Principal applicable environmental laws
What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?
The National Constitution (NC) and specific Minimum Standards Laws, such as the General Environmental Law No. 25,675, are the main sources of environmental legislation, together with the following:
- the Complementary Title of the Environmental Protection for Mining Activity of the Argentine Mining Code (AMC), as amended by Law No. 24,585;
- the Complementary Rules approved in 1996 by the Federal Council of Mining; and
- provincial local procedural regulations.
Additionally, there are also many other national and provincial environmental protection regulations (eg, on hazardous and industrial wastes, protection of archaeological and paleontological heritage, water effluents and gas emissions, and conservation of natural resources and flora and fauna).
Regarding regulatory and enforcement authorities, according to article 41 of the NC, the government must issue basic regulations containing minimum standards on environmental protection, natural resources, natural and cultural heritage, biological diversity, and environmental information and education, while the provincial governments must issue the provisions required to complement the basic regulations to effectively implement the protection provided by the NC, adapting them to their own environment and development modalities and peculiarities. At a national level, the environmental legal framework is administrated by the Secretariat of Environment and Sustainable Development. At a provincial level, the environmental and enforcement authorities in relation to mining activity are, in certain cases, the mining authorities themselves.
Environmental review and permitting process
What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?
According to the AMC, as amended by Law No. 24,585, prior to the commencement of any of the different phases of mining activity, an environmental impact report (EIR) shall be submitted to the relevant provincial enforcement authority, provided that, until approval has been obtained, no mining activity shall be performed.
The EIR shall be assessed with a technical, scientific and legal administrative process of analysis and assessment and once the process has concluded, the enforcement authority shall issue an environmental impact statement (EIS), containing the terms under which the activity shall be performed in connection with the environment, the community and the authority. In some cases, the environmental authorisation requires summoning the affected community to an obligatory public hearing, although the opinions or objections of those attending do not force administrative decisions.
The specific procedural rules applicable to the authorisation process, as well as the time it might take to obtain the relevant permit, vary from province to province.
The EIS must be updated at least every two years through the filing of a new EIR containing the results of executed environmental actions, as well as any new factors that have been generated.
Do government agencies or other institutions in your jurisdiction provide incentives or publish environmental and social governance (ESG) guidelines for green projects?
In accordance with Law No. 27520, the National Climate Change Cabinet was created, which operates under the Chief of the Cabinet of Ministers. The National Cabinet groups the relevant government areas and has the objective of designing public policies with a strategic view to reduce greenhouse gas emissions and generate responses for the adaptation of vulnerable sectors to the impacts of climate change. The institution that leads provincial action is the Federal Environmental Council.
However, the national administration is only constitutionally allowed to impose minimum standards of environmental protection, as each province has the competence to regulate in this regard. Consequently, there are currently no significant ESG guidelines or incentives for green projects that could affect mining activity. The main focus of provinces in relation to ESG standards concerns social participation in mining projects. In this regard, several mining jurisdictions, including Catamarca, Jujuy and Salta, have resolutions in place that oblige mining companies to allow affected communities to participate in the environmental impact assessment process.
Most companies implement their own guidelines and sustainability principles that follow international trends, which investors would expect to be met. This is an evolving trend that must be complemented with adequate indicators of compliance and monitoring according to domestic laws, customs and uses.
Closure and remediation process
What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?
According to the AMC, the environmental protection rules established by Law No. 24,585 are applicable to all those activities related to the closure of the mine. At a national level, there are no detailed specific rules for closing procedures. Only Annex III of the Complementary Rules of the AMC (which determines the contents of the EIR for the exploitation stage) establishes that an environmental management plan shall include: ‘Actions concerning the cessation and abandonment of the exploitation and post-closure monitoring’.
At a provincial level, and as a first mover, in 2016, the province of Catamarca enacted a regulation that foresees specific rules for closing procedures. It includes a guide to be followed for the preparation of a mine closure plan with technical and economical requirements to be submitted before the mining authority at the commencement of the mining activity and that should include a closure procedure for each stage of the mining project, which must be updated every two years once approved.
Under the AMC regime, no specific bonds, guarantees or assurances are required. However, Mining Investment Law No. 24,196, as amended by Law No. 25,161 (MIL), requires companies to allocate an annual amount to a reserve fund to finance prevention and remediation tasks. The amount of this reserve is left to the decision of the mining company. In addition, as a general requirement foreseen under Law No. 25,675, environmental insurance needs to be taken out by any company conducting activities that might involve a risk to the environment. The new Catamarca regulation provides the granting of guarantees and financial assurances.
In 2021, the National Secretariat issued Resolution No. 161/2021 approving the Guidelines for Mine Closure with Financial Guarantees in Argentina (the Guidelines). The Guidelines are defined to establish clear and homogeneous criteria and recommendations at the national level for planning the mine closure throughout the country. One of the most important remarks of the Guidelines is related to the need to establish financial guarantees in Argentina that shall be available throughout the life cycle of the mining project. It is relevant to note that these guidelines are not mandatory and therefore only constitute best practices. For more detail, see the aforementioned answer on the principal laws that regulate the mining industry.
Argentina is approaching a phase of large-scale mining projects coming to the closure stage. The first of these is the project related to the Bajo de la Alumbrera deposit, which began in 1994. Other major projects may follow in the coming years, including Mina Aguilar, Cerro Vanguardia and Veladero, but progress will be gradual. It is of crucial importance for the future development of the mining sector that a clear, comprehensive and suitable regulation for mine closure is developed.
Restrictions on building tailings or waste dams
What are the restrictions for building tailings or waste dams?
The construction and operation of tailings or waste dams are mostly subject to local regulations, which may vary from province to province. National regulations contained in the AMC establish certain general principles concerning technical conditions applicable to mining exploitation, although with a low degree of detail. As regards alarm systems and emergency drills, the AMC provides that in the event of an accident or whenever there is reason to fear that a serious accident might occur, the manager of the mining project shall notify the mining authority without delay. The mining authority will then decide the urgent necessary measures to be adopted to eliminate all danger or mitigate existing damage. At the same time, the mining company shall observe its own action plan for environmental contingencies, which shall be submitted and approved as a condition precedent to obtaining the relevant environmental permit. Again, in this respect, it shall be noted that specific requirements concerning emergency drills and responsibilities related to the rescue of people may vary from province to province since national rules do not regulate this. Further, according to the AMC, the relevant mining authority shall visit the mining projects (at least) once a year subject to its jurisdiction and, additionally, when it becomes aware of an accident or any violation of applicable regulations. Above this minimum, each provincial mining authority has its own inspection schedule that is managed according to its own criteria of opportunity and need.
Considering the recent accidents in Brazil, which have had an impact on safety procedures in the mining sector, revision of technical measures and proceedings could be something to be considered by local authorities as well.