LegCo Paper No. CB(1)2096/95-96
(These minutes have been seen
by the Administration)
Ref : CB1/BC/20/95/2

Bills Committee on Environmental Impact Assessment Bill

Minutes of Meeting held on Friday, 5 July 1996 at 8:30 a.m.in Conference Room B of the Legislative Council Building

Members Present:
    Hon Edward S T HO, OBE, JP (Chairman)
    Hon Christine LOH Kung-wai (Deputy Chairman)
    Hon IP Kwok-him
    Dr Hon LAW Cheung-kwok
    Hon MOK Ying-fan
    Hon NGAN Kam-chuen
    Dr Hon John TSE Wing-ling
Members Absent:
    Hon Ronald ARCULLI, OBE, JP
    Dr Hon LEONG Che-hung, OBE, JP
    Hon Emily LAU Wai-hing
    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
Public Officers Attending:
    Miss Joey LAM
    Principal Assistant Secretary for Planning, Environment and Lands (Environment)
    Mr Raymond CHAN
    Assistant Director (Environmental Assessment)
    Mr Elvis AU
    Principal Environmental Protection Officer (Territory Assessment Group)
    Mr Anthony Watson-Brown
    Senior Assistant Law Draftsman Attorney General’s Chambers

Staff in Attendance:

    Mr Arthur CHEUNG, ALA5
    Miss Odelia LEUNG, CAS(1)1
    Ms Sarah YUEN, SAS(1)1

I.Matters Arising

(LegCo Paper No. CB(1) 1731/95-96)

Qualifications of personnel involved in conducting Environmental Impact Assessment (EIA)

On the need for stipulation of statutory requirements on the qualifications of personnel involved in the conduct of EIA studies, representatives of the Administration said that although a statutory system for qualifying EIA professionals was not a common practice among overseas countries having legislation on EIA, to cater for future needs arising from practical experience in the actual application of the Bill, the Administration proposed to add a provision to the Bill to empower the Secretary for Planning, Environment and Lands (SPEL) to make regulations in this regard. The Administration would review the need for statutory requirements 12 months after the coming into operation of the Bill.

Both Miss Christine LOH and Dr LAW Cheung-kwok opined that there was no need for statutory requirements on the qualification of EIA professionals.

The Administration’s response to comments from respondent organisations

Public inspection of reports

3. On public inspection of EIA reports, Miss Joey LAM said that since the applicant would be required to advertise the availability of the report once every ten days during the public inspection period in a Chinese language newspaper and an English language newspaper, and that the Administration might require the applicant to formally consult the district board concerned, the public should be fully aware of the existence of the project. Miss LAM further said that the 30-day public inspection period was a right balance because the public already had several opportunities to comment on a project at the planning stage, the study brief stage and the EIA report stage. Moreover, as the Advisory Council on the Environment (ACE) would have 60 days to comment on a report, it could also take public views into account in formulating its comments.

Sanction provisions

4. Miss LAM explained that the Administration did not consider it advisable to establish performance bonds because this would place undue financial burden on the law-abiding developers. Moreover, the administration of performance bonds might also place onerous demands on the Environmental Protection Department (EPD). For instance, it would be difficult to decide on the amount of bonds adequate to cover the damages done to the environment under any circumstances. As for the possibility of adding under Part VIII a provision stating that criminal proceedings would not be instituted against the person concerned if he had remedied the damage, Miss LAM said that remedy and prosecution were separate matters. There was a need for criminal liability to provide sufficient deterrent effect. It was not appropriate for the Administration to set out guidelines on the application of criminal sanction nor on the level of penalties as sentencing was a matter for the Judiciary.

Exemption provisions

5. Representatives of the Administration emphasised that only under very rare circumstances and invariably in the public interest would an exemption be granted by the Executive Council from the application of the Bill. Any exemption would be granted by an order published in the Gazette and subject to the negative approval by the Legislative Council. Other environmental protection laws also had such reserved power and it was by no means unique to the Bill.

6. Miss Christine LOH and Mr MOK Ying-fan expressed reservations about the exemption provisions. They opined that to prevent the provisions from being invoked lightly, there should be proper criteria for assessing exemption from the provisions of the Bill. Members agreed to consider this issue further.

Clerk to note

Access to appeal

7. As regards some deputations’ comments that the right to appeal should not be restricted to the project proponent only, Miss Joey LAM stated that the Administration did not see any need for third party appeal. A project was regulated by different legislation depending on its nature and the public could raise objections to or comment on a gazetted project during the public consultation period. A further right to appeal under the EIA Bill would unnecessarily delay project implementation.

Residential developments subject to EIA

8.On the threshold for application of the Bill to residential developments, representatives of the Administration explained that the Administration drew a line at 2,000 flats after considering past EIA studies. Only potentially polluting residential developments would be controlled by the Bill. Residential developments exceeding 2,000 flats and not served by public sewerage by the time the flats were occupied would create sewage disposal problems which would affect the ecological environment or water quality.

2. Dr TSE Wing-ling opined that the availability of public sewerage networks should not be the sole consideration in deciding whether the Bill should apply. It was not unusual that large developments would come along with other infrastructure projects such as the construction of trunk roads. The size of the development should therefore be an important factor. In response, the representatives of the Administration pointed out that most infrastructure projects were already covered by the Bill. P.1 of Schedule 2 specified that a residential or recreational development, other than New Territories exempted houses, within Deep Bay Buffer Zone 1 or 2 were designated projects. Hence all residential developments in ecologically sensitive areas would require environmental impact assessment. Moreover, there were other environmental protection legislation to address different environmental problems that might arise during or after the construction of a development.

3.In reply to the Chairman’s queries, Mr Elvis AU clarified that the focus of P.2, Schedule 2 was the availability of the public sewerage networks, whereas F.2 was directed at the environmental impact of the sewage treatment works themselves. At member’ request, the Administration agreed to provide information on the size of the sewage treatment works adequate to service 2,000 flats.Admin

II.Detailed examination of clauses

Clause 3

Application

Members noted that non-application of criminal liability on Government and public officers was a constitutional issue and that this was not unique to the Bill. They welcomed that the Administration would tighten subclause (4) to the effect that the Chief Secretary might require actions be taken to remedy the environmental damage. At members’ request, the Administration agreed to mention at the resumed debate on the Bill that the Chief Secretary would give the public an explanation should any government action not comply with the provisions of the Bill. Admin

Clause 26

Offences Relating to Environmental Permit

Representatives of the Administration explained that the level of fines and the period of imprisonment specified in this clause were the maximum penalties imposed for the most serious cases. The Administration intended to review these penalties one year after the implementation of the Bill. Members noted that the offender would have to bear the costs for remedial works and be subject to the penalties of other environmental protection laws applicable to the case in question.

Clause 29

Directors of Body Corporate Liable in Certain Circumstances

Mr Elvis AU said that having taken into account members’ view, the Administration decided not to proceed with the proposal to add a subclause to make a director of a body corporate liable for the costs for remedial works should he be convicted of permitting the commission of an offence under the Ordinance and the body corporate go bankrupt.

III.Date of Next Meeting

Members agreed to schedule a further meeting between July and early August 1996 to consider any outstanding issues and the draft Committee Stage Amendments to be provided by the Administration. (Post-meeting Note: The meeting was subsequently scheduled for 18 July 1996 at 2:30 p.m.)

The meeting ended at 10:00 a.m.
Legislative Council Secretariat
24 September 1996

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