Letter to Governor Cuomo

May 23, 2012

Honorable Andrew M. Cuomo
Governor, State of New York
The Capitol
Albany, NY 12224

Dear Governor Cuomo:

I write to request that you take immediate action to eliminate massive water quality impairments in Southern Cayuga Lake caused by excessive phosphorus and turbidity that New York State has failed to remedy for more than 50 years.

This matter warrants your urgent attention. Not only has your Department of Environmental Conservation (DEC) failed to clean up Cayuga Lake's long-standing pollution problems, it actually made them far worse by improperly granting a 1998 discharge permit to Cornell University's Lake Source Cooling facility in clear violation of the Clean Water Act.

Lake Source Cooling’s Pollution Threat to Cayuga Lake

LSC’s pollution threat to Southern Cayuga Lake was highlighted in a lengthy 1999 article in The New York Times: http://www.nytimes.com/1999/03/27/nyregion/aid-environment-threat-lake-c...

“It seems an environmentalist's dream: a system that can cool 10 million square feet of Cornell University dormitories, laboratories and computer rooms simply by pumping frigid water from the depths of a nearby lake. No more chlorofluorocarbons, the refrigerants that can destroy protective ozone in the atmosphere. An electric bill 80 percent smaller than for conventional air conditioners. To top it off, nothing goes back into the lake, except water that came from the lake in the first place.”

“But an energetic group of local opponents insists that Cornell's $55 million plan to replace its aging air conditioners is actually an environmental nightmare. They say it could foster choking blooms of algae and bacteria at the south end of Cayuga Lake (emphasis added).”

“Pointing to five years of studies, thousands of pages of data, and more than a dozen permits from local and state agencies, Cornell scientists and engineers say the system could actually improve conditions in the lake.”

As you will see from the information I am providing for your review, water quality impairments are worse than ever in Southern Cayuga Lake. The problems are so widespread and extreme that the impacts could be irreparable.

DEC’s profound failure to prevent or clean up the lake’s hazards calls into question your agency’s ability to enforce New York's environmental and public health protection laws. This does not bode well given that DEC would be in charge of regulating Marcellus Shale gas extraction activities that similarly have the potential to cause irreparable harm to New York’s essential waters.

With respect, if you cannot resolve the long-standing pollution problems of one of America's most historic bodies of water, a source of drinking water for more than 30,000 local residents and a mainstay of our local economy, the public can have no confidence in your administration’s ability to prevent shale gas hazards.

Southern Cayuga Lake Water Quality Impairments

In the early 1960s, pollution problems were so widespread in Southern Cayuga Lake that public bathing was banned in Stewart Park, where swimming had been popular for decades.

In 1998, the southern 5,000 acres of Cayuga Lake were listed in the national 303(d) impaired waterbody registry due to excessive phosphorus and turbidity. Phosphorus promotes the growth of algae and weeds. Turbidity is suspended solid material. High bacteria levels were later identified as an additional impairment.

Lake Source Cooling’s Discharge Permit Granted Improperly

Section 122.4(i) of the Clean Water Act specifically prohibits the issuance of permits to "a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards (emphasis added)."

DEC granted LSC a discharge permit even though Cornell's Environmental Impact Statement notes:

"Phosphorus added to the upper waters by the LSC system during the stratified period [June through October, not in the original] has the potential to stimulate the growth of phytoplankton. Excessive growth of phytoplankton is associated with degradation of the aquatic environment; water clarity decreases with increased algal growth and the public perceives a less desirable recreational and aesthetic resource." (See page 2.3.3-20)

"The LSC phosphorus load represents a small monthly increase (between 3 and 7 percent) to the existing TP [total phosphorus, not in the original] budget of the southern lake during the stratified period.” (See page 2.3.3-31)

"On a daily basis, the maximum TP mass load from LSC could support 3.15 kg (6.9 lb) chlorophyll a, which would represent an undetectable increase in the southern lake basin..." (See page 2.3.3-25)

In addition, the EIS notes:

"The potential decrease in water clarity in the southern lake associated with this amount of additional chlorophyll a would be minimal." (See page 2.3.3-25)

"LSC will increase SRP [soluble reactive phosphorus, not in the original] in the immediate vicinity of the outfall during the summer period when the background concentrations are currently low. ...The increase in concentration is very small, and any associated increase in algal production will have no discernable impact.” (See page 2.3.3-31)

See: http://toxicstargeting.com/sites/default/files/pdfs/LSC97-8pp_compil.pdf

Water Pollution Documented to Have Grown Worse Since LSC Began Operation

Since LSC began discharging phosphorus into Cayuga Lake, Cornell's regulatory compliance monitoring demonstrates that chlorophyll a levels increased up to more than 50% at seven out of eight of the monitoring sites.

See: http://toxicstargeting.com/sites/default/files/pdfs/LSC_120515.pdf

Chlorophyll a is a measure of algal biomass. Vast algae and aquatic weed infestations now clog the entire southern end of Cayuga Lake during summer months.

The only chlorophyll a decrease was measured at Site 2, directly downgradient of the Ithaca Area Wastewater treatment plant discharge, where a facility upgrade reduced its phosphorus discharge. Unfortunately, that improvement is extremely limited in scope.

Cornell’s most disconcerting finding was that chlorophyll a increased over large areas of the southern lake all the way to Site 8, located nearly 11 kilometers to the north. That finding supports the conclusion that the southern lake is becoming eutrophic.

As you can see from the circa 1998 photo, the algae and weed infestation spread from a relatively confined area immediately west of the Cayuga Heights sewage treatment plant approximately 800 feet south to the shoreline of Stewart Park and west across the entire lake. Many residents of that area cannot even launch their boats due to the algae and weed infestations.

See: http://toxicstargeting.com/sites/default/files/pdfs/LakeSourceCooling_12...

These problems could have been avoided if DEC had challenged Cornell’s key assertion that phosphorus discharged by LSC would migrate north, away from the most impaired area of Southern Cayuga Lake. In reality, prevailing NW winds often prevent the northerly migration of phosphorus discharged by LSC.

In addition, a 2010 Master’s degree thesis by Seth Avram Schweitzer (The effects of runoff and upwelling events on the water quality of the southern shelf of Cayuga Lake, Cornell University.) reported: "When the wind blows from the south for a duration greater than the lake's uninodal horizontal seiche period (T/4), the thermocline tilts up in the vicinity of the shelf. This leads to reduced exchange between the shelf and the main basin's epilimnion, resulting in higher nutrient levels near loading sources on the shelf."

This directly contradicts the fundamental assertion of the LSC Environmental Impact Statement that the facility's nutrient-loading contribution would migrate north “off the shelf.” In short, the threatened impact of LSC's effluent discharge on water quality was fundamentally misunderstood by DEC.

Professor Alex Horne’s Prescient LSC Analysis Not Heeded by DEC

In contrast, the documented increase in algae and weed problems was predicted almost exactly by Professor Alex Horne of the University of California at Berkeley. His scathing analysis of Cornell’s EIS concluded:

"The eutrophication potential is underestimated in the draft EIR due to the method used to estimate the percentage increase in phosphorus, the algal growth limiting nutrient in this lake. Underestimation of phosphorus automatically underestimates the amount of algae that will grow as a result of the project."

"The draft EIR states that the LSC project will increase total phosphorus (TP) in the area by an 'insignificant' 3-7%. The draft EIR omits the fact that this calculation is based on using a very large area of the lake as a dilution basin. If a more reasonable local area of the southern basin had been used based on the plume model in the draft EIR, the LSC percentage would rise by a factor of five. The other reason the draft EIR can claim that the LSC project has a small impact is that it ignores likely future reductions in TP loading [other] from other sources such as city sewage plants. If both these factors are considered, the contribution of the LSC project to the future TP budget of the area can rise to 30% and may exceed 50% in dry years (emphasis added)."

See: http://toxicstargeting.com/sites/default/files/pdfs/Horne98-1-8.pdf

BACI Findings

After years of dithering, DEC finally succumbed to intense public pressure and required Cornell to conduct a Before-After-Control-Impact study to determine if LSC had made existing water quality impairments worse in the area of Cayuga Lake with the worst algae and weed problems: Site 7.

That study demonstrated a statistically significant correlation (p-value < 0.05 at 95% confidence interval) between the operation of LSC and the increase of chlorophyll a at Site 7, the site in the most impaired area of the Southern Lake, compared with the control Site 4. See below.

[SOURCE: “A Before-After-Control-Impact Analysis for Cornell University’s Lake Source Cooling Facility.” 2008. Prepared by Upstate Freshwater Institute, Syracuse, NY. Sponsored by Cornell University.]

According to the LSC discharge permit, that statistically significant conclusion requires the facility's discharge to be treated to remove phosphorus or the discharge pipe has to be re-evaluated to determine whether it should be moved "off the shelf" to send the wastewater back into the depths of the lake below the photic zone.

DEC’s Regulatory Inaction

Despite all this documentation, DEC has done nothing to clean up Cayuga Lake's problems. It failed to require LSC’s discharge pipe to be moved or for its wastewater to be treated. It failed to propose or adopt a Total Maximum Daily Load (TMDL) comprehensive clean up plan required as a "high priority" by 2004. It even allowed LSC’s State Pollutant Discharge Elimination System permit to lapse in 2008.

Shockingly, DEC is reportedly now considering delaying regulatory action for an additional four years and allowing Cornell, the party responsible for contributing to the lake's impairments, to prepare the TMDL.

With all respect, if your administration fails to clean up Southern Cayuga Lake and safeguard the drinking water drawn from the lake and supplied to more than 30,000 local residents, it will be clear that DEC cannot fulfill its regulatory obligations and act as a steward for New York’s natural resources.

Immediate Request for Regulatory Enforcement Action

It is entirely unacceptable that this regulatory matter has dragged on for approximately 14 years without being resolved in strict compliance with all applicable law. Frankly, LSC's improper discharge has been managed in a manner that undermines public confidence in government's ability to safeguard the environment.

Against that background, I request that you require DEC to enforce LSC’s permit provision to eliminate its phosphorus impact on Cayuga Lake and to take further action to clean up the lake’s water quality impairments. A similar request has been submitted to Environmental Protection Agency Administrator (EPA), Lisa P. Jackson.

First, DEC and EPA must require Lake Source Cooling's effluent discharge of SRP to be treated using Best Available Technology or moved "off the shelf."

Second, DEC and EPA should permit an alternative solution of converting the "once-through, non-contact" cooling water discharge to a "closed-loop" system that would eliminate any transfer of SRP from the bottom of Southern Cayuga Lake to shallower areas. This would constitute an ideal resolution to the current Lake Source Cooling nutrient-loading problem.

Third, DEC and EPA must tolerate no further delay in issuing a renewal of the Lake Source Cooling discharge permit in order to implement the provisions referenced above.

Fourth, DEC and EPA must require a TMDL to be proposed and implemented within one year. Any further delay in this matter must not be tolerated.

Finally, DEC and EPA must reject any proposal that allows Cornell University to delay enforcement of its Lake Source Cooling permit or play any role in preparing a proposed TMDL. Either action would clearly pose an unacceptable conflict of interest.

Conclusion

In conclusion, Cornell University repeatedly tried to halt its in-lake water quality compliance monitoring in all likelihood to avoid documenting Lake Source Cooling's impact on Southern Cayuga Lake. It also offered to fund local groups if they supported ending that required in-lake water quality monitoring.

Cornell also repeatedly tried to avoid undertaking a BACI study involving Site 7 and later tried to skew its findings statistically to avoid documenting Lake Source Cooling's impact on Southern Cayuga Lake. Its raw data document a statistically significant impact finding.

Cornell and the groups it offered to fund long denied the existence of algae and aquatic weed infestation problems in Southern Cayuga Lake. Ironically, those entities are now among the most ardent advocates of applying toxic herbicides to control the growth of Hydrilla that was recently identified in Cayuga Inlet. Hydrilla is merely one component of a much larger algae and weed problem in Cayuga Lake.

If the nutrient loading concerns documented nearly 14 years ago in Southern Cayuga lake and its tributaries had been addressed by DEC and EPA, the Hydrilla threat could have been minimized or avoided altogether. That is why it is imperative that the Hydrilla infestation be addressed as part of the overall pollution control efforts specified herein

For all the aforementioned reasons, I request your swift action to fulfill the requests documented in this letter without further delay. I look forward to your prompt reply.

Very truly yours,

Walter Hang
215 North Cayuga Street
Ithaca, NY 14850

Cc: 	Honorable Barbara S. Lifton 
	Honorable Richard D. DePaolo
	Honorable Pamela Mackesey
	Honorable Svante Myrick
	Honorable Cynthia Brock
	Honorable Maurice D. Hinchey
	Honorable Lisa P. Jackson
	Honorable Judith A. Enck
	Honorable Joe Martens
	Honorable Robert K. Sweeney
	James Tierney
	Brian F. R. Baker
	John Filippelli
	Jeffrey Gratz
	Joseph J. Heath, Esq.
	Christopher A. Amato, Esq.
	Ralph Nader, Esq.
	David J. Skorton, M. D.