Under the Air Pollution Control Ordinance (Cap 311), the Air Quality Objectives (AQOs) set out the targeted maximum levels of the numerous pollutants that affect air quality in Hong Kong. These pollutants are emitted from different sources and are thus regulated by various ordinances and government departments, not all of which incorporate the AQOs in their regulatory approach. In attempting to piece together the puzzle of air pollution regulation in Hong Kong, it becomes clear that new AQOs are only the first step towards cleaner air.

Introducing: the air we breathe

The main sources of air pollution in Hong Kong are from industry, transport and electricity generation (CLSA, ‘Boomtown to gloomtown: the implications of inaction’, September 2006).

Hong Kong’s air contains primary pollutants, emitted directly from identifiable sources, including: sulphur dioxide, a colourless gas with a sharp odour generated by combustion of fuel containing sulphur, which can aggravate existing respiratory and cardiovascular problems; nitrous oxides, the reddish-brown hue generated in the combustion of diesel fuels in power generation and vehicles, which irritates the lungs and lowers resistance to respiratory infections such as the flu; lead, emitted in the use of leaded fuels, which accumulates in blood, bone and soft tissue; and carbon onoxide, generated by the use of petrol and diesel in transport, which interferes with the oxygen-carrying capacity of blood (CLSA, ‘The air we breathe’, April 2005).

Particulate matter may be a primary or secondary pollutant; the latter if it is created in the atmosphere through chemical reaction. Particulate matter is composed of various organic and inorganic substances and can absorb gaseous pollutants, delivering them directly into the lungs. Particulate matter can damage lung tissue and may also be carcinogenic. It is the most noticeable form of air pollution as it reduces visibility.

Ozone is the major secondary pollutant. It is formed by chemical reactions between different pollutants when exposed to sunlight.Ozone is a harmful gas and is the major component of smog. Shortterm exposure causes irritation of the eyes and lungs; long-term exposure can cause chronic health problems such as reduction of lung function.

Target amounts for seven air pollutants are set by the AQOs: sulphur dioxide, nitrogen dioxide, carbon monoxide, lead, ozone, total suspended particulates and respirable suspended particulates (particulate matter).

Air pollution and our health

Air pollution harms human health. The current evidence in Hong Kong is based only on studying short-term effects and may underestimate the impact of air pollution on the population, but there is a clear correlation between air pollution levels and rates of health care use and death: when air pollution rises, more people spend time in hospital, visit the doctor, or die. Based on this correlation, the Community Medicine Department at the University of Hong Kong estimated that the losses amount to 6.8 million doctor visits, over 60,000 hospital bed days and approximately 1600 deaths – translating into annual direct (health care) and indirect (lost productivity) costs of approximately HK$2 billion, plus a further HK$19 billion in intangible costs (‘The impact of air pollution on population health, health care and community costs’, November 2006).

The acute effects of air pollution are immediately felt. Air pollution irritates our eyes, noses, throats and lungs, reducing the flow of oxygen through our bodies. Local studies show that our continuous, longterm exposure to air pollution leads to the development of chronic respiratory and cardiovascular problems, and has also been linked with higher risk of asthma and lung cancer. Our children are worst affected; their higher breathing rates mean greater exposure to air pollution, which is permanently impairing the development of their lungs.

Of particular concern in winter is the effect air pollution has on our immune systems: there is a relationship between increased influenza infection rates and high levels of ozone.

A key question asked in the consultation is, therefore, ‘do you agree that protection of public health should be the key consideration in updating the AQOs?’ The effectiveness of air pollution regulation is indeed crucial for protecting health. Unfortunately, the laws that regulate air pollution are not necessarily geared towards the protection of health. The government’s controversial assertion that implementation of the proposals could extend average life expectancy by one month must be looked at critically in this light.

The traditional aims of air pollution regulation

Historically, air pollution was dealt with in Hong Kong under s 17(19) of the Public Health (Sanitation) Ordinance 1935 and the Air Navigation (Abatement of Smoke Nuisances) Ordinance 1955. In 1960, the Clean Air Ordinance repealed and replaced those laws, but smoke nuisances and safety of aircraft over the old airport remained the primary mischief at which the Ordinance was directed.

In 1983, the Clean Air Ordinance was replaced by the Air Pollution Control Ordinance (APCO), which remains the primary piece of legislation for regulation of air pollution. Whilst the APCO expanded upon and is more detailed than its predecessor, it adopts the same nuisance-based approach to air pollution, the complaintbased and subjective nature of which is not geared towards addressing the prevention of and protection from the incremental and long-term nature of damage to health.

It was not until 1993, when the APCO was amended, that ‘prejudice to health’ was introduced into the legislation. The old term ‘air pollutant nuisance’ was replaced by the current term, ‘air pollution’, defined as:

“an emission of air pollutant which either alone or with another emission of air pollutant – (a) is prejudicial to health; (b) is a nuisance; (c) imperils or is likely to imperil the safety of or otherwise interferes with the normal operation of aircraft; or (d) is determined to be air pollution under a technical memorandum” (emphasis added).

Thus, prejudice to health was grafted on to laws that previously were unconcerned with and did not provide for public health. Only by reading the long title of the APCO in this context can it be interpreted that the ordinance is intended to protect public health – 'to make provision for abating, prohibiting and controlling pollution of the atmosphere’ and reading ‘pollution of the atmosphere’ as equivalent to ‘air pollution’ as defined above.

The AQOs under the Air Pollution Control Ordinance

For the purposes of air pollution regulation, Hong Kong is divided into ‘air control zones’. Under the APCO, the AQOs are established by the Secretary for the Environment in respect of the air control zones. In accordance with s 7, the AQOs should ‘be the quality which, in the opinion of the Secretary, should be achieved and maintained in order to promote the conservation and best use of air in the zone in the public interest’.

The ‘best use of air’ is not defined. Protection of public health has not been explicitly integrated, though it is arguable that by necessary inference for the proper functioning of the ordinance, the setting of the AQOs must be linked to the protection of health. Unfortunately, even if the AQOs are intended to protect health, the AQOs currently in force were established in 1987 and have not been updated since. They are based on outdated medical science that no longer protects health.

Regulation of air pollution

The APCO provides the primary legislative framework, but it is not the only legislation relevant to air pollution. Both the Environmental Protection Department and the Legislative Council’s Subcommittee on Improving Air Quality have compiled lists of legislation relating to air quality, which include the Road Traffic Ordinance (Cap 374), the Shipping and Port Control Ordinance (Cap 313), the Merchant Shipping (Local Vessels) Ordinance (Cap 548), the Dutiable Commodities Ordinance (Cap 109), the Motor Vehicles (First Registration Tax) Ordinance (Cap 330), the Environmental Impact Assessment Ordinance (Cap 499) and the Public Health and Municipal Services Ordinance (Cap 132), as well as a number of regulations.

Ordinances such as these regulate air pollution emission sources, but as the following analysis will show, most are not concerned with the protection of health and do not refer to the AQOs at all in their regulatory approach.

Marine emissions

Marine emissions account for 5% of sulphur dioxide emissions, 9% of particulate matter emissions and some 18% of nitrous oxides emissions in Hong Kong. Marine emissions have been of particular concern following a recent study showing that the bunker fuel used by ocean-going vessels generates emissions of higher toxicity, and the concentration of such vessels in the Kwai Chung / Tsing Yi container terminal area is in close proximity to a densely populated area.

Generally, ships are regulated by the Shipping and Port Control Ordinance and the Merchant Shipping (Local Vessels) Ordinance, administered by the Director of Marine. Ferries are regulated by the Ferry Services Ordinance (Cap 104) and the Merchant Shipping (Safety) Ordinance (Cap 369), administered by the Secretary for Transport and Housing and the Commissioner for Transport.

Under s 43(1)(p) of the APCO and s 94(1) of the Merchant Shipping (Safety) Ordinance, the Secretary for Environment and the Secretary for Transport and Housing are respectively empowered to make regulations for marine fuel content. However, under rr 3 and 5 of the Merchant Shipping (Prevention of Air Pollution) Regulations, both local and non-local ships (vessels of any type whatsoever operating in the marine environment, under the Merchant Shipping (Prevention and Control of Pollution) Ordinance (Cap 413)) are not permitted to engage in voyages unless they are issued Hong Kong Air Pollution Prevention Certificates and International Air Pollution Prevention Certificates by the Director of Marine. These certificates implement the requirements of the International Convention for the Prevention of Pollution from Ships (Annex VI), which under rr 27, 28 and 29 respectively limits sulphur oxide, nitrogen oxide emissions, ozone depleting substances and caps the sulphur content of fuel oil at
4.5% m/m. Such certificates, however, are not issued with reference to the AQOs nor the possible health effects these emissions might cause.

Beyond certification, control of marine emissions is nuisancebased. Under s 50 of the Shipping and Port Control Ordinance, vessels in the waters of Hong Kong may not emit smoke in such quantity as to be a nuisance; similarly, it is an offence under s 51 of the Merchant Shipping (Local Vessels) Ordinance for any local vessel in the waters of Hong Kong to emit smoke in such quantity as to be a nuisance. Such offences may be dealt with by the Marine Department, public officers authorised by the Director of Marine or police officers ranked sergeant or above. Smoke emissions are not regulated with reference to the AQOs.

Furthermore, an authorised officer may, under s 52(2) of the Merchant Shipping (Local Vessels) Ordinance, seize and remove any local vessels from any part of Hong Kong waters if he has reason to suspect such vessels pose a hazard to the environment. Environmental hazards, however, are not defined in the ordinance, making this provision difficult to enforce. In particular, no reference is made to the AQOs or prejudice to health in order to determine what an environmental hazard is.

Roadside emissions

Roadside emissions currently account for 1% of sulphur dioxide emissions, 23% of nitrogen oxide emissions and 31% of particulate matter emissions in Hong Kong. Motor vehicles produce the emissions with the greatest health impacts.

Generally, road transport matters are regulated by the Road Traffic Ordinance, administered by the Secretary for Transport and Housing and the Commissioner for Transport, including the licensing of public service vehicles as well as private vehicles. Roadside emissions are controlled by regulating motor vehicle fuel and motor vehicles in Hong Kong.

In respect of motor vehicle fuel, s 43(1)(p) of the APCO empowers the Secretary for Environment to regulate the specification of the kinds of fuel or of any type of material that may evolve air pollutant. Furthermore, the prohibition on the sale of leaded fuel, the control of the supply of unleaded petrol for the purposes of air pollutant emissions control from motor vehicles, and regulatory powers under the ordinance are extended by the Air Pollution Control (Motor Vehicle Fuel) Regulations (Cap 311L) to motor vehicles and premises in which petrol is stored or offered for sale.

The regulation and licensing of motor vehicles under the Road Traffic Ordinance is administered by the Commissioner for Transport, who may require vehicles be tested under s 77B to determine if the vehicles comply with vehicle emission standards. The standards are set by the Secretary for Environment under the Air Pollution Control (Vehicle Design Standards) (Emission) Regulations (Cap 311J). Though the creation of these rules was unconnected with the AQOs specifically, they were created for ‘the purposes of this Ordinance’, and thus arguably intended to be connected to the protection of health.

Furthermore, under s 9(1)(b) of the Road Traffic Ordinance, the Transport and Housing Bureau is empowered to regulate the emission of smoke, fumes, vapour, sparks and grit from motor vehicles. Controlof these emissions is however unconnected with any prejudice to health they may cause, or to the AQOs.

Another regulation relevant to air pollution is r 31 of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap 374A), which provides that all motor vehicles must be constructed and maintained so excessive smoke or visible vapour is not emitted, though again, there is no link between those emissions and prejudice to health or the AQOs.

A legislative effort to reduce roadside emissions was made through the Dutiable Commodities Ordinance, whereby the duty for Euro V diesel is exempted and a lower duty is imposed on the import of ultralow sulphur diesel. And, in order to reduce roadside emissions, the Motor Vehicles (First Registration Tax) Ordinance was enacted so that first registration tax is not payable for motor vehicles which are propelled solely by electric power and do not emit any exhaust.

Emissions from electricity generation

Emissions from the generation of electricity account for 32% of particulate matter, 44% of nitrogen oxide and 89% of sulphur dioxide emissions in Hong Kong. Electricity works are regulated under Part IVB of the APCO as ‘specified licences’, for which there will be allocated a quantity of emission allowances under s 26G starting in 2010 for the purpose of attaining and maintaining (though not necessarily requiring compliance with) the AQOs. Breach of the allocated quantity leads to criminal liability and fines for excessive emissions, but adjustments can be made for emission allowances and surplus can be carried forward for one year.

Ambient air quality controls

Under s 10 of the APCO, where the Environmental Protection Department is satisfied that air pollutants from a polluting process are contributing to existing or imminent air pollution, it may give an air pollution abatement notice which would require the emissions be ceased, reduced or other steps taken to abate the emission of air pollutants. The AQOs are not referred to for these purposes, but the advice of a medical practitioner may be taken into account. Similarly, under the Public Health and Municipal Services Ordinance, any dust, fumes or effluvia emitted in such a manner as to be a nuisance shall be regulated by a nuisance notice from the Food and Environmental Hygiene Department. These appear to be a form of emergency power against air pollution, but the effectiveness of such powers to deal with the incremental, long term health impacts caused by ambient air pollution is questionable.

Ambient air pollution controls may arguably be found in the Environmental Impact Assessment Ordinance, which provides for the assessment of the environmental impact of designated projects in the early planning stages, as well as alternatives or mitigation measures for the protection of the environment. Projects that must be assessed include roads, railways and depots; airports and port facilities; energy supply facilities; water extraction and water supply facilities; waterways and drainage works; industrial activities; storage, transfer and trans-shipment of fuel facilities; agriculture and fisheries activities; community facilities; tourist and recreational developments; and residential and other developments.

Persons wishing to carry out such projects must first apply to the Environmental Protection Department for an environmental impact assessment study brief and prepare an environmental impact assessment report, which must then be approved before an environmental permit can be applied for.

Of particular relevance is that in deciding whether or not a permit will be granted, the Director of Environmental Protection shall have regard to (but not necessarily comply with) the AQOs and, more importantly, the likelihood of such a project causing prejudice to health. As the present AQOs are based on science that is 22 years out of date, impact assessment against the AQOs alone is insufficient for the protection of health; consideration of health effects beyond the AQOs is necessary for compliance.

An environmental permit may be suspended, varied or cancelled by the Chief Executive if the continuation of the project will likely be more prejudicial to health than was first expected, or by the Environmental Protection Department with the consent of the Environment Bureau if it is discovered that the applicant gave wrong or misleading information during the application, or that the applicant is no longer able to comply with the conditions of the environmental permit. A key weakness in the ordinance is the lack of requirementthat testing be done to ensure the projections of environmental impact were accurate to begin with.

The imminence of new AQOs only makes projections more difficult, raising the issue of whether specified projects subject to impact assessment will be required to comply with the new standards. If not, structures in Hong Kong will fall under three categories: those that were not required to comply with impact assessment (completed before the Environmental Impact Assessment Ordinance came into force in 1998); those that comply with impact assessment based on the current AQOs; and those that will have to assess impact in accordance with the new AQOs after they are established. Such disparity is not conducive to effective air quality management.

Will the new AQOs lead to cleaner air in Hong Kong?

Given the constraints of space, it is impossible to canvass all legislative and regulatory provisions relevant to air pollution. However, from this overview, a number of conclusions may be drawn. First, the current AQOs are unable to protect health from the effects of air pollution. Second, the AQOs are not consistently or effectively integrated into the air pollution regulation system. Where the AQOs are integrated, as under the APCO and the Environmental Impact Assessment Ordinance, there is no mandatory compliance, only the need to have regard to them. Where the AQOs are not integrated, there is a fragmentation of the regulatory system across many pieces of legislation, overseen by enforcement agencies that may not have control of or protection of health from air pollution as a priority. The effectiveness of updated AQOs in delivering clean air for Hong Kong is hampered by these issues.

Despite the scope of the Study to Review Hong Kong’s Air Quality Objectives, covering ‘the current state of air quality in Hong Kong ... as well as policies, programmes and legislation in place for controlling air pollution’ (emphasis added), no proposals have been put forward to address this underlying issue. The review of the AQOs can therefore only be seen as a first step towards clearing Hong Kong’s air, with legislative reform also required.