Agenda Item 1 : Confirmation of Minutes of 56th Meeting held on 18 December 2000

2. The minutes were confirmed without amendments.

Agenda Item 2 : Matters Arising

Para. 10 : Details of site selection of Yam O Tuk Fresh Water Reservoir

3. The supplementary information provided by the Civil and Engineering Department (CED) was circulated to Members and no further comments were raised.

Para. 27 : Residual concerns on the EM&A of Penny's Bay Reclamation Project

4. A Member noted from CED's reply to his comments that one of the main mitigation measures for the water quality impact of the Penny's Bay Reclamation was the "installation of suitable barriers in advance of filling activities to prevent fine sediment lost to suspension". He wondered whether the barriers included silt curtain and whether the same mitigation measures were carried out at Yam O where the dredged material was disposed of. He said that the fishermen at Ma Wan had been complaining that the alleged fish kills were due to mud disposal at Yam O.

5. In response to that Member's question, PEPO(AA)/EPD said that the 'barriers' referred to seawalls which would be constructed to at least 200m ahead of the point of filling as required by the permit conditions. On mud disposal at Yam O, he said that the ACE had considered and endorsed the EIA report of the project. But in view of what happened recently, CED had taken a precautionary step and had already suspended dumping activity at Yam O.

6. That Member queried whether the 4m deep silt curtain was effective while the sea was 12m in depth. PEPO(AA)/EPD responded that EPD had requested CED to conduct water quality testing to ascertain the effectiveness of the deeper silt curtain. The testing results had yet to be received. AD(EA)/EPD supplemented that as stated in the EIA report, the major measure to control sediment dispersion was to control the rate of dredging and filling at the sites concerned. The EIA report was endorsed by ACE and approved by DEP with conditions.

7. That Member noted from CED's reply that the fish-kills were caused by infection with parasites and bacteria. However, the fishermen suspected that the fish had become more vulnerable to parasites and bacteria due to long-term exposure to water of high suspended solids (SS) level, and the fishermen requested compensation for their loss in fish-catch. AD(Conservation)/AFCD said that CED's response had incorporated AFCD's inputs on the cause of fish kills, and AFCD had granted ex-gratia payments to fish farmers and practicing fishermen.

8. A Member commented that water current during different seasons must be taken into account when water samples were taken at the dumping site and Fish Culture Zones (FCZs) for monitoring purpose, otherwise the monitoring data would not be accurate. He said that fishes would easily suffocate if the SS in the water were trapped in the gills of the fish. The Chairman said that the EIA study had taken into account the effect of water current. AD(EA)/EPD supplemented that under the conditions of the permit, the proponent was required to conduct baseline monitoring before the work started. The baseline SS level recorded in April 2000 ranged from 5mg/L to 48mg/L. The monitoring results so far showed no signs of exceedances. SEPO(AA)/EPD added that monitoring measurements were taken three times per week and the frequency would increase if there were any exceedances of the Action or Limit levels. He said that the fishermen concerned had been consulted on the time and place to take water samples so as to collect the worst-case water quality.

9. A Member asked whether the consultants had made inaccurate predictions on the SS level for the worst case scenario because the EIA report stated a maximum of 39mg/L whereas the actual highest monitoring data was 48mg/L. SEPO(AA)/EPD explained that the 48mg/L was the highest baseline measurement before work started and the EIA report predicted that there would be a maximum increase of about 12mg/L at Ma Wan FCZ due to the cumulative impacts of all nearby marine works, of which about 2 mg/L caused by Penny's Bay reclamation. Therefore, the predictions in the EIA report were in order.

10. A Member pointed out that the sensitivity of different fish species to water quality was different and that should be taken into account. Another Member added that the impacts also varied with the different stages of different levels of fish and marine life. He was also concerned about the accuracy of data due to possible time lag between samples taking at different monitoring stations. The Chairman said that the present meeting was not to re-examine the EIA report which had already been endorsed by ACE, but to consider whether the EM&A programme was effective in detecting lethal impacts of the project on water quality. AD(Conservation)/AFCD added that the EIA Subcommittee was not the right forum to discuss the issue. There might be other forums, say in AFCD, for the subject. -

11. In response to a Member's enquiry, SEPO(AA)/EPD said that the average SS level for the last three months recorded at Ma Wan was about 20mg/L whilst the range was from 5mg/L to 30mg/L. Feedback from the fishermen indicated a low fish mortality rate during the same period.

12. A Member asked whether the Government would conduct independent check on the EM&A done by the contractors. Another Member also asked whether EPD would carry out its own appraisal on the performance of consultants. PEPO(AA)/EPD said that EPD had its own consultants to conduct random checks on the monitoring data reported by the contractors. AD(EA)/EPD said that actions would be taken if there were any alarming discrepancy between EPD's data and the contractor's data.

13. In reply to the Chairman's enquiry, AD(EA)/EPD said that the random checks were done in surprise to ensure the reliability of the results.

14. A Member said that currently dumping activities at Yam O were exempted under the EIA Ordinance and it was difficult for Government to take any enforcement when problems arose. He asked how EPD would close such a loophole. In response, AD(EA)/EPD said that there was no evidence showing that the fish kills in Ma Wan were caused by dumping at Yam O but CED had taken a precautionary step to stop the dumping activities. EPD would continue to keep an eye on the monitoring data to detect any exceedances. He said that more and more projects were coming under the control of the EIA Ordinance. As regards the remaining exempted projects which were authorized before the enactment of the Ordinance in April 1998, EPD would urge the proponents to minimize adverse impacts wherever possible. He added that dumping activities would still be controlled under the Dumping at Sea Ordinance. The Chairman said that it would be reasonable for the Council to ask the proponents in future discussion of EIA reports whether there were any exempted projects in the vicinity. If so, the Council could lay down as a condition that the cumulative impacts should be environmentally acceptable.

15. In reply to a Member's question about the Chok Ko Wan Link Road project, PEPO(AA)/EPD said that the project was included in the environmental assessment of the Northshore Lantau Study under Schedule 3 of the EIA Ordinance. The ACE had endorsed the EIA report submitted by CED. 16. In conclusion, the Chairman said that the EIA SC and the Administration noted a Member's concerns; the Subcommittee should ask project proponents in future EIA report discussions to clarify if there were any exempted projects in the vicinity of the project concerned; and the Subcommittee would invite proponents to meetings should there be problems with the projects.

[Post meeting note : The Penny's Bay website address is: www.pennysbaystage1.com.hk.]

Briefing on EIAO Process

18. AD(EA)/EPD introduced PEPO(TA)/EPD, PEPO(AA)/EPD and PEPO(UA)/EPD to Members. PEPO(AA)/EPD then briefed Members on the EIAO Process.

19. A Member enquired about the number of inspections conducted and the number of warnings/prosecutions taken out in relation to EM&A procedure after the enactment of the EIA Ordinance. PEPO(AA)/EPD replied that from April 1998 to February 2001, a total of 1104 site inspections were conducted and 2919km of helicopter surveillance were carried out. AD(EA)/EPD said that about two dozens of warning letters were issued against late submissions of reports or potential incompliance with the Ordinance. He emphasised that those irregularities were not offences and the deterrent effect of the Ordinance seemed to be adequate. He added that EPD was seeking legal advice on a few cases which might warrant prosecution.

20. A Member was concerned about how Government would deal with infringement of environmental law. He pointed out the concern that under some other ordinances, there were offences in which no prosecution were taken despite a number of warning letters had been issued. AD(EA)/EPD said that warning letters were issued to potential offenders. EPD would not hesitate to proceed with prosecutions against those who committed an offence. On the Chairman's question of penalty under the EIA Ordinance, AD(EA)/EPD said that for first offence, the maximum penalty would be HK$2 million and 6 months' imprisonment.

21. A Member noted that most development projects were initiated by the Government. He asked whom EPD would prosecute if an offence was committed. AD(EA)/EPD said that they would write to the Director of the department concerned to ask him to stop the offence and at the same time prosecute the contractor of the project, who was required to abide by the permit conditions.

22. In reply to a Member's follow up question, AD(EA)/EPD said that if the contractors considered that they could not carry out some of the permit conditions, they should apply for variation under s.13 of the EIA Ordinance and propose equivalent measures to achieve the same environmental performance.

23. A Member asked how EPD could enforce those projects which were approved before the enactment of the EIA Ordinance. AD(EA)/EPD said that EPD had no statutory authority to control those projects but they would urge the proponents in writing to minimize adverse environmental impacts. The relevant District Councils would closely watch the projects if the construction or operation caused unacceptable impacts to the environment.

24. A Member felt that ACE, as the major party to endorse the EIA reports of projects before the enactment of the EIA Ordinance, should have a responsibility to keep in view the environmental performance of those projects. The Chairman said that if there were serious environmental problems arising from those projects, the Council could always invite the proponents to explain and urge them to rectify the problems.

25. In response to a Member's request, PEPO(AA)/EPD said that the study brief of a project was usually included in the EIA report.

26. On a Member's question about what constituted an offence under the EIA Ordinance, AD(EA)/EPD said that there were two major offences. One was when any person constructed or operated a designated project without a valid environmental permit and another was when any person constructed or operated a designated project contrary to the conditions set out in the permit. That Member then asked what would be done if monitoring data indicated exceedances in certain environmental standards after the proponents/contractors had carried out the mitigation measures set out in the EIA report and the permit conditions. AD(EA)/EPD said that under the EM&A Manual and Programme, the EM&A Action Plan would list out the actions to be taken if there were exceedances. Failure to carry out those actions would constitute an offence. If the exceedances still continued after taking those actions, the proponent concerned should propose and implement additional mitigation measures. If those measures were still unable to reduce the exceedances, the related activities must stop.

Agenda Item 3 : Modus Operandi of the EIA Subcommittee
(ACE-EIA Paper 1/2001)

28. The Chairman suggested going through the paper item by item and the rules and procedures subsequently agreed would serve as the guidance on the operation of the Subcommittee.

29. Referring to paragraph 3 of the paper on the objective of the Subcommittee, the Chairman said that the Subcommittee had also been keeping an eye on the EIA process in Hong Kong and could make recommendations through the full Council to the Administration.

Project profiles

30. Referring to paragraph 4 of the paper, the Chairman briefed new Members that EPD would notify the Subcommittee through fax when the availability of the project profile for public inspection was advertised. Members could then provide their comments on the project profile to EPD within 14 days of its being advertised. The Chairman reminded Members that at the meeting held in December 2000, it was suggested that Members should take turn to study project profiles and alert others if they spotted major problems. He asked Members whether there were better alternatives.

31. In response to a Member's question, AD(EA)/EPD said that consultation with ACE and the public on the project profiles was a statutory process under the EIA Ordinance. That Member commented that in that case, the Subcommittee had a responsibility to consider the project profiles in a formal manner. Also, if the Council should eventually reject an EIA report, providing inputs to DEP at the project profile stage could avoid being criticized later for not involving at an early process.

32. The Chairman said that given the 14-day consultation period and the monthly meeting schedule, he doubted whether it was practical for the Subcommittee to provide a collective view on the project profiles.

33. A Member asked that under the EIA Ordinance whether there was any difference between comments from ACE and those from the public. In reply, AD(EA)/EPD confirmed that they would give equal weight to both sets of comments. Another Member said that he would not worry about potential criticisms that Dr. Ng had mentioned because the general public had the same responsibility as ACE as far as public consultation on project profiles was concerned. A third Member agreed with the second Member and said that study briefs were written in a fashion that proponents should comply with the Technical Memorandum on the EIA Process (TM) which already contained most of the Subcommittee's concerns including evaluation of alternatives.

34. A Member said that his concern had not been an issue until the recent appeal under the EIA Ordinance. He envisaged that it would be a point of argument during the appeal. Another Member suggested that the Secretariat should consolidate Members' comments and relay to the Chairman and the Deputy Chairman for consideration. The latter two and the Members who had provided comments could discuss when necessary, and the finalized comments could be endorsed by the Subcommittee and sent to DEP. A third Member pointed out that comments from only 10 Subcommittee Members could not represent the view of the full Council. Moreover, commenting on project profiles would add to the burden of the Subcommittee which already had a heavy workload on studying EIA reports. The Chairman concurred with Mr. Cook's point and said that given the tight schedule for consultation, it was not practical for the Subcommittee to provide a collective view. Even if that was practical, the Subcommittee could not represent the full Council. The Chairman therefore concluded that ACE would not provide a collective view on project profiles to DEP. Nonetheless, he encouraged Members to send individual comments to DEP and alert other Members if they spotted major problems. AD(EA)/EPD said that since the duration of ecological survey was a common concern of Members, he welcome their views on that aspect so that study briefs could be drawn up properly.

Selection of EIA reports

35. The Secretary explained the logistics of the selection of EIA reports. She said that the Secretariat would receive from EPD a list of projects requiring EIA studies and circulate it for Members' selection for discussion in future meetings. The list of projects selected by four or more Members would be reported back to EPD for bringing up in due course. She suggested that since the number of Members in the Subcommittee had increased for this term, the number of Members to select a project for discussion should be revised. Members agreed that projects selected by half or more of the Subcommittee Members would be discussed.

Gazettal before approval of EIA report

36. The Chairman noted that although the Subcommittee disapproved the gazettal of projects before seeking approval from ACE, the Subcommittee was bound by the EIA Ordinance to consider the EIA report even if the project was gazetted. AD(EA)/EPD said that EPD had always requested proponents to submit their EIA reports before gazettal.

Initial assessment reports/interim environmental assessment reports/planning studies

37. A Member noted that proponents often justified their gazettal by quoting their consultation with the Subcommittee on the initial assessment (IA) reports. He wondered whether the Subcommittee could refuse to discuss this kind of reports. The Chairman shared that Member's sentiment. He was particularly disappointed that even though he had explicitly told the proponents that the purpose of discussing the IA reports was not to endorse or reject the reports but to highlight the concerns of the Subcommittee, there were past encounters that some proponents interpreted the conclusion of discussion as "no adverse comments from ACE" in their presentation to the Legislative Council. He asked whether there would be any written submissions from the Secretariat or the Bureau on the Subcommittee's comments on IA reports. In reply, the Secretary said that the Secretariat would only write to DEP on the full Council's comments on EIA reports.

38. The Chairman said that despite what he mentioned, he saw no reason not to exchange views with project proponents on IA reports. A Member agreed that the process could help guide and facilitate the proponents to address major concerns during the preparation of EIA reports.

[Post-meeting Notes : The Chairman suggested after the meeting that planning studies and non-designated EIA reports should be dealt with in the same manner as IA reports mentioned in paragraph 37 and 38 above. Furthermore, he considered it prudent for the Subcommittee to state in the record that any discussions, views expressed, or statements made by the proponent in papers submitted to the Subcommittee shall not pre-empt the statutory EIA process for the application of individual environmental permit under the EIA Ordinance. Each individual project would still need to fully comply with EIA Ordinance, and to present all reasonable and practicable alternatives at the time of submission of the final EIA. There should be no presumption that the EIA report or the EP would be approved following an initial consultation.]

39. A Member was concerned that the workload of the Subcommittee would further increase if more and more proponents submit their IA reports for discussion. He suggested Members who were interested in individual projects to attend the Environmental Study Management Group (ESMG) meetings instead. The Chairman, however, alerted Members that taking part in ESMG as suggested would put ACE in a difficult position to reject the finalized EIA reports. AD(EA)/EPD agreed with the Chairman and added that ACE had a role to check against the work of ESMG.

40. A Member said and another Member concurred that it was desirable if the Subcommittee could provide early feedback to project proponents. The first Member suggested that interested Members should meet with the proponents in informal meetings so that views could be conveyed without fearing what the Chairman mentioned. AD(EA)/EPD added that government representatives could be present at those informal meetings.

41. AD(EA)/EPD informed the meeting that in some countries, the proponents organized "dialogue meetings" and different stakeholders would sit together and discuss the reports on a no-commitment basis. He said that rules would be laid down clearly to prevent the proponents to manipulate the discussion in favour of promoting their projects. Members considered this suggestion feasible. The Chairman concluded that "dialogue meetings" should be held for IA reports whilst he and the Deputy Chairman would still consider discussing certain projects in Subcommittee meetings if deemed appropriate.

Consultation with other parties

42. A Member noted in the paper that the consultation of EIA reports with District Councils and other parties could go in parallel with consultation with ACE. He considered it more desirable if comments from other parties could be made known to the Subcommittee before discussing the EIA report. He also preferred that funding for the projects should only be sought after consultation with ACE. In response, AD(EA)/EPD said that the existing practice was to send comments from other parties, if any, to the Secretariat for circulation to Members before discussion of EIA report. Proponents were also encouraged to consult other parties before finalizing the EIA report for submission. On that Member's second point, the Chairman said that the Subcommittee was under no authority to require the proponents to consult ACE before seeking funding approval. Another Member suggested that if the Subcommittee had strong views on a project, it should convey those views to the Legislative Council, in particular, the Panel on Environmental Affairs, Public Works Committee and Finance Committee.

Modus operandi of EIA Subcommittee

43. The Chairman said that it would be more realistic to limit the number of EIA reports to be considered to two at each meeting.

44. The Chairman briefed and Members agreed to adhere to the logistics set out in paragraph 7 to 10 of the ACE-EIA Paper 1/2001.

Rules of operation of EIA Subcommittee (Annex C)

Criteria for assessing EIA reports

45. A Member pointed out that the criteria set out in Annex C were prepared before the enactment of the EIA Ordinance, he reckoned that the Subcommittee should assess EIA reports in accordance with the TM and the study briefs. The meeting agreed.

46. On paragraph 1.2, Members agreed that the Subcommittee would only make recommendations to the full Council but not suggestions to the proponents or consultants. Paragraph 1.2 should therefore be deleted.

Recommendations to the Full Council

47. On paragraph 2.2, the Chairman proposed replacing "conclusion" on the first line with "consensus".

48. In reply to a Member's questions, the Chairman said that the Subcommittee would take votes to draw a conclusion if necessary, and he had no strong views on whether to draw a conclusion in the presence of proponents but he would consider it an education process if the proponents could see how Members' concerns were translated into conditions.

Logistics of EIA Subcommittee meetings

49. The Chairman said and Members agreed that setting a quorum could ensure consistency and credibility of the Subcommittee's recommendation. The meeting agreed that the quorum for Subcommittee meetings should be half the number of the Subcommittee Members. The Chairman supplemented that as discussed at the last full Council meeting, the Subcommittee would welcome other Council Members to attend meetings but they would have no voting rights.

50. A Member said that other Council Members might wish to participate in the discussions of certain reports. As they had rights to vote in the full Council, it seemed natural that they could also vote in the Subcommittee. Another Member said that as the membership of the Subcommittee was made public, people would expect that the recommendations of the Subcommittee were made by its Members. If other Council Members had the rights to vote in the Subcommittee but not committed to attend most of the meetings, the consistency of the Subcommittee's recommendations could not be maintained. A third Member said that at the last full Council meeting, the ACE Chairman and the Secretary for the Environment and Food had made it clear that Members should take into account the workload and the commitment of the Subcommittee and then decide if they wish to sign up for the whole term of office. The Chairman said that to preserve the credibility of the decisions made by the Subcommittee and to maintain the consistency, he would expect Subcommittee Members to make an effort to attend every meeting. That said, he would welcome other Council Members to join as Subcommittee Members for the rest of the term.

51. On the question of whether the Subcommittee meetings would be open to the public, the Chairman said that this should be considered after the full Council had taken a view. A Member remarked that although the Country & Marine Parks Board meetings were open to the public, its three committees remained close-door.

53. The Chairman suggested that at future meetings when the workload of the Subcommittee would lessen and the EIA appeal regarding KCRC was completed, the Subcommittee should discuss and reach a consensus on certain issues which were often debated in considering EIA reports. One of the issues would be ecological assessment including the quality, duration of the assessment and the effectiveness of the proposed mitigation measures. AD(EA)/EPD strongly supported the Chairman's suggestion and said that AFCD and EPD was preparing some guidance notes on those issues and the notes would eventually be posted on the Internet for proponents' reference. He undertook to circulate the draft guidance notes to Members for comment before finalizing them. EPD

54. In response to the Chairman's request, AD(EA)/EPD said that it was now mandatory under environmental permit conditions that proponents should attach a one-page summary of the EM&A data to EM&A reports.

55. The Chairman was concerned about the failure of some contractors to deliver what had been committed to deliver in the EIA reports. He suggested that EIA reports should include a summary of the measures to be adopted for the contractors' attention and easy reference. AD(EA)/EPD said that a number of contractors commented that some of the EIA recommendations were unrealistic and EPD was working on some guiding principles in this respect. He would seek Members' views on the principles when ready.

56. The Chairman said that he had attended some of the liaison group meetings held in the past and found them useful in identifying ways to improve the EIA process in Hong Kong and understanding the constraints of the Administration. He was glad that the Deputy Chairman could join those meetings in the future.

57. A Member felt that the Subcommittee had a responsibility for post-endorsement monitoring of EIA projects and suggested paying site visit to some major projects. He believed that such visits would not only give Members an opportunity to review the work of the contractors, but also alert contractors on their quality of work.

58. A Member asked whether it was possible to request the proponents to appoint two different consultants for conducting EIA studies and checking on EM&A data in order to avoid favoritism. The Chairman agreed that it should be encouraged.

Agenda Item 5 : Monthly Update of Applications Under the EIA Ordinance

59. AD(EA)/EPD referred to the Study on the South East New Territories Development Strategy Review and emphasised that although it was not a designated project, it was a major project worth paying attention to. He said that some proponents of non-designated projects like this one had requested to consult the full Council directly but he used to advise them to discuss with the Subcommittee first in view of the limited time in Council meetings. The Chairman said that the Subcommittee would prefer studying such reports in detail and if there were grave concerns over certain issues, they would be put forward to the full Council for further deliberation.

Agenda Item 6 : Any Other Business

60. There was no other business.

Agenda Item 7 : Date of Next Meeting

61. The next meeting was scheduled for 9 April 2001.

EIA Subcommittee Secretariat
March 2001