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)

September 18, 2018

1. The Defendant’s notification of failure to comply with the comprehensive waste treatment business plan issued to the Plaintiff on March 28, 2017 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 6, 2017, the Plaintiff submitted a comprehensive waste treatment recycling business business plan (hereinafter “instant business plan”) pursuant to Article 25(1) of the Wastes Control Act and Article 28(1) and (3) of the Enforcement Rule of the same Act by setting the land of Gangwon-gun ( Address omitted) as a prospective project site (hereinafter “the instant prospective project site”).

B. The type of business listed in the instant business plan is “general waste recycling business” (hereinafter “instant business”), and wastes subject to business are “waste synthetic resin, waste synthetic rubber, waste synthetic fibres, waste synthetic fibres, and waste timber (including waste waste of levels 1, 2, and 3).”

C. On March 28, 2017, the Defendant issued the instant business plan notification (hereinafter “instant disposition”) to the Plaintiff on the ground that the instant business plan conflicts with subparagraphs 1 through 2 of Article 157 of the Rules on the Determination, Structure and Establishment Standards of Urban/Gun Planning Facilities (hereinafter “Rules”).

D. The Plaintiff filed an administrative appeal against the foregoing disposition, but the Gangwon-do Administrative Appeals Commission dismissed the Plaintiff’s claim on June 12, 2017.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap Nos. 1, 2, and 3, the purport of the whole pleading

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

Article 43 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) and Article 156 subparag. 1 of the Rules of this case excludes the installation of facilities for the purpose of recycling wastes from “waste disposal facilities” under Article 156 of the above Rules, and pursuant to the proviso to Article 156 of the above Rules and Article 38 subparag. 4 of the Enforcement Rule of the Wastes Control Act, the recycling facilities of the instant business (hereinafter “instant recycling facilities”) are merely 53 tons per day and do not constitute waste disposal facilities.

Therefore, since the Plaintiff’s workplace does not constitute “waste disposal facilities” pursuant to Article 156 of the instant Rule, the instant disposition, which applied Articles 157 subparag. 1 and 157 subparag. 2 of the instant Rule on a different premise, is unlawful as the grounds for the instant disposition do not exist.

(ii) the deviation and abuse of discretionary authority;

The instant disposition is unlawful by deviating from and abusing discretion on the following grounds.

A) A scheduled project under the instant project plan is to collect inflammable wastes, such as waste synthetic resin, waste synthetic rubber, waste synthetic fiber fibers, waste lumber, and waste timber, and make scrap, sorting, and drying them into solid fuel, SDRF, which is a solid fuel. Such a process of work is carried out within a sealed large factory building, and dust generated within a factory building is treated as a dust-proof facility and equipment, so there is no possibility that dust might be scattered externally.

B) The reason for the disposal that the water used in the process of removing the pollutants of wastes is based on vague concerns that the water used in circulation is likely to be leaked to the outside by the Defendant. The reason for the disposal that “the deterioration of the environmental pollution and the residential environment in neighboring areas is likely to occur due to the contamination of the workplace.”

B. Whether the instant project facilities should be installed according to the determination of an urban or Gun management plan

1) Location of the issue

The Defendant presented Article 157 subparag. 1 and subparag. 2 of the instant Rule as the instant disposition ground. However, the instant Rule was enacted by Ordinance of the Ministry of Land, Infrastructure and Transport pursuant to delegation of Article 43(2) of the National Land Planning and Utilization Act, which provides for the determination, structure, and installation standards of urban and Gun planning facilities. Thus, we examine whether the instant project facility constitutes “urban and Gun planning facilities” of the instant Rule, and, on the premise thereof, whether Article 157 subparag. 1 and 2 of the instant Rule applies.

2) Review of relevant legislation

A) Article 2 of the National Land Planning Act provides that “Urban/Gun planning” shall be classified into an urban/Gun master plan and an urban/Gun management plan (subparagraph 2), and “urban/Gun management plan” shall refer to the following plans concerning the use of land, traffic, environment, landscape, etc. formulated for the development, maintenance, and preservation of the Gun (Paragraph 4(c) above.” As a part of subparagraph 4(c) above, “plan for the installation, maintenance, or improvement of infrastructure” is stipulated, and one of the infrastructure “environmental facilities, such as sewerage and waste disposal facilities,” and “urban/Gun planning facilities” shall be construed as “facilities determined by an urban/Gun management plan among infrastructure” (subparagraph 7).

B) Article 43(1) main text of the National Land Planning and Utilization Act provides that “In order to install infrastructure, it shall be determined by an urban or Gun management plan in advance,” and the proviso provides that “the same shall not apply to cases prescribed by Presidential Decree in consideration of the characteristics, etc

C) According to Article 35(1) of the Enforcement Decree of the National Land Planning and Utilization Act, Article 6(1), and Article 6(2) of the Enforcement Rule of the same Act, “recycling facilities among waste disposal facilities” may be installed without exceptionally determination of an urban or Gun management plan. Articles 156 and 157 of the instant Rule provide for the criteria for determination, etc. of “urban or Gun planning facilities” i.e., “facilities determined by an urban or Gun management plan among infrastructure”. Thus, if the instant project facilities constitute infrastructure that can be installed without determination of an urban or Gun management plan pursuant to the National Land Planning and Utilization Act, the instant Rule based on the determination of an urban or Gun management plan is deemed difficult.

3) Determination

A) Article 2 subparag. 8 of the Wastes Control Act provides that “waste disposal facilities” means both interim and final waste disposal facilities and waste recycling facilities, as prescribed by Presidential Decree, and Article 5 [Attachment 3] of the Enforcement Decree of the same Act provides that waste disposal facilities are subdivided into “interim disposal facilities, final disposal facilities, and recycling facilities.” Of them, the recycling facilities (No. 3) are divided into mechanical recycling facilities (c., compressating, pressureing, crushing, crushing, crushing, dec., dec., and recycling facilities) and chemical recycling facilities.

B) Article 2 Subparag. 7 of the Wastes Control Act provides that “recycling” shall be construed as “reusing or recycling wastes, or making wastes reusable or reclaimable (a)” (b) and “the activities to recover energy under Article 2 Subparag. 1 of the Energy Act from wastes or make wastes recoverable or to use wastes as fuel, as prescribed by Ordinance of the Ministry of Environment (b).”

Article 3(1) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 757, May 17, 2018; hereinafter the same) provides for “activities prescribed by Ordinance of the Ministry of Environment” under Article 2 subparag. 7(b) of the former Enforcement Rule of the Wastes Control Act (amended by Ordinance of the Ministry of Environment No. 757, May 17, 2018; hereinafter the same) and provides for “activities to make combustible solid wastes into solid fuels in compliance with the standards prescribed in attached Table 7 of the Enforcement Rule of the Act on the Promotion of Saving and Recycling of Resources” (a) and “activities to make them into a state where energy can be recovered by means of anti-suspecting fire extinguishing, refining, e.g. (b)).”

The Enforcement Rules of the Act on the Promotion of Saving and Recycling of Resources set the quality standards for solid fuels, and stipulate the quality standards for general solid fuels (SF) and bio-solid fuels (BO-SF) respectively.

C) Examining the instant business facilities based on the instant business plan (Evidence No. 1), the type of the instant business is “general waste recycling business,” and the name of the business is “business entity” classified by the type of waste collection, transportation, and material, and refers to the business of manufacturing and recycling new renewable energy-oriented fuels SRF and waste synthetic resin pelletss.” As to the method of disposal, the method of disposal is “breaking, crushing, crushing, and plastic flag,” and the standard of facilities and equipment for interim waste recycling business, final recycling business, and comprehensive recycling business as prescribed by the Wastes Control Act. As to the standards for waste storage facilities, the term “waste storage facilities, installation of recycling facilities (i.e., crushing, sorting, crushing, plastic (Adong), plastic (Adong), scrap, screening, crushing, pellets, pellets (Bdong), and vehicles”).

D) The quantity of products subject to recycling, operating hours, and a disposal plan for generated wastes are as follows:

b. The table contained in the main text of the product b. The kinds of products, the product name, mixed synthetic resin recycling SRF (io-SRF) waste synthetic resin (PE, PP, PS, ABS, etc.) waste (PE, PS, PS, ABS, etc.) quantity per production of 30 tons/day per 20 tons/day per 3/day per 300 tons/day per day per 9,000 tons/day per 9,000 tons/day/day per 900 tons/day per 3/day per 300 tons/day per month of treatment. Wastes generated in the course of the recycling process of the waste disposal plan for generated wastes on August 25, 200 hours per month by classifying operating hours, shall be properly treated by concluding an entrustment contract with the waste disposal company after obtaining a report from the waste disposal company.

E) In light of the provisions of the above Wastes Control Decree, the facilities and equipment stated in the instant project plan are deemed to fall under the facilities and equipment for crushing, crushing, crushing, and plastic equipment for the recycling of wastes, and for the storage and transportation of such equipment, and the instant project facilities are deemed to fall under the “recycling facilities” among waste disposal facilities.

4) Sub-determination

Since the instant business facilities are deemed to fall under recycling facilities among waste disposal facilities, it is determined that they do not fall under urban/Gun planning facilities that can only be installed by the decision of an urban/Gun management plan. However, without examining whether the instant business facilities fall under urban/Gun planning facilities, the Defendant presented only Article 157 subparag. 1 and 2 of the instant Rules as disposal grounds on the premise that the instant rules are applied, without examining whether the instant business

Therefore, the instant disposition is unlawful, since it is deemed that there is no ground for disposition.

C. Whether the instant establishment constitutes “waste disposal facilities” under Article 156 of the instant regulations

Article 156 of the Rules of this case provides for “waste disposal facilities” and Article 157 provides for the criteria for determination of waste disposal facilities on the premise of such determination. As seen earlier, the instant business facilities are not deemed to fall under “urban/Gun planning facilities” premised on the determination of urban/Gun management plans. However, even if the instant rules are applicable, considering the following facts and circumstances revealed according to the aforementioned evidence, it is difficult to view the instant business facilities as “waste disposal facilities” subject to Article 157 of the Rules, as they fall under the proviso of Article 156 of the Rules of this case.

Therefore, the grounds for the instant disposition, which is premised on Article 157 subparag. 1 and No. 2 of the Rules of this case, are deemed to be unlawful in any way.

1) Article 156 of the instant Rule provides that the facilities under any subparagraph of Article 38 of the Enforcement Rule of the Wastes Control Act shall be excluded, and Article 38 of the said Enforcement Rule provides that “a facility with a disposal capacity or recycling capacity of less than 100 tons per day among mechanical disposal facilities or recycling facilities” (Article 156) shall be “a facility with a disposal capacity or recycling capacity of less than 100 tons per day, which is compressing, pressure, strawing, crushing, crushing, breaking, cutting, melting, melting, melting, melting, melting, fueling (excluding cement

2) The instant business facility constitutes a recycling facility for crushing, crushing, and plastic wastes. According to the business plan, the daily recycling volume per day is 30 tons of SDR, 20 tons of Bi-SF, and 3 tons of waste synthetic resin, such as pellets, etc.

3) On this basis, the Defendant asserts that “the treatment capacity of the high-fuel manufacturing facility of the instant business facility shall be determined on the basis of objective recycling capacity per day, and according to a quotation (Evidence 5-3 of the Evidence A), the treatment capacity of the instant facilities shall be 5-8 tons per hour in the case of the pre-treatment facility, 4-5 tons per hour in the case of the pre-treatment facility, and 4-5 tons per hour in the case of the SRF solid fuel, and the instant business facility shall be “influent facility” in accordance with attached Table 7 of the Enforcement Rule of the Wastes Control Act, and shall be 10 tons

However, the said written estimate is not the instant business plan, but is merely a written estimate attached to the business plan submitted by the representative Nonparty to the Defendant on September 15, 2014, and it cannot be assessed on the premise of “24-hour operation” when calculating the daily recycling capacity by deeming that the instant written estimate constitutes a continuous facility falling under the type of incineration facilities.

4) It appears difficult to satisfy the requirements of 100 tons or more per day even if the daily recycling output stated in the instant business plan is all the daily recycling volume stated in the instant business plan, and no other ground exists that the objective recycling capacity of the instant business facilities is more than 100 tons per day.

D. In a case where the public interest in the environment is harmed as a ground for disposition, whether the disposition in this case is legitimate (family judgment)

1) Regardless of whether Article 157 subparags. 1 and 2 of the instant Rule can be applied, in cases where the Defendant’s grounds for disposition are deemed to be “contributing the infringement of the surrounding residents’ environmental rights due to dust and business errors and wastewater,” the instant disposition is lawful.

2) The Defendant did not state specific grounds for the instant disposition solely on the grounds for the instant disposition, stating that the instant disposition goes against subparagraphs 1 and 2 of Article 157 of the instant Rule, and submitted the data on the grounds for the instant disposition immediately after the lapse of the fourth date for pleading.

However, in full view of the following circumstances recognized by comprehensively considering the respective descriptions of the evidence Nos. 1 through 4, the instant disposition is unlawful by abusing and abusing discretion.

A) The Defendant asserts that “The instant prospective project site is located far from the ▽▽ri Village to a degree of 300 meters, and 400 meters away from the △△△ service site, and in consideration of the wind direction of the instant prospective project site, there may be damage to nearby residential areas of 300 to 400 meters in consideration of the instant prospective project site.”

However, in light of the evidence evidence No. 4’s satellite photographs, the separation distance between the instant project site and the instant ▽▽△ village reaches 300 meters in straight line, and there is forests and fields among them. The said pictures alone, submitted by the Defendant, cannot be seen at all as to whether the instant service site, which is a national highway service site, is currently operating, and the number of persons using the daily service site, etc. of the instant service site. Moreover, it is difficult to find out that the daily dust, etc. generated in the instant service facility only from the winding materials of the instant project site, has any effect on the instant service area and the rest area

B) The Plaintiff stated in the instant business plan that it was a plan for the construction of a facility located in the factory, and the Defendant did not order supplementation of the facilities, forest dust reduction facilities and equipment of the instant factory in relation to the environmental impact issues.

C) Although the Defendant asserts that “the surrounding water sources may be contaminated due to sewage and wastewater in the instant project,” according to the satellite photographs No. 4, it is difficult to see that the existence of the instant project facilities is likely to cause the contamination of the water sources merely because there is the distance between the planned area of the project and the water sources (the instant project plan has been submitted by drawings, such as septic tanks, etc. in the instant project plan). Specifically, it is not revealed that the relevant water sources exists, the scale of the water sources, the number of households using the relevant water sources, etc.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment]

Judge Sung Ho-ho (Presiding Judge) but for a door