The Public Prosecutor of Minas Gerais ("MP/MG") filed, on April 11, 2016, Public Civil Action No. 5162864-29.2016.8.13.0024 ("ACP") against the State of Minas Gerais in order to impose on the State, among other prayers for relief, the obligation not to grant or renew licenses or permits involving building or expansion of mining tailings dams that use the upstream construction method.
In short, the MP/MG requests:
(a) an annulment of Article 8 of State Decree No. 46,933/2016 (which allows the use of the upstream raising method in the construction of dams), on the grounds that it allegedly violates the provisions of Article 2, head paragraph, and paragraph 2 of Federal Law No. 12,608/2012 (National Policy on Protection and Civil Defense), Article 6, items I and III, and 7, items I, II and IV of Law No. 12,305/2010 (National Solid Waste Policy);
(b) the granting of an emergency injunction to immediately suspend the issuance or renewal of any environmental permits (for example, Preliminary License - LP, Installation License - LI, and Operation License - LO) by the State of Minas Gerais that involve licensing of any tailings dams (under construction or in expansion) that are raised using the upstream method;
(c) the State of Minas Gerais be ordered to require, in all environmental licensing processes involving disposal of mining waste, an assessment, in the environmental impact studies, of the possibility of using alternative technologies instead of construction of a dam, thereby prioritizing drainage technologies and the superposition of drains and other similar technologies that reduce, reuse, or recycle the waste.
The prayers for relief submitted by the MP/MG were based (i) on studies prepared by the Technical Support Center of the Public Prosecutor's Office (CEAT); (ii) on Motion 001/2016 prepared by Assistant Secretary of State for the Environment, who recommended the suspension of the concession of all LPs and LIs for tailings dams, in addition to those already granted, until legislation and studies on the subject are able to ensure their safety for the public and the environment, as well as until the State System of Environmental and Water Resources (SISEMA) provides the framework and conditions necessary for the correct technical assessment of these structures, so as not to expose the public and the environment to unnecessary and unwarranted risks; (iii) on the repealed text of NBR13028/1993 of the ABNT, which did not recommend the raising of upstream dams, and (iv) on information regarding the breach of the Fundão (Mariana), Fernandinho (Itabirito), Macacos (Nova Lima), and B1 at Herculano Mineração (Itabirito) dams, all raised by the upstream method.
According to the MP/MG, the construction of dams using the upstream raising technique is the most economical from the companies’ point of view, but it would also mean more risk of disruption and therefore, more risks of environmental damage and harm to the community.
Thirty-seven dams were listed in the record of the ACP, however, it is important to note that this list is only presented by way of example, since the intention of the MP/MG is clearly to suspend the issuance of any environmental licenses to any mining projects involving the construction of tailings dams using the upstream raising method.
The matter is also being discussed in the Legislative Assembly of the State of Minas Gerais, where Bill of Law No. 3,676/2016 is under analysis, which contains provisions relating to environmental licensing and inspection of dams in the state. Among the proposed amendments, we highlight the ban on the installation of dams using the upstream raising method. This draft law was presented on July 5, 2016, and thus far was only approved by the Commission on Constitution and Justice.
