On May 5, 2020, the State Water Resources Control Board (State Water Board) adopted regulations to update the Environmental Laboratory Accreditation Program (ELAP), which oversees the accreditation of environmental testing laboratories that test drinking water, wastewater discharges, and hazardous waste cleanup sites for compliance with state water quality standards.  Under the adopted regulations, laboratories are required to implement “The NELAC Institute” (TNI) Standard, a national accreditation standard for laboratory compliance, which will replace the current, state-specific accreditation standard.  Specifically, the regulations incorporate by reference the 2016 TNI Standard, Volume 1: Management and Technical Requirements for Laboratories Performing Environmental Analysis (2016 TNI Standard), but with two California-specific exceptions to the 2016 TNI Standard regarding proficiency testing.  There is a three-year delayed implementation period before laboratories will be required to comply with the 2016 TNI Standard.

The new accreditation standard is intended to address a lack of uniform testing practices across laboratories and to improve consistent data quality.  While stakeholders disputed the utility of the 2016 TNI Standard for purposes of ensuring data quality, stakeholders and agency staff agreed there was a need for a more effective accreditation program and, specifically, a need to improve ELAP’s ability to consistently assess the quality and competency of laboratories.

Stakeholders also expressed concern regarding the agency’s estimate of the cost of implementing the 2016 TNI Standard.  The State Water Board analyzed costs for small, medium, and large laboratories, but did not distinguish between costs for publicly- and privately-owned laboratories.  State Water Board staff maintained that costs could be offset by redistributing some local agency staff responsibilities to third parties or state agency partners.  In response to stakeholder concerns expressed at the adoption hearing, State Water Board staff suggested that existing annual reporting requirements could include an update on agency progress under the revised ELAP regulations.

Since the adoption of the regulations, ELAP has issued notices for two stakeholder meetings scheduled for the week of June 8, 2020, regarding clarification on the third-party assessment requirement, as well as changes to the fee schedule for ELAP.  The fee schedule was not addressed in the recently adopted regulations and will proceed as a separate rulemaking proceeding.  The adopted regulations are expected to take effect on October 1, 2020; however, to date, the State Water Board has not conveyed the adopted regulations to the Office of Administrative Law for review.

The rulemaking file, including text of the adopted regulations, is available here.  The archived video of the hearing in which the State Water Board considered the regulations for adoption is available here, beginning at the 5:14:45 mark.

For more information on ELAP and implementation of the new standard, please contact Michelle Chester at mchester@somachlaw.com.

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