Nowon-gu, Seoul Special Metropolitan City (Attorney Jeong-nam et al., Counsel for the defendant-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Park Si-si et al., Counsel for the plaintiff-appellant)

November 26, 2014

Seoul Central District Court Decision 2013Gahap536293 Decided June 12, 2014

1. Of the judgment of the court of first instance, the part against the plaintiff ordering payment shall be revoked.

The defendant shall pay to the plaintiff the amount of KRW 143,264,403 as well as 5% per annum from September 4, 2013 to December 17, 2014, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 482,348,010 won with 20% interest per annum from the day following the delivery of the complaint of this case to the day of complete payment.

1. Facts of recognition;

(a) Occurrence of radiation contamination and removal of the Plaintiff's road packaging;

1) Around November 1, 2011, the Seoul Nowon-gu Seoul Nowon-gu Seoul Special Metropolitan City Nowon-gu Fire Station reported that the radiation level was measured. The radiation contamination level was found at the end of the winter-dong roads as a result of the measurement of the Nowon-gu Fire Station and the front day of the △△△△△, which exceeded the average air radiation level of 10 times, and the measurement value surveyed by the Institute of Nuclear Sciences was higher than that.

2) 원자력안전위원회는 2011. 11. 2. 원자력안전기술원으로 하여금 위 도로 일대에 대한 정밀조사를 실시하게 한 후 다음 날인 2011. 11. 3. 조사결과를 발표하였는데, 그 내용은 “해당 지역 26개소의 지표 1m 높이에서 정밀측정한 결과 최고 방사선 준위가 주1) 1.4μ㏜/h 였다. 이는 해당 도로에 매일 하루 1시간씩 1년간 서 있어도 0.5m㏜ 정도로서, 일반인의 연간 허용선량 1m㏜의 50%에 불과하여 원자력안전법의 허용기준을 넘지 않는 범위이다. 인근 주민이 해당 도로를 일상적으로 사용해도 안전에 지장이 없는 것으로 평가된다. 방사성물질의 농도나 발생 원인을 조사 중에 있다”는 것이었다.

3) On November 3, 201, the Plaintiff, a road management agency of the said road, announced that he would remove the ice containers of the said road within one to two days, and the employees belonging to the Korea Atomic Energy Safety Institute requested an interview to the head of the Gu, a representative of the Plaintiff. At the time, the Plaintiff requested that the removal work should be carried out on the gold day. The Plaintiff requested that the cost of disposal of wastes be borne by the Korea Atomic Energy Safety Institute, but the said cost of disposal should be borne by the local government. There is no safety hindrance for the general public to use the instant road. The removal of the ice containers of the instant road without the result of the precision analysis, which might lead to a problem of waste disposal. The results of the precision analysis are as follows.

4) On November 4, 2011, the Plaintiff removed asphalts and performed road packing works around the monthly-dong, Nowon-gu, Seoul, and the △△△ High School (hereinafter collectively referred to as the “instant road”). On November 4, 201, the Plaintiff completed the said construction on November 11 of the same month.

5) 원자력안전위원회는 2011. 11. 8. 원자력안전기술원의 정밀조사 및 시료분석 결과를 발표하였는데, 그 내용은 “이 사건 도로를 이용하는 지역 주민이 받을 수 있는 연간 방사선량은 0.51∼0.69m㏜로서, 원자력안전법에서 정한 일반인의 연간 허용선량 1m㏜ 미만으로 안전에는 문제가 없다. 위 아스팔트에 혼입된 방사성 동위원소의 핵종은 세슘(Cs-137)이고, 아스콘에 함유된 방사성 물질의 농도는 주3) 1.82∼35.4Bq/g 이다. 오염 발생처를 확인할 수 없으나 폐아스콘이 재활용되고 아스콘 제조시 철강회사의 주4) 슬래그 를 활용하는 점을 고려할 때, 방사성물질이 포함된 철스크랩이 부적절하게 유입·용융되어 오염된 슬래그가 인입된 것으로 추정된다”는 것이었다. 한편 세슘(Cs-137) 방사성 동위원소로 오염된 폐기물의 농도가 10Bq/g을 초과하면 원자력안전법 제2조 제18호 의 ‘방사성폐기물’에 해당한다.

6) On November 14, 201, the Plaintiff requested the Nowon Police Station to investigate the company presumed to have supplied asphalts at the time of the construction of the instant road. However, on December 22, 2011, the Nowon Police Station sent a reply to the effect that the investigation is completed as it cannot be readily concluded as a provider of causes for mixture of radioactive substances, since the aforementioned company discontinued its business before ten years, and relevant documents were discarded.

(b) Results of meetings of the relevant agencies and details of follow-up measures;

1) From November 29, 201, the conference was held by the Nuclear Safety and Security Commission as the main place of the Prime Minister’s Social Integration Policy Office from November 29, 201 in order to treat asphalts, etc. (hereinafter “road wastes”), which are packing materials for the instant road, between the Ministry of Knowledge Economy, the Ministry of Education, the Ministry of Public Administration and Security, the Ministry of Public Administration and Security, and the Plaintiff’s respective officials. The above conference discussed the tasks of selecting road wastes as radioactive wastes and industrial wastes, and the tasks of transferring the selective radioactive wastes into the racing radioactive waste disposal site

2) At the third conference of related agencies held on December 15, 2011, the expenses for the management of road wastes were basically borne by the central government and local governments to bear the following expenses: ① Moving road wastes to the Hanwon Training Institute within Nowon-gu in Seoul Special Metropolitan City to the commencement of radioactive waste screening work; the expenses for the transfer of road wastes to the Hanwon Training Institute and the expenses for the selection work shall be borne by the local government. ② The expenses for the selection of ships (including the expenses incurred before the scaming) shall be executed by the local government first in the budget. ③ The expenses for the selection work (including the expenses incurred before the scaming) shall be basically borne by the central government and local governments, but the cost-sharing level shall be determined by subsequent consultation with related agencies, referring to the outcome of legal review.

3) From March 24, 2012 to May 14, 2012, the Plaintiff completed all the process of selecting radioactive wastes from road wastes in compliance with the guidelines set by the Nuclear Safety and Security Commission. As a result, road wastes mixed with a Pium of at least 10Bq/g of radioactivity concentration is classified as radioactive wastes, and wastes mixed with a Pium of less than 10Bq/g, as industrial wastes. The waste disposal costs incurred by the Plaintiff are KRW 954.8 million as shown in the attached Table “Expenses for treating road wastes”, and the expenses related to the selection of radioactive wastes are KRW 482,348,010 (the sum indicated in the attached Table “A evidence 1” or “A evidence 18-9”).

4) The Plaintiff was planned to pack the selected radioactive waste and then transport it to the racing radioactive waste disposal site. However, a part of the radioactive waste was transferred to the racing radioactive waste disposal site due to the opposition by the neighboring local residents, etc., and the remaining radioactive waste was installed in a public parking lot located in Nowon-gu in Seoul Special Metropolitan City, Nowon-gu and stored under the periodic management and supervision

5) On December 23, 2011, the Plaintiff allocated grants for adjustment of KRW 700,000 from Seoul Special Metropolitan City as the grants for the treatment of road wastes, and additionally disbursed KRW 250,000,000 on its own. Meanwhile, in relation to the above disposal of road wastes, the Defendant borne the packing costs for radioactive wastes, the relocation costs to the racing radioactive waste disposal site, and the storage costs at the above facilities.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 18, 25, 27 through 35, Eul evidence 1 through 3, 6 and 7 (each number is included; hereinafter the same shall apply), fact-finding reply to the Nuclear Safety and Security Commission of the first instance court, and the purport of all pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff and the Defendant agreed at the meetings of the related agencies to share the expenses incurred in the selection of radioactive wastes, and the Plaintiff spent KRW 482,348,010 for the work of screening and treating radioactive wastes in the road wastes. In light of the legislative intent and purpose of the Radioactive Waste Management Act, the Defendant is obliged to pay the Plaintiff KRW 482,348,010 for the expenses incurred in relation to radioactive wastes.

B. Defendant’s assertion

There is no agreement between the Plaintiff and the Defendant to share the cost of screening radioactive wastes. Even if the agreement was reached, the apportionment ratio was determined later, and in light of the following, the Plaintiff shall bear the cost of screening radioactive materials solely by the Plaintiff. ① The Plaintiff generated radioactive wastes by arbitrarily removing the road package that does not pose a safety problem, and thus, the Defendant is obliged to bear the cost of managing radioactive wastes pursuant to Article 14(1) of the Radioactive Waste Management Act. Even if the Plaintiff cannot be deemed a radioactive waste producer, the selection of radioactive waste is not included in radioactive waste management, and the Defendant is not obliged to bear the cost of treating radioactive wastes. ② The Plaintiff is obligated as the managing agency of the road of the road of this case to bear the cost of treating radioactive wastes. The Plaintiff was negligent in neglecting the quality control as the ordering agent of the road of the road of this case, and thus, is obliged to bear the cost of treating radioactive wastes generated on the road of this case in accordance with the principle of radioactive waste contamination under the Framework Act on Environmental Policy.

3. Determination

A. Whether to agree on the apportionment of expenses

According to the above facts of recognition, the plaintiff and the defendant agreed to share the cost of treating radioactive wastes from the process of selecting radioactive wastes at the meeting of the related agencies to the process of transferring and storing them, so the defendant is obligated to pay to the plaintiff the amount of money according to the appropriate apportionment ratio (Therefore, the defendant's dispute that did not reach such agreement cannot be accepted)

However, while the plaintiff and the defendant decided to consult at the meeting of related agencies by referring to the legal review results, etc., there is no evidence to prove that the plaintiff and the defendant agreed on the cost sharing ratio, it is reasonable to determine the cost sharing ratio between the plaintiff and the defendant by examining the management of radioactive wastes, etc., which

Meanwhile, the Defendant asserted to the effect that the Plaintiff did not have paid the cost of performing the selection of radioactive waste by using the subsidies received from Seoul Special Metropolitan City. The fact that the Plaintiff received the special subsidies of KRW 700 million from the Seoul Special Metropolitan City for the cost of waste disposal of the road in this case was recognized earlier, and the Plaintiff appropriated KRW 182,348,010, out of KRW 482,348,010, which was paid in relation to the selection of radioactive waste, as part of the above KRW 700,000. However, the said subsidies are for adjusting financial resources among autonomous Gus pursuant to Article 173 of the Local Autonomy Act, and the “Seoul Special Metropolitan City Ordinance on the Adjustment of Financial Resources of Autonomous Gu” pursuant to Article 11(1) of the “Seoul Special Metropolitan City Ordinance on the Settlement of Financial Resources” and thus, it is reasonable to view that the amount was ultimately included in the Plaintiff’s budget. Ultimately, the Plaintiff did not accept this part of the Defendant’s budget solely on the ground that the funds were the subsidies in Seoul Special Metropolitan City.

(b) elements to be considered in determining the apportionment ratio;

1) According to the above facts, the radioactive isotopes mixed in asphalt on the road of this case are Pium (Cs-137) and the concentration of radioactive materials contained in the asphalt was 1.82 through 35.4Bq/g. However, if the concentration of radioactive materials contaminated by Pium radioactive isotopes exceeds 10Bq/g, it constitutes “radioactive waste” under Article 2 subparag. 18 of the Nuclear Safety Act. Accordingly, part of the asphalt used on the road of this case was already radioactive waste, and it was not only radioactive waste by the Plaintiff’s removal. The causes or occurrence of radioactive wastes mixed in asphalt on the road of this case is not specifically identified (Therefore, the Plaintiff’s assertion that only radioactive waste was generated through the removal of the road of this case or that the Plaintiff’s radioactive waste was generated by the removal of the road of this case cannot be accepted).

2) According to the radioactive waste management Act, a radioactive waste management fund is established to secure funds necessary for radioactive waste management (Article 28), which is managed and operated by the Minister of Trade, Industry and Energy (Article 31(1). The foregoing fund is used for the purpose, such as “radioactive waste management business” (Article 30(1)1), and “radioactive waste management” refers to the transportation, storage, treatment, and disposal of radioactive waste from a person who generates radioactive waste (hereinafter “radioactive waste generators”), and all activities for such purpose (Article 2 subparag. 2). Therefore, it is reasonable to use expenses incurred in radioactive waste management from the radioactive waste management fund managed by the Defendant, barring special circumstances.

3) However, it is determined that the Plaintiff’s selective operation of radioactive wastes falls under “radioactive waste management” as prescribed by the Radioactive Waste Management Act on the following grounds. ① The coloring of radioactive waste and the activities of screening and classifying radioactive waste from other wastes can be included in the concept of “all activities to take over radioactive waste” under Article 2 subparag. 2 of the aforementioned Act. ② The Defendant has a constitutional obligation to prevent hazards caused by radioactive waste by safe and efficient management (see Article 33 of the Constitution, Article 1 of the Radioactive Waste Management Act). The selection process of radioactive waste also requires special management for the foregoing reasons. As such, the utilization of the radioactive waste management fund is consistent with the legislative intent of the radioactive Waste Management Act. (3) Although Articles 13 and 14 provide for the burden of delivery and management of radioactive waste by the radioactive waste generators, it is not possible to limit the concept of “radioactive waste management” on the grounds of this in principle prior to the inclusion of the radioactive waste generators’s primary responsibility if it is revealed. However, the Defendant’s duty not to perform the duty of legal construction and management prior to the foregoing.

4) The Plaintiff is the road management agency of the instant road. However, the removal of the packaging of the instant road by the Plaintiff is not due to the occurrence of problems in the function of the road, but due to the mixture of radioactive wastes, which may cause danger and harm to the safety of residents. As such, a special law applies only to the radioactive waste management act, and does not apply to the Road Act. Although the Plaintiff is an order for the package construction of the instant road, it is difficult to expect that the Plaintiff would have the ability to autonomously measure radioactive waste on a given container used for the said construction, unless there is any special circumstance, such as that the method of purchase was abnormal, and it cannot be readily concluded that there was any negligence during the process of examining the goods (the Plaintiff asserted that the Plaintiff purchased the instant container through the Public Procurement Service, which is an affiliated agency of the Defendant). Therefore, it cannot be deemed that the Plaintiff is liable to bear the cost under the Framework

5) However, according to the above facts, when it is found that the radiation materials detected on the road of this case are not in danger to the safety of residents, the Plaintiff had been forcibly engaged in the construction of the entire package of the road of this case, even though there was an opinion from the Korea Institute of Nuclear Safety recommending the reduction of costs through additional investigation and selective removal. Furthermore, in full view of the purport of the entire pleadings, the Plaintiff received a report to the same effect on February 2, 2012 on the back side of the road of this case in neighboring areas of the road of this case, and carried out the construction of additional removal of road packages. In this case, at the time of the first removal, the Plaintiff generated waste of 0.26 tons per square meter at the time of the second removal, while at the time of the second removal conducted by the Defendant (the Plaintiff asserted that the selective removal was impossible in the case of the road of this case, but there is insufficient evidence to acknowledge the same merely with the statement in subparagraph 3 of this paragraph).

6) Meanwhile, the Defendant has already realized a significant portion of the intent of the initial agreement on the cost-bearing, as it bears the radioactive waste packing cost, the relocation cost to the racing radioactive waste disposal site, and the storage cost in the above facilities, other than the selective work.

C. The reasonable apportionment ratio and the defendant's duty to pay expenses

Considering the above circumstances, it is reasonable to 30% of the total expenditure cost to be borne by the Defendant.

Meanwhile, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 1 through 18, No. 7, and No. 477,548,010 won remaining after the Plaintiff’s 482,348,010 won out of 482,348,010 won with respect to the selection of radioactive waste, excluding KRW 4.8 million in the name of the Resident Monitoring Group, for the selection of radioactive waste, for the selection of radioactive waste, for the selection of radioactive waste, and for the selection of radioactive waste as well as for the selection of radioactive waste, it is difficult to recognize the cost of 4.8 million won in the Resident Monitoring Group as the cost of radioactive waste directly spent for the selection of radioactive waste in light of the name thereof, even if there was no evidence to acknowledge the disbursement

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated by the rate of 143,264,403 won (=47,548,010 won x 30%) and 5% per annum as prescribed by the Civil Act from September 4, 2013 to December 17, 2014, the date following the delivery date of the complaint in this case, which is the date of the decision in this case, to the extent that the Defendant claims against the existence or scope of the obligation, and 20% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above scope of recognition and the remainder shall be dismissed as there is no ground. Since the judgment of the court of first instance is unfair with different conclusions, part of the plaintiff's appeal shall be accepted, and the part against the plaintiff ordering payment as above in the judgment of the court of first instance shall be revoked and the payment of the above money shall be ordered to the defendant, and the remaining appeal of the plaintiff

[Attachment]

Judges Kim Yong-seok (Presiding Judge)

주1) 시간당 마이크로시버트. 시버트(Sv)는 방사성물질에서 나오는 방사선이 인체에 영향을 미치는 정도로서, 1Sv=1,000mSv(밀리시버트)이고 1mSv=1,000μSv(마이크로시버트)이다.

Note 2) The word “ASCON” and “SCO concrete” are strawing.

Note 3) becquerels per gram. Becquerels (Bq) are international standard units indicating whether radioactive collapses per beginning on several occasions. The 1Bq means the strength of radiation emitted from the collapse of one original nuclear source at the beginning.

4) When melting tin in slag. Lighting, pharmaceutical products, metal acids, etc. are destroyed on or left with iron scrap.