[....]
The aforesaid interpretation, which emphasizes the objective standard in examining the existence of an environmental hazard, can also be found anchored in the explicit intention of the legislature that stood in the background of the enactment of the Prevention of Environmental Hazards Law . An examination of the committee's deliberations that preceded the approval of the law, and a significant part of which dealt with the definition of an "environmental hazard", shows that the basis for such a definition is the objective criteria set out in the law or on its basis in relation to the permissible level of pollution [...]
From these things (and from others, see there, at p. 47) it clearly emerges that within the framework of the Prevention of Environmental Hazards Law, the legislature sought to establish the possibility of a private lawsuit, first and foremost, on the basis of the existing legislation and subordinate legislation in this matter, which until then, as will be recalled, did not include the possibility of a private lawsuit. It should be noted that the legislature did indeed seek to expand and allow a claim beyond this framework (see, for example, the committee's deliberations of February 18, 1992, at p. 13), and in light of this, it added, within the framework of the hurdle of the severity of the hazard, the alternative that deals with "harming the health of a person or causing real suffering to the person". However, even within the framework of this alternative, it is evident that the legislature is trying not to break the boundaries of the definition of an "environmental hazard" beyond the scope of cases whose measurement is objective-external in nature, by limiting it to harm to health and causing real suffering only (on this, see: Flint and Vinitsky, at pp. 466-467; See also the Committee's deliberations of February 24, 1992, at pp. 45-51, in which the Committee decided, as part of the aforesaid effort, to cancel an earlier version of the definition in question, which included at the end an alternative of "or are unreasonable in the circumstances of the case", and to add in its place a limited test of harm to health as aforesaid) (ibid., at length, paragraphs 35, 37).
- The parties disagree on the question of whether there is room to certify the class action, by virtue of Item 6 of the Second Addendum [see also at length: paragraphs 589-595 of the Respondents' summaries; paragraphs 60-62 of the Applicants' reply summaries].
- After considering the arguments of the parties, the opinions that were submitted, and my impression of the testimonies that were heard, I have come to the conclusion that the Applicants' claim of the existence of an "environmental hazard" should be rejected.
- We will focus on the second hurdle, which relates to the "severity of the hazard." The applicants had to prove at the required level ["a high level of rigor" (see the Strauss case)], the 'normative component' to say that "the hazard has a severity that justifies its classification as an 'environmental hazard', being 'contrary' to a document or provision of a normative dimension ('legislation, order, plan, business license or any other permit or license')".
- The applicants, and in particular the various experts on their behalf, failed to meet the burden of proof and persuasion imposed on them, as aforesaid, and as detailed in detail below.
- The Applicants did not prove with actual valid and admissible evidence that the alleged emissions of pollutants in the Respondents' factories "deviate from an objective standard or threshold that originates from a provision with some normative charge", when such an objective standard – which was not presented and proven in their evidence – "can come in the form of numerical 'pollution values' established by the subordinate legislature in relation to certain types of pollution" (see the Strauss case above) [and also: section 491 of the Respondents' summaries].
- The Applicants did not present evidence and admissible data from which it can be concluded with the necessary certainty that the various concentrations measured (in the ambient air) [see also the monitoring reports] deviate from the 'environmental values' set forth in section 6(a)(2) of the Clean Air Law, which then exceeds these.".constitutes a concern of danger or harm to human life", and that the source of these concentrations is (only) the emissions that occur in the Respondents' factories, taking into account also the fact (to which Prof. Grotto also agrees) that there are other significant sources of pollution in Haifa Bay, such as transportation, the electric company (the power plant) and the port [see also: paragraph 593 of the Respondents' summaries].
- The applicants attached Appendix 11 to the report "Emissions and Air Quality in Haifa Bay and the Surrounding Area, December 2014 Situation" (A. Trachtman, Dr. L. Cordoba) and sought to rely on it to prove their claims. I do not believe that this report has the power to assist the applicants.
- In the background chapter, the authors write, among other things, that "...It should be noted that, as stated above, in the past five years there has been a significant decrease in these emissions [reviewed in section 1 on page 2 - D.H.] following the implementation of the requirements of the Ministry of Environmental Protection. Emissions in 2009 were three times higher than emissions in 2013." It should be emphasized that the first part of the report refers to all the sources of emissions in Haifa Bay, stating that "...The sources of methane emissions included in this report include: industrial plants, gas stations, quarries, power plants, etc" (page 3 below).
As can be seen in Table 1 , "Details of the Factories" [much more than ten], reference was made to the various pollutants listed in column No. 3, which originated in the chimneys of the factories (see column No. 4 in the table) (pp. 4-8). And to be precise – this is not about the ambient air.
- Section 3 describes "the state of air quality in the Haifa area". It states, among other things, that an environmental monitoring system operates in the Haifa area "...which consists of permanent continuous monitoring stations and a complementary system for environmental tests, which enable obtaining a very comprehensive picture of the situation." It was also said that in the Haifa area."There are 25 environmental monitoring stations, of which 23 are general stations/stations for monitoring stationary emission sources....This is one of the most dense monitoring networks in the world when compared to the requirements of the European Directive and the implementation of the U.S. Directive" (page 20).
- A separate chapter of the report is devoted to "continuous monitoring of the environment" (section 3.1). At the beginning of the section, it is written, inter alia, that "...Due to Israel's geographical location between the deserts of North Africa and the deserts of the Arabian Peninsula, desert dust has a significant contribution to the concentrations of particles measured in the monitoring stations and to the number of deviations compared to European and North American countries" (page 24 above).
- As stated, the section refers to the number of the various monitoring stations in the Haifa area and their location (pages 20-23), the results of continuous monitoring are reviewed in relation to respiratory particles (section 3.1.3.1), in relation to fine respiratory particles (PM2.5) [ subsection 1) and in relation to respiratory particles (PM10) ( section 2). Section C reviews the health risk as a result of exposure to particulate matter in the air. On pages 28-36, the results of the monitoring were reviewed, with reference to various materials. In summary, it should be noted that according to what was stated in the report, there are substances that are not emitted only from the factories, such as: sulfur dioxide, which also originates from power plants; Ozone that also comes from power stations, vehicles, transportation and fuel production, including gas stations, printing houses, etc. Nitric oxides also come from vehicle engines, power plants, and industrial furnaces.
- See also Dr. Liviki's words on this point, according to which "...The monitoring systems also measure everything that is in the air from any other source. including cars, from Europe, from the port, pollution from cars, from Europe, from the port" (page 1715, lines 11-16) (see also: her testimony on pages 1704-1709).
- Pages 48-76 reviewed factories that underwent the regulation to reduce NMVOC emissions before the Air Point Law came into effect. Among the factories mentioned appear to the best of the best of the examination, all of the respondents except for respondent No. 7. For respondents Nos. 9, 10, 6, 8, 1, 2, and 3, tables were presented showing a significant decrease in NMVOC emissions during the years 2009-2015.
- Goodman was asked about the aforementioned Appendix 11 and the emissions table presented therein, and she replied as follows:
Adv. Mr. D. Or Chen: Let me tell you that according to the table, the level of emission of organic materials per ton per year per square kilometer in Haifa is almost 42 and in Tel Aviv it is 25. I ask you why such a table is not even mentioned in her opinion in which she brought only tables that fit her approach and her perception that there is no pollution in Haifa Bay and that pollution does not cause excess morbidity?