The revised administrative infractions and fines set out by the Mining Code came into effect last August resulting in penalties and fines that could reach R$ 1 billion.
Among the various measures adopted after the disasters that occurred in 2015 and 2019 in Mariana and Brumadinho, in Minas Gerais, the Brazilian Congress issued the Law 14,066 in 2020 that modified the National Policy for Dam Safety and the Mining Code, imposing new obligations on miners and giving more visibility to environmental liabilities in mining.
To regulate such changes, the Decree 10,965/22, published at the beginning of this year, also modified the rules for penalties and fines set out by the Mining Code Regulation (Decree 9,406/18).
Such changes, like others already set out by the environmental legislation on mining, were triggered, among other factors, as a result of the perception that, historically, part of the miners ignored the rules imposed on their mining activities because they considered the value of the imposed penalties and fines modest ones, as well as there was until very recently a perception of reduced law enforcement.
One of the most significant changes brought by Decree 10,965/22 is related to the revision of the administrative infractions and fines that came into force last August 2022. In the past regulation, the i failure to comply with most of the obligations resulted in the penalty of a simple warning and/or fines ranging from R$ 300 to R$ 3 thousand. Only on extreme cases the one that breached the law was punished with the forfeiture of its mining title.
Now, the penalties and fines should be applied more severely with amounts ranging from R$ 2 thousand to R$ 1 billion. In the case of non observation of the obligations set out by the appliable regulatory legislation, depending on the severity of the violation, in addition to the penalties of warning, fine and/or forfeiture of the mining title, the regulation provides the possibility of seizing goods, ores and equipment or temporary suspension - total or partial - of the mining related activities.
As a result of the new decree, the penalties and fines take into consideration not only the type and severity of the damage caused by the violation committed and the aggravating and mitigating circumstances - such as the recurrent acts. They also consider a very debatable subjective element: the economic capacity of the one that is in breach of the law.
Regardless the possibility of imposing a double fine in the event of a recidivist of the one that is in breach of the law, two other new sanctions are worthy attention. It is applicable to:
- practice of mining activities, processing or storage of ores or tailings that result in serious damages to the population and the environment; and
- degradation of the public property and its water and environmental resources due to a mining dam leakage or rupture.
Such infractions can now result, in the last case, in the forfeiture of the mining title, without prejudice to the imposition of fines and civil and criminal liability of the infringing miner.
Causing damage and losses to third parties due to the practice of mining and failure to submit to the National Mining Agency a report of the activities performed annually in the established period were also included in the list of administrative infractions. . It is evident, therefore, the legislator's concern in restraining the conducts of the one that is in breach of the law and whose acts may degrade and impact the environment.
The parameters, criteria and procedures for the imposition of the aforementioned penalties on agents of the mining sector shall be further regulated by a resolution to be published by the National Mining Agency.
As a first step, it was included as a priority in the last regulatory agenda approved by the National Mining Agency the requirement to regulate the administrative sanctioning process of the agency.
Additionally to these changes, aiming to result on greater awareness and accountability of mining companies, the decree also regulated certain obligations for the exercise of mining activities that cover more than the recovery, mitigation, and compensation of the environmental impacts resulting from mining activities.
It becomes mandatory to act to prevent other impacts, including those related to the welfare of the communities involved in or otherwise impacted by the activities of research, mining, processing, transportation, commercialization of ores or the use or storage of sterile and tailings.
In accordance with international best practices, it was explicitly established the responsibility for the welfare of the communities around the mine and for the preservation of the health and safety of those who are directly related to mining activities.
In order to prevent environmental disasters, the mining entrepreneur should prepare and implement a contingency plan[1], in addition to the obligation of recovering areas that may be in some way degraded as a result of its activities.
The recovery of areas due to mine closure and decommissioning of facilities - including any dams or similar infrastructure - includes the obligation to create a destination for future use of the area.
It is also required to monitor the tailings and sterile disposal systems following the geotechnical stability of the mined areas, according to the specific closure plan approved by the competent authorities - which include the National Mining Agency (ANM) and the environmental governmental body responsible for licensing the mine.
[1] Contingency plan that must be integrated to the city's Contingency Plan for Protection and Civil Defense, if any, according to art. 5, §2 of Decree 10.965/22.
