Q. No. 13 | Political Law | Bar 2023
Maasikaso Water Company (MWC), a private concessionaire, entered into a 25- year concession agreement in 2009 with the Metropolitan Waterworks and Sewerage System (MWSS) for the delivery of water supply, wastewater, and sanitation services in the City of Manila.
In 2019, residents of Manila filed a complaint against MWC with the Department of Environment and Natural Resources Pollution Adjudication Board for violation of the Clean Water Act (CWA).
The residents alleged that the severe flooding in Manila and worsening pollution in Manila Bay had been due to the failure of MWC to provide for adequate sewage and/or septage treatment facilities, as mandated under the concession agreement.
MWC countered that the primary duty to construct sewage and/or septage treatment facilities rests upon the local government unit (LGU) under Section 7 of the CWA, which states:
“Each LGU shall appropriate the necessary land, including rights-of-way/road access to the land for construction of the sewage and/or septage treatment facilities”.
MWC thus maintained that it must be absolved from any form of liability considering that the City of Manila clearly failed to comply with Section 7 of the CWA. Is MWC correct? Explain.
SUGGESTED ANSWER:
MWC is not correct.
Under Section 8 of the Clean Water Act (CWA) (Republic Act No. 9275), the local government unit concerned shall be responsible for the planning, development, and implementation of septage management programs."
While Section 7 of the Clean Water Act requires local government units (LGUs) to appropriate land and rights-of-way for the construction of sewage and/or septage treatment facilities, Section 8 clearly outlines the responsibility of the LGUs in planning and implementing septage management programs. In this case, Manila City, as an LGU, is mandated to manage its septage, ensuring proper treatment facilities are in place.
Meanwhile, the concession agreement between Maasikaso Water Company (MWC) and the Metropolitan Waterworks and Sewerage System (MWSS) does not absolve MWC from complying with the Clean Water Act.
Even though the agreement is in place, MWC is still bound by national laws and regulations, including the CWA. MWC cannot use the failure of the LGU to fulfill its responsibilities as a defense against the allegations of violating the CWA.
The pertinent provision of the REPUBLIC ACT 9275 AN ACT PROVIDING FOR A COMPREHENSIVE WATER QUALITY MANAGEMENT AND FOR OTHER PURPOSES provides:
“SEC. 2. Declaration of Policy. - The State shall pursue a policy of economic growth in a manner consistent with the protection, preservation and revival of the quality of our fresh, brackish and marine waters. To achieve this end, the framework for sustainable development shall be pursued. As such, it shall be the policy of the State:
X x x
f) To encourage cooperation and self-regulation among citizens and industries through the application of incentives and market-based instruments and to promote the role of private industrial enterprises in shaping its regulatory profile within the acceptable boundaries of public health and environment[.]”
X x x
SEC. 28. Fines, Damages and Penalties. - Unless otherwise provided herein, any person who commits any of the prohibited acts provided in the immediately preceding section or violates any of the provision of this Act or its implementing rules and regulations, shall be fined by the Secretary, upon the recommendation of the PAB in the amount of not less than Ten thousand pesos (P10,000.00) nor more than Two hundred thousand pesos (P200,000.00) for every day of violation. The fines herein prescribed shall be increased by ten percent (10%) every two (2) years to compensate for inflation and to maintain the deterrent function of such fines: Provided, That the Secretary, upon recommendation of the PAB may order the closure, suspension of development or construction, or cessation of operations or, where appropriate disconnection of water supply, until such time that proper environmental safeguards are put in place and/or compliance with this Act or its rules and regulations are undertaken. This paragraph shall be without prejudice to the issuance of an ex parte order for such closure, suspension of development or construction, or cessation of operations during the pendency of the case. Failure to undertake clean-up operations, willfully, or through gross negligence, shall be punished by imprisonment of not less than two (2) years and not more than four (4) years and a fine not less than Fifty thousand pesos (P50,000.00) and not more than One hundred thousand pesos (P100,000.00) per day for each day of violation. Such failure or refusal which results in serious injury or loss of life and/or irreversible water contamination of surface, ground, coastal and marine water shall be punished with imprisonment of not less than six (6) years and one (1) day and not more than twelve (12) years, and a fine of Five hundred thousand pesos (P500,000.00) per day for each day during which the omission and/or contamination continues. In case of gross violation of this Act, the PAB shall issue a resolution recommending that the proper government agencies file criminal charges against the violators.
Hence, MWC is not correct in arguing that it should be absolved from liability. According to the Clean Water Act, the responsibility for managing septage lies primarily with the local government unit. However, this does not exempt private concessionaires like MWC from their obligations under national environmental laws. MWC remains accountable for compliance with the CWA, irrespective of the actions or inactions of the local government. Therefore, MWC can be held liable for violations of the Clean Water Act, and the residents' complaint against the company is valid based on the law.
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