Introduction

According to Law No. 32 of 2009 on Protection and Management of the Environment as amended by Law No. 11 of 2020 regarding Job Creation (“Environmental Law”), Environmental Pollution is defined as the incoming or inclusion of creature, substances energies and/ or other components into the environment by human activities so as to exceed the stipulated environmental quality standard.1 One of the forms of Environmental Pollution that is usually occurred is through hazardous toxic material waste.

Hazardous, toxic, material (“B3”) is substances, energies and/or other components which may pollute and/or destroy directly or indirectly the environment and/or endanger the environment; health as well as continuation of life of human and other creatures because of their characteristics, concentration and/or quantity.2 Meanwhile, B3 Waste is a remnant of business and/or activity that contains B3 (“B3 Waste”).3

In relation to the definition of B3 Waste above, the evidentiary procedure to determine whether a pollution had occurs due to B3 Waste, is conducted by characteristic test to prove the said waste is B3 Waste that polluting the environment. The implementation of characteristic test as decisive evidence to determine whether exist a B3 Waste that polluted the environment can be reviewed from one of environmental dispute case provided in this article.

This article discusses one of the evidentiary process to prove the pollution of environment, specifically by B3 Waste through characteristic test. The important matters that shall be discussed through this article is the implementation of the characteristics test in the environmental cases.

Implementation of the characteristics test in the environmental cases

Applying the characteristic test in environmental cases, especially regarding pollution by B3 Waste is crucial. Stipulated in one of the District Court Decisions, in which case the application of the characteristic test determines whether or not a piece of evidence in an environmental case is valid. This article will discuss the Decision by the District Court of Siak:

No. 12/Pdt.G/LH/2022/PN SAK

Claimant: Environmental Foundation

Defendant I: Waste processor, Defendant II: Waste producer, Defendant III: Waste producer, Defendant IV: Waste producer

Co-defendant: Directorate General of Waste Management of Ministry of Environment and Forestry

Background of the Case:

The Plaintiff argued that Defendant I, as the B3 waste processor, had disposed B3 waste from the B3 waste producer, namely Defendants II, III, IV; to the disputed object.4

According to the Plaintiff, the waste disposed by Defendant I is a B3 waste in the form of Spent Bleacing Earth (SBE) which still contain palm oil, and flowed into rivers flowing up to the Takwana River and dams near Minas Forest Park, resulting in pollution to those area.5

Sources  Characteristic Test: Evidentiary Instrument of Poisonous and Hazardous Material

Panel of judge consideration

The Panel of Judges considered that, to determine  whether  B3 Waste exists at the location of the disputed object, it was necessary to perform characteristic test of the B3 Waste, which in this case the Panel of Judges refers to the Minister of Environment and Forestry Regulation Number 10 of 2020 on Procedures For Characteristic Testing And Status Determinations For Hazardous And Toxic Material Waste6 (“Ministry of Environment Regulation 10/2020”), and concludes that the B3 waste characteristic test standards are as follows:7

  1. Characteristic test consists of collecting test samples and carrying out characteristic tests of B3 waste;
  2. The sampling is carried out using the Indonesian National Standard method Number: SNI 6989.59:2008 for testing samples of liquid B3 waste;
  3. The characteristic test is carried out based on the characteristics of the B3 Waste, which include: (a) explosive; (b) flammable; (c) reactive; (d) infectious; (e) corrosive; (f) toxic through TCLP test; (g) toxic through the LD50 Toxicology Test; (h) toxic through total heavy metal concentration test; and (i) toxic through sub-chronic toxicology tests.
  4. The characteristic tests are carried out sequentially and if one of the tests on the characteristics of the B3 Waste is found to meet the characteristics of the B3 Waste, the next sequence of tests for the characteristics of the B3 Waste does not need to be carried out.
  5. Performed by accredited laboratory.

The Panel of Judges is of the opinion that between the Plaintiff and Defendant I, has submitted evidence of laboratory test results, which in this case, if adjusted to the provisions of Ministry of Environment Regulation 10/2020, have the following differences:

  1. Plaintiff laboratory lab test result8
    • Sample collection performed independently which afterward submitted to the laboratory and in collecting the sample does not mention the location of sampling;
    • Characteristic test performed by a laboratory that has been accredited by National Accredited Committee (KAN);
    • Does not mention whether the collection method performed according to Indonesian National Standard Number: SNI 6989.59:2008;
    • Sequential testing is not carried out as stipulated under the Minister of Environment Regulation 10/2020;
  2. Defendant I laboratory test result.9
    • Test samples have been taken and continued with characteristic tests of the B3 Waste;
    • The test method has been carried out using the Indonesian National Standard method Number: SNI 6989.59:2008 for the collection of liquid B3 waste;
    • Sequential testing has been carried out by a laboratory that has been accredited by the National Accreditation Committee (KAN);
    • Sampling was accompanied by a team from the respective Environment Agency (DLH).
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Based on the evidence presented by the Plaintiff and Defendant I, the judge concluded that because the plaintiff collecting the sample independently and it was not visible from the location where the test results were taken, thus, the Panel of Judges stated that it was not clear and certain about the validity of the test results.10

On the other hand, because the results of the characteristic test proposed by Defendant I have complied with what is regulated in the Minister of Environment and Forestry Regulation concerning Procedures for Testing Characteristics and Determining the Status of B3 Waste, the laboratory test results that can be accounted for are those proposed by Defendant I, which states that the waste located in the disputed object is not Spent Bleaching Earth (B3 Waste).11

Closing:

Based on the provisions of laws and regulations, in the environmental disputes, especially for pollution issue, it does prioritize evidence on the basis of scientific evidence. Bearing in mind that in order to understand the occurrence of pollution, judges need to have the ability to evaluate scientific evidence, and referring to Supreme Court Decree No. 36 of 2013 regarding Implementation Guidelines in handling Environmental Dispute Cases (“KMA 36/2013”), which explain that a scientific evidence is used in environmental cases which aims to increase confidence and provide guidance for judges to assess the authenticity of evidence,12 especially on environmental disputes.

Therefore, based on those convictions upon on scientific evidence, the judge can determine whether pollution has occurred in the environment.

Irsandi Rahmat Wijaya

Sources

  1. Article 1 Number 14 of Law 32/2009
  2. Article 1 Number 21 of Law 32/2009
  3. Article 1 Number 22 of Law 32/2009
  4. Siak District Court Decision No. 12/Pdt.G/LH/2022/PN SAK, page. 87
  5. Ibid
  6. Had been revoked with Ministry of Environment and Forestry No. 6 year 2021 regarding Procedures and Requirement to Manage Hazardous and Toxic Material Waste
  7. Siak District Court Decision No. 12/Pdt.G/LH/2022/PN SAK, page. 90
  8. Siak District Court Decision No. 12/Pdt.G/LH/2022/PN SAK, page. 91
  9. Siak District Court Decision No. 12/Pdt.G/LH/2022/PN SAK, page. 91
  10. Siak District Court Decision No. 12/Pdt.G/LH/2022/PN SAK, page. 91
  11. Siak District Court Decision No. 12/Pdt.G/LH/2022/PN SAK, page. 92
  12. Chapter IV letter d No. 2 Attachement of KMA 36/2013, page. 23