FACT-FINDING COMMISSION REPORT
(Posted 05-30-06)

FINAL REPORT

This is the comprehensive fact-finding report of the Rapu-Rapu Fact-Finding Commission submitted to President Gloria Macapagal Arroyo.

The Rapu-Rapu Fact-Finding Commission was created in March this year, by virtue of Administrative Order No. 145, by President Gloria Macapagal Arroyo, to “Investigate the Effects of the Mining Operations of Lafayette Philippines, Inc. on People’s Health and Environmental Safety in the Municipalities of Rapu-Rapu in the Province of Albay and Prieto Diaz, Gubat, Barcelona, Bulusan, and Bacon in the Province of Sorsogon.” This is an independent commission constituted in order to “get the facts and circumstances surrounding the alleged health and environmental hazards brought about by the operations of Lafayette Philippines, Inc, and to make appropriate recommendations”.

The Rapu-Rapu Fact-Finding Commission carried out individual and group studies and investigations according to current best practice. Public hearings, key informant interviews, ocular inspection, and paper trail were undertaken. Results were discussed and analyzed collectively.

Two tailings spill incidents were the immediate causes of the health and environmental hazards in Rapu-Rapu and surrounding areas. The following narration of events surrounding the first and second tailing incidents is based on interviews with RRPI-LPI (the Lafayette group) engineers and workers, and residents who actually witnessed the incidents, and based on the reports of the Environmental Management Bureau and the Mines and Geosciences Bureau of the Department of Environment and Natural Resources Region V and official communication to the government by RRPI-LPI – the Lafayette Group.

The First Tailings Spill Incident:

Between midnight to 2 A.M. of October 11, 2005, the main pumping unit of Rapu-Rapu Processing, Inc. or RRPI malfunctioned. This main pump was supposed to pump the increasing volume of tailings from the waste pond, called events pond, located at the site of the CIL or Cyanide-in-Leach processing area (inside the gold processing plant) towards the direction of the proper and bigger tailings pond (outside the plant). Before the reported main pump malfunction, another pump was earlier confirmed defective leaving only the main pump operating until it, too, stopped functioning. There was no back-up pump to operate and to control the then increasing volume of combined tailings and process water in the events pond.

Within the next three and a half hours, a combination of slurry materials and process water overflowed from the events pond to the premises of the gold processing plant. Some flowed to the plant’s storm water drainage, and then led to the nearby waterways - the Alma and Pagcolbon Creeks.

In the afternoon of the same day, several dead fish, shrimp and crustaceans were observed floating at the mouths of the two creeks.

According to RRPI and DENR MGB V reports, an approximately 20 cubic meters of slurry materials containing a mixture of process water and other chemicals and reagents used in flotation including cyanide flowed out. Comparing the duration of the overflow up to the time the slurry materials reached Alma and Pagcolbon creeks and the distance between the events pond and these creeks, however, the Commission is convinced that the volume of the subject slurry materials is much more than the reported 20 cubic meters.

Based on the results of DENR water analysis, the slurry materials contained cyanide beyond the standard of 0.05 mg/liter. This was the cause of death of several marine organisms found at the mouths of Alma and Pagcolbon creeks. The Commission, however, thinks there were other toxic heavy metals and chemicals that should have been analyzed for proper and adequate remedial measures.

The Second Tailings Spill Incident:

With only the cleaning of the events pond done and the rest of the recommendations yet to be completed or implemented, the company resumed operations on 17 October 2005. 

Two weeks later or on 31 October 2005, it was raining heavily in the morning of that day. By 1 p.m. of the same day, the water elevation at the Lower Tailings Storage Facility was almost full due to the continuous rainfall.

The RRMI management undertook measures by constructing drainage diversion bunds and channels in order that any excess water would be directed in controlled manner over limestone drains to the main Settling Pond and then on to the Polishing Pond. These ponds are tailings storage and control facilities built around the mine site. The actions are intended to decrease the water volume inside the tailings facility and therefore to protect the integrity of the dam structure or to prevent it from collapsing.

      x x x the main cause of discharging wastewater at the U3 (by opening a certain portion) was the accumulated wastewater from the Upper Tailings Pond (UTP), spring and run-off from the upper portion of the area caused by heavy rainfall on 31 October 2005. If this wastewater is not allowed to be discharged, the accumulated wastewater and run-offs would overflow at U3 which might damage the waste dump area and there would be a more area damaged compared to allowing it to flow (sic) thru “control discharge” x x x

Backhoes were used to make an emergency drainage canal. Water was then released from the facility or dam through the canal leading to the Settling Pond then to the Polishing Pond and flowing further down to Ungay Creek and the adjacent Hollowstone Creek.

Effluents were coming out from the Polishing Pond flowing to the Hollowstone Creek.

Meanwhile, while mitigating measures were being undertaken, RRRI suspended its gold milling and CIL operations.

In the morning of 1 November 2005, fishes and other marine organisms were found dead at Ungay and Hollowstone Creeks.

As per DENR investigation report, results of water sampling analysis showed that:

1. The effluent failed to meet DENR Effluent Standards per DENR Administrative Order 90-35 for parameter cyanide; and,
2. Samplings conducted on 4 and 5 November, 2005 at most of the receiving bodies of water failed to conform with DENR Standards under DENR Administrative Order 90-34 for parameter cyanide.

The receiving bodies of water referred to are Hollowstone Creek, Ungay Creek and Binosawan River. The cyanide in the water released from the tailings dam and ponds was reported as the cause of death of various marine organisms in the said bodies of water found following the second tailing incident.

The Commission's Comments On the Tailings Spill Incidents:

In the first tailings incident, a combination of tailings and process water overflowed from the events pond. As per DENR-approved plant design, the tailings and the process water from the CIL should have been pumped towards the upper tailings storage pond so as not to cause any overflow of the contents of the events pond. The events pond was only for emergency and should have remained dry all throughout the gold processing.

The events pond, however, was being used by RRPI not for the emergency purpose it was so designed. Since RRPI began operating, the events pond had become its temporary storage of tailings and process water during gold processing. Tailings and process water from this pond were then pumped to the upper pond. By so doing, however, Lafayette rendered the events pond useless as a safeguard or emergency infrastructure in case of an event such as a tailings incident. At the time of the incident, the events pond was already half full to capacity during the night shift and then overflowed by 2:36 in the following morning. 

The pump that directs the tailings and process water from the events pond to the upper pond has malfunctioned several times. Thus, another pump, the main pump, had been used by Lafayette until it, too, malfunctioned, on the day of the tailings incident. An empty bottle of mineral water was reportedly found sucked by the main pump and believed to be the cause of its malfunction. There was no more back up pump when the two pumps failed. So when the main pump stopped working, the events pond overflowed. Lafayette had no emergency mechanism to stop or mitigate this kind of incident. The DENR-approved Lafayette engineering design was operated without the emergency mechanism.

The sample analysis reported by EMB V indicates only cyanide levels because it has no equipment capable of analyzing toxic heavy metals. While it is tasked to monitor the Lafayette operations for safety purposes, it does not have the capability of monitoring the toxic heavy metals that are always present in mine tailings and that pose long-term adverse impact to human health and environment.

It was wrong of DENR to have approved Lafayette’s resumption of operations six days after the first tailings incident. Most of the recommended measures were unaccomplished despite Lafayette’s commitment to undertake them. When Lafayette resumed operations on 17 October 2005, only the pump had been repaired, the events ponds reduced to 30% and sandbags installed at Alma and Pagcolbon Creeks.

It was also very negligent of the MGB officials who were coincidentally in the area on the day of the tailings incident and who conducted an on-the-spot investigation when they failed to impose immediate remediation measures on the mining company. It was not until two days after, or on Oct. 13, 2005, that MGB Region V dispatched an investigation team to check the veracity of the initial report and to assess the extent of the damage wrought by the incident. 

The second tailings incident was not an unforeseen event. The heavy rainfall on 31 October 2005 was not one in 25 years. In a 10-year rain fall monitor by PAGASA, 125 mm more or less rain fall, is common in the area. It is a usual occurrence in the area as also confirmed by residents. INECAR in its study warned about this six years ago.

The freeboard capacity of the dam was not enough to contain even the common rain fall volume considering that the DENR-approved design requires 190 meters (Environmental Protection and Enhancement Program or EPEP as approved on 26 April 2002). Lafayette, however, had only built 127.9 meters at the time the second tailings incident occurred. Lafayette was already operating, regrettably with DENR consent, despite the fact that the freeboard capacity requirement had not yet been complied with.

After the second tailings incident, Lafayette proposed in its rehabilitation plan to increase the dam height and freeboard capacity from 127.9 meters to 135 meters. The proposal was approved by DENR, again, despite the fact that the proposed increase was still 55 meters short of the original design requirement (as per EPEP).

DENR has been noticeably consistent in allowing Lafayette to violate especially the environmental protection requirements of its approved EPEP.

Not only rain water run-off was discharged contrary to Lafayette reports. A combination of water and effluents was discharged at about 3 pm of October 31, 2005.

The deadly cyanide content of the waters and effluents discharged from the dam and ponds indicate failure of the detoxification system of RRPI. This detoxification system is supposed to detoxify the water held at the Lower Tailings Storage Facility from a free cyanide level of 5 parts per million to below 0.2 parts per million DENR standard for effluent discharge.

Lafayette engineers claim that it was impossible for the tailings to be mixed with the run-off. It was not impossible. The undisputed heavy rainfall could have ordinarily stirred and mixed the rainwater and tailings.

The discharged tailings and effluents do not only carry cyanide but other toxic heavy metals as shown in subsequent studies made. An independent environmental investigative mission organized by the non-governmental organization Center for Environmental Concerns-Philippines reveals that aside from cyanide, toxic heavy metals were found in the sediments of the contaminated creeks. Other studies: INECAR, the UP-PGH and DOH, and even the NSRI report point to the presence of toxic heavy metals in the rivers and creeks surrounding the mine and mine processing site. 

EMB V reported only the presence of cyanide because it has no capability to analyze other toxic heavy metals. The results of several environmental studies following the tailings incidents thus disproved Lafayette’s claim that it only discharged rain water run off.

Lafayette commenced its operations, with DENR consent again, while it was yet to complete the construction of its tailings pond according to the required freeboard capacity.

Lafayette resumed its operations on 17 October 2005 despite the measures to prevent another October 11 incident (as ordered by DENR and recommended by MMT) not having been completely complied with. It has been negligent from the start for not observing the required safety and emergency procedures and infrastructures. It has been continuously negligent when it resumed operations without again adequately and effectively complying with the DENR-imposed measures. Thus, the continuing negligence of Lafayette caused another engineering failure aggravated by the act of unauthorized discharging of effluents on 31 October 2005.

Considering that the engineering measures after the first tailings incident had not yet been adequately complied with by Lafayette, it was negligent for the EMB-DENR to have not anticipated any danger or similar disaster as that of the first incident. It did not give any precaution or warning, and did not order any disaster prevention action given the heavy rain fall on 31 October 2005.

On the Effects of the Tailings Incidents and Long-term Impact of Mining Operations:

During the first and second tailings incidents, fishes and other marine organisms were undoubtedly affected. That fact was not disputed even by the mining company. What was unclear was the extent of the effects of the tailings incidents on the surrounding seas and fishing industry in the island and the adjacent province of Sorsogon.

In the first tailings incident, Lafayette reported that only about one to two kilograms (kg) of thumb-sized fishes and small marine creatures were found dead near the mouth of Alma and Pagcolbon creeks. In the second incident, it reported that approximately 15-17 kg of fishes and marine creatures were affected in Barangay Binosawan. 

The mining company obviously tried to downplay the fish kill incidents.

Some Rapu-Rapu residents gave testimonies to the Commission that they were able to recover more dead fishes immediately after the tailings incidents, particularly the second. Two sacks of dead fishes were allegedly buried in Brgy. Binosawan on November 1, 2005. Also, fish kills were monitored in September or about a month before the first tailings incident by the multi-partite monitoring team.

Fish kills also occurred on several occasions in November 2005 and affected the coastal waters of Sorsogon and practically the whole of the Albay gulf.

After the fish-kill incidents was the fish-scare. Fish buyers stopped buying fishes caught at the Albay gulf near the rich fishing grounds between the island of Rapu-Rapu and the coastal areas of Sorsogon. As much as 80% of the fish trade in Legazpi City was affected. 

In Sorsogon, the fish scare caused “unwarranted and untold sufferings” to fisher folk families, fish traders and the fish consuming public, in the words of Sorsogon Governor Raul Lee. 

After its study, the University of the Philippines-Natural Sciences Research Institute (UP-NSRI) reported that Sorsogon’s as well as Albay’s waters, fish and underwater sediments are safe, although toxic heavy metals were noted in rivers/creeks coming from the mine site. The NSRI findings have been repeatedly referred to by LPI in declaring that the slurry materials that overflowed in the first tailing incident and the effluents it deliberately discharged in “controlled manner” during the second tailings incident were treated or detoxified waters free from toxic heavy metals and chemicals. The NSRI team that conducted the tests, however, had admitted in several occasions that its findings were not conclusive and need further studies.

The Commission believes NSRI’s own skepticism on its findings and disregards Lafayette’s reliance on it and in its self-serving declaration of having performed adequate detoxification of the tailings that overflowed in the first tailings incident and discharged in the second tailings incident.

Besides, the NSRI tests were conducted in March 2006 or four months after the tailings incidents. Factors such as dilution effects of heavy metals, dispersion of sediments, and oxidation of cyanide, over time, had to have altered the environment compared to that immediately after the tailings incidents. 

The NSRI study therefore brought forth more questions than answers. Some things are certain though: There was a fish kill and a fish scare following the tailings incidents. And the UP-NSRI study does not clear LPI from any wrong doing it may have caused for the fish kills and fish scare victimizing the people of Albay and Sorsogon provinces.

While the findings made by different groups will always need further studies to establish the causal connection between the observed immediate effects and the tailings incidents, the Commission makes the finding that there is a high probability of connection and that the incidents subsequently led to certain negative consequences to health, environmental and economic problems to the people of Rapu-Rapu and nearby coastal municipalities of Albay and Sorsogon. 

The groups and individuals which looked into the immediate effects of the tailings incidents are: 1) DENR MGB and EMB Reg. V; 2) BFAR Reg. V; 3) UP-Natural Sciences Research Institute (UP-NSRI); 4) Department of Health and UP Pharmacology and Toxicology Department, UP National Poison Control and Management Department, and UP Dermatology Department; 5) the non-government Center for Environmental Concerns-Philippines in consultation with the UP Engineering Center; 6) Dr. Emelina Regis of INECAR/Ateneo de Naga; and 7) Dr. Teresita Perez of Ateneo de Manila.

Though taken at different periods within five months following the tailings incidents and the samples analyzed were variedly sourced, these different studies yield telling common results, which are: significant levels of toxic heavy metals are present in the soil, water, and sediments samples and in the urine and blood of some of the patients coming from the communities near the mine site.

As to the high levels of mercury found in the dead pygmy whale and dolphin separately found in Rapu-Rapu, newly-elected Corporate President Carlos Dominguez of Lafayette, categorically denied that Lafayette is using mercury in its operations and thus Lafayette could not be the source of the toxic mercury in the two mammals.

But Lafayette did not analyze mercury and other toxic heavy metals in the ore that it mines because, as justified by Mr. Dominguez, the law does not require it. This omission by Lafayette, though not legally required in a certain sense, is nonetheless against Lafayette’s moral obligation to the people and environment of Rapu-Rapu. It is a mining practice and a geo-ethical duty that ore classification be conducted by responsible miners to determine the target minerals content and at the same time determine the accompanying toxic heavy metal in the ore that shall be addressed by appropriate environmental protection and management plan.

On the issue of acid mine drainage (AMD), on the other hand, lies most of the worries of groups opposing mining in the island. For the Commission, the questions that must be answered are: Is Lafayette able to control AMD? Or is the mining company in fact aggravating AMD and all its harsh effects?

The subaquaeous deposition which LPI has adopted among other supplemental actions to prevent AMD is not used in hilly terrains, although it has been proven successful in large mines in flat terrain according to a number of scientific studies.

In a hilly terrain, gradients and flow velocities are too great to achieve stagnant, anoxic conditions. In this situation, subaquaeous deposition may be counterproductive and actually enhance the production and leaching of acid products.

Rapu-Rapu is a hilly terrain with steep slope:

In other words, Lafayette, in its EPEP, designed strategies without yet thoroughly understanding the nature and potentials of AMD in its mine site, in particular, and in the Rapu-Rapu environment, in general.

Far more important, AMD mitigation can be ascertained based not solely on best practices in other countries but based on the particular geo-physical and overall ecological characteristics of the Philippines as an archipelago, with half of its lands sloping at 18 degrees or more, and with vast biological resources and endemicity to nurture and protect. Even as no mining technology has, as yet, sufficiently addressed or come up with solutions to AMD that should not be an excuse to be less than stringent in preventing AMD.

This strong signal must now be served to investors as well as the people who are the real stakeholders in mining projects - that the State is most serious in implementing responsible mining. Compliance with anything less should be considered irresponsible mining by Philippine standards. 

On Lafayette and DENR accountabilities:

Lafayette is guilty of irresponsibility for starting operations prior to the completion of environmental protection infrastructures. The tailings pond, polishing pond and other structures were not yet finished when Lafayette decided to commence operations, possibly due to the high price of metals at that time.

Because the dam structures which were designed to accommodate heavy rainfall events were unfinished, spillage of tailings decant occurred in the second spill incident. The storm drainage infrastructures at the tailings ponds were quite inadequate or virtually non-existent.

Eleven of the 29 conditionalities and sub-conditionalities in the Environmental Compliance Certificate (ECC) were found violated by the LPI Group. 

The Commission finds the DENR, its bureaus (i.e., MGB and EMB), its regional offices, including its monitoring team, to be so dysfunctional as to be unable to prevent the occurrence of the October incidents. They simply did not have the capability of monitoring mining operations in Rapu-Rapu. Worse, though, is that if they had the capability then they utterly lacked will.

State monitoring of Lafayette environmental performance was not to best practice standards. It lacked the rigorousness and strictness to properly police an environmentally critical operation such as mining as well as the flexibility to adapt to changing environmental conditions.

Other findings

The Commission finds Lafayette’s corporate structure, its special economic zone, the several tax incentives that it enjoys, its production reports, export sales and taxes paid for these produced and exported items, as well as the company’s social acceptability to be questionable and tainted with irregularities.

On the corporate set-up

There are two companies operating in Rapu-Rapu island with mining-related permits—RRMI and RRPI. The former is the MPSA holder while RRPI holds the mineral processing permit. RRMI sells its ores to RRPI for processing which exports the metals to foreign buyers. RRPI and RRMI share a lot in common in terms of stockholders and directors. To this, the Commission is well-aware that questions have been raised whether this set-up violates the Constitution mandate but this is beyond our reach and we opt to leave this to the proper agencies to determine. What is more relevant is to determine its implications on the two incidents and the corresponding fault and liability. Suffice to state, for legal purposes, RRMI and RRPI were created as two separate entities and it would be error to treat them as one for regulatory purposes but two whenever convenient.

In this context, there were actually two environmentally critical projects (ECPs) operating in Rapu-Rapu. The first was for mineral extraction, the other for mineral processing. However, verification of records reveal that RRPI does not have an ECC and effectively operating without one. Only RRMI holds an ECC as transferee of LPI, the original grantee. The Commission finds that this “confusion” was the direct and necessary result of the intentional and deliberate decision by the Lafayette group to set-up their companies as such and should be held accountable for all its legal consequences. 

On the PEZA issue

On May 1, 2004, the Office of the President signed into law Proclamation 625 declaring the LPI mining area In Rapu-Rapu as Special Economic Zone Pursuant to Republic Act No. 7916 as Amended by Republic Act No. 8748.

It maybe said that LPI's Country Manager Mr. Roderick Watt at that time haggled much to clinch the proclamation and its subsequent certification from the Philippine Economic Zone Authority (PEZA). In a letter to President Arroyo, Watt threatened that the $45 million in capital investments from Lafayette Ltd of Australia as well as $10 million in investments from LG Group of Korea may be put on indefinite hold if the Rapu-Rapu ecozone status did not materialize. Watt said that the investments he quoted were predicated on the grant of Lafayette's PEZA application.

Watt complained to the President that the only requirement hindering Lafayette's PEZA application was the signature of Rapu-Rapu Mayor Dick Galicia on a certificate of concurrence required by PEZA rules. Watt inadvertently stated in his letter that the President could act on the Lafayette PEZA application even without the Mayor's concurrence.

Two months after Watt's letter, Lafayette's much sought after ecozone status was granted by the Office of the President.

But that is not the major blot on Lafayette's corporate character. Far more damaging is Lafayette's use of a questioned resolution by the Rapu-Rapu Sangguniang Bayan endorsing the Rapu-Rapu ecozone that has since been described as fictitious by members of the Sangguniang Bayan (SB), purportedly the source of the controversial resolution.

What is worse: in an official complaint to the PEZA, SB Secretary Allan Asuncion charged that his signature was forged in a supposed official minutes of the SB November 19, 2003 regular session which he also described as fictitious. During that SB session, the controversial SB resolution favoring the grant of ecozone to Rapu-Rapu was supposedly read and passed by the municipal council of Rapu-Rapu.

Following the controversy, the SB passed resolutions urging various government personalities, including the President, to revoke the ecozone status given to the Rapu-Rapu project of Lafayette.

While the Commission is not in a position to rule on the controversy covering the grant of an ecozone status to the Rapu-Rapu Polymetallic project, the Commission nevertheless makes the following findings:

1. There are apparent irregularities in Lafayette's application to the PEZA and the grant of the Ecozone status to a portion of the Rapu-Rapu Polymetallic Project;
2. The Rapu-Rapu Sangguniang Bayan has made strong charges directed to the reputation and corporate integrity of Lafayette that should be taken seriously, investigated and be the subject of judicial actions, if need be; 
3. There is a need to assess the benefits as against the costs or losses the government may have incurred in the contract and special privileges accorded to Lafayette Philippines Inc.
4. Lafayette Philippines Inc. enjoys a very wide leeway in the conduct of its minerals extraction and business operations in Rapu-Rapu that should be made more transparent, accountable and rigorous in terms of discouraging and checking against possible abuses. 

On the issue of Underreporting of Production and Possible Tax Cheating

LPI-RRMI/RRPI or the Lafayette Group underreported the amount of ore and processed gold/silver produced. RRMI officially reported to MGB V that a total of 67,693 metric tons of gold ore had been mined in 2005. Based on "extracted" evidence from Mr. Villanueva, Geology Manager of RRMI during a Commission hearing at Lafayette, the amount of mined gold ore is 136,180 metric tons, with grade of gold given as 2.33 g. per ton. The Annual EPEP for 2006, submitted by RRPI to the MGB V also gives a slightly higher amount of mined gold ore at 137,349 metric tons. Thus, the official report of production of gold ore is only one-half of the actual produced.

The excise tax paid by RRMI for the year 2005 was PhP 2,065,511.54 (BIR tax records). The amount is equivalent to 2% of the value of dore exported by RRPI ($ 2,444,145 converted into PhP).

This amount is equivalent to estimated value of the 157 gold/silver dore with a weight of 1,258,592.5 g. exported by RRPI. RRPI estimated that the average gold content of the dore shipment at 12% or 151,031 g. of gold, while the silver content of the dore was estimated at an average of 59% or 742,569.6 g. of silver.

However, a total of 132,307 metric tons of this ore had already been milled, according to the sworn statement of Mr. Villanueva. This same amount of processed gold ore is confirmed/given in the document AEPEP for 2006. The estimated total of gold and silver that can be extracted from this actual amount of processed gold ore is 308,275 g. of gold and 1,869,498 g. of silver. This indicates that the excise tax paid by RRMI is probably only half of what it ought to pay the national government.

On the Polymetallic Project’s Social Acceptability

Prior to its approval and during the public consultations and hearings, Lafayette’s ECC was vehemently opposed, raising, among others, the issues of the fragile nature of Rapu-Rapu’s island ecosystem, the potential for acid mine drainage (AMD) and the torrential rain weather pattern in the area. On hindsight, the merit of these contentions have been validated and should be a serious cause for concern for the country on the ability of the EMB and DENR to exercise wise judgment in protecting our environment given how spectacularly they were proven to be wrong at so short a time. 

The Commission particularly notes the haste in the grant of the ECC notwithstanding the seriousness of the objections raised and the fact that prior to its issuance, the environmental agencies were well aware of an ongoing Senate committee investigation on the matter. Worse, notwithstanding the committee recommendation for the DENR not to issue an ECC, it still proceeded to do so.

To be sure, there were other irregularities such as the conduct of the only public hearing right inside the premises of the ECC applicant. The Commission took note of the sheer inaccessibility of the site, the absolute reliance on Lafayette to reach the premises where the hearing was held within the site and the extremely limited options to travel in and out of the site.

In fact, anyone who must have attended this public hearing had to depend entirely on Lafayette for transportation and accommodations. These circumstances do not augur well for a real and meaningful participation and constitutes a failure of the public hearing process.

Another major flaw in the social acceptability process is the non-inclusion of Sorsogon. Sorsogon stakeholders, particularly the marginalized fisher folk of the coastal communities, had every right to be consulted and be heard because they are likely (and has in fact been the case) to face the environmental risks associated with the Rapu-Rapu Project.

NGOs and people's organizations opposed to mining in the island were not included in consultations and were in fact barred from joining hearings and proceedings, like Sagip-Isla and Umalpas-Ka. 

Although the failure to consider Sorsogon and other stakeholders is more than sufficient ground to nullify and revoke the ECC in question, it is worth mentioning the other EIA shortcomings if only to prove its inherent invalidity. One of these is the failure to address cumulative impacts. At this point, it is worth reiterating the definition of environmental impacts as “the probable effects or consequences of proposed projects or undertakings on the physical, biological and socioeconomic environment that can be direct or indirect, cumulative, and positive or negative.”

RECOMMENDATIONS

1. Set up a People’s Health and Environmental Protection fund from the side of the national government to be used for compensation of the health victims and rehabilitation of the impacts of mining operations on the livelihood of those affected by the October tailings spill incidents. Pay the victims directly after an assessment of their complaints/problems.

   Although Commission recognizes that the Lafayette Group is primarily liable for the consequences and damages wrought by the tailings incidents and its mining operations in Rapu-Rapu, our present laws, however, do not impose this liability upon the mining firm adequately and expediently – hence, the recourse to action from the National Government. 

2. Fund and support the epidemiological study proposed by UP-PGH and DOH. Establish the scientific parameters for the health and safety conditions for the safe food intake of fishes and other aquatic food from the Albay gulf.
3. Cancel RRMI/RRPI PEZA registration on the basis of the irregularities found and for the reason that the Rapu-Rapu LGU has been unduly deprived of local taxes.
4. The BIR should investigate LPI, RRMI, and RRPI (the Lafayette Group) for underreporting of ore/processed dore production and violations of tax laws. The DENR should investigate the bureaus and regional units involved for negligence of duties. For purposes of realistic monitoring by the State it is strongly suggested that all gold/silver sales of mining firms be given to the BSP as it does with small-scale mining operations – at least for the first four years of a mining company’s initial operations.
5. Rescind all financial and economic incentives including PEZA and BOI tax incentives to LPI/RRPI/RRMI (the Lafayette Group)
6. Order LPI/RRPI/RRMI (the Lafayette Group) to pay back all back taxes equivalent to those waived because of incentives/privileges for the whole duration of their mining operations.
7. Build the capability of DENR-MGB and EMB both nationally and in the regions to be able to manage and monitor effectively mining firms and mining operations. Also democratize this process of managing and monitoring mining firms and operations by engaging LGUs and people’s organizations and by building their capabilities for effective engagement. 
8. Issue a moratorium on mining in Rapu-Rapu and a suspension of MPSAs in the island pending scientific and experts’ favorable resolution of the issue of ecological conservation and the AMD problem in a fragile small island ecosystem.
9. Cancel the ECC of RRMI and RRPI on the following grounds:
   • violations of 11 out of 29 conditionalities and subconditionalities contained therein;
   • the cumulative effects of the mining operations to human health, environment, and ecology have not been properly addressed;
   • social responsibility and acceptability issues still persist and remain unresolved to this day; and.
   • poor capability of DENR, MRFC and MMT to manage and monitor the mining operations of LPI Group. 

   The current ECC holders shall be allowed to re-apply should they want to continue operations in Rapu-Rapu. However, the scope of the EIS shall be decided not only by the usual review committee but by a bigger panel to include scientists/experts and representatives of people’s organizations and NGOs.

10. Review the Philippine Mining Act, specifically the provisions on the ownership and management of mining firms and operations, to protect the interest of the Filipino people and the Philippine government. Look to the need for creating an independent Mining Authority that will focus on the mining industry alone in terms of complete and timely monitoring especially on the impact of mining operations to people’s health and environment and on the just share that must go to the government and the Filipino people.