The Brazilian Brumadinho Mining Disaster

Author(s): Leonardo Munhoz

Source: Natural Resources & Environment , FALL 2019, Vol. 34, No. 2, Mining the Land,
Mining the Sea (FALL 2019), pp. 37-41
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/10.2307/27010574

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The Brazilian Brumadinho Mining Disaster:
Environmental Regulation on Debate
Leonardo Munhoz

M
ining shares a close relationship with Brazil’s econ- environmental laws will be effective in holding mining compa-
omy. This relationship has existed at least since nies like Vale responsible for protecting their workers and the
colonial times, when in the seventeenth cen- environment.
tury the Portuguese discovered gold in the state As to Brumadinho, the authorities are still assessing the
of Minas Gerais and quickly set up infrastructure to recover best approach to redress damages and investigating possible
the resource. Indeed, mining even justifies the state’s name to punishments. And while some have worried that little has
this day––Minas Gerais translated to English means “general been done to punish the violators, actions were taken after the
mines.” Today, mining in Brazil involves much more than gold, Mariana disaster. Specifically, in June 2018, the federal public
silver, and precious stones. It is equivalent to 5 percent of Bra- prosecutor and the corporations associated with the Mariana
zil’s gross domestic product, creating 180,000 direct jobs and Disaster (i.e., Fundão Dam) entered into a settlement agree-
resulting in the extraction of a vast range of minerals. Vale, ment that created the Renova Foundation. This foundation
Sobre a Vale (2017), www.vale.com/brasil/pt/aboutvale/news/ was established with the purpose of managing and assisting in
paginas/qual-a-importancia-da-mineracao-para-a-economia- numerous restoration actions, and collectively this settlement
do-pais.aspx. identified 42 projects to be funded. See Fundação Renova,
Despite heavy reliance on and a long history with the www.fundacaorenova.org.
mining industry, mining remains a very dangerous activity However, neither Brumadinho nor Mariana is likely to
and involves significant environmental impacts. These risks be the last major collapse as the Barão de Cocais Dam, also
came to a head on January 25, 2019, when a mining dam located in Minas Gerais and owned by Vale, presents severe
owned by the Vale company and located in Minas Gerais stability problems with the risk of collapsing at any time.
collapsed, releasing a mining tailings mudflow of approxi- Smaller mining disasters are also relatively common.
mately 12 million cubic meters. This massive human-caused Even if Brazilian mining companies are not going unpun-
mudflow immediately destroyed Vale’s local facilities ished for these major catastrophes, it is alarming that both
and nearby communities in Brumadinho. Semad/MG, massive mining disasters occurred within such a short period
Clarification Note 1—Disaster Damage B1, Jan. 25, 2019, of time in Brazil. It is little wonder then that people are
www.meioambiente.mg.gov.br/noticias/1/3734-nota-de- concerned about whether Brazil’s environmental mining reg-
esclarecimento-brumadinho-. ulations are fundamentally flawed or, alternatively, whether
This disaster, known as the “Brumadinho Disaster,” caused compliance and enforcement are ineffective such that the
unprecedented environmental damage to the entire region by question is not “if” but “when” the next disaster will occur.
contaminating soil, impairing important water resources, and This article sets out to reflect on whether Brazil has a prob-
destroying millions of hectares of forests. Even more tragically, lematic regulatory framework or otherwise lacks capacity to
the disaster killed 203 people and left another103 missing, enforce the law by giving an overview of the regulations most
making it the worst mining disaster in Brazil’s history. relevant to the Brumadinho case and identifying possible prob-
While the Brumadinho Disaster caught global headlines lems with that framework. With this assessment, suggestions
and created a sense of concern around the world, the disaster will be made for mitigating the problem and insights provided
was not the first of its kind in Brazil. For example, on Novem- regarding what to expect as a result of these unfortunate events.
ber 5, 2015, the Fundão dam, also owned by Vale and located
in the state of Minas Gerais, collapsed in what is known as
the Mariana Disaster. That event released a mining tailings Environmental Permitting in Brazil
mudflow of 43 million cubic meters, destroying the city of Environmental law in Brazil began with the National
Bento Rodrigues, killing 19 people and causing similar severe Environmental Policy Act (Política Nacional do Meio Ambi-
environmental damages. Ibama, Breaking of the Fundão Dam: ente—PNMA Lei No. 6.938/1981) in 1981, which set forth
Documents Related to the Samarco Disaster in Mariana/MG, a system known as the Sistema Nacional do Meio Ambiente
Oct. 23, 2018, www.ibama.gov.br/cites-e-comercio-exterior/ (SISNAMA) to address environmental protection. One of
cites?id=117. the several purposes of the law was the creation of a federal
Thus, in the aftermath of the Brumadinho Disaster, Brazil- environmental agency, Instituto Brasileiro do Meio Ambiente
ians were forced to grapple with the question of whether their (IBAMA), and state environmental agencies. Each of these
agencies have their own respective jurisdictions to enforce
Mr. Munhoz is an attorney practicing environmental law in São Paulo, environmental regulations and issue permits. As in many sys-
Brazil. He may be reached at [email protected] or tems, permitting was established as a primary instrument for
[email protected]. environmental protection.
NR&E Fall 2019 37
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 Additionally, Resolution No. 237/1997 of Conselho Nacio- case in the United States, the state was acting under the guid-
nal do Meio Ambiente (CONAMA) details the general ance of various federal standards. If one simply looked at the
environmental permitting instruments that apply in the coun- paperwork of inspections required by law before the disaster,
try. Specifically, environmental permitting in Brazil consists one would not necessarily suspect something was wrong.
of three consecutive phases, each phase corresponding to the According to SEMAD, the dam’s Operational Permit had
issuance of a different permit. These three permits are issued had its last renewal performed in 2011 with no irregularities
according to the stage of development of the activity proposed. and the permit was valid until 2017. Additionally, inspec-
First, the Preliminary Permit, which is granted during the tions indicated that the dam was not receiving any more waste
planning phase, serves as approval for the activity or project. or discharge. Therefore, in 2018 Vale filed a request for a per-
This stage also includes consideration of environmental fea- mit to discontinue its operations at the dam and to reuse those
sibility through an Environmental Impact Assessment, which materials. Since decommissioning can itself lead to pollution,
is similar to the assessment produced in the United States the activity was classified as a low environmental impact and,
under the National Environmental Policy Act. Second, the under state regulation, did not have to go through the full
Installation/Construction Permit authorizes the activity’s con- three-phased permitting programs discussed above. Instead,
struction. Third, the Operation Permit authorizes the activity’s the discontinuance permit was subject only to a single phase
operation. of “simplified permitting.” Thus, at the time of disaster, the
mining dam was permitted to be decommissioned. After the
accident, SEMAD claimed that this procedure did not affect
On the day of the Brumadinho the quality of the permitting process.

Disaster, ANM through a press

National Dam Safety Policy Act (Política
release stated that according Nacional de Segurança de Barragens)
In addition to the permitting process established by Brazil’s
to the reports presented by National Environmental Policy Act, Federal Law No.
12.334/2010 enacted a national policy to ensure the safety of
Vale, no irregularities with the dams. In short, it sets forth a system of dam risk classification,
listing assessment, and reporting instruments, and authorizes
dam stability and safety were the National Mining Agency, Agência Nacional de Mineração
(ANM), as a competent authority to monitor mine dam risks.
detected. Thus, the ANM is responsible for regulating private com-
panies to ensure they are properly following safety measures,
including the implementation of various required safety
reports and inspections. To allow ANM to accomplish its mis-
In Brazil, an agency’s authority to issue permits, enforce sion, there exists a system of shared responsibility between the
regulations, and monitor activities arises from its basic, ple- federal agency and the private sector, in which the private cor-
nary police power, which means that all levels of government porations generate the monitoring data upon which the ANM
can determine whether it is necessary to regulate an activity. evaluates compliance.
Constituição Federal, art. 23, Sc. VII (Braz.). However, the On the day of the Brumadinho Disaster, ANM through
CONAMA Resolution and Federal Law No. 140/2011, which a press release stated that there were no pending documents
were enacted with the goal of better organizing and clarify- regarding the dam monitoring, and it was classified as “low
ing such common authority, established that only one level of risk.” Also, it stated that according to the reports presented by
government can issue particular permits. In most cases, these Vale, no irregularities with the dam stability and safety were
permits are issued by Brazilian state agencies, though for cer- detected. See Agência Nacional de Mineração, www.anm.
tain matters, such as when two or more states are involved, or gov.br/noticias/nota-a-imprensa-1, last modified Jan. 28, 2019.
when the permit relates to nuclear technology, military facili- However, recent investigations performed by SEMAD and a
ties, or national borders, IBAMA has jurisdiction. Congress Inquiry Committee have suggested that Vale might
On the other hand, when it comes to the authority to leg- have ignored data demonstrating potential stability risks of the
islate on issues of environmental protection, Brazil recognizes dam and then possibly passed false information on to ANM
the concept of concurrent authority. Constituição Federal, art. through the monitoring report. Congresso Nactional, CPI
24, Sc. VI (BRAZ.). Therefore, similar to American federal- Relatório, https://legis.senado.leg.br/sdleg-getter/documento?d
ism, the federal government has the authority to establish and m=7974085&ts=1562172217942&disposition=inline.
enact a minimum standard of protection and procedure, and Hence, despite having a system in place to identify and
the states can supplement those standards established in fed- address risks such as failing tailings dams, the system clearly
eral statutes by enacting even stricter standards. The states did not work in the case of Brumadinho. The reliance of
may also freely legislate in the event of federal inaction. Con- regulators on the private sector is one of the reasons many
stituição Federal, art. 24, §§ 2, 3, 4 (BRAZ.). Brazilians have begun to question the system in the aftermath
The authority responsible for permitting Vale’s operations, of the disaster. Questions have also arisen because the dam
including the dam that collapsed in the Brumadinho mining was permitted by SEMAD while the monitoring inspections
disaster, was the state of Minas Gerais through its state envi- must be attested by ANM, which is a federal agency. This gap
ronmental agency (Secretaries do Estado do Meio Ambiente e between state level for permitting and federal level for moni-
Desenvolvimento Sustentável (SEMAD)). But, as is often the toring might also be problematic.
38 NR&E Fall 2019
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Environmental Liability resulted from the Brumadinho Disaster, the state public pros-
Once environmental damages occur, Brazil holds violators lia- ecutor recently filed a civil action against Vale to redress the
ble through three independent and different spheres: civil, environmental damages seeking about $12.5 billion USD for
administrative, and criminal. The strict, joint civil liability emergency measures to mitigate and compensate the environ-
applies to all persons responsible, directly or indirectly, for the ment. ACP No 5000056-68.2019.8.13.0090.
activity that causes the environmental deterioration irrespec-
tive of fault, resulting in the obligation to indemnify or remedy
the damage caused to the environment and to third parties. Since the National Dam
In addition, the obligation to redress damages has a retroac-
tive effect for all potentially responsible parties (Federal Law Safety Policy sets a shared
No 6.938/1981, art. 14§ 1º). In other words, the law applies
somewhat similarly to the United States’ Comprehensive responsibility system of
Environmental Response, Compensation, and Liability Act.
Administrative liability applies to parties that engaged monitoring between the
in building, installing, or operating potentially polluting
establishments, projects, or services, without permit or autho- entrepreneur and the National
rization from the proper environmental bodies, and subjects
the violators to punishments such as fines, permit suspensions, Mining Agency, according to
and embargoes. Criminal liability applies to a company or per-
son that commits infractions characterized as crimes under the strict, joint civil liability,
the Environmental Crimes Law (Federal Law No. 9.605/98),
and subjects the infringing parties to criminal sanctions such the agency can also be
as prohibition from doing business with the government and
detention, among other penalties. held liable.
It must be stressed that unlike civil liability, the applicable
criminal and administrative laws do not apply strict liability;
there must be demonstrated fault, negligence, or reckless-
ness by the infringing parties. Thus, the system is designed Because Vale is responsible for two severe accidents in simi-
relatively similar, though not exactly like, the United States’ lar circumstances (Brumadinho and Mariana), there is a strong
general system of enforcement in statutes such as the Clean case for bringing a claim for more punitive damages and new
Water Act. civil actions in the future. It is important to point out that
since the National Dam Safety Policy sets a shared responsi-
bility system of monitoring between the entrepreneur and the
Possible Outcomes of Brumadinho Disaster National Mining Agency, according to the strict, joint civil
and Redressability liability, the agency can also be held liable.
A range of legal outcomes has started to play out in the wake Additionally, compensation for the deaths involved and
of the Brumadinho Disaster, and more can be expected to play socioeconomic impacts for local communities can be asserted
out in the coming years. in specific actions. To date, there is one ongoing civil action
With respect to administrative liability, on January 29, filed in April 2019 by the state public prosecutor address-
2019, IBAMA issued four fines against Vale with a total ing the socioeconomic damages and requesting collective
of approximately $60 million USD for (1) causing pollu- moral damages up to $12.5 billion USD (i.e., ACP 0001827-
tion to the environment and human health, (2) making 69.2019.8.13.0090). See Ministério Público de Minas Gerais,
urban or rural areas unfit for human habitation, (3) caus- www.mpmg.mp.br/comunicacao/noticias/caso-brumadinho-
ing water pollution and interruption of water supply services, procedimentos-de-investigacao-instaurados-e-acoes-ajuizadas.
and (4) polluting effluents and causing biodiversity loss. htm.
See Ibama, Ibama Fines Vale in R $250 Million for Catastro- Historically many mining disasters have been handled
phe in Brumadinho, Jan. 26, 2019, http://www.ibama.gov.br/ through settlement agreements between violators and the
noticias/730-2019/1879-ibama-multa-vale-em-r-250-milhoes- public prosecutor, as was the case with Vale’s earlier Mariana
por-catastrofe-em-brumadinho-mg. Additionally, SEMAD also disaster. While these agreements have the advantage of allow-
issued five fines against Vale for similar reasons amounting to ing faster avenues to redress violations and help the families
approximately $25 million USD. Recently, in May 2019, a of victims, they also generally fall short of holding companies
new fine of $80,000 USD was issued for possible false infor- fully liable. Thus, these settlements might be viewed as falling
mation on the monitoring report given to ANM. See Semad/ short, in part because they have not had the desired deterrent
MG, Infractions—Disaster Damage B1, Jan. 25, 2019, www. effect.
meioambiente.mg.gov.br/component/content/article/13-
informativo/3750-autos-de-infracao-desastre-barragem-b1.
As to criminal liability, at present it is hard to predict Regulatory Framework on Debate
whether criminal sanctions will be pursued in the Brumadinho Because the Brumadinho Disaster happened in large part due
case. As to strict civil liability, in Brazil the public prosecutor to the inability to detect safety stability problems during dam
has standing to bring public legal claims, with the option of inspections, the National Dam Safety Policy (Federal Law No.
seeking collective moral damages (i.e., the Brazilian version of 12.334/2010) has become a center of attention and debate.
punitive damages). Due to the extent of the destruction that Its application to upstream tailings dams, which was the type
NR&E Fall 2019 39
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of dam that failed in both the Brumadinho and Mariana acci- in Brazil, with the main question being when to punish ver-
dents, has faced scrutiny. An upstream tailings dam involves sus when to incentivize? In other words, which would be the
a type of construction in which the dam body (i.e., wall) is best approach––harsh punishments to act as a deterrent to
built using the deposited tailings. Water is then drained away, bad behavior, or persuasive benefits to obtain beneficial com-
so that the waste sludge hardens and makes a tailings shell pliance? According to some scholars a combination of both is
that does not need to be reinforced by concrete or stone. appropriate. John Braithwaite, To Punish or Persuade (1985).
As such, this approach represents the cheapest and fastest A responsive regulation is a regulatory framework that
option. Problems arise, however, if the sludge gets wet, lead- escalates the intensity of government intervention in order
ing to liquefaction that makes the dam susceptible to cracks to enable enforcement while adapting to the situation. This
and eventually collapse. Given this problem, and in light of framework consists of a pyramid structure combining persua-
recent accidents, in February 2019, ANM issued Resolution sion with command and control instruments, with the base
No. 4/2019 banning the use of new upstream tailings dams and of the pyramid consisting of instruments that encourage self-
requiring that all remaining 84 must be deactivated by 2021. regulation and, where there is no cooperation from private
See Agência Nacional de Mineração, www.anm.gov.br/assuntos/ actors, an escalation to the top of the pyramid through harsher
barragens/pasta-classificacao-de-barragens-de-mineracao/ punishments.
plano-de-seguranca-de-barragens. A preference for persuasion over command and control
occurs because even though the latter approach often appears
to be more effective, it is more expensive than self-regulation
Regarding the Brumadinho instruments. The additional cost stems from the need for more
personnel and administrative infrastructure. Also, for a system
Disaster and the National strongly based on command and control to be productive, the
regulator must have the capacity to escalate the punishments,
Dam Safety Policy Act, creating a deterrence effect by making it cost more to break the
law than respect it. This effect can be problematic and difficult
ANM’s prohibition on the to achieve where there are institutions and agencies with fewer
resources and little history of full or aggressive enforcement.
use of new upstream tailings Meanwhile, a system based only on self-regulation instru-
ments rests on the belief of nurturing the virtuous citizen, but
dams due to their high risks this approach does not always represent reality. It can be dif-
ficult to obtain desired outcomes using such a self-regulatory
is a positive step. But the system even when the rewards for compliance (e.g., tax bene-
fits) appear significant on the surface.
initiatives to amend the A responsive regulation takes from both and can create a
more balanced and efficient system––“it comes up with a way
existing law that only impose of reconciling the clear empirical evidence that sometimes
punishment works and sometimes it backfires, and likewise
higher punishments will not with persuasion.” John Braithwaite, Responsive Regulation and
Developing Economies, 34 World Development 884, 887 (Else-
necessarily bring results. vier 2006) (doi: 10.1016/j.worlddev.2005.04.021); see also
Ian Ayres & John Braithwaite, Responsive Regulation (1992).
It must be noted, however, that responsive regulations can
be more challenging for economies in Brazil’s current posi-
Despite being phased out in Brazil, other companies in tion to implement effectively; as scholars have pointed out,
other countries still use this method. However, due to the risks such economies often have more difficulty implementing this
involved the dams need constant monitoring, which in the type of system because they have less regulatory capacity and
Brumadinho case clearly was not effective. This failure high- resources, and are thus often more susceptible to corruption.
lights problems with the National Dam Safety Policy Act, Braithwaite, Responsive Regulation and Developing Economies,
which relies on private companies to perform all inspections supra at 896.
and generate all monitoring data. While it is not ideal to have One proposed solution to this problem that may work in
companies self-regulate, in most cases Brazilian agencies do Brazil is a networked governance strategy aimed at minimizing
not have the resources to perform official in loco inspections these deficits. This strategy relies on weak actors or regula-
and thus conduct independent inspections to check the data. tors in a system becoming stronger by joining forces. In other
Given recent events, it appears that there are some flaws and words, the system must enable an environment of pluralism in
irregularities occurring with this reporting procedure. which several other players can assist public authorities in an
Ever since the Mariana accident, Brazilians technicians, affirmative way, not simply by reducing corruption, but also by
scholars, and legislators have been discussing whether this addressing the costs associated with infrastructure and moni-
policy should be improved or amended (e.g., Bills 18, 20, toring. Such an approach would make the most of the limited
109, 110, 184, 188, and 336/2019). For example, some have resources available in Brazil. Third parties such as nongovern-
asked whether there should be additional defined punish- mental organizations (NGOs) can have a fundamental role
ment for corporations and prohibitions against new upstream in this strategy. Another front is to encourage whistleblowing
tailings dams, a step already taken by ANM. The issue of among private actors to help identify problems in sectors that
how to craft an effective regulation has long been discussed have capacity deficits. Id. at 890–893.
40 NR&E Fall 2019
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 Regarding the Brumadinho Disaster and the National dams is a positive step; however, it seems more of an aggressive
Dam Safety Policy Act, ANM’s prohibition on the use of new response to try to cover and mitigate a deeper problem in Bra-
upstream tailings dams due to their high risks is a positive zil such as the lack of resources and capacity to enforce the law.
step. But the initiatives to amend the existing law that only This policy has generic wording and relies upon a shared moni-
impose higher punishments will not necessarily bring results. toring procedure between the entrepreneur and the competent
Strengthening command and control instruments without authority, thus ANM is only informed about the monitoring
increasing the regulators’ capacity to actually enforce them is data assessed by the entrepreneur, and not by the agency’s own
ineffective. Because Brazil has limited capacity and resources inspections.
for monitoring and enforcement, as well as a high rate of liti-
gation in courts and countless types of appeals, this approach
alone likely will not prevent future accidents simply because Reforming the existing policy
enforcement is not robust in the first instance.
Brazil is a developing economy, and a networked gover- toward a more responsive
nance approach could be helpful. In particular, regulators
could benefit from the assistance of third parties for inspec- regulation may be appropriate
tions and monitoring. In this sense, state agencies such as
SEMAD in Minas Gerais and NGOs could help enforce the by mixing self-regulation with
policy by assisting inspections and verifying the data. In the
case of NGOs, this could include the use of name shaming command and control to make
for corporate activities that indicate procedural irregularities,
and in the case of state agencies, this could include reduc- it more efficient.
ing the information gap between state-level permitting and
federal-level monitoring. This networked governance could
be positive during the period of deactivation of the other
upstream tailings dams until 2021 and perhaps even prevent In this sense, reforming the existing policy toward a more
disasters by overcoming ANM’s lack of resources, personnel, responsive regulation may be appropriate by mixing self-reg-
and capacity to monitor. This approach could be applied simi- ulation with command and control to make it more efficient.
larly to other environmental regulatory challenges faced by Such an approach could use a networked governance model
Brazil. that utilizes third parties such as NGOs and state agencies.
Ultimately, Brazil has a wide range of environmental legis- Ultimately, this type of system would enable a smarter reg-
lation, including for permitting, which is not only established ulatory framework and also minimize capacity deficits and
in the law but also at the constitutional level. Unfortunately, corruption.
as the Brumadinho Disaster illustrates, these systems are not Finally, concerning redressability of the damages already
always effective at protecting the environment or prevent- caused in Brumadinho, the possibility of another settlement
ing disasters. Indeed, because Brumadinho is the second big agreement as happened in Mariana, must be carefully consid-
mining accident in the country in recent years, it is likely ered. The criminal, administrative, and strict civil spheres of
that monitoring standards have been lacking or not properly environmental liability must be properly and fully enforced,
executed. This directly leads to an inquiry into whether the and the regulated community must in fact be subject to an
National Safety Dam Policy can in fact ensure safety, espe- escalation of punishments. All environmental damages must
cially as it relates to the method of dam construction. be fully, not partially, redressed, to discourage possible future
The ANM decision to deactivate all upstream tailings negligent or reckless behavior by mining companies.

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