PAB Resolution No. 4 Series of 2003 Guidelines on the Fine Rating System under the Implementing Rules and Regulations of the Philippine Clean Air Act of 1999 for Stationary Sources

'" ,;r,,t: ,-, , .•. ,,,,, /'.' ~;. , 'l Republic of the Philippines Department of Environment and Natural Resources POLLUTION ADJUDICATION BOARD EMB Building, DENR Compound, Visayas Ave", Dilirnan, Quezon City PAB Resolution No. 04 Series of2003 Guidelines on the Fine Rating System under the Implementing Rules and Regulations of the Philippine Clean Air Act of 1999 for Stationary Sources Whereas, Republic Act (RA) 8749 provides that for actual exceedance of any pollution or air quality standards under this Act or its rules and regulations, the Department, through the Pollution Adjudication Board (P AB), shall impose a fme of not more than one-hundred thousand pesos (PhP I 00,000.00) for every day of violation against the owner or operator of a stationary source until such time that the standards have been complied with. Whereas, RA 87 49 also provides that for the purposes of the application of the fmes, the P AB shall prepare a fine rating system to adjust the maximum fme based on the violator's ability to pay, degree of willfulness, degree of negligence, history of non-compliance and degree of recalcitrance. Provided, that in the absence of any extenuating or aggravating circumstances, the amount of fine for neg)igence shall be equivalent to one-half of the fme for willful violation. RESOL Vll:D, as it is hereby resolved, that the following are the guidelines for rating fmes. Guideline I , Title and Construction Section I. Title - These Guidelines shall be known as the Guidelines on the Fine Rating System under the Implementing Rules and Regulations (IRR) of the Philippine Clean Air Act (CAA) of 1999 for Stationary Sources. Section 2. Applicability - These Guidelines shall apply to air pollution cases as defined by RA No. 8749 and its IRR, brought before the Board or through the Enviromnental Management Bureau Regional Office of the Department including applicable cases referred by the Laguna Lake Development Authority (LLDA) and the PENROs or CENROs through their respective offices, in the exercise of their delegated powers and functions under Executive Order (EO) No. 192. Section 3. Construction of the Guidelines - These Guidelines shall be liberally construed in order to promote compliance and to assist the parties in obtaining just, speedy and inexpensive disposition of pollution cases. Guideline II Definition of Terms "Board/P AB" shall mean the Pollution Adjudication Board "CENRO" shall mean the Community Enviromnent and Natural Resources Office "Departmenf' shall mean the Department ofEnviromnent and Natural Resources "Order" shall mean any order issued by the Pollution Adjudication Board "PCO" shall mean Pollution Control Officer duly accredited by the DENR pursuant to DENR Administrative Order No. 26 series of 1992 "PENRO" shall mean the Provincial Enviromnent and Natural R .. ~ .. , • .t.it.·e. <I;;,~..,~~.--. •ii!··•~"''"-, . ' ' 1-,\;;i,c,'f'THE''NIXl• I :lffi~fs)N~lrii/{~ R'fil •• {Olii'A'Ri} , .. iNISiRAilVE RU~~& R~~ RECEI\/J~D , ': " e:i:~ .2004 1-- . •- u V ' C•~ , , - ~• ~- ~ "1;.M/ll'!m .......,.,,,,,,-,,. ,,- ~ Guideline III Source of Emission/Air Pollutants Section 1. For any trade, industry, process and fuel burning equipment or industrial plant emitting pollutants, the following practical/applicable parameters shall be the basis of emission standard violations and shall consequently be the basis of the imposition of fines for every exceedance thereof. Sources of Emission Practical/ Applicable Parameters to be Analyzed Fuel burning equipment PM, SO,, NO,, CO, trace elements*, VOC* a) coal-fired and other relevant industrial emission b) oil-fired parameters included Ill the National c) bagasse Emission Standards for Source Specific Air d) other solid fuels such as wood, rice Pollutants (NESSAP) hulls, coconut husk etc. e) natural gas Cement Plants PM, SO,, NO,, CO, trace elements* and other relevant industrial emission parameters included in the NESSAP Furnaces (for smelting, melting, remelting etc.) PM, SOx. NO,, CO, heavy metals* and other relevant industrial emission parameters included in the NESSAP Petrochemical plants Acid mist/vapor*, VOC*, POP,*(includes but not limited to PCB's, dioxins and furans) and other relevant industrial em1ss10n parameters included in the NESSAP Chemical plants Acid mist/vapor*, VOC*, POP s* (includes but not limited to PCBs, dioxins and furans), NOx, HF and other relevant industrial emission parameters included in theNESSAP Milling process PM and other relevant industrial emission parameters included in the NESSAP Processes related to the Extractive industries PM, and other relevant industrial emission (mining, quarrying, etc.) other than cement plant parameters included in the NESSAP Geothermal power plant H2S *, heavy metals and other relevant industrial emission parameters included in theNESSAP Incinerator/Non-bum Technologies PM, heavy metals*, POP,* (includes but not limited to PCBs, dioxins and furans) and other emission parameters cited in Rule XXVIII, Section 3 of the IRR of Clean Air Act of 1999 Asbestos-based industries Asbestos*, PM and other relevant industrial e1nission parameters included in the NESSAP 2 l1rf ... c' Others not included in the above enumerated PM, SO"' NOx, CO, VOC* and other industries like wood, rattan and metal furniture relevant industrial emission parameters production, batching plant, etc. included in the NESSAP * Sampling of the parameters is subject to availability of analyzers, technical capability, and other factors Guideline IV Rating of Fines Section 1. :Bases for the Computation of Fines The following factors shall be the basis for the computation of fines with the corresponding weight/point values: a. Degree of willfulness 10 b. Degree of negligence 5 C. History of non compliance 10 d. Degree of recalcitrance - 15 e. Exceedance of standards - 60 Total 100 points Section 2. Degree of Willfulness Degree of willfulness is the refusal to comply with the requirements imposed by the Board or the EMB-Regional Office, such as but not limited to submission of compliance reports, PCO reports or any other conditions set in a P AB Order or compliance to the conditions/commitments made by respondent company during a P AB Hearing or a Technical Conference. This shall also include misrepresentation and misleading statements/data in any documents or verbal manifestation during hearings or Technical Conferences and submission of documents beyond the prescribed periods set forth under of the rules and regulations of the Board. For respondents who provide misleading statements and misrepresentation of facts, the maximum of 10 points shall apply. For any of the other violations enumerated above, the following point system shall apply: First offense Second offense Third or more offense Section 3. Degree of Negligence 3 5 10 The points assigned for degree of negligence shall automatically be one half (½) of the points assigned in the preceding section, as provided for in Paragraph 2, Section 45 of the RA 8749. However, in the presence of any of the following extenuating/aggravating factors, a maximum of 5 points shall apply: a. Non-maintenance of Air Pollution Control Facility (APCF); b. Non-completion/construction of APCF (A/C); 3 despite a valid Authority to Construct ~ c. Failure to file an appropriate motion during the period provided for by the rules and regulation; d. Failure to notify in writing the P AB and the Regional Office within twenty-four (24) hours from the time of discovery any breakdown of APCF and the Continuous Emission Monitoring System (CEMS) for any cause; or e. Operating without an APCF. The maximum points for degree of negligence shall only be 5 points regardless of the number of factors present. Section 4. History of Non-compliance History of non-compliance shall mean the frequency of air pollution cases elevated to or brought before the Board. a. First offense shall mean the first time that the case is elevated to P AB - 3 points b. Second offense shall mean non compliance with the DENR standards after a Formal Lifting Order (FLO) has been issued - 5 points c. Third offense or more shall mean non compliance with the DENR standards after the resolution of the 2nd offense - 10 points Section 5. Degree of Recalcitrance The equivalent point for recalcitrance shall be 15 regardless of the number of offenses committed. Acts of recalcitrance shall include any of, but not be limited to, the following: a. Refusal of entry to P AB authorized representative to serve and execute a P AB Order without justifiable reason; b. Non-acceptance of a PAB Order or refusal to execute the Order; or c. Non-appearance during a Technical Conference/public hearing without justifiable reasons. Section 6. Exceedance of Standards Exceedance Upto 30% Greater than 30% up to 50% Greater than 50% up to 70% Greater than 70% up to 85% Greater than 85% up to 90% Greater than 90% Point Equivalent 10 20 30 40 50 60 The results of laboratory analyses of samples collected during a company visit for inspection, investigation, monitoring, resampling etc. shall be tl1e bases for the computation of the pollution load. The following data shall be contained in the report accompanying the results of laboratory analyses: a. Flue gas emission rate (cu. m./hr); b. Number of hours per day the air pollution sources are operating4 4 c. Number of hours per day the whole plant is operating; and d. Quantity, volume or weight and kind of products produced (in a month or year). Section ?. Schedule of Fines The sum of the points obtained from the above factors (i.e. degree of willfulness, degree of negligence, history of non-compliance, degree of recalcitrance, and exceedance of standards) will determine the penalty on a per day basis. The reference table for the equivalent amount of penalty is as follows: Total Fines per day (PhP) Points Upto 30 10,000.00 31 -40 20,000.00 41 - 50 30,000.00 51 - 60 40,000.00 61 - 70 55,000.00 71 - 80 70,000.00 81 - 90 85,000.00 91 - 100 100,000.00 Sectign 8. Violator's Ability to Pay The computed fines based on the above enumerated factors may be recomputed according to the violator's ability to pay Provided however, that respondent belongs to any of the categories of Micro, Cottage and Small enterprises and shall make available to the Board documents such as but not limited to those specified in Section 2 of Guideline V herein. Section 9, Micro, Cottage and Small Enterprises Micro, Cottage and Small Enterprises as defined by SMED (Small and Medium Enterprise Development) Council Resolution No. 3, Series of 1995 (Redefinition of Micro, Cottage and Medium Scale Enterprises) are any business activities or enterprises engaged in industry, agribusiness and/or services whether single proprietorship, cooperative, partnership or corporation whose total assets, inclusive of those arising from loans but exclusive of the land on which the particular business entities' offices, plants and equipments are situated, amount to not more than Fifteen Million Pesos (PhP15,000,000.00). For Micro, Cottage and Small Enterprises, the following maximum fines shall apply: Total Assets (PhP) Total Fines fPhP) PhP150,000.00 and below 10,000.00 Above 150,000 to I M 40,000.00 Above IM to 5 M 60,000.00 Above5Mto !OM 80,000.00 Above !OM to 15 M 100,000.00 However, this provision will not apply if the emissions generated by respondent micro, cottage or small enterprise are toxic and hazardous as provided for in the DENR Department Administrative Order (DAO) no. 29, Series of 1992 for the management of toxic chemical substances and hazardous and nuclear wastes or if the respondent had previously availed of this provision. ~ 5 i. Guideline V General Provisions Section 1. A firm found violating emission standards and or related acts of violations should be notified immediately through a "Notice of Non-compliance" (NON) signed by the Regional Director (RD). In terms of procedure in the imposition of fmes, unless otheiwise revised or amended, the existing rules of the PAB shall apply. Section 2. In the resolution of computation of fines involving cases elevated to the Board, the Board may require the respondent to submit the following: a) Notarized Pollution Control Officer (PCO) Reports duly received by the Regional Office in the format provided in DAO 26 and shall contain among others the following information/data: i) Days of operation, maintenance period, shutdowns, etc.; ii) The volumetric flow rate; and iii) State of operation, i.e., at half capacity, full capacity. b) Continuous Emission Monitoring System (CEMS) print-out when applicable duly signed by the Managing Head and the PCO; c) Income Tax Retnrn (ITR), SEC/DTI registration papers and certificates reflecting the firm's present Total Assets as well as audited financial statements duly received by the SEC, covering the period and the year prior to such violation. In the case of sole proprietorship, submit financial statement duly received by the BIR covering the period of the violation. The total assets to be considered shall be the total assets during the period of violation; and d) Other documents as may be required by the Board. Section 3. For micro, cottage and small enterprises, Sections 8 and 9 of Guideline IV herein shall apply. However, should there be a change of total assets such that the enterprise no longer falls under the category of micro, cottage and small enterprises within the period of violation arising from one single sampling, then the computation of the fines shall be split into two sub­ periods. The computation of the first sub-period shall be based on Sections 8 and 9 of Guideline IV while the computation of the second sub-period shall then be based on the regnlar point system as provided herein. Section 4. Pursuant to Part XIII, Rule LIV Section 1 of the IRR of the Clean Air Act, the fines to be imposed shall be computed for every day of violation against the owner or operator of a stationary source until such time that the standards are complied with. The period to be covered shall . commence from the date of inspection and sampling wherein the findings in the inspection report and the results of laboratory analyses indicate that the emission standard(s) has been violated up to the day prior to the execution of the Cease and Desist Order (CDO) or up to the day prior to compliance with the DENR Emission standards. For example: Date of sampling Lab results Standard Remarks January 22,2001 PM=380mg/Ncm 3Q0mg/Ncm Failed Execution of COO 05February2001 (cut-offdate) Period covered for the computation. Period I: 22 January 2001 to 04 February 200~ 6 The fine shall not be applied to the periods ennmerated below: 1. Days not operating and days-of-breakdown of the pollntion sonrce and other sonrce related eqnipment or maintenance shutdowns. 1n the case of breakdowns the respondent shonld promptly (within 24 honrs) inform the Regional Office (copy furnished the P AB) in writing abont the matter. If however the twenty-four honr period falls within a holiday or a weekend then Respondent shall submit the report on the next working day; 2. Dnration of force majeure, provided respondent has given notice in writing to the Regional Office ( copy furnished the P AB) within a jnstifiable and reasonable period of time after the occurrence of the event and that respondent has not contributed to the happening of the event and/or has exercised due diligence to forestall or lessen the effect of the event; 3. Effectivity of the implementation CDO i.e. stoppage of operations in full compliance with a duly executed CDO issued by the P AB); or 4. Such other circnmstances the Board may warrant provided that there is substantial evidence to support the reduction of the fines. Section 5. Pollution exceedance on a daily basis shall be defined as non-compliance with emission standards per day regardless of the nnmber of hours the firm is in operation. A fraction of a day of plant operation shall be considered one (I) whole day of operation. For finns with more than one emission sonrce, the average of the pollution exceedance shall be computed upon recommendation of the EMB and approval of the Board and if there is non-compliance with the DENR Standards set forth in Part VII, Rule XXV, Section I Table 2 IRR of the Clean Air Act of 1999, the said exceedance shall now be the pollution exceedance which shall be applied to Section 6 of Guideline ill. The formula for the computation is hereby attached as Annex "A". Section 6. For sonrces located in non-attainment areas, Section 6 of Rule XII Part IV of the IRR of RA 8749 which states "Sources subject to the non-attainment provisions will be subject to a 100% surcharge (i.e. 200% of base) for any penalties or fines relating to a violation of the non­ attainment provisions. " shall apply. In the same marmer, Section 6 of Rule XIII, Part IV of the IRR of the Clean Air Act of 1999 which states "Sections 5 and 6 of Rule XII above shall apply to new and modified sources in non-attainment areas. " shall also apply. Section 7. Should there be a definite finding that respondent's emissions have passed the allowable DENR Emission Standards, the Board may motu propio or upon proper motion, issue a resolution formally lifting the CDO and terminating the case provided that the respondent has fully paid the fines imposed upon it. Guideline VI Miscellaneous Provisions Section I. Transitory Provision - All air pollution cases currently pending with the Board shall, within thirty (30) days from the effectivity of these rules, be subject to the provisions hereof. Section 2. Separability Clause - If any section or provision of these guidelines or part thereof is declared un9onstitutional or invalid, the other sections or provisions thereof which are not affected thereby shall continue in full force and effect. Section 3. Repealing Clause - All other policies, issuances, rules and regulations of the Board which are inconsistent with these rules are hereby repealed or modified accordingly. ~ 7 \" Section 4. Effectivity Clause - These guidelines shall take effect fifteen (15) days after publication in a newspaper of general circulation. Qll.$BQl1 Done in Qlttj tbis &dday of Del1li1111be~ thousand three. !ii:G ~-0 ~AA#C ChaW'an r}{f in tbe year of tbe Lord, two DEMET~NACIO, JR. M~~~lL RhNAT~OA 1 ~'0JL~ JARES Afy'IlI~-NY S.F. CHIU / ember ' Attested by: ~ pJ11lo Q. a aJ,v ( ANGELITA T.~B~ANTE /~ f• Board Secretary 8 Let n Cn c, P. s ANNEX "A" Number of Source Concentration of emission from one Source {mg/Nern) Concentration of emission from ith source (mg/Nern) Pollution Exceedance, in percent DENR Emission Standard Fonnula for Pollution Exceedance (for only one source): P. = (.!;;. S) X 100 s Formula for Emission Averaging (for one facility with two or more sources): n Cave [Ic.]/n i=l P. ( Cav., S) X 100 s 9