EPA's Proposed Water Quality Standards Rule Applicable to Maine
On April 20, 2016, the Environmental Protection Agency (EPA) proposed federal water quality standards that would apply to certain waters in Maine in place of existing Maine standards that EPA has disapproved. The proposed rule would significantly change, and make more stringent, 96 human health criteria as well as other criteria and standards relating to bacteria, ammonia, pH, temperature, phenol, and the State’s mixing zone statute. For human health criteria, EPA intends to use a 284 grams per day fish consumption rate coupled with the most protective risk level of 10-6.
Aside from using the most conservative risk assessment factors possible, EPA has not clearly defined what the ultimate geographic scope of this rule would be. Support documents accompanying the rule note that the rule would apply to “waters in Indian lands” (waters within or adjacent to the boundaries of Indian reservations or Indian trust lands) and waters outside Indian lands where the designated use of sustenance fishing applies. Collectively, these waters would include the entire main stem of the Penobscot River, the St. Croix River and its branches, and portions of any other rivers or streams that are adjacent to Indian trust lands.
EPA has preliminarily identified 33 dischargers to waters in Indian lands or their upstream tributaries that are affected by the proposed rule changes. See attached Exhibit 4-1. This list could expand if the federal government purchases additional trust lands for any of the four Maine tribes, anywhere in the State of Maine.
As noted above, EPA is proposing to tighten several criteria, in addition to human health criteria. The changes to these criteria, including ammonia, pH, temperature, phenol, and bacteria, have nothing to do with the fish consumption rates or Indian sustenance fishing but, rather, relate to impacts to aquatic life. Because they relate to aquatic life, there is nothing to prevent EPA or Maine DEP from later applying the criteria statewide, given that the same aquatic life that are present on or adjacent to Indian reservations are present everywhere else in the State.
For these reasons, it is important that EPA receive legal and technical comments from potentially affected dischargers, to prevent these proposed rules from being implemented. The use of a 284 grams per day fish consumption rate and other proposed changes based on aquatic life impacts would establish an unsupported, unscientific basis for further water quality rulemakings.
Pierce Atwood is representing a coalition of potentially-affected dischargers and will, with assistance from technical experts, prepare detailed comments to submit to EPA. Those comments are currently required to be submitted by June 20, 2016.