CONTACT: Lindsay Newland Bowker, Bowker Associates lindsaynewlandbowker@gmail.com

DATE Of Release: December 5, 2016


Today ICMM ( “The International Council on Mining & Metals”) issued its report on Tailings Management. Written by Golder Associates who played a major role in the PR for Mt Polley and Samarco, the report is on behalf of ICMM’s 23 members who are the largest miners in the world controlling more than 2/3 of all production globally.


It is really more a PR document attempting to assure investors and the public that its 23 large members have been following and continue to follow all best practice standards for tailings design and management.  There is nothing in it that recognizes the elevated levels of catastrophic tailings loss  globally not just as forecast but as evidenced in the record . There is nothing offered that addresses root causes or solutions.



This is pretty  much as expected from ICMM and from Golder who have become more a mega PR firm, a “fixer” for  big miners in the wake of big disasters. Golder’s is  very different voice  when its client is the  World Bank or the IFC.


This report  is  on a parr with the superficial   response and reassurance given by BC MOM in its directed re evaluation of all B.C Tailings Facilities.  What was actually directed and the information actually produced did nothing to actually assess the level of risk in BC MOM’s standing operating already permitted TSF’s



This report falsely states the historic record on TSF failures still quoting that tired old worn out 21 year old ICOLD stat that the  mining industry insists on as its meme : “2 significant failures occur per year”. Historically and in  the most recent decade the actual number is 3.4 per year.  In 2016, there are already 5 “significant events”.


The “2 per year” comes from including pre-1936 decades for which ICOLD//WISE reporting was sparse and anectdotal(far left of chart above). The actual long term “significant incidents” rate from 1936 is 3.3, continuing the last two decades at about the same level (3.4).  The real story is in the frequency of high severity events such as Mt. Polly and Samarco.  In the last two decades that rate is 180% above  the 80 year rate of 0.5/year at 0.9. For the coming decade, actuarial science puts the expected rate at 1.4 to 1.5 per year for failures with releases exceeding 1 million cubic meters. ( see trend lines, below)

 Many will be in the range of severity between Mt Polley (25 million)and Samarco.(40 to 60 million)


 If ICMM’s model is taken up as a standard for the legal frameworks of mining globally or as standards for responsible self governance we can expect these drastically elevating trends of catastrophic failures to rise even more steeply with ever greater non remediable consequence.


The ICMM/Golder “report”  gives a cursory and poorly informed examination of root causes of failure again based on ICOLD’s 21 year old report, selecting only 3 out of the total 18 catastrophic failures since 1996   ICMM/Golder systematically  avoid the many authoritative deeply informed reviews of cause of failure especially Blight et. al’s re- review Merriespruitt which summed up a better list of root causes of failure.


These roots of failure, as Golder and each of ICMM’s members knows include

  • a brain drain in the industry;
  • incompetence in understanding and applying available technology;
  • global shifts which have determinant long term adverse financial viability at the nation level
  • the proof that the “economics of scale” metric no longer works at the very low grade levels where head grades and discovery fgrades converge.
  • A dramatic and debilitating 23% loss in productivity industry wide between 2004 and 2013 according to McKinsey
  • That grade is now “king” and the mining industry has entered  an entirely new era where old assumptions, old industry standards and even the body of existing “best knowledge” no longer apply. Deloitte and many others naming this.

Writing before Mt Polley right after Anglo, one the “ICMM 23”  took a public hit from Chile  on tailings and other violations, Jack Caldwell foreshadowed and summarized some of these same elements at work within Anglo.

After it audited several mining projects at Anglo Sur’s El Soldado, located 132 kilometres from Santiago in the district of Nogales, the authority detected multiple irregularities, including failing to fully preserve and relocate vegetation, ineffective wetland conservation plans and water management, lack of environmental monitoring, and tailings in in unpermitted areas

Do they really have tailings in unpermitted areas?  How can so large a mining company make so egregious a mistake?

Recall that Mike Davies (now VP Environmental Things for Teck) said that mining companies cut cost to the point that failures occur and then they take another look at costs and maybe adjust cost cutting and staff layoff.  Maybe Anglo is at that point.

I know the past head of tailings for Anglo in South Africa quit because he was overworked: required to review at least one facility a week, including those worldwide.  You cannot even travel to most of the mines in a week, net alone review their tailings operations.

“Tonight at the party for next week’s Heap Leach Conference, we discussed this story.  One cynic told the story of McMillian Blodell in BC who decided it was cheaper to pay the fines than obey the laws.  His opinion is that maybe this is what is happening in Chile.  As he noted, $5 million is a hell of a lot less than $300 million or the cost of establishing wetlands and putting tailings in distant sites.

Jack Caldwell.September 23, 2013 I think Mining.com ( reprinted at Mining.com)

This is the basket of snakes the Golder concocted ICMM Tailings Management Report is trying to keep the lid on.

ICMM/Golder cite three main national systems of guidance as containing a complete and thorough reference on “best knowledge/ best practice” and specifiy that adoption of any of these systems as corporate policy on Tailings Management would satisfy the ICMM commitment: ANCOLD( Australian National System), MAC/CDA( Canadian National Systems) and SANS(South African National System.  They identify 6 additional provisions not explicit in these three framework standards that must additionally be incorporated in company policy to meet the ICMM commitment. The 6 provisions are essentially what constitutes BHP’s recently announced “reforms ” in tailings management.

The venerable Dirk Van Zyl , a member of the ICMM expert review panel noted that ICMM did not address the root causes of the Samarco failure nevertheless congratulated them on what they had addressed.

-size:medium;”>Dirk van Zyl, a member of the expert panel that was constituted for the review, said

: “I am delighted that as a result of the review, CEOs of the world’s 23 leading mining companies committed to a new ICMM framework on how to further enhance the safe management of tailings dams.

The review did not cover how or why the Samarco tailings dam failed, but takes lessons from the tragic event as well as from other tailing dam failures. It finds that a higher level of governance and assurance is key to confirming existing safety standards are implemented consistently.”

Coverage in main stream business and mining news has been sparse and  without enthusiasm, analysis or comment.


Golder / ICMM ignore the facts of this new era which began about 10 years ago even as they have intentionally orchestrated  their version of the new era at increased global risk  of failures by over producing to intentionally drive out smaller mines, intentionally cause them to fail.  ICMM and its membership have their own version of a new era governed by their membership, a few large miners who can better manipulate supply, demand and thereby better control price.  The outfall of that ICCM plan is dramatic and precipitous escalation of public risk and consequence in the intentionally squeezed mines which will be left to fail or spun off to speculative avaricious foreign investors who want a foothold for other business opportunities. ( somewhere I have the article by Cecelia Jasmine of Info Mine/mining.com actually quoting this from ICMM) 

Essentially in this intellectually thin document Golder ICMM cling to the old model  and try to minimize any expectations of needed changes and new directions in business fundamentals among their 23 dominant metals producing members. 


This clinging to worn out no longer valid old ways,old assumptions and old models is apparent in several notable quotes for which there is no excuse and no defense and which frame the cornerstone of the approach and decalarations


(1) They essentially say  that all that exists as best knowledge needs no expansion, addition, or fundamental change to stem the ever rising trend of catastrophic failures



“Existing published guidance and standards documentation fully embrace the knowledge required to prevent such failures. The shortcoming lies not in the state of knowledge, but rather in the efficacy with which that knowledge is applied. Therefore, efforts moving forward should focus on improved implementation and verification of controls, rather than restatement of them.


There are numerous clearly established trends which desperately need addressing to prevent catastropic loss and stem its ever rising trend of annual frequency and severity of loss: the increasing levels of fines in lower grades that preclude the use of alternatives of slurry deposition which the Mt Polley Dam Committee has declared to be “outmoded technology”, the proportion of major producers with older TSF’s at maximum  design capacity and height,  the increasing deviation between predicted and actual performance of processing and production measures and on financial feasibility,the work of Bernhrad Dold on how ARD emerges in tailings, the absence of adequate in house competence to oversee or even evaluate the competence of outside consultants, a severe shortage of competence industry wide.


2.  Ignoring the actual vastness of this leading edge and in some cases long  established  “best knowledge” more deeply mapping the circumstances and attributes which have manifested and will continue to manifest in  catastrophic failure ICCM Golder cite adherence to a few very vaguely developed standards and guidelines like ANCOLD, MAP/CDA and SANS as evidencing sustainable performance

A year ago an international coalition of responsible mining advocates wrote to ICMM urging their members to undertake reforms and formally adopt the guidance of the Mt Polley Dam Committee and a loss prevention risk management response to the alarming rise of catastrophic failures post 1995 mapped by Lindsay Bowker and Co-author David Chambers in July 2015.  .


Earthworks and the international coalition is still considering what response to make.to this ICMM “report” completely avoiding every issue raised by the International Coalition.



Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681


207 367 5145





Additional background and links on ICMM’s Tailings Initiative and Policy

  1. Annoucement that this study would be undertaken.  Includes a list of all members and contact info at ICMM


Posted in ANCOLD, AngloAmerican, Dirk Van Zyl, Golder Associates, ICCM Tailings Management Report, Jack Caldwell, MAC/CDA Tailings Guidelines, Mike Davies, Uncategorized | Leave a comment

Full Government Report on Samarco:Vale’s Unauthorized Slimes Depositions a Primary Cause of The Fatal Failure Indictment Finds

In stark contrast to the scene and tone of the public release of the BHP commissioned “Cause of Failure Report ” where Dr. Morgenstern gave the committees version of events poised , elegant in his immaculate suit from a large video screen, the government report released this week begins with a poem speaking to the unspeakable.

“O sertão vai virar mar
É o mar virando lama
Gosto amargo do Rio Doce
De Regência a Mariana

Quantas pessoas sem rumo como canoas sem remos
Ou pescadores sem linha e sem anzóis?
Quantas pessoas sem sorte, quantas pessoas com fome?
Quantas pessoas sem nome, quantas pessoas sem voz?

Morreu debaixo da lama, morreu debaixo do trem?
Ele era filho de alguém, e tinha filho e mulher?
Isso ninguém quer saber, com isso ninguém se importa
Parece que essas pessoas já nascem mortas

Quem olha acima, do alto, ou na TV em segundos
Às vezes vê todo mundo, mas não enxerga ninguém
E não enxerga a nobreza de quem tem pouco, mas ama
De quem defende o que ama e valoriza o que tem”1

O MINISTÉRIO PÚBLICO FEDERAL, por seus Procuradores da República
signatários, no exercício de suas atribuições constitucionais e legais, comparecem,
respeitosamente, perante Vossa Excelência, com base nos procedimentos investigatórios em
epígrafe e com fundamento no art. 129, I, da Constituição Federal, para oferecer DENÚNCIA
1 Cacimba”

The bumps and squiggles of the Bing translation soften its deep grieving somewhat

The backcountry will turn sea
Is the sea turning into mud
Bitter taste of Rio Doce
Regency Mariana
How many people aimless as canoes without oars
Or fishermen without line and without hooks?
How many people no luck, how many people hungry?
How many people without name, how many people without a voice?
Dead under the mud, died under the train?
He was the son of someone, and had a son and wife?
That nobody wants to know, with that nobody cares
It seems that these people are born dead
Who looks up, from the top, or on TV in seconds
Sometimes you see everyone, but I can’t see nobody
And can’t see the nobility of who has little, but he loves
Who defends what he loves and appreciates what has 1
The FEDERAL PROSECUTORS, for their public prosecutors
Contracting Parties, in the exercise of their constitutional and legal assignments, attend,respectfully, before your Excellency, on the basis of the investigative procedures in epigraph and based on art. 129, I, of the Federal Constitution to provide
Remembering Emanuely, age 5, swept from her fathers arms as he tried to outrun the towering wall of advancing mud.  While her parents held out hope they posted this sign,  Her tiny shattered body was found 40 km downstream.
The full text of the report in Portuguese is at http://www.mpf.mp.br/mg/sala-de-imprensa/docs/denuncia-samarco.
Indictments and poems of lament and sorrow certainly belong after such an event and what is now known about how this avoidable catastrophe formed and evolved but surely more was needed.  In Brazil, In Canada,  within the world’s major mining associations, in the Board rooms of the worlds largest miners, in legislative chambers, not one useful reform has been put forward.  A lot of rhetoric has been thrown as around  declaring “no more failures” but it all just allows what was to continue..There is no real change.
Our data tell us this decade 2015-2025 will see the largest number of catastrophic mine failures ever in recorded history.
Indictments and poems of lament at the devastation a greedy thoughtless trio of companies co created is just not enough in the face of what is to come.
Lindsay Newland Bowker, Executive Director
Bowker Associates Science & Research In The Public Interest
Stonington Maine
November 4 2016
Here are some excerpts from the report
On p. 41 of the charge sheet, it says Vale sent 5.817 million cubic meters of waste into the Dike 2 reservoir,  meant for slimes. A simulation detailed in SETEC Report no. 994 (whatever that is) found that without Vale, the slimes would never have flowed into the sands reservoir. 

Apesar disso, a VALE encaminhou, entre os anos de 2008 a 2015, para o SRF, no Dique 2, o volume de 5.187.610 m3. Em média, a produção de rejeito da VALE encaminhada para a barragem do Fundão foi igual a 648.451 m3, anualmente. O Laudo SETEC n.º 994 identificou, por meio de simulação, que se não houvesse a contribuição de rejeitos da VALE para o reservatório de Fundão a premissa de separação dos rejeitos, concebida no projeto original com o alteamento conjunto dos dois diques, não teria se perdido durante a operação.
From the introduction
“The victims have been identified. All those who lost their lives.
Can you imagine being overtaken by a wall of mud and waste ? An accident? No. It was caused by  technical flaws in implementation and maintenance consciously
chosen  to reduce costs and increase dividends.Over many years, countless actions by all three companies at the highest levels, aware of the dangers in their choices,  avoided that reality  hoping to buy time with technically dubious measures”.
With respect to VOGBR, the indictment refutes almost every declaration briefly posted by VOGBR after they learned they were named.  Bowker Associates excerpted and posted some of that text which maintained that they did no site inspections, were given the data and the form of analysis to be performed by Samarco.  The indictment says VOGBR was fully aware of the history of the Fundao and of the specific deficiencies that were cited as the root cause of failure and leant their name to a finding of stability when they knew that was not true.(pp 28-30+)
“It was determined Vale’s tailings depositions greatly  influenced  the rise of the
reservoir level,contributing  about 27% of all the mud deposited between the
years 2008 to 2015 in Fundão dam. Without their contribution, despite the ommission of drainage elements and the poor planning on the slimes dam, the slimes would not have  overrun their dam into the  sandy tailings or resulted in the failure to maintain the 200m beach.  Vale is found to have itentionally hidden and falsified information information on its long term use of the Fundao for it sown tailngs ” PP 40-41+ ( For further details see Bowker Associates post on Vale’s use of the Fundao)
Posted in samarco failure 1 year anniversary, samarco failure government findings, Uncategorized | Leave a comment


CONTACT: Lindsay Newland Bowker 207 367 5145/lindsaynewlandbowker@gmail.com

DATE: October 1, 2016





According this 2014 report by the Brazilian Government, Brazil has 633 tailings dams, the overwhelming majority built after enactment of the   2010 statutory overhaul. 144 are large enough to cause catastrophic social, environmental economic  and public liability loss in the event of failure . In this report, Brazil classifies only 32 of the 633 facilities as high risk  by its procedures for analyzing risk.  Those procedures however are more like the standard hazard classification which speaks simplistically  and narrowly to the issue of how much harm a given outflow could cause.  They do not recognize whether what is built and operating  can be reasonably expected to attain environmental standards. For example it does not recognize the different propensity for failure  for a given height and capacity configuration based on ARD, rate of raise, or dam design, drainage system, capacity to separate silt from sands , proportion of fines, dryness through the stack and other tailings specific characteristics not shared by water dams.


All will recall that the July 2015 inspection report prepared by VOG BR gave a satisfactory rating to the Fundao.  As VOGBR explained in a briefly posted letter that is excerpted at length at our wordpress, the report was a required annual compliance report whose form and content is dictated by the regulations and law.


VOG BR wrote that Samarco did not  allow them to take any independent measurements or visit the site.  Samarco, they said,  gave them the data and contractually specified the analysis to be used.  This same level of “annual safety inspection” pursuant to law has presumably  attended oversight of all of Brazils large dams

 Vale Tailings Dams Map.png

Photo From valeaguamais.wordpress.com

Taking a more  comprehensive, forensically informed view of risk  and evaluating Brazils legal framework, its obviously  low  level of technical competence   in mining, we believe  all 144 large tailings facilities in Brazil should be considered at significant risk of failure and a program of independent multi-disciplinary  risk assessment  be undertaken for all 144. All upstream dams higher than 50 m should receive top priority attention..  The  immediate priority should  be on the  15 mega dams of extreme height and size relative to the world’s tailings dams.  Vale’s  mega dam at the Tapira Complex, already exceeding permitted capacity  and in process of further expansion and already evidencing cracks and other signs of strain  has been widely identified as of particular concern. Our reasons for  considering all 144 large tailings dams at risk are:


(1) the 2010 statute reform did not address any of the root causes of catastrophic failure focusing instead on the structure of  criminal and civil liability. Under that law the fatal flaws in the Fundao were not detected or addressed until the worst failure in recorded world history actually occurred


(2) Vale controls 114 of 633 total TSF facilities  and accounts for a very significant  part of all of Brazils iron ore production  generating 200 million tonnes of ore per year  more than  40% of that in tailings and wastes in just the Iron Quadarangle area.. Vale aim to increase throughput in the 19 Quadrangle by 50% by 2030. Its own 2013 self assessment of the safer alternative of paste thickening  and dry stack concluded  most of its  presently generated tailings did not meet technical criteria for the safe alternatives of paste thickening and dry stack.  Only 4 of its 114 TSF’s nationwide , 4%,  met the criteria for dry stack or paste thickening.  Vale  succeeded in making Brazil back down from post Fundao failure reforms that would have put controls on height and rate of rise ( per globally recognized best practice) and banned upstream construction for large dams. (Eisenhammer) Vale, 50% owner of the Samarco vetted the major expansion and ok’d proceeding even though its own consultant flagged the absence of adequate capacity on the Fundao and the absence of any plan or space on site to provide capacity .  Vale’s inventory  of TSF’s includes many, if not most, of these very large tailings dams. 


(3) there is no mining  competence within any of the permit issuing entities or within the state of Brazil so even if the legal framework addressed root causes of catastrophic failure there is no technical capacity within government to determine whether environmental and conservation standards are actually attainable . Virtually all of the 144 large tailings dams and the 15 mega talings dams were permitted  with no technical competence on the part of regulatory oversight


(4) Minas Gerais alone, a major center of mining in Brazil, .seems both inept and a victim of complete regulatory capture (as was and is the case in Brtish Columbia) . Rio Pomba had two prior serious events (2003 and 2006) before the final very serious failure on 2007.   Minas Gerais is responsible for 3 of the world’s 18 very serous failures 1/1/1996-12/31/2015, 17%)   and 3 of the worlds 20  serious failures post 1996,15%.  We don’t need details on Minas Gerais’ total ore throughput to know that this  is out of scale with Minas Gerais’ rank  in global ore throughput..


(5) Brazil, since passage of its 2010 statute has embarked on a massive improperly regulated expansion of metals production sowing the seeds for catastrophic failure (http://www.ibram.org.br/sites/1400/1457/00000294.pdf There were only 241  tailings dams in Brazil in 2011, 641 by 2012.( see Figure  9  of cited report)

 herculao dam failure_

Herculano Tailings Dam Failure Minas Gerais

To Brazils credit and pursuant to the 2010 statutory overhaul, Brazil here has at least made some account of its TSF’s and reported out a few useful publicly available stats. Every nation should publicly report and monitor the condition of all permitted large TSF dams as this Brazil report does. It’s major flaw, however is that it focuses on a common set of measurements amongst all types of dams and neglects to address key elements of risk and function that are use specific. For example, no discussion of upstream construction  and rate of raise in tailings dams.


As you may know ICOLD, the International Committee on large dams  does not keep track of tailings dams for fear their terrible safety record would reflect adversely on public perception of water dam safety (Kiernan 2016)  Brazil here at least counts and gives basic stats on its tailings dams. and we can, because of our deep immersion in the forensics of the worlds mining catastrophes make some inference from these data on the likely massive public liability already formed in these 144 large TSF’s.


It is our advocacy that Tailings Dams require their own risk assessment criteria and their own relevant stats and legal framework.  Our advocacy is that every permitting district should have an independent multi -disciplinary Mine Review Board  separately appointed and mandated in statute similar to Buildings Departments and the Inspection process for construction of large buildings. They should have the power to act against or in lieu of permitting districts that are not applying existing authority, a reality that is itself a root cause of failure ( BC Auditor Generals’ Report 2016)


This report  applies the same size categories to tailings dams as to other dams using the ICOLD definitions  where a large dam is defined as a height greater than 15m or a capacity greater than 3 million cubic meters. 


In this case the criteria that define a large water dam and those that define a large talings dam are reasonable and fit with the forensics of tailings dam failure. Tailings dams of 3 M cubic meters are capable of catastrophic failure which Dr Chambers & I define as a release > than 1M cubic meters.( Bowker Chambers 2015, Bowker Chambers 2016)  In a total failure  30%-50% of contents is generally released.( Rico 2010 and forensics)



In general as a risk analysts and as an anlayst in general, I discourage comparisons between water dams ( purpose built to completion to  a known range  of flow with materials rigidly meeting specific specifications, retaining only water  and build as you go and mostly earthen from  materials at hand, retaining various toxic materials and variability in the structural integrity of materials available for each raise.  Obviously they are not meaningfully  comparable.. 

We have to reiterate that the meaningless manufactured stat that tailings dams fail at a rate 10 times water dams  should be permanently retired and never again cited. by any responsible researcher, journalist or spokes person.


Each type of retention dam should be assessed for its own distinct  inherent engineering and failure risks based both on contents and means methods and materials of construction.


To discourage comparisons with water dams it would be better if water dams were separately reported and monitored on standards suitable for them and mine tailings  ( and other type of waste and  waste dams eg those retaining pregnant leach solutions) were reported and monitored on their own terms for risks specific to the dam type.)




Ignoring the comparisons by dam type in this report ( and resisting any urge to cite them on a comparison basis) here are some of the stats in this 2014 Brazilian government report.


per figure 4:


519 of the 663  Brazilian tailings dams are not “large dams” by definition and therefore also not capable of catastrophic failure  as defined in Bowker Chambers 2015 and Bowker Chambers 2016.


144  of the 663 are large dams.


of these  15 have a dam capacity of  greater than 75 M cubic meters ( 7 of these > 200 M cubic meter  capacity ( see Figure 10 as well)


The distribution of Brazils tailings  dams by height is show at figure 12 on page 29


The Fundao was 74 M high at failure and had a capacity of 62 million cubic meters. Mt Polley was 40 m high at failure and had a capacity of  75 million cubic meters ( Chambers Bowker Failure Data Base 2015, revised 2016)


 As we learned lately BHP did not even have a geophysicist on staff before the man made catastrophic failure of the Fundao and had no informed risk management policy on the many TSF’s at its mines all over the world..  Samarco had an independent Tailings Review Panel  but the effect of that on loss prevention and control is apparent.  It s not an exaggeration to consider all 144 large dams in Brazil as at risk .


Dr. Chambers & I  know from our deep dive into the forensics of all catastrophic TSF failures  recorded history ( Bowker Chambers 2015, Bowker Chambers 2016) that the greatly expanded volume of ore production needed to attain a unit of finished metal as grades fall precipitoulsly worldwide is accommodated mostly by pushing existing TSF’s beyond their design capacity in height, volume, years of useful life and foot print.  Chuquicamata , for example,   still planning to use  its same  43 SqKM  1985 TSF for its current massive underground expansion. At Samarco  it was known the Fundao did not have capacity for the planned expansion. Vale who control 144 of Brazils tailings dams ( see Quadra 4 p 51) signed off on that. All knew the Fundao never had its two key engineering requirements for safe operation from the beginning .  All knew there was no identified vetted plan for expanding onsite capacity to adequate and soundly manage the volume and rate of tailings deposition that the expansion would require.  That happens everywhere.  We rarely see  a specific focused review of tailings capacity for these big throughput expansions and investors , before Fundao, never thought to ask these questions.


Dr. Chambers and I have been saying for two years now hat the records tells us the first and most urgent regulatory and public attention must be directed to the already accumulated but not  yet manifest catastrophic failure in existing permitted operating facilities.( Bowker Chambers 2015, Bowker Chambers 2016)


It is clear that this cannot be a self evaluation and it is clear that Minas Gerais and most permitting districts do not have the competence to  either oversee or conduct these re evaluations.


These re evaluations have to reach well beyond the usual routine proximate cause of failure.  The world record of failure is now perfectly clear that root causes of catastrophic failure  which lay behind these incompetent or just wrong engineering choices cited as “proximate cause” ( Bowker Chambers 2016)



Brazils risk classification and its overhaul of mining law miss what have been identified as key root causes of catastrophic failure( Bowker Chambers 2016)



Brazil needs to stop the clock on its aggressive mine expansion agenda, assess the liabilities they have allowed to accumulate in this massive improperly regulated expansion post 2010 and form a strategy for unwinding  that liability.  Unfortunately it seems that present law des not provide any response until the destruction happens.  They need new law now to specifically address what they will find when they undertake a more meaningful risk assessment than is provided in this 2014 perfunctory report.





Blight, Geoffrey (2010). “Management & Operational Background to Three Tailings Dams Failures in South Africa.” Chapter 42, Slope Stability in Surface Mining, ed. Hustrulid, W.A., McCarter, Kim, Van Zyl, Dirk, Society for Mining Metallurgy and Exploration, e-book, 2010.


Blight, G.E. and A.B. Fourie (2004). “A Review of Catastrophic Flow Failures of Deposits of Mine Waste and Municipal Refuse.” Proceedings International Workshop, “Occurrence and Mechanisms of Flow-like Landslides in Natural Slopes and Earthfills.” Sorrento, 19-36, Picarello (ed), Patron, Bologna


Bowker, L.N. and Chambers, D.M. (2016).” Root Causes of Tailings Dam Overtopping: The Economics of Risk & Consequence”  Proceedings of “Solutions 16”, (September 2016 ) ( presently in compilation by Solutions16  meanwhile pre publication copy available from the authors) 


Bowker, L.N. and Chambers, D.M. (2015). “The Risk, Public Liability, & Economics of Tailings Storage Facility Failures.” July 21, 2015, http://www.csp2.org/technical-reports, (June 14, 2016).

Chambers D.M. and Bowker L.N.(2016)  Tailings Dam Failures 1915-2015 (excel Free publicly downladadble) www.csp2.org


Chambers, D.M. (2014). “Options For Defining Environmental “GO/NO-GO” Zones For Mines.”January2, 2014 http://www.csp2.org/technical-reports, (June 14, 2016). Commissioned Directed By Bowker Associates) http://www.csp2.org/files/reports/Go-NoGo%20Zones%20-%20Chambers%202Jan14.pdf





Eisenhammer, S and Nogueira, M (2016). “Brazil Mining Dam Reforms Unsettle Companies, Do Little for Safety.” Reuters, May 11, 2016


Kiernan, Paul (2016b). “Engineers Say Brazilian Disaster Shows World-Wide Danger from Hoover Dam-Size Earthen Structures Holding ‘Tailings’ Waste.” Wall Street Journal (WSJ), April 5, 2016


Mt Polley Expert Panel (2015). “Report on Mount Polley Tailings Storage Facility Breach.” Independent Expert Engineering Investigation and Review Panel, Province of British Columbia, January 30, 2015.


http://www.e-mj.com/features/850-brazil-mining.html?showall=1#.WAUkSWYzUjU  Excellent and through Engineering and Minig Journal 2011 article on the economics of mining, economic policy, economic and political history of mining in Brazil( n English)

This thesis which also combines analysis of water dam and tailings dam failures has good text and photos of all of Brazils failed dams  (in portuguese)http://www.smarh.eng.ufmg.br/defesas/656M.PDF

Mining.Com’s 2013 profile of 10 largest foreign investments in Brazil Mines..No details on tailings..just thumbnail sketches  Anglo America is prominent on the list http://www.mining-technology.com/features/featurethe-10-biggest-foreign-owned-mines-in-brazil-4415407/2

Vale’s History In Its own words  .http://www.vale.com/Documents/valehistorybook10.pdf

Vale’s Self Assessment of  Possibility of Using Safer  Sounder Tailings  Storage http://www.paste2013.com/wp-content/uploads/2013/07/Mendes-et-al-Geotechnical-parameters-of-iron-ore-tailings-from-the-Quadrilatero-Ferrifero-after-different-treatments-and-ore-processing.pdf

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681


207 367 5145




Posted in BHP, Bowker Associates Science & Research In The Public Interest, Brazil 's High Grade Iron Ores, Brazil Tailings Dam Failure Risk, David M. Chambers, Lindsay Newland Bowker, Minas Gerais Mining Oversight, Samarco $44 billion lawsuit by Brazil, Samarco Dam Failure, Samarco falha de barragem de rejeitos, Samarco Indepemdent Panel Report, Tapira Complex, Uncategorized, Vale Indictments, Vale SA., Wonder Dam III | 3 Comments


FOR IMMEDIATE RELEASE:  September 16, 2016 CONTACT: Lindsay Newland Bowker, Managing Director, Bowker Associates, Science & Research In The Public Interest 207 367 5145  lindsaynewlandbowker@gmail.com
The following letter was sent by Bowker Associates Managing Director, Lindsay Newland Bowker to DEP Policy Director Jeff Crawford who, along with former Deputy Commissioner Heather Parent, had falsely testified to the BEP and the legislative committee of jurisdiction that above ground tailings facilities are temporary structures removed at closure.  Such facilities are the leading cause of mine failure at a catastrophic level and such failures occur predominantly during operations and arise primarily from deviation from best knowledge, best practice and best known technology for the geology, climate, geochemistry of the deposit.  Both Mr. Crawford and former Deputy Commissioner Heather Parent were advised immediately after their testimony last session (on the original version of LD750)  of the error in their advice and its enormous consequence. They were specifically apprised in writing that  such facilities are permanent and key to environmental risk management and public liability risk management.  Mr. Crawford repeated the false information in his briefing to the BEP on August 18th.
This letter to DEP Policy Director Crawford, copied to LURC Executive Director Livesay, DEP Commissioner  Paul Mercer and DEP Deputy Commissioner Melanie Loyzim, State Attorney General Janet Mills and JSCENR Co-Chair Dr. Tom Saviello allows that the adherence to this misinformation may have been a matter of inexcusable lack of due diligence as the facts of the permanence and vulnerability  of tailings impoundments are extremely well known,well documented and undisputed.  Michigans statutes and rules have been much used as a reference by DEP and JSCENR and were the basis of draft rues prepared for DEP by North Jackson, an obscure  minor mining subcontractor in Michigan.  Those Michigan rules stipulate that all tailings impoundments are to be removed at closure. That is not practice, however.  Indeed there is no known incident in history where dismantling and removal of a tailings facility is a planned event. That Michigan directive, which occurs in the context of a mandate for return at closure to pre mining state and pre mining ecosystem function, presents  nearly insurmountable technical and economic and environmental issues.
Although Maine has a similar statutory mandate   on return to pre mining condition and function the DEP rule itself lacks this specific mandate on tailings  impoundment removal at closure .DEP Policy Director Crawford continues to assert it as an ordinary assumed general practice, which it most definitely is not.
The letter urges  that DEP stop repeating this false information, makes in writing corrections and apologies to JSCENR and the present and former BEP explaining how senior DEP officials came to have  such a fundamentally importantly  wrong  concept of tailings management.  It further urges DEP to stop the clock, withdraw the rule from further  consideration and exercise due diligence by retaining an independent multi faceted expert panel  to lay down the basics of modern metallic mining statutory and regulatory frameworks from which further informed action can be considered by all stakeholders.
In private correspondence initiated with us by JSCENR Co-Chair Dr. Tom Saviello, Bowker Associates laid out a specific panel and specific work products.  Prospective panel member,s all globally revered and respected in their separate  disciplines, had agreed to serve and make room in their schedules to deliver a timely work product. Many weeks before DEP announced its new draft rule,  Dr. Saviello wrote that he had presented the concept to DEP and received no response.
Dear Mr. Crawford:
On three occasions briefing the BEP and the JSCENR  you have stated incorrectly that tailings impoundments are removed at closure.  Deputy Commissioner Loyzims predecessor  Heather Parent made this same false statement to JSCENR in the course of the public hearing on the original version of LD750.  There is, of course, no transcript of the JSCENR proceedings but as you know we have all of your testimony and Ms. Parents on video so there is an exact record of what you have repeatedly and falsely advised the BEP and  the JSCENR.
I see now where you and former Deputy Commissioner Parent may have come by this wrong and crucially consequential impression. In a recent review of the Michigan statute and rules  ( in connection with our risk assessment of catastrophic failure for mining legal frameworks),  I notice for the first time that Michigan stipulates that all structures including tailings impoundments must be removed at closure .  This language is in the context of a similar but much clearer  closure standard than is given in Maine’s Statute.  Michigan’s standard, like New Mexico’s ,  is  that the site must be returned to its pre mining state with pre mining function of its eco system.
Without this specific clarity in rule or statute that tailings impoundments must be removed at closure, that is not the norm or practice nor are we aware of any case in history where a tailings facility has been removed at closure.  Indeed that mandate in Michigan is problematic technically, operationally  and environmentally  because tailings have different texture and geochemical properties than what once was solid rock. It is widely recognized and understood that an earthen tailings impoundment  or any deposition of tailings  during operations  is permament and that the placement during operations is the permanent placement.
In emergency situations  or discovered instability of an existing operating impoundment,  tailings have been removed and re deposited elsewhere.  In general, however, the deposition and management of tailings should be to a standard that is structurally sound into perpetuity.  The tailings themselves should be dry enough and remain dry enough to be structurally sound as a mass in all phases of operation and at closure.
Your misunderstanding on this important and universally recognized  fact about tailings impoundments perhaps explains the complete absence of mandates and guidance in the rule  on  sound  design, risk management and oversight of tailings impoundments which are the single largest origin of catastrophic failure.  The overwhelming majority of such catastrophic failures occur during operations, not post closure or in stand by and the overwhelming majority  of catastrophic tailings failures are man made resulting from deviations from best knowledge, best practice, and best technology for design and management.
It is possible to have a site with no tailings through off site processing of all ore as at Flambeau in Wisconsin where a small open pit was reclosed and recapped at closure with stockpiled spills and overburden.
That of course reduces risks of environmental harm and loss considerably and greatly simplifies the return of a mine site to its pre mining state as mandated in our statute ( that, by the way, would not include mowing into perpetuity in a wilderness area).
The Mt Polley Dam Review Committee, charged with examining the causes of failure of the August 2014 failure in British Columbia, declared slurry deposition “an out moded technology” advocating that the standard for all land based tailings be that they have their own structural integrity rather than relying on the wall of the impoundment.  Pre processing methods like filter press pioneered at Greens Creek in Alaska, Paste Thickening or dry stack can attain this inependent structural integrity if managed properly and if the tailings output is viable for these technologies ( which is often not the case). Economically marginal mine plans and expansions, however, cannot afford these technologies and that is a central policy issue any modern legal framework for mining must examine closely and address.  In the creation of this statute and these rules that due diligence has not occurred.
Mr. Crawford, having stumbled on this phrase in the Michigan rules with which I know both the DEP and the JSCENR are very familiar, I now see that your misinformation to BEP and JSCENR ( and former Deputy Commissioner Parent’s as well) was a lack of basic due diligence and not an intentional misrepresentation.  The facts I lay out above are so plain and so universally known and undisputed that there is still grave fault on DEP’s part on “due diligence” but I am satisfied that the misinformation derives only from that lack of  even basic due diligence.
In the workings of law in any state, the agency charged with implementing a statute and writing its rules is presumed to have superor knowledge and indeed that is essential.  Applying that to the  high envionemntal liability, high public liability risk where that superior knowledge clearly does not exist and has not been sought is extremely dangerous.
I urge you to immediately rectify your past and very recent mis advice to the JSCRENR and the BEP present and past by a formal letter correcting your mis advice and explaining how you came by that understanding that tailings impoundments are temporary structures used only in the course of operations and then removed.
 In light of the gravity of consequence of this lack of due diligence on the part of DEP to the major public liability environmental  security risks of metallic mining in a high Sulphur high arsenic VMS deposit I request that DEP stop the clock and withdraw the rule from further consideration while DEP seeks better guidance through the convening of a multi expert technical panel to lay out for all of us the essential foundations of law and policy on metallic mining in volcanogenic massive sulfides, the secnd highest  geological risk group of all metallic mining.  I had previously named for JSCENR Co-Chair Dr. Tom Saviello a specific panel composition and all but one, although always fully committed for months ahead had agreed to serve, provided the committee is coordinated   by a person  independent of DEP JSCENR and all lobbyists who has recognized competence.  The work product Bowker Associates had suggested in private correspondence with Dr. Saviello, nitated by him, was a very short piece on essential foundations and mandates which could then be presented to all, DEP, BEP, JSCENR and the public  and from which a meaningful workable and effective complete legal fraeowrk could be created, again wth continuing guidance by the expert panel.  Dr. Savilllo indicated to me ( and others) in private correspondence that he agreed with this approach, had presented it to DEP and had received no reply. If that is so, DEP’s actions exceed a failure of due diligence.
Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager
Bowker Associates
Science & Research In The Public Interest
15 Cove Meadow Rd.
Stonington, Maine 04681
Posted in bannaism of maine, Catastrophic Tailings Failures, Catatrophic Tailings Dam Failures, Causes Of Catastrophic Tailings Dam Failures, Maine Mining Law, Maine Mining Regulations, Maine Mining Rules, Mining In Maine, Uncategorized | Leave a comment

Maine’s Statute & It’s Draft Implementing Rules Score Poorly on Catastrophic Failure Risk Assessment

FOR IMMEDIATE RELEASE   September 14, 2016  1333 EST   Contact lindsaynewlandbowker@gmail.com 207 367 5145



Lindsay Newland Bowker, CPCU ARM, Environmental Risk Manager

Risk of Catastrophic Failure analysis of Maine’s Mining Statute ( Pl 2011 c.653) and its now under review draft rule concludes that Maine’s statute itself is a potential root cause of such failure as has been the case in many of history’s most dramatic and costly failures including Mt Polley and Samarco, both modern mines and both among in history’s top 10 in terms of consequence and scale of failure. Maine’s statute scored 43 out of a maximum “worst case” score of 50 and is classified as “High Risk”, against 5 key criteria focused on most commonly found root causes of catastrophic failure.

Although the poorly framed, poorly informed Maine statute is among the worst among post 1990 new laws and overhauls it nevertheless contained a few very common mandates including “technical and financial capacity of the applicant” and a mandate for the use of best proven technology . Otherwise it is vague on mandates on policy, but with no changes in statute at all it would be possible to write a rule substantially reducing risk of catastrophic failure. This risk assessment analysis concludes that a score of 16 out of a possible best case score of 10 can be attained within the existing statute despite its many flaws, gaps, internal inconsistencies and contradictions through wiser better informed rules alone. .

The statute’s implementing rule drafted by the Department of Environmental  Protection (DEP) and accepted for review by Maine’s unique Citizen Panel (Board of Environmental Protection,(BEP)) scored lower than the statute itself at 44 out of a “worst case”  score of 50 because it constructively nullified the key mandates of the statute by not developing them. Its low score was otherwise attributable to  dropping better and more professional language in the 1991 draft rule that is not in any conflict with statute and not including any useable language that would be effective in preventing or reducing the risk of catastrophic non remediable failure.

Michigans new rule for non ferrous metals, well known to Maine’s DEP and the legislative committee of jurisdiction ( JSCENR)  and developed specifically for sulphides, the  kind of high risk metallic mineralization Maine has, contains provisions  addressing may of the root causes of catastrophic failure scores 32 out of  a worst case score of 50.

In Maines latest draft rules, that difference between what is possible and its best possible outcome score of 16 and the score of 44 is a void in which the seeds of catastrophic failure can germinate, incubate and mature to a manmade catastrophic failure. Of the 33 million tons of metallically mineralized rock at the state’s largest metallic deposit, Bald Mountain, 22 million tonnes will become toxic high arsenic tailings with high ARD potential and another 11 million tonnes of wastes posing high level environmental security risks so there is significant  potential for a man made catastrophic failure at Bald Mountain , should any mining at all ever become economically viable, under the present statute as “risk elevated” by DEP’s draft rule.

A tailings facility failure would travel many kilometers not thousands of feet and result in a complete non remediabe loss of downstream lands ponds, streams and brooks and all terrestal and marine habitat .Tailings can never become soils capable of supporting and sustaining any kind of plant life long term as a recent evaluation of the Los Frailles failure in Spain has shown . At a previously undocumented 1937 failure in Mexico which we discovered and have added to our global failures database 1906-2016, to this day no sustained growth has occurred on the lands despoiled by the tailings flow 80 years ago.

Michigan’s statutes, indeed most presently governing statutes world wide including New Mexico’s relatively new statute  would score not much better than Maine’s.  Improvements in the legal framework for mining have come mainly through  rules.  West Australia for instance working form a very primitive pre modern legal framework has developed one of the wisest and most comprehensive rules in the world.

The full report  will be submitted as  Bowker Associates testimony on the draft rule and published as a case study further developing and now applying our work with eminent Geophysicist on the relationship between mining economics environmental risk and public liability.



Posted in Analysis TSF Failures, Bald Mountain Aroostook Maine, BEP, Bowker Associates Science & Research In The Public Interest, Catastrophic Tailings Failures, Causes Of Catastrophic Tailings Dam Failures, Center For Science In Public Participation, CSP2, CU-Arsenic Standards For Concentrates, David M. Chambers, Environmental Risk Management, Global Capital Squeeze In Mining, History of Mining In Maine, Imperial Metals, lacustrine mine waste disposal, Maine Mining Law, Maine Mining Regulations, Maine Mining Rules, Maine Mining Statute, Metallic Mining Risk Management, Mine Feasibility, Mine Risk Management, Mining Economics, mining environmental risk management, Mining Financial Feasibility, Mining In Maine, Mining Regulation, Mining Risk Management, Uncategorized | Leave a comment

Maine’s Pristine Public Lands In Statutory Limbo: Large Scale Metallic Mining On Public Lands Presently Authorized Under Relaxed Environmental Law

Mining, including Metallic Mining, has been allowed by Statute  in Maine back to 1977 under Title 12, the statute that protects and conserves public lands.  Referred to as the “Mining on Public Lands Statute”,  it designates  “Director of Survey ( Sate Geologist Dr. Robert Marvinney), not DEP, as the regulatory authority for establishing rules and for  writing ,reviewing and approving permits pursuant to those rules.  The “Mining on Public Lands Statute” under Title 12, was last substantively revised in 1985 when Maine was going through its last turbulent push for metallic mining in Maine.  In that same legislative session, a separate one line statute clearly addressed to all other lands  directed DEP and LURC ( Now LUPC) to jointly write rules for metallic mining.  After a 6 year hulabaloo, mostly arising from then DEP Commissioners refusal to accept mining applications without implementing rules and a long delay in getting to that, the “19991 rules” emerged and are still the state’s official mining rules.

Due to a technical error in drafting the new mining staute that replaced that 1985 one liner,  the 2011 statute (PL 2011 C. 653) became law in July 2016 without its implementing regulations which were twice rejected by the State legislature.  The sweeping changes in environmental law  specifically to accommodate metallic mining  therefore also apply  to metallic mining on  public lands.  No rules or procedures have ever been developed for exploration, claims and mining on public lands and the Department of Agriculture Conservation and Forestry’s (JSCACF)public guidance on the Mining On Public Lands Statute makes no reference whatsoever to the mining statute or the DEP/LUPC permitting process directed under Article 9 of that statute.   The current posting dates to September 2013.

According to one long term member of the JSCACF there has never been any discussion of, or reference to, the possible effects on Public Lands of the separate and lower environmental standards set by Title 38 changes to environmental law.  Dr. Marvinney, “Director of Survey” seems to believe that the twice rejected DEP rules apply to public lands as well.

In his testimony September 15th 2016 before the BEP as the only witness in support of the draft mining rules, Dr.Marvinney’s testimony on his authority under the “Mining on Public Lands” statute, seems to conflict with the plain reading of the staute.  Dr. Marvinney asserts that his authority is only for granting or not granting a lease to mine on public lands and that if the lease is granted that lessee would then apply to DEP under the Article 9 of Pl 2011 C.653.  Dr. Marvinney did, however, acknowledge that something like a large scale mine or a large open pit would trigger the requirement for a 2/3  majority approval in both houses of the legislature.

Daniel Tratakoff, Legislative Analyst for JSCENR,  the Committee who created the Metallic Mining Statute, has written to Bowker Associates  that JSCENR has been aware of the contradictions and conflicts between the two different mining statutes  and wrestled with it at length without any clarifying statements or changes to their Mining Law PL 2011 c. 653.

On closer re examination of the legislative history of the Metallic Mining Statute PL 2011 C. 653, it is clear that the concept draft envisioned that the article 9 rules ( then not fleshed out) would provide unified review under DEP/BEP for all metallic mining.  It appears that this was not actually effectuated and that DEP does not have any statutory authority for rule making or permitting under the “Mining on Public Lands” statute.  Perhaps that was intended in the phrase “Mining Applications reviewed uder this Article do not require permitting” but  the clarifying language needed to extend that to Public Lands as well was not part of the overall law ( PL 2011 C. 653) even though other changes to Title 12 were made as part of PL2011 C.653.

Despite overwhelming and committed public opposition, JSCENR has made no changes to its poorly informed badly written law.  DEP has initiated new rule making which was to be briefed on September 7th at 1pm .  That briefing did not occur. BEP has voted unanimously to accept the rule for review  and public comment on it is now open with a public haring secluded  September 15th at 9 AM.  The new rule simply omits all  specific reference to public lands removing specific prohibitions on mining on or near public lands which had initially been in the rule as first submitted to BEP.  New language has been added, however, prohibiting  the “extraction of ore”  on or under coastal waters, great ponds, and  upstream of streams or brooks used for public drinking supply .  If Alder Pond  exceeds which has an active exploration permit has a mineralized vaguely explored deposit under the lake which was deemed not economical for exploration in prior investigation.   Alder Pond was addressed in Dr. Marvinney’s September 15th testimony before the BEP and as a submerged land falls under Title 12, 549 the mining on public lands statute. Apparently the prohibition on ore extractions in the pending Chapter 200 rule does not include Alder Pond.  The “Mining on Public Lands Statute” specifically authorizes the draining or diversion of lakes and  streams “to facilitate mining” thus raising the specter of  draining lakes for use as tailings impoundments or mine waste dumps  or for submarine deposition of Acid Rock Generating waste in lakes or rivers. There is no scientific evidence of “no harm” from such practices nor is there evidence that Acid Generation is permanently suppressed.

Bowker Associates therefore wrote and submitted  following summary to JSCENR, JSCACF, DEP, BEPand “Director of Survey ” Dr. Marvinney  urging them to clarify the present status of existing law as to metallic mining on public lands .  To date we have received no response or acknowledgment.

At the September 7th JSCENR, in an exchange with Deputy Commissioner Loyzim, the JSCENR and DEP acknowledged that the Attorney Generals advice as to jurisdiction for mining rules on public lands comports fully with our analysis.  As this is the last meeting of the presently constituted JSCENR no specific action was taken beyond acknowledging the resolution lies with JSCACF.

There are no transcripts of JSCENR work sessions or meetings but we understand videographer Eric A Tuttle did film the entre segment on mining and we hope to be able to offer you a link to that video on the next few days.


Bottom line.  No change in stasus of public lands.


Dear Members of the JSCENR, JSCACF, Commissioner Mercer, Commissioner Livesay , Dr. Marvinney and Ms. Bertocci & Members of the BEP

I hope the following analysis will be helpful in addressing the public’s and the legislature’s concerns about metallic mining on public lands. Bowker Associates did not retain counsel in forming this summary nor do we think that is necessary.  It seems very clear that as to rule making DEP/BEP have no authority to write rules for metallic mining on public lands.  That authority rests with Dr. Marvinney as “Director of the Survey“.

The language of the original concept draft was that ALL metallic mining review and approval would fall under DEP through Article 9 however the mining proponent influence was so focused  on JD Irvings interests at Bald Mountain that it appears this was not actually effected with respect to public lands in the final as enacted PL 2011 C.653.

Under the separately titled “Statute for Mining on Public Lands” there is a duty to ascertain that the planned use is “consistent with the trust” and the designated land use of the public lands and its surroundings but permit application and review is under the Director of Survey, not DEP as the law presently reads.

Of course all the Title 38 ( environmental law changes) of PL 2011 C.653 also apply to public lands and of course DEP has authority to enforce those laws however all actually remove  mining so there is nothing to oversee or enforce.

The provisions of the changed Natural Resource Protection Law are in direct conflict with the provisions of Title 12 in that Public Lands Law sets the a very clear dual mandate of “no environmental harm” and  the mandate of consistency with the established “trust” and established land use.  Natural Resources Law modifications specifically states that no  better use than mining exists.

 JSCENR legislative analyst  Dan Tartakoff has already acknowledged that  there are recognized and as yet unresolved ambiguities and inconsistencies  as between the mandate of Article 9 and the separate mandate of the “Mining on Public Lands Statute” and that JSCENR recognized that these ambiguities could only  be resolved in consultation with JSCACF  Mr. Tartakoff in  his written summary to us  said the JSCENR felt there was nothing they could do to resolve this in the timeframe  they had for action last session.

   It is in JSCENR’s power to address that error now by correcting PL 2011 c 653 to recognize explicitly  that the changes do not apply to metallic mining on public lands or to change Title 12 to clearly stipulate that article 9 applies to all metallic mining in public lands. .  Bowker Associates is hereby  making that recommendation as an emergency measure.  That should be taken up as part of the JSCENR briefing on the re initiation of rules and some form of public announcement should be made to clarify for the public what the present legal status is of metallic mining on public lands  and that any public concerns or objections to this status can only be addressed statutorily via change to PL 2011 c 653 Title 38  changes and/ or to the long standing policy of allowing metallic mining on public lands along with many other forms of nonmetallic mining.

   There is no question that the public at  large , the legislature and environmental advocates,   thanks to the work of Lew Kingsbury , will be focused mainly on outrage at the very idea of any metallic mining on public lands other than recreational and artisanal ( e.g. recreational gold panning).  There is no question that this gravely offends public  and bipartisan legislative sensibility.  Taking some protective reassuring clarifying legislative action to address JSCENR/JSCACF intent with respect to metallic mining on public lands may be essential to even preserving the public tolerance for the idea of metallic mining anywhere in Maine.

Lew Kingsbury’s argument that the use of the statutory authority for mining in general  under  the Mining On Public Lands Statute  to automatically allow metallic mining as well  would require a 2/3  vote of the legislature for each project is valid and obviously correct.

That would still apply whether or not JSCENR takes this opportunity to correct its prior action on metallic mining via PL 2011 C. 653.

I understand Lew  has brought this to the Attorney General.

JSCACF and or petition from Dr. Marvinney could and perhaps should trigger statutory clarification affirming Lew’s  reasonable and logical interpretation of the “Mining on Public Lands” Statute. This clarification is currently not part of the Department of Conservations Public Guidance on mining on Public Lands as posted September 2013.

If Director of Survey (Dr. Marvinney) does not concur with Lew’s interpretation ( which seems obviously correct) then the only resolution is statutory via clarifications to the “Mining on Public Lands Statute”

Of course there is no question that public sentiment and likely legislative majority sentiment will be for an outright ban on metallic mining on public lands

This summary/briefing was prepared for, and has been used  in, our ongoing collaborative work with all stakeholders and parties with legal obligation and authority in this matter as well as with press.  It will be posted at our website in its entirety as an ongoing guide and press reference. Our site and our counsel serves the Wall Street Journal, Reuters, Associated Press, Major dailies in Brazil, London and Australia as well as major international mining magazines and journals and US and international investor analysts.

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681

207 367 5145



Posted in Maine Mining Rules, Metallic Mining On Public Lands, Mining In Maine, Uncategorized | Tagged , , , , , , | Leave a comment


Moments ago Vale, BHP and Samarco concluded their press conference presenting the findings of their indepdendent panel on the causes of the Fundao Tailings dam failure . The report was commissioned by Vale. A full copy in English is up at http://www.fundaoinvestigation.com/  Users must register to access.

Within the narrow frame of “proximate causes” the report identifies three major inter related factors that combined to set up the failure events

Another central aspect is how their deposition was influenced by a series of unplanned occurrences during the dam’s construction and operation. Together, these incidents established the conditions that allowed the failure to take place. These included: (1) damage to the original Starter Dam that resulted in increased saturation; (2) deposition of slimes in areas where this was not intended; and (3) structural problems with a concrete conduit that caused the dam to be raised over the slimes.:Fundao Investigation Report


At its heart this means that  the separation of slimes and sands  was not achieved  as intended and planned in the original design.  This ineffective separation of slimes and sands , in combination with  the sands not having adequate drainage on which efficacy of the design depended resulted in the liquefaction and failure..

 The design was not adaptable to variation in the proportion of sands and slimes received. And most importantly, it depended on achieving adequate drainage of the sands.

A root cause was  construction errors in the drainage system for dike 1 ( holding the sands) that became apparent through a leak almost immediately after the dam was placed in service in 2009.  These construction errors were never fully corrected thus failing to provide from the outset the core elements on which the safety of the dam’s design depended

 Engineering investigations later revealed serious construction flaws in the base drain and its filters, including a portion of the drain’s outlet that had never been completed. This allowed water pressure within it to build until causing the slope to erode and slump. As these investigations continued, the impending rainy season made it too late to fully restore the drainage features to their original condition, making it impossible to repair the damage. Instead, all of the drains were sealed. With this, the most important element of the original design concept became inoperative.


Both in the press conference and in the report the panel did an excellent job of presenting in plain English all could understand where and how the failure occurred, fulfilling.their two main mandates under the contract with Vale.

The failure occurred in the left abutment of the sands dam in an area that had been temporarily set back from the original design in an effort to relieve pressures while  work to correct the draingae deficiencies  discovered at the outset of operations at the Fundao were being undertaken.  However, the set back section where the November 5, 2015 failure occurred  was over  unstable sands where prior problems had already been identified.


It became evident for the Main Gallery at the right abutment when in July, 2010 a vortex appeared in the reservoir above it, showing that tailings and water were entering. Inspections revealed cracking and structural damage from foundation settlement and construction defects. Were either of the galleries to collapse, uncontrolled release of tailings from the reservoir or failure of the dam would be possible. So in January, 2011 a program of jet grouting was initiated to repair the Main Gallery and return it to service. Similar conditions were discovered for the Secondary Gallery, and jet grouting was undertaken there as well. But by July, 2012, it was apparent that jet grouting had not cured these problems. After a sinkhole appeared in the tailings overlying the Secondary Gallery in November, 2012, repair efforts were abandoned. Instead, plans were made to plug both galleries by filling them with concrete from their outlets to a point beneath the projected crest of the 920 raise in order to prevent their collapse. Moreover, it was discovered from structural analyses that the Secondary Gallery could not support tailings higher than El. 845 m, some 10 m lower than the tailings already were at that time. Because the height of tailings at the left abutment already exceeded the load capacity of the Secondary Gallery, the dam could not be raised any further over this area until the plugging operation was completed. As a temporary solution, it was decided to realign the dam at the left abutment by moving it back behind the portion of the gallery to be filled with concrete so that embankment raising could continue. This realignment shown on Figure  2-10 became the “setback”. The setback would move the crest closer to the reservoir water and the slimes it contained, but it was anticipated that the dam would be quickly returned to its original alignment as soon as the plugging operations were done. At the same time, as will be explained more fully in Section  5, moving the crest back from its original alignment would also place it closer to, if not over, areas where beach encroachment and slimes deposition had already occurred.



The focus on “proximate cause of failure” is standard for dam failure reports so the limitations imposed by Vale on the panel are not substantially different from those imposed by Government commissioned cause of failure investigations.However,    the narrow contractually defined focus on “proximate cause of failure “, masks avoids and obfuscates all questions of material  relevance to a more comprehensive understanding of causes of failure and of the role Samarco, Vale and BHP played in fostering and furthering those root causes.

Although the carefully worded report does open avenues of inquiry to a more complete understanding of causes of failure, the impression left at the press conference was that the sudden liquefaction, that is where solids behave like liquids because of their saturation levels, was not detectable by conventional means of monitoring or to the naked eye.  This impressions suggests , whether intentionally or not , that adequate supervision and oversight would not have detected the conditions that emerged continually from inception of operations of the Fundao which went on  line in 2009.

Of course as this was not a Government report it in no way binds or limits what  the Brazil Prosecutor and police from continuing their investigations and further pursuing the many criminal and civil actions still outstanding against Vale, BHP and Samarco.  Panel members who are contractually constrained from saying more contractually can still say more  under oath under compulsion of subpoena.The United Nations most likely will also not consider their issues resolved or addressed by this investigation report.

Meanwhile BHP and Vale, if not Samarco, will get a bit of a boost with investors from investment analysts who will be so excited by this report they won’t stop for a second before announcing BHP Vale and Samrco vindicated by expert panel. Watch. Inevitable.

The presentation was made by the elegant serene Dr  Norbert Morgenstern,panel Chair and followed by questions from press . It was  limited only to what they were contractually asked and allowed to address by Vale, their employer and a key contributor to the events.  The carefully narrowly delineated scope, gives the impression as they did at Mt. Polley,  that even though the failure was well advanced and inevitable ( my words but a fair summary of the carefully spoken Dr. M’s) it was not detectable by any customary monitoring equipment  or by the human eye.


Dr.. Morgenstern, also chaired the Government commissioned Mt Polley Investigation Commission .  Samarco panel member  Dr.Steven Vick also served on the Mt Polley panel and has served on numerous other failure committees often managimg to speak beyond the contractual limitations .to deviation from best knowledge and best .  On the Mt Polley report the panel also managed to speak more fully to underlyig causes that was perhaps intended  by the Government opening pathways toward solutions that are still being explored and advanced throughout the industry..

It is not explicitly stated at the press conference or stated in the framing of the Fundao failure report that this was beyond the panels scope  pro  but there is a disturbing absence  of context for  causal events in  best practice, best knowledge best available technology both n the press conference presentation and in the written report.

This can still be added by  the Brazilian prosecutor sand police.

On particulars.


Rate of Raise


 The quiet dignified immaculately groomed   Dr. Morgenstern ducked the rate of raise question as a contributing cause.many times.  The first time he straight out papered over it stating what the maximum design height was and that the TSF was receiving what was generated and moving towards that planned height. The rate of raise and the design height, as he very  well knows  violates the 10 commandments for upstream dam construction .  I have to look ..wasn’t he a co author on that and an original contributor to those 10 commandments?

  It is a huge huge failing that the panel did not speak to that when specifically asked several times.  To the second question on rate of raise as a contributing factor Dr. Morgenstern said the full record was in the report and gave the exact location. In another comment he noted that the right abutment had the same rate of raise and showed no deformation .


In the report however  the panel points out that the safety and efficacy of the planned rate of raise  depended on dry sands stack and clear separation of slimes as intended in the original design but never realized in  the construction of the dam.in the orginal design.

Additionally, the balance between sands and slimes crucial to the dam raising plan was changed. Filling of Dike 2 had begun earlier than anticipated, making its slimes level higher, not lower, than the projected sands in Dike 1. At the same time, reduction in pellet production reduced the amount of sand available while delivery of slimes continued. This required construction of yet a third dike between Dikes 1 and 2, designated Dike 1A, to provide additional slimes capacity. It was November 2010 before all of the measures made necessary by the piping incident were finally completed.  It remained to devise a new design concept to replace the old one.


(dike 2 is the slimes dike intended to mainatn the essential separation between slimes and sands.)  At the press conference Dr. Morgenstern had many opportunities to explain this in answer to the  several questions on rate of raise as a contributing factor.

In the report Dr. Morgenstern seems to be backing away from the 10 commandments on safe upstream construction and suggesting that  conventional slurry deposition at very large very high upstream dams can be done safely if adequate drainage is maintained and adequate separation of slimes is maintained throughout.  Or perhaps in this context he wanted to keep the focus clearly and mainly on the importance of  of a dry sand stack to dam safety and that of course is pre eminent over height and size considerations in any earthen impoundment using slurry deposition.


A surprise were the findings and questions on the earthquake.  Panel ( as spoken for by Dr. Morgenstern) said the earthquake definitely preceded the failure and they had examined the records carefully on that ( have to read the report to see how they established the time of failure).  In the 1937 Mexico failure where the failure precipitated the earthquake a very loud clap preceded the actual break and the clap was the start of the big slide which triggered the earthquake.  He said the panel found that the role of the earthquake was only as an accelerant of an already advanced failure condition.


He did note though that the right abutment showed no deformation nor other “adverse response” to the little tremor.

I was surprised that in discussing the relative effect of the small tremors he did not bring out that under the undrained conditions of the Fundao a hair trigger even from construction vibrations could set off a liquefaction slide.  Also he did not offer any guidance or information on the procedues for USA ( undrained stability analysis) or the importance of using that analysis especially when a dam design depends so critically on a totally dry and stable state as the panel itself  noted.  Instead of referring to USA and the absence of any USA at the Samarco operations he said that the type of monitoring  needed to detect the growing saturation within the stack were not customary.  

Design, Or Implementation of Design at Fault

 At the outset of the press conference Vale’s Press Secretry said that press questions were to be limited to the content presented and that all questions of fault or otherwise outside the spefic material in the report ” would be disregarded” 

Dr. Morgenstern specifically ducked all questions about whether the failure in the drainage was a result of design of the drainage system or a flaw in the construction of  a good design saying it was not in their scope to address beyond proximate cause of failure the standard limitation in all dam failure reports.


Left Abutment a Deviation from Design.


On the same basis he ducked very well researched and very well informed questions about whether the left abutment was a deviation from original design and whether the original design would have held ( the failure was at  that abutment to  which one time engineer in charge  Pimenta De Avila had referred many times as an unstudied deviation from the original design).     The report is very clear that the left abutment was a deviation  and that its intent was t compensate for  noted drainage problems.


All in all I’d say the report. not unlike the Mt Polley report is a sort of red herring taking analysis away from a more comprehensive analysis of root causes of failure and if it is allowed to stand unchallenged in that regard gives BHP Vale and even Samarco a big hall pass.

 Ducked All Questions About Vale’s Illegal Dumping At The Fundao

Several press asked about the documented amounts Vale desposited in the tailings dam without authority from Minas Gerais Offcials and whether that contributed to the failure or escalated the risk.  To all  Dr. Mogenstern calmly said their scope was limited only to the sequence of geophysical events leading to failure.

No Examination of Deviation From Advice of Inpdependent Panel & Advisors

There were no questions and no answers would have been forthcoming anyway on what the mine independent panel chaired by  Angela Kuipers  had advised in any of these matters nor on what the advisory board  including Dr. Andrew Macgrgeor Robertson, head of Info mine and of Mining.com had to say.  The report indicates that the panel had complete access to all these records. 


All in all I guess I am saying the use of some very distinguished people in the field to pull off a giant white wash of the real issues and a full examination of the real causes of failure is an insult and perhaps injury to the public interest  unless the bold Brazilian prosecutor acts to make sure this hall pass does not stand.


I was very very impressed by the in depth knowledge all press had and it is shameful that unapologetically so many good questions directly relevant and key to a more thorough examination of root causes were  met with “that was not in the purview of our commission”( my summary phrase of the many different ways Dr .Morgenstern responded to key questions.

I think Dr. Morgenstern and Dr. Vick owe the world.  They should never have accepted a commission  to do this for Vale knowing full well what constraints would attend.  No doubt they are also contractually required to be silent forever in all these other questions and to not speak publicly ever beyond what is on the contract given to the panel and the report they generated pursuant to that obfuscating scope.


 A subpoena trumps that contractual obligation and the elegant Dr. Morgenstern may yet have to answer those questions as a key expert witness.    



Lindsay Newland Bowker, CPCU ARM

Managing Director

Bowker Associates, Science & Research In The Public Interest

207 367-5145





Very encouraging to see this level of competence, also very evident in the press conference, in mainstream media and press and also among business and investment analysts. Mining proponents have traditionally had nearly complete control of information  including the collective  witholding of public information about very serious failures.  These wonderful accurate and technically proficient accounts of what the report said and  didn’t say are the seeds of change from which mining reform will spring. These journalists  are holding the light on the path to zero failure and serving the public interest with excellence.

Perhaps 9 months ago when the eminent Dr’s Morgenstern and Vick agreed to work for Vale on this it wasn’t clear how much of the story would ever be told or understood. Both have worked all their careers for responsible mining  and for research which has created the enduring foundations of best knowledge and best practice.  Perhaps they thought  that even with the  extremely narrow mandate  of their commission the truth would be obvious.

This impressive list of main stream media and press  coverage on their work certainly has accomplished that, whatever their still unspoken intent and hopes..The Brazilian Prosecutor has gone on record  as citing the report as useful to their continued move to rejection of the settlement agreement and toward an ultimate settlement amount of $45 billion under for which by law BHP, Vale and Samarco are already jointly and severally liable.  The police investigation pursuing criminal charges including against a Vale engineer who falsified records  has also stated publicly  to these journalists that the report reaffirms and exactly parallels  their own investigations and conclusions.

It is heartening to me to see the individual impressions, questions and analysis in each of these accounts.  These articles are all more than just a competent cut and paste of bits and pieces of a report and situation they don’t understand. Each fully understands the larger context and implications and each offers a valuable insight for a framing that yields insight.

To each and all..thank you for your important work in the public interest.

Lindsay Newland Bowker September 1, 2016 Stonington Maine








Wall Street Journal has a similar take on the report headlining that it adds little new to either understanding the causes of failure or leading us to solutions.http://www.wsj.com/articles/companies-report-on-brazil-dam-failure-adds-little-new-on-causes-1472512948  Paul Kiernan ( who lives in Brazil) and Rhianon Hoyle(Reuters), both main stream press/media have followed the Samarco failure from the first day and have each attained a level of competence and  understanding of mining and its social, economic and environmental foot print on the world.  This coverage is far more insightful ( and accurate that what appeared in Mining.Com.


FORTUNE  http://fortune.com/2016/08/30/samarco-disaster-investigation-cause/  accurate and well presented..echoes Wall St Journal Observation that the report added little to what was already known and already the basis for the Barzil Prosecutors $45 billion against BHP, Vale and Samarco and of the police investigations seeking criminal indictments against Samarco’s  former President and a Vale Senior Engneer.


MINE WEB 9/1/2016  http://www.minePweb.com/regions/central-and-south-america/we-will-learn-from-this-tragedy-bhp/

https://translate.google.com/translate?hl=en&sl=pt&u=http://infraestruturaurbana.pini.com.br/solucoes-tecnicas/noticias/relatorio-independente-diz-que-rompimento-da-barragem-de-fundao-aconteceu-372445-1.aspx&prev=search excellent Portuguese language ( English translation) account of the reprt in a professional engineering magazine..  Overstates the reports finding on the original design as “robust”.  The report in fact said the dam was dependent on the drainage system for keeping sands dry and the dkes for for keeping slimes separate but was not flexible enough to handle the slimes vlume that actually emerged.  The drainage failure, as accurately explained in this piece, was due to a construction error from which the project never relay recovered.  This lead to several deviations from the original plan,including the set back of the left autent after it was determined the elevation was already too high for safety.


https://translate.google.com/translate?hl=en&sl=pt&u=http://www.valor.com.br/empresas/4691183/relatorio-aponta-falha-de-construcao-em-drenos-da-barragem-da-samarco&prev=search Another very accurate account based on an acutal reading of the report more than the press conference.  Clearly got the drift that this started wth a deficiency in implementation of the design as the dam was being built detected in 2010 through a leak of running water through the face of dike 1, the sands dam.  The dam had to be drained to investigate and attempt to fix  but when it was excavated it was apparent it wasn’t just broken it was missing entire sections that were called for on the dam design.  .   This article accurately summarizes the series of mis steps and ad hoc adjustments made thereafter which finally and irrevocably culminated in failureaccrding to the expert panel.



BBC summarizes the report as a series of design and construction errors cited cause of failure.  This includes a statement by the Brazil Prosecutor that essentially the report just adds details to what their investigation, now asserting a claim of $43 billion, already showed.

REUTERS (Stephen Eisenhammer)  http://www.reuters.com/article/us-brazil-mining-samarco-idUSKCN114259

BLOOMBERG MARKETS  .. no mincing words here http://www.bloomberg.com/news/articles/2016-08-31/bhp-ceo-mackenzie-s-bonus-axed-after-fatal-samarco-dam-failure and headline is BHP CEO’s slahed bnus owing to the Samarco disaster.

PANARMENIAN NEWS  http://www.panarmenian.net/eng/news/219674/  straight talk here as well with quotes from Brazil Prosecutor http://www.panarmenian.net/eng/news/219674/



Posted in A. Macg. Robertson, Catastrophic Tailings Failures, Causes Of Catastrophic Tailings Dam Failures, Environmental Risk Management, Fundao Talings Dam, Germano Tailings Dam Failure, Height Limits of Earthen Dams, Metallic Mining Risk Management, Mine Risk Management, mining public liability, Pimenta De Avilar, politics of mining, Public Liability & Financial Risk, Rate of Raise for Upstream Tailings Dams, Samarco Dam Failure, Samarco Indepemdent Panel Report, Uncategorized | Leave a comment

Share Holder Litigation Puts Spotlight On Environmental Risk

Madison Condon, JD, Fellow

Earth Institute, Columbia University



Dear Ms.  Condon:


Thank you for your stunning and seminal work accurately drawing the arc between massive investor losses and poorly developed mining projects  which manifest also in levels of catastrophic public liability and non remediable loss of natural resources.


There is so much false miner supplied information among all the metals  bond raters and equity analysts I am amazed that investor lawsuits have not also named  the analysts who have a presumed underlying expertise.  The correspondence between the text of webcasts from the miners and what appears as analysis with no apparent independent vetting is stunning and inexcusable.


We have followed the thread on a few mines in development to monitor what becomes of the capital raised in public equity markets.  Shocking.  One Canadian company actually lost all the funds raised in public markets on derivatives.  They simply changed their name and went right back to market and more fundraising under the exact same permits. 


How is it that Samarco is all but flat broke after those two huge >$1 billion bond offerings one in July just months before the avoidable failure.  Where did that capital go?  Has anyone tracked that? 


I hope your work as fellow at Columbia Earth Institute will keep you on this important topic of the link between mining investor losses and public liability losses. I think it is a cornerstone reality that the things about mining projects that cost investors billions  also cost governments and the public billions in damages .  It is  one in the same.



Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681


207 367 5145




Posted in Analysis TSF Failures, Bowker Associates Science & Research In The Public Interest, Catastrophic Tailings Failures, Causes Of Catastrophic Tailings Dam Failures, Earth Institute Columbia University, financial risk and public liability, Fundao Talings Dam, Germano Tailings Dam Failure, Global Capital Squeeze In Mining, global cash flow crunch, Highly Valued Natural Resources, Lindsay Newland Bowker, Measuring Magnitude of Consequence TSF Failures, Metallic Mining, Mining Economics, mining environmental risk management, Mining Financial Feasibility, mining investor lawsuits, mining public liability, Mining Regulation, Public Liability & Financial Risk, Responsible Mining, Risk & Public Liability of Tailings Dams, Risk Avoidance & Loss Prevention Metallic Mining, Risk Economics and Public Liability of Tailings Dam Failures, Samarco $44 billion lawsuit by Brazil, Samarco Environmental Crimes Investigation, Samarco falha de barragem de rejeitos, Samarco investigação de crimes ambientais, Samarco Mineracao S.A., Samarco Murder Charges, Social Premium of Metallic Mining, Tailings Dam Failures, Tailings Dam Risk Management, TSF Failure Environmental Costs, Uncategorized, unfunded public and enviornmental liabilities, Vale Indictments, Vale SA. | Leave a comment

Samarco Mine Disaster – UN Experts Welcome Settlement Suspension and Call for a Timely & Equitable Resolution

The following text, in English and in Portuguese is as issued by the UN Special Procedures, Human Rights. They have been actively engaged and independently investigating and monitoring on the ground in Brazil since immediately after the disaster in November 2015. The press release speaks to the recent action overturning the court ratification of the settlement agreement which left all control of settlement with the miner although retaining a government oversight committee with no clear mandates or funding for exercise of the broad mandate given. Bowker Associates has posted favorably on other aspects of the agreement as a spring board for pre planning recovery and settlement in the event of disaster but has called from the beginning for an independent claims management litigation support entity to do outreach, formulate and present claims and track them to conclusion. Bowker Associates has also called for an independent team of architects and planners to work with the displaced of Bento on the master plan for the new Bento and its resettlement.

Contact: Lindsay Newland Bowker, Managing Director Bowker Associates Science & Research In The Public Interest

207 367 5145   lindsaynewlandbowker@gmail.com

 GENEVA (5 July 2016) – A group of United Nations human rights experts today commended the decision of the Brazilian Superior Court of Justice to suspend the settlement reached between the Government of Brazil and Samarco Mining S.A., and its parent companies Vale S.A. and BHP Billiton Brazil Ltda in response to what has been described as the worst socio-environmental disaster in the country’s history. 

 “The agreed settlement ignored the victims’ human rights, and its suspension on 1 July is a perfect opportunity to perform a thorough human rights-based review of the remedies and compensations due to the victims with transparency and public participation” the experts said. “We urge the Brazilian Government to seize it in order to address timely and adequately persisting human rights concerns.”

 In November 2015, the collapse of a tailing dam in Mariana in the state of Minas Gerais released about 50 million tonnes of iron ore waste, exacerbating the levels of several toxic substances, over approximately 700km of several rivers including the vital River Doce. Nineteen people were killed as a direct result of the collapse.

 The lives of 6 million people were severely affected, as many homes and villages were buried or destroyed, and, essential sources of water were contaminated. Sources of food and water for indigenous peoples and local communities were greatly compromised. > > “The Executive powers and companies appeared to have, in their haste, ignored the rights of the victims to information, participation and an effective remedy, and to provide assurance of accountability. For the victims, this adds insult to injury,” said the UN Special Rapporteur on human rights and hazardous substances and wastes, Baskut Tuncak. “They appeared willing to forgo the rights of all victims in an effort to sweep this disaster under the rug.”

 The UN experts noted that Brazil’s public prosecutor estimated the cost of damages at  25 times greater than the amount guaranteed in the initial settlement, and cautioned that the settlement agreement was negotiated at record speed comparing with other environmental disasters of this magnitude, during a tumultuous period for the Government of Brazil, which is mired in a political crisis and allegations of mass corruption.

 “The eventual costs of providing full reparation and compensation to all victims will be colossal, and might be the greatest for water and sanitation,” warned the UN Special Rapporteur on the human right to safe drinking water and sanitation, Léo Heller. 


 The suspended settlement provided for the establishment of a private foundation to undertake several reparatory and compensatory programmes over the next 15 years. In that regard, the UN experts raised alarm about “the abysmal lack of transparency and participation of victims in the negotiation process of the settlement agreement,” and noted that the agreement was not made available to the general public.

 They also expressed serious concerns regarding the governance bodies to be established by the agreement, which would leave little or no room for effective participation of public authorities and the affected communities in the design and execution of the environmental, social and economic programmes. 

 If settled, the mining company would have the power to decide on the indemnities to be given to the affected populations without any possibility of such decisions being subjected to questioning or appeal. Moreover, the agreement did not project sufficient mechanisms to ensure the participation of all affected communities in the implementation of the foundation.  > > “Seizing the opportunity of the suspension, the agreement’s terms must provide adequate safeguards to make sure there will be sufficient funds for all projects. The allocation of funds must be reviewed and decided in accordance with democratic principles and must be applied observing human rights principles,” they stressed. > > The experts’ call has also been endorsed by the UN Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, and the current Chair of the UN Working Group on Business and Human Rights, Pavel Sulyandziga.


 Léo Heller, Baskut Tuncak, Victoria Tauli-Corpuz and Pavel Sulyandziga are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity. Learn more, log on to:  > > Water and sanitation: http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx  > Hazardous wastes: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx  > Indigenous peoples: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx  > Business and human rights: www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx  > > UN Human Rights, country page – Brazil: http://www.ohchr.org/EN/Countries/LACRegion/Pages/BRIndex.aspx  > > For enquiries and media requests, please contact Melinda Ching Simon (+41 22 917 9113 / mchingsimon@ohchr.org) or Patricia Varela (+41 22 928 9234 / pvarela@ohchr.org) or write to srtoxicwaste@ohchr.org  > > For media inquiries related to other UN independent experts:  > Xabier Celaya, UN Human Rights – Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)   > > For your news websites and social media: Multimedia content & key messages relating to our news releases are available on UN Human Rights social media channels, listed below. Please tag us using the proper handles: > Twitter: @UNHumanRights > Facebook: unitednationshumanrights > Instagram: unitednationshumanrights  > Google+: unitednationshumanrights > Youtube: unohchr  > _________________________________  > > NOTA À IMPRENSA  > > Desastre mineiro no Brasil: Especialistas da ONU saúdam suspensão de acordo e pedem uma resolução oportuna > > > GENEBRA (5 de julho de 2016) – Um grupo de especialistas em direitos humanos das Nações Unidas elogiou hoje a decisão do Supremo Tribunal Federal brasileiro de suspender o acordo alcançado entre o governo do Brasil e a Samarco Mineração S.A., junto com suas empresas controladoras Vale S.A. e BHP Billition Brasil Ltda., em resposta ao que tem sido descrito como o maior desastre socioambiental na história do país.  > > “O acordo ignorava os direitos humanos das vítimas, e sua suspensão em 1° de julho é uma oportunidade perfeita para realizar uma completa revisão baseada em direitos humanos das devidas reparações e compensações para as vítimas, com transparência e participação pública”, afirmaram os especialistas. “Pedimos que o governo a aproveite, a fim de abordar de forma oportuna e adequada as persistentes preocupações de direitos humanos”.  > > Em novembro de 2015, o rompimento de uma barragem em Mariana, no estado de Minas Gerais, liberou cerca de 50 milhões de toneladas de rejeito de minério de ferro, supostamente aumentando os níveis de múltiplas substâncias tóxicas em um curso de aproximadamente 700 km de vários rios, incluindo o vital rio Doce. Dezenove pessoas morreram diretamente por causa do colapso. > > As vidas de seis milhões de pessoas foram severamente afetadas, enquanto muitas casas e aldeias foram enterradas ou destruídas, e fontes essencias de água foram contaminadas. Fontes de alimento e água para povos indígenas e comunidades locais ficaram seriamente comprometidas.  > > “Os poderes executivos e as empresas parecem ter, com sua pressa, ignorado os direitos das vítimas à informação, participação e a uma reparação efetiva, bem como a entregar garantias de prestação de contas. Para as vítimas, isso agrava ainda mais a situação”, disse o Relator Especial da ONU sobre direitos humanos e substâncias e resíduos perigosos, Baskut Tuncak. “Eles pareciam dispostos a dispensar os direitos das vítimas em um esforço por varrer esse desastre debaixo do tapete”.  > > Os peritos da ONU observaram que o Ministério Público do Brasil estimou que os custos dos danos são 25 vezes maiores que a quantia considerada no acordo inicial, e alertaram que o acordo foi negociado a velocidade recorde em comparação com outros desastres desta magnitude, durante um tumultuado período para o governo do Brasil, atolado em uma crise política e alegações de corrupção em massa.  > > “Os eventuais custos de fornecer total reparação e compensação para todas as vítimas será colossal, e podem ser os maiores em termos de água e saneamento”, alertou o Relator Especial da ONU sobre o direito humano à água potável e saneamento, Léo Heller.  >    > O acordo  > > O acordo suspenso previa o estabelecimento de uma fundação privada para executar vários programas de reparação e compensação nos próximos 15 anos. Nesse sentido, os especialistas da ONU expressaram preocupação sobre a “deplorável falta de transparência e de participação das vítimas no processo de negociação do acordo”, e notaram que o acordo não foi disponibilizado para o público geral.  > > Eles expressaram também grave preocupação com os órgãos de governança a serem estabelecidos pelo acordo, que deixariam pouca ou nenhuma margem para a efetiva participação das autoridades públicas e das comunidades afetadas no planejamento e execução dos programas ambientais, sociais e econômicos. > > Se for estabelecido, a empresa mineira teria o poder de decidir sobre as indenizações a serem entregues para as populações afetadas sem possibilidade nenhuma de que essas decisões fossem questionadas ou recorridas. Além disso, o acordo não projetava mecanismos suficientes para garantir a participação de todas as comunidades afetadas na implementação da fundação.  > > “Aproveitando a oportunidade da suspensão, os termos do acordo devem fornecer salvaguardas adequadas para garantir que existirão recursos suficientes para todos os projetos. A alocação desses recursos deve ser revisada e decidida conforme princípios democráticos e deve ser aplicada observando os princípios de direitos humanos”, enfatizaram. > > O apelo dos peritos também foi respaldado pela Relatora Especial da ONU sobre os direitos dos povos indígenas, Victoria Tauli-Corpuz, e o atual Presidente do Grupo de Trabalho da ONU sobre empresas e direitos humanos, Pavel Sulyandziga.  > > FIM  > > Léo Heller, Baskut Tuncak e Victoria Tauli-Corpuz e Pavel Sulyandziga fazem parte do que se conhece como os Procedimentos Especiais do Conselho de Direitos Humanos. Procedimentos Especiais, o maior órgão de especialistas independentes no sistema de direitos humanos das Nações Unidas, é o nome atribuído aos mecanismos de investigação e monitoramento independentes do Conselho, que trabalham sobre situações específicas de cada país ou questões temáticas em todas as partes do mundo. Os especialistas dos Procedimentos Especiais trabalham a título voluntário; eles não são funcionários da ONU e não recebem um salário pelo seu trabalho. São independentes de qualquer governo ou organização e prestam serviços em caráter individual. Saiba mais (em inglês):  > > Água e saneamento: http://www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/SRWaterIndex.aspx    > Resíduos perigosos: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx  > Povos indígenas: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx  > Empresas e direitos humanos: www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx      > > ONU Direitos Humanos, página de país – Brasil: http://www.ohchr.org/EN/Countries/LACRegion/Pages/BRIndex.aspx  > > Para mais informações ou pedidos de imprensa, entre em contato com Melinda Ching Simon (+41 22 917 9113 / mchingsimon@ohchr.org) ou Patricia Varela (+41 22 928 9234 / pvarela@ohchr.org) ou escreva para srtoxicwaste@ohchr.org  >    > Para consultas de mídia relacionadas com outros especialistas independendentes da ONU: > Xabier Celaya, ONU Direitos Humanos – Unidade de Mídia (+ 41 22 917 9383 / xcelaya@ohchr.org)   > > Para usar nos seus sites de notícias e redes sociais: conteúdo multimídia e mensagens-chave sobre os nossos comunicados de imprensa estão disponíveis nas plataformas de redes sociais da ONU Direitos Humanos, listados abaixo. Por favor, use os marcadores adequados.  > Twitter: @UNHumanRights > Facebook: unitednationshumanrights > Instagram: unitednationshumanrights  > Google+: unitednationshumanrights > Youtube: unohchr

The following statement summarizing their visit and investigation of the Samarco failure immediately after it occurred  puts the above concern in context  We had added emphasis to what those statements which  align most closely with our own analysis of how public liability and non remediable loss form and evolve.

With regard to awareness about business and human rights issues, our general impression is that mainstream business enterprises, both private and State-owned, and business associations remain largely unaware of the United Nations Guiding Principles. Companies report that they have received little guidance from the Government about the actions they are expected to take in line with the Guiding Principles.

Certain CEOs may know about the requirements placed on business by the Guiding Principles but this is often not translated into middle management activities. Our expectation is that the human rights dimension should be integrated not only at the policy level but also at the sites/operations level, including in a company’s value chains.

In relation to the companies that are aware of the Guiding Principles, the Working Group observed that they primarily understand human rights risks as being about risks to the company, rather than the risks faced by vulnerable rights holders. If companies focus on the question of human rights risks to a specific project, rather than using a holistic approach, then there is a risk that human rights concerns will be traded off and side-lined, to the detriment of affected communities.

Brazil has a number of State Owned Enterprises (SOEs) that have a particular responsibility to protect against adverse human rights impacts. Also, the State’s own human rights obligations come into play when SOEs take decisions that impact human rights. Earlier this year, the Government organised an event in which Brazilian SOEs committed to uphold the OECD Guidelines for Multinational Enterprises which explicitly promote the Guiding Principles. Furthermore, CNI (the National Confederation of Industry in Brazil) is a signatory to the Bahrain Declaration made during the 2015 first Annual Global Employers’ Summit in Bahrain which calls for the implementation of the Guiding Principles. We are not yet seeing the above commitments being reflected sufficiently in the day to day practice of SOEs, or companies in which the State holds a significant share-holding, or other economic entities under the control of the State, such as development banks, and in the business relationships that flow from these entities.

There appears to be little instruction coming from the Government, both at the Federal and State level, in relation to the human rights impact of companies and SOEs in particular. It seems that the Government grants a licence for a large infrastructure project and then provides little oversight or regulation of the project. The lack of State presence is problematic. While companies can be privatised, States cannot outsource their duty to protect human rights. States never lose the obligations they hold and human rights impacts must be properly overseen by the State on an on-going basis. The State can have a small presence in the operation of economic activities but it has to have a strong presence in overseeing and enforcing human rights.

childs drawing before and after failure



Posted in Mine Disaster Recovery, Samarco $44 billion lawsuit by Brazil, samarco disaser recovery, Samarco Environmental Crimes Investigation, Uncategorized, United Nations Human Rights | Leave a comment

Vale Engineer Added To Indictments In Fundao Dam Failure

Brazil’s Folha reported yesterday that the indictment list has  been expanded to include a principal Vale engineer who doctored records about the extent of Vale’s co-use of the Fundao.

 According to Deputy Roger Lima de Moura, responsible for verification, Vale contributed to the breakup because its depositions constituted 27% of the total as of the time of failure ..   Vale had earlier admitted to its unauthorized use of the Fundao for its own tailings from its own immediately adjacent mine  but had provided falsified records to authorities claiming its use was no more than 5%..

The indictment of the Vale engineer also stated the composition of tailings Vale deposited in the Fundao had been falsely reported.. 
 Moura said that the main causes of the failure  were drainage problems, use of low-quality material for the construction of the dam, poor monitoring and lack of control of the amount of tailings deposited.

The investigation, according to the delegate, also concludes that the location where the dam was breached –” called retreat of the left jamb was a  modification to the original design ( not approved or initiated by the dam designer. and that from 2012 when De Avila was dismissed there was no qualified engineer in charge.

The Federal Police also pointed  out that Samarco decreased its investment in “Geotechnical work”by 29%2012-2015, while increasing investments in production, which in turn increased tailings volume generated.
Although not mentioned in this additional indictment of engineer Vale had commissioned its own assessment of the major expansion referred to in the police report and was  aware that there was insufficient capacity in the Fundao to accommodate the additional  tailings of the expansion and no room on site for an expansion and nevertheless continued its own depositions.
Posted in Fundao Talings Dam, Uncategorized, Vale Indictments, Vale SA. | Leave a comment