Constitutional Court Rules Cost Recovery for Waste Disposal Without Prior Orders is Constitutional

The Constitutional Court has ruled that a legal provision allowing local administrative authorities to charge costs after executing waste disposal without prior orders is constitutional when there is a serious risk of harm from waste.

In a unanimous decision regarding Article 49, Section 2, Clause 3 of the Waste Management Act, the court upheld the law.

From February 2011 to September 2015, 22 companies, including Company A, entrusted the disposal of waste generated during their manufacturing processes to Company B. Company B created fill material from the entrusted waste and buried it in a waste mountain in Iksan, North Jeolla Province, leading to environmental pollution as leachate flowed into nearby rivers, causing mass fish deaths.

In response, the mayor of Iksan ordered the companies to pay for the costs incurred from May to July 2021 for the removal and covering of the waste based on Article 49, Section 2, Clause 3 of the Waste Management Act. Company A and others filed an administrative lawsuit seeking to cancel the payment order and requested a constitutional review of the relevant provisions. However, their requests were dismissed by the court, prompting them to file a constitutional complaint.

Article 49, Section 2, Clause 3 of the Waste Management Act states that if there is an urgent need to carry out all or part of the measures outlined in a command due to serious risks to residents' health or the surrounding environment from leachate leaks or fires, the enforcement agency may proceed without issuing a command. In such cases, the agency can collect costs from the liable parties under the Administrative Enforcement Act.

Article 48 of the same law stipulates that the Minister of Climate, Energy and Environment, governors, or mayors can issue compliance orders to those responsible for improperly disposed waste, specifying a timeframe for necessary actions such as changing disposal methods or halting waste processing.

The court stated, "It is difficult to view the application of the emergency provision to waste generators who entrusted waste disposal before the implementation of this emergency provision as imposing an unreasonable burden."

The court further explained, "The emergency provision is limited to cases where there is a serious risk to residents' health or the surrounding environment due to leachate leaks or fires, and it allows for partial enforcement without a command. Additionally, waste generators can avoid enforcement and cost recovery by removing waste themselves before serious harm occurs to residents' health or the environment."

The court emphasized that issuing compliance orders and granting time for compliance in cases of leachate leaks or fires could lead to greater harm and complicate waste disposal. It highlighted the significant public interest in swiftly removing waste to protect residents' health and maintain a pleasant living environment, which outweighs the interests of waste generators.

This decision marks the first ruling by the Constitutional Court on the constitutionality of the administrative enforcement provisions established under Article 49, Section 2 of the Waste Management Act, which was enacted on November 26, 2019.

A court official stated, "The emergency provision was established to allow for enforcement without prior orders to minimize environmental pollution and health risks. The Constitutional Court determined that this provision does not violate the principles of non-retroactivity or protection of legitimate expectations, and it does not infringe on the property rights of waste generators."