The permit is a mining right which grants the right to carry out explorations for free-to-mine natural resources on a specific, permitted mine site. The permit is time-limited to a maximum of five years and may be extended for a further three years (see § 16(4) BBergG). A legal entitlement to the granting of a permit exists, unless there are grounds for refusal. The permit may be refused if, for example, no work programme exists or the fixed time period is not taken into account in the planning. The grounds for refusal are fully itemised in § 11 BBergG. If explorations have not started within one year, for reasons for which the permit holder is responsible, the permit will be revoked (§ 18 BBergG).
Mining may be carried out under these rights. They include the licence with the possibility of eligibility as collateral with the relevant easements and mortgages. The licence expires when proprietary mining rights become valid. The proprietary mining rights details are entered in the Land Register, viz., the name and address of the applicant and details of the mine site. Proprietary mining rights define “a reasonable period of time for the implementation of extraction in individual cases”. Fifty years may only be exceeded if this is necessary in view of the investment normally required for the extraction. A time extension is possible (see § 16(5) BBergG). If regular extraction of the natural resources is interrupted for more than 10 years, as a rule, the proprietary mining rights must be revoked (see § 18 BBergG). To apply for proprietary mining rights, the applicant must already be in possession of a licence for the mine site in question. Proprietary mining rights may also be refused if, for example, evidence cannot be furnished that an economic extraction of the natural resources is to be expected (see § 13 BBergG).
The mining rights system of the GDR only applied to the (communist) state-owned and other mineral resources. The state-owned natural resources mainly comprised free-to-mine and privately-owned re- sources and were the property of the communist state. Other natural resources primarily comprised landowners’ natural resources and were allocated to the land ownership category. The Bestowal Regula- tion of August 15, 1990 created the foundation for the conversion of mining rights for state-owned natural resources into free-to-mine resources, which were subsequently recognised by the legal system of the reunited Germany. The transferred mining rights are deemed to be proprietary mining rights. Like the mining rights under old law, the transferred rights are not time-restricted and are also exempt from mine site and extraction royalties (see § 149 and § 151 BBergG). In contrast to the Federal States of the former West Germany, the validity of the old rights (see section on mining rights under the old laws) in the “new” Federal States does not only extend until 1980, but also applies to deposits explored up to and including 1990. These rights also apply to both free-to-mine and privately-owned natural resources. Exploration and extraction rights for privately-owned natural resources were also governed by GDR laws on state-awarded mining rights.
Exploration, extraction and benefication operations may only be set up, managed and discontinued if they are based on an operating plan. These plans are drawn up by the prospective mine operator and approved by the responsible authority. The approval of such operational plans is tied to conditions (conditions of approval). These conditions address operational and work safety, the protection of the surface area, the prevention of harmful impacts, the protection of the deposits and the preventive measures regarding the proper restoration of the areas affected by the extrac- tion of the natural resources. For further information see Dealing with interventions in nature and landscape.
Operating plans basically include the following:
• A presentation of the scope of the project
• A presentation of the technical implementation of the project
• The duration of the project
• Evidence that the conditions of approval have been met.
The operation of a mine is dynamic in nature due to the mine’s continuous adaptation to the deposit’s characteristics. This mode of operation also entails specific risks for employees and third parties. Due to these conditions, continuous monitoring of the oper- ation is necessary, at specified intervals. The main operating plan should generally not exceed a period of two years and should be approved by the mining authority. Constant coordination between the companies and the mining inspection authorities is required to ensure both intensive state control of the mining operations and planning flexibility.
In addition to the approval procedures, contractual agreements between companies and government agencies are occasionally concluded. However, as explained above, such cases do not represent the rule but the exception. Where private-law agreements are relevant for extractive companies in Germany, they are listed and explained in chapter 8 covering payment flows and quality assurance.
As with other projects with environmental impacts, environmental impact assessments are also required for projects under mining law. Under the conditions laid down in the Ordinance on the Environmental Impact Assessment of Mining Projects (EIA-V Bergbau), an environmental impact assessment (EIA) or a preliminary examination of the individual mining law case is necessary. As a rule, the EIA obligation for mining projects depends on the size of the project, measured by extracted volumes or the required excavation area. In addition, all mining projects are subject to EIA if they appear on the list of EIA projects subject to EIA under the EIA Act.
If an EIA is necessary, a planning approval procedure must be carried out in accordance with mining law. This procedure includes the affected population by making the plans for the extraction of mineral resources accessible to the affected population so that objections can be submitted. The authorities concerned then address the objections and a public hearing is held, with the participation of all official bodies and persons who have expressed objections. A decision on the objections is made by the competent authority (in this case the mining authorities), and adopted as an administrative act. The planning approval procedure under mining law is also a bound decision, one which is not characterised by planning considerations and discretion. In addition, the plan- ning approval procedure not only binds the decisions of other authorities at the horizontal level, but it also applies to the following operating plans (vertical concentration) as per § 57a(5) BBergG).