ISSUES OF ENVIRONMENTAL LAW IN THE DISPOSAL OF WASTE FROM TAILING DAMS AND OTHER MINING WASTES

• Jurisdiction: Derecho Internacional

MINING LAW & INVESTMENT IN LATIN AMERICA
(April 2003)
CHAPTER 19A
ISSUES OF ENVIRONMENTAL LAW IN THE DISPOSAL OF WASTE FROM TAILING DAMS AND OTHER MINING WASTES
Juan Carlos Urquidi Fell, Attorney At Law
Urquidi & Riesco y Cía
Santiago, Chile

1. LEGAL ENVIRONMENTAL FRAME IN FORCE IN CHILE

1.1 Political Constitution of the Republic (CPR)

In Art. 19, N° 8, the Chilean Constitution guarantees to every person "the right to live in a pollutant-free environment", adding that "it's the duty of the State to guard the preservation of nature and to conserve the environmental patrimony", and clarifying that "the law may set specific restrictions upon the use of certain rights or liberties to protect the environment".

By guaranteeing every individual, under the same Art. 19, N° 24, "the right of domain in its diverse modalities over all types of tangible and intangible goods", the CPR clearly states that "public health" and "the preservation of the environmental patrimony" are included among the causes that may give rise to the imposition - through the legal way - of limitations and obligations upon the right, given its social function.

1.2 Law 19.300. on General Basis of the Environment (LBMA). and Executive Decree 95/2002 MinSeGPres, Regulation on the Environmental Impact Assessment System (REIAS).

a) Juridical relevance of the list of activities and projects that should be subject to environmental impact assessment according to Article 10, LBMA, and Article 3, REIAS? None, except for operations and projects that are not subject to environmental impact assessment under express legal provisions, being consequently excluded from this process, or that are not subject to assessment because they do not meet any of the requirements provided by the applicable law to the effect.

The lack of environmental assessment of projects or operations, for the simple fact of not appearing in the legal list - such is the case, for example, of water exploration - does not release such projects or operations from eventual civil extra- contractual (tort) liability and/or any liability arising from the occurrence of environmental damage resulting from such operations or projects.

Environmental assessment - and the "environmental title" or set of rights arising therefrom - should be considered as intangible assets which are part of a company's

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patrimony and in no case as something that should be bypassed or omitted. The pppppossibility of "acquiring environmental rights" is currently indeed cheaper, faster and more possible than what lies in the near future. The globalization and increasing inclusion of new countries into global economy has increasingly evidenced the relative scarcity of certain natural elements, on which account certain rights and goods which until recently were found for free have righteously started to have a price (and thus, the need for juridical protection).

1.3 Types of environmental assessment and legal vehicles for its execution or implementation

The environmental feasibility of any project or activity simultaneously faces three work fronts during the environmental assessment process:

i) Technical analysis;

ii) Juridical analysis;

iii) Political (social) analysis by the community.

i) Environmental assessment of a technical nature

Carried out by the Technical Committee of the COREMA, it essentially relates to "material" or "physical" impacts of the project or activity. Generally, analyzes the expected magnitude of eventual impacts on the bio-diversity directly associated to the project's or activity's surroundings (area of influence), the biological, geological, and hydrical aspects, and equally the issues associated to fumes, seepage, effluents, and discharges into the environment in general, and specially into water and air environments ("theory of immissions").

This assessment starts with the formal submission of an Environmental Impact Study or Statement and concludes with the delivery by the Technical Committee to the CONAMA/COREMA (agency responsible for the political and social-cultural assessment) of a report recommending the approval or rejection of the specific project or activity, taking into account the actual degree of compliance or non-compliance of the applicable technical regulations by such specific project. This report, essentially technical, constitutes a mere recommendation and is in no event obligatory for the polical-institutional level formed by the CONAMA/ COREMA.

ii) Environmental assessment of a juridical nature

It is not directly performed by any instance or authority under the new environmental institutionality, even though during the assessment there is a for- mal examination of compliance with the legal requirements on the project.¹

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The "onus probandi" or "burden of proof" in sanitary and health legislation compliance issues solely bears upon the "applicant" or "holder of record" of the project or activity. Such applicant or holder shall always keep a position of being capable of demonstrating to the sectorial authorities and/or properly environmental authorities, in addition to the community, that it is in actual compliance with all the legal provisions in effect and applicable to the specific activity in question.

iii) Environmental assessment of a political (social) nature by the community

This is the most complex component of the entire environmental impact assessment and perhaps the aspect that requires the firmest juridical certainty in the respective study and report on its constituting rights. In particular, actual...