[1] The method by which an administrative agency determines the suitability of the waste disposal business plan and whether the administrative agency has broad discretion to determine the suitability of the waste disposal business plan (affirmative)

[2] In a case where an administrative agency notified a waste treatment business plan inappropriate with a brief statement stating that the administrative agency failed to meet the statutory permission criteria stipulated as an indefinite concept, the administrative agency should clarify the grounds for non-permission in the litigation procedure for revocation of the inappropriate notification. Whether the administrative agency needs to submit additional arguments and materials in order to clarify the judgment on the specific grounds for non-permission presented by the administrative agency and the grounds for non-permission and to clarify the illegality of deviation or abuse of discretionary power

[1] In light of the contents, structure, and legislative intent of Article 1, Article 25(1), Article 25(2)4 of the Wastes Control Act, Article 12(1), Article 13, and Article 3 subparag. 1 of the Framework Act on Environmental Policy, administrative agencies may determine the suitability of waste disposal business plans by comprehensively examining the impact on the living environment and the natural environment, such as whether the impact on human health or the surrounding environment has on human health and the surrounding environment, and the administrative agencies have broad discretion.

Therefore, when a court examines the deviation and abuse of the discretion of an administrative agency related to the determination of appropriateness, it shall be carefully determined by comprehensively taking account of the natural environment of the relevant region and the living environment of residents, the balance of rights and interests among interested parties having conflicting interests, and the legislative purport of various regulations on the protection of environmental rights. Determination of discretion by an administrative agency on the requirements that need to be predicted about the uncertainty and ripple effect that may arise in the future, such as “the impact on the natural environment and living environment,” such as “the impact on the natural environment and living environment,” needs to be widely respected unless there are circumstances such as where the content is considerably unreasonable or where there

[2] In a case where an administrative agency simply briefly stated the purport that a waste disposal business plan was not satisfied with the statutory requirements stipulated as an indefinite concept when it notifies the administrative agency of the non-conformity, the administrative agency in the litigation procedure for revocation of the non-conformity notification must clarify the specific grounds for non-permission by presenting the basis or data for the determination and disposition. In such a case, the plaintiff who disputes the validity of the notification of non-conformity with the waste disposal business plan, which is a discretionary action, needs to make an additional assertion and submit data in the litigation procedure in order to clarify that there was an error of deviation or abuse of discretionary power in the determination

[1] Article 1, Article 25(1) and (2)4 of the Wastes Control Act, Article 3 subparag. 1, Article 12(1), and Article 13 of the Framework Act on Environmental Policy / [2] Article 25(1) of the Wastes Control Act, Article 26 of the Administrative Litigation Act / [Liability for Certification]

[1] Supreme Court Decision 2016Du55490 Decided March 15, 2017 (Gong2017Sang, 778), Supreme Court Decision 2017Du46783 Decided October 31, 2017 (Gong2017Ha, 2206) / [2] Supreme Court Decision 2018Du49796 Decided December 27, 2018

Sung National Environment Co., Ltd. (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Seocheon-gun (Law Firm Ook, Attorneys Choi Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision (Chuncheon) 2018Nu1461 decided June 19, 2019

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The purpose of the Wastes Control Act is to contribute to the improvement of environment and the quality of people’s lives by preventing the generation of wastes to the maximum extent possible and eco-friendly treatment of generated wastes (Article 1). This also requires that the former Wastes Control Act, prior to the amendment by Act No. 10389, Jul. 23, 2010, “to properly dispose of wastes” should be added to “to eco-friendly treatment of wastes.”

Accordingly, even if the designated wastes (referring to the wastes prescribed by Presidential Decree as harmful substances that may pollute the surrounding environment, such as waste oil and waste acid, or cause harm to human body, among the industrial wastes; hereinafter Article 2 subparagraph 4 of the Wastes Control Act), among the waste disposal business, a person who intends to engage in the business of collecting, transporting, recycling, or disposing of wastes shall submit a “waste disposal business plan” stating the outline of the business prior to filing an application for permission, details of installation of facilities, equipment, etc. to the Mayor/Do Governor (Article 25(1)). In addition, the Mayor/Do Governor shall examine whether the submitted waste disposal business plan has impact on human health or surrounding environment by improving the environmental standards established under Article 7 of the Water Supply and Waterworks Installation Act through the installation and operation of waste disposal facilities or by making it difficult to maintain environmental standards under Article 12 of the Framework Act on Environmental Policy (Article 25(2)4), as well as the environmental standards established by the Framework Act on Environmental Policy to determine whether such plan has an impact on human health or surrounding environment.

Article 12(1) of the Framework Act on Environmental Policy cited by Article 25(2)4 of the Wastes Control Act provides that “The State shall establish environmental standards in consideration of the impact, etc. on the ecosystem or human health, and ensure that their propriety is maintained in accordance with the changes in environmental conditions.” Furthermore, the legislative intent of Article 12(1) of the former Framework Act on Environmental Policy, which provides that “The State shall establish environmental standards, and ensure that such standards shall be maintained in accordance with changes in environmental conditions,” is to be considered when establishing environmental standards in Presidential Decree, and to strengthen the direction of environmental standards and protect public health by strengthening the environmental standards more than the previous ones.”

Furthermore, Article 13 of the Framework Act on Environmental Policy stipulates matters to be considered for the maintenance of environmental standards as the title of “maintenance of environmental standards” and “the maintenance of environmental standards,” which include “prevention of environmental deterioration and removal of the factors thereof (Article 13 subparag. 1), “refluence of environmental pollution and environmental damage due to the use of new science and technology (Article 2 subparag. 2),” “prevention of environmental pollution and environmental damage due to the use of new science and technology (Article 3 subparag. 3)” and “reasonable allocation of funds to prevent environmental pollution (Article 4).” Here, “environmental” includes both “living environment” and “natural Environment” (Article

As such, the Wastes Control Act and the Framework Act on Environmental Policy require that the non-designated wastes be engaged in environmental-friendly waste disposal business on the basis of the legislative purpose of the Wastes Control Act and the Framework Act on Environmental Policy.

In light of the contents, structure, and legislative intent of the aforementioned relevant provisions, an administrative agency may determine the suitability of a waste treatment business plan by fairly examining the impact on the living environment and the natural environment, such as whether such impact on human health or the surrounding environment is affected, and the administrative agency has broad discretion (see Supreme Court Decision 2017Du46783, Oct. 31, 2017).

Therefore, when a court examines the deviation and abuse of the discretion of an administrative agency in relation to a decision on appropriateness, it shall be determined with careful consideration by comprehensively taking into account the natural environment of the relevant region and the living environment of residents, the balance of rights and interests among interested parties having conflicting interests, and the legislative purport of various regulations on the protection of environmental rights. Determination of discretion by an administrative agency on the requirements that require forecast of uncertainty and ripple effects that may arise in the future, such as “an impact on the natural environment and living environment” need to be widely respected unless there are circumstances such as where the content is not considerably reasonable or where it is clearly contrary to the principle of equity or proportionality when comparing the conflicting interests or values (see, e.g., Supreme Court Decision 2016Du55490, Mar. 15, 201

Meanwhile, the circumstance that a disposition is a deviation from or abuse of discretionary authority ought to be asserted and attested by the person disputing the validity of the disposition (see, e.g., Supreme Court Decision 2015Du41579, Oct. 27, 2016). In a case where an administrative agency simply briefly stated the purport that the disposition did not meet the statutory permission criteria, etc. stipulated in the non-existence concept in the relevant disposition’s non-conformity notification in the litigation procedure for revocation of a non-conformity notification, the administrative agency should clarify the specific grounds for non-permission by citing the basis for determination or data, etc. which caused the disposition to be taken. In such a case, the Plaintiff disputing the validity of the non-permission notification of the waste disposal business plan, which is a discretionary act, need to make an additional assertion and submit materials in the litigation procedure in order to clarify that there was an error of law of deviation or abuse of discretionary authority (see Supreme Court Decision 2018Du49796, Dec. 27, 2018)

2. On the following grounds, the lower court determined that the notice of non-conformity with the instant business plan (hereinafter “instant disposition”) was unlawful as it deviates from and abused discretion.

A. The Defendant presented only the fact that the residents of ○○○○ (188 households 103), and △△△△△ (64 households 115) reside in a group in a group within around 300 meters from the planned area of the comprehensive waste disposal recycling business (hereinafter “instant business”), as stated in the Plaintiff’s business plan, are located in the group, and that the community center and the school are located in the group, and there is no specific degree of dust dust, sewage, noise, etc., as the instant business plan, and there is no objective data on which degree of damage to the health of neighboring residents.

B. The instant project contributes to the public interest of producing new and renewable energy by recycling wastes.

3. However, examining the following circumstances revealed by the evidence duly admitted by the lower court in light of the legal doctrine as seen earlier, the lower court’s determination is difficult to accept.

A. A group residential area is located near the instant planned area. Examining the scale of waste disposal facilities to be installed and operated in the instant planned area, waste disposal business processes, etc., there is room to deem that dust scattering generated in the process of waste collection and transportation, waste crushing, etc., and other pollutants are likely to adversely affect the living environment of neighboring residents.

B. In particular, dust dust generated from the instant planned project area is likely to easily spread to neighboring collective housing areas by the △ line of the national highways with which the instant planned project area is adjacent, and thus, it seems that the degree of the impairment of living environment caused by the scattering dust, etc. generated by the operation of the project in the instant planned project area is not likely to be excessive.

C. The river running in the direction of a neighboring collective dwelling area is located at approximately 100 meters north of the planned area of the instant project. The said river is likely to be used as agricultural water and drinking water for neighboring residents. It is difficult to readily conclude that the Plaintiff’s plan to install a septic tank inside the planned area of the instant project fully with the risk of water pollution in the river.

D. According to the business plan submitted by the Plaintiff, 60t of business waste will be transported daily to the instant planned area, and 53t of recyclables will be shipped daily from the instant planned area. The frequent entry of large trucks for waste transport and shipment of recycled products can be a factor to increase the risks of traffic in neighboring areas.

E. There are many cases where reinstatement is almost impossible due to environmental pollution, and only ex post regulation alone limits the recovery of damage caused by environmental pollution. In a case where the environment is likely to seriously pollute, it is important to prevent it in advance. Therefore, it is difficult to readily conclude that there was an error of deviation or abuse of discretionary authority, such as a violation of the principle of proportionality, based on the disposition of the instant case, which is the grounds for disposal of “conscept about an impact on human health or the surrounding environment

F. If so, the lower court should have deliberated the Defendant’s judgment by having the Plaintiff submit additional arguments and materials related to the illegality of the Defendant’s judgment on the ground that the Defendant did not simply produce objective data to recognize the adverse impact of the Defendant’s residential environment in the fugitive dust, water pollution, and neighboring collective residential areas.

G. Nevertheless, the lower court determined that the instant disposition was an unlawful act of deviating from and abusing discretionary authority without adding a review thereon. In so doing, the lower court erred by misapprehending the legal doctrine on notification of conformity with the waste disposal business plan under the Wastes Control Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)