Triangle NoTES - April 2016

 Triangle NoTES

April 2016

Discussion of points raised by an attorney representing a couple of industries concerned over single source requirements.

I recently was considering the viability of the renewal of our NELAP accreditation and as a part of that process I sent an email to several clients which had in the past been required to use an accredited laboratory. Without the Method 25 audits and with the position of the NJ DEP that audits are required, the amount of revenue generated in that state compared to the costs of accreditation now have a significant differential. The options are varied: drop the accreditation until the audits are available, spend more money than is made from work in the state, charge a premium for work in the state to cover the accreditation costs, have a minimum billing for work in the state, or some similar guaranteed level of billing to at least break even. None of the options seems appealing, but there has to be a decision made on this issue soon. This is where the call from the attorney makes it even more difficult.

It seems the question I posed to some of our clients found its way to this attorney's desk along with some of my newsletters. The attorney wanted to know about my experiences with the accreditation programs from the first days in the early 1990s where we pressured SCAQMD to give us an accreditation through to the present. It seems the push to have the state accreditation programs pay for themselves, as well as having a restriction on only using accredited companies, has created a possible legal conundrum for a few of the states. Some industries believe the concern makes sense when taken as an overview. Most of the states only accredit the water sampling/analysis entities, so those states are dealing with very few niche methods. Of the few states who do accredit air sampling/analysis, most only accredit the much more common methods, such as the TO methods. The few states which provide accreditation for the multitude of air methods are where the problem seems to lie because it creates more sole source provider situations. This creates a possible case of unintended consequences that could also be taken as a planned action to create a monopoly under certain conditions.

The view seems to be that since there is a requirement for an accreditation from a state in order to work within that state on compliance projects, situations where the sole source monopolies or possibly no sources for the service at all are much more likely. The fact that the accreditation programs are becoming more income generation driven makes this problem take on a greater concern. When the costs were more reasonable the sole source or no source problems, while still very much a concern, did not have the more negative appearance it does now with the much higher fees being imposed. From a business perspective it is much easier to justify investing the cost of a few samples to become accredited as opposed to investing the cost of a few hundred, so I can see where the increased costs could have decreased the competition for some of the methods. The fact that the costs of even a secondary accreditation based on the accreditation by another state in the NELAC program are the same as a primary accreditation, reinforces the appearance of pure income generation as the goal. The cost structure would also tend to benefit the larger companies, which by being able to pay even higher fees could achieve more of a monopoly status within the state through the price exclusion of smaller competitors. This situation leads to the position by some industries that they are being required in certain cases to use one specific vendor, which may charge higher prices due to the lack of competition combined with the increased costs of accreditation. This is hard to refute given that there may be no competition due at least in part to the costs of accreditation. The appearance of a sole source situation opens the door to resist compliance testing connected to any sole source. The lack of any accredited source for certain monitoring places the state in a position where is cannot require that monitoring or if it allows a vendor without accreditation it negates the strict limit for only using accredited vendors in that state.

I am wondering what effect, if any, such litigation would have on the national accreditation program moving forward. The air methods seemed to have stalled somewhat compared to the water methods nationally and some future requirement to have two or more accredited sources for any work could slow that even farther. Of course, the requirement for accreditation within the state could be waved, but that too would seem to be counter productive for the accreditation program nationally. Because of these concerns I agreed to provide the requested information in exchange for the ability to freely discuss this in my newsletters in the hopes of some solution being found outside of litigation, which I feel would not seem to benefit anyone, especially not in the short term.

I know things of this nature tend to move slowly, or at least I hope the litigation moves forward slowly, but I am afraid the final outcome may be decided in the courts rather than with the groups involved. I hope it does not have the effect of limiting progress in the goal of improving our environment over the prior years. If it does have an impact, I cannot see it being anything other than another unintended consequence rather than some planned situation.

The new website is now up and running with all of the additional items we have meant to include over the years but did not because the hosting company was bought or sold yet again. I have been told by some of the younger people working on the project that we have an Easter Egg on the site, which is far different from the Easter Egg from my generation. Considering that my first programming was on the old Burroughs cards in Fortran, that mine was only the second engineering class to use calculators instead of slide rules, and my personal computer was a Commodore 64 with both a floppy and tape drive, the generational differences are significant.

The new website address is:

Triangle Environmental Services, Inc.