Oil pollution incidents require a coordinated set of procedures and actions to mitigate their possible impacts, whether on a corporate level or to the ecosystem. For these reasons, such crisis situations are often subject to constant updating of its regulations, in order to impose obligations to minimize their consequences, generate less losses and enable the identification of opportunities for improvement, both for entrepreneurs and the regulatory entities.

Federal Decree 10.950/22, which provides for the National Contingency Plan for Incidents of Oil Pollution in Waters under National Jurisdiction (PNC), was issued to regulate Federal Law 9.966/00, which establishes rules for the prevention, control and supervision of pollution caused by release of oil and other harmful or dangerous substances in waters under national jurisdiction. The recent oil spill incident off the coast of Peru, whose oil spills reached part of the coast of state of Ceará, had an impact on the decision.

Edited as an update of the previous PNC - established by revoked Federal Decree 8.127/13- the new normative instrument establishes responsibilities, sets out organizational structure and defines guidelines, procedures and actions, with the purpose of:

  • ensuring the joint and coordinated action of the public and private sectors in measures to respond to oil pollution incidents in waters under national jurisdiction;
  • mitigating possible environmental damage; and
  • avoiding, as far as possible, damage to public health.

In general, PNC will come into force in cases of major oil pollution incidents, whenever considered of national significance by the Monitoring and Evaluation Group (Grupo de Acompanhamento e Avaliação - "GAA")[1] and in which individualized actions taken by those directly or indirectly responsible for river or maritime/port structures, as provided for in their respective Individual Emergency Plans, do not prove sufficient to reverse the problem.

In such circumstances, it will be up to the polluter:

  • to compensate the public authorities in relation to the goods and services, human resources and materials applied in the exercise of any impact mitigation operation (art. 9, item VI, point (a) of Federal Decree 10.950/22);
  • provide immediate communication of such oil pollution incident to the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA), the state environmental agency responsible for the jurisdiction in which the incident took place and the National Petroleum Agency (ANP) – according to Annex II of Federal Decree 4.136/02; and
  • provide situation reports to all authorities indicated in Article 13,[2] in the form and periodicity established by the GAA or operational coordinator, containing detailed information about the incident, such as the description of its current situation, whether or not the occurrence has already been controlled, discharge volume, volume that can still be discharged, product characteristics, mapping of affected areas, measures adopted and planned, date and time of observation, human resources and materials mobilized, additional resources needed, current location and possible predicted trajectories of the oil slick (art. 15).

Regarding its organizational structure, PNC’s new regulation aims to overcome some weaknesses that found in Federal Decree 8.127/13, which, in addition to the GAA and the National Authority (Autoridade Nacional), referred to an Executive Committee (Comitê Executivo) and a Support Committee (Comitê de Suporte), both extinguished after Federal Decree 9,759/19. The two support committees were not reestablished by the new decree. However, GAA and National Authority – whose functions will be executed by the Minister of the Environment (Ministério do Meio Ambiente) – were joined by the Integrated Action Network (Rede de Atuação Integrada), which will be composed by representatives of the vast majority of ministries, in addition to the Office of Institutional Security of the Presidency of the Republic (Gabinete de Segurança Institucional da Presidência da República) and the Civil Office (Casa Civil).

Although dealing with issues related to responsibility of action and prevention, reimbursement, costs and plans, Federal Decree 10.950/22 does not regulate any  compensation system for environmental damages resulting from oil pollution, as provided for in international conventions.[3]

In practice, we are still waiting to acknowledge PNC’s real effectiveness, since the absence of compensation funds that enable an organized, fast and efficient action in coping with crises can lead to an exclusive dependence on individual emergency plans and area plans prepared by private entities.

 

[1] GAA will be composed of representatives of Brazilian Navy, Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and National Agency for Petroleum, Natural Gas and Biofuels (ANP).

[2] They are: Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA), state environmental agency of the jurisdiction of the incident, Captaincy of Ports or Fluvial Captaincy of the jurisdiction of the incident and National Agency of Oil, Natural Gas and Biofuels (ANP).

[3] It is worth remembering that, although it is a signatory to the International Convention on Civil Liability for Damage caused by Oil Pollution of 1969 (CLC 69), Brazil did not adhere to the updated protocol of the Convention on Civil Liability for Damage caused by Oil Pollution of 1992, which provides for an environmental damage compensation fund (IOPC Fund 92).