support of these monitoring frequency requirements. He found the Region's justification for setting these specific requirements to be without scientific or legal substance and accordingly he rejected them.2 Having rejected the higher levels, the presiding officer reduced the permit's monitoring frequency requirements for the metals in question to once a month. In addition, since monthly monitoring data introduced at the hearing showed the presence of the metals in question to be consistently below permit limits (with one notable (and one minor) exception which will be discussed later), the presiding officer directed the Region to "seriously consider a re-evaluation of the permit in the light of the two years of data that it now has at its disposal and * * * perhaps eliminate the limitations and associated monitoring for several of the metals in question." Initial Decision, p. 23. The Chief Judicial Officer, as the Administrator's delegatee, has authority to consider Region IV's petition for review of the presiding officer's initial decision under 40 CFR §§ 124.72 and 91 (1984). For the reasons discussed below, Region IV's petition for review is denied, and the presiding officer's initial decision, with the modifications described below, now becomes the Agency's final decision. DISCUSSION It is well settled that a petition for review of an ALJ's initial decision on an NPDES permit is not normally accepted unless the decision is clearly erroneous or involves an exercise of discretion which is important and should be reviewed as a discretionary matter (see, e.g., Boston Edison Company, NPDES Appeal No. 78–7, August 28, 1978). The burden of demonstrating clear error is on the petitioner. Here the Region has fallen far short of sustaining its burden of demonstrating that the initial decision was clearly erroneous. In its petition the Region claims that the presiding officer clearly erred in rejecting the higher monitoring frequency requirements contained in the permit. I disagree. The presiding officer rejected the weekly and bimonthly monitoring requirements for the metals in question because he found that the Region failed to present any evidence of scientific or legal substance to support these specific (higher than usual) requirements. Based on review of the hearing record, I agree that the Region failed to present any evidence of scientific or legal substance to support the propriety of imposing 2 See n. 3 infra. weekly and bimonthly requirements in this case.3 Accordingly, I believe it was proper for the presiding officer to reject the higher monitoring frequency requirements and therefore I cannot conclude that the presiding officer's holding in this regard was clearly erroneous.4 Next, I must consider whether or not the presiding officer committed clear error in choosing once-a-month as the appropriate monitoring frequency requirement for the metals in question. Here again Petitioner has not persuaded me that the presiding officer's holding should be reviewed. Whether a particular monitoring frequency level is appropriate depends upon whether it is reasonable in a given set of circumstances.5 In this case there is ample evidence in the record to support once-a-month as a reasonable monitoring frequency requirement for the metals in question. First, the record shows that based on a survey by Region IV of Agency-issued NPDES permits for POTW's in Florida and Kentucky,6 an overwhelming majority contain no heavy metals monitoring frequency requirements whatever, and in those infrequent instances where such monitoring is required, it is rarely at a frequency greater than once-a-month. (Tr. pp. 117-120; EPA Exhibit 1; Initial 3 In prepared testimony the Region offered a number of reasons as to why the Agency needed to impose these higher monitoring frequency requirements. The Region's reasons for these higher than usual requirements include early detection of effluent limitation violations, detection of discharges of "slugs" of heavy metals contaminants to Yellow Creek, concern by the public and elected representatives for the deteriorated condition of Yellow Creek and for possible contamination of downstream drinking water wells, and the history of Middlesboro's noncompliance with effluent limitations for conventional pollutants, i.e., BOD, TSS, etc. Although these reasons may well justify further investigation to determine whether higher than usual requirements are necessary, they do not, in and of themselves, justify the specific bimonthly and weekly monitoring requirements at issue. For that, scientific data or legal support (or both) is necessary. The Region has submitted no scientific data nor legal support which would justify bi-monthly and weekly monitoring requirements. Indeed, evidence in the record shows that monthly monitoring gives a true picture of the heavy metals content of the discharges in question and is sufficient to determine whether or not the City's POTW is in compliance with the heavy metals discharge limitations in the permit. (See discussion pp. 5, 6, infra.) 4 Whether a particular monitoring frequency level is proper depends upon whether it is reasonable in a given set of circumstances. See Decision of the General Counsel No. 21 (June 21, 1975); See also 40 CFR § 122.48(b) (1984). The Region simply failed to present any evidence of substance showing that weekly and bimonthly monitoring frequencies were reasonable in light of the circumstances involved here. Accordingly, the presiding officer properly rejected the higher monitoring frequency requirements. 5 Id. 6 Survey data from other states within Region IV was not presented because those states have been issuing their own permits for several years under a delegation of authority from EPA. Decision, pp. 13, 16.) Moreover, the Region's arguments for departing from monthly monitoring frequency requirements in favor of imposing weekly and bi-monthly requirements in this case are without scientific or legal substance.7 Finally, and perhaps most significantly, monitoring data presented at the evidentiary hearing shows that monthly monitoring gives a true picture of the heavy metals content of the discharges in question and is sufficient to determine whether or not the City's POTW is in compliance with the discharge limitations for these metals in the permit. See Table II, City's Exhibit I, and the attachment to EPA Exhibit 4. The monitoring data show that from February 1983 to April of 1984 the City monitored its POTW's influent (from the tannery) and effluent on a monthly basis for the metals in question. The monitoring readings are relatively uniform, with no one reading for any given metal significantly higher or lower than any other monthly reading for the same metal. And, except for mercury (and one minor disgression for cadmium), all readings appear to be within the limitations set forth in the permit. If the monthly readings for any given metal did not display uniformity more frequent monitoring requirements should be considered, of course. But that is not the case here. Moreover, monthly monitoring appears sufficient in this case to detect permit limitation violations, as shown by the fact that on at least six separate occasions in the 15 month time span, mercury concentrations were detected at levels exceeding permit limitations.8 For all the foregoing reasons, monthly monitoring requirements appear reasonable, and, accordingly, I cannot conclude that the presiding officer committed clear error in reducing the permit's monitoring frequency requirements for the metals in question to once-permonth. In summary, the Region has not shown that the presiding officer committed clear error in rejecting the high monitoring frequency requirements originally contained in the pernit nor in reducing the requirements to once-per-month. And, since no reason has been presented (nor can I conceive of one) for taking discretionary review, the Region's petition for review of the presiding officer's initial decision is denied. 7 See n. 3, supra. • From its post-hearing brief it appears the City contends the permit's mercury effluent limitation should be raised to .2 ugl. The presiding officer did not decide nor mention this issue in the initial decision. Since the city has not filed a responsive petition nor a petition for review of its own, I must assume that the City is content to let the matter rest. Since review has been denied, the presiding officer's initial decision now stands as the Agency's final decision. Nevertheless, there are two statements of the presiding officer contained in the initial decision to which I take exception. The presiding officer states at p. 14 of his initial decision: For the Region "[t]o rely simply upon the city's own This conclusion was unnecessary to resolve the merits of any issue in this case. It seems to have been gratuitously offered by the presiding officer without supporting justification in the record. The Region may have indeed set the monitoring frequencies in question too high, but nothing in the record supports the conclusion that the Region's conduct in this regard should or could be characterized as grossly negligent or "negligence of the highest order." Accordingly, the statement quoted above is not adopted as part of the Agency's final decision. Also, the presiding officer directed the Region to consider reevaluating the permit in light of the monitoring data previously described (see pp. 5, 6, supra) and perhaps eliminate the limitations and associated monitoring for several of the metals in question.9 In light of the monitoring data the presiding officer's directive to possibly eliminate monitoring requirements for several of the metals in question seems sensible. However, the presiding officer cites no legal (or other) justification in support of his directive to consider eliminating the discharge limitations themselves, and I can conceive of none, unless the monitoring results showed no discharge whatever of the pollutants in question, which is not the case. Accordingly, that portion of the presiding officer's order directing the Region to consider eliminating the discharge limitations themselves is rejected. The initial decision, absent the statements referred to in this and the preceding paragraph, now stands as the Agency's final decision. The Region is directed to redraft the permit by reducing the tannery's influent monitoring frequency requirements for hexavalent chromium, trivalent chromium, nickel, zinc, cadmium, copper, iron, aluminum, lead and silver, as well as the effluent monitoring fre 9 It is unclear whether the presiding officer intended to "direct" or merely "strongly suggest" a re-evaluation since he used both terms in his initial decision. quency requirements for cadmium, copper, lead, mercury, nickel, and zinc to once-per-month. Moreover, as the presiding officer directed, the Region should seriously consider a re-evaluation of the permit in the light of the two years of data it now has at its disposal, and perhaps eliminate the monitoring requirements for several of the metals in question. Initial Decision p. 23. Of course, if, after giving the matter serious consideration the Region determines that a re-evaluation is not warranted, the Region need not eliminate nor further reduce any of the monitoring frequency requirements at issue. So ordered. |