[1] Whether the excess discharge dues under Article 41 of the Water Quality and Aquatic Ecosystem Conservation Act may be imposed on the discharge facilities which discharge all wastewater into wastewater treatment facilities, etc. through the drainage facilities (affirmative)

[2] In a case where the Cheongnam-do governor imposed the excess discharge dues along with the improvement order on the ground that water pollutants were discharged in excess of separate permissible emission levels publicly notified by the Minister of Environment as a result of the inspection of pollution level of wastewater discharged into wastewater terminal treatment facilities in an industrial complex, through the electric treatment facilities installed inside the place of business of the company A engaged in the agricultural and fishery products processing and sale business, the case holding that the judgment below did not err in the misapprehension of legal principles as it constitutes a unnecessary double regulation on the electric treatment facilities forming an organic integrated part

[1] Article 41 of the Water Quality and Ecosystem Conservation Act, Article 45 of the Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act / [2] Article 41 of the Water Quality and Aquatic Ecosystem Conservation Act, Article 45 of the Enforcement Decree of the Water Quality and Aquatic Ecosystem Conservation Act

NewB Co., Ltd. (Attorney Yoon-man et al., Counsel for the defendant-appellant)

Do Governor of Chungcheongnam-nam (Attorney Transfer List, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2010Nu2768 decided May 12, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 32 (1) of the Water Quality and Aquatic Ecosystem Conservation Act (hereinafter referred to as the “Act”) provides that “the permissible discharge standards for water pollutants discharged from wastewater discharge facilities (hereinafter referred to as “wastewater discharge facilities”) shall be set by the Ordinance of the Ministry of Environment.” Article 32 (8) of the same Act provides that “The Minister of Environment may, notwithstanding the provisions of paragraph (1) of the same Article, set and publicly notify separate permissible discharge standards for the discharge facilities which discharge all wastewater into wastewater discharge facilities through the wastewater terminal treatment facilities under Article 48 or the sewage terminal treatment facilities under subparagraph 5 of Article 2 of the Sewerage Act, only those items which can be properly treated from the wastewater terminal treatment facilities or the sewage terminal treatment facilities under Article 2 (1) of the Enforcement Decree of the same Act, may impose the excess discharge dues under Article 41 of the Act and Article 45 of the Act on

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below acknowledged that the plaintiff operated a pre-treatment facility installed on its own to purify wastewater generated from the plaintiff's factory according to its adopted evidence. The wastewater generated from the plaintiff's factory flows into the exclusive wastewater treatment facility of this case after the primary purification from the pre-treatment facility of this case, and finally discharges it to the public waters after purification. The wastewater treatment facility of this case is contributed jointly by enterprises located in the industrial complex of this case to the Cheongnam-do, and only the plaintiff bears the disposal costs while discharging wastewater into the wastewater treatment facility of this case. The water quality which is finally discharged from the wastewater treatment facility of this case complies with the criteria for effluent water quality and the water capacity of the facility is capable of treating the plaintiff's wastewater sufficiently. However, since it is found that the Minister of Environment, despite the absence of an announcement of the Ministry of Environment No. 206-48 on April 5, 2006, it did not constitute an unlawful act as stated in the ground of appeal by the amendment of the former Water Quality Conservation Act.

2. As to grounds of appeal Nos. 2, 3, and 4

Examining the reasoning of the judgment below in light of the records, the court below is just to determine that the permissible emission levels are set within a certain range of the level exceeding the upper limit of the effluent water quality standards, so it cannot be deemed that the defendant did not consider the matters prescribed in Article 41 (2) 6 of the Act and Article 56 of the Enforcement Rule of the Act when he disposes of the case in this case on the grounds that the excess emission levels are already considered in light of the excess rate of the permissible emission standards per se, and that Article 41 (1) of the Enforcement Decree of the Act and Article 41 (1) of the Act on the Requirements for Imposition of Discharge Dues do not seem to deviate from the limit of delegated legislation, and there is no error in the judgment contrary to the principle of strict interpretation of the delegated legislation, as otherwise alleged in the ground of appeal. Articles 41 and 45 of the Enforcement Decree of the Act limit the scope of the delegated legislation, and thus it does not violate the principle of strict interpretation of the delegated administrative disposition.

3. As to grounds of appeal Nos. 5 and 6

Examining the reasoning of the judgment below in light of the records, in this case where water pollutants in wastewater discharged from the plaintiff's electric treatment facilities exceed the permissible discharge standards under Article 32 (8) of the Act and discharged water below the criteria for effluent water quality through wastewater treatment facilities in this case, the court below held that even if the wastewater discharged below the criteria for effluent water quality through the wastewater treatment facilities in this case, the plaintiff cannot be excluded from the imposition of discharge dues pursuant to the former part of Article 41 (3) of the Act, and further, the court below's determination that the restriction of the target of reduction or exemption under the latter part of Article 41 (3) of the Enforcement Decree of the Act to basic discharge dues is within the scope delegated by the Act, and there is no error of law by misunderstanding the legal principles as to exemption from the imposition of discharge dues

4. As to ground of appeal No. 7

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that in this case where the water quality pollutants of wastewater discharged from the plaintiff's exclusive treatment facilities exceed the criteria for effluent water quality and exceeded the permissible discharge levels under Article 32 (8) of the Act, the defendant's failure to apply the exemption and reduction provisions of effluent charges under the latter part of Article 41 (3) of the Act to the plaintiff is a deviation or abuse of discretionary authority, and there is no violation of law by misapprehending the legal principles as to deviation or abuse of discretionary authority, as otherwise alleged in the

5. Conclusion

Therefore, the appeal is 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.

Justices Jeon Soo-ahn (Presiding Justice)