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25 November 2013
Thirteen years after the introduction of Federal Law 9.966, which formalised the control and oversight of marine pollution in national waters and the required precautions, the government has finally enacted the National Oil Spill Contingency Plan. In so doing, it is fulfilling its commitment under the International Convention on Oil Pollution Preparedness, Response and Cooperation 1990, which was ratified by Brazil in 1998.
Following the recent re-engagement of the Brazilian exploration and production campaign in ultra-deep waters with the discovery of oil in the pre-salt area, as well as the occurrence of severe oil spills in both national and foreign waters that caused devastating environmental damages, public concern has grown over the lack of appropriate instruments and guidelines to prevent and respond to such incidents.
In response to such concerns, two days after the first production sharing tender for the exploration and production of pre-salt and strategic areas began, a plan was put in place that aimed to provide for coordinated responses by federal agencies and the private sector regarding oil spills, in order to mitigate environmental damages and avoid jeopardising public health.
According to the plan, polluters – deemed as those that directly or indirectly contribute to oil leaks (eg, operators and service providers) – must comply with several obligations. These include immediate communication and the free disposal of the equipment and technology set out in the related emergency individual plan.(1) Failure to comply with these obligations may result in administrative penalties (heavy fines and suspension of operations), notwithstanding environmental liability for recovery of the affected area and compensation to the related community (eg, fishermen) or eventual criminal investigations, which may also affect corporate directors, managers and decision makers.
Once the public authorities become aware of an accident, the National Oil Spill Detection and Response Agency (NOSDRA) – which is composed of the National Agency of Petroleum, Natural Gas and Biofuels, the National Environmental Agency and the Brazilian Navy – has the power to qualify the accident as of national concern. This will activate the National Oil Spill Contingency Plan. The level of risk and the effectiveness of any private measures already taken will be considered. However, the subjective nature of the criteria may trigger legal doubts as to how to control the qualification rendered by NOSDRA in case of challenge.
Overall, despite the general provisions established by the new plan, several dispositions – including the accepted methods to treat the leak, the types of chemical dispersant used and the possibility of using fire to burn the oil – will depend on further regulations to be issued by the various agencies and ministries involved in the response. Nevertheless, the new plan grants oil and gas installations one year in which to review their emergency individual plans and area plans in line with the new guidelines following a request by the environmental agencies.
For further information on this topic please contact Maria Alice Doria at Doria, Jacobina e Gondinho Advogados by telephone (+55 21 3523 9090), fax (+55 21 3523 9080) or email (email@example.com). The Doria, Jacobina e Gondinho Advogados website can be accessed at www.djga.com.br.
(1) A mandatory plan that must be held by all oil and gas installations, shipping, ports and terminals, determined by the environmental agency during the environmental permitting procedure for such facilities.
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Maria Alice Doria