He supreme court (TS) has handed down a sentence in which it endorses the decision taken by the Candelaria City Council to proceed with the closure of a drain that connected the illegal discharges of industrial wastewater from several companies located in the Güímar industrial estate with the public network. .
In this specific case, it refers to the JSP entity for non-compliance with 5 of the 50 parameters required by the General Planning Plan (PGO), in the section that regulates the use of sanitation networks and discharges into the municipal sewerage network.
The JSP company, now defunct, appealed the 2018 decree issued by the City Council in which it declared illegal the discharges into the submarine outfall co-owned by the municipalities of Candelaria, Arafo and Güímar, which is located in the industrial estate of the latter municipality.
For this reason, the closure of the company drain that connected to the public sanitation network was ordered.
The affected industries challenged the municipal decision, considering that the city council had overreached when using the PGO for these purposes, although now the Supreme Court recalls that planning is a valid instrument.
And all of this insofar as it adapts to the consolidated text of the Land Management Laws of Canary Islands and Natural Spaces, as it is a precept that regulates the environmental conditions of water discharges.
In the first instance, a court agreed with the company by concluding that the regulation of chemical and conductivity indices in discharges does not fall within the scope of the general plans or the insular
Both documents, according to that already annulled ruling, indicated that the Land Law did not authorize the regulation of the use of the sewage system, but that this should be done through a specific ordinance or a sectoral regulation.
The Candelaria City Council appealed this ruling before the Superior Court of Justice of the Canary Islands (TSJC), which agreed with it, considering the application of this regulation “an irrelevant formal question” given that local corporations have powers in environmental matters, equipment and infrastructure in the public domain and wastewater treatment.
The company, however, before the Supreme Court defended that this matter could only be ordered through the determinations of the Insular Water Council and above all the insular Hydrological Plan.
To which the City Council responded that the PGO is a valid normative instrument unless there had been a “clamorous, total and absolute” omission in the procedure used.
The Supreme Court settles this discussion by now concluding that the regional regulations on land use planning and natural spaces ratify that local corporations can adopt protective measures on infrastructures and equipment in the public domain.
Therefore, in the case of Candelaria, “we are dealing with an adjectival question, merely formal, not reviewed through an indirect appeal”, as determined by various jurisprudence of the Supreme Court.
“What’s more, the regulation of the maximum parameters through the PGO gives them a greater guarantee”, so that when there is no specific provision, the choice of the regulatory vehicle “represents a mere formal choice, without affecting material competence of the body that issued it.
In 2018, the Prosecutor’s Office opened an extensive criminal case of more than 17,000 pages, divided into 34 volumes, in order to clarify possible criminal responsibilities for the polluting discharges that have occurred in the industrial estate shared by the three municipalities.
Among the defendants there were a total of seventeen people, including mayors and former mayors and councilors and former Town Planning councilors of these municipalities, managers of the Island Water Council and a representative of the Polygon Compensation Association.
However, in 2021 the case was partially provisionally dismissed when the judge considered that no “criminally relevant” breaches were detected and that there were no guarantees in the taking of the samples.
Nor that they caused “substantial damage to the quality of seawater and less to the balance of natural systems or to the health of people.”
Despite this, five mayors and former mayors of these municipalities are still charged.
The case focuses on the management of the submarine outfall of the Güímar industrial estate and the possible harmful effects of the discharges that, without authorization since 2011, have been carried out at this point on the Tenerife coast.
The difficulty in identifying those directly responsible was one of the problems encountered by the prosecutor and the investigating judge, who tried to elucidate the possible criminal consequences derived from the evidence of crime found up to that moment.
What at first seems clear, and is now ratified by the Supreme Court, is that the discharges have exceeded the permitted limits of polluting substances at certain times, although it remains to be clarified whether these situations have caused direct damage to the environment and a risk to health.
The Supreme Court ratifies for the first time that until the approval of the decree challenged by the JSP, the maintenance obligations of the submarine emissary and the inspection of the companies installed in the Güímar industrial estate have been breached.
Faced with this demand, the Candelaria City Council ordered the cessation of the discharges, a municipal decision that was appealed by the industries, including JSP, but which has now been endorsed by the Supreme Court.
