Ecological Observation and Wetlands Conservation (ecoton) sued the Provincial Governor and BAPEDAL (environmental management agency) of East Java for neglecting to enforce existing water quality laws and ignore the dumping of untreated industrial waste into Surabaya River. The main support is from NGO called LBH Surabaya as a legal aid organization that served as our legal representative for free. They help us to prepare all the legal documents for the court. We also have many support from some community groups, NGO friends, university researchers, media and even from some ‘good’ BAPEDAL staffs as well. They gave us supporting words and suggestion. But, Many of public components were pesimistic to our legal action since they still doubt on the legal institution process and courts in Indonesia.
POWER OF COURT
The lawsuit was the first of its kind in East Java against a Governor and which sought to change public policy. The court ordered the Governor to formulate a decree and set a total maximum daily load for the Surabaya River, as well as establish a system for monitoring the maximum daily load. Both of these orders must be in place within the next twelve months. This is a win for Ecoton, communities around the Surabaya and the environment, all which are negatively affected by the high level of water pollutants, especially mercury.
the Total Maximum Daily Load (TMDL) is a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant’s sources. Water quality standards are set by States, Territories, and Tribes. They identify the uses for each waterbody, for example, drinking water supply, contact recreation (swimming), and aquatic life support (fishing), and the scientific criteria to support that use. A TMDL is the sum of the allowable loads of a single pollutant from all contributing point and nonpoint sources. The calculation must include a margin of safety to ensure that the waterbody can be used for the purposes the State has designated. The calculation must also account for seasonal variation in water quality.
Surabaya river is a source of water that is in four regency/municipal and must be regulated with the provincial regional regulation (according to the Government regulation of the republic of Indonesia Number 82 of 2001) but unfortunately Since 1987 East Java Provncial government never stipulated the water classes for Surabaya river. We ask the government to set up the new water classes for Surabaya River that suitable with present condition. Our recent win in the dispute against Provincial Governor of East Java is important to the community and sets a precedent in East Java. It was a great success that the Judges Committee in the trial support Prigi’s Claims and ordered Governor to commence the regulation for proposed water use of Surabaya River that already old fashioned, since the regulation was made in 1987 and the present situation is not applicable anymore. The Environmental Impact Management Board in East Java Province also agree to assess total maximum daily load of Surabaya River and commence the total maximum daily load of Surabaya River to be used as reference for further industrial development plan and releasing waste disposal permit in Surabaya River watershed. Even more he has influenced MUI or Indonesian Islamic Leader Board to issue Fatwa or moslem commandment that forbid people to dispose waste directly without treatment into Surabaya River.
It is ultimately expected that the governor or regent, according to their authority, will take action for a polluter to be prosecuted. The problem of accountability for steps up to that point is very unclear. Provincial authorities hold municipal government responsible for not having commitment or capacity to address the issue of urban and industrial pollution, while municipalities and other stakeholders consider the governor too inaccessible to call upon to address it. There is also a problem of weak penalties for those industries that are prosecuted, which does not make polluting prohibitive. When asked how they might envision the possibility of tackling industrial pollution, PJT I staff would like to see the polluter-pays-principle as an instrument to encourage industries to limit their level of pollution to that agreed to in their license. Monitoring, charging a fee for pollution, and having a strong pollution law would all help to improve treatment facilities and to give industries incentive for treatment. There is a legal basis for water pollution fees in Government Regulation No. 6/1981 (and also PP 82/01), which stipulates that a contribution to fund water resources infrastructure O&M can be collected as a payment from those industries whose activities have polluted water bodies within PJT I’s jurisdiction. The national government is currently trying to set up further enabling legislation for regional and local government wastewater disposal licensing and fee collection for all river watersheds. Hopefully this will be piloted in the Brantas watershed with PJT I playing a major operational role through an operational concession from the Provincial Environmental and Pollution Control Office. In this context it is important to note that the water supply companies, which would usually have a major incentive to improve wastewater treatment, are only responsible for water supply. Thus, their incentives, like those of every other stakeholder, lie in hoping for the province to undertake needed investments and to enforce regulations.
The decision court against government is the first in Indonesia that order the Governor to assess TMDL of Surabaya River. This decision is a small positive change toward river protection in Indonesia. Many people in Indonesia will monitor this decision and its enforcement.
Generally, the Governor through BAPEDAL East Java will take legal action against the polluter industries. But the law enforcement for the polluter industries is not effective due to corruption by some officers in legal institutions. Some legal process for pollution cases often stopped by the police or court, due to lack of evidence, such as the cases of Surabaya River pollution by a paper factory and the decision tend to be unfair since the pollution impacts by the factory is clearly visible and the paddy field used the water has destructed and failed to produce rice. If the case end in court, the result of court decision do not prevent the polluter industry to re-pollute because the fines is very cheap that maximum charge is only IDR 5 million or USD 560. The companies prefer to pay money to the police or pay the fines than to provide a lot more money to build and operate a waste water treatment plan. There was a case in Semarang City at Central Java Province where the court won the claims of a fish pond farmer against an industry that the company has to pay compensation for the fish pond pollution total IDR 1,1 billion.