Designation, public notification, etc. of facilities subject to reporting on malodor-emitting facilities 2020Du57042

Action for Revocation

UND Co., Ltd.

Head of Busan Metropolitan City Gun

Law Firm (LLC) International Law Firm, Attorneys Shin Jae-mo et al., Counsel for the defendant-appellant

Busan High Court Decision 2019Nu23395 Decided November 25, 2020

may 7, 2021

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

The grounds of appeal are examined.

1. Case history and the judgment of the court below

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

The Plaintiff operated the instant malodor-emitting facilities, which are medical waste incineration facilities, at the instant place of business located in Busan ( Address omitted).

When the civil petition related to malodor-emitting facilities of this case continues to exist, the employee in charge of the defendant collected samples for the inspection of malodor from the boundary line of the emission outlet and site of this case pursuant to Article 17(1) of the former Malodor Prevention Act (amended by Act No. 15655, Jun. 12, 2018; hereinafter referred to as the " Malodor Prevention Act") around September 22 and 35, 2018 and October 1, 2018, on two occasions, around 06:35 to 06:55.

At the time of the collection of the above sample, the employee in charge of the defendant prepared a record of the sample sample collection in attached Form 1 of the "ES 09130 of the official malodor test standards (the notice of the National Institute of Environmental Research was enacted on August 11, 2017 by the National Institute of Environmental Research, which was wholly amended to No. 2017-17, Nov. 27, 2018; hereinafter referred to as "the notice of this case") at the time of the collection of the sample," among the "ES 09130 of the notice of the National Institute of Environmental Research," and the record of the sample collection in attached Form 1 is written, but the "day" and "flale" are written in the statement of the sample collection.

The Busan Metropolitan City Health and Environment Research Institute measured malodor by air dilution in accordance with air dilution. On October 1, 2018, it judged that the sample collected from the boundary line of the site was inappropriate to meet the permissible emission levels.

On October 22, 2018, the Defendant: (a) made recommendations to improve facilities to comply with permissible emission levels pursuant to Article 14(1) of the Malodor Prevention Act (hereinafter referred to as “in this case’s recommendation”) on the ground that the Defendant, as a result of the said malodor inspection, on October 1, 2018, “the malodor emitted from the relevant malodor-emitting facilities exceeded permissible emission levels”; (b) on October 26, 2018, the Defendant designated and publicly notified the instant malodor-emitting facilities as facilities subject to reporting pursuant to Article 8-2 of the Malodor Prevention Act (hereinafter referred to as “disposition for designation and public announcement of the instant malodor-emitting facilities”) on the ground that “the civil petition related to the malodor continues to exist for at least one year with respect to the instant malodor-emitting facilities, and the complex malodor exceeded permissible emission levels at least three times.”

B. The lower court determined that, since samples collected without examining weather conditions, such as wind direction and morals, cannot be used as objective data, it cannot be readily concluded that malodors exceeding permissible emission levels have been emitted in the malodor emitting facility of this case on the sole basis of the result of the malodor test on the above samples, and even if the Defendant’s person in charge of the collection conducted a survey on weather conditions at the time of collecting samples, he did not keep objective data verifying the method of the investigation and the result, and did not enter them in the malodor collection record, the procedural defect should be significant, and thus, the instant recommendation and the designation and notification of the subject of report should be revoked

2. As to the violation of the collection procedure stipulated in the instant public notice (Ground of appeal No. 2)

A. According to '5.1 general matters regarding 'ES 09301 Air dilution Act', the notice of this case provides that "we shall investigate the conditions of factory location, position and operation conditions of factory immediately after arrival at the site, situations of distribution of total malodor at the site, weather conditions (e.g., day, temperature, wind, custom, etc.) of the area subject to the collection of samples," and "preparation of 5.2 collection register" provides that "we shall select collection points on the basis of the above matters and prepare a register of collection of samples in attached Form 1, 'ES09130 and storage of samples' as well as collection of samples. In the meantime, '5.4.1 selection of collection points and collection of samples' within the boundary of site 5.4', '5.1 general matters' should be examined and '5.1' should be determined as the site where malodor is highest' boundary.

B. The notice of this case was enacted by the President of the National Institute of Environmental Research as a public notice of the National Institute of Environmental Research, which aims to provide for all matters necessary to maintain accuracy and uniformity of measurement in measuring malodor pursuant to Article 6 of the Environmental Examination and Inspection Act. This is merely an internal business practice rule within an administrative agency in light of the form and content of the method of collecting samples and the method of measuring malodor. Thus, the method of collecting samples, etc. violates the procedure stipulated in the notice of this case, and thus, cannot be deemed unlawful merely because the method of collecting samples, etc. violates the procedure stipulated in the notice of this case, and thus, the administrative disposition issued based on the method cannot be deemed unlawful. In light of the content and purport of the relevant Act and subordinate statutes, it should be determined based on whether the samples collected in the procedure are serious enough to make use as objective data (see, e.g., Supreme Court Decision 2003Du3246, Dec. 10, 2004

Meanwhile, even according to the content of the notice of this case, the notice of this case is required to investigate the weather conditions in the area subject to the collection of samples, while citing weather conditions, temperature, wind, custom, etc. as an element of weather conditions subject to the investigation. As such, it cannot be deemed as a violation of the provision of the notice of this case as to the method of collecting samples solely on the ground that some of weather conditions in the statement of the record of collection of malodor have been disturbed.

Furthermore, the weather condition is an important factor in the prediction of the mobile route of malodor generation and the analysis of malodor, and among which information on winding is an important material in the analysis of the impact, etc. on the collection of samples at the relevant workplace and its neighboring area or another workplace. However, in light of the provisions of the notice in this case, the main purpose of the notice in this case is to investigate the weather conditions of the area subject to the collection of samples in relation to the "the selection of the collection point in the site boundary" in relation to the "the selection of the collection point in the collection of samples in the site boundary" in the notice in this case, rather than to ensure the objectivity of the collected samples, it seems that the collectionr would select the point that is deemed the highest malodor out of the site boundary.

Therefore, in light of the climate, customs, etc. at the time, unless there is any circumstance to deem that it is impossible to believe that the result of determination of inappropriate as to samples taken from the boundary line of the relevant place of business cannot be trustable as it is due to the influence, etc. of malodor produced in the surrounding area or another place of business, it cannot be said that the selection of collection points in the boundary line of the relevant place of business, the analysis and determination of samples conducted therefrom cannot be said to be unlawful solely on the ground that part of wind, morals, etc., such as wind, custom, etc., in the process of collecting samples,

C. Examining the aforementioned facts in light of the provisions of the instant notice and legal principles, it is difficult to readily conclude that the Defendant’s employee’s materials charged with the collection of samples on October 1, 2018 stated weathers in the malodor sample collection record sheet, temperature only, and wind and custom, even if they were to be a disturbance, it violated the procedure for the instant notice regarding the method of selecting the sample collection points and collecting samples on the boundary of the site, and even if they were to be deemed to have violated this, it is difficult to deem that the instant recommendation and the designation and notification of the target facilities subject to the instant report are unlawful.

D. Nevertheless, the lower court determined that the procedural defect in the process of collecting the above samples was serious enough to revoke both the instant recommendation for improvement and the designation and notification of a facility subject to reporting. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of the instant notification, and violation of the procedure for collecting samples, thereby adversely affecting the conclusion

3. Whether the Plaintiff emitted malodor in excess of permissible emission levels (ground of appeal No. 3)

A. The lower court, on October 1, 2018, determined that the instant recommendation for improvement and designation and notification of facilities subject to reporting were unlawful on the ground that it cannot be readily concluded that malodor exceeding the permissible emission levels was emitted from the instant malodor-emitting facilities solely on the basis of the result of the inspection of the said sample, since it is difficult to view that the sample was collected in a state of weather, including wind and morals, and without any other impact

B. However, the lower court’s determination is difficult to accept for the following reasons.

1) Since the soil and temperature of collecting samples are indicated in the malodor record sheet prepared on October 1, 2018, it appears that they were examined at the time of the collection of samples, and the wind and custom are air pages, but it is not presumed that they were not examined merely. According to the images, etc. of malodor gathering site photographs (Evidence A No. 11-1), it is difficult to readily conclude that they were not recorded in the malodor collection record sheet because they did not measure wind and custom, and rather, it is difficult to deem that they were investigated.

2) The lower court determined that it is difficult to believe the contents of each written confirmation (No. 5-1 to No. 5) that some companies around the instant business establishment did not work at the time of the collection of the said sample. However, the contents of the said written confirmation were presented on the grounds of the company’s ordinary working hours or the details of removal of expenses, etc., and it appears that the credibility cannot be easily dismissed solely on the ground that they were prepared at the Defendant’s request after eight months or more from the date of the collection

C. Nevertheless, the lower court determined that malodor exceeding permissible emission levels cannot be readily concluded to have been emitted in the instant malodor-emitting facilities without sufficiently examining whether weather conditions, etc. at the time of collecting the above samples, weather conditions in the area subject to collecting samples, impact of surrounding enterprises, etc.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Noh Tae-tae

Justices Kim Jae-hyung

Justices Min You-sook

Justices Lee Dong-won