DENR ADMINISTRATIVE ORDER NO. 85, December 10, 1990
REVISED RULES AND REGULATIONS IMPLEMENTING PRESIDENTIAL DECREE NO. 1251, AS AMENDED, IMPOSING FEES ON OPERATING MINING COMPANIES TO BE KNOWN AS “MINE WASTE AND TAILINGS FEES” TO…
1251 mandating the Secretary of the Department of Environment and
Natural Resources (DENR) to promulgate rules and regulations
implementing the aforesaid decree, the following are hereby issued for
the information and guidance of all concerned:
CHAPTER I
Definitions
SECTION 1.0 Definition of Terms — As used in and for
the purpose of these regulations, the following terms and phrases shall
have the corresponding meaning herein below stated:a. Agricultural Crops shall mean crops grown for commercial and industrial purposes or hom consumption.
b. Committee Chairman shall mean the Director of Environmental Management Bureau.
c. Costs of Rehabilitation shall mean the money value of all inputs necessary to approximate the original condition or use of a damaged property.
d. Damages shall mean the monetary value of
destruction caused on land, agricultural crops, forest products, marine
life and aquatic resources; on infrastructures; and the cost of
rehabilitation of silted farm lands and other areas devoted to
agriculture and fishing caused by pollution due to mine waste and
tailings as a result of the operations of mining companies. Such damages
are “actual or compensatory damages” under Article 2199 of the New
Civil Code of the Philippines.e. Director shall mean the Director of Mines and Geosciences Bureau (MGB).
f. Disturbance Fee shall mean the average
value of the goods produced by the qualified claimants as provided for
under Section 7.1 hereor, for the last three (3) years multiplied by
five (5) years.g. Evaluation Committee or Committee shall mean the Evaluation Committee created under Presidential Decree No. 1251, as amended.
h. Forest Products shall
mean timber, pulpwood, bark, tree top, resin, gum, wood, oil, honey,
beeswax, nipa, rattan, or other forest growth such as grass, shrub and
flowering plant, the associated water, fish and/or game, scenic,
historical, recreational and geologic resources in forest lands.i. Infrastructures shall mean all civil works such as, but not limited to, roads, bridges, dams and buildings.
j. Inland Aquatic Resources shall mean all fresh water and brackish water plants and animals.
k. Loss of Projected Net Income shall mean
estimated unrealized net income as a result of damages based on the
average production for the past three (3) years on the same location.l. Marine Life and Aquatic Resources shall mean all aquatic plants and animals found in marine environment.
m. Mine Waste shall mean soil and rock
materials from surface or underground mining operations with no economic
value to the generator of the same.n. Mine Waste and Tailings Fees shall mean fees imposed on all operating mining companies in accordance with Presidential Decree No. 1251, as amended.
o. Operating Mining Companies shall mean
partnerships, cooperatives, associations or corporations except
small-scale miners legally engaged in or responsible for the conduct of
mining activities such as but not limited to, exploration, development,
extraction, milling, concentrating, transport and marketing of mineral
resources which produce mine waste and tailings as defined in these
rules and regulations.p. Reserve Fund shall mean the accrued mine
wastes and tailings fees to be used for payment of damages on lands,
agricultural crops and forest products, marine life and aquatic
resources, the destruction of infrastructure, and the revegetation and
rehabilitation of silted farm lands and other areas devoted to
agriculture and fishing caused by pollution due to mine waste and
tailings as a result of the operation of mining companies as provided
for by Section 2 of PD 1251.q. Secretary shall mean the Secretary of Environment and Natural Resources.
r. Tailings shall mean materials whether
solid or liquid segregated from the ores during concentration/milling
operations which has no economic value to the generator of the same.
CHAPTER II
Organization
SECTION 2. Evaluation Committee — The
Evaluation Committee created under Section 3 of PD 1251 shall
hereinafter be known as the “Mine Waste and Tailings Damages Evaluation
Committee”. It shall be composed of the following:Chairman – Director, Environmental Management
Bureau (EMB)Vice-Chairman – Director, Mines and Geosciences
Bureau (MGB)Members – Director, Land Management Bureau (LMB)
Director, Forest Management Bureau (FMB)
Administrator, National Irrigation
Administration (NIA)Director, Bureau of Plant Industry (BPI)
Director, Bureau of Fisheries and Aquatic
Resources (BFAR)Director, Bureau of Soils and Water
Management (BSWM)SECTION 2.1 Functions of the Committee — The Committee shall have the following functions:
a. Evaluates and decides on all applications for compensation for damages and awards compensations therefor;
b. Implements duly approved guidelines, rules and regulations;
c. Prescribe documentary requirements for applications for compensation for damages;
d. Formulates policy recommendations to strengthen the provisions of this Order for consideration of the Secretary;
e. Appoints and/or designates members of the Technical
Working Group and Regional Investigation and Assessment Teams for the
effective implementation of this Order and exercise general supervision
over them;f. Provides appropriate funds for the development and
implementation of research and other special projects which it deems
necessary in promoting the objectives of this Order;g. Recommends to the Secretary the granting of allowances
to officials and personnel performing functions and duties relative to
the effective implementation of this Order; and,h. Performs other functions as may be assigned by the Secretary.
SECTION 2.2 Committee Meeting — The Committee shall
hold regular monthly meetings. Special meetings may be called by the
Committee Chairman as the need arises.SECTION 3. Technical Working Group — There
shall be created a Technical Working Group to assist the Committee in
the performance of its functions. It shall be composed of the
representative/s from each of the member agencies of the Committee, duly
designated by the Committee Chairman, upon recommendation of
corresponding Committee Member. The Technical Working Group shall be
headed by a Chairman to be appointed by the Committee Chairman.Under the Technical Working Group there shall be a Technical
Secretariat and Administrative Staff to assist the Committee and shall
be composed of Mines and Geosciences Bureau (MGB) personnel duly
designated by the Committee Chairman upon the recommendation of the
Director.SECTION 3.1 Functions of the Technical Working Group — The Technical Working Group shall have the following functions:
a. Receives, processes, evaluates and conducts
preliminary investigation if necessary, of claims for damages and
submits appropriate recommendations to the Committee;b. Develops, packages and recommends research and other special projects;
c. Prepares costings for the rehabilitation of damaged commercial agricultural, industrial and residential lands;
d. Determines/estimates the cost of rehabilitating
damaged industrial, commercial, residential and agricultural lands
caused primarily by mine waste and tailings;e. Acts as secretariat to the Committee;
f. Coordinates and monitors the activities of all
Regional Investigation and Assessment Teams, and other personnel
involved in the implementation of this Order;g. Verifies the amount of mine waste and tailings generated by operating mining companies;
h. Computes and collects the mine waste and tailings fees to be paid by operating mining companies;
i. Drafts guidelines, orders, resolutions and other documents in connection with the implementation of this Order;
j. Assists in the investigation and assessment of
claims for damages and submits appropriate recommendation to the
Committee;k. Handles administrative functions especially on finance and budget; and,
l. Performs other functions as may be assigned by the Committee.
SECTION 3.2 Technical Working Group Meeting —
The Technical Working Group shall hold monthly regular meetings. Special
meetings may be called by the Technical Working Group Chairman, subject
to prior notice.SECTION 4. Regional Investigation and Assessment Teams
— Regional Investigation and Assessment Teams may be organized to
assist the Committee and the Technical Working Group. The team shall be
headed by the concerned DENR Regional Executive Director or his duly
authorized representative. The members may be composed of
representatives from the agencies/sectors mentioned in Section 2.0 of
this Order when their services are needed depending on the nature of the
claim. In all investigations, the mining company/ ies concerned and the
affected party/ ies shall be duly represented.SECTION 4. Functions of the Regional Investigation and Assessment Team — The Regional Investigation and Assessment Teams shall have the following functions.
a. Provides advice to interested parties on matters relating to the implementation of this Order;
b. Provides application and other related forms to prospective claimants for damages;
c. Receives applications for compensation for damages under this Order;
d. Conducts field investigations and assessments of
claims for damages and submits reports to the Committee, thru the
Technical Working Group; ande. Performs other functions as may be assigned by the Committee Chairman.
SECTION 4.2 Jurisdiction of Regional Investigation and Assessment Team
— For purposes of these rules and regulations and unless otherwise
amended, the jurisdiction of the Regional Investigation and Assessment
Teams shall follow the present geographical jurisdiction of the country.SECTION 4.3 Meetings of the Regional Investigation and Assessment Teams — The Regional Executive Director of the DENR, as Chairman, shall call meetings of the Team as often as necessary.
CHAPTER III
Mine Waste and Tailings Fees
SECTION 5. Mine Waste and Tailings Fees — A
semi-annual fee to be known as “Mine Waste and Tailings Fees” shall be
imposed by the Secretary on all operating mining companies, upon
recommendation of the Evaluation Committee. Such fee shall accrue to the
Reserve Fund.SECTION 5.1 Basic Fees — Pursuant to Section 1
of PD 1251, all operating mining companies shall pay the following basic
fees without prejudice to penalties and other conditions that may be
imposed by pertinent Offices:a. Five Centavos (P0.05) per metric ton of mine waste produced;
b. Ten Centavos (P0.10) per metric ton of tailings
for companies discharging into tailings impoundment/disposal system duly
approved by the concerned DENR Regional Office;c. Ten Centavos (P0.10) per metric ton of tailings for
companies discharging tailings directly into the sea by means of
pipelines, launders and/or tunnels.SECTION 5.2 Exemption from Fees — Mine waste and tailings utilized for the following purposes shall be exempted from payment of fees:
a. filling materials for underground mine openings;
b. filling materials for surface mine openings
provided that such material shall not affect natural drainage systems as
may be determined by the Committee or its duly authorized
representative;c. filling materials for civil structures such as
engineered tailings dams, roads, housing areas, and similar structures,
provided that such areas shall not affect natural drainage systems as
may be so determined by the Committee or his duly authorized
representative;d. concreting and manufacture of concrete products; and
e. mine waste impounded for future use provided,
however, that said materials shall be utilized for its beneficial use
within a period of two (2) years. Mine wastes which are not utilized
within the two-year period shall be charged the corresponding fee as
stipulated in Section 5.1 hereof.PROVIDED, that the utilization of mine waste and tailings for the
foregoing purposes shall have prior approval of the Committee: PROVIDED
further, that the actual utilization of such materials shall be subject
to verification by the Committee or its duly authorized
representative/s.SECTION 5.3 Payment of Fees — The fees herein
imposed shall be payable to the Committee through the Technical Working
Group within forty-five (45) calendar days after the end of each
semester. They shall be based on a semi-annual report under oath to be
submitted by each operating mining company stating among others the
following:1) the amount of mine waste and tailings produced,
stored/impounded or the amount of materials that are exempted from the
payment of the fees; and2) the manner for which these materials are being utilized.
CHAPTER IV
Administration of Reserve Fund
SECTION 6. Administration of Mine Waste and Tailings Fees — Funds collected from the mine waste and tailings fee shall be disbursed only for the following purposes:
a) compensation of claims for damages duly processed,
evaluated, approved and ordered for payment by the Committee Chairman;
andb) Payment of expenses incurred by the Committee and its
Staff representing actual field and travel expenses and monthly
allowances in an amount not exceeding P300,000.00 annually to be taken
from the Reserve Fund: PROVIDED that all payments shall be signed by the
Committee Chairman and countersigned by the Committee Vice-Chairman.SECTION 6.1 Actual Field and Travel Expenses —
Actual field and travel expenses shall refer to the costs incurred by
the Committee and its Staff while on official travel in connection with
their respective functions identified in this Order.SECTION 6.2 Monthly Allowances — Pursuant to
Section 2.1.g. hereof, the members of the Evaluation Committee and its
Staff shall be granted allowable monthly allowances in an amount
specified by appropriate accounting rules and regulations and as
recommended by the Chairman of the Evaluation Committee to be approved
by the Secretary.
CHAPTER V
Application for Compensation
SECTION 7. Compensable Damages — All
damages on private property/ ies, the proximate cause of which is
pollution due to mine waste and tailings, are compensable which include,
among others, the areas mentioned in the succeeding section.SECTION 7.1 Qualified Applicants. The following re qualified to apply for compensation in accordance with the damages incurred:
A. Private owners of damages infrastructures, forest products, marine, aquatic and inland resources;
B. For damages to private lands:
1. Any applicant/claimant or his successor-in-interest who
holds title to or any evidence of ownership as provided for in Section
7.2.A hereof; and2. Any applicant/claimant of alienable and disposable lands;
C. For damages to crops:
1. Agricultural lessors or lessees;
2. Share tenants.
If the applicant is both owner and tiller of the land, then he may apply for both land and crop damages.
SECTION 7.2 Application Procedure — Applications
for compensation for damages under this Order shall be filed in
prescribed application forms with the Regional Investigation and
Assessment Teams within thirty (30) working days from the occurrence of
the damage.All applications shall be supported by the following documents:
a. Proof of ownership such as tax declaration, perfected
land titles, homestead and free patent. It should be understood,
however, that tax declaration shall be honored as proof of ownership
only for the purposes of compensation under this Order;b. Receipt of expenditures for improvements made in the affected property/ ies; and
c. Other requirements that may be required by the Committee.
CHAPTER VI
Evaluation and Compensation of Claims for Damages
SECTION 8. The following guidelines shall apply in the evaluation of claims for damages under thisOrder:
a. Damages caused to agricultural lands which render such
lands useless for the traditional purpose for which it was intended, may
be compensated at an amount equivalent to either one of the following:1. the fair market value of the lands as per latest tax
declaration; PROVIDED however, that a quitclaim/waiver to any future
claims for compensation shall be executed by the claimant/owner before
payment which shall be valid only for the duration of the disturbance
equivalent to 5 years; or2. the costs of rehabilitation of the lands.
b. Damages to agricultural lands resulting in partial loss
of productivity may be compensated at an amount equivalent to the costs
of rehabilitation.c. Damages to industrial and residential lands may be compensated at an amount equivalent to the costs of rehabilitation.
d. Damages resulting in total or partial loss of
agricultural crops, forests products and/or inland aquatic resources may
be compensated at an amount equivalent to either one of the following:1. the loss of projected net income therefrom; or
2. the disturbance fee as provided for in Section 1.f
hereof; PROVIDED however, that a quitclaim/waiver to any future claims
for compensation shall be executed by the claimant/owner before payment
which shall be valid only for the duration of the disturbance equivalent
to 5 years.e. All quitclaims/waivers signed by the claimant/s shall be
binding on the heirs and/or successors-in-interest within the period of
the disturbance equivalent to 5 years.f. Damages to infrastructures may be compensated at an
amount equivalent to the costs of rehabilitation to be determined by the
Committee.g. The amount of compensation for damages shall be based on
the amount claimed or the amount assessed, whichever is lower.h. The budget for compensation for claims for damages under
the Decree shall be drawn from the aggregate total of the mine wastes
and tailings fee collected from operating mining companies accruing in a
Reserved Fund without prejudice as to what company caused the damages.i. In case of private leased lands, compensation under
this Order shall be paid in accordance with the sharing agreement
between the private landowner and the lessee(s). In the absence of such
an agreement, compensations shall be divided on the following sharing
scheme:a) 75% for tenants and 25% for landowners for rice and corn; and
b) 50% for tenants and 50% for landowners for crops other than rice and corn.
j. Damages compensated by the operating mining company/
ies shall no longer be considered compensable under this Order, provided
that written approval has been secured from the Committee and such
payment shall be credited to the concerned mining company/ ies for the
next paying period. Waiver signed as a condition of payment for such
compensation by operating mining company/ies shall also be considered as
waiver under this Order.k. The decision of the Committee shall be final and
executory unless appealed to the Secretary within thirty (30) days from
receipt of the decision.
CHAPTER VII
Final Provisions
SECTION 9 .. Penalty Clause — Failure to comply with
the provisions aforestated herein, without justifiable reasons shall
subject the mining company to payment of basic fees plus ten percent
(10%) surcharge on the principal amount for every month of delay. In
addition, the operator shall be disqualified to avail of the exemptions
as provided for under Section 5.2.FURTHERMORE, those with duly approved tailings impoundment/disposal
systems found to have discharged tailings in natural drainage systems,
shall be subject to suspension of the mining operations as may be
recommended by the Committee to the Pollution Adjudication Board (PAB).SECTION 10 .. Separability Clause — Any provision herein
which may be declared null and void by a competent court, repealed or
modified shall not affect other provisions unless such provision
specifically provides otherwise.SECTION 11 .. Repealing Clause — All other rules and regulations inconsistent herewith are hereby revoked, repealed or modified accordingly.
SECTION 12. Effectivity — This Order takes effect fifteen (15) days after publication in a newspaper of general circulation.
Adopted: 10 Dec. 1990
(SGD.) FULGENCIO S. FACTORAN, JR.
Secretary