Mining Dams Safety

An assessment based on the Public Interest Theory of Regulation

Resumen

[Purpose] The accidents involving the mining tailings dams in Mariana and Brumadinho, respectively in 2015 and 2019, were landmark events for the mining sector and the Brazilian recent history. It is therefore unsurprising that, following those events, there were significant changes in legislation and regulation applicable to mining tailings dams. This article will undertake an assessment of such regulatory changes that took place in the last five years with the purpose of assessing whether it is possible to determine that such changes represented prevailing public interests, or if such changes were limited to providing a regulatory response to social pressures arising from the accidents of Mariana and Brumadinho. The goal is to offer the reader a new approach on regulation applicable to tailings dam safety and its recent changes. The assessment to be made herein will not have a prescriptive nature, but will rather seek to identify values that represent public interests as a reason to explain the regulatory changes that took place in the past years, more likely as a reaction to essentially economic interests.

[Methodology/approach/design] The approach to be adopted will be based mostly on the public interest regulation, with the objective of determining which are the values that are set at a higher level under applicable regulation. This will be made based on the work of Mike Feintuck and, to a certain extent, Tony Prosser (which emphasizes the rights-based approach). The assessment herein will also rely incidentally on Steven Croley and his procedural-administrative method for reviewing how such values that represent public interest were dealt with in the course of the processes that led to regulatory changes.

[Findings] The review provided herein was able to evidence that, in recent developments of regulation applicable to the safety of mining tailings dams, not only economic values inherent to markets were considered, but also those values that represent the so-called public interest which have a component of social value.