Environmental Mining Liabilities: A Pending Opportunity in Peru

by Cinthya Arhuata, Legal Assistant, Ada Alegre Consultores S.A.C

Eight thousand four hundred forty eight (8448) is the number of mining environmental liabilities identified by the Ministry of Energy and Mines of Peru, until January of this year (Ministry Resolution N° 010-2019-MEM/DM). Sadly, this number has not changed much since the first report of mining environmental liabilities was published in 2006.

 


Source: Mining environmental liabilities: diagnosis and proposal

In the face of this worrying picture, one question that most of Peruvians can´t answer is: why haven’t any of the mining liabilities identified in the 13 years following 2006 been resolved?

This question is not easy to answer because Peru has a lot of regulations that are supposed to promote the remediation and reuse of environmental liabilities associated with mining. The first one is the Law No. 28271, which regulates the environmental liabilities of mining activity, published on May 25th, 2005 in the State newspaper, El Peruano. This Law was modified in 2008, through Legislative Decree N° 1042 in order to establish a variety of options through which the environmental objective of remediation of environmental liabilities could be achieved. Also, the Legislative Decree N° 1042 added article 11 to the mentioned law, and established the possibility of reusing the mining environmental liabilities of economic value.

Another important regulation is the Supreme Decree N° 003-2009-EM, establishing the conditions  and specific rules for the re-exploitation of mining environmental liabilities. Is noted in its article 12 that any person or entity may propose the voluntary remediation of environmental mining liabilities "that are located in its own mining concession, third party or in areas of free denunciability."

However, Supreme Decree N° 003-2009-EM set prioritization criterion for the purpose of re-exploitation authorization, subject to a time limit to enforce such priority. The first order of priority was designated for the generator of the mining environmental liability or anyone claiming to have any rights to it. The deadline to enforce was 30 calendar days counted from the validity of the Supreme Decree N° 003-2009-EM.

The second order of priority was held by the holder of the mining concession in whose field the environmental liabilities are located. The time limit for the assertion was 60 days from the end of the term of the preceding paragraph. Then, any third party may request the authorization to retake. (Art. 60°)

Despite these regulations, the difficulties for the effective remediation of mining environmental liabilities are abundant. There are claims and challenges of concessionaires and third parties that allege better right for the exploitation, the participation of the regional governments in the processing of the request for reuse, and the environmental mining liabilities not inventoried by the Ministry of Energy and Mines.

The environmental liabilities not being reused by the generators, owners of the mining concessions, or by third parties, causes economic, social and environmental costs to the State.

In the social sphere, populations who live near the areas where mining environmental liabilities are found are the most affected since their quality of life is diminished and public health is at risk.

One of the provinces most affected by environmental mining liabilities is Hualgayoc, located in the region of Cajamarca. In 2015, the population of this province denounced the contamination of its ecosystems due to the presence of mining environmental liabilities around the Tingo and Cerro Sinchao rivers. These, conforming to a study of the monitoring of water quality in the Llaucano river basin, prepared in February 2015 by the Executive Directorate of Environmental Health (DESA) of the Ministry of Health of Peru, caused lead, copper, iron, manganese and cyanide WAD contamination in the aforementioned basin.

In addition, the non-remediation of mining environmental liabilities generates environmental impacts in the areas adjacent to them. The impacts generated can be evidenced in the degradation of the waters of the rivers, lakes or seas, the degradation of the air, soil, flora, fauna and landscape; as well as deforestation.

In conclusion, it is necessary to promote the remediation, or reuse, of the existing environmental mining liabilities in Peru, in order to achieve the minimization of environmental impacts, as well as create business opportunities for private companies.