On November 25, 2023, Supreme Decree N° 031-2023-EM was published in the Official Gazette “El Peruano”, approving the Regulation of Law N° 31211, Law that provides for the adequacy of transport and final disposal of tailings to companies engaged in mining-metallurgical activities (the “Regulation”). The most important aspects of the regulation are as follows:
– Protection mechanisms are approved for the transport and final disposal of tailings, within which we find the following (the “Protection Mechanisms”):
– The transported material must not come into direct contact with the soil, nor infiltrate into the subsoil and/or reach natural watercourses (surface and subway).
– A contingency system should be in place for situations of leaks and/or spills.
– The final disposal of tailings should consider measures such as control and management of seepage, control and maintenance of the water balance, control of spills in general and cleaning of these and control and management of contact and non-contact water, etc.
– The measures implemented should prioritize the physical, chemical and hydrological stability of the tailings deposit.
– The provisions of the Regulation are applicable to (i) mining owners that carry out tailings transport and/or final disposal activities foreseen in an Environmental Adjustment and Management Program – PAMA or in an Environmental Impact Assessment – EIA and/or modifications approved prior to the enactment of Law N° 27446, Law 27446, Law of the System System of the Mining Industry. N° 27446, Law of the National System of Environmental Impact Assessment (“SEIA Law”); and, (ii) mining owners that carry out tailings transport and/or final disposal activities provided for in an environmental management instrument (“IGA”), approved after the SEIA Law, but do not contain the Protection Mechanisms. For this purpose, the mining owner must carry out the corresponding internal verification of the content of its IGA.
Mining owners, as previously indicated, must comply with the following:
1. Communicate to the competent environmental authority, within a maximum period of 30 calendar days, counted from the entry into force of the regulation (i.e., November 26, 2023), the description of the current tailings transport system contemplated in the IGA and whether it complies with the Protection Mechanisms regulated in Article 5 of the Regulation.
2. The mining owners that do not have the Protection Mechanisms in their IGA, must submit to the competent environmental authority -within a maximum period of 90 calendar days from the entry into force of the Regulation- the respective IGA of adequacy, according to the significance of the impacts and risks.
3. Once the IGA of adequacy has been approved and in the corresponding cases, the mining owners must submit the request for authorization of modification of the concession of benefit to the General Directorate of Mining or Regional Government.
4. Notwithstanding the above, the mining owners must review every six months the contingency plan, in relation to the tailings transport and disposal system; and, if appropriate, optimize such plan. This will be incorporated into the IGA, in its next modification or update, as appropriate, or when required by the environmental supervisory authority through an administrative measure, as the case may be.
For further information, please contact Francisco Tong (ftong@estudiorodrigo.com), Francisco Barrios (fbarrios@estudiorodrigo.com) and/or Diego Pachas (dpachas@estudiorodrigo.com).
