LegCo Paper No. CB(1)1668/96-97
(These minutes have been
seen by the Administration)
Ref: CB1/PL/EA/1

LegCo Panel on Environmental Affairs

Minutes of meeting held on Tuesday, 4 March 1997, at 10:45 a.m. in Conference Room B of the Legislative Council Building

Members present :

Member attending :

Members absent :

Public officers attending :

All items
Mr Benjamin TANG: Deputy Secretary for Planning, Environment and Lands
(Environment)
Mr Rob LAW: Director of Environmental Protection
Items III to V
Miss Joey LAM: Principal Assistant Secretary for Planning, Environment and Lands (Environment)
Mr C W TSE: Assistant Director of Environmental Protection (Air)
Mr Arthur CHU: Principal Environmental Protection Officer
Item V
Ms Maureen WONG: Principal Assistant Secretary for Transport
Mr Peter LUK: Principal Transport Officer/Management
Mr Roger LAI: General Services Manager
Electrical and Mechanical Services Department
Mr PANG Yiu-hung: Senior Electrical and Mechanical Engineer
Item VI
Mr Stanley WONG: Principal Assistant Secretary for Planning, Environment and Lands
(Planning)
Mr P C CHAN: Government Town Planner/Ordinance
Review and Technical Administration

Clerk in attendance:

Miss Odelia LEUNG: Chief Assistant Secretary (1)1

Staff in attendance :

Mr Jonathan DAW: Consultant, Legal Service Division
Ms Bernice WONG: Assistant Legal Advisor 1
Ms Sarah YUEN: Senior Assistant Secretary (1)1

I Date of next meeting and items for discussion

II Information papers issued since last meeting

III Control of construction dust

IV Indoor air quality

V Air pollution in vehicle tunnels

VI Protection of the Harbour Bill

VII Any other business

I Date of next meeting and items for discussion

(List of outstanding items for discussion (1996-97) tabled)

Members agreed to discuss the following items at the next meeting of the Panel scheduled for 10 April 1997 -

Erection of overhead power lines (members of the LegCo Panels on Economic Services and on Health Services would be invited to discuss this item);
Treatment of radioactive wastes; and
Fresh water quality.

(Post-meeting note: A further item, Fourth Review on the 1989 White Paper on the Environment, was added to the agenda at the Administrations request.)

2. Members noted that a special meeting would be held on 29 April 1997 at 8:30 am to discuss the Review of Trade Effluent Surcharge and a joint meeting with the LegCo Panel on Health Services in late May to discuss centralised incineration facility.

(Post-meeting note: the joint meeting was scheduled for 30 May 1997 at 10:30 am.)

II Information papers issued since last meeting

(LegCo Paper Nos. CB(1)890 and 959/96-97)

3. Members noted the following papers issued since the last Panel meeting held on 25 February 1997 -

Tsing Yi Action Groups two letters to the Panel regarding Tsing Yi Chemical Waste Treatment Centre and the Administrations response; and
Information paper from the Administration on a proposal to appropriate newly constructed sewerage assets to the Sewage Services Trading Fund.

III Control of construction dust

(LegCo Paper No. CB(1)965/96-97(01))

4. The Principal Assistant Secretary for Planning, Environment and Lands (Environment) (PAS/PEL(E)) briefed members on the information paper from the Administration. Members noted that excessive dust emissions from construction activities was a frequent source of complaint. Apart from causing nuisance to the neighbourhood, dust emissions also contributed to high ambient concentration of an air pollutant known as total suspended particulates. To prevent excessive dust emissions, the Administration proposed a scheme of control under which contractors were required to implement specified dust suppression measures for different types of construction works. The scheme, drawn up in consultation with the construction industry, was enshrined in the proposed Air Pollution Control (Construction Dust) Regulation (the Regulation). Under the scheme, contractors of construction sites would be required to comply with the relevant dust control requirements set out in the Schedule to the Regulation, which typically included installation and proper operation of dust control systems, enclosing dusty materials and stockpiles or spraying them with water or dust suppression chemicals, treating unpaved surfaces, and implementing on-site housekeeping measures.

5. PAS/PEL(E) further elaborated that for the purpose of enforcement, construction activities were categorised as notifiable works, regulatory works and excluded works according to their scale and dust emission potential. Notifiable works were large scale works with higher dust emission potential such as reclamation, site formation, and building demolition, etc. For activities defined as notifiable works, the contractors would be required to notify the Environmental Protection Department (EPD) prior to works commencement. This would enable EPD to carry out regular inspections of the work sites to ensure compliance with the dust control requirements. For regulatory works, which were of smaller scale and had lower dust emission potential, EPD would conduct spot checks to ensure implementation of the dust control requirements relevant to the type of works being undertaken. Excluded works covered activities in confined areas with little dust emission potential. Although excluded from the requirements of the Regulation, these were still subject to control in respect of off-site storage and handling of dusty materials. It was estimated that the Regulation would bring some 50,000 construction sites under control.

6. In response to members questions on implementation details, PAS/PEL(E) and the Assistant Director of Environmental Protection (Air) (AD of EP(A)) supplemented the following information -

Notification of a proposal to carry out notifiable works should be given in a specified form to include the specified particulars. This would enable EPD to ensure compliance with the dust control requirements through proactive monitoring and vigilant inspection of the relevant work sites.
Where a vehicle carried a load of dusty materials to and from a construction site, the load should be covered entirely by clean impervious sheeting all along the way to ensure that the dusty materials would not spill over. The Administration had explored with the Buildings Department the possibility of using covered vehicles for transporting dusty materials and concluded that this was not feasible. In fact, the use of open vehicles was in line with international standards. Transport of dusty materials was subject to other municipal laws apart from the Regulation.
In case of road opening or resurfacing works, any excavated dusty materials or stockpile of dusty materials should be sprayed with water so as to maintain the entire surface wet. Spraying in this manner should considerably reduce dust emissions.
The provision of hoarding was not required for road opening or resurfacing works. However, such works should be accompanied by the operation of effective dust extraction and filtering devices. Hoarding was also not required for works on slope stabilisation next to roadways because it was not feasible to do so. For conservation purposes, the wood used for hoarding would be reused.

7. Members opined that scientific methods should be used in measuring dust emissions in order to monitor compliance with dust control requirements and to gauge the effectiveness of dust suppression measures. In response, AD of EP(A) emphasised that dust in construction sites came from various sources other than from construction activities. Before contemplating actions against non-compliance with dust control requirements, the Administration had to gather sufficient evidence. Site inspections to ensure actual implementation of practicable dust control measures was more effective than on-site measurement of dust level in assessing compliance with dust control requirements. To ensure effectiveness of dust suppression measures, detailed and specific implementation guidelines would be provided for contractors reference. If it was established that dust emissions from a site were causing nuisance to nearby areas notwithstanding the implementation of dust suppression measures, the Administration could require the contractor to improve the situation, failing which legal actions could be taken. Having regard to manpower and time constraints, the Administration considered that the proposed scheme would strike a balance.

8. Members were keen to ensure that the construction industry had been thoroughly consulted on the scheme. In response, PAS/PEL(E) and AD of EP(A) reported that the Administration had worked closely with the Hong Kong Construction Association in devising the scheme to ensure its acceptance. In fact, the original proposal was a permit system. It was changed to a notification system to accommodate the industrys concern about difficulties in submitting tenders under a permit system. At the industrys request, a defence provision had also been included to cater for situations where all due diligence or reasonable steps had been taken to comply with the requirements, but their implementation was prohibited by unforeseen circumstances such as interruption in water supply, inclement weather, etc.

9. In addressing members concern about resource implications of the scheme, AD of EP(A) advised that funding for additional manpower for EPD to implement the scheme had already been secured. Of the 50,000 construction sites that fell within the scope of the scheme, only about 1,200 sites would be subject to more rigorous monitoring through the notification system, whereas regulatory works would be subject to spot checks only. The Administration would review the Regulation after implementation for a certain period of time to assess its effectiveness.

10. Members in general welcomed the introduction and early implementation of the Regulation.

IV Indoor air quality

11. AD of EP(A) reported that with reference to overseas experience, the Administration commissioned in November 1995 a consultancy study which included telephone and questionnaire surveys on indoor air pollution in buildings, public places and shopping malls. The study would be completed in about two months and the Administration would report the findings to the Panel.

12. Members enquired whether the study covered cigarette smoke and radon. In response, AD of EP(A) replied that the study covered all sources of air pollution. An inter-departmental working group had been formed to monitor the study. Once the study was completed, all relevant departments would work together to determine the way forward.

13. Members were concerned about health hazards posed by central air-conditioning such as legionnaires disease. They urged the Administration to take active steps to tighten control over the maintenance of central air-conditioning facilities, launch an extensive anti-smoking campaign and introduce preventive measures against legionnaires disease.

14. In response, AD of EP(A) emphasised that the Administration had to consider the outcome of the study before mapping out the details of actions. Meanwhile, the Electrical and Mechanical Services Department (EMSD) was working on legislation to regulate ventilation systems. An inter-departmental working group comprising EMSD, EPD and Labour Department had been established to monitor legionnaires disease. The Health and Welfare Branch (HWB) was as concerned as members about the harmful effects of smoking and was stepping up the anti-smoking campaign. At present, smoking was prohibited in all public areas. A member pointed out that the working group on legionnaires disease was inactive, and urged the Administration to expedite its work. Members also opined that EPD should work closely with HWB in mitigating the hazards of smoking. In response, AD of EP(A) reiterated that detailed measures to improve indoor air quality on various fronts would be worked out internally after completion of the study. At members request, he agreed to provide the study brief of the Indoor Air Quality Study for members information.

Admin.

V Air pollution in vehicle tunnels

(LegCo Paper N0. CB(1)965/96-97(03)

15. Mr IP Kwok-him briefed members on the three Members Bills (the Bills) to amend respectively the Eastern Harbour Crossing Road Tunnel Regulations (Cap. 215 subsidiary legislation), the Tates Cairn Tunnel Regulations (Cap. 393 sub. leg.) and the Cross-Harbour Tunnel Regulations (Cap. 203 sub. leg.) (collectively "the Regulations") to improve the concentration of carbon monoxide and nitrogen dioxide gases, and the visibility in the three tunnels (the Tunnels). He explained that at present the Regulations only contained an express provision for the control of the concentration of carbon monoxide gas. Given the health hazards of air pollution in vehicle tunnels and the absence of legislation to ensure compliance with a uniform standard of air quality, he intended to introduce the Bills to standardise the requirements. The standards proposed in the Bills were the same as those specified in the Practice Notes on Control of Air Pollution in Vehicle Tunnels (the Practice Notes) issued by EPD in 1993. The Bills, if passed, would facilitate early compliance by the tunnel companies with the international air quality standards. A survey conducted by EPD had indicated that the proposed standards were achievable through implementation of certain administrative measures with little costs.

16. Whilst expressing support for the spirit of the Bills, representatives of the Administration advised that the Bills should be considered from the following perspectives -

Whether it was technically viable to require the Companies to meet the proposed standards. The ventilation systems of the Tunnels, designed to cater for full capacity, were already stretched to the limits. It was technically impossible to further improve ventilation without putting in additional resources to upgrade the systems. An alternative would be to reduce traffic flow to improve the air quality. However, the Administration had taken all possible means to regulate traffic flow in the Tunnels. No further actions could be taken without aggravating congestion in the approach roads.
Whether the Bills would have any financial implications on the Companies. As the Bills might require the Companies to make further investments, they had questioned whether legislative means should be used to modify the terms of a private contract.

17. The Deputy Secretary for Planning, Environment and Lands (DS/PEL) further pointed out that it was the Administrations long-term goal to improve air quality in vehicle tunnels. The Administration considered that this should be done step by step. The Administration was prepared to bring the existing standards of air quality control of the Tunnels in line with the proposed standards if an agreement with the Companies could be reached. Unless the proposed standards were technically viable, the Companies should not be required to comply with them. The General Services Manager of EMSD and the Principal Assistant Secretary for Transport added that in fact the Administration had been liaising with the Companies to improve air quality in the Tunnels. As a result, the Tates Cairn Tunnel Company Limited had commissioned an independent consultant to assess the capability of the Tunnels present ventilation system to achieve the latest air quality standards. The findings indicated that its performance varied with the traffic flow and the weather conditions and the standards might not be attained at all times. Presently the Company was examining three options to upgrade the ventilation system. As this would incur expenses with which the Company might not be able to afford given its present financial situation, it might not be appropriate to compel the Company to make any commitments to improve air quality in the Tunnel within a short time. The cost of any improvement works carried out eventually might also lead to an increase in the tunnel toll.

18. Mr IP Kwok-him disagreed with the Administration and said that the Bills did not seek to impose any sanction on the Companies for failure to comply with the standards specified therein. He stressed that as air pollution in vehicle tunnels greatly affected public health and the Administration also intended to improve the situation in the long run, the Administration should support the Bills. Their enactment would exert pressure on the Companies to make improvements which would facilitate the Administrations work in this area.

19. Members in general supported the Bills and commented that since the franchise of the Cross-Harbour Tunnel would soon expire, whereupon the Tunnel would revert to the Government, it would be the Administrations responsibility to upgrade the air ventilation facilities in compliance with the proposed standards. If public health was at stake, financial consideration was not an excuse for not making good the situation. To mitigate possible financial burdens, the Companies might be given a grace period to comply with the proposed standards. Apart from the three Tunnels in question, the proposed standards should also apply to the Western Harbour Crossing (the Western Crossing).

20. In response, Mr IP Kwok-him said that it was also his wish to apply the same standards to the Western Crossing. PAS/PEL(E) clarified that the standards with which the Western Crossing was required to comply were only slightly lower than the proposed standards. As its facilities were more advanced, it should have no difficulties in observing the higher standards. However, the Administration would have to examine the performance of the Crossing after it came into full operation before making any decision.

21. In conclusion, Mr IP said that subject to the ruling of the President of LegCo that the Bills had no charging effect, he would introduce these into LegCo on 9 April 1997 the latest.

VI Protection of the Harbour Bill

(LegCo Paper Nos. CB(1)965/96-97 (04) and (05), and papers tabled by the Chairman at the meeting and circulated to members vide LegCo Paper No. CB(1)998/96-97)

Since the Protection of the Harbour Bill (the Bill) was a Members Bill introduced by Miss Christine LOH, the Deputy Chairman took over the chair.

23. Miss LOH briefed members on the Bill. Members noted that the Bill was gazetted on 22 November 1996 and introduced into the Legislative Council (LegCo) on 4 December 1996. A Bills Committee had been set up to examine the Bill but was not yet activated. The purpose of the Bill was to ensure that Victoria Harbour would be protected against excessive reclamations. The major provisions in the Bill were as follows -

Clause 3 of the Bill stated the general principle that Victoria Harbour was a special public asset and a natural heritage of Hong Kong people, and imposed a presumption against its reclamation. Public officers and bodies would be bound to have regard to this principle.
Clause 4(1) of the Bill prohibited the carrying out of any reclamation in the harbour unless it had been approved by LegCo. Only the Governor could propose reclamations to LegCo.

24. The Principal Assistant Secretary for Planning, Environment and Lands (Planning)(PAS/PEL(P)) briefed members on the Administrations position as contained in the information paper. He advised that the Administration was opposed to the Bill for the following reasons -

The Bill was not necessary as there was already an effective monitoring mechanism
The existing town planning process was already very open and transparent, and involved a thorough process of public consultation. For example, the Town Planning Ordinance (Cap. 131) provided a mechanism for the Town Planning Board (TPB) to scrutinise proposed reclamation projects through amendments to outline zoning plans and public consultation. Specific works projects were also required to be gazetted under the Foreshore and Sea-bed (Reclamations) Ordinance (Cap. 127) for public objections. The Administration was required to consider all objections and submit them to the Governor in Council for a decision on whether or not the works should be authorised. Moreover, no project in the Public Works Programme (PWP) could proceed unless approval from the Public Works Subcommittee (PWSC) and the Finance Committee (FC) of LegCo was obtained. As harbour reclamations were included in PWP, LegCo already had enough powers to control such projects.
The Bill would upset the division of responsibility between the Executive and the Legislature
The Bill would transfer the responsibility of planning and land use development involving harbour reclamations from the Executive to the Legislature, upsetting the present division of responsibilities between the two. Hong Kongs political system was built on the principle of "separation of powers", with the Executive being responsible for formulating policies and LegCo playing a monitoring role by controlling the appropriation of funds. The Bill would, however, give LegCo the authority to make policy decisions through a veto power on the authorisation of harbour reclamation which presently rested with the Governor in Council under the Foreshore and Sea-bed (Reclamations) Ordinance. This new power would take LegCo beyond its present role. Moreover, LegCo was not equipped for making decisions of this kind. While the Bill would subject all harbour reclamations to the approval of LegCo, the Bill was silent on how LegCo would approve such proposals. It was not clear whether LegCo would invite public objections, conduct public hearings or allow appeals against its decisions. Neither did the Bill provide for the criteria in accordance with which LegCo would exercise its power concerning harbour reclamation proposals. Given the constitutional implications, the Administration could not support the Bill.
The Bill would constrain Governments ability to balance developments
Harbour reclamations provided land to meet growing demand for housing, offices and community facilities to support Hong Kongs social and economic development. By containing a presumption against harbour reclamations, the Bill would limit the range of options available to resolve planning and land use development problems. It would severely constrain Governments ability to supply land and infrastructure in the right place and at the right time by subjecting harbour reclamations to as yet unknown approval procedure and criteria. In addition, the Administration was examining public responses to the review on the Territorial Development Strategy (TDS). The Bill, if passed, would pre-empt the option of reclamation before the TDS review exercise was completed.

25. In response, Miss Christine LOH referred members to the Administrations letters to the Secretariat which were tabled at the meeting. She put forward the following arguments against the Administrations claim that there was already an effective monitoring mechanism -

In the Administrations letter dated 9 April 1996, it was stated that TPB was "responsible for the preparation of draft plans for the layout of - such areas of Hong Kong as the Governor may direct", and thus "the question of whether those areas should be reclaimed in the first place is a separate and prior issue which falls outside the present functions of" TPB. If this was the case, it was misleading to say that the Town Planning Ordinance provided for a mechanism for TPB to scrutinise proposed reclamation projects.
Only parties affected by a development could apply under the Foreshore and Sea-bed (Reclamations) Ordinance for compensation. The general public could not lodge objections in accordance with the provisions of the Ordinance.
Projects in the PWP were already at their final stage when funding approval from PWSC and FC were sought. It might therefore be too late for LegCo to have effective controls over such projects.

26. Miss LOH also referred members to the minutes of the Panels joint meeting with the Panel on Planning, Lands and Works held on 8 February 1996, which recorded that many professional bodies, marine practitioners and green groups were concerned about the present scale of reclamations and the loss of considerable areas in the harbour to development. She emphasised that in view of the extent of public concerns and the absence of an effective monitoring mechanism, there was a need to empower LegCo as a short-term measure to make decisions on reclamation proposals. The long-term solution lay with the establishment of an independent authority to consider territorial developments having regard to the interests of different sectors.

27. The Deputy Chairman pointed out that the Administration did not necessarily seek funding approval from LegCo for all reclamation projects and quoted the case of Green Island as an example. In response, PAS/PEL(P) explained that only under very special circumstances, for example, where development right was granted to a private sector developer outside of the PWP, could reclamation projects proceed without the approval of LegCo. However, such cases were very rare. Given the need to seek funding approval for conducting feasibility studies, most large-scale reclamation projects would have to be considered by LegCo at their early stage. The Green Island case quoted by the Deputy Chairman was gazetted under the Foreshore and Sea-bed (Reclamations) Ordinance and would eventually come before LegCo for funding approval. Miss LOH opined that by containing a general presumption against harbour reclamations and subjecting all harbour reclamation to the approval of LegCo regardless of the funding source, clauses 3 and 4 of the Bill could plug the loophole highlighted by the Deputy Chairman.

28. Some members were concerned about the legal effect of clause 3, which contained a general presumption against harbour reclamations. At the invitation of members, the Consultant of the Secretariats Legal Service Division explained that the presumption, though unusual in legislation that was not dealing with matters in court, was legally effective. It would inject into the deliberations of the Executive Council (ExCo) a legal principle which it must consider in deciding whether or not to authorise reclamations. Although the presumption would have the force of law and to that extent was designed to redress what was perceived as excessive reclamation, ExCo could still exercise discretion as to how the presumption was to apply. He further advised that the clause would not pose a legal challenge to such an extent as to make all reclamation proposals illegal. Rather it would require the responsible authorities to deal with reclamation of the harbour as a last resort after exploring responsibly and properly all other options.

29. Mr IP Kwok-him stated that the Democratic Alliance for the Betterment of Hong Kong had reservations about clause 4(1). His party however recognized the need to have a monitoring mechanism for reclamations.

30. Mr Edward HO stated that he supported the Bill in principle. However, he would have to consult the professional bodies in his constituency before finalising his position.

31. In response, Miss Christine LOH suggested that members consider clauses 3 and 4 separately. She urged members to support clause 3 and welcomed any alternative arrangements to clause 4(1). In her view, the establishment of an independent mechanism to monitor reclamations could be an alternative to clause 4(1). She offered to meet with different parties separately to exchange views on the Bill.

VII Any other business

32. Noting that Mr A G Cooper, former Deputy Secretary for Planning, Environment and Lands (Environment), had just gone into retirement, members agreed that the Panel sent him a letter of appreciation.

(Post-meeting note: A letter to that effect was sent to Mr Cooper on 6 March 1997.)

33. The meeting ended at 12:50 pm.

Legislative Council Secretariat
22 May 1997

Last Updated on 18 August 1998