Cdteria for Toxic 1)011am-its

E. Summary Staternents

5. Coinment

The ALC states, the revised inorganic arsenic criteria are protective of human health and are more stringent than criteria approved by most other states. The criteria me a i8o consistent with USEPA methodologies and guidelines for developing human health criteria and, as long as there are no increa S'e8 ilhove natural levels, will not lead to increased exp ostl re to arsenic for Mahue residents. Even high fish consumers will be protected because both the assumed fish consumption rate hes been increased and because the arsenic concentrations in fish will Dot change. Furthermore, less than 10% of arsenic in fish is inorganic arsenic, providing a greater than three-fold protectilie factor for the revised AWQC. Based on these findings, the ALC urges the Maine DEP to adopt the karmic. arsenic AWQC as revised, (P)

Re.3Do1ie to Comment 45

The Department offers no rspanse,

Response to Commtuis Pago 31 Nifty 2.5, 2012 Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 118 of 120 PagelD 142

EXHIBIT

Notice of Agency Rule-making liroposal

AGENCY; DBFARTMBNT OP ENVIRONMENTAL PROTECTION

CHAPTER NOIABRWAND TITLE: 06-096 ChM 94, Sitirface Water Quality Criteria. for Toxic Pollutants

FROPOS13D RULE NUMBER (leave blank asApied 1v Seeretaq of8010

CONTACT PERSON FOR THIS FILING; Robert D. Stra(ton Maine Department otBJIyirQIImeTIial Protection 17 StateHouse Station Augusta, Me 04330-0017 Tel: (207) 2154579. B4=Ix: (207) 287-3435 Rob [email protected]

CONTACT PERSON FOR SMALL BUSTIOSS INFORMATION (If different):

PUBLIC REARINO (if any); November 1, 2011, 9:30 am, MBDEF Response Seivices Training Room, 4 Bic EIS.0111 I41110, Angusta, ME 04330

COMMENT DEADLINE; December 1, 2011

BRIEF ''SUIAVIARY1 The akirfaco waters of the State are illanUgrA to prevent coma In rnatiol from toxic p el ltitards io toxic amounts in order to meet. the goals of the Clan WaterAct and /viable's water quality standatdi Toxic compounds may not be discharged Iii a tuoiluitt (harm cause toxic impacts on apatieorgfinisms or affect }wimp boa ith, This rule revision changes the co ocer risk level Ibr inorganic arsenic used in ea WI Ming ambkrit water quality (m mail health) mite& and establishes revised inorganic Meld° ciIierIa aconlingly„ Further, IJila rvision updates Maine's ambient water quality-and human heahlt criteria far pollutants kir which USEM lies updated eriteria since Me io$58 MA recision in 2005, using Ma ine-spacifict parameters where applicable,

IMPACT, ON MUNICIPALITIES OR. COUNTWS (if y)T1s Mei revision will benefit mutt ieipaiities this operate affected Publicly Owned (wastewater) Treatment Works (POTW) by eliminating criteria for arsenic that is believed to be unattainable and establishing new arsenic criteria still within USEPA guidelines. Pthrtlier, Irwin benefit affe4te4 municipalities by ensuring that the, Dopartinoat uti izes the most, current criteria,

STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA, 341 420, and 464

SUBSTANTIVE STA'rE OR FEDERAL LAW BEING IMPI.GEMENTED (ifdi fromrit):

13-MAIL FOR OVERALL AGEKY ROLE-MAKING LIAISON; [email protected]

Check one ofthefollowing

XThe above summary isfor lag ii both Me nelsktpaper end wastrel noilea:

D The above samma-ey u.f•ap the newsporpenollee only; A more detailed strwoary/ bolls stafeonenr is' attached. Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 119 of 120 PagelD 143

Rule-Makiug Fact Sheet (5 iflA 0057-A)

z AGENCY: DEPARTMENT OP ENVIRONMENTAL PROTECTION

NAME, ADDRESS, PHONE NUMBER OP AGENCY CONTACT PERSON!

Robby( D, Stratton Maine Department ofEnifireninentai PrOtOtioa 17 %ft House Station Augusta, Me 04330-001i (2.07) 2/ 5-1579 Fax: (207) 287-343$ Robert,[email protected]

CHAPTER NUMBER AND ROLE TITLE: 06496 CMR 584, Surfzie0. Water Quality Criteria for Toxic Pollutants

STATUTORY AUTHORITY: 38 MRSA, 341-tf, 420, arid 464

DATE AND PLACE OF PUBLIC 1-1EAlaNa. November J, 2011, 9:30 am, MBDEP Resporr,5eSmices Trnitthig Room, 4 Blossona Lille, Augusta, MlEt 04330

COMMENT DEADLINE: December 1, 2011

FRINCIPAL REASON OR PURPOSE FOR PROPOSING THIS RULE:

This rale revision IrVB initiated pursuant to PI, 2011, c 194 (LD 515), An Act to ReWe iv S?ate Water Quality Staudards, and at the request of tbe Joint Standing Committee on iinvtrtkument- and liatml Resource& This rule revision changes the orteer risk level for inorganic arsonic tinged in calculating ambient water quality (human health) criteria end establishes revised litorgani arsenle Criteria ac.04)rtfluttly. Furtheri. this revhdon 11.pdates Maine's ambient. water quality alid human health criteria for: pollutants for which USEPA. has updated criteria since Moines last revision in 2005, using Maine- sPecireo parameters whore applicable,

ANALYSIS AND EXPECTED OPERATION OF TIM RULE:

This action nwises on existing .Maine rule (06-096 CMR 584, effective date Weber 9, 2005) with an original effective date of May 17, 1991, The original rule was established lit response to amendments to the Federal Ckon Water Act in 19 g7 and arriendmants to 38 MRSA, Section-420 enacted In 1991, iio th of which required Maine to develop comprehensive ruin dealing with toxic pollutants la 1.1c4nsed wastewater discharaes, Tile Department erstablished and has,inanaged a surface waters toxles control, program since (ha effective' date of the original rule- The Department aaticipatos that the revised mle WIN operate sUecessfo lly within the Department's existing program.

FISCAL IMPACT OF rTHE RULE:

A COst norteEt Analygit2 hag been. Mumbled innacastary at this time. This ride revision Ia aottelpated to resuIt hI no inefeami cosis to the regulated community arid no appreciable Iricroaed costs to 'the Department. It Is mandated by 'law and may result ih less regulatory hoidens on the fogirlated coimmmily, Case 1:14-cv-00264-JDL Document 1-1 Filed 07/07/14 Page 120 of 120 PagelD 144

Rule-Making Cover Sheet 2012-211 TO: Secretary of State ATTN; Ad aidniatratNe Procedure Officer EXHIBIT State HolMn Station 10i, Aligudn, r1riaine 04333. 1r Agency: DEPARTMBNT or ENVIRONMENTAL PROTECTION P

2. umbrella and unit 06-096 4.goney animber; KIM (2 WO unkrOi (a and 3 digit unit II) 3. Title offlaw Swface Water OrtaliVQ.Iter.ia for Toxia Polln tants 4. Chapter number ASIigne cl to the rale MR 5.84 2,41 b5 3 or 6 J01 (mint digi.1 109) TIV /41 VATIf

5. ))21.1e0yrriathed(s) of no tfcef Published ruiernoking advertisements: gep timber 1.6„. 2011 (Clean Water Act); October-12, 2011 (APA); Mateh 14, 2012. (MA, eecond commentpericd)

6. Da/pIAce(a) of hearing(s): November 1, 2011, 930 aro, MEM? Response Services Training koom, 4 Blossom Liari, Augusta) /4E04330

1. Type: CI new role NI partial amondmeni(s) bf existing Tule'

wave/m.1m of ex itirtg role El repeal ofnric LI emergenq ride 1:1 repeat and replace; complete xeplacement of coasting chapter, with former version slmultaaeously repealed,

Nam ciphono of agency contact Mon: Robert A Stratton, (207) 215-1,579

9, If a major substantive rule tatdDr Title 5, c. 375, sub-M-A, check one of the followlng

17.1 ProvhdortaI adoption LI Final( Adoption findor Leerslaitimmlow) LI emergency adoption of at ajori-substantive nile

10. Certification Statement: )1, rohieia WL.Aho hereb., edify that tb atedied is 11 kV eopy cif the raie(a) described above and lawfully adopted by MAWmokpe ta_ii4o_CilhylcoalunfalIVOltetition on (nonsloCagormy) (45i5) further certify thot all portions ofthis ride aro adopted in oompilanee with the requirernentsre M&iie Adultnistratilc Procedure Act,

Signature: fr... toiVriaisigroiturer vivindiryil,p5d by dolma clammy.)

Printed wiree titl:klttak. IIII. 440

11. Approoreff e to fo•m and legality by the Anorney 09aeral on (do.i5) Signature (origins! algo Brum permallysl.gad. by 55,01.0fang Arrorrit.y Occer51) F. JUL 24 2012 printa Name; Janet M. RoCitotock, Aseintant Attorney 4one SIAM EFFECTIVE DATE: JR 2 2012 Case 1:14-cv-00264-JDL Document 1-2 Filed 07/07/14 Page 1 of 4 PagelD 145

'UNITED STATES ENVIRONMENTAL PROTECTION AGENCY s Region 1, "ftra 6 Post Office Square, Suite 100 PACrtv-, Boston, MA 02109.-3912

May 16, 2013 Patricia W. Aho, Commissioner Maine Department of Environmental Protection 17 State House Station Augusta, ME 04333-0017 Re: Review and Action on Water Quality Standards Revisions .Dear Commissioner Aho: I3y letter of January 14, 2013, the Maine Department of Environmental Protection ("DEP") submitted revisions of the State's surface water quality standards to Region 1 of the United States Environmental Protection Agency ("EPA" or "Region") for review. The revisions were adopted by the DEP on Joly.13, 2012. By letter to EPA dated January 9, 20131 Maine's Assistant Attorney General in the'Natural Resources Division certified the revisions as having been duly adopted pursuant to state law. The Region has completed its review of the submitted revisions to the arsenic criteria as further described below. Pursuant to Section 303(e)(2) of the Clean Water Act and 40 C.F.R. Part 131, I hereby approve the following water quality standards revisions to 38 MRSA §420, sub-§2 as sot forth in P, L. 2011, Ch. 194 (LD 515) "An Act To Review State Water Quality Standards" and CMR 584, Surface Water Quality Criteria for Toxic Pollutants. 1, Revision of the cancer risk level used to calculate the human health criteria for arsenic from one in 1,000,000 to one in 10,000 and 2, Revision of the arsenic criteria to protect human health from 0.012 to 1, 3 ug/I, for the consumption of water and organisms and from 0,028 to 3, 7 Re, for the consumption of organisms only. We are still reviewing revisions to the acrolein and phenol criteria and are not taking action on those revisions at this time.

EPA acknowledges your request to approve the revisions for all waters, including waters that are within Indian territories, Today's approval does not extend to waters that arc within Indian territories, EPA intends to publish a notice explicitly seeking public input on the applicability of the revised arsenic criterion in question to waters within Indian territories before completing its review, Therefore, EPA is taking no action to approve or disapprove the State's revisions with respect to those waters at this time. In the meantime, EPA will retain responsibility under Sections 303(e) and 303(d) of the Clean Water Act for those waters. Case 1:14-cv-00264-JDL Document 1-2 Filed 07/07/14 Page 2 of 4 PagelD 146

Discussion on the factors In implementing IA) 515, DEP reviewed (he available scientific literature health uses that arc used to derive water quality criteria to protect human including DEP also Fishing, recreation in and on the water, and, where applicable, drinking water. to derive arsenic reviewed data specific to waters in Maine and used the information criteria for Maine's waters.

cancer in skin or internal such as Arsenio is a known carcinogen that may cause organs EPA states that the liver, lungs and bladder.In its 304(a) criteria recommendations, for all arsenic criteria should be applied as inorganic arsenie.2 As is the case pollutants, data EPA's 2000 Human Health Methodology encourages states to use local and regional when making risk management decisions inherent in developing criteria, includi»g 'risk level and decisions inherent in selecting the appropriate fish consumption rate, target bioaccumulation factor? Maine's revised numeric criteria for arsenic were derived using the same general criteria methodology and equations used to caleulate EPA's current 304(a) recommended calculate the criteria for carcinogens. The revised criteria and the input variables ttscd to that follow those components arc summarized in Table 1 below. The paragraphs explain new arsenic eriteria, of the calculation that have been revised to form the basis of Maine's in 2011 DEP to Cancer Risk Factor (RF): The State of Maine enacted LD 515 directing risk revise Maine's human health water quality criteria for arsenic based on a cancer recommended factor of 1 in 10,000 rather than the previous RF of 1 in 1,000,000. EPA's 000 or I in methodology for the derivation of water quality criteria states that I in 1,000, for the and that highly 100,000 may be acceptable cancer risk factors general population leve1.4 exposed populations should not exceed a I in 10,000 risk the Fish Consumption Rate (FCR): Maine's previous 32.4 giday FCR represents 90 for Native American anglers in Maine and the 95th percentile for the total percentile Maine angler population in Maine, based on data from a 1990 survey of licensed anglers5. which is the 99th of In deriving the new arsenic criteria, DEP used 138 g/day, percentile subsistence a this survey, to ensure that the criteria are protective of fishers, highly for exposed population, This approach is consistent with EPA recommendations

Arsenic. Atlanta, Agency for Toxic Substances and Disease Registry (ATSDR). 'Toxicological Profilefor Georgia, August 2007, Available at. intp://www.atsdr.ede.gov/substances/toxsubstance.asp?toxkl-3 BPA, National Recommended Water Quality criteria, human health criteria for arsenic published 1992, available at: http://water.epa.goviscitech/swguldanceistandardskriterlakurrent/index.cfin 3 the Protection Human 84 EPA, 2000, Methodologyfor Deriving Ambient Water Quality Criteriafor of EPA-822-B-00-004. Health, U.S. Environmental Protection Agency, Office of Water, Washington, D.C, page 2-6. Available at: http://www.epa.t!ovAvaterscience/criterlaihumanhertithintothodkomplete.pclf Human EPA. 2000. Methodologyfor Deriving Ambient Water Quality criteriafor the Protection of EPA-822-13-00-004, Health. U.S. Environmental Protection Agency, Office of Water, Washington, D.C. page 2-6. Available at: lutp://www.epa.govAvatersciencetcrilerialliumanitealihfrpothodicomplete.pdf Fish Maine Ebert, E.S., R.E. Keenan, J.W. Knight, and 11.W. Harrington, Conswnption ofFreshwater by Anglers, proceedings of the 1992 TAPPI Environmental Conference.

2 Case 1:14-cv-00264-JDL Document 1-2 Filed 07/07/14 Page 3 of 4 PagelD 147

Table 1 Comparison of Maine's Previous and Revised Arsenic Criteria Parameter 2005 criteria .2012 criteria

Cancer Risk Factor (RF) I x 10'6 ix 10-4 Body Weight (BW) 70 kg 70 kg Cancer.Potency Factor (q1*) 1,75 mg/kg/day 1, 75 mglkg/day Water Consumption (DW) 2 Liday 2 L/day Bioconeentration Factor (BC) 44 Likg 26 L/kg Fish Consumption Rate (FCR) 32,4 giday 138 g/day 6 Inorganic Factor (IF) none 30%

Criteria to protect human health for consuming 0.012 pg/L 1.3 ug/L fish and drinking water (water + organism)

—1,000 x RF x 13W Ql* x [DW (BCF x VCR x IF)) Criteria to protect human health for consuming 0,028 ugn., 3.7 piga, fish only =1,000 x x BW 91 x BCF x FCR x IF estimating fish consumption rates for subsistence fishers and is appropriate to ensure that highly exposed subpopulations are not exposed to a risk level greater than I in 10,000. Inorganic Factor (lF): Arsenic is present in the environment and in fish tissue in both organic and inorganic forms. Inorganic arsenic is the form that is most toxic to humans and used to develop toxicity data for cancer and other end points, The IF is the ratio of inorganic arsenic to total arsenic in fish tissub. DEP conducted its own literature search which found a range of observed IF values from 10 to 30%. According to DEP's review, the lower end of this range is based on average results, whereas maximum amounts are observed to approach or exceed the upper end of the range depending on species and 7 other factors. DEP chose the more protective end of this range, Bioeoncentration Factor (BCF): Bioconcentration refers to the uptake and retention of a chemical by an aquatic organism from water, The BCF is the ratio of the concentration of a substance in the tissue of an aquatic organism to its concentration in the ambient water in situations,wherc the organism is exposed through the water only and the ratio does not

6 The 2005 criteria did not include adjustment to the criteria based on an assumption of a ratio of inorganic to total arsenic. Therefore, IP was not Included in the 2005 calculation. Instead, DEP assumed a ratio of 50% inorganic arsenic to total arsenic in developing water quality based effluent limits for dischargers subject to licensing under Maine's National Pollution Discharge Elimination System. EPA understands that with the adoption of the now arsenic criteria, DEP will no longer make those adjustments. 7See 1/27/2011 email from Robert D. Stratton, DEP, to Ellen Weitzler and Stephen Silva, EPA.

3 Case 1:14-cv-00264-JDL Document 1-2 Filed 07/07/14 Page 4 of 4 PagelD 148

change substantially over time. Maine has updated the riCE used for the arsenic criteria based on a 2011 BCF derivation for arsenic conducted by EPA in support of an arsenic 8 criteria revision in Oregon, The 2011 derivation used a larger set of studies than were available in 1980 when the 44kg/1_, BCF (used in the 2005 Maine arsenic criteria) was developed. EPA approves of the WQS revision to the arsenic criteria on the basis of the demonstrated use of available sound science, including state specific data, to derive the ncw criteria.

We look forward to continued cooperation with Maine in the development, review and approval of water quality standards pursuant to our responsibilities under the Clean Water Act. Please contact Ellen Weitzler (617-918-1582) if you have any questions, Sincerely,

Kenneth Moraff, Acting Director Office of Ecosystem Protection

cc: Brian Kavanah, MEDEP Tracy Bone, EPA SSB Jennie Bridge, EPA

EPA, Region 10, 'Technical Support Docwnentfor Action on ihe State ofOregon's New and kevisad Human Health Water Quality criteriafor Taxies and Associated Implementation Provisions Submitted July 12 and 21, 2011, October 17, 2011

4 Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 1 of 11 Page

COMMENTS OF MAINE ATTORNEY GENERAL JANET T. MILLS ON EPA'S REVIEW OF MAINE WATER QUALITY STANDARD REVISIONS AS THEY APPLY IN INDIAN TERRITORIES

SEPTEMBER 13, 2013

The State of Maine, by and through its Office of Attorney General, hereby submits the

following comments in response to EPA's "Public Notice of EPA's Review of Maine Water

Quality Standard Revisions as They Apply in Indian Territories." EPA seeks comments on the

State's authority under the Maine Implementing Act, 30 M.R.S.A. 6401 et seq. ("MIA") and

Maine Indian Land Claims Settlement Act, 25 U.S.C. 1721 et seq. ("MICSA") to set water

quality standards ("WQS") in Indian territories, and on whether these particular WQS revisions

adequately protect water quality in Indian territories. Pursuant to the operative statutes, Maine

has the authority and responsibility to establish WQS for all ofthe waters of the State, including

any waters within or near Indian territories, and the statutes do not permit EPA or any of the

Maine Tribes to set WQS in the State's stead, as is more fully explained below.

EPA's Current Review is Unlawful and Unnecessary

At the outset, we object to EPA's review process, which is unlawful. EPA's authority

over state water quality standards is set forth at 33 U.S.C. 1313(c)(3), which authorizes EPA to

specify any changes to the proposed standards the agency believes are necessary under the Clean

Water Act ("CWA") within 90 days oftheir submission. The standards in question here were

submitted to EPA in January of 2013, and 90 days has long since passed. Therefore, EPA has no

authority to require any changes to these standards in connection with their federal approval.

Additionally, there is no legitimate reason for EPA to establish a separate federal notice

and comment process concerning these proposed standards. In its notice EPA says it is soliciting

comment "in case" some members of the public were not aware that the State intended to apply Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 2 of 11 PagelD 150

these standards to Indian waters. As the state rulemaking record makes clear, and as EPA knows

well given its own participation in that process, one of the central issues commenters addressed

was whether the standards were sufficiently protective of Indian subsistence fishers. These

commenters included the Penobscot Nation and EPA, both of which submitted extensive

comments, as well as the Houlton Band of Maliseet Indians. The record shows that Maine's

Native American community was well aware of the rulemaking and actively participated in it.

This being the case, it is a mystery which "members of the public" EPA believes may have

missed their chance to comment at the state level because they were unaware these standards

would apply to Indian territories. Once again EPA is acting as a "roving commission,

presumably in order to justify an outcome where EPA has some new-found WQS jurisdiction.

See Michigan v. EPA, 268 F.3d 1075, 1084-86 (D.C. Cir. 2001). Courts have been highly critical

of EPA for similar maneuvering on state-tribal issues. Id. (criticizing and rejecting EPA effort to

"create" jurisdictional controversy in order to justify imposition of a federal Clean Air Act

program in "disputed" territory).

We also note that EPA has made no finding that Maine has inadequate authority to adopt

and enforce its WQS within or adjacent to Indian territories. EPA cannot assert federal authority

when it merely professes uncertainty regarding a state's jurisdiction over tribal territory; it must

first make a formal finding that a state lacks jurisdiction. Michigan, 268 F.3d 1075, 1084-86, As

the agency is surely aware, such a finding is precluded not only by the express terms of the MIA

and MICSA, but also by the First Circuit Court of Appeals ruling in Maine v. Johnson, 498 F.3d

37 (1g Cir. 2007).

Pursuant to the MIA, Maine's environmental regulatory authority applies uniformly

throughout the State, including to Indian lands and waters. 30 M.R.S.A. 6204. When EPA Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 3 of 11 PagelD 151

denied Maine delegation of the National Pollution Discharge Elimination System ("NPDES")

the First program as to three tribal facilities on the grounds that the State lacked jurisdiction,

Circuit vacated the decision, finding that the MIA is "about as clear as is possible" in conferring

jurisdiction on the State over Indian lands and waters. Johnson, 498 F.3d at 43. EPA's

reluctance to acknowledge the State's authority to adopt and enforce its WQS in Indian Territory

today is reminiscent of the agency's now discredited decision-making on the State's NPDES

application, but is inexplicable in light of the Johnson decision, which provides clarity on the

jurisdictional issue.

EPA's Historical Treatment of Maine's Proposed WQS

For years, both before and after the 1980 passage of MIA and MICSA, Maine adopted

and revised its WQS, submitted them to EPA for federal approval, and EPA acted on them, all

For in without any mention of an issue regarding jurisdiction over Indian territories.' example

1986, Maine substantially revised and strengthened its WQS to protect its water resources and

Four years after the passage ofthe Settlement Acts, EPA issued its 1984 "Policy for the Administration of Environmental Programs on Indian Reservations ("1984 Policy"), available at http://www.epa.gov/tribal/pdgindian-policy-84.pdf. That document specifically acknowledged that a state could have "an express grant ofjurisdiction from Congress sufficient to support delegation to State Government." 1984 Policy at 2. This language is a clear reference to settlement acts such as MICSA. Not suiprisingly, Maine commented on a draft ofthat document to make that connection, explaining "that a settlement act conferred state authority over the Penobscot Nation and the Passamaquoddy Tribe and thus 'ruled out the possibility ofdelegating any programs to the tribes.' The Origins ofEPA 's Indian Program, 15 Kansas Journal of Law & Public Policy 191 at 294, fn. 497 (Winter 2006). EPA apparently accepted that at the time, just as it should have. But while "Nile 1984 Policy remains the cornerstone for EPA's Indian program, EPA is now acting at variance with it in Maine, since the agency continues to resist that Congress has expressly granted jurisdiction over Indian territories to the State. EPA Policy on Consultation and Coordination with Indian Tribes, May 4, 2011 at 4, available at http://www.epa.gov/tribalipdficons-and-coord-with-indian-tribes-policy.pdf

3 Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 4 of 11 PagelD 152

designated uses. Me. Pub. L. 1985, c. 698, 15, now as amended 38 M.R.S.A. 464 et seq.

These standards provided various classifications for different levels of protection, and

specifically applied to every surface water in Maine, including waters in or near Indian

territories, such as the Penobscot River. Id. at 464(7). None of the standards or designated

uses mentioned or provided any special protection to tribal interests or sustenance fishing. Id.

EPA raised various unrelated concerns regarding these standards and their application to various

waters, including those in or near Indian territories, without any mention that applying these

standards to Indian territories required special EPA approval or triggered some different level of

scrutiny.2 In a letter dated April 24, 1987, EPA specifically discussed standards for the

Penobscot River and its West Branch, with no mention of tribal issues? Repeatedly and

consistently, EPA approved Maine's proposed standards, even though the standards expressly

applied to areas the Tribes claim to be within their territories.4

2 Letters dated July 16 and August 20, 1986, from EPA Regional Administrator, to DEP Commissioner (Exhibit (Ex.) 3).

3 Letter dated April 24, 1987, from EPA Regional Counsel to Counsel to the Governor of Maine (Ex. 4).

Letters dated June 28, 1999, from EPA Director, Office of Ecosystem Protection, to Acting DEP Director, Land and Water Quality (Ex. 11); March 25, 1993, from Acting EPA Regional Administrator to DEP Commissioner (Ex. 9); April 12, 1993, from EPA Chief, Water Quality Branch to DEP Commissioner (Ex. 10); December 20, 1990, from EPA Regional Administrator to DEP Commissioner (Ex. 8); May 11, 1989, from EPA Assistant General Counsel to Maine Deputy Attorney General (Ex. 7); November 3, 1988, from EPA Director, Waste Management Division, to DEP Director, Bureau of Water Quality Control (Ex. 6); May 21 and August 31, 1987, from EPA Regional Administrator to DEP Commissioner (Ex. 5). Moreover, EPA's earlier communications regarding Maine's WQS also did not mention any issue regarding tribal lands, waters or fishing rights. Letters dated November 12, 1985, from EPA Deputy Regional Administrator to DEP Commissioner (Ex. 2); February 20, 1985, EPA Regional Administrator to DEP Commissioner (Ex. 1).

4 Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 5 of 11 PagelD 153

At about the time Maine filed its application for NPDES delegation, EPA for the first

time included language in its WQS approval letters indicating that the new and revised standards

were approved except as to "Indian territory."5 Maine has now repeatedly and in writing asked

EPA to explain the legal basis for its refusal to approve its WQS as to Indian territory, asked

which water bodies the agency considers to be within Indian territory, and asked what standards

apply there if in fact Maine's do not. EPA has refused to answer these questions directly. The

agency's handling of this issue has done nothing to help Maine citizens, including tribal

members, but has created confusion where none should exist in the wake ofthe Johnson

decision,

It should be noted here that EPA's official position today that Maine's WQS do not

apply within Indian territory because EPA never expressly approved them as applicable there

apparently has only theoretical meaning to the agency. EPA has reviewed dozens of draft

permits for discharges on the Main Stem of the Penobscot River, including for a facility on the

Penobscot Reservation at Indian Island, but has never once taken the position that Maine's

generally applicable WQS did not in fact govern these applications. Of course, EPA could never

take that position because if it did, it would have to point to some alternative set of standards that

apply instead of Maine's, and would have to explain the legal basis for all of this, which is not

possible. So while EPA on the one hand maintains that it has never approved Maine's WQS as

to Indian territory, on the other hand it continues to apply Maine's standards to each and every

CWA proceeding in the State.

5 Letters dated February 9, 2004 from Linda M. Murphy, Director, Office of Ecosystem Protection to DEP Commissioner; April 14, 2004 from Linda M. Murphy, Director, Office of Ecosystem Protection to DEP Commissioner and January 25, 2006 from Linda M. Murphy, Director, Office of Ecosystem Protection to DEP Commissioner (Ex. 12). Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 6 of 11 PagelD 154

Similarly, whenever EPA itself issues a NPDES permit, the CWA requires a certification

from the state pursuant to section 401, 33 U.S.C. 1341, that the discharge complies with the state

water quality standards and state law requirements. PUD No. 1 ofJefferson Co. v. Washington

Dep't ofEcology, 511 U.S. 700, 704 (1994). Maine has been issuing section 401 certification

throughout the state, including in areas in or near claimed tribal waters, without any hint from EPA

that jurisdiction to do so is lacking.

Maine's Authority under the MIA and MICSA to Establish WQS in Indian Territories

The Federal Water Pollution Control Act Amendments of 1972 instituted "a

comprehensive program for controlling and abating water pollution." Train v. City ofNew York,

420 U.S. 35, 37 (1975). In establishing this regulatory framework, Congress was careful to

"recognize, preserve, and protect the primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution." CWA 101(b), 33 U.S.C. 1251(b).

It is now well-established that Maine has primary jurisdiction over the waters in the State,

including any waters in or near Indian territory. The 1980 Settlement "provided that 'with very

limited exceptions, [the Tribe] would be 'subject to' Maine law...." Johnson, 498 F.3d at 42.

One of the cornerstones of the MIA establishes:

30 M.R.S. 6204. "[T]he then Interior Secretary's state[d] to Congress that the Settlement Acts

were 'intended to effectuate the broad assumption ofjurisdiction over Indian land by the State of

Maine.' H.R. Rep. 96-1353 at 28, reprinted in 1980 U.S.C.C.A.N. 3786, 3803-3804 (report of

6 Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 7 of 11 PagelD 155

the Department of the Interior), Johnson, 498 F.3d at 45 n, 10, This jurisdictional principle was

confirmed and approved in MICSA. 25 U.S.C. 1725.

At the time the Settlement Acts were adopted, the Interior Department, largely responsible for relations with Indian tribes, told Congress that the southern tribes' lands would generally be subject to Maine law. H.R. Rep. 96-1353 at 28 (report ofthe Department of the Interior). The Senate Report, adopted by the House Report, declared that "State law, including but not limited to laws regulating land use or management, conservation and environmental protection, are fully applicable as provided in [the proposed bill] and Section 6204 of the Maine Implementing Act, S. Rep. 96-957 at 27; H.R. Rep. 96-1353 at 20.

Johnson, 498 F.3d at 43-44 (emphasis added). Congress understood that under the new law

Maine would retain its environmental regulatory authority over the Tribes and their territories,

The Senate Report stated that "for example, although the federal Clean Air Act, 42 U.S.C. 7474, accords special rights to Indian tribes and Indian lands, such rights will not apply in Maine because otherwise they would interfere with State air quality laws which will be applicable to the lands held by or for the benefit of the Maine Tribes. This would also be true of police power laws on such matters as safety, public health, environmental regulation or land use, S. Rep. 96-957 at 31.

Id. at 44 n.7.

In the face of this, EPA has previously asserted in dicki that it has a "trust responsibility"

to "take over promulgation of' WQS insofar as they affect tribal waters (68 Fed, Reg. 65052,

65067-68 (November 18, 2003)). Maine strongly disagrees. First, "reservation" lands in Maine

are not held in trust by the federal government. S.Rep.No. 96-157, 96th Cong., 2d Sess. ("Senate

Report") 15 (1980); II.R.Rep, No. 96-1353, 96th Cong., 2d Sess. 15-16, reprinted in 1980

U.S.C.C.A.N. ("House Report") at 3791; Bangor Hydroelectric Co. (Milford), 83 FERC P61,037,

61,085-86 (1998).6

6 The federal Department of Interior ("DOI") has previously stated that fee title to the islands in the Penobscot River was held by Maine in trust for the benefit of the Penobscot Indian Nation. Bangor Hydroelectric Ca (Milford), 83 FERC at 61,086. See also, Mattaceunk Hydroelectric Project, P-2520-072, Scoping Document 2, at 2.2.1 (2013), available at Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 8 of 11 PagelD 156

Second, to the extent that EPA could ever lawfully invoke a federal "trust responsibility"

towards Indian territory in a manner that affects state jurisdiction under the CWA, such trust

responsibility would not apply in Maine. Title 25 U.S.C. 1725(h) of the federal Settlement Act

makes clear that federal Indian law that would otherwise affect or preempt the jurisdiction of

Maine relating to "environmental matters" has no effect in Maine. Id. 1735(b).

Likewise, in 1987, Congress amended the CWA by, inter alia, adding section 518, which

sets forth tribal rights and responsibilities. Section 518 allows Indian tribes to apply for

"treatment as state" status. 33 U.S.C. 1377(e). Generally, outside of Maine, a tribe may be

granted jurisdiction to regulate water resources within its borders in the same manner as states.

This includes the authority to establish tribal water quality standards subject to EPA approval,

and the authority to issue NPDES permits for discharges into such waters. City ofAlbuquerque

v. Browner, 97 F.3d 415 (9th Cir. 1996). Because it would affect Maine's regulatory jurisdiction

and it was not made explicitly applicable to Maine, Section 518 does not apply in Maine, 25

U.S.C. 1735(b). Indeed, Congress considered this very issue:

This section does not override the provisions of the Maine Ind,ian Claims Settlement Act (25 U.S.C. 1725). Consistent with subsection (h) of the Settlement Act, the tribes addressed by the Settlement Act are not eligible to be treated as States for regulatory purposes...

Water Quality Act of 1987, Section-by-Section Analysis, reprinted at 2 1987 U.S.C.C.A.N. ("1987

CWA Analysis"), at 5, 43 (emphasis added). EPA itself addressed the issue in a 1993 guidance

document:

http://elibrarylere.gov. ("Beginning with the 1984 relicensing of the West Enfield Project, the Commission has consistently concluded that the United States does not have a proprietary interest in the aboriginal lands (i.e. the river islands) of the Penobscot Nation, and so these lands are not a "reservation" within the meaning ofthe Federal Power Act.") 8 Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 9 of 11 PagelD 157

[The provisions of the 1980 Federal Settlement Act] seem to invalidate federal laws that might give the Penobscots special status if it would 'affect or preempt' the State's authority, including the State's jurisdiction over environmental and land use matters...

fAjny post-1980 special federal legislative provisions that might give Indians special jurisdictional authority.. could not provide the Penobscots with such jurisdictional authority unless the federal legislation specifically addressed Maine and made the legislation applicable within Maine.

U.S. EPA Memorandum: Penobscot's Treatment as a State Under CWA, 518(e), at 8 (July 20,

1993) ("1993 EPA Memorandum") (emphasis added) (Ex. 13).

Additionally, EPA has no "trust responsibility" toward Indian tribes except to the extent

that Congress has created it by statute. The First Circuit has explained that the federal "trust

responsibility" toward the Maine Tribes is fully and exclusively expressed through the substance of

the statutes and regulations that an agency is charged with administering. Nulankeyutinonen

EPA to Nkihttaamikon v. Impson, 503 F.3d 13, 31 (1st Cir. 2007), To the extent that attempts

breathe into this "trust responsibility" concept substantive or procedural requirements that are not

in embodied in statute, the agency is acting unlawfully. This conclusion is particularly compelling

the context of the CWA, because there is no written set of standards narrative, numerical or

with this "trust otherwise that anyone may review to assess whether a particular action complies

responsibility." For the agency to give this concept independent substantive or procedural

meaning, therefore, is for the agency to grant itself license to handle any tribal issue in whatever

That is the way it sees fit, and declare the result to be compelled by a "trust responsibility." height

of arbitrary and capricious decision-making. Michigan, 268 F.3d at 1085 (rejecting EPA argument

that its interpretation of the Clean Air Act is correct simply because it favors Indian interests).

is The notion that EPA has some free-floating, undefined, all-encompassing trust responsibility that Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 10 of 11 PagelD 158

understood only by the agency simply cannot stand, because it would effectively overwrite and

render meaningless express provisions of the MIA and MICSA.

In sum, it is plainly obvious to all who wish to see that any waters arguably within Indian

territories are to be treated like all other waters within Maine, the State has clear authority to issue

WQS for these waters, and EPA has no trust responsibility that authorizes the agency to apply

heightened scrutiny to Maine's WQS before approving them as to Indian Territory.

The Substantive Adequacy of Maine's WQS revisions

The CWA has deep roots in Maine, as Senator Edmund Muskie was the law's chief

architect. Conistent with this legacy, Maine takes seriously its responsibility and

commitment to protect water quality on behalf of all citizens throughout Maine, including

sensitive subpopulations that engage in sustenance fishing. For reasons expressed in DEP's

submission to EPA in support of the revised standards, which we incorporate by reference,

the proposed standards establish human health criteria based on technically sound and

objective data and analysis regarding cancer risk, fish consumption rates and

bioconcentration. EPA itself has relied on some of the same studies and the same analytical

approach in other contexts, and the human health criteria are grounded in the empirical, local

population-specific data that EPA prefers. The rulemaking record shows that the DEP took

into account all the evidence and argument that was presented, including by the Maine Tribes

and EPA itself, and provided a reasoned decision supported by that record. On the merits,

there is no basis for EPA to disapprove, require revisions to, or otherwise second-guess the

outcome of DEP's rulemaking here,

10 Case 1:14-cv-00264-JDL Document 1-3 Filed 07/07/14 Page 11 of 11 PagelD 159

JANET T. MILLS ATTORNEY GENERAL Dated: September 13, 2013

Paul Stern Deputy Attorney General Chief, Litigation Division Gerald D. Reid Assistant Attorney General Chief, Natural Resources Division 6 State House Station Augusta, ME 04333-0006 (207)626-8800

11 Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 1 of 9 PagelD 160

.11., REGIONAL OFFICES 11 84 HARLow ST. 2ND FLOOR MAINE t. r BANGOR, 04401 --7---;{., TEL. (207) 941,3070 k, F. (207) 941,3075 JANET T. M11.1S ATTORNEY GEWRAL 415 CONGRESS ST., STE. 301 PORTLAND, MAINE 04101 TEL: (207) 822.0260 Fekx: (207) 822,0259 STATE OF MAINE 19 ACCESS HIGHWAY, Sm. 1 TEL 626-8800 OFFICE OF TBE ATTORNEY GENERAL (207) CARIBOU, MAINE 04736 TTY USERS CALL MAINE RELAY 711 6 STATE Houst STATION TEL: (207) 496-3792 AUGUSTA, MAINE 04333-0006 Fax: (207)496.3291

July 23, 2013

By certified mail

Gina McCarthy, Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, NW Washington DC 20460

Eric Holder, Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington DC 20530

Re: 60-Day Notice of Intent to Sue for Failure to Perform Nondiseretionary Duties under the Clean Water Act

Dear Administrator McCarthy and Attorney General Holder:

In 1980 the Federal Government, the State of Maine ("Maine"), the Penobscot Indian Nation and the Passamaquoddy Tribe negotiated a comprehensive settlement of Indian. land claims to an area consisting of approximately two4hirds of Maine's land.mass. Congress approved that settlement in the Maine Indian Land Claims Settlement Act, 25 U.S.C. 1721 et Claims seq., which ratified and confirmed the Act to Implement the Maine Indian Land Settlement Act, set forth in Maine law at 30 M.R.S. 6201 et seq. ("the Settlement Acts"). These laws create and defme a nationally unique state-tribal relationship.

Of particular relevance to this letter, the Settlement Acts unambiguously confirm Maine's U.S.C. regulatory authority over Indian lands and natural resources. 30 M.R.S. 6204; 25 1725(b)(1). These laws provide that Maine's authority to regulate environmental matters applies uniformly throughout the State, without distinction as to tribal and non-tribal lands and natural the First Circuit Court resources, and this premise is foundational to the Settlement Acts. When the U.S. of Appeals was called upon to interpret and apply these provisions in a case hyvolving Enviromnental Protection Agency's ("EPA") refusal to recognize Maine's authority to implement the Clean Water Act in Indian,tenitory, the Court held that the Settlement Acts are on the State "about as explicit.. as is possible" in cgiferring environmental regulatory authority over Indian lands and natural resources. Maine v. Johnson, 498 F,3d 37, 43 (1st Cir. 2007). Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 2 of 9 PagelD 161

Consistent with Federal law, each year Maine submits to EPA new and amended water quality standards for EPA's review and approval. 33 U.S.C. 1313. For many years EPA approved these standards without distinction as to Indian lands and waters, as the Settlement Acts require. However, shortly before the Johnson case was filed, EPA for the first time began inserting language into its approval letters stating that its decision "does not extend to waters that are within Indian territories or lands." Despite the First Circuit's emphatic ruling against EPA in the Johnson case, and despite Maine's repeatedly and explicitly requesting that EPA approve its water quality standards as being effective throughout the State as the Settlement Acts require, EPA continues to refuse to approve these standards as'to "Indian territories,

On May 16, 2013, EPA failed to take action approving Maine's most recent submission, filed on January 14, 2013, seeking approval ofrevisions to Maine's surface water quality standards for waters "within Indian territories, (enclosed as Exhibit A),

Title 33 U.S.C. 1313(c)(3) provides:

If the Administrator, within sixty days after the date of submission of the revised or new [WQS], determines that such standard meets the requirements of this chapter, such standard shall thereafter be the water quality standard for the applicable waters of that State. Ifthe Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this chapter, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements, If such changes are not adopted by the State within, ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection.

EPA made no finding of inadequate authority to administer or enforce the program within Indian territories, Indeed, the Johnson decision would preclude such a finding, Neither has EPA in order meet the specified any changes to Maine's standards that it might claim are necessary requirements of the Clean Water Act. EPA, in its own words, states that it "will retain responsibility under Section 303(e) and 303(d) ofthe Clean Water Act for those waters." Those provisions of the Clean Water Act afford EPA that authority only if a state fails to adopt EPA's requested changes, but EPA has made no such requests here; therefore EPA has no authority to "retain responsibility" under these circumstances. Simply put, EPA is acting outside of the law.

Maine has repeatedly requested in writing that EPA identify whieh•water bodies it considers to be "within Indian territories" in Maine, and to explain what water quality standards it believes apply to those water bodies ifin fact Maine's do not. EPA has refused to answer these fundamental questions. EPA's failure to act or otherwise explain itself creates uncertainty for Maine, the Maine Tribes, Maine's towns, Maine's citizens and Maine's regulated community the "Indian as to how the Clean Water Act is to be implemented and enforced in vicinity of territories" in Maine. More broadly, EPA is promoting the misconception that some different set of rules, rather than the State's generally applicable statutes and regulations, applies to Indian federal court's lands and natural resources in Maine. This misconception flies in the face of the

2 Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 3 of 9 PagelD 162

ruling in Johnson and fundamentally undeimines one of the core purposes of the Settlements Acts,

Against this background, Maine hereby provides this notice of its intent to sue EPA for failure to perform a nondiscretionary duty pursuant to 33 U,S.0 1365(b)(1) of the Federal Water Pollution Control Act, specifically for its failure to act on Maine's January 14, 2013, application for approval of new and revised water quality standards as it relates to Indian lands and waters, all as required by 33 U.S.C. 1313.

The identity of the person giving this Notice is the State ofMaine, which is a sovereign state, and which is represented in this matter by its Attorney General, Janet T. Mills, whose address and contact information are as follows:

Janet T. Mills Attorney General State of Maine 6 State House Station Augusta, ME 04333-0006 Tel.: (207)626-8599 Fax: (207)287-3145

Counsel of record in this matter and their contact information are as follows:

Paul Stern Gerald D. Reid Deputy Attorney General Assistant Attorney General Chief, Litigation Division Chief, Natural Resources Division 6 State House Station 6 State House Station Augusta, ME 04333-0006 Augusta, ME 04333-0006 Tel. (207)626-8568 Tel, (207)626-8545 Fax: (207)287-3145 Fax: (207)626-8812 paul.d,[email protected] jerry.reid@maine,gov

If EPA does not comply with its non-discretionary duty to act on Maine's application for approval of its water quality standards Indian territories within 60 days, Maine intends to file suit in federal court to compel EPA to comply with the law.

Sincerely, 9ee„.477' 141-47) Janet T. Mills Attorney General Enclosure

3 Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 4 of 9 PagelD 163

cc: The Honorable Paul LePage The Honorable Susan Collins The Honorable Angus King The Honorable Michael Michaud The Honorable Chellie Pingree Kirk Francis, Chief Reubin Cleaves, Governor Joseph Socobasin, Chief Brenda Commander, Chief Richard Getchell, Chief Curt Spalding, EPA Region I Administrator Commissioner Patricia Aho Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 5 of 9 PagelD 164

Exhibit A

00s7,0 Zb get -f) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Region 1. traqui0 6 Post Office Square, Su Ile 100 PROI Boston, MA 02109-3912

May 16, 2013 Patricia W. Aho, Commissioner Maine Department of Environmental Protection 17 State House Station Augusta, ME 04333-0017 Re: Review and Action on Water Quality Standards Revisions Dear Commissioner Ahot By letter ofjanuary 14, 2013, the Maine Department of Environmental Protection ("DEP") submitted revisions of the State's surface water quality standards to Region 1 of the United States Environmental Protection Agency ("EPA" or "Region") for review. The revisions were adopted by the DEP on July 13, 2012, 13y letter to EPA dated January 9, 2013, Maine's Assistant Attorney General in the Natural Resources Division certified- the revisions as having been duly adopted pursuant to state law. The Region has completed its review of the submitted revisions to the arsenic criteria as further described below. Pursuant to Section 303(0)(2) of the Clean Water Act and 40 C, F.R. Part 131, I hereby as set approve the following water quality standards revisions to 38 MRSA §420, sub-§2 forth in P.h. 2011, Ch, 194 (LD 515) "An Act To Review State Water Quality Standards" and CMR 584, Surface Water Quality Criteria for Toxic Pollutants, 1. Revision of the cancer risk level used to calculate the human health criteria for arsenic from one in 1, 000,000 to one in 10,000 and 2, Revision of the arsenic criteria to protect human health from 0,012 to 1.3 .1g,/1., for the consumption of water and organisms and from 0.028 to 3.7 f.ig/L for the consumption of organisms only.

We arc still reviewing revisions to the acrolein and phenol criteria and aro not taking action on those revisions at this time. EPA acknowledges your request to approve the revisions for all waters, including waters that are within Indian territories. Today's approval does not extend to waters that are within Indian territories, EPA intends to publish a notice explicitly seeking public input Indian on the applicability of the revised arsenic criterion in question to waters within territories before completing its review, Therefore, EPA is taking no action to approve or disapprove the State's revisions with respect to those waters at this time, in the meantime, EPA will retain responsibility under Sections 303(c) and 303(d) of the Clean Water Act for those waters, Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 6 of 9 PagelD 165

Discussion literature on the factors In implementing LD 515, DEP reviewed the available scientific human health uses that are used to derive water quality criteria to protect including water. DEP also fishing, recreation in and on the water, and, where applicable, drinking derive arsenic reviewed data specific to waters in Maine and used the information to criteria for Maine's waters.

cancer in skin or internal organs such as Arsenic is a known carcinogen that may cause EPA states that the liver, lungs and bladder.' In its 304(a) criteria reeominendations, is the case for all arsenic criteria should be applied as inorganic arsenic.2 As pollutants, local and data E'PA's 2000 Human Health Methodology encourages states to use regional criteria, including when making risk management decisions inherent in developing risk level and decisions inherent in selecting the appropriate fish consumption rate, target bioaccumulation factor.3 the same Maine's revised numeric criteria for arsenic were derived using general recommended criteria methodology and equations used to calculate EPA's current 304(a) used to calculate the criteria for carcinogens. The revised criteria and the input variables that'follow those components are summarized in Table 1 below, The paragraphs explain of Maine's new arsenic criteria. of the calCulation that have been revised to form the basis LD 515 in 2011 directing DEP to Cancer Risk Factor (RF): The State of Maine enacted arsenic based on a cancer risk revise Maine's human health water quality criteria for RI? of 1 in 000. EPA's recommended factor oft in 10,000 rather than the previous 1, 000, states that I in 1,000,000 or 1 in methodology for the derivation ofwater quality criteria factors for the and that highly 100, 000 may be acceptable cancer risk general population in 000 risk level.' exposed populations should not exceed a 1 10, FCR the 94th Fish Consumption .Rate (FCR.): Maine's previous 32.4 8/day represents 95th for the total percentild for Native American anglers in Maine and the, percentile a of licensed Maine anglers5. angler population in Maine, based on data from 1990 survey 138 which is the 99th of In deriving the new arsenic criteria, DEP used g/day, percentile are of subsistence fisherS, a highly this survey, to ensure that the criteria protective EPA recommendations for exposed population. This approach is consistent with

Profile for Arsenic. Atlanta, Agency for Toxic Substances and Disease Registry (ATSDR). Toxicological Georgia, August 2007. Available at: Invi4ww,atsdr.cdcgovisubstanecOoNsnbNianee.asoloxid=3 health criteria for arsenic 1992, EPA, National Recommended Water Quality Criteria, human published available at: http://vmer.epa.goviscitechissvguidance/standardskriteriWcurrent/index.cftn 3 Criteria the Protection ofHuman 8,1 EPA. 2000. Methodologyfor Deriving Ambient Water Quality for D.C. EPA-822-13-00-004. Wealth, U.S. Environmental Protection Agency, Office of Water, Washington, page 2-6. Available at: littp://www.cpa.govAvaterscience/criterittibumanhealtlilmotheclicomplete&df the Protection of Human EPA. 2000, Methodologyfor Deriving Ambient Water Quality Criteriafor D.C. EPA-82243-00.004. Wealth. U.S. Environmental Protection Agency, Office of Water, Washington, page 2-6. Available at: hitp::7www.epa.gt.lviwaterscienceicriterialimmanhealththodieompleto.pdf 5 Freshwater Fish by Maine Ebert, E.S., R.E. Keenan, 1W. Knight, and N.W. Harrington, Consumption of Anglers, proceedings of the 1992 TAPPI Environmental Conference.

2 Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 7 of 9 PagelD 166

Table 1 Comparison of Maine's Previous and Revised Arsenic Criteria Parameter 2005 criteria 2012 criteria

Cancer Risk Factor (RF) 1 x 10'6 lx I 0-4 Body Weight (I3W) 70 kg 70 kg Cancer Potency Factor (q1*) 1.75 mg/kg/day_ 1.75 mg/kg/day Water Consumption (DW) 2 Uday 2 Lklay Bioeoncentration Factor (BCF) 44 L/kg._ 26 Likg Fish Consumption jt_e_TCD. 32.4_ g/day 138 giday 6 Inorganic Factor (IF) none 30%

Criteria to protect human health for consuming 0,012 pg/L 1.3 mg/L, fish and drinking water (water + organism)

1, 000 x RF x BW ql* x IDW (BCF x FCR x IF)] Criteria to protect human health for consuming 0.028 ag/I, 3.7 pg/I, fish only -11,000 x RF BW q I* x I3CF x FCR x IF estimating fish consumption rates for subsistence fishers and is appropriate to ensure that highly exposed subpopulations are not exposed to a risk level greater than 1 in 10,000, Inorganic Factor (IF): Arsenic is present in the environment and in fish tissue in both organic and inorganic forms. Inorganic arsenic is the form that is most toxic to humans and used to develop toxicity data for cancer and other end points, The IF is the ratio of inorganic arsenic to total arsenic.in fish tissue. DEP conducted its own literature search which found a range of observed IF values from 10 to 30%. According to DEP's review, the lower end of this range is based on average results, whereas maximum amounts are observed to approach or exceed the upper end of the range depending on species and other factors. DEP chose the more protective end of this range.7 Bioconcentration Factor (BCF): Bioconcentration refers to the uptake and retention of a chemical by an aquatic organism from water. The BCF is the ratio of the concentration of a substance in the tissue of an aquatic organism to its concentration in the ambient water in situations where the organism i.s exposed through the water only and the ratio does not

6 The 2005 criteria did not include adjustment to the criteria based on an assumption of a ratio of inorganic to total arsenic. Therefore, 1P was not included in the 2005 calculation. Instead, DEP assumed a ratio of 50% inorganic arsenic to total arsenic in developing water quality based effluent limits for dischargers subject to licensing under Maine's National Pollution Discharge Elimination System. EPA understands that with the adoption of thc new arsenic criteria, DEP will no longer malw those adjustments. 'See 1127/2011 email from Robert D. Stratton, DEP, to Ellen Weitzler and Stephen Silva, EPA Case 1:14-cv-00264-JDL Document 1-4 Filed 07/07/14 Page 8 of 9 PagelD 167

change substantially over time. Maine has updated the BCF used for the arsenic criteria based on a 2011 BCF derivation for arsenic conducted by EPA in support of an arsenic criteria revision in Oregon! The 2011 derivation used a larger set of studies than were available in 1980 when the 44kg/L BCF (used in the 2005 Maine arsenic criteria) was developed. EPA approves of the WQS revision to the arsenic criteria on the basis of the demonstrated use of available sound science, including state specific data, to derive the new criteria, We look forward to continued cooperation with Maine in the development, review and approval of water quality standards pursuant to our responsibilities under the Clean Water Act. Please contact Ellen Weitzler (617-918-1582) ifyou have any questions. S incerely,

'ee Kenneth Moraff, Acting Director Office of Ecosystem Protection

cc: Brian Kavanah, MEDEP Tracy Bone, EPA 5813 Jennie Bridge, EPA

EPA, Rcgion I 0, Thchnical Support Document for A Won on the State of Orego»'s New and Revised Hwnan Health Water Quality Criteriafor Toxics and Associated Implementation Provisions Submitted July 12 and 21, 2011, October 17, 2011

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4. Restricted Delivery? (far Fee) 0 Yes 2. Article Number 7000 1670 (Transfer from service labe0 0009 2389 7120

PS Form 3811, March 2001 Domestic Return Receipt lO2596-0144-1p4

f-SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Tmmimmimm.1 Complete items 1, 2, and 3. Also complete A. Received by (Please Print Clearly) B. item 4 if Restricted Delivery is desired. Print your name and address on the reverse letrlivery so that we can return the card to you. Signature Attach this card to the back of the mailpiece, Agent or on the front if space permits. f3 .10 vjihessee D. Is der .-ry address different from item 1? 1. Article Addressed to: ye if YES, enter delivery address below: 0 No GINA MCCARTHY ADMINISTRATOR US ENVIRONMENTAL PROTECTION AGENCY ARIEL RIOS BUILDING 1200 PENNSYLVANIA AVENUE NW 3. Service Type WASHINGTON DC 20460 KKCertified Mail 0 Express Mall 0 Registered 24 Return Receipt for Merchandise 0 Insured Malt 0 C.O.D.

4. Restricted Delivery? (Extra roe) 0 Yes 2. Article Number 7000 1670 0009 2389 7113 (Transfer from service label) PS Form 3811, March 2001 Domestic Return Receipt 102595-o14.1-1424