Cetesb (São Paulo State Environmental Company) approved new procedures for the incorporation of reverse logistics in the state environmental licensing process, by means of the Board Decision (DD) No. 114/2019/P/C, published on October 25th of this year. The rules enter into effect in November, 30 calendar days after the date of publication.
The new DD No. 114/2019, republished with corrections on October 30, revoked Cetesb DD No. 76/2018. In compliance with article 4 of State Bureau of the Environment (SMA) Resolution No. 45/2015, which defines the guidelines for implementation and operationalization of post-consumer liability in the state of São Paulo, DD No. 114/2019 establishes that the fulfillment of the procedures provided for for structuring, implementation, and operation procedures is a requirement for issuing or renewing the operating license.
Under SMA Resolution No. 45/2015, reverse logistics systems should be implemented in the state of São Paulo for post-consumer product and packaging waste with significant environmental impact. Such products and packaging must be returned independently from the public urban sanitization and solid waste management service. In addition to those sectors already covered by article 33 of Federal Law No. 12,305/2010 (Brazilian Solid Waste Policy - PNRS), SMA Resolution No. 45/2015 included the following sectors: edible oil; automotive lube oil filter; home remedies, expired or in disuse; packaging of food, beverages, toiletries, perfumery, and cosmetics; and real estate paints.
Waste covered by DD 114/2019 is that which is generated by the final consumer, thus defined as “the one who purchases the product or service for person consumption, and does not use it as an input in the production process, in the rendering of services, or for replacement in the market.” (item 1.6 of the Sole Schedule of DD No. 114/2019).
The implementation of reverse logistics by manufacturers, importers, distributors, and traders of such products and packaging is linked to Cetesb's ordinary environmental licensing. Demonstration of compliance is a requirement for issuing or renewing operating licenses. It is also stated as a technical requirement, according to the guidelines and conditions set forth in DD Cetesb No. 114/2019.
Fulfillment of obligations may occur through the signing of a Reverse Logistics Commitment Agreement (TCLR) or individual or collective instruments. In the case of the TCLR, those responsible for them shall enter the Reverse Logistics Plans (PLR) into the e-environment system (while the Sigor system is not yet available), demonstrating by March 31 of each year the achievement of the goals established through the Annual Results Report.
Due to the provisions of Federal Decree No. 9,177/2017 (Equal Protection Decree), if the company chooses not to sign the TCLR, it must meet proportional targets. In this case, registration of the PLR in the e-environment system must occur concurrently with the request for renewal of the venture’s Operating License.
The procedure approved by the DD refers to the first stage of reverse logistics systems, expected to last until December 31, 2021. Annual results reports for the year 2021 must be delivered by March 31, 2022. As of the following year, the quantitative and geographic goals will be evaluated again, through a new Cetesb DD.
In setting the targets, Cetesb relied on existing benchmarks and the respective quantitative and geographic targets, taking into account sectoral agreements and federally agreed-upon consent orders, specific laws applicable, existing TCLRs, and call for sectoral agreements. In the case of electronic products specifically, the targets were based on the draft of the Federal Sector Agreement, already submitted for public consultation and signed at the end of October, and the TCLR of the sector in force in São Paulo.
In DD No. 114/2019, the concept of “manufacturer” was regulated, which was generally provided for in Federal Law No. 12,305/2010. Manufacturers are considered to be the holders of the brand of their respective products and/or those who, on their behalf, fill in, assemble, or manufacture the products (topic 1.3 of the Sole Schedule of DD No. 114/2019). However, there is a provision for manufacturers who do not own a particular brand to ensure that their product and/or packaging is covered by a reverse logistics system. Otherwise, they will be responsible for the reverse logistics of the respective products or packaging.
The persons responsible for the reverse logistics systems were also assigned the obligation to keep a copy of the proof of environmentally appropriate final destination for a period of five years. In the case of sale of recyclable materials from packaging in general, this proof will be done through invoices and/or Certificate of Recycling of General Packaging (CRE). For the purpose of meeting reverse logistics tarets, the CRE must be individualized by project subject to environmental licensing and will have a maximum validity of one year. The respective tax invoice shall be issued only by proving reinsertion of the packaging into the production cycle for transformation into an input or new product, via approval of the parties.
Cetesb made it explicit that, for waste from selective municipal collection (including waste that goes to waste pickers' cooperatives, whose rejects are disposed of by the municipal sanitation service), manufacturers, importers, distributors, or traders should promote compensation for waste from the city government, in accordance with a commitment agreement or prior sectoral agreement that establishes mechanisms for such compensation.
Cetesb DD No. 114/2019 does not intend to regulate sectors that already have a commitment agreement or sectoral agreement signed. It only requires compliance with it for issuing environmental permits, in addition to formalizing procedures and establishing complex criteria for the implementation of reserve logistics under state environmental licensing.
 Article 33. They are required to structure and implement reverse logistics systems, upon return of products after consumer use, independently of the public urban sanitization and solid waste management service, manufacturers, importers, distributors, and traders of:
I - pesticides, their wastes and packaging, as well as other products whose packaging, after use, constitutes hazardous waste, observing the hazardous waste management rules provided for by law or regulations, rules established by Sisnama, SNVS and Suasa, or in technical standards;
II - batteries;
III - tires;
IV - lubricating oils and the waste and packaging thereof;
V - fluorescent, sodium, and mercury vapor and mixed light lamps;
VI - electronic products and their components.