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D E C I S I O N
In this petition for review on certiorari, petitioner REPUBLIC OF THE PHILIPPINES through the Pollution Adjudication Board of the Department of Environment and Natural Resources seeks to annul the Decision [1] of the Court of Appeals [2] in CA-G.R. SP No. 44656 setting aside the Order [3] of the Pollution Adjudication Board [4] in DENR-PAB Case No. 04-00597-96; as well as the Resolution [5] denying reconsideration of said Decision.
The following antecedent facts are undisputed:
Respondent Marcopper Mining Corporation (MMC) was issued a temporary permit to operate a tailings [6] sea disposal system under TPO No. POW-85-454-EJ for the period October 31, 1985 to October 21, 1986. Before it expired, MMC filed an application for the renewal thereof with the National Pollution Control Commission (NPCC). On September 20, 1986, MMC received a telegraphic order from the NPCC directing the former to "(i)mmediately cease and desist from discharging mine tailings into Calancan Bay." The directive was brought about through the efforts of certain religious groups which had been protesting MMC's tailings sea disposal system. MMC requested the NPCC to refrain from implementing the aforesaid directive until its adoption of an alternative tailings disposal system. The NPCC granted MMC's request and called a conference to discuss possible alternative disposal systems. Consequently, an Environmental Technical Committee, composed of representatives from the NPCC, the Bureau of Mines and Geo-Sciences, and MMC was created to study the feasibility of various tailings disposal systems that may be appropriate for utilization by MMC and to submit its findings and recommendations thereon.
Meanwhile, after the expiration of MMC's TPO No. POW-85-454-EJ on October 21, 1986, the NPCC issued to MMC a new temporary permit, TPO No. POW-86-454-EJ dated November 11, 1986, to expire on February 10, 1987, with the condition that "[t]he tailings disposal system shall be transferred to San Antonio Pond within two (2) months from the date of this permit." MMC moved for the deletion of the condition stating that it needed to develop and mine the ore deposits underneath the San Antonio pond for it to continue its mining operations. In a letter-manifestation dated February 5, 1987, MMC requested the NPCC for an extension of TPO No. POW-86-454-EJ and the indefinite suspension of the condition in said permit until such time that the NPCC shall have finally resolved the NPCC case entitled "Msgr. Rolly Oliverio, et al. vs. Marcopper Mining Corporation."
In the meantime, the NPCC was abolished by Executive Order No. 192 [7] dated June 10, 1987, and its powers and functions were integrated into the Environmental Management Bureau and into the Pollution Adjudication Board (PAB). [8]
On April 11, 1988, the Secretary of Environment and Natural Resources, in his capacity as Chairman of the PAB, issued an Order directing MMC to "cease and desist from discharging mine tailings into Calancan Bay." The order reads:
The Temporary Permit to Operate issued to Marcopper Mining Corporation expired on February 10, 1987.
Section 96 of the National Pollution Control Commission (NPCC) Rules and Regulations, which were adopted by the Board, provides that in no case can a permit be valid for more than one (1) year.
Records show that Marcopper Mining Corporation has not filed any application for renewal of the permit.
Marcopper Mining Corporation is hereby ordered to cease and desist from discharging mine tailings into Calancan Bay immediately upon receipt of this Order.
Immediately thereafter, the DENR Undersecretary for Environment and Research issued a telegraphic order dated April 15, 1988, enjoining immediate compliance by MMC of the cease and desist order of April 11, 1988.
MMC appealed the above orders of April 11, 1988 and April 15, 1988 to the Office of the President, docketed as O.P. Case No. 3802. In an Order dated May 2, 1988, the Office of the President denied MMC's requests for issuance of restraining orders against the orders of the PAB. Consequently, MMC filed an "Urgent Ex-Parte Partial Motion for Reconsideration" dated May 6, 1988, seeking the reconsideration of the above Order. In an Order dated May 13, 1988, the Office of the President granted the above partial motion for reconsideration, thus:
"WHEREFORE, the instant "Urgent Ex-Parte Motion for Reconsideration" is hereby GRANTED, and the Order of this Office, dated May 2, 1988, is hereby set aside insofar as it denies respondent-appellant's requests for issuance of restraining orders.
Accordingly, the Pollution Adjudication Board, its agents, deputies or representatives are hereby enjoined from enforcing its cease and desist order of April 15, 1988 pending resolution by this Office of respondent-appellant's appeal from said orders.
It is further directed that the status quo obtaining prior to the issuance of said cease and desist order be maintained until further orders from this Office.
It is understood, however, that during the efficacy of this restraining order, respondent-appellant shall immediately undertake, at a cost of not less than P30,000.00 a day, the building of artificial reefs and planting of sea grass, mangroves and vegetation on the causeway of Calancan Bay under the supervision of the Pollution Adjudication Board and subject to such guidelines as the Board may impose.
In line with the directive from the Office of the President, the Calancan Bay Rehabilitation Project (CBRP) was created, and MMC remitted the amount of P30,000.00 a day, starting from May 13, 1988 to the Ecology Trust Fund (ETF) thereof. However, on June 30, 1991, MMC stopped discharging its tailings in the Bay, hence, it likewise ceased from making further deposits to the ETF.
From the issuance of the Order on May 13, 1988 until the cessation of the tailings disposal on June 30, 1991, MMC made its contribution to the ETF in the total amount of Thirty-Two Million Nine Hundred and Seventy-Five Thousand Pesos (P32,975,000.00). Thereafter, MMC filed a Motion dated July 9, 1991 manifesting that it would discontinue its contributions/deposits to the ETF since it had stopped dumping tailings in the Bay. MMC prayed that the Order issued by the Office of the President on May 13, 1988 be lifted.
On February 5, 1993, the Office of the President rendered a decision in O.P. Case No. 3802 dismissing the appeal; affirming the cease and desist Order issued by the PAB; and lifting the TRO dated May 13, 1988. The Office of the President resolved the appeal in this wise:
"This brings to the fore the primordial issue of whether or not the Secretary of Environment and Natural Resources gravely erred in declaring the TPO No. POW-86-454-EJ issued to respondent-appellant MMC expired on February 10, 1987, and in ordering the latter to cease and desist from discharging mine tailings into Calancan Bay.
Respondent-appellant argues that the cease and desist orders were issued by the PAB ex-parte, in violation of its procedural and substantive rights provided for under Section 7 (a) of P.D. No. 984 requiring a public hearing before any order or decision for the discontinuance of discharge of a sewage or industrial wastes into the water, air or land could be issued by the PAB.
We are not persuaded.
Section 7(a) of P.D. No. 984, reads in part:
"Sec. 7(a) Public Hearing. - Public hearing shall be conducted by the Commissioner, Deputy Commissioner or any senior official duly designated by the Commissioner prior to issuance or promulgation of any order or decision by the Commissioner requiring the discontinuance of discharge of sewage, industrial wastes and other wastes into the water, air or land resources of the Philippines as provided in the Decree: provided, that whenever the Commission finds a prima facie evidence that the discharged sewage or wastes are of immediate threat to life, public health, safety or welfare, or to animal or plant life, or exceeds the allowable standards set by the Commission, the Commissioner may issue an ex-parte order directing the discontinuance of the same or the temporary suspension or cessation of operation of the establishment or person generating such sewage or wastes without the necessity of a prior public hearing. x x x . (underscoring supplied).
Clearly then, it is self-indulgent nonsense to assume that the DENR Secretary, acting as PAB Chairman, is absolutely without authority to issue an ex-parte order requiring the discontinuance of discharge of sewage or other industrial wastes without public hearing. As can be gleaned from the afroequoted proviso, this authority to issue an ex-parte order suspending the discharge of industrial wastes is postulated upon his finding of prima-facie evidence of an imminent "threat to life, public health, safety or welfare, to animal or plant life or exceeds the allowable standards set by the Commission." [11] In a letter dated January 22, 1997 [12] , Municipal Mayor Wilfredo A. Red of Sta. Cruz, Marinduque informed the PAB that MMC stopped remitting the amount of 30,000.00 per day as of July 1, 1991 to the ETF of the CBRP. This letter-complaint of Mayor Red was docketed as DENR-PAB Case No. 04-00597-96, for violation of P.D. 984 [13] and its implementing Rules and Regulations.
In an order dated April 23, 1997, the PAB ruled that the obligation of MMC to deposit P30,000.00 per day to the ETF of the CBRP subsists, as provided for in the Order of the Office of the President dated May 13, 1988, during the "efficacy of said order restraining the PAB from enforcing its cease and desist order against MMC". Since the Order was lifted only on February 5, 1993, the obligation of MMC to remit was likewise extinguished only on said date and not earlier as contended by MMC from the time it ceased dumping tailings into the Bay on July 1, 1991. We quote in part:
"The issue before this Board is whether Marcopper Mining Corporation is still obliged to remit the amount of P30,000.00 to the CBRP. The answer by the Order from the Office of the President dated 13 May 1988, which states that the obligation on the part of Marcopper Mining to pay the amount of P30,000.00 per day for the rehabilitation of Calancan Bay is binding only during the efficacy of the said Order.
The record further shows that on 05 February 1993, the Office of the President lifted its Order dated 13 May 1988. This means that as of the date of the lifting, Marcopper Mining Corporation no longer had any obligation to remit the amount of P30,000.00 to the CBRP. Thus, Marcopper's obligation only runs from 13 May 1988 to 05 February 1993. Beyond the cut-off date of 05 February 1993, Marcopper is no longer obligated to remit the amount of P30,000.00 per day to the CBRP.
It does not matter whether Marcopper was no longer dumping its tail minings into the sea even before the cut-off date of 05 February 1993. The obligation of Marcopper to pay the amount of P30,000.00 to the CBRP arises from the Office of the President Order dated 13 May 1988, not from it dumping of mine tailings.
WHEREFORE, Marcopper Mining Corporation is hereby ordered to pay the CBRP the amount of P30,000.00 per day, computed from the date Marcopper Mining Corporation stopped paying on 01 July 1991, up to the formal lifting of the subject Order from the Office of the President on 05 February 1993.
MMC assailed the aforequoted Order dated April 23, 1997 of the PAB as null and void for having been issued without jurisdiction or with grave abuse of discretion in a petition for Certiorari and Prohibition (with prayer for temporary restraining order and preliminary injunction) before the Court of Appeals which was docketed as CA-G.R. No. SP-44656. In a Resolution dated July 15, 1997, the Court of Appeals required the PAB and its members to comment on said petition.
On November 19, 1997, the Office of the Solicitor General, on behalf of the PAB and its members, filed with the Court of Appeals the required comment.
On September 15, 1997, for purposes of determining whether or not to grant MMC's prayer for a temporary restraining order and preliminary injunction, the Court of Appeals conducted a hearing where counsel for the parties were heard on oral arguments.
In a Resolution dated September 19, 1997, the Court of Appeals issued a writ of preliminary injunction, conditioned upon the filing of a bond by MMC in the amount of P500,000.00 enjoining the PAB and its members to cease and desist from enforcing the assailed Order dated April 23, 1997, until it had made a full determination on the merits of the case.
On January 7, 1998, the Court of Appeals promulgated a Decision in CA-G.R. SP No. 44656, the dispositive portion of which reads:
"In view of the foregoing, the instant petition is hereby GRANTED and, accordingly, the questioned Order of respondent Pollution Adjudication Board dated 23 April 1997 is hereby SET ASIDE. Respondents are ordered to REFRAIN and DESIST from enforcing aforesaid Order. The injunctive bond filed by the petitioner in the amount of Five Hundred Thousand (P500,000.00) is hereby RELEASED."
The motion for reconsideration of the above decision was denied in a Resolution dated January 13, 1999 of the Court of Appeals.
Hence, the instant petition on the following grounds:
I
The Court of Appeals erred in ruling that Republic Act No. 7942 (otherwise known as the Philippine Mining Act of 1995) repealed the provisions of Republic Act No. 3931, as amended by Presidential Decree No. 984, (otherwise known as the National Pollution Control Decree of 1976), with respect to the power and function of petitioner Pollution Adjudication Board to issue, renew or deny permits for the discharge of the mine tailings.
II
Respondent Marcopper Mining Corporation bound itself to pay the amount of P30,000.00 a day for the duration of the period starting May 13, 1988 up to February 5, 1993.
III
Respondent Marcopper Mining Corporation was not deprived of due process of law when petitioner Pollution Adjudication Board directed it to comply with its long-existing P30,000.00 per day obligation under the Order of the Office of the President dated May 13, 1988. [15]
In setting aside the Order of the PAB dated April 23, 1997, requiring MMC to pay its arrears in deposits, the Court of Appeals ruled that the PAB exceeded its power and authority in issuing the subject Order for the following reasons:
"The applicable and governing law in this petition is Republic Act No. 7942 otherwise known as the Philippine Mining Act of 1995 ("Mining Act", approved on March 3, 1995).
Chapter XI of the Mining Act contains a series of provisions relating to safety and environmental protection on mining and quarrying operations. More specifically, Section 67 of the Mining Act in essence, grants the mines regional director the power to issue orders or to take appropriate measures to remedy any practice connected with mining or quarrying operations which is not in accordance with safety and anti-pollution laws and regulations.
From a reading of that provision, it would appear therefore that prior to the passage of the Mining Act, the Pollution Adjudication Board had jurisdiction to act on pollution-related matters in the mining business. With the effectivity of the Mining Act and in congruence with its Sec. 115 (i.e., Repealing and Amending Clause), the power to impose measures against violations of environmental policies by mining operators is now vested on the mines regional director. Be that as it may, we are constrained to enunciate that the PAB had no authority to issue the challenged Order dated 23 April 1997. More so, respondent PAB as petitioner argued and We note, had remained perplexingly silent on the matter for almost six (6) years from July 1991 when MMC ceased to make its deposits up to April 1997 when respondent PAB precipitately issued the Order requiring MMC to pay its arrears in deposits to the ETF. And PAB, apparently oblivious to MMC's economic quandary had issued said Order ex-parte without hearing or notice.
x x x
As a general rule, the adjudication of pollution cases pertains to the Pollution Adjudication Board (PAB), except in cases where the special law, expressly or impliedly, provides for another forum, as in the instant petition.
Thus under Republic Act No. 7942 and its implementing rules and regulations, the mines regional director, in consultation with the Environmental Management Bureau (italics ours), is specifically mandated to carry out and make effective the declared national policy that the State shall promote the rational exploration, development, utilization and conservation of all mineral resources in public and private lands within the territory and exclusive economic zone of the Republic of the Philippines, through the combined efforts of government and the private sector in order to enhance national growth and protect the rights of affected communities. (Sec. 2, R.A. 7942).
Under this expansive authority, the Mines Regional Director, by virtue of this special law, has the primary responsibility to protect the communities surrounding a mining site from the deleterious effects of pollutants emanating from the dumping of tailing wastes from the surrounding areas. Thus, in the exercise of its express powers under this special law, the authority of the Mines Regional Director to impose appropriate protective and/or preventive measures with respect to pollution cases within mining operations is perforce, implied. Otherwise, the special law granting this authority may well be relegated to a mere paper tiger - talking protection but allowing pollution.
It bears mention that the Pollution Adjudication Board has the power to issue an ex-parte order when there is prima facie evidence of an establishment exceeding the allowable standards set by the anti-pollution laws of the country. (Pollution Adjudication Board v. Court of Appeals, et al., 195 SCRA 112). However, with the passage of R.A. 7942, insofar as the regulation, monitoring and enforcement of anti-pollution laws are concerned with respect to mining establishments, the Mines Regional Director has a broad grant of power and authority. Clearly, pollution-related issues in mining operations are addressed to the Mines Regional Director, not the Pollution Adjudication Board.
This being the case, the questioned Order dated 23 April 1997 requiring MMC to pay its arrears in deposits was beyond the power and authority of the Pollution Adjudication Board to issue and as such, petitioner may seek appropriate injunctive relief from the court. Thus, certiorari lies against public respondent PAB." [16]
The Court of Appeals likewise ruled that the obligation of MMC to contribute to the ETF of the CBRP ceased inasmuch as the latter discontinued dumping tailings into the Bay and the actual funds in the ETF are sufficient to rehabilitate the Bay. It ratiocinated thus:
"In the instant case, it is of record that petitioner MMC undertakes its obligation to provide for the rehabilitation of the Bay waters. This obligation, through its monetary contribution to the ETF, is however anchored on its continuing disposal of the mines tailings waste into the Bay. Hence, since it ceased its mining operations in the affected area as of July 1991 and had not been discharging any tailings wastes since then, its consequent duty to rehabilitate the polluted waters, if any, no longer exists.
x x x
Be that as it may, this Court observes that out of the approximate sum of thirty-two (32) million pesos contributed by the petitioner to the ETF there is admittedly an existing estimated balance of fourteen (14) million pesos in the Fund. For its part, petitioner does not renege on its obligation to rehabilitate and in fact undertakes to continue the rehabilitation process until its completion within two (2) years time and which would only cost six (6) million pesos. Thus, as petitioner convincingly argued and which respondent unsatisfactorily rebuked, the existing fourteen (14) million pesos in the ETF is more than enough to complete the rehabilitation project. (TSN, Hearing dated 15 September 1997, at pp. 56 to 62, Rollo).
xxx. Without much ado, the Court concurs with the finding that to demand a daily deposit of thirty thousand (P30, 000.00) pesos even if the root of the obligation, that is, the dumping of tailings waste, had ceased to exist, is indubitably of a herculean and onerous burden on the part of petitioner amounting to a deprivation of its property and a denial of its right to due process." [17]
Unsatisfied, the OSG argues that the Philippine Mining Act of 1995 did not amend or repeal the provisions of Republic Act No. 3931, as amended by Presidential Decree No. 984 (otherwise known as the National Pollution Control Decree of 1976); that the Mines Regional Director has no power over areas outside mining installations and over areas which are not part of the mining or quarrying operations such as Calancan Bay; that the powers of the Mines Regional Director cannot be exercised to the exclusion of other government agencies; that the jurisdiction of a Mines Regional Director with respect to anti-pollution laws is limited to practices committed within the confines of a mining or quarrying installation; that the dumping of mine tailings into Calancan Bay occurred long before the effectivity of the Philippine Mining Act and that MMC cannot hide under cover of this new law. The OSG further argues that the portion of the Order of May 13, 1988, setting the period of time within which MMC shall pay P30,000.00 per day, which is during the efficacy of the restraining order was never questioned or appealed by MMC. Finally, the OSG argues that PAB did not violate MMC's right to due process by the issuance of the Order dated April 23, 1988 without notice and hearing as it was simply requiring MMC to comply with an obligation in an Order which has long become final and executory.
In the context of the established facts, the issue that actually emerges is: Has the PAB under RA 3931 as amended by PD 984 (National Pollution Control Decree of 1976) been divested of its authority to try and hear pollution cases connected with mining operations by virtue of the subsequent enactment of RA 7942 (Philippine Mining Act of 1995)? As mentioned earlier, the PAB took cognizance and ruled on the letter-complaint (for violation of PD 984 and its implementing rules and regulations) filed against MMC by Marinduque Mayor Wilfredo Red. In the subject Order dated April 23, 1997, the PAB ruled that MMC should pay its arrears in deposits to the ETF of the CBRP computed from the day it stopped dumping and paying on July 1, 1991 up to the lifting of the Order of the Office of the President dated May 13, 1988 on February 5, 1993.
The answer is in the negative. We agree with the Solicitor General that the Court of Appeals committed reversible error in ruling that the PAB had no authority to issue the Order dated April 23, 1997.
Republic Act No. 3931 (An Act Creating The National Water And Air Pollution Control Commission) was passed in June 18, 1964 to maintain reasonable standards of purity for the waters and air of the country with their utilization for domestic, agricultural, industrial and other legitimate purposes. Said law was revised in 1976 by Presidential Decree No. 984 (Providing For The Revision Of Republic Act No. 3931, Commonly Known As The Pollution Control Law, And For Other Purposes) to strengthen the National Pollution Control Commission to best protect the people from the growing menace of environmental pollution. Subsequently, Executive Order No. 192, s. 1987 (The Reorganization Act of the DENR) was passed. The internal structure, organization and description of the functions of the new DENR, particularly the Mines and Geosciences Bureau, reveals no provision pertaining to the resolution of cases involving violations of the pollution laws. [18] The Mines and Geo-Sciences Bureau was created under the said EO 192 to absorb the functions of the abolished Bureau of Mines and Geo-Sciences, Mineral Reservations Development Board and the Gold Mining Industry Development Board to, among others, recommend policies, regulations and programs pertaining to mineral resources development; assist in the monitoring and evaluation of the Bureau's programs and projects; and to develop and promulgate standards and operating procedures on mineral resources development. [19]
On the other hand, the PAB was created and granted under the same EO 192 broad powers to adjudicate pollution cases in general. Thus,
SEC. 19. Pollution Adjudication Board. - There is hereby created a Pollution Adjudication Board under the Office of the Secretary. The Board shall be composed of the Secretary as Chairman, two (2) Undersecretaries as may be designated by the Secretary, the Director of Environmental management, and three (3) others to be designated by the Secretary as members. The Board shall assume the powers and functions of the Commission/Commissioners of the National Pollution Control Commission with respect to the adjudication of pollution cases under Republic Act 3931 and Presidential Decree 984, particularly with respect to Section 6 letters e, f, g, j, k, and p of P.D. 984. The Environmental Management Bureau shall serve as the Secretariat of the Board. These powers and functions may be delegated to the regional offices of the Department in accordance with rules and regulations to be promulgated by the Board. [20]Section 6 letters e, f, g, j, k, and p of PD 984 referred to above are quoted as follows:
Issue orders or decision to compel compliance with the provisions of this Decree and its implementing rules and regulations only after proper notice and hearing.
