A reminder of the duty to report environmental incidents

Brazil’s O&G regulatory agency introduced new incident reporting requirements for the offshore sector, effective February 2023

New procedures and guidelines

Resolution ANP 882/2022 of the National Agency of Petroleum, Natural Gas and Biofuels (ANP) updated procedures and guidelines for reporting incidents and investigations by operators and companies authorised to carry out activities in the offshore industry.

ANP also published an Incident Reporting Manual (in Portuguese only) with detailed guidance to regulated agents on reporting criteria and requirements, which came into effect on 1 February 2023. A copy of this publication can be downloaded from the link above.

The obligation to notify the competent authorities about marine incidents, particularly those involving pollution, already exists in the current environmental legal framework, which provides for sanctions against masters, shipowners, and operators of vessels and platforms that do not comply with the rules.

As Brazilian legislation does not assign minimum amounts for spills of harmful or polluting substances, all such incidents must be communicated as soon as possible, as explained in this overview.

Environmental protection

The Federal Constitution of Brazil identifies the environment as a public asset to be defended and preserved for the good of present and future generations. In this way, anyone witnessing an environmental incident can report it to the nearest public agency.

The supreme law rules that individuals and legal entities involved in procedures and activities potentially harmful to the environment are exposed to criminal and administrative sanctions without prejudice to the strict liability to repair or compensate for the damage, which is not subject to time bar according to the current understanding of the Supreme Court.

Among the penalties provided for in the legislation, there are hefty fines for those who have an obligation to notify of environmental incidents regardless of the amount spilt and fail to do so.

Obligation to notify of incidents

Legal framework

Relevant environmental laws and regulations require that ports, port facilities, platforms, ships, and pilots immediately communicate, directly or through their operators or agents, casualties or incidents that may cause pollution or endanger human life, irrespective of the measures taken to control it.

Notification of environmental incidents or emergencies on board vessels must be made to the port captaincy with jurisdiction over the affected port. In the case of platforms in offshore fields, the federal O&G agency, ANP. In both cases, the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) must also be informed.

The federal environmental agency manages the National System of Environmental Emergencies (SIEMA), which enables the reporting of oil spill incidents and other environmental accidents through IBAMA’s website.

Penalties

Prompt communication of an imminent threat of environmental damage and active collaboration with the authorities constitute mitigating circumstances for penalties. If it is impossible to report the incident immediately, the date and time of the unsuccessful communication attempt must be recorded in the vessel’s logbook with witnesses.

While environmental fines vary from BRL 1,000 to BRL 50 million, ports, port facilities, shipowners, and operators of ships and platforms in Brazilian jurisdictional waters that fail to report environmental incidents to the proper authority are subject to fines ranging from BRL 7,000 to BRL 1 million, plus BRL 7,000 for each hour the incident remains unreported.

Under the so-called “Oil Law” (Law 9,966/2000), cases in which the discharge of oil and harmful or dangerous substances, ballast water, and other polluting waste is exceptionally authorised, do not release the party responsible for repairing the damage caused and for indemnifying economic activities and public and private assets for losses resulting from such discharge.

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