blue black sea int congress

8/8/2019 Blue Black Sea INT Congress

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Daniel M. Stanescu-Vatau Blue BlackSea International CongressRomania

Mining with cyanide in the light

of principles and norms of European Union law:

Rosia Montana

Student: Daniel Mihai Stanescu-Vatau

ROMANIA

National School of Political Studies and Administrative

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Mining with cyanide in the light

of principles and norms of European Union law:

Rosia Montana

Backgrounds

In this paper, I decided to write about a topic that has its origin in the mining area. Thearea is in Romania and this project is very unclean when we consider that this country is now anEU member and therefore must comply with European legislation. We also analyze how production was licensed, who is the project operator, which is the impact on people and

community of Rosia Montana, which are European instruments and so on.By treating these sub-topics we try to answer the question: Is the Rosia Montana a

project in terms of legal norms of European legislation?

Gold cyanidation, also known as the cyanide process, is a metallurgical technique for

extracting gold from low-grade ore by converting the gold to water soluble gold-cyanide metallic

complex ions. It is the most commonly used process for gold extraction. Due to the highly

poisonous nature of cyanide, the process is highly controversial and its usage is banned in a

number of countries and territories.1

Effect on the environment

The process is controversial, due to the highly toxic nature of cyanide. However, free

cyanide breaks down rapidly when exposed to sunlight, although the less toxic compounds such

as cyanates and thiocyanates may persist for some years. The famous disasters tend not to kill

many people, as humans can be warned not to drink or go near polluted water. However cyanide

spills can have a devastating effect on rivers, killing everything for several miles downstream.

Fish are the most obvious casualties, but in fact the whole food chain collapses, from

phytoplankton to ospreys. However the pollution is soon washed out of river systems and as long

as organisms can migrate from unpolluted areas upstream, affected areas can soon be

repopulated - in the Somes River below Baia Mare the plankton returned to 60% of normal

within 16 days of the spill. Another problem is that bleach may be added as an antidote, but it

contains enough free chlorine to be an environmental threat in its own right. Over 90 mines

worldwide now use a detoxification circuit to convert cyanide to the much less toxic cyanide

before waste is discharged to a tailing pond. Typically this process means to mix the cyanide

with a solution to maintain the pH at around 8.5. Famous cyanide spills include:

1http://en.wikipedia.org/wiki/Gold_cyanidation

2
http://en.wikipedia.org/wiki/Gold_cyanidationhttp://en.wikipedia.org/wiki/Gold_cyanidation


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Year Mine Country Incident

1985-91 Summitville USA Leakage from leach pad

1995 Omai Guyana Collapse of tailing dam

1998 Kumtor Kyrgystan Truck drove over bridge

2000 Baia Mare Romania Collapse of tailing dam

2000 Tolukuma Papua New Guinea Helicopter dropped crate into rainforestSuch disasters have prompted fierce protest at new mines that want to use cyanide, such

as Rosia Montana in Romania, Lake Cowal in Australia and Pascua Lama in Chile.2

In the EU, industrial use of hazardous chemicals is controlled by the so-called Seveso II

Directive (96/82/EC as amended by 2003/105/EC), which replaced the original Seveso Directive

(82/501/EEC as amended by 87/216/EEC and 8/610/EEC) brought in after the 1976 dioxin

disaster. "Free cyanide and any compound capable of releasing free cyanide in solution" are

further controlled by being on List I of the Groundwater Directive (80/68/EEC) which bans any

discharge of a size which might cause deterioration in the quality of the groundwater at the time

or in the future. The Groundwater Directive was largely replaced in 2000 by the WaterFramework Directive (2000/60/EC).

In response to the Baia Mare spill, Brussels introduced Directive 2006/21/EC on the

management of waste from extractive industries. Article 13(6) requires " the concentration of

weak acid dissociable cyanide in the pond is reduced to the lowest possible level using best

available techniques".

Rosia Montana Presentation

Rosia Montana was previously known as the Alburnus Maior, the name comes from

Dacian toponym alburnus and the roman adjective maior and was founded by the Romans

during the rule of Trajan as a mining town. The first documents of Rosia Montana is from 6

February 131 after Christ, this date appear on the waxed tablet, which was found in one of the

galleries dating since the Roman period. Archaeologist have discovered in the town ancient

dwellings, necropolises, mine galleries, mine tools, 25 wax tablets and many inscriptions in

Greek and Latin. This show us, that Rosia Montana, since the beginning of its existence, was in

close contact with the gold that is found in the basement of that territory. Rosia Montana,

located in the north-west of the country, at 128 km from Cluj-Napoca and 70 km from Alba

Iulia, in Alba county, holds the largest gold deposit in Europe (estimated at 10,6 million ounces

of gold), traditionally exploited underground for century.34

2 Supra note 1 environmental effects3http://en.wikipedia.org/wiki/Rosia_Montana and Preda, Constantin (coord.), Encyclopedia ofArchaeology and ancient history of Romania vol.1, Encyclopedia Publishing House, Bucharest, 1994 ISBN 973-45-

0044-9

4http://www.rosiamontana.org

3
http://en.wikipedia.org/wiki/Rosia_Montanahttp://www.rosiamontana.org/http://en.wikipedia.org/wiki/Rosia_Montanahttp://www.rosiamontana.org/


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LFA status was granted by GD 813/07.10.2001 Apuseni Mountains area. However, claimthat "Because it was designated as deprived area, which brought more business investment in thearea was closed" is false. Designation as deprived area entails a series of tax incentives thatincrease investments not closed under the Emergency Ordinance no. 24/1998 republished onregime LFA.

Rosia Montana is an area that has long been that specific activity is mining. Majority ofthe population earn their existinta of mining production. Points of view in the area of

development is classified as a deprived area, and as I said above. Tourism in the area is very

poorly developed, a major tourist program started several years ago with the lunch of sites

www.buciumanii.ro andwww.drumulaurului.ro.

Other related environmental status is not specified in this area because ever since the

Dacians and Romans it was known as the mining area, so eventually there was no specific

measure to define a special status of this area.

A. Project operator

The Company Rosia Montana Gold Corporation SA (RMGC) intends to implement a mining

project in the area of Rosia Montana, Romania. Currently, 80% of the RMGC are owned

Canadian company Gabriel Resources Ltd., and 20% of other Romanian companies. Minvest, a

Romanian state-owned company, owns more than 19.31% of the 20 percent as the Romanian

state holds.5

B. The legal methods, geographical expansion and archaeological impact

Controversial policy and the mining project

Representatives of the National Agency for Mineral Resources is stubborn enough to reveal

the documents of mining license, acts which could be crucial for Canadian company Gabriel

Resources' plans. Although the proposed Rosia Montana has been analyzed over time, no

representative of the government thoroughly investigated how the mining license has been

transferred from state-owned company Minvest Deva to Rosia Montana Gold Corporation

(RMGC), who was controlled at the time of transfer, by Frank Timis.

Mining of Alba became interesting after 1998, year saga that began in Rosia Montana gold.

Act on plans which have been licensed Canadian company Gabriel Resources is operating no.

47/1999. The document became "birth certificate" of the project in Rosia Montana, formalized

by Government Decision (GD) no. 458 of June 10, 1999. The decision by the government is

signed by the current Minister of Transport, Berceanu, at that time Minister of Industry and

Trade, and ANMR President Mikhail Ianas, a character that long revolved around the

controversial people businessman Ovidiu Tender and Frank Timis. Concession license gold-

5 Data taken from the summary project.

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http://www.buciumanii.ro/http://www.drumulaurului.ro/http://www.drumulaurului.ro/http://www.buciumanii.ro/http://www.drumulaurului.ro/


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silver exploitation (mining license) in Rosia Montana was signed by former Finance Minister

Decebal Traian Remes.

Documents show that in 1998, entered into force Law 61 (Mining Act), legal actregulating how they are awarded operating licenses. The law was approved after, in April that

year, Berceanu was appointed Minister of Industry and Commerce. Gold mining rights in RosiaMontana were awarded by ANMR through direct delegation, under Law No. 61/1999,Autonomous Administration of Copper Deva subsequently transformed into the NationalCompany of Copper, Gold and Iron Minvest (Minvest).

Also in Berceanu democratic mandate, that on October 9, 2000 is transferred to thecompany licensed by the State RMGC, where the majority shareholder (80%) was the companycontrolled by Frank Timis. The Romanian state has lost control over the exploitation of goldwhen ANMR president Mikhail Ianas, signed the order 310 of October 9, 2000, that ordered thetransfer of license. The same day, Minister of Industry, Berceanu, the transfer of mining licenseand thus gives control over the Rosia Montana gold with a simple letter with the registrationnumber 193247/09.10.2000. With letter signed by Berceanu, businessman Frank Timis later

managed to sell the business to a number of Canadian investors, which include investment fundsand major mining companies.

A mining project built on shaky documents.

Besides the issues of possible adverse environmental impacts, exploitation in RosiaMontana was challenged and the judicial level. The main suspect is himself attracted to themethod of granting mining license and the documents approving its transfer from one state to acompany with private capital.

Since 1999, when the operating license was issued, it was not presented to the public.Further, representatives say NAMR supporting documents to the Government Decision 458(which is approved mining license) not be treated as public information. In 2002, PRM deputyfrom Buzau, Lucian Bolcas Augustine presented a motion "Rosia Montana", which show that

legal mining license could be transferred to RMGC only mining rights can be transferred. Inessence, the motion presented in Parliament, shows that, in accordance with Art. 14 (1) of theMining Law, "a license holder may transfer to another person acquired legal rights andobligations only with written approval of the competent authority. Any transfer made withoutwritten approval is null and void. "

Therefore, the text of the law only allows the transfer of "acquired rights" and "obligations

incurred" under license, no license transfer itself. Also, Article 31 of the Annex to Government

Decision 458/1999 (approving the operating license of the mine at Rosia Montana) provides that

"NAMR approve in writing within 30 days of the request, according to Article 14 (1) of the

Mining Law no. 61/1998, the rights acquired and obligations incurred in the exploration or

mining license by another person in carrying out the terms contained in the license. This

provision is formulated in clearer terms and the transfer of the license is therefore prohibited.

NAMR rights may only transfer, not license, which normally must remain in the public

company.

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Mining project in its words

License Number 47/1999 exploitation concession (license) which allows the start and

operation of the Project has an initial term of 20 years and may be renewed for successive

periods of 5 years. RMGC acquires license. The license covers an area of approximately 4282

ha. Project affected area stretches from and affecting the five localities, namely the RosiaMontana (town has the same name as the valley), Orlea, Cetate (Castle) Jig-Vaidoaia and Carnic

(Meat). The project would be implemented in an area full of interesting archaeological remains.

Rosia Montana was the first gold-producing province of the Roman Empire. Unique

archaeological relics of ancient Roman mining techniques (surface mining) have been well

preserved here. More recently (2000-2002), several temples (dedicated to the gods Zeus and

Janus Geminus), a mausoleum, baths etc were found at Carpeni and (Holes). At European

level, these relics are the sole witnesses of the Illyrian-Roman culture. During the project

implementation will be as follows: Minvest is now responsible for small-scale mining activities,

subsidized by the Romanian and related in the project6. The area proposed for all mining

activities will be 50 times greater than that currently existing. The project area will have four

stores, each located in or near towns Castle, meat, Orlea and Jig. The method used to exploit

these deposits will be cyanidation. To this end, an artificial lake for storage of raw material with

cyanide will be built in Corna valley, located in the vicinity of Rosia Montana. The lake will

cover an area of 600 ha. About the potential leakage of highly toxic chemicals in groundwater,

the project summary can be read as follows:

"Corna Valley Basin consists of residual soil and sediment placed over layers of sedimentary

rock, including rock slides interspersed with clay in sandstones. [...] Groundwater in the valley

ridges will be in the way of a hydraulic barrier by increasing infiltration. [...] Less significant

alluvial deposits with a high permeability have been found at the bottom of the pool." 7

And further:

"Preparation will consist in unveiling the basin and smooth the bottom basin, using disc

plow and work with the machines first 300 mm of coating, dipping and compacting the ground to

get a less permeable layer continuously."8 Particulars above make us conclude that a leak of

potassium cyanide, which is a very toxic chemical, networks groundwater or drinking water of

the affected population cant be excluded.

6Volker Wollmann, Position Paper on Displacement of Cultural Relics, Paper on RMGC's proposal to move thehistorical cultural relics from their original place, www.rosiamontana.org. Wollmann critical lackof anyplan for cultural relics preservation of Rosia Montana by company and speaks of an "irretrievable

mistake" here.

7 Project summary, page 728 Project summary, page 74

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C. Impact on the people of Rosia Montana and neighboring communities Expulsion

According RMGC because of environmental deformation caused by mining activities, the

project will require resettlement and relocation of affected population. On removal, project

summary contains the following comments: Around 2156 people will be affected by

displacement. Expulsion shall be made only to the desire of those affected. However, thefollowing summary statement of the project suggests the prospect of forced relocation if needed:

"Expulsion would be involuntary where it can be minimized by searching all viable

alternatives."9

Initially it was planned that all persons affected by displacement to be consulted as they are

about the impact of a community project. Since this alternative has proved to be feasible,

residents were consulted through opinion polls and other similar forms of consultation. Another

negative impact of the project to be considered is that the more remote dwellings and households

will be virtually isolated from the rest of the world and will be renounce any form ofinfrastructure.10

D. Project environmental impact

It seems that RMGC assumed that the Romanian legislation on the environment is largely

aligned in EU environmental standards. However, RMGC seems to consider an environmental

impact assessment study and wish to apply EU law in this area.

Legal assessment of the facts in accordance with Community legislation European (EC law)

Policy and the laws on environmental protection

1. Basic Principles of the European Community: Article 3(ex 2 TEU) and 191 of

the EC Treaty

Article 3 of the Treaty which underpins the European Community (EC Treaty) states that

this community will have the task of "establishing a market and monetary union and common

economic and implementing common policies or activities referred to in Article 119, promoting

[...] a high level of protection and improvement of environmental quality, increase living

standards and quality of life [...].

By assuming this task, which was included in the EC Treaty as one of the amendmentscreated by the Amsterdam Treaty, the Community shall attach the same importance to

environmental protection as, for example, " sustainable development and non-inflationary", "a

high level of employment labor"or" a high level of social protection. For this reason, economic

progress must be measured not only in terms of quantity, but in terms that relate to quality. As a

9 Project summary, page 9010 Wollmann, Position paper, page 1.

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result, the European Community can only be called the Economic Community, as before, but

should be viewed and Community in charge of environmental protection.11

Article 191, (1) standardizes the EC Treaty that Community policy objectives that should

follow. Objectives include " preserve, protect and improve environmental quality", "protect

human health", and "a prudent and rational utilization of natural resources.

Article 191, (2) of the EC Treaty defines the other end of the EC environmental policy, is

to achieve a high level of protection, given the differing situations in various regions of the

Community. In addition, the most important principles of EC environmental policy have already

been standardized in this regulation: in accordance with Article 191, (2) of the EC Treaty,

Community policy on the environment should be based on principles of precaution and the

principles that preventive action should be taken into account, environmental disasters should be

rectified immediately, and that the polluter should pay. Legal norms of EC secondary legislation,

which will apply the facts to which we refer in the following section should be interpreted in

light of their rules of jurisdiction (included in Article 191, EC Treaty) and the general principlesof EC Treaty (Article 3 EC Treaty). Therefore, the relevant terms and concepts used in this

document are defined in the following two sections.

2. The concept of environmental EC legislation

Community legislation does not include a definition of the concept of environment, so

this concept remains to be developed. However, the literature, various programs of action for

environmental protection and secondary legislation means that undoubtedly has a broader reach

general consensus. According to prevailing belief, environmental concept includes "the natural

and built environment for people".12

This, in turn, leads to the conclusion that, under thisdefinition generally accepted, Community policy on the environment includes also the European

cultural relics (tombs, temples, historic mines, etc.) 13

3. Environmental policy objectives of EU / EC

The first objective of EU/CE environmental policy must be checked is expressed by the

concept of "preservation of environmental quality. In any case, protecting the environment

includes measures to maintain its status quo. Since Article 191 of the EC Treaty establishes a

high level of protection within the environment, the status quo must also be measured at a level

11 Frentz, European Environmental Law. Scheuing, Environmental protection, on the basis of the Single

European Act, European Law 1989, 152 (176); Pernice, European Union as an environmental Union?,

European Journal of Business Law in 1995, 385; Jahns-Bhm/Breier, The environmental clause of Article

130 EEC II , European Journal of Business Law in 1992, 49 (52). This was the case of amendmentsintroduced by the Treaty of Amsterdam.

12 Fischer/ Kock, European Law, 4th edition 2002, page 666(detailed analysis)13 Breier/ Vygen, Commentary on art. 191 (ex- 174), in Lenz ed. Commentary on EC-Treaty,2nd edition 1999, page 1451.

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in accordance with the literature.14 In accordance with Article 191 (3) of the EC Treaty, the risk

assessment should be based on technical and scientific data available. Thus, according Grabitz /

Nettesheim, the current state of the environment can be preserved only by implementing

preventive environmental protection. It can be maintained only by adopting measures to

eliminate the damage already produced15. So says Frenz, the concept of maintaining

environmental quality "must be regarded as its implications go beyond simply preserving the

status quo, are necessary preventive measures for environmental protection16. Since

environmental protection is cited together with environmental preservation, the legal measures

adopted by the Community should focus on the objective of environmental protection. No people

should be particularly those that threaten the integrity of the environment. In fact, EU policy / EC

should also address the threats that come true only in the future (e.g. groundwater conditions

change or earthquakes). Based on this interpretation of Article 191, EC Treaty, environmental

threats that were not caused by people and they should be included in legislation and

environmental policy of the EC. In addition, through this understanding, difficulties in

demonstrating environmental threats must be prevented, because not always the polluter or thecauses of pollution can be checked accurately.

The second objective of the Community environmental policy which is included in

Article 191, EC Treaty, and is relevant to this case is " to improve environmental quality. In

accordance with Article 3 of the EC Treaty, the objective should be to aim for a high level of

protection, thus facilitating the adoption of measures to improve current environmental

standards. The high level of protection is not a state of perfection, but serves as a starting point.

To achieve improvement in the status quo, the Community should, first and most important, to

introduce environmental standards increasingly more difficult to achieve.

The third objective of the environmental policy of EU / EC is defined as "protecting

human health. To ensure a high level of protection of human health is already mentioned in

Article 168(1) (Title XIII), the EC Treaty. To sort the list in a clause, Article 191(1), (2), Treaty

repeated goal of "protecting human health" to Title XIX (Environment), thus emphasizing the

great importance given to protecting the health of EC environmental legislation. In this regard,

the term "health" encompasses all the physical and mental. Therefore, in the context of the final

rules of jurisdiction, this objective must be understood as an addition to the goal of

"environmental protection". However, the protection of human health has its value independent

environmental policy and EC law today. This can be inferred and secondary legislative acts17.

The fourth objective, "the prudent and rational utilization of natural resources" refers to

both natural environments (e.g., air, soil, water, but also plants) and Mineral Resources. Since

14 Frentz, European Environmental Law 199715 Grabitz/Nettesheim, Commentary on Art. 191 (ex-174). Commentary on EC Treaty,Grabitz/Hilf(ed.).16 Frentz, European Environmental Law 1997. Page 717Council Directive 82/884/EEC of 3 December 1982 which sets a limit value for lead in air. OJ L378/1982, p. 15.

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the European Community has competence to develop a common legislation on energy, a conflict

may arise between this and national policies on energy. If this objective will be implemented in

one day in a legal act of EC secondary legislation, this legal instrument will either have to be

implemented (if a directive) or to have direct effect in a vertical direction. In accordance with

Article 191 (2), the EC Treaty, Community policy on the environment should be targeted to a

higher level of protection. The term "higher level of protection" is not defined in the scope of the

EC Treaty. However, you must assume that the article does not require the highest level, but

implementation of environmental protection measures based on a high18. A systematic

interpretation of the rules by the provisions of Article 191 (3), EC leads to the conclusion that a

high level of protection should in no case be less important than the situation of available

scientific knowledge. Issues to be discussed include implementation of a procedure for

environmental impact assessment (EIA procedure) mandatory throughout the Community and

surface water pollution control.

The above objectives and basic principles of environmental policy should be used as

fundamental criteria of interpretation. Those interpretations should be consistent in the

community.

Establish a procedure for assessing the environmental impact

1. Principles of EIA and SEA Directives

Legal acts of secondary EC legislation, relevant to answer the legal question raised

include the Environmental Impact Assessment Directive (EIA Directive19) and Strategic

Environmental Assessment Directive (SEA Directive20). An important feature of the EIA

Directive is to provide a legal proceeding to determine whether an environmental impactassessment. This procedure is based on certain fundamental principles and will serve to identify,

describe and accurate assessment of adverse effects on the environment as soon as possible. EIA

Directive does not stipulate that projects which are believed to have adverse effects on the

environment will not be allowed under any circumstances. In fact, the environmental impacts of

these projects should be included in the "Development Agreement. If necessary, special

conditions will be imposed "project contractor.21

In its preamble, the EIA Directive states the following:

18 Epiney, Environmental Law in the European Union (1997). P 9619Council Directive 85/337/EEC of 27 June 1985 on the effects of certain public and private projects onthe environment, OJ 175/1985, p. 40.

20Directive 2001/42/EC of the European Parliament and the Council of 27 June on the effects of certainplans and programs on the environment, OJ L 197/2001, p. 30

21 Prelle, The implementation of the EIA Directive into national law and their coordinationwith the General Administrative, 2001. P 33.

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" As general principles for environmental impact assessment should be introduced to

supplement and coordinate procedures for the receipt of necessary development agreement

public and private projects that could have a significant effect on the environment."

This regulation suggests that the EIA Directive, will standardize the general principles of

administrative procedures undertaken by Member States. Therefore, this directive is designedonly to supplement national authorization procedures. In Article 1, the EIA Directive states that

public and private projects likely to have a significant effect on the environment must undergo a

mandatory environmental impact assessment.22 For purposes of this Directive, "project" refers to

a wide range of activities. Under Article 1(2) of the EIA Directive, "project" means the execution

of construction works or other facilities or activities, and other interventions on the natural

surroundings and landscape including the extraction of mineral resources. Central regulation of

the EIA Directive, as specified in Article 3, shows that plants meet the definition of "project" in

Article 1(2) of the EIA Directive should be subject to environmental impact assessment:

Environmental impact assessment will identify, describe and assess in an appropriatemanner in light of individual cases and in accordance with Articles 4 to 11, direct and indirect

effects of a project based on the following factors:

Human beings, flora and fauna,

Soil, water, air, climate and landscape,

Interaction between the factors mentioned in the first and second terms,

Material asset and cultural heritage.

According to Article 4(1) EIA Directive, "installation to obtaining nonferrous metals

from ore, concentrates or secondary raw materials by metallurgical, chemical or electrolytic

processes(cf. Annex 1 (2), (4)) will be assessed in accordance with Article 5 to 10.

After this description we will consider whether the procedure adopted for the installation

of the Rosia Montana mining project is in accordance with legal requirements of the EIA

Directive. Article 5 (3) of the EIA Directive provides that information to be provided by the

contractor should include at least a description of the project containing information on the

ground, the project itself and the dimensions of the project, a description of measures envisaged

to avoid reduce and, if possible, remedy significant adverse effects, the data necessary to identifyand assess the main effects the project might have on the environment, a description of the main

alternatives studied by the contractor and an indication of the reasons for his choice, having

regard to environmental effects. In addition, a non-technical summary of the above information

is necessary for awareness and understanding of information by the public.

22 Supra note 20.

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Thus, the requirements of the EIA Directive itself should be seen as a first step: in Article

6 (2) of the EIA Directive sets out the following:

"Member States shall do so any application for development agreement and any

information gathered from Article 5 to be made public within a reasonable time to give the

public concerned the opportunity to question its views before the Development Agreement to bereceived by the entrepreneur."

This regulation contains two requirements which Member States must meet when

requesting consent for development: information gathered should be available to the public in a

reasonable time, in addition, "the public concerned about the issue" must be given opportunity to

"express their opinion.

2. ECJ jurisdiction on this issue

No doubt, "the public concerned about this issue" includes a smaller group of people than

the general public. In accordance with its permanent jurisdiction, the ECJ granted individuals the

right to exercise the rights established by a legal act of environmental legislation if, at least, the

purpose and goal of legal document supporting the protection of the rights in question are

considered crucial for people. ECJ verdict in the case show that TA-Luft23 limits established by

European directives on air quality "to protect human health in particular. This means that in all

cases exceeding the limits would endanger human health, people should rely on mandatory rules

to be able to express their rights. In Case C-131/88, which was occupied by Germany breach of

obligations arising from Directive on groundwater24, ECJ emphasized the protection of

groundwater of the Community in an efficient manner by creating specific and detailed

provisions that would require Member States to adopt a series of restrictive measures, licensingschemes and monitoring procedures to prevent or limit discharges certain substances. On the

directive and the rights of the individual, we must say that following the EIA Directive, most of

the articles and provisions contained therein are of a procedural nature. The ECJ reached the

same decision in a similar case which concerned the failure to transpose Directives relating to

surface water25. The Directive intends to "protect public health. This, in turn, leads to the

conclusion that under certain conditions, Directives environmental legislation grants rights to

individuals and legal entities fall under their protection. In accordance with the permanent

jurisdiction of the ECJ, those affected should be able to assert these rights before the Court.

Finally, in Article 9 of the EIA Directive states that when a decision to grant or deny the

development agreement should be made, authority or authorities should inform the public inaccordance with correct procedures and to make public knowledge reasons behind the decision.

23 ECJ, C-361/88 Commission vs. Germany (TA-Luft), [1991] ECR I-2567.24 ECJ, C-361/88 Commission vs. Germany [1991] ECR I-825.25 ECJ, C-58/89 Commission vs. Germany [1991] ECR I-4983.

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Rosia Montana mining project in light of the EIA Directive and SEA Directive

The area proposed for mining equipment in existing facilities, Rosia Montana, would be

50 times the size of their current project is therefore subject to the EIA Directive. It can be said

on the facts of this case that the requirements of the EIA procedure, as established in the

corresponding EC Directive were not met.

The information required by Article 5 of the Directive is not available.

A hearing opinions expressed by those affected apparently was not held. The objective of

the SEA Directive is to provide a high degree of environmental protection and contribute to the

integration of environmental considerations in the preparation and adoption of certain plans and

programs. In the directive included all plans and programs which might be thought to have asignificant effect on the environment.

Although the SEA Directive contains rules basically similar to those contained in the EIA

Directive, if "the public affected by this issue" includes both that part of the public who is or will

be affected by the decision making process of the Directive and non-governmental organizations

which place emphasis on activities related to the subject Directive. Therefore, the group of

people included in the SEA Directive is greater than that included in the EIA Directive. This

large group of people was not heard by the authorities responsible have not been provided

information relating to the project. This is a violation not only of the EIA Directive, but the SEA

Directive.

Control of water pollution

Directive on groundwater protection distinguishes between two categories of substances

into two lists, I and II.26 Cyanide is included in List I. In the preamble to Directive defines its

purpose:

"As for ensuring effective protection of groundwater in the Community is necessary to prevent

discharge of substances in List I and limit the discharge of substances in list II, whereas it

should be distinguished from direct discharges of hazardous substances in groundwater and

actions which could potentially result as indirect discharge, whereas, with the exception of

direct discharges of List I substances, which are automatically prohibited, all discharges of

substances should be approved".

In Article 1 of Directive, groundwater is defined as "all waters which are under the earth

in the saturation zone and in direct contact with the ground or subsoil". Direct discharge means

26Council Directive 80/68/EEC of 17 December 1979 on protection of groundwater pollution caused bytoxic substances, OJ L 20/1980, p. 43

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the introduction of substances in list I or II groundwater without being filtered through soil or

subsoil indirect discharge means the introduction of substances in list I or II in groundwater after

filtering through the ground or subsoil.

Article 3 of Directive contains the central regulation of this Act: Member States are

required to make necessary steps to prevent the introduction of substances in List I ingroundwater. Since the direct and indirect, of a substance in List I in soil is thus prohibited the

discharge of List II substances should be restricted under this rule. To comply with the obligation

to prevent direct and indirect discharge of substances in List I, Member States should investigate

any process in which these substances are used.

Article 4 (1), sentence 2 of the Directive on the protection of groundwater is particularly

important when discussing about the project. As he says: " In light of that investigation, the

Member States shall prohibit such activities and will grant authorization only if all technical

precautions necessary to prevent such discharges are met."

Using the term "prevention" allows us to conclude that in terms of objective Directive,

which is to protect the human health, Member States are required unconditionally to inform the

public about the outcome of the investigation. Article 9 of the Directive on groundwater

protection stipulates what must be specified in the permit, as in Article 11 states that permits may

be granted for a maximum of 4 years only. Once this period expires, permits may be renewed,

amended or withdrawn. Regarding this case, we must say that, since cyanide is one of the

substances in List I, indirect discharges of this substance in groundwater must be prevented at all

costs. However, the project summary in the passage quoted above related to the leakage of

cyanide in groundwater can be found. The data presented above means that a leakage of

potassium cyanide, which is an extremely toxic chemical in groundwater and drinking watersystem of the affected population, either through layers of soil more or less permeable, cant be

excluded. This means that granting a permit for construction of a storage lake of cyanide is a

violation of Article 4 of the Directive on groundwater protection. In addition, the above

authorization for an unlimited period violates the provisions of Article 11 of the Directive on

groundwater protection.

Rosia Montana mining project in light of the ECHR

As a member of the Council of Europe, Romania is a member of the ECHR in 1994.

Article 8 (1) of the Convention states: everyone has the right to privacy. This freedom alsoincludes the right to be respected them homes.27 Right to privacy be respected is based on the

state's obligation to respect this freedom. Public authorities may interfere with the exercise of

this right only in the public interest, such as for example national security, economic well-being

of the country, protecting public health, etc28. This freedom must be subject only to limitations

27 Villiger, Handbook of the European Convention on Human Rights. Zrich 1993, pg. 318.28 In accordance with articles 8 to 11 ECHR.

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that are set by law and are necessary in a democratic society. 29 The public authority or the

government restricts this right are required to justify this act under Article 8 (2) of the ECHR.

Because of the Rosia Montana mining project thousands of people who enjoy the right to liberty

under Article 8 of ECHR, will be forcibly displaced. If we consider this in the context of the

legal situation described above, is whether the measure is justified under the criteria of Article 8

(2) of the ECHR30. Only in Rosia Montana, 740 houses and 138 apartments are affected by

displacement. This interference in people lives can be justified only if the "public interest". This

may be the case if the mixture is intended to improve "the economic welfare of the country" and

if it is proportionate to the disadvantages caused by affected individuals. Both criteria will be

considered in the following sections.

A. Criteria justified "public interest in view of economic welfare of the country"

As already stated at the outset, RMGC mining company is 80% owned by Canadian

company Gabriel Resources Ltd. and the rate of only 20% of a Romanian company. This type of

ownership of the country's minority holding reserves is quite unusual in international mining andrefers to the operation of neo-colonialist31age. Regarding leasing operation, project summary

does not indicate if it was determined a profit-sharing formula. Usually, such a formula include

mining concessions, for example, is 15:85 in favor of oil-producing country in the field. Project

summary states rights only 2% of total concession holder has to pay annually the Romanian

government. This leads to the conclusion that the bulk of future profits will go to Canada and

will remain in the country. This means that criteria justified "the public interest to the country's

economic welfare, as set out in Article 8 of the ECHR was not met by a mining project in Rosia

Montana.

B. Criteria justified "Proportionality of the measures used by Romania against theaffected population "

However, while Romania, the country holding reserves, would be given a fair part of the

profits from the project based on a series of UN resolutions32, the significant interference in the

lives of thousands of people living in this mining area and irreparable damage caused to the

environment of this method for extracting gold with cyanide, which is prohibited, are not

proportionate to the potential economic benefits that Romania could obtain the producer country.

In addition, significant damage, such as disasters of proportions of cyanide contamination in

Tisza River and then the Danube in 2000, which also affected the neighboring country cant be

29Fischer/Kck/Karollus, European Law, 4th edition, 2002, pg. 20030Villiger, Handbook of the European Convention on Human Rights, Zrich 1993, pg. 311.31 Fischer, The international license, Viena 1974; idem, Concessions, in: R. Bernhardt (ed.),Encyclopedia of Public International Law, Fasciculus 8 (Amsterdam-New York-Oxford 1985), pg. 77.32 See the many resolutions of the UN General Assembly on "permanent sovereignty over natural

resources" and the proposals made by the UN Commission on Transnational Corporations. Fischer, The

international mining law in the light of historical, current and future contractual right design, in Journal

of Mining Law (Bonn 1976), pg. 74

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excluded entirely33. Consequently, the project is at odds not only with EU environmental

legislation / EC, but also the basic principles and rules of the ECHR.

Conclusion

In conclusion, this project violates the EIA Directive, the SEA Directive and Article 8 of

ECHR. In addition, this project does not comply with regulations that concern the protection of

surface and underground waters. So this is the second reason, because this project violates too

Ground water Directive and surface Water Directive, that the project should not be implemented.

This gives to understand only one thing, the Rosia Montana Project should not be put into

practice only if they use another method of extraction. This new extraction method should not

destroy the landscape, do not affect human habitat, not to pollute surface and groundwater. Like

an answer to my research question if the Rosia Montana project is in legal terms of the European

legislation, my answer and not only mine is no. This is my opinion about this project.

What we know about the real profit of Romania:

1. At Rosia Montana there is a deposit of more than 300 tonnes of gold, 1,600 tons of silver andother precious metals valued at about $ 7 billion, depending on the price of gold and ore found.2. Rosia Montana Gold Corporation (RMGC), is owned by Canadian company GabrielResources, with 80.7% of the shares, and the Romanian State through the National CompanyMinvest Deva, subordinated to the Ministry of Economy, 19.3% of the shares.3. Deposit exploitation license was granted in 1999, the state direct custody Minvest Deva. Aftera year he was transferred to Rosia Montana Gold Corporation through a method and consideredthe extent of the law challenged.4. In 2000 the Romanian government has agreed to be his small stake in the company RosiaMontana Gold Corporation. Following a capital increase, Minvest stake was reduced from 33%to 19.3%5. To maintain its current stake, of 19.3%, the novel was borrowed by Gabriel the last capitalincrease in 2009, with 115 million lei, the money will be returned to Romania in the firstdividend.6. In making a stand against the mining project RMGC, rector of the Academy of EconomicStudies appreciate that Romania will come only turn to cash in profits after the first 12 years.7. Rosia Montana has been declared by the Romanian authorities 'deprived area'. Rosia Montana

Gold Corporation benefits in accordance with the law of VAT exemptions for a period of 10

years and other tax incentives.

8. For operation in Baia Mare gold was removed from the country hidden in the intermediate

concentrates (want), tens of thousands of tons that were not taxed as gold, but more than that

semi.

9. Closure costs of the mine are U.S. $ 1.2 million per year, provided by RMGC in the first three

years. State is to bear the costs of maintenance of the dam and catchment systems, emission

33Roth, A. Storm in Making, 1.http://www.corporatewatch.org .

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monitoring of hydrocyanic acid, water pumping and treatment for an undetermined period.

10. Taxes on dividends from Gabriel Romania will not reach the budget as major shareholders

are mostly off-shore companies, not taxpayers.

What we know about the environmental impact:

1. The Project proposes the greatest career in Europe and the largest dam, the highest of 185 m.

This dam would have to sustain a lake with an area of 600 ha.

2. The dam would be located 7 km upstream from Abrud city with over 6,000 inhabitants.

3. In case of possible collapse of the dam, part of the contents of the pond will be discharged into

the hydrographic network of the area, broadcasting in Hungary, Serbia, Bulgaria, Ukraine, Black

Sea and Danube Delta.

4. In Baia Mare there was one of the biggest environmental disasters in Europe, due to the use of

cyanide in gold mining. In 2000, the Tisa and Lapus had been dumped over 100 tons ofpoisonous substances. They poisoned 1,200 tons of fish and contaminating drinking water

supplies of 2.4 million inhabitants.

5. Following the accident in Baia Mare, the Romanian state should pay to Hungary and 120

million euros in damages for pollution of the Tisza.

6. May 5, 2010 at the European Parliament overwhelmingly adopted a resolution in 2011 to ban

cyanide in mining in the European Union with the EU recommendation not to encourage new

projects based on cyanide mining to the total ban in 2011.

7. Due to the specific Apuseni Mountains, where carstic formations dominate, blind valleys,

sohodolurile any water seepage from the tailings pond containing cyanide could easily reach into

large rivers.

8. For gold extraction will be used during the 17 years of operation, approximately 1.561 million

tons of hazardous substances, of which 84 000 tones of sodium cyanide.

What we know about heritage UNESCO:

1. Romanian Academy categorically opposed to the mine.

2. At Rosia Montana have found 7 km from the Roman galleries, coated tablets about 80 kmRoman law and medieval galleries are unique in the world. Wood found here dates from theDacian period, 41 monuments are on the list of historical monuments.

3. Orthodox Churches, Roman Catholic, Unitarian and Protestant are among the largest land andproperty owners in Rosia Montana. All they have publicly declared that they would refuse to selltheir properties mining company.

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What we know about the social impact:

1. Since the relocation RMGC in Rosia Montana, in 1999, the city has suffered economically andsocially by the displacement of hundreds of area families and declaring mono.

2. Mine closure in 2006 of the existing state of the 775 affected workers. Moreover, closingcopper mine at Rosia Poieni (to make room RMGC) will affect 1,500 other workers. The task ofthe 2,300 workers is dismissed and their compensation will return to the Romanian state budget.3. Jobs RMGC says that it will create in the area are 800 in number during the 17 years and at theend of the operation of the deposit area to stay again without jobs, with a large number ofunemployed and with a severely affected environment.4. According to a survey by an independent firm in the U.S., since 2003, on average, duringoperation, will be 240 jobs, not 800, as officials said RMGC.5. Canadian mining companies in 30 countries are accused of violating human rights.

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