AlAfghani, MM and Paramita D, Polychlorinated Biphenyls (PCBs) Phasing-Out Regulation in Indonesia, Final Report. All rights reserved.
B3 waste treatment license for storage activities127 lasts for 5 years and can be extended128. The maximum durations for the B3 waste storage are 129:
In the eventthe storage of the B3 waste beyondthe time period,the license holderof B3 waste management for B3 waste storage activities shall utilize the B3 waste, treat/process the B3 waste and/or hoardedthe B3 waste, and/or transferthe B3 waste to other parties which are130: B3 waste collector, B3 waste utilizer, and/or B3 waste horder131. As explained above, PCB is considered as B3 waste category 1 from the non-specific source. It is important to note that, the period of the storage of the B3 waste is shortened as the risk of hazard increase with the increase of amount.
Administration sanctions applied for the violation of the above provisions. The administrative sanctions consist of: a) written notice, b) government coercion (paksaan pemerintah), c) the freezing of the B3 waste management license for the B3 waste storage activities132.
In one induction meeting133, official from one region stated its concern that they do not have sufficient storageand B3 waste treatment facilityavailable in the city. Therefore, the BLH may ask companies that have equipment (transformers) containing/contaminated with PCBs to keep/store them in their companies until the facilityis available. However,the problem is that the 90-day limit for temporary storage is a regulatory limit, in which, upon the elapse of such limit all waste must be processed for disposal. Nevertheless, the absence of a PCB disposal facility in Indonesia meantthat the 90-daylimit would inevitably be surpassed. In addition, this may trigger administrative and legal actions towards the company if a contamination occurs. Indonesian regulation adheres to the strict liability principle in the event of B3/B3 waste contamination.
One of the options is to exercise discretion (of not enforcing) the lapse of time limit. However, such discretion may cause complicated legal problem as explained below.
In addition, such discretion could be problematic under The Law on Government Administration (Law 30 Year 2014, hereinafter the “GovAdmin Law”). The GovAdmin law defines discretion as decision or action whichare taken when dealing with concrete matters.134 This is further detailed in Chapter VI which is dedicated to regulating discretion. Article 23 of the GovAdmin Law limits discretion into four possibilities (i) when laws and regulation provide options for decisionor action, (ii) when laws and regulations are silent, (iii) laws and regulations are incomplete are unclear and (iv) the decision or action needs to be taken stagnation in government, for the greater good. In this case, possibilities of (i), (ii) and (iii) are closed, since GR 101 does not provide option, is not silent and very clear about the time limit. Only (iv) becomes a possibility, nevertheless, the GovAdmin Law elucidation clarifies that government stagnation occurs, for example, in major events such as disaster or political turmoil, which renders the government to be dysfunctional. Evidently, this condition is not applicable to the case at hand. As such,laws and regulations does not seem to providelatitude for discretion in this case.
It needs to be mentioned that discretion couldbe rendered void or voidablefor reasons listed in Articles 30 and 31. Article 32 mentioned that a discretion could be voidable if they are, among other,(i) not in accordance with the purposeof the authority or (ii) is againstthe good governance principles. Indeed, during the drafting of the GR 101 presumably, the condition where wastes are stockpiling due to the absence of treatment facilities (and therefore require more time to stockpileuntil the facilities are in place)was not anticipated. Thus the discretion was based on a good intention to facilitate compliance. On the other hand, the regulation provides option to export the B3 waste in the event that the B3 waste producercannot process the waste or the facility to utilise/treat/process the waste is not exist in Indonesia135 It could be argued in the Courtthat the strictliability principles and the polluterspays principles require the waste to be exported – at the company’s cost. Thus, it can be argued, that the government should not facilitate further delays of such action – especially by extending the time limit through discretion – and as such, (it can be argued that) the discretion is considered to be against the good governance principles. This is of course a very subjective argument as it is also possible to counter-argue by suggesting that if this time limitis directly enforced,then the whole phasing-out process as required by the Stockholm Convention would not be possible – and thus a policy objective cannot be attained.
Finally, one of the most important legal risks in exercising such discretion is not administrative but liability. As previously mentioned, the treatment of B3 wastes is different given the polluters pays principles and the strict liability principle. If a contamination occurs during the period that the time limit for storage is extended through a discretion, then the government could also be held liable for issuing a policy which contradicts a regulation. The motive for giving time limit for storage is to lessen the risk. If the government extends the time limit, it means that it has willfully and knowingly, extend the risk of contamination in direct contradiction with the regulation.
Especially if formulated in a written policy, could expose the government to lawsuit, in case a contamination occurred. This is because the nature of hazardous substances which entails strict liability as previously mentioned.
127 Izin pengelolaan limbah B3 untuk kegiatan penyimpanan limbah B3
128 GR No.101, Article 21
129 GR No. 101, Article 28 (1)b
130 GR No. 101, Article 29(1)
131 GR No. 101, Article 29(2)
132 GR No. 101, Article 243
133 Induction Meeting, Serpong, 24 February 2016
134 Undang Undang Republik Indonesia Nomor 30 Tahun 2014 Tentang Administrasi Pemerintahan. See Article 1 (9)
135 GR No. 101, Article 123 (1), (4)