92Gu 1567 Disposition of revocation of a discharge dues payment order

A Stock Company

Jeonju Local Governor

September 28, 1995

October 19, 1995

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The Defendant’s imposition of discharge dues of KRW 394,652,300 against the Plaintiff on April 8, 1992 is revoked.

1. Circumstances and details of the disposition;

A. The following facts are not disputed between the parties, or are recognized by comprehensively considering the whole purport of the pleadings in each of the statements in Gap evidence 38, Eul evidence 2, Eul evidence 2, 3, 5, 9-1, 2, Eul evidence 6, 8, 15, Eul evidence 13-1, 2, 3, and 4:

(1) On March 17, 1992, at around 21:00, the employees of the Jeonju Environmental Office under the Gwangju Regional Environmental Office are Class 1 places of business located in a local industrial complex designated pursuant to Article 7 of the Industrial Sites and Development Act (attached Tables 1 and 7 of the Enforcement Decree below), and they request the analysis of the final outflow water and waste water collected to the Gwangju Regional Environmental Office while guiding and inspecting the Plaintiff’s business place located in Seojin-gu Seoul Metropolitan Area B.

(2) As such, water pollutants (Article 2 subparag. 2 of the Act, Article 9 of the Enforcement Decree of the same Act, and Article 9 of the same Act) in wastewater above the 27th day of the same month are chemical oxygen demand (BOD) within the permissible emission standards (=100§¯/liter). However, chemical oxygen demand (COD) is mixed with 181.8m/liter exceeding the permissible emission standards, but chemical oxygen demand (COD) is mixed with 181.8m/liter exceeding the permissible emission standards, and the suspended solids (S) is also mixed with 700.0m/liter exceeding the permissible emission standards.

(3) Under the provisions of Articles 16 and 55 of the Water Quality Conservation Act (amended by Act No. 4536 of Dec. 8, 1992; hereinafter the same shall apply), and Article 33(2)10 and Article 33(1)6 of the same Act, the Minister of the Gwangju Regional Office ordered the Plaintiff to supplement and improve the water pollution prevention facilities (limited to preventive facilities) of the same workplace within the period of 30 days from the 30th of the month to May 2 of the same year.

(4) After that, the Plaintiff submitted an improvement plan to the head of the Gwangju Regional Office on April 6 of the same year pursuant to Article 7(1) of the Enforcement Decree of the Act and Article 29(1) of the Enforcement Decree of the Act (amended by Ordinance of the Prime Minister No. 405 of Aug. 8, 1992; hereinafter the same). According to the reasoning that the Plaintiff’s workplace exceeds the permissible emission levels as above, the Plaintiff’s biochemical treatment facilities, which adopted the biochemical treatment method that treats pollutants by the force of living microorganisms, have failed to operate the first treatment pumps of the prevention facilities at a certain time due to the Plaintiff’s failure to drive the first treatment pumps of the prevention facilities at the time of the pollution prevention facilities, so it is difficult to generate active sludge’s growth, and thus, it was difficult to see that there was a large amount of 1st 5th galculic treatment equipment, etc., other than 3th falculic treatment methods, and that it continued to be able to improve the treatment pumps in the same way.

(5) 그리고 원고는 위 개선계획서의 제출과 함께 같은 날 피고에게 법시행령 제18조 제1항, 법시행규칙 제34조의 규정에 의한 개선이행보고서를 제출하였는데, 그 내용은 원고의 사업장이 배출ㅎ용기준을 초과하는 폐수를 배출하게 된 이유로 1차 처리수펌프의 그라운드패킹상태가 약간 불량한 점을 추가하면서 원고가 위 개선계획서의 내용과 같은 조치를 취함으로써, 위 개선기간 마지막날인 같은 달 5일부터는 미생물상태가 완전히 회복되어 폐수를 배출허용기준이내로 배출하게 되었다는 취지였다.

(6) On April 8 of the same year, the head of Gwangju Regional Office confirmed the above performance status, and issued a disposition under Articles 19 and 55 of the Act and Articles 9,10, 11, 12, and 33 (2) 10 and 33 (1) 9 of the Enforcement Decree of the Act and Article 9, 10, 12, and 33 (2) 10 and 11 (2) of the Enforcement Decree of the Act, the concentration exceeding the permissible emission levels of pollutants (COD and SS), and the emission period calculated pursuant to Articles 14 (1) 1, 14 (2), and 11 (4) of the Enforcement Decree of the Act (from March 17, 1992 to April 6 of the same year), 21 days of the emission period (from 3,762 cubic meters of the total wastewater collection date) and calculated based on 486,570,490 cubic meters of the wastewater collection date.

(7) The plaintiff appealed against the plaintiff and filed an administrative appeal on August 8, 200 of the same year, and the period of 4 days from the day after March 27, 27 of the same year, when the results of the water quality inspection of paragraph (1) and (2) are revealed, to March 31 of the same year, the head of Gwangju Regional Office notified the Jeonju Environmental Office of the results of the water quality inspection and delayed to be requested to take administrative measures from the Jeonju Environmental Office, and thus, it is unreasonable to include them in the discharge period. Thus, the amount of discharge charges imposed on the plaintiff was reduced to 394,652,300 won.

(8) The former environmental office became the former regional management office and now became the former regional management office.

B. Meanwhile, it is clear under the above law that the defendant, who is the responsible manager of the Jeonju regional environmental management office, was considered to have performed the acts of the head of the Jeonju regional environmental management office and the acts related thereto in accordance with Article 2 of the Addenda of the Enforcement Decree of the Water Quality Conservation Act of May 4, 1994 and Article 14 and Article 2 of the Addenda of the Enforcement Decree of the Water Quality Conservation Act of the Presidential Decree of May 4, 1994.

2. The plaintiff's assertion

Although the Plaintiff’s preventive facilities of the foregoing workplace are biochemical treatment facilities that adopted a biochemical treatment method that treats pollutants as the force of living microorganisms, it is highly developed public law, but it can be kept a net balance in the treatment process in accordance with changes such as seasonal changes, seasonal changes, changing process of microorganisms, and net temperature, load, etc.

As a result of the analysis of the causes of the plaintiff's environmental manager, etc., when a partial expansion phenomenon occurred from the final bend of 15:00 on March 17, 1992, which is the date of collecting wastewater, the above phenomenon is determined to have caused the slurg's wound caused by the rapid change in the water flow of a micro-organism on the ground where the active nature of micro-organism is proneed, while the season change from winter to spring, and the rapid change in the water flow from spring, and the slurg's wound caused by the slurg's shock, which occurred from the slurg's shock, was determined to have been the cause. At around 19:00 on the same day, the wastewater discharge should not exceed the permissible discharge level of 19:0 on the same day, and the wastewater discharge should not exceed the permissible discharge level of 20:30 hours after the rapid change in the water flow.

However, the defendant requires the plaintiff to submit improvement plans and improvement performance reports prescribed in the Act, the Enforcement Decree, and the Enforcement Rule of the Act to the plaintiff on the basis of the results of the analysis of the above A and (2). Thus, the plaintiff shall prepare improvement plans under the pre-improvement of the above matters that have already been improved without being able to do so, and prepare and submit the improvement performance report different from the above facts to the defendant on the same day.

In addition, the examination results under paragraph (2) above are too far away from the quality of ordinary wastewater in the Plaintiff’s workplace, and it is doubtful that the material for testing is wastewater collected from the Plaintiff’s workplace, and that the chemical oxygen demand (COD) quantity revealed as a result of the examination is less than that of chemical oxygen demand (COD) and suspended solids (S). In light of the above, the instant disposition that is based on the inspection method is unlawful, since there is no credibility in the examination result.

Even if the result of the above examination is correct, the time when the Plaintiff discharges wastewater exceeding the permissible emission levels is merely 8 hours and 30 minutes from March 17, 1992 to 23:30,00, and on this basis, if the Plaintiff calculates emission charges, it would be KRW 8,545,510, and the part of the disposition in this case exceeding the permissible emission levels is unlawful.

3. Judgment of party members

A. As to the part of the plaintiff's above assertion that the above A, (2), and the part of the plaintiff's assertion that the plaintiff's above part of the plaintiff's claim is presumed to be in a situation where the discharge facilities or preventive facilities of the plaintiff's workplace normally operated on the date of collecting the above wastewater and the improvement or replacement of the above wastewater (Article 16 of the Act) is unnecessary, or there is no evidence to acknowledge it. Rather, since the plaintiff's own person was in need of improvement because the prevention facilities of the plaintiff's workplace are not operated normally on the date of collecting the above wastewater, it seems that the water quality of the day is considerably different from the water quality of the day when normal wastewater is discharged from ordinary proportion between the quality of ordinary wastewater or pollutants at the plaintiff's workplace, without any special circumstance, it cannot be rejected (see Supreme Court Decision 93Nu814, Jul. 16, 1993; 93Nu814, Feb. 16, 1993).

B. Furthermore, as to the remaining alleged portion of the Plaintiff, there was a temporary error in the process of treating the above wastewater on the day of collecting the wastewater, and in sum, discharging any wastewater mixed with pollutants exceeding the permissible emission levels. While the Plaintiff’s improvement measures recover 8 hours to 300,00 and thereafter discharging any wastewater mixed with pollutants within the permissible emission levels, the Defendant recognized the Defendant’s disposal of the instant wastewater by erroneously recognizing the discharge period of wastewater mixed with pollutants exceeding the permissible emission levels based on the Plaintiff’s improvement plan and a report on improvement implementation, etc. prepared falsely.

In this context, Article 19 of the Act provides that emission dues shall be imposed based on the calculation of the type, emission period, emission quantity, etc. of pollutants discharged in excess of the permissible emission levels under the conditions as prescribed by the Presidential Decree. Accordingly, Article 11 of the Enforcement Decree of the other Act provides that the emission period shall be from the beginning date of the emission to the end date of the improvement order under Article 16 of the Act (the date of collecting pollutants for the inspection of whether the emission exceeded the permissible emission levels where the date of the commencement of the emission is unknown) to the end date of the first day of the emission order in the same case as in this case where the operator fails to normally operate emission facilities and preventive facilities in violation of the obligation of normal operation of emission facilities and preventive facilities (Article 15(1) of the Act), and Article 14(1) and (2) of the Enforcement Decree of the other Act provides that the first day of the first day of the emission order shall be included in the completion date of the order where the order is completed within the scheduled date of the implementation of the above improvement order.

However, Article 14(2) of the Enforcement Decree of the Act applies only to a business operator who has complied with an order of improvement after the order of improvement is issued, and when the business operator complies with the order of improvement after the order of improvement, only the date of completion of improvement shall be the emission period until the date of completion of improvement by reporting the execution of the order of improvement in accordance with the above provision. However, where the business operator has completed the improvement work in advance in accordance with the order of improvement that is under his own prior to the order of improvement, it shall be deemed the emission period until the date of completion of the work (see Supreme Court

However, in the case of this case where the business operator reported the implementation of the order after receiving the order of improvement, it shall be deemed that the business operator himself/herself has to assert and prove that he/she completed the improvement work in accordance with the order of improvement on his/her own prior to receiving the order of improvement. As such, this point of view is sufficient to acknowledge it in light of the following items: (a) evidence Nos. 16-4, No. 18-2, and No. 18-3, and witness evidence Nos. 6, No. 36, No. 38, No. 6, No. 9-1, and No. 2; and (b) evidence No. 13-3 and No. 4, which correspond to the plaintiff's assertion that he/she had taken the measures as stated in the above performance report on the date of collecting wastewater before receiving the order of improvement from the defendant.

Therefore, by applying Article 11(1)2 and (4) of the Enforcement Decree, and Article 14(1)1 and (2) of the same Act, the Defendant’s deeming the discharge period of wastewater mixed with pollutants exceeding the permissible emission levels as the date of collecting the wastewater to the date of reporting the implementation of the order is lawful, and the Plaintiff’s remaining arguments cannot be accepted.

In addition, even though the concentration of pollutants exceeding the permissible emission levels of the Plaintiff’s workplace was changed as a result of the inspection of pollution levels conducted by a person who vicariously conducts measurement of pollutants in accordance with Article 44 of the Act (hereinafter “measurement agent”), among the above acknowledged emission periods, Article 14(1)2 and Article 14(3) of the Enforcement Decree of the same Act recognizes that the emission status of pollutants differs from the initial measurement time after the imposition of dues, if the emission quantity of pollutants differs from the initial measurement time, the dues shall be adjusted, and it shall be calculated based on the emission quantity again only for the period after the re-inspection date. Thus, the fact that the imposing authority is not the result of the inspection conducted by the relevant public official under Article 49 of the Act, but the fact that there was another measurement as a result of the inspection conducted by the measuring agent, which is not the result of the inspection conducted by the said public official, does not constitute the above reasons for adjustment of pollution charges. The imposing authority cannot be deemed to fall under the reasons for adjustment of pollution charges, or the authority to impose such other measurement based on the same materials.

4. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is dismissed and the costs of lawsuit are assessed against the losing party and it is so decided as per Disposition.

October 19, 1995

Judges Macheon-ho

Judges Lee Soo-soo

Judges Suk-woo