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Advisory Council on the Environment

Confirmed Minutes of the 63rd Meeting of the Environmental Impact Assessment Subcommittee of the Advisory Council on the Environment held on 8 October 2001 at 4:00pm

Present:
Professor LAM Kin-che (Chairman)
Mr. Otto POON (Deputy Chairman)
Mr. Barrie COOK
Professor Anthony HEDLEY, BBS, JP
Dr. HO Kin-chung
Mr. Peter Y C LEE, SBSt.J
Mr. LIN Chaan-ming
Dr. NG Cho-nam
Miss Alex YAU
Miss Petula POON (Secretary)



Absent with Apology:
Mrs. Mei NG

 


In Attendance:
Mr. Elvis AU Assistant Director (Environmental Assessment & Noise), Environmental Protection Department (EPD) (AD(EN)/EPD)
Mr. Cary HO Senior Nature Conservation Officer (South), Agriculture, Fisheries and Conservation Department (AFCD) (SNCO(South)/AFCD)
Ms. Cora SO Executive Officer (C), Environment and Food Bureau


In Attendance for Agenda Item 3:

Mr. Simon HUI Principal Environmental Protection Officer (Audit & Assessment), EPD (PEPO(AA)/EPD)
Mr. Wang YUEN Senior Environmental Protection Officer (Territory Assessment), EPD (SEPO(TA)/EPD)
Mr. P K CHAN Senior Nature Conservation Officer, AFCD (SNCO/AFCD)
Mr. John KWOK Senior Landscape Architect, Planning Department (Plan D) (SLA/PlanD)
Miss Winnie LAU Senior Town Planner, Plan D (STP/PlanD)

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Agenda Item 1 : Confirmation of Minutes of 62nd Meeting held on 3 September 2001

The minutes were confirmed without amendments.

Agenda Item 2 : Matters Arising

Para. 26 : Supplementary paper on management of meanders 2. Members noted that the Drainage Services Department (DSD) was preparing the paper on the management of meanders.

Para. 29 : Visit to River Indus and River Beas

3. The Chairman said that the Secretariat would liaise with DSD for the detailed arrangements and would let Members know in due course.

Agenda Item 3 :Draft EIAO Guidance Notes

4. The Chairman welcomed PEPO(AA)/EPD, SEPO(TA)/EPD, SNCO/AFCd, SLA/PlanD and STP/PlanD to the meeting. PEPO(AA)/EPD said that the Guidance Notes (GNs) were drawn up to improve the EIA process. Some of the proposals were derived from the experience of EPD and other authorities in dealing with different cases, and some from discussions at Liaison Group meetings.

5. The Chairman suggested discussing the GNs under three broad categories according to the ambits of departments.

GN 1-3, 5-6 under EPD

6. The Chairman recalled that at several previous meetings, Members expressed concern over the realization of commitments undertaken by project proponents. He was pleased to note that GN5 (Implementation Schedule) provided a clearer guidance for the parties concerned. In particular, contractors would be more certain of what they were expected to carry out before submitting a tender for the projects.

7. PEPO(AA)/EPD said that many contractors had reflected that some measures proposed in EIA reports were not practicable. Without knowing the objectives of the mitigation measures, they had difficulties to suggest alternative arrangements. The format of the implementation schedule suggested in GN5 set out clearly the details of the mitigation measures so as to facilitate their implementation and enhance their practicability.

8. A Member commented that the implementation schedule was useful but suggested EPD to re-consider the order of GNs so that the cross-referencing between them would be more logical. She had no major comments on the content of the GNs at the meeting but would submit any further inputs in writing.

9. AD(EN)/EPD informed the meeting that there were opposing views as regards GN3 (Flexibility and Enforceability of Mitigation Measures Proposed in an EIA Report). Some members of the public expected more certainty about measures to be carried out whereas contractors asked for flexibility in carrying out the measures just in case there were minor changes in project design. He said that GN3 reconciled those views and encouraged parties concerned to be more up-front during the early stages of the EIA process.

10. A Member said from the angle of contractors that it was important for them to know their obligations before entering into contracts, otherwise they would experience difficulties in carrying out non-specific tasks. AD(EN)/EPD said that the intention of the proposed implementation schedule in GN5was exactly to lay down clear terms for contractors to follow. Also, it could prevent project proponents from shifting responsibility to the contractors by using vague terminologies in EIA reports.

11. PEPO(AA)/EPD said that many project proponents had not been taking full advantage of the Environmental Study Management Group (ESMG) meetings referred to in GN2 (The Role and Operation of Environmental Study Management Group). The ESMG mechanism was introduced ever since the EIA process existed. It was proven to provide a useful forum for resolving issues in the early stages of the EIA process and allow direct and up-front discussion between proponents, consultants and the relevant authorities. EPD would continue to encourage project proponents to make full use of the ESMG mechanism.

12. The Chairman asked whether there was any dispute-resolution system if issues could not be resolved during the ESMG stage. In reply, PEPO(AA)/EPD said that the ESMG provided a forum for discussion. It might not be able to resolve all problems identified. There were other ways within and outside the Technical Memorandum (TM) for resolving conflicts over EIA studies.

13. A Member referred to para. 7 of GN2 which stated that ESMG meetings were to be conducted on an administrative and advisory basis if convened before the formal submission of EIA reports. However, there was no mentioning of the nature of ESMG meetings if convened after submission of EIA reports. The standalone sentence seemed to imply that the latter case had legal implications.

14. In response, PEPO(AA)/EPD said that ESMG meetings conducted before and after formal submission of EIA reports had slightly different purposes. Before the submission, the meetings would usually involve general enquiries about the EIA process; after the submission, the meeting would discuss specific issues in the reports and try to resolve minor problems arising from the reports.

GN7 under Plan D

15. SLA/PlanD briefed Members on the draft GN7 and said that the draft had incorporated preliminary comments by the Hong Kong Institute of Landscape Architect.

16. A Member agreed with SLA/PlanD's point that installing noise barriers was only one of the solutions to abate traffic noise pollution. The administration should also use other means such as traffic management. One should be careful not to resolve noise problem by creating other forms of pollution best illustrated by the noise barrier at Wong Chu Road in Tuen Mun. The noise barriers which were painted bright blue at Wong Chu Road did not blend with the surroundings and were visually very intrusive. Another Member echoed that Member's point but said that some cut slopes treated by sprayed concrete method had a more serious visual impact than noise barriers.

17. AD(EN)/EPD explained that unlike new development areas, the existing urban areas often lacked space which could be used as setback and buffer distance. However, he agreed that Hong Kong could do a better job in introducing more creative designs for noise barriers. He said that some beautifully designed noise barriers in European countries had actually become local landmarks. SLA/PlanD informed Members that the Highways Department already had a committee, Advisory Committee on the Appearance of Bridges and Associated Structures (ACABAS), to vet the designs of noise barriers, including aesthetic designs.

18. A Member pointed out that town planning drafts were subject to frequent revisions as a result of which affected the progress of development projects. He considered that Plan D should have clearer and more specific guidelines so that town planners could save time from re-drafting plans. In reply, SLA/PlanD said such amendments were to accommodate changing needs of the society e.g. Plan D had recently consulted the public and professional bodies on the Study of Urban Design Guidelines for Hong Kong. Comments received would be duly considered for incorporation into the guidelines.

19. A Member said that the present GN7 only dealt with designated projects but there had been significant visual impacts arising from non-designated projects. He asked whether it was possible to map out landscape sensitive areas in Hong Kong so that an EIA would be required if a project impinged on those areas. As regards cut slopes, he was aware that there were guidelines on the design of cut slopes but visual-enhancement was often subject to the availability of resources in individual departments.

20. A Member said that unlike air and noise quality, visual impacts were subjective. However, planners should take a proactive approach in enhancing the visual impacts of the projects rather than mitigating the adverse impacts after damage was done. He supported another Member's suggestion on mapping out landscape sensitive areas. 21. SLA/PlanD thanked Members for their comments. He said that apart from Plan D there were separate landscape units in Architectural Services Department, Civil Engineering Department, Highways Department, Lands Department and Territory Development Department each responsible for ensuring the quality of landscape works for projects within the purview of the department. He understood that EPD had prepared a booklet on the design of noise barriers which would help improve the design of future noise barriers. He also shared a Member's point on availability of resources and admitted that some enhancement works had gray areas in funding, management and maintenance aspects and these required decision at a higher level.

GN4&8

22. SNCO/AFCD briefed Members on the two GNs related to ecological assessment. 23. The Chairman said that given the complexity of ecological assessment, a further meeting might be warranted for in-depth discussion. He therefore asked Members to point out only the salient issues for AFCD's consideration.

24. A Member referred to a statement made by Mr. Gordon Woo on a newspaper that "categorically ecological assessment will be the ruin of development in Hong Kong" and expressed disappointment towards Mr. Woo's attitude. On a separate point about habitat compensation, that Member said that expert opinions on the principles of "like for like" and "no net loss" about the Sheung Shui to Lok Ma Chau Spur Line EIA could be so different that EIAs would default to unsatisfactory outcome until the dispute was resolved.

25. A Member noted from a recent study report prepared by some postgraduates that there was a clear deficiency in conducting soil survey in EIA studies. He stressed that obtaining accurate baseline data of the land affected was crucial in designing effective mitigation measures. For example, the ecological survey of the EIA of Route 9 which cut through mature though secondary woodland was later found out to have been conducted only on the fringe of the woodland. He urged the Authority to put emphasis on the importance of a proper soil survey in EIA study and set out guidelines for such surveys in the TM.

26. A Member pointed out that the TM gave guidance in avoiding or preserving ecologically valuable habitats and endangered species, but overlooked the adverse chain reaction in the ecology cycle when less valuable habitats or common species were affected. He considered that the latter point should be included in the TM as well. He also suggested that ecologically assessment should include unused as well as active agricultural land, both of which had conservation values.

27. In reply to two Members' questions, SNCO/AFCD said that a wet season survey would be required for rivers/streams and seasonal wetlands to ensure its validity. As regards survey methodology on different habitats, SNCO/AFCD said AFCD would in due course issue separate guidelines.

28. The Chairman thanked the departments for the briefing and said that the Subcommittee had taken note of the GNs. He commended that the GNs were useful materials to enhance the transparency and effectiveness of the EIA process and encouraged Members to put in any further written comments. The issues related to ecological assessment would be discussed in detail at a future meeting.

Agenda Item 4 : Environmental Impact Assessment Ordinance Observations About the Statutory EIA Process Arising from the Appeal Board Determination
(ACE-EIA Paper 14/2001)

29. AD(EN)/EPD said that the paper set out the key reasons for dismissing the two appeals related to the Lok Ma Chau Spur Line EIA, the key observations and suggestions made by the Appeal Board to improve the EIA process. EPD accepted entirely the suggestions made by the Appeal Board and would put them into practice in future.

30. The Chairman asked Members to highlight major comments on the paper with particular regards to para. 26 and then focused on discussing how the Subcommittee could assist in improving the EIA process.

31. A Member echoed the point made in para. 26(b) that it was important to identify key issues to be addressed in the EIA study at the stage of project profile. He said that he had been writing in his comments and hoped that other Members would do the same.

32. A Member said that the paper was well prepared and the only suggestion he had was to draw up guidelines on the precautionary principle which at present was a vague concept difficult to apply.

33. A Member said that there should be ways to ensure the Director of Environmental Protection (DEP) to make effective decision on whether an EIA report met the requirements of the brief and the TM before allowing the report for exhibition under section 6(3) of the EIA Ordinance.

34. A Member commented that tax-payers would have saved the money involved in the appeals on the Spur Line case had there been better cooperation between the project proponent, the Authority and the Administration.

35. A Member agreed that cooperation between the relevant parties was no doubt important. However, he had reservation on DEP appearing a few weeks ago in a press conference on the tunnel option of the Spur Line together with the project proponent. During the press conference, it was announced that the new tunnel option would work even before the EIA study was completed. As regards the tunnel option, he agreed that it would be a better option as it could avoid the wetland in Long Valley and Kwu Tung and that the project proponent should have considered this option earlier.

36. A Member echoed the previous Member's comments regarding the press conference. He also agreed with another Member's point in para 34 above and disapproved of squandering public money in the EIA as well as the appeal procedures. In response to Members' comments, AD(EN)/EPD clarified that though DEP appeared at the press conference, he did emphasize that an EIA study on the tunnel option was still needed and that the EIA report would go through public consultation process in the same manner as other designated projects.

37. A Member also commended that the paper was well prepared. He, however, felt that the degree of influence of the Subcommittee's comments on DEP's decision was not clear in the legal context under the EIA Ordinance. The Chairman said that the Judgment of the Appeal Board did not refer to the Subcommittee but the ACE in general. Noting that one of the reasons for dismissing the appeals was not to circumvent the participation of the public and the ACE, the Chairman reckoned that the ACE's comments had been given due recognition in the EIA process.

38. SNCO(South)/AFCD welcomed Members' comments, in particular Mr. Poon's suggestion on the precautionary principle. He said that AFCD would consider drawing up the guideline as suggested. The Chairman said that the Subcommittee could further discuss issues related to ecological assessment at a future meeting.

Pre-Submission of EIA Reports - Consultation period on project profile

39. The Chairman said that the importance of voicing comments at the stage of project profile was well noted. However, given the 14-day consultation period, the Subcommittee was unable to provide collective inputs to DEP having regard to its monthly meeting schedule. He asked whether it would be possible to extend the 14-day consultation period on project profile.

40. In response, AD(EN)/EPD explained that the EIA Ordinance required DEP to respond to the project proponent within 45 days after receiving a project profile. EPD would exhibit the project profile on the second day receiving it, have detailed dialogues with the relevant authorities and start drafting the study brief having regard to comments received on the project profile. Usually the study brief was finalized on the 40th or 41st day. To extend the consultation period for project profile would cut short the time for drawing up the study brief. On the other hand, extension of the 45-day period might invite criticisms of delaying development projects.

41. In reply to a Member's question, AD(EN)/EPD said that belated comments on project profile would not be taken formally as comments arising from consultation but if the comments touched upon genuine concerns, EPD would take them into account when drafting the study brief.

42. A Member recalled that the Subcommittee had discussed the subject on project profile before. It was concluded that there was no need to submit a collective view of the Subcommittee but individual Members were encouraged to write to EPD. AD(EN)/EPD said that EPD would prefer having a wide range of views at the project profile stage so as to ensure the comprehensiveness of the scope of the study brief.

43. A Member considered that even if the Subcommittee would not submit a collective view on project profiles, early communication within the Subcommittee about potentially controversial issues would be beneficial. Following this point, another Member asked whether Members' comments on project profiles could be circulated. The Chairman said that if Members would copy their comments to him by e-mail, he could circulate the comments to all Members.

44. The Chairman re-affirmed that there was no need to submit a collective view of the Subcommittee at the stage of project profile but encouraged Members to write in individual comments and send a copy of the comments to him for circulation. He also proposed that EPD should keep an open mind to review the need to extend the consultation period for project profile.

Submission Stage

45. The Chairman noted from the appeal process that the EIA Appeal Board paid due regards to the discussions of the Subcommittee and the council. He therefore reiterated that there must be a quorum at meetings, in particular when decisions were made. The quorum should be half of the number of the Subcommittee Members as agreed earlier on. He also pointed out that the minutes of the meetings were taken seriously by the Appeal Board and confirmed that the current style of the minutes were about right and different views of individual Members should be clearly recorded. Furthermore, he proposed and Members agreed to continue with the current practice of having close-door discussions (in the absence of project proponents) only when there was a need. Finally, he asked why the views of the ESMG had not been included in recent ACE-EIA papers. In response to the last point, AD(EN)/EPD said that the views of ESMG had been taken out to avoid causing confusion to Members.

46. The Chairman emphasized and AD(EN)/EPD confirmed that the Subcommittee/Council's consideration of approving or rejecting an EIA report should be entirely on environmental grounds. Moreover, since the approved reports would be put on the EIA register and serve as reference materials, the Chairman said that the reasons for supporting or not supporting EIA reports should be clearly spelt out.

47. The Chairman pointed out the distinction between conditions for supporting an EIA report and conditions of an environmental permit. He said that conditions should only be imposed on a project when the Subcommittee/Council considered it environmentally acceptable.

Conditions recommended by the Subcommittee

48. The Chairman added that when the Subcommittee recommended conditions for approval of an EIA report, care should be taken to make sure that the conditions were within the ambit of the project proponent. AD(EN)/EPD said that the Subcommittee could suggest improvements which involved parties other than the project proponent. Discretion under Section 4.5.2

49. On a related point, AD(EN)/EPD said that the Appeal Board reckoned that the Authority could exercise discretion under section 4.5.2 of the TM under which conditions could be imposed if the amendments to an EIA report would not affect the validity of the assessment and the overall results and conclusions of the EIA report. The Appeal Board also asked the Authority to be reasonable and have due regard to the efficiency of the decision making process when exercising this discretion.

Study brief

50. The Chairman noted that the Appeal Board had suggested that study briefs should be written in more focused and specific terms. AD(EN)/EPD confirmed that the Appeal Board suggested the Authority to particularize the concerns arising from public consultations and then lay down terms in the brief as specific as possible.

Informal dialogue

51. The Chairman noted that project proponents were encouraged to have informal dialogues with the Subcommittee at early planning stage. However, he had reservations about receiving briefing or holding discussions with project proponents before the formal submission of EIA report for fear that they might abuse the purpose of those meetings by quoting records in other papers as the Council's green light to their projects. He asked whether there was any overseas experience in conducting such dialogues in good faith and on a non-committal basis.

52. In reply, AD(EN)/EPD said that there were good overseas practices such as setting out the ground rules of the dialogues. Furthermore, all parties involved should agree on the understanding that the discussions held would not be prejudiced during statutory process. He was of the view that informal dialogues could be helpful in the EIA process and should be arranged entirely on a voluntary basis.

53. The Chairman said that EPD could encourage project proponents to have informal dialogues with the Subcommittee when their projects were potentially controversial. The dialogues could take place after the stage of project profile. Project proponents should provide detailed information on the preliminary assessment on different alignments and options so that the Subcommittee could at least comment whether the alignment and option selected was a non-starter or not.

54. SNCO(South)/AFCD said that alternatively informal dialogues could take place before the stage of project profile so that project proponents could have an opportunity to have early focus on the Subcommittee's concerns and adjust the alignment and option, if necessary, before the starting of the 45-day chain of actions by the Authority.

55. A Member supported having early dialogues with project proponents but was concerned over the possibility of their abusing the mechanism. The Chairman said that clear ground rules as mentioned by AD(EN)/EPD earlier on should be set out for the proponents to follow. Another Member agreed with the Chairman and suggested widely disseminating the ground rules when finalized.

56. In reply to the Secretary's enquiry, the Chairman and Members agreed that no minutes should be taken for informal dialogues. The Chairman also said that when approached by a project proponent, either the Chairman himself or the Deputy Chairman would decide whether an informal dialogue should be convened.

Quality of EIA Reports

57. The Chairman said that the Subcommittee had difficulty in assessing an EIA report which was incomprehensive in itself.

58. A Member agreed with the Chairman but said that it was not within the ambit of the Subcommittee to ensure the quality of EIA reports. Nonetheless, Members' concern should be made known to relevant professional bodies and authorities.

59. A Member shared another Member's point and said that it was the reality in Hong Kong that more and more consultants were under financial pressure, thus occasionally compromising the quality of EIA study.

60. AD(EN)/EPD said that the dismissal of the two appeals raised the awareness of potential project proponents and consultants about the quality of EIA, as he had noticed in recent Liaison Group meetings. Moreover, the GNs to be issued shortly would help raise the standards and set the benchmarks for EIA study as well. With reference to a Member's point, AD(EN)/EPD considered that part of the problem related to the tendering mechanism in which a contract would usually be awarded to the consultant offering the lowest cost. Another problem was that the contract was priced on a lump sum basis which discouraged consultants to do additional work even when the need arose in the middle of the study

61. A Member said that there were two means to improve the quality of an EIA. One was to make available a sound site-specific ecological database; the other was to validate in the context of Hong Kong models adopted by overseas countries in EIA study. The Chairman said that the point about ecological database could be discussed at future meeting. On the latter point, AD(EN)/EPD clarified that the models used for air quality and noise assessments had already been validated in Hong Kong. That Member added that the Subcommittee could invite EPD staff to verify technical issues like the effectiveness of the models used in an EIA.

62. A Member asked whether there were clear standards or guidelines on EIA study which consultants could follow. He also asked whether any detailed fisheries survey had been conducted in Hong Kong and if so, whether benchmarking of the data was available for the reference of consultants. He commended that there was a fisheries database in New Zealand in which the number of different species of fish in a specified area was readily available.

63. In response, the Chairman said that the standards and guidelines laid down in TM provided a common basis for compliance by project proponents and consultants and for vetting of EIA by EPD and the ACE. As regards measurable standards for ecological assessment, SNCO(South)/AFCD said that unlike air or noise quality which could be measured readily, ecological assessment involved living organisms. It would be difficult to specify, for example, a minimum number of birds of a certain species must be maintained in a certain area. However, a Member's concern over ecological database in Hong Kong was well noted and he would take it up with his department for further consideration.

64. The Chairman concluded that project proponents should be encouraged to have early dialogues with the Subcommittee at the stage of project profile, in particular with regard to the pros and cons of different alignments and options. The Subcommittee was concerned about the quality of some EIA reports and would like to bring to the attention of various parties. Also, changes in the tendering system as well as the funding mechanism could help ensure the quality of EIA reports. Finally, an ecological database, both terrestrial and aquatic, should be made available as soon as possible.

Agenda Item 5 : Any Other Business

Monthly Update of Applications under EIAO

65. Members noted the updates.

Tentative Items for Next Meeting

66. Members noted that there was no item scheduled for the next meeting so far.

Agenda Item 6 : Date of Next Meeting

67. The next meeting was scheduled for 5 November 2001 at 4:00pm.

EIA Subcommittee Secretariat
October 2001

 
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