The new Basic Sanitation Framework, Law 14026/2020 has assigned to ANA (National Water and Basic Sanitation Agency), the role to develop reference rules for the regulation of public basic sanitation services. The rules published by the Agency will serve as a parameter for regulation at regional and local levels, in order to guarantee greater uniformity to the regulation practiced around the country.

In March, 2021, ANA made available for public consultation, its reference rule, which deals with the institution of charging for the provision of the public service of urban solid waste management.

In Brazil, the regulation of sanitation services is carried out by state, regional or municipal agencies, so that the very figure of the “reference rules” is a novelty in the sector. In this sense, the reference rule in public consultation, since it is the first one, will serve as a basis for future reference guidelines.

The object of the rule derives from the new wording of article 35, §2, of the National Basic Sanitation Law, by the new Regulatory Framework which establishes a period of one year for holders of solid waste management services to propose collection instruments to charge for the provision of services, under the penalty of waiving revenue under the terms of Article 14 of the Fiscal Responsibility Law (FRL).

The process of construction of the reference rule began in October 2020, shortly after the publication of the New Framework. To start the process, the Agency, together with the consultancy contracted by BID (Inter-American Development Bank), organized rounds of discussions with stakeholders, divided into four groups: (I) regulatory agencies and ABAR, (II) representative entities of the municipalities, (III) service providers and ABES, and (IV) federal government and financing entities. These rounds allowed ANA to understand the greatest difficulties of the actors in the sector, as well as the expectations and needs for this first reference rule.

As for the scope, the rule will deal exclusively with the management of solid waste (collection, transport, transshipment, treatment and final destination), with no provision for public cleaning. This service, which includes sweeping, weeding, tree pruning, and the cleaning of public roads, among others, is an indivisible service, which cannot be remunerated by fees or tariffs, but only by taxes of a general nature.

Still, the disciplined collection in the rule focuses only on the collection and final destination of urban solid waste, not including the waste from large generators. In addition to the rule, ANA is also producing a manual on the implementation of charging in order to guide holders and regulatory agencies in more detail.
 
Context
During the analysis of the regulatory impact, ANA verified the low financial sustainability of services. Among more than 3000 municipalities monitored by SNIS, the majority does not charge for the provision of waste services, and among those who do, at least 11.9% collect sufficient amounts to cover all the costs of providing the service. More than 40% of the municipalities that charge fees or tariffs, currently receive amounts that correspond to only 0 to 25% of the costs with the service. In addition, the vast majority of those who charge a fee together with the IPTU bill (Real estate tax), are subject to both high default and to the use of outdated records. Only 1% of monitored municipalities charge a fee for providing the service.

ANA has also detected low technical and regulatory capacity of the regulatory agencies.  Currently, only seven branches have consolidated operations in the regulation of solid waste, covering only 31 municipalities, 19 of which are located in the State of Santa Catarina.

Rule Content
In the reference rule, which was made available for public consultation, ANA sought to encourage collection by means of tariffs, instituted by a concession contract or by an administrative act held by the holder. In its studies, tariffs appear as the best manner to achieve the financial sustainability of the service.

Even so, the municipality or the regional structure responsible for providing the service is free to opt for charging a fee. The main difference is that the fee, as a type of tax, is subject to the tax regime, so that it requires a law to be instituted or increased. This situation can generate political obstacles to the establishment of the appropriate value. As to the tariff, it will have its value fixed by a regulatory agency, through technical criteria that can ensure, on the one hand, the collection of sufficient value to cover all expenses with the provision of the service and, on the other, to guarantee the moderation of the amount charged to users.

The rule has the challenge of being adaptable to different regional contexts and therefore presents all the alternatives for the structuring of collection. Thus, the holder can consider the local conditions to define the best model for his reality. In addition to not limiting the choice of the instrument (rate or tariff), the rule presents the different parameters that can be considered in the collection structure (built area, neighborhood of the property, volume available for collection, water consumption, among others), and the possible forms of collection (in the IPTU bill, specific bill, or invoiced together with other public services), to guide the public manager in the institution.

Conclusion
According to the new wording of article 29 of the National Basic Sanitation Law, the economic and financial sustainability of basic sanitation services will be achieved through the establishment of a linked and continuous financial source to defray the expenses incurred with the services.

In the proposal for a reference rule in public consultation, ANA seeks to guide the holders and regulatory agencies in instituting a collection instrument that ensures the service provider the required revenue, without prohibiting alternatives or disrupting what has already been done (and it has been working) today in Brazilian municipalities. In this sense, the rule is comprehensive, presenting alternatives that apply both to the provision of the service by concessionaires, as well as to the direct provision by special governmental agencies. Likewise, it presents provisions, guiding the institution of collection, in case of regionalized service provision.

Finally, the rule is also thought to have a quick implementation. It is an important starting point to guarantee the necessary investments so that, soon, all solid waste generated has an environmentally appropriate destination.

Recente decisão do STF impediu o TCU de aplicar sanção de inidoneidade a empresa signatária de acordo de leniência. A decisão é um importante reforço à segurança jurídica das soluções consensuais.

O Supremo reconheceu que o alinhamento institucional dos órgãos da Administração Pública, incluindo o TCU, é essencial para a viabilidade do cumprimento de cláusulas como a de reparação de danos, que pode estar presentes nos acordos de leniência. 

Entenda a decisão no artigo “STF decide que TCU deve respeitar os acordos de leniência”, escrito pelos advogados Luís Justiniano Haiek Fernandes e Rafaella Bahia Spach, publicado pelo Jota.