“The heavy oil spill, which occurred during the height of super typhoon Yolanda, is not a fortuitous event nor an act of God, but a result of sheer criminal negligence and gross incompetence of the Office of the President, other key departments of the executive branch of the government and the state-owned Napocor which operates Power Barge No. 103, the source of oil spill.”
By GERRY ALBERT CORPUZ
Manila- A national federation representing fisherfolk survivors of super typhoon Yolanda filed criminal and other civil charges against President Benigno Simeon Aquino III and scores of other government officials for “avant-garde display of incompetence” in dealing with the heavy oil spill that happened during the height of the storm last month.
Leaders of the fisherfolk alliance Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) led by Pamalakaya national vice chairperson Pedro Gonzales and Pamalakaya vice chairperson for administration Salvador France filed a five-page letter of complaint before the Department of Justice (DoJ) in Manila charging President Aquino and other concerned government officials of criminal negligence and gross incompetence in dealing with the environmental disaster in Northern Iloilo.
Aside from the President, the other officials named in the charge sheet include Energy Secretary Jericho Petilla, Environment Secretary Ramon Paje, Napocor President and Chief Operating Officer (CEO) Ma. Gladys Sta. Rita, Napocor Vice Presidents Lorna Dy and Katambayan Celino, Senior Department Manager Manuel Luis Plofino, Napocor managers Romulado Beltran Sr. and Emmanuel Umali.
“Napocor officials and operators of Power Barge No. 103 were informed that super typhoon Yolanda was going to hit Estancia and other fishing towns in Northern Iloilo four days before the perfect storm. They have sufficient time to safe keep the barge filled with 1.4 million liters of bunker fuel from Yolanda’s wrath, but Napocor people never did their assignment,” said France in a hurriedly called press conference inside the DoJ compound in Manila.
In their letter of complaint, the Pamalakaya officials told Justice Secretary Leila de Lima that the disastrous response of the government to the Estancia oil spill constitutes grave violation of the 1987 Constitution, which, France and Gonzales argued, merits the filing of the criminal and administrative cases against concerned state officials.
“The dismal response of the government to the Estancia oil spill violated the right to a balanced and healthful ecology,” they said.
Section 16, Article II of the 1987 Constitution explicitly provides that “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”
“In particular and for legal reference, we raise the gross violations committed by the concerned government agencies that include Napocor and operators of Power Barge No. 103 in full reference to Philippine Water Act of 2004 or Republic Act No. 9275. The December 6 deadline imposed by Napocor for clean operations failed due to the knee-jerk attitude and inept response displayed by government agencies in dealing with the national calamity and humanitarian disaster,” said Pamalakaya. The group learned that it was only on Dec. 14 that the private contractor commissioned by Napocor completed the removal of the remaining 600,000 liters from Power Barge No. 103.
Pamalakaya asserted that the failure of Napocor to undertake cleanup operations within the prescribed reasonable time or in accordance with the self-imposed deadline set by the state-run power firm deserves criminal indictment and outright punishment of Napocor officials and other persons directly and indirectly involved in this grandmother of all environmental negligence.
Not an act of God
Pamalakaya said the heavy oil spill, which occurred during the height of super typhoon Yolanda, is not a fortuitous event nor an act of God, but a result of sheer criminal negligence and gross incompetence of the Office of the President, other key departments of the executive branch of the government and the state-owned Napocor which operates Power Barge No. 103, the source of oil spill.
“Please allow us to set the record straight: Napocor was well informed four days before Yolanda hit the country on November 8, and there was enough time for Napocor to transfer or remove Power Barge No. 103 from the typhoon path to avoid possible oil spill incident— and this was gravely overlooked by Napocor.”
To substantiate their complaint Pamalakaya cited the Joint Assessment Report dated November 30 on the impact of oil spill to coastal fishing people in Estancia.
The joint assessment was carried out by the United Nations Environmental Programme (UNEP), the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the World Health Organization (WHO).
One of the key findings of the joint assessment team revealed that Power Barge No. 103 is a relatively old design vessel, single skinned and stationed on a permanent tidal mooring that allows the vessel to rise and fall through the full tide cycle without rotation.
The assessment also confirmed the that the generating plant carried 1,400,000 liters of bunker fuel when the storm surge hit Power Barge No, 103 during typhoon. As of November 23, the chief operations manager of the barge disclosed that around 800,000 liters of bunker fuel spilled into the sea, while 600,000 liters remained in the damaged tanks of Power Barge No. 103 of Napocor.
The assessment report also noted the action taken by the Iloilo Provincial Governor to evacuate the most vulnerable population (children, pregnant and breast feeding women, elderly) living in close vicinity to the affected shoreline in Barangay Botongon since 23 November is not an assurance that things would go back to normal.
According to the UNEP led joint assessment, as of 30 November 2013, 647 families (2,763 individuals) are registered at the Western Visayas University. The UN led body stressed the urgent need for a speedy cleanup process to allow the affected population to return to their coastal communities and recover from the twin whammy of Yolanda and the oil spill.
The shoreline of the Barangays Botongon, Estancia, Paon and Tanza has been reported to have been contaminated by bunker oil washed ashore. The oil has been reported to have spread up to 10 kms downstream (south) from Estancia along the coast. As of now, no detailed assessment of the spreading of oil along the coast line south of Estancia seems to have been undertaken.
On 22 November the joint team assessed the bay in Embarcadero, Batad, which showed clear signs of severe free phase oil contamination of the bay and mangroves.
The community close to the bay in Batad mainly lives on fishing in the flood feeding into the bay. According to the local fishermen the flood has been contaminated with oil up to 3 kilometers inland and fishing is no longer possible.
The assessment showed a widespread oil contamination of the mangroves along the coast and riversides. According to the local fisherman the area covered with free phase oil increased during the night of 21 November. The local population estimates the area of affected mangroves at around 10 hectares (100,000 m2). The community has started to partly clean up the sandy beach by raking contaminated sand and debris into heaps.
The report said, “During high tide the oil will spread and infiltrate the root system of the mangroves. Not only will this process destroy the existing mangroves but will also be a source of continuous contamination of the waters in the future. In turn, this will affect the livelihood of the people depending on fishing in these waters. In addition, the presence of free phase oil and wash-up of oil on the shore may pose a health risk to people in the area especially in case of direct contact.
The UNEP report also cited public health hazards in the area surrounding the affected site following the release of oils of all types, three generic components were released: volatile organic compounds (VOCs), aliphatic hydrocarbon compounds, and residual products that can include heavy metals and sulfur compounds.
Crude oils usually contain a certain quantity of sulfur containing hydrocarbons, dissolved hydrogen sulfide gas, and elemental sulfur. It is reasonable to assume that the dissolved hydrogen sulfide had been largely removed from this oil before it was supplied to the generating barge in accordance with standard international practice.
The November 30 report of UNEP, the range of problems associated with contact or exposure to these materials more remotely from the immediate operational area have been well described in other accidents and include distress from the unpleasant smell, eye and respiratory tract irritation (including exacerbation of long standing respiratory disease, especially reversible airways disease e.g. asthma).
This is associated with the volatile organic compounds and hydrogen sulfide (if present). Also upon skin contact inflammatory conditions associated with the remaining aliphatic / long-chain hydrocarbon components can occur. All of these conditions are normally reversible, and are usually reported to subside within 7-10 days of removal of exposure to the hazard (or removal of the population from the vicinity of the hazard). As noted above, certain chemicals contained in the oil are considered potential carcinogens.
Pamalakaya asserted that the imprisonment of the offenders 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) and not more than one hundred thousand pesos (P100,000) for each day of violation for each of the key officials of Napocor is justified, since such failure results to serious injury or loss of life and/or irreversible water contamination of surface, ground, coastal and marine water.
According to RA 9275, violators or offenders 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) for each day during which the omission and/or contamination continues.
The gross violation likewise requires proper government agencies to file criminal charges against the violators. Gross violation, according to RA 9275 shall mean any of the following:
(a) deliberate discharge of toxic pollutants identified pursuant to Republic Act No. 6969 in toxic amounts;
(b) five (5) or more violations within a period of two (2) years; or
(c) blatant disregard of the orders of the PAB, such as the non-payment of fines, breaking of seals or operating despite the existence of an order for closure, discontinuance or cessation of operation.
In which case, offenders shall be punished with a fine of not less than five hundred thousand pesos (P500,000) but not more than three million pesos (P3,000,000) for each day of violation or imprisonment of not less than six (6) years but not more than ten (10) years, or both, at the discretion of the court.
Likewise the clean water act punishes the offender (juridical person, the president, manager and the pollution control officer or the official in charge of the operation) for violations falling under Section 4 of Presidential Decree No. 979 or any regulations prescribed in pursuance thereof, such person shall be liable for a fine of not less than fifty thousand pesos (P50,000) nor more than one million pesos (P1,000,000) or by imprisonment of not less than one (1) year nor more than six (6) years or both, for each offense, without prejudice to the civil liability of the offender.