German Commodities Sector /

How are mining projects approved?

The regulation procedures for the approval and supervision of mining projects are not the same for all natural resources in Germany. They vary depending on the type of natural resource and the laws and regulation they are subject to at the Federal and the Federal State level.

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

Steps for the approval of mining projects of landowners 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 licences

Mining rights are 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 per- mit 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 pro- gramme 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 to use them as collateral with the relevant easements and mortgag- es. The licence expires when proprietary mining rights become valid. The details of the proprietary mining rights are entered in the land register with 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 natu- ral 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 document 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 “rights under the old laws” or “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 con- trast 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 

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 resources 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 Regulation of 15 August 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. Old rights based on § 153 BBergG with the status of a licence (pursuant to § 8 BBergG) are excluded from this.Mining licenses that are deemed to be proprietary mining rights are, like the mining rights under old law, 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

You can find an overview of all mining rights at:

view data

Approval of an operating plan

Exploration, extraction and processing operations that are covered by the BBergG are usually only set up, managed and discontinued if they are based on operating plans. These plans are drawn up by the prospective mine operator and approved by the responsible authority. The approval of such operating 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 resto- ration of the areas affected by the extraction of the natural resources. For further information see chap- ter 7.1 “Managing human intervention 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 operation is necessary, at specified intervals. The main operating plan should generally not exceed a period of two years and should be approved by the responsi- ble authority. Constant coordination between the company and the responsible authority is required to ensure both intensive state control of the mining operations and planning flexibility.
In the context of the phasing out electricity generation using lignite (see chapter 8) the BBergG was amended to extend the normal period for main operating plans for lignite opencast mining, cf. § 52 (1) BBergG.1 This extends the time frame for making changes to plans that have become necessary because of the phasing out of coal and the planning certainty of opencast lignite mining, the end of which is foreseeable because of the early phasing out of lignite. The arrangement also applies to other mining sectors if adequate monitoring is possible, including with a longer inspection period. The competent court for legal action before an administrative court in the first instance was moved to the Higher Administrative Courts (§ 48 (1) No. 14 of the Rules of the Administrative Courts [VwGO]). The purpose of this measure was to speed up and streamline the approval process for general operating plans and all additional permissions associ- ated with this for opencast lignite mining affected by the phasing-out of coal.
In principle, the conditions under which natural resources are extracted in Germany are not directly negotiated between the extractive companies and the government agencies. The conditions for the explora- tion 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 9 on disclosed payment flows and quality assurance.

Water rights-permits

If a mining project involves the use of water, a water rights permit is required in addition to approvals under mining law (see § 8 in conjunction with § 9 WHG (Water Resources Act)2). Water usage of this kind includes but is not limited to:
  1. Abstracting and withdrawing water from surface waters,
  2. Damming up and releasing surface waters,
  3. Removal of solids from surface waters, where this has an effect on water characteristics,
  4. The introduction and discharge of substances into water,
  5. The removal, extraction, channelling and abstraction of groundwater.
Unless one of the aforementioned activities applies, the following activities shall also be considered to be usage:
  1. The damming up, releasing and re-routing of groundwater through plants that are intended or suitable for this purpose,
  2. Measures that have the potential to bring about disadvantageous changes to the quality of the water, permanently or to a significant extent,
  3. The application of hydraulic pressure to fracture rock to prospect for or extract natural gas, crude oil or geothermal energy, including the associated deep boreholes,
  4. The storage of water from deposits that has accumulated during activities set out in number 3 or other activities to prospect for or extract natural gas or crude oil.
If the operating plan under mining law includes the use of water, the mining authority shall decide on granting the permit. The same shall apply to revoking a permit. Decisions made by the mining authority must be agreed with the responsible water authority.
Water-rights permits must be entered in a Water Register (§ 87 WHG), which can be accessed by the public. The rules for the procedure here are governed by Federal State Law.

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 (UVP-V Berg- bau), 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. An example of this can be seen in the following table. In addition, all mining projects are subject to EIAs if they appear on the list of projects subject to EIAs in accordance with Annex 1 of the Law on Environmental Impact Assessments (UVPG).
If an EIA is necessary, a planning approval procedure must be carried out in accordance with mining law. The general public are involved in this procedure, as the plans for the extraction of mineral resources can be accessed by the public and members of the public affected can submit objections. The authorities con- cerned then address the objections and a public hear- ing 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 of the Federal States) and adopted in the planning approval resolu- tion. The planning approval procedure under mining law is also a bound decision, one which is not charac- terised by planning considerations and discretion. In addition, it not only binds the decisions of other authorities at the horizontal level, it also applies to the following operating plans (vertical concentration) as per § 57a (5) BBergG. All publicly available information on environmental impact assessments of mining projects can be accessed on the environmental portals of Federal and State governments.3
In contrast, no planning approval procedure is carried out for operating plan procedures without EIAs. Accordingly, in these cases the responsibility of other authorities to decide on authorisations, permits, licenses, etc. remains unaffected. Where necessary for the actual implementation of an extractive sector project, further authorisations, permits and licenses must be obtained from the relevant authority in each case. These may be water-rights permits4, construction permits, forest conversion authorisations, legal im- mission control approval procedures5, permits under explosives legislation or the granting of exemptions from nature and landscape prohibition regulations.

Public access to environmental information and “authorisation decisions”

The right to environmental information gives every- one free access to environmental information held by agencies that have a duty to disclose information. To achieve this, the Federal Government and Federal States have issued regulations that implement the regulations under international law (the “first pillar” of the Aarhus Convention) and the Access to Environ- mental Information Directive 2003/4/EC of the European Union. A distinction needs to be made between the German Federal Freedom of Information Act (UIG), which governs access to environmental information at federal level, and the environmental information laws of the Federal States, which apply
to agencies in the Federal States that have a duty to disclose information. The general Freedom of Infor- mation Act (IFG) applies in respect of other official information held by federal authorities.

Environmental information (cf. § 2 III UIG) includes both data on the state of the air, atmosphere, water, soil, landscape and natural habitats and information on noise, energy, substances and radiation. According to § 3 I UIG, “agencies that are required to provide information”, i.e. all offices involved in public adminis- tration and not only the “environmental authorities” (cf. § 2 I UIG), must provide access to environmental information.
Anyone who wants access to environmental informa- tion must first make an application (§ 4 UIG) to an agency that is required to provide information. It should be clear from the application which informa- tion the applicant wishes to access. Processing is generally free of charge (§ 12 UIG).
The right to access information may be limited to protect certain interests, a definitive list of which is in the UIG (§ 8 I UIG). These include the protection of personal data, copyright or business and company secrets. It is possible to appeal against the refusal of an application to access information.6
Environmental information on the emissions from individual plants for natural resources extraction (and other industries) is made available to the public upon application. This information includes authorisations granted to companies, permits and licenses for the ef- fects on the environment. Decisions on authorisations that have considerable effects on the environment must be independently published by the relevant authorities (cf. § 10 II).7 Some Federal States use extensive “Environmental portals” to publish authori- sation decisions and general environmental informa- tion.8 There is a central internet portal at the federal level, which provides information on environmental impact assessments described above in 3.b iii. Since 2021 this portal can also be used to disseminate general environmental information (cf. § 10 III UIG).9 The provision of these authorisation decisions is also generally free of charge.
Citizens can find out specific information on effects on the environment authorised by the authorities from the authorisation decisions. As an example, excerpts are quoted from the decision “Water-rights permit (…) to discharge salty waste water from the Neuhof-Ellers and Werra plants into the River Werra” for the company K+S Minerals and Agriculture GmbH in Philippsthal.10 The company breaks down potassi- um-based salts in the works and discharges salty waste water into the River Werra during this process. The authorisation decision of the Regional Council in Kassel specifies the volume of salty waste water that it is permissible to discharge. In addition to this, aspects are addressed extensively such as the involve- ment of the public and the effects on protected resources such as “water”, “human health”, “animals, plants and biological diversity” and “landscape”.

1 Federal Mining Act (BbergG):    https://www.gesetze-im-internet.de/bbergg/

2 Water Resources Act, available online at: https://www.gesetze-im-internet.de/whg_2009/

3 Federal government’s EIA portal (https://www.uvp-portal.de/), EIA network – environmental impact assessments of the Federal States (https://www. uvp-verbund.de/portal/), as an example the EIA portal of Lower Saxony (https://uvp.niedersachsen.de/startseite).

4 also a glossary for the Water Resources Act (WHG); on the legal framework for abstracting water also Chapter 7.1 d.

5 glossary for Federal Immission Control Act (BImSchG).

6 The origin of the information and text passages is the German Federal Ministry for the Environment. These and further information can be accessed at: https://www.bmu.de/themen/bildung-beteiligung/umweltinformation/umweltinformationsgesetz/ (Accessed on 15 December 2021).

7 Information on where such information can be accessed or found is sufficient

8 Example: Environmental portal of North Rhine-Westphalia (https://www.umweltportal.nrw.de/); Lower Saxony (https://numis.niedersachsen.de/ portal); Thuringia (https://www.umweltportal.thueringen.de/) An overview of existing environmental portals can be accessed via https://rohstofftrans- de/download/#umweltinformationen.

9 The central internet protal can be found at: https://www.uvp-portal.de/.

10 The complete decision can be downloaded and viewed at https://rohstofftransparenz.de/download/#umweltinformationen oder https://www.uvp-ver- de/documents/ingrid-group_ige-iplug-he/EEBA0F02-E468-4AE8-A148-D11193D8D737/Erlaubnisbescheid_2021_final.pdf.

LEGAL FRAMEWORK AND PUBLIC AUTHORITIES

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