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7-8-2021 Walter Hang's Comments on New York's Fatally Flawed Draft Cayuga Lake Total Maximum Daily Load (TMDL) Clean Up Proposal Originally Required as a "High Priority" Circa 2002
Governor of New York State
The Capitol
Albany, NY 12224
Greetings:
I write respectfully to request that you require your Department of Environmental Conservation (DEC) to revise its fatally flawed proposed Cayuga Lake Total Maximum Daily Load (TMDL) in order to resolve the grave concerns documented below. DEC's draft watershed clean up plan is plagued by numerous fundamental shortcomings that render it utterly insufficient to fulfill the onerous requirements of 3 U.S.C. Section1313(d), Section 303(d) of the U. S. Clean Water Act. It would be irresponsible and inexcusable for DEC to adopt any TMDL that fails to fulfill all applicable local, state and federal regulatory requirements.
Cayuga Lake's water quality impairments warrant your urgent attention because this historic Finger Lake has achieved worldwide renown, is a linchpin of regional economic activity and provides drinking water to more than 40,000 local residents. It is inconceivable that local pollution hazards have festered for more than 50 years in the southern area of the lake adjoining Ithaca, NY.
Cayuga Lake is reportedly New York's number one priority for adopting a TMDL, a comprehensive watershed clean up plan. According to the U. S. Environmental Protection Agency (EPA), "A TMDL is the calculation of the maximum amount of a pollutant allowed to enter a waterbody so that the waterbody will meet and continue to meet water quality standards for that particular pollutant. A TMDL determines a pollutant reduction target and allocates load reductions necessary to the source(s) of the pollutant."
The key feature of a TMDL is that is intended to control "point" discharges subject to regulatory permits through Waste Load Allocations (WLA) and "non-point" pollution sources through Load Allocations (LA).
Cayuga Lake's Long-Standing Impairments Violate New York's Narrative Water Quality Standards
The southern end of Cayuga Lake was included in the national 303(d) registry of impaired waters circa 2002 when a TMDL was required as a "high priority." Water pollution hazards in that area of the lake are caused by uncontrolled nutrient releases that cause massive algal and aquatic weed infestations as well as turbidity problems that impair the waters from their best usages according to narrative water quality standards adopted pursuant to 6 NYCRR Part 703.
For decades, this segment of Cayuga Lake frequently violated New York's stringent phosphorus and nitrogen nutrient narrative water quality standard: "None in amounts that result in the growths of algae, weeds and slimes that will impair the waters for their best usages."
Violations of our state's turbidity narrative water quality standard were even more common: "No increase that will cause a substantial visible contrast to natural conditions."
These pollution hazards reportedly prohibited public bathing at Stewart Park, located at the southern terminus of Cayuga Lake, since the early 1960s. Boating and other secondary recreational uses of the lake are similarly impaired. Public health concerns focused on drinking water supplied to local residents containing trihalomethanes and haloacetic acids produced by disinfection of lake water containing natural organic matter that can be increased by algae and weed infestations.
These problems received local, state and national attention in The New York Times and many other news outlets. I have written to you numerous times to request that you require your administration to fulfill its legal obligations to clean up Cayuga Lake, but to no avail.
Please note that my prediction in paragraph two came true: Aid to Environment, Or Threat to Lake?; Cornell Pursues Pumping Plan, But Critics Fear Fouled Water - 3-27-1999
DEC's Proposed Cayuga Lake TMDL is Shockingly Inadequate and Cannot Fulfill the Requirements of the U. S. Clean Water Act
Against that backdrop, DEC's proposed TMDL is so shockingly inadequate that it is hard to believe the agency dithered for nearly 20 years before proposing such an insubstantial, dishonest, poorly-thought-out, hodge-podge, pie-in-the-sky sham of a plan. Anyone who has investigated Cayuga Lake's nutrient and turbidity problems knows the TMDL is doomed to failure because it provides no meaningful way to fulfill its legal mandate to restore water quality to applicable standards.
This is required for the southern end of Cayuga Lake where water quality impairments due to excess nutrient loading and turbidity are widespread. Three other segments of Cayuga Lake are included in the TMDL (Main Lake, Mid-South; Main Lake, Mid-North; Northern End) purportedly to be protective of water quality due to "watershed-wide TP [Total Phosphorus, not in the original] inputs, as well as lake circulation and nutrient mixing that influences water quality." These are largely specious concerns to divert attention from point and non-point pollution contributions into the most impaired segment of southern Cayuga Lake.
Phosphorus is generally recognized as the growth limiting factor in freshwater ecosystems. Phosphorus essentially fertilizes the growth of algae and aquatic plants in Cayuga Lake. The TMDL inexplicably focuses on controlling Total Phosphorus, which is largely composed of particulate phosphorus that is not highly biologically available because it is attached to soil particles instead of being dissolved in water. The TMDL's top priority should be eliminating Soluble Reactive Phosphorus (SRP) discharged into Cayuga Lake because this dissolved form of phosphorus is completely and immediately available to promote algal growth. Harmful Algal Blooms (HABs) are a huge water pollution hazard in Cayuga Lake because DEC fails to regulate SRP and other nutrient discharges.
DEC's Proposed TMDL Must Not be Adopted in its Current Form Because it Would Delay Any Meaningful Clean Up of Cayuga Lake For Decades to Come
For 23 years, my colleagues and I have played a key role in bringing Cayuga Lake's water contamination hazards to widespread public attention. We worked tirelessly to document and remediate pollution sources that impair public health and the environment. I commented respectfully and in extraordinary technical detail on regulatory proceedings. I have met with government authorities and citizens too many times to count to reverse the degradation of Cayuga Lake. All for naught.
Campaign to Protect Cayuga Lake From Cornell's Lake Source Cooling Facility
I decry DEC's proposed TMDL in the strongest of terms because it is an embarrassment to the honor of a once-esteemed agency that warranted public acclaim because it was a national leader in protecting New York's environment and public health. DEC is now an agency that shills for polluters by refusing to enforce essential regulatory requirements.
That must not be allowed. With all due respect, if you tolerate inadequate regulatory enforcement with regard to the proposed TMDL, your fitness to serve as governor will be called into question and you must be held accountable. As New York's chief executive, an officer of the court, a former attorney general and a diligent student of government, you likely understand this better than anyone in New York State government.
The bottom line is that DEC's proposed TMDL would delay for decades any comprehensive clean up of Cayuga Lake's increasingly problematic HABs, aquatic weed infestations and turbidity hazards that impair the waters from their best usages. As you are well aware, "justice delayed is justice denied." For the reasons documented below, you must require the TMDL to be revised in order to resolve its shortcomings.
Fatal Flaws of DEC's Cayuga Lake TMDL
As I will explain, DEC's Cayuga Lake TMDL is unacceptable because it:
a) fails to require a reduced WLA for tens of millions of gallons per day of wastewater containing SRP and other nutrients that is discharged without any treatment by Cornell's Lake Source Cooling (LSC) facility (State Pollutant Discharge Elimination System (SPDES) # NY0244741) into the shallow waters on the southern shelf of Cayuga Lake precisely where water quality impairments are the most severe. This is unacceptable, improper and unthinkable because Cornell's own raw data analysis from its Before-After-Control-Impact (BACI) study indisputably documented a statistically significant increase in chlorophyll a, an indicator of algal growth and ecosystem response to nutrient loading, after LSC began operation. LSC is reportedly the second largest discharge of phosphorus into Cayuga Lake;
See BACI Findings at: Letter to Governor Cuomo
According to the original LSC SPDES permit, this statistically significant determination would have required the LCS effluent discharge pipe to be moved "off the shelf" so that the LSC's untreated discharge would be released into deeper, cold, dark water where SRP and other nutrients would not fertilize HABs caused by cyanobacteria that inundate Cayuga Lake in warm weather months and threaten drinking water supplied to local residents because it likely contains highly toxic microcystins. These unregulated "emerging contaminants" pose serious public health concerns that are recognized nationwide;
DEC never should have granted LSC a SPDES permit because it violates 40 C.F.R §122.4(i) of the U. S. Clean Water Act by permitting Cornell to release nutrients into the specific segment of Cayuga Lake that was already impaired by excess nutrients that cause HABs and aquatic weed infestations. This provision 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;"
EPA recognized DEC's massive regulatory error when it tried to rectify the problem, but DEC and Cornell regrettably killed the proposal: U. S. EPA's 7/99 Landmark Lake Source Cooling/Cayuga Lake Clean Up Proposal
DEC clearly recognizes the deleterious impact that LSC's untreated SRP discharge has on Cayuga Lake because the facility is prohibited from increasing the volume of its untreated discharge due to "enforceable provisions to achieve a 100% offset of the new loadings." That is an unacceptable rationale for not requiring the current LSC discharge to be converted into a closed loop system, treated to remove all SRP and other nutrients or moved "off the shelf" as provided for in its original permit;
Any TMDL adopted to safeguard Cayuga Lake must require a reduced WLA that halts LSC's untreated discharge of SRP and other nutrients on a comprehensive basis once and for all in order to reduce water quality impairments in the lake;
b) fails to require any WLA or LA for turbidity, lead, other heavy metals or a wide range of toxic chemicals known to impact Cayuga Lake due to the uncontrolled contamination sources referenced below;
c) fails to require strict enforcement of New York's narrative water quality standards for phosphorus, nitrogen and turbidity. The TMDL proposes a numerical chlorophyll a water quality "target" that purportedly translates the nutrient narrative water quality standard into a numerical limit. This is essentially meaningless because the TMDL fails to provide any means of enforcing the target guideline any more effectively than the unenforced nutrients narrative water quality standard that has failed to prevent Cayuga Lake's pollution impairments for more than 50 years;
d) transforms legally mandated strict enforcement of regulatory clean up standards into 100% voluntary "best management practices," "targets" and other legally unenforceable actions;
e) fails to identify the full spectrum of specific pollution sources that causes Cayuga Lake's water quality impairments. Monitoring efforts used to develop the TMDL focused on limited "tributary monitoring data" and "modeling analyses" based on those available data. These self-fulfilling efforts cannot be considered reliable, representative or comprehensive given the failure to assess through field investigations and analytical monitoring the: 1) wide range of nutrients, suspended solids and toxic pollutants that cause Cayuga Lake's impairments, 2) hundreds of tributaries that do not drain into the mere five tributaries monitored to develop the TMDL and 3) numerous pollution sources identified by a preliminary watershed characterization that my colleagues and I undertook circa 1998. DEC has steadfastly ignored these detailed findings for decades even though the investigation received national attention in The New York Times and is available for public review at the Tompkins County Library;
f) fails to mandate the clean up of hundreds of known pollution sources that my colleagues and I identified, including extraordinarily high toxic contamination levels at Ithaca Gun and Ithaca Falls which are documented to migrate into Fall Creek, a major tributary to the most heavily impaired segment of Cayuga Lake. Additional unremediated contamination hazards which threaten the lake include, but are not limited to: Nate's Floral Estates, Morse Chain, Wallace Steel and Southwest Park;
g) sets no priorities for alleviating and eliminating documented pollution contributions on a comprehensive basis in order to maximize the effectiveness of remediation efforts;
h) provides no adequate, dedicated or sustained funding for long-term implementation of a TMDL. The limited availability of existing grants is no substitute for adequate long-term funding needed to clean up Cayuga Lake;
i) fails to provide any meaningful timetable or deadline for resolving Cayuga Lake's water quality impairments. The ten-year timeframes for implementing portions of the TMDL are fantasies that have no bearing on reality since those actions are voluntary, unfunded and otherwise unlikely to happen;
j) is based on a modeling analysis limited to water quality data collected between 1998 and 2013. The model was reportedly validated using data compiled for only two years (1999 –a dry year and 2006 –a wet year). This analysis is based on ancient history that cannot possibly reflect current conditions in Cayuga Lake. The limited validation analysis is the worst kind of data "cherry picking" that fails to reflect wide ranging water quality conditions in the lake; and
k) proposes WLA for SPDES regulated point discharges and LAs for unregulated waste loads based on self-fulfilling and theoretical "iterative loading reduction scenarios" that are completely unproven through implementation of actual pollution discharge reductions. Given the inadequacy of available watershed pollution contribution data for Cayuga Lake and the unproven effectiveness of DEC's methodology, this approach is unfounded, potentially involves conflicts of interest and must not be relied upon.
Request that Cayuga Lake be Cleaned Up Once and For All Without Further Delay
I request that any TMDL adopted to clean up Cayuga Lake's water quality impairments require a Phase I Environmental Site Assessment to be undertaken in compliance with E1527-13 or more stringent ASTM protocols. This essential first-step field investigation must map and profile all of the pollution releases that cause the lake's water quality impairments. Documented pollution sources must be comprehensively cleaned up on a priority basis in strict compliance with all applicable regulatory requirements. This process must be continued in order to eliminate water quality impairments as well as to safeguard water quality on a going-forward basis.
In order to assure the success of regulatory and clean up efforts, all professional engineers, professional geologists and attorneys involved with New York State administrative actions must strictly enforce all applicable legal and regulatory requirements. Failures to fulfill this standard must be considered a breech of ethical obligations that requires professional accreditations to be rescinded. This is likely the only way to assure strict enforcement of New York's public health and environmental protection safeguards.
DEC's Belief That Stakeholders Will Take Meaningful Action to Clean Up Their Pollution Contributions to Cayuga Lake is Divorced From Reality
DEC's TMDL is divorced from regulatory reality because it is based on an irrational assertion, "The objective of the implementation section is to provide stakeholders with resources and recommendations to select appropriate and effective management actions that will achieve the Cayuga Lake TMDL TP [total phosphorus, not in the original] reductions that will restore and protect the best uses. However, attainment of the water quality standards will depend on achieving the Chl-a [chlorophyll a, not in the original] water quality target concentrations for each lake segment."
If this extraordinarily misguided voluntary strategy had any hope of achieving its goal, that would have already happened decades ago because Cornell University, farmers, CAFOs (Concentrated Animal Feeding Operations), industrial wastewater discharges, municipalities, toxic site responsible parties and other "stakeholders" have had ample opportunities to obtain government grants to abate their pollution hazards or otherwise take action to fulfill their legal responsibilities.
The grim reality is that public health and environmental protection regulatory requirements are increasingly meaningless due the failure of government authorities to enforce landmark laws enacted in the 1970s, notably the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Safe Drinking Water Act, the New York State Navigation Law and numerous other public health and environmental protection statutes.
DEC's TMDL proposal is a perfect embodiment of this problem. For example, DEC simply assumes all CAFOs will comply with their permit requirements and contribute zero pollution to Cayuga Lake's watershed. This assertion is directly contradicted by reported uncontrolled releases of manure ranging up to 10 million gallons. Massive manure spills were never cleaned up in compliance with applicable standards according to DEC's own data.
New York State Reported Agricultural Manure Spills Map
Selected New York State Reported Agricultural Manure Spill Profiles
DEC's failure to resolve water quality impairments and toxic contamination hazards on a statewide basis is irrefutable because it is documented by the agency's own data.
Cayuga Lake's Clean Up Fate Will Set State and National Precedents For Good or For Ill
Since Cayuga Lake is New York's number one priority for TMDL adoption, DEC's woefully inadequate TMDL proposal must not be adopted without fundamental revisions because it would set a horrific precedent for perpetuating water quality hazards in other impaired waterbodies included in New York's 303(d) registry.
This must not be allowed to occur because the resulting lack of regulatory enforcement would exacerbate illegal public health and environment hazards and threats to the drinking water for more than 10 million New Yorkers, including people who rely on water supplied by the New York City supply system that is routinely impacted by HABs.
Even worse, since DEC would be acting under authority delegated by EPA, regulatory precedents set in New York could be replicated from coast-to-coast. This could result in nationwide voluntary public health and environmental enforcement.
In conclusion, I believe your administration would be criminally negligent if the proposed Cayuga Lake TMDL is adopted without fundamental revisions because it would be improper for New York to conclude a formal regulatory proceeding by deciding not to enforce legally mandated regulatory requirements. It is bad enough that New York has delayed adopting a TMDL for more than 20 years. It would be even worse if our state decides not to enforce New York's clean water laws at all, ever.
In contrast, if a TMDL successfully resolves Cayuga Lake's water quality impairments that model plan could be replicated across New York as well as in impaired waterbodies all over America. With that goal in mind, it is imperative that New York's long-standing failures to reverse water pollution impairments end now. When public health and environmental protection laws are not enforced, it is as if they were never enacted.
Those sentiments are respectfully expressed by myself, activists, elected officials, environmental groups and citizens all over New York who are concerned about water quality impairments and HABs.
In conclusion, I trust that you will find my respectful comments self-explanatory, but please do not hesitate to get in contact with me if I can answer any questions or otherwise clarify my detailed requests.
Very truly yours,
Walter Hang
