The safety of dams, especially those used to dispose of solid waste generated by mining, is becoming increasingly important in light of recent episodes that indicate the need for reviewing the regulatory framework and improving inspection procedures, duties of the public bodies that have the legal competence to implement changes in this area.
For example, of the 29 dams in the state of Rio de Janeiro, five were considered to have a High Associated Potential Damage ("DPA")—the dams of Juturnaíba, Saracuruna, Rio Imbuí-UT Triunfo, Lago Javary and Gericinó.
In this regard, on January 22, 2019, Resolution No. 165/2018 (the "Resolution") of the State Environmental Institute ("INEA") was published in Rio de Janeiro´s Official Gazette. The purpose of the Resolution is to regulate the safety of dams, within the state´s sphere of competence, the National and State Dam Security Policies, by introducing new procedures of the Dam Safety Plan ("PSB").
According to Article 17 of the Supplementary Law No. 140/2011, INEA has the authority to inspect the dams located in the state rivers whose licenses have been issued by the state environmental body itself.
Moreover, Article 5, item I, of the Federal Law No. 12344/2010, which governs the National Dam Policy, confers INEA the power to inspect the dams for which it has granted rights for the use of hydric resources when the object is water accumulation, with the exception of dams for hydroelectric use.
Article 4 of the Resolution establishes that the environmental body will classify the dams according to the Matrix of Risk Category and Associated Potential Damage contained in Annex I of the normative act.
Article 5 of the Resolution concerns the theme and depth of the PSB, which should be composed of up to five volumes. Annex II of the Resolution determines the minimum content of the volumes as defined below:
- Volume I. General Information and Technical Documentation of the Enterprise
- Volume II. Plans, Procedures, Records and Monitoring
- Volume III. Periodic Review of Dam Safety
- Volume IV. Emergency Action Plan
- Volume V. Executive Summary of the Dam Safety Plan
Pursuant to Article 7 of the Resolution, the PSB must be prepared and submitted to INEA before the first filling. However, in cases where the first filling of the dam has already occurred, the PSB must be prepared within one year of the publication of the legal instrument.
In regard to the periodicity and deadline for the preparation of the Regular Security Inspection Report ("ISR"), Article 17, paragraph 2 of the Resolution says that the ISR must be carried out by the dam operator at least once a year, and INEA may request additional ISRs whenever necessary.
Concerning the Special Security Inspection ("ISE") and the subsequent report, the sole paragraph of Article 20 of the Resolution stipulates that the inspection must be carried out during the construction, decommissioning and incident and accident scenarios.
The INEA administrative act also establishes the periodicity and timeframe for the preparation of the Periodic Safety Review of the Dam ("RPSB" )1, in addition to providing for the preparation of the Emergency Action Plan ("PAE") for all dams included in the National Security Dam Policy (Federal Law No. 12.334/2010).
The PAE provides, among other obligations, the dam operator's duty to (i) promote internal training; (ii) participate in simulations of emergency situations, jointly with city halls, Civil Defense and the potentially affected population in the Auto-safety Zone ("ZAS" )2; (iii) detect, evaluate and classify potential emergency situations according to Response Levels; and (iv) alert the potentially affected population in the ZAS if Response Levels 2 or 3 (orange and red) are reported.
It should be pointed out that, pursuant to Article 43 of the Resolution, projects that contain dams and still do not have the right to use water resources must submit the application for grant of use of hydric resources before INEA within 90 days.
The period stipulated for the opening of the environmental approval process in INEA is also 90 days and applies to the situation in which the dam operator still does not have approval for the structure.
Finally, it must be stressed that noncompliance with the Resolution provisions subjects violators to the penalties set forth in the pertinent legislation, pursuant to State Law No. 3.467/2000, such as the payment of a fine in the amount ranging from 250 reais (BRL 250.00) to 100,000 reais (BRL 100,000.00). 3
1 Article 27. Resolution No. 165/2018 INEA. The maximum periodicity of the RPSB is defined in accordance with the Matrix of Risk Category and Associated Potential Damage contained in ANNEX I, being: I- Classes A and B: every two (2) years; II- Classes C and D: every four (4) years. Sole paragraph. The deadline for the first RPSB starts when the first filling begins.
2 Art. 3, XXVI, Resolution No. 165/2018 INEA – Auto-safety Zone (ZAS): region of the valley downstream of the dam where it is considered that the warning of the population is the entrepreneur's responsibility, because there is not enough time to allow an intervention by the competent authorities in emergency situations, and at least the following distances must be adopted for their delimitation: the distance corresponding to a time of arrival of the flood wave equal to thirty minutes or 10 km.
3 Art. 81 - Failure to provide the state environmental agencies with information required by the pertinent legislation or to provide false, distorted, incomplete information or to modify relevant technical data requested: Fine of two hundred and fifty reais (BRL 250.00) to one hundred thousand reais (BRL 100,000.00).
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This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.