Beveridge & Diamond
 

Brazilian House Passes Sweeping Waste Policy Bill

Beveridge & Diamond, P.C., March 22, 2010

On March 10, 2010, Brazil’s Chamber of Deputies passed the National Solid Waste Policy Bill ("Política Nacional de Resíduos Sólidos," PL 203/1991; “Omnibus Waste Bill” or the “Bill”) after twenty years of debate.  If passed by the Senate and signed by the President in its present form, the Bill would affect a host of Brazilian industries and impose new requirements on certain manufacturing sectors to minimize and manage the wastes associated with their products and operations.

Proliferation of Waste and Waste Laws

Brazil has no national framework solid waste law, though its Congress has debated versions of the Omnibus Waste Bill intermittently since at least 1989.  The original predecessor to the current Bill was introduced in 1991, though it has been amended, modified, and replaced with revised texts approximately one hundred times in the intervening years.

In the absence of a federal policy, many of Brazil’s twenty-six states and its federal district have acted individually to fill the gap.  Many municipalities, particularly the more populous and developed cities such as São Paulo, have responded to landfill capacity problems with laws, some of which are quite progressive, including, for example, private participation in recycling programs.  The result is a patchwork of waste policy regimes in which some states apply a light regulatory touch while others have legislated requirements for certain industries.  In the field of electronic wastes (“e-wastes”), for example, eleven states have no specific policy, six states have enacted laws that may be applied to e-wastes, while the other nine states and the federal district have each enacted express e-waste laws or provisions, which vary widely in their scope and the obligations they impose.

To complicate matters further, on the federal level, both the Congress and the environmental policy council (“CONAMA”) have passed sector-specific initiatives to address waste streams of particular concern, such as those generated by pesticides, tires and batteries.  Implementation remains inconsistent and incomplete for most of the laws and policies enacted, leaving public and private actors alike in a state of uncertainty as to the nature and extent of their effective obligations in Brazil.

Principles of the Proposed Policy

As with many Brazilian environmental laws, the Bill recites its guiding principles and policy objectives. (Arts. 6, 7)  Among the more significant of these is the principle of “shared responsibility for the life cycle of products,” under which the Bill theoretically imposes responsibilities on consumers and government, in addition to commercial enterprises, for the management of wastes generated by the production and consumption of goods.  Other potentially significant principles include:

  • “reasonability and proportionality,” which could serve to dampen the impact of some of the Bill’s apparently draconian provisions, such as extended producer responsibility (“EPR”) for certain packaging;
  • the “precautionary principle,” which favors stricter regulation in the absence of scientific certainty regarding the nature and extent of environmental impacts; and
  • the “polluter pays” principle, ubiquitous in contemporary Brazilian environmental laws, which may inform the Bill’s ambiguous site remediation provisions (see below).

“Reverse Logistics” for Electronics and Other Products

Consistent with a recent trend in Latin America and elsewhere, the Bill would impose some form of EPR for a number of end-of-life products.  The Bill denotes its most comprehensive EPR requirements with the term "reverse logistics" ("logística reversa"), a phrase that roughly implies that the commercial distribution network for a given product is to be used in reverse as a conduit for producer “take-back” of post-consumption wastes.  The reverse logistics system would bring intensive waste management obligations for manufacturers, importers, distributors and merchants.

Like several solid waste policy laws recently enacted by certain Brazilian states, the Bill singles out certain product categories for special waste management (Art. 33):

      (a)  pesticides and their packaging, and other packaging that constitutes a hazardous waste;
      (b)  batteries;
      (c)  tires;
      (d)  lubricants and their packaging;
      (e)  fluorescent bulbs, sodium and mercury vapor bulbs, and mixed-light bulbs; and
      (f)  electronic products and their components.

Existing federal EPR requirements apply to the first four of these general categories, although the particular requirements and the scope will likely be expanded through the Bill.  The inclusion of electronics and certain classes of bulbs in the list, however, would mark a dramatic expansion of the products and companies subject to mandatory take-back programs.

Reduction and Recycling of Packaging

In addition to the application of reverse logistics to packaging that constitutes a hazardous waste, the Bill would also impose broad requirements on packaging in general.  (Art. 22)  First, the Bill would require that packaging be restricted to no more than the volume and weight required to protect and sell the product contained.  Second, the Bill would require that packaging be designed for reuse, to the extent that reusable packaging is technically viable and compatible with the product.  Third, the Bill would require that packaging be recycled in the event that reuse is not possible.  The Bill contains no provision that any packaging could be disposable.

The Bill assigns responsibility for packaging requirements to: manufacturers of packaging, sellers of packaging materials, and all others who place packaging in the chain of commerce – implicitly, this would include all sellers of packaged products.  As the requirements are at once far-reaching and vague, and responsibility diffused among many actors, the delineation of such requirements and the mechanisms for enforcing them will likely require significant elaboration.

Waste Management Plans

The Bill would require all industrial facilities, mining operations, health service providers, public sanitation services, construction companies, and transportation terminals to submit detailed waste management plans.  (Art. 20)  In addition, the Bill contains open-ended provisions that could be used to impose the management plan requirement broadly across the agricultural and silvicultural sectors, and to many other commercial establishments and service providers based on the hazardousness, nature, composition or volume of the wastes they generate.  The Bill would require that the plans be implemented and monitored through a designated, duly authorized technical professional, and that information be reported regularly both to authorities and to a new national waste management information service.  (Arts. 22, 23)  Waste management plans would also be integrated into the environmental licensing process.  (Art. 24)

Site Remediation

The Bill includes provisions for remediation of contaminated sites that appear to provide statutory support for implementing the recently released federal site remediation standards.  CONAMA issued Resolution 420 on December 28, 2009, creating a set of procedures and technical criteria for the management of contaminated sites, but lacking specific authority for environmental agencies to impose the requirements.  Under Article 41 of the Omnibus Waste Bill, government agencies would be authorized to decontaminate “orphan” sites ("áreas orfãs contaminadas"), then recover the costs from parties later determined to be responsible for the contamination, process apparently modeled on the U.S. Superfund program.  The Bill would also authorize government agencies to institute financial mechanisms and other incentives to remediate “non-orphan” contaminated sites, although it provides no details on this point.  (Art. 42)

The Road Ahead

Following passage by the Chamber of Deputies, the Bill proceeds to the Senate, where the current level of support is unclear.  Senate approval would send the Bill to the President, who could veto either the entire Bill or individual provisions.  The Brazilian Constitution empowers the Congress to override such vetoes by a simple majority vote of both houses.  While the Bill has finally gained some momentum after two decades of debate, its future as a law remains uncertain. In the meantime, the work of CONAMA, the states and key municipalities will likely continue to dominate Brazilian waste policy and regulation.

The text of the approved Omnibus Waste Bill ("Projeto de Lei No. 203, de 1991") is available here.  For additional information, please contact Russell Fraker at rfraker@bdlaw.com, Madeleine Boyer Kadas at mkadas@bdlaw.com or Lydia González Gromatzky at lgromatzky@bdlaw.com

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