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Regulation and Implementation of Hazardous and Toxic Waste in Indonesia

By June 30, 2022 No Comments

Introduction

The environment is one of the important aspects of life on earth. To be safe, the environment is one of the duties of Indonesian citizens. As we know, Law No. 32/2009 on Environmental protection and Management (“Environmental Law”) as amended by Law No. 11/2020 about Job Creation (“Job Creation Law”) and further implemented on Regulation of Government No. 22/2021 on Enforcement environmental protection and management (“GR 22/2021”) regulating about environmental management, one of the substance is the hazardous and toxic waste (“Hazardous Waste”).

This article will discuss the regulation of hazardous waste in Environmental Law as amended by Job Creation Law also further arranged in GR 22/2021. Besides that, there will be a discussion between judex facti and judex juris about the implementation and important aspect which judge concerned in the implementation of environmental law, with the main focus on hazardous waste.

General Discussion on Hazardous Waste

Hazardous and Toxic matter is defined as energy, substance, and/or another component which because of its nature, concentration, and/or amount of it, direct or indirect, can contaminate and/or harm the environment, and health, also the continuity of human and other life.1 And, hazardous wastes are defined as a leftover from business and/or activity that contains hazardous and toxic matter.2

Hazardous waste is usually the cause of environmental contamination, thus the companies whose business matter is managing or can produce hazardous waste should do management which can in form of, subtraction, storage, collection, transport, utilization, processing, and/or hoarding.3

Hazardous waste is categorized by its dangerous category, which is divided into b3 waste categories 1 and 2.4 To understand more about the hazardous waste category one can refer to appendix IX from GR 22/2021. The appendix consists of the detail about the category of hazardous waste like Sulfuric Acid, Sludge, or other substance categorized as hazardous waste.

Then, in determining, whether there is environmental contamination, some kind of parameter to prove an environment categorized as “contaminated” is required. The quality standard is the limit or parameter to prove whether or not an environment is contaminated.5 Besides that, measurement of the quality standard is divided into several parts of the environment, namely the quality standard of water, quality standard of waste water, quality standard of ambient air, quality standard of emission, and quality standard of seawater.

Compensation Claim against environmental contamination of hazardous waste

In the enforcement of environmental law, one of the enforcement ways is through a private law, through compensation claim against the contaminated environment. But, to be able to claim compensation, the subsequent proofing namely evidence of a quality standard against the appointed quality standard will be required.

In one of the cases between LSM Forum Peduli Lingkungan Pali versus PT Pertamina EP Asset 2 Pendopo Adera Field in the  decision of District Court No. 17/Pdt.G-LH/2016/PN Mre jo. The decision of High Court No. 23/PDT2017/PT.PLG jo. decision of Supreme Court No. 3304 K/Pdt/2017 judex facti and judex juris explain that to prove a contaminated environment, a methodology is required in form of the level of standard, also parameter which can be rated through scientific proof in the form of a result of laboratory analysis also supported by expert testimony.

This is also aligned with the Decision of Supreme Court No. 1808 K/Pdt/2009 between 3 fisheries in Riau versus PT Aneka Tambang (Tbk), Under the judge’s consideration, judex juris states “Proof in the form of minutes from Fishery Directorate General and strengthened by an expert opinion, has not yet fulfilled what is required by the law. Which is there is no further action in the form of laboratory investigation that can prove “dock construction” causes environmental contamination, and causes the death of the plaintiff’s fish”. From the judex juris consideration explaining, to prove whether there’s environmental contamination or not, by the use of result from laboratory investigation to prove there’s environmental contamination is an important aspect. Due to the use of result from laboratory investigations are able to determine, do an environment is contaminated by surpassing the specific quality standard against the quality standard that has already been determined under the applicable law.

Closing

Based on the consideration described above by judex facti and judex juris in proofing the contaminated environmental case. rating the quality standards, and the use of evidence in the form of results from the scientific laboratory are essential aspects to prove whether an environment is contaminated or not by surpassing the specific standard quality with the standard quality that has been determined under the applicable law.

Sources

  1. Article 1 (21) Enviromental Law jo. Article 1 (67) GR 22/2021
  2. Article 1 (72) Enviromental Law jo. Article 1 (69) GR 22/2021
  3. Article 1 (78) GR 22/2021
  4. Article 278 GR 22/2021
  5. Article 1 (28) GR 22/2021 “Contamination of Environment is enforcement of substance, energy, and/or another component to the environment by the activity of human so it surpasses the environment quality standard which already been set”