How are resource extraction projects approved and monitored?

The procedures for the approval and supervision of raw material extraction projects in Germany are not regulated in the same way for all mineral resources. They vary depending on the natural resource type and its legal anchoring in the Federal and State Governments.

Mining licences

Mining licenses are the basis for exploring and extracting free-to-mine mineral resources. They are applied for in the form of a permit, license or proprietary mining rights.

We can distinguish between three types of mining licenses:

Permit

The permit is a mining license that grants the right to explore free-to-mine natural resources in a particular licensed mining site. The permit is limited to a maximum of five years and can be extended by three years (see Section 16(4) BBergG). There is a legal entitlement to the granting of a permit, provided there are no grounds for refusal. The permit may be refused if, for example, no work programme is available or the specified period is not taken into account in the planning. The grounds for refusal are listed exhaustively in Section 11 BBergG. If for reasons for which the permit holder is responsible, exploration is not started within one year, the permit must be revoked (Section 18 BBergG).

License

The license is a mining license granting the right to explore and extract free-to-mine mineral resources in a particular licensed mining site. The license is granted for “a period of time appropriate for the completion of the extraction in the individual case”. Fifty years may only be exceeded if this is necessary in view of the investments normally required for the extraction. An extension is possible (see Section 16(5) BBergG). There is a legal entitlement to the granting of a license, provided there are no grounds for refusal.

The license can be refused if, for example, it cannot be proven that the mineral resources can be extracted according to their location and nature (see Section 12 BBergG). A license shall be revoked after three years in cases where extraction is not commenced or is interrupted, unless there are grounds for obstruction pursuant to Section 18(3) sentence 2 BBergG. The grounds for refusal are listed exhaustively in Section 12 BBergG (incl. reference to Section 11 BBergG).

Proprietary mining rights

Proprietary mining rights are a special form of mining license for the extraction of free-to-mine mineral resources. They comprise the rights and obligations associated with the granting of a license, but also allow mortgage lending and the registration of easements. The proprietary mining rights are entered in the land register with the name and address of the applicant and details of the field. The proprietary mining rights are granted for “a period of time appropriate for the completion of the extraction in the individual case”. Fifty years may only be exceeded if this is necessary in view of the investments normally required for the extraction. An extension is possible (see Section 16(5) BBergG). If the regular extraction of natural resources has been interrupted for more than ten years, the proprietary mining rights must be revoked in certain cases (if Section 18(4) sentence 1 BBergG is applicable). In order to apply for proprietary mining rights, the applicant must already hold a license for the specified field. In addition, proprietary mining rights may be denied if, for example, it cannot be demonstrated that an economic extraction of the natural resources is to be expected (see Section 13 BBergG).

For the documentation of the mining license, so-called mining rights registers and mining rights maps are created in accordance with Section 75 et seq. BBergG. The information on permits, licenses and proprietary mining rights as well as information on the relevant fields can be viewed there. In the EfA Bergbau project community, 14 of the 16 federal states jointly develop the BergPass application software, by means of which mining applications can be submitted (BergPass® – Start (lbeg.de)). The application to inspect the mining rights register will be available online in future.

Special case: Mining license according to old law

In addition to the above-mentioned authorisations (permit, license or proprietary mining rights), the authorisation forms also include authorisations derived from old law, which are referred to as old rights. These are mining licenses granted before the current Federal Mining Act of 1982 entered into force. They include, for example, the opencast lignite mining industry in the Rhenish mining area or the salt mining leasehold rights (Salzabbaugerechtigkeiten) and old crude oil contracts in Lower Saxony. They remain valid under current law (see Section 149(1) sentence 1 BBergG) if they have been notified to the mining authorities and confirmed by the mining inspection authorities within a transitional period of three years after the BBergG 1982 came into force. In contrast to authorisations under the new BBergG, authorisations under the old law are neither limited in time nor do mine site or extraction royalties have to be paid. In practice, these old rights related/relate in particular to coal and lignite, salts and hydrocarbons. However, the approval of an operating plan is also required for the extraction of mineral resources under the old law.

Special case: special requirements on the territory of the former GDR

The mining law system of the GDR only knew the nationally owned natural resources and other mineral resources. The nationally owned natural resources essentially comprised the natural resources that were free-to-mine and privately owned according to German federal law; they were owned by the people. Other mineral resources mainly consisted of the landowners’ natural resources and were classified as property. With the Lending Ordinance of 15 August 1990, the basis was created for converting mining licenses for nationally owned mineral resources into free-to-mine natural resources and thus recognising them in the legal system of reunified Germany. The transferred mining licenses are considered proprietary mining rights. Excluded from this are confirmed old rights based on Section 153 BBergG with the status of a license (according to Section 8 BBergG). Just like mining licenses under old law, mining licenses that are considered proprietary mining rights are unlimited in time and exempt from mine site and extraction royalties (see Sections 149 and 151 BBergG). In contrast to the former federal territory, the old rights (see section on mining licenses under old law) in the federal states on the territory of the former GDR extend not only up to 1980, but also to the deposits explored up to 1990, in accordance with the legal requirements adapted as a result of unification. They also not only include the free-to-mine but also the privately-owned natural resources.

Overview of old mining laws, mining laws in the GDR and modern mining laws

You can find an overview of all mining rights at Data on mining authorizations​.

Approval of an operating plan

Exploration, extraction and processing operations that are subject to the BBergG are generally only established, operated and closed on the basis of plans (operating plans) that have been drawn up by the company and approved by the competent authority. The approval of such operating plans is subject to conditions (conditions of approval). They refer, among other things, to operational safety and occupational health and safety, protection of the surface and the avoidance of harmful effects, protection of the deposit and precautionary measures for the proper reutilisation of the areas used for raw material extraction. The BBergG distinguishes between different types of operating plans, such as framework operating plans, main operating plans, final operating plans and special operating plans. For more information see section Managing human intervention in nature and landscape.

Operating plans basically include the following:

• A presentation of the scope of the project
• A presentation of the technical implementation of the project
• The duration of the project
• Evidence that the conditions of approval have been met

The operation of a mine is typically dynamic in nature due to the ongoing adaptation to the deposit, as the specific location of the mining operation changes as the mining of lignite or salt progresses and extends to areas of the deposit that have not yet been mined (this is not the case with borehole mining, such as deep geothermal energy, oil and natural gas). This mode of operation also entails specific risks for employees and third parties. Because of this peculiarity, continuous monitoring of the operation is required, staggered according to time intervals. As a general rule, the main operating plan should not exceed two years and should be approved by the competent authority. The permanent coordination between the company and the competent authority is intended to ensure intensive state control of the mining companies, while at the same time ensuring flexibility in planning.

 

Against the background of the phase-out of lignite-fired power generation (see Effects of the energy transition), an amendment to the BBergG extended the standard duration of main operating plans for lignite opencast mines, see Section 52(1) BBergG.¹ This will extend the timeframe for the rescheduling required due to the coal phase-out and the planning certainty of open-cast lignite mines, the end of which is foreseeable due to the premature phase-out of lignite. The regulation also applies to other mining sectors if sufficient control is possible even with a longer inspection period. In the interest of speeding up and streamlining the approval process for framework operating plans and all associated additional approvals for opencast lignite mines affected by the coal phase-out, the first instance jurisdiction for administrative court actions has also been transferred to the higher administrative courts, Section 48(1) No. 14 VwGO (Rules of the Administrative Courts). Procedural arrangements have also been put in place to speed up these administrative procedures.

In Germany, the conditions under which natural resources are extracted are generally not negotiated directly between the extracting companies and the state authorities. The conditions for the exploration and extraction of mineral resources are laid down in generally applicable laws and are implemented by the relevant authorities.

In addition to the approval procedures, contractual agreements between companies and government agencies are also made in some cases. However, as explained above, these are not the rule but the exception. Where private-law agreements are relevant for extractive companies in Germany, this is listed and explained in Selection of payment flows and quality assurance.

Permit under water law

If a mining project involves the use of a body of water, a permit under water law is required in addition to the approvals under mining law (see § 8 in conjunction with § 9 WHG (Water Resources Act)^2. Such uses of water bodies include, in particular:

1. the removal and discharge of water from surface waters,
2. the impoundment and lowering of surface waters,
3. the removal of solid substances from surface waters, where this has an impact on the water characteristics,
4. the introduction of substances into water bodies,
5. the removal, pumping or conveying to the surface and discharge of groundwater.

Unless there is one of the aforementioned activities, the following are also deemed to be uses

1. the impoundment, lowering and diversion of groundwater by installations designed or suitable for this purpose,
2. measures which are suitable to cause permanent or not insignificant adverse changes in water quality,
3. the fracturing of rocks under hydraulic pressure for the exploration or extraction of natural gas, petroleum or geothermal energy, including associated deep drilling,
4. the underground storage of reservoir water resulting from the measures referred to in point 3 or from other measures for the exploration or extraction of natural gas or petroleum.

Where an operating plan under mining law provides for the use of water bodies, the mining authority shall decide on the granting of the permit. The same applies to the revocation of a permit. The decisions of the mining authority must be taken in agreement with the competent water authority.

Permits under water law must be entered in a so-called water register (section 87 WHG), which is publicly accessible. The procedural regulations for this are governed by state law.

Environmental impact assessment

Similar to other projects with significant environmental impacts, environmental impact assessments are also required for projects under mining law. The Ordinance on the Environmental Impact Assessment of Mining Projects (EIA-P Mining) regulates when an environmental impact assessment (EIA) or a preliminary assessment of the individual case is required. In this connection, it depends, for example, on the size of the project, measured by the extraction volume or the required extraction site, whether an EIA is required for the mining project. An example is contained in the following table. In addition, an EIA is mandatory for all mining projects to the extent that they are included in the list of projects with mandatory EIA according to Section 1 of the Ordinance on the Environmental Impact Assessment of Mining Projects (EIA P Mining), which was adopted on the basis of Section 57c BBergG.

If an EIA is necessary, a planning approval procedure with participation of the public, whose interests are affected by the project must be carried out in accordance with mining law. This procedure involves public participation in that the plans for the extraction of mineral resources and a report on the likely environmental impact of the project are made available to the public in the municipalities concerned for a period of one month in accordance with Section 16 UVPG (Act on EIA). The public display will be announced in advance in accordance with Section 73 VwVfG (Administrative Procedure Act). The competent authority shall set a reasonable deadline for the objections of the public concerned after the end of the public display period. The authorities concerned will be consulted at the same time as the public exhibition. Comments from the authorities and associations as well as objections from citizens are discussed jointly with the company and the approval authority at a discussion meeting³ (Section 73 VwVfG).  A decision on the objections is made by the competent authority (in this case the mining authorities of the federal states) and set out in the planning approval decision. The planning approval under mining law is also a binding decision that is not characterised by planning considerations and discretionary powers. In addition, it not only integrates decisions of other authorities, but in accordance with Section 57a (5) BBergG also applies to subsequent operational plans. Any information to be published on environmental impact assessments of mining projects is available on the environmental portals of the state and federal governments.⁴

In contrast, no planning approval procedure is carried out for operating plan procedures without an EIA. Accordingly, the responsibility of other authorities to decide on authorisations, permits, licenses, etc. remains unaffected in these cases. So to the extent necessary for the concrete implementation of a natural resource project, further authorisations, permits and licenses etc. are to be obtained from the respective competent authorities. These can include building permits, forest conversion permits, authorisations under the Immission Control Act ⁵, permits under explosives law or the granting of exemptions from prohibitions under nature and landscape law.⁶

Public access to environmental information and “Authorisation Notices”

According to environmental information law, every person has free access to environmental information from bodies obliged to provide information. To this end, the federal and state governments have enacted regulations that implement the requirements of international law (“first pillar” of the Aarhus Convention) and the European Union’s Environmental Information Directive 2003/4/EC. A distinction must be made between the Environmental Information Act (UIG), which regulates access to environmental information at federal level, and the statutory provisions of the federal states on access to environmental information, which apply to agencies in the federal states that are obliged to provide information. The Federal Freedom of Information Act (IFG) applies to other official information held by federal authorities.

Environmental information (see Section 2 III UIG and corresponding regulations in the environmental information laws of the federal states) includes both data on the condition of environmental elements such as air, atmosphere, water, soil, landscape and natural habitats (No. 1) and information on factors such as noise, energy, substances or radiation (No. 2) as well as measures or activities that affect the above-mentioned environmental elements or factors or aim to protect the environment (No. 3). According to Section 3 I UIG, “bodies required to provide information”, i.e. all public administration bodies specified in Section 2(1), not just the “environmental authorities” (cf. Section 2 I UIG), must grant access to environmental information.

Anyone wishing to access environmental information must first submit an application (Section 4 UIG) to a body obliged to provide information. The request should specify the information to which access is sought. Fees may apply (Section 12 I UIG).

The right to access information may be restricted in order to protect certain interests that are exhaustively listed in the UIG (Sections 8, 9 UIG). Among other things, these include the protection of personal data, copyrights or trade and business secrets. An appeal may be lodged against the rejection of a request for access to information.⁷

Environmental information on emissions from individual natural resources extraction facilities (and other industries) is also made available to the public on request. This information includes authorisations, permits or licenses granted to the company to impact the environment. Approval decisions that have a significant impact on the environment must be published independently by the competent authorities (see Section 10 II UIG).⁸ Some federal states use extensive “environmental portals” to publish authorisation notices and general environmental information.⁹ At federal level, there is a central Internet portal that provides information on the environmental impact assessments described under 3 b.iii. above. Since 2021, this portal can also be used for the dissemination of general environmental information (see Section 10 III UIG).¹⁰

Example of an authorisation decision

Citizens can obtain specific information on the environmental impacts approved by the authorities from the authorisation notices. The following is an excerpt from the notice “Water law permit (…) for the discharge of saline wastewater from the Neuhof-Ellers and Werra plants into the Werra” for the company K+S Minerals and Agriculture GmbH in Philippsthal.¹¹ The company mines potash-containing salts in the plants and discharges salt water into the Werra river as part of the mining process. The authorisation notice from the Kassel Regional Council states the amount of saline wastewater that is permitted to be discharged. In addition, extensive aspects are addressed, such as the participation of the public and of associations or the impact on protected assets such as “water”, “human health”, “animals, plants and biodiversity” and “landscape”.

 

[Extract]

“[…] I. Reasons for the decision

1. Permission

The applicant is […] granted the water-rights permit to discharge salty waste water from the Werra and Neuhof-Ellers works into the River Werra via the discharge points at the Hattorf site at plot 46/2 (Werra) […] and the discharge point at the Wintershall site at plot 379/3 (Werra) […] and via ditch 3 (waste water from the compensation and safeguarding measures), time limited until 31 December 2021 with the following content:

1. Discharge quantity

A total of max. 6.7 million m³/a of salty waste water is allowed to be discharged into the Werra from the production and operations of salt dumps and salty waters from the Neuhof-Ellers and Werra mines, the Hattorf/Wintershall mine, the diffuse inflows/springs of the Neuhof-Ellers works and the salty surface water of the factory site of the Neuhof-Ellers works.

There are no limits on the quantity for discharging salty groundwater from the safeguarding and compensation measures, which are or become necessary because of solid residues in the piles, but instead the following load limits apply.

2. Loads

The annual load of discharged mineralisation (K, Mg, Na, Cl, SO₄) from groundwater from the safeguarding and compensation measures, which are or become necessary because of the piles of solid residues, is not allowed to exceed an annual limit of 28,500 tonnes.”¹²

¹ Federal Mining Act (BBergG): https://www.gesetze-im-internet.de/bbergg/

² Water Resources Act (WHG): https://www.gesetze-im-internet.de/whg_2009/

³ See example Lower Saxony: BergPass® – Information to the public

⁴ Federal EIA Portal (https://www.uvp-portal.de/), EIA Network – Environmental impact assessments of the German states (https://www.uvp-verbund.de/), for example EIA Portal Lower Saxony (https://uvp.niedersachsen.de).

⁵ Regarding the Federal Immission Control Act (BImSchG), also refer to the glossary.

⁶ A separate authorisation under water law may be included in the administrative act of the mining authority.

⁷ The above information and text passages originate from the Federal Ministry for the Environment. This and further information is available at:

https://www.bmuv.de/themen/umweltinformation/umweltinformationsgesetz (accessed 9 October 2024).

⁸ Details specifying where such information is accessible or can be found is sufficient.

⁹ Example: Environmental Portal North-Rhine Westphalia (https://www.umweltportal.nrw.de/); Lower Saxony (https://numis.niedersachsen.de/portal); Thuringia (https://www.umweltportal.thueringen.de/) An overview of the existing environmental portals is available at https://rohstofftransparenz.de/ download/#umweltinformationen.

¹⁰ The central Internet portal is available at: https://www.uvp-portal.de/.

¹¹ The complete notice can be downloaded and viewed at Data on environmental information​.

¹² Quotation on page 12 of the authorisation notice.