“Repsol has an extended responsibility for implementing the contingency plan”

— As an expert in environmental matters, in principle, what did you feel with this news of this huge oil spill in the Ventanilla Sea?

—The first feeling is the one we all share: indignation, knowing that Repsol could not identify the level of seriousness of the spill at first. And that, subsequently, we continue to see inaction by both Repsol and the public sector in dealing with the spill.

— This could have been avoided because clarity was necessary on the part of the Peruvian Navy regarding what happened in this volcanic eruption in the South Sea, Tonga, and also the necessary actions to mitigate the alleged abnormal waves indicated by the company .

—It is true that it could have been avoided if the Navy had published the alert it received from monitoring abnormal waves in Hawaii. Normally, what is done is only to receive the alert from the Hawaii plant and republish it, and that puts all the prevention measures on the coast into action. However, the captain of the ship and the company also receive this information and are also able to take preventive measures without waiting for a notice from the Navy. In other words, this information was already known by the ship, at least, which has a legal responsibility to protect human lives and the environmental impact that any accident or risk situation could generate.

— Yesterday in an interview, the CEO of Repsol Peru insisted that the event occurred due to abnormal waves after the eruption of the submarine volcano in Tonga, but the State entity indicates that this was not the case. That at that time the sea of ​​Ventanilla was calm, even nautical athletes have pointed out that the sea was calm at that time. And they have pointed out that there was no reason to blame abnormal waves for a situation that occurred with this ecological disaster. What do you think?

—At this point, we would still be speculating to adopt one or the other option. It seems to me that the specialized technical entities are the ones who have to determine what the cause was: if it was an anomalous wave or if it was a mechanical failure in the fuel discharge. However, despite attributing the remote cause to one or the other, the environmental responsibility remains clear that it belongs to Repsol, who was carrying out the activity at that time. So regardless of whether it's one version or the other, which is unclear at this point, we'd just be speculating. Administrative and environmental responsibility continues to fall on the company.

— That's right, precisely, sports sailors who were at that time when this disaster occurred, pointed out that their sailing championship at sea was suspended because the winds died down and the sea looked like a pool. Therefore, the situation of abnormal waves is ruled out, which obviously brings to the ground what was indicated by Repsol. Could this really have happened like this, and in any case, which state agency should ratify this version?

“It's a good question that makes us question a lot more. In Peru, we have opted for a system of environmental competencies that is organic, there is not a single institution, but rather it is a systemic responsibility. They are called functional systems. So, in this case, there are two entities that have jurisdiction over the activity. OEFA is the entity for environmental control over economic activity, but DICAPI, the Directorate of Captaincies and Coastguards of the Navy, is also an environmental control entity and is the entity that has jurisdiction over the approval of environmental plans and instruments and the control of activities on the Peruvian coast. In short, OEFA and DICAPI have shared and complementary responsibilities to assess liability in this case.

— Yesterday, the CEO of Repsol himself indicated that the cleanup mitigation tasks will be completed by the end of February. Do you think that this is possible to achieve in that time?

“I certainly hope so. Let it be remedied in the shortest time. I think it is important to note, and this is key, that Repsol's responsibility is not an occasional responsibility, that is, the responsibility attributed to it is not restricted to what happened in the second or two seconds in which the leak. That, due to the amount, it was probably longer than they say and they did not arrest him. However, what I want to say is that Repsol has an extended responsibility for implementing the contingency plan and preventing damage. We are facing a continuous infringement, not a punctual infringement. Therefore, every day that the contingency plan is not implemented, every day that the impact it has on the environment is allowed to worsen, is configured as part of a single long infraction that will have to be evaluated by the administrative authorities in due course to the imposition of a sanction, remediation measures and quantify what is the true environmental damage caused by this continued infraction that they are planning to extend until the end of February.

— With regard to this, and as you rightly point out, cleaning is important, but also the remediation of the disaster area. But we have seen at the beginning the participation of few people collecting the spill with dust pans, brooms, shovels and wheelbarrows. The mayor of Ventanilla was right to claim this situation, but why do you think Repsol took so long to do so, knowing that they are an oil company and that there could be this type of contingency? Obviously, their immediate involvement in these cleanup efforts was needed.

—Yes, I cannot be in the head of Repsol's decision makers. Repsol's contingency plan and emergency response plan already exists, it has been approved by DICAPI and the idea of ​​having a contingency plan is precisely not having to think about what measures we are going to take at the time of the spill, not having to look for people or hire people. If not, have a plan ready that is activated immediately as soon as the emergency is detected. In this case, it seems that Repsol has applied the contingency plan for an emergency with a minor impact, when it is an emergency with a serious impact. In other words, the response measures have not been proportional, they have not been adequate. And that constitutes a formal breach of the contingency plan and also aggravates the impact that the spill may have on the ecosystem by not addressing it in time with the appropriate measures.

— By the way, we are talking about 6,000 barrels of oil, they were not 6 or 7 gallons as the company initially said. We are talking about 6,000 gallons of black oil, which is still polluting the Mar de Grau. In this sense, the premier Mirtha Vásquez affirmed that the legal aspects are being evaluated and that there would even be the possibility of a suspension of the company's license. The issue is to see, obviously, the legal mechanisms, what is the right thing to do in this regard?

—That decision corresponds to the competent technical entities. The decision to suspend the company's license is made by the Ministry of Energy and Mines. The decision will have to be made based on the true severity of the damage. I hope that it is not taken based on speculation, we are not talking about a kind of revenge to quantify and impose the sanction. What we really must attend to and what public opinion must maintain pressure on (and interest in public participation) is precisely to repair the spill as soon as possible. That should be the priority right now, sanctions or speculation about how bad the sanctions are should take a backseat. Because that is a formal plan and at this time we are dealing with the substantial plan, which is the very serious impact that the emergency is having, not only on natural resources, but mainly on the local population and the economic sectors that have been hit. For example: the lack of confidence in the consumption of fish, how that affects our fishermen, not only from Ventanilla, but from the entire coast. I believe that these types of impacts are where public opinion can contribute: by providing accurate information and not speculating about the severity of the impacts, but by giving peace of mind to people who are very concerned about the impact of the spill.

- And it is that this spill, obviously, the amount of oil poured into the sea has been rising to the north. As we know we have a sea current, the Humboldt sea current; And in that sense, do you consider that until progress is made quickly in the cleanup and remediation, this spill will be able to continue advancing north? Because we have seen that Caletas, beaches in Chancay are already affected, not only Ventanilla, but also Ancón and gradually rising to the north of the Peruvian coast.

Yes, I think the key response is to respond quickly and assertively. I also believe that as the response is delayed, legal responsibilities for compensation are generated, not only with the fines that could be imposed by OEFA and DICAPI, not only with the suspension of the license that the Minem could decide; but also responsibility for compensation with each of the populations that are affected. We are no longer just talking about the economic, social, and health impact (the continued health risk that the adjoining beaches could have), but we are also talking about an area of ​​indirect impact. The residents could legitimately initiate legal actions for compensation, for civil liability against Repsol for the indirect impact that this spill and its inaction, above all, is having on their livelihoods and possibly their health.

— What does Peruvian law provide regarding the national regulatory framework regarding compensation to injured parties?

—In the case of compensation, what begins is not an administrative process, but a civil one. That begins through a judge in the Judiciary, where current damages, possible damages, lost profits must be proven. There are several legal categories on which compensation can be sought, not only actual loss, but also potential loss of income, so to speak. For example, if I have a tourism business on a beach that has been contaminated and that business is suspended due to the spill, not only during January and February, but for a long time. This figure is called lost profits and it is the expectation of what you could have earned if it had been remedied on time. And those types of categories also fall under civil liability compensation. The process can also be prolonged due to the practice of the judges in the matter and due to the ability to test. But the Law, the Peruvian legal system, contemplates that these types of remedies can be used and in many countries these remedies are justly requested through pro bono lawyers or non-profit services, which help the affected populations to initiate this type of process. . So we also expect, as we have seen on social media, action from all my colleagues to help local populations who have been harmed to get the right remedies.

- On the other hand, what do you think of this national crusade for the donation of human hair that can be used in the work of cleaning up that sea of ​​oil in the north of the coast?

—It is a complicated aspect because I understand that we all want to do something. The first question you asked me was how you feel about that and what I told you was that I feel outraged like many of us. So, I understand that we all want to do something and the fact that we feel that we can contribute with something that doesn't cost us, like a small sacrifice of cutting our hair and we perceive that we are already helping. It really shows the solidarity that we have as Peruvians by uniting efforts, all together. Unfortunately, in a legal sense, I think it can be counterproductive because the responsibility for cleaning up the oil does not belong to the local population or the municipalities that are campaigning to cut people's hair, but to the company that caused the spill. There are also campaigns to donate towels and detergents to the Parque de las Leyendas, to which I invite everyone to donate; but I hope that this is the last time that we have as citizens to assume the responsibility that is clearly the cause of the spill.

— Finally, what should be done in the future to avoid this type of disaster?

—A very clear action that we can take is to sign the Escazú Agreement. This contemplates and strengthens the mechanisms of transparency, public participation, defense of the environment, access to justice in environmental aspects. Everything we have talked about in this interview falls within the Escazú Agreement. It has taken us days to access Repsol's contingency plan and, later, we are talking about compensation, which is access to justice in environmental matters. I think this is a good time to put the ratification of the Escazú Agreement back on the table, which would allow us as a country to better institutionally deal with this type of emergency.