For the purpose of defining "air pollution", the Prevention of Environmental Hazards Law refers to the Clean Air Law, in which section 2 states that the reference is to "the presence in the air of a pollutant, including such presence that constitutes a deviation from air quality values, or the emission of a pollutant that constitutes a deviation from emission values".
- As noted above, applicants must overcome two hurdles "in order to prove the existence of an environmental hazard", one concerned "the type of hazard" and the other concerned "the severity of the hazard".
- With regard to the second hurdle in the form of "the severity of the hazard", the applicants must prove that the 'hazard' has severity that justifies its classification as an "environmental hazard", as it is "contrary" to a document or provision of a normative dimension ("legislation, order, plan, business license or any other permit or license") (the normative component), or alternatively that it harms the health of a person or causes real suffering to the person.
- In the present proceeding, the applicants do not claim compensation for damage of "harm to their health", but rather damage of the type of "infringement of autonomy". Therefore, and in view of the rule ruled in the Strauss case above, in the absence of alleged damage of "harm to health", the applicants are unable to meet the conditions of proving the existence of an "environmental hazard" under the second alternative track that requires harm to health or caused actual suffering.
- It was held in the Strauss case above on this matter that "...Whatever the interpretation of the height and nature of the aforementioned hurdles, it seems that there is no dispute that when no harm to a person has occurred (or at least has not been claimed) to a person ("harm to a person's health or actual suffering to a person") as a result of the pollution in question, proof of the existence of an "environmental hazard" depends on proof that the emission of the substance that occurred exceeds an objective standard or threshold that originates from a provision with some normative charge (hereinafter: the objective standard). To be precise, such an objective standard can come in the form of numerical 'pollution values' established by the subordinate legislature in relation to certain types of pollution, or by means of the concept of a normative valve."
- With regard to "the relationship between the hurdle of the type of hazard and the hurdle of the severity of the hazard in the definition of an 'environmental hazard'", the court in the Strauss case held , inter alia, that:
In my opinion, the definition of "environmental hazard" set forth in section 1 of the Prevention of Environmental Hazards Law should be interpreted as follows (when, as in the case at hand, the alternative of harming a person's health or causing real suffering to a person does not exist): insofar as there is an objective standard in law with respect to the relevant pollution, and this, as will be recalled, whether in the form of emission or leakage rates (in the sense of the amount of material present in the air following the environmental event) that were determined in secondary legislation or in the form of setting a verbal standard in secondary legislation (using terms such as "reasonable" and "strong") that it is forbidden to cross – a judicial determination that an environmental hazard of this type existed requires proof that the emission or leak in question exceeded the aforementioned rate or standard. Accordingly, when we are dealing with pollution in respect of which no such threshold has been set, a requirement must be made that the pollution in question be "contrary to legislation, order, plan, business license or any other permit or license" that was given to the entity claimed to be the causing factor...This means that in order for an "environmental hazard" to be referred to (when, as noted, it has not been claimed or proven that the pollution in question has "harmed a person's health or caused real suffering to the person"), it is required, in any case, to prove that an objective standard has been met. Therefore, if the existence of any of the three aforementioned alternatives has not been proven (exceeding the emission or leakage rate defined in the secondary legislation; or exceeding a verbal standard defined in the subordinate legislation; or pollution in contravention of legislation, order, plan, business license or any other permit or license), it is not an environmental hazard for the purposes of Item 6 of the Second Addendum to the Law. However, to the extent that the objective standard is examined within the framework of defining the type of hazard, there is no need for further examination of it as part of the examination of the severity of the hazard. In other words, the normative component of the hurdle that deals with the severity of the hazard ("as opposed to...") necessarily exists when the relevant type of pollution, within the scope of the first hurdle, includes within it an objective standard, which exists in the circumstances of the case at hand