EU Commissioner for the Environment
Dear Commissioner Potočnik,
In its relevant communications DG Environment has stressed that it is aware of the developments at Rosia Montana and that it is a matter of Romanian competence, as no permit has been issued and no environmental impact assessment (EIA) has been completed. The Romanian government must ensure that all relevant EU laws are met.
However, the Romanian government is unwilling to enforce relevant EU legislation. It approved a bill1 that seeks to declare the commercial mine proposal at Rosia Montana of overriding national interest so as to launch a fast-track expropriation procedure and to override the applicability of relevant laws; including EU directives. It is not a coincidence that the bill’s authors include Romania’s minister for the environment, Mrs Rovana Plumb and Daniel Barbu, the minister for Culture and those who otherwise would be an impossible situation to approve the mine proposal due to its inherent irregular nature.
In 2003 the EU Commission financed a 97.905,00 Euro PHARE contract No. RO 006.14.02.01 TA within the general scope of the EIA directive requirements as they apply to the Rosia Montana gold and silver mining project proposal; having as a beneficiary the RO ministry of environment. I should be grateful to receive your assurance of how these funds have ensured EIA directive requirements are enforced at Rosia Montana.
No environmental permit has yet been issued and no EIA has been completed, and the bill proposed by the Romanian Government for adoption by the Romanian Parliament represents a preliminary act to facilitate the issuing of the environmental permit for the Rosia Montana proposal, by “facilitating compliance” with a series of EU Directives. Annexed letter you will find a résumé detailing how the bill’s provisions aim to “help” the Rosia Montana project owner comply with a number of EU Directives. The provisions are discriminatory; they solely apply to the Rosia Montana project owner and are not based on generally applicable procedures adopted by the Romanian authorities in their attempt to fully transposed European legislation. By adopting these provisions, the Romanian authorities would infringe upon obligations assumed under European Directives. Since the Commission’s role is to see that all relevant EU law is enforced I hope that you will find scope to act vis-à-vis this bill and look forward to reading your reaction.
In June 2010 you decided not to act on the European Parliament’s (EP) overwhelming vote to ban cyanide-based mining in Europe2 stating that “… the Commission considers that a general ban of cyanide in mining activities is not justified from environmental and health point of views. Existing legislation notably on the management of extractive waste includes precise and strict requirements ensuring an appropriate safety level of the mining waste facilities. …, a general ban on cyanide use would imply the closure of existing mines operating in safe conditions. This would be detrimental to employment without additional environmental and health added value. … In addition, the Commission considers that the priority should be set on ensuring full application of the directive by the Member States. As guardian of the Treaty, the Commission intends to take all necessary measures within its remit to ensure that the directive is fully and correctly applied in practice.”3 However, the resolution adopted at the EP releated to new and not to existing mines. Meanwhile none of the comparable mines in e.g. Finland seem to fulfil the water framework directive, the new priority substance directive and the mining waste directive.4 And the Rosia Montana proposal is even far behind. Although the Finnish examples have problems with arsenic, uranium and other radioactive substances, heavy metals, cyanide, waste leaks, and toxic breakdown products, they are operative as per usual and operators are lobbying for lax laws.
In light of these worrying realities, I hope you will reconsider the EP’s resolution and ban cyanide in mining until member states can ensure the full and correct application of the directives that ensure the safety of our environment and health.
Alburnus Maior Association, Roșia Montană
A. Possible infringement of the Water Framework Directive
On the 24th September 2013 at the Joint Parliamentary Commission set up for the analysis of the draft bill proposed by the Romanian Government for the realization of the Rosia Montana gold proposal, Romania’s Minister for the Environment stated5 that:
"The Water Framework Directive, transposed into the Romanian legislation, states that you can’t deviate the natural course of a river except for a project of overriding public interest [...]As a consequence, we can’t continue the environmental impact assessment procedure in absence of a law that declares the project of being of overriding public interest."
The Rosia Montana gold mining proposal implies the deviation of a natural course of the Corna River to allow the construction of the tailing dam facility.
The draft bill proposed by the Romanian Government for the realization of the Rosia Montana gold proposal stipulates
The Rosia Monana mining project is declared a public utility and of national overriding public interest (article 3, point 2).
As a consequence, the act of declaring the Rosia Montana gold mine proposal as being of overriding public interest is a preliminary procedure adopted by the Romanian authorities in their attempt to apply the Water framework Directive in the environmental licensing procedure of the Rosia Montana gold mine proposal.
According to the Water Framework Directive (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy), Art. 5, point 7
Member States will not be in breach of this Directive when:
- failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or
- failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities
and all the following conditions are met:
(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;
(b) the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years;
(c) the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and
(d) the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.
Romania’s transposition of the Water Framework Directive is Water Law no 107 of 25 September 1996, which in Article 27 reproduces the provisions of Article 5, point 7 of the Directive. However, Water Law no 107/1996 does not stipulate for the competent authority to declare a project of being of overriding public interest and it does not stipulate a procedure needing to be followed by the competent authority when declaring a project of being of overriding public interest. In absence of such stipulations, the Romanian Parliament does not have the competence to declare a project of being of overriding public interest in order to comply with the provisions of the Water Framework Directive when deteriorating the status of a body of surface water.
As a consequence, the Romanian authorities are in a situation of infringement of the Water Framework Directive when declaring the Rosia Montana proposal of being of overriding public interest in the absence of a normative act establishing the procedure and the competent authority in line with the Water Framework Directive.
B. Possible infringement of the SEA Directive 2001/42/EC
According to the draft bill, Article 5 point II 3:
Provided they are necessary according to the law, the environmental impact assessment procedures regarding territorial managements plans and/or urban planning documentations for areas designated for mining projects will be carried out in a maximum 3 months from when the request is submitted for the issuing of the environmental avis, provided that all documents and information requested by the competent authority is submitted.
The severe time limit imposed for the strategic environmental impact assessment procedure for urban plans related to mining exploitations infringes upon the public’s right to participate in the decision making procedures, as stipulated by the SEA Directive, the SEA Protocol to the UNECE Convention on Environmental Impact Assessment in a Transboundary Context and the Aarhus Convention.
The Espoo Convention on EIA in a Transboundary Context – to which the EC has acceded - has been supplemented by the SEA Protocol. The SEA Protocol was adopted in Kiev on 21 May 2003 and subsequently signed by 36 States and the European Community. It entered into force on 11 July 2010.
The SEA Protocol is not limited to transboundary impacts from P&P; it is also concerned with impacts from P&P within a Contracting State. Once in force, it will require its Parties to evaluate the environmental effects of certain P&P.
According to the Protocol,
"strategic environmental impact assessment” means the evaluation of the likely environmental, including health, effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme.
Also according to the Protocol, Article 8 on Public Participation
1. Each Party shall ensure early, timely and effective opportunities for public participation, when all options are open, in the strategic environmental assessment of plans and programmes.
2. Each Party, using electronic media or other appropriate means, shall ensure the timely public availability of the draft plan or programme and the environmental report.
3. Each Party shall ensure that the public concerned, including relevant non-governmental organizations, is identified for the purposes of paragraphs 1 and 4.
4. Each Party shall ensure that the public referred to in paragraph 3 has the opportunity to express its opinion on the draft plan or programme and the environmental report within a reasonable time frame.
5. Each Party shall ensure that the detailed arrangements for informing the public and consulting the public concerned are determined and made publicly available. For this purpose, each Party shall take into account to the extent appropriate the elements listed in annex V.
The reduction of such a complex procedure to no more than 3 months from when the request for an environmental avis is submitted is obviously a significant reduction of time frames in which the public can participate in the strategic environmental impact assessment procedure and as such a violation of a fundamental principle stipulated by the Protocol.
A total period of 3 months for a strategic environmental impact assessment procedure cannot ensure timely and effective opportunities for the public to participate in all stages of the procedure and as such infringes upon the Protocol as well as on the principles of the Aarhus Convention.
C. Possible infringement of the European Environmental Liability Directive 2004/35/CE
The Draft bill proposed by the Government for the realization of the Rosia Montana mine proposes an annex which constitutes an agreement between the Government of Romania, on the one hand, and Gabriel Resources and Rosia Montana Gold Corporation on the other. The Agreement contains a set of conditions to be met by the Rosia Montana project owners in order to obtain the approval of the Rosia Montana project and to operate the mine.
In article 6 the agreement contains a set of environmental conditions to be met by the project owner, amongst which point 2 states:
e) full compliance with the provisions of Directive 2004/35/CE on environmental liability and of correspondent provisions in Romania, transposed into the Romanian legislation with Governmental Emergency Ordinance no. 68/2007 on environmental liability approved with Law 19/2008
f) the incorporation by RMGC of a guarantee for environmental liability presently estimated at 25 million USD through a mechanism agreed by the environmental protection authority; this guarantee is meant to cover the risk scenarios analyzed in the environmental impact assessment procedure; RMGC will periodically revise and adjust the environmental liability guarantee based on the on-going, at all moments and based on the project’s evolution.
The Romanian transposition of Directive no 2004/35/CE is Governmental Emergency Ordinance no. 68/2007 on environmental liability approved with Law 19/2008 which in Article 33 stipulates:
The definition of financial guarantees forms, including financial mechanisms in case of insolvency and the measures for the development of financial security instruments and markets, which would enable operators their use in order to cover their responsibilities under this emergency ordinance shall be established by Governmental Decision, at the proposal of central authorities for environmental protection and public finances, within 12 months from the entry into force of the present governmental ordinance.
To date, the Romanian authorities have not established generally applicable procedures to constitute financial guarantees for environmental liabilities, as is their duty according to Article 14 of Directive no 2004/35/CE and as assumed in the transposition act of Directive no 2004/35/CE. These procedures should be agreed upon with the EC Commission in order to ensure full compliance with Directive no 2004/35/CE. In absence of such procedures, the Romanian authorities cannot institute a procedure exclusively applicable for RMGC, as described in Art. 6, point 2 of the Agreement annexed to the draft bill for the realization of the Rosia Montana mine.