7 November, 2015
Legislative framework
1 Do you have any statutes specifically relating to land contamination?
The Philippines is replete with environmental laws and has one of the most voluminous sets of environmental laws in Asia. However, the Philippines does not have a specific statute on land contamination. Nevertheless, there are related statutes that provide for a sound mechanism in the control of land, air and water pollution in accordance with the policy of the state to ensure the protection of public health and of the environment.
The Clean Water Act, for instance, prohibits discharging, injecting or allowing to seep into the soil or subsoil any substance in any form that would pollute groundwater. In the case of geothermal projects, and subject to the approval of the Department of Environment and Natural Resources (DENR), regulated discharge for short-term activities (e.g., well testing, flushing, commissioning and venting) and deep re-injection of geothermal liquids may be allowed, provided that safety measures are adopted to prevent the contamination of the groundwater.
The Pollution Control Law also provides that no person shall throw, run, drain or otherwise dispose of into any of the water, air and/or land resources of the Philippines, or cause, permit, suffer to be thrown, run, drain, allow seeping or otherwise dispose thereto any organic or inorganic matter or any substance in gaseous or liquid form that shall cause pollution thereof.
2 Is there a definition of contaminated land in your laws?
Land contamination has not been specifically defined by any statute, decree or regulation issued by the DENR. However, under the Pollution Control Law, pollution is defined as “any alteration of the physical, chemical and biological properties of any water, air and/or land resources of the Philippines, or any discharge thereto of any liquid, gaseous or solid wastes, as will or is likely to create or to render such water, air and land resources harmful, detrimental or injurious to public health, safety or welfare, or which will adversely affect their utilization for domestic, commercial, industrial, agricultural, recreational or other legitimate purposes.”
Statutory responsibility for cleanup
3 Are there any cleanup or remediation laws with regard to contaminated land?
We are not aware of any cleanup or remediation laws that deal specifically with contaminated land. However, the government has directed agencies and bureaus to implement environmental laws and policies. For instance, the Environmental Management Bureau (EMB), as provided under applicable legislation, can require program and project proponents to put up financial guarantee mechanisms that will finance any need for emergency response, cleanup or rehabilitation of areas that may be damaged during the program or project’s actual implementation. Meanwhile, the National Chemical Safety Management and Toxicology Policy’s Sub-sector on Toxic Substance and Hazardous Waste (TSHW), under the Inter-Agency Committee on Environmental Health (IACEH), is responsible for developing protocols for cleanup, remediation and rehabilitation.
Further, in line with the state’s policy to protect the environment, and further to the Philippine Environmental Impact Statement (EIS) system, proponents of environmentally critical projects (ECP) and projects within environmentally critical areas (ECA), are required to obtain an environmental compliance certificate (ECC) prior to the commencement of the project. The ECC, which is issued by the EMB, is a document certifying that based on the representations of the proponent, the proposed
project or undertaking will not cause significant negative environmental impact. The ECC also certifies that the proponent has complied with all the requirements of the EIS system and that it has committed to implementing its approved environmental management plan.
The ECC contains specific measures and conditions that the project proponent has to undertake before and during the operation of a project, and in some cases – during the project’s abandonment phase – to mitigate identified environmental impacts, including cleanup. Plans for environmental rehabilitation, cleanup and restoration following accidents are normally part of the application for the ECC and the environmental impact assessment.
Some laws and regulations (e.g., the Clean Water Act) provide that the DENR shall require program and project proponents to put up an environmental guarantee fund (EGF) as part of the environmental management plan attached to the ECC issued pursuant to Presidential Decree (PD) No. 1586 and its implementing rules and regulations.
The EGF shall finance the maintenance of the health of the ecosystems and especially the conservation of watersheds and aquifers affected by the development, and the needs of emergency response, cleanup or rehabilitation of areas that may be damaged during the program or project’s actual implementation.
Liability for damages shall continue even after the termination of a program or project and until the lapse of a given period indicated in the environmental compliance certificate, as determined by the DENR.
The EGF may be in the form of a trust fund, environmental insurance, surety bonds, letters of credit, self-insurance and any other instruments that may be specified by the DENR. The choice of the guarantee instrument or combinations thereof shall depend, among others, on the assessment of the risks involved and financial test mechanisms devised by the DENR; the entity required to put up guarantee instruments shall furnish the DENR evidence of availment of such instruments from accredited financial instrument providers.
In addition, Presidential Decree No. 8251 directs persons, establishments and institutions to take responsibility for cleaning up their respective surroundings, including their yards and gardens, as well as the canals, roads or streets in their immediate premises.
It should also be noted that the Ecological Solid Waste Management Act of 2000 provides, that pursuant to the Local Government Code, all provinces, cities, municipalities and barangays (the smallest unit of government), through appropriate ordinances, are mandated to consolidate or coordinate their efforts, services and resources for purposes of jointly addressing common solid waste management problems and/or establishing common waste disposal facilities.
The National Building Code of the Philippines also provides that where the land or site is polluted, unsanitary, unhygienic, unsafe or hazardous, conditions contributing to or causing its being polluted, unsanitary, unhygienic, unsafe or hazardous shall be reasonably improved or corrected, or proper remedial measures shall be prescribed or incorporated in the design or construction of the building or structure in accordance with the provisions of the code.
4 If so:
4.1 Who is primarily responsible for the cleanup?
Under Philippine law, the general rule is that any person (polluter) who violates the law and disobeys orders and directives of the proper authorities should be responsible for the cleanup. If the polluter refuses to control or abate the pollution made, he or she shall be subject to criminal and civil penalties.
4.2 If it is the polluter, what happens if the polluter cannot be found? Is the liability passed on to the owner or the occupier?
The law does not provide for the liability of the polluter being passed to the landowner or occupier in case the former cannot be found. In the absence of specific provisions, liability cannot be passed to the landowner or occupier. Nonetheless, as a practical matter, there are other entities that may be held responsible for the cleanup, control or abatement, or which may be subject to the sanctions imposed by law. The CEO, president, general manager, managing partner or officer-in-charge is held liable in case the offense is committed by a corporation, partnership or any juridical entity. Local government officials who fail to enforce or comply with the implementing rules and regulations shall also be held administratively liable in accordance with existing laws.
Some laws provide that cleanup operations are necessary in emergencies,. If the polluter fails to immediately undertake the same, the DENR, in coordination with other government agencies concerned, will conduct containment, removal and cleanup operations. Expenses incurred in said operations will be reimbursed from the persons found to have caused such pollution, upon proper administrative determination in accordance with the laws.
4.3 If the polluters are both the owner and the occupier (e.g., the landlord and a tenant), how is the liability apportioned between them?
There are no specific laws on owners/occupiers or landlords/tenants. The law presumes that whoever has violated the provisions in any of our environmental laws and who is assumed to be the polluter by any statute or administrative order incurs the liability.
4.4 Does the liability to clean up include historical contamination? If not, who pays for this cleanup?
The law does not define historical contamination nor does it specify the person responsible for this cleanup. Under the principle that the polluter pays, it can be argued that the person who caused the contamination should be liable for said cleanup. Assuming such person cannot be identified or can no longer be found, it can be assumed that whoever is directed by concerned agencies to remedy the pollution of land incurs the costs.
Cleanup standards
5 How is it decided whether cleanup is required? For example, are there regulations specifying limits to polluting substances that are permitted, or is some form of risk assessment carried out?
Generally, the DENR will determine whether cleanup is required. The DENR can also specify allowable limits to polluting substances.
Generally, some form of risk assessment will be carried out by the DENR. For example, DENR regulations have technical guidelines on solid waste disposal. DENR will provide these guidelines to the local government units (LGUs) that are converting open dump sites to environmentally sound landfills, adhering to prescribed engineering and environmental standards. LGUs shall formulate regulations to facilitate and support the closure and conversion of open dumps. All LGUs shall comply with the timeline that will be set by the DENR.
6 What level of cleanup is required?
The level of a cleanup will generally vary, depending on the amount of pollution or contamination as may be determined by the DENR.
7 Are there different provisions relating to the cleanup of water?
The Philippine Clean Water Act of 2004 (RA 9275) provides for cleanup operations by any person who causes pollution in or pollutes water in excess of the applicable and prevailing standards at his or her own expense, to the extent that the same body of water has been rendered unfit for utilization and beneficial use. The DENR shall conduct the containment, removal and cleanup operations for emergency cleanup operations when the polluter fails to immediately undertake the same. In this case, expenses incurred shall be reimbursed by the polluter to the Water Quality Management Fund or to such other fund where the disbursement was sourced. The Philippine Environment Code (PD 1152) contains similar provisions.
Penalties, enforcement and third-party claims
8 Is it a criminal offense to contaminate land or to own contaminated land? If so, what are the penalties?
Philippine law imposes civil and criminal penalties on violators of Philippine environmental laws generally.
We are not aware of any penalties solely on account of owning contaminated land, unless the owner has caused contamination in violation of applicable Philippine environmental laws.
Penalties differ, depending on the particular law violated (e.g., the Clean Water Act, the Solid Waste Management Act, etc.). Generally, penalties may be in the form of a fine and/or imprisonment.
On the other hand, Philippine jurisprudence shows that responsible individuals, including officers of a corporation, either Filipino citizen or alien, may be held criminally liable for reckless imprudence resulting in damage to property and may thus be imprisoned.2 Under Philippine criminal law, reckless imprudence is that which “consists in voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.” If the offense is committed by a corporation, partnership or other juridical identities duly recognized in accordance with the law, the CEO, president, general manager, managing partner or officer-in- charge will generally be liable for the commission of the offense penalized under the law.
If the offender is an alien, he or she shall, after serving the sentence prescribed above, be deported without further administrative proceedings.
Government officials may also be subject to prosecution.
9 Is it a criminal offense not to comply with the requirement to clean up? If so, what are the penalties?
Some laws, such as the Clean Water Act, make it a criminal offense to not comply with the requirement to clean up. The Clean Water Act provides that the failure to undertake cleanup operations, willfully or through gross negligence, will be punishable by imprisonment of not less than two years but not more than four years, as well as a fine that is not less than PHP50,000 but not more than PHP100,000 per day for each day of violation. Such failure or refusal that results in serious injury or loss of life and/or irreversible water contamination of surface, ground, coastal and marine water will be punishable by imprisonment of not less than six years and one day but not more than 12 years, and a fine of PHP500,000 per day for each day during which the omission and/or contamination continues.
In case of gross violation of the Clean Water Act, the Pollution Adjudication Board will issue a resolution recommending that the proper government agencies file criminal charges against the violators. Different penalties are imposed for gross violations.
10 What authority enforces cleanup?
The Pollution Control Law has created the National Pollution Control Commission (now the EMB), which has the power and function to determine the location, magnitude, extent, severity, causes, effects and other pertinent information regarding pollution of the water, air and land resources of the country. The EMB takes such measures, using available methods and technologies, as it shall deem best to prevent or abate such pollution and conduct continuing research studies on the effective means for the control and abatement of pollution. It also has the power to issue orders or decisions to compel compliance with the provisions of the law and its implementing rules and regulations only after proper notice and hearing.
11 Are there any defenses?
We are not aware of any specific defenses.
12 Can third parties / private parties enforce cleanup?
A third party/private party can file a complaint. But the DENR will need to impose the penalty and mandate the cleanup.
Citizens will also have the right to bring action in court or quasi-judicial bodies to remedy all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area, and to seek the imposition of penal sanctions against violators of environmental laws. They also have the right to bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity.
13 Can third parties claim damages?
Those who suffer damage may claim damages under applicable provisions of civil law.
Acquisition of contaminated land
14 Is it a legal requirement in your jurisdiction to conduct investigations for potential contamination in connection with the sale of property?
There is no legal requirement to investigate potential contamination in connection with the sale of property. However, under the National Building Code of the Philippines, for instance, there is a requirement that must be met by every property owner who undertakes the construction of any structure over a piece of land. The Building Code provides that “the land or site upon which will be constructed any building or structure, or any ancillary or auxiliary facility thereto, shall be sanitary, hygienic and safe. Where the land or site is polluted, unsanitary, unhygienic, unsafe or hazardous, conditions contributing to or causing its being polluted, unsanitary, unhygienic, unsafe or hazardous shall be reasonably improved or corrected, or proper remedial measures shall be prescribed or incorporated in the design or construction of the building or structure.”
Every buyer or lessor of land, therefore, is enjoined to conduct his or her own investigation on the status of the land about to be purchased, because he or she, upon the construction of any structure over such land, will be bound to meet the requirements of the Building Code. However, such measure is not a legal requirement, but more of an exercise of prudence on the part of the potential buyer, because the cost of improving, correcting or remedying pollution of the land will be shouldered by him or her and should be factored in when considering the purchase or lease of the land.
For properties wherein Hazardous Waste Treatment, Storage and Disposal Facilities (TSD) were formerly located, the DENR’s rules and regulations require that within one year from cessation of its operation, a comprehensive site investigation study should be performed. This study establishes the environmental condition of the area, indicating the absence of any traces of contamination. Should evidence show any presence of contamination, the TSD facility shall perform remedial action until such time that the environmental condition of the site become acceptable to the DENR. Therefore, potential purchasers of this kind of property should, as part of its due diligence, inquire about whether the requisite site investigation study was performed.
15 Can a party responsible for cleanup under statutory law pass on its cleanup liability to the purchaser?
We are not aware of any provision under Philippine law that will prohibit a party responsible for a cleanup from contractually passing the responsibility therefor to a purchaser. However, the party responsible or the polluter will remain liable to the authorities and to third parties in case contamination is determined.
As regards construction under the Building Code, it should be noted that the requirement to improve, correct or remedy the polluted, unsanitary, unhygienic, unsafe or hazardous condition of the land prior to the construction of any structure on it is a responsibility that is attached to the ownership of the structure about to be constructed.
15.1 Under the general law?
There is no express provision of law that authorizes the passing of this responsibility. Failure to meet this requirement will result in the undertaking of enforcement measures against the polluter or, in the case of the Building Code provisions, the owner of the structure being constructed; whoever possesses legal title evidencing ownership will be deemed the owner for purposes of enforcement.
15.2 Contractually?
As mentioned, it is possible that responsibility for a cleanup will be contractually passed. However, this liability to the government or third parties cannot be modified by contractual stipulation.
16 Is there anything else about contaminated land that you would bring to the attention of a potential purchaser of that land?
A potential purchaser of land should conduct its own due diligence and ensure that it obtains the necessary representations and warranties, as well as indemnification for damages. Further, a party interested to use land for purposes where land contamination may become a consequence should also consider the following:
The Philippine Supreme Court traditionally strikes down contracts between the government and a private party where the land project, first, has adversely affected its environs, and second, where there is a detriment to sources of water.3 Second, under the Local Government Code, national government projects that affect the environmental or ecological balance of a particular community require consultations with the appropriate local government unit. Such projects include those that (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-land or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented.
1 Providing penalty for improper disposal of garbage and other forms of uncleanliness and for other purposes. 7 November 1975.
2 Loney vs. People of the Philippines, G.R. No. 152644, 10 February 2006.
3 Province of Rizal vs. Executive Secretary, G.R. No. 129456, 13 December 2005.
4 Bangus Fry Fisherfolk vs. Honorable Enrico Lazanas, G.R. No. 131442, 10 July 2003.
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