Subsoil use rules 2019 - 2020

The Kemerovo Bar Association "Yurproekt" held a seminar for lawyers of mining companies "Subsoil use 2019-2020: topical issues". These questions were designed for lawyers, ecologists, geologists of the coal mining enterprises of Kuzbass.

Photo: Marina Vasilyuk

Alexey Vakulenko, a partner at the Shapovalov Petrov Moscow law firm, and Head of the Land, Real Estate, Construction practice at Yurproekt Agency Yana Alexandrova spoke about the latest trends in changes in subsoil legislation, on legal risks that accompany the work of subsoil users, on the specifics of land use for the needs of mining enterprises and on other legal practices important for subsoil use.

For example, when conducting inspections of subsoil users, Alexey Vakulenko said, the body authorized for this - Rosprirodnadzor - exercises both environmental control and control over the rational use of subsoil, in particular, the fulfillment of license obligations. At the same time, the objects of negative impact on the environment are divided into different categories, fr om the first to the fifth, depending on the degree of danger of the impact. And enterprises for the extraction of minerals, in particular, coal, belong to the first. This category establishes the "federal level" of supervision of inspectors.

He also said that the current legislation provides for a mandatory "comprehensive environmental permit". But so far none of the coal miners in Kuzbass has received it. This is "a single document that combines an emission permit, waste generation standards, which is valid for 7 years with the possibility of multiple extensions." It must be received by 2022 for all companies of the first category of danger, which are listed in the relevant order of the Ministry of Natural Resources, such as SUEK-Kuzbass, Yuzhny Kuzbass, Raspadskaya, Alexey Vakulenko said. Other companies with objects of the first category, in addition to this list, must obtain an integrated environmental permit until 2025. But all environmental permits issued before January 1, 2019 continue to be valid for the entire period for which they were issued.

According to Aleksey Vakulenko, since this year, changes have been made to the federal law “On State Ecological Expertise”, and now design documentation for capital construction projects of the first hazard category should receive state environmental expertise. This applies to projects of mines, factories, cuts, etc. At the same time, it is not necessary to undergo such an examination for project documentation of facilities already put into operation.

Photo: Marina Vasilyuk

Also, Aleksey gave an example when, after an inspection by Rosprirodnadzor, a coal company had to register mining dumps as waste disposal facilities (ORF), but it turned out that the design documentation for the development of the deposit did not pass the state environmental review, and now it will have to be carried out, since it provides placement of ORO IV hazard class. At the same time, it is not necessary to undergo such an examination again for already launched objects.

Aleksey Vakulenko spoke about inspections of mining companies, about violations in the field of environmental protection identified by inspection bodies and about what damage these bodies can then recover in court. At the same time, he noted, the prosecutor can also file a lawsuit, since he acts in the public and state interests. He gave specific examples from judicial practice on the legal features of solving such important problems for coal companies as early termination, suspension and restriction of subsoil use rights, on the specifics of reissuing subsoil licenses from enterprises declared bankrupt.

Photo: Marina Vasilyuk

Yana Alexandrova talked about the difficulties that arise when obtaining land for rent without tenders and in the withdrawal procedure and how to effectively overcome them. The license itself is the basis for the withdrawal of land for the needs of subsoil use. At the same time, this measure is exceptional, and in most cases the subsoil user negotiates with the owners of land plots, and he succeeds. And only when the owners do not agree to transactions and do not go to negotiations, one has to resort to withdrawal. This usually happens in cases wh ere there are a lot of land owners in the license area, for example, owned shareholders of shares of former collective farms, and it is almost impossible to satisfy their financial needs. Judicial practice, however, on such disputes is small, but it develops in favor of subsoil users. It is precisely that the courts consider the existence of a license to be a sufficient basis for the withdrawal of plots.

To apply for withdrawal, the subsoil user will have to collect a certain package of documents. Their list is defined by the Land Code. But there may be additional requirements from the authorized body, Sibnedr, for example, to provide a technical project. And this, Yana Alexandrova noted, is quite justified - after all, you need to know the exact boundaries of the mining allotment so as not to violate the rights of someone, and these boundaries are set by technical project. At the same time, the lawyer reminded that plots do not become the property of subsoil users, they become the property of the state, the Russian Federation or its subject, depending on the status of the license. And the companies will receive these sites already on the rights of the user, the tenant.

Also, Yana Alexandrova spoke about the trends in judicial practice regarding the provision of land plots without bidding outside the boundaries of licenses, about the peculiarities of terminating lease agreements for land plots used by subsoil users, on determining the amount of rent for such land plots.

Photo: Marina Vasilyuk

According to the chairman of the Yurproekt Bar Association Dmitriy Malinin:

The last meeting marked the beginning of a series of seminars that the Yurproekt company plans to hold in 2019-2020. in Kuzbass for property owners and land users. And taking into account the specifics of the region, the topics of the next seminars will be determined based on the interests of subsoil users

Speech by Yana Aleksandrova, Senior Associate at Yurproekt — https://youtu.be/KWYkextuvKs

Speech by Aleksey Vakulenko, Partner at Shapovalov Petrov — https://youtu.be/PzpZLTftaO4

Source — Avant-Partner economic weekly

Persons

Dmitriy Alexandrovich Malinin

Yana Yurievna Alexandrova