Over the next few years, Europe will open new mines across the continent to try to meet the 10% mining benchmark under the Critical Raw Materials Act. But are Europe’s mining rules up to the job?
T&E commissioned a legal analysis of the 2006 EU Extractive Waste Directive to find out. Whilst Europe often claims to have the highest environmental and social standards globally, this cannot be said for its mining waste rules. On a continent where mining has been declining for decades, mining rules in Europe are now outdated and, in some areas, below those of other countries such as Brazil and China.
One clear finding of the legal analysis is that there is a significant risk of fragmentation in the implementation of the directive, with many key provisions not clarified and left at the discretion of the Member State. E.g. It is unclear who is responsible in case of accidents or damage, and how strong or regular prevention and monitoring planning should be. Another major finding is that the best available techniques, such as filtered tailings that remove moisture from waste before storing it, therefore making it more accident-proof, are not mandatory and left at the discretion of the company. In addition there appears to be insufficient protection of the environment and local communities.
Given all this, T&E calls on the new Commission to update the Extractive Waste Directive, in particular:
Turn the directive into a new European Extractive Waste Regulation. This would ensure harmonised implementation across Member States. With the Critical Raw Materials Act also opening the door to Remining in Europe, it is the right moment to strengthen European rules on waste for new mines and use the opportunity to integrate rules on remining.
Mandate best available techniques. A new European Extractive Waste Regulation should mandate companies to implement the safest tailings storage and monitoring techniques, building on the expert knowledge and guidelines established with the BREF document related to the management of extractive waste. This is not only a win on the environmental and safety side, but also something that can reassure communities living close to mining sites.
Base the revision on the Safety First Guidelines. These guidelines, which were written by global mining experts, civil society and academics and have been endorsed by over 100 organisations, explain in detail how tailing sites should be designed, managed and closed and set out key financial and governance provisions that should be put in place. On top of this, environmental protection and community safety measures should be strengthened and streamlined across the new regulation, for example by expanding and harmonising the definition of environmental damage.The current definition, taken from the Environment Liability Directive, is limited and could for example be broadened by including the interests of future generations.
Ensure community participation, from the offset and throughout a project. As explained in the legal analysis published alongside this briefing, community involvement is a fundamental right and step. Communities must be warned in case of accidents, as well as being consulted before, during and after a mine site is operational, and on the design and management of the tailings.
