Hazardous Substances - Certain Legal Aspects
"The Biosphere" Vol. 12
A number of legislative instruments exist that regulate hazardous substances, each defining "hazardous substances" anew, for its own, unique, purposes. Both the principle of the "Certainty of the Law" and the right of a person to know what the law demands of her/him in order to avoid commission of an offense, require that this key term be uniformly and clearly expounded. Certain statutory instruments do not define the term "hazardous substances" in their own words but rather define it by way of reference - either to another statutory instrument of the Israeli legislation or a foreign publication even. This method of legislating cannot be upheld: A person cannot be expected to keep updated foreign publications and even Israeli statutory instruments are not always readily accessible. One should also note that certain definitions use qualitative language (i.e. define hazardous substances as all substances that have a certain quality) instead of duly providing a list of substances. Such definitions usually use vague language, making it dubious to understand and uncertain to implement. Can these varying definitions co-exist? Or does "lex posterioris derogat anterioris"? These questions gain particular importance in the case where a certain Authority can choose whether to use a power accorded to it in one instrument, wherein a substance is termed hazardous, or use a power granted to it in another instrument, wherein that same substance is not regulated. We feel that the definition of "hazardous substances" contained in the Hazardous Substances Act 1993 should gain supremacy over all other definitions, especially those in secondary legislation (i.e. regulations and bye-laws). This supremacy can be inferred from the Act's place in the corpus of Israeli Environmental Legislation (a primary staturory instrument) and the Act's purpose to serve as a comprehensive instrument to regulate the occupation in hazardous substances. Some time after the Hazardous Substances Act 1993 came into effect the Business Licensing Regulations (Hazardous Plants) 1993 were promulgated. These regulations set duties of reporting that we feel ought to have been promulgated under the Hazardous Substances Act for reasons of clarity, uniformity and availability of the law.