Certify Mineral Lab Tests

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

This bill requires that environmental testing under Article 23 ("Mineral Resources") of the environmental conservation law must be performed by a certified environmental laboratory, as is currently the case with test- ing under Articles 17 (water pollution), 19 (air Pollution) and 27 (solid and hazardous waste).

Summary of provisions

Section 1. Amends section 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 a certificate of approval pursuant to Public Health Law

§ 502 shall be conducted by a laboratory which has been issued a certif- icate of approval.

Section 2. Effective date.

Existing law

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-certi- fied laboratory. This bill will extend this requirement to environmental samples taken pursuant to Article 23.

Justification

Since 1963, ECL E 3-0119 has required that all laboratory tests or sample analyses required for air, water and solid and hazardous waste permits must he 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 satisfactori- ly 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 opportu- nities 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 partic- ular, highly-volume hydraulic fracturing (HVHF) in deep 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 test- ing under a permit issued pursuant to Article 23 must be analyzed in an ELAP-certified laboratory will help ensure that potentially contaminated wastes are handled and disposed of safely and appropriately.

Legislative history

2017-19: 51644 - ENVIRONMENTAL CONSERVATION 2015-1.6: S1737/A1194 Environmental Conservation/ Environmental Conser- vation 2013-14: S1984/A2188 Environmental Conservation Committee/ 3rd Reading Calendar 2012: S7169/A10037 - Environmental Conservation Committee/ '-rd Reading Calendar

Fiscal implications

None to state.

Effective date

This act shall take effect on the first of January next succeeding the date on which it shall have become a law, and shall apply to all labora- tory tests or sample analyses submitted for testing on or after such date.