Principal applicable environmental laws

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The Brazilian Constitution provides that the federal union, the states and municipalities are all entitled to supervise compliance with environmental laws and impose administrative sanctions such as fines, interdictions or restrictions on activities.

Each state has its own environmental agency, that along with IBAMA (the federal environmental agency covering interstate projects or activities with high potential for environmental impact) are the main governmental bodies responsible for environmental licensing of mining activities. There is no environmental code compiling all environmental laws, which are laid down through numerous federal, state, and municipal regulations. However, the main environmental related principles and rules are stated in the Brazilian Federal Constitution, the Forestry Code, Federal Laws Nos. 6,938/1981, 7,805/1989 and 9,605/1998. Decrees Nos. 97,632/1989, 6,514/2008 and 9,406/2018 and regulations from the Environmental National Council (CONAMA).

Environmental review and permitting process

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

With the purposes of assessing and preventing potential risks to the environment the licensing process in Brazil is typically conducted by the state environmental agency where the mining project is located, and is divided into three stages: grant of the preliminary licence, grant of the installation licence, and, finally, grant of the operation licence.

Before starting any project constructing stage, mining companies must apply and obtain a preliminary licence upon submitting an environmental impact study report (EIA/RIMA) to the respective environmental agency. After the environmental control, reclamation and decommissioning plans have been approved by the environmental agency the mining company will be able to apply for the installation licence, prior to the commencement of construction. Finally, actual mining activities can only take place after the issuance of the operation licence, which presupposes the implementation of the requirements indicated in the environmental control plan.

Additionally, other permits may be necessary for the development of activities and products’ use, such as:

  • if used, transportation, storage, trade or manufacture of certain chemicals and explosives considered controlled products;
  • use of chainsaws to clear the area;
  • co-processing the final disposal or transportation of residues;
  • use of residues in rehabilitation or degraded areas;
  • wastewater discharge;
  • deforestation; and
  • water capture, among others.
Closure and remediation process

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

Mining companies have to submit studies to the environmental authorities related to the mitigation and compensation measures to obtain its installation licence. These studies must address the reclamation and decommissioning of the mined areas, containing the measures to be implemented throughout the mining process and at its end in order to prevent severe degradation of the area and to minimise impact on the environment.

The decommissioning plan for the project must also be filed with the ANM for purposes of evaluation and determination of further measures and requirements in relation to the efficiency and safety of the mining activities as well.

When mining companies file their applications to close a mine, those applications must also present:

  • a report on the work performed to that date;
  • characterisation of the remaining resources;
  • a topographic and landscape report considering stability, erosion control and drainage aspect; and
  • a work and financial timeline of the proposed decommissioning activities.

Therefore, approval for mine closure is granted by the Ministry of Mines and Energy when the applicant can prove compliance with the decommissioning plan, especially environmental conditions.

Restrictions on building tailings or waste dams

What are the restrictions for building tailings or waste dams?

Federal Law No. 12,334/2010, DNPM Ordinance No. 70,389/2017, and Resolutions No. 143/2012 and No. 144/2012 enacted by the National Council of Water Resources provide the main regulatory framework for construction of tailing and waste dams. Tailing and waste dams require a prior dam safety plan, which shall be composed of:

  • general information in relation to said dam;
  • plans and procedures;
  • registries and checks;
  • periodic safety revision of the dam; and
  • in the case of dams with a high potential of damage to the environment and local communities, the dam safety plan must also contain an emergency action plan.

The level of detail of the content of each of those items will vary depending on the complexity of the dam.

The person in charge of the dam safety plan must be the engineer registered with the Regional Council of Engineering, Architecture and Agronomy as the one technically responsible for implementing the plan in all of its aspects.

Revision of said dam safety plan may vary from three to seven years, depending on how the dam is classified in terms of potential risks. Also, revisions shall occur whenever there are any structural changes or amendments in the classification of the tailings or waste deposited in the dam. The team executing said revision shall be multidisciplinary. Regular inspections also have to be executed by the mining company at least every 15 days.

Law No. 12,334/2010 determines in its article 15 that the National Policy of Dam Safety shall provide the population with an education and communication programme on the safety of dams.

Finally, mining companies are liable for identifying and declaring emergency situations, and take all actions described in the applicable dam safety plan, especially with regard to the local population of potentially affected zones, local public authorities, environmental authorities and the ANM.