Uncertainty with respect to the duty to process discharge permits

After almost 9 years of having been sued the first paragraph of Article 41 of Decree 3930 of 2010, which partially regulated Law 9 of 1979, "whereby sanitary measures are issued", the First Section of the Council of State, in a ruling of July 28, 2019, declared its nullity.

It should be recalled that Article 41 of the Decree in question established that any natural or legal person "whose activity or service generates discharges to surface or marine waters, or to the soil, must request and process before the competent environmental authority, the respective discharge permit". According to the first paragraph (declared null and void), those connected to a public sewage system were exempted from this obligation.

In this regard, the Council of State argued, among other things, that the exception contained in said paragraph violated the provisions of Article 11 of Law 9 of 1979, which provided that: "Before installing any industrial establishment, the interested party must request and obtain from the Ministry of Health or the entity delegated by it, authorization to discharge liquid waste" (Emphasis added).

In this context, the Council of State indicated that: "the intention of the legislator was always to require a discharge permit for industrial establishments" and, therefore, the aforementioned paragraph, by providing for a general exception that also excludes industrial establishments, transgressed the limits of a regulatory rule. Notwithstanding the declaration of nullity of the entire content of the first paragraph, this High Court indicated that users connected to the sewage system, who are not industrial establishments, are not required to have the aforementioned permit.

In this regard, it is worth noting that this declaration of nullity has generated a conflict of interpretation, since the provisions of Article 11 of Law 9 of 1979, enters into confrontation with the provisions of Article 13 of Law 1955 of 2019, National Development Plan 2018-2022, which states that: "Only the discharge of wastewater to surface waters, marine waters or soil requires a discharge permit".

From the aforementioned provision, it can be inferred that, as provided in the first paragraph of Article 41 of Decree 3930 of 2010, if discharges are made to a sewage system, they would not require, in principle, a discharge permit.

Therefore, today there are two ordinary laws that could be understood as conflicting. On the one hand, article 11 of Law 9 of 1979 orders that all industrial establishments must apply for a discharge permit, without exception, that is, regardless of whether or not they discharge into sewage systems; and, on the other hand, article 13 of the National Development Plan indicates that only those who discharge into surface or marine aquifers and/or into the ground will be required to apply for and obtain such authorization, so it could be interpreted that if an industrial establishment is connected to a sewage system, according to the Plan, it would not require such a permit.

Given this normative contradiction, the rules of interpretation established in Laws 57 and 153 of 1887 could be resorted to in order to establish which is the rule that currently governs the matter. Even with the foregoing, it is not possible to issue a statement that determines, in light of the laws ibidem, the applicable provision, since: (i) both Law 9 of 1979 and Law 1955 of 2019, hold the same normative hierarchy, therefore, it is not feasible to apply the hierarchical criterion, according to which the superior norm must prevail over an inferior one (lex superior derogat inferiori); ii) although it is true that the chronological criterion determines that, in the event of an incompatibility between two rules of equal hierarchy issued at different times, the later rule must prevail over the earlier one (lex posterior derogat priori), and the provisions of Law 1955 of 2019 must be applied in principle to the specific case, This would be in confrontation with the criterion of specialty, which mentions that the special rule prevails over the general one (lex specialis derogat generali), since Law 9 of 1979 specifically regulates the subject of sanitary measures and, therefore, it can be covered by such character.

Based on the above, the current situation creates legal uncertainty since those industrial establishments that discharge into a sewage system do not have clarity as to whether or not they have the duty to process the corresponding discharge permit. The consequence of such uncertainty is that the last word, or who in the end feels this interpretation, is each environmental authority, regional or municipal, competent in its area.