3. The institutional and regulatory frameworks of mining activities in Brazil

Abstract

This chapter describes the main legal instruments of the mining regulatory framework in Brazil and provides an overview of the institutional setup in the country. The section offers an overview of the regulations that aim at fostering the geological potential and access to mineral substances in Brazil and identifies regulatory gaps that affect the performance of the sector. Finally, the chapter addresses the recent reforms that have taken place to improve the legal framework of the mining sector.

Institutional landscape

Governmental institutions related to mining regulation

Figure 3.1 shows the organisation of institutions involved in the regulation of the mining industry in Brazil. There are several entities involved in the regulations of safety, labour, and environmental standards in the Brazilian government. This subsection describes the functions and competencies of each of these institutions.

Figure 3.1. Federal government institutions related to the mining sector in Brazil

National Mining Agency (ANM):

In 1934,1 the National Department of Mineral Production (DNPM) was created as a division of the Ministry of Agriculture, Trade and Public Works, with the objective of managing, regulating, and inspecting the sector (Câmara dos Deputados do Brasil, 2013[1]). In 1960, the Ministry of Mines and Energy (MME) was created, absorbing all matters related to mining, and thus, the DNPM was transferred to the MME. Additionally, the Secretariat of Geology, Mining and Mineral Transformation was established as the unit in charge of dictating the public policies for the mineral sector. The National Mining Agency (ANM) substituted the DNPM in 2017.

The National Mining Agency (ANM for its acronym in Spanish) is the regulatory body for the Brazilian mining sector. Created in 2017 by Law N^o13 575, the ANM is an autonomous federal institution linked to the Ministry of Mines and Energy and whose objective is to “promote the management of mineral resources in the Union, as well as regulate and supervise activities that involve the use of mineral resources at the national level”.2 It was created to replace the National Department of Mining Planning (DNPM),3 as part of a set of initiatives to review and update the mining regulatory framework, including the promulgation of a new Mining Code.

ANM is responsible for a series of functions of different types. Thus, the ANM designs, implements, and supervises compliance with the mining regulatory norm (NRM). Likewise, the agency has the sanctioning authority in case of breaches of safety regulations. Regarding information management, the ANM also requests and consolidates the information on the mining sector provided by the holders of mining rights. Likewise, the ANM administers the mining registry, and the registry of property titles and mining rights and regulates the exchange of information on mining operations between the authorities and entities of the Union, the States, the Federal District, and the Municipalities. Another type of function performed by the ANM is the granting of mining titles: exploration permits for all mineral substances and mining concessions for a certain group of minerals.4

Finally, the ANM also fulfills fiscal functions since, in addition to regulating and supervising the compliance of safety and technical standards, it also collects and manages mining income and contributions from the Financial Compensation for Operating Mineral Resources (CFEM), the Annual Rate per Hectare (TAH) and the fines imposed by the same agency.

Civil House

The Civil House is an institution with ministry status linked to the Presidency of the Republic. Its main responsibilities are i) the co-ordination and integration of government policies, ii) the evaluation and monitoring of government policies, iii) the administration of the institutions that are part of the federal public administration, and iv) the co-ordination of activities of the ministries.

Ministry of Mines and Energy

The Ministry of Mines and Energy (MME) was created in 1960, the year after when mining and energy activities ceased to be the subject of the Ministry of Agriculture, Commerce and Public Works. The MME has 4 secretariats that propose national guidelines and policies in their areas of activity: the Secretariat of Petroleum, Natural Gas and Biofuel, the Secretariat of Geology, Mining and Mineral Transformation, the Secretariat of Electric Power, and the Secretariat of Planning and Energy Development. As its name indicates, the Secretariat of Geology, Mining and Mineral Transformation oversees the design and issusnve of overarching policies of the mining sector that the ANM must subsequently implement.

Along these lines, another function of the MME is to monitor and evaluate the performance of the geology, mining, and mineral transformation sectors, with the aim of promoting updates and corrections to existing regulatory models.

Regarding mining concessions, the MME grants and decides on the validity or expiration of mining concessions for specific substances 5 not covered by the ANM, such as metallic substances and mineral waters. Likewise, the MME grants the approval of the assignment or transfer of these mining concessions.

Secretariat of Geology, Mining and Mineral Transformation of the Ministry of Mines and Energy

The Secretariat of Geology, Mining and Mineral Transformation is the body through which the Ministry of Mines and Energy creates, co-ordinates, and implements the Brazilian mineral policy. Thus, the Ministry of Geology, Mining and Mineral Transformation evaluates the performance of the mining sector, of conducts sectoral planning studies, and of proposes actions to achieve the sustainable development of the sector. Along these lines, this Secretariat is also responsible for promoting and co-ordinating preventive and corrective actions and measures that aim to ensure rationality, good performance, technological updating, and compatibility with the environment of the activities carried out by mining companies. Likewise, this Secretariat co-ordinates the process of granting mining rights and supervises the inspection of mineral exploration and production.

Ministry of Economy (ME)

The Ministry of Economy was created in 2019 and integrated functions of the former ministries of Finance, Planning, Development and Management, Industry, Foreign Trade and Services, and Labor. Given its composition, it has a wide and diverse range of areas of competence, which range from currency and price management, social security, to international negotiations related to foreign trade. The Ministry of Economy is also in charge of formulating national strategic planning, as well as formulating policies for the development of industry, commerce, and services. In this sense, its regulations must be consistent with the development plans and economic growth policies established by the federal government.

Special Secretariat for Social Security and Labour of the Ministry of Economy

The Special Secretariat for Social Security and Labor is one of the secretariats of the Ministry of Economy. It was created in 2019 and oversees the development and implementation of labor policies since the Ministry of Labor was eliminated the same year. In the mining sector, the Special Secretariat for Social Security and Labor is jointly responsible – together with the ANM – for regulating occupational safety and hygiene standards. The Secretariat, through teams of regional inspectors specialised in safety engineering, carries out labor inspections and imposes the corresponding sanctions.

The Secretariat of Competition Advocacy and Competitiveness of the Ministry of Economy

The Secretariat of Competition Advocacy and Competitiveness is responsible for the promotion of good regulatory practices and for the fostering better regulation in the country, including regulatory policy analyses. The Secretariat is in charge for the implementation of the Law of Economic Freedom (2019) which, among other elements, encourages the de-bureaucratisation of the public administration and the reduction of administrative burdens.

Brazilian Institute of Environment and Renewable Resources (IBAMA)

The Brazilian Institute of Environment and Natural Resources (IBAMA), created in 1989 by Law 7 735, is an autonomous federal entity linked to the Ministry of the Environment. Its main functions are: i) to exercise the power of environmental enforcement, and ii) to execute actions to enforce national environmental policies – defined by the Ministry of the Environment – related to environmental licensing, authorisation for the use of natural resources and environmental controls. Besides, IBAMA’s other responsibilities are related to proposing and updating environmental quality standards, evaluating environmental standards, and generating and disseminating information related to the environment.

National Health Surveillance Agency (ANVISA)

Created in 1999 by Law 9 782, the National Health Surveillance Agency (ANVISA) is an autonomous entity that has financial and administrative independence. It is linked to the Ministry of Health. Its objective is to promote the protection of public health through the sanitary control of the preparation and commercialisation of products and services subject to sanitary regulation. Regarding the mining field, ANVISA has powers in relation to the pre-market 6 phase of drinking mineral water.

National Nuclear Energy Commission (CNEN)

The National Nuclear Energy Commission, created in 1962, is an autonomous governmental agency linked to the Ministry of Science, Technology, and Innovation. Its purposes are the following i) to collaborate in the formulation of the National Nuclear Energy Policy, ii) to carry out research, development, promotion, and provision of services related to nuclear technology and its applications for peaceful purposes and iii) regulate, license, authorise, control, and supervise this use. Regarding mining, CNEN is responsible for enforcing regulations on infrastructure and operational safety in uranium mines since the extraction of radioactive minerals is a state monopoly. CNEN provides the necessary technical standards that uranium mining operations must meet (see CNEN Resolution 28/04),7 while ANM regulates the standards for other types of mining operations.

Geological Survey of Brazil (SGM-CPRM)

SGM-CPRM was founded in 1969 under the name of Mineral Resources Exploration Company (Companhia de Pesquisa de Recursos Minerais – CPRM) and, in 1994, it became the Geological Survey of Brazil,8 a state-owned company linked to the Ministry of Mines and Energy – MME. The Geological Survey of Brazil (SGB-CPRM) is the federal agency in charge of the country's geological mapping. The geological surveys carried out by SBG-CPRM are financed with national treasury resources according to governmental programs within the Multiannual Plans (Plano Plurianuais – PPA).9

National Courts of Accounts (TCU)

TCU is the federal government's external control body and assists the National Congress in its mission to monitor the country's budgetary and financial execution and contribute to the improvement of Public Administration for the benefit of society. To this end, it aims to be a reference in promoting an effective, ethical, agile, and responsible Public Administration in Brazil. The Court is responsible for the accounting, financial, budgetary, operational, and patrimonial inspection of the country's public bodies and entities as to legality, legitimacy, and economy.

Regional institutions related to mining regulation

The 26 Brazilian states are autonomous, self-governing entities organised with complete administration branches, and relative financial independence. Despite their relative autonomy, they all have the same model of administration, as set by the Federal Constitution.

In Brazil, the Congress and federal agencies, such as ANM and IBAMA, establish the legislation and overarching mining regulations for the country. Given the federative nature of the Brazilian political organisation, the sub-national governments (i.e. states) also have competencies to establish secondary regulations regarding certain aspects of mining activities.10

Besides, states have agencies that overss the enforcement of federal and state regulations such as environmental standards, enviromental impact assessments, as well as safety standards and labour regulations. Therefore, there are are intersections among ANM’s responsibilities and other federal agencies, and the mandates that sub national agencies have, which increases the complexity of the enforcement activities of safety, labor, and environmental standards in Brazil.

Regulatory framework in the mining sector in Brazil

General legal instruments

Figure 3.2 depicts the timeline of the general legal instruments that rule the mining sector in Brazil. As the figure show, the Federal Constitutions is the main norm that governs the mining industry by establishing the how the Brazilian Union administer mineral resources. The Mining Code of Brazil, issued in 1967, set the key regulations that are in place in the mining sectors. The regulatory framework of the mining industry in Brazil has been updated and modified throughout the years.

Constitution of the Federal Republic

The current Constitution of 1988 establishes in its Art. 20^o that mineral resources, including those of the subsoil, are property of the Union. The Constitution also establishes in Art. 21^o that it is the responsibility of the Union to establish the areas and conditions for the exercise of mining, in an associative manner. Likewise, Art. 22^o establishes as the exclusive responsibility of the Union to legislate on deposits, mines, metallurgy, and other mineral resources, while in Art. 49 it establishes that the authorisation of research and mineral exploitation in indigenous lands is the exclusive competence of the National Congress. Finally, Art. 176^o establishes that mineral resources belong to the Union (the Federal Government), but the mined product is owned by the concessionaire.

Mining Code (1967)

The Mining Code (Decree Law No. 267/67) regulates "the rights over the country's mineral resources, the regime for their use and the inspection by the Federal Government of research, mining and other aspects of the mining industry”.11 Thus, the Mining Code establishes the regimes for the use of mineral substances, the rights, and obligations of the owners of the mines and land, and the corresponding sanctions in cases of non-compliance.

Regarding mining regimes, the Mining Code establishes the existence of 5 regimes:

The concession regime
The authorisation regime
The licensing regime
The mining prospecting permit regime
The monopolisation regime 12

Figure 3.2. Development of the regulatory framework of the Brazilian mining industry

Regulatory Norms of Mining (NRM)

Ordinance No. 237/2001 of the former National Department of Mineral Production established the mining regulatory standards (NRM). The objective of these standards is to achieve a rational use of mineral resources. Therefore, it includes technical, environmental and safety conditions that mining operations must comply with. The NRM has 22 chapters, each of which contemplate different topics such as transportation of minerals and people, waste disposal, worker protection, lighting, and ventilation of mines, among others.

Bylaw of the Mining Code (2018)

The Bylaw of Mining Code, established in 2018 by Decree No. 9 406, regulates Decree Law No. 227/1967 – Mining Code –, Law No. 6 567, Law No. 7 805, and part of Law No. 13 575. This decree was part of the Mineral Sector Revitalization Programme initiated in July 2017 and contemplates some of the changes foreseen in the former Social Security Measure No. 790/2017.

In the four chapters contained in the decree, the schemes for the use of mineral resources, the conditions and requirements derived from each one, and the sanctions in case of non-compliance are described. In addition, the Bylaw establishes the competence of the National Mining Agency (ANM) as responsible for observing and implementing the policies and guidelines established by the Ministry of Mines and Energy and enforcing the provisions of the Mining Code and complementary regulations. Likewise, this Bylaw stipulates two sources of income that are part of the agency's budget: the annual rate per hectare (TAH) and the costs of inspections applied to the parts inspected.

The main changes and updates introduced by the new Bylaw include the incorporation of the closure of mines as a stage of the mining activity, the express provision of the responsibility of miners in the environmental recovery of degraded areas, compliance with regulations internments for the calculation of resources and tailings, and the possibility of reuse and regulation of mining waste and tailings.

Law of Economic Freedom (2019)

The Law of Economic Freedom (Law No. 13.874/2019) derived from the Provisional Measure No. 881/19 and was enacted in September 2019. It aims at promoting business activity along with less State intervention. Art. 1 creates the Rights of Economic Freedom, which establish norms for the protection of free enterprise and the free exercise of economic activity and defines the role of the State as a legal and regulatory agent. Four principles underpin the law: i) freedom as a safeguard for the development of any business activity; ii) good faith of the individual in relation to the State; iii) the subsidiary and exceptional intervention of the State in the development of business activity; and iv) recognition of the individual's vulnerability to the State (art. 2).

In line with the promotion of private business activity, the Economic Freedom Law also includes provisions aimed at reducing bureaucracy and administrative simplification through changes in various legal provisions such as the Civil Code, the Companies Law, as well as tax, labor, and insurance regulations. Thus, for example, this law establishes the end of the need for licences for 287 economic activities defined as exhibiting low risk. Likewise, the elimination of the Company Registration Identification Number (NIRE) is established. With regard to labor regulations, this law establishes that only companies with more than 20 employees have the obligation to implement a system of daily control of the working day. The law also establishes that the existing accounting system for social security, labor, and tax obligations (e-social) be replaced by simplified system.

In addition, the law mandates that proposals or alterations to regulations must be preceded by a regulatory impact analysis (RIA) that details the potential economic impacts and assess their suitability (art. 5).

Law of Regulatory Agencies (2019)

Law No. 13 848, promulgated in June 2019, establishes the regulatory framework that supports the eleven regulatory bodies in Brazil, one of which is the National Mining Agency (ANM). In the first place, it highlights the autonomous nature of regulatory agencies in functional, decision-making, administrative, and financial matters.

It establishes that a Regulatory Impact Analysis (RIA) must precede the modifications and proposals to modify regulatory norms. RIA is a methodology for analysing the possible regulatory effects of a norm. In addition, it institutes control and supervision measures for regulatory agencies. Thus, it establishes that all agencies must develop three instruments: i) a strategic plan, ii) an annual management plan, and iii) the regulatory agenda. The first two are long-term (4 years) and short-term (1 year) planning tools, respectively, while the regulatory agenda is a planning tool that contains priority issues for the agency. In line with these control measures, Law No. 13.848 also establishes that each regulatory body must have an ombudsman and that the National Congress, under the assistance of the Federal Court of Accounts, will be in charge of external control of the regulators.

Finally, Law No. 13.848 provides for the co-operation of regulatory agencies with other agencies such as competition defense agencies, other regulatory agencies, and consumer and environmental defense agencies. The objectives of these provisions are to generate an exchange of information, standardise procedures, efficiently implement competition protection legislation, promote regulatory efficiency, ensure consumer protection, and accelerate the issuance of environmental licences.

Regulatory Impact Analysis (2020)

The Decree No. 10.411 establishes rules to apply the regulatory impact analysis (RIA) introduced in the Law of Economic Freedom and the Law of Regulatory Agencies. RIA is mandatory for all public institutions that are part of the federal administration, including autarchic and foundational entities. It describes the circumstances under which RIAs and ex post regulatory analyses should be carried out, as well as the content requirements and publication processes (see Box 3.1). Additionally, the Decree mandates the elaboration of an agenda of ex post evaluations, which should include at least one normative act and must be published in the institution’s website. The agenda is expected to comprise an entire presidential term (4 years). Finally, regulatory impact analyses shall be made publicly available in each institution’s website.

Law 14.066 (2020)

Law No. 14.066, enacted in October 2020, makes major changes to the National Dam Policy (Law No. 12.334), the Law of the National Environment Fund (Law No. 7.797), the National Water Resources Policy (Law No. 9.433) and the Mining Code (Law No. 227). This law increases the requirements for companies in terms of dam safety. Thus, the law prohibits the construction of dams with the upstream method and orders the dismantling of dams of this type until 25 February 2022. These policies were enacted in response to Mariana and Brumadinho's accidents. In addition, the law makes it mandatory for the Dam Safety Plan to include the use of risk analysis techniques and the development of a flood map. The new legislation also sets minimum and maximum limits for fines for non-compliance with safety standards: USD 400 and USD 200 000, respectively.

The new law also obliges mining companies to prepare an Emergency Action Plan for those responsible for mining dams. This plan must also be presented to the local population before the first filling of the dam reservoir begins. Besides, the law also determines that areas degraded by environmental accidents or disasters, such as those of Mariana and Brumadinho, are among those that have priority to receive resources from the National Environment Fund (FNMA).

In the next subsections, specific regulations applicable to different aspects of mining activities in Brazil will be analysed in more detail.

Box 3.1. Content of the regulatory impact analysis in Brazil

With the enactment of the Decree No. 10 411, institutions in Brazil are required to prepare a regulatory impact analysis of regulatory proposals, modifications, or elimination of legislations. The Decree defines the elements that a RIA study should contain, which include:

Executive summary, objective and concise with simple and accessible language;
Identification of the regulatory problem, including its causes and scope;
Identification of the economic agents, users of the services and other stakeholders affected by the problem;
Legal instruments that support the proposal;
Definition of the objectives;
Description of the alternative solutions to the identified problem, considering the option of not regulating and non-regulatory alternatives;
Presentation of the potential impacts for each alternative, including regulatory costs;
Considerations regarding information and comments that the RIA received during a stakeholder engagement processes;
Mapping of the international experience regarding the measures chosen for solving the regulatory problem;
Identification and definition of the effects and risks of drafting, changing or eliminating the normative act;
Comparison of the considered alternatives, including an analysis that describes the methodology chosen for each specific case and the alternative or combination of alternatives suggested and that it is considered the most adequate one for solving the regulatory problem and achieving the objectives; and
Description of the implementation strategy of the suggested alternative, including monitoring and evaluation measures.

Source: Decree No. 10.411/2020.

Regulations to foster the geological potential of Brazil

Geological surveys in Brazil have a relevant role in providing data to improve the capabilities of prospectors, junior mineral exploration companies, and major mining companies to find new mineral deposits. They provide essential data that constitutes one of the bases for supporting the regulatory framework of the mining sector

The Geological Survey of Brazil (SGB-CPRM) is the federal agency in charge of the country’s geological mapping. At the state level, currently there are no substantial initiatives regarding the development of geological cartography projects. Conducting geological surveys, understood as geological mapping over the territory, represent one of the primary statutory tasks of the SGB-CPRM.

The geological surveys carried out by SBG-CPRM are financed with national treasury resources according to government programs within the Multiannual Plans (PPA).13 SGB-CPRM’s Directorate of Geology of Mineral Resources, through the Department of Geology, is responsible for carrying out the geological mapping programs at the agency.

SGB-CPRM geological mapping projects are defined, in general, during the planning stage of the PPAs, when the areas to be mapped during the four-year period covered by the programs are defined. The selection of land areas for geological mapping projects in SGB-CPRM is based, fundamentally, on the strategic importance of each area, considering its mineral potential and level of previous geological knowledge. The boundaries of such areas are defined, in general, by the limits of map sheets derived from the International Map of the World on the Millionth Scale.

The mapping of consolidated mineral provinces, such as the Carajás Mineral Province (Pará state) and the Iron Quadrangle (Minas Gerais state), as well as emerging ones, such as the Juruena-Teles Pires Province (Mato Grosso state), is considered strategic. Through these geological surveys, the SGB-CPRM aims to provide data and information to foster investments in the Brazilian mining sector in the various regions of the country. The geological mapping projects of SGM-CPRM comprise five stage, which are summarised in Figure 3.3.

Figure 3.3. Process to conduct geological surveys in Brazil

In general, the consolidated or emerging mineral provinces have a good level of geological knowledge when compared to vast areas of the Brazilian territory where the geological knowledge is immature and compatible with the scale of regional recognition. These areas are located mainly in the Amazon Region, and commonly incorporate indigenous lands and environmental conservation units.14

In this process, ANM can provide access to mining companies’ geological data, if there is an agreement between parties, since the result of the mineral exploration activities presented to ANM in the Final Exploration Report (Relatório Final de Pesquisa – RFP) are classified. Therefore, these data are not, in general, shared with SGB-CPRM. Box 3.2 summarises how ANM manages the geological data of mining companies that hold mineral exploration titles.

With respect to the geological data administration, SGB-CPRM uses desktop applications to feed thematic databases 15 which are migrated to a database system. Currently, all databases in this company are being reviewed and restructured, and a more versatile data entry application is being developed. Regarding the geological data administration, SGB-CPRM uses desktop applications to feed thematic databases which are migrated to a database system. Currently, all databases in this company are being reviewed and restructured, and a more versatile data entry application is being developed.

Box 3.2. ANM’s management of geological data from exploration mining companies

According to the Mining Code, when concluding the exploration stage, all exploration permit holders must submit to ANM the Final Exploration Report (RFP), which can be assessed as positive (if a mineral deposit with economic perspectives was identified) or negative (if no mineral deposits were identified during exploration). A positive RFP must indicate the geological characteristics of the deposits and the quantities of mineral resources. The geological data contained in RFP are not made available to the public. These reports are submitted to the ANM through a filing system but are not stored in digital databases.

Source: Brazilian Mining Code (Decree Law No. 267/1967).

After the publication of the survey projects’ products, SGB-CPRM conducts several transparency initiatives in order to generate a wide dissemination of the geological information, such as launch events, lectures at technical-scientific events or conferences when requested by interested parties.

Finally, it is important to point out that in Brazil geological data collected through surveys may be used to define mining concessions. They are made publicly available for multiple uses, including private parties to define areas of interest requested to ANM. In this sense, ANM has no role in the management of geological surveys, which are mainly carried out by SGB-CPRM.

Regulating the access to mineral resources in Brazil

ANM has a key role in granting mining titles for large, middle-tier, and artisanal small-scale mining activities. Currently, the authorisation and concession regimes are not consolidated into one streamlined integrated process that may benefit interested parties by reducing administrative burdens and the time to obtain mining permits. Likewise, ANM does not have any power to oversee the authorisation of mineral smelting and refining activities.

According to Article 176^o of the Federal Constitution of Brazil, mineral resources belong to the Union and its property is distinct from that of the surface. Article 2^o of the Mining Code (Decree Law No. 227/1967) establishes the legal procedures to access minerals (referred to as mineral substances in Brazilian legislation), which comprise the regimes of authorisation, concession, licensing, artisanal mining permitting, and monopolisation of radioactive minerals. ANM has a central role in the regulatory process for the management of mineral titles’ requests in Brazil. According to item § 2, article 3 of the Mining Code, it is the responsibility of the former National Department of Mineral Production (DNPM), succeeded by ANM, to execute the Code and its complementary regulations.

The Authorisation and Concession Regimes are applicable to any mineral substances and can be approached as a single regime, since they are sequential, and the former depends on the latter. The rules and procedures for these regimes are laid out in the Mining Code. The authorisation regime applies to the mineral exploration stage and the concession regime to mineral production. The process of obtaining a mining title within the authorisation and concession regimes is described in the Mining Code and the Decree No. 9.406/2018 (Regulamento do Código de Mineração, NRCM). This is summarised in Figure 3.4.

On the other hand, the Licensing Regime is applicable to mineral substances that can be directly mined without an exploration phase. The rules and procedures for this regime, including the mineral substances that can be subject to it, are established in Law No. 6.567/1978.16 The range of duration of licensing title can be between 1 to 20 years. Under this regime, mineral resources can only be exploited by the owners of the property or by those who have their express authorisation (Art. 2o of the law).

The Artisanal Mining Permit Regime is ruled by Law No. 7.805/1989 and regulates the extraction of specific mineral substances (such as gold and precious gems). Its main characteristic is that it is intendeds to support a category of miners known as garimpeiros. These artisanal miners can work individually or associated in cooperatives.17 The permit is granted for 5 years and can be successively renewed at the discretion of ANM (item I, article 5o of Law No. 7.805/1989).

The Monopolization Regime underpins the exploration, exploitation or processing, and commercialisation of nuclear minerals and its derivatives. The National Mining Agency does not regulate these mineral substances as they are part of a Federal monopoly.

Figure 3.4. Summary of the authorisation and concessions regimes in Brazil

Finally, in addition to these regimes, there is the Extraction Register regulated by ANM Resolution No. 01/2018. This regime allows bodies of municipal, state, and federal administration to extract mineral substances for immediate use in civil construction works directly executed by them.

The authorisation permit is an exploration title.18 The mining concession, licensing and artisanal mining permits are titles that cover mining and processing activities. In addition to the mining title areas, ANM, on request, may constitute easement areas (áreas de servidão), which allow concessionaires to use portions or strips of land for auxiliary mine installations, such as piles, tailings dams, roads, or pipelines. All mining titles are negotiable, and the titles’ transfers must be registered by ANM. The rules for obtaining ownership are the same for the authorisation and concession permit, the licensing and the artisanal mining permit and are summarised in Figure 3.5.

Figure 3.5. Rules for obtaining ownership of mining areas in Brazil

Besides the mining easement, ANM can also approve the delimitation of areas and declare public utility for expropriation purposes, according to item XXI, Article 2º of Law No. 13.575/2017.

In Brazil, a mining concession 19 can cease for the following causes: a) expiry/forfeiture of the concession, b) express waiver of the concession, c) mineral depletion. Article 65 of the Mining Code establishes the situations in which the expiry of an exploration permit or a mining concession shall be declared by ANM.

It should be noted that ANM has no legal mandate to grant metal smelting and refining authorisations and only grants titles for exploration and mining activities (including ore concentration and processing). There are other governmental institutions involved in the process of granting mineral titles. Figure 3.6 summarises this institutional framework and shows a variety of entities in Brazil that comprise a network of federal and local authorities with power to approve or deny the granting of mining titles and environmental instruments for mineral extraction and processing. These institutions establish different layers of regulations which overlap with each other, making complex the granting of mining titles.

In general, Brazilian or foreign investors are treated alike in the process of granting mineral titles.20 Both agents may constitute companies under Brazilian law and have their headquarters and administration in the country.

For mining titles of concessions located in the borderland strip (Law No. 6.634/1979) or indigenous lands (item § 3, Article 231, Federal Constitution) there are special provisions in place. In the first case, there are special rules to grant titles on the borders for national security reasons, while in the second case granting mining titles is prohibited because the legal framework does not allow it. It should be noted that mining on indigenous lands has not yet been regulated and is therefore illegal.

Figure 3.6. Other institutions involved in the process of granting mining titles in Brazil

Mining safety and health regulations in Brazil

In Brazil, the mortality rates in the mining sector (due to accidents at work) are larger compared to other economic sectors (Parreiras de Faria and Dwyer, 2013[2]). The agency in charge of enforcing safety regulations in the mining industry is the National Mining Agency (ANM). This entity oversees the regulation and enforcement of mining safety standards. Regarding mining safety, ANM has regulatory, supervisory, monitoring, and sanctioning functions. ANM has the legal mandate to enforce the Mining Regulatory Norms (Normas Reguladoras de Mineração – NRM).21 Nevertheless, an overview of mining safety regulation in Brazil shows that there are overlaps among ANM’s safety regulatory responsibilities and the legal mandates of other entities (see Figure 3.7).

Figure 3.7. Co-responsibilities on safety regulations in Brazil

Concerning regulations on mining infrastructure and operational safety, ANM is co-responsible with the National Nuclear Energy Commission (Comissão Nacional de Energia Nuclear – CNEN) of enforcing these regulations. CNEN provides the necessary technical standards that uranium mining operations must meet (see CNEN Resolution No. 28/04),22 while ANM regulates the standards for other types of mining operations.

With respect to environmental regulations, the norms for environmental protection are established in the National Environmental Policy Law, which are not under ANM’s regulatory scope. However, Law No. 13.575/2017 establishes that ANM shares the responsibility with IBAMA (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis) to conduct inspections for environmental and safety controls. At the state level, there are several secretariats of environments that grant environmental permits for mining operations and enforce state regulations to protect the environment.23

Besides, ANM’s safety regulatory and supervisory functions do not cover all relevant aspects of mining sector. As Figure 3.8 shows, ANM does not regulate some phases of the mining value chain, such as extractive metallurgy, smelting and refining. Likewise, it does not have any scope in the regulation of uranium mining, on the grounds that it is a state monopoly. Similarly, as Figure 3.9 shows, this agency has no competence on some auxiliary mining activities, such as water management control systems.

Finally, regarding occupational health, hygiene, and labour safety standards applicable to the mining sector, ANM and the Ministry of Economy share regulatory and supervisory powers. The responsibility for regulating occupational health, hygiene, and labour safety standards is shared between ANM and the Special Secretariat for Social Security and Labour of the Ministry of Economy (SSSL-ME). In Brazil, regulations applicable to occupational safety in general have the legal support of Law No. 6.514/1977. Currently, there are 37 Regulatory Standards (NR), aligned to this labour law. The regulatory standard NR-22, approved by Ordinance MT No. 3.214/1978, establishes the regulation of occupational safety and health for mining companies.

Figure 3.8. Summary of safety regulations in the mining value chain in Brazil

Brazil also has legislation on underground mining that restricts the daily working hours of miners to 6 hours and 36 hours per week, which can be extended, exceptionally, to 8 hours per day and 48 hours per week (see Articles 293^o to 301^o of Decree Law No. 5.452/1943 – Consolidation of Labour Laws).

Currently, two legal frameworks, one of the Ministry of Economy and one of ANM, are applied for the supervision and enforcement of mining health and labour safety standards.24 Thus, there are two institutions that carry out labour safety regulations in the mining sector. On the one hand, ANM monitors the compliance of the NRMs. On the other hand, the SSSL-ME monitors the compliance of the NRs. Figure 3.10 shows the process by which this regulatory duplication arises (two entities regulating on the same matter).

Figure 3.9. Summary of auxiliary mining activities regulated in Brazil

In 2000, DNMP and the former Ministry of Labour and Employment (with its Secretariat of Occupational Safety) tried to solve this issue, starting a technical co-operation to review and improve legal instruments. A year later, a working group was formed to develop a common NRM for both institutions. However, it was not possible in the end to publish a common standard and each institution published their own. From then until now both institutions have overseen health and safety supervisory activities in the mining industry.

Finally, it is important to note that mineral water production might generate high risks for human health if not properly regulated and has received much attention over the past years. Regarding drinking mineral water, ANM grants permits to extract this kind of water, while ANVISA (National Health Surveillance Agency) verifies the maximum levels of contaminants in mineral water and supervises its labelling to protect the health of consumers.

ANVISA also performs health inspections to verify the compliance of industrial regulations to process mineral water by extractors. Municipalities grant health licences to process mineral water, and they perform health inspections and enforce safety and health regulations. ANVISA complements the work of local governments by issuing health and safety norms to produce mineral water that are related to the microbiological quality of water, the correct labelling of mineral water, and the maximum levels of contaminants. ANVISA co-ordinates with local and state health agencies, as well as ANM regional units to perform water quality, health, and safety inspections.

Figure 3.10. Relevant actors for the regulation and supervision of mining labour safety standards in Brazil

Implementation and enforcement of the regulatory framework of the mining sector in Brazil

Reforms in the mining regulatory framework

Improvements of the regulatory framework on tailings dams’ safety

In Brazil, the National Dam Safety Policy, established by Law No. 12.334/2010, states that the operator of a dam is legally responsible for the safety of the infrastructure. The ABNT/NBR Technical Standard No. 13.028/2017 regulates the safety of dams and specifies the minimum requirements for the preparation and presentation of mining dam slats. CNRH Resolution No. 143/2012 also establishes general criteria for classifying dams by risk category, potential damage associated to it and by the volume of the reservoir (the tailings pond).31

Much of the current regulations and policy innovations regarding the safety of tailings dams in Brazil has been issued in response to the accidents caused by the detachment of these structures. Two accidents had the greatest impact on the legislation: Mariana (2015) and Brumadinho (2019). Box 3.5 describes both accidents. These two dam failures in such a short period increased public concerns over the safety of tailings dams; in particular, those that have been declared inactive (MDNP, 2020[4]).

Box 3.5. The Mariana and Brumadinho tailings dams’ accidents in Brazil

The Mariana accident in the town of Bento Rodrigues of Minas Gerais corresponds to a failure of the Mariana mine’s tailings dam in 2015. The accident involved Samarco Mineração mining company S.A., a joint venture of Vale and BHP Billington. The accident caused the spill of 33 million cubic meters of iron waste, the contamination of 620 km of waterways along Doce River and the death of 19 people. In 2016, Samarco reached a deal with the Brazilian government to pay up to BRL 24 billion (USD 6.2 billion) over the Mariana dam collapse.

The Brumadinho accident occurred in Minas Gerais and comprised the rupture of the Córrego de Feijão mine’s tailings dam in 2019. The accident involved Vale mining company. The dam failure released 12 million cubic meters of iron ore tailings. The dam’s collapse also caused damage to the surrounding environment including irreparable pollution of the entire Doce River basin. Two hundred and fifty deaths were recorded and 20 disappeared in this accident.

Brazilian environmental agency IBAMA fined Vale S.A. BRL 250 million (USD 66.32 million) for various violations related to a tailings dam that burst at its Córrego de Feijão iron ore mine in 2019. Vale and the attorney general’s office (AGU) reached an agreement on environmental compensation linked to the January 2019 collapse of a tailings dam in Brumadinho, Minas Gerais state. The company will pay a total of BRL 250 million reais (USD 47.2 million) in compensation related to fines imposed by environmental regulator IBAMA and Minas Gerais state.

In February 2021, the Brazilian government and Vale settled that the company pays a total of USD 7 billion as a compensation for social and environmental damages caused by the Brumadinho disaster. Thirty per cent of the settlement will be invested in the city of Brumadinho.

Source: IBAMA (2019[5]), Ibama multa Vale em R$ 250 milhões por catástrofe em Brumadinho (MG), http://www.ibama.gov.br/noticias/730-2019/1879-ibama-multa-vale-em-r-250-milhoes-por-catastrofe-em-brumadinho-mg (accessed 23 September 2021); Globo (2015[6]), Samarco é notificada por governo de MG a pagar multa de R$ 112 milhões – notícias em Desastre Ambiental em Mariana”, http://g1.globo.com/minas-gerais/desastre-ambiental-em-mariana/noticia/2015/11/samarco-e-notificada-por-governo-de-mg-pagar-multa-de-r-112-milhoes.html (accessed 23 September 2021).

There are high risks related to the safety of tailings dams. This topic has pushed the Brazilian mining industry and the mining sector worldwide to ensure adequate management measures to guarantee high levels of safety and environmental protection. A strong criticism coming from the civil society and industry associations was the lack of sufficient inspection of the tailings dams. To tackle this criticism, the Brazilian government conducted a process of revisions of the regulations in an effort to improve and align them with international best practices.

After the accident of Mariana, the former DNPM issued Ordinance No. 70.389/2017 that modified the National Registry of Mining Dams, reviewed the classification criteria for tailings dams, and revised the requirements of the emergency action plan.32 In addition, the SIGBM 33 (Sistema Integrado de Gestão de Segurança de Barragens de Mineração or the Integrated System for the Management of Mining Dams Safety) was established, allowing remote supervision of the safety of the dams by ANM. This is a unique online database that provides ANM and the public with access to key information on each registered tailings dam in the country. Likewise, the ordinance ordered the performance of mandatory periodic safety reviews of the dams (RPSB) based on their risk classification. Every six months, the standard provides for the mandatory regular safety inspection, with the issuance of a Declaration of Stability Condition for each mining dam prepared by a qualified professional. Dams that do not have the DCE or those whose respective stability studies do not guarantee the safety of the structure are immediately banned.

Shortly after the Brumadinho disaster, the Federal Government instituted, by Decree No. 9.691/2019, the Ministerial Council for Supervision of Disaster Response and the Management and Evaluation Committee for Disaster Response, with the participation of several federal public agencies. The Council had the objective of accompanying the actions of relief, assistance, reestablishment of affected essential services, recovery of ecosystems and reconstruction resulting from the disaster. In addition, it required regulatory agencies to inspect all dams with high associated potential damage, which contributed to reducing the population’s apprehension about the safety conditions of mining dams in the country. This Council was active until August 2020. The Ministry of Mines and Energy – MME, for its part, published Ordinance No. 138/2019, which established the Technical Committee for the Monitoring of Mining Dam Safety – CTBMin.

On the other hand, after the Brumadinho accident, ANM Resolutions No. 4/2019 and No. 13/2019 34 prohibited the construction of upstream dams in Brazil, which are characterised by being quite unstable (especially in seismic areas) and by presenting a higher risk of detachment. These types of dams have been preferred by some mining companies in Brazil, as they represent the lowest construction cost. It is estimated that 84 mining dams were built with the same methods as the one of the Brumadinho case.35 Given its greater risk, this type of deposit was already prohibited in other countries in the region, such as Chile and Peru 36 (Valenzuela, 2016[7]).

In addition to prohibiting and determining the mischaracterisation of the upstream dams, Resolution No. 13/2019 brought about important obligations linked to the automatic activation of sirens during emergencies and the establishment of automatic real-time monitoring of dams. In addition, Ordinance 70.389/2017 was amended to improve the guidelines of the flood study.

It is worth mentioning that ANM has taken some actions to mitigate this problem by enacting Resolution No. 51/2020 to establish the Conformity and Operational Assessment of The Emergency Action Plans for mining tailings dams. Under this regulation, a mining company now is required to annually execute, for each of its tailing’s dams, a comprehensive evaluation to check whether the dams comply with current safety standards to operate.37

Recently, the Brazilian government has enacted Law No. 14.066/2020,38 a bill that amends Law No. 12.334/2010 39 and imposes stringent safety rules and inspection for upstream tailings dams in the mining industry. Article 2-A, § 2 of the law now forbids the construction or raising of upstream tailings dams, which are the ones built by placing successive layers of mineral waste one on top of the other (the same type that caused the Brumadinho disaster in January 2019). Besides, the law determines the decommissioning of all these structures by 25 February 2022.40 Mining companies are also responsible for drafting an Emergency Action Plan, which execution is mandatory by those responsible for dams. Likewise, the law establishes that areas degraded by mining accidents or environmental disasters are among those that have priority to receive resources from the National Environment Fund (FNMA). The new legislation also sets fines of up to USD 200 million to mining companies if they fail to comply with the safety rules. It also forbids the construction of potential tailings dams close to communities that are within 10 km downstream or within a 30-minute distance (inside the ZAS or the self-rescue zone).41 In case of a severe infringement of the law, item VIII of Art. 17o-C establishes that a company can also lose its mining title.

Box 3.6 summarises selected strategies implemented by the Brazilian government to tackle the negative effects of the mining tailings spills.

Box 3.6. The governmental reaction to the Mariana and Brumadinho tailings dams’ disasters in Brazil

The disasters in Mariana and Brumadinho increased the dimension of society’s negative perception of mining, while alerting Brazilian authorities about the importance of establishing effective policies for the prevention of new occurrences, aware that such tragedies can no longer be tolerated. In this light, the Brazilian government implemented immediate actions, and committed efforts to promote a concrete change in the mining tailings dam’s safety scenario, with the strengthening of the regulatory framework and the restructuring of the ANM to ensure that it is effective to enforce mining safety standards.

These changes included the following regulatory improvements:

Ordinance No. 70.389/2017 that modified the National Registry of Mining Dams, reviewed the classification criteria for tailings dams, and revised the requirements of the emergency action plan.
ANM Resolutions No. 4/2019 and No. 13/2019 prohibited the building of upstream dams in Brazil, which are characterised by being quite unstable and by presenting a higher risk of detachment.
Law No. 14.066/2020, a bill that amends Law No. 12.334/2010. The law imposes stringent safety rules and inspection for upstream tailings dams in the mining industry.

In the wake of the disasters, the Public Ministry and the Judiciary acted in the cases of socio-environmental damage resulting from mining activity. As an example, it can be mentioned the agreement to repair damages caused by the Brumadinho tragedy, signed between Vale and the government of Minas Gerais, in the amount of USD 7 billion.1

At the time of preparing this report there were several concrete actions in the development phase. An example is the changes to Decree No. 9.406/2018 for promoting the improvement of the sector’s business environment in the country and determining that the closure of the mine may include, among other aspects, the monitoring and of the tailings and waste disposal systems and stability of geotechnical areas.

← 1. See for further details https://www.cnj.jus.br/tribunal-homologa-acordo-de-indenizacao-do-desastre-de-brumadinho-mg/ (accessed 5 January 2021).

Source: Ordinance No. 70.389/2017; ANM Resolutions No. 4/2019 and No. 13/2019; Law No. 14.066/2020.

Despite the improvements in the regulation of the safety of mining dams, Brazil still has some gaps to be filled in the different stages of tailings dam management. In general, the legislation establishes important scopes for the safety of the dams during the operational phase of the mining project, such as that the inspection be carried out during the entire useful life of the project or that there be an emergency action plan (PAEBM).42 Additionally, in the operation stage, the safety of the dams is supervised by the ANM, which oversees the implementation of the safety plans of the mining dams. This can be done through the information registered in the Integrated System of Mining Dams Management (SIGBM) or through on-site inspections.

However, as discussed in an issue further below, the ANM faces severe restrictions in terms of resources and staff that hinders its ability to carry out enforcement and inspections activities.43

Regarding the regulation of tailings deposits in the design stage, Brazilian legislation obliges the mining concessionaire to carry out an environmental impact assessment (EIA) to start its mining activities. However, unlike countries like Chile, it does not establish enough regulations to control the specific risks associated with the management of tailings dams during its construction. When implementing mining projects in Brazil, the mining entrepreneur prepares an Economic Use Plan (PAE)44 to obtain the mining concession, which must be authorised by ANM and is subject to the approval of the respective environmental licences by the competent environmental agency. However, the environmental evaluation does not consider the specific risks associated with the complexity of constructing and operating tailings dams and ponds during long periods of time until its closure.45

Brazil also lacks specific regulations regarding mining tailings in relation to a mine closure plan. In the closure stage, there are no legal provisions regarding the treatment of mining tailings inside a project of mine closure and rehabilitation of impacted areas.46 In the closure stage, there are only general legal provisions regarding the treatment of mining tailings inside a project of mine closure and rehabilitation of impacted areas.47 Therefore, the environmental impact assessment, which includes a plan for the rehabilitation of degraded lands, is used in Brazil to manage matters related to the abandonment of tailings ponds and dams. Brazil is taking steps towards more efficient regulations regarding tailings management after the passing of Law No. 14.066/2020.48

Gaps in the reforms of mining regulations

Reforms to improve mining regulations centered on controlling critical risks and preventing accidents are still pending. There are uneven efforts to modernise and update the mining regulatory framework with a strong focus on tailings dams’ safety in detriment of other areas, such as geomechanical and geotechnical standards, ventilation safety criteria, underground and open pit stability conditions, mine pipelines, etc.

ANM has started a review of certain regulations through its Regulatory Agenda 2020/2021 (Resolution No. 20/2019). However, after the accidents of Mariana (2015) and Brumadinho (2019), reforms of safety regulations in the Brazilian mining industry have focused on increasing the security factor of tailings dams and on specific topics (tailings dam certification, re-use of tailings, fossils exports, economic plans for mineral usage, border strip licensing processes, and management of conflicts in geo-mining territorial ordering). Even though, the constant assessment of technical regulations is necessary to prevent accidents and reactionary policies, there is no plan to review safety regulations and other aspects of the mining regulatory framework such as safety standards and inspection processes.

On the other hand, Brazil does not have an integrated registration system for mining accidents. Instead, ANM obtains information from them through the Occupational Accident Communication Registry, the reports it receives from companies, and the inspections it carries out. However, these different sources of information do not necessarily coincide or are accurate.

In Brazil, since 1970, accidents and occupational diseases in all sectors are registered in the Registry of Work Accidents (CAT) of the Social Security. In addition, ANM can obtain information regarding workplace accidents through the reports it receives from the mining companies, as well as the inspections it carries out. In effect, NRM-01 (Item 1.5.1) and Ordinance 12/2002/DNPM/MME establish the obligation for mining companies to issue annual reports, which must include a record of accidents that have occurred during a year. Likewise, Item 1.6.1 of NRM-01 establishes that mining companies must provide DNMP supervisory officials with reports and records of safety, occupational health, and environmental controls. Besides, NRM-01 requires that workplace accident statistics and reports be kept organised, updated, and available for supervision (Item 1.2.1.18).

Despite the availability of these sources of information, they are dispersed and not consolidated in a unique platform, which makes difficult the management of mining accidents information. On the one hand, there are various studies that point out an underreporting of accidents in the Social Security Work Accident Register (Lopes Correa and Ávila Assunção, 2003[8]) and (Cordeiro et al., 2005[9]). On the other hand, there is a mismatch between the data issued by mining companies and those published by the National Institute of Social Security (INSS).49 Brazil is the fourth country with the highest number of workplace accidents, according to the International Labour Organization (ILO).50 Furthermore, the average number of mining accidents would be up to four times the national average number of accidents. Under this reality and with the inconveniences of the current sources of information on mining accidents, a change towards a new form of registration is considered necessary.

Measures to fight illegal mining and regulatory enforcement for artisanal small-scale mining regulations

Under current Brazilian legislation, illegal mining extraction is fought by a carrot and stick policy. First, ANM performs a carrot policy by deploying campaigns to promote mining cooperatives among small miners. These cooperatives can induce the formalisation of small operations by creating a value chain around mineral processing, especially in the case of the extraction of aggregates, clay, gold, and diamonds.

The Brazilian government, through the Federal Police Department, repress illegal artisanal mining activities (stick policy) applying prohibition measures such as the arrest of illegal miners and the destruction of mining equipment. See also Box 3.7 for a summary of recent initiatives to fight illegal mining in Brazil.

Box 3.7. Recent initiatives to fight illegal mining in Brazil

SGM Ordinance No. 108 of 11 July 2019 created the SGM and ANM Working Group to give greater support to the legalisation of gold mining activities. Throughout the Group’s duration, hearings were held with several companies, associations, and cooperatives, in addition to a technical visit to Santarém, PA and Itaituba, PA, as well as participation in public hearings on the topic, in Santarém, PA and Parauapebas, PA.

The working group stressed that the current legislation authorises public administration bodies – among them ANM and IBAMA – to enter into conduct adjustment agreements that make it possible to take initiatives so that mining in a situation that can be regulated is legalised. From the fulfilment of legal prerequisites – environmental, social, mining, land tenure norms – it is possible to modify this reality and it is from this understanding that the federal government has been working on.

The final report of this working group was completed in November 2019. The main recommendations were:

Institutionally and administratively strengthen the National Mining Agency, in view of its central role in the governance of the sector;
Establish an official and mutual institutional commitment (Term of Adjustment of Conduct), which leads miners to safety and supports the conformity of the activity to the standards of social, economic and environmental sustainability, in a broad and constant effort for formalisation;
Create technical centres and credit lines linked to the formalisation commitment;
Define strategies to strengthen associativism, bringing technical and administrative information and instruction to the best functioning of each enterprise;
Intermediate and provide parameters for the relationship between small and large mining, encouraging mutual trust;
Create a commission or committee that brings together, in addition to mining, the areas of environmental health, science and technology education and work;
Regulate Law No. 7.805/1989 so that it also includes the repeal of articles 11 and 40 of Decree No. 9.406/2018 and gives security to the sector and the National Mining Agency itself in fulfilling its regulatory role;
Control and certify the extraction and legal trade of minerals from the mines;
Regulate Law No. 12.844/2013 regarding the purchase and sale of gold, the recognition, by the Federal Government, that the mining activity goes beyond mining issues and that implementation of isolated public policies will not be able to regularise and promote sustainable development of the activity and enhance its positive participation in society and the economy.

Source: Information provided to OECD by the Secretariat of Geology, Mining and Mineral Transformation of the Ministry of Mines and Energy of Brazil.

References

[1] Câmara dos Deputados do Brasil (2013), 79 Anos do Departamento Nacional de Produção Mineral.

[12] Cohen, M. (1987), “Optimal Enforcement Strategy to Prevent Oil Spills: An Application of a Principal-Agent Model with Moral Hazard”, Journal of Law & Economics, Vol. XXX, https://www.jstor.org/stable/725390?seq=1#metadata_info_tab_contents (accessed on 4 October 2021).

[9] Cordeiro, R. et al. (2005), “Underreporting of non-fatal work-related injuries in Brazil”, Revista de Saude Publica, Vol. 39/2, pp. 254-260, https://doi.org/10.1590/S0034-89102005000200017.

[6] Globo (2015), “Samarco é notificada por governo de MG a pagar multa de R$ 112 milhões - notícias em Desastre Ambiental em Mariana”, http://g1.globo.com/minas-gerais/desastre-ambiental-em-mariana/noticia/2015/11/samarco-e-notificada-por-governo-de-mg-pagar-multa-de-r-112-milhoes.html (accessed on 23 September 2021).

[5] IBAMA (2019), Ibama multa Vale em R$ 250 milhões por catástrofe em Brumadinho (MG), http://www.ibama.gov.br/noticias/730-2019/1879-ibama-multa-vale-em-r-250-milhoes-por-catastrofe-em-brumadinho-mg (accessed on 23 September 2021).

[3] IFC (2007), Guías sobre medio ambiente, salud y seguridad para fundiciones, Grupo Banco Mundial.

[10] Kuramoto, J. (2001), La Minería Artesanal e Informal en el Perú, International Institute for Environment and Development (IIED), https://pubs.iied.org/sites/default/files/pdfs/migrate/G00731.pdf (accessed on 4 October 2021).

[8] Lopes Correa, P. and A. Ávila Assunção (2003), “A subnotificação de mortes por acidentes de trabalho: estudo de três bancos de dados”, Epidemiologia e Serviços de Saúde, Vol. 12/4, pp. 203-212, https://doi.org/10.5123/S1679-49742003000400004.

[4] MDNP (2020), 2020 Country Fiches: Brazil. EU-Latin America Mineral Development Network Platform, https://www.mineralplatform.eu/tools/country-fiches.

[2] Parreiras de Faria, M. and T. Dwyer (2013), Safety and health in mining in Brazil;, University of Gothenburg.

[7] Valenzuela, L. (2016), “Design, construction, operation and the effect of fines content and permeability on the seismic performance of tailings sand dams in Chile”, Obras y Proyectos, pp. 6-22, https://scielo.conicyt.cl/pdf/oyp/n19/art01.pdf.

[11] Vásquez Cordano, A. (2012), The Regulation of Oil Spills and Mineral Pollution: Policy lessons for the U.S.A. and Peru from the Deep Water Horizon blowout and other accidents, Lambert Academic Publishing, Berlin, https://doi.org/10.1016/J.RESOURPOL.2010.08.002.

Notes

← 1. Decree No. 23 979 of 8 March 1934. Available at https://www2.camara.leg.br/legin/fed/decret/1930-1939/decreto-23979-8-marco-1934-499088-publicacaooriginal-1-pe.html (accessed 13 December 2020).

← 2. Art.2, Law No. 13 575.

← 3. The DNPM was created in 1934 as a division of the Ministry of Agriculture, Trade and Public Policy and then, in 1960, absorbed by the new Ministry of Mines and Energy.

← 4. ANM grants mining concessions to extract sand and gravel for construction uses; rocks and other mineral substances, when equipped for cobblestones, guides, gutters, fence posts; clays for various industries; ornamental and cladding rocks; and calcium and magnesium carbonates used in different industries. The Ministry of Mines and Energy grants the concessions for all other mineral substances.

← 5. The substances under the granting power of the MME are base metals (e.g., copper, zinc, aluminium), precious metals (e.g., gold, silver), ferrous materials such as iron ore, and gems (e.g., emeralds and diamonds).

← 6. The pre-market phase of the mineral water industry in Brazil considers the licensing stage of water extraction, the exploration and exploitation phases of water production, as well as the processing of mineral water.

← 7. This norm is available at http://appasp.cnen.gov.br/seguranca/normas/pdf/Nrm401.pdf.

← 8. Although the Companhia de Pesquisa de Recursos Minerais changed its name to Geological Survey of Brazil (Serviço Geológico do Brasil), in Brazil it is still known for its acronym CPRM. That explains the use of the acronym SGB-CPRM.

← 9. The Pluriannual Plans (PPA) are instruments provided in the Federal Constitution in which a set of public policies are declared for a period of four years.

← 10. Sometimes state mining regulations may be more stringent than the federal regulations as it is the case of the regulations of mining activities in the state of Minas Gerais.

← 11. Art. 3, Cap. 1 of The Mining Code. It is important to note that, although the Mining Code is from 1967, it was changed over the years, mainly by Law No. 9.314/1996, by Law No. 13.975/2020 which included new substances in the licensing regime, and recently by Law No. 14.066/2020 which updated and included several articles.

← 12. The monopolisation regime in Brazil applies to the production and exploitation of radioactive substances such as uranium.

← 13. The Pluriannual Plans (PPA) are instruments provided in the Federal Constitution in which a set of public policies are declared for a period of four years.

← 14. The definition of areas to be mapped also considers the guidelines of the National Mining Plan 2030 (Plano Nacional de Mineração 2030 – PNM), published in 2011 by the Ministry of Mines and Energy. The PNM is a strategic document that guides public policies aimed to the development of Brazil’s mining sector considering a period of 20 years.

← 15. The thematic databases fed with information obtained in geological mapping projects are: i) projects, ii) outcrops, iii) mineral resources, iv) petrography, v) geochronology, vi) lithostratigraphy, vii) geochemistry, and viii) paleontology. These databases are available to the public for free consultation and download in the Geoscience System of the Geological Survey of Brazil – CPRM (GeoSGB). Available at http://geosgb.cprm.gov.br/ (accessed 29 September 2020). Maps, GIS, databases, and reports are also available at the Institutional Geosciences Repository (RIGEO). Available at http://rigeo.cprm.gov.br/?locale=en (accessed 29 September 2020).

← 16. Available at http://www.planalto.gov.br/ccivil_03/leis/L6567.htm (accessed 30 September 2020).

← 17. This permit regime will be analyzed in a deeper way in subsection 1.3 of this Chapter.

← 18. Exceptionally, during exploration stage, preliminary mining activities can take place under a legal instrument granted by ANM and known as guia de utilização (paragraph 2 article 22 of the Mining Code).

← 19. According to the Federal Constitution and the Mining Code, the main characteristic of the legal nature of a mining concession is that it is not a traditional concession oriented to provide a public service such as electricity or natural gas. In this case, the Federal Union grants an individual or company the right to economically extract a good that belongs to the Union, that is, it is a concession to exercise of an economic activity to exploit mineral resources.

← 20. Paragraph 1, article 176 of the Federal Constitution establishes that Brazilians or companies constituted under Brazilian laws and with headquarters and administration in Brazilian territory may carry out exploration and mining activities.

← 21. Brazilian NRMs are available at https://anmlegis.datalegis.inf.br/action/actiondatalegis.php?acao=abrirresenhaano&cod_menu=6677&cod_modulo=351 (accessed 09/09/2020). They were modified and consolidated by DNPM Ordinance No. 237/2001.

← 22. This norm is available at http://appasp.cnen.gov.br/seguranca/normas/pdf/Nrm401.pdf (accessed 15 September 2020).

← 23. In accordance with article 23o, VI, of the Federal Constitution of 1988, the Union (Federal Government), the States, the Federal District, and the Municipalities are incumbent of protecting the environment and fighting pollution in any of its forms. Thus, in the environmental jurisdiction, in addition to IBAMA, which focus more on matters at the federal level, there are also environmental bodies linked to States and Municipalities, as well as, in some cases, their respective autarchic institutions. It is important to point out that it is not the focus of this Report the analysis of environmental regulatory affairs since the interest is put on ANM's regulatory governance.

← 24. The social optimality of enforcing safety and labour standards in the Brazilian mining industry from a theoretical perspective is beyond the scope of this report. For a review of microeconomic models that provide an analytical framework to understand the regulation of safety standards in extractives industries like mining, see (Cohen, 1987[12]) and (Vásquez Cordano, 2012[11]).

← 25. For more information about the granting process of ASM mining permits, see https://www.gov.br/pt-br/servicos/requerer-permissao-de-lavra-garimpeira (accessed 9 October 2020).

← 26. The term “small-scale mining” denotes a series of small-scale activities such as digging, marking, panning, and shovelling, leading to the extraction of minerals.

← 27. In this report, informal mining is considered to have the following attributes: 1) it has a reliance on physical labour for all types of operations, making minimal use of technology; 2) it may lack of complete legal mining licences, titles, leases and claims to the mineral areas for exploratory and extractive activities; 3) it exhibits low levels of productivity per mining operation, resulting from relatively small geographical areas; 4) it has low levels of health and environmental safety for miners, workers and local communities; and 5) it exhibits a transient character of employment due to the seasonal dependence of mining. Therefore, informal mining is one that does not comply with some part of mineral legislation and does not recognise workers as employees, not allowing them access to social security and labour benefits, like unemployment insurance, and leading to unacceptable work situations. Informal mining is liable to be formalised if it complies with the requirements of mineral, environmental and occupational health, and safety legislation. This kind of mining remains in the informality with the express intention of staying on the margin of legality and hence avoid the costs and controls imposed by the State (Kuramoto, 2001[10]).

← 28. In the Peruvian legislation, the definitions of illegal and informal mining are established in the Legislative Decree No. 1105 (April/19/2012).

← 29. Illegal mining occurs when the extractive activity removes mineral goods from areas where mining is prohibited, such as public areas, permanent environmental preservation, and indigenous lands. In this case, mining is considered a federal crime since it is removing ores from areas of the Union.

← 30. Available at https://www.in.gov.br/en/web/dou/-/decreto-n-10.239-de-11-de-fevereiro-de-2020-242820142 (accessed 24 February 2021).

← 31. It is important to point that DNPM Ordinance No. 70.389/2017 regulates risk classification criteria based on Resolution CNRH No. 143/2012, considering additional specific safety aspects that applies only to tailings dams. See for further details https://www.in.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/20222904/do1-2017-05-19-portaria-n-70-389-de-17-de-maio-de-2017-20222835 (accessed 24 February 2021).

← 32. This Ordinance revised the standards already issued for dam safety regulations: DNPM Ordinances No. 416/2012 and No. 526/2013. See for further details: https://www.sionadvogados.com.br/en/dnpm-publishes-new-rule-concerning-dam-safety-regulations/ (accessed 25 February 2020). This norm regulates aspects of the planning and design phases, such as, for example, the elaboration of the dam’s flood map of tailings, including the need to identify residences with the number of existing population and identification of social vulnerabilities, such as people with special needs, the elderly, children, among others.

← 33. Available at https://app.anm.gov.br/sigbm/publico (accessed 5 May 2021).

← 34. Available at https://www.in.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/63799094/do1-2019-02-18-resolucao-n-4-de-15-de-fevereiro-de-2019-63799056 and https://www.in.gov.br/web/dou/-/resolucao-n-13-de-8-de-agosto-de-2019-210037027 (accessed 10 April 2021). The last resolution regulates the de-characterisation activities of dams built or raised by the so-called upstream method or by declared method, establishing a structure de-characterisation schedule to be fulfilled by 2027.

← 35. See for further details https://www.metalbulletin.com/Article/3858914/Upstream-tailings-dams-banned-in-Brazil-following-Vale-incident.html (accessed 25 February 2021). See also ANM Resolution No. 004/2019 available at https://www.in.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/63799094/do1-2019-02-18-resolucao-n-4-de-15-de-fevereiro-de-2019-63799056 (accessed 10 April 2021).

← 36. Article 77^o of Supreme Decree No. 040-2014-EM forbids the construction of tailings dams using the upstream method. Available at https://busquedas.elperuano.pe/normaslegales/reglamento-de-proteccion-y-gestion-ambiental-para-las-activi-ds-n-040-2014-em-1163198-2/ (accessed 10 April 2021).

← 37. Available at https://www.in.gov.br/web/dou/-/resolucao-n-51-de-24-de-dezembro-de-2020-296821959 (accessed 22 February 2021).

← 38. Available at https://www.in.gov.br/en/web/dou/-/lei-n-14.066-de-30-de-setembro-de-2020-280529982 (accessed 13 December 2020). The law provides the regulation of safety actions to be adopted in the planning, design, construction, first filling and first pouring phases, operation, deactivation, de-characterisation, and future uses of tailings dams.

← 39. This legislation establishes the regulation of safety actions to be adopted in the planning, design, construction, first filling and first pouring phases, operation, deactivation, de-characterisation, and future uses of dams.

← 40. In relation to the phase of decommissioning and future uses of the structures, the Regulatory Agenda of ANM, established in Resolution No. 20/2019 provides for the regulation of the following activities in the 2020/2021 biennium: i) mine closure, ii) use of waste and tailings, and iii) financial guarantees or insurance to cover risks arising from mining activities. Available at https://www.in.gov.br/en/web/dou/-/resolucao-n-20-de-3-de-dezembro-de-2019-231271506 (accessed 22 February 2021).

← 41. The self-rescue zone (or ZAS for its acronym in Portuguese) stretch of the valley downstream of the dam in which there is not enough time for the competent authority to intervene in an emergency, according to the flood map.

← 42. Recently, ANM published Resolution No. 51/2020 that deals with the conformity assessment and operation declaration of the PAEBM. Available at https://www.in.gov.br/web/dou/-/resolucao-n-51-de-24-de-dezembro-de-2020-296821959 (accessed 22 February 2021).

← 43. Short term measures to tackle the lack of inspections capacity include the publication on 27 January 2021 of a notice of simplified selection process offering 40 vacancies for dam safety technicians, as authorised by Interministerial Ordinance No. 23.478/2020 ME-MME.

← 44. The PAE establishes the conditions for the disposal of tailings for the life of the mine, whether in tailings dams or another method defined in the project. To carry out the referred PAE, an environmental impact study and an environmental impact report (EIA/RIMA) are required. Therefore, it is mandatory to present the EIA/RIMA for tailings deposits in the PAE preparation phase.

← 45. It is important to highlight the special situation of the State of Minas Gerais, the main mining state in Brazil. This State published Law No. 23.291/2019, on February 22, 2019 establishing the State Dam Safety Law. Article 6^o of this Law establishes that the construction, installation, operation, expansion and raising of dams in the State depend on prior environmental licensing. It also forbids the constructions of upstream tailings dams, halts the operation of upstream dams, and mandated the decommissioning of this type of tailings dams. The State of Goiás passed State Law No. 20.758/2020 which regulates specific rules for the environmental licensing of these structures.

← 46. A bottleneck for the implementation of regulation on mine closure is the financial guarantee that mining companies need to calculate and set aside to rehabilitate the damaged area. Mining companies might be concerned with the financial implications of these guarantees, but also with the governance of a potential fund.

← 47. Although the Mining Code does not regulate the mining closure, there are some articles in Decree No. 9.406/2018 that provide general rules, as well as a draft resolution pending at ANM that aims to regulate the procedure for closing mine, which is currently regulated in the Regulatory Norm of Mining (NRM) No. 20.

← 48. It is important to highlight that this law has also amended Article 43-A of the Mining Code establishing that the recovery of the degraded environment foreseen in a mining project should include, among others, the closure of the mine and the decommissioning of all installations, including tailings dams, in accordance with the current legislation.

← 49. An example is the case of Vale, an iron producer, which in a 2005 reported the death of 11 workers, while the INSS published that in that year only 3 people died in the iron ore extraction sector. See for further details https://www.brasildefato.com.br/2016/07/08/acidentes-na-mineracao-superam-em-ate-tres-vezes-a-media-nacional-mostra-fundacao (accessed 5 October 2020).

← 50. See for further details https://agenciabrasil.ebc.com.br/es/geral/noticia/2016-04/brasil-es-el-cuarto-pais-del-mundo-en-accidentes-de-trabajo (accessed 5 October 2020).

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