The Brazilian mining sector has undergoing several changes in recent years. These are changes that seek to bring more dynamism and legal certainty to the sector, filling old gaps related to mining practice and addressing social and environmental issues in a more responsible way, with clearer standards and in line with international best practices. The goal is to make the Brazilian mining market more attractive to new investors and the development of new projects, with more tools to enable the fundraising needed to do so.
Significant changes were introduced with the creation of the National Mining Agency (ANM) in 2017 and the replacement of the old mining code regulation in 2018, through Decree No. 9,406/18, which brought stricter rules on mine closure and accountability in relation to dams and recovery of degraded areas, as well as new rules on the term of mineral exploration authorizations, encouraging the economic use of mining waste and the introduction of public offerings and electronic auctions for the areas availability procedures.
The rules of supervision and safety of dams also underwent relevant changes, among them the criteria of risk assessment, the guidelines for the elaboration of the flood map and the deadlines for presentation of the map based on the classification of the Associated Potential Damage (DPA) of each dam.
Several rules have already been enacted and others still need to be enacted to increase supervision and requirements on dam safety. Among those already enacted, we have Law No. 14,066/20, which amended the National Dam Safety Policy and ANM Resolutions No. 32/20, 51/20 and 56/21, which provide for safety and supervision of tailings dams and conformity and operational assessment of the Emergency Action Plan for Mining Dams (PAEBM).
In the same vein, RESOLUTIONS ANM No. 59/21 and 71/21 deal with technical cooperation agreements between the ANM, states, federal district and municipalities for mutual cooperation in the performance of actions and activities complementary to the supervision of mining activity provided for by the new mining code.
All this revised legal framework follows the efforts of the federal government released by the Ministry of Mines and Energy under the Mining and Development Program published in September 2020. One of the program's goals is to improve parameters for dam safety, observing points such as regulation, control, supervision, monitoring and responsibilities.
In compliance with Law No. 13,848/19 on management, organization, decision-making and social control of regulatory agencies, ANM disclosed its regulatory agenda[1] with the topics it understands as priorities and has been periodically disclosing the progress of these regulations.
ANM's 2020-2021 Regulatory Agenda was divided into six thematic axes:
- Transverse
- Sustainability
- Mineral research
- Production
- Mineral water
- Financial Compensation for the Exploration of Mineral Resources (CFEM)
Axis 1 – Transversal comprises themes that are a recurring target of questioning the ANM and are intrinsically related to the development of mining activity, such as conflicts arising from mining, availability of areas, guarantees for financing purposes and alternative means for conflict resolution.
The analysis of mediation, conciliation and administrative arbitration as alternative means for conflict resolution stemming from mining activity is in the preliminary phase of ANM studies. The idea is to make up a specific body of the ANM to assist in the resolution of conflicts in accordance with article 2 item XIV and Article 17 of Law No. 13,575/17. These are issues such as conflicts of mining blockades, dismemberment and overlap of areas, conflicts between holders of mining rights and illegal prospectors, quilombolas, indigenous, environmental agencies and other agents with conflicting interests.
On the other hand, the project of collaterals for financing, one of the most relevant of Axis 1 and even of the mineral sector, aims to regulate Articles 43 and 44 of Decree No. 9,406/18. The objective is to reduce transactional costs for private agents and for the administrative activity of the ANM, favoring the autonomy of the parties in the negotiation, contracting and structuring of fundraising operations. The project is in the advanced stage. Preliminary studies and public consultation on the draft resolution have already been completed. However, in February of this year, the Specialized Federal Prosecutor's Office with the National Mining Agency (PFE/ANM) delivered an opinion limiting the issue of the title in the initial research phase, which again delayed the publication of the resolution.
With regard to Axis 2 – Sustainability, the projects being discussed refer to the mine closure plan (which was completed and transformed into ANM Resolution No. 68/21), as well as financial guarantees to cover risks of mining activities – which is still in the intermediate phase, seeking contributions and subsidies for a new normative act. There is a third project that refers to the use of waste pile and tailings and is a matter of great relevance for mining. The public consultation ended in January 2021, and has already had the project forwarded to the General Secretariat of the ANM for PFE /ANM to prepare the final opinion before the completion of the process by the collegiate board of ANM and consequent publication.
Axis 3 - Mineral Research presents two projects, one focused on the system of certification of resources and reserves and the other to the standardization of criteria for application and evaluation of aerophotogrammetry products. The latter (still in the initial phase) aims to standardize the receipt of information obtained from Drones and regulate the use of such devices. The project that discusses the system of certification of resources and reserves is in advanced stage. The draft resolution was presented and the opinion issued by PFE/ANM, leaving only to make the final adjustments of the draft and forward it to the board of directors of the ANM for final deliberation.
Axis 4 - Production has several projects. One of the most relevant is what discusses certification in dams. The project is advanced and is divided into two steps. The first was completed by publishing ANM Resolution No. 56/21 (which amended Resolution 51/20 to (i) determine that the technical responsible for issuing the Declaration of Conformity and Operability of the PAEBM should be different from the technical responsible for the preparation of the PAEBM and (ii) dispose of the study of hypothetical ruptures in force of the dam). The second stage plans to consolidate in a single regulation the legislation today applicable to the safety of dams – which includes Ordinance DNPM No. 70,389/17, ANM Resolution No. 13/19, ANM Resolution No. 32/20, ANM Resolution No. 40/20, ANM Resolution No. 51/20 and ANM Resolution No. 56/21. In addition, it is also expected to include the regulation of innovations brought by Law No. 14,066/20, which changed the requirements for the certification of dams.
One of the several projects of Axis 5 – Mineral Water deals with the telemetry system for monitoring mineral water mining, an important tool to help manage the information of this resource. The public consultation to receive contributions to specify the application of telemetry was closed on August 17 of this year.
Finally, Axis 6 - Supervision and CFEM presents four projects: the regulation of Law No. 13,540/17, which provides for CFEM; the inclusion of new substances in the reference value system; economic and fiscal information of the CFEM; and the national register of the first purchaser of mineral goods from the artisanal mining permit regime.
The draft regulation of Law No. 13,540/17 waits for pfe/anm to express itself and issue its opinion. The project aimed at the inclusion of new substances in the reference value system is at the initial level. It has been impacted by the departure of some team members, and is expected to be included in the 2022 and 2023 regulatory agenda.
The project that deals with the economic and fiscal information of the CFEM is with the collegiate board of ANM for evaluation and approval of the opening of public consultation on new standard. The team responsible for the project has been working on the development of an electronic system focused on the declaration of economic and fiscal information of the CFEM.
The project referring to the national register of first acquirer of mineral goods from the mining permit scheme is in advanced stage and already has draft resolution. The public consultation process was closed in June this year, and the contributions report is in the final stages.
[1] In September 2020, an extraordinary review of the Regulatory Agenda 20-21 was carried out, inserting new themes and changing the schedule of some of the projects already foreseen by the agenda.
