1. Introduction

As it’s generally known, mining is one of the most significant activities carried out in Argentina and has been declared an activity of “national interest” by the National Constitution of 1852.

The importance of the mining sector is reflected in the high amount of metals used and exported as well as in the increasing investments in exploration and exploitation projects over the past years.

Besides, the mining sector also plays a major role in the development of local communities, providing genuine job opportunities, contributing to the development of infrastructure projects, and benefiting the government through local taxes and royalties.

Thus, the performance of sustainable mining requires the joint effort of the federal government, the provinces, and the mining companies. The federal government should implement the appropriate measures to promote sustainable mining projects^[1] and enact the laws on minimum standards concerning the protection of the environment. Provinces should in turn pass the laws and regulations supplementing the minimum standards and control exploration and exploitation activities.

As regards the mining companies, they must carry out exploration and exploitation activities in accordance with the applicable environmental laws, regulations, and standards, briefly described below.

2. Applicable environmental laws and regulations

The Federal Mining Code (FMC), the General Environmental Law No. 25,675 and the Complementary Title of the Environmental Protection for Mining Activity of the FMC -as amended by Law No. 24,585- are the most important pieces of legislation. Also, a wide range of provincial supplementary regulations, establishing higher standards, apply to the mining industry. These are referred below.

2.1 The Complementary Title of the Environmental Protection for Mining Activity of the FMC, as amended by Law No. 24,585

Law No. 24,585 sets out the most important rules of environmental protection concerning the mining sector, including the following:

• Individuals or companies aiming to perform exploration or exploitation activities must file for an environmental impact study (EIS) with the enforcement authority.
• The EIS should meet the standards provided in Law No. 24,585 and its supplementary regulations.
• The mining activity can be conducted after the enforcement authority has issued an environmental impact declaration (EID) authorizing the development of the proposed activities.
• The EID is issued for two years and often subject to certain conditions that must be complied with to remain valid.

Likewise, the General Environmental Law No. 25,675 sets forth the obligation to conduct EIS with regards to any activity that may affect the environment and establishes the obligation to hold public hearings prior to the authorization of such activities.^[2]

2.2 Law 26,639 on Minimum Standards for the Protection of Glaciers

Law 26,639 on Minimum Standards for the Protection of Glaciers was enacted and published in the Official Gazette in October 2010, which main aspects can be summarized as follows:

• Minimum standards for the protection of glaciers and periglacial environments are established to preserve them as strategic reserves of water, as a source of scientific information, and as a tourist attraction.
• Glaciers are considered public goods.
• A National Inventory of Glaciers was created. This inventory includes all glaciers and periglacial geological formations considered to be water resources.
• Certain activities are prohibited on glaciers including mining and hydrocarbon exploration and exploitation. These restrictions are also applicable to the activities performed in a periglacial environment.
• Activities subject to prohibition mentioned before that were already carried out when the National Glacier was passed, must undertake a new environmental audit regardless of any environmental license or authorization already granted. If such audit shows that a glacier or periglacial environment is significantly affected, the enforcement authorities are instructed to establish measures to comply with the Glaciers Protection Law. Such measures can comprise the termination or relocation of the mining activities, as well as clean-up or remedial actions.

2.3 Federal regulations concerning environmental insurances and guarantees

As a general rule, the General Environmental Law. 25,675 and its supplementary and amending regulations establish that any company carrying out an activity that might involve a risk to the environment should obtain an environmental insurance.

Moreover, the Mining Investment Law provides that mining companies must allocate an annual amount to finance potential preventive or remedial actions. Such an amount is determined by each mining company considering the potential impacts of the mining project.

2.4 Guidelines concerning the mine closure

On June 10, 2021, the National Mining Ministry (the "Resolution") issued the Resolution No. 161/2021, approving the "Guidelines for the mine closure and the financial guarantees in Argentina” (the “Guidelines”).

The purpose of the Resolution is to establish a uniform criterion for the responsible closure of the mines operating in Argentina, and, consequently, the provinces are summoned to adopt the Guidelines.

The mine closure is defined as a complex process, which involves environmental, social, economic, financial, and engineering aspects. The closure plan must pursue the rehabilitation of the site in accordance with i) levels compatible with those of a healthy environment, ii) applicable technical standards, and iii) the quality guides for air, water and soil, established in the local laws and regulations. The rehabilitation must also guarantee the physical and geochemical stability of the site, the safety conditions of the people involved, and the socio-economic transition of communities.

The mining projects must consider formal closure plans as from the exploration or exploitation activities as well as the necessary funds to implement them.

To ensure the closing activities above mentioned, the Resolution requires the constitution of a financial guarantee and expressly lists those available in the national market, such as, guarantees on first demand, pledged deposits, surety insurance, guarantee trusts, bonds, among others.

2.5. Guidelines for the Appropriate Management of Mining Waste

On June 24, 2021, Resolution No. 181/21 issued by the National Mining Secretariat, approving the “Guidelines for the Appropriate Management of Mining Waste” was published in the Official Gazette.

The resolution is enacted in accordance with the “Strategic Plan for Argentine Mining Development” and establishes guidelines for the appropriate management of the mining waste throughout the mine life cycle and provide a framework for its uniform and coherent implementation. The resolution defines mining waste as the solid sludges resulting from the exploration and/or exploitation of a geological resource, such as sterile waste, gangue minerals, and those minerals stemming from the treatment, transformation and smelting processes, including the tailings and the topsoil if they are classified as waste or contaminated soil under the local laws and regulations.

Moreover, this resolution highlights the need to create a “Mining Waste Management Plan” to prevent, reduce, reprocess, reutilize, valorize, treat, and adequately dispose of mining waste in accordance with the applicable environmental principles, namely the precautionary principle, the intergenerational equity principle, and the proximity principle.

In addition, the resolution also highlights the importance of the waste’s valorization to achieve a so-called “circular economy,” which includes the reutilization, recycling, transformation, or reuse of mining waste.

Finally, the resolution does not have administrative or regulatory nature and, therefore, it must be adopted by the provinces to be effectively enforced.

2.6 Provincial regulations

According to article 41 of the National Constitution, the federal government must issue the laws containing the minimum standards on environmental protection while the provinces must pass the laws and regulations to complement such standards and implement them.

In this regard, a plethora of environmental regulations concerning the management of hazardous waste, the disposal of liquid effluents, the monitor of air emissions and the protection of biodiversity, apply to the mining industry.^[3]

3. Final thoughts

According to what has been stated, mining activities can be performed in a sustainable manner, complying with all the environmental regulations mentioned before.

In that way, the performance of sustainable mining will not only benefit mining companies but also local communities -both in the short and long term- by increasing the access to employment, higher incomes, as well as contributing to improve the wellbeing and prosperity of the communities, among other positive social aspects.

_{^[1] The Sustainable Development Goals adopted by the United Nation are the following: (i) no poverty; (ii) zero hunger; (iii) good health and well-being; (iv) quality education; (v) gender equality; (vi) clean water and sanitation; (vii) affordable and clean energy; (viii): decent work and economic growth; (ix): industry, innovation and infrastructure; (x): reduced inequality; (xi): sustainable cities and communities; (xii): responsible consumption and production; (xiii): climate action; (xiv): life below water; (xv): life on land; (xvi): peace and justice strong institutions; (xvii): partnerships to achieve the goals. See https://www.undp.org/sustainable-development-goalsm, last visited on 02.18.22.}

_{^[2] As regards the joint application of Law No. 24,585 and the General Environmental Law No. 25,675 see the decision adopted by the Supreme Court in the case “Villivar, Silvana C. Provincia de Chubut y otros”, 04.17.07, pag. 7 and 8 available at https://sjconsulta.csjn.gov.ar/sjconsulta/documentos/verDocumentoById.html?idDocumento=6249631.}

_{^[3] For instance, the following laws and regulations apply at the provincial level: Water Code approved by Law No. 4,392 passed by the Province of San Juan; Hazardous Waste Law No. 6,665 passed by the Province of San Juan; Law No. 5,824 passed by the Province of San Juan and supplementary regulations concerning the protection of water resources; Hazardous Waste Law No. 3,742 passed by the Province of Chubut; Hazardous Waste Law No. 4,865 passed by the Province of Catamarca; Water Code Law approved by Law 2,577 passed by the Province of Catamarca and supplementary regulations; Hazardous Waste Law No. 2,567 passed by the Province of Santa Cruz and supplementary regulations; Water Resources Law No. 1,451 passed by the Province of Santa Cruz, amending and supplementary regulations.}