PERU – ENVIRONMENTAL REGULATION
Peru, officially the Republic of Peru, is located in western South America, and is bounded by Chile and Bolivia to its south, Ecuador and Colombia to its north and Brazil to its east, with the Pacific Ocean on its western coastline. With an area of 285,216 square kilometres, Peru is South America’s third largest country. The majority of Peru’s territory is covered by the tropical rainforest of the Amazon Basin with the Amazon River (the source of which lies in the Peruvian Highlands) spreading eastwards through the north of the country towards Brazil and the Atlantic Ocean. The Central Sierra (highlands) is dominated by the Andes, which span the western side of South America forming the world’s longest mountain range; this area separates the rainforest from the country’s coastal region, a narrow and largely arid plain. Due to this varied landscape, Peru has a large diversity of climates but is broadly considered to have a tropical climate with wet and dry seasons.
As with several of its fellow South American countries, Peru is recognised as one of the world’s mega-diverse countries and its varied geography and climate result in high levels of biodiversity, especially in the Amazon Basin region. Peru has the largest number of bird species and the third largest number of mammal species in the world and is home to over 20,000 species of plants and animals, with 5,528 species of plants and 760 animal species endemic to the country (World Wildlife Fund). Notable species include puma, jaguar, spectacled bear, pink river dolphin, yellow tailed monkey, spectacled caiman, black caiman, tundra peregrine falcon, and various species of albatross, frigatebirds and boobies, including the rare blue-footed booby. Peru’s marine life is equally rich thanks to the combining Humboldt and El Niño ocean currents. Numerous species of sharks, whales and dolphins, as well as seals, turtles and rays are all known to inhabit the country’s waters.
Environmental challenges in Peru include pollution of both air and water; extremely high rates of deforestation due to illegal logging and agricultural expansion; and over-fishing. That said, the Peruvian government has made concerted efforts to combat these issues, particularly deforestation and pollution and numerous regulations, laws and policies have been developed as part of such efforts. As Peru has progressed in its development, its focus on environmental matters has increased concomitantly. Today, its environmental standards in the natural resource sector are, without doubt, some of the most detailed and expansive in the world.
PRINCIPAL LEGISLATION AND REGULATION
Peru has numerous environmental laws and regulations of importance in the natural resources sector. Key among these are: the General Environmental Law (28611-2005) (GEL); the Environmental Impact Assessment (EIA) Law (27446-2001); the Environmental Impact Assessment Regulation (Supreme Decree 019-2009); the Environmental Regulation on Exploration Activities (020-2008-EM) (EREA); the Environmental Regulation for mining exploration activities (020-2008-EM); and the Regulations on the Protection and Environmental Management for exploitation, operation, general labor, transportation and storage (040-2014-EM).
The competent environmental authority for the approval of the environmental certificate will be determined by the level of environmental impacts that the activity could generate. Depending on said environmental impacts, the competent authorities are the following:
- The National Environmental Certification Service for Sustainable Investments (“SENACE”) which approves the Detail Environmental Impact Assessment (“EIA-d”);
- The Ministry of Energy and Mines which approves the Semi-detail Environmental Impact Assessment (“EIA-sd”); and,
- The Regional Government which approves the Environmental Impact Statement (“DIA”).
For mining and mineral exploration, the relevant authority is the Ministry of Energy and Mines (Ministerio de Energía y Minas (MINEM)) through the General Directorate of Mining Environmental Affairs (Dirección General de Asuntos Ambientales Mineros (DGAAM)), Organismo Supervisor de la Inversión en Energía y Minas (OSINERGMIN) and Organismo de Evaluación y Fiscalización Ambiental (OEFA) are the entities in charge of supervising the development of energy and mining activities. The first one has monitoring and sanctioning powers over mining activities regarding technical matters whilst OEFA has the same powers regarding the supervision of environmental matters. The MINEM plays a major role in the policy making of the energy and mining sector; along with other authorities it also leads the environmental certificate approval procedure. In addition, specific regulations have been approved regarding EIA procedures, comprehensive procedures for citizen participation, and detailed regulations for closure certifications
According to the GEL, every human activity that involves buildings, works, services and other activities that are likely to cause environmental impacts of a significant nature must be subject to an environmental impact assessment process (Art. 24.1). The EIA must outline the proposed environmental impacts and indicate the measures that will be adopted to ensure that any damage falls into tolerable levels. According to the EIA Law, projects are to be classified into those that do not cause significant negative environmental impacts (Category I), those that can cause moderate negative impacts, but whose effects can be mitigated or eliminated (Category II) and those that can produce significant, negative impacts (Category III).
An environmental impact statement (EIS) is required for a Category I project; an Environmental Impact Assessment – Semi-Detailed Study (EIS) is required for a Category II project; an Environmental Impact Assessment – Detailed Study (EIS) is required for a Category III project (Art. 11, EIA Law). The process in all cases involves an application, followed by categorisation, submission of EIS, review of EIS, decision and monitoring. After application, classification will be done within 45 days (Art. 8, EIA Law). Along with the EIS, the proponent of a Category II or III project must also prepare a management plan, contingency plan, compensation plan, abandonment plan, citizen participation plan and a monitoring plan (Art. 27, EIA Law). Any project involving the resettlement, displacement or relocation of settlements is classified as Category III (Art. 38, EIA Law). A new Bill would affirm that all mining projects are Category III projects (Draft Art. 22).
Peruvian environmental regulations state that all human activities involved in the development of construction, works, services and other activities that may potentially cause environmental damages, must be carried out under the provisions of an environmental certification, duly approved by the competent authority. In order to obtain such certification, titleholders of mining projects shall obtain the approval of an environmental instrument which describes the most relevant environmental aspects of the areas where the project will be developed, the expected environmental impacts that might arise as a result of the activities and the implementation of the necessary measures to avoid or reduce the possible damages to acceptable standards.
Each stage of the mining exploration or exploitation activities requires a specific type of authorization or consent, beginning with an application for an environmental consent in order to develop exploration activities and continuing with a more complex certification in order to carry out exploitation activities, which includes, among other requirements, holding public hearings.
According to the mining and environmental regulations, the main competent authority in environmental matters is the MINEM. However, SENACE has gained a main role in this matter since the end of 2015, when it became the competent authority in charge of the approval of the EIA-d on large-scale mining projects. OEFA is also responsible for supervising certain environmental obligations.
According to Article 11 of the GEL, no project that could threaten or present a risk of extinction of any species, subspecies or variety of flora or fauna should ever be approved (Art. 11(c)). Pursuant to the Regulation of Citizen Participation in the Mining Sector (028-2008), the execution of exploration and exploitation activities entails the development of citizen participation mechanisms prior to the presentation of the environmental instrument. During the public participation phase, people will be entitled to access the environmental instrument and submit observations and comments relevant to its content.
There are no environmental requirements for reconnaissance activities, which are defined as:
- Prospecting activities that cause no alteration (or only slight) alteration to the surface, such as geological, geophysical, geochemical, surveys, collections of small amounts of samples of rocks and minerals and other surface activities using instruments or equipment that can be carried by hand without causing disruption, but
- Not including pits and trenches
(Art. 19, EREA). Otherwise, an environmental licence is mandatory in order to carry out exploration and mining activities.
EREA differentiates between two (2) groups. Group I involves mining exploration activities that comprise any of the following: (i) a maximum of 20 drilling platforms; (ii) a disturbed area of less than 10 hectares considering drilling platforms, trenches, auxiliary facilities and access means; and (iii) the construction of tunnels with a total maximum length of 50 meters. Holders of these projects must submit a DIA before the MINEM (regional bureau), which is subject to an automatic approval upon its filing, and subject to a subsequent (ex post) review by said authority.
However, the project will not be subject to an automatic approval, if: (i) it is located in a protected natural area or its buffer zone, (ii) it is oriented to determine the existence of radioactive minerals, (iii) the platforms, drill holes, trenches, tunnels or other components are located within certain environmental sensitive areas specified in the applicable regulations (e.g., glaciers, primary forests, etc.), or if (iv) the project covers areas where mining environmental liabilities or non-rehabilitated areas, already exist.
Projects under Group II involve mining exploration activities that exceed any of the foregoing thresholds. These projects require an EIA-sd approved by MINEM. The evaluation process of the EIA-sd takes approximately fifty-five (55) days as from the submission of the corresponding application.
Holders of mining rights performing mining exploration shall conduct remediation works of disturbed areas, as part of the progressive closure of the project. They shall outline those final closure and post closure actions in the terms and conditions set forth in the approved environmental instrument.
The environmental certification will lapse if within three (3) years after its issuance, the titleholder has not initiated the project implementation. This period may be extended by an additional two-years (Art. 57, Environmental Impact Assessment Regulation).
No exploration activity can traverse wetlands or wetland, with access roads, or cause the placement of materials, waste or other matter or substance on them. (Art. 11, EREA). According to Article 24 of EREA, any pilot plant will be treated under Group II. Article 26 compels the holder to start its exploration activities over a period not exceeding twelve months from the date of issuance of the resolution approving the environmental study, otherwise the licensee must resubmit its EIS for a new approval.