Region 1 NPDES Permit Quality Review
Maine
Final
January 12, 2018
U.S. EPA Region 1
5 Post Office Square, Suite 100
Boston, MA 02109-3912
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tents
I. PQR BACKGROUND 4
II. STATE PROGRAM BACKGROUND 8
A. Program Structure 8
B. Universe and Permit Issuance 9
C. State-Specific Challenges 13
D. Current State Initiatives 13
III. CORE REVIEW FINDINGS 13
A. Basic Facility Information and Permit Application 13
1. Facility Information 13
2. Permit Application Requirements 14
B. Technology-based Effluent Limitations 15
1. TBELs for POTWs 15
2. TBELs for Non-POTW Dischargers 15
C. Water Quality-Based Effluent Limitations 16
D. Monitoring and Reporting 17
E. Standard and Special Conditions 18
F. Administrative Process 19
G. Administrative Record 20
1. Documentation of Effluent Limitations 21
H. National Topic Areas 23
1.Nutrient s 23
2. Pesticides 26
3. Pretreatment 27
4. Stormwater 29
IV. REGIONAL TOPIC AREA FINDINGS 31
D. Toxics 38
V. ACTION ITEMS 40
A. Basic Facility Information and Permit Application 41
B. Technology-based Effluent Limitations 41
C. Water Quality-Based Effluent Limitations 41
D. Monitoring and Reporting 42
E. Standard and Special Conditions 42
F. Administrative Process (including public notice) 42
G. Documentation (including fact sheet) 43
H. National Topic Areas 44
1. Nutrients 44
2. Pesticides 45
3. Pretreatment 45
4. Stormwater 45
I. Regional Topic Areas 46
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1. Mixing Zones 46
2.. Bacteria 46
3. Whole Effluent Toxicity (WET) 47
4. Toxics 47
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I. I "J I
National Pollutant Discharge Elimination System (NPDES) Permit Quality Reviews (PQRs) are an
evaluation of a select set of NPDES permits to determine whether permits are developed in a
manner consistent with applicable requirements established in the Clean Water Act (CWA) and
NPDES regulations. Through this review mechanism, EPA promotes national consistency,
identifies successes in implementation of the NPDES program and identifies opportunities for
improvement in the development of NPDES permits.
EPA's review team, consisting of three EPA Regional staff, two EPA Headquarters staff and one
contractor, conducted a review of the Maine NPDES permitting program which included an on-
site visit to the Maine Department of Environmental Protection (ME DEP) in Augusta, Maine on
June 15-16, 2016.
The Maine PQR consisted of two components: core permit reviews and topic area permit
reviews, which included national topics and regional topics. The core permit reviews involve the
evaluation of selected permits and supporting materials using basic NPDES program criteria.
These reviews focus on core permit quality and include a review of the permit application,
permit, fact sheet, and any correspondence, reports or documents that provide the basis for
the development of the permit conditions. Reviewers completed the core review by examining
selected permits and supporting documentation, assessing these materials using standard PQR
tools, and talking with permit writers and managers regarding the permit development process.
The core review focuses on the Central Tenets of the NPDES Permitting Program to evaluate the
Maine MEPDES program. The PQR also included conversations between EPA and the DEP staff
and mangers on program status, the permitting process, responsibilities, organization, staffing,
and program challenges the state is experiencing.
National topic area permit reviews are conducted to evaluate similar issues or types of permits
that are of national significance in all states. The national topics reviewed as part of the Maine
PQR were: nutrient requirements, the pesticide general permit, pretreatment, and stormwater
permitting.
Regional topic area reviews target regionally-specific permit types or particular aspects of
permits that are of regional or state interest. The regional topic areas selected by EPA Region 1
are: mixing zones, bacteria, Whole Effluent Toxicity (WET) and toxics (including the reasonable
potential (RP) determination process). These reviews provide important information to Maine,
EPA Region 1, EPA Headquarters and the public on specific program areas.
A total of 22 individual permits and 7 general permits were reviewed as part of the PQR. Ten
permits were reviewed for the core reviewof these, 6 permits were also reviewed for either
national (i.e., nutrients, pesticides, pretreatment, stormwater) and/or regional topic areas (i.e.,
bacteria, mixing zones, WET and toxics, including the RP determination process.
EPA Region 1 (the Region) followed the NPDES Permit Quality Review Standard Operating
Procedures (the SOP) (draft rev. July 2013) during the process of selecting permits for the Maine
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PQR. Specifically, the Region selected permits in accordance with the SOP to conduct core
permit reviews, national topic area permit reviews, and regional topic area permit reviews.
As a starting point in selecting the permits to be reviewed, the region obtained a list from EPA
Headquarters, specifically the Office of Wastewater Management, of all of Maine's individual
NPDES permits which was generated from a data pull of EPA's Integrated Compliance
Information System (ICIS). This inventory included the following information for each permit:
permit number, facility name, city, facility type (publicly owned treatment works [POTW] or
non-POTW), facility size (expressed as minor or major), date of last issuance and expiration.
EPA Headquarters also provided Region 1 with a list of all of Maine's general permits.
Additionally, ME DEP provided EPA Region 1 with listings of their individual and general NPDES
permit universe. These lists were compared to the ICIS report and any discrepancies were
noted. An email request was sent to ME DEP noting the discrepancies and requesting a
response to resolve them. ME DEP provided information to reconcile the discrepancies, which
resulted in the removal of several permits from the ICIS report (i.e., permits that had been
retired, general permits, and permits for which no origin was known-and which would be
terminated-were removed from the ICIS list), leaving an inventory of 367 permits from which
to select for inclusion in the PQR review.
Next, the remaining permits on the ICIS list were sorted according to major/minor status, then,
within the major and minor sub-groupings, the permits were sorted based on whether they
were issued to POTWs or non-POTWs. In accordance with the SOP, an emphasis was placed on
recently-issued permits in selecting permits to include in the core review. Therefore, permits
that were issued prior to March 2014 were eliminated from the list of permits to be considered.
This emphasis on recently issued permits, which was also utilized for the selection of permits to
include in the national and regional topic area reviews, was also based on the assumption that
more recently issued permits would more accurately reflect Maine's current permitting
practices.
The list of permits which met the selection eligibility criteria specified in the SOP were broken
down as follows:
TOTAL PERMITS
162
Total Major
24
Total Major -Non-POTW
5
Total Major-POTW
19
Total Minor
138
Total Minor-POTW
33
Total Minor-Non-POTW
105
In accordance with the SOP, a total of 10 permits were selected for the core review, with 8 of
the permits reviewed being those issued to major facilities and 2 being those issued to minor
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facilities. Out of the 162 permits that fit the selection criteria, 52 (32%) were issued to POTWs,
and 110 (68%) were issued to non-POTWs. Therefore, following the guidance provided in the
SOP, a total of 4 POTW permits and 6 non-POTW permits were selected for the core review to
reflect the ratio of POTWs to non-POTW permits in the state. Of the 4 POTW permits that were
selected for review, all were issued to major facilities. Of the 6 non-POTW permits that were
selected for review, 4 were issued to major facilities and 2 were issued to minor facilities. Two
of the permits were randomly selected per the SOP.
Permits were selected for the national and regional topic area reviews based on issuance date
and the review categories that they fulfilled. Six of the ten permits that were selected for the
core review were included in the national and/or regional topic area reviews. All of the permits
that were selected for the core, nutrients, bacteria, pretreatment, mixing zones, WET and toxics
(including the RP determination process) reviews were individual NPDES permits, while the
permits included in the pesticides and stormwater reviews were general NPDES permits.
Exhibit 1: Maine PQR Permits
Review Focus
NPDES ID
Facility Name
Facility Type
CORE
ME0100064
BOOTH BAY HARBOR SEWER DISTRICT
POTW-Major
CORE
ME01009511
PARIS UTILITY DISTRICT
POTW-Major
CORE
ME0100854
KENNEBEC SANITARY TREATMENT DISTRICT
POTW-Major
CORE
ME0100391
MECHANIC FALLS SANITARY DISTRICT
POTW-Major
CORE
ME0001872
WOODLAND PULP LLC
Non-POTW-
Major
CORE
ME0000159
TWIN RIVERS PAPER COMPANY LLC
Non-POTW-
Major
CORE
ME0002160
BUCKSPORTMILL LLC
Non-POTW-
Major
CORE
ME0021521
S. D. WARREN COMPANY
Non-POTW-
Major
CORE
ME00362181
MCCAIN FOODS USA, INC.
Non-POTW-
Minor
CORE
ME0037401
MAINE WOODS PELLET COMPANY, LLC
Non-POTW-
Minor
NATIONAL
TOPICS
NUTRIENTS
ME0100391
MECHANIC FALLS SANITARY DISTRICT
POTW-Major
NUTRIENTS
ME01009513
PARIS UTILITY DISTRICT
POTW-Major
NUTRIENTS
ME0102075
PORTLAND Water District - East End WWTF
POTW-Major
NUTRIENTS
ME00362183
MCCAIN FOODS USA, INC.
Non-POTW-
Minor
PESTICIDES
MEG140000
APPLICATION OF AQUATIC PESTICIDES FOR
THE CONTROL OF MOSQUITO BORNE
DISEASES
Pesticides
PESTICIDES
MEG230000
GP FOR THE DISCHARGE OF PESTICIDES
Pesticides
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Review Focus NPDES ID
Facility Name
Facility Type
PESTICIDES
MEG150000
APPLICATION OF HERBICIDES FOR THE
CONTROL OF INVASIVE AQUATIC PLANTS
Pesticides
PESTICIDES
MEG180000
APPLICATION OF PISCICIDES FOR THE
CONTROL OF INVASIVE FISHES
Pesticides
PRETREATMENT
ME0100625
SKOWHEGAN TOWN OF
POTW-Major
PRETREATMENT
ME0100048
BIDDEFORD CITY OF
POTW-Major
PRETREATMENT
ME0100854
KENNEBEC SANITARY TREATMENT DISTRICT
POTW-Major
PRETREATMENT
ME0101478
LEWISTON AUBURN WATER POLLUTION
CONTROL AUTHORITY
POTW-Major
STORMWATER
DEPLW0801
STORMWATER - MAINE CONSTRUCTION
GENERAL PERMIT
Stormwater
STORMWATER
MER050000
STORMWATER - MULTI-SECTOR INDUSTRIAL
STORMWATER GENERAL PERMIT
Stormwater
STORMWATER
MER041000
STORMWATER - MUNICIPAL SEPARATE
STORM SEWER SYSTEM (MS4) - GENERAL
PERMIT
Stormwater
REGIONAL
TOPICS
Bacteria
ME0100757
WISCASSET TOWN OF
POTW-Minor
Bacteria
ME0101214
BAR HARBOR TOWN OF
POTW-Major
Bacteria
ME0101184
KENNEBUNKPORTTOWN OF
POTW-Major
Bacteria
ME0100854
KENNEBEC SANITARY TREATMENT DISTRICT
POTW-Major
Bacteria
ME0100391
MECHANIC FALLS SANITARY DISTRICT
POTW-Major
Bacteria
ME0101478
LEWISTON AUBURN WATER POLLUTION
CONTROL AUTHORITY
POTW-Major
WET/Toxics/RP
ME0100064
BOOTH BAY HARBOR SEWER DISTRICT
POTW-Major
WET/Toxics/RP
ME0000159
TWIN RIVERS PAPER COMPANY LLC
Non-POTW-
Major
WET/Toxics/RP
ME0002160
BUCKSPORTMILL LLC
Non-POTW-
Major
WET/Toxics/RP
ME0100625
SKOWHEGAN TOWN OF
POTW-Major
Mixing Zones
ME0001911
TEX TEC INDUSTRIES
Non-POTW-
Minor
Mixing Zones
ME0002160
BUCKSPORTMILL LLC
Non-POTW-
Major
Mixing Zones
ME0021521
S.D. WARREN
Non-POTW-
Major
Mixing Zones
ME0022320
PENOBSCOT ENERGY RECOVERY COMPANY
Non-POTW-
Minor
Mixing Zones
ME0023957
ISF TRADING COMPANY
Non-POTW-
Minor
Mixing Zones
ME0037176
STEPHEN E. GRAY LODGES & INDUSTRIES
Non-POTW-
Minor
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Review Focus
NPDES ID
Facility Name
Facility Type
Mixing Zones
ME0037397
ACADIA AQUA FARMS, LLC
Non-POTW-
Minor
1Permit randomly selected
The information in Section II is based on the state's responses to PQR questions.
II. STATE PROGRAM BACKGROUND
A. Program Structure
Within the Maine Department of Environmental Protection (ME DEP), Bureau of Water Quality,
the Division of Water Quality Management (DWQM) is responsible for administering the NPDES
program within the state. DWQM is responsible for regulatory oversight and licensing, including
wastewater licensing and stormwater licensing. Stormwater licensing includes issuing the
Multisector General Permit (MSGP), Municipal Separate Storm Sewer System (MS4) permits,
and the Post Construction Discharge of Stormwater in the Long Creek Watershed General
Permit. DWQM also is responsible for compliance, enforcement, technical assistance, financial
assistance, Underground Injection Control (UIC), and sand/salt and pump-out. The DWQM
coordinates with the Division of Environmental Assessment during permit development, which
provides monitoring and modelling support. DEP's main office is located in Augusta, Maine.
Within this office DWQM performs all of the core permitting functions: permitting, compliance,
enforcement, and data management. DEP has three regional offices located in southern Maine
(Portland), northern Maine (Presque Isle), and eastern Maine (Bangor). These regional offices
primarily address permit compliance and have a minor role in assisting seasonal ambient water
quality monitoring.
Within DEP, 55 staff persons support NPDES permit development as all or part of their job
responsibilities. This includes permit writers, biologists, modelers, compliance/enforcement
personnel, and engineers. There are 5.5 permit writers, 2 water quality modelers, 6 TMDL staff
and administrative and upper level management staff who also support the permit
development process. Permit writers attend EPA's Permit Writers' Training Course and receive
internal mentoring for professional development.
Maine DEP/DWQM uses the Environmental Facilities Information system (EFIS), a compliance
and permit application tracking system, and the Toxics Tracking System (Toxscan/DETOX) to
support permit development and for the evaluation of toxic parameters to protect water
quality. Toxscan and DETOX are used to evaluate reasonable potential and the need for water
quality-based effluent limits (WQBELs). Data are collected from Toxscan and analyzed using
DETOX. Maine DEP also uses EPA's Integrated Compliance Information System (ICIS) to collect
discharge monitoring data.
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Maine DEP does not use templates to develop permits or fact sheets. Staff work from the
previous permit or fact sheet and update language based on language in recently-issued
permits and fact sheets. Staff coordinate regularly and are kept abreast of boilerplate language
updates. DWQM staff use a spreadsheet tool to calculate reasonable potential for a discharge
to cause, potential to cause, or contribute to an excursion above water quality criteria. DEP
staff also employ models including CORMIX and WASP to supporting permit development (e.g.,
calculate mixing zones).
DWQM staff develop an internal draft of each permit that the Division reviews to ensure there
is internal consensus on the draft permit prior to sharing the draft with the discharger and the
public. Upper level management provide quality assurance/quality control (QA/QC) on the
internal draft and subsequent proposed and final draft permits. Final permits are signed by the
DEP Commissioner.
DEP's permit files are maintained by permit writers in the Augusta office. Monitoring, reporting
and compliance records are maintained by compliance officers in regional offices.
B, Universe and Permit issuance
As of the dates of the PQR, DWQM administers 1,030 MEPDES permits. This includes 150
POTW permits (70 major POTW facilities and 80 non-major facilities), 34 CSO permits, and 164
non-municipal permits (10 major facilities, 148 non-major facilities, 6 concentrated animal
feeding operations (CAFOs)) as well as permittees covered by non-stormwater general permits.
Major industries in Maine subject to effluent limit guidelines (ELGs) include pulp and paper
producers, textiles, and steam electric power generators.
Stormwater permits administered by DWQM include three MS4 permits (Small MS4s, Maine
DOT and Turnpike Authority MS4s, and state or federal MS4s) that cover 40 permittees, a multi-
sector general permit that covers 640 permittees, and a Construction General Permit. Maine
also has a general permit for Post-Construction Discharge of Stormwater into the Long Creek
Watershed.
DWQM non-stormwater general permits include the following: (24 permittees)
Antifouling Paint Contaminated Wash Water
Application of Aquatic Pesticides for the Control of Mosquito-borne Diseases
Application of Herbicides for the Control of Invasive Aquatic Plants
Application of Piscicides for the Control of Invasive Fishes
Discharge of Pesticides (incidental and unintended discharge to surface waters)
Net Pen Aquaculture
Snow Dumps to Surface Waters
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Snow Dumps to Ground Water
Notices of Intent (NOIs) are tracked electronically in the EFIS system.
ME DEP also licenses treated discharges to surface waters of domestic pollutants that are not
conveyed and treated in municipal treatment facilities as overboard discharges. Typical
overboard discharges include systems that serve residences, schools, and small commercial
establishments. Starting in the 1970s, state licenses to overboard discharges have replaced
straight-pipe discharges from residential dwellings, schools, and small commercial operations
along the coast where septic systems cannot be installed and municipal sewers are not
available. Overboard discharges continually are being replaced with sewage system connections
or septic systems as technology advances and where building codes allow. Since 1987, over two
thirds of the state's overboard discharges have been removed, with about 900 remaining.
Secondary Treatment required by ME DEP in overboard discharges licenses include biological
treatment (typically mechanical systems or sand filters) and disinfection. Larger overboard
discharges (greater than 2000 gallons per day) (N=35) receive NPDES/State permits with NPDES
permit numbers, monitoring requirements, and DMR reporting requirements. Smaller
overboard discharges, mostly from residential properties or seasonal homes or facilities that
typically have a licensed discharge of 300 gallons per day, receive a state only license.
Overboard discharges are subject to regular state inspections, with approximately 1000
inspections taken place annually. ME DEP continues working towards phasing out overboard
discharges. Until all overboard discharges are eliminated, ME will continue conducting
inspections of the remaining facilities.
For MEPDES major permits, 95.6 percent of POTW permits are current (4.4 percent of these
permits are backlogged) and 80 percent non-POTW permits are current (20 percent are
backlogged). For minor permits 94.3 percent of POTW permits are current (5.7 percent are
backlogged - 7 of these permits are CWA section 301(h) facilities that are the responsibility of
EPA Region 1) and 96 percent of non-POTW permits are current (4 percent are backlogged).
Maine DEP works to address any backlogged permits at the beginning of each fiscal year. DEP is
currently meeting its priority permit goals.
Maine DEP uses a mix of EPA and state MEPDES permit application forms. A letter is sent to the
permittee with the relevant permit application forms 6-9 months prior to the expiration date of
the existing permit. Permit applications are reviewed for completeness by the permitting
section head. At ME DEP's instruction, the permittee publishes a public notice at the permit
application stage. Complete applications are accepted for processing and the information
contained in the application is entered into the EFIS system.
A schedule of permits to be renewed or modified in each calendar year is developed and
approved by December 1 of each year. Permits are assigned to permit writers by upper level
management (e.g., Wastewater Licensing Unit Manager) based on knowledge and experience,
familiarity with the industrial sector, workload, and career performance. Maine DEP staff
conduct an internal meeting following information and document gathering (DMR and toxics
data; applications; policies and guidance), as necessary. Staff discuss the specific permit and
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identify data gaps, trends, compliance issues, etc., that may result in more or less stringent
permit conditions. The internal meeting also assists in setting a schedule for permit
development.
Permit writers have primary responsibility for developing the permit in coordination with
compliance, technical assistance, enforcement staff and water quality experts in the Division of
Environmental Assessment. Permit writers compile the information necessary to develop the
permit including the existing permit, ICIS data, testing and sampling data (WET, mercury,
priority pollutants), statistical evaluations of such data (for reasonable potential determinations
or for determining permit limit exceedances), the status of the receiving water, the permit
application or NOI, and other relevant information based on the facility/ site being permitted.
Permit writers initially develop an internal draft that is circulated for internal comment,
followed by a preliminary draft that is shared for comment with EPA, state and federal agency
staff, the permittee, and other parties that have expressed early interest. The permit writer
then develops a proposed draft which provides the permittee, state and federal agencies and
other persons who have notified DEP that they wish to have an opportunity to comment on the
permit. The proposed draft is available on EPA Region l's website once it is received by EPA and
posted, however, this may not coincide with a 30-day public comment period for the selected
interested parties, who are notified of the comment period by e-mail. Proposed draft permits
and fact sheets are not routinely made available for public comment at this time nor is a notice
of a public comment period for the proposed draft permit published in a local newspaper for
major permits. Comments received by ME DEP on the proposed draft permit that result in
substantive changes or that are rejected (but otherwise would have resulted in such changes)
are addressed in writing in the Response to Comment section of the final permit and fact sheet.
Once comments are addressed, a final permit is prepared for signature and provided, along
with the response to comments, to the permittee, compliance staff, DWQM staff, EPA, and all
commenters.
Permit writers develop technology-based effluent limitations (TBELs) based on DEP rules
(Chapter 524, Sec. 2), Criteria and Standards for Imposing Technology-Based Treatment
Requirements Under Sections 301(b) and 402 of the Act and (Chapter 525), Effluent Guidelines
and Standards.
Water quality based effluent limits (WQBELs) are developed in accordance with Chapter 584,
Surface Water Quality Criteria for Toxics, and Chapter 530, Surface Water Toxics Control
Program, Maine Specific DETOX Program. DEP also has developed a memorandum entitled
MEDEP's System for Evaluating Toxicity from Multiple Discharges (October 2008). WQBELs are
based on water quality criteria, dilution factors, ambient water quality data and modelling
analyses. All priority pollutants are evaluated, as well as ammonia. The ToxScan database is
used to support the DETOX statistical analysis, which determines reasonable potential and
calculates required limits. DEP normally uses ambient data collected by the Department,
permittee or third parties pursuant to an approved Quality Assurance Project Plan. If such data
are not available, the default ambient concentration for toxics is 10 percent of the acute water
quality criterion (Chapter 530, Surface Water Toxics Control Program). Mixing zones are
authorized at 38 M.R.S. §451. Complete mixing is assumed in some cases and not in others, and
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size constraints are imposed. In general, CORMIX is used to model mixing zones. Permit fact
sheets include general discussions of the basis and use of mixing zones in developing WQBELs.
Anti-degradation requirements are evaluated when a new discharge is proposed or when an
increased discharge will use more the 20 percent of the remaining assimilative capacity of a
receiving water. The policy is set forth at 38 M.R.S. 464(4)(F) and DEP has a guidance
memorandum addressing implementation. Implementation is documented through the use of
boilerplate language in the relevant fact sheet. Anti-backsliding requirements are applied when
less stringent numeric limitations are being imposed in a permit. Where applicable, these
requirements are implemented and explained in the relevant fact sheets.
Permit monitoring requirements reflect permit discharge limits and are based on state
documents (Summary of Maine Conditions for NPDES Permit Certification, March 1992) as well
as EPA's 1996 guidance regarding performance-based reductions of monitoring frequencies,
and DEP's 2014 supplemental guidance on the same topic. Permittees are required to submit
electronic discharge monitoring reports (DMRs) to DEP monthly. Reported data is forwarded to
ICIS.
Narrative conditions can address special conditions (e.g., narrative effluent limits, operator
requirements, industrial user(IU) limitations, notification requirements, authorized discharges,
high flow management plan, operation and management plan, combined sewer overflow
provisions) and, for POTWs, pretreatment requirements. Standard conditions are reviewed by
the Maine Attorney General's office and were last updated July 1, 2002.
Permit writer develop fact sheets for all permits as the permit is drafted. Typically, the existing
fact sheet is modified based on changes to the permit or changes to regulations or policy or
standard language for specific topics.
Section 401 certification review is only performed for facilities subject to CWA section 301(h)
waivers (i.e., waiver of secondary treatment for POTWs discharging to marine waters).
Certification occurs via a Department Order.
With regard to public notice and an opportunity to comment, the permittee publishes a public
notice at the permit application stage, but not when draft permits (also called proposed
permits or proposed draft permits) and fact sheets are available. Comments can be submitted
on the application, or later on the draft permit and fact sheet. In addition to the permittee and
state and federal agencies, persons that have notified the Department of their interest receive
a copy of the draft permit and have 30 days to comment. This notice is provided in an e-mail to
the interested party. Permit writers draft written responses to substantive comments on draft
permits and these are included the Response to Comments section of the final permit and fact
sheet.
DEP rule 06-096 CMR 2 provides authority for a permit applicant or any person to request a
hearing (including testimony and cross-examination) regarding any permit application, at the
time of that the permit application is public noticed. Permit appeals can be brought before the
Maine Board of Environmental Protection. This occurs rarely, perhaps once every five years.
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No permit objections to an ME DEP issued permit have been received from EPA since inception
of the MEPDES program in 2001.
C, State-Specific Challenges
Specific challenges for the MEPDES program include the following:
See Current Sate Initiatives below regarding State regulatory revisions, a new NPDES program
application, and implementation of CWA § 316(b).
D. Current State Initiatives
The 2001 authorization of the Maine NPDES program did not include authorization for
implementing the CWA §316(b) program which regulates cooling water intake structures
through NPDES permits. At that time, there was agreement that Maine would promptly enact
appropriate legislation for this authorization and apply for authorization for §316(b) permitting
Thus, Maine DEP is pursuing NPDES authorization to regulate cooling water intake structures
(316(b)). Currently ME DEP is revising and updating its state NPDES regulations (Chapters 520
through 529) to make them consistent with all current federal NPDES regulations. This effort
will be used by ME DEP to prepare a NPDES State Program Revision Application, in accordance
with 40 CFR 123.21. The application will include a program description, a proposed
Memorandum of Understanding (MOA), the revised regulations, and an Attorney General's
statement in order to become authorized to implement the CWA Section 316(b) permitting
program and other updated provisions. Since it has been over 15 years since the state received
authorization to implement the NPDES program, program revision will include any other state
regulatory changes need to make state NPDES regulations equivalent to the federal NPDES
regulations. In the meantime, it is EPA's responsibility to issue permit provisions to implement
CWA §316(b), and EPA is aware of a number of permits where 316(b) provisions are needed to
be updated or required for the first time.
III. CORE REVIEW FINDINGS
A. Basic Faci ormation and Permit Application
1. Facility information
Basic facility information is necessary to properly establish permit conditions. For example,
information regarding facility type, location, processes and other factors is required by NPDES
permit application regulations (40 CFR 122.21). This information is essential for developing
technically sound, complete, clear and enforceable permits. Similarly, fact sheets must include
a description of the type of facility or activity subject to a draft permit.
The ten Maine NPDES permits and fact sheets reviewed during the core review include permit
issuance, effective and expiration dates, authorized signatures, and specific authorization to
discharge information. These permits are issued as DEP Orders. The fact sheets reviewed
include a basic description of the facility, including general location and treatment process; the
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level of detail varied among the fact sheets reviewed. Fact sheets for the POTW permits
reviewed contain detailed descriptions of the wastewater treatment process. Facility
descriptions in fact sheets for the non-POTW permits reviewed provide a general description of
plant operations, wastewater treatment processes and applicable industrial categorization,
including SIC codes. Permits and fact sheets identify the receiving waterbody by name and
surface water classification. Fact sheets for the core permits do not indicate the specific
location of the outfall using latitude and longitude information, however, location maps
included in the permit generally identify the facility and outfall location. Further, fact sheets
generally lack a clear description of the discharge location within the receiving waterbody.
Finally, the core permits reviewed do not identify if the facility is a major or non-major facility.
2, Permit Application Requirements
Federal regulations at 40 CFR 122.21 and 122.22 specify application requirements for
permittees seeking NPDES permits. Although federal forms are available, authorized states are
also permitted to use their own forms provided they include all information required by the
federal regulations. This portion of the review assesses whether appropriate, complete, and
timely application information was received by the state and used in permit development.
Federal regulations established at 40 CFR 122.21(j)(3)(i) require applicants to provide outfall
locations, including latitude/longitude information. ME DEP uses a state form for POTW
applications (DEPLW1999-21). Maine's POTW form does not require submittal of latitude and
longitude information. In addition, 40 CFR 122.21(g)(4)(ii) requires every applicant provide
analytical results for certain parameters (BOD, fecal coliform, design flow rate, pH,
temperature, and TSS) and for facilities with a design capacity greater than or equal to 0.1
million gallons per day (MGD), 40 CFR 122.21(j)(4)(iii) requires the submittal of results for
specific parameters (ammonia, chlorine, dissolved oxygen, nitrate-nitrite, total Kjeldahl
nitrogen, oil and grease, phosphorus, and total dissolved solids). Further, 40 CFR 122.21(j)(5)(i)
and (ii) require submittal of WET results, and for facilities with a design capacity greater than or
equal to 1 MGD, the submittal of the results of priority pollutant analyses, respectively.
However, Maine's form DEPLW1999-21 does not require submittal of analytical data for any
parameters (it does request the dates of WET and priority pollutant screening conducted under
Chapter 530.5 and submitted within the previous five years). The state application does not
request the submittal of data that EPA Form 2A requests ("Effluent Testing Information" in
section A.12, "Effluent Testing Data" in section B.6, and "Expanded Effluent Testing Data" in
part D). While, 40 CFR 122.21(j) allows that previously submitted information can be referenced
and the Director may waive requirements if he or she has access to substantially identical
information, no record of such a waiver was found in the permit file.
In addition, one permit application (ME0100391) was received late and the file did not indicate
DEP had granted an extension to file the application. For one permit (ME0002160), Form 2C
was not identified in the permit file. For a second permit (ME0100854), no application was
identified in the file (file materials were incomplete or unavailable).
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B, Technology-based Effluent Limitations
NPDES regulations at 40 CFR 125.3(a) require that permitting authorities develop technology-
based requirements where applicable. Permits, fact sheets and other supporting
documentation for POTWs and non-POTWs were reviewed to assess whether technology based
effluent limitations (TBELs) represent the minimum level of control that must be imposed in a
permit.
J. TBELs for POTWs
POTWs must meet secondary or equivalent to secondary standards (including limits for BOD5,
TSS, pH, and percent pollutant removal), and must contain numeric limits for all of these
parameters (or authorized alternatives) in accordance with the secondary treatment
regulations at 40 CFR Part 133. A total of four POTW permits were reviewed as part of this PQR.
The fact sheets for the POTW core permits reviewed include a detailed description of the
wastewater treatment process. These POTW permits contain technology-based effluent
limitations (TBELs) based on and consistent with secondary treatment standards and contain
effluent limitations for BOD5 and TSS in appropriate units and forms. In addition, these permits
establish minimum percent removal requirements consistent with secondary treatment
standards (40 CFR 133.102(a) and (b)). All of the municipal permits reviewed establish influent
monitoring requirements for BOD5 and TSS.
2, TBELs for Non-POTW Dischargers
Permits issued to non-POTWs must require compliance with a level of treatment performance
equivalent to Best Available Technology Economically Achievable (BAT) or Best Conventional
Pollutant Control Technology (BCT) for existing sources, and consistent with New Source
Performance Standards (NSPS) for new sources. Where applicable federal effluent limitations
guidelines (ELGs) have been developed for a category of dischargers, the TBELs in a permit must
be based on the application of these guidelines. If ELGs are not available, a permit must include
requirements developed on a case-by-case using best professional judgment (BPJ) in
accordance with the criteria outlined at 40 CFR 125.3(d).
Six non-POTW permits were reviewed during this PQR. Four of these six facilities are subject to
ELGs. The fact sheets reviewed include a description of the facility and the treatment process.
ELG categorization is discussed generally (i.e., fact sheets indicate which ELGs are applicable to
the discharge but not the basis). In a few cases, the TBELs are presented in the fact sheet along
with a comparison of applicable WQBELs and the fact sheets appropriately discuss selection of
the more stringent limit. In one case (ME0037401), TBEL derivation is not explicitly discussed
(for cooling tower blowdown, temperature). In another case (ME0000159) the applicable
subpart of the ELG was identified and a statement was made that the water-quality based limits
for BOD and TSS were more stringent, without a calculation of the technology-based TSS or
BOD limits. In such cases, it is suggested that the fact sheet should contain a quantitative
comparison of the technology-based limit derived from the ELG to the water-quality based
limit. The permit records include documentation of the calculations used to develop ELG-based
limits for the four facilities subject to ELGs. For the permits where ELGs apply, the limits in the
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respective permits appear to be consistent with the applicable ELGs. The technology-based
limits in the non-POTW permits are expressed in appropriate units and forms.
C. Water Quality-Based Efflu< nitations
The NPDES regulations at 40 CFR 122.44(d) require permits to include any requirements in
addition to or more stringent than technology-based requirements where necessary to achieve
state water quality standards, including narrative criteria for water quality. To establish such
"water quality-based effluent limits" (WQBELs), the permitting authority must evaluate the
proposed discharge and determine whether technology-based requirements are sufficiently
stringent, and whether any pollutants or pollutant parameters could cause, have the reasonable
potential to cause, or contribute to an excursion above any applicable water quality standard.
The PQR for Maine assessed the processes employed by permit writers and water quality
modelers to implement these requirements. Specifically, the PQR reviewed permits, fact
sheets, and other documents in the administrative record to evaluate how permit writers and
water quality modelers:
determined the appropriate water quality standards applicable to receiving waters,
evaluated and characterized the effluent and receiving water, including identifying
pollutants of concern,
determined critical conditions,
incorporated information on ambient pollutant concentrations,
assessed any dilution considerations,
determined whether limits were necessary for pollutants of concern and, where
necessary,
calculated such limits or other permit conditions.
For impaired waters, the PQR also assessed whether and how permit writers consulted and
developed limits consistent with the assumptions and recommendations of applicable EPA-
approved total maximum daily loads (TMDLs).
Maine DEP employs an integrated watershed-based approach to calculating wasteload
allocations. The fact sheets for the core permits reviewed identify the receiving water body and
identify the water body classification. The fact sheets do not describe the receiving water's
designated uses, however, they do indicate the classification of such waters (e.g., AA, A, B or C
for fresh surface waters not classified as great ponds), and the designated uses can be
determined based on the water body classification as specified in Maine's water quality
standards. The fact sheets reviewed specifically discuss the receiving water body's impairment
status, the pollutants causing impairment(s), and applicability of TMDLs. They also include
attachments that discuss DEP's system for evaluating toxicity from multiple dischargers
(October 2008 memo, "DEP's System for Evaluating Toxicity from Multiple Dischargers"), a
flowchart depicting the steps of the DETOX process, a priority pollutant data summary (which
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lists test dates and number of tests by pollutant category) and a facility priority pollutant data
report (which lists pollutant, test date, concentration, less-than notation).
The fact sheets that were included in the review do not directly address the selection of
pollutants of concern, as described in 6.2.1 (pg. 6-13) of NPDES Permit Writers' Manual. The
fact sheets generally indicate that statistical analysis was conducted, consistent with EPA
guidance (see Technical Support Document for Water Quality-Based Toxics Control
(TSD), March 1991 [EPA/505/2-90-001]), on up to 60 months' worth of effluent data and also
reference the Identification Number of the reasonable potential analysis report.1 The fact
sheets generally indicate dilution factors derived pursuant to state regulations. The fact sheets
also indicate whether or not reasonable potential was identified for any pollutants based on the
analysis conducted and, where it was identified, how limits were developed for these
pollutants. Where reasonable potential was identified, the core permits reviewed include
corresponding limits. (See III.G.l for a discussion of WQBEL documentation findings).
Water quality-based effluent limits were removed from three of the reviewed permits
(ME0036218 (removal of WET limits), ME0001872 (removal of WET and cyanide limits), and
ME0100951 (removal of ammonia limit) based on a finding that the discharges did not present
reasonable potential to exceed applicable water quality criteria. Improvements in water
quality, with the reasons indicating no reasonable potential, should not be reason for removing
an existing limit. Water quality improvements are expected by permit limits and will not be
sustained if permit limits are then relaxed. Existing limits should be evaluated to determine
whether they still provide adequate protection of water quality standards or whether they
need to be made more stringent.
Improvements in water quality, with the reasons indicating no reasonable potential, should not
be reason for removing an existing limit. Water quality improvements are expected by permit
limits and will not be sustained if permit limits are then relaxed.
In at least one permit (ME0000159), a technology-based permit limit for pH was selected (5.0
SU to 9.0 SU) without a discussion or selection of a water quality-based limit which would
appear to be more stringent and consistent with the applicable water quality standards set
forth in M.R.S. Title 38 § 464.A.(5)).
D. Monitoring a sorting
NPDES regulations at 40 CFR 122.41(j) require permittees to periodically evaluate compliance
with the effluent limitations established in their permits and provide the results to the
permitting authority. Monitoring and reporting conditions require the permittee to conduct
routine or episodic self-monitoring of permitted discharges and where applicable, internal
1 An attachment to the fact sheets is "DEP's system for evaluating toxicity from multiple dischargers" (October
2008), which in part indicates that "[e]ach toxic pollutant and associated water quality criterion for acute, chronic
and/or human health effects is evaluated separately." Division of Water Quality Management Guidance (January
24, 2014) also indicates that permitting procedures include obtaining three years of DMR data and five years of
WET and mercury test results and priority pollutant data and evaluating reasonable potential that demonstrates an
excursion above applicable water quality criteria.
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processes, and report the analytical results to the permitting authority with information
necessary to evaluate discharge characteristics and compliance status.
Specifically, 40 CFR 122.44(i) requires NPDES permits to establish, at minimum, annual
monitoring for all limited parameters sufficient to assure compliance with permit limitations,
including specific requirements for the types of information to be provided and the methods for
the collection and analysis of such samples. In addition, 40 CFR 122.48 requires that permits
specify the type, intervals, and frequency of monitoring sufficient to yield data which are
representative of the monitored activity. The regulations at 40 CFR 122.44(i) also require
reporting of monitoring results with a frequency dependent on the nature and effect of the
discharge.
The core permits reviewed require monitoring for all of the parameters subject to permit limits
and specify the frequency of such monitoring. Specified monitoring locations were not
identified in several of the permits reviewed (ME0100951, ME0100854, ME0100391,
ME0037401). The POTW permits include acute and chronic WET testing requirements. Influent
monitoring for BOD and TSS is not required in the body of the limits and monitoring
requirements tables in the POTW permits, however, the footnotes to these tables include a
condition that states "[t]he treatment facility shall maintain a minimum of 85 percent removal
of both biochemical oxygen demand and total suspended solids for all flows receiving
secondary treatment. The percent removal shall be calculated based on influent and effluent
concentration values."
Two of the core permits that were reviewed (ME0100064 and ME0000159) required the use of
non-promulgated test methods, and were therefore inconsistent with 40 CFR 122.44, which
requires the use of methods that have been approved under 40 CFR Part 136.
The standard conditions in the core permits do not include an explicit requirement to use
sufficiently sensitive analytical methods for all regulated parameters, however, the permits do
specify that priority pollutant and analytical chemistry testing "must be conducted using
methods that permit detection of a pollutant at existing levels in the effluent or that achieve
minimum reporting levels of detection as specified by the Department." (See, Special
Conditions, sub-sections A.8 through 10). The permits reviewed require that monitoring
information be reported on Discharge Monitoring Reports. Maine DEP developed an eDMR
system in 2005 and continues to implement and improve this system. As of the date of the PQR
80 percent of MEPDES permittees submit DMRs electronically.
E. Standard and Sped ditions
Federal regulations at 40 CFR 122.41 require that all NPDES permits, including NPDES general
permits, contain an enumerated list of "standard" permit conditions. Further, the regulations at
40 CFR 122.42 require that NPDES permits for certain categories of dischargers must contain
additional standard conditions. Permitting authorities must include these conditions in NPDES
permits and may not alter or omit any standard condition, unless such alteration or omission
results in a requirement more stringent than required by the federal regulations.
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In addition to standard permit conditions, permits may also contain additional requirements
that are unique to a particular permittee or discharger. These case-specific requirements are
generally referred to as "special conditions." Special conditions might include requirements
such as: additional monitoring or special studies such as pollutant management plan or a
mercury minimization plan; best management practices (see 40 CFR 122.44(k)), or permit
compliance schedules (see 40 CFR 122.47). Where a permit contains special conditions, such
conditions must be consistent with applicable regulations.
The permits reviewed include standard conditions that are applicable to all MEPDES permits
(based on Maine DEP regulations, Chapter 523). In general, these standard conditions are
consistent with federal standard conditions. With regard to potential penalties for certain
permit violations (e.g., the duty to comply, monitoring and record requirements and signatory
requirements), the permits reviewed indicate that any person who violates the laws
administered by the DEP or MEPDES permits is subject to the penalties set forth in 38 M.R.S.A.
§ 349, which include civil and criminal penalties as well as penalties for falsification of and
tampering with information, reports, documents, or certifications. In addition to the specific
penalty provisions being somewhat obscured by the external statutory reference, some aspects
of these state penalty provisions do not appear be fully consistent with existing federal
provisions (e.g., the civil penalty maximum has not been adjusted to reflect inflation [see, 40
CFR 19.4]; and penalties for knowing criminal violations do not have a maximum fine of $50,000
per day of violation or imprisonment). In addition, at the time of the PQR, Maine Chapter 523 of
Maine's environmental regulations (i.e., MEPDES standard conditions) had not yet been
amended to reflect EPA's final Electronic Reporting Rule, which in parts expands 40 CFR
122.41(6) and (7) to include reporting non-compliance information related to combined sewer
overflows, sanitary sewer overflows or bypass events, and specifies the nature and schedule for
electronic reporting. Under 40 CFR 123.62(e), authorized states have one year to make program
revisions to conform with federal NPDES program changes, unless statutory changes are
required, in which case the state has two years to make such revisions. The Electronic Reporting
Rule became effective 12/21/2015.
MEPDES permits identify essentially all permit conditions other than standard conditions as
special conditions. These include discharge limit and monitoring tables, monitoring and
reporting requirements, sampling and analysis methods, narrative conditions, treatment plant
operator requirements, notification requirements, limitations for industrial users, wet weather
flow management plan requirements, pump station monitoring and bypass conditions,
transported waste conditions, operation and management plan requirements, mixing zone
information, thermal load provisions, certification requirements, BMP provisions, compliance
schedules, conditions for reduced toxics testing, reopener provisions, and severability
provisions, as appropriate.
F, Administrative Process
The administrative process includes documenting the basis of all permit decisions (40 CFR 124.5
and 40 CFR 124.6); coordinating EPA and state review of the draft (or proposed) permit (40 CFR
123.44); providing public notice (40 CFR 124.10); conducting hearings if appropriate (40 CFR
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124.11 and 40 CFR 124.12); responding to public comments (40 CFR 124.17); and, modifying a
permit (if necessary) after issuance (40 124.5). EPA discussed each element of the
administrative process with Maine DEP and reviewed materials from the administrative process
as they related to the core permit review.
Permittees publish a public notice when permit applications are submitted and comments can
be submitted until the permit is finalized.2 Federal regulations at 40 CFR 124.10(a)(ii) require
public notice when a draft permit has been prepared. While ME DEP accepts comments on the
draft permit, the 40 CFR 124.10 public notice requirements are not fully met. For example, 40
CFR 124.10(c)(2)(i) requires public notice in a local newspaper of draft major permits, and this
does not appear to be happening. For five of the permits reviewed, the public notice of the
draft permit was not identified in the permit file (ME0001872, ME0021521, ME0036218,
ME0100391, and ME0100064). In general, significant public comments and DEP written
responses were identified at the end of the fact sheets reviewed. In some cases, the fact sheet
indicated that no significant comments were received. One permit was modified, and the
modification appeared to be processed in a manner consistent with applicable procedures.
G, Administrative Record
The administrative record is the foundation that supports the NPDES permit. If EPA issues the
permit, 40 CFR 124.9 identifies the required content of the administrative record for a draft
permit and 40 CFR 124.18 identifies the requirements for a final permit. Authorized state
programs should have equivalent documentation. The record should contain the necessary
documentation to justify permit conditions. At a minimum, the administrative record for a
permit should contain the permit application and supporting data; draft permit; fact sheet or
statement of basis; all items cited in the statement of basis or fact sheet including calculations
used to derive the permit limitations; meeting reports; correspondence between the applicant
and regulatory personnel; all other items supporting the file; final response to comments; and,
for new sources where EPA issues the permit, any environmental assessment, environmental
impact statement, or finding of no significant impact.
Current regulations require that fact sheets include information regarding the type of facility or
activity permitted, the type and quantity of pollutants discharged, the technical, statutory, and
regulatory basis for permit conditions, the basis and calculations for effluent limits and
conditions, the reasons for application of certain specific limits, rationales for variances or
alternatives, contact information, and procedures for issuing the final permit.
The MEPDES fact sheets reviewed are consistent with respect to organization and content.
Typically, these include information under the following headings: Application Summary, Permit
Summary, Receiving Water Quality Standards, Conditions of Permits, Receiving Water Quality
2 State regulations provide that DEP must notify the applicant, relevant federal and state agencies, and persons on
a DEP mailing list that an application has been filed, and also require public notice that a MEPDES hearing has been
scheduled (see, Chapter 522, Section 8). The notice must include contact information for a person who can provide
access to the draft permit, fact sheet or application. In addition, copies of the draft permit, fact sheet and
application must be made available to the applicant, relevant federal and state agencies, and persons on a DEP
mailing list including those responding to public notices and requesting information on certain applications.
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Conditions, Effluent Limitations and Monitoring Requirements, Discharge Impact on Receiving
Water Quality, Public Comments, Department Contacts, and Response to Comments. Non-
POTW permit fact sheets also may include information addressing: Modifications Requested,
River Flow, and Best Management Practices Plan. Attachments to these fact sheets typically
include: a facility map, a facility flow chart, a WET test report, a priority pollutant data summary
(which lists test dates and number of tests by pollutant category) and/or a facility priority
pollutant data report (which lists pollutant, test date, concentration, less-than notation), a DEP
memorandum regarding evaluating toxicity from multiple discharges, a waived or reduced WET
testing certification statement, and potentially other permit-specific items. MEPDES permit fact
sheets also include a thorough description of the history of the respective permit and a
description of changes made to the draft permit from the conditions included in the previous
permit.
In some cases, permit records were not found to be complete. As discussed below, certain
elements supporting the derivation of WQBELs were not identified in the files reviewed. In
addition, in one instance (ME0100854), no permit record was identified except for three items
of correspondence with comments on the preliminary or draft permit. Also, all public
comments received during the public comment period were not consistently identified in the
respective permit files (although, as discussed, the fact sheets include summaries of significant
comments and DEP responses).
1 Documentation of Effluent Limitations
Permit records for POTWs and industrial facilities should contain comprehensive
documentation of the development of all effluent limitations. Technology-based effluent limits
should include assessment of applicable standards, data used in developing effluent limitations,
and actual calculations used to develop effluent limitations. The procedures implemented for
determining the need for water quality-based effluent limitations as well as the procedures
explaining the basis for establishing, or for not establishing, water quality-based effluent
limitations should be clear and straight forward. The permit writer should adequately
document changes from the previous permit, ensure draft and final limitations match (unless
the basis for a change is documented), and include all supporting documentation in the permit
file.
With regard to documentation of the effluent limitations applicable to non-POTW facilities, in
most cases the fact sheets reviewed provide a good description of the facility, wastestreams
and treatment, and include a discussion of which ELGs are applicable to the discharge. This
discussion could benefit from some additional detail, such as whether the discharge is a new
source or an existing source. The fact sheet for one permit (ME0037401) did not discuss the
applicable TBEL. In general, the fact sheets discuss the application and development of the
TBELs. In four of the five permits subject to ELGs, the permit records include documentation of
the calculations used to develop ELG-based limits.
With regard to documentation of WQBELs, the fact sheets reviewed identify the receiving water
and applicable water quality standards, and describe the impairment status of the receiving
water, including whether a TMDL is in place. These fact sheets generally indicate that
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reasonable potential analysis was conducted consistent with the process outlined in EPA
guidance and identify pollutants for which reasonable potential was found. For pollutants that
exceeded a threshold for reasonable potential, the fact sheets explain how permit limits were
developed. The fact sheets do not present a summary of toxics data evaluated in the
reasonable potential analysis (DETOX reports are cited, but are not retained in the permit file
and not discussed in detail in the fact sheets), and do not go into detail about evaluation of
available toxics effluent monitoring data and the results of the reasonable potential
evaluations. The permits and fact sheets for three of the reviewed permits indicated that limits
had been removed based on the results of reasonable potential analyses, which indicated the
discharges do not present reasonable potential to exceed ambient water quality criteria
(ME0001872, ME0036218, and ME0100951). According to Section 6.3.2.4 of EPA's Permit
Writers' Manual (EPA, September 2010 [EPA-833-K-10-001]), permit writers need to document
the details of the reasonable potential analysis in the NPDES permit fact sheet. The permit
writer should clearly identify the information and procedures used to determine the need for
WQBELs. The goal of that documentation is to provide the NPDES permit applicant and the
public a transparent, reproducible, and defensible description of how each pollutant was
evaluated, including the basis (i.e., reasonable potential analysis) for including or not including
a WQBEL for any pollutant of concern.
The fact sheets generally discuss dilution, however, neither CORMIX model reports nor
descriptions of mixing zones were consistently identified or referenced in the permit files, per
state statute (38 M.R.S. 451).
Two fact sheets lack a specific discussion of antidegradation for new or increased discharges
(ME0037401 (Maine Wood Pellets Company, LLC) for heat and ME0001872 (Woodland Pulp,
LLC) for AOx). For each of these permits, the second page of the DEP Order includes a standard
statement that the provisions of the state's antidegradation policy will be met because the
discharge meets one or more of five delineated conditions of the state policy. This language
indicates some level of consideration of antidegradation but does not make it clear which of the
conditions apply to this facility and what assessment or analysis the statement is based on.
With regard to anti-backsliding, the fact sheet for one permit (ME0036218) did not include a
discussion of anti-backsliding regarding the removal a WET limit. This permit (pg. 1) and fact
sheet (pg. 28) indicate that based on the results of 60 months of WET tests, there is no
reasonable potential for WET. However, the fact sheet for this permit does not explain why this
data constitutes an exception to anti-backsliding requirements. Similarly, water quality-based
effluent limits were removed from two other reviewed permits (, ME0001872, and ME0100951)
without any discussion as to how their removal is consistent with anti-backsliding
requirements. Data and/or revised analyses which indicate improvements in water quality is
not a sufficient reason for invoking the anti-backsliding exception of "new information".
Antidegradation analyses for new or increased discharges should be clearly described in fact
sheets, as should anti-backsliding analyses conducted for permits in which less stringent limits,
including those that are calculated based on new or revised criteria (i.e., arsenic), are proposed.
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H. Nation ic Areas
National topic areas are aspects of the NPDES permit program that warrant review based on
the specific requirements applicable to the selected topic areas. These topic areas have been
determined to be important on a national scale. National topic areas are reviewed for all state
PQRs. The national topics areas are: nutrients, pesticides, pretreatment and stormwater.
I. Nutrients
For more than a decade, both nitrogen and phosphorus pollution has consistently ranked as
one of the top causes of degradation of surface waters in the U.S. Since 1998, EPA has worked
at reducing the levels and impacts of nutrient pollution. A key part in this effort has been the
support EPA has provided to States to encourage the development, adoption and
implementation of numeric nutrient criteria as part of their water quality standards (see the
EPA's National Strategy for the Development of Regional Nutrient Criteria). In a 2011 memo to
the EPA regions titled Working in Partnerships with States to Address Nitrogen and Phosphorus
Pollution through use of a Framework for State Nutrient Reductions, the Agency announced a
framework for managing nitrogen and phosphorus pollution that, in part, relies on the use of
NPDES permits to reduce nutrient loading in targeted or priority watersheds.
Background
Maine has not adopted narrative or numeric nutrient-specific criteria in its WQS; however, the
State has been in the process of developing proposed numeric criteria. Waste Discharge
License Conditions, 06-096 CMR 523 specifies that water quality based limits are necessary
when it has been determined that a discharge has a reasonable potential to cause or contribute
to an excursion above any State water quality standard including State narrative criteria3. In
addition, 06-096 CMR 523 specifies that water quality based limits may be based upon criterion
derived from a proposed State criterion, or an explicit State policy or regulation interpreting its
narrative water quality criterion, supplemented with other relevant information which may
include: EPA's Water Quality Standards Handbook, October 1983, risk assessment data,
exposure data, information about the pollutant from the Food and Drug Administration, and
current EPA criteria documents4.
Waste Discharge License Conditions, 06-096 CMR 523 (effective January 12, 2001), specifies
that water quality based limits are necessary when it has been determined that a discharge has
a reasonable potential to cause or contribute to an excursion above any State water quality
standard including State narrative criteria (06-096 CMR 523(5)(d)(l)(i)). In addition, 06-096
CMR 523 specifies that water quality based limits may be based upon criterion derived from a
proposed State criterion, or an explicit State policy or regulation interpreting its narrative water
quality criterion, supplemented with other relevant information which may include: EPA's
Water Quality Standards Handbook, October 1983, risk assessment data, exposure data,
3 Waste Discharge License Conditions, 06-096 CMR 523 (5)(d)(1)(i) (effective date January 12, 2001)
4 06-096 CMR 523(5)(d)(l)(vi)(A)
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information about the pollutant from the Food and Drug Administration, and current EPA
criteria documents (06-096 CMR 523(5)(d)(l)(vi)(A)).
EPA's review included an examination of how well the permitting authority documented
decisions relative to determinations made with respect to the inclusion of nitrogen and/or
phosphorus limitations and monitoring requirements in NPDES permits and whether such
determinations were consistent with state water quality standards. Permitting decisions
reviewed included RPA documentation, identification of receiving water body characteristics,
identification of applicable WQS (narrative and/or numeric) and uses, identification of
impairments, water quality concerns or existing Total Maximum Daily Loads (TMDLs), limit
expression and WQBELs calculations. To assess how nutrients are addressed in the ME DEP
NPDES program, EPA Region I reviewed four permits (two POTW permits and two non-POTW
permits) as part of the nutrient topic review area. These permits are as follows:
Review
Focus
NPDES ID
Facility Name
Facility Type
Indicator
NUTRIENTS
ME0100391
Mechanic Falls Sanitary District
POTW - Major
NUTRIENTS
ME01009513
Paris Utility District
POTW - Major
NUTRIENTS
ME0102075
Portland Water District-East End
WWTF
POTW - Major
NUTRIENTS
ME00362183
McCain Foods USA, Inc.
NON-POTW -
Major
Program Strengths
Three of the four permits reviewed (Paris Utility District WWTF, McCain Foods Inc., and
Mechanic Falls Sanitary District) include limits and monitoring requirements for nutrients. The
permit for the Paris Utility District WWTF includes an ortho-phosphorus limit, while the permits
for McCain Foods, Inc., and Mechanic Falls Sanitary District WWTF include total phosphorus
limits. Fact sheets generally include a discussion of the criteria that were applied as well as a
summary of reasonable potential analyses and effluent limitation derivation.
Critical Findings
The concerns noted by EPA in its review of these permits primarily relate to inadequate
analyses of all available information pertaining to current receiving water and effluent
characteristics and not including limitations and conditions in permits which will restore water
quality as well as prevent future impairments of water quality when the results of reasonable
potential analyses indicate the need for their inclusion.
A review of the file for the permit that was issued to the Paris Utility District (ME0100951)
indicates that the limit in the permit is based on a 1987 Waste Load Allocation. The Fact Sheet
contains no information relative to whether or not water quality impairments remain. It is not
sufficient to merely rely on a 29-year-old waste load allocation to determine that a permit limit
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will ensure attainment of standards. The Fact Sheet should have included an up to date
reasonable potential analysis using current receiving water and effluent discharge data.
The Fact Sheet for the permit that was issued to the Portland Water District - East End WWTF
(ME0102075) concludes that based on total nitrogen data from five sites in the vicinity of the
outfall and a far-field dilution estimate, there is no reasonable potential for the ambient target
of 0.32 mg/l total nitrogen for the protection of eelgrass habitat to be exceeded as a result of
the discharge. In addition to providing no details relative to the ambient nitrogen data, the Fact
Sheet provides no information on other nutrient related response variables such as chlorophyll
a, macro-algae, light attenuation, or dissolved oxygen. The fact sheet does, however, indicate
that while the areal coverage of eelgrass in the vicinity of the outfall has stayed relative
constant, eelgrass beds near the outfall are showing signs of impairment (high epiphyte growth
on eelgrass at nearby Mackworth Island and thinning beds near East End Beach which is the
closest eelgrass bed to the outfall). A further review of the available ambient water quality
data indicates that total nitrogen levels near the outfall range from 0.33 - 0.41 mg/l. It is only
when data from a far field sampling site is included that an average total nitrogen
concentration of 0.31 ug/l, which was used to develop the permit, results. The available
chlorophyll a data, while limited, indicates evidence of nitrogen enrichment and macro-algae
blooms are known to periodically be an issue in parts of the receiving water. A comprehensive
review of all of the available data is needed to support a conclusion that there is no reasonable
potential that the discharge could cause or contribute to a water quality impairment. Further,
if no reasonable potential is found, ME DEP should ensure the ambient water quality and effect
data is collected during the next permit term to enable a more robust reasonable potential
determination in the next permit cycle.
The Fact Sheet for the permit that was issued to the Mechanic Falls Sanitary District
(ME0100391), indicates that there is reasonable potential and that a mass limit for total
phosphorus of 0.14 lbs/day is included in the permit. Additionally, the Fact Sheet indicates that
two years of ambient biological monitoring is required. However, the permit contains neither
of these requirements. In the Response to Comments document for the draft permit, a revised
reasonable potential analysis was conducted using newly acquired effluent data from 2014 and
no reasonable potential was found. Consequently, the water quality based phosphorus
requirements that were proposed in the draft permit were not included in the final permit. The
effluent data used in the revised reasonable potential analysis (0.22 mg/l) reflects levels that
are only achieved in municipal wastewater effluent through active treatment such as chemical
precipitation or chemical precipitation and filtration. Without a permit limit, this facility will
not be required to continue actively treating for phosphorus removal. Without this treatment,
phosphorus discharge levels would be expected to be an order of magnitude higher which
would result in a reasonable potential finding. It would have been appropriate to include
monitoring requirements for total phosphorus in the permit in order to establish a robust data
set for assessing treatment efficiency and for characterizing the effluent.
The permit that was issued to McCain Foods USA, Inc. (ME0036218) contains a mass limit for
total phosphorus of 63 lbs/day. This limit is based on a reasonable potential analysis and a
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calculation based on meeting 100 ug/l in the receiving water under 7Q10 flow conditions. The
Fact Sheet contains a thorough discussion of water quality status and previous modeling
efforts. In order to address high levels of downstream algae, a model was developed in 2004
that recommended a discharge limit of 10 lbs/day for total phosphorus. A more current 2013
data report indicates that while the biology of the receiving water is relatively healthy, the
system is still enriched with supersaturated dissolved oxygen levels as high 13.6 mg/l. This
report recommended a 50% reduction in phosphorus loads. McCain Foods was discharging
approximately 60 lbs/day of phosphorus when this study was conducted. The Gold Book based
target of 100 ug/l is for free flowing rivers. Given the impoundments on this receiving water,
and the evidence that a 63 lb/day phosphorus limit is not sufficient to control cultural
eutrophication, the Gold Book target of 50 ug/l total phosphorus for impounded rivers would
have been a more appropriate criteria target.
2, Pesticides
On October 31, 2011, the EPA issued a final NPDES Pesticide General Permit (PGP) for
Discharges from the Application of Pesticides. This action was in response to a 2009 decision by
the U.S. Sixth Circuit Court of Appeals (National Cotton Council of America v. EPA. 553 F.3d 927
(6th Circuit 2009)) in which the court vacated EPA's 2006 Final Rule on Aquatic Pesticides
(71 Fed. Reg. 68483, November 27, 2006) and found that point source discharges of biological
pesticides and chemical pesticides that leave a residue, into waters of the U.S. were pollutants
under the CWA. The federal PGP applies where the EPA is the permitting authority. All
delegated state NPDES authorities, including Maine, have issued state pesticide general permits
that are consistent with EPA's 2011 PGP. This PGP was reissued and became effective on
November 1, 2016 with only minor changes and the delegated States have reissued or are in
the process of reissuing their respective permits that authorize the discharges associated with
pesticide application from the four (4) use patterns outlined in EPA's PGP.
Background
On January 7, 2009, the Sixth Circuit vacated the EPA's 2006 NPDES Pesticides Rule under a
plain language reading of the CWA. National Cotton Council of America v. EPA. 553 F.3d 927
(6th Circuit 2009). The Court held that the CWA unambiguously includes "biological pesticides"
and "chemical pesticides that leave a residue" within its definition of "pollutant." In response to
this decision, on April 9, 2009, EPA requested a stay of the mandate to provide the Agency time
to develop general permits, to assist NPDES-authorized states to develop their NPDES permits,
and to provide outreach and education to the regulated community. The U.S. Court of Appeals
for the Sixth Circuit granted EPA's request for an extension for when permits would be required
to October 31, 2011.
ME DEP has issued four General Permits listed in the table below that cover the 4 use patterns
of EPA's PGP. All of these permits were reviewed for the 2016 Maine PQR, with a focus on
verifying their consistency with NPDES program requirements.
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Review Focus
NPDES ID
Facility Name
PESTICIDES
MEG140000
APPLICATION OF AQUATIC PESTICIDES FOR THE CONTROL OF MOSQUITO BORNE DISEASES
PESTICIDES
MEG230000
GP FOR THE DISCHARGE OF PESTICIDES
PESTICIDES
MEG150000
APPLICATION OF HERBICIDES FOR THE CONTROL OF INVASIVE AQUATIC PLANTS
PESTICIDES
MEG180000
APPLICATION OF PISCICIDES FOR THE CONTROL OF INVASIVE FISHES
Program Strengths
Maine DEP issued four separate General Permits for different use patterns (control of mosquito
borne disease, discharge of pesticides, control of invasive aquatic plants, and control of invasive
fishes), all of which are consistent with EPA's PGP. The permit for invasive aquatic plants goes
beyond EPA's PGP in requiring water quality monitoring at lake outlets for some larger
applications. Aside from MEG150000 which is currently in the process of being reissued, all
other GPs are in effect.
Critical Findings
Notices of Intent are submitted in hard copy and transition to electronics submission is required
by 2020. Due to ongoing NPDES delegation efforts in Maine, there are 2 northern tribes where
neither EPA nor Maine DEP had jurisdiction. Therefore, neither State or Federal PGP permits
apply on these tribal lands at this time. Otherwise, no critical findings were identified for the
PGP.
3, Pretreatment
The general pretreatment regulations (40 CFR 403) establish responsibilities of federal, state,
and local government, industry and the public to implement pretreatment standards to control
pollutants from industrial users which may cause pass through or interfere with POTW
treatment processes or which may contaminate sewage sludge
Background
The goal of this pretreatment program review was to assess the status of the pretreatment
program in Maine, as well as assess specific language in POTW NPDES permits. Maine is
authorized to implement the pretreatment NPDES program components. With respect to
NPDES permits, focus was placed on the following regulatory requirements for pretreatment
activities and pretreatment programs:
40 CFR 122.42(b) (POTW requirements to notify Director of new pollutants or
change in discharge);
40 CFR 122.44(j) (Pretreatment Programs for POTWs);
40 CFR 403.8 (Pretreatment Program Requirements: Development and
Implementation by POTW);
40 CFR 403.9 (POTW Pretreatment Program and/or Authorization to revise
Pretreatment Standards: Submission for Approval);
40 CFR 403.12(i) (Annual POTW Reports); and
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40 CFR 403.18 (Modification of POTW Pretreatment Program).
The PQR also summarizes the following: Program Oversight (number of audits and inspections
conducted; numbers of significant industrial users (SIUs) in approved pretreatment programs;
numbers of categorical industrial users (CIUs) discharging to municipalities that do not have
approved pretreatment programs); and the status of implementation of changes to the general
pretreatment regulations at 40 CFR part 403 adopted on October 14, 2005 (known as the
streamlining rule).
The pretreatment universe in Maine includes 11 approved local industrial pretreatment programs,
which regulates 110 significant industrial users (SIUs) and 45 categorical industrial users (CIUs)
The Maine Department of Environmental Protection (ME DEP) maintains a master permit
pretreatment section (permit language) that contains standard wording for all new and re-issued
MEPDES permits for POTWs with approved IPPs.
Program Strengths
Pretreatment Compliance Inspections (PCIs) and Audits - MEPDES has consistently and
diligently exceeded its EPA Performance Partnership Agreement commitments for conducting
PCIs and Pretreatment Audits. Maine has eleven (11) approved IPPs and a quarterly PCI or
Audit has been conducted without exception over the past 15 years. All 11 IPPs have had a PCI
or Audit performed over the last two (2) calendar years, and for the 2016 fiscal year, eight (8)
oversight events were performed (5 PCIs and 3 Audits). This far exceeds the Compliance
Monitoring Strategy inspection goals as well as the PPA commitment.
Mercury Dental Amalgam Program - In 2003 Maine Statute Title 38: Waters and Navigation,
Chapter 16-B: Mercury-added Products and Services, was modified. §1667.3 Amalgam
separator system requirements stipulate that the applicable dental practices are required to
have their separators installed and operational, not later than 12/31/04 for existing practices.
Maine was one of the first States in the country to mandate amalgam legislation. The original
information from dental facilities regarding the use and maintenance of Dental Amalgam
Separator Units was tracked by ME DEP.
Pharmaceutical Take-Back Program - Since 2011 Maine has implemented a drug take-back
program. DEP's involved in the State workgroup initially, was to address both the flushing of
drugs into sewer or septic systems, and the disposal of drugs into landfills. It is now managed by
the Department of Health and Human Services, in coordination with the Maine DEA, and local &
state police.
Household Hazardous Waste Collection Days (HHW) - HHW collection days are sponsored once
a year in most of the substantial pretreatment communities resulting in less waste being
disposed into the sewer system.
Critical Findings
There were none noted.
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4. Stormwater
Background
The Clean Water Act requires stormwater discharges from certain municipal separate storm
sewer systems (MS4s), industrial activities, and construction sites to be authorized by an NPDES
Permit. Generally, the EPA and NPDES-authorized states issue individual permits for medium
and large municipalities and general permits for small MS4s, industrial activities, and
construction activities. ME DEP issues its stormwater general permits pursuant to the
Department's federally-delegated NPDES program.
As part of this PQR, EPA reviewed the following three general permits, which are associated
with the regulation of stormwater discharges and administered by ME DEP:
General Permit for stormwater discharges from Small Municipal Separate Storm Sewer
Systems (2013); NPDES # MER040000
Multi-Sector General Permit for Stormwater Discharges Associated with Industrial
Activity (2016); NPDES # MER050000
General Permit for Stormwater Discharges Associated with Construction Activity (2006);
NPDES #MER01000
Findings are presented separately for the municipal, industrial and construction stormwater
permits.
Stormwater Discharges from Municipal Separate Storm Sewer Systems
Background
The Maine Small MS4 General Permit that was reviewed was issued in 2013. The reviewed
permit was the third iteration of the MS4 General Permit. The DEP issued their first general
permit in 2003 and re-issued in 2008 and 2013. The DEP has formed a stake holder group as
they begin preparation for reissuance of the 2013 permit.
Program Strengths
ME DEP has timely reissued this permit. The general permit also addresses state and federal
municipalities and transportation agencies such as Maine Department of Transportation and
Maine Turnpike Authority. The program includes a focus on Urban Impaired Stream
watersheds. It also includes language which states that the permit does not authorize
discharges that causes or contribute to an impairment or a discharge that is not consistent with
an approved TMDL. Stormwater Management Programs (SWMPs) must be submitted to DEP
for review.
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Critical Findings
Reissued permit must be consistent with revised stormwater regulations at 40 CFR§§
122.33,122.34 and 122.35. All permit terms in the reissued permit must be expressed
in clear, specific, and measureable terms.
The reissued permit should be more prescriptive regarding illicit discharge detection and
elimination including schedules and milestones.
Clarification regarding a permittee's ability to rely on the state's construction general
permit or the Chapter 500 laws for meeting the requirements of 40 CFR 122.34(b)(4)
must be included in the reissued permit. DEP must document how these referenced
programs adequately comply with the requirements of 40 CFR 122.34(b)(4).
Post construction performance standard should be included in the reissued permit.
Refer to EPA's Compendium of Permitting Approaches (EPA 830-S-16-002, Nov 2016) for
examples.
Include specific provisions for discharges to impaired waters and waters with approved
TMDLs.
Multi-Sector General Permit for Stormwater Discharges Associated with industrial Activity
Background
Many provisions of the Maine Multi-Sector General Permit for Stormwater Discharges
Associated with Industrial Activity are nearly identical to EPA's 2015 MSGP. The Maine MSGP is
available to discharges associated with industrial activity as defined at 40 CFR 122.26(b)(14).
Maine's MSGP became effective on December 7, 2016. EPA reviewed the draft of this permit.
Program Strengths
The permit does not authorize discharges associated with industrial activity to impaired waters
unless the DEP determines that the discharge will not cause or contribute to "...the failure of
the waterbody to meet the standards of classification." The permit also includes prescriptive
narrative effluent limitations which include prohibitions to discharges which contain visible
sheen, materials in concentrations that are hazardous or toxic, or lower the classification of the
waterbody. The permit also includes requirements to address impaired waters and waters with
approved TMDLs.
Critical Findings
The permit does not contain benchmark monitoring for several sectors. While this is DEP's
decision whether or not to include benchmark monitoring, it is important for DEP to ensure
that there are adequate and objective means to assess the adequacy of a facility's stormwater
pollution prevention plan.
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General Permit for Stormwater Discharges from Construction Activity
Background
The permit that was reviewed was issued July 21, 2006 and expired on January 20, 2008. This
permit has been administratively continued. This permit was issued prior to the promulgation
of the Construction and Development Point Source Category (the C & D Rule). The rule became
effective on February 1, 2010. It is unclear whether the state has adopted the C & D effluent
limitation guidelines into state law, but the current permit does contain many requirements
that are consistent with the rule.
Program Strengths
The permit does not authorize discharges the violate water quality standards or are not
consistent with an approved TMDL. The permit does a good job of incorporating many parts of
the C&D rule.
Critical Findings
The current permit is administratively continued and needs to be reissued. Although the
permit does contain some requirements of the C&D Rule, the reissued permit must contain all
requirements of the C&D Rule. The following aspects of the rule appear to be missing:
40 CFR 450.21(f) - Surface outlets - When discharges from basins and impoundments,
utilize outlet structures that withdraw water from the surface, unless infeasible.
40 CFR 450.21(d) - Pollution prevention measures - requirement for wash waters be
treated in sediment basin or alternative control, minimize exposure of materials, and
minimize the discharge of pollutants from spills and leaks and implementation of
chemical spill and leak prevention and response procedures.
40 CFR 450.21(e)(l-4) - Prohibitions of specific discharges such as, but not limited to,
washout of concrete, washout and clean out of stucco, paint, release oils, curing
compounds, other construction materials, fuels, and soaps or solvents.
The permit should include design, installation and maintenance requirements for BMPs.
The permit should include anti-degradation provisions for discharges to Tier 2 or Tier 3
waters.
i\ rroww inn- '-in .mimmmu*-
A. Mixing Zones
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Background
NPDES regulations at 40 CFR § 122.44(d)(l)(ii) requires the permitting authority to consider,
where appropriate, the dilution of the effluent in the receiving water when determining
whether a discharge causes, has the reasonable potential to cause or contributes to an
instream excursion above water quality criterion. This is typically accomplished through the
use of a dilution allowance or a mixing zone. A dilution allowance is typically applied in flowing
waters where rapid and complete mixing occurs and a mixing zone is typically applied in any
waterbody type in which incomplete mixing occurs (Water Quality Standards Handbook,
Chapter 5: General Policies, Section 5.1 [EPA 820-B-14-004]). Federal Regulations at 40 CFR §
131.13 provide for the inclusion of mixing zone policies in state water quality standards. A
mixing zone is a limited area or volume of water where initial dilution of a discharge takes place
and where certain numeric water quality criteria may be exceeded. The narrative and/or
numeric criteria for the waterbody are still the applicable criteria within the boundaries of the
mixing zone; however, a mixing zone simply authorizes an applicable criterion to be exceeded
within a defined area of the waterbody while still protecting the designated use of the
waterbody as a whole. State regulations at 38 M.R.S.A. § 451 authorize ME DEP to establish
"reasonable mixing zones" for waste discharges5. Requirements for the calculation of dilution
factors for purposes of deriving water quality based effluent limitations for freshwater
discharges, for estuaries where tidal flow is dominant and for marine waters, are set forth in
Department Rule Chapter 530.46.
The focus of the mixing zone review is to verify that permits and fact sheets are consistent with
the applicable regulations and that the establishment of mixing zones are documented in the
administrative records.
As part of the 2016 PQR, EPA reviewed seven individual permits with special focus on the
establishment of mixing zones in order to verify overall consistency with NPDES Regulations,
including whether permit requirements are protective of and consistent with State WQS and
whether an adequate basis or rationale for permit decisions are documented. The following
permits were included in the review:
NPDES
Permit No.
Permittee
Facility Type
Receiving Water
(Fresh
Water/Marine)
ME0001911
TEX-TEC INDUSTRIES, LLC
Non-POTW - Minor
Fresh Water
ME0002160
BUCKSPORT MILL LLC
Non-POTW-Major
Marine
ME0021521
S.D. WARREN
Non-POTW-Major
Fresh Water
ME0022320
PENOBSCOT ENERGY RECOVERY COMPANY
Non-POTW-Minor
Marine
ME0023957
ISF TRADING COMPANY
Non-POTW-Minor
Marine
5 State regulations at 38 M.R.S.A. § 451 do not provide criteria for determining whether a mixing zone is, in, fact,
reasonable. Therefore, during the PQR, EPA relied upon national guidance for the development of mixing zone
policies (Water Quality Standards Handbook, Chapter 5: General Policies, Section 5.1 [EPA 820-B-14-004]) to
evaluate consistency with applicable regulations.
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ME0037176
STEPHEN E. GRAY LODGES & INDUSTRIES
Non-POTW-Minor
Marine
ME0037397
ACADIA AQUA FARMS LLC
Non-POTW-Minor
Marine
Program Strengths
Although fact sheets and administrative records varied with respect to the level of detail
provided pertaining to evaluations of the mixing conditions at the point of discharge (i.e.,
whether rapid and complete mixing occurs or whether incomplete mixing, which would
necessitate the application of mixing zones, occurs), the administrative records for five of the
seven permits that were included in the review indicate that the state had assessed whether
rapid and complete mixing occurs (S.D. Warren, Stephen E. Gray Lodges & Industries,
Penobscot Energy Recovery Company, Acadia Aqua Farms LLC and ISF Trading Company).
Though details were not explicitly provided, the fact sheet for the permit that was issued to
Bucksport Mill, LLC references a "tidal velocity model", suggesting that an evaluation of
whether rapid and complete mixing occurs was, in fact, performed. The site-specific mixing
zone that was used in the development of two of the reviewed permits (I.S.F. Trading Company
and Bucksport Mill, LLC) was found to be "reasonable".
Critical Findings
The concerns noted by EPA during its review of four of the five permits that were issued to
facilities which discharge to marine waters (Penobscot Energy Recovery Company, Acadia Aqua
Farms, LLC, Stephen E. Gray Lodges & Industry and Bucksport Mill, LLC) primarily relate to
insufficient documentation in fact sheets and administrative records which would support
determinations of whether rapid and complete mixing occurs at the point of discharge and, if
incomplete mixing occurs, whether mixing zones are reasonable. Specifically, the
administrative records for these four permits did not contain model results and/or spatial
descriptions of the extent of the mixing zones. Additionally, the administrative record for one
of these permits (Bucksport Mill permit) also lacked documentation of the dilution factor that
was calculated for the initial zone of dilution. The dilution factor used in the development of
the limits in one of these permits (Stephen E. Gray Lodges & Industry) was based on best
professional judgment, rather than a model, as required by Chapter 530.4.
EPA found deficiencies in the administrative record of one of the two permits that were issued
to facilities that discharge to freshwaters (S.D. Warren) that were included in the review. No
documentation was provided in the fact sheet to support the Department's determination that
the discharge achieves complete and rapid mixing with the receiving water. Further, a study
that was conducted in 1995 indicates that complete mixing of the discharge with the receiving
water occurs 5.5 miles downstream from the outfall, which suggests that rapid and complete
mixing does not occur.
EPA recommends that all data, models and analyses used in making determinations as to
whether rapid and complete mixing occurs at the point of discharge and, if incomplete mixing
occurs, whether mixing zones are reasonable, be included in Fact sheets. Additionally, fact
sheets should describe how mixing zones are reasonable and will be protective of designated
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uses and are otherwise consistent with Maine Statute (Title 38 § 451) and Department
Regulation (Chapter 530).
B, Bacteria
Background
CWA Section 301(b)(1)(C) requires that permits include any effluent imitations necessary to
meet water quality standards. Federal Regulations at 40 CFR § 122.44(d) require NPDES
permits to include limitations and conditions in addition to or more stringent than promulgated
effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318 and 405 of
CWA necessary to achieve water quality standards established under Section 303 of CWA,
including state narrative criteria. Water quality criteria for bacteria are set forth in the State of
Maine's Standards for Classification of Fresh Surface Waters at Title 38 § 465, and in the
Standards for Classification of Estuarine and Marine Waters at Title 38 § 465-B.
As part of the 2016 PQR, EPA reviewed six municipal (POTW) permits, three of which were
issued to facilities which discharge to marine waters and three of which were issued to facilities
that discharge to fresh water bodies, with special focus on the bacteria requirements in order
to verify overall consistency with NPDES Regulations, including whether permit requirements
are protective of and consistent with State WQS and whether an adequate basis or rationale for
permit decisions are documented. The following permits were included in the review:
NPDES
Permit No.
Permittee
Facility Type
Receiving Water (Fresh
Water/Marine)
ME0100757
TOWN OF WISCASSET
POTW - Minor
Marine
ME0101214
TOWN OF BAR HARBOR
POTW - Major
Marine
ME0101184
TOWN OF KENNEBUNKPORT
POTW - Major
Marine
ME0100854
KENNEBEC SANITARY TREATMENT DISTRICT
POTW - Major
Fresh Water
ME0100391
MECHANIC FALLS SANITARY DISTRICT
POTW - Major
Fresh Water
ME0101478
LEWISTON AUBURN WATER POLLUTION CONTROL
AUTHORITY
POTW - Major
Fresh Water
Program Strengths
Each of the permits reviewed contain bacteria requirements, specifying the sample type (grab)
and sampling frequency. The permits also specify that monthly average (chronic) limits are
geometric mean limits, and that the results are to be reported as such.
Critical Findings
The concerns noted by EPA in its evaluation of the bacteria provisions in the reviewed permits
were primarily related to inconsistencies with state water quality standards and insufficient
documentation of the basis for permit requirements. Three of the reviewed permits (Town of
Bar Harbor POTW, Town of Kennebunkport POTW and Town of Wiscasset POTW) were issued
to facilities that discharge to marine waters which have been classified by the State of Maine as
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Class SB waters. See Classification of Estuarine and Marine Waters, 38 M.R.S. § 469. The
bacteria limitations in each of these permits are inconsistent with the State water quality
standards for such waters. Specifically, seasonal enterococci limits, which would provide for
the protection of the recreational designated use(s) of the receiving waters, were not included
in any of the permits, and two out of the three permits that were reviewed (Bar Harbor POTW
and Wiscasset POTW) do not contain year-round fecal coliform limits consistent with the
criteria established in the National Shellfish Sanitation Program (NSSP), which are incorporated
by reference into the state water quality standards at 38 § 465-B.2.B , to ensure protection of
the shellfishing designated use of the receiving waters.
Three of the reviewed permits were issued to facilities which discharge to fresh waters
(Kennebec Sanitary Treatment District POTW, Mechanic Falls POTW and Lewiston-Auburn
POTW). Two of these facilities (Kennebec Sanitary Treatment District POTW and Mechanic Falls
POTW) discharge to receiving waters which have been classified by the state of Maine as Class
B waters, and one facility (Lewiston-Auburn POTW) discharges to a receiving water that has
been classified by the State as a Class C water. See Classification of Major River Basins, 38
M.R.S.A. § 467. All three of these permits included average monthly limitations for E. coli which
are consistent with the criteria set forth in the State water quality standards. The Fact Sheets
for two of the permits (Lewiston-Auburn POTW and Mechanic Falls Sanitary District POTW)
indicate that the daily maximum limits will ensure attainment of the instantaneous maximum E.
coli criterion established in the State water quality standards through the available dilution of
the effluent with the receiving water; however, the Fact Sheets do not contain any
documentation which would support these conclusions. Similarly, the Fact Sheet for the
Kennebec Sanitary Treatment District POTW does not demonstrate how the daily maximum E.
coli limitation in the permit will result in the achievement of the instantaneous maximum
criterion in the State Water Quality Standards.
Monitoring frequencies in re-issued permits are established in accordance with the Interim
Guidance for Performance-Based Reduction of NPDES Permit Monitoring Frequencies (USEPA
April 1996 [EPA 833-B-96-00]), supplemented by State guidance entitled Performance-Based
Reduction of Monitoring Frequencies - Modification of EPA Guidance Released April 1996 (ME
DEP May 22, 2014). The bacteria monitoring frequencies in all but one of the reviewed permits
(Wiscasset POTW) had been reduced from the prior permits. Although the Fact Sheets for all of
these permits state that these reductions are consistent with the Interim Guidance for
Performance-Based Reduction of NPDES Permit Monitoring Frequencies (USEPA April 1996 [EPA
833-B-96-00]), none of the permits contained language stipulating that "should the facility
experience operational problems resulting in significant non-compliance, or subsequent
enforcement, then the Department reserves the right to reopen the permit and revoke the
testing reductions that have been granted", as required by the Performance-Based Reduction of
Monitoring Frequencies (ME DEP May 2014). Additionally, the records for two of the reviewed
permits in which bacteria monitoring frequencies had been reduced (Bar Harbor POTW and the
Kennebunkport POTW, both of which discharge to Class SB waters with shellfishing designated
uses) lacked documentation indicating that the Department of Marine Resources was consulted
prior to granting these reductions, as required by Maine's Performance-Based Reduction of
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Monitoring Frequencies - Modification of EPA Guidance Released April 1996 (ME DEP May 22,
2014) when the discharge is to a receiving water that is designated for shellfish harvesting.
The frequency of bacteria testing required in the permits that were reviewed range from a
minimum of twice per month to a maximum of twice per week. EPA notes that the frequency
of required bacteria testing is concerning, as it is unclear how such minimal testing would be
sufficient to ensure adequate protection of the receiving waters, particularly the recreation and
shellfishing designated uses.
C Whole Effluent Toxicity/Reasonable Potential Determination
Background
Section 101(a)(3) of the CWA prohibits the discharge of toxic pollutants in toxic amounts. CWA
Section 301(b)(1)(C) requires that permits include any effluent imitations necessary to meet
water quality standards (WQS). Sections 402(a)(2) and 308 (a) of the CWA authorize EPA to
establish toxicity testing requirements and toxicity-based permit limits in NPDES permits.
Section 308 specifically states that biological monitoring methods may be required when
needed to carry out the objectives of the Act. Under certain narrative State WQS and Sections
301, 303, and 402 of the CWA, EPA and the States may establish toxicity-based limits to
implement the narrative of no toxics in toxic amounts criterion.
Federal Regulations at 40 CFR § 122.44(d)(l)(iv) require NPDES permits to include whole
effluent toxicity (WET) limitations where reasonable potential (RP) has been demonstrated.
The inclusion of limitations in NPDES permits for any pollutant discharged at levels which will
cause, have the reasonable potential to cause, or contribute to an excursion above any State
water quality standard, including State narrative criteria for water quality (i.e., when reasonable
potential (RP) has been demonstrated).
State Statute 38 M.R.S.A. 417 (Certain deposits and discharges prohibited) requires the
regulation of discharges of toxic substances to inland and tidal waters. Maine's Surface Water
Toxics Control Program, set forth at 06-096 CMR 530 (effective March 21, 2012), establishes
effluent monitoring requirements and procedures to establish safe levels for the discharge of
toxic pollutants, including WET, such that existing and designated uses of surface waters are
maintained and protected and that the narrative and numeric water quality criteria, set forth at
06-096 CMR 584 (Surface Water Quality Criteria for Toxics), are met.
As part of the 2016 PQR, EPA reviewed two industrial and two municipal (POTW) permits. Three
of the four permits reviewed were issued to facilities that discharge to fresh water bodies and
one of the permits was issued to a facility which discharges to marine waters. The permits
were reviewed to determine if the permit requirements were protective of, and consistent with
State WQS, compliant with EPA whole effluent toxicity (WET) test methods established at 40
CFR Part 136, whether and how reasonable potential (RP) was determined, and whether an
adequate basis or rationale for permit decisions were documented in the permit's fact sheet
and administrative record.
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The following four permits were included in the review:
NPDES
Permit No.
Permittee
Facility Type
Receiving Water
(Fresh
Water/Marine)
ME0100064
BOOTHBAY HARBOR SEWER DISTRICT
POTW - Major
Marine
ME0100625
TOWN OF SKOWHEGAN
POTW - Major
Fresh Water
ME0000159
TWIN RIVERS PAPER COMPANY LLC
NON-POTW- Major
Fresh Water
ME0002160
BUCKSPORT MILL LLC
NON-POTW- Major
Fresh Water
Program Strengths
Maine implements the statistical approach described in EPA's Technical Support Document for
Water Quality Based Toxics Control (EPA/505/2-90-001. March 1991) (the "TSD") when making
RP determinations for WET. If RP is demonstrated, appropriate WET limits, including those for
chronic sublethal endpoints, are included in permits, in accordance with State regulations (06-
096 CMR 530, Surface Water Toxics Control Program). Specific WET testing requirements are
established in accordance with criteria set forth in Department Rule Chapter 530. Three of the
four permits reviewed (Boothbay Harbor Sewer District, Twin Rivers Paper Company, LLC. And
the Town of Skowhegan) contained WET limits as well as monitoring requirements for both
acute and chronic WET tests (including sublethal endpoints) which were established in
accordance with Department Rule 06-096 CMR 530. The permit that was issued to Bucksport
Mill LLC did not contain any WET limitations or monitoring requirements based on a
determination by that state that there was no impact to aquatic life in the receiving water into
which the discharge occurs.
The use of EPA's 40 CFR Part 136-approved WET species was specified in each of the permits
that contained acute WET testing requirements and in two of the reviewed permits that
contained chronic WET testing requirements. However, two of the permits (Twin Rivers Paper
Company LLC and the Town of Skowhegan) required the use of a non-promulgated chronic fish
test species (see below).
Critical Findings
EPA's review of these four permits with respect to the state's NPDES WET implementation
identified the following primary concerns: monitoring frequency, insufficient permit
documentation for some of the permits and how EPA's regulations that pertain to reasonable
potential were referenced in Maine's law and permit language, as described below.
Two of the reviewed permits (Boothbay Harbor and Town of Skowhegan) require WET testing
to be conducted once per year. This frequency of required WET testing concerning, as it is
unclear how such minimal testing would provide data that is representative of the discharge,
especially where surveillance level tested has been waived. It is recommended that the
rationale for determining minimum monitoring frequencies be documented in administrative
records.
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The administrative records for three of reviewed permits generally lacked sufficient
documentation supporting which would support the reasonable potential determinations and
permit requirements described in the fact sheets. It was unclear from the fact sheet which
accompanied the permit that was issued to the Boothbay Harbor Sewer District permit as to
which statistical method was applied to the analysis of WET test results. The basis for the WET
RP determination as well as the data that was evaluated was not provided in the fact sheet for
the permit that was issued to the Town of Skowhegan (i.e., the finding that the discharge from
this facility does not present reasonable potential to cause or contribute to an excursion above
state water quality standards appears to be based on the result of a single screening level acute
and chronic test (September 2012)). The fact sheet for the Bucksport Mill, LLC permit lacked
documentation of any effluent characterization which would support the determination there is
no reasonable potential for WET, and that neither WET limits nor monitoring requirements
were necessary. All information relative to reasonable potential determinations, including the
methodology applied, data and calculations and/or analyses that were performed, should be
well documented and clearly presented in fact sheets and/or the administrative record.
The fact sheets for three of the reviewed permits (Boothbay Harbor Sewer District, Twin Rivers
Paper Company LLC and the Town of Skowhegan) lacked sufficient documentation of the
establishment of certain WET test requirements. The fact sheet for the Boothbay Harbor Sewer
District lacked documentation concerning Maine's approval of alternate methods for
"sampling" for WET tests with no mention of EPA's approval of the alternate methods
authorized by Maine. The Twin Rivers Paper Company LLC and the Town of Skowhegan permits
used an un-promulgated WET species (freshwater brook trout, Salvelinus fontinalis) in their
chronic freshwater testing without an EPA alternative test procedure approval in place. When
using the chronic brook trout test, Maine conducts these tests according to EPA WET test
methodology but for a different freshwater fish species, fathead minnow (Pimephales
promelas). The justification for authorizing any deviation from approved test procedures and
protocols should be provided in fact sheets.
D. Toxics
Background
CWA Section 101(a)(3) sets forth the national policy of prohibiting the "discharge of toxic
pollutants in toxic amounts." Under CWA Sections 301(b)(1)(C) and Section 402, all NPDES
permits must comply with any more stringent limitations necessary to meet applicable WQS,
whether numeric or narrative. Federal Regulations at 40 CFR § 122.44 cover the National
Surface Water Toxics Control Program and are linked to the requirements to achieve WQS and
specifically address the control of pollutants both with and without numeric criteria. Federal
regulations at 40 CFR § 122.44(d)(1) require NPDES permits to include limitations where
reasonable potential has been demonstrated.
State Statute 38 M.R.S.A. 417 (Certain deposits and discharges prohibited) requires the
regulation of discharges of toxic substances to inland and tidal waters. Maine's Surface Water
Toxics Control Program, set forth at 06-096 CMR 530 (effective March 21, 2012), establishes
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effluent monitoring requirements and procedures to establish safe levels for the discharge of
toxic pollutants such that existing and designated uses of surface waters are maintained and
protected and that the narrative and numeric water quality criteria, set forth at 06-096 CMR
584 (Surface Water Quality Criteria for Toxics), are met. In addition, Department Rule Chapter
519, Interim Effluent Limitations and Controls for the Discharge of Mercury, establishes controls
on the discharge of mercury to the surface waters of the State through interim effluent limits
and implementation of pollution prevention plans (06-096 CMR 519).
EPA reviewed two industrial and two municipal (POTW) permits as part of the 2016 PQR with a
focus on permit conditions pertaining to toxics and how procedures for determining reasonable
potential are applied in permits. Specifically, permits were evaluated to determine whether
permit requirements were protective of and consistent with State WQS, whether and how
reasonable potential was determined, and whether an adequate basis or rationale for permit
decisions were documented in the permit's fact sheet and administrative record.
The following four permits were included in the review:
NPDES
Permit No.
Permittee
Facility Type
Receiving Water (Fresh
Water/Marine)
ME0100064
BOOTHBAY HARBOR SEWER DISTRICT
POTW - Major
Marine
ME0100625
TOWN OF SKOWHEGAN
POTW - Major
Fresh Water
ME0000159
TWIN RIVERS PAPER COMPANY LLC
NON-POTW - Major
Fresh Water
ME0002160
BUCKSPORT MILL LLC
NON-POTW - Major
Fresh Water
Program Strengths
Maine implements the statistical approach described in EPA's Technical Support Document for
Water Quality Based Toxics Control (EPA/505/2-90-001. March 1991) (the "TSD") when making
RP determinations for toxics. If RP is demonstrated, appropriate limits are included in permits,
in accordance with State regulations (06-096 CMR 530, Surface Water Toxics Control Program).
Specific testing requirements are established in accordance with criteria set forth in
Department Rule Chapter 530. Three of the four permits reviewed (Boothbay Harbor Sewer
District, Twin Rivers Paper Company, LLC. And the Town of Skowhegan) contained analytical
chemistry and priority pollutant monitoring requirements which were established in
accordance with Department Rule 06-096 CMR 530 and also included mercury limitations which
were consistent with the limitations set forth in Department Rule Chapter 519, Interim Effluent
Limitations and Controls for the Discharge of Mercury.
The fact sheet for the permit that was issued to Bucksport Mill LLC included a description of
how the methodology established in EPA's TSD was used in conducting the reasonable potential
analysis for metals during the development of the permit, including comparing the highest
instream concentrations against EPA's recommended RP factor and subsequently applying the
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dilution factor to the applicable water quality criteria which resulted in a determination that
the discharge did not present reasonable potential under either acute or chronic conditions.
Critical Findings
Language found in Maine's laws (38 M.S.R.A. Section 414-A and Section 420 and CMR 530(2)(A)
and (3)(E)) as well as in the reviewed permits regarding reasonable potential determinations
were inconsistent with EPA's regulations. Specifically, language found in the aforementioned
state laws and in the permits that were reviewed reference two parts of EPA's NPDES RP
regulations (40 CFR Part 122.44(d)(1)) of cause and contribute but not the "reasonable potential
to cause." Although a Maine DEP representative did clarify that this was an unintended
omission and that DEP does in fact assess RP using all three parts of EPA's NPDES RP
regulations, which was reflected in fact sheets of the permits that were reviewed, it is
recommended that the language pertaining to reasonable potential that is referenced in both
state law and in permits be consistent with the language contained in the federal regulations.
The basis for the establishment of permit requirements and conditions relevant to toxic
pollutants was not adequately documented in the administrative records of three of the
permits that were reviewed (Twin Rivers Paper Company LLC, Town of Skowhegan and
Boothbay Harbor). The fact sheet for the permit that was issued to the Twin Rivers Paper
Company LLC indicates that a statistical analysis to evaluate RP was completed on 7/8/14;
however, neither the data nor the analysis was provided. The fact sheet for the permit that
was issued to the Town of Skowhegan's permit also did not include the statistical evaluation of
effluent data which would support the determination that RP was not demonstrated under
either acute or chronic conditions. The fact sheet for the Boothbay Harbor permit references a
statistical evaluation of chemical-specific effluent data that resulted in a "no reasonable
potential" determination. Neither the data nor the statistical evaluation of the data that was
referenced in the fact sheet was provided. It is recommended that all data and analyses relied
upon in making reasonable potential determination as well as any applicable documentation
which supports a reasonable potential determination, permit limit and/or condition be included
in the fact sheets/administrative records.
₯. 15
This section provides a summary of the main findings of the review and provides proposed
action items to improve Maine's NPDES permit programs. This list of proposed action items will
serve as the basis for ongoing discussions between U.S. EPA Region 1 and ME DEP as well as
between Region 1 and EPA Headquarters. These discussions should focus on eliminating
program deficiencies to improve performance by enabling good quality, defensible permits
issued in a timely fashion.
The proposed action items are divided into three categories to identify the priority that should
be placed on each Item and facilitate discussions between Regions and states.
Critical Findings (Category One) - Most Significant: Proposed action items will address a
current deficiency or noncompliance with respect to a federal regulation.
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Recommended Actions (Category Two) - Recommended: Proposed action items will
address a current deficiency with respect to EPA guidance or policy.
Suggested Practices (Category Three) - Suggested: Proposed action items are listed as
recommendations to increase the effectiveness of the state's or Region's NPDES permit
program.
The critical findings and recommended actions proposed should be used to augment the
existing list of "follow up actions" currently established as an indicator performance measure
and tracked under EPA's Strategic Plan Water Quality Goals or may serve as a roadmap for
modifications to the Region's program management.
A. Basic Facility Information and Permit Application
The core permits reviewed specifically authorize the discharge subject to specified permit
conditions and in combination with the associated fact sheets provide basic information
regarding the facility, the receiving water, and the permitting action. Maine DEP's POTW
permit application does not appear to request the same data as federal EPA forms. Proposed
action items to help Maine DEP strengthen its NPDES permit program include the following:
Ensure that permits identify the physical location (i.e., latitude and longitude) of
outfalls. (Category One).
Ensure that state permit application forms contain data collection requirements as
stringent as federal application forms including required effluent testing results, latitude
and longitude. (Category One).
Ensure that administrative records contain documentation of waivers of the
requirements in EPA application Form 2A due to having access to previously submitted
information, which is substantially identical to the information required by Form 2A.
(Category One).
Dlogy-based Effluent Limitations
The limits in the core POTW permits reviewed are consistent with secondary treatment
requirements. Similarly, non-POTW permits appear to implement required TBELs. Proposed
action items to help Maine DEP strengthen its NPDES permit program include the following:
For non-POTW permits, ensure that fact sheets adequately identify which subcategories
and standards apply for facilities subject to ELGs and indicate the basis for
categorization. (Category Two).
Also see V. G., Documentation, below.
, Water Quality-Based Effluent Limitations
Maine DEP employs a watershed-based approach to calculating wasteload allocations. Based on
available documentation, the core permits reviewed include limits for discharges of pollutants
identified as having caused, had the reasonable potential to cause, or contributed to an excursion of the
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state's water quality criteria. Proposed action items to help Maine DEP strengthen its NPDES
permit program include the following:
Ensure that reasonable potential analyses are conducted for the purpose of determining
whether a water quality-based effluent is needed, not for evaluating whether an
existing water quality based effluent limitation remains protective of water quality
standards (Category Two).
Also see V. G., Documentation, below.
D, Monitoring a sorting
The core permits reviewed require monitoring for all of the parameters subject to permit limits
and such monitoring requirements appear sufficient to assess compliance with effluent
limitations. Proposed action items to help Maine DEP strengthen its NPDES permit program
include the following:
Monitoring/sampling locations should be specified in permits to ensure samples are
representative and that monitoring results can be used to assess compliance. (Category
Two).
Ensure that all permits require use of sufficiently sensitive 40 CFR Part 136 method
capable of quantifying pollutants at concentrations equal to or less than the limits.
Existing permit language does not appear to reflect EPA's Sufficiently Sensitive Methods
rule. (Category Two).
Recommend more explicitly requiring monitoring of influent for BOD and TSS. (Category
Three).
E, Standard and Sped ditions
The permits reviewed include standard conditions that are based on Maine DEP regulations and
in general, these standard conditions are consistent with federal standard conditions. MEPDES
permits also include a broad range of what are deemed special permit conditions that address
both discharge limits (and associated monitoring and reporting) and specific state program
requirements and facility characteristics. Proposed action items to help Maine DEP strengthen
its NPDES permit program include the following:
Ensure that standard conditions clearly identify applicable civil and criminal penalties.
(Category Two).
Update relevant standard conditions consistent with the schedule specified in 40 CFR
123.62(e) to be consistent with EPA Electronic Reporting Rule. (Category Two).
F, Administrative Process (including public notice)
Maine regulations provide that DEP notify stakeholders when an application has been
submitted. These notices were identified in the permit files for some permits, but not all.
Comments on a draft permit can be submitted until the permit is finalized and generally fact
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sheets indicated if comments were received and included responses to significant comments.
Proposed action items to help Maine DEP strengthen its NPDES permit program include the
following:
Over the next several years, EPA will work with Maine on revising certain parts of
Maine's state permitting regulations. This will provide the opportunity to ensure that
Maine's regulations provide for adequate public notice of DEP's draft major permits, as
required by 40 CFR 124.10(a). (Category Two).
Maintain the public notice for each MEPDES permit in the respective permit file to
document compliance with public participation requirements. (Category Two).
Maintain comments received on each draft permit in respective the permit file or
indicate where such comments are maintained. (Category Two).
G. Documentation (including fact sheet)
The fact sheets for the core permits reviewed include an extensive discussion of the basis for
facility-specific requirements. The permit files include appropriate support documents
including draft and final permits and fact sheets, permit applications, correspondence, DMR
and effluent data, water quality analyses, public notice letters and other documents. Proposed
action items to help Maine DEP strengthen its NPDES permit program include the following:
Ensure fact sheets discuss anti-backsliding when effluent limitations are less stringent
than those in the previous permit, or not carried forward from the previous permit,
including a discussion of consistency with applicable anti-backsliding exceptions.
(Category One).
Ensure that justification for the selection of a technology-based permit limit over a
water quality based limit, which appears to be more stringent and consistent with water
quality standards, is provided in fact sheets. (Category One).
Ensure fact sheets discuss antidegradation when new or increased discharges are
permitted. Discussion should address applicability of antidegradation and describe how
antidegradation requirements have been met. (Category One).
Ensure that correct, completed permit application forms are maintained in permit files.
(Category Two).
Ensure that the derivation of all TBELs is discussed in the pertinent fact sheet. (Category
Two).
Include in the permit fact sheet or file a summary of data evaluated in the reasonable
potential analysis and discuss results of the reasonable potential analysis (DETOX report
summary). (Category Two).
When applicable, include or reference in the permit file documentation any mixing zone
analysis. (Category Two).
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Where an ELG is applicable, fact sheets should provide a quantitative comparison of the
technology-based limit derived from the ELG to the corresponding water-quality based
limit, rather than merely a conclusory statement on the relative stringency. (Category
Two).
Recommend describing the receiving water designated use in the fact sheet rather than
relying on classification codes. (Category Three).
Recommend that all fact sheets indicate who commented on the relevant draft permit,
even if comments are not deemed significant. (Category Three).
Ensure that documentation of improvements in water quality is not a sufficient reason
for invoking the anti-backsliding exception of "new information." Improvements in
water quality, with the reasons indicating no reasonable potential, should not be reason
for removing an existing limit. Water quality improvements are expected by permit
limits and will not be sustained if permit limits are then relaxed. (Category Two).
Recommend that standard language regarding anti-degradation requirements be added
to fact sheets. (Category Three)
Recommend including in fact sheets a discussion of how water quality standards will be
met when a limit based on an ELG is selected for inclusion in a permit over a WQBEL
which would appear to be more stringent (Category Three).
H, Nation ic Areas
Proposed actions items for core topic areas are provided below.
I. Nutrients
Proposed action items to help Maine strengthen its NPDES permit program include the
following:
Fact Sheets should include up to date reasonable potential analyses conducted using
current receiving water and effluent data and, where appropriate, limitations and/or
monitoring requirements should be included in permits when the currently available
information indicates such requirements are necessary to prevent water quality
impairments and/or to restore water quality. (Category One).
Existing permit limits based on waste load allocations developed years earlier should be
re-evaluated to determine whether such limits remain sufficient for ensuring adequate
protection of the quality of the receiving water. (Category Two)
Appropriate instream Gold Book target values should be applied to reasonable potential
analyses and limit calculations for total phosphorus, or another sound technical basis,
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should be used and documented for translating narrative nutrient criteria for reasonable
potential analyses and limit calculations (Category two).
ME DEP should ensure the ambient water quality and effect data is collected during the next
permit term to enable a more robust reasonable potential determination in the next permit
cycle. (Category Three).
Monitoring requirements for total phosphorus should be included in permits in order to
establish a robust data set for assessing treatment efficiency and for characterizing the
effluent. (Category Three).
2, Pesticides
The Pesticides General Permit appears to be consistent with program requirements. No action
items are proposed based on this PQR.
3, Pretreatment
The pretreatment permit requirements appear to be consistent with program requirements.
No action items are proposed based on this PQR.
4, Stormwater
Action items are presented separately for municipal, industrial and construction stormwater
permits. Proposed action items to help Maine strengthen its NPDES permit program are
provided below.
Stormwater Discharges from Municipal Separate Storm Sewer Systems
Reissued permit must be consistent with revised stormwater regulations at 40 CFR§§
122.33,122.34 and 122.35. (Category One).
Clarification regarding a permittee's ability to rely on the state's construction general
permit or the Chapter 500 laws for meeting the requirements of 40 CFR 122.34(b)(4)
must be included in the reissued permit. DEP must document how these referenced
programs adequately comply with the requirements of 40 CFR 122.34(b)(4). (Category
One).
All permit terms in the reissued permit must be expressed in clear, specific, and
measureable terms. (Category One).
The reissued permit should be more prescriptive regarding illicit discharge detection and
elimination including schedules and milestones. (Category Two).
Post construction performance standard should be included in the reissued permit.
Refer to EPA's Compendium of Permitting Approaches (EPA 830-S-16-002, Nov 2016) for
examples. (Category Two).
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Include specific provisions for discharges to impaired waters and waters with approved
TMDLs. (Category Two).
Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity
In the absence of including benchmark monitoring in the permit for several sectors, DEP
should ensure that there are adequate and objective means to assess the adequacy of a
facility's stormwater pollution prevention plan. (Category One).
General Permit for Stormwater Discharges from Construction Activity
Reissue the General Permit for Stormwater Discharges from Construction Activities,
which expired in 2008. (Category One).
All of the requirements of the Construction and Development (C&D) rule, which became
effective on February 1, 2010, must be included in the reissued permit. (Category One)
I. Region ic Areas
Proposed action items for special focus areas are provided below.
1. Mixing Zones
Proposed action items to help MEDEP strengthen its NPDES permit program include the
following:
All data, models and calculations used to derive mixing zones should be provided in Fact
Sheets along with an explanation of whether the mixing zone is reasonable and
protective of designated uses and are otherwise consistent with state statute (Title 38 §
451) and Department regulations (Chapter 530). (Category Two).
2,, Bacteria
Proposed action items to help Maine strengthen its NPDES permit program include the
following:
Permits should include limits for all bacterial indicator organisms for which criteria have
been established for the protection of all designated uses assigned to the class of the
receiving water into which the discharge(s) occur. (Category One).
Limits should more closely reflect the water quality standards for recreational and
shellfishing designed uses. (Category One).
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Fact Sheets should clearly articulate how limits are consistent with, and will ensure
attainment of, applicable criteria. (Category Two).
Fact Sheets and/or administrative records should include an explanation of how
reduced monitoring frequencies are sufficient for ensuring adequate protection of
water quality standards. (Category Two).
3. Whole Effluent Toxicity (WET)
Proposed action items to help Maine strengthen its NPDES permit program include the
following:
Permits should specify the use of only EPA-promulgated WET test species (40 CFR Part
136). The state should seek EPA Rl's approval to use an alternate test species when a
determination has been made that use of test species with a higher degree of sensitivity
is appropriate. Documentation of EPA's approval of the use of an alternate test species
should be included in the permit's fact sheet and administrative record. Any references
to the use of an alternative test species or other deviations from EPA's WET test
methods sampling protocols without having received approval by EPA should not be
included in permits. (Category One).
All relevant (and in some cases more) documentation should be included in fact sheets
or administrative records in order to substantiate permit decisions such as monitoring
frequency reductions, reasonable potential determinations, and choice of statistical
analyses selected (Category One).
Recommend revising the regulatory language pertaining to reasonable potential that is
set forth in state law (38 M.S.R.A. Section 414-A, Section 420 and CMR 530(2)) to
include "reasonable potential to cause" in addition to "cause or contribute" so that it is
consistent with EPA's regulations at 40 CFR Part 122.44(d)(1). (Category Two).
Recommend revising the language in future permits pertaining to reasonable potential
to include "reasonable potential to cause" in addition to "cause and contribute" so that
it is consistent with EPA's regulations at 40 CFR Part 122.44(d)(1). (Category Two).
Recommend including in fact sheets the basis for how minimal monitoring frequencies,
especially where surveillance monitoring is waived, will yield representative data that
will allow for an adequate evaluation of the toxic effects of the discharge. (Category
Three).
4. Toxics
Proposed action items to help Maine strengthen its NPDES permit program include the
following:
Recommend revising the regulatory language pertaining to reasonable potential that is
set forth in state law (38 M.S.R.A. Section 414-A, Section 420 and CMR 530(2)) to
include "reasonable potential to cause" in addition to "cause or contribute" so that it is
consistent with EPA's regulations at 40 CFR Part 122.44(d)(1). (Category Two).
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Recommend revising the language in future permits pertaining to reasonable potential
to include "reasonable potential to cause" in addition to "cause and contribute" so that
it is consistent with EPA's regulations at 40 CFR Part 122.44(d)(1). (Category Two).
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