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PHL's system to harmonize environment, social progress fraught with ECC violations.

IN January businessmen saw green. Weeks later, they were red in the face.

Early this year, executives of a joint venture between Hotel of Asia Inc. and Newcoast Southbeach Inc. announced plans to build what they claim would be the biggest 'green' hotel on Boracay Island in the Western Visayas Region. The businessmen pointed to a 2-hectare property sitting at the beachfront on the world-famous tourist paradise as the location of such property.

Their plans may have to wait.

At least until an ongoing crackdown against erring establishments on the island paradise in the municipality of Malay, Aklan province, stops.

The Task Force Boracay (TFB) headed by Secretary Roy A. Cimatu of the Department of Environment and Natural Resources (DENR) has uncovered grave violations of environmental laws, including the construction of resorts and hotels without the benefit of an environmental compliance certificate (ECC).

As early as February this year, the DENR's Environment Management Bureau (DENR-EMB) has stopped accepting online application for the processing of ECCs and Certificate of Non-Coverage (CNC) for development projects on Boracay Island following President Duterte's marching order to the TFB to address environmental problems besetting the country's top tourist destination.

A BusinessMirror report said the proposed project with a 1,001-room capacity is an environmentally critical project to be built on an environmentally critical area. This area is the beachfront of an island flocked by tens of thousands of local and foreign tourists.

Boracay is currently besieged by various environmental problems, including the massive destruction of timberland or forest land and wetland areas, water pollution, poor solid-waste management and perennial flooding.

Threatening to shut down and stop tourism activities on the island, Duterte tagged Boracay as the country's biggest 'cesspool' because of the direct discharge of untreated wastewater into the beach, polluting its 'pristine' waters and aquifer in many parts of the island.

Early this month, the TFB composed of the DENR, the Department of Tourism (DOT) and the Department of the Interior and Local Government (DILG) declared a six-month moratorium on new construction on the entire island.

The DOT also stopped accreditation for resorts on the island.

While several establishments on the islands have approved ECCs, some senators during a series of on-site public hearings were puzzled as to how some establishments were able to construct without an ECC. The lawmakers also expressed surprise on how some establishments were able to secure ECCs for environmentally critical projects over equally environmentally critical areas such as wetlands and forestlands.

Could this be happening elsewhere in the country?

What is an ECC?

AN ECC is a requirement under the Environmental Impact Statement (EIS) System established under Presidential Decree 1586 signed by then-President Ferdinand E. Marcos on June 11, 1978.

According to DENR Department Administrative Order (DAO) 2003-30, specifically the implementing rules and regulations of the law, an ECC is 'a document issued by the DENR through the EMB after a positive review of an ECC application, certifying that based on the representations of the proponent, the proposed project or undertaking will not cause significant negative environmental impact.'

The ECC also certifies the proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan.

An ECC contains specific measures and conditions that the project proponent has to undertake before and during the operation of a project and, in some cases, during the project's abandonment phase to mitigate identified environmental impacts.

Currently, an ECC is issued by the respective regional offices of the EMB where the project is located or the DENR-EMB Central Office for big-ticket projects. Aside from an ECC, the DENR-EMB also issues CNCs, which are documents issued by the DENR stating that the proposed project is not covered by the Environmental Impact Assessment System and, hence, the proponent is not required to secure an ECC.

Flawed IRR

VARIOUS environment groups claim several flaws exist in the EIS System. These groups alleged this system is ineffective in assessing the environmental impact of development projects.

The Davao-based watershed advocacy group Interface Development Interventions (IDIS) even said DAO 2003-30 watered down the essence of the law.

The law behind the EIS System requires all government and corporate companies to prepare an environmental impact assessment (EIA) for any environmentally critical project or any activity situated within the environmentally critical area (ECA) to determine the project's impact on the quality of the environment.

But DAO 30-2003 altered previous guidelines that had explicitly called for mandatory consultations, social acceptability and other environmental safeguards in the EIS system, the IDIS said in a study presented in a forum at the Human Rights Center of the Jesuit-run Ateneo de Manila University.

IDIS commissioned the legal study from the alternative law group Sentro ng Alternatibong Lingap Panlegal (Saligan) in 2011.

In its review, Saligan claims DAO 30-2003 is inconsistent with the precautionary principle of the EIS System law.

Under the DAO 30-2003, only projects that pose a potentially significant impact to the environment shall be required to secure ECCs, which goes against the principle that an environmentally critical project or a project in an environmentally critical area is required to secure an ECC, the Saligan report had said.

The DAO also withers down the previous DAO 37-1996 provisions of public participation and social acceptability under the EIS System.

The conduct of mandatory public hearing is now limited to environmentally critical projects and public hearing becomes EMB's discretion.

Under DAO 30-2003, not all projects with ECCs are required to form multipartite monitoring teams (MMT), a body set up to monitor the proponent's compliance with the conditions of the ECC. MMTs are now only required for ECPs and MMT reports are only required to be submitted twice a year and not quarterly.'

'Colorful' Boracay case

DENR-EMB Director Metodio U. Turbella said he is not aware of development projects with no ECCs.

If such a case even exists, the project proponents will be in a lot of trouble, Turbella said.

Without an ECC, the project or business operation will undergo thorough investigation, he explained. Turbella added that the proponent may be slapped with cases for violation of environmental laws, penalized and fined or, worse, receive a cease-and-desist or stop-operation order.

The establishment and its facilities may also be dismantled, he added.

However, Turbella described the case of Boracay Island as 'unique.'

'Boracay is very colorful,' he said. 'You cannot compare Boracay to other areas that have zoning and areas declared as alienable and disposable land.'

Turbella added Boracay is an ecotourism destination but also, as a whole, is a timberland or forestland.

Proclamation 1064

WHILE Boracay is a certified tourism magnet, the island is not different from other areas.

Vast areas in Boracay have been declared as agricultural land by virtue of Proclamation 1064 signed by President Gloria Macapagal-Arroyo on May 22, 2006. The order designated 400 hectares of reserved forest land for protection purposes and 628.96 hectares for agricultural land.

Some property owners have been arguing with the government over Boracay, insisting on their property rights on the island, portions of which had been classified as alienable and disposable land.

The legality of Proclamation 1064 was questioned by private resort owners on the island before the Supreme Court.

In 2008, however, the SC affirmed Proclamation 1064 and junked the petition filed by property owners, many of whom have no land titles.

Property owners with land titles on the island are not covered by the SC decision.

Some parcels of land on Boracay Island are titled lands by virtue of judicial titling that started as early as the late 1930s.

'Marriage contract'

TURBELLA likens the ECC to a contract between a groom and bride without which a union or partnership is unlawful or illegal.

With this, he believes the Boracay case is unique and there is no way it should be happening elsewhere in the country.

'It is impossible that a business or building can operate with no ECC. Before anything else, there should be an ECC,' he said in Pilipino. 'It is like a marriage contract. Without an ECC, there should be no contact. They should [not] be together in one room.'

He said isolated cases that have been reported to the DENR or complaints reported by the media will be investigated, nevertheless, citing the case of five mills that were the subject of a complaint filed by certain groups.

According to Turbella, business establishments should comply with the terms and conditions of their approved ECC, which include compliance of various environmental laws, particularly the Clean Air Act, the Clean Water Act, the Ecological Solid Waste Management Act and the Hazardous and Toxic Waste Management Act.

'These four laws form part of the terms and conditions of an ECC,' he said.

Any violation of these laws, he said, is a violation of the ECC and may be a ground for the imposition of penalty and fines that will hurt the business financially.

Another basic requirement in granting ECC is proof of authority, according to lawyer Michael Drake P. Matias.

Matias, who is also chief of the DENR-EMB's Environmental Impact Assessment Management Division, said these are documents proving the proponent has the right over the property to implement development projects.

For projects on privately owned lands, a land title or lease agreement or proof of ownership over the land is a must, he said.

If the project is to be constructed and the business operation is to be done in lands of public domains such as forest, wetland, foreshore land or coastal areas, a tenurial instrument is required.

Tenurial instruments may be in the form of Forest Land Use Agreement for Tourism Purposes, Community-Based Forest Management Agreement, Special Land Use Permit, Industrial Forest Management Agreement (Ifma) and Socialized Industrial Forest Management Agreement (Sifma).

Without a tenurial instrument, the issuance of an ECC for projects within lands of public domain such as forest land, wetland, foreshore land or other environmentally critical areas is, per se, illegal, especially for environmentally critical projects. Without an ECC, any construction or business operation undertaken on these areas would be declared illegal.

Slap on the wrist

MATIAS added that a violation of environmental laws is not necessarily a violation of the terms and conditions of an ECC.

Any alleged violation which usually comes after an investigation of a complaint should be conducted by the DENR regional offices, according to Matias. He cited as an example the discharge of wastewater.

'[That] is not a violation of the ECC; it is a violation of the Clean Water Act. It may be a part of compliance of the ECC. But if you violated the laws-clean air, clean water, ecological solid waste and toxic waste-the company will be prosecuted based on the laws violated,' Matias said.

'Under clean water, you will be issued a notice of violation. Then you will be invited to attend a technical meeting. For purpose of clarity, for me, they [violators] should be prosecuted based on environmental laws violated and not on the ECC,' he added.

Matias noted the Philippine EIS System, particularly the ECC requirement, is an old law and imposes only a minimal fine of P50,000. Under the Clean Water Act, the fine ranges from P10,000 up to P200,000 a day.

Severe fines

MATIAS said that the penalty and fines under the Clean Water Act are more severe and will deter any company from violating the law.

He also noted that the types of notices of violation should specify the environmental law allegedly violated.

'An ECC is a requirement before business starts operation. The purpose is to determine what [the possible impact of the project is],' Matias said. 'Under the law, you cannot implement a project without an ECC. But, it doesn't mean that if you have an ECC, you can start a business.'

According to Matias, the ECC owner still needs to secure many permits.

'[These include] business permit, permit to operate and other permits being required by LGUs.'

He said even with approved ECCs, it does not reflect the actual development that is happening in the country because, in some cases, even with approved ECCs, development projects are sometimes delayed or implemented years later.

'I don't know if the ECC will be reflective of development projects. In the Central Office, we only issue environmentally critical projects like power plants,' Matias said. 'Power plants take years before implementation. One ECC we issued in 2012 has not yet started because there is a pending case.'

Cimatu probe

LAST year, Cimatu had ordered an immediate investigation into the possible violations of environmental laws by five steel mills accused of emitting high air pollution levels that are detrimental to the environment and public health.

The investigation stemmed from reports about the alleged labor and environmental violations committed by Melter Steel Corp., Real Steel Corp., Wan Chiong Steel Corp., all in San Simon, Pampanga, Davao Mighty Steel Corp. in Davao and MetroDragon Steel Corp. in Caloocan City, for various violations of Republic Act 8749 or the Clean Air Act and the Environmental Impact Assessment, or ECC law.

The labor-rights group Philippine Association of Free Labor Unions (Paflu) and environmental group Clean Air Philippines Movement Inc. (Capmi) alleged the air pollution at the mills exceeded the maximum level set by the World Health Organization (WHO).

Paflu and Capmi had earlier lodged a complaint with the Department of Labor against the mills based on their findings for allegedly exposing their workers to health risks.

Capmi also claimed the companies were able to operate without an ECC.

The investigation, according to Turbella, is being conducted by the DENR-EMB regional office with jurisdiction over the companies-in this case, DENR-EMB Central Luzon.

'It is not possible that these companies are able to construct without an ECC,' he said. 'Perhaps there is something wrong about the complaint.'

The complaints filed since October by Capmi before the DENR-EMB are still under investigation.

Lopez's audit

REGINA Paz L. Lopez has been criticizing the agency she led for being 'corrupt.'

During her stint as DENR chief, she had ordered a nationwide review of ECCs, which she said should not have been issued to project proponents because of their respective potential environmental and social impacts on the areas they operate in.

Between 2016 and 2017, Lopez had issued ECC cancellation and show-cause orders for several projects. Mostly mining operations, these projects are within or near an environmentally critical area-a watershed, a protected area, or a unique forest and biodiversity-rich area with critically endangered species.

Subsequently, Lopez's campaign placed around 800 previously issued or approved ECCs under review.

The review is on top of the mine audit that also includes environmental and biodiversity considerations among the audit criteria.

The ECCs ordered canceled include that held by Austral-Asia Mining Corp. for a nickel mine in Mati, Davao Oriental. The ECC application of MRL-Egerton Gold Philippines for its mining projects in Lobo and San Juan towns in Batangas were also rejected. Both are within biodiversity-rich areas.

Lopez, acting as DENR chief, had also canceled the ECC of Century Properties Corp. for its Nova by Century Project, a housing project, within the La Mesa Watershed. The order was made final and executory.

Lopez's ECC cancellation and show-cause order issuance spree came side by side with a 10-month crackdown on irresponsible mining operations. She issued mine closure and suspension orders that affected 26 large-scale mines. She also revoked 75 Mineral Production Sharing Agreements (MPSAs).

Lopez also revoked the financial and/or technical assistance agreement of Sagittarius Mines Inc. for the multibillion-dollar Tampakan Copper-Gold Project, whose ECCs for the project were also revoked on the basis that the projects are situated within or near watersheds.

Centralized processing

DURING her watch, Lopez issued an order centralizing the processing of ECC applications, in effect clipping the powers of the EMB regional offices.

She said the order was based on the initial findings of the ECC review undertaken in her time in office. The review revealed that the DENR, under the administration of President Benigno S. Aquino, whose family was a friend of the Lopez clan, was too lenient in approving ECC applications.

To recall, Lopez signed on February 15 DAO 2017-04, titled 'The amendment of DAO 2016-07 dated May 19, 2016, on manual of authorities on technical matters,' which centralizes the processing of all ECC applications.

Under the order, the project proponent, specifically of environmentally critical projects, as well as non-environmentally critical projects but are situated in environmentally critical areas, needs to get the approval of the Office of the DENR secretary.

An average of 5,000 ECCs is filed every year for various development projects since an ECC is a prerequisite before they can start construction and eventually do business. As a result, the number of approved ECCs issued by DENR in 2016 and 2017 declined, compared to that in 2013, 2014 and 2015.

A five-year back-review of approved ECCs by the DENR revealed that in 2016, the DENR-EMB Central and Regional Offices approved a total of 356. In 2017, the number went down to just 177.

In 2013, a total of 4,081 ECCs were approved; 4,100 in 2014 and 2,813 in 2015.

Curiously, the Central Visayas Region, where Boracay is situated, has the most number of approved ECCs between 2013 and 2015. In 2013, a total of 404 ECCs were approved; 452 in 2014 and 385 in 2015.

In 2016, a total of 11 ECCs were approved in the same region and 1 in 2017.

Decentralized processing

SINCE an ECC is a prerequisite in applying for the building permit, permit to operate or business permit, development activities in many areas slowed down.

An official, who requested anonymity, told the BusinessMirror the DENR Central Office during Lopez's watch was deluged by ECC and CNC applications. The official, who is not authorized to speak on the matter, said reversing Lopez's order was recommended.

Eventually, Cimatu restored the power of DENR-EMB regional offices to undertake the processing of ECC applications.

Department Administrative Order (DAO) 2017-18, signed by Cimatu in July last year, aims to address the problem brought about by Lopez's order as part of the ECC audit.

'In the interest of service and in order to expedite the issuance of ECCs in the regional level consistent with the directive of the President to fast-track the issuance of government permits and licenses, DAO 2017-04 is hereby suspended indefinitely,' Cimatu's order read.

With the processing of ECCs back in the hands of DENR-EMB regional offices, there is an expected spike in the number of approved ECCs.

Rampant violation

DENR Undersecretary for Policy and Planning, International Affairs and Foreign-Assisted Projects Jonas R. Leones, however, said violations of the EIS System, particularly the construction and operation of businesses, with or without ECCs, are rampant and may, in fact, be happening in other tourism destinations for a long time.

Leones said the DENR is now looking at ECC violations committed by business establishments, particularly in tourist destinations, all over the country. These include areas that are up for development.

In the case of Boracay, Leones said some of the establishments were built without an ECC.

Some were built on forestlands and wetlands. According to him, all these establishments will receive a notice of violation from the DENR.

Leones, the designated spokesAman of Cimatu and former Director of the DENR-EMB, said some businesses are in the habit of constructing establishments even without securing an ECC.

He said this happens with the collusion of concerned local government units (LGUs).

When this happens, he said there is speculation that money changes hands.

'After being caught, they [project proponents] will later on file for an ECC,' he said.

The problem is, when there is a violation of environmental laws, they will likely pay for the consequences of their actions, Leones added.

Poor monitoring

LEONES admitted there was leniency on the part of the DENR-EMB, particularly the DENR-EMB regional offices, in implementing the EIS System in relation to the ECC requirement.

Leones said concerned DENR regional officials are likely to face criminal and administrative charges in Boracay. These are for allowing business establishments to be built without ECCs and for some with ECCs but undertook construction on timberlands or wetlands. He said a DENR regional official would be in trouble if there was a violation and the regional office failed to issue a notice of violation. Also, if the office failed to order the company to stop the project or do corrective measure if the establishment is already constructed.

'Definitely, heads will roll and charges will be filed,' he said.

Some officials of the DENR regional offices have been subjected to internal investigation and some were relieved and transferred to other areas, quietly, for irregularity involving granting of ECCs whenever a complaint is filed with the DENR Central Office, according to a person privy to the matter.

Law enforcement

SANS citing specific cases, Leones said the DENR had issued numerous notices and show-cause orders before.

Many of these have been resolved or addressed, according to him. He added some of the project proponents were slapped with fines for violations of the terms of conditions of ECCs or relevant environmental laws such as the Clean Water Act, the Clean Air Act, the Ecological Solid Waste Management Act and the Toxic and Hazardous Waste Act.

Leones believes the DENR has enough people to implement the Philippine EIS System.

'In Boracay, we have 160 people now working full time,' he said, referring to teams conducting resort-to-resort inspections from different regions in the country.

Leones said even before the Duterte administration, the DENR had issued numerous notices of violations, including some of the establishments on Boracay Island.

But he admitted that the DENR and the government, in general, fell short of enforcing environmental laws.

'We have the laws, but the problem is enforcement.'

In case of violation of environmental laws such as the Clean Water Act, the Clean Air Act, the Toxic and Hazardous Act, or the Solid Waste Management Act, cases are elevated to the Pollution Adjudication Board (PAB). The PAB determines the exact amount of fine that violators may be fined under these laws.

Crackdown, culprit

LEONES claims the rampant violation of ECCs and various environmental laws is now being addressed by the DENR. 'We are starting with tourism destinations,' he said.

'Now, even if they [business establishments] agree to comply with the ECC, because they already violated the law, their establishments are subject for demolition; especially those built on forestlands and wetlands,' he said.

The DENR is cracking down on other tourism areas to prevent another Boracay, Leones said. The move will address environmental problems while they are still manageable, he added.

Leones said, however, the DENR is not the lone culprit in this fiasco and pointed to other government agencies as contributors to the environmental ills plaguing Boracay.

He said the local government unit should have done its part in enforcing the law.

The tourism department, he added, should have tightened the issuance of accreditation for hotels, resorts and other tourism destinations by ensuring that the construction has fully complied with the requirements under the Philippine EIS System, particularly the required ECC.

According to Leones, Duterte had already ordered Cimatu to go after corrupt officials.

'So we will file charges and, definitely, heads will roll.'

****

COMPANIES that failed to meet the terms and conditions of their ECCs according to former DENR Secretary Regina Lopez:

United Paragon Mining Corp. (Longos Mining Project in Sitio Longos, Paracale, Camarines Norte)

Ipilan Nickel Corp. (Ipilan Nickel Project in barangays Ipilan, Mambalot, Maasin and Calasaguera in Brooke's Point, Palawan)

Core Copper-Gold Corp. (Lupon Mining Project in Marayag and Calapagan, Lopon, Davao Oriental)

Lebach Mining Corp. (Nickel Deposit Mining Project in Barangay Ipilan, Brooke's Point, Palawan)

PROJECTS issued show-cause orders on pain of losing ECCs during the tour of duty of Secretary Lopez:

SMTC Chromite Mining and Trading Project, Barangay Luban, Mati, Davao Oriental (Sinophil Mining and Trading Corp.)

Consolidation of quarry projects, Kiwalan and Dalipuga, Ilaigan City, Lanao del Norte (Mindanao Portland Cement Corp./LaFarge)

Iron-ore pelletizing plant project, Katipunan Villanueva, Misamis Oriental (Philippine Sinter Corp.)

Proposed limestone, pozzolan and associated minerals quarry project, Pinamungajan, Cebu (Century Peak Corp.)

Cement plant and power plant project, Barangay Sacsac, Pinamungajan, Cebu (Century Peak Corp.)

Bulalacao coal mining project, Cambunag Bulalacao in Mindoro Oriental (Filipinas Systems Inc.)

Iron ore mining, Dona Remedios Trinidad, Bulacan (Ore Asia Mining and Development Corp.)

Sacobia Sun Valley Resort, Clark Special Economic Zone in Mabalacat, Pampanga (Donggwang Clark Corp.)

Smelting plant project, San Isidro, San Simon, Pampanga (Wan Chiong Steel Corp.)

Wellex Area II mining project, Loreto, Dinagat Island Province (Wellex Mining Corp.)

Barobo alluvial gold-mining project, Barobo, Surigao del Sur (PhiGold Metallic Ore Inc.)

Veneer manufacturing expansion, Canayugan Bayugan, Agusan del Sur (Hantex Manufacturing Corp.)
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Publication:Business Mirror (Makati City, Philippines)
Geographic Code:9PHIL
Date:Mar 14, 2018
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