The Federal Constitution assigns to the Federal Government the competence for the exploitation of nuclear services and the state monopoly on the research, mining, enrichment and reprocessing, industrialization and trade of nuclear ores. The monopoly is attributed to Indústrias Nucleares do Brasil S.A. (INB), a public company established in 1988 and linked to the Ministry of Mines and Energy. INB operates on behalf of the Federal Government and, together with the National Commission of Nuclear Energy (CNEN), throughout the production chain of the nuclear fuel cycle.
The Provisional Measure 1.133/22, published last August 2022, seeks to make this monopoly more flexible, attributing more dynamism to the industry segment and attracting resources from the private sector, by allowing INB to enter into partnerships with private companies.
Until then, it was exclusively up to the Federal Government the control and exploration of nuclear ores (not only those considered strategic, but especially projects appraised as of high economic value). The private sector was restricted to fulfilling its obligation in communicating to the National Nuclear Safety Authority (ANSN), the National Mining Agency (ANM) and the INB the identification of nuclear ores whenever this happened.
The main change brought by said provisional measure is the possibility of INB joining the titleholder of the exploration permit for the use of mineral resources. Previously, the exploitation of nuclear ores was only possible through the transfer of the mineral rights to INB.
The provisional measure authorizes the negotiation of INB with the private sector to provide services to national, foreign, public and private entities, in partnerships to be compensated, among other forms, through:
- payment in currency;
- percentage of the amount collected in the commercialization of the mining product;
- right to commercialize the associated ore; or
- right to purchase the mining product with previously authorized exportation.
The amendment keeps the titleholder of the mineral right still dependent on INB’s decision, which will opt for obtaining the title of the mining right (encampação)or closing a partnership with the private titleholder. The measure, however, represents a significant advance for the nuclear ore mining sector, as it makes possible to combine private sector investment with INB's operations to execute projects that eventually would not be carried out due to budget constraints.
There was also the inclusion of some new attributions for ANM and ANSN. Regarding ANM, the powers provided by Law 13.575/17 were added, such as obligations related to regulation, standardization, authorization, control and supervision of the activities of research and mining of nuclear ores in the country (with exception of nuclear safety and radiological protection issues, which remain as an assignment of ANSN), in addition to the obligation to supervise the titleholders of mining concessions regarding the occurrence of nuclear elements.
In relation to ANSN, the provisional measure attributes to the agency the competence to regulate, standardize, license, authorize and supervise nuclear safety and radiological protection of nuclear ore mining activity, in addition to tailings deposits and waste storage sites. It is also up to ANSN to supervise the titleholders of mining concessions regarding the radiological protection of ore mining containing nuclear elements.
The Provisional Measure 1.133/22 must be converted into law up to 60 days after the date of its publication, a term extendable for an equal period. However, for this conversion, the provisional measure needs to be duly analyzed by the House of Representatives and the Federal Senate. It is therefore possible that the amendments introduced so far still be further modified or rejected.