One more spill, it does matter

by | Jul 8, 2016 | Articles | 0 comments

Every June 24 in the jungle of our country, the main festival is celebrated, the Feast of “San Juan”, commemorating San Juan Bautista, but this year not everything was celebration, it was reported by the media of another oil spill in our Amazon, environmental incident occurred at Km. 213 of section I of the Nor Peruvian Pipeline in the District of Barranca, Datem del Marañon Province, Loreto Region, reported that the company Petroleos del Peru S. A, stating that they had suffered a new oil spill, this being the third environmental incident, with a spill of approximately 600 barrels, having to remember that the first PETROPERU crude oil spill occurred on January 25, 2016 at Km. 441 of the Nor Peruvian Pipeline, in the Chiriaco River, Caserio de Villa Hermosa, district of Imaza, Province of Bagua, Amazonas Region, with an oil spill of approximately 2,000 barrels and the second one dated February 03, 2016 in Morona, Province of Datem del Marañon, Loreto Region, with a spill of more than 1000 barrels.

Now, this third oil spill has occurred in less than 120 days after Petróleos del Perú S.A. suspended the pumping of oil in the Nor Peruvian Pipeline. The company to date only published a press release but did not mention at all the possible causes of the spill, subsequently OEFA and OSINERGMIN have determined that the failure (fissure) occurred in a part of the pipeline located at a depth of 2.2 meters, they also estimate that 600 barrels would have spilled and probably affected an area of approximately 1.6 hectares.

From the evidence obtained to date, there is a big question and contradiction at the same time about this environmental incident: Another PETROPERU spill? It should be pointed out that the state-owned oil company has reported that it has not pumped crude oil, but admits that it only pumped for equipment testing in some stations. This is a contradictory version, as evidence has been found in the affected area of oil pumping samples and currently of residual oil (leftover from the transformation of oil into gasoline), and the authorities have categorically stated that PETROPERU had no authorization or permit to pump any type of crude oil. For this reason, the main factor, understood as the possible cause of this new spill, must be the pumping of the 2,600 barrels of residual oil that negligently did not take into account the 538 barrels of crude that remained in the pipeline of section I of the pipeline since the date of the stoppage, being the pressure of the unauthorized pumping that has caused a crack in the semi-buried pipeline, generating the contamination in this new spill. Again, we can conditionally assume that the contributing factor as a probable cause of the incident must be the non-compliance with the maintenance of the pipeline, which does not comply with its Environmental Adjustment and Management Plan, which shows that there has not been an integral maintenance of the infrastructure or that its pipeline maintenance program is not appropriate, resulting ineffective for the company’s environmental policy. In response to this incident, PETROPERU has indicated that they have controlled the spill, having immediately applied their contingency plan for their crews to place containment barriers to prevent the displacement of crude oil, for the subsequent remediation of the area, having hired an American company specialized in remediation and environmental issues.

As a consequence of this third PETROPERU spill, the authorities are analyzing the decision to extend the stoppage of the Nor Peruvian Oil Pipeline until 2017, to the detriment of our country, because the stoppage of the pipeline would freeze the oil production of the entire jungle and above all would harm the oil operators of lots 192 (Pacific), 67 (Perenco), 8 (Pluspetrol Norte) and 131 (Cepsa), which in the end would result in a minimal or almost null royalty that would not generate income for the Loreto Region.
As we have already stated on other occasions, as a result of this type of environmental incidents, the competent prosecutorial authority, in this case the Specialized Prosecutor’s Office for Environmental Matters of Maynas, has initiated ex officio preliminary investigations for a corresponding period of time for the alleged commission of the crime of environmental pollution typified in Article 304 of the Penal Code against the legal representative of Petróleos del Perú. 304 of the Penal Code against the legal representative of the company Petróleos del Perú, having carried out the fiscal verification in the place of the facts, verifying the respective samples taken by the environmental authorities and subscribing the corresponding Fiscal Act, awaiting the Technical Report based on art. 149.1 of the Environmental Law and summoning the legal representative of the company for the statements and other relevant procedures to clarify the facts under investigation to finally pronounce the formalization and continue the preparatory investigation, otherwise it will pronounce not to continue the preparatory investigation and the respective file.

As a result of this spill, the Chairman of the Board of Directors of Petróleos del Perú has resigned, whether this is due to a media factor, to improve the institutional image of the company, or as a strategy of a possible conditional responsibility. In this regard, we must ask ourselves, what does one more oil spill matter?, or we must assert that if indeed one more oil spill matters to us, since as Peruvians we want to preserve our Amazon, the lungs of humanity, we must make a small analysis on the possible criminal liability that would involve the management bodies of the company, such as the criminal liability of the legal representative of the company, who is the representative liable for liability, including criminal liability. The President of the Board of Directors has the function of representing the company and, within the corporate policies there is also the responsibility, being evident that the environmental policies of the company must verify that there is a suitable pipeline maintenance program, and if its contingency plan works in an effective way not as simple makeup that has everything required by law but in practice does not work properly, that has an organizational commitment not only leave based on the subordinates but each case must be analyzed in particular.

This case allows us to make an analysis of the criminal liability of the representative of the company but based on a strict liability, which in case of environmental crimes is a criminal liability that generally falls on the General Manager of the Company, for being the legal representative of the legal person, in accordance with the provisions of art. 188, 190 clause 9 and 191 of the General Law of Corporations or also fall on the Directors of the company, in accordance with art. 171 and 177 of the aforementioned law, it must be emphasized that the criminal liability is not subjective, that by the fact of having a position in the company the criminal liability for any fact that occurs in the company must be transferred obligatorily, this has been occurring based on art. 27 of the Criminal Code that establishes the theory of acting for another, in order to hold the General Manager of the legal person criminally liable, that is to say, the representative is liable for all the illicit committed by the legal person, it is evident that there must be a functional relationship between the position and the fraudulent action, which establishes its manual of functions and in the case of the Directors, the Theory of the improper omission (German doctrine) or the commission by omission (French doctrine) must be taken into account, when the punitive norm is violated and it does not do what it should do, producing a result that it should not have produced, as in the case of spills, criminal liability for the breach of the duties of supervision but it is necessary to take into account the creation of legal duties, the criminal liability for commission by omission is established in art. 13 of the Criminal Code, being evident to analyze the omission, the position of guarantor (legal duty) adding that the result is contrary to the criminal norm, specifically the Principle of decentralization that occurs in the company and the primary duties of guarantor (control of the source of danger) and secondary duties of guarantor (duty of coordination, control and surveillance) must be analyzed, where the duty of guarantee of the superior is delimited with the inferior being evident that not always the hierarchical superior responds for the excess of the subordinate.
In conclusion, there are difficulties to establish the objective criminal imputation in these cases, having to analyze which corporate body of the company is responsible and, within it, which person is criminally responsible and finally under which title of imputation: co-perpetrator, perpetrator-by-means, accomplice, to establish the criminal liability of the representative of the company but we must always take into account obligatorily: the causal nexus, dominion, the position of guarantor, diligent duty, the principle of trust, decentralization, the manual of functions, etc, to establish the real objective criminal liability of the legal representative of the company in the crimes of environmental pollution.