Herculano Mine Partners Indicted on First Degree Murder Charges For Worker Deaths In September 2014 Tailings Dam Failure

The indictment, announced December 16, 2015 is for  continuing to place tailings in a dam that was impaired , had already reached its capacity, and no longer was licensed to receive tailings. Findings also reference failure to notify authorities of the failure and providing false information to officials.
 herculao dam failure_
Reuters Photo Immediately After  Failure
The new  B4 tailings dam was to receive all tailings waste from a mine expansion as of 2010 but developed problems in 2014.which precluded its continued use. Apparently  without authorization  or technical independent review the company started using the compromised B1 again.  ( The  Bing Translation of the above news source refers to construction of a series of 4 holding bays within the unlicensed B1) An  official  government document rescinding  Herculano’s authority to mine,  refers to google earth photos showing unauthorized construction to “increase the height of the B1”, the phrase produced by the web translator.
The hastily modified B1 tailings dam  failed due to saturation caused by inadequate drainage according to a technical report prepared by the Institute of Criminology.
The finding was that Herculano executives were fully aware of the dlminished capacity of the dam and the risks and of  the consequences of failure and nevertheless assumed the risk .  Under Brazilian law that constitutes criminal intent ( according to the awkward Bing Translation).
We are not well steeped in Brazilian Law and  any evaluation based on a Bing translation and not in properly translated actual technical and legal documents is inherently limited . This sounds, though,  very much in line with common law as  it applies and governs most court cases in the US and Canada. Unless modified by statute ( there have been some fiddles in Canadian Law for mining) strict liability” applies to all inherently dangerous activity.  The activity may not be prohibited by law or regulation or  explicitly prohibited by the  terms of a permit but any damages accruing from its undertaking are “negligence per se”. There is no defense in tort.  The fact of the ultra hazardous activity and the fact of the resulting damage constitute.a legal accountability for all consequence.as in defective product torts.
That this is a criminal indictment implies that the  ultra hazardous activity was undertaken in a reckless manner and/or that the decision itself to use the dam in such a condition was de facto reckless. Strict liability in the context of criminal charges does not require a proof that that any intent existed with respect to the consequence ( in this case, the death of the  B1 workers).   The description of charges and findings suggests that what has been applied in Brazilian Law is very similar to ,if not exactly in conformance with, a criminal strict liability charge.
 herculano dam break photo 2
 Reuters Photo 2010 Immediately After B1 Failure
Pattern of Pushing Tailings Dams  Beyond Safe Capacity & Use Very Clear In History of Catastrophic Dam Failures
Bowker Chambers 2015 ( The Risk, Economics and Public Liability of Tailings Storage Facility Failures pointed to the pattern of production needs and aims trumping tailings dam safety as a recurring and significant theme in the history of catastrophic tailings dam failures 1910-2010.  Several modern catastrophe’s including Samarco,  Mt Polley and this failure  occur as a result of aggressive mine expansion plans that do not have accompanying adequate waste management plans or capacity.  Herculano Mineracao Ltd. had received licenses for a major expansion in 2013.predicated on the capacity and future expansion of the B4.

“In fact this is the pattern we see on close examination of Very Serious and Serious failures; older TSFs with smaller footprints are pushed to unplanned heights to accommodate additional production that was not anticipated when the tailings dams were originally designed and the permits originally  issued.. Capital markets and investors don’t finance clean ups. They finance production that is profitable. Smaller companies operate on tighter margins within the same overall metric affecting all miners but are less able to take advantage of and finance optimizations or achieve economies of scale that will keep production costs low enough to maintain a specific mine site as economically feasible.

Our sense of the data, and the case histories we have looked to for a deeper understanding of the data, is that “mining economics” plays  a significant role in TSF failures. It is important in permitting, and in the checks and balances built into the regulatory process over the life of a TSF, to look beyond “mechanisms of failure” to the  fundamental financials of the miner, the mine, and mega trends that shape decisions and realities at the level of miner and individual mine.​”

​The November 5, 2015 failure of the Fundao  at Samarco’s  Minas Gerais mine in the Alegria Complex also  fits this pattern.  They elected to go forward with a major expansion without adequate TSF capacity and without any plan for achieving this capacity  They were fully aware from a failure analysis that a failure of the Fundao would wipe out Bento Rodriquez in a matter of minutes and elected to take the risk with no peer review  based on an undisclosed mathematical model indicating a low probability of failure..( This according to Jack Caldwell and a recent source in Brazil who had been consulting engineer on the dams through 2012)
Technical Details on The Herculnao & Most Catastrophic Mine Failures Hard to Come By
Jack Caldwell first reported this tailings dam failure  of September 20, 2014   at his now   silenced and completely obliterated   mining blog,” I think Mining.com”. At the time  neither Jack nor any of his 5,000 regulars and handful of commenters myself included, could find any data at all on the failure.  It took a year to turn up in WISE as part of their compilation and the details needed for the Bowker Chambers 2015 recompilation of WISE/ICOLD data elements   and for meaningful further statistical analysis are still sparse: design dam height and slope, dam construction, year paced in service, design capacity, height at failure , run out and release all undocumented even after exhaustive and frequent searches in Portuguese and in English.
Most of these critical technical elements are also still not available on the Samarco tailings dams and its use of them .  The Germano Tailings Dam was supposedly closed in 2009 and the Santorem used mostly for water storage on top of some 12 million cubic meters of previously deposited tailings.  The Fundao, placed in service in 2009 was not capable of holding all the waste to be generated by the massive expansion Samarco planned nor was there adequate land space within the mine foot print to accommodate additional capacity but the expanded production nevertheless went ahead .   Over the life of the Fundao, 90 m high at failure, and an un buttressed upstream construction, the rate of raise had average 15. meters per year: pushing capacity by anyone’s reasonable definition.
Our rough estimate based on BHP’s SEC 20 filings to the Securities and Exchange Commission is that closer to 90 million cubic meters of wet tailings were produced since 2009. We can’t swear by our estimate yet and continue to polish it  but it seems very very clear far more than 55 million cubic meters in wet tailings was produced over the llfe of the Fundao.  Additionally we know now that Vale contributed about 2 million cubic meters per year to the Fundao. Where did all these wet tailings go?
Scope Of  Other  Damages At Closed  Herculano Mine
In December 2014 government completed a preliminary assessment of the scope of environmental damages caused by the B1 failure and negotiated financial responsibility agreement with Herculano Mineracoa Ltd for clean up and restitution.  An escrow of  was established  for work in 2015 in exchange for lifting the freeze on all Herculano assets.   Recovery is estimated to take 10 years.

The environmental damage caused by the accident at the dam Herculaneum Mining in Itabirito, Central region of Minas Gerais, is at least R $ 30 million. (Para garantir que todas as medidas de reparo e compensação sejam implementadas, o Ministério Público (MP) e a empresa firmaram um acordo no início deste mês e o valor, que já foi depositado em juízo, deve ser gasto em 2015. Em troca, a Justiça liberou os bens da Herculano e dos sócios da mineradora que estavam bloqueados.) To ensure that all repair and compensatory measures are implemented, the Public Ministry (MP) and the company signed an agreement earlier this month and the amount that has been deposited in escrow, should be spent in 2015. In return, Justice released the goods of Herculaneum and members of mining that were blocked.

(“Pode ser que o prejuízo seja ainda maior.) “It may be that the damage is even greater. (O que vai determinar a exata extensão dos danos é o laudo que está sendo feito.) What will determine the exact extent of the damage is the report that is being done. (Ele vai apontar, ainda, quais são as medidas necessárias a serem tomadas para recuperação da área”, explica o coordenador do Centro Operacional do Meio Ambiente (Caoma) do MP, Carlos Eduardo Ferreira Pinto). He will point out, though, what are the necessary steps to be taken for recovery of the area, “explains the coordinator of the Operational Centre of Environment (Caoma) MP, Carlos Eduardo Ferreira Pinto.”
 Bowker Associates has not been able to locate any text or summary of the referenced final report on damages and costs.  Herculano’s license to operate remains in suspension.
Tailings Management, Tailings Capacity & Processing Problems Long Term The Mine
 Compared to other Itabarites in Brazil generally and in MInas Gerais specifically, this mine had a  lower grade and characteristics which  challenged processing and resulted in higher processing costs.
Some details of this history are given in a technical report  on a magnetic separator which was introduced in 2010 to address some of the mines historic and persistent operations problems and associated environmental impacts.

In the historic mine, 40% of material extracted from the deposit was treated as waste and had an average iron content from 40 to 58% silica and about 30%, generating extremely high tailings volumes which the existing structures for containment themselves, were insufficient and caused major environmental impacts such as carrying of solid ravine on the edge, demanding – a big factor as to the monitoring of the dam, which was the limit of the quota and volume parameters, and so necessary licensing new areas and implementation of a new structure for disposal of waste produced.


This technical report also has a photo ( fig 3.9 pdf p 24) and some details on the dam: an upstream dam, 20 million cubic meter capacity ( in 2010), 60m high .  These are descriptor of a dam pushing the limits on  best knowledge, best guidance, best practice on upstream dam use.

The separator promised recovery of u to 78% of material which had historically been treated as waste  post concentrator. and therby better use and longer life  of tailings impoundments as well as lower overall production costs.

Interesting to note that the photo and focus on this 2010 report is of the failed  B1 whose license had already expired and whose full capacity had already been reached as is apparent in the photo.  The new dam, the B4, was supposed to be already in service but is not mentioned in this report on the magnetic separator.


The following is a web translation of the EIS and Enviornmental Damage Compensation on construction of the B4 which was to receive all tailings from the mine expansion totally replacing the B1.

The final mass of the dam has maximum height of 1,240 m, maximum height of 30m( e comprimento da crista superior de 360 m, sendo constituído de solos argilo-siltosos, 30m )and length of the upper crest of 360 m, consisting of silty-clay soils)compactados e protegidos por um sistema de drenagem interna (sistema extravasor do tipo )compressed and protected by an internal drainage system (overflow system of the type (galeria tubular, com diâmetro de 600 mm que irá subindo à medida que o maciço for sendo )tubular gallery with a diameter of 600 mm that will rise as the mass is being(alteado, atingindo em sua configuração final a cota de 1.240 m, em sua soleira. alteado)reaching its final configuration the height( believe this should be translated elevation) of 1,240 m, on his doorstep.( O sistema )The system(de drenagem interna é constituído de filtro vertical e um tapete drenante horizontal) internal drainage is constituted by vertical filter and a horizontal drainage mat(interligados e construídos com areia grossa e materiais de transição, sendo que este tapete) interconnected and constructed with coarse sand and transitional material, with this carpet (se estenderá à montante, e ainda o tapete vertical inclinado de forma a impedir ao máximo a )extend upstream, and still inclined vertical carpet to prevent the most of (saturação das faces á jusante). saturation of downstream will face.

It was the drainage system described  that failed in the B4.  Herculano, chose to continue processing  and use the unlicensed already full B1 without notice to or permission of the  regulatory authorities and also, apparently without any formal technical/engineering review of their ad hoc adaption of the B1. ( the construction of internal holding areas)

The EIS is dated 2013 but refers to a life of facility from July 27,2009 and anticipates a 6 year life/term of operation for the B4)  The cost is estimated at R$10.9 million (2009)


Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates Science & Research In The Public Interest

An Early English language report on the dam failure with Hercuano Mineraco’s public statement.   http://www.resourcereports.com/brazilian-tailings-pond-incident-claims-2-lives/

Essentially same account of indictment at Mining.com   https://translate.google.com/translate?hl=en&sl=pt&u=http://noticiasmineracao.mining.com/2015/12/17/socios-da-herculano-mineracao-sao-indiciados-por-homicidio-doloso-por-tragedia-em-itabirito/&prev=search

In Portuguese.the findings of fact.  Translation facility awkward but describes not just unauthozed use use but unauthorized major heightening of the B1 as confirmed in google earth photos. (lost this link will find and repost)


update in spring 2015 on damage assessment

action blocking reopening of socoimex steel mine impaired snce 2003




About lindsaynewlandbowker

Bowker Associates, Science & Research In The Public Interest, is an independent non profit providing self initiated pro bono analysis on key issues with a potential for massive adverse environmental impact . Bowker Associates has been an internationally recognized and cited voice in analysis of the Samarco failure, its consequence, and the possibilties for recovery. In 2015 Bowker Associates collaborated with globally respected geophysicist David M. Chambers to recompile global authoritative accounts of significant TSF failures in recorded history and to analyze these data in the context of gloal mining economics 1910-2010 ( Risk, Economics and Public Liability of TSF Failures, Bowker/Chambers July 2015) In 2014 Bowker Associates commissioned globally respected geophysicist and hydrogeologist Dr. David Chambers to undertake two technical works: (1) development of technical go no go criteria for vetting mine applications tp://lindsaynewlandbowker.wordpress.com/2014/01/05/a-new-statutory-regulatory-framework-for-responble-sulfide-mining-should-this-mine-be-built/ and (2) a case study of Maine's Bald Mountain, an un mined low grade high risk VMS deposit demonstrating the efficacy and accuracy of two risk assessment tools in vetting mine proposals https://lindsaynewlandbowker.wordpress.com/2014/02/28/mountain-x-would-you-issue-a-permit-to-this-mine/ In Maine, Bowker Associates has deeply engaged and been a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine, and Maine's revisitation of mining in statute and regulation... Our only “client”: is always “the pubic interest”. Our model is to focus on only one or two issues at a time so that we have a substantive command of the relevant field as our foundation for ongoing engagement. Our core work is in envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best models are also a major thrust of our work in building and evaluating public policy. Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmental Risk Management., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy. Appointed by Governor Mario Cuomo to New York State Banking Board (served 1986-1996); President New York Chapter Chartered Property and Casualty Insurers; Environmental Committee, Risk and Insurance Management Society; Director, Convenor/Co-Chair Bermuda Market Briefing "From Captive to Cats" Hamilton Bermuda. Published Articles of Significance The Risk Economics and Public Liability of Tailings Facility Failures, co-authored with David M. Chambers, July 2015 Beyond. Polarization: Superfund Reform in Perspective, Risk & Insurance Managing Risk For Loss Prevention & Cost Control (Jan. 24, 1997). Lead Hazards and Abatement Technologies in Construction: A Risk Management Approach CPCU Journal 1997 Employee Leasing: Liability in Limbo Risk Management June 1 1997 Environmental Audit Privilege and the Public interest Risk & Insurance Managing Risk For Loss Prevention & Cost Control, April 1997 Asbestos:Holes In Abatement Policies Need To Be Plugged, Lloyd’s Environmental Risk International, May 1993 Editor Published Letters Evironmental Risk Management Beware of Facile Policies Like Fetal Protection Business Insurance 1995(?) High Court Review May Increase Sale of Bank Annuities Business Insurances August 8, 1995 Professional Profiles Protecting the Big Apple’s Core Managing Risk For Loss Prevention & Control December 1996 Major Career Highlights First rigorous analysis showing Relationship Between declining ore grades and TSF Failures of increasing consequence ( July 2015) FIrst Documentation that Gentrification Has Same Impacts as Unassisted Displacement from Urban Renewal Sites Direted Court Ordered EIS of FHA Mortgage Scandal Created Nation's First Homeownership Program for Low Income People (SHIP) Created Earliest Geographic Information Systems Using Defense Technology Developed By IBM Designed and Conducted Parallel Census Count to Show Systematic undercount in minority neighborhoods Documented Bias in ISO Territory Rating Plans for Private Passenger Auto Insurance Using ISO's own Rating Techniques Demonstrated Inherent Bias in Mortgage Policies of Banks With Inner City Branches Demonstrated that NY Telephones Plan for Area Code Split To accommodate anticipated cell phone demand was not efficient and would exhaust in 5 years ( which it did) Undertook First Systematic Evaluation of Child Protective Services Caseload Using Multi Variate Analyic Techniques Developed Child Protective Caseload Management and Tracking System (CANTS) and directed implementation in 4 client states including Illinois, Florida and New York Created and Ran Office of Risk Management for NYC DEP the Nations largest Water & Sewer Authority . Designed, Created and Administered Nation's First Owner Controlled Insurance Program (OCIP)for High Risk Tunneling Education Masters NYU Graduate School of Public Administration BSC New School For Social Research Maine Public Schools Deering High School
This entry was posted in Causes Of Catastrophic Tailings Dam Failures, Herculano Indictment, Herculano Mine, Risk & Public Liability of Tailings Dams, Risk Economics and Public Liability of Tailings Dam Failures, Tailings Dam Failures, Tailings Dam Risk Management, tailings dewatering, Tailings Facility Failures 1910-2015, Tailings Failure Rates, Tailings Risk Management, Tailings Storage Facility Risk Management, Uncategorized. Bookmark the permalink.

One Response to Herculano Mine Partners Indicted on First Degree Murder Charges For Worker Deaths In September 2014 Tailings Dam Failure

  1. Pingback: Samarco Exectives May Face Murder Charges For Deaths In Fundao Tailings Dam Failure | lindsaynewlandbowker

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