A law has been adopted on using waste from the use of subsoil resources
Pepeliaev Group advises that Federal Law No. 343-FZ[1] has been published (“Law No. 343-FZ”) that allows users of subsoil resources to extract minerals and valuable components from waste from the use of subsoil resources and to use such waste in different ways.
The amendments adopted classify as waste from the use of subsoil resources the overburden and host rocks, mud, refinement tailings of minerals and other waste from the geological surveying, exploration, extraction and primary processing of crude minerals.
Law No. 343-FZ is aimed at encouraging the industrial use of waste from the use of subsoil resources, since to date the country has accumulated around 80-100 billion tons of such waste and its quantity increases by 1.5-2 billion tons every year[2].
It is worth pointing out that if the waste from the use of subsoil resources resulting from the subsoil resources being used at a subsoil area that was provided for use are placed on a land plot located outside the specified subsoil area, the extraction of minerals and valuable components from such waste is allowed after the border is changed of the subsoil area provided for use by storage facilities for the waste from the use of subsoil resources being included in the borders of the specified subsoil area.
It should be pointed out that, for works to be carried out to remediate lands relating to restoring the fertile layer of soil, only overburden and host rocks are allowed to be used.
Its should be noted that Law No. 343-FZ requires that overburden and host rocks should be stored separately from other waste from the use of subsoil resources in specially equipped structures and locations.
The storage facilities for overburden and host rocks (in particular, overburden dumps) are no longer facilities for the placement of production and consumption waste, except for cases when overburden or host rocks were still classified as waste.
Moreover, storage facilities for overburden and host rocks are to be excluded from the state register of facilities for the placement of waste until 1 January 2026 if the entire volume of such rocks located in the facility is to be used under the Law on Subsoil Resources.
However, overburden and host rocks are still treated as production waste, and therefore, an NEI charge will be assessed if:
Law No. 343-FZ has provided for several new obligations for the users of subsoil resources, in particular:
If necessary, we recommend commencing developing technical plans and other documentation that allows the relevant waste to be used. We also recommend considering preparing thoroughly and on a timely basis for a state environmental expert review, if this is necessary.
The amendments adopted classify as waste from the use of subsoil resources the overburden and host rocks, mud, refinement tailings of minerals and other waste from the geological surveying, exploration, extraction and primary processing of crude minerals.
Law No. 343-FZ is aimed at encouraging the industrial use of waste from the use of subsoil resources, since to date the country has accumulated around 80-100 billion tons of such waste and its quantity increases by 1.5-2 billion tons every year[2].
The extraction of minerals and valuable components from waste from the use of subsoil resources
It is determined that a user of subsoil resources may use waste from the use of subsoil resources (of all hazard classes) that formed on the subsoil area provided for disposal in order to extract minerals and valuable components.
According to the Explanatory Note to the draft law, such waste from the use of subsoil resources as refinement tailings contain substantial amounts of molybdenum, copper, nickel, cobalt, lead, zinc and other unextracted minerals/valuable components. Such situation owes to both technological reasons and to the lack of demand for the relevant minerals/valuable components.
From 1 January 2023 when waste from the use of subsoil resources is placed from which minerals/valuable components are extracted a zero coefficient will be applied to calculate the charge for a negative environmental impact (“NEI”). The relevant benefit is intended to encourage the users of subsoil resources to extract minerals/valuable components from their own waste. It is worth pointing out that if the waste from the use of subsoil resources resulting from the subsoil resources being used at a subsoil area that was provided for use are placed on a land plot located outside the specified subsoil area, the extraction of minerals and valuable components from such waste is allowed after the border is changed of the subsoil area provided for use by storage facilities for the waste from the use of subsoil resources being included in the borders of the specified subsoil area.
Using waste from the use of subsoil resources of hazard class V
In addition to the extraction of valuable components, the waste from the use of subsoil resources of hazard class V may also be used for:- one's own production and technological needs;
- the decommissioning of mines and other structures relating to the use of subsoil resources[3];
- remediation of the land[4].
It should be pointed out that, for works to be carried out to remediate lands relating to restoring the fertile layer of soil, only overburden and host rocks are allowed to be used.
Using overburden and host rocks
According to the general rule, overburden and host rocks are no longer production and consumption waste regardless of whether they are included in the Federal Waste Classification Catalogue (the “Catalogue”).
At present, overburden and host rocks are usually included in the Catalogue as production and consumption waste of hazard class V. The most important new development of Law No. 343-FZ is that overburden and host rocks are actually removed from the effect of the law “On production and consumption waste”. Therefore, when such waste is placed, no NEI charge will be required (provided that the user of subsoil resources will subsequently use such rocks).
It is provided that, besides the above purposes, users of subsoil resources may use overburden and host rocks resulting from the use of subsoil resources for: - performing mining operations;
- such rocks to be transferred to another user of subsoil resources for them to be used for such other user’s own production and technological needs, for the decommissioning of mines and other structures relating to the use of subsoil resources and for the remediation of land;
- such rocks to be transferred to another user of subsoil resources for them to be used for such user’s own production and technological needs other than using the subsoil resources.
Its should be noted that Law No. 343-FZ requires that overburden and host rocks should be stored separately from other waste from the use of subsoil resources in specially equipped structures and locations.
The storage facilities for overburden and host rocks (in particular, overburden dumps) are no longer facilities for the placement of production and consumption waste, except for cases when overburden or host rocks were still classified as waste.
Moreover, storage facilities for overburden and host rocks are to be excluded from the state register of facilities for the placement of waste until 1 January 2026 if the entire volume of such rocks located in the facility is to be used under the Law on Subsoil Resources.
However, overburden and host rocks are still treated as production waste, and therefore, an NEI charge will be assessed if:
- the period for using them expires as established in technical plans and other project documentation;
- the person whose right to use the subsoil resources was terminated early did not start to use them within one year from the date of the early termination of the rights to use the subsoil resources;
- the person whose right to use the subsoil resources was terminated early did not use the entire accumulated volume of overburden and host rocks within five years from the date of the early termination of the rights to use the subsoil resources.
Law No. 343-FZ has provided for several new obligations for the users of subsoil resources, in particular:
- to ensure the most complete use of the waste from the use of subsoil resources as well as the warehousing and accounting of such waste;
- to provide to the fund of geological information the data on the waste from the use of subsoil resources, including on the overburden and host rocks and on the minerals and valuable components that they contain;
- to ensure the safety of the minerals and valuable components that the waste from the use of subsoil resources contains;
- when the storage facilities for waste from the use of subsoil resources are liquidated or mothballed, to bring such facilities into a condition that ensures the safety of the population and the environment.
What to think about and what to do
The law will come into force on 1 September 2023, except for the rule on the possibility to apply the zero coefficient when the NEI charge is calculated, which will come into force on 1 January 2023.We propose that the users of subsoil resources should familiarise themselves with the amendments to the legislation and consider whether they can use the resulting waste from the use of subsoil resources.If necessary, we recommend commencing developing technical plans and other documentation that allows the relevant waste to be used. We also recommend considering preparing thoroughly and on a timely basis for a state environmental expert review, if this is necessary.
Help from your adviser
Pepeliaev Group’s lawyers are ready to provide comprehensive legal support to companies with respect to the issues relating to the use of subsoil resources, waste treatment and undergoing a state environmental expert review.[1] Federal Law No. 343-FZ “On amending the law of the Russian Federation “On subsoil resources” and individual items of the legislation of the Russian Federation” dated 14 July 2022.
[2] The relevant data is provided in the Explanatory Note to the draft law.
[3] For the decommissioning of mines and other structures relating to the use of subsoil resources and remediation of land it is also allowed to use waste from the production of black metals of hazard class IV, bottom ash waste of hazard class V from burning coal and phosphogypsum of hazard class V.
[4] See the comment above.