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CYANIDE REGULATIONS
a request for an arbitration panel to review whether it had been denied its investment, and sought $50 million from the U.S. for California's actions.
Glamis Gold also
alleged that California's Senate Bill 22 and other regulations had violated NAFTA, Section 11, resulting in expropriation of its investments, and denial of minimum stan- dard of treatment under international law. Section 11 requires NAFTA parties to afford investors "national treatment," which means to comply with international law— including fair and equitable treatment—in dealing with their investments, and to refrain from acting in a manner that either expropriates their property or is tantamount to an expropriation without compensation. In 2009, the NAFTA Tribunal dis- missed Glamis Gold's claim in its entirety and ordered the company to pay two-thirds of the arbitration costs in the case.
Country-specific Regulations on Cyanide
Argentina has become an active region for gold prospecting and mining. Because of fears about cyanide, its use in mines has been heavily regulated or even banned. The impetus for these restrictions is in part because America has successfully "exported" environmental concerns about cyanide practices. For example, Green- peace has spread the proverbial "fear of God" in many of the Argentinean pro- vinces about cyanide.
As a result, many provinces in Argen- tina banned the use of cyanide in mining operations. At one time, these included the provinces of Rio Negro and Chubut,
Tucumán, La Pampa, Córdoba, San Luis, and La Rioja. In Provincia de Río Negro, the legislature passed a bill in 2005 ban- ning cyanide and mercury use in metallic minerals mining, production, and industri- alization. In Provincia de Chubut, the province enacted a moratorium on open-pit mining and cyanide mineral leaching oper- ations in 2003.
These flat bans are being challenged as unconstitutional. Some Argentine mining lawyers have argued, in some cases suc- cessfully, that provincial bans on cyanide leaching are unconstitutional because they conflict with Section III of the Argentine Constitution. Several of these bans, howev- er, remain in place. Citing the cyanide spills of Summitville, Zortman, and Romania, many South American countries remain wary of cyanide.
Costa Rica has banned cyanide. In 2010, the president signed a decree completely banning all open-pit mines and cyanide mineral leaching operations. The ban was motivated by environmental degradation and a repeated failure to operate and control cyanide leaching facil- ities safely.
Europe has been resisting the idea of a complete ban, but it has a very low thresh- old of tolerance for cyanide use. The European Union (EU) has set the most stringent cyanide limits for tailings ponds in the world—Adopted Directive 2006/21/EC, on the management of waste from mineral extraction operations. Article 13(6) requires "
." All mines start-
ed after May 1, 2008, may not discharge waste containing more than 10 ppm WAD cyanide, and mines built or permitted before that date are allowed no more than 50 ppm initially, falling to 25 ppm in 2013 and 10 ppm by 2018. Article 14 also requires that mine operators put in place financial guarantees to ensure cleanup after the mine has finished. In 2006, the EU rejected a proposal to ban all cyanide use. The EU presumed that stringent regulations already in place pro- vide adequate environmental and human health protection.
Germany passed a decree in 2002 pro- hibiting mines from using cyanide leach- ing processes. The Czech Senate of August 2002 and Czech Parliament of September 2000, made decisions to for- bid gold production through cyanide leaching in the Czech Republic domain (Mining Law of 1991, Article 30). In 1997 the Turkish Council of State decid- ed not to allow gold production through cyanide leaching, on the basis of article 56 of the Turkish Constitution, which guarantees the right of people to live in a healthy environment. Hungary bans the use of cyanide at mine sites.
The Future of Cyanide Regulation in the U.S. Will cyanide eventually be outlawed in the U.S.? The EPA is very interested in mer- cury contamination, which is a byproduct of some metal mining operations. It may turn its sights on cyanide next. Colorado is still considering a ban. Other states besides Montana might consider bans if there are any more Summitville or Zortman incidents. Mine operators should make cer- tain that there are no more Summitville or Zortman cases, and be particularly careful to protect wildlife and the environment when using cyanide. Nothing will stop commodity-extractive industries faster than harmed wildlife—almost more so than the loss of human life. If wildlife is impact- ed by a mining operation, the regulatory forces will stop it cold. And, if there are any more disasters like Summitville or Zort- man, there will be more bans.
E&MJ; Extensive planning and safety protocols are undertaken to transport cyanide briquettes. 40 E&MJ; • FEBRUARY 2012 . www.e-mj.com
best available techniques
acid dissociable cyanide in the pond [be] reduced to the lowest possible level using
the concentration of weak
Jan Laitos holds the John A. Carver on his presentation at
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Chair at the Sturm College of Law at the University of Denver
Processing conference in October 2011 at Lake T
hoe, Nevada, USA
. This article is based '
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