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Res. 27089-2021 Sala Constitucional · Sala Constitucional · 03/12/2021
OutcomeResultado
The Administrative Environmental Tribunal is ordered to issue the final act of file 177-13-03-TAA within a maximum of six months, under warning of disobedience and other criminal liabilities.Se ordena al Tribunal Ambiental Administrativo dictar el acto final del expediente 177-13-03-TAA en un plazo máximo de seis meses, bajo apercibimiento de incurrir en desobediencia y otras responsabilidades penales.
SummaryResumen
This amparo action, filed by a Limón resident against the National Groundwater, Irrigation, and Drainage Service (SENARA) and the Administrative Environmental Tribunal (TAA), alleges unjustified delay in resolving an environmental contamination complaint filed in 2013 against the Servicentro Costa Caribeños S.A. gas station. The Constitutional Chamber finds that administrative file 177-13-03-TAA, initiated over eight years ago, has not been definitively resolved. Despite ordering hydrogeological studies, precautionary measures, inter-institutional commissions, and multiple requirements to the accused company, SENARA reported that the hydrogeological study was never approved and the TAA has not issued a final decision. The Chamber reproaches the TAA's inaction, notes that environmental justice must be prompt and complete, grants the appeal, and orders the TAA to resolve the proceeding within a maximum of six months, without prejudice to any criminal liability that may arise.Este recurso de amparo, interpuesto por un vecino de Limón contra el Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) y el Tribunal Ambiental Administrativo (TAA), alega una dilación injustificada en la resolución de una denuncia por contaminación ambiental presentada en 2013 contra la gasolinera Servicentro Costa Caribeños S.A. La Sala Constitucional constata que el expediente administrativo 177-13-03-TAA, iniciado hace más de ocho años, no ha sido resuelto de manera definitiva. A pesar de haberse ordenado estudios hidrogeológicos, medidas cautelares, conformación de comisiones interinstitucionales y múltiples requerimientos a la empresa denunciada, el SENARA informó que el estudio hidrogeológico nunca fue avalado y el TAA no ha dictado el acto final. La Sala reprocha la inacción del TAA, señala que la justicia ambiental debe ser pronta y cumplida, y declara con lugar el recurso, ordenando al TAA resolver el procedimiento en un plazo máximo de seis meses, sin perjuicio de las responsabilidades penales que pudieran derivarse.
Key excerptExtracto clave
In view of the foregoing, the appeal must be granted, with the consequences stated below. The President of the Administrative Environmental Tribunal, or her legal substitute, is ordered to issue the final act corresponding to administrative file number 177-13-03-TAA within a period of SIX MONTHS from notification of this judgment, definitively resolving the environmental complaint that gave rise to it, under warning that failure to do so will constitute the crime of disobedience to authority, as defined in Article 204 of the Penal Code, without prejudice to any criminal liability that may arise for breach of duties. The State is ordered to pay the costs, damages, and losses caused by the facts underlying this declaration, to be liquidated in execution of judgment before the contentious-administrative jurisdiction.En mérito de lo expuesto, procede declarar con lugar el recurso, con las consecuencias que se dirán. Se ordena a la Presidenta del Tribunal Ambiental Administrativo, o a quien legalmente la sustituya, que dentro del plazo de SEIS MESES, contado a partir de la notificación de esta sentencia, proceda a dictar el acto final correspondiente al expediente administrativo número 177-13-03-TAA, resolviendo en definitiva la denuncia ambiental que le dio origen, bajo el apercibimiento de que, de no hacerlo, se incurrirá en el delito de desobediencia a la autoridad, tipificado en el artículo 204 del Código Penal, sin perjuicio de las responsabilidades penales que pudieran corresponder por el incumplimiento de deberes. Se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo.
Pull quotesCitas destacadas
"el presidente del Tribunal Ambiental Administrativo omitió rendir el informe solicitado de manera personal dentro del plazo conferido, de acuerdo con el artículo 45 de la Ley de la Jurisdicción Constitucional, se entra a resolver el recurso con base en los demás elementos que constan en el expediente."
"The President of the Administrative Environmental Tribunal failed to personally submit the requested report within the granted deadline; pursuant to Article 45 of the Constitutional Jurisdiction Law, the appeal is decided based on the other elements in the file."
Considerando I
"el presidente del Tribunal Ambiental Administrativo omitió rendir el informe solicitado de manera personal dentro del plazo conferido, de acuerdo con el artículo 45 de la Ley de la Jurisdicción Constitucional, se entra a resolver el recurso con base en los demás elementos que constan en el expediente."
Considerando I
"Es deber de los órganos que conforman la Administración Pública actuar con la debida celeridad para resolver, de manera definitiva, los procesos administrativos que se encuentren bajo su conocimiento, máxime cuando lo que se ventila es una denuncia por contaminación ambiental."
"It is the duty of the bodies that make up the Public Administration to act with due speed to definitively resolve administrative proceedings under their authority, especially when what is at stake is an environmental contamination complaint."
Considerando VIII
"Es deber de los órganos que conforman la Administración Pública actuar con la debida celeridad para resolver, de manera definitiva, los procesos administrativos que se encuentren bajo su conocimiento, máxime cuando lo que se ventila es una denuncia por contaminación ambiental."
Considerando VIII
"dentro de los procedimientos administrativos, no se puede permitir que transcurra un lapso absurdo sin que los asuntos sean resueltos en forma definitiva, pues la justicia tardía no es justicia."
"In administrative proceedings, an absurd lapse of time cannot be allowed without matters being definitively resolved, for delayed justice is not justice."
Considerando VIII
"dentro de los procedimientos administrativos, no se puede permitir que transcurra un lapso absurdo sin que los asuntos sean resueltos en forma definitiva, pues la justicia tardía no es justicia."
Considerando VIII
"se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo."
"The State is ordered to pay the costs, damages, and losses caused by the facts underlying this declaration, to be liquidated in execution of judgment before the contentious-administrative jurisdiction."
Por tanto
"se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo."
Por tanto
Full documentDocumento completo
SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at nine thirty hours on December third, two thousand twenty-one.
Recurso de amparo processed in expediente number 21-020437-0007-CO, filed by [Name 001], identity card [Value 001], against the SERVICIO NACIONAL DE AGUAS SUBTERRÁNEAS, RIEGO Y AVENAMIENTO (SENARA) and the TRIBUNAL AMBIENTAL ADMINISTRATIVO.
Whereas:
XXVI. [WHEREAS] by virtue of Resolution No. 861-14-TAA of October 15, 2014, the Ministry of Health, DGTCC, SINAC, and the AyA National Water Laboratory are requested for a second time to comply with Resolution No. 471-14-TAA. Likewise, the accused is ordered to comply with the requirements made by the corresponding entities (folios 456 to 460 of the file).
XXVII. [WHEREAS] on October 27, 2014, Official Letter No. AT-4953-2014 is received from the Water Directorate, reporting that: "in its role as coordinator of the Inter-institutional Commission, which it exercised until October a, 2014, the date on which Resolution No. 471-14-TAA was known (where the Ministry of Health is ordered to convene and coordinate the Technical Committee that will provide continuity to this case), it does not have a comprehensive analysis of the information generated on this case... because the concessionaire (the accused company) has not submitted the hydrogeological studies that generate information on the real situation of the case" (folio 520 of the file).
XXVIII. [WHEREAS] on November 7, 2014, Official Letter No. DGTCC-DL-096-2014 is filed, indicating that SENARA has pointed out that the accused has not submitted the hydrogeological study. Furthermore, "the result of the chemical analyses performed on the water from the observation and monitoring wells at the service station in question was reviewed by the Engineering Department of this Directorate through technical report number IF-DGTCC-15-09-2014, dated September 17, 2014, and the presence of hydrocarbons was confirmed above the reference values used in Article 21 of Executive Decree No. 33601-MINAE-S (…)
XXIX. [WHEREAS] on November 13, 2014, a written submission is received from the accused company, providing a fax number for receiving notifications and requesting that the presentation of the hydrogeological study be permitted before the Tribunal's ruling (folios 537 to 545 of the file).
XXX. [WHEREAS] on December 3, 2014, the Resolution of the Constitutional Chamber (Sala Constitucional) is received, dated 12:54 hours on December 1, 2014, requesting a report in relation to the amparo appeal filed by Mr. [Name 001] under constitutional file No. 14-018632-0007-CO; the report is issued via Official Letter No. 959-14-TAA, delivered to the Constitutional Chamber on December 8, 2014 (folios 624 to 718 of the file).
XXXI. [WHEREAS] by virtue of Resolution No. 1117-14-TAA of December 3, 2014, it is determined that, prior to responding to the submission from the accused company filed on November 13, 2014, said company is required to present to this Tribunal, with the approval (visto bueno) of SENARA, the studies requested by the latter through its Official Letter No. DIGH-UI-147-14. In addition, the following is required: -) From the Minister of Health, to activate the functioning of the Technical Committee of Executive Decree No. 37757-S, gathering the necessary information and taking the pertinent measures for the protection of the environment. -) From the Director of DGTCC, to provide a copy of technical report No. IF-DGTCC-15-09-2014 together with the analyses performed on August 20, 2014, as well as a copy of Resolution No. R-RGTCC-670-2014. -) From the Executive Director of SINAC, to comply with resolutions No. 471-14-TAA and 861-14-TAA (folios 719 to 721 of the file).
XXXII. [WHEREAS] on March 19, 2015, a written submission is received from the accused company, providing the hydrogeological study and results of chemical analysis, and requesting the dismissal of the complaint (folios 789 to 872 of the file).
XXXIII. [WHEREAS] on March 27, 2015, Resolution No. R-MINAE-DGTCC-301-2015 is filed, extending the precautionary measure ordered by R-DGTCG-670-2014 until May 31, 2015 (folios 928 to 929 verso of the file).
XXXIV. [WHEREAS] by virtue of Resolution No. 325-15-TAA of March 26, 2015, SENARA is required to indicate whether it grants its approval (visto bueno) to the hydrogeological study presented by the accused, as recorded at folio 791 and following of the file, along with any other pertinent information or input. Furthermore, the Ministry of Health is requested to coordinate with the institutions that make up the Technical Committee of Executive Decree No. 37757-S, to formulate its opinion on the hydrogeological study and to "indicate the corrective actions that must be implemented..." along with any other data or information of interest (folios 930 to 944 of the file).
XXXV. [WHEREAS] on April 14, 2015, Official Letter No. DPAH-UNSSAH-112-15 is received from the Ministry of Health, responding to Resolution No. 325-15-TAA, forwarding Official Letter No. DPAH-UNSSAH-111-2015. In this latter Official Letter, it is requested to clarify the hydrogeological study submitted, with the observations formulated by the Technical Committee. In addition, [the accused] must carry out four perforations with the characteristics indicated (for the purpose of determining whether contamination of the soil resource (recurso edáfico) exists), including piezometers in perforations 2, 3, and 4, and indicate the date or schedule for soil sampling, within a maximum period of thirty days. Likewise, each of the four sampling points must be georeferenced. Additionally, within three months, the "Laboratory report on the concentration of total hydrocarbons in water in said piezometers" must be submitted to the Ministry of Health. Said Official Letter is signed by Ing. Eugenio Androvetto Villalobos, Director of DPAH of the Ministry of Health, Ing. Ricardo Morales Vargas, Acting Chief of the DPAH Standardization Unit, and Ing. Agr. Adrián Rojas Mata of said Unit (folios 945 to 951 of the file).
XXXVI. [WHEREAS] by Resolution No. 414-15-TAA of April 16, 2015, Mr. [Name 001] is declared to have appeared as a party in the file and the complaint filed by said person against the DGTCC of MINAE is dismissed. Furthermore, the Director of DGTCC is requested to comply with Resolution No. 1117-14-TAA of December 3, 2014 (folios 719 to 721 of the file). To this effect, [the Director] must present to this Tribunal a certified copy of all available laboratory analysis results that have found traces of hydrocarbons or similar substances in the monitoring wells and observation wells, pertaining to the accused service station. In addition, [the Director] must present to this Office a copy of technical report No. IF-DGTCC-15-09-2014 together with the analyses performed on August 20, 2014, as well as a copy of Resolution No. R-DGTCC-670-2014. In any case, [the Director] shall add any other data or information of interest" (folios 952 to 970 of the file).
XXXVII. [WHEREAS] by means of Resolution No. 415-15-TAA of April 16, 2015, SENARA and DGTCC are requested to comply with Resolution No. 325-15-TAA. Furthermore, the Secretary General of SETENA is required to provide "a report on the following: -) File number and Resolution of environmental viability (viabilidad ambiental) for the Costa Caribeños Service Station located at the address indicated in the heading of this Resolution, (…). -) Content, scope, and limitations of the approval of the environmental impact assessment (evaluación de impacto ambiental). -) Detailed summary of the oversight, monitoring, audit, and environmental follow-up given to the project, especially regarding the alleged contamination of soil, subsoil, and water resources (groundwater and/or surface water) by hydrocarbons or similar substances. -) Current status of the project before SETENA. -) Any other data or information of interest" (folios 988 to 989 of the file).
XXXVIII. [WHEREAS] on May 14, 2015, Official Letter No. DGTCC-DL-168-2015 is received, through which the Director of DGTCC forwards the requested laboratory analyses. Also provided is Official Letter No. IF-DGTCC-15-09-2014 of September 17, 2014, regarding the Servicentro Costa Caribeños: "Inspection Report on the sampling of water present in the observation and monitoring wells, review of the results of the analyses performed by the 'LAMBDA' laboratory for the interested company" (folios 1023 to 1047 of the file). Said Official Letter is signed by DGTCC officials Ing. Álvaro Salas Picado and Ing. Óscar Andrés Acuña Díaz. Among other aspects, it states: "Water was copiously flowing from monitoring well 2 (M2)." In well M1, an average concentration of total hydrocarbons of 11.1 is found, and in well O5, a result of 41.4. It continues: (…)
XXXIX. [WHEREAS] on July 7, 2015, a written submission is received from the accused, alleging that it provides the following evidence: report on the current state of the pit (fosa), leak-tightness test of the tanks, manifest of delivery "of contaminated material to Cemex," and copy of the proceedings before the Environmental Comptrollership (Contraloría Ambiental) (folios 1083 to 1105 of the file). On July 17, 2011, the accused asserts that it presents proof of the proper destination of the 533.52 tons of material that the pit contained, which will be replaced shortly (folios 1106 to 1108).
XL. [WHEREAS] by virtue of Resolution No. 979-15-TAA of August 7, 2015, the following is required: -) From SETENA, for the third time, to comply with Resolutions No. 415-15-TAA and 555-15-TAA. -) From the accused, to report on compliance with the administrative acts of the Ministry of Health DPAH-UNSSAH-111-2015 and DPAH-UNSSAH-0198-15, as well as those of SENARA UI-127-15. -) From the Ministry of Health: "an updated report on the following:
XLI. [WHEREAS] on September 1, 2015, a submission is filed from the General Manager of SENARA, forwarding SENARA Official Letter No. UI-218-15 of August 31, 2015, stating that the accused has not submitted the observations indicated in Official Letter No. UI-127-15. Likewise, the service station is located in a zone of high hydrological vulnerability, according to the hydrogeological vulnerability study by AyA, published in La Gaceta No. 83 of May 2, 2007, adding that gasoline stations are classified as a type A activity (Decree No. 30465-S) and that, according to the use matrix, type A industrial activities are not permitted, and must carry out a detailed hydrogeological study (folios 1126 to 1127).
XLII. [WHEREAS] on September 10, 2015, Resolution No. DPAH-UNSSAH-317-2015 is received, whereby the perforations are relocated, the accused is required to communicate the soil sampling schedule, and guidelines for soil and water sampling are issued (folios 1137 to 1147 of the file).
XLIII. [WHEREAS] on September 4, 2015, a written submission is filed by the accused, providing documentation with which it alleges that it complies with Resolution No. 979-15-TAA and that it has demonstrated that the spill was entirely contained within the tank pit (fosa de tanques). It adds that in Ministry of Health Resolution No. DPAH-UNSSAH-317-2015, information is requested that is already included in the hydrogeological study. The laboratory tests from the external monitoring wells indicate total hydrocarbon results of less than 0.01 mg/L; the sand that contained the tanks has already been treated by CEMEX. It requests that this Tribunal require the competent body to provide an opinion on the case. It alleges that it provides as evidence: Expansion and correction of the hydrogeological study, a submission addressed to the Ministry of Health, Resolution No. DPAH-UNSSAH-317-2015, and two laboratory results (folios 1148 to 1150 of the file). Copies are attached that are asserted to correspond to the following documentation: (…)
XLIV. [WHEREAS] on September 4, 2015, Official Letter No. DPAH-UNSSAH-329-2015 is received from the Ministry of Health, dated September 4, 2015. It states that, by Official Letter No. DPAH-UNSSAH-196-2015, SENARA Official Letters No. UI-148-15 and UI-127-15 were forwarded to the accused, with the aspects to be reviewed in the hydrogeological study, given that "the study is visibly incomplete" (folio 1305). This in addition to what was indicated in Resolution No. DPAH-UNSSAH-111-2015. A period of ten days was granted to comply with what was required by SENARA, and fifteen days to comply with what was requested by the Ministry of Health. The company's submission of July 9, 2015, "does not contain the clarifications that were requested in Official Letter DPAH-UNSSAH-111-2015..." It goes on to argue that when the spill is contained within the tank pit, jurisdiction corresponds to DGTCC, whereas, in scenarios where the spill extends beyond, outside the tank pit "and the soil is contaminated" (folio 1308), jurisdiction falls to the Ministry of Health.
It adds that the members of the Technical Committee agreed not to issue any opinion or recommendations on specific cases until the functions of the committee are reviewed by virtue of the principle of legality. Furthermore, Official Letter No. DPAH-UNSSAH-329-2015 summarizes the content of Resolution No. DPAH-UNSSAH-317-2015 and adds: "Based on the foregoing, it is required to carry out soil sampling in order to identify the area contaminated with hydrocarbons outside the pit and the depth at which the contamination is found, as well as the concentrations of hydrocarbons in the soil. This is in order to determine whether it is necessary to implement a 'Remediation Plan' at the site, as it is still in the monitoring stage, for which Servicentro Costa Caribeños is required to carry out each of the activities described in Resolution DPAH-UNSSAH-317-2015 issued by this Directorate" (folios 1305 to 1313 of the file, the manual citation is located at folio 1312).
XLV. [WHEREAS] on September 23, 2015, a written submission is received from the accused company, asserting that it provides the "chemical analyses of water samples from the monitoring wells" carried out in compliance with Resolution No. DPAH-UNSSAH-317-2015, on September 8, 2015 (folios 1314 to 1325).
XLVI. [WHEREAS] on November 2, 2015, Official Letter No. DPAH-UNSSAH-371-2015 is filed from the Ministry of Health, forwarding Resolution No. DPAH-UNSSAH-372-2015, dated October 27, 2015. In it, the accused company is ordered to submit a progress report within thirty days, with the following information: -) Activities to be carried out to avoid the risk caused by the lack of cover on the top slab of the tank pits, regarding insect breeding grounds. -) Given that samples could not be taken from monitoring well P2, the well must be cleaned and conditioned, since rainbow-like colors were observed on the water surface at the bottom. "Furthermore, there is no evidence regarding the level of soil contamination with hydrocarbons that is located beneath the cement slab, near the wall of the pit where the presence of rainbow-like color was observed on the walls of the pit and on the water surface at the bottom thereof, located between the fuel storage tanks and the pit wall." -) The level of progress in complying with Resolution No. DPAH-UNSSAH-311-2015. -) It lists the components that the chemical analysis of the water sample taken from well P2 must contain, to determine if hydrocarbons exist in the soil. -) Carry out flammability tests in the monitoring wells located outside the tank pit.
This not only analyzes the risk of fire, but also whether hydrocarbons are present in the soil. -) Include ethylbenzene and polycyclic aromatic hydrocarbons in the water analysis. -) Include the actions indicated in Resolution No. DPAH-UNSSAH-317-2015 in the Monitoring Plan. -) Other guidelines (folios 1326 to 1339 of the file).
XLVII. [WHEREAS] on December 2, 2014, a copy is received of a submission from Mr. [Name 001] VÍÍQD, addressed to the Plenary Commission of SETENA, file 200-2001-SETENA, requesting full compliance with Resolution No. R-C-324-2014 of the Minister of MINAE (folios 1340 to 1342 of the file).
XLVIII. [WHEREAS] on December 9, 2015, Resolution No. R-MINAE-DGTCC-1699-2015 is received, in which the Director of DGTCC requests, for the purposes of processing the application for renewal of the operation permit and public service provision of the accused entity, that this Tribunal inform him of the status of file No. 177-13-03-TAA, as well as compliance with ruling (voto) of the Constitutional Chamber No. 2015-03170 (folio 1343).
XLIX. [WHEREAS] by means of Resolution No. 1529-15-TAA of December 10, 2015, the following reports are requested: -) From SENARA, to explain the degree of compliance with Official Letter No. UI-127-15 on the part of the accused. -) From the Ministry of Health, to provide an updated report on the execution of the administrative acts of the Ministry of Health by the accused company. In the event of non-compliance, detail the measures to be taken. Furthermore, it must issue an opinion on whether there are indications of contamination and whether the pertinent Remediation Plan has been requested. -) From SETENA, for the fourth time, it is requested to comply with Resolutions No. 415-15-TAA, 555-15-TAA, and 979-15-TAA. -) From the Director of DGTCC, it is required, for the second time, to provide an updated report on whether the leak-tightness of the station's tanks and pipes is guaranteed, and whether the allegedly contaminated soils from the tank slab were extracted and given the appropriate destination (folios 1344 and 1345 of the file).
L. [WHEREAS] on December 14, 2015, a written submission is filed by the appearing party, Mr. [Name 001], filing a new complaint against the Minister of MINAE, DGTCC, and SETENA (folios 1356 to 1370 of the file).
LI. [WHEREAS] on December 17, 2015, Official Letter No. DPAH-UNSSAH-446-2015 is received from the Ministry of Health, dated December 14, 2015, stating, among other aspects, that on November 30, the Monitoring Plan presented by the accused company was received, with a new professional in charge, and: "this Directorate will proceed to review it comprehensively and subsequently will forward the opinion to the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo), as well as the Resolution to the company Servicentro Costa Caribeños, S.A., via a sanitary order through the Rector Health Area of Limón (Área Rectora de Salud Limón)." It adds that the photographs contained in Resolution No. DPAH-UNSSAH-373-2015, taken during the inspection on September 8, 2015, are attached (folios 1371 to 1393 of the file, the cited text is located at folio 1382).
LII. [WHEREAS] on January 18, 2016, a written submission is received from the General Manager of SENARA, stating: "The accused company submitted, on September 7, 2015, an annex to the Hydrogeological Study; however, it did not fulfill all the requirements requested in Official Letter UI-127-15. For this reason, again through Official Letter DIGH-340-15 dated September 30, 2015, Official Letter UI-245-15 of September 30, 2015, is made known, by which it is requested to comply with all the terms of reference in order to issue the institutional opinion. However, despite the warning from my represented entity, the accused company has not complied, as of this date, with the warning contained in the attached Official Letter UI-245-15 (folio 1395 of the file). Emails are attached (folios 1396 and 1397), SENARA Official Letter No. DIGH-340-15, forwarding report UI-245-15 to the accused (folio 1398), and Official Letter No. UI-245-15, dated September 30, 2015, indicating information missing from the annex submitted by the accused to the hydrogeological study (folios 1399 to 1407 of the file).
LIII. [WHEREAS] on January 29, 2016, a written submission is filed by Mr. Álvaro Emilio Castro Garnier, indicating a new fax number for receiving notifications (folio 1408 of the file).
LIV. [WHEREAS] on February 4, 2016, a copy is received of Official Letter No. DPAH-UNSSAH-038-2016, dated February 2, 2016, addressed to the Acting Regional Director (Huetar Caribe Region) of the Ministry of Health, signed by Ministry of Health officials Ing. Eugenio Androvetto Villalobos, Director of Protection of the Human Environment (Protección al Ambiente Humano), Ing. Ricardo Morales Vargas, Acting Chief of the Standardization Unit of Health Services in the Human Environment, and Ing. Agr. Adrián Rojas Mata, of said Unit, indicating: "regarding what corresponds to your Directorate in charge and for the purposes of notifying the company Servicios Centro Costa Caribeños A.A., I attach report DPAH-UNSSAH-039-2016, corresponding to the hydrocarbon spill at the Service Station located in Limón, Pueblo Nuevo, Barrio La Colina, through which this Directorate recommends the lifting of the revocation of the Sanitary Operation Permit (Permiso Sanitario de Funcionamiento) and that the same be granted provisionally for 90 days counted from the notification of said Resolution to Servicentro Costa Caribeños.
At the same time, it is required that the Company Servi Centro Costa Caribeños S.A., add to the Monitoring Plan the request and justification for the rescheduling of the activities contained in Resolution DPAH-UNSSAH-372-2015. Likewise, that said Company indicate the calendar day, month, and year on which the activities will be executed by Servicentro Costa Caribeños S.A. and by the Company or Consultant hired for the execution of the Monitoring Plan, so that this Directorate, the Rector Health Area, or SENARA can schedule the respective inspection. Furthermore, in addition to the Monitoring Plan signed by the Legal Representative and the Responsible Professional, the Progress Report must be submitted to the Ministry of Health within the established deadlines, after the aforementioned Company receives notification of Resolution DPAH-UNSSAH-039-2016" (folios 1409 and 1410 of the file). Also attached is Ministry of Health report No. DPAH-UNSSAH-039-2016, dated February 2, 2016. Said report indicates, among other aspects, the following (folios 1411 to 1423 of the file):
LV. [WHEREAS] on February 12, 2016, a written submission is received from the accused, stating that a request for nullity of the notifications of SENARA Official Letters DIGH-340-15 and UI-245-15 was filed before SENARA; a copy of said filing is attached, with its receipt by SENARA on February 12, 2016 (folios 1424 to 1429 of the file).
LVI. [WHEREAS] on April 7, 2016, Official Letter No. AEL-040-2016 is filed by Mr. [Name 001], addressed to the Constitutional Chamber and to this Tribunal, alleging disobedience to the provisions ordered by the Constitutional Chamber in file No. 14-018632-0007-CO (folios 1430 and 1431 of the file).
LVII. [WHEREAS] by Resolution No. 376-16-TAA, the complaint filed by Mr. [Name 001] on December 14, 2015, is declared without merit. The foregoing is recorded from folio 1437 to 1468 of the instant file.
LVIII. [WHEREAS] by resolution number 377-16-TAA issued at ten hours fifty-one minutes on April twelfth, two thousand sixteen, this Office ordered the opening of an ordinary administrative procedure against Servicentro Costa Caribeños S.A., represented by Mr. Johnny Fung Acón, and against the latter in his personal capacity for potential joint and several liability. The foregoing is recorded from folio 1469 to 1520 of the administrative file.
LIX. [WHEREAS] on April twenty-ninth, two thousand sixteen, this Tribunal receives a written submission from Mr. Johnny Fung Acón, General Agent (Apoderado Generalísimo) of Servicentro Costa Caribeños S.A., through which he indicates that he is forwarding a copy of the corrections for the fulfillment of all the terms of reference for the hydrogeological study carried out at the Servicentro Costa Caribeños S.A. service station. The foregoing is recorded from folio 1521 to 1589 of the instant file.
LX. [WHEREAS] on May fifth, two thousand twenty-one, this Office receives a copy of official letter number DPAH-UNSSAH-188-2016 signed by Ing. Eugenio Androvetto Villalobos and Ing. Ricardo Morales Vargas, both in their capacity as officials of the Ministry of Health, through which they attach a copy of official letter DPAH-UNSSAH-189-2016 corresponding to the hydrocarbon spill at the Service Station located in Limón, Pueblo Nuevo, Barrio La Colina. The foregoing is recorded from folio 1590 to 1603 of the instant file.
LXI. [WHEREAS] on May sixteenth, two thousand sixteen, this Office receives a written submission of appearance and request as an interested third party, signed by Lic. Ricardo Azofeifa Castillo, Special Administrative Agent (Apoderado Especial Administrativo) of the National Bank of Costa Rica (Banco Nacional de Costa Rica). The foregoing is recorded from folio 1605 to 1607 of the administrative file, the original documents are located from folio 1609 to 1614 thereof.
LXII. [WHEREAS] a copy of official letter number SG-ASA-0151-2016, signed by Lic. Marco Arroyo Flores, Secretary General of SETENA, is recorded from folio 1618 to 1620 of the file, by which he provides the information required by resolution number 1529-15-TAA.
LXIII. [WHEREAS] on June twenty-fourth, two thousand sixteen, this Office receives a written submission from Mr. Johnny Fung Acón, General Agent of Servicentro Costa Caribeños S.A., through which he requests that the oral and public hearing scheduled for 09:00 hours on June 24, 2016, be rescheduled, on the grounds that he claims to be hospitalized. The foregoing is recorded at folios 1638 and 1639 of the file.
LXIV. [WHEREAS] on June twenty-fourth, two thousand sixteen, this Office receives official letter number DGTCC-DL-173-2018 signed by Lic. Alberto Bravo Mora, General Director of DGTCC, through which he responds to resolution number 377-16-TAA of ten hours fifty-one minutes on April twelfth, two thousand sixteen, and grants Special Administrative Power of Attorney to Mr. Cristian González Chacón. The foregoing is visible at folios 1642 and 1643 of the instant file.
LXV. [WHEREAS] LXVI. That the resolution number 757-16-TAA of ten thirty hours on June twenty-fourth, two thousand sixteen, is recorded at folios 1646 and 1647 of the case file, whereby the Record of the Oral and Public Hearing held on June twenty-fourth, two thousand sixteen, is corrected regarding the representation of Banco Improsa S.A.
LXVII. That notification certificates and resolution number 837-16-TAA of nine fourteen hours on July sixth, two thousand sixteen, are recorded from folio 1669 to 1687, whereby the oral and public hearing is rescheduled for 09:00 hours on September ninth, 2016.
LXVIII. That on July nineteenth, two thousand sixteen, a copy of official letter DPAH-UNSSAH-330-2016, signed by Eng. Eugenio Androvetto Villalobos and Eng. Ricardo Morales Vargas, both in their capacity as officials of the Ministry of Health, was received in this Office via fax, attaching a copy of official letter DPAH-UNSSAH-331-2016 concerning the hydrocarbon spill at the Service Station of the company Costa Caribeños SA. The foregoing is recorded from folio 1688 to 1704 of the file.
LXIX. That on August nineteenth, two thousand sixteen, a copy of official letter DPAH-UNSSAH-379-2016, signed by Eng. Eugenio Androvetto Villalobos and Eng. Ricardo Morales Vargas, both in their capacity as officials of the Ministry of Health, was received in this Office via fax, forwarding the second update to the Monitoring, Sampling, and Analysis Plan for Soils and Groundwater at the Service Station of the company Costa Caribeños SA. The foregoing is recorded from folio 1705 to 1711 of the file.
LXX. That a copy of official letter number DPAH-UNSSAH-403-2016, signed by Eng. Eugenio Androvetto Villalobos and Eng. Ricardo Morales Vargas, both in their capacity as officials of the Ministry of Health, is recorded at folio 1717 of the file, whereby they inform Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños SA., of the approval of the Monitoring, Sampling, and Soil Analysis Plan.
LXXI. That on September eighth, two thousand sixteen, a brief without an official letter number, signed by Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños S.A., was received in this Office, whereby he requests from this Office the Homologation of the Monitoring Plan proposed and endorsed by the Department for the Protection of the Human Environment (Dirección de Protección al Ambiente Humano). The foregoing is visible from folio 1718 to 1867 of the administrative file.
LXXII. That the Record of the Oral and Public Hearing held on September ninth, two thousand sixteen, is recorded from folio 1863 to 1870 of the file, establishing that its continuation will take place at 09:00 hours on December seventh, 2016.
LXXIII. That on September twenty-seventh, two thousand sixteen, a copy of official letter number DPAH-D-375-2016, signed by Eng. Eugenio Androvetto Villalobos and Eng. Ricardo Morales Vargas, both in their capacity as officials of the Ministry of Health, was received in this Office, referring to facts to be assessed for the hearing to be held on December seventh, 2016. The foregoing is visible from folio 1871 to 1874 of the administrative file.
LXXIV. That on November fourteenth, two thousand sixteen, a brief requesting an extension of the deadline to conciliate, signed by Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños S.A., was received in this Office. The foregoing is visible from folio 1875 to 2043 of the administrative file.
LXXV. That on November fifteenth, two thousand sixteen, a copy of official letter number DPAH-UNSSAH-484-2016, signed by Eng. Ricardo Morales Vargas, in his capacity as an official of the Ministry of Health, was received in this Office, attaching a copy of official letter number DPAH-UNSSAH-468-2016 regarding the follow-up on the proposed conciliation agreement. The foregoing is visible from folio 2044 to 2047 of the file.
LXXVI. That official letter number DM-9043-2016, signed by Dr. Fernando Llorca Castro, Minister of Health, is recorded at folio 2048 of the administrative file, whereby he reports on the endorsement that said ministerial portfolio grants to the request for a conciliation agreement proposed by Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños S.A.
LXXVII. That by resolution number 1604-16-TAA of fourteen fifty-one hours on November twenty-ninth, two thousand sixteen, this Office ordered the suspension of the continuation of the oral and public hearing scheduled for 09:00 hours on December seventh, 2016. The foregoing is visible from folio 2049 to 2072 of the file.
LXXVIII. That on December sixth, two thousand sixteen, a copy of official letter number DPAH-UNSSAH-505-2016, signed by Eng. Eugenio Androvetto Villalobos and Eng. Ricardo Morales Vargas, both in their capacity as officials of the Ministry of Health, was received in this Office, regarding the submission by Costa Caribeños S.A. of the Flammability Risk Action Plan. The foregoing runs from folio 2073 to 2074 of the case file.
LXXIX. That on December seventh, two thousand sixteen, a brief from Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños S.A., was received in this Office, indicating that he is providing the update letter for the Monitoring Plan corresponding to the Action Plan for the elimination of flammability risks. The foregoing is recorded from folio 2075 to 2090 of the case file.
LXXX. That on February fifteenth, two thousand seventeen, a brief from Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños S.A., was received in this Office, indicating that he is providing the first monitoring of gases and pumping in Well PX01 in accordance with the action plan for elimination of flammability risks, as well as the corrections and clarifications to the Hydrogeological Study requested by SENARA. The foregoing is visible from folio 2091 to 2190 of the administrative file.
LXXXI. That by resolution number 476-17-TAA of thirteen zero two hours on April seventeenth, two thousand seventeen, this Office agreed to inform Mr. [Name 001] of the Conciliation Plan proposed before this Office, so that if deemed necessary, he may present the observations he considers pertinent. The foregoing runs from folio 2200 to 2208 of the case file.
LXXXII. That on April nineteenth, two thousand seventeen, official letter number AEL-013-2017, signed by Mr. [Name 001], was received in this Office, whereby he expresses his rejection of the proposed conciliation plan and requests that an economic valuation of environmental damage be ordered. The foregoing is recorded from folio 2209 to 2214 of the case file.
LXXXIII. That official letter DGTCC-DL-64-2017, signed by Lic. Alberto Bravo Mora, Director General of the Dirección General de Transporte y Comercialización de Combustible (DGTCC), is recorded from folio 2215 to 2224 of the case file, whereby he rules on the proposed conciliation agreement.
LXXXIV. That on June nineteenth, two thousand seventeen, a brief from Mr. Johnny Fung Acón, General Attorney-in-Fact of Servicentro Costa Caribeños S.A., was received in this Office, indicating that he is providing the report from the company Futuris Consulting SA. concerning the second and third monitoring of gases and pumping in PX01 in order to fully comply with the Monitoring Plan and with the recommendation issued by the Ministry of Health. The foregoing is recorded from folio 2229 to 2261 of the case file.
LXXXV. That by resolution number 771-17-TAA of fifteen forty-four hours on May thirtieth, two thousand seventeen, this Office agreed as appropriate: “(...) To homologate the conciliatory proposal to approve the Monitoring Plan approved by the Ministry of Health... to summon the parties to the continuation of an oral and public hearing for 13:30 hours on July 7, 2017, maintaining as the sole imputed fact that of failing to present to this Court a hydrogeological study (under the terms of reference established by SENARA) bearing the approval of SENARA, in accordance with resolution number 377-16-TAA of ten fifty-one hours on April twelfth, two thousand sixteen. (...)" The foregoing is recorded from folio 2262 to 2333 of the case file.
LXXXVI. That on July twenty-seventh, two thousand seventeen, a brief was received from Licda. Lilliana Navarrete Porras, Special Judicial Attorney-in-Fact of Servicentro Costa Caribeños S.A., providing a copy of the receipt for the donation form of the container to the CCSS, Hospital Dr. Tom Facio Castro, in compliance with resolution number 771-11-TAA. The foregoing is visible at folios 2342 and 2343 of the case file.
LXXXVII. That the Record of the continuation of the Oral and Public Hearing held on July twenty-seventh, two thousand seventeen, is recorded from folio 2344 to 2348 of the case file.
LXXXVIII. That official letter number SENARA-DIGH-UI-0231-2017, signed by Ms. María Magdalena Monge and Roberto Ramírez Chavarría, both in their capacity as officials of SENARA, is recorded from folio 2349 to 2350 of the case file, whereby they express their position regarding the annex to the hydrogeological study submitted.
LXXXIX. That a brief from Ms. Lilliana Navarrete Porras, Special Judicial Attorney-in-Fact of Servicentro Costa Caribeños S.A., is recorded from folio 2351 to 2352 of the file, stating that SENARA has not notified her principal regarding compliance with the corrections and clarifications to the Hydrogeological Study submitted.
XC. That on August thirty-first, two thousand twenty-one, official letter number DGTCC-DL-2021-130, signed by Lic. Diego Sojo Obando, Director General of the DGTCC, was received in this Office, requesting information on the current status of the case file. The foregoing is recorded at folio 2353 to 2356 of the case file.
XCI. That on October twenty-first, two thousand twenty-one, an Amparo Appeal filed by Mr. [Name 001] against SENARA and this Court was received in this Office. The foregoing is recorded from folio 2357 to 2359 of the case file.
XCII. That by resolution number 1442-2021-TAA of ten o'clock on October twenty-fifth, two thousand twenty-one, folios 2360 to 2363, this Office deemed it pertinent to verify compliance with what was Homologated by resolution number 771-17-TAA of fifteen forty-four hours on May thirtieth, two thousand seventeen, and also agreed to the taking of evidence for better resolution (prueba para mejor resolver) and to request Geol. Roberto Ramírez Chavarría, Director of SENARA, to remit pertinent information regarding the case at hand. By virtue of the foregoing, this Court informs this Honorable Constitutional Chamber, and as recorded in the previously prepared summary, that this Office has carried out all pertinent steps to guarantee a timely solution to the reported facts; however, it is currently considered of utmost necessity, prior to issuing the final act of the ordinary administrative procedure, to take evidence for better resolution, consisting of requesting Geol.
Roberto Ramírez Chavarría, Director of SENARA, to remit pertinent information regarding the case at hand, in order to know, through technical information from the competent entity, whether the company Servicentro Costa Caribeños SA., legal ID 3-101-1139783, submitted the information requested via official letter SENARA-DIGH-UI-0231-2017, as well as whether the Hydrogeological Study has the endorsement of said representation, information that is transcendental for an adequate study and final decision to be made by this Judicature, respecting the rights of the administered parties and the due process governing this procedure. Therefore, once all the technical information has been fully analyzed, a resolution shall be issued in accordance with the law corresponding to the case at hand, and this Constitutional Chamber shall be informed immediately thereof.”
Nonetheless, clarifications were once again requested regarding the geological profiles, infiltration tests, the latest analyzed water samples, and the hydrogeological model, through official communication UI-236-16 of December 9, 2016, issued by the Hydric Research Unit. 14. By means of a note dated February 14, 2017, a response to official communication UI-236-16 was received from Mr. Johnny Fung Acón. 15. On May 30, 2017, through resolution No. 771-17-TAA, the Administrative Environmental Tribunal agreed to homologate the Conciliatory Proposal to approve the Monitoring Plan approved by the Ministry of Health through official communication DPAH-UNSSAH-403-2016, and indicates that the Ministry of Health must provide semi-annual follow-up to said plan. The parties are also summoned to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, to address the issue of Costa Caribeños' non-compliance, that is, presenting to the Administrative Environmental Tribunal a hydrogeological study (under the Terms of Reference established by SENARA), which must have, as an essential requirement, the approval of SENARA according to its legal powers. 16.
Once again, clarifications were requested regarding the information provided on February 14, 2017, through official communication SENARA-DIGH-UI-0231-2017 of August 4, 2017, a document issued by the Hydric Research Unit of SENARA. To date, no new annexes have been received from Costa Caribeños. 17. Subsequent to this date, SENARA has not received any notification or resolution from the Administrative Environmental Tribunal, nor has it received new documentation from Servicentro Costa Caribeños. 18. That on September 29, 2021, through official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Research and Hydric Management of SENARA, a response was given to the requests made by the undersigned appellant in official communications AEL-0093-2021 and MLV-053-2021, documents that appear in the case file. 19. That as mentioned in official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Research and Hydric Management of SENARA, the developer of the Servicentro Costa Caribeños project, specifically its legal representative, is responsible for complying with the submission of a hydrogeological study (under the terms of reference established by SENARA) that must have the approval of SENARA, given that to date it has still not met SENARA's requirements and therefore has also not complied with what was ordered by the Administrative Environmental Tribunal. 20.- Such refusal to inform and fully comply with what was ordered by SENARA within the framework of its powers constitutes a gross violation of the fundamental rights of thousands of people due to the contamination of the subsoil and the location of Servicentro Costa Caribeños. 21.- As the Ladies and Gentlemen Magistrates will be able to see, in the official communication Report of the General Management dated October 26, 2021, signed by Mrs.
Patricia Quirós Quirós, in her capacity as General Manager, it is acknowledged that after seven years the Administrative Environmental Tribunal has not deployed the legal resources at its disposal to fulfill its constitutional obligations in accordance with Article 50 of our Political Constitution. 22.- That lack of technical information contained in the Hydrogeological Study provided by Servicentro Costa Caribeños, which must exist in an administrative file for the effective protection of the environment in application of the Constitutive Law of SENARA, places in serious danger the health of hundreds, not to say thousands, of citizens, who are exposed day after day to hydrocarbons with a high potential for toxicity, to the detriment of the constitutional right to health, all in the absence and ineffectiveness of the duty of oversight by the Administrative Environmental Tribunal. 23 All of the above allegedly constitutes the offense classified as breach of duties and, therefore, a grievous omission of compliance with the Constitution and the laws, in damage of Constitutional Article 50, thus evidencing the lack of exercise of the authority and powers of stewardship, oversight, and control in matters of the provision of public services, and the consequent harm to the Constitutional Rights enshrined in Articles 41 and 50 of the Political Constitution, Article 11, subsection 2) of the Biodiversity Law No. 7788 and Principle 15 of the Rio Declaration, adopted at the United Nations Conference on Environment and Development, and the agreements the country has undertaken with its entry into the OECD, among others, due to harm to health, safety, and human life, as well as to the environment.
THEREFORE The inaction and lack of response and effective management by the Administrative Environmental Tribunal having been evidenced, I request that a ruling on the merits be issued, declaring the appeal admissible and ordering compliance under penalty of the crime of breach of duties.".\n7.- By a brief added to the digital case file at 5:38 p.m. on November 2, 2021, the appellant maintains that: "NEW evidence is submitted refuting the report of the Vice President of the Administrative Environmental Tribunal (TAA) according to official communication SENARA-DIGH-0146-2021 dated October 28, 2021, signed by Geologist Roberto Ramírez Chavarría, in his Capacity as Director of the Directorate of Research and Hydric Management of SENARA, addressed to the Administrative Environmental Tribunal indicating that: 'The Company Servicentro Costa Caribeños S.A., legal identification number 3-101-1139783, has not submitted the annexes of the requested information, through Official Communication SENARA-DIGH-UI-0231-2017 dated August 4, 2017, as the foregoing has not been fulfilled, the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento has not ENDORSED the Hydrogeological Study carried out by the cited company.' (End of textual quote) Esteemed Ladies and Gentlemen Magistrates: The undersigned, [Name 001], recognized in the case file as the appellant, with due respect, I appear to refute the report of the (sic) Vice President of the Administrative Environmental Tribunal (TAA) according to official communication No. 983-2021-TAA dated October 26, 2021, in the following terms: The right to a healthy environment is becoming more complex every day due to situations of risk and danger, arising from climate change as a natural process and human action in terms of the abusive exploitation of natural resources, generating impacts that violate and infringe upon environmental law.
Therefore, it is essential to deepen and reiterate the importance of the principles of prevention and precaution as an incentive in the system of access to justice, not only of particular interest, but collective for the common good. In correlation to these principles, the link with the violation of human rights resulting from the failure to guarantee and protect the right to a healthy environment is highlighted. AS TO THE FACTS OF THE APPEAL 1. In follow-up to a complaint for environmental contamination, SENARA issued the terms of reference that Servicentro Costa Caribeños had to comply with to prepare the hydrogeological study at the site. This occurred on May 23, 2014, through official communication DIGH-UI-147-14, sent to the Interinstitutional Commission of the case in question. Prior to this communication, on May 20, 2014, an inspection was carried out at the service station in question, and official communication DIGH-UI-149-14 was issued with the observations from the visit. 2.
On September 25, 2014, Mr. Johnny Fung Acón, legal representative of Servicentro Costa Caribeños, sent documents to prove to SENARA that there is no hydrocarbon contamination; however, the evidence presented shows high levels of hydrocarbons in observation and monitoring wells according to SENARA's observations. 3. On October 8, 2014, a note was received from Mr. Johnny Fung Acón, where he requested to reduce the number of piezometers to be installed at the station. He also provided a presentation made by geologist Emma Tristán, referring to a precautionary measure issued by the Directorate General of Transport and Commercialization of Fuels (DGTCC). 4. In official communication UI-294-14 of October 17, 2014, Mr. Johnny Fung Acón, representing Servicentro Costa Caribeños, is informed that evidence of hydrocarbons exists in the observation and monitoring wells of the fuel station, and that the proposal to reduce requirements is not viable and the analyses requested by SENARA in official communication DIGH-UI-147-14 must be carried out to evaluate the environmental conditions of the site. 5.
On October 22, 2014, SENARA scheduled the start of the requested drilling. However, it was not possible to proceed with the drilling machine, so SENARA rescheduled the start of this activity. By November 26, 2014, the drilling that forms part of the hydrogeological study requested by SENARA was initiated. 6. On January 15, 2015, SENARA supervised the taking of water samples at the 5 requested sites, jointly with the Ministry of Health, and the ocular inspection record No. HC-ARS-L-00209-2015 was issued. 7. On March 20, 2015, the Hydrogeological Study was received from Mr. Johnny Fung Acón, legal representative of Servicentro Costa Caribeños. The study was carried out by Mr. Eduardo Hernández, and regarding it, official communication UI-127-15 was prepared by SENARA on May 13, 2015, in charge of the Research Unit of SENARA, where the developer was requested to correct aspects of the study, such as geological profiles, the drilling information, clarification of provided hydraulic parameters, definition of the hydrogeological model, results of water samples, and review of vulnerability calculations. 8.
On September 7, 2015, an annex to the Hydrogeological Study was received from Mr. Johnny Fung Acón. Regarding it, it was indicated through official communication UI-245-15 on September 30, 2015, that aspects of the study still had not been corrected. 9. Through resolution No. 377-16-TAA of April 12, 2016, the Administrative Environmental Tribunal summoned all parties to an oral and public hearing on June 24, 2016, for each party to defend their thesis regarding the charges against Servicentro Costa Caribeños. However, this hearing was suspended and rescheduled for September 9, 2016, through resolution No. 837-16-TAA of July 6, 2016. 10. On April 29, 2016, another annex was received at SENARA from Costa Caribeños, and once again, through Official Communication UI-112-16 of June 22, 2016, the Research Unit of SENARA requested clarifications from the developer regarding the geological profiles, the infiltration tests performed, hydraulic parameters provided, results of hydrocarbon analyses that were not provided, and the hydrogeological model. 11.
On July 19, 2016, official communications DPAHUNSSAH-330-2016 and DPAH-UNSSAH-331-2016 were received, where the Ministry of Health approves the "First Update to the Monitoring, Sampling, and Analysis Plan for soils and groundwater," prepared by Alexander Goyenaga dated May 20, 2016, submitted by Emma Tristán Montero from Futuris Consulting S.A. 12. On August 18, 2016, the Ministry of Health partially approved the "Second Update to the Monitoring, Sampling, and Analysis Plan for soils and groundwater," through official communication DPAH-UNSSAH-379-2016. 13. SENARA became aware that the Ministry of Health, through official communication DPAH-UNSSAH-403-2016, approved a monitoring, sampling, and soil analysis plan for this project, and through notes of September 12, 2016, and November 10, 2016, Mr. Johnny Fung Acón provided the approved plans and requested homologation by SENARA. He also provided a response given by Futuris Consulting to official communication UI-245-15.
Nonetheless, clarifications were once again requested regarding the geological profiles, infiltration tests, the latest analyzed water samples, and the hydrogeological model, through official communication UI-236-16 of December 9, 2016, issued by the Hydric Research Unit. 14. By means of a note dated February 14, 2017, a response to official communication UI-236-16 was received from Mr. Johnny Fung Acón. 15. On May 30, 2017, through resolution No. 771-17-TAA, the Administrative Environmental Tribunal agreed to homologate the Conciliatory Proposal to approve the Monitoring Plan approved by the Ministry of Health through official communication DPAH-UNSSAH-403-2016, and indicates that the Ministry of Health must provide semi-annual follow-up to said plan. The parties are also summoned to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, to address the issue of Costa Caribeños' non-compliance, that is, presenting to the Administrative Environmental Tribunal a hydrogeological study (under the Terms of Reference established by SENARA), which must have, as an essential requirement, the approval of SENARA according to its legal powers. 16.
Once again, clarifications were requested regarding the information provided on February 14, 2017, through official communication SENARA DIGH-UI-0231-2017 of August 4, 2017, a document issued by the Hydric Research Unit of SENARA. To date, no new annexes have been received from Costa Caribeños. 17. Subsequent to this date, SENARA has not received any notification or resolution from the Administrative Environmental Tribunal, nor has it received new documentation from Servicentro Costa Caribeños. 18. That on September 29, 2021, through official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Research and Hydric Management of SENARA, a response was given to the requests made by the undersigned appellant in official communications AEL-0093-2021 and MLV-053-2021, documents that appear in the case file. 19. That as mentioned in official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Research and Hydric Management of SENARA, the developer of the Servicentro Costa Caribeños project, specifically its legal representative, is responsible for complying with the submission of a hydrogeological study (under the terms of reference established by SENARA) that must have the approval of SENARA, given that to date it has still not met SENARA's requirements and therefore has also not complied with what was ordered by the Administrative Environmental Tribunal. 20.- Such refusal to inform and fully comply with what was ordered by SENARA within the framework of its powers constitutes a gross violation of the fundamental rights of thousands of people due to the contamination of the subsoil and the location of Servicentro Costa Caribeños. 21.- As the Ladies and Gentlemen Magistrates will be able to see, in the official communication Report of the General Management dated October 26, 2021, signed by Mrs.
Patricia Quirós Quirós, in her capacity as General Manager, it is acknowledged that after seven years the Administrative Environmental Tribunal has not deployed the legal resources at its disposal to fulfill its constitutional obligations in accordance with Article 50 of our Political Constitution. 22.- That lack of technical information contained in the Hydrogeological Study provided by Servicentro Costa Caribeños, which must exist in an administrative file for the effective protection of the environment in application of the Constitutive Law of SENARA, places in serious danger the health of hundreds, not to say thousands, of citizens, who are exposed day after day to hydrocarbons with a high potential for toxicity, to the detriment of the constitutional right to health, all in the absence and ineffectiveness of the duty of oversight by the Administrative Environmental Tribunal. 23 All of the above allegedly constitutes the offense classified as breach of duties and, therefore, a grievous omission of compliance with the Constitution and the laws, in damage of Constitutional Article 50, thus evidencing the lack of exercise of the authority and powers of stewardship, oversight, and control in matters of the provision of public services, and the consequent harm to the Constitutional Rights enshrined in Articles 41 and 50 of the Political Constitution, Article 11, subsection 2) of the Biodiversity Law No. 7788 and Principle 15 of the Rio Declaration, adopted at the United Nations Conference on Environment and Development, and the agreements the country has undertaken with its entry into the OECD, among others, due to harm to health, safety, and human life, as well as to the environment.
THEREFORE The inaction and lack of response and effective management by the Administrative Environmental Tribunal having been evidenced, I request that a ruling on the merits be issued, declaring the appeal admissible and ordering compliance under penalty of the crime of breach of duties.".\n8.- By a certificate signed on November 22, 2021, by the secretary and the judicial technician 3, both of the Constitutional Chamber, it was indicated that it did not appear that, from October 22 to November 21, 2021, the president of the Administrative Environmental Tribunal had submitted any document, for the purposes of rendering the report required by this Tribunal.\n9.- In the proceedings followed, the legal prescriptions have been observed.\n\nDrafted by Magistrate Rueda Leal; and,\n\nConsidering:\n\nI.- PRELIMINARY MATTER. Even though Ana María de Montserrat Gómez de la Fuente Quiñonez appeared in this process in her capacity as vice-president of the Administrative Environmental Tribunal, it is no less true that in the resolution processing this appeal, the president of the TAA was warned that the report required by this Constitutional Chamber had to be rendered personally.
Furthermore, the Chamber does not fail to note that the case file reveals no justification whatsoever concerning the reason why the report was not rendered by the person holding the presidency of the Administrative Environmental Tribunal.\nRegarding this issue, the Chamber, in judgment No. 03484-98 at 4:51 p.m. on May 27, 1998, resolved:\n"I. Preliminary matter. The report rendered by Eduardo Acuña Castro on behalf of the respondent Municipal Executive of Pococí is not admitted, as it is improper. In the first place, it should be noted that – by virtue of the responsibility deriving from the report, which is deemed given under oath – it is not admissible to render it other than personally (Articles 43, 55, and 45 of the Law of Constitutional Jurisdiction). Secondly, the cited official lacks legal competence to delegate a power that is his own, according to the cited law. Consequently, it is deemed not submitted, and the Chamber proceeds to resolve the matter without further processing and solely based on the evidence appearing in the case file."\nConsequently, as the president of the Administrative Environmental Tribunal omitted to render the requested report personally within the granted timeframe, according to Article 45 of the Law of Constitutional Jurisdiction, the appeal is decided based on the other elements contained in the case file.\nII.- ON THE EXCEPTION OF ARTICLE 41 OF THE POLITICAL CONSTITUTION.
One of the aspects indicated could constitute a violation of the right to prompt and complete administrative justice. In this regard, it must be clarified that, since vote number 2008002545 at 8:55 a.m. on February 22, 2008, this Chamber has referred to the contentious-administrative jurisdiction — with some exceptions — those matters in which it is disputed whether the public authority has complied or not with the deadlines set by the General Law of Public Administration (Articles 261 and 325) or sectoral laws for special administrative procedures, in order to resolve by final act an administrative proceeding — initiated ex officio or at the request of a party — or to hear admissible administrative appeals. Precisely, this appeal raises a case of exception because the sub examine concerns an environmental complaint that has allegedly not been resolved. By virtue of the foregoing, the Chamber will proceed to resolve the appeal.\nIII.- SUBJECT OF THE APPEAL.
The appellant alleges that, since 2013, complaints were filed for environmental contamination problems generated by Servicentro Costa Caribeños S. A., which persist to this day. He clarifies that one of those complaints refers to administrative file No. 177-13-03-TAA processed before the Administrative Environmental Tribunal. He indicates that in the aforementioned file, it is recorded that, on March 20, 2015, SENARA received a partial hydrogeological study related to the mentioned service station; however, said agency ordered the correction of some aspects, which was repeated in 2016 and 2017. He maintains that, by resolution No. 771-17-TAA of May 30, 2017, the Administrative Environmental Tribunal homologated the conciliatory proposal to approve the monitoring plan endorsed by the Ministry of Health. He comments that the TAA convened an oral and public hearing for July 27, 2017, to analyze the non-compliance by Servicio Costa Caribeños for failing to provide the required hydrogeological study, in accordance with the terms of reference established by SENARA.
He states that, after the date on which the aforementioned conciliatory proposal was homologated, SENARA has not received any notification or resolution from the TAA, nor any documentation from the referenced service station. He maintains that over eight years have passed since the complaints for environmental contamination produced by Servicentro Costa Caribeños S. A. were filed, without the respondent authorities having definitively resolved the situation. He requests that the appeal be granted and that the Administrative Environmental Tribunal be ordered to demand that the legal representative of Servicentro Costa Caribeños S. A. fully comply with the studies required by SENARA.\nIV.- PROVEN FACTS. Of importance for the decision of this matter, the following facts are deemed duly demonstrated, either because they have been thus accredited or because the respondent authority has omitted to refer to them, as provided in the initial order:\na) On June 7, 2013, a complaint was filed against Servicentro Costa Caribeños S. A. before the TAA, to which case file No. 177-13-03-TAA was assigned, alleging that "there were failures that could have caused soil contamination." (See documentary evidence).\nb) By resolution No. 609-13-TAA at 9:25 a.m. on July 22, 2013, the Administrative Environmental Tribunal ordered the respondent party to allow inspections and analyses by the competent institutions.
Additionally, an interinstitutional commission was created composed of SENARA, the Water Directorate, the Instituto Costarricense de Acueductos y Alcantarillados (ICAA), the Ministry of Health, and the Directorate of Environmental Quality Management (DIGECA). (See documentary evidence).\nc) On August 28, 2013, an official from the ICAA requested a six-month extension before the TAA, in order to issue the technical studies required by resolution No. 609-13-TAA at 9:25 a.m. on July 22, 2013, which are necessary to determine whether or not there is contamination in the aquifers of the area. (See documentary evidence).\nd) On September 12, 2021, the Directorate General of Transport and Commercialization of Fuel (DGTCC) issued official communication DGTCC-0384-2013, through which it indicated that an inspection was carried out at Servicentro Costa Caribeños S. A. and it was verified that the containers were operating correctly, and that no non-compliance was observed at such service station that compromised its safe operation.
Additionally, it was indicated that during the rainy season, flooding occurs affecting the establishment. Consequently, it was requested that the competent entities rule on the possible impacts that could be generated. Likewise, it was stated that the representatives of the respondent party provided a chemical analysis indicating there was no hydrocarbon contamination. (See documentary evidence).\ne) On September 17, 2013, the Water Directorate reported that the interinstitutional commission had been formed since September 5, 2013, which requested that what was indicated in resolution No. 609-13-TAA at 9:25 a.m. on July 22, 2013, issued by the Administrative Environmental Tribunal, be postponed until the writ of amparo processed in file 13-006391-0007-CO was resolved, or, in case the commission continued functioning, that SETENA and the DGTCC be included. (See documentary evidence).\nf) On October 3, 2013, the Ministry of Health provided a copy of brief DGS-3732-13 signed by the Director General of Health in response to what was required in resolution No. 609-13-TAA at 9:25 a.m. on July 22, 2013.
(See documentary evidence).\ng) Through resolution No. 238-14-TAA at 2:03 p.m. on March 12, 2014, the Administrative Environmental Tribunal indicated that the filing of a writ of amparo does not prevent public bodies from exercising their competence, and therefore ordered the submission of the report previously required in pronouncement No. 609-13-TAA at 9:25 a.m. on July 22, 2013. Likewise, it integrated SETENA, the DGTCC, the INTA, the SINAC, and SENARA into the interinstitutional commission. Furthermore, the members of the referred commission were ordered to submit the reports required in the aforementioned resolution within a period of 10 calendar days. (See documentary evidence).\nh) On March 21 and 28, 2021, the MINAE and the ICAA, respectively, submitted briefs to case file No. 177-13-03-TAA. (See documentary evidence).\ni) On April 9, 2021, the Ministry of Health reported that the sanitary operating permit granted to Servicentro Costa Caribeños S. A. was revoked.
Furthermore, it communicated that, subsequently, it was verified that no contamination existed, and therefore the administrative act was lifted. (See documentary evidence).\nj) On April 29, 2021, the MINAE requested the calling of a meeting to evaluate the information in the case and subsequently conduct an inspection at the site of the complaint. (See documentary evidence).\nk) On May 23, 2014, SENARA communicated to the Water Directorate the terms of reference for carrying out a hydrogeological diagnosis at the reported site. (See documentary evidence).\nl) On June 10, 2014, the Water Directorate issued brief AT-2315-2014, by means of which it indicated that on May 20, 2014, the inspection of the reported site was conducted and several recommendations were issued, among them, ordering the respondent party to carry out a preliminary hydrogeological diagnosis in accordance with the terms of reference established by SENARA.
(See documentary evidence).\nm) On June 24, 2021, the DGTCC requested from the TAA that, once the precautionary measure issued by that directorate ordering Servicentro Costa Caribeños S. A to cease the provision of the public fuel supply service until July 2, 2014, concluded, the Administrative Environmental Tribunal assume jurisdiction regarding the application of eventual precautionary measures. (See documentary evidence).\nn) By resolution No. 471-14-TAA at 10:20 a.m. on June 30, 2014, the Administrative Environmental Tribunal ordered the Ministry of Health, the MINAE, the DGTCC, and ARESEP to exercise their powers to avoid possible risks to life, health, and the environment. Additionally, the Minister of Health was ordered to convene the Technical Committee of Executive Decree No. 37757-S and apply the pertinent regulations to responsibly dispose of soils that may be contaminated, to carry out the preliminary evaluation of the impact or potential impact of soil and aquifer contamination events, among others.
Likewise, the DGTCC was ordered to provide a copy of the hydrogeological study it required from the respondent party. For its part, the National Water Laboratory of the ICAA was asked to determine if there are signs of hydrocarbon contamination in the nearby surface water channel. Finally, the SINAC was required to determine if the site corresponds to a wetland. (See documentary evidence).\no) On July 15, 2014, the appellant requested the Administrative Environmental Tribunal to be considered an interested party within case file No. 177-13-03-TAA. (See documentary evidence).\np) In July 2014, ARESEP provided official communication 900-IE-2014. (See documentary evidence).\nq) By resolution No. 518-14-TAA at 2:02 p.m. on July 9, 2014, the TAA ordered the director of the Public Registry of Real Property and the director of Registry Services, both of the National Registry, as well as the mayor of Limón, to provide a series of documents.
(See documentary evidence).\nr) Through resolution No. 611-14-TAA at 7:17 a.m. on August 4, 2021, the Administrative Environmental Tribunal informed Banco Improsa S. A. of the actions in the case file and granted it a period of three days to present its arguments during the preliminary investigation stage. (See documentary evidence).\ns) On August 5, 2014, the DGTCC issued official communication DGTCC-809-2014, through which it requested the TAA to have a representative from that office participate in the meeting ordered by resolution R-DGTCC-709-2014, in which the concessionaire would be heard. (See documentary evidence).\nt) On August 13, 2014, Banco Improsa S. A. appeared in the proceeding.
(See documentary evidence).\ u) On August 19, 2014, the Directorate of Water reported that, on August 11, 2014, the inter-institutional commission met with representatives of the reported company and a meeting was subsequently held. (See documentary evidence).\ v) On September 12, 2014, the Ministry of Health reported attaching a report contained in official communication DR-HC-2233-2014, which stated, among other things, that on August 8, 2014, the operating permit of the respondent was revoked and seals were placed to close the columns of the bays. (See documentary evidence).\ w) On September 23, 2014, the Directorate of Water indicated that on September 12, 2014, a meeting of the inter-institutional commission was held. Furthermore, it was reported that there had been no participation from any official of SETENA. (See documentary evidence).\ x) On October 2, 2014, the Directorate of Water requested from the TAA a copy of the resolution issued in response to official communication AT-2315-2014.
(See documentary evidence).\ y) On October 13, 2014, the Directorate of Water communicated that a meeting of the inter-institutional commission took place on October 3, 2014. (See documentary evidence).\ z) On October 15, 2014, the DGTCC sent memorandum DGTCC-DL-056-2014 to the TAA, through which it addressed the latest findings of inspections conducted at the service station, as well as its current operating status. Furthermore, the Administrative Environmental Tribunal was requested to consider the points raised and take the corresponding actions. (See documentary evidence).\ aa) By Resolution No. 861-14-TAA issued at 9:06 a.m. on October 15, 2014, the Administrative Environmental Tribunal ordered, for the second time, the Ministry of Health, the DGTCC, the SINAC, and the National Water Laboratory of the ICAA to comply with what was ordered in pronouncement No. 471-14-TAA. Furthermore, the respondent was required to comply with whatever the corresponding entities ordered.
(See documentary evidence).\ bb) On October 21, 2014, the plaintiff filed a complaint before the TAA against the DGTCC "for the issuance of Resolution R-DGTCC-720 at 1:00 p.m. on August 18, 2014, by which the precautionary measure imposed on the Concessionaire Servicentro Costa Caribeños S.A., legal identification number 3-101-139783, was lifted by Resolution R-DGTCC-485-2014-MINAE of May 26, 2014, which in turn was issued in compliance with Resolution TAA-609-2013 at 9:25 a.m. on July 22, 2013, and 471-14-TAA at 10:20 a.m. on July 30, 2014, from the Administrative Environmental Tribunal (TAA), File ES-7-01-01-05-Servicentro Costa Caribeños." (See documentary evidence).\ cc) On October 22, 2014, the National Water Laboratory of the ICAA provided the report of analysis results for Servicentro Costa Caribeños S. A. (See documentary evidence).\ dd) On October 27, 2014, the Directorate of Water issued official communication AT-4953-2014, by which it indicated that "it does not have a comprehensive analysis of the information generated on this case, nor have technical recommendations been generated for the Administrative Environmental Tribunal, nor could measures regarding this be issued by the Inter-Institutional Commission, because the concessionaire (reported company) has not submitted the hydrogeological studies that generate information on the real situation of the case." (See documentary evidence).\ ee) On October 28, 2014, the Directorate of Water reported on actions taken within File No. 177-13-03-TAA.
(See documentary evidence).\ ff) On November 4, 2014, the Directorate of Water provided official communication AT-5198-2014 and stated that, as of October 3, 2014, the respondent had not provided the hydrogeological studies requested by SENARA. (See documentary evidence).\ gg) On November 7, 2014, the DGTCC sent memorandum DGTCC-096-2014, through which it stated that SENARA reported that the respondent had not conducted the required studies. Furthermore, it was mentioned that:\ "As we indicated in official communication DGTCC-DL-056-2014, the results of the chemical analyses performed on the water from the observation and monitoring wells at the service station in question were reviewed by the Engineering Department of this Directorate through technical report number IF-DGTCC-15-09-2014, dated September 17, 2014, and the presence of hydrocarbons was confirmed to be above the reference values used in Article 21 of Executive Decree 33601-MINAE-S, Regulation for the Discharge and Reuse of Wastewater.\ For this reason, this Directorate recommends that the Administrative Environmental Tribunal apply the administrative actions that become necessary in accordance with its powers, in the processing of the sanctioning administrative proceeding, for environmental contamination (...)" (See documentary evidence).\ hh) On November 13, 2014, the respondent requested before the TAA that it be allowed to provide a hydrogeological study before any pronouncement was issued.
(See documentary evidence).\ ii) On December 1, 2014, the Ministry of Health attached memorandum DR-HC-3126-2015, in which there is a follow-up report issued by the regional director of the Rectoría de la Salud Huetar Caribe. (See documentary evidence).\ jj) By Resolution No. 1117-14-TAA issued at 7:02 a.m. on December 3, 2014, by the Administrative Environmental Tribunal, it was indicated that, prior to responding to the respondent's request of November 13, 2014, it was necessary for them to provide to that office the studies requested by SENARA in official communication DIGH-UI-147-14. Furthermore, orders were issued to the Minister of Health and the director of the DGTCC. (See documentary evidence).\ kk) On December 5, 2014, the complainant made statements within File No. 177-13-03-TAA. (See documentary evidence).\ ll) On December 15, 2014, SINAC reported that the respondent's establishment is not located on land classified as wetlands.
Furthermore, it was stated:\ "According to the observed characteristics and those appreciable photographically regarding the unnamed watercourse, it is evident that it currently constitutes a drain for gray water and even black water, and as drainage that captures surface runoff caused by rainfall. Likewise, no species were observed that would indicate that said watercourse corresponds to a river, stream, or creek; for their part, both sides of the aforementioned unnamed watercourse are occupied by residential infrastructure. Therefore, there are no concrete elements to proceed with the economic valuation of environmental damage within the framework of the present case. Added to this, the aforementioned fuel dispensing establishment has been visually observed for more than 9 years (Map 1), approximately, regarding the existence of said infrastructure, therefore, the valuation of damage cannot be established (...)." (See documentary evidence).\ mm) On January 6, 2015, the respondent requested an extension of the deadline indicated in Resolution No. 1117-17-TAA issued by the Administrative Environmental Tribunal.
(See documentary evidence).\ nn) On January 13, 2015, the Ministry of Health attached the report issued by the regional director of the Rectoría de Salud Huetar Caribe. (See documentary evidence).\ oo) On January 19, 2015, the Ministry of Health reported that it activated the Technical Committee on Management of Contaminated Sites and that two meetings had been called. Likewise, it stated that the respondent had not provided the hydrogeological study with the approval of SENARA. (See documentary evidence).\ pp) On March 6, 2015, the Ministry of Health communicated that, given the lack of compliance with requirements by the reported company, it was waiting for their observance to call the meeting of the Technical Committee on Management of Contaminated Sites. (See documentary evidence).\ qq) On March 19, 2015, the respondent provided a hydrogeological study and results of chemical analyses.
Furthermore, it requested the dismissal of the complaint. (See documentary evidence).\ rr) Through Resolution No. 325-15-TAA issued at 10:24 a.m. on March 26, 2015, the Administrative Environmental Tribunal consulted SENARA on whether it approved the hydrogeological study provided by the respondent, for which it clarified that the report should be sent promptly. Similarly, the Ministry of Health was required to coordinate with the members of the Technical Committee of Executive Decree No. 37757-S, in order for them to formulate an opinion on the referred study and to "indicate the corrective actions that must be implemented." (See documentary evidence).\ ss) On April 14, 2015, the Ministry of Health provided official communication DPAH-UNSSAH-111-2015, in which an opinion was issued in accordance with the findings of the Committee. (See documentary evidence).\ tt) By Resolution No. 414-15-TAA issued at 2:02 p.m. on April 16, 2021, the Administrative Environmental Tribunal declared the appellant as having appeared in the file and dismissed the complaint they filed against the DGTCC.
Furthermore, the DGTCC was ordered to provide a certified copy of all laboratory analysis results that have found traces of hydrocarbons or similar substances in the monitoring and observation wells pertaining to the reported service station. (See documentary evidence).\ uu) Through Resolution No. 415-15-TAA issued at 2:07 p.m. on April 16, 2015, the TAA ordered SENARA—to which it granted 10 calendar days—and the DGTCC to comply with what was ordered in pronouncement No. 325-15-TAA of March 26, 2015. Furthermore, SETENA was ordered to provide a report concerning the "-) File number and environmental viability resolution for the Servicentro Costa Caribeños service station (...), -) Content, scope, and limitations of the approval of the environmental impact assessment, -) Detailed summary of the environmental oversight, monitoring, auditing, and follow-up given to the project, especially regarding the alleged contamination of soil, subsoil, and water resources (underground and/or surface) by hydrocarbons or similar substances, -) Current situation of the project before SETENA (...)." (See documentary evidence).\ vv) On April 21, 2015, SENARA informed the TAA that the reported company had recently provided a hydrogeological study for contamination risk and results of chemical analyses, so that they could be assessed.
Furthermore, it indicated that said document was in the study and assessment phase, so once the pertinent information was obtained, it would be communicated to the TAA. (See documentary evidence).\ ww) On May 6, 2021, the Ministry of Health attached note DR-HC-1052-2015 issued by the Regional Directorate of the Rectoría de la Salud Huetar Caribe. (See documentary evidence).\ xx) By Resolution No. 555-15-TAA issued at 2:02 p.m. on May 13, 2015, the TAA ordered for the third time the Ministry of Health and SENARA, and for the second time SETENA, to comply with the provisions of resolutions "325-15-TAA and 415-15-TAA," within 10 calendar days. (See documentary evidence).\ yy) On May 14, 2015, the DGTCC attached certified information regarding the results of laboratory chemical analyses conducted at the premises of the service station whose owner is Servicentro Costa Caribeños S. A. (See documentary evidence).\ zz) On June 12, 2015, the Ministry of Health issued memorandum DPAH-UNSSAH-0197-15, in which it noted that, on June 8, 2015, SENARA provided official communication UI-127-15, which indicated that the hydrogeological study provided by the respondent was visibly incomplete.
Furthermore, it was indicated that "this Directorate maintains the opinion that what was established in official communication DPAH-UNSSAH-111-15 sent to this Tribunal via DPAH-UNSSAH-112-15 must be complied with in order to verify the level of soil contamination in accordance with Decree 37757-S, and to request Costa Caribeños to make the corrections recommended by SENARA in UI-127-15." (See documentary evidence).\ aaa) On July 7, 2015, the respondent provided evidence, among it, "Report on the current status of the pit. Proof of tank tightness. Manifest of delivery of contaminated material to Cemex for proper treatment. Copy of the procedure carried out before the Contraloría Ambiental Minaet." (See documentary evidence).\ bbb) On July 17, 2015, the respondent provided evidence. (See documentary evidence).\ ccc) Through Resolution No. 979-15-TAA issued at 10:49 a.m. on August 7, 2015, the Administrative Environmental Tribunal ordered SETENA, for the third time, to comply with what was indicated in resolutions "415-15-TAA and 555-15TAA." Likewise, the respondent was ordered to provide "an updated compliance report regarding the administrative act of the Ministry of Health No. DPAH-UNSSAH-11-2015 (...), SENARA official communication No. UI-127-15 of May 13, 2015 (...), and administrative act No. DPAH-UNSSAH-0198-15 of June 12, 2015 (...) from the Ministry of Health (...)." For their part, the director of the Directorate for the Protection of the Human Environment of the Ministry of Health was ordered to provide a report on the degree of compliance with the administrative acts issued by that ministry, as well as the measures adopted in case of non-compliance; likewise, it was required to "explain what the content of the opinion issued by the Technical Committee has been regarding the disposal of the contaminated soils that was allegedly carried out." Meanwhile, the general manager of SENARA was asked to issue an updated report on the compliance by the reported company, as well as to indicate whether or not the service station is located in an aquifer recharge area and/or in an area of considerable hydrological vulnerability.
Finally, the DGTCC was constrained to inform whether the tightness of the tanks, pipes, and other equipment of the reported service station is guaranteed. (See documentary evidence).\ ddd) On September 1, 2015, SENARA communicated that the respondent had not provided the observations requested in official communication DIGH-208-15 of June 8, 2015. Furthermore, it reported that the respondent's establishment is located within the study area for the Moín aquifer, specifically in zone 8 of high vulnerability. (See documentary evidence).\ eee) On September 4, 2015, the respondent claimed to provide the expansion and correction of the terms of reference requested by SENARA regarding the hydrogeological study. Furthermore, it made multiple statements and requested that the competent authorities be required to issue an opinion regarding the large amount of evidence provided. (See documentary evidence).\ fff) On September 4, 2015, the Ministry of Health issued memorandum DPAH-UNSSAH-329-2015, in which various actions taken concerning the case are detailed.
Furthermore, it was indicated that it is necessary to carry out soil sampling in order to identify the area contaminated with hydrocarbons outside the pit and the depth; this, for the purposes of determining whether a remediation plan is to be applied. Likewise, it was stated that it is necessary for the reported company to provide the clarifications requested by that ministry and by SENARA regarding the hydrogeological study. (See documentary evidence).\ ggg) On September 23, 2015, the respondent alleges that it provided "Results of chemical analyses of water samples from the monitoring wells taken on September 8 at Servicentro Costa Caribeños in the presence of Senara and the Directorate for the Protection of the Human Environment." (See documentary evidence).\ hhh) On December 9, 2015, the DGTCC requested the TAA to report on the status of the proceeding, in accordance with what was ordered by this Constitutional Chamber in Judgment No. 2015003170 at 9:30 a.m. on March 6, 2015.
(See documentary evidence).\ iii) Through Resolution No. 1529-15-TAA issued at 11:49 a.m. on December 10, 2015, the Administrative Environmental Tribunal ordered SENARA to provide an updated report on the respondent's compliance with what was requested by that Secretariat in official communication UI-127-15, for which it requested that they indicate whether or not they endorsed the corrected version of the hydrogeological study. Likewise, the Directorate for the Protection of the Human Environment of the Ministry of Health was ordered to issue a report on the degree of compliance with the administrative acts issued by that ministry and by SENARA, on the measures adopted in case of non-compliance, as well as to communicate if there is evidence of contamination of soil and/or subsoil, or eventually of water resources. Similarly, SETENA was ordered for the fourth time to comply with the provisions of resolutions 415-15-TAA, 555-15-TAA, and 979-15-TAA.
Finally, the DGTCC was ordered for the second time to send a report indicating whether the tightness of the tanks, pipes, and other equipment of the service station was guaranteed, as well as whether the allegedly contaminated soils had been extracted and disposed of in an environmentally adequate manner. (See documentary evidence).\ jjj) On December 14, 2015, the plaintiff filed a complaint before the TAA against the MINAE, the DGTCC, and SETENA. (See documentary evidence).\ kkk) On December 17, 2015, the Ministry of Health provided official communication DPAH-UNSSAH-446-2015 and reported that on November 30, 2015, the monitoring plan was received from the reported company, so it was going to proceed to review it to issue the corresponding opinion. Furthermore, it noted that it had not received a copy of any opinion issued by SENARA. (See documentary evidence).\ lll) On January 18, 2016, the general manager of SENARA stated that:\ "The reported company submitted an annex to the Hydrogeological Study on September 7, 2015; however, it did not meet all the requirements requested in official communication UI-127-15, which is why again, through official communication DIGH-340-15 dated September 30, 2015, official communication UI-245-15 of September 30, 2015, was made known, by which it is requested to comply with all terms of reference to issue the institutional opinion.
Now, despite the warning from my represented party, the reported company has not complied to date with the warning contained in the attached official communication UI-245-15." (See documentary evidence).\ mmm) On February 12, 2016, the respondent indicated that it filed before SENARA a request for nullity of the notifications of memoranda SENARA DGIH-340-15 and UI-245-15. (See documentary evidence).\ nnn) On April 7, 2016, the plaintiff filed a disobedience proceeding before this Chamber and before the TAA regarding what was ordered in the resolution issued in File 14-018632-0007-CO. (See documentary evidence).\ ooo) Through Resolution No. 376-16-TAA issued at 10:49 a.m. on April 12, 2016, the Administrative Environmental Tribunal dismissed the complaint filed by the appellant on December 14, 2015. (See documentary evidence).\ ppp) Through Resolution No. 377-16-TAA issued at 10:51 a.m. on April 12, 2016, the Administrative Environmental Tribunal ordered the opening of an ordinary administrative proceeding against Servicentro Costa Caribeños S. A. and its representative Johnny Fung Acón for the following acts:\ "To cause by itself and/or through another and/or to permit, and/or not to prevent, contamination by hydrocarbons of the soil, subsoil, surface water, and groundwater pertaining to the aforementioned property and its direct and indirect area of influence.\ Total or partial non-compliance with the administrative acts of the DGTCC, this Tribunal, and the Ministry of Health referred to in the Findings of this Resolution, by which the respondent was ordered to do the following: 1) Present to this Tribunal a hydrogeological study (under the Terms of Reference established by SENARA), which had the approval of SENARA. 2) Present to the Ministry of Health the pertinent corrections and/or clarifications to the hydrogeological study, as indicated by the Ministry of Health."\ Furthermore, the parties were summoned to an oral and public hearing to be held on June 24, 2016.
(See documentary evidence).\ qqq) On April 29, 2016, the respondent indicated that it provided a copy of the corrections for compliance with all terms of reference for the hydrogeological study conducted on Servicentro Costa Caribeños S. A. (See documentary evidence).\ rrr) On May 16, 2016, the special administrative representative of Banco Nacional requested that the banking entity be considered a third party with legitimate interest. (See documentary evidence).\ sss) On May 12, 2016, the general secretary of the Secretaría Técnica Nacional Ambiental attached memorandum SG-ASA-0151-2016, which contains the information required in Resolution No. 1529-15-TAA. (See documentary evidence).\ ttt) On June 24, 2016, the plaintiff provided the arguments for the oral hearing scheduled for that same day. (See documentary evidence).\ uuu) On June 24, 2016, the legal representative with powers of unlimited general attorney-in-fact of Servicentro Costa Caribeños S. A. requested the TAA to reschedule the hearing set for that day, because he was hospitalized.
(See documentary evidence).\ vvv) On June 24, 2016, the DGTCC provided memorandum DGTCC-DL-173-2016, through which it referred to what was stated in Resolution No. 377-16-TAA issued by the TAA and clarified that a formal written complaint was never filed, but rather that it communicated to that Tribunal actions carried out within the scope of its powers. (See documentary evidence).\ www) At 9:20 a.m. on June 24, 2016, the TAA issued minutes of the oral and public hearing held that day, in which it was stated that, in order not to cause defenselessness to the respondent, given that its legal representative was hospitalized, the hearing was suspended. (See documentary evidence).\ xxx) By Resolution No. 757-16-TAA issued at 10:30 a.m. on June 24, 2016, the TAA corrected the minutes of the oral hearing and noted Banco Improsa S. A. as present at said proceeding. (See documentary evidence).\ yyy) On June 30, 2016, the legal representative of the respondent provided a copy of the sick leave certificate issued to him between June 23 and 26, 2016.
(See documentary evidence).\ zzz) Through Resolution No. 837-16-TAA issued at 9:14 a.m. on July 6, 2016, the Administrative Environmental Tribunal rescheduled the oral hearing for September 9, 2016. (See documentary evidence).\ aaaa) On September 8, 2016, the respondent requested before the Administrative Environmental Tribunal the approval of the soil monitoring, sampling, and analysis plan approved by the Ministry of Health in Resolution DPAH-UNSSAH-403-2016. (See documentary evidence).\ bbbb) At 9:17 a.m. on September 9, 2016, the TAA issued minutes of the oral and public hearing held within File No. 177-13-03-TAA, and it was indicated that the continuation of the hearing was set for December 7, 2016. (See documentary evidence).\ cccc) On September 27, 2016, the Directorate for the Protection of the Human Environment of the Ministry of Health communicated to the TAA that a change occurred in the appointment of the technical committee on management of contaminated sites and the follow-up of the monitoring plan concerning the respondent.
(See documentary evidence).\ dddd) On November 14, 2016, the respondent requested an extension of the deadline for conciliation granted at the hearing held on September 9, 2016. (See documentary evidence).\ eeee) On November 15, 2016, the Directorate for the Protection of the Human Environment of the Ministry of Health attached official communication DPAH-UNSSAH-468-2016. Furthermore, it was indicated that the third monitoring report was received, in which it is observed "that there are no large risk zones, only free phase was observed in piezometer PX-01 (with a value of 27 mh/l, of volatile organic compounds in the dissolved phase sample). The need is observed to maintain the activities conducive to eliminating the free phase as well as to eliminate and monitor flammability risks, through an Action Plan, which it is recommended be presented to that Tribunal and the Ministry of Health, within a period of 10 days.
This Directorate is awaiting the pronouncement of the Health authorities, in order to know their opinion on the donation proposed by Mr. Fung Acón, procedures that have already been initiated." (See documentary evidence).\ ffff) On November 29, 2016, the Minister of Health reported that:\ "In response to the note of October 20, 2016, signed by Mr. Johnny Fung Acón, (Request for conciliatory agreement), in relation to the case of contamination of Costa Caribeños (Administrative File No. 177-13-03-TAA), and following up on official communication DPAH-UNSAAH-484-2016, we respectfully inform that Tribunal that this Ministry has the consent to receive a refrigerated container, completely equipped for an office, to be used by the Day Hospital Polivalente service of the Tony Facio Hospital.\ Said good, responds to the need to carry out a pilot plan by the Caja Costarricense de Seguro Social, carried out by said Hospital, which will greatly benefit the preventive and curative actions supervised by this Ministry.
Dr. Johnny Fung Acón must be notified, if that Tribunal deems it appropriate, to coordinate the delivery with Dr. Deiver Vidal, Director of the Tony Facio Hospital." (See documentary evidence).\ gggg) By Resolution No. 1604-16-TAA issued at 2:51 p.m. on November 29, 2016, the Administrative Environmental Tribunal considered it necessary that, prior to the continuation of the oral hearing, the respondent should have provided the Ministry of Health with an action plan for the elimination of flammability risks that has the approval of that ministerial entity, which is why it suspended the hearing scheduled for December 7, 2016. Furthermore, the director of the Directorate for the Protection of the Human Environment and the head of the Unit for Standardization of Health Services in the Human Environment, both of the Ministry of Health, were ordered to report whether the action plan for flammability risks provided by the respondent meets the established requirements.
Likewise, it was noted that the TAA would rule at the appropriate time on the consent for the donation of a container to take place. (See documentary evidence).\ hhhh) On December 6, 2016, officials from the Ministry of Health provided memorandum DPAH-UNSAAH-505-2016, through which reference was made to the action plan for flammability risks provided by the respondent. (See documentary evidence).\ iiii) On December 7, 2016, the respondent provided the fourth update of the monitoring plan corresponding to the action plan for the elimination of flammability risks. (See documentary evidence).\ jjjj) On February 15, 2015, the respondent provided the first monitoring of phases and pumping in well PX01 in accordance with the action plan for the elimination of flammability risks. Furthermore, it stated that "the corrections and clarifications to the Hydrogeological Study requested by Senara through official communication No. UI-236-16 are provided." (See documentary evidence).\ kkkk) By Resolution No. 476-17-TAA issued at 1:02 p.m. on April 17, 2017, the Administrative Environmental Tribunal made known to the plaintiff the conciliation plan proposed within the file, in order for them to make the observations they deemed pertinent.
(See documentary evidence).\ llll) On April 19, 2017, the appellant requested that the conciliation plan proposed by the respondent be rejected. Furthermore, they requested that an economic valuation of the damage be ordered. (See documentary evidence).\ mmmm) On April 19, 2017, the Dirección General de Transporte y Comercialización de Combustible issued memorandum DGTCC-DL-64-2017, by which it ruled on the conciliatory agreement proposed by the complainant. (See documentary evidence).
In this regard, it was stated that: “The DGTCC will not determine or judge the existence or assessment of environmental damage, nor the acknowledgment and acceptance of proposals for the approval of conciliation agreements, which are exclusively the purview of the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) (…) As for the aspects that do fall within the competencies of the DGTCC, it is reiterated that having analyzed the documents and information contained in the file, as well as the inspection by the Engineering Department of the DGTCC, compliance by the concessionaire with the technical provisions that the service station installations must meet, based on the provisions of Executive Decree (Decreto Ejecutivo) 30131-MINAE-S, Regulation for the Regulation of the Hydrocarbon Storage and Marketing System (Reglamento para la Regulación del Sistema de Almacenamiento y Comercialización de Hidrocarburos), has been verified”. (See documentary evidence).
nnnnn) On June 19, 2017, the complainant stated that they provided a report issued by the company Futuris Consulting S. A. concerning the second and third monitoring of gases and pumping at PX01 “in order to fully comply with the Monitoring Plan (Plan de Monitoreo) and with the final recommendation of resolution DPAH-UNSSAH-098-2017 from the Directorate for the Protection of the Human Environment (Dirección de Protección al Ambiente Humano) (…)”. Additionally, they requested the approval of the proposed conciliation plan. (See documentary evidence).
oooo) Through resolution No. 771-17-TAA at 3:44 p.m. on May 30, 2017, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) resolved: “FIRST: To approve the Conciliatory Proposal (Propuesta Conciliatoria) to approve the Monitoring Plan (Plan de Monitoreo) approved by the Ministry of Health (Ministerio de Salud) through DPAH-UNSSAH-403-2016 dated September 2, 2016, issued by the Health Services Standardization Unit for the Human Environment (Unidad de Normalización de Servicios de Salud en Ambiente Humano) of the Directorate for the Protection of the Human Environment (Dirección de Protección al Ambiente Humano) of the Ministry of Health (Ministerio de Salud). SECOND: Mr. Johnny Fung Acón, bearer of identification card 1-0837-329, legal representative of the company named Servicentro Costa Caribeños S.A., is ordered to comply with all obligations established herein and not to carry out activities contrary to law.
The Ministry of Health (Ministerio de Salud), in accordance with its competencies, must provide semi-annual follow-up to said Plan. Said Ministry must be informed that only in the event of finding any non-compliance during those years, must it notify this Tribunal in order to assess whether or not to continue the ordinary administrative procedure. THIRD: Mr. Johnny Fung Acón, bearer of identification card 1-0837-329, legal representative of the company named Servicentro Costa Caribeños S.A., is ordered to comply with the provisions of the eleventh considerando (Considerando) of this resolution (…) FOURTH: That Mr. Johnny Fung Acón, bearer of identification card 1-0837-329, legal representative of the company named Servicentro Costa Caribeños S.A., is hereby informed that in the event of non-compliance with any of the points indicated herein, the Approval (Homologación) granted shall be rendered without effect, and the ordinary administrative procedure shall continue.
FIFTH: To summon the parties to the continuation of the Oral and Public Hearing (Audiencia Oral y Pública) for Thursday, July 27, 2017, at 1:30 p.m., at the headquarters of the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo), maintaining as the sole imputed fact that of having failed to comply with “1) Present to this Tribunal a hydrogeological study (under the Terms of Reference (Términos de Referencia) established by SENARA), that has the approval of SENARA.” The foregoing in accordance with resolution No. 377-16-TAA at ten fifty-one in the morning on April 12, two thousand sixteen (…)”. (See documentary evidence).
pppp) On July 27, 2017, the special judicial attorney-in-fact for the respondent provided a copy of the receipt for the donation form of a container to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). (See documentary evidence).
qqqq) At 2:03 p.m. on July 27, 2017, the TAA issued a record of the continuation of the oral and public hearing (audiencia oral y pública) in which it was recorded: “At this proceeding, the oral and public hearing (audiencia oral y pública) continues. Resolution No. 771-17-TAA of 3:44 p.m. on May 30, two thousand seventeen is read, whereby the imputation of charges is made, of a single charge, in relation to Resolution No. 377-16-TAA of 10:51 a.m. on April 12, two thousand sixteen (…) With no further matters to address, at 3:56 p.m. the session is adjourned, with the file ready for the issuance of the final act (acto final).” Furthermore, the audio of said hearing indicates that the TAA clarified that the file was ready for the issuance of the final act (acto final) “except if within 30 business days the corresponding endorsement by SENARA of the hydrogeological study is presented”. (See documentary evidence).
rrrr) On August 9, 2017, SENARA incorporated into file No. 177-13-03-TAA the brief SENARA-DIGH-UI-0231-2017 in which it communicated to the respondent its opinion on the annex to the hydrogeological study submitted on February 15, 2017, and issued requirements (prevenciones) to be fulfilled regarding such study. Likewise, it clarified that “In order for the Institution to issue an opinion, the entirety of the requested Terms of Reference (Términos de Referencia) must be satisfied. Therefore, it is requested that the necessary points be resolved, in order for the institution to issue an opinion.” (See documentary evidence).
ssss) On August 14, 2017, the special judicial attorney-in-fact for the respondent stated: “As of today, Geologist María Magdalena Monge Cordero and Geologist Roberto Ramírez Chavarría from the Research and Water Management Unit (Unidad de Investigación y Gestión Hídrica) of the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Agua Subterráneas Riego y Avenamiento) have not notified my client regarding the fulfillment of the corrections and clarifications to the Hydrogeological Study submitted since February 14, 2017, which they committed to responding to in the last hearing (held at one thirty in the afternoon on July twenty-seventh, 2017) by the following week, that is, from July 31 to August 4, 2017. Thereby, my client is unable to comply within the one-month deadline indicated by your authority in the event that SENARA requires the presentation of another requirement, be it tests and analyses, which require a reasonable time to process.
Given that the hydrogeological study is complete, that it also already has the approval of the Human Environment Health Services Standardization Unit (Unidad de Normalización de los Servicios de Salud en Ambiente Humano) of the Ministry of Health (Ministerio de Salud), that the consulting company Futuris Consulting indicated in its latest report, which is on file, as a textual recommendation ‘Since the hydrocarbons from Site 1 do not represent a risk to health or groundwater, and since the remaining concentrations are very low, it is considered that no further investigation or remediation is necessary,’ I request that it be declared that it is the Administration, through SENARA, which due to its tardiness has not resolved the request for the review of corrections in a timely manner, a process that should be agile, simple, and routine, and that your authority take into account what is stated in this brief since there is no non-compliance by my client with the submission of the Hydrogeological Study, but rather there is a non-compliance by SENARA in reviewing it.” (See documentary evidence).
tttt) On August 26, 2021, the petitioner sent official communication AEL-0093-2021 to SENARA and to the Directorate General of Hydrocarbon Transport and Marketing (Dirección General de Transporte y Comercialización de Combustible), through which he stated: “(…) please certify, for legal, jurisdictional, and constitutional purposes, the current physical, sanitary, and environmental status of Servicentro Costa Caribeños in follow-up and full compliance with the technical studies required by SENARA since July 10, 2013, in the processing of the Amparo Appeal (Recurso de amparo) file No. 13-006391-0007-CO, filed against the gas station Servicentro Costa Caribeños S.A. FIRST: Subject to a better, duly substantiated technical opinion, we consider that the necessary coordination must be undertaken to guarantee that there is due scientific and legal certainty that there is no danger or threat of serious or imminent damage to the elements of biodiversity, because if such were the case, we respectfully request that you send me a certified copy of the updated technical reports that so establish (…) PETITION: Given that what was ordered by the Constitutional Chamber (Sala Constitucional) is mandatory for the Directorate of Hydrocarbon Transport and Marketing (Dirección de Transporte y Comercialización de Combustible) of MINAE (or whoever holds its position), applying the principle of good faith that must govern the acts of the public administration, we assume: a) That what was ordered by the Constitutional Chamber (Sala Constitucional), since July 2013, has already been amply fulfilled by the Directorate of Hydrocarbon Transport and Marketing (Dirección de Transporte y Comercialización de Combustible) of MINAE (or whoever holds its position).
If such compliance is true, we request that said compliance be certified to us, indicating, based on the provisions of Articles 11, 28, and 46, final paragraph, of the Political Constitution (Constitución Política), expressly what are those tests performed that are recorded in the administrative file, dates on which they were performed, responsible officials, and specific actions taken, as well as the follow-up tasks that the Directorate of Hydrocarbon Transport and Marketing (Dirección de Transporte y Comercialización de Combustible) of MINAE (or whoever holds its position) has carried out in compliance with the Judgment of the Constitutional Chamber (Sala Constitucional), to verify that as of today there are no threats of contamination of the aquifers, due to fuel leaks at the repeatedly cited service station. b) If the respective administrative file does not contain the exculpatory evidence proving compliance with its constitutional obligations by Servicentro Costa Caribeños and concomitantly and jointly by the Directorate of Hydrocarbon Transport and Marketing (Dirección de Transporte y Comercialización de Combustible) of MINAE (or whoever holds its position), we request that it be certified what corrective actions the Directorate General of Hydrocarbon Transport and Marketing (Dirección General Transporte y Comercialización de Combustible) has ordered to be carried out to guarantee to the Limón community that their health is being protected, and what are those proactive, concrete, and specific measures that the Directorate of Hydrocarbon Transport and Marketing (Dirección de Transporte y Comercialización de Combustible) of MINAE (or whoever holds its position) has taken to comply with the provisions of Article 50 of the Constitution (Constitución).” (See documentary evidence).
uuuu) On August 26, 2021, the complainant sent the brief MLV-0053-2021 to SENARA, through which he expressed: “(…) Ref: File 184-2013. Servicentro Costa Caribeños (…) I appear before you to formally request an integral copy of the hydrocarbon water sampling and analyses, broken down for the compounds requested by SENARA for (Benzene, Toluene, Ethylbenzene, Xylene, Benzo alpha Pyrene, and Polycyclic Aromatic Hydrocarbons) in wells PEZ, PD, Pc, PX02, PB, PX01, PA, P2, and PXO3 that are part of the referenced file (…)”. (See documentary evidence).
wwww) On September 29, 2021, SENARA issued the brief SENARA-DIUG-UI-244-2021 to the petitioner, through which it stated: “Through this document, a response is provided to notes AEL-0093-2021 and MLV-0053-2021, submitted by Mr. Marco Vinicio [Name 001]. Due to a storage issue in the Central Archive of SENARA, the requested response is being provided again, as there is more updated information on the Costa Caribeños case. Note AEL-0093-2021 requests the following: (…) In this regard, SENARA issued the terms of reference that the Costa Caribeños Service Station had to comply with to develop the hydrogeological study at the site, on May 23, 2014, through official communication DIGH-Ul-147-14, sent to the Inter-institutional Commission for the case in question. On March 20, 2015, the Hydrogeological Study was received from Mr. Johnny Fung Acón, legal representative of the Servicentro Costa Caribeños.
The study was conducted by Mr. Eduardo Hernández, and official communication UI-127-15 was issued for it, requesting that certain aspects of the study be corrected. On September 7, 2015, an annex to the Hydrogeological Study was received from Mr. Johnny Fung Acón. It was indicated regarding this, through official communication UI-245-15 on September 30, 2015, that there were still aspects of the study that needed to be corrected. Through resolution No 377-16-TAA of April 12, 2016, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) summoned all parties to an oral and public hearing (audiencia oral y pública) on June 24, 2016, so that each party could argue their case regarding what the respondents are accused of; however, this hearing was suspended and rescheduled for September 9, 2016, through resolution No. 837-16-TAA of July 6, 2016. On May 2, 2016, another annex was received from Costa Caribeños, and once again, clarifications were requested on the noted information, through Official Communication UI-112-16 of June 22, 2016.
SENARA became aware that the Ministry of Health (Ministerio de Salud), through official communication DPAH-UNSSAH-403-2016, approved a monitoring, sampling, and soil analysis plan for this project, and through notes dated September 12, 2016, and November 10, 2016, Mr. Johnny Fung Acón requested approval (homologación) by SENARA. However, clarifications on the information were once again requested, through Official Communication UI-236-16 of December 9, 2016. Through a note dated February 14, 2017, a response to official communication UI-236-16 was received, and once again, clarifications were requested through official communication SENARA-DIGH-UI-0231-2017 of August 4, 2017. To date, no new annexes have been received from Costa Caribeños. On May 30, 2017, through resolution No. 771-17-TAA, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) resolved to approve (homologar) the Conciliatory Proposal (Propuesta Conciliatoria) to approve the Monitoring Plan (Plan de Monitoreo) approved by the Ministry of Health (Ministerio de Salud) through official communication DPAH-UNSSAH-403-2016, and indicated that the Ministry of Health (Ministerio de Salud) must provide semi-annual follow-up to said plan.
The parties were also summoned to the continuation of the Oral and Public Hearing (Audiencia Oral y Pública) for Thursday, July 27, 2017, to address the issue that Costa Caribeños has not complied with presenting to the TAA a hydrogeological study (under the Terms of Reference (Términos de Referencia) established by SENARA) that has the approval of SENARA. After this date, SENARA has not received any notification or resolution from the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo), nor has it received new documentation from the Servicentro Costa Caribeños. Note MLV-0053-2021 requests the following: (…) Regarding this request, the remaining information to complete the copy of the requested file will be sent to you shortly via email from Mrs. Marlen Obando, secretary of the Directorate of Research and Water Management (Dirección de Investigación y Gestión Hídrica) (…)”. (See documentary evidence).
yyyy) Through resolution No. 1442-2021-TAA at 10:00 a.m. on October 25, 2021, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) resolved: “FIRST: That this Tribunal considers it pertinent to verify compliance with what was Approved (Homologado) through Resolution No. 771-17-TAA at three forty-four in the afternoon on May thirty, two thousand seventeen; therefore, Dr. Daniel Salas Peraza, in his capacity as Minister of the Ministry of Health (Ministerio de Salud), or whoever holds his position, is warned (se previene) to report on compliance by Servicentro Costa Caribeño S.A. (…) with the Monitoring Plan (Plan de Monitoreo) Approved (Homologado) by this Tribunal (…) SECOND: That in view of Official Communication SENARA-DIGH-UI-0231-2017 filed on October 9, 2017, in which it is indicated: (…) the brief filed on August 14, 2017 by Attorney Liliana Navarrete Porras, in her capacity as special attorney-in-fact for Servicentro Costa Caribeños, S.A., (…); as well as Official Communication DGTCC-DL-2021-130 filed on August 31, 2021 and signed by Attorney Diego Sojo Obando, in his capacity as Director General of the DGTCC (…), this office considers it convenient to have elements that allow clarifying the true facts in this administrative file (…) THIRD: That from the analysis of administrative file No. 177-13-03-TAA, this Tribunal considers it pertinent to request a report, in order to establish the true facts; therefore, this Office, prior to issuing the Final Act (Acto Final) (…) as evidence for better resolution (prueba para mejor resolver), resolves to request Geologist Roberto Ramírez Chavarría, in his capacity in the Water Research Directorate (Dirección de Investigación Hídrica) of the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) SENARA; or whoever holds his position, to report: a. whether the Company Servicentro Costa Caribeños S.A., legal identification number 3-101-1139783, submitted the information requested through Official Communication SENARA-DIGH-UI-0231-2017 dated August 4, 2017 (…); if affirmative, indicate whether the Hydrogeological Study conducted by the cited company has the Endorsement (Aval) of the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento). The foregoing within a period of three business days counted from the business day following the notification of this resolution (…)”. (See documentary evidence).
zzzz) On October 28, 2021, the director of the Directorate of Water Research and Management (Dirección de Investigación y Gestión Hídrica) of SENARA sent the brief SENARA-DIGH-0146-2021 to the TAA, through which he stated: “(…) 15. On May 30, 2017, through resolution No. 771-17-TAA, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) resolved to approve (homologar) the Conciliatory Proposal (Propuesta Conciliatoria) to approve the Monitoring Plan (Plan de Monitoreo) approved by the Ministry of Health (Ministerio de Salud) through official communication DPAHUNSSAH-403-2016, and indicated that the Ministry of Health (Ministerio de Salud) must provide semi-annual follow-up to said plan. The parties were also summoned to the continuation of the Oral and Public Hearing (Audiencia Oral y Pública) for Thursday, July 27, 2017, to address the issue that Costa Caribeños has not complied with presenting to the TAA a hydrogeological study (under the Terms of Reference (Términos de Referencia) established by SENARA) that has the approval of SENARA. 16.
Once again, clarifications on the information provided on February 14, 2017, were requested through official communication SENARA-DIGH-UI-0231-2017 of August 4, 2017, a document issued by the Water Research Unit (Unidad de Investigación Hídrica) of SENARA. To date, no new annexes have been received from Costa Caribeños. 17. After this date, SENARA has not received any notification or resolution from the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo), nor has it received new documentation from the Servicentro Costa Caribeños. 18. That on September 29, 2021, through official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Water Research and Management (Dirección de Investigación y Gestión Hídrica) of SENARA, a response was provided to the requests made by Mr. [Name 001], petitioner in his official communications AEL-0093-2021 and MLV-053-2021. 19.
That as mentioned in official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Water Research and Management (Dirección de Investigación y Gestión Hídrica) of SENARA, the developer of the Servicentro Costa Caribeños project, specifically its legal representative, is responsible for complying with the submission to the TAA of a hydrogeological study (under the terms of reference established by SENARA) that has the approval of SENARA, given that to date it has still not complied with the requirements of SENARA and therefore has not complied with what was ordered by the TAA. PETITION The Company Servicentro Costa Caribeños S.A., legal identification number 3-101- 1139783, has not submitted the annexes of the information requested through Official Communication SENARADIGH-UI-0231-2017 dated August 4, 2017; as the above has not been fulfilled, the National Groundwater, Irrigation, and Drainage Service (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento) has NOT ENDORSED (AVALADO) the Hydrogeological Study conducted by the cited company.” (See documentary evidence).
aaaaa) The general manager of SENARA reports that: “1. SENARA issued the terms of reference that Servicentro Costa Caribeños had to comply with to develop the hydrogeological study at the site, on May 23, 2014, through official communication DIGH-UI-147-14, sent to the Inter-institutional Commission for the case in question. Prior to this official communication, on May 20, 2014, an inspection of the service station in question was conducted, and official communication DIGH-UI-149-14 was issued with the observations from the visit. 2. On September 25, 2014, Mr. Johnny Fung Acón sent documents to prove to SENARA that there is no hydrocarbon contamination; however, the evidence presented shows high levels of hydrocarbons in observation and monitoring wells. 3. On October 8, 2014, a note was received from Mr. Johnny Fung Acón, in which he requested a reduction in the number of piezometers to be installed at the station.
He also provided a presentation made by geologist Emma Tristán regarding a precautionary measure (medida cautelar) issued by the DGTCC. 4. In official communication UI-294-14 of October 17, 2014, Mr. Johnny Fung Acón is informed that evidence of hydrocarbons was found in the observation and monitoring wells of the fuel station, and that the proposal to reduce requirements is not viable and the analyses requested in official communication DIGH-UI-147-14 must be carried out to evaluate the site conditions. 5. On October 22, 2014, SENARA scheduled the start of the requested drilling; however, it was not possible to proceed with the drilling machine, so SENARA rescheduled the start of this activity. By November 26, 2014, the drilling that forms part of the hydrogeological study requested by SENARA had begun. 6. On January 15, 2015, SENARA supervised the taking of water samples at the 5 requested sites, jointly with the Ministry of Health (Ministerio de Salud), and on-site inspection record No. HC-ARS-L-00209-2015 was issued. 7.
On March 20, 2015, the Hydrogeological Study was received from Mr. Johnny Fung Acón, legal representative of Servicentro Costa Caribeños. The study was conducted by Mr. Eduardo Hernández, and official communication UI-127-15 was issued regarding it on May 13, 2015, by the Investigation Unit (Unidad de Investigación) of SENARA, where the developer was requested to correct aspects of the study such as geological profiles, drilling information, clarification of the hydraulic parameters provided, definition of the hydrogeological model, water sample results, and review of vulnerability calculations. 8. On September 7, 2015, an annex to the Hydrogeological Study was received from Mr. Johnny Fung Acón. It was indicated regarding this, through official communication UI-245-15 on September 30, 2015, that there were still aspects of the study that had not been corrected. 9. Through resolution No. 377-16-TAA of April 12, 2016, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) summoned all parties to an oral and public hearing (audiencia oral y pública) on June 24, 2016, so that each party could argue their case regarding what the respondents are accused of; however, this hearing was suspended and rescheduled for September 9, 2016, through resolution No. 837-16-TAA of July 6, 2016. 10.
On April 29, 2016, another annex was received at SENARA from Costa Caribeños, and once again, through Official Communication UI-112-16 of June 22, 2016, the Investigation Unit (Unidad de Investigación) of SENARA requested that the developer clarify the geological profiles, the infiltration tests performed, hydraulic parameters provided, results of hydrocarbon analyses that had not been provided, and the hydrogeological model. 11. On July 19, 2016, official communications DPAH-UNSSAH-330-2016 and DPAH-UNSSAH-331-2016 were received, where the Ministry of Health (Ministerio de Salud) approved the “First Update to the Monitoring, Sampling, and Analysis Plan for Soils and Groundwater,” prepared by Alexander Goyenaga dated May 20, 2016, submitted by Emma Tristán Montero of Futuris Consulting S.A. 12. On August 18, 2016, the Ministry of Health (Ministerio de Salud) partially approved the “Second Update to the Monitoring, Sampling, and Analysis Plan for Soils and Groundwater,” through official communication DPAH-UNSSAH-379-2016. 13.
SENARA became aware that the Ministry of Health (Ministerio de Salud), through official communication DPAH-UNSSAH-403-2016, approved a monitoring, sampling, and soil analysis plan for this project, and through notes dated September 12, 2016, and November 10, 2016, Mr. Johnny Fung Acón provides the approved plans and requests approval (homologación) by SENARA. He also provides the response given by Futuris Consulting to official communication UI-245-15. However, clarifications to the geological profiles, infiltration tests, latest water samples analyzed, and hydrogeological model were once again requested, through official communication UI-236-16 of December 9, 2016, issued by the Water Research Unit (Unidad de Investigación Hídrica). 14. Through a note dated February 14, 2017, a response to official communication UI-236-16 was received from Mr. Johnny Fung Acón. 15. On May 30, 2017, through resolution No. 771-17-TAA, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) resolved to approve (homologar) the Conciliatory Proposal (Propuesta Conciliatoria) to approve the Monitoring Plan (Plan de Monitoreo) approved by the Ministry of Health (Ministerio de Salud) through official communication DPAH-UNSSAH-403-2016, and indicated that the Ministry of Health (Ministerio de Salud) must provide semi-annual follow-up to said plan.
The parties were also summoned to the continuation of the Oral and Public Hearing (Audiencia Oral y Pública) for Thursday, July 27, 2017, to address the issue that Costa Caribeños has not complied with presenting to the TAA a hydrogeological study (under the Terms of Reference (Términos de Referencia) established by SENARA) that has the approval of SENARA. 16. Once again, clarifications on the information provided on February 14, 2017, were requested through official communication SENARA-DIGH-UI-0231-2017 of August 4, 2017, a document issued by the Water Research Unit (Unidad de Investigación Hídrica) of SENARA. To date, no new annexes have been received from Costa Caribeños. 17. After this date, SENARA has not received any notification or resolution from the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo), nor has it received new documentation from the Servicentro Costa Caribeños. 18.
That on September 29, 2021, through official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Water Research and Management (Dirección de Investigación y Gestión Hídrica) of SENARA, a response was provided to the requests made by the appellant herein in his official communications AEL-0093-2021 and MLV-053-2021, a document that was even attached by the appellant in his appeal. 19. That as mentioned in official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Water Research and Management (Dirección de Investigación y Gestión Hídrica) of SENARA, the developer of the Servicentro Costa Caribeños project, specifically its legal representative, is responsible for complying with the submission to the TAA of a hydrogeological study (under the terms of reference established by SENARA) that has the approval of SENARA, given that to date it has still not complied with the requirements of SENARA and therefore has not complied with what was ordered by the TAA.” (See report provided under oath by the respondent authority).
Of importance for the resolution of this matter, the following facts are considered not proven: a) That the respondent was notified of the brief SENARA-DIGH-UI-0231-2017, through which SENARA communicated its opinion on the annex to the hydrogeological study conducted and issued requirements (prevenciones) to be fulfilled regarding such study. b) That, as of the date of filing this appeal, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) has issued the final act (acto final) corresponding to file No. 177-13-03-TAA.
In the case at bar, the appellant alleges that since 2013, complaints have been filed for environmental contamination problems generated by Servicentro Costa Caribeños S. A., which persist to this day. He clarifies that one of these complaints refers to file No. 177-13-03-TAA processed before the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo). He indicates that the aforementioned file shows that, on March 20, 2015, SENARA received a partial hydrogeological study related to the mentioned service station; however, said agency ordered that some aspects be corrected, which was repeated in 2016 and 2017. He maintains that, by resolution No. 771-17-TAA of May 30, 2017, the Administrative Environmental Tribunal (Tribunal Ambiental Administrativo) approved (homologó) the conciliatory proposal to approve the monitoring plan endorsed by the Ministry of Health (Ministerio de Salud). He comments that the TAA convened an oral and public hearing (audiencia oral y pública) for July 27, 2017, to analyze the non-compliance by Servicio Costa Caribeños for not submitting the required hydrogeological study, in accordance with the terms of reference established by SENARA.
It states that, subsequent to the date on which the aforementioned conciliation proposal was approved, SENARA has not received any notification or resolution from the TAA, nor any documentation from the referenced service station. It maintains that over eight years ago, complaints were filed for environmental contamination caused by Servicentro Costa Caribeños S. A., without the respondent authorities having definitively resolved the situation. It requests that the appeal be granted and that the Administrative Environmental Tribunal be ordered to require the legal representative of Servicentro Costa Caribeños S. A. to fully comply with the studies required by SENARA.
From the study of the case file, it is evident that on June 7, 2013, a complaint was filed against Servicentro Costa Caribeños S. A. before the TAA, to which file no. 177-13-03-TAA was assigned, alleging that "there were failures that could have caused soil contamination." Consequently, by resolution no. 609-13-TAA of 9:25 a.m. on July 22, 2013, the Administrative Environmental Tribunal ordered the respondent party to permit inspections and analyses by the competent institutions. Furthermore, an inter-institutional commission was created, composed of SENARA, the Water Directorate, the Costa Rican Institute of Aqueducts and Sewers (ICAA), the Ministry of Health, and the Directorate of Environmental Quality Management (DIGECA).
On August 28, 2013, an ICAA official requested a six-month extension before the TAA to issue the technical studies required by resolution no. 609-13-TAA of 9:25 a.m. on July 22, 2013, which are necessary to determine whether or not there is contamination in the area's aquifers. Meanwhile, on September 12, 2021, the General Directorate of Fuel Transport and Marketing (DGTCC) issued official letter DGTCC-0384-2013, indicating that an inspection of Servicentro Costa Caribeños S. A. was conducted and it was verified that the containers were functioning correctly, and that no non-compliance compromising its safe operation was observed at that service station. Additionally, it was noted that during the winter season, flooding occurs that affects the establishment. Consequently, it was requested that the competent entities rule on the possible impacts that could be generated. Likewise, it was stated that the representatives of the respondent party provided a chemical analysis indicating no hydrocarbon contamination.
Meanwhile, on September 17, 2013, the Water Directorate reported that the inter-institutional commission had been formed since September 5, 2013, which requested that the provisions of resolution no. 609-13-TAA of 9:25 a.m. on July 22, 2013, issued by the Administrative Environmental Tribunal, be postponed until the amparo appeal processed under case file 13-006391-0007-CO was resolved, or, if the commission were to remain active, that SETENA and the DGTCC be included. For its part, on October 3, 2013, the Ministry of Health provided a copy of memorandum DGS-3732-13, signed by the Director General of Health, in response to what was required in resolution no. 609-13-TAA of 9:25 a.m. on July 22, 2013.
This Chamber observes that, through resolution no. 238-14-TAA of 2:03 p.m. on March 12, 2014, the Administrative Environmental Tribunal indicated that the filing of an amparo appeal does not prevent public bodies from exercising their competence, and therefore ordered the submission of the report previously required in ruling no. 609-13-TAA of 9:25 a.m. on July 22, 2013. Likewise, it integrated SETENA, the DGTCC, INTA, SINAC, and SENARA into the inter-institutional commission. Furthermore, the members of said commission were ordered to provide the reports required in the aforementioned resolution within a period of 10 calendar days. Similarly, it is verified that on March 21 and 28, 2021, MINAE and ICAA, respectively, submitted documents to file no. 177-13-03-TAA. Additionally, it is verified that on April 9, 2021, the Ministry of Health reported that the sanitary operating permit issued to Servicentro Costa Caribeños S. A. was revoked. It also communicated that it was subsequently verified there was no contamination, so the administrative act was lifted. Meanwhile, on April 29, 2021, MINAE requested a meeting be convened to evaluate the case information and subsequently conduct an inspection at the site of the complaint.
It is also certified that, on May 23, 2014, SENARA communicated to the Water Directorate the terms of reference for conducting a hydrogeological diagnosis (diagnóstico hidrogeológico) at the reported site. On June 10, 2014, the Water Directorate issued memorandum AT-2315-2014, noting that on May 20, 2014, an inspection was carried out at the complaint site and several recommendations were issued, including ordering the respondent party to conduct a preliminary hydrogeological diagnosis (diagnóstico preliminar hidrogeológico) in accordance with the terms of reference established by SENARA. Furthermore, on June 24, 2021, the DGTCC requested that the TAA, once the precautionary measure issued by that directorate ordering Servicentro Costa Caribeños S. A. to cease providing the public service of fuel supply until July 2, 2014, was concluded, the Administrative Environmental Tribunal assume competence regarding the application of any eventual precautionary measures.
By resolution no. 471-14-TAA of 10:20 a.m. on June 30, 2014, the Administrative Environmental Tribunal ordered the Ministry of Health, MINAE, the DGTCC, and ARESEP to exercise their competencies to prevent possible risks to life, health, and the environment. Additionally, the Minister of Health was ordered to convene the Technical Committee of Executive Decree No. 37757-S and apply the pertinent regulations to responsibly dispose of soils that may be contaminated, and conduct the preliminary evaluation of the impact or potential impact of soil, aquifer, and other contamination events. Likewise, the DGTCC was ordered to provide a copy of the hydrogeological study it had required from the respondent party. For its part, the ICAA's National Water Laboratory was asked to determine if there are indications of hydrocarbon contamination in the nearby surface water channel. Finally, SINAC was required to determine if the site corresponds to a wetland (humedal). This Chamber observes that, on July 15, 2014, the appellant requested the Administrative Environmental Tribunal to be considered an interested party within file no. 177-13-03-TAA. Meanwhile, in July 2014, ARESEP provided official letter 900-IE-2014.
This Constitutional Chamber certifies that, by resolution no. 518-14-TAA of 2:02 p.m. on July 9, 2014, the TAA ordered the director of the Public Registry of Real Property and the director of Registry Services, both of the National Registry, as well as the Mayor of Limón, to provide a series of documents. Meanwhile, through resolution no. 611-14-TAA of 7:17 a.m. on August 4, 2021, the Administrative Environmental Tribunal informed Banco Improsa S. A. of the actions in the file and granted it a period of three days to make a statement in the preliminary investigation stage. For its part, on August 5, 2014, the DGTCC issued official letter DGTCC-809-2014, requesting the TAA to include the participation of a representative of that office in the meeting ordered by resolution R-DGTCC-709-2014, in which the concessionaire would be heard. Meanwhile, on August 13, 2014, Banco Improsa S. A. appeared in the proceeding. Similarly, it is verified that on August 19, 2014, the Water Directorate reported that, on August 11, 2014, the inter-institutional commission met with representatives of the respondent company, and a meeting was subsequently held.
On September 12, 2014, the Ministry of Health reported that it was attaching the report contained in official letter DR-HC-2233-2014, which stated, among other things, that on August 8, 2014, the operating permit of the respondent party was revoked, and seals were placed to close the bay columns. Likewise, on September 23, 2014, the Water Directorate indicated that on September 12, 2014, a meeting of the inter-institutional commission was held. Additionally, it was reported that no SETENA official had participated. The Tribunal also certifies that, on October 2, 2014, the Water Directorate requested from the TAA a copy of the resolution issued in response to official letter AT-2315-2014. For its part, on October 13, 2014, the Water Directorate communicated that on October 3, 2014, a meeting of the inter-institutional commission was held. In the specific case, it is verified that, on October 15, 2014, the DGTCC sent memorandum DGTCC-DL-056-2014 to the TAA, referring to the latest findings from inspections conducted at the service station, as well as its current operational status. Furthermore, the Administrative Environmental Tribunal was requested to consider the information presented and take corresponding actions.
Through resolution no. 861-14-TAA of 9:06 a.m. on October 15, 2014, the Administrative Environmental Tribunal ordered for the second time the Ministry of Health, the DGTCC, SINAC, and the ICAA's National Water Laboratory to comply with what was ordered in ruling no. 471-14-TAA. Additionally, the respondent party was required to comply with what the corresponding entities order it. Furthermore, it is verified that, on October 21, 2014, the complainant filed a complaint before the TAA against the DGTCC "for the issuance of Resolution R-DGTCC-720 of 1:00 p.m. on August 18, 2014, by which the precautionary measure imposed on the Concessionaire Servicentro Costa Caribeños S.A., legal identification number 3-101-139783, through resolution R-DGTCC-485-2014-MINAE of May 26, 2014, which was issued in turn in compliance with resolution TAA-609-2013 of 9:25 a.m. on July 22, 2013, and 471-14-TAA of 10:20 a.m. on July 30, 2014, of the Administrative Environmental Tribunal (TAA), File ES-7-01-01-05-Servicentro Costa Caribeños." Meanwhile, on October 22, 2014, the ICAA's National Water Laboratory provided the report of the analysis results from Servicentro Costa Caribeños S. A.
On October 27, 2014, the Water Directorate issued official letter AT-4953-2014, indicating that "it does not have a comprehensive analysis of the information generated on this case, nor have the technical recommendations to the Administrative Environmental Tribunal been generated, nor could the measures in this regard be issued by the Inter-institutional Commission, because the concessionaire (respondent company) has not submitted the hydrogeological studies that generate information on the real situation of the case." A day later, the Water Directorate reported on actions taken within file no. 177-13-03-TAA. Meanwhile, on November 4, 2014, the Water Directorate provided official letter AT-5198-2014 and stated that, as of October 3, 2014, the respondent party had not submitted the hydrogeological studies requested by SENARA. Indeed, it is verified that, on November 7, 2014, the DGTCC sent memorandum DGTCC-096-2014, stating that SENARA reported that the respondent party had not conducted the required studies.
Furthermore, it was mentioned that: "As we indicated in official letter DGTCC-DL-056-2014, the results of the chemical analyses performed on the water from the observation and monitoring wells at the service station in question were reviewed by the Engineering Department of this Directorate through technical report number IF-DGTCC-15-09-2014, dated September 17, 2014, and the presence of hydrocarbons was verified above the reference values used in Article 21 of Executive Decree 33601-MINAE-S, the Regulation on Discharge and Reuse of Wastewater. For this reason, this Directorate recommends that the Administrative Environmental Tribunal apply the administrative actions that are necessary according to its competencies, in the processing of the administrative procedure of a sanctioning nature, for contamination of the environment (…)." This Constitutional Court appreciates that, on November 13, 2014, the respondent party requested before the TAA that it be allowed to provide a hydrogeological study before any ruling was issued.
On December 1, 2014, the Ministry of Health attached memorandum DR-HC-3126-2015, containing a follow-up report issued by the regional director of the Health Governance Huetar Caribe. Through resolution no. 1117-14-TAA issued at 7:02 a.m. on December 3, 2014, by the Administrative Environmental Tribunal, it was indicated that, prior to responding to the request made by the respondent party on November 13, 2014, it was necessary for it to provide that office with the studies requested by SENARA in official letter DIGH-UI-147-14. Additionally, orders were issued to the Minister of Health and the director of the DGTCC. It is certified that, on December 5, 2014, the complainant party made statements within file no. 177-13-03-TAA.
On the other hand, on December 15, 2014, SINAC reported that the establishment of the respondent party is not located on land classified as wetlands (humedales). Furthermore, it was stated: "According to (sic) the observed characteristics and those appreciable photographically with respect to the unnamed watercourse, it is evident that it currently constitutes a drain for graywater and even blackwater and as drainage that captures surface runoff caused by rainfall. Likewise (sic), no species were observed that would indicate that said watercourse corresponds to a river, stream, or creek, and both sides of the aforementioned unnamed watercourse are occupied by residential infrastructure. Therefore, there are no concrete elements to proceed with the economic valuation of the environmental damage within the framework of the present case. Added to this, the cited fuel dispensing establishment has been visually observed for over 9 years (Map 1) approximately, showing the existence of said infrastructure, therefore, the damage valuation cannot be established (…)." Meanwhile, on January 6, 2015, the respondent party requested an extension of the deadline indicated in resolution no. 1117-17-TAA issued by the Administrative Environmental Tribunal.
On January 13, 2015, the Ministry of Health attached the report issued by the regional director of the Health Governance Huetar Caribe. Meanwhile, on January 19, 2015, the Ministry of Health reported that it activated the Technical Committee on Contaminated Site Management and that two meetings had been convened. It also stated that the respondent party had not provided the hydrogeological study with SENARA's approval.
It is evident from the evidence that, on March 6, 2015, the Ministry of Health communicated that, given the absence of compliance with requirements by the respondent company, it was awaiting its compliance to convene the Technical Committee on Contaminated Site Management. On March 19, 2015, the respondent party provided a hydrogeological study and results of chemical analyses. Furthermore, it requested the dismissal of the complaint. Consequently, through resolution no. 325-15-TAA issued at 10:24 a.m. on March 26, 2015, the Administrative Environmental Tribunal consulted SENARA as to whether it approved the hydrogeological study provided by the respondent party, clarifying that the report should be sent promptly. Likewise, the Ministry of Health was required to coordinate with the members of the Technical Committee of Executive Decree No. 37757-S, in order to formulate an opinion on the referenced study and to "indicate the corrective actions that must be implemented." In addition to the above, on April 14, 2015, the Ministry of Health provided official letter DPAH-UNSSAH-111-2015, in which an opinion was issued in accordance with the Committee's assessments.
By resolution no. 414-15-TAA of 2:02 p.m. on April 16, 2021, the Administrative Environmental Tribunal declared the appellant as having appeared in the file and dismissed the complaint he filed against the DGTCC. Additionally, the DGTCC was ordered to provide a certified copy of all laboratory analysis results that had found traces of hydrocarbons or similar substances in the monitoring and observation wells pertaining to the reported service station. Likewise, through resolution no. 415-15-TAA of 2:07 p.m. on April 16, 2015, the TAA ordered SENARA —granting it 10 calendar days— and the DGTCC to comply with what was ordered in ruling no. 325-15-TAA of March 26, 2015. Furthermore, SETENA was ordered to provide a report concerning the "(-) File number and environmental feasibility (viabilidad ambiental) resolution for the Costa Caribeños Service Station (… ) (-) Content, scope, and limitations of the approval of the environmental impact assessment (evaluación de impacto ambiental).
(-) Detailed summary of the environmental oversight, monitoring, audit, and follow-up of the project, especially regarding the alleged contamination of soil, subsoil, and water resources (groundwater and/or surface water) by hydrocarbons or similar substances. (-) Current status of the project before SETENA (…)." As a result of the above, on April 21, 2015, SENARA informed the TAA that the respondent company had recently provided a hydrogeological study for contamination risk and chemical analysis results, for evaluation purposes. Additionally, it indicated that this document was in the study and assessment phase, and once the pertinent information was obtained, it would be communicated to the TAA. On May 6, 2021, the Ministry of Health attached note DR-HC-1052-2015 issued by the Regional Directorate of Health Governance Huetar Caribe. Meanwhile, by resolution no. 555-15-TAA of 2:02 p.m. on May 13, 2015, the TAA ordered for the third time to the Ministry of Health and SENARA, and for the second time to SETENA, to comply with the provisions in resolutions "325-15-TAA and 415-15-TAA," within 10 calendar days.
In the sub iudice matter, it is certified that, on May 14, 2015, the DGTCC attached certified information regarding the results of chemical laboratory analyses conducted on the premises of the service station owned by Servicentro Costa Caribeños S. A. On June 12, 2015, the Ministry of Health issued memorandum DPAH-UNSSAH-0197-15, noting that, on June 8, 2015, SENARA provided official letter UI-127-15, indicating that the hydrogeological study provided by the respondent party was visibly incomplete. Furthermore, it was indicated that "this Directorate maintains the criterion that what is established in official letter DPAH-UNSSAH-111-15, sent to this Tribunal via DPAH-UNSSAH-112-15, must be complied with in order to verify the level of soil contamination in accordance with Decree 37757-S, and to request Costa Caribeños to make the corrections recommended by SENARA in UI-127-15." Indeed, it is verified that, on July 7 and 17, 2015, the respondent party provided evidence, including, "Report on the current state of the pit.
Tank tightness test. Manifest for delivery of contaminated material to Cemex for proper treatment. Copy of the procedure conducted before the Minaet Environmental Comptroller." Through resolution no. 979-15-TAA of 10:49 a.m. on August 7, 2015, the Administrative Environmental Tribunal ordered for the third time that SETENA comply with what was indicated in resolutions "415-15-TAA and 555-15TAA." Likewise, the respondent party was ordered to provide "an updated compliance report regarding the administrative act of the Ministry of Health No. DPAH-UNSSAH-11-2015 (…), official letter SENARA no. UI-127-15 of May 13, 2015 (…), and administrative act No. DPAH-UNSSAH-0198-15 of June 12, 2015 (…), from the Ministry of Health (…)." For its part, the director of the Directorate for the Protection of the Human Environment of the Ministry of Health was ordered to provide a report on the degree of compliance with the administrative acts issued by that ministry, as well as the measures adopted in case of non-compliance; likewise, it was required to "explain what the content of the opinion issued by the Technical Committee has been regarding the disposal of the presumably contaminated soils that was allegedly carried out." Meanwhile, the general manager of SENARA was asked to issue an updated report on compliance by the respondent company, as well as to indicate whether or not the service station is located in an aquifer recharge area and/or in an area of considerable water vulnerability. Finally, the DGTCC was required to report whether the tightness of the tanks, pipes, and other implements at the reported service station is guaranteed.
It is extracted from the evidence provided that, on September 1, 2015, SENARA communicated that the respondent party had not provided the observations requested in official letter DIGH-208-15 of June 8, 2015. Furthermore, it reported that the establishment of the respondent party is located within the study area for the Moín aquifer, specifically in zone 8 of high vulnerability. It is also verified that, on September 4, 2015, the respondent party stated it was providing the expansion and correction of the terms of reference requested by SENARA regarding the hydrogeological study. Furthermore, it made multiple statements and requested that the competent authorities be required to issue an opinion on the large amount of evidence provided. On September 4, 2015, the Ministry of Health issued memorandum DPAH-UNSSAH-329-2015, detailing various actions taken regarding the case. Similarly, it was indicated that it is necessary to conduct soil sampling in order to identify the area contaminated with hydrocarbons outside the pit and the depth; this, for the purposes of determining whether a remediation plan should be applied.
Likewise, it was stated that it is necessary for the respondent company to provide the clarifications requested by that ministry and by SENARA regarding the hydrogeological study. Indeed, on September 23, 2015, the respondent party alleged it provided "Results of chemical analyses of water samples from the monitoring wells taken on September 8 at Servicentro Costa Caribeños in the presence of Senara and the Directorate for the Protection of the Human Environment." On December 9, 2015, the DGTCC requested the TAA to report on the status of the process, in accordance with what was ordered by this Constitutional Chamber in judgment no. 2015003170 of 9:30 a.m. on March 6, 2015.
Through resolution no. 1529-15-TAA of 11:49 a.m. on December 10, 2015, the Administrative Environmental Tribunal ordered SENARA to provide an updated report on compliance by the respondent with what was required by that Secretariat in official letter UI-127-15, for which it requested it to indicate whether or not it endorsed the corrected version of the hydrogeological study. Likewise, the Directorate for the Protection of the Human Environment of the Ministry of Health was ordered to issue a report on the degree of compliance with the administrative acts issued by that ministry and by SENARA, on the measures adopted in case of non-compliance, as well as to communicate whether there is evidence of soil and/or subsoil contamination, or eventually, of water resources. Similarly, SETENA was ordered for the fourth time to comply with the provisions of resolutions 415-15-TAA, 555-15-TAA, and 979-15-TAA. Finally, the DGTCC was ordered for the second time to submit a report indicating whether the tightness of the tanks, pipes, and other implements at the service station was guaranteed, as well as whether the presumably contaminated soils had been extracted and disposed of in an environmentally appropriate manner.
On December 14, 2015, the complainant filed a complaint before the TAA against MINAE, the DGTCC, and SETENA. On December 17, 2015, the Ministry of Health provided official letter DPAH-UNSSAH-446-2015 and reported that on November 30, 2015, the monitoring plan was received from the respondent company, and it would proceed to review it to issue the corresponding opinion. Furthermore, it noted that it had not received a copy of any opinion issued by SENARA. For its part, on January 18, 2016, the general manager of SENARA stated that: "The respondent company, on September 7, 2015, submitted an annex to the Hydrogeological Study; however, it did not fulfill all the requirements requested in official letter UI-127-15, which is why, again through official letter DIGH-340-15 dated September 30, 2015, official letter UI-245-15 of September 30, 2015, was made known, by which it is requested to fulfill all the terms of reference to issue the institutional opinion.
However, despite the warning from my represented party, the respondent company has not, to this date, complied with the warning contained in the attached official letter UI-245-15." The Tribunal finds it proven that, on February 12, 2016, the respondent party indicated that it had filed a nullity request before SENARA regarding the notifications of memoranda SENARA DGIH-340-15 and UI-245-15. Meanwhile, on April 7, 2016, the complainant filed a contempt proceeding before this Chamber and before the TAA regarding what was ordered in the resolution issued in case file 14-018632-0007-CO. Furthermore, it is certified that, through resolution no. 376-16-TAA of 10:49 a.m. on April 12, 2016, the Administrative Environmental Tribunal dismissed the complaint filed by the appellant on December 14, 2015.
Through resolution no. 377-16-TAA of 10:51 a.m. on April 12, 2016, the Administrative Environmental Tribunal ordered the initiation of an ordinary administrative proceeding against Servicentro Costa Caribeños S. A. and its representative, Johnny Fung Acón, for the following acts: "Carrying out by itself and/or through another and/or permitting, and/or not preventing, the contamination with hydrocarbons of the soil, subsoil, surface water, and groundwater pertaining to the aforementioned property and its area of direct and indirect influence. Total or partial non-compliance with the administrative acts of the DGTCC, this Tribunal, and the Ministry of Health referenced in the Recitals of this Resolution, by which the respondent was ordered to: 1) Present to this Tribunal a hydrogeological study (under the Terms of Reference established by SENARA) that had SENARA's approval. 2) Present to the Ministry of Health the corrections and/or clarifications to the hydrogeological study that were pertinent, as indicated by the Ministry of Health." Furthermore, the parties were summoned to an oral and public hearing to be held on June 24, 2016.
On April 29, 2016, the respondent party indicated it was providing a copy of the corrections for the fulfillment of all the terms of reference for the hydrogeological study conducted at Servicentro Costa Caribeños S. A. On May 16, 2016, the special administrative proxy of Banco Nacional requested that the banking entity be considered a third party with a legitimate interest. On May 12, 2016, the secretary general of the National Environmental Technical Secretariat attached memorandum SG-ASA-0151-2016, containing the information required in resolution no. 1529-15-TAA.
On June 24, 2016, the complainant provided the arguments for the oral hearing scheduled for that same day. That same day, the legal representative with full powers of general attorney-in-fact without limit of sum for Servicentro Costa Caribeños S. A. requested that the TAA reschedule the hearing set for that day, because he was hospitalized. Furthermore, on June 24, 2016, the DGTCC provided memorandum DGTCC-DL-173-2016, through which it referred to what was stated in resolution no. 377-16-TAA issued by the TAA and clarified that a formal written complaint filing was never submitted, but rather that it communicated to that Tribunal actions exercised within the scope of its competencies. Consequently, at 9:20 a.m. on June 24, 2016, the TAA issued minutes of the oral and public hearing held that day, stating that, in order not to cause defenselessness to the respondent party, given that its legal representative was hospitalized, the hearing was suspended.
Meanwhile, by resolution no. 757-16-TAA of 10:30 a.m. on June 24, 2016, the TAA corrected the minutes of the oral hearing and recorded Banco Improsa S. A. as present at said proceeding. It is observed that, on June 30, 2016, the legal representative of the respondent party provided a copy of the medical incapacity issued to him between June 23 and 26, 2016. For its part, through resolution no. 837-16-TAA of 9:14 a.m. on July 6, 2016, the Administrative Environmental Tribunal rescheduled the oral hearing for September 9, 2016.
This specialized venue certifies that, on September 8, 2016, the respondent party requested before the Administrative Environmental Tribunal the approval (homologación) of the soil monitoring, sampling, and analysis plan approved by the Ministry of Health in resolution DPAH-UNSSAH-403-2016.
Furthermore, it is noted that, at 9:17 a.m. on September 9, 2016, the TAA issued a record of the oral and public hearing held within file No. 177-13-03-TAA, and it was indicated that the continuation of the hearing was set for December 7, 2016. On September 27, 2016, the Directorate of Protection of the Human Environment of the Ministry of Health notified the TAA that a change had occurred in the appointment of the technical committee on contaminated site management and the monitoring of the monitoring plan concerning the respondent. On November 14, 2016, the respondent requested an extension of the conciliation deadline granted at the hearing held on September 9, 2016. The following day, the Directorate of Protection of the Human Environment of the Ministry of Health attached official communication DPAH-UNSSAH-468-2016. Furthermore, it was indicated that the third monitoring report was received, in which it is observed "that there are no extensive risk zones; free phase was only observed in piezometer PX-01 (with a value of 27 mh/l of volatile organic compounds in the dissolved phase sample).
The need to maintain activities conducive to eliminating the free phase, as well as eliminating and monitoring flammability risks through an Action Plan, is observed, which it is recommended be submitted to this Court and the Ministry of Health within a period of 10 days. This Directorate is awaiting the pronouncement of the Health authorities in order to know their opinion on the donation proposed by Mr. Fung Acón, procedures that have already been initiated." In the case at hand, it is established that on November 29, 2016, the Minister of Health reported: "In response to the note of October 20, 2016, signed by Mr. Johnny Fung Acón (Conciliation Agreement Request), in relation to the case of contamination of Costa Caribeños (Administrative File No. 177-13-03-TAA), and following up on official communication DPAH-UNSAAH-484-2016, we respectfully inform this Court that this Ministry has granted its consent to receive a refrigerated container, fully equipped as an office, to be used by the Hospital Polivalente de Día service of the Hospital Tony Facio.
Said asset responds to the need to carry out a pilot plan by the Costa Rican Social Security Fund, conducted by said Hospital, which will greatly benefit the preventive and curative actions supervised by this Ministry. Dr. Johnny Fung Acón must be notified, if this Court deems it appropriate, to coordinate delivery with Dr. Deiver Vidal, Director of Hospital Tony Facio." Likewise, it is credited that, by resolution No. 1604-16-TAA of 2:51 p.m. on November 29, 2016, the Administrative Environmental Tribunal deemed it necessary that, prior to the continuation of the oral hearing, the respondent had submitted to the Ministry of Health an action plan for the elimination of flammability risks that bears the approval of that ministerial entity, for which reason it suspended the hearing scheduled for December 7, 2016. Furthermore, it ordered the director of the Directorate of Protection of the Human Environment and the head of the Standardization Unit of Health Services in the Human Environment, both of the Ministry of Health, to report whether the flammability risk action plan submitted by the respondent meets the established requirements.
Likewise, it was pointed out that the TAA would pronounce at the appropriate time on the consent for the donation of a container to take place. Thus, on December 6, 2016, officials of the Ministry of Health submitted brief DPAH-UNSAAH-505-2016, through which reference was made to the flammability risk action plan submitted by the respondent. The following day, the respondent submitted the fourth update of the monitoring plan corresponding to the action plan for elimination of flammability risks.
From the evidence on file, it follows that, on February 15, 2015, the respondent submitted the first monitoring of phases and pumping in well PX01 in accordance with the action plan for elimination of flammability risks. Furthermore, it affirmed that "the corrections and clarifications to the Hydrogeological Study requested by Senara via official communication No. UI-236-16 are submitted." By resolution No. 476-17-TAA of 1:02 p.m. on April 17, 2017, the Administrative Environmental Tribunal made known to the complainant the conciliation plan proposed within the file, so that he could make the observations he deemed pertinent. Consequently, on April 19, 2017, the appellant requested that the conciliation plan proposed by the respondent be rejected. Furthermore, he requested that an economic valuation of the damage be ordered. Meanwhile, on April 19, 2017, the General Directorate of Transport and Fuel Commercialization issued brief DGTCC-DL-64-2017, through which it pronounced on the conciliation agreement proposed by the complainant.
In this regard, it was indicated that: "The DGTCC will not determine or judge the existence or valuation of environmental damage, nor the knowledge and acceptance of proposals for homologation of conciliation agreements, which are solely the competence of the Administrative Environmental Tribunal (...) Regarding aspects that are indeed within the DGTCC's competences, it is reiterated that after analyzing the documents and information on file, as well as the oversight by the Engineering Department of the DGTCC, the concessionaire's compliance with the technical provisions that must be met by the facilities of the service station has been verified, based on the provisions of Executive Decree 30131-MINAE-S Reglamento para la Regulación del Sistema de Almacenamiento y Comercialización de Hidrocarburos." Likewise, this Chamber verifies that, on June 19, 2017, the complainant stated that a report issued by the company Futuris Consulting S.A. concerning the second and third monitoring of gases and pumping in PX01 was submitted "in order to fully comply with the Monitoring Plan and with the final recommendation of resolution DPAH-UNSSAH-098-2017 of the Directorate of Protection of the Human Environment (...)." Furthermore, it requested the approval of the proposed conciliation plan.
By resolution No. 771-17-TAA of 3:44 p.m. on May 30, 2017, the Administrative Environmental Tribunal resolved: "FIRST: To homologate the Conciliation Proposal to approve the Monitoring Plan approved by the Ministry of Health through DPAH-UNSSAH-403-2016 dated September 2, 2016, issued by the Standardization Unit of Health Services in the Human Environment of the Directorate of Protection of the Human Environment of the Ministry of Health. SECOND: Mr. Johnny Fung Acón, bearer of ID card 1-0837-329, legal representative of the company named Servicentro Costa Caribeños S.A., is ordered to comply with all the obligations established herein and not to carry out activities contrary to the Law. The Ministry of Health, in accordance with its competences, must provide semi-annual follow-up to said Plan. Said Ministry must be informed that only in the event of finding any non-compliance during those years, it must notify this Court to assess whether or not to continue the ordinary administrative procedure.
THIRD: Mr. Johnny Fung Acón, bearer of ID card 1-0837-329, legal representative of the company named Servicentro Costa Caribeños S.A., is ordered to comply with the provisions of the eleventh whereas clause of this resolution (...) FOURTH: That Mr. Johnny Fung Acón, bearer of ID card 1-0837-329, legal representative of the company named Servicentro Costa Caribeños S.A., is indicated [sic] that in case of non-compliance with any of the points indicated herein, the homologation carried out will be rendered void and the ordinary administrative procedure will continue. FIFTH: Summon the parties to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, at 1:30 p.m. at the headquarters of the Administrative Environmental Tribunal, maintaining as the only imputed charge that of not having complied with '1) Present to this Court a hydrogeological study (under the Terms of Reference established by the SENARA), bearing the approval of SENARA,' the foregoing in accordance with resolution No. 377-16-TAA of ten fifty-one hours on April twelfth, two thousand sixteen (...)." It is also credited that, on July 27, 2017, the special judicial attorney of the respondent submitted a copy of the receipt for the donation form of a container to the Costa Rican Social Security Fund.
At 2:03 p.m. on July 27, 2017, the TAA issued a record of the continuation of the oral and public hearing in which it was recorded: "At this act, the continuation of the oral and public hearing proceeds. Resolution No. 771-17-TAA of fifteen hundred forty-four hours on May thirty, two thousand seventeen is read, whereby the imputation of charges is made, of a single charge, in relation to [sic] Resolution No. 377-16-TAA of ten fifty-one hours on April twelve, two thousand sixteen (...). With no further business to address, the session is adjourned at fifteen hundred fifty-six hours, the file being ready for the issuance of the final act." Furthermore, from the audio of said hearing it is clear that the TAA clarified that the file was ready for the issuance of the final act "with the exception that the corresponding approval of the hydrogeological study be submitted by the SENARA within 30 business days." Of importance for the resolution of this appeal is that, on August 9, 2017, SENARA incorporated into file No. 177-13-03-TAA brief SENARA-DIGH-UI-0231-2017 in which it communicated to the respondent its opinion on the annex to the hydrogeological study submitted on February 15, 2017, and issued requirements to be fulfilled regarding said study.
Likewise, it clarified that "To issue an opinion on the part of the Institution, all of the requested Terms of Reference must be met. Therefore, it is requested that the necessary points be resolved in order to issue an opinion on the part of the institution." However, from the study of the case records, no probative material is gathered that allows establishing that the aforementioned brief SENARA-DIGH-UI-0231-2017 was notified to the respondent.
On the other hand, on August 14, 2017, the special judicial attorney of the respondent stated: "As of today, Geologist María Magdalena Monge Cordero and Geologist Roberto Ramírez Chavarría of the Water Research and Management Unit of the National Groundwater, Irrigation and Drainage Service have not notified my client regarding the fulfillment of the corrections and clarifications to the Hydrogeological Study submitted since February 14, 2017, and which they undertook to respond to in the past hearing (held at one thirty in the afternoon on July twenty-seventh, 2017) the following week, that is, from July 31 to August 4, 2017. With this, my client finds it impossible to comply within the one-month period indicated by your authority in the event that Senara requires the submission of another requirement, such as tests and analyses, which require a prudential time to be processed. Given that the hydrogeological study is complete, that approval has already been granted by the Standardization Unit of Health Services in the Human Environment of the Ministry of Health, that the consulting firm Futuris Consulting indicated [sic] in its latest report on file as a recommendation, textually, 'Since the hydrocarbons from Site 1 do not represent a risk to health or to groundwater, and because the remaining concentrations are very low, it is considered unnecessary to conduct further investigation or remediation,' I request that it be declared [sic] that it is the Administration, through Senara, that due to its delay has not resolved in time the request for the review of the corrections, a procedure that should be agile, simple, and routine, and that your authority take into account what is stated in this brief, since there is no non-compliance by my client with the submission of the Hydrogeological Study, but rather there is non-compliance by Senara in carrying out the review thereof." Likewise, in the case at bar, it is verified that, on August 26, 2021, the appellant sent official communication AEL-0093-2021 to SENARA and to the General Directorate of Transport and Fuel Commercialization, through which he stated: "(...) please certify for jurisdictional and constitutional legal purposes, the current physical, sanitary, and environmental state of the Servicentro Costa Caribeños in follow-up and full compliance with the technical studies required by the SENARA since July 10, 2013, in the processing of the Amparo Appeal File No. 13-006391-0007-CO, filed against the gas station Servicentro Costa Caribeños S.A. FIRST: Subject to a better technical opinion, duly substantiated, we consider that the relevant steps must be coordinated to ensure that there is due scientific and legal certainty that there is no danger or threat of serious or imminent damage to biodiversity elements, because if that were the case, we respectfully request that you send me a certified copy of the updated technical reports that so establish (...) PETITION: Given that what was ordered by the Constitutional Chamber is of mandatory compliance for the Directorate of Transport and Fuel Commercialization of MINAE (or whoever holds that office), applying the principle of good faith that should govern the acts of public administration, we assume: a) That what was ordered by the Constitutional Chamber, since July 2013, would have already been amply fulfilled by the Directorate of Transport and Fuel Commercialization of MINAE (or whoever holds that office).
If this compliance is true, we request that this compliance be certified, indicating based on the provisions of Articles 11, 28, and the final paragraph of 46 of the Political Constitution, expressly what those tests are that are on file in the administrative record, dates on which they were carried out, responsible officials, and specific actions taken, as well as the follow-up tasks that the Directorate of Transport and Fuel Commercialization of MINAE (or whoever holds that office) has carried out in compliance with the Judgment of the Constitutional Chamber, to prove that as of today there are no threats of contamination of the aquifers from fuel leaks at the repeatedly cited service station. b) If the exculpatory evidence proving compliance with its constitutional obligations by Servicentro Costa Caribeños, and concomitantly and jointly by the Directorate of Transport and Fuel Commercialization of MINAE (or whoever holds that office), does not exist in the respective administrative file, we request that it be certified what corrective actions the General Directorate of Transport and Fuel Commercialization has ordered to be carried out to guarantee the Limón community that their health is being protected, and what are those proactive, concrete, and specific measures that the Directorate of Transport and Fuel Commercialization of MINAE (or whoever holds that office) has taken to comply with the provisions of Article 50 of the Constitution." Similarly, on August 26, 2021, the complainant addressed brief MLV-0053-2021 to SENARA, through which he expressed: "(...) Ref: File 184-2013.
Servicentro Costa Caribeños (...) I appear before you to formally request an integral copy of the hydrocarbon sampling and analysis in water, broken down for the compounds requested by SENARA for (Benzene, Toluene, Ethylbenzene, Xylene, Benzo alpha Pyrene, and Polycyclic Aromatic Hydrocarbons) in wells PEZ, PD, Pc, PX02, PB, PX01, PA, P2, and PXO3 that are contained in the reference file (...)." As a result of the foregoing, on August 31, 2021, the Director General of the DGTCC indicated before the TAA "Mr. [Name 001] provides official communication SENARA-DIGH-UI-0231-2016; said documentation is transferred for whatever is appropriate in accordance with the law. I request that this directorate be informed of the current status of said file and whether there is any order issued to the DGTCC pending compliance." For its part, on September 29, 2021, SENARA issued brief SENARA-DIUG-UI-244-2021 to the appellant, by which it stated: "Hereby, a response is given to notes AEL-0093-2021 and MLV-0053-2021, submitted by Mr.
Marco Vinicio [Name 001]. Due to a storage matter in the Central Archive of SENARA, the requested response is given again, as more updated information is available on the Costa Caribeños case. In note AEL-0093-2021, the following is requested: (...) In this regard, the SENARA issued the terms of reference that the Costa Caribeños Service Station had to comply with to prepare the hydrogeological study at the site, on May 23, 2014, via official communication DIGH-Ul-147-14, sent to the inter-institutional commission of the case in question. On March 20, 2015, the Hydrogeological Study was received from Mr. Johnny Fung Acón, legal representative of the Servicentro Costa Caribeños. The study was conducted by Mr. Eduardo Hernández, and for it, official communication UI-127-15 was prepared, where it was requested to address some aspects of the study. On September 7, 2015, an annex to the Hydrogeological Study was received from Mr.
Johnny Fung Acón. For the same, it was indicated, via official communication UI-245-15 on September 30, 2015, that there were still aspects of the study that needed to be addressed. Through resolution No. 377-16-TAA of April 12, 2016, the Administrative Environmental Tribunal summoned all parties to an oral and public hearing on June 24, 2016, so that each party could defend their theses regarding what is imputed to the respondents, however, this hearing was suspended and rescheduled for September 9, 2016, via resolution No. 837-16-TAA of July 6, 2016. On May 2, 2016, another annex was received from Costa Caribeños, and once again, clarifications to the noted information are requested, via Official Communication UI-112-16 of June 22, 2016. SENARA became aware that the Ministry of Health, via official communication DPAH-UNSSAH-403-2016, approved a monitoring, sampling, and soil analysis plan for this project, and via notes of September 12, 2016, and November 10, 2016, Mr.
Johnny Fung Acón requests homologation by SENARA. However, clarifications to the information are once again requested, via Official Communication UI-236-16 of December 9, 2016. Via a note of February 14, 2017, a response is received to official communication UI-236-16, and once again clarifications are requested via official communication SENARA-DIGH-UI-0231-2017 of August 4, 2017. To date, no new annexes have been received from Costa Caribeños. On May 30, 2017, via resolution No. 771-17-TAA, the Administrative Environmental Tribunal resolves to homologate the Conciliation Proposal to approve the Monitoring Plan approved by the Ministry of Health via official communication DPAH-UNSSAH-403-2016, and indicates that the Ministry of Health must provide semi-annual follow-up to said plan. The parties are also summoned to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, to address the issue that Costa Caribeños has not complied with presenting to the TAA a hydrogeological study (under the Terms of Reference established by the SENARA) that bore the approval of SENARA.
After this date, the SENARA has not received any notification or resolution from the Administrative Environmental Tribunal, nor has it received new documentation from the Servicentro Costa Caribeños. In note MLV-0053-2021, the following is requested: (...) Regarding this request, the remaining information to complete the copy of the requested file will be sent shortly by email from Mrs. Marlen Obando, secretary of the Directorate of Water Research and Management (...)." It should be noted that in the case under review, it is verified that, after the respondent authorities were notified of the resolution granting leave to proceed in this appeal—an event that occurred on October 21, 2021—by resolution No. 1442-2021-TAA of 10:00 a.m. on October 25, 2021, the Administrative Environmental Tribunal resolved: "FIRST: That this Court deems it pertinent to verify compliance with what was Homologated by Resolution No. 771-17-TAA of fifteen forty-four hours on May thirtieth, two thousand seventeen, therefore Dr. Daniel Salas Peraza, in his capacity as Minister of Health, or whoever holds that office, is admonished to report on compliance by Servicentro Costa Caribeño S.A. (...) with the Monitoring Plan Homologated by this Court (...) SECOND: That in view of Official Communication SENARA-DIGH-UI-0231-2017 filed on October 9, 2017, which states: (...) the brief filed on August 14, 2017, by Ms.
Liliana Navarrete Porras, in her capacity as special attorney of Servicentro Costa Caribeños, S.A., (...); as well as Official Communication DGTCC-DL-2021-130 filed on August 31, 2021, and signed by Mr. Diego Sojo Obando, in his capacity as Director General of the DGTCC (...), this office deems it advisable to have elements that allow it to clarify the real truth of the facts, in the present administrative file (...) THIRD: That from the analysis of administrative file No. 177-13-03-TAA, this Court considers it pertinent to request a report, for the purpose of establishing the real truth; therefore, this Office, prior to issuing the Final Act (...) as evidence for better resolution, resolves to request Geól. Roberto Ramírez Chavarría, in his capacity as Director of Water Research of the National Groundwater, Irrigation and Drainage Service (SENARA); or whoever holds that office, to report: a. whether the Company Servicentro Costa Caribeños S.A., legal ID 3-101-1139783, submitted the information requested via Official Communication SENARA-DIGH-UI-0231-2017 dated August 4, 2017 (...); if affirmative, indicate whether the Hydrogeological Study conducted by the aforementioned company bears the Approval of the National Groundwater, Irrigation and Drainage Service.
The foregoing within a period of three business days counted from the next business day following notification of this resolution (...)." Therefore, on October 28, 2021, the director of the Directorate of Water Research and Management of SENARA addressed brief SENARA-DIGH-0146-2021 to the TAA, through which he indicated: "(...) 15. On May 30, 2017, through resolution No. 771-17-TAA, the Administrative Environmental Tribunal resolves to homologate the Conciliation Proposal to approve the Monitoring Plan approved by the Ministry of Health via official communication DPAHUNSSAH-403-2016, and indicates that the Ministry of Health must provide semi-annual follow-up to said plan. The parties are also summoned to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, to address the issue that Costa Caribeños has not complied with presenting to the TAA a hydrogeological study (under the Terms of Reference established by the SENARA) that bore the approval of SENARA. 16.
Once again, clarifications to the information submitted on February 14, 2017, are requested via official communication SENARA-DIGH-UI-0231-2017 of August 4, 2017, a document issued by the Water Research Unit of SENARA. To date, no new annexes have been received from Costa Caribeños. 17. After this date, the SENARA has not received any notification or resolution from the Administrative Environmental Tribunal, nor has it received new documentation from the Servicentro Costa Caribeños. 18. That on September 29, 2021, through official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Water Research and Management of SENARA, a response was given to the requests made by Mr. [Name 001], appellant in his official communications AEL-0093-2021 and MLV-053-2021. 19. That as mentioned in official communication SENARA-DIGH-UI-244-2021, issued by the Directorate of Water Research and Management of SENARA, the developer of the Servicentro Costa Caribeños project, specifically its legal representative, is responsible for complying with the submission to the TAA of a hydrogeological study (under the terms of reference established by the SENARA) that bears the approval of SENARA, noting that to date it has still not met the SENARA's requirements and therefore has not complied with what was ordered by the TAA.
PETITION: The Company Servicentro Costa Caribeños S.A., legal ID 3-101-1139783, has not submitted the annexes of the information requested via Official Communication SENARADIGH-UI-0231-2017 dated August 4, 2017, as the foregoing has not been fulfilled, the National Groundwater, Irrigation and Drainage Service has not APPROVED the Hydrogeological Study conducted by the aforementioned company." In the report rendered under oath by the general manager of SENARA, it was recorded that: "1. The SENARA issued the terms of reference that the Servicentro Costa Caribeños had to comply with to prepare the hydrogeological study at the site, on May 23, 2014, via official communication DIGH-UI-147-14, sent to the Inter-institutional Commission of the case in question. Prior to this official communication, on May 20, 2014, an inspection was conducted at the service station in question, and official communication DIGH-UI-149-14 was issued with what was observed during the visit. 2.
On September 25, 2014, Mr. Johnny Fung Acón sends documents to prove to SENARA that there is no hydrocarbon contamination; however, the evidence presented shows high levels of hydrocarbons in observation and monitoring wells. 3. On October 8, 2014, a note is received from Mr. Johnny Fung Acón, where he requests a reduction in the number of piezometers to be made at the station. He also submitted a presentation made by geologist Emma Tristán, regarding a precautionary measure issued by the DGTCC. 4. In official communication UI-294-14 of October 17, 2014, it is indicated to Mr. Johnny Fung Acón that hydrocarbon evidence is found in the observation and monitoring wells of the fuel station, and that the proposal to reduce requirements is not viable and the analyses requested in official communication DIGH-UI-147-14 must be carried out to evaluate the site conditions. 5. On October 22, 2014, SENARA scheduled the start of the requested drilling; however, it was not possible to proceed with the drilling machine, so SENARA rescheduled the start of this activity.
By November 26, 2014, the drilling that is part of the hydrogeological study requested by SENARA began. 6. On January 15, 2015, the SENARA supervised the taking of water samples at the 5 requested sites, together with the Ministry of Health, and on-site inspection record No. HC-ARS-L-00209-2015 was issued. 7. On March 20, 2015, the Hydrogeological Study was received from Mr. Johnny Fung Acón, legal representative of the Servicentro Costa Caribeños. The study was conducted by Mr. Eduardo Hernández, and for it, official communication UI-127-15 was prepared on May 13, 2015, by the Research Unit of SENARA, where the developer was requested to address aspects of the study such as geological profiles, drilling information, clarification of provided hydraulic parameters, definition of the hydrogeological model, water sample results, and review of vulnerability calculations. 8. On September 7, 2015, an annex to the Hydrogeological Study was received from Mr.
Johnny Fung Acón. For the same, it was indicated, via official communication UI-245-15 on September 30, 2015, that there were still aspects of the study that had not been addressed. 9. Through resolution No. 377-16-TAA of April 12, 2016, the Administrative Environmental Tribunal summoned all parties to an oral and public hearing on June 24, 2016, so that each party could defend their theses regarding what is imputed to the respondents, however, this hearing was suspended and rescheduled for September 9, 2016, via resolution No. 837-16-TAA of July 6, 2016. 10. On April 29, 2016, another annex was received at SENARA from Costa Caribeños, and once again, via Official Communication UI-112-16 of June 22, 2016, the Research Unit of SENARA requests clarifications from the developer on the geological profiles, the infiltration tests carried out, provided hydraulic parameters, hydrocarbon analysis results that were not provided, and the hydrogeological model. 11.
On July 19, 2016, official communications DPAH-UNSSAH-330-2016 and DPAH-UNSSAH-331-2016 were received, where the Ministry of Health approves the "First Update to the Monitoring, Sampling, and Analysis Plan for soils and groundwater," prepared by Alexander Goyenaga dated May 20, 2016, sent by Emma Tristán Montero of Futuris Consulting S.A. 12.
On August 18, 2016, the Ministry of Health partially approved the “Second Update to the Monitoring, Sampling and Analysis Plan for Soils and Groundwater,” by means of official letter DPAH-UNSSAH-379-2016. 13. It was learned from SENARA that the Ministry of Health, by means of official letter DPAH-UNSSAH-403-2016, approved a soil monitoring, sampling and analysis plan for this project, and by means of notes dated September 12, 2016, and November 10, 2016, Mr. Johnny Fung Acón provided the approved plans and requested approval (homologación) by SENARA. He also provided the response given by Futuris Consulting to official letter UI-245-15. However, clarifications were again requested regarding the geological profiles, infiltration tests, the latest water samples analyzed, and the hydrogeological model, by means of official letter UI-236-16 dated December 9, 2016, issued by the Unidad de Investigación Hídrica. 14.
By means of a note dated February 14, 2017, a response to official letter UI-236-16 was received from Mr. Johnny Fung Acón. 15. On May 30, 2017, by means of resolution No. 771-17-TAA, the Tribunal Ambiental Administrativo agreed to approve (homologar) the Conciliatory Proposal to approve the Monitoring Plan approved by the Ministry of Health through official letter DPAH-UNSSAH-403-2016, and indicated that the Ministry of Health must provide semiannual follow-up to said plan. The parties were also summoned to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, to address the issue that Costa Caribeños has not complied with submitting to the TAA a hydrogeological study (under the Terms of Reference established by SENARA) that had the approval (visto bueno) of SENARA. 16. Once again, clarifications were requested regarding the information provided on February 14, 2017, by means of official letter SENARA-DIGH-UI-0231-2017 dated August 4, 2017, a document issued by the Unidad de Investigación Hídrica of SENARA.
To date, no new annexes have been received from Costa Caribeños. 17. Subsequent to this date, SENARA has not received any notification or resolution from the Tribunal Ambiental Administrativo, nor has it received any new documentation from Servicentro Costa Caribeños. 18. That on September 29, 2021, by means of official letter SENARA-DIGH-UI-244-2021, issued by the Dirección de Investigación y Gestión Hídrica of SENARA, a response was provided to the requests made by the appellant herein in its official letters AEL-0093-2021 and MLV-053-2021, a document that was even attached by the appellant in its appeal. 19. That as mentioned in official letter SENARA-DIGH-UI-244-2021, issued by the Dirección de Investigación y Gestión Hídrica of SENARA, the developer of the Servicentro Costa Caribeños project, specifically its legal representative, is responsible for complying with the submission to the TAA of a hydrogeological study (under the terms of reference established by SENARA) that has the approval (visto bueno) of SENARA, and to date it has still not complied with SENARA’s requirements and therefore has also not complied with what was ordered by the TAA.” Finally, from the records contained in the sub examine, it does not appear that, as of the date this appeal was filed, the Tribunal Ambiental Administrativo had issued the final act corresponding to case file no. 177-13-03-TAA.
In view of the foregoing, it is appropriate to cite the provisions of judgment no. 2016018377 of 9:05 a.m. on December 16, 2016, in which a case similar to the one at hand was analyzed:
“IV.- Regarding the right to prompt and complete justice. The Administration, in light of Article 41 of the Constitution, has the obligation to guarantee citizens the fulfillment of prompt and complete justice, without denial, which implies, in the sphere of administrative justice, its obligation to decide with diligence and speed the claims raised by the administered parties, in such a way that its resolution is consistent with the alleged points, as well as to communicate what has been decided to the interested parties, all within a reasonable timeframe. In this sense, the “reasonable” nature of the duration of administrative activity is determined on a case-by-case basis based on various elements, such as the technical complexity of the administrative matter, the extent of the evidence to be gathered, or the degree of impact on the person or the environment of the challenged act, from which it can be inferred that there is no strict right to the constitutionalization of deadlines, but rather a right to the application of constitutional control over those actions of the Administration in which there are no sufficient reasons to justify the time taken to resolve some type of administrative proceeding.
V.Regarding the specific case. In the sub lite, the appellant alleges that a complaint related to the La Carpio Landfill (Relleno Sanitario La Carpio), located in San José, has been pending before the Tribunal Ambiental Administrativo since 2007; however, as of the date the appeal was filed, it has not been resolved.
From the study of the records, it is proven that on August 1, 2007, concerning the alleged impact of emanations, noise, and pollution derived from the malfunctioning of the La Carpio Landfill, a complaint was filed before the Tribunal Ambiental Administrativo against the Secretaría Técnica Nacional Ambiental, the Municipality of San José, and the Ministry of Health (Administrative File No. 215-07-02-TAA). Furthermore, it was subsequently extended against the company EBI Costa Rica, which manages the La Carpio Landfill.
In addition, it is verified that on May 16, 2014, Juan José Echeverría Alfaro filed a complaint before the Tribunal Ambiental Administrativo regarding the illegal operation of the La Carpio Landfill, against the Ministry of Health and SETENA (Administrative File No. 85-74-01-TAA).
Likewise, it is accepted as true that the Tribunal Ambiental Administrativo, by means of resolution No. 119-16-TAA of 11:15 a.m. on February 9, 2016, decided to consolidate administrative file No. 85-74-01-TAA with No. 215-07-02-TAA.
Also, it is proven that on August 8, 2016, Melissa Flores Núñez, representing ASOCARIARI, filed a complaint before the Tribunal Ambiental Administrativo related to the illegal operation of the La Carpio Landfill.
Similarly, as evident from the records, on October 26, 2016, the Tribunal Ambiental Administrativo was notified of the course of this process, and that same authority, by means of resolution No. 1523-16-TAA of 8:20 a.m. on November 1, 2016, scheduled an inspection at the La Carpio Landfill for November 7, 2016, at 8:00 a.m.
Finally, it was reported under oath that administrative file No. 215-07-02-TAA is under preliminary investigation.
From this perspective, the right to prompt and complete justice is deemed violated.
On this matter, although neither the appellant nor the coadjuvant were the ones who filed the 2007 complaint before the Tribunal Ambiental Administrativo, the truth is they are legitimized to take action through constitutional means, due to the nature of the rights involved. It must be considered that in environmental processes and procedures, there is broad standing to appear before them, which derives from Article 50 of the Political Constitution, which states: “(…) Every person has the right to a healthy and ecologically balanced environment. Therefore, they are legitimized to denounce acts that infringe upon that right and to claim reparation for the damage caused. (…)”.
Regarding the specific case, this Chamber, by means of judgment No. 2016-2168 of 9:05 a.m. on February 12, 2016, indicated:
“In the opinion of this Chamber, the lack of procedural impetus by the Tribunal Ambiental Administrativo has produced an undue delay or unjustified tardiness that has violated the fundamental right to a prompt and complete administrative procedure. Article 110 of the Ley Orgánica del Ambiente enshrines the principle of speed in the processing of administrative procedures related to environmental complaints, by expressly establishing the following: ‘Ex officio, the Tribunal Ambiental Administrativo must drive forward the procedure and processing of matters within its competence, with the speed required by the affected situation. The ruling must be issued within a term not exceeding thirty days; in special cases, the term may be extended for up to thirty more days. The obligation of the administration to provide a prompt and complete response is established.’ In this regard, this Court understands that environmental cases can be complex in nature and require a broad evidentiary phase; however, it cannot deem it reasonable that a complaint filed in 2007 is still under preliminary investigation, as was reported.
Additionally, although the respondent Tribunal argues that the filing of new complaints that were consolidated with the 2007 complaint justifies the delay in the final resolution, it must be noted that all of them present facts related to the La Carpio Landfill, and to date, the veracity or otherwise of what was denounced has not been determined, whereby a disproportionate period of time has elapsed for its resolution. Thus, this Chamber does not see it as feasible to justify a delay of more than 9 years in the case at hand.
Similarly, although the respondent Tribunal, on the occasion of the amparo (constitutional appeal), pointed out and conducted a new inspection at the La Carpio Landfill, the truth is that currently, there is not even an approximate timeframe for issuing the final resolution of the complaint, an aspect that is contrary to the Right of the Constitution, especially when the preliminary investigation stage has lasted so many years.
For all the foregoing reasons, the right to prompt and complete justice is deemed violated, and it is appropriate to grant the appeal, with the order that will be given in the operative part.” Now then, in the sub examine, the appellant claims that the Tribunal Ambiental Administrativo has been aware of case file no. 177-13-03-TAA since 2013, related to environmental pollution problems allegedly generated by Servicentro Costa Caribeños S. A. Additionally, it accuses that, despite the TAA having required on multiple occasions that a hydrogeological study be carried out with the approval (visto bueno) of SENARA, it is no less true that such study has not been submitted to the file. In summary, it alleges that eight years have passed since the aforementioned case was initiated, without the respondent authorities having definitively resolved what was denounced.
The Court considers that the petitioner is correct and, consequently, verifies the injury to fundamental rights by the respondent authorities. Thus, note that, indeed, since June 7, 2013, case file no. 177-13-03-TAA was initiated, in which it was alleged that “there were failures that could have caused soil contamination” by Servicentro Costa Caribeños S. A. Furthermore, it is verified that since May 23, 2014, SENARA issued the terms of reference to be used in carrying out the hydrogeological study that must be conducted at the denounced site.
This Chamber also verifies that on various occasions, the Tribunal Ambiental Administrativo consulted SENARA as to whether it granted approval (visto bueno) to the hydrogeological study provided by the denounced party. In this sense, resolutions Nos. 325-15-TAA of 10:24 a.m. on March 26, 2015, 415-15-TAA of 2:07 p.m. on April 16, 2016, 555-15-TAA of 2:02 p.m. on May 13, 2015, and 1529-15-TAA of 11:49 a.m. on December 10, 2015, are observed, for example.
In this regard, although it is proven that on various occasions the denounced party provided hydrogeological studies to SENARA, it is no less true that the records do not show that the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento has approved such study, but rather, on the contrary, the evidence shows that SENARA has made various observations (prevenciones) (for example, see what was stated in brief UI-127-15, in which SENARA indicated that the abovementioned study provided by the denounced party was visibly incomplete).
Now, of importance for the resolution of this matter is that on February 15, 2015, the denounced party submitted to case file no. 177-13-03-TAA the first monitoring of phases and pumping in well PX01 in accordance with the action plan to eliminate flammability risks. Furthermore, it affirmed that “the corrections and clarifications to the Hydrogeological Study requested by Senara through official letter No. UI-236-16 are provided.” Likewise, note that in resolution No. 771-17-TAA of 3:44 p.m. on May 30, 2017, the Tribunal Ambiental Administrativo agreed: “(…) FIFTH: Summon the parties to the continuation of the Oral and Public Hearing for Thursday, July 27, 2017, at 1:30 p.m. at the headquarters of the Tribunal Ambiental Administrativo, maintaining as the only alleged fact that of not having complied with ‘1) Submitting to this Tribunal a hydrogeological study (under the Terms of Reference established by SENARA), which had the approval (visto bueno) of SENARA,’ the foregoing in accordance with resolution No. 377-16-TAA of ten fifty-one a.m. on April 12, two thousand sixteen (…)”.
On this matter, this Chamber verifies that on July 27, 2017, the continuation of the oral and public hearing of case file no. 177-13-03-TAA was held, and from its audio recording, it is clear that the TAA clarified that the matter was ready for the issuance of the final act “with the exception that within 30 business days the corresponding endorsement (aval) from SENARA for the hydrogeological study be submitted.” On this matter, it is credited that on August 9, 2017, SENARA incorporated into case file no. 177-13-03-TAA brief SENARA-DIGH-UI-0231-2017, in which it communicated to the denounced party its opinion on the annex to the hydrogeological study provided on February 15, 2017, and issued observations (prevenciones) to be fulfilled regarding said study. It also clarified that “In order to issue an opinion on behalf of the Institution, all of the requested Terms of Reference must be complied with.
Therefore, it is requested that the necessary points be resolved in order for the institution to issue an opinion.” However, the Court does not fail to point out that no evidentiary material can be deduced from the records that would allow it to be demonstrated that the denounced party was notified of the abovementioned brief SENARA-DIGH-UI-0231-2017. On the contrary, on August 14, 2017, the special judicial attorney of the denounced party stated: “As of today, Geologist María Magdalena Monge Cordero and Geologist Roberto Ramírez Chavarría of the Unidad de Investigación y Gestión Hídrica of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento have not notified my client regarding the fulfillment of the corrections and clarifications to the Hydrogeological Study presented since February 14, 2017, and which they committed to responding to within the following week after the past hearing (held at one thirty p.m. on July twenty-seventh, 2017), i.e., from July 31 to August 4, 2017.
With this, my client is unable to comply within the one-month period indicated by your authority in the event that Senara requires the submission of another requirement, such as tests and analyses, which require a prudent time to be processed. Given that the hydrogeological study is complete, that it also already has the approval (visto bueno) of the Unidad de Normalización de los Servicios de Salud en Ambiente Humano of the Ministry of Health, that the consulting firm Futuris Consulting indicated in its last report, which is in the records, as a textual recommendation ‘Since the hydrocarbons from Site 1 do not represent a risk to health or to groundwater, and since the remaining concentrations are very low, it is considered that no further investigation or remediation is necessary,’ I request that it be declared that it is the Administration, through Senara, who due to its delay has not resolved in time the request for the review of the corrections, a procedure that should be agile, simple, and routine, and that your authority take into account what is stated in this brief, since there is no non-compliance by my client with the submission of the Hydrogeological Study, but rather there is a non-compliance by Senara in carrying out its review.” In this way, from the records contained in the file, it is clear that in the sub iudice, a dispute exists between what was indicated by SENARA and by the denounced party within case file no. 177-13-03-TAA regarding the notification of brief SENARA-DIGH-UI-0231-2017 of August 9, 2017, through which, presumably, said authority communicated its opinion to the aforementioned company on the annex to the hydrogeological study provided on February 15, 2017, and issued observations (prevenciones) to be fulfilled.
In addition to the foregoing, in the file under analysis, it is observed that on some occasions there were delays by SENARA in addressing what was required by the TAA. Thus, for example, by resolution No. 325-15-TAA issued at 10:24 a.m. on March 26, 2015, the Tribunal Ambiental Administrativo consulted SENARA whether it granted approval (visto bueno) to the hydrogeological study provided by the denounced party, for which it required that the report be sent promptly; however, due to the lack of attention to the request, the TAA issued resolution No. 415-15-TAA of 2:07 p.m. on April 16, 2015, by means of which it ordered SENARA to comply with the foregoing within a period of 10 calendar days. Similarly, it is verified that on April 21, 2015, SENARA informed the TAA that the denounced company had recently provided a hydrogeological study for contamination risk and results of chemical analyses for assessment.
It also indicated that said document was under study and evaluation, so once the pertinent information was obtained, it would be communicated to the TAA. However, due to the delay by SENARA in providing what was required by the Tribunal Ambiental Administrativo, the latter issued resolution No. 555-15-TAA of 2:02 p.m. on May 13, 2015, by means of which it ordered SENARA for the third time to comply with the provisions of resolutions “325-15-TAA and 415-15-TAA,” within 10 calendar days. However, it was not until June 12, 2015, that the Ministry of Health issued brief DPAH-UNSSAH-0197-15 in which it pointed out that on June 8, 2015, SENARA issued official letter UI-127-15 indicating that the hydrogeological study provided by the denounced party was visibly incomplete. By virtue of the foregoing, and given that in the case at hand, SENARA did not provide evidence allowing it to be established that, indeed, since August 2017 it has been waiting for the denounced service station to fulfill the observations (prevenciones) made in official letter SENARA-DIGH-UI-0231-2017 of August 9, 2017, this Chamber finds a lack of diligent action on the part of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento regarding the hydrogeological study in question.
The foregoing is aggravated when considering that, according to Law No. 6877, among the functions of SENARA are: “ch) Investigate, protect, and promote the use of the country's water resources, both surface and groundwater (…) i) Provide technical advice and services to public institutions and private parties (…)”.
The Chamber does not fail to point out that a large part of the responsibility for the delay in the processing and resolution of case file no. 177-13-03-TAA is due to the inaction of the Tribunal Ambiental Administrativo, since in that proceeding, lengthy periods of time are observed in which the referred file was inactive. An example of this is that, at the hearing held on July 27, 2017, the TAA indicated that the matter at hand was ready for the issuance of the final act, except for what concerned the receipt of the endorsement (aval) from SENARA for the hydrogeological study, which had to be provided within 30 business days. Furthermore, it is credited that both SENARA and the denounced party incorporated briefs into the file under review in August 2017, in which they informed the TAA of the existence of a controversy concerning the receipt or not of observations (prevenciones) regarding the cited study.
However, it was not until October 25, 2021, that is, more than four years later and after the notification of the resolution of course for this appeal, when said authority issued resolution No. 1442-2021-TAA in which it indicated: “SECOND: That in view of Official Letter SENARA-DIGH-UI-0231-2017 filed on October 9, 2017, which states: (…) the brief filed on August 14, 2017, by Ms. Liliana Navarrete Porras, in her capacity as special attorney for Servicentro Costa Caribeños, S.A., (…); as well as Official Letter DGTCC-DL-2021-130 filed on August 31, 2021, and signed by Mr. Diego Sojo Obando, in his capacity as Director General of the DGTCC (…), this office deems it appropriate to have elements that allow it to clarify the real truth of the facts in this administrative file (…) THIRD: That from the analysis of administrative file No. 177-13-03-TAA, this Tribunal considers it pertinent to request a report, for the purposes of establishing the real truth; therefore, this Office, prior to issuing the Final Act (…) as evidence for better resolution, resolves to request Geól.
Roberto Ramírez Chavarría, in his capacity of the Dirección de Investigación Hídrica of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento SENARA; or whoever holds his position, to report: a. whether the Company Servicentro Costa Caribeños S.A., legal ID 3-101-1139783, submitted the information requested through Official Letter SENARA-DIGH-UI-0231-2017 dated August 4, 2017 (…); if so, indicate whether the Hydrogeological Study conducted by the cited company has the Endorsement (Aval) of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento. The foregoing within a period of three business days counted from the business day following the notification of this resolution (…)”.
Thus, although this Chamber understands that environmental cases can be complex in nature, as well as require a broad evidentiary phase and the receipt and analysis of multiple evidentiary elements, which makes issuing the final act difficult, it is no less true that in the sub lite, it is fully demonstrated that the Tribunal Ambiental Administrativo has not employed the mechanisms conferred by the legal system to compel the parties to comply with what has been ordered in the various resolutions it has issued, especially regarding the hydrogeological study in question. In the same vein, as indicated in previous lines, this Chamber deems it inadmissible that in case file no. 177-13-03-TAA, inactivity on the part of the TAA of more than four years has occurred, which is aggravated when considering that the complaint that initiated the proceeding in question dates from June 2013. Ergo, this matter has been pending for more than nine years, without it being evident from the records that the Tribunal Ambiental Administrativo has issued the corresponding final act.
By virtue of the foregoing, the Chamber considers it appropriate to grant the appeal, in accordance with the provisions of the operative part of this pronouncement.
The parties are warned that if they have provided any document on paper, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be removed from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, any material not removed within this period will be destroyed, according to the provisions of the “Reglamento sobre Expediente Electrónico ante el Poder Judicial”, approved by the Corte Plena in session No. 27-11 of August 22, 2011, Article XXVI, and published in the Judicial Bulletin No. 19 of January 26, 2012, as well as the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, Article LXXXI.
Por tanto:
The appeal is granted. Whoever holds the position of president of the Tribunal Ambiental Administrativo is ordered to coordinate what is necessary and carry out all actions within the scope of their powers so that, within a period of THREE MONTHS, counted from the notification of this judgment: 1) the pending briefs are resolved, the necessary actions are taken, and the final resolution is issued, as appropriate, concerning the administrative procedure processed under case file no. 177-13-03-TAA; and 2) what has been resolved is communicated to this Chamber. Furthermore, Patricia Quirós Quirós, in her capacity as general manager with powers of a general power of attorney without limit of amount of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, or whoever holds that position in her stead, is ordered: 1) to refrain from committing again the acts that gave merit to the granting of this appeal; and 2) to coordinate what is necessary, issue the pertinent orders, and carry out the actions within the scope of her competence, so that, in the event that the Tribunal Ambiental Administrativo issues an order to SENARA within case file no. 177-13-03-TAA, it is addressed within the granted period.
The foregoing is issued with the warning that, based on the provisions of Article 71 of the Ley de la Jurisdicción Constitucional, imprisonment of three months to two years, or a fine of twenty to sixty days, shall be imposed on those who receive an order that they must comply with or enforce, issued in an amparo appeal, and who fail to comply with it or fail to enforce it, provided that the crime is not more severely penalized. The State and the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento are ordered to pay the costs, damages, and losses caused by the acts that serve as the basis for this declaration, which shall be liquidated in the execution of the judgment of the contentious-administrative jurisdiction. Notifíquese.
Fernando Castillo V.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Marta Eugenia Esquivel R.
Alicia Salas T.
*HKMYWODCTXW61*
Sentencia con datos protegidos, de conformidad con la normativa vigente *210204370007CO* SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas treinta minutos del tres de diciembre de dos mil veintiuno .
Recurso de amparo que se tramita en expediente número 21-020437-0007-CO, interpuesto por [Nombre 001], cédula de identidad [Valor 001] , contra el SERVICIO NACIONAL DE AGUAS SUBTERRÁNEAS, RIEGO Y AVENAMIENTO (SENARA) y el TRIBUNAL AMBIENTAL ADMINISTRATIVO.
Resultando:
Redacta el Magistrado Rueda Leal ; y,
Considerando:
Aun cuando Ana María de Montserrat Gómez de la Fuente Quiñonez, se apersonó a este proceso en su condición de vicepresidenta del Tribunal Ambiental Administrativo, no menos cierto es que en la resolución de curso de este recurso se le apercibió al presidente del TAA que el informe requerido por esta Cámara Constitucional debía ser rendido de forma personal. Además, la Sala no omite advertir que de los autos no se desprende justificación alguna concerniente al motivo por el cual el informe no fue rendido por la persona titular de la presidencia del Tribunal Ambiental Administrativo. Atinente a este tema, la Sala en la sentencia n.° 03484-98 de las 16:51 horas de 27 de mayo de 1998, resolvió: “I. Asunto previo . No se admite, por improcedente, el informe que rinde Eduardo Acuña Castro en lugar del correcurrido Ejecutivo Municipal de Pococí. En primer término, cabe señalar que –en virtud de la responsabilidad que deriva del informe, el cual se tiene dado bajo juramento– no es admisible rendirlo más que personalmente (artículos 43, 55 y 45 de la Ley de la Jurisdicción Constitucional).
En segundo lugar, el citado funcionario carece de competencia legal para delegar una competencia que le es propia, conforme a la citada ley. En consecuencia, se le tiene por no aportado y procede la Sala a resolver el asunto sin otro trámite y únicamente a partir de los elementos de juicio que constan en los autos”. En consecuencia, como el presidente del Tribunal Ambiental Administrativo omitió rendir el informe solicitado de manera personal dentro del plazo conferido, de acuerdo con el artículo 45 de la Ley de la Jurisdicción Constitucional, se entra a resolver el recurso con base en los demás elementos que constan en el expediente. II.- SOBRE LA EXCEPCIÓN DEL ARTÍCULO 41 DE LA CONSTITUCIÓN POLÍTICA. Uno de los aspectos señalados podría configurar una lesión al derecho a una justicia administrativa pronta y cumplida. Al respecto, debe aclararse que, a partir del voto número 2008002545 de las 8:55 horas de 22 de febrero de 2008, esta Sala ha remitido a la jurisdicción contencioso administrativa — con algunas excepciones — aquellos asuntos en los que se discute si la autoridad pública ha cumplido o no los plazos pautados por la Ley General de la Administración Pública (artículos 261 y 325) o las leyes sectoriales para los procedimientos administrativos especiales, a fin de resolver por acto final un procedimiento administrativo — incoado de oficio o a instancia de parte— o conocer de los recursos administrativos procedentes.
Precisamente, en este recurso se plantea un supuesto de excepción pues el sub examine está ante una denuncia ambiental que presuntamente no ha sido resuelta. En virtud de lo anterior, la Sala entrará a resolver el recurso. III.- OBJETO DEL RECURSO. La parte recurrente alega que desde el año 2013 se plantearon denuncias por problemas de contaminación ambiental generados por Servicentro Costa Caribeños S. A, los cuales persisten en la actualidad. Aclara que una de esas denuncias refiere al expediente n.° 177-13-03-TAA tramitado ante el Tribunal Ambiental Administrativo. Indica que en el expediente aludido consta que, el 20 de marzo de 2015, el SENARA recibió un estudio hidrogeológico parcial relacionado con el servicentro mencionado; empero, tal dependencia ordenó subsanar algunos aspectos, lo que se repitió en 2016 y 2017. Sostiene que, por resolución n.° 771-17-TAA del 30 de mayo de 2017, el Tribunal Ambiental Administrativo homologó la propuesta conciliatoria para aprobar el plan de monitoreo avalado por el Ministerio de Salud.
Comenta que el TAA convocó a una audiencia oral y pública para el 27 de julio de 2017 para analizar los incumplimientos por parte del Servicio Costa Caribeños por no aportar el estudio hidrogeológico requerido, de acuerdo con los términos de referencia establecidos por SENARA. Refiere que, con posterioridad a la fecha en que se homologó la propuesta conciliatoria supramencionada, SENARA no ha recibido notificación o resolución alguna por parte del TAA, ni documentación alguna del servicentro referido. Sostiene que desde hace más de ocho años se interpusieron las denuncias por contaminación ambiental producida por Servicentro Costa Caribeños S. A, sin que las autoridades recurridas hayan resuelto en forma definitiva la situación. Solicita que se declare con lugar el recurso y que se ordene al Tribunal Ambiental Administrativo exigirle al representante legal de Servicentro Costa Caribeños S. A cumplir cabalmente con los estudios requeridos por SENARA.
IV.-HECHOS PROBADOS. De importancia para la decisión de este asunto, se estiman como debidamente demostrados los siguientes hechos, sea porque así han sido acreditados o bien porque la autoridad recurrida haya omitido referirse a ellos, según lo prevenido en el auto inicial: a) El 7 de junio de 2013 se planteó una denuncia contra Servicentro Costa Caribeños S. A. ante el TAA a la que se le asignó el expediente n.° 177-13-03-TAA, en la que se acusó que “existieron fallas que pudieron ocasionar contaminación del suelo”. (Ver prueba documental). b) Por resolución n.° 609-13-TAA de las 9:25 horas del 22 de julio de 2013, el Tribunal Ambiental Administrativo ordenó a la parte denunciada permitir las inspecciones y análisis por parte de las instituciones competentes. Además, se creó una comisión interinstitucional conformada por SENARA, la Dirección de Agua, el Instituto Costarricense de Acueductos y Alcantarillados (ICAA), el Ministerio de Salud y la Dirección de Gestión de Calidad Ambiental (DIGECA).
(Ver prueba documental). c) El 28 de agosto de 2013, un funcionario del ICAA requirió ante el TAA una prórroga de seis meses, a fin de emitir los estudios técnicos requeridos por resolución n.° 609-13-TAA de las 9:25 horas del 22 de julio de 2013, los cuales son necesarios para determinar si existe o no contaminación en los mantos acuíferos de la zona. (Ver prueba documental). d) El 12 de setiembre de 2021, la Dirección General de Transporte y Comercialización de Combustible (DGTCC) emitió el oficio DGTCC-0384-2013, mediante el cual se indicó que se realizó una inspección a Servicentro Costa Caribeños S. A. y se comprobó que los contenedores se encontraban funcionando correctamente, así como que en tal servicentro no se observaba algún incumplimiento que comprometa su funcionamiento seguro. Además, se indicó que en la época de invierno se producen inundaciones que afectan el establecimiento.
En consecuencia, se solicitó que las entidades competentes se pronuncien sobre las posibles afectaciones que podrían generarse. De igual forma, se manifestó que los personeros de la parte denunciada aportaron un análisis químico en el que se indicó que no hay contaminación por hidrocarburos. (Ver prueba documental). e) El 17 de setiembre de 2013, la Dirección de Agua informó que se conformó la comisión interinstitucional desde el 5 de setiembre de 2013, la cual solicitó que se posponga lo indicado en la resolución n.° 609-13-TAA de las 9:25 horas del 22 de julio de 2013 dictada por el Tribunal Ambiental Administrativo hasta tanto se resolviera el recurso de amparo tramitado en el expediente 13-006391-0007-CO, o bien, en caso de que se mantuviera en funcionamiento la comisión se incluyera a SETENA y a la DGTCC. (Ver prueba documental). f) El 3 de octubre de 2013, el Ministerio de Salud aportó copia del memorial DGS-3732-13 suscrito por la directora general de Salud en atención a lo requerido en la resolución n.° 609-13-TAA de las 9:25 horas del 22 de julio de 2013.
(Ver prueba documental). g) Mediante resolución n.° 238-14-TAA de las 14:03 horas del 12 de marzo de 2014, el Tribunal Ambiental Administrativo indicó que la interposición de un recurso de amparo no impide que los órganos públicos ejerzan su competencia, por lo que ordenó aportar el informe requerido previamente en el pronunciamiento n.° 609-13-TAA de las 9:25 horas del 22 de julio de 2013. Asimismo, integró a la comisión interinstitucional a SETENA, a la DGTCC, al INTA, al SINAC y al SENARA. Además, se ordenó a los miembros de la referida comisión aportar los informes requeridos en la resolución supramencionada en el plazo de 10 días naturales. (Ver prueba documental). h) El 21 y el 28 de marzo de 2021, el MINAE y el ICAA, respectivamente, aportaron escritos al expediente n.° 177-13-03-TAA. (Ver prueba documental). i) El 9 de abril de 2021, el Ministerio de Salud informó que se revocó el permiso sanitario de funcionamiento extendido a Servicentro Costa Caribeños S. A. Además, comunicó que, posteriormente, se constató que no existía contaminación por lo que se levantó el acto administrativo.
(Ver prueba documental). j) El 29 de abril de 2021, el MINAE solicitó la convocatoria a una reunión para valorar la información del caso y posteriormente efectuar una inspección al lugar de la denuncia. (Ver prueba documental). k) El 23 de mayo de 2014, SENARA comunicó a la Dirección de Agua los términos de referencia para realizar un diagnóstico hidrogeológico en el lugar denunciado. (Ver prueba documental). l) El 10 de junio de 2014, la Dirección de Agua emitió el memorial AT-2315-2014, por medio del que señaló que el 20 de mayo de 2014 se efectuó la inspección al lugar de la denuncia y se emitieron varias recomendaciones, entre ellas, ordenar a la parte denunciada realizar un diagnóstico preliminar hidrogeológico de acuerdo con los términos de referencia establecidos por SENARA. (Ver prueba documental). m) El 24 de junio de 2021, la DGTCC le solicitó al TAA que, una vez que culmine la medida cautelar dictada por esa dirección en la que ordenó a Servicentro Costa Caribeños S. A el cese de la prestación del servicio público de suministro de combustibles hasta el 2 julio de 2014, sea el Tribunal Ambiental Administrativo quien asuma la competencia respecto a la aplicación de eventuales medidas cautelares.
(Ver prueba documental). n) Por resolución n.° 471-14-TAA de las 10:20 horas del 30 de junio de 2014, el Tribunal Ambiental Administrativo ordenó al Ministerio de Salud, al MINAE, a la DGTCC y a ARESEP ejercer sus competencias para evitar posibles riesgos a la vida, la salud y el ambiente. Además, se ordenó a la ministra de Salud convocar al Comité Técnico del decreto ejecutivo n.° 37757-S y aplicar la normativa pertinente para disponer responsablemente de los suelos que puedan estar contaminados, realizar la evaluación preliminar del impacto o potencial impacto de eventos de contaminación de suelo, acuíferos y otros. Igualmente, se ordenó a la DGTCC aportar una copia del estudio hidrogeológico que le requirió a la parte denunciada. Por su parte, al Laboratorio Nacional de Aguas del ICAA se le pidió determinar si existen indicios de contaminación por hidrocarburos del cauce cercano de agua superficial.
Finalmente, se requirió al SINAC determinar si el sitio corresponde a un humedal. (Ver prueba documental). o) El 15 de julio de 2014, el recurrente requirió al Tribunal Ambiental Administrativo ser tenido como parte interesada dentro del expediente n.° 177-13-03-TAA. (Ver prueba documental). p) En julio de 2014, ARESEP aportó el oficio 900-IE-2014. (Ver prueba documental). q) Por resolución n.° 518-14-TAA de las 14:02 horas del 9 de julio de 2014, el TAA ordenó al director del Registro Público de Bienes Inmuebles y a la directora de Servicios Registrales, ambos del Registro Nacional, así como al alcalde de Limón, aportar una serie de documentos. (Ver prueba documental). r) Mediante resolución n.° 611-14-TAA de las 7:17 horas del 4 de agosto de 2021, el Tribunal Ambiental Administrativo puso en conocimiento del Banco Improsa S. A. las actuaciones del expediente y le otorgó el plazo de tres días para pronunciarse en la etapa de investigación preliminar.
(Ver prueba documental). s) El 5 de agosto de 2014, la DGTCC emitió el oficio DGTCC-809-2014, mediante el que solicitó al TAA contar con la participación de un representante de ese despacho en la reunión ordenada por resolución R-DGTCC-709-2014, en la que se daría audiencia al concesionario. (Ver prueba documental). t) El 13 de agosto de 2014, el Banco Improsa S. A. se apersonó al procedimiento. (Ver prueba documental). u) El 19 de agosto de 2014, la Dirección de Agua informó que, el 11 de agosto de 2014, la comisión interinstitucional se reunión con personeros de la empresa denunciada y luego se llevó a cabo una reunión. (Ver prueba documental). v) El 12 de setiembre de 2014, el Ministerio de Salud informó que adjunta informe contenido en el oficio DR-HC-2233-2014, en el que se consignó, entre otras cosas, que el 8 de agosto de 2014 se revocó el permiso de funcionamiento de la parte denunciada y se colocaron sellos para clausurar las columnas de las bahías.
(Ver prueba documental). w) El 23 de setiembre de 2014, la Dirección de Agua indicó que el 12 de setiembre de 2014 se llevó a cabo una reunión de la comisión interinstitucional. Además, se informó que no se ha contado con la participación de algún funcionario de SETENA. (Ver prueba documental). x) El 2 de octubre de 2014, la Dirección de Agua requirió al TAA copia de la resolución emitida en respuesta al oficio AT-2315-2014. (Ver prueba documental). y) El 13 de octubre de 2014, la Dirección de Agua comunicó que el 3 de octubre de 2014 se efectuó una reunión de la comisión interinstitucional. (Ver prueba documental). z) El 15 de octubre de 2014, la DGTCC dirigió el memorial DGTCC-DL-056-2014 al TAA, mediante el que se refirió sobre los últimos hallazgos de las inspecciones efectuadas a la estación de servicio, así como sobre el estado actual de funcionamiento. Además, se solicitó al Tribunal Ambiental Administrativo tomar en cuenta lo expuesto y realizar las acciones correspondientes.
(Ver prueba documental). aa) Mediante resolución n.° 861-14-TAA de las 9:06 horas del 15 de octubre de 2014, el Tribunal Ambiental Administrativo ordenó por segunda vez al Ministerio de Salud, a la DGTCC, al SINAC y al Laboratorio Nacional de Aguas del ICAA cumplir lo ordenado en el pronunciamiento n.° 471-14-TAA, Además, se requirió a la parte denunciada cumplir lo que le ordenaren las entidades correspondientes. (Ver prueba documental). bb) El 21 de octubre de 2014, el accionante planteó una denuncia ante el TAA contra la DGTCC “por la emisión de la Resolución R-DGTCC-720 de las 13 horas del 18 de agosto del 2014, mediante la cual se levantó la medida cautelar impuesta al Concesionario Servicentro Costa Caribeños S.A., cédula jurídica número 3-101-139783, mediante resolución R-DGTCC-485-2014-MINAE del 26 de mayo de 2014, la cual se dictó a su vez en cumplimiento de la resolución TAA-609-2013 de las 9.25 horas del 22 de julio del año 2013 y 471-14-TAA de las 10:20 horas del 30 de julio del 2014 del Tribunal Ambiental Administrativo (TAA), Expediente ES-7-01-01-05-Servicentro Costa Caribeños”.
(Ver prueba documental). cc) El 22 de octubre de 2014, el Laboratorio Nacional de Aguas del ICAA aportó el reporte de los resultados del análisis de Servicentro Costa Caribeños S. A. (Ver prueba documental). dd) El 27 de octubre de 2014, la Dirección de Agua emitió el oficio AT-4953-2014, mediante el cual indicó que “no cuenta con un análisis integral de la información generada sobre este caso, ni tampoco se han generado las recomendaciones técnicas al Tribunal Ambiental Administrativo, ni se podrían emitir las medidas al respecto por parte de la Comisión Interinstitucional, por cuanto el concesionario (empresa denunciada) no ha presentado los estudios hidrogeológicos que generen la información sobre la situación real del caso”. (Ver prueba documental). ee) El 28 de octubre de 2014, la Dirección de Agua informó sobre actuaciones efectuadas dentro del expediente n.° 177-13-03-TAA. (Ver prueba documental). ff) El 4 de noviembre de 2014, la Dirección de Agua aportó el oficio AT-5198-2014 y manifestó que, al 3 de octubre de 2014, la parte denunciada no había aportado los estudios hidrogeológicos solicitados por SENARA.
(Ver prueba documental). gg) El 7 de noviembre de 2014, la DGTCC remitió el memorial DGTCC-096-2014, por medio del que externó que SENARA manifestó que la parte denunciada no había realizados los estudios requeridos. Además, se mencionó que: “Tal y como lo indicamos en el oficio DGTCC-DL-056-2014, el resultado de los análisis químicos realizados al agua de los pozos de observación y de monitoreo de la estación de servicio en cuestión, fue revisado por el Departamento de Ingeniería de esta Dirección mediante informe técnico número IF-DGTCC-15-09-2014, de fecha 17 de setiembre del 2014, y se constató la presencia de hidrocarburos por encima de los valores de referencia utilizados en el artículo 21 del Decreto Ejecutivo 33601-MIANE-S Reglamento de Vertido y Reúso de Aguas Residuales. Por esta razón, esta Dirección recomienda al Tribunal Ambiental Administrativo aplicar las acciones administrativas que resulten necesarias conforme a sus competencias, en la tramitación del procedimiento administrativo de índole sancionatorio, por contaminación al ambiente (…)” (Ver prueba documental). hh) El 13 de noviembre de 2014, la parte denunciada requirió ante el TAA que se le permitiera aportar un estudio hidrogeológico antes de que se emitiera algún pronunciamiento.
(Ver prueba documental). ii) El 1° de diciembre de 2014, el Ministerio de Salud adjuntó el memorial DR-HC-3126-2015 en el que se encuentra un informe de seguimiento emitido por el director regional de la Rectoría de la Salud Huetar Caribe. (Ver prueba documental). jj) Por resolución n.° 1117-14-TAA dictada a las 7:02 horas del 3 de diciembre de 2014 por el Tribunal Ambiental Administrativo se indicó que, de previo a dar respuesta a lo requerido por la parte denunciada el 13 de noviembre de 2014 era necesario que aportara ante esa dependencia los estudios solicitados por SENARA en el oficio DIGH-UI-147-14. Además, se emitieron órdenes a la ministra de Salud y al director de la DGTCC. (Ver prueba documental). kk) El 5 de diciembre de 2014, la parte denunciante efectuó manifestaciones dentro del expediente n.° 177-13-03-TAA. (Ver prueba documental). ll) El 15 de diciembre de 2014, SINAC informó que el establecimiento de la parte denunciada no se ubica en terrenos clasificados como humedales.
Además, se consignó: “De acuerdo a (sic) las características observadas y apreciables fotográficamente con respecto al curso de agua sin nombre, es evidente que el mismo se constituye actualmente como un desagüe de aguas servidas e incluso aguas negras y como drenaje que capta la escorrentía superficial causada por la precipitación pluvial. Así mismo (sic) , no se observaron especies que indicaran que dicho curso de agua corresponda a un río, arroyo o quebrada, por su parte en ambos lados del mencionado curso de agua sin nombre se encuentran ocupadas por infraestructura residencial. Por lo anterior no existe elementos concretos para proceder a la valoración económica del daño ambiental en el marco del presente caso. Aunado a esto, el citado establecimiento de expendio de combustible, se visualiza desde hace más de 9 años (Mapa
Por tanto:
Se declara con lugar el recurso. Se ordena a quien ocupe el puesto de presidente del Tribunal Ambiental Administrativo, coordinar lo necesario y llevar a cabo todas las actuaciones que estén dentro del ámbito de sus competencias para que, en el plazo de TRES MESES , contado a partir de la notificación de esta sentencia: 1) se resuelvan los escritos pendientes, se realicen las actuaciones necesarias y se dicte la resolución final, según corresponda, concerniente al procedimiento administrativo tramitado bajo el expediente n.° 177-13-03-TAA; y 2) se comunique a esta Sala lo resuelto. Además, se ordena a Patricia Quirós Quirós, en su condición de gerente general con facultades de apoderada generalísima sin límite de suma del Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, o a quien en su lugar ejerza ese cargo: 1) abstenerse de cometer nuevamente los hechos que dieron mérito a la estimatoria de este recurso; y 2) coordinar lo necesario, girar las órdenes pertinentes y efectuar las actuaciones que estén dentro del ámbito de su competencia, a fin de que, en caso de que el Tribunal Ambiental Administrativo le dicte una orden a SENARA dentro del expediente n.° 177-13-03-TAA, esta sea atendida en el plazo conferido.
Lo anterior se dicta con el apercibimiento de que, con base en lo establecido en el artículo 71 de la Ley de la Jurisdicción Constitucional, se impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quienes recibieren una orden que deban cumplir o hacer cumplir, dictada en un recurso de amparo y que no la cumplieren o no la hicieren cumplir, siempre que el delito no esté más gravemente penado. Se condena al Estado y al Servicio Nacional de Aguas Subterráneas, Riego y Avenamientos al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo.Notifíquese.
Fernando Castillo V.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Marta Eugenia Esquivel R.
Alicia Salas T.
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