WATER IS THE DRIVING FORCE OF ALL NATURE.

Leonardo Da Vinci
THE PHILIPPINE ARCHIPELAGO
An archipelagic
country consisting of
7, 641 islands

• Has an area of
300,000 square
kilometers

• Politically divided
into 17 regions

• Abundantly
endowed with water
resources
Inland Freshwater
• Rivers
• 18 major river basins (at
least 1,400 sq km drainage
area)
• 421 principal rivers (less
than 1,400 sq km drainage
area)
• 296 principal rivers
classified as of 2013 (70%)
 MAJOR RIVER BASINS
River Basin Region Drainage Area
(sq. km.)

Cagayan River Cagayan Valley 25,649

Mindanao River Southern Mindanao 23,169
Agusan River Northern Mindanao 10,921
Pampanga River Central Luzon 9,759
Agno River Central Luzon 5,962
Abra River Ilocos 5,125
Pasig-Laguna Lake Southern Luzon 4,678
Bicol River Bicol 3,771
Abulug River Cagayan Valley 3,372
 As a tropical country, rainfall in
the Philippines ranges from 1000 to
4000 mm per year of which 1,000-
2,000 mm are collected as runoff by a
natural topography of more than 421
principal river basins, some 59 natural
lakes and numerous small streams,
with significant variation from one
area to another due to the direction
of the moisture-bearing winds and
the location of the mountain ranges.
Baguio-Benguet
Average annual rainfall
is 2297 mm, or 90.43
inches
At 1 mm = .0393 inch,
one inch of rain falling
on 1 acre (4046.86
sqm) of ground is equal
to about 27,154 gallons
and weighs about 113
tons.
STATE OF PHILIPPINE
WATERS:
HOW BAD?
CAUSES OF WATER POLLUTION
 Greenpeace reports that the water pollution in
the Philippines is mostly wastewater from the
following sources:
 Industrial: The metal varies according to industry
— lead, mercury, chromium, cadmium and
cyanide.
 Agricultural: Organic — decayed plants, dead
animals, livestock manure, soil runoff; and non-
organic — pesticides and fertilizers.
 Domestic sewage: Contains pathogens that
threaten human health and life.
 Other sources: Oil, mine or chemical spills and
illegal dumping in or near water.
WATER POLLUTION
LEGAL RESPONSES
WATER POLLUTION:
Water and water pollution legislation
in the Philippines.
 1987 Constitution of the Philippines
◦ The Constitution provides that all waters are
owned by the State and, as such, all
exploration, development and utilization of
water resources shall be under the full
control and supervision of the State; also
provides that in cases of water rights for
irrigation, water supply, fisheries or industrial
uses other than development of waterpower,
beneficial use may be the measure and limit of
the grant.
Water and water pollution
legislation in the Philippines.
 Presidential Decree No. 1067, as amended
(“Water Code of the Philippines of 1976”)
◦ The Water Code governs the use and ownership
of water resources; requires any person
appropriating or using natural bodies of water to
secure a water permit. It also prohibits any
person from building any works that may produce
dangerous or noxious substances or performing
any act which may result in the introduction of
sewage, industrial waste, or any pollutant into any
source of water supply without the prior
permission of the Environmental Management
Board (“EMB”).
Water and water pollution
legislation in the Philippines.
 Presidential Decree No. 979 (Marine Pollution Decree of
1976)
◦ The Marine Pollution decree No. 979 declares a national policy
prevention and control of the pollution of seas by the dumping
of wastes and other matter which create hazards to human
health, harm living resources and marine life, damage amenities,
or interfere with the legitimate uses of the sea within the
territorial jurisdiction of the Philippines. It likewise punishes
specific acts of water pollution. Prohibits discharge of any
organic or inorganic matter or any substance in gaseous or liquid
form that shall cause water, air or land pollution and requires a
permit for the construction, installation or operation of any
industrial or commercial establishment, the operation of which
would cause an increase in the discharge of waste directly into
water, air or land.
Water and water pollution
legislation in the Philippines.
 Republic Act No. 7942, as amended (Philippine Mining Act of
1995)
◦ Section 73 of the Act provides that a contractor shall have water rights
for mining operations upon approval of its application with the
appropriate government agency in accordance with existing water laws,
rules and regulations. The same section provides that the Government
reserves the right to regulate water rights and the reasonable and
equitable distribution of water supply so as to prevent the monopoly of
the use thereof.

 DENR Administrative Order No. 21, s. 2010 (Implementing

Rules and Regulations of the Philippine Mining Act)
◦ Section 167 of the IRR provides that the quality of surface and ground
water emanating from the exploration or contract/lease areas shall be
maintained at acceptable levels.
Water and water pollution
legislation in the Philippines.
 Republic Act No. 9275, as amended (“Philippine Clean Water
Act of 2004”)
◦ The Clean Water Act provides for a comprehensive water quality
management in all water bodies, water quality standards and
regulations, and civil liability and penalties for violations. It prohibits
the discharge of any substance in any form that would cause
pollution of the ground water or any other body of water.

 DENR Administrative Order No. 10, s. 2005 (Implementing

Rules and Regulations of the Philippine Clean Water Act of
2004)
◦ Requires any person who will discharge industrial or commercial
wastewater into Philippine waters to secure a wastewater discharge
permit from the Regional Office of the EMB and to pay a
wastewater discharge permit fee.
 Water and water pollution legislation
in the Philippines.
 Presidential Decree No. 1586 (Environmental Impact Statement
System) and its Implementing Rules and Regulations DENR
Administrative Order No. 2003-30
◦ Requires proponents carrying out environmentally critical projects, such as
mining projects, to obtain an environmental compliance certificate (“ECC”)
prior to the commencement of the project.

 Ecological Solid Waste Management Act 2001

◦ Prohibits construction or operation of any landfills or waste disposal
facility on any area or portion of an aquifer, water reservoir or watershed

 Republic Act No. 7160, as amended (“Local Government Code of

1991”)
◦ Requires the national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of
any project or program that may cause pollution, climatic change, depletion
of non-renewable resources, among others, to consult with the local
government units, nongovernmental organizations, and other sectors
concerned.
Water and water pollution legislation
in the Philippines.
 Republic Act No. 9003 (“Ecological Solid Waste Management Act of
2000”)
◦ Prohibits dumping of waste matters in public places, such as roads, sidewalks, canals,
esteros, or parks, and the undertaking of activities in violation of sanitation operations.

 DENR Administrative Order No. 2015-02

◦ Harmonization of the Implementation of the Philippine Environmental Impact
Statement System and the Philippine Mining Act of 1995 in Relation to Mining Projects

 DENR Memorandum Order No. 99-32 s. 1999

◦ Policy Guidelines and Standards for Mine Wastes and Mill Tailings Management

 DENR Administrative Order No. 34, s. 1990

◦ Provides guidelines for Water Usage and Classification and Water Quality Criteria. Its
main objective is to maintain the minimum conditions necessary to assure the
suitability of water for its designated use or classification.

 DENR Administrative Order No. 35, s. 1990

◦ Provides guidelines regarding industrial and municipal wastewater effluents.
WATER RESOURCES
THE MINING INDUSTRY
WATER USES IN MINING
 Mining operations use water for mineral
processing and metal recovery, controlling
dust, and meeting the needs of workers on
site.
 The amount of water required by a mine
varies depending on its size, the mineral
being extracted, and the extraction process
used. For instance, metal mines that
chemically process ore to concentrate
metals such as copper and gold use much
more water than non-metal mines such as
coal, salt, or gravel mines.
PHILEX MINING CORPORATION
 Formed on July 19, 1955
 Listed in the Philippine Stock Exchange in
1956
 Organized into two main business
groupings: the mining business under
Philex Mining Corporation, and the
energy and hydrocarbon business under
Philex Petroleum Corporation.
 Biggest mining company in the Philippines
BENGUET ITOGON AND TUBA

Philex contributes around PhP 6M per quarter to the revenue

collections of the municipalities of Itogon and Tuba
PADCAL MINE
 has been operating since 1958,
 is the first underground block cave
operation in the Far East.
 is under 12 mineral holdings with an
aggregate 95 hectares in Benguet
Province, which are subject to royalty
agreements with claim owners.
PADCAL MINE
 produces copper
concentrates containing
copper, gold and silver. A
majority of the copper
concentrates are shipped
to Saganoseki, Japan for
smelting by Pan Pacific
Copper Company
Limited, a joint venture
company between
Nippon Mining Co. Ltd.
and Mitsui Mining and
Smelting Co. Ltd.
WHAT HAPPENED?
 July, 2012 monsoon season began with
several weeks of continuous rains
 August 1, 2012 Philex informed EMB CAR
of mine tailings dam breach
 August 2, DENR Secretary Ramon Paje
immediately issued Suspension Order
 EMB-CAR conducted immediate
investigation
INITIAL FINDINGS
 The MGB estimated that 20.6M metric
tons of toxic mine tailings spilled
 that is 1,300% higher than the Marcopper
accident in Boac, Marinduque of 1.6M
metric tons.
 After 10 years of the accident, the Boac
River is still dead. Recent studies showed
that coastal sediments near the river
outflow contains high amount of copper,
manganese, lead and zinc.
WHAT HAPPENED?
FACT-FINDING
INVESTIGATION
MULTI-AGENCY/ MULTI-SECTORAL
EFFORTS
 AFTERMATH

VIEW OF THE TAILINGS POND

 AFTERMATH

THE SINKHOLE IN THE TAILINGS POND

CAPACITY: PRIOR TO BREACH CAPACITY: POST BREACH

TAILINGS DAM
Tailings pond No. 3 – Prior to Breach Tailings Pond No. 3 – Post Breach

DIAGRAM OF TAILINGS POND

 AFTERMATH

THE SHATTERED PENSTOCK

 AFTERMATH

9 METER CONCRETE SPHERES BEING THROWN INTO

THE POND TO PLUG HOLE
SANCTIONS
SANCTIONS
SANCTIONS
SANCTIONS
CONSEQUENCES: PHILEX
CONSEQUENCES:
COMMUNITIES
 Barangay Dalupirip, Itogon affected by the
mining spill: sitios Calaguian, Tayum and
Pangbasan, and claimed that around 30
families were affected.
 residents reported damages to property
such as damaged houses and plastic water
pipes, their fishing boats flowed into the
river, the drowned goats and livestock.
 AFTERMATH

FISHERMAN TRYING TO PADDLE HIS BOAT ALONG

BALOG RIVER
CONSEQUENCES:
COMMUNITIES
 said that toxic wastes can be seen in the
dried and poisoned plants, trees and
branches where effluents flowed. Mining
wastes include sand and minerals. Mutant
tilapia are found in the pond; they looked
different, with big head and small body, which
the workers eat.
 the mining spill had negative effects on the
livelihood of the people who mainly depend
on fishing and gold panning in the river.
 AFTERMATH

RESIDENTS OF AMPUCAO BRGY, ITOGON, BENGUET

 AFTERMATH

BALOG RIVER
CONSEQUENCES:
COMMUNITIES
 BFAR collected samples for lab testing
 Six fish samples for tilapia and carp were
taken on August 6 from a depth of 50
meters in the 3 stations of San Roque
Dam: spillway, middle and headwaters.
 The tests were positive for presence of
five (5) heavy metals: lead, arsenic, copper,
cadmium and mercury.
 AFTERMATH

AGNO RIVER POST-SPILL

 AFTERMATH

WATER collected from near the San Roque dam in

Pangasinan, seen above, were grey and dense
BUT:
NOT A SINGLE

CRIMINAL CASE
THE PHILEX
MINE TAILINGS
SPILL
BUILDING A CASE
FOR WATER POLLUTION
AS BOTH AN ENVIRONMENTAL CRIME
AND A FINANCIAL CRIME
WHY A CASE STUDY
 both a method of analysis and a specific
research design for examining a problem,
both of which are used in most
circumstances to generalize across
populations.
CASE STUDY : THE PHILEX MINE
TAILINGS SPILLAGE
 represents a topic that  analysis of the case is
rests on the fringes of
prior investigations
 the case may provide
new ways of
understanding the
research problem, i.e.
the correlation
between water
pollution and money-
laundering
based on the
hypothesis that the
case study will reveal
trends or issues that
have not been exposed
in prior research or
will reveal new and
important implications
for practice, i.e. water
pollution as a financial
crime
CASE STUDY : THE PHILEX MINE
TAILINGS SPILLAGE
 to consider how the  to offer an opportunity
results from
investigating this
particular case may
result in findings that
reveal ways in which
to resolve the existing
problem of water
pollution resulting
from mining
operations, i.e. a
better “polluters pay”
solution
to gather evidence that
challenges prevailing
assumptions about a
research problem and
provide a new set of
recommendations
applied to practice that
have not been tested
previously, e.g
redefining water
pollution as a crime
THEORETICAL FRAMEWORK

GREEN CRIMINOLOGY
WHAT IS GREEN CRIMINOLOGY
 theanalysis of environmental
harms from a criminological
perspective, or the application of
criminological thought to
environmental issues.
Dr Gary R. Potter
London South Bank University, UK
GREEN CRIMINOLOGY
 this means thinking about:
◦ offenses (what crimes or harms are inflicted
on the environment, and how);
◦ offenders (who commits crime against the
environment, and why); and,
◦ victims (who suffers as a result of
environmental damage, and how), and also
◦ responses to environmental crimes: policing,
punishment and crime prevention.
SOCIAL
CONSTRUCTION OF
CRIME
GREEN CRIMINOLOGY

Influenced by:
 Social locations
 Power relations in society
 Political process
 Media
 Definitions of environmental crimes
CHALLENGES

INVESTIGATION AND
PROSECUTION OF
VIOLATIONS OF R.A. 9275
- CLEAN WATER ACT
CONCEPTUAL CHALLENGES
 THE LAW ITSELF
 THE ADMINISTRATIVE STRUCTURE
 INVESTIGATIVE JURISDICTION
 CRIMINAL JURISDICTION
CONCEPTUAL CHALLENGE:
DEFINITION OF CRIMES UNDER
R.A. 9275 R.A. 9275
CHAPTER 5: CIVIL LIABILITY/PENAL
PROVISIONS
 SECTION 27.Prohibited Acts. - The following
acts are hereby prohibited:
a) Discharging, depositing or causing to be deposited
material of any kind directly or indirectly into the
water bodies or along the margins of any surface
water, where, the same shall be liable to be washed
into such surface water, either by tide action or by
storm, floods or otherwise, which could cause water
pollution or impede natural flow in the water body;
CONCEPTUAL CHALLENGE:
DEFINITION OF CRIMES UNDER
R.A. 9275
 SECTION 27.Prohibited Acts.
 b) Discharging, injecting or allowing to seep into the soil or sub-soil any substance in any form that would pollute groundwater. In the
case of geothermal projects, and subject to the approval of the Department, regulated discharge for short- term activities (e.g. well
testing, flushing, commissioning, venting) and deep re-injection of geothermal liquids may be allowed: Provided, That safety measures
are adopted to prevent the contamination of the groundwater;
 c) Operating facilities that discharge regulated water pollutants without the valid required permits or after the permit was revoked for
any violation of any condition therein;
 d) Disposal of potentially infectious medical waste into sea water by vessels unless the health or safety of individuals on board the
vessel is threatened by a great and imminent peril;
 e) Unauthorized transport or dumping into sea waters of sewage sludge or solid waste as defined under Republic Act No.9003;
 f) Transport, dumping or discharge of prohibited chemicals, substances or pollutants listed under Republic Act No.6969;
 g) Operate facilities that discharge or allow to seep, willfully or through gross negligence, prohibited chemicals, substances or
pollutants listed under R. A. No. 6969 into water bodies or wherein the same shall be liable to be washed into such surface, ground,
coastal, and marine water;
 h) Undertaking activities or development and expansion of projects, or operating wastewater/sewerage facilities in violation of
Presidential Decree. No.1586 and its implementing rules, and regulations;
 i) Discharging regulated water pollutants without the valid required discharge permit pursuant to this Act or after the permit was
revoked for any violation of condition therein;
 j) Non-compliance of the LGU with the Water Quality Framework and Management Area Action Plan. In such a case, sanctions shall
be imposed on the local government officials concerned;
 k) Refusal to allow entry, inspection and monitoring by the Department in accordance with this Act;
 l) Refusal to allow access by the Department to relevant reports and records in accordance with this Act;
 m) Refusal or failure to submit reports whenever required by the Department in accordance with this Act;
 n) Refusal or failure to designate pollution control officers whenever required by, the Department in accordance with this Act; and
 o) Directly using booster pumps in the distribution system or tampering with the water supply in such a way as to alter or impair the
water quality.
 CONCEPTUAL CHALLENGE:
PENALTIES UNDER R.A. 9275
 SECTION 28.Fines, Damages and Penalties. - Unless otherwise
provided herein, any person who commits any of the prohibited acts
provided in the immediately preceding section or violates any of the
provision of this Act or its implementing rules and regulations, shall
be fined by the Secretary, upon the recommendation of the PAB in
the amount of not less than Ten thousand pesos (P10,000.00) nor
more than Two hundred thousand pesos (P200,000.00) for every day
of violation. The fines herein prescribed shall be increased by ten
percent (10%) every two (2) years to compensate for inflation and to
maintain the deterrent function of such fines: Provided, That the
Secretary, upon recommendation of the PAB may order the closure,
suspension of development or construction, or cessation of
operations or, where appropriate disconnection of water supply, until
such time that proper environmental safeguards are put in place
and/or compliance with this Act or its rules and regulations are
undertaken. This paragraph shall be without prejudice to the issuance
of an ex parte order for such closure, suspension of development or
construction, or cessation of operations during the pendency of the
case.
 CONCEPTUAL CHALLENGE: R.A.
9275
Failure to undertake clean-up operations, willfully, or through
gross negligence, shall be punished by imprisonment of not
less than two (2) years and not more than four (4) years
and a fine not less than Fifty thousand pesos (P50,000.00)
and not more than One hundred thousand pesos
(P100,000.00) per day for each day of violation. Such
failure or refusal which results in serious injury or loss of life
and/or irreversible water contamination of surface, ground,
coastal and marine water shall be punished with
imprisonment of not less than six (6) years and one day
and not more than twelve (12) years, and a fine of Five
Hundred Thousand Pesos (P500,000.00) per day for each
day during which the omission and/or contamination
continues.
CONCEPTUAL CHALLENGE: R.A.
9275
In case of gross violation of this Act, the PAB shall issue a resolution
recommending that the proper government agencies file criminal charges
against the violators. Gross violation shall mean any of the following:
a) deliberate discharge of toxic pollutants identified pursuant to Republic Act
No.6969 in toxic amounts;
b) five {5) or more violations within a period of two (2) years; or
c) blatant disregard of the orders of the PAB, such as the non-payment of
fines, breaking of seals or operating despite the existence of an order for
closure, discontinuance or cessation of operation.
In which case, offenders shall be punished with a fine of not less than Five
hundred thousand pesos (P500,000.00) but not more than Three million
pesos (P3,000,000.00} per day for each day of violation or
imprisonment of not less than six {6) years but not more than ten {10)
years, or both, at the discretion of the court. If the offender is a juridical
person, the president, manager and the pollution control officer or the
official in charge of the operation shall suffer the penalty herein provided.
VOID FOR VAGUENESS
 ADMINISTRATIVE  CRIMINAL
SANCTIONS VIOLATIONS
 failure to undertake
 15 prohibited acts clean-up operations,
willfully, or through gross
negligence
 gross violation of this Act,
the PAB shall issue a
resolution recommending
that the proper
government agencies file
criminal charges against
the violators.
CONCEPTUAL CHALLENGE:
WHO CAN VIOLATE R.A. 9275
 If the offender is a juridical person, the
president, manager and the pollution control
officer or the official in charge of the
operation shall suffer the penalty herein
provided...
PIERCING THE VEIL OF
CORPORATE FICTION
 a company is simply a legal construct, it
cannot commit a physical act
 criminal liability is created by attributing
the acts and intentions of the company's
employees to the company itself, an
approach the Supreme Court first
endorsed in the 1909 case of New York
Central and Hudson River Railroad Co. v.
United States.
PIERCING THE VEIL OF
CORPORATE FICTION:WHY?
 Deterrence.
 If only an individual employee could be
punished for bad acts, the firm could
pressure other employees to carry on the
same criminal conduct
 No change in company policies and
practices
CORPORATIONS AS
ENVIRONMENTAL CRIMINALS
 Corporations should not be treated leniently
because of their artificial nature nor should they
be subject to harsher treatment.
 Vigorous enforcement of the criminal laws,
including environmental laws, against corporate
wrongdoers, where appropriate, results in great
benefits for law enforcement and the public,
particularly in the area of white collar crime.
 Charging corporations for criminal wrongdoing
enables the government to address and be a force
for positive change of corporate culture, alter
corporate behavior, and prevent, discover, and
punish white collar crime.
CORPORATIONS and
ENVIRONMENTAL CRIMES
 Possess the capability  Have the greatest
to inflict the greatest capacity to prevent
environmental harms and redress
environmental harms
Union Carbide Chemical plant in
Bhopal, India
 December 1984
 The world’s worst environmental accident
occurred (Chernobyl was a close 1st runner up)
 It is argued that far fewer than the actual 6,000
plus humans would have died if the plant had not
been located so close to the shanty towns of the
poorThe true extent of the damage will not be
known for twenty or more years
 This could affect birth defects in upcoming
generations
 Impact the natural environment and wildlife
CONCEPTUAL CHALLENGE:
JURISDICTION IN MINING-
RELATED WATER POLLUTION
CASES UNDER RA 9275
 INVESTIGATIVE  CRIMINAL
JURISDICTION JURISDICTION
◦ EMB vs. BFAR vs. ◦ Which court?
Local Government
 PROSECUTORIAL
JURISDICTION
◦ EMB PAB DOJ
CONCEPTUAL CHALLENGE:
R.A 9160 or the ANTI-MONEY
LAUNDERING ACT
 NOT AN UNLAWFUL ACTIVITY
 (E) a felony violation of the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), the Ocean
Dumping Act (33 U.S.C. 1401 et seq.), the Act to
Prevent Pollution from Ships (33 U.S.C. 1901 et seq.),
the Safe Drinking Water Act (42 U.S.C. 300f et seq.),
or the Resources Conservation and Recovery Act (42
U.S.C. 6901 et seq.);
 18 U.S. Code § 1956 - Laundering of monetary
instruments
CONCEPTUAL CHALLENGE: R.A
9160 or the ANTI-MONEY
LAUNDERING ACT
 “PROCEEDS”  “PROCEEDS” refers to
 the term “proceeds” an amount derived or
means any property realized from any
derived from or unlawful activity.
obtained or retained,  2016 Revised
directly or indirectly, Implementing Rules
through some form of And Regulations
unlawful activity, Of Republic Act No.
including the gross 9160, As Amended
receipts of such activity.
 18 U.S. Code § 1956 -
Laundering of
monetary instruments
CONCEPTUAL CHALLENGE: R.A
9160 or the ANTI-MONEY
LAUNDERING ACT
 Company Profits as Proceeds
◦ How to segregate and identify from other
legitimate sources/streams

 Trading of Company Securities

◦ Changes in ownership/tracking
movement/insider trading
PRACTICAL CHALLENGES
 INFORMATION GATHERING
◦ Right To Privacy Of Corporate Records
◦ Public Company Disclosures

 INFORMATION ANALYSIS
◦ Scientific/Technical/Financial Data
◦ How to Read Income/Profit Statements
◦ How to Track Changes in the Ownership of
Shares of Stocks
WHAT CAN BE DONE

CONCLUSIONS AND
RECOMMENDATIONS
Despite massive harm that water
pollution causes to the
environment, it is not viewed as
a financial crime

Beyond purview of money-

laundering tools
LEGISLATION: To Amend the Clean
Water Act

 Clear definition of crime

 Broaden class of offenders
 Measurement of punishment to include
harm to the community
 Mandatory remediation measures
LEGISLATION: To amend the Anti-
Money Laundering Act

 Include water pollution as an unlawful

activity
When the well is dry, we will
know the worth of water.
Benjamin Franklin