Why Honduras should not jump on the ban wagon: a study of open pit mining bans and their pitfalls.

• Author: Dawson, Casey

1. INTRODUCTION

   Butte, Montana, is home to the Berkeley Pit, a former open pit mining site that has slowly filled with deadly and acidic water that threatens to contaminate the drinking water of nearby communities within the next ten years. (1) In Argentina, the active Alumbrera mine projects toxic dust into the air on a daily basis and uses such large amounts of water that farmers' crops are failing from desertification. (2) At a gold mine in Congo, sixty people died in a mine landslide, a common danger of open pit mines. (3) Given the potential devastation that can result from open pit mining, mining companies already face stricter and more extensive regulations when pursuing sites and permits for open pit mining. (4) A relatively new approach, however, for avoiding the health and environmental risks is to ban the use of open pit mining altogether. (5)

   Over the past decade, countries in Latin America have experienced a sharp increase in interest from foreign mining companies and, as a result, are generally aware of the long-lasting impact that open pit mining may have on the individuals living in the community and on the environment. (6) In an attempt to prevent potential societal and environmental damage and the creation of new mining sites, several countries have enacted outright bans on the open pit mining process. (7) For example, the Costa Rican national government banned open pit mining at the federal level, while individual provinces in the Philippines and Argentina enacted laws to ban the process at the local level. (8) Although the bans enjoy wide support from citizens and social and environmental activists, mining industries and companies continue to lobby for reform of the laws. (9) The bans also tend to include exceptions and unintended consequences against which activists continue to protest: some bans allow pre-existing sites to continue operating, while others result in an increase in illegal mining. (10) Although Honduran communities have also recently advocated for a ban on open pit mining, any such ban would most likely be ineffective in light of the legal pressure from the mining industry, the futility of many of the existing bans, and the current pro-mining state of the Honduran government. (11) Instead, the Honduran national and local governments may be more successful by imposing stricter federal regulations and requirements on mining companies before issuing mining permits. (12)

   This Note will discuss whether a flat ban on open pit mining is sufficient to prevent the harms associated with open pit mining, and will examine practical alternatives that may achieve the desired end result. (13) Part II will present the history of open pit mining, including the advantages of the technique and the detrimental effects it has on the environment and the health of communities near the mining site. (14) Part III of this Note will introduce common forms of open pit mining regulations, and will explain the recently proposed and passed mining laws in Honduras, as well as similar mining laws enacted in Costa Rica, the Philippines, and Argentina. (15) Part IV will follow with an analysis of the downfalls of bans on open pit mining and will explore alternative strategies that may be more practical for Honduras. (16) Finally, Part V will conclude that the Honduran national and local governments should pursue extensive regulation and oversight over international mining activities. (17)

2. OPEN PIT MINING

   1. The Mining Process

      Open pit mining is a form of surface mining that mining companies utilize when the desired mining deposits, such as gold or copper, are located at or near the surface of the ground. (18) Based on the location of minerals closer to the surface of the ground, open pit mining, as opposed to underground mining, is often the most economical way for mining companies to retrieve these types of minerals. (19) Although open pit mining may be the cheapest option for companies looking to exploit certain minerals, the process involves a number of complex steps and can require many resources. (20) In particular, this type of mining requires the repeated movement and relocation of immense quantities of earth, containing waste rock and minerals, from the mining site. (21) While many methods of mining allow for periodic placement of leftover waste rock back into the mining site, the open pit mining process requires a mining company to plan for and execute the storage of waste on a completely separate site. (22)

   2. The Impact on Environment and Health

      While the mining industry enjoys the economic benefits of open pit mining, the effects on the environment and surrounding communities are often negative. (23) The operation of an open pit mine requires large amounts of water in the mineral leaching process, which poses risks of water depletion and water contamination. (24) The release of toxic materials in both gas and solid form into the environment can wreak havoc on ecosystems, as well as nearby communities that drink the contaminated water or unknowingly inhale toxic gases and dust particles. (25) Despite these known hazards, open pit mining is appealing to mining companies because of the wealth of minerals to which it provides access. (26) As a result of extensive mining interest in the region, Latin American communities are familiar with mining's potentially devastating effects on society and the environment. (27) In Honduras, the San Martin mine run by Canadian company Goldcorp operated from 2000 to 2009. (28) By the conclusion of operation, the site showed evidence of acid drainage, while blood tests performed on members of communities living near the mine reflected dangerous levels of lead and arsenic. (29) The San Andres mine, which has operated in Honduras since 1989, faced claims that it inappropriately relocated communities and caused a cyanide spill, which contaminated the Lara River, the primary source of water for several communities. (30) As more research suggests that side effects on the environment and health are long-lasting, a growing number of communities and activists continue to oppose open pit mining and advocate for a change in mining laws. (31)

      The need for changes regarding open pit mining practices extends beyond Honduran borders, as several other countries have already experienced firsthand the perils associated with open pit mining. (32) Officials shut down the Bellavista gold mine in Costa Rica in 2007 after heavy rainfall caused extensive earth movement and resulted in cyanide-tainted waste contaminating the water supply and soil. (33) After dumping its waste into the adjacent bay for 16 years, the owner of the Philippine Marcopper Mine built an earthen dam in a river in 1991 to maintain the mine's waste. (34) The dam burst in 1993 and flooded villages downstream, sweeping away houses and killing livestock. (35) The Alumbrera mine in Argentina has effectively caused desertification due to the high quantities of water that its mining requires, preventing farmers from successfully raising crops and forcing them to relocate. (36) Based on the damages and side effects resulting from careless open pit mining, these countries' laws reflect their attempts to prevent similar mistakes from happening again. (37)

3. OPEN PIT MINING LAWS

   1. Overview of Open Pit Mining Regulations

      Although use of the open pit mining process may be preferable in certain circumstances, there are a number of dangers associated with it, and countries have accordingly enacted laws to address concerns about these dangers. (38) Common laws and regulations throughout the mining industry include the taxation of minerals extracted through open pit mining and the imposition of extensive mine reclamation requirements once the mine ceases to operate. (39) The complete and outright ban of the open pit mining process, however, is a relatively new method of addressing issues connected with a specific type of mining. (40) While prohibiting open pit mining eliminates concerns regarding its dangerous and long-lasting effects, it faces worldwide resistance and has not always accomplished its intended goal. (41) As alternatives to outright open pit mining bans, governments have started to impose more extensive material use restrictions, mine location restrictions, and mine reclamation standards. (42)

      1. Material Use Restrictions

         A common piece of legislation is one which imposes restrictions on practices at the mining site, such as setting strict regulations regarding materials used in the mining process. (43) Several countries and provinces have enacted outright bans on the use of toxic chemicals such as cyanide. (44) The Argentine province of Chubut has banned the use of cyanide in any mining projects located within the province. (45) The provinces of Rio Negro, Tucuman, and San Luis banned the use of mercury, while the province of Cordoba also banned the use of uranium in mining operations. (46) Costa Rica's 2010 ban on open pit mining included a general suspension of all exploration projects in which companies used cyanide and mercury to extract minerals. (47) The state of Montana first voted to ban the use of cyanide in 1998, while countries throughout Europe have been addressing and imposing restrictions on cyanide use since 1997. (48)

         Although concrete data supporting the effectiveness of cyanide bans may be limited at this point, as many bans have also faced challenges and lawsuits, the fact that cyanide is quite commonly used in open pit mining suggests that banning its use may be an effective alternative to banning open pit mining. (49) The majority of open pit mining involves a heap-leaching process with cyanide. (50) The process first involves digging large pits in the ground, placing a heap pad or rubber blanket at the bottom of the pit, and piling the extracted ore into the pit and on top of the heap pad. (51) Miners then spray a cyanide solution over the ore and, as it trickles through the...