27. Upon request of the Chairman, AD(EA)/EPD undertook to distribute a copy of the Guidance Notes to each Member of the Council when the Notes were finalized.
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.
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.
52. The Chairman said that the Subcommittee would enlist experts' assistance in considering certain EIA reports when necessary. In response to a Member's question, AD(EA)/EPD said that seeking comments from experts outside the Council would not violate any provisions under the EIA Ordinance.