3 October 2013
The above Bill was published in the Gazette on 27 September 2013 and will be introduced into the Legislative Council on 23 October 2013. The Bill seeks to amend the Air Pollution Control Ordinance (Cap. 311) (APCO) by prohibiting the use, supply, import and transhipment of all types of asbestos or asbestos containing material1 under the new section 80 of the APCO. The Bill also seeks to make the relevant amendments to Factories and Industrial Undertakings (Asbestos) Regulation (FIU Regulation) by prohibiting the use of all types of asbestos in industrial undertakings2.
Before the mid-1980s, asbestos was widely used in friction, fireproofing, insulation and building materials because of its high tensile strength and good heat- and chemical-resistant properties. However, asbestos is a human carcinogen and scientific evidence shows that the inhalation of asbestos fibres causes, amongst other things, lung cancer. Accordingly, the above amendments are proposed to be made to better protect public health and to improve the environment.
The salient amendments which are sought to be made to the APCO pursuant to the above Bill are:
- Amending the definition of "asbestos containing material" (see footnote 1) by removing the requirement that the material must contain more than 1 percent asbestos.
- Defining "supply" to include (i) supplying without consideration, (ii) offering or exposing for supply, (iii) selling or offering or exposing for sale, and (iv) hiring out or offering or exposing for hiring out.
- Defining "use", in relation to asbestos or asbestos containing material, to mean (i) affixing, applying, spraying or installing asbestos or asbestos containing material on or in any premises, (ii) adding, mixing, or inserting asbestos or asbestos containing material to, with, into any material, substance, product or article for manufacturing or producing any product or substance, or (iii) wrapping any material, substance, product or article with asbestos or asbestos containing material.
- Providing a defence for a defendant charged under the new section 80 of the APCO by putting the evidential burden on the defendant to prove that at the time of the alleged offence, the defendant did not know and could not have reasonably known that the article is asbestos or asbestos containing material.
- A person who uses, supplies, imports or tranships asbestos or asbestos containing material commits an offence, and is liable on conviction to a fine of HK$200,000 and to imprisonment for 6 months.
- Specifying the circumstances to which the new section 80 does not apply and such circumstances include, for example, (i) the importation or transhipment of asbestos or asbestos containing material that is goods in transit, and (ii) the supply, importation or transhipment of asbestos or asbestos containing material that is proprietary Chinese medicine by a person.
- Providing that if a person is convicted under the new section 80, the asbestos or asbestos containing material that is connected with the offence may be seized, removed, destroyed or disposed of.
The salient amendments which are sought to be made to the FIU Regulation pursuant to the above Bill are:
- Repealing the relevant section of the FIU Regulation to require the designation of a protective equipment zone3 for work with chrysotile4.
- Prohibiting the proprietor5 of an industrial undertaking from carrying out work with chrysotile in the industrial undertaking.
- Raising the maximum penalty for offences related to the ban on using asbestos in industrial undertakings to a fine of HK$200,000 and imprisonment for 6 months.
1 Means "any material, substance or product which is made with or contains more than 1% asbestos by weight as determined by a method approved by the Secretary for the Environment", subject to the amendment referred to in the above first bullet point.
2 Includes, amongst other things, any factory, mine or quarry, construction work, and container handling.
3 This is a designated area where work with asbestos is carried out.
4 Under the FIU Regulation, chrysotile is a type of asbestos, which also includes "amphibole asbestos" (which is defined as meaning any of the minerals crocidolite, amosite, fibrous actinolite, fibrous anthophyllite, fibrous tremolite and any mixture containing any of those minerals) and any mixture containing any chrysotile and amphibole asbestos.
5 Under the FIU Regulation, this includes the person having the management or control of the business carried on in the industrial undertaking, and the occupier of any industrial undertaking and the agent of such an occupier.