Fact: The Hong Kong Airport Authority (HKAA) proposed to construct a permanent air fuel farm (the Farm)

for storing aviation fuel, which was next to a steel mill. The steel mill used extremely hot processes and it was concerned about the risk of fuel spillage from the Farm into the mill where a conflagration would be a great to danger life and property. Whereas, an environmental permit for the Farm was required under the Environmental Impact Assessment Ordinance; and the Director of Environmental Protection approved the HKAA's EIA Report under s.8(3) and issued the permit under s.10(3). Thus, Shiu Wing Steel Limited (X) appealed to the CFA for judicial review of the decisions was upheld by both CFI and CA. Issue: When the Director had purported to decide under s.6(3) that the HKAA's EIA report met the requirements of the EIA Study Brief and Technical Memorandum, the EIA report did not contain a Quantitative Risk Assessment regarding to all hazard to life risk scenarios, specifically the EIA report had identified the scenario of a catastrophic failure of the fuel storage tanks with an instantaneous loss of 100% of fuels but did not provide a QRA of such scenario. The Director had previously illustrated to HKAA that the 100% loss scenario was not really possible, so it was only necessary to carry out a QRA for a 10% loss scenario. The appellant argued that the correct assessment of hazard to life under EIA TM and SB ought to be (1) identify relevant hazard scenarios; and (2) quantify risk for all scenarios identified; scenarios to be identified not limited to those that could be predicted or expected for instant project; included those which seemed incredible in relation instant project, which had occurred at other fuel farms. Decision: The CFA reversed the previous judgments that the appeal allowed.

According to the correct meaning of the TM and the SB, the methodology for a QRA on hazard to life was to identify and quantify the risk for all scenarios by reference to that history and the specific features of fuel farm projects. Thus, the scenarios to be identified happened in the past and seemed incredible in relation to the fuel farm project. Hence, identification was not restricted to the "predicted", "expected or anticipated" cases, as well as the "incredible" situations. Subsequently, the incidents occurred by an unknown, unforeseen or unexpected cause ought to be quantified also.1 The EIA report revealed the case of catastrophic instantaneous 100% loss of fuel that the risk of occurrence was extremely low for a given scenario but the loss of human life if it occurred would be very high. Although, both factors affected the assessment, a QRA could not be limited to risks that could be predicted, expected or anticipated and extremely rare risks must be taken into account. Such circumstance with a fatality of 1,000 with a frequency of 1/1,000,000,000 p.a. was unacceptable, but that frequency was not "predicted" or "expected or anticipated".2 Accordingly, the EIA report did not meet the requirements of the TM and SB that it recognized the 100% loss accident, there were actually records of incidents of catastrophic releases from storage vessels, but a QRA was not undertaken. Therefore, the Director had no power to approve the EIA report under s.8(3), and there was no approved EIA report. Unless the decisions were saved by the exercise of a discretion to refuse relief, they must be quashed.3 In the present case, the CFA held that it was exceptional for a court to exercise its discretion not to quash a decision which had been found to be ultra vires and such discretion would not be exercised here. Resultantly, the fuel farm project appeared that further mitigation measures must or ought to be taken to eliminate an unacceptable risk to human life, delay to achieve that end must be
1 2 3

See n.1, para 42-50 See n.1, para 51-54 See n.1, para 66-68

accepted.4 According to Environmental Impact Assessment Ordinance (Cap 499), all designated projects ought to be acquired the permission by submitting the EIA report. The present case best illustrated the correct methodology of the EIA TM and SB, in which not only the predictable scenarios need to be address and quantified in the report, but also the incredible situation ought to be included, assessed and took into account for granting permission. The fundamental purpose of the EIAO is aimed at minimizing and eliminating the hazards and risks brought to the environment by the project, we have to quantify those danger situations and prevent endangering the environment. Thus, EIAO has the significant effect to the realm of protection to environment and precaution to pollution. Additionally, according to the assessment of the EPD, it would be plausibly preserved the environmental resources as the report would recommend not cutting down trees during the project as in the EIA report of West Rail Construction Project. Furthermore, the EIAO also incorporated the Polluter Pays Principle that the polluter who violates the report after the permission granted is liable criminally. Nonetheless, the EIAO has no or only little deterrent effect to the constructor as the prosecutions and penalties are only after the pollutions and damages to the environment; for instant, in the West Rail Construction Project, more than 2000 tress were pulled down after the permission granted to the constructor but the constructor was only prosecuted and liable with fine after the deforestation. The Government has no ability to prevent and stop those damages and pollutions immediately. Besides, another most controversial issue is the time of the conduction of the EIA, most developed countries required the EIA should be carried out before the decision of the project; however, in HK, the EIA merely is a product for pursuing the statutory requirement and thus carries out after the decision of the
4

See n.1, para 100-101

construction. Accordingly, the scope and content of the EIA confined and limited by business and commercial factors; for example, most of the EIA of HK railway construction projects are restrained to only one specific route, like the Lok Ma Chau spur line, the EIA could not assess the surrounding areas and provides better alternative route to the project as the MTR narrowed the scope of the EIA to only the designated path.