Invalid Laboratory Testing for Proving Seawater Quality Standards Changes
Jakarta, June 25, 2024
By: Laksda TNI (Ret.) Adv Soleman B. Ponto, ST, SH, MH, CPM, CP Arb
The ship MT Arman 114, which was sailing in the Exclusive Economic Zone (EEZ) of Indonesia, was detained by Bakamla. After waiting about four months, the ship was finally handed over to the Ministry of Environment and Forestry investigators, and subsequently to the Prosecutor's Office.
The captain of the MT Arman 114, Mr. Machmud, was charged with violating Article 98 of Law No. 32/2009 on Environmental Protection and Management, which states:
(1) Anyone who intentionally commits an act that results in exceeding the ambient air quality standard, water quality standard, seawater quality standard, or environmental damage criteria, shall be punished with a minimum of three (3) years and a maximum of ten (10) years imprisonment and a fine of at least IDR 3 billion (three billion rupiah) and at most IDR 10 billion (ten billion rupiah).
According to this article, actions that do not result in exceeding the "seawater quality standard" are permissible, or it is permissible to discharge ship waste into the sea as long as the "seawater quality standard" is not exceeded.
Evidence in Court:
To prove Mr. Machmud's guilt, the Ministry of Environment and Forestry investigators and the public prosecutor presented the results of a seawater sample test from Report No. 01/LAP/DPMP/VII/2023 dated July 25, 2023, from the Large Laboratory for Oil and Gas Testing (LEMIGAS), Ministry of Energy and Mineral Resources, validated by Muh Kurniawan, Ph.D. (Head of the Analytical Team). The conclusions were: Visually, there was an observed oil layer on the contaminated sample. The testing of the contaminated seawater sample showed values above other standards: The seawater sample with the code ARM was proven to be contaminated by oil and grease, TPH, and phenol content. (This means oil and grease, tph and phenol content were proven) The seawater sample was analyzed using fingerprint analysis from sample code tier-1 to tier-4 to match the extracted oil spill from the contaminated seawater sample with five (five) comparison samples taken from inside the MT Arman 114. Among these five types of samples, one sample was declared to MATCH the oil contaminant/spill sample, namely the sample with code MT-ARM-4, which is Oil Sludge taken from the slope tank. This is consistent with the Fingerprint Identification Report of the Oil Spill Sample in the North Natuna Sea Number 023/DPMR.4.1/VII/2023 issued by the LEMIGAS Geochemistry Laboratory, concluding: The biomarker ratio indicates that the ARM oil spill sample has the same characteristics as the MT-ARM-4 sample. The observation of 15 diagnostic ratio data "Key" Biomarkers between the ARM oil spill sample and the MT-ARM-4 comparison sample showed that all diagnostic ratios have small differences (CD<14>)
Response to Evidence Presented in Court:
a. First response evaluated from Paragraphs (2) and (3) of Article 20 of Law 32/2009 on Environmental Protection and Management:
The laboratory test results of the Seawater Sample in Report No. 01/LAP/DPMP/VII/2023 dated July 25, 2023, from LEMIGAS, Ministry of Energy and Mineral Resources, validated by Muh Kurniawan, Ph.D. (Head of the Analytical Team), FAILED TO PROVE THAT THE DISPOSAL OF OIL WASTE BY MR. MACHMUD OR MT ARMAN CAUSED A CHANGE IN SEAWATER QUALITY STANDARD. The test results of the seawater sample proved that the oil waste found in the seawater sample was identical to the oil waste in the slope on board MT Arman. Thus, it is proven that the MT Arman Ship Disposed of Oil Waste in the Sea. In other words, the evidence presented in court only proves that Mr. Machmud disposed of oil waste at sea. But it was not proven that there was a change in seawater quality standard.
The question is, was Mr. Machmud or the MT Arman Ship wrong when disposing of oil waste at sea?
I assure you that the actions of Mr. Machmud or the MT Arman Ship are NOT WRONG.
Paragraph (3) of Article 20 of Law 32/2009 on Environmental Protection and Management states that (3) Everyone is allowed to dispose of waste into the environmental medium. This means Mr. Machmud or the MT Arman Ship may dispose of waste into the sea according to paragraph 3 of Article 20 of Law 32/2009 on Environmental Protection and Management,
Mr. Machmud or the MT Arman Ship can only be blamed if it can be proven that the disposal of oil waste at sea resulted in a change in seawater quality standard or did not meet the environmental quality standard.
Since the sample test could not prove a change in seawater quality standard, Mr. Machmud or the MT Arman Ship must be legally released unconditionally.
b. Second response from the Legal Analysis of the Capture of the MT Arman 114 Ship:
- Element of the article. The important element of this article is every person and exceeding the seawater quality standard. In the context of MT Arman, there are two things: First: Mr. Machmud is accused of disposing of ship waste in the form of oil at sea Second: As a result of the disposal of oil waste according to Article 98 of Law 32/2009 on Environmental Protection and Management, two (two) things will happen, namely the seawater quality standard changes or the seawater quality standard does not change. To answer the first thing, I refer to Paragraphs (2) and (3) of Article 20 of Law 32/2009 on Environmental Protection and Management in full reads: (2) Environmental quality standards include: a. water quality; b. wastewater quality: c. seawater quality; d. ambient air quality e. emission quality; f. nuisance quality and g. other quality standards according to the development of science and technology. (3) Everyone is allowed to dispose of waste into the environmental medium with the requirements:
- meet environmental quality standards; and
- obtain permission from the Minister, governor, or mayor/regent according to their authority.
Thus, the act of Mr. Machmud Disposing of Waste at Sea is not wrong, as long as the seawater quality still meets the environmental quality standard. In other words, Mr. Machmud can only be convicted if it can be proven that the result of the oil waste disposed of at sea by Mr. Machmud caused a change in seawater quality standard.
c. Third response from the Sea Water Sampling Procedure aspect.
The seawater sampling procedure is regulated by the Minister of Environment and Forestry Regulation Number P.18/MENLHK/SETJEN/KUM.1/2/2017 on Standards and Competency Certification in the Environmental Field, which stipulates that officials conducting environmental sampling must have competency certification. This includes knowledge and skills in sampling procedures, handling, storage, and shipment of samples according to established standards. Article 4 of the Minister of Environment and Forestry Regulation Number P.18/MENLHK/SETJEN/KUM.1/2/2017 on Standards and Competency Certification in the Environmental Field reads in full: Samples not taken by certified officials can be considered invalid and materially, do not meet administrative requirements so they cannot be used as evidence in court.
The sample in court was received from the Commander of the National Ship Marore-322, Indonesian Sea Security Agency. This means the seawater sample was taken by the crew of the Marore ship. The document from Mr. Muh. Kurniawan, S.Si., MT., Ph.D. LEMIGAS, means that the sample was taken by officials from the Oil and Gas Agency. It needs to be checked whether the officials who took the seawater sample are certified or not. I am very sure that the ABK Marore does not have a seawater sample collection competency certificate. Likewise, LEMIGAS officials can be assured that they do not have competence, because their competence is in oil and gas sampling. If the officials are proven not to have a seawater sample collection certificate, then Mr. Machmud must be released because the sample submitted materially, does not meet administrative requirements so it cannot be used as evidence in court.
d. Response from the Method and Procedure aspect of taking seawater samples used as evidence in court.
The laboratory test results used as evidence in court can be ensured to use a method issued by the Ministry of Energy and Mineral Resources, whereas the Method for testing seawater samples is regulated by the DECISION OF THE MINISTER OF STATE FOR THE ENVIRONMENT NUMBER: 115 YEAR 2003 ON GUIDELINES FOR DETERMINING WATER QUALITY STATUS.
Article 2 of the Decision of the Minister of State for the Environment number: 115 of 2003 on the Guidelines for Determining Water Quality Status is clearly regulated that the method that must be used in determining Water Quality Status is the STORET Method or the Pollution Index Method.
Article 2 of the Decision of the Minister of State for the Environment number: 115 of 2003 on the Guidelines for Determining Water Quality Status reads in full: (1) Determining water quality status can use the STORET Method or the Pollution Index Method. (2) Guidelines for determining water quality status using the STORET Method are carried out according to the guidelines in Annex I of this Decision. (3) Guidelines for determining water quality status using the Pollution Index Method are carried out according to the guidelines in Annex II of this Decision.
Thus, taking seawater samples without using this method materially, does not meet administrative requirements so they cannot be used as evidence. Furthermore, the procedure for using the method is also regulated. One that must be carried out is the water to be measured must be carried out periodically from time to time.
II. Use Procedure Determining water quality status using the STORET method is carried out with the following steps:
Collect water quality data and water discharge periodically so as to form time series data. So it is very clear that the measurement of "seawater quality standard" cannot be done by just taking a momentary sample. But it must be done several times. That means you can't be arbitrary in measuring the 'seawater quality standard". Measurements carried out not in accordance with the DECISION OF THE MINISTER OF STATE FOR THE ENVIRONMENT NUMBER: 115 YEAR 2003 ON GUIDELINES FOR DETERMINING WATER QUALITY STATUS, materially, do not meet administrative requirements so they cannot be used as evidence.
e. Response from the aspect of the Laboratory that meets the competency standards for measuring seawater quality standards.
In Indonesia, there are several accredited laboratories authorized to conduct seawater quality examinations. Here are some of these laboratories:
- PT Advanced Analytics Asia Laboratories (A3 Laboratories) o Accredited by the National Accreditation Committee (KAN) and registered with the Ministry of Environment and Forestry (KLHK). o They provide seawater testing services in addition to testing wastewater, clean water, and surface water).
- CDULab - PT Cito Diagnostika Utama o Accredited ISO/IEC 17025:2017 by KAN and registered at KLHK. o CDULab provides testing services for various types of water, including seawater, river water, and wastewater.
- PT Greenlab Indo Global o Accredited by KAN and registered at KLHK, and implements various quality and environmental management systems such as SNI ISO 14001:2015 and SNI ISO 9001:2015. o Greenlab has a scope for testing surface water, clean water, seawater, wastewater, and ambient air.
- PT AdhikariLab Indonesia o Accredited by KAN with ISO/SNI 17025:2017 and registered at KLHK. o Provides seawater testing services and other environmental parameters. The Large Laboratory for Oil and Gas Testing (LEMIGAS), Ministry of Energy and Mineral Resources is not included in the laboratories that have the competence to measure seawater quality standards.
Thus, it can be concluded that the laboratory test results of the Seawater Sample in Report No. 01/LAP/DPMP/VII/2023 dated July 25, 2023, from LEMIGAS, Ministry of Energy and Mineral Resources, validated by Muh Kurniawan, Ph.D. (Head of the Analytical Team), materially, do not meet administrative requirements so they cannot be used as evidence.
f. Response from the aspect of the legal basis that must be used regarding the procedure for taking seawater samples for the purpose of proving changes in seawater quality standards in court in Indonesia.
The taking of seawater samples for the purpose of proving changes in seawater quality standards in court in Indonesia must comply with the regulations of the Minister of Environment and Forestry which regulate the environment and the procedure for proving seawater quality standards. Here are some regulations that are the legal basis for proving changes in seawater quality standards in court:
1. Government Regulation Number 82 of 2001 on Water Quality Management and Pollution Control:
· Regulates water quality management, including procedures for taking water samples to ensure compliance with established quality standards.
2. Minister of Environment and Forestry Regulation Number P.3/MENLHK/SETJEN/KUM.1/2/2018 on Seawater Quality Standards:
· Establishes seawater quality standards for various purposes, including fisheries, recreation, and marine ecosystem protection.
3. Indonesian National Standard (SNI):
· SNI 6989.59:2008 on Procedures for Taking Seawater Samples: Regulates the technical procedures for taking seawater samples that must be followed to ensure the accuracy and validity of the samples.
· SNI 06-2412-1991 on Procedures for Taking Water Samples: Provides general guidelines for taking water samples, including seawater.
4. Government Regulation Number 46 of 2016 on Procedures for Conducting Marine Pollution Control:
· Regulates procedures for controlling marine pollution, including procedures for taking samples for monitoring and law enforcement purposes.
5. Minister of Environment Regulation Number 6 of 2009 on Procedures for Taking Water Samples and Measuring Water Quality: o Regulates the procedures for taking water samples and measuring water quality that must be carried out by related agencies.
6. Minister of Environment and Forestry Regulation Number P.3/MENLHK/SETJEN/KUM.1/2/2018 on Seawater Quality Standards
· Regulates the standard of seawater quality that must be adhered to to protect and maintain marine ecosystems and ensure that human activities do not cause pollution that damages.
All these rules are regulated by the Minister of Environment and Forestry. However, the evidence used in court uses the regulations of the Minister of Energy and Mineral Resources.
Thus, the laboratory test results of the Seawater Sample in Report No. 01/LAP/DPMP/VII/2023 dated July 25, 2023, from LEMIGAS, Ministry of Energy and Mineral Resources, validated by Muh Kurniawan, Ph.D. (Head of the Analytical Team) materially, do not meet administrative requirements so they cannot be used as evidence.
g. Response from the aspect of seawater parameters that must be measured to prove changes in seawater quality.
The parameters of seawater that must be measured to prove changes in seawater quality are regulated by the Minister of Environment and Forestry Regulation Number P.3/MENLHK/SETJEN/KUM.1/2/2018 This regulation establishes seawater quality standards that must be adhered to for various purposes such as protecting marine ecosystems, fisheries, and recreation.
The elements regulated in this regulation include various physical, chemical, and biological parameters that must be monitored to ensure seawater quality. Here are some of the main elements that are regulated:
1. Physical Parameters: o Temperature: The temperature of seawater must be within a range that supports the life of marine biota.
· Turbidity: The turbidity level of seawater must be maintained so as not to obstruct the penetration of light needed by photosynthetic organisms.
· Total Suspended Solids (TSS): The concentration of suspended solids must be below the threshold set to prevent negative effects on marine biota and habitat.
2. Chemical Parameters:
· pH: The pH value must be within a safe range for marine biota (usually between 7.5 and 8.5). o
· Salinity: Salinity must match the natural conditions of the marine ecosystem in the area.
· Dissolved Oxygen (DO): The concentration of dissolved oxygen must be sufficient to support aquatic life (usually more than 5 mg/L).
· BOD (Biochemical Oxygen Demand): BOD must be below the threshold set to avoid significant oxygen reduction.
· COD (Chemical Oxygen Demand): COD must be within limits that do not disturb the balance of the marine ecosystem.
· Heavy Metals: The content of heavy metals such as mercury (Hg), lead (Pb), cadmium (Cd), and arsenic (As) must be below the threshold set to prevent toxicity.
· Nutrients (Nitrate and Phosphate): Nutrient concentrations must be controlled to prevent eutrophication that can cause algae blooms and damage the marine ecosystem.
3. Biological Parameters:
· Pathogenic Microorganisms: The content of pathogenic microorganisms such as E. coli and total coliforms must be kept below the threshold that can endanger human health and marine biota.
· Phytoplankton and Zooplankton: The presence and type of phytoplankton and zooplankton are monitored to determine ecosystem conditions
Sampling and Analysis Procedures o Laboratory Test of Seawater Sample in Report No. 01/LAP/DPMP/VII/2023 dated July 25, 2023 from the Large Laboratory for Oil and Gas Testing (LEMIGAS), Ministry of Energy and Mineral Resources, validated by Muh Kurniawan, Ph.D. (Head of the Analytical Team), clearly does not measure the parameters regulated by the Minister of Environment and Forestry Regulation Number P.3/MENLHK/SETJEN/KUM.1/2/2018, materially, does not meet administrative requirements so they cannot be used as evidence.
h. Response from the aspect of Sampling Competency Standards and Laboratory Competency Standards.
1. Sample Collection: Sample collection must be carried out according to the relevant Indonesian National Standards (SNI), such as SNI 6989.59:2008 on Procedures for Taking Seawater Samples, to ensure the accuracy and reliability of the data.
2. Laboratory Analysis: Seawater samples must be analyzed in a certified laboratory to ensure valid and accountable results. The laboratory must be accredited according to international standards such as ISO/IEC 17025. In the context of the MT Arman Ship, the seawater samples used as evidence in court were taken by the crew of the Marore ship, who are estimated not to be certified, and also measured or examined by a Laboratory that is not accredited as an accredited laboratory authorized to conduct seawater quality examinations. Thus, materially, they do not meet administrative requirements so they cannot be used as evidence.
Conclusion Flowing from the responses above, it is clear that the LHKH Investigators and Public Prosecutors cannot prove that the "element of change in seawater quality standards" has been proven, so Mr. Machmud and the Ship must be released by law.
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