The Challenges of Participation in the Present EIS System: The Provincial

Government of Batangas Experience

By Mr. Luis A. Awitan, Department Head, Batangas Provincial Government

Environment and Natural Resources Office (PG-ENRO)

The Provincial Government of Batangas has been a member of several

multipartite monitoring teams or MMTs for different projects located within its

area of jurisdiction. It was only lately that it was understood that those activities

were part of the process under the EIS System, and it was further appreciated

when Mak-Ban Geothermal Power Plant Facility became one of the pilot plant

for the Strengthening Environmental Performance and Monitoring Evaluation

System of the Philippine Environmental Impact Statement System in 2004.

In the present EIA process, aside from ensuring environmental protection,

public participation is a very important and indispensable aspect of the process.

It was not given emphasis in the early years of the EIS System, that the lack of

knowledge about the project among the affected stakeholders and the lack of

concern of project proponents to the apprehensions and needs of the affected

community resulted to misinformation and misunderstanding, and consequently

social acceptability problem of the project.

Also under the present system, as another venue for public participation,

the creation of MMTs for different projects promoted greater stakeholder’s

vigilance and provided check and balance mechanisms in monitoring project

implementation. Among the many advantages of the involvement of LGUs as

members of the MMT is that local government or the local chief executives are

informed or updated on issues relative to the project being monitored.

However, there are still challenges regarding the creation and operation of

MMTs that needs to be addressed such as assignment and changes in

membership, lifespan, and budget.

The Challenges of Participation in the Present EIS System: The Provincial Government of Batangas Experience Introduction The Provincial Government of Batangas has been a member of several multitpartite monitoring teams or MMTs for different projects located within its administrative jurisdiction. Initially, it was the Provincial Planning and Development Office that represented the Provincial Government in those MMTs until the representations were transferred to the Provincial Government Environment and Natural Resources Office or PG-ENRO when it was created. One of the projects to where the Provincial Government became involved as MMT member was the Mak-Ban Geothermal Power Plant Facility owned then by the National Power Corporation (NPC). Mak-Ban Geothermal Power Plant Facility In 1973, the Philippine government declared some 1,084 hectares for the operation of the Mak-Ban Geothermal Power Plant. At that time, environmentally critical projects did not have to go through stringent EIS in order to secure an Environmental Compliance Certificate. Thus, the power plant project came into being without going through the rigors of EIS. It was only in 1977, that Presidential Decree No. 1151, known as the Philippine Environmental Policy required the preparation of an environmental impact statement (EIS) for every project which significantly affects the quality of the environment. In 1992, DENR issued DAO 1992-21 (Amending the Revised Rules and Regulations Implementing PD 1586) however, public hearing during that time is not mandatory for environmentally critical projects. On that year, two ECCs were issued to Makban, one for Binary Cycle Geothermal Power Generating Plant issued March 5, 1992, and the other one for Modular Turbine Generating Plant issued June 29, 1992. The latter ECC has a condition that the monitoring of the project operation shall be conducted through the organization of a multi-sectoral group but this was not implemented. Then DENR issued DAO 1996-37, with a detailed Procedural Manual, that amended DAO 1992-21. One of its objectives was to enhance maximum public participation in the EIA process to validate the social acceptability of a project so as to ensure the fullest consideration of the environmental impact of such project. Then NPC with Philippine Geothermal Inc. (PGI) submitted its geothermal rehabilitation/expansion project to an EIS, that in 2002, the third ECC was issued last November 21, 2002. It was not an easy undertaking. Being in existent for many years, effects of geothermal power plant operation had been felt by the affected communities that they opposed the Mak-Ban Geothermal Plant rehabilitation/ expansion. However, the social preparation conducted helped mobilized directly affected communities to participate in public hearing/ scoping, disseminate information about the project, raise issues and concerns about the effects of the plant, settlement/compensation of the damages resulting from plant operation, and the establishment of MMT.

One of the conditions of the said ECC is that the project shall set up a MMT composed of representatives from the proponent, DENR, LGUs from Batangas and Laguna provinces, PO, NGO, DOE and academe (UPLB). PGI, the partner of NPC initiated the MMT organization in 2003, until the project became the pilot plant for the SEPMES-PEISS (Strengthening Environmental Performance and Monitoring evaluation System of the Phil. Environmental Impact Statement System) project in 2004. The MOA for the establishment of MMT, EGF and EMF was signed on 2006. Since then, regular quarterly monitoring was done. Then the ownership of Makban Geothermal Power Plant (MBGPP) was transferred to AP Renewables Inc. (APRI), a wholly owned company of the AboitizPower Corporation , after the turnover of the facilities from the National Power Corporation through the Power Sector Assets and Liabilities Management (PSALM) Corporation in May 25, 2009. APRI adopted the MMT left by NPC and continued its activities up to present. In the years that the MMT had been in operation, members had learned to appreciate the presence and importance of the project, the intention and openess of the proponent to comply and adhere to the conditions and stipulations of their ECCs and Environmental Management Plan. To date, Makban MMT has already its Environmental Management System Manual that is based on the requirements of Makban MMT-MOA, MOO, DAO 2003-30 and the concept of ISO 9001-2000 standards. The EIA Process as seen by LGU (Province of Batangas) Public participation in the EIA process through public hearing/scoping/consultation, information campaign, and participation in MMT validate social acceptability of a project. It is seen as the most important feature of the present system as this gives consideration and answers to the concerns of all stakeholders either socio-economic or environmental. As observed however, it is suggested that social acceptability be validated also in other projects such as poultry/pig farm and quarrying where complaints are common among the adjacent communities. The ECC and CNC. The issuance of ECC or CNC is a mandate of the DENR through EMB. DAO 1992-30 however, created confusion on the part of local governments. It is stated there that provincial government has the function to issue ECC for projects classified as Kalakalan 20 or Countryside and Barangay Business Enterprise under RA 6810 (year 1989) meaning projects or undertaking with a total assets of not more than Php500,000.00. There is no more Kalakalan 20, there is now Barangay MicroBusiness Enterprise (BMBE) under RA 9178 (year 2002) but projects classified as BMBE fall under CNC. Since it is the DENR-EMB issues the ECC and CNC and in order to avoid confusion among local government, it is suggested, that DAO 1992-30 be amended in such a manner that the functions of the local government will be in line with the present EIA system. The Multipartite Monitoring Team. MMTs are organized to encourage public participation, to promote greater stakeholder vigilance and to provide check and balance mechanisms in monitoring project implementation. The following are some of the advantages of the involvement or presence of LGU as members of the MMT:

The MMT members from LGU can tap the proponent’s CSR projects/assistance and they can help in determining the veracity of the delivery of social development projects to their respective constituents;

Able to inform/advise/provide update to the local chief executive on issues relative to the project being monitored; conditions and stipulations on the Environmental Compliance Certificate and Environmental Management Plan that the proponent needs to comply; presence of Environmental Monitoring Fund and Environmental Guarantee Fund that are use for environmental monitoring and use for payment of environmental damages as a result of the construction/operation of the project, respectively.

The LGU representatives can also inform/advise/update project proponents on the regulation of the local government that might affect their plans;

Helps identify/determine/raise other issues and concerns that were not brought out or cannot be directly brought out during formal meetings or consultations;

Participation in the MMT monitoring activities eliminates the redundancy of monitoring the project by local government; and,

Professional/Personal advancement of LGU personnel/representatives by gaining knowledge on the operation of the project/industry and being able to compare efficiency or performance of one project/industry to a similar project/industry.

As observed there are also some concerns that need to be addressed in MMT organization and operation, such as: The MOA creating the MMT, establishment of EMF, and EGF. It has been

observed that in the signing of the MOA, due to the difference in the schedule of the parties (main and conforming parties and witnesses), the MOA is routed to the signatories. As commonly observed, it is stalled when it reached the local governments for several reasons, but the most common is that the local chief executives still need an authorization from their respective sanggunians to sign such MOA in compliance to the requirements of RA 7160 or Local Government Code. The delay in the completion of signatures in the MOA often resulted to the delay in the operation of the MMT. In order to avoid this, DENR should coordinate with DILG for the issuance of an administrative order that will direct LGUs from province, city/municipality and barangay to actively participate in the EIA process particularly in participation to MMTs for projects in their respective areas.

Changes of people or members of the MMT.

MMT members initially are trained on different aspects of environmental monitoring to understand and be oriented on the things that should be monitored. However, during changes in the administration that usually happens like in the case of local governments, new members are usually sent to the MMT that need to be given another orientation. Old issues and concerns are being raised again by new members and some ask provisions of items not included in the AWFP.

Frequent changes also of people under DENR/EMB offices (such as Regional Director, PENRO, CENRO and others) who issue or make different instructions also contributed to the delay in the operation of the MMT or more often confuse other MMT members. The MMT meetings become orientation meetings for the new DENR/EMB officer.

It is recommended that issues and concerns should be clarified, resolved, documented and filed. All new members should be given such document as their reference. It is also suggested that all MMT meetings be conducted to project site in order to discuss issues and concerns thoroughly, and to inspect project whenever necessary.

The Environmental Monitoring Fund

Most project proponents with MMT had difficulty in establishing separate bank account for EMF since MMT is not a SEC recognized entity. As such, EMF or MMT expenses are usually charged from an account under the operational expenses of the proponent.

The “Allowance”. As defined in Government Accounting and Auditing Manual (GAAM) Volume II Government Accounting (1992), allowances are emoluments granted in addition to fixed compensation or in exchange for services rendered and paid or given in cash or in kind to officers and employees entitled thereto under a specific authority of law. All allowances except those defined by DBM are deemed included in the standardized salary rates per.According to Meriam-Webster, Free Dictionary, it is the amount of

something that is permitted, esp. within a set of regulations or for a specified purpose.

The previous Procedural Manual for DAO 1996-37 included honoraria as allowable expenses that may be charged to the EMF. However, it mentioned that payment of honoraria using the amount allocated for EMF is not allowed unless otherwise prescribed in that manual, and that DBM guidelines on the granting of honoraria may be used as a guide. On the other hand, under Annex 3-5 of the Revised Procedural Manual for DAO 2003-30, C. Allowable Expenses under the EMF, Number 4, did not mention honoraria but allowances instead. Further, it mentioned that payment of allowance shall be commensurate to services rendered by the MMT members for actual MMT activities. DBM guidelines on the granting of allowances shall serve as the guide. However, this provision appears confusing to MMTs because of Number 2 of Allowable Expenses under the EMF regarding Board and Lodging, where it is mentioned that allowance or per diem shall only be granted for the duration of the fieldwork including provision of reasonable travel time, such allowance should not be in excess of twice (2x) the existing government rate for such travel or fieldwork, and at no instance should such allowance be granted for travel of less than fifty (50) kilometers in distance as reckoned. As stated in the procedural manual, the decision to receive allowances by other government officials or personnel is left to their discretion and judgment, keeping in mind, the appropriate civil service rules and anti-graft laws. It is stated also that membership in MMT or other such group is considered as public service. Such membership is not supposed to be used as an excuse for income augmentation.

As a personnel from local government, we often wonder why is there such provisions in the manual where in fact the primary agency members receive, and the fact that allowance/honorarium is included on the annual work and financial plan endorsed by majority of the MMT members and approved by the MMT Chairman or EMB Director or Regional Director.

The instructions regarding allowance are different on actual scenario. In almost all MMT activities that will include the MMT members or even a single member from the Execom, Sectoral, or Secretariat, there is allowances/ honorarium involved even in the attendance to MMT related seminars. Allowance or Honorarium, it is still the same. There is always an apprehension particularly among non-DENR/EMB members to discuss the matter particularly during annual planning because of those provisions on the procedural manual. It is suggested to make a clear policy on this, determine who are entitled to receive, the amount and the conditions when to received. In doing so, MMT members can show legal bases to answer critics that “MMTs are paid witnesses or team”.

The Environmental Guarantee Fund

As stated in Annex 3-6 of the Revised Procedural Manual for DAO 2003-30, the EGF is a fund that proponents shall commit to establish to answer for damage to life, property, and the environment caused by such risk, or requiring rehabilitation or restoration measures. It shall also be used to implement damage prevention measures, environmental education, scientific or research studies, IEC, training on environmental risk or environmental accident-related matters. The EGF Cash Fund that is opened in interest-bearing accounts, though it is stated that the interest shall accrue to the Cash Fund, the issue is what would be the use of the interest of EGF Cash Fund considering that the said amount is already an excess of the agreed EGF Fund. It was an experience in some MMTs where there had been attempts to use the amount of interest for IEC or training. The concerned proponent insisted that expenses for IEC and training are usually provided by the proponent in EMF. In fact, there are MMTs where the operational expenses of EGF Committee are charged to EMF. Since environmental enhancement, safety or damage prevention are part of the maintenance program of a project, it is suggested that the EGF be used only when there is accident that payment of damages or rehabilitation or restoration is justified, and only then that other expenses related to such incident such as IEC can be charged to EGF.

Lifespan of MMT. Based on experience, there are are MMTs that should be terminated. This include MMTs for subdivisions that maangement are already turned-over to homeowners association. The DENR-EMB should conduct audit of all MMTs to determine those that can be terminated or dissolved, and provide clear guidelines regarding termination of MMTs.

The Challenges of Participation in the Present EIS System: The Provincial Government of Batangas

Experience

By: LUIS A. AWITANDepartment Head, PG-ENRO Batangas

PG-ENRO

MMT Membership:• Mak-Ban Geothermal Power Plant (MBGPP);• Shell-Malampaya On Shore Gas Plant;

• KEPCO Ilijan Power Plant;

• SEM-Calaca Power Plants;

• JG Summit Petrochemical Project;

• First Gas Power;

• Phoenix Petroterminal Industrial Park;

• Batangas City Sanitary Landfill;

• Central Azucarera Don Pedro, Inc;

• LANDCO Residential Resort Projects;

• Etc.

1973 - MBGPP project came into being without going through the rigors of EIS

1992 - two ECCs wereissued: for Binary Cycleand Modular TurbineGenerating Plants

• Public hearing was notconducted, organization ofmulti-sectoral monitoringnot implemented

In compliance to DAO 96-37, MBGPP rehabilitation/ expansion was subjected to EIS – ECC was issued in 2002

• Effects of years of geothermal operation had been felt that there was strong opposition to the project

• Social preparation helped mobilized the people to participate in hearing/scoping and in MMT formation

2003, NPC & PGI initiated the formation of MBGPP-MMT

2004, “guinea pig” for the SEPMES-PEISS

2006, MOA for the MMT, EMF and EGF was signed.

2009, MBGPP ownership was transferred to APRI

• APRI adopted and supported the MMT

To date, Makban MMT has already its EMS Manual based on the requirements of MMT-MOA, MOO, DAO 2003-30 and the concept of ISO 9001-2000 standards

2012, MBGPP-MMT Audit facilitated by EMB-CO

• high scores in the criteria of Operations, MOO, COE, CMVR and MMT Functions

• Discovered that they could already audit other MMTs

MBGPP-MMT one of the best MMT in Batangas Province

The best of its kind that covers two geopolitical units

Some advantages of the involvement or presence of LGU as members of the MMT:

• Tap/Verify the proponent’s CSR projects/assistance;

• Advise LCEs on the status of the project;

• Advise proponent on LGU’s regulations;

• Helps identify/raise other issues and concerns;

• Eliminates redundancy of monitoring the project;

• Personal advancement of LGU representatives;

Challenges of EIS Participation:

On MMT:

MOA establishing the MMT, EMF, and EGF. Signing isstalled/delayed in the local governments fordifferent reasons.

• DENR should coordinate with DILG for anadministrative issuance that will direct LGUs toactively participate in the EIA process.

MOA cast in stone. MMTs whose MOAs were based onDAO 96-37 has a different set of membership to that ofprepared based on DAO 2003-30. Which will prevailthe MOA or the present guidelines? Need for anoperative guidelines.

Challenges . . .

Changes of people or members of the MMT.

• Resolve and document all issues and concerns.Provide all new members for their reference.

• MMT meetings should be in project site, toinspect project whenever necessary.

On EMF. Difficult separate bank account for EMF,since MMT is not a SEC recognized entity – allow tobe part of operational expense of the proponent.

Challenges . . .

• “Allowances” are emoluments granted in additionto fixed compensation . . . paid or given . . . under aspecific authority of law. All allowances exceptthose defined by DBM are deemed included in thestandardized salary rates (GAAM Vol. II. 1992).

On EMF .

• It is the amount of something that is permitted,esp. within a set of regulations or for a specifiedpurpose (Meriam-Webster, Free Dictionary).

Challenges . . .“Allowances”

• Confusing guidelines on Allowance (Annex 3-5. C.)

° No. 4. Payment . . . shall be commensurate toservices rendered by the MMT members foractual MMT activities.

° No. 2. shall only be granted for the duration ofthe fieldwork . . . should not be in excess of twice(2x) the existing government rate . . .

vs

Challenges . . .“Allowances”

• The decision to receive allowances by othergovernment officials or personnel is left to theirdiscretion and judgment, keeping in mind, theappropriate civil service rules and anti-graft laws...

• WHY that statements? All members received, it isincluded in the approved AWFP.

• Make a clear policy on who are entitled and thelimitations or conditions when to receive such.

Challenges . . .

On EGF Cash Fund opened in interest-bearingaccounts. Use of the interest of EGF Cash Fund - itsalready an excess of the agreed EGF Fund?

• Environmental enhancement, safety or damageprevention are part of the maintenance programof a project. EGF be used only for payment ofdamages or rehabilitation or restoration.

Lifespan of MMT. DENR-EMB should conduct audit of allMMTs to determine those that can be dissolved andprovide clear guidelines on this.

Challenges . . .

• Public participation. Social acceptability be validated inother projects where complaints are common amongadjacent communities.

• ECC and CNC Issuance. Amend DAO 1992-30 thatLGU’s functions are in line with the present EIA system.

• Frequency of Monitoring & Reduction of MonitoringStations. Need a specific policy on the reduction ofmonitoring station and frequency of monitoring.

Challenges . . .

Comments: projects with ECC with MMTs are wellmonitored compared to projects with ECC butwithout MMT and there are projects or undertakingswithout ECC that are not even check or monitored.

Forging partnership? LGU’s role is limited only topublic participation: in public hearing/scoping/consultation, in information campaign, and inparticipation in MMT.

Thank You.