1

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.

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

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.

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, Barangay Alegria, Semirara Island, Caluya, Antique.
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, Semirara Island, Caluya,
Antique. 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. (Report of the Joint Inspection Team dated April
16-17, 2009). Others mine for emphasis. The MMT is so remiss of their duties and
responsibilities. Hence, another violation of the MOA.
12 - That Item No.6 of the complaint: :In 2007, however, the respondent
wanted to amend the MOA by replacing the PENRO with himself as Chair of the
EXCOM. A draft of the proposed amendment and Manual of Operations for MMTs was
sent to SMC for the latters conformity.
The allegation is denied and the truth is that EMB-6/Respondents basis is the
Revised Procedural Manual for Department Administrative Order No. 2003-30, the
Implementing rules and Regulations of Malacanang Administrative Order No. 42 dated
November 2, 2002 issued by the President, under P.D. 1586 or the Philippine MMT was
changed including the membership. Under the Revised Procedural Manual of DAO
2003-30, a pro-formatted MOA in annex 3-4, Section B, states, as a general rule, the
DENR-EMB Regional Director shall serve as the MMT Chair. In some cases, the
provisions of the MOA on the establishment of the MMT may specify procedures for the
selection of the MMT Chair. The selection of non-DENR persons as Chair of the MMT
shall require prior concurrence of the DENR-EMB RD concerned.
SMC did not agree based on their letter dated June 26, 2008, on the proposed
revision of the MOA and submission of the proposed Manual of Operations, because,
according to them, the MMT was already been organized, it restate the guidelines of the
MOA, the Manual seeks to revise the MOA and the MMT is efficient.

On July 8, 2008, EMB/Respondent acknowledged the letter of SMC through

Counsel, that we will clarify the issues raised.
Hence, 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. EMB/Respondent is just following

DENR policies not through our whims and caprices. What then was my violation if SMC
did not conform to our proposal and the status quo is in effect? Nothing at all!
13 - That Item No. 7 of the complaint: SMC ignored the proposal at first but
respondent was insistent and reiterated SMCs conformity to the new set-up.
The allegation is denied and the truth is that our letter on April 10, 2008 was
an acknowledgement of the Compliance Monitoring Report for SMC. We also informed
SMC and it states:
May we inform you that we are now implementing the Revised Procedural
Manual of DAO 03-30, the implementing rules and regulations of P.D. 1586. Under this
revised manual, an updated format of compliance monitoring is included. Relative to
this, may we advise you to use the new format which will result to a more
comprehensive monitoring report. Monitoring should include the compliance to the EMP
and the actual measures being implemented based on the actual impacts of the project.
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.

We did not

commit administrative and/or criminal liabilities when we are just following new policies
and reiterated our letter on July 13, 2007 because SMC did not care to answer said
letter, None at all! However, our acknowledgement on the letter of SMC is based on the
rules of the Ombudsman.
14 - That Item No. 8 of the complaint: SMC put its foot down on respondents
proposal in a letter dated June 26, 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.
The allegation is denied and the truth is that SMC showed its arrogance by
not answering EMB-6/Respondents letter dated July 13, 2007.

A MOA is not unmovable thing that it cannot be revised or amended to suit new
policies of the DENR. I am not the signatory of MOAs, if there are any to be installed or
revised or amended, it is the DENR Regional Executive Director or the EMB Central
Office Director or the Secretary himself.

But SMC is showing its arrogance by not complying with new sets of procedures
and policies. However, we did not insist and the same set up is still being followed by
SMC. What violation and damage did we make to SMC? Again, none at all!
15 - That item No. 9 of the complaint, SMCs adverse reaction received a curt
reply from the respondent in a letter dated July 8, 2008 saying that the issues raised by
SMC will be clarified in due time, SMC has not received any clarification up to this time.
The allegation is denied and that truth is that SMC is just making up things,
exaggerating to make a case against me (respondent) so that I will bow to their wishes
due to their intimidation, harassment and vexation. They are so ignorant of the changes
in policies of the DENR and Malacaang.
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. It is very clear that the intention of SMC is not to comply with the new requirements
with the new policies.
SMC is just imagining things and clearly assuming even putting words that would
create anger and hatred. In our letter of July 8, 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.
EMB-VI did not stop the present MMT from doing its functions. The DENRPENRO is still the head of the MMT. We have called them for a conference since 2008
to iron out and explain to them new procedures, and other matters and SMC did not
attend any.
16 - That item no. 10 of the complaint; On December 12, 2008, acting on
complaint dated September 6, 2008 from some residents in Barangay Bigo, Alegria
Antique, respondent sent SMC a notice of alleged Violation in the area emanating from
SMCs coal washing plant.

The allegation is denied and the truth is that:

On December 3, 2008, EMB-DENR, region VI received a complaint addressed to
the Hon. Jose L. Atienza, Jr. coming from some residents of Sitio Bigo, Barangay
Alegria, Municipality of Caluya, Province of Antique. Annex 2.

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. Its
siltation pond had long not been maintained. There livelihood was affected.
The complainants are requesting the following.
1. Immediate transfer or properly maintain the coal washing plant;
2. To have a program to rehabilitate the area affected;
3. To pay for compensation of damages; and
4. To provide alternative livelihood to those who are affected.
On November 20, 2008, the Provincial Board of Antique passed Resolution No.
301-2008 favorably endorsing the petition of the residents of Sitio Bigo, Barangay
Alegria, Caluya, Antique to her Excellency Gloria Macapagal-Arroyo, Senate president
Juan Ponce Enrile, House Speaker Prospero Nograles and Secretary Lito Atienza of the
DENR for information and reference. Annex 3.
Any government regulator will immediately act on the complaint as this is a high
profile complaint sent to high profile political personalities and offices.
EMB-VI/Respondent even directs its staff to investigate complaints called on by
phone or published in media outlets.
The complaint of some residents of Sitio, Barangay Alegra, Municipality of
Caluya, Province of Antique was given due course by EMB-VI because it is actionable
under P.D. 1586, its Implementing Rules and regulations and the Revised Procedural
Manual for DAO No. 30 series of 2003. Under item No. 2.0 Procedural requirements
of the EIA process, 2.4 Adminsitrative Investigation, 2.5 Handling of complaints or
Adverse Monitoring Findings, the following steps are observed:

Scenario 1: Discovery of alleged violation from complaints and non-monitoring

sources.
1.0. DENR-EMB Office concerned shall verify if the complaint (or report) is within
the purview of P.D. 1586.
1.1. Complaint (or report) is actionable under P.D. 1586?

1.2a If yes, 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.
Our comment:
EMB-VI/Respondent issued a Notice of Alleged Violation on December 12,
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. 9805-009-302 dated August 12, 1999) specifically conditions Nos. 4,
46 and 48 which deals on proper measures to mitigate siltation and
contamination of the nearby waterbody.
1.2b EMB Director/RD refers complaint to Pollution Adjudication Board (PAB), or
government entities/LGUs with direct mandate on the complaint.
Our comment:
Based on step 1.2.b, EMB-VI/Respondent endorsed a Complete Staff
Work to the Secretary Department of Energy and Bureau of Fisheries and
Aquatic Resources, and to the Pollution Adjudication Board.
3.0. Proponent responds in 7 days.
Our comment:
SMC responded to the Notice of Alleged Violation in an undated letter
regarding the alleged complaint from the residents of Barangay Alegria , Caluya,
Antique on the alleged black silt emanating from the coal washing plant.

3.1a Case deemed submitted for decision, or may call for technical conference
to clarify issues.
Our comment:
EMB-6/Respondent called for technical conference on January 30, 2009
regarding the complaint of some residents at Sitio Bigo, Barangay Alegria, Caluya,
Antique.

3.2 EMB holds a technical conference: whether Proponent attends or not, case
is deemed submitted.
3.3 Notice of Violation (NOV) and Order of Payment issued by EMB.
Our comment:
EMB-6/Respondent issued a Notice of Violation on February 17, 2009 and Order
of Fine on even date after issuance of Notice of Alleged Violation was issued on
December 12, 2008 and SMCs answer on an undated letter and technical conference
on January 30, 2009.
Hence, there is no iota of gross misconduct no traces of hostility, nor retaliation to
SMCs refusal to accede to respondents inordinate interest to control the MMT and its
funds, but in the interest of fair play after giving SMC a day in court. It is based on the
revised procedural manual of DAO 2003-30.
17 - That item No. 11 of the complaint: In reply, SMC explained that the
alleged siltation, if at all, was in 2006 yet caused by force majeure - typhoons, 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, a copy of
SMCs letter dated January 27, 2009.
The allegation is denied and the truth is that SMCs position that the siltation
was caused by force majeure is to say the least a blatant lie. If SMC has corporate
social responsibility, knows by heart the conditions of its ECC and if SMC knows the
different laws, implementing rules and regulations and Procedural Manual, they should
have reported the siltation caused by typhoons there and then.

Even the dead and dying mangroves were not reported to DENR, in violation of
P.D. 705 or the Forestry Law.
SMC can not claim that force majeure or typhoons was the cause of siltation. A
very lame excuse at its worst. The ECC condition No. 4 says,
All appropriate mitigating measures shall be instituted to minimize the
generation of noise, dust, siltation and contamination of any water body
throughout the project operation, noise level, emission and effluent
generated shall conform with DENR Standard.

10

Based on the Inspection conducted on April 16-17, 2009, the sample taken at the
effluent showed that the Total Suspended Solids (TSS) had a value of 220 milligrams
per liter (mg/l). The firms 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, and
Amending the effluent Regulations of 1982. On the other hand, samples 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.
Inspection Report conducted by Engr. Virgilio F.
Fabromero, Engr Leah S. Garingalao, For. Louise L.
Laud and Josephine C. Maguad of EMB-6 and
CENRO Culasi.
ECC Condition No. 46 says,
Prior to construction of the sea barrier, installation of silts curtains and
siltation ponds, an Authority to Construct/Permit to Operate shall be
secured from the DENR, Region VI.
SMC did not secure Authority to Construct sea barriers and installation of silt
curtains and siltation ponds
ECC conditions No. 48 says,

Adequate drainage system shall be provided for the stockpiles, coal

washing plant. 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.
Again, SMC violated this provisions of the ECC, hence, we issued Notice of
Violation and Order to pay fine.
The ECC is attached as Annex 4.

11

This is a hard evidence, that SMC violated P.D. 1586 and R.A. 9275 or the
Philippine Clean Water Act. That is why the case was endorsed to the Pollution
Adjudication Board on February 17, 2009.
During the technical conference on January 30, 2009, the complaint was read by
the Chairman, then kagawad Cesar dela Torre and Barangay Captain Ronald M.
Lavega described the problem of siltation and its effect to the mangroves, seaweed
planting and livelihood of the residents of Sitio Bigo. The problem is now spreading to
other sitios and Barangay proper. They want that the siltation from the coal washing
plant be stopped immediately.
Engr. Josephine Maguad assigned in EMB, DENR-PENRO Antique submitted
photographs showing some portion of the affected areas. Annex 5.
Mr. Rogelio P. 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. The salient points are as follows:

Had a dialogue with Sitio Bigo residents.

They presented their loss of

income due to siltation and demanded payment of damages due to

opportunity loss, replacement of dead trees; replanting of sea grass and stop
siltation.

SMC presented their side and as payment of opportunity loss, SMC is

constructing a deep sea fishing outfit (pangulong) worth two (2) million pesos
intended for the affected fisherman.

As permanent solution to the prevention of siltation, to transfer the whole coal

washing plant from Suha to Panian.

Instead of pangulong project as their livelihood they want cold cash as

payment of their loss of income in the amount of P120,000.00 pesos per
family

The residents agree to accept the 2 million pangulong fishing project instead
of the P 120,000.00 each per family.

Thus SMCs 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.

12

They were warned under ECC conditions No. 4, 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.
Polluting any body of water, whether it is, inland or seawater is a violation under
the provisions of section 27 of R.A. 9275 of the Philippine Cleam Water Act which
states;
Section 27 prohibited Acts The following acts are hereby prohibited:
(a) Discharging, 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, either by tide action or by storm, floods or otherwise, which
could cause water pollution or impede natural flow in the water body.
SMC cannot claim force majeure as the cause of siltation in the margins of Sitio
Suja, Barangay Semirara and at the sundunes of Sitio Bigo, Barangay Alegria.
18 - That item No. 12 of the complaint: Meanwhile on February 8, 2009, the
DENR VI, 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. He
found out that:
(a) there was no siltation in the mangrove forests coming from SMCs mining
operations;

(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.
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. He
(Magtoto) did not initiate and go further to where the siltation of coal silts where
deposited. It was further away from the shoreline of Sitio Bigo, Barangay Alegria at the
sand dunes with geographic coordinates of 12 02.218 North and 121021.209 East. This
is still part of Sitio Bigo.

13

Magtoto during his inspection was with Mr. Victor A. Consunji, President of
Semirara Mining Corporation, Engr. Janisto Diaz of SMCs Environmental Unit and Mr.
Timie O. Bienes, Head of the Community Relations, Office at Sitio Bigo to verify the
complaints.
Magtoto justified that it was only August 12, 1999, that Semirara Mining
Corporation has started their mining activities, because that was the time that secretary
Antonio H. Cerilles, issued the ECC.
Furthermore, it was the same washing plant and siltation ponds of then SCC a
government owned and controlled corp. that were utilized by SMC when they started
their mining activity of Panian Coal Mine.
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. SMC
before their takeover must have conducted due diligence study of all aspects of
operations of SCC.
Magtoto has no iniatiative to look for other means, even though, he knows where
the bulk of the siltation and water pollution was. Sitio Suja is a nearby, if not just a
boundary of Sitio Bigo, and yet he did not see the dead and dying mangroves with
heavy siltation.
Magtoto is a detailed DENR-CENRO Officer at Semirara Island, and he should
know the ins and outs of Semirara Island. But if he closed his eyes and ears and favor
SMC then the report is biased in favor of SMC. But he is the guardian of environment
and natural resources being an officer of DENR-CENRO.

He failed the test of resiliency to pressure. But how can he, who is alone detailed
in the island. He is in a pitiable situation.
The DENR-PENRO Antique, For. Vicente A. Sardinia issued a Memorandum
dated January 30, 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. This is in line with the agreement during the 4 th quarter MMT meeting last
December 5-7, 2008 and during the technical conference on January 30, 2009. He
(Magtoto) was directed to submit a report on or before February 16, 2009 of inventory to
include the number of affected mangrove species, area covered, maps, pictorials and
the total area. Annex 6.

14

Another Memorandum was issued by PENRO Sardinia to the OIC, CENR Officer,
CENRO, Culasi, Antique dated March 31, 2009, attention: Farm Supervisor Freddie
Magtoto with subject: Justification/Explaination on the Dead mangroves in sitio Suja,
Semirara, Caluya, Antique due to siltation caused by Typhoon Frank considered as
Force Majeure. Annex 7.
The gist of the Memorandum of PENRO Sardinia was the memorandum
submitted to PENRO dated February 20, 2009 regarding inventory which stated:
sixty (60) mangroves, mostly Bungalan (Avicenia marina), Api-Api
(Avicenia Officinalis) and 115 Tabou Saplings (Lumnitzera littoral) and 10
saplings of Piapi (Avecenna Atba) were damaged/affected by siltation.
During the conduct of 3rd Quarter MMT activity last September 24-26,
2008, the MMT inspected the dead mangroves at Sitio Suja, Semirara,
Caluya, 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.
However, during the conduct of the First Quarter MMT activity for CY 2009 last
March 28-30, 2009, the team found out that those dead mangrove species are no
longer in the area. Instead, the area was fenced with barbed wire and planted with
coconut and other mangroves species with small billboard on it as Private Property.

Magtoto was instructed to submit justification/explanations on those affected

Mangroves Species caused by typhoon Frank.
On April 13, 2009, the OIC, CENR Officer, DENR-CENRO, Culasi, Antique issued
a

memorandum

to

Mr.

Freddie

Magtoto,

requiring

to

submit

report

your

justification/explanations on the affected areas caused by Typhoon Frank. Annex 8.

Magtoto sent a Memorandum to the PENR Officer, Antique, thru the OIC, CENR
Officer, Culasi, Antique with subject: compliance to PENRO Memorandum Order dated
March 31, 2009.

15

His justification/explanation were as follows:

That the former SCC from 1987-1998, their coal ash/coal waste was dump
near Suja and Dapdap;

Through the years of continuous dumping, directly into the shoreline of Suja,
the coal waste has become a mountain;

Aside from the coal blending stockpiled, the mountain of coal waste was the
main source/contributor of the siltation in Suha and dapdap;

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, 2006 which was followed by tropical depression
Caloy and typhoon Frank;

From 1980-1996, there was no strict implementation of mining and/or

environmental laws because the Provision of P.D. 1586 of the Philippine EIS
System Rules and regulations, DAO 96-37 was only implemented on January
1997;

The siltation and contamination of Suja and Dapdap due to force majeure or
natural calamity shall be rehabilitated by SMC.

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; construct sea barriers, installation of silt curtains and
siltation ponds, an Authority to Construct/Permit to Operate shall be secured, adequate
drainage system shall be provided for the stockpiles, coal washing plant, 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.

16

These ECC conditions are

ECC Nos. 4, 46 and 48. That is why EMB-

6/Respondent issued a Notice of Violation and Order of Fine for violating these ECC
conditions.
In the Joint Inspection Report Item 4 it states, 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. This justifies our issuance of the Notice of
Violation and Order of Fine.
Also, they are liable under R.A. 9275 or the Philippine Clean Water Act which
prohibits depositing of silt into bodies of water.
As discussed by the MMT on February 26-28, Bayong Creek is silted with Coal Waste.
19 - That Item No. 13 of the complaint: On February 17, 2009, in blatant
disregard of the above findings of the CENRO, the respondent issued a Notice of
Violation finding SMC liable for alleged violation of its ECC on account of the black silt
allegedly from SCMs coal washing plant that flowed directly to the sea.
This allegation is denied and the truth is, there was no blatant disregard of
Magtotos report if SMC is prudent enough in its accusation. Magtotos report was dated
16 February 2009 to the OIC, PENRO Officer, DENR, San Jose, Antique. Our Notice of
Violation was issued on 17 February, 2009. Magtotos report was not yet officially
received by EMB-6/Respondent when we issued the Notice of Violation.

SMC is just concocting so many false allegations to cover up its misdeeds and
disregard to the problems of siltation, 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. What a
show of naked power! But I am not impressed of how they handled the environment
problems.
Our actions are all based on the Revised Procedural Manual of DAO 2003-30,
the implementing rules and regulations of Malacanang Admistrative Order No 42, under
P.D. 1586 or the EIS Systems Law.

17

20 - That Item No. 14 of the complaint: On March 9, 2009, reacting to SMCs

Motion for Reconsideration, respondent replied that the motion will be resolved after
validation of all MMT monitoring reports.
This allegation is denied and the truth is that as a requirement of the
Ombudsman, letters and communications including Motions for Reconsiderations shall
be acknowledged within a timeframe. We complied with this requirement.
EMB/Respondent informed SMC that their Motion for Reconsideration will be
resolved after the monitoring and validation of all reports.
In the resolution of the environmental cases denominated as DENR Case No.
0609-ANT-9999-004 in violation of P.D. 1585 or the EIS Systems Law, EMB6/Respondent were collating all reports coming in from all sources, such as, Magtotos
report, the Joint Inspection Report of EMB-6 and CENRO, the MMT report and other
reports that will be usefull and could lead to the resolution of the case at hand.
We should have scheduled a technical conference to discuss, motion for
reconsideration, testimonies and evidences to resolve the case prior coming up with an
intelligent and sound decision.
I informed the Governor Salvacion Z. Perez, Governor of Antique Province when
we met in Cebu City while attending the One Visayas Clinate Change Summit on May
11-12, 2009 that we will hold the technical conference in her office in San Jose, Antique
to resolve peaceably the raging issue on siltation in Semirara Island.

The media, 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, Barangay Alegria, Culasi, Antique.
But, because I was reassigned to EMB-XI, Davao City through Special Order No.
2009-400 effective May 12, 2009, we were not able to call for a technical conference.
However, the new Regional Director of EMB-6 could do that in order to resolve the
case.
20 - That Item No. 15 of the complaint: Respondents statement in his letter
reply that he will decide SMCs Motion for Reconsideration on the basis of the MMT
report was false and issued in evident bad faith because as early as February 17, 2009,

18

respondent has already prejudged SMCs culpability when he recommended to the

Pollution Adjudication Board (PAB) closure of SMCs coal washing plant.
This allegation is denied and the truth is that SMC is just hallucinating of bad
things. Maybe they have awakened a morning with bad dreams, being hounded with the
siltation problem.
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.
Our basis also,were the complaints and testimonies of participants in the
technical conference held on January 30, 2009.
The PAB, a quasi-judicial court resolves cases under R.A. 9275 or the Philippine
Water Act.
The Clean Water Act has relationship with P.D. 1586 or the EIS Systems Law as
it incorporates in Section 27, Prohibited Acts which states:
h) Undertaking activities or development and expansion of projects
Or operating wastewater/sewerage facilities in violation of P.D.
1586 and its implementing rules and regulations.

As stated in the preceding Item No 14, that I was reassigned to EMB-XI,

Davao City, that is why we were not able to able to decide on SMCs Motion for
Reconsideration. The new Regional Director could call for technical conference prior
coming up with a resolution of the case.
Hence, their is no false and evident bad faith on my part.
That Item No 16 of the complaint: On March 28, 2009, 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.

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. It
is only one of the bases of our decision. This is absurd if we will just hear the side of the
MMT. How can you come up with a sound and intelligent decision if you will just base
the MMTs report. We will again be subjected to law suit without hearing other sides of
the issues.
Under the Revised Procedural Manual of DAO 2003-30, implementing rules and
regulations of Malacanang Administrative Order No. 42 under P.D. 1586 or the EIS
Systems Law, Item 2.3 Monitoring, Validation and Evaluation/Audit Procedures, 19)
Roles and Responsibilities, C) EMB: the EMB shall be primarily responsible for the
over-all evaluation of the Proponents monitoring and the MMT validation.
(i)

For each project issued an ECC, primary responsibility is lodged with the
EMB
Regional Offices who shall implement the Project Environmental Monitoring and
Audit Prioritization Scheme.

(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.

(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.

(iv) EMB does not in any way delegate its authority or devolve its monitoring
functions to the MMT. 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. 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.
SMC has no right to dictate EMB how to resolve this environmental case, no
matter how powerful they are.

20

That Item No. 17 of the complaint: Up to this time, respondent has not issued
any resolution on SMCs Motion for Reconsideration based on and despite his receipt of
the March 28, 2009 MMT Report.
This allegation is denied and the truth is that Respondent would like to
comment on the issues of SMCs Motion for Reconsideration dated 26 February 2009.
1. The Notice and Order were issued without due process and in violation of the
Provisions of the Rules and Regulations Implementing Implementing P.D.
1586, Adm. Order (DAO) No. 37-1996 as amended by DAO No. 2003-30.
To refresh from preceding explainations, EMB/Respondent acted upon receipt of
the complaint from some residents of Sitio Bigo, Barangay Alegria, Semirar Island, a
letter from the Province of Antique to the Office of the President, the Office of the
Senate President, to the office of Congress and Secretary of DENR.
Based on the Revised Procedural Manual of DAO 2003-30, MAO 42, P.D.1586 or
the Phil. EIS Systems Law, we issued a Notice of Alleged Violation on December 12,
2008.
SMC answered the Notice of Allegation Violation through a letter without a date
informing EMB-DENR, Region VI, Iloilo City, among others, the issue of black silt was
brought to them after previous typhoon Senyang last December 2006 and other
typhoons.

Furthermore, SMC informed EMB-DENR that they are already implementing

mitigating measures.
EMB/Respondent invited SMC to a technical conference on January 30, 2009
and they were represented by Mr. Janisto Diaz, Jr., Pollution Control Officer. Other
participants who were present were the Barangay Captain of Barangay Alegria, Mr.
Ronald Lavega, Barangay Kagawad Ernesto de la Torre , Mayor Reynante Lim of
Caluya, Antique, The DENR PENRO and CENRO in the Province of Antique and
Municipality of Culasi respectively, Engr. Josephine Maguad of EMB Antique and Mr.
Rogelio Barreto of EMB, Regional Office. All participants were given a day in court to
explain their respective positions. Complete Staff Work is hereto attached as Annex

21

Then EMB/Respondent issued a Notice of Violation and Order of Fine on

February 17, 2009.
SMC filed a Motion for Reconsideration on February 26, 2009. Their Motion for
Reconsideration was acknowledged by EMB-6 on March 9, 2009. Their Motion is still
pending for decision and will be decided after all reports had been properly discussed
and deliberated.
Apparently, by the afore-cited factual antecedents and following the provisions of
the Procedural Manual of DAO 2003-30, it can be gleaned and deduced that the office
has given SMC to explain their side and accorded their right to due process.
In administrative proceedings, it is not necessary that it should be trial-typed
proceeding. The essence of due process can be complied by giving SMC an opportunity
to be heard. The Supreme Court in the leading case of Navarro III vs. Damasco, 246
SCRA 260, provides, 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.

Inasmuch, as SMC had participated actively in the technical conference called for
this purpose, they could not question that they were not afforded the right to due
process. Moreover, 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. The embodied
conditions in the ECC are not rhetorics, but commitments that should be followed in
order to protect the environment. The non-compliance thereof, will be understood as
lack of apathy of SMC towards the environment and should be penalized accordingly.
I could no longer issue a resolution to the case at bar or to SMCs Motion for
Reconsideration because I am no longer the OIC, Regional Director of EMB-6.
Besides, the case then during my watch was still on process.

22

That Item No. 18 of the complaint: Respondents manifest bias and evident
bad faith is further shown from his unfair publication on April 14, 2009 in the Philippine
Daily Inquirer (PDI) of his internal Memorandum to the PAB which publicly condemned
SMC of polluting Semirara Islands waters and mangroves with nary a word about
MMTs earlier findings on March 28, 2009 completely belying said news report February
17, 2009.
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. The Memorandum I presume was given by Dr. Samson N.
Guillergan, Chief, Pollution Control Management Specialist, EMB-6 to Mr. Melvin
Purzuelo of Green Forum. Mr. Purzuelo might have given the Memorandum to Mr.
Nestor Burgos, correspondent of PDI who caused the publication.
PDI has given SMC an equal space and coverage on April 19, 2009 publication
when they published an article entitled, Coal Firm prepares suit vs. DENR exec.
Annex 19.
The Memorandum is a public record and any interested party have access to it.
Hence, there is no manifest bias and evident bad faith on my part.
That Item No. 19 of the complaint: Respondents 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 SMCs
alleged improper mining operations in Semirara in an obvious attempt to besmirch or
injure SMCs standing before the said government agency.
This allegation is denied and the truth is that based on the revised Procedural
Manual of DAO 2003-30, implementing rules and regulations of MAO 42, 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.D. 1586.
The government agency that regulates energy projects is the DOE, not the Mines
& Geo-Sciences Bureau (MGB) of the DENR. The DOE should be even be represented
in the MMT.
SMC must understand that all government agencies has common, but
differentiated responsibilities. Like, the MGB it is closely coordinating and working with
EMB in all mining projects. Even other government agencies coordinates one another
on inspections or other undertakings that could lead to a successful solution of
environmental problems.

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.
Hence, 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.
That Item No. 20 in the complaint: It is quite obvious that respondents hostility
towards SMC was in retaliation for SMCs refusal to accede to respondents inordinate
interest to control the MMT and its funds.
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, nothing more and nothing less!
I do not know where they got the idea that I want to control the funds of MMT. 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.

We handled big projects, such as, the New Ilolio Airport Development Project
(NIADP) in Iloilo City, the New Bacolod (Silay) Airport Development Project in Silay City,
Negros Occidental, the Iloilo Flood Control Project in Iloilo City and the NNGP-EDC
Project in the Municipality of Murcia and Bago City, Negros Occidental. I acted as
Chairperson, 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.
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. Expenditures are based on
Work and Financial Plan which is approved by the Chairperson but had undergone
discussion in the EXECOM.
Even the Environmental Guarantee Fund (EGF) is also handled by a Third Party
and the disbursement is through the EGF Committee. The EMB Regional Director is
the chairperson but the decision is thoroughly and properly discussed after the pros and

24

cons and advantages and disadvantages had been weighed down. If the EGF
Committee needs assistance from experts in coming up with reasonable payment of
damages, we request assistance from government agencies who are experts on the
field.
That is why, the payment of damages is fast, fair and equitable. Mostly affected
parties are satisfied.
Hence, the allegation of SMC that I am hostile towards them because I am
interested to handle the funds is off-tangent, cruel and debased of proper bearing. This
is condemnable.
That Item No. 21 in the complaint: SMC is a publicly-listed company and its
shares of stocks are actively traded in the Philippine Stock Exchanges. Respondents
oppressive, unfair and/or unreasonable conduct, 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).

The allegation is denied and the truth is that publicly-listed companies,

including SMC, is subject to economic and market forces. SMCs business is coal
mining which is vulnerable to economic and market forces not only in the Philippines,
but in a global context.
The United States of Americas economy had plunged into low which is
equivalent to recession. Japan, 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. China is also experiencing economic difficulties because of
global economic downturn.
Can SMCs business be not affected? Why blame others for its woes, if they are
in difficult situation?
There are so many factors that affect the shares of stocks to go down, but most
of all it is the economic and market forces. Others is how the company manage itself.

25

SMC should not claim that they should be exempted in complying with
environmental laws because they are publicly-listed company. They are not immune
nor exempted in complying environmental laws. Even San Miguel Corporation, Bacolod
City, a publicly-listed company was penalized by the PAB when they emitted ammonia
into the atmosphere. In fact they paid a penalty to the PAB. Annex 11.
EDC a public listed company paid the damages that was caused to the farmers
when they accidentally discharged their geothermal waste. The case was resolved by
the EGF Committee and they willingly paid the damages and it was accepted by the
farmers without questions.
SMC should not be onion-skinned, but the best antidote is to comply with all
environmental laws because you are not alone in this world, but there are other people
who suffers the burden of pollution, a scourge of the modern world with irresponsible
and greedy people. As Gandhi had said, There is sufficiency in the world for mans
need but not for mans greed.
We are also reminded of a saying of an Indian Chief, Only when we have cut all
the trees, poisoned all the rivers and fished out the seas, will we suddenly realize that
we cannot eat money.

Hence, EMB-6/Respondent, 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,
rules, regulations, procedures and policies enunciated by the DENR and the Republic of
the Philippines.
Verification of SMC
Item No. 4 That I have not commenced any other action and/or proceeding
involving the same or similar issues in any court, tribunal or quasi-judicial agency, and
to the best of my knowledge, no such action or proceeding is pending before the court,
tribunal or quasi-judicial agency and if I should come to learn later of any such pending
action or proceeding, I shall report this fact to this Honorable Office within five (5) days
from thereof.
SMC should realize that EMB-DENR, an administrative body had commenced
proceeding of the environment case being complained of in the Ombudsman by him.
EMB-DENR-6 had issued Notice of Alleged Violation and SMC answered said notice.

26

EMB-DENR had called for a technical and they answered with a Motion for
Reconsideration. In their complaint-affidavit they were questioning why we have not
came up to resolve the case.
EMB-DENR-6 had endorsed the water pollution case to the Pollution Adjudication
Board (PAB), a quasi-judicial court. The PAB had commenced the case when it heard
said case in Clark Field, Pampanga on April 29, 2009.
Hence, SMC after they certified is guilty of forum-shopping.
The Joint Inspection Report
By the EMB-6 and CENRO Culasi
This Joint Inspection was conducted on April 16-17, 2009 to determine the
siltation problem as was complained by some residents of Sitio Bigo, Barangay Alegria,
Cauya, Antique.

Findings and observations:

1. The washing plant was not in operation due to trouble in the pump. 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, 100 meters length and 2 meters depth. The first pond of the seven ponds
was observed full of silts and alleged by the PCO this will be desilted.
2. 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. Likewise, 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. No sample was taken at the
upstream of Suha Creek considering that no flowing water was observed.
Results of the laboratory analyses on the samples collected showed the influent
has a value of 1,204 mg/l in terms of TSS (Total Suspended Solids), 7 in terms
of pH. Sample taken at the effluent showed that it has a TSS value of 220 mg/l
with pH value of 8. The results showed that the firms effluent exceeded the
Standard in terms of TSS when compared to standard value of 150mg/l under

27

class D (Suha creek is unclassified water body) water pursuant to Table 2b of

DAO 90-35 Revised Effluent Regulation of 1990, Revising and Amending the
Effluent Regulations of 1982.
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.
3.

Two (2) units emergency ponds were also noted constructed parallel to

Bayong Creek which are used for emergency purposes.

4. The waste dump was observed at the northeastern side approximately 75 to
100 meters from the washing plant. 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. According to the PCO, 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). It was observed that
hauling of the old waste was undertaken during inspection. Portion of the mound
(new waste) has already been removed having a distance of approximately 3
meters along the embankment of Bayong Creek. 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.
5. 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.
6. A site visit was conducted at Sitio Bigo, Barangay Alegria. An interview with
Mr. Gracito Pagia with the presence of SMCs Pollution Control Officer Engr.
Janisto diaz that they had been complaining since year 2000 and that they had
asked the person in-charge of the companys CSR for them to see the top
management, but nothing had happened.
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. When asked about the companys offer for a livelihood

28

(Pangolong),they reacted that only 30 persons will be benefited from such

program. What they are asking during the interview was for the company to stop
the siltation in the area that affects their livelihood. Kgd. De la Torre together with
Brgy. Captain Lavega, some NGO representatives and some media personnel
arrived at the scene. Kgd. De la Torre, alleged that the transfer of the washing
plant as promised during the MMT will be done by the end of February 2009,
however, to date, the washing plant is still in operation. H e also disclosed that
there were a total of 48 households in So. Bigo with an average of 6 members
each family to make a total population of 288. More or Less 6 household were
affected during high tide and he added that 6 persons were employed at the
SMC on contractual basis.
7. A new site where the coal washing plant will be transferred is in Sitio Panian,
Brgy. Semirara. It is 80% completed and expected to be in operation by 3 rd
quarter of May 2009.

8.The Team conducted an ocular inspection at the damaged and affected

mangrove tree species along Suha Creek located at Sitio Suha, Brgy. Semirara.
The same mangrove area has bee. The beach an documented, taken pictures
during the 3rd quarter MMT field visits in September 2008. It was confirmed and
verified on the ground that the same area is now transformed/converted into
another land use (now) planted to coconut, mangrove species mostly bakawan
along the road. The beach agoho pole size trees were planted using the concept
of instant forest thru balling. The subject area is now enclosed/fenced with barb
wire posted with billboard bearing information, This is a private, No
Trespassing.
Per record of DENR CENRO Field Office at Semirara, there was no development
plan submitted by the company regarding the rehabilitation of the area like
among others, the total number of pole size beach agoho tree species,
mangroves, and the total number of coconut seedlings to be planted in the area.
The subject alleged private property is approximately 6.0-7.0 hectares, while the
affected damaged mangrove species now converted to coconut plantation mixed
with mangrove along the seashore contains 3.0 to 4.0 hectares more or less. It
appears that the subject area is covered by Tax Declaration Property lot number
015-0519 (replacement of Tax No. 015-0642 which was cancelled in C.Y. 2001).
Magtotos report dated April 22, 2009.

29

9. The reported established mangrove plantation mostly planted to bakawan

species were likewise verified and validatd on the ground.
Note: The complete and full report with annexes of the Joint Inspection
conducted on April 16-17, 2009 are in Annex 12.
Exhaustion of Administrative Remedies
SMCs 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. 1586 or the Philippine
EIS Systems Law. EMB-DENR-6 is short of calling for a final technical conference to
reconcile all reports and come up with Decision/Order.

It is an accepted doctrine in administrative law that the determination of an

administrative agency as to the operation, implementation and application of a law
would be accorded great weight (Akbayan Youth vs. COMELEC, 355 SCRA 318). 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. (supra).
In Soriano vs. Court of Appeals (356 SCRA 546), the Supreme Court clearly
stated that the action of an administrative agency in granting or denying, or in
suspending or revoking, a license, permit, franchise, or certificate of convenience and
necessity is administrative or quasi-judicialIt thus, squarely falls under matters relative
to the executive department which courts are mandatorily tasked to take judicial notice.
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). The violation of ECC conditionals
being resolved by EMB-DENR-6 is within the ambit of technical and administrative
jurisdiction of EMB-DENR-6.
My Character in Relation to my Work
In my 36 years (1973-200) government service, and looking forward to retirement
on March 22, 2010, never I have been involved of graft and corruption much less

30

scalping of government funds. I earned my kepts through sweat and labor. Never I have
been involved in extortion, even asking monetary consideration in my service to the
people.
Never I have been involve in malversation, malfeasance and/or misfeasance nor
lethargic actions on environmental cases to protect the environment.
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.

According to the Court of Appeals Decision in CA-G.R. SP No. 01271 and CAG.R. SP No. 01273 promulgated on January 23, 2009:
To constitute grave misconduct, the acts complained of should be corrupt
or inspired by an intention to violate the law, or constitute flagrant
disregard of well-known legal rules.
The complaint did not come close to any form that will constitute gross
misconduct, but pure and simple harassment, intimidation and ignorance of the law on
the environment and natural resources.

There is no probable cause because:

Our (EMB-6/Respondents) actions are within the bounds of the Revised

Procedural Manual of DAO 2003-30, the implementing rules and regulations of

Malacanang Administrative Order No. 42 dated November 2, 2002 under P.D. 1586 or
the Philippine Environmental Impact Statement Systems Law to request to amend the
MOA. In the contrary it could have enhanced the operation of the MMT.

There is no probable cause because:

We acted in good faith observing due process in handling the complaint of some
residents of Sitio Bigo, Barangay Alegria, Semirara Island, Caluya, Antique.

31

That the complaint was action by EMB-6 and within the bounds of the Revised
Procedural Manual.
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.

There is no probable cause because:

SMC cannot claim that the cause of siltation is due to force majeure. 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. Hence, our actions were based on legal bounds. SMCs reason of force
majeure is a weak alibi.

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. The offshore
siltation is still part of Sitio Bigo, Barangay Alegria, Semirara Island, Caluya, Antique.
His (Magtoto) is not the only basis for resolving the siltation and water pollution case.

There is no probable cause because:

EMB-6/Respondent issued a Notice of Violation and Order of Fine after

observing due process. There Motion for Reconsideration is still to be heard and
decided upon.

There is no probable cause because:

EMB-6/Respondent acknowledgement of SMCs Motion for Consideration is

not in bad faith because it is in compliance to the Ombudsmans rules and we still have
to conduct a technical conference to discuss all reports including their motion.
We endorsed a Complete Staff Work as and information and recommendation
to the Pollution Adjudication Board because it is covered under R.A. 9275 or the
Philippine Water Act.

There is no probable cause because:

32

The report of the MMT is not the deciding factor in our decision. It is only part of
the whole process.

There is no probable cause because:

EMB-6/Respondent has to conduct technical conference prior coming up with a

resolution on SMCs Motion for Reconsideration.

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.

The Memorandum is a public record.

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. As government entity it
has a common, but differentiated responsibilities.

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. World recession is a major source of stocks to fall.
The world economy is experiencing downturn and it does not spare the Philippines.

There is no probable cause because:

I, 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:

The case under P.D. 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.

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The water pollution case is under the mandate of the Pollution Adjudication
Board and it should be remanded to them for resolution.

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. All these actions were in official
capacity because our actions were based on established laws, rules and regulations,
policies and mandates of the EMB-DENR. There was no abuse of discretion and
authority.

There is no probable cause because:

I, the Respondent is not a criminal for protecting the environment and natural
resources, but those who pollute the creeks and seawater, irresponsibly kill the
mangroves and affect the livelihood of others are the criminals.
With malice towards none, with charity for all, with firmness
in the right as God gives us to see the right, let us finish the work we
are in.
Abraham Lincoln
IN WITH WITNESS WHEREOF, I have signed the Affidavit this 6 th day of July
2009 at Davao City

BIENVENIDO L. LIPAYON
Affiant
SUBSCRIBED AND SWORN to before me this ____ day of July 2009 affiant
exhibiting his Community Tax Certificate No. 10380676 on January 07, 2009 in
_____________.

NOTARY PUBLIC

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Doc. No. _______:

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