Following the rupture of the Córrego do Feijão Mine dam in Brumadinho last Friday, 25/01/2019, several measures are being implemented by different federal and state Public Administration agencies, as well as by the Public Prosecution Service.
In view of the great repercussions of the situation, the actions and initiatives so far adopted mainly reinforce the control actions of dams regarding stability and security of the structures, as well as specific measures taken by the entrepreneurs to alert and remove people who can be directly affected by a possible accident.
The announced inspection actions are not restricted to mining dams, but to all dams included in the National Dams Safety Policy in the Risk and Associated Potential Damages categories. The recommendations are to adopt more conservative guidelines and a more conservative interpretation that are intended to require from the entrepreneurs adoption of stricter criteria for control and monitoring of structures. Even the determination to relocate support structures that are located in areas of dam influence will be evaluated by the competent agencies, according to the specific case.
Changes in the rules and more restrictive and severe provisions in the laws and regulations applicable to dams are expected and should include aspects related to the environmental licensing of structures, as well as the regulatory monitoring and control obligations applicable to dams according to their specific purposes (electricity, mining, industry, etc.).
The table below summarizes in a chronological way, the main regulatory acts / actions implemented by the different agencies in connection with the subject so far:
• Ministerial Council for Disaster Response Supervision and Disaster Response Management and Evaluation Committee / Resolutions nº 1 and 2, of 29/01/2019
Created by the Federal Government on 25/01/2019, the Councils main objectives are to supervise and monitor the activities to be carried out for relief, assistance, restoration of affected services, recovery of ecosystems and reconstructions. The Committee will operate for a period of 6 months (subject to extension) and will prepare a final report, no later than 60 days after conclusion of its activities, to the Chief Minister of the Presidency of the Republic.
On 29/01/2019, the Council issued its first regulatory acts. Through resolution no 1/2019, it recommended the National Water Resources Council ("CNRH") to approve a motion requesting the inspection agencies, for example, to:
(I) immediately carry out audits in their procedures and review the regulatory acts guiding safety inspection of dams;
(II) require entrepreneurs to comply with the recommendations contained in periodic safety inspection and review reports;
(III) require entrepreneurs to register and update information on dams in the National Information on Dam Safety System ("SNISB");
(IV) immediately inspect the dams under their jurisdiction, with priority given to those classified as having "associated high potential damage" or "high risk".
Resolution no 1 also requires federal inspection agencies to (a) require their inspectors to immediately update their respective Dam Safety Plans and (b) immediately assess the need to remove support facilities from developments located in the area of influence of the dams.
Through resolution no 2, the Council also created a subcommittee on drafting and updating legislation to prepare a draft update and revision of the National Policy on Dam Safety.
• Minas Gerais State Crisis Office
Established on 26/201/2019, through decree no 23/2019, issued by Governor Romeu Zema, its purpose is mobilizing and coordinating the activities of state public agencies and entities regarding the measures to be adopted in order to minimize the impacts resulting from dam ruptures.
• Public Prosecution Service of the State of Minas Gerais (MPMG)
On 29/01/2019, Judge Renata Bonfim Pacheco, of the 3rd Public Treasury Court and municipality agencies of Belo Horizonte, issued a decision granting the urgency protection requested by the PPSMG in the context of a public civil action filed against the State of Minas Gerais, determining that the State and the State Department for the Environment and Sustainable Development (SEMAD) must refrain from granting or renewing environmental licenses for new tailings containment dams using the upstream piling method, as well as from granting or renewing environmental permits for expansion of existing dams that use or have used the upstream method, under penalty of a fine of R$100,000.00 (one hundred thousand Reais) for failure to comply with the decision.
At the same time, MPMG has sent requests to entrepreneurs to present technical documents related to their respective dams.
• Office of the Attorney-General of the State of Minas Gerais
By means of Resolution AGE nº 05, of 29/01/2019, a Working Group was set up to advise and evaluate legal measures in view of the rupture of the Brumadinho Dam. Among their duties, the group is responsible for evaluating and proposing measures for legislative improvement
• National Council of Water Resources (CNRH) - Motion Nº 72/2019
Accepting a recommendation issued by the Ministerial Council for Disaster Response Supervision in Resolution nº 1, the CNRH issued, on 30.01.2019, Motion nº 72, recommending the Dam Safety Oversight Agencies, for example:
(I) review of the Dam Safety Plan, of the responsibility of the entrepreneurs, within 90 days;
(II) performance of Periodic Review of Dam Safety to verify the general state of safety of the structures;
(III) immediate start of on-site surveys of the dams.
• Office of the Secretary of State for the Environment and Sustainable Development of Minas Gerais (SEMAD)
On 30.01.2019, SEMAD published Resolutions (i) Joint SEMAD / FEAM nº 2.765 and (ii) SEMAD nº 2.762.
Joint Resolution SEMAD / FEAM nº 2.765/2019 determines the de-characterization of all tailings retention dams that use or have used the upstream piling method from existing mining activities in MG.
The Resolution provides for the installation, within ten days of its publication, of a committee of experts, with recognized experience, to define the minimum content of work plans and maximum deadlines for the de-characterization of waste containment dams using or having used the upstream method, from existing mining activities in MG.
By means of Resolution no 2.762, SEMAD determined suspension of the analyses of ongoing environmental regularization processes related to the disposal of tailings in dams, independent of the construction method, until the new regulatory rules are published by the proper agencies.
In this context, it is fundamental that the owners and managers of the dams make sure that laws and regulations, and legal deadlines are observed, as well as the technical conditions, and reassess the possible need to adopt additional precautionary and protective measures. Monitoring of regulatory changes, as well as careful review of ongoing plans and procedures, are critical to avoiding risks, damages and liabilities.