James W. Parker
Chair, Board of Environmental Protection
17 State House Station
Augusta, ME 04333-0017
Cc:

Melanie Loyzim, Acting Commissioner, Maine Department of Environmental Protection 
Mr. Jason Mitchell, President and COO, Whole Oceans, LLC 

December 17, 2018
RE:

Appeal of Maine Pollutant Discharge Elimination (MEPEDS) Permit # 0037478
and Wastewater Discharge License (WDL) # W009190-6F-A-N
(Whole Oceans, LLC - location, Bucksport Maine)

VIA:

Electronic and U.S. Mail

Mr. Parker;
I am filing this appeal of the above MEPEDS permit and WDL license documented by
Mr. Gregg Wood, Maine Division of Water Quality Management and filed on November
21, 2018, ​as issues I had raised as an Interested Person on toxic mercury, in written
form during the public commentary, were not adequately addressed. ​(see Attachment #1,
Attachment #2)

Additionally, I had raised the issue that Total Ammonia should be tested in the effluent
discharge during the winter months. ​(see Attachment #3)​ ​ There is data that supports
that Total Ammonia should be tested during the winter months, as its component
uniodized ammonia is even more toxic to the river and bay fish and shellfish during cold
temperatures. This data was reported out to the U.S. Department of Environmental
Protection. ​(see Attachment #4)
Therefore, I am submitting this appeal as an aggrieved party,​ i​n accordance with ​DEP's 
Organization and Powers​, 38 M.R.S. §§ 341-D(4) & 346; the ​Maine Administrative 
Procedure Act​, 5 M.R.S. § 11001; and the DEP's ​Rules Concerning the Processing of 
Applications and Other Administrative Matters ​("Chapter 2"), 06-096 C.M.R. ch. 2. I am 
requesting the Board review this material and support Whole Oceans and Maine DEP 
in revising the permit and license accordingly. 
 
As required, I have labeled all supplemental information as attachments to this appeal
with the date and source. I have indicated where it is new information and request it be
1

 included in the record. I am aware that electronic links are not acceptable to be
included in the record, and some of the documents are lengthy, therefore I have
provided numbered references to portions of those documents as required.
SUMMARY:
In order for the Whole Oceans project to be successful ​it is imperative that no
substantial harm by release of toxic materials into; the Penobscot River, the Penobscot
Bay and the important fishing areas of the Gulf of Maine occurs.​ This is​ a ​goal that I
believe is shared by all concerned.
The previous comments that I submitted in writing as an Interested Person during the
commentary period, were submitted to help insure Whole Oceans success. They were
submitted with the hope that a new successful business development would the benefit
of the Town of Bucksport and all those who are stakeholders. ​(see Attachment # 5)
That is still my intent. Corporations can be highly profitable and successful without
negatively impacting the very resource, in this case the waters of the Penobscot River
and Bay, that they rely on. Indeed, it is integral to their success that they do so.
In the Final Permit of Record, the Whole Oceans facility was described as utilizing
source water from the Penobscot River as well as other sources, namely Silver Lake.
The intake of these waters, in particular the waters from the Penobscot River, will be
drawn in to the facility at various times and seasons from the combination water column
consisting of river flowage and the tidal waters coming upstream.
These combined waters contains high levels of mercury, much of which is in inorganic
form. This is due to the presence of a substantial amounts of mercury contained the
tidal ebb, flow and the churn of sediments in the water column of the River. ​(see
Attachment # 6)

In the Permit of Record, Whole Oceans described it’s process of feeding and raising the
fish from smolt to adult fish and​ the daily discharge of its effluent. This discharge,
through the three phases of the Whole Oceans project will discharge from 4 million
gallons per day up to 18 million gallons per day at final build out.
​ ethylmercury is created in aquatic environments when inorganic mercury is acted
M
upon by microbes and in the presence of carbon. These microbes are contained in fish
grow-out tanks due to the process of feeding juvenile and adult fish, and those fish
generating solid and liquid waste.
2

 Methylmercury, a compound of mercury, is a highly toxic pollutant and listed​ in the
e-CFR §401.15​ pursuant to section 307(a)(1) of the Clean Water Act.
In the course of Whole Oceans feeding process, the inorganic mercury contaminated
input waters brought into the grow-out tanks, would become methalyzed and released
back into the public’s waters in the facilities effluent. To release methylmercury, a toxic
pollutant, into the public’s waters would constitute a violation of the Federal Clean
Water Act.​ (see Attachments 11 & 12)
The Permit of Record describes the facilities water intake sources, sea water and fresh
water, which would be released as a combined effluent and specifies the average
discharge temperature. Due to its brackish make up and being seasonably warmer
then the changing column of receiving waters, it could pierce or overshoot the protective
wall of cold dense salt water. This protective barrier is currently preventing 19 tons of
highly toxic mercury and methylmercury from encroaching further into the Upper and
Lower Penobscot Bay. ​(see Attachment # 6)
While any project can contain unforeseeable risks, with any new undertaking it is
important to try to minimize or eliminate the risks that can be addressed at the outset.
Filtering and sequestering the mercury from the input water, and promptly removing that
toxic material to an appropriate waste site, would address the issue of the highly toxic
methylated discharge.
Likewise, the careful testing of the impact of a high volume of warmed water, well prior
to the introduction of eggs, will allow Whole Oceans to make any adjustments to its
facilities build out and operation, fulfilling its business and product marketing goals of
“healthy fish, healthy planet, healthy people” ​(see Attachment # 13)
By adopting these simple preventative measures, through revision to the Effluent Permit
of Record , can help insure that the current and future users of the public waters will not
be harmed or disenfranchised.

3

 Aggrieved Status - Standing & New Information Discovered:
As an Interested Person on the Final Permit of Record, I have been following the
permitting process closely.
I reside along the shoreline of the Belfast Bay which is connected, by its waters, to the
Upper and Lower Penobscot Bay. I own 250 feet of shorefront, including the intertidal
portion of the property that are covered twice a day by tidal waters from the Penobscot
Bay. These waters, in addition to my family’s use, are recognized by the State of Maine
as “Habitat for Wading and Shoreline Birds” ​(see Attachment #14)
Subsequent to my submitting questions during the public review period, and the
granting of the permit on November 21, 2018, ​through a FOAA submission I became
aware of and reviewed the information contained ​in the Maine State District Court
ordered study “Penobscot River System” ​(see Attachment # 6, Attachment # 7 )
The “Penobscot River System” study is a voluminous collection of information covering
the Maine Courts and technical findings from November 2003 - September 2018. It
describes in detail the extent and character of the mercury contamination upstream and
downstream of the Whole Oceans water intake and effluent outfall pipes. In addition,
the study details the remediation planned for sites just above and just below the Whole
Oceans proposed intake/outflow.
Subsequent to reviewing the Penobscot River System” study, I sought out and read
peer reviewed scientific technical data and have identified them below.
As as a former Business Development Manager, for Intel Corporation, and having
worked 9 years at the David Sarnoff Research Center in Princeton New Jersey, I am
familiar with reading and reviewing fairly complex technical and legal documents.
Having served as a project and product manager, I am also familiar with reviewing and
analysing systems designs. My review of the Whole Oceans Final Permit and License,
was with an eye toward understanding how this facility, and its effluent, might function in
the estuarial system, impact the Bay at large and the tidal portions of my property.

4

 POTENTIAL DAMAGE:
I and my family, ​like other members of the public, swim in the waters of the
interconnected Bays. We eat the produce that comes from these waters provided by
local shell and fin fishers. We consume the produce from those who grow the mussels,
scallops and seaweeds, all of which are sold in local stores and further afield. Given that
the waters of the river and bays intermix and flow in a complex manner, in the special
case of mercury contamination the usual 1 mile limit from the effluent discharge pipe
cannot be applied. This has been upheld by the findings of the Maine Courts.
The Final Permit and License published by Mr. Wood and filed 11/21/2018, contained
the following statement:
p3 of 33
“​CONCLUSIONS”
“​(e). Where a discharge will result in lowering the existing water quality of any
waterbody, the Department has made the finding, following opportunity for public
participation, that this action is necessary to achieve important economic or
social benefits to the State.”​
The fishers and those who farm shellfish and sea vegetables would be disenfranchised
and harmed by the effect of the above Maine DEP “Conclusion, (e)” as it relates to the
waters immediately downstream of the Class SC delineation. Given that these waters
are connected to the Penobscot Bay and the Gulf of Maine, in the case of methylated
and inorganic mercury, the issues are grave and possibly irreversible.
(see Attachment #8)

Likewise disenfranchised and harmed would be any future aquaculturists who wish to
rely on intake of these waters.
The Maine State District Court has ordered remediation of the mercury contamination
above and directly below the intake and outfall pipe of the proposed Whole Oceans
facility. This remediation is a result of “Maine People's Alliance and Natural Resources
Defense Council, Inc. vs. HoltraChem Manufacturing Company, and Mallinckrodt Inc.
Case 1:00-cv-00069-JAW”. ​(see Attachment # 6)

5

 Judge Woodcocks findings, published on 09/02/15 in Document 829
1:00-cv-00069-JAW, summarizes well the nature of the issue, in terms which are clear
and have been upheld throughout various appeals:
“.... the presence of a large pool of [mercury] contaminated mobile sediments (estimated
at 320,000 tonnes) that has been trapped in the upper estuary” through “hydrodynamic
processes”. Id. at ES-7. “
“Plaintiffs point out that the level of mercury in species such as lobsters, rock crabs,
black ducks, and eels exceeds the safety standards established by the state of Maine,
as well as the EPA reference dose established by the federal government. “
“In general, there are two types of mercury: inorganic and organic. “
“The type of organic mercury that most concerns the scientists is methylmercury,..”
“There is a process by which inorganic mercury becomes organic or methylmercury
called methylation. Id. 32:10-24. Once released into the environment, inorganic mercury
is ingested by bacteria and through their biochemical activity, a methyl group is
attached. Id. As a result, what was inorganic mercury is released into the environment
as methylmercury. Id. 31:8-13.
Methylmercury is in orders of magnitude more toxic than inorganic mercury. Id.
31:14-17. Scientists have recognized that there is a significant human health risk with
methylmercury. The impact is most acute in the fetuses of exposed pregnant women.
Children born to women who had high mercury levels during pregnancy tend to
experience a neurological developmental lag when compared with children born to
women without elevated levels. Once the mercury-exposed child reaches school age,
they have been documented to have slower motor speed, a poor concentration span,
delays in language acquisition, and impaired cognitive function.”
“Methylmercury exposure is exacerbated by four phenomena: bioaccumulation,
biomagnification, mobility, and non-degradability.
Bioaccumulation means that if a species [​ ingests]​ another species with mercury, the
predator assimilates the mercury into its body and the mercury becomes attached to its
tissues. Rudd 32:2-9.
6

 Biomagnification refers to the principle that as mercury travels up the food chain, the
higher up the food chain, the more concentrated the levels of methylmercury. Id.
31:14-32-4. Thus, predator concentrations are many orders higher than concentrations
at the bacterial levels. Id. 31:23-32:1.
Furthermore, although over time some mercury and methylmercury becomes buried in
sediment, it remains possible for mercury in either form to become mobile with the
stirring of the water Case 1:00-cv-00069-JAW Document 829 Filed 09/02/15 Page 41 of
61 PageID #: 12797 42 currents, become deposited, and then to become re-suspended
with further agitation. Id. 142:3-14.
Finally, unlike many other elements, methylmercury does not break down over time.
Fisher 692:19-20 (“[Mercury] doesn’t break down the way an organic compound breaks
down.”). The most common source for methylmercury exposure to humans comes from
eating fish and shellfish. HoltraChem, 211 F. Supp. 2d 245.
When a person eats fish or shellfish, which have a high methylmercury concentration
level, the mercury is nearly completely absorbed through the digestive process.
Grandjean 794:19-25. The mercury is taken up into blood, circulated throughout the
body, including penetrating the brain, and only a small amount is excreted. Id.
Once ingested, methylmercury stays in the body for several months. Id. 795:13-19. In a
month and a half or forty five days, humans lose about fifty percent of mercury levels
that existed directly after ingestion.”
“d. A Mobile Pool of Sediment - One of the puzzles about the mercury contamination of
the Penobscot River has been why the River has not entirely flushed the mercury into
the ocean.”
“Dr. Wayne R. “Rocky” Geyer presented a convincing explanation for the comparatively
slow recovery of the Penobscot River estuary. 6 Tr. of Proceedings 1143:16-1163:25
(ECF No. 765) (June 10, 2014); 7 Tr. of Proceedings 1169:11-1272:4 (ECF 767) (June
11, 2014) (Dr. Geyer) (Geyer).
The Court finds Dr. Geyer’s testimony persuasive and adopts his expert opinions. Dr.
Geyer is an expert in the circulation and sediment transport processes in estuaries and
the coastal ocean. Geyer 1144:7- 12. He holds a Ph.D. in physical oceanography and
works at the Woods Hole Oceanographic Institution. Id. 1146:11-15; 1143:18-21.
7

 Once mercury is released into a river, it hitches a ride on minute pieces of sediment as
it travels downstream. Id. 1149:3-14 (“[T]he mercury is mostly bound to the sediment, so
that the -- the transport of mercury is mostly associated with the transport of the
sediment.”). Some of the sediment is deposited on the river bed and over time is
layered over with ensuing generations of less toxic sediment.
Dr. Geyer Case 1:00-cv-00069-JAW Document 829 Filed 09/02/15 Page 44 of 61
PageID #: 12800 45 focused on what happens to the sediment as it nears Penobscot
Bay, and it turns out the sediment is subject to tidal forces and a salt barrier that affects
the movement of sediment into the Bay. “
“Due to the “continuing risk to biota and human consumers,” the Phase II Report
“recommends the establishment of a Remediation Program” that would Case
1:00-cv-00069-JAW Document 829 Filed 09/02/15 Page 9 of 61 PageID #: 12765 10
“involve[] three types of active remediation procedures.” Id.
These include some targeted removal of “contaminated mobile sediments” and
“replacement with clean sediments,” as well as dispersal of a mercury “binding agent” in
Mendall Marsh to lower total mercury concentrations and retard the production of
methylmercury. Id.”
In regard to methylmercury contamination, the key issues defined by Courts and
scientists in the “Penobscot River Study” as they relate to the Whole Oceans permit
and license, are as follows:
“mobility​”​ - The intake waters that Whole Oceans will bring into its facility
contain “sticky” inorganic mercury carried by the fine sediments in the floating
mercury pool. These sediments which are stirred by both the natural forces in the
tidal river environment as well as the the stirring of sediments during the
backwashing of Whole Oceans intake screens, as well as the stirring from
the output the effluent pipes on the river bottom sediments.
As stated in the Permit of Record, 4.65 million gallons of water per day will be
discharged in Phase 1, 18.6 million gallons per day in Phase 3. All of these
discharges occur under pressure. All of which can disturb additional inorganic
and organic mercury that is currently trapped in the sediment of the river.

8

 ​ ​“bioaccumulation”​ - W
​ hen this “sticky” mercury is drawn into the tanks with
the intake water it will mix with and attach to the feed pellets.
This feed is ingested, metabolized, methylated and excreted in their feces.
Some of the methylmercury will enter the fish kidneys, be concentrated and
expressed in vaporous and aqueous form in their urine through their gills.
Some of the uneaten feed will drop to the bottom of the tanks where it will
interact with the microbe and carbon rich bio- waste produced by the fish.
The aqueous and fine particle remnants of methylmercury in the feces and urine ,
will be discharged into the river and bay via the effluent. It will not be removed by
the denitrification process and heavy sludge settling, or any typical waste
disposal treatment prior to discharge.
While the Permit of Record shows UV-C treatment being utilized, by Whole
Oceans, peer reviewed technical literature show the great variability and
uncertainty of UV-C treatment for methylated mercury in waters that contain salt.
I could find no studies or literature where any claims were made of UV-C
effectiveness on any waters containing inorganic mercury.

“biomagnification”​ - ​ The waste discharged from the Whole Oceans facility will
then be further interacted upon by other microorganisms contained in the
receiving waters and consumed by plankton.
According to the DEP “Mercury (particularly methylmercury) clearly accumulates
in coastal marine food webs. Two general food webs can be conceptualized: a
benthic sediment community which includes macroinvertebrates; and a
community that resides primarily in the water column, which includes
phytoplankton and zooplankton as well as planktivorous and piscivorous fishes”
Filter-feeders, such as mussels and oysters, sea plants, and worms consume the
methylmercury from micro-organisms and plankton.
Smaller and juvenile fish who feed on the planktons consume this
methylmercury. Water borne insects and invertebrates who feed on the above
will also be ingesting this methylmercury as will the sea plants and marsh plants
who use the nutrient rich waters for their sustenance.
9

 The carnivorous fish will consume this methylmercury by eating smaller fish.
Scavengers such as lobsters will consume methylmercury directly by eating the
remains of all dead creatures.
Crabs, clams, mussels and sea urchins will also consume the methylmercury
when they eat algae and other plant forms and insects, along with decomposing
matter such as dead fish, mussels, sponges and barnacles
Wading and shoreline birds such as ducks, loons, bald eagles, terns, sandpipers
and herons consume methylmercury when they eat the insects, worms, estuarial
plants, sea plants and small fish contained in the water, mud and sediments of
tidal areas that utilize . All of the above have been seen foraging and hunting in
the intertidal areas of my property and those properties adjacent to mine.
Humans consume fish, shellfish, sea vegetables and fowl harvested from this
food chain which, as a result of biomagnification, contain higher and higher levels
of methylmercury. Human consumers won’t be able to see, or taste or smell the
presence of methylmercury.
“​Non-degradability​” - ​Inorganic mercury does not break down in the natural
environment. Unless physically removed it can persist for 100’s of years.
Which is why it must be captured, sequestered and physically removed from
Whole Oceans input waters.
Methylmercury can travel, via tides, to the edges of the SC waters, and into the
upper and lower Penobscot Bay, and that travel is dependent based on
the seasonal changes in the water column.
As the methylmercury effluent, formed by the process of feeding and raising fish
from egg to 10lb salmon for two years, is being discharged daily at a rate of 4-18
million gallons per day, 365 days a year, during summer and winter. As per
the Permit of Record, the effluent is only to be tested in the summer months.
Therefore, revision of the permit is needed.
In the “PHASE III ENGINEERING STUDY REPORT Penobscot River Estuary,
published September 2018” by Amec Foster Wheeler Environment & Infrastructure,
Inc., the engineering firm hired to address remediation, issues related to Whole Oceans
facility are also raised.
10

 The Amec Foster Wheeler report stated:
“​ Although the Estuary has recovered significantly since the period of peak mercury
discharge, the Phase II Study estimated it will take well over 100 years for mercury
concentrations in Estuary sediment to decrease to a level consistent with regional
background concentrations in sediment at the predicted rate of system recovery
(PRMSP 2013).
The Penobscot River Mercury Study Panel concluded that the slow rate of decline of
mercury concentrations in the Estuary is attributable, in part, to the presence of a large
pool of mercury-affected mobile sediment retained in the Estuary and its associated
recycling within the Estuary under the influence of the tide. “ (see Attachment # 9)
As per the Permit of Record, The Maine State DEP has chosen not to test or model the
flowage of effluent until after construction of the facility, and once it is up operational
and producing adult fish , which is approximately 2 years after commencement of
operation. I submit by that time, testing for flowage will be too late, as for two years
they will already have been pumping effluent into the River.
In the matter of testing for Total Ammonia during the winter months, the testing and
calculations needed are simple. To extend Whole Oceans testing regime for Total
Ammonia to the winter months is easy to do, and highly critical as unionized ammonia
is a highly toxic component of the facilities effluent stream.
As noted in my written comments submitted during the application period, ammonia in
general is highly toxic to the rivers fish. I had referenced a study from The University of
Illinois, Urbana that raised the issue of ammonia being even more toxic in cold/winter
waters. I am now including the abstract of that study here. ​(Attachment # 4)

11

 The Remedy Sought:
1. For the Board to make a revision to the Permit and License, in order to bring
Whole Oceans effluent into compliance with the Federal Clean Water Act.
a. For Whole Oceans to filter, sequester and remove all mercury carried in
the input water prior to its entry into the grow-out tanks to prevent it from
being methylated in those tanks and discharge with its effluent. To then
remove the filter media to a toxic waste disposal site.
b. That Whole Oceans include the testing of the output of this filter as part of
their normal daily operating, testing and reporting regime. And to do so in
accordance with the EPA-823-R-10-001 Guidance for Implementing
Methylmercury Water Quality Criterion published July 2010.
c. That Whole Oceans conduct two flowage tests as soon as the facility is
able to produce the pressurized water discharge at the anticipated rate of
at the 2 year grow-out period and ​prior to commencing any daily
operation.
That these tests include :
i.

The dye study to test for transportation and dispersal of effluent
waters and report its findings to DEP, already planned for but at a
later date

ii.

A second test, separate from dye occluded water, to test for the
pressurized disturbance of river bottom sediment directly at the
outfall pipe and report its findings to DEP

d. That Whole Oceans conducts the testing of its effluent for Total Ammonia
during the winter months, calculate the amount of unionized ammonia or
simply test for Total Ammonia provide the data to DEP in order for DEP to
do the unionized ammonia calculations

12

 To date, Maine DEP has exempted fish hatcheries from discharging mercury into the
public's waters, where the grow-out time is limited from egg to smolt, through the
Interim Effluent Limitations and Controls for the Discharge of Mercury​ 06-096 CMR 519.
However, Whole Oceans Effluent and Discharge permit is for a new use, as their facility
involves growing out 10 pound fish to maturity for a period of approximately a two years.
To apply an exemption that has been used for a very limited time for much smaller
amounts of feed, would seem unwise and unnecessarily risky when the quality of the
intake water into the facility can be addressed through a revision.
If the current permit and license are not revised, how will these toxic mercury-related
issues and un-ionized ammonia issues be addressed?
Any corporation undertaking a large development project must deal with issues raised
during the planning and development stages. Therefore, it behoves the executive
management of Whole Oceans, LLC to address this issue now. Likewise, it is up to the
Chair and Members of BEP to help the people of Bucksport, and the Corporation who
seeks to conduct business there, to address this issue promptly.
I urge the Board Chair and the Board Members to act decisively in order to help Whole
Oceans,the community of Bucksport, and all those who utilize the River and Bay’s
waters. To insure that the waters of the Penobscot River, Bay and Gulf of Maine are
secured for the endangered aquatic species who migrate through it, for the Indian
Nations whose traditional livelihood depends on it, and for all current and future users of
its estuarial and tidal waters in Penobscot Bay and the Gulf of Maine.
In the matter of this appeal, I will act as the​ designated contact person to whom all
orders, notices and correspondence regarding the appeal should be sent. I request that
those be sent via email if possible, with a followup to the Post Office Box listed below.

13

 Respectfully,

Holly Faubel
P.O. Box 216
1 Steamship Point
Belfast, ME 04915
hollyfaubel@gmail.com
480 250-665

14

 REFERENCES AND NEW DATA ATTACHMENTS:
Attachment #1​ :​ from Holly Faubel’s written comments to the Whole Oceans permit
application for Maine Pollution Discharge Elimination Permit, and Maine Waste Discharge
License , dated 10/28/2018, page 1
“TO: Gregg Wood
FROM: Holly Faubel
10/28/2018
RE: Whole Oceans, LLC Pollution Discharge Elimination and Maine Waste Discharge Permit
In accordance with ​Application Processing Procedures for Waste Discharge Licenses,​ 06-096
CMR, 522, I am submitting these comments on the revision of the draft permit amended on
Sept. 10th 2018 before close of comment period, end of day Oct. 29, 2019, for inclusion in Item
10 of DEP’s 9/28/18 Proposed Draft Fact Sheet, ME0037478, W00910-6F-A-N. ​(1)
I was in receipt of this Amended permit after two requests and it was delivered on 10/26/2018.
Like many members of the public, I was under the impression, that Whole Oceans would be
discharging their effluent into a greenhouse facility as per their publicly posted website
materials, rather than into Penobscot Bay. “

Attachment #2:​ ​ from Holly Faubel’s written comments to the Whole Oceans permit

application for Maine Pollution Discharge Elimination Permit, and Maine Waste Discharge
License , dated 10/28/2018, page 3
“The presence of mercury in all of Maine’s waters is well documented. Yet the design of Whole
Oceans proposed facility does not take mercury mitigation into consideration. Indeed, the
location of the intake pipe sandwiched between the two outflow pipes of Whole Oceans
proposed facility would seem to be problematic. The mercury that is present in Maine’s surface
waters combined with the remnants of the residual mercury in the bed of the previous industrial
paper factory, would seem to serve as a concentration source point. “
According to the DEP “To date the waters of Maine, due to mercury pollution are only approved
for hatcheries”.(​ 1)
DEP has stated (1) “​The permittee discharges into estuarine waters of the Penobscot River
which is strongly influenced by fresh water during high spring flows, large rainfall events, and
during ebb tides. These condition make it difficult to accurately define the mixing characteristics
of the permittees facility at any given point in time”​ . “​Given the uncertainty of river flows to the
east and west of Verona Island this permittee is to conduct a dye study once Phase 1
15

 operations have commenced and steady state conditions with eggs, fry and smolts and adult
fish in grow out tanks have been achieved.”​ The process of going from eggs to adult is going to
take two years at a minimum. In the meantime, what assurances and bond does Whole Oceans
give to the public local residents, recreational users, shellfish gatherers and growers, and sea
vegetable farmers that their waters are not going to be polluted due to a lack of testing.”

Attachment # 3:​ ​from Holly Faubel’s written comments to the Whole Oceans permit

application for Maine Pollution Discharge Elimination Permit, and Maine Waste Discharge
License , dated 10/28/2018, page 3
“While warm weather testing might suffice for nitrogen levels, ammonia by DEPs own
statements, is one of the most toxic pollutants in terms of the fish and shellfish health in the
receiving waters. There are scientific reports (University of Illinois, Urbana) that show ammonia,
the most toxic pollutant, is more hazardous to fish at colder temperatures.”

Attachment # 4:​ from Final Report to U.S. Environmental Protection Agency Region V,
Chicago, Illinois Walter Redmon, Project Officer, Effects of Cold Temperature on Toxicity of
Ammonia to Rainbow Trout, Bluegills, and Fathead Minnows Contract Report 68-01-5832/B
Center for Aquatic Ecology Keturah A. Reinbold and Stephen M. PescitelliOctober 1982,
reprinted January 1990, Center for Aquatic Ecology Illinois Natural History Survey 607 E.
Peabody Dr. Champaign, IL 61820 .
“ABSTRACT - The acute toxicity of un-ionized ammonia to rainbow trout (Salmo gairdneri),
bluegill (Lepomis macrochirus), and fathead minnow (Pimephales promelas) was determined
under flow-through conditions at low temperatures (3-5 0 C) typical of winter conditions and at
higher temperatures typical of summer conditions for each species. The purpose was to
determine whether ammonia toxicity differs under different seasonal temperature conditions.
The 96-h LC50 values from replicate tests with rainbow trout averaged 0.47 mg/L un-ionized
ammonia nitrogen (NH3-N) at 3-5 0C and 0.76 mg/L NH3 -N at 13-150C. For bluegill, LC50
values averaged 0.32 and 1.35 mg/L NH3-N at 4-50C and 24-250 C, respectively, while at the
same temperature ranges LC50 values for fathead minnow were 0.60 and 1.17 mg/L NH3 -N,
respectively. Thus, across the temperature span experienced from summer to winter for each
species, bluegill appeared to be the most sensitive of the three species to the effect of low
temperature on ammonia toxicity.”

16

 Attachment # 5: ​from Holly Faubel’s written comments to the Whole Oceans permit

application for Maine Pollution Discharge Elimination Permit, and Maine Waste Discharge
License , dated 10/28/2018, page 5
“The purpose of Public Comments and Answers is to give the public at large input into the
application process, and hopefully more than rudimentary responses. As such, the above
Comments and Request for Response are being submitted in order to address public concerns
in a manner that will elicit specific data that will address these important issues. The intent is
that by doing so the public's concerns can be addressed, the public and DEP will have more
substantive quantitative data to evaluate, and in the long run Whole Oceans operations will be
the better for it.”

Attachment # 6:​ Maine People's Alliance and Natural Resources Defense Council, Inc. vs.
HoltraChem Manufacturing Company, and Mallinckrodt Inc. Case 1:00-cv-00069-JAW”.
Document 829 published 09/02/15. Pages indicated below:
Page 9
“.... the presence of a large pool of [mercury] contaminated mobile sediments (estimated at
320,000 tonnes) that has been trapped in the upper estuary” through “hydrodynamic
processes”. Id. at ES-7. “
Page 12
“Plaintiffs point out that the level of mercury in species such as lobsters, rock crabs, black
ducks, and eels exceeds the safety standards established by the state of Maine, as well as the
EPA reference dose established by the federal government. “
Page 40
“In general, there are two types of mercury: inorganic and organic. “
Page 40
“The type of organic mercury that most concerns the scientists is methylmercury,..”
Page 40
“There is a process by which inorganic mercury becomes organic or methylmercury called
methylation. Id. 32:10-24. Once released into the environment, inorganic mercury is ingested by
bacteria and through their biochemical activity, a methyl group is attached. Id. As a result, what
was inorganic mercury is released into the environment as methylmercury. Id. 31:8-13.

17

 Page 40
Methylmercury is in orders of magnitude more toxic than inorganic mercury. Id. 31:14-17.
Scientists have recognized that there is a significant human health risk with methylmercury. The
impact is most acute in the fetuses of exposed pregnant women.
Page 40
Children born to women who had high mercury levels during pregnancy tend to experience a
neurological developmental lag when compared with children born to women without elevated
levels. Once the mercury-exposed child reaches school age, they have been documented to
have slower motor speed, a poor concentration span, delays in language acquisition, and
impaired cognitive function.”
Page 41
“Methylmercury exposure is exacerbated by four phenomena: bioaccumulation,
biomagnification, mobility, and non-degradability.
Page 41
Bioaccumulation means that if a species ​[ingests]​ another species with mercury, the predator
assimilates the mercury into its body and the mercury becomes attached to its tissues. Rudd
32:2-9.
Page 41
Biomagnification refers to the principle that as mercury travels up the food chain, the higher up
the food chain, the more concentrated the levels of methylmercury. Id. 31:14-32-4. Thus,
predator concentrations are many orders higher than concentrations at the bacterial levels. Id.
31:23-32:1.
Page 41
Furthermore, although over time some mercury and methylmercury becomes buried in
sediment, it remains possible for mercury in either form to become mobile with the stirring of the
water Case 1:00-cv-00069-JAW Document 829 Filed 09/02/15 Page 41 of 61 PageID #: 12797
42 currents, become deposited, and then to become re-suspended with further agitation. Id.
142:3-14.
Page 42
Finally, unlike many other elements, methylmercury does not break down over time. Fisher
692:19-20 (“[Mercury] doesn’t break down the way an organic compound breaks down.”). The
most common source for methylmercury exposure to humans comes from eating fish and
shellfish. HoltraChem, 211 F. Supp. 2d 245.

18

 Page 42
When a person eats fish or shellfish, which have a high methylmercury concentration level, the
mercury is nearly completely absorbed through the digestive process. Grandjean 794:19-25.
The mercury is taken up into blood, circulated throughout the body, including penetrating the
brain, and only a small amount is excreted. Id.
Page 42
Once ingested, methylmercury stays in the body for several months. Id. 795:13-19. In a month
and a half or forty five days, humans lose about fifty percent of mercury levels that existed
directly after ingestion.”
Page 44
“d. A Mobile Pool of Sediment - One of the puzzles about the mercury contamination of the
Penobscot River has been why the River has not entirely flushed the mercury into the ocean.”
Page 44
“Dr. Wayne R. “Rocky” Geyer presented a convincing explanation for the comparatively slow
recovery of the Penobscot River estuary. 6 Tr. of Proceedings 1143:16-1163:25 (ECF No. 765)
(June 10, 2014); 7 Tr. of Proceedings 1169:11-1272:4 (ECF 767) (June 11, 2014) (Dr. Geyer)
(Geyer).
Page 44
The Court finds Dr. Geyer’s testimony persuasive and adopts his expert opinions. Dr. Geyer is
an expert in the circulation and sediment transport processes in estuaries and the coastal
ocean. Geyer 1144:7- 12. He holds a Ph.D. in physical oceanography and works at the Woods
Hole Oceanographic Institution. Id. 1146:11-15; 1143:18-21.
Page 44
Once mercury is released into a river, it hitches a ride on minute pieces of sediment as it travels
downstream. Id. 1149:3-14 (“[T]he mercury is mostly bound to the sediment, so that the -- the
transport of mercury is mostly associated with the transport of the sediment.”). Some of the
sediment is deposited on the river bed and over time is layered over with ensuing generations of
less toxic sediment.
Page 44-45
Dr. Geyer focused on what happens to the sediment as it nears Penobscot Bay, and it turns out
the sediment is subject to tidal forces and a salt barrier that affects the movement of sediment
into the Bay. “

19

 Page 9
“Due to the “continuing risk to biota and human consumers,” the Phase II Report “recommends
the establishment of a Remediation Program” that would Case 1:00-cv-00069-JAW Document
829 Filed 09/02/15 Page 9 of 61 PageID #: 12765 10 “involve[] three types of active remediation
procedures.” Id.
Page 10
These include some targeted removal of “contaminated mobile sediments” and “replacement
with clean sediments,” as well as dispersal of a mercury “binding agent” in Mendall Marsh to
lower total mercury concentrations and retard the production of methylmercury. Id.”

Attachment # 7​: ​from email regarding FOAA request to Department of Marine Resources,
November 13, 2018

“ From:​ "Mendelson, Meredith" <​Meredith.Mendelson@maine.gov​>
Date:​ November 13, 2018 at 8:49:15 AM EST
To:​ "​andrewsteve@icloud.com​" <​andrewsteve@icloud.com​>
Subject:​ ​RE: FOAA request to DMR
Hello Mr. Stevenson,
I am sorry for the delay in fulfilling your request. We have some data that needed to be
excluded due to federal and state confidentiality provisions for landing statistics, so I had to
ask staff to re-run some of the queries that had already been completed. I’m hopeful I will be
able to get it to you within a couple of days.
In the meantime, the website I referenced regarding the Penobscot Bay Mercury Study data
and reports is here:
http://www.penobscotmercurystudy.com/

Thanks,
Meredith “

20

 Attachment 8: Maine Department of Marine Resources sampled 2014

Latitude

Maine DMR Sample Locations

Sampled after Ull?li?2014 and located between latitudes 44.2 to 44.45

and longitudea 69 to ?8.85 (shown by the red box).

 

 

439.1 439.0 438.9

Longitude

21

Castine



0 0

Project Name

LobsterSea Sampling
Scallop Sun'eyF'roject
Shoreline Survey GPS
Urchin Survey Project

Water Quality Ocean - Review

Attachment #9:​ ​PHASE III ENGINEERING STUDY REPORT Penobscot River Estuary,

Maine Prepared for: United States District Court District of Maine Prepared by: Amec Foster
Wheeler Environment & Infrastructure, Inc. 511 Congress Street Portland, Maine 04101 Project
No. 3616166052 September 2018 Executive Summary.
Page 9
“​Although the Estuary has recovered significantly since the period of peak mercury discharge,
the Phase II Study estimated it will take well over 100 years for mercury concentrations in
Estuary sediment to decrease to a level consistent with regional background concentrations in
sediment at the predicted rate of system recovery (PRMSP 2013).”
Page 4
“The Penobscot River Mercury Study Panel concluded that the slow rate of decline of mercury
concentrations in the Estuary is attributable, in part, to the presence of a large pool of
mercury-affected mobile sediment retained in the Estuary and its associated recycling within the
Estuary under the influence of the tide. “

22

 ATTACHMENT # 10:
Page 2 of Holly Faubel’s Public Comments re: Whole Oceans permit application
submitted 10/28/2018
“As per DEP’s statement on Page 3 ​(1) ​“Where high quality waters of the State are an
outstanding resource, that water quality will be maintained and protected”.
The receiving waters immediately at the outfalls indicated are listed as SC Waters, Maine
Department of Marine Resources Pollution Area 35 as shown in the photo below:
These waters are
designated as Critical
Salmon Habitat (as per
DEP’s Penobscot
Rivershed, with
Licensed Dischargers
and Critical Salmon
habitat overlay) for the
endangered Wild
Atlantic Salmon whose
numbers are just
beginning to recover. It
is also habitat and
migratory path
Endangered Atlantic
and Short Nosed
Sturgeon.
The orange arrows in
the diagram (left)
indicate those areas
just below the
proposed measured
outflow that could be
further restricted due to
the discharge of Whole
Oceans operation.
This discharge won’t
even be measured for
the first two years of
operation. “

23

 Attachment # 11​ ​Electronic Code of Federal Regulations 
e-CFR data is current as of December 13, 2018, page 1  

“ 45. Mercury and compounds”

Attachment # 12:​ Clean Water Act , Section 502, General Definitions, 1972, page 1,
item 13
 
“ (13) The term "toxic pollutant" means those pollutants, or combinations of pollutants, including 
disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation 
into any organism, either directly from the environment or indirectly by ingestion through food chains, 
will, on the basis of information available to the Administrator, cause death, disease, behavioral 
abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in 
reproduction) or physical deformations, in such organisms or their offspring.” 

24

 Whole Oceans public website, page# not available 12/17/2018

Attachment 13

WHOLE OCEANS

ABOUT ECONOMIC 

RAS it; it technique for mining tish in a Closed, indoor,

land?inland Water in continuously recichlated

through a 11m lieution system. which conserves Water and

eliminatea the need for antibiotics.

Healthy ?sh.
Healthy planet.
Healthy people.

013R SALMON

TEAM PARTNERS

I 

NEWS

CONTACT

El

 

25

Attachment 14 - US. Fish Wildlife Service, Gulf of Maine, real-time12/13/2018

 

 

December 13. 2018
- ETSC Animal Habitat Buffers - Tidal Wading Bird and Waterfowl Habitat

Sheli?sh Beds

 

 

 

1 :18,056
0.17 0.35 7 km




26

Attachment 15 - PHASE ENGINEERING STUDY REPORT, AmeC Foster Wheeler

Phase Engineering Study

 

 

Dredging in the Orrington
Intertidal East and Orrington
Marsh East areas

 

 

 

A5

  
    
    
  
  

Study Area

winterport 

 

Mendaii Marsh
thin layer capping

 

 

 

Odom Ledge

Stockton Springs I
Fort Point Coir/e 

Searsport 



a 
?ng 

Se . 
1st: d/ .








 



. . {Turner 
Peno _'b's'cot Bay 





.

  
  
 
   
  

Former
Veazie
Dam

$4

Former HoltraChem Facility
outhern Cove

 

Dredging to remove
mercury contaminated
su btidal deposits

 

 

 

oPeno 







"af?ne



7)

. .

 

27