UNIVERSITY OF HONG KONGLIBRARIES

HKELA Newsletter

1994-95 Vol.1-2

DAFSREOT^fj

CLASS NO. (J*7

REBOUND

June 1994 Volume 1.1

HKELA NewsletterNewsletter of the Hong Kong Environmental Law Association

HKELA

How it started

T he Hong Kong Environmental LawAssociation (HKELA) was formed in

response to the growing need for a forum topromote and increase the awareness ofenvironmental law issues in Hong Kong.

HKELA was launched at the first Annual GeneralMeeting, in March 1994. It is intended thatHKELA will organise seminars, field trips andspecialized working groups to discuss specificissues. It is hoped that HKELA will be able to playan important role in influencing the environmentallaws that are currently in force as well as thosethat are being drafted.

Membership is open to all those interested inenvironmental law and already includes lawyers,engineers, scientists and other disciplines. Thefollowing sub-committees have been constitutedand are already at work to raise the awareness ofEnvironmental Law issues in Hong Kong.

Sub-committees of HKELASeminars, conferences, field trips, fundraising and social events (contact ProfessorPeter Hills, Tel 859 2720, Fax 559 0468)HKELA Newsletter (contact IanDubin, Tel 835 1129t Fax 5910558)Water/Maritime (contact TernMottershead, Te! 859 2972, Fax5593543)

Noise and Air (contact MartinDavid, Tel 810 4770, Fax 8684051)

Waste (contact Rona Westgate,Tel 810 4770, Fax 868 4051)

PRO Environmental Law (contactBryan Bachner, Tel 788 7677, Fax788 7530)External Relations (contact FredKan, Tel 868 0870, Fax 588 1318)

Students (contact Jane Dykes, Tel9221 8303, Fax 845 9892)

[SUB-COMMITTEE REPORTS ]Air and noise

T he noise and air sub-committee met on 19May. It was agreed that the sub-committee

would channel its efforts towards solving practicalnoise and air pollution issues. The first task willbe to bring to the attention of residents living inCentral and Western Districts the availability ofcompensation for the excessive noise and airpollution caused by the construction of theWestern Harbour Crossing.

Continuing with the same practical theme, futureprojects of the air and noise sub-committee willinclude a consideration of forms of low pollutiontransport (e.g. electric and gas powered vehicles)and what people affected by excessive levels ofnoise from construction works and noise fromadjacent residences may do to obtain redress.This latter topic was considered relevant giventhe publicity over the problems of the noise levelsin the vicinity of the Hong Kong Stadium.

If any members wDuld like to get involved in thenoise and air sub-committee please contactMartin David. It is through active participation bythe members of HKELA that the objectives of theassociation may be realized,

Martin David

PRC environmental law

T he sub-committee is planning to publish alegal bibliography on sources concerning

environmental law in the People's Republic ofChina. The person responsible for coordinatingthe project is Mr. Ling Bing. If any members ofHKELA have any primary or secondary sourcesthat they think would be of interest to thecommunity, would you please send the materialto Mr. Ling Bing of the Department of Law, CityPolytechnic of Hong Kong, Tat Chee Avenue,Kowloon Tong.

Bryan BachnerWaste

T he Waste sub-committee met on 19 May.The sub-committee's first task will be to

highlight the relevant legislation that generators,collectors and disposers of waste should beaware of. This task will only be of a very generalnature. The sub-committee then proposes toconsider more specific areas. In the immediatefuture the sub-committee hopes to consider thedifficulty of enforcing landfill charges, thedisposal of clinical waste, the new regulations forthe disposal of chemical waste and practicalconsequences of these regulations, the problemof the ever increasing amount of constructionwaste and the difficulties of enforcing finesgenerally.

If any members would like to contribute to theWaste sub-committee's discussions could theyplease contact Rona Westgate (Tel: 810 4770Fax:8684051).

Rona Westgate

Water and maritime

T he Water and Maritime sub-committee hashad two meetings. We have defined our

immediate aims as providing a network of peopleto discuss water/maritime issues in Hong Kongand internationally, to act as a reviewer oflegislation and to educate our members inenvironmental laws. To achieve theseobjectives, we have put into place an action plan.Our first event will be a talk by David McKellarfrom Barlow Lyde and Gilbert ( See ForthcomingEvents) on International Maritime PollutionConventions in Hong Kong". We hope to arrangea series of talks and field trips. We will shortlyhave available a database of experts inwater/maritime issues. This database will furtherour networking aim and assist with members ingetting to know each other. We want toaccommodate information requests frommembers so let us know what you would like toknow! Our intention is to create a very usefulworking group and to that end we VK>uld bedelighted to see our numbers grow. If you wantto be involved itfs just a phone call or fax away,

HKELA Newsletterdo come and join us. If any HKELA memberwants more information about the sub-committeeor any of our forthcoming events please call ourChairperson, Tern* Mottershead.

Tern Mottershead

External relations

T he sub-committee is responsible for publicenquiries and all dealings with the media.

From time to time HKELA is requested to providespeakers for seminars and other events relatingto environmental law. We wish to compile aroster of speakers. Those interested to be onsuch a roster, please send Fred Kan (Fax: 5881318) a brief c.v. therein also indicating the areasof interest.

Fred Kan

i13 July. Prof. Gerhardt Vogel of the Universityof Economics, Vienna will give a talk on WasteMinimization and Recycling Activities inEurope. It starts at 1830h and will be held in theEPD's Seminar Room, 31 F Revenue Tower, 5Gloucester Road, Wanchai. There will be aninformal dinner after the talk. Arrangements forthe dinner are being made by Ms. Linden Birch ofPAA. Please call her before 5 July if you areinterested (824 7322). The projected cost of thedinner is about $250 per person.

3 August David McKellar of Barlow Lyde andGilbert vwll give a talk to the Water and Maritimesub-committee on International MaritimePollution Conventions in Hong Kong. It startsat 1800h and will be held in David's office inCentral; please call Terri (859 2972) to confirmyour attendance so that we can cater fornumbers.

Annual dinnerNovember. The Victoria Hotel has been bookedfor our first annual dinner tentatively scheduledon 18 November . It is hoped that a prominentperson will accept the invitation to speak. Furtherdetails will be announced soon.

Between 1960 and 1976 Eastern CountiesLeather pic (ECL) used PCE solvents for

degreasing pelts in their tanning business. Duringthe course of operations PCE spilt, seeped intosoil and found its way into the underlying aquifer.In 1976 the Cambridge Water Co. (CWC)purchased Sawston Mill (located over a mile

•• •••••••••••••••• ••••••• •••••••iaway from ECL's premises). As a result of theimplementation of the EC Drinking WaterDirective, tests carried out on the water in 1983revealed that it was unsuitable for public supplydue to its PCE content. CWC sued ECL for thecost of developing an alternative supply.

The decisionThe House of Lords overturned the Court ofAppeal's decision and an award of over £1 milliondamages and even larger legal costs, and foundthat ECL was not liable for the contamination ofthe underground water supply.

The implicationsThe following important points emerge from thededsion:-

Foreseeability Essential: In claims under boththe law of nuisance and in Rytands v. Fletcherliability it was necessary to show foreseeability ofthe damage in question. The standard offoreseeability must be judged in relation to theparticular defendant Since those responsible atECL at the relevant time could not reasonablyhave foreseen that the damage in question wouldoccur, the claim of CWC for damages under therule in Rylands v. Fletcher failed.

Non-natural Use of Land; The judge at firstinstance was wrong to say that the use ofchemicals on their site by ECL was a natural useof land. Therefore had the damage beenforeseeable ECL would have been strictly liableunder the rule in Rylands v. Fletcher. Lord Goffin the House of Lords went further to state thatthe storage of substantial quantities of chemicalson industrial premises should be regarded as analmost classic case of non-natural use. Prior tothis case it had generally been thought thatRylands v. Fletcher was falling out of useprincipally because it was very difficult to showthat the use of land in any particular caseamounted to a non-natural use. Now that "non-natural" use seems to have a fairly wideinterpretation, once foreseeability is present,more dams are likely to be successful in thefuture in respect of a wider dass of non-naturaluses.

Continuing Poffirffou: On the .facts it wasdetermined that the escape of PCE from ECLfsland was continuing. CWC argued that as thedamage was now foreseeable ECL should beheld liable in respett of future damage caused bycontinuing escapes. Lord Goff conduded that thePCE had become "irretrievably lost in the ground"and thus had "passed beyond the control of ECL",Consequently there may be circumstances where

HKELA Newsletterthe pollution is still within the control of a landowner. In such a case, if damage of the typesubsequently caused is foreseeable, liability willaccrue. Further, subsequent purchasers may stillrun the risk of liability for environmental damageif, at the time of the damage, harm of the relevanttype was foreseeable and it was within theircontrol to prevent the harm occurring in the futureor continuing to occur. Those acquiring landwould be well advised to investigate the conditionof the land and take requisite steps to dean up orcontain pollution which is not "Irretrievably lost".

Limitation Period: The case highlights thespecial risk associated with migrating pollution forland owners, occupiers and their insurers. Anactionable daim does not arise until the damagehas occurred and consequently daims innegligence and nuisance may be brought manyyears after the spillage or escape of the pollutantIn this case the damage arose, not when thespillage occurred but when the PCE had reachedCWC's borehole and rendered the waterunsaleable.

Lessons for Potential Defendants: This daimfailed because of the state of knowledge in 1976of a tannery using chemicals as an ancillary partof its main process. However, with growingawareness of environmental issues and thedamaging consequences on the environment ofmany activities, and the fact that manycompanies employ well-qualified spedalistenvironmental managers, a daim that thedamage is not foreseeable in any particularinstance will become less easy to sustain.Potential defendants should not forget that even ifthey were not at fault in relation to the escape ofthe dangerous materials they will still be liable forall foreseeable damage that results.

Effect on Insurers/Banks: The dedsion providessome relief for the insurance communityparticularly as the case did not apply modemstandards of foreseeability to past events.However the prospect of defendants makingdaims under their policies has not disappearedsince the level of foreseeability may haveincreased with the increased general awarenessof the effect of many substances on theenvironment. For the banking community,holding security over industrial sites, there issome comfort that dams against some of theircustomers will be more difficult to establish.

Rona Westgate

Acknowledgment Andrew Bryce (CameronMarkby-Hewitt). Liability for Pollution, theCambridge Water Case.

JPRESENTAHQN TO THE HKIEJBNVIROIxtMENTAI. DIVISION

O n 20 June Rona Westgate and Ian Dubinspoke to the Hong Kong Institute of

Engineer's Environmental Division. Ronareviewed the Cambridge Water case as set out inthe previous article. Ian provided the followingtalk on the background of the Environmental Lawmovement and of HKELA:

The environment is a very broad subject andtherefore so is the law which relates to it. Thefollowing definition is derived from the CanadianEnvironmental Assessment Act:

"environment" means the components of theEarth and includes

a) land, water and air including all layers of theatmosphere,

b) all organic and inorganic matter and livingorganisms, and

c) the interacting natural systems that include thecomponents referred to in paragraphs a) andb).

It is noted (Hughes, 1986)1 that EnvironmentalLaw is a distinct branch of the law that has beenin existence for centuries, unrecognized as aseparate discipline. Because it is such a vast andantique field, environmental law is not a coherent,logical body of principles and rules, rather it is anumber of diverse laws relating to theenvironment, found within the bodies of othermore well-defined legal disciplines, includingcriminal law, local government law, real propertylaw and most importantly the laws of public healthand town and country planning and thelaws of tort, particularly nuisance. Insome cases, the sources of currentenvironmental law date back toprehistory, for example, in some SouthPacific countries the resourcemanagement laws are founded on stoneage tribal customs (Forster, 1991)2.

As a distinct identifiable discipline oflaw, environmental law began to grewalong with the 'green movements1 whichsurfaced in the West in the sixties(Havlick, 1991)3. Ai uaWyrthe first ofthese movements appeared more orless simultaneously in Europe and NorthAmerica and grew out of the Americancivil rights movements and opposition tothe war in Vietnam. Campaigns beganto raise the public consciousnesstowards pollution issues and to createpublic interest in the Environmental

HKELA Newslettermovement This was a historic philosophicalreversal as since medieval times, the basis of allwestern attitudes towards the environment werethe religious dictions giving man dominion overthe earth' to 'tame the forests' and govern theland for exploitative purposes.

In the United States many environmental lawswere passed in the 1960s, including a Bill u<Mchhad the effect of giving the Environment legalstanding for the first time. This was the NationalEnvironmental Policy Act of 1969 (NEPA), signedinto law by President Nixon in January 1970. Forthe first time, this statute created a genera! dutythat required all '...proposals for legislation andother major Federal actions significantly affectingthe quality of the human environment./lo includean environmental impact statement.

Section 102 (2) of NEPA contained only 5 lines oflegislation, had no enforcement provisions andwas generally ignored by commentators at thetime, but it WQS the first of the extensive legalrequirements for environmental impactassessment which currently apply inapproximately 65 jurisdictions worldwide andwhich it is intended will be introduced into Jaw inHong Kong sometime in 1995.

Environmental Law is a broad topic, cuttingacross all legal fields as well as Impinging on thework of engineers and other professionals.Practising engineers are probably most interestedin the regulatory law aspects, particularly thecommand and control laws enforced for pollutioncontrol in Hong Kong, administered by theEnvironmental Protection Department namely:

* Air Pollution Control Ordinance• Waste Disposal Ordinance

Courtesy of The New Yorker

"Mrnrth* and Lee areour environmental

to be d&ing

• Water Pollution Control Ordinance• Noise Control Ordinance

However, there are a great many other pieces oflegislation which also fall under the environmentalumbrella, as set out below:

• Ozone Layer Protection Ordinance• Dumping at Sea Act 1974 (Overseas Territory

Order) (1975)• Food and Environmental Protection Act 1985

(Overseas Territories Order) (1986);

as well as the following statutes (EPD, 1992)4 forwhich the Director of Environmental Protection isnot the authority:

• Factories & Industrial Undertakings Ordinance• Import and Export Ordinance• Waterworks Ordinance• Building Ordinance• Foreshores and Sea Bed (Reclamations)

Ordinance• Town Planning Ordinance• Public Health and Municipal Services

Ordinance• Dangerous Drugs Ordinance• Pharmacy and Poisons Ordinance*. Public Health (Animal and Bird) Ordinance• Fisheries Protection Ordinance• Country Parks Ordinance• Hong Kong Industrial Estates Corporation

Ordinance• Summary Offences Ordinance• Dangerous Goods Ordinance• Radiation Ordinance• Shipping and Port Control Ordinance• Building Ordinance (Application to the New

Territories) Ordinance• Road Traffic Ordinance« Merchant Shipping (Prevention of Oil

Pollution) Regulation 1984

HKELA Newsletter• Merchant Shipping (Control of Pollution by

noxious liquid substances in bulk) Regulation1987.

This list is limited to statutory requirements inHong Kong and may not be exhaustive. Thereare other environmental laws defined by commonlaw or by international treaty which could effectHong Kong (for example, the RAMSARConvention on Protection of Wetlands Especiallyas a Habitat for Waterfowl). Obviously many ofthese laws will be of interest to practisingengineers, and that is part of the reason why theHong Kong Environmental Law association wasformed.

The United Kingdom Environmental LawAssociation (UKELA) was the inspiration for theHong Kong group. UKELA was formed in 1986 inSouthampton to address the interest inenvironmental issues among lawyers in the UK.Since formation it has grown to a formidableprofessional organization with a membershipnumbering in the thousands, and serves as animportant forum for the dissemination ofspecialist environmental law knowledge. It is verymuch a technical association, not a pressuregroup. One of its most important functions hasbeen to concentrate on assisting the UKGovernment to define Environmental Law byhelping to draft bills, by consulting on EuropeanCommunity issues and by acting as a soundingboard in the legal community.

HKELA, the Hong Kong Environmental LawAssociation, was similarly formed by a group ofindividuals with an interest in Environmental Lawissues. Like it's precursor in the UK, the formationof HKELA is in response to the growing need fora forum to promote and increase the awarenessof environmental law issues in Hong Korag. Aswith UKELA, it is intended to be very much alearned society', like the HKIE, not a politicallobby.

fan Dubin

References:1 .

Call far Sponsorship Jt AdvertisingThe HKELA Newsletter is published quarterly and is distributed

free to all members of HKELA and relevant institutes

•THEHKEUHENIETTERA C C E P T S AOVERTISEIEIITS

For information on sponsorship and advertising in the HKELANewsletter please contact Edwin Chan.

Tel: 848 2366 1168888 x 1971 Fax 8451559

Hughes, D.f Enwownentat Law,Buttemorths, London, 196&

Forster, M,, Sources and Dewafibu ofEnvironment^ Law, Seminar on The Lawof the Environment Current Issues andNew Directions, British Counci, Windsor,1991.

.,Ef A and Strategic Planning,Seminar to Enwonmental Assessmentand Planning Group, EPD, Hong Kong,1991,

4. Enwonmental Protection Department,Appication of toe Environmental ImpactAssessment Process to Major PrivateSector Projects, Advice Note 2/92, HongKong Government Hong Kong, 1992

A recent appeal against a sentence for waterpollution has underlined the dilemma faced bythe Environmental Protection Department

(EPD) in raising the judiciary's environmentalconsciousness. Ironically, tine case did not concern aserious industrial polluter, or even a repeat offender,and by choosing to get tough with the owner of littiemore than a cooked food stall the magistrate mayhave actually caused a set back to the EPD's call fortougher fines on polluters.

The Appellant was the sole proprietor of a shopwhich served cooked food. By the time of thehearing he was a relief worker and lived in a publichousing unit He had a clear record. The Appellantpleaded guilty to an offence under the WaterPollution Control Ordinance of discharging matterother than domestic sewage into a communal sewerfor the carriage of foul water. He was fined $10,000and sentenced to 3 months1 imprisonment in defaultof payment. Keith, J. allowed the appeal andreduced the fine to $5,000 and set aside thesentence of imprisonment in default of payment

The sentence of imprisonment in default of paymentwas clearly an error in the magistrate's jurisdictionand we shall not consider it further here. Indetermining the appropriate level of fine, however,Keith, J. found that the magistrate had taken intoaccount: the magistrate's own knowledge ofcontrolling water pollution gleaned from a talk to thejudiciary by officers of the Environmental ProtectionDepartment, and the need for deterrent sentences inwater pollution control as stated by these EPDofficers. Whilst the magistrate was entitled to takethe first factor into account in sentencing theAppellant, the need for deterrent sentences 'is amatter for the courts and for the courts alone1 and themagistrate was therefore not entitled to 'respond towhat she was told by those officers about the needfor deterrent sentences in this area1.

Keith, J. said that it is well established in Hong Kongthat as a general rule a deterrent sentence should notbe imposed against a first offender a rule which maybe departed from in extreme cases. A fine must alsobe within the Appellant's ability to pay. Bearing inmind the Appellant's guilty plea, his dear record, hislimited means, the importance of controlling waterpollution and the maximum sentence of $100,000and a dally fine of $5,000, the appropriate level offine should have been $5,000.

The case demonstrates three important things.Firstly environmental offenders are sentencedaccording to the same principles as apply to alloffenders, that is sentencing is based onindividualised punishment and deterrence.

Secondly, sentencing is not a science. Keith, J.halved the fine imposed by the magistrate and said

HKELA Newsletterthat was in his view the appropriate fevel. Suchjudicial assessments are subjective and it is hard tomeasure what is an 'appropriate level'. It maysurprise Keith, J. that according to 1993 statistics, theaverage fine imposed on first offenders for waterpollution convictions was $12,077 (the average fineimposed by the Tuen Mun magistracy was onlyslightly higher at $12,368). Of course, the statisticsdo not tell the individual characteristics of the offenseor the offender, such as the ability to pay. Evenmore surprising is that the average fine for repeatoffenders in 1993 was only $16,796, which seemslow if specifically deterrent sentences are reservedfor repeat offenders. There seems a case for puttingthese statistics to the court so that the judges canmake consistent decisions in the absence ofsentencing guidelines.

Finally, the EPD must now realise how fine the line isbetween Informing1 Hong Kong's judiciary about theeffects of pollution and 'influencing' their sentencingdiscretion. It is implicit in his judgment that Keith, J.believed the magistrate was wrong to be influencedby the EPD's perceived need to impose heavierpenalties on environmental offenders. If "educating*the judiciary by informal means is an inroad intojudicial independence perhaps the EPD should pressthe prosecution to take action by more formalmeans.

A procedure exists for the Attorney General to askthe Court of Appeal to review sentences which heconsiders are 'manifestly inadequate* (Cap. 221s.81A). Although this procedure is usually confinedto cases where he considers a custodial sentenceshould have been imposed, there seems no reasonin principle why rt could not be used to review lowfines imposed on offenders whose conduct is at greatcost to the environment and society at large.

Fred Kan

Legislationyd-ff The Air Pollution Confrictf (Amendment)£*•*-* Ordnance 1994 was gazetted on 31stMarch 1994. When it comes Wo force it will amendthe Air Pollution Confro/ Ordinance (APCO) in tvsoways, firstly by removing the necprement of certainomens of premises, used for the conduct erfspecified processes, to furnish the Secretary forPlanning, Environmental and Lands (SPEL) with therequisite information aid particulars under Section19. This relates to those ovuiers vvho have beeneither licensed or previously exempted. Secondlythe new Ordinance, in conjunction wth the new ArPollution Confrof (Motor Vehicle Fuel) Regulation,will amend the rules In relation to the supply andsale of petrol aid diesel, and criminalise someconduct in relation to unleaded petrol.

A Technical Memorandum For Issuing Air PollutionAbatement Notices To Control Air Pollution FromStationary Polluting Processes, issued under Section9 of APCO, published the detailed principles,procedures and standards for the assessment andmeasurement of air pollution from most stationarypolluting processes.

The Noise Control (Amendment)ordinance 1994 will make a number

of miscellaneous amendments to the Noise ControlOrdinance, in relation to construction noise permitsallosM'ng SPEL to produce technical memorandarelevant only to specific areas of the territory;clarifying that the provisions affecting themanufacture of noisy products apply only to thoseproducts intended for use in Hong Kong and that theeffect of some of the regulations may be delayed, inrelation to either importing, manufacturing orsupplying; transferring from the Governor to SPELthe power to prescribe the kinds of construction v\orkfor which a noise permit will be required and thetechnical noise emission standards for products; andmakes it an offence to contravene the provisions ofan exemption order.

Disposal (Amendment)ordinance 1994 will amend the

Waste Disposal Ordinance to provide for tightercontrol over livestock farms and livestock waste byrequiring farmers to treat their waste. The aim is toprevent pig excrement, of the equivalent amount of900,000 humans, being illegally dumped daily intoHong Kong's streams and rivers.

Administrative

T he Commissioner for AdministrativeComplaints concluded that the government

acted improperly in approving a landfill and a golfcourse in country parks. In doing so he agreed withthe High Court who issued an injunction twa yearsago when they decided that the wrong section of theCountry Parks Ordinance was used to approve theShalotung golf course project. He alsorecommended improving public consultation; aregular review of development applicationprocedures; a review of the Country ParksOrdnance; areas of conservation be identified tohelp in the decision-making process; any futurechange to park-boundaries should require formalpublic consultation and an EIA; and that properconsideration be given to all objections beforeapproval is given in principal. Overall theombudsman thought that there had been proceduralimpropriety and poor decision making by theadministration, but this was due to a belief that it wasacting in the public interest,

Courtsman who was fined $10,000 for discharging

pollutants from his cooked food stall had his

HKELA Newsletterfine halved when Keith J. felt that he should nothave been given a deterrent sentence by amagistrate who had recently attended a talk givenby the Environmental Protection Department (SeePage 6)

The Hop Hing Beancurd Factory was fined $50,000for aiiowng insufficiently treated water to polluteDeep Bay. It had three previous convictions beingfined $5,000 for each of its first two offences and$20,000 for its third offence. It has now hired aconsultant to design a proper treatment system.Nam Hing Circuit Board Company was fined$30,000 for polluting Deep Bay for a fourth time. Ithas since moved to China. Both were on the EPD'smonthly list of worst repeat offenders.

The Golden Lee Seafood Restaurant wasmeanwhile fined $50,000 and $2,500 per day for 29days ($122,500) for failing to obey a noiseabatement notice.

Universal Dockyard received a record fine of$100,000 for illegal dumping of mud in anundesignated area in doing so it beat the previousrecord, which it held, of $50,000 each for fouroffences in 1992. In defence it was submitted that itwas the master who had breached the licenceconditions and who did the actual dumping, neitherof which the company consented to. The court heldthat Universal Dockyard should be held responsiblesince they had delegated the job. The master wsasalso fined $5,000.

Wembley International, managers of the Hong KongStadium, were fined $150,000 for noise levels whichbreached a noise abatement notice during 3 AlanTarn concerts. The magistrate would not accept asa defence that the level of noise was out of theircontrol, but he did take note of their guilty plea andattempts to remedy the situation of the stadiumvtfiich is located near a residential area.

Miscellaneous

T he Environmental Pollution AdvisoryCommittee (EPCOM), whose task it is to

advise the government on pollution control mattersand ensure that new legislation is appropriate to thesituation in Hong Kongf has been renamed theAdvisory Council on the Environment (ACE). Itsterms of reference have been extended to includeconservation, indoor ar quality and otherenvironmental issues, and its membership has beenexpanded to include all the major green groups.

Dr. Stuart Reed, the Director of EnvironmentalProtection reported on last year's achievements andwhat he hopes to achieve in the coning year. Theformer included the opening erf Hong Kong's onlychemical waste treatment plant at Tang Yi and thefirst of three new high standard landfills. A total of627 prosecutions were successf J, securing fines erf

$5.43m. He hoped soon to increase staffing, phasein water pollution control lav^ relating to VictoriaHarbour, conduct a study on a waste reduction andrecycling, increase controls on vehicular airpollution, ban open air burning and requiredesignated developments to undergo an EIA beforethey are built

The amount of CFC's imported in 1994 will only be500 tonnes, one quarter of last year's amount, and isdue to fall to nil by 1996. It is predicted that someoperators of buildings will be caught short by thisreduction, leading to either no air conditioning or anincrease in smuggling from China, who has a longerphase out programme than Hong Kong.

The Planning, Environment and Lands Branch of thegovernment intends to spend $19b over five yearsin order to dean up the New Territories region,which has suffered for years from unauthoriseddevelopment, especially illegal dumping and openstorage areas servicing China - Hong Kongcontainer traffic.

David McKellar

1Notes to contributors

W e welcome any contributions the nextnev^letter which we hope to publish in

September. In that issue we expect to have thesame high standard of content including acontribution from LegCo. We would like to includeyour letters which can be on any aspect ofenvironmental law or HKELA. Please write withyour comments on the content or on anyenvironmental law issue. Please address anycorrespondence to Ian Dubin care of the EPD,SAG, 27F Southern Centre, Wanchai. As far aspossible, we prefer to receive contributions ondisc in any word processor format. We reservethe right to edit any article submitted for inclusionin the newsletter. (Deadline for contributions31 August).

Logo

N ow that HKELA is a solidly establishedassociation with a snappy acronym, it

HKELA Newsletterwould be useful to have a logo, to be used forletterhead and on cards. These two graphics havebeen prepared by two of our members. Are there

HONGKONG

ENVIRONMENTALLAW ASSOCIATION

any other artistically inclined members who wouldlike to provide a logo idea? Do any of ourmembers have any comments on these twosuggestions? We will publish all suggested logosand comments in the next issue of the newsletterand ask members to vote for their preferred logo.Please address all comments or suggestions toMarc Smith-Evans care of the EPD, WSG, 24FSouthern Centre, Wanchai.

Newsletter sub-committee

Jan DubinMarc Smith-EvansMaiyAuYeungEcfvwiChanDawiMcKeBarStephen Birkett

Fax5910SS354626693694577645199981059945252886

Phone835112983512993699236848236652642025260806

Published by the Hong Kong Environmental Law Association, 11/F Peregrine Tower, Lippo Centre, Queensway, Hong Kong.Chairperson Rona Westgate, Tel: 810 4770 Fax: 868 4051.

We welcome reproduction of all or part of the contents of this newsletter. We do not ask for reproduction or eopyri it fees, bitask that Hong Kong Environmental Law Association HKELA is acknowledged as the source of the information, and that a copy ofthe material in which the information is used is sent to us.

The information given in this newsletter is given in good faith, but without liability on the part of Hong Kong Environmental LawAssociation. Statements and opinions expressed in mis newsletter do not necessarily reflect the views of the Association.Contributors wishing to reserve the copyri it to their contributions should indicate this when submitting them, so that this maybe stated on the publication,

THIS NEWSUETTER IS PRINTED ON RECYCLED PAPER.

HONG KONG

ENVIRONMENTALLAW ASSOCIATION Newsletter

September 1994 Volume 1.2

HKELAIOGO

T hank you to everyone who contacted usabout the logo for HKELA. We finallydecided on the design above. Our many

lhanks go to Alison Sherwin (Creative Director) anddesigners T.K. Wong and Ben Kwan of ArtistreeHong Kong Limited for their many hours of hard workand effort, to produce what is an excellent image forthe Association. The support of Artistree isappreciated and one hopes that other companiesand organisations in Hong Kong will follow theirexample.

Now that the logo has been finalised we have issuedmembership cards. If you have not received oneplease contact Martin David (Tel: 810 4770). Thankyou all for your patience.

Rona Westgate

BMI>ANGBRMENT OF JUMZC \HEALTH - THE RIAL COST OF WAXBR IFGIXU1I0N IN HONG KONG J

N ow that the media commentary has dieddown on the recent cholera outbreak linkedto contaminated water, we are left with the

unanswered questions of why this happened andwhether it could have been prevented. There aremany discussions that could centre on the role ofgovernment and the right of the public to protectionof their health but these, although very worthy ofconsideration, will not be addressed here^ In thiscommentary I intend to concentrate onthe legal issues highlighted by this crisis.

What was most apparent in this matterwas government officials' lack offamiliarity with the legal remediesavailable to rectify the problem, thereluctance to enforce these and theproblems with enforcement due to thedemarcation of duties betweengovernment departments and lack ofresources.

Tuning to the issue of legal remedies,the government was faced with theneed to act urgently to prevent

contaminated water being used by fishermen to storetheir catch, by sellers to keep fish before sale, and byrestaurants to keep fish or shell fish before beingkilled and prepared as a meal. This required thegovernment to test extensively for contaminatedwater and to destroy any fish or shell fish threateringpublic health.

The government could have easily achieved whatwas expected, of it if it had introduced acomprehensive licensing system for all personsinvolved in the fish industry. This should have beenintroduced at least two years ago when theEnvironmental Protection Department advised theUrban and Regional Services Departments thatcontaminated water was being used to store fish inrestaurants.

There is provision in the Public Health and MunicipalServices Ordinance (Cap. 132) for prosecuting thosewho prepare food in such a way that it endangerspublic health. There are also specific provisionspermitting the government to regulate arid licencehawkers, markets and live fish and shell fish sellersto ensure all precautions are taken in transportingand storing live fish and shell fish so as not toendanger public health. To put it more simply, thislegislation contemplated the need for specificregulation but this was not followed through m theUrban and Regional Council Bylaws.

The licensing system that is needed should beginwith the licensing of water suppliers. Their licenceshould specify that water can only be taken fromdesignated "dean water11 locations, and falure to

Page 2 HKELA Newsletter Volume 1.2comply with the licence would result in immediaterevocation and further penalties in the form of finesand imprisonment. Similarly, hawkers', private andpublic markets' and restaurants' licences shouldalways have specified not only that hygienestandards should be observed but specifically thatfish and shellfish must be kept under certainconditions. These conditions should include tankswith uncontaminated water and sterilization systems.Given the enormous quantity of fish consumed inHong Kong each day, it is incomprehensible but afact, that Bylaws imposing stringent standards wereimplemented for meat and vegetables but not for fishor shell fish.

The recent amendments made under the PublicHealth and Municipal Services Ordinance to the FoodBusiness (Regional Council) Bylaws (15th July, 1994)and the Food Business (Urban Council) Bylaws (19thJuly, 1994) have now specified that standards will beimposed for water, quality for a "food business" thatkeeps live fish or shell fish intended for humanconsumption. These standards will be published laterby each Council in the Gazette. These amendmentsexpand the previous definition of "food business"which was generally more applicable to trade orbusiness in meat and vegetables. It is arguable (butstill unclear) that the amendments could encompassall persons involved in the fish industry fromfishermen to restaurants. It is regrettable that thegovernment did not draft these amendments to makeit very clear that all persons in the fish industry wouldbe subject to them. It is even more disappointing thatthe government did not go one step further and adopta comprehensive licensing system. At the very least,the government's minimal activity should not havefollowed an outbreak of cholera, it should have hadhappened a long time ago to ensure this neveroccurred.

As those involved in the fish industry have so fardemonstrated a reluctance to use dean water, thequestion is whether the amendments to the Bylawscontemplate the use of penalties as a deterrent to theendangerment of public health. The answer is thatpenalties are the same for this trade or business asany other in the "food business" and so, in myopinion, remain too lenient as do the fines and termsof imprisonment imposed. Licence revocation is not,but dearly should be, added as an immediateconsequence upon conviction of an offence.

A comprehensive licensing system may seem morefian the circumstances dictate or even too harsh;particularly where licence revocation will take awaytie right to earn a living but, the reality is, thatconsumers should be able to expect to buy fish orshell fish or a prepared fish or shell fish meal that willnot endanger their health. Legislation should

; mandate this expectation. People should not be in! business if their concern is more for profit than for the» well being of their customers.

A comprehensive licensing system would give thegovernment "teeth" to deal with abusers. The actiontaken by the government when the latest choleraproblem arose certainly lacked "teeth", but this wasnot due to lack of legislation as much as a reluctanceor inability to enforce the existing legislation.

It was reported that inspections by the UrbanServices Department did littfe more than destroystocks in a few restaurants (only one restaurant wasactually named) and arrest a small number ofhawkers. The destruction by the Marine Departmentof the illegal floating structures that housed liveproduce in the contaminated water of the Aberdeentyphoon shelter did little more than temporarilydisrupt that practice. Erection of signs by the MarineDepartment prohibiting fishing in the typhoon sheltershad little practical effect as there were insufficientstaff to undertake the extensive monitoring that wassubsequently required to ensure the ban wasobserved. The erection of barriers to prevent waterbeing taken from Aberdeen and Causeway Baytyphoon shelters by water suppliers left sections opento allow access to fishermen to their boats. Thisconcession also gave access to the contaminatedwater to water suppliers and hawkers. Accessremained for fishermen to stock their boats withcontaminated water into which they couid put theircatch for transportation to the point of sale.

If the government will not act (or even if it does), thetime has come for the people of Hong Kong topursue their civil remedies against those who contractto sell them uncontaminated fish and breach thatcontract so that the buyer incurs expenses formedical bills, hospitalisation and absence from work.The deterrent to citizens against pursuing their privateremedies Bes in costiy court proceedings, delays inthe court process and ultimately enforcement of ajudgment no doubt quite often against "a man ofstraw". As this is the reality, the need for thegovernment to legislate and take actioncomprehensively is even more pressing.

It was timely, a long time ago, for environmentallegislation to be reviewed and comprehensivelyamended, and this recent tragedy again highlightsthe need to undertake this review sooner rather thanlater!

Tern Mottershead

Permaculture Asia: is organizing two public events.The first, on 5 November, vM be a 2 hour pubScforum on Air Pollution, Your Health and Sdufions.The Second, on 27 November, wl be a one dayworkshop on the same subject For details contactMrs. Sweeta Motwari at Permaculture Asia, Phone891 9298 Fax 982 1452

HKELA Newsletter Volume 1.2SETAC'95 World Congress: is the Second WorldCongress of the Society of Environmental Toxicologyand Chemistry and will be held in Vancouver B.C. 5to 9 November, 1995. The Them is 'GlobalEnvironmental Protection, Science, Politics andCommon Sense' and it will feature at least onesession devoted to legal issues For details contactDr. Peter M. Chapman EVS EnvironmentalConsultants, Phone 604 986 4331, Fax 604 6628548.

Site Visits to the Chemical Waste TreatmentPlant and/or the SENT Landfill: may be arrangedfor December. Members will be informed by aseparate fax-flyer when details are confirmed.

Social events: are going to be scheduled to coincidewith future regular meetings of the ExecutiveCommittee The first one will be immediatelyfollowing the meeting scheduled for 1 December, atthe 'Cossack Bar' in the basement of the Ritz-CaritonHotel. Their current happy hour extends to nine p.m.!This should get the committee to adjourn within areasonable time! Please come along and join yourExecutive Committee and other members for a drinkfrom (say) seven p m. onwards

Annual Dinner: Just a reminder that the HKELAAnnual Dinner '94 will be held on Friday, 18November, 1994, in the Ballroom of the HotelVictoria (next to the Shun Tak Centre/HK-Macauferry pier). The cost will be approximately HK$350per person and we are very pleased to announce thatMr. Justice Litton has graciously accepted ourinvitation to be the Guest Speaker. You will receivedetails nearer the date, but mark it down for now andbegin canvassing others who may be interested inattending. Bookings can be confirmed by leaving amessage on Ms Jeamie Ng's answerphone 5465430.

wASTE PISFQS AI

T he main objective of the waste disposallegislation is to ensure that adequatearrangements are in place for the collection,

transportation and disposal in an environmentallysatisfactory manner of various classes of wastefalling within the ambit of the legislation. Theprincipal waste management law in Hong Kong is theWaste Disposal Ordinance (Cap 354), enacted in1980, which sets out the overall framework for thecollection, transportation and disposal of waste onland. Disposal of wastes at sea is controlledpresently by the Dumping At Sea Act 1974(Overseas Territories) Order 1975 although localisedlegislation is to be introduced shortly.

In addition the Water Pollution Control Ordinance(Cap 358) which aims at controlling the discharge ofeffluents into Hong Kong waters must be consideredin the context of liquid waste. This article does not

Editorial

Natural Law versus LegalPositivism

Unlll the middJe o£ tke I9tti, Hie philosophy of law,

influenced to a large extent 1% adherents ef ihelaw* philosophy. One very

of Natural faw*? as defined by theDominican philosopher Thomas A<jaiaji$ in the13th centoy included *k*r aeterm ' or eternal Isw^<feftfted (by Prof, HaymoM Wadks fromrauveisity at least) as 'Divine reason fcnown 0BJy toCod, Gotfs plan, for fhe «tiiver$ef, Tbfecombined with a second category of Jaw;

or 'natural laW*. vMvh u#a$ themanifestation of the eternal law in

\va$ 4fec0waWe by reasoa.law thus fead its origins In theauthority of the O^ato*^ intentions,

Durfag the 19lb Centaty the iswung towaxds t&e legal posiiivist' vfew,

Wackst poatiwm states that there is no oscessaiynn^tiofi betv&en tow a<i Irigfeeir uioratty1 -B: Jhe commands of human beinjgs

arginnents^ as statements of fact can. Facts cannot

there is much to be recommended witfi legalsitivi$t& $$ & 'latoialistf ww» ^lip^ftiy <te

potential excesses inherent m tkis philosophy were

la iJifs lasl pact of the twentieth cealary ffcejpejKtetotti $e i$ f o te &*lugtogextent. For example* constitiittanal

morality and would seem to be a ^manifestadon oftoM l®tf Hie^fjr Is I* Mr afe> tE^jtfMe

Enviionmental Law cam be derived i&m Btatui-al

nuisance caused by a<^MWould

HKELA Newsletter Volume 1.2attempt to address the provisions of the WaterPollution Control Ordinance. Nor does it considerany international conventions regarding waste and itsmovement across national boundaries. Insofar assubsidiary legislation is concerned there are anumber of regulations issued under the WasteDisposal Ordinance, such as the Waste Disposal(Livestock Waste) Regulations and the WasteDisposal (Chemical Waste) (General) Regulation.These regulations have the force of law. TheGovernment also publishes Codes of Practice unders.35 of the Waste Disposal Ordinance providingguidance and directions on aspects of waste.Examples of these include the Code of Practice onthe Handling, Transportation and Disposal ofAsbestos Waste and similar codes relating toPolychlorinated Biphenyl (PCB) Waste and ChemicalWaste.

Depending on the type of waste to be disposed ofcertain other legislation is also relevant such as theDangerous Goods Ordinance (Cap 295) whichcontrols the storage and transport of dangerousgoods, and the Radiation Ordinance (Cap 303) whichamongst other things controls the use and disposal ofradioactive waste. Other relevant wastemanagement legislation is tabulated in "EnvironmentHong Kong 1991"1. This article is of necessity onlyan overview of the pertinent legislation.

The Waste Disposal Ordinance (Cap 357) provides asystem of licensing both of collectors of waste (s.10)and disposers of waste (s.16). Waste is definedbroadly as any substance or article which isabandoned and includes animal waste, chemicalwaste (excluding household waste), householdwaste, livestock waste, street waste and trade waste.Those separate categories of waste are also definedin the Ordinance. The Ordinance does not currentlydefine industrial waste, clinical waste, constructionwaste or commercial waste, which would all probablyfall within the category of trade waste as currentlydefined in the <Ordinance. Given the broad range ofconsiderations for the handling, transportation anddisposal of such wastes provision should be includedin the Ordinance to deal with these classes ofwastes.

The collection of most of Hong Kong's waste iscarried out either by the government collectionauthorities (the Urban Council, the Regional Councilor the Director of Environmental Protection)) or byprivate collection contractors. The Governmentauthorities deal principally with the collection ofhousehold waste and some commercial wastes. Thecollection of .other types of waste, particularlyindustrial waste, is handled by private sectorcontractors. However there is litUe governmentcontrol of the private collectors in spite of thelicensing provisions of s.10 of the Waste DisposalOrdinance, S.10 authorises the governmentcollection authorities to license the collection ofcertain types of waste, namely household waste,street waste, trade waste, livestock waste and animal

waste. In practice there seems to be little evidenceof licensing, possibly because of administrativedifficulties with setting up such a scheme given thenumber of private sector collectors. New regulationsare now in place regarding the licensing of collectorsof chemical waste (as to which see below). Similarprovisions should be introduced for the other"dangerous" wastes such as dinical wastes wherebya collector is only licensed to collect such waste iftechnical competence is established. There are alsoprovisions in the Dangerous Goods Ordinance (Cap295) which provide some control over collectors ofdangerous goods.

The final disposal facilities are the new landfills whichare operated or to be operated by privatecontractors. Section 16 of the Waste DisposalOrdinance requires any person using land for thedisposal of waste (subject to certain exceptions) toobtain a licence to do so. This indudes the landfilldisposal facilities but it is questionable whether theuse of the word land" would cover the activities ofthe refuse transfer stations, although the intention ofthe legislation is no doubt that it should. Newregulations enabling charges to be made for thedisposal of waste by the private waste collectors atthe landfills are shorty to be introduced. The landfillcharging scheme will be a two-tier system based onthe payioad of the vehicle.

Livestock waste

The Waste Disposal (Livestock Waste) Regulationsset out provisions for handling and storage and onsite treatment of livestock waste to guard againstrisks to public health. In general the livestockcontrols ban the keeping of livestock in designatedurban areas and provide for a phased programme ofcontrols on livestock keeping in other areas. Thenew Waste Disposal (Amendment) Ordinance 1994which came into force on 1st July 1994 prohibits thekeeping of livestock in livestock restriction areaswithout a licence. The livestock restriction areas arein addtion to the livestock prohibition areas under theWaste Disposal Ordinance.

Chemical waste

The new Chemical Waste Treatment Facilities atTsing Yi provide a centralised dsposal facility forchemical wastes which were previously disposed ofin an arbitrary fashion in the harbour.

Chemic waste is defined In the Waste Disposal(Chemical Waste) (General) Regulation as anysubstance which contains chemicals listed inSchedule 1 to those regulations. These are broady"toxic aid hazardous1* wastes. Chemical wasteincludes pdydiorinated biphenyls (PCBs) andasbestos aid such items as oily sludge, tanneryoff-cuts, oil-water emulsions and inorganiccompounds. The regulation goes on to provide for

HKELA Newsletter Volume 1.2the registration of persons producing chemical waste,and the control of the possession, storage, transportand disposal of chemical waste. Waste producersshould only engage the services of a waste collectorlicensed by EPD to provide services for the collectionand removal of chemical waste. The movement ofthe chemical waste is monitored by the use of a "tripticket" to ensure that the waste is delivered to alicensed facility for disposal. This "cradle - to - grave"control scheme is intended to ensure that thechemical wastes are disposed in a satisfactorymanner. Note also the introduction of labelingrequirements set out in the code of practice for thepackaging, labeling and storage of chemical wastes.

Difficult and special wastes

These wastes have typically included sludge,excremental waste, livestock waste, animalcarcasses and condemned food. Although thedisposal of the wastes requires special handling thereare no special statutory provisions dealing with thesewastes other than the general licensing provisionsunder the Waste Disposal Ordinance. Clearly thesewastes should be collected and transported safelyand the licensing of collectors of such wastes needsto be established.

Marine waste

Dredged material, excavated mud and other spoil notsuitable for disposal either at public dumps or atlandfills can be dumped at sea under the terms andconditions of a licence issued by the Director ofEnvironmental Protection under the Dumping at SeaAct 1974 (Overseas Territories) Order 1975. Theprincipal areas of concern for the director to considerin granting licences are damage to the marineecosystem, fishery resources, human health andwelfare, shorelines and beaches. A new ordinanceto localise the legislation is planned as the currentlegislation will cease to have effect in Hong Kongafter 30th June 1997.This will strengthenexisting controls onmarine dumping andextend control on pollutionfrom maritime projects. Itis understood that marinedumping permits wouldbe issued to wasteproducers only after ananalysis of the suitabilityof the waste for marinedumping, alternativedisposal means and thetechnical merit andconduct of the dumpingoperators. This licensingarrangement would ineffect be an extension ofthe licensingarrangements for

chemical waste.

Clinical wasteAt present although some of the clinical waste isincinerated in Hospital Authority incinerators much ofthe waste is disposed of at the landfills. Newlegislation is required in the near future to provideconsistency as to which waste should be separated,incinerated and removed by special arrangementsand which shodd be discarded with ordinary refuse.Plans for a new centralised incineration facility are inplace with a scheduled completion in 1996,

Radioactive wasteThe disposal of radioactive waste is governed by theradiation board, a statutory body established underthe Radiation Ordinance (Cap 303). Some low levdradioactive wastes are disposed of as ordinaryrefuse. Other radioactive wastes are sealed andstored in underground chambers in Wanchai.Proposals exist to build a new radioactive storagefacility on an island near Lantau,

Waste generation, re-use andrecycling

Finally, it should be noted that there is no specificlegislation to minimise the generation of waste or there-use/recyding of existing wastes.

Enforcement

Contravention of the provisions of the waste dsposallegislation is an offence and can lead toimprisonment and fines. Historically fines have beenlow. However, recent changes to legislation havesought to increase fines and to impose liability on abroader range of persons. Thus, Section 39 of theWaste Disposal Ordinance seeks to extend liability

Call for Sonsorshi & Advertisin

The HKELA Newsletter is pttblished quarterly and is distributed free toall members of HKELA and relevant institutes

1HE H K E L A N E W S L E T T E RA C C E P T S A D V E R T I S E M E N T S

For information on sponsorship and advertising in theHKELA Newsletter please contact Edwin Chart

Tel; 766 5800 1168888 x!971 Fax 764 5131

HKELA Newsletter Volume 1.2under Ihe Ordinance to any director, manager,secretary or other person concerned in themanagement of the body corporate (provided that itcould be said that the offence was committed 'withtheir consent or connivance or that the offence wasattributable to neglect or omission on their part.)

Rona Westgate

Reference

1. Environmental Protection Department., Environment Hong Kong1991, Hong Kong Government, Hong Kong, 1991.

[ENVRONMEKTAI LAW DIGEST MAY 'TO AUGUST 1994

Legislation

A -fV The Air PoHuti011 Confro/ (Amendment)£*%* Ordinance 1994 (Commencement) Notice1994 set the day that the Amendment Ordinance (asdetailed in last edition's digest) came into force as25th June. Likewise, the Air Pollution Control (MotorVehicle Fuel) Regulation (Commencement) Noticebrought those regulations into effect partly on 25thJune, with the rest (Part III, relating to the supply orsale of motor vehicle diesel) coming in on 1st April1995,

A Technical Memorandum for Specifying Air QualityObjectives for Hong Kong was issued undersubsection 7(1 A) of APCO, listing the objectives (byway of measurement of a number of specificemissions) which the Director of EnvironmentalProtection is statutorily instructed to seek to achieveand maintain, as soon as is reasonably practicable.

Noise The Noise Control (Amendment)Ordinance 1994 (Commencement)

Notice 1994 set 1st July as the date on which mostof the Amendment Ordinance (see last edition) wasto come into operation. The amendments relating toincreases in penalties for contravention of theOrdinance's provisions came into effect on 1stAugust ((Commencement)(No2)Notice 1994).Consequently, the Noise Control(General)(Amendment)(No2) Regulation 1994increased the amounts of fines where they arereferred to in the prescribed Noise AbatementNotices. The remaining amendment, which dealt withnoise from construction sites within a designatedarea, is still not in force.

Waste The Waste Disposal (LivestockWaste)(Amendment) Regulation

1994 and the Public Health (Animals andBirds)(Ucensing of Livestock Keeping) Regulationintroduce new regulations consequent to the WasteDisposal (Amendment) Ordinance 1994 mentionedin the last issue. The new provisions relate to thedefinitions and licensing of livestock waste, and theminimum standards which such waste must attain.

The Waste Disposal Ordinance (Amendment ofSchedules) Notice 1994 redefines the areas of Iheterritory which constitute livestock waste prohibition,control and restriction areas. The above three piecesof legislation all came into operation on 1st July (asdid the Waste Disposal (Amendment) Ordinance1994, excluding the new section 16A which dealswith unlawful depositing of waste).

The Water po!lut!on Control(General)(Amendment) Regulation

1994 provides for the assessment of compensationwhich is payable under the main Ordinance uponcancellation or variation of discharge licences.Contravention of any specific provisions containedwithin a licence was also made an offence.

The Water Pollution Control (Sewerage) Regulationprovides regulations for the construction,maintenance and control of communal sewers andwastewater treatment facilities. The Director ofEnvironmental Protection is given statutory powers,including resumption of land, to undertake workswhere persons have failed to comply with thoseregulations, with an allowance for compensation inappropriate cases.

The cost of a certificate of insurance issued in HongKong under the International Convention on CivilLiability for Oil Pollution Damage fCLC") is set torise to HK$485 as a result of the Merchant Shipping(Liability and Compensation for Oil Pollution)(Compulsory Insurance)(Amendment) Regulation1994.

The Sewage Services Bill was placed before theLegislative Council, seeWng to introduce a system ofpayments for sewage services by all persons, withallowance for the charge of a special payment forthose persons who produce effluent as a result of acommercial enterprise. For most persons thepayment will take effect as an increase in their waterbill.

CourtsA new record fine of HK$200,OQO was given to acompany for short-dumping at sea, contrary to theterms of its Icence. It was the compan/s eighthoffence for either short-clumping or dumping withouta licence, its previous fries never having exceededthe Disftict Court maximum of HK$5,OC30. TheEnvironmental Protection Department brou rt thisprosecution in the High Court since it appeared fiatthe barge operators accepted the fines as pat of1heir normal business expenses.

The Hang Heung Cake Shop in Yuen Long was finedHK$25,OOQ for its second offence of cSschargingwater whjqh was 130 times more polluted thanallowed. The shop blamed it on a seasonal increasedueto high production of mooncakesfor Ihe festival

Fairwood, the fast food chain, was fined HK$5Q,OOQin its third conviction this yea- (tofaJ=HK$120,OOQ). tt

HKELA Newsletterhad been discharging water containing 14 times thepermitted levels of grease and oil into Tolo Harbour.

MiscellaneousThe government will be looking into household wastecharges at the start of 1995: charges for constructionand other waste will be started at the end of thisyear.

Despite attempts at rubbish collection by the MarineDepartment, and the staging of races in the morningto avoid the foul smell created by photochemicalreactions, dirty water containing chemicals fromnearby textile and dyeing works resulted in fewerteams competing in this year's Tsuen Wan DragonBoat Festival.

A medical waste disposal facility should startoperation in 1997. The plant will be privatelyoperated, and is to include a service for collection ofthe waste. Legislation, similar to that relating tochemical waste, will be introduced to control thecollection, transport and disposal of the waste.

ChinaChina is to reduce the pollution created by the pastdecade's rapid economic growth now, rather thanwait and be forced to spend even more on clean-upcosts the State Environmental Protection Bureau hasannounced. This will involve stricter controls(including imprisonment), better co-ordinationbetween government departments and governmentsupervised tradable pollution quotas. Up to Yuan 200billion has been earmarked for this over the next 6years,

David McKellar

[SUB-COMMITTEE REPORTS)PRC

T he development of environmental law in thePeople's Republic of China (PRC) is an areaof law that corporate and public interests in

the Hong Kong community cannot afford to ignore.The PRC Environmental Law Sub-Committeeintends to show how the law relating to pollutioncontrol and conservation in the PRC continues togrow. One of the ways that we hope to do this isthrough a regular column in the HKELA newsletter.In this our first column we'd just like to set out someof the topics that we think you're likely to find ofinterest

The system of environmental law is quite complex. Itwould be useful to learn more about the basicframework. This will include discussion of theinstitutional organisation of the environmentalprotection agencies at local, regional and nationallevels. In recent years the Chinese Government haspromulgated a number of laws, rules and regulations

Volume 1.2that impact upon the environment Among thosetopics that have been identified as of particularinterest are: water supply and contamination issues,waste regulation and standards, prevention oftransboundary pollution, alternative methods ofpollution control, conservation of natural resources,air emission issues and noise control. PartioJarconsideration will also be given to the relevance andeffect of environmental impact assessments uponforeign investment projects. Also the sub-committeehopes to consider the constitutional questions arisingfrom the transition of Hong Kong's currentenvironmental protection system into the PRC's.

Furthermore it has been suggested that, withoutappropriate funding from international andnational sources, the challenge of rationaladministration and enforcement of environmentallaws becomes more difficult, especially in thePRC. Although the PRC may have its ownenvironmental legislation, standards andpriorities, these may not always match those ofthe international funding agencies. This is notstrictly environmental law, but the policies of themajor funding agencies could have a significantimpact on the future of environmentalimprovement in the PRC. The sub-committeeintends to research the policies and practices ofthese agencies, along v\tth the size and type offunding that they expect to provide over thecoming years.

Bryan Bachner

Waste

T he Waste Sub-committee held rts secondmeeting on 17th August Urtfortunatefy ourmeeting scheduled to take place on 15

September to discuss the sewage services bill wascanceled. This meeting has been re-scheduled totake place on Wednesday, 12 October 1994. Atfuture meetings we hope to discuss the localisedclumping at sea legislation. We are also hoping toarrange a short presentation on proposedamendments to the Waste Disposal Ordnance. Thisis likely to be a joint event with the newly formedHong Kong Waste Management Association. Weare also trying to arrange a visit to one of the landfillprojects. If any HKELA member wants moreinformation about the sub-committee or would like tocontribute to our discussions please contact RonaWestgate (Tel: 810 4770) (Fax: 868 4051).

Rona Westgate

Water and Maritime

T he Water and Maritime Sub-committee hashad two meetings since the last issue of thenewsletter: On ttia evening of 3 August

David McKellar of Barlow Lyde & Gilbert gave apresentation to the stto-comnittee entitled

HKELA Newsletter Volume 1.2International Maritime Pollution Conventions in HongKong. It is proposed that a summary of thepresentation will appear in the next newsletter. At the7 September meeting a discussion took place on theSewage Services Bill. Further discussion of this bill,and on the draft Dumping at Sea Bill, will take placein conjunction with the waste sub-committee.Upcoming talks will cover the role of the common lawin environmental protection and toxicity in marineorganisms. (It is proposed that publication of acollection of the talks presented to the sub-committee will take place by 1995). Details of thesub-committee are available from Terri Mottershead(859 2972) or David McKellar (526 4202).

Events

T he Events Sub-committee has held two meetings:on 25 May and 18 August It is proposing toorganize professional talks, lectures and

seminars as well as occasional social events. Threeevents are currently planned. The inaugural AnnualDinner of be Association will take place at the HotelVictoria on Friday 18 November Additional details maybe found in this Newsletter.

From 13 to 19 October, the Centre of UrbanPlanning and Environmental Management (CUPEM)of the University of Hong Kong will be hosting a visitby Michelle Jordan who has recently been appointedby President Clinton as Deputy RegionalAdministrator of Region 5 of the U.S. EPA.

On Monday 14 November, the Assodation andCUPEM are planning to co-sponsor a lecture byProfessor Patrick McAuslan of Birkbeck College.London. Patrick was previously Professor of PublicLaw at LSE. He is an international expert on land,planning and environmental law and has publishednumerous books and papers in these fields (and abiography of Lord Denning!) He is. extensivelyinvolved in international consultancy work advisinggovernments on the development of legalframeworks for land management and pollutioncontrol. The titie of his lecture and the venue will beannounced at a later date.

The Association has also been invited to participatein an international conference entitled "Land UsePlanning: Meeting Tomorrow's Challenges", to beorganized by the Department of Law at the CityPolytechnic of Hong Kong between 1 to 3 December1994. The Association has been asked to considersponsoring one or two panel discussions on topics of

our choice. If any members are interested in pursuingthis would they kindly contact myself or RonaWestgate by 19 September at the latest please.

We are hoping to move towards a regular cycle ofboth professional and social events in the monthsahead. Unfortunately, the summer downturn inactivity has limited our progress but we intend tomove ahead with plans for regular lectures andoccasional conferences and seminars. We wouldwelcome members' suggestions regarding possibletopics and would, of course, also welcome offersfrom those willing to give talks and participate inevents. If any other members are interested inhelping with our work, such offers would also be verywelcome.

Peter Hills

Sub-committees of HKELA

Seminars, conferences, field trips, fundraising and social events (contact ProfessorPeter Hills, Tel 859 2720, Fax 559 0468)

HKELA Newsletter (contact Ian Dubin, Tel 8351129, Fax 591 0558)

Water/Maritime (contact Terri Mottershead, Tel859 2972, Fax 559 3543)

Noise and Air (contact Martin David, Tel 8104770, Fax 537 1907)

Waste (contact Rona Westgate, Tel 810 4770,Fax 537 1907)

PRO Environmental Law (contact BryanBachner, Tel 788 7677, Fax 788 7530)

External Relations (contact Fred Kan, Tel 8680870, Fax 523 6707)

Students (contact Jane Dykes, Tel 9221 8303,Fax 845 9892)

Editorial sub-committee

Ian Dubin

Marc Smith-Evans

MaryAuYeung

Edwin Chan

David McKellar

Stephen Birkett

James Pearson

Fax5910S58

5462693

3694577

8451599

8109994

5252B86

7235660

Phone8351129

8351299

3699236

8482366

5264202

526Q60B

7229734

Published by the Hong Kong Bivironmental Law Association, 11/F Peregrine Tower, lippo Centra, Qaemsway, Hong Kong. Chairperson RooaWestgate, Tel: 810 4770 Fax: 868 4051.

We welcome reproduction of all or part of the contents of this newsletter. We do not ask for wpxxhiction or oopyri^st fees, but ask that Hong KongEnvironmental Law Association HKELA is acknowledged as the source of the mfonnation, and fliat a copy of the material in <wMeh the iof brmation isused is sent to us.

The infconation given in this newsletter is givenin good faith, but without Hab^ Statemofejand opinions expressed in this newsletter do not necessarily reflect the views of the Association,

THIS NEWSLETTER IS PRINTED ON RECYCLED PAPER.

HONG KONG

ENVIRONMENTALLAW ASSOCIATION Newsletter

December 1994 Volume 1.3

POLMET'94

p OLMET '94 (Pollution in a MetropolitanEnvironment) Conference was held 13 -17 November in Beijing.

My interests at POLMET were mainly related tothe "strategic planning" aspects of the variouspresentations, together with what insights I couldobtain on the policy and legal/political frameworksof the various countries represented. Many ofthese issues were highlighted in the plenarysessions.

Mr. Xie Zenhua's plenary presentation onEnvironmental Problems and Policy in Chinahighlighted the enormous problems facing Chinaas a result of the regional emphasis on prioritizingeconomic development at the expense of (orrather, in disregard of) environmental pollutionmatters. He noted the need to change policy andlegislation as a starting point to dealing with theimmense problems cited.

It was interesting to note that the Strategicframework is basically in place: fundamentalGovernment policies for planning,management and development exist.Central Government policies of job,and individual, responsibility havebeen instituted and the necessarylegal framework for pollution controlhas largely been put in place,although more legislation remains tobe enacted to achieve a fullycomprehensive legal framework.Problems arise from lax enforcementof existing legislation and a lack ofenvironmental infrastructure.

To me it seemed that the sameproblem seen in so many otherjurisdictions is echoed in China -despite an adequate policyframework, the problem remains oneof implementation, even in a countrywith one of the strongest centralplanning structures in the world.Nonetheless, the policy structure is a

necessary first step to achieving integratedprogrammes of pollution control, especially in acountry the size of, and as complex as, China.

One fairly obvious problem that occurred to me inconsidenng the effectiveness of China's legalenforcement of pollution control is a probable Jackof public participation in enforcement This ted meto consider that democratic processes and civilrights have historically gone hand in hand withdevelopment of effective environmental protectionprogrammes - arguably the environmentalmovement in America had its origins in the post-war civil rights movement and the opposition tothe Vietnam war. Public participation and accessto legal processes in the West have greatlyaccelerated recognition of pollution problems andenforcement of environmental protectionrequirements. The initiative missing from Mr. Xie'slisting of PRC policies is one of promoting publicawareness and public participation.

This omission seemed to be evident in all of theChinese submissions that I attended. Most oftheir policy initiatives are top-down, and whilelaudable, neglected the need for bottom-upawareness and enterprise.The importance of an effective legislature as the

INSIDE2 Nam Sang Wai by Mary Au Yeung

3

4

Editorial by Marc Smith-Evans

Forthcoming Events

5 The ChemWaste Project by David Newby

8 International Maritime PollutionConventions uvHong Kong (Parti) byDavid McKeUar " ' ' »>> <**•< - '"^" -

1 9 Envirorimeotal Law Digest August toDecember by David McKeUar "

fO SutnCommittee Reports

HKELA Newsletterkey to implementation of policy was one of thekey points I got from Professor Ansgar Vogel'sspeech entitled, "Environmental Policy inGermany". He also noted the need for publicparticipation and the need for policy to be basedon broad public consensus. Of course, it seemsto me that this is a two edged sword in manydeveloping countries (and arguably so in HongKong), where the attitude of large parts of thepopulation can often be more focused onimmediate short term economic gains with thelong term environmental considerations badlyundervalued. Professor Vogel also highlighted theeffectiveness of Germany's programmes of usingenvironmental liability and economic measures tointernalize pollution costs.

Ian Dubin

I NAM SANG WAI

Town Planning Appeal No. 13/93IN THE MATTER of the TownPlanning Ordinance Cap. 131;

and

IN THE MATTER of An AppealUnder Section 17B by HendersonReal Estate Agency Limited

T his was an appeal by Henderson RealEstate Agency Limited against a refusalof planning permission for a proposed

development at Nam Sang Wai and Lut Chau.The Nam Sang Wai development will comprisean 18 hole golf course, 2,550 residential units anda commercial area. Some 85.8 ha. of wetlandswould be lost as a result of the development butan additional 13 ha. of woodland would becreated. In addition there will be one hectare ofscrape compared to none at the moment. TheNam Sang Wai development will occupy an areaof approximately 98.3 ha. consisting of 76.4 ha.currently owned by the appellant and 21.9 ha. ofgovernment land which the appellant hopes toexchange for the 21.9 ha. in Lut Chau owned bythe appellant.

The Appeal Board allowed the appeal (with onedissenting) with Planning Conditions imposed.This article discusses the legal precedents set bythe decision and its possible conflicts with theRAMSAR convention.

Volume 1.3

EditorialRisk Assessment

versus Toxic Tort LawBioassays attempt to distinguish between significantcancer effects resulting from exposure to chemicalsand from exposure to background levels, by usingextraordinarily high doses on living organisms. But inthe real world, it is next to impossible to make such adistinction because you cannot test chemicals onhumans, and because each human has a uniquegenetic makeup. So, what happens when there is alawsuit and the plaintiff claims a company's dischargecaused the plaintiffs cancer? How do you provecausation?

Similarly toxic tort law does not deal with scientificpublications, it deals with the consequences ofexposure to an individual. Risk assessments do noteliminate the risk - people still get cancer. In trying toprove whether a defendant's actions caused theplaintiffs disease, the possibility that the disease couldhave been caused by other factors cannot be ignored:for example, is the plaintiff a smoker, does he work inor near a mine? Having looked at all these factors andeliminated them, a physician who examines a plaintiffcan say that it is probable that the defendant'sdischarge caused the cancer.

If someone were to go to a physician and ask him whatexposure level could have caused cancer in a particularperson, the physician would say, "the level he wasexposed to". Once the physician has ruled out othercauses, the exact amount of exposure to that particularperson need not be known. For this reason regulatorylimits are mostly irrelevant in toxic tort cases.

There is a story of a Senator who visited Love Canal inthe late 1970s when It was front-page news. After abriefing in which he was presented with charts showingthe incidence of cancer among Love Canal residents,the senator exclaimed, *l dont know about statistics,but there's a problem here." The story illustrates thepoint that "Effective environmental and human healthprotection does not need exactitude".

Different people are susceptible to cancer at differentexposure levels. The toxic tort system tries to apportionthe level of risk evenly so that a disproportionateburden of risk does not fall on those who fall betweenzero and the regulatory limit on the dose-responsecurve. In that way the system is made more level-thedamage suffered is shared, and the costs of ft arespread to a greater degree. "Who wi pay for those whofall under the risk? Tow tort shifts the risk fronti theinjured to the risk creator'.

In that respect toxic tort law can enter Into, andbecome an integral part of a pure-market economicsystem in that it pushes companies not to produce aproduct if the cost of producing it, including themanagement of resulting toxic substances andlitigation, becomes too great

Marc Smith-Evans

HKELA NewsletterLegal Precedent

Statutory Plans, Notes andExplanatory StatementsIn the present case, the Development PermissionArea Plan (the UDPA Plan") provides that "for theR(C) zone residential use is permitted as of rightsubject to restrictions on development intensity asstated in the draft Nam Sang Wai DPA plan", andfor area zoned "unspecified use", residential andrecreation uses are not permitted as of right but"any development ... requires planningpermission from the Town Planning Board". Theaccompanying notes ("the Notes") furtherprovided that the planning intention is primarily toprotect and conserve the area's landscape,ecological value and its scenic qualities, and forany development within this zone, the developermust demonstrate that their proposals wouldeither have insignificant adverse impacts on theenvironment or appropriate measures would betaken by the applicant to minimize such impacts.

Subsequently the Board, in October 1992published a paper "Consideration of s.16Application for Development in areas around MaiPo Nature Reserve" ("the ExplanatoryStatement") and in November 1993 issued a setof guidelines and Conceptual Guidelines forDevelopment within Deep Bay Buffer Zone 2 ("theGuidelines"). The wording in the ExplanatoryStatement and the Guidelines confirmed thatconservation of natural resources continued to bethe planning intention.

The Appeal Board, however, noted that accordingto the Explanatory Statement development in thearea zoned "unspecified use" is not precluded ifthe applicant could "demonstrate that theproposed development would have insignificantimpact on environment, drainage and traffic in thearea including the MPNR". The Appeal Boardfurther noted that a development in accordancewith the Guidelines will involve the disappearanceof most of the existing fish ponds in Buffer Zone2, Therefore it held that the respondents mainobjection to the proposed development namelyviolating the alleged intention to preserve fishponds, cannot stand.

The Appeal Board found that the appellantsproposals to build an actively managed naturereserve at Lut Chau, incorporating wildlife habitatsin the golf course and carrying out otherenvironmental activities served to conserve thearea's special interest and complement the MaiPo Nature Reserve. They are dearly consistentwith the planning situation of the DPA plannamely that any development at Nan Sang Waimust not have any adverse impact on the Mai PoNature Reserve.

Volume 1.3The Appeal Board's findings indicate that its dutyis to see that plans prepared by the TownPlanning Board ("the Board") are faithfullyimplemented, whether or not it agrees with theapplicable plans. In so doing, the Appeal Boardwill consider the planning intention by looking atthe statutory plan, the notes and evensubsequent explanatory statements. This isnotwithstanding that the latter cannot override thePlan or the Notes.

The Applicable PlanThe planning application from which the presentappeal stemmed was made under the DPA plan.However, counsel for the respondent sought to

rely on an Outline Zoning Plan ("OZP") gazettedafter the conclusion of the first hearing of theBoard.

The Appeal Board concluded that the appealmust be decided on the basis of the DPA planand not the OZP. This is set out in s2(6A) of theTown Planning Ordinance (TPOn) which providesthat planning applications submitted during theeffective period of a DPA plan must beconsidered on the basis of that plan, despite thefact that it has subsequently been replaced by anOZP and is no longer effective.

The Appeal Board's approach inarriving at its decision

Although s17B of TPO provides that the AppealBoard may confirm, reverse or vary the decisionwhich is appealed against, ft does not state thecircumstances under which the Appeal Board willintervene.

The present case has confirmed that the AppealBoard has now deviated from the originalapproach in its decision on an appeal First, it willnow consider afresh whether the Board has erredin rejecting an application, not whether the Boardon review was wrong to have decided as it did atthat time.

In the present case, the Appeal Board consideredfresh evidence arising after the s17 Review, suchas the OZP, the guidelines issued by the Boardand the views of the WWFN Hong Kong given tothe Board. Although the Appeal Board decidedthe appeal in accordance with the DPA Plan, itmentioned in passing that even if the abovedocuments were relied on, it could not gatherfrom them an intention that alt the fish ponds assuch should be preserved.

Secondly, the original approach required theappellant to show that the Board on review iswrong. The present case confirmed the trend thatdevelopment is favoured unless the Board

HKELA Newsletter Volume 1.3

Pollution Control in the People's Republicof China: Regulations and Reality

This is a new publication that is a practicaltool for those wishing to broaden theirunderstanding of the pollution controlregulatory system in China. It covers avariety of topics including;

* PRO Environmental Protection Policy;

+ Description and analysis of regulatory andpolicy tools;

+ Environmental regulations for Foreign andJoint Venture industries;

+ Case studies.

The appendices contain the most importantenvironmental laws, regulations andstandards. Pollution Control in the PRC:Regulations and Reality is available fromCindy Chung at Environmental ResourcesUanagement (H K) Ltd. (Fax 2723 5660) at acost of US$100.

provides "a satisfactory basis for refusal ofplanning permission". Thus the onus of proof atappeal has apparently been shifted to the Board.

The RAMSAR Convention

The Respondent argued that apart frompreservation of the fish ponds, the planningintention is also to preserve the Deep Bay BufferZone area (within which the present developmentfalls) so as to sustain the MPNR and its adjacentinter - tidal mudflats.

The Appeal Board held that neither in the Notesnor in the Explanatory Statement was there anyreference to the conservation of water bodies asbeing the planning intention for Buffer Zone 2.Moreover, the reference to the conservation of

water bodies as being the planning intention islimited only to a very small part of Buffer Zone 2.The Appeal Board found that the appellant'sproposal sought to comply with the guidelines.

In finding so the Appeal Board seems to havefailed to consider the wise use concept of fishponds near MPNR. Under article 3.1 of RAMSARwhich requires that all "Contracting Parties shallformulate and implement their planning so as topromote as far as possible, the wise use ofwetlands in their territory". Thus, it is questionablewhether the Appeal Board's decision conflictswith the Ramsar Convention on Wetlands ofInternational Importance especially as waterfowlhabitats, under which the wetlands of Inner DeepBay are eligible for protection due to its

international conservation importance assubmitted by the Respondent.

AS. It has been drawn to the author's attentionthat the case is at present pending judicial reviewby the Town Planning Board of the AppealBoard's decision.

MaryAu Yeung

I FORTHCOMING EVENTS

Annual Dinner

D ue to a number of factors, the HKELAAnnual Dinner had to be postponed toFriday 10 February, 1995. It will be in

the Ball room of Hotel Victoria (next to the ShunTak Centre, HK -Macau ferry pier) and the costwill again be HK$ 350 per person with a cash bar.

We would like to thank all those who signed upfor the dinner on the original date. Your supportwas greatly appreciated and we apologize for theinconvenience caused by the postponement Wehope that with more notice this time around, youwill be able to support us again and make theannual dinner a success.

You will receive full details nearer the date, butmark it down for now and begin canvassingothers who may be interested in attending.Bookings can be confirmed by completing theflyerwhich was sent to all members recently or, byleaving a message on Ms Jeannie Ng'sanswerphone 2546 5430.

British Council InternationalSeminar

There will be a seminar titled implementationand enforcement of international tew in thefield of sustainable development It will be heldin London 25 - 30 June, 1995, The seminar willaddress the issues raised in Agenda 21 of theJune 1992 United Nations Conference held inBrazil.

Anyone interested should contact Sarah Newby,Educational Exchanges Officer at The BritishCouncil, Tel 2879 5138 Fax 2519 9689.

Productivity Council TrainingCourse

An Environmental Auditors and ManagementTraining Course is being organized by the HongKong Productivity Council The course introduces

HKELA Newsletterauditing and environmental management systemsand provides structured training in audittechniques and in depth analysis ofenvironmental management system schemes.The course, held on 14 - 18 March, lasts for fivedays although there is the option to attend forthree days only. The Association will be providinga speaker for the course. For further informationcontact Ms. April Li (Tel 2788 5662) or Misspeaches Lau (Tel 2788 5643 Fax 2788 5608).

[THE CHEMWASTE PROJECT!Background

Chemical Waste Situation in 1987

H ong Kong is a modern, highlyindustrialized city. A wide range ofindustries, many of them generating

highly polluting waste by-products, havedeveloped within the very compact territory that isHong Kong.

The development of certain infrastructureelements had not, however, kept pace withindustrial development. The lack of certainelements, such as effective, modern, sewagecollection and disposal systems and chemicalwaste treatment systems, had led to considerablepollution of the environment in and around theterritory. Whilst it is possible to legislate againstpollution, in certain circumstances legislation isinappropriate without the correct infrastructure toenable industry to comply.

By 1987, the problems associated with hazardouschemical waste generation in the territory werefairly well understood. A knowledge of the typesof waste generated and their approximatequantities had been acquired. It was consideredthat a centralized chemical waste managementfacility was required to help solve these problems.Attempts to interest potential developers of suchfacilities had, until late 1987, met with limitedsuccess.

In the meantime, many of the liquid chemicalwastes being generated continued to bedischarged into sewers and water courses notonly causing pollution, but also making it verydifficult, if not impracticable, to introduce effectivesewage treatment systems. Much of the solidchemical waste ended up in landfill.

It is possible to recover or recycle certainchemical wastes. Some wastes at that time,waste oils and certain etchants in particular, wereindeed being recovered or recycled but this waslargely unregulated.

Volume 1.3Legislation in 1987In 1987 legislation existed covering certainaspects of Waste Management but legislationrelating to the regulation and control of hazardouschemical wastes had yet to be developed. Therequirements of such legislation were fairly wellunderstood and it was recognized that some formof "Cradle to Grave" control was necessary.

Main Problems FacedIt was understood that the two main problemswere the lack of specialized facilities and the lackof legislation for regulation and control of themanagement of these wastes. Further, it wasknown that it was not practicable to introducelegislation without introduction of appropriatefacilities for the management of those wastes.

A major contributing factor to the apparent lack ofcommitment from the potential providers of thesefacilities was inevitably their concern aboutfinancial* viability of such a venture. Theseconcerns inevitably focused on the lack oflegislation, the difficulties of enforcement and theability, or willingness, of Hong Kong's chemicalwaste generators to pay high waste disposalcosts. Full disposal costs at such facilities can, forcertain types of waste, exceed the cost ofpurchasing the original chemical reagents.

Adopted Strategy

Strategy DevelopmentIn order to achieve a rapid solution to the problemthe Government commissioned ERM Hong Kongearly in 1987 to undertake a feasibility study toproduce a conceptual design for a centralizedfacility and to consider the optimum means ofsecuring it's development. As a result, theGovernment adopted a strategy which comprisedthree main features.

The first feature of the strategy was to tet adesign, construct and 15 year operationconcession contract for the development of acomplete collection, transportation and treatmentsystem for Hong Kong's land and marinegenerated chemical wastes.

The second feature of the strategy was todevelop, in parallel, legislation for regulation andcontrol of these wastes for phased introductionwhen the facilities were nearing completion.

Whilst accepting that the "Polluter Pays Principal"was tie correct toog term aim, the final, and veiysignificant, feature of the strategy was to isolatethe issue of cost recovery from the other keyissues. This last feature was considered a vitalelement in persuading potential consortia to bidfor development of the facilities, it was therefore

Page 6 HKELA Newsletter Volume 1.3decided that the facilities would be provided byGovernment who would also pay the operationcosts and that charging, either direct or indirectwould be introduced at a later date.

Providing what is essentially a free collection,transportation and disposal service ensured thatthe plant achieved a high utilization rapidly oncommissioning, without worrying aboutenforcement issues. Currently the facility (atTsing Yi - CWTC) is operating at an average ofabout 90% of design capacity.

that point on it aims to ensure that the wastes arehandled only by appropriate qualified parties

Definition of "Chemical Waste"Defining "Chemical Waste" is not easy becauseany realistic definition must include such conceptsas "polluting", or "danger to health". Application ofany definition incorporating such terms is difficultfor people whose job is environmental regulationand control, or health and safety, let alone the av-erage waste generator.

Producer EPD Carrier Receiver

Generator must fill ininformation about hiscompany and the waste onPart A Generator mustnotify EPD of hts intendedarrangements by sending acopy of the trip ticket

EPD may veto wastemovementOtherwisegiven

if appropriate,authorisation is

At time of collection, earner! At the Reception Point thechecks the generator and * responsible person checkswaste information on all 3 j the information on the tickets

pointtickets and adds their owndetails to them.Carrier takes copy 1 and

and acids receptioninformation to them.He keeps the original and

original with the waste and returns copyhands both to the Reception originator.Point manager.

1 to the

Figure 1. Trip Ticket Flow

Part of the strategy is that the users of the facility,and the types and quantities of chemical wastethat they generate, become "visible" to EPD, Thiswill be essential key information assisting laterenforcement, particularly following theintroduction of direct charging. It was, of course,inevitable that many generators would realize thisand try to avoid using the system to avoid beingcaught in the information net.

Regulation & Control PhilosophyThe concept of "Cradle to Grave" control hadbeen developed and implemented in severalother countries and demonstrated to be thepreferred philosophy. It recognizes that controlmust be exercised firstly at the point at whichhazardous chemical wastes are generated. From

To combat this difficulty, waste generators musthave a simple way of determining whether thewastes that they generate would fall within thedefinition. Accordingly, generators who suspectthat some of their wastes may be "chemicalwaste" may request that the Government'scontractor sample and analyze the waste todetermine whether ft constitutes such a waste.They then advise EPD of the outcome, It is worthnoting that EPD haw the right to veto anyconclusion drawn by the contractor.

Control of Waste GeneratorsIn order to control chemical waste disposal, thewastes generated m Hong Kong must be "Visible"to the regulators. Generators of "ChemicalWaste*, therefore, must register with EPD. Theseregistered generators can then be inspected toensure that their wastes are being disposed ofcorrectly.

HKELA NewsletterLicensing of CarriersThe second major element in regulation andcontrol concerns the transporters ("carriers") ofchemical waste. All carriers must obtain a licensefrom EPD. Further, a chemical waste generatormay only allow his waste to be collected by alicensed carrier, and a carrier may only take thechemical waste to a licensed "Reception Point".At this time EPD have issued 38 licenses tocarriers of chemical waste in Hong Kong.

Chemical Waste ReceptionThe third major element in cradle to grave controlis to license facilities which receive chemicalwastes, whether that is for transfer elsewhere, forrecycling or recovery or for disposal. The disposallicense may specify how wastes are to be stored,processed and finally disposed of. There are, ofcourse, other means in place for the regulationand control of chemical waste receivers: they arebound by discharge and emission pollutioncontrol limits, and possibly, as is the case with thefacilities on Tsing Yi, by their contract with EPD.

Trip Ticket SystemThe main tool used to control the movement ofchemical waste from the generator to the placewhere it is to be treated and disposed of is the"Trip Ticket". Figure 1 illustrates the trip ticketflow. The important features are that each partyretains a copy of the trip ticket for each chemicalwaste movement and that a copy of the trip tickettravels with the waste. One possibly uniquefeature of the Hong Kong Chemwaste system isthat a minicomputer wide area network was pro-vided under the Chemwaste contract. Thisfeatures a minicomputer at the contractor's siteon Tsing Yi which is linked to a minicomputer,also provided under the contract, at theemployer's (EPD's) offices. This allows a highlevel of information exchange concerning the triptickets themselves.

Enforcement Issues

Chemical Waste GeneratorsA key enforcement issue is the detection ofcompanies failing to register. Failure to register isa relatively simple offence to prove. More difficultto prove is that a waste generator is failing todispose of his waste correctly. The generator mayfor example keep waste containers to store wastebut actually continue to discharge the majority todrain. On inspection, the generator will of coursepoint out that he is registered, and has containerswhich may even be part full. Enforcement in thesecircumstances may inter alia, require complexsampling of effluents from the building andexamination of chemicals purchasing records.

Volume 1.3Often it is difficult to prove an offence even whenthere are strong suspicions. Enforcement at thewaste generator end of the cradle to gravesystem is difficult and requires specialist skills andexperience.

Chemical Waste CarriersEnforcement here is somewhat simpler withrespect to suspected illegitimate carriers. Threeissues must be addressed, firstly: is the materialbeing carried a "Waste", secondly, if so does "rtconstitute a "Chemical Waste" and, finally, is thecarrier licensed. Detection of such an offence bya carrier automatically leads to detection of anoffence perpetrated by the generator - that ofpassing his waste to an unlicensed carrier.Depending upon the location where the carrierwas stopped and investigated there is also thepotential offence of attempting to deposit thewaste at an unlicensed reception point. Inaddition there may be offences relating to thefailure to comply with the trip ticket system. It can,therefore, be very worthwhile directingenforcement efforts at illegitimate carriers.

Chemical Waste Reception PointsLicensed chemical waste reception points aregenerally fairly easy to regulate and control.Problems arise wfth the detection of the use ofillegitimate offloading and disposal points.Detection of these is often associated withfocusing the detection effort on illegitimatecarriers.

Current SituationThe Government facilities, operated bycontractors, are still being operated as a "free*service to chemical waste generators. The plantitself has functioned very well both from athroughput and from an environmental viewpoint

Even though the service is "free*, it is suspectedthat there is a potential problem of avoidance witha number of generators not utilizing, or under-utilizing the system and consequently disposing ofchemical wastes illegally. The Government isapparently committed to the "Pointer PaysPrinciple" and intends to introduce directcharging, featuring at teast partial cost recovery,for the disposal of chemical wastes in the nearfuture. This is inevitably going to have an impacton the extent to which generators fry to avoidusing the Chemwaste system. As a result of thisenforcement is Ikely to become a key issue.

Davitf Mewby

David Newby is a freelance consultant who isbased in Britain.

HKELA Newsletter

INTERNATIONAL MARITIMEPOLLUTION CONVENTIONS

IN HONG KONG (Parti)

Marine Environment Law:International Law in a Common LawSystem

A ll facets of public international lawinvolve difficult and sensitive questionsof sovereignty and jurisdiction, and of

state responsibility and liability. Marineenvironment law is merely a specialized branch ofinternational law. It takes as its sources mainlytreaties, customs and general principles of lawalongside judicial decisions and the writings ofeminent lawyers. This article will only cover theapplication of international maritime pollutionconventions in Hong Kong.

One thing to remember about treaties ininternational law of any kind, be they in the areaof human rights or environment or commerce, isthat in our legal system (a common law system),for the obligations of any particular treaty to havethe force of law and be treated as such in thecourts of Hong Kong, the relevant conventionsmust be incorporated into domestic law. Thus(departing from the subject of this paper for amoment) although the United Kingdom hadratified the International Covenant on Civil andPolitical Rights and had agreed that it shouldapply to Hong Kong, it did not apply and its rightsand remedies could not form direct actions in thecourts of Hong Kong until the convention wasactually adopted by enactment of the Bill ofRights and amendment to the Letters Patent.

Thus treaties, conventions and other internationalobligations are not a direct source of law - theymay bind the government in international law butwill normally be given effect within this territory bythe passing of legislation.

However, it should be noted that a court would,where it is for example faced by ambiguity in theinterpretation of a piece of legislation, haveregard to international treaties presuming that thelegislature intended to comply with its moralobligations in the international sphere.

History of International MaritimePollution Conventions

The number of states taking part in theinternational law making process has beensteadily increasing - there are now more than 180- each with diverse and competing legal, political,religious, cultural, geographical and economic

Volume 1.3interests. Alongside each state seeking to ensureprotection of their "development" interests in theocean (e.g. navigation, fishing, dumping andextraction of mineral resources) there has alsobeen increasing recognition of the need to protectthe marine environment

Treaties, or international conventions, for thepreservation of the marine environment frompollution fall into two major categories -conventions dealing with particular sources ofpollution and conventions endeavoring to regulateall pollution activities affecting the marineenvironment. Either of these can be global orregional specific. Prior to the Torrey Canyondisaster (1967) there was little awareness of theproblems of pollution of the seas. In 1969 therewere only two treaties in existence, OILPOLwhich did not prohibit all discharges from ships,and the Nuclear Ships Liability Convention. Itmight be fair to say that these gave too muchregard to the interests of states exercising thefreedoms of the seas and not enough toprotection of the environment. The TorreyCanyon incident resulted in an IMO sponsoredmeeting at Brussels in 1969 whichunderstandably focused on the problems of largeamounts of oil pollution from tankers, since thatwas seen as the most immediate problem to beresolved. The conference resulted in twoconventions - the CLC and InterventionConventions. These were seen as private andpublic law responses respectively, the formerdealing with private liability and the latter dealingwith rights between states. Subsequentconferences (held under the auspices of variousgroups, especially IMO and UNEP) have enlargedthe number and scope of internatiotiaf treatiesboth by creating new conventions and by addingnew protocols to existing treaties.

International Maritime PollutionConventions Applicable in Hong Kong

As an overseas territory of the UK, Hong Kongdoes not become a party to any conventionsdirectly, but the UK may declare a conventionwhich it has ratified to be effective also in respectof Hong Kong.

By thfe method Hong Kong has effectivelybecome a party to 5 international maritimepollution conventions and some protocols tothose conventions, as follows:

CLC - International Convention on CM! Liabilityfor OH Pollution Damage

Establishment of an International Fund forCompensation far Oil Poitttion Damage

HKELA NewsletterMARPOL - International Convention for thePrevention of Pollution from Ships, includingAnnexes I and II.

INTERVENTION - International ConventionRelating to Intervention on the High Seas inCases of Oil Pollution Casualties

LDC - Convention on the Prevention of MarinePollution by Dumping of Wastes and Other Matter

These international obligations have beenlegislated for the jurisdiction of Hong Kong bythree main pieces of legislation, with attendantrules and regulations:

Merchant Shipping (Liability andCompensation for Oil Pollution) Ordinance(Cap 414)

Merchant Shipping (Prevention and Control ofPollution) Ordinance (Cap 413)

Dumping at Sea Act 1974 (Overseas Territory)Order 1975

Prior to the enactment of the two ordinances

Volume 1.3listed , the conventions to which they relate werealso the subject of overseas territory orders,similar to that of the Dumping at Sea Act.

David McKellar

Part 2 will appear in the next issue.

ENVIRONMENTAL LAWDIGEST AUGUST TO

DECEMBER 1994

Legislation

The Air Pollution Control(Amendment) Ordinance 1993 {13of 1993) (Commencement) Notice

1994 [LN 480/94] brought into operation, on 26thAugust 1994, part of s33 of the 1993 amendingstatute which expanded the range of someexisting specified processes and added 8 newindustries.

That's the nature of a mature relationshipdear Just because we haven't heard fromAl Gore for a -while doesn 't mean that hedoesn'/ care any more.

Courtesy of the New Yorker

Consequently, the Air PollutionControl (Specified Processes)(Removal of Exemption) Order1994 [LN477/94], made unders20AA of APCO, removes theexemption for the owners ofpremises (including some of thenew ones) wherein certainspecified processes occur (i.e.various metal, acrylate, cement,ceramic and glass works), fromcomplying with the licensingrequirements under s13 APCO.This takes effect from 16th August1995. In conjunction with thesimilar 1993 order, the s20exemption no longer applies to 13of the 31 specified processes.

The following specified processeshave been added to the list ofthose required to furnishinformation in specified form toEPD under s19 by the AirPollution Control (SpecifiedProcesses)(Specification ofRequired Particulars andInformation) Order 1994[LN478/94]: organic chemicalworks; zinc galvanizing works;rendering works; iwvfenrousmetallurgical works; and glassworks. This brings the total numberof specified processes required to

HKELA Newsletterfurnish information under s19 to 21 out of the 31.

The Ozone Layer Protection Ordinance(Amendment of Schedule) Order 1994[LN657/94] introduced changes to the schedulecontained in OLPO, extending the list ofsubstances which will be brought under importcontrol restrictions. The new substances aremethyl bromide (used in the pest controlindustry), hydrobromofluorocarbons (HBFC-ofwhich there is no recorded use in Hong Kong),and hydrochlorofluorocarbons (HCFC-which aresimilar to CFC's, only slower acting on theozone). The controls will be phased in on 1stJanuary 1995, 14th June 1995 and 1st January1996 respectively. The amendment gives effect tothe Copenhagen Amendments to the MontrealProtocol, to which Hong Kong is a signatory.

Waste Section 14 of the WasteDisposal (Amendment)Ordinance 1994, which added

a new s16A making it unlawful to deposit wastewithout authority in a public place, on Crown land,or on any other land without the owner's consent,came into operation on 1st December 1994 byvirtue of the Waste Disposal (Amendment)Ordinance 1994 (28 of 1994) (Commencement)(No.2) Notice 1994 [LN637/94],

Part of Victoria Harbour> the

only remaining body of waternot yet under the WPCO, was

declared a water control zone by the WaterPollution Control (Victoria Harbour (PhaseOne) Water Control Zone) Order [LN519/94].

Consequently, a Statement of Water QualityObjectives (Victoria Harbour (Phase One)Water Control Zone) [LN521/94] has beenissued. The days on which the WPCO controlstake effect in the new area are given in the WaterPollution Control (Victoria Harbour (PhaseOne) Water Control Zone)(Appointed Days)Order [LN520/94] as 1st November 1994 for thedate which fixes existing discharges (s7(2) ofWPCO), after which any new discharges will beprohibited and require a licence; and 1st July1995 as the date after which existing dischargeswill also require a licence {under s7(3) of WPCO).

The Dumping at Sea Bill was gazetted duringthe period. Its intention is to localize the existingcontrols on dumping of wastes into the marineenvironment (presently the Dumping at Sea Act1974 (Overseas Territories) Order 1975). TheAssociation has made a submission toGovernment on this bill.

Volume 1.3The Merchant Shipping (Prevention of OilPoilution)(Amendment) Regulation 1994 andthe Merchant Shipping (Safety)(DangerousGoods and Marine Pollutants) Regulation [LN641/94 and 642/94] amend the existingregulations and introduce new provisions underthe Merchant Shipping (Prevention and Control ofPollution) Ordinance. The former regulation giveseffect to amendments made to the optional Annex1 to the International Convention for theProtection of Pollution from Ships, 1973fMARPOL") to which Hong Kong is a party.Annex I deals with the prevention of pollution byoil. The latter incorporates the provisions ofAnnex HI of MARPOL which relates to theprevention of pollution by harmful substancescarried by sea in packaged forms, or in freightcontainers, portable tanks or road and rail tankwagons. The provisions contained in theInternational Maritime Dangerous Goods Codeshould now be adopted in the packaging ofdangerous goods and marine pollutants.

The Marine Parks Bill was introduced to providefor the designation of marine parks and marinereserves (including the renamed Country andMarine Parks Board), their control andmanagement.

y^^.7^ Proposed amendments under\Jlil&i the Animals and Plants

(Protection of EndangeredSpecies) (Amendment) Bill 1994 aim toincrease the existing penalties, for trade inendangered species of plants and animals, and tointroduce a new offence where commercial gainis involved, with fines up to HK$5 million and 2years imprisonment

The Town Planning Appeal Board gave itsdecision on an appeal by Henderson Real EstateAgency [TPA No. 13/93] against the decision notto grant it planning permission for a proposeddevelopment at Nam Sang Wai. The case isreported on page 2.

David McKellar

SUB-COMMITTEE REPORTS

PRC

International Environmental Law

O n 25 March the State Council issuedChina's response to the United Nations

Conference on the Environment andDevelopment heW in Brazil in 1992. TheDocument, entitled "Agenda 21 of China - The

HKELA Newsletter Volume 1.3White Paper of China on Population, Environmentand Development in the 21st Century", sets outChina's medium and long range strategic planson how to integrate environmental protection andeconomic development In the document Chinaasserts that sustainable development is a nationalpolicy and that in China sustainable developmentis divided into three parts: a sustainableeconomy, a sustainable society and sustainablenatural resources.

With regard to a sustainable economy, thedocument suggests that economic developmentis a national priority and that economic growthmust first eradicate poverty and meet the basicmaterial and cultural needs of the community.The document asserts that a rate of growth below10 percent until the end of the 20th century wouldbe acceptable. By a sustainable socialdevelopment, the report argues that that soundenvironmental and economic policy will take intoaccount matters such as population growthcontrol, the distribution of social wealth, and thereinforcement of public security. By sustainablenatural resources the report calls on thegovernment to improve the protection of China'sdeteriorating environment

The Sub-Committee has tried to inquire whetherthis White Paper has yet been published and isavailable to the public. To the best of ourknowledge the White Paper has yet to be madeavailable to the public. This report has beenpieced together from news articles.

It should also be noted that on 13 June 1994,China enacted the State Plan for BiodiversityConservation, the response to China'sresponsibilities under the Convention onBiological Diversity. The purpose of thedocument is to provide an outline how the social

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and economic development plans of the countrywill incorporate the goals of the Convention.

Conferences Attended and PapersPresentedIn the recent conference on "Land Use Planning:Meeting Tomorrow's Challenges", two paperswere presented on the topic of Chineseenvironmental law. Professor Xiao Long-an, ofthe Environmental Law Institute of WuhanUniversity offered a paper entitled, "Study onSeveral Problems of the System of EnvironmentalLaw". The paper discusses the structure ofenvironmental law in the People's Republic ofChina, examining the basic law, regulations,bureaucracy and problems of enforcement Onemember of HKELA (and a member of the PRCSub-Committee!), Lin Feng, Lecturer in Law atthe City University of Hong Kong, gave a paperentitled "Sustainable Development in China'sPerspective". His paper describes the evolutionof sustainable development as a principle ofinternational environmental law and moves on todiscuss the relationship between a fundamentalprinciple of China's environmental law,harmonious development, and the concept ofsustainable development.

Bryan Bachner

Water and Maritime / Waste

S ince the last newsletter the waste and watersub-committees have heW three combinedevents. Firstly, in October, we discussed

the then proposed Sewage Services Bill, resultingin a submission to Government which wascirculated to association members in November.Then in November and our guest speaker was MsJill Cottrell a law lecturer with Hong Kong

University who addressed uson the background to thelegislation controllingdumping at sea followingwhich the sub-committeesdiscussed the recentlygazetted Dumping at Sea Bill,upon which we have recentlysubmitted our views toGovernment Lastly inDecember Brian Baillie alsofrom Bong Kong University,provided us with a mostinformative ta Ik on the subjectof judicial review.

In January we will bediscussing the Government*sproposal to set up marineparks ami reserves. Firstly,on 18 January, we have

HKELA Newsletterinvited members of conservation groups andGovernment to discuss the subject; then, in lightof those discussions, on 25 January the membersof the Association will meet in order to formulateour position on the present Marine Parks Bill.

Rona Westgate

Sub-committees of HKELA

Seminars, conferences, field trips, fundraising and social events (contact ProfessorPeter Hills, Tel 2859 2720, Fax 2559 0468)

HKELA Newsletter (contact Ian Dubin, Tel 28351129, Fax 2591 0558)

Water/Maritime (contact Terri Mottershead, Tel2859 2972, Fax 2559 3543)

Noise and Air (contact Martin David, Tel 28104770, Fax 2537 1907)

Waste (contact Rona Westgate, Tel 2810 4770,Fax 2537 1907)

Volume 1.3PRC (contact Bryan Bachner, Tel 2788 7677Fax 2788 7530)

External Relations (contact Fred Kan, Tel 28680870, Fax 2523 6707)

Students (contact Jane Dykes, Tel 2922 8303Fax 2845 9892)

Editorial sub-committeeFax Phone

Ian Dubin

Marc Smith-Evans

MaryAuYeung

Edwin Chan

David McKeliar

Stephen Birkett

James Pearson

2591 0558254626592369457728451559281059942525288627235660

283511292835 12592369 923628482366252642022526080827229734

Contributions are welcomed for thenext Issue, the closing date for theseis 17 March.

lOtli 1-

see page 4

Published by the Hong KongEnvironmental Law Association, 11/FPeregrine Tower, Lippo Centre,Queensway, Hong Kong. ChairpersonRona Westgate, Tel: 2810 4770 Fax:28684051.

We welcome reproduction of all or partof the contents of this newsletter. Wedo not ask for reproduction or copyrightfees, but ask that Hong KongEnvironmental Law AssociationHKELA is acknowledged as the sourceof the information, ami that a copy ofthe material in which the information isused is soit to us, The editorial Sub-Committee of the HKELA reserve therigfct to edit coirespoodeiice.

The information given in this newsletteris given in good faith, but withoutliability on the part of Hong KongEnvironmental Law Association,Statements and opinions expressed inthis newsletter do not necessarily reflectthe views of the Association,

THIS NEWSLETUR ISHUNTED ON RECYCLEDPAPER.

HONG KONG

ENVIRONMENTALLAW ASSOCIATION Newsletter

March 1995 Volume 2.1

Chairperson's Report

Tt hardly seems possible that a year has elapsed sincela group of us assembled in the EPD Seminar Room,Revenue Tower, on 16 March 1994 for the launch ofthe Hong Kong Environmental Law Association. Muchhas happened since that date for the Association andI hope that you will agree that much has been achieved.

There have been three submissions to government todate. In order, these are HKELA's submissions on theEnvironmental Impact Assessment Bill, the SewageServices Bill and the Dumping at Sea Bill. The fourthsubmission is under preparation and relates to theMarine Parks Bill. I am also pleased to report that itlooks likely that HKELA will be on the government'sconsultative list in the future, f thank all the memberswho gave up their free time in order to assist with thesubmissions.

HKELA has held numerous events throughout thecourse of the yean A seminar with the Hong Konginstitution of Engineers on environmental law in June1994; the presentation by Professor \fogel of the Uni-versity of Economics, Vienna in July; the visit ofMichelle Jordan, Deputy Regional Administrates of theUnited States Environmental Protection Agency; theorganization of an environmentalseminar on 1 October for the Law So-ciety of Hong Kong; the provision ofa speaker to Green Power's "Sympo-sium on Environmental Law of China"(November 1994); a contribution tothe Yearbook on International Envi-ronmental Law; guest speakers atvarious HKELA internal functionsnamely Jill Cottrell (HKU) and BrianBaillie (HKU); a discussion on the Ma-rine Parks Bill attended by On BrianDarvell (Marine Conservation Soci-ety); S P Lau and M K Cheung (De-partment of Agriculture and Fisher-ies), Jo Ruxton (WWF); Dr. S T CWu(Baptist University) and Peter Wong(Legislative councillor); provision ofa speaker for the Hong Kong Produc-tivity Council's seminar on environ-

mental auditors and management training; hosting ajoint event with the Hong Kong Waste ManagementAssociation on Waste Management Legislation, andof course, the Annual Dinner where we were honouredby the presence of Mr. Justice Litton, QBE. Eventsplanned for the future include a seminar on contami-nated land issues, details of which will be published indue course.

On the membership front, I am pleased to report thatour total numbers have now risen to 122 individuamembers and 10 corporate members.

I should also like to report that James Pearson wasco-opted to the Executive Committee in October 1994to replace Alan Wisdish who departed the territory forthe UK

Time is fast approaching for the second AGM, detailsof the venue and the date are noted elsewhere in thisnewsletter. All that remains for me to say is that re-grettably I shall not be able to stand for election to theExecutive Committee as I am shortly to be relocatedto my firm's London office. That said, with your con-tinued support and efforts 1 have no doubt that theAssoa'ation will continue to flourish. Finally, my thanksto my feftow meinbers of the Executive Cormitteefortheir enthusiastic sipport and dedication over the pastyear and my best wishes for 1995-6.

RonaWestgate

INSTOE22•3

667

EditorialNewsRegulating the International Trade of wastein Hong KongForthcoming EventsCorrespondenceInternational Marine PoinHongKong(Part2)

W EmmMarch 1995

11 Sub-committee Reports

HKELA Newsletter Volume 2.1

EditorialTt doesn't fee! as if the HKELA has been in existence forAas long as a year. Yet here we ate planning for our firstbirthday party, in the form of the upcoming Annual Gen-eral Meeting, scheduled for April 26. This is, of course, ourfourth issue of the Newsletter, which is also a milestone,representing a full year of effort. I've enjoyed the job ofeditor/ not feast because I have taken pleasure in beingcomplimented on the excellent content and presentationof this publication. As I have replied so many times, 1 haveto thank my very able Editorial Sub-committee, who actu-ally do virtually all of the work involved in putting thispublication together, and without whom this publicationsimply could not be produced. AH of the other members ofHKELA who have contributed deserve thanks as well Asour membership grows/ hopefully so will the list of regu-lar contributors.

Earlier I mentioned the upcoming AGM This is an impor-tant meeting for a number of reasons. It marks our firstyear of existence, but perhaps more importantly, it marksthe loss of our Chairperson, Rona Westgate, who is beingtransf erred back to the UK for business reasons. While noorganisation should be judged on the strength of one per-son's contribution, Rona has certainly been the motive forcebehind HKEiA's first year of existence - without her, wewould literally not have come into being in the first placeHer departure will be keenly felt by all of us,

Rona is not the only person retiring from active participa-tion in the admiiustrationof HKELA this year. Peter Hillshas also been forced to retire from the Executive OHttcrat-tee, as have Fred Kan and Terri Mottasheadl HopefiiBythey will continue to be active in supporting IIK1LA* ifnot in an executive role. Their collective departure pointsout one overwhelming fact about living and working inHong Kong-the nature of life here is erne ofs^Con tmual transformation is ar^life here in the territory.

Many would consider this a sad thing, and I for one amcertainly sad to seemyfrier^the Comrruttee, however, as Sun TmsaM in the ftf^cen-tury BQ 'If, m the other han£always reafy to seize an advantage, we may extricate ourselvesfrofn nu&jvriune*. The losis of Rona, Peter/ Fred and Terriprovides an opportunity for ofe, ^v"" ' " ^ ''ate to come to ti^ fore> to step into fiielneadi and helpachieve HKELA^s very wortfiwMe aims.

-meyiciber^^continue to grow and prosper to became an in^x>rtantf<»ceIn Hong Kong, we i ed you, the roembership, to pttll to-gether and take an a<^ve role. Mark ofi April 26 in your

wcaidoads) and if y<m think you have something to add,please $$epf0iw^4SQ^^taknt to succeed Rona and the o

lanDubm

News

HKELA Prize Awarded

HPhe Department of Law at the City University has1 awarded the first Hong Kong Environmental Law

Association Prize in Environmental Law to Amy ChowShuk Shan, a third year student in the LLB (Honours)Degree programme. Her essay concerning environ-mental impact assessment law in Hong Kong won thefirst prize. A brief synopsis of the paper follows:

"Hong Kong has enjoyed rapid economic development.Serious environmental pollution, however, is an un-fortunate by-product of economic success. The HongKong government needs to take steps, through statu-tory enforcement, to effectively protect our environ-ment now. If we delay, the future cost of rehabilitationwill be many times greater than the cost of presentaction. One statutory mechanism that has yet to beimplemented, but is currently being debated, is theproposed Environmental Impact Assessment Ordi-nance.

"The aim of this paper is to consider the effectivenessof Environmental Impact Assessment legislation. FirstI will discuss the present application of environmentalimpact assessments in the territory. Then f will pro-vide an account of the advantages and possible draw-backs of the draft legislation.0

Congratulations to Amy for a job well done!

Annual Dinner

TTcng Kong's environmental law fraternity gatheredAlin force at the Ballroom of the Hotel Victoria onFriday, 10th February 19% for the inaugural AnnualDinner of HKEIA

Enthusiasm for the event having been lamed by amasterful publicity campaign ably coordinated byJeanne Ng (with the benefit of the rather longer "leadtime" available for the event than its ultimately abor-tive predecessor in November 1994), approximately80 members attended. It was pleasing to see the As-sociation gather in such strength less than a year af-ter its launch, tie occasion drawing together manymembers who had not met previously, as a result oftheir particxilar interests focusing on different aspectsof the Assodation's activities. Those who arrived be-tween 6:00 p.m. and 8:00 p.m. in fie expectation ofbeing late need not have worried, since this periodwas unsurprisingly devoted to a phase of meeting andgreetir ,devedy unannounced in the publicity mate-rial to forestall those who habitually arrive just in timefor the first course. The coffviviality of this phase was

Page 3 HKELA Newsletter Volume 2.1due entirely to the wit and other attractive qualities ofthose present, the dwindling stocks at the bar not be-ing a relevant factor. After withstanding sustained pres-sure during this stage, the bar staff were relieved whendinner was announced and those present were inducedreluctantly to disperse in the direction of the tables.Several tons of environmentally unsound businesscards later, an awed hush fell upon the masses as theincumbent Chairperson, Rona Westgate, formallywelcomed those present (to the strains of backgroundmuzak which initially threatened to steal the show, butwas ultimately quelled).

One course then followed efficiently and tastily afterthe other, the way they do, and further refreshmentand conviviality were partaken of, the way they are,until Rona Westgate introduced the highlight of theevening, our distinguished guest speaker, the Hon. Mr.Justice Henry Litton. He gave an instructive and amus-ing speech, essentially advising those present to bewary of experts (including judges and lawyers!) andindependent of mind. In support of this advice, hereferred memorably to a recent planning appeal inwhich the Bench rejected the immaculately presented,glossy experts1 reports adduced by the Plaintiff andby the Defendant, on the basis that, while the relevantManaging Directors had duly waxed lyrical on the no-ble and just causes which they were respectively sup-porting, nobody had actually ensured that the few sta-tistics on which the verbiage relied had been preparedsystematically, reliably, or indeed by anyone who hadever been to school. Litton J was at times challengedby the pulsating sound emanating from the weddingreception in the suite next door, not to mention thecirculation of the petits fours nearer at hand, but hischaracteristically elegant and engaging delivery en-sured his victory over both these rival attractions.

Prof. Peter Hills then gave a vote of thanks (carried torapturous applause) aid presented Litton J. with some-thing in a box, whereupon those present hoovered upthe remaining petits fours, purely in tie interests ofefficient waste disposal, aid dispersed whence theyhad come, tired but elated, and imbued with the warmfeeling of (among other things) participation in a ven-ture which is well off the ground, gathering momentumstill, and justifying the large amount of time devotedby many to its establishment.

Stephen Birkett

Mai Po - RAMSAR

On 6 March, 1995, the Agriculture and FisheriesDepartment announced that the Governor-in-

Council had approved the listing of Mai Po and InnerDeep Bay under the RAMSAR Convention as aWetland of International Importance. This follows overa decade of lobbying effort by Hong Kong and over-

seas 'Green1 Groups. Hong Kong's obligations underthe RAMSAR Convention were briefly discussed inMary Au Yeung's article on the Nam Sang Wai case,in our last issue.

Regulating theInternational Trade ofWaste in Hong Kong

HPhe Waste Disposal (Amendment) Ordinance 1995A "the Ordinance" was gazetted on 17 February,

1 995. The amendment is intended to bring Hong Kongin line with the Basel Convention on the Control of theTransboundary Movement of Hazardous Wastes andtheir Disposal, 1 989 ("the Convention"). While it is notyet in effect, discussions regarding its implementationare ongoing, and it is expected to come into force withinthe next few months. The aim of this brief report is toexplain the basic framework of the Convention andthe Ordinance as well as to set out how China hasimplemented its international obligations under theConvention.

International Obligations and theConvention

The Ordinance is designed to control the import aidexport of hazardous and other wastes. This is part ofan attempt to f o f low the rules set out i n the Conven-tion. The Convention arose out of international con-cerns about the potentially adverse environmentalimpacts of the waste trade. Arraong other things, theConvention requires parties to:

* prohibit export of hazardous and other wastes un-less the exporter has obtained the consent of thestate of import and transit (tf applicable);

the import or export of Aazardbos andother wastes if there are reasons to be/ieve thatthey will not be managed in an environmentallysound manner, and

* require that information about a proposedtransbc^ndary movement of hazardous and otherwastes be pnovkled to any states cofK&mBd.

Furthermore, tie Convention prohibits trade in haz-ardous and other wastes wrth rxxvparties except un-der separate bilatefayrnultilateral jreenrients whichare compattote with tie fBqt«wiiertts«rft»Cowmi-tion(Articte11).

The Cotwentiort entered Wo force for each state vrtiichwas a party to it, including China, on 5 May, 1992.

HKELA Newsletter Volume 2.1Over 70 states have so far ratified it - it became effec-tive in the UK from 8 May, 1994. China ratified theConvention on 17 December, 1991. Hong Kong is nota party to the Convention.

The Convention is concerned with the transport ofwastes which are intended for disposal. Disposal isdefined to include biological or chemical treatment;landfill; release into watercourses, the sea, or sea-bed;incineration; permanent storage; or recycling (Article2(4) and Annex IV). Prior, informed, written consentfrom transit states and the state of import is required.This condition is enforced in a number of ways. Firstly,states are obliged to make it a criminal offence to traf-fic waste illegally (Articles 4(3)-(4), 9). Secondly, wherethe exporting state is the party at fault, then that stateis obliged, where practicable to accept the return ofthe illegal waste. Where the importing state is at fault,it is bound to ensure that the waste is disposed of inan environmentally sound manner. The requirementto handle waste in an Environmentally sound manner1

is one of the primary obligations of the Convention,applying equally to exporting, transit and importingstates, including trade with non-parties to the Conven-tion. Environmentally sound management is describedas:

"taking ail practicable sfeps to ensure that hazardouswastes orotherwastesare managed in a manner whichwill protect human health and the environment againstthe adverse effects which may result from such wastes"

(Article 2(8)).

Simply, parties to the Convention should not permitimport or export of waste which will not be dealt withor handled in an environmentally sound manner. TheCairo Guidelines and Principles of EnvironmentallySojnd Management of Hazardous Wastes, 1985wMchincorporate the use of best practicable means, ap-proval of sites aid facilities, disposal aid contingencyplar .arKJmonitc^ng, put this in more detail. Also rel-evant would be such dooments as the MARPOLCk)n-vention, and the International Maritime DangerousGoods Code which have recently been amended andadopted respectively in Hong Kong under MerchantShipping legislation (see HKELA December 1994,voi.1.3p.10).

The Convention (toes not contain any concitions re-lating to liability and damage for the transboundarymovement of waste, although Article 12 instructs theparties to cooperate with a view to adopting a Proto-col on this as soon as practicable, which, it has beenspeculated, could involve the setting up of an interna-tional compensation fund similar to that for oil pollu-tion incidents.

Hong Kong and The AmendedWaste Regime

The Ordinance is designed to regulate Hong Kong'sexisting waste trade in accordance with internation-ally recognized guidelines.

Firstly, the Ordinance repeals the existing s20 of theWaste Disposal Ordinance (tfWDOs) which prohibitedunauthorised importation of waste into Hong Kong forthe purpose of disposal.

In its place, the Ordinance adds a new Part IVA intoWDO, entitled "Control of Movement of Waste Into andOut of Hong Kong", and two new Schedules to WDO -6 and 7.

Schedule 6 contains wastes which have minimal en-vironmental effect and will only be subject to control ifthey are contaminated or imported or exported for thepurposes of disposal. Other uses (e.g. re-use, reproc-essing, recovery operation or recycling) are out withthe new controls. In 1993 3.6 million tonnes of Sched-ule 6 wastes, mainly consisting of plastic scrap, fer-rous and non-ferrous metal, waste paper and textilematerials, amounting to over HKS9.5 billion, were im-ported and exported. This list has been dubbed the'green lisf.

The new Schedule 7 is a list of wastes which lead to ahealth risk or pollution if improperly handled. The im-port and export of these wastes (95 thousand tonnesat HK$135 million in 1993, including primarily wasteoil, meta! bearing sludge aid etchant) will come un-der the new regime. This list is known as the 'red list*.

The total figures relating to trade in affected sub-stances, in 1993, has been reported as:

Imports $4.6 billion

Exports $2,1 billion

Re-exports $2.7 billion.

The import or export of any Schedule 6 wastes whichcome within the controls, or any Schedule 7 wastes,or any other waste which is not mentioned in eitherSchedule, will require a permit to be issued by the Di-rector of Environmental Protection ("the Authority*)before inr>portation/exportation can take place (see ss20Aand20B).

TTje new Part IVA provides that a person who appliesfor such a permit must make arrangements for Niteralia the waste to be managed in an envtranmentallysound manner (this term is not defined in the Ordi-nance * tie Convention's definition may therefore bea useful guide), and secure sufficient insurance andbond arongeimnts covering the intended consignment

as regards Hong Kong ami as regards tieoriginating and receiving state and any state of tran-sit Permits may be issued with conditions attached,

HKELA Newsletter Volume 2.1and may be revoked, varied or suspended upon breach(s20C). Under powers granted by s20D, the Authoritymay also issue general directions as to the handlingof the waste or shipment documents, or he may orderthat an exporter accept the return of any incompletelyconsigned waste.

Section 20E makes it an offence to import or exportwaste without the requisite permission, or with falselyacquired permission; to breach any permit condition;or to contravene any direction issued by EPD unders2QD. Seizure or disposal of the waste product in HongKong is allowed for by s20F which states that, uponconviction under s20E, EPD may seize and disposeof the waste, or require imported wastes to be returnedto the state of export. EPD may also order that ille-gally exported wastes should be repatriated to HongKong. If such instructions are not followed, EPD mayrecover any costs which it incurs in carrying out theoperation itself. This is the area which necessitatescompulsory bond arrangements. Similarly, for an ex-port permit to be issued there should be bond arrange-ments which are satisfactory to the competent authori-ties of the receiving state and any transit states con-cerning their internal seizure/disposal rules.

Compulsory liability insurance relates to damage tohuman health, property and the environment whichmay result from the import/export operation. Unfortu-

even a rare species,one lands every 2 minutes,

andlwk tithe fuss they makewtesw one ofthemdesi

ttsnotfmr,over $100 billion on

a sanctuary for those bigIron birds andwe only get

million for ours!

nately, this term is not defined in the Ordinance. How-ever, the term "[import into/export from] Hong Kong" isdefined as meaning "to [bring or cause to be broughtinto/take from or cause to be taken from] Hong Kongany waste ...". Thus it is arguable that potential liabil-ity "resulting from the [import/export] operation* will notbe restricted to just the pure transboundary carriageperiod or one-off events, but could result from anydamaging event which arises as a result of causingthe waste substance to be brought into or taken out ofHong Kong, e.g. leakage of a substance some timeafter it has been stored for disposal.

Fines for criminal offences in relation to the Ordinancerange from $200,000 and 6 months imprisonment forfirst offences to $500,000 and 2 years subsequently.As with other WDO offences, no mental element inthe form of intention, knowledge or negligence is re-quired to prove an offence has been committed; how-ever s20G allows for a defence if it can be proven byan accused that all reasonable precautions were takenand all due diligence was exercised.

China and Its InternationalObligations

As mentioned above Hong Kong is still consideringthe method of implementation of the Ordinance. Chi-na's implementation of the Convention will certainly

have an impact upon the trade of wastein Hong Kong after 1997. China hasbeen a signatory to the Conventionsince 1992 aid has already taken le-gal actions to implement its interna-tional obiigaticm

In early October erf 1993 the NaifragCustoms House found approximately1 , 300 tomes erf chemical wastes on aship from Korea. The ship intended todock at the port erf Mating and pre-sumably would discharge its stock ofwastes them. Official s have re vea ledthat the importation was based uponan agreement between a companyfrom Shanghai and a number of otherKorean industries. Apparently this was

Offi-cials further reported that the chemi-cal waste was identifted in the contractas "other fuel'. In iate October the Na-tional Environmental ProtectionAgency directed that fr>e Chinese com-pany return the waste that had beendelivered and prohibrted any furthershipments. The wastes were finallyreturned to Korea in early March, 1994.Officials in China reported the incident

HKELA Newsletter Volume 2.1to the Secretariat for the Basel Convention in Geneva.

In a separate case the city of Wenzhou's EnvironmentalProtection Bureau in Zhejiang Province discovered theimportation of almost 250 containers filled with com-mercial and domestic waste. The material had beenillegally imported by a local economic enterprise whichwas fined RMB 50,000.

Conclusion

In this brief report we have tried to explain the basicframework of regulatory control concerning trade ofwaste in Hong Kong. The structure concerning the in-ternational Basel Convention was first set out Nextthe legal measures provided for in Hong Kong'samended Waste Disposal Ordinance was explained.Finally a few cases concerning China's implementa-tion of its international obligations under the BaselConvention were described in order to shed some lighton factors that may affect Hong Kongfs operation ofwaste trade laws.

The regulation of the distressingly dangerous trade ofhazardous wastes is long overdue. States that havebeen condoning the exportation of wastes to jurisdic-tions where cheaper, yet riskier, disposal sites areavailable, should at the very least be required to abideby appropriate environmental standards and regula-tions. The effective enforcement of laws concerningthe trade of wastes in Hong Kong will be influenced byat least two important factors: (1) the future status ofHong Kong's position concerning customs in Chinaand the regulation of the waste trade by the Govern-ment; and (2) the provision of sufficient human andfinancial resources to enforce the law.

Bryan Bachner and David McKeflar

Bryan Bachner is a torturer in tfo Departedsity of Hong Kong, and chairman of the PRO sub-committee ofHKELA. DavkJ McKetlar a paralegal with B^rfow Lyde & GHbettSolicitors and member of the HKELA Water and Maritime subcom-

mittee.

Forthcoming Events

AGM

The HKELA Annual General Meeting will be held inEPD's Seminar Room (3120) 31 F, Revenue Tower, 5Gloucester Rdt Wanchai at 1815h on 26 April

Environmental Awareness Seminar

The Hong Kong Institution of Engineers is holding anEnvironmental Awareness Seminar on 8 April 1995

with speakers from the engineering profession and arange of environmental consultants talking on anumber of environmental issues. The seminar i$ from9.00 am to 12.00 noon on 8 April and costs H$150.Anyone who requires further information should con-tact Miss Angela Hui on 2895 4446 or Mr. C F Lam on2516 1739.

Environmental Risk -Are You Exposed?

Lovell, White Durrant is hosting a seminar on legalliability and minimising exposure to environmental risk,in their offices on 27 April, from 1700 to 1900h. Con-tact Elaine Omar on 2810 4770.

Environmental Audit ManagementCourse

The Association has been offered the opportunity tonominate one of it's members to attend a future HongKong Productivity Council 5 day course on Environ-mental Audit Management. Anyone interested in be-ing considered for the course please forward a copyof your CV to the executive committee.

Lunchtime Seminar

On 12 April Lovell White Durrant will host a lunehtimeseminar on the practical application of the New Zea-land Resource Management Act Details are avail-able from Ms. Lillian Lam cm 2810 4770.

Correspondence

Dear Sirs

I refer to Mary AuYeungJsi pcwt in the December 1994edition of the H KE LA Newsletter, on the Nam SangWai Case.

My artide entitled Planning Appeals Update'was pU>tished in the October 1994 ecitiort of The ftew Ga-zette1. The article also refers ID the Nam Sang Waicase. Subject to the views of the publisher lam happyfc^myartidetoberepnxJucedintheHKELANewslet'ter.

John M. WatchmanAinswort & Bayfdon

Thank you for your kind offer. We wfII try to find spacein a Mure issue. Any readers seeking copies shouldcontact the publisher of Tlie New Gazette^ Asia Lawand Practice on 2544 9918.

HKELA Newsletter Volume 2.1

International MarinePollution Conventionsin Hong Kong (Part 2)

In Part 1 of this article (see Vol. 1.3) I took a brief lookat international law in general and briefly noted themaritime pollution conventions which are relevant toHong Kong.

Merchant Shipping (Liability andCompensation for Oil Pollution)Ordinance (Cap 414)

This Ordinance (the "Liability Ordinance") appliesthe provisions contained in two international con-

ventions and two protocols to that convention - theInternational Convention on Civil Liability for Oil Pol-lution Damage (CLC) and the International Conven-tion on the Establishment of an International Fund forCompensation for Oil Pollution Damage (Fund), (seeTable 1)

As I mentioned in Part 1, the CLC came into being asa result of the 1969 Brussels conference. A similarconference in 1971 established the Fund Conventionsince it was recognised, even as the CLC was beingdrafted, that its financial compensatory provisions weretoo low.

CLC

Protocol

Fund

1969

1976

1971

Protocol 1976 31 January, 1980

1 April, 1976

8 April, 1981

16 October, 1978

*This is the date on which- the UK declared ratificationto be effective in respect of Hong Kong.

Table 1. Conventions which provisions aregiven effect to by the Liability Ordinance

Simply, the CLC and Fund Conventions determine whatliabilities there are, their limits and compensationamounts when persistent oil escapes from a ladentanker.

The CLC and Fund Conventions currently each havetwo additional Protocols to which Hong Kong is notyet a party. The Liability Ordinance consists of fourparts: Part II deals with the CLC provisions, white PartIII applies the Fund convention.

Liability Ordinance Part II: The CLC

The CLC has three fundamental elements: strict liabil-ity, higher limits of liability than traditionally normal,and compulsory liability insurance.

Strict Liability

Section 6 of the Liability Ordinance abandons the tra-ditional concept of liability based on fault and insteadimposes a strict liability on ship owners for oil pollu-tion damage caused in Hong Kong which arises as aresult of any occurrence which takes place white a shipis carrying a cargo of persistent oil in bulk. Pollutiondamage is defined as:

'damage caused outside a ship carrying oil by con-tamination resulting from the discharge or escape ofoil from the ship, wherever the discharge or escapemay occur, and includes the cost of preventive meas-ures and damage caused by preventive measures".

Thus the focus is on harm to persons or property. (Morerecently this has been viewed as restrictive and out-dated, as awareness of wider possible environmentaldamage has grown. The 1984 and 1992 Protocols,which do not apply to Hong Kongf indude impairmentto the environment and reasonable costs of reinstate-ment).

However, the strict liability imposed on ship owners isameliorated by the exceptions allowed for in section 7where, in a few particular cases, there will be exemp-tion from liability: where the damage resulted from ei-

ther an act of war or grave natural disaster; sabo-tage by a third party; or the fa if ure of authorities tomaintain navigational aids.

Limitation of Liability

The se<x>rKJ element of the CLC was to inccnporatethe maritime tradition of limiting a ship owner's I-ability. Section 8 of the Liability Ordinance restrictsthe liability of a ship owner, and of any of his agentsor servants tto the damage ietefitified under $ec^6»ie. the ship owner wil not incur liability for any~thing other than "pollutk n damage* as it is describedtherein.

As well as restricting liability, there is also limrtationon the actual amounts for which a ship owner maybeliable, which is linked to the tonnage of fie vessel.Section 7 (giving effect to fie 1976 Protocol) limitsMs amount to 133 Special Drawing Rights (SDR's)per ton, with a maximum of 14,000,000 SDR's (=c. 104,000 tons) (An SDR is a unit of account used bythe IMF, which is convertible into most national cur-rencies. Presently 1 SO R = ca.HK$ 11,4, whk^ placesthe maximum liability shipowner at ca.HK$159 mil-lion.

HKELA Newsletter Volume 2.1This in fact represented a considerable change backin 1969 - the CLC, in taking into account the capacityof the insurance market to provide insurance at rea-sonable costs, was able to double the then limits ofliability for owners of ships (under 1924and 1957 gen-eral shipping conventions - which limits were neverintended to cover pollution damage, and were conse-quently quite low).

The Liability Ordinance provides certain rules in sec-tions 10-14 which allow a ship owner to establish hislimit of liability and pay this sum into court The courtwill then determine the amounts due to claimants inrespect of their claims for pollution damage and dis-tribute amounts in proportion to claims. Once a pay-ment into court has been made, any ships or propertyarrested will be released. Such a claim must be broughtwithin 3 years of the claim arising or within 6 years ofthe polluting event. There are also special rules forthe situation where a liability arises against a shipowner in more than one country which is a member ofthe CLC.

Compulsory Insurance

The third element of the CLC was to introduce a sys-tem of compulsory insurance. This is of great impor-tance. The owner of any ship carrying morethan 2,000tons of persistent oil must maintain sufficient insur-ance to cover his liabilities (s 15).

Such cover is evidenced by a certificate of insurancewhich may be issued by the Director of Marine (unders 16), or the recognised authority of any other countrywhich is a party to the CLC. In order to obtain such acertificate, the provisions of Article III of CLC must becomplied with, namely sufficient proof of insurance.As a party to the convention, Hong Kong should en-sure that no ship which is carrying more than 2,000tons of persistent oil be allowed to enter or leave HongKong's waters without the required certificate of insur-ance.

Persistent oil is described in the Compulsory Insur-ance Regulations of the Liability Ordinarice as eitherhydrocarbon mineral oils, residual oils or whale oils.

Section 17 allows a right of direct action by third par-ties against insurers, who enjoy the same limits anddefences as a ship owner might.

As a whole these three elements of the CLC (and the1976 Protocol), as implemented by Part II of the Li-ability Ordinance, namely strict liability, limitation ofthat liability and compulsory insurance with a right ofdirect action against the insurer, have greatly contrib-uted to improvement of the position of victims of oilpollution. The replacement of a fault based system,increase In the limits of liability and the changes to theprovision of insurance represented quite majorchanges in the 1969 conservative maritime world.

However they have also reduced the need for litiga-tion in cases relating to liability for oil pollution dam-age.

The Fund Convention

The Fund Convention was established in order to pro-vide supplementary compensation to those who couldnot obtain full compensation for oil pollution damageunder the CLC (bearing in mind the limits which ap-ply) and also to indemnify ship owners for a portion oftheir liability under the CLC.

The Fund Convention has four main elements to it;supplementary compensation for victims, indemnifica-tion of the ship owner for part of his liability, establish-ments of an intergovernmental organization to admin-ister the system of compensation, and a financing sys-tem.

Organization

The Fund Convention set up an organization, the In-ternational Oil Pollution Compensation Fund, whichadministers the compensation system created by theconvention. It is constituted by an assembly (com-posed of a representative of all the member states),an executive committee (elected from the assembly)which approves settlements of claims against the IOPCFund, and a secretariat which handle any claims madeand effects payment to sufferers of the pollution dam-age.

Financing of the IOPC Fund

The IOPC Fund is financed by persons in memberstates who receive more that 150,000 tonnes of oilper annum by sea transport. Section 23 of the Liabil-ity Ordinance provides that

"Contributions shaft be payable to the Fund in respectof (^l(^med by sea to ports of terminaJ installations inHongKong".

Each year, any person who may be!iabie to financethe Fund should furnish the Director of Marine withdetails, inducing the quantify of oil received (s24 Li-ability Ordinance). These are then passed on to theFund who calojlates what level of contribution to levybased on payments of compensation for that year Thecontributors (i.e. receivers of oil) are then liable to paythe IOPC Fund directly. In 1990 the levy was £0.0005pertonneof oil; in1991 it was £0.028 per tonne.

Supplementary Compensation

The IOPC Fund will pay compensation to any personwho suffers oil pollution damage and does not receivefull compensation under the CLC, either because theovmer can invoke one of the exemptions, the cwmer orhis insurer is unable to meet his obligations, or tie

HKELA Newsletter Volume 2.1damage exceeds the total liability of the ship owner.Section 25 also limits the maximum total amount pay-able under the CLC and Fund conventions to 60 mil-lion SDR's (approximately HK$680 million).

The IOPC Fund will settle all claims up to this limitonce satisfactorily proven.

Both the CLC and the Fund convention use the term"pollution damage " {which I defined earlier) to describecompensatable loss. However the actual meaning ofwhat does and does not constitute pollution damageis not totally clear. The IOPC Fund has some experi-ence in interpreting this, and will pay compensationfor the following:

• expenses incurred for clean-up operations

• cosfs of preventive measures where reasonable

• cosfs of cleaning or repairing real property

• cosfs of cleaning or replacing personal property

• economic loss suffered by those who depend di-rectly on earnings from coastal or sea-relatedactivities.

Indemnification of the Ship owner

At the 1969 conference it was generally believed that,although compensation levels had to be increased, inprinciple ship owners should not bear the financialburdens imposed on them by the CLC. This compro-mise resulted in the ship owner (or his insurer) beingcompensated for approximately one quarter of his li-ability under the CLC.

Since these rules came into force, there have beenno claims against the IOPC Fund relating to inci-dents in Hong Kong's waters. In fact, outside ofJapan there has been only one incident in Asia(in Indonesia).

A Protocol was made to the Fund convention in1984 which provided tor higher limits of compen-sation and a wider application than was than aval-able. This Protocol never achieved the requirednumber of ratifications to bring it Mo being, sothat a Protocol was recently proposed In 1992,including most of the 1984 Protocol provisions,but with easier entry-into-force conditions.

Pollution Casualties (the "Intervention Convention")and the International Convention for the Prevention ofPollution from Ships ("MARPOL"), along with a twoprotocols, and some annexes to the latter

The Control Ordinance, like the Liability Ordinance,localized the previous legislation - replacing the Or-ders-in-Council which had previously extended appli-cation of the provisions of the conventions to HongKong.

Whilst the CLC and Fund Conventions dealt with li-ability and compensation for oil pollution, these twoconventions are concerned with the prevention andcontrol of pollution from accidental or operationaf dis-charges of oil or other potential pollutants (includinggarbage and sewage) from ships. A third topic - thedumping of waste materials at sea is the subject of yetanother convention/piece of legislation.

The Intervention Convention arose from the same 1969Brussels conference as the CLC - it was then referredto as the public law1 convention since it dealt with rightsbetween states as opposed to private parties. It clari-fied the position with regard to what right a state hadto take action against foreign vessels beyond its terri-torial seas (the right of a state to take action within itsterritorial seas being established), as the UK had donein relation to the Tonrey Canyon. Although the Inter-vention Convention allows such action, it is limited toactions taken in order to prevent imminent danger tothe coast or sea by pollution as a result of a marinecasualty. These limiting factors and the narrow defini-tion of sea/coast have been criticised as insufficient toensure protection of the marine ecosystem outside ofeconomic interests.

Haute

MARPOL

Protocol

Iittei"veiilion

Protocol

Date

1973

1978

1969

1973

Date of eitLcy isix> foice*

11 April, 1985

11 April, 1985

6 May, 1975

30 March, 1983*Th» is the date on which the UK declared ratificationto be effective in respect of Hong Kong.

Merchant Shipping (Preventionand Control of Pollution)Ordinance 1990 (Cap 413)

Table Z Convention which provisions aregiven effect to by tfoe Control Ordinance

This Ordinance (the "Control Ordinance") also imple-ments the provisions contained in two major interna-tional conventions - the International Convention re-lating to Intervention on the High Seas in Cases of Oil

Control Ordinance Part II: MARPOL

Part II of the Ordinance deals with MARPOL One ofthe niain provisk>ns of the ordir nce are the regula-tions which may be made *for the preventk^fro! erf pdJuiorf by the G<mmx*jg*Cmmi* Suchregulations have been issued urKJers.3 of the Control

HKELA Newsletter Volume 2.1Ordinance. They are listed in Appendix 1. They aremainly of a technical nature. Briefly, the first two setsof regulations relate to oil and non-oil noxious sub-stances respectively and the compulsory reporting ofactual or threatened pollution. The BCH codes applyto chemical tankers built before July 1986 - those builtafter are dealt with by the IBC code. Lastly, the Ex-emption Notice exempts every locally licensed shipfrom complying with certain provisions of the Oil Pol-lution Regulations, except those listed within its sched-ule, e.g. Jumbo floating restaurant

Penalties for contravening these regulations can beup to HK$5 million and 2 years imprisonment.

The UK has declared the 1978 Protocol and two ofthe five optional annexes to MARPOL to also be elec-tive in respect to Hong Kong. The Protocol relates tothe reporting of incidents and is dealt with in the 'OilPollution Regulations1. Optional Annexes I and II ofMARPOL are dealt with in the Oil Pollution and Nox-ious Liquid Substances Regulations respectively.

Although optional Annexe III has not been adopted forHong Kong, its provisions are given effect to locally inthat part of the Merchant Shipping (Safety) (Danger-ous Goods and Marine Pollutants) Regulation 1994(see VoM 3 pg 10) which relates to marine pollutants.Annex III deals with prevention of pollution byharmful substances carried by sea in packaged forms,or in freight containers, portable tanks or road and railtank wagons.

Optional Annexes IV and V to which Hong Kong is nota party, relate to:

IV prevention of pollution by sewage from ships.

V prevention of pollution by garbage from ships

Control Ordinance Part lit: TheIntervention Convention

Part III of the Control Ordinance deals with those pro-visions of the Intervention Convention mentionedabove. The original Intervention Convention (1969)dealt only with oil pollution casualties. The 1973 Pro-tocol extended its provisions to substances other thaioil. These allow the Governor to take urgent action tominimise a threat of targe scale pollution (by oil or non-oil substances) in Hong Kong from a shipping casu-alty whether or not it is inside Hong Kong's waters,although if the casualty is in extra-territorial waters suchdirections may only be made by the Governor to a Brit-ish citizen/national. Also, any action taken by theGovernor, which is not reasonable or necessary in thecircumstances, may result in compensation. TheSpecification of Substances Order (see Appendix 1)lists the non-oil substances against which the Gover-nor may intervene to prevent pollution outside the ter-ritorial seas.

These provisions may seem obvious, but they too pre-sented quite a large change in the maritime worldwhere the freedom of the high seas is one of the para-mount rules. The freedom of the seas as a concept isa common thread which runs through all maritime af-fairs - it provides help in understanding the frameworkwithin which international shipping operates. In itsnarrow legal meaning it includes the freedoms to navi-gate upon the high seas, to enter or leave ports ofother nations, to fish, to lay submarine cables and touse the air space above the high seas, all without letor hindrance. In a wider sense It is the freedom to tradeone's ships without interference by others, particularlyforeign governments - the open seas are the commonheritage of all nations and not susceptible to appro-priation by any one nation. This means that no onestate has the right unilaterally to regulate: it must befor the good of all.

David McKellar

The final part of this article will appear in the next issueand will include the appendices referred to in this part.

Environmental LawDigest December 1 994

to March 1995

LegislationHew vehicle design standards are pro-

hide Design Standards) (Emission) (Amendment)Regulation 1995 [LN37/95]. The emission pollutionstandards for certain vehicles first registered after 1stJanuary 1992 were amended, and new standards willcx>me into place few* certain vehicles first registered afterIstApriM 995 which will affect diesei and goods vehi-cles and light buses.

The Wast* (Amendment)^1984 was irfftxl

lat i ve Council in December, resulting in the WasteDisposal (Amendment)0rdinance1995[14of 1995].This is detailed elsewhere in the newsletter.

Charges for the disposal of chemical waste at theGovernment's chemical waste treatment centre wi IIcome into operation on 16th March by virtue of theWaste Disposal -(Charges for Disposal of Chemi-cal Waste) Regulation [LN30/95] Wastes wili be splitinto twtocategoiiesfor tie ptj powofctwi -dieiiil-ca I and special chemical waste, the latter either con-

J

Page 11 HKELA Newsletter Volume 2.1

Water

taining PCB's, being unsuitable for its intended pur-pose, or having been imported into the territory for dis-posal.

The Sewage Services Ordinance[105 of 1994], which provides for the

imposition of sewage charges for all persons and tradeeffluent surcharges for owners of commercial enter-prises, was gazetted. It will come into effect on a dayto be appointed by the Governor.

The Sewage Services (Sewage Charge) Regulation[LN59/95] sets the sewage charge rate at $1.20 percubic metre of water. The trades which qualify for a20% reduction include bleaching and dyeing, drinksmanufacturers and restaurants. This will come intooperation on 1st April 1995.

Due to take effect on the same day, the Sewage Serv-ices (Trade Effluent Surcharge) Regulation [LN60/95] lays down a system to calculate the trade effluentsurcharge which is payable by certain non-domesticconsumers of water, as specified in schedule 1. Use isthen made of a system of matrices to calculate thecharge which is dependent on whether or not thepremises are located in a water control zone. Unders13 of the Sewage Services Ordinance, the TradeEffluent Surcharge Scheme Technical Memoran-dum on Procedures and Methods for Sampling andAnalysis of Trade Effluents has been published. Itsets out the procedures and methods to be adoptedfor sampling, analysis, approval of laboratories, pres-entation of results and any other matters relating tothe establishment of specific effluent characteristics.

The Animal and Plants (Protection^ Endangered Species) (Amend-

ment) Ordinance [3 of 1995] was enacted on 13thJanuary 1995. It increases the penalties for those whotrade in endangered species of plants aid animals.

The Kadoorie Farm and Botanic Garden Corpora-tion Ordinance [9 of 1995] came into effect 20th Janu-ary. It signifies the changing role of the farm, which isnow controlled by a body corporate aid managed asa centre for conservation and education for the publicbenefit

Previously, liability for injury or damage resulting fromthe carriage of nuclear material in Hong Kong wasregulated through UK Acts (the Nuclear InstallationsAct 1965, Congenital Disabilities (Civil Liability) Act1976 and Energy Act 1983) extended in part to HongKong by the Nuclear Installations (Hong Kong) Orders1972-1986. It is now proposed to localize the legisla-tion by the Nuclear Material (Liability for Carriage)Bill. The new legislation merely replicates the exist-ing situation which is designed to give effect to theParis Convention on Third Party Liability in the Field

of Nuclear Energy, 1960 and its subsequent 1964 Pro-tocol

David McKellar

Sub-committee Reports

Water and Maritime / Waste

Q ince the fast issue of the newsletter, the sub-cornk3 mittees have held two joint meetings. At the first agroup of over 20 people heard short talks from Dr. BrianDarvell (Marine Conservation Society), Jo Ruxton(Senior Conservation Officer of WWF), Dr. S T Chiu(Baptist University and a member of the Marine Parksand Reserves Working Group) and S P Lau (Assist-ant Director (Conservation and Country Parks) of Ag-riculture and Fisheries Department) on the topic of theMarine Parks Bill, after which lively discussion tookplace. At the second meeting, the Marine Parks Billwas again discussed with the aim of formulating theAssociation's comments upon it.

David McKellar

PRC

nnhis report will introduce sane of the recent develA opmenis in China's domestic enviromnentaf law, I

would like to thank Wang XI of Wuhan University forhis help m compiling this information.

On 10 January 1994, the State Council published theCircular on Further Controlling the Import and Exportof Chemical Raw Materials Which May Be Used toMake Chemical Weapons. The purpose of thecircthla" is to implement the international Convention on theProhibition erf the Development, Production, Stockpil-ing and Use of Chemical Weapons and on their De-struction (1993). The Ministry of Chemical Industry ofPRC is the responsible autiority.

A number of offices including the National Environ-mental Protection Agency (NERA), the Custoins Ad-ministration (CA), and fie Ministry of Foreign Tradearid Economic Cooperation ffTEC) erected the Pro-vis ions on the Environmental Management of First-Time ImportatiOT of Chemicals arxi Import arKJ Exportof Toxic Chemicals in the middle of March 1994. Thereason for enacting fie provisions is to implement theLondon Guide! ines on the Exchange of InternationalChemicals Trade Information (1989).

The National People's Congress (NPC) promulgatedthe Foreign Trade Law of fie PRC in iiajt Thetewr

HKELA Newsletter Volume 2.1prohibits the impact or export of goods banned underdomestic legislation in foreign countries if it has beenfound that the goods may cause harm to human healthor damage the environment.

The Rules for the Implementation of the Mineral Re-sources Law of PRC, implemented by the State Coun-cil in March 1994, sets out that the ownership of allmineral resources in China rests with the state. TheState Council also published the Regulations Govern-ing the Collection of Compensation Fees for MineralResources in February.

The Environmental Protection Plan Management Pro-visions was enacted by the National Planning Com-mittee of the State Council and NEPA in August. Thelaw provides regulations which require policy makersto integrate environmental protection strategies intothe local and national economic plans.

Bryan Bachner

Sub-committees of HKELA

Seminars, conferences, field trips, fund raisingand social events (contact Professor Peter Hills,Tel 2859 2720, Fax 2559 0468)

HKELA Newsletter (contort Ian Dubin, Tel 2835

1129, Fax 2591 0558)

Water/Maritime (contact Terri Mottershead, Tel2859 2972, Fax 2559 3543)

Noise and Air (contact Martin David, Tel 2810 4770,Fax 2537 1907)

Waste (contact Rona Westgate, Tel 2810 4770, Fax25371907)

PRC (contact Bryan Bachner, Tel 2788 7677, Fax2788 7530)

External RelationsStudents (contact Jane Dykes, Tel 2922 8303, Fax2845 9892)

Editorial sub-committee

Ian DubinMarc Smith-EvansMaryAu YeungEdwin ChanDavid McKellarStephen BirkettJames Pearson

Fax2591 0558254626592810470828451559281059942525288627235660

Phone

2835 11292835 12592801 02292848236625264202252608082722 9734

Contributions are welcomed for the next Issue, theclosing date for these is 16 June.

Hong Kong Environmental Law Association Individual Membership Application

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Membership Category: Full Q Student ED Membership fee (Full HK$300 Student HKS100) plus joining fee $100.Please sign and return this fonn together with a cheque for the total anx*^tion c/o Rout WKtgste, Lovdl WMfce Dunrant llth Fk**; Peregrine Towg; Lippo Centre, Qoccasway Hong Koog. FAX 2&6S-40SL(Cheques only please). Total anxxjilt eiKlosed; HK$

Declaration: If accepted by the Execiitive Committee of the Hong Kong Environmental Law Association (HKELA) as a member of theHKELA I agree to abide by its Constitution, to promote the objects of the HKELA to the best of my ability and to pay the annualsubscription (at a rate to be detenniiKriaim^

Signed Date Please photocopy this fbi 111,

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HONG KONG

ENVIRONMENTALLAW ASSOCIATION Newsletter

Summer 1995 Volume 2.2

Notes from the New Chair

The Hong Kong Environmental Law Association isnow moving into its second year and I think I can

say, without being immodest, that we have come a longway toward achieving our objective of increasing thecommunity's a awareness on relevant environmentallegal issues. In the past year our subcommittees havebeen involved in organizing more than 10 seminarsfor our membership, helped initiate with the Law Soci-ety an environmental law programme for the Continu-ing Legal Education series, published an internationallyrecognized newsletter and provided the Governmentwith three timely HKELA Reports on the Environmen-tal Impact Assessment Bill, the Sewage Services Billand Subsidiary Legislation and the Dumping at SeaBill among other things. We have a healthy member-ship of 162 persons, including individual, corporateand student members.

In this upcoming year HKELA is moving from strengthto strength, looking to reinforce our outreach with ourmembership and the public through more and betterseminars and publications. We are already initiatinga new reporting series whereby all official publicationsof the Hong Kong Environmental Law Association willbe available in convenient form for interested parties.We are also thinking about ways inwhich we might improve our seminarprogrammes including involving our-selves with appropriate professionalseminar organizations. We are alsoconsidering how to re-engineer oursub-committee structure so as to pro-vide the most effective system of com-munication and operation within theAssociation.

and the HKELA community we would like to thank youfor your past contributions and look forward to futurecooperation with all of you. I would also like to takethis opportunity to acknowledge and welcome the newExecutive committee members, Mr. Andrew Alionby,Mr. Stephen Birkett, Mr. David McKellarand Mr. SteveHoward.

If you have any suggestions or criticisms or would likemore information on the Association, please feel freeto contact myself or any member of the Executive Com-mittee.

Bryan Bachner

News

New SecretaryTHhe Association has had an untimely toss from theJL Executive Committee, occasioned fay the resigna-

tion of our founding Secretary, Martin David, Martinhas resigned from Lovell White Durrarrt and soughtgreener (if perhaps more boring) pastures in Singa-pore. Martin's place will be filed by ils. Mary Gibb, of

I know, however, that I can say thatour progress would not have been soconsiderable had it not been for theleadership, commitment and hardwork of our past chair Rona Westgateand retiring executive committeemembers Professor Peter Hills andTerri Mottershead. Speaking on be-half of the new Executive Committee

INSIDE

233

3

EditorialForthcoming Events

Scholar Speaks Soberly on PRC LamInternational Marine Pollution Conventionsin Hong Kong (Part®Environmental Law Digest March 1995 toJimeim

6

7

Sub-committee ReportsConstitution of the HKELA

HKELA Newsletter Volume 2.2

Editorial

Once again the deadline for the HKELA newsletter has rolled aroiind, and once again we've

missed it, unfortunately this time by a larger marginthan usual For that, I offer you, our readership, myapologies. Please note, however, they are certainlynot offered humbly, and I am not confessing any guilt.Nor have I remonstrated with this issue's contribu-tors for being late (well, not much). They have allserved us very well by taking time off from extremelybusy schedules to do as much as they have. It is wrongto single anyone out, but I am going to do so none-theless - David McKellar is in the midst of exams, yethe has still managed to produce a first rate digestand has completed his series on marine pollution.Bryan Bachner, our new Chairperson, has not onlyproduced a statement of where he hopes to take oursociety and how he intends to get there, he has alsoproposed some very innovative approaches to semi-nar and conference management (see elsewhere inthis issue) - and, incidentally, managed to keep hisjob. The otiher members of the new Executive Com-mittee have also been very active in assessing ourfuture needs and assisting taking Bryan's proposalsforward.

-Doe&.rtwB. any ot y*w, tha members feeltwinges of guilt, no matte how minor? It is intendedto. This association can not tihrive if it ison the shoulders of just a few members.

Supported"™-—[faitgoes

Now, haviiig lambasted you all, as any good preacherwould, I am going to provide an opportunity for re-cteiptfeMV as Aat same preacher should. Elsewhereis ftis issue you wil fifid an excellent proposal forjoint conference maiiagement with a professionalpublishing firm. They will assist with organisationand ffeandal assistance, we will be expected to pro-vide guidance and expertise. That brings me to thepewit <rf this paortiotlar tirade:

Guidance... what would you lite to see a seminarptseeentetion on? What subjects ofenviraranentallawwould you Bke to see explored by your Associationcolleagues? and;

Expertise what ate your interests aed abilities andhew can you hdp educate your Mow associationi»etxtbeE^ and otter meiribers of the ccradoaunity, Inyour parfefa auea erf ^»daIM tocwiedge?

Take five mraates right now and jot dtoro youron a piece erf paper and fapc it to our new

&pgA^

fhaft we ait pttt ao ttyjqgjhft into

lanDubin

Consultants in Environmental Science (CES) Asia Lim-ited.

Those of us on the Newsletter sub-committee (and, Iam sure, in the rest of the Association) wish Martinevery success in his new endeavours with Linklatersand Paines in Singapore. As well, this would be anappropriate time to extend our thanks to Lovell WhiteDurrant for all they've done to assist us through ourfirst year and a half. We hope that Martin's departuredoes not sever our ties with LWD and we look forwardto receiving the first issue of the Newsletter of the Sin-gapore Environmental Law Association!

Conference Manager AppointmentA s this Newsletter goes to press the Executive Com-

./jjnittee is in the process of finalizing arrangementswith an International publisher who also specializes inorganising and running professional seminars on awide variety of topics. The intention is that they willassist in organising, advertising and running a seriesof professional seminars on topics related to environ-mental law. HKELA members will receive a discounton conference fees. In return, HKELA will assume ajoint organisation role and will assist in guiding anddeveloping potential seminar topics and in providing(or assisting in recruiting) speakers on appropriate sub-

it is intended to hold our firstmajor seminar sometime this fall. One possible topicof potentially wide interest is contaminated land. If anyof the membership have any thoughts on topics whichare overdue to be addressed, please contact the Sec-retary at your earliest convenience.

Change of AddressTHhe legal address of the society will have to beJL changed in accordance with the requirements of

the Societies Ordinance. In the meantime, correspond-ence should be addressed to HKELA, c/o Consultantsin Environmental Science Ltd, Room 1201, Tai YauBuilding, 181 Johnson Road, Wanchai. Fax 28910305.

Administration Manager Wanted

HKELA is looking for someone to assist with theadministrative duties of the association on a part

time, salaried basis. We are mainly looking for some-one to assist in maintaining the membership databaseand records. If you know of anyone seeking part timeemployment with administrative skills, time to spareand modest salary expectations contact Mary Gibb on2891 0305 for a copy of the job description.

HKELA Newsletter Volume 2.2HKELA on the INTERNET

We have been invited by a commercial firm to provide our newsletter for transcription and publi-

cation on the INTERNET. An alternative would be topublish our own home page on the World Wide Web.Have we any accomplished computer nerds amongstthe membership who might want to take this on? If socontact Ian Dubin at 2835 1129.

Forthcoming Events

he Centre of Environmental Technology has scheduled two 5 day courses for training environmental

auditors, one is in September 1995 and the other is inMarch 1996.

It seems probable that HKELA may have some freeplaces for the March Seminar. If you feel you shouldbe granted one of these places (if available), or if youwish to nominate someone, you should write to BryanBachner.

Scholar Speaks Soberly onPRC Law

TPhe Hong Kong Environmental Law Association inJL association with the Centre for Chinese and Com-

parative Law organized a seminar by Wang Xi, Pro-fessor of Law at Wuhan University Research instituteof Environmental Law and Member, Commission of En-vironmental Law, IUCN titled The Framework of Envi-ronmental Law in the People's Republic of China be-fore about 35 people at Deacons on 27 March 1995.

Professor Wang's talk provided HKELA members withcomprehensive outline concerning the system of en-vironmental law in China today. He first pointed outthe considerable economic growth which China en-joys : In 1993, the growth rate was 13.4% and the av-erage national income increased from 315 Yuan in1978 to 1,271 in 1990. A by-product of this growth,however, has been a substantial expansion of envi-ronmental pollution in air, land and water,

In order to deal with this environmental pollution, thestate is developing a comprehensive legal environmen-tal framework. In China, Professor Wang states, thereare four levels of law divided by the authority of legis-lation. In the first level is the constitution as well asadministrative, civil and criminal laws. In the secondlevel are international conventions, the environmentalprotection law and other environmental laws. In thethird level is the regulations of the State Council, Min-istries and Commissions. In the fourth level are the

laws and regulations of provinces, autonomous regionsand municipalities.

According to Professor Wang there are a number ofways that the state may impact upon the implementa-tion of the environmental laws. There include con-gressional inspections, congressional proposals, billsand inquiries as well as the making and amending ofrelevant laws. He suggests, nevertheless, that therestill are some problems with the process. These prob-lems include weakness in supervising governmentalbudget and expenditures, weakness in cancelling gov-ernmental rules and decisions and weakness in re-calling government officials.

He discussed the enforcement side of the issue also.He outlined a variety of legal mechanisms available togovernment to enforce the environmental laws that doexist. He commented upon warnings and notices,fines, suspending or stopping illegal operation or ac-tivities, public prosecutions, judicial enforcement ofadministrative decisions, judicial review and adminis-trative review. Additionally the frankly spoke aboutwhy China still has problems with enforcement. Hementioned the difficulty in balancing economic, socialand environmental values; local environmental protec-tionism and inter-province and inter-county competi-tion for natural resources. He also remarked that un-fortunately the reform is not making environmentalprotection any easier for the government. New prob-lems that will certainly impact upon environmental lawimplementation include: the reorganization of enter-prises, the emergence of stockholder companies; theemergence of foreign investment enterprises and thefast development of special economic zones.

He concluded that a large legislative framework forenvironmental protection has been established. Anumber of difficulties, nevertheless, still exist Includ-ing backward production technology, poor economyunder a heavy harden of population; the incomplete-ness of environmental legislation and regulation, lowenvironmental awareness of the population and thelack of an incentive mechanism for the integratbn ofthe environment and the economy.

Bryan Bachner

International MaritimePollution Conventions in

Hong Kong (Part 3)

T)arts 1 and 2 of ftfeatfcfe ((1994) 1.3HKELANew&JL letter and (1995) 2.1 HKELA ) looked at interna-tional law in general and the provisions of two piecesof legislation - the Merchant Shippirtg (Uataify and

HKELA Newsletter Volume 2.2Compensation for Oil Pollution) Ordinance and the Mer-chant Shipping (Prevention and Control of Pollution)Ordinance.

Dumping at Sea Act 1974(Overseas Territory) Order 1975This UK Order (which, for convenience, I shall call the"1974 Act") extended the provisions of the Dumpingat Sea Act to a number of overseas territories of theUK, including Hong Kong. In fact the 1974 Act hasnow been repealed in the UK and replaced by the Foodand Environment Protection Act 1985.

The 1974 Act was designed to giveeffect to the Con-vention on the Prevention of Marine Pollution by Dump-ing of Wastes and Other Matter ("LDC") which wasadopted at London in 1972 (soon after the influential

Name of conventionor protocol

LDC

Disputes

Incineration

Amendments

Date

1972

1978

1978

1980

Date of entry into force*

ing at sea without a licence by any ship inside HongKong's waters or any British ship outside Hong Kong'swaters. The LDC adopted a very general definition ofwhat should not be dumped:

"Wasfes or other matter' means material and sub-stances of any kind, form or description".

Similarly wide, the 1974 Act refers merely to "sub-stances or articles". In deciding whether or not to granta licence to dump under the 1974 Act, the Governor(or DEP or DCES) must have regard to paragraph 2(1)of the 1974 Act, which includes the need to protectthe environment and its living resources, and includesconsideration of the nature of the substances to bedumped. Presumably during this decision making proc-ess the Annexes to the LDC will provide guidance. Itis therefore a pity that these factors are not includedin the actual legislation. Licences may be granted sub-

ject to certain conditions.Rights of appeal are allowedfor.

17 November, 1975

21 March, 1980

11 March, 1979

11 March, 1981*This is the date on which the UK declared ratification of theinternational instrument to be effective in respect of Hong Kong.

What the LDC does not do isintroduce a liability and com-pensation scheme. There ispresently a draft internationalagreement (the Draft Conven-tionon Liability and Compen-

Toble 3. Convention and protocols given effect to by the 1974 Act

1972 Stockholm Declaration on the Human Environ-rnent)and a number of subsequent protocols.

The LDC is a convention designed to "control" oceandumping so as to limit it to the dumping of waste inquantities or concentrations of which the marine envi-ronment has the capacity to render harmless. The LDChas three annexes attached to it. Annex I (the "blacklisf) contains a list of substances which should notbe dumped unless they will either be rapidly renderedharmless by the processes of the sea, or are containedin wastes as trace amounts. Special rules deal withincifieraioti at sea of such substances, which activityis alowed subject to the issuance of a special permit.A special permit is also required to dump or otherwisedispose of at sea tiie substances listed in Annex II(the "grey isf). All other substances may be dumpedonce a general permit is obtained.

Annex ttl lists a set of criteria which should be consid-ered by the national corrtroling authority when issuing

The 1974 Art is less detailed In its provisions than thecofweotiofi to which it gives effect. It prohibits dump-

sation for Damage in Connec-tion with the Carriage of Haz-ardous and Noxious Sub-stances by Sea) which, if itwere to come into force, mightgo some of the way to introduc-ing such a scheme.

David McKellar

NB: This artick formed part of a presentation made to theWater and Maritime sub-committee of HKELA in August1994. Since that date the provisions of the 1974 Act havebeen localised by the Dumping at Sea Ordinance 1995.

ENVIRONMENTAL LAWDIGEST

March 1995 to June 1995

^ The Air Pollution Control (Vehicle De-sign Standards) (Emission) (Amend-

ment) Regulation 1995 (LN 37of 1995) (Commence-ment) Notice 1995 [LN113/95] brings the amendingregulation (see (1995) 2 HKELA Newsletter 10), ex-cepts14(c), into effect on IstApril 1995. Section 14(c),dealing with the amended Japanese Ministry of Trans-

HKELA Newsletter Volume 2,2port design standards for compression ignition privatecars and taxis registered on or after 1st January 1992,does not come into effect until the later date of 1stOctober 1995.

Waste The Dumping At Sea Ordinance [18of 1995], will replace the existing

Dumping at Sea Act 1974 (Overseas Territories) Or-der 1975. Its main provisions allow for the designationof marine dumping areas, the issue of permits for dump-ing at sea and the control of other marine pollution bythe use of abatement notices. By the Dumping at SeaOrdinance (18 of 1995) (Commencement) Notice1995 [LN130/95] the Ordinance excluding Part Vcameinto operation on 1st April 1995. There is as yet nodate for the inception of Part V, the part which dealswith marine pollution control.

Waste Disposal (Charges for Disposal of Waste)Regulation [LN161/95] was gazetted in May andamended by Interpretation and General Clauses Or-dinance - Resolution of the Legislative Council [LN265/95]. It is a short piece of legislation made under s33of the Waste Disposal Ordinance which allows theDirector of the EPD to charge for waste tipped at anylandfill site, with the absolute exception of the munici-pal councils. Additionally, conditional exemption maybe available for dumpers of household waste. Charges

according to either the weight of thewaste dumped (s2(1) and schedule 1) or the grossweight of vehicles which have the requisite "label"(s2(6) and schedule 2). The proposed charges underschedule 1 are $43 per tonne or part thereof, or foreach load for which it would either be impracticable orcause public health problems to assess the weight of:and between $86 and $688 for vehicles in the rangeof 5.5 to 24 tonnes under schedule 2. The date onwhich the regulations are to come into effect is to beannounced.

The Sewa9e Services Ordinance(1Q5 of 1994) (Commencement)

Notice 1995 [LN115/95] brought the principal Ordi-nance, except s3(5) allowing for increases in the de-posit payable by consumers, into effect on 1st April1995,

Those trades which qualify for a reduction in sewagecharges as listed in the schedule to the Sewage Serv-ices (Sewage Charge) Regulation (ie. bleaching anddyeing, drinks manufacturers and restaurants), willreceive a 30% discount (previously it was only 20%)from a day as yet to be appointed under the SewageServices (Sewage Charge) (Amendment) Regula-tion 1995 [LN 143/95].

The Marine Parks Ordinance [37 of 1995], providingfor the creation and management of marine parks andmarine reserves, came into effect on 1st June 1995

Recent amendments have been made to Annex II ofthe International Convention for the Prevention of Pol-lution from Ships; 1973/78 ("MARPOL"), the techni-cal annex dealing with pollution by noxious liquid sub-stances. These have resulted in the Merchant Ship-ping (BCH Code) (Amendment) Regulation 1995[LN184/95], the Merchant Shipping (IBC Code)(Amendment) Regulation 1995 [LN 185/95], and theMerchant Shipping (Control of Pollution by Nox-ious Liquid Substances in Bulk) (Amendment)Regulation 1995 [LN186/95]. Each of these amend-ing regulations brings into effect in Hong Kong theMARPOL amendments and introduce the most recenteditions of the Code and the International Code forthe Construction and Equipment of Ships CarryingDangerous Chemicals in Bulk (respectively the "BCH"and "IBC" Codes dealing with chemical tankers builtbefore and after July 1986). These Codes are issuedby the Marine Environment Protection Committee ofthe International Maritime Organisation.

The United Kingdom declared optional Annex III ofMARPOL (Regulations for the Prevention of Pollu-tion by Harmful Substances Carried by Sea in Pack-aged Forms), as amended, extended to Hong Kongeffective from 7th March 1 995. The relevant local regu-lations giving effect to this are noted in (1994) 1.3HKELA Newsletter 10. Of the remaining two optionalannexes to MARPOL (Annex IV (Prevention of Pollu-tion by Sewage from Ships) and Annex V (Preventionof Pollution by Garbage from Ships)), the United King-dom has ratified only Annex V, although this has notyet been extended to Hong Kong,

The cost of a certificate of insurance issued in HongKong under the International Convention on Civil Li-ability for Oil Pollution Damage ("CLC") is set to riseto HK$535 as a result of the Merchant Shipping (Li-ability and Compensation for Oil Pollution) (Com-pulsory Insurance) (Amendment) Regulation 1995[LN273/95J.

The Building (Energy Efficiency)Regulation ILN144/95], made under

s38 of the Buildings Ordinance, imposes requirementsrelating to the energy efficiency of commercial build-ings and hotels. From 21st July 1995 such buildingsshould be constructed to a suitable overall thermaltransfer value, and plans submitted to the BuildingAuthority should contain certain information relatingto the energy efficiency of the proposed building.

The Nuclear Material (Liability for Carriage} Ordi-nance [45 of 1995] (see (1995) 2 HKELA Newsletter11) came into effect on 16th June 1995,

As the third part of a framework agreement signed inMarch 1995, a co-operation agreement in the field ofinternational environmental law has been signed be-

Volume 2.2mmmummmmmmmm^m^^^^

tween the United Nations Environment Programme andthe World Conservation Union.

David McKellar

Sub-committee Reports

PRCT^his report will introduce some recent developmentsJL in China's international environmental law. The

subcommittee again would like to thank ProfessorWang Xi of the Research Institute of EnvironmentalLaw for his assistance in compiling the information.

In response to the international environmental obliga-tions adopted by United Nations Conference on Envi-ronment and Development held in Brazil in 1992, Chinahas published two important policy documents in re-sponse to the international agreements known asAgenda 21 and the Convention on Biological Diver-sity.

(a) The Agenda 21 of China

This issuance of "Agenda 21 of China - the White Bookof China on Population, Environment and Developmentm the 21stcil on 25 March is the most important internationalenvironmental legal work published by China in 1994.The Agenda is a comprehensive and operational stra-tegic plan which intends to provide medium and longterm guidance for the China's development.

The Agenda illustrates China's commitment to sustain-able development. Sustainable development is rec-ognized as integral to the current reform of the Chi-nese system. According to the report, the strategy ofsustainable development includes three parts: a sus-tainable economy, a sustainable society and sustain-able natural resources.

Agenda 21 of China recognized that economic devel-opment is the principal national priority and that thestale must enoowage an appropriately high rate ofeconomic growth in order to eliminate poverty and meetthe basic material and cultural needs of the people.The iep@rf asserts that a rate of 8-9% annual GNP

for fie remaining years of the 20th centurybe acceptable. Agenda 21 of China acknowl-

edges that only through tie continued implementationof the present economic reform, mil a gradual transi-tion to a pdcy of sustainable development be possi-ble,

Aecofdwg to the Agenda, sustainable social develop-ment fequtes the state to carry out a number of publicwdfare potties* These policies include populationgrowth control and population quafity improvement,

equitable distribution of social wealth, continuation ofChina's moral and cultural tradition, the reinforcementof public security, the development of education andprofessional training, as well as the improvement ofgeneral welfare conditions such as housing and medi-cal care.

Finally the Agenda stresses the importance of the sus-tainable utilization of natural resources. The Agendasets forth four general goals to be achieved by theyear 2000 ; the reduction of and control of environ-mental pollution; the enforcement of appropriate envi-ronmental quality objectives in the major cities; thereversal of the tendency to accept ecological deterio-ration; and the gradual harmonization of economic,social and environmental development.

The Agenda highlights five principles which must bepart of any international cooperation regarding sus-tainable development. They include : (1) the right ofall states to participate equally; (2) the importance ofnational sovereignty when taking into considerationpolicies concerning economic development, environ-mental protection and biological diversity; (3) the de-velopment of an international environmental law whichtakes into account the various geographic, economicand cultural differences between developing and de-veloped countries; (4) the notion of just and differenti-

countries;larger responsibility and duty to global sustainabledevelopment; (5) the support which the internationalcommunity should provide, including capital and tech-nology, to developing countries so as to enhance theircapability of achieving development,

(b) Biodiversity Conservation ActionPlan of PRC .

On 13 June 1994 China promulgated her State Planfor Biodiversity Conservation (BAP), a project whichfulfils some of China's obligations under the Conven-tion on Biological Diversity.

The purpose of China's BAP is to set out how to inte-grate the goals of biodiversity conservation with thesocial and economic development plans of the country. The BAP has three parts : the overall objectivespecific objectives and major actions for biodiversityconservation. The overall objective is to set in placeas soon as possible, measures for avoiding furtheecological damage, and over the long term, to rnitigate or reverse damage already done. BAP specifiesseven specific objectives concerning research, networks of nature reserves, wild species conservationgenetic resource protection, in-sttu conservation, monitoring and coordination. Implementation depends uponlegislation, institutional measures, scientific researchtechnical extension, education, financial support andinternational cooperation.

Page 7 HKELA Newsletter Volume 2.2The preparation of BAP was assisted by some inter-national organizations, including the World Bank,United Nations Development Programme (UNDP) andthe Global Environmental Facility.

Bryan Bachner

Waste, Water and MaritimeQ ince the last issue of the newsletter, the sub-com-^mittee has held one event, at which member BrendaShaw gave a presentation, to a well attended meet-ing, entitled Human Health Risk Assessment Associ-ated with the Consumption of Seafood in Hong Kong.The talk was based on research recently compiled byBrenda while doing the MSc. programme in Environ-mental Management at the University of Hong Kong.The sub-committee intends soon to hold a compara-tive discussion on the subject of ElAs, and possibly tovisit one of Hong Kong's new landfill sites,

David McKellar

Constitution of the HKELA

Tt seems appropriate as the new Executive Commit-Jb^sfettefe Into place to republJsh the Objectives ofour Association (Article 3 of the constitution), to re-mind members of what it is we are trying to achieve:

ObjectsThe objects of the Association shall be:

(a) for the benefit of the public generally, to promoteand increase awareness of environmental law issuesin Hong Kong;

(b) to identify, review and comment on issues of en-vironmental law and its application;

(c) to encourage collaboration between all those in-terested and concerned with environmental law;

(d) to collate and disseminate information relating toenvironmental law;

(e) to organise meetings and seminars on issues ofenvironmental law;

(f) to publish newsletters, pamphlets, reports, leaf-lets, talks and journals on issues of environmental law;

(g) to establish working parties to examine specialinterests and issues of environmental law;

(h) to prepare working papers for discussion and toformulate responses to environmental legislation andrelated matters;

(i) to initiate or defend legal action as may be rea-sonable necessary and incidental to the achievementof the provisions of this Article and this Constitution.

What the association is not (also from the Constitu-tion):

Association Is Not a Legal Advisor

For the avoidance of doubt it is expressly stated thatnothing herein shall compel, require, permit or be con-strued to mean that the Association when acting inaccordance with Article 3 and this Constitution hasentered into the relationship of legal adviser and cli-ent with any person or any member.

Sub-committees of HKELAHKELA Newsletter (contact Ian Dubin, Tel 28351129, Fax 2591 0558)

Water/Maritime (contact David McKellar, Tel 25264202, Fax 28105994)

Noise and Air (contact Andrew Aglionby, Tel 28461888, Fax 2845 2476)

Waste (contact Rona Westgate, Tel 2810 4770, Fax2537 1907)

PRC (contact Bryan Bachner, Tel 2788 7677, Fax2788 7530)

Editorial sub-committee

Ian DubinMarc Smith-EvansMary Au YeungEdwin ChanDavid McKellarStephen BirkettJames Pearson

Fax2591 0558254626592810470828451559281059942525 28862723 5660

Phone2835 11292835 12592801 02292848236625264202252608082722 9734

Contributions are welcomed for the next issue, theclosing date for these is 21 September.

Published by the Hong Kong Ikwirame^al I^w A^ConsultaEts in EnviroiaiiietM Science LH Rocwt 1201, Tai YanBuilding,

Chairperson Bryan Bacteer,

letter. We do not ask for reproduction or copyri^it fees, but askt3bat Hong Kong EnvtaMmftf Lwknowledge^ as the source of the information, and that a copy ofthe material in wMch the infonnation is usedis seat to us. Contri-butions are welcomed. TtecriftouiSifc-CQ^^reserve the right to edit correspondeBce,

without lability cmAssociation. Statements and opinions expressed in this newslet-ter do not necessaril) reflect the views of the Association. • ft

IS Pf®OT>QH KeCYOH>BAWfl O

Hong Kong Environmental Law Association Individual Membership Application

Personal details (Please use block letters)

Passport/HK ID card No: _ Nationality: _

Name: _ Occupation: _ .

Home address: _ _______ _

Qualifications: _ Telephone No: _

Company name: _ ______________________ _

Company address: _ _______ _ .

Telephone No: _ FAX No: _

Please mark preferred address for correspondence Home Q] Company Q (Tick Box)

: Full D Student [^Membership fee (Full $300 Student $100) plus joining fee $100,Ctecponte metobodup is available, with the right to nominate 5 persons. Details available from the secretary.Please sign and return this form together with a cheque for the total amount made payable to the Hong Kong

Law Association c/o Mary Gibb, Consultants in Environmental Science Ltd, Room 1201, Tai Yau181 Johnson Road, Wanchai, FAX 2891 0305. (Cheques only please).

HK$

I Deehratte: If accepted by the Executive Committee of the Hong Kong Environmental Law Association (HKELA)I m a imsttteof the HKELA I agree to abide by its Constitution, to promote the objects of the HKELA to the best of

my ability and to pay the annual subscription (at a rate to be determined annually by the Executive Committee) by itsdue date each year.

Please photocopy this form.

HONG KONG

ENVIRONMENTALLAW ASSOCIATION Newsletter

Winter 1995 Volume 2.3

NewsHKELA Annual Dinner

The Second HKELA Annual Dinner will be held on 26April, 1996. We are very pleased to announce that theHonourable Christine Loh has agreed to be our guest

Speaker One of our student members, Miss JessicaSutton at CUPEM will be co-ordinating the arrangements,(Professor Hills has kindly agreed to loan her to us for thisduty) Further details wilt be sent in due course

Environmental Audit Course

The next HK Productivity Council Environmental Auditorcourse will be held in January and once again, TernMottershead will be speaking In anticipation of HKELA

being allowed another free place on the course, as a resultof Tern's participation, two members have expressedinterest in attending and submitted CVs. The executivecommittee has nominated Margaret Fidow, our honoraryauditor to attend the course Anyone wishing to beconsidered for a future course, if the opportunity arisesagain, should send CV details to the Executive Committee

HKELA Co-ordinator

DIavid McKellar has taken over as the HKELA co-ordinator He will be responsible for the followingtasks *

organizing, updating, and maintaining membershiplists, including sending out membership cards,prompting members for renewals, maintaining themailing list for the Association Newsletter, and carryingout other membership administration duties;

• coordinating events sponsored byHKELA, including speeches, seminars,conferences, social events, the AnnualGeneral Meeting, and elections. Thismay include liaising with outsideconference organizers;

• handling membership enquines;• attending Executive Committee

Meetings (held monthly) and liaising withthe Executive Committee,

• assisting the Newsletter editor by liaisingwith contributors (individuals andcompanies),

• when required, assisting with productionof a HKELA brochure, assisting withproduction of publications, andperforming other tasks as required bythe Executive Committee.

The anticipated time requirement is about 4 hours perweek The executive committee agreed that the co-ordinator should have access to a PC with multi-faxcapability, to facilitate communication with members.HKELA will provide the necessary equipment

Mission Statement1 I ^he executive committee has been working on a missionJL statement for HKELA. After considerable discussion we

have arrived at the following draft:

The aim of the Hong Kong Environmental Law Association(HKELA) is to promote the development of environmentallaw and awareness of it among members and the HongKong community at large. HKELA is committed to the ideathat in order to establish a rational environmental legalsystem, the concept of sustainable development must beapplied appropriately to conservation and pollution control.Sustainable development means that (1) all human beingshave the fundamental right to an environment adequate forhealth and well being, (2) the state should ensure that theenvironment and natural resources are conserved and usedfor the benefit of all persons in present and futuregenerations, (3) the state should maintain ecosystems andrelated ecological processes essential for the functioning ofearth in all its diversity. HKELA endeavours to achievethese goals by seeking to improve Hong Kong's system ofstate environmental policy, corporate and individualawareness of Environmental Law and associatedenvironmental management

We should very much like to have members comments onthis proposal. We think there is a need to question wfietherthe Statement is too "green", and whether HKELA wishes tobe seen as a pressure group or as a legal 'learned society*.Should we just be informing, debating, and raising theissues?

INSIDE

2 EMtorwl

\ 3

4

6 Environmental Law Digest: ]uwto>

Book Review

HKELA Newsletter 'Volume 2.3

EditorialContaminated Land

Iam very pleased to see that our first scheduledseminar through Pearson Professional will deal

with contaminated land issues. This may not at firstglance seem to be of particular interest in HongKong, after all, we don't have a 'Love Canalr here.However, it seems to me that the subject is of poten-tially great significance, as it has been throughoutmuch of the rest of the world.

Hong Kong depends to a large extent on redevelop-ment of obsolete land uses to fulfill a large part of thedemand for new development sites. It would beimprudent of me to attempt to list all of the largehousing developments (and other sensitive receivers)that have been erected on what were formerly indus-trial sites, mainly because I would not want to implythe possibility that some of these sites could harbourpotentially harmful residues of their former land uses.That possibility must be assumed to exist however,and we would certainly be imprudent if we pretendedit didn't

Therefore I welcome our contaminated land seminar.Even if I don't have a decent example of such a site,it seems to me to be very important that all practition-ers, technical and/or legal, should be aware of thelatest developments in the field. I was a Boy Scoutonce, a long time ago. Their motto still strikes me asappropriate.

Ian Dubin

Vehicle Emissionsr I \e Government has recently recommended aJL course of action to address the problem of air

pollution from Hong Kong's ever increasingfleet of diesel vehicles. LegCo has rejected theseim>jnmendations, on the grounds that it is not thebest solution to the problem- Members of LegCo,scientists and technologists also disagree as to whatthe light answer Is* and I don*t know eititer. What Icto knew is that 1tee are several partial solutionseadb wiA ffigjr own merit What is being ignored,wiiile the debate continues* is that the ak quality

tevel mn&ks imacceptafole for thousan<fe ofresiciesis. Even iff the Oovefimiefif s proposals aretiot the fell g&iHtiof!, the pr0grann$e to put tteit i

and is ready mow. Impfenmttog the

tern soixitkn&

American Chamber of Commerce

The following statement was put out by the AmericanChamber of Commerce; *

Sustainable Development is: development orprogress that "meets the needs of the present without !compromising the ability of future generations to met theirown needs". (The Bruntland definition) |

Environmental protection through sustainabledevelopment has become the policy of many businessesin other countries. Sustainable development can beachieved by establishing policies, programmes andpractices for conducting business operations in anenvironmentally sound manner. These policies are thenintegrated fully into each business as an essential elementof its functions.

Hong Kong, however, has arguably been lagging behind inthe pursuit of sustainable development. An opportunity isnow made available for you to voice your concern and topledge your support to the betterment of Hong Kong'senvironment. The Chamber is being consulted by thegovernment on areas of government policy which we, asbusinessmen, would like government to address under thecontext of sustainable development. Your views onpriority areas which you feel, are important to asustainable development strategy for Hong Kong areneeded.

AmCham has sought its members views: in point form,ranking areas which you think are important to setting asustainable program, i.e. 1, Air & Noise Pollution 2 EnergyEfficiency, 3. Water Quality,...

Do HKELA members have any comments? We shall lookforward to presenting the AmCham Results in a laterissue.

Financial ReportJames Pearson reported on finances to the executivecommittee meeting in October. An interest-bearingsavings account has been opened for HKELA funds. TheAssociation's balance at that time was $81,886.

HPhe Secretary, Mary Gibbs, has been added as co-A. signatory for the savings account. James, as

Treasurer, can transfer funds from savings tochecking accounts with a single signature, but all otherdebit transactions require two signatures. Valid signaturesare currently those of Martin David, James Pearson,Andrew Aglionby, and Mary Gibbs.

Internet - Web Site\ iast few issues of the HKELA Newsletter have

JL been forwarded to Huge Net to provide information forthem to do a 'mock-up' Web Site for HKELA., this is

now a reality. The address is: http://www.comstar.com.hk/envlro/Jaw/ Your comments on the mock-up would bewelcome.

Pearson Professional Conference

Julia Deans of Tory Tory DesLauriers and Binningtonhas offered to assist in running our first conference withPearson Professional. She will be coordinating a

seminar on Contaminated Lands, Due Diligence andEnvironmental Audits. The conference will be organizedand co-ordinated by Pearson Professional. HKELAmembers will be entitled to a discount. Tentative date:

HKELA Newsletter Volume 2.3March 12, 1996

Other proposed future conference topics include:• Hong Kong Waste Management, Liabilities and

Practicalities (joint seminar with the Hong KongWaste Management Association)

• ElAs and ISO 14000 (legal aspects).

• The El A Ordinance

Terri Mottershead and James Pearson are working withPearsons and Julia to organize speakers on these andother topics.

The EIA OrdinanceA draft Bill to establish a legal requirement to undertake

•^^Environmental Impact Assessment and to implementthe recommendations was presented to the Governor'sAdvisory Council on the Environment recently. The Bill isexpected to be introduced to LegCo sometime in early1996. Terri Mottershead has volunteered to chair aspecial HKELA Working Group to review the draft Bill. Wehave also been approached by several of the greengroups about the possibility of a joint submission toGovernment on the EIA Bill.

Members wishing to participate in Terrfs Special WorkingGroup are asked to contact her directly at (Fax) 25593543.

There will be a working groupmeeting in conjunction withrepresentatives of Friends ofthe Earth and the MarineConservation Society on Friday5th January at 1815 Hours atLovell White Durrani's Offices11 F Lippo Centre. DavidMcKellar has details on 2859 7052 or 2859 2951 Copiesof the draft legislation can be obtained through bypayment of HK $35 to the University of Hong Kong tocover postage and copying.

Hong Kong:

A Sustainable City?

The notion of sustainable development has come tothe forefront of ecological policy analysis over the lasttwenty years. The concept in some ways attempts to

mediate the tensions implicit in the debate concerning themerits of economic development and environmentalprotection. Since the 1972 United Nation's Conferenceon the Human Environment and Development held in Riode Janeiro, policy makers have begun to incorporatesustainable development into international, national andlocal economic policies. As one of the most dynamiceconomies in the world with considerable environmentalconcerns, Hong Kong must seriously consider to whatextent sustainable development is a viable policy. In thisshort paper I would like to introduce what sustainabledevelopment means in an urban concept and thenexamine, to a certain extent, the impact of the concept onHong Kong.

An interesting book entitled Sustainable Cities by GrahamHaughton and Colin Hunter, examines how sustainabledevelopment policy may usefully be incorporated into urbanpolicy. They argue that environmental protection should notbe adopted simply for the sake of environmental protection;they realize that cities have necessary economic functionsthat cannot be marginalized without causing undue harm tothe community. In this light, the authors attempt to set outa common ground where economic growth andenvironmental protection may evolve simultaneously. Theyappreciate that some pollution is a necessary evil of urbaneconomic growth and suggest that it would be unrealistic tohave cities internalize the costs of its environmentalimpacts, especially in light of the global forces which affectsocial and economic change.

In order to solve the problem, however, they do claim thatthe cities must to some extent come to terms with the costsof the environmental deterioration. They claim that thisprocess need not be radically destructive of urbaneconomic growth. They appreciate that the city is animportant economic marketplace where the exchange ofmaterials, products, services, people and ideas contributesto the very existence of the city. Accounting for the issuesof environmental protection need not bankrupt this work;indeed they suggest optimistically that the policy ofsustainable development is not meant to negate the— . _ - -.- - - function of the marketplace,

but is intended to adapt to itcreatively. They concludethat:

"The aim of the Hong Kong Environ-mental Law Association (HKELA) is toopromote environmental legal aware- |ness to its members and the HongKong community at large."

A sustainable city is one inwhich its people andbusinesses continuouslyendeavour to improve theirnatural, built, and culturalenvironments at

neighbourhood and regional levels, whilst working in wayswhich always support the goal of global sustainabledevelopment

International law has promoted the concept of theadaptation of sustainable development in the cities.Agenda 21 an important report from the 1992 UnitedNations conference, made the following recommendationwith regard to urban Sustainability. They proposed:

• institutionalizing a participatory approach to sustainableurban development, based on a continuous dialoguebetween all actors, especially women and indigenouspeople;

• promoting social organization and environmentalawareness through community participation inidentifying and meeting collective needs, such asinfrastructure provision, enhanced public amenities andrestoring the fabric of the built environment; (Greenworks' programmes should provide formal and Informalemployment lor low-Income urban residents.)

• strengthening the capacity of local governing bodies todeal with environmental challenges, especially throughcomprehensive planning which recognizes the individualneeds of cities; promoting ecologically sound urbandesign practices;

• participating in international 'sustainable city networks1;

• promoting environmental sound and culturally sensitivetourism;

• establishing mechanisms to mobilize resources for localinitiatives to improve environmental quality; and

HKELA Newsletter• empowering community groups, non-governmental

organizations and individuals to manage and enhancetheir immediate environment through participatoryapproaches.

The authors of the book then set out a useful manifesto onurban sustainable development that bears repeating in fullalso. They write that the sustainable city

• is developed to respect and make the most of naturalenvironmental assets, to conserve resource use and tominimize impacts on the local and wilder naturalenvironment;

• is a regional and global city: no matter how small or howlarge, its responsibilities stretch beyond the cityboundaries;

• involves broadly based, participatory programme ofradical change, where individuals are encouraged totake on more responsibility for the ways in which theircities are run;

• requires that environmental assets and impacts bedistributed more equitably than at present;

• is a learning city, a sharing city, an internationallynetworked city;

• is not rooted in an idealized version of the pastsettlements, nor is it one given to a radical casting offfrom its own particular cultural, economic and physicalidentity in the name of the latest passing fad forwholesale urban change;

• will seek to conserve, enhance and promote its assetsin terms of natural, built and cultural environment; and

« presents tremendous opportunities for enhancingenvironmental quality at /oca/, regional and globalscales.

To be fair Hong Kong has always taken an extremelycautious approach to any policy that it perceives wouldadversely effect its own economic growth. The policy of"passive non-interventionism" encapsulates the notion thatthe government should not interfere with the operation ofbusiness in the territory, implying that business knows whatis best for business. The problem with this approach is thatsometimes the operation of business does impact upon thecommunity in less than beneficial ways, such as pollutionand often, for understandable reasons involving expense'business is not willing to do anything about it. For instancewhat is the incentive for a factory to adopt environmentaltechnology to ensure that effluent being dumped into awaterway is first filtered and cleaned: there is none In thecase where the interests of the community are beinginjured, it is necessary for someone to protect theirinterests. More often than not the community or group thatis injured by pollution does not have the money to pay forlegal protection and therefore the Government has aresponsibility to step in and try to sort out the problem.

In recent years the Hong Kong Government has taken amore acbve role in trying to come to terms with the pollutionproblems which beset the Hong Kong community. Inparticular, it should be noted that the Government hasbegan to look to the concept of sustainable development asa viable policy to improve the situation. From my initialinvestigations there ,s extremely little written abou theconcept and its relation to Hong Kong; I think that it is fair tosay that it is still early days with regard tTho^development may best be utilized in the territory TheGovernment, nevertheless, should be given credit forinitiating to chteto in the second review of the w£Paper entitled "A Green Challenge for the Community^

which states that sustainable development is a foundationstone upon which to build a cleaner and healthier HongKong. According to the Government sustainabledevelopment is defined as development or progress thatmeets the needs of the present without compromising theability to future generations to meet their own needs. TheGovernment states that the community has theresponsibility to review objectively all their developmentprogrammes to make sure that they are in agreement withthe principle of sustainable development. TheGovernment soberly concludes that whether thecommunity is prepared to sacrifice an element of materialprosperity for the sake of sustainable development isperhaps the key challenge we must face before we enterthe twenty-first century.

To what extent will a full and rational approach tosustainable development be adopted in the territory? Towhat extent should sustainable development beincorporated in our unique economic and culturalenvironment? Answering these questions and others areessential toward the development of sensible way ofunderstanding the meaning of sustainable deveiopmentfor Hong Kong. At the outset it should be realized thatthere are not easy answers to these questions. In my nextcontribution, 1 hope to be able to examine howenvironmental impact assessment law may have usefulimplications for the achievement of sustainabledevelopment.

Bryan Bachner

Sub-committee Reports

PRC Update

People's Republic of China

Professor Jin Ruilin, Professor of Environmental Law atPeking University, presented a paper entitled"Environmental Tort and Civil Remedies: Problems in

Environmental Legislation" to a conference co-sponsoredby the Centre of Chinese and Comparative Law of theFaculty of Law at the City University of Hong Kong and theDepartment of Law of the Peking University in midOctober. Another member of the HKELA, Professor LinFeng of the City University of Hong Kong offered his viewson the new air pollution control law in the People'sRepublic of China. Members interested in a copy of thepaper by Lin Feng may contact him at 2788-7440. In thepaper Professor Jin discusses a variety of nationalapproaches to environmental torts and evaluates themainland approach to the problem.

Professor Jin relates that provisions on environmental tortand civil remedies are contained in the General Principlesof Civil Law, the Environmental Protection Law and otherseparate law on prevention of marine, air and waterpollution. He asserts that the legislation stipulates certainprovisions on the issues of attribution, exemption clausesand forms of remedies. He suggests, however, that thelegislation is not complete as it lacks coherence by oftenrepeating the provisions contained in other legislation andoften times is just plain contradictory.

For example he argues that in the Chapter on Civil Liabilityof the General Principles of the Civil Law, Article 106

HKELA Newsletter Volume 2.3provides for liability without fault. Article 124, however,provides for civil liability in the case of environmentalpollution, but the prerequisite for this civil liability isinfringement of the relevant provisions on environmentalprotection and pollution prevention of the country. Hepoints out that this has been interpreted to mean that "thecivil liability arising from an infringement of environmentpollution is only applied when the relevant provisions onenvironmental protection and pollution prevention of thecountry are infringed. That is to say, the responsible partywill only be liable if the discharges of pollutants exceed thedischarging standards of the country." Professor Jinargues that this stipulation and interpretation is flawed andinconsistent with the reality of environmental protection inthe People's Republic of China. He proposes that greaterdetail ought be provided in the specific laws and thereshould be more careful drafting and less contradictorystatements. This is one way that China may take a moreeffective step toward improving environmental protection.

Bryan Bachner

Waste, Water and Maritime

Since the last report, the sub-committee has met onseveral occasions. In August Richard Ferns, ChinaCounsel with the Centre for International

Environmental Law and Beveridge and DiamondAttorneys in Washington, USA gave a very informativetalk on the very recent developments in environmentallaw in China with particular regard to the new water andenvironmental impact assessment laws which wereliterally hot off the press (he having just been in Beijinghelping to draft them!). Richard will be back some timeearly next year and has promised to share his insight withus once again. In November, Shaun Waddellga\/e a shorttalk on the Marine Conservation Society, the recentUKMCS conference, and some of MCS's plans for thefuture.

Hong Kong Red TidesAt the HKELA meeting of 14 December, ProfessorDickman of UHK Dept. of Ecology and Biodiversity statedthat there were now three rather than two concerns withred tide toxic organisms. He noted that in the past therehas been a good bit of publicity about the PSP or paralyticshellfish poison which is produced by a single celled algacalled a dinoflagellate. PSP results in a sensation ofnumbness in your lips and tongue soon after consumingshellfish with this toxic dinoflagellate inside them. Insevere cases, paralysis of the diaphragm can result inrespiratory failure and death. Dinoflagellate species werealso implicated in DSP (diarrhoeaic shell fish poisoning).DSP-like compounds can also be produced by somestrains of bacteria. In severe cases, dehydration from theDSP diarrhoea has been fatal.

The speaker stated that a third type of toxin has recentlybeen discovered in red tides -ASP, Amnesic shellfishpoison. This toxin is produced by a diatom rather than adinoflagellate. A diatom is a single celled plant with a cellwall that is made of glass rather than cellulose. A fewspecies of these diatoms produce a powerful toxin, knownas domoic acid which results in the destruction of braintissue associated with short term memory. If you forgetwhere you put your car keys after your next shellfish meal,don't blame yourself, maybe it was the domoic acid.

Dr. Dickman also had a good news story from his

Environment and Conservation Fund sponsored study ofheavy metals in Hong Kong fish. He said that our fish werenot contaminated with heavy metals at levels in excess ofthose recommended by the HK Health Department.Brenda Shaw, a previous HKELA speaker was quick topoint out that the HK health department has adoptedguidelines for heavy metal consumption based onstandards developed outside of Asia where fish are not sofrequently consumed as in HK and where people generallyweigh more than they do in HK. She suggested that a studybe undertaken to see if HK standards based on thesenon-Asian developed guidelines are too lax to protect thehealth of individuals consuming fish and/or shellfish inAsia. After a lively discussion about some of the deformedfish that were discovered in Hong Kong near Sandy Baythe audience thanked Dr. Dickman for his presentation.

For copies of the legislation which Richard Ferris broughtwith him, or further details on Mike Dickman's talk or thesub-committee, please contact David McKellar (Tel: 28592951, fax: 2559 3543).

Library acquisition

The Association has received a copy of a recent Centrefor International Environmental Law publication writtenfor the United Nations Environment Programme

entitled The Use of Trade Measures in Select MultilateralEnvironmental Agreements'. Further copies are availablefrom the Centre: 1621 Connecticut Avenue, NW, Suite200, Washington, DC 20009-1076, USA (Tel: (202) 332-4840, fax: (202) 332-4865.

Forthcoming Events

You will have seen notices of our upcoming seminarseries as well as the planned annual dinner. Otherevents come to the attention of the committee from

time to time, but unfortunately, in most cases the frequency(or lack thereof) of the newsletter makes it a waste of timeto advertise these events. Hopefully this will change withthe appointment of David McKellar to the co-ordinator'sjob. Once we have multi-fax capability it should be possibleto inform all members of talks and events of interest in timefor them to actually attend!

Conference Announcement

In March 1996, the territory will host an Asian RegionalWorkshop on "Planning for Workable and EffectiveEnvironmental Law" which will bring together an invited

group of people from East and South East Asia withhands-on involvement in environmental protection(especially law drafting and enforcement) from a number ofperspectives: governmental policy making, regulatoryagencies, judicial, legal practice and nori-governmentaJorganisations.

The goals of the workshop are to build local environmentallaw implementation capacity, and hence reliability, and toenhance transparency and accessibility of environmentallegislation in the region. The event is co-sponsored by theOffice of Christine Loh, the Faculty of Law and Centre ofUrban Planning and Environmental Management at HKUniversity and the Centre for International EnvironmentalLaw.

Environmental LawDigest

June to November 1995

r r C?/Cx/ A further part of Victoria Harbour has beendeclared a water control zone, bringing it

and occupiers of adjacent land within the control of theWater Pollution Control Ordinance. This was done by theWater Pollution Control (Victoria Harbour (PhaseTwo) Water Control Zone) Order [LN355/1995].Gazetted on the same day were the Statement of WaterQuality Objectives (Victoria Harbour (Phase Two)Water Control Zone) [LN357/1995], and the WaterPollution Control (Victoria Harbour (Phase Two)Water Control Zone) (Appointed Days) Order[LN356/1995] which states that existing discharges will befixed on 1st September 1995 (under s7(2) of the WPCO);after this date new discharges will require a licence.Existing discharges will require to be licensed from 1stApril 1996.

Also gazetted was the Water Pollution Control(General) (Amendment) Regulation 1995*[LN431/1995] which seeks to increase the fees payableunder the Ordinance.

Similarly, the Dumping at Sea (Fees) Regulation*[LN434/1995] seeks to increase the fees payable fordumping permits and copies of entries in the dumpingregister and repeals the old Determination of LicenceFees which set the levels of fees under the extendedDumping at Sea Act.

The Legislative Council voted to appropriate certainassets controlled by the Director of Sewage Services tothe Sewage Services Trading Fund which wasestablished earlier this year. This is noted in TradingFunds Ordinance: Resolution of the LegislativeCouncil: Sewage Services Trading Fund[LN363/1995].

The Merchant Shipping (Prevention and Control ofPollution) (Charges for Discharge of Polluting Waste)Regulation* [LN320/1995] introduces the fees which willbe payable to the Director of Marine Services for the useof the Chemical Waste Treatment Centre at Tsing YL Thecharges relate to the collection and disposal of oil, sludgeand noxious liquid substances. These regulations were tohave come into force on 1st August 1995 - MerchantShipping (Prevention and Control of Pollution)(Charges for Discharge of Polluting Waste)Regulation (LN320/1995) (Commencement) Notice1995 [LN352/1995}.

The Waste Disposal Ordinance (Amendment ofSchedules) Notice 1995 [LN326/1995] rectified errorswhich were apparently made with reference to maps oflivestock waste prohibition, control and restriction areas inschedules of the WDO. Other errors made in referencesto maps were amended by the Public Health (Animalsand Birds) (Licensing of Livestock Keeping)

(Amendment) Regulation 1995 [LN325/1995].

Chemical waste producers and waste collection ordisposal licencees will have to pay more from ,9thNovember: see the Waste Disposal (Chemical Waste)(General) (Amendment) Regulation 1995*[LN430/1995] and Waste Disposal (Forms and Feesfor Licences) (Amendment) Regulation 1995* [LN429/1995].

The Chinese forms in both the English and Chinese textsof the Waste Disposal (Appeal Board) Regulation andWaste Disposal (Forms and Fees for Licences)Regulation are now in harmony thanks to the OfficialLanguages (Alteration of Text) (Waste DisposalOrdinance) Order 1995 [LN471 71995] and the OfficialLanguages (Authentic Chinese Text) (Waste DisposalOrdinance) Order [LN(C)82/1995].

A -j-p* More increases of registration and licence fees•*1 ** etc.: under APCO by the Air Pollution Control(Specified Processes) (Amendment) Regulation1995* [LN432/1995]; under OLPO by the Ozone LayerProtection (Fees) (Amendment) Regulation 1995* [LN435/1995]; and under RTO re vehicle emission testing bythe Road Traffic Ordinance (Amendment of Schedule)Order 1 995* [LN433/1 995].

for noise emission labels andconstruction noise permits are also set to

rise. The relevant provisions are the Noise Control(Hand Held Percussive Breakers) (Amendment)Regulation 1995* [LN428/1995], the Noise Control (AirCompressors) (Amendment) Regulation 1995*[LN427/1995], and the Noise Control (General)(Amendment) Regulation 1995* [LN426/1995].

Interpretation and General ClausesOrdinance: Resolution of the

Legislative Council: Town Planning Ordinance[LN300/1995] substantially increases the levels of finesfor unauthorized development in the New Territories.Previously the fines for undertaking or continuingdevelopment in either a draft or effective developmentpermission area (under s20(8) and 21(2)) was $100,000.The new maximum fines are $500,000 upon firstconviction and $1 ,000,000 upon second or subsequentconvictions. There is a similar increase in amounts forfailing to comply with an enforcement notice under s23,and also new daily fines of $50,000 and $100,000.

There have been some recent changes to theA&P(PES)O arising out of changes made in theAppendices to the Convention on International Trade inEndangered Species of Wild Fauna and Flora ('CITES').Schedules 1 to 3, listing the protected species werereplaced by the Animals and Plants (Protection ofEndangered Species) Ordinance (Replacement ofSchedules) Notice 1995 [LN341/1995]. The Animalsand Plants (Protection of Endangered Species)(Exemption) (Amendment) Order 1995 [LN340/1 995]enlarged the list of protected species which it is notillegal to possess.

* Passage of these measures has been prevented in theLegislative Council in a clash between legislatorsconcerned about the effect on business of increasedcosts in light of the dampened economy, andgovernment's attempts to raise the fees in line withinflation and implement the user/polluter pays principle.

HKELA Newsletter Volume 2.3

Daya BayThe Association is planning a joint trip, in conjunction withthe HK Waste Management Association, to Daya BayNuclear Facility in China, courtesy of the HK NuclearInvestment Company Ltd.. The proposed date is Saturday23rd March, from 7.30 am to 5 pm (although this date isprovisional and to be confirmed by HKNIC; for this reason,alternative dates of Saturday 17th and 30th March will alsobe suggested). The itinerary will include tours of thevisitors centre, the site and the simulator training centre,and lunch will be provided (although presumably not theiodine tablets!). The cost will be $150 per person; inaddition visas will be required for those persons without ahome entry permit. Please contact David McKellar, c/oFaculty of Law, University of Hong Kong, Pokfulam Road(tei: 2859 2951, fax: 2559 3543) in order to reserve aplace or for further information. Since the numbers ofpersons who can attend is limited, places will be allocatedon a first-come first-served basis.

Book Review

HONG KONG'S WILD PLACES: ANENVIRONMENTAL EXPLORATIONby Edward Stokes (1995, OxfordUniversity Press, Hong Kong.HK$295)A casual browser in a shop might mistake this for acoffee-table book: the photographs are excellent and thereis one on almost every page. They are even artisticallysurrounded by broad white margins. However, there israther too much text for the coffee-table, and it is in small,if very readable, type. There are even foot notes! Soon itdawns on the browser that this is not a book for dippinginto at random -at least, not the first time - but one whichrequires reading from the beginning. At this point, ourbrowser moves on to something less demanding andOxford University Press loses a sale. OUP's loss is ourgain: this is serious a book for those who both know andlove the Hong Kong countryside.

The serious reader gets a very different impression Edseems to have talked with everyone and read everything.No, not just seems to -he has! Talked, listened, read andremembered- and quoted at length in the text. Thisapproach has its dangers: the book could very easily havebeen simply a compilation of facts and opinions. It is this,but it also far more. The book is dense with information butit is also coherent and readable, and the facts you know-and the opinions you hold - are mixed with facts you didnot know and opinions you were unaware of. Almost everypage taught me something new or reminded me ofsomething I had forgotten. The chapters alternate"environmental history" - from the geological past, inlogical sections, up to the present day -with accounts ofdifferent regions of the Hong Kong landscape -startingwith Tai Mo Shan and ending in Mai Po. This works verywell - much better than dividing the book into two parts, asmost people would have done.

As the historical sections approach the present day, the

conservation message comes to dominate, but it isnowhere far below the surface. This is where I -and, nodoubt, Ed Stokes himself - worry about who will read thisbook. It needs to be read, not just looked at, but is it justpreaching to the converted? Will those many people inHong Kong who believe that development must alwayshave priority over conservation or -worse - that there isnothing left worth conserving, read it? It does not help thatHong Kong's Wild Places, like the other recent books onHong Kong's natural environment, is available only inEnglish.

The book ends with an excellent short bibliography,followed by useful notes on hiking and photography. Isuspect, however, that combining Ed's tips on hiking andphotography will not be enough to produce photographslike the ones in this marvellous book!

(This review is 100 % recycled from Porcupine!, thenewsletter of the HKU Department of Ecology &Biodiversity)

Richard Corlett

Sub-committees of HKELAHKELA Newsletter (contact Ian Dubin, Tel 28351129, Fax 2591 0558)

Waste, Water and Maritime (contact DavidMcKeiiar, Tel 2859 2951, Fax 2559 3543)

Noise and Air (contact Andrew Agiionby, Tel 28461888, Fax 2845 2476)

PRO (contact Bryan Bachner, Tel 2788 7677,Fax,2788 7530)

Editorial sub-committee

Ian Dubin

David McKellar

Marc Smith-Evans

Fax

2591 0558

2559 3543

2546 2659

Phone28351129

2859 2951

28351259

Contributions welcome, Deadline forthe next issue is 1 May, 1996

Published by the Hong Kong Environmental Law Association,c/o Mary Gibb} Consultants in Environmental Science Ltd.,Room 1201, Tai Yau Building, 181 Johnson Road, Wanchai.

Chairperson Bryan BachnerWe welcome reproduction of all or part of the contents of thisnewsletter. We do not ask for reproduction or copyright fees, butask that Hong Kong Environmental Law Association HKELA isacknowledged as the source of the information, and that a copy oftthe material in which the information is used is sent to us.Contributions are welcomed. The editorial Sub-committee of theHKELA reserve the right to edit correspondence.

The information given in this newsletter is given in good faith,but without liability on the part of Hong Kong EnvironmentalLaw Association. Statements and opinions expressed in this(newsletter do not necessarily reflect the views of the Associa-

tion.

mum

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