The State Air Laboratory and the Analysts
Chapter Fifty-Two
Syllabus topic 3, "Pollution of Air"
Pages 235 to 238 of 783
In one line
One Government laboratory for a State, two kinds of analyst, and a report that proves itself.
In exam wording: section 28 empowers a State Government, after consultation with the State Board, to establish or specify a State Air Laboratory and to make rules on its functions, the procedure for submitting samples, the form of the report and the fees; section 29 provides for the appointment of Government analysts by the State Government and of Board analysts by a Board; and section 30 provides that a document purporting to be a report signed by a Government analyst or a Board analyst may be used as evidence of the facts stated in it in any proceeding under the Act.
Section 28: the State Air Laboratory
Sub-section (1). The State Government may, by notification, either establish one or more State Air Laboratories, or specify one or more laboratories or institutes as State Air Laboratories, to carry out the functions entrusted to a State Air Laboratory under the Act.
Sub-section (2). The State Government may, after consultation with the State Board, make rules prescribing:
- the functions of the State Air Laboratory;
- the procedure for submitting samples of air or emission for analysis or tests, the form of the laboratory report and the fees payable for it;
- such other matters as may be necessary or expedient.
Two differences from the Water Act worth marking.
There is no Central Air Laboratory. The Water Act has both a Central Water Laboratory under section 51 and a State Water Laboratory under section 52. This Act has only the State tier. The Central Board may establish or recognise a laboratory under section 16(3) for its own purposes, but there is no statutory Central Air Laboratory answering to section 51.
The consultation requirement sits differently. Under section 52 of the Water Act the State Government consults the State Board before making the rules. The same is true here, and it is worth noticing that the consultation attaches to the rules and not to the establishment or specification of the laboratory itself.
Section 29: the analysts
Sub-sections (1) and (2), Government analysts. The State Government may, by notification, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government analysts for the purpose of analysing samples of air or emission sent for analysis to a laboratory established or specified under section 28.
Sub-section (3), Board analysts. Without prejudice to section 14(3), the Central Board or a State Board may, by notification and with the approval of the Central or State Government, appoint such persons as it thinks fit, having the prescribed qualifications, to be Board analysts for the purpose of analysing samples sent to a laboratory established or recognised by that Board under section 16(3) or section 17(2).
The State Air Laboratory and the Analysts
The two kinds of analyst are the same distinction the Water Act draws, and it is worth setting out.
| Analyst | Appointed by | For samples sent to |
|---|---|---|
| Government analyst | the State Government, by notification | a laboratory established or specified under section 28 |
| Board analyst | the Central Board or a State Board, with the Government's approval | a laboratory the Board established or recognised under section 16(3) or 17(2) |
Section 26(3)(d) is where the two meet: a sample is sent either to a laboratory established or recognised under section 17(2), where a Board analyst reports, or to the State Air Laboratory under section 28, where a Government analyst does.
Section 30: the report
Any document purporting to be a report signed by a Government analyst or, as the case may be, a Board analyst may be used as evidence of the facts stated therein in any proceeding under this Act.
It is section 54 of the Water Act and section 14 of the Environment (Protection) Act in the same words, and the chapter on the water laboratories works through what each phrase carries. One point is peculiar to this Act and it is the one to take away.
Section 30 saves nothing if the sample was badly taken.Section 26(2) makes the analysis of a sample taken otherwise than in accordance with sub-sections (3) and (4) of that section inadmissible altogether, and a report of an inadmissible analysis is not rescued by the fact that it purports to be signed by an analyst. So the order of questions in an air case is fixed: was the sample lawfully taken, and only then, what does the report say.A defence that begins with the chemistry has begun in the wrong place.
Whose report prevails
Section 27(4) provides that where there is any inconsistency or discrepancy between, or variation in, the results of an analysis by a laboratory established or recognised by a Board and one established or specified under section 28, the report of the latter prevails.
The reason is the one given in the corresponding water chapter: the Board is both the regulator and the prosecutor, and the Act does not let its in-house laboratory settle a dispute with the independent tier.
A worked example
A stack sample is taken at a plant. The occupier is present and signs. The officer sends it to a laboratory the State Board has recognised, and the Board analyst reports particulate matter above the standard. The occupier, doubting the result, has an independent test done and sends a sample of his own to the State Air Laboratory, which reports below the standard.
The State Air Laboratory and the Analysts
Which report is before the tribunal? Both, if both are properly proved. Section 30 lets each be used as evidence of the facts stated in it.
Which prevails? The State Air Laboratory's, under section 27(4), because it is a laboratory established or specified under section 28 and the other is one recognised by the Board.
Does the occupier's own sample count as a sample under the Act? Not as one taken under section 26, which is a power conferred on the Board or its officer. What he has is evidence of a test on material he collected, which he may lead in the ordinary way, and whose weight depends on how he collected it.
That is why an occupier's real protection under this Act is his presence when the Board's sample is taken and his signature on the seal, rather than a retained part as under the Water Act.
What it does NOT mean
It does not mean there is a Central Air Laboratory. The Act creates only a State tier under section 28; the Central Board's own laboratories are established or recognised under section 16(3).
It does not mean a Board analyst is a Government analyst. They are separately appointed, by different authorities, for different laboratories, and section 27(4) turns on the difference.
It does not mean a report is conclusive. Section 30 makes it usable as evidence of the facts stated in it.
It does not mean section 30 rescues a defective sample. Section 26(2) makes the analysis inadmissible in the first place.
Quick revision
- 28: the State Government may establish or specify a State Air Laboratory, and may make rules, after consulting the State Board, on its functions, the procedure for submitting samples, the form of the report and the fees. There is no Central Air Laboratory.
- 29(1) and (2): Government analysts, appointed by the State Government by notification, with the prescribed qualifications, for samples sent to a section 28 laboratory.
- 29(3): Board analysts, appointed by a Board with the Government's approval, for samples sent to a laboratory the Board established or recognised.
- 30: a document purporting to be a report signed by either may be used as evidence of the facts stated in it in any proceeding under the Act.
- 27(4): on a discrepancy, the State Air Laboratory's report prevails.
Test yourself
1. What does the Air Act have that the Water Act does not, and what does it lack? It lacks a Central laboratory. The Water Act provides for both a Central Water Laboratory under section 51 and a State Water Laboratory under section 52; the Air Act provides only for a State Air Laboratory under section 28. What the Central Board has for air purposes is the power under section 16(3) to establish or recognise laboratories of its own, which is a different thing and produces a Board analyst rather than a Government analyst.
The State Air Laboratory and the Analysts
2. Distinguish a Government analyst from a Board analyst under this Act. A Government analyst is appointed by the State Government by notification under section 29(1) and (2), from among persons having the prescribed qualifications, to analyse samples of air or emission sent to a laboratory established or specified under section 28. A Board analyst is appointed by the Central Board or a State Board by notification under section 29(3), with the approval of the appropriate Government, to analyse samples sent to a laboratory that Board has established or recognised under section 16(3) or 17(2).
3. What does section 30 achieve? It provides that any document purporting to be a report signed by a Government analyst or a Board analyst may be used as evidence of the facts stated in it in any proceeding under the Act. The report therefore proves itself without the analyst being called, and it proves the composition of the sample rather than merely the fact that an analysis was made. Its operation depends on the sample having been taken in accordance with section 26, because section 26(2) makes the analysis of a defective sample inadmissible.
4. Two laboratories disagree about the same emission. Whose report prevails? The State Air Laboratory's. Section 27(4) provides that where there is any inconsistency or discrepancy between, or variation in, the results of an analysis carried out by a laboratory established or recognised by a Board and one established or specified under section 28, the report of the latter shall prevail. The reason is that the Board is both the regulator and the prosecutor.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.