Relates to laboratory testing and sample analysis of mineral resources

BILL NUMBER:S7169

Title of bill

An act to amend the environmental conservation law, in relation to environmental laboratory tests or sample analyses for mineral resources permits

Purpose or general idea of bill

This bill requires that environmental testing under Article 23 ("Mineral Resources") must be performed by certified environmental laboratories, as is currently the case with testing under Articles 17 (water pollution), 19 (air pollution) and 27 (solid and hazardous waste).

Summary of provisions

Bill §1 amends §3-0119 of the Environmental Conservation Law (ECL) to require that any laboratory tests or sample analysis required pursuant to ECL Article 23 for which the Commissioner of Health issues certificates of approval pursuant to Public Health Law §502 shall be conducted by a laboratory which has been issued a certificate of approval.

Effects of present law which this bill would alter

ECL §3-0119 currently provides that any laboratory tests or sample analysis required pursuant to ECL Articles 17, 19 or 27 for which the Commissioner of Health issues certifications under the Environmental Laboratory Approval Program (ELAP) must be conducted by an ELAP-certified laboratory. This bill will extend this requirement to environmental samples taken pursuant to Article 23.

Justification

Since 1983, ECL §3-0119 has required that all laboratory tests or sample analyses required for air, water and solid and hazardous waste permits must be conducted by an environmental laboratory certified under Public Health Law §502, if the Department of Health issues certificates of approval for the applicable analyte or category of testing. Under the ELAP program, DOH may issue certificates of approval covering laboratory tests within such categories as wastewater, potable waters, sediments, solid wastes, and air.

To obtain approval, the laboratory must demonstrate that its staff is qualified to conduct such tests, must use state-approved analytical methods and quality assurance procedures, and must perform satisfactorily in proficiency testing and a biennial on-site inspection. The original law was enacted to address concerns that allowing environmental permit-holders to conduct "self-monitoring" provided abundant opportunities for manipulation of sample quality or inaccurate testing.

Recent developments in technology have increased the potential impacts of mineral extraction on public health and the environment. In particular, high-volume hydraulic fracturing (HVHF) in deeper shale formations could result in significant volumes of wastewater, drill cuttings and sediments potentially contaminated with toxic substances, pyrite and naturally occurring radioactive material (NORM). DEC's proposed HVHF regulations require that such wastes must be tested, but

- except for those water tests that would be required under a State Pollutant Discharge Elimination System Permit under ECL Article 19 - no ELAP certification or any other testing standards are specified.

It is as important to provide for quality assurance and control in tests of drilling wastes and byproducts as in testing under those programs currently covered by §3-0119. Requiring that samples that require testing under an Article 23 permit must be analyzed in an ELAP-certified laboratory will help ensure that potentially contaminated wastes are handled and disposed of safely and appropriately.

Prior legislative history

New bill.

Fiscal implications for state and local governments

None.

Effective date

First day of January after becoming law; applicable to all laboratory tests or sample analyses submitted for testing on or after such date.