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SEMIRARA MINING CORP.
Through its Manager. George San Pedro
Complaint
-

VERSUS –

OMB-V-C-09-0135-E
OMB-V-A-09-0146-E

BIENVENIDO L. LIPAYON
OIC, Regional Director
Environmental Management Bureau (EMB)
Dept. of Environment & Natural Resources (DENR)
Region VI, Iloilo City
Respondent
x-------------------------------------------------x
COUNTER AFFIDAVIT
COMES NOW the Respondent and unto this Honorable Court, after being duly
sworn, depose and state:
1 - That I am BIENVENIDO L. LIPAYON, of legal age, married, Filipino, and with
residence and postal address at Opal Street, Tagum City, Davao del Norte;
2 - That I am a holder of permanent position as Chief, Environmental
Management Specialist, EMB XI, with a salary grade of Grade 24;
3 - That I am presently assigned at the Office of the Regional Director,
Environmental Management Bureau, Region XI, Davao City with no specific
assignment, responsibilities and accountabilities;
4 - That my last designation prior to my transfer to my new assignment as abovestated was OIC, Regional Director, EMB-DENR VI;
5 - That I am the respondent in the above-entitled criminal and administrative
investigation.
Am I administratively and Criminally Liable when I acted with due prudence,
good faith, according to law, rules and regulations and with presumption, if
not, actual regularity as an environmental regulator?

“To do injustice is more disgraceful than to suffer it.”

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PLATO
6 - That I vehemently deny the allegations of private plaintiff – Semirara
Mining Corporation (SMC for short) that there is gross misconduct committed
and for Violation of Sections (e) of the Anti-Graft and Corrupt Practices Act
(RA 3019).
7 - That Item No. I of the complaint: “I am the Resident Manager of
Complainant, Semirara Mining Corporation (SMC), a corporation duly organized and
existing by virtue of Philippine Laws, with principal office at the 2 nd Floor DNCI Plaza
Building, 2281 Pasong Tamo Ext., Makati City.”
The allegations is denied because I have no idea to form a judgement or
conclusion.
8 - That Item No. 2 of the complaint: “Respondent is presently incumbent
Officer-in-Charge (OIC) Regional Director of the Environmental Management Bureau
(EMB) of the Department of Environment and Natural Resources (DENR) Region VI
with address at Pepita Aquino Avenue, Ilioilo City, where he may be served with
processes of this Honorable Office.”
The allegation is denied and the truth is that through DENR Special Order No.
2009-400 dated May 12, 2009, I am now assigned at the Office of the Regional Director,
EMB, Region XI, Davao City without specific assignment, accountabilities and
responsibilities. Annex-1.
9 - That Item No. 3 of the complaint: “On 07 April 2000, a Memorandum of
Agreement was executed between the DENR Secretary and SMC under which a Multipartite Monitoring team (MMT), an environmental Monitoring Fund (EMF) and
Environmental Guarantee fund (EGF) were established as a condition for the
Environmental Compliance Certificate (ECC) issued to SMC for the operation of its
Panian coal mines in Semirara Island, Antique.
The allegation is accepted subject to submission of original copy or certified
true copy.

10 - That Item No. 4 of the complaint: “The MMT monitors compliance by SMC
of the conditions set in the ECC for the operation of the Panian coal mines and
administers the two (2) funds (EMF and EGF) put up by SCM. It is governed by an

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Executive Management Committee (EXCOM) chaired by the Provincial Environment
and Natural Resources of region VI (PENRO).”
The allegation is denied and the truth is that the MMT does not administer the
funds. Based on our records in EMB-6, no work and financial plan was approved by the
Chairman of the EXECOM which is a condition in the MOA. Item 2 – The Environmental
Monitoring Fund, 2.1 – The actual amount to be allocated shall be determined on the
basis of the Annual Monitoring Work and Financial Plan referred to in Section 1.6.1
above, as approved by the MMT. This is a annual undertaking.
In the MOA it states in Item 3 – The Environmental Guarantee Fund, 3.2 –
Establishment of the EGF Committee – An EGF Committee shall be established to
manage the EGF. The Committee shall be composed of the following:
-DENR – Region 6 Regional Executive Director as Chairperson
-SCC representative as Vice Chairperson
-Antique Provincial representative
-Caluya Municipality representative
-Barangay Chairperson of Barangay Semirara
The EGF Committee has not been functioning ever since August 16, 2004 to
date

while I was OIC, Regional Director. No meetings to solve the present complaints

of damages to livelihood. The complainant, Mr. Gracito Pagia have been complaining of
damages ever since 2000 and no response of the Committee have been made. (Based
on the Joint Inspection Report dated April 16-17, 2009 of EMB-6 and CENRO Culasi.)
The EGF Committee is Chaired by the Regional Executive Director not by the
Provincial Environment and Natural Resources Officer (PENRO) as alleged by SMC in
their complaint-affidavit.
Hence, a violation of the MOA.

11 - That Item No.5 of the complaint: “The MMT, through the PENRO, has
been functioning well in its monitoring activities and has a good working relations with
SMC since its establishment in 2000.”

it restate the guidelines of the MOA. under P. At Sitio Bigo the siltation is at the offshore sandbar and at the Sitio Suha the silted area is approximately 3-4 hectares which were converted to a private property with tax declaration and massive destruction of mangroves and other plant species not withstanding shells and crustaceans. a pro-formatted MOA in annex 3-4. until now there is a status quo and did not harm SMC nor it was ridiculed with our action which is based on legal grounds. 1586 or the Philippine MMT was changed including the membership. according to them. (Report of the Joint Inspection Team dated April 16-17. the Manual seeks to revise the MOA and the MMT is efficient. They failed also in reporting to EMB-6 and resolving cases against SMC on the alleged siltation and pollution of Sitio Bigo and Sitio Suha. states. Under the Revised Procedural Manual of DAO 2003-30. Caluya.” The allegation is denied and the truth is that EMB-6/Respondent’s basis is the Revised Procedural Manual for Department Administrative Order No. Semirara Island. the Implementing rules and Regulations of Malacanang Administrative Order No. the DENR-EMB Regional Director shall serve as the MMT Chair. Hence. “as a general rule. however. EMB/Respondent acknowledged the letter of SMC through Counsel. on the proposed revision of the MOA and submission of the proposed Manual of Operations. the provisions of the MOA on the establishment of the MMT may specify procedures for the selection of the MMT Chair. Barangay Alegria.D. A draft of the proposed amendment and Manual of Operations for MMTs was sent to SMC for the latter’s conformity. that we will clarify the issues raised. The selection of non-DENR persons as Chair of the MMT shall require prior concurrence of the DENR-EMB RD concerned. Antique. 2008. Semirara Island. 42 dated November 2.” SMC did not agree based on their letter dated June 26.That Item No. 2003-30. EMB/Respondent is just following . because. Section B.6 of the complaint: :In 2007. The MMT is so remiss of their duties and responsibilities. 2008. 2009). Antique.4 The allegation is denied and the truth is that the MMT is not efficient nor effective in solving and addressing complaints based on the alleged complaint of some residents of Sitio Bigo. Hence. On July 8. Caluya. the respondent wanted to amend the MOA by replacing the PENRO with himself as Chair of the EXCOM. another violation of the MOA. 12 . In some cases. 2002 issued by the President. Others mine for emphasis. the MMT was already been organized.

Under this revised manual. 14 . Relative to this. may we advise you to use the new format which will result to a more comprehensive monitoring report.” The allegation is denied and the truth is that our letter on April 10. Monitoring should include the compliance to the EMP and the actual measures being implemented based on the actual impacts of the project. What then was my violation if SMC did not conform to our proposal and the status quo is in effect? Nothing at all! 13 . it is the DENR Regional Executive Director or the EMB Central Office Director or the Secretary himself. Our sole purpose was to improve the operations of the MMT and in consonance to new policies of the DENR which is being implemented nationwide.D. 2008 saying that the existing leadership and set-up of the MMT are functioning well and could not be changed by the respondent as the same were installed by the DENR Secretary.That Item No. 1586. an updated format of compliance monitoring is included.That Item No. I am not the signatory of MOAs.5 DENR policies not through our whims and caprices. our acknowledgement on the letter of SMC is based on the rules of the Ombudsman. We also informed SMC and it states: “May we inform you that we are now implementing the Revised Procedural Manual of DAO 03-30. None at all! However. . 7 of the complaint: “SMC ignored the proposal at first but respondent was insistent and reiterated SMC’s conformity to the new set-up. We did not commit administrative and/or criminal liabilities when we are just following new policies and reiterated our letter on July 13. the implementing rules and regulations of P. 2007. 2008 was an acknowledgement of the Compliance Monitoring Report for SMC. 2007 because SMC did not care to answer said letter. 8 of the complaint: “SMC put its foot down on respondent’s proposal in a letter dated June 26. A MOA is not unmovable thing that it cannot be revised or amended to suit new policies of the DENR. if there are any to be installed or revised or amended.” The allegation is denied and the truth is that SMC showed its arrogance by not answering EMB-6/Respondent’s letter dated July 13.

coming from some residents of Sitio Bigo. respondent sent SMC a notice of alleged Violation in the area emanating from SMC’s coal washing plant. 2008. Province of Antique. 16 . 2008 from some residents in Barangay Bigo. “On December 12. We have called them for a conference since 2008 to iron out and explain to them new procedures. none at all! 15 . Jose L. .” The allegation is denied and the truth is that: On December 3.That item No. 9 of the complaint. SMC is just imagining things and clearly assuming even putting words that would create anger and hatred. EMB-DENR. Alegria Antique. and other matters and SMC did not attend any. 10 of the complaint. Municipality of Caluya. harassment and vexation. Jr. They are so ignorant of the changes in policies of the DENR and Malacañang. EMB-VI did not stop the present MMT from doing its functions. 2008. Annex 2. It is very clear that the intention of SMC is not to comply with the new requirements with the new policies. Our actions were not based on our whims and caprices but based on changes of policies that we have to implement and are within the regulatory powers delegated by law.6 But SMC is showing its arrogance by not complying with new sets of procedures and policies. region VI received a complaint addressed to the Hon. However. In our letter of July 8.That item no. Barangay Alegria. exaggerating to make a case against me (respondent) so that I will bow to their wishes due to their intimidation. What violation and damage did we make to SMC? Again. The DENRPENRO is still the head of the MMT. 2008 saying that the issues raised by SMC will be clarified in due time.” The allegation is denied and that truth is that SMC is just making up things. “SMC’s adverse reaction received a curt reply from the respondent in a letter dated July 8. acting on complaint dated September 6. 2008 to SMC they called it a curt reply when in fact it is a requirement of the Ombudsman to reply within a mandatory timeframe of letters received by the Office. SMC has not received any clarification up to this time. Atienza. we did not insist and the same set up is still being followed by SMC.

Immediate transfer or properly maintain the coal washing plant. Any government regulator will immediately act on the complaint as this is a high profile complaint sent to high profile political personalities and offices. its Implementing Rules and regulations and the Revised Procedural Manual for DAO No. There livelihood was affected. The complaint of some residents of Sitio. To provide alternative livelihood to those who are affected. 1586.4 – Adminsitrative Investigation.7 The complaint was on the coal washing plant of SMC which discharges black silt wherein hectares of mangroves and seagrasses are covered with said black silt.0 – Procedural requirements of the EIA process. Barangay Alegra. Senate president Juan Ponce Enrile. Antique to her Excellency Gloria Macapagal-Arroyo. 1586? . Barangay Alegria. To have a program to rehabilitate the area affected. the Provincial Board of Antique passed Resolution No. 2. Under item No.D. EMB-VI/Respondent even directs its staff to investigate complaints called on by phone or published in media outlets. 1. Municipality of Caluya. To pay for compensation of damages. 1586. 2. Province of Antique was given due course by EMB-VI because it is actionable under P. DENR-EMB Office concerned shall verify if the complaint (or report) is within the purview of P. 2008. On November 20. 301-2008 favorably endorsing the petition of the residents of Sitio Bigo. 2. The complainants are requesting the following.5 – Handling of complaints or Adverse Monitoring Findings.0. Caluya. 1. 3. Annex 3. Complaint (or report) is actionable under P. and 4.D. 1. House Speaker Prospero Nograles and Secretary Lito Atienza of the DENR for information and reference. 30 series of 2003.1. 2. Its siltation pond had long not been maintained.D. the following steps are observed: Scenario 1: Discovery of alleged violation from complaints and non-monitoring sources.

within 72 hours DENR-EMB send proponent (SMC) a Notice of Alleged Violation (NAV) and request for an official reply as to why the Proponent should not be penalized. 46 and 48 which deals on proper measures to mitigate siltation and contamination of the nearby waterbody.1a Case deemed submitted for decision. or government entities/LGUs with direct mandate on the complaint. 3. or may call for technical conference to clarify issues. Antique on the alleged black silt emanating from the coal washing plant. EMB-VI/Respondent endorsed a Complete Staff Work to the Secretary Department of Energy and Bureau of Fisheries and Aquatic Resources.2. 1.2a If yes. . Antique.2b EMB Director/RD refers complaint to Pollution Adjudication Board (PAB). Proponent responds in 7 days.b. Caluya. Caluya.8 1.0. 4. 3. Our comment: SMC responded to the Notice of Alleged Violation in an undated letter regarding the alleged complaint from the residents of Barangay Alegria . 1999) specifically conditions Nos. 9805-009-302 dated August 12. and to the Pollution Adjudication Board. Our comment: EMB-6/Respondent called for technical conference on January 30. Barangay Alegria. Our comment: EMB-VI/Respondent issued a Notice of Alleged Violation on December 12. Our comment: Based on step 1. 2008 to SMC on the alleged black silt emanating from the coal washing plant that flows out directly to the sea. The alleged siltation and contamination of any waterbody constitute a violation of the conditions of the ECC issued in your favor (ECC No. 2009 regarding the complaint of some residents at Sitio Bigo.

they should have reported the siltation caused by typhoons there and then. dust. “All appropriate mitigating measures shall be instituted to minimize the generation of noise. SMC explained that the alleged siltation.D. a copy of SMC’s letter dated January 27.9 3. siltation and contamination of any water body throughout the project operation. that the complaints was already discussed by the MMT in its September 2008 meeting at which SMC disclosed that remedial and mitigating measures have been installed and that the matter had already been resolved with the conformity of the complainants. If SMC has corporate social responsibility. emission and effluent generated shall conform with DENR Standard. implementing rules and regulations and Procedural Manual. It is based on the revised procedural manual of DAO 2003-30. Hence.2 EMB holds a technical conference: whether Proponent attends or not. Even the dead and dying mangroves were not reported to DENR. 3.3 Notice of Violation (NOV) and Order of Payment issued by EMB. The ECC condition No. in violation of P. there is no iota of gross misconduct no traces of hostility. if at all. A very lame excuse at its worst. knows by heart the conditions of its ECC and if SMC knows the different laws. SMC can not claim that force majeure or typhoons was the cause of siltation. Our comment: EMB-6/Respondent issued a Notice of Violation on February 17. 2009. noise level. 2009 and Order of Fine on even date after issuance of Notice of Alleged Violation was issued on December 12.typhoons. 2009. 11 of the complaint: “In reply. 17 . 4 says.” The allegation is denied and the truth is that SMC’s position that the siltation was caused by force majeure is to say the least a blatant lie. 705 or the Forestry Law. case is deemed submitted. 2008 and SMC’s answer on an undated letter and technical conference on January 30.That item No.” . was in 2006 yet caused by force majeure . but in the interest of fair play after giving SMC a day in court. nor retaliation to SMC’s refusal to accede to respondent’s inordinate interest to control the MMT and its funds.

The firm’s effluent exceeded the standards of TSS when compared to DENR Standard of 150 mg/l under class “D” (Suha creek is unclassified water bodies) water pursuant to Table 2b of DAO 90-35 “Revised Effluent Regulation of 1990. Virgilio F.10 Based on the Inspection conducted on April 16-17. Region VI. 48 says. and Amending the effluent Regulations of 1982. 46 says. samples taken 15 meters downstream of the junction have a value of 292 mg/l. installation of silts curtains and siltation ponds. coal washing plant. ECC Condition No. On the other hand.” SMC did not secure Authority to Construct sea barriers and installation of silt curtains and siltation ponds ECC conditions No. SMC violated this provisions of the ECC. For. an Authority to Construct/Permit to Operate shall be secured from the DENR. Inspection Report conducted by Engr. Maguad of EMB-6 and CENRO Culasi. Storage areas and the entire mining premises and parallel access roads to minimize transport of sediments from the earthwork areas to the river system and consequently to the sea. while 150 to 200 meters from the mouth has a value of 166 mg/l. we issued Notice of Violation and Order to pay fine. Fabromero. The ECC is attached as Annex 4.” Again. “Adequate drainage system shall be provided for the stockpiles. in terms of TSS. Louise L. Garingalao. the sample taken at the effluent showed that the Total Suspended Solids (TSS) had a value of 220 milligrams per liter (mg/l). 2009. Laud and Josephine C. Engr Leah S. “Prior to construction of the sea barrier. . hence.

Lavega described the problem of siltation and its effect to the mangroves. Annex 5. 1586 and R.000. . replanting of sea grass and stop siltation. Thus SMC’s allegation that the siltation was caused by force majeure (typhoons) and had already been resolved with the conformity of the complainants is a very weak alibi. Mr. Barreto of EMB Regional Office read the minutes of the meeting of the Multi-Partite Monitoring Team (MMT) 3rd Quarter 2008 monitoring for SMC held on September 24-26. 2008.00 pesos per family  The residents agree to accept the 2 million “pangulong” fishing project instead of the P 120. seaweed planting and livelihood of the residents of Sitio Bigo. 9275 or the Philippine Clean Water Act.  Instead of “pangulong” project as their livelihood they want cold cash as payment of their loss of income in the amount of P120. SMC is constructing a deep sea fishing outfit (pangulong) worth two (2) million pesos intended for the affected fisherman. 2009.11 This is a hard evidence. Josephine Maguad assigned in EMB. replacement of dead trees. The salient points are as follows:  Had a dialogue with Sitio Bigo residents. During the technical conference on January 30. 2009.  As permanent solution to the prevention of siltation. to transfer the whole coal washing plant from Suha to Panian.000. That is why the case was endorsed to the Pollution Adjudication Board on February 17. then kagawad Cesar dela Torre and Barangay Captain Ronald M. They want that the siltation from the coal washing plant be stopped immediately. Rogelio P.D.00 each per family. DENR-PENRO Antique submitted photographs showing some portion of the affected areas. The problem is now spreading to other sitios and Barangay proper.A. They presented their loss of income due to siltation and demanded payment of damages due to opportunity loss. that SMC violated P. the complaint was read by the Chairman. Engr.  SMC presented their side and as payment of opportunity loss.

Barangay Alegria at the sand dunes with geographic coordinates of 12 02. 2009.That item No. 4. (b) there was no damage to the mangroves or to the seagrasses and that seaweed plantations in the area are healthy and of good quality. Section 27 prohibited Acts – The following acts are hereby prohibited: (a) Discharging. . 46 and 48 and yet did not try to contain or mitigate the siltation thereby polluting the body of water (Suha Creek) until it reached into the sea.” The allegation is denied and the truth is that the ocular inspection of Magtoto was so limited in the part of Sitio Bigo that has no siltation and no pollution problem. either by tide action or by storm. Barangay Alegria. inland or seawater is a violation under the provisions of section 27 of R. Barangay Semirara and at the sundunes of Sitio Bigo. OIC-CENRO (Community Environment and Natural resources Officer) Freddie Magtoto (Magtoto for short) conducted an ocular inspection in Barangay Bigo to determine the veracity of the alleged siltation in the area subject of the complaint. Polluting any body of water. floods or otherwise. This is still part of Sitio Bigo. It was further away from the shoreline of Sitio Bigo. SMC cannot claim force majeure as the cause of siltation in the margins of Sitio Suja.209’ East. the DENR VI. whether it is. 18 . which could cause water pollution or impede natural flow in the water body.12 They were warned under ECC conditions No. 12 of the complaint: “Meanwhile on February 8. depositing or causing to be deposited materials of any kind directly or indirectly into the water bodies or along the margins of any surface water where the same shall be liable to be washed into such surface water. He found out that: (a) there was no siltation in the mangrove forests coming from SMC’s mining operations.A.218’ North and 121021. 9275 of the Philippine Cleam Water Act which states. He (Magtoto) did not initiate and go further to where the siltation of coal silts where deposited.

that Semirara Mining Corporation has started their mining activities. For. Sitio Suja is a nearby. But if he closed his eyes and ears and favor SMC then the report is biased in favor of SMC. The DENR-PENRO Antique. Magtoto has no iniatiative to look for other means. Magtoto is a detailed DENR-CENRO Officer at Semirara Island. Timie O. Furthermore. pictorials and the total area. Annex 6. who is alone detailed in the island. Engr. and he should know the ins and outs of Semirara Island. The justification of Magtoto that SCC was the one who operated the coal washing plant prior the use of SMC is misplaced because if you bought the rights and interest of SCC you have also acquired the pollution and siltation caused by SCC.13 Magtoto during his inspection was with Mr. 2008 and during the technical conference on January 30. This is in line with the agreement during the 4 th quarter MMT meeting last December 5-7. it was the same washing plant and siltation ponds of then SCC a government owned and controlled corp. 1999. Magtoto justified that it was only August 12. area covered. issued the ECC. maps. if not just a boundary of Sitio Bigo. Sardinia issued a Memorandum dated January 30. even though. Office at Sitio Bigo to verify the complaints. 2009 of inventory to include the number of affected mangrove species. he knows where the bulk of the siltation and water pollution was. Bienes. But he is the guardian of environment and natural resources being an officer of DENR-CENRO. because that was the time that secretary Antonio H. Janisto Diaz of SMC’s Environmental Unit and Mr. Victor A. But how can he. He (Magtoto) was directed to submit a report on or before February 16. He is in a pitiable situation. Consunji. He failed the test of resiliency to pressure. Vicente A. 2009 to Magtoto directed him to coordinate with the Field operation of SMC regarding the conduct of inventory of mangrove species damaged/affected by siltation. SMC before their takeover must have conducted “due diligence” study of all aspects of operations of SCC. . and yet he did not see the dead and dying mangroves with heavy siltation. that were utilized by SMC when they started their mining activity of Panian Coal Mine. Head of the Community Relations. 2009. President of Semirara Mining Corporation. Cerilles.

DENR-CENRO.” Annex 7. during the conduct of the First Quarter MMT activity for CY 2009 last March 28-30. Freddie Magtoto. CENR Officer. 2009. Caluya.” Magtoto was instructed to submit justification/explanations on those affected Mangroves Species caused by typhoon “Frank”. the OIC. the area was fenced with barbed wire and planted with coconut and other mangroves species with small billboard on it as “Private Property. The gist of the Memorandum of PENRO Sardinia was the memorandum submitted to PENRO dated February 20. Api-Api (Avicenia Officinalis) and 115 Tabou Saplings (Lumnitzera littoral) and 10 saplings of Piapi (Avecenna Atba) were damaged/affected by siltation. attention: Farm Supervisor Freddie Magtoto with subject: Justification/Explaination on the Dead mangroves in sitio Suja. Culasi. 2009 regarding inventory which stated: “sixty (60) mangroves. Antique issued a memorandum to Mr. 2009. Antique due to siltation caused by Typhoon “Frank” considered as “Force Majeure. Culasi. Semirara. 2009. During the conduct of 3rd Quarter MMT activity last September 24-26. the team found out that those dead mangrove species are no longer in the area. 2009. 2008. mostly Bungalan (Avicenia marina). CENR Officer. CENR Officer. . thru the OIC. Antique. However. Caluya.14 Another Memorandum was issued by PENRO Sardinia to the OIC. Instead. Antique dated March 31. Semirara. On April 13. Culasi. Magtoto sent a Memorandum to the PENR Officer. Antique that was affected by siltation caused by typhoon “Frank” wherein the lenticels of these mangroves were covered by siltation that resulted to suffocation and death of mangroves. CENRO. requiring to submit report your justification/explanations on the affected areas caused by Typhoon “Frank”. Antique with subject: compliance to PENRO Memorandum Order dated March 31. the MMT inspected the dead mangroves at Sitio Suja. Annex 8.

storage areas and the entire mining premises to minimize transport of sediments from the earthwork areas to the river system and consequently to the sea. . Our Comment: SMC was directed through the issuance of the Environmental Compliance Certificate (ECC) to institute appropriate mitigating measures on siltation and contamination of any water body.  Aside from the coal blending stockpiled.  Said mountain/stockpiled of waste eroded/collapsed directly into the sea because of heavy rains and strong waves brought by super typhoon senyang sometime December 16. directly into the shoreline of Suja.15 His justification/explanation were as follows:  That the former SCC from 1987-1998. there was no strict implementation of mining and/or environmental laws because the Provision of P. coal washing plant. an Authority to Construct/Permit to Operate shall be secured. DAO 96-37 was only implemented on January 1997.D.  From 1980-1996.  The siltation and contamination of Suja and Dapdap due to force majeure or natural calamity shall be rehabilitated by SMC. installation of silt curtains and siltation ponds. the mountain of coal waste was the main source/contributor of the siltation in Suha and dapdap.  Through the years of continuous dumping. the coal waste has become a mountain. 1586 of the Philippine EIS System Rules and regulations. construct sea barriers. adequate drainage system shall be provided for the stockpiles. 2006 which was followed by tropical depression Caloy and typhoon Frank. their coal ash/coal waste was dump near Suja and Dapdap.

DENR. What a show of naked power! But I am not impressed of how they handled the environment problems. 19 . Bayong Creek is silted with Coal Waste.That Item No. Magtoto’s report was not yet officially received by EMB-6/Respondent when we issued the Notice of Violation.16 These ECC conditions are ECC Nos. “It was noted that no diversion canal nor any mitigating measures was provided along the embankment of Bayong creek to prevent the erosion from waste mound to be carried over by water towards the emergency pond during heavy downpour. the implementing rules and regulations of Malacanang Admistrative Order No 42. 46 and 48. 2009. . PENRO Officer.” This justifies our issuance of the Notice of Violation and Order of Fine. SMC is just concocting so many false allegations to cover up its misdeeds and disregard to the problems of siltation.A. That is why EMB- 6/Respondent issued a Notice of Violation and Order of Fine for violating these ECC conditions. including filing administrative and criminal cases to respondent so that they can give a strong signal to regulatory agencies and its officers that anybody who cross their way will suffer the same fate as myself. there was no blatant disregard of Magtoto’s report if SMC is prudent enough in its accusation. In the Joint Inspection Report Item 4 it states. 13 of the complaint: “On February 17. Also. the respondent issued a Notice of Violation finding SMC liable for alleged violation of its ECC on account of the “black silt allegedly from SCM’s coal washing plant that flowed directly to the sea. they are liable under R. 1586 or the EIS Systems Law. Our Notice of Violation was issued on 17 February. 9275 or the Philippine Clean Water Act which prohibits depositing of silt into bodies of water. San Jose. Our actions are all based on the Revised Procedural Manual of DAO 2003-30. in blatant disregard of the above findings of the CENRO. 2009. As discussed by the MMT on February 26-28. 4. under P.” This allegation is denied and the truth is. Antique.D. Magtoto’s report was dated 16 February 2009 to the OIC.

We should have scheduled a technical conference to discuss. the Green Forum and its experts from UP Visayas have gone to Semirara Island to inspect the siltation as complained of by some residents of Sitio Bigo. the MMT report and other reports that will be usefull and could lead to the resolution of the case at hand. 14 of the complaint: “On March 9. EMB/Respondent informed SMC that their Motion for Reconsideration will be resolved after the monitoring and validation of all reports. 1585 or the EIS Systems Law. the new Regional Director of EMB-6 could do that in order to resolve the case. 15 of the complaint: “”Respondent’s statement in his letter reply that he will decide SMC’s Motion for Reconsideration on the basis of the MMT report was false and issued in evident bad faith because as early as February 17. Antique to resolve peaceably the raging issue on siltation in Semirara Island. We complied with this requirement.17 20 . 2009-400 effective May 12. 20 . Barangay Alegria. we were not able to call for a technical conference. . Davao City through Special Order No. In the resolution of the environmental cases denominated as DENR Case No. such as.D. EMB6/Respondent were collating all reports coming in from all sources. 2009. Culasi. Magtoto’s report. But. 2009. motion for reconsideration. 0609-ANT-9999-004 in violation of P. the Joint Inspection Report of EMB-6 and CENRO. However. 2009 that we will hold the technical conference in her office in San Jose. letters and communications including Motions for Reconsiderations shall be acknowledged within a timeframe.” This allegation is denied and the truth is that as a requirement of the Ombudsman. Perez. The media.That Item No. reacting to SMC’s Motion for Reconsideration. testimonies and evidences to resolve the case prior coming up with an intelligent and sound decision. respondent replied that the motion will be resolved after validation of all MMT monitoring reports. Antique. Governor of Antique Province when we met in Cebu City while attending the “One Visayas Clinate Change Summit” on May 11-12.That Item No. because I was reassigned to EMB-XI. I informed the Governor Salvacion Z. 2009.

that is why we were not able to able to decide on SMC’s Motion for Reconsideration.” . That Item No 16 of the complaint: “On March 28. Davao City. Hence. The new Regional Director could call for technical conference prior coming up with a resolution of the case. 2009. that I was reassigned to EMB-XI. a quasi-judicial court resolves cases under R. being hounded with the siltation problem.” This allegation is denied and the truth is that SMC is just hallucinating of bad things.A.were the complaints and testimonies of participants in the technical conference held on January 30. The PAB. the MMT has finally put the issue to rest in its report confirming that there is in fact no siltation in Barangay Bigo as claimed and that the allegations in the petition of the Bigo residents were all “falsification. Prohibited Acts which states: “h) Undertaking activities or development and expansion of projects Or operating wastewater/sewerage facilities in violation of P. The Clean Water Act has relationship with P.D. their is no false and evident bad faith on my part. 9275 or the Philippine Water Act. Our basis also. Our basis of the endorsement to the Pollution Adjudication Board (PAB) was after due process in the Regional level had been completed with a single purpose not to add siltation and pollution to Suha Creek and shoreline of Sitio Suha and other parts of the sea.18 respondent has already prejudged SMC’s culpability when he recommended to the Pollution Adjudication Board (PAB) closure of SMC’s coal washing plant. Maybe they have awakened a morning with bad dreams.D. 1586 or the EIS Systems Law as it incorporates in Section 27. 1586 and its implementing rules and regulations.” As stated in the preceding Item No 14. 2009.

primary responsibility is lodged with the EMB Regional Offices who shall implement the Project Environmental Monitoring and Audit Prioritization Scheme. How can you come up with a sound and intelligent decision if you will just base the MMT’s report. (ii) EMB shall form composite teams composed of EIAMD and PCD personnel to Jointly evaluate the effectiveness of environmental management measures being implemented by the proponent. (iv) EMB does not in any way delegate its authority or devolve its monitoring functions to the MMT. implementing rules and regulations of Malacanang Administrative Order No. The EMB representative in the MMT shall only sign as witness in the Report so as not to pre-empt DENR-EMB deliberations and decisions on the MMT recommendations. We will again be subjected to law suit without hearing other sides of the issues. Item 2.19 This allegation is denied and the truth is that EMB/Respondent does not rely on the Report of the MMT as the means to an end of resolving environmental cases. The MMT reports shall be one of the bases of DENREMB actions without prejudice to their (DENR-EMB) undertaking a Validation of the events covered or leading to the issuance of the MMT Report. Under the Revised Procedural Manual of DAO 2003-30. (iii) To lessen redundancy in monitoring/sampling EMB shall prioritize the inclusion of EQD/PCD personnel in the activities of the MMT sectoral team or committee where the environmental stressors or impacts of the project fall within the Mandate of the sectoral environmental laws. C) EMB: “the EMB shall be primarily responsible for the over-all evaluation of the Proponent’s monitoring and the MMT validation. This is absurd if we will just hear the side of the MMT. 42 under P. 1586 or the EIS Systems Law.” (i) For each project issued an ECC. Validation and Evaluation/Audit Procedures. It is only one of the bases of our decision.D. SMC has no right to dictate EMB how to resolve this environmental case.3 Monitoring. 19) Roles and Responsibilities. no matter how powerful they are. .

All participants were given a day in court to explain their respective positions. 2009 MMT Report. 1. 2008. we issued a Notice of Alleged Violation on December 12. P. 17 of the complaint: “Up to this time.1586 or the Phil. Josephine Maguad of EMB Antique and Mr. Barangay Kagawad Ernesto de la Torre . Mr. The Notice and Order were issued without due process and in violation of the Provisions of the Rules and Regulations Implementing Implementing P. Jr.20 That Item No.D. MAO 42. the issue of black silt was brought to them after previous typhoon “Senyang” last December 2006 and other typhoons. Adm. Barangay Alegria. Region VI. 37-1996 as amended by DAO No. Janisto Diaz. Mayor Reynante Lim of Caluya. 2003-30. 1586. to the office of Congress and Secretary of DENR. Order (DAO) No. The DENR PENRO and CENRO in the Province of Antique and Municipality of Culasi respectively. the Office of the Senate President. Iloilo City.” This allegation is denied and the truth is that Respondent would like to comment on the issues of SMC’s Motion for Reconsideration dated 26 February 2009. Other participants who were present were the Barangay Captain of Barangay Alegria. among others. EMB/Respondent acted upon receipt of the complaint from some residents of Sitio Bigo. 2009 and they were represented by Mr. Semirar Island.D. respondent has not issued any resolution on SMC’s Motion for Reconsideration based on and despite his receipt of the March 28. Rogelio Barreto of EMB. SMC answered the Notice of Allegation Violation through a letter without a date informing EMB-DENR. a letter from the Province of Antique to the Office of the President. Antique. Ronald Lavega. EIS Systems Law. SMC informed EMB-DENR that they are already implementing mitigating measures. Based on the Revised Procedural Manual of DAO 2003-30. EMB/Respondent invited SMC to a technical conference on January 30. Pollution Control Officer.. Furthermore. Regional Office. Complete Staff Work is hereto attached as Annex . Engr. To refresh from preceding explainations.

inasmuch as SMC voluntarily conformed to the ECC conditions it is axiomatic that SMC should comply the same in good faith because their failure to do so will result to the imposition of corresponding sanctions/penalties.21 Then EMB/Respondent issued a Notice of Violation and Order of Fine on February 17.” Inasmuch. viz: “The essence of due process is simply an opportunity to be heard And a formal or trial-typed hearing is not at all times and in all instances essential. Damasco. . it is not necessary that it should be trial-typed proceeding. 2009. In administrative proceedings. they could not question that they were not afforded the right to due process. 2009. 246 SCRA 260. as SMC had participated actively in the technical conference called for this purpose. I could no longer issue a resolution to the case at bar or to SMC’s Motion for Reconsideration because I am no longer the OIC. The Supreme Court in the leading case of Navarro III vs. but commitments that should be followed in order to protect the environment. The essence of due process can be complied by giving SMC an opportunity to be heard. by the afore-cited factual antecedents and following the provisions of the Procedural Manual of DAO 2003-30. The embodied conditions in the ECC are not rhetorics. provides. Apparently. 2009. will be understood as lack of apathy of SMC towards the environment and should be penalized accordingly. SMC filed a Motion for Reconsideration on February 26. the case then during my watch was still on process. The non-compliance thereof. Besides. it can be gleaned and deduced that the office has given SMC to explain their side and accorded their right to due process. Their Motion for Reconsideration was acknowledged by EMB-6 on March 9. Regional Director of EMB-6. Their Motion is still pending for decision and will be decided after all reports had been properly discussed and deliberated. Moreover.

Mr. Melvin Purzuelo of Green Forum. 1586.” This allegation is denied and the truth is that based on the revised Procedural Manual of DAO 2003-30. Chief. PD 1586 – Administrative Investigation we can refer to any government agency that has a mandate with the operation of the project in relation to P. Nestor Burgos.” Like. 18 of the complaint: “ Respondent’s manifest bias and evident bad faith is further shown from his unfair publication on April 14. the MGB it is closely coordinating and working with EMB in all mining projects. 2009 in the Philippine Daily Inquirer (PDI) of his internal Memorandum to the PAB which publicly condemned SMC of polluting Semirara Island’s waters and mangroves with nary a word about MMT’s earlier findings on March 28.” The allegation is denied and the truth is that I was not the one who caused the publication nor authorized the publication in the Philippine Daily Inquirer (PDI) of our Memorandum to the PAB. there is no manifest bias and evident bad faith on my part. correspondent of PDI who caused the publication. implementing rules and regulations of MAO 42. That Item No. . not the Mines & Geo-Sciences Bureau (MGB) of the DENR. The government agency that regulates energy projects is the DOE. Samson N. Even other government agencies coordinates one another on inspections or other undertakings that could lead to a successful solution of environmental problems. 2009. SMC must understand that all government agencies has “common. Guillergan. The Memorandum I presume was given by Dr. 19 of the complaint: “Respondent’s unfair and oppressive conduct is likewise evident when he furnished even Department of Energy (DOE) Secretary Angelo Reyes who is not his superior a complete staff work (CSW) of SMC’s alleged improper mining operations in Semirara in an obvious attempt to besmirch or injure SMC’s standing before the said government agency. Pollution Control Management Specialist.22 That Item No. PDI has given SMC an equal space and coverage on April 19. The Memorandum is a public record and any interested party have access to it. Purzuelo might have given the Memorandum to Mr.D. EMB-6 to Mr.” Annex 19. 2009 completely belying said news report February 17. but differentiated responsibilities. The DOE should be even be represented in the MMT. DENR exec…. “ Coal Firm prepares suit vs. Hence. 2009 publication when they published an article entitled.

If it was our proposal to amend the MOA and create an Executive Committee (EXECOM) then this a misplaced and horrible assumption to control the funds. the New Bacolod (Silay) Airport Development Project in Silay City. Negros Occidental. That Item No. nothing more and nothing less! I do not know where they got the idea that I want to control the funds of MMT. the New Ilolio Airport Development Project (NIADP) in Iloilo City. Hence. We handled big projects.23 In fact DOE wrote us a letter dated 07 April 2009 regarding environmental problems in the case of North Negros Geothermal Project-Energy Development Corporation (NNGP-EDC) asking reports for their reference and appropriate actions. Annex10. it is a shallow reason for SMC to charge me of unfair and oppressive conduct by furnishing a copy of the complete staff work to DOE. The EMB Regional Director is the chairperson but the decision is thoroughly and properly discussed after the pros and . 20 in the complaint: “It is quite obvious that respondent’s hostility towards SMC was in retaliation for SMC’s refusal to accede to respondent’s inordinate interest to control the MMT and its funds. such as. the Iloilo Flood Control Project in Iloilo City and the NNGP-EDC Project in the Municipality of Murcia and Bago City. Even the Environmental Guarantee Fund (EGF) is also handled by a Third Party and the disbursement is through the EGF Committee. I acted as Chairperson. Expenditures are based on Work and Financial Plan which is approved by the Chairperson but had undergone discussion in the EXECOM. The one who handles the funds is a Fund Manager which is usually a Third Party where accounting and disbursement of the funds are made.” The allegation is denied and the truth is that SMC is just concocting a cocktail of lies in desperation to bend my will to protect and conserve the environment and natural resources. But it is my duty. Negros Occidental. but I did not control the funds because the EXECOM is like a collegial body that issues and agenda are thoroughly discussed and through consensus before a decision is made on money matters or any activity within the mandate of the EXECOM.

cruel and debased of proper bearing. if they are in difficult situation? There are so many factors that affect the shares of stocks to go down. Others is how the company manage itself. SMC’s business is coal mining which is vulnerable to economic and market forces not only in the Philippines. Britain and some European countries are experiencing difficulties in its economies and their stocks markets had plunged down to low end of the stock market index. Can SMC’s business be not affected? Why blame others for its woes. That Item No. the allegation of SMC that I am hostile towards them because I am interested to handle the funds is off-tangent. fair and equitable. but in a global context. including SMC. This is condemnable. If the EGF Committee needs assistance from experts in coming up with reasonable payment of damages. but most of all it is the economic and market forces. the payment of damages is fast. his manifest bias and bad faith has besmirched the refutation of and caused undue injury to SMC for which respondent should be held administratively and/criminally liable for gross misconduct and for violation of Section 3 (e) of the anti-Graft and Corrupt Practices Act (RA 3019). Japan.” The allegation is denied and the truth is that publicly-listed companies. That is why.24 cons and advantages and disadvantages had been weighed down. Mostly affected parties are satisfied. 21 in the complaint: “SMC is a publicly-listed company and its shares of stocks are actively traded in the Philippine Stock Exchanges. The United States of America’s economy had plunged into low which is equivalent to recession. Respondent’s oppressive. unfair and/or unreasonable conduct. China is also experiencing economic difficulties because of global economic downturn. . we request assistance from government agencies who are experts on the field. is subject to economic and market forces. Hence.

tribunal or quasi-judicial agency and if I should come to learn later of any such pending action or proceeding. “There is sufficiency in the world for man’s need but not for man’s greed. an administrative body had commenced proceeding of the environment case being complained of in the Ombudsman by him. poisoned all the rivers and fished out the seas. . In fact they paid a penalty to the PAB. The case was resolved by the EGF Committee and they willingly paid the damages and it was accepted by the farmers without questions. procedures and policies enunciated by the DENR and the Republic of the Philippines. but the best antidote is to comply with all environmental laws because you are not alone in this world. I shall report this fact to this Honorable Office within five (5) days from thereof. did not besmirched the refutation nor cause undue injury to SMC that I will be charged administratively and/or criminally for gross misconduct because I acted in accordance to the norms and requirements of the laws. EMB-DENR-6 had issued Notice of Alleged Violation and SMC answered said notice. Bacolod City. will we suddenly realize that we cannot eat money. rules. SMC should not be onion-skinned. Annex 11. a scourge of the modern world with irresponsible and greedy people. no such action or proceeding is pending before the court.” We are also reminded of a saying of an Indian Chief. 4 – “That I have not commenced any other action and/or proceeding involving the same or similar issues in any court. and to the best of my knowledge.25 SMC should not claim that they should be exempted in complying with environmental laws because they are publicly-listed company. EMB-6/Respondent. As Gandhi had said. but there are other people who suffers the burden of pollution. EDC a public listed company paid the damages that was caused to the farmers when they accidentally discharged their geothermal waste. Verification of SMC Item No. They are not immune nor exempted in complying environmental laws. a publicly-listed company was penalized by the PAB when they emitted ammonia into the atmosphere.” Hence. tribunal or quasi-judicial agency. “Only when we have cut all the trees. Even San Miguel Corporation. regulations.” SMC should realize that EMB-DENR.

EMB-DENR-6 had endorsed the water pollution case to the Pollution Adjudication Board (PAB). 2009. Results of the laboratory analyses on the samples collected showed the influent has a value of 1. Cauya. Wastewater sample was collected at the sump pit serving the washing plant before pumping the same to the ponds (lagoons) and the effluent coming out of the last pond. 2. The results showed that the firm’s effluent exceeded the Standard in terms of TSS when compared to standard value of 150mg/l under . It was observed that the washing plant was provided with existing 7 siltation ponds with additional of one (1) pond having a dimension of approximately 40 meters wide. SMC after they certified is guilty of forum-shopping. 2009 to determine the siltation problem as was complained by some residents of Sitio Bigo. Barangay Alegria. a sample was taken at the downstream of the confluence of Suha Creek and Bayong Creek and another sample was taken at the mangrove area before it emptied into the sea.204 mg/l in terms of TSS (Total Suspended Solids). 7 in terms of pH. No sample was taken at the upstream of Suha Creek considering that no flowing water was observed.26 EMB-DENR had called for a technical and they answered with a Motion for Reconsideration. Findings and observations: 1. The washing plant was not in operation due to trouble in the pump. 100 meters length and 2 meters depth. a quasi-judicial court. Pampanga on April 29. In their complaint-affidavit they were questioning why we have not came up to resolve the case. Antique. Likewise. The Joint Inspection Report By the EMB-6 and CENRO Culasi This Joint Inspection was conducted on April 16-17. The first pond of the seven ponds was observed full of silts and alleged by the PCO this will be desilted. Hence. Sample taken at the effluent showed that it has a TSS value of 220 mg/l with pH value of 8. The PAB had commenced the case when it heard said case in Clark Field.

Janisto diaz that they had been complaining since year 2000 and that they had asked the person in-charge of the company’s CSR for them to see the top management. The waste dump was observed at the northeastern side approximately 75 to 100 meters from the washing plant. Barangay Alegria. A site visit was conducted at Sitio Bigo.27 class “D” (Suha creek is unclassified water body) water pursuant to Table 2b of DAO 90-35 “Revised Effluent Regulation of 1990. It was likewise noted that there are two (2) mounds of coal waste which are both adjacent to the embankment of Bayong Creek and higher elevation that the washing plant. It was observed that hauling of the old waste was undertaken during inspection. According to the PCO.” Sample taken 15 meters downstream of the junction have a value of 292 mg/l while 150 to 200 meters from the mouth has a value of 166 mg/l in terms of TSS. 4. Gracito Pagia with the presence of SMC’s Pollution Control Officer Engr. 6. When asked about the company’s offer for a livelihood . Portion of the mound (new waste) has already been removed having a distance of approximately 3 meters along the embankment of Bayong Creek. 3. 5. They further alleged that the cause of the turbidity of the coastal area and the damaged of the mangroves comes from the washing plant as it is being operated 24 hours a day. Revising and Amending the Effluent Regulations of 1982. It was noted that no diversion canal nor any mitigation measure was provided along the embankment of Bayong Creek to prevent the erosion from the waste mound to be carried over by water towards the creek nor diversion canal to divert silt laden water towards the emergency pond during heavy downpour. Two (2) units emergency ponds were also noted constructed parallel to Bayong Creek which are used for emergency purposes. The clean coal stockpile area adjacent to and at the western side of the washing plant was observed provided with retaining wall made of concrete with a height approximately 1 meter and a length of more or less 30 meters. but nothing had happened. An interview with Mr. the mound which is located at the farthest distance are the waste from the operation of the previous company while the one that is nearer to the washing plant is the recent waste generated be the present generator (SMC).

Brgy. De la Torre together with Brgy. It appears that the subject area is covered by Tax Declaration Property lot number 015-0519 (replacement of Tax No. No Trespassing. Magtoto’s report dated April 22. What they are asking during the interview was for the company to stop the siltation in the area that affects their livelihood. De la Torre. taken pictures during the 3rd quarter MMT field visits in September 2008. however. alleged that the transfer of the washing plant as promised during the MMT will be done by the end of February 2009. H e also disclosed that there were a total of 48 households in So. Captain Lavega. A new site where the coal washing plant will be transferred is in Sitio Panian.0-7. . while the affected damaged mangrove species now converted to coconut plantation mixed with mangrove along the seashore contains 3. It was confirmed and verified on the ground that the same area is now transformed/converted into another land use (now) planted to coconut. Semirara. “This is a private. Brgy. Semirara.” Per record of DENR CENRO Field Office at Semirara. 2009. and the total number of coconut seedlings to be planted in the area. 7. to date. 8. More or Less 6 household were affected during high tide and he added that 6 persons were employed at the SMC on contractual basis.0 hectares.they reacted that only 30 persons will be benefited from such program. the total number of pole size beach agoho tree species. mangroves.28 (Pangolong). The subject alleged private property is approximately 6. 015-0642 which was cancelled in C. Bigo with an average of 6 members each family to make a total population of 288. The beach agoho pole size trees were planted using the concept of instant forest thru balling. It is 80% completed and expected to be in operation by 3 rd quarter of May 2009.0 to 4. the washing plant is still in operation. The same mangrove area has bee. mangrove species mostly bakawan along the road. The beach an documented. 2001). there was no development plan submitted by the company regarding the rehabilitation of the area like among others.Y. Kgd.0 hectares more or less. some NGO representatives and some media personnel arrived at the scene.The Team conducted an ocular inspection at the damaged and affected mangrove tree species along Suha Creek located at Sitio Suha. Kgd. The subject area is now enclosed/fenced with barb wire posted with billboard bearing information.

Court of Appeals (356 SCRA 546). Exhaustion of Administrative Remedies SMC’s filing a complaint-affidavit in the Ombudsman is dismissible outright because they have not exhausted all administrative remedies when in fact EMB-DENR6 had already commenced the environmental case under P.D. 2009 are in Annex 12. In Soriano vs. permit. My Character in Relation to my Work In my 36 years (1973-200) government service. The reported established mangrove plantation mostly planted to bakawan species were likewise verified and validatd on the ground. a license. implementation and application of a law would be accorded great weight (Akbayan Youth vs. never I have been involved of graft and corruption much less . The policy of the court as regards the factual findings of administrative bodies is not to interfere with actions of the executive branch or administrative matters addressed to the sound discretion of government agencies (supra). It is an accepted doctrine in administrative law that the determination of an administrative agency as to the operation. the Supreme Court clearly stated that the action of an administrative agency in granting or denying. The violation of ECC conditionals being resolved by EMB-DENR-6 is within the ambit of technical and administrative jurisdiction of EMB-DENR-6. 1586 or the Philippine EIS Systems Law. COMELEC. 355 SCRA 318). or certificate of convenience and necessity is administrative or quasi-judicial…It thus.” (supra). EMB-DENR-6 is short of calling for a final technical conference to reconcile all reports and come up with Decision/Order. and looking forward to retirement on March 22. franchise. Note: The complete and full report with annexes of the Joint Inspection conducted on April 16-17.29 9. 2010. squarely falls under matters relative to the executive department which courts are mandatorily tasked to take judicial notice. It further added that: “It is elementary in administrative law that the court will not interfere in matters which addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. or in suspending or revoking.

30 scalping of government funds.D. . According to the Court of Appeals Decision in CA-G. Never I have been involve in malversation.” The complaint did not come close to any form that will constitute gross misconduct. Barangay Alegria. Conclusion  There is no probable cause to indict me of administrative and/or criminal cases as complained of by SMC because: There had been no gross misconduct committed by me as alleged by SMC.  There is no probable cause because: Our (EMB-6/Respondent’s) actions are within the bounds of the Revised Procedural Manual of DAO 2003-30. the implementing rules and regulations of Malacanang Administrative Order No. 2002 under P. SP No. or constitute flagrant disregard of well-known legal rules. Semirara Island. 01273 promulgated on January 23. 2009: “To constitute grave misconduct. 1586 or the Philippine Environmental Impact Statement Systems Law to request to amend the MOA.  There is no probable cause because: We acted in good faith observing due process in handling the complaint of some residents of Sitio Bigo. 01271 and CAG. Antique. Never I have been involved in extortion.R. I earned my kepts through sweat and labor. but pure and simple harassment. the acts complained of should be corrupt or inspired by an intention to violate the law. Caluya. even asking monetary consideration in my service to the people. malfeasance and/or misfeasance nor lethargic actions on environmental cases to protect the environment. 42 dated November 2. In the contrary it could have enhanced the operation of the MMT. SP No.R. intimidation and ignorance of the law on the environment and natural resources.

Semirara Island. Caluya. The offshore siltation is still part of Sitio Bigo. There Motion for Reconsideration is still to be heard and decided upon.  There is no probable cause because: SMC cannot claim that the cause of siltation is due to force majeure. 9275 or the Philippine Water Act.  There is no probable cause because: EMB-6/Respondent acknowledgement of SMC’s Motion for Consideration is not in bad faith because it is in compliance to the Ombudsman’s rules and we still have to conduct a technical conference to discuss all reports including their motion.31 That the complaint was action by EMB-6 and within the bounds of the Revised Procedural Manual. His (Magtoto) is not the only basis for resolving the siltation and water pollution case. our actions were based on legal bounds.  There is no probable cause because: .  There is no probable cause because: EMB-6/Respondent issued a Notice of Violation and Order of Fine after observing due process.  There is no probable cause because: The report of Magtoto is so biased in favor of SMC having concentrated his inspection in the area that has no siltation and destruction of mangrove. We endorsed a Complete Staff Work as and information and recommendation to the Pollution Adjudication Board because it is covered under R. Hence. SMC’s reason of force majeure is a weak alibi. Antique. It was a condition in the ECC that they violated by not placing barriers to prevent washing of stockpiled coal wastes into Suha Creek and eventually or direct to the shoreline or to the sea. Barangay Alegria.A. Even considering the complainants will retract EMB-6 has still the reason to continue the case because it affects the environment which is within the mandate of EMB.

The world economy is experiencing downturn and it does not spare the Philippines. World recession is a major source of stocks to fall. 1586 or Philippine EIS Systems Law for violation of ECC conditionals remains the mandate of EMB-DENR-6 and it should be remanded to them for final decision/order.  There is no probable cause because: We furnished a copy to DOE of the Complete Staff Work because as government regulatory body on energy project it has a stake on the issue. .  There is no probable cause because: I. The Memorandum is a public record. but differentiated responsibilities.  There is no probable cause because: The case under P.D.  There is no probable cause because: The publication in the Philippine Daily Inquirer (PDI) was not authorized by me but it might have been given to the correspondent of PDI by Green Forum from Chief. PCD.  There is no probable cause because: EMB-6/Respondent has to conduct technical conference prior coming up with a resolution on SMC’s Motion for Reconsideration. As government entity it has a “common. the Respondent have acted in good faith and presumed regularity and is only following DENR policies rules and regulations.”  There is no probable cause because: A publicly-listed company like SMC is subject to economic and market forces that dictates the rise and fall of its stocks. It is only part of the whole process.32 The report of the MMT is not the deciding factor in our decision.

let us finish the work we are in. the Respondent is not a criminal for protecting the environment and natural resources. NOTARY PUBLIC .  There is no probable cause because: They should have not sued me in my personal capacity because the actions were processed and passed the bureaucratic procedures through the staff and personnel and is a collective decision of the EMB-6.” Abraham Lincoln IN WITH WITNESS WHEREOF. “With malice towards none.  There is no probable cause because: I. 2009 in _____________. rules and regulations. LIPAYON Affiant SUBSCRIBED AND SWORN to before me this ____ day of July 2009 affiant exhibiting his Community Tax Certificate No. policies and mandates of the EMB-DENR.33 The water pollution case is under the mandate of the Pollution Adjudication Board and it should be remanded to them for resolution. There was no abuse of discretion and authority. with firmness in the right as God gives us to see the right. 10380676 on January 07. but those who pollute the creeks and seawater. All these actions were in official capacity because our actions were based on established laws. with charity for all. I have signed the Affidavit this 6 th day of July 2009 at Davao City BIENVENIDO L. irresponsibly kill the mangroves and affect the livelihood of others are the criminals.

_______: Page No.34 Doc. No. _______: Book No. _______: Series of 2009 .