EIA application in the transboundary context

1. EIA applicationin the transboundary context Oleg Pechenyuk Independent Ecological Impact Assessment, Kyrgyzstan www.eco-expertise.org

2. Methodic basis of EIA CONDUCTION IN TRANSBOUNDARY CONTEXT • UNECE Guideline on public participation in Espo Convention • UNECE Guideline on practical application of Espo Convention • UNECE Guideline on consideration of Espo Convention execution • ENECE Guideline on notification as per Espo Convention • Methodological aspects of impact on natural and social/economical environment (Kazakhstan Agency for Applied Ecology) • Guideline on EIA conduction in the transboundary aspect in the Caspian region (step-by-step procedure) • Procedure on conduction of environment impact assessment in the transboundary context for CAR

3. EIA feasibility study materials have been submitted for consideration to the specially authorized environment protection body of Kazakhstan; The option on thiosulphate method of gold extraction proposed by Kazakh party has not been considered. Public consultations have not been conducted in the Kazakh party. It is necessary to foresee periods for conduction of all EIA procedures in the transboundary context. “Dzeruy” gold deposit

4. In 2006 the Kyrgyz Republic Government Draft Regulation on “Construction of Chyrpykty-Chon-Kemin-Kaskelen motorway” was cancelled due to solution of the issue regarding construction of the motorway by Kazakhstan Company “Erkin Trans Service” LLC from “sheet” with parallel performance of design and survey works and construction works; In this case the planned motorway had to pass the territories of two states; The Kazakh and Kyrgyz parties submitted inquiries to the governmental bodies; “Independent Ecological Impact Assessment” Public Association has conducted ecological impact assessment of the decision regarding the motorway construction on Issyk-Kul biospheric territory. Construction of private, toll motorway Chyrpykty (Kyrgyzstan) – Chon-Kemin – Kaskelen (Kazakhstan)

5. Independent ecological impact assessment Decision on Eurasian Industrial Association proposal for the KR Government dated 15.11.2005, the KR Government Instruction #17-p dated 16.01.2006 • We consider it necessary to conduct strategic ecological assessment of decisions made taking into account : • Transboundary consequences of made decisions to ensure regional security; • International commitments on preservation of common water and air basins; • Common concern with possible ecological consequences of harmful aluminum production for fragile mountain eco-system; • Problem concerning aluminum production waste management; • Risks related to dependence of presumptive production from the external primary products providers (absence of quality primary products for aluminum production in the KR

6. The KR Government Regulation #360 on “Construction of ferroalloy plant in the Kyrgyz Republic” dated 23.08.2007 • As per this Regulation “Avinien” LLC proposal on implementation of the construction project of ferroalloy plant with capacity of 200000 tons of aluminum ferrosilicon per year in Tash-Kumyr, Jalal-Abad oblast has been approved

7. Upon consideration of this regulatory and legal act (RLA) a number of contradictions with the national legislation and international commitments of the KR has been identified • As per the KR Law on “Ecological impact assessment” (Article 3) this RLA had to undergo ecological impact assessment; • As per Article 3 of the Law on “Regulatory and legal acts of the KR” the regulatory and legal acts of the KR have to correspond to the Constitution as well as to the other regulatory and legal acts of higher legal force compared to them. Thus, the Government Regulation envisages “to manage construction process together with projecting” that contradicts Articles 16, 17 of the Law on “Environment Protection” and Articles 3, 4, 10, 23 of the Law on “Ecological impact assessment”; • In accordance to Espo Convention on “EIA in the transboundary context” this project is an object of transboundary impact. As per Article 2 “Party of origin ensures conduction of environmental impact assessment as per regulations of Convention, conduction before decision-making on sanctioning or execution of the planned activity that may make harmful transboundary impact”.

8. 4. In accordance to Article 2 of the Convention on “Long-range transboundary air pollution” the countries are responsible for ensuring of non-affecting by the activity within their jurisdiction or under their control the environment of the other countries or sites beyond effect of the national jurisdiction. As per Article 5 based on the corresponding requirement in the early stage counseling is conducted between the parties factually affected by unfavorable consequences of long-range transboundary air pollution or the parties exposed to significant risk of such consequences and with the parties within which and under jurisdiction of which a significant portion of long-range air pollution emerges or may emerge in connection with the activity performed or planned by them.

9. 5. Production of aluminum ferrosilicon proposes the use of a large amount of water, but in accordance to the KR President Decree on “Basis of external policy of the Kyrgyz Republic on using water resources of rivers formed in Kyrgyzstan and flowing to neighbor countries”: “The issues related to water supply, regulation of river flow and availability of water use at a fee or distribution of benefit out of using of water resources are the topics of international negotiations”. • In case of production of 200000 tons of aluminum ferrosilicon per year a great quantity of production wastes will be formed. In accordance to Article 8 of the KR Law on “Production and consumption wastes” “Choice of a place of construction of facilities to store wastes is made by the local government authorities (in the necessary cases based on public opinion) in accordance to requirements of a competent body based on ecological, geological, hydrological and other surveys upon positive conduction of the state ecological assessment and in accordance to the KR legislation”.

10. Recommendations: • To cancel this Government Regulation as a document non-undergone ecological assessment based on the law-specified procedure and contradicting the national legislation and international commitments of the Kyrgyz Republic; • Initiators of construction of the ferroalloy plant should prepare a project documentation and conduct a procedure of coordination and obtaining permits for construction of this facility of transboundary value in accordance to the Kyrgyz Republic legislation; • To submit feasibility study of appropriateness of the decision made.

11. Development of “Andash” Kyrgyz deposit located 2.5 km south from the Kyrgyz-Kazakh border. All the production facilities are located too close to the Karakol river, which is a source of the transboundary waterflow – the Talas river. In this connection the assessment on environmental impact on the neighboring country - Kazakhstan has been made in accordance to the Espo Convention requirements. “Andash” copper and gold deposit

12. Construction of ski resort in “Kok-Jaylau” natural boundary • The Kazakhstan public has initiated a procedure of transboundary EIA related to construction of ski resort in “Kok-Jaylau” natural boundary located in Ile-Alatau National Park, Almaty oblast.

13. Synergism of International Environmental Agreements is possible It requires: • Inter-sectoral cooperation; • Broad-scale involvement of the local population; • Adaptation to the local realities; • Availability of short-term benefits and long-term vision;

14. Thank you for attention! Oleg Pechnyuk, Independent Ecological Impact Assessment, Kyrgyzstan www.eco-expertise.org