This work is the result of an investigation carried out in Las Tunas province, Cuba, on environmental problems that damage the territory's ecosystem and the application of environmental administrative responsibility, which is determined through the current norm, Decree Law 200 of 1999. The issue is addressed starting from the constitutional precepts that include the protection of the environment and the functions of CITMA, Ministry of Science, Technology and Environment, organ of the Central Administration of the State that constitutes the rector of environmental policy, particularizing itself in the forms of responsibility recognized by the Cuban State as a support to evaluate the behavior of the application of Decree Law 200 of 1999 in the province of Las Tunas, after an analysis of the fundamental difficulties that characterize the territory, the measures taken to those responsible, as well as their effectiveness. Arriving at conclusions that evaluate in their application,the current environmental sanctioning administrative regime and the need to improve the management instruments to achieve sustainable development.
Introduction
The right to an adequate environment, unlike other rights, such as education, for example, in which the intervention of the Public Powers is a requirement for their own existence, does not require of them a proactive activity, since it has been Nature who has provided the parameters of the biosphere. The activity of the State is limited in our case to the protection of the pre-existing. A similar situation occurs with the right to life that the State does not provide and only protects. According to these last arguments, then, the right to an adequate environment in relation to the activity of the State has great analogies with civil and political rights, first generation rights, since the State must recognize them and simply protect that they are not violated, without that their positive performance is essential.
However, the increasingly visible collective action for environmental protection, which is implemented through Public Administrations, should not lead us to frequent confusion in doctrine. The right to an adequate environment is not exercised against the State. The right to the protection of the adequate environment is exercised against the State. They are two rights of a different nature, which, at least at the level of legal theory, should be duly differentiated. Of the activities that the State must develop with the environment, prevent its deterioration, protect it and restore it, if it has deteriorated, the least important from a legal perspective is restoration, although it may be the most important, perhaps, from a political perspective.
It is not about pursuing a perfect biosphere, as is done with social rights, seeking an equality that never existed through compensatory instruments. The State simply has to protect the biosphere that existed and exists and that is not the result of the solidarity effort of our species, such as Social Rights and those of the third generation.
It corresponds to the Cuban State, the exercise of sovereign rights over the environment and natural resources of the country. Based on this state function and through the governing bodies, the State projects environmental policy and management. The Ministry of Science, Technology and the Environment (CITMA), in its capacity as the Central State Administration Agency governing environmental policy, is in charge of developing the strategy and coordinating the actions aimed at maintaining the environmental achievements achieved by our revolutionary process and contribute to overcoming existing shortcomings, while ensuring that the environmental dimension is taken into account in development policies, programs and plans at all levels.
The powers and functions of CITMA are exercised in coordination and without prejudice to those attributed to other organs and agencies. The organizations that develop actions of a global nature must accompany the environmental authorities in the design of global measures within their competence for the environment and the protection of natural resources. Similarly, those agencies that are in charge of managing certain components of the environment, have the obligation to carry out an adequate policy of protection and sustainable use of these. Said actions include the conservation and proper management of natural resources, the systematic fight against the causes and conditions that originate pollution, damage or harm to them, the application of preventive measures and the rehabilitation of the affected resources,when appropriate, the application of Cleaner Production strategies, effective treatment and reuse of the waste generated, and adequate environmental sanitation.
These obligations are not exclusive to the aforementioned bodies, but rather, to a greater or lesser degree, are valid for all Central State Administration Bodies (OACEs), their companies and other business entities, national or foreign. At the same time, the environmental institutionality must continue in a process of continuous improvement, according to which all the structures and institutions that have responsibility for the definition of policies and control of the rational use of natural resources are integrated in the most harmonious way. temporal and spatial planning of that use.
As the territories constitute the main scenario where environmental policy and management are materialized, corresponds to the Governing Bodies of the People's Power, provincial and municipal, in close coordination with the environmental authorities at the local level and the corresponding representations of the different OACEs and entities in the territory, as well as, with a strong interrelation with the communities under their care, guarantee the application of national environmental management and establish the adjustments and priorities corresponding to the characteristics and main needs of each territory.
The objective of this work is therefore to reflect on Administrative Responsibility and the application of its sanctioning regime, determining the essential improvement of the application of environmental management instruments for the achievement of a healthy environment and sustainable development.
Development
1.1 The requirement of environmental administrative responsibility
Law No. 81, on the Environment of July 11, 1997 establishes in its articles 67 to 69 the general aspects related to the System of Administrative Sanctions, instrumented by Decree-Law No. 200 “On Contraventions in the Matter of Environment ”, of December 22, 1999.
For the implementation of its precepts, Resolution No. 19 of February 7, 2000 of the Ministry of Science, Technology and Environment was issued, which regulates, among other aspects, the functions and powers of the competent authorities to know and impose the measures applicable under the Decree-Law. In 2002, this Ministry presented structural changes, which led to the emergence of the Office of Environmental Regulation and Nuclear Safety, to which the centers in charge of regulatory activity in environmental matters are subordinated, which until then instantly carried out their work independently, so that the authorities empowered to impose contraventional measures,the procedure for its imposition and the presentation of appeals before these authorities has varied.
Resolution 185 of 2006 is then promulgated, amending Resolution No. 19, which, among other aspects, refers to the designation of the authorities that, in accordance with Article 16.1 of Decree-Law No. 200 "Of Contraventions in Matter of the Environment ”, of December 22, 1999, are empowered to impose the contraventional measures provided for in the aforementioned Decree-Law:
1. The Director General of the Office of Environmental Regulation and Nuclear Safety; who exercises the powers corresponding to the Head of State Environmental Inspection.
2.The Territorial Delegates; who exercise those corresponding to the Provincial Heads of Environmental Inspection.
3. The inspectors belonging to the Office of Environmental Regulation and Nuclear Safety, of the Territorial Delegations and the inspectors of the state inspection systems of the Central State Administration bodies and other state bodies outside the system of this Ministry; who exercise the powers corresponding to the State Environmental Inspectors.
(The Chief of Environmental Inspection, the Provincial Heads of Inspection, the state environmental inspectors of the Ministry System, the state inspectors of the State Inspection Systems of the Central State Administration Bodies, whose activity affects the protection of the environment, the inspectors of the Ranger Corps, the Civil Defense inspectors, the inspectors of the General Customs of the Republic.)
Said authorities are empowered, within the spheres of competence of their respective agencies, to impose a fine, reprimand, confiscation or reassignment of the means used to commit the contravention and of the products obtained from it, and the Obligation to do whatever prevents continuity of the offending conduct. When, due to the circumstances or significance of the offense, the application of some of the measures over which the acting inspector has no power is deemed necessary, it will be immediately transferred to the authorized authorities of the Ministry to proceed accordingly.
When demanding responsibility, it is important to know the procedure that the legislation establishes to impose the measures. For them, it is important to know that the behaviors that constitute violations are known through the state inspection or through the complaint to the authorized authority.
When the empowered authority receives a complaint and in those provided for in article 16.3, it will carry out the appropriate verification and may order the provisional retention of the means used to commit the contravention and of the products thereof. Upon detecting conduct that constitutes a violation, it will be notified immediately in writing to the representative of the offending entity or to the natural person as appropriate. Considering the nature of the infraction, the authorized authority has a maximum period of up to 10 days to apply the corresponding measure. The reassignment of the means used to commit the contravention and of the products obtained from it, will be executed by the entity decided by the corresponding Provincial Administration Council,Except in the case of live animals extracted from their natural environment that can be released immediately, in which case the inspector is empowered to execute the measure.
If the fine is not paid or the payment agreement is not established after the expiration of the thirty calendar days following the date of imposition of the measure, the means of enforcement will be processed for its collection. In cases where an obligation to do so has been imposed on the offender, taking into account the complexity of the measure, the authorized authority will grant him a period for its fulfillment. If the offender does not comply with the obligation to do so within said period, the competent authority will manage that the obligation is fulfilled through an entity duly authorized to do so, at the expense of the offender. Against the measures imposed by the authorized authorities, an appeal may be established before the immediate superior head of the authority that imposed the measure.The appeal will be filed within a term of three business days following notification of the measure and will be resolved within a term of fifteen business days following the date of filing. Against what was resolved, there is no recourse in administrative proceedings. It is important to know that the filing of the appeal does not have suspensive effect, except when the authority before whom it was filed provides otherwise.
Even after the result of the appeal has not been favorable to the offender, he has the possibility of initiating an extraordinary review process before the holder against the firm measures as a consequence of the commission of a contravention. Said process will be requested from the Minister of the Ministry of Science, Technology and Environment, within a period of 180 days after the measure is final; Once the request is admitted, the process will be resolved within 45 days.
Despite the existence of these contraventional provisions and a large number of complementary provisions, illegal acts continue to be committed and the environmental situation is still not favorable for the achievement of sustainable development and a healthy environment, a brief overview of the situation of our province and of the actors responsible for the infractions leads us not only to the dilemma of the effectiveness and efficiency of the application of environmental management instruments and their control by the Public Administration but also to the causes and conditions that generate these violations with their consequent damages and the administrative responsibility generated by them.
1.2 Fundamental problems of the Tunero environment. Liability Regime
Las Tunas, located in the eastern territory of Cuba, limited to the north by the Atlantic Ocean, to the south by the Granma province and the Gulf of Guacanayabo, to the east by the province of Holguín, and to the west by Camaguey. It has an area of six thousand five hundred and eighty seven square kilometers (6,587 km2). The territory has 338 km of coasts of which 265 correspond to the north and 73 to the south coast. On the north coast the existence of 4 bays stands out. Also of great value are the 34 existing beaches on the north coast to which are added Rabihorcado in the south, with considerable potential for national and international tourism.
Around the bays on the north coast and along the entire south coast there are mangrove forests, quite extensive and well preserved in some areas. In the marine platform there are coral reefs, populations of cobos, and other mollusks, crustaceans and commercial species of fish with sighted signs of decrease in catches in some areas due to impacts such as pollution and overexploitation, among others. The fluvial network is underdeveloped, formed by rivers with little flow and shallow channels that overflow in the rainy season. There are groundwater basins evaluated at 159 million m3 of water per year.
The forests occupy 13.72% of the surface of the territory and are located mainly towards the coastal areas. The economy of the province is based mainly on sugar production and its derivatives, for which there are 5 sugar mills, almost all large factories, the iron and steel industry and agricultural activity.
In the province, the following are identified as the Main Environmental Problems:
- DROUGHT
• Lack of drinking water
- DESERTIFICATION PROCESS
• Soil degradation.
• Deterioration and insufficient forest cover.
- ENVIRONMENTAL POLLUTION
• Liquid residuals.
• Solid residuals.
• Atmospheric pollution.
• Hazardous waste.
- DETERIORATION OF HABITATS AND ECOSYSTEMS
Principles on which the management and environmental policy of Tunisia are based
1. Contribute to economic and social development on a sustainable basis.
2. Recognition of the citizen's right to a healthy environment.
3. Verification of the social duty to protect the environment.
4. Concentration of efforts on the main environmental problems of the province.
5. Coordination of actions around the CITMA Delegation, in its capacity as rector of provincial environmental policy.
6. Active participation of all social actors, at different levels, on the basis of coordinated action, based on cooperation and joint responsibility.
7. Projection of science and technology in Las Tunas in order to contribute to the solution of the main environmental problems.
8. Development of technological innovation based on an environmentally safe management that contributes to the competitiveness of our products on the basis of a favorable relationship with the environment.
9. The integral application of the concept of Cleaner Productions, to minimize the generation of waste and emissions, the management of waste, including its economic use and adequate environmental sanitation.
10. Deepening of environmental awareness, with emphasis on education, dissemination and environmental information actions.
11. Real, effective and systematic compliance with environmental legislation.
12. Comply with the current instruments of environmental management and contribute to the development of the new instruments that are required.
13. Sustaining environmental work on the basis of consultation, cooperation and coordination between environmental authorities and the different organizations and companies in the territory.
14. Application, as a key element of environmental management in Tunisia, the principles of integrated coastal zone management, with an ecosystem approach to solve environmental problems.
15. Application of other key concepts, such as the Precautionary Principle and the Prevention Principle.
We refer by way of example to environmental pollution as it is, in our opinion, among the most notable problems.
Environmental pollution
It is the presence and action of organic and inorganic waste in such quantities that the environment is altered in its physical, chemical or biological characteristics. Pollution can be caused by non-degradable waste or by biodegradable waste. Pollution causes loss of natural resources, costs for its suppression and control, and it can also harm human health.
* On Contamination by liquid waste
In the territory there are specific pollutant sources inventoried and with a planned action plan for each one of them.
Below is an example of the situation of those sectors with the greatest impact on this problem:
MINAZ:
Colombia Sugar Company, Amancio Rodríguez Distillery, Amancio Rodríguez Honey Company, Antonio Guiteras Sugar Company, Antonio Guiteras Distillery and Torula Factory.
MINAGRIC:
Centro Integral Porcino I Chaparra, Centro Integral Porcino II Chaparra.
MINSAP:
Some health institutions have difficulties with the treatment of residuals.
MINED:
• There are educational centers with defective treatment systems in terms of their operation.
These are the main cause of pollution of terrestrial and marine ecosystems, which have caused negative impacts with the consequent loss of environmental quality and the deterioration of biological diversity.
Despite the progress that has been made in reducing pollution, it constitutes one of the main environmental problems to be resolved by our territory.
Urban environmental management and human settlements in rural areas, due to its comprehensive and multidisciplinary nature, brings together various environmental problems that negatively affect the quality of life of the population and include:
- Poor reception, conduction and treatment of wastewater.
- Deterioration of existing Waste Treatment Systems.
- Lack and poor state of sewerage networks.
- Lack of Waste Treatment Systems.
- Low level of maintenance and control of waste treatment systems as well as effluents.
- Low level of use of residuals.
- Technological indiscipline in the management of waste treatment systems.
- Breach of the technical standards for the discharge of wastewater.
- There is no adequate monitoring system on the quality of marine waters and marine ecosystems.
* Contamination by solid waste
Solid Waste (RS) are those by-products originated in activities carried out in the home, office, commerce and industry (what is commonly known as garbage) and are composed of organic waste, such as food scraps, leaves and garden waste, paper, cardboard, wood and, in general, biodegradable materials; and inorganic, namely glass, plastic, metals, rubber objects, inert material and others.
The waste generated is divided into two groups:
• Solid waste management
An adequate integral management of urban solid waste is not conceived without the conscious cooperation of all the citizens and institutions involved, so that each of the stages that make up the process can be fulfilled with a high degree of effectiveness. This process is made up of several stages (generation, separation and temporary deposit), these are the responsibility of the generator of the waste and the rest are the responsibility of the entity in charge of providing the service.
Application of Decree Law 200/99. Experiences of your results.
During 2007:
Regarding the application of Decree Law 200/99 of violations in the stage being evaluated, 14 entities and 7 were notified to natural persons, violations were applied to 100% of the violations detected, 23 in total, of which 7 fines, for a total of $ 11,000.00, 10 Obligations to Do, 4 prohibitions to carry out certain activities and 2 closures, the reasons for the sanctions were also the execution of works without an Environmental License and the Breach of the State Inspection Measure in this period.
As a summary, it is necessary to point out that the entities belonging to MINAZ, MINAL and MINSAP are the ones that commit the most infractions, being the obligation to carry out and the fines the sanctions imposed, the latter in its majority of small amounts, although between 2007 and September 2008, 25 contraventions were applied to state entities, there are still facts whose solution is not in the imposition of a fine and in which the obligation to do depends on material or monetary resources and the lack of foresight regarding the possible environmental damages that cause the construction works, the absence of budget destined to create the conditions required to protect the ecosystem,as adequate treatment of residuals and waste and insufficient environmental education in the legal entities of the province are some of the causes of infractions and affects the awareness that there is on the subject, to this is added that in the application of the sanctions regime the agencies, groups or companies to which the offenders are administratively subordinate frequently do not apply measures due to their share of responsibility, also the fines imposed are sometimes small, which do not affect finances entities and are seen insignificantly, on the other hand,When the collection and fines office is constituted the one in charge of demanding payment, sometimes there is no adequate follow-up to know if the offender finally fulfilled his obligation because the information procedure between the Collections and Fines Office and the Inspection Group is insufficient. Despite the fact that actions are already being taken to improve this mechanism.
It is necessary to point out that the most important thing is not to repair the damage or impose the fine, but to prevent that damage or impact on the environment does not occur or if it occurs is the least possible and that there is not only the state and political will of the Bodies local authorities, environmental authorities and entities, but also that citizen participation is a fundamental link that contributes to the strengthening and application of the Environmental Management Instruments, making citizens a leading role in their right to enjoy a healthy environment. the duty to contribute to their protection.Our state makes great efforts to overcome the difficulties raised and has for this not only the legislation that protects it but also specialized institutions in environmental matters for each province and every year analyzes and evaluates the objective and subjective problems that adversely affect the environment and draws up its own strategies taking into account the characteristics of each territory, our Province is an example of constant activity and occupation in this matter through the territorial delegation of CITMA, Group of Inspectors and Auditors, and not only has determined its actions but also that gradually an improvement in the environmental conditions of the territory is reflected as a tangible example of their work.
Conclusions
First: There is extensive legal regulation that provides for the protection of the environment and the main problems of the Las Tunas territory and the strategies to be followed to reduce environmental damage are determined, however the application of the contraventional regime has not been sufficient in the eradication of the causes and conditions that promote violations of the environment, directly attacking the illegal act, not being effective by the Public Administration the preventive measures applied to prevent these events from occurring.
Second: In the province of Tunera, works or investments are undertaken by legal entities without having planned or foreseen budgets and monetary resources of environmental economic regulation that guarantee the environmental license and the evaluation of their environmental impact, which generates the non-observance of regulations environmental when executed.
Third: It is necessary to improve the application of environmental management instruments by the bodies and agencies responsible for their execution and control in order to improve environmental information and education.
Bibliography
Legislation:
Constitution of the Republic
Law 81 of 1997 of 1997 of the Environment.
Decree Law 200 of 1999 Contravention Regime.
Resolution 185 of 2006 on administrative sanctions.
Websites: Website of the Environmental Inspection and Control Center.
Reports consulted:
- National environmental strategy
- Territorio Las Tunas environmental strategy.
- CITMA reports on measures applied to legal persons.
