10-12
Chapter 10
Administrative Appeals, Fines, Penalties and Sanctions
Section 1.0 of Article VI: Appeal to the Office of the
Secretary
Any party aggrieved by the final decision of the RED
may, within 15 days from receipt of such decision, file an
appeal with the Office of the Secretary. The decision of
the Secretary shall be immediately executory.
NOTES:
Final decisions of the RED may be appealed. These
decisions include those relating to the issuance or non-
issuance of an ECC, and the imposition of fines and
penalties. Resort to courts prior to availing of this
remedy would make the appellant�s action dismissible on the
ground of non-exhaustion of administrative remedies.
The right to appeal must be exercised within 15 days
from receipt by the aggrieved party of such decision.
Failure to file such appeal within the requisite period will
result in the finality of the RED�s decision, which can no
longer be disturbed.
An appeal shall not stay the effectivity of the RED�s
decision, unless the Secretary directs otherwise.
The right to appeal does not prevent the aggrieved
party from first resorting to the filing of a motion for
reconsideration with the RED, to give the RED an opportunity
to re-evaluate his decision.
A proponent whose ECC application is denied may also
choose to file a new ECC application. The filing of a new
application shall, however, result in the waiver of
proponent�s right to file a motion for reconsideration or
appeal from the order denying its original application. The
EMB or Regional Office can not refuse to accept the new
application and may only deny said application if it appears
that said application does not differ significantly from the
first application or if the EIARC determines that the new
application is still environmentally unacceptable.
Section 2.0 of Article VI: Grounds for Appeal
The grounds for appeal shall be limited to grave abuse
of discretion and serious errors in the findings of fact
which would cause grave or irreparable injury to the
aggrieved party. Frivolous appeals shall not be
countenanced.
NOTES:
How is an appeal made?
Within fifteen (15) days from receipt of the decision
sought to be appealed, the aggrieved party must file a
Notice of Appeal with the Records Office of the EMB or the
Regional Office, as the case may be, copy furnished the
Records Office of the DENR and non-appellant stakeholders.
Such Notice of Appeal, which may be in the form of a letter
or a pleading, should clearly state the basic terms of the
Order being appealed from, the grounds for the appeal, and
the fact that the notice is being made within the prescribed
period. A certified true copy of the decision being
appealed from should be annexed to said notice of appeal.
Other documents supporting the appeal, such as proof of
service of the Notice to concerned parties, should likewise
be annexed to the Notice.
Upon a prima facie finding that the appeal is
meritorious, the Secretary shall issue an Order requiring
the EMB or Regional Office to forward the relevant documents
to the DENR (Office of the Secretary), and the non-appellant
stakeholders to file their comments to the appeal.
Based on the documents provided by the appellant, non-
appellant stakeholders, and those elevated by the EMB or
Regional Office, the Secretary shall render a decision on
the appeal.
While the remedy of appeal is made available to
aggrieved parties, such appeal must not be frivolous, it
should have adequate basis. DAO 96-37 limits these grounds
to grave abuse of discretion and findings of fact that would
cause grave or irreparable injury to the aggrieved party.
Any appeal must, therefore, allege the existence of any, or
both, of these grounds, and be supported by facts that tend
to establish any, or both, of these grounds.
Examples of these grounds would include, but would not
be limited to, any of the following situations:
1. Valid issues and concerns raised by the stakeholders
were not addressed in the final EIS or IEE, or
agreements and understanding between proponent and
stakeholders were not incorporated in the EIS or IEE;
2. The proponent or preparer did not meet all the legal
requirements nor follow the required procedures of the
EIS System. For example, the LGU concerned was not
informed or consulted about the project, as required
under the Local Government Code.;
3. There are erroneous claims and inaccurate information
that were made part of the findings of the submitted
EIS or IEE;
4. The RED, despite having knowledge of the violations or
illegal practices of the proponent or the preparer in
the conduct of the EIS or IEE, still issued an ECC;
5. The RED's decision was not based on the EMPAS report,
except in cases when the RED has information that runs
counter to the findings of the EMPAS; and
6. The EIS or IEE was not done by an accredited or
eligible preparer.
Section 3.0 of Article VI:Who May Appeal
The proponent or any stakeholder, including but not
limited to, the LGUs concerned and affected communities, may
file an appeal.
NOTES:
The right to appeal is not limited to the proponent,
but to any stakeholder. Stakeholders are defined under
Section 3(dd), Article I of DAO 96-37 as follows:
�persons who may be significantly affected by the
project or undertaking, such as, but not limited
to, members of the local community, industry,
local government units (LGUs), non-governmental
organizations (NGOs), and people�s organizations
(POs).�
ARTICLE IX
FINES, PENALTIES AND SANCTIONS
COMMENTS:
The penalties provided in DAO 96-37 apply to projects
which are covered by the EIS System. Those which do not
fall within the EIS System and later discovered to be
environmentally damaging shall be covered by the provisions
of Presidential Decree No. 984, the Pollution Control Decree
of 1976, Republic Act No. 6969, the Toxic and Hazardous
Substances Act, and other relevant laws, rules and
regulations.
Section 1.0 of Article IX: Administrative Investigation
Penalties shall be imposed after an investigation
wherein the respondent shall be given notice and afforded an
opportunity to be heard. The investigation report prepared
by the hearing officer shall include the following matters:
a. a brief background of the project,
including previous violations committed by
the respondent, if any;
b. the provision of law or rules and
regulations, ECC conditions, or EMP
provisions violated;
c. findings of fact, including the results
of any measurement, sampling or monitoring
activities conducted either by the EMB, the
DENR Regional Office, DENR-accredited
research institutions, or academic and/or
technical organizations and the results
obtained and the corresponding adverse
impacts caused by the violations; and
d. the recommended amount of fine to be
imposed.
NOTES:
Draft orders for signature of the Secretary, EMB
Director, or the RED should always be accompanied by an
investigation report, to which should be annexed a copy of
the report embodying the findings of fact. Otherwise, the
Secretary, EMB Director, or the RED would not have adequate
basis to decide on the recommendation. Moreover, proper
documentation of the process leading to the imposition of
fines and penalties will facilitate administrative and
judicial review of the Secretary or RED�s decision.
Respondent�s opportunity to be heard does not require
the conduct of an actual hearing, unless the nature and
magnitude of the offense would call for such hearing. The
exchange of notices and explanations between the DENR and
the respondent would, in most cases, be sufficient for
purposes of complying with the due process requirements.
Section 2.0 Submission of Report to EMB Director/RED
The report shall be submitted to the EMB Director or
the RED, as the case may be, for appropriate action.
NOTES:
Recommendations for the imposition of fines and
penalties for projects which are environmentally critical
shall be submitted to the EMB Director. A recommendation
may, however, also be submitted directly to the Secretary,
since the EMB Director is the Secretary�s alter ego with
respect to the EIS System. Recommendations for the
imposition of fines and penalties for projects found in
environmentally critical areas should be submitted to the
RED under whose territorial jurisdiction the project falls.
In case the Secretary, EMB Director, or the RED is not
available, then the person who assumes his responsibility
during his absence would have authority to receive and
review the recommendation.
Section 3.0 Decision of the EMB Director/RED
The EMB Director or the RED shall issue a decision
based on the investigation report within 15 days from
receipt of the report.
Section 4.0 Appeal to the Secretary
The decision of the EMB Director or the RED may be
appealed to the Secretary within 15 days from receipt of a
copy of the decision.
Section 5.0 Cease and Desist Order (CDO)
The EMB Director or the RED may issue a Cease and
Desist Order (CDO) in order to prevent grave or irreparable
damage to the environment. Such CDO shall be effective
immediately. An appeal or any motion seeking to lift the
CDO shall not stay its effectivity.
NOTES:
A CDO is usually issued when the respondent establishes
or operates a project without an ECC. Violation of ECC
conditions, EMP rules and regulations, and
misrepresentations in the EIS or IEE and related documents
may also warrant the issuance of a CDO in order to prevent
grave or irreparable damage to the environment.
A CDO should, in most cases, be issued only after due
investigation. However, when there is high risk of grave or
irreparable damages to the environment, the Secretary, EMB
Director, or RED may decide to issue a CDO together with the
Notice of Violation.
Procedures:
Once a violation has been identified, EMB or DENR-RO shall
undertake the following:
� give WRITTEN notice to the respondent proponent about
the alleged violation, and give the respondent the
opportunity to explain in writing within an appropriate
period (usually seven (7) to thirty (30) days) why it should
not be imposed the proper penalty, which notice is usually
called a Notice of Violation or Show Cause Order;
� investigate the matter and, based on such
investigation, as well as the explanation submitted by the
respondent, if any, prepare a report which shall include the
following:
a.a brief background of the project, including
previous violations committed by the respondent, if
any;
b.the provisions of law or rules and regulations, ECC
conditions, or EMP provision violated;
c.findings of fact, including the results of any
measurement, sampling or monitoring activities
conducted either by the EMB, the DENR Regional
Office, DENR-accredited research institutions,
academic and technical organizations, and the
results obtained and the corresponding adverse
impacts caused by the violations; and
d.the recommended amount of fine to be imposed, as
well as other appropriate recommendations (filing of
court case, issuance of CDO, etc.)
The report may, in most cases, be based on site
inspection and verification, as well as documents submitted
by respondent and other concerned parties.
� submit the report to the Secretary, the EMB Director
or the RED, as the case may be, for appropriate action;
� the Secretary, EMB Director or the RED shall issue a
decision based on the investigation report within 15 days
from receipt of the report.
The decision of the EMB Director or the RED may be
appealed to the Secretary within 15 days from receipt of a
copy of the decision.
Should the decision of the Secretary, EMB Director, or
the RED not be complied with by respondent, the Secretary,
EMB Director, or the RED may issue another order reiterating
the contents of the first order, and imposing more stringent
fines and penalties. Non-compliance with the orders issued
by the Secretary, the EMB Director, or the RED constitute an
offense separate and distinct from the offenses subject of
the order.
Section 6.0 Scope of Violations
NOTES:
The imposition of penalties under this, and other
relevant sections does not prevent the DENR from imposing
other fines and penalties under other applicable provisions
of law, such as Presidential Decree No. 705, the Revised
Forestry Code, Presidential Decree No. 984, Republic Act No.
6969, and other relevant laws, rules, and regulations, nor
from filing criminal actions, if appropriate.
Violations under the EIS System are classified as
follows:
a. Projects which are established and/or
operating without an ECC
Any project or activity which has been
classified as environmentally critical and/or
located in an environmentally critical area
established and/or operating without a valid ECC
shall be ordered closed, through a CDO, without
prejudice to its applying for an ECC pursuant to
the process outlined in this Order after the
payment of a fine of P50,000.00 for every
violation.
NOTES:
Section 4 of Presidential Decree 1586 explicitly states
that no person, partnership or corporation shall undertake
or operate any environmentally critical project or project
located in an environmentally critical area without first
securing an ECC. Pendency of an ECC application before the
EMB or Regional Office will not excuse any respondent from
the aforequoted provision. Moreover, possession of a
certificate of non-coverage issued under DENR Administrative
Order No. 21, Series of 1992 is not an adequate defense
against the imposition of fines and penalties under DAO 96-
37, since several heretofore exempted or exemptible projects
under the former DAO are now covered under DAO 96-37.
Respondent has the burden of proving that its project
is not covered by the EIS System under DAO 96-37.
Payment by respondent of the P50,000.00 fine will not
justify the continuation or resumption of development
activities or operation, since only the eventual issuance to
respondent of an ECC will authorize such development
activities or operations. The fine is simply the basic
penalty that, in certain instances, may be reinforced by the
issuance of a CDO.
While a respondent who is found violating this
provision may still apply for an ECC, its ECC shall not be
acted upon until it ceases development and operations and
pays all the fines imposed upon it. Such proponent must be
aware, however, that its operations prior to the issuance of
an ECC in its favor may be taken against it and result in
denial its ECC.
b. Projects Violating ECC Conditions, EMP Rules
or Regulations
Projects violating any of the conditions in
the ECC, EMP or rules and regulations pertaining
to the EIS System shall be punished by suspension
or cancellation of its ECC and/or a fine in an
amount not to exceed P50,000.00 for every
violation of an ECC condition, or the EMP, or the
EIS System rules and regulations. The suspension
or cancellation of the ECC shall include the
cessation of operations through the issuance of a
CDO.
NOTES:
Violation of one condition in the ECC is an offense
separate and distinct from the violation of another
condition. Thus, it is possible for a respondent to be
subject to a fine of more than P50,000.00 if more than one
(1) ECC condition is violated.
Failure to pay the fine imposed by the Secretary, EMB
Director or the RED constitutes an offense separate from the
original offense that brought about the imposition of the
original fine and may warrant the imposition of another
fine, and/or the issuance of a cease and desist order.
c. Misrepresentations in the IEE/EIS or other
documents
Misrepresentations in the IEE/EIS or any
other documents submitted by the proponent
pursuant to this Order shall be punished by the
suspension or cancellation of the ECC and/or a
fine in an amount not to exceed P50,000.00 for
every misrepresentation. The proponent and the
preparer responsible for the misrepresentation
shall be solidarily liable for the payment of the
fine, without prejudice to the withdrawal of
accreditation of the preparers involved.
NOTES:
All misrepresentations, whether material or minor,
constitute violations under DAO 96-37, on the theory that
full disclosure in the EIS or IEE is the key to the
effective use of the EIS System as a planning, management,
and regulatory tool.
Solidary liability means that the proponent and the
preparer may each be held liable for the payment of the
fine.
It should be noted that the sum of P50,000.00 is fixed
if the violation falls under the first paragraph of this
section. In case of violation of ECC conditions, the EMP,
or EIS rules and regulations, the sum of P50,000.00 is set
as the maximum amount of fine per violation and can
therefore be appropriately reduced at the discretion of the
Secretary, the EMB Director, or the RED. The amount of fine
in the latter case shall consider the circumstances of each
case, i.e., impact of the violation on the environment.
Section 7.0 Administrative Authority/Sanctions
a. DENR personnel are not allowed to participate
in any manner whatsoever, directly or indirectly,
in the preparation of the EIS, or IEE, or from
soliciting favors from proponents or any
stakeholder to facilitate or influence DENR
personnel or EIARC members in the evaluation and
decision-making process. Violation of this
provision shall result in the imposition of
administrative sanctions and penalties in
accordance with Civil Service laws, without
prejudice to criminal proceedings under the Anti-
Graft and Corrupt Practices Act and other relevant
laws.
NOTES:
The essence of this provision is that DENR personnel
should not profit from performing their usual duties with
respect to the EIS System. Assisting proponents by
answering their queries however, will not constitute a
violation of this provision.
b. DENR personnel who shall fail to perform
their duties during the periods stated herein
shall submit an explanation in writing to their
immediate superior, copy furnish the Secretary and
the proponent, setting forth the reason for such
failure. Should said explanation be found
unsatisfactory by the superior, said personnel
shall be subject to the appropriate administrative
sanctions and penalties in accordance with Civil
Service laws.
NOTES:
Failure of DENR personnel to perform their duties
during the periods stated in DAO 96-37 will not entitle the
proponent to issuance of an ECC. The personnel who fail to
perform their duty within the period provided in DAO 96-37
however, will be subject to the appropriate administrative
sanctions and penalties.
Section 8.0 Records-keeping and Accountability of the
DENR for Submitted Documents
The DENR, pursuant to Article II, Section 7, and
Article II, Section 28 of the 1987 Constitution, and
Executive Order No. 87, Series of 1993, shall ensure the
implementation of the Government�s policy and accessibility
and transparency at every phase of the EIS process.
The EMB/EMPAS shall be responsible for records-keeping
of all documents submitted by the proponents applying for
ECCs. All documents generated during the processing of
applications shall be considered public documents. The DENR
shall set up an orderly and systematic procedure for filing,
retrieving, and providing public access to all EIA-related
documents. No employee of the DENR may release any document
without a written request and proper authorization from the
head or duly authorized officer of the corresponding office.
NOTES:
How can a person obtain access to EIS-related documents?
1. The requesting party must submit a written request
addressed to the EMB or the DENR- RO (EMPAS) stating
the title of the document(s) and purpose of the
request.
2. The request letter is received by the EIA or EMPAS
personnel who refers the letter to the Records Unit or
the person concerned. If the document is unfamiliar to
the Records Unit, the EIA personnel checks with the
Document Tracking Database System (DTDS), the index
card or the log book.
3. Once the requested document is verified to be available
in the files, this is retrieved by the EMB or EMPAS
personnel in charge of records-keeping or filing and
given to the requesting party. If it is not available,
then a verbal response is given to the requesting
party.
4. The requesting party cannot bring the document outside
the premises of the Regional Office (EMPAS) or the EMB
(EIA Division), but may review the document inside the
EMPAS Office or the Office of the EIA Division.
Photocopying may only be done within the building, in
the presence of a DENR employee.
How can a proponent inquire about the status of his or her
ECC application?
1. The requesting party or proponent states the title or
name of his or her project and the date of submission.
2. The EMB or EMPAS personnel refers to the Document
Tracking Database System (DTBS) in the computer and
then provides the requesting party a verbal response.
3. For other EIS-related inquiries, the requesting party
can just state his or her queries verbally while the
EMB personnel operates the DTBS.