By-product (Article 27)

Introduction to By-products

Ireland’s Waste Management Policy seeks to reduce the environmental and health impacts of waste and improve resource efficiency. The fundamental goal is to achieve a circular economy which avoids unnecessary waste generation and allows for the use of materials as a resource wherever possible. This in turn minimises the requirement for the extraction of additional natural resources. By-products can play a key role in achieving this.

This page aims to help you to:

  1. Understand the concept of by-product and how to assess whether a substance or object (the ‘material’) is a by-product or a waste.
  2. Make a good quality notification to the Environmental Protection Agency which clearly demonstrates compliance with the conditions of the by-product test.

More detailed guidance can be found in the Draft By-product - Guidance Note.

The Concept of By-product

The concept of a by-product was established by Article 5 of the European Waste Framework Directive (WFD). Article 5 addresses the matter of the dividing line between what is defined as ‘waste’ and what is a ‘by-product’. This concept has been transposed into Irish law through Article 27 of the European Communities (Waste Directive) Regulations 2011. Only a production residue can be considered a potential by-product. The initial assessment of whether a production residue is a by-product or a waste is conducted by the economic operator (or material producer).

The notification of a potential by-product gives industry an opportunity to demonstrate, with an appropriate level of rigour, that: 

  • the material can have a further use and no longer be defined as waste;
  • the material can be used as a ‘secondary’ resource in place of, and fulfilling the same role as a non-waste derived or virgin ‘primary’ resource; and
  • the material can be used without causing overall adverse impacts to the environment or human health.

The economic operator is required to notify the Environmental Protection Agency, if they decide the material is a by-product. For further details on how to submit a by-product notification and what is required, see How to Prepare and Submit a By-product Notification.

The By-product Test

The by-product test is made up of four conditions, which represent the requirements of Article 27. All four of the following ‘conditions’ must be met for an economic operator to decide that a production residue is a by-product:

  1. further use of the material is certain;
  2. the material can be used directly without any further processing other than normal industrial practice;
  3. the material is produced as an integral part of a production process; and
  4. further use is lawful in that the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.

The Environmental Protection Agency have produced the following guidance to assist you with the completion of your by-product notifications:

It is important the economic operator becomes familiar with this guidance prior to submitting a by-product notification. This will assist the economic operator in providing the correct level of detail in the notification to enable the Environmental Protection Agency to determine whether the notified material satisfies the conditions of Article 27 and can be considered a by-product or that the material is a waste.

Register of By-product Notifications

All by-product notifications are available to view on the Environmental Protection Agency’s Article 27 By-product Register.