Environmental impact evaluation and mining activity in the province of Mendoza

On May 26, 2006, the Official Gazette of the Province of Mendoza published Decree No 820/2006 which regulates the environmental impact evaluation process of the different phases of mining activity that may be developed in the province.

Decree No 820/2006 fills the legal gap left by Law No 5,961, (for preservation of the environment), which only required an environmental impact evaluation for mining exploitation and open-pit extraction, and did not address the prospecting and exploration phases.

In accordance with Decree No 820/2006, every individual or legal entity, public or private, and national, provincial or municipal companies which plan to perform mining activities within the province of Mendoza, must obtain an Environmental Impact Declaration (“EID”). For that purpose an Environmental Impact Report (“EIR”) must be filed before the mining recorder’s office (“escribanía de minas”) of the Direction of Mining and Hydrocarbons.

In connection with the administrative process related to obtaining the EID, it is important to point out the active participation granted by Decree No 820/2006 to the municipalities where the proposed mining activities are going to be carried on.

The municipality must receive a complete copy of the EIR in order to analyze and elaborate its opinion with its observations on scientific and technical grounds.

On the other hand, Decree No 820/2006 emphasizes on the participation of citizens in the administrative process for the enacting of the EID.

The mining authority must publish in the Official Gazette of the Province of Mendoza the public consultation, and it shall make available the EIR on newspapers of provincial circulation and local open-television media, so that those interested or those that might be affected by the mining project are able to present observations and objections that they may consider pertinent.

In case the mining activity to be carried on is prospecting, once the public consultation is performed, the mining environmental authority shall call on a public hearing for the attendance of non-governmental environmental organizations and all other individuals, public or private, potentially affected by the performance of the project.

The decree also provides for the creation of a Mining Environmental Interdisciplinary Evaluation Commission (“MEIEC”) made up of different provincial and national agencies and by the municipality where the mining project subject to evaluation is going to be developed.

The MEIEC must draft a final report, which includes all and each one of the technical opinions of the members of the commission and the conclusions of the different opinions, objections or oppositions formulated in the technical consultation process. Once the final report is concluded, it has to be included in the file which will be sent to the mining environmental authority for its resolution.

The EID may either (i) authorize the performance of the mining project under the terms articulated in the EIR, (ii) authorize the performance of the project, but subject to the fulfillment of the modifications instructed by the mining environmental authority or (iii) reject the EIR when considered insufficient by the mining environmental authority. In this last case the proponent shall be requested to file a new EIR that includes the omissions and the correction of the errors which have been pointed out.

The EID shall be updated twice a year by filing a report with the results of the protection actions performed, as well as the new facts that have been produced.