[1] Where it is necessary to re-determine the scope of the affected adjacent area due to the expiration of the term of validity of the determination of the affected adjacent area of waste disposal facilities previously publicly notified and the change of environmental impact, whether the agency installing waste disposal facilities should re-establish a residents support council in the same manner as “where the affected adjacent area is not determined and publicly notified” pursuant to Article 18(1) [Attachment Table 2] 2(b) of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, and whether the residents support council composed of the representatives of local residents residing in the affected adjacent area previously determined and publicly notified has the authority or qualification to

[2] The purport of Article 18(1) [Attachment 2] subparag. 2(b) of the Enforcement Decree of the Act on the Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, where the affected area of waste disposal facilities is not determined and publicly announced, and whether the standing to sue to seek revocation, etc. of the affected area to residents who reside within 300 meters from the boundary of the site for waste incineration facilities is recognized (affirmative in principle)

[1] Article 17(1), (2), and (3) of the Act on Promotion of Installation of Waste Disposal Facilities, Assistance, etc. to their Environs, Article 17(1), Article 18(1) [Attachment Table 2] subparagraph 2(b), (6), and (7) of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities, Assistance, etc. to their Environs, and Article 18(1) [Attachment Table 2] subparagraph 2(b) of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities, Assistance, etc. to their Environs, Articles 12 and 35 of the Administrative Litigation Act

[2] Supreme Court Decision 2003Du13489 decided Mar. 11, 2005 (Gong2005Sang, 596)

See Attached List of Plaintiffs (Law Firm Chang-chul, Attorneys Park Young-ok et al., Counsel for the plaintiff-appellant)

Chuncheon Market (Law Firm Chungcheong, Attorneys Jeon Woo-he et al., Counsel for the plaintiff-appellant)

Seoul High Court (Chuncheon) Decision 2014Nu644 decided August 27, 2014

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Procedures for determining the affected neighboring areas of waste disposal facilities

A. The Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (hereinafter “Act”) and the Enforcement Decree thereof (hereinafter “Enforcement Decree”) provide for the following matters with respect to the determination of the affected adjacent areas of waste disposal facilities:

(1) An agency installing waste disposal facilities shall determine and publicly notify the surrounding areas anticipated to have environmental impact on the installation and operation of waste disposal facilities as the affected adjacent areas of waste disposal facilities within two years from the date on which the plan for installation of waste disposal facilities was publicly announced. Where the agency installing waste disposal facilities finds that there is a change in environmental impact after determining and publicly notifying the affected adjacent areas, it may adjust and publicly notify the affected adjacent areas (Article 17(1) and (3) of the Act and Article 17(1)

(2) An agency installing waste disposal facilities shall establish a consultative body for supporting residents (hereinafter referred to as “support consultative body”) to consult on matters concerning determination of the affected neighboring areas. The support consultative body shall be comprised of two experts, such as the Special Self-Governing Province/Si/Gun/Gu Council members in the area where the relevant waste disposal facilities are located, the council members of the Special Self-Governing Province/Si/Gun/Gu Council, the representative of residents, and two experts recommended by the representative of residents from among the support consultative body members, in principle, in consultation with the Special Self-Governing Province/Si/Gun/Gu council in which the relevant waste disposal facilities are located, taking into account the distance from waste disposal facilities, the degree of environmental impact, the number of residents, etc.

(3) The Support Consultative Body shall select a research institute that shall conduct an environmental impact assessment due to the installation and operation of the waste disposal facility within 90 days from the date of the public notice of the plan for installation of the waste disposal facility. The institute installing the waste disposal facility shall have the selected specialized research institute investigate the environmental impact, and shall consult with the Support Consultative Body on the determination of the affected adjacent area based on the results of the investigation. However, where the Support Consultative Body considers it not necessary to conduct an environmental impact assessment of the affected adjacent area, the relevant investigation may be omitted or substituted by the written opinion of review by the relevant experts (Article 17(2) of the Act;

(4) After the determination and announcement of the affected neighboring areas, an agency installing waste disposal facilities shall install convenience facilities for residents in the site of the relevant waste disposal facilities or in the vicinity thereof, and shall implement projects to support the improvement of income and the promotion of welfare of residents by creating the Resident Support Fund in order to support residents in the affected neighboring areas. The details thereof shall be determined through consultation with the Support Consultative Body (Articles 20, 21(1), and 22(4) of the Act, and Article 27(1) and (3) of the Enforcement Decree thereof).

B. In full view of the following circumstances revealed from the contents of these provisions, where it is necessary to re-determine the scope of the affected adjacent area because the validity period of the previous determination of the affected adjacent area has expired and environmental impact has been changed, the agency installing waste disposal facilities, like “cases where the affected adjacent area has not been determined and publicly notified” pursuant to Article 18(1) [Attachment Table 2] 2(b) of the Enforcement Decree, shall re-conform the Support Consultative Body with regard to the determination of the affected adjacent area, which is a local resident residing within 300 meters from the boundary date of the site for waste incineration facilities, recommended by the relevant Special Self-Governing Province, Si/Gun/Gu Council, and recommended by the relevant Special Self-Governing Province, Si/Gun/Gu Council. Furthermore, the Support Consultative Body consisting of “the residents residing in the affected adjacent area that was previously determined and publicly announced and the residents of Eup/Myeon/Dong residents recommended by the relevant Special Self-Governing Province, Si

(1) The role of the Support Consultative Body in a series of administrative processes differs from that prior to and after the determination of the affected area of waste disposal facilities. ① The Support Consultative Body is involved in the investigation of environmental impact, the selection of specialized research institutes to investigate environmental impact, and the determination of the scope of the affected area. This is to ensure that “the scope of persons eligible for the resident support program” is determined appropriately. ② On the other hand, the Support Consultative Body is involved in the determination of the detailed contents of the facility installation for residents or the resident support program for residents of the affected area after the affected area has been determined and published. This is to ensure that the Support Consultative Body appropriately provides and distributes limited resources, such as the Resident Support Fund, to residents of the affected area, directly and indirectly, to the residents of the affected area.

(2) Article 18(1) [Attachment 2] subparag. 2(b) of the Enforcement Decree of the Support Consultative Body provides that the representative of residents shall be selected from among the “resident residents who reside within 2 km from the boundary of a landfill site and within 300 meters from the boundary of a site for waste incineration facilities” with respect to the qualification of the representative of residents constituting the Support Consultative Body, and that “where the affected adjacent area has not been determined and publicly announced.” On the other hand, “where the affected adjacent area is determined and publicly announced,” the representative shall be selected from among “resident residents who reside in the affected adjacent area” and the two are different. This may be considered to reflect that the issue of determining the scope of the affected adjacent area and the issue of supporting and distributing limited resources in the affected adjacent area are different from

(3) After the affected neighboring area has been determined and published, the representative of residents selected from among the residents living in the affected neighboring area accounts for more than half of the fixed number of the Support Consultative Body. However, since the Resident Support Fund, which is a source of the resident support project, is limited, such representative of residents is highly likely not to change unfavorable to himself/herself due to the expansion or reduction of the scope of “persons subject to the resident support program”. Accordingly, it is difficult for them to play an objective and fair role in adjusting the scope of the affected neighboring area.

(4) Article 17(1) of the Enforcement Decree provides that where an agency installing waste disposal facilities determines and publicly notifies the affected neighboring areas and then there is a change in environmental impact, the affected neighboring areas may be adjusted and publicly notified. As such, under the premise that the effect of the affected neighboring areas determined and publicly notified once in the Enforcement Decree itself is not to be maintained over the period prior to the installation and operation of waste disposal facilities. Therefore, apart from how long the effective period can be determined, it is reasonable to deem that the designation of the effective period by an agency installing waste disposal facilities while determining and publicly notifying the affected neighboring areas is permissible under the relevant Acts and subordinate statutes, barring special circumstances, such as where the effective period expires when the agency installing waste disposal facilities determines and publicly notifies the affected neighboring areas, the determination and public announcement of the affected neighboring areas shall be deemed to be extinguished. Accordingly, the agency installing waste disposal facilities shall re-examine the environmental impact caused by the installation and operation of waste disposal facilities and make a new determination and public announcement of the affected

C. According to the reasoning of the first instance judgment cited by the lower court, the following circumstances are revealed.

(1) The Defendant is an institution that establishes and operates waste disposal facilities of a total business size of 179,390 square meters and a landfill area of 121,901 square meters (hereinafter “instant facilities”). The Plaintiffs are residents of Chuncheon-si (hereinafter omitted) located in the vicinity of the instant facilities, and the places where the Plaintiffs reside are located within 2 km from the boundary line of the instant facilities.

(2) On May 2, 1997, the Defendant decided the affected neighboring areas following the installation of the instant facilities, and designated and publicly notified the validity period as “198 to 201” (hereinafter “the first decision”). Accordingly, the affected neighboring areas did not include the affected neighboring areas in which the Plaintiffs reside.

(3) On January 1, 2012, the period of validity designated in the primary decision, and the Defendant publicly announced on January 1, 2012, “The designation of the affected adjacent areas shall be extended to December 31, 2012, and the scope of the affected adjacent areas shall remain the same as that of the previous decision” (hereinafter “the second decision”).

(4) A person whose effective period designated in the second decision expires, and the Defendant did not conduct a separate environmental impact assessment according to the intent of the Support Consultative Body constituted with respect to the first decision without undergoing a procedure for newly organizing a support Consultative Body and consulting, and on January 3, 2013, publicly notified on the following: “The scope of the affected adjacent areas of the instant facilities shall be extended to the time the use of the instant facilities is completed, maintaining the same as the second decision and maintaining the validity of the affected adjacent areas until the completion of use of the instant facilities” (hereinafter “instant decision”).

D. Examining the above circumstances in light of the relevant statutes and legal principles as seen earlier, it is determined as follows.

(1) In the initial first decision, the Defendant designated the term of validity of the determination of the affected adjacent areas of the instant facilities by the year 201, and as the term of validity expires and the scale of the instant facilities was expanded, the second decision was rendered on January 1, 2012. This was recognized as necessary to re-determine the scope of the affected adjacent areas of the instant facilities by conducting an environmental impact investigation. However, considering that a certain period is required for the investigation of environmental impact, the Defendant’s intent to maintain the scope of the affected adjacent areas of the instant facilities “temporary” at the end of the year can be deemed to be identical to the previous area

(2) Even according to the contents of the second decision, the Defendant is required to re-examine the environmental impact assessment in 2012 and make a new determination on the scope of the affected area of the instant facilities. Furthermore, the instant decision, based on the second decision, re-established after the expiry of the term of validity of the second decision, was subsequently made ex post facto after the expiry of the term of validity of the second decision. Furthermore, according to Article 18(1) [Attachment 2] of the Enforcement Decree applicable to the instant decision, the Defendant, at least in the instant decision, should have determined and publicly announced the affected area in accordance with the method of the Support Consultative Body in which “where the affected area has not been determined and publicly notified” was “where the affected area has not been determined and publicly notified, within 2 km from the boundary of the site of the waste landfill, and is a local resident residing within 300 meters from the boundary of the site of the waste incineration facilities, and recommended by the relevant Special Self-Governing Province, Si/Gun/Gu Council, and should have consulted with the new Support Consultative Body and the environmental impact assessment, scope of the affected area of the instant

(3) Therefore, the instant decision cannot be deemed as a disposition simply extending the term of validity, while maintaining the identity with the previous secondary decision, and the Defendant’s decision did not follow the procedure of organizing a new support consultative body again after the expiry of the term of validity of the second decision.

E. In the same purport, the lower court determined that the Defendant’s decision of this case without undergoing a procedure for re-organizationing a new support consultative body was unlawful in violation of the procedure regarding the determination of the affected neighboring areas under Articles 17(2) and 17-2(3) of the Act and Article 18(1), (6), and (7) of the Enforcement Decree of the Act. Such determination by the lower court is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the procedure

2. Regarding standing to sue

A. (1) A third party, who is not the direct counter-party to an administrative disposition, seeking the revocation or invalidity confirmation on the ground that he/she is likely to infringe or infringe his/her environmental interest by such disposition, is entitled to standing to sue to prove that his/her environmental interest is individually, directly, and specifically protected pursuant to the relevant laws and regulations or the relevant laws and regulations. However, in cases where the relevant laws and regulations or the relevant laws and regulations specifically stipulate the scope of the right of influence that is anticipated to infringe on the environment due to the business, such as the act done by such disposition, it may be anticipated that the relevant disposition will cause a direct and significant environmental damage to the residents within the affected area. Such environmental interest is the direct and specific interest that is individually protected for the individual residents, and thus, it is acknowledged that the infringement or infringement of the environmental interest is actually presumed and legally protected (see Supreme Court Decision 2009Du2825, Sept. 24, 2009, etc.).

(2) Article 18(1) [Attachment 2] Subparag. 2(b) of the Enforcement Decree provides that “Where the affected neighboring areas have not been determined and publicly announced” shall be organized as “where residents reside within 2 km from the boundary of the site of a waste landfill facility, and within 300 meters from the boundary of the site of a waste incineration facility, the support consultative body shall be organized as “the representative of residents of each Eup/Myeon/Dong recommended by the Special Self-Governing Province, Si

(3) The purport of the above provision is to allow the representative of residents selected from among the residents to become the members of the Support Consultative Body for Environmental Impact Assessment, the determination of the affected adjacent areas, and the decision on the resident support project, so that the residents may receive compensation for environmental disadvantage caused by the installation and operation of waste disposal facilities. The interests of the residents living within the above scope are direct and specific interests that are individually protected by the residents of the affected area of waste disposal facilities, and thus, standing to sue is recognized, barring special circumstances (see, e.g., Supreme Court Decision 2003Du13489, Mar. 11, 2005).

B. The lower court determined that the Plaintiffs had a legal interest to seek revocation of the instant decision, as they reside within 2 km from the boundary of the site of the instant facility. Such determination by the lower court is based on the legal doctrine as seen earlier, and is justifiable, and there is no error of misapprehending the legal doctrine on standing to sue

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Park Sang-ok (Presiding Justice)