From: A.M Oktarina Counsellors at Law
Contributors: Pramudya Yudhatama, S.H., Raysha Alfira, S.H.,
Khaifa Muna Noer Uh’Dina, S.H., Putri Shaquila, S.H.
Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv), Ricki Rahmad Nst, S.H.,
Disposal of Hazardous and Toxic Waste (“B3 Waste”) at this time still often occurs, this action is a form of environmental pollution as reported in the attached link entitled “Impact of B3 Waste on Health”, which if left continuously can cause new problems. The risk of problems that arise, not only has an impact on health, but also the disposal of B3 Waste greatly impacts marine pollution, which itself is regulated in Indonesia positive legal regulations. Marine pollution itself needs to be controlled because the consequences of water pollution can reduce the use of water as the basic capital and the main factor in the ecosystem related to development. This can also be a problem for the sustainability of marine life ecosystems. So how does our positive law regulate the disposal of B3 waste into the sea?
⦁ Legal Basis
⦁ Law of the Republic of Indonesia Number 32 of 2009 concerning Environmental Protection and Management (“Law No.32/2009”)
⦁ Law No. 32 of 2014 concerning Marine Affairs (“Law No.32/2014”)
⦁ Law Number 6 of 2023 concerning the Stipulation of Government Regulations in Lieu of Law Number 2 of 2022 concerning Job Creation into Law (“Law No.6/2023”).
⦁ Government Regulation Number 85 of 1999 concerning Amendments to Government Regulation Number 18 of 1999 concerning Management of Hazardous and Toxic Waste (“PP No.85/1999”).
⦁ Regulation of the Minister of Environment and Forestry Number 6 of 2021 concerning Procedures and Requirements for Hazardous and Toxic Waste Management (“Permen LHK No.6/2021”).
⦁ Regulation of the Minister of Environment and Forestry of the Republic of Indonesia Number 5 of 2022 concerning Wastewater Treatment for Mining Businesses and/or Activities Using the Artificial Wetland Method (“Permen LHK No.5/2022”)
Before diving deeper into the disposal of B3 Waste which can potentially cause damage or marine pollution, by definition marine pollution itself refers to Article 1 number 11 of Law No.32/2014 which reads:
“Marine pollution is the entry or inclusion of living things, substances, energy, and/or other components into the marine environment by human activities so as to exceed the established marine environmental quality standards”.
The occurrence of pollution itself can be measured through environmental quality standards, which we can find an explanation based on Article 1 number 13 of Law No.32/2009 by definition quality standards mean:
“Environmental quality standards are measures of limits or levels of living things, substances, energy, or components that exist or must exist and / or polluting elements that are tolerated for their existence in a particular resource as an element of the environment”.
Please also note that there is one of the regulated provisions, namely regarding dumping or waste disposal which is further regulated in Article 197 Permen LHK No.6/2021:
⦁ “Everyone who dumps waste into the sea must have approval from the Central Government.
⦁ Each person as referred to in paragraph (1) is the first party to produce waste”.
But keep in mind, not all waste can be discharged into the sea. Based on Article 198 Permen LHK No.6/2021, waste that can be discharged into the sea includes:
⦁ “B3 waste is in the form of:
⦁ Tailings from mining product processing activities; and
⦁ drill powder from the results of business drilling and/or exploration and/or exploitation activities at sea using synthetic based mud; and
⦁ Non-B3 waste in the form of drill powder and drill mud from the results of business drilling and/or exploration and/or exploitation activities at sea using water-based mud”.
The B3 Waste as mentioned above, has a classification as stated in Article 7 PP No.85/1999, namely:
⦁ “Types of B3 waste according to the source include:
a. B3 waste from non-specific sources;
b. B3 waste from specific sources;
c. B3 waste from expired chemicals, spills, packaging containers, and product discharges that do not meet specifications.
⦁ Details of each type as referred to in paragraph (1) as set out in Appendix I to this Government Regulation.
⦁ Test characteristics of B3 waste include:
c. is reactive;
e. cause infection; and
f. is corrosive.
⦁ Toxicological testing to determine acute and/or chronic nature.
⦁ The list of waste with waste codes D220, D221, D222, and D223 can be declared B3 waste after characteristic tests and / or toxicological tests”.
In terms of dumping waste into the sea, of course, it must still meet the provisions as stipulated in Article 200 Permen LHK No.6/2021 that:
“Every person who dumps waste into the sea as referred to in Article 197 must meet the following conditions:
⦁ Waste requirements before dumping;
⦁ Dumping location requirements;
⦁ Dumping procedures; and
⦁ environmental monitoring”.
The provisions governing B3 Waste management as Article 59 of Law No.32/2009 Jo Law No.6/2023:
(1)”Everyone who produces B3 waste must manage the B3 waste they produce.
(2) In the event that B3 as referred to in Article 58 paragraph (1) has expired, its management follows the provisions of B3 waste management.
(3) In the event that any person as referred to in paragraph (1) is unable to carry out B3 Waste Management himself, the management shall be handed over to another party.
(4) B3 Waste Management must obtain a Business License or approval from the Central Government or Regional Government.
(5) The Central Government or Regional Government must include the Environmental requirements that must be met and the obligations that must be complied with by the B3 Waste manager in the Business Permit, or the approval of the Central Government or Regional Government.
(6) The decision on granting a Business License must be announced.
(7) Further provisions regarding B3 waste management shall be regulated in Government Regulations”.
One recent example is the link “Dumping Nuclear Waste into the Sea, Japan Claims to Stay Safe” which describes Japan dumping waste from its damaged Fukushima nuclear power plant into the Pacific Ocean, sparking protests at domestic. But Japan and related scientific organizations have said the waste is safe. This is based on claims that the waste has been filtered to remove most radioactive elements, except tritium, a radioactive isotope of hydrogen. Because tritium is difficult to separate from water, the waste is diluted until tritium levels are below regulatory limits. Of course this is very interesting and has development potential in the future,
So we need to correlate with Indonesian environmental regulations, how to respond to this requirement? It can be known, dumping garbage or waste into the marine environment is allowed as long as it does not exceed environmental quality standards, and obtain permission from the Minister of Environment and Forestry, governor, or regent/mayor in accordance with their authority.
This has also been regulated as stated in Article 60 of Law No.32/2009 that everyone is prohibited from dumping waste and/or materials into environmental media without permission and Article 61 of Law No.32/2009 jo Law No.6/2023 which explains that:
(1)”Dumping as referred to in Article 60 may only be carried out with the approval of the Central Government.
(2) Dumping as referred to in paragraph (1) can only be carried out at a designated location.
(3) Further provisions regarding procedures and requirements for dumping / disposal of waste or materials are regulated in Government Regulations”.
Based on the provisions attached above, waste disposal certainly also has existing procedures and has also been regulated in Article 2 Permen LHK No.5/2022, namely:
(1) The person in charge of the Mining Business and/or Activities must carry out Wastewater Treatment before being discharged into the water media.
(2) In carrying out Wastewater Treatment, the person in charge of Mining Business and/or Activities may apply Wastewater Treatment Technology Standards by means of Artificial Wetlands.
(4) Wastewater as referred to in paragraph (1) includes:
a. Main process wastewater; and
b. Supporting process wastewater.
(5) The main process wastewater as referred to in paragraph (4) point a includes:
a. runoff water;
b. Wastewater from mine pits; and/or
c. Wastewater from treatment and purification processes.
(6) Wastewater supporting processes as referred to in paragraph (4) point b include:
a. Domestic Wastewater in the Mining area;
b. Wastewater from workshop activities; and/or
c. Wastewater from the laboratory.
As also mentioned in Appendix I of the Permen LHK No.5/2022, the Requirements for Location and Facilities of Artificial Wetlands are:
“Artificial Wetlands or often called constructed wetlands can function as wastewater treatment facilities by utilizing a combination process between plants, organic media, microbes, and soil in waterlogged conditions. There are two types of Artificial Wetlands, namely the surface flow system or Free Water System (FWS) and the Sub-surface Flow System (SSF). This technical standard only applies to mining wastewater treatment utilizing appropriate artificial wetlands, specifically surface flow systems (FWS)”.
People who dump waste without permission may be subject to sanctions as stipulated in Article 104 of Law No.32/2009, namely:
“Any person who dumps waste and/or materials into environmental media without permission as referred to in Article 60 shall be punished with a maximum imprisonment of 3 (three) years and a maximum fine of Rp3,000,000,000.00 (three billion rupiah)”.
In addition to criminal charges due to waste disposal as above, there are several other threats of criminal sanctions that can be imposed on perpetrators as stipulated in Article 98 of Law No.32/2009, namely:
“Any person who intentionally commits an act that results in exceeding ambient air quality standards, water quality standards, sea water quality standards, or standard criteria for environmental damage, shall be punished with a prison sentence of not less than 3 (three) years and a maximum of 10 (ten) years and a fine of at least Rp3,000,000,000.00 (three billion rupiah) and a maximum of Rp10,000,000,000.00 (ten billion rupiah).
If the act as referred to in paragraph (1) results in injury and/or danger to human health, it shall be punished with a prison sentence of not less than 4 (four) years and a maximum of 12 (twelve) years and a fine of at least Rp4,000,000,000.00 (four billion rupiah) and a maximum of Rp12,000,000,000.00 (twelve billion rupiah).
If the act as referred to in paragraph (1) results in serious injury or death, it shall be punished with imprisonment for a minimum of 5 (five) years and a maximum of 15 (fifteen) years and a fine of at least Rp5,000,000,000.00 (five billion rupiah) and a maximum of Rp15,000,000,000.00 (fifteen billion rupiah)”.
Unlike the case if the crime is committed by a business entity and / or person who gives an order for a criminal act, which has been regulated in Article 116 of Law No. 32/2009, namely:
“(1) If an environmental crime is committed by, for, or on behalf of a business entity, criminal charges and criminal sanctions shall be imposed on:
a. business entity; and/or
b. the person who gave the order to commit the crime or the person who acted as the leader of the activity in the criminal act.
(2) If an environmental crime as referred to in sub-article (1) is committed by a person, based on an employment relationship or based on other relationships acting within the scope of work of a business entity, criminal sanctions shall be imposed on the order-giver or leader in the crime without regard to the crime committed alone or jointly”.
If charges are imposed on the order-giver and/or leader, the criminal threat imposed is aggravated by one-third, as stipulated in Article 117 Law 32/2009, namely:
“If criminal charges are filed against the order-giver or leader of a criminal act as referred to in Article 116 paragraph (1) point b, the criminal threat imposed is imprisonment and a fine of one-third”.
In addition to criminal acts imposed on business entities, there are also administrative sanctions which have also been regulated in Article 82C of Law No.32/2009 Jo Law No.6/2023 in the form of written reprimands, government coercion, administrative fines, suspension of Business Licenses and/or revocation of Business Licenses.
The implementation of waste disposal and/or B3 waste to the sea can be carried out with technical approval and/or operational feasibility letter for hazardous and toxic waste management into environmental approval as described. But on the contrary, if done not following existing rules, it causes marine pollution due to mining and industrial waste, resulting in disruption of marine resource ecosystems, such as the death of fish and damage to coral reefs.
Based on the discussion above, in terms of disposing of B3 waste into the sea, it can be done, of course, by paying attention to existing rules and regulations so that the disposal of waste into the sea will not cause environmental pollution. As we need to know that the factors of environmental pollution need to be considered by how we process the waste in accordance with PP 85/1999, so as not to become substances / components that exceed the quality stone of the marine environment, so as to reduce the impact of pollution that occurs.
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