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        PRIOR PRINTER'S NOS. 2694, 2736               PRINTER'S NO. 2921



No. 2044 Session of 2001


           NOVEMBER 19, 2001

                                     AN ACT

     1  Establishing within the Department of Environmental Protection
     2     an accreditation program for environmental laboratories; and
     3     providing for whistleblower protection.

     4                         TABLE OF CONTENTS
     5  Section 1.  Short title.
     6  Section 2.  Definitions.
     7  Section 3.  Establishment of program.
     8  Section 4.  Powers and duties.
     9  Section 5.  Powers and duties of Environmental Quality Board.
    10  Section 6.  Requirements of certificate of accreditation.
    11  Section 7.  Interim requirements.
    12  Section 8.  Advisory committee.
    13  Section 9.  Unlawful conduct.
    14  Section 10.  Penalties.
    15  Section 11.  Records.

     1  Section 12.  Whistleblower protection.
     2  Section 13.  Continuation of existing rules and regulations.
     3  Section 14.  Repeals.
     4  Section 15.  Effective date.
     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7  Section 1.  Short title.
     8     This act shall be known and may be cited as the Environmental
     9  Laboratory Accreditation Act.
    10  Section 2.  Definitions.
    11     The following words and phrases when used in this act shall
    12  have the meanings given to them in this section unless the
    13  context clearly indicates otherwise:
    14     "Accreditation."  A determination by the Department of
    15  Environmental Protection that an environmental laboratory is
    16  capable of performing one or more classes of testing or analysis
    17  of environmental samples in accordance with this act.
    18     "Certificate of accreditation."  A document issued by the
    19  Department of Environmental Protection certifying that an
    20  environmental laboratory has met standards for accreditation.
    21     "Department."  The Department of Environmental Protection of
    22  the Commonwealth.
    23     "Environmental Hearing Board."  The board established under
    24  the act of July 13, 1988 (P.L.530, No.94), known as the
    25  Environmental Hearing Board Act.
    26     "Environmental laboratory."  A facility engaged in the
    27  testing or analysis of environmental samples.
    28     "Environmental Quality Board."  The board established under
    29  section 1920-A of the act of April 9, 1929 (P.L.177, No.175),
    30  known as The Administrative Code of 1929.
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     1     "Environmental sample."  A solid, liquid, gas or other
     2  specimen taken for the purpose of testing or analysis as
     3  required by an environmental statute.
     4     "Environmental statute."  A statute administered by the
     5  Department of Environmental Protection relating to the
     6  protection of the environment or of public health, safety and
     7  welfare.
     8     "Laboratory supervisor."  A technical supervisor of an
     9  environmental laboratory who supervises laboratory procedures
    10  and reporting of analytical data.
    11     "NELAC."  The National Environmental Laboratory Accreditation
    12  Conference.
    13     "NELAP."  The National Environmental Laboratory Accreditation
    14  Program.
    15  Section 3.  Establishment of program.
    16     (a)  Establishment.--The department shall establish an
    17  accreditation program for environmental laboratories.
    18     (b)  Accreditation.--An environmental laboratory must be
    19  accredited under this act and be in compliance with all the
    20  provisions of this act in order to generate data or perform
    21  analyses to be used to comply with an environmental statute.
    22     (c)  Testing and analysis.--All testing and analysis
    23  requirements of an environmental statute shall be performed by
    24  an environmental laboratory accredited under this act. Testing
    25  and analysis shall be performed in accordance with the
    26  requirements of this act, the environmental statutes and any
    27  conditions imposed by the department.
    28  Section 4.  Powers and duties.
    29     The department shall have the following powers and duties:
    30         (1)  Establish, administer and enforce an environmental
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     1     laboratory accreditation program which shall include
     2     accreditation standards necessary for a State certification
     3     program. It shall also include a NELAP accreditation program
     4     for those laboratories seeking this certification. It may
     5     also include any other specific or broad-based Federal or
     6     State accreditation program for certification.
     7         (2)  Issue, renew, deny, revoke, suspend or modify
     8     certificates of accreditation to environmental laboratories
     9     in accordance with regulations adopted by the Environmental
    10     Quality Board.
    11         (3)  Impose terms or conditions on accreditation as
    12     necessary to implement and enforce this act.
    13         (4)  Conduct inspections and tests or samplings,
    14     including the examination and copying of records and data
    15     pertinent to a matter under investigation. Duly authorized
    16     agents and employees of the department may, at reasonable
    17     times, enter and examine property, facilities, operations and
    18     activities subject to regulation under this act.
    19         (5)  Issue orders and initiate proceedings as necessary
    20     to implement and enforce this act.
    21         (6)  Require a fee for the processing of an application
    22     for a certificate of accreditation, including the issuance,
    23     renewal, modification or other action relating to the
    24     certificate in an amount sufficient to pay the department's
    25     cost of implementation of the accreditation program.
    26         (7)  Provide technical assistance and advice to persons
    27     and environmental laboratories subject to this act.
    28         (8)  Contract with third parties to inspect and monitor
    29     environmental laboratories.
    30         (9)  Cooperate with appropriate Federal, State,
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     1     interstate and local government units and private
     2     organizations to implement this act.
     3         (10)  Allow the use of experimental procedures, on a
     4     case-by-case basis, to satisfy the testing or analysis
     5     requirements established under an environmental statute.
     6         (11)  Seek approval as an accrediting authority from
     7     NELAP.
     8  Section 5.  Powers and duties of Environmental Quality Board.
     9     (a)  General rule.--The Environmental Quality Board shall
    10  adopt regulations as necessary to implement this act, to include
    11  the establishment of:
    12         (1)  Testing or analysis to be conducted by an
    13     environmental laboratory.
    14         (2)  Allowable fees for environmental laboratories.
    15         (3)  Requirements for education, training and experience
    16     of laboratory supervisors.
    17         (4)  Criteria and procedures to be used by the department
    18     to accredit environmental laboratories, which may include
    19     proficiency test samples and onsite audits.
    20     (b)  Accreditation.--An environmental laboratory shall be
    21  accredited pursuant to this act and in compliance with the
    22  provisions of this act in order to generate the data and perform
    23  analysis to be used to comply with an environmental statute.
    24     (c)  General certificate program.--The Environmental Quality
    25  Board may adopt regulations that establish a general certificate
    26  of accreditation program or certificates of accreditation-by-
    27  rule.
    28     (d)  Unique needs.--To the extent possible, the Environmental
    29  Quality Board shall establish requirements and procedures that
    30  address the unique needs of small businesses, municipalities
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     1  and, municipal authorities AND IN-HOUSE LABORATORIES.             <--
     2  Section 6.  Requirements of certificate of accreditation.
     3     (a)  Forms.--Applications, certificates and other documents
     4  shall be in a form prescribed by the department.
     5     (b)  General requirements.--An environmental laboratory shall
     6  have the staff, management structure, equipment, quality
     7  assurance and quality control procedures and recordkeeping
     8  procedures necessary to ensure that the environmental laboratory
     9  generates valid and accurate test results in accordance with all
    10  conditions of accreditation and this act.
    11     (c)  Laboratory supervisor.--Testing, analysis and reporting
    12  of data by an accredited laboratory shall be under the direct
    13  supervision of a laboratory supervisor. The laboratory
    14  supervisor shall certify that each test or analysis is accurate
    15  and valid and that the test or analysis was performed in
    16  accordance with all conditions of accreditation. The department
    17  may disqualify a laboratory supervisor who is responsible for
    18  the submission of inaccurate test or analysis results.
    19     (d)  Access to records and data.--An accredited laboratory
    20  shall provide the department with access to inspect records and
    21  data maintained under this act and to conduct tests and sampling
    22  related to inspections.
    23  Section 7.  Interim requirements.
    24     (a)  Registration.--All environmental laboratories shall
    25  register with the department within six months of the effective
    26  date of this act, on a registration form prepared by the
    27  department. An environmental laboratory which begins operations
    28  in this Commonwealth after this date shall register with the
    29  department before beginning operations.
    30     (b)  Time for application.--An environmental laboratory shall
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     1  apply for accreditation within six months after the
     2  Environmental Quality Board establishes an accreditation
     3  requirement by regulation for a type of laboratory. The
     4  submission of an application shall provide interim authorization
     5  to continue operations until the department takes final action
     6  on the application.
     7     (c)  NELAP accreditation.--An environmental laboratory may
     8  apply to the department for NELAP accreditation after the
     9  department is approved as an accrediting authority by NELAP. The
    10  department may grant NELAP accreditation to a laboratory that
    11  meets the requirements of this act and the most current version
    12  of the NELAC standards that are hereby incorporated by
    13  reference.
    14     (d)  Temporary fees.--Until regulations are promulgated under
    15  this act, the following fees shall be charged:
    16         (1)  Five thousand dollars for the processing of an
    17     application for NELAP accreditation.
    18         (2)  Fifty dollars for the processing of an application
    19     for registration.
    20  Section 8.  Advisory committee.
    21     The department shall appoint a Laboratory Accreditation
    22  Advisory Committee to provide technical assistance under this
    23  act. The committee shall consist of 11 members, including the
    24  following:
    25         (1)  One representative of a municipal authority.
    26         (2)  One representative from a commercial environmental
    27     laboratory.
    28         (3)  One representative from an industrial environmental
    29     laboratory.
    30         (4)  One representative from an academic laboratory.
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     1         (5)  One representative from a small environmental
     2     laboratory.
     3         (6)  One environmental engineer.
     4         (7)  One member of an association of community water
     5     supply systems.
     6         (8)  One member of an association of wastewater systems.
     7         (9)  One member with technical expertise in the testing
     8     and analysis of environmental samples.
     9         (10)  Two members of the general public.
    10  Section 9.  Unlawful conduct.
    11     (a)  General rule--It shall be unlawful for a person to
    12  violate or to cause or assist in the violation of this act, to
    13  fail to comply with an order or condition of accreditation
    14  within the time specified by the department or to hinder,
    15  obstruct, prevent or interfere with the department in the
    16  performance of its duties under this act.
    17     (b)  Refusal of accreditation.--The department may refuse to
    18  issue a certificate of accreditation to an environmental
    19  laboratory which has demonstrated a lack of intention or ability
    20  to comply with this act or engaged in unlawful conduct or which
    21  has an employee, officer, contractor, agent or other person set
    22  forth in regulation who has engaged in unlawful activity under
    23  this act unless the applicant demonstrates to the satisfaction
    24  of the department that the unlawful conduct is being or has been
    25  corrected.
    26     (c)  Denial of access.--It shall be unlawful for an
    27  accredited laboratory or other person subject to regulation
    28  under this act to deny the department access to make inspections
    29  and conduct tests or sampling, including the examination and
    30  copying of books, papers, records and data pertinent to any
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     1  matter under investigation pursuant to this act. Failure to
     2  provide the department with access shall result in the immediate
     3  suspension of any accreditation of the laboratory. Upon notice
     4  from the department, the laboratory shall immediately cease
     5  testing or analysis of environmental samples. The department may
     6  revoke an accreditation for failure to provide the department
     7  with access to make inspections and conduct tests or sampling,
     8  including the examination and copying of books, papers, records
     9  and data pertinent to any matter under investigation pursuant to
    10  this act.
    11     (d)  Notice.--The environmental laboratory shall notify each
    12  of its customers in writing within 72 hours of receipt of the
    13  department's notice if the department suspends or revokes in
    14  whole or in part a certificate of accreditation. The notice
    15  shall be on a form and in a manner approved by the department.
    16  Section 10.  Penalties.
    17     (a)  Criminal penalties.--
    18         (1)  A person who knowingly, willfully or recklessly
    19     misrepresents that a test or an environmental sample is
    20     accurate or was performed in accordance with procedures
    21     authorized pursuant to this act commits a misdemeanor of the
    22     third degree and, upon conviction, shall be subject to a fine
    23     of not less than $1,250 nor more than $12,500 or to
    24     imprisonment for a period of not more than one year, or both,
    25     for each separate offense.
    26         (2)  A person who knowingly, willfully or recklessly
    27     performs or reports an inaccurate test or analysis of an
    28     environmental sample commits a misdemeanor of the third
    29     degree and, upon conviction, shall be subject to a fine of
    30     not less than $1,250 nor more than $12,500, or to
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     1     imprisonment for a period of not more than one year, or both,
     2     for each separate offense.
     3         (3)  A person who knowingly, willfully or recklessly
     4     misrepresents that an environmental laboratory holds a
     5     certificate of accreditation under this act commits a
     6     misdemeanor of the third degree and, upon conviction, shall
     7     be subject to a fine of not less than $1,250 nor more than
     8     $12,500, or to imprisonment for a period of not more than one
     9     year, or both, for each separate offense.
    10     (b)  Administrative penalties.--
    11         (1)  In addition to any other remedy available at law or
    12     equity, the department may assess an administrative penalty
    13     for a violation of this act. The penalty may be assessed
    14     whether or not the violation was willful or negligent. When
    15     determining the amount of the penalty, the department shall
    16     consider the willfulness of the violation, the damage or
    17     injury, or threat of damage or injury, to public health or
    18     the environment, the costs to the department for
    19     investigation and enforcement, the economic benefit of the
    20     violation to the person and other related factors. The
    21     department shall inform the person of the amount of the
    22     penalty. The administrative penalty shall not exceed $5,000
    23     per day per violation.
    24         (2)  Every day a violation continues shall be a separate
    25     violation.
    26         (3)  The amount of the penalty assessed after a hearing
    27     before the Environmental Hearing Board, or after waiver of
    28     the right to appeal the assessment, shall be payable to the
    29     Commonwealth and collectable in any manner provided at law
    30     for collection of debts. If any person liable to pay any such
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     1     penalty neglects or refuses to pay the penalty after demand,
     2     the amount of the penalty, together with interest and cost
     3     that may accrue, shall constitute a judgment in favor of the
     4     department upon the property of such person from the date it
     5     has been entered and docketed of record by the prothonotary
     6     of the county in which the property is situated. The
     7     department may, at any time, transmit to the prothonotaries
     8     of any county in which the person holds property, certified
     9     copies of all such judgments, and it shall be the duty of
    10     each prothonotary to enter and docket the judgment of record
    11     in his or her office and to index the judgment as judgments
    12     are indexed, without requiring the payment of costs by the
    13     department.
    14     (c)  Concurrent penalties.--Penalties and other remedies
    15  under this act shall be concurrent and shall not prevent the
    16  department from exercising any other available remedy at law or
    17  equity.
    18     (d)  Rebuttable presumption.--Failure of an environmental
    19  laboratory or laboratory supervisor to maintain adequate records
    20  or proficiency test samples as required creates a rebuttable
    21  presumption that the test or analysis was not conducted as
    22  required.
    23     (e)  Falsifying results.--It shall be unlawful to falsify the
    24  results of testing or analysis of environmental samples or to
    25  violate the provisions of 18 Pa.C.S. § 4903 (relating to false
    26  swearing) or 4904 (relating to unsworn falsification to
    27  authorities) in the context of the submission of the results of
    28  testing and analysis of environmental samples under an
    29  environmental statute.
    30  Section 11.  Records.
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     1     Records required under this act shall be maintained for five
     2  years unless otherwise specified in regulation.
     3  Section 12.  Whistleblower protection.
     4     An employee of an environmental laboratory covered by this
     5  act shall be deemed to be an employee under the act of December
     6  12, 1986 (P.L.1559, No.169), known as the Whistleblower Law, in
     7  regard to good faith reports of potential violations of this
     8  act. Environmental laboratories covered by this act shall be
     9  deemed to be an employer under the Whistleblower Law in regard
    10  to good faith reports of potential violations of this act.
    11  Section 13.  Continuation of existing rules and regulations.
    12     All existing rules and regulations promulgated pursuant to
    13  any environmental statute remain in full force and effect until
    14  superseded and repealed by the rules and regulations promulgated
    15  pursuant to this act.
    16  Section 14.  Repeals.
    17     All acts and parts of acts are repealed insofar as they are
    18  inconsistent with this act.
    19  Section 15.  Effective date.
    20     This act shall take effect immediately.

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