Case Digest REPUBLIC v. vs. MARCOPPER MINING CORPORATION,. G.R. No. 137174 July 10, 2000

REPUBLIC OF THE PHILIPPINES, Represented by the POLLUTION ADJUDICATION BOARD (DENR),petitioner, vs. MARCOPPER MINING CORPORATION, respondent.

G.R. No. 137174               July 10, 2000

case digest

Respondent Marcopper Mining Corporation (MMC) was issued a temporary permit to operate a tailings⁶ sea disposal system under TPO No. POW-85-454-EJ for the period October 31, 1985 to October 21, 1986. Before it expired, MMC filed an application for the renewal thereof with the National Pollution Control Commission (NPCC). On September 20, 1986, MMC received a telegraphic order from the NPCC directing the former to "(i)mmediately cease and desist from discharging mine tailings into Calancan Bay." The directive was brought about through the efforts of certain religious groups which had been protesting MMC’s tailings sea disposal system. MMC requested the NPCC to refrain from implementing the aforesaid directive until its adoption of an alternative tailings disposal system

It is understood, however, that during the efficacy of this restraining order, respondent-appellant shall immediately undertake, at a cost of not less than P30,000.00 a day, the building of artificial reefs and planting of sea grass, mangroves and vegetation on the causeway of Calancan Bay under the supervision of the Pollution Adjudication Board and subject to such guidelines as the Board may impose.

SO ORDERED."¹⁰

In line with the directive from the Office of the President, the Calancan Bay Rehabilitation Project (CBRP) was created, and MMC remitted the amount of P30,000.00 a day, starting from May 13, 1988 to the Ecology Trust Fund (ETF) thereof. However, on June 30, 1991, MMC stopped discharging its tailings in the Bay, hence, it likewise ceased from making further deposits to the ETF.

From the issuance of the Order on May 13, 1988 until the cessation of the tailings disposal on June 30, 1991, MMC made its contribution to the ETF in the total amount of Thirty-Two Million Nine Hundred and Seventy-Five Thousand Pesos (P32,975,000.00). Thereafter, MMC filed a Motion dated July 9, 1991 manifesting that it would discontinue its contributions/deposits to the ETF since it had stopped dumping tailings in the Bay. MMC prayed that the Order issued by the Office of the President on May 13, 1988 be lifted.

On February 5, 1993, the Office of the President rendered a decision in O.P. Case No. 3802 dismissing the appeal; affirming the cease and desist Order issued by the PAB; and lifting the TRO dated May 13, 1988. The Office of the President resolved the appeal in this wise:

"This brings to the fore the primordial issue of whether or not the Secretary of Environment and Natural Resources gravely erred in declaring the TPO No. POW-86-454-EJ issued to respondent-appellant MMC expired on February 10, 1987, and in ordering the latter to cease and desist from discharging mine tailings into Calancan Bay.

Respondent-appellant argues that the cease and desist orders were issued by the PAB ex-parte, in violation of its procedural and substantive rights provided for under Section 7 (a) of P.D. No. 984 requiring a public hearing before any order or decision for the discontinuance of discharge of a sewage or industrial wastes into the water, air or land could be issued by the PAB.

We are not persuaded.

Section 7(a) of P.D. No. 984, reads in part:

"Sec. 7(a) Public Hearing. – Public hearing shall be conducted by the Commissioner, Deputy Commissioner or any senior official duly designated by the Commissioner prior to issuance or promulgation of any order or decision by the Commissioner requiring the discontinuance of discharge of sewage, industrial wastes and other wastes into the water, air or land resources of the Philippines as provided in the Decree: provided, that whenever the Commission finds a prima facie evidence that the discharged sewage or wastes are of immediate threat to life, public health, safety or welfare, or to animal or plant life, or exceeds the allowable standards set by the Commission, the Commissioner may issue an ex-parteorder directing the discontinuance of the same or the temporary suspension or cessation of operation of the establishment or person generating such sewage or wastes without the necessity of a prior public hearing. x x x . (underscoring supplied).

p then, it is self-indulgent nonsense to assume that the DENR Secretary, acting as PAB Chairman, is absolutely without authority to issue an ex-parte order requiring the discontinuance of discharge of sewage or other industrial wastes without public hearing. As can be gleaned from the afroequoted proviso, this authority to issue an ex-parte order suspending the discharge of industrial wastes is postulated upon his finding of prima-facieevidence of an imminent "threat to life, public health, safety or welfare, to animal or plant life or exceeds the allowable standards set by the Commission

"The issue before this Board is whether Marcopper Mining Corporation is still obliged to remit the amount of P30,000.00 to the CBRP. The answer by the Order from the Office of the President dated 13 May 1988, which states that the obligation on the part of Marcopper Mining to pay the amount of P30,000.00 per day for the rehabilitation of Calancan Bay is binding only during the efficacy of the said Order.

The record further shows that on 05 February 1993, the Office of the President lifted its Order dated 13 May 1988. This means that as of the date of the lifting, Marcopper Mining Corporation no longer had any obligation to remit the amount of P30,000.00 to the CBRP. Thus, Marcopper’s obligation only runs from 13 May 1988 to 05 February 1993. Beyond the cut-off date of 05 February 1993, Marcopper is no longer obligated to remit the amount of P30,000.00 per day to the CBRP.

It does not matter whether Marcopper was no longer dumping its tail minings into the sea even before the cut-off date of 05 February 1993. The obligation of Marcopper to pay the amount of P30,000.00 to the CBRP arises from the Office of the President Order dated 13 May 1988, not from it dumping of mine tailings.

WHEREFORE, Marcopper Mining Corporation is hereby ordered to pay the CBRP the amount of P30,000.00 per day, computed from the date Marcopper Mining Corporation stopped paying on 01 July 1991, up to the formal lifting of the subject Order from the Office of the President on 05 February 1993.

SO ORDERED."¹⁴

Issues:

I

The Court of Appeals erred in ruling that Republic Act No. 7942 (otherwise known as the Philippine Mining Act of 1995) repealed the provisions of Republic Act No. 3931, as amended by Presidential Decree No. 984, (otherwise known as the National Pollution Control Decree of 1976), with respect to the power and function of petitioner Pollution Adjudication Board to issue, renew or deny permits for the discharge of the mine tailings.

From the foregoing, it readily appears that the power of the mines regional director does not foreclose PAB’s authority to determine and act on complaints filed before it. The power granted to the mines regional director to issue orders requiring the contractor to remedy any practice connected with mining or quarrying operations or to summarily suspend the same in cases of violation of pollution laws is for purposes of effectively regulating and monitoring activities within mining operations and installations pursuant to the environmental protection and enhancement program undertaken by contractors and permittees in procuring their mining permit. While the mines regional director has express administrative and regulatory powers over mining operations and installations, it has no adjudicative powers over complaints for violation of pollution control statutes and regulations.

True, in Laguna Lake Development Authority vs. Court of Appeals,²³ this Court held that adjudication of pollution cases generally pertains to the Pollution Adjudication Board (PAB) except where the special law provides for another forum. However, contrary to the ruling of the Court of Appeals, RA 7942 does not provide for another forum inasmuch as RA 7942 does not vest quasi-judicial powers in the Mines Regional Director. The authority is vested and remains with the PAB.

Instead, it appears that the legislature intended to maximize the exploration, development and utilization of the country’s mineral resources to contribute to the achievement of national economic and social development with due regard to the social and environmental cost implications relative thereto. The law intends to increase the productivity of the country’s mineral resources while at the same time assuring its sustainability through judicious use and systematic rehabilitation. Henceforth, the Department of Environment and Natural Resources as the primary government agency responsible for the conservation, management, development, and proper use of the State’s mineral resources, through its Secretary, has the authority to enter into mineral agreements on behalf of the Government upon the recommendation of the Director, and to promulgate such rules and regulations as may be necessary to carry out the provisions of RA 7942.²⁶ The PAB and the Mines Regional Director, with their complementary functions and through their combined efforts, serve to accomplish the mandate of RA 3931 (National Pollution Control Decree of 1976) as amended by PD 984 and EO 192 and that of RA 7942 (Philippine Mining Act of 1995).

We must sustain the appellate court on this point on account of the testimony of Mr. Edel Genato.1âwphi1 Further, we note that the Office of the President never objected nor ruled on the manifestation dated July 9, 1991 filed by MMC that it would stop paying since it already ceased dumping mine tailings into the bay. Still further, the order of the OP directing MMC to rehabilitate at a cost of P30,000.00 a day "during the efficacy of the restraining order" had become functus officio since MMC voluntarily stopped dumping mine tailings into the bay.

II

Respondent Marcopper Mining Corporation bound itself to pay the amount of P30,000.00 a day for the duration of the period starting May 13, 1988 up to February 5, 1993.

we now go to the issue of whether the appellate court erred in ruling that there is no basis for further payments by MMC to the Ecology Trust Fund of the Calancan Bay Rehabilitation Project considering that MMC "convincingly argued and which respondent unsatisfactorily rebuked, the existing fourteen (14) million pesos in the ETF is more than enough to complete the rehabilitation project." Indeed, the records reveal that witness for PAB, Mr. Edel Genato, who is the Technical Resource person of the PAB for the project admitted that the funds in the ETF amounting to about Fourteen Million Pesos are more than sufficient to cover the costs of rehabilitation. 

III

Respondent Marcopper Mining Corporation was not deprived of due process of law when petitioner Pollution Adjudication Board directed it to comply with its long-existing P30,000.00 per day obligation under the Order of the Office of the President dated May 13, 1988.¹⁵

We must sustain the appellate court on this point on account of the testimony of Mr. Edel Genato.1âwphi1 Further, we note that the Office of the President never objected nor ruled on the manifestation dated July 9, 1991 filed by MMC that it would stop paying since it already ceased dumping mine tailings into the bay. Still further, the order of the OP directing MMC to rehabilitate at a cost of P30,000.00 a day "during the efficacy of the restraining order" had become functus officio since MMC voluntarily stopped dumping mine tailings into the bay.