Published in MIGALHAS: https://www.migalhas.com.br/dePeso/16,MI288960,41046-Licenciamento+ambiental+no+Estado+de+Sao+Paulo+e+a+logistica+reversa
Published on Wednesday, October 10, 2018.
On April 3, 2018, CETESB – the São Paulo State Environmental Company – issued Board Decision (DD) 076/2018/C, published on April 4, 2018, establishing the procedures required to implement reverse logistics within environmental licensing.
The DD entered into force 60 (sixty) days after its publication, and from then on operating licenses are only issued or renewed if compliance with the legal requirements concerning the obligation to structure, implement and operate reverse logistics systems is demonstrated.
There will be sector targets to be met and deadlines for compliance with the new rules, ranging from October 2018 to early 2021, depending on the type of facility and the size of the built area within the scope of environmental licensing.
Companies may meet their obligations regarding the implementation of reverse logistics systems either by joining the Reverse Logistics Commitment Agreement (TCLR), entered into by the State Department of the Environment, CETESB and business sector representatives, or by structuring and implementing an individual or collective reverse logistics system, subject to the conditions established by the Decision.
For the purposes of the new rule, “manufacturers” include the owners of the brands of the respective products, as well as those who fill, assemble or manufacture the products on their behalf.
The new Board Decision applies to manufacturers or those responsible for importing, distributing or selling products subject to reverse logistics under SMA Resolution 45/151, provided that they are subject to environmental licensing by CETESB.
The decision is based on the National Solid Waste Policy2 (PNRS), under which the State of São Paulo, through its State Solid Waste Policy3 (PERS), establishes measures aimed at consolidating the guidelines and instruments introduced by the PNRS.
Among them, the effective implementation of Reverse Logistics (RL) is one of the key elements for putting the PNRS into practice and ensuring its success and continuity as a public policy.
In the State of São Paulo, SMA Resolution 45/15 pointed to one of the ways of addressing this challenge: linking Reverse Logistics (RL) to environmental licensing, which was achieved through CETESB Board Decision 76/18 (DD 76/18), issued shortly after federal Decree 9,177/174, which regulated Reverse Logistics (RL) at the federal level.
Under DD 76/18, the implementation of RL became an environmental condition for the issuance or renewal of Operating Licenses (LO) issued by CETESB. In practice, a significant share of the companies licensed by the agency will have to demonstrate the implementation of RL in their production systems if they want their licenses approved or renewed.
In short, DD 76/18 establishes:
- Scope;
- Procedures;
- Deadlines;
- Targets.
Scope:
All those responsible for manufacturing, importing, distributing or selling the products must implement RL, in accordance with the threshold set out in article 2, sole paragraph, of SMA Resolution 45/15. Companies involved in the production of architectural paints are added to this list, on the same terms as the others.
In addition, DD 76/18 treats as manufacturers all those responsible (i) for the brands of those products; and (ii) for filling, assembling or manufacturing products on behalf of their manufacturer.
Applicable procedures:
A company required to implement RL will have the following options: (i) to join the Reverse Logistics Commitment Agreements5 (TCLR) entered into by CETESB, SMA and trade associations; or (ii) to establish its own RL system offering at least the same conditions as those set out in the TCLRs. Companies may also join together to create a collective RL system.
As for the disclosure of these actions, in both cases information will be made available through the State Online Waste Management System (SIGOR) – Reverse Logistics Module, whose platform will be launched shortly.
Deadlines:
As for deadlines, DD 76/18 set 2021 as the final deadline for these companies to complete the incorporation of RL into their production processes. However, this does not mean that all companies will have an “amnesty” until that date, since for some of them the obligation starts in the last quarter of 2018.
The logic of DD 76/18 is therefore as follows: the more hazardous the product/waste and the larger the production area – in m² – the sooner the company must adapt.
Targets:
When it comes to RL, the definition of return targets for the product/waste produced is the benchmark for how ambitious the public policy is – and how challenging it will be to comply with it. In the case of São Paulo, DD 76/18 was anything but timid, since two distinct and complementary targets were created, namely:
- Quantitative: by units to be collected;
- Geographic: related to a percentage of territorial coverage.
The combination of these two targets reveals the State’s objective: to put RL into operation throughout its territory by 2021.
In addition, the measure will prevent companies from focusing their efforts only on specific regions, such as the capital and metropolitan areas – where, in theory, it would be easier to implement RL because they have better infrastructure – ensuring coverage of every location reached by their products.
The challenges related to RL are only just beginning. It is still up to the government, among other measures, to make the SIGOR – Reverse Logistics Module available. The business community, in turn, must integrate RL into its environmental management systems in an effective and balanced way, with due legal consideration of the role of each party involved in managing the waste generated and a strategy to ensure that implementation is safe and economically viable.
Proof of reverse logistics as a condition for obtaining an environmental license applies to facilities that manufacture, or are responsible for importing, distributing or selling, certain products, provided that they are subject to ordinary environmental licensing by CETESB, and must take place progressively, in successive stages, as follows:
- a) within 180 days of the publication of CETESB DD 076/2018/C:
a.1) Automotive lubricating oil, for the reverse logistics of used and contaminated lubricating oil (OLUC) and its plastic packaging;
a.2) Automotive batteries;
a.3) Portable batteries and cells;
a.4) Fluorescent, sodium vapor, mercury vapor and mixed light lamps;
a.5) Scrap tires;
a.6) Pesticides, for the reverse logistics of their empty packaging;
a.7) Architectural paints, for the reverse logistics of their empty packaging.
- b) Within 180 days of the publication of CETESB DD 076/2018/C for facilities with a built area of more than 10,000 m². From 2019 for facilities with a built area of more than 1,000 m², with the requirement applying upon application for or renewal of the operating license. From 2021 for all facilities subject to ordinary licensing, with the requirement applying upon application for or renewal of the operating license:
b.1) Edible oil;
b.2) Automotive lubricating oil filters;
b.3) Food products, for the reverse logistics of their packaging;
b.4) Beverages, for the reverse logistics of their packaging;
b.5) Personal hygiene, perfumery and cosmetic products, for the reverse logistics of their packaging;
b.6) Cleaning products and similar, for the reverse logistics of their packaging;
b.7) Household electrical and electronic products and their components, with a voltage of up to 240 volts;
b.8) Expired or unused household medicines for human use.
Reverse logistics systems may be implemented and operated either individually by companies or – preferably – collectively through a sector representative entity or a managing entity. In addition, they must ensure the environmentally sound final disposal of 100% of the products and packaging returned.
Facilities of companies that have joined one of the Reverse Logistics Commitment Agreements entered into by the State Department of the Environment (SMA), CETESB and representatives of the respective business sectors will be considered compliant with CETESB DD 076/2018/C, provided that the reverse logistics obligations assumed under those agreements are being met.
In any case (individual or collective systems), the Logistics Plans and the Annual Reports with operating results must be submitted to CETESB by completing the respective forms in the Reverse Logistics Module of SIGOR – the State Online Solid Waste Management System.
Finally, non-compliance with CETESB DD 076/2018/C will result in the penalties provided for in environmental legislation, as well as in the non-renewal of the operating licenses of companies required to adopt reverse logistics in their activities.
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1 SMA Resolution 45, of June 23, 2015. Published in the DOE of 06-24-2015, Section I, p. 43. Defines the guidelines for implementing and operating post-consumer responsibility in the State of São Paulo, and makes related provisions.
2 Law 12,305, OF AUGUST 2, 2010. Establishes the National Solid Waste Policy; amends Law No. 9,605, of February 12, 1998; and makes other provisions.
3 Law 12,300, of 03/16/2006. Establishes the State Solid Waste Policy and defines its principles and guidelines.
4 Decree 9,177, of October 23, 2017. Published in the Official Gazette of the Union – Section 1 – 10/24/2017, Page 1. Regulates art. 33 of Law 12,305, of August 2, 2010, which establishes the National Solid Waste Policy, supplements art. 16 and art. 17 of Decree 7,404, of December 23, 2010, and makes other provisions.
5 See the list by following this link: click here.
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*Luiz Carlos Aceti Junior is a lawyer practicing Environmental Law and a partner at Aceti, Senise & Paiva Sociedade de Advogados.
*Walter José Senise is a lawyer practicing Environmental Law and a partner at Aceti, Senise & Paiva Sociedade de Advogados.
*Diogo de Mello Paiva Ferreira is a lawyer specialized in Environmental Law, Strategic Sustainability Management and Environmental Management, and a partner at Aceti, Senise & Paiva Sociedade de Advogados.