Province of Neuquen: Regulation of law 2682 (environmental regulation for the mining activity)

1. Introduction. In our edition of January 2010 we informed of the new environmental regulation that the Province of Neuquen had enacted for mining activity (Law 2682). On 11/29/2010, Law 2682 was regulated by Decree 2331/2010.

2. Scope of Application. Section 1 of Law 2682 establishes its general scope of application by stating: “Protection of the environment and conservation of natural and cultural heritage, which might be affected by the mining activity, are ruled by the provisions of this law.” Section 1 of Decree 2321/2010 establishes that its regulations will apply to the mining activity that in any of its stages necessarily has to use the substances included in Section 14 of Law 2682.” Thus, Decree 2321/2010 narrows the scope of application of the Law, as it does not comprise all the mining activity, but only the activity that “in any of its stages necessarily has to use the substances included in Section 14 of Law 2682,” this is, the activity that in any of its stages uses “mercury, cyanide solutions or sulphuric acid solutions” (cfr. Section 14 Law 2682).

Therefore, it may be asked: what environmental regulation is applicable to those mining activities that are not comprised by section 14 of Law 2682? Are provisions of Law 2682 applicable?

It may seem that Law 2682 is applicable to every type of mining activity, independently of the substances used, because:

• Law 2682 does not say anything about narrowing its application to those activities that use the substances mentioned in its section 14. Moreover, its section 1 states a broad scope of application, which leaves open its application to all the mining activity.
  
  
• Section 4 of Law 2682 provides that “the activities comprised by this law are: (1) Prospection, exploration, exploitation, development, preparation, extraction and storage of mineral substances…; (2) The processes of grinding, milling, extraction, pelletization, sintering, primary production, calcination, smelting, cutting, refining, polishing and others that may come up with new technologies and the disposal of waste of any kind.” In many of the activities previously identified it is not necessary to use “mercury, cyanide solutions or sulphuric acid solutions” (cfr. Section 14 Law 2682). In consequence, it may seem reasonable to conclude that Law 2682 is not intended to be limited in the way it turned out to be limited in its scope of application by Decree 2321/2010 and, so, it is applicable to every mining activity, excluding the use of “mercury, cyanide solutions or sulphuric acid solutions” in its stages.

In any case, in view of the narrow scope of application that the Decree that regulates Law 2682 proposes, it would be convenient to specify if the provisions of this law are applicable to every kind of mining activity or, as it appears from section 1 of Decree 2321/2010, only to those that use the substances included in section 14 of Law 2682.

Though Decree 2321/2010 does not specify what environmental regulation is applicable to those mining activities not mentioned in section 14 of Law 2682, it does state that this decree is “complementary to the mining procedure established by Decree No 2699/97 and the concurrent provisions of the rules applicable to the environmental mining procedure.” Therefore, it must be concluded that the regulatory rules applicable to mining activities that are not included in section 14 of Law 2682 are: (i) Decree No 2699/97, and (ii) concurrent provisions of the rules applicable to the environmental mining procedure.

Thus, in the Province of Neuquen there is a diversity of rules, namely: (a) environmental regulations of the Mining Code; (b) Decree 3699/1997, which regulates the environmental provisions of the Mining Code; (c) Law 2682 that, in view of what is established by section 1 of Decree 2321/2010, is not clear if it is applicable to every type of mining activity or only to that mining activity that may in any of its stages need to use “mercury, cyanide solutions or sulphuric acid solutions”; and (d) Decree 2321/2010, which regulates the rules in Law 2682 applicable to the mining activity that, in any of its stages, may need to use “mercury, cyanide solutions or sulphuric acid solutions in leaching or concentration processes.”

This diversity of rules may bring inconveniences at the time of establishing which rule is applicable to each case in particular.

3. Competent Authority. Section 5 of Law 2682 has designated the Secretaría de Estado de Recursos Naturales y Servicios Públicos [Secretary of State for Natural Resources and Public Services], or the entity that replaces it, as the enforcement authority for the environmental protection rules for the mining activity. This entity depends on the Deputy Secretariat of Hydrocarbons, Mining and Energy (Cfr. Decree 1772/2009 of the Province of Neuquen, Chapter XII). Section 5 of Decree 2321/2010 states that: “The Secretary of State for Natural Resources and Public Services, or the entity that replaces it…, will request the intervention of the Deputy Secretariat of Environment, the Provincial Mining Office and the Water Resources Provincial Office, that are responsible for coordinating the technical aspect of reports.”

Section 1 of Decree 3699/1997 establishes that the enforcement authority is the Provincial Mining Office and the Enforcement Authority designated by Decree 330/1997 (01/31/1997), that is, the Secretary of State for Production and Tourism through the Environment and Sustainable Development General Office.

Consequently, which authority is competent to enforce the environmental protection rules for the mining activity? Is it the Secretary of State for Natural Resources, according to Section 5 of Law 2682 or the Provincial Mining Office and the Secretary of State for Production and Tourism (through the Environment and Sustainable Development General Office), according to Decree 3699/1997?

It seems logical to maintain that, for mining activity in any of its stages it is necessary to use “mercury, cyanide solutions or sulphuric acid solutions,” the competent authority is the Secretary of State for Natural Resources (cfr. Section 5 Law 2682 and Decree 2321/2010). For those activities in which it is not necessary to use the previously mentioned substances, is the Secretary of State for Natural Resources (section 5 Law 2682) the competent authority? Or is it the Provincial Mining Office and the Secretary of State for Production and Tourism, through the Environment and Sustainable Development General Office (Decree 3699/1997)? It is not easy to give an answer as it is not clear if Law 2682 is applicable only to the mining activities that in any of its stages may need to use “mercury, cyanide solutions or sulphuric acid solutions in leaching or concentration processes.” It may seem that it is applicable, but it is not clear enough.