LegCo Paper No. CB(1)2095/95-96
(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 Thursday, 27 June 1996 at 2:30 p.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)
Dr Hon LEONG Che-hung, OBE, JP
Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Dr Hon John TSE Wing-ling
Members Absent:
Hon Ronald ARCULLI, OBE, JP
Hon Emily LAU Wai-hing
Hon MOK Ying-fan
Hon NGAN Kam-chuen
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 Generals Chambers
Staff in Attendance :
I. Confirmation of Minutes of Meeting
(LegCo Paper No. CB(1)1614/95-96)
The minutes of the meeting held on 8 May 1996 were confirmed.
II. Matters Arising
Members noted that in response to their requests at the last meeting, the Administration had provided the following papers :
- Paper on the Application of the Environmental Impact Assessment (EIA) Bill to a 400kV Transmission Line Project (LegCo Paper No. CB(1)1694/95-96); and
- Paper on Public Participation at the Early Stages of the EIA Process (Paper tabled at this meeting and circulated to members not present vide LegCo Paper No. CB(1)1724/95-96).
3. Miss Joey LAM briefed members on the paper on Public Participation at the Early Stages of the EIA Process, which elaborated the Administrations proposal to require the applicant to advertise the availability of the project profile and allow 14 days for the public to comment in parallel to the preparation of the study brief by the Director of Environmental Protection (DEP) in consultation with other relevant departments. Miss Joey LAM emphasised that as the project profile contained basic project details, the public should be able to comment on broad environmental concerns which should be addressed in the EIA study within the proposed 14-day consultation period. Moreover, the public would have 30 days to comment on details of the EIA report after its completion.
4. In reply to members questions and comments on the proposal, representatives of the Administration emphasised that the present proposal should be able to strike a balance between the publics aspiration for early participation and the need to avoid lengthening the time required for the EIA process. As most of the designated projects were large-scale infrastructure projects that had to be shown on the outline zoning plan, the public already had the channel to raise objection at the planning stage of the project. The use of land and sea was controlled by various pieces of legislation, which provided for statutory public objection periods of up to 60 days. The relevant district boards would also be consulted at the planning stage. If the proposed mechanism was adopted, the public would in effect have three opportunities to comment on an infrastructure project before the environmental permit was granted, namely, at the planning stage, the study brief stage and the EIA report stage.
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5. To address some members concern that district boards should be given an opportunity to comment on the project profile, the Administration agreed to establish an administrative mechanism whereby the project profile would be sent to district board members and the Advisory Council on the Environment at the same time. The Administration also agreed that the Secretary for Planning, Environment and Lands (SPEL) would mention this arrangement at the resumed debate on the Bill. Members supported the Administrations proposal. | Admin |
| 6. As regards members request at the last meeting for information on the mechanism adopted by other countries in ensuring compliance with EIA legislation by public officers, representatives of the Administration advised that the UK and Australia had legislation similar to the EIA Bill under which public officers were exempted from criminal liability. The EIA Bill was not unique in this aspect. In fact, clause 3 was modelled on the provisions of the existing environmental legislation. At members request, the Administration would tighten subclause (4) to empower the Chief Secretary to require actions be taken to remedy the damage done to the environment. Members agreed to discuss this issue further. | Admin
Clerk to note
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| 7. Concerning members queries raised at the last meeting on the possibility of taking a citizen suit against the Government for environmental damage, Miss Joey LAM said that under the present legal system, any person might apply for a judicial review on a Governments decision which, in his opinion, is prejudicial to his interest. As such, it was not necessary to include a provision in the Bill providing for the right to take a citizen suit. Members agreed to consider this point further. | Clerk to note |
III. Clause-by-Clause Examination
Clause 4
Certain projects to be designated projects
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8. Miss Joey LAM said that to address some deputations concern that project proponents might split up a project into a number of small projects to circumvent the Bill, the Administration proposed to add a new provision to the effect that SPEL was empowered to require such projects be subject to the provisions of the Bill. Members would discuss this again when the drafting of the provision was available. | Clerk to note |
Clause 6
Environmental Impact Assessment Report
9. Addressing members concern about possible delay in the EIA process, representatives of the Administration said that for complex projects, a study management group would be set up to monitor the progress, to take care of any important issues arisen during the EIA process, and to co-ordinate views from different departments. Should DEP decide that an EIA report did not meet the requirements of the brief and the Technical Memorandum (TM), he would advise the applicant of the decision as soon as practicable and of the reasons for the decision. This would enable the applicant to rectify the inadequacies of the report without undue delay.
10. As regards whether the Administration would adhere to the statutory time-frame of reaching a decision within 60 days of receiving the report should there be a sudden influx of applications, Miss Joey LAM stressed that the 60-day period was a statutory maximum time limit and the Environmental Protection Department (EPD) might not need 60 days to process an EIA report. Miss LAM assured members that EPD would make internal staff deployments to ensure strict compliance with the deadline. The Administration agreed to reaffirm this undertaking at the resumed debate on the Bill. | Admin.
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11. Responding to Ms Christine LOHs concern that all applicants should be treated alike, representatives of the Administration stated that they were working on a set of guidelines on the EIA procedures to ensure a level playing field. The draft guidelines would be sent to the Independent Commission Against Corruption for comment as to how to enhance the transparency of the procedures. TM, which set out the detailed operational requirements on the structure and content of EIA studies, would also help to ensure a level playing field.
Clause 7
Public Inspection of Reports
| 12. In response to some members concern about the duration of the period for public inspection, representatives of the Administration emphasised that 30 days were a right balance. Past experience showed that many submissions were received during the public consultation period. Together with the proposal to provide for public participation at the EIA study brief stage, public involvement in the EIA process would start at an early stage and the public should be familiarised with the project before inspecting the EIA report. In addition, TM would specify the number of executive summary and full reports to be placed at the designated locations. Every district board would receive an executive summary of the report, and the public would have access to the full report. EPD was examining the feasibility of uploading the reports on the Internet, and of requesting the project proponents to consult the district boards concerned. The Administration assured members that there would be internal guidelines or administrative measures to facilitate the EIA process and to ensure its transparency. The Administration would mention this at the resumed debate on the Bill. | Admin |
Clause 11
Members noted that an environmental permit was holder-tied and once the project changed hands, the permit had to be surrendered to the Administration.
Clause 14
Cancellation or Variation of Environmental Permit by the Director
14.Members expressed concern about the power of the Governor-in-Council in suspending, varying or cancelling an environmental permit as specified under subclause (3). They enquired if the project proponent could claim damages arising from such an action and sue the Administration.
15. In response, representatives of the Administration stressed that the Governor-in-Council would only cancel an environmental permit under very exceptional circumstances. The Governor-in-Council would have to be satisfied that the continuation of the designated project would be extremely hazardous to public health and that the damage done could not be remedied. Although it was not expressly stated in the Bill, the Governor-in-Council would address the question of compensation to the affected parties when it considered the cancellation or variation of a permit.
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16. On the possibility of taking a citizen suit against the Administration, Mr Anthony Watson-Brown said that under the current administration law, a person might take such an action should he consider the Governments decision irrational. To enhance transparency, the Administration agreed to add a subclause to provide that the permit holder be advised of the reasons for cancellation or variation of an environmental permit. | Admin |
Clause 16
Technical Memorandum
17.Mr Anthony Watson-Brown explained that to limit the volume of law books, the Administration would move an amendment to stipulate that TM was not to be regarded as subsidiary legislation.
Clause 19
Constitution of Appeal Board
18. Miss Joey LAM said that in response to the professional bodies comments, the Administration would amend subclause(5) to the effect that the Appeal Board must not include public officers. The practice and procedure of the Appeal Board would be regulated by regulation made by SPEL under clause 32.
Clause 23
Power of Entry and Inspection, etc.
19.In reply to members queries, Mr Watson-Brown explained that subclause (1) specified the conditions under which an authorised officer might without warrant enter and search a place. As for domestic premises, an officer had to obtain either a warrant issued by the magistrate or the consent of the occupiers to enter the place. This was necessary to protect private property.
Clause 26
Offences Relating to Environmental Permit
20. Some members opined that the fines imposed in the past for the commission of environmental offences had been too light as to have any deterrent effect. They urged for the setting of minimum fines. Miss Joey LAM explained that the fines imposed on a second or subsequent conviction would be higher, and that in any case where the offence was of a continuing nature, the court or magistrate might impose a fine of $10,000 for each day on which he was satisfied that the offence continued. The Administration could also file an appeal should it consider the penalty too light. Mr Watson-Brown said that in imposing a fine, the court would take into account many factors, including the severity of the offence and the ability of the offender to pay. If members wished to impress upon the court the seriousness of environmental offences, they might emphasise this point at the resumption of the Second Reading debate on the Bill.
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21. The Chairman opined that since a person for whom a project was constructed, operated or decommissioned might not have the expertise to decide whether a project was carried out contrary to section 9, it would be unfair to hold him liable. In response, representatives of the Administration said that subclause (5) provided that if the person could prove that the offence was committed without his consent or connivance and that he had exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity, he did not commit an offence. In other words, he would only be held accountable if he knowingly and specifically permitted the carrying out of the project contrary to section 9 or that he, as the director responsible for the project, had not exercised all due diligence to ensure compliance with section 9. Shareholders would have different obligations if they did not make decisions relating to the offence. Members agreed to discuss this clause further. | Clerk to note |
Clause 29
Directors of Body Corporate Liable in Certain Circumstances
| 22. Miss Joey LAM stated that in response to some deputations suggestion, the Administration intended to add a subclause to provide that if a director of a body corporate was convicted of permitting the commission of an offence under the Ordinance, he would be personally liable for the costs for remedial works in the event that the body corporate went into liquidation. Mr Watson-Brown supplemented that in deciding whether to prosecute a person, the Administration would consider whether the person had taken action to remedy the situation, although this was not expressly stated in the law. At members request, the Administration would address this issue in its consolidated response to the submissions made to the Bills Committee. | Admin |
23. Since the proposed subclause went contrary to the spirit of limited liability of a limited company, members agreed to examine this issue further.
Clause 30
Exemptions
24. Miss Joey LAM stated that the Administration preferred the retention of the exemptions provision. This clause would be invoked under very rare circumstances in the public interest and could only be exercised by the Governor-in-Council, the highest authority in the Government. Moreover, any exemption would be by an order published in the Gazette, which would be subject to negative approval by the Legislative Council.
Clause 32
Regulations
25. Miss Joey LAM said that as advised at an earlier meeting, the Administration proposed that to cater for future needs arising from practical experiences in the actual application of the Bill, a provision would be added to the Bill to empower SPEL to make regulations on the qualifications of personnel involved in conducting EIA studies or certifying EIA reports.
| 26. In reply to members queries about subclause (3), Mr Watson-Brown explained that without this subclause, the fines imposed for contravention of subsidiary legislation would be subject to the Interpretation and General Clauses Ordinance, Chapter 1, which specified that they should not exceed $5,000. ALA1 confirmed this advice. The Administration would advise further on this subclause. | Admin |
Schedule 2
Designated Projects Requiring Environmental Permits
P-Residential and other developments
27. Miss Joey LAM said that to avoid misunderstanding, the Administration proposed to substitute the word "before" with "by the time" in paragraph (b).
28. Concerning the threshold, Dr TSE Wing-ling opined that apart from the number of flats, the size and location of a project were also important considerations. In response, representatives of the Administration explained that the aim of the EIA Bill was to control potentially polluting developments. Residential developments in ecologically sensitive areas or those exceeding 2,000 flats and not served by public sewerage by the time the flats were occupied would come under the EIA Bill. The residential developments in unsewered areas would require measures to address the sewage disposal problem which might have an impact on the ecological environment or water quality. Members agreed to consider this point further. | Clerk to note |
Schedule 4
Matters that may be Specified in Environmental Permit
29.Miss Joey LAM advised that the words "environmental impact assessment" would be deleted from paragraph 15.
IV. Date of Next Meeting
30. The Chairman reminded members that the next meeting of the Bills Committee was scheduled for Friday, 5 July 1996 at 8:30 a.m.
31.The meeting ended at 4:45 p.m.
Legislative Council Secretariat
24 September 1996
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