On 17 August 2018, the Department of Environment and Natural Resources (“DENR”) issued: (1) Administrative Order No. 2018-19 entitled “Guidelines for Additional Environmental Measures for Operating Surface Metallic Mines” (“DAO 2018-19”); and (2) Administrative Order No. 2018-20 entitled “Providing for a New Guidelines (sic) in the Three-Year Development/Utilization Work Program” (“DAO 2018-20”).

DAO 2018-19

DAO 2018-19 was issued pursuant to the presidential directives to regulate mining operations in the country with an eye towards sustainable development and to minimize the disturbed area by mining projects.  DAO 2018-19 covers all Mineral Agreements (“MAs”) and Financial or Technical Assistance Agreements (“FTAAs”) and other mining tenements still in the Development/Construction and Operating Periods. For purposes of DAO 2018-19, a disturbed area is understood as all surface areas where development/construction and utilization activities are ongoing or have been conducted in relation to a mining project.

DAO 2018-19 requires, among others, that: (1) all contractors and holders of other mining tenements covered by DAO 2018-19 conduct stripping activities for topsoil and subsoil collection which shall be stockpiled for revegetation and rehabilitation purposes; and (2) a twenty meter buffer zone, measured inwards from a mining tenement’s boundary and outwards from the normal high waterline of rivers and streams within the same tenement, be established within which no extraction activities and new facilities shall be allowed except for access roads and bridges. Previously existing facilities may remain provided they shall not adversely impact the environment.  Republic Act No. 7942 (the Philippine Mining Act) defines a “Contractor” as a qualified person who is a party to a MA or FTAA.

DAO 2018-19 also provides that pier stockyards shall only be utilized as a temporary stockpile area for ore prior to loading operations for shipment. The permissible period for stockpiling is dependent upon the capacity of the stockyard but shall not exceed ninety (90) days except in cases of force majeure and provided that written notice to the DENR Mines and Geosciences Bureau is given, in which case the period shall extend until the force majeure ceases.

DAO 2018-19 likewise contains a matrix which, taking into account the scale of the nickel mining operations concerned (pegged at a WMT/Year), provides for the maximum disturbed area. Generally, the maximum disturbed area allowed under the matrix is one hundred (100) hectares. However, nickel mining projects with processing plants or those with long term supply agreements with domestic processing plants are allowed a maximum disturbed area for extraction of one hundred sixty-two hectares or two meridional blocks. Areas utilized for ancillary facilities are not included in the provided limits. DAO 2018-19 further provides that temporary revegetation or progressive rehabilitation must be implemented immediately on disturbed areas exceeding the limit provided above. At all times the maximum disturbed area, as provided in DAO 2018-19 shall be observed, even in the event that a Contractor or holder of a mining tenement extends its tenement. In this case, the Contractor shall revegetate or rehabilitate an equivalent area such that the maximum disturbed area remains complied with.

Finally, DAO 2018-19 requires that all Contractors or holders of other mining tenements covered by said order annually post a Performance Bond in the amount of Five Million Pesos (Php5,000,000.00) from a duly licensed bonding company to guarantee compliance and implementation with the temporary vegetation and/or progressive rehabilitation requirements of DAO 2018-19. DAO 2018-19 likewise provides for penalties for those who do not comply with its provisions. Notably, for non-compliance with the revegetation requirements and depending on the attendant circumstances, these penalties may include cancellation of the pertinent MAs and FTAAs as well as permanent disqualification from acquiring other mining rights and interest in mining projects.

DAO 2018-20

On the other hand, DAO 2018-20 was issued pursuant to the presidential directive for strict monitoring of mining operations. Under DAO 2018-20 all Contractors under MAs and FTAAs and holders of similar mining tenements, currently under the Development/Construction and Operating Period or in the application process therefor, must submit and secure the approval of a Three-Year Development/Utilization Work Program (“3YD/UWP”) for the conduct of mining operations.

This 3YD/UWP must contain a detailed description of the course of every phase of the operations covering a three-year mining cycle of a mining tenement.  A proposed 3YD/UWP must be submitted to the concerned Regional Office (“RO”) of the DENR’s Mines and Geosciences Bureau (“MGB”) no later than sixty days prior to the expiration of the existing 3YD/UWP and shall be prepared by a by a licensed Filipino mining engineer employed and assigned to the concerned mine site. The 3YD/UWP submitted for approval must have the signed conformity of the highest official of the mine site. Within fifteen days from submission, the MGB RO must complete an initial evaluation of the proposed 3YD/UWP and endorse the same to the MGB Central Office (“CO”). Upon receipt, the MGB CO has thirty days within which to conduct its final evaluation and approval of the 3YD/UWP. In the event of any deficiencies, the MGB CO shall write the concerned party and require them to rectify the deficiency.

DAO 2018-20 provides the information and forms which must be included in the 3YD/UWP application.

Any amendments to a 3YD/UWP which entail a negative variance of at least twenty percent (20%) must be submitted to the MGB Director for his evaluation thirty days before the implementation of such revision, copy furnishing the concerned MGB RO. In the event that the MGB CO fails to notify the pertinent party of the result of the evaluation within thirty days from the Director’s receipt thereof, the same shall be deemed approved.

The foregoing administrative orders were published in the Manila Times and registered with the UP Law Center (the Office of the National Administrative Register) on 20 August 2018 and took effect fifteen days from said date, or on 4 September 2018.

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