Liberty Twp. v. Commonwealth

Full title: LIBERTY TOWNSHIP and CEASRA, INC. v. COMMONWEALTH OF PENNSYLVANIA…

Court: Commonwealth Court of Pennsylvania

Date published: Dec 19, 2024

EHB 2023-036-L (Pa. Cmmw. Ct. Dec. 19, 2024)

Opinion

EHB 2023-036-L

12-19-2024

LIBERTY TOWNSHIP and CEASRA, INC. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee

DEP, General Law Division: Attention: Maria Tolentino For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Nicholas A. Maskrey, Esquire Kayla A. Despenes, Esquire Dearald Shuffstall, Esquire For Appellants: Lisa Johnson, Esquire For Permittee: Alan Miller, Esquire, Brian Lipkin, Esquire, Jake Oresick, Esquire

Bernard A. Labuskes, Jr., Board Member and Judge

DEP, General Law Division: Attention: Maria Tolentino

For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Nicholas A. Maskrey, Esquire Kayla A. Despenes, Esquire Dearald Shuffstall, Esquire

For Appellants: Lisa Johnson, Esquire

For Permittee: Alan Miller, Esquire, Brian Lipkin, Esquire, Jake Oresick, Esquire

ADJUDICATION

Bernard A. Labuskes, Jr., Board Member and Judge

Synopsis

The Board dismisses an appeal of an NPDES permit issued to a municipal waste landfill authorizing the discharge of stormwater from the construction of the landfill and treated leachate from a future on-site wastewater treatment plant. The Board revises the permit to correct a typographical error listing the parameter radium-226 twice in the monitoring requirements for one of the outfalls instead of including a monitoring requirement for the parameter radium-228. The permit is otherwise upheld. The appellants have not met their burden of proof to establish that any of the effluent limitations or requirements in the permit were unlawful or unreasonable or that the permit should contain requirements for any additional parameters.

FINDINGS OF FACT

The parties stipulated to the following facts:

1. CEASRA Inc. ("CEASRA") is a Pennsylvania non-profit corporation. (Parties' Stipulation of Facts No. ("Stip.") 1.)

2. Liberty Township is a township in Mercer County, Pennsylvania. (Stip. 2.)

3. CEASRA and Liberty Township are the Appellants. (Stip. 3.)

4. Tri-County Landfill, Inc. ("Tri-County") is a Pennsylvania corporation. (Stip. 4.)

5. The Department of Environmental Protection (the "Department") is the agency authorized to issue National Pollutant Discharge Elimination System ("NPDES") permits of discharges of industrial and other wastewaters in the Commonwealth under the Pennsylvania Clean Streams Law, 35 P.S. §§ 691.1 - 1001, including 35 §§ 691.5(b)(1) and 402. (Stip. 5.)

6. On September 9, 2019, Tri-County sent letters to Liberty Township, Pine Township, and Mercer County, advising that Tri-County would be submitting an NPDES Permit application to the Department, and advising that under Act 14, they would have 30 days to submit comments to the Department. Liberty Township received this letter on September 11, 2019 at 10:32 a.m. (Stip. 6.)

7. On September 18, 2019, Tri-County submitted to the Department an initial Application for NPDES Permit No. PA0263664 (the "NPDES Permit"), which contained: a. Narrative; b. Forms; c. Figures; and d. Appendices. (Stip. 7; Parties' Joint Exhibit No. ("J. Ex.") 2.)

8. On September 22, 2019, September 29, 2019, October 6, 2019, and October 13, 2019, notice of the NPDES Permit application was published in The Sharon Herald. (Stip. 8.)

9. On April 17, 2020, Tri-County submitted to the Department additional information, including sample analyses. (Stip. 9.)

10. On May 4, 2020, the Department requested that Tri-County collect three additional effluent samples. (Stip. 10.)

11. On August 24, 2020, Tri-County responded to the Department's May 4, 2020 request and provided analytical results of the additional requested sampling. (Stip. 11.)

12. The Department prepared a Fact Sheet regarding the NPDES Permit application. On October 30, 2020, Adam Pesek signed the Fact Sheet on behalf of the Department. On November 2, 2020, Justin Dickey signed the Fact Sheet on behalf of the Department. (Stip. 12; J. Ex. 3.)

13. On November 9, 2020, the Department sent the draft NPDES Permit, Fact Sheet with attachments, and draft public notice to Tri-County. (Stip. 13.)

14. On November 28, 2020, a draft of the NPDES Permit was published in the Pennsylvania Bulletin for public comment. (Stip. 14; J. Ex. 4.)

15. On December 23, 2020, the Department granted a 15-day extension to the public comment period, which was the maximum allowed under 25 Pa. Code § 92a.82(d). (Stip. 15.)

16. Liberty Township and CEASRA submitted comments on the NPDES Permit application. (Stip. 16.)

17. On December 28, 2020, the Department issued Tri-County Solid Waste Permit No. 101678 (the "Solid Waste Permit") for a solid waste facility located in Liberty Township and Pine Township. The Solid Waste Permit was based upon the application entitled "Major Permit Modification - Replacement Application." The Solid Waste Permit has a 10-year term from December 28, 2020 through December 28, 2030. (Stip. 17.)

18. On April 15, 2021, the Department held a virtual public hearing on the NPDES Permit application, where members of the public were permitted to provide testimony and comment on the application. The Department issued public notice of this hearing in The Sharon Herald and the Pennsylvania Bulletin. (Stip. 18.)

19. On February 21, 2023, the Department provided Tri-County with the proposed final NPDES Permit, which included changes from the draft NPDES Permit. (Stip. 19.)

20. In response to the public comments, one of the changes made in the final NPDES Permit was to add quarterly monitoring for radium-226 and radium-228 at Outfall 006. However, radium-226 is listed twice in Part A, Section I.C on page 7 of the NPDES Permit, and radium-228 is not listed on that page, and both radium-226 and radium-228 are identified in Part C, Section VI on page 31 of the NPDES Permit. (Stip. 20.)

21. On February 23, 2023, Tri-County advised the Department that it had no comments on the draft final NPDES Permit. (Stip. 21.)

22. On March 6, 2023, the Department issued a Comment and Response Document stating that: "Many of the comments received were similar and concentrated on a few major issues: radiological concerns related to the acceptance of oil and gas waste at the landfill, flooding concerns, impact from the industrial waste discharges to groundwater and water wells, human health, wildlife health, proposed permittee's compliance history, and submitted application data and information." (Stip. 22; J. Ex. 6.)

23. On March 10, 2023, the Department issued the NPDES Permit to Tri-County. The NPDES Permit has a five-year term, from April 1, 2023 through March 31, 2028. Justin Dickey signed the NPDES Permit on behalf of the Department. (Stip. 23; J. Ex. 1, 8.)

24. On March 10, 2023, the Department provided a copy of the NPDES Permit to Liberty Township and CEASRA. (Stip. 24.)

25. Notice of the Department's issuance of the NPDES Permit was published in the Pennsylvania Bulletin and The Sharon Herald. (Stip. 25; J. Ex. 9.)

26. The NPDES Permit authorizes discharges of the following types of effluent to an Unnamed Tributary (UNT) of Black Run:

Outfall 004: "Stormwater runoff from construction of landfill cells and from earth berms."

Outfall 005: "Stormwater runoff from construction of landfill cells and from earth berms."

Outfall 006: "Landfill leachate, transfer station wastewater, truck wash, contaminated stormwater runoff, and sanitary wastewater."

(Stip. 26; J. Ex. 1.)

27. The NPDES Permit sets forth effluent limitations and monitoring requirements for each Outfall on pages 2-7. (Stip. 27; J. Ex. 1.)

28. The NPDES Permit contains in Part A, beginning on page 8, additional requirements, footnotes, and supplemental information. (Stip. 28; J. Ex. 1.)

29. Part A, Section III of the NPDES Permit contains requirements for self-monitoring, reporting, and recordkeeping. (Stip. 29; J. Ex. 1.)

30. Part A, Section III.D of the NPDES Permit contains specific toxic pollutant notification levels under 40 CFR 122.42(a). (Stip. 30; J. Ex. 1.)

31. Part C, Section III of the NPDS Permit addresses chemical additives. (Stip. 31; J. Ex. 1.)

32. Part C, Section IV of the NPDES Permit addresses requirements applicable to stormwater outfalls. (Stip. 32; J. Ex. 1.)

33. Part C, Section V of the NPDES Permit addresses requirements for landfill leachate discharge. (Stip. 33; J. Ex. 1.)

34. Part C, Section VI of the NPDES Permit addresses the United States Environmental Protection Agency's ("EPA's") analytical methods to test for radium-226 and radium-228. (Stip. 34; J. Ex. 1.)

Additional Findings of Fact

35. The narrative portion of the NPDES Permit application contained the following sections:

a. 1.0 Introduction, which included a brief description of the new landfill cells to be constructed pursuant to the solid waste permit, including the deposit of the relocated excavated waste therein, and noted that the proposed discharge would be from a proposed wastewater treatment plant primarily treating landfill leachate.

b. 2.0 Leachate Management, which generally described the process by which leachate would be generated in the newly constructed landfill cells, conveyed to leachate storage tanks and potentially to a treatment plant for treatment and discharge; identified pollutant analysis results from Seneca Landfill and leachate sampled from Piezometer 29 located within the existing waste at the Tri-County landfill site as predictive of leachate for purposes of the application; and utilized data from Seneca Landfill to estimate leachate generation.

c. 3.0 Other Sources of Flow to Outfall 006, identifying other proposed sources of flow to the treatment plant that will discharge to Outfall 006, including transfer station truck wash and sanitary wastewater.

d. 4.0 Proposed Treatment Plant, which estimated the flow from the proposed wastewater treatment plant.

e. 5.0 Stormwater, describing an existing NPDES permit for stormwater associated with the Tri-County Industries waste transfer station.

(J. Ex. 2.)

36. The application contained a description of the business or operations resulting in discharges:

Tri-County Landfill, Inc. is proposing to re-open the existing historic landfill to relocate the historic waste and accept new waste for disposal into a newly constructed lined municipal solid waste landfill expansion. Currently, the site has a waste-hauling operation and transfer station facility owned and operated by Tri-

County Landfill Industries, Inc. (parent company of Tri-County Landfill, Inc.) These operations will continue to run in addition to the proposed landfill facility operations. The existing NPDES permit (PAR808328) is held by Tri-County Industries, Inc. for the stormwater discharges associated with runoff of the hauling and transfer station property (Outfalls 001, 002, 003). See Project Narrative for further details.

(J. Ex. 2.) 37. The application states:

[A]s the Tri-County Landfill is not currently operating and does not have a leachate treatment facility constructed yet, the pollutant analysis for effluent from Outfall 006 is not available. Therefore, the pollutant analysis results from Seneca Landfill's most recent NPDES renewal have been included in this application as comparable information from an existing similar facility. Seneca Landfill currently operates a Centralized Waste Treatment Facility, however at the time of their NPDES renewal sampling they did not accept any additional outside liquid waste streams. As indicated in the pollutant summary tables, the projected results are based on discharge from an Outfall comprised of effluent from a leachate treatment facility that will be comparable to what is proposed for TCL [Tri-County Landfill].

(J. Ex. 2.)

38. An NPDES permit establishes effluent limitations and monitoring requirements for a point source discharge to a receiving stream. (Notes of Testimony Transcript Page No. ("T.") 539.)

39. The NPDES permit does not authorize construction of the treatment plant. A separate water quality permit is required to authorize construction of the treatment plant. (T. 30, 112, 160-61.)

40. The receiving stream for the discharges, a UNT to Black Run, is designated a Cold Water Fishery under Title 25, Chapter 93 of the Pennsylvania Code. (T. 62, 541; J. Ex. 3.) There are no other existing uses. (T. 544.) Therefore, the Department uses the stream's designated uses to establish effluent limitations in the permit. (T. 545.)

41. In addition to the designated use of Cold Water Fishery, the Department also applies the Chapter 93 statewide list of designated uses to all surface waters, which are aquatic life, water supply, and recreation. (T. 546-47.)

42. Black Run (including the UNT) is listed as "impaired" on the Section 303(d) list, which is a list maintained pursuant to Section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d). (T. 74, 589; J. Ex. 3.) A stream is listed as impaired if it is not meeting its designated uses. (T. 541-42.) In other words, the current water quality of the UNT is listed as not being sufficient to support a cold water fishery.

43. The Department has not prepared a Total Maximum Daily Load ("TMDL") for the UNT. (T. 547.)

44. In accordance with the Department's Standard Operating Procedure entitled "Establishing Effluent Limitations for Individual Industrial Permits," the effluent limitations, monitoring requirements, and benchmark values from NPDES PAG-03 General Permit for industrial stormwater Appendix C were placed in Tri-County's permit for Outfalls 004 and 005, which will discharge stormwater runoff that has not come into contact with any waste. (T. 309, 595; J. Ex. 3.)

45. Any stormwater that comes in contact with waste is conveyed by different controls to the leachate management system, including leachate storage tanks, and will not be conveyed to the sedimentation control basin, which outflows to Outfalls 004 and 005. (T. 28, 309, 316-17.)

46. With respect to the proposed discharge of treated wastewater at Outfall 006, TriCounty was required to submit analytical data for pollutants set forth in Pollutant Groups 1 through 6. (T. 548.) The Department's NPDES permit application instructions contain a standard set of pollutant groups that must be sampled for depending on the type of process wastewater proposed to be discharged by a facility. (T. 109.) Pollutant Groups 1 through 6 contain parameters representative of the general pollutants of concern that are expected to be contained in the leachate for municipal waste landfills. (T. 598-99, 602.) Applicants for a new discharge, like this one, are allowed to use analytical results of samples collected from similar facilities. (T. 548.)

47. Tri-County submitted the analytical results of samples of leachate collected in 1994 and 2000 from Piezometer 29 at Tri-County Landfill, and samples of leachate generated at Seneca Landfill collected from the pump house before treatment. (T. 180-81, 548, 599-600.) These analytical results were used to populate the tables for Pollutant Groups 1 through 6 in the NPDES permit application, which the Department used to establish the effluent limitations in the permit. (T. 602.)

48. Seneca Landfill is a geographically similar landfill owned by the same operator as Tri-County accepting the same non-hazardous municipal waste streams, and the samples from Piezometer 29 represented on-site data at the Tri-County site. (T. 548-49.) Justin Dickey, the Department's Program Manager for the Clean Water Program, Northwest Regional Office, credibly concluded that these analytical results are "as good as it can get" in terms of estimating the potential influent to the treatment plant at Tri-County for permitting purposes. (T. 548-49, 602.)

49. After considering influent information, the Department determined whether the discharge at Outfall 006 is subject to any technology-based limitations. (T. 172-73, 549.)

50. The Department determined that the federal effluent limitation guidelines (ELGs) found in 40 CFR Part 445 Subpart B - ELGs for RCRA Subtitle D Non-Hazardous Waste Landfills applied, and imposed applicable effluent standards and monitoring requirements for that category. (T. 549-50; J. Ex. 3; Department Exhibit No. ("DEP Ex.") 21.) This effluent limitation guideline is applicable because Tri-County Landfill is a non-hazardous municipal waste landfill. (T. 550, 599.)

51. The Department also applied technology-based effluent limitations drawn from the Department's regulations at Chapter 93. (T. 550-51; DEP Ex. 22.) These limits were based on the type of industrial waste discharge as well as the fact that chlorine disinfection would be used to treat the sanitary component of the wastewater. (T. 551.)

52. The Department next evaluated whether the discharge to Outfall 006 was subject to water quality-based effluent limitations (WQBELs). (T. 551.) WQBELs are site specific limitation required to protect instream water quality. (T. 551.) There are three models the Department uses to establish WQBELs. (T. 551-54.) The models are conservative in that they use conservative inputs including a low Q7-10 flow for the stream and a conservative design discharge rate. (T. 171-72, 558.)

53. Q7-10 flow is defined as "[t]he actual or estimated lowest 7 consecutive-day average flow that occurs once in 10 years for a stream with unregulated flow, or the estimated minimum flow for a stream with regulated flow." 25 Pa. Code § 96.1.

54. The Department used the WQM 7.0 Version 1 water quality model to determine appropriate limits for CBOD5, NH3-N, and dissolved oxygen. (T. 551-52.) The Department evaluated whether WQBELs were required for the discharge at Outfall 006 due to the potential to contain total residual chlorine (TRC) based on the potential use of chlorine for treatment. The Department included limitations for these parameters based to protect the receiving stream. (T. 552, 554-55; J. Ex. 3; DEP Ex. 23.)

55. The Department then utilized its Toxics Management Spreadsheet (TMS) to determine which pollutants have a reasonable potential to exceed instream water quality criteria and to determine WQBELs for discharges of toxic pollutants. (T. 552.) The analytical data for Pollutant Groups 1 through 6, as well as background information on the stream such as pH, hardness, stream flow, and the proposed rate of the discharge contained in the permit application, were entered into the spreadsheet. (T. 552-53.)

56. The TMS recommended effluent limitations for total aluminum, total antimony, total arsenic, total barium, total boron, total cadmium, total chromium (III), total cobalt, total copper, free available cyanide, dissolved iron, total iron, total lead, total manganese, total nickel, total phenols (phenolics), total selenium, total thallium, total zinc, benzene, 1,2-dichoroethane, methylene chloride, vinyl chloride, bis(2-ethylhexyl)phthalate, naphthalene, phenanthrene, alphaendosulfan, and color. The TMS recommended monitoring for ethylbenzene and toluene. (J. Ex. 3.)

57. The Department ran a third model because the application suggested the use of chlorine disinfection for the sanitary waste. (T. 554.) The model determined the need for a water quality-based limit more stringent than the technology-based limit for residual chlorine. (T. 55455; DEP Ex. 23.)

58. The Department's models also used the necessary instream water quality criteria needed to protect and maintain the uses of the receiving stream based on the requirements of Chapter 93. (T. 556.)

59. The Department imposes the more stringent criteria for a pollutant that is the subject of both a technology based effluent limitation and water quality-based effluent limitation. (T. 556.)

60. The Department imposed a best professional judgment limitation for total nitrogen in the permit in accordance with its Standard Operation Procedure entitled "Establishing Effluent Limitations for Individual Industrial Permits." (J. Ex. 3.)

61. The Department considered the Cold Water Fisheries criteria and the statewide uses and developed effluent limitations that are protective of those uses for the UNT to Black Run. (T. 544, 556, 557, 559.)

62. The limitations and monitoring requirements established by the Department reflect the most stringent limitations among technology, water quality, and best professional judgment. (556, 559; J. Ex. 3.)

63. In 2016, the Department published a study assessing potential exposure and impacts from TENORM associated with oil and gas operations in Pennsylvania (the "TENORM Study"). (DEP Ex. 46.)

64. TENORM is Technologically Enhanced NORM, which is Naturally Occurring Radioactive Material. (T. 499-500.)

65. NORM in nature is in equilibrium and TENORM is when the equilibrium is broken. (T. 500.)

66. A portion of the TENORM Study assessed the TENORM associated with oil and gas waste being accepted by landfills by sampling the leachate at all 51 landfills in Pennsylvania. (T. 473, 497; DEP Ex. 46.)

67. The TENORM Study concluded that there was not a measurable difference in average radiation concentration in leachate from landfills accepting TENORM oil and gas waste and landfills not accepting TENORM oil and gas waste. (T. 497, 499.)

68. Tri-County's landfill is permitted to accept a small amount of solid oil and gas waste. (T. 431, 498.)

69. In response to public comments, the Department added a quarterly monitoring requirement to Tri-County's NPDES permit for Outfall 006 for the parameters radium-226 and radium-228, even though the Department does not expect radium to be a pollutant of concern for a non-hazardous municipal waste landfill. (T. 563-64, 569, 601, 602.)

70. However, the NPDES permit mistakenly lists a monitoring requirement for radium-226 twice, instead of including radium-228, which the Department refers to as a typo. (T. 569, 573; J. Ex. 1.)

71. Among radioactive parameters, only radium (including radium-226 and radium-228) is soluble in water and will leach out of soil when water passes through it. (T. 500-01, 505, 510-11.)

72. Radioactive parameters such as thorium and uranium are not soluble in water. (T. 511, 512.)

73. There is no federal or state technology-based effluent limitation for radium-226 or radium-228 in the non-hazardous waste landfill category. (T. 578, 604.)

74. There is no indication that Tri-County's planned acceptance of oil and gas waste at its landfill will have a statistically significant impact on the concentration of radium-226 and radium-228 in the landfill's leachate. (T. 495, 498, 501.)

75. Any discharge authorized under the NPDES permit will not pose a threat to the UNT to Black Run, aquatic life, or human life in terms of radiation due to Tri-County accepting some amount of oil and gas waste for disposal. (T. 496, 506-07, 516.)

76. The EPA does not review most NPDES permit applications or permits issued by the Department. However, the Department and EPA have developed a list of permit types for which EPA has not waived review, and for which a copy of the application must be provided to EPA. (T. 22-23, 561.) That list is entitled "Types of PADEP-Issued Non-Mining NPDES Permits Not Eligible for EPA Permit Review Waiver (Non-Waived Permits), Revised December 2019." (Appellants' Exhibit No. ("App. Ex.") 61.)

77. Item 8 on the first page of the list relates to "facilities that accept or are proposing to accept and treat oil and gas resource extraction wastewater" as not being waived. (T. 561-62; App. Ex. 61.) Item 8 is not applicable because the Tri-County wastewater treatment plant is not proposing to accept oil and gas resource extraction wastewaters. (T. 24-25, 562.)

78. The Department did not submit Tri-County's permit application to EPA for review. (T. 24.)

79. The Department conducted a review of the compliance of Tri-County and its related companies and credibly determined there were no open violations and the compliance history demonstrated an ability to comply with the NPDES permit requirements and all other permits. (T. 576.)

80. There has only been one notice of violation issued to Tri-County or any of its affiliated companies since the hearing on the solid waste permit held in April 2023, and the violations noted therein are being addressed to the Department's satisfaction. (T. 356.)

DISCUSSION

Liberty Township and CEASRA, Inc. (the "Appellants") have appealed the Department of Environmental Protection's (the "Department's") issuance of NPDES Permit No. PA0263664 to Tri-County Landfill, Inc. ("Tri-County"). The same Appellants previously appealed a 2020 major modification to Tri-County's solid waste management permit that authorized the formerly dormant municipal waste landfill to once again accept waste and to operate on an approximately 99-acre area. On January 8, 2024, we issued an Adjudication dismissing the Appellants' appeal. Liberty Twp. v. DEP, EHB Docket No. 2021-007-L (Adjudication, Jan. 8, 2024), appeal pending, Cmwlth. Ct. Docket No. 107 C.D. 2024. The NPDES permit currently under appeal sets the terms and conditions for discharges associated with the construction and operation of that landfill.

The Board reviews Department actions de novo, meaning the Board "decide[s] the case anew on the record developed before" it. Borough of St. Clair v. DEP, 2016 EHB 299, 318 (citing Dirian v. DEP, 2013 EHB 224, 232; O'Reilly v. DEP, 2001 EHB 19, 32; Warren Sand & Gravel Co. v. Dep't of Envtl. Res., 341 A.2d 556 (Pa. Cmwlth. 1975)). In a third-party appeal such as this one, the Appellants bear the burden of proof. 25 Pa. Code § 1021.122(c)(2). The Appellants must show by a preponderance of the evidence that the Department acted unreasonably or contrary to the law, that its decision is not supported by the facts, or that the decision is inconsistent with the Department's obligations under the Pennsylvania Constitution. Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, 236, aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016); Friends of Lackawanna v. DEP, 2017 EHB 1123, 1156.

The Appellants phrase many of their arguments as alleged errors in the permit application process. However, this Board reviews permits, not permit applications. Snyder v. DEP, 2016 EHB 705, 706. It is not our responsibility to re-review permit applications. The reason a permit may be defective might be traced back to a deficient permit application, but our focus remains on the permit, not the permit application.

The goal of Board proceedings is not to go back through the entire course of permit application procedures to pick out errors that may have been made along the way. Indeed, the very purpose of a deliberative, iterative permit review process is to correct errors and ensure that, in the end, everything has been done correctly. The Board's objective is to determine whether any action needs to be taken regarding the final permit. There will be errors in virtually any permit application review of even modest complexity. If the errors have been corrected, there is no need to dwell upon them. Errors may have been rendered immaterial or moot by subsequent events or even the passage of time. A party who would challenge a permit must show us that errors committed during the application process have some continuing relevance.

O'Reilly v. DEP, 2001 EHB 19, 51. The Board "do[es] not so much review the Department's review process leading up to a final decision as the final decision itself." Friends of Lackawanna, supra, 2017 EHB at 1156. In Stedge v. DEP, 2015 EHB 577, we said,

The Appellants argue that Chesapeake's application did not adequately demonstrate that all of the setbacks were satisfied. This argument is emblematic of the Appellants' approach to this case in general: they criticize the application for not showing setbacks but then fail to show that any setbacks have in fact been violated. This is just the sort of criticism directed toward the permit application as opposed to the permit itself that we have repeatedly said will rarely justify correction of the Department's action on our part, O'Reilly v. DEP, 2001 EHB at 51, and part of the laundry list of potential but unsubstantiated problems that also will not support a correction on our part, Shuey v. DEP, 2005 EHB at 712.

Id. at 612. In short, we ask whether there is anything wrong with the permit, not the application. As a practical matter in this case, however, all of the Appellants' various challenges to TriCounty's permit application, while inelegantly phrased, are the functional equivalent of challenges to the permit itself and we will deal with them accordingly. For example, the Appellants allege the permit application was defective because it did not include baseline data regarding the water quality of the receiving stream. We will instead determine whether the permit is defective because it is not based on baseline data.

The NPDES Permit Terms

Tri-County's NPDES permit authorizes discharges from three outfalls: Outfalls 004, 005, and 006. Outfalls 004 and 005 will discharge uncontaminated stormwater runoff from construction of landfill cells and earth berms. Outfall 006 will discharge treated landfill leachate, transfer station wastewater, truck wash, contaminated stormwater runoff, and sanitary wastewater from a future wastewater treatment plant.¹ The receiving stream for the discharges is an unnamed tributary (UNT) to Black Run. The designated use for the UNT to Black Run is Cold Water Fishes under Title 25, Chapter 93 of the Pennsylvania Code. It is not designated as a High Quality or Exceptional Value water. There is no other existing use. Of course, the statewide uses apply to every stream, including the UNT.

1 Tri-County has not obtained a water quality management (Part II) permit for the construction of the plant to treat the wastewater before it is discharged from Outfall 006. Effluent limits are established in an NPDES permit, while treatment methods to meet those effluent limits are contained in a separate water quality management or Part II permit. See City of Allentown v. DEP, 2017 EHB 908, 917 n.3 (explaining difference between NPDES and water quality management permits); University Area Joint Auth. v. DEP, 2013 EHB 1, 1-2 (same).

The Appellants argue that the terms of Tri-County's NPDES permit are "improper, unlawful and inadequate." When it comes to permit terms and conditions, effluent limits are at the heart of any NPDES permit, yet the Appellants have nothing negative to say about the actual limits in Tri-County's permit. The Appellants did not present any evidence that there is anything wrong with any of the effluent limits in the permit. The Appellants' only expert witness, Dr. John Stolz, acknowledged that he had no criticisms to offer regarding any of the effluent limits. (T. 433.) He noted that a quick review while he was on the witness stand confirmed that, with the exception of pH (which he did not fault), most of the limits "fall within drinking water parameters, or the EPA guidelines." (T. 433.) The Appellants have also not challenged any of the other specific terms or conditions of the permit. Indeed, the representative of CEASRA who testified at the hearing stated that CEASRA has not made a specific objection to any of the effluent limits in the permit. (T. 290-91.) Instead, they mount a series of generalized attacks, all of which lack any legal and/or factual support.

Instead of offering anything specific, the Appellants say things like the discharge will "pollute" the stream. Unfortunately, their briefs are replete with inaccurate and unhelpful hyperbole, such as a claim that the permit authorizes "essentially unlimited discharges of radioactive, toxic, and hazardous waste." (App. Brief at 53.) The Appellants, and unfortunately, their expert Dr. Stolz (T. 425-26), mistakenly assume that any discharge containing any pollutants into any stream will necessarily worsen the water quality of the stream. That is not necessarily the case. For example, query whether a concentration-based effluent limit could actually lower the pre-existing concentration of a pollutant in the stream, especially where, as here (T. 557), the flow of the discharge will dramatically increase the base flow of the stream.

More to the point, the Appellants' position is legally unsound. The law does not prohibit the addition of any pollutants to any stream. Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, 243 ("The point of the environmental laws is not to prohibit the discharge of all pollutants, but to intelligently regulate such activity so that regulatory standards are met, environmental incursions are minimized, and any remaining harms are justified."), aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016). Rather, for discharges that are not into special protection waters, the effluent limits in a permit must comply with (1) technology-based limits established in the regulations for the industry involved, and (2) water quality-based effluent limits designed to ensure that the discharge will not interfere with the stream's ability to meet its (a) designated and (b) existing uses. 25 Pa. Code § 93.4a; 25 Pa. Code § 96.4(b); 40 CFR §§ 125.1-125.3 (incorporated by 25 Pa. Code § 92a.3); Penn Coal Land, Inc. v. DEP, 2017 EHB 337, 350; Borough of Stockertown v. DEP, 2016 EHB 456, 461-62; Mun. Auth. of Union Twp. v. DEP, 2002 EHB 50, 52-53. The effluent limits must be protective of the stream's designated uses even if the stream is not currently meeting them. Penn Coal, 2017 EHB at 385. The Appellants have not shown or even attempted to show that Tri-County's discharge will be inconsistent with any of these regulatory requirements. There has been no showing that Tri-County's discharge will interfere with the stream's uses, which is the key inquiry.

Once again in general terms, the Appellants criticize the Department's characterization of the waste stream to be treated at Tri-County's treatment plant. The Department's first step in developing permit terms is to consider the influent that will be going into the plant for treatment. The goal is to characterize the influent waste stream to determine, using best professional judgment, what parameters should be covered by the permit. The Appellants assert that the Department did not have enough information regarding the influent to the treatment plant to formulate appropriate effluent limits. No expert testified to this, including Dr. John Stolz. Dr. Stolz, the Appellants' only expert witness, did not review the permit application (T. 437), so he was in no position to opine meaningfully on the investigation that was performed.

In fact, the Department did a thorough characterization of the waste stream expected to be treated at the future treatment plant using information that was actually superior to the estimates and information that is typically relied upon when dealing with discharges that do not yet exist, such as pilot studies and engineering literature. (T. 548.) Here, the treatment plant will be treating leachate and other water that has come into contact with waste. The Department was able to use a monitoring well that measured groundwater at the site, and samples of leachate generated at the Seneca Landfill collected from the pump house before treatment. (T. 180-81, 548, 599-600.) Seneca Landfill is a relatively close landfill owned by the same operator with similar expected waste streams. We credit the expert opinion of Justin Dickey, the Department's Regional Clean Water Program Manager, that, for purposes of characterizing the reasonable potential constituents of the future waste stream, the information used here was "about as good as it can get." (T. 54849.) The Department had enough data regarding the influent anticipated to exercise informed professional judgment in formulating the effluent limits.²

2 On this and on other issues in this appeal, it is worth remembering that permit terms and conditions are not written in stone. The Department has the right to amend the permit when necessary to protect the environment if new information comes to light. 25 Pa. Code § 92a.72 (incorporating 40 CFR § 122.62).

The specific concern of the Appellants in this regard seems to be that, in part because of the allegedly inadequate investigation, the Department left out limits for some parameters that they contend should be in the permit. The Appellants list chemicals found in the groundwater and untreated leachate from the Seneca Landfill that are not included in the permit. Once again, the Appellants presented no expert testimony suggesting this is worthy of our concern. We do not know whether the chemicals are likely to end up in the discharge, and if so, at problematic levels. We do not know anything about the chemicals, how much of them are present, or why the Appellants believe they "should have been included in the permit." We have not been given any insight on what constitutes reasonable limits based on professional judgment on the number and limits of parameters in the permit. We do not know if or why the constituents the Appellants say are missing pose a threat to the uses of the receiving waters.

The Department requires an applicant to submit analytical results for parameters identified in Pollutant Groups 1 through 6, which are then used to establish the effluent limitations. (T. 602.) The parameters in these pollutant groups are indicative of the pollutants of concern and are evaluated in the Department's review of the application. (T. 598-99.) These analytical results were used to populate the tables for Pollutant Groups 1 through 6 in the NPDES permit application, which the Department used to establish the effluent limitations. (T. 602; J. Ex. 2.) The Appellants did not present any technical evidence or expert testimony calling into question this process or the results thereof. The Appellants contend that the Department should also consider unidentified "trade secret or proprietary chemicals" they allege are used by gas drillers and speculate may be in landfill leachate since the Tri-County Landfill is permitted under its solid waste permit to accept a small amount of solid waste from oil and gas drilling. But the Appellants fail to point to any regulation requiring analytical data for such alleged unidentified chemicals to set effluent limits in Tri-County's permit, and they fail to explain how the presence of any such unidentified chemicals would impact the establishment of effluent limits for the plethora of pollutants listed in Pollutant Groups 1 through 6, how any such chemicals have the reasonable potential to find their way into the discharge from the treatment plant, or how they could threaten the uses of the receiving stream. The Appellants have not met their burden of proving any additional parameters should have been included in the permit.

The Department's next step in formulating effluent limits was to apply the regulatory technology-based limits established in the federal and state regulations. The Department determined that the federal effluent limitations and guidelines (ELGs) found in 40 CFR Part 445 Subpart B - ELGs for RCRA Subtitle D Non-Hazardous Waste Landfills - applied, and imposed the applicable effluent standards and monitoring requirements for that category. This effluent limitation guideline is applicable because the Tri-County Landfill is a non-hazardous municipal waste landfill. Other technology based effluent limitations the Department considered are drawn from the Department's regulations in 25 Pa. Code Chapters 92a and 95. These limits were based on the type of industrial waste discharge as well as the fact that chlorine disinfection will be used to treat the sanitary component of the wastewater. The Appellants have not questioned the permit limits to the extent they are derived from the technology-based regulations.

The Department next evaluated whether the discharge from Outfall 006 was subject to water quality-based effluent limitations (WQBELs). WQBELs are site specific limitations required to protect instream water quality. There are three models the Department used to establish WQBELs. The models are conservative as the Department uses conservative inputs such as a low Q7-10 flow for the stream and a conservative design discharge rate. Because the unnamed tributary to Black Run, the receiving stream for Outfall 006, is designated a Cold Water Fishery, the Department included in the models the criteria and uses for Cold Water Fisheries identified at 25 Pa. Code § 93.4 to ensure the resulting effluent limitations are protective of those uses.

The Department first used the WQM 7.0 Version 1 water quality model to determine appropriate limits for CBOD5, NH3-N, and dissolved oxygen. The Department evaluated whether WQBELs were required for the discharge at Outfall 006 due to the potential to contain total residual chlorine based on the potential use of chlorine for treatment. The Department included limitations for various parameters based upon these evaluations to protect the receiving stream.

The Department then utilized its Toxics Management Spreadsheet (TMS) to determine which pollutants have a reasonable potential to exceed instream water quality criteria and to determine WQBELs for discharges of toxic pollutants. The analytical data for Pollutant Groups 1 through 6, as well as background information on the stream such as pH, hardness, stream flow, and the proposed rate of the discharge contained in the permit application are entered into the spreadsheet. The model also uses the instream water quality criteria necessary to protect and maintain the uses of the receiving stream based on the requirements of Chapter 93. The TMS calculated effluent limitations for certain parameters, specifically: total aluminum, total antimony, total arsenic, total barium, total boron, total cadmium, total chromium (III), total cobalt, total copper, free available cyanide, dissolved iron, total iron, total lead, total manganese, total nickel, total phenols (phenolics), total selenium, total thallium, total zinc, benzene, 1,2-dichloroethane, methylene chloride, vinyl chloride, bis(2-ethylhexyl)phthalate, naphthalene, phenanthrene, alphaendosulfan, and color. The TMS recommended monitoring for ethylbenzene and toluene.

The Department ran a third model because the application suggested the use of chlorine disinfection for the sanitary waste. The model determines the need for a water quality-based limit more stringent than the technology-based limit for residual chlorine. The Department also imposed a best professional judgment limitation for total nitrogen in the permit in accordance with the Department's standard operating procedure entitled "Establishing Effluent Limitations for Individual Industrial Permits." (J. Ex. 3.)

Through use of these procedures, the Department ensured that the effluent would protect the uses of the stream. We credit the testimony of the Department's expert, Justin Dickey, that the limits set forth in Tri-County's permit are consistent with applicable technology-based limits and will protect the uses of the stream.

The Appellants say the Department's modeling was "wholly off base" and "improper." Once again, they offered no expert testimony to back up this claim. In technical cases such as this, the Board is highly dependent on expert testimony. Brockway, supra, 2015 EHB at 238-39. Simply asserting baseless claims such as this without offering technical evidence is simply not enough to carry the Appellants' burden of proof. Id.

The Appellants' particular complaint appears to be that the modeling was deficient because no baseline water samples were taken to measure pre-existing pollutants in the receiving stream. The Appellants do not explain how or why baseline sampling would have influenced the terms of the permit. They do not point to anything in the law that requires such testing in this situation. The modeling ensured that the permitted discharge would not itself interfere with the designated use of the stream. There is no existing use that elevates protection above the stream's designated use, and the stream is not a High Quality or Exceptional Value stream.

With regard to the Appellants' concern that the discharge will "worsen the stream's impairment," there is no evidence of any potential "worsening" here. Although it is true that the UNT to Black Run is included on the list of impaired waters that the Department maintains pursuant to Section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d), it is well-established that the Clean Water Act did not create a categorical ban on discharges to impaired waters. Arkansas v. Oklahoma, 503 U.S. 91, 107 (1992). See also Friends of the Wild Swan, Inc. v. United States EPA, 74 Fed.Appx. 718 (9th Cir. 2003); In re Carlota Copper Co., 11 E.A.D. 692 (EAB 2004).

The Appellants are correct that a stream's inclusion on the impaired waters list triggers the state's obligation to prepare a Total Maximum Daily Load (TMDL) for the stream. A TMDL is a calculation of the amount of pollutant(s) that a water body can tolerate and still attain its designated use. Penn Coal Land, Inc. v. DEP, 2017 EHB 337, 343, 347. The Appellants complain that no TMDL has yet been established for the UNT of Black Run. They say no permit can be issued until a TMDL is established. That is incorrect. The Department is not required to refrain from issuing NPDES permits authorizing discharges into impaired waters where TMDLs are not yet available. See City of Taunton v. United States EPA, 895 F.3d 120, 139-40 (1st Cir. 2018); Upper Blackstone Water Pollution Abatement Dist. v. United States EPA, 690 F.3d 9, 26 (1st Cir. 2012); In re City of Lowell, 18 E.A.D. 115, 153 (EAB 2020); In re City of Ruidoso Downs, 17 E.A.D. 697, 733 (EAB 2019), pet. for review denied sub nom., Rio Hondo Land & Cattle Co. v. United States EPA, 995 F.3d 1124 (10th Cir. 2021); Carlotta Copper, supra.

In the absence of a TMDL, the Appellants have not pointed us to anything in the law that requires the Department to further adjust effluent limits to account for the impaired status of the receiving stream so long as the limits are protective of the stream's uses. We are not independently aware of any such requirement. To the extent the Appellants believe the Department should move faster in preparing a TMDL for Black Run, the appropriate incentive is not to withhold issuance of Tri-County's permit.³ Issuance of the permit does not prevent it from being revised in the future if necessary to comport with any future TMDL. Penn Coal, supra.

3 The court in Friends of the Wild Swan, Inc. v. United States EPA, 130 F.Supp.2d 1199 (D.Mont. 2000), amended by 130 F.Supp.2d. 1204 (D. Mont. 2000), aff'd in part, rev'd in part, and remanded, 74 Fed.Appx. 718 (9th Cir. 2003), enjoined the state from issuing certain permits into impaired waters until the state developed its TMDLs. It is not clear from subsequent developments in the case the extent to which this injunction was followed. This Board does not have equitable powers, but even if we did, we question whether such a drastic measure would be the most prudent way to spur the state on to quicker development of TMDLs. This appeal does not provide an appropriate occasion for analyzing whether the Department is moving forward with appropriate speed in developing TMDLs.

The Appellants go on to argue that the Department "failed to do its job" by not identifying the source of impairment for the UNT to Black Run and "causing its restoration." (E.g. App. Brief at 50.) Therefore, presumably, the Department erred by issuing the Tri-County permit pending such restoration. It is true that the cause of the impairment has not been identified. However, if the Department is not precluded from issuing an NPDES permit for a discharge into impaired waters in any case, it necessarily follows that it is not precluded from issuing an NPDES permit for a discharge into impaired waters until the source of the impairment is uncovered and the waters are restored. The effect of the Appellants' extreme position would be to postpone indefinitely all further development with discharges in every impaired watershed in the Commonwealth. Such was never the intent of the Clean Water Act or the Commonwealth's implementing regulations. Arkansas v. Oklahoma, 503 U.S. at 108. Indeed, the purpose of TMDLs is not to halt all development and discharges associated therewith, it is to provide an equitable framework for managing permitting going forward in such a way that the stream is eventually restored. Permitting of discharges into impaired waters continues; it just needs to be consistent with the TMDL.

Radiation

One of the more particular focuses of the Appellants' opposition to the permit concerns radiation. They say the NPDES permit allows "the unlimited discharge of TENORM" (Technologically Enhanced Naturally Occurring Radioactive Material) or "radioactive waste" that will negatively impact the public and the environment. (App. Brief at 11, 53.) The Appellants believe there will be radiation in the treated leachate that is discharged from Outfall 006 because of Tri-County being permitted to accept some amount of oil and gas waste for disposal. The Appellants say oil and gas waste contains radiation, and therefore, the leachate that precipitates out of the waste disposed of at the landfill will also contain radiation. The permit contains monitoring requirements for radium, which the Department added in response to public comments, but the Appellants do not believe this is enough. They argue the permit should have defined effluent limits for radium, as well as a host of other radioactive parameters.

In support of their arguments on radiation, the Appellants rely on the testimony of their expert, Dr. Stolz. Tri-County and the Department rely on the testimony of Tri-County's well-qualified expert, Andrew Lombardo. Weighing competing expert testimony is one of the Board's core functions. Montgomery Twp. Friends of Family Farms v. DEP, EHB Docket No. 2020-082-L, slip op. at 19 (Adjudication, Nov. 15, 2024). See also DEP v. EQT, 2017 EHB 439, 497, aff'd, 193 A.3d 1137 (Pa. Cmwlth. 2018). The weight given an expert's opinion depends upon factors such as the expert's qualifications, presentation and demeanor, preparation, knowledge of the field in general and the facts and circumstances of the case in particular, and the quality of the expert's data and other sources. Crum Creek Neighbors v. DEP, 2009 EHB 548, 561. "We also look to the opinion itself to assess the extent to which it is coherent, cohesive, objective, persuasive, and well grounded in the relevant facts of the case." EQT, 2017 EHB at 497. "Resolution of evidentiary conflict, witness credibility, and evidentiary weight are matters committed to the discretion of the Board." EQT Prod. Co. v. Dep't of Envtl. Prot., 193 A.3d 1137, 1149 (Pa. Cmwlth. 2018) (citing Kiskadden v. Dep't of Envtl. Prot., 149 A.3d 380, 387 (Pa. Cmwlth. 2016)).

Both in terms of relevant experience, and in the presentation and explanation of his opinions, Andrew Lombardo was undoubtedly the more credible and convincing witness. Mr. Lombardo has spent nearly his entire career working in the field of health physics, which is the management and evaluation of risk from radioactive material and the recommendation of protective actions to guard against that radioactive material. (T. 452.) He has extensive experience assessing occupational and public radiation exposure from air and water sources, decommissioning nuclear facilities, and remediating sites contaminated by radioactive material. He is a certified health physicist and holds a master's degree in the field. (T. 451, 474.) He has worked on numerous projects remediating landfills that had accepted radioactive waste, including landfills in Pennsylvania, and has performed hundreds of risk assessments for the handling, transportation, and disposal of radioactive material. (T. 461, 465-66, 475.) Mr. Lombardo also piloted the 2016 TENORM Study commissioned by the Department to assess impacts from radioactive material in unconventional oil and gas drilling operations. (T. 473; DEP Ex. 46.) Among other things, the TENORM Study sampled leachate at all 51 landfills in Pennsylvania and analyzed those samples for radioactive material, paying particular attention to a subset of nine of those landfills that accepted more oil and gas waste. Mr. Lombardo's experience is particularly relevant to assessing the radiation that might be contained in the leachate from a landfill like Tri-County, the radiation that might be contained in the post-treatment discharge under the NPDES permit, and the potential radiological risk, if any, of impacts to the receiving stream from the discharge.

The Appellants maintain their objection that Mr. Lombardo should have been disqualified from testifying in this case because he is employed by Perma Fix Environmental Services, Inc., which prepared the Department's TENORM Study. The Appellants rely on our decision in Carlisle Pike Self Storage v. DEP, 2022 EHB 214, wherein we disqualified a consulting firm from testifying against the Department on behalf of an appellant while the firm was simultaneously retained by the Department to work on the very project that was the subject of the appeal. We found that admitting testimony from these experts in the face of such a glaring conflict of interest would have impugned the integrity of the proceedings and tainted our adjudication of the case. Carlisle Pike has nothing in common with the case before us. An accurate analogy would be presented if the Appellants hired Mr. Lombardo as their expert while he was simultaneously providing services to the Department regarding Tri-County's NPDES permit. No such glaring conflict of interest exists here. There is no cause for disqualification.

The Appellants think it is unfair that Mr. Lombardo's firm benefitted financially at taxpayers' expense for performing the TENORM Study, and now can turn around and testify on behalf of Tri-County about its NPDES permit, using in part knowledge he gained from the TENORM Study. To the extent the Appellants cite this rather remote connection as impeachment of Mr. Lombardo as well as their other attempts at impeachment regarding his employment with Perma-Fix, we find the effort to have been wholly unsuccessful. The evidence in no way detracts from his credibility. We found him to be knowledgeable, straightforward, and honest, and we fully credit his opinions in this matter.

On the other hand, Dr. Stolz was not convincing or persuasive. While qualified to render opinions on radiation issues in this appeal, his background is in biology and his Ph.D. is in microbial ecology and evolution. (T. 390.) His work involving radiation has only been within the last few years (App. Ex. 60), and he has only studied the effects of radiation on microbes, not humans, mammals, or fish. (T. 392.) As mentioned above, a notable omission in the work Dr. Stolz did in this case is that he failed to perform the basic task of reviewing Tri-County's NPDES permit application. (T. 437-38, 441.) This means that Dr. Stolz did not review any of the information Tri-County submitted to the Department. He did not review the leachate sample from Seneca Landfill or the groundwater monitoring well sample from the Tri-County site, or any of Tri-County's work that helped form the basis for the permit that he freely criticized. This not only undermines Dr. Stolz's credibility, but it also raises questions about his motivation in testifying. Given the tenor of Dr. Stolz's testimony, we were left with the impression that he was not truly an impartial witness. He did not present his findings as a disinterested expert who was retained to study an issue and relate those findings to the Board within his best professional judgment, whatever the outcome of that study might be. Like in the prior hearing on the solid waste permit, he maintained that oil and gas waste should never be accepted for disposal at a municipal waste landfill, even while acknowledging that there exist effective treatment methods for removing radioactive constituents from wastewater. (T. 446.) All of his opinions in this matter seem to follow from this conviction.

Dr. Stolz also seemed to lack a firm factual understanding of the landfill and the treatment of leachate. For instance, he appeared to believe that the landfill would be accepting liquid wastewater from oil and gas operations, such as produced water (T. 396-401, 430), even though the solid waste permit limits Tri-County to accepting only solid waste from oil and gas operations. See Liberty Twp., supra, slip op. at 33 (¶ 185), 86. Overall, many of Dr. Stolz's opinions were conclusory and not well-supported. His final opinions were equivocal. He testified that the discharge of treated leachate under the terms of the permit could increase radioactivity in the UNT to Black Run and could result in higher conductivity (T. 427), but there was no opinion that it was likely to happen or any data or evidence to support that claim, even if he had made it. Nevertheless, in the interest of a complete record, we will address the Appellants' arguments and Dr. Stolz's opinions in support thereof.

The Appellants critique the radium monitoring requirements in the permit because they merely require quarterly monitoring and reporting of the concentration of radium in the discharge without imposing any mass or concentrations limits on the radium contained in the effluent. Initially, to put the Appellants' radiation concerns into context, the landfill is only permitted to accept at maximum two percent of its waste as oil and gas waste. Liberty Twp., supra, at 87. Much like their more general attacks on the permit, the Appellants have not suggested anywhere in their briefs what any reasonable mass or concentration limits on radium should be, let alone justified with any evidence the imposition of a certain limit. They have not correlated any specific amount of radium to any specific or even generalized harm to the UNT to Black Run, human health, or the greater environment. There is no federal or state technology-based effluent limitation for radium for non-hazardous waste landfills, and the Appellants have not pointed us to any applicable water quality criteria for radium-226 or radium-228. (T. 578, 604.) See 25 Pa. Code Chapter 93.

Dr. Stolz testified about samples he collected at a treatment plant accepting leachate from another landfill, located in Westmoreland County, which received oil and gas waste. He said he found a statistically significant increase in radium-226 in sediment samples taken downstream of the treatment plant compared with sediment samples taken upstream of the treatment plant. (T. 410.) To the extent the Appellants rely on Dr. Stolz's work to support their contention that the permit should contain effluent limits for radium, there is not at all enough information to support this as being a relevant comparison for purposes of evaluating Tri-County's NPDES permit, or to justify any changes to the permit. We do not know what kinds of waste streams were accepted at the Westmoreland County landfill, what amount of oil and gas waste was accepted, and what kind of treatment was employed at the treatment plant, nor anything about the waters receiving the plant's discharge. Even if it were a relevant comparison, Mr. Lombardo reviewed Dr. Stolz's study and noted that the study had very limited sample results, and all of the downstream samples were within the range of background levels of radium in Pennsylvania of 0.5 to 2.0 picocuries per gram. (T. 507-08.) Although Dr. Stolz did not establish background in his study, even assuming that background readings were on the low end of 0.5 picocuries per gram, the exempt limit for soils is 5.0 picocuries per gram above background, and all of Dr. Stolz's samples were below 2.0 picocuries per gram. (T. 508-09.)

Dr. Stolz also looked at the TENORM Study and focused on a landfill he believed to be the Seneca Landfill, which is owned by the same operator as Tri-County.⁴ He looked at two tables with sample results of leachate influent and effluent from a group of landfills with on-site treatment plants. He noted that the values for some radioactive parameters for Seneca Landfill were higher for the effluent than the influent, and he opined that it showed that the radiation was being "concentrated" by the leachate treatment process. (T. 407-09, 449.) However, Mr. Lombardo, who designed and oversaw the TENORM Study, credibly testified that the influent and effluent samples were not correlated, meaning the sampled influent was not tracked through the treatment plant and then resampled as effluent upon completing the treatment process; the samples were taken at separate times. (T. 502.) In fact, this is clearly stated in the study itself: "The influent and effluent samples from the same facility do not represent the same leachate at different times in treatment." (DEP Ex. 46 (at 5-1).) We find it concerning that Dr. Stolz, either intentionally or through oversight, would offer the opinion that radiation is being "concentrated" through the leachate treatment process when the study clearly dispels that notion. Even putting aside that Dr. Stolz's opinion is factually incorrect, we again know nothing of the treatment process at the Seneca Landfill. Dr. Stolz relayed an anecdote about an unnamed company in Ohio allegedly making deicer out of conventional oil waste brine that supposedly increased the concentration of radium-226 in its process (T. 408), but even if true, there is absolutely nothing to suggest that creating a deicer product is in any way analogous to treating landfill leachate, or is a relevant comparison for purposes of Tri-County's NPDES permit. This conclusion drawn by Dr. Stolz based on incomplete and disparate information is another reason why we cannot credit his opinions in this matter.

4 The TENORM Study was blind (T. 487-88) and did not identify the names of any landfills, but the Appellants asked Dr. Stolz, without objection, if Seneca Landfill is referred to as Landfill 4 in the study and he agreed. (T. 395.)

Mr. Lombardo explained why, in the TENORM Study, there was not a measurable difference in radiation in the leachate between landfills accepting oil and gas waste and those that did not. Uranium, thorium, and radium are already naturally present in the environment, and soils and rocks have various existing concentrations of radium and thorium. Therefore, every landfill will have a certain baseline concentration of radiation that is in the leachate, just from the radiation that leaches out of the soil and rocks. (T. 497-99.) The TENORM Study showed that there was not an increase in radium due to the onset of oil and gas waste being disposed of at landfills. (T. 499.)

The Appellants argue, in proposed findings of fact in their brief, that Tri-County was required to provide sampling in its permit application for the Pollutant Group 7 parameters-gross alpha, total beta, strontium, uranium, and osmotic pressure-because the application seems to require that information for "any facility that has received oil and gas wastewaters within the past three years." (App. Ex. 4 (at AEX000842).) However, it must be emphasized that Tri-County's wastewater treatment plant is not receiving oil and gas wastewaters. (T. 562.) It is receiving landfill leachate from a municipal waste landfill. The Appellants' repeated insistence that the landfill itself or the landfill's wastewater treatment plant will accept liquid oil and gas wastewater is simply incorrect. (T. 24-25, 562.)

Nevertheless, they contend the permit should include effluent limits for the Pollutant Group 7 parameters. Along the same lines, the Appellants say that the permit should also include the radioactive parameters that are identified in the Department's TENORM Study, namely K-40 (potassium), uranium-238, and thorium-232. The Appellants rely on Dr. Stolz, who testified that he believed the NPDES permit should include limits for K-40 (potassium), uranium, thorium, and radon, among others. (T. 406-07, 413-14, 426.) Dr. Stolz did not justify his opinion other than saying these parameters are contained in oil and gas waste or were tested for in the TENORM Study. However, Mr. Lombardo credibly and convincingly testified that there is a valid technical reason why it would be unnecessary or redundant to sample for the Pollutant Group 7 and TENORM parameters in addition to the radium sampling that is already required by the permit. First, radium is soluble while other radioactive parameters like thorium and uranium are not. (T. 500-01.) There are many radionuclides in the decay series for elements such as uranium and thorium, but none of them are soluble in water except for radium. (T. 510-11.) Both radium-226 and radium-228 are soluble. (T. 505.) Therefore, only radium will make its way into the landfill's leachate. When water infiltrates into the waste mass disposed of at the Tri-County Landfill, only radium will leach out of the waste into the water, not other radionuclides, even if they may be present in the waste. If other radionuclides are not present in the leachate that precipitates out of the waste, they will not be present in the effluent that is discharged from Tri-County's future treatment plant. Mr. Lombardo stated that this is supported by a wealth of data in the TENORM Study, where all liquid samples were analyzed for thorium, uranium, and radium, and the results were always negative for thorium and uranium; only radium showed up in the liquid samples. (T. 511.)

Mr. Lombardo also credibly opined that there is no need to analyze for parameters like gross alpha or gross beta radiation because radium-226 decays by alpha and radium-228 decays by beta. (T. 511-12.) In other words, alpha and beta radiation are already being analyzed through the emission of alpha and beta particles by way of the decay of radium-226 and radium-228. For K-40, Mr. Lombardo credibly testified that it is a naturally occurring radionuclide and that everything disposed of at a landfill is a source for K-40, so it would not be particularly indicative of oil and gas waste. (T. 514-15.) For strontium, Mr. Lombardo testified that strontium-90 is the radioactive isotope of strontium and it can only be made by using a reactor to split uranium-235 atoms into two, but natural strontium is not radioactive. (T. 512-13.) We credit Mr. Lombardo's opinion that it was not necessary to include monitoring requirements in the permit for radioactive parameters other than radium.

The Appellants never really contend with Mr. Lombardo's opinions or attempt to rebut them. They do not present any argument in their briefs on the substance of Mr. Lombardo's testimony or why anything is wrong with his opinions, except for a suggestion that he should have taken background samples at the location Outfall 006, but that obviously does not detract from all of the sound opinions he rendered in this case. Instead, the Appellants have only focused, unsuccessfully, on trying to discredit him for his prior work for the Department on the TENORM Study. Where Dr. Stolz equivocated in his final opinions, Mr. Lombardo was clear, firm, and unambiguous. We fully credit Mr. Lombardo's bottom-line conclusions: (1) that the acceptance of oil and gas waste by the Tri-County Landfill will not have a statistically significant impact on the concentration of radium-226 and radium-228 in the landfill's leachate, and (2) that the discharge of treated leachate will not have an adverse impact on the receiving stream in terms of radioactivity and it will not increase radioactivity in the UNT to Black Run. (T. 495-96.) The volume of oil and gas waste that will be accepted by the Tri-County Landfill is a very small fraction of the total waste to be accepted, and therefore, we agree with Mr. Lombardo that the contribution of radium to the landfill's leachate will likely be very small. (T. 498.)

In short, the Appellants have not established that there is any reasonable basis for imposing monitoring requirements or effluent limits for additional radioactive parameters beyond radium in the permit, and the Appellants did not present any evidence for why effluent limits for radium-226 and radium-228 are necessary to protect any uses of the UNT to Black Run or instream water quality.

One item in the permit necessitates correction, however. Under the monitoring parameters for Outfall 006, radium-226 is listed twice. (J. Ex. 1 (at 7).) The Department and Tri-County maintain that one of those is supposed to say radium-228. All the parties seem to acknowledge that the omission of radium-228 from the monitoring parameters under Outfall 006 is an error. (See Stip. 20.) The Department and Tri-County believe it is inconsequential because radium-228 is mentioned in other parts of the permit. For instance, they point out that, on the very last page of the permit, in a section addressing the analysis types for radium testing, the permit identifies EPA analytical methods for both radium-226 and radium-228 that are to be used for reporting purposes. (Id. (at 31).) The Department adds that the Discharge Monitoring Reports (DMRs) that Tri-County must submit to the Department contain a parameter for radium-228, and Tri-County must comply with the DMRs, so the failure to include radium-228 as a monitoring parameter under Outfall 006 does not excuse Tri-County from having to monitor for it.

The Department argues that it was a harmless error to list radium-226 twice, but that does not necessarily mean that it is an immaterial error. A permit should correctly list all of the parameters that need to be monitored without having to rely by reference on DMRs or analytical methods listed in other documents or other parts of the permit. The Board has broad authority to take action on permits where we have determined that the Department has erred. Warren Sand and Gravel Co. v. Dep't of Envtl. Res., 341 A.2d 556, 565-66 (Pa. Cmwlth. 1975). See, e.g., Gerhart v. DEP, 2019 EHB 534 (modifying Chapter 102 and 105 permits to correct the classification of a particular wetland for purposes of post-construction restoration but otherwise upholding the permits); Friends of Lackawanna, supra (adding a condition to a permit for a solid waste landfill but otherwise upholding the permit renewal); Stedge, supra (modifying general permit coverage approval to add a condition but upholding the Department's approval in all other respects). While the Department says the omission of radium-228 is a typo, we are not sure why the Department has not corrected that typo at any point since the permit was issued in April 2023. The Department's explanation at the hearing for why it has not corrected the error was not satisfying. (T. 573.) Accordingly, we will correct the permit to reflect radium-228 as a parameter in the monitoring requirements for Outfall 006. No remand of the permit is necessary for the error to be corrected by the Department. No further remedy is warranted.

EPA Review

The Appellants argue in the briefest of terms that Tri-County's permit was subject to EPA review. (App. Brief at 47; Reply Brief at 8-9.) It is not clear what the Appellants hope to gain by having EPA review the permit. We do not see any reason to remand the permit to the Department with directions to submit it to EPA for review. It is not clear what aspects of the permit the Appellants believe might be subject to revision based on an EPA review, or why such review would be anything other than a pointless exercise designed to delay issuance of the permit.

In any event, the Appellants base their claim on a Memorandum of Agreement, which waived EPA's review of individual NPDES permits except for a specific list, Item 8 of which is "[i]ndividual NPDES permit for facilities that accept or are proposing to accept and treat oil and gas resource extraction wastewater." (App. Ex. 61.) The Appellants fail to recognize the distinction between a treatment plant treating oil and gas extraction wastewater, and a plant such as Tri-County's which is treating leachate that in turn may have been impacted by oil and gas waste. The Department has correctly interpreted the agreement to mean that EPA has only retained the right to review the former. Leachate is not an oil and gas extraction water. There is no dispute that Tri-County's plant has not been permitted to accept oil and gas extraction water directly for treatment. (T. 24-25, 562.)

Compliance History

The Appellants argue that the compliance history of Tri-County and its related companies required denial of the NPDES permit. We dealt with Tri-County, et al.'s compliance history extensively in the solid waste permit appeal. We held that their compliance history did not justify withholding that permit. Liberty Twp., slip op. at 93-98. In the instant appeal, we did not permit the Appellants to rehash Tri-County's entire compliance history. Instead, we directed them to limit their focus on compliance issues that occurred since our hearing in the solid waste permit appeal, which we held in April 2023. The Appellants say "[e]ach of the Department and TriCounty presented witnesses who testified about compliance history, and Appellants argue that this opened the door for the Board to revisit this issue." (App. Brief at 57.) In fact, both the Department and Tri-County abided by our ruling, and neither offered any evidence regarding compliance issues that occurred before April 2023. We hereby reaffirm our ruling that the Appellants are collaterally estopped from arguing that Tri-County's compliance history prior to April 2023 justified denial of the NPDES permit. Although two different permits are involved, the issue is nevertheless identical in both cases. The prior action, in which the Appellants were the same as here, resulted in a final adjudication. The Appellants had a full and fair opportunity to litigate the issue, and in fact did litigate the issue. Our ruling on compliance history was essential to the Adjudication. Therefore, collateral estoppel applies. Borough of St. Clair v. DEP, 2015 EHB 290, 310-12; Kuzemchak v. DEP, 2010 EHB 564, 566-68.

Turning to Tri-County's compliance history since the hearing in the solid waste case, the Clean Streams Law prohibits the Department from issuing any permit required under the Clean Streams Law if the Department finds that:

(1) the applicant has failed and continues to fail to comply with any provisions of law which are in any way connected with or related to the regulation of mining or of any relevant rule, regulation, permit or order of the department, or of any of the acts repealed or amended hereby; or

(2) the applicant has shown a lack of ability or intention to comply with such laws as indicated by past or continuing violations. Any person, partnership, association or corporation which has engaged in unlawful conduct as defined in section 611 or which has a partner, associate, officer, parent corporation, subsidiary corporation, contractor or subcontractor which has engaged in such unlawful conduct shall be denied any permit required by this act unless the permit application demonstrates that the unlawful conduct is being corrected to the satisfaction of the department....

35 P.S. § 691.609.

As the Board noted in our January 2024 Adjudication:

A third-party appellant who would have us overturn a permit based on the compliance history and status of the permittee has a heavy burden. This is an area where the Department has a considerable amount of discretion. Concerned Citizens of Yough, Inc. v. Dep't of Envtl. Prot., 639 A.2d 1265, 1271 (Pa. Cmwlth. 1994). A generalized claim of noncompliance without a showing of specific, concrete problems typically will not suffice. Friends of Lackawanna, 2017 EHB at 1178..The purpose of the compliance review is to ensure the applicant is likely to be responsible enough to be informed of what the law and regulations require and motivated to make an effort to comply with those regulations; an applicant's past is certainly an indicator of future behavior. See Perano v. DEP, 2011 EHB 453, 494-97; Colbert v. DEP, 2006 EHB 90, 109-10.

Liberty Twp., slip. op. at 94.

The Appellants have failed to meet their burden of proving that Tri-County cannot be trusted with the NPDES permit due to its compliance history. Tri-County has not received any notices of violation since the April 2023 hearing on the solid waste permit. No orders, civil penalties, or other enforcement actions have been taken against Tri-County. The Appellants have not shown that there are any ongoing violations that have not been corrected or are in the process of being corrected regarding any of Tri-County's affiliated companies since the hearing on the solid waste permit that rise to the level of instituting a permit bar. Justin Dickey, who signed the permit for the Department, credibly testified that he was confident that Tri-County will comply with the NPDES permit because of how Tri-County and its affiliated companies have responded to violations. (T. 583.) There are no open violations. (T. 576, 579-80.) In sum, the Appellants' argument that the NPDES permit should have been denied under Section 609 of the Clean Streams Law based upon the compliance history of Tri-County and its related companies finds no support in the record.

Article I, Section 27

The Appellants argue that the Department violated Article I, Section 27 of the Pennsylvania Constitution.⁵ The first step in our constitutional analysis is to determine whether the Department, after considering the environmental effects of its action, has correctly determined that its action will not result in unreasonable degradation, diminution, depletion, or deterioration of the environment. Next we assess whether the Department has satisfied its trustee duties by acting with prudence, loyalty, and partiality with respect to the beneficiaries of the natural resources impacted by the Department's action. Stocker v. DEP, 2022 EHB 425, 445.

5 Article I, Section 27 provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.

PA. CONST. art I, § 27.

The record shows that the Department exhaustively and carefully considered the environmental effects of issuing Tri-County's permit. The above discussion amply shows that the Appellants have failed to carry their burden of proving that the permitted discharge will adversely impact the environment. There is no evidence that the Department failed to satisfy its trustee duties. The peoples' right to clean water has not been compromised.

While we acknowledge and appreciate the fact that Liberty Township also acts as a trustee pursuant to Article I, Section 27, it does so in the performance of its municipal duties as conferred by statute. Article I, Section 27 does not expand its duties or its power to act beyond the bounds of its enabling legislation. Frederick v. Allegheny Twp. Z.H.B., 196 A.3d 677, 697 (Pa. Cmwlth. 2018).

Liberty Township and Community Concerns

The "Appellants argue that the Board should recognize the import of Liberty Township's opposition to the NPDES Permit, including by recognizing its Ordinances." (App. Brief at 54.) It is not readily apparent from this statement what the Appellants mean when they say we "should recognize the import of the ordinances." At other points in the brief's proposed findings of fact and conclusions of law, the Appellants say it is the Township's position that issuance of TriCounty's permit or the "activities under the permit" violate the ordinances "because of the existence of hazardous and radioactive waste that Liberty Township believes will be present in the discharges." (App. Brief at 20, 60.)

The Appellants do not cite any ordinances.⁶ They do not explain how language in any ordinances can be said to prohibit issuance of the permit or "activities under the permit." They do not explain what provisions in the ordinance they believe are violated "because of the existence of hazardous and radioactive waste" the Township believes will be present in the discharges. They do not explain or support their contention that the discharges will contain "waste," let alone hazardous or radioactive waste. In short, the Appellants have not adequately preserved this issue in their briefs.

6 Although we denied the admission of two exhibits containing ordinances at the hearing, App. Ex. 46 and 47, we specifically stated that the exhibits were included in the record for purposes of briefing. (T. 219.) The Appellants have not in their briefs challenged our evidentiary ruling in any way.

However, in the interests of a complete record, we note that the first ordinance purports to regulate the disposal of hazardous waste within the Township. (T. 200.) Appellants presented no evidence that the effluent to be discharged qualifies as hazardous waste under any state or federal regulation. The second ordinance purports to provide for the cleanup and abatement of spills or deposits of hazardous materials. (T. 205.) This ordinance has no application to an authorized discharge under the NPDES program, which cannot be considered a spill or deposit.

The Appellants variously charge that the Department demonstrated "extreme partiality" toward Tri-County, "improperly accommodating Tri-County's industrial and private profit seeking endeavor," and ignored the Township's and public's comments and concerns. (E.g. App. Brief at 39, 48, 54, 84.) It is difficult to understand how the Appellants can argue in good faith that the Department ignored the Township's and the "community's" concerns given all of the Department's transparency and responsiveness in the permit review process. First, we do not necessarily agree that the Appellants speak for the community at large. For example, Pine Township, where the landfill is also located and which originally appealed Tri-County's solid waste permit, withdrew that appeal and its Supervisor testified in support of the landfill in that appeal. (See EHB Docket No. 2021-007-L, Testimony of Richard Stachel, T. 1185-1201.) Pine Township did not appeal the NPDES permit.

With regard to the Appellants' assertion that the Department ignored concerns, along with the traditional Pennsylvania Bulletin notices the Department developed a website where all draft and final permit documents were posted for the public to review. (T. 560; J. Ex. 4.) The Department held a public meeting where the public could voice their concerns about the permit directly to the Department. (T. 560.) The Department published notice of the meeting in the Pennsylvania Bulletin and a local newspaper, and sent direct notification to all parties who had expressed an interest in the permit. (T. 560-61; J. Ex. 5.) The Department issued a comment response document addressing each and every comment received from the public. (T. 563; J. Ex. 6.) The Department did not just answer the public's comments, it also actually changed the permit based on those comments by adding monitoring requirements for radium-226 and radium-228 despite there being no legal requirement and a questionable need to do so. (T. 563; J. Ex. 7.)

To the extent the Appellants cite Marcellus Shale Coalition v. Department of Environmental Protection, 292 A.3d 921 (Pa. 2023), for the proposition that municipalities should have their concerns considered in the permitting process, we heartily agree. There is no question here, however, that the Department fully considered Liberty Township's concerns in the permitting process.⁷

7 To the extent the Appellants have raised arguments that we have not addressed in this Adjudication, we have fully considered those arguments and have not found them to be persuasive. Marshall v. DEP, 2020 EHB 60, 72 ("Although we do not specifically address each and every point raised in Marshall's papers, we have given all of them due consideration and we find that she has not met her burden of proof with respect to the issues she has raised." (citing Big B Mining Co. v. DER, 1987 EHB 815, 867, aff'd, 554 A.2d 1002 (Pa. Cmwlth. 1989); Lower Providence Twp. v. DER, 1986 EHB 802, 821; Del-Aware Unlimited, Inc. v. DER, 1984 EHB 178, 328, aff'd, 508 A.2d 348 (Pa. Cmwlth. 1986))). See also Liberty Twp., slip op. at 108 n.12.

CONCLUSIONS OF LAW

1. The Environmental Hearing Board has jurisdiction over this matter. 35 P.S. § 691.7; 35 P.S. § 7514.

2. The Board reviews Department actions de novo, meaning we decide the case anew on the record developed before us. Borough of St. Clair v. DEP, 2016 EHB 299, 318; O'Reilly v. DEP, 2001 EHB 19, 32; Warren Sand & Gravel Co. v. Dep't Envtl Res., 341 A.2d 556 (Pa. Cmwlth. 1975).

3. In third-party appeals, the appellants bear the burden of proof. 25 Pa. Code § 1021.122(c)(2); Joshi v. DEP, 2019 EHB 356, 364; Jake v. DEP, 2014 EHB 38, 47.

4. The Appellants must show by a preponderance of the evidence that the Department acted unreasonably or contrary to the law, that its decision is not supported by the facts, or that the decision is inconsistent with the Department's obligations under the Pennsylvania Constitution. Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, 236, aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016); Friends of Lackawanna v. DEP, 2017 EHB 1123, 1156.

5. Issues previously raised in an appeal but not included in a party's post-hearing brief are waived. 25 Pa. Code § 1021.131(c); Morrison v. DEP, 2021 EHB 211, 221; Benner Twp. Water Auth. v. DEP, 2019 EHB 594, 635; New Hope Crushed Stone & Lime Co. v. DEP, 2017 EHB 1005, 1021.

6. The Board reviews the Department's final action, not the Department's review process leading up to a final action, such as its review of a permit application. Friends of Lackawanna v. DEP, 2017 EHB 1123, 1156; Snyder v. DEP, 2016 EHB 705, 706.

7. The Appellants have not shown that any errors or information contained in Tri-County's permit application have any continuing relevance that would require action with respect to the NPDES permit issued by the Department. See Stedge v. DEP, 2015 EHB 577, 612; O'Reilly v. DEP, 2001 EHB 19, 51.

8. The Appellants have not shown that any of the permit's effluent limits are inconsistent with technology-based effluent limits or water quality-based effluent limits designed to ensure that the existing and designated uses of the UNT to Black Run are maintained and protected. 25 Pa. Code § 93.4a; 25 Pa. Code § 96.4(b); 40 C.F.R. §§ 125.1-125.3 (incorporated by 25 Pa. Code § 92a.3); Penn Coal Land, Inc. v. DEP, 2017 EHB 337, 350; Borough of Stockertown v. DEP, 2016 EHB 456, 461-62; Mun. Auth. of Union Twp. v. DEP, 2002 EHB 50, 52-53.

9. The Appellants have not established that any additional monitoring requirements or effluent limits for any other parameters should have been included in the permit.

10. The federal Clean Water Act does not categorically prohibit discharges to impaired waters. Arkansas v. Oklahoma, 503 U.S. 91, 107 (1992). See also Friends of the Wild Swan, Inc. v. United States EPA, 74 Fed.Appx. 718 (9th Cir. 2003); In re Carlota Copper Co., 11 E.A.D. 692 (EAB 2004).

11. The Department is not prohibited from issuing NPDES permits that authorize discharges into impaired waters that do not yet have a Total Maximum Daily Load (TMDL) established. See City of Taunton v. United States EPA, 895 F.3d 120, 139-40 (1st Cir. 2018); Upper Blackstone Water Pollution Abatement Dist. v. United States EPA, 690 F.3d 9, 26 (1st Cir. 2012); In re City of Lowell, 18 E.A.D. 115, 153 (EAB 2020); In re City of Ruidoso Downs, 17 E.A.D. 697, 733 (EAB 2019), pet. for review denied sub nom., Rio Hondo Land & Cattle Co. v. United States EPA, 995 F.3d 1124 (10th Cir. 2021); In re Carlota Copper Co., 11 E.A.D. 692 (EAB 2004).

12. The resolution of evidentiary conflict, witness credibility, and evidentiary weight are matters committed to the discretion of the Board. EQT Prod. Co. v. Dep't of Envtl. Prot., 193 A.3d 1137, 1149 (Pa. Cmwlth. 2018); Kiskadden v. Dep't of Envtl. Prot., 149 A.3d 380, 387 (Pa. Cmwlth. 2016).

13. "Expert testimony is required where the issues require scientific or specialized knowledge or experience to understand." Brockway Borough Mun. Auth. v. Dep't of Envtl. Prot., 131 A.3d 578, 587 (Pa. Cmwlth. 2016) (citing Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 828-29 (Pa. Cmwlth. 2010)).

14. The Board has broad authority to take action on permits where we have determined the Department has erred. Warren Sand and Gravel Co. v. Dep't of Envtl. Res., 341 A.2d 556, 56566 (Pa. Cmwlth. 1975).

15. The Department erred in listing radium-226 twice as a monitoring requirement for Outfall 006 and not listing radium-228.

16. The Department was not required to submit Tri-County's permit application or draft NPDES permit to the EPA for review.

17. Collateral estoppel precludes the Appellants from relitigating the compliance history of Tri-County and its affiliated companies prior to April 2023 when the issue was fully litigated by the same parties and decided by the Board in Liberty Twp. v. DEP, EHB Docket No. 2021-007-L (Adjudication, Jan. 8, 2024). Borough of St. Clair v. DEP, 2015 EHB 290, 310-12; Kuzemchak v. DEP, 2010 EHB 564, 566-68.

18. The Department properly evaluated the compliance history of Tri-County Landfill and its related companies. 35 P.S. § 691.609.

19. The Appellants have not shown that Tri-County cannot be trusted with its permit, that Tri-County lacks the ability or intent to comply with the law, or that it has any ongoing unlawful conduct. 35 P.S. § 691.609; O'Reilly v. DEP, 2001 EHB 19, 44-45; Belitskus v. DEP, 1998 EHB 846, 868-70.

20. The Appellants have not shown that the Department acted contrary to its trustee duties and obligations under Article I, Section 27 of the Pennsylvania Constitution in issuing the permit. PA. CONST. art. 1, § 27; Stocker, 2022 EHB 425, 445.

21. The Appellants have not met their burden of proof on their claims in this appeal. 25 Pa. Code § 1021.122(c)(2).

ORDER

AND NOW, this 19th day of December, 2024, it is hereby ordered as follows:

1. Page 7 of NPDES Permit No. PA0263664, addressing the effluent limitations, monitoring, recordkeeping, and reporting requirements for Outfall 006, is corrected to reflect that a quarterly monitoring requirement is imposed for both parameters radium-226 and radium-228.

2. NPDES Permit No. PA0263664 is otherwise upheld, and the Appellants' appeal is dismissed.

ENVIRONMENTAL HEARING BOARD

BERNARD A. LABUSKES, JR. Board Member and Judge

SARAH L. CLARK Board Member and Judge

MARYANNE WESDOCK Board Member and Judge

PAUL J. BRUDER, JR. Board Member and Judge ^[*]

[*] Chief Judge and Chairperson Steven C. Beckman is recused in this matter and did not participate in the decision.