Panel on Environmental Affairs (Papers) 5 Mar 99

For discussion
On 5 March 1999

Legislative Council Panel on Environmental Affairs

Amendment to the Waste Disposal Ordinance

PURPOSE

This paper seeks Members' views on the proposals to amend the Waste Disposal Ordinance (WDO), Cap 354 to:

control disposal of non-hazardous waste imported from outside Hong Kong;
give legislative effect to the "Basel Ban";
provide a legislative framework for the introduction of the Clinical Waste Control Scheme; and
introduce minor amendments to tidy-up the Ordinance.

BACKGROUND

Waste Disposal Ordinance (Cap 354)

2. The WDO was enacted in 1980 to provide for the control and regulation of the production, storage, collection and disposal of waste (including treatment, reprocessing and recycling). It also covers the licensing of places and persons connected with such activities, and the protection and safety of the public in relation to any such activities. The Ordinance was later expanded to control livestock waste and chemical waste, and to give effect to the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal (Basel Convention) relating to the control of movement of waste into and out of Hong Kong.

Disposal of Imported Waste

3. In January 1998, Members were informed of the background and Hong Kong's position on the control on import and export of waste. There was international concern about the potential adverse impacts of non-recyclable or hazardous waste. This led to the conclusion of an international agreement, known as the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, which provides a framework for controlling the trans-boundary movement of hazardous and other wastes. The main control mechanism is to effect a system of prior notification and consent by the authorities of the states of import, export and transit prior to the commencement of shipments of hazardous or non-recyclable waste. This Convention is given effect in Hong Kong under the WDO. The import and export of non-hazardous waste (waste as listed in the Sixth Schedule and uncontaiminated) for the purpose of recycling or reuse in Hong Kong or for re-export to other places (e.g. mainland China), is currently not restricted.

4. A small number of problems have been experienced when non-hazardous waste was imported into Hong Kong with the intention of re-export or transshipment for recycling elsewhere. In some cases, subsequent to the import, the commercial arrangement fell through. If there is a deviation from the original intention at the time of import (e.g. the waste is rejected by its intended destination for whatever reason), the waste may be returned to, or stranded in, Hong Kong. The owner may then try to dispose of the waste at the local landfills if this is more convenient and cheaper than the other options available to him.

5. Allowing uncontrolled local disposal of these imported wastes is inconsistent with waste management policy. The imported waste should be reused, recycled or returned to the original state of export as far as practicable. Indiscriminate disposal of waste imported allegedly for the purpose of reuse or recycling must be prevented. Under the existing system, it is often difficult to prosecute successfully. In the past few cases, legal advice was that, at the time of import, the waste owners did not have the mens rea (the guilty intent) to commit the offence of importing for the purpose of disposal. Prosecutions could not be brought.

6. To close this loophole, it is proposed that importers or owners of any imported non-hazardous waste must obtain an authorization from the Director of Environmental Protection (DEP) before they can dispose of waste at any local waste disposal facilities. Authorization may be granted to an importer or owner if the importer or owner can prove that it is impractical to:

return the waste to the country of export; and
that he has explored but been unsuccessful in identifying other outlets to reuse, reprocess or recycle the waste in a manner acceptable to DEP.

7. It must be stressed that this is a last resort situation, to be exercised only in extreme and unusual circumstances. Hong Kong will not be allowed to become an outlet for dumping international waste. Furthermore, the importer or owner must pay a charge specified by DEP in order to recover the full disposal cost.

Basel Ban

8. In 1995, the Third Conference of Parties of the Basel Convention agreed to ban the export of hazardous waste from States which are members of OECD, EC and Liechtenstein, to other States. The objective is to reduce the environmental impacts caused by the movement of hazardous waste from developed countries to developing countries. A list of the developed countries is at Appendix. This is commonly known as the "Basel Ban". This ban has already been implemented administratively with effect from 28 December 1998. DEP, by referring to the power under s.20A(3) of the WDO, would refuse giving pre-shipment approval to applications from the countries in question. It is now intended to formalize the arrangement through legislative amendment.

Control of Clinical Waste

9. At the EA Panel Meeting on 20 February 1998, proposals for a clinical waste control scheme (CWCS) and incineration of clinical waste in the Chemical Waste Treatment Centre was discussed. Members noted that clinical waste is potentially infectious and bio-hazardous and need to be disposed of in an environmentally sound way. Even for clinical waste of relatively low risk, it may be aesthetically offensive by nature and require careful treatment as part of the overall waste management strategy. Clinical waste disposal needs to be subject to control, not only because of the inherent risks they pose, but also because of legitimate public concerns, and the occupational safety of waste collectors and waste disposal staff, who may come into contact with these wastes.

10. The proposed control strategy is as follows:

Control will be implemented in two phases. In the first phase, public and private hospitals and government clinics will be subject to control. We intend to extend the control scheme to the remaining small clinical waste producers in the second phase.
Clinical waste collectors and transporters will be required to meet the legislative requirements prescribed in subsidiary legislation. Clinical waste disposal operations will be controlled by licences.
A Code of Practice detailing the operating standards will be drafted to provide guidance to all clinical waste producers as well as collection and disposal contractors to ensure that the entire disposal operation will not pose health hazards to the workers and the public.

11. Whilst the details will be set out in subsidiary legislation, suitable provisions need to be put into the principal Ordinance. These include:

defining clinical waste;
providing for introducing licensing control on the operation of clinical waste disposal facilities and specifying technical and training requirement for collectors and transporters of clinical waste;
providing for the Chief Executive in Council to make subsidiary regulations relating to the CWCS; and
empowering DEP to implement the CWCS by phases by bringing relevant sections in effect.

12. Members will be consulted again on the detailed aspects of implementing the CWCS.

Miscellaneous Amendments

13. The opportunity is also being taken to introduce other miscellaneous amendments to the WDO to strengthen the powers and to streamline the enforcement operations. These include:

enabling the Secretary for Planning, Environment and Lands to amend the Schedule in the Waste Disposal (Designated Waste Disposal Facility) Regulation (Cap. 354, Sub. Leg.) by notice published in the Gazette. This will facilitate regular updating of the list of designated waste disposal facilities as a number of new waste disposal facilities will either come into operation or be decommissioned in the next few years;
enabling DEP to accept or reject any waste types at any waste disposal facilities designated in the schedule to the Waste Disposal (Designated Waste Disposal Facility) Regulation. This is necessary in order to maintain proper management of such facilities;
repealing the requirement of dividing a legal sample of waste into three parts during law enforcement operations,. The samples are currently kept by Government Chemist (for analysis) and by Environmental Protection Department (EPD) and the party under investigation (the person-in-charge). The latter two parts are not subject to preservation measures and there is no means to prevent tampering with such samples. The analysis of these samples is unreliable and would not be admissible in court; and
repealing section 16(4) of WDO (under which disposal of waste, other than chemical waste, on unleased land is not subject to a license) so that disposal of waste in any facilities on unleased land will be made subject to licensing control by DEP under s.16. This will ensure consistency in regulatory control on Government as well as private land.

Legislative Timetable

14. It is planned to introduce the Waste Disposal (Amendment) Bill for First and Second Reading in June 1999. Upon the enactment of the Bill, the necessary subsidiary legislation to implement the CWCS will be introduced.

Publicity and Public Consultation

15. Extensive consultation has been conducted with the medical profession on the proposed CWCS. Groups consulted include the Hospital Authority, private hospitals, the Hong Kong Medical Association, Estate Doctors Association and Environmental Contractors Management Association. Representatives generally supported the CWCS, and have raised useful technical comments. They have also raised concerns over the level of charging should the waste be disposed of in designated facilities. These views will be taken into account in drawing up the necessary subsidiary legislation and the code of practice.

16. EPD has also introduced administrative measures to implement the Basel Ban in December 1998. Relevant sectors, including the recycling trade, shipping companies and trade associations have been notified. The proposed legislative amendment will formalize the present arrangements. All relevant sectors are being informed of the proposal to tighten control on the disposal of imported non-hazardous waste.

ADVICE SOUGHT

17. Members are invited to comment on the various amendment proposals set out in the paper.

Planning, Environment and Lands Bureau
February 1999

Appendix

States Included in Annex VII of the Basel Convention