How are mining projects approved?

The procedures for the approval and supervision of mining projects are not all equally regulated for all natural resources in Germany. They vary depending on the type of natural resource and its legal foundation at the federal and the state levels.

Steps for the approval of mining projects of free-to-mine and privately-owned natural resources

Free-to-mine natural resources

Privately-owned natural resources

Proof of ownership

of the land e.g. land leasing contract must be available.

Approval procedures

as per the Federal Immission Control Act   the State’s Excavation Laws   Building Laws   or its Water Resources Legislation    (in wet extraction) are carried out. The materials in question are mostly ‘bulk materials’ from the quarried natural resources sector.

Mining rights

Mining rights constitute the basis for the exploration and extraction of free-to-mine natural resources. Applications are made in the form of a permit, a license or proprietary mining rights. There are three different types of mining rights:

Permit

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).

License

The licence is a mining right which grants the right to carry out exploration operations for free-to-mine natural resources on a specific, licensed mine site. The licence defines “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). A legal entitlement to the granting of a license exists, unless there are grounds for refusal.
The licence may be refused if, for example, it cannot be proven that the resources can be extracted, due to their location and nature (see § 12 BBergG). If extrac- tion work has not started within three years, as a rule, the licence must be revoked (§ 18 BBergG). The grounds for refusal are fully itemised in § 12 BBergG.

Proprietary mining rights

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).

In compliance with § 75 et seq. of the BBergG, mining authorisations and mining maps are created to docu- ment the mining rights. Information about licences, permits, proprietary mining rights and on the mine sites in question is available in these documents.

Special case: Mining rights under the old

The various forms of mining rights described above (permit, licence and proprietary mining rights) are also supplemented by older legal mining rights, which are described as old rights. These are mining rights that were granted before the current Federal Mining Act of 1982 came into force, e. g. the lignite opencast mines in the Rhenish mining region. Under current law, these rights are still valid (see § 149(1), sentence 1 BBergG) if they were shown to the relevant mining authority during a phase-out period of three years after the Mining Law of 1982 came into force and if they were confirmed by mining inspection authorities.
In contrast to mining rights under the new BBergG, rights under the old laws are not time-limited and neither extraction nor mine site royalties have to be paid. In practice, these old rights mainly apply to hard coal and lignite. An operating plan must be approved before these natural resources can be extracted under old law.

Special case: Unique features in the “new” German Federal States

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.

Overview of old mining laws, mining laws in the GDR and modern mining laws

Rights under the old mining laws (West Germany)Rights under GDR mining lawsRights under the modern mining laws
Description of natural resourceFree-to-mine natural resourcesState-owned natural resourcesFree-to-mine natural resources
Description of natural resourceNoNoDecisions made at Federal state level
Time-limitedNoNoYes (see Mining rights)

You can find an overview of all mining rights at:

view data

Approval of an operating plan

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 principle, the conditions under which natural re- sources are extracted in Germany are not directly negotiated between the extractive companies and the government agencies. The conditions for the exploration and extraction of natural resources are generally validated by law and implemented by the respective competent authorities.

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.

Environmental impact assessment

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).

In contrast, no planning approval procedure is carried out for operating plan procedures without an EIA. Accordingly, the competence of other authorities to decide on permits, authorisations, approvals etc. remains unaffected in these cases. Therefore, further approvals, permits and authorisations etc. must be obtained from the respective competent authorities to the extent this is necessary for the implementation of a specific extractive project. These may include permits under water law1, building permits, forest conversion permits, permits under immission control law2, authorisations under explosives law or the granting of exceptions to prohibitions under nature and landscape law.

1See glossary regarding the Water Resources Act (WHG), and the legal framework applicable to water extraction.

2See glossary on the Federal Immission Control Act (BImSchG).