Cayuga Lake Defense Fund
P. O. Box 294, Ithaca, NY 14851 607/275-9054, e-mail: firstname.lastname@example.org
Mr. N. G. Kaul, PE
Director, Division of Water
50 Wolf Road
Albany, NY 12233-3500
Dear Mr. Kaul:
I write to respond to your May 25 letter regarding the Cayuga Lake Defense Fund's request for your agency to revoke Cornell's Lake Source Cooling discharge permit because it does not conform with applicable Total Maximum Daily Load (TMDL) regulations.
I will specifically document how the permit violates 122.4(i) of the Clean Water Act since your letter fails to address that critical question. I would also like to underscore why your agency's decision about revoking or modifying the permit will set a policy precedent, for good or for ill, regarding the implementation of the TMDL program in New York and across the nation.
1. Cayuga Lake PWL, 303(d) Segment
You point out that even though southern Cayuga Lake was added to the Priority Water Problem List in 1989 and is now included in the 303(d) listing, "There is insufficient data to verify either the source, pollutant or impairment of problem."
Southern Cayuga Lake is obviously impaired, but your agency has neither investigated the problems that were originally identified ten years ago nor taken rigorous action to eliminate them. Public bathing is banned due to turbidity and high bacteria counts. Algal blooms and aquatic weed infestations have created widespread aesthetic impairments. Uncontrolled toxic contamination sources are located at the lake's edge. Against that background, it is inconceivable that you are permitting a new discharge that will contribute to existing water quality violations.
I believe that you may be mistaken about when your agency first inventoried problems in southern Cayuga Lake. Jeffrey A. Myers wrote on 10/13/98 that southern Cayuga Lake was added to your agency's Non-point Source Water Quality Assessment List in August 1989 and later added to the
1991 Priority Water Problems List. Please resolve the conflicting dates for the record.
2. Discharge of "Phosphorus Rich" Water
You argued that the Lake Source Cooling discharge will not be "phosphorus rich." You noted that the phosphorus discharge "will be lower in concentration than the existing water in the discharge area even under the worst case scenario of operation." That statement is clearly contradicted by the available data for the form of phosphorus (Soluble Reactive Phosphorus) that is most likely to contribute to existing pollution problems in Cayuga Lake.
I enclose an analysis by Professor Joseph D. Francis, who has taught advanced statistical analysis at Cornell University for more than 30 years. As you will see from the enclosed data, Soluble Reactive Phosphorus concentrations at the proposed intake depth of 250 feet are projected to be between 10.18 ppb (1995) and 10.22 ppb (1996). (As you know, there is no actual monitoring data for phosphorus at that depth.) These concentrations are between 2.12 and 4.10 times the concentration of Soluble Reactive Phosphorus monitored in the vicinity of the proposed outfall during the same years.
(Please note that Cornell's 1999 monitoring data do not fulfill the June through September sampling requirements established by your agency.)
Cornell assessed the possible water quality impact of Lake Source Cooling by determining that ambient water near the approximate middle of the lake did not exceed the phosphorus guidance value of 20 parts per billion. Cornell then determined that the proposed discharge would not increase the amount of total phosphorus in the middle of the lake.
Monitoring for total phosphorus near the mid-point of Cayuga Lake utterly fails to represent water quality conditions miles away at its shallow southern end. Cornell's environmental assessment of the Lake Source Cooling discharge is fundamentally invalid for that reason.
Instead, your agency should enforce the narrative water quality standard that provides that phosphorus shall be limited to "[n]one in amounts that will result in algae, weeds and slimes that will impair the waters for their best usages." 6 N.Y.C.R.R. 703.2.
Southern Cayuga Lake clearly violates that standard. You are familiar with the extensive weed infestations in the vicinity of the proposed discharge. Rotting weeds piled several feet high on the lake
shore create serious aesthetic impairments, including the highly objectionable stench referenced in the attached Chamber of Commerce letter. Huge mats of floating weeds also hinder the navigation of boats in many areas of the southern lake.
TMDL regulations at 40 CFR 122.4(i) of the Clean Water Act prohibit the granting of discharge 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." See also 40 CFR 123.25 (applying the new source prohibition at 40 CFR 122.4(i) to state NPDES programs).
Please note that there is no requirement that a waterbody must be listed on 303(d) in order for the 122.4(i) moratorium provision to apply. As a result, exactly when Cayuga Lake was listed on 303(d) has nothing to do with whether the moratorium should be enforced.
Cornell's proposed discharge of Soluble Reactive Phosphorus would undoubtedly "contribute" to the violation of the applicable standard for phosphorus. This conclusion is based on the fact that:
a) phosphorus is the limiting growth factor for algae and aquatic weeds in Cayuga Lake and b) any discharge of Soluble Reactive Phosphorus would be rapidly and readily uptaken by algae and weeds upon release into the shallow waters of the southern lake.
This belief is supported by your agency's State Environmental Quality Review Findings Statement, that concluded: "The additional transfer of phosphorus to the upper waters has the potential to increase the growth of plants and algae. This is a potential aesthetic impact in the region of the outfall." The Findings Statement also noted that: "The possibility of algae blooms is real."
In addition to phosphorus problems, Cayuga Lake violates the New York narrative water quality standard that provides that suspended and settleable solids, such as silt, shall be limited to "[n]one...that will cause deposition or impair the waters for their best usages." 6 N.Y.C.R.R. 703.2. Public bathing at Stewart Park in the southern end of Cayuga Lake has been banned for more than 20 years due to high turbidity levels. See New York State Priority Waterbodies Listing.
Cornell's discharge permit is illegal because construction of the project's intake structure along more than a mile of the shallow bottom of the lake would exacerbate existing water quality violations associated with silt. As you know, 122.4(i) prohibits permits when water quality violations are caused or contributed to by the construction of new sources or discharges.
For all of these reasons, you must revoke or substantially modify Cornell's discharge permit to conform with applicable TMDL regulations.
Your letter also referenced several proposed actions that you argued will alleviate phosphorus contributions to Cayuga Lake. The Cayuga Lake Defense Fund is not persuaded that these steps will sufficiently address the lake's persistent problems.
First, you noted that funding is available to upgrade the local wastewater treatment plants to improve phosphorus removal. This will probably have a minimal effect because far more wastewater will be discharged once a proposed interceptor is built up the east side of the lake and large-scale housing development follows along its path. As a result, the concentration of phosphorus per gallon may go down, but the total number of gallons will go up.
You also referred to various grants to control non-point sources of pollution in the southern watershed. The scope of this problem is immense and dwarfs the pollutant contributions of the wastewater treatment plants. It will take decades to identify and control those non-point sources. In the meantime, Cayuga Lake will remain impaired.
The Cayuga Lake Defense Fund stands by its original suggestion that superior cooling alternatives are available to Cornell, though these alternatives were not discussed in sufficient detail in Cornell's DEIS. At a minimum, a totally closed loop system would eliminate the discharge of heated, soluble reactive phosphorus-rich water to the most heavily impaired segment of Cayuga Lake.
4. Raising of Lake Temperatures
You acknowledge in your response that the heat-exchange would raise the processed lake water temperature by as much as 15 degrees Fahrenheit. Mixing zone and thermal discharge criteria are addressed immediately below.
5. Variance for Discharge
Regarding the thermal discharge criteria set forth in N.Y.C.R.R. Part 704, you maintain that "Sections (ii) and (iii) of this section address discharges to areas of lakes subject to stratification (emphasis added)." The regulations, however, mention nothing about "areas of lakes." The regulation clearly states "in lakes subject to stratification..."
Obviously, every stratified lake has un-stratified near-shore sections. Part 704 could not have been intended to allow a loophole for near-shore discharges in stratified waterbodies where no such exception is mentioned. If it did, there would be no need for the regulation to begin with.
The meaning of 704.2(3)(iii) could not be clearer. Where the opportunity exists to return a cold discharge to the hypolimnion, it should be accomplished. Any change to this criterion must withstand a coordinated variance review involving USEPA and including a dedicated public hearing. The regulations make no mention of any other procedure or determination that could be made by the State to bypass the variance review.
Furthermore, to the knowledge of Steve Eidt and Paul Kolikowski at DEC, there was no existing precedent on which to base a decision to allow a cold discharge into the epilimnion of a stratified waterbody. Nor, in the case of Region 7 at least, is there evidence of a variance procedure having occurred at any time, for any application.
Your agency's arbitrary interpretation of the thermal criteria is flawed. By volume, 80% of the Lake Source Cooling discharge would be colder than the receiving water. The thermal plume models in Cornell's DEIS show that the shallow water discharge would create thermal plumes nearly 1,000 feet in length. By comparison, a deep water discharge (as called for in Part 704) would create virtually undetectable thermal plumes. Nonetheless, the discharge was permitted in the shallow water. See DEIS Figure 2.3.2-23E. Compare DEIS Figure 4.7-4 Alternative Discharge: 30 Meters Deep.
Also, there was ample evidence during the permit review of Lake Source Cooling to indicate that the technology and resources existed to return the cold water discharge to the hypolimnion as specified in 704.2(3)(iii). The proposed location of the intake structure in the hypolimnion is proof enough. In fact, Cornell realized that the thermal criteria directed its cold water discharge to the hypolimnion and fully expected to apply for the variance outlined in 704.4(b): "Because the return flow is cooler than background water temperatures during the summer, a variance to the state's discharge criteria is required." See DEIS Chapter Summaries, page 15.
6. Long-Term Solutions
Cayuga Lake obviously violates New York's narrative water quality standards for silt and phosphorus. It is also polluted by a wide range of toxic contamination sources, point-source discharges as well as urban and rural non-point sources. The full impact of those pollution sources cannot be determined at this time simply because no watershed characterization has been undertaken in the ten years since your agency first took note of Cayuga Lake's pollution problems.
You referenced efforts to develop a watershed management plan for Cayuga Lake. It is sheer folly to undertake that effort before the full range of Cayuga Lake's problems has been identified and evaluated. Unless that investigation is completed, it will be impossible to know what options are available to solve the lake's problems.
Cayuga Lake Defense Fund's proposal makes far better public policy sense. First and foremost, the 122.4(i) moratorium provision should be implemented and enforced so that existing water pollution problems are not made worse. Once that has been accomplished, full-scale watershed characterizations, stabilization plans and optional stabilization plans must be undertaken. Once that has been accomplished, it can be determined whether a TMDL is required. EPA is reportedly trying to implement this policy nationally. That effort would have no credibility if the same protection were not required for Cayuga Lake.
In conclusion, your letter fails to address the critical issue of whether the Lake Source Cooling Project discharge permit is illegal due to the 122.4(i) moratorium provision of the Clean Water Act and should now be revoked or modified to comply with applicable TMDL regulations. Similarly, Commissioner Cahill's letter to the Natural Resources Defense Council is silent on that critical question. He makes a reference to the fact that Cayuga Lake is on the "for verification" section of the 303(d) list and notes that the permit was issued before the lake was listed. As documented in this letter, neither of those facts absolves your agency of its responsibility to enforce the 122.4(i) moratorium provision and prohibit
the Lake Source Cooling Project discharge permit.
Please respond to that key issue without further delay. Your letter arrived five months after we wrote to express our concerns. I trust that you will be able to respond more promptly to the critical issues raised in this letter. While your agency has delayed addressing the key issues, construction of Lake Source Cooling has partially commenced and is likely to accelerate while regulatory action is pondered.
|With sincere regards,
|Richard P. DePaolo
|cc: ||Ralph Nader, Esq.||Hon. Chuck Fox
|Hon. John P. Cahill||Hon. Ken Lynch
|Rick Parrish, Esq.||Hon. Chuck Sutfin
|Kristen Boyles, Esq.||Hon. Jeanne Fox
|Steve Eidt, P.E
|Melissa Samet, Esq.||Hon. Geoffrey Grubbs
|Mark Izeman, Esq.|| ||Hon. James Pendergast
|Hon. Maurice Hinchey||Hon. Kathleen Callahan
|Hon. Martin Luster|| ||Hon. Michael Cook
|Hon. James Seward||Hon. Philip Sweeney