Procedures for the Utilization of Tailings and Waste Rock in Mining

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Resolution No. 85 from the National Mining Agency (ANM), dated December 2, 2021, established clear procedures for the economic utilization of tailings and waste rock generated in mining activities. This regulation, effective since January 3, 2022, aims to stimulate the rational use of mineral resources, including previously discarded materials, aligning with principles of sustainability and circular economy.

Fundamental Definitions

For the correct application of the resolution, it is important to distinguish the terms:

1. Waste Rock (Estéril): In natura material discarded directly from the mining operation, before any beneficiation process.
2. Tailings (Rejeito): Material discarded during or after the mineral beneficiation process.

The resolution establishes that both tailings and waste rock are part of the mine where they were generated, even if disposed of outside the original mining title area, provided that this external area has been subject to a mineral easement and the requirements for prior declaration and approval in the Annual Mining Report (RAL) and Economic Utilization Plan (PAE), respectively, have been met.

Important Update: In March 2025, a provisional decision by the Federal Court partially suspended recent ANM regulations that impose additional requirements for the reuse of tailings outside the mining lease area, such as the establishment of mining easements. The injunction was granted in response to a request by the Brazilian Mining Institute (Ibram), which challenges the legality of the measure and its impact on legal certainty in the sector. The matter remains under judicial review and may affect the practical application of the resolution.

General Principle and Utilization Scenarios

The central point of Resolution No. 85 (Art. 3) is that the holder of the original mining right can utilize the tailings and waste rock generated in their mine without needing to obtain a new mineral title, provided the utilization is carried out by the holder themselves and is linked to the originating mine.

The procedure to initiate this utilization varies according to the impact on the planned operation:

1. No Change in Production Process or Scale: If the utilization of tailings/waste rock does not modify the process or production scale originally planned in the PAE or Mining Plan (Plano de Lavra), the holder must simply communicate to ANM the incorporation of these materials into the production process when submitting the Annual Mining Report (RAL). No prior request is necessary. (Art. 3, § 2º).
2. Change in Production Process or Scale: If the utilization implies changes in the process or production scale, the holder must request ANM for the modification of the PAE, Mining Plan, or similar technical document. This request must be made through a specific electronic means, containing the minimum information detailed in Annex I of the resolution (material characterization, location, description of process changes, etc.). (Art. 3, § 3º).
3. Utilization of a New Substance: If the objective is to extract from the tailings/waste rock a mineral substance not authorized in the original title, the holder must request ANM for the amendment (aditamento) of this new substance to their title. The request is also electronic and must contain the minimum information from Annex II of the resolution (identification of the new substance, geological/technological characterization, preliminary economic feasibility study, etc.). It is important to note that, in this case, the interested party can inform the destination production chain to claim the 50% reduction in the CFEM rate, as provided for in Law No. 7,990/1989. (Art. 3, § 4º).

Additional Requirements and Exceptions

• Prior Planning: The exercise of utilization is conditioned on the prediction of disposal structures in the PAE/Mining Plan and regular reporting on these materials in the RAL (Art. 3, § 1º).
• Dam Safety: If the material is in a tailings dam, dam safety regulations (Law No. 12,334/2010 and ANM regulations) must be observed (Art. 3, § 5º).
• Technical Responsibility: Technical documents (Annexes I and II) must be prepared by a legally qualified professional (registered with CREA) with the respective Technical Responsibility Annotation (ART) (Art. 4).
• Unlinked Materials: If the tailings/waste rock are in a free area or encumbered by third parties, without a link to a current mining exploitation title, their utilization will require obtaining a new mining exploitation title, following the normal procedures of the Mining Code (Art. 5).
• Donation: The amendment for a new substance is not necessary if the utilization is exclusively for donating the material to public entities (Art. 6).

ANM Resolution No. 85/2021 provides a clear regulatory path to transform environmental liabilities (tailings and waste rock) into economic assets. By defining specific procedures based on operational impact and the nature of utilization (existing vs. new substance), the norm offers legal certainty to miners and encourages the search for technologies that allow the full reuse of extracted resources. It is crucial that mining title holders understand the different scenarios and strictly comply with the applicable procedures and documentation requirements for each case.

How is your company adapting to economically utilize tailings and waste rock under this new regulation? Share your experiences and challenges.