2012.02.03

2011 (Gyo-Hi) 18

Minshu Vol. 66, No. 2

Judgment concerning whether or not a notice under Article 3, paragraph (2) of the Soil Contamination Countermeasures Act is regarded as an administrative disposition against which an action for judicial review may be filed

Case to seek revocation of a disposition obligating report of investigation of the situation of soil contamination under the Soil Contamination Countermeasures Act

Judgment of the Second Petty Bench, dismissed

Sapporo High Court, Judgment of October 12, 2010

A notice under Article 3, paragraph (2) of the Soil Contamination Countermeasures Act is regarded as an administrative disposition against which an action for judicial review may be filed.

Article 3, paragraphs (1) through (3) of the Soil Contamination Countermeasures Act, Article 1, paragraph (2), item (ii) and Article 13 of the Ordinance for Enforcement of the Soil Contamination Countermeasures Act (prior to the revision by Ordinance of the Ministry of the Environment No. 1 of 2010), and Article 3, paragraphs (1) and (2) of the Administrative Case Litigation Act.

Article 3 of the Soil Contamination Countermeasures Act
(1) Any person who is the owner, manager, or occupier (hereinafter referred to as the "Owner, etc.") of the site of a plant or workplace pertaining to a Specified Facility (hereinafter referring to a Specified Facility provided in paragraph (2) of Article 2 of the Water Pollution Control Act (Act No. 138 of 1970) (referred to as "Specified Facility" in the following paragraph) and in which any of the substances listed in item (i) of paragraph (2) of the said Article (limited to Designated Hazardous Substances), the use of which has been abolished, and who has installed the Specified Facility or has received a notification by the prefectural governor pursuant to the following paragraph, shall have a person designated by the Minister of Environment conduct an investigation of the situation of contamination of the soil of the land by Designated Hazardous Substances in the manner provided in the Ordinance of the Ministry of the Environment, and shall report its results to the governor. However, the forgoing requirement shall not apply to any person who has received confirmation by the governor, as provided in the Ordinance of the Ministry of the Environment, that there are no threats on the said site for its scheduled use that no harmful effects on human health will be caused by the soil contamination by Designated Hazardous Substances.
(2)　A prefectural governor who receives notification of the abolishment of the use of a Specified Facility (limited to ones using hazardous substances) under Article 10 of the Water Pollution Control Act, or who discovers such abolishment, shall notify the Owner, etc. of the site, if any, other than the person who has installed such Specified Facility using hazardous substances, in accordance with the Ordinance of the Ministry of the Environment, of the abolishment and any other information prescribed in the Ordinance of the Ministry of the Environment.
(3)　The prefectural governor may order a person, provided in the preceding paragraph (1), who fails to make a report or who makes a false report, to make or correct the report, pursuant to the provisions of the Cabinet Order.

Ordinance for Enforcement of the Soil Contamination Countermeasures Act (prior to the revision by Ordinance of the Ministry of the Environment No. 1 of 2010)
(Investigation of Land Used as a Site for a Plant or Workplace for an Abolished Specified Facility Using Hazardous Substances)
Article 1 (2) The report set forth in the main clause of Article 3, paragraph (1) of the Act shall be made within 120 days from the days specified in the following items for the categories of cases respectively set forth in those items; provided, however, that the prefectural governor (in the case of a city as prescribed in Article 10 of the Order, the mayor of said city; the same shall apply hereinafter) may, upon application by the Owner, etc. (meaning the Owner, etc. as prescribed in the main clause of Article 3, paragraph (1) of the Act; the same shall apply hereinafter), extend the time limit when he/she finds special circumstances preventing the Owner, etc. from making said report within said period:
(ii) when the Owner, etc. of said land is a person who has received the notice set forth in Article 3, paragraph (2) of the Act (excluding the case of having received the confirmation set forth in the proviso to Article 3, paragraph (1) of the Act): the day of receipt of said notice;
(Notice of Abolishment of the Use of a Specified Facility Using Hazardous Substances, etc.)
Article 13 The notice set forth in Article 3, paragraph (2) of the Act shall be given to one who was the Owner, etc. of the site at the time when the use of the facility using hazardous substances was abolished (when the fact that a person who has received transfer of rights on the site from said Owner, etc. of the site or any other person who has newly become the Owner, etc. of the site will conduct the investigation set forth in paragraph (1) of said Article has been agreed upon between said Owner, etc. of the site and said person who newly became the Owner, etc. of the site, the notice shall be given to said person who newly became the Owner, etc. of the site).

Article 3 of the Administrative Case Litigation Act
(1) The term "action for the judicial review of an administrative disposition" as used in this Act means an action to appeal against the exercise of public authority by an administrative agency.
(2) The term "action for the revocation of the original administrative disposition" as used in this Act means an action seeking the revocation of an original administrative disposition and any other act constituting the exercise of public authority by an administrative agency (excluding an administrative disposition on appeal, decision or any other act prescribed in the following paragraph; hereinafter simply referred to as an "original administrative disposition").

The final appeal is dismissed.
The appellant of final appeal shall bear the cost of the final appeal.

Reasons for petition for acceptance of final appeal argued by the appeal counsels, FURUTA, Wataru et al.
1. In this case, the appellee of final appeal is the owner of the former site of a workplace pertaining to a specified facility using hazardous substances as prescribed in Article 3, paragraph (1) of the Soil Contamination Countermeasures Act (hereinafter referred to as the "Act") and, in line with the abolishment of the use of said facility, she has received a notice under paragraph (2) of said Article from the Mayor of Asahikawa City, who performs the affairs under the authority of a governor as provided by the Act, advising her to conduct an investigation of the situation of contamination of the soil of the above-mentioned site and report on its results. Against this background, the appellee seeks revocation of the above-mentioned notice on the basis that the notice is regarded as an administrative disposition against which an action for judicial review may be filed. The appeal counsels argue that the determination of the court of prior instance, which held that a notice under paragraph (2) of said Article is regarded as an administrative disposition against which an action for judicial review may be filed, misconstrues the relevant laws and regulations.
2. Where a prefectural governor discovers the abolishment of the use of a specified facility using hazardous substances, and where there is an owner, manager, or occupier (hereinafter referred to as the "Owner, etc.") of the site of a plant or workplace pertaining to said facility, other than the person who installed said facility, the prefectural governor shall notify the person who was the Owner, etc. of the site at the time when the use of the facility using hazardous substances was abolished (in the case prescribed in the parentheses in Article 13 of the Ordinance for Enforcement of the Soil Contamination Countermeasures Act (prior to the revision by Ordinance of the Ministry of the Environment No. 1 of 2010), the prefectural governor shall notify the transferee, etc.; the same shall apply hereinafter) of the abolishment of the use of said facility and any other matters (Article 3, paragraph (2) of the Act, and Articles 13 and 14 of the Ordinance for Enforcement of said Act). The Owner, etc. of the relevant site who has received such notice shall, except in the case of receiving the confirmation by the prefectural governor prescribed in the proviso to Article 3, paragraph (1) of the Act, have a person designated by the Minister of the Environment conduct an investigation of the situation of contamination of the soil of the site by the designated hazardous substances prescribed in Article 2, paragraph (1) of the Act in a prescribed manner, and shall report its results to the prefectural governor by submitting a written report prepared by using a prescribed form, within 120 days from the day of receipt of said notice, in principle (Article 3, paragraph (1) of the Act, and Article 1, paragraph (2), item (ii), paragraph (3) of said Article, and Article 2 of the Ordinance for Enforcement of said Act). According to these provisions of the Act and the Ordinance, a notice under Article 3, paragraph (2) of the Act should be construed to obligate the Owner, etc. of the relevant site who receives the notice to carry out the above-mentioned investigation and report, and therefore directly affects the legal status of the Owner, etc.
When the Owner, etc. of the relevant site who has received a notice under Article 3, paragraph (2) of the Act has failed to make the above-mentioned report, the prefectural governor may order such person to make the report (paragraph (3) of said Article), and there are penal provisions to punish any person who violates such order (Article 38 of the Act prior to the revision by Act No. 23 of 2009). However, the obligation to make such report has already arisen by the above-mentioned notice, and even when the Owner, etc. of the relevant site who has received such notice fails to make the above-mentioned report in spite of such notice, an order under Article 3, paragraph (3) of the Act is not issued promptly; thus it is not possible to file an action for revocation of such order at an early stage. Then, also from the viewpoint of achieving effective remedy of rights, there is no reason to restrict the filing of an action for revocation of a notice under paragraph (2) of said Article at the stage when said notice has been issued.
According to the above, it is reasonable to construe a notice under Article 3, paragraph (2) of the Act as an administrative disposition against which an action for judicial review may be filed (see 1962 (O) No. 296, judgment of the First Petty Bench of the Supreme Court of October 29, 1964, Minshu Vol. 18, No. 8, at 1809).
The determination by the court of prior instance that coincides with the above may be affirmed as being justifiable. Since the judgment in prior instance does not contain the alleged illegality, the appeal counsels' argument cannot be adopted.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice CHIBA Katsumi
Justice FURUTA Yuki
Justice TAKEUCHI Yukio
Justice SUDO Masahiko