Reform of the Approval Regime Under Mining Law?

The debate on the reform of mining law is gaining momentum. What should remain as it is and what should be changed? This question is considered in greater detail from the perspective of the approval procedure under mining law in this article. See issue 3/2022 of Mining Report Glückauf for more information about raw material requirements planning.

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1  Maintaining licences

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In accordance with the Federal Mining Act (BBergG), operating plan approval is preceded by the granting of licences that, owing to the preclusion of ownership of freely mineable resources (§ 3 para 2 sentence 2 BBergG), permit the exploration, extraction and the appropriation of mineral resources (1). This is the reasoning behind the advocacy of the INSTRO reform proposal for the retention of the legal institution of the mining licence (2). The draft does not want a mining licence to be granted in advance, however, but in conjunction with the initial decision for operating plan approval, considering that no convincing reasons for maintaining the system of the preliminary decision were given in the conducted interviews (3).

The review of a company’s capability to realise successfully a mining project is conducted at the licensing level. Practically speaking, a preliminary check is carried out, at which stage the project-related requirements do not yet play a role, precluding the occurrence of any temporal delays resulting from a complex material review of the circumstances. Moreover, a material review of this nature can be avoided during the preliminary stage if the licence is previously denied to a company owing to its lack of reliability and capability (§ 11 nos. 6 and 7 BBergG), conserving official resources that would otherwise have to be used for a more detailed environmental assessment if the operating plan approval were reviewed at the same time.

Nevertheless, environmental concerns may prevent the grant of a mining licence if they preclude approval of an operating plan a priori and from every conceivable point of view. In this case, the realisation of the mining licence is impossible from the outset, and the granting of any such licence is pointless. (4)

The generally limited review is also appropriate because the permissibility of the specific project is not decided at the licensing level; its aim is rather verification of the suitability of the applicant companies and their preferability over the competition as well as the seriousness of the proposed raw materials project and its integration into a practical and systematic exploration and extraction while protecting resources (§ 11 nos. 8 and 9 BBergG). The review is above all related to the company and raw materials and does not consider environmental factors. The comprehensive reconciliation with environmental concerns is found in the operating plan procedure. Nevertheless, sustainability aspects can be given consideration at this level, namely, for the conservation of mineral resources in the public interest (cf. § 11 no. 10 BBergG) (5) such as ,i. e. long-term requirements for essential climate protection.

The potential realisation of a mining project from a raw materials and company perspective, i. e. insofar as there are no obstacles to its performance, can therefore be clarified rapidly. Only then is the detailed examination of conflicting interests, particularly from the environmental sector, carried out. Consequently, the granted licences must be maintained without leading to any disadvantages for the compatibility of a project with environmental concerns. This latter factor must be examined comprehensively during the operating plan approval procedure. To this extent, the granting of a licence does not result in a binding obligation. It leads merely to a differentiation of the reviews and to rapid preliminary review of the feasibility of a raw materials project – without lowering the standards that must be observed.

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2  System of operating plan approvals

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The comprehensive project assessment takes place at the level of the operating plan procedure, which is characterised by a system of varying types of operating plan approvals that complement one another; yet each type features a special function adequately reflecting the specific requirements of mining operations. The INSTRO reform proposal, although it seeks to reform comprehensively operating plan approvals, nevertheless intends to retain general, main and special operating plans and closure plans. (6)

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2.1  Main operating plan

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According to § 52 para 1 sentence 1 BBergG, a main operating plan for the establishment and management of a mine must be prepared for a time frame that does not as a rule exceed two years. It serves as the operational and technical basis for the erection and management of the mining operation and contains a description of the planned work and all operating facilities. (7) However, it no longer has first priority as the legal order would suggest.

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2.2  General operating plan

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Although § 52 para 2 no. 1 BBergG describes the general operating plan as the second type of operating plan, the mining authority may require a plan of this type. If, however, an environmental impact assessment (EIA) pursuant to § 57c BBergG is required for a project, § 52 para 2a requires the preparation of an EIA general operating plan and a planning approval procedure must be carried out for its approval in accordance with §§ 57a and 57b BBergG. In its Garzweiler judgement, the Federal Constitutional Court (BVerfG) requires as well a decision on the permissibility of the project as such at the level of the general operating plan, which is why a comprehensive assessment must be carried out at this level and comprehensive legal protection must be assured. (8)

The general operating plan defines the framework boundaries that must be observed by specific projects (9). It does not yet describe the project in all details like a main operating plan, but is not limited to merely a supplementary function (10).

There are also general operating plans that do not require an EIA. What circumstances are considered by the mining authority and for what project within the sense of § 52 para 2 no. 1 BBergG it requests the entrepreneur to prepare a general operating plan serve as the basis for the authority’s decision as to what management function the general operating plan should have with regard to the requirements to be met in accordance with § 55 para 1 BBergG. (11) The plan provides to the authority the opportunity to review the long-term development of the operation. The specific conduct of the project, however, requires the approval of a main operating plan. To this extent, there is a “fulfilment relationship” between the general operating plan and the main operating plan (12).

There have been disputes as to whether the general operating plan is binding for the conceptual definition of the project (13). This principle was previously rejected by the Federal Administrative Court (BVerwG) (14). However, a positive decision was made with regard to a general plan that roughly outlines the project and clarifies the general conceptualisation, resulting in irreversible preliminary decisions that require comprehensive consideration and contestability (15).

In contrast to the main operating plan and the special operating plan, the general operating plan does not directly authorise the erection and management of a mining project (16). In the meantime, however, it is decisive on the permissibility of the project (17) and has a related preliminary effect owing to the overall decision that is made and the issues clarified in the process. Deviations from the legal general operating plan requirements must be possible if the factual and legal situation changes by enabling the authority to impose charges retroactively and to undertake modifications and supplements.

At the request of the competent authority, a general operating plan containing general information about the intended project, its technical realisation and expected timetable must be prepared for a longer time frame as appropriate to the circumstances of a specific situation. Operating plans of this nature facilitate the monitoring of the development of a mining operation by the mining authority. The general operating plan is also important for the adaptation obligation pursuant to § 110 para 1 sentence 1 BBergG. According to this provision, an extraction company is significant, and only then, if it has submitted at least a general operating plan pursuant to § 52 para 2 no. 1 BBergG.

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2.3  Special operating plan

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Pursuant to § 52 para 2 no. 2 BBergG, the competent authority may require a further operating plan for certain parts of the operation or for certain projects. This operating plan is known as a special operating plan. Special operating plans may include work and facilities that are of independent significance that makes them unsuitable for inclusion in a main operating plan. There may also be special circumstances making this the only approach that will ensure the clarity of the main operating plan. The special operating plan can also be used for the management of projects for which no information could be provided in the main operating plan (18). This case must be distinguished from the special operating plans “Mining impacts on surface property”. Their legal grounds are found in § 48 para 2 BBergG in conjunction with Article 14 Basic Law (GG) and are the basis on which mining may be permitted. They necessarily precede the main operating plan. (19)

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2.4  Closure plan

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Pursuant to § 53 para 1 sentence 1 BBergG, a closure plan for the termination of operations, including a precise description of the technical execution and duration of the planned termination of operations, proof that the requirements set forth in this statute have been met and, in certain cases, information regarding the removal of the operational structures and facilities or their further use, must be prepared. The plan ensures comprehensive follow-up care and reutilisation appropriate to the condition of the site when mining operations cease. The specific aim of the closure plan is to ensure that the former mining operation can no longer pose any hazards. The elementary requirements under environmental law remain in effect, even if they are not stipulated in the closure plan, for as long as the risks specifically associated with mining exist. (20) The plan can in particular assure follow-up care subsequent to the mining operation. It is of particular importance in view of climate change, as clearly demonstrated by the flooding in Erftstadt-Blessem.

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2.5  Joint operating plan

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A joint operating plan may be an option if several companies carry out, erect or operate work and facilities according to uniform criteria. One example is the rehabilitation of as much land area as possible. According to § 52 para 3 BBergG, the involved companies must prepare joint operating plans at the request of the competent authority. Joint operating plans can take the form of main, general or special operating plans.

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2.6  Adequate differentiation and gradation

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The result of these provisions is a differentiated system of operating plans – particularly special operating plans and closure plans – that can be tailored to the specifics of any given situation. It should therefore be retained. The closure plans ensure effective follow-up care that is environmentally sound in the long term. No other approaches can adequately address climate change.

The gradation between general and main operating plans is an essential characteristic. The mining decision itself is made in the more comprehensive general operating plan while the progressive steps of the mining operation are permitted in accordance with the main operating plans. A further concomitant result is a substantial tie-in effect as general operating plans have an important function in the stabilisation of raw material extraction. The planning approval decision, which must be substantiated in accordance with § 57a para 4 BBergG in conjunction with §§ 74 para 1 and 69 para 2 Administrative Procedure Act (VwVfG), approves the general operating plan with respect to all relevant standards, meaning that no further approvals from other authorities are required unless said approvals are specifically ordered or required in stages, as is the case with water law. (21)

This concentration effect does not mean that any necessary main and special operating plans are dispensable. Insofar as the main and special operating plans for which the usual participation procedure pursuant to § 54 para 2 BBergG must be carried out are within the framework and material limits of the general operating plan, however, the authorities are bound by them. In this respect, the planning approval decision provides protection for the entrepreneur. At the same time, the defined environmental requirements remain effective.

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2.7  Expropriations

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The approval of the general operating plan also covers further expropriations, although such actions are also subject to a constitutional review and a balancing of mining and property interests as was previously true of the decision to issue the mining licence (22). This predetermines the permissibility of expropriation (23) – unless there is a phase-out of a certain raw material extraction, as is the case in the lignite sector as part of the coal phase-out by 2038 in North Rhine-Westphalia at the latest and in generell “ideally” by 2030 according to the “traffic light coalition” agreement (24). But even in this situation, expropriation remains possible to the extent that coal is still needed for electricity generation until the coal exit. The Münster Higher Administrative Court (OVG) authorised a provisional transfer of ownership for the Garzweiler 2 opencast mine near the village of Lützerath (25).

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2.8  Environmental impact assessment (EIA)

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At the same time, general operating plans have a fundamental position in environmental protection. For the most part, they are prepared because of ecological concerns. The starting point is the obligation to obtain an EIA. The scope of the general operating plan procedure is thus determined by the EU legal requirements of the EIA Directive. While they have been specified in the Mining EIA Regulation, it is ultimately the content of the EU directives that counts. Underground mining projects and opencast pit mining projects with an extraction area of a maximum of 25 ha, which are also subject to Annex I No. 19 of the EIA Directive, are included in Annex II of the EIA Directive, for which member states can set threshold values (Art. 4 para 2 letter b EIA Directive). It has therefore been possible to define certain surface areas or subsidence – for instance, an area requirement of 10 ha or more (§ 1 no. 1 letter a subletter aa no. 3 EIA Mining Regulation) or a surface subsidence of 3 m or 1 m (§ 1 no. 1 letter a subletters bb, cc EIA Mining Regulation). These provisions must, however, take into account the pertinent selection criteria of Annex III (Art. 4 para 3 EIA Directive). National threshold values will be valid solely if they comply with these criteria.

Moreover, projects with a significant environmental impact may not be exempted from an EIA. Ultimately, the potential significant environmental impacts in the specific case are decisive (26). If such impacts arise specifically within the approval procedure of the closure plan (i.e. if they were not reviewed during the original operating plan approval procedure), an EIA relating specifically to the follow-up care (27) is required. To this extent, no distinction is made according to project. A separation of this nature would be in conflict with European EIA law in particular (28). This has a direct effect on the scope of the EIA review (29) and there is no need for an EIA-related amendment to federal mining law.

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3  Steps in the operating plan approval procedure in other respects

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In accordance with § 52 para 4 BBergG, all of the aforementioned operating plans must contain a description of the scope, technical execution and duration of the intended project. More­over, proof that the requirements for approval of the operating plan have been fulfilled must be provided, i.e. the requirements specified in § 55 para 1 sentence 1 nos. 1 and 3 to 13 BBergG must be fulfilled. Operating plans may be extended, amended or changed in accordance with § 52 para 4 sentence 2 BBergG.

In accordance with § 54 para 1 BBergG, the entrepreneur must submit the operating plan and any extensions, amendments or changes for approval before commencing the planned work. § 4 para 5 BBergG stipulates who is the entrepreneur and therefore obligated to submit the plan. It is the party (natural person, legal entity or business partnership) that carries out or subcontracts any of the activities of the operating plan on its own account. It need not be the holder of the mining licence. Pursuant to § 55 para 1 sentence 1 no. 1 BBergG, however, the licence must have been obtained.

The activity set forth in an operating plan may affect the functions of other authorities or the municipalities in their function as planning authorities. In this instance, § 54 para 2 sentence 1 BBergG requires the involvement of any such authorities or municipality prior to approval of the operating plan by the competent authority. (30) For example, it may be necessary to involve the water or a nature conservation authority. Mandatory environmental statutes cannot be set aside in any case, and the mining authority is obligated to strict compliance with any such statutes.

The participation procedure involves the submission of a copy of the operating plan to the pertinent authorities and municipalities and giving them the opportunity to comment on the operating plan within a deadline set by the competent authority. The obligation to involve the authorities and municipalities does not mean that the competent approval authority is bound by the opinions of these authorities or municipalities. (31) The authority must include the opinions in the operating plan review. It can also approve the project contrary to the expressed opinion if it is of the opinion that the statutory operating plan approval requirements have been met. This conforms to the concept of the operating plan approval system under mining law as it relates to both raw materials and the environment. The mandatory agreement of the municipalities as required by the INSTRO reform proposal (32) is at odds with this structure and should therefore be rejected.

• 54 para 2 covers authorities and municipalities, meaning that § 13 VwVfG remains applicable to other parties (33). There is an obligation to involve third parties in accordance with § 13 para 2 sentence 2 VwVfG if their immediate rights may be established, amended or cancelled, which may also occur pursuant to approval decisions. The main cases of application are administrative acts with a double effect that disadvantage third parties – for instance, in their right to health pursuant to Art. 2 para 2 GG. Furthermore, this does not preclude the possibility that the authority may also hear non-affected third parties, citizens’ initiatives or environmental organisations if it wishes to obtain a comprehensive view of the existence of possible grounds for refusal. § 63 Federal Nature Conservation Act (Bundesnaturschutzgesetz; BNatSchG) mandates the participation of recognised nature conservation associations in the cases specified in the provision, e.g. exemption from habitat protection pursuant to para 2 no. 5. (35) The participation of the affected owners is required pursuant to Art. 14 GG if there is a threat of serious impacts on surface property. (36)

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4  Approval requirements in accordance with §§ 55 and 48 BBergG

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The requirements for approval of an operating plan are set forth in § 55 BBergG. First, the entrepreneur must prove that any licences required for the exploration or extraction of resources as specified in the operating plan have been provided (§ 55 para 1 sentence 1 no. 1 BBergG). (37) This requirement is an expression of the gradated approval system under the BBergG.

In all other respects, the approval requirements comprehensively specify the various concerns for raw materials projects – including environmental concerns. Insofar as they cannot be derived from § 55 para 1 BBergG alone, § 48 para 2 BBergG applies. The provisions assure adequate specification of the approval requirements.

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5  Claim to approval in lieu of planning discretion

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The INSTRO reform proposal aims to grant planning competence in the sense of freedom to mould planning to the mining authority. (38) In contrast, traditional dogmatics view the approval of the general operating plan as a legally binding decision that permits a weighing of factors solely retroactively in the form of interpretation of legal terms that have not been unambiguously defined. (39) The Garzweiler decision, with its requirement for timely weighing of factors with an open result, has not changed this principle. It is still a binding decision without consideration of the plan factors (40) as can be seen from the wording of § 55 para 1 sentence 1 BBergG “shall be granted if …” (41).

Mining law planning approvals have always had little in common with conventional plan approvals (42). According to prevailing opinion, plan approvals are characterised by planning freedom, (43) which goes hand in hand with a comprehensive range for weighing the pertinent factors on the part of the planning authorities (44). As indicated in the official statement of grounds, however, the mining law reform is not intended to change the structure of the general operating plan approval as a control permit or a binding decision with a preventive reservation of permission (45). The consequence is a special status for planning approval under mining law (46).

This claim to approval applies all the more to other types of operating plans. It ensures that a raw materials project will be approved if the statutory requirements are fulfilled. In other words, the authority has no more extensive discretionary power to refuse approval. To this extent, a company has legal certainty that a raw materials project will be approved if the requirements of §§ 55 and 48 para 2 BBergG are fulfilled. As described, environmental standards are comprehensively safeguarded within this system, and a high level of environmental protection in conformity with the requirements of EU law is assured. The issue of a binding decision ensures that solely these objective requirements are of significance. The intent of the INSTRO reform proposal to redefine the approval as a discretionary decision subject to the authority’s discretion of care (47) must be rejected.

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6  Conclusion

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Mining law is very well prepared for the practical requirements of the approval procedure, without environmental concerns taking a back seat. In particular, the binding decision must remain. It must not be replaced by a discretionary decision. The issue of a mining permit must also remain a condition precedent for the decision to approve a mining project.

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