Samarco Executives May Face Homicide Charges For Deaths In Fundao Tailings Dam Failure

 It was reported on February 5th that Samarco executives may face homicide charges on the basis of victim autopsies and records seized by police.

We have gathered all of the findings from the autopsy reports, in which we determined that the crime of murder had been committed,” said Rodrigo Bustamante, who has been heading up the investigation for the state’s civil police

What is suggested in this report is that the evidence supporting criminal charges for murder  was based on (1) cause of death clearly attributable to the gigantic mudflow (2) that the risks  of failure and its consequence were clearly known and/or  forseeable and that  (3)  not  taking recommended steps to prevent failure .

As part of their criminal investigation, authorities carried out searches on the premises of the Samarco headquarters, in which they collected copies of emails and internal company messages in order to determine whether the company executives know about the impending risk of the dam breaking.

Independent experts warned two years ago that the jointly owned Samarco mine, which collapsed in southeastern Brazil killing 19 people, was not safe.

Most of those killed were workers at the mine working on a project preparatory to the merging of the closed Germano and the Fundao by removing the Silenha Dike separating the two .  That plan had not been authorized or approved though steps towards its implementation were underway.  The Silennha dike was one of the structures damaged during the failure.  Some of those may have been employees of the contractor retained by Samarco for this work.

The criminal investigation, presumably through new evidence gathered in the raid on Samarco’s record, may increase the amount of the already initiated $us5.1 billion damage claim.  It was not disclosed whether criminal charges other than murder would also be brought.  A separate lawsuit and investigation under Brazil’s Environmental Crimes Statute has been underway since right after the failure on November 5th.

Still another law suit was recently initiated by  the Federal Office in Linhares near the mouth of the Rio Doce on behalf of fisherman whose livlihoods have been indefinitely interrupted and impaired by the mud flow.

Criminal charges have also been filed against Herculano Mine exceutive for a tailings dam failure there in 2014.

A finding of criminal acts would most likely nullify all or most of the $60 million of the loss previously reported as insured.  Property & casualty insurance , which would include claims fied by homeowners, business owners, farmers and the two states involved where a cause is “an act of God”  would not respond to any claims resulting from criminal acts or fror forseeable and preventable.   Until recently, as usually happens following a mine catastrophe owners were suggesting that the final investigation would show the cause was two small earthquakes quite close to he site of failure.  Bowker Associates has reviewed that data and it appears that both were after the Fundao failure and possibly caused by it.  In recent comments Samarco, BHP and Vale have not referred to the two small tremors as a possible cause of failure.  That would be an unsustainable claim anyway as the dam should have been built to withstand a maximum credible event during its operation and into perpetuity and that is well above 4.5.  The two small quakes were 2.5 and under.

 Claims by victims families and all who suffered damages can still be pursued in civil court and by writing a notice of cliam directly to Samarco at its Corporate Headquarters. And of course, all claims are still be valid, regardless of insurance coverage  but there would be no insurance to respond and it would be that much harder for victims to prepare, file and manage their claims.

Minas Gerais has not required Samarco to set up and fund a claims management litigation support process for victims.  Bowker Associates is investigating whether it is possible to set up a miner funded claims management litigation support process for the victims likely to number in the thousands.  They have enumerated $R 1.2 billion in damages and losses to the two municipalities affected by the failure exclusive of te $US 5.1 billion in envionemntal damages and any payment to families and affected businesses.

O valor consta em relatório divulgado nesta quinta-feira (4), pela força-tarefa montada pelo governo de Minas para apurar prejuízos causados pela tragédia.) The value contained in a report released on Thursday (4), the task force set up by the government of Minas to determine damages caused by the tragedy.( O valor será cobrado da Samarco, que pertence à Vale e à BHP Billiton.) The amount will be charged  to Samarco, which belongs to Vale and BHP Billiton. (No total não estão incluídos danos ambientais e recursos que serão utilizados para o pagamento de indenização a famílias). This amount is nand does not include environmental damages or provision for the payment of compensation to families.

(Conforme o relatório, 320 mil pessoas foram atingidas pela tragédia, que já tem 17 mortes confirmadas.) According to the report, 320,000 people were affected by the tragedy, which already has 17 confirmed deaths. (Duas pessoas ainda estão desaparecidas. Two people are still missing.

“….According to the report, the production chain in the region recorded losses to the private sector of R $ 540,466,816.00, according to information forwarded by municipalities.( As perdas foram por morte de animais, destruição de lavouras, pastagens, máquinas e construções). Losses were due to death of animals, destruction of crops, pastures, machinery and buildings. (Os prejuízos públicos totalizaram R$ 146.066 455,33, principalmente com a prestação de serviços como abastecimento de água, que ficou prejudicado com a lama no Rio Doce.) Public losses amounted to R $ 146,066 455.33, mainly to the provision of services such as water supply, which was damaged by the mud in Rio Doce. (Em relação à infraestrutura pública, a lama da Samarco consumiu R$ 513.755.631,00, com a destruição de estradas, postos de saúde, escolas, e comunidades, total ou parcialmente, como Bento Rodrigues e Paracatu de Baixo, em Mariana.) In relation to public infrastructure, the  Samarco mud flow caused R $ 513,755,631.00, in losses including the destruction of roads, health centers, schools, and communities, in whole or in part, as Bento Rodrigues and Paracatu Low in Mariana”

Samarco has claimed it relied entirely on qualified consultants with recognized expertise for the design and ongoing  management of the failed tailings dam specifically naming Dr. Joaquim Pimeta De Avila who has been a key witness in the police investigation.  They say they received no notice of imminent risk of failure and had no knowledge of any problems that elevated the risk of failure.

Samarco id not meet the Federal government demand for deposit $R2.1 billion of the $Us5.1 billion to provide immediate funding for emergency recovery claiming it has already spent$R2.3 billion in clean up. and is continuing to fulfill its recovery obligations.They also indicated they need more time to post any further large amounts in cash.

Contact: Lindsay Newland Bowker, Founder & Director Bowker Associates Science & Research In the Public Interest

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 2017 we partnered with Daveid M. Chambers, a world leader in responsible mining, in our third joint work on the economics of tailings failures. Bowker, L.N.; Chambers, D.M. In the Dark Shadow of the Supercycle Tailings Failure Risk & Public Liability Reach All Time Highs. Environments 2017, 4, 75. A peer reviewed journal published investigation of the cowboy economics of the supercycle and the resulting escalation on the number and magnitude of catastrophic failures. In 2016 we parnered with Dave Chambers in our 2nd joint work together looking at root causes of failures at a conference . Bowker, L.N.; Chambers, D.M. Root Causes of Tailings Management Failures: The Severity of Consequence of Failures Attributed to Overtopping 1915–2015. In Proceedings of the Protections 2016, Fort Collins, CO, USA, 14 June 2016. [Google Scholar] In 2015 Bowker Associates collaborated with 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 global mining economics 1910-2010 ( Risk, Economics and Public Liability of TSF Failures, Bowker/Chambers July 2015) The third annual update of this globally referenced and used compilation was just released at Researchgate. ( 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:// 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 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 BHP, Bowker Associates Science & Research In The Public Interest, Catatrophic Tailings Dam Failures, Causes Of Catastrophic Tailings Dam Failures, Fundao Talings Dam, Geoesteval, Germano Tailings Dam Failure, Linhares Civil Action Against Samarco, Samarco Murder Charges, Uncategorized. Bookmark the permalink.

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