On February 26, the government of Minas Gerais published State Decree No. 48,140/2021, the second of a set of three decrees to regulate State Law No. 23,291/2021, which instituted the State Dam Safety Policy (Pesb). The initiative seeks to strengthen the rigor of dam safety in the territory of Minas Gerais.

The first decree - State Decree No. 48,133/2021 - had the objective of changing the wording of Articles 11 and 24 of State Decree No. 48,078/2020, which regulated the procedures for the analysis and approval of the Emergency Action Plan (PAE).[1] The most significant modification refers to paragraph 2 of article 24. Originally, the Military Office of the Governor/State Civil Defense Coordination (GMG/Cedec) was assigned the role of coordinating public meetings on preventive actions. The new wording established that the meetings should have the participation of a representative of the public authorities, with procedures to be defined in a specific act, apparently without any coordination function. In addition, State Decree No. 49,190/2021 also brought about minor changes to the original text of State Decree No. 48,078/2020, especially with regard to the deadline for the adaptation of the PAE to current state standards. Originally scheduled to take place within one hundred and eighty days from the entry into force of State Decree No. 48,078/2020, the deadline for adaptation of the PAE must now respect the timetable provided for in Article 20, according to the new wording brought in by State Decree No. 49,190/2021, according to criteria that take into account the degree of potential risk of the structures.

The second decree - State Decree No. 48,140/2021 - regulated the provisions of the Pesb and established measures to implement Article 29 of State Law No. 21,972/2016.[2] It applies particularly to entrepreneurs who have dams in Minas Gerais subject to risk classification, inspection, and monitoring by the State System of Environment and Water Resources (Sisema) until possible decommissioning.

The purpose of this second decree is to standardize mechanisms of:

  1. classification of dams by risk category and associated potential environmental damage;
  2. stages of the decommissioning of dams raised by the upstream method;[3]
  3. providing information on the volume of the reservoir, characteristics of the material disposed of, and monitoring of water and soil quality; and
  4. works and emergency interventions to reduce or eliminate serious risk to human lives and the environment, among others.

Regarding the risk classification, State Decree No. 48,140/2021 provides that the dams will be classified according to the information provided by the entrepreneur himself, considering:

  1. category of risk and associated environmental damage potential, taking into account the physical aspects of the structure (which may influence the possibility of accidents);
  2. potential for loss of human lives and economic, social, and environmental impacts resulting from its potential rupture (existence of a community in the flood spot, service and urban infrastructure, water sources, or water reservoirs, etc.); and
  3. storage capacity of the reservoir, according to the standards of the State Environmental Policy Board (Copam).

If the entrepreneur does not present the information necessary for the risk classification of the dam or does not present a technical justification considered valid by the State Environmental Foundation (Feam), the maximum risk score will be assigned. Before that, however, the entrepreneur will receive a notice for him to resolve any irregularities or omissions of information within ten days.

State Decree No. 48,140/2021 also contemplated the need to conduct technical audits for safety assessment in dams classified by Sisema. The technical person responsible for the audits must necessarily be accredited by Feam and may not have an employment relationship or have provided services of a similar nature to entrepreneurs and/or their subsidiaries or affiliates within the three years preceding the audit.

The requirement aims to ensure the independence and impartiality of the process. The decree also establishes that the costs related to the hiring of the auditor by Feam, the performance of audits, and the preparation of reports will be at the sole expense of the entrepreneur.

According to the mandate conveyed by Pesb, all dams in Minas Gerais built by the upstream method should be decommissioend by February 2022,[4] and National Mining Agency (ANM) Resolution No. 13/2019 established specific deadlines and conditions at the national level (September 15, 2022, to September 15, 2027), taking into account the volume of the dam.[5]

The legislation of Minas Gerais, however, provides for specific steps and criteria for decommissioning of upstream dams involving structural safety factors, protocols to reduce the impacts resulting from disruption during the decommissioning works, and plans to mitigate environmental impacts caused by these works.[6]

These provisions are contained in Chapter IV of State Decree No. 48,140/2021. It establishes the steps that must be fulfilled and funded by the entrepreneur for the decommissioning process, according to criteria defined in the reference sheet – approved and made available by Feam – which establishes the minimum requirements of a project for the decommissioning of dams raised by the upstream method in Minas Gerais.

These demands may delay the deadline for decommissioning, especially because it requires a formal response from Feam so that the structure can be considered decommissioned.[7]

The dam will only be considered decommissioned after formal response by the competent body, when it will be deregistered from the Feam database - without, however, exempting the entrepreneur from the civil responsibilities associated with environmental aspects and the maintenance of safety of the areas where the dam was located.

If the upstream dam presents a serious or imminent risk to human lives and the environment in its surroundings, it is incumbent on the entrepreneur to adopt the emergency measures necessary, immediately, regardless of prior environmental licensing or authorization for intervention.

Pursuant to Article 25 of State Decree No. 48,140/2021, however, the measures considered to be emergencies will depend on:

  1. prior and justified communication to the responsible state environmental agency;
  2. the submission of monthly periodic reports indicating the interventions carried out and the measures taken to mitigate the associated risks; and
  3. final report proving the cessation of the emergency situation.

In cases of intervention in which the emergency issue is not found or in the absence of compliance with the requirements set out in article 25 mentioned above, the enterprise will be subject to the application of the appropriate administrative sanctions, and the fact must be reported to the Public Prosecutor's Office for it to take the measures it deems necessary.

Any extraordinary expenses incurred by the government in response to emergencies caused by accidents or disasters should be reimbursed by the entrepreneur within 30 days, counted from the final and unappealable administrative decision handed down in the record of the separate administrative proceedings, which will be opened by Feam.

Last are the inclusions made in State Decree No. 47,383/2018 by State Decree No. 48,140/2021.[8] Article 80-A establishes new criteria for calculating the fines imposed on entrepreneurs, according to the potential for environmental damage of the dam and the economic capacity of the offender. In the inclusion of paragraphs 6 to 8 to article 113, we highlight the mandate to allocate 50% of the amounts collected as administrative fines to the municipalities affected by the dam rupture. 

As stated, State Decrees No. 48,133/2021 and No. 48,140/2021 aim to regulate the Pesb's provisions. It will be incumbent on the entrepreneurs to adapt to the new regulations established for the dams located in Minas Gerais proactively and within the deadlines established.

The expectation is that a third decree related to the socioeconomic aspects of State Law No. 23,795/2021, which instituted the State Policy for Persons Affected by Dams in Minas Gerais (Peab) will be issued. Issues such as the hiring of independent technical advisory services for affected persons (article 3, VIII), definition of other beneficiaries of Peab (article 6, paragraph 1), and duties of the representative committee to monitor the actions provided for in the Peab (article 7).

From a joint analysis of the state standards mentioned herein, published since mid-2019, one perceives an increase in rigor in the requirements of public environmental agencies, in the means of supervision, and in the penalties applied to entrepreneurs who possess dams, especially those built by the upstream method. The motivation seems to be nothing other than an attempt by the state executive branch to respond to the events that occurred in recent years in Minas Gerais involving ore dams.

 

[1] The obligation to prepare and approve the PAE by the competent state agency was established in Article 9 of State Law No. 23,291/2019, which instituted the State Dam Safety Policy.

[2] State Law No. 21,972/2016 deals with the State System of Environment and Water Resources (Sisema) and provides for other measures. For the purposes of this article, Article 29 provides that: "Among the environmental control measures determined for the environmental licensing of an activity or enterprise that may endanger human lives or the environment, characterized as such by the competent environmental agency, the entrepreneur shall be required to develop and implement an Emergency Action Plan, Contingency Plan and Risk Communication Plan."

[3] That in which the raising of massifs rely on the tailings or sediment previously released and deposited.

[4] As set out in Article 13, paragraph 2, State Law No. 23,291/2019.

[5] Article 8, III, of ANM Resolution No. 13/2019.

[6] Forecast brought in the arts. 18 to 21 of State Decree No. 48,140/2021.

[7] According to Art. 22 of State Decree No. 48,140/2021.

[8] Establishes standards for environmental licensing, typifies and classifies violations of environmental and water protection standards, and establishes administrative procedures for the supervision and application of penalties.