Class Action (Tel Aviv) 11278-10-19 Yehoshua Klein v. Oil Refineries Ltd. - part 149

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Interpreter, A.  Second:      I think I've already answered this question a few times, What you see here in this table is not what you breathe.  Emissions are not what is in the air you breathe, What shows what's in the air are monitors that are in people's places of residence.  Only from this can we learn this information.  This chart would not have contributed to my analysis.  And what...  Support for what I'm telling you here can be found in the fact that the air standards, Air standards in Israel and the United States and elsewhere are all based on environmental levels, not emissions, when it comes to protecting public health.

(pp. 2365-2366).

82. From the above, it appears in relation to Appendix 11 of the Refugee Report that what is stated therein does not assist the applicants in proving their application.
83. In paragraph 52 of the application for approval, the Applicants refer to the "Report of the Ministry of the Environment – 'Characterization of the Air in Haifa Bay – October 2009 and March 2010'" (Appendix 3), and specify on page 15 the types of substances detailed therein and their quantities (see also section 50 of the summaries of the response and also section 30 above).
84. I am of the opinion that even what is stated in the aforementioned Appendix 3 does not have the power to assist the applicants in proving everything that is required of them within the scope of the application.
85. As stated in the aforementioned report, the tests were carried out in October 2009 at 10 stations listed on page 2, and in March 2010 at 2 The authors note that the sampling duration for all materials was 24 hours and "...Therefore, when it comes to a concentration that is higher than the reference value or an annual standard, it should be understood that this is a single daily measurement that does not represent a year.  It is necessary to continue to check over time to check whether the values do indeed deviate/do not exceed the annual reference value/standard" (page 1 above).  The report also states that the Ministry of Environmental Protection "...Preparing a plan for frequent environmental inspections in various locations throughout the country, including in pollution hotspots such as Haifa Bay, in order to characterize air quality" (page 1 below).
86. In the report itself, in which the factories are not specifically mentioned, summaries of the results of the various concentrations of substances that were measured (see Appendix 2 not attached) were presented, and a consolidating table (Appendix 3 was not attached) of the results of the tests that took place in 2007, 2008, and 2009.
87. As stated, this is a daily call atten stations, when on the face of it, they do not only measure the emissions from the respondents' chimneys. On top of that, and in a nutshell, we will note that as it emerges from the report and without going into the quantitative figures, that:
88. Regarding the hydrogen chloride that was measured, it was written that it originated from the burning of fuels, and that according to what is known from California, one of the great sources of its emissions is "companies that supply electricity," and that the substance is used to clean boilers and can be emitted from the use of disinfectants in homes, hospitals, and swimming pools.
89. As for the ammonia that was measured - it is naturally found in low concentrations in the air and is also obtained "...from anthropogenic sources such as the production and use of fertilizers, animal excretion from places where they are kept in concentration, used in cleaning agents, and more."

• Regarding the benzene that was measured, it was said that it was "...coal is emitted from the burning of coal and its liquid fuel is emitted from the storage of fuel distillates (tank farms) and that "the main sources are vehicles and gas stations"

1. As for the chloroform measured, it is said that it is "...It is emitted into the air from chlorinated drinking water for disinfection, and it is emitted from wastewater and swimming pools from its production processes and from the industrial processes in which it is used."
2. With regard to acetaldehyde measured, the authors noted that "...It is an intermediate product in the process of respiration of plants, created by the incomplete burning of trees in domestic heating facilities, roasting coffee, burning tobacco and emitted from vehicles."
3. As for the acrolin that is measured, it is "...It was created by burning gasoline in vehicles, from power plants that work on coal, from cigarette smokers."
4. From the compilation of the matter of Appendix 3 above, it emerges that what is stated therein does not assist the Applicants in proving their application, and in particular their claim that the alleged excess morbidity originated from the Respondents and the matter of the causal connection.
5. The Applicants also did not present any other acceptable information or measurements of their own, which would contradict the expert statements of the Respondents, and in particular S. Libiki, who expressed her opinion [while presenting supporting information] that no deviations were discovered in the Bay of Environmental Values (see paragraph 440 above; paragraph 6 of its opinion).
6. As the Respondents correctly noted in their summaries and see the detailed discussion above in the Applicants' evidence, the Applicants also failed to prove that the Respondents or any of them exceeded the threshold permitted to them under the personal orders or emission permits that were granted to them (see the examples in Appendix 17 to Kantor's affidavit) in such a way that they carried out an "unlawful" eviction (ibid., section 593(a)).
7. Similarly, the Applicants did not bring any real evidence that the Respondents – in the emissions that take place in their factories – consistently deviated from an objective regulatory standard in a consistent, continuous manner and as a matter of routine, taking into account the fact that the application at issue "...is not focused on a specific event or a number of specific air pollution events, but rather on an argument for an ongoing state of air pollution" (see also at length: paragraph 365 of the respondents' summaries).
8. I also accept the Respondents' argument that the Applicants (and in particular Dr. Shlita in the framework of his first opinion) detailed and brought many data regarding various substances that are allegedly emitted from the chimneys of the factories (emissions that are not 'ambient air'), but in this there is no meaningful clarifying assistance to the request for approval, as long as it is not proven that these emissions were, consistently and over a period of time, at exceptional values, and especially when it was not proven that the exposure to these substances [emitted from the factories] was not proven. It rises and exceeds the permissible environmental standards .
9. The fact that indictments were allegedly filed against any of the respondents – indictments that were not presented to the court – does not indicate consistent infringing behavior, indicates active enforcement by the authorities, and apparently relates to emissions from the chimneys, and is not related to the ambient air.
10. It is not superfluous to note that the Applicants in their application claimed, inter alia, an excess of morbidity in the disease 'cancer' as a generic name for the disease, without referring to certain types of carcinogens in which an alleged 'excess morbidity' was allegedly discovered [as in the case being heard simultaneously in the Haifa District Court], which may and is caused as a result of the alleged air pollution. For example, Prof. Rennert emphasized , among other things, that "...Now, with all due respect, can't it be that the factories caused a surplus of 16 out of 18 tumors because they don't produce substances that carcinogenize 16 different organs" (page 1961, lines 21-24) (see also his testimony on page 1963, lines 15-23 and on page 1968, lines 9-20) (see also: The Kishon Case, 9; Sections 334 above and 541-543 below).
11. Similarly, the Applicants did not present, let alone that they did not prove that the Respondents operated a stationary emission source in contravention of the emission permit given to them and in contravention of section 14 of the Clean Air Law , or that they did not monitor and sample the emission sources to which the Law applies, in accordance with the provisions of section 15 (see also: section 492 of the Respondents' summaries).
12. In the Strauss case, it was held, inter alia, that "...Although basing a determination that there is an "environmental hazard" on a professional opinion is not necessary in any case, it is certainly appropriate and necessary in cases where such a decision is required (see and compare: the Presht case, at pp. 5-6; Civil Appeal 2032/06 Haggy v. Estate of the late Salman Yousef Ziyan, para. 33 (February 1, 2009); Yaakov Kedmi on Evidence, Part II, 759 (2009); Flint and Vinitsky, at pp. 498-503)" (ibid., para. 54). In our case, and in view of all that is brought in the analysis of the testimonies of all the above experts and what is stated in their opinions, I have come to the conclusion that  the  words of the applicants' experts and the data they presented do not assist them to the extent necessary in proving the existence of an "environmental hazard".
13. As held in the Strauss case above,  the ability of the applicants to prove "... 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."  Taking into account all of the above and the analysis of the evidence before me, the obvious conclusion is that the applicants did not act as aforesaid and did not prove what was required of them, and that they were not able to meet the burden imposed on them and prove at the level required of them (and even at this stage of the hearing of the application for approval) that "the hazard is of severity that justifies its classification as an 'environmental hazard', being 'contrary' to a document or instruction of a normative dimension".
14. Given all of the above, and in accordance with what was ruled in the Strauss case above (paragraph 19), it should be said that in order for the applicants to be allowed to conduct a class action in this case, they are required as a prerequisite to prove – and they have failed to do so – that the negligent act attributed to the respondents falls within the scope of "a claim in connection with an environmental hazard against the hazard party".
15. And even if it is said that the factories (or any of them) indeed create an 'environmental hazard' [which is the 'tortious act'], the applicants are still obligated to prove that this hazard causes 'excess morbidity' and the other required elements, as detailed below.
16. Similarly, in the Golan case above, it was held, inter alia, that:

The possibility of filing a class action for  the tort of mass exposure is based on Item 6 of the Second Addendum to  the Class Actions Law, which deals with "a claim in connection with an environmental hazard".   As a tort, the tort of mass exposure requires proof of the relevant elements, including the existence of a tortious act, of the injured or injured persons, of damage, and of a causal connection between the tort and the damage (and it does not matter at this stage whether the tort of mass exposure is based on the tort of negligence, the tort of breach of statutory duty or the tort by  virtue of section 70 of  the Clean Air Law, 5768-2008; In this regard, we should mention that it is customary to view the list of torts as a closed list, and therefore the tort of mass exposure must be based on an existing tort (ibid., paragraph 12).