January 3, 2000

By FAX

Hon. Kathleen Callahan, Director
DEPP
USEPA
290 Broadway
New York, NY 10007

Dear Ms. Callahan:

It is with great disappointment and concern that I respond to your December 23, 1999 letter to citizens regarding Cornell Lake Source Cooling (LSC) and southern Cayuga Lake. It is incredible, in the face of such clear-cut regulatory wrong-doing, that your agency can offer only bureaucratic paralysis. Through its secrecy and stagnancy, EPA Region II has sanctioned an illegal discharge, violated the public trust, and compromised a key nationwide policy initiative to require pollution "offsets" as a condition of allowing new or expanded discharges into stressed waterbodies. Your response letter utterly fails to address the many substantive issues brought to EPA by the Cayuga Lake Defense Fund, Tompkins County Environmental Management Council, the Cayuga Nation, the League of Women Voters and countless concerned citizens.

First, you claim that "the federal authority to comment on the NYSDEC discharge permit expired in Spring of 1998," and that your agency "chose to become involved...in early 1999." As you should have read in my July 15, 1999 memo to Michael Cook (which is fully supported by FOIA documents received from NYSDEC and EPA), NYSDEC did not transmit the requisite proposed draft SPDES permit for Lake Source Cooling to EPA Region II in direct violation of FWPCA §402(d)(1) and MOA Art. III, par. 1. Therefore, EPA was illegally excluded from its role in the LSC permit review process which would have provided a 90-day comment/intervention period. It is erroneous for you to imply that the "federal authority to comment on the NYSDEC discharge permit" ever existed in the case of Lake Source Cooling.

Second, you allude to the June 8, 1999 meeting between your agency and concerned citizens as evidence of your "substantial efforts to be responsive to the public." But, what you fail to mention is your explicit commitment at that meeting to contact citizen representatives in "a week to ten days" to "discuss appropriate next steps." As you know, that "week to ten days" never arrived. To the contrary, internal EPA documents reveal that you intentionally forestalled public involvement at the request of NYSDEC Division of Water Director, N.G. Kaul.

Then, behind closed doors, you tried to broker a deal between EPA, NYSDEC and Cornell. The EPA "briefing" to citizens on August 13, 1999 to which you refer was nothing more than a formality, strictly after the fact. Citizens had been kept in the dark for six weeks while your "proposal" to NYSDEC and Cornell was being stripped of its potential. Moreover, it wasn't until late September, 1999 (almost three months after our meeting) that citizens discovered the truth; and then, only via the Freedom of Information Act. In light of the abundant evidence documenting your agency's stealth and duplicity, it is wrong for you to characterize EPA's involvement with the public as "responsive."

Third, you justify your exclusive discussions with NYSDEC by boasting that an agreement was reached "to work together on identifying factors which will be considered" as part of the SPDES condition which allows NYSDEC to re-examine the outfall location. You know this is a meaningless and unenforceable agreement as it allows only for "best engineering judgment" to ascertain adverse impacts and remediation.

What you fail to mention to citizens is that your original secret proposal to Cornell and NYSDEC called for the establishment of "explicit criteria" which would be used to trigger re-evaluation of the outfall relocation should specific numerical thresholdsbe reached. The public has a right to know that this provision was gutted bythe New York State Department of Environmental Conservation.

EPA's proposed "outfall relocation study" (also killed by Cornell and NYSDEC) is particularly auspicious considering that, according to the thermal discharge criteria at 6 N.Y.C.R.R. §704.2(3)(iii), the Lake Source Cooling discharge should only have been considered as a deep water discharge to begin with: "In lakes subject to stratification as defined in Part 652 of this Title, thermal discharges that will lower the temperature of the receiving waters shall be discharged to the hypolimnion..." Though LSC would always be adding heat to Cayuga Lake, the project would discharge a 76% higher volume of effluent during the months when the discharge would be much colder than the receiving waters . Any variance to the thermal criteria at Part 704 must be approved through a joint EPA/NYSDEC variance application procedure.

As spelled out in an April 12, 1999 memo to Phil Sweeney of your agency, the NYSDEC did not comply with the thermal criteria, nor with the variance procedure specified by law. Again, EPA was illegally excluded by NYSDEC from its mandatory role in the regulatory review of Lake Source Cooling. In order to save Cornell money, the permit was granted by NYSDEC (without a variance) to discharge at a depth of 9-12 feet.

Though EPA attorney Matt Garamone did not deny the legal implications raised by the violation of thermal criteria, he brushed it aside as a "State matter." If NYSDEC will not enforce basic state and federal laws and EPA will not exercise oversight in any way, what recourse does the victim public have?

Your letter goes on to omit any reference to the original EPA "offsets" proposal ("Development and implementation of projects to reduce loadings of phosphorus..."). Instead you refer to a later weaker version of the proposal which was, itself, killed due to objections by NYSDEC. This omission continues to mislead citizens about the intent of the original proposal.

Equally bewildering is the statement, "NYSDEC raised certain concerns, which EPA understands."

What are the concerns? What does EPA "understand?"

Regarding Cornell's role, you write, "Cornell declined to engage at this time."

With all due respect, if not "at this time," then when? Would you have the public believe that Cornell will have more of an incentive to "engage" in protection measures and offsets once the project is online? Your original proposal rightfully states, "offsets" are to be considered as an "element of the permitting of new dischargers to stressed waters." Offsets must be achieved in advance.

Finally, you state that "our broaching of these ideas does not reflect a lack of confidence in the current permit or our review results," and, that EPA has "concluded that the Lake Source Cooling Project discharge will have no discernible impact... "

Your agency's own findings flatly contradict these claims. Handwritten notes prepared during a June 4, 1999 meeting between EPA and either NYSDEC or Cornell reveal an anticipated algae increase due to high concentrations of Soluble Reactive Phosphorus at the intake depth: "SRP- would grow 5-6% more algae. Extra volume would be distributed." (See attachment).

This finding is particularly troubling in light of the discharge moratorium provision at 40 CFR §122.4(i) of the Clean Water Act which prohibits 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." Moreover, it proves that NYSDEC and Cornell University were well aware of the project's anticipated impacts throughout the permit process but made no attempt to inform the public, nor to abide by the laws which prohibit LSC's nutrient discharge.

You know that southern Cayuga Lake already violates the EPA-approved narrative water quality standard for phosphorus 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." Obviously, a discharge that "would grow 5-6% more algae" would, synonymously, "result in algae" (as prohibited by the narrative standard) and, thus, "cause or contribute" to existing water quality standards violations (triggering the discharge moratorium at 40 CFR §122.4(i) of the Clean Water Act). Again, by definition, EPA could only have proposed "offsets" if there was to be something (an impact) to offset.

In closing, your letter fails to address the key question of whether the public will be given an opportunity to comment on EPA's original proposal, now that it has been disclosed. As long as you avoid this critical question, the credibility of your agency will continue to erode and the overall ineffectiveness of EPA will be brought under increasing scrutiny by groups and citizens. I look forward to a timely, specific reply.

Sincerely,

Richard P. DePaolo

cc: Hon. Jeanne Fox, Regional Administrator
Hon. Philip Sweeney