Apr 062013
 

REPUBLIC OF THE PHILIPPINES

THIRD JUDICIAL REGION

REGIONAL TRIAL COURT

Branch ____, Zambales

 


WILFREDO MESIANO, RAYMUNDO OLANO,

TEOFILO ROBERTO SR., LEONIDA ROBERTO,

ELENA DOMINGO, JOSE AYSON,

JOSE BALINTAY, JEVIR BORRE,

EFREN DIAGO SR., ROMEO DIONISIO,

JULIET DIONISIO, CONNIE DOMDOM,

AMADO LUSONG, JULIETA MALTO

LORENA MAMARIL, TERESITA DE DIOS TUBIGAN

HEIRS OF THE FOLLOWING VICTIMS

JACQUELYN GUEVARRA and ALBERTO DE JESUS;

PARENTS AND/OR LEGAL REPRESENTATIVES

OF THE FOLLOWING MINOR OR INCAPACITATED

VICTIMS— ROMAR DEVILLENA, LAARNI MESIANO,

MICAH MESIANO, TEOFILO ROBERTO JR.,

ROCELLE AGUINALDO, JEOFREY BALINTAY,

JEVITA ROSE BORRE, JESICA BORRE,

JEROME DIONISIO, ALBERT DOMDOM,

NEIL DOMDOM, MARICAR LUSONG,

RAMIL MAMARIL, JAQUELYN TUBIG,

AND MAUEL LUIS ROMERO

                                                PLAINTIFFS,

 

               — versus —                                    Civil Case No. _____________    

                                                                   For: Damages With Prayer

                                                                          For Preliminary Mandatory

       Injunction and Injunction         

THE DEPARTMENT OF DEFENSE OF THE UNITED STATES OF AMERICA; THE OFFICE OF THE SECRETARY OF THE DEPARTMENT OF THE NAVY OF THE UNITED STATES OF AMERICA; THE OFFICE OF THE PRESIDENT OF THE PHILIPPINES THRU THE INCUMBENT EXECUTIVE SECRETARY; THE DEPARTMENT OF NATIONAL DEFENSE (DND) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF FOREIGN AFFAIRS (DFA) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF HEALTH (DOH) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE DEPARTMENT OF SOCIAL WORKS AND WELFARE DEVELOPMENT (DSWD) AS REPRESENTED BY ITS INCUMBENT SECRETARY; THE BASES CONVERSION DEVELOPMENT AUTHORITY (BCDA); AND THE SUBIC BAY METROPOLITAN AUTHORITY (SBMA).

 

                             DEFENDANTS.

x————————————–x

 

 

 

 

C O M P L A I N T

 

 

PLAINTIFFS, by undersigned counsel and unto this Honorable Court, most respectfully allege that:

 

 

PREFATORY STATEMENT

 

          This is the story of a people’s quest for justice against a superpower which once ruled their lives as a colonial sovereign and used their territory to advance the superpower’s military supremacy in Asia and in the world.

 

This is also the tale of their fight for justice against their own government which, by the manner it tolerated the superpower’s abusive deeds in the use of their territory, almost permitted the commission of such abusive acts.

 

          In particular, this is the story of the plaintiffs as human victims of toxic waste contamination in the former Clark Air Base and Subic Naval Base.

 

But in general, this is also the story of the Filipino people, both present and future generations, whose environment, heavily damaged by the  United States of  America  after  almost a  century of occupation and use, is the bigger victim. The damage to the environment in Clark and Subic will ever remain present, even for many long years to come, unless cleaned up, the cost of which has been estimated to reach “superfund” proportions reaching billions of U.S. dollars.

 

          Essentially therefore, this is the Filipino people’s quest for justice for their environment, against the United States, undoubtedly a superpower, who occupied and used Clark and Subic for almost a century, as a colonial sovereign for the first 48 years and as a privileged tenant for the next 46 years.

 

          A privileged tenant because it drafted by itself the terms and conditions of the 1947 Military Bases Agreement (MBA) and merely required the 8-month old Philippine government to sign and accept said agreement in March 1946.

 

          A privileged tenant indeed because, strictly speaking under the 1947 MBA as amended, the US was not even required to pay any rental obligations to the Philippines for its occupation and use of Clark and Subic.

 

          But more than all this, it was privileged because its landlord, the Philippine government, by gross negligence or sheer cowardice, did not assert its right and duty under the Constitution and pertinent laws to protect and preserve its environment and people from harm and degradation.

 

          The people’s quest for justice began when, shortly after the US Air Force withdrew from Clark in November 1991, around 20,000 Filipino families rendered homeless by Mt. Pinatubo eruption were relocated by the Philippine government in Cabcom (Clark Air Base Command), a portion inside the former air base designated by the Philippine government as temporary evacuation center for all Mt. Pinatubo victims.

 

          While these Mt. Pinatubo victims were in Cabcom, they were given and permitted by the Philippine government to install more than 200 pump wells. From these pump wells, the victims drew their daily water needs for drinking, cooking, milkmixing, bathing, laundry and other similar needs.

 

          Initially, they complained of the odd odor, color and taste of the water drawn. Soon members of their families complained of severe stomach pains, irregular bowel movements, headaches, dizziness and other minor health complaints.

 

          Later however, some of them acquired various skin disorders, while others had grown large cysts or masses in various body parts. Pregnant women suffered spontaneous abortions, still births, fetal deaths and birth defects or congenital deformities. Deaths due to leukemia, heart ailment, kidney disorder, lung problem, among others, began to surface in alarming numbers.

 

          These deaths and illnesses brought to the fore the issue of toxic waste contamination not only in Clark Air Base but also in Subic Naval Base. As these deaths and illnesses got reported in national and international news, several studies and investigations were conducted in the areas by different groups.

 

          All these studies and investigations were uniform in their discovery – that there are toxic chemicals and hazardous wastes found in both Clark and Subic. Some of these studies even identified certain specific areas as positively contaminated. Others vary only in their findings on the levels or degrees of toxins present.

 

          Hence, whether or not there are toxins or contaminants in Clark and Subic is no longer an issue. The question only is the extent of the contamination, or put another way, the extent of the environmental damage.

 

But the much bigger question to ask is -– Did the U.S. Navy and Air Force have knowledge of the toxic waste contamination?

 

          An overwhelming set of evidence, as well as an overwhelming dose of common sense, affirms that they do. A group of former employees at Clark and Subic, who are living witnesses to the actual handling and disposition of toxic chemicals and wastes in the former military bases, are willing to testify on this. Also, as contained in several available documents, a number of U.S. Air Force and Navy officials had admitted that practically all the lakes and rivers in the former bases, including the nearby bay areas, became their dumping sites for the wastes and chemicals they used in their operations.

 

          It appears that for all those years that they were in the country, the US Navy and Air Force showed neither care nor concern on those portions of the Philippine environment they occupied and used. For according to them, under the 1947 Military Bases Agreement as amended, they have no legal obligation anyway to restore those portions of the Philippine environment to their condition prior to their occupation.

 

          With that belief, aggravated by Philippine government’s gross negligence and failure to assert its right and duty to protect and preserve its environment, the US Navy and Air Force showed no serious effort to comply with the pertinent U.S. or Philippine environmental laws. They claimed that U.S. environmental laws are not applicable to overseas facilities like Clark and Subic. As to Philippine environmental laws, they maintained that the country had no environmental laws they could follow at that time. Which is the same to say that Philippine had no environmental laws in place until November 1992 when they — U.S. Navy — pulled out from Subic.

 

          Thus, unlike in many countries like Germany and Italy, they did not set up a comprehensive program on toxic waste treatment and management in Clark and Subic. In particular, they did not install toxic waste treatment facilities and equipment that would have contained, lessened or prevented the toxic waste contamination in the former bases, but which would have required them tremendous amounts of money.

 

          So for almost a hundred years, according to former base employees, the Americans merely dumped and disposed their daily load of solid toxic wastes and chemicals in a manner they saw convenient and inexpensive – in open landfills and shallow ground pits.

 

          For almost a hundred years, they merely dumped and disposed their untreated liquid toxic wastes and chemicals in a manner they deemed convenient and inexpensive – i.e., directly into the lakes and rivers inside and nearby the bases, as well as into the bay areas adjacent to or near these bases.

 

          For almost a century therefore, Clark and Subic, each of which is almost the size of the island of Singapore, became open dump sites for the toxic wastes and hazardous chemicals generated and used by U.S. Navy and Air Force not only in the Philippines but also in its wars in Vietnam and Korea.

 

          And when they left the country in November 1992, after the Philippine Senate rejected the Treaty which would have extended the bases for ten more years, the U.S. Navy and Air Force merely dumped and abandoned their toxic wastes and hazardous chemicals in Clark and Subic in a manner that was manifestly reckless and with almost wanton disregard of Philippine environment.

 

          Initially, when the numerous deaths and illnesses suffered by Cabcom residents came out in the national and international news reports, both the U.S. and Philippine governments chose to be silent on the issue.

 

          Later on however, on several occasions, the US government, short of admitting responsibility and liability for the toxic waste contamination, made pronouncements that it will assist in the clean up of its former military bases. To date, however, it has not done anything concrete towards that direction.

 

          The Philippine government, on the other hand, has already admitted in public last 3 July 2000, thru the Philippine Task Force for Toxic and Hazardous Wastes being chaired by Foreign Affairs Secretary Domingo Siazon, that certain sites in Clark and Subic are positively contaminated by toxic wastes and hazardous chemicals.

 

          Notwithstanding all this however, when the victims demanded for the clean up of the former bases and the compensation for their deaths and illnesses, both the US and Philippine governments refused and denied liability therefor.

 

          The U.S. government took the position that, under the 1947 MBA as amended, it has no legal obligation to restore those portions of the Philippine environment covered by Clark and Subic into their conditions prior to the occupation of the U.S. Air Force and Navy. It also maintained that, under the same 1947 MBA, the Philippine government has waived its claim for compensation or damages in exchange for the existing structures the U.S. Air Force and Navy left in Clark and Subic.

 

          On its part, the Philippine government has placed itself in an awkward position in defense of the US government, claiming that Philippine courts have no jurisdiction over the US government.

 

          In the meantime, not one of these two governments has shown any care or concern for the plight and condition of the human victims. Neither has extended any medical assistance or other forms of assistance to them. Neither of them has made any concrete moves to clean up the former military bases.

 

          Hence, the Filipino people’s quest for justice remains.

 

THE PARTIES

 

          1.       Plaintiff VIRGINIA GUEVARRA is the mother of JACKLYN GUEVARRA who died while suffering from Cerebral Palsy. She is a Filipino, of legal age with residence at Blk. 24 Verbana St., Gordon Heights, Olongapo City.

 

          2.       Plaintiff ROMAR DEVILLENA is a minor suffering from leukemia. She is represented in this suit by his father RONALD DEVILLENA, Filipino, of legal age with residence at Blk. 24 Gordon Heights, Olongapo City.  

 

          3.       Plaintiff WILFREDO MESIANO is of legal age, Filipino, with residence at 62 Gil St., New Banicain, Olongapo City.

 

          4.       Plaintiffs MICAH MESIANO, 2 years old suffering from cerebral palsy, and LAARNI MESIANO, 12 years old suffering from lung ailment, are the daughters of WILFREDO MESIANO, of legal age, Filipino, with residence at 62 Gil St., New Banicain, Olongapo City.

 

          5.       Plaintiff RAYMUNDO OLANO is of legal age, Filipino, with residence at 25 Gordon St., New Banicain, Olongapo City.   

 

          6.       Plaintiff TEOFILO ROBERTO SR. is of legal age, Filipino, with residence at 34 Gordon St., New Banicain, Olongapo City.

 

          7.       Plaintiff TEOFILO ROBERTO JR. is of legal age but suffering from down syndrome. He is represented in this suit by his father TEOFILO ROBERTO SR., of legal age, Filipino, with residence at 34 Gordon St., New Banicain, Olongapo City.

 

          8.       Plaintiff LEONIDA ROBERTO is of legal age, Filipino, with residence at 34 Gordon St., New Banicain, Olongapo City.

         

          9.       Plaintiff ELENA DOMINGO is of legal age, Filipino, with residence at 1 18th St., West Bajac-bajac, Olongapo City.

 

          10.     Plaintiff JASPER DOMINGO is suffering from cerebral palsy. He is represented in this suit by his mother ELENA DOMINGO, of legal age, Filipino, with residence at 34 Gordon St., New Banicain, Olongapo City.

 

          11.     Plaintiff ROCELLE AGUINALDO is a minor suffering from cerebral palsy. She is represented in this suit by her father ROMULO AGUINALDO, of legal age, Filipino, with residence at 1505 Julo Tabacuhan, Purok 6-C, Sta. Rita, Olongapo City.

 

          12.     Plaintiff JOSE AYSON is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          13.     Plaintiff AURORA DE JESUS is the spouse of deceased ALBERTO DE JESUS. Plaintiff AURORA DE JESUS is of legal age, Filipino, with residence at Purok 7, Malikawat, New Cabalan, Olongapo City.

 

          14.     Plaintiff  JOSE BALINTAY is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          15.     Plaintiff JOEFREY BALINTAY is a minor. He is represented in this suit by his mother NORMA BALINTAY is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          16.     Plaintiff JEVIR BORRE is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          17.     Plaintiffs JEVITA ROSE BORRE and JESSICA BORRE are minors. They are represented in this suit by their father JEVIR BORRE is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          18.     Plaintiff EFREN DIAGO SR. is of legal age, Filipino, with residence at Purok 2, Aguinaldo St., New Cabalan, Olongapo City.

 

          19.     Plaintiff ROMEO DIONISIO is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          20.     Plaintiff JULIET DIONISIO is of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          21.     Plaintiff JEROME DIONISION is a minor suffering from hydrocephalus. He is represented in this suit by his mother JULIET DIONISIO, of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          22.     Plaintiff CONNIE DOMDOM is of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

 

          23.     Plaintiff ALBERT DOMDOM is a minor suffering from skin disorder. He is represented in this suit by his mother CONNIE DOMDOM, of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

 

          24.     Plaintiff NEIL DOMDOM is of legal age but suffering mental retardation. He is represented in this suit by his mother CONNIE DOMDOM, of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

 

          25.     Plaintiff AMADO LUSONG is of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

 

          26.     Plaintiff MARICAR LUSONG is a minor suffering from congenital heart disease. She is represented in this suit by her mother CAROLINA LUSONG, of legal age, Filipino, with residence at Purok 2, New Cabalan, Olongapo City.

 

          27.     Plaintiff JULIETA MALTO is of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

 

          28.     Plaintiff LORENA MAMARIL is of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

 

          29.     Plaintiff RAMIL MAMARIL is a minor suffering from skin disease. He is represented in this suit by his mother LORENA MAMARIL, of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

 

30.     Plaintiff JAQUELYN TUBIG is a minor suffering from leukemia. She is represented in this suit by her father POLICARPIO TUBIG, of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

 

          31.     Plaintiff  TERESITA DE DIOS TUBIGAN is of legal age, Filipino, with residence at Purok 3, New Cabalan, Olongapo City.

 

          32.     Plaintiff MANUEL LUIS ROMERO is a minor suffering from epilepsy. He is represented in this suit by his grandmother ANITA ARIZO, of legal age, Filipino, with residence at Purok 1, New Cabalan, Olongapo City.

 

          33.     All the above plaintiffs may be served with notices and other processes of this Honorable Court at the address of the undersigned counsel as indicated hereunder.

 

          34.     Defendant Department of Defense of the United States of America is an agency of the Government of United States of America. It may be served a copy of this complaint, summons, notices and other court processes through the U.S. Embassy in the country located at Roxas Blvd., Manila, Philippines, represented in this suit by its incumbent U.S. Ambassador to the Philippines.

 

          35.     Defendant Department of the Navy of the United States of America is an agency of the Government of the United States of America. It may be served a copy of this complaint, summons, notices and other court processes through the U.S. Embassy in the country located at Roxas Blvd., Manila, Philippines, represented in this suit by its incumbent U.S. Ambassador to the Philippines.

 

          36.     Defendant Office of the President of the Philippines, through the Office of the Executive Secretary in Malacanang, Manila, is an agency of the Republic of the Philippines. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          37.     Defendant Department of the Health (“DOH” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          38.     Defendant Department of Environment and Natural Resources (“DENR” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          39.     Defendant Department of Social Welfare and Development (“DSWD” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          40.     Defendant Department of Foreign Affairs (“DFA” for brevity) is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          41.     Defendant National Disaster Coordinating Council (NDCC) is an agency of the Government of the Republic of the Philippines under and attached to the Department of National Defense (“DND” for brevity). It is represented in this suit by its incumbent DND Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          42.     Defendant Department of National Defense is an agency of the Government of the Republic of the Philippines. It is represented in this suit by its incumbent Secretary. It may be served a copy of this complaint, summons, notices and other court processes through the Office of the Solicitor General.

 

          43.     Defendant Subic Bay Metropolitan Authority (SBMA) is an agency of the Republic of the Philippines created by an act of Congress. It may be served a copy of this complaint, summons, notices and other court processes in its principal office at SBMA Compound, Olongapo City.

 

          44.     Defendant Bases Conversion Development Authority (BCDA) is an agency of the Republic of the Philippines created by an act of Congress. It may be served a copy of this complaint, summons, notices and other court processes in its principal office in Old Golf Club Bldg., Villamor Air Base, Pasay City.

 

 

JURISDICTIONAL FACTS

 

 

 

A.      SUABILITY OF THE PHILIPPINE GOVERNMENT

 

 

 

45.     The Plaintiffs enjoy the fundamental right to a balanced and healthful ecology guaranteed under Section 16, Article II of the Constitution which states:

 

“SEC. 16. 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.”

 

 

46.     In turn, the aforementioned right is inextricably linked with the right of the people to health. Section 15, Article II of the Constitution reads:

 

 

“SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.”

 

 

47.     In the case of Oposa versus Factoran (G.R. No. 101083, July 30, 1993), the Supreme Court expressly ruled that the rights of the Filipino people to a balanced and healthful ecology as well as to health are so basic that these “need not be written in the Constitution for they are assumed to exist from the inception of humankind.”

 

 48.    Apart from the inherent duties enshrined in the Constitution, the defendant-Agencies of the Philippine Government have the following responsibilities to the environment and the Filipino people under various domestic laws, to wit:

 

48.1   Under paragraph (c), Section 1 of Presidential Decree No. 1151 (The Philippine Environmental Policy), it is expressly stated that it is a declared policy of the State to:

 

 

          “(a)    Create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other;

 

          (b)      Fulfill the social, economic and other requirements of present and future generations of Filipinos; and

 

          (c)      Insure the attainment of an environment quality that is conducive to a life of dignity and well-being.”

 

 

          48.1.1         In the same law, the Government “recognizes the right of the people to a healthy environment (Section 3, PD No. 1151).”

 

          48.1.2         Pursuant to the foregoing, Section 2 of PD No.1151 expressly states that:

 

 

“SEC. 2. Goal—In pursuing this policy, it shall be the responsibility of the Government, in cooperation with concerned private organizations and entities, to use all practicable means, consistent with other essential considerations of national policy, in promoting the general welfare to the end that the Nation may…(b) assure the people of a safe, decent, healthful, productive and aesthetic environment…” 

 

 

 

48.2   Under the Philippine Environment Code (Presidential Decree No. 1152), the Government, “through the appropriate agencies”, assumed the following responsibilities:

 

 

          “CHAPTER II.– Regulation and Enforcement

 

 

SEC. 8.  Air Quality and Noise Standards.—The National Pollution Control Commission in coordination with appropriate government agencies shall be responsible for the enforcement of ambient air quality emission and noise standards, including the monitoring and surveillance of air pollutants, licensing and permitting of air pollution control facilities, and the promulgation of appropriate rules and regulations….

 

 

x        x        x

 

 

SEC. 11. Radioactive Emissions.—The release and emission of radioactivity into the environment incident to the  establishment or possession of nuclear energy facilities and radioactive materials, handling, transport, production, storage, use and disposal of radioactive materials shall be regulated by the Philippine Atomic Energy Commission in coordination with other appropriate government agencies.

 

 

x        x        x

 

 

CHAPTER II.—Protection and Improvement of Water Quality

 

 

          SEC. 19.  Enforcement and Coordination.—The production, utilization, storage and distribution of  hazardous, toxic and other substances such as radioactive materials, heavy metals, pesticides, fertilizers, and oils, and the disposal, discharge and dumping of untreated wastewater, mine tailings and other substances that may pollute any body of water of the Philippines resulting from normal operations of industries, water-borne sources, and other human activities as well as those resulting from accidental spills and discharges shall be regulated by appropriate government agencies pursuant to their respective charters and enabling legislation. In the performance of the above functions, the government agencies concerned shall coordinate with the National Environmental Protection Council and furnish the latter with such information as may be necessary to enable it to attain its objectives under Presidential Decree No. 1121.

 

 

          Section 20.  Cleanup Operations.—It shall be the responsibility of the polluter to contain, remove and clean up water pollution incidents at his own expense. In case of his failure to do so, the government agencies concerned shall undertake containment, removal and cleanup operations and expenses incurred in said operations shall be charged against the persons and/or entities responsible for such pollution….(underscoring supplied).

 

 

x        x        x

 

 

TITLE V.—WASTE MANAGEMENT

 

 

SEC. 42.  Purpose.—The  purposes of this Title are:

 

          (a)      To set guidelines for waste management with a view to ensuring its effectiveness;

 

          (b)      To encourage, promote and stimulate technological, educational, economic and social efforts to prevent environmental damage and unnecessary loss of valuable resources of the nation through recovery, recycling and reuse of wastes and waste products; and

 

          (c)      To provide measures to guide and encourage appropriate government agencies in establishing sound, efficient, comprehensive and effective waste management.

 

 

CHAPTER I. – Enforcement and Guidelines

 

 

SEC. 43.—Waste Management Programs—Preparation and implementation of waste management programs shall be required of all provinces, cities and municipalities. The Department of Local Government and Community Development shall promulgate guidelines for the formulation and establishment of waste management programs.

         

Every waste management program shall include the following:

 

x        x        x

 

(b)      a provision that the operation will not create pollution of any kind or will constitute public nuisance;

 

x        x        x

 

 

(f)       a provision for the periodic revision of the program to insure its effective implementation.”  

 

 

 

48.3   Through the Code on Sanitation of the Philippines (Presidential Decree No. 856), the Philippine government expressly declared that the “health of the people is of paramount importance” and all efforts of public services should be directed towards the protection and promotion of such. Accordingly, the Department of Health was vested with the following powers and functions:

 

 

          “SEC. 3. Functions of the Department of Health.—The Department shall have the following powers and functions:

 

(a)      Undertake the promotion and preservation of the health of the people and raise the health standards of individuals and communities throughout the Philippines;

 

          (b)      Extend maximum health services to the people in rural areas and provide medical care to those who cannot afford it by reason of poverty;

 

          (c)      Develop, administer and coordinate various health activities and services which shall include public health, preventive, curative and rehabilitative programs, medical care, health and medical education services;

 

          (d)      Upgrade the standards of medical practice, the quality of health services and programs to assure the people of better health services;

 

          (e)      Assist local health agencies in developing public health programs including medical care, and promote medical and public health research;

 

          (f)       issue permits to establish and operate government and private hospitals, clinics, dispensaries, schools of nursing, midwifery, and other paramedical courses, puericulture centers, clinical laboratories and blood banks;

 

          (g)      Prescribe standard rates of fees for health, medical, laboratory and other public health services; and

 

          (h)      Perform such other functions as may be provided by law.”    

 

          SEC. 4.        Authority of the Secretary.—In addition to the powers and authority of the Secretary (of Health) which are provided by law, he is likewise empowered to promulgate rules and regulations for the proper implementation and enforcement of the provisions of this Code.

 

 

x        x        x

 

 

SEC. 8.        Miscellaneous Provisions.—

 

          a.      International treaties, agreements and conventions.—The Republic of the Philippines recognizes international treaties, agreements and conventions on public health. Their provisions may be considered parts of this Code provided they do not contravene the Constitution, existing laws or any provision of this Code.”

         

 

PD 856 likewise states that:

 

 

CHAPTER II.—WATER SUPPLY

 

          SEC. 9.        Prescribed Standards and Procedures.—Standards for drinking water and their bacteriological and chemical examination, together with the evaluation of results, shall conform to the criteria set by the National Drinking Water Standards. The treatment of water to render it safe for drinking, and the disinfection of contaminated water sources together with their distribution systems shall be in accordance with procedures prescribed by the Department (of Health).

 

 

          SEC. 10.      Jurisdiction of the Department (of Health).—The approval of the Secretary (of Health) or that of his duly authorized representative is required in the following cases:

 

          a.      Sites of water sources before their construction;

 

          b.       Delivery of water to consumers from new or recently repaired water systems;

 

c.       Operation of a water system after an order of closure was issued by the Department (of Health);

         

d.       Plans and specifications of water systems of subdivisions and projects prior to the construction of housing units thereat; and

 

          e.       Certification of potability of drinking water.”

 

 

          On the matter of Sewage Collection And Disposal, PD No. 856 provides:

 

          “SEC. 72.    Scope of Supervision of the Department (of Health).—The approval of the Secretary or his duly authorized representative is required in the following matters:

 

x        x        x

 

 

          b.       Plans of individual sewage disposal system and the subsurface absorption system, or other treatment device;

 

          c.       Location of any toilet or sewage disposal system in relation to a source of water supply;

 

          d.       Plans, design, data and specifications of a new or existing sewerage system or sewage treatment plan;

 

          e.       The discharge of untreated effluent of septic tanks and/or sewage treatment plants to bodies of water;

 

x        x        x”

 

         

          Anent the subject of Nuisances, the said law provides:

 

 

“CHAPTER XIX.—NUISANCES AND OFFENSIVE TRADES AND OCCUPATIONS

 

x        x        x

 

 

          SEC. 85.      Types of Nuisances.—For the purpose of this Chapter, the following shall be considered nuisances:

 

          a.      Public or private premises maintained and used in a manner injurious to health;

 

 

x        x        x”

 

 

          Relative to the pollution of the environment, PD No. 856 provides thus:

 

 

“CHAPTER XX.—POLLUTION OF THE ENVIRONMENT

 

 

x        x        x

 

 

SEC. 88.      Authority of the Secretary.—The Secretary (of Health) is authorized to promulgate rules and regulations for the control and prevention of the following types of pollution:

 

          a.      Pollution of pesticides and heavy metals;

 

          b.       Pollution of food caused by chemicals, biological agents, radioactive materials, and excessive or improper use of food additives;

 

          c.       Non-ionizing radiation caused by electronic products such as laser beams or microwaves;

 

          d.       Noise pollution caused by industry, land and air transport and building construction;

         

          e.       Biological pollutants including the causative agents of intestinal infections;

 

          f.       Pollution of agricultural products through the use of chemical fertilizers and plant pesticides containing toxic chemical substances and unsanitary agricultural practices; and

 

          g.       Any other type of pollution which is not covered by the provisions of Republic Act 3931, the Rules and Regulations of the National Water and Air Pollution Control Commission, the provisions of Presidential Decree 480 and the rules and regulations of the Radiation Health Office of the Department of Health which is likely to affect community health adversely.”

 

 

 

48.4   Under Presidential Decree No. 1586 (Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures And For Other Purposes),  it has been declared the policy of the State “to attain and maintain a rational and orderly balance between socioeconomic growth and environmental protection ( Section 1, PD No. 1586).”

 

 

48.4.1         Furthermore, Section 4 of the said law provides:

 

 

SEC. 4.  Presidential Proclamation of Environmentally Critical Areas and Projects.—The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation, declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared  environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management ofsaid critical project or area, the President may, by his proclamation, reorganize such government offices, agencies, institutions, corporations or instrumentalities, including the realignment of government personnel; and their specific functions and responsibilities….”

 

 

 

 

 

48.5   Likewise, under Presidential Decree No. 1121 (Creating The National Environmental Protection Council), a National Environmental Protection Council under the supervision and control of the President of the Philippines was created with, among others, the following responsibility:

 

 

“SEC. 3.  Powers and Functions of the Council.—

 

(a)      To rationalize the functions of government agencies charged with environmental protection and with the enforcement of environment-related laws to the end that effective, coordinated and integrated systems of environmental protection, research and implementation and enforcement of such laws shall be achieved….”

 

 

 

48.6   The Marine Pollution Decree (Presidential Decree No. 979) declared that it is a national policy “to prevent and control the pollution of seas by the dumping of wastes and other matter which create hazards to human health, harm living resources and marine life, damage amenities, or interfere with the legitimate uses of the sea within the territorial jurisdiction of the Philippines (Section, PD No. 979).”

 

 

                             48.6.1   Section 4 of the said Decree likewise states:

 

 

          “SEC. 4. Prohibited Acts.—Except in cases of emergency imperiling life or property, or unavoidable accident, collision, or stranding or in any case which constitute danger to human life or property or a real threat to vessels, aircraft, platforms, or other man-made structure, or if dumping appears to be the only way of averting the threat and if there is probability that the damage consequent upon such dumping will be less than would otherwise occur, and except as otherwise permitted by regulations prescribed by the National Pollution Control Commission or the Philippine Coast Guard, it shall be unlawful for any person to:

 

          (a)      Discharge, dump or suffer, permit the discharge of oil, noxious gaseous and liquid substances and other harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland navigable waters of the Philippines;

 

          (b)      Throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged or deposited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into the tributary of any navigable water from which the same shall float or be washed into such navigable water; and

 

          (c)      Deposit or cause, suffer or procure to be deposited material of any kind in any place on the bank of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary of high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed or increase the level of pollution of such water.

 

 

x        x        x

 

 

          SEC. 6.  Enforcement and Implementation.—The Philippine Coast Guard shall have the primary responsibility of enforcing the laws, rules and regulations governing marine pollution. However, it shall be the joint responsibility of the Philippine Coast Guard and the National Pollution Control Commission to coordinate and cooperate with each other in the enforcement of the provisions of this Decree and its implementing rules and regulations, and may call upon any other government office, instrumentality or agency to extend every assistance in this respect.”         

 

 

48.7   Under the Clean Air Act of 1999 (Republic Act No. 8749), the Philippine State declared, among others, that (a) it shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature and (b) it recognizes the principle that “polluters must pay.”

 

48.8   Furthermore, the Philippine State formally recognized the following rights of Filipino citizens and declared that it shall guarantee their enjoyment:

 

          (a)      To breathe clean air;

 

(b)      To utilize and enjoy all natural resources according to the principle of sustainable development;

         

(c)      To participate in the formulation, planning, implementation and monitoring of environmental policies and programs in the decision-making process;

 

(d)      To participate in the decision-making process concerning development policies, plans and programs, projects or activities that may have adverse impact on the environment and public health;

 

(e)      To be informed of the nature and extent of the potential hazard of any activity, undertaking or project and to be served timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances;

 

(f)       Access to public records which a citizen may need to exercise his or her rights effectively under the Act;

 

(g)      To bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area and to seek the imposition of penal sanctions against violators of environmental laws; and

 

(h)     To bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity.

         

 

 

          49.     In the same manner, the Philippine State has express obligations to the Filipino people and the world community with respect to the protection of the environment under the general principles of international law, to wit:

 

 

                   29.1   The Duty To Avoid Environmental Harm

 

Under international law, all states, including the Philippines, have the obligation to control sources of harm to others or to the global environment.

 

Principle 21 of the 1972 Stockholm Declaration On The Human Environment affirms both the sovereign right of states to exploit their own resources “pursuant to their own environmental policies” and their responsibility “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction.” The aforesaid Principle has been regarded by the States present in the Stockholm Conference and by the General Assembly of the United Nations as reflecting customary international law.

 

          Furthermore, the general duty of States not to cause  environmental damage to the environment of other states or to areas beyond a state’s national jurisdiction is enshrined in the 1992 United Nations Convention On The Rio Declaration Of Environment and Development (June 15, 1992) which states:

                  

 

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” (emphasis supplied)

 

         

Principle 16 of the Rio Declaration further provides:

 

“National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” (emphasis supplied)

 

 

          As is widely recognized, the responsibility of states not to cause environmental damage precedes the Rio Declaration. There is an obligation of all states to protect the rights of other states as elaborated in the 1941 Trail Smelter decision (3 U.N. Rep. Int’l Arb. Awards 1911) which, among others, states:

 

“under principles of international law…no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to  the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”

 

 

          The duty to avoid environmental damage has also been accepted in international treaties as well as in other international practices.

 

Essentially, the foregoing precepts have become part of the generally-accepted principles of international law which, in turn, form part of the law of the Philippines under the incorporation clause of the Constitution.

 

 

          29.2   Precautionary Principle

 

 

          The precautionary principle in international law is reflected in Principle Fifteen of the Rio Declaration which states that where there are warnings of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.

 

          The 1985 Vienna Convention For The Protection Of The Ozone Layer is the first treaty to embody the foregoing principle. Subsequently, the precautionary principle for the protection of the environment has been widely addressed.

         

 

29.3   The Principle Of Common But Differentiated Responsibility

 

 

          This principle includes two (2) constituent elements. First is the common responsibility of states for the protection of the global environment, that is, states should participate in the world effort for conservation. This element is embodied in various treaties such as the Convention For The Establishment Of An Inter-American Tropical Tuna Commission (May 31, 1949) and the Treaty On The Exploration and Use of Space (27 January 1967).

 

 

          On the other hand, the second element of the aforesaid principle recognizes the fact that due to different development paths and the need to share in the responsibility for ecological degradation, some countries may be asked to carry more of the burden of conservation. According to Max Soto (“General Principles Of International Environmental Law” published in the ILSA Journal of International and Comparative Law, Inaugural Bilingual Edition, Vol. 3, No. 1, Fall 1996), the idea is that states should comply with international obligations for the conservation of the environment on the basis of equity and in accordance with their common but differentiated responsibilities and respective capacities.

 

 

          The aforesaid Principle is acknowledged under Principles Four and Seven of the Rio Declaration.

 

For violating its own laws, including the aforementioned generally-accepted principles of international law, the Philippine government, through the Defendant-Agencies may be sued directly.

 

In the cases of Ministerio v. Court of First Instance (G.R. No. L-31635, August 31, 1971) and Amigable v. Cuenca (G.R. No. L-26400 February 29, 1972), the Supreme Court held that where the government itself has violated its own laws, the aggrieved party may directly implead and sue the government.

 

 

 

B.        LIABILITY OF THE DEPARTMENTS OF DEFENSE, NAVY AND AIR FORCE OF THE UNITED STATES OF AMERICA

 

 

50.     It is beyond cavil that a State has responsibility for an act or omission which results in a breach of a legal obligation founded upon a treaty, custom or other such unilateral acts (Ian Brownlie, Principles of Public International Law [ Fifth Ed., 1988, Oxford University Press, Inc., New York]) p. 435.).

 

 

51.     Necessarily, any State which violates a legal obligation under international law is under an equal obligation to make reparation.

 

 

52.     In a report on the Spanish Zone of Morocco Claims (Translation; French text, RIAA ii. 615 at 641), Judge Huber said:

 

 

“Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.”

 

 

53.     Similarly, in its judgment in the Chorzow Factory (Jurisdiction) case (1927), PCIJ, Ser. A, No. 9, p. 21), the Permanent Court of Justice stated thus:

 

“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefor is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”

 

 

54.     Focusing further on the issue of reparation, the Permanent Court of Justice declared:

 

 

“the essential principle contained in the actual notion of an illegal act…is that the reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if it is not possible, payment of a sum corresponding to the values which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law (Certain German Interests In Upper Silesia (F.R.G. v. Poland), 1928 P.C.I.J. (Ser. A) No. 17, p. 377).

 

 

 

55.     Lastly, in the Caire claim (1929) RIAA v. 516 at 529-31), Verzijl, the President of the Franco-Mexican Claims Commission stated thus:

 

 

“The State also bears an international responsibility for all acts committed by its officials or its organs which are delictual according to international law, regardless of whether the official organ has acted within the limits of his competency or has exceeded those limits…”

 

 

 

56.     Where the responsibility of a state is established, an obligation to make reparation arises. The injured state may require the other to:

 

(a)      Discontinue the act;

 

(b)      Apply national legal remedies;

 

(c)      Re-establish the situation existing before the act in question, or to the extent that this is impossible, pay corresponding compensation; and

 

(d)      Provide guarantees against repetition.

 

 

 

57.     The specific legal liability of the Defendant agencies of the United States government under international law is defined under Principle 2 of the United Nations Convention in Rio Declaration on Environment and Development (June 1992) which provides:

 

 

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” (emphasis supplied)

 

 

 

          58.     As indicated in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the “Basel Convention”) adopted by the Conference of Plenipotentiaries in 1989, and to which the United States is a signatory, States are responsible for the fulfillment of their international obligations concerning the protection of human health and protection and preservation of the environment, and are liable in accordance with international law.

 

59.     The Preamble of the Basel Convention clearly provides that States should take necessary measures to ensure that the management of hazardous wastes and other wastes, including their transboundary movement and disposal, is consistent with the protection of human health and the environment whatever the place of disposal, and that States should ensure that the generator should carry out duties with regards to the transport and disposal of hazardous wastes and other wastes in a manner that is consistent with the protection of the environment, whatever the place of disposal.

 

60.     The United States is obligated under the Basel Convention to ensure that there will be no dumping of the toxic wastes on the territory of another State like the Philippines without the knowledge and consent of the latter.  Clearly, if the transboundary movement of hazardous wastes is expressly proscribed under international law, with more reason should the dumping and unlawful disposal and storage of hazardous wastes by one State, while it is in the territory and is for all purposes a guest of another State, be proscribed and penalized.

 

 

            61.       Furthermore, in light of the foregoing, the breach of a duty under international law by one state which results in loss to another state is actually a tort. This is especially so since a tort always involves a violation of some duty owing to plaintiff, and generally such duty must arise by operation of law and not by mere agreement of the parties (Black’s Law Dictionary, Sixth Edition, 1990). Needless to state, a tort is essentially a legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual (Black’s Law Dictionary, Ibid).

 

62.     Prominent authors in public international law agree that “there is no harm in using the term ‘international tort’ to describe the breach of duty which results in loss to another state (Schwarzenberger, International Law, i. 562, 563, 571, 581; the Union Bridge Company claim (1924), RIAA vi. 138 at 142; and Jenks, The Prospects Of International Adjudication (1964), 514-33).”

 

63.     Among such authors, Ian Brownlie, commenting on the international legal implications of the Corfu Channel Case (ICJ Reports (1949), stated that “the emphasis on the duty to make reparations does present a broad concept akin to civil wrongs in municipal systems (Brownlie, p.438).” Upon the foregoing, States may indeed commit “torts” (“international torts’) and be held liable therefor.

 

64.     Thus, the acts of the United States Government which directly resulted to deaths and injuries to the Plaintiffs in Philippine territory are constitutive of international torts and the former should be held liable.

 

65.     Apart from the foregoing, the Defendants agencies of the United States Government are under an obligation to observe the aforementioned Philippine laws on the environment while within Philippine jurisdiction.

 

 

C.      SUABILITY OF THE DEPARTMENTS OF DEFENSE, NAVY AND AIR FORCE OF THE UNITED STATES OF AMERICA IN PHILIPPINE COURTS

 

 

66.     Several general principles of international law permit the filing of the instant suit against the United States of America in Philippine courts, to wit:

 

[ i ]

 

 

THE GOVERNMENT OF THE UNITED STATES OF AMERICA EXPRESSLY ADMITTED ITS CIVIL LIABILITY FOR PERSONAL INJURY OR DEATH OF PHILIPPINE INHABITANTS OCCASIONED BY THE OPERATION OF ITS MILITARY BASES UNDER THE 1947 RP-US MILITARY BASES AGREEMENT

 

 

          67.     Article XXIII of the 1947 RP-US Military Bases Agreement (a copy thereof is attached as Annex “D”) expressly provided thus:

 

 

“Article XXIII

CIVIL LIABILITY

 

“For the purpose of promoting and maintaining friendly relations by the prompt settlement of meritorious claims, the United States shall pay just and reasonable compensation, when accepted by claimants in ful satisfaction and in final settlement, for claims, including claims of insured by excluding claims of subrogees, on account of damage to or loss destruction of private property, both real and personal, or personal injury or death of inhabitants of the Philippines, when such damage, loss, or individual members thereof including military or civilian employees thereof, or otherwise incident to non-combat activities of such froces; provided that no claim shall be considered unless presented within one year after the occurrence of the accident or incident out of which such claim arises.

 

 

68.     Such express acknowledgement of civil liability on the part of the United States government constitutes an express waiver of its sovereign immunity from suit.

 

69.     Needless to state, inasmuch as the injuries, death and illnesses, being suffered by the Plaintiffs are still continuing, neither may the United States claim that the right of action of the Plaintiffs has prescribed, assuming without conceding that the limitation under Article XXIII of the 1947 MBA is lawful.

 

70.     Upon such express waiver of sovereign immunity, the United States government may be directly sued to enforce its civil liability which arises not onl;y from law but also upon a contract, that is, the Military Bases Agreement.

 

 

[ ii ]

 

 

THE ILLEGAL ACTS OF THE UNITED STATES GOVERNMENT ARE CONSTITUTIVE OF INTERNATIONAL TORTS THE LEGAL ACTION FOR WHICH MAY BE INSTITUTED IN THE PHILIPINES.

 

 

 

71.     As earlier characterized, the acts of the United States Government, through the Defendant agencies thereof, while within Philippine territory, insofar as these directly caused harm to the Plaintiffs, are constitutive of torts.

 

72.     Such being the case, the following internationally-accepted principles on tort liability should govern the instant action:

 

 

a.       The Rule of Elective Concurrence

 

 

This principle has its origins in the ruling of the German Supreme Court that a tort is committed in both the place where the actor engages in his conduct and the place where the effects of his conduct occur. Thus, the injured person may choose to sue under one law or the other, he can elect the law most advantageous to his  demand but he is not permitted to cumulate the benefits flowing from more than one law. This view has been followed by the Swiss Federal Tribunal and, in a case of unfair competition, by the Italian Supreme Court (Jovito Salonga, Private International Law (1995 ed.) p. 391 citing Reichsgericht, No. 20, 1888 and II Rabel, 304-306).”

 

Since the places of the occurrence of the tortious conduct of the United States Government and the effects thereof are both in the Philippines, the Plaintiffs have every right, under international law, to institute the present suit upon causes of action arising from Philippine and international environmental laws.

 

 

b.       The “State Of The Most Significant Relationship” Rule

 

 

This principle in international law is enshrined in Section 145 of the Second Restatement (Conflict of Laws) of 1969 of the United States which states that the rights and liabilities of the parties with respect to an issue in tort are determined by “the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties

 

In determining the State which has the most significant relationship, the following contacts are to be taken into account and evaluated according to their relative importance with respect to the particular issue:

 

          (a)      The place where the injury occurred;

 

(b)      The place where the conduct causing the injury occurred;

 

(c)      The domicile, residence, nationality, place on incorporation and place of business of the parties; and

 

(d)      The place where the relationship, if any, between the parties is centered (Salonga, Private International Law, ibid).

 

 

In Babcock v. Johnson (12 N.Y. 2d, 473; 240 N.Y.S. 2d 743; N.E. 2d 279 (1963), the United States Supreme Court provided the rationale for the foregoing principle in international law:

 

“Justice, fairness, and the ‘best practical result’ may be best achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that ‘it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation.”              

 

 

The rationale stated in Babcock finds strong support in the pronouncement of Rabel (II Rabel 252 cited in Salonga, ibid., p. 385):

 

 

“The primary object of the law of torts is to regulate the social order and prevent its infringement; the secondary concern is to compensate the victims of violations of this order. The State cannot fulfill this duty without including foreigners in its commands.”

 

 

73.     On the basis of the aforestated principles in international law, it is the Philippine jurisdiction which has the most significant relationship to the issues raised in this proceeding. Necessarily, the United States of America, as the tortfeasor, may be sued in Philippine courts.

 

74.     Federal laws as well as the decisions of the Supreme Court of the United States expressly admit the suability and liability of the Federal government for torts in accordance with the foregoing principles.

 

75.     Under the Federal Tort Claims Act  (28 U.S.C.A. 2674), the general directive is that the government is to be held “in the same manner and to the same extent as a private individual under the circumstances.”   The federal courts are directed to follow, not federal law of civil rights or otherwise, but the tort law of the state in which the tort occurred [28 U.S.C.A. 1346 (b)], including its choice of law rules.

         

76.     On the other hand, in Babcock versus Johnson and in many other cases, the Supreme Court of the United States, whose decisions form part of the domestic laws of the said country, finds no legal impediment in the filing of an action for torts in the courts of the state which has the most significant relationship to the place of injury and/or to the plaintiffs. 

 

77.     Foregoing considered, there is no legal impediment to the filing of the instant action in Philippine courts.

 

 

                  [ iii ]  

 

THE GOVERNMENT OF THE UNITED STATES OF AMERICA VIOLATED THE INTERNATIONALLY-GUARANTEED RIGHT OF THE PLAINTIFFS TO LIFE FOR WHICH IT MAY BE HELD LIABLE IN PHILIPPINE COURTS.

 

 

 

78.     International law recognizes a human right to a decent, viable or healthy environment.

 

79.     Such right stems from the guarantee enshrined  in Article 6 (1) of the United Nations International Covenant On Civil and Political Rights which states that “No one shall be arbitrarily deprived of his life.”

 

80.     The foregoing is no “mere guarantee of a meager existence assuming no more than a brutish survival” for it is attested by Principle 1 of the 1972 Stockholm Declaration which reads:

 

Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well being.”

 

 

81.     Furthermore, such inextirpable relationship between the “right to life” and the “right to a sound environment finds support in the reference to “man’s environment” in the United Nations Stockholm Conference On The Human Environment (UNCHE).

 

82.     The said document refers to “man’s environment” as that “which gives him physical sustenance and affords him the opportunity for intellectual, spiritual, moral, and social growth” and further states that “both aspects of man’s environment, the natural and the man-made, are essential for his well-being and enjoyment of basic human rights.”

 

83.     The European Community’s Action Program On The Environment is more emphatic on the foregoing point as it defines the “environment” as the “combination of elements whose complex inter-relationships make up the settings, the surroundings and the conditions of life of the individual and of society as they are and as they are felt.”

 

84.     Verily, the Plaintiffs, individuals who enjoy the internationally-guaranteed “right to life”, may institute the instant action in view of the Defendants’ violation of the same.

 

85.     The right of a person to assert a claim for compensation for the violation of his/her “right to life” was explicitly recognized in an individual petition (UN HRC, Decision No. 67/1980 v. Canada [1990]) under Article 6 (1) of the 1966 UN Covenant On Civil and Political Rights where it was claimed that the dumping of nuclear wastes in a Canadian town violated the right of its inhabitants and future generations.

 

86.     In the instant case, the wanton and reckless disposal, abandonment and dumping of toxic and hazardous wastes in Philippine territory by the United States Government, which damaged the environment and directly resulted to deaths and injuries to the Plaintiffs, is a grave violation of the internationally-guaranteed “right to life” of the latter.

 

87.     Corollarily, where the cause of action is violation of internationally-protected human rights, there should be an exhaustion of local remedies. Such principle, in turn, mandates that the instant suit which are essentially against the Governments of the United States and the Republic of the Philippines must initially be instituted in Philippine courts.

 

 

 

      [ iv ]

 

THE UNITED STATES GOVERNMENT EXPRESSLY CONSENTS TO THE FILING OF ANY ACTION AGAINST ITSELF FOR THE COMMISSION OF INTERNATIONAL TORTS.

 

 

87.     The United States expressly consented to a filing of any action for tort against it with the enactment of the Federal Tort Claims Act  (28 U.S.C.A. 2674). Under the said statute, the general directive is that the government is to be held “in the same manner and to the same extent as a private individual under the circumstances.”   The federal courts are directed to follow, not federal law of civil rights or otherwise, but the tort law of the state in which the tort occurred [28 U.S.C.A. 1346 (b)], including its choice of law rules.

 

88.     By expressly recognizing the fact that individuals may file tort actions in U.S. courts against foreign states for acts committed in violation of the law of nations under its Alien Tort Act (28 U.S.C. 1350), the United States government has expressed its consent to be sued in foreign jurisdictions for its tortious conduct in violation of the law of nations.

 

89.     Certainly, the destruction of the Philippine environment with the consequent loss of Philippine lives due to the irresponsible dumping and/or disposal of toxic wastes by the United States Government is violative of the law of nations, U.S. Federal laws, and the Philippine laws.   

                  

90.     In addition to what is provided under the Federal Tort Claims Act (which exposes the United States government to liability for certain tort claims), various environmental statutes have waived the sovereign immunity of the United States and have permitted the filing of suits by affected individuals.

 

[a[      The Federal Water Pollution Control Act (33 U.S.C. 1367) (“FWPCA”) requires the United States to observe environmental laws relating to water pollution in the same manner and to the same extent as any nongovernmental entity.  The FWPCA states:

 

“Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.” 33 U.S.C. § 1323.

 

 

While operating Clark Air Base and Subic Naval Base, the United States knowingly engaged in activities which resulted in the discharge of pollutants.  Moreover, it had jurisdiction over Clark Air Base as well as Subic Naval Base under the terms of the [1947 RP-US Military Bases Agreement].  Equally significant, the United States had authority over its own personnel to enforce the provisions of environmental laws and impose the standards to which it was subject under its own law as well as Philippine law.

 

 

[b]      The Toxic Substances Control Act (15 USC 2602) (“TSCA”) likewise expressly authorizes the filing of civil suits against the U.S. Government, for violations of the TSCA, to wit:

 

“against any person (including the United States…) who is alleged to be in violation of this chapter or any rule promulgated under section 2603, 2604, or 2605 of this title or subchapter II or IV of this chapter, or order issued under section 2604 of this title or subchapter II or IV of this chapter to restrain such violation.” 15 U.S.C. § 2619(a)(1).  See also U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627 (1992).

 

 

The inclusion of the phrase “including the United States” in the citizen suit provision clearly establishes the intent of legislators to make the U.S. government accountable for violations of environmental requirements and standards.

 

[c]      Further, the Resource Conservation and Recovery Act (42 U.S.C. 6961) (“RCRA”), which covers solid and hazardous wastes, contains a similar waiver of sovereign immunity.  The RCRA also permits citizen suits against the United States for violations of the Act (42 U.S.C. 6972).

 

[d]      By virtue of the amendment of the Solid Waste Disposal Act under the Federal Facility Compliance Act of 1992 (Public Law 102-386, October 6, 1992), US legislators have expressly waived the sovereign immunity of the United States for purposes of enforcing Federal, State, interstate, and local requirements with respect to solid and hazardous waste management.

 

 

 

 

 

                                                  [ v ]

 

INTERNATIONAL COMITY MANDATES THE FILING OF THE INSTANT ACTION AGAINST THE GOVERNMENT OF THE UNITED STATES OF AMERICA IN THE PHILIPPINES.

 

 

 

          91.     The right of equality of states has been asserted and affirmed in classical international documents since the days of Hugo Grotius. The ideas of independence and equality among states are sanctified by history and theory. They stem historically from the Peace of Westphalia in 1648 and theoretically from natural law. Emmerich Vattel regarded them as “fundamental, essential and absolute” rights along with existence, respect and territory.

         

92.     The traditional doctrine is that whatever inequality may exist among States due to size, population, power, degree of civilization, wealth, persons, resources, access to oceans, armaments, and other characteristics, they are nevertheless equal as international persons.

 

          93.     In accordance with the traditional view, another consequence of the legal equality of states is that no state can claim jurisdiction over another. In Berizzi Brothers Co. v. SS Pesaro (271 US 562 [1926]), the Supreme Court of the United States, explained the raison d’etre for the doctrine:   

 

 

The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every sovereign authority, and of the international comity which includes every sovereign state to respect the independence and dignity of every sovereign state, each and every one declines to exercise by means of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to jurisdiction.”

 

 

          94.     The dictates of international comity notwithstanding, the United States of America does not actually adhere to the aforesaid international legal precept.

 

          95.     In 1789, the Congress of the United States passed the Alien Tort Statute which grants the U.S. district courts original jurisdiction over any civil action by an alien for a “tort only, committed in violation of the law of nations or a treaty of the United States (28 U.S.C. Sec. 1350).”

 

          96.     In 1980, through the Alien Tort Statute, the United States Court of Appeals, in the case of Filartiga v. Pena-Irala (639 Fed. 2d 876 [1980]), upheld federal jurisdiction over a suit between an alien (a Paraguayan) and an official of his own government (the Republic of Paraguay) for official torture committed within that government’s internal jurisdiction.

 

          97.     In Filartiga, the US Court of Appeals held thus:

 

 

“…Accordingly, we must conclude that the dictum in Dreyfus v. von Finck, supra, 534 F. 2d at 31, to the effect that “violations of international law do not occur when the aggrieved parties are nationals of the acting state,” is clearly out of tune with the current usage and practice of international law. The treaties and accords cited above, as well as the express foreign policy of our own government, all make it clear that international law confers fundamental rights  upon all people vis-à-vis their own governments….

 

“Appellee submits that even if the alleged tort is a violation of modern international law, federal jurisdiction may not be exercised consistent with the dictates of Article III of the Constitution. The claim is without merit. Common law courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred. Moreover, as part of an articulated scheme of federal control over external affairs, Congress provided, in the First Judiciary Act, Sec. 9 (b), 1 Sta. 73, 77 (1789), for federal jurisdiction over suits by aliens where principles of international law are in issue. The constitutional basis for the Alien Tort Statute is the law of nations, which has always been a part of the federal common law (underscoring supplied).

 

“It is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction. A state or nation has a legitimate interest in the orderly resolution of disputes among those within its orders, and where the lex loci delicti commissi is applied, it is an expression of comity to give effect to the  laws of the state where the wrong occurred.

 

 

x             x            x

 

 

“…we believe it is sufficient here to construe the Alien Tort Statute, not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.

 

 

                       x            x              x

 

 

“…It is only where the nations of the world have demonstrated that the wrong  is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute…”

         

 

                       x             x              x

 

 

“…Paraguay’s renunciation of torture as a legitimate instrument of state policy, however, does not strip the tort of its character as an international law violation, if it in fact occurred under color of government authority….”

                  

 

          98.     Again, in Trajano v. Marcos (125 L.Ed. 2d 661, 113 S.Ct. 2959), the U.S. District Court of Hawaii exercised jurisdiction over a suit instituted by a Filipino citizen against Imee Marcos and Fabian Ver, likewise Filipino citizens and public officers under the Marcos regime,  for alleged torture and wrongful death and proceeded to award to the plaintiff $ 4.4 Million in damages.

         

99.     Verily, under the Alien Tort Statute, the courts of the United States may readily exercise jurisdiction over completely foreign tort cases, even those instituted against foreign governments, particularly when such concern violations of human rights.

 

          100.   Yet the official stance of the United States government on the matter does not stop with the aforesaid statute.

 

          101.   In 1976, the U.S. Congress passed the Foreign Sovereign Immunities Act (28 U.S.C., Secs. 1330, 1602-1611 [1994]) which enumerates the instances when American courts may compel a foreign state to appear in a civil action. The FSIA provides for both personal and subject matter jurisdiction over certain suits against foreign governmental entities. Under the FSIA, a foreign state is generally immune from suit unless the claim arises out of the Act’s list of exceptions.

 

          102.   Verily, the courts of the United States may take jurisdiction over actions against sovereign states for torts founded upon violations of international law and human rights.

 

          103.   To deny an equal and reciprocal right for any sovereign state, through its courts, to exercise jurisdiction over similar actions against the United states government would be a gross violation of the international legal principle of comity and equality of states.

 

104.   Otherwise stated, if the United States allows the filing of suits against sovereign states in its own courts, an equal right should likewise be enjoyed by sovereign states in accordance with the principle of comity and equality.

 

105.   After all, if the United States can hail a foreign government into its courts, international law dictates that any sovereign state must also possess the same capacity as a matter of right in keeping with the time-honored principle of comity.

 

 

[ vi ]

 

SOVEREIGN IMMUNITY MAY NOT BE INVOKED TO DEFEAT THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW ON THE PROTECTION OF HUMAN RIGHTS AND THE PRESERVATION OF THE ENVIRONMENT FOR THE COMMON BENEFIT OF MANKIND.

 

 

106.   The archaic concept of sovereign immunity may not be invoked to allow States to destroy with impunity the “common heritage of mankind” and deprive future generations of their internationally-guaranteed right to a sound environment.

 

107.   Such a traditional precept should not be allowed to prevail over the imperative to preserve the global environment for the benefit of the living and the future generations.

 

108.   The world community could ill-afford to have guilty and irresponsible States hide behind the “royal prerogative of dishonesty” when such will surely result in the inexorable destruction of the global environment. This is especially so since States have achieved such a level of advancement where the unrestricted exercise of their “sovereign rights” to exploit their own environment and natural resources will ineluctably cause injury to neighboring states and the global community in general.

 

109.   Potentially hazardous acts of “sovereign” states may not be effectively restricted if, at every turn, they may conveniently invoke ‘sovereign immunity” from suit, especially when actions for violations of international environmental norms are instituted against them by individuals who, in reality, are the direct recipients of the adverse effects thereof.

 

          110.   There is no cogent reason why States should not be governed by, and made accountable under, their own rules and the law of nations, especially when the matter involves not only the protection of the environment but also the lives and health of innocent individuals. 

 

111.   States have increasingly waived immunity particularly in the field of international environmental law, voting to become parties to international treaties and agreements and support enforcement and compliance procedures. Clearly, it is not unrealistic for government agencies to comply with the provisions of law while still preserving their political and security interests.

 

112.   To shield a state (whether foreign or domestic) from suit would elevate sovereignty over justice and the fundamental human rights of individuals.  It would be inconsistent with the advancements made in this era of globalization, political and economic interdependence, which both the Philippines and the United States have espoused, and which require States to act as responsible, just and law-abiding citizens of the world.

 

113.   Absolute reliance on state immunity concepts breeds the injustice and inhumanity which people all over the world have struggled to overcome.  Over the last 40 years, since the Nuremberg War Trials, more and more nations have found it appropriate to limit the excesses of state power and inquire into the basis for state acts. As in the Philippines (cf. Ministerio v. CFI, 40 SCRA 464), United States courts have held that states cannot be protected for violations of constitutional rights (see, for instance, Brown v. State, 89 NY2d 172; 674 NE2d 1129 (1996)).  This supports the trend towards increased state responsibility and accountability, particularly in the context of international environmental law.

 

114.   All the foregoing considered, it is the Philippine courts which have indubitable jurisdiction over the case.

 

 

ALLEGATIONS COMMON

TO ALL CAUSES OF ACTIONS

 

 

BRIEF HISTORICAL BACKGROUND

 

 

115.   After almost fifty years (50) of subjugation and colonization, the Government of the United States of America granted political independence to the Philippines on 4 July 1946.

 

116.   Barely eight (8) months thereafter, one of the several agreements that the U.S. Government required the new Philippine Government to sign was the Military Bases Agreement (“MBA” for brevity), which was signed on 14 March 1947.

 

117.   This 1947 RP-US MBA allowed the U.S. to retain, maintain and operate its twenty three (23) military bases in the Philippines for ninety-nine (99) years, without obligations on the part of the U.S. to pay rental to the Philippines for the use of the land areas covered.

 

118.   Later, the term of the 1947 RP-US MBA was reduced from  years to 44 years, or up to year 1991.

 

119.   Of these 23 military bases in the Philippines, included were the Clark Air Base in Pampanga and Tarlac, and the Subic Naval Base in Zambales and Bataan.

 

 

SUBIC NAVAL BASE

 

         

104.   Subic Bay is a deep-water harbor, formed by volcanic activity, about fifty (50) miles northwest of Manila.

 

          120.   The Spanish government had already begun construction of a naval station at Subic Bay when US Admiral Dewey sailed into Manila in 1898. As early as 1884, it was decided by Spanish Royal Decree that Subic Bay serve as Spain’s main naval station in the Far East. Filipino corvee labor was used in the construction of the Spanish naval station which begun in 1885. Just before Dewey’s arrival in 1898, the harbor had been completely dregged and several buildings, including an arsenal, had been set up.

 

          121.   In 1901, then US President Franklin D. Roosevelt issued an executive order designating Subic Bay and 70,000 acres of adjacent land, including what is now Olongapo City, as a military reservation area. The naval reservation was established in 1904 and the Ship Repair Facility (SRF) was built in 1906.

 

          122.   After World War II, the US Navy began constructing Cubi Point Naval Air Station out of jungle and mountain. More than ninety (90) percent of the then Subic Naval Base area was in Bataan province while the rest was in Zambales.

 

          123.   The mission of the Subic Bay Naval Base was to support operating units of the US Seventh Fleet in the Western Pacific handling one million tons of supply per year. More important than the other US military base at Clark Field, Pampanga, Subic Naval Base was the largest naval supply depot in the world. It handled one million (1,000,000) barrels of fuel each month, providing storage and distribution of fuel and other consumable goods for the US Seventh Fleet, the US Medical Center, Clark Air Base and Camp John Hay. It also served as the major ship repair facility for the US Seventh Fleet which covers all US combat ships in the Asian region. Subic provided logistical, command and control, communications, training and medical support to the entire Seventh Fleet and its aircraft carriers.

 

          124.   Subic Naval Base covered 62,000 acres altogether composed of 36,000 acres (15,000 hectares) of land and 26,000 acres (11,000 hectares) of water. The berthing space at its three major wharves was 6,000 feet at depths ranging from 20 to 40 feet which could accommodate the US Navy’s largest aircraft carrier or submarine. On the other hand, the runway at Cubi Point Naval Air Station is 9,000 feet long.

 

          125.   In 1970, the installations at Subic were estimated to be worth $271 million, of which $236.4 million was plant property investment. The Subic Bay Naval Complex included the following facilities:

 

          (1)      The Naval Supply Depot (NSD). This facility provided wholesale fuel, cold storages and consumable supplies needed by the Seventh Fleet. The NSD had nearly 1.75 million square feet of storage space and carried an inventory of 180,000 items (80% of which is containerized). One of its most important responsibilities was the handling of petroleum products. It processed more than four million barrels of fuel a month including the responsibility of supplying Clark Air Base with aviation fuel through a 41-mile underground pipeline. The same transferred to vessels in port and then supplied to the Mobile Logistics Support Force which, in turn, replenished the ships of the Seventh Fleet at sea. Some 22 tanks comprised the “fuel farm” of the NSD which made it the largest facility of its kind in the world during its time.

 

          (2)      The US Naval Magazine (Camayan Point). This facility was composed of 5,200 hectares of ammunition wharf. It stored, renovated and issued ammunition and explosives in 200 permanent magazines and hardstands. The magazine complex itself consisted of two piers which allowed the direct transfer of ammunition between ships and the storage areas. It provided storage for 46,000 tons of ammunition and could process 15,000 to 25,000 tons of ammunition per month. It hosted 3.8 million cubic feet of ammunition storage in nine buildings and an ammunition wharf that could accommodate all major combatant ships of the US Seventh Fleet.

 

          (3)      Cubi Point Naval Air Station (Radford Field) was the primary support site for the Seventh Fleet’s attack carrier striking force, i.e. aircraft and aircraft carriers of the fleet, with apron-parking spaces of 313,000 square yards. It also served as the base for the submarine-hunting, nuclear-capable long-range patrol and reconnaissance planes of the US Navy.

 

          (4)      The US Naval Ship Repair Facility (SRF). This 110-acre facility, which included over 80,000 square feet of building space, was an extensive ship repair complex. Three principal wharves enclosed the area. It provided direct dry-docking overhaul, repair, alteration and conversion capabilities and performed 60 % of all Seventh Fleet repair work. At the SRF, US ships were nested up to three feet deep with portal and floating cranes alongside. Four floating dry docks capable of handling ships were also in operation. The shops of its Structural Group provided pipe and copper work, boiler services, welding, forging, sheet metal and ship-fitting activities. On the other hand, repairs extended by its Mechanical/Machinery Group ranged from those dealing with pumps and propellers to hydraulic and ordnance items. The facility is in constant operation, round-the-clock, year-round. During the Vietnam war, the SRF Subic accommodated up to 110 ships at a time(a typical base load today is 10 to 15 ships). Among the ships serviced by the SRF were nuclear-powered and –laden destroyers, cruisers and aircraft carriers of the US Seventh Fleet.

 

          (5)      The US Naval Regional Medical Center. It is located high above Subic Bay within the territorial jurisdiction of the province of Bataan. It provided general clinical and health services for active and retired personnel and their dependents.

 

          (6)      Training Facilities and Target Ranges. Amphibious and gunnery practices were likewise carried out within the base confines.  The US Navy’s Jungle Survival Training courses were taught at the Cubi Point Naval Air Station. On the other hand, Green Beach at Subic Bay, along the Zambales coastline, was the training ground for the US Navy’s Special Warfare Department. The US Naval Forces also used nearby Los Frailes and Tabones Isalands forpractice air-to-surface bombing while Leon Creek was employed for ship gunfire and shore fire control practice. In addition, the Philippine government also allowed the US Navy to use training areas outside the base perimeter, like the Southeast Zambales Troop Training Area and Wild Horse Creek Close Air Support Range.

 

          (7)      Fleet Recreation Center (FRC). It was the largest R&R center for the crews of the US Seventh Fleet and included the island resort of Grande Island located at the mouth of Subic Bay. At the same time, the neighboring city of Olongapo hosted over 5,000 US personnel at any single day.

 

          (8)      Nuclear Submarine Facility. The Subic Naval Base likewise provided berthing facilities for the nuclear-powered and nuclear-armed submarines of the US Seventh Fleet.

 

IN 1991, THE PHILIPPINE SENATE REJECTED TREATY TO EXTEND STAY OF US BASES BEYOND 1991

 

126.   In May 1990, a little over a year prior to the expiration of the 1947 RP-US MBA, the US and Philippine Governments started to negotiate for new military bases agreement.

 

          127.   Hence, on 27 August 1991, the U.S. and the Philippines signed a new agreement captioned “Treaty of Friendship, Cooperation and Security Between the Government of Republic of the Philippines and the Government of the United States of America”, which would have allowed the U.S. to retain its military bases in the Philippines for another ten (10) years.    

 

128.   However, the Philippine Senate, pursuant to the provisions of the 1987 Philippine Constitution, overwhelmingly rejected the 27 August 1991 Treaty, thereby ending the U.S. leasehold over all its military bases in the Philippines, including over Clark Air Base and Subic Naval Base.

 

          130.   Likewise prodded by the eruption of the Mt. Pinatubo in 1991, the U.S. Air Force completed its withdrawal or pull-out from Clark Air Base in November 1991, and the US Navy from Subic Naval Base in November 1992.

 

SUBIC, OLONGAPO CITY AND ITS ENVIRONS

 

131.   Subic Bay is fed by six tributaries: Ilanin River; Apaliin River; Triboa River; Botoon River; Malauan River; Bicnictican River; and Kalaklan River, most of which go the former Subic Naval Base and into the outlying city of Olongapo. 

 

132.   Plaintiffs and the deceased victims are and were residents of communities found near or along these rivers.

 

133.   During typhoons and storms, the waters in Subic Bay rise up and flood the arteries of the rivers causing the rivers to swell upstream.  

 

134.   The swelling of the rivers causes floods in the near and riverside communities causing the waters from the bay and the rivers penetrate inland entering the water supply of these communities. 

 

135.   As a result thereof, the residents of these communities, which include herein plaintiffs and the deceased victims, bathed, drank, played, swam, or one way or another used the waters from the river, the bay and/or the water supply causing them to ingest or otherwise be exposed to whatever toxins or contaminants are present in the water supply for prolonged periods.  

 

IN 1991, THE PHILIPPINE SENATE REJECTED TREATY TO EXTEND STAY OF US BASES BEYOND 1991

 

136.   In May 1990, a little over a year prior to the expiration of the 1947 RP-US MBA, the US and Philippine Governments started to negotiate for new military bases agreement.

 

          137.   Hence, on 27 August 1991, the U.S. and the Philippines signed a new agreement captioned “Treaty of Friendship, Cooperation and Security Between the Government of Republic of the Philippines and the Government of the United States of America”, which would have allowed the U.S. to retain its military bases in the Philippines for another ten (10) years.    

 

138.   However, the Philippine Senate, pursuant to the provisions of the 1987 Philippine Constitution, overwhelmingly rejected the 27 August 1991 Treaty, thereby ending the U.S. leasehold over all its military bases in the Philippines, including over Clark Air Base and Subic Naval Base.

 

          139.   Likewise prodded by the eruption of the Mt. Pinatubo in 1991, the U.S. Air Force completed its withdrawal or pull-out from Clark Air Base in November 1991, and the US Navy from Subic Naval Base in November 1992.

 

AFTER THE WITHDRAWAL BY US NAVY

AND AIR FORCE, TOXIC WASTES

WERE FOUND IN SUBIC AND CLARK

 

140.   Samples of these chemicals and substances have been found in studies conducted from 1994 to 2000, indicating their resistance to degradation, possible formation of more toxic chemicals and substances, persistence in the environment and the continued peril to the health and life of the inhabitants and residents in the surrounding areas.  It is significant to note that these studies were conducted by different independent groups based on the reported clustering of diseases and abnormalities, as well as documents released by the US Department of Defense and the US General Accounting Office.

 

          141.   One of these reports and studies came from an agency of the US Government itself – the U.S. General Accounting Office (GAO), the investigative arm of the U.S. Congress.

 

          142.   On 22 January 1992, the National Security and International Affairs Division of the US GAO submitted a report entitled “Military Bases Closure: U.S. Financial Obligations in the Philippines” (hereinafter referred to as the “22 January 1992 U.S. GAO Report”) to the following persons: (i) U.S. Senator Daniel K. Inouye and Senator Ted Stevens of the Senate SubCommittee on Defense; (ii) the U.S. Senate Committee on Appropriations; (iii) the U.S. Secretary of Defense; and (iv) the U.S. Secretary of State.

 

          143.   Said 22 January 1992 U.S. GAO Report stated in part:

“Although the services are not generally required to comply with U.S. standards at overseas locations, some service regulations indicate that they are intended to apply overseas. Environmental officers at both Clark and Subic Naval Facility have identified contaminated sites and facilities that would not be in complaince with U.S. environmental standards. Their identification of contamination is based on limited environmental surveys of Clark Air Base and the Subic Bay Naval Facility. No soil and water testing has been conducted in the contaminated areas, therefore, the extent of the damage is not known. According to one Air Force official, the testing alone would be very costly, and the cost of clean-up and restoration would be significantly greater. According to base officials, both Clark and Subic Bay Naval Facility have common environmental problems with underground storage tanks lack leak detection equipment, and fire-fighting facilities have no drainage systems. Instead, the fuel and chemicals used in fire-fighting exercises seep directly into the soil and water table, and at the Navy facility, the overflow goes directly into the Subic Bay.

 

     “The Subic Bay Naval Facility does not have a complate sanitary sewer system and treatment facility. Instead, sewage and process waste waters from the naval base and air station industrial complexes are discharged directly into Subic Bay. Only 25% of the 5 million gallons of sewage generated daily is treated.

 

     “Lead and other heavy metals from the ship repeiar facility’s sandblasting site drain directly into the bay or are buried in the landfill. Neither procedure complies with U.S. standards, which require that lead and heavy metals be handled and disposed of as hazardous waste.

 

     “The Subic Bay Naval Facility’s power plant contains unknown amounts of polychlorinated biphenyl (PCBs) and emits untreated pollutants directly into the air. No testing has been performed to analyze the content of emissions, but officials stated that air emissions would not meet U.S. clean air standards.”

 

Photocopy thereof is attached as ANNEX A.

 

 

 

          144.   The above information disclosed in the U.S. GAO Report were confirmed by separate reports, such as the following documents released in 1993 by the U.S. Department of Defense to the Philippine Government: (i) “Environmental Review of the Drawdown Activities at Clark Air Base, Republic of the Philippines” by Col. John J. Allen [September 1991]; (ii) “Potential Restoration Sites on Board the U.S. Facility, Subic Bay” [October 1992], which identified 28 potentially contaminated sites in Subic and 28 potentially contaminated training areas and ranges utilized by naval forces; and (ii) “Underground Storage Tank Inventory: Subic Bay, Philippines”.

 

145.   Based upon Department of Defense documents released by the United States to the Philippine Government, potential restoration sites were identified at both former bases.  Basing its assessment on a review of the documents, the Environmental and Health Impact report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines written by a team composed of Paul Bloom, Jorge Emmanuel, et. al. identified the known contaminated sites in Clark and Subic. 

 

146.   The known contaminated sites in Subic included the following: Public Works Center (Sanitary Landfill; Power Plant Building 1800; Fleet Mooring/sandblasting Yard); U.S. Naval Station (old dumpsite; Underground Storage Tanks (UST) Structure 1459 Navy Exchange Taxi Compound); Ship Repair Facility (Sandblasting facility and causeway; Foundry Shop Building 30); Naval Supply Depot (Tank Farm UST Structure 1758); Naval Magazine (Wood Preservation and Treatment Facility Building 2259); Cubi Point Naval Air Station (Fuel Farm; Fire Fighting  Training/Crash Crew Training Area Tank Structure 8061; Washrack Holding Tanks Structure Nos. 8415 and 8416; Cubi Power Plant); Other areas (DRMO yard); 12 potentially contaminated onsite areas and five off site areas.

 

147.   Based on an analysis of the operations performed at Subic, including reports of spills or improper practices during the last 15 years of the bases’ stay, the U.S. Navy identified sites believed to be potentially contaminated with hazardous waste.  Sites were classified into known contaminated site and potentially contaminated sites.  known contaminated sites are those where (a) a history of spills, dumping, or burying of toxic materials has been documented or reported; (b) remedial actions were admittedly inadequate or never conducted; and (c) the nature of the hazardous substances site conditions, and any visual observations indicate any existing toxic contamination problem.  Potentially contaminated sites are those that have a history of improper toxic waste management practices, high chemical use and storage, generation of large quantities of hazardous waste, or reported violations or non-conformance to hazardous materials management standards.

 

          148.   In early 1993, the World Health Organization (WHO) conducted interviews and site assessment of Subic Bay for environmental risk assessment and investigation program. On 9 May 1993, the WHO submitted its Mission Report with the following summary of findings:

 

a)     that landfills on site were used for dumping of all kinds of wastes, including toxic or hazardous waste materials;

b)     that industrial wastewaters, untreated sewage and polluted storm water drains were all directly discharged to Subic Bay, mostly without treatment;

c)      that very large volumes of fuel and oil were stored, transferred and used around the site.

d)     The Mission Report listed areas with considerable pollution potential, such as those which used or stored toxic chemicals, fuels, pesticides, herbicides, polychlorinated biphenyl (PCB), chlorinated solvents and explosives, as well as those which produced hazardous wastes, and those with heavy engineering operations and sandbasting;

e)      The Mission Report recommended further sampling and analysis programs of near-surface and deeper soils, groundwater and sediments in waterways and Subic Bay, costing around U.S.$600,000.00.

 

149.   On 13 August 1994, a US-based Team composed of Paul Bloom (PhD.), Alex Carlos (M.S.), Jorge Emmanuel (PhD.) and Theodore Schettler (M.D.) released a Report entitled “An Environmental and Health Impact Report on Known and Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines”.

 

150.   The report was based upon documents released by the Department of Defense identifying potential restoration sites.  It identified the potential restoration sites  to include the Mechanical Room Building 7509; Supply Storage Yard adjacent to the Defense Reutilization and Marketing Office (DRMO); Clark-Subic Pipeline; Philrock Products Compound Building 18; Asbestos Landfill.  The known contaminated sites in Subic included the following: Public Works Center (Sanitary Landfill; Power Plant Building 1800; Fleet Mooring/sandblasting Yard); U.S. Naval Station (old dumpsite; Underground Storage Tanks (UST) Structure 1459 Navy Exchange Taxi Compound); Ship Repair Facility (Sandblasting facility and causeway; Foundry Shop Building 30); Naval Supply Depot (Tank Farm UST Structure 1758); Naval Magazine (Wood Preservation and Treatment Facility Building 2259); Cubi Point Naval Air Station (Fuel Farm; Fire Fighting  Training/Crash Crew Training Area Tank Structure 8061; Washrack Holding Tanks Structure Nos. 8415 and 8416; Cubi Power Plant); Other areas (DRMO yard); 12 potentially contaminated onsite areas and five off site areas.

 

150.   A summary of the report’s findings pertinent to Subic Bay is reproduced hereunder:

 

A.      Public Works Center

 

Site

Sources

Contaminants

Clean Up Done

 1.      Sanitary Landfill  Dumping of asbestos in the following areas:

Area A-“considerable amounts” of double-bagged asbestos since 1982

Area B- four bags of asbestos                                     

Area C- unknown amounts of asbestos dumped in 1988

Area E- unknown amounts of asbestos dumped in 1979

 

Dumping of creosote-contaminated posts in Area D in 1983

Dumping of sandblasting grit and paint chips since 1983

Dumping of industrial wastes including electroplating wastes

 

 Asbestos, creosote; possibly organotins and other toxic metals from anti-fouling agents  and  paints; heavy metals from electroplating and other industrial operations; possibly oils, solvents, acids and bases from industrial wastes.

 

 

  

None

 

Notes: Asbestos fragments into microscopic mineral fibers which, when inhaled, are known to be a cause of fatal lung cancer and mesothelioma as well as asbestosis and pleural disease. Of these illnesses, mesothelioma may result from small exposures, after a latency period of 20-30 years. Ingestion of asbestos may also cause gastrointestinal cancer. Any digging or accidental disturbances of the soil resulting in the release of the asbestos fibers pose a health risk to workers and other populations downwind of the landfill. The aerodynamics properties of asbestos fibers result in the suspension, deposition, resuspension and transport of the toxic fibers to great distances.

 

          Creosote is heavy, flammable oily mixture consisting primarily of phenols and cresols, as well as cresols and other aromatic compounds including polynuclear aromatic hydrocarbons (PAHs). The complex phenols in creosote are insoluble or only slightly soluble in water. Cresols and creosols are slightly soluble, while phenol itself is soluble and highly mobile. One of two creeks cuts across the landfill, passing near Area D, hence the possibility of contamination of surface water. Creosote is ranked a probable human carcinogen, causing both cancer and mutations in laboratory animals. It is also listed as a hazardous air pollutant.

 

          Organotins are highly toxic to marine ecosystems, lethal at very low concentrations to certain fish and shellfish species. In water, they hydrolyze to inorganic tin which is much less toxic. Some organotins cause injury to the peripheral nervous system and to brain in humans. Some also cause alterations in the immune system.

 

          There are hundreds of solvents used in military bases and industrial operations. The most common organic solvents include halogenated hydrocarbons  such  as  methylene  chloride,  1,1,1 ,-trichloroethane, trichioroethylene and perchloroethylene; ketones such as methyl ethyl ketone and methyl isobuthyl ketone, aromatics such as toluene, aliphatic hydrocarbons such as hexane; alcohols such as methanol and isopropanol, and glycol ethers. Many of these solvents are volatile. Some, such as the chlorinated solvents, are resistant to degradation in soil and water and can contaminate groundwater; others, such as trichloroethylene,  decomepose  in soil to form more toxic chemicals. Human exposure pathways, therefore, include both inhalation and ingestion as well as skin absorption from direct contact. Health effects due to chronic exposure to solvents vary considerably depending on the solvent. Some solvents are irritants, others can damage the skin, liver, blood, central nervous system, lungs, and/or kidneys. Commonly used chlorinated solvents, such as benzene, trichloroethylene, perchloroethylene, and methylene chloride, are known to cause or are suspected of causing cancer. Some solvents, such as glycol ethers, have been found to cause birth defects in animals and infertility in men. Others are suspected of causing birth defects in humans. Some, at low exposure levels, cause subtle impairment of reaction time, psychomotor performance, and cognitive abilities. In certain cases, the exposure to more than one solvent can increase toxic effects due to a synergistic interaction; an example is exposure to both methyl ethyl and carbon tetrachloride.

 

 

Site

Sources

Contaminants

Clean Up Done

2.     Subic Power Plant Building 1800)  Reported spills due to overflows of fuel tanks and oil-water separators; reported spills during fuel transfer operations, use of PCB­contaminated equipment and temporary storage of PCBs, used oils, and solvents; photographic evidence of oil and solvent spills.  Petroleum hydrocarbons, solvents, and possibly PCBs.  Most, but not all, of spills were reportedly cleaned up; no documen-tation of the results of the clean-up activities.

 

 

Site

Sources

Contaminants

Clean Up Done

3.     Fleet Moor-ing/Sandblas-ting Yard Over 20 years of sandblasting opera-tions; sandblasting wastes used to backfill a section of the site  Heavy metals and chromates from sandblasting waste, solvents   None

 

Notes: Contaminants may have leached out into the nearby bay. Chromium in the form of chromates could be toxic to plants. Of the different states of chromium, chromium VI or hexavalent chromium is of greatest concern. Chromium VI is mobile in non-flooded soils and is toxic to aquatic life. However, it is readily transformed into the less toxic and less mobile chromium III in flooded soils and bottom sediments. Acute exposures to chromium VI may cause kidney disorders. Chromic, low-dose exposures cause dermatitis, damage to the respiratory tract, and lung cancer. It has been shown to damage genetic material and reproductive problems in laboratory animals.

 

B.                NAVAL STATION

 

Site

Sources

Contaminants

Clean Up Done

1.        Old Dump-site Dumping of industrial wastes, cans of paint and oils since the 1950s; areas where no plants and weeds can grow (an indicator of possible toxic contamination); photographic evidence on nonbiodegradable items (plastics and tires) coming out of the ground.  Heavy metals such as lead and chromates, petroleum hydrocarbons and possibly solvents  None

 

Notes: The old dumpsite is immediately adjacent to the OSIR basin. Groundwater is most probably very shallow and any toxic substances could be leaching out into the basin.

 

Although lead is slightly soluble in water, it is not very mobile especially at pH values near neutral and only somewhat mobile (still much less so than cadmium) in very acidic soils. However, lead contaminated soil particles may be carried into the basin through erosi6n and other processes. In general, exposures to lead may occur through ingestion of contaminated water, food, or soil, or by inhalation of lead particles or contaminated dusts. Lead accumulates in bone so that blood lead levels are a poor indicator of total body burden of the metal. In adults, moderate elevations of lead levels cause disorders of the nervous system (neuropathies), blood cells (anemia), kidneys (tubular damage), and reproductive system (infertility in men). Lead readily crosses the placenta, and low lead levels in pregnant women cause developmental effects in the fetus including impaired nervous system development, hearing and growth. Infants and children with only slight elevations in lead levels demonstrate IQ deficiencies. Overt mental retardation occurs at higher levels.

 

 

Site

Sources

Contaminants

Clean Up Done

2.                 Underground Storage Tanks (LIST) Structure No.1459, Navy Exchange Taxi Compound  Several reported spills of diesel fuel; underground storage tank suspected of leaking after the earthquakes in 1991; as of August and October 1992, area around the tank was still saturated with fuel Petroleum hydrocarbons and possibly solvents and metals.  Petroleum hydrocarbons and possibly solvents and metals.  None

 

Notes: There are apparently two 5,000-gallon underground storage tanks (USTs) installed 20 years ago at the site.

 

C.  Ship Repair Facility

 

The ship repair facility as a whole is an area of concern. The team of scientists was informed during a site visit that chlorinated solvents and non-chlorinated solvent such as toluene were used in many operations and dumped into the bay for many years until the 1980s. Generally heavier than seawater, chlorinated solvents would be of particular concern in the bay sediments. Bottom sediments are expected to be heavily contaminated with lead, tin, and other metals. The following are specific sites mentioned in the U.S. Department of Defense reports:

 

Site

Sources

Contaminants

Clean Up Done

1.     Sandblasting Facility and Causeway  Extensive sandblasting of organotin paints since the 1960s; disposal of organotin-contaminated wastewater into Subic Bay without treatment since 1986; area still saturated with organotin-contaminated waste; photographic evidence of blasting grit around the causeway area  Tributyl tin (TBT) oxide and other organotins; possibly lead, barium, chromates, and other paint-based contaminants; also fuel and solvents  Project to treat organotin-contami-nated wastewater was never implemented 

 

Notes: The team of scientists was told that chlorinated solvents (in particular, carbon tetrachloride and possibly trichloroethylene) were dumped into Subic Bay. Chlorinated solvents are more resistant to biodegradation than non-chlorinated hydrocarbons. They may form dense non-aqueous phase liquids in the groundwater or accumulate in the sediments in surface water. Carbon tetrachloride can percolate through the soil, contaminate groundwater and surface water, or contaminate air where it takes nearly 50 years to break down. Chronic exposures through inhalation or ingestion can affect the liver, kidneys, and nervous system; it is a possible human carcinogen.  Trichloroethylene, like carbon tetrachloride, can also contaminate the groundwater and bay, can affect the liver and nervous system, and has been found to cause liver and lung cancers as well as reproductive effects in animals. Tricloroethylene in the soil and groundwater can take years to degrade, forming vinyl chloride (a known human carcinogen) and vinylidene chloride (a suspected carcinogen) as by products.

 

Site

Sources

Contaminants

Clean Up Done

2.     Foundry Shop, Building 30  Explosion of PCB, capacitor containing 385,000 ppm PCBs. other PCB spills reported; tests in 1939 confirmed PCB contamination on all electrical control panels of the furnaces; photographic evidence of spills on the wooden flooring and panels; foundry shop was used for melting metals.  PCBs; possibly metals such as lead, cadmium, etc.  Not reported

 

Notes: PCBs (polychlorinated biphenyls) are a class of compounds that are known to be highly sorbed in soil and insoluble in water. Since PCBs are generally resistant to degradation, they are very persistent in the environment. Moreover, PCBs are bioconcentrated from soils or sediments by organisms and move up the food chain, thereby posing a health hazard. PCBs interfere with reproduction in wildlife and experimental animals. Children born to women who consume fish with elevated PCB content before and during pregnancy show decreased birth weight, reduced head circumference, and tend to deliver prematurely. Even at four years of age,  these  children show deficiencies in weight gain and decreased performance in some intellectual testing. PCBs have estrogenic activity, suppress the immune system in animals and humans, and induce liver enzymes.  Chronic exposures causes skin-disorders. PCBs promote tumors in experimental animals and may be carcinogenic in humans. Because PCBs are fat soluble, maternal milk represents a continual exposure pathway for nursing infants during critically important periods of development.

 

Because of foundry operations, contaminations with toxic metals such as lead and cadmium may also be possible. Cadmium metal tends to adhere to ash, dust, and soil particles and can be released into the atmosphere. Cadmium is relatively mobile. Dust particles containing cadmium can also be washed into storm drains and eventually reach the bay where it is sorbed in sediments from which it can enter the aquatic food chain. Cadmium can also be sorbed in clay particles in the soil where it is can be accumulated  by  vegetation.  Cadmium,  when  inhaled  at  high concentrations, has been associated with lung cancer, while at lower concentrations, chronic exposures may result in lung diseases. Moreover chronic exposures may also result in kidney and liver disorders, heart disease, anemia, brittle bones and immunological effects.

 

In addition to cadmium, other toxic metals include nickel, arsenic, mercury, chromium, selenium, beryllium, etc. Toxic effects due to long term exposures to toxic metals at low concentrations vary. Lead, methyl mercury, organotin, and arsenic affect the nervous system. Various metals, such as chromium, selenium, cadmium, nickel, and arsenic, damage the liver, kidney and skin. Lead, cadmium, chromium, selenium, nickel, and arsenic have been found to produce mutations in human and other cells in laboratory tests. Arsenic, beryllium, cadmium, chromium, and nickel dust are known to cause cancer.

 

D.                            Naval Supply Depot

 

Site

Sources

Contaminants

Clean Up Done

1.     Tank Farm, area around UST Structure No.1785 67,000 gallons of fuels spilled after Mt. Pinatubo eruption, of which only 1,800 gallons were recovered; fuel was seen coming out of the base of the tank; as of August and September 1992, fuel was still coming out of the tank  Petroleum hydrocarbon components of the fuel A trench was dug at the base of the tank from which fuel was collected; no corrective actions were taken. 

 

E.                            Naval Magazine

 

Site

Sources

Contaminants

Clean Up Done

1.     Wood Preservation and Treatment Facility, Building 2259  Toxic sludges from the pentachloro-phenol (PCP) dip tank were dumped into the ground from the I 960s until around 1984; approximately 55 gallons of toxic sludge were dumped annually.  Pentachlorophenol None

 

Notes: Pentachlorophenol or PCP is somewhat resistant to degradation and relatively insoluble in water. Chronic exposure to pentachlorophenol can lead to liver and kidney damage. It is a skin irritant and, at high concentrations, can also affect the lungs, blood, central nervous system, and gastro-intestinal system. Pentachlorophenol can be lethal by inhalation at high doses. Many commercial penthachlorophenol products have been found to be contaminated with dibenzodioxins and dibenzofurans which are also highly toxic and persistent in the environment. They are likely to be found wherever pentachlorophenol has been discarded. These compounds are known to cause reproductive and developmental abnormalities, altered immune system, and may be human carcinogens.

 

F.                             Cubi Point Naval Station

 

Site

Sources

Contaminants

Clean Up Done

1.     Fuel Farm Area Several reported spill incidents; fresh fuel oozed out of an excavation pit where more than 4,000 gallons were recovered; fuel still found at another excavation pit 100 feet away; as of October 1992, fuel was still being pumped out of the pit  AVGAS and JP5, according to laboratory analysis Area was monitored but no corrective action taken 

 

Notes: Aviation gasoline (AVGAS) and jet fuels (such as the U.S. Navy’s JP5) are light petroleum distillates. AVGAS is a blend of refined hydrocarbons derived from crude petroleum and natural gasoline, and synthetic hydrocarbons. JP5 is kerosene used for jet fuel; its components are mainly parrafins and napthenes in the Cl0 to Cl4 range, with aromatics comprising up to ,25 % of the fuel. Gasoline also contains a number of additives, including lead or substitute anti-knock compounds, antioxidants, metal deactivators, corrosion inhibitors, lubricants, and dyes. One additive found commonly at contaminated sites is ethylene dibromide, a known spermatotoxin and carcinogen.

 

Most petroleum contain varying amounts of aromatics, in particular, the BTEX compounds (benzene, touene, ethyl benzene, and xylenes). Toluene, ethyl benzene and xylenes share many of the same physical characteristics as benzene. Chronic exposures to these aromatics compounds could result in liver and kidney damage, and could affect fetal development in the case of pregnant women. The most toxic of the four is benzene which, when released from leaking underground storage tanks, percolates through the soil into the groundwater where it forms a light non-aqueous  phase  liquid.  While  it  can be  broken down by microorganisms in soil and aquatic sediments, benzene is a significant contaminant in groundwater where it is not easily degraded. Chronic exposures to benzene can result in aplastic anemia, bone marrow changes and other effects on the blood, and it has also been linked to chromosomal aberrations. Benzene, classified as a known human carcinogen, causes leukemia.

 

 

Site

Sources

Contaminants

Clean Up Done

2.     Firefighting Training Area/Crash Crew Training Tank Structure No. 8061  Weekend and bi-weekly training during which accumulated firefighting chemicals were drained into a creek and into the bay; cracks discovered in August 1992 allowed oils and firefighting chemicals to seep through the pavement and into the ground; some oils used for burning were possibly contaminated with PCBs; no vegetation grows within a 50-foot radius Solvents and oils, AFFF, heavy metals, possibly PCBs  Mock airplane removed; no corrective action taken 

 

Notes: Aqueous film forming foam or AFFF, used for aircraft crash fire control, is a low-viscosity, synthetic fluorochemical that forms air foams and a water solution film on the surface of flammable liquids. AFFF is a derivative of alkyl perfluoro-sulfonamide and may also contain a high molecular weight polymer to retard breakdown of its surface properties.

 

 

Site

Sources

Contaminants

Clean Up Done

3.     Washrack Holding Tanks, Structure No.8415 and 8416  Oil-water separator drains into creek and bay; holding tanks were found to contain toxic sludge in 1987; the waste sludge corroded the tools of a pump during attempts to pump waste out in 1989; inspectors had checked this operation three times for improper segregation and disposal of oil and water.  Sludge  analysis  showed  aromatic  hydrocarbons, methylene chloride, sodium chromate, phenols, 2-butoxyethanol, butyl ether, hexylene glycol and Stoddard solvent (a grade of petroleum distillates). Separator’ was apparently cleaned up in 1992 with the removal of accumulated sludge, but no other corrective action taken. 

 

 

Site

Sources

Contaminants

Clean Up Done

4.     Cubi Power Point  Reported spills and temporary storage of PCBs, used oils, and solvents  Petroleum hydrocarbons, solvents and possibly PCBs  Most, but not all, of spills were reportedly cleaned-up; no documentation of the results of the clean-up activities. 

 

G.    Other Areas

 

Site

Sources

Contaminants

Clean Up Done

1.     Defense Reutilization and Marketing Office (DRMO) Yard Reported spill incidents; hazardous waste was stored in an open yard exposed to the elements causing deterioration of hazardous waste containers; storage facility was cited for not conforming to standards  PCBs, acids, oil, solvents Clean-up Actions: None Cement slab remains where the DRMO building used to stand before it was destroyed by Mt. Pinatubo ashfall. DRMO Yard is in a flood plain and runoff drains directly into the adjacent bay. During a site visit, groundwater was measured (approximately 3 feet below ground surface) in open boreholes in the yard. It is probable that spill incidents especially in unpaved areas may have impacted the sandy soils and the shallow groundwater. 

 

 

151.   The Team’s Report recommended that actions be initiated to complete the assessment of toxic contamination and to clean-up the identified toxic sites.

 

152.   The Subic Bay Metropolitan Authority engaged the services of Woodward-Clyde to conduct an Environmental Baseline Study of the former base.

 

153.   The results of the study have been subjected to criticism because it is generally at variance with the admissions made in the U.S. GAO Report and speculations made regarding the extent of the toxic contamination, the study inter alia conceded certain points, to wit:

 

1.     A number of sites are in need of remediation.

2.     Subic and OSIR Basin landfill should be limited to open space use.  No intrusive activities such as excavation or pile drilling should be conducted without the approval of SBMA.  This is due to the evidence of hazardous waste particularly asbestos and metal/oil/fuel contaminated soils. 

3.     There is a probability of unexploded ordinance such as bombs, shells,

 

4.     There is a need for more detailed investigations and qualitative health risk assessments are recommended in a number of areas in the event that SBMA intends to use them for more sensitive land use. 

A copy thereof is attached hereto as ANNEX B.

 

          154.   The Philippine Senate Committees on Environment and Natural Resources, Health and Demography, and Foreign Relations conducted an investigation on the reported toxic waste contamination in Clark and Subic. On 16 May 2000, these Senate Committees released their report and findings on the matter, contained in Senate Committee Report No. 237.

 

155.   The pertinent portions of the aforesaid Committee Report No. 237 of the Philippine Senate are quoted hereunder for easy reference, to wit (emphasis supplied):

 

a)     “Based on the documents released by the U.S. Department of Defense, there is substantial environmental contamination in the former Subic Bay Naval Base and Clark Field Air Base;

 

b)     “It is evident from the documents released by the U.S. Department of Defense that the United States Government has knowledge of the existence and location of known and potential contaminated sites in the former Subic Bay Naval Base and Clark Field Air Base;

 

c)      “The hazardous activities, operations and improper waste management practices engaged in by the United States Government within the military bases under its effective control involved appreciable or foreseeable risk of causing environmental harm;

 

d)     “The United States Government is presumed to know or had the means of knowing that such hazardous activities, operations and improper waste management practices were carried out by the U.S. forces within the military bases over which it had effective control and unhampered access;

 

e)     “The environmental damage caused in Subic and Clark was substantial and had serious adverse ecological, human health and economic implications for the residents within the are and for the Philippines in general;

 

f)       “The hazardous activities, operations and improper waste management practices engaged in by the United States forces within the military bases caused the environmental damage;

 

g)     “The 1947 Military Bases Agreement, as amended, did not grant any license or authority to the United States to commit acts of tort by indiscriminately disposing of toxic and hazardous wastes as it pleases, destroy the environment and endanger the lives of Filipino citizens in exchange for non-removable buildings and structures;

 

h)    “Inasmuch as the activities conducted within the military bases and under the effective control of the U.S. caused substantial harm, the United States has the corresponding duty to repair and compensate for such damage; x x x

 

MEDICALLY KNOWN ADVERSE EFFECTS

ON HUMAN HEALTH AND LIFE OF THE

TOXIC CHEMICALS FOUND IN SUBIC AND ITS ENVIRONS

 

 

          156.   As shown hereunder, the medically known adverse effects of the toxic chemicals and substances found in Cabcom, Clark Air Base indubitably show or demonstrate that the numerous deaths and illnesses suffered by the victims are caused or directly attributable to said toxic chemicals or wastes.

 

157.   The aforecited studies also indicate the medically known adverse effects on human life and health of these toxic chemicals and substances found. 

 

PCBs (polychlorinated biphenyls), for instance, are known to interfere with reproduction; children born to women who ingest food with PCB content show decreased birth weight, reduced head circumference, and tend to deliver prematurely.  The children display deficiency in weight gain and decreased intellectual performance.  PCBs suppress the immune system and induce liver enzymes.  Chronic exposures cause skin disorders.  PCBs promote tumors in experimental animals and may be carcinogenic in humans.

 

Mercury is known to affect the nervous system and cause birth defects and neurological disorders.  Nitrates are known to cause central nervous system disorders, kidney disorders and cyanosis.

 

Asbestos fragments and fibers, when inhaled, are known to be a cause of lung cancer and mesothelioma as well as asbestosis and pleural disease. Ingestion of asbestos may also cause gastrointestinal cancer.

 

Solvents such as trichloroethylene, methylene chloride, methanol, and glycol ethers have been found to cause a variety of illnesses.  Among other ailments, these solvents are known to cause or are suspected of causing cancer, birth defects, infertility, impairment of cognitive and psychomotor performance, and damage to skin, liver, blood, central nervous system, lungs and/or kidneys.

 

Most petroleum contain various aromatics (benzene, touene, ethyl benzene and xylenes) which could result in liver and kidney damage, and could affect fetal development in pregnant women.  The most toxic compound is benzene, chronic exposure to which can result in aplastic anemia, bone marrow changes and other effects on the blood.  It has been linked to chromosomal aberrations and as a known carcinogen, causes leukemia.[1] 

 

Creosote is a mixture of many chemicals. Eating food or drinking water with high levels of creosote may cause burning in the mouth, and throat, stomach pains, severe skin irritation, convulsions, and kidney and liver problems.  It is the name used for a variety of products: wood creosote, coal tar creosote, coal tar, coal tar pitch, and coal tar pitch volatiles. These products are mixtures of many chemicals created by high-temperature treatment of beech and other woods, coal, or from the resin of the creosote bush.

 

Exposure to cadmium happens mostly in the workplace where cadmium products are made.   The general population is exposed from breathing cigarette smoke or eating cadmium contaminated foods.   Cadmium damages the lungs, can cause kidney disease, and may irritate the digestive tract. It does not corrode easily and has many uses in industry and consumer products primarily for batteries, pigments, metal coatings, and plastics.

 

Exposure to barium occurs mostly in the workplace or from drinking contaminated water.  Ingesting high levels of barium can cause problems with the heart, stomach, liver, kidneys, and other organs.

 

Pentachlorophenol is a manufactured chemical not found naturally in the environment. Pure pentachlorophenol occurs as a colorless crystal. The impure form is dark gray to brown dust, beads, or flakes. It has a sharp chemical odor when hot, but very little smell at room temperature.  It was used as a biocide and wood preservative. It was one of the most heavily used pesticides in the United States. Now, only certified applicators can purchase and use pentachlorophenol. It is still used in industry as a wood preservative for power line poles, railroad ties, cross arms, and fence posts.

 

Nickel is a hard, silvery-white metal used to make stainless steel and other metal alloys.  Skin effects are the most common effects in people who are sensitive to nickel. Workers who breathed very large amounts of nickel compounds have developed lung and nasal sinus cancers. Nickel compounds are also used for nickel plating, to color ceramics, to make some batteries, and as substances known as catalysts that increase the rate of chemical reactions. Nickel and its compounds have no characteristic odor or taste.

 

Exposure to chromium happens mostly from breathing workplace air, or ingesting water or food from soil near waste sites. Chromium can damage the lungs, and cause allergic responses in the skin. Chromium is a naturally occurring element found in rocks, soil, plants, animals, and in volcanic dust and gases.  Chromium has three main forms chromium(0), chromium(III), and chromium(VI). Chromium(III) compounds are stable and occur naturally, in the environment. Chromium(0) does not occur naturally and chromium (VI) occurs only rarely. Chromium compounds have no taste or odor.  Chromium(III) is an essential nutrient in our diet, but we need only a very small amount. Other forms of chromium are not

needed by our bodies.  Chromium is used for making steel and other alloys, bricks in furnaces, and dyes and pigments, and for chrome plating, leather tanning, and wood preserving.

 

Pure beryllium is a hard, grayish metal. In nature, beryllium can be found in compounds in mineral rocks, coal, soil, and volcanic dust. Beryllium compounds are commercially mined, and the beryllium purified for use in electrical parts, machine parts, ceramics, aircraft parts, nuclear weapons, and mirrors. 

 

Exposure to carbon tetrachloride results mostly from breathing air, drinking water, or coming in contact with soil that is contaminated with it. This is most likely to occur around hazardous waste sites or in the workplace. In people, exposure to very high amounts of tetrachloride can damage the liver, kidneys, and nervous system. It was used in the production of refrigeration fluid and propellants for aerosol cans, as a pesticide, as a cleaning fluid and degreasing agent, in fire extinguishers, and in spot removers. Because of its harmful effects, these uses are now banned and it is only used in some industrial applications.

 

Trichloroethylene is a colorless liquid which is used as a solvent for cleaning metal parts.  Drinking or breathing high levels of trichloroethylene may cause nervous system effects, liver and lung damage, abnormal heartbeat, coma, and possibly death. It is not thought to occur naturally in the environment. However, it is present in most underground water sources and many surface waters as a result of the manufacture, use, and disposal of the chemical.

 

Exposure to methylene chloride happens mostly from breathing air in the workplace where it is used. In people, direct skin contact causes intense burning and mild skin redness. It does not occur naturally in the environment. It’s made from methane gas or wood alcohol. It’s widely used as a solvent in paint strippers, as a propellant in aerosols, and as a process solvent in the manufacturing of drugs. It’s also used as a metal cleaning and finishing solvent. Most methylene chloride gets in the environment from its use in industry and from home use of aerosols and paint removers.

 

Exposure to Stoddard solvent occurs mainly in the workplace. People who breathe Stoddard solvent can experience headaches; dizziness; and eye, skin, or throat irritation. Stoddard solvent is a petroleum mixture that is also known as dry cleaning safety solvent, petroleum solvent, and varnoline; its registered trade names are Texsolve S® and Varsol 1®. It is a chemical mixture that is similar to white spirits.  It is used as a paint thinner; in some types of photocopier toners, printing inks, and adhesives; as a dry cleaning solvent; and as a general cleaner and degreaser.

 

Exposure to organotin results mostly from eating food and breathing air that contains tin. Breathing or swallowing large amounts of some compounds that contain tin may cause stomachaches, anemia, and liver and kidney problems. Tin metal, as well as inorganic and organic tin compounds, can be found in the air, water, and soil near places where they are naturally present in the rocks, or where they are mined, manufactured, or used.

 

 

158.   For purposes of clarity and easy reference, a summary of the medically known adverse effects on human health and life of the toxins/analytes found in Subic are outlined hereunder.

 

 

Toxicity & Carcinogenic Characteristics of the chemicals found in Subic according to the U.S. Department of Health and Human Services

 

 

Toxin/Analyte

 

 

Toxicity, Symptoms, Signs, Notes

 

Carcinogenic Characteristics

 

     
Asbestos Asbestos mainly affects the lungs. Changes in the membrane surrounding the lung are quite common in workers exposed toasbestos. These are also sometimes found in people living in areas with high levels of asbestos in the air, but effects on

breathing usually aren’t serious.

 

Breathing very high levels of asbestos may result in a slow buildup of scar-like tissue in the lungs and in the membrane that

surrounds the lungs. This disease is called asbestosis, and is usually found in asbestos workers and not in the general public.

People with asbestosis have shortness of breath, often along with a cough and sometimes heart enlargement. This is a serious

disease and can eventually lead to disability or death.

 

The Department of Health and Human Services (DHHS) has determined that asbestos is a known carcinogen. 

It is known that asbestos causes cancer in people. There are two types of cancer caused by exposure to high levels of

asbestos: cancer of the lung tissue itself and mesothelioma, a cancer of the membrane that surrounds the lung and other internal

organs. Both of these are usually fatal. These diseases don’t develop immediately, but show up only after many years.

 

Arsenic Inorganic arsenic is deadly.  Organic arsenic is less harmful.High levels of inorganic arsenic in food or water can be fatal.  A high level is 60 parts of arsenic per million parts of food or water (60 ppm).  Arsenic damages many tissues including nerves, stomach and intestines, and skin.  Breathing at high levels can give you a sore throat and irritated lungs.

Lower levels of exposure to inorganic arsenic may cause:

§         Nausea, vomiting, and diarrhea

§         Decreased production of red and white blood cells

§         Abnormal heart rhythm

§         Blood vessel damage

§         A pins and needles sensation in the hands and feet.

 

The Department of Health and Human Services has determined that arsenic is a known carcinogen.  Breathing inorganic arsenic increases the risk of lung cancer.  Ingesting the same increases the risk of skin cancer and tumors of the bladder, kidney and liver.
Beryllium Beryllium can be harmful if you breathe it. The effects depend on how much you are exposed to and for how long. 

High levels of beryllium in air cause lung damage and a disease that resembles pneumonia. If you stop breathing beryllium dust,

the lung damage may heal.

 

Some people become sensitive to beryllium. This is called a hypersensitivity or allergy. These individuals develop an inflammatory reaction to low levels of beryllium. This condition is called chronic beryllium disease, and can occur long after

exposure to small amounts of beryllium. This disease can make you feel weak and tired, and can cause difficulty in breathing.

 

Both the short-term, pneumonia-like disease and the chronic beryllium disease can cause death.

 

Swallowing beryllium has not been reported to cause effects in humans because very little beryllium can move from the stomach and intestines into the bloodstream.

 

Beryllium contact with scraped or cut skin can cause rashes or ulcers.

 

The Department of Health and Human Services (DHHS) has determined that beryllium and certain beryllium compounds mayreasonably be anticipated to be carcinogens. This determination is based on animal studies and studies in workers. None of the

studies provide conclusive evidence, but when taken as a whole, they indicate that long-term exposure to beryllium in the air

results in an increase in lung cancer.

 

 Chromium  All forms of chromium can be toxic at high levels, but chromium(VI) is more toxic than chromium(III).

 

Breathing very high levels of chromium(VI) in air can damage and irritate your nose, lungs, stomach, and intestines. People who are allergic to chromium may also have asthma attacks after breathing high levels of either chromium(VI) or (III).

 

Long term exposures to high or moderate levels of chromium(VI) cause damage to the nose (bleeding, itching, sores) and lungs, and can increase your risk of non-cancer lung diseases.

 

Ingesting very large amounts of chromium can cause stomach upsets and ulcers, convulsions, kidney and liver damage, and even

death.

 

Its effects on the reproductive system or the fetus are not known. However, mice that ingested large amounts of chromium had

reproductive problems and offspring with birth defects.

 

Skin contact with liquids or solids containing chromium(VI) may lead to skin ulcers. Some people have allergic reactions

including severe redness and swelling.

 

 The Department of Health and Human Services has determined that certain chromium(VI) compounds are known carcinogens.

This is based on increased lung cancer in some workers who were exposed to chromium. Animal studies also indicate

chromium(VI) is a carcinogen. We do not have enough data to determine if chromium(0) or chromium(III) are carcinogens.

 

 Creosote  Breathing vapors of the creosotes, coal tar, coal tar pitch, or coal tar pitch volatiles can cause irritation of the respiratory tract.

Eating large amounts of creosote (any form) may cause a burning in the mouth and throat and stomach pains. Eating large amounts of herbal remedies containing creosote bush leaves may cause liver damage, while large amounts of coal tar creosote may result in severe skin irritation, eye burns, convulsions, unconsciousness, and even death.

 

Long-term (365 days or longer) exposure to lower levels of coal tar creosote, coal tar, coal tar pitch, or coal tar pitch volatiles

by skin or air contact can cause skin damage such as blistering or peeling.

 

Animals fed large amounts of wood creosote had convulsions and died, while those fed lower levels had liver and kidney

problems. Animals studies have shown that when pregnant animals breathe creosote, it may cause harmful effects to the baby.

 

 Long-term exposure, especially direct contact with skin during wood treatment or manufacture of coal tar creosote-treated

products, to low levels of creosote has resulted in skin cancer and cancer of the scrotum. Cancer of the scrotum in chimney

sweeps has been associated with long-term skin exposure to soot and coal tar creosotes. Animal studies have also shown skin cancer from skin exposure to coal tar products.

 

The International Agency for Research on Cancer (IARC) has determined that coal tar creosote is probably carcinogenic

to humans. The EPA has also determined that coal tar creosote is a probable human carcinogen.

 

 Barium  The health effects of the different barium compounds depend on how well the compound dissolves in water. Barium compounds

that do not dissolve well in water are not generally harmful and are often used by doctors for medical purposes.

 

Those barium compounds that dissolve well in water may cause harmful health effects in people. Ingesting high levels of barium

compounds that dissolve well in water over the short term has resulted in

 

§         Difficulties in breathing

§         Increased blood pressure

§         Changes in heart rhythm

§         Stomach irritation

§         Brain swelling

§         Muscle weakness

§         Damage to the liver, kidney, heart, and spleen.

 

The effects of ingesting low levels of barium over the long term are not known. However, animal studies have found increased blood pressure and changes in the heart from ingesting barium over a long time.

 

 The Department of Health and Human Services, the International Agency for Research on Cancer, and the Environmental

Protection Agency (EPA) have not classified barium as to its human carcinogenicity.

 

Barium has not been classified because there are no studies in people and the two available animal studies were inadequate to

determine whether or not barium causes cancer.

 Carbon Tetrachloride  High exposure to carbon tetrachloride can cause liver, kidney, and central nervous system damage. These effects result from

either eating, drinking, or breathing it, and possibly from exposure to the skin. The liver is especially sensitive to carbon

tetrachloride because it swells and cells are damaged or destroyed. Kidneys are also damaged, causing a buildup of wastes in

the blood. If exposure is low and then stops, the liver and kidneys can repair the damaged cells and function normally again.

 

If exposure is very high, the nervous system, including the brain, is affected. People may feel intoxicated and experience

headaches, dizziness, sleepiness, and nausea and vomiting. These effects may subside if exposure is stopped, but in severe

cases, coma and even death can occur.

 

 The Department of Health and Human Services has determined that carbon tetrachloride may reasonably be anticipated to be a

carcinogen.

 

Animals that ingested carbon tetrachloride over a long time developed liver cancer. It is not known if breathing carbon

tetrachloride causes cancer in animals. It is also not known if breathing or ingesting it will cause cancer in people.

 

 Lead  Lead affects almost every organ and system in the human body.  The most susceptible to such is the central nervous system, especially in children.  It also damages the kidneys and the immune system.  The effects are the same whether it is breathed or ingested.

Exposure to lead is more dangerous for young and unborn children.  Unborn children can be exposed to lead through their mothers.  Harmful effects include premature births, smaller babies, decreased mental ability I the infant, learning difficulties, and reduced growth in children.  These effects are more common after exposure to high levels of lead.

In adults, lead may decrease reaction time, cause weakness in fingers, wrists or ankles, and possibly affect the memory.  Lead may cause anemia.  it can cause abortion and damage to the male reproductive system.

 

 The Department of Health and Human Services has determined that lead acetate and lead phosphate may be reasonably anticipated to be carcinogens based on studies in animals.
 Mercury  The nervous system is sensitive to all forms of mercury.  Methyl mercury and metal vapors are more harmful than other forms, because more mercury in these forms in these forms reaches the brain.  Exposure to high levels of metallic, inorganic, or organic mercury can permanently damage the brain, kidneys, and developing fetus.  Effects on brain functioning may result in irritability,shyness, tremors, changes in vision or hearing, and memory problems.

Short term exposure to high levels of metallic mercury vapors causes damage to the lungs, nausea, vomiting, diarrhea, increase in blood pressure or heart rate, skin rashes, and eye irritation.

 

 Mercuric chloride has caused increases in several types of tumor in rats and mice, while methyl mercury increased kidney tumors in male mice.  The US EPA has determined that mercuric chloride and methyl mercury are possible human carcinogens.
 Aldrin/Dieldrin  Aldrin and dieldrin are insecticides with similar structures. They are discussed together in this fact sheet because aldrin quickly

breaks down to dieldrin in the body and in the environment. Pure aldrin and dieldrin are white powders with a mild chemical

odor. The less pure commercial powders have a tan color. Aldrin and dieldrin do not occur naturally in the environment.

 

Aldrin and dieldrin mainly affect the central nervous system.

 

Accidental or intentional ingestion of high levels of aldrin and dieldrin result in convulsions and death. These levels are many

thousands of times higher than the average exposure.

 

Ingesting moderate levels of aldrin or dieldrin over a longer period may also cause convulsions. This occurs because aldrin

and dieldrin build up in our bodies.

 

We don’t know the effects of exposure to low levels of aldrin or dieldrin over a long time. Some workers who made or applied

the insecticides had nervous system effects with excitation leading to convulsions. Lesser effects in some workers included:

 

§         headaches

§         dizziness

§         vomiting

§         irritability

§         uncontrolled muscle movements.

 

Workers removed from the source of exposure rapidly recovered from most of these effects.

 

Studies in animals indicate that aldrin or dieldrin may reduce the body’s ability to resist infection.

 

 

 The International Agency for Research on Cancer has determined that aldrin and dieldrin are not classifiable as to their

carcinogenicity to humans. There is no direct evidence that aldrin or dieldrin causes cancer in humans. Studies on workers

generally show no increase in cancer or deaths due to cancer. Mice given high amounts of dieldrin, however, did develop liver

cancers.

 Methylene Chloride  Methylene chloride harms the human central nervous system.

 

High levels in the air (nearly 1,000 times average levels) may affect your ability to react fast, remain steady, or perform tasks that require precise hand movements. If you continue to breathe high levels, you may get:

 

§         dizziness

§         nausea

§         tingling

§         numbness in the fingers and toes.

 

In most cases, these effects will stop shortly after exposure ends. In animals, however, very high exposures have caused

unconsciousness and death.

 

Exposure to lower levels of methylene chloride in air can lead to slightly impaired hearing and vision. Many people can smell

methylene chloride at these lower levels. However, people differ in their ability to smell methylene chloride, so odors may not

help you avoid an unwanted exposure.

 

In humans, direct skin contact with methylene chloride causes intense burning and mild redness of the skin. Direct contact with

the eyes can burn the cornea. In animals that have been exposed to vapors or directly to methylene chloride, the cornea was

damaged. The damage healed within a few days after the exposure ended.

 

 The Department of Health and Human Services (DHHS) has determined that methylene chloride may reasonably be anticipated to be a carcinogen. Methylene chloride has not been shown to cause cancer in humans exposed to vapors in the workplace.

 

 Nickel  Lung effects, including chronic bronchitis and reduced lung function, have been observed in workers who breathed large

amounts of nickel. Current levels of nickel in workplace air are much lower than in the past, and today few workers show

symptoms of nickel exposure.

 

People who are not sensitive to it must eat very large amounts of nickel to show adverse health effects. Workers who accidently

drank water containing very high levels of nickel (100,000 times more than in normal drinking water) had stomachaches and

effects to their blood and kidneys.

 

Animal studies show that breathing high levels of nickel compounds may result in inflammation of the respiratory tract. Eating or

drinking large amounts of nickel has been reported to cause lung disease in dogs and rats and to affect the stomach, blood, liver,

kidneys, immune system, and reproduction and development in rats and mice.

 

 The Department of Health and Human Services (DHHS) has determined that nickel and certain nickel compounds may

reasonably be anticipated to be carcinogens. Cancers of the lung and nasal sinus have resulted when workers breathed dust

containing high levels of nickel compounds while working in nickel refineries or nickel processing plants.

 

When rats and mice breathed nickel compounds for a lifetime, nickel compounds that were hard to dissolve caused cancer,

while a soluble nickel compound did not cause cancer.

 

 Pentachlorophenol  Short-term exposures to large amounts of pentachlorophenol or long-term exposure to low levels can harm the liver, kidneys,

blood, lungs, nervous system, immune system, and gastrointestinal tract. Researchers have seen similar effects in animals.

Impurities in commercial pentachlorophenol may cause many, but not all, of its harmful effects. Direct contact with

pentachlorophenol can irritate the skin, eyes, and mouth, particularly when it is a hot vapor.

 

We do not know whether pentachlorophenol causes birth defects in people. It caused a decrease in the number of offspring

born to animals that were exposed to it while they were pregnant.

 

 The International Agency for Research on Cancer has determined that pentachlorophenol is possibly carcinogenic to humans.

This conclusion is based on animal studies that showed an increased risk of cancer, specifically in the livers and adrenal glands

of mice. There is no good evidence that pentachlorophenol can cause cancer in people.

 

 Stoddard Solvent  Exposure to Stoddard solvent in the air can affect your nervous system and cause dizziness, headaches, or a prolonged reaction

time. It can also cause eye, skin, or throat irritation.

 

Rats, cats, and dogs that breathed in large amounts of Stoddard solvent for several hours suffered seizures. Breathing

Stoddard solvent has caused bronchitis in guinea pigs.

 

 The International Agency for Research on Cancer (IARC) has determined that Stoddard solvent is not classifiable as to its

carcinogenicity to humans.

 

Very few studies have been located that study the carcinogenic effects of Stoddard solvent in humans or animals.

 Benzene   

Breathing very high levels of benzene, while high levels can cause drowsiness, dizziness, rapid heart rate, headaches, tremors, confusion and unconsciousness.  Eating or drinking foods containing high levels of benzene can cause vomiting, irritation of the stomach, dizziness, sleepiness, convulsions, rapid heart rate, and death.

The major effect of benzene from long term (365 days or longer) exposure is on the blood.  Benzene causes harmful effects on the bone marrow and cause a decrease in red blood cells leading to anemia.  It can also cause excessive bleeding and can affect the immune system, increasing the chance for infection.

Some women who breathed high levels of benzene for many months had irregular menstrual periods and a decrease in the size of their ovaries.  It is not known whether benzene exposure affects the developing fetus in pregnant women or fertility in men.  Animal studies have shown low birth weights, delayed bone formation, and marrow damage when pregnant animals breathed benzene.

 

  

The U.S. Department of Health and Human Services has determined that benzene is a known human carcinogen.  Long- term exposure to high levels of benzene in the air can cause leukemia, cancer of the blood forming organs.

 Toluene

 

 Toulene affects the brain.  Low-to-moderate levels from long term exposure can cause triedness, confusion, weakness, drunken type actions, memory loss, nausea, loss of appetite and hearing loss.

Inhaling a high levels of toulene for a short period causes light headedness, dizzyness, or sleepiness, unconsciousness and even death.

Repeated exposure to high levels can lead to permanent brain and speech damage, vision and hearing problems, loss of muscle control, and poor balance.  It can also cause memory loss and decreased mental ability.

Toulene also affects the kidneys.

Several studies have shown that unborn animals were harmed when their mothers breathed high levels of toulene.  Babies can have neurological problems and retarded growth and development if their mothers breath a high level of toulene during pregnancy.

 

 Not classifiable.
 Organotin  Breathing or swallowing organotin compounds can cause breathing problems and eye irritation, and can interfere with the way

your brain and nervous system work. In severe cases, it can cause death.

 

Some of the organotin compounds seemed to weaken rats’ ability to protect themselves from disease. These effects have not

been observed in people.

 

Rats and mice exposed to organotin compounds had problems with reproduction and with the development of normal babies.

We do not know if this would happen to people.

 The Department of Health and Human Services, the International Agency for Research on Cancer and the Environmental

Protection Agency (EPA) have not classified tin for carcinogenicity.

 Xylene  Short periods –

Headaches, lack of muscle coordination, dizziness, confusion, changes in one’s balance

High level exposure for short periods –

irritation of the skin, eyes, nose, and throat, difficulty in breathing

Very high levels of exposure –

Unconsciousness and death

Studies of unborn animals indicate that high concentrations of xylene may cause increased numbers of deaths, and delayed growth and development.  In many instances these same concentrations also cause damage to the mothers.

 

 Not classifiable
 Nitrate  Commonly found in munitions and explosives (dynamite is 60% nitrate), in certin plants and in well water.  It is well absorbed orally and metabolized by gastrointestinal bacteria to nitrites and eliminated in the kidney.  It is a common cause of methemoglobinemia.  Neural tube defects have been caused by high levels of nitrates in drinking water and spontaneous abortions may be associated with nitrate exposure.

 

 
 Trichloroethylene  Breathing large amounts of trichloroethylene may cause impaired heart function, coma, and death. Breathing it for long periods

may cause nerve, lung, kidney, and liver damage. Breathing small amounts for short periods of time may cause headaches, lung

irritation, dizziness, poor coordination, and difficulty concentrating.

 

Drinking large amounts of trichloroethylene may cause nausea, liver and kidney damage, convulsions, impaired heart function,

coma, or death.

 

Drinking small amounts of trichloroethylene for long periods may cause liver and kidney damage, nervous system effects,

impaired immune system function, and impaired fetal development in pregnant women, although the extent of some of these

effects is not yet clear.

 

Skin contact with trichloroethylene for short periods may cause skin rashes.

 

 Some studies with mice and rats have suggested that high levels of trichloroethylene may cause liver or lung cancer. Some studies of people exposed over long periods to high levels of trichloroethylene in drinking water or in workplace air have found

evidence of increased cancer. However, these results are inconclusive because the cancer could have been caused by other

chemicals.

 

 

 

 

159.   On 20 May 2000, the Subic Bay Metropolitan Authority closed twenty three (23) sites within the former Subic Naval Base from investors by reason of the fact that the same had been found to be contaminated by toxic wastes left behind by the United States Navy. Attached as ANNEX C is the Philippine Daily Inquirer newspaper report on the matter dated 21 May 2000.  

 

160.   On 03 July 2000, the Government Task Force on Hazardous Wastes on Former U.S. Military Bases revealed that the following sites in the former Subic Naval Base are contaminated with toxic and hazardous wastes: the Subic Landfill; the Osir Basin landfill; NEX Taxi Compound; Deltic Yard; DRMO; TWC Vehicle Maintenance Yard; Ship Repair Facility causeway; explosive ordnance disposal area; Cubi hospital incinerator and the firefighting training pit. Attached as Annex D is the 04 July 2000 newspaper report on the matter by the Philippine Star.

 

161.   The levels of the toxic chemicals found in Subic are above normal levels and the tolerable limits for human beings. 

 

162.   It is scientifically and medically proven that exposure to these  toxins have short and long term deleterious effects upon the health of human beings.

 

163.   Prolonged exposure to these toxins have caused illnesses to the plaintiffs and the deaths of the deceased victims, all of whom are residents of the communities adjoining or found along the river banks and the bay. 

 

164.   The toxins found within Subic and its environs are the proximate cause for the deaths and illnesses of the plaintiffs and the deceased victims.

 

165.   However, despite the lapse of many years, their cry for justice remains unheeded.

 

166.   Hence, on 20 July 2000, the plaintiffs through undersigned counsels served demand letters on the defendants demanding, among other things, the clean up of the affected areas and the payment of damages to the victims.  Attached hereto as ANNEXES E and F are the duly received copies of the demand letters.  

 

167.   However, despite the lapse of more than a month since the service of said demand letters, the defendants have by their silence refused to acknowledge plaintiffs’ problem and demands. 

 

168.   Hence, the filing of this Complaint. 

 

 

 

FIRST AND SECOND

CAUSES OF ACTION

(Liability of Defendants Departments of the United States Government for Wrongful Deaths)

 

 

          169.   The foregoing allegations are reproduced and repleaded herein by reference.

 

          170.   Under the 1947 Military Bases Agreement entered into between the governments of the Republic of the Philippines and the United States of America, the latter was accorded, among others, the following rights and obligations:

 

 

“Article III

DESCRIPTION OF RIGHTS

 

 

1.                 It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use operation and defense thereof of appropriate for the control thereof and all the rights, power and authority within the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them, or appropriate for their control.

 

2.                 Such rights, power and authority shall include, inter alia, the right, power and authority;

 

(a)               to construct (including dredging and filling), operate, maintain utilize, occupy garrison and control the bases:

 

(b)               to improve and deepen the harbors, channels, entrances and anchorages, and to construct or maintain necessary roads and bridges affording access to the bases;

 

(c)                to control (including the right to prohibit ) in so far as may be required for the efficient operation and safety of the bases, and within the limits of military necessity, anchorages, moorings, landings, takeoffs, movements and operation of ships and water borne craft, aircraft and other vehicles on water, in the air or on land comprising or in the vicinity of the basses;

 

(d)               the right to acquire, as may be agreed between the two Governments, such rights of way, and to construct thereon, as may be required for military purposes, wire and radio communications facilities, including submarine and subterranean cables, pipe lines and spur tracks from railroads to bases, and the right, as may be agreed upon between the two Governments to construct the necessary facilities;

 

(e)                to construct, install, maintain, and employ on any base any type of facilities, weapons, substance, device, vessels, or vehicle on or under the ground, in the air or on or under the water that may be requisite or appropriate, including meteorological system, aerial and water navigation lights, radio and radar apparatus and electronic devices, of any desired power, type of emission and frequency.

 

3.       In the exercise of the above-mentioned rights, power and authority, the United States agrees that the powers granted      to it will not be used unreasonably or, unless required by military necessity determined by the two Governments, so as to interfere with the necessary rights of navigation, aviation, communication, or land travel within the territories of the Philippines.  In the practical application outside the bases of the rights, power and authority granted in this Article there shall be as the occasion required, consultation between the two Governments.

 

x     x     x

 

 

Article VI

MANEUVER AND OTHER AREAS

 

 

The United States shall, subject to previous agreement with the Philippines, have the right to use land and coastal sea areas of appropriate size and location for periodic maneuvers, for additional staging areas, bombing and gunnery ranges, and for such intermediate, airfields as may be required for safe and efficient air operations.  Operations in such areas shall be carried on with due regard and safeguards for the public safety.

 

x    x    x

 

 

Article VIII

HEALTH MEASURES OUTSIDE BASES

 

 

          It is mutually agreed that the United States may construct, subject to agreement by the appropriate Philippine authorities, wells, water catchment areas or dams to insure an ample supply of water for all base operations and personnel.  The United States shall likewise have the right, in cooperation with the appropriate authorities of the Philippines, to take such steps as may be mutually agreed upon to be necessary to improve health and sanitation in areas contiguous to the bases, in cliding the right under such conditions as may be mutually agreed upon, to enter and inspect any privately owned property.  The United States shall pay just compensaton for any injury to persons or damage to property that may result from action taken in connection with this Article.

 

 

x   x   x

 

Article XXIII

CIVIL LIABILITY

 

          For the purpose of promoting and maintaining friendly relations by the prompt settlement of meritorious claims, the United States shall pay just and reasonable compensation, when accepted by claimants in full satisfaction and in final settlement, for claims, including claims of insured by excluding claims of subrogees, on account of damage to or loss destruction of private property, both real and personal, or personal injury or death of inhabitants of the Philippines, when such damage, loss, or individual members thereof including military or civilian employees thereof, or otherwise incident to non-combat activities of such forces; provided that no claim shall be considered unless presented within one year after the occurrence of the accident or incident out of which such claim arises “

 

 

171.   During the lifetime of the said agreement, the defendants Departments of Defense and the Navy of the government of the United States of America were under legal obligation to observe Philippine laws, then in force, on the protection of the environment, in accordance with Article 14 of the New Civil Code of the Philippines which states:

 

 

“ART. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations.”

 

 

          172.   Ostensibly, the Philippine laws on the protection of the environment deal with public safety.

 

          173.   Among the Philippine environmental laws which were obligatory upon the Departments of Defense and Navy of the United States government, while these were engaged in the operation of the  former military base at Subic Bay are the following:

 

a.                 Section 2 of Presidential Decree No. 1151 (The Philippine Environmental Policy);

 

b.                 Sections 8, 11, 19, 20, 42, 43, Presidential Decree No. 1152 (Philippine Environment Code);

 

c.                  Sections 3, 4, 8, 9, 10, 72, 85, 88 of Presidential Decree No. 856 (Code on Sanitation of the Philippines);

 

d.                 Section 4 of Presidential Decree No. 1586 (Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures And For Other Purposes);

 

e.                 Section 3 of Presidential Decree No. 1121 (Creating The National Environmental Protection Council);

 

f.                   Sections 4 and 6 of Presidential Decree No. 979 (Marine Pollution Decree);

 

g.                 Republic Act No. 8749  (Clean Air Act of 1999)

         

 

174.   Barely two (2) years after the pull-out of American personnel from the military base in Subic Bay in 1992, it was noticed that there was an alarmingly high incidence of illnesses particularly among residents living in and around rivers and tributaries flowing into and out of the former Subic Naval Base.

 

175.   Studies conducted in the same area about three (3) years later revealed high levels of concentration of toxic chemicals in scattered, unmarked and evidently non-dumpsite areas.

 

176.   The high levels of toxic chemicals thus discovered are directly attributable to activities undertaken by the Departments of Defense and Navy of the United States at Subic Naval Base.

 

177.   The presence of such high-levels of concentration of toxic chemicals in the aforesaid places patently manifest the willful disregard of Philippine environmental laws by the Departments of Defense and Navy of the United States of America.

 

178.   Otherwise stated, the scattering of high levels of toxic chemicals  within and around the former Subic Naval Base, places which are ostensibly not identified as dumpsites, is proof that Philippine environmental laws, particularly those dealing with proper and safe waste disposal, were willfully and recklessly disregarded by the Departments of Defense and Navy of the United States government.

 

          179.   Plaintiffs and deceased victims who resided in the communities near and along the tributaries and rivers found within and around the former Subic Naval Base, and its environs were unduly exposed to the aforesaid toxic chemicals.

 

          180.   The exposure of the Plaintiffs to toxic chemicals was due to the contact with contaminated soil and air as well as the ingestion of befouled water in the aforesaid places.

 

          181.   The very old and the very young, by reason of their weak constitutions, were most severely affected by such undue exposure to high levels of toxic and hazardous chemicals.

 

          182.   Such wanton disregard by the Departments of Defense and Navy of the United States of America of the aforestated Philippine environmental laws directly led to the untimely deaths of TWO (2) persons to date.

 

          183.   For directly causing the untimely deaths of the aforesaid, the defendants Departments of Defense and Navy of the United States of America are liable to the Plaintiffs for the amount of FIFTY THOUSAND PESOS (PHP 50,000) for each death, in accordance with the ruling of the Supreme Court in People v. Sazon (189 SCRA 900), or the total amount of ONE HUNDRED THOUSAND PESOS (PhP 100,000).

 

 

 

THIRD AND FOURTH

 CAUSES OF ACTION

(Liability of the Defendants Departments of the United States Government for Actual Damages Relative To Terminal Medical and Funeral Expenses of Deceased Victims)

 

 

          184.   The foregoing allegations are reproduced and repleaded herein by reference.

 

          185.   The deceased victims of exposure to high levels of toxic chemicals in Subic Base did not die quick deaths. Both received extended and costly medical support as well as prolonged hospitalization up to the time of their deaths.

 

          186.   On the other hand, funeral and related expenses were likewise incurred by the grieving Plaintiffs.

 

          187.   Due to their indigency, the Plaintiffs had to borrow from relatively wealthier friends and relatives for the aforesaid purposes.

 

          188.   To date, the total amount of TWO HUNDRED THOUSAND PESOS (PhP200,000) had been incurred, as actual medical, funeral and related expenses for the deceased victims of toxic chemical exposure at the former Subic Naval Base.

         

189.   In light of the foregoing, the Departments of Defense and Navy of the United States of America should be held liable to the Plaintiffs in the total amount of TWO HUNDRED THOUSAND PESOS (PhP200,000) as ACTUAL DAMAGES for the deceased victims.

         

 

 

FIFTH TO THIRTY SECOND

CAUSES OF ACTION

(Liability of the Defendants Departments of the Government of the United States for Actual Damages In Favor of Living But Ailing Victims)

 

         

          190.   The foregoing allegations are reproduced and repleaded herein by reference.

 

          191.   Apart from those who died, Thirty persons, herein Plaintiffs, living in communities along rivers and tributaries flowing into and out the former Subic Naval Base have fallen ill from exposure to high levels of toxic chemicals.

 

          192.   To date, said Plaintiffs are suffering, in varying degrees, from a myriad of illnesses directly attributable to exposure to high levels of toxic chemicals.

         

          193.   The ailing Plaintiffs require constant medical check-up, medication, hospitalization and financial support to alleviate their burgeoning illnesses.

 

          194.   To date, the aforesaid Plaintiffs have incurred the actual amount of  THREE MILLION TWO HUNDRED THOUSAND PESOS (PhP 3,200,000) for the above-stated purposes.

 

          195.   The Defendants Departments of Defense and Navy of the United States of America should be held liable for the total amount of THREE MILLION TWO HUNDRED THOUSAND PESOS (PhP 3,200,000) as ACTUAL DAMAGES in favor of the living but ailing Plaintiffs-victims of exposure to high levels of toxic wastes in the former Subic Naval Base.

 

 

 

THIRTY THIRD TO THIRTY FOURTH

  CAUSES OF ACTION

(Liability of Defendants Departments of the

Philippine Government for Wrongful Deaths)

 

 

196.   The foregoing paragraphs are repleaded by way of reference.

 

 

197.   Defendants Department of Health and Department of the Environment and Natural Resources and their agencies failed to observe their duties, as specifically enjoined by the Philippine Constitution and other aforestated Philippine environmental laws, in safeguarding the  environment even in the face of extensive military use by the United States. The said Departments of Government are likewise bound to ensure the rights of Filipinos to health and a balanced and healthful ecology.

 

          198.   Specifically, the Defendants Department of Health and Department of Natural Resources and Environment committed gross inexcusable negligence in failing to:

 

          (a)      Conduct regular and thorough inspections of United States facilities at Subic Base to make sure that toxic and hazardous wastes are properly disposed of and to ensure that Philippine environmental laws are observed thereat.

 

          (b)      Ensure that no toxic and hazardous wastes were left at Subic Bay before allowing the full evacuation or abandonment thereof by the United States Departments of Defense and Navy.

 

          (c)      Conduct a baseline study of the groundwater, soil and air at the former Subic Naval Base before allowing the use and settlement thereof. In this case, the Subic Bay Metropolitan Authority is equally negligent.

 

          (d)      Conduct a thorough examination and/or study of the extent of toxic contamination in the former Subic Naval Base after receiving notice of the existence thereof and the sudden rise in the number of victims of toxic waste contamination.

 

          (f)       Provide medical, financial and other forms of assistance to the victims despite widespread and repeated pleas therefor.

 

 

          199.   Furthermore, the Defendants SBMA, the DENR, DOH and the Office of the President of the Philippines are likewise liable for taking part in a concerted effort to conceal, belittle and ignore the exact nature and extent of the toxic contamination at Subic Bay. Such offices are likewise liable for unduly exposing the Plaintiffs, as workers and residents in the area, to toxic waste contamination, by permitting ingress, egress and transitory stay for them at Subic Base.

 

200.   At the time of the bases’ occupation by the U.S. Military, defendant Department of Health and its respective agencies and other organs failed to ensure that the U.S. Military had complied with Philippine requirements on waste disposal, National Water Drinking Standards and Sewage Collection and Disposal and other laws, rules and regulations affecting health standards. 

 

201.   At the time of the occupation of the bases by the U.S. military, defendant Department of the Environment and Natural Resources and its respective agencies failed to enforce and ensure compliance by the former of Philippine laws and regulations on the environment.  

 

202.   The defendants Departments of the Philippine government’s failure to perform their duties under the Constitution and pertinent Philippine laws as aforementioned as well as their  failure to enforce compliance of the same upon the U.S. Department of the Navy was one of the principal causes of the illnesses and deaths of the Plaintiffs. 

 

203.   For which reason, said defendants should be held liable for the sum of ONE HUNDRED THOUSAND PESOS (PhP 100,000.00) as ACTUAL DAMAGES for causing wrongful deaths.

         

 

 

THIRTY FIFTH TO THIRTY SIXTH

CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Actual Damages Relative To Terminal Medical and Funeral Expenses of Deceased Victims)

 

 

 

204.   The foregoing allegations are reproduced and repleaded herein by reference.

 

205.   The deceased victims of exposure to high levels of toxic chemicals in the environs of Subic did not die quick deaths. Both of them received extended and costly medical support as well as prolonged hospitalization up to the time of their deaths.

 

206.   On the other hand, funeral and related expenses were likewise incurred by the grieving Plaintiffs.

 

207.   Due to their indigency, the Plaintiffs had to borrow from relatively wealthier friends and relatives for the aforesaid purposes.

 

208.   To date, the total amount TWO HUNDRED THOUSAND PESOS (PhP 200,000) had been incurred as actual medical, funeral and related expenses for the deceased victims of toxic chemical exposure at Subic.

         

209.   In light of the foregoing, the Department of Health and the Department of  the Environment and Natural Resources should be held liable to the Plaintiffs in the total amount of TWO HUNDRED THOUSAND PESOS (PhP 200,000) as ACTUAL DAMAGES for the deceased victims.

 

 

 

THIRTY SEVENTH TO SIXTY NINTH

CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Actual Damages In Favor of Living But Ailing Victims)

 

 

210.   The foregoing allegations are reproduced and repleaded herein by reference.

 

211.   Apart from those who died, THIRTY TWO residents of surrounding communities in Subic have fallen ill due to exposure to high levels of toxic chemicals.

 

212.   To date, Plaintiffs, are suffering, in varying degrees, from a myriad of illnesses directly attributable to exposure to high levels of toxic chemicals.

         

213.   The ailing Plaintiffs require constant medical check-up, medication, hospitalization and financial support to alleviate their burgeoning illnesses.

 

214.   To date, the aforesaid Plaintiffs have incurred the actual amount of          THREE MILLION TWO HUNDRED THOUSAND PESOS (PhP 3,200,000) for the above-stated purposes.

 

215.   Defendants Department of Health and Department of the Environment and Natural Resources should be held liable for the total amount of THREE MILLION TWO HUNDRED THOUSAND PESOS (PhP 3,200,000) as ACTUAL DAMAGES in favor of the living but ailing Plaintiffs-victims of exposure to high levels of toxic wastes in Subic.

 

SEVENTIETH TO ONE HUNDRED FOURTH

CAUSES OF ACTION

(Liability of Defendants Departments of the United States Government for Moral Damages)

 

 

          216.   The foregoing allegations are repleaded by way of reference.

 

 

          217.   The untimely deaths of their loved ones, the lingering and worsening diseases which they contracted and their uncertain health conditions, all of which were directly brought about by the wanton and reckless conduct of the defendants Departments of the United States government, have caused and continue to cause untold suffering, mental anguish, fright and anxiety to the Plaintiffs.

 

          218.   Furthermore, the presence of toxic contaminants in their respective communities has besmirched the Plaintiffs’ individual reputations and caused them social humiliation.

 

          219.   By reason of the foregoing, the defendants Departments of Defense and Navy of the United States should be held liable to the Plaintiffs in the total amount of TWENTY FIVE BILLION DOLLARS (US $25 Billion) as Moral Damages.

 

 

 

ONE HUNDRED FIFTH TO ONE HUNDRED THIRTY NINTH

 CAUSES OF ACTION

(Liability of the Defendants Departments of the United States Government for Exemplary Damages)

 

 

          220.   The foregoing allegations are repleaded by reference.

 

 

          221.   As an example to the public good and to serve as deterrent against any foreign government agencies and instrumentalities similarly disposed to reckless conduct and to renege on their obligations to the community of nations relative to the preservation of the global environment and respect for the rights and domestic laws of host countries, the defendants Departments of Defense and Navy of the United States should be made to pay the Plaintiffs the total sum of TWENTY FIVE BILLION DOLLARS (US$ 25 Billion) as Moral Damages.

 

          222.   The liability of the said defendants for exemplary damages in the foregoing amount likewise rests upon the fact that their reckless conduct has wrought depradation upon the Philippine environment at Subic rendering the same useless and unfit for habitation for decades to come.

 

 

 

ONE HUNDRED FORTIETH TO ONE HUNDRED SEVENTY FOURTH CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Moral Damages)

 

 

          223.   The foregoing allegations are repleaded herein by reference.

 

 

          224.   For the social humiliation, mental anguish, anxiety and physical suffering which the Plaintiffs individually suffered when the defendants departments of their own Philippine government showed apathy and disregarded, as they continue to disregard and belittle their plight and pleas for medical support and financial assistance, the defendants Departments of the Philippine government should be held liable to the Plaintiffs in the total sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000) as Moral damages.

         

225.   The foregoing claim for an award for Moral damages against the aforesaid Defendants is likewise founded upon the reckless disregard of the said instrumentalities of government for the health and welfare of the Plaintiffs when they allowed them to relocate in an area where no previous testing against health and other hazards was conducted.

 

 

 

ONE HUNDRED SEVENTY FIFTH TO TWO HUNDRED NINTH CAUSES OF ACTION

(Liability of the Defendants Departments of the Philippine Government for Exemplary Damages)

 

 

          226.   The foregoing allegations are repleaded by reference.

 

 

          227.   Similarly, as an example for the public good and to discourage inaction and apathy on the part of the branches, agencies and intrumentalities of the Philippine government to the plight and welfare of the dying and ailing members of society as well as to encourage the said offices to act proactively, in preserving and guaranteeing the right of the people to health and to a healthy environment, the defendants Departments of the Philippine government should be held liable to the Plaintiffs in the total sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000) as Exemplary Damages.

 

 

TWO HUNDRED TENTH CAUSE OF ACTION

(Obligation of the Defendants Departments of the United States Government To Conduct A Clean-Up Of Subic Naval Base and its Environs)

 

 

 

          228.   The foregoing allegations are repleaded by reference.

 

 

          229.   For the duration of their stay in Philippine territory, the Defendants Departments of Defense and Air Force of the United States government were under an obligation to abide by the laws of the  Republic of the Philippines relative to the protection of the Philippine environment.

 

          230.   Said defendants likewise have a similar obligation to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction in accordance with the pronouncement of the International Tribunal in the Trail Smelter Case (United States v. Canada, 3 R.I.A.A. 1907 [1941]). and the decision of the International Court of Justice in the Corfu Channel case (UK v. Albania, 1949 I.C.J.). The same international legal principle is now enshrined in Principle 2 of the United Nations Convention  In The Rio Convention On Environment and Development (June 1992).

 

231.   The presence of high-levels of concentration of toxic chemicals in  and around Clark Field, in places clearly not identified as dumpsites, patently manifest the willful disregard of Philippine and international environmental laws by the Departments of Defense and Air Force of the United States of America.

 

232.   It is beyond cavil that a State has responsibility for an act or omission which results in a breach of a legal obligation founded upon a treaty, custom or other such unilateral acts (Ian Brownlie, Principles of Public International Law [ Fifth Ed., 1988, Oxford University Press, Inc., New York]) p. 435.).

 

233.   Necessarily, any State which violates a legal obligation under international law is under an equal obligation to make reparation.

 

234.   In a report on the Spanish Zone of Morocco Claims (Translation; French text, RIAA ii. 615 at 641), Judge Huber said:

 

 

“Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.”

 

 

235.   Similarly, in its judgment in the Chorzow Factory (Jurisdiction) case (1927), PCIJ, Ser. A, No. 9, p. 21), the Permanent Court of Justice stated thus:

 

“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefor is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”

 

 

236.   Focusing further on the issue of reparation, the Permanent Court of Justice declared:

 

 

“the essential principle contained in the actual notion of an illegal act…is that the reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if it is not possible, payment of a sum corresponding to the values which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law (Certain German Interests In Upper Silesia (F.R.G. v. Poland), 1928 P.C.I.J. (Ser. A) No. 17, p. 377).

 

 

237.   Lastly, in the Caire claim (1929) RIAA v. 516 at 529-31), Verzijl, the President of the Franco-Mexican Claims Commission stated thus:

 

 

“The State also bears an international responsibility for all acts committed by its officials or its organs which are delictual according to international law, regardless of whether the official organ has acted within the limits of his competency or has exceeded those limits…”

 

 

238.   Where the responsibility of a state is established, an obligation to make reparation arises. The injured state may require the other to:

 

(a)      Discontinue the act;

 

(b)      Apply national legal remedies;

 

(c)      Re-establish the situation existing before the act in question, or to the extent that this is impossible, pay corresponding compensation; and

 

(d)      Provide guarantees against repetition.

 

 

          239.   In light of the foregoing, the defendants Departments of the United States government should be directed to conduct a clean-up of their former military base area at Clark Field. Should they fail to do so, the Defendants should be made to pay the fixed sum of FIFTY BILLION DOLLARS (US$ 50 Billion) as compensation for depriving the Plaintiffs, and other Filipinos, the economic use of Clark Field and its environs.

 

 

 

ALLEGATIONS IN SUPPORT OF

THE PRAYER FOR THE ISSUANCE OF

A WRIT OF PRELIMINARY MANDATORY INJUNCTION

 

 

240.   In cases of extreme urgency, where petitioner’s right to the writ is clear; where considerations of relative inconvenience are strongly in his favor; where there appears to be a willful invasion of petitioner’s rights the injury inflicted upon him being a continuing one; and where the effect of the mandatory injunction would not be to create a new relation between the parties but solely to re-establish a pre-existing relation between them recently and arbitrarily interrupted by the respondent, the Courts should not hesitate in granting the writ of preliminary mandatory injunction (Lemma vs. Valencia, 7 SCRA 469).

 

241.   Concededly, a mandatory injunction is an extreme remedy and will be granted only upon a showing that (a) the invasion of the right is material and substantial, (b) the right of the complainant is clear and unmistakable, and (c) there is an urgent and paramount necessity for the writ to prevent serious damages (Batiste, et. al., vs. Barcelona, et. al., 100 Phil. 1078), and that a new relation between the parties will not be created (Alvaro, et. al.,  vs. Zapata, et. al., GR No. 50548, Nov. 25, 1982).

 

242.   In the instant case, it is respectfully submitted that the issuance of a writ of preliminary mandatory injuction is imperative.

 

243.   Specifically, the Plaintiffs respectfully pray for the issuance of a writ of preliminary mandatory injunction directing the defendants Departments of the Philippine Government to perform the following:

 

(a)               Immediately conduct new baseline study of the former Subic Naval Base to determine the present extent of toxic contamination thereat as well as the current cost of arresting and cleaning the same.

 

(b)              Immediately render medical and financial assistance to the victims of toxic waste contamination at the former Subic Naval Base and surrounding communities.

 

(c)               To officially declare the former Subic Naval Base as not suitable for human habitation and cause the immediate resettlement of persons still staying or living in the area as well as those in residing in settlements where toxic contamination has spread or infiltrated.

 

(d)              Compel the Philippine Government to seek immediate reparation from the United states government for the toxic waste contamination at the former Subic Naval Base.

 

(e)               Immediately conduct a clean-up of the former Subic Naval Base to rid it of toxic chemicals as well as to arrest the further spread, infiltration or leaching thereof.

 

 

          244.   It has been sufficiently established that the areas within the former Subic Naval Base are not suitable for human habitation due to the high levels of toxic chemicals found thereat.

 

245.   Despite the patent damage to human lives so far inflicted by such toxic chemicals in the area, the place continues to pose as a threat to the health of unsuspecting and trusting citizens who are bent upon settling or transiting the area for business or recreation.

 

246.   It is thus imperative for the government, in order to safeguard the lives of its people, to officially declare that the former Subic Naval Base as no longer suitable for human habitation.  This Declaration must remain in full force and effect until such time as the government had managed to clean and clear these areas from any contaminants that may prove to be harmful to humans.

 

          247.   There is a clear constitutional duty on the part of the government to undertake the foregoing task under Sections 15 and 16 of  Article II of the Constitution, to wit:

 

          “Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them”; and,

 

          Sec. 16. 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.”

 

 

248.   There is likewise an urgent need for the government to Immediately conduct new baseline study of the former Subic Naval Base to determine the present extent of toxic contamination thereat as well as the current cost of arresting and cleaning the same. Such is dictated by the fact that for a long period of time, there has been no serious, concerted and full-blown official effort to determine the exact extent, nature and progress of toxic contamination at Subic. Without such a baseline study, no effective measures to arrest the spread as well as to cause the cleaning of the area could be undertaken.

 

249.   Again, the duty of the Philippine government to undertake the foregoing, as well as the right of the citizens to demand such an action, is enshrined under Article II, Sections 15 and 16 of the Philippine Constitution.  

 

250.   Furthermore, the Philippine government, through the Department of Social Welfare and Development, is also tasked to “arrest the further deterioration of the socially disabling or dehumanizing conditions of the disadvantaged segment of the population at the community level” (Sec 2(a), Title XVI of the Administrative Code). 

 

          251.   Under Sec. 1 of  Chap. 1, Title IX of the Administrative Code (Health),  it is the declared policy of the State that it shall protect and promote the right to health of the people and instill health consciousness among them; adopt an integrated and comprehensive approach to health development, with priority for the underprivileged sick, elderly, disabled, women, and children; endeavor to make essential goods, health and other social services available to all the people at affordable cost; establish and maintain an effective food and drug regulatory system; and undertake appropriate health manpower development and research, responsive to the country’s health needs and problems.

 

          252.   For this undertaking, the Department of Health (DOH) was created and organized in order to carry out its  mandate under Sec. 2 of Title IX of the Administrative Code.  The said Section states that the Department shall be primarily responsible for the formulation, planning, implementation, and coordination of policies and programs in the field of health. The primary function of the Department is the promotion, protection, preservation or restoration of the health of the people through the provision and delivery of health services and through the regulation and encouragement of providers of health goods and services.

 

253.   It is clear that there is a right on the part of the people to expect that the government will provide them with the needed medical assistance and services in order to protect and preserve their health, and in case where such health had already been impaired, to provide for the means to nourish and restore them to  their once healthy selves.

 

          254.   The failure on the part of the government and the DOH to carry out their mandated duty under the aforecited provisions makes them liable.  Said failure to comply with their mandated duties under the laws of the Philippines also serves as fertile ground for the court to base any mandatory and/or prohibitive writs which it may decide to issue.

   

255.   The government is clearly duty bound to insure that proper medical attention is provided to the victims of the toxins left behind by the American Bases.  They should be able to enjoy, at the government’s expense, the best medical care which would ensure that their former health will be restored.  Medical experts should be sent to the affected areas with the most modern medical and technical equipment so that a thorough and more insightful medical examination of the residents of  Subic Bay may be conducted with the aim of curing those who have already succumbed to the deathly embrace of the toxins and contaminants from the former US Bases.  Free medicines should likewise be provided for these people.

 

256.   The former US Base areas are now unsuited for any form of human settlement because of the tremendous amount of toxins and contaminants dumped by the former possessors into its nearby waters, lands and air.

 

 257.  Under International Law, it only the State which can represent persons and air their grievances against another State before international tribunals.  It is thus imperative for the Philippine government as the duly constituted government of the Philippine State to take the cudgels for and in behalf of the Filipino People and to file the appropriate claims and charges against the US government for their unlawful and illegal acts of dumping toxic wastes in the surrounding area of their Bases which, in turn, caused damages and harm to the environment and to the people living within these areas.

 

258.   In this regard, it is the clear duty of the Philippines, through the Department of Foreign Affairs (DFA), to act immediately in making the US Government liable for the damages which it caused to the Philippine environment and to the thousands of Filipinos now suffering from deaths and illnesses of epidemic proportions.

 

259.   It is the mandated duty of the DFA, as stated in Title I of the Administrative Code, to represent the country in the conduct of its foreign relations.      

 

260.   Taking all these into consideration, one can see that there is a clear ground for an action to compel the Philippine government to act in consonance with the aforementioned matters.  The urgency had been shown.  The rights of the plaintiffs had been established and the duty of the Philippine government had been proved.  It is now up for this Honorable Court to perform its mandated judicial duty and compel the government through its respective agencies and departments to act accordingly.

 

261.   The question now is whether the courts have the power to compel the government to act through the issuance of a preliminary mandatory injunction.  There had been cases where this question had been answered in the affirmative.  One such case is the case of  Collector of Internal Revenue vs. Reyes and Court of Appeals (100 Phil. 822)

 

262.   In the said case, the Supreme Court held that a writ of injunction may issue restraining the Collector of Internal Revenue from proceeding with the collection, levy, distraint and/or sale of the taxpayer’s property. In still another case, the Court explained that while courts cannot compel an agency to do a particular act or to enjoin such act within it prerogative, there is an exception to this, which is, when the said agency acted in grave abuse of discretion or in excess of its jurisdiction ( Republic vs. Silerio, 272 SCRA 280).  This doctrine easily implies that courts can take cognizance of injunction cases against government agencies especially when these agencies are acting with grave abuse of discretion.  Still, another case in point is the case of Manila Prince Hotel vs. GSIS (267 SCRA 408) where the court granted the petitioners’ prayer for prohibition and mandamus against the GSIS, a government controlled corporation.

 

263.   The power to issue writs against the government and its agencies for their unlawful acts falls within the general power of judicial review.  The Constitution defines Judicial Power as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether  or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government” (2nd par., Sec. 1, Art. VIII).

 

264.   Encompassed within this power is the concomitant authority to restrain any act committed beyond the constitutional and statutory powers of a particular governmental agency, which is clearly in exercise of an abuse of discretion and for that matter, to compel the doing of an act in order to make sure that the government is performing its duties in protecting and safeguarding the people and the national heritage and territory of the country. 

 

          265.   In light of the foregoing, it is respectfully prayed that the writ of Preliminary Injunction prayed, in connection with the foregoing purposes, be immediately issued by the Honorable Court.

 

 

 

PRAYER

 

 

 

          WHEREFORE, foregoing premises considered, it is respectfully prayed that:

 

          1.       Upon the filing of the instant Complaint, a writ of Preliminary Injunction be issued directing the defendants Departments of the Philippine Government to:

 

(a)   Immediately conduct a new baseline study of the former Subic Naval Base to determine the present extent of toxic contamination thereat as well as the current cost of arresting and cleaning the same.

 

(b)  Immediately render medical and financial assistance to the victims of toxic waste contamination at the former Subic Naval Base.

 

(c)   To officially declare the former Subic Naval Base area as not suitable for human habitation and cause the immediate resettlement of persons still staying or living in and around the area as well as those residing in settlements where toxic contamination has spread or infiltrated.

 

(d)  Compel the Philippine Government to seek immediate reparation from the United states government for the toxic waste contamination at the former Subic Naval Base.

 

(e)   Immediately conduct a clean-up of the former Subic Naval Base to rid it of toxic chemicals as well as to arrest the further spread, infiltration or leaching thereof.

 

          2.       Judgment be rendered directing the defendants Department of Defense and Department of the Navy of the Government of the United States of America to pay the Plaintiffs the following:

 

 

(a)               The sum of THREE MILLION THREE HUNDRED THOUSAND DOLLARS (US$ 3,500,000.00) in ACTUAL DAMAGES;

 

(b)              The sum of TWENTY FIVE BILLION DOLLARS (US$ 25,000,000,000.00) in MORAL DAMAGES; and

 

(c)               The sum of TWENTY FIVE BILLION DOLLARS (US$ 25,000,000,000.00) in EXEMPLARY DAMAGES.

 

 

3.       Judgment be rendered directing the Defendants Departments of the Philippine Government to pay the Plaintiffs the following:

 

(a)               The sum of THREE MILLION FIVE HUNDRED THOUSAND PESOS (PhP 3,500,000.00) in ACTUAL DAMAGES;

 

(b)              The sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000.00) in MORAL DAMAGES; and

 

(c)               The sum of TWELVE BILLION FIVE HUNDRED MILLION PESOS (PhP 12,500,000,000.00) in EXEMPLARY DAMAGES.

 

4.       The Defendants Departments of the United States Government be directed to conduct a comprehensive clean-up of the former Subic Naval Base to rid it of toxic and other hazardous wastes as well as to arrest the further spread, infiltration or leaching thereof to surrounding areas and bodies of water.

 

Other remedies just and equitable are likewise prayed for.

 

18 August 2000, Pasig City for Olongapo City, Zambales.

 

 

PEÑA SANCHEZ LACSON

& MISON

Counsel for the Complainants

Suite 213, Parc Chateau Bdlg.

Onyx cor. Garnet Streets,

Ortigas Centre, Pasig City

 

By:

 

 

ALEXANDER L. LACSON

PTR No. 0233054, 02/11/00, Negros Occ.

 IBP No. 503367, 02/1/00, Negros Occ.

 

SIEGFRED B. MISON

PTR No. 1304367, 02/18/00, Quezon City

IBP No.  503368, 02/07/00, Quezon City

 

                                                          STEPHEN V. JAROMAY

                                                PTR No. 1304368, 02/18/00, Quezon City

                                                IBP No.  503366, 02/07/00, Manila City

 

 

 

                                                          DENNIS B. N. ACORDA

                                                PTR No. 148932, 02/17/00, Manila City

                                                IBP No.  503365, 02/07/00, Cagayan City         

 

 

 

FERDINAND C. BAYLON

                                                PTR No. 355397, 03/06/00, Quezon City

                                                IBP No.  494672, 01/07/00, Quezon City

 


[1] Discussion of the contaminants and their known or suspected effects on human health were quoted, summarized or paraphrased from the Environmental and Health Impact Report as well as the Forensic report submitted to the Commission on Human Rights.

 

 

The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2002

 

 

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