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UNCC DECISION 258, THE FOLLOW-UP GUIDELINES FOR ENVIRONMENTAL REMEDIATION

The UNCC awarded compensation to the State of Kuwait on the Environmental Claims under UNCC Decisions 212, 234, 235 and 248 . The environmental awards were based on the F4 Panel Reports and Recommendations addressing the Environmental Remediation Claims.

The Environmental Awards cover a range of environmental damages such as oil lakes, ground water, and terrestrial areas requiring re‑vegetation, coastal areas and others.  The table below lists Kuwait's environmental awards for environment remediation covered in each of the decision together with a short description of each underlying environmental claim.   

 

List of Environmental Remediation Projects/Awards for Kuwait in UNCC Governing Council Decisions 212, 234, 235, and 248

 

Unlike the awards for individual and/or corporate claims for losses, the environmental awards are designated to assist Claimant Governments to restore their damaged ecosystems and can only be spent to satisfy this objective. In order to ensure compliance by all Claimant Governments with the Decisions, the UNCC has issued Decision 258 in December 2005, wherein it included specific Guidelines for the Follow-Up Program for Environmental Awards (the “Guidelines”).  A copy of the UNCC GC Decision 258 and Guidelines is included as Appendix 1.

 

The UNCC Guidelines link the payments for compensation under the Environmental Awards for each project to progress and execution.  In order to understand the role and responsibility of Claimant Governments toward the Guidelines it is important to describe and discuss some of the basic elements of the Guidelines.

The Guidelines establish and describe the follow-up program to monitor technical and financial progress of the Environmental Remediation Projects (ERP) funded by the F4 Environmental Awards. The awards were made to Kuwait, Saudi Arabia, Jordan and Iran.  The ERPs pertaining to each country are listed in Annex I of the Appendix to UNCC Decision 258.  Kuwait Environmental Regional Program (KERP) will cover the on-going environmental Monitoring and Assessment Projects, as well as F4 ERPs under Installments 3, 4, and 5. 

 The Program is a cooperative process involving the:

1.       The Governments of Iran, Jordan, Kuwait and Saudi Arabia ("Claimant Governments");

2.       The Government of Iraq;

3.       International or local experts who are independent with respect to the projects
  ("Independent Reviewers");

4.       The Governing Council of the UNCC ("Governing Council"); and

5.       The Secretariat of the UNCC (the "Secretariat").

It is important to note the linkages between each entity as shown in flowchart at Annex II of the Guidelines. Claimant Governments will provide regular technical and financial reports for each ERP to the Independent Reviewers. The Independent Reviewers will report their evaluations of the projects to the Secretariat. The Secretariat will provide the Government of Iraq copies of these reports to review and submit for comments to the Secretariat. The Secretariat will report to the Governing Council the comments of the Independent Reviewers and the Government of Iraq. The Governing Council will decide what actions, if any, to take in response to these reports. Submission of these reports to the Independent Reviewers and any correspondence with the UNCC with regard to the environmental remediation projects will be done exclusively by the National Focal Point (NFP) as will be described later.

Each Claimant Government will designate its NFP to serve as the link between the agencies and contractors responsible for implementing the projects and the UNCC. Note also that in order to enhance cooperation between Claimant Governments and Iraq, the NFPs of Claimant Governments will meet on a regional basis for coordination and cooperation and exchange of information, as necessary. The meetings will also include the designated NFP appointed by the Government of Iraq.

Claimant Governments are directed to make sure that the UNCC is kept informed, through the Independent Reviewers, in timely manner about the initial planning phase of the ERPs. This will  involve submission of work plans (including long-term environmental remediation monitoring plans to guide the project implementation over time), draft agreements with public or private contractors, established contracts, any environmental and financial assessments made and any necessary field tests of restoration approaches to be completed before implementation of projects. Claimant Governments must submit to the Independent Reviewers detailed summaries of any proposed changes to the approaches recommended by the F4 panel. Note that Kuwait must provide justification and seek the acceptance of the UNCC before implementing any changes to the remediation approaches approved by the F4 panel.

Claimant Governments may be requested to submit documents and additional information as requested by the Independent Reviewers for the technical and financial evaluation of projects. Submission of official project and program documents to the Independent Reviewers or to the UNCC will be done by the NFP. Such documents will include, but are not limited to those relating to:
1 Procurement Standards.
2 Terms of reference for implementation of projects.
3 Details of consultants and contractors and all contracts including those with principal contractors, subcontractors and consultants.
4 Contract value, scope of work and contract duration for each project;
5 Project work plan and detailed project budget;
6 QA/QC protocols for technical and financial monitoring;
7 Criteria for evaluation of remediation and restoration programs;
8 Research reports and field studies documenting the rationale for selection of remediation and restoration approaches that are different from the approach recommended by the F4 panel;
9 Periodic technical  monitoring reports as requested by the independent reviewers;
10 Periodic financial monitoring and audit reports as requested by the Independent reviewers, including audited statements on expenditure related to the level of implementation of ERPs.

The Independent Reviewers generally will be responsible for evaluating projects according to the technical and financial Guidelines and will report their findings to the UNCC. The main responsibilities of the Independent Reviewers are:

a. Follow each project closely in cooperation with the Claimant Governments and to provide regular monitoring and evaluation reports to the UNCC on the implementation of the remediation/restoration projects according to the technical and financial guidelines;
b. Identify any material modifications in the projects;
c. Identify significant problems that may arise in the implementation of the remediation/restoration projects;
d. Notify the Secretariat of any modification and problems in a timely manner; and
e. Evaluate whether each project continues to be a reasonable remediation/restoration project.

The reports of the Independent Reviewers will be based on documents provided by claimant Governments, site inspections and discussions with project personnel that they determine to be necessary. The PPSC will be responsible for providing reports for submission by the Kuwait NFP to the Independent Reviewers (IR) and to assist the NFP in facilitating any site visits and interactions with project contractors by Independent Reviewers.

The Independent Reviewers will submit semi-annual reports to the UNCC or when requested by the UNCC. The regular reports will include two parts:

a.       Reports on the monitoring of the environmental remediation projects.

b.       Reports on the Monitoring and Assessment activities under F4 Installment 1. PAAC will be the main source for these reports.

Iraq will be integrated into the process of the Program in two ways:

a.       Iraq will receive from the UNCC Secretariat the reports submitted by the Independent Reviewers. Iraq may make comments to these reports and submit the comments to the UNCC Secretariat which will present them to the Governing Council.

b.       Iraq has experienced large and adverse environmental damages covering many sectors. Iraq needs to benefit from the experience already available after the implementation of the environmental monitoring and assessment studies and what can be learned in the future from implementation of the ERPs. The sharing of this information will be achieved by the collective efforts of the NFPs through the regional cooperation program between Iraq and Claimant Governments.  The NFPs will form a Regional Environmental Rehabilitation Advisory Committee (RERAG).  RERAG will be responsible for defining the role and extent of the regional environmental cooperation and coordination.  Such cooperation might call for the implementation of the following:

                           i.   Creation of a regional environmental rehabilitation cooperation program among Claimant Governments and Iraq covering the implementation period of the ERPs.  This program would be aimed at defining the specific information that can be collected, shared, exchanged or processed, the role of each member country in the provision and handling of such information and defining the terms and conditions of the legal cooperation and the material requirements if any.

                         ii.   Creation of a Regional Environmental Rehabilitation Database (RERD) to facilitate the archiving, quality control, processing, sharing and exchanging of information between Claimant Governments and Iraq. The database may be an amalgamation of the national data collected by each Clamant Government. Iraq will be responsible to collect process and submit its own data. The type and format of information and data to use within the database will be determined by the regional cooperation program defined above. It is expected that Kuwait will host and manage RERD.

The UNCC follow-up process includes, as stated earlier, a Secretariat staff which is assisted by experts if necessary. The Secretariat receives the reports from the Independent Reviewers, Claimant Governments and the Government of Iraq. The Secretariat may seek input and assistance of external experts and may request information, documents, and site visits if necessary. All communication from the Secretariat, with regard to the ERPs identified in UNCC Decision 258, will be addressed and received by the  NFP and the NFP will transmit all UNCC correspondence to the concerned organizations within Kuwait.

The UNCC has outlined seven principles for guidance in the development and implementation of ERPs (in the F4 Installments 3, 4, and 5), which are stated in paragraph 33 of the Guidelines:
a Remediation approaches or techniques that pose unacceptable risks of ecological harm should be avoided.
b Remediation activities should be undertaken only if they are likely to result in more positive than negative effects.
c Remediation techniques that facilitate natural recovery processes should be preferred, and active remediation should build on and enhance natural recovery that has already occurred.
d Remediation should rely on proven and well-established technologies and techniques in preference to experimental or untested approaches.
e The effectiveness of remediation activities should be monitored to ensure that remediation targets are met. Remediation programs should be designed to be sufficiently flexible and responsive to new information obtained from such monitoring.
f Where more than one remediation approach or technique is appropriate to achieve a desired remediation goal, the most cost-effective option should be selected.
g Remediation decisions should consider both the short-term and long-term effects of remediation activities on neighboring ecosystems, including trans-boundary effects.

© 2006, Kuwait NFP