“Why did a flowslide occur?”
“Why did the flowslide occur where it occurred?”
“Why did the flowslide occur when it occurred?”
“Q. But there’s another data point, isn't there, which is the inherent likelihood that when one is dealing with loose, sandy tailings, hydraulically deposited, we’ve seen from Martin and McRoberts and the other articles that they’re inherently likely to be contractive, aren’t they? A. Loose and hydraulically placed, yes, I agree.”
“Q. Well, in order for there to have been a liquefaction failure, there needed to have been contractive and saturated materials, didn’t there? A. Correct. Q. And so it’s inherently likely, isn’t it, that data which tended to suggest the presence of such materials that was generated at the time is likely to be accurate? A. Data suggesting that there was a presence of contractive material at the time is likely to be correct. … Q. In relation to that test for the data points in which we’re most interested in, there’s nothing equivocal about this data. This is very clear CPTu data pointing to the presence of contractive materials? A. That test, yes, that location. … Q. Yes. So it may have excluded some of those data points, but nevertheless the conclusion which any competent engineer would have drawn from the CPTu data available from those data points, just to the top of the setback, is that there was contracted material there? A. Correct.”
“Seepage control is a critically important aspect in the design, construction, and operation of tailings dams as it directly affects: the stability of the downstream slopes, internal erosion due to piping, and pollution of ground and surface waters downstream of the dam. … Adequate filters and drains should be provided to allow seepage flows to safely pass through foundations, abutments, and embankments and be collected and measured. For tailings dams the water quality of seepage flows should also be determined.”
“Internal drainage is of vital importance to the reliability and safety of tailings dams.”
“A tailings mass with a low degree of saturation presents a lower risk of liquefaction of the tailings mass and achieves higher densities, in response to the loads applied by the reservoir filling. … The tailing disposal method presented in this paper includes a “pervious dam” as the starter dike, instead of a seepage barrier structure to retain both the tailings and the water. In addition to the pervious starter dike there is an internal bottom drainage system connected to the starter dike that provides a way to drain a substantial part of the water from the voids of the tailings. The main objectives of this method of disposal are: • To obtain a non-saturated embankment, with improved stability; • To obtain greater tailings density, aiming to increase the reservoir capacity; • To achieve a lower hazard potential in a case of a failure; • To improve the closure conditions with less cost for the environmental rehabilitation; • To achieve safer conditions for the application of the upstream method of construction, with a low risk of liquefaction and failure.” • To obtain a non-saturated embankment, with improved stability; • To obtain greater tailings density, aiming to increase the reservoir capacity; • To achieve a lower hazard potential in a case of a failure; • To improve the closure conditions with less cost for the environmental rehabilitation; • To achieve safer conditions for the application of the upstream method of construction, with a low risk of liquefaction and failure.”
“Q. But do you not accept that there was abundant evidence, as summarised there by Professor Gens, of at least the potential for saturation problems? A. In parts of the Dam, yes. Q. And including in the left abutment, which was eventually the area of collapse? A. Yes, left abutment. Yes.”
“Q. Isn’t another way of putting it that the Dam was encountering problems with saturation which demonstrated that the existing drainage was inadequate? A. Yes, the existing drainage meaning particularly the 826 drainage blanket. … as the Dam raised and got higher, when you got out to the sides beyond the blanket drain there was the concern that there would be leakage not picked up or flow not picked up by that blanket drain, and that’s what this is. Q. Yes, yes. And that’s a problem which afflicts both the right and the left abutments, isn’t it? A. Potentially, yes. Q. And in the left abutment you have the additional problem of the Setback and the proximity of the slimes? A. Correct. Q. And so the seepage incidents were field evidence, weren’t they, of the presence of saturated material in structural parts of the Dam, in particular at the left abutment? A. Yes. Q. So if that material was also shown to be contractive, you had the ingredients for a liquefaction flowslide? A. You had some of the ingredients, yes.”
“Also layers of materials of low permeability can produce perched phreatic surfaces. … [in] the exceptional circumstances of the dam being constructed of material that, when in place, proved to be less permeable than the tailings it was retaining, the phreatic surface in the dam can rise to dangerous levels, causing instability… It must be pointed out that a permeability value is not a property of a particular material. The value varies with the density of the fill, its degree of saturation and particularly with the values of existing effective stresses.”
“The total tailings or overflow from cyclones should be discharged from the upstream face of the dam in such a manner that a low permeability tailings beach having a uniform width is maintained across the face of the dam The tailings pond should be operated in such a manner that a maximum width of beach is maintained between the free water in the pond and the upstream face of the tailings dam. This distance will vary depending on site topography and the particular mining operation; however a minimum width of beach of approximately 100 m should be maintained if possible. […] Seepage flows and piezometric pressures should be minimized by maintaining a wide tailings beach.”
“Q. But it’s fair to say -- I think you would have to agree with this, Professor, as a matter of fairness – that what we can see here is that the precise boundaries of the pond at any given time were uncertain, weren't they? A. Yes, I agree that it was uncertain. I think the Panel had a tough job on their hands to try to reproduce the history of the Dam, but they did also a very good job. They were gathering the whole evidence and producing it for us. Q. And the Panel recognised, didn’t it, that uncertainty that I've just mentioned in its after-the-event analysis, didn’t it? A. Yes. Q. And the actual area of the pond -- let's just talk about that -- the actual area of the pond is the maximum area within which slimes suspended in the pond water could have settled; correct? A. Well, I’m not sure about that because you introduced the effect of the overflow channel. The overflow channel was a stream of water coming from the other direction going towards whatever the kind of structure they were using at the moment, so it was not only the pond coming from the spigotting which was actually producing slimes. There were slimes externally introduced by the overflow channel and that increased uncertainty of the location of the slimes. Q. But it’s also right that, if the actual boundary of the pond is uncertain, then the area within which the slimes could have settled is also uncertain? A. It is.”
“Q. Yes, and even if the pond boundary had been known with certainty, without further testing it’s not possible to know the extent to which slimes did in fact settle; correct? A. Well, I think the Panel did a good job trying to get that information from all the data they had, including aerial photograph, but I also agree that after all this effort the uncertainty was quite significant. Q. And the point is that slimes settle out of water relatively slowly, don't they? A. Correct. Q. And they settle more slowly the finer they are? A. Correct. … Q. Just in principle, the amount of settlement will depend on the amount of slimes suspended in the pond at the time of the encroachment and the properties of those slimes suspended and the length of time during which the encroachment lasted; correct? A. Yes. I mean, once the fine particles were there, it would take a longer or shorter time to settle, but they would eventually settle so they will be there eventually.”
“Q. … Isn’t it the case, particularly based upon the panel’s findings and the facts of the collapse, that the Setback did in fact move the structural face of the Dam over deposited slimes? A. Thank you for that question. It’s not certain but it’s more likely than not in my opinion.”
“The grain size distribution and lack of cohesion of tailings make them susceptible to liquefaction under dynamic loading or even as a result of rapid change in static loading or location of the phreatic line.”
“In a body of low density tailings, the pore pressure during shear may rise to equal σ [(total vertical stress)], so reducing τ [(soil shear strength)] to zero. This situation is called liquefaction: the mass behaves as a dense liquid and if it is free to flow (dam breach) it can exert considerable force on any object in its path. It is because of this that a release of tailings can cause so much more damage than a corresponding release of water. The shearing strains produced by seismic shocks in loose tailings can cause liquefaction and the shearing strains along a potential slip surface can result in considerable loss of shear strength which must be taken into consideration when assessing dam stability.”
“Failure of a tailings dam itself, while causing an inconvenience, may not have seriously damaging consequences nor cause any loss of life. The serious danger of a breach is the possibility of a subsequent flow slide of liquefied tailings.”
“Look out for loose saturated sandy formations and study their liquefaction potential.”
“Design analyses must include both undrained strength analysis (USA) and effective stress analysis (ESA), with design controlled by the analysis type giving the lowest factor of safety.”
“Static liquefaction is another important slope failure mechanism whose potential needs be evaluated as part of the undrained loading condition. As defined by Fell et al. (2007), static liquefaction occurs at relatively low stresses and is characterised by large pore pressure development and a brittle stress-strain response, resulting in close to zero effective stresses.”
“Q. So that may go slightly further than the recommendation in ICOLD that you use the undrained strength in relation to loose tailings, but you would agree that what’s reflected in Martin and McRoberts is nevertheless a sensible recommendation for a geotechnical engineer dealing with an upstream tailings dam? A. A sensible recommendation they made but not universally used or adopted. Q. Yes. But whether or not it was adopted universally in the way that Martin and McRoberts advocate, it should certainly be used and adopted as ICOLD advocate when one is considering loose contractive tailings? A. Yes.”
“For normal embankments, it is generally accepted that a factor of safety of 1,5 in stability analyses is adequate, when using the maximum deviator stress shear resistance. However, for loose sand on tailings, the factor of safety shall be higher, to give adequate margin of safety. A more conservative safety factor is recommended. A useful reference for management against static liquefaction is Some Considerations in the Stability Analysis of Upstream Tailings Dams (Martin and McRoberts, 1999)”
“Q. And so I was putting it to you yesterday that an engineer with just the data available would have identified that there was an unacceptably high risk of liquefaction. An engineer actually on the ground also had the benefit of the field evidence of seeing a slope failure, didn't they? A. Not from liquefaction but from instability, localised instability. Q. Localised instability and clear evidence of saturation; yes? A. Yes. Q. Which, of course, as we keep on coming back to, is one of the conditions of liquefaction? A. Yes.”
“Q …Now, ignoring any question of hindsight, just based upon the information available, both in terms of data and observable field evidence and the history of incidents, a prudent geotechnical engineer would have realised there was a potential problem here, wouldn’t they? A. Yes. Q. And they would have put the pieces of the jigsaw together and ensured that there was a proper stability analysis incorporating a proper liquefaction study; yes? A. Yes, I think so.”
“There is nothing fundamentally wrong with upstream tailings dams provided that key principles are adhered to in the design, construction, and operation of such dams.”
“The art and science of geotechnical engineering and geology, plus the detailed research studies of the behaviour of embankment dams, has given designers sufficient information to enable of the design of safe tailings dams.”
“[11] First, the task of the trial judge when there are disputed questions of foreign law is to determine what the highest relevant court in the foreign legal system would decide if the point were to come to it: Dexia Crediop SpA v Comune di Prato [2017] 1 CLC 969 (“Dexia”), para 34; Morgan Grenfell & Co Ltd v SACE Istituto per I Servizi Assicurativi del Commercio[2001] EWCA Civ 1932 (“Morgan Grenfell”), para 50. It is not sufficient for a party to identify a judgment of a foreign court of first instance which may be on point and assert that the task of the appellate court is simply to analyse that judgment. [12] Secondly, if the foreign legal system is a common law system which adopts a similar approach to legal reasoning and statutory interpretation to that of English law, the English judge at first instance is entitled and required to bring to bear his or her knowledge of the common law and the rules of statutory construction in analysing the foreign law… [13] Thirdly, where the foreign law is in a foreign language the trial judge will often be dependent on translations of the relevant texts, which may or may not be precise and which may or may not be disputed, and on the evidence of the foreign law experts to understand the meaning and nuances of the foreign language in the relevant text… [14] Fourthly and more widely, where the first instance judge is dependent upon the evidence of foreign law experts, who disagree as to the interpretation and application of a foreign law, and has to decide issue by issue whose evidence to prefer, the judge will have regard to all the evidence presented to him. The judge will reach a view based on an assessment of each expert having regard to each expert’s evidence as a whole, and the way in which each expert answered the questions posed in chief and on cross-examination to justify his or her opinions. The judge will thus evaluate the experts’ reasoning. Not all the matters which have influenced the judge in forming a view on which evidence to prefer will always be recorded in any detail in a judgment or can be ascertained from reading a transcript of the proceedings. The judge will have regard to “the whole of the sea of evidence presented to him whereas an appellate court will only be island hopping”
“Everyone has the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both Government and community shall have the duty to defend and preserve it for present and future generations. … §2. Anyone who exploits mineral resources is obliged to restore the degraded environment, in accordance with the technical solutions required by the competent government body, as provided for by law. §3. Conducts and activities considered harmful to the environment shall subject the offenders, be they natural or legal persons, to criminal and administrative sanctions, without prejudice to the obligation to redress the damage caused.”
“The National Environmental Policy aims to preserve, improve, and recover the environmental quality conducive to life, aiming to ensure, in the country, conditions for socio-economic development, the interests of national security and the protection of the dignity of human life.”
“The imposition on the polluter and predator of the obligation to recover and/or compensate for the damage caused and, on the user, of a contribution for the use of environmental resources for economic purposes.”
“Without prejudice to the application of the penalties provided for in this article, the polluter is obliged, regardless of fault, to indemnify or repair the damage caused to the environment and to third parties affected by its activity … ”
“Environment, the set of conditions, laws, influences and interactions of a physical, chemical and biological order, which allows, harbours and governs life in all its forms.”
“Degradation of the quality of the environment: the adverse alteration of the characteristics of the environment.”
“pollution: the degradation of the environmental Quality resulting from activities that directly or indirectly: a) harm the health, security and well-being of the population; b) create adverse conditions for social and economic activities; c) unfavourably affect biota; d) affect sanitary or aesthetic environmental conditions; e) release materials or energy in disagreement with established environmental standards.”
“the polluter is obliged, regardless of fault, to indemnify or repair the damage caused to the environment and to third parties affected by its activity.”
“More than special, environmental civil liability is very special, as it is governed by its own peculiar principles, based, among others, on the polluter pays principle, the full redress principle, the principle of the propter rem nature of environmental obligations and the principle of in dubio pro natura. This very special legal regime is reinforced by the general concern for dissuasion, which, in addition to restoration in natura, ecological compensation for losses of biota and compensation for the remaining damage, including moral damage, also focuses on educating and preventing future aggression by other people. From this perspective, civil liability actually guarantees the credibility and authority of the obligations established by Environmental Law. Hence the care to only apply common rules, among which those of the Civil Code, when perfectly compatible with the unique objectives and references of the microsystem, so that, under no circumstances or justification, the profit is internalised in the degrader’s pocket and, on the other hand, the negative impacts are socialised on the environment with the community and future generations.”
“The appellant's liability goes beyond mere fault in vigilando or in eligendo, as it is strict. PETROBRAS develops a risky activity. The exploitation, refining and commercialization of oil and its byproducts can cause damage to the environment, regardless of whether they have resulted from its direct action or through the outsourcing of activities, as it is so common today, when the modern company seeks to focus on its essential objective, handing over to contracted companies the execution of ancillary tasks. It is not uncommon for service providers, in turn, to also do the same, in relation to certain aspects of a work, through subcontracting. If it were necessary to previously investigate the direct liability for pollution, it would be extremely difficult to establish it, considering that this is not always revealed in an initial examination. Thus, it could be attributed to a sub service provider or perhaps to one of its most humble employees, if the appellant's argument could prevail in the sense that it did not determine the service provider to pollute the Cubatão River. In order to overcome the possible obstacles in this regard, even before the Civil Public Action Law, Law 6.938/81 was enacted, which, when dealing with the Brazilian Environmental Policy, established strict liability by defining as "polluter, the individual or legal person, public or private, directly or indirectly liable for activity causing environmental degradation" (article 3, IV), making it clear that it is "required, regardless of the existence of fault, to indemnify or redress the damages caused to the environment and to third parties, affected by his activity" (article 14, paragraph 1).”
“In fact, in relation to environmental damage, the full risk theory comes into effect, hence the strict character of liability, with express constitutional provision (article 225, paragraph 3, of the Federal Constitution) and legal provision (article 14, paragraph 1, the Brazilian Environmental Law), therefore, the allegation of exclusion of liability is out of place, sufficing, to that effect, the occurrence of a harmful result to man and the environment arising from an action or omission of the party that is responsible. For all, Annelise Monteiro Steigleder teaches that, according to the provisions of article 14, paragraph 1, of the Brazilian Environmental Law, the liability for environmental damage is strict, assuming that there is an activity that poses risks to health and the environment, and the causal link “is the agglutinating factor that allows the risk to be integrated into the unit of an act that is the source of the obligation to compensate”, so that the one who exploits “economic activity places itself in the position of guarantor of environmental preservation, and the damage that concern the activity will always be linked to it;” for that reason, the request for exclusion of civil liability by the person in charge of the environmental damage is not valid.”
“… it is sufficient in this case to apply the environmental legislation, which affirms the full risk theory to the polluter/payer and establishes joint and several liability among all the actors that have benefited from the activity that resulted in the environmental damage.”
“This Court has already settled this issue, highlighting the case law of the First Chamber on the subject, in the sense that, in the existence of multiple polluting actors, the liability among them is joint and several for the full redress of the environmental damage. The civil liability for environmental damage, whether due to damage to the environment itself (public environmental damage), or to violation of individual rights (private environmental damage), is a strict liability, based on the full risk theory, pursuant to article 14, paragraph 1, of the Brazilian Environmental Law … The polluter-pays principle, enshrined in this legal provision, has full application, and civil liability is not only strict, but follows the Full Risk Theory. … Among the opinion of the legal scholarship, the Honourable Justice Herman Benjamin states that, in the civil liability for the environmental damage, the exculpatory defence of vicarious liability, fault of the victim, act of God, or force majeure are not accepted (BENJAMIN, Herman. Responsabilidade Civil pelo Dano Ambiental. 14.3. The full risk in: Responsabilidade civil [Civil Liability], v.7 - Environmental law/ Nelson Nery Junior, Rosa Maria de Andrade Nery organizers. -- São Paulo: Editora Revista dos Tribunais, 2010. page 501/501) … … According to Justice Herman Benjamin’s lesson, the civil liability for environmental damage stems directly from the fact that the polluter is developing a risk activity from which damage to the environment or to third parties has occurred, thus separating any analysis of the subjectivity of the agent’s conduct, also not admitting some of the traditional civil liability exemptions, such as an act of God, force majeure, third party act or the victim’s own fault. … Thus, although for grounds other than those contained in the appellate court decision, a jointly and severally judgment against the defendants must be upheld not on the basis of the Consumer Defence Code, but based on environmental legislation itself, which embraces the full risk theory to the polluter pays, reporting on the joint and several liability between all agents who take advantage of the risk situation for the environment.”
“Under the system of Law 6.938/1981, environmental damage is governed by the full risk theory, which is justified by the polluter pays principle and the redistributive vocation of environmental law. The polluter pays theory is redistributive in nature and takes as its starting point the distinction between the internalities and externalities of productive activities. In fact, this theory “is inspired by the economic theory that the external social costs that accompany the production process (e.g. the cost resulting from environmental damage) should be internalised, i.e. that economic actors should take them into account when drawing up production costs and, consequently, assume them” (MILARÉ, Édis. Princípios fundamentais do Direito do Ambiente. Justitia, São Paulo, v. 59, n. 181/184, p. 134-151, Jan/Dec 1998). Under this principle, the polluter is therefore obliged to bear the costs of preventing, repressing and repairing the pollution. This model offers greater protection for the environment, society’s collective heritage, by imposing on economic agents the internalisation of external costs in the dynamics of investments involved in their private activity, avoiding the “privatisation of profits and socialisation of losses.”
“Q. Do you agree that there can only be an indirect polluter if there is a direct polluter? A. There can be an indirect polluter if he or she contributed to the activity that generated the damage. Q. So is your answer "Yes" to my question? A. My answer is that as a rule we have a direct and an indirect polluter. Q. Yes, but my question is: we can only have an indirect polluter if we first have a direct polluter; do you agree with that? A. Yes, that's the rule.”
“Q. You say there, and I quote: "There is obviously a certain form of factual subsidiarity -- ie there can only be an indirect polluter if there is a direct polluter." That's right, isn't it? A. As I said before, as a rule, that is exactly it. Q. And it follows, doesn't it, from that sentence in your paragraph 40, that a direct polluter is a separate concept from an indirect polluter? A. The direct or indirect polluter are only different in terms of the degree they are linked to the activity and the activity that caused damage, but for liability purposes they are made equivalent. There is no difference between them in terms of the equivalence for liability. They're joint and severally liable for the damage and optionally the claimant can choose who they are going to sue, whether the direct or indirect polluter. So they are equivalent in terms of liability and responsibility. The basis might be different on a case-by-case basis. Q … a direct polluter is a separate concept from an indirect polluter? Do you agree with that? A. Yes, I do agree because they represent different levels of proximity with the activity and, obviously, the proximity to the damage caused. But I would say again, when it comes to holding people accountable, they're both liable under the law, so the law refers to those who are directly responsible or indirectly responsible. This is what the law says.”
“The undetermined authorship of the dump does not exempt the owner of the area, who can - and should -, as the judgment and the appealed decision rightly point out, be held responsible not only for what he has done, but also for his omission in failing to immediately bring to the attention of the authorities the violation of the law which, if practised by a third party, would end up benefiting him. For the purposes of establishing the causal relationship in environmental damage, the following are equated: those who do it, those who don’t do it when they should, those who let them do it, those who don’t mind if they do it, those who finance it, and those who benefit when others do it.”
“…whatever the legal classification of the degrader, be it public or private, under Brazilian law, civil liability for environmental damage is strict, joint and several, and unlimited, and it is governed by the principle of polluter-pays, of full redress, of priority of redress in natura, and of the favour debilis; the latter legitimates a series of techniques to facilitate access to justice, among which is included the reversal of the burden of proof in favour of the environmental victim. … Strictly speaking, in environmental civil liability, more than being provided on the Civil Code, joint and several liability derives primarily from article 3, item IV, of Law no. 6.938/81, a legal provision whose wording imposes the conclusion that “all of those who contribute in any way to the occurrence of environmental damage shall be held liable for the full extent of the damage”, without prejudice to the right of recourse. If there are several polluters involved in the environmental damage, “the defendant cannot allege to be exempted due to the fact that they were not the only polluter, that there are many others and that it is not possible to identify the one who, by their actions, triggered – as the last straw – the damage” (Jorge Mosset Iturraspe, Responsabilidad por Daños [Liability for Damage], Part VI, Responsabilidad Colectiva [Collective Liability], Rubinzal-Culzoni, Buenos Aires, 1999, page 161). … … joint and several liability does not always emerge in a clear manner. There are more subtle situations in which (legal) joint and several liability arises from tenuous circumstances of a certain (material) joint and several liability, in its vulgar or colloquial sense. This is what occurs with the silence of convenience, which is a theme of the greatest relevance in Environmental Law. It is not unusual for the damage to be caused by multifaceted combinations of activities and substances, which will be of impossible complexity for the layman or even for a technician or an expert, who stumbles upon industrial secrets or find themselves as outsiders and are seen as intruders in the chain of professional and personal relationships that unites the group held liable for the damage. In those situations, paraphrasing Aguiar Dias in his classic authority, the silence of the real actor and his companions creates joint and several liability among all (José de Aguiar Dias, Da Responsabilidade Civil [On Civil Liability], 7 th ed., vol. 2, Rio de Janeiro, Forense, 1983, page 901.) … The concept of polluter in Brazilian Environmental Law is extremely broad, and it is intertwined, by express legal provision, with the concept of degrader of the environmental quality, that is, all and any “individual or legal entity, whether governed by public or private law, that is liable, directly or indirectly, for an activity that is causative of environmental degradation” (article 3, item IV, of Law no. 6.938/1981, emphasis added.) On the other hand, for the purpose of determining the causal link in urban-environmental damage and of possible passive joint and several liability, those who do, those who do not do when they should do, those who do not mind if they do, those who are silent when it is within their competence to report, those who finance for others to do, and those who benefit when others do, are all equivalent (see Special Appeal no. 650.728/SC). There is, unquestionably, strict civil liability, under the terms of article 14, paragraph 1, of Law no. 6.938/81. The case law of the Superior Court of Justice is settled in numerous cases in this regard. Therefore, under the terms of Law no. 6.938/1981, the public body is strictly, unlimitedly, jointly and severally liable for environmental and urbanistic damage that it, “direct or indirectly”, may cause. The situation is simpler when the Government itself, through a commissive act, materially causes the degradation, for example, by illegally deforesting a Permanent Preservation Area. It is imputation for its own actions. Although less common, the co-liability of the Government arising from the omission of its duty to control and oversight the integrity of the ecologically balanced environment is not very different in essence, as demonstrated by several cases cited below, to the extent that it contributes, directly or indirectly, to the degradation of the environment itself, as well as to the aggravation, consolidation, or perpetuation of this degradation, all without prejudice to the adoption of disciplinary, criminal, and civil measures against public agents that are negligent or lazy, including with regard to misconduct in public office. … It is worth emphasizing that in environmental civil liability, a completely special regime, fault does not enter through the front door, nor through the back door, or even as a measure of the State's duties…”
“The allegation of fault of a third party does not release the liability of the carrier of dangerous cargo, due to the objective nature of this liability. The case pertains to the full risk theory, thus giving rise to the strict nature of the liability. Moreover, the exclusion of liability for fault of a third party, argued based on the allegation that the manoeuvre that caused the accident was caused by the fact that the signal buoy was displaced could never be accepted. The environmental damage, the consequences of which have spread to the injured party (as well as to the other injured parties), is, by express legal provision, of strict liability (article 225, paragraph 3, of the Federal Constitution and article 14, paragraph 1, of the Brazilian Environmental Law), imposing, therefore, on the polluter, to compensate, to subsequently charge a third party who may be liable for the fact. Therefore, the allegation of the occurrence of an act of God as defence to liability is invalid.”
“Annelise Monteiro Steigleder teaches that according to the provisions of article 14, paragraph 1, of the Brazilian Environmental Law, liability for environmental damage is strict, informed by the Full Risk Theory, assuming that there is an activity that poses risks to health and the environment, and the causal link ‘is the binding factor that allows the risk to be integrated into the unit of an act that is the source of the obligation to compensate’, so that the one who exploits “economic activity places itself in the position of guarantor of environmental preservation, and the damage that concerns the activity will always be linked to it” which is why the person responsible for the environmental damage cannot invoke exclusions of civil liability. Liability for environmental damage is strict, as set forth in article 14, paragraph 1, of the Brazilian Environmental Law, encompassed by article 225, paragraphs 2 and 3, of the 1988 Federal Constitution, and its assumption on the existence of an activity entailing risks to health and the environment, with the entrepreneur being obligated to prevent such risks (prevention principle) and to internalize them in its productive process (polluter-payer principle). It also presupposes the damage or risk of damage and the causal link between the activity and the effective or potential result. The causal link is the binding factor that allows the risk to be integrated into the singularity of the act, which is the source of the obligation to indemnify. It is an objective element, for it alludes to an external bond between the damage and the fact of the person or thing. While in fault-based civil liability, attribution of the damage shall be connected to the idea of predictability, in strict liability the predictability element does not exist, with the criteria of attribution of damage to the agent being widened, coming to a nearly purely material focus, so much so that, with the evidence that the action or omission was the cause of the damage, the attribution is virtually automatic. The legal system supposes that anyone who employs activities encumbered with strict liability shall exercise a judgment of prediction by the simple fact of performing them, thus accepting the damaging consequences inherent thereto. The party exploiting the economic activity puts itself in the position of guaranteeing environmental preservation, and the damage regarding the activity shall always be bound thereto. There is no investigation on the action or practices of the polluter/predator, for the risk substitutes them. The causal link is the assumption that concentrates the biggest issues in from several concurrent causes, simultaneous and successive, rarely presenting a single linear source. ... The full risk theory originally gave standing to the strict liability and proclaims the redress of the damage even when it is not voluntary, with the agent being liable for any act that it materially caused, except for facts exterior to mankind. In the words of Caio Mário da Silva Pereira, it is "a purely negativist theory. It is not the case to ponder on how or why the damage occurred. It suffices to assess whether there was damage, bound to any fact, to assure compensation to the victim”
“The civil liability for environmental damage, whether due to damage to the environment itself (public environmental damage), or to violation of individual rights (private environmental damage), is that of strict liability, based on the integral risk theory, pursuant to article 14, paragraph 1, of Brazilian Environmental Law … The polluter pays principle, recognised in this legal provision, whose civil liability is not only strict, according to the full risk theory -, is fully applied. … Strict liability is therefore based on the concept of social risk, which is implied in certain activities, such as the industry, the means of public transportation, and power sources. Therefore, strict liability, based on the risk theory, is an imputation attributed by law to certain people to reimburse the damage caused by activities carried out in their interest and under their control, without proceeding with any questioning regarding the subjective element of the conduct of the perpetrator or their representatives. Thus, the causal relation between the damage suffered by the victim and the situation of risk created by the perpetrator is sufficient. The obligation to indemnify is strictly imputed to whomever knows and dominates the source of the risk, and shall, based on social interest, be liable for the harmful consequences of their activity regardless of fault. … In risk-benefit, the strict liability is based on the fact that the responsible agent gets the benefits and must also bear the charges (“ubi emolumentum, ibi onus”). In professional risk, the harmful event is the result of an activity or occupation carried out by the responsible agent. In the created risk, similarly to the previous one, the strict responsibility is attributed to the one who creates a situation of hazard through his/her activity or occupation. In practice, there is no significant difference between such modalities of the risk theory, as the agent may try to rule out its civil liability by means of proving some cause of break of the causal link, such as the victim’s exclusive fault, exclusive third party fact and force majeure. The modality that presents the most striking peculiarities is exactly the full risk theory, which matters at the moment. It constitutes an extreme form of risk theory in which the causal link is strengthened so as not to be disrupted by the implementation of the causes that would normally affect it (e.g., victim’s exclusive fault; sole fact of a third party, force majeure). Such modality is exceptional, as it can be used as a basis for those legal cases in which the risk caused by the economic activity is also extreme, as it occurs with nuclear damage (CF, article 21, XXIII, subitem “c”, and Law No. 6,453/77). The same occurs as environmental damage (Federal Constitution/88, article 225, head paragraph and paragraph 3, and Brazilian Environmental Law, article 14, paragraph 1), in view of the growing concern of the society with the environment. In the academic writings, the eminent Justice Herman Benjamin affirms that, in the civil liability for the environmental damage, the exclusionary conduct of the third part act, fault of the victim, act of God or force majeure are not accepted (BENJAMIN, Herman Responsabilidade Civil pelo Dano Ambiental [Liability for Environmental Damage] 14.3. O risco integral [The full risk] in: Responsabilidade civil v.7 - Environmental law/ Nelson Nery Junior, Rosa Maria de Andrade Nery organizers. -- São Paulo: Editora Revista dos Tribunais, 2010. page 501/501), verbis: The Brazilian Environmental Law includes the civil liability of the degrader in its strict form, based on the full risk theory, which concept meets its basis “in the idea that the person who creates the risk must redress any damage arising from their enterprise. Therefore, evidence of the action or omission on the part of the defendant, the damage and the causal link are sufficient. ... The Brazilian Law, especially after the Federal Constitution of 1988 (it is the duty of all...), does not accept any distinction - rather than in case of recourse action - between the main claim, the accessory claim and the co-claim. Nelson Nery Junior and Rosa Maria B. B. de Andrade Nery are completely right when affirming that ‘regardless of the participation of someone in the cause of damage, they shall have the duty to compensate’, being accountable for the totality of the damage, even if they have not caused it completely. We all know that ‘one of the major difficulties one can find in actions related to the environment is precisely to determine from whom the emission that caused the environmental damage came, especially when this occurs in large industrial complexes where the number of companies in activity is high. It would not be reasonable that, due to the inability to accurately establish with whom the isolated liability lies, one allowed the environment to remain without redress.”
“7. From the wording of the above-mentioned articles, joint and several liability can be inferred within the scope of Environmental Law, whereby liability will fall on all those who directly or indirectly caused environmental degradation, provided that a causal link can be established between the conduct or activity and the damage. It is important to highlight that once joint and several liability is established, each polluter/degrader responds for all. And the holder of the cause of action may demand compliance with the obligation from certain debtors, from all of them jointly, or from the one with the best economic condition. 8. The definition of the indirect polluter has been broadened, expanding the list of those jointly responsible. In this sense, an excerpt from the Superior Court of Justice (STJ) summary: “(...) 13. For the purpose of determining the causal link in environmental damage, those who do something, those who do not do it when they should […], those who let it be done, those who do not care when it is done, those who finance it so that it is done, and those who benefit when others do it are considered under same conditions. 14. Once the causal link between the appellants’ action and omission with the environmental damage in question has been established, the duty to promote the recovery of the affected area and to compensate for any remaining damage arises, objectively, in accordance with article 14, paragraph 1, of Law 6.938/81. (...)” (Special Appeal to the Superior Court of Justice 650728/SC, Reporting Justice HERMAN BENJAMIN, SECOND PANEL, Electronic Court Register (Dje) of2 December 2009 ). 9. The case law of the Superior Court of Justice is consistent with the impossibility of any of the parties involved claiming, as a way of exempting themselves from the duty to make reparations, that they did not directly and personally contribute to the environmental damage, considering precisely that environmental degradation imposes, among those who contribute to it, the joint and several liability for full reparation of the damage (Special Appeal to the Superior Court of Justice 880160 / RJ - Reporting Justice Mauro Campbell Marques – Court Register (DJ) of4 May 2010 ). 10. There is also precedent in this Court’s case law to the effect that, even in the case of multiple polluting agents, there is no obligation to form a joinder of parties since they are jointly and severally liable for the full reparation of environmental damage (it is possible to sue any of them, individually or jointly, for the whole outcome).” “(...) 13. For the purpose of determining the causal link in environmental damage, those who do something, those who do not do it when they should […], those who let it be done, those who do not care when it is done, those who finance it so that it is done, and those who benefit when others do it are considered under same conditions. 14. Once the causal link between the appellants’ action and omission with the environmental damage in question has been established, the duty to promote the recovery of the affected area and to compensate for any remaining damage arises, objectively, in accordance with article 14, paragraph 1, of Law 6.938/81. (...)”
“… all those who directly or indirectly caused environmental degradation may be sued for this reparation, as long as a causal link can be established between the conduct/activity and the damage, and one, some or all of the polluters may be sued. As can be seen, the dispute was decided based on joint and several liability resulting from the actions of multiple agents responsible for environmental degradation, relating the execution of works without observing environmental care and environmental damage (silting of the riverbed), this being the causal link in the specific case. However, by appealing and arguing that there must be a relationship between its specific conduct and the environmental damage, the party ignored the legal premise that supported the appealed decision (environmental damage caused by the actions of multiple polluting agents, which represents joint and several liability), that is, it did not challenge the grounds that liability is joint and several in these circumstances.”
“Q. The term "its activity" is clearly a reference to the activity that is referred to in Article 3, item IV, isn't it, if we go back to page 2 of this document? A. Yes, one may say that. Q. And so the term "its activity" is therefore a reference to the activity for which the polluter is directly or indirectly responsible under the "polluter" definition, isn't it? A. Yes. Q. The focus in the "polluter" definition is on the causal link between the activity and the degradation, isn't it? A. Yes. Q. The degradation of environmental quality in turn needs to give rise to damage for the purposes of engaging the indemnification and repair obligation in Article 14, paragraph 1; yes? A. Yes. Q. And so the obligation -- the subject of the obligation in Article 14, paragraph 1, is damage caused by its activity; in other words, damage caused by the activity for which the polluter is directly or indirectly responsible; yes? A. The activity that causes the damage. Q. For which the polluter is directly or indirectly responsible? A. It's the direct or indirect causer.”
“The adoption of the full risk theory has the following main consequences that facilitate the duty to repair: (i) the dispensability of investigating fault; (ii) the irrelevance of the lawfulness of the activity; and (iii) the inapplicability of exclusions of causation; and (iv) the application of the rules on joint and several liability.”
“Q. What Caio Mário da Silva Pereira is saying here is not that there is no need for a causal link; what he's saying is that it suffices to assess whether there was damage bound to any fact to assure compensation to the victim. And the fact that he's referring to there is the fact of the activity, isn't it? A. And I don't agree. … Q. But the passage from Lucarelli does not say that there is no need for causation. What it is saying is that the right to compensation or the obligation to pay compensation arises from the fact that there is the activity from which the loss arises; in other words, the loss must have been caused by the activity, but that is what gives rise to the obligation to pay compensation. So there is need for a causal requirement but the causal requirement that Lucarelli is describing is the causal requirement between the activity and the loss, isn't he? Yes? A. Well, that's why I think the arguments are overlapped here, and it is difficult to agree or disagree fully because there are parts of these quotations that I agree with. I agree that, if from the activity or the operation we had the loss, then there is a causation link, and I agree with the final part of the argument when he says that you can't exclude anything else. The part I don't agree with is that -- when he says, "It is possible to make liable all of those whose loss can be imputed to". I think here he is broadening the causation link. I believe that those who operate the activity or are linked to the activity can be made liable. That's why I understand your effort, but this is an overlapping of arguments where it's impossible to say whether I agree or don't agree. … Q. … So where it says, "to hold liable anyone", if one were to say "anyone responsible for the activity", then you would accept, I take it, that that's a correct statement? A. All of those who caused or gave rise to the cause, that had the conduct, that were practising or exercising the activity, then yes.”
“Yes, they must look at them because, in order to attribute responsibility as an author which is directly or indirectly responsible, and when we use the multifactorial test, which is only a name that describes what the STJ has been doing, especially after the Mangroves case, it’s really a case of verifying whether we have actions or omissions. This is evident. We have actions or omissions which may involve an activity and its exploitation but it's the activity that attracts the full risk theory. That’s why Article 3, item (IV), refers to "activity" and not "actions" or "omissions". In fact, in the same cases where the STJ refers to concrete "actions" and "omissions", they also use in many of these cases the term "activity" and also evidently the full risk theory which is only attributed or is strictly linked to the activity.”
“For the attribution of responsibility or liability there should be factors for the imputation of responsibility or liability. These can be actions or omissions. The Benjamin test provides for a number of possibilities and that demonstrates this also.”
“… it’s not a closed list because what makes someone an indirect polluter is that they have some form of effective contribution that connects them to the activity that caused the damage, and that's why the legal concept is broad. It doesn't say who the indirect polluter is or the direct polluter; it only says directly or indirectly responsible.”
“Environmental civil liability falls on the direct polluter and also on the indirect polluter, who, although does not cause the damage, contributes to it, with the law understanding that such a contribution is capable of generating liability, in solidarity with the direct responsible party. ... Therefore, to hold the polluter civilly liable and obtain environmental reparation, it is necessary to prove that only the elements of strict civil liability are present, namely: activity, damage and causal link. … A considerable part of academic writing has supported the idea that there is only a contribution from someone (indirect polluter) to the damage caused by another (direct polluter) if that someone fails to observe a safety duty assigned to them by the legal system, precisely to control the damage. An indirect polluter is, therefore, someone to whom the standard imposes measures to avoid the polluting event and the degradation of the environment, but does not comply with them, causing, through their undue action or lack of action, the occurrence of environmental damage.”
“It is not reasonable to also affirm that the liability of the appealed parties would be a logical result from possible omissive behaviour, as this, as known, is only verified in cases in which the agent (supposed polluter), having the duty to prevent degradation, it still fails to do it, benefiting, even if indirectly, from the behaviour of a third party directly responsible for the damage caused to the environment. Also, it cannot be said that those risks inherent to sea transportation are related to the activities developed by the respondents. ”
“Yes. I see the reference to the duty but also a reference in the same paragraph to benefits, whether directly or indirectly, and also, in the following paragraph, risks that are inherent to maritime transportation which are related to the activity -- which are not related to the activity of the defendant. So they talk about the risk of the activity on the following paragraph.”
“A. If they had incurred in any of these alternatives, they could be held responsible as indirect polluters, but because none of these were verified, they were not held responsible. Q. And what the court is doing here is looking, isn't it, at the link between the purchasers' acts and the damage; yes? A. Not just that. They are also clearly connecting one of the hypotheses to the risk of the activity…”
“It is undeniable that the environmental liability in relation to the fact in question is strict. However, without the causal link one cannot attribute to the defendants the cause of the damage. From the appellate decision mentioned below, I extract and transcribe the following: In this case, the defendants/appellees are not polluters, not even by comparison, as they would only acquire the cargo that did not reach them, as the explosion of the vessel occurred at the sea terminal, before the transfer of the thing. The act of acquiring a given product alone does not characterize the causal link with the claimed damage, since the mere acquisition, without the transfer of the acquired thing, is not the cause of the damage. The losses were caused by the explosion of the vessel, without bearing a relationship with the purchase of the product transported by it. … In this case, even though it is the case of environmental damage, the defendants did not contribute to the occurrence of the explosion of the vessel, and may not be held liable for something that was not within their reach. … Thus, as the defendants limited themselves to acquiring the load, which was not even delivered to them, since the explosion occurred when the vessel was still moored at the maritime terminal for discharge, they cannot be considered polluters, even by equity. Moreover, it does not seem reasonable to impute to the defendants the liability for losses caused by the explosion of the vessel, since the harmful event occurred before the transfer. Please note that the defendants were never owners of the load (as the transfer did not occur), nor did they have them under their custody, which prevents them from being considered causers of the claims losses, especially because they had no domain over the risk inherent to the product transportation, loading, and unloading activity. A pure and simple application of the theory of equivalence of conditions leads to break of the causal link between the acquisition of the product and the explosion of the vessel, mainly in the case of records, in which it was found that the possible causing agents of the damage are the owner of the vessel and the maritime terminal. … … once it has been defined who has possibly caused the damage, the causal link is broken with respect to the others, and the application of the full risk theory is restricted to those that possibly caused the damage, which are required to redress it.”
“Note that strict civil liability, based on the risk theory, was developed based on the finding – initially in the field of occupational accidents, gradually extending to contemplate dangerous activities, such as transportation, mining, gas and nuclear energy – that the civil liability based on fault and the illegality of the act sometimes generated iniquities, proving insufficient to enable the redress of damage and demonstrate that the party responsible for the activity caused the damage. In addition, the theory that induces those who develop potentially dangerous activities shall ensure that the activity will not cause harm to others, because if they occur, they cannot refrain from the duty of indemnification, arguing the absence of fault, as their liability shall be strict. “The obligation to redress the damage only arises from the mere exercise of an activity which, if causes damage to third parties, will cause, for the party who hold control of the activity, the duty to indemnify” (MELO, Nehemias Domingos de. Da culpa e do risco como fundamentos da responsabilidade civil. [Fault and risk as principles of civil liability] São Paulo: Atlas, 2012, pages 29-30).”
“Sergio Cavalieri Filho, with reference to the notes by Anderson Schreiber, reflects that the arrival of strict liability required double attention when analysing the causal link, the interruption of which consists of the only way of excluding the duty to indemnify; the whole discussion, in strict liability actions starting gravitating around the legal concept of causal link. Currently, it is even affirmed that the decision on liability, in cases of strict liability, turns out to be translated into the decision on the existence of a causal link between the fact and the damage (CAVALIERI SON, Sergio. Programa de responsabilidade civil. [Civil liability program] São Paulo: Atlas, 2015, pages 69-73). … This means the law is consistent with the comparative law and with the content of the legal writing that “the obligation to redress the damage only arises from the mere exercise of an activity which, if causes damage to third parties, will cause, for the party who hold control of the activity, the duty to indemnify” (MELO, Nehemias Domingos de. Da culpa e do risco como fundamentos da responsabilidade civil. [Fault and risk as principles of civil liability] 2 ed. São Paulo: Atlas, 2012, page 30).”
“The basic idea of the legal writing is that there is only an adequate causal relationship between the fact and the damage when the act practiced by the agent is such as to cause the damage suffered by the victim, according to the normal course of things and the common experience of life.”
“… there is a causality in a broader sense implying two relationships, the imputation of responsibility to those that contributed directly or indirectly, and it is at this level of imputing responsibility to those who contributed directly or indirectly to the activity where there is no exclusion of responsibility due to the traditional reasons, excluding of course the intent. Now, when we talk about the second link, which is the link between the activity and the damage -- I also made this clear -- of course then there is a naturalistic relationship between the damage and the conduct, but this also has to be verified on a case-by-case basis to see if it leads to liability. And in this case, the exclusion of all of these other clauses have to do with the imputation of responsibility and here I'd like to make it clear that I'm talking about the second link. This is my position.”
“… the equivalence of conditions, the sine qua non conditions, attributes any circumstance which has helped in producing the damage, the quality of a cause, therefore any cause may have been possible to have generated the damage.”
“Q. The Benjamin statement takes as a given that the activity has caused environmental damage but seeks to provide guidance as to the nature of the required causal link between the relevant person and the activity, doesn’t it? A. I don't think that we can derive that much from the statement this is my opinion. You can’t reach this level of conclusion based on this statement.”
“4. Whatever the legal classification of the degrader, be it public or private, under Brazilian law, civil liability for environmental damage is strict, joint and several and unlimited, and it is governed by the principle of polluter-payer, of full redress, of priority of redress in natura, and of the favour debilis; the latter legitimates a series of techniques to facilitate access to justice, among which is included the reversal of the burden of proof in favour of the environmental victim. ... 13. The Administration is jointly and severally, restrictively and unlimitedly liable, pursuant to the Brazilian Environmental Law, for urban and environmental damage resulting from the omission of its duty to control and inspect, to the extent that it contributes, either directly or indirectly, both to the environmental degradation itself, and to its aggravation, consolidation, or perpetuation, all without prejudice to the adoption, against the negligent or insidious public agent, of disciplinary, criminal, civil, and administrative measures in the field of misconduct in public office. 14. In cases of omission of the control and supervisory duty, the joint and several environmental liability of the Government is an enforceable secondary liability (or with order of preference). 15. Joint and several liability and subsidiary enforcement means that the State is part of the enforceable instrument under the condition that, as reserve debtor, it is only called upon to pay the debt if the original, direct, or material degrader (= principal debtor) fails to do so, either due to total or partial exhaustion of assets or insolvency, or due to impossibility or incapacity, including technical incapacity, of compliance with the judicially imposed remedy, always ensuring the right of recourse (article 934 of the Civil Code), disregarding the legal personality (article 50 of the Civil Code).”
“… it is inspired by reasons of a social, political, and economic nature, and by reasons of justice as well, since it would be inadvisable to call the State - which, as a result of its anomalous position, in the end, as the representative of society-victim of the urban-environmental damage, is also harmed - to be held liable, in the front line, for the degradation materially caused by a third party and which only benefits or profits them alone.”
“Q. Under the DLC structure, BHP Australia and BHP UK operated through boards of directors that comprised the same individuals -- correct? A. That is correct. Q. -- and a common CEO – A. That is correct. Q. -- and unified executive management? A. That is also correct. Q. The Iron Ore executive team was part of the unified executive management of the DLC having responsibility for the Iron Ore CSG? A. That's also correct.”
“Today Martins (CCO of Vale) and I met with Tadeu (outgoing CEO), Ricardo (incoming CEO) and Roberto (Executive Director of Marketing) and informed them of the CEO change in Samarco. In the discussion, we broke down Ricardo’s work into "things we require" and "things we recommend". …”
“The Dam Failure risk is now 'Requires Significant Improvement'. Given this significance of this risk and the low rating, do we feel this is the correct rating and the correct remediation plans? Also per the Dam Break study and work last year, it appears the fatalities are a lot higher based on response times, community population etc.”
“I wouldn't be surprised to see that person attending the board because they would have had some involvement with the Samarco team prior to the board taking place and they would presumably be interested in seeing that what they had discussed with the Samarco team prior was actually reflected in the board, and then, in the event that there was discussions post that board, they would have heard the information first-hand. ”
“Q. … if the BHP board had not approved the project the day before, as I understand your evidence, the BHP representatives on the Samarco board, on 20 October, would not have been authorised to approve the project and would not have approved the project; is that fair? A. That's fair. Q. And presumably the same result would have followed if the investment committee of BHP had not endorsed the execution of P3P and had not allowed it to be taken forward for approval by the BHP board? A. That's correct.”
“The Iron Ore vision is to be the premier global iron ore producer. The primary objective is to deliver long-run value for our shareholders through safe, sustainable, and profitable growth of Western Australia Iron Ore and Samarco, plus secure additional global opportunities. … Samarco’s growth strategy is to increase pellet capacity to around 30Mtpa by 2014 through the development of the fourth pellet plant project (P4P). Further, Samarco’s Shadow RDP has identified sufficient development potential to support a fifth phase of growth.”
“Samarco will carry out the approved growth program which includes the successful execution of P4P (fourth pellet plant), conclusion of P5P (fifth pellet plant) studies and submission to the Board for execution, and conclusion of P6P (sixth pellet plant) identification phase studies. Through delivery of this growth program Samarco's pellet production is expected to reach a capacity of 30Mtpa.”
“This project has not received the environmental approval necessary to construct the pellet plant. It sounds like this isn't going to be received until early-mid March. Additionally, key agreements around waste dumps and tailings disposal are not in place. The Samarco Board therefore deferred a decision on P4P until the April Board. Martins has given me his word that Vale will approve it at that Board. We will therefore restructure our internal BHPB approvals to have them done before April. Next weeks IC meeting on this will be cancelled.”
“The Board approved the P4P project for execution as presented, subject to the approval of the project by the Administrative Board of Vale, expected by April 19th. The Board also approved the immediate establishment of the P4P Steering Committee, whose composition and structure should be proposed by Samarco and ultimately approved by the Operations Committee.”
“The Board noted the report from the Finance Committee Chairman that the Finance Committee has agreed to recommend to the Board that it consider delegating authority to the Finance Committee to among other things, approve: … asset financing for … the Samarco joint venture, in the amount of up to … US$1,000,000,000 … to support growth capital expenditure projects that are already Board approved … and the Board noted that if the delegation is made, the Committee will be presented with information in relation to the funding costs for any debt raising it is asked to approve.”
“Our Treasury meeting with Vale and Samarco went well yesterday and, as expected, they are happy to raise funds to allow for the flexibility to pay a dividend if the market continues to be strong. Unfortunately we have not received the financial forecast from Samarco yet and we are still confirming the form of the Board paper for the US Bond. We will send them through to you once we have them though.”
“Q. So what we see, don't we, is BHP Group Treasury, via Chloe Lennox in particular, playing an active role in both the Treasury Sub-committee and the Finance and Strategy Committee of Samarco in order to push the BHP view as to the optimum use of funds through Samarco; yes? A. No, I don't agree with that. The committee is a formation of a number of representatives from Samarco and BHP and Vale, so to refer to Chloe as the architect would be unfair. Q. Well, obviously Chloe needs to bring Vale round to her view of things, but we saw in the email that that's precisely what she thought she had achieved, isn't it? A. Yes, it would refer to that -- yes, I'd agree with that.”
“A defined non-controlled joint venture and minority interest that is a producing entity valued above the group approval threshold where BHP Billiton either jointly operates or has influence via management appointment processes and has an ability to implement selected BHP Billiton standards.”
“A defined non-controlled joint venture and minority interest that is a producing entity valued above the group approval threshold where BHP Billiton has limited or no direct influence and cannot implement BHP Billiton standards.”
“There will be an obligation to redress the damage, regardless of fault, in the cases specified by law, or where the activity usually developed by the author of the damage involves, by its nature, risk to the rights of others.”
“Anyone who, by voluntary act or omission, negligence or imprudence, violates a right and causes damage to another, even if exclusively moral damage, commits an illicit act.”
“Anyone who, through an illicit act (articles 186 and 187), causes harm to another is obliged to repair it.”
“a legal duty that is extracted neither from the cold letter of the law, nor from the subjectivism of the hermeneut of the law, but, eventually, from the legal system, understood as a coherent system with its own rules and principles, with contents variable over time and space. … [I]t follows that 'unlawfulness', which gives rise to civil liability, is not synonymous with 'illegality', but with violation of a pre-existing duty contemplated by the system, either by law or by principles deriving from the law.”
“Civil liability for omission arises from the failure to fulfil the duty to prevent injury to the protected legal sphere of others. This duty can come from the law, from a legal transaction or from the risk created for the legal interest.”
“For Sérgio Cavalieri Filho, the omission cannot even physically or materially generate the damage, since "nothing comes from nothing". Nevertheless, it acquires sufficient legal relevance to assign liability to the agent when it evades the legal duty to act to avoid the production of the damage. The [author] points out that the legal duty to act, to perform an act aimed at preventing the damaging result, may originate in the law, in a legal transaction or even in a conduct previously practiced by the agent itself that has, with it, created the risk of the occurrence of the result. In such cases, not preventing damage from occurring would be the same as allowing the cause to operate.”
“Q. So just so we're very clear, you're not contending for a combination of Article 225 with Article 186? You're not contending for that? You're contending instead for a combination of 225 with 927, sole paragraph; is that correct? A. Precisely.”
“The controlling shareholder must use its controlling power with the aim of making the company achieve its object and fulfil its social function, and has duties and responsibilities towards the other shareholders of the company, those who work in it, and the community in which it operates, whose rights and interests must be loyally respected and heeded.”
“A controlling shareholder shall be liable for any damage caused by acts performed with abuse of power. 1. An abuse of power may take any of the following forms: (a) guiding the corporation towards purposes unrelated to its corporate object or harmful to national interests … … (g) …to approve, or cause to be approved, irregular accounts rendered by managers (officers and directors) as a personal favour, or to fail to investigate a complaint which he knows, or should know, to be well founded, or which gives grounds for a reasonable suspicion of irregularity. …”
“A controlling company shall be obliged to compensate any damage it may cause to a controlled company by any acts infringing the provisions of articles 116 and 117. 1. Proceedings for compensation may be brought by: (a) shareholders representing five per cent (5%) or more the capital; (b) any shareholder, provided he guarantees payment of court costs and legal costs in the event of the action being dismissed.”
“Even where non-performance results from the debtor’s wilful misconduct, losses and damages only include effective losses and lost profit that are the direct and immediate effect of non-performance, without prejudice to the provisions of the legislation governing procedure.”
“In the determination of the causal link, the majority academic writings of the Civil Law adopts the theory of adequate causality or direct and immediate damage, so that the causal link only exists when the damage is a necessary and adequate effect of a cause (action or omission). This theory was accepted by the 1916 Brazilian Civil Code (article 1,060) and by Brazilian 2002 Civil Code (article 403).”
“How to establish, among several conditions, which was the most appropriate? There is no theoretical rule, no hypothetical formula to solve the problem, so that the solution will have to be found in each case, paying attention to the factual reality, with common sense and consideration. An adequate cause will be one that, according to the normal course of things and the common experience of life, proves to be the most suitable to generate the event. … It should be noted that the expression 'direct and immediate effect' does not indicate the cause chronologically more linked to the event, temporally closer, but rather the one that was the most direct, the most determining according to the natural and ordinary course of things. Often the cause temporally closest to the event is not the most determinant, in which case it should be disregarded, because it is a mere concause.”
“The concept of causation has traditionally been established on the basis of a naturalistic conception, inspired by natural laws, which does not appear to be the most appropriate, because although the legal system is open to receiving subsidies from the natural sciences, the concept of cause and, consequently, the very definition of causal link are eminently legal-normative notions. … … an adequate cause is the fact that demonstrates the best aptitude or greatest suitability for causing a harmful result, presenting the occurrence of a certain harmful result as a normal consequence and probable effect. … The practical problem is that this concept of adequate cause creates difficulties when the fact in question is the result of a complex causal process, presenting a multiplicity of possible causes, making it difficult to establish which of them would be the most adequate. … Other criticism levelled at the Adequate causality theory is the difficulty it presents in solving the problem of interrupting the causal link, since it would not have a satisfactory explanation when the interrupting factor is a fact not attributable to the person responsible, giving rise to the development of the theory of direct or immediate damages. … The core of the theory lies in establishing the notion of "necessary causation" or "necessity of the cause", which is particularly relevant in complex causal procedures in which more than one series of causes concur. The normal course of the causal link is diverted by the appearance of a new factor, which ends up leading to the harmful result, and this circumstance is qualified as an "extraneous cause", breaking the "link of necessity between the cause and the effect". The important thing is that the direct and immediate cause is not necessarily the closest, and the distance is not temporal, but logical. In Brazilian case law, the theory of direct and immediate damage was enshrined in a Supreme Federal Court (STF) ruling by Justice Moreira Alves, recognising it as the theory adopted in our legal system to explain the causal link, eliminating the drawbacks of the other theories (equivalence of conditions and adequate causality)… … I personally believe that the theory that best explains the causal link, in terms of Civil liability, is that of adequate causality, which does not rule out the practical usefulness of the other theories, because the verification of the facts that can be considered causes of a certain harmful event, before being a theoretical problem, is a practical objection, where all its difficulties lie. Theories are nothing more than tools at the disposal of legal practitioners, and the activity of the judge can be compared to that of a doctor who, in order to deal with a particular illness presented by his patient, can rely on more than one alternative treatment without any of the possible techniques proving to be wrong. It is enough to note the possibility of combining the theories in legal practice, as already mentioned, which is aimed at solving concrete problems, which basically consist of establishing whether a certain fact can be considered the cause of a certain harmful event.”
“The causal link as an assumption of civil liability is better assessed, in the legal-normative plan, according to the theory of adequate causality, in which the occurrence of a certain fact makes the occurrence of the result probable.”
“The causal link is an assumption of liability, whether strict or fault-based, and its measurement, within the scope of civil law, is carried out based on the provisions of article 403 of the Civil Code (CC), according to which the recoverable or compensable losses are those that arise directly and immediately from its triggering event. Indeed, theories were developed to better elucidate the aforementioned precept, having the national civil law, adopted, primarily, the theories of adequate causality and direct and immediate damage, whose similarities are very accentuated, since they only consider the causal link to exist when the damage is a necessary and/or adequate effect of a cause (action or omission) …”
“A controlling shareholder is defined as an individual or a legal entity, or a group of individuals or legal entities bound by a voting agreement or under common control, which: (a) possesses rights which permanently assure it a majority of votes in resolutions of general meetings and the power to elect a majority of the corporation officers; and (b) in practice uses its power to direct the corporate activities and to guide the operations of the organs of the corporation. Sole paragraph. The controlling shareholder must use its controlling power with the aim of making the company achieve its object and fulfil its social function, and has duties and responsibilities towards the other shareholders of the company, those who work in it, and the community in which it operates, whose rights and interests must be loyally respected and heeded.”
“A controlling shareholder shall be liable for any damage caused by acts performed with abuse of power. 1. An abuse of power may take any of the following forms: (a) guiding the corporation towards purposes unrelated to its corporate object or harmful to national interests … … (g) …to approve, or cause to be approved, irregular accounts rendered by managers (officers and directors) as a personal favour, or to fail to investigate a complaint which he knows, or should know, to be well founded, or which gives grounds for a reasonable suspicion of irregularity. … 3. The controlling shareholder who holds the position of manager or fiscal council member also has the duties and responsibilities specific to the position.”
“A controlled company is one in which the controlling company, directly or through other controlled companies, holds shareholder rights that permanently assure it a preponderance in corporate resolutions and the power to elect the majority of the management.”
“A controlling company shall be obliged to compensate any damage it may cause to a controlled company by any acts infringing the provisions of articles 116 and 117. 1. Proceedings for compensation may be brought by: (a) shareholders representing five per cent (5%) or more the capital; (b) any shareholder, provided he guarantees payment of court costs and legal costs in the event of the action being dismissed.”
“the Brazilian legal system admits the existence of complex control structures, which unfold in successive degrees of the corporate chain until reaching, at its top, the person or group of people who effectively hold the political power to determine the direction of the company.”
“… the imputation of responsibility for the violation of articles 116 and 117 of Brazilian Corporate Law, is subject to the provisions of article 246 of the same provision. … Articles 116 and 117 of Brazilian Corporate Law, authorise the filing of an action by the controlled company against the controlling company; the effect of the respective granting is reflected directly on the controlled company, and only indirectly on its shareholders.”
“Perform flow analyses considering partial/total clogging of the internal drainage system.”
“Q. And so this was a significant structural alteration which had the potential to reduce stability, and would you expect, in those circumstances, to see a proper design for a change to the alignment which had those consequences or those potential consequences? A. I would expect to see someone knowledgeable in stability to have assessed the potential impact of this on the stability of the Dam. Q. And have you seen amongst the documentation anything approaching that sort of analysis? A. No. … Q. Indeed no one has come up with any proper engineering justification, have they, for the absence of a design? A. Not to my knowledge. Q. Is it fair to say also that no responsible mine owner could justify the continuation of their operations without there being a proper design and stability analysis which took account of the realignment? A. You would expect to see that, yes -- sorry, from a technical standpoint, you would expect to see that…”
“I have been involved in dam audits for Samarco since the 1990's. Initially at the request of BHP and for the past 10 years at the request of Samarco. These were individual independent audits, and were done generally once or twice a year depending on the construction activities. For all but the last two years almost all of the dam engineering was done by Pimenta de Avila Consultoria, a very competent tailings dam consulting/engineering company. There was continuity and engineering memory in the consulting design services. During the years they have increased the size and competency of their internal Geotechnical Department and started branching out by doing some of the engineering and construction supervision themselves and using a mix of consultants - often not well coordinated, and there is a material loss of continuity and engineering memory. The Geotechnical Department is enthusiastic and well versed in the Samarco specific structures but lack experience in dam and tailings engineering generally. 4 years ago I recommended they establish a Review Board to enable the frequency of review to be increased. They did this (while I continued as an independent 'auditor') but the Review Board was poorly used, and I found them ineffectual. Two years ago they asked me to join the Review Board and I agreed. Dr Angela Kupper is the Chair person for the Review Board. She is from AMEC in Edmonton - originally from Brazil, but North American trained and experienced PhD from the Morgenstern school - and very competent. Paulo Abrau - is a Review Board member and a competent all round tailings engineer. The other two members are Waldyr, a professor of soil mechanics from U of Oro Preto, good theoretical soil mechanic, but limited engineering design and construction experience and Rui Mori, a practical geotechnical construction specialist who, in my opinion, has not maintained his theoretical understanding of soil mechanics. Working together the Review Board should be effective. Recently the Samarco management has had a tendency to change pre-planned meeting dates at short notice and I and Angela have had difficulty meeting their revised schedules. Our itineraries are established many months ahead. The geotechnical engineering structures at Samarco are complex both for both design and operational considerations. While they have done much to try to maintain adequate tailings containment facilities, Samarco has consistently deferred actions to provide or implement contingency and redundancy measures to ensure that they have capacity for continued tailings storage in the event of missing construction deadlines, or unexpected behaviour from tailings containment structures. They have pushed the dams to limits of operating tolerances that are beyond what I consider appropriate. And continue to do so. Because of Samarco schedule changes, I was not able to attend the most recent Review Board Meeting. Angela was also not able to attend. With this background you can decide if it is appropriate that I perform an 'independent' review of the dams. I will send you by separate email an introduction to Dr. Vinod Garga an Geotechnical engineer with Dam and Tailings dam experience who spends time in both Brazil and Vancouver and consults in English and Portuguese in both countries.”
“For those instances where SAMARCO may decide not to follow-up with any of the recommendations of the Independent Tailings Review Board (ITRB), the reasons for such decision should be justified and documented.”
“I am concerned that Samarco does not appear to be "managing" these facilities. It just seems to "operate" them and 'what happens happens' - without any effort to anticipate problems (eg; blockages in the decant water system) or to make sure that past mistakes are not repeated (eg: the QC failures in the embankment drainage systems). This is the key observation which we should make in our audit Findings and Asset Integrity overview - because it is only by Management changing that way of working that further (and different) problems will be avoided. Otherwise, they merely fix-up the problems which Audit finds, which is necessarily a reactive and post facto process. … I'm am getting the feeling - informed by your Findings and Alan Robertson's email before the audit - that we should consider an audit Finding about the ineffectiveness of that Review Committee - based on its apparent lack of effective action on the decant and drainage QC matters, the frequency of meetings, the last night changes which prevent all members attending, etc. That Review Committee is a critical control for the shareholders (ie: BHP Billiton and Vale) in assuring that Samarco is managing the risks in these TSFs to tolerable levels. … My preliminary view is that each of the three items which you have identified is a P2. If the evidence is there for a Finding on the TSF Review Committee as well, then that will also be at least a P2. The process rating is going to be at least "requires some improvement" and may be "requires significant improvement".”
“requires some improvement.”
“MRCA requires some improvement.”
“Samarco did a rupture simulation in [November 2013] but the results has not reported yet. The rupture model need be updated according to the level of the [tailings] dams and Santarém water dam. Need some improvement [regarding] the evacuation plan and diagrams for Bento Rodrigues. Samarco is waiting [for] the best time to do an evacuation simulation in [relation to] the municipality.”
“Need some improvement in the evacuation plan for Bento Rodrigues and an update of the rupture simulation for all dams.”
“For his controls, there are no comments on the tests and no attachments and I have included screen prints for all CET’s within the attached document. … Incident Response o Control design raised no issues and the resource requirement are available for all conditions across normal operation, shut-down and mainly in emergency situations. o Control Effectiveness was rated as Pass, however there was noted some improvement in the evacuation plan for Bento Rodrigues and a update of the rupture simulation for all dams (BA - Given the former remediation plan and known issues with this, I feel this control should probably be fail / deficient and a remediation raised and addressed. However, this can still be raised at the risk level if the risk remains Requires Some Improvement).”
“I think the ratings reflect the current understanding of the controls and overall risk assessment of the Dam, both from a Samarco and BHP perspective. I believe the BHP rating of 'Requires Some Improvement' would be appropriate, with ongoing remediation's and work surrounding the Emergency Action plans are still required going forward. I think the Incident Response control would lend itself to a Fail (it was rated as Pass), which generally corresponds to the results from Samarco's MRCA and the general understanding within BHP.”
“Emergency Plans for the Dams and for operations are in place. Gap in Emergency plans for evacuation of Bento Rodrigues, the Community which is downstream of the dams. The Tactical Response Plans have been done involving Samarco’s operation team and contractors. People from Bento Rodrigues, the community that is downstream of the main dams, were not involved.”
“The process to assess MFL and RRR was based on the output of the Samarco assessment of MFL and RRR and did not include a formal process to assess risks in a BHP Billiton context to evaluate the BHP impact. It should be noted that Group RM identified several gaps in Samarco's critical control effectiveness assessments and RRR calculations during the internal audit conducted in August 2015. A governance structure for the Samarco Joint Venture was clearly defined by the Joint Venture Agreement and it was well established. The governance structure included several committees and forums to oversee the risks associated with Samarco's activities. Iron Ore Brazil participates in the committees and forums and it was actively involved in several governance activities, such as: reviewing Samarco's material risks, verifying Samarco's critical controls, participating in Samarco's risk reduction project reviews and participating in Samarco's significant incidents investigations (ICAMs). On review of the two material risks selected for verification, "Multiple Fatalities" and "Critical Failure of the Tailings Dams", it was noted that critical controls did not fully reflect these governance activities and the role of the Iron Ore Brazil team. Instead the design and operating criteria of some of the critical controls were defined by activities performed by Samarco. Therefore, Iron Ore Brazil could not directly mitigate those risks. A specific critical control was common to the all five material risks, "Risk Management Process," which referred to the effectiveness of the Samarco's risk management process to prevent Samarco's material risks. Samarco and Iron Ore Brazil assessed this control as adequate; however the audit of Samarco revealed that the risk management process at Samarco required some improvement. Group RM recommends that a formal process to identify the risks associated with the Joint Venture is implemented (potentially linked to the 5Y Plan), and a review of the critical controls is conducted to ensure that they clearly reflect the governance role performed by the Iron Ore Brazil team.”
“2.1 The annual critical control effectiveness was conducted using a method designed by Samarco based on detailed calculations. The formula used not always represented the effectiveness the individual control. Furthermore, the method defined by Samarco to assess the overall material risk level did not account for additional analysis to evaluate individual critical control scores. Evidence was found where controls had been rated below 65% or inadequate, however it was not clear how these scores were reflected in the overall material risk assessment. 2.2 For the six material risks sampled, the RRR was calculated using the most likely scenario which was different to the plausible worst case scenario, however for 4 material risks the selection of different scenario resulted in a lower severity. There was no process to ensure that the scenario selected for RRR calculation represented the higher overall RRR for all events with 3 different scenarios for MFL and RRR. Verbal discussions with management indicated that there was a perception that the reduction in severity from MFL to RRR was due to the controls, but it was confirmed that some of the difference is accounted for [by] selection of different event/scenario.”
“The method for defining material risk events and assigning the MFL and RRR may lead to incorrect assignment of RRR or incorrect perspective of adequacy of controls in place to reduce severity. This may result in lack of management action or intervention on an inadequately controlled risk.”
“Q. So can you confirm how BHP would calculate the RRR? A. Yes, BHP would establish the plausible worst-case scenario for a risk event, would apply the controls of that risk assessment and, based on the actual assessment outcomes, will determine likelihood of that event happening. … Q. So the RRR required consideration of the highest expected impact associated with the risk event, assuming mitigating controls in place for that risk were reasonably effective? A. Correct.” … A. Correct.”
“Risk assessment: The process to assess MFL and RRR was based on the output of the Samarco assessment of MFL and RRR, and did not include a formal process to assess risks in a BHP Billiton context to evaluate the BHP impact. BHP Billiton Iron Ore Brazil aggregated Samarco risks into two material risks at BHP Billiton level, 'Multiple fatalities' and 'Production loss'. For these 2 material risks, the method used by to determine MFL and RRR was to select the highest MFL and RRR of the aggregated risks, however for 5 risks loaded into GRC it was found that the highest MFL or RRR were not selected. For example, - "Multiple fatalities" material risk MLF was assessed as level 5 which was inconsistent with the level 6 Samarco's Explosion of starch silos material risk (33 fatalities). - "Production Interruption" material risk MFL was assessed as level 5 ($716M ), however it was not clear how this had been calculated. - In both cases, there were Samarco material risks with RRR 90 and 100, while the RRR of BHP Billiton's material risks was 30. Additionally, there was no description in GRC for the basis of the MFL and RRR. Risk training: There was no formal training in the last 2 years for BHP Billiton risk or control owners that could be evidenced. Evidence was provided of the visits from Iron Ore, but there was no clarity about the training being delivered. Inadequate application of the Risk Management Process may lead to incomplete assessment and management of the risk for BHP Billiton associated with the Samarco Joint Venture.”
“Actions (2012): Carry out liquefaction potential studies (IN THE INITIAL PHASE). Action (2013): conclude liquefaction studies to support the analyses.”
“Actions (2012): Carry out liquefaction potential studies (IN THE INITIAL PHASE). Action (2013): conclude liquefaction studies to support the analyses. Comment (2014) Complement the studies to increase sample representativeness or conduct new studies if necessary due to changes in the tailings.”
“Global rupture (in non-drained conditions) with discharge of water and sediment reaching the Santarém dam reservoir and the area downstream.”
“Actions (2012): Conduct liquefaction potential studies (IN THE INITIAL PHASE). Action (2013): conclude liquefaction studies to support analysis. Comment (2014): Complement the studies to increase the representativeness of the samples or conduct new studies if necessary due to changes in the tailings. (2014/02) Prioritise internal abutment drainage and axis return.”
“An annual FMEA Analysis is completed and all significant actions implemented / gaps closed within an appropriate basis. Risk analysis commensurate with geotechnical/geological complexity demonstrating preventative controls linked to causes and mitigating controls liked to impacts. Identification of leading indicators of failure or uncontrolled release and controls required to manage all potential issues. FMEA informs changes to the operating, maintenance and inspection/monitoring procedures. BHPB monitoring of the critical control includes: 1) Direct monitoring directly related to the Material Risk (ratings, critical control performance, action tracking, event monitoring) 2) Oversight of key critical control performance through Samarco responsible risk and critical control owners.”
“The design safety factors for the slopes and drains as presented in the original report are considered adequate. It is recommended that more samples be taken and tests carried out to confirm the design parameters and to assess the variability of the foundation material, especially downstream of Dike 1. Due to a construction problem with the underdrain drain of Dike 1, the Fundão Dam was in the process of being restored at the time of the visit on1 December 2009 . The drain had been sealed upstream and work was continuing in the area between Dike 1 and Dike 1A, which was built as part of the restoration project. The project was revised to include contingency drains on the abutments and a blanket drain at a higher elevation. We congratulate SAMARCO on the way it reacted to the problems that occurred in the construction of Dike 1 and on the decisions taken. The tailings disposal between Dikes 1 and 1A will not benefit from underdrain (as in the Germano Dam and Germano Pit), which will lead to a lower density of the tailings deposit and therefore a lower shear strength. This aspect should be taken into account when re-evaluating the design of Dike 1 after restoration. Lateral tailings disposal with steep beach formation is recommended to improve drainage and verify density, strength and liquefaction potential. These parameters should be determined in situ once the sandy tailings have been dumped. The project should be reviewed with these parameters and modified, if necessary, before proceeding.”
“The manual piezometers are currently read once per month. This was not sufficiently frequent to detect the blocked underdrain and change in phreatic conditions that resulted in the recent seepage event through the dam wall. Cause: Site personnel did not realize how quickly the phreatic conditions can change near the wall of the Tailings Dam. An undetected change in the phreatic level in the embankment could cause seepage and channelling through or under the wall. In the worst case, a section of the embankment may fail, resulting in the discharge of tailings into the environment downstream of the dam. The manual piezometers should be read on a weekly basis until the proposed system of electronic reading via radio telemetry has been approved, installed and commissioned.”
“Construction of tailings dams by the upstream method (especially with relatively small compacted fill elements) has a poor track record internationally with several examples of problems and failures all over the world. Due to the high risk associated with this construction technique, it is becoming increasingly difficult to justify such projects nowadays.”
“The slime zone will be adjacent to the ‘sandy tailings beach’ as it advances in the upstream direction. The slime must have high pore pressure and low shear resistance. The resulting geometry may not generate adequate safety factors regarding the risk of instability. “The history of slime (quick elevation) must be modelled to allow for determination of pressures and pore-pressure dissipation indices, and to estimate resistance indices.”
“The risk profile of the tailings dams currently observed at Samarco is the highest risk profile among the mining units of comparable size known to the rapporteur. It far exceeds the limits prescribed by industry standards. There is a need to introduce changes in the culture of “just-in-time management and programming” of processes that present high variability and behavioural risks that diverge from forecasts. The geotechnical structures and tailings dams of Samarco’s projects fall into this category. Samarco is aware of this need and has even organised a Tailings Committee and an Independent Tailings Systems Assessment Board (ITRB), partly to address this need. … Samarco has made a number of changes in the personnel area and in the management area, in order to ensure that the supervision work is carried out by duly appointed employees or staff. However, some aspects related to the continuity of the supervision structure, the communication of essential information and the carrying out of investigations, engineering projects and works, with adequate deadlines or contingency margins, will have to be improved if Samarco is to effectively reduce its risk profile regarding the handling and storage of tailings.”
“With the foam that forms on the sand tailings pond water it is difficult to determine the width of the beach. It is recommended that the location of the beach limit be determined by whatever practical method that may be applicable, and that soundings be taken of the pond bottom to determine the depth of water in the pond and pond bottom profile. This information is important to understanding the manner in which the slimes and sands are intermixing and the pond bottom behaviour.”
“No beach slope has formed at the entry point. It is apparent that with the rate of slimes deposition and the low permeability of the slimes that any settled slimes maintain high pore pressures and very low shear strength resulting in sustained liquefaction and failure likely to result in an essentially flat pond bottom. Determination of the topography of this pond bottom and the depth of the 'water cap' is important in order to be able to model the deposition and determine at what level at which to set the stoplogs in the decants to minimize the pond size while minimizing the amount of solids in decant water. These two optimizations are in conflict.”
“A "bow tie" risk analyses approach was proposed by Samarco for the risk assessment of the tailings facilities. This approach is based on listing potential causes of incidents with their consequences to define the risks and on identifying preventative measures for the causes and corrective measures for the consequences to manage those risks. The ITRB considers that while this approach is suitable for operational risks and events with relatively high frequency of occurrence and relatively limited or moderate consequences of failure, it is not suited for risk analyses of dams and complex dam systems where (i) often there aren't simple cause-effect relationships and (ii) the probability of failure is very low, the consequences of failure are extreme and the life of the structure is very long. Failure Mode and Effects Analysis (FMEA) is a more suited approach to evaluate the risks of such systems and to prioritize adequate actions.”
“Thus, the structure meets the stability conditions considering potential critical ruptures in the downstream slope. However, due to the uncertainty regarding the resistance parameters of the slime located below the base of the pile caps (upstream slope), it is not possible to ensure that the coefficients are in accordance with the minimum safety factors recommended by the ABNT NBR 13028 Standard for the downstream slope.”
“Saturated, soft, or loosely compacted sands are susceptible to liquefaction. This statement is valid for both dynamic requests and static load conditions. Since the tailings are released hydraulically, the tendency is for it to present itself with low relative compactness. Therefore, it is important to study the potential for liquefaction of the tailings under saturated conditions and what are the necessary measures to avoid and/or live with the occurrence of the phenomenon in adequate and safe conditions. There are several approaches to evaluate the potential for sand liquefaction, including sandy tailings from mining processes, but basically there are two lines being followed: one that uses results from laboratory tests and the other, results from field tests. … In principle, it is planned to use the methodology proposed by Olson (2001) for the evaluation of the liquefaction potential of soils, which is based on correlations between shear strength ratios and penetration strengths normalized from the results of field tests (SPT and/or CPT). These correlations were established based on retro-analyses of several historical events of liquefaction flow ruptures induced by cyclic and static loads. … For soils that show a clear tendency to contraction from the previous analysis, the potential or not to establish a liquefaction trigger in the investigated area is then analyzed. In terms of liquefaction flows under static stresses, this analysis basically consists of evaluating whether or not the acting static shear stresses exceed the peak shear strength of soils susceptible to liquefaction. The proposed methodology for the analysis of the liquefaction trigger (for static and/or dynamic loads) is based on the following procedures (Olson, 2001 and 2006) … … If the evaluation proposed here indicates a risk of liquefaction for the Fundão Dam Raising deposit, project measures will be taken to avoid a rupture due to this phenomenon, for example: greater rigor in the limitation of the tailings beach, modification of slopes, etc. until an expected equilibrium situation is reached for the deposit.”
“The Board reiterates the request made in the last ITRB report to present a compilation of all the geotechnical tests already carried out on materials in Samarco's area, given their usefulness and importance to all Samarco's current and future projects in this area. • With the raising of the Germano/Fundão dams, the Board stresses the importance of obtaining shear strength and permeability data for both the foundation materials and the tailings for high values of confining stress, even if it is necessary to use specialized laboratories abroad. • At future Board meetings all existing information (e.g. drilling logs, SPT results) should be available for consultation, including field information even if it is not processed.”
“For the Fundão Dam, the company DAM presented a model in which the phreatic line runs parallel to the downstream slope, below the new blanket drain, at El. 887 m, with a factor of safety of 1.42. This modelling of the phreatic level parallel to the slope indicates low and undesirable factors of safety for other scenarios. For the Fundão Dam, the analyses conducted by VOGBR indicate that in any modelling of the phreatic level, the factors of safety is always greater than 1.5.”
“Attached, the stability analyses carried out considering the scenarios before and after the construction of the balance berm. It turns out that using the post-peak parameters, the berm will not be enough to circumvent the problem. I'm going to analyze what the proper geometry is for the structure to have a safety factor greater than or equal to 1.5.”
“You can use geometry that results in Safety Factor - F.S.> 1.1 in the post-liquefaction condition and F.S. >1.5 in the peak condition. I think this condition will be met with a berm whose geometry has a medium slope (from the crest to the toe, from 1:6 to 1:8. Please keep me posted about any news and we exchange information by Email. If necessary, we schedule a meeting.”
“When the action originates from a fact that must be ascertained in the criminal court, the prescription period will not run before the respective final judgment.”
“If cognizance of the merits depends on checking the existence of a criminal fact, the judge may determine the stay of the proceedings until the criminal courts issue a ruling.”
“The rule in Article 200 of the Civil Code, which prevents the prescription from running out before the criminal action is resolved, is situated in this context. The purpose of this rule is to avoid the possibility of contradictory solutions between the civil and criminal courts, especially when the outcome of the criminal case is decisive for the outcome of the civil case. For this reason, the victim is allowed to wait for the criminal case to be resolved and only then file a civil claim for compensation. In any case, it is essential that criminal proceedings are underway or, at least, that a police enquiry is being carried out until it is closed.”
“[14] … it must be emphasized that every crime is a “fact that must be investigated in the criminal court”, with the sole exception of those in which, if a complaint or legal representation is required, there is no initiative on the part of the individual to investigate it within the prescription period of 6 (six) months … [15] In the light of these premises, it is concluded that article 200 of Civil Code/02 does not offend the theory of actio nata, nor the independence of the civil and criminal spheres. On the contrary, its incidence adjusts to the hypotheses in which, once the three-year prescription period has started elapsing for the exercise of the action for damages, the criminal procedure to investigate the same fact begins, in the meantime, giving rise to the suspension of the prescription until the final criminal lower court judgment. [16] The text of the law does not require, for the special cause of suspension of prescription to apply, that the fact – i.e. materiality and authorship – necessarily depends on verification in the criminal sphere. Because, if so, article 110 of the Civil Procedure Code provides the possibility of staying the civil proceedings until the criminal court makes a decision on the matter. [17] However, if the criminal procedure is not initiated within a period of 3 (three) years, there is logically no question of suspending the prescription of the action for damages in the civil court, so that, in this case, the inertia of the party in filing the action for cognizance within that period will be punished with the denial of that claim, leaving only the possibility of executing the lower court judgment definitively rendered by the criminal court.”
“In the case of civil liability ex delicto, the exercise of the victim's subjective right to compensation for damages suffered only becomes fully viable when there is no longer any doubt about the context in which the unlawful act was committed, especially with regard to the full definition of authorship, which is usually the subject of concomitant investigation in the criminal sphere. The cause preventing the expiry of the prescription period laid down in Article 200 of the CC/2002 aims to protect victims' rights to compensation for damages arising from offences that are both civil and criminal. This is a way of mitigating the damage caused by the pending investigation by the state's criminal justice system, which is notoriously slow and cannot result in a new process of victimisation … Once a criminal investigation or criminal action has been initiated, the person who has suffered damage as a result of an act that also constitutes a criminal offence can choose to file a civil claim in advance, under Art. 935 of the CC/2002, or wait for the matter to be resolved in the criminal sphere, an alternative protected by Art. 200 of the CC/2002.”
“2. The purpose of the appeal is to determine the legality of the declaration of prescription of the claim for compensation for moral damage suffered by the appellants, considering that the same harmful event can be understood as a fact defined as a crime and, therefore, a crime, which would interrupt the prescription period, in accordance with the provisions of article 200 of CC/2002. 3. The command of article 200 of CC/02 applies when there is a harmful relationship between the civil and criminal spheres, meaning when the conduct actually originates and is also to be investigated in the criminal court, and the existence of an ongoing criminal action or at least a police investigation is sufficient. 4. It is not possible to rule out the application of article 200 of CC/2002 in cases that involve, in addition to the claim for compensation, discussions related to the existence of joint and several liability between the author of the offense and the person who is the defendant in the dispute, due to the relationship of agent.”
“1. The debate in these records revolves around whether the principle of legal certainty, benefiting the author of environmental damage in the face of government inaction, should prevail; or if the constitutional principles of protection, preservation, and restoration of the environment, which benefit the entire community, should take precedence. 2. In our legal system, the rule is the prescription of the reparatory claim. Not being subject to prescription, on the other hand, is an exception. It depends, therefore, on external factors that the legal system deems timeless. 3. Although the Constitution and ordinary laws do not specify the prescription period for the redress of environmental civil damages, with the norm being the stipulation of a time limit for compensatory claims, constitutional protection of certain values needs the recognition of claims not subject to prescription. 4. The environment must be considered a common heritage of the entire humanity, for the guarantee of its full protection, especially in relation to the future generations. All conducts of the state Government must be directed to the full internal legislative protection and adhesion to the international agreements and treaties that protect this fundamental human right of 3rd generation, to avoid harm to the community given an assignment of a certain asset (natural resource) to an individual purpose. 5. The redress of the damage to the environment is an unwaivable fundamental right, the acknowledgement of the necessity regarding the restoration the environmental damage being necessary.”
“The right to claim civil redress for environmental damage is not subject to prescription.”
“the Law sees environmental damage from two distinct aspects: a) collective environmental damage (...) and b) individual environmental damage or personal environmental damage, suffered by people and their property (...) as occurs, for example, with the contamination of a watercourse due to the transport of harmful chemicals. (...) In the first case, that is, a public civil action conveying a claim for redress of collective environmental damage (...) it is included in the list of actions not subject to prescription. (...) In the second case, that is, in the case of reflex or damage inflicted to microbes and the environment, then the prescription rules will be defined by the provisions of the Civil Code, as it has determined holders. …”
“The provisions of this Law shall govern, without prejudice to popular action, actions for liability for moral and patrimonial damage caused: I - to the environment … III - to property and rights of artistic, aesthetic, historical, tourist and landscape value; IV – to any other diffuse or collective interests; … VII – to the honour and dignity of racial, ethnic, or religious groups; VIII - to public and social heritage.”
“If an award of money is made, the compensation for the damage caused will revert to a fund managed by a Federal Council or by State Councils, which must include in their composition the Public Prosecutor’s Office and representatives of the community, and its resources will be used to restore the damaged property.”
“A consumer is any natural person or legal person who acquires or uses products or services as the final user. Sole paragraph. Groups of persons, even if they cannot be determined, who may have intervened in consumer relations will be deemed to be consumers.”
“Quality of Products and Services, Prevention and Repair of Damage.”
“For the purpose of this Section, all victims of the event are deemed consumers.”
“The right to claim redress for damages caused by a product or service fact provided for in Section II of this Chapter is subject to prescription in five years, starting the counting of the prescription time from the knowledge of the damage and its authorship.”
“In the event of individual damage resulting from the exercise of polluting business activity involving the manufacture of products for sale, it is possible, due to the characterisation of a consumer accident, to recognise the figure of the consumer by equivalence, which attracts application of the provisions of the Consumer Defence Code.”
“22. According to the case law of this Court, “those who, although not directly participating in the consumer relationship, suffer the consequences of the harmful event resulting from the external defect that goes beyond the object and causes injuries, creating a risk to their physical and mental safety, are held equivalent to consumers for legal purposes… 23. The equivalence, however, only applies in the cases of product or service liability, in which the use of the product or service is capable of generating risks to the safety of the consumer or of third parties, and may cause a harmful event known as ‘consumer accident’ … … 28. … we conclude that, for the existence of a consumer accident, an external defect needs to occur that causes damage, creating a risk to the physical or mental safety of the consumer, even if by equivalence. 29. Furthermore, as expressly provided by law, the consumer accident does not result only from the damage caused by the product itself, but can also result from injury arising from the production process itself, i.e., from the design, manufacture, construction, assembly, formulas, handling, etc. 30. We note, in this context, that the CDC adopted the enterprise risk theory, according to which “anyone who is willing to exercise any activity in the consumer market has the duty to be liable for any flaws or defects in the goods and services provided, regardless of fault” (CAVALIERI FILHO, Sergio. Programa de responsabilidade civil, 13th reviewed and expanded edition. São Paulo: Atlas, 2019, page 603). 31. In terms of case law, this Superior Court admits, under the terms of article 17 of the CDC, the existence of the figure of the consumer by equivalence in the events of environmental damage… 32. Therefore, contrary to what the defendant maintains, in the event of individual damage resulting from the exercise of a polluting business activity intended for the manufacture of products for sale, it is possible, due to the characterization of the consumer accident, to recognize the figure of consumer by equivalence, which attracts application of the provisions of the Consumer Defence Code.”
“…the case law of this Superior Court, which, in cases similar to the one at hand (i.e. environmental damage resulting from the exploitation of business activity), established an understanding that it is possible, due to the characterisation of the consumer accident, to recognise consumer by equivalence (consumer bystander), which entails the application of the provisions of the Consumer Defence Code (Special Appeal 2.005.977/RS, Reporting Justice NANCY ANDRIGHI, Second Section, trial date28 September 2022 ). It is not unknown that consumer defence law, when dealing with product and service liability, expanded the concept to encompass all victims of a harmful event, creating the notion of a consumer by equivalence (bystander), as provided for in article 17 of the Consumer Defence Code. Regarding who the bystander consumer is, Superior Court of Justice’s case law has settled that one who, although not having directly participated in the consumer relationship, suffers the consequences of the harmful event resulting from an external defect that goes beyond its purpose and causes harm generating a risk to their physical and psychological safety, is equated to a consumer for legal purposes (Internal Interlocutory Appeal in Special Appeal No. 1.000.329/SC, Fourth Panel, trial date10 August 2010 , Published on19 August 2010 ). In other words, to characterise a consumer accident, an external defect must occur that causes damage, generating a risk to the consumer’s physical or psychological safety, albeit by equivalence.”
“21. … it is concluded that, in order to characterise a consumer accident, it is necessary to have an external defect that causes damage, generating a risk to the physical or psychological safety of the consumer, even if by equivalence. 22. In addition, with regard to the fact of the product, it is noted that the consumer accident, according to an express legal provision (article 12 of the CDC), does not result only from the damage caused by the product itself, but may also result from injury from the production process itself, that is, design, manufacturing, construction, assembling, formulas, handling, etc. 23. Likewise, with regard to the fact of the service, it is necessary to conclude that the consumer accident, according to article 14 of the CDC, arises from the damage caused by the provision of the service itself. 24. It should be noted, in this context, that the CDC adopted the theory of enterprise risk, according to which “anyone who is willing to carry out any activity in the consumer market has the duty to answer for any flaws or defects in the goods and services provided, regardless of fault” (CAVALIERI FILHO, Sergio. Programa de responsabilidade civil. 13. Extended and reviewed edition São Paulo: Atlas, 2019, p. 603). 25. In the case law context, this Superior Court admits, under the terms of article 17 of the CDC, the existence of the figure of the consumer by equivalence in the event of environmental damage… ”
“40. It should be noted, however, that the damages alleged by the claimants derive from the process of production of electricity as a whole, that is, from the activity carried out by the appellant itself, which, according to the content of arts. 12 and 14 of the CDC, is sufficient to attract the normative discipline of liability for the fact of the product or service and the characterisation of the figure of the consumer by equivalence. 41. It should not be forgotten, in this context, that the business activity carried out by the defendants, in kind, is intended for the production of a true product, since, under the terms of item I, of article 83 of the CC/2002, the energies that have economic value have the legal nature of movable property. 42. In addition, it is of little or no importance to inquire whether the energy produced is used by the defendants themselves, whether it is distributed to the citizen as an end user or whether it is delivered to an entity of the Government for subsequent distribution. This is because, in any case, it is observed that the appellees exploit the hydroelectric complex for the benefit of the business activity carried out by them. 43. Thus, in the event of individual damages resulting from the exercise of an activity of operation of hydropower potential causing environmental impact, it is possible, due to the characterisation of the consumer accident, the recognition of the figure of the consumer by equivalence, which attracts the incidence of the provisions of the Consumer Protection Code.”
“In effect, the Superior Court of Justice has a settled position that it is possible to apply the Consumer Defence Code in the case of environmental damage to those who are not part of the consumption chain, in view of the provisions of article 17 of the Consumer Defence Code, which establishes the application of the consumerist microsystem to all victims of the harmful event, considered as bystanders. … … considering what is established in article 17 of the Consumer Defence Code, all innocent victims of consumption are considered consumers by equivalence or bystanders. In this case, the alleged environmental/noise pollution arises from the defendant’s productive activity, which, even though is not directly related to consumption, must be considered as such for protection purposes. … In other words, if there is a consumption accident - and, in this case, the actual environmental damage caused by pollution -, the appellee will be characterised as a consumer by equivalence.”
“The Federal, State and Municipal debts, as well as any right or action against the Federal, State or Municipal Treasury, of whichever nature are subject to a five-years limitation period that begins to run from the date of the act or fact of which they originated.”
“Article 2. Decree No. 20.910, of6 January 1932 , which regulates the five-year prescription period, includes the passive debts of independent government agency or para-statal entities and bodies, created by law and maintained through taxes, fees, or any other contributions, required by federal, state, or municipal law, as well as any and all rights and claims against them.”
“There shall be no deterioration of rights and intentions of the affected people, based on the statute of limitations, on5 November 2018 .”
“The prescription is correctly ruled out, which, when applicable, shall have, as initial date, the actual occurrence and identification of the extent of the injury (principle of actio nata, according to the Superior Court of Justice), especially in the field of protecting people’s health and other rights of personality, as well as future damage, which appear in a deferred, protracted, or prolonged manner; which conditions often require sophisticated and expensive laboratory or field examinations. The application of insecticide or use of a toxic substance does not characterise, when viewed in isolation, the harmful event. In health-environmental civil liability, the damage only occurs, in theory, with the emergence and identification of the alleged injuries or pathologies. Before that, there is no right to claim compensation per se and, as a consequence, no prescription applies.”
“…in case of reparation of individual rights and interests, even if caused by environmental damage - that is, of an individual environmental damage - the period of limitation set forth in the Civil Code is applicable. … “For the claim to be born, it is not necessary to presuppose that the holder of the right knows the existence of the right, or its nature, or the validity, or effectiveness, or the existence of the arising claim, or its extension in quality, quantity, time and place of provision, or other modality, or whoever is obligated, or who knows the holder who can exercise it. Therefore, in Brazilian law, the three-year prescription of the claim for compensation for an absolute unlawful act does not depend on knowing whether there was damage or who caused it ... However, in some cases, the case law of this Court has excepted this rule, in order to determine that the limitation period starts from the moment the offended party becomes aware of the unlawfulness.” … Also in an appeal involving individual environmental damage, this Superior Court of Justice used the understanding that the starting date of the prescriptive period is the date of effective awareness of the environmental damage suffered by the individual. … From the stated above, it can be preliminarily concluded that: (i) environmental damage can take the form of homogeneous individual damage or even pure individual damage; (ii) in this circumstance, the case law of this Court indicates that the prescription for the claim for compensation for the loss has as its initial term the date of unequivocal knowledge of the damage by the offended part; and (iii) the filing of a collective claim, in accordance with the current legal system, causes the interruption of the prescription for individual claims.”
“Prescription is lifted, not because the environmental action is not subject to prescription, but because permanent damage extends the prescription period as long as it exists. It is a question of recognising the nature of the damage. Anyone who, over the years, has perpetuated environmental damage in the face of the existence of a Permanent Preservation Area (APP), if the facts are duly proven, will be obliged to cease the damage and answer for the respective compensation. In this case, the actio nata is not overlooked, since it is common ground in this Superior Court that the prescription period for an action for damages begins when the injury and its effects are realised. … In this case, the damage has been perpetuated, recreating or renewing every day the legal claim of the holder of the offended right. There is no need to talk about statutes of limitation in environmental actions arising from ongoing damage, at least as long as the environmental damage is perpetuated.”
“ln declarations of will, more heed shall be given to the intention revealed therein than to the literal meaning of the text.”
“Any discharge, which can always be given by a private instrument, will indicate the amount and the type of debt discharged, the name of the debtor or anyone having paid on their behalf, and the time and place of payment, along with the signature of the creditor or their representative. Sole paragraph. Even without the requirements established in this article, a discharge shall be valid if from its terms or the circumstances it can be concluded that the debt has been paid.”
“When there are ambiguous or contradictory clauses in a contract of adhesion, the interpretation most favourable to the adhering party shall be adopted.”
“It is licit for interested parties to prevent or terminate litigation through mutual concessions.”
“A settlement/transaction is interpreted restrictively. Rights are not transmitted by a settlement/transaction, but merely declared or acknowledged.”
“For the purposes of this Chapter and the following one, all persons, determinable or not, exposed to the practices contemplated therein, are deemed consumers.”
“Contracts that regulate consumer relations shall not bind the consumers, if they are not given the opportunity of having prior knowledge of its content, or if the respective instruments are written in a way that it is difficult to understand their meaning and scope.”
“Contractual clauses shall be interpreted in a manner most favourable to consumers.”
“Among others, the following contractual clauses relating to the supply of goods and services are null and void, if they: I. make it impossible, exempt, or mitigate the supplier's liability for any nature of defects in their products and services or entail a waiver or relinquishment of any rights—in consumer relationships between a supplier and a legal person consumer, compensation may be limited in justifiable situations; … III. transfer liabilities to third parties; IV. stipulate obligations considered unfair or abusive that put the consumer at an exacerbated disadvantage or that are incompatible with good faith or equity … ”
“The main characteristic of an adhesion contract is that it lacks a pre-negotiation phase, since it is drawn up unilaterally, and the other contracting party, who is the adherent, is only responsible for accepting the standardised clauses contained therein, so that they are not guaranteed interference in the content of the agreement.”
“As previously informed, the Judge of the 12th Federal Court of Belo Horizonte, in the judicial decision of February 12, 2021, issued in the records of lawsuit No. 1037382-90.2020.4.01.3800, established that the free and voluntary adhesion to the novel indemnity system implies a definitive release and covers all financial claims arising from the Collapse, with the exception - of course - of any future damages.”
“I hereby state that I agree with the terms of the judgment issued by the Judge of the 12th Lower Federal Civil and Agricultural Court of the Minas Gerais Judiciary Section in the records of the lawsuit No. 1037382-90.2020.4.01.3800, and that I wish to adhere to the novel indemnity system for the definitive reparation of all damages resulting from the Fundão Dam collapse. I hereby further state that I am aware that, under the terms of the aforementioned court decision, the adhesion to the novel indemnity system implies a definitive release and covers all financial claims arising from the Collapse, with the exception - evidently - of any future damages.”
“I, my heirs and/or successors in title, on my behalf, hereby grant to Renova Foundation the widest, complete, irrevocable, and irreversible release of liability for all damages, losses, casualties and/or claims related to the Fundão Dam collapse, not to make any further claims, either financial or in terms of obligations of any kind, judicial or extrajudicial, INCLUDING RECEIPT OF EMERGENCY FINANCIAL AID (AFE), WHETHER PRESENT OR FUTURE.”
“The Claimant and their respective attorney hereby waive and renounce the right on which any and all lawsuits filed by the Claimant and their respective attorney in any court or before any foreign jurisdiction related to the Fundão Dam collapse against Renova Foundation and/or its sponsors (Samarco Mineração S.A. and its shareholders Vale S.A. and BHP Billiton Brasil Ltda.), and/or any subsidiary, affiliate, or any other company directly or indirectly related to Samarco Mineração S.A., Vale S.A. and BHP Billiton Brasil Ltda. I will instruct my legal representatives to take all necessary steps to give effect to this withdrawal/waiver. I undertake the obligation not to file, in any court or before any foreign jurisdiction, any lawsuits related to the Fundão Dam collapse.”
“I further hereby declare to be aware that, under the terms of the mentioned court decision, the entry in the new indemnity system "implies definitive settlement and covers all financial claims pursuant to the Break, except: i) possible future damages; ii) issues related to the resettlements of Bento Rodrigues, Paracatu de Baixo and Gesteira (Barra Longa), object of Priority Axis 3; iii ) issues related to cracks, structural damage and fissures on the properties, object of Priority Axis 4 and "ACP Linhares", iv) possible damage to human health, object of Priority Axis 2 and v) Emergency Financial Aid - AFE."”
“I hereby declare to be aware and agree that the indemnity agreed herein comprises a single and definitive payment related to all and any past, current and future damages, claims, and losses related to the collapse of the Fundão dam, on November 5, 2015, except for the amounts related to the Emergency Financial Aid - AFE.”
“I, my heirs and/or successors in title, on my behalf, hereby grant to Renova Foundation the widest, complete, irrevocable and irreversible release of liability for all damages, losses, casualties and/or claims related to the Fundão dam collapse, not to make any further claims, either financially or in terms of obligations of any kind, judicial or extrajudicial, EXCEPT RECEIPT OF EMERGENCY FINANCIAL AID - AFE, WHETHER PRESENT OR FUTURE.”
“The Claimant and his/her lawyer withdraw and waive the right to all and any possible suits filed by the claimant and his/her lawyer in any court or before any foreign jurisdiction related to the collapse of the Fundão Dam against Renova Foundation and/or its sponsors (Samarco Mineração S.A. and its shareholders Vale S.A. and BHP Billiton Brasil Ltda.), and/or any subsidiary, affiliate, or any other company directly or indirectly related to Samarco Mineração S.A., Vale S.A. and BHP Billiton Brasil Ltda. I will instruct my legal representatives to take all necessary measures for the effective withdrawal/waiver. I hereby undertake the obligation not to file, in any court or before any foreign jurisdiction, any lawsuits related to the collapse of the Fundão dam.”
“The purpose of this Instrument is the formalisation of a settlement regarding the payment of indemnification corresponding indemnified damage: (a) moral damage suffered by the Signatory arising from the Burst, and; (b) property damage suffered by the Signatory arising from the Burst, relating to the category(ies) of [fill out] of the PIM Eligibility Protocol, including loss of profits due to him/her by [12/31/2017 ].”
“The signatory, on his/her own behalf, and on behalf of his/her heirs and/or successors, gives Renova Foundation full irrevocable and irreversible release regarding the damage indemnified in the Settlement Instrument, so they shall make no further claims, whether in or out of court.”
“This release extends to Samarco Mineração S.A., it's shareholders Vale s.a. and BHP Billiton Brasil Ltda and their respective insurance companies, governmental entities and any of the remaining signatories of the TTAC, ending any and all judicial, extrajudicial or administrative claims related to the damage indemnified in this Settlement Instrument, in which the signatory or any entity representing him or her appears, in any way, as Plaintiff, or their heirs and successors, nothing more being due regarding the damage indemnified in this settlement instrument by these companies/entities to the Signatory, his/her attorney, his/her heirs and successors.”
“The parties themselves, their heirs and/or successors, give each other mutual, reciprocal, ample full, general, irreversible and irrevocable release, in order not to claim in or out of court, any damages related to, originating or resulting from the Collapse, with the exception of (i) any future damages that may arise as a result of the Collapse after signing this Conciliation Instrument or and (ii) any loss of profits after31 December 2017 , if the conditions for exercising the labour activity of the Signatory(ies) are not resumed or if the conditions for exercising the new productive activity replacing the previous one are not resumed.”
“This Settlement Agreement has the purpose of delivering an agreement upon the definitive payment of indemnification for all the damages suffered by the Signatory(ies) as a result of the Collapse, including all loss of profit regarding their agricultural and cattle-raising activities.”
“The Signatory(ies) by themselves, their heirs and/or successors, grant mutual, reciprocal, broad, full, general, irreversible and irrevocable release to Renova Foundation, to make no further complaints, in or out of court, regarding the damage related to, originated from or resulting from the Collapse, as described in Clause One of this Settlement.”
“The purpose of this term is the payment of indemnity for the damages suffered by the Beneficiary regarding the damages related to water supply and distribution in the city of Governador Valadares as a result of the Event, except for the hypothesis of possible future damages that may arise after signing this term.”
“After compliance with this agreement, the parties, by themselves, their heirs and/or successors will give each other full, general, irreversible and irrevocable release, with nothing else to claim in court or out of court about it regarding the related damage, originating or arising from the purpose described in the clause one of this term, except in the event of possible future damage.”
“In view of the payment agreed above, the BENEFICIARY grants the FULLEST, AMPLEST, GENERAL, RARE, IRRESTRICTED, UNRESTRICTED AND UNREVOCABLE DISCHARGE in favour of the SPONSOR (FUNDAÇÃO RENOVA), SAMARCO and its shareholders VALE S.A. and BHP BILLITON BRASIL LTDA., as well and their respective insurers, in relation to any and all property and non-property damages, including, but not limited to, loss of profits, material and moral damages and/or any other type of damage, of a punitive, exemplary, compensatory, consequential or any other nature, related to, arising from or originating from the suspension in the supply and distribution as a consequence caused by the EVENT.”
“Upon payment of the amount mentioned in item 1 above, PLAINTIFF grants to DEFENDANTS, and to all entities directly or indirectly related and/or linked to Samarco Mineração S.A., Vale S.A. and BHP Billiton Brasil Ltda., full, general, absolute, and irrevocable discharge on the subject matter to the request, valid and applicable both in Brazil and in any other jurisdiction, and PLAINTIFF shall make no further claim for the facts that gave rise to this action. Plaintiff waives any rights and claims arising from the interruption of the supply and/or quality of water, related to the Fundão dam collapse, and waives the right on which this action is based, including the right to proceed with the action and the right to appeal.”