STATE OF NEW YORk: DEPARTMENT OF HEALTH

IN THE MATTER
OF
Howard A. Zucker, M.D., J.D., as First Deputy
Commissioner of Health, and Acting Commissioner,
to determine the action to be taken with respect to:
PACE ANALYTICAL SERVICES, INC.
STIPULA11ON
2190 Technology Drive
Schenectady, New York 12309
AND
Respondent,
ORDER
arising out of alleged violations of Article 5, Title I of the
Public Health Law of the State of New York and Title 10
(Health) of the Official Compilation of Codes, Rules and
Regulations of the State at New York (NYCRR).
WHEREAS, the New York State Department of Health (the Department) has made
findings based upon the investigation of Pace Analytical Services, Inc. (the Respondent);
and
WHEREAS, the Departments investigatory findings included alleged violations of
ArticJe 5. Titie I of the Public Health Law of the State of New York (PHL) and Part 55 of 10
NYCRR by the Respondent; and
WHEREAS, the Department and the Respondent have engaged ri settlement
discussions: and
WHEREAS, the parties wish to resolve this matter by means of a settlement instead
of an adversarial administrative hearing and/or litigation; and
WHEREAS, Respondert has ccoperated with the Department and, among other
things, is providing written notification to its customers with regard to the matters giving rise
to this settlement; and
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WHEREAS, the Departments investigation found that acts gMng rise to the violations
were initially the result of practices of Paces predecessor, Northeast Analytical, Inc. (74EA).
NOW, THEREFORE 1 IT IS STIPULATED AND AGREED AS FOLLOWS:
1. The Respondent acknowledges that the Department has jurisdiction in this
matter.
2. This matter Is settled and discontinued with prejudice. The Department shall
not pursue further administrative or civil enforcement action against the Respondent in
connection with the allegations of violating 502(2) of the PHL and Part 55 of 10 NYCRR
as set forth in paragraph 3 below.
3. Investigative Findings:
a. The Department finds and the Respondent admits that in violation of

502(2) of the PHL and 10 NYCRR 55-22(c), the Respondent and NEA, which the
Respondent acquired on or about November 1, 2010, failed to ensure that their laboratory
examinations performed at 2190 Technology Drive, Schenectady, New York (Schenectady
slt&) conformed to certain conditions under which their certificates of approval were granted,
as evidenced by repeat non-conformance observed during on-site assessments held on
March 12. 2009, March 17, 2011, and May 2,2013.
b. These onsite assessments determined that NEA, between the dates of
February 9, 2006 and October 29, 2010, and the Respondent, between the dates of
November 1, 2010 through August 29, 2013, failed to employ the approved method EPA
SW846 3520, as listed on the laboratories certificates of approval for the Schenectady site,
to conduct analyses on samples reported by NEA on 1772 reports submitted to clients, and
by the Respondent on 941 reports submitted to clients.
a Spe&icaliy, the method EPA-SW846 3520 requires the use of a
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water-misc4bsolvent (e.g., acetone or methanol) for a spiking solution to assess the efficacy
of the exiractiori procedure prior to performing extraction of the analytes. The Respondent
and NEA. however did not use a water miscible solvent in performing their EPA-5W646 3520
tests, but Instead used an Immiscible solvent (e.g., hexane), which may have resulted in an
under-reporting of the arialyte(s) recovered in the sample(s) NEA End the Respondent
reported to their clients.
4. Pursuant to

12 and 206 of the PHL, the Department imposes a civil

monetary penalty of Two Hundred Seventy-Five Thousand Dollars ($275000.00) upon the
RespondenL In addition, the Respondent has agreed to provide the Department an additional
Two Hundred Fifty Thousand Dollars ($250,000) pursuant to State Finance Law (SFL)

4(1 1)(b)(6) to be used to prevent, abate, restore, mitigate, or control identifiable instances of
prior or ongoing water, land or air pollution in Schenectady County as a benefit to the
community. The Respondent shall make the above payments as follows:
a. $175,000 on or before July 25, 2014
b. $175,000 on or before July 25, 2015; and
c. $175,000 on or before July 25, 2016.
Each payment shall be made payable to the New York State Department of Health and
forwarded to the New York Stale Department of Health, Bureau of Accounts Management,
Room 27B4, Corning Tower, Empire State Plaza, Albany, New York 12237-0016. The
Department will first allocate such payments to the civil monetary penalty until that is satisfied,
and then to the amount under SFL

4(11)(b)(6). Any payment not made by the date

prescribed herein shall be subject to all provisions of law relating to debt collection by the
State of New York. This includes, but is not limited to, the imposition of interest, late payment
charges and collection fees; referral to 1h9 New York State Department of Taxalion and
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Finance;
and non-renewal of permits or licenses [Tax Law

171(27): State Finance Law

18; CPLR Section 5001; Executive Law

32].
5. The Respondent agrees to impement and/or has already implemented the
following:
a. develop a comparability study to the satisfaction of the Department for
each approved method that was affected by the Respondent and NEAs uriapproved
modification of EPA-8W846 3520, specifically: EPA-SW846 8082, CQCS, CSGB, EPA
SW846 8081, EPA-SW846 8015, EPA-SWB4S 8270, EPA 508, and EPA 608;
b. conduct each approved comparability study in a manner acceptable to
the T)epaitrnerit that will demonsirate the effect (if any) of the method modifications for each
method, sample matrix and target analyte that was analyzed for the clients of Respondent
and NEA
c. disclose the results of comparability studies to the Department upon
completion of each;
ci. send letters approved by the Department to the clients of the
Respondent and NEA affected by the results of the 2713 reports (1772 by NEA and 941 by
the Respondent), notifying these clients of such thIngs as required by the Department
including that an unapproved modification was made to the method used to analyze their
sample(s), and disclosing the discrepancies (if any) in results that were identified during the
course of each of the comparability studies. Notices shall be sent to affected clients for whom
comparability studies have already been completed within two (2) days of the effective date
of this Stipulation and Ordec;
a perform re-testing for any cUent of the Respondent or NEA affected by
the conduct described in Paragraph 3 above who requests the same, at no charge to the
client. The Respondent shall treat such requests as a priority and comp!ete re-testing
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promptly; and
f. within 30 days of the effective date of this Stipulation and Order, retain
an independent third party person or organization, subject to the approval of the Department,
which approval will not be unreasonably withheld, to confirm the Respondents compliance
with this Stipulation and Order and testing of analytes at the Schenectady site in conformance
will, its certificates of approval issued by the Department. The 3 party shall be an
environmental laboratory professional and shall have access to the RespondenVs facilities
and records as needed for purposes of the terms of this Stipuation and Order. Department
approval of the monitor shall be subject to, among other things, the proposed
3Td
party
providing a plan for such reviews that is acceptable to the Department. The 3 party shall
provide the Department semi-annual reports for two years with the first report due six months
from the effective date of this Stipulation arid Order.
!
the first two semi-annual
3d
party
reports demonstrate that the Respondent has fully complied with the terms of this Stipulation
and Order and testing of analytes in conformance with its certificates of approval, the
Respondent may request permIssion from the Department for the
3
party to thereafter
provide one annual report In lieu of the two remaining semi-annual reports. Whether the
Department grants such request is subject to its sole discretion. if the request is granted, the
last report shall be due two years from the effective date of this Stipulation and Order. The
Respondent shall have a written contract with the
3d
patty expressly recognizing that it shall
have an obligation to affirmatively report any violation of the Stipulation and Order to the
Department. The Respondent and the
3d
party must completely respond to any inquiries of
the Department with relating to tI-s Stipulation and Order. -
6. If the Respondent is found to have a similar repeat deficiency of either Section
502(2) of the PHL or 10 NYCRR 55-2.2(c) within (3) years from the effective date of this
Stipulation and Order, or fails to make any payment when due and owing, or does not
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otherwise comply with the terms of this Stipulation and Order, Respondent agrees that the
Department may, at its sole discretion, immediately revoke the Respondents certificates of
approval for the Schenectady site, pursuant to this Stipulation and Order and without a
hearing. A similar repeat deficiency shall occur if:
a. the Department determines that the deficiency Is of a nature, scope or
frequency that could cause and result in unreliable results for any analysis the Respondent
is authorized to perform at the Schenectady site; or
b. The Department determines that the delciency: involves either (1) the
performance of an examination on an environmental sample at the Schenectady site that is
not authorized under the Respondents certificates of approval; or (2) the use of an
unapproved method in its preparation or analysis of a sample, matrix or analyte.
8. it Is further stipulated and agreed by the Respondent and the Department that
there exist valid and sufficient grounds, as a matter of fact and law, for the issuance of this
Stipulation and Order under the PHL, and the Respondent consents to its Issuance, accepts
its terms and conditions, and waives any right to challenge this Stipulation and Order in a
proceeding pursuant to Article 78 of the Civil Practice Law and Rules, or in any other action
or proceedingS
a It is agreed that nothing in this Stipulation and Order shall be deemed to waive
or otherwise bar any action by Respondent against NEA or its former principals with regard
to any claims of any nature ncluding those arising from, associated with or related to any
matters referenced in this Stipulation and Order.
10, This Stipulation and Order shall be effective upon service on the Respondent,
or the Respondents attorney or representative, of a copy by personal service, or by certified
or registered niaji.
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DATED:,
.
Minnesota Pace Analytical Services, Inc.
2014
ctc wI- /4 ,/r 6 ?r.
DATED: Albany, New York New York State Department of Hearth
4
CJunig 3.6
.2014
By: -2tdt4E--C7ce< 4--r
QTiylor, PhD. ,;7--J
- Dkeiior, WadswdnE Center
.
Inquiries to:
Mark Fleischer, Assistant Counsel, or
Jerry DeLulse, Associate Attorney
Telephone: (518) 473-1707
1.
Fax: (518) 486-1855
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Mr. Rodney Burwell
Mr. Steve Vanderboom
Pace Analyfical Services, Inc.
1800 Elm Street, SE, Suits 200
Minneapolis. MInnesota 554142500
Mall Payment to
New York Stale Department of Health
Bureau of Accounts Management
Corning Tower, Room 2764
Empire State Plaza
Albany, New York 12237-0016 - -
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