\n\n
X.- Conclusion. As the injury to the fundamental rights alleged by the appellants, attributable to the respondents, is not verified, this appeal is dismissed, not without first making three calls to attention: first, to the Minister of Health so that she verifies compliance with sanitary order No.\n\nARSSA-1583-09 issued against Constructora MECO S.A. The second call to attention is for the Secretary General of the Secretaría Técnica Nacional Ambiental, the Director of Geologías y Minas, and the Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, so that they take note of the recommendation formulated by the General Manager of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA), in protection of the water resources of the area. Third: In relation to vehicular traffic and the maintenance of public cantonal roads, the Municipality of Santa Ana must adopt the necessary measures to avoid nuisance to the neighbors.\n\n**Por tanto:**\n\nThe appeal (recurso) is declared without merit. The Minister of Health, the Secretary General of the Secretaría Técnica Nacional Ambiental, the Director of Geologías y Minas, and the Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, and the Municipality of Santa Ana shall take note of what is indicated in the last considerando.\n\nAna Virginia Calzada M.\n\nPresidenta\n\nGilbert Armijo S. Ernesto Jinesta L.\n\nFernando Cruz C. Rodolfo E. Piza R.\n\nRicardo Guerrero P. Enrique Ulate C.\n\nIt was based on the principle that every person has the right to a healthy and productive life in harmony with nature; it included the right of present and future generations for development to be carried out in such a way that satisfies their environmental and progress needs; it maintained the sovereign power of States to exploit their resources, emphasizing their responsibility to ensure that activities carried out within their jurisdiction and control do not cause environmental damage to other States or areas beyond the limits of their national jurisdiction. They established the duty of States to cooperate in the conservation, protection, and restoration of the environment and their common responsibilities in this regard; in this way, international cooperation in promoting and supporting economic growth and sustainable development will make it possible to better address the problems of environmental degradation. But it must also be noted that in accordance with the provisions of Article 50 of the Constitution, the Organic Law of the Environment establishes the liability of anyone who contaminates the environment or causes damage to it (Article 2, subsection d). Damage or contamination to the environment can be produced by acts or omissions and is attributable to all natural or legal persons who carry them out (Article 98), and the owners of the enterprises or activities that cause the damage, whether by act or omission, are considered jointly and severally liable (Article 101).\n\n**V.- Regarding the company Constructora Meco S.A.** With respect to this company, the petitioners, who are residents of the Urbanización Bosques de Santa Ana, located in Pozos de Santa Ana, state that it established itself in the area in 1994 with a quarry (tajo), warehouses, and administrative offices, despite the fact that this area is – according to the Plan Regulador – a *\"high-density residential zone\"*, which implies that this location is not suitable for the operation of industries, warehouses, sawmills, and other activities that cause nuisance to the neighborhood. In fact, there is a declaration from the Instituto Nacional de Vivienda y Urbanismo indicating that in August 1994 it did not grant construction permits for industrial activities in that area. Due to the existence of the quarry, they suffer from dust pollution and noise pollution from the constant passage of heavy vehicles 24 hours a day, not to mention that the soils are unstable as a consequence of the extraction of material and the streets surrounding the Residential area are destroyed. They add that the community of Bosques de Santa Ana is located right next to Constructora Meco, and on what the environmental fragility index calls: *\"the most important aquifers (mantos acuíferos) of the Valle Central\"*, so the most sensible thing would be to eliminate the mining activity from the area. The foregoing disagreement raised by the petitioners, and practically for the same facts, has already been brought to the attention of this Chamber, by reason of the amparo appeal No. 08-014565-0007-CO filed by María Antonieta Alegría de García and Roberto Rafael Alegría Rodríguez, also residents of the Urbanización Bosques de Santa Ana. That amparo was declared without merit through judgment No. 2009-003342 of twelve hours fourteen minutes on February 27, 2009, under the following considerations: \n\n***“…. V.-** Well, in the present case, what is being discussed is whether the omission of the respondent authorities (namely, the Dirección de Geología y Minas of the Ministerio del Ambiente, Energía y Telecomunicaciones, the Municipalidad del Cantón de Santa Ana, the Ministerio de Salud, and the Ministerio de Ambiente y Energía) regarding the complaints filed about the alleged environmental pollution problems caused by the activity deployed by the company Constructora MECO, Sociedad Anónima, in a quarry adjacent to the Urbanización Bosques de Santa Ana, violates or does not violate the right of the protected parties to a healthy and ecologically balanced environment. In this regard, the authorities of the Ministerio de Ambiente y Energía in their sworn report have indicated that the exploitation of the aforementioned quarry has the environmental feasibility (viabilidad ambiental) and the corresponding permits, after having carried out the necessary environmental impact assessments (estudios de impacto ambiental) (see folio 73), which is deduced from the content of files No. 198-94 and 058-97. But the Minister of Ambiente y Energía has also affirmed under oath that “as of today, it is up to date with its environmental commitments, such as the amount of the environmental guarantee which is current and in the presentation of the regency reports (informes regenciales) (see report on folio 37), and that there is no communication from the Secretaría Técnica Nacional Ambiental or the Dirección de Geología y Minas to the effect that said company must suspend its activities (see report on folio 37).”*\n\n***VI.-** On the other hand, the Minister of Salud in her report indicated that on November 7, 2008, an inspection was carried out at the site indicated by the petitioners, noting that the petitioning company has the necessary permits for the development of its undertaking, as well as the adequate physical conditions, and no anomaly was found (see report on folio 43). Finally, the authorities of the Municipalidad del Cantón de Santa Ana in their response – which is given under the solemnity of oath, with timely warning of the consequences, including criminal ones, provided for in Article 44 of the Ley de la Jurisdicción Constitucional – indicated that the permits enjoyed by the company Constructora MECO, Sociedad Anónima, predate the entry into force of the Plan Regulador of the Cantón de Santa Ana (see report on folio 46), whereby the Chamber appreciates that it constitutes a matter of mere legality to determine whether such permits still remain in force despite the content of the local plan regulador, which must be aired before the ordinary courts, through the exercise of the actions and procedures that the legal system establishes for that purpose.*\n\n***VII.-** Thus, with regard to the effective protection of the precautionary principle and the right protected in Article 50 of the Constitution, this Constitutional Court has not found any current illegitimate situation proven that impairs the full enjoyment of these rights, based on the evidentiary material that the plaintiffs have provided on this occasion. On the contrary, from the reports provided by the respondent authorities and the documentary evidence adduced to the record, it is rather inferred that the activity deployed in the aforementioned quarry does not pose problems of environmental pollution, regarding possible excess noise or dust. So that the conduct of the respondents, far from violating the fundamental rights of the promoters, conforms to the Law of the Constitution. By virtue of the foregoing, the appropriate course is to declare the amparo appeal without merit, without prejudice (of course) to arriving at a different conclusion on another occasion based on other elements of proof.”*\n\nThus, taking into account that recent precedent, it is considered that there is no merit in re-examining the permits granted to said company that have allowed it to work in the Quarry of interest, nor the matter concerning the Plan Regulador. Furthermore, it must be mentioned that this Court has indicated in previous cases that it is not the competence of an instance such as this one to verify whether an Environmental Impact Assessment, hydrological study, hydrogeological study, or any other of a technical nature was well prepared or not, since it evidently requires the knowledge of specialists in those disciplines, which are not part of the jurisdictional function of this Constitutional Court (see judgments No. 2004-009927 of eleven hours one minute on September 3, 2004, and 2005-005790 of ten hours forty-one minutes on May 13, 2005). In the case under study, the concessionaire company had to present various technical studies to ensure that the project would not produce environmental damage. Precisely the entities – in particular SETENA – responsible for reviewing said studies, assessed that they indeed meet the necessary information to evaluate and predict the impact of the quarry exploitation, and by reason of this, it was approved, granting the Environmental Feasibility (Viabilidad Ambiental) and the other permits cited previously. In any case, if the promoters consider that the studies were not carried out properly or they believe that not all the necessary legal aspects were contemplated – because they were private companies contracted by the concessionaire company –, and that the Plan Regulador of the area does not permit its operation, this constitutes a matter that must be resolved before the instances knowledgeable of the technical aspects in this area, and not before the constitutional jurisdiction, by virtue of being an aspect that escapes the sphere of its competence. What is within the competence of this Chamber is to determine whether, with the approval of this concession, serious and irreversible damage to the environment was produced or there is a possibility of it being produced, as contemplated in the Rio Convention. This is because it is unavoidable that every human activity on Earth implies an impact on the environment (or damage, since it alters it in one way or another); however, its relevance for study purposes consists in the fact that this impact must be serious or irreparable, as provided in said Convention. In this regard, it is observed that at the entrance of the Tajo Meco there is a parking area (beforehand) for the trucks waiting to be loaded, which is located within the property of the company MECO, so the public road is not obstructed at any time. In addition, in the machinery transit zone, no oil stains on the ground were observed, which indicates it is in good condition. The sources of noise, smoke, dust, and gases are multiple in the area adjacent to the company MECO, due to the large number of industries and other productive activities nearby and the high transit of vehicles and heavy machinery, coupled with the poor condition of the street separating the industrial zone from the neighboring residential areas; however, in the Tajo Meco, no evidence was found of dust pollution coming from its own activities, as they are geographically confined by considerable level differences. It was confirmed that there is constant monitoring of the covering of material transport trucks and the transit zones within the quarry (tajo) are frequently watered. It has been reported, under the gravity of oath, that the noise in the process zone is characteristic of this type of activity, where rocky material is processed from a larger to a smaller size, but when moving away from the site, near the urban zone, no noise is perceived. In this context, it is considered that the amparo appeal regarding this aspect is not admissible, since once again it has not been possible to corroborate any noise or environmental pollution produced by the activity carried out in the quarry of interest. Notwithstanding the foregoing and based on the precautionary principle, note must be taken of what was reported by the Vice Minister of Salud that the Área Rectora de Salud de Santa Ana issued sanitary order No. ARSSA-1583-09 so that the construction company performs two perimeter immission studies, in the rainy season and dry season, with the objective of scientifically determining if the emissions generated by the company may affect the neighborhood (report on folios 406 to 410, document on folios 414 and 415). Furthermore, the Municipalidad de Santa Ana must do the same regarding the cantonal public roads concerning vehicular traffic and their maintenance, since it is evident from what was reported that there is a certain problem due to the high transit of vehicles and heavy machinery, coupled with the poor condition of the street separating the industrial zone from the neighboring residential areas, which, regardless of who the producing actors are, the truth is that it is their responsibility. \n\n**VI.-** Regarding the alleged contamination of water resources, which is a new element, it is necessary to point out that the jurisprudence of the Chamber is clear in recognizing the right to water as a fundamental right, thus, along with the realization of serious efforts for its provision to the population, the public institutions have the duty to make responsible and moderate use of the available water resource, which implies the need to obtain certainty of the water susceptible to exploitation – availability – guaranteeing its present provision and the future sustainability of the service, preventing the current use of the resource from producing an environmental risk that compromises the future existence and supply of the liquid. Moreover, the Chamber has had the opportunity to pronounce itself in a forceful and detailed manner on the protection that must be granted to the national water resource, clarifying both the normative protection framework and the institutions that make up the water sector, recognizing and specifying the scope of competencies of those instances and the transcendence of their actions in matters of grant, use, and protection of water. Groundwater has become the main means of public supply in the Central American region, since the majority of surface sources have been contaminated by human action. In the specific case of Costa Rica, it is estimated that approximately seventy percent of the water consumed daily by the country's inhabitants comes from groundwater, a situation that highlights the importance of protecting this resource. It has also been noted that … *“Unlike the pollution of surface water, which is usually evident and visible, allowing for environmental actions aimed at mitigating or eradicating it, that of groundwater, by its very nature, usually goes unnoticed and becomes evident when it has reached large proportions. Aquifers (mantos acuíferos), due to the slow circulation of the waters, the absorption capacity of the terrain, and other factors, can take a long time to show contamination. Additionally, the large volume of water contained means that extensive contamination takes a prolonged period to manifest itself, or when it involves localized contamination, it is detected when it flows into some exploitation site. Certainly, this type of water has a resistance to contamination, however, when this occurs, its regeneration can be extraordinarily slow and at times is irreversible due to the high cost of the means to do so. It has been demonstrated that attempts to repair the damage caused by contamination to an aquifer to achieve, again, levels of water potability have not been successful, technologies for its cleaning have contributed little to reducing the damage, and the methods are economically very high. To the above must be added the lack of organizational infrastructure, material, financial, and human resources, in the latter case, duly trained to evaluate, measure, and, in general, monitor the quality of this water and the exact dimension of its contamination. The degradation and contamination of aquifers (mantos acuíferos) imposes on the legislator and public administrations the urgent and non-deferrable task of protecting them…”* (judgment No. 2004-1923, of fourteen hours fifty-five minutes on February 25, 2004) (see also, among others, judgments No. 2008-012109 of fifteen hours and sixteen minutes on August 5, 2008, No. 2008-014092, of nine hours twenty-eight minutes on September 23, 2008, and No. 2008-015657 of eleven hours forty-five minutes on October 17, 2008). In this case, it has been possible to confirm, from all the reports rendered by the respondent public authorities, that the Tajo Meco is not located within the Área de Reserva Acuífera de Puente Mulas demarcated by the AyA. That although its activity is located on the left bank of the Río Virilla, it does not affect water usage for public supply and the Zona de Reserva Acuífera of the Instituto Costarricense de Acueductos y Alcantarillados. Additionally, the canyon of the Río Virilla acts as a negative barrier to the activities generated on the left bank of said river. It has also been fully demonstrated that the most important aquifers of the Valle Central are located on the right bank of the Río Virilla, and those located on the left bank are not aquifer zones (zonas acuíferas) of such relevance. Thus, although the volcanic materials that appear on the left bank (quarry under study) are the same as those on the right bank where very important aquifers develop (Puente de Mulas), the aquifers are not the same; while on the right bank they are very productive, on the left bank, due to their small recharge areas, they are not saturated and only generate small aquifers of low potential. It is clarified that on the right bank of the Río Virilla, a large number of springs (manantiales) emerge that have been generated in fractured lava rocks belonging to the Puente de Mulas aquifer and that, together with water wells, are captured by the AyA. Within this context, it is not possible, as the petitioners claim, to presuppose in any way that the aquifers (mantos acuíferos) of the area run any risk of suffering contamination from the work carried out by Constructora MECO in the zone. The foregoing does not imply, of course, that the respondent public authorities consider their work finished, as they must continue coordinating and verifying the conditions under which the concession was granted, and compliance with the Environmental Impact Assessment, also having to take precautions if the case so warrants. See that the General Manager of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) (folios 430 to 433), recommends that for purposes of assessing the current situation, more hydraulic conductivity tests should be carried out and the transit times and the intrinsic vulnerability of the aquifer recalculated. Additionally, to carry out an inventory of possible sources of contamination in the extraction development of the quarry (tajo) and take measures to prevent the infiltration of contaminating substances into the aquifer. Also the installation of piezometers in the quarry, with the objective of verifying the groundwater level and its relationship with the rock exploitation levels or elevations. \n\n**VII.- Regarding the Corporación de Supermercados Unidos**. The petitioners argue that several years ago, the Corporación de Supermercados Unidos installed a commercial premises with warehouses in the area, despite the zone being residential, and therefore, industry or commerce cannot be located in that place. They assert that the Instituto Nacional de Vivienda y Urbanismo granted permits to the referred corporation, contrary to what is prescribed in the plan regulador. Said company has not confined the nuisances produced by its commercial activities, a situation that is aggravated by the inertia of the respondents who have not provided an effective solution to the pollution problem they allege. In this regard, this Court has repeatedly indicated that, in accordance with the provisions of Articles 169 and 170 of the Constitution, the Ley de Planificación Urbana No. 4240 of November 15, 1968, establishes that primary ownership in matters of urban planning corresponds to the municipalities, which has been set forth in Articles 15 and 19 of said law. These entities are responsible for assuming local urban planning through the enactment of the respective plans reguladores, making effective the regulations dictated for that purpose by the Instituto Nacional de Vivienda y Urbanismo, as the institution responsible for urban planning at the national level. The latter with the clarification that the Dirección de Urbanismo functions as an advisory body to the municipalities for the purposes of preparing, applying, and modifying the municipal or local Plan Regulador and its Regulations before their final adoption; however, the Chamber has stated that the foregoing must be understood as the formal limit of the broad guidelines, technical norms, or general directives according to which local governments must elaborate their respective plans reguladores and the corresponding urban development regulations, since it is not possible to pretend that the Plan Nacional de Desarrollo Urbano be elaborated and implemented entirely by the Central Government, without the direct intervention of the municipalities in this matter. The Chamber has considered that such a situation violates not only the most elemental principles of logic and convenience, given that it concerns the particular interests of each canton of the Republic, but also the constitutional principles of the municipal regime, established by our Fundamental Charter in Articles 168 to 175. In that context, urban planning, that is, the elaboration and implementation of plans reguladores, is a function inherent to the municipalities to the exclusion of all other public entities, except as stated regarding the general directive powers attributed to the Ministerio de Planificación and the Dirección de Urbanismo. Regarding the legal nature of plans reguladores, the criterion upheld by this Chamber is that by reason of their content and their general efficacy or mandatory nature, they must be considered as true legal norms or laws in the material sense, given that they recognize rights and establish obligations for the owners and possessors of properties located in the territorial circumscription of the respective canton. Likewise, taking into account the procedure for the formation of these regulations, it has been considered that they constitute a manifestation of direct democracy, by reason of being elaborated and approved by the respective municipalities, which find their raison d'être precisely in their conformation, that is, by the citizens or residents, in a specific territorial circumscription – canton – for the \"*administration of local interests and services*\" (Articles 169 of the Constitution and 1 of the Código Municipal) (see judgment No. 2009-012515 of eighteen hours and three minutes on August 11, 2009). Moreover, urban planning is one of the most important and transcendental tools for the satisfaction of local interests. It is the normative expression of the will and of the planning and design of collective and individual development, but without detaching itself from the national contour and the territorial and environmental unity to which they belong. The way of planning the development of human activities has a significant impact on the environment, which may be negative or positive depending on the uses and activities that are authorized. Now, in the present case and strictly in light of the actions or omissions carried out by the respondent authorities, it is observed that the Dirección de Urbanismo of the Instituto Nacional de Vivienda y Urbanismo, through note No. UR-326 of April 2, 1993, granted the land use (uso de suelo) in favor of Inmobiliaria Mas X Menos S.A., for the installation of a collection center for non-perishable grains and groceries. The land use was granted considering that it was located in an urban growth zone according to the Plan Regulador of Santa Ana, and that the plot No. SJ 17213-91 had special characteristics such as its size (5 Ha. 94.92 M2) and for which the minimum setbacks had to be 15 meters from the boundaries, a front setback of 52 meters from the main road, and a rear setback of 35 meters, which allows and guarantees a confinement of nuisances. According to what has been reported, the warehouse activity of Mas x Menos was authorized prior to the publication of the zoning maps of the Plan Regulador of Santa Ana, which occurred according to La Gaceta No. 137 of July 1, 2001, even though the cited Plan was published in La Gaceta No. 74 of April 19, 1991. However, because these are existing uses not conforming with the Zona Residencial de Alta Densidad, the Municipalidad de Santa Ana has not authorized the growth or expansion of the activities of the Mas x Menos warehouses. On these aspects, in accordance with what was indicated above, it is of merit to point out that it constitutes a matter of mere legality to determine whether the permits that allow the operation of the cited warehouses were granted in accordance with Law, as well as the prescription or not of a potential challenge thereof. This must be aired before the ordinary courts, through the exercise of the actions and procedures that the legal system establishes for that purpose. \n\n**VIII.-** Now, regarding the argued noise pollution, it is observed that it is a commercial premises with a passive warehouse where merchandise is received and distributed without any type of industrial processing, without machines or equipment. That in a visit conducted by the Oficina de Protección al Ambiente of the Ministerio de Salud on February 19, 2008, no problems were detected from the sanitary point of view at the Max por Menos Warehouses. Furthermore, the noise measurement scheduled for September 25, 2009, was not carried out because Mrs. Ruth Mahecha Martínez, owner of the dwelling, stated that it was not necessary since no noise was being generated at that time, as it is intermittent, because the vehicles (trucks and heavy transit vehicles) transit at different time intervals. Also, during another visit conducted by the Dirección Regional de Rectoría de la Salud Región Central Sur of the Ministerio de Salud on September 25, 2009, no noise was being generated at all. From this, it is deduced that it has not been possible to determine that the cited warehouses are generators of noise pollution as argued, so it is not possible to attribute any liability to the respondent private law company. The foregoing does not undermine the responsibility of the health authorities to monitor that the petitioners are not affected by possible pollution of that type, because it cannot be overlooked that it is the State's obligation that, in the face of events such as those indicated here, the necessary mechanisms be activated to eventually and anticipatorily safeguard the right to enjoy a healthy and ecologically balanced environment as well as the right to health, against possible dangers, this with the purpose of, as has been indicated, making them endure for future generations.\n\n**IX.- Regarding the rights of petition and administrative justice.**\n\nRegarding these, the appellants allege in the brief filing the appeal, the following: \"(…) Although they present this documentation, this amparo appeal filed could not be ignored, nor the multiple letters sent to the Municipal Council signed by many of the residents of Bosques de Santa Ana, regarding the multiple nuisances that your company has caused us for years, without the authorities definitively accepting our claim. (…) The facts set forth above are known to the Ministry of Environment and Energy, the Municipality of Santa Ana, the National Institute of Housing and Urbanism, and the Ministry of Health, institutions before which the corresponding administrative procedures were carried out and some before which the nuisances have been expressed. In order to end the pollution that we suffer. These entities have not resolved the stated problems and have accepted the temporary solutions that Constructora Meco and Wal Mart have offered, they have archived the nuisances as if the solutions were definitive, without following up on the actions and without demanding definitive solutions, such as eliminating the sources of the problem. We come before this Honorable Chamber because we consider that the respondent institutions violate our constitutional right to health, and the right to obtain a definitive response, not temporary solutions, from state institutions. We consider that the administrative inactivity contravenes the provisions of Article 27 of the Political Constitution, which regulates the right of petition and prompt response. Likewise, Article 41 of the Constitution regulates that we must all find redress by resorting to the laws, in a prompt and fulfilled manner, without denial and in strict conformity with the laws\". Regarding the right of petition and prompt resolution, as well as access to prompt and fulfilled justice, the jurisprudence of this Chamber is copious, according to which it has been determined that Article 27 of the Political Constitution enshrines the right of petition and prompt resolution, which consists of a power that those administered have to make petitions before public authorities. Such petitions before the Administration can be divided into simple petitions and those that do seek the recognition or granting of something: the former can be protected as a direct violation of Articles 27 or 30 of the Constitution, by the simple expiration of the legal deadline to resolve, as stipulated in Article 32 of the Law of Constitutional Jurisdiction; the latter, when they are not resolved within the legal deadline, constitute administrative delay and delay of justice, hence they are protectable for violation of Articles 27 and 41 of the Magna Carta. Nevertheless, from the documentation provided by the appellants (folios 23, 49 to 54, 62 to 72), it is not possible to determine the violation of the rights protected in the aforementioned regulations. Note that these procedures, directed to the Municipality of Santa Ana, refer to the opposition by several residents to a possible modification to the regulatory plan that would allow converting the lands where the respondent companies are located into an industrial zone. As well as the opposition to the Corporation of United Supermarkets expanding the warehouses it already has at the location. Regarding the first point, the Mayor of Santa Ana reported that this Municipality is working on a comprehensive reform of the Regulatory Plan (folio 258). From this it can be deduced that the administrative procedure itself has not concluded and for its definitive resolution it is necessary to take into account all the procedures, evidently including those referred to above, so it is not possible to argue a lack of any response. While regarding the other extreme, whose procedure was filed on August 27, 2004, (folio 49), the General Secretary of SETENA reported that a file exists, 732-2004-SETENA, called Centro de Distribución de C.S.U., in which the expansion of the warehouses was intended, but a withdrawal intervened, for which reason the file was archived by Resolution No. 2299-2005-SETENA of September 6, 2005 (folio 173). The foregoing means that this opposition lacks current interest because the proceeding they objected to was dismissed many years before this amparo was filed. Under that context, it is considered that the noted constitutional violation, and regarding the procedures that are documented, has not occurred.\n\nX.- Conclusion. As no injury to the fundamental rights alleged by the appellants, attributable to the respondents, has been verified, this appeal is declared without merit, but not without first making three calls to attention: first, to the Minister of Health so that she verifies compliance with sanitary order No. ARSSA-1583-09 issued against Constructora MECO S.A. The second call to attention is for the General Secretary of the National Environmental Technical Secretariat, the Director of Geology and Mines, and the Executive President of the Costa Rican Institute of Aqueducts and Sewers, so that they take note of the recommendation made by the General Manager of the National Service of Groundwater, Irrigation and Drainage (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento, SENARA), in protection of the water resources of the area. Third: In relation to vehicular traffic and the maintenance of cantonal public roads, the Municipality of Santa Ana must adopt the necessary measures to avoid nuisances to the residents.\"\n\nHowever, that land use does not authorize the construction of the premises, nor the construction and operating permits, which are the responsibility of the local Municipality and the Ministry of Health. The latter with regard to sanitary operation. With respect to the quarry (tajo) activity carried out by Construcción MECO, it is proven, according to the attached certified photocopy of the administrative file, that INVU did not grant any permit or authorization, as demonstrated in official letters UR. 646 of June 6, 1994, UR.952 of July 28, 1994, PE-301-94-C of August 17, 1994, UR-M-061 dated February 18, 1997. It is important to note that in official letters PE-301-94 and UR.952-94, it was indicated by your represented party that the use is non-conforming, and they state that the anomaly has been reported to the Municipality, which has taken action without any result. In addition, it states: “The appropriate course would be for the Municipality to order the closure of the work, and if this does not happen, to charge for contempt of authority, which could be penalized with imprisonment.” It requests that the appeal filed be dismissed.\n\n**5.-** Sonia Espinoza Valverde, in her capacity as Secretary General of the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA), reports under oath (folios 171 to 174) that the facts alleged in this amparo appeal are related to those alleged in file number 08-014565-0007-CO. As indicated in official letter number SG-AJ-1232-2008-SETENA of November 7, 2008, the company Constructora Meco S.A. is the lessee of two quarries (tajos) in Pozos de Santa Ana, whose environmental impact assessments (Estudios de Impacto Ambiental) were approved for files 198-94 and 058-97. The approval of the first was due to article 5 of session No. 6 of May 24, 1995, issued by the National Commission for Environmental Impact Studies (Comisión Nacional de Estudios de Impacto Ambiental, CONEIA). That of the second, to resolution number 431-97 of July 9, 1999, from that Secretariat. Regarding the zoning in which the project is currently located, it is determined that this is the competence of the Municipality of Santa Ana. Similarly, it is important to clarify that the approval of the Environmental Impact Assessment is a condition or quality of the project, which implies the scenario of harmonizing it with its surroundings, and said approval does not exempt the developer from the procedures to be complied with before other authorities, in this case the Municipality, in accordance with the competencies and regulations in force. With respect to the allegation of noise pollution, dust pollution, and regarding the roads, it points out the result of the inspection carried out on February 18, 2009, by that Secretariat (in order to answer the appeal and comply with the precautionary measure ordered by the Chamber). Focusing on the warehouses of the mentioned supermarket corporation, the following is reported: 1. Said warehouses do not have environmental viability (viabilidad ambiental). 2. There is a file, 732-2004-SETENA, called Centro de Distribución de C.S.U., in which the expansion of the same was intended, but a withdrawal occurred, for which the file was archived by resolution number 2299-2005-SETENA of September 6, 2005, and the expansion also does not have the approval of SETENA. 3. As indicated in resolution number 1630-2004-SETENA, of October 5, 2004, the original warehouse was “built approximately 10 years ago”. It requests that the appeal filed be dismissed.\n\n**6.-** By a writing received in the Secretariat of the Chamber at two twenty-five p.m. on February twenty-third, two thousand nine (folio 179), Sonia Espinoza Valverde, in her capacity as Secretary General of the National Environmental Technical Secretariat (SETENA), indicates that she provides a copy of file 058-97, which was not presented by mistake when she rendered the report.\n\n**7.-** Ana Cecilia Morice Trejos, in her capacity as Vice Minister of Health, reports under oath (folios 180 to 183) that according to information provided by the Director of the Governing Health Area (Área Rectora de Salud) of Santa Ana, who by territorial competence handles the case, on September 12, 2008, the facilities of Empresa MECO were assessed, finding them adequately covered without water accumulation. In ARSSA-1477-08, during a visit by the Environmental Manager of the Governing Health Area, it is indicated that no sanitary problems were detected at the time of the visit. In ARSSA-153-09, during a visit made on February 19, 2008, by Marco Tulio Alvarado Godoy, Health Technician 2 of the Office for the Protection of the Human Environment, it is indicated that no sanitary problems were verified. A sound measurement is being requested from Dr. Guillermo Flores Galindo, to monitor the mitigation plan for noise pollution implemented by the company Bodegas de Supermercados Unidos. She requests that the appeal filed be dismissed because the operations of both the Bodegas del Max por Menos and those of the Tajo E.D.M. are in order from a legal standpoint, and no sanitary problems were detected during the visit that was conducted.\n\n**8.-** Audrys Esquivel Jiménez, in his capacity as President of the Municipal Council of Santa Ana, reports under oath (folios 252 to 254) on what was agreed in ordinary session No. 68 of August 28, 2007, and in extraordinary session No. 53 of July 24, 2008. He points out that the case in question is part of an overall situation of tension existing between the industrial and residential sectors, which characterizes the eastern region of the Greater Metropolitan Area of San José, where it must be recognized that it was originally intended for industrial use and its services, and over time the pressure for other uses, both residential and purely commercial, gave way and various Municipal Councils were “loosening” their position and accepting new residential developments, even though the zone did not qualify as such. Thus, a historical error occurred in authorizing developments in zones that were intended for industry. Currently, the Municipality is about to begin its final phase of discussion and approval of the reforms to the Regulatory Plan (Plan Regulador), where it intends to adopt alternatives to a difficult situation and where environmental fragility indices (índices de fragilidad ambiental) are just being prepared for incorporation into said Plan, which is why it is absolutely improper, inconvenient, and inopportune to refer to technical elements that are in the preparation and preliminary analysis phase.\n\n**9.-** Gerardo Oviedo Espinoza, in his condition as Municipal Mayor of Santa Ana, reports under oath (folios 256 to 265) that the Regulatory Plan of Santa Ana was published in La Gaceta No. 74 of April 19, 1991; however, the zoning map, which is the graphic expression of the regulatory text, was not published with it. The zoning map was published in La Gaceta No. 137 of July first, 2001. The quarries (tajos) (today managed by Constructora MECO S.A.) were authorized the mining concession processed under administrative files No. 2366 and 2479 in the years 1995 and 1997, respectively. Concessions granted by MIRENEM (today MINAET) without consulting the Municipality and without requiring a land-use certificate (certificado de uso de suelo) as a prerequisite. Similarly, the warehouse activity of Más x Menos was authorized prior to the publication of the Regulatory Plan maps. The dump trucks, tanker trucks, and other heavy-load vehicles must only transit on roads that are national and the main access road to the sector, not on the internal streets of the Urbanización Bosques de Santa Ana. The parking of machinery and equipment used by the company MECO is part of the extraction and sale activity of construction aggregates that, since 1995, has had Mining Concession No. 2366 and a commercial license granted by municipal agreement adopted in ordinary session No. 3 of May 12, 1998. That Municipality is working on a comprehensive reform of the Regulatory Plan, and in Ordinary Session No. 60 of July 3, 2007, the Council had agreed that the sector where the quarries (tajos) and the Más x Menos warehouses are located be established as an industrial and business zone in which the uses of extraction and warehouses would be conforming. He clarifies that the zone proposed to be industrial and business only includes the lots where the quarries (tajos) and warehouses are located, which are large and have no constructions, while the Urbanización Bosques de Santa Ana remains a High-Density Residential Zone. In Extraordinary Session No. 53 held on Thursday, July 24, 2008, the complainants who, together with other residents of the Urbanización Bosques de Santa Ana, gave a presentation on the problems they suffer due to heavy traffic were attended to, and the Council agreed to the following: “To revoke the agreement contained in the minutes of ordinary session No. 60 held by this Municipal Council on July 3, 2007, and to modify the industrial and business zone in Pozos to a use consistent with the residential use it now has (High-Density Residential). To empower the Urban Planning and Regulatory Plan Commission to issue an opinion on the environmental recovery of the zone.” The municipal authorizations for the quarries (tajos) to operate were given by agreement of the Municipal Council when, although the Zoning Regulation (Reglamento de Zonificación) was published, the corresponding map, which is the graphic expression that allows locating each zone and its extension, was not. The same occurred with the authorization given for the operation of the Más x Menos warehouses. However, because these are existing non-conforming uses with the High-Density Residential Zone, the Municipality has not authorized the growth or expansion of these activities. Now then, in this case no mention is made of the view provided by Google Earth since it is outdated and has been prepared by a company unrelated to that Municipal Corporation, and in that sense, its veracity regarding the current reality cannot be guaranteed. Finally, regarding the issue of environmental fragility indices (índices de fragilidad ambiental), it is necessary to highlight that this study, contracted to Mr. Allan Astorga, has not yet been delivered in its entirety by him, which is why it has not been reviewed or approved by the Municipal Council or the administration. In this sense, it is necessary to reiterate that with the aforementioned fragility indices, a comprehensive reform to the regulatory plan will be proposed, which has not yet occurred. He points out that file 08-14565-0007-CO deals with this same topic. He requests that the appeal be dismissed.\n\n**10.-** Magda Verdesia Solano, in her condition as Legal Representative of Constructora MECO S.A., reports (folios 267 to 270) that if observed carefully, the appellants at no time accuse any environmental damage; it could not be otherwise since, as is evident in the reality of the facts, there has been none. Any variation that the classification of the zone might have in the future cannot have retroactive effects to the detriment of acquired rights.\n\n**11.-** By a writing received in the Secretariat of the Chamber at five twenty-nine p.m. on May twenty-second, two thousand nine (folios 286 and 287), Norman Coto Kikut, in his condition as representative of Corporación de Supermercados Unidos S.A., indicates that in accordance with the response rendered by the Ministry of Environment, Energy and Telecommunications and by the National Environmental Technical Secretariat (SETENA), he requests that the amparo appeal be dismissed with respect to his represented party.\n\n**12.-** By a writing received in the Secretariat of the Chamber at five twenty-nine p.m. on May twenty-second, two thousand nine (folios 288 to 290), Norman Coto Kikut, in his condition as representative of Corporación de Supermercados Unidos S.A., indicates that in accordance with the response rendered by the President of the Municipal Council and the Municipal Mayor of Santa Ana, he requests that the amparo appeal be dismissed with respect to his represented party.\n\n**13.-** By a writing received in the Secretariat of the Chamber at five twenty-nine p.m. on May twenty-second, two thousand nine (folios 291 to 293), Norman Coto Kikut, in his condition as representative of Corporación de Supermercados Unidos S.A., indicates that in accordance with the response rendered by the Vice Minister of Health, he requests that the amparo appeal be dismissed with respect to his represented party.\n\n**14.-** By a writing received in the Secretariat of the Chamber at five thirty p.m. on May twenty-second, two thousand nine (folios 294 and 295), Norman Coto Kikut, in his condition as representative of Corporación de Supermercados Unidos S.A., indicates that in accordance with the response rendered by INVU, he requests that the amparo appeal be dismissed with respect to his represented party.\n\n**15.-** By resolution at two fifty-six p.m. on July 10, 2009 (folios 296 to 298), the Minister of Environment, Energy and Telecommunications and the Secretary General of the National Environmental Technical Secretariat (SETENA) were cautioned to refer to what was pointed out by the appellants regarding the alleged risk of contamination of the aquifer (manto acuífero) due to the work carried out by Constructora Meco S.A., also considering that the Hydrogeological and Quarry Contamination Risk Study (Estudio Hidrogeológico y de Riesgo de Contaminación de Cantera) signed by Roberto Protti, to which they refer and which is contained in the certification of the administrative file provided, dates from January 2002.\n\n**16.-** Sonia Espinoza Valverde, in her capacity as Secretary General of the National Environmental Technical Secretariat (SETENA), reports (folios 302 to 305) that the Environmental Fragility Indices (Índices de Fragilidad Ambiental, IFA) are only one of the requirements that must be submitted to that Secretariat as part of the environmental planning of land use stipulated in the Manual of Technical Instruments for the Environmental Impact Assessment process (Manual de EIA) –Part III- Decree No. 32967-MINAE, in order to be eligible for Environmental Viability (License) (Viabilidad (Licencia) Ambiental). The arguments put forward by the appellants are not recorded nor are they admissible by SETENA, since that Institution is unaware of the scope of the Environmental Fragility Indices contracted by the Municipality of Santa Ana, because they have not yet been submitted, much less analyzed by the technical staff of that Institution. Furthermore, and in reference to the vulnerability of aquifer contamination due to the activities carried out by the Quarry (Tajo), it must be indicated that the Environmental Impact Assessment (Estudio de Impacto Ambiental) for this project was submitted before the Interinstitutional Commission for the Evaluation and Control of Environmental Impact Studies (Comisión Interinstitucional de Evaluación y Control de Estudios de Impacto Ambiental) on November 3, 1994, prior to the creation of SETENA and the instruments used today in the Environmental Impact Assessment process; nevertheless, the groundwater and contamination vulnerability chapter is presented in this document, where it mentions on page 30 that within the geological formations that make up the project area, being formed of materials with low conductivity and permeability, there is no danger of contamination to more permeable materials, such as could be the underlying lavas that could have aquifer capacity. As a complement and part of the process of updating information in the administrative file maintained at SETENA, there is a record of the submission by the developer of the Hydrogeological Contamination Risk Study (Estudio Hidrogeológico de Riesgo de Contaminación), which was approved by the Directorate General of Geology and Mines (Dirección General de Geología y Minas), which circumscribes the area where the exploitation work of the Tajo Santa Ana is carried out. This study included, for its preparation, a field phase where drilling was performed to strengthen the analysis conducted; in it, Hydrogeologist Roberto Protti certifies, according to the stratigraphy of the aquifer, that the local bedrock forms a negative or no-flow barrier due to the low permeability of the volcanic rocks, which agrees with the data provided in the Environmental Impact Assessment. It is indicated at the same time that SETENA will schedule another field inspection as soon as possible by officials from the Department of Environmental Auditing and Follow-up (Departamento de Auditoría y Seguimiento Ambiental) in order to continue the monitoring process of the quarry (tajo) activities. Regarding the related responsibilities of the developer, SETENA certifies on July 15 of the current year through SG-AJ-606-2009-SETENA that the Environmental Viability (License) of the Tajo Santa Ana project is in force, as well as that the environmental commitments assumed by the developer, such as the environmental reports and keeping the amount of the environmental guarantee (garantía ambiental) up to date, are current. It requests that the appeal be dismissed.\n\n**17.-** Jorge Rodríguez Quirós, in his condition as Minister of Environment, Energy and Telecommunications, reports (folios 339 to 346) in similar terms to the Secretary General of SETENA (folios 302 to 305). He adds that regarding the related responsibilities of the developer, SETENA certifies on July 15, 2009, through SG-AJ-606-2009-SETENA, that the Environmental Viability (License) of the Tajo Santa Ana project is in force, as well as that the environmental commitments assumed by the developer, such as the environmental reports and keeping the amount of the environmental guarantee up to date, are current. Regarding the mining activity in the conflict zone, he reports on the work carried out by the Directorate of Geology and Mines (Dirección de Geología y Minas), which is the competent entity to regulate mining activity. With respect to the actions on mining file number 2479, the Directorate of Geology and Mines informs that Ministerial Office that the lessee company presents a series of well monitoring reports. He requests that the appeal be dismissed.\n\n**18.-** By a writing received in the Secretariat of the Chamber at three ten p.m. on August eighteenth, two thousand nine (folios 396 and 397), Magda Verdesia Solano, in her condition as representative of Constructora Meco S.A., indicates that, as stated in point e) of the “Conclusions” presented by the Director of the National Mining Registry (Registro Nacional Minero), in her official letter DGM/RNM 629-2009 of July 27, 2009, it is not true that there is an “exposed water table (nivel freático expuesto)”, as the appellant party irresponsibly claims. That statement is extracted from a report without a scientific basis, which was prepared without a site visit or field analysis and based on a Google Earth observation. The former is irresponsible and the latter is an unreliable source, being flimsy and superficial.\n\n**19.-** By resolution at twelve fifty-nine p.m. on September 18, 2009 (folios 402 and 403), the Vice Minister of Health was cautioned to render the sound measurement of the actions of Corporación de Supermercados Unidos and of Constructora Meco S.A.\n\n**20.-** By a writing received in the Secretariat of the Chamber at three thirty-one p.m. on September thirtieth, two thousand nine (folios 406 to 410), Ana Cecilia Morice Trejos, in her condition as Vice Minister of Health, reported regarding the sound measurement for Supermercados Unidos as indicated by official letter URS-RCS-2011-09 of September 29, 2009. With respect to the inspection carried out at several quarries (tajos) in the Pozos de Santa Ana area, Eng. José Mario Gutiérrez Soto of the Health Governing Unit of the Central South Region (Unidad Rectoría de la Salud de la Región Central Sur) reported the result through official letter URS-RCS-2009-2009 dated September 29, 2009. Based on the inspections conducted by both Lic. Luis Fernando Retana Segura and Eng. José Mario Gutiérrez Soto, officials of the Health Governing Unit of the Central South Region, Dr. Ana Cecilia Víquez Pérez, Director of the Governing Health Area of Santa Ana, through official letter ARSSA-1598-09 of September 29 of the current year, requests the Traffic Engineering Directorate of the Ministry of Public Works and Transport (Ministerio de Obras Públicas y Transportes) to conduct an inspection of vehicle flow of machinery and heavy vehicles in the vicinity of Residencial Bosques de Santa Ana, specifically in front of the Bodegas de Más por Menos, as this falls outside the competence of the Ministry of Health. In addition, Sanitary Order No. ARSSA-1583-09 was issued to Mr. Marco Alfaro Vega, Manager of Tajo EDM de Costa Rica, Constructora MECO S.A., granting a period of 10 days to present a plan establishing the dates on which the studies indicated by Eng. José Mario Gutiérrez Soto of the Health Governing Unit of the Central Region, in official letter URS-RCS-2009-2009 dated September 29 of the current year, will be carried out. She requests that the appeal be dismissed.\n\n**21.-** Magistrate Fernando Castillo Víquez recused himself from hearing this matter on March 22, 2010 (folio 418).\n\n**22.-** By resolution at one forty-three p.m. on March 24, 2010 (folio 419), the acting President of the Chamber accepted the recusal of Magistrate Fernando Castillo Víquez and ordered that his substitution be requested from the Presidency of the Supreme Court of Justice.\n\n**23.-** On March 25, 2010, the Office of the Presidency of the Supreme Court of Justice communicated that Magistrate Enrique Napoleón Ulate Chacón was appointed to hear this amparo.\n\n**24.-** By resolution at eleven thirty-six a.m. on April 13, 2010 (folios 422 to 425), the appeal was expanded against the Executive President of the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados), the Director of Water (Director de Aguas) and the Director General of Geology and Mines (Director General de Geología y Minas) of the Ministry of Environment, Energy and Telecommunications, and the Manager of the National Service for Groundwater, Irrigation and Drainage (Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento).\n\n**25.-** Bernal Soto Zúñiga, in his condition as General Manager of the National Service for Groundwater, Irrigation and Drainage (SENARA), reports (folios 430 to 433) that in that Unit there is no record of any procedure for the operation of the Quarry (Tajo) referred to in this amparo. Nor has SENARA reviewed, approved, or endorsed specific hydrogeological studies for the operation of the quarry (tajo) in question. The Tajo of Constructora Meco S.A. is physically located on the left bank of the Río Virilla. According to information derived from hydrogeological studies carried out or registered with SENARA, to date, the right bank of the Río Virilla is characterized by the presence of large and productive superimposed aquifers (acuíferos), originating and developed within the volcanic rock formations of Colima (Intra-Cañón), Barva, and Tiribí (Avalancha Ardiente). These are exploited as wells and spring (manantiales) catchments, all with great productive capacity (e.g., La Valencia, La Libertad, Puente de Las Mulas, and Potrerillos). However, these aquifers discharge into the Río Virilla, and there is no hydraulic communication between aquifers in any direction across its banks. The extraordinary quality of these aquifers on the right bank of the Río Virilla is a consequence of the combination of particular hydrogeological factors, sufficient extension and homogeneity of the rock units, particularly those that favor recharge and flow, favorable hydrodynamic characteristics (transmissivity, storage coefficient, position of the seal layers, hydraulic conductivity), and others. This condition changes completely on the left (south) bank of the Río Virilla, because although some lithologies from the right bank appear on the left, their extension is very limited and they do not have adequate recharge areas or communication with lateral flows. The aquifers, when they exist, are of poor quality, not very extensive, of low hydrodynamic quality and productivity. The excavation of the deep canyon of the Río Virilla has penetrated below the top of the rocks of the Lower Colima, which has left the Avalancha Ardiente Formation (Upper Colima, Puente de Mulas) completely exposed.\n\nThis results in the drainage of its aquifer toward the river and discontinues the hydraulic communication with the left bank. There is no possibility of flow occurring between both banks, much less from left to right. The scarce recharge of the small aquifers of the left bank (Pozos, Honduras de Santa Ana, Uruca) occurs through infiltration within the small catchment basins of the hills (Alto Las Palomas, Coyote, Real de Pereira) and the alluvial deposits (Aluviones) of the Río La Uruca. The Unidad de Colima Superior does not form a significant aquifer, since the canyon of the Río Virilla constitutes a natural barrier that prevents flow in any direction (from the right bank to the left and vice versa). Likewise, the coverage area of these volcanic deposits on the left bank is so small that there is no significant possibility of recharge and the volume of water they contain depends solely on rainwater infiltration. That is why this material is found dry in the pit (tajo). Under that unit, there is barely a seasonal partial saturation level at a depth of around 25 meters (according to a hydrogeological study (estudio hidrogeológico) conducted under the professional direction of geologist Roberto Protti in 1996), suspended or perched on a paleosol that characterizes the roof of Grifo alto. The Hydrogeological and Contamination Risk Study (Estudio Hidrogeológico y de Riesgo a la Contaminación) (2002) also concludes that the Grifo Alto rocks, particularly in their lower fractured and unaltered levels, give rise to a low-potential local aquifer, of a semi-confined to unconfined (freático) type. Using the Foster and Hirata GOD method, the aquifer contamination vulnerability index of the local Grifo alto aquifer is 0.15, ranging from low to very low. As conclusions: 1. Although the volcanic materials appearing on the left bank (pit under study) are the same as those on the right bank where very important aquifers develop (Puente de Mulas), the aquifers are not the same; whereas on the right bank they are highly productive, on the left bank, due to their small recharge areas, they are not saturated and only generate small, low-potential aquifers. 2. Rainwater that infiltrates the pit drains partly toward the Virilla River and partly feeds the lower aquifer that develops near the Grifo Alto Formation, of low aquifer potential. 3. The determination of the vulnerability of the Grifo Alto formation (base of the pit) provided by Geologist Roberto Protti in the studies conducted was made with a single hydraulic conductivity test, which, together with data on porosity, rock type, and aquifer, allows classifying the aquifer as having low vulnerability. 4. It is recommended, for purposes of assessing the current situation, to conduct more hydraulic conductivity tests and recalculate the transit times and the intrinsic vulnerability of the aquifer. Furthermore, an inventory of possible contamination sources in the extraction development of the pit should be carried out and measures taken to prevent the infiltration of contaminating substances into the aquifer. 5. It is also recommended to install piezometers in the pit, with the objective of verifying the groundwater level and its relationship with the elevations (cotas) or levels of rock extraction. These levels to be measured are also important for the construction of the flow model for the continuous monitoring of groundwater. During the process of constructing the piezometers, provisions can be made for water quality sampling. It requests that the appeal (recurso) be dismissed.\n\n**26.-** José Francisco Castro Muñoz reports, in his capacity as Director of the Dirección de Geología y Minas of the Ministerio del Ambiente, Energía y Telecomunicaciones (folios 434 to 439), that to date there is no communication within the administrative files from SETENA, the agency legally competent to determine the existence of environmental contamination, indicating that the company cannot carry out work due to an environmental problem. There is also no official communication (oficio) from the Municipality of Santa Ana informing them of the suspension of work due to the company's non-compliance with obligations before the municipality. It requests that the appeal (recurso) be dismissed.\n\n**27.-** Ricardo Sancho Chavarría reports under oath, in his capacity as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados (folios 442 to 449), that the Tajo Meco is not within the Puente Mulas Aquifer Reserve Area (Área de Reserva Acuífera) demarcated by AyA. According to the report entitled “*Water Use Rights or Sites of Use (Aprovechamiento) for Population Supply by operational regions of Acueductos y Alcantarillados*”, the Tajo Meco is located on the left bank of the Virilla River at a straight-line distance of 880 m from Tunnel 1 of Puente Mulas, 850 m in a straight line from Tunnel 2 Puente Mulas, and 785 m in a line from Tunnel 3 Puente Mulas. These uses (aprovechamientos) of AyA are located upstream of Tajo Meco and on the right bank; therefore, they are not affected by this activity because the Puente Mulas Tunnels are located in a discharge zone of the Colima Superior aquifer to the Virilla River. He adds that in relation to the Fuente Potrerillos-AyA use (aprovechamiento), located on the right bank of the Virilla River, Tajo Meco is on the left bank at a distance of 2 km. Therefore, this use is not affected by the activity of that pit, which is tapping the Colima Inferior Aquifer. Consequently, the activity of Tajo Meco does not affect the uses for public supply and the Aquifer Reserve Zone of the Instituto Costarricense de Acueductos y Alcantarillados. It requests that the appeal (recurso) be dismissed.\n\n**28.-** José Miguel Zeledón Calderón reports under oath, in his capacity as Director of the Dirección de Aguas of MINAET (folios 456 to 458), that it has not been proven that the Colima aquifer outcrops on the left bank of the Virilla River, as indicated by the appellants (recurrentes). The foregoing is based on hydrogeological studies (estudios hidrogeológicos) presented to the Secretaría Técnica Nacional Ambiental (SETENA) and studies conducted by the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) and the Government of Great Britain (BGS) in said area. That it is true that on the right bank of the Virilla River, a large number of springs (manantiales) outcrop, generated in fractured lava rocks belonging to the Puente de Mulas aquifer, which, together with water wells, are tapped by AyA. The pit of Constructora Meco is located on the left bank of the Virilla River, with the canyon of the latter acting as a negative barrier to the activities generated on the left bank of said river. He points out that it is not possible to determine the exposed water table (nivel freático) referred to by the appellants through the Google Earth system. What is observed is a lagoon originating from the large amount of rain, which, due to the presence of the Grifo Alto Formation, which has low conductivity and permeability, does not allow these waters to drain and remain on the site for some time. That, as observed on the map of restriction and prohibition (veda) zones declared by AyA, the most important aquifers of the Central Valley are located on the right bank of the Virilla River. The zones located on the left bank of the Virilla River are not aquifer zones of such relevance as asserted by the appellants, but rather consist of the Grifo Alto aquitard (acuitardo). Furthermore, from the hydrogeological contamination risk study, hydrogeologist Roberto Protti Quesada carried out drilling to certify the aquifer's stratigraphy, where it was proven that the rock basement acts as a negative barrier due to the permeability of the volcanic rocks. During the field visit conducted by officials of SETENA on February 18, 2009, according to official communication No. ASA-509-SETENA, there is no record of findings determining the exposure of any outcrop in the quarry area. He points out that both the Secretaría Técnica Nacional Ambiental (SETENA) and the Dirección General de Geología of the Ministerio del Ambiente, Energía y Telecomunicaciones (MINAET) approved the environmental feasibility studies (estudios de viabilidad ambiental), the hydrogeological studies, the aquifer vulnerability studies, and the contaminant transit studies. Field and monitoring visits to the pit are also scheduled by the Department of Environmental Auditing and Monitoring (Departamento de Auditoría y Seguimiento Ambiental) of SETENA to verify compliance with the provisions contained in SETENA's resolution for the mining company. It requests that the appeal (recurso) be dismissed.\n\n**29.-** The legal requirements have been observed in the procedures followed.\n\nMagistrate **Ulate Chacón** prepares the draft; and,\n\n**Considering:**\n\n**I.- Regarding the amparo against subjects of private law.** The Constitutional Chamber (Sala Constitucional), in cases similar to this one, has developed the scope of the provisions of Article 57 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), regarding the recurso de amparo against subjects of private law. Indeed, this proceeding is not only available against actions and omissions of subjects of public law that violate or threaten to violate any fundamental right, but also against actions or omissions of subjects of private law, when they act or must act in the exercise of public functions or powers, or are, de jure or de facto, in a position of power against which common jurisdictional remedies are clearly insufficient or tardy to guarantee the full enjoyment of the rights enshrined in the Political Constitution and in the International Human Rights Instruments in force in the Republic (concerning this, see Judgment No. 2000-03337 at 19:26 on April 25, 2000). In this specific case, it is evident that Corporación de Supermercados Unidos S.A. and Constructora MECO S.A., as subjects of private law, are in a position of power with respect to the protected parties, against which common jurisdictional remedies may be insufficient or tardy to enforce the rights they consider violated. For this reason, the Constitutional Chamber must hear the merits of this amparo proceeding.\n\n**II.- Purpose of the recurso.** The appellants, residents of the Urbanización Bosques de Santa Ana, located in Pozos de Santa Ana, state that since 1994, the company Constructora Meco, S.A. has been established in that area with a pit (tajo), warehouses, and administrative offices, even though said site is a \"*high-density residential zone*\" according to the Regulatory Plan (Plan Regulador), which implies that the place is not suitable for the operation of industries, warehouses, sawmills, and other activities that cause nuisance to the neighborhood. Due to the existence of the pit, they suffer dust contamination and noise pollution (contaminación sónica) from the constant passage of heavy vehicles 24 hours a day, in addition to the soils being unstable as a consequence of material extraction. The community of Bosques de Santa Ana, they add, is located right next to Constructora Meco, and on what the environmental fragility index calls: \"*the most important aquifers of the Central Valley*\", so the most sensible thing would be to eliminate said mining activity. On the other hand, they allege that for several years, Corporación de Supermercados Unidos has installed a commercial premises with warehouses in the area, despite it being a residential zone, and therefore, industry or commerce cannot be located in that place. The Instituto Nacional de Vivienda y Urbanismo, they claim, granted permits to the referred corporation, contradicting what is prescribed in the regulatory plan. Said company has not confined the nuisances produced by its commercial activities, a situation aggravated by the inertia of the respondents (recurridos), who have not provided an effective solution to the contamination problem. For this reason, they accuse that their constitutional right to health and to obtain a definitive administrative response has been violated, and not temporary solutions, claiming that Articles 27 of the Constitution, which protects the right of petition and prompt response, and Article 41, have been infringed, since they consider they have not found a response to their administrative procedures.\n\n**III.- Proven facts.** Of importance for the decision of this matter, the following facts are deemed duly proven, either because they have been accredited or because the respondent has omitted to refer to them as provided in the initial order:\n\na. The company Constructora Meco S.A., is the lessee of two pits (tajos) in Pozos de Santa Ana, whose Environmental Impact Studies (Estudios de Impacto Ambiental) were approved for files 198-94 and 058-97. The approval of the first was due to Article 5 of session No. 6 of May 24, 1995, issued by the Comisión Nacional de Estudios de Impacto Ambiental (CONEIA). That of the second to resolution number 431-97 of July 9, 1999, of that Secretariat (report on folios 153 to 160).\nb. The Secretaría Técnica Nacional Ambiental (SETENA) and the Dirección General de Geología of the Ministerio del Ambiente, Energía y Telecomunicaciones (MINAET) approved the environmental feasibility studies, the hydrogeological studies, the aquifer vulnerability studies, and the contaminant transit studies of Tajo Meco (report on folios 456 to 458).\nc. At the entrance of Tajo Meco, there is a (prior) parking area for the carts waiting to be loaded, which is located within the property of the MECO company, so the public road is not obstructed at any time (report on folios 171 to 174).\nd. In the machinery transit area, no oil stains were observed on the ground, which indicates that, at first glance, the machinery is in good condition (report on folios 171 to 174).\ne. The sources of noise, smoke, dust, and gases are multiple in the area adjacent to the MECO company, due to the large number of industries and other nearby productive activities and the high transit of vehicles and heavy machinery, coupled with the poor condition of the street separating the industrial zone from neighboring residential areas (report on folios 406 to 410).\nf. At Tajo Meco, no evidence of dust contamination from the pit's own activities was found, as they are geographically confined by considerable slopes, and there is constant monitoring of the covering of material transport trucks, and the transit areas of the pit are frequently watered (report on folios 406 to 410).\ng. The noise in the processing area is characteristic of this type of activity, where rocky material is processed from a larger size to a smaller one, but when moving away from the site, near the urban development (urbanística) area, noise is not perceived (report on folios 171 to 174).\nh. Tajo Meco is not within the Puente Mulas Aquifer Reserve Area demarcated by AyA (report on folios 442 to 449).\ni. The activity of Tajo Meco, which is located on the left bank of the Virilla River, does not affect the uses (aprovechamientos) for public supply and the Aquifer Reserve Zone of the Instituto Costarricense de Acueductos y Alcantarillados (report on folios 442 to 449).\nj. The pit of Constructora Meco is located on the left bank of the Virilla River, with the canyon of the latter acting as a negative barrier to the activities generated on the left bank of said river (report on folios 456 to 458).\nk. The most important aquifers of the Central Valley are located on the right bank of the Virilla River, and those located on the left bank are not such relevant aquifer zones (report on folios 456 to 458).\nl. Although the volcanic materials appearing on the left bank (pit under study) are the same as those on the right bank where very important aquifers develop (Puente de Mulas), the aquifers are not the same; whereas on the right bank they are highly productive, on the left bank, due to their small recharge areas, they are not saturated and only generate small, low-potential aquifers (report on folios 430 to 433).\nm. On the right bank of the Virilla River, a large number of springs (manantiales) outcrop, generated in fractured lava rocks belonging to the Puente de Mulas aquifer, which, together with water wells, are tapped by AyA (report on folios 456 to 458).\nn. The Dirección de Urbanismo of the Instituto Nacional de Vivienda y Urbanismo, through note No. UR-326 of April 2, 1993, granted land use (uso de suelo) in favor of Inmobiliaria Mas X Menos S.A., for the installation of a collection center for non-perishable grains and groceries (report on folios 165 to 168).\no. The land use in favor of Inmobiliaria Mas X Menos S.A. was granted considering it was located in an urban growth zone according to the Regulatory Plan (Plan Regulador) of Santa Ana, and that the property No. SJ 17213-91, had special characteristics such as its size (5 Ha. 94.92 M2) and for which the minimum setbacks had to be 15 m from the boundaries, a front setback of 52m from the main road, and a rear setback of 35 meters, which allows and guarantees confinement of nuisances (report on folios 165 to 168).\n\np. The Más x Menos warehouse activity was authorized prior to the publication of the zoning maps of the Santa Ana Regulatory Plan (Plan Regulador de Santa Ana), which occurred according to La Gaceta No. 137 of July 1, 2001, even though the cited Plan was published in La Gaceta No. 74 of April 19, 1991 (report on folios 256 to 265).\n\nq. Because these are existing uses that are non-conforming with the High-Density Residential Zone (Zona Residencial de Alta Densidad), the Municipality of Santa Ana has not authorized the growth or expansion of the Más x Menos warehouse activities (report on folios 256 to 265).\n\nr. It is a passive warehouse where merchandise is received and distributed without any type of industrial processing, without machines or equipment, so no nuisance exists (folios 139 to 146),\n\ns. During a visit conducted by the Environmental Protection Office of the Ministry of Health on February 19, 2008, no problems were detected from a sanitary standpoint at the Max por Menos Warehouses (report on folios 180 to 183, document on folio 186).\n\nt. The sonic measurement scheduled for September 25, 2009, was not carried out because Mrs. Ruth Mahecha Martínez, the homeowner, stated it was not necessary since no noise was being generated at that moment, as it is intermittent, because the vehicles (dump trucks and heavy transit vehicles) travel with different time intervals (report on folios 406 to 410).\n\nu. During a visit conducted by the Regional Directorate of the Health Stewardship (Rectoría de la Salud) Central South Region of the Ministry of Health on September 25, 2009, at the Bodegas de Supermercados Unidos, no noise was being generated (report on folios 406 to 410, document on folio 407).\n\n**IV.- On the merits.** In this case, the appellants argue an infringement of their fundamental rights due to actions based on various facts by two private-law entities, namely, the company Constructora Meco S.A. and the Corporación de Supermercados Unidos, so the conduct of each will be analyzed separately, except regarding the rights protected by Articles 27 and 41 of the Magna Carta, which will be done jointly. However, beforehand it is considered meritorious to reiterate that the Chamber has emphasized the necessary balance between the country's development and the right to the environment. The Chamber recognized the right to a healthy and ecologically balanced environment as a fundamental right, even before the constitutional reform of Article 50 went into effect, through a systematic, material, and evolutionary interpretation of Articles 6, 11, 69, and 89, providing different responses to the conflict between private interests (freedom of enterprise) and collective interests, establishing the protection, preservation, and rational exploitation of forest resources as principles of constitutional order (Judgment No. 2233 of May 28, 1993). The presence of diffuse interests has also been recognized to legitimize actions for the sake of protecting the environment, when reacting to illegitimate acts or omissions, precisely because the most frequent violation of the environment occurs due to the inertia of public authorities in performing the acts necessary to protect it (Judgment No. 3707 at 3:00 p.m. on July 30, 1993, and No. 4422 at 10:30 a.m. on September 7, 1993). Likewise, the Chamber has highlighted the need for awareness in the governmental sphere and in private activities of the importance of the environment for human health. Human life is conceived as the foundation, the necessary and determining condition for the existence of the person. All of this within the national, regional, and world economy, through the conservation of nature and of life itself in its broadest sense (Judgment No. 4423 at 12:00 p.m. on September 7, 1993). Thus, with the implementation of the reform to constitutional Articles 46 and 50, the right to the protection of health, environment, safety, and economic interests of consumers is consolidated in the formal constitution. It is clear that environmental protection must be directed toward the adequate and intelligent use of its elements and in their natural, sociocultural, technological, and political relationships (sustainable development), in order to safeguard the heritage to which present and future generations are entitled. Therefore, the primary objective of the use and protection of the environment is that, through production and the use of technology, not only economic gains (freedom of enterprise) are obtained but also a favorable development and evolution of the environment and natural resources with the human person, that is, without causing damage or harm:\n\n\"This Chamber has also recognized that both the right to health and to an environment free of contamination, without which the former could not be made effective, are fundamental rights, so that it is the State's obligation to provide for their protection, either through general policies aimed at that end or through specific acts by the Administration. Sustainable development is one of those general policies that the State issues to expand the possibilities for everyone to fulfill their aspirations for a better life, increasing production capacity or expanding the possibilities of achieving equitable progress between demographic growth or between it and natural systems. Sustainable development is the process of transformation in the use of resources, the direction of investments, the channeling of technological development, institutional changes, and anything that contributes to meeting the human needs of the present and the future\" (judgment number 1763-94, at four forty-five p.m. on April thirteen, nineteen ninety-four).\n\nThe Chamber has indicated that the environment must be understood as a potential for development to be used appropriately, and action must be taken in an integrated manner regarding its natural, sociocultural, technological, and political relationships, since otherwise, its productivity for the present and the future is degraded and the heritage of future generations could be put at risk. The origins of environmental problems are complex and correspond to an articulation of natural and social processes within the framework of the socioeconomic development style adopted by the country. For example, environmental problems occur when the modes of exploiting natural resources lead to a degradation of ecosystems exceeding their capacity for regeneration, which results in broad sectors of the population being harmed and generates a high environmental and social cost that leads to a deterioration in the quality of life; for precisely the primary objective of the use and protection of the environment is to achieve development and evolution favorable to the human being. Environmental quality is a fundamental parameter of that quality of life; other no less important parameters are health, food, work, housing, education, etc., but more important than that is understanding that while the human person has the right to use the environment for their own development, they also have the duty to protect and preserve it for the use of present and future generations, which is not so novel, because it is merely the translation to this area of the principle of \"injury\" (*lesión*), already consolidated in common law, by virtue of which the legitimate exercise of a right has two essential limits: On the one hand, the equal rights of others and, on the other, the rational exercise and useful enjoyment of the right itself. Our country has depended and will continue to depend, like any other nation, on its natural resources and environment to meet the basic needs of its inhabitants and keep operating the productive apparatus that sustains the national economy, the main source of which is agriculture and, in recent years, tourism, especially in its ecotourism dimension, to which agrotourism and community rural tourism are added. Soil, water, air, marine and coastal resources, forests, biological diversity, mineral resources, and the landscape make up the environmental framework without which basic demands—such as living space, food, energy, housing, sanitation, and recreation—would be impossible. Likewise, our economy is also intimately linked to the state of the environment and natural resources. On the other hand, the goals of sustainable development have to do with the survival and well-being of the human being and with the maintenance of essential ecological processes, that is, environmental quality and the survival of other species. Speaking of sustainable development in terms of satisfying present and future human needs and improving the quality of life is speaking about the demand for natural resources at the individual level and the direct means or support necessary for the economy to function, generating employment and creating capital goods, which in turn make possible the transformation of resources into consumer, production, and export products. The declaration made at the Earth Summit in 1992 proclaimed and recognized the integral and interdependent nature of the planet; this means the acceptance of certain principles that inform the transition from current development styles to sustainability. The signatory States, among which Costa Rica figures, committed themselves, within the preservation of sustainable development, to the protection above all of the human being. It started from the principle that every person has the right to a healthy and productive life in harmony with nature; the right of present and future generations for development to be carried out in such a way that it satisfies their environmental and progress needs was included; the sovereign power of States to exploit their resources was maintained, emphasizing their responsibility to ensure that activities carried out within their jurisdiction and control do not cause environmental damage to other States or areas beyond the limits of their national jurisdiction. They established the duty of States to cooperate in the conservation, protection, and restoration of the environment and their common responsibilities in that regard; in that way, international cooperation in the promotion and support of economic growth and sustainable development will allow better addressing the problems of environmental degradation. But furthermore, it must be noted that in accordance with the provisions of Article 50 of the Constitution, the Organic Environmental Law establishes the responsibility of anyone who contaminates the environment or causes it damage (Article 2, subsection d). Damage or contamination to the environment can be produced by conduct through action or omission and is attributable to all individuals or legal entities that carry them out (Article 98), and the owners of the companies or the activities that cause the damages are considered jointly and severally liable, whether by action or omission (Article 101).\n\n**V.- Regarding the company Constructora Meco S.A.** Regarding this company, the appellants, who are residents of the Urbanización Bosques de Santa Ana, located in Pozos de Santa Ana, state that since 1994 it set up in the area with a quarry (tajo), warehouses, and administrative offices, despite the fact that said area is—according to the Regulatory Plan—a \"high-density residential zone\" (*zona residencial de alta densidad*), which implies that this place is not suitable for the operation of industries, warehouses, sawmills, and other activities that cause nuisances to the neighborhood. In fact, there is a declaration from the National Institute of Housing and Urbanism (INVU), which indicates that in August 1994 it did not grant construction permits for industrial activities in that area. Due to the existence of the quarry, they suffer from dust contamination and noise pollution (contaminación sónica) from the constant passage of heavy vehicles 24 hours a day, besides the fact that the soils are unstable as a consequence of material extraction and the streets surrounding the Residential area are destroyed. They add that the Bosques de Santa Ana community is located right next to Constructora Meco, and on what the environmental fragility index calls: \"the most important aquifers (mantos acuíferos) of the Central Valley,\" so the most sensible thing would be to eliminate the mining activity from the area. The previous disagreement raised by the appellants, and practically for the same facts, was already under the knowledge of this Chamber, due to amparo action No. 08-014565-0007-CO filed by María Antonieta Alegría de García and Roberto Rafael Alegría Rodríguez, also residents of the Urbanización Bosques de Santa Ana. That amparo was dismissed by judgment No. 2009-003342 at twelve fourteen p.m. on February 27, 2009, under the following considerations:\n\n**\"…. V.-** Well, in the present case, it is discussed whether the omission of the respondent authorities (namely, the Directorate of Geology and Mines of the Ministry of Environment, Energy and Telecommunications, the Municipality of the Canton of Santa Ana, the Ministry of Health, and the Ministry of Environment and Energy) regarding the complaints filed about the alleged environmental contamination problems caused by the activity carried out by the company Constructora MECO, Sociedad Anónima, in a quarry adjacent to the Urbanización Bosques de Santa Ana, violates or not the right of the amparo petitioners to a healthy and ecologically balanced environment. On this matter, the authorities of the Ministry of Environment and Energy in their sworn report have indicated that the exploitation of the aforementioned quarry has the environmental viability and the corresponding permits, after having conducted the necessary environmental impact studies (EIA) (see folio 73), which is deduced from the contents of files N°198-94 and 058-97. But the Minister of Environment and Energy has also affirmed under oath that 'as of today it is up to date with its environmental commitments, such as the amount of the environmental guarantee which is current and in the presentation of regulatory reports (see report on folio 37), and that there is no communication from the National Environmental Technical Secretariat (SETENA) or from the Directorate of Geology and Mines indicating that said company must suspend its activities (see report on folio 37).\n\n**VI.-** On the other hand, the Minister of Health in her report indicated that on November 7, 2008, an inspection was carried out at the site indicated by the appellants, noting that the appellant company has the necessary permits to carry out its task, as well as adequate physical conditions, with no anomaly being found (see report on folio 43). Finally, the authorities of the Municipality of the Canton of Santa Ana in their response—which is given under the solemnity of an oath, with timely warning of the consequences, including criminal ones, provided for in Article 44 of the Law of Constitutional Jurisdiction—indicated that the permits enjoyed by the company Constructora MECO, Sociedad Anónima, predate the entry into force of the Regulatory Plan of the Canton of Santa Ana (see report on folio 46), with which the Chamber considers that determining whether such permits still remain in force despite the content of the local regulatory plan constitutes a matter of mere legality to be ventilated before the ordinary courts, through the exercise of the actions and procedures that the legal system establishes for that purpose.\n\n**VII.-** Thus, regarding the effective protection of the precautionary principle and the right protected in Article 50 of the Political Constitution, this Constitutional Court does not consider any current illegitimate situation that impairs the full enjoyment of these rights to be demonstrated, based on the evidentiary material that the plaintiffs have provided on this occasion. On the contrary, from the reports provided by the respondent authorities and the documentary evidence attached to the record, it is rather inferred that the activity carried out in the aforementioned quarry does not pose environmental contamination problems, regarding possible excess noise or dust. So that the conduct of the respondents, far from violating the fundamental rights of the promoters, conforms to the Law of the Constitution. By virtue of the foregoing, the appropriate course is to dismiss the amparo action, without prejudice (of course) to reaching a different conclusion on another occasion based on other evidence.\"\n\nThus, taking into account this recent precedent, it is considered that it is not meritorious to analyze again the permits granted to said company that have allowed it to work in the Quarry of interest, nor matters regarding the Regulatory Plan. Furthermore, it must be mentioned that this Court has indicated in previous cases that it is not the competence of an instance such as this one to verify whether an Environmental Impact Study, hydrological study, hydrogeological study, or any other of a technical nature was well prepared or not, given that it evidently requires the knowledge of specialists in those disciplines, which are not typical of the jurisdictional function of this Constitutional Court (see judgments No. 2004-009927 at eleven o'clock and one minute on September 3, 2004, and 2005-005790 at ten forty-one on May 13, 2005). In the case under study, the concessionaire company had to submit various technical studies to ensure that the project would not produce environmental damage. Precisely the entities—in particular SETENA—responsible for reviewing said studies, considered that they did comply with the necessary information to evaluate and predict the impact of the quarry's exploitation, and therefore it was approved, granting the Environmental Viability and the other permits cited above. In any case, if the promoters consider that the studies were not carried out adequately or believe that not all necessary legal aspects were contemplated—because they were conducted by private companies contracted by the concessionaire company—and that the Regulatory Plan for the area does not permit its operation, this constitutes a matter that must be resolved before the instances knowledgeable about the technical aspects in this area, and not before the constitutional jurisdiction, by virtue of it being an aspect that falls outside the sphere of its competence. What does fall within the competence of this Chamber is to determine whether, with the approval of this concession, serious and irreversible damage to the environment was produced or exists the possibility of it being produced, as contemplated by the Rio Convention. This is because it is unavoidable that every human activity on Earth implies an impact on the environment (or damage, as it alters it in one way or another); nevertheless, its relevance for study purposes is that this impact must be serious or irreparable, as stipulated by said Convention. Regarding this, it is noted that at the entrance to the Meco Quarry there is a parking area (prior to entry) for the dump trucks waiting to be loaded, which is located within the property of the MECO company, so the public road is never obstructed. Additionally, in the machinery transit zone, no oil stains were observed on the ground, which indicates it is in good condition. The sources of noise, smoke, dust, and gases are multiple in the area surrounding the MECO company, due to the large number of industries and other nearby productive activities and the high transit of vehicles and heavy machinery, coupled with the poor condition of the street separating the industrial zone from the neighboring residential areas; however, at the Meco Quarry, no evidence of dust contamination from its own activities was found, as they are geographically confined by considerable slopes. It was verified that there is constant vigilance to ensure transport trucks are covered with tarpaulins and that the transit areas of the quarry are frequently watered. It has been reported, under the gravity of oath, that the noise in the processing area is characteristic of this type of activity, where rocky material of a larger size is processed into a smaller one, but when moving away from the place, near the urban development zone, no noise is perceived. Under that context, it is considered that the amparo regarding this point is not admissible, since once again it has not been possible to corroborate any noise or environmental pollution produced by the activity carried out in the quarry of interest. Notwithstanding the foregoing and based on the precautionary principle, note should be taken of what was reported by the Vice Minister of Health that the Health Steering Area (Área Rectora de Salud) of Santa Ana issued sanitary order No. ARSSA-1583-09 so that the construction company conducts two perimeter immission studies, in the rainy season and dry season, with the objective of scientifically determining if the emissions generated by the company could affect the neighborhood (report on folios 406 to 410, document on folios 414 and 415). Furthermore, the Municipality of Santa Ana must do likewise regarding the cantonal public streets concerning vehicular traffic and their maintenance, since it is evident from what was reported that there is a certain problem due to the high transit of vehicles and heavy machinery, coupled with the poor condition of the street separating the industrial zone from the neighboring residential areas, which, regardless of who the producing actors are, the truth is that they are its responsibility.\n\n**VI.-** Regarding the alleged contamination of water resources, which is a new element, it is necessary to point out that the Chamber's jurisprudence is clear in recognizing the right to water as a fundamental right, such that along with the undertaking of serious efforts to provide it to the population, there is a duty of public institutions to make responsible and prudent use of available water resources, which implies the need to acquire certainty about the water susceptible to exploitation—availability—guaranteeing its present delivery and the future sustainability of the service, avoiding that with the current use of the resource, an environmental risk is produced that compromises the future existence and supply of the liquid.\n\nFurthermore, the Chamber has had the opportunity to rule forcefully and in detail on the protection that must be afforded to the national water resource, clarifying both the regulatory framework for protection and the institutions that make up the water sector, recognizing and specifying the scope of competencies of those bodies and the significance of their actions in the granting, use, and protection of water. Groundwater has become the primary means of public supply in the Central American region, since most surface sources have been contaminated by human action. In the specific case of Costa Rica, it is estimated that approximately seventy percent of the water consumed daily by the country's inhabitants comes from groundwater, a situation that highlights the importance of protecting this resource. It has also been pointed out that … “Unlike contamination of surface waters, which is usually obvious and visible, allowing environmental actions aimed at mitigating or eradicating it, contamination of groundwater, by its very nature, often goes unnoticed and becomes evident when it has reached large proportions. Aquifers, due to the slow circulation of waters, the absorption capacity of the terrain, and other factors, can take a long time to show contamination. Additionally, the large volume of water contained means that extensive contaminations take a prolonged period to manifest, or when dealing with localized contaminations, they are detected when they flow to some extraction point. Certainly, this type of water has a resistance to being contaminated; however, when this occurs, its regeneration can be extraordinarily slow and is sometimes irreversible due to the high cost of the means to do so. It has been demonstrated that attempts to repair the damage caused by contamination to an aquifer to once again achieve potable water levels have not been successful, cleaning technologies have contributed little to reducing the damage, and the methods are economically very expensive. To the above must be added the lack of organizational infrastructure, material, financial, and human resources—in this last case, duly trained to evaluate, measure, and, in general, monitor the quality of this water and the exact extent of its contamination. The degradation and contamination of aquifers imposes on the legislator and public administrations the urgent and unpostponable task of protecting them…” (judgment No. 2004-1923, of fourteen hours fifty-five minutes of February 25, 2004) (see also, among others, judgments No. 2008-012109 of fifteen hours and sixteen minutes of August 5, 2008, No. 2008-014092, of nine hours twenty-eight minutes of September 23, 2008, and No. 2008-015657 of eleven hours forty-five minutes of October 17, 2008). In this case, it has been possible to confirm, from all the reports provided by the respondent public authorities, that Tajo Meco is not within the Puente Mulas Aquifer Reserve Area demarcated by the AyA. That although its activity is located on the left bank of the Virilla River, it does not affect uses for public supply and the Aquifer Reserve Zone of the Instituto Costarricense de Acueductos y Alcantarillados. Furthermore, the Virilla River canyon acts as a negative barrier to the activities generated on the left bank of said river. It has also been fully demonstrated that the most important aquifers of the Central Valley are located on the right bank of the Virilla River, and those located on the left bank are not aquifer zones of such relevance. Thus, although the volcanic materials that appear on the left bank (quarry under study) are the same as those on the right bank where very important aquifers develop (Puente de Mulas), the aquifers are not the same; while those on the right bank are very productive, on the left bank, due to their small recharge areas, they are not saturated and only generate small aquifers of low potential. It is clarified that on the right bank of the Virilla River, a large number of springs (manantiales) outcrop that have been generated in fractured lava rocks belonging to the Puente de Mulas aquifer and which, together with water wells, are captured by the AyA. Within this context, it is not possible, as the petitioners allege, to presuppose in any way that the aquifers of the zone run any risk of suffering contamination from the work carried out by Constructora MECO in the area. The foregoing does not imply, of course, that the respondent public authorities consider their work finished, since they must continue coordinating and verifying the conditions under which the concession was granted, and the compliance with the Environmental Impact Assessment (Estudio de Impacto Ambiental), and must also take precautions should the case so warrant. Note that the General Manager of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA) (folios 430 to 433), recommends that, for the purposes of evaluating the current situation, more hydraulic conductivity tests should be carried out and the transit times and intrinsic vulnerability of the aquifer recalculated. Additionally, an inventory of possible contamination sources in the quarry extraction development should be performed and measures taken to prevent the infiltration of contaminating substances into the aquifer. Also, the installation of piezometers in the quarry, with the objective of verifying the groundwater level and its relationship with the rock exploitation levels or elevations.\n\n**VII.- Concerning the Corporación de Supermercados Unidos.**\nThe petitioners argue that for several years, Corporación de Supermercados Unidos installed a commercial premises with warehouses in the area, even though the area is residential, and therefore, industry or commerce cannot be located in that place. They assert that the Instituto Nacional de Vivienda y Urbanismo granted permits to the aforementioned corporation, contrary to what is prescribed in the regulatory plan. Said company has not confined the nuisances produced by its commercial activities, a situation that is aggravated by the inertia of the respondents, who have not provided an effective solution to the contamination problem they allege. In this regard, this Court has repeatedly indicated that, in accordance with the provisions of Articles 169 and 170 of the Political Constitution, the Urban Planning Law No. 4240 of November 15, 1968, establishes that primary authority in urban planning matters corresponds to the municipalities, which has been embodied in Articles 15 and 19 of said law. These entities are responsible for assuming local urban planning through the promulgation of the respective regulatory plans, implementing the regulations issued for that purpose by the Instituto Nacional de Vivienda y Urbanismo, as the institution responsible for urban planning at the national level. This latter point with the clarification that the Dirección de Urbanismo functions as an advisory body to the municipalities for the purposes of preparing, applying, and modifying the municipal or local Regulatory Plan and its Regulations before their final adoption; however, the Chamber has said that the foregoing must be understood as the formal limit of the broad guidelines, technical standards, or general directives according to which local governments must prepare their respective regulatory plans and corresponding urban development regulations, since it is not possible to claim that the National Urban Development Plan is prepared and implemented entirely by the Central Government, without the direct intervention of the municipalities in this matter. The Chamber has considered that such a situation violates not only the most elementary principles of logic and convenience, given that the particular interests of each canton of the Republic are at stake, but also the constitutional principles of the municipal regime, established by our Magna Carta in Articles 168 to 175. In this context, urban planning, meaning the preparation and implementation of regulatory plans, is a function inherent to the municipalities to the exclusion of any other public entity, except for what has been said regarding the general directive powers attributed to the Ministry of Planning and the Dirección de Urbanismo. Regarding the legal nature of regulatory plans, the criterion sustained by this Chamber is that, by reason of their content and their general efficacy or binding nature, they must be considered true legal norms or laws in the material sense, given that they recognize rights and establish obligations for the owners and possessors of properties located in the territorial circumscription of the respective canton. Likewise, attending to the procedure for forming these regulations, it has been considered that they constitute a manifestation of direct democracy, because they are prepared and approved by the respective municipalities, which find their reason for being precisely in their composition, that is, by the citizens or neighbors, in a specific territorial circumscription –canton–, for the \"administration of local interests and services\" (Articles 169 of the Political Constitution and 1° of the Municipal Code) (see judgment No. 2009-012515 of eighteen hours and three minutes of August 11, 2009). Furthermore, urban planning is one of the most important and transcendental tools for the satisfaction of local interests. It is the normative expression of the will and of the planning and design of collective and individual development, without detaching itself from the national contour and the territorial and environmental unity to which they belong. The way of planning the development of human activities has a significant impact on the environment, which may be negative or positive depending on the uses and activities authorized. Now, in the present case and specifically in light of the actions or omissions carried out by the respondent authorities, it is found that the Dirección de Urbanismo of the Instituto Nacional de Vivienda y Urbanismo, through note No. UR-326 of April 2, 1993, granted the land use (uso de suelo) in favor of Inmobiliaria Mas X Menos S.A., for the installation of a collection center for non-perishable grains and groceries. The land use was granted considering that it was located in an urban growth zone according to the Santa Ana Regulatory Plan, and that property No. SJ 17213-91, had special characteristics such as its size (5 Ha. 94.92 M2) and for which minimum setbacks had to be 15 meters from the boundaries, a 52-meter front setback on the main road, and a 35-meter rear setback, which allows and guarantees a confinement of nuisances. As reported, the warehouse activity of Más x Menos was authorized prior to the publication of the zoning maps of the Santa Ana Regulatory Plan, which was done according to La Gaceta No. 137 of July 1, 2001, even though the cited Plan was published in La Gaceta No. 74 of April 19, 1991. However, as they are existing uses not conforming to the High Density Residential Zone, the Municipality of Santa Ana has not authorized the growth or expansion of the activities of the Más x Menos warehouses. On these points, in accordance with what was indicated above, it is worth noting that determining whether the permits allowing the operation of the cited warehouses were granted in accordance with the law, as well as the prescription or not of a potential challenge to them, constitutes a matter of mere legality. This must be aired before the ordinary courts, through the exercise of the actions and procedures that the legal system establishes for that purpose.\n\n**VIII.-** Now, regarding the alleged sonic contamination, it is found that it is a commercial premises with a passive warehouse where merchandise is received and distributed without any type of industrial processing, without machines or equipment. That in a visit conducted by the Environmental Protection Office of the Ministry of Health on February 19, 2008, no problems were detected from a sanitary point of view at the Max por Menos Warehouses. Furthermore, the sonic measurement scheduled for September 25, 2009, was not carried out because Mrs. Ruth Mahecha Martínez, owner of the home, stated that it was not necessary since no noise was being generated at that moment, as it is intermittent, since the vehicles (vans and heavy traffic vehicles) transit with different time intervals. As well as in another visit conducted by the Regional Directorate of the Rectoría de la Salud Región Central Sur of the Ministry of Health on September 25, 2009, no noise was being generated. From this, it can be deduced that it has not been possible to determine that the cited warehouses are generators of sonic contamination as argued, so it is not possible to attribute any responsibility to the respondent private-law company. The foregoing does not negate the responsibility of the health authorities to monitor that the petitioners are not affected by possible contamination of this type, since it cannot be lost sight of that it is the State's obligation that, faced with events such as those indicated herein, the necessary mechanisms are activated to, eventually, proactively shelter the right to enjoy a healthy and ecologically balanced environment as well as the right to health, from possible dangers, with the aim of, as has been indicated, making them endure for future generations.\n\n**IX.- Regarding the rights of petition and administrative justice.** Concerning these, the petitioners allege in the brief filing the appeal, the following: “(…) Even if they present this documentation, this filed amparo appeal could not be obviated, nor the multiple letters sent to the Municipal Council signed by many of the neighbors of Bosques de Santa Ana, about the multiple nuisances that your company has caused us for years, without the authorities definitively accepting our claim. (…) The facts set forth above are known to the Ministry of Environment and Energy, the Municipality of Santa Ana, the Instituto Nacional de Vivienda y Urbanismo, and the Ministry of Health, institutions before which the corresponding administrative procedures were carried out and some before which the nuisances have been expressed. In order to end the contamination that we suffer. These entities have not resolved the exposed problems and have accepted the temporary solutions that Constructora Meco and Wal Mart have offered, they have archived the nuisances as if the solutions were definitive, without following up on the actions and without demanding definitive solutions, such as eliminating the sources of the problem. We come before this Honorable Chamber because we consider that the respondent institutions violate our constitutional right to health, and the right to obtain a definitive response, not temporary solutions, from the state institutions. We consider that the administrative inactivity contravenes the provisions of Article 27 of the Political Constitution, which regulates the right of petition and prompt response. Likewise, Article 41 of the Constitution regulates that we must all find redress by resorting to the laws, in a prompt, complete manner, without denial and in strict accordance with the laws”. On the point of the right of petition and prompt resolution, as well as the right to prompt and complete access to justice, the jurisprudence of this Chamber is copious, according to which it has been determined that Article 27 of the Political Constitution enshrines the right of petition and prompt resolution, which consists of a faculty that the administered have to make petitions before public authorities. Such petitions before the Administration can be divided into simple petitions and those that tend to have something recognized or granted: the former can be protected as a direct violation of Articles 27 or 30 of the Constitution, by the simple expiration of the legal deadline to resolve, as stipulated in Article 32 of the Law of Constitutional Jurisdiction; the latter, when not resolved within the legal deadline, constitute administrative delay and delay of justice, hence they are amenable to amparo protection for violation of Articles 27 and 41 of the Magna Carta. However, from the documentation provided by the petitioners (folios 23, 49 to 54, 62 to 72), it is not possible to determine a violation of the rights protected in the aforementioned regulations. Note that those procedures, directed to the Municipality of Santa Ana, refer to the opposition by several neighbors to a possible modification of the regulatory plan that would allow converting the lands where the respondent companies are located into an industrial zone. As well as the opposition to the Corporación de Supermercados Unidos expanding the warehouses it already has in the place. Regarding the first point, the Mayor of Santa Ana reported that the Municipality is working on a comprehensive reform of the Regulatory Plan (folio 258). From this, it can be deduced that the administrative procedure itself has not concluded, and for its definitive resolution, it is necessary to take into account all the procedures, evidently including those referred to above, so it is not possible to argue a lack of response. While regarding the other point, the procedure for which was presented on August 27, 2004 (folio 49), the General Secretary of SETENA reported that there is a file, 732-2004-SETENA, called Centro de Distribución de C.S.U., in which the expansion of the warehouses was sought, but a withdrawal of action occurred, wherefore the file was archived by resolution No. 2299-2005-SETENA of September 6, 2005 (folio 173). The foregoing means that this opposition lacks current interest because the process they objected to was dismissed many years before this amparo was filed. Under this context, it is considered that the noted constitutional violation, regarding the documented procedures, has not occurred.\n\n**X.- Conclusion.** As no injury to the fundamental rights alleged by the petitioners, attributable to the respondents, is verified, this appeal is declared without merit, but not without first making three formal notices: first, to the Minister of Health so that she verifies compliance with the sanitary order No. ARSSA-1583-09 issued against Constructora MECO S.A. The second formal notice is to the General Secretary of the Secretaría Técnica Nacional Ambiental, the Director of Geologías y Minas, and the Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, so that they take note of the recommendation made by the General Manager of the Servicio Nacional de Aguas Subterráneas, Riego y Avenamiento (SENARA), in protection of the water resource of the zone. Third: In relation to vehicular traffic and the maintenance of local public roads, the Municipality of Santa Ana must adopt the necessary measures to avoid nuisances to the neighbors.\n\n**Por tanto:**\n\nThe appeal is declared without merit. Let the Minister of Health, the General Secretary of the Secretaría Técnica Nacional Ambiental, the Director of Geologías y Minas and the Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, and the Municipality of Santa Ana take note of what is indicated in the last considering clause.\n\nAna Virginia Calzada M.\nPresidenta\n\nGilbert Armijo S.\n Ernesto Jinesta L.\n\nFernando Cruz C.\n Rodolfo E. Piza R.\n\nRicardo Guerrero P.\n Enrique Ulate C."
}