Op-Ed: New Oil Spills in Brazil - What Now, José?

Some 15 years ago the methanol tanker Vicuna, while anchored in the Paranaguá (PR) Bay in Brazil, was engulfed in an explosion from an undetermined source. The result the tragic death of four people, total loss of the ship and much of the 4,000 tonne methanol cargo which was either burned or evaporated. 

Without contingency and appropriate resources ashore, the resulting spill of over 13,000 Bbls mix of oils including heavy fuel oil (bunker or IFO-180), marine diesel and lubricants was free to move unhindered and impact some 170 kilometers of the Paranaguá Bay estuary shoreline. This had an environmental, economic and social impact on the people and the region.

The ship owner without liability having been established, but in the absence of a local plan, stepped in to assess, plan, manage and organize response resources (drawing in international expertise as well as from all over Brazil) and yes even to fund all of the required response and rapid payments to compensate those whose livelihood had been affected. 

 As part of the team put together and working hard with all the involved parties to clean up the estuary what we realized on this event was how unprepared the terminals and ports of Brazil were to deal with oil pollution and to protect our coasts, environment, economy and people.

Since 2004 at every opportunities my partners and I have advocated both here at home and internationally for the development of national laws and legislation as well as the adoption of the internationally conventions (laws developed based on international experience and best practice) for the prevention, preparedness, response and compensation issues: the international conventions such as OPRC 90 in force in Brazil as well as the international conventions related to liability and compensation including the CLC 92. 

Fund 92 and the Bunker Oil Convention offer us insurance against the impacts of spills. While these cannot stop spills occurring, they can bring clarity on liability and guarantee sources of funds to facilitate the prompt response and compensation for pollution damage, including expenses reasonably incurred or sacrifices reasonably made to prevent or minimize pollution damage.

The response to our advocacy from our colleges in Brazil has not always supportive as you might expect. Rather we are often met with skepticism or a joke disregard as they perceive Brazil as immune or not often affected by spills. We have been told that: 
“This kind of incident almost never happens in Brazil so why should our big oil importers or producers bother to pay for an international insurance?” 
“God is Brazilian: the marine currents take any pollution out of the country.” 
“We are better at prevention and oil spills don’t occur so often now.” 
“If it happens the country or oil companies will be forced to pay.”

 In 2010, due to the incident in the Gulf of Mexico even the Brazilian President at the time said that our “country has technology and will not allow a spill like the one recorded in the Gulf of Mexico,” accusing the U.S. of being negligent for not being able to stop the spill for more than two months (source: Época Negocios online, 15/07/2010). 

Odd then that in the years since then, oil exploration companies have seen it necessary to fund the storage of a capping stack (a specialist system of valves used to stem the flow of the Deepwater Horizon oil well) here in Brazil to respond to just such a scenario as well establishing similar specialist equipment stockpiles in U.S., Norway, Singapore and South Africa. 

We haven't yet found enough movement through maritime law associations in efforts to advocate and convince the government about the risks of oil spills and the importance of ratifying the International Conventions. In 2018, myy partners Leven Siano, Marcos Martins and I in 2018 took on the task to prepare a full text of a draft requirement and offered it freely through the International Relations Ministry to the government of Brazil.

Letter from the Minister of Brazil

They sincerely thanked us for our work and committed to process the documentation internally. Starting with a full draft text for this internal process, we hoped could be completed in a much shorter time than if the government had had to start with a blank document. 

The OPRC90 and the IOPC Fund

In fact Brazil is part of the OPRC90 Convention since 1998 through the Decree nº 43, from May 29, 1998 having committed himself to establish emergency national and regional systems for preparedness and response. Note in this regard Article 6 of the Convention:

ARTICLE 6

National and regional systems for preparedness and response

(1) Each Party shall establish a national system for responding promptly and effectively to oil pollution incidents. This system shall include as a minimum;
(a) the designation of:
(i) the competent national authority or authorities with responsibility for oil pollution preparedness and response;
Cii) the national operational contact point or points, which shall be responsible for the receipt and transmission of oil pollution reports as referred to in article 4; and
(iii) an authority which is entitled to act on behalf of the State to request assistance or to decide to render the assistance requested ;
(b) a national contingency plan for preparedness and response which includes the organizational relationship of the various bodies involved, whether public or private, taking into account guidelines developed by the Organization.

In addition, the same law concludes in its Article 8 that the national plan would consolidate the regional contingency plans and emergency plans from the terminals:

Art. 8 The emergency plans mentioned in the previous article will be consolidated by the competent environmental agency, in the form of local or regional contingency plans, in articulation with the civil defense agencies.

Single paragraph. The federal environmental agency, in accordance with the provisions of OPRC / 90, will consolidate local and regional contingency plans in the form of the National Contingency Plan, in articulation with the civil defense agencies.

In other words: Terminals make emergency plans for their area, ports regional plans consolidating the emergency plans and the national plan consolidating the regionals.

Therefore, the efficient fight against any pollution is a legal duty in one region of the port and terminal, as ship accidents are predictable and ports and terminals must have prior plans with incidental scenarios, which must be effective when any spill occurs, precisely with the dual purpose of protecting the environment and minimizing the costs of the shipping industry.

Despite the above, what we see in practice is the lack of preparedness and contingency with regard to oil pollution at local and regional levels.

August 30, 2019

So on August 30, 15 years after the exposure in Vicuña we and the rest of Brazil began to see reports of oil impacts along the coast of North East Brazil, hoping and wishing for a better response. But while once-ashore efforts were initiated to remove the oil, that which was at sea was left uncontested to impact again cleaned beaches or to be distributed by wind and waves to impact other areas to the north and south.  

The first evidence of impact from August 30th at Paraíba are on the beaches Tambaba and Gramame, at Município de Conde and at Praia Bela in Pitimbu. By October 9, 139 places are reported to have been affected in nine states: Alagoas, Bahia, Ceará, Maranhão, Paraíba, Pernambuco, Piauí, Rio Grande do Norte e Sergipe and about 130 tons of oil has been recovered from the environment.

The Federal Environmental Authority in Brazil (IBAMA) said in a statement that the conclusive result of samples, previously requested by the Port Captain, and analyzed by the Navy and Petrobras, pointed out that the substance found in the coastlines is crude oil. In an analysis made by Petrobras, the company reported that the oil found is not produced in Brazil, excluding their possible involvement in the case.

The investigation of the origin/cause of the oil spill is being conducted by the Navy, while the criminal investigation is the subject of the Federal Police.

What we see here is the importance of a central coordination body to avoid bodies with potential overlaps, gaps and conflicts of interest involved in the incident but without overall responsibility to identify the source, stop the release and remove the contamination which has already reached the waters and shores of Brazil.

The Decree 8127/13 that regulates the National Contingency Plan (PNC) provides this central coordination body trough the designation of the Operational Coordinator who in the event of an oil pollution incident response of unknown origin or insufficient regional plans will have the duty to facilitate, adapt and expand the capacity of the response actions:

Art. 18. If the PNC is activated and if there is evidence that the procedures adopted by the polluter are not adequate or that the equipment and materials are not sufficient, and if the procedures and structure provided for in the Area Plans were not adequate to in the event of an oil pollution incident response of unknown origin, the PNC management bodies will be immediately mobilized by the Monitoring and Evaluation Group, as requested by the Operational Coordinator, to facilitate, adapt and expand the capacity of the response actions taken.
Single paragraph. Response actions are the responsibility of the polluter.

The international conventions impose liability on ship owners, but rather than accept the delay that proving fault and liability imposes, they have recognized the compromise but value of strict but limited liability. The owner is responsible from the time the incident occurs regardless of its fault. In exchange for strict liability the maximum compensation sum is fixed at an internationally determined levels dependent on the ship size and encompassing experience in what response and recovery from incidents is likely to cost. 

There are, in addition, for tanker incidents under the IOPC Funds regime a further pot of compensation available funded by receivers of oil around the world in addition to that available from the ship owner. The regime provides a guarantee against the shipowner not having sufficient funds through compulsory insurance.  

Unfortunately, now it may be too late and the “it won’t happen here” or “we can sort it out later” comments that I have listened to for the last 22 years of my legal career. While I was busy advocating for the ratification of the international conventions that are in fact are an environmental insurance policy, the response has been big and long silence and a sense of “what now, José?” from what I, regretfully, can only say: “I told you so.”

And what now, José?

If oil clean up is the goal, the name that comes to my mind is Matthew Sommerville. He has over 34 years multi-faceted experience in the spill response industry and in the planning for, prevention, response to and compensation from oil and chemical spills. He provides advice to governments, oil majors, ports, NGO’s and to legal firms, dealing with marine pollution issues and in explaining the technical issues both to us and the courts. 

Sommerville has been involved in the practical issues of response including to incidents like here in Brazil but has also served as the Head of the Claims Department and technical Advisor of the International Oil Pollution Compensation Funds and thus understands incidents from inception to final legal settlement and the value of plans, co-ordinated response and working within clearly defines and transparent legal regimes.

I invited him to co-write this article with me giving to Brazil a small piece of his technical opinion about what could have been done in this case and what we should do in the future. After analyzing some pictures and videos that were released about the facts and of course reserving his rights to find out new conclusions if confronted by further evidence that he did not have access to, he commented:

“If you watch the video you will see that the oil is wet on the top and is not sticking to the rocks but lying on like a blanket. This tells me a couple of things: its likely fuel oil not crude and it may be partially submerged when at sea which would make it more difficult to detect with radar, IR or UV instruments on a plane or ship.

“It would also make me thing that oil will not be coming to surface directly above the source but may be coming up gradually and surfacing some distance from the wreck which would mean searching a bigger area and being more careful in trying to see any targets.

“On the response side if the oil stays where it is for any time the water will be lost and it will become very tacky which will make it more difficult to remove and to pump. To pump it successfully they will need to take a lot of water with the oil to stop it becoming clogged in the hoses. Finally once recovered the oil will need to be separated from the oil so quantities recovered will me high but volume of oil low.

“It landing on a sand beach it will sit on top and could be removed with limited sand if done quickly. However if left to stand for any time oil will absorb heat loses water and become less viscous penetrating in the beach and adhering to more sand as it goes. the result more sand recovered with the oil.”

Our opinion after all this is very simple: BRAZIL NEEDS TO RATIFY IOPC FUND CONVENTION, PUT OUR CONTINGENCY PLANS IN PLACE AND HAVE ALL RESOURCES AND TRAINED PEOPLE RESPONDING THIS OIL SPILL AS A MATTER OF EMERGENCY.

My dear friends, it is more than time to take this incident seriously, and we need to unite all society to avoid more oil reaching our beaches and clean up the ones that have already be impacted.

And from “us” I really mean ALL OF US, the same way that we are organizing beach clean ups to take plastic off the beaches, we need to cooperate with the authorities especially the Navy who with the usual expertise and dedication to protect our coasts and people is tirelessly trying to find a solution to this event because if we only focus on finding the “bad guy who did it” hundreds of tons of oil may stay in the environment for years to come.

My partners and I are ready to do our part (like always) cooperating with our authorities to help our country pass through this challenge, and hopefully in a near future our society will make the right decision to ratify the international conventions and be part of the IOPC Fund to have the chance to access its resources as insurance against the impact of spills.

Fabiana Martins is a Partner at Siano & Martins and Joint President of Wista Brasil.