Regulating Waste Disposal Facilities in Japan (Part 1): Handling of Non-Acceptance or Rejection of Permit Applications

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

The establishment and operation of waste disposal facilities, particularly those handling industrial waste, are subject to stringent regulations in Japan under the Waste Management and Public Cleansing Act (廃棄物の処理及び清掃に関する法律 – Haikibutsu no Shori oyobi Seisō ni Kansuru Hōritsu, hereinafter "Waste Management Act" or "WMA"). Obtaining the necessary permits from prefectural governors is a critical step, governed by specific statutory criteria and application procedures. However, businesses sometimes encounter preliminary hurdles where prefectural authorities, often relying on internal administrative "guidance outlines" (shidō yōkō – 指導要綱), refuse to formally accept or process permit applications that do not meet extra-statutory conditions, such as prior local consents.

This article (Part 1 of a series) examines the legal issues surrounding the non-acceptance or return of permit applications for industrial waste disposal facilities when such actions are based on non-compliance with non-statutory guidance outlines, and explores the legal recourse available to applicants in such situations.

The Permit Process for Industrial Waste Disposal Facilities under the WMA

Under Article 15, Paragraph 1 of the Waste Management Act, any person intending to establish an industrial waste disposal facility (産業廃棄物処理施設 – sangyō haikibutsu shori shisetsu), such as a final disposal site, must obtain a permit from the prefectural governor.

The criteria for this permit are laid out in Article 15-2, Paragraph 1 of the WMA. Broadly, the governor must issue the permit if the proposed facility:

  1. Meets the technical standards prescribed by Ministry of the Environment Ordinance.
  2. The plan for its establishment and maintenance is consistent with the standards for ensuring the proper disposal of industrial waste.
  3. The applicant possesses the necessary technical capabilities to properly establish and maintain the facility.
  4. The applicant possesses sufficient financial resources to properly establish and maintain the facility.

Article 15, Paragraph 2 of the WMA specifies the documents that must accompany a permit application, including blueprints, structural calculations, maintenance plans, and evidence of technical and financial capability.

The Challenge of "Shidō Yōkō" (Administrative Guidance Outlines)

Prefectural governments in Japan often issue internal administrative guidance outlines (shidō yōkō) concerning various permit processes. While these are intended to provide guidance to applicants and ensure smooth administration, they are not laws or ordinances and cannot impose legally binding obligations on the public beyond what is stipulated by statute.

Scenario: Consider a prefecture (Prefecture B) that has established an "Industrial Waste Disposal Facility Guidance Outline." This Yōkō stipulates that before formally applying for a WMA Article 15 permit, the applicant must:

  1. Engage in pre-application consultation with the prefecture.
  2. Obtain consent from the mayor of the municipality where the facility is to be located.
  3. Obtain consent from the mayors of any adjacent municipalities.
  4. Obtain consent from representatives of local residents in the relevant areas.

Company A, wishing to establish an industrial waste final disposal site, completes the pre-application consultation. However, despite efforts, it fails to obtain all the local consents stipulated in Prefecture B's Yōkō. Believing it meets all statutory requirements under the WMA, Company A proceeds to submit its formal permit application to Governor B, complete with all documents required by WMA Article 15, Paragraph 2, but without the Yōkō-mandated local consents.

The "Returned Application": When an Agency Refuses to Accept a Formally Compliant Application

In response, Governor B's office returns Company A's application documents, stating that the application is "incomplete" because it lacks the local consents required by Prefecture B's Yōkō. Governor B indicates that the formal application will not be accepted or processed until these Yōkō-based consents are provided.

This action by Governor B raises significant legal issues:

  • Duty to Examine Applications (Administrative Procedure Act - APA, Article 7): Article 7 of Japan's Administrative Procedure Act (行政手続法 – Gyōsei Tetsuzuki Hō) states that an administrative agency, upon arrival of an application at its office, must commence its examination without delay. If the application fails to meet the formal requirements prescribed by laws or regulations (e.g., missing statutory documents, incorrect form), the agency should promptly request the applicant to make corrections within a reasonable period or, failing that, formally reject (kyakka – 却下) the application.
  • Statutory vs. Yōkō-Based Requirements: The Waste Management Act (Article 15, Paragraph 2) explicitly lists the documents and information required for an industrial waste facility permit application. Consents from local mayors or residents, if mandated only by a prefectural Yōkō and not by the WMA itself or its implementing orders, do not constitute statutory formal requirements for the application.
  • Illegality of Return/Non-Acceptance: Therefore, returning Company A's application as "incomplete" solely because it lacks consents required only by Prefecture B's internal Yōkō is an unlawful refusal to process a formally compliant application. The Yōkō cannot be used to add new mandatory prerequisites for the acceptance or processing of an application beyond those established by the enabling statute (the WMA). Doing so effectively elevates an internal guideline to the status of law, which is an overreach of administrative authority. The Yōkō may suggest or encourage such consents as part of good practice or for smoother community relations, but it cannot make them a condition for the formal validity of an application under the WMA.

When faced with such an unlawful refusal to accept or process a formally compliant application, Company A has several avenues for legal recourse under the Administrative Case Litigation Act (ACLA). The primary goal is to compel the agency to fulfill its statutory duty to examine the application and, if all statutory criteria are met, issue the permit.

Option 1: Action for Affirmation of Illegality of Inaction (不作為の違法確認訴訟 – fusakui no ihō kakunin soshō)

If the prefecture's act of returning the application is viewed as a refusal to commence the legally mandated examination process, this can be characterized as "inaction" (fusakui – 不作為) concerning a lawfully filed application. Company A could file an action for affirmation of illegality of inaction under ACLA Article 3, Paragraph 5.

  • Outcome: This suit, if successful, would result in a court declaration that the prefecture's failure to process the application is illegal.
  • Limitation: However, this type of suit does not directly compel the agency to issue the permit or even to make a decision by a certain deadline. It confirms the illegality of the delay but may require further steps if the agency remains recalcitrant.

Option 2: Mandatory Action Litigation (義務付け訴訟 – gimuzuke soshō)

This is generally a more effective remedy for compelling administrative action. There are two primary forms:

  • Application-Based Mandatory Action (ACLA Article 3, Paragraph 6, Item 2) combined with an Inaction Suit:
    Company A could file an action for affirmation of illegality of inaction (as above) and, concurrently, an application-based mandatory action suit. This latter suit would seek an order compelling Governor B to make some disposition in response to the application (i.e., to either grant or deny the permit based on statutory criteria, after proper examination). This is often used when the agency is simply not acting on a pending application.
  • Direct-Type Mandatory Action (ACLA Article 3, Paragraph 6, Item 1):
    A more assertive approach is to file a direct-type mandatory action suit seeking an order compelling Governor B to issue the permit itself.
    • Argument: The illegal return of the application based on non-compliance with non-statutory Yōkō requirements is not just a failure to process; it can be interpreted as an unlawful preliminary refusal of the permit. Company A would argue that since its application meets all statutory formal and substantive requirements under WMA Articles 15 and 15-2, Governor B has a legal duty to issue the permit, and the failure to do so (manifested by the illegal return) justifies a direct mandatory order.
    • Requirements (ACLA Article 37-2): This type of suit requires showing that the plaintiff will suffer "grave harm" (jūdai na songai – 重大な損害) if the permit is not issued and that there are "no other appropriate means to avoid such harm." The delay and uncertainty caused by the refusal to process, hindering a major business investment, could potentially satisfy the "grave harm" requirement. The unavailability of a direct revocation suit against the "return" (as it may not be a formal disposition of denial) could satisfy the "no other appropriate means" condition.

Key Arguments for the Illegality of the Prefecture's Actions

Regardless of the specific type of ACLA suit chosen, the core arguments against Prefecture B's actions would be:

  1. Primacy of Statutory Requirements: The Waste Management Act and its implementing orders exclusively define the formal and substantive requirements for an industrial waste facility permit application.
  2. Limited Legal Force of Shidō Yōkō: The prefectural Yōkō, as an internal administrative guideline, cannot legally amend or add to these statutory requirements by making local consents a mandatory precondition for application acceptance or permit approval.
  3. Violation of APA Article 7: The refusal to accept and examine a formally compliant application violates the agency's duty under APA Article 7.
  4. Abuse of Discretion / Illegal Considerations: Basing the refusal to process (or an implicit denial of the permit) solely on non-compliance with non-statutory Yōkō-based consent requirements constitutes an abuse of discretion or a decision based on irrelevant or illegal considerations. The agency's discretion in granting or denying the permit must be exercised based on the criteria in WMA Article 15-2, not on extraneous conditions imposed by a Yōkō.

Practical Implications for Businesses Seeking Permits in Japan

This scenario highlights several important considerations for businesses, including international ones, seeking permits in Japan:

  • Distinguish Law from Guidance: It is crucial to differentiate between mandatory requirements explicitly stated in laws and regulations, and non-binding "recommendations" or "requests" found in administrative guidance outlines (yōkō).
  • Importance of Formal Compliance with Statutes: Ensure that formal applications meticulously meet all requirements stipulated by the relevant statutes and their implementing orders.
  • Engage with Guidance, but Know Your Rights: While it is often practically advisable to engage in pre-application consultations and address local concerns as suggested by yōkō, businesses should be aware that they generally have a legal right to have a formally compliant application accepted and examined based on statutory criteria.
  • Risk of Yōkō as De Facto Hurdles: Be aware that administrative agencies may sometimes attempt to use yōkō to introduce de facto additional conditions or approval hurdles not explicitly authorized by the legislature. Understanding the legal limits of such guidelines is essential.

Conclusion (Part 1)

Obtaining permits for industrial waste disposal facilities in Japan is a statutorily defined process. While prefectural guidance outlines (shidō yōkō) may aim to promote smoother community relations or address local concerns, they cannot be used to unlawfully block the formal acceptance or processing of a permit application that meets all requirements laid down in the Waste Management Act. Businesses faced with such an unlawful refusal to accept or process an application have legal recourse through administrative litigation, primarily by seeking a mandatory court order to compel the agency to fulfill its statutory duties. The key is to demonstrate that the application is formally complete under the WMA and that the agency's refusal is based on non-compliance with extra-statutory conditions imposed by non-binding guidelines. Part 2 of this topic will explore disputes arising after an application is accepted but subsequently denied on substantive grounds, or when permits are revoked.