The following is a review of the briefing on “Proposals to Enhance Dark Smoke Control on Marine Vessels” given by the Transport and Housing Bureau to the Legislative Council Panel on Economic Development on 27 May 2013 (Paper CB(1) 1073/12-13(05) refers).
See link below:
Comments are made on the following paragraphs:
PARA 2 – DEFINITION OF “NUISANCE”
“The law, however, does not define the extent of emission which shall constitute a “nuisance”. Without a clear or objective definition, whether the emission has caused a nuisance is more a matter of subjective judgment to be proven to the Court on a case by case basis”.
Comment
The Marine Department has misinterpreted the law. The question of whether an emission has caused a nuisance is not a matter of subjective judgment to be proven to the Court on a case by case basis.
For legislative purposes there are two types of nuisance, public nuisance and private nuisance.
A public nuisance is an act or omission that obstructs, damages, or inconveniences the rights of the community. Public nuisances may interfere with public health, through acts such as causing pollution. A public nuisance interferes with the public as a class, not merely one person or a group of citizens.
The legislative intent of Section 51 of CAP 548 and Section 50 of CAP 313 is that the nuisance caused is a public nuisance, affecting society as a whole. The way to “objectively” prove this is through producing evidence of the levels of local particulate pollution and the effects that it is having on public health, both of which are well documented in Hong Kong.
Instead of correctly or rigorously enforcing the law, the Marine Department choose to use the “private nuisance” test – how were you, or other people in the vicinity discomforted by the emission.
Question
What is the reason for this misinterpretation? Is it intentional, through inexperience or because of poor leadership?
PARA 3 - LENGTH OF EMISSION
“The standards used by MD in this regard is that if the intensity of emission is found to be comparable to or exceeding Shade 2 on the Ringelmann Chart and such emission has lasted for three minutes or more, it will be used as supporting evidence that a nuisance has been caused”.
Comment
The Marine Department has consistently briefed LegCo and other bodies that best practice in the UK and USA is use of the Ringelmann Chart and that “… such emission has lasted for three minutes or more”.
This is incorrect!
In the UK, Section 3 (1) (b) of the Dark Smoke (Permitted Periods) (Vessels) Regulations, 1958 states: “in no case shall black smoke be emitted for more than 3 minutes in the aggregate in any period of 30 minutes”.
See link below:
This is a substantially different and weakened interpretation of these regulations.
It should also be noted that these regulations are now considered redundant by the UK Government and it is proposed they be scrapped. See Page 24 of link below:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69584/pb13728-ed-tape-environment.pdf
Question
Have the Marine Department intentionally misled LegCo and other bodies in their briefings, or is this a genuine mistake in interpretation? Irrespective of the answer, why is Marine Department seeking to introduce weakened legislation to Hong Kong?
PARA 5 – VISIBLE EMISSIONS RECORDED
The number of vessels with visible emission as noted in the monitoring surveys conducted by MD has dropped from 40.8% in 2007 to 1.2% in 2012.
Comment
In their briefing to the Local Vessels Advisory Committee in February 2013 (LVAC Paper 1/2013) the Marine Department stated in Paragraph 5: “Only one ocean going vessel in 2011 and one local vessel in 2012 were observed with smoke emission of as dark as or darker than shade 2 on the Ringelmann Chart for a continuous period of 3 minutes or more”.
See link below:
Question
If the proposed legislation is only going to affect 1 or 2 vessels in a year, why is it being enacted?
In its current form, the proposed new legislation is going to have no impact on vessel pollution in Hong Kong whatsoever!
PARA 8 – OVERSEAS PRACTICE
“In line with overseas practice, we propose that Cap.548 and Cap.313 be amended to make it an offence for a vessel, that is a local vessel in respect of Cap.548 and an OGV in respect of Cap.313, to emit dark smoke which is as dark as or darker than shade 2 on the Ringelmann Chart for 3 minutes or more continuously at any one time”.
Comment
The Marine Department are already doing this, so why is it being discussed. In the CODE OF PRACTICE -- Safety Standards for Class IV Vessels (issued under Section 8 of the Merchant Shipping (Local Vessels) Ordinance, Cap 548), Section 3 on Machinery Installations states:
3.15 “Any engine fitted on a vessel should be properly maintained at all time free from dark smoke emission. In this regard, during the final inspection for initial and periodic survey, engine performance condition check would include smoke emission test using Ringelmann Chart. When the dark smoke emitted is as dark as or darker than Shade 2 of the Ringelmann Chart and is emitted for a continuous period of more than 3 minutes, the emission is considered not acceptable”.
3.16 “Any vessel if found or reported emitting excessive dark smoke, owners would be requested to present vessel’s engine(s) for special inspection and smoke test to ensure compliance. Any non-compliance will be pursued in accordance with relevant legislation requirement”.
See link below:
For anyone questioning how effective this has been in curbing dark smoke pollution by vessels in Hong Kong waters, please refer to other posts in this blog under New World First Ferry.
Question
On whose authority have Marine Department given local vessel companies license to not comply with Section 51 of CAP 548 and Section 50 of CAP 313?
It should be noted, at least one local ferry company is not complying with the law as it stands, suggesting there is no reason to do so, as its vessels are not emitting levels of pollution in excess of these “guidelines”, as is stipulated by the Marine Department.
SUMMARY
Rather than strengthen enforcement against dark smoke emissions from vessels in Hong Kong waters, the Proposals to Enhance Dark Smoke Control on Marine Vessels will seriously weaken Hong Kong’s ability to combat such pollution.
These proposals should be reviewed!
