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April 11th, 2011:

Incinerator opponents given fresh hope

South China Morning Post — 11 April 2011

Department may face judicial review over alleged abuse of environmental study process

Opponents of the planned waste incinerator may have been handed crucial ammunition by the discovery of possible irregularities in the way the environmental impact assessment for the project was handled.

Environment advisers say the Environmental Protection Department could face a judicial review over the alleged mishandling, and have raised the possibility of conflict of interest by the department chief.

The issue involves the failure of department director Anissa Wong Sean-yee to spell out clearly how many incinerators the government wanted when she initiated the statutory environmental impact assessment (EIA) process three years ago.

The public was initially consulted on alternative sites at Tsang Tsui in Tuen Mun and on Shek Kwu Chau off Lantau. But when the assessment study report was released it included a third option of building one at both places which had been added later at the department’s request.

It turned out the government had asked the study consultant to look at the third option after the initial public consultation ended in 2008.

Members of the Advisory Council on the Environment have complained privately about what they see as officials’ abuse of the assessment process and intense debate is likely when they meet today to discuss whether to endorse the study report.

Former environment adviser Dr Ng Cho-nam said that while it was not uncommon to enrich an assessment study with additional data, it should not fundamentally alter the original objectives of the study.

“This is a flaw in the EIA process as there is no way the director could avoid conflict of interest if the EPD itself is the project proponent,” he said.

Ng said the director might risk a judicial review over the “improper handling” of the process.

Council members have been told not to talk to the media about their previous discussions of the report.

But one member, speaking anonymously, suggested Wong should delete the additional option.

“It seems the overcooked EIA report should not be endorsed in full,” he said.

Yung Chi-ming, chairman of Cheung Chau Rural Committee, which is leading a campaign to oppose the Shek Kwu Chau option, said they would exhaust all possible means in their fight. “If there is really a case, we will consider the possibility of legal action,” he said.

The Environmental Protection Department insisted the director considered the process in line with the legal requirements.

But in another twist it said the “project proponent” – the department – had consulted the Environmental Impact Assessment Ordinance (EIAO) authority on whether a new study brief was needed to study the “coexistence scenario”.

The authority is Wong herself.

The study consultant concluded that all three options were acceptable but refrained from recommending one that would have the least impact.

It emerged later that the department favoured Shek Kwu Chau on grounds not totally related to the environment, such as tourism potential, even though it meant two more years of building and destruction of marine habitat by reclamation.

Further inquiries to the department found that it could build a 3,000-tonne incinerator on each site and would not need a second impact assessment to do so provided the first study report was backed by the council and approved by the director.

A review of past public documents by the South China Morning Post (SEHK: 0583announcementsnews)showed the department had never stated it intended to build two incinerators.

As the project proponent of the waste incinerator, the department filed a project profile to itself in March 2008, initiating the statutory assessment process for an incinerator with capacity of 3,000 tonnes a day at Tsang Tsui or on Shek Kwu Chau. As required by the law, the public were given two weeks to comment.

In May that year Wong issued her department a study brief outlining the objectives, scope and requirements of the assessment but still did not mention the possibility of two incinerators. An EIA study brief is an important set of parameters that both the director and the council rely on to assess if a study report meets the minimum legal requirements.

In response to inquiries from the Post, a spokeswoman for the department said the director instructed the consultant to study the coexistence scenario in November last year.

This was done after a review of the city’s waste management strategy that was derailed by lawmakers’ repealing in October a chief executive’s order to turn part of Clear Water Bay Country Park into landfill.

“In accordance with requirements of the EIA study brief, the project proponent sought advice from the EIAO authority in October 2010 on the need for a new study brief,” said the spokeswoman, who clarified later that the authority was the director.

“The EIAO authority advised that the requirements of the original study brief could cover the environmental issues to be assessed for the coexistence scenario. A new study brief would not be necessary.”

This was the first public explanation of how the two-incinerator option came into being. But the council and the public were never consulted over the need for the additional study, which raised questions about whether the director had violated the spirit of public participation enshrined in the ordinance.

Some members of the council’s EIA subcommittee also said they were troubled by inclusion of the third option as well as their lack of power to select the incinerator site.

At a meeting on March 18 the members were specifically reminded by officials that they had no power to pick the site of the incinerator and their only option was to support or oppose the whole report. All members were also told not to talk to the media about what was discussed in the closed-door session.

But one member questioned whether it was legal for the coexistence scenario to be endorsed if it was not part of the original study brief.