The environment in Brazilian Mineral Legislation since 2017

Abstract

The methodological model used in this work was to carry out bibliographical research on the Brazilian mineral legislation in the Federal sphere, listing Laws, Decrees, regulations, ordinances and in force from 2017, until 2022. This survey aims to demonstrate how, and in what way, mineral legislation in Brazil protects the environment, therefore disregarding legal apparatus originating from environmental agencies. In 2018, Decree No. 9,406 was published, known as the New Regulation of the Mining Code, which updated the old text in force since 1968. One of the main advances aimed at environmental protection of this Regulation is the establishment that recovering the environment is an obligation generated as a result of the exercise of the mining activity, in addition to requiring the introduction of an environmental recovery project in the Mine Closure Plan. The Brazilian Mining Code, published in 1967, underwent significant changes in the environmental area, only in 2020 when Law 14,066 came into force, which brought important revisions to the original text, such as the establishment of fines that can reach amounts of one billion reais (BRL 1,000,000,000.00), equivalent to approximately one hundred and eighty million euros (EUR 180,000,000.00) in January 2023, depending on the severity. There were also major advances in issues related to tailings dams, and impacts on the population and the environment, such as leaks or ruptures of dams. In 2020, the concept of environmental disaster was created, establishing punishments for both individuals and legal entities, without distinction of intent or guilt (whether or not there was intention on the part of the person responsible to carry out the illegal action). Resolution No. 68 edited by ANM in 2021 significantly deepened the criteria that must be taken into account at the time of environmental recovery. Morphological, geomechanical, chemical, and thermodynamic criteria of the entire area impacted by mining activities must be evaluated and retrieved. Concerning dams, these must be decharacterized whenever possible, and when technically impossible, continuous monitoring must be maintained even after the complete conclusion of the mine closure works. Decree No. 10,965/2022 brings a review of the calculation of fines, which now take into account factors such as antecedents, level of seriousness, and the financial capacity of the violator, keeping the holder of the mining concession as responsible for the area until that the final report of the mine closure plan is approved by both the ANM and the environmental agencies. From this work, the concern of Brazilian mining management bodies with environmental care and protection is evident, revealing the advances achieved over the years in creating a legal framework that allows essential mining activities to be carried out in balance and harmony with the environment.