[1] The case holding that the residents in the area subject to environmental impact assessment have standing to sue to seek revocation of the determination and public notice of the location of waste disposal facilities (e.g., incineration facilities)

[2] The case holding that the selection of a site for waste disposal facilities was unlawful without any specific and reasonable ground to omit the feasibility study of a site location candidate under Article 9 (4) of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs, notwithstanding the absence of specific and reasonable grounds

[3] Whether an agency installing waste disposal facilities is bound by the determination of the location selection committee (affirmative) and the scope of the deadline for such determination

[1] The case holding that the above residents have standing to seek revocation of the determination and public notice of the location of waste disposal facilities (e.g., incineration facilities) on the grounds that the environmental benefits held by the residents in the area subject to environmental impact assessment related to the installation of waste disposal facilities, which are facilities subject to environmental impact assessment, should be deemed to be direct and specific interests individually protected

[2] In light of the legislative intent of Article 9(4) main text of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7196 of Feb. 9, 2004), the committee for selection of waste disposal facilities shall undergo an investigation into the feasibility of the site location by a specialized research institute in determining the site location selection in accordance with the legislative intent that the committee for selection of waste disposal facilities should undergo an investigation into the feasibility of the site location location by the specialized research institute, notwithstanding the absence of specific and reasonable grounds to omit an investigation into the site location appropriateness, the proviso of Article 9(4) of the same Act was added to the site location location without any reason, and then selected as the site location without granting local residents an opportunity to make public inspection and present opinions even thereafter, it was illegal because it did not

[3] The location selection committee under Article 9 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (amended by Act No. 7196 of Feb. 9, 2004) is a deliberative organ on the location selection of waste disposal facilities, and the agency installing waste disposal facilities is bound by the determination of the location selection committee, and the contents of the location selection decision include not only the location of location but also the area.

[1] Articles 9, 10, and 17 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7196 of Feb. 9, 2004), Article 4 (1) 14 of the Impact Assessment Act on Environment, Traffic, Disasters, etc., and Article 12 of the Administrative Litigation Act / [2] Articles 9 and 10 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7196 of Feb. 9, 2004), Article 10 of the Enforcement Decree of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs / [3] Article 9 of the former Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to their Environs (amended by Act No. 7196 of Feb. 9, 200

Plaintiff et al. (Attorney Jeong-nam et al., Counsel for the plaintiff-appellant)

Port Market (Attorney Kim Jong-sik et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 2003Guhap8274 delivered on July 2, 2004

Daegu High Court Decision 2004Nu1225 delivered on November 5, 2004

Supreme Court Decision 2004Du14229 Delivered on May 12, 2005

December 16, 2005

1. Revocation of the first instance judgment.

2. The Defendant’s decision on and public notice of the location of waste disposal facilities (e.g., incineration facilities) rendered on September 8, 2003 shall be revoked.

3. The total costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking account of the whole purport of the pleadings in each entry in Gap evidence 1, 2, 3, 15-1 through 7, and Eul evidence 1 through 21:

A. In relation to the selection of the location of the general waste disposal facilities generated at Port on October 7, 1996, the Defendant decided and publicly announced the following contents pursuant to Article 9 of the Act on Promotion of Installation of Waste Disposal Facilities and Assistance, etc. to Their Environs (hereinafter “Waste Promotion Act”), and established a location selection committee composed of eight members on November 27, 1996 (in addition, 11 members were added).

(i)the kind and quantity of the paint subject to disposal;

- Ordinary wastes: 461t/Date

(2) The required size of the waste disposal facility in the area where the waste subject to disposal is discharged;

(a) Waste incineration facilities: 200t/day x 2

(b) Waste landfill facility: not less than 200,000§³ of the created area;

B. Around December 1995, the Defendant: (a) selected six areas, such as Maguri, Plue Dog, Plue Dog, Blue Dog, Blue Dog, Blue Dog, Blue Dog Dog Dog Dog Dog Dog, and Plue 4 Corporation, as a candidate for the installation of waste incineration facilities; (b) requested Pluco Development Co., Ltd. to conduct a feasibility study on site location; (c) on November 8, 199, as the announcement No. 597 on November 8, 199, the result of the feasibility study on site location was disclosed to the residents of Pluco at port; and (d) on May 22, 2000 through the resolution of the Location Selection Committee, publicly notified the location determination of waste incineration facility installation plan as follows:

(a) Project name: Installation of general waste incineration facilities at port;

(b) Incineration capacity: 200 tons/day ¡¿ one machine;

(iii)the location and area;

- Location: South-gu Maok-ri, Nam-gu, Pyeong-gu (in the area planned to be created by the Corporation);

- Area: 50,000 square meters (15,000 square meters)

C. On March 5, 2001, the Defendant attempted to implement the installation project by phase, such as requesting environmental impact assessment services in relation to the construction of waste incineration facilities in the land scheduled for the construction project, but the land use plan of the land scheduled for the construction project was modified, and the petition filed by neighboring residents was suspended on September 5 of the same year.

D. On September 24, 2002, the Posib Industry Committee proposed to add the site of waste disposal facilities to a new candidate site related to the location of waste incineration facilities at the port when the site of the waste disposal facilities of the Dongyang-ro Co., Ltd. (hereinafter “Dongyang-dong”) located in the south-gu Mayang-gu, 200-1 at the port of port when the waste disposal business entity is a waste disposal business entity.

E. On April 29, 2003, the Location Selection Committee held the sixth Session on the agenda of adding a candidate site to the same am site and the location selection of waste incineration facilities. At the morning conference, it decided to add the same am site to a new candidate site in addition to the existing six candidates, but to omit the feasibility study. At the P.M. conference, it continued to discuss the decision on the location selection of waste incineration stations and closed the next session.

However, at the time of the above A.M. meeting, the Chairperson and the executive secretary agreed to omit the feasibility study of the site without debate about the specific grounds that the location study may be omitted pursuant to the proviso of Article 9(4) of the Waste Promotion Act and the existing waste disposal facilities site, and the candidate that was presented by the Committee for T.S. Industry at the Posting Session (as stated in the evidence No. 6 attached thereto, the document No. 6 attached thereto was distributed to the site selection committee members and the document No. 20 attached thereto) and to omit the feasibility study of the site without debate about the detailed grounds that the location study may be omitted despite the fact that there was a point of procedural problems from some committee members, and only after the conference was completed, the site selection committee visited the Dongyangco site.

F. At the seventh meeting held on May 9, 2003, the Location Selection Committee, after receiving from the executive secretary the report that the site for the 4th industrial complex is suitable for the building site for the same eyang-culco site among the eculco site for the same eculco site (the comparison between the creation site for the new industrial complex and the eculco site for the same eculco site among the documents attached to the document attached to the document attached to the document attached to the document No. 7 of this No. 7, there is little debate about the above two candidates. However, after undergoing a debate on the additional purchase of the site for some members' opinion that the site area of 3,500 square meters ("the comparison of the site area of the incineration site in the document attached to the document No. 7 of this No. 1) may be narrow, it decided to recommend to review the additional purchase of 1,000 square meters of the site for the same eculco site.

G. On July 15, 2003, the Sinpo City completed a cadastral survey on the Dongyang-si site, and the designation of the site for waste disposal facilities (retirement facilities) was changed by Article 2003-512 of the Waste Promotion Act as of September 8, 2009 of the same year under the notification at the time of Port of Port of Port of Port of this case, the previous notification No. 2000-202 was abolished and the notification of the location of waste disposal facilities (retirement facilities) was made pursuant to Article 10 of the Waste Promotion Act. However, with respect to the site area, the notification was made as 16,090 square meters (4,800 square meters) as recommended by the 7th meeting of the Location Selection Committee, taking into account the 1,000 square meters (4,800 square meters) decided at the 7th meeting of the Location Selection Committee.

(a) Kinds of waste disposal facilities: Waste incineration facilities; and

(2) Scale: 200t/Date

(iii)the location and area;

-Location: Rool-ri, 200-1 and 2 parcels in the south-gu Pohang-gu, Nam-gu.

- Area: 16,090 square meters

(d) An agency installing waste disposal facilities: At port; and

(5) The disposal area: the area prior to the port of call; and

(6) Wastes subject to disposal: inflammable domestic wastes; and

2. Determination on this safety defense

A. The defendant's assertion

The defendant asserts that the affected adjacent areas under the provisions of the Waste Disposal Promotion Act are within 300 meters from the boundary of the site of the waste incineration facilities, and there is no standing to sue against the determination and public notice of the location of waste disposal facilities, and the plaintiffs do not reside in an area within 300 meters from the boundary of the site of the waste incineration facilities of this case, and they do not have standing to sue against the plaintiffs.

(b) Markets:

According to the relevant provisions of the Enforcement Decree of the Waste Assessment Act, the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of the Waste Assessment Act”), the Environmental Impact Assessment Act (hereinafter “Environmental Impact Assessment Act”), and the Enforcement Decree of the same Act (hereinafter “Enforcement Decree of the Environmental Impact Assessment Act”), an incineration facility with a daily treatment capacity of at least 100 tons among waste disposal facilities constitutes an environmental impact assessment project subject to environmental impact assessment, and when the Minister of Environment approves a plan for installation of the waste disposal facilities, he/she must reflect the contents of the environmental impact assessment in the project plan. Thus, not only the Waste Promotion Act but also the Environmental Impact Assessment Act and the Environmental Impact Assessment Act shall be deemed as an Act and subordinate statutes, which directly and indirectly affect the above waste disposal facility installation project. The purport of each of the above provisions for environmental impact assessment is to protect individual interests that can live in a pleasant environment without an environmental infringement limit, compared with the installation of the above waste disposal facilities. Thus, if the above interests of residents related to the installation of the waste disposal facilities are directly and indirectly infringed or likely to be infringed on by the residents' interests in the installation of the waste disposal facilities.

As to this case, comprehensively taking account of the overall purport of arguments in the statement No. 15-1 through No. 7 and No. 19, the instant waste incineration facilities are deemed to have a daily disposal capacity of 200 meters and fall under the facilities subject to environmental impact assessment prescribed in the Environmental Impact Assessment Act; on September 25, 2003, a brick engineering corporation established an area where the environmental impact is anticipated due to the installation and operation of the above waste incineration facilities from September 25, 2003 to conduct environmental impact assessment; on the assessment of the impact of air and malodor on the living environment, five km from the site of the waste incineration facilities; on the assessment of noise and vibration, the area subject to environmental impact assessment 2 km from the half-rash; on the other hand, the Plaintiffs’ residential area is located within the zone subject to environmental impact assessment 1.2 km from the site of the above environmental impact assessment facilities; on the other hand, the Plaintiffs’ specific interest in the installation of the above facilities is not directly or indirectly protected by the general public, and thus, the Plaintiffs’ interests are not directly protected and publicly protected.

3. Whether the disposition is lawful;

A. The plaintiffs' assertion

The Plaintiffs asserted that the instant disposition was unlawful on the grounds delineated below.

(1) Absence of procedures for site feasibility study

Despite the fact that there is no circumstance to omit the feasibility study of site location, the Location Selection Committee added the same Yang Corco site to the candidate site, and conducted the site selection procedure without examining the feasibility of site location, and selected the same Yang Corco site as the site for waste incineration facilities.

(2) Determination of the site area differently from the result of the Location Selection Committee

The Location Selection Committee, as a deliberative body for the location and size of waste incineration facilities, decided the site area at 3,500 square meters at the time of the location selection, and the defendant determined the site area at 4,800 square meters by adding 1,300 square meters to 1,300 square meters without a new resolution by the Location Selection Committee.

(3) lack of locational feasibility of the building site in East U.S.

The East Yang Corco site is an existing waste disposal facility and has the possibility that the adverse impact on the environment may be accumulated, and it is inappropriate to be a site for waste incineration facilities due to the fact that the former waste disposal business entity has caused the problem by illegally creating a landfill in excess of the permitted area.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) As to the non-existence of the procedure for site feasibility study

Article 9(2), 3, and (4) of the Waste Promotion Act provides that an agency installing waste disposal facilities, such as the head of a local government, shall establish a site selection committee after the public announcement of the site selection plan, and have the site selection committee select the site for waste disposal facilities. In such cases, where the site selection committee intends to select the site, it shall first have a specialized research institute investigate the feasibility of the site candidate, and shall take into account the results of the investigation process and results of the site feasibility study conducted by the specialized research institute. Article 10 of the Enforcement Decree of the Waste Promotion Act provides that the site selection committee shall establish a site feasibility study plan in consultation with the specialized research institute and notify it to the agency installing the waste disposal facilities, and shall notify it to the agency installing the waste disposal facilities so that local residents may make it available for public inspection for at least 20 days. In such cases, the agency installing the waste disposal facilities shall publish the summary of the notified research results in the Official Gazette or the public bulletin of the local government, and where local residents have opinions on the site contents publicly available or public announcement, the committee may submit their opinions.

The aforementioned relevant statutes stipulate that prior to the selection of a site location selection committee, the procedures for public inspection and announcement of the results of the feasibility study or the procedures for submission of opinions by local residents shall be followed. The purpose of the aforementioned relevant statutes is to prevent unfair infringement on the rights of the people by reflecting the intentions of many interested parties, such as local residents, etc. and by rationally adjusting their mutual interests, and to ensure democratization and trust in administration (Supreme Court Decision 2001Du8469 Decided May 28, 2002).

In this case, as seen in the above facts, the 6th meeting of the Location Selection Committee did not take a procedure for the feasibility study, public inspection, and public announcement of the location of the waste incineration facility, and the 2nd meeting of the 6th meeting of the 6th meeting of the 6th 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 4th 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3th 2nd 2nd 2nd 3th 2nd 2nd 2nd 2nd 2nd 2nd 4th 2nd 2nd 4th 2nd 2nd 2nd 2nd 2nd 3th 2nd 2nd 2nd 2nd 4th 2nd 2nd 2nd 2nd 2nd 3nd 2nd 3nd 2nd 2nd 2nd 2nd 2nd 3.

(2) As to the assertion of determining the site area different from the result of the Location Selection Committee

The location selection committee prescribed in Article 9 of the Waste Promotion Act is a deliberative body on the location selection of waste disposal facilities, and the agency installing waste disposal facilities is bound by the decision of the location selection committee, and the contents of the location selection decision include not only the location of the location but also the area.

In this case, as seen in the foregoing facts, at the seventh meeting of the Location Selection Committee, the site area was 3,500 square meters for the location selection of waste incineration facilities. However, even though the Defendant merely intended to review the purchase of approximately 1,00 square meters as a recommendation, it was about 1,367 square meters to complete a cadastral survey by adding approximately 1,367 square meters to the site area, and determined and announced as the site for the waste incineration facilities in this case. The instant disposition was also unlawful because the procedure for the resolution of the Location Selection Committee for the additional site area was lacking.

(3) Therefore, without examining the remaining arguments of the plaintiffs, the defendant's disposition of this case should be revoked as it is unlawful due to the above procedural defects.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance, which has different conclusions, is unfair, so it is revoked, and it is so decided as per Disposition with the cancellation of the disposition of this case.

Judges Kim Jong-chul (Presiding Judge)