MGB absolves Philex ontailings dam spill

By Thet Mesias  

TUBA, Benguet -- —The Mines and Geosciences Bureau has absolved Philex Mining Corp. from fault in connection with the Aug. 1 spill here at Padcal Mine, according to Michael Toledo, PMC senior vice-president for corporate affairs.

 “MGB officially concluded in its report that Philex personnel were not remiss in the maintenance and operation of Padcal Mine’s tailings pond facility,” he said, adding this was confirmed by the MGB’s investigations and reports of monitoring and inspection submitted by PMC to MGB.

Toledo said that PMC was furnished a copy of the report through the Sept. 26 letter of MGB director Leo Jasareno, who asked PMC to respond to the report’s contents and conclusions.

 He said the PMC will comment on the report and will contest the attempt to impose a fine of P1,034,358,971.00 on the company, considering that MGB itself has effectively confirmed that the spill was caused by force majeure in the form of the historically unprecedented heavy rains generated by Typhoon Gener at the Padcal site.

 “But Philex contesting the unfair imposition of the fine will not in any way affect its fundamental commitment to remediate the effects of the spill on the environment and surrounding communities even if caused by an event outside its control,” Mr. Toledo emphasized.

 He said the rainwater reached 331.80 millimeter (mm) on the day of the spill, far exceeding by almost 100 mm the 50-year rainfall record for Padcal of only 234.50 mm for a single day.

 “It is grossly unfair to penalize Philex and impose a huge fine on it when the government agency imposing the fine itself has confirmed that Philex is just a victim of force majeure event or an act of nature over which it had no control,” he said.

 Toledo stressed that one of the most basic principles of fairness and of law is that no party should be held responsible or penalized for events over which it has no control.

 “In fact, this is so basic that even Philex’s MPSA with the government exempts Philex from the performance of its obligations if the cause is force majeure and so, outside Philex’s effective control,” he added, referring to the Mineral Production Sharing Agreement.

 On Wednesday, Mr. Toledo announced that MGB has confirmed that PMC had a system in place for the maintenance and monitoring of its Tailings Pond No. 3 (TP3) and secondary facilities during the accidental discharge of sediment in Padcal on Aug. 1, and that its personnel were diligent in the performance of their duties.

 “The findings came as no surprise because the company’s environmental management system, including the operation and maintenance of TP3, has long been ISO-compliant and -certified,” he said, emphasizing PMC’s ISO-14001 certification for years 2002, 2006, and 2008, and the latest certification issued on May 10, 2011.