Federal Legislation on Dams' Safety in the Brazilian Mining Sector

The Federal Law No. 12.334/2010 establishes the National Dams Security Policy – PNSB and creating the National Information System on Dam Safety - SNISB[1], to minimize the risks associated with dam structures and their consequences. In force since the 20thSeptember 2010, this standard defines the instruments of effectiveness of the PNSB[2], the necessary safety procedures at all stages of installation and operation of the dams, and the responsibilities and competencies of the agents and bodies involved. It is not, therefore, a licensing procedure for dams, although it could have done so, making its content more comprehensive and complete[3].

With regard to dams intended for the accumulation of water, the final or temporary disposal of tailings and the accumulation of industrial waste, the National Dam Safety Policy requires verification of one of the following characteristics for its application[4]: i) height of the largest or equal to 15m; ii) total reservoir capacity greater or equal to 3,000,000m; iii) reservoir containing hazardous waste according to applicable technical standards; and iv) category of potential damage associated, medium or high, in economic, social, environmental or loss of human lives.

Regarding the responsibilities of the authorities involved, the PNSB expressly states that it is the obligation of the entrepreneur, legally responsible of the dam’s safety[5]. In order to do so, it shall provide for the elaboration and updating of the Dam Safety Plan - PSB, which is an obligatory implementation instrument that aims to assist in the risk management of the structure[6]. This means that it is the private sector itself that determines, through outsourced companies hired by the mining enterprise, the security measures to be installed.

This technique, called self-monitoring, is commonly used in the implementation of environmental legislation in the countries of Europe[7] and the United States[8], which prioritize the activities that must be carried out by the public sector. Many believe that this practice is essential for the success of an environmental management program, since it allows the obtainment of extensive information about the regulation of the company, the economic weight of the monitoring of the enterprise is shifted and it allows raising the level attention to compliance with legislation. On the other hand, there are those who question this method of passing on the activity to the private sector, in the environmental sphere, raising questions about the possibility of suppressing social interests when the said plan is elaborated by the economic interests of the entrepreneurs[9].

However, in a system of checks and balances, the drafting of the plan by the private sector and its review and effective oversight by the public sector would remove such concern since the public sector could verify social interests. The Federal Law no. 12,334/2010 establishes that it is up to the public sector to supervise such execution. The plan and report of the dam presented by the entrepreneur is only the starting point for the state to perform its supervisory function. What is needed is a "fine filter" to review, monitor and inspect the dams to see if the tasks set forth in the law have been well executed by the private sector.

The inspection provided for in the National Dam Safety Policy is divided into four groups, according to the purpose of the dam[10]. Regarding mining, specifically, it is the responsibility of the National Agency for Mining (ANM, former National Department of Mineral Production – DNPM), a federal authority linked to the Ministry of Mines and Energy (MME), to carry out such control[11]. Resolution no. 95, by ANM and MME, establishes the National Register of Mining Dams, the Integrated Management System for Dams Safety, the minimum content and the level of detail of the PSB and PAE.

1. Risk Category and Associated Potential Damage

One of the instruments to implement the PNSB is a system of classification of dams in high, medium or low, according to the Risk Category – CRI and Associated Potential Damage – DPA[12], in addition to the aforementioned volume classification. The guidelines and general criteria of this classification were established in the Resolution No. 143/2012 of the National Council of Water Resources – CNRH.

The CRI is found through the analysis of three matrices, which are: Technical Characteristics – CT; State of Conservation – EC; and Dams Security Plan[13]. These matrices seek to quantify, in an isolated way, aspects of the dam itself that may influence the possibility of an accident occurring, such as the technical characteristics intrinsic to the project, the current state of conservation of the structures and the bus, and the existence of documentation and maintenance procedures[14]. The DPA, in turn, relates to the possible consequences of the rupture, leakage, infiltration in the soil or malfunction of the dam, independently of the statistical probability of occurrence[15]. Graduation can be made according to the loss of human life, social, economic and environmental impacts[16].

The classification in Risk Category and Associated Potential Damage is an important instrument of accomplishment of the National Policy of Security of Dams. From this categorization, the monitoring authority defines the periodicity, the technical qualification of the responsible team, the minimum content and the level of detail of the safety reviews in the dam structures, periodic and special[17].

Considering this classification of the dams, the ANM defines the scope of the Dam Safety Plan, periodicity of the Periodic Review, Special Dam Safety, and whether or not Emergency Action of Mining Dams – PAEBM.

2. The Emergency Action Plan for Mining Dams in Brazil

The Emergency Action Plan for Mining Dams – PAEBM, also regulated by ANM/MME Resolution no. 95, consists of a technical document, of an eminently corrective nature, to be prepared by the entrepreneur[18]. There is no mention of participation of the community, environmental agencies and other interested in its elaboration. The entrepreneur should identify the emergency situations that could endanger the integrity of the dam, the immediate actions required in these cases, and the agents to be notified in such occurrences[19].

The PAEBM, as a type of the Plan of Emergency Action – PAE[20], shall be prepared for all dams for the accumulation or disposal of mining tailings. PAEBM aims to prevent and, if possible, avoid or minimize damages to life, environment, health, safety, communities and properties downstream of the dam.        

The PAEBM shall be included in Volume V of the Dam Safety Plan, including the minimum information required in the PAE, as required by the Annex II of Resolution ANM/MME no. 95. The entrepreneur, therefore, is bound by the Emergency Action Plan for Mining Dams, to identify who should be notified of the emergency. The entrepreneur shall also provide for the strategy and means of dissemination and alert to potentially affected communities in an emergency situation. In order to promote greater publicity about such information, PAEBM shall be available[21]at the dam site, with the protection agencies and with the civil defence authorities or, when inexistent, with the city council.

Resolution ANM/MME no. 95 establishes the entrepreneur’s obligation of supporting and participating in simulated emergency situations carried out in collaboration with city councils, civil defence agencies, employees, dam’s security staff and the community included in the Self-Rescue Zone –ZAS[22].

Nevertheless, there is no obligation for the entrepreneur to consult the interested parties during the elaboration of the PAE, having only to present the plan and the implementation of its preventive measures to them in community meetings. There is no provision of an active and true participation of the communities in voicing their preferences for actions and for measures to be incorporated in the PAEBM. This format of drafting an action plan is retrograde and ineffective. Individuals and institutions that will participate in the implementation of the plan should be consulted and help with the elaboration of the plan itself and choice of actions, priorities, risks and not be forced in an arbitrary and authoritative way to comply with the plan of the entrepreneur. Stakeholder involvement is crucial for the proper identification of risks, actions, mitigation measures, and for effective implementation of PAE, PSB and ZAS Contingency Plan.

[1] Article 1, caput, Brazilian Federal Law no. 12.334, of 20 de setembro de 2010.

[2]Article 4, Brazilian Federal Law no. 12.334/2010.

[3] MACHADO, op. cit., 2013.

[4] Article 1, single paragraph, Brazilian Federal Law no. 12.334/2010.

[5] Article 17, VII, Brazilian Federal Law no. 12.334/2010.

[6]Federal Law no 12,34/2010 and Resolution CNRH no 144/2012.

[7]REGIONAL ENVIRONMENTAL CENTER FOR CENTRAL AND EASTERN EUROPE. Handbook on the Implementation of EC Environmental Legislation. Section 4 – Waste Management Legislation. In: <https://ec.europa.eu/environment/archives/enlarg/handbook/handbook.pdf>. Acessed on 28th May 2022.

[8]UNITED STATES ENVIRONMENTAL PROTECTION AGENCY – USEPA. NPDES Self-Monitoring System: User Guide. EPA Number: 833B85100. March, 1985; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY – USEPA. Self-Monitoring Procedures: Basic Parameters for Municipal Effluents - Student Reference Manual. EPA Number: 430177003. January, 1977.

[9]MACHADO, op. cit., 2013; OLIVEIRA, Ant?nio Inagê de Assis. Introduction to the Brazilian Environmental Legislation and Environmental Licensing. Rio de Janeiro: Lumen Juris, 2005.

[10] BRAZILIAN INSTITUTE OF ENVIRONMENTAL AND RENEWABLE NATURAL RESOURCES – IBAMA. Security of Dams. In: <https://www.ibama.gov.br/emergencias-ambientais/seguranca-de-barragens/o-que-e-seguranca-de-barragens>. Accessed: 28th May 2022.

[11]Article 5, III, Brazilian Federal Law no. 12.334/2010.

[12] Article 7, Brazilian Federal Law no. 12.334/2010.

[13]Article 4, I, II e III, Resolution CNRH no.143/2012.

[14]Brazilian Federal Law no. 12.334/2010.

[15]Article 2, IV, Resolution CNRH no.143/2012.

[16]Ibid.

[17] In accordance to Resolution ANM/MME no. 95.

[18] Article 2, Resolution ANM/MME no. 95.

[19]Ibid.

[20]Article 8, VII, Brazilian Federal Law? no. 12.334/2010.

[21]Article 12, paragraph 1, Brazilian Federal Law no. 12.334/2010.

[22]Resolution ANM/MME no. 95 defines ZAS as valley region downstream of the dam where it considers that the warnings to alert the population are of the entrepreneur’s responsibility because there would be insufficient time for competent authorities to reach the area in emergency situations. The ZAS corresponds to the distance corresponding to one arrival time of the flood wave equal to thirty minutes or 10 km.