STUDY ON THE LIABILITY OF OWNER COMPANIES OF DAMS

AND THE NATIONAL DAM SAFETY POLICY IN BRAZIL

Rodrigo de Sá Cestari*, Marielly G. Anacleto1, Amanda de M. Ricardi2

* Lawyer by Pontíficia Universidade Católica do Paraná – Londrina Campus

Celso Garcia Cid Highway | PR 445 Km 380 | University Campus – Londrina - PR
e-mail: rodrigo@geometrisa.com, webpage: www.geometrisa.com.br

Keywords: Dam, National Policy on the Safety of Dams, Responsibility of Dams

Entrepreneurs

Abstract. Safety of Dams is a subject that has been discussed for decades by Dam
Entrepreneurs and Public Bodies. In Brazil, it was treated the first time in 1963, in a
Brazilian Seminar of Great Dams in the city of São Paulo. From then until the present
date, the minimum security parameters, obligations and responsibilities of the owne r and
the role of the State have been discussed. The present work aims to carry out a
bibliographic review of the legal aspects of Law No. 12,344/2010 and its resolutions
considering the different inspection bodies that granted the projects for their respe ctive
uses (CNRH - National Council of Water Resources, ANA -National Water Resources
Agency, ANEEL - National Electric Energy Agency and DNPM - National Department of
Mineral Production, recently modified for ANM - National Mining Agency). The
responsibility of dam entrepreneurs in Brazil, their obligations to the Law and the
National Policy on Dam Safety will be studied, as well as the possible sanctions in case of
disobedience of the law. Finally, we will analyze the bills that are being processed in the
National Congress to amend Law No. 12,334/2010 to strengthen the effectiveness of the
National Policy on Dam Safety and assign new instruments and conduits to be adopted by
the National Council of Hydric Resources.

1 INTRODUCTION
Since 1963, the subject “Dam Safety” has been discussed in International Commission
on Large Dams (ICOLD)1congress. In this context, with procedures and coordinated
actions by dams’ entrepreneurs, was possible to build a culture of Dam Safety,
independent of the existing specific legislation.
The rupture of a big Dam in Cataguases, at Minas Gerais state (Brazil) in the year of
20032, as other serious accidents in past years, led the Federal Government to start studies
to elaborate the Bill (PL) No. 1,181/2003. This bill, was intended to establish the National
Policy on Safety Dams (PNSB) and created the National Information System of Dam
Safety (SNISB). Throughout the project process in the Chamber of Deputies, other
accidents occurred.

1
Civil Engineer by Universidade Tecnológica Federal do Paraná (UTFPR) – Curitiba Campus
2
Civil Engineer by Universidade Estadual Paulista “Júlio de Mesquita Filho” (UNESP) –Ilha Solteira
Campus

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

In September of 2007, the Bill (PL) No. 1,181/2003 was submitted to a vote, and its
replacement was processed - the PL 168/2009 - which finally, on September 20, 2010,
was sanctioned by the President of the Republic. Thus, Law No. 12,334 / 2010
establishing the National Policy on Dams Security, in addition to creating the SNISB,
something of great importance for Brazilian society.

2 THE LAW No 12.334/2010

Law No. 12,334 / 2010 3 contains six chapters composed of 23 articles, which seek to
clarify the types of dams that fall under the Law (Art. 1), to describe some important
technical definitions in the context of the Law (Art. 2), as well as the objectives,
foundations and instruments of the National Policy for the Safety of Dams 4 (Art. 3, Art. 4
and Art. 6) and report on the bodies responsible for monitoring the safety of dams
(Article 5).
Dams checked by law must be classified according to some questions: Category of
risk, Associated Potential Damage (DPA) and Storage Volume.
According to the law, this classification must be done by enforcement agents based on
general criteria established by National Water Resources Council – CNRH (Art. 7). The
audit agency duties and entrepreneur’s obligations are described on Arts. 16 and 17.
In addition to these points, in its chapter IV and section II, the Law discusses about the
Dams Safety Plan, its components (inspections, periodic reviews and Emergency Action
Plan) and obligations (Art. 8 to 12).
The law also establishes the creation of the SNISB (Arts 13 and 14) and its basic
operating principles and defines the contextualization of the National Dams Security
Policy in order to raise awareness of the importance of dam safety.
The other articles deal with the "Final and Transitional Provisions", highlighting the
determinations of Article 19 that discuss the term given to the entrepreneurs to submit to
the regulatory agencies their actions and the schedule for the implementation of the Dams
Safety Plan (PSB).

3 STATE WATER OFFICES RESPONSIBILITIES

In Brazil, the National Water Resources Management System (SINGREH) is
composed of agencies that establish and execute the National Water Policy, among which
there are specific structures to manage state water resources (State Entities). The
management, through these institutions, consists in the issuance of the authorization
regarding the use of water, as well as in the control of the use of water resources 5.
These State Entities are structured by autonomous organizations, such as water
agencies, of which most are directly administered by the States. Its main legal activities
are: updating the registration of water users, developing technical studies and designing
proposals for Water Resources Plans 5.

4 REGULATION IN THE DAM SECTOR

4.1 National Water Resources Council (CNRH)

Law No. 12,334/2010, in this Art. 7, conferred to National Water Resources Council
the duties of establish the main criteria of dams’ classification, which were defined
through the edition of Resolution No. 143, dated July 10, 2012. In the same day, the
CNRH edited the resolution No. 144, establishing guidelines for the implementation of
PNSB, its application and actuation in the SNISB.

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

Recently, the Resolution No. 178, dated June 29, 2016 was edited and modified the
Resolution No. 144.
Dams’ classification in Risk Category could be: high, moderate or low. This
classification considers:
• Technical characteristics (CT);
• Conservation status (EC);
• Dam Safety Plan (PSB).
The classification according to the Associated Potential Damage (DPA) could be high,
moderate or low and considers the magnitude of human life loss, economic impacts and
environmental impacts.
These two classifications generate two punctuation matrix with the sum of its items:
(CT + EC + PSB) and DPA. According to the results of the sums, Dams could be
classified on: A, B, C or D.

4.2 Resolutions in force in Brazil

After Law No. 12,334/2010 promulgation, its complementary implementation
instructions would be necessary. According to the Dam function, there will be a specified
audit agency responsible for the law complementary implementation instructions.
The National Water Agency (ANA), took the assignment of organizing, deploying and
managing the SNISB.
In addition to being in charge of the inspection of the dams which are in its
responsible, ANA started to supervise and promote the articulation between the dam audit
agencies and the elaboration of Dam Safety Report (sent annually to the CNRH and later
to the National Congress).
ANA published in Union Official Diary dated February 07, 2017, the Resolution Ana
No. 236/20176, regulating all the legal devices imputed to the audit agencies (Art. 8, 9,
10, 11, 12 of Law No. 12,334/2010).
The Law No. 12,344/2010, in force in Brazil, covers resolutions by category of dam, to
mention: a) water accumulation dams; b) dams in the electricity sector; c) mining dams
and d) industrial waste accumulation dams.

4.2.1 Water accumulation dams

ANA edited the Resolution No. 236, dated January 30, 2017, determining its
responsibility to supervise water accumulation dams. This resolution establishes for dams
afforded by ANA the drafting of PSB, with implementation period, actualization period,
the qualification of the technical officers, the minimum content and the level of detail.
The PSB must also contain the Regular and Special Safety Inspections dates, the
Periodic Review of Dam Safety date and the Emergency Action Plan (PAE) for Dams
with High DPA and High Risk.

4.2.2 Dams in the electricity sector

National Electric Energy Agency (ANEEL) edit the Resolution No. 696 7, dated
December 15, 2015, assign accountability for dams in the electricity sector.
This resolution establishes, for dams regulated by ANEEL, the classification criteria
and obligation of PSB and Periodic Review of Dam Safety drafting.

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

4.2.3 Mining dams

As of Ordinance No. 70,389 8, dated May 17, 2017, the National Department of
Mineral Production (DNPM), currently National Mining Agency (ANM), is responsible
for inspecting mining dams. The ordinance creates the National Register of Mining Dams,
the Integrated Management System for Safety of Mining Dams. It establishes the
periodicity of execution or updating, the qualification of the technical officers, the
minimum content and the level of detail of the PSB, the Regular and Special Safety
Inspections, the Periodic Safety Review of the Dam and the Emergency Action Plan
(PAE) for Mining Dams.

4.2.4 Industrial waste accumulation dams

Tailings and industrial waste dams have the purpose of blocking the flow of waste
produced in industries to the downstream part of the dam. According to the Art. 5th of the
law No. 12,334/2010 the inspection authority of the structure in question is the entity that
provided the environmental license of installation and operation for the purpose of
disposal of industrial waste (IBAMA and OEMAs – States Environmental Offices). Each
State has his own entity responsible of the industrial waste dams. Federal Law No.
12,344/2010 also established that it is the duty of the supervisory entity to define the
periodicity of updating, the technical qualification, the minimum content and the level of
detail of the Dam Safety Plan, the Periodic Safety Review of the Dam and the Inspections
of Regular and Special Security.

4.3 Bills changing Law No. 12,334/2010

Dams, during their lifetime, are not free of faults, accidents or even ruptures. In order
for a safe business, risks must be kept under control or in appropriate levels. In this
context, the concept of active safety emerges, with mitigating action that precede this
risks, reducing the occurrence of safety flaws and other problems. As example, the
Emergency Action Plan (PAE) could be cited.
Some occurrences involving dams’ incidents have shown that Law requires some
improvements, in order to promote greater confidence for downstream populations and
ensure greater integrity for potentially impacted environments.
As an example, the rupture of Fundão Dam, in Mariana – MG, leaves a socio-
environmental liability of serious proportions and irrecoverable losses. Certainly, the
losses could have a significantly less harmful effect if there were an appropriate plan with
for the arrangements to be made in case of emergency.
In order to improve current legislation, especially with regard to the PAE, there are
some proposals to amend the Law No. 12,334 / 2010: PL No. 3,561 / 2015; PL No. 3,563
/ 2015; PL No. 3,775 / 2015; PL No. 4,214 / 2015; PL No. 4,287 / 2016 and PL No.
224/2016.
The obligation of insurance of dams or financial guarantee by the entrepreneurs to
cover damages in cases of accidents are some common points between these projects.
There is also the expansion of affected population participation and improvement of the
technical specifications to improve the engineering projects.

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

5 DAMS ENTREPRENEURS RESPONSIBILITIES

5.1 Civil responsibility

Civil liability is characterized by the compensation of the damage that one person
causes to the other as a result of his conduct, being present when verified the conduct,
damage and the causal link between the conduct and the damage 9.
Maria Helena Diniz argues that: "Civil liability appears as a sanction, being a legal
consequence that non-compliance with a duty produces in relation to the obligation. Civil
liability is a civil penalty, as a result of infringement of a rule of private law, the purpose
of which is private interest and, in its nature, is compensatory because it covers
compensation or compensation for damages caused by an unlawful, contractual or extra
contractual act”10.
Concerning the civil liability analysis, in the scope of the dam undertakings, this can
be verified when the plan omission.
According to the Art 186 of Civil Code and Art. 927 of the same code and
complementary to each other, “whoever, by voluntary act or omission, negligence or
recklessness, violates law and causes harm to another, albeit exclusively moral, commits
an unlawful act” and “whoever, by an unlawful act (articles 186 and 187), causes harm to
another, is obliged to repair it "(CC, Art. 927). In this case, after presenting the legitimacy
of the person responsible for implementing the preventive measures, it is clear the duty to
indemnify the damages caused in a possible dam rupture.
For some, the omissions of preventive measures must be present to exist the duty to
compensate, as is the case of Pablo Stolze and Pamplona Filho (2003) 11. According to
them, such a kind of responsibility (deceit or guilt in the conduct of the agent causing the
damage) is irrelevant in law, since it is only necessary to have a causal link between the
damage and the conduct of the responsible agent in order to arise to indemnify.
Thus, regardless of the differences in the duty to indemnify, civil liability is based on
the Neminem Laedere Principle: "No one is allowed to cause injury to another."
The elements for which there is objective civil liability are:
 Human conduct;
 Causal link;
 Damage / loss.
Human conduct in the case of the civil liability of the entrepreneur stems from the risk
of his activity (Article 927, sole paragraph, CC) being that objective, that is, regardless of
his intention to cause the injury, he will be liable for the loss.
Law No. 12,334 / 2010 does not have the role of penalties imposed on those who do
not comply with the PSB, but PL No. 224/2016 aims to implement in section VI of
Article 4 of Law 12,334 / 2010 the objective liability of the entrepreneur for damages
caused by the dam not applied to the Dam Safety Plan.
In dam accidents, there are not only civil damages, but also environmental damages,
which generates the civil liability for environmental damages. For Federal Supreme
Court’s (STF) decision there’s no need to indicate guilt or not. From this arises a new
concept of causal nexus: the obligation to indemnify not only when present the conduct of
the agent directly related to the damage (in a classic relation of cause and effect), but also
when the damage is caused by the risk factors of the activity. In this way, the dam
entrepreneur is responsible for damage caused by the dam incident.
In this new model of civil responsibility for environmental damage, the person who
suffers damages due to dam accidents has its rights of indemnity guaranteed. As most of
the affected population is riverside and situated downstream of the dam there are damages

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

not only material and moral, but also damage to source of resources for survivability.
Therefore, the indemnity value became more important.
Civil Code Art. 944 says that “The indemnity is measured by the magnitude of the
damage”. One can interpret the article citing examples of people affected by the Mariana /
MG dam accident. In this example, the compensation for moral damages to repair the
annoyance of the affected individual should be commensurate with this damage. For
material damages, compensation would take into account the patrimonial value lost by the
individual, plus a value for those who survived by fishing and tourism on the banks of the
river downstream of the dam.
However, in Brazil civil liability is only indemnifying and reparatory, and the
indemnity cannot cause enrichment in the indemnified individual nor be punitive in
relation to the value that the company or entrepreneur must pay, since it is also of utmost
importance the continuity of the company, thinking about the generation of employment
and economic development in the region where the dam is installed.

5.2 Administrative responsibility

When it comes to the administrative scope, the State is responsible for monitoring not
only dam related works, but also for checking if maintenance and repairs are being
carried out periodically, as well as verifying if the Dams Safety Law is being applied.
Most dams belonging to public enterprises are inspected by public agents themselves,
but this has not happened frequently. Failure to perform inspections and lack of
maintenance due to a shortage of adequate personnel is frequent. Thus, it is necessary to
change the role of inspector and maintenance inspector state to private comp anies,
leaving the State only the duty of policing, in other words, the State only have to check
that dams are adequate and present no risks of accident.
It should be noted that in relation to the responsibility of the state entity, the
jurisprudence of the Federal Supreme Court diverges about its objectification:
"REGIMENTAL AGREEMENT AT THE EXTRAORDINARY
APPEAL. OBJECTIVE CIVIL RESPONSIBILITY. STATE
OMMISSION. DAMPING BREAK. REVIEW OF FACTS AND
EVIDENCE. SUMMARY N. 279 OF THE SUPREME FEDERAL
COURT. REGIONAL AGREEMENT TO WHICH PROVISION IS
NEEDED "(RE 691.678-AgR / PB, Rel.Min. Carmen Lúcia, First
Class).Regime appeal on extraordinary appeal. 2. Objective
responsibility provided in art. 37, § 6, of the Federal Constitution
also covers missing acts of the Public Power. Precedents. 3.
Impossibility of review of the factual-evidentiary set. Statement
279 of the Summary of the STF. 4. Absence of sufficient evidence
to invalidate the contested decision. 5. Regime of aggravated
refusal "(RE 677.283-AgR / PB, Rel. Min. Gilmar Mendes, Second
Class)."

"CIVIL APPEAL. ACTION OF INDEMNIFICATION FOR

MORAL DAMAGE AND MATERIALS BREAKING OF
CAMARÁ DAM. FLOODING OF RESIDENCE AND
DESTRUCTION OF GOODS. PARTIAL PROCEDURE
IRRESIGNATION PRESCRIPTION INOCORRENCE.
SUBJECTIVE CIVIL RESPONSIBILITY OVERSIGHT OF THE
WORK. DUTY OF THE STATE PROHIBITED DAMAGES.
QUANTUM INDENIZATION VALUE FIXED IN

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

ACCORDANCE WITH THE PRINCIPLES OF

REASONABILITY AND PROPORTIONALITY. ADVOCATING
HONORARY ACCOUNTS RECIPROCAL ADJUSTMENT
INTERESTS OF “MORA LEI” Nº 11,960 / 2009 PARTIAL
PROVISION. - The responsibility of the Public Administration for
omission is subjective, depending on its configuration, the actual
occurrence of damage, an illegal state decision, and the causal
relationship between the damage and the culpable conduct of the
public entity in failing to provide or public service. (...) '(pp. 153-
154).
In this RE, based on art. 102, III, a, of the Constitution, it was
alleged, in short, an offense against art. 37, paragraph 6, of the
same Charter. The appeal is not up for gratitude. The judgment
under appeal thus settled the question: 'With regard to the
responsibility of the State, in the case In examen, it is found to be
the same subjective, backed by the obligation of the State to
prevent the damaging event, sinceit would be responsibility of the
public entity to supervise the work in order to maintain the Camará
dam in a regular condition, without presenting risks to the
population. (...)
Therefore, the civil responsibility of the State is characterized
when it must supervise the work, in order to be carried out
according to the technical criteria, and doesn’t guarantee its correct
and safe execution.
RE 670.275-AgR / PB, Rel. Min. Marco Aurélio; RE 677283-
AgR / PB, Rel. Min. Gilmar Mendes; RE 698.254 / PB, Rel. Min.
Cármen Lúcia; RE 695.887 / PB, Rel. Min. Luiz Fux.
"Environmental responsibility

5.3 Environmental responsibility

In the issues surrounding environmental impact, José Rubens Morato Leite and Patrick
de Araújo Ayala (2012)12 in their book mention the Forest Code (Law No. 12,651 / 2012)
and Provisional Measure 571/2012 and report the environmental impacts:
 The law addresses the need for the rule of law to be anchored in a charter of
principles that brings greater environmental justice;
 It seeks to classify environmental damage in relation to the Brazilian and
international legal system and analyzes its harmfulness by specifically entering
into civil liability for damages caused to the environment.
With regard to environmental damage, the causal link between the conduct of the
entrepreneur and the possible liability should be analyzed under the integral risk bias,
thus, even if the damage does not have direct consequences of the action, civil liability
will result from the damage environmental.
This responsibility is called propter rem (because of the thing). It says that obligation
continues, with the new enterprise owner, as well as the former, joint and several
liabilities.

5.3.1 Precautionary principle and preventive action

Where there is a risk of serious or irreversible damage, the absence of scientific

certainty should not be used as a reason to postpone the adoption of effective measures to

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

prevent environmental degradation. Thus, this principle determines that action to

eliminate potential harmful impacts on the environment is taken before a causal link has
been established with absolute scientific evidence.
In view of this, Article 54 § 3 of Law No. 9,605/98 penalizes criminals who fail to
adopt precautionary measures, required by the Government.

5.3.2 Principle of cooperation

Cooperation requires the exercise of participatory citizenship to avoid and combat the
devastating effects of environmental degradation. Cooperation presupposes aid,
agreement, exchange of information as the macro objective of every collectivity.

5.3.3 Principle of accountability

There is no Democratic State of Law if it is not offered the possibility of applying any
kind of sanction to that which threatens or harms the environment.
The principles described above provide important inputs to the building of a more
environmentally sound state.

5.4 Criminal responsibility

Draft Law No. 224/2016 states that the person responsible for the dam (director,
administrator, member of the board and technical body, auditor, manager, agent or agent
of the entrepreneur) has his conduct classified as criminal conduct with penalties varying
from 1 to 5 years’ imprisonment, in addition to a fine, when it is found that it is acting
with omission in relation to the safety of a certain dam.
The need for criminal penalties is perceived, since, in the absence of monetary
coercive imposition, there is insufficient capacity for dam entrepreneurs to comply with
all the requirements of the Dams Security Law, because in a possible criminal
responsibility they expect to claim eventual deceit.
Criminal accountability, unlike previous ones, is not observed under the scope of
objectification, considering the need to analyze the deceitful or guilty conduct of the
agent, since this concerns the fundamental right of freedom.

6 CONCLUSION
It’s known that dam is a delicate structure that depends on State attention and its
operators. Its non-observance and maintenance should be highly punished directly to the
owner, with extremely high fines and detention, in order to force their maintenance and
prevent accidents.
It must be observed that even though it is up-to-date with maintenance and with items
imposed by Law No. 12,334 / 2010, the entrepreneur would respond objectively in case of
an accident, since the fact of owning the dam compares to human conduct and there’s no
need for proof of guilt or fraud.
The Dams Safety Act is relatively new and enforcement agencies are still adjusting to
oversee their implementations. According to the RSB 2016, there are currently 22,920 dams
in cadaster (RSB 2015 reported 17,259 dams). The state of Roraima stands out because, for
the first time, presented its cadaster, containing 15 dams. However, in total, 18,761 dams
have not been classified for potential damage yet, and 19,229 dams have not been assessed
for the risk category. In addition, only 12,590 (or 55%) have some type of purchase
authorization (grant, concession, authorization, license, among others), being regularized. For

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

this reason, the number of dams that needs classification, identification of the entrepreneurs
and regularization is enormous, so they can stand by the Law.
In this scenario of innovations, the intensification of inspection will meet the public's
desire for improvements in security and the implementation of the National Policy on
Dam Safety (PNSB).
Faced with the occurrence of dam incidents, the communities located downstream of
the enterprises desire for greater security and transparency on the part of the
entrepreneurs, resulted in improvement projects and ensure the effectiveness of the law
and the resolutions that contemplate the PNSB.
Lastly, given the economic, social and environmental importance that a dam has in
society, considering the magnitude of its dimensions, it’s very important that
entrepreneurs comply with the law and with integrity in order to prevent risks to society
and to the environment. For this reason, we constantly seek innovations and complements
to the law in order to ensure social, economic and environmental security.

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 Rodrigo de Sá Cestari, Marielly Gonçalves Anacleto, and Amanda de M. Ricardi.

REFERENCES

[1] ICOLD, International Comission on Large Dams. Automated dam monitoring systems:
guidelines and case histories, ICOLD, Paris, France (2005).

[2] Brazil Federal Bill No. 1,181 of 3rd June (2003).

[3] Brazil Federal Law No. 12,334 of 20th September (2010).

[4] ANA, National Water Agency, Owner’s Manual on Dams Safety: Instructions for the
presentation of the Dam Safety Plan – Volume 1 (in Portuguese), ANA, Brasília, Brazil
(2016).

[5] ANA, National Water Agency, Water Agency: what it is, what it does and how it works
(in Portuguese), ANA, Brasília, Brazil (2014).

[6] ANA, National Water Agency, Resolution No. 236, January 30, 2017 (in Portuguese),
ANA, Brasília, Brazil (2017).

[7] ANEEL, National Electric Energy Agency, Resolution No. 696, December 15, 2015 (in
Portuguese), ANEEL, Brasília, Brazil (2015).

[8] DNPM, National Department of Mineral Production, Ordinance No. 70,389, May 17,
2017 (in Portuguese), DNPM, Brasília, Brazil (2017).

[9] National Civil Defense Policy (in Portuguese). Ministério da Integração Nacional,
Brasília, Brazil (2007).

[10] M.H. Diniz, Course of Brazilian Civil Law: Civil Responsibility - Volume 7, No. 21 (in
Portuguese), Saraiva, São Paulo, Brazil (2007).

[11] P.S. Gagliano and R. Pamplona Filho, New Course of Civil Law: Civil Responsibility –
Volume 3, No. 12 (in Portuguese), São Paulo, Brazil (2014).

[12] J.R.M. Leite and P.A. Ayala, Environmental Damage, No. 5 (in Portuguese), Revista dos
Tribunais, São Paulo, Brazil (2012).

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