2012Guhap353 Revocation of Disposition of Refusal of Waste Disposal Project Plan

A Stock Company

OB Representative Director

Law Firm Gyeong, Attorneys O Tae-tae et al., Counsel for the plaintiff-appellant-appellee)

Sacheon Market

Litigation Performers C, Dood

December 6, 2012

January 3, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of return of the waste treatment business plan against the plaintiff on November 8, 2011 shall be revoked.

1. Circumstances and basic facts of the disposition;

A. The Plaintiff is a corporation whose business purpose is general waste disposal business, etc.

B. On May 1, 2007, the Plaintiff applied for designation of operator and approval of implementation plan of the waste disposal facilities development project (hereinafter referred to as the "project in this case") within the business complex E-si, Sacheon-si, Incheon-si (hereinafter referred to as the "project complex in this case"). On May 1, 2007, the Gyeongnam-do Governor designated the Plaintiff as the operator of the project in this case pursuant to Article 16 of the Industrial Sites and Development Act (amended by Act No. 8014 of September 27, 2006; hereinafter referred to as the "Industrial Sites Act"), and approved and publicly notified the Plaintiff's implementation plan on the 3th of the same month (hereinafter referred to as the "approval and public notification of this case"). The contents of the approval and public notice of this case are as follows.

3. Objectives and outline of the project;

(a) E-local industrial complexes, E-local industrial complexes (two complexes), and E-corporate complexes for foreigners (hereinafter referred to as "each of the industrial complexes in this case") shall ensure the environmental safety of wastes generated from places of business, and install reasonable disposal facilities meeting the standards for the relevant Acts and subordinate statutes, to minimize environmental impacts by sanitary, stable, and efficient disposal of general wastes at places of business, and at the same time to improve the health and sanitation of local residents and promote a pleasant urban

(b) An outline: 1,040,423 square meters of general wastes;

4. The location and area of the project site;

(a) Location: Sacheon-si F;

(b) Area: 54,823.5 square meters: Period for implementation of the project: From January 2008 to June 2, 2012, 31.6 square meters: 54,823.5 square meters;

D. Meanwhile, the Gyeongnam Do governor had consulted with the defendant and other related agencies prior to the approval and public notice of this case. The defendant presented an opinion that "the introduction of outside wastes into the Corporation for the long-term and stable disposal of wastes generated in the E industrial complex", and the plaintiff presented a plan to take measures that "the disposal of the general wastes discharged from the place of business other than the industrial complex is installed for the purpose of disposing of the general wastes generated in the industrial complex of this case for at least 13.9 years, taking into account that the initial waste disposal facility was installed for the purpose of disposing of the general wastes generated in the industrial complex of this case for at least 13.9 years."

E. At the time of the approval and public notice of the instant case, the Do governor issued a condition that “it is not possible to bring in the industrial complex outside of the industrial complex for the long-term and stable disposal of wastes generated from the E industrial complex, but in inevitable cases, it is necessary to implement the necessary procedures after prior consultation with the Defendant.” On January 14, 201, the Plaintiff submitted the instant business plan to the Defendant pursuant to Article 25(1) of the Wastes Control Act. On the following grounds, the Defendant failed to reflect the current conditions and conditions in the instant business complex pursuant to Article 25(2) of the Wastes Control Act, and the Plaintiff rejected the said business plan as a business plan that does not comply with the conditions of the approval and public notice of the instant case.”

Reasons for rejection

A. The current situation where a private general industrial complex and a foreigner-only industrial complex have been completed on February 2, 2007, and the present factory entry price has been completed, and there is a substantial difference between the present situation and the present situation, where the commercial wastes subject to reclamation in an industrial complex have been generated 9.3 tons per day (statistical data in 2009) or the quantity of industrial wastes subject to reclamation in a business plan is predicted to be 78.1 ton per day (data in 2001).

B. The daily landfill volume of 198 tons (use in 16 years) is unclear that a waste import plan for 78.1 tons and remaining 119.9 tons of wastes subject to reclamation per day in an industrial complex, which is an excessive plan for the purpose of bringing in industrial wastes outside the business complex, which is not within the business complex of this case.

C. From 348,420 meters of reclamation capacity to 1,040,423 square meters without evidentiary materials, the reclamation capacity has been excessively expanded, and it is apprehended that the design review direction of the Nakdong River basin environmental office might deteriorate the adverse impact on the surrounding living environment because it is not reflected in the design review direction of the Nakdong River basin environmental office, and thus, it has been planned as a unreasonable treatment facility inconsistent with the purpose of the approval and announcement of the instant case

G. On October 201, the Plaintiff again submitted a business plan concerning the instant business to the Defendant. On November 8, 2011, the Defendant rejected the business plan again on the ground that there was no particular change in the original business plan.

[Ground of recognition] Facts without dispute, Gap 1, 2, 3, 5, 6, 7 (including paper numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff obtained the approval of the instant project from the Mayor/Do governor on May 1, 2007 pursuant to Article 18 of the Industrial Sites Act. At that time, the Mayor/Do governor at the time consulted with the Defendant, the relevant administrative agency, the river basin basin environmental office, etc. pursuant to Article 21(2) of the Industrial Sites Act, so it is deemed that he/she obtained the approval for installation of waste disposal facilities under Article 29(2) of the Wastes Control Act pursuant to Article 21(1)27 of the Industrial Sites Act. Accordingly, the Defendant’s return of the Plaintiff’s project plan is illegal disposition against the approval of the instant project and the approval for installation of waste disposal facilities deemed as stipulated under Article 21(1)27 of the Industrial Sites Act.

(2) In addition, the defendant has the authority to submit his opinion to the Gyeongnam-do Governor and there is no authority to revise the plaintiff's business plan which is deemed to have received the approval of this case itself or the plaintiff's business plan which is deemed to have already been notified of suitability, and the defendant's disposition of this case which

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) General legal principles

(A) The Wastes Control Act aims to contribute to environmental conservation and the improvement of the quality of the people’s lives by preventing the generation of wastes to the maximum extent possible (Article 1 of the Wastes Control Act). Examining the structure and text of Article 28(1) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 467, Jul. 2012) and Article 25(2), (3), and (4) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 1467, Jul. 2012) to efficiently carry out waste disposal projects, such as having the head of a local government establish and operate waste disposal facilities so that wastes can be properly treated, providing technical and financial support, coordinating waste disposal projects within his/her jurisdiction (Article 4(1) and (2) of the Wastes Control Act).

(B) Furthermore, the purport of the system that provides a notice of conformity with the business plan prior to the permission for a waste treatment business is to prevent the applicant for the permission, since the person who intends to operate a waste treatment business voluntarily installs a facility, etc. and applies for the permission, and if the business plan is found inappropriate at the permission stage, it would incur enormous economic and time loss to the applicant for the permission. Thus, at the same time, the agency should review the business plan in advance and notify the applicant of conformity with the requirements for the permission at the permission stage, and at the later time, shall promptly review only the remaining requirements for the permission at the permission stage. Thus, even if a person has facilities, equipment, and technical ability, etc. at the examination stage of conformity with the business plan, if there is a serious public interest necessity to make it difficult to grant the permission for a waste treatment business difficult to determine and notify the appropriateness of the business plan in consideration of these circumstances, and enhance trust in administration. Furthermore, the grounds provided for each subparagraph of Article 25(2) of the Wastes Control Act, prior to the permission for a waste treatment business, can be seen as more specifically and clearly and more specific scope of discretion to exercise the discretionary authority.

(C) In full view of the above legislative purpose and provisions of the Wastes Control Act, the nature of permission for waste disposal business, and the purport of the system to notify conformity with the project plan, the public interest of the smooth and appropriate disposal of wastes is responsible for and realized of waste disposal business. In examining whether a waste disposal business plan is appropriate, where the review of the matters listed in each subparagraph of Article 25(2) of the Act is deemed to pose a risk of undermining the public interest, such as the implementation of stable and efficient responsible administration for collection, transportation, and disposal of waste, even if there is no conflict or problem, it shall be deemed that a non-conformity notification of the project plan may be made on such ground (see Supreme Court Decision 2011Du1283, Nov. 10, 201).

(2) As to the assertion of the above A(1)

(A) ① Article 18(1) of the Industrial Sites Act provides that a project implementer of a general industrial complex shall prepare an implementation plan for development of the general industrial complex as prescribed by Presidential Decree and obtain approval from the person authorized to designate the general industrial complex. In such cases, where the Mayor/Do Governor approves the implementation plan, the main sentence of Article 18(2) provides that "the person authorized to designate the general industrial complex shall consult with the head of the competent administrative agency in advance when he/she intends to approve the implementation plan for development of the general industrial complex under paragraph (1)." In addition, Article 21(1)27 of the same Act provides that "the person authorized to designate the industrial complex (the person authorized to approve the implementation plan) has already consulted with or obtained approval from the head of the relevant administrative agency for installation or report of waste disposal facilities under Article 29 of the Wastes Control Act, and Article 19-2 provides that "the public notification or announcement of approval or permission under the following relevant Acts shall be made to the Mayor/Do Governor or the head of the competent Si/Gun/Gu."

(B) In light of the above facts, (i) Article 29(2) of the Wastes Control Act provides for the approval of the Minister of Environment on waste disposal facilities to be installed by a person other than the person who has obtained or intends to obtain permission for a waste disposal business under Article 25 of the same Act; (ii) Article 21(1)27 of the Industrial Sites Act; and Article 29 of the Wastes Control Act appears not to apply to the Plaintiff; and (iii) Article 29 of the same Act provides that the Plaintiff initially performed the procedure for authorization and permission under the Wastes Control Act; and (iv) in the approval and announcement of the instant case, the Plaintiff clearly stated that the purpose of the instant project is to dispose of waste within the industrial complex (the Plaintiff’s business plan is not inconsistent with the purpose of the instant industrial complex; (iv) Article 29(2) of the same Act provides that the Plaintiff’s act of installing reasonable disposal facilities meeting the standards for relevant laws and regulations to ensure the safe and efficient disposal of general waste at the time of the instant construction of waste disposal facilities; and (iv) Article 2 of the Plaintiff’s and announcement of the instant urban environment at the same time.

(C) Meanwhile, the Plaintiff’s assertion that it conforms to the purpose of approval conditions is to prepare and submit a project plan based on the volume of waste at the time of applying for permission taking into account the increase of waste in an industrial complex or possibility of bringing in external waste. However, the Plaintiff’s assertion that the current volume of waste subject to reclamation in each industrial complex of this case, the occupancy of which has been completed, is more than 9.3 tons per day, and there is no objective evidence to acknowledge the increase of volume of waste in the future. ② The Plaintiff’s plan submitted to the Plaintiff is currently 43.6 tons and/or more than 9.3 tons of the current volume of waste subject to reclamation in an industrial complex in the Changwon, the total volume of waste generated in the industrial complex of this case as of 78.1 ton of the current volume of waste generated in an industrial complex of 201 (Evidence No. 2 of the Plaintiff’s statement). It appears that the Plaintiff’s construction of the urban environment and sanitary treatment facilities in each industrial complex of this case is not likely to violate the Plaintiff’s reasonable environmental health and sanitary standards.

(D) In addition, the Plaintiff asserted that, when granting a license for a waste disposal business pursuant to Article 25(7) of the Wastes Control Act, it was unlawful since the Defendant rendered the instant disposition that restricts the business territory of the waste disposal business even though it could not attach conditions to restrict the business territory of the waste disposal business other than the waste collection and transportation business. However, as seen earlier, the instant disposition was due to the fact that the Plaintiff’s business plan might violate the purpose of the approval and public notice of the instant business, depending on the excessive calculation of the waste disposal volume

In light of the fact that the judgment belongs to the administrative agency's objective discretion, it is reasonable to view that the defendant disposed of this case to the plaintiff in the sense that the defendant properly calculated the waste amount to be generated in each industrial complex of this case. Thus, the plaintiff's assertion on different premise is without merit.

(3) As to the allegation of the above A (2), the Gyeongnam-do Council delegated the authority to notify the appropriateness of the construction waste disposal business plan to the head of each Si/Gun under Article 2(1) [Attachment 1] and 2(5)(b) of the Ordinance on the Entrustment of Administrative Affairs to the Gyeongnam-do. The defendant exercised the authority delegated under the above delegation Ordinance and issued the instant disposition, and the plaintiff's assertion on the different premise

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

The presiding judge shall be appointed from among the judges;

Judges Jeon Soo-tae

Judges Park Jong-dae