58474227 envi-case-bulk

Alfredo Estrada, Renato T. Canilang and Manuel C. Lim, petitioners, vs.
CA and Bacnotan Cement Corporation (BCC), respondents.
(G.R. No. 137862 | November 11, 2004)
AUSTRIA-MARTINEZ, J.:
Before this Court is a petition for review on certiorari of the decision[1] of the
Court of Appeals in CA-G.R. SP No. 44324, promulgated on April 6, 1998,
and the resolution[2] dated February 24, 1999 denying petitioners’ motion for
reconsideration.
The facts are as follows:
Alfredo Estrada, Renato T. Canilang and Manuel C. Lim, as concerned
citizens and taxpayers, filed on July 31, 1996, before the Regional Trial Court
(RTC) of Olongapo City, a complaint for Injunction and Damages with Prayer
for Preliminary Injunction and Temporary Restraining Order against Bacnotan
Cement Corp. (BCC), Wawandue Fishing Port, Inc. (WFPI), Jeffrey Khong
Hun as President of WFPI, Manuel Molina as Mayor of Subic, Zambales, and
Ricardo Serrano as Regional Director of the Department of Environment and
Natural Resources (DENR).
The complaint alleges that: WFPI and the Municipality of Subic entered into
an illegal lease contract, which in turn became the basis of a sub-lease in favor
of BCC; the sub-lease between WFPI and BCC is a violation of the first lease
because the cement plant, which BCC intended to operate in Wawandue,
Subic, Zambales, is not related to the fish port business of WFPI; and BCC’s
cement plant is a nuisance because it will cause pollution, endanger the health,
life and limb of the residents and deprive them of the full use and enjoyment
of their properties. The plaintiffs prayed that an order be issued: to restrain
and prohibit BCC from opening, commissioning, or otherwise operating its
cement plant; and to require the defendants to jointly and solidarily pay the
plaintiffs P205,000.00 by way of actual, moral and exemplary damages and
attorney’s fees.[3]
Defendants WFPI/Khong Hun and BCC filed separate motions to dismiss,
both alleging that the complaint states no cause of action. BCC, in its motion,
added that: the plaintiffs failed to exhaust administrative remedies before
going to court; that the complaint was premature; and that the RTC has no
jurisdiction on the matter. Respondent Serrano of the DENR also filed a
motion to dismiss stating that there was no cause of action insofar as he is
concerned since there was nothing in the complaint that shows any dereliction
of duty on his part.[4]
On December 6, 1996, Judge Eliodoro G. Ubiadas of RTC Olongapo City,
Branch 72, issued an order denying respondents’ motions to dismiss and
granting the prayer for a writ of preliminary injunction.[5] Pertinent portions
of the order read as follows:
The Court notes that the powers vested by law under Executive Order 192,
Republic Act 3931 and Presidential Decree 984 are regulatory merely and for
the purpose of determining whether pollution exists.
However, under the laws above-mentioned, the powers granted to the DENR
thru the Pollution Adjudication Board did not expressly exclude the Courts
which under the law are empowered to try both questions of facts and law to
determine whether pollution which maybe nuisance per se or by accidents
(sic) exist or likely to exist. Under the Constitution, the courts are imbued the
inherent power of general jurisdiction to resolve these issues. While it maybe
(sic) true that petitioners might have first to seek relief thru the DENR’s
Pollution Adjudication Board a resort to the remedy provided under the
Pollution Adjudication Board is rendered useless and ineffective in the light of
the urgency that the said pollution be restrained outright in lieu of the
impending risk described in the petition. It will be noted that the DENR did
not have the power either in Executive Order 192, Republic Act 3931 and
Presidential Decree 984 to issue a writ of injunction. The argument therefore
for the exhaustion of administrative remedy and lack of jurisdiction does not
warrant the dismissal of this petition against Bacnotan Cement Corporation.
[6]
Respondents’ motions for reconsideration were likewise denied by the trial
court in an order dated May 13, 1997.[7]
Respondent BCC then went to the Court of Appeals on a petition for certiorari
and prohibition with preliminary injunction and/or temporary restraining order
seeking to reverse and set aside the orders dated December 6, 1996 and May
13, 1997 as well as to lift the writ of preliminary injunction dated December
11, 1996.
On April 6, 1998, the Court of Appeals rendered its decision, granting BCC’s
petition, thus:
WHEREFORE, in the light of the foregoing disquisitions, the instant petition
for certiorari is GRANTED. The assailed Orders dated December 6, 1996 and
May 13, 1997 are hereby SET ASIDE. The writ of injunction issued by the
public respondent under date of December 11, 1996 is forthwith, LIFTED and
the Complaint insofar as petitioner BCC is concerned is ordered forthwith
DISMISSED. No costs.
SO ORDERED.[8]
It reasoned that:
FIRSTLY. …We find that the denial of said Motion to Dismiss by the Court a
quo, was a grave abuse of discretion because of the doctrine of Administrative
Remedy which requires that where an administrative remedy is provided by
statute, relief must be sought administratively first before the Court will take
action thereon. As ruled by the Supreme Court in the case of Abe Abe, et al.
vs. Manta (90 SCRA 524). “When an adequate remedy may be had within the
Executive Department of the government but nevertheless a litigant fails or
refuses to avail himself of the same, the Judiciary shall decline to interfere.
This traditional attitude of the Court is based not only on respect for party
litigants but also on respect for a co-equal office in the government. In fine,
our Supreme Court has categorically explained in Aquino vs. Mariano (129
SCRA 209) that whenever, there is an available Administrative Remedy
provided by law, no judicial recourse can be made until such remedy has been
availed of and exhausted for three (3) reasons that: (1) Resort to court maybe
unnecessary if administrative remedy is available; (2) Administrative Agency
may be given a chance to correct itself; and (3) The principle of Amity and
Convenience requires that no court can act until administrative processes are
completed. Commissioner of Customs vs. Navarro (77 SCRA 264).
SECONDLY, it is a well-settled rule that the jurisdiction of the Regional Trial
Court is general in character, referring to the existence of nuisance under the
provision of Article 694 of the New Civil Code. On the other hand, the
Department of Environment and Natural Resources, through the Pollution
Adjudication Board (PAB) under R.A. 3931 as amended by P.D. 984,
prescribes the Abatement of Pollution. In fine, when it comes to nuisance, the
Court has general jurisdiction under the New Civil Code. But when it comes
to pollution which is specific, the administrative body like the DENR has
jurisdiction. Clearly, nuisance is general or broader in concept while pollution
is specific. Following the rule that the specific issue of pollution, which is
under the jurisdiction of DENR prevails over the general issue of nuisance
which is under the jurisdiction of the RTC (Lagman vs. City of Manila, 17
SCRA 579), there is no doubt that the DENR and not the Court should have
jurisdiction. Hence, the motion to dismiss filed by petitioner should have
been GRANTED by the Court a quo. Since it has no jurisdiction over the
subject matter. Its denial by public respondent was therefore a grave abuse of
discretion, which is correctible by certiorari.
THIRDLY. We should not lose sight of the fact that the authority to construct
in this case is necessarily required prior to the actual construction of
petitioner’s cement bulk terminal while the permit to operate likewise is
required before the petitioner’s cement bulk terminal commences its
operation. In this case, the petitioner, at the time, had only the authority to
construct, pursuant to a valid contract between the WFPI and the petitioner
BCC, approved by the Sangguniang Bayan of Subic and Sangguniang
Panlalawigan of Zambales and pursuant to the requisite of DENR. Again, it
should be remembered that, at the time, petitioner did not yet have the permit
to operate (which should properly be made only after a factual determination
of the levels of pollution by the DENR). Hence, the injunction issued in this
case is premature and should not have been issued at all by public respondent.
FOURTHLY. The effect of the writ of injunction enjoining petitioner from
operating the cement bulk terminal (Order of December 6, 1996) and the
public respondent’s refusal to defer the proceedings below, virtually preempt
the DENR from making such determination, nay even the authority to issue
the permit to operate is likewise preempted. How can we therefore enjoin
operation before the issuance of the permit to operate? It is also a settled rule
that the remedy of injunction is not proper where an administrative remedy is
available. The permit to operate may not even be issued, at all, by the DENR
(Buayan Cattle Co. Inc., vs. Quintillan, 128 SCRA 276).
Evidently, the writ of injunction issued in this case, as We view it, is
premature. In fact, by issuing the Order of Dec. 6, 1996, the public
respondent wrestled the authority from the DENR to determine whether the

cement bulk terminal will cause pollution or not, or whether the pollution may
only be on acceptable level as to justify the issuance of the permit to operate.
While conceding that prior resort should be made to the DENR, the
respondent Judge proceeded to take the contrary stand, following the private
respondent’s contention that the doctrine of exhaustion of administrative
remedies are [sic] inapplicable, since it would cause irreparable injury if
private respondents should avail of administrative step before taking Court
action.
We do not agree.
The respondents’ contention is clearly baseless and highly speculative because
how can it possibly produce irreparable injury before the actual operation
since petitioner has not yet been issued permit to operate. Besides, We find
no evidence shown in the complaint or alleged therein that will support the
presence of pollution and which could properly be the subject of injunction.
Finally, it is interesting to note that the complaint filed by the private
respondents has no prayer for preliminary injunction (it was not asked, why
then should it be given?). Furthermore, the Sublease Agreement having been
partly executed, it could no longer be enjoined.
By and large, the lower court’s denial of petitioner’s motion to dismiss is
undoubtedly a grave abuse of discretion amounting to lack of jurisdiction.[9]
The Court of Appeals denied petitioners’ motion for reconsideration on
February 24, 1999.[10] Hence the present petition alleging that:
I
. . . THE HONORABLE COURT OF APPEALS HAD CLEARLY
DEPARTED FROM THE ESTABLISHED JURISPRUDENCE
ENUNCIATED BY THIS HONORABLE COURT WHEN IT RULED
THAT THE HEREIN PETITIONERS FAILED TO EXHAUST
ADMINISTRATIVE REMEDIES AVAILABLE TO THEM BEFORE THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR) POLLUTION ADJUDICATION BOARD (PAB); and that
II
THE COURT OF APPEALS ALSO GROSSLY ERRED IN RULING THAT
THE REGIONAL TRIAL COURT OF OLONGAPO CITY, BRANCH 72
HAS NO JURISDICTION OVER THE ISSUE OF POLLUTION.[11]
Petitioners argue that: prior resort to an administrative agency is futile and
unnecessary since great and irreparable injury would ensue if the cement
repacking plant is allowed to operate in Wawandue, Subic, Zambales; only the
court can grant them speedy, effective and immediate relief since the DENR-
Pollution Adjudication Board (PAB) has no authority to issue the needed writ
of injunction prayed for by petitioners; E.O. No. 192,[12] R.A. No. 3931[13]
or P.D. No. 984[14] does not expressly exclude the power and authority of the
RTC to try both questions of fact and of law relative to the determination of
the existence of pollution arising from the operation of respondent’s cement
repacking plant either as a nuisance per se or a nuisance per accidens; and the
lower court under the Constitution is imbued with the inherent power and
jurisdiction to resolve the issue of pollution.[15]
In its Comment, BCC contends that: the instant petition should be dismissed
because it is not accompanied by a copy of the petition in CA G.R. SP No.
44324, which violates Rule 45, Sec. 4 of the Rules of Court requiring that the
petition be accompanied by relevant pleadings;[16] the Court of Appeals
correctly held that the jurisdiction to determine the issue of pollution is lodged
primarily with the DENR and not with the RTC; under P.D. No. 984, the task
of determining the existence of pollution was bestowed on the National
Pollution Control Commission (NPCC), the powers of which were assumed
by the DENR under E.O. No. 192; the jurisdiction of the trial courts anent
abatement of nuisance in general cannot prevail over the specific, specialized
and technical jurisdiction of the DENR-PAB; under the doctrine of exhaustion
of administrative remedies, where competence to determine the same issue is
placed in the trial court and an administrative body and the issue involves a
specialized and technical matter, relief should first be sought before the
administrative body prior to instituting suit before the regular courts; the relief
sought by the petitioners to prevent the supposedly injurious operation of
BCC’s cement bulk terminal can be effectively obtained from the DENR,
which, under P.D. No. 984, has the authority to grant, modify and revoke
permits, and to issue orders for the abatement of pollution and impose
mandatory pollution control measures for compliance;[17] since the BCC only
has an “authority to construct” and not yet “permit to operate” at the time of
the filing of the complaint, the writ of injunction issued by the trial court
preempted the DENR from making the determination of whether or not BCC
should be allowed to operate; the complaint was properly dismissed since
petitioners have no legal capacity to bring a suit for abatement of nuisance;
and the right invoked by petitioners is abstract and is not sufficient to confer
locus standi.[18]
In their Reply, petitioners reiterated their arguments and added that they have
fully complied with the requirements of Rule 45.[19]
The principal issue that needs to be resolved is whether or not the instant case
falls under the exceptional cases where prior resort to administrative agencies
need not be made before going to court.
We answer in the negative.
The doctrine of exhaustion of administrative remedies requires that resort be
first made with the administrative authorities in the resolution of a controversy
falling under their jurisdiction before the same may be elevated to a court of
justice for review.[20] If a remedy within the administrative machinery is still
available, with a procedure pursuant to law for an administrative officer to
decide the controversy, a party should first exhaust such remedy before going
to court. A premature invocation of a court’s intervention renders the
complaint without cause of action and dismissible on such ground.[21]
The reason for this is that prior availment of administrative remedy entails
lesser expenses and provides for a speedier disposition of controversies.
Comity and convenience also impel courts of justice to shy away from a
dispute until the system of administrative redress has been completed and
complied with.[22]
As we explained in Gonzales vs. Court of Appeals,[23]
The thrust of the rule on exhaustion of administrative remedies is that the
courts must allow the administrative agencies to carry out their functions and
discharge their responsibilities within the specialized areas of their respective
competence. It is presumed that an administrative agency, if afforded an
opportunity to pass upon a matter, will decide the same correctly, or correct
any previous error committed in its forum. Furthermore, reasons of law,
comity and convenience prevent the courts from entertaining cases proper for
determination by administrative agencies. Hence, premature resort to the
courts necessarily becomes fatal to the cause of action of the petitioner.[24]
While the doctrine of exhaustion of administrative remedies is flexible and
may be disregarded in certain instances, such as:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or
excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency
concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego
of the President bears [sic] the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be
unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy,
(11) when there are circumstances indicating the urgency of judicial
intervention,
(12) when no administrative review is provided by law,
(13) where the rule of qualified political agency applies, and
(14) when the issue of non-exhaustion of administrative remedies has been
rendered moot.[25]
we find, however, that the instant case does not fall under any of the
recognized exceptional circumstances.
Petitioners claim that their action before the trial court, without going to the
DENR first, is justified because they are in danger of suffering grave and
irreparable injury from the operation of respondent’s cement repacking plant
and the DENR does not have the power to grant them the relief they are
praying for.
We do not agree.

Republic Act No. 3931, An Act Creating the National Water and Air Pollution
Control Commission, was passed on 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. It created
the NPCC which had the power, to issue, renew, or deny permits, for the
prevention and abatement of pollution.[26]
In 1976, Presidential Decree No. 984 was enacted to strengthen the NPCC
giving it, among others, the following:
Sec. 6. Powers and Functions – . . .
. . .
(e) Issue orders or decisions to compel compliance with the provisions of
this Decree and its implementing rules and regulations only after proper notice
and hearing.
(f) Make, alter or modify orders requiring the discontinuance of pollution
specifying the conditions and the time within which such discontinuance must
be accomplished.
(g) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of pollution, for
the discharge of sewage, industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts thereof…
…
(j) serve as arbitrator for the determination of reparations, or restitution of
the damages and losses resulting from pollution.
P.D. No. 984 also empowered the commission to issue ex parte orders
directing the discontinuance or temporary suspension or cessation of operation
of an establishment or person generating sewage or wastes without the
necessity of prior public hearing whenever it 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 exceed the allowable standards
set by the commission.[27]
In 1987, Executive Order No. 192 was passed, reorganizing the DENR. It
transferred the power of the NPCC to the Environmental Management
Bureau[28] and created the PAB, under the Office of the Secretary, which
assumed the powers and functions of the NPCC with respect to the
adjudication of pollution cases under R.A. No. 3931 and P.D. No. 984.[29]
In Pollution Adjudication Board vs. Court of Appeals,[30] we stated that the
PAB is the very agency of the government with the task of determining
whether the effluents of a particular industrial establishment comply with or
violate applicable anti-pollution statutory and regulatory provisions.[31] We
also recognized its power to issue, ex parte, cease and desist orders, thus:
. . . under . . . Section 7(a) of P.D. No. 984, an ex parte cease and desist order
may be issued by the (PAB) (a) whenever the wastes discharged by an
establishment pose an “immediate threat to life, public health, safety or
welfare, or to animal or plant life,” or (b) whenever such discharges or wastes
exceed “the allowable standards set by the [NPCC].” . . . [I]t is not essential
that the Board prove that an “immediate threat to life, public health, safety or
welfare, or to animal or plant life” exists before an ex parte cease and desist
order may be issued. It is enough if the Board finds that the wastes
discharged do exceed “the allowable standards set by the [NPCC].” In respect
of discharges of wastes as to which allowable standards have been set by the
Commission, the Board may issue an ex parte cease and desist order when
there is prima-facie evidence of an establishment exceeding such allowable
standards. Where, however, the effluents or discharges have not yet been the
subject matter of allowable standards set by the Commission, then the Board
may act on an ex parte basis when it finds at least prima facie proof that the
wastewater or material involved presents an immediate threat to life, public
health, safety or welfare or to animal or plant life. . . .
. . .
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping continuous
discharge of pollutive and untreated effluents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation
over the ultimate correctness or propriety of such orders has run its full
course, including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant pollution
control statute and implementing regulations were enacted and promulgated in
the exercise of that pervasive, sovereign power to protect the safety, health,
and general welfare and comfort of the public, as well as the protection of
plant and animal life, commonly designated as the police power. It is a
constitutional commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public interests like those
here involved, through the exercise of police power. . . .[32]
In Laguna Lake Development Authority vs. Court of Appeals,[33] we also
pronounced that:
The matter of determining whether there is…pollution of the environment that
requires control, if not prohibition, of the operation of a business
establishment is essentially addressed to the Environmental Management
Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive
Order No. 192, series of 1987 has assumed the powers and functions of the
defunct National Pollution Control Commission created under Republic Act
No. 3931. Under said Executive Order, a Pollution Adjudication Board
(PAB) under the Office of the DENR Secretary now assumes the powers and
functions of the National Pollution Control Commission with respect to
adjudication of pollution cases.
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law
provides for another forum.[34]
Clearly, the claim of petitioners that their immediate recourse to the regular
courts is justified because the DENR is powerless to grant them proper relief
is without basis.
The Court of Appeals correctly found that the petitioners failed to exhaust
administrative remedies before going to court which renders their complaint
dismissible on the ground of lack of cause of action.
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
Callejo, Sr., and Chico-Nazario, JJ., concur.
Puno, (Chairman), J., on official leave.
Tinga, J., on leave.

Pollution Adjudication Board, petitioner vs. CA and Solar Textile
Finishing Corporation, respondents.
(G.R. No. 93891 | March 11, 1991)
FELICIANO, J.:
Petitioner Pollution Adjudication Board ("Board") asks us to review the
Decision and Resolution promulgated on 7 February 1990 and 10 May 1990,
respectively, by the Court of Appeals in C.A.-G R. No. SP 18821 entitled
"Solar Textile Finishing Corporation v. Pollution Adjudication Board." In that
Decision and Resolution, the Court of Appeals reversed an order of the
Regional Trial Court, Quezon City, Branch 77, in Civil Case No. Q-89-2287
dismissing private respondent Solar Textile Finishing Corporation's ("Solar")
petition for certiorari and remanded the case to the trial court for further
proceedings.
On 22 September 1988, petitioner Board issued an ex parte Order directing
Solar immediately to cease and desist from utilizing its wastewater pollution
source installations which were discharging untreated wastewater directly into
a canal leading to the adjacent Tullahan-Tinejeros River. The Order signed by
Hon. Fulgencio Factoran, Jr., as Board Chairman, reads in full as follows:
Respondent, Solar Textile Finishing Corporation with plant and place of
business at 999 General Pascual Avenue, Malabon, Metro Manila is involved
in bleaching, rinsing and dyeing textiles with wastewater of about 30 gpm.
being directly discharged untreated into the sewer. Based on findings in the
Inspections conducted on 05 November 1986 and 15 November 1986, the
volume of untreated wastewater discharged in the final out fall outside of the
plant's compound was even greater. The result of inspection conducted on 06
September 1988 showed that respondent's Wastewater Treatment Plant was
noted unoperational and the combined wastewater generated from its
operation was about 30 gallons per minute and 80% of the wastewater was
being directly discharged into a drainage canal leading to the Tullahan-
Tinejeros River by means of a by-pass and the remaining 20% was channelled
into the plant's existing Wastewater Treatment Plant (WTP). Result of the
analyses of the sample taken from the by-pass showed that the wastewater is
highly pollutive in terms of Color units, BOD and Suspended Solids, among
others. These acts of respondent in spite of directives to comply with the
requirements are clearly in violation of Section 8 of Presidential Decree No.
984 and Section 103 of its Implementing Rules and Regulations and the 1982
Effluent Regulations.
WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of its
Implementing Rules and Regulations, respondent is hereby ordered to cease
and desist from utilizing its wastewater pollution source installation and
discharging its untreated wastewater directly into the canal leading to the
Tullahan-Tinejeros River effective immediately upon receipt hereof and until
such time when it has fully complied with all the requirements and until
further orders from this Board.
SO ORDERED. 1
We note that the above Order was based on findings of several inspections of
Solar's plant:
a. inspections conducted on 5 November 1986 and 12 November
1986 by the National Pollution Control Commission ("NPCC"), the
predecessor of the Board ; 2 and
b. the inspection conducted on 6 September 1988 by the Department
of Environment and Natural Resources ("DENR").
The findings of these two (2) inspections were that Solar's wastewater
treatment plant was non-operational and that its plant generated about 30
gallons per minute of wastewater, 80% of which was being directly
discharged into a drainage canal leading to the Tullahan-Tinejeros River. The
remaining 20% of the wastewater was being channeled through Solar's non-
operational wastewater treatment plant. Chemical analysis of samples of
Solar's effluents showed the presence of pollutants on a level in excess of
what was permissible under P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26 September 1988. A
Writ of Execution issued by the Board was received by Solar on 31 March
1989.
Meantime, Solar filed a motion for reconsideration/appeal with prayer for stay
of execution of the Order dated 22 September 1988. Acting on this motion,
the Board issued an Order dated 24 April 1989 allowing Solar to operate
temporarily, to enable the Board to conduct another inspection and evaluation
of Solar's wastewater treatment facilities. In the same Order, the Board
directed the Regional Executive Director of the DENR/ NCR to conduct the
inspection and evaluation within thirty (30) days.
On 21 April 1989, however, Solar went to the Regional Trial Court of Quezon
City, Branch 77, on petition for certiorari with preliminary injunction against
the Board, the petition being docketed as Civil Case No. Q-89-2287.
On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two
(2) grounds, i.e., that appeal and not certiorari from the questioned Order of
the Board as well as the Writ of Execution was the proper remedy, and that
the Board's subsequent Order allowing Solar to operate temporarily had
rendered Solar's petition moot and academic.
Dissatisfied, Solar went on appeal to the Court of Appeals which, in the
Decision here assailed, reversed the Order of dismissal of the trial court and
remanded the case to that court for further proceedings. In addition, the Court
of Appeals declared the Writ of Execution null and void. At the same time, the
Court of Appeals said in the dispositive portion of its Decision that:
. . .. Still and all, this decision is without prejudice to whatever action the
appellee [Board] may take relative to the projected 'inspection and evaluation'
of appellant's [Solar's] water treatment facilities. 3
The Court of Appeals, in so ruling, held that certiorari was a proper remedy
since the Orders of petitioner Board may result in great and irreparable injury
to Solar; and that while the case might be moot and academic, "larger issues"
demanded that the question of due process be settled. Petitioner Board moved
for reconsideration, without success.
The Board is now before us on a Petition for Review basically arguing that:
1. its ex parte Order dated 22 September 1988 and the Writ of
Execution were issued in accordance with law and were not violative of the
requirements of due process; and
2. the ex parte Order and the Writ of Execution are not the proper
subjects of a petition for certiorari.
The only issue before us at this time is whether or not the Court of Appeals
erred in reversing the trial court on the ground that Solar had been denied due
process by the Board.
Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal
authority to issue ex parte orders to suspend the operations of an
establishment when there is prima facie evidence that such establishment is
discharging effluents or wastewater, the pollution level of which exceeds the
maximum permissible standards set by the NPCC (now, the Board). Petitioner
Board contends that the reports before it concerning the effluent discharges of
Solar into the Tullahan-Tinejeros River provided prima facie evidence of
violation by Solar of Section 5 of the 1982 Effluent Code.
Solar, on the other hand, contends that under the Board's own rules and
regulations, an ex parte order may issue only if the effluents discharged pose
an "immediate threat to life, public health, safety or welfare, or to animal and
plant life." In the instant case, according to Solar, the inspection reports before
the Board made no finding that Solar's wastewater discharged posed such a
threat.
The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984
authorized petitioner Board to issue ex parte cease and desist orders under the
following circumstances:
P.D. 984, Section 7, paragraph (a), provides:
(a) Public Hearing. . . . Provided, That whenever the Commission finds 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. The
said ex-parte order shall be immediately executory and shall remain in force
until said establishment or person prevents or abates the said pollution within
the allowable standards or modified or nullified by a competent court.
(Emphasis supplied)

We note that under the above-quoted portion of Section 7(a) of P.D. No. 984,
an ex parte cease and desist order may be issued by the Board (a) whenever
the wastes discharged by an establishment pose an "immediate threat to life,
public health, safety or welfare, or to animal or plant life," or (b) whenever
such discharges or wastes exceed "the allowable standards set by the
[NPCC]." On the one hand, it is not essential that the Board prove that an
"immediate threat to life, public health, safety or welfare, or to animal or plant
life" exists before an ex parte cease and desist order may be issued. It is
enough if the Board finds that the wastes discharged do exceed "the allowable
standards set by the [NPCC]." In respect of discharges of wastes as to which
allowable standards have been set by the Commission, the Board may issue an
ex parte cease and desist order when there is prima facie evidence of an
establishment exceeding such allowable standards. Where, however, the
effluents or discharges have not yet been the subject matter of allowable
standards set by the Commission, then the Board may act on an ex parte basis
when it finds at least prima facie proof that the wastewater or material
involved presents an "immediate threat to life, public health, safety or welfare
or to animal or plant life." Since the applicable standards set by the
Commission existing at any given time may well not cover every possible or
imaginable kind of effluent or waste discharge, the general standard of an
"immediate threat to life, public health, safety or welfare, or to animal and
plant life" remains necessary.
Upon the other hand, the Court must assume that the extant allowable
standards have been set by the Commission or Board precisely in order to
avoid or neutralize an "immediate threat to life, public health, safety or
welfare, or to animal or plant life.''
Section 5 of the Effluent Regulations of 1982 4 sets out the maximum
permissible levels of physical and chemical substances which effluents from
domestic wastewater treatment plants and industrial plants" must not exceed
"when discharged into bodies of water classified as Class A, B, C, D, SB and
SC in accordance with the 1978 NPCC Rules and Regulations." The waters of
Tullahan-Tinejeros River are classified as inland waters Class D under Section
68 of the 1978 NPCC Rules and Regulations 5 which in part provides that:
Sec. 68. Water Usage and Classification. — The quality of Philippine waters
shall be maintained in a safe and satisfactory condition according to their best
usages. For this purpose, all water shall be classified according to the
following beneficial usages:
(a) Fresh Surface Water
Classification Best usage
xxx xxx xxx
Class D For agriculture, irrigation, livestock
watering and industrial cooling and
processing.
xxx xxx xxx
(Emphases supplied)
The reports on the inspections carried on Solar's wastewater treatment
facilities on 5 and 12 November 1986 and 6 September 1988 set forth the
following Identical finding:
a. For legal action in [view of] implementing rules and regulations of
P.D. No. 984 and Section 5 of the Effluent Regulations of 1982. 6
Placing the maximum allowable standards set in Section 5 of the Effluent
Regulations of 1982 alongside the findings of the November 1986 and
September 1988 inspection reports, we get the following results:
"Inland November September
Waters 1986 1988
(Class C & D 7 Report 8 Report 9
Station 1 Station 1
a) Color in 100 a) Color units250 125
platinum (Apparent
cobalt Color)
b) pH 6-8.5 b) pH 9.3 8.7
c) Tempera- 40 c) Temperature
ture in °C (°C)
d) Phenols in 0.1 d) Phenols in
mg./1. mg.1
e) Suspended 75 e) Suspended 340 80
solids in solids in
mg./1. mg./1.
f) BOD in 80 f) BOD (5-day) 1,100
152
mg./1. mg./1
g) oil/Grease 10 g) Oil/Grease
h) Detergents 5 h) Detergents 2.93
in mg./1/" mg./1. MBAS
i) Dissolved 0
oxygen, mg./1.
j) Settleable 0.4 1.5
Matter, mg./1.
k) Total Dis 800 610
solved Solids
mg./1.
l) Total Solids 1,400 690
mg./1.
m) Turbidity
NTU / ppm, SiO 3 70
The November 1986 inspections report concluded that:
Records of the Commission show that the plant under its previous owner, Fine
Touch Finishing Corporation, was issued a Notice of Violation on 20
December 1985 directing same to cease and desist from conducting dyeing
operation until such time the waste treatment plant is already completed and
operational. The new owner Solar Textile Corporation informed the
Commission of the plant acquisition thru its letter dated March 1986 (sic).
The new owner was summoned to a hearing held on 13 October 1986 based
on the adverse findings during the inspection/water sampling test conducted
on 08 August 1986. As per instruction of the Legal Division a re-
inspection/sampling text should be conducted first before an appropriate legal
action is instituted; hence, this inspection.
Based on the above findings, it is clear that the new owner continuously
violates the directive of the Commission by undertaking dyeing operation
without completing first and operating its existing WTP. The analysis of
results on water samples taken showed that the untreated wastewater from the
firm pollutes our water resources. In this connection, it is recommended that
appropriate legal action be instituted immediately against the firm. . . . 10
The September 1988 inspection report's conclusions were:

1. The plant was undertaking dyeing, bleaching and rinsing
operations during the inspection. The combined wastewater generated from
the said operations was estimated at about 30 gallons per minute. About 80%
of the wastewater was traced directly discharged into a drainage canal leading
to the Tullahan-Tinejeros river by means of a bypass. The remaining 20% was
channeled into the plant's existing wastewater treatment plant (WTP).
2. The WTP was noted not yet fully operational- some accessories
were not yet installed. Only the sump pit and the holding/collecting tank are
functional but appeared seldom used. The wastewater mentioned channeled
was noted held indefinitely into the collection tank for primary treatment.
There was no effluent discharge [from such collection tank].
3. A sample from the bypass wastewater was collected for laboratory
analyses. Result of the analyses show that the bypass wastewater is polluted in
terms of color units, BOD and suspended solids, among others. (Please see
attached laboratory resul .) 11
From the foregoing reports, it is clear to this Court that there was at least
prima facie evidence before the Board that the effluents emanating from
Solar's plant exceeded the maximum allowable levels of physical and
chemical substances set by the NPCC and that accordingly there was adequate
basis supporting the ex parte cease and desist order issued by the Board. It is
also well to note that the previous owner of the plant facility Fine Touch
Finishing Corporation had been issued a Notice of Violation on 20 December
1985 directing it to cease and refrain from carrying out dyeing operations until
the water treatment plant was completed and operational. Solar, the new
owner, informed the NPCC of the acquisition of the plant on March 1986.
Solar was summoned by the NPCC to a hearing on 13 October 1986 based on
the results of the sampling test conducted by the NPCC on 8 August 1986.
Petitioner Board refrained from issuing an ex parte cease and desist order until
after the November 1986 and September 1988 re-inspections were conducted
and the violation of applicable standards was confirmed. In other words,
petitioner Board appears to have been remarkably forbearing in its efforts to
enforce the applicable standards vis-a-vis Solar. Solar, on the other hand,
seemed very casual about its continued discharge of untreated, pollutive
effluents into the Tullahan- Tinerejos River, presumably loath to spend the
money necessary to put its Wastewater Treatment Plant ("WTP") in an
operating condition.
In this connection, we note that in Technology Developers, Inc. v. Court of
appeals, et al., 12 the Court very recently upheld the summary closure ordered
by the Acting Mayor of Sta. Maria, Bulacan, of a pollution-causing
establishment, after finding that the records showed that:
1. No mayor's permit had been secured. While it is true that the
matter of determining whether there is a pollution of the environment that
requires control if not prohibition of the operation of a business is essentially
addressed to the then National Pollution Control Commission of the Ministry
of Human Settlements, now the Environmental Management Bureau of the
Department of Environment and Natural Resources, it must be recognized that
the mayor of a town has as much responsibility to protect its inhabitants from
pollution, and by virtue of his police power, he may deny the application for a
permit to operate a business or otherwise close the same unless appropriate
measures are taken to control and/or avoid injury to the health of the residents
of the community from the emission in the operation of the business.
2. The Acting Mayor, in a letter of February l6, 1989, called the
attention of petitioner to the pollution emitted by the fumes of its plant whose
offensive odor "not only pollute the air in the locality but also affect the health
of the residents in the area," so that petitioner was ordered to stop its operation
until further orders and it was required to bring the following:
xxx xxx xxx
(3) Region III-Department of Environment and Natural Resources
Anti-Pollution permit. (Annex A-2, petition)
3. This action of the Acting Mayor was in response to the complaint
of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the
Provincial Governor through channels (Annex A-B, petition).. . .
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report of December 8,
1988 observed that the fumes emitted by the plant of petitioner goes directly
to the surrounding houses and that no proper air pollution device has been
installed. (Annex A-9, petition)
xxx xxx xxx
6. While petitioner was able to present a temporary permit to operate
by the then National Pollution Control Commission on December 15,1987,
the permit was good only up to May 25,1988 (Annex A-12, petition).
Petitioner had not exerted any effort to extend or validate its permit much less
to install any device to control the pollution and prevent any hazard to the
health of the residents of the community."
In the instant case, the ex parte cease and desist Order was issued not by a
local government official but by the Pollution Adjudication Board, the very
agency of the Government charged with the task of determining whether the
effluents of a particular industrial establishment comply with or violate
applicable anti-pollution statutory and regulatory provisions.
situations like that here presented precisely because stopping the continuous
here involved, through the exercise of police power. The Board's ex parte
Order and Writ of Execution would, of course, have compelled Solar
temporarily to stop its plant operations, a state of affairs Solar could in any
case have avoided by simply absorbing the bother and burden of putting its
WTP on an operational basis. Industrial establishments are not
constitutionally entitled to reduce their capitals costs and operating expenses
and to increase their profits by imposing upon the public threats and risks to
its safety, health, general welfare and comfort, by disregarding the
requirements of anti- pollution statutes and their implementing regulations.
It should perhaps be made clear the Court is not here saying that the
correctness of the ex parte Order and Writ of Execution may not be contested
by Solar in a hearing before the Board itself. Where the establishment affected
by an ex parte cease and desist order contests the correctness of the prima
facie findings of the Board, the Board must hold a public hearing where such
establishment would have an opportunity to controvert the basis of such ex
parte order. That such an opportunity is subsequently available is really all
that is required by the due process clause of the Constitution in situations like
that we have here. The Board's decision rendered after the public hearing may
then be tested judicially by an appeal to the Court of Appeals in accordance
with Section 7(c) of P.D. No. 984 and Section 42 of the Implementing Rules
and Regulations. A subsequent public hearing is precisely what Solar should
have sought instead of going to court to seek nullification of the Board's Order
and Writ of Execution and instead of appealing to the Court of Appeals. It will
be recalled the at the Board in fact gave Solar authority temporarily to
continue operations until still another inspection of its wastewater treatment
facilities and then another analysis of effluent samples could be taken and
evaluated.
Solar claims finally that the petition for certiorari was the proper remedy as
the questioned Order and Writ of Execution issued by the Board were patent
nullities. Since we have concluded that the Order and Writ of Execution were
entirely within the lawful authority of petitioner Board, the trial court did not
err when it dismissed Solar's petition for certiorari. It follows that the proper
remedy was an appeal from the trial court to the Court of Appeals, as Solar
did in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE and the
Decision of the Court of Appeals dated 7 February 1990 and its Resolution
dated 10 May 1990 in A.C.-G.R. No. SP 18821 are hereby SET ASIDE. The
Order of petitioner Board dated 22 September 1988 and the Writ of
Execution, as well as the decision of the trial court dated 21 July 1989, are
hereby REINSTATED, without prejudice to the right of Solar to contest the
correctness of the basis of the Board's Order and Writ of Execution at a public
hearing before the Board.

Laguna Lake Development Authority, petitioner, vs. CA, Manuel Jn.
Serapio, Presiding Judge, Caloocan City, Macario A. Asistio, Jr., and/or the
City Government of Caloocan, respondents.
(G.R. No. 110120 | March 16, 1994)
ROMERO, J.:
The clash between the responsibility of the City Government of Caloocan to
dispose off the 350 tons of garbage it collects daily and the growing concern
and sensitivity to a pollution-free environment of the residents of Barangay
Camarin, Tala Estate, Caloocan City where these tons of garbage are dumped
everyday is the hub of this controversy elevated by the protagonists to the
Laguna Lake Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court by
Laguna Lake Development Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution
of November 10, 1992, this Court referred G.R. No. 107542 to the Court of
Appeals for appropriate disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision 1 promulgated on January 29,
1993 ruled that the LLDA has no power and authority to issue a cease and
desist order enjoining the dumping of garbage in Barangay Camarin, Tala
Estate, Caloocan City. The LLDA now seeks, in this petition, a review of the
decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes
Parish, Barangay Camarin, Caloocan City, filed a letter-complaint 2 with the
Laguna Lake Development Authority seeking to stop the operation of the 8.6-
hectare open garbage dumpsite in Tala Estate, Barangay Camarin, Caloocan
City due to its harmful effects on the health of the residents and the possibility
of pollution of the water content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation,
monitoring and test sampling of the leachate 3 that seeps from said dumpsite
to the nearby creek which is a tributary of the Marilao River. The LLDA
Legal and Technical personnel found that the City Government of Caloocan
was maintaining an open dumpsite at the Camarin area without first securing
an Environmental Compliance Certificate (ECC) from the Environmental
Management Bureau (EMB) of the Department of Environment and Natural
Resources, as required under Presidential Decree No. 1586, 4 and clearance
from LLDA as required under Republic Act No. 4850, 5 as amended by
Presidential Decree No. 813 and Executive Order No. 927, series of 1983. 6
After a public hearing conducted on December 4, 1991, the LLDA, acting on
the complaint of Task Force Camarin Dumpsite, found that the water collected
from the leachate and the receiving streams could considerably affect the
quality, in turn, of the receiving waters since it indicates the presence of
bacteria, other than coliform, which may have contaminated the sample during
collection or handling. 7 On December 5, 1991, the LLDA issued a Cease and
Desist Order 8 ordering the City Government of Caloocan, Metropolitan
Manila Authority, their contractors, and other entities, to completely halt, stop
and desist from dumping any form or kind of garbage and other waste matter
at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government of
Caloocan. However, sometime in August 1992 the dumping operation was
resumed after a meeting held in July 1992 among the City Government of
Caloocan, the representatives of Task Force Camarin Dumpsite and LLDA at
the Office of Environmental Management Bureau Director Rodrigo U.
Fuentes failed to settle the problem.
After an investigation by its team of legal and technical personnel on August
14, 1992, the LLDA issued another order reiterating the December 5, 1991,
order and issued an Alias Cease and Desist Order enjoining the City
Government of Caloocan from continuing its dumping operations at the
Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine
National Police, enforced its Alias Cease and Desist Order by prohibiting the
entry of all garbage dump trucks into the Tala Estate, Camarin area being
utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on September
17, 1992 with the LLDA, the City Government of Caloocan filed with the
Regional Trial Court of Caloocan City an action for the declaration of nullity
of the cease and desist order with prayer for the issuance of writ of injunction,
docketed as Civil Case No. C-15598. In its complaint, the City Government of
Caloocan sought to be declared as the sole authority empowered to promote
the health and safety and enhance the right of the people in Caloocan City to a
balanced ecology within its territorial jurisdiction. 9
On September 25, 1992, the Executive Judge of the Regional Trial Court of
Caloocan City issued a temporary restraining order enjoining the LLDA from
enforcing its cease and desist order. Subsequently, the case was raffled to the
Regional Trial Court, Branch 126 of Caloocan which, at the time, was
presided over by Judge Manuel Jn. Serapio of the Regional Trial Court,
Branch 127, the pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the
ground, among others, that under Republic Act No. 3931, as amended by
Presidential Decree No. 984, otherwise known as the Pollution Control Law,
the cease and desist order issued by it which is the subject matter of the
complaint is reviewable both upon the law and the facts of the case by the
Court of Appeals and not by the Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating
Civil Case No. C-15598 with Civil Case No. C-15580, an earlier case filed by
the Task Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon.
Macario Asistio." The LLDA, however, maintained during the trial that the
foregoing cases, being independent of each other, should have been treated
separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to
dismiss, issued in the consolidated cases an order 11 denying LLDA's motion
to dismiss and granting the issuance of a writ of preliminary injunction
enjoining the LLDA, its agent and all persons acting for and on its behalf,
from enforcing or implementing its cease and desist order which prevents
plaintiff City of Caloocan from dumping garbage at the Camarin dumpsite
during the pendency of this case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition
and injunction with prayer for restraining order with the Supreme Court,
docketed as G.R. No. 107542, seeking to nullify the aforesaid order dated
October 16, 1992 issued by the Regional Trial Court, Branch 127 of Caloocan
City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution 12 on November 10,
1992 referring the case to the Court of Appeals for proper disposition and at
the same time, without giving due course to the petition, required the
respondents to comment on the petition and file the same with the Court of
Appeals within ten (10) days from notice. In the meantime, the Court issued a
temporary restraining order, effective immediately and continuing until
further orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio,
Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease
and desist from exercising jurisdiction over the case for declaration of nullity
of the cease and desist order issued by the Laguna Lake Development
Authority (LLDA); and (2) City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its garbage at the
Tala Estate, Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr.
filed on November 12, 1992 a motion for reconsideration and/or to
quash/recall the temporary restraining order and an urgent motion for
reconsideration alleging that ". . . in view of the calamitous situation that
would arise if the respondent city government fails to collect 350 tons of
garbage daily for lack of dumpsite (i)t is therefore, imperative that the issue be
resolved with dispatch or with sufficient leeway to allow the respondents to
find alternative solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution 13 directing the Court
of Appeals to immediately set the case for hearing for the purpose of
determining whether or not the temporary restraining order issued by the
Court should be lifted and what conditions, if any, may be required if it is to
be so lifted or whether the restraining order should be maintained or converted
into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at 10:00
in the morning at the Hearing Room, 3rd Floor, New Building, Court of
Appeals. 14 After the oral argument, a conference was set on December 8,
1992 at 10:00 o'clock in the morning where the Mayor of Caloocan City, the
General Manager of LLDA, the Secretary of DENR or his duly authorized
representative and the Secretary of DILG or his duly authorized representative
were required to appear.

It was agreed at the conference that the LLDA had until December 15, 1992 to
finish its study and review of respondent's technical plan with respect to the
dumping of its garbage and in the event of a rejection of respondent's
technical plan or a failure of settlement, the parties will submit within 10 days
from notice their respective memoranda on the merits of the case, after which
the petition shall be deemed submitted for resolution. 15 Notwithstanding
such efforts, the parties failed to settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding
that: (1) the Regional Trial Court has no jurisdiction on appeal to try, hear and
decide the action for annulment of LLDA's cease and desist order, including
the issuance of a temporary restraining order and preliminary injunction in
relation thereto, since appeal therefrom is within the exclusive and appellate
jurisdiction of the Court of Appeals under Section 9, par. (3), of Batas
Pambansa Blg. 129; and (2) the Laguna Lake Development Authority has no
power and authority to issue a cease and desist order under its enabling law,
Republic Act No. 4850, as amended by P.D. No. 813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the
preliminary injunction issued in the said case was set aside; the cease and
desist order of LLDA was likewise set aside and the temporary restraining
order enjoining the City Mayor of Caloocan and/or the City Government of
Caloocan to cease and desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City was lifted, subject, however, to the
condition that any future dumping of garbage in said area, shall be in
conformity with the procedure and protective works contained in the proposal
attached to the records of this case and found on pages 152-160 of the Rollo,
which was thereby adopted by reference and made an integral part of the
decision, until the corresponding restraining and/or injunctive relief is granted
by the proper Court upon LLDA's institution of the necessary legal
proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for
review on certiorari, now docketed as G.R. No. 110120, with prayer that the
temporary restraining order lifted by the Court of Appeals be re-issued until
after final determination by this Court of the issue on the proper interpretation
of the powers and authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining
the City Mayor of Caloocan and/or the City Government of Caloocan to cease
and desist from dumping its garbage at the Tala Estate, Barangay Camarin,
Caloocan City, effective as of this date and containing until otherwise ordered
by the Court.
It is significant to note that while both parties in this case agree on the need to
protect the environment and to maintain the ecological balance of the
surrounding areas of the Camarin open dumpsite, the question as to which
agency can lawfully exercise jurisdiction over the matter remains highly open
to question.
The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local
Government Code, 17 to determine the effects of the operation of the
dumpsite on the ecological balance and to see that such balance is maintained.
On the basis of said contention, it questioned, from the inception of the
dispute before the Regional Trial Court of Caloocan City, the power and
authority of the LLDA to issue a cease and desist order enjoining the dumping
of garbage in the Barangay Camarin over which the City Government of
Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the
theory that Section 7 of Presidential Decree No. 984, otherwise known as the
Pollution Control law, authorizing the defunct National Pollution Control
Commission to issue an ex-parte cease and desist order was not incorporated
in Presidential Decree No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic
Act No. 4850, as amended, the LLDA is instead required "to institute the
necessary legal proceeding against any person who shall commence to
implement or continue implementation of any project, plan or program within
the Laguna de Bay region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned
ruling of the Court of Appeals, contending that, as an administrative agency
which was granted regulatory and adjudicatory powers and functions by
Republic Act No. 4850 and its amendatory laws, Presidential Decree No. 813
and Executive Order No. 927, series of 1983, it is invested with the power and
authority to issue a cease and desist order pursuant to Section 4 par. (c), (d),
(e), (f) and (g) of Executive Order No. 927 series of 1983 which provides,
thus:
Sec. 4. Additional Powers and Functions. The authority shall have the
following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the provisions
of this Executive Order and its implementing rules and regulations only after
proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance of
pollution specifying the conditions and the time within which such
discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of pollution, for
the discharge of sewage, industrial waste, or for the installation or operation of
sewage works and industrial disposal system or parts thereof.
(f) After due notice and hearing, the Authority may also revoke,
suspend or modify any permit issued under this Order whenever the same is
necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of enforcing this
Executive Order and its implementing rules and regulations and the orders and
decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983,
which granted administrative quasi-judicial functions to LLDA on pollution
abatement cases.
In light of the relevant environmental protection laws cited which are
applicable in this case, and the corresponding overlapping jurisdiction of
government agencies implementing these laws, the resolution of the issue of
whether or not the LLDA has the authority and power to issue an order which,
in its nature and effect was injunctive, necessarily requires a determination of
the threshold question: Does the Laguna Lake Development Authority, under
its Charter and its amendatory laws, have the authority to entertain the
complaint against the dumping of garbage in the open dumpsite in Barangay
Camarin authorized by the City Government of Caloocan which is allegedly
endangering the health, safety, and welfare of the residents therein and the
sanitation and quality of the water in the area brought about by exposure to
pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment
that requires control, if not prohibition, of the operation of a business
establishment is essentially addressed to the Environmental Management
Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive
Order No. 192, series of 1987, 18 has assumed the powers and functions of
the defunct National Pollution Control Commission created under Republic
Act No. 3931. Under said Executive Order, a Pollution Adjudication Board
(PAB) under the Office of the DENR Secretary now assumes the powers and
functions of the National Pollution Control Commission with respect to
adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law
provides for another forum. It must be recognized in this regard that the
LLDA, as a specialized administrative agency, is specifically mandated under
Republic Act No. 4850 and its amendatory laws to carry out and make
effective the declared national policy 20 of promoting and accelerating the
development and balanced growth of the Laguna Lake area and the
surrounding provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan 21 with due regard and adequate
provisions for environmental management and control, preservation of the
quality of human life and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution. Under such a broad grant
and power and authority, the LLDA, by virtue of its special charter, obviously
has the responsibility to protect the inhabitants of the Laguna Lake region
from the deleterious effects of pollutants emanating from the discharge of
wastes from the surrounding areas. In carrying out the aforementioned
declared policy, the LLDA is mandated, among others, to pass upon and
approve or disapprove all plans, programs, and projects proposed by local
government offices/agencies within the region, public corporations, and

private persons or enterprises where such plans, programs and/or projects are
related to those of the LLDA for the development of the region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of
Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed its
letter-complaint before the LLDA, the latter's jurisdiction under its charter
was validly invoked by complainant on the basis of its allegation that the open
dumpsite project of the City Government of Caloocan in Barangay Camarin
was undertaken without a clearance from the LLDA, as required under
Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813
and Executive Order No. 927. While there is also an allegation that the said
project was without an Environmental Compliance Certificate from the
Environmental Management Bureau (EMB) of the DENR, the primary
jurisdiction of the LLDA over this case was recognized by the Environmental
Management Bureau of the DENR when the latter acted as intermediary at the
meeting among the representatives of the City Government of Caloocan, Task
Force Camarin Dumpsite and LLDA sometime in July 1992 to discuss the
possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to
the following issue: Does the LLDA have the power and authority to issue a
"cease and desist" order under Republic Act No. 4850 and its amendatory
laws, on the basis of the facts presented in this case, enjoining the dumping of
garbage in Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City
Government of Caloocan to stop dumping its garbage in the Camarin open
dumpsite found by the LLDA to have been done in violation of Republic Act
No. 4850, as amended, and other relevant environment laws, 23 cannot be
stamped as an unauthorized exercise by the LLDA of injunctive powers. By
its express terms, Republic Act No. 4850, as amended by P.D. No. 813 and
Executive Order No. 927, series of 1983, authorizes the LLDA to "make, alter
or modify order requiring the discontinuance or pollution." 24 (Emphasis
supplied) Section 4, par. (d) explicitly authorizes the LLDA to make whatever
order may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and ex-
parte cease and desist order" in a language, as suggested by the City
Government of Caloocan, similar to the express grant to the defunct National
Pollution Control Commission under Section 7 of P.D. No. 984 which,
admittedly was not reproduced in P.D. No. 813 and E.O. No. 927, series of
1983. However, it would be a mistake to draw therefrom the conclusion that
there is a denial of the power to issue the order in question when the power "to
make, alter or modify orders requiring the discontinuance of pollution" is
expressly and clearly bestowed upon the LLDA by Executive Order No. 927,
series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order" were
not expressly conferred by law, there is jurisprudence enough to the effect that
the rule granting such authority need not necessarily be express. 25 While it is
a fundamental rule that an administrative agency has only such powers as are
expressly granted to it by law, it is likewise a settled rule that an
administrative agency has also such powers as are necessarily implied in the
exercise of its express powers. 26 In the exercise, therefore, of its express
powers under its charter as a regulatory and quasi-judicial body with respect
to pollution cases in the Laguna Lake region, the authority of the LLDA to
issue a "cease and desist order" is, perforce, implied. Otherwise, it may well
be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v.
Court of Appeals, et al., 27 the Court ruled that the Pollution Adjudication
Board (PAB) has the power to issue an ex-parte cease and desist order when
there is prima facie evidence of an establishment exceeding the allowable
standards set by the anti-pollution laws of the country. The ponente, Associate
Justice Florentino P. Feliciano, declared:
situations like that here presented precisely because stopping the continuous
here involved, through the exercise of police power. . . .
The immediate response to the demands of "the necessities of protecting vital
public interests" gives vitality to the statement on ecology embodied in the
Declaration of Principles and State Policies or the 1987 Constitution. Article
II, Section 16 which provides:
The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
As a constitutionally guaranteed right of every person, it carries the correlative
duty of non-impairment. This is but in consonance with the declared policy of
the state "to protect and promote the right to health of the people and instill
health consciousness among them." 28 It is to be borne in mind that the
Philippines is party to the Universal Declaration of Human Rights and the
Alma Conference Declaration of 1978 which recognize health as a
fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a
practical matter of procedure under the circumstances of the case, is a proper
exercise of its power and authority under its charter and its amendatory laws.
Had the cease and desist order issued by the LLDA been complied with by the
City Government of Caloocan as it did in the first instance, no further legal
steps would have been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of
conferring upon the LLDA the means of directly enforcing such orders, has
provided under its Section 4 (d) the power to institute "necessary legal
proceeding against any person who shall commence to implement or continue
implementation of any project, plan or program within the Laguna de Bay
region without previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently
broad powers in the regulation of all projects initiated in the Laguna Lake
region, whether by the government or the private sector, insofar as the
implementation of these projects is concerned. It was meant to deal with cases
which might possibly arise where decisions or orders issued pursuant to the
exercise of such broad powers may not be obeyed, resulting in the thwarting
of its laudabe objective. To meet such contingencies, then the writs of
mandamus and injunction which are beyond the power of the LLDA to issue,
may be sought from the proper courts.
Insofar as the implementation of relevant anti-pollution laws in the Laguna
Lake region and its surrounding provinces, cities and towns are concerned, the
Court will not dwell further on the related issues raised which are more
appropriately addressed to an administrative agency with the special
knowledge and expertise of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining order
issued by the Court on July 19, 1993 enjoining the City Mayor of Caloocan
and/or the City Government of Caloocan from dumping their garbage at the
Tala Estate, Barangay Camarin, Caloocan City is hereby made permanent.

Republic of the Philippines, represented by the Pollution Adjudication
Board, petitioner, vs. Marcopper Mining Corporation, respondent.
(G.R. No. 137174 | July 10, 2000)
GONZAGA-REYES, J.:
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.
SO ORDERED.”[9]
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.
SO ORDERED.”[10]
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.
SO ORDERED.”[14]
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:
SEC. 6. Powers and Functions. The Commission shall have the following
powers and functions:
(e) 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.
(f) Make, alter or modify orders requiring the discontinuance of pollution
specifying the conditions and the time within which such discontinuance must
be accomplished.

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