Will FABA be Delisted from the List of B3 Waste?

Will FABA be Delisted from the List of B3 Waste?

                Indonesia’s environmental regulation that classifies mining wastes/ mining’s by-products including fly-ash and bottom ash (FABA) as toxic and hazardous (B3) wastes has been a stumbling block for many industries that utilize coal. Meanwhile, best practices in many countries validates that FABA are not listed as B3 wastes. In fact, FABA are widely used as construction materials. To add the complication, the Minister of Environment & Forestry (MoEF) regulation No. 10 of 2020 on the Charactistics Testing of B3 Waste enacted on early June 2020 does not solve the issue. To raise the concern, Impacted industries have sounded the issue to government institutions which later trigger a high level ministeral meeting to discuss the matter. Despite some positive responses from the government, doubts are still lingering on whether the MoEF will be seriously considering to delist FABA from the B3 waste or maintain the status quo.

Controversial Regulation            

                The issue arose before the Government enacted the controversial government regulation (GR) No. 101 of 2014 on B3 Wastes. Under the GR 101, FABA are categorized as B3 waste as listed in the Table 4 Appendix 1 with a waste code B409 and B440. It is deemed controversial as previously several ministers that had met with industri associations believed that such wastes should not be listed as the B3 wastes. But in fact, the GR issued barely few days before the SBY administration tenure came to the end. Since then, industries that impacted by the GR, including coal, electricity, cement, pulp, paper and others have been doing their best to comply with the regulation.

Industries have long been arguing that FABA should be delisted from the list of B3 waste. Industry proposed that after the FABA are categorized as non-B3 waste (delisted from B3 waste list), the FABA must be managed and can be utilized maximally and massively, and across entities for various purposes as follows: (a) utilized as backfilling (overburden) to prevent acid mine drainage and brick making for road construction. The testing that needs to be performed should be done by similar industry groups or through industry associations, because in general the FABA test results from the manufacturing industry and the electrical industry confirm that FABA is non-B3 waste; (b) utlization of FABA as construction material for the construction of road and floor infastructure building, brick making, and cement mixing involving central and regional government.

                Industry activities to manage the waste result in high cost financial consequences, ranging from IDR 50 billion to IDR 2 trillion (according to a study conducted by a group of industry associations under the coordination of APINDO). On the utilization rates, the use of fly ash ranged from 0% - 0.96% and for the utilization of bottom ash it ranged from 0.05%-1.98% which are relatively very small. In other countries, coal combustion products (CCP) are not categorized as B3 waste. Several countries such as the United States, China, India, Japan and Vietnam for example have already taken advantage of FABA, which are utilized as construction materials such as for cement mixture under road construction, bridges and embankments, ex-mining reclamation, as well as for the agricultural, forestry and fisheries with utilization rates ranging from 44.8% - 86% which is quite high. 

MinisterRegulation 10 of 2020

                Implementing regulation in the form of MoEF Regulation No. 55/2015 on the Testing for B3 Wastes Characteristic does not simplify the process which has been long claimed by the industries. To respon industry’s concern, the Ministry recently issued Regulation No. 10/2020 which replaced the Regulation No. 55/2015 but without involvement of impacted industry associations. This triggers actions from several associations to join hand raising their voices to the government. The associations under the Coordination of APINDO actively engaged with the Coordinating Ministry for Economic Affairs, the Coordinating Ministry for Maritime Affairs and Investment, Ministry of Industry, and Ministry of Energy and Mineral Resources.

                Industry associations claim The Regulation 10 of 2020 does not solve the problem faced by the industries where the coal burning process as the main activity, and also for the manufacturing industry (rubber, fertilizer, mining, coal, food and beverages, textiles and textile products, inorganic chemicals, pulp and paper, plastics, ceramic, cement, and palm oil and its derivatives and others) which process the coal burning as a supporting activity.This is due to the followings: (a) the process of the drafting the Regulation does not involve stakekholders in this case business players/industry associations; (b). the definition of FABA in the Regulation is not in line with GR 101 of 2014; (c) this regulates or limits technical matters such as material characteristics fuel, boiler type, and operating pattern of using the boiler, which apparently cannot be implemented in the field.

                ICMA itself has asked the MoEFR to provide clarity on technical licensing in the new regulation and also clarity on the special agency with the Ministry which involved. Certainty regarding the timing of the fly ash testing process is among the issues of concern of industry associations as there is no clear maximum time required. In addition, the availability of laboratories for subchronic tests is deemed as very limited and this creates a long queue for testing and create uncertainty on the timeline.           

Industry also argue that Article 13 paragraph 4 (b) of the MoER Regulation No. 10 of 2020 as very discriminatory because one type of B3 waste is subject to simplification of procedures the characteristics test of B3 waste is fly ash from the coal burning process at the facility electric steam power plant. To the best of our knowledge, there is no difference in the combustion process of coal either carried out by the Coal-Fired Power Plant or boiler. So the regulation should not distinguish the fly ash from the generating industry as the main activity or supporting activity. Likewise, with bottom ash produced from the coal burning process (CFPP) or boiler, should not be treated differently from fly ash.

                Industry’s ultimate aim to have FABA delisted from the B3 list. In doing so, industry associations propose that the government is simply removing FABA from the B3 waste by changing the Table 4 in Annex I of the GR (PP) 101 of 2014. However, it seems that the government not yet ready to take a breakthrough initiative which has been highly expected by the industries. Instead, the government, in this case the MoEF, is likely to revise the Regulation 10 of 2020 alternatively. Thus the likelihood of the revision of the GR No. 101 of 2014 is apparently still a long way to go.

                The government responded to the industry’s concern by hosting a high level limited ministerial meeting on July the 22nd. The meeting was chaired by the Coordinating Minister for Economic Affairs and attended by the Coordinating Minister for Maritime Affairs and Investment, Minister of Industry, Ministry of Energy and Mineral Resources and Minister of Environment and Forestry.  One of the key recommendations of the meeting was to instruct the MoEF to revise the Regulation No. 10 of 2020. Some ministers in the meeting reported on the best practices of the utilization of FABA in other countries and suggested the need of a special treatment of the wastes.

The MoEF reacted immediately after the 22 July meeting and invited associations for a virtual meeting on the 24th of July. The meeting chaired by the Director General of Waste and B3 Management Vivien Rosa and attended by ICMA and invited associations. In the meeting, the Ministry sought inputs from the attendees and will consider the proposals in the drafting of the revision of the MoEF Regulation No. 10 of 2020. ICMA which support government initiative in managing  B3 wastes suggested that the government should prove that the Regulation 10 convince the industry that the new regulation provide more benefits or better than the previous regulation.

As this article is written, there is no update on the drafting process. This situation raises concern among the industry associations that the upcoming revision of the Regulation 10 of 2020 may not be significant (no major changes) as previously expected. Therefore, it is interesting to see what will be the reaction from the MoEF which has long been resisting the idea of delisting FABA as B3 wastes eventhough many best practices on the treatment of FABA in other countries have been acknowledged by some government institutions. Strong commitment from the government is needed to help industries in dealing with Covid-19 pandemic. And this commitment can be exemplified by delisting FABA from the list of B3 wastes in order to boost industry’s activities.

(*) to be published in Coal Asia Magazine’s September edition

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