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PAMI
[COMPANY NAME]
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 THE CHALLENGES ON ENVIRONMENTAL REGULATIONS IN THE PHILIPPINES

Abstract

The Philippines has been one of the few countries in the world which is responsive to the
challenges of environmental protection. The earliest legal material can be traced as early as the
Spanish era in 1871 and even after that, there were several laws and regulations that were
implemented. However, most of these laws, policies and regulations which are still in effect,
were mostly if not all, addressing the concerns on social and economic aspect that affects the
environment. In short, most are just “piecemeal-approach” to environmental protection. It was
only during the martial law period in 1970’s, which also gave a rich harvest of other legislative
enactments, introduced an integrative approach to environmental protection, at least in terms of
formal law. And the challenge to the complex issues and concerns on environmental protection
continuously emerged considering the challenge of globalization, rapid urbanization, industrial
growth, population expansion, natural resources extractions, and the use of modern technology.
Legislative developments and a more integrated approach to environmental protection as
well as government re-organization were undertaken by the post martial law administration in the
wake of the United Nation Nations Conference and transformed the old administrative structure
into the Department of Environment and Natural Resources (DENR). Nevertheless, the
environmental challenges still remain. This is especially for an even more complex
environmental challenge, which is mining. A classic example which up until now we can still
draw lessons from the experience of La Fayette, Rapu-Rapu Mining Project in Albay Province.
Based on the secondary research and a Key Informant Interview, a lot were uncovered regarding
our environmental governance concerns and how we can further improve it. This mining project,
they say, is a proof that “sustainable mining” is in fact a contradiction. And a lot of
environmental challenges, environmental regulatory system, institutional and governance aspects
on environmental protection were uncovered. Although sad to say, these challenges are still not
being addressed until now. Hence, this research hopes to present not just the environmental
regulatory challenges posed by the environmental issues to the Philippines but also to propose
approaches using legal and governance tools, to address them.

Introduction

The year 2012 has witnessed two catastrophes related to mining activities in their
respective areas. In March-June, approximately 22 tons of fish have died in Bito Lake, Leyte due
to domestic waste, overstocking and contamination from the Chinese mining firm nearby. The
lake itself has turned murky, like a “3-in-1” coffee, according to local fishermen. In August,
another mining corporation spilled 20.6 Million metric tons of mine tailings to Balog and Agno
River systems of Benguet and Pangasinan. This was larger in volumes than another mine spill in
Marinduque’s Boac River, which was at the time the worst mining and environmental tragedy in
Philippine history. In addition, over 6.8 hectares of agricultural lands and fishponds in Palawan
have been destroyed by mine tailings spillage. In February 2013, a landslide hit a coal mine in
Semirara Island, Antique and killed 6 workers. Five months after, nine lives have been lost to
another landslide in the same province. The number of deaths by humans, land and marine
animals, and nature grow exponentially surrounding mining locations.

However, these disasters are more than just corporation liabilities. Through this paper,
the author aims to uncover weak points in the current environmental regulations by citing
specific case studies, of whose host communities were badly impacted in health and mortality
due to lack of government mechanisms and preparation. It also aims to open the discussion on
whether or not the country needs the mining industry for economic development, and how the
government manages to balance the cost of these explorative activities to the environment,
threat to biodiversity, and risk to human lives.

Extensive perusal of government reports, statements from the association of mining

companies, as well as civil society organizations advocating the protection of people’s rights
especially in small communities, editorials and an interview with the highly esteemed 2008
Metrobank Foundation Professorial Chair in Environmental Law Dr. Antonio G.M. La Viña have
been sought for this research.

Republic Act No. 7942: The Philippine Mining Act of 1995

The enactment of this law was intended to revive the Philippine mining industry by
increasing control of foreign and local investors, without breaching the basic Constitutional
principle that the ownership of all mineral resources in public and private lands within the
territory and exclusive economic zone of the Republic is of the State 1. It increased the financial
incentives for investment by allowing privatization of rights over the minerals and other natural
resources within the mining area. It provided the regulatory framework of entry and operation
of large-scale mining ventures and focused on the promotion of economic growth by making
the Philippines a major resource for mineral extraction and export.
CASE STUDY: The Death of Boac River in Marinduque

Ironically, just after a year of passing RA No. 7942, massive tailing at the Marcopper
Mine flooded the Boac and Makulapnit rivers. This happened after a badly sealed drainage
tunnel at the base of the Tapian Pit burst. The mined out pit had been used for storage of
sulfidic wastes from the nearby San Antonio Mine since 1992. An analysis conducted by the
mining company concluded that “the tailings deposit will be a long term source of acid and
metals in the environment. Due to oxidation of sulphides in the tailings, the production of acid
waters during rainstorms, and evaporation of these acid waters during dry spells, significant
deposits of soluble salts have built up within the tailings. These salts store acid and metals in a
readily soluble solid form until the next rainstorm, when they are likely to dissolve and produce
an ecologically damaging flush of acid and metals into the Boac River. The cycle of salt formation
and dissolution can be repeated each dry and wet period.2”
1
The Philippine Mining Act of 1995, Sec 2.
2
U.S. Geological Survey. An Overview of Mining-Related Environmental and Human Health Issues, Marinduque
Island, Philippines: Observations from a Joint U.S. Geological Survey – Armed Forces Institute of Pathology
 As a result, 700 families immediately suffered isolation, hunger, thirst and illnesses. The
damaged life support system of communities along the two rivers has never recovered until
now. 6-10 hectares of cropland used for banana and other agricultural purposes was totally lost
as a result of sedimentation. Due to the magnitude of the destruction, eventually killing the
river and all marine forms in it, The United Nations has declared this event an environmental
disaster.

Two years after the Marcopper tragedy, “59 children were found to have toxic levels of
lead in the blood. Due to chronic exposure, many illnesses, with some being fatal, have been
suffered by residents, spanning several generations. Fisherfolk constantly get direct contact with
contaminated seawater. They inhale the vapors from the sea breeze, and ingest it from
contaminated seafood, vegetables from polluted seas and soils. Present chemical analyses of
the tailings, pipes and waters in the area now reveal high toxicity and elevated levels of copper,
lead, cadmium, selenium, mercury, silver, cobalt, and arsenic. These heavy metals are harmful
to all living creatures.”3

Placer Dome, the firm that managed and partially-owned Marcopper wrote a
commitment letter and sent it to then-President of the Republic Fidel V. Ramos, stating, "I have
authorized the following commitments by Placer Dome: The residents of Marinduque who have
suffered personal inconvenience or damage to their property as a result of the Marcopper event
will be quickly and fairly compensated. … Placer Dome recognizes its responsibility to
rehabilitate all areas impacted by the tailings flow…. This program will include: 1) the
rehabilitation of the river system; 2) the remediation of off-river impacts; ….6) the development
and undertaking of a program of river and ocean rehabilitation."
Six years later, the river is still deluged in half of the originally spilled amount of tailings.
These tailings are discharging acid and heavy metals. The drainage is starting to leak again.
Thousands of villagers have not yet received compensation and the cleanup has been delayed
for years. Also, Placer Dome escaped the country and relinquished ownership to another
company, including the responsibility for cleaning up the river and compensating the victims.

In this case, the Mines and Geosciences Bureau, which is under the Department of
Environment and Natural resources (DENR) is the government agency responsible for
implementing the Philippine Mining Act of 1995. It issued the Environment Compliance
Certificate (ECC) to Marcopper in 1990, which allowed them to use the Tapian pit for mine
waste storage. However, the DENR Undersecretary for the Environment and Research, who
signed the ECC, claimed that he did not know about the Tapian drainage tunnel. It was not
mentioned to him by Placer nor by the experts hired on the environmental impact study. The
residents asserted that they knew about the tunnel for almost 20 years. Needless to say, no risk
assessments or Environment Impact Assessment were conducted on the Tapian Pit before using
it as an impoundment for tailings. No international consultants were consulted for the plugging
Reconaissance Field Evaluation, May 12-19, 2000, page 3. https://pubs.usgs.gov/of/2000/ofr-00-0397/ofr-00-
0397.pdf
3
Marinduque Mining Disaster. http://www.socialwatch.org/sites/default/files/pdf/en/marinduque2005_phi.pdf
of the tunnel at the bottom of the pit. No monitoring of the tunnel was carried out. The clean-
up of the river was delayed for years because Placer Dome ignored repeated government
directives to stop seeking a permit for Submarine Tailings Disposal as a clean-up option and to
find a suitable on-land disposal option.

CASE STUDY: Fish Kill in Bito Lake

. A murky lake greeted the fisherfolks of Barangay Imelda one May morning in 2012. This
was a month after the Bureau of Fisheries and Aquatic Resource (BFAR) Region VIII almost
cleared Chinese firm, Nicua Mining, from the death of 22 tons of fish.

“We saw right in front of us how the mine waste muddles up with our water. We were
caught in shock. The water runs fast from the mining site to Pangunawan Creek to Lake Bito.
The lake now looks dead” said Jesus Cabias, president of Unahin Lagi ang Diyos – Bito Lake
Fisherfolks Association (UNLAD-BLFA).

A June 14 press release from the National Secretarial for Social Action of the Catholic
Bishops’ Conference of the Philippines strongly condemned the excavation project. Accordingly,
“The continual mining operation at relentless speed, day and night, is turning the vast
agricultural land into a virtual desert.” It added that the firm drive a full-scale operation, only
meters away from the river outlet to the lake and unearthing magnetite.

Moreover, Department of Agrarian Reform Regional Director Eliasem Castillo observed

that land classified as agricultural in Leyte and Eastern Samar is being used for mining. “Without
clearance from us, that can be premature or illegal conversion.

Neither of these operations should be happening considering that these are covered by
conditions in the Philippine Mining Act of 1995, particularly Section 19 – Areas Closed to Mining
Applications, “b) Near or under public or private buildings… waterways… reservoirs, dams…
public or private works including plantations or valuable crops, except upon a written consent of
the government agency or private entity concerned.4”

“This is a grave offense to the people and the environment,” said Jaybee Garganera,
national coordinator of Alyansa Tigil Mina. “MacArthur magnetite mining is a clear threat to
food security wherein fishery industry in Lake Bito is at stake as well as rice production in the
area,’ he added.5

A local people’s organization president Jesus Cabias led the application for Temporary
Environment Protection Order (EPO) to stop the mining operation of Nicua Corporation in prime
agricultural lands of Villa Imelda and adjacent barangays in MacArthur Leyte.
4
Republic Act No. 7942. https://www.lawphil.net/statutes/repacts/ra1995/ra_7942_1995.html
5
ATM Press Release. May 13, 2012. https://hronlineph.com/2012/05/13/press-release-because-of-mining-ops-
lake-bito-in-leyte-turns-brown-atm/
 “Water is life and must be saved at all costs. Allowing mining to continue here will affect
not only our primary source of water and livelihood but also the future generations,” said
Cabias.6

“Our problem is that the mining operation is encroaching in prime agricultural lands—
we are talking about irrigated lands that were not even legally converted for other purposes.
Their activities threaten our food security, right to clean water, and livelihood,” he added.

Father Edwin Gariguez, executive secretary of the Catholic Bishops’ Conference of the
Philippines – National Secretarial for Social Action also noticed that “Chinese nationals are
hands on in the operation. They are the ones supervising the mining activities, instructing
Filipino workers in a language they do not understand.”

However, Cabias noted that the involvement of the DENR is characteristically of that a
legal representative for Nicua Mining, rather than a government bureau charged with the
responsibility to protect the environment.

Nicua, according to MGB director Leo Jasareno, is a responsible miner and if it did cause
the fish-kill, it may have done so accidentally. “But nevertheless, the company has to answer for
the disaster they may have caused,” he added.7
The firm has been mining magnetite or black sand in the towns of MacArthur and Javier
in Leyte since 2010. It is the only large-scale magnetite miner in the Philippines with all its
outputs exported to China. Magnetite is used for iron production.

The mining permit is under the name of Vincent Tan Tiong who has a mineral production
sharing agreement (MPSA) with the Philippine government.

In August 2012, Nicua voluntarily suspended its operations 8 and filed a notice of closure.
The decision to halt operations came right after receiving a show cause order against the
company for allegedly violating its Mineral Production Sharing Agreement (MPSA).

It was cited for allegedly failing to show proof of legitimacy of the employment causing
the displacement of murky water from Bito Lake to Mahanod Creek.

Up to this date, Nicua Corporation continues to operate across Leyte 9 despite the
violations determined earlier by MGB. This is a direct deviation from RA 7942 Section 96 that
6
Farmers, Fisherfolks File Petition For Environmental Protection Order Against Mining. Philippine Indigenous
Peoples Links. http://www.piplinks.org/farmers,-fisherfolks-file-petition-environmental-protection-order-against-
mining.html
7
Mines Bureau: Chinese miner Nicua may have caused fish-kill in Leyte. June 14, 2012.
https://www.gmanetwork.com/news/money/companies/261932/mines-bureau-chinese-miner-nicua-may-have-
caused-fish-kill-in-leyte/story/
8
Leyte miner halts work; 180 lose jobs. BusinessWorld. http://www.bworldonline.com/content.php?
section=Corporate&title=leyte-miner-halts-work-180-lose-jobs&id=57562
states, “Violation of the terms and conditions of the permits or agreements shall be a sufficient
of Chinese nationals; and the simultaneous transfer of four barges to another mining area
ground for cancellation of the same.”

CASE STUDY: The Biggest Mining Disaster in the Philippines

In August 2012, 20.6 million tons of toxic tailings were released into water bodies in the
Benguet province from the Philex Padcal Mine. Not only did it destroy livelihoods, it also
destroyed indigenous cultures and way of life as the mine is located on ancestral lands of the
Igorot tribes.

The company insisted that the massive spillage resulted from continuous rains brought
about by Typhoon Gener (international name: Saola). However, an analysis of the precipitation
tables has shown that the likelihood of a similar rainfall to be repeated in the rainy season is up
to 30%; hence, such weather conditions should have been incorporated in any responsible
planning.

Moreover, the tailings storage facility has exceeded its designed lifetime and was to be
shut down between 2010 and 2012; but the firm decided to continue using it. Therefore, there
is apparent evidence that the spill was caused by irresponsible planning and mining, rather than
an accident.10

Due to this spillage, Balog Creek, a once categorized as first class river, and the
downstream Agno River became heavily polluted, affecting agricultural lands and local
communities whose livelihood are dependent on the health of the river. Elevated levels of
metals included zinc, arsenic, and copper – 4.5 times higher than allowed. It had disrupted the
fishing industry for a period and fish catch has reduced significantly. Artisanal miners lost their
livelihood as well, as gold panning is not feasible any longer due to heavy contamination.

This sparked large protests demanding clean-up, compensations, and closure of the
mine. The government placed a P1 billion (23.6 million USD) on the company due to violation of
the 1995 Mining Act, and required payments of P188.6 million (4.3 million USD) for
environmental damages caused in violation of the Clean Water Act of 2004. Workers who
participated in the clean-up were further exposed to toxic waste.

After two years, the MGB lifted the suspension as by its estimate, the company has
satisfactorily subdued the hazards and paid the fines. However, as expressed by the scientific

9
Mineral Production Sharing Agreement (MPSA).
http://mgb.gov.ph/attachments/article/50/MAR_2019_MPSA_2A.pdf
10
Arturo Boquiren, 7 May 2013. Philex Mine Spill: Not due to Typhoon Saola (Gener), it is a Test on Responsible
Mining”.
https://file.ejatlas.org/docs/ATM_Art_Boquiren_On_the_Philex_Mine_Spill_of_August_2012__written_7_May_20
13_.pdf
advocacy group AGHAM, the suspension was “a clear case of the government’s blatant
disregard of the safety of the communities living within the mining area.” 11 It set a precedent for
more destructive mining disasters with greater impunity.

CASE STUDY: Semirara mining mishap

10 miners have been confirmed dead after a slope failed in the coal mining site owned
by Semirara Mining Corp in Caluya, Antique in February 2013. However, this is a case of bad luck
and according to Dr. Carlo Arcilla, UP National Institute of Geological Sciences Director. A review
of its topography shows no volcanoes around but it has yet to be determined if there are faults
in the area.

He explains that the mining site is close to the surface and in a flat surface, therefore the
easiest to mine it would be to create a systematic hole by layers. There was neither rain nor
extenuating circumstances for the slope to give way. It is possible that the sediments that hold
the coal were loosely packed and was not parallel to the bed; hence it could have been a failure
to the structure of the soil. This can happen in open pit mining, and it would have been very
difficult to predict it.

This is even more like a rockfall than a landslide that those 5 workers may not have been
aware when it happened. According to Dr. Arcilla, in conducting open pit mining, there is a
balance that needs to be struck between the strength of material and the angle of the slope. It
is a matter of ascertaining what kind of sediments one is dealing with to determine if gravity will
make it fall by itself.12

To help in calculating the miners’ safety, the technique is not to exceed the designed
slope. Geologists are needed to plan out as SOP for firms before conducting a mining operation.

After 13 years in operation, the February 2013 incident is the first of many that will come
after. 9 miners died in July 2015 and 2 alleged injuries were reported in 2018. By hindsight, it is
safe to rule out that the February rockslide was an accident, but the succeeding occurrences
could have been prevented by use of some measuring devices to monitor landslides. A forensic
study should have been conducted to find out why it collapsed, for example: the slide may
expose new faults which can be avoided.

Dr. Arcilla recommends that in order for the country to move forward with the lack of
personnel to police these activities, it needs mining firm owners to have a conscience to police
themselves. A problem lies in when investors are only after the profits, without concern for the
environment and the people.
11
Manila Bulletin Online, 31 August 2014. “Group protests resumption of mining operation in Benguet”
http://www.mb.com.ph/group-protests-resumption-of-mining-operation-in-benguet/
12
Top Story: Dr Arcilla – The accident on Semirara Island looks to me to be a case of bad luch.
https://www.youtube.com/watch?v=WtmMV3Q_t5I
 What’s interesting to note, however, is that coal and energy mine firms report to the
Department of Energy, rather than the MGB. Henceforth, it’s the Energy guys that monitor the
mining firm.

Also Semirara is the country’s only large-scale coal producer, accounting for more than
90 percent of the Philippines’ domestic coal production, and about 20 percent of the country’s
total coal demand. According to the company, virtually all of its revenue comes from the power
generation industry.13

This is where the problem lies. Any penalty imposed against Semirara’s operation – even
just a short term suspension during investigation – will also be felt by consumers through higher
electric rates. As other sources cannot even cover for a fraction of Semirara’s output, it will have
to be replaced with more imported coal, raising the generation costs. 14

CASE STUDY: Double spill in Palawan

The province of Palawan was unable to escape the harsh effects of irresponsible mining
from the two extraction concessions of Citinickel Mining and Development Corporation (CMDC).
In November 2012, toxic tailings from the Toronto Mine flowed into the Pinagduguan River and
irrigation canals affecting 6.8 hectares of farm lots and a fishpond. For that, the firm was levied
to pay penalties of P375,000 ($8,500) and operations has been suspended for 2 weeks. In June
2014, Pulot Sofronio Mine contaminated 5 kilometers of the Pasi and Pulot River, which is a
potable water source of residents and wildlife in the area. Because of this, MGB suspended the
operation for this site for an indefinite period, filed charges against the firm for violating
Republic Act 9275 or the Clean Water Act of 2004, and imposed a P200,000 penalty per day. It is
also mandated to institute measures to mitigate and remediate the damage caused by the
incidents and prevent its recurrence.

ON SUSTAINABLE MINING: The Australian Experience

The Australian mining industry has considerable experience in combining the concepts
of environmental accountability, social responsibility and commercial success. Sustainable
mining is a result of excellence in mining safety and health as well as efficiency in the extraction
of mineral resources.

13
Responsibility for the Semirara tragedy goes beyond the company. The Manila Times Editorial.
https://www.manilatimes.net/responsibility-for-the-semirara-tragedy-goes-beyond-the-company/202337/
14
Ibid.
 The Minerals Council of Australia’s Enduring Value Framework For Sustainable
Development enumerates critical guidelines to mining companies on applying for extraction
permits. It also assists the industry to operate in a manner which aligns with community
expectations, and which seeks to maximise the long-term benefits to society through the
effective management of Australia’s natural resources.

Conscious of the importance of environmental sustainability, the Australian mining

industry has invested heavily in personnel, training, scientific research and development to
ensure that the highest environmental, safety and community standards are achieved.

Australia’s mining companies recognize the need to conduct their mining and mineral
projects with an environmentally and socially responsible attitude. To do this, they have crafted
a range of initiatives and protocols that span through all stages of the mining process, from
initial exploration to mine rehabilitation and closure. These initiatives are further supported and
enhanced by the Leading Practice Sustainable Development Program in Mining initiative, which
was launched in 2006 by the Australian Government and the mining industry. The program
established best-practice procedures that encompass all stages of the mining process and the
key issues which affect sustainable mining.

Building sustainability into design. The Frieda River copper mine project in Papua New
Guinea is beset with many challenges, including very limited infrastructure in the region
(particularly power and transport), high annual rainfall, difficult terrain, acid rock drainage, and
complex socio-economic issues. Xstrata Copper (XCu) hired Australian consultancy Sinclair
Knight Merz (SKM) to carry out a pre-feasibility study (PFS) of the infrastructure (including
power station) components for the project. SKM recognised that adopting a ‘sustainability in
design’ approach would help to address these challenges. XCu engaged SKM to integrate
sustainability across the PFS, including the mine planning, process plant and pipeline
components undertaken by XCu and other consultants. SKM prepared the sustainability chapter
for XCu’s PFS report, demonstrating the integration of sustainability considerations into the
project design, including:
• method for transporting copper concentrate
• method of ore and waste rock haulage
• port location and main access road alignment
• airport location

Environmental Management. Australia is an ecologically fragile land with diverse

climate and landscapes, an environmentally aware population and very stringent laws to protect
the environment. This combination has resulted in the development of world-class expertise in
environmental management within the mining industry. Australian mining companies are at the
forefront of environmental assessment and management and have become a world authority
on environmental management. Their capabilities include, but not limited to:
 environmental baseline data collection, including surface and groundwater quality
and quantity, soil types, fauna and vegetation types and meteorological data
  feasibility planning to support the mine evaluation process, including economic,
environmental and social impact assessment
 developing robust environmental management systems and community engagement
initiatives suitable for use throughout the mine life cycle
 biodiversity management to minimise long-term impacts from operations, including
opportunities for improvement in the lease and adjacent areas by introducing
innovative and sustainable land management practices
 monitoring and measuring the performance of closure and rehabilitation activities
against the agreed standards and criteria
 leading-practice techniques during the operation of the mine to reduce the potential
for long-term issues associated with acid mine drainage

Community Engagement and Development. The mining services sector is an important

part of the Australian community as an employer and wealth creator. The Australian mining
industry works closely with communities to ensure positive relations between the mining
operation and the community. Community engagement and development are a key part of the
Leading Practice Sustainable Development for the Mining Industry program and Australian
mining companies are at the forefront of global best practice in these areas. Capabilities
developed on this include but are not limited to:
 community engagement planning and communication including stakeholder
identification and analysis and socio-economic and social impact assessment 15
 mine closure planning, including mine closure issues, and the integration of
economic, environmental and social elements into the decision-making process
 water management, including eliminating acid mine drainage risk

15
Sustainable Mining. Australia Unlimited. Australian Government. Australian Trade Commission.