The Permissible and the Substantial Hazards on the Way to a Hazardous Substances Permit
"Hazardous Substances" Vol. 2
Tzvi Levinson & Tal Tzafrir, Advocates
The importance of a Hazardous Substances Permit can not be overstated -- It is practically a sine qua non to the operation of almost every business. The right to a Hazardous Substances Permit has been granted in Basic Law: Freedom of Occupation. This right is qualified -- One still has to comply with the requirements set in The Hazardous Substances Act 1993, in order to get a Permit. A person dealing with hazardous substances on several sites needs only one Permit. A "person" here is also a corporation, and is personified in the RCO in charge of hazardous substances. The Principle of Legality limits the "Supervisor" in the terms she/he can set in a Permit, thus: Terms should be aimed at protecting the environment or the public health From risks originating in the occupation with hazardous substances That are an "internal", integral, part of this occupation. Several of the considerations that the "Supervisor" should take into account when setting terms in a Permit are the following: Available, tested technology; Cost-Benefit; The term's contribution to furthering the protection of the environment or the public health; or The foreseeable harm that will be caused to the environment or the public health if the term is not set; Terms set in like cases; Terms set by other Authorities in their special capacities (e.g. by a Fire Fighting Authority or the Ministry of Transportation). The "Supervisor" should also elaborate on the choice of terms and explain her/his reasons for setting each particular term. A Permit is issued for a period of one year, two years or three years according to guidelines set by the Minister of Environment -- The "Supervisor" is not free to set a period according to her/his independent discretion. A Permit may be revoked either by an administrative order or by a judicial order. The "Supervisor"'s power to revoke a Permit is draconian -- Her/his discretion in exercising it is not even dependent upon the conduct or misfeasance on the Holder's behalf nor upon fault on her/his side that usually accompanies the commission of an offence. We are of the opinion that the "Supervisor" may exercise this power only in cases where there exist extreme circumstances and where there is an imminent threat to the environment or the public health. Otherwise she/he should leave the matter is the hands of the Court. The import and export of Hazardous Wastes are governed by Regulations that were promulgated in order to assimilate the "Basel Convention" in Israeli law, and require a special permit. The Legislator imposes certain duties upon retailers of hazardous substances which may be avoided by using a subsidiary firm to do the actual selling. The transportation of hazardous substances is subject not only to the Act but also to the Supervision over Products and Services Decree (Transportation and Towing Services) 1978 that requires several additional permits and licenses. Hazardous wastes are as a matter of course to be transferred to the Hazardous Wastes Treatment Plant in Ramat-Hovav. The alternatives of recycling and reuse are recognised by law yet the market for used hazardous substances is still underdeveloped in Israel.