Request That EPA Require a TMDL for Cayuga Lake that Eliminates Lake Source Cooling's Improperly Authorized Untreated Phosphorus Discharge and Serves as a National Model of Effective Watershed Clean Up

Honorable Peter D. Lopez
Region 2 Administrator
U. S. Environmental Protection Agency
290 Broadway
New York, NY 10007-1866

Greetings:

I write respectfully to request that you take immediate, urgent action to make sure that the U.S. Environmental Protection Agency (EPA) requires a Total Maximum Daily Load (TMDL) to be adopted for Cayuga Lake that strictly fulfills all applicable requirements pursuant to Section 303(d) of the U.S. Clean Water Act in order to remediate documented water quality impairments that have threatened public health and the environment for more than 50 years.

An essential requirement of any TMDL adopted for Cayuga Lake is that it must eliminate the untreated effluent discharge of Cornell University's Lake Source Cooling's once-through, non-contact cooling water that releases Soluble Reactive Phosphorus into the southeastern corner of Cayuga Lake. This area of the lake is highly impaired by massive algal and weed infestations caused by excessive phosphorus.

The TMDL also must require the prompt clean up of all nutrient and other pollution sources in Cayuga Lake's watershed. A Phase I Environmental Site Assessment must be conducted of that entire drainage basin in order to identify, investigate and set priorities for remediation of all documented contamination problems.

In 1998, the southern 5,000 acres of Cayuga Lake were included in the National 303(d) Registry of Impaired Water (Clean Water Act, 33 U. S. C. §1313) due to long-standing nutrient and turbidity problems. A TMDL was required as a "high priority" in 2004. After decades of inaction, no TMDL has yet been adopted.

A draft TMDL, however, has recently been discussed with local officials and received criticism because it is a "pie-in-the-sky" "wish list" "hodge-podge" that involves "endless study", self-serving modeling that allows responsible parties to avoid clean up obligations and ineffective voluntary Best Management Practices that are the genesis of Cayuga Lake's pollution impairments.

Given these profound shortcomings, the described TMDL utterly fails to provide a meaningful plan to end water quality impairments in Cayuga Lake. The proposal also reportedly lacks sufficient sustained funding for implementing the TMDL.

I urge you to reject any TMDL with these fatal flaws in favor of a comprehensive plan of action that has gained statewide support among more than 1,400 signatories to a: Coalition Letter Which Requests That Governor Cuomo Take Urgent Action to Eliminate Water Quality Impairments That Cause Cyanobacteria Harmful Algal Blooms Across New York State

Against that background, I write today to rationalize my request for your direct intervention in this important matter.

Lake Source Cooling's Improperly Granted Discharge Permit

In 1999, I documented that the New York State Department of Environmental Conservation (DEC) improperly granted a State Pollutant Discharge Elimination System Permit for Lake Source Cooling's untreated effluent release of once-through, non-contact cooling water containing Soluble Reactive Phosphorus. This SPDES permit was granted pursuant to authority that EPA delegated to DEC.

However, your agency's TMDL regulations regarding Section 303(d) prohibit 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."

Cornell's Lake Source Cooling permitted discharge specifically contravenes 40 C.F.R §122.4(i) because its effluent discharge contributes Soluble Reactive Phosphorus to an area of Cayuga Lake which has exceeded applicable nutrient and turbidity narrative water quality standards and guidance values for decades.

This concern was clearly communicated to DEC and EPA in a detailed: NRDC Cornell Lake Source Cooling Permit Letter

Algal pollution problems also were highlighted in an article in The New York Times that garnered national attention: Aid to Environment, Or Threat to Lake?; Cornell Pursues Pumping Plan, But Critics Fear Fouled Water

To EPA Region 2's enormous credit, it quickly proposed a landmark 1999 agreement to address Cornell's contribution to Southern Cayuga Lake's water quality impairments, but the plan was never implemented due to opposition by DEC and Cornell. As stated in EPA's initial draft proposal, the proposed policy would have set a precedent that could have been replicated on a national basis.

See: U. S. EPA's 7/99 Landmark Lake Source Cooling/Cayuga Lake Clean Up Proposal

Water Pollution Is Documented to Have Grown Worse in Cayuga Lake Since Lake Source Cooling Began Operation

Since Lake Source Cooling began discharging approximately six percent of the phosphorus that enters Southern Cayuga Lake, Cornell's regulatory compliance monitoring data document that a key measure of algal biomass called chlorophyll a has increased up to more than 50% over an area of approximately 6,000 acres in the impaired section of the lake.

Cornell’s own 2008 Before-After-Control-Impact study documented a statistically significant correlation between the operation of Lake Source Cooling and an increase of chlorophyll a at Site 7, the site in the most impaired area of the Southern Lake, compared with the control Site 4.

Based on this determination, EPA must either require the Lake Source Cooling discharge to be moved off of the shallow “shelf” of Southern Cayuga Lake and returned to deep water below the photic zone, converted into a closed loop system or treated to remove phosphorus.

Massive algae and weed infestations in Cayuga Lake have intensified in the decades since Lake Source Cooling began operation. In particular, the facility's phosphorus loading reaches a maximum level during the warm weather months when cyanobacteria that cause Harmful Algal Blooms (HABs) are most prevalent in Cayuga Lake. Beginning in 2017, unprecedented HABs engulfed the area adjoining the Lake Source Cooling discharge.

See: Photos of Cyanobacteria Algae Pollution Concerns 7/30/2017 West side of Cayuga Lake, Ithaca, NY

HABs in Cayuga Lake have recently gotten worse. In 2019, a total of 99 HABs was reported in Cayuga Lake between 7/13/19 and 9/24/19. Many of those HABs were reported as "confirmed with high toxins" or characterized as "widespread or lakewide." These HABs threatened more than 40,000 local residents who drink water drawn from Cayuga Lake.

You Have a Duty to Enforce the U.S. Clean Water Act

Consumer Advocate Ralph Nader and I met personally with former EPA Administrator Lisa Jackson to request that EPA require Cayuga Lake to be cleaned up, but to no avail. I also met personally with former DEC Commissioner Alexander Grannis about this matter, also to no avail. For 20 years, I, tribal leaders of the Cayuga Nation and others have discussed Cayuga Lake with multiple Region 2 EPA Administrators and staff as well as DEC Commissioners and staff. None of these efforts has resolved this historic Finger Lake's severe water pollution hazards.

Consumer Advocate Ralph Nader and Walter Hang Meet With EPA Administrator Lisa Jackson Regarding Cornell's Lake Source Cooling Facility and Toxic Sites in Ithaca, NY and Walter Hang Meets With DEC Commissioner Grannis Regarding Cornell's Lake Cooling Discharge and Cleaning Up Cayuga Lake

That is why I wish to convey my gravest concern that EPA has a duty to make absolutely sure that any TMDL adopted for Cayuga Lake is comprehensive and effective. If this can be achieved, the Cayuga Lake TMDL could serve as a model for watershed clean ups conducted across the nation as EPA originally proposed. I implore you to make sure that this mandate is achieved without further delay.

A Comprehensive Clean Up Plan is Mandated for Cayuga Lake

First and foremost, a comprehensive Phase I Environmental Site Assessment must be conducted for the entire Cayuga Lake watershed, beginning with shoreline areas and tributary drainage basins. In the years to come, all sources of Cayuga Lake's water quality impairments must be systematically identified, investigated, alleviated and eliminated on a priority basis.

This effort must particularly focus on halting agricultural activities that cause uncontrolled nutrient releases documented in Cayuga Lake's watershed, notably by mandating manure spill reporting and clean up comparable to hazardous substance regulatory requirements. Riparian buffers also must be established to safeguard waterways from non-point pollution contributions.

See: New York State Reported Agricultural Manure Spills Map

Farming is an essential part of New York's economy and culture, but far greater efforts must be made to assist farmers in resolving pollution problems that current agricultural practices cause. I urge you to work closely with farmers, concerned citizens and New York authorities to eliminate water contamination hazards.

Conclusion

In conclusion, if EPA does not eliminate the Lake Source Cooling discharge to the most impaired area of Cayuga Lake as part of any TMDL adopted for this historic waterbody, a disastrous precedent would be set at a time when once-through, non-contact cooling water discharges are subject to more rigorous regulatory scrutiny and HABs are receiving greater attention than ever.

As a matter of national water quality protection importance, Lake Source Cooling's improperly authorized discharge must be eliminated once and for all so that water quality in Cayuga Lake can be restored to regulatory compliance. Any TMDL that is adopted under EPA and DEC authority must strictly fulfill all legal and regulatory requirements or your agencies will face intense criticism for failing to enforce the Clean Water Act.

As a cautionary tale, multiple New York City reservoirs were the subject of an inadequate TMDL adopted circa 2000 that has failed to halt HABs recently reported in both the Croton, Ashokan and West of Hudson reservoir systems. As a result, the drinking water for approximately ten million New Yorkers is imperiled by HABs because drinking water supplied from those upland reservoirs is not treated to remove microcystins that are currently the subject of the fourth round of your agency's Unregulated Contaminant Monitoring Rule program.

Equally unacceptable is the "pie-in-the-sky," "wish list" and "endless study" voluntary TMDL recently proposed for Honeoye Lake that shockingly fails to provide any meaningful plan of clean up action for that brutally impaired waterbody.

See: Total Maximum Daily Load for Total Phosphorus - Honeoye Lake, Ontario County, NY

Any TMDL adopted for Cayuga Lake must not suffer from these irrefutable shortcomings. After more than 20 years of sustained advocacy efforts by concerned citizens and elected officials, I believe with all due respect that the public will not accept any TMDL that lacks a mandatory comprehensive clean up plan that is uniformly perceived to be adequately rigorous, fair-minded and unbiased as well as fully funded for swift implementation. The TMDL also must end Lake Source Cooling's contribution to water quality impairments.

Please note that EPA oversight is particularly warranted due to recent extreme criticism for DEC's failure to prevent, clean up or alert the public to "un-permitted" cyanide discharges into Cayuga Lake that occurred over more than 40 years at a massive Cargill Salt mine in Lansing, NY near homes and drinking water intakes. DEC's on-going failure to require the largest privately-held corporation in America to resolve this pollution problem on a comprehensive basis is unacceptable and irresponsible. EPA must make sure that this mine can no longer pollute Cayuga Lake.

Halt Cargill Salt Mining Under Cayuga Lake Campaign

Against that background, Cornell University and all other parties responsible for causing or contributing to Cayuga Lake's on-going water quality impairments must not be allowed to decide the scope or implementation of any TMDL based on self-serving, specious assertions. Your agency bears the burden of enforcing critical public health and environmental protection laws and must fulfill that responsibility.

For all of these reasons, I request that you intervene personally to resolve the concerns that I have respectfully documented herein.

EPA Region 2 can restore public trust in a failed water quality protection program that experienced more HABS in New York State during 2019 than ever before. I urge you to implement the letter and the spirit of EPA Region 2's original 1999 proposal. After 20 years of intensifying water quality hazards, I believe you have a duty to clean up Cayuga Lake without further delay.

I trust that you will find my requests self-explanatory, but please do not hesitate to contact me if you have any questions that I might be able to answer. I would be pleased to meet with you if you wish.

Thank you for your consideration and your public service.

Very truly yours,

Walter Hang

4/5/12 Letter to EPA Administrator Lisa Jackson

5/23/12 Letter to Governor Cuomo

cc: Honorable Andrew M. Cuomo
Honorable Steve Englebright
Honorable Barbara Lifton
Honorable Donna Lupardo
Honorable Letitia James
Honorable Terrance Cuddy
Honorable James Giannettino
Honorable Richard DePaolo
Honorable Basil Seggos
Honorable Howard Zucker
Joseph Heath, Esq.
Peter Lehner, Esq.
John Adams, Esq.
Clifford Callinan, P. E.
Ralph Nader, Esq.
Martha E. Pollack