Certej – Environmental permitting – lack of transparency and procedural irregularities

In August 2010 European Goldfields announced on the Toronto Stock Exchange website the submission of documentation to the competent authorities in view of obtaining the environmental agreement. This new procedure was related to the environmental impact assessment for the entire mining project proposed for Certej. The mine, screened as having significant impact , rested under the regulating competence of the Regional Environmental Protection Agency Timişoara until this institution was reorganised in October 2012. Romania, in its capacity of country of origin and signatory of the Espoo Convention, undertook the transboundary consultation procedure through the Ministry of Environment and Forests (MMP).

As shown on the institution’s web page, MMP notified Hungary and Serbia as countries potentially affected by the project progress and sent them the documentation in September 2009. In March 2010 Hungary and Serbia sent back to the Romanian ministry comments and recommendations on the documentation received. Between August 2010 – February 2011 DEVA GOLD submitted to the MMP the environmental impact assessment documentation and its subsequent additional information (hereinafter referred to as the EIA documentation) and the ministry sent it to Hungary and Serbia to be made available to the public and the national authorities. According to Art. 3 point 8 of the Espoo Convention, Serbia requested Romania’s participation in a public debate meeting on their country territory, while Hungary requested two public debate meetings followed by participation in a round of consultations between authorities. Therefore two days of public debates followed:

– on 16 September 2011 in Novi Knezevac, Serbia;

– on 27 and 28 September 2011 in Budapest and Szeged respectively, in Hungary;

Romania’s final response to Serbia was notified in November 2011. The consultations reunion with Hungarian authorities was held in Timişoara, on 8 December 2011. Hungary sent their final opinion on the Certej mining project in February 2012.

On 5 July 2012 the Regional Environmental Protection Agency Timişoara issued the environmental agreement no. 8 for the mining of gold-silver ores in Certej perimeter. Although this is an information of public interest, its publishing on the institution’s website was unjustifiably delayed. Therefore the organisations who monitor the permitting process of mining projects in Romania learned about this permit only at the beginning of September . They reported that the issuance of the environmental agreement for the Certej project creates an extremely dangerous precedent for Romania , arguing that the Certej mining project is similar to the Roşia Montană one in terms of their devastating impact upon the environment, legality flaws, the shareholders’ network, namely the owner companies, and as such raised serious criticism from environmental protection organisations in Romania over the years.

Although the Regional EPA in Timişoara is subordinated to the Ministry of Environment and Climate Change (MMSC), the minister of environment, Rovana Plumb, maintained that she only learned about the issuance of this environmental agreement at the beginning of September. An article published in Gândul noted that “one of the current counsellors of minister Plumb, Georgeta Barabaş, was previously director of the Environmental Protection Agency Deva, in the very same county where the Certej project is located’.

However the first public statement of minister Rovana Plumb on this matter was made after the national media took over the news sent by environmental NGOs regarding the environmental agreement issuance. Kamikaze magazine reports on this subject: “The Ministry is thunderstruck. Minister Rovana Plumb was taken by surprise by this news, which she says she learned from the media. She promptly announced that she requested the removal of director Lambrino for not having informed the ministry and that she sent a control team to check the legality of the agreement itself’.

Shortly afterwards the minister’s media statements became more numerous and culminated with her declaration at the end of the meeting with Janez Potocnik, European Commissioner for Environment. Rovana Plumb stated then that the environmental agreement for the Certej gold mining project “is illegal and breaches European norms”. Only a few days before prime minister Victor Ponta had requested the minister to take measures to ensure that environmental regulations are complied with, maintaining that the problems are generated by the former PDL government who “would give any permit for a bribe”.

The minister of environment announced that she requested the Commission for Discipline to undertake an administrative investigation regarding all the persons involved in the issuance of the environmental agreement, either on behalf of the Ministry of Environment or of the Regional Environmental Protection Agency. However the ministry has never disclosed any information on the investigation results or any necessary measures identified by that commission.

During the same period ANPM (the National EPA) brought an application at the Court of Appeal for cancellation of the environmental agreement issued by the Regional Environmental Agency in Timişoara for the Certej mine. Rovana Plumb announced the media that she had informed local authorities about the two directives breached by the environmental agreement issued – the Birds Directive and the Habitats Directive as well as other European regulations.

The environmental agreement for the Certej project was issued although the mining project footprint would overlap with 108.7 hectares of the Natura 2000 site ROSPA 0132 Metaliferi Mountains, along Măcrişului Valley. This surface represents about 0.4% of the site surface. The site has 26,671 hectares in all. The Natura 2000 site ROSPA 0132 Metaliferi Mountains was designated in 2011. The nearest Natura 2000 site is ROSCI0029 Glodului, Cibului and Măzii Gorges, about 7.8 km east from the project. The conclusions of the report “Assessment of the cumulated impact of the Roşia Montană and Certej project and the consequences of simultaneous accidents with potential transboundary effects” indicate that the maximum values of pollutant concentrations in air and of cyanides in water are: ‘(1) Much lower than the concentration and/or duration of exposure which could affect population, birds and other terrestrial species and (2) Safe for the aquatic flora, which can resist to exposure to much higher concentrations and longer durations than those of the cyanide levels predicted for the river water, even in the case when the spill occurs in low water flow rate conditions.”

The insufficient underlying documentation for the agreement relates to the absence of studies and impact assessments for biodiversity, as per the Habitats Directive and the Birds Directive, or the absence of any assessments of the area’s archaeological potential and the health condition of local population with respect to hazardous substances. The insufficient analysis of the impact of an accident upon biodiversity, limited to the capacity of each species to resist and regenerate, was also contested. CIDRM announced in the same press release that they would bring an action in court against the issuing authority for the cancellation of the act.

– Some sections of the Report on the Environmental impact study “Mining of gold and silver ores in the Certej perimeter” (the EIA report) were prepared by persons who were not certified to prepare environmental impact assessments as per national legislation;

– The CIL tailings dam proposed would not be made impervious and as such it would not comply with Directive 80/68/EEC on groundwater protection against pollution with certain hazardous substances;

– The EIA Report fails to describe the environmental media potentially affected by the project implementation, as per all legal provisions applicable to the protection of biodiversity, human settlements and the archaeological heritage;

– Although it is estimated that the hydrocyanic acid (HCN) emissions from the CIL tailings dam surface (page 53) would be 2200 kg/year, while the emissions from the processing plant (page 49) would be 1743 kg/year, the impact of these emissions upon air quality and hence upon human health is not assessed, particularly in the given relief conditions which allow for the massive accumulation of pollutants in valleys. The report also fails to estimate the long term post-closure emissions of this toxic gas (Annex IV) from the tailings dam surface, considering that the tailings dam with cyanides can generate such emissions for decades after the end of the mining operations;

– No analysis has been undertaken regarding the project impact upon the flora and fauna species which depend on the wood habitat to be deforested. In addition no indication is made about the biodiversity impact of the flooding of the areas to be covered by the dam and the tailings pond;

– Chapter 4.7 of the EIA Report, “The socio-economic environment”, makes no reference to the impact on the local community of the relocation of people directly affected by the project implementation, nor to the post-closure evolution of the socio-economic environment;

– The fact that not even the environmental agreement no. 8 of 05.07.2012 mentions any notice from the Ministry of Culture and Confessions issued prior to the environmental agreement issuance entitles us to conclude that the environmental agreement was issued in the absence of any notice from the Ministry of Culture, and therefore in breach of the Ordinance OG 43/2000, Art. 2 (10);

– The EIA Report fails to assess the “Zero Alternative”, that is, an assessment of the case when the project is not implemented / the proposed activity is abandoned;

– The final decision on issuing the environmental agreement was not communicated to the potentially affected neighbouring states, consulted within the transboundary procedures implemented;

– The absence of the study on the adequate environmental assessment of the project impacts upon the Natura 2000 site Metaliferi Mountains.

Hunedoara EPA issued on 9 October 2013 a decision to revise the environmental agreement for the cyanide mining project at Certej and requested the partial resuming of the environmental impact assessment for the project “Mining of gold and silver ores in the Certej perimeter”. Deva Gold was thus asked to submit an assessment study of the potential impacts of the mining project upon protected areas of community interest (Natura 2000 sites). On the date when this decision was published on the institution’s website, Deva Gold had already submitted the documentation to the environmental authority, with a five day deadline for submitting comments.

In the very short interval allowed for stakeholders to submit comments and suggestions, the Independent Centre for Development of Environmental Resources, Salvaţi Bucureştiul, Efectul Fluture and Transilvania Verde associations, as well as a large number of citizens of the area potentially affected by the Certej mining project, formulated a contestation and submitted it to the Deva EPA. The objections referred mainly to the fact that an environmental agreement may be revised to the extent that the approved project is subject to modifications: “In this case the revision was not required by changes in the project for which the environmental agreement was issued, but instead by an approach undertaken in order to complete the legal documentation. Such approach aims rather to conceal and to complete the previous unsatisfactory documentation prepared, based on which no environmental agreement should have been issued. The project operator is obliged to prepare the impact assessment study on the Natura 2000 site ROSPA 0132 Metaliferi Mountains – according to the law, “Any plan or project not required for the management of the natural protected area of community interest but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its potential impacts on the natural protected area of community interest, in view of the site’s conservation objectives.” Nevertheless, the operator of the Certej mining project has not prepared any such appropriate assessment study in view of obtaining the environmental agreement no. 8/05.07.2012.
On 12 November 2013 Hunedoara EPA announced the decision of the Technical Assessment Committee to issue a new environmental agreement based on the completion of the studies on security and on the impact upon the Natura 2000 site Metaliferi Mountains. The announcement on the issuance of the revised environmental agreement also communicated the deadline for submitting contestations by the interested public, 25 November; based on the review of the comments and suggestions received, the CAT members would decide upon issuing or rejecting the environmental agreement. However, although the mining of gold-silver ores in the Certej perimeter is classified as a “major risk” operation, Hunedoara EPA issued a new revised environmental agreement, only one day after receiving the contestation submitted by the custodian of the Natural Reserve Măgurile Băiţei, the Club Alpin Român Deva Association.

Consequently the Environmental Protection Agency Hunedoara issued on 27 November 2013 a new environmental agreement for the Certej mining project.