EPA Proposes New Nanoscale Chemical Reporting Rule
By E. Lynn Grayson
EPA has proposed one-time reporting and record keeping requirements on nanoscale chemical substances in the marketplace. The proposed rule contains a 90-day public comment period. After the comment period, EPA will review and consider those comments before issuing any final rule. EPA also anticipates a public meeting during the comment period to obtain additional public input.
Specifically, EPA proposed requiring companies that manufacture or process (or intend to manufacture or process) chemical substances in the nanoscale range to electronically report information, including the specific chemical identity, production volume, methods of manufacture, processing, use, exposure and release information, and available health and safety data. The proposed rule would apply to chemical substances that have unique properties related to their size. The proposed rule contains exclusions for chemical substances in the nanoscale range that would not be subject to the rule. In addition to this proposed one-time reporting on chemical substances manufactured or processed as nanoscale materials already in commerce, EPA currently reviews new chemical substances manufactured or processed as nanomaterials prior to introduction into the marketplace to ensure that they are safe.
Chemical substances that have structures with dimensions at the nanoscale -- approximately 1-100 nanometers (nm) -- are commonly referred to as nanoscale materials or nanoscale substances. A human hair is approximately 80,000-100,000 nanometers wide. These chemical substances may have properties different than the same chemical substances with structures at a larger scale, such as greater strength, lighter weight, and greater chemical reactivity. These enhanced or different properties give nanoscale materials a range of potentially beneficial public and commercial applications; however, the same special properties may cause some of these chemical substances to behave differently than conventional chemicals under specific conditions.
EPA is proposing this new requirement under TSCA Section 8(a) to determine if further action, including additional information collection, is needed.
More information about the proposed rule, including the Federal Register notice, EPA fact sheet and press release, are available at http://www.epa.gov/oppt/nano/.
World Water Day 2015
By E. Lynn Grayson
Designated by the UN General Assembly in 1993, World Water Day is celebrated each March 22nd. This year's theme for World Water Day is "Water and Sustainable Development." It is about how water links to all areas we need to consider to create a more sustainable future.
According to UN Water, a day for water and water for sustainable development includes the following considerations:
Water is health – clean hands can save your life.
Water is nature – ecocystems lie at the heart of the global water cycle.
Water is urbanization – every week one million people move into cities.
Water is industry – more water is used to manufacture a car than fill a swimming pool.
Water is energy – water and energy are inseparable friends.
Water is food – to produce two steaks, you need 15,000 liters of water.
Water is equality – every day women spend millions of hours carrying water.
FY2016 EPA Budget Proposal
By E. Lynn Grayson
EPA Administrator Gina McCarthy recently testified before the Senate Environment and Public Works Committee regarding EPA's proposed 2016 fiscal year budget. EPA's 2016 fiscal year from October 1, 2015 through September 30, 2016. EPA is seeking an increase of $453M over the FY2015 budget to $8.6B proposed in FY2016.
FY2016 budget highlights include funding to address:
1. Making a visible difference in communities across the country—efforts focused on coordination with other federal agencies, states, tribes and stakeholders to provide community support for needed assistance and support for capacity building, planning, and implementation of environmental protection programs;
2. Addressing climate change and improving air quality—actions to reduce climate change and support the President's Climate Action Plan including new proposed funding for greenhouse gases through commonsense standards, guidelines and voluntary programs;
3. Protecting the Nation's Waters—focus on to ensure waterways are clean and drinking water is safe because there are far reaching effects when rivers, lakes and oceans become polluted;
4. Taking steps to improve chemical facility safety—support to improve the safety and security of chemical facilities and reduce the risks of hazardous chemicals to facility workers and operators, communities and responders;
5. Protecting our lands—continued work to cleanup hazardous and nonhazardous wastes that can migrate to air, groundwater and surface water and soils;
6. Ensuring the safety of chemicals and preventing pollution—expand chemical safety programs and enhance quality, accessibility and usefulness of information about commercial chemicals and pesticides;
7. Continuing EPA's commitment to innovative research & development—R&D efforts to address the interplay between air quality, climate change, water quality, healthy communities and chemical safety;
8. Supporting state and tribal partners—new funds for categorical grants and setting the bar for continuing partnership efforts with states and tribes;
9. Maintaining a forward looking and adaptive EPA—emphasis on physical footprint including space optimization and essential renovations of laboratories throughout the U.S.; and,
10. Reducing and eliminating programs—elimination of programs that have served their purpose and accomplished their mission for a cost savings of $44M.
For more information on the proposed budget, visit http://www2.epa.gov/planandbudget/fy2016.
Criminal Asbestos Case Against Tennessee Salvage Company
By E. Lynn Grayson
U.S. District Judge Ronnie Greer sentenced five people to prison terms in federal court in Greeneville, Tennessee, this week for conspiring to commit Clean Air Act offenses in connection with the illegal removal and disposal of asbestos-containing materials at the former Liberty Fibers Plant in Hamblen County, Tennessee, the Justice Department announced. A&E Salvage had purchased the plant out of bankruptcy in order to salvage metals which remained in the plant after it ceased operations.
U.S. District Judge Greer sentenced Mark Sawyer, 55, of Morristown, Tennessee, a former manager of A&E Salvage, to the statutory maximum of five years in prison, to be followed by two years of supervised release. A&E Salvage manager Newell Lynn Smith, 59, of Miami, Florida, was sentenced to 37 months and two years of supervised release. A&E Salvage Manager Eric Gruenberg, 50, of Lebanon, Tennessee, received a 28-month sentence. Armida, 56, and Milto DiSanti, 54, of Miami, Florida, each received sentences of six months in prison, to be followed by six months of home confinement. The judge ordered all the defendants to pay restitution of more than $10.3 million, which will be returned to Environmental Protection Agency's (EPA) Superfund, which was used to clean up the plant site contamination.
According to court documents, all the defendants pleaded guilty to one criminal felony count for conspiring to violate the Clean Air Act's "work practice standards" salient to the proper stripping, bagging, removal and disposal of asbestos. According to the EPA, the individuals engaged in a multi-year scheme in which substantial amounts of regulated asbestos containing materials were removed the former Liberty Fibers plant without removing all asbestos prior to demolition and stripping, bagging, removing and disposing of such asbestos in illegal manners and without providing workers the necessary protective equipment.
While managing asbestos in renovations and demolition projects can be challenging from an environmental and worker safety perspective, there clearly is a right way to do it and a wrong way. This case serves as a good reminder that taking shortcuts to save time and/or money has significant consequences.
California Seeks to Amend Proposition 65
By Steven M. Siros
On January 12, 2015, California's Office of Environmental Health Hazard Assessment ("OEHHA") proposed modifications to California's controversial Proposition 65 regulations. As any company that does business in California should know, Proposition 65 requires that a warning be provided for any product that contains one of hundreds of chemicals identified on the Proposition 65 list if there is any risk of a person being exposed to the listed chemical above a specified threshold. As a result, one is bombarded with Proposition 65 warnings from the point one disembarks onto the jet bridge until the time one arrives at his/her hotel and orders room service. OEHHA's proposed amendments to Proposition 65 appear to do little to ease the regulatory burden on companies that do business in California and/or minimize the burden of having to read all of the Proposition 65 warnings.
Overview of Proposed Changes
Warnings Must Now Identify Specific Chemicals: OEHHA has listed the following 12 chemicals which must be identified by name in any Proposition 65 warning: Acrylamide; Arsenic; Benzene; Cadmium; Carbon Monoxide; Chlorinated Tris; Formaldehyde; Hexavalent Chromium; Lead; Mercury; Methylene Chloride; and Phthalates.
Modified "Safe Harbor" Language: In order to avail oneself of the "safe harbor" warning, the warning must state that a product "can expose you" to a chemical or chemicals as opposed to the old "safe harbor" language that merely required that the warning state that the product "contains a chemical" that is known to the State to cause cancer or reproductive toxicity. In addition, for the following consumer products and services, specific warnings would be required: food and dietary supplements; alcoholic beverages; restaurant foods and non-alcoholic beverages; prescription drugs; dental care; furniture; diesel engine exhaust; parking facilities; amusement parks; designated smoking areas; petroleum products; service station and vehicle repair facilities.
New Lead Agency Website: The proposed regulations would also create a new section on the OEHHA website that would provide detailed information on products and exposures. OEHHA would also have the authority to request that businesses provide more detailed information, including estimated levels of exposure for listed chemicals.
Limited Responsibility for Retailers: Retailers would be relieved from Proposition 65 liability in most circumstances and the responsibility for providing the requisite Proposition 65 warning would fall squarely on the manufacturer, distributer, producer and/or packager.
OEHHA will be accepting written comments on the proposed changes until April 8, 2015. Not surprisingly, OEHHA's proposed regulations have not been warmly received by industry and it is expected that affected businesses and trade associations will be submitting comments in opposition to these proposed amendments. Please click here and here to see the text of the proposed amendments.
New EPA Rule Regulates Coal Ash As Non-Hazardous
By E. Lynn Grayson
The U.S. Environmental Protection Agency (EPA) recently announced the first national regulations to provide for the safe disposal of coal combustion residuals (coal ash) from coal-fired power plants which will be regulated under the nonhazardous waste provisions of RCRA. In developing the new rule, the EPA evaluated more than 450,000 comments on the proposed rule, testimony form eight public hearings, and information gathered from three notices soliciting comment on new data and analyses.
According to EPA, improperly constructed or managed coal ash disposal units have resulted in the catastrophic failure of surface impoundments, damages to surface water, groundwater and the air. The first federal requirements for impoundments and landfills will address the following risks:
The closure of surface impoundments and landfills that fail to meet engineering and structural standards and will no longer receive coal ash;
Reducing the risk of catastrophic failure by requiring regular inspections of the structural safety of surface impoundments;
Restrictions on the location of new surface impoundments and landfills so that they cannot be built in sensitive areas such as wetlands and earthquake zones;
Protecting groundwater by requiring monitoring, immediate cleanup of contamination, and closure of unlined surface impoundments that are polluting groundwater;
Protecting communities from fugitive dust controls to reduce windblown coal ash dust; and
Requiring liner barriers for new units and proper closure of surface impoundments and landfills that will no longer receive CCRs.
This final rule also supports the responsible recycling of coal ash by distinguishing safe, beneficial use from disposal. In 2012, almost 40 percent of all coal ash produced was recycled (beneficially used), rather than disposed. Beneficial use of coal ash can produce positive environmental, economic and performance benefits such as reduced use of virgin resources, lower greenhouse gas emissions, reduced cost of coal ash disposal, and improved strength and durability of materials.
Coal ash, the second largest industrial waste stream, rose to national prominence following two high-profile spills: the December 2008 Kingston Fossil Plant spill in Tennessee and the February 2014 spill of 140,000 tons of coal ash and wastewater into North Carolina's Dan River.
Important Timeline of Coal Ash Assessment by EPA:
Dec. 22, 2008—Dike ruptures at the Kingston Fossil Plant in Harriman, Tenn., releasing 5.4 million cubic yards of coal ash slurry into surrounding area.
Jan. 14, 2009—At her Senate confirmation hearing, incoming EPA Administrator Lisa Jackson says the agency will review how it regulates coal ash.
June 21, 2010—The EPA proposes (75 Fed. Reg. 35,128) two possible ways for regulating coal ash—under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.
April 5, 2012—Frustrated with the slow pace of the rulemaking, environmental advocates sue the EPA over failure to complete a mandatory review of RCRA regulations every three years. They seek a deadline for final coal ash standards.
Jan. 31, 2014—Environmental advocates, coal ash recyclers, utilities and the EPA reach an agreement that requires the EPA to complete its coal ash regulations by Dec. 19.
Feb. 2, 2014—140,000 tons of coal ash and wastewater spill from a Duke Energy Corp. into North Carolina's Dan River.
Dec. 19, 2014—The EPA issues a final rule on the management and disposal of coal ash.
This new rule appears to be a good compromise both for industry and environmental groups. While the non-hazardous designation supports industry's position, the overall scope and regulatory focus on coal ash disposal and storage addresses concerns expressed repeatedly by citizens' groups.
Additional information about the new rule including a summary and history is available at http://www2.epa.gov/coalash/coal-ash-rule.
Further Asian Carp Barriers Proposed
By E. Lynn Grayson
Efforts continue to prevent Asian carp from entering Lake Michigan through the Chicago waterway system. The latest proposal under consideration by the Army Corps of Engineers (ACOE) is to install controls at the Brandon Road Lock and Dam near Joliet, Illinois. The ACOE is seeking public comments on this proposal originally identified as one of eight options outlined in the ACOE Great Lakes and Mississippi River Interbasin Study (GLMRIS) presented to Congress earlier this year.
The assistant secretary of the Army for civil works directed the ACOE to proceed with a formal evaluation of the viability of using the Brandon Road site as a point to prevent the upstream transfer of the carp and other aquatic nuisance species from the Mississippi River basin to the Great Lakes system. The site is downstream of the confluence of the Des Plaines River and the Chicago Sanitary and Ship Canal, which leads into Lake Michigan. A one-way control point at Brandon Road would "minimize the likelihood" of invasive species drifting into the Great Lakes basin during a flood as well as minimize the chances of "adverse impacts to existing waterway uses and users," according to the ACOE.
The public comment period extends through January 17. The Corps will hold public meetings on the plan December 6 near Joliet and December 9 in Chicago, with webcast and call-in options available. Comments can be submitted at the meetings, online through the GLMRIS website or by conventional mail.
More information on GLMRIS is available at http://www.glmris.anl.gov.
A teleconference for stakeholders to ask questions about efforts at the Brandon Road site is scheduled for November 25 at 11 a.m. EST. Dial-in: 1-888-621-9649 or 1-617-231-2734. Event ID: 417591.
Illinois Approves Fracking Rules
By Genevieve J. Essig
Following up on a previous post, in which we noted that, nearly a year after filing its first draft, the Illinois Department of Natural Resources (IDNR) had filed revised rules implementing the Hydraulic Fracturing Regulatory Act (225 ILCS 732) with the Illinois’ Joint Committee on Administrative Rules (JCAR), we report that JCAR has approved these proposed regulations. In September JCAR had extended the Second Notice period for the rulemaking for an additional 45 days, but it finally approved the rules yesterday. The final version of rules may now be filed with the Secretary of State for publication in the Illinois Register.
DOD Finalizes Amendments to DFARS Regarding the Storage, Treatment, and Disposal of Non-DOD Toxic and Hazardous Materials on DOD Sites
By Alexander J. Bandza
On September 30, 2014, the Department of Defense (DOD) published a final rule that amends Defense Federal Acquisition Regulation Supplement (DFARS) subpart 223.71 to better align the DFARS with the current provisions set forth in 10 U.S.C. 2692 concerning storage, treatment, and disposal of nondefense toxic and hazardous materials. This rule affects contractors and subcontractors performing contracts that involve the storage, treatment, or disposal of toxic or hazardous materials not owned by DOD on a DOD installation. The proposed rule was issued earlier this year and received no public comments.
Some of the larger changes are as follows:
- Under section 223.7102 (“Policy”), subsection (b) was added, which states that when storage of toxic or hazardous materials is authorized based on imminent danger, the storage provided is required to be temporary and must cease once the imminent danger no longer exists.
- Several new exemptions under section 223.7104 (“Exceptions”) were added, including:
- (a)(1), which added an exception to the prohibition for the storage, treatment, or disposal of materials used in connection with an activity of DOD or in connection with a service performed on a DOD installation for the benefit of DOD;
- (a)(9), which expanded the exception for the storage of toxic or hazardous materials not owned by DOD but is required or generated in connection with the authorized and compatible use of a facility of DOD, including the use of such a facility for testing material or training personnel; and
- (a)(11), which added an exception for the storage of material not owned by DOD when the Secretary of the military department concerned determines the material is required or generated in connection with the use of a space launch facility on a DOD installation or other land controlled by the United States.
- Section 223.7105 (“Reimbursement”) was added, which provides that the Secretary of Defense may assess a charge for any storage or disposal provided under the subpart.
- Under section 223.7106 (“Contract clause”), subsection (a) was revised to broaden the clause application to include solicitations and contracts that may require access to a DOD installation.
The final rule can be found here.
US EPA Issues First-Ever RCRA “Imminent and Substantial Endangerment” Order for Vapor Intrusion at Fort Gillem, Georgia
By: Alexander J. Bandza
In what appears to be the first-ever RCRA § 7003 “imminent and substantial endangerment” order for vapor intrusion, US EPA Region 4 issued an order yesterday for the US Army to take expedited corrective measures at the former Fort Gillem site in Forest Park, Georgia. The former Fort’s primary missions, which lasted from the 1940s until the base was closed in 2011 under the Base Realignment and Closure Act (BRAC) V, were training and materiel supply from World War II through the Persian Gulf conflict. As a result, the US EPA alleges that these activities resulted in soil, sediment, surface water, and groundwater contamination. Specifically, the US EPA alleges:
- off-site surface water, groundwater, and soil gas contamination by volatile organic compounds, particularly trichloroethene (TCE), tetrachloroethene and 1, 1,2,2-tetrachloroethane, originating from various Installation Restoration Program sites;
- “[r]elatively large contaminated groundwater plumes” with maximum concentrations exceeding 100 times the maximum contaminant level under the Safe Drinking Water Act; and
- the migration of TCE and other contaminants in groundwater beyond the Site boundary into the adjoining residential neighborhoods.
The work required by the Order, among other things: (i) would evaluate whether indoor and/or ambient air in residential and other properties surrounding the former installation contains hazardous contaminants and, if necessary, require that the Army mitigate unacceptable risks; and (ii) would identify and evaluate all private drinking water wells and springs in the area for hazardous contaminants and, if necessary, would require that the Army mitigate unacceptable risks.
In its press release, the US EPA recognizes that the US Army has been studying indoor air vapor intrusion at the Site, but the US EPA is “concerned at the service’s failure to implement the expeditious mitigation measures that are revealed by the study to be warranted for numerous residents.” Because “the Army has significantly deviated from the approved study work plan,” the US EPA “deems it necessary” to issue this RCRA § 7003 order.
A copy of the order is available here. The US EPA Region 4’s press release is available here.
TSCA Reform Dead for 2014?
By Steven M. Siros
Recent actions by Senator Barbara Boxer may have sounded the death knell for TSCA reform in 2014. On September 18, 2014, Senator Boxer unveiled what she characterized as revisions to a TSCA reform bill that had been being worked on by a bi-partisan committee within the Senate. Senator Boxer's proposed revisions included the full text of what Senator David Vitter characterized as a confidential draft version of the TSCA reform bill that was still being negotiated. According to a statement released by Senator Vitter, "[w]e've worked for over a year on bipartisan negotiations in good faith. In contrast, Senator Boxer has released our confidential proposal to the press. That speaks for itself—it's not a good faith effort to reach consensus but a press stunt/temper tantrum" Senator Vitter indicated in a public statement. As such, Senator Vitter has indicated that he will now go back to supporting Senate Bill 1009 as originally introduced in April 2013.
Senator Boxer's proposed revisions would eliminate any preemptive effect of TSCA on state and/or local regulations, resulting in a continuing patchwork of inconsistent state regulations. Senator Boxer's proposed revisions would also change the "unreasonable risk or harm to human health or the environment" trigger to state that a chemical must "not pose harm to human health or the environment."
Not surprisingly, Senator Boxer's proposed revisions have been widely applauded by environmental advocacy groups and strongly criticized by industry and the American Chemistry Council. In any event, both sides of the issue will likely conceed that TSCA reform is dead until after the November 2014 elections.
Celebrate Wilderness Week 2014
By E. Lynn Grayson
This week celebrates the 50th anniversary of the U.S. Wilderness Act (Act) signed by Lyndon Johnson in 1964 to provide protected places of solace away from the noise, hustle, pollution and mechanization of modern life. Wilderness areas are the nation's best reminder of the untrammeled open spaces that existed before the arrival of the first European settlers. No roads, vehicles or permanent structures are allowed in these areas and logging, mining and motorized travel are prohibited. A wilderness area designation is the highest level of protection the federal government can bestow on any lands.
The Act created the National Wilderness Preservation System originally establishing 54 wilderness areas in 13 states. Today there are 758 wilderness areas in 44 states and Puerto Rico. Approximately 5% of the United States land mass is protected as wilderness areas or about 109,511,038 acres.
Upon signing the Act 50 years ago, President Johnson initiated a call to action that remains equally important today: "To the pioneer of history, the wilderness was a foe to be conquered. Today's pioneer has a new purpose to preserve some remnants of that wilderness from the onrush of modern civilization."
Learn more about Wilderness Week and activities scheduled in Washington, D.C. and throughout the U.S. at http://www.wilderness50th.org/wildernessweek.php
EPA May Garnish Wage Without Court Approval
By E. Lynn Grayson
EPA recently announced it plans to take final action later this year to authorize collection of non-tax debts by garnishing wages which may occur without a court order. Public comments submitted to date on EPA's proposed action express concern that the Agency may be exceeding its authority and that such actions may deprive individuals of their due process rights.
The EPA has claimed this new authority by citing the Debt Collection Improvement Act of 1996, which gives all federal agencies the power to conduct administrative wage garnishment, provided that the agency allows for hearings at which debtors can challenge the amount or the terms of a repayment schedule. Administrative Wage Garnishment (AWG) would apply only after EPA attempts to collect delinquent debts and after Treasury attempts to collect delinquent debts through other means. The agency would provide notice "prior to any action," giving the debtor the opportunity to "review, contest or enter into a repayment agreement."
EPA's proposal has been actively opposed by a number of watch dog and industry organizations. In addition, members of the House and Senate have argued that the proposed action is an improper expansion of EPA authority and many note it could hurt public impressions of EPA.
EPA's response has been that the Agency is proposing to do what 30 other federal agencies have done and what Congress directly empowered all agencies to do: collect debts owed to the federal government in a responsible and fair way.
EPA's proposed rule to amend its claims collection standards to include AWG can be viewed at 79 Fed. Reg. 37,704.
The amount EPA has collected in fines has increased since President Obama took office with $252M received in 2012, up from $96M in 2009. As Dan Goldbeck of the American Action Forum appropriately noted ". . . the order is certainly controversial and is a strong reminder that even a few pages of the Federal Register can pack serious administrative consequences."
EPA Proposes Hazardous Waste Delisting For John Deere
By E. Lynn Grayson
EPA recently proposed to exempt 600 tons of wastewater treatment sludge filter cake from regulation as a RCRA hazardous waste. 79 FR 49253 (August 20, 2014). EPA's action follows John Deere's filing of a delisting petition on January 28, 2014 seeking to exempt these F006/F019 wastes generated at the John Deere Des Moines Works in Ankeny, Iowa.
John Deere (through its consultant) petitioned EPA to exclude from the list of hazardous wastes contained in 40 CFR 261.31, F006/F019 Waste Water Treatment Sludge Filter Cake from dewatering sludge generated by the plant wastewater treatment facility. The filter cake is subject to two waste listings as it is the result of treating a mixture of wastewater from different manufacturing processes.
The petitioned waste does not meet the criteria for which F006 was listed (i.e., cadmium, hexavalent chromium, nickel, cyanide (complexed)) or for which F019 was listed (i.e., hexavalent chromium, cyanide (complexed)) and that there are no other factors which would cause the waste to be hazardous. Specifically, the petition request is for a standard exclusion for 600 tons per calendar year of filter cake.
If approved, these wastes would be conditionally excluded from RCRA hazardous waste regulations. Even if delisted, the sludge would be disposed of at a RCRA Subtitle D landfill permitted by Iowa Department of Natural Resources to manage industrial solid wastes.
EPA is accepting comments on this proposed action until September 19, 2014.
Appellate Court Rejects Challenge To NPL Listing
By Steven M. Siros
A recent decision from the U.S. Court of Appeals for the D.C. Circuit rejected a challenge to U.S. EPA's decision to list a site on the National Priorities List ("NPL"), finding that although the petitioner had standing to challenge the NPL listing, it impermissibly sought to rely on information that was not contained in the administrative record and failed to demonstrate that U.S. EPA's decision to list the site was arbitrary and capricious. In CTS Corp. v. EPA, the petitioner, CTS Corporation, challenged U.S. EPA's decision to list a former manufacturing facility on the NPL. The site in question (which was the subject of an recent Supreme Court decision finding that CERCLA's Section 9658 did not preempt a state statute of repose (see CTS Corp. v. Waldburger)) was added to the NPL at least in part on the basis of groundwater contamination that had allegedly migrated from the site into an adjacent residential neighborhood. U.S. EPA conceded that but for the residential groundwater contamination, the site's Hazard Ranking System score would not have exceeded the 28.5 threshold required to list a site on the NPL.
As part of its challenge to U.S. EPA's listing decision, CTS argued that U.S. EPA had failed to adequately investigate possible alternative sources of the residential groundwater contamination. The court rejected that argument, noting that the handful of challenges that CTS did timely raise concerning alternative sources amounted to "little more than methodological nit-picking". The court was more critical, however, of CTS's effort to present new evidence in the form of an expert report that purported to critique a prior U.S. EPA isotope analysis of the groundwater samples that were taken from the residential wells. The court rejected what the court characterized as CTS's attempt to "bypass the administrative record" noting that it was "black-letter administrative law that in an [APA] case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision". The court therefore denied CTS' petition challenge to the NPL listing.