Conflicting Narratives On The Road To Tailings Reform

Lindsay Newland Bowker, November 22, 2020, Stonington, Maine LNBowker@bowkerassociates.org

Really enjoyed the framing of this work on how conflicting narratives emerge in the wake of any man-made disaster and how they played out and are still playing out in obfuscating a definitive explanation and shared understanding of all of what incubated and grew the Samarco tailings failure, where in that incubation intervention was possible and what intervention could have averted failure.

 https://www.academia.edu/40073718/Rio_Doce_Risks_and_Uncertainties_of_the_Mariana_Disaster_MG_Available_athttp_www_scielo_br_pdf_rbh_v39n81_en_1806_9347_rbh_39_81_141_pdf?email_work_card=view-paper


My work over my 5o years in public policy treats all public interest issues as complex systems wherein it is possible with diligence to map all of these things with enough certainty and clarity to institute effective loss prevention/correction and identify what governments role needs to be to accomplish that in a free market world. All else is noise and needs to be named as noise and discarded. 


For the moment at least all these conflicting narratives in mining and tailings are good news despite the noise of wrong, false and incomplete narratives of miners, NGO’s, analysts , researchers and governments.  Not so long ago there was no narrative except what miners chose to put out.  That will never be again. So, while the competing narratives on what happened and why and what should be done about it seem unresolved and unresolvable at the moment, it is still a huge leap forward!!!
In all situations where the public interest is compromised by the operations of private enterprise, there is a discernable critical path to address damages caused and prevent such losses in the future. That needs to be a carefully designed, carefully honed trim tab not a big prescriptive hammer.  It needs to be able to take the private enterprise from where it is, how it has been governed and financed in the past to where it needs to be not with demands and prohibitions but with a shared plan and with public finance to expedite the transition where there is urgency for the potentially affected public.  That urgency exists for the world’s present portfolio of 21,000+ tailings facilities.
Samarco produced more narratives from more perspectives than most failures in history as did Mt Polley and Brumadinho and that is actually a good thing for all its dysfunctions, false and incomplete narratives.


 Thanks to Godon Hoekstra on Mount Polley and Paul Kiernan on Samarco the media part of that reached the general public for the first time and now has a place in main stream media that did not exist before where miners had exclusive control of media and little interference from government so long as the jobs and revenue continued. Gordon Hoekstra actually turned up documents that the government and miners had not disclosed to the Cause of Failure panel. In the past 15 years the internet and its vast repository of documents has made it impossible for mining companies to control the narrative and has brought government policy /lack of policy under greater scrutiny.  It has also made it possible to produce more competing narratives, many with erroneous and irrelevant information and demands than ever before.


Renova is a great example of the miner’s attempt to control the narrative disguising liability as largesse, as the cited article above, so aptly put it, treating victims as beneficiaries. Claims settlement of course should never be in the control of the company or individuals whose actions gave rise to the claim yet government failed to provide or require any other suitable structures for disaster response. The miner’s ploy at largesse has not in fact fooled anyone or absolved them of liability under law . Neither the public nor investors bought the largesse charade.  That part of Renova is just system “noise” and irrelevant. The conflict between that miner narrative and the law itself and the workings of law via the Fedeal Prosecutor isn’t relevant to recovery and relief for those along the Rio Doce or loss prevention for the 1/3 of other tailings facilities in the world’s portfolio of 21,000 + that are incubating failure conditions. 


Renova was the wrong vehicle to do the job but it is all we have.


Renova has not resulted, predictably, in the fair and prompt claims settlement that could and should have prevailed if government had made other decisions. But it is the only structure created and however flawed it is the first time I know of where a structure for recovery was actually created post mining disaster. The new Bento delayed but well along is a high-water mark for resettlement that should be held up as the standard for all resettlement necessitated by a total loss of any human settlement.  Certainly Bento, an ancient vibrant non mining community deserves that.
 What we need, of course, are the neutral professional structures that would have prevented loss in the first place (as for a brief Camelot moment in time the Mend Program was) and a structure to respond to it with more expertise and emphasis on recovery and relief and less emphasis on reputation protection and liability thwarting.
Massive change in long established systems is inherently messy and conflict ridden.
But it is actually happening and our job is to keep it going in that direction. 

Posted in BHP, Brazilian Mining Law, Catastrophic Tailings Failures, COE Tailings Initiative, Fundao Talings Dam, Germano Tailings Dam Failure, Gordon Hoekstra, Mine Risk Management, Mining Risk Management, Resource Governance, Risk & Public Liability of Tailings Dams, Risk Avoidance & Loss Prevention Metallic Mining, Uncategorized | Tagged , , , , , , , | Leave a comment

VALE NOT ANOMALOUS WITH ITS TROUBLED TSF PORTFOLIO

VALE’S TROUBLE IN 1/3 OF ITS TAILINGS FACILITIES EXISTS WORLD WIDE

Release: October 7,2020, Stonington, Maine, U.S.A.

Contact : Lindsay Newland Bowker LNBowker@bowkerassociates.org 207 367 5145

Vale is not alone in this and that only their TSF woes makes news belies that their 1/3 of troubled facilities is, by all available data, the same world-wide. Neither the coalition of endorsers of Safety First, nor the GTR admits, or is working on, that.

 That 33 out of 104 Vale TSF’s are at issue viz stability assurance matches my overall estimate in the worlds ~21,000 existing TSF’s. This 1/3 of portfolio estimate was set forth in Dark Shadow’s (Bowker Chambers 2017) and is further confirmed and explicated in WMTF’s yet to be published work on the global tailings inventory and its present state. Many long excerpts of that have been released in emails.

Important for NGO’s and investors to understand that identifying facilities where loss prevention work is needed is not the same as “at immediate risk of failure”.  Everything we know about catastrophic failure says that failure forms and incubates over many years.  The earlier the errors are identified and corrected and acceptable management protocols instituted the lower the ultimate risk of failure from other than random, uncontrollable events.  To say that an estimated 1/3 of the present world portfolio needs corrective intervention to prevent loss from human error is not the same as saying 1/3 are at imminent risk.

For several years, I have repeatedly and publicly posited that as much as 1/3 of the world portfolio falls short of safe standards and have publicly advocated since 2014 that the first priority for loss prevention must be to find and fix or remove those already existing TSF’s that pose a risk of catastrophic failure, that is to say generational, non-remediable public loss.

Here is the slide from my CERES Presentation with the same information presented in my presentations and correspondence with COE and my presentation to UBS in February 2019. ( I have since refined the 18,000 to 21,000 from additional information)

 I hope to finally get my report, “State of World Mine Tailings Portfolio” out in the coming weeks. ( in the works since July) 

That the world tsf portfolio included an unacceptably high proportion of existing (active and not soundly closed) facilities was first identified in Bowker Chambers 2015.  It was obvious in the stats.  It was also obvious as of 2014 that the scale of investment needed to clean up the world portfolio would require some form of government assistance even if the ultimate debt accrued to originally responsible miners as well as investor support.   I wrote about that in the Bowker Associates wordpress as early as 2014.

Since 2014 I have consistently advocated publicly a united objective of finding and fixing at risk dams and prioritizing those posing the greatest near-term risk of harm. I advised COE at the outset that this should be its main aim and offered a very different strategy for investor intervention than that chosen by the COE partners.  I recently shared those ignored recommendations widely.  It focused on a further level of screening of all existing ” high hazard potential facilities” planned for production in the next five years to ensure that proper stability assessment had been applied.  Here is the actual slide from my three invited investor presentations in February 2019.

That is still what is needed. 

To keep holding Vale up as somehow anomalous misses the point.  Safety First misses the point.  The GTR misses the point.

Repeatedly reporting only Vale’s woes brings with it the cloud of Brazils still deeply flawed system of risk identfication and mandated action levels which have nothing whatsoever to do with actual stability analysis. By Brazil’s statutory “check list” standard for action level Brumadinho, weeks before its failure, was rated “not likely to fail.

 Safety First and the GTR  have taken control of the narrative on TSF reform each in streams that do not address or have as a principal aim the fundamental work of finding and fixing at risk TSF’s.  That leaves little space for the truth or the main work actually needed, the work World Mine Tailings Failures has done and is still trying to do.

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COE TAILINGS DISCLOSURES NOT REPRESENTATIVE OF WORLD TAILINGS AND NOT THE RIGHT DATA FOR ASSESSING COMMUNITY OF ORIGIN RISK

NEVER IN THE HISTORY OF ADVOCACY OR MINERAL RESOURCE GOVERNANCE HAS THERE BEEN MORE FACTUAL DATA AVAILABLE AND LESS DONE WITH IT to effect community of origin security and  secure  damage   compensation for long past,long avoided and continuing failure damages to people, to lands and waters essential for life.
My short tenure researching cause of tailings failures ( 7 years)  has drawn on and comes from  profound respect for the work of the folk who have really done the most and best of the work that can prevent loss: Robert Moran, Steve Vick, Mike Davies, Norbert Morgenstern, Geoffrey Blight, Dirk Van Zyl, Todd Martin,  Scott Olson, Abouzar Sadrekarini, Kevin Morin, Gavin Mudd, Stephen Northey, David Humphreys , Jack Caldwell,  Andy MacG Robertson, NRCAN’s Bill Price,YT John Kwong,Bernhard Dold,Karen Hudson-Edwards, Kim Lapakko.
These are the heroes who have given us the best knowledge and guidance on risk assessment and loss prevention, on consequence of failure and  possible recovery, on the elevated consequence of recovery delayed.  I have never seen a technical report, EIS or other government required document citing any of this foundational work even though the MEND program in Canada showed us how to solicit best science and put it work in Governance.  With too few exceptions, like Robert Moran’s Pebble Science, it is rare to see an advocacy group trying to apply these foundational works to the issues posing community threats or even using it when already available on a specific community campaign.
I believe in the power of many voices and there is no question that only advocacy has taken up the work of documenting consequence.  Government avoids that when handing out permits or overseeing community of security conditions at already licensed operations.  Historically it is only through advocacy pointing to policy gaps in the form of documentation on severe public consequence we have evolved what fragments  of law we have aimed at loss prevention.
It is in the calls for action  arising from advocacy that things go off the tracks.  The idea that a mere list of tailings facilities would help with loss prevention and that UNEP was the right global developer and caretaker for such a list was a joint call for action by some of the world’s biggest and best “responsible Mining” advocates including Mining Watch Canada, long a gold standard for solid, factual issue mapping on community of origin risk and consequence, London Mining Network, Earthworks Action, Jubilee Australia and Greenpeace. ( Safety is No Accident)
None of the standard tailings descriptors in what few government tailings disclosures exist ( Spain, Chile, Brazil, Canada, Army Corps of Engineers and a few others ) contain any data relevant for hazard potential assessment or actual risk of failure assessment. The commonly used  descriptors  which are the basis of the COE Tailings disclosures emerged from the UNEP/ICOLD bulletin 121. As Steve Vick explained these descriptors arose mainly from ICOLD’s desire to have a common descriptive data set for all large dams, both TSF’s and water dams.  That in itself was a bad decision as water dams and tailings dams have nothing in common.
As a result of my guidance at several investor presentations including the COE Tailings Initiative planning sessions, several extremely useful data elements were included in the COE survey:  hazard potential class, age of structure, planned depositions next five years, date of last stability analysis.  Advocacy didn’t call for any expansion over the basic Bulletin 121 elements or the inclusion of any known indicators of risk even though there many  basic well established ones like the host geology of principal ore mined which YT John Kwong long ago mapped in a scale of risk to local community. Like the entire body of work from MEND and from the Mine Drainage Assessment Group. Like all the tailings specific work by Davies, Todd, Morgenstern, Blight, Van Zyl and so many others mapping the relationship between tailings characeristics, climate, geography and designing for TSF safety.
Unfortunately ICMM,  a cartel and lobbying entity for the world’s largest miners disemboweled the stability question on the COE tailings disclosure survey advising all its members to include any recent technical report or inspection ( according to the disclosure notes of an ICMM member).
The result is the tailings survey was a very small  response relative to the world’s 21,000 existing active and inactive facilities with a jumble of inconsistent and duplicative interpretations to which Compiler in Chief, Elaine Baker has been applying good principles and good science to sort out and present at a  portal developed by Grid Arendal.  The grand debut of the Portal is scheduled  sometime this month.
World Mine Tailings Failures was given  access to all the original surveys after a first pass through by Elaine Baker’s team and, since October,we have done our own further editing which reduced the valid unique usable records down to a count representing less than 10% of the world mine tailings portfolio.  By comparison with other disclosures, Brazil’s, the ACOE, a 2015 world survey of tailings facilities put together by Paulina Larrauri at the Columbia Water Center, World mine tailings Failures has determined that the COE data set is not representative of the characteristics of the word tailings portfolio and specifically excludes most of the world’s presently  at risk facilities which were already dumped over the past decade to less well financed, less experienced miners. Pinto Valley is a disheartening and worrying example.
Moreover what Grid Arendal has presented at their very sexy glitzy glossy portal is not correct.  For example the stat that 10% have had stability issues is very misleading without knowing which facilities actually had  a proper stability analysis.  Our impression based on in depth analysis of case histories is that few facilities represented as stable actually have had such an analysis.  The data presented on age of facilities gives the misleading impression that depositions are going to new well designed facilities.  A cleaner better informed analysis of the COE data itself shows this is not correct.  The majority of  planned deposits are to very old high hazrd facilities which likely have not had a proper stability assessment.
The Grid Arendal case histories of major failures are superficial, incomplete, inaccurate and fail to mention even what was authoritatively documented as cause of failure.
We have shared all our analysis from the beginning with Elaine Baker, the UNEP director, the COE Tailings Action partners, the Global tailings review team.  We see no corrections.  We expect more of the same and we are dreading all the hype we expect will attend the official debut of the portal and data. World Mine Tailings Failures analysis was supported in part with very small donations from , the London Mining Network and Mining Watch Canada .  We are still working on our State of World Mine Tailings 2020 report at WMTF but we have issued many reports of our findings concerning the representativeness of the COE disclosure data and what could reliably be mapped as risk in the world portfolio of 21,000 existing facilities world wide.
The COE disclosure data set has nothing to do with actual risk.
UNEP is not the right compiler or guardian.  They don’t have the depth in world mineral supply to do that and most importantly the logical primary compiler of the data should be the governments issuing the permits and allowing continued operations.  There is a role for a global compiler and World mine Tailings Failures is moving towards that via a compilation of all existing government disclosures.  WMTF has the technical depth though not at present  the funding and staff to do those global compilations properly and use them correctly in risk assessment and failure predictions.
What the coalition of advocates called for was a mistake.  We are almost two years past Brumadinho and a lot of attention and energy has gone towards this enterprise which has not and will not improve community of origin security or bring long overdue relief and compensation to thousands whose tailings failure damages have been ignored.
It is worrying and disappointing that world wide advocacy has not done more for damaged and at risk communities of origin with the wealth of data that has come forward .  I see a trend of ignoring what points to facts and solutions that could help at risk and already impaired communities of origin.
For example, the joint London Mining Network and Jubilee Australia action on Panguna.  No question some of the worst mining atrocities and severe community damages ever and these are two organizations who have in the past done outstanding work. However, in a recent major report on Panguna,  they chose to pin the Panguna atrocities on Rio instead of on the PNG government soldiers who murdered  protesting Bougainvillians in their own villages (not even while protesting at the mine site).  The government hunted the leaders of protest down in their own villages and murdered them.  When I challenged their blaming Rio they said , in essence “yeah but blaming the miner brings more public support”.  They didn’t change or alter their strategy or their report.
Our call for years has been to get off the “evil miner”, “all miners are evil” trolley and on to “Government owes more to its people”.
Several US groups of some good repute, or at least excellent cause, launched a completely bogus lawsuit vilifying Scott Olson and making truly absurd claims comparing Polymet to Brumadinho.  Scott Olson is the creator of the most used tool for prospectively evaluating stability life of facility for a proposed TSF.  Advocacy should have been grasping what that is and insisting it be used for the few projects where a new TSF is actually proposed.  They had an authoritative opinion by Dirk Van Zyl flagging actual flaws with the stability assumptions of the Polymet tailings plan but instead of understanding that and holding that up they went with their united totally bogus “Polymet is making the same mistakes as Brumadinho because both used Scott Olson”.  What an unforgivable waste of donations made in good faith.
Every time there is an opportunity for comment or a new mining event of concern, the pattern is that advocates drag out and re assert their wrong advocacy of a ban on all new upstream dams  (which would do zero to reduce risk as its the wrong use of exiting upstream dams that is the problem ) and demands cash up front  to pre fund failures.
I have been sharing the real story on Brumadinho since days after the failure but advocates seem to prefer the version wrongly advanced by Reuters/Wall St Journal that Vale withheld information that could have prevented failure.  They don’t really seem to want to understand how failure forms, how to actually measure risk, how to prevent loss. They seem to be in love with the evil miner meme and its proven record in rallying the masses, their donations, their signatures on petitions.
The truth of community risk and community security  isn’t very sexy.  It doesn’t motivate the masses as readily as naming miners as all cheats and villains.
They seem jointly determined to take silly positions and stick to them.  To take bows on things don’t help communities at risk or those that have already suffered.
To celebrate the Grid Arednal Portal is  to divert all attention away from meaningful loss prevention and I hope these venerable reputable advocacies world wide don’t go that route.  I hope they abandon their evil miner approach for a tougher look at, and clearer community of origin demands for fundamental chnages in government resource management.
Lindsay Newland Bowker
Stonington Maine
June 13,2020 revised June 17,2020
Posted in COE Tailings Initiative, Grid Arendal, Uncategorized | Leave a comment

A RECONSIDERATION OF THE ‘SOCIAL LICENSE TO OPERATE’ Isn’t It Government’s Job to Provide For safety and Well Being of its People, Lands & Water?

CONTACT: Lindsay Newland Bowker, Executive Director World Mine Tailings Failures

compiler@worldminetailingsfailures.org

March 5,2020

 

The Responsible Mining Foundation has just released its 2020 Responsible Mining Index with the survey results , all post Brumadinho, on progress towards “Responsible Mining.”   Post Brumadinho has been a frenzy of supposed awakening and serious commitment to TSF failure prevention.  Even investors are finally awakening and asking about tailings capacity and management instead of just regurgitating whatever miners present in their webinars as a basis for sound investment and investor support.

Across the Board though it is still “failing grade” according to the survey “RMI2020”. The RMI2020 results beg the question: Are we actually gearing up for change, laying the foundations for change or are we in the midst of yet another orchestrated calming of the waters by UNEP and industry cartels. The last big “discernment”, the 2006 UNEP/ICOLD 5 year long response to the failure crisis of the 90’s turned out to  not even list all serious failures let alone offering any road map to change.

The public demand and expectation is unchanged for the past 20 years: that  mineral sector performance  does not presume or accept the inevitability of a local sacrifice zone for the sake of greater public good serving the many as has been an accepted “mining doctrine“ for hundreds of years.  The public gets that a local sacrifice zone is neither inevitable nor acceptable and are demanding “responsible mining”, that, is a permanent guided reconciliation between sustainability and reliable affordable supplies of the minerals the world needs and will continue to need no matter how green or economy gets.

Here is the RMI2020 summary of the “Community Well Being” part of the Responsible Mining Index .

RMI2020 community well being summary.

And here are the RMI2020 survey results by miner, most well below average score, none achieving the possible “best score”

rmi2020 community well being scores by miner

Promises Made to Investors, Regulators & Communities Are Not Promises Kept

RMI2020 recognizes that there are lots of commitments but little performance on  commitments .

The measures on “Community Well Being” do not specifically address or enumerate what  public commitments to investors and communities were made or track whether these have been met or present status. A great deal of assurance directed at investors was made publicly about agreements reached with government and affected communities post Samarco.  No new community has been built as promised.  No affected person known to us is satisfied with what government and the miners actually delivered as help and compensation and resettlement for their lost ancient village.

Bento Rodriguez After the Samarco TSF Failure

mud-covered-bento-rodrigues

Were the 5,000 made homeless in 17 communities , the 1000 who were injured, the loved ones of the 127 killed or the parents of the many never found young children and infants ever compensated by either government or the coal miner?

Stunned Buffalo Creek Residents Looking at Their Village Remains

Buffalo Creek

Who Should State & Structure Public Interest Safeguards?

I map and study the dysfunctions of our global mineral supply system as a public policy wonk continually mapping mining back into precedent for private companies delivering essential public services, e.g. railroads, utilities.  health care, education. Mining is so unique as an enterprise, so deeply affected with a public interest because of our reliance on their product, that there really is no precedent that applies fully or even provides a meaningful comparative model. However in all these other “privatizations” there are clear public interest/public protection provisions and a separate industry/service specific administration with authority to intervene if the public protections are violated.  Not so in mining.

The model we have for “community well being” for the minerals sector of the world economy clearly still, de facto, allows a local sacrifice zone in the community of origin.  And worse, it delegates to miners what should be  the sole realm of government, the safety and health of its citizens, the health of lands and waters to sustain life and provide safe and sufficient local food sources.  Our tradition of “social license to operate” arose specifically out of violence, conflict and organized local opposition to what government had already agreed to. Citizens revolted against the activity itself and the people engaging in the activity; against.the miners and their contractors and there evolved horrific spectacles, as in Bougainville, of government police and military bearing arms against their own citizens, treating protest as not only civil disobedience but a criminal act, seeking  protest leadership  out in their villages  by  helicopter , rounding them  up shooting them on the spot.  Insurers even recognize vehement opposition to government decisions as “ political risk “coverage which IFC requires for all its projects and which has been invoked on far too many of its projects.

If Governments want to use their mineral resources to create taxes, fees, royalties to feed the treasury , they need to provide the circumstances through the legal frameworks for licensing  that both insures miners that they can get on with their work and mining affected communities with the assurance of support and protections that respect and preserve life. It is Governments who put miners and communities in conflict with one another.

Mining is a unique technically complex, high risk endeavor with a greater level of uncertainty than almost any other endeavor we might list as deeply affected with a public interest. The minerals this sector produces are essential to life as we have chosen to live it.  It is Government’s job to license this activity with the provisions for health and safety built in through zoning and “no go zones”, through standards in law which require building to a level dictated by hazard potential regardless of impact on cost, through the preservation of independent technical context in mining to actually implement and oversee these health and safety protections for lands, water, communities, cultural heritage, human life.

Mining is, and must be, de facto a public private partnership.  Each partner should be doing their part.  Negotiating a social license to operate is not mining’s job though as any company it  owes a duty of care to its own workers and duty in law and decency to the surrounding community.

To complete the RMI2020 assessment of mining performance  on “community well being” we would need companion charts on the extent to which the legal framework for mineral extraction and processing have adequate “community well being” standards and are actively assuring attainment of these  standards are met life of mine until safe and permanent closure.

At World Mine Tailings failures we have just initiated a monthly “In Memoriam” for the never acknowledged, never compensated and in many cases cotinuing non remediable damages in the failure affected area. We are now featuring Buffalo Creek, February 26, 1972.  I am pretty sure those 5,000 very poor Appalachian families at Buffalo Creek made homeless through complete neglect by government and the coal company never got their housing replaced or lives  made whole again with any help from government or the company at fault.

In short we need to rebuild from scratch how we handle “high hazard potential” mining plans and we need to include public exposure to life threatening, health impairing leaks and emissions.in “hazard potential” ranking  The gap is in government standards and investor policies.

Thank you for RMI2020 and for this  unflinching message that we have little to cheer or applaud despite all this buzz about renewed commitments to responsible mining.

March 5,2020 Stonington,Maine

For Mike and for Emanueli

Posted in Brumahindo Dam Failure, Buffalo Creek Coal TSF Failure 1972, Catastrophic Tailings Failures, Germano Tailings Dam Failure, ICOLD BULLETIN 121, Linhares Civil Action Against Samarco, Measuring Magnitude of Consequence TSF Failures, Mike Davies, mining environmental risk management, mining public liability, Responsible Mining, Responsible Mining Foundation, RMI2020, Samarco $44 billion lawsuit by Brazil, Samarco Dam Failure, Social License To Operate, Uncategorized, UNEP TAILINGS MANAGEMENT REFORMS, unfunded public and enviornmental liabilities, United Nations Human Rights, World Bank, World Mine Tailings Failures | Tagged | Leave a comment

BRUMADINHO HOVERED IN CONTINUAL STATE OF FRAGILITY THROUGHOUT ITS LIFE: EXPERT PANEL REPORT

CONTACT: Lindsay Newland Bowker compiler@worldminetailingsfailures.org
A real page turner!!! The expert panel technical cause of failure report commissioned by Vale was released yesterday (December 12, 2019).

This is a very  distinguished  panel but as with all such commissioned  works it is contractually limited to technical causes of failure and does not address the quality and competence of the Vale geotechnical team or the consultants and contractors involved over the life of the TSF or otherwise address prevailing practice or best practice.

It makes the point that the particular characteristics of the tailings in combination with an unsuitable design allowed the TSF stack to hover in a continuous state of  not fully understood or clearly recognized vulnerability over its entire operating life.  Applying standard tests and following standard guidelines for stability analysis and other assessment produces false and misleading results which on the whole wrongly state the stability condition and state of the tailings mass.  In one test the panel themselves did in the laboratory the tailings showed a compliant 1.5 factor of safety  in undrained conditions immediately pre-failure.

This mineralogy is significantly different from most natural soils that are predominately composed of quartz (i.e., silica-based minerals). The mineralogy also is significantly different from the soils used to develop the traditional empirical correlations used to interpret in situ tests, such as the CPTu, which would indicate that these empirical correlations may not provide reliable results in these tailings. p16

Historical stability calculations using LEM performed prior to the failure that used an undrained strength ratio of su/σ’vo = 0.26 calculated an FS close to 1.0.( TUV SUD 2018) However, if the FS was very close to 1.0, the dam would be expected to show various signs of distress, such as cracking and deformations, because the materials must strain (deform) to reach their peak strength. The fact that the dam showed no signs of distress prior to failure suggests that the results of traditional LEM were misleading. P59

Re-analysis of the stability of Dam I using the peak undrained strength values determined from laboratory testing performed by the Panel, which reflect the additional strength due to bonding, resulted in a FS close to 1.5. However, this ignores possible regions of high shear stress where the local FS can be less than 1.0. The additional strength due to bonding essentially allows a steeper slope to be constructed without signs of distress, even though it could be potentially unstable

Bonding here refers to an apparent tendency for iron particles to almost immeditaely bond with other particles creating a brittleness that adds a strength easily lost in un drained conditions ( the chronic state of the Brumadinho dam 1) resulting in sudden abrupt failure under  only a very small increase in strain. Brittleness is long understood to be a characteristic associated with abrupt and complete flow slides and is currently frequently referenced in connection with oil and gas wastes .

The overall conclusion is that it was something called a “creep rupture” ( a cumulative increasing strain within the mass deriving principally from the unusual weight  of the tailings). In the case of Brumadinho the additional strain was brought on, according to their modeling, by increasing saturation of the previously unsaturated layer above the chronically , critically high water table within the structure.

The report settles some long speculated attributes of the failure itself and causes .
(1) the failure of the dam was caused by the flow failure of the tailings contained within it.( a failure of the dam itself did not precipitate the flow failure)
(2) the failure began at the top of the dam not at weak lower layers as some experts opined on viewing the video.
(3) there were no external triggers( explosions, earth tremors)
(4) the horizontal drilling program , the main element of Vales several year effort to de water the dam,was not the cause and the the structure recovered quickly from the June 11 2018 hydro fracture event
(5) no drilling or other work on the dam contributed to or triggered the failure.
(6) there were no deformations one would associate with a normal tailings dam about to fail and Vale’s very high tech monitoring system detected none of any concern.

The report settles the widely held speculation that something more could have been done to prevent failure because the main conditions of concern were known pre-failure. The panel specifically noted  that little change had occurred in the water table over Vale’s focused and intensive 3 year effort to de water  due to  continuous influxes and the poor hydraulics of the stack itself .

The panel confirms that Vale did conduct a stability analysis for every raise, a basic of good practice. But  the limitations in “sophistication” , suitability to actual conditions and reliability of results on which Vale in house and consulting engineers based their conclusions and decisions are noted.

Vale’s geotechnical team insisted on  one model for all stability analysis which is not correct procedure. Tuv Sud complained about that in their 2017 stability report.  Vogbr complained about Vale requiring a specific model and supplying the data for that model at Samarco. It is important to select the correct method for liquefaction analysis for the conditions, stress and loading concerns at that moment in time and having the technical capacity at hand to apply and interpret the results of those analytic methods. One model for all situations, as Vale required does not satisfy that requirement.  Further, the specific model Vale insisted be used for all government required stability analysis is only appropriate for assessment of prospective changes in the structure, for example dam raises.  It is not appropriate for assessing actual conditions of a structure at any point in time.

The panel, because of the contractually imposesd limitations  on “technical causes” does not mention Vale’s imposition of a particular  model on all its consultants for all official stability analysis . The panel due to this limitation on its inquiry was not in a position to offer comment on Vale’s policy of one model for all situations or to comment on whether a licensed engineer functioning as an independent expert ( as required under Brazilian Law) should agree to  use of a model it does not feel is suitable to actual conditions.

TUV SUD, after failure refused to certify any more dams under Brazilian Law where its checklist risk of failure lead to a proforma result of “little risk of failure”.  No engineer should be required to put its name and signature on a conclusion that is not its own.

The report in general does not conflict with any of the analysis  we had posted at World Mine Tailings Failures.    It does though add many new insights and additional data which we are in the process of including in our failure narrative.

The panel  specifically agrees that the design of the TSF itself was a major never corrected contributor to the failure. The panel only cites its steepness and the type of construction   (upstream)  and its poor hydrology without applying what existed as widely recognized standards e.g.  Vick’s that upstream should not be used if the tailings to be deposited are not 40% to 60% sand. or Davies et. al. on the cardinal rules for safe upstream construction ( size, slope, rate of raise etc.)  The report adds a fact that  had not been brought out in previous analysis associated with the dam’s initial design and history:  that the starter dam blocked a creek that had been draining up stream groundwater resulting in a recurring and continuous back up of groundwater  within the structure ( in addition to the inflow we note from the higher draining elevations to which the structure attaches.

The panel adds that a centerline setback undertaken  pre -Vale early in the life of structure contributed to failure in that future  raises built up from a foundation of finer less strong tailings.

It would be useful and fruitful to commission this exact panel to address all our other questions about whether Vale and its consultants executed a standard of care that met or exceeded prevailing practice.   Vale seems to have exceeded prevailing practice. They at least had an in house geotechnical staff and that staff put considerable store in mandated reporting and standards under  Brazilian Law .  Overall and on tailings Vale is right in the middle of the global pack on the various elements of the Responsible Mining Index 2018.

It would greatly contribute to the ongoing Global Tailings Review to have this same panel offer a civil society/best practices perspective on this same data.

(1) in mergers and acquisitions what tailings review should acquiring investors/owners  do of the tailings facilities that come with the deal. (Vale undertook none nor is it customary in most mergers and acquisitions to undertake such a review).
(2) after acquiring and before actually using a previously owned and built TSF’s, what is the appropriate due diligence? Prevailing practice seems to be to just continue to approved maximum  without a fundamental  re review of whether it affords suitable capacity for planned depositions.
(3) at the point where Vale acquired this facility were any corrections possible that would have allowed safe use for ultimate depositions up to approved maximum height and capacity?
(4) could the facility have been de watered to safe levels for decommissioning or re mining given the continuing influx of ground and surface waters, the expected annual rain fall and the inherent deficiencies and inadequacies of the dams hydraulics?
(5) are the aberrant characteristics of these tailngs present in other irons tailings depositions and are they an issue only where undrained conditions can form and prevail?
(6) how should tailings of these characteristics be managed?  would they have been safe in a centerline or downstream or do they need to be in a lined engineered  in ground facility?
(7) what measures to de risk are available once a TSF attains the state this facility was in 2013.
Posted in Brumadinho Expert Panel Failure Report, Brumahindo Dam Failure, Catastrophic Tailings Failures, Causes Of Catastrophic Tailings Dam Failures, Creep Rupture, Flow Failure, Global Tailings Review, Lindsay Newland Bowker, Rate of Raise for Upstream Tailings Dams, Responsible Mining Foundation, Responsible Mining Index 2018, static liquefaction, Tailings Dam Risk Management, Tailings Hydrology, Tailings Storage Facility Failures, TSF Risk Management, Uncategorized, Upstream Tailings Dam Safety, Vale Indictments, World Mine Tailings Failures | Leave a comment

BRAZIL A RUNAWAWY TRAIN INCAPABLE OF DE RISKING ITS AT RISK TAILINGS FACILITIES

 DATE: March 17,2019  (revised 4/3/2019)

CONTACT:LNBOWKER@BOWKERASSOCIATES.ORG

 

I have no faith that anyone in Brazil has the technical competence to  assess the stability of the 17 identified large at risk dams  let alone figure out how to safely de risk them.  ANM , the new mining agency, and Brazil ‘s mining law is a runaway train.   They are not capable of solving any of the problems its own confused law has created over 40 years.

17 at risk dams as of april 2 2019 marco pedlowski

source: Marcos Pedlowski April 2,2019

The 4 Risk 3 Level dams are deemed at imminent risk of failure.  Dam VI at Corregeo Do Feijao, immediately adjacent to the failed Dam1 initially survived  the explosive loss of Dam1 but is now listed at level 1 which requires specific re evaluation of stability and correction of identified problems.

The Brumadinho story is the poster child for the unknowing and misunderstanding of Static liquefaction an important and overlooked factor in as many as 50% of   of the worlds catastrophic failures Morgenstern said in his recent Melo lecture. Brumadinho and the 17 identified large at risk dams are a common story of what we neglected over  the past 40 years of our mineral supply model . How can we .now  overcome and correct for errors in dam design and construction  when for 40 years we have just kept building past them and on them . At Brumadinho at the 17 troubled at risk dams  waste problems  came from companies creating a global presence through mergers & acquisitions that didn’t involve much strategic vetting of the wastes they are taking on or even the quality of the deposits they were acquiring.

In 2002, just as Vale acquired the 3 mines of which Dam 1 was a part, Davies, Martin & McRoberts wrote:

“Design practice in many mining regions has in fact discounted the possibility of the mechanisms and criteria for this failure mode, the possibility of its occurrence has often been overlooked in the search for other causes of failure.

The simplistic view is that by defining the friction angle and pore pressure of the sand, we can predict the strength of that sand, the drained strength. The exception these references allow for is sands during an earthquake when the sand may become ‘liquefied.’ Clays on the other hand are deemed to be cohesive and have an undrained strength. Those readers who have benefited from a more enlightened geotechnical education may not find this a credible proposition, but it is clear to the authors that even as we enter the 21st  century, a range of educators, regulatory and quasi-governmental groups, and an alarming number of geotechnical consultants still have not un-learned their first series of lectures in soil mechanics based on textbooks expounding the views noted above. Until these simplistic models have been un-learned by all involved with the design, licensing, and construction of tailings impoundments, a major contributor to failures, i.e. inappropriate and incorrect designs based upon a lack of understanding of the tailings strength, will continue. ” (emphasis added)

Davies, McRoberts, Martin ( 2002)

In late summer 2018, just months before the Dam 1 failure, Dr. Morgenstern wrote:

From a technical perspective, it is of interest to note that inadequate understanding of undrained failure mechanisms leading to static liquefaction with extreme consequences is a factor in about 50% of the cases. Inadequacies in site characterization, both geological and geotechnical, is a factor in about 40% of the cases. Regulatory practice, considered appropriate for its time and place, did not prevent these incidents. However, the most important finding is that the dominant cause of these failures arises from deficiencies in engineering practice associated with the spectrum of activities embraced by design,construction, quality control, quality assurance, and related matters. This is a very disconcerting finding.” Morgenstern, The Melo Lecture August 2018

It is in this dark crevasse of “unknowing” that Córrego do Feijão Dam I matured to the 5th largest failure ever in recorded history, based on what we have now as deaths, runout, and release.

Dam VI , which is among the 17 that failed its stability re certification, iis the pool of water in the foreground. The fully disgorged Dam I is the big black hole beyond that.

Most of the underlying failure conditions at Brumadinho already existed when Vale  acquired in 2001.  Vale just followed suit with past practices for at least the next 5 years.  An awareness of critical issues, especially the drainage issues and the eroded  unstable beach  conditions emerged post 2006 but there was no systematic commitment to the identified fixes and changes needed in operations. The TSF had a scheduled end of life of 2016  and in 2013 less than 800,000 in capacity remained and Vale was on the hunt for tailings capacity to meet its goal of doubling production by 2023 so Dam 1 just counted itself out of serious attention by not furthering that goal.   No fixes were planned.  They simply stopped depositions and were pursuing  a re mining plan at Dam1  as  a revenue generating “de commissioning” or even possible sale.  They had obtained an expedited permit  for the re mining just before failure.

My advocacy for a few years now has been for  a competently staffed adequately  mandated Tailings Board similar to how a Buildings Department works.   It would have special authority in the event of an impaired dam , especially one at risk of failure by static liquefaction, to  essentially take custody of the dam to insure immediate  competent expert attention to its de risking and stability. The $1 bn it may have cost to solve the Brumadinho’s problems is far less costly to civil society than the $13 bn it is trying to grab now for clean up. According to an inquiry from Deutchebank on what are realistic costs ,Vale is seeking a total $1bn for all 5 dams it had been directed to de commission.    These dams can’t be immediately de risked or decommissioned for anything like $200M each.   The work at these 5 dams must be determined by experts and they must have what they need no matter what the cost.

All would agree, this is no way to govern mineral resources and no way to provide a sustainable supply of world minerals. It will be disastrous if Brazil allows the response to the impaired at risk dams to proceed under Vale’s control especially having grabbed $13bn for clean up on the one that already failed. I am advocating emergency authority to create a sort of “protective custody” and informed oversight  and authority and funding to act as needed to properly de risk or  de commission those 17 dams which failed their stability re certification.  Brazil law already provides for absolute liability regardless of effect on stock holders and investors.  It already has the mechanism to finance what needs to be done on those dams.

For more on the Brumadinho and static liquefaction follow the unfolding narrative at http://www.worldminetailingsfailures.org

Posted in Brumahindo Dam Failure, Factor of Safety, Lindsay Newland Bowker, static liquefaction, TSF Stability Assessment, Uncategorized, Vale SA., World Mine Tailings Failures | Leave a comment

BRUMADINHO:WHO KNEW WHAT WHEN?WAS ITS FRAIL CONDITION RECOGNIZED BY VALE OR BY GOVERNMENT?

All in the 4th estate have done an absolutely fantastic job unpacking the bits and pieces that are now in the public domain and trying to say the right things about them.  Our work here at World Mine Tailings Failures is dedicated to compiling and vetting all the relevant information, having it presented and interpreted by experts as to cause of failure, early signs of failure, consequence of failure and what information was available pre failure that could have prevented the loss.

We have been working non stop translating, reading everything available to us  which may or may not include whatever document  Reuters is referring to.  Reuters has not sent us that document.  In my large sphere of global experts, none of them have seen the document Reuters is referring to.

What we can say so far is there is no question that the facility was in  fact in  a discoverable pre failure/extremely vulnerable  state for sometime.  What is not clear is whether  that was appropriately measured and identified  in what was required by law to satisfy required audit and stability reports or what  was developed by Vale’s own engineers or consulting engineering staff.

What is clear in the first instance is that the government classified this dam as ” high hazard”  in the event of failure using a pretty much universally  used classification  system intended to assess the potential “mining affected area” and the nature of adverse  effects in the event of failure. A more refined severity measure developed by the Columbia Water Center puts the Brumadinho at #5 in terms of scale of impact in the  event of failure.  That fact(of brumadinhos hazard class and the degree of severity by  Larrauri & Lall)  has been sitting in my computer files for almost two years. 

My impression from the bits and pieces we have is that Vale has been actively assessing the adequacy and capacity of its entire tailings portfolio  for about 9 years.  Mainly, it seems,  they were looking for the lowest cost path to creating tailings capacity  for a planned 50% output in production by 2023. The oft referenced document that may have been Reuters document and which is reported to estimate the cost of a failure at  $1.5bn potential damage is likely Vale’s effort to prioritize financial risk to them in the event of failure and not a stability analysis of assessment of likelihood of failure. ( interestingly $1.5 b is what government officials demanded Vale put aside.  Could be coincidence?)

We know that  Vale says no depositions were made to Dam 1 for 4 years ( but aren’t clear when mineral production at Corrego d Faijao ceased).

That kind of assessment is not a risk assessment..it is not an assessment of risk of failure or present stability nor does it normally refer to specific failure conditions or problems known when the possible cost of a “worst case scenario” failure is calculated.

We are just beginning to post what we see at our web page specifically for the Corrego do Feijao Dam 1 failure. and we have formed no conclusion as to what Vale’s Board, its engineers, its consultants or the Government of Minas Gerais actually understood about the extreme vulnerability of this dam some time before its final collapse.

What would make that clear is the actual factor of safety measured for the dam over the last 10 years and an assessment of the quality of that analysis by experts.  To my knowledge, the government of Minas Gerais has not made public any of what it has apparently accepted as evidence of satisfactory stability.

Whatever it may have said in Brazil’s or Minas Gerais’ law there is a universal standard that a high hazard dam should be designed and maintained to minimum factor of  safety of 1.5.   On the part of any engineer  whether Vale’s or consultants there is a due diligence duty beyond  law to know that and apply that.  So far we don’t see that that happened.    An engineer who holds a license  and expects to keep it could never assert stability for a high hazard dam if they could not confirm a factor of safety of 1.5 or greater.

Brazils Law has since 1993 required that as a minimum standard.  Both the TUV SUD 2017 and 2018 confidential report to Vale on Dam1 stability confirmed FS >1.5 in drained condition.  The law then in effect in Brazil as revised 2017 required that the FS consider both drained and undrained conditions.  TUV SUD in both reports found undrained  FS <1.3 but asserted that the dam was not susceptible to failure by static liquefaction.  These were both the public reports filed as required declarations of stability.

It is very likely , and seemingly apparent, that neither TUV SUD nor Vale’s inhouse geotechnical staff are up to date on what currently constitutes best knowledge on static liquefaction.  Neither is Brazilian Law as of 2018.

I have copied all press who have been reporting on Brumadinho as a caution not to cite that Reuters claim as fact until people of  authority and knowledge  have vetted what that document actually was and what it means.

A 2010 thesis by Vale Engineer Washington Pirete and a later version of that in a published paper were both about using Dam1 as a case study to develop an estimate of static liquefaction trigger.  Their finding of complete resilience to failure , per their trigger, is not in fact the same thing as an accepted stability analysis but it appears Vale’s technical staff  and perhaps the Board itself may have believed  this was a certification of stability. That is not clear.

We  are posting at our web page what is authoritative and clear an describing what is not yet clear. I hope as you  continue to over the Brumahindo  you will check in there and see where things are.

February 15, 2019 Stonington Maine ( Revised  March 15,2019)

Lindsay Newland Bowker, Executive Director

World Mine Tailings Failures

compiler@WorldMineTailingsFailures.org

http://www.worldminetailingsfailures.org

01 207 367 5145

Posted in Brazil Tailings Dam Failure Risk, Brazilian Mining Law, Brumahindo Dam Failure, Catastrophic Tailings Failures, financial risk and public liability, Linhares Civil Action Against Samarco, Minas Gerais Mining Oversight, Mining Regulation, mining resident engineer qualifications, Mining Risk Management, Public Liability & Financial Risk, Tailings Dam Risk Management, tailings dewatering, Tailings Failure Public Consequence Index, Uncategorized, Vale SA. | Leave a comment

THE VENERABLE TODD MARTIN & OTHER AMEC ENGINEERS FACE DISCIPLINARY INQUIRY ON MT POLLEY A time for Examination & Discernment For Needed Changes To Governance

CONTACT Lindsay Newland Bowker, Bowker Associates Science & Research In The Public Interest LNBowker@BowkerAssociates.org 207 367 5145

September 27, 2018

https://www.ctvnews.ca/mobile/business/three-engineers-to-face-disciplinary-hearings-in-mount-polley-disaster-1.4110941

 

This is good news indeed to have this focus on a key aspect of  the events leading to failure at Mt Polley..the  AMEC team ‘s rejection of MEM’s insistence that the original slope be restored and the construction of the rock wall that was part of Knight Piesolds original plan be undertaken( as I recall..I am writing this from memory without re reference to all the original documents).

Knight Piesold the original designer of the center line plan for Mt Polley did not concur with the deviation in slope which resulted from the discovery that the material  from the superficially vetted  reopening plan had too much PAG material to provide for the original flatter more stable slope.  Knight Piesold objected to continuing that slope and had raised issues  about the stability of the dam insisting on a stability analysis.

Knight Piesold , as they had done at one other famous tailings failure resigned stating the clients refusal to follow the advice given.( I have and will excavate from my files the identical letters Knight Piesold wrote for both).The engineering services contract was awarded to AMEC a company with a formidable reputation for quality engineering and professional integrity including the celebrated and oft cited Todd Martin who is included in this professional conduct review.

AMEC, as I recall, was undergoing a huge global expansion at the time and issues were publicly raised  about the “junior” caliber of the team they assigned to Mt Polley.  The engineer in charge , per AMEC’s corporate action , Laura Fidel, is also a central figure in this disciplinary investigation which describes her as having no experience whatsoever in tailings design and management.

It is in the public interest that this decision is being reviewed as a matter of professional conduct in the context of a professional accreditation process that the public relies on for safety and soundness of all structures.

Engineering, like all professional services not only implies,but relies on,the training and experience to create innovation working from the established body of practice and study but going soundly beyond  to new approaches addressing previously unsolvable problems.   In mining, the role of the engineer , the experience and qualifications of the people focused on the specifics of each deposit is critical  as no two deposits are alike in composition and setting. The experience and standard of conduct of the engineering team  including, as Geoff Blight often emphasized, a thorough command of available technology and its appropriate use  is the entire underpinning of  “the public interest”.  A name like “AMEC” and highly regarded frequently cited in tailings research  engineer Todd Martin’s senior engineering position in that firm  has great weight with regulators, with the public, and in the community of professional engineers globally.

What came from AMEC’s involvement,according to the documents referenced and presented in the Mt Polley panel report, was AMEC’s defense of  Imperials disagreement with Knight Piesold even to the point of  objecting to the measures MEM had recommended in the interests of safety..the construction of the full retaining wall and , the return of the slope to its original design .

The auditor general’s report maintains that MEM had authority it didn’t use to insist  but without offering defense or excuse I can understand as a career public official  and advisor a reluctance to challenge a company as venerable as AMEC with a senior engineer as famous and highly regarded as Todd Martin.

It was Jack Caldwell’s now obliterated discourse post failure that first publicly named the inferior quality of the team AMEC put in place.

The dam design  was taken over by a British company that had no objective other than full time-sheets.  BGC had raided AMEC years before of its competent tailings engineers, and AMEC youth were left naked and beholden to computer analyses and bereft of shovel-turning expertise.  Many months before the failure, the joke at BC meetings was how BGC had gotten all the good tailings engineers from AMEC and how sad it was that the AMEC folk continued in honest attempts at what was not within their sphere of competence. ” Jack Caldwell

Jack wants engineering in mining to always be the best of what the profession of engineering is about.  His bombastic commentary at the demolished “I Think Mining” was almost always about ways in which engineers let the profession down or ways in which corporate structure and policy made it impossible for engineers to do what’s right.

This investigation is critical to restoring public confidence in the entire system of mine approvals and oversight. It is truly shocking if AMEC in fact assigned an  unqualified engineer as named Engineer of Record without adequate supervisory oversight and deeply troubling to have a name as venerable and as associated with tailings management standards as Todd Martin’s name is in a news headline like this but he does owe British Columbia and the world an explanation.  This was a critically vulnerable time in  the life of that already failing TSF.  The entire AMEC supervisory structure in place at Mt Polley  needs to be laid out and examined in detail. The refusal to follow MEM’s recommendations needs to be laid out and examined in the context of professional conduct and as importantly in the context of law & policy. Did MEM ever challenge Ms. Fidel’s qualifications or raise the issues of this investigation with AMEC?

I hope Jack gets no black marks for his commentary on the junior caliber AMEC assigned or on the absurd profile of the TSF as it was taken over by AMEC.  Even  a layman like me could see it was neither fish nor fowl in engineering design. Jack wants engineering to be what it should be in all situations. All engineers should want that and do that. The public interest relies on that.

The outcome that matters here isn’t what disciplinary action the famous and revered Todd Marin may face. What matters is a fuller explanation of how the system failed  so that we can better understand what we need to do to fix it.

The larger issue here in my mind is the brain drain in mining globally.  It is widely recognized  that there simply aren’t enough properly trained and experienced engineers to manage the estimated 21,000 tailings facilities globally.

This disciplinary inquiry is ultimately about one of the most serious global issues  in delivery of  community of origin security and the security of environments surrounding mineral extraction & processing  sites.  In theory young engineers working under people of Todd Martins caliber and folk approved by him as supervisory should satisfy the public interest.  How else do we expand the number of tailings experienced engineers?.

All professional services rely on  internship and residency as a mode of professional training and development: one senior person passing skill and experience onto many new entrants.  Ms. Fidels  alleged lack of training and experience is not per se an issue if the supervision and oversight was there but at the same time anyone holding a title and performing services in accordance with that title must have the qualifications  to perform those services and make decisions in the field.

It is important for future safety not to gloat and point fingers at those under investigation nor  to just rejoice that someone is being held to account.  If we are going to meet the very serious elevated risk at mineral extraction and processing  sites around the world we must follow and listen to these proceedings with a view to understanding how we fix the mining brain drain and what qualifications standards must be in law and regulation.

Here are the actual Notices of Inquiry

Todd Martin

LAURA FIDEL

Stephen Rice

 

 

Stonington, Maine

**** Additional Links & Info****

 

 

Michael Davies, Todd Martin & AMEC challenging the Knight Piesold Requirement for a rockwall in 2007

 

 

Click to access MP10035_2007-02-23_AMEC_2007%2002%2023%20Dam%20Safety%20Review%20Follow-up%20%28AMEC%29.pdf

 

The entity bringing the charges of negligence & professional misconduct describing the investigation that lead to this announcement on September 25,2018.

At this stage, the allegations have not been heard by a disciplinary panel and are unproven.

The investigation was led by a 3-person subcommittee of senior professionals from Engineers and Geoscientists BC’s Investigation Committee. During the course of its investigation, the subcommittee received more than 13,000 documents for review, including contracts, reports, correspondence, and daily site reports. In addition, it considered the reports resulting from other public investigations conducted by the Independent Expert Engineering Investigation and Review Panel and the Chief Inspector of Mines.

https://www.egbc.ca/News/News-Releases/Mount-Polley-Disciplinary-Hearings-Announced

 

The British Columbia Engineer & Geoscientists Act under which the investigation was conducted and the hearings noticed to the three engineers at AMEC

http://www.bclaws.ca/civix/document/id/complete/statreg/96116_01

 

Duties and objects of the association

4.1   (1)It is the duty of the association

(a)to uphold and protect the public interest respecting the practice of professional engineering and the practice of professional geoscience,

(b)to exercise its powers and functions, and perform its duties, under this Act, and

(c)to enforce this Act.

(2)The association has the following objects:

(a)subject to subsection (1), to uphold and protect the interests of its members and licensees;

(b)to establish, maintain and enforce standards for the qualifications and practice of its members and licensees;

(c)to promote the professions of professional engineering and professional geoscience.

 

Disciplinary inquiry

32   (1)[Repealed 2007-8-34.]

(2)On receipt of the investigation committee’s recommendation under section 30 (9) or (10) for an inquiry, the discipline committee must cause an inquiry to be held before it by causing written notice of an inquiry to be personally served on the person who is the subject of the inquiry or, failing personal service, by leaving the notice at, or by mailing it by registered mail to, the person’s last address on file with the association.

(3)Notice under subsection (2) must be given at least 14 days before the inquiry unless this requirement is waived by the person who is the subject of the inquiry.

(4)The notice must include all of the following:

(a)a statement of the time, place and purpose of the inquiry;

(b)a reference to the statutory authority under which the inquiry will be held;

(c)a statement that if the person who is the subject of the inquiry does not attend the inquiry, the discipline committee may proceed with the subject matter of the inquiry in that person’s absence and make findings of fact and its decision without further notice to that person.

(5)In the event of nonattendance of the person who is the subject of the inquiry, the discipline committee, on proof of service of the notice under subsection (2), which proof may be made by affidavit, may proceed with the subject matter of the inquiry in that person’s absence and make findings of fact and its decision without further notice to that person.

(6)The discipline committee, or any member of the discipline committee, may issue a subpoena for the attendance of a witness at an inquiry and for the production of records by the witness at the inquiry.

(7)Failure of a witness to attend or produce the required records makes the witness, on application by the association to the Supreme Court, liable to be committed for contempt as if in breach of an order or a judgment of the Supreme Court.

 

 

 

Posted in mining resident engineer qualifications, Mt Polley TSF Failure, professional misconduct inquiry of 3 AMEC Engineer at Mt Polley, Todd Martin, Uncategorized | Leave a comment

Herbert Hoover& The Birth Of Mining Finance Globalization

An exercise of scouting a preliminary list of mining history’s most important books, documents and manuscripts  has been a fascinating journey.  Technology advances but the fundamentals of “extraction” are eternal in all cultures for all time.  Those eternals play out over and over across the millennia.

Take for example, Herbert Hoover’s first overseas assignment and the “misunderstanding” with the Chinese government  a story that still plays out in one form or another everywhere.

Mr & Mrs Hoover

Hoover had negotiated the deal with China in good faith .  His employer without consulting him  made changes they felt were essential to preserving access to capital on London exchanges needed to develop the project.  Hoover went along to get along.
Chang [Yen-mao] described the circumstances under which he signed the deed…. He said he repeatedly refused to sign... its terms did not agree… with his agreement with [Herbert] Hoover. Upon being told by Hoover that the deed was merely meant for the purpose of registration in England, and that the memorandum would be the ruling instrument, he eventually signed… with reluctance….
Chang told in detail of… threats… by Hoover… that the mines would be confiscated by the [European] Allied governments and that he and the Chinese stockholders would get nothing [if he did not agree to the terms]….”
Ouch!!!
Yikes!!!
This is the future President of the United States Mr Chang is testifying against in complete truth alleging a bait and switch.
After maintaining in court that he was not aware of the changes that had been made until he got back to London  it came out in court that he was aware of the changes, argued with his employers for preservation of the terms he & Chang had agreed on, but did not insist or even ask that changes be made to reflect the deal he had negotiated with Chang.
Hoover admitted that he had not asked de Wouters to alter the letter, or not to send it, but insisted nevertheless that he was not in accord with de Wouters on this point and that the letter did not correctly represent the situation.
The China deal gave Hoover a ginormous salary that made it possible to ask his brilliant fellow geologist wife to marry him. 
They shortly  left China returning to an elegant mansion in the heart of London where together they translated  De Re Metallica( Giorgius Agricola 1556 ( George Bauer latinized).
220px-De_re_metallica_title_page_1556
Mining was a great love of Hoovers  in that sort of cowboy appeal of adventure, camels, horses in wild  far away places, the hunt for the hidden .
I expected to see Hoover’s stamp on U.S. mining law & policy but after De Re Metallica he turned to civic duty and public affairs and at least as far as I have gone I see no Hoover stamp on US mining policy.  He was very concerned though with efficient and reliable global and international markets.
And so it goes.  A history untold and little referenced but  very much present in the headline news on mining today including the rise of nationalism the drama around unmet expectations, uncompensated losses, and the  BHP investor law suits and the lingering  unresolved $47.5 bn damage claims.
Lindsay Newland Bowker, Stonington Maine , August 13,2018
LNBowker@BowkerAssociates.org
Posted in BHP Investor Lawsuits, De Re Metallica, Herbert Hoover, Mining Finance, Nationalism, Uncategorized | Leave a comment

BHP INVESTOR LOSSES BRAZILIAN LAW & NAVIGATING NON OPERATED JOINT VENTURE LIABILITY EXPOSURES

Contact : Lindsay Newland Bowker LNBowker@BowkerAssociates.org      Date July 27, 2018

Brazilian mining law wants foreign investment but not foreign owner control of its mineral resource extractions. From a liability point of view Brazilian law sets up a circular firing squad in the context of the two investor lawsuits against BHP, one still active one recently settled with no admission of liability.  They want foreign investment. They need the exchanges for the equity capital to develop and operate its large mines but they place themselves and their citizens ahead of the interests and protections of the individuals  and institutions who provide the essential equity capital.  (Sounds good but it hasn’t done well protecting its citizens either). Brazilian law explicitly states that the settlement of its demands is without regard to impacts on investors.

This sets up a drama that may ultimately not serve Brazil well with current and future investors when the specific provisions of its law come to the fore in the context of the still active Australian Class investor  action suit . ( Just days ago the earlier filed New York suit was settled without admission of liability by BHP for $50 million  precluding the requested jury trial in which the issues discussed here may have come to the fore).   There is a moral tale here too for nationalism in general and for aggressively protective but not ulitmately effective local law ( eg the well aimed but very poorly framed Sierra Club “Prove It  Statute in Wisconsin).  All mining these days takes place in a global context of available capital and a dwindling cadre of well trained technical resources. All national and local laws operate in a context of international or other law that has its own standards and remedies. 

The fatal flaw in Brazils structure with respect to attracting that foreign capital is that it expects to be able to successfully separate responsibility and control, a fatal flaw at  the “get go” in terms of sound risk management.

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Source ASX BHP Price July2015-July2018

“BHP chairman Jac Nasser told shareholders at this week’s BHP Billiton AGM: “This year will go down as one of the most difficult in [BHP’s] 130 years.” Not only is BHP facing vastly reduced commodity prices, since the disaster investors have heavily sold down BHP shares to the level of ten years ago.”The Conversation.com November 2015

THE SEPARATION OF RESPONSIBILITY AND CONTROL  UNDER BRAZILIAN MINING LAW

Under Brazilian law the 50%-50% joint ownership of the Samarco, makes BHP a “silent /deep pocket ” partner forbidden by law to have any management control.  Brazilian law does not limit liability to the ownership percentage of a joint venture.  Which ever partner can pay does pay if a partner or the owned subsidiary can’t. Brazilian law  supersedes whatever agreement Vale & BHP may have. It is structured to insure the government and Brazilian citizens  are held harmless and reimbursed even at the peril of value to all investors, a specific provision of Brazilian law. ( a provision potentially essential to all mining law but only in the context of an entire legal framework that actually works.   At the scale of $50 bn in claimed damages,  BHP’s investors are as at risk as Vale’s.  Their exposure may even be greater than Vale’s as BHP is the deep pocket in terms of revenues and market cap. (  Vale has a current cap of $us76 bn.  Samarco in essence no longer exists).

“Corporate and industry reputations are big losers. It is estimated the disaster has affected 15 million people. “The Conversation.com

Under law only Vale, the “native” Brazilian company  was allowed any management control. To complicate matters  further with respect to BHP’s opportunity to manage its liability exposures in the deal within the constraints of Bazilian law, Vale was found by the government to have actively contributed to the failure through unauthorized use of the Fundao for deposition of their own high slime tailings from their adjoining facility. It is not clear whether this arrangement was disclosed in the JV agreement but it was right there in the plans and specifications for the Fundao: a direct pipeline for deposition from the Vale site as needed. It seems impossible to believe BHP was unaware, that they would not have had “their people” at least review the mine plan.  If I were advising a JV partner  in this situation I would have built in specific compensation from Vale  for the benefit of that use and required an enforceable  hold harmless and indemnity  from Vale for all losses and damages raising from operations. As Risk Manager for BHP I would have insisted on a right to independently assess all inspection reports and consultant reports including the ITRB and I would have insisted on a “buy out” escape hatch.  ( I would have invoked it at the point Vale approved the go ahead on the Samarco expansion fully aware there was not adequate capacity at the Fundao and that there was capacity on site and no viable plan to create capacity.)bhp2

The Conversation.com November 16, 2015 “Samarco Mine Costs Will Make For More Than One Difficult year

In effect, under Brazilian Law the lion’s share of damages could accrue to BHP and at the levels at issue, a total of $50 bn that will continue to have a major impact on BHP as a whole until the payment arrangements and amounts are firmly settled.  Even behemoth BHP is not big enough to absorb the lion’s share of a $US50 bn legal demand for payment. The Investors in the US  settled for only $US50M. Australia represents a demand for another $US25bn (more or less).  BHP’s market cap is only $US133 bn.  Even at 50% of Brazil damages the combined total  arising from a basically insignificant operation (in the scheme of revenues from the  whole BHP portfolio ) presents liabilities which are as much as 38% of present market cap.   That in turn will have, and has had, a major impact on the value of BHP shares. Investors have in fact been, and will continue to be, under the shadow of the Fundao failure for two more years  or until BHP’s share on the $US50bn in Brazilian damages is resolved in law.

“Last month, the company reached a deal with Brazilian authorities to push back a $47.5bn civil lawsuit for two years while both sides negotiate a settlement”.

 

A circular firing squad.

Some shots already  fired.

Some wounds already suffered with slow and incomplete “healing”.

The recently announced  Australian class action suit against BHP estimates $AU25billion in ASX investor losses between November 5th, 2015 ( the date of the largest mine failure in recorded history ) and November 30th, 2015, the period of the class action claim brought by Phi Finney McDonald. The insert chart above shows both values and volumes traded. Of course this suit and the now settled American parallel are under applicable securities law and have nothing to do with Brazil’s laws and structure.  However, the generic standards for adjudication of investor lawsuits don’t work well for mining especially when paired with a legal structure such as exists in Brazil. In the U.S. version of the BHP investor suit the ruling disallowing a fraud charge under section  was based in part on assumed control by BHP when in fact Brazilian Law specifically disallows control by foreign owners.

If the non control provisions of Brazlian law are  found to constitute a complete defense for BHP under security law, investors are possibly squeezed out again.  All  await the outcome of both the US and Australian investor suits.

The structure of law determines the structure and path for a cause of action .  Both the U.S. & Australian class action investor suits rely on similar securities law requiring immediate continuous disclosure ( not just waiting for the next annual report or quarterly review) of material adverse conditions which might affect value. In the US case under US law the standard for a securities fraud claim requires that:

the plaintiff sufficiently alleges that the registrant had ‘actual knowledge’ of the relevant trend or uncertainty. [A]nalysing SEC guidance, the court held that the regulation requires disclosure only if there is a substantial probability that the trend or uncertainty would come to fruition and that such occurrence would have a material impact.

The fraud charges  (in a very flawed ruling) were rejected but other elements allowed to stand in the US proceeding.

The total liability just from the governments Brazil damage claims and the two investor lawsuits ($us100 bn more or less ) represents about 1/2 of the combined market cap of these two top 40 behemoths ($us200 bn more or less).  The two active suits will drag on for some time.  Hard to put a smiley face on the situation for either Vale or BHP, for their investors, for the displaced and made homeless, for the survivors of the 19 killed, for the long term loss of livelihood, for the irreparable generational  loss of essential natural resources.

Sticky Wickets of Securities Law Applied To Mining

“Substantial Probability” and “material impact” are the sticky wickets of securities law when applied to mining.  It is hard to even a imagine  that a plain vanilla interpretation of these terms could be contrived or applied to mining even though the history of the TSF from its failure at opening and over its entire and short life continuously built to a fully formed fatal event months before the actual event according to the miners own commissioned cause of failure report.  Even though it was known a failure would wipe out Bento in minutes and cause massive damage.    Even at the moment the failure was fully matured,  if asked, a Vancouver mining consultant would likely spout some ridiculous non applicable probability theory “demonstrating” that the probability of failure was less than 1 in 1million. MAC would back them up. ICMM would back them up.  No one in court would know enough about Poisson Distributions and probability  theory to know it only applies to “acts of god” , to truly random events not to  the cumulative and inevitable results of ignoring one warning  after another, making one decision after another not in line with best knowledge or best practice. All would be wrong but it wouldn’t matter because securities law doesn’t match up with mining realities and no one involved in  a securities action knows beans about probability theory or poisson distributions….or mining.

Securities law standards on breach of duty to investors just don’t work for mining.

Investors again will most likely get the short end of the stick.  That is already suggested in the $US50 M U.S. settlement.

The BHP Billiton opinion [in the NY case] may be found in BHP Billiton Limited Securities Litigation, 276 F Supp 3d 65 (SDNY 2017). The case is currently in the discovery phase.

The recently announced Australian investor class action suit relies on similar provisions in securities law has has similar vulnerabilities when applied to mining sector investor claims.

The PHI Finney McDonald suit, financed by the same party bringing the US investor suit (G&E KTMC Funding).will allege that BHP knew, or should have known, there was a significant risk the dam would collapse as early as October 2013. Despite knowing this information, BHP failed to ‘immediately disclose’ this risk to investors as required under § 674 of the Corporations Act 2001 (Cth) (the Act) and Australian Securities Exchange (ASX) Listing Rule 3.1.

The complaint will also allege a claim against BHP for engaging in misleading or deceptive conduct contrary to § 1041H of the Act.

In this post we are mainly focused on how Brazilian mining Law  played a role in events leading up to the failure  and failed to bring about a timely and effective  mobilization  in response to the failure.  Arresting executives as “environmental criminals” doesn’t help villagers who have lost everything.

The effects of Brazilian Law on the standing of investors  to recover actual losses is not insignificant and should not be minimized or overlooked.  Equity capital raised though the major exchanges is essential to  production of the minerals the world actually needs to function. Those acquiring equity need to know that the company is responsibly managing all risks that may affect value.  How the SEC  and Australian counterpart apply securities law to the BHP investor suits could further chill investor enthusiasm for the metals sector and the outcome may point to a need for exchanges to revise standards as applicable to minerals extraction and finishing.  BHP’s defense will obviously cite their legally  limited role as a “silent partner”.

Brazilian Law serves Brazilian government interest very well  or rather aims to do that above all else but it may end up working to shield BHP from accountability to investors .   It has already failed its people and failed the environment.

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Financial Review 2016

Brazils law and BHP’s corporate approach to the unique liability it created for BHP and its investors are co responsible for whatever economic damages ultimately accrue to BHP. Separating responsibility and control is never a good idea in risk management /loss prevention terms yet there were at the outset remedies possible within the terms of Brazilian Law that would have reduced BHP’s total liability and better protected its investors.  In fact  belatedly BHP has initiated an Non Operated Joint Venture Program policy that does that.  It applies to BHP’s other existing non owned joint ventures Antamina, Cerrejon and Resolution and will apply to the vetting of any new positions where responsibility  and control are separated ( mining by contractor..also not a sound idea in risk management terms).

 

BHP SPECFICALLY RECOGNIZED INVESTOR & CORPORATE LIABILITIES IN NON OPERATED JOINT VENTURES

 

Although it is not referenced in the particulars of the present investor class action suit by Phi Finney McDonald  on behalf of  a class of 3000 investors, BHP did recognize the liability of the arrangement could be extensive for its investors and for the company as whole.

Up to and including the Samarco failure BHP recognized the liability and exposure of NOJV’s but did nothing about it.

 

Our non-controlled assets may not comply with our standards. Some of our assets are controlled and managed by joint venture partners or by other companies. Some joint venture partners may have divergent business objectives which may impact business and financial results. Management of our non-controlled assets may not comply with our management and operating standards, controls and procedures (including health, safety, environment). Failure to adopt equivalent standards, controls and procedures at these assets could lead to higher costs and reduced production and adversely impact our results and reputation.  Risk Factors 2009 annual report https://www.bhp.com/~/media/bhp/documents/investors/reports/2009/annualreport2009.pdf?la=en pdf p 12

 

Some of what the new program aims at will help avoid getting in another hole as deep and dark as BHP embarked on with Samarco and Vale.  But it also shows BHP had plenty of room within Brazilian law to protect investors and excercise more influence to protect Bento and the entire downstream community.”2018 non operated joint venture oversight https://www.bhp.com/our-approach/operating-with-integrity/non-operated-joint-ventures

“Non-operated minerals joint ventures

Our non-operated minerals joint ventures include Antamina (33.75 per cent), Cerrejón (33.33 per cent), Resolution (45 per cent) and Samarco (50 per cent).
Following a review of governance at our non-operated minerals joint ventures (NOJV), we have focused on the following actions.

Risk management and processes: a global standard has been developed that defines the requirements applicable to all of our NOJVs. These minimum requirements are consistent with BHP’s standards for our operated assets, and establish a framework for identification and management of NOJV risks, including identification of governance risks. We are working closely with our NOJV partners to establish priority areas, communication strategies and work plans in line with this global standard.
Accountability and structure: the management of all of our NOJVs has been centralised in our Minerals Americas asset group. We have created a NOJV leadership team and supporting team, who are a single point of accountability with responsibility for all NOJVs.

People: we have added to the capabilities of our teams to manage the risk and opportunities at each NOJV. Further resources have been allocated to provide functional support, and for projects, governance, and planning. This dedicated NOJV team of subject matter experts provide support to the NOJVs, enabling strong management of risk and performance and contributing to discussions on governance improvement and value generation opportunities.

Our focus for FY2018 is on our governance processes for NOJVs, including:

  • reviewing the effectiveness of risk management processes to drive improvements and share good practices;

    ·further development and implementation of specific standards for NOJVs, based on best-practice governance benchmarking;

    ·         improving governance and assurance processes across the NOJVs”.

Sounds great on paper and would endorse as an essential strategy for all non operated joint venture positions.  Certainly every non native  JV partner  in Brazil mines needs this.

The details and the effectiveness lie in the implementation not in the words, however. On that no details as yet.

 

WHAT DID BHP KNOW & WHAT DID THEIR AGREEMENT WITH VALE PROVDE AS REMEDY

It has been assumed and argued by NGO’s and claimants and critics that because BHP  had a representative on the Board of Samarco that it was fully aware of all the events that created, incubated and finally matured to the largest mine failure ever in human history.  Having served on a few boards (Government Regulation and professional society), I know that Board members get what the corporate body thinks is needed to keep them from getting in the way or to secure a positive vote on a particular issue.  Board members are not part of the day to day deliberative process. They don’t automatically see all information known to the operators & managers.  But on all boards I have served on, it is possible to get any records requested and to have influence, even decisive influence on how that information should be acted on.

It is reasonable to assume that BHP always had the right to review any documents, see the ITRB reports, Inspection reports, opinions of outside consultants etc. BHP is doing that now for all non-operated joint ventures.  It seems it just didn’t think to do that in the course of co ownership of Samarco up to the date of failure.

BHP’s revenues less acquisition cost less judgments will make the project a huge net loss.

Having explicitly recognized the liability to the whole company and to investors, in risk management terms BHP  committed an error of mission in not doing what it could all along to protect itself and investors.

 

 

Not knowing is not a defense in common law.

Not having management control is not a defense

It had a recognized liability of acknowledged large consequence.

It took no action to reduce or eliminate the risk.

Not knowing is a defense, possibly, in securities law.especially as Brazils law forbids BHP’s management control or direction.

There is no place to hide terms of justice.

There is no large ground on which to launch a defense asserting there was nothing BP could do to affect the outcome.

Depending on how it is framed, the particulars of the Phi,Finney McDonald may give them considerable ground as it reportedly asserts witholding of information on warning signs about the dams condition.   The negligence seems rather to be BHP didn’t ask or care even though it had specifically acknowledged the liability in its annual report.

The key issue, it seems to me, was in what they chose not to know or try to effect.  But that may not be at issue in the lawsuit.

Depending on the particulars, BHP may have a winning defense.on that one at least.

 

WHO IS SERVED BY BRAZILIAN LAW

I just peer reviewed a paper mapping how many suits have resulted from the Samarco failure, through what avenues within law these suits and claims have been advanced and against whom.  An important endeavor because as we see Brazilian Law did not work at all to prevent a completely preventable loss. (In that article I saw no reference at all to suits against the government)  (We frequently say “all tailings failures are failed public private public partnerships”)

Brazilian Law clearly has not worked to mobilize relief and restitution for an entire village decimated by the wall of fast moving sludge & debris and soils pulled into the flow by its force. It took three years just to get the long demanded, long resisted upfront $US5 bn mobilization money agreed to and paid, the bulk of that to the Renovo Foundation under miner control not to help claimants directly.

We are three years past a responsible reasonable mobilization & response effort.

The law, created in 2010 as part of privatization of its mineral sector, did do very well protecting Brazil itself against abandonment through bankruptcy or otherwise:

 

(1) Brazilian law does not allow transfer or dissolution of property that has an unresolved ,unfunded public damages.

Every wise legal framework should have his same provision

(2) Brazilian law asserts joint and several liability that extends to non-operated JV partners .  Liability does not stay with some single purpose subsidiary easily just extinguished by bankruptcy.  The bankruptcy of a subsidiary does not extinguish parent company obligations. (Every  mining statute should have that provision)

(3) Brazilian Law asserts strict liability when extensive damage has occurred.  There is no defense.  The financial responsibility is complete and without recourse ( can’t endorse that one as written but a version of it could and should be crafted consistent with common law principles and established case law on strict liability e.g. on facilities with a high hazard rating)

(4) Brazilian law forbids foreign control but recognizes it is deep pockets and foreign dollars needed to develop Brazils’ resources.  It is a have your cake and eat it too statute. We don’t endorse or recommend that.  The objective should be to attract the brightest and the best for all operations.

(5) Brazil holds itself harmless under law from any and all damages arising from a mining operation ( ie it transfers 100% of liability to owners whether controlling or not. We don’t recommend or endorse that.  The first obligation is to its people.  If it is necessary to lay out fund for the protection of its people especially an entire displaced  village..that should come first.i

All of this is at work and not helpful to BHP in getting out from under what could end up being the lion’s share of damages.  The total even on an equal 3 way share makes the whole venture a huge net loss.

We shall see.

 

 

Posted in BHP Investor Lawsuits, Brazilian Mining Law, Fundao Talings Dam, Linhares Civil Action Against Samarco, Non-Owned Joint Ventures, Phi Finney McDonald, Samarco Dam Failure, Samarco Environmental Crimes Investigation, samarco failure government findings, Uncategorized | 2 Comments