By-Product Decisions

Notification of by-product decisions by economic operators under Article 27 of the European Communities (Waste Directive) Regulations 2011, S.I. No. 126 of 2011

Article 27 of the European Communities (Waste Directive) Regulations, 2011, allows an “economic operator” to decide, under certain circumstances, that a material is a by-product and not a waste. Article 27 was introduced into Irish law to implement article 5 of the 2008 Waste Framework Directive (2008/98). Article 27 is reproduced in full at the end of this page.

Decisions made by economic operators under article 27 are to be notified to the Environmental Protection Agency. The Agency is required to maintain a register of these decisions. The Agency is entitled to decide that a notified by-product should in fact be considered as waste. The Agency is obliged to consult with the economic operator and the relevant local authority before making such a decision.

All by-product decisions should be notified to the Agency using the online notification form.

To launch the Article 27 online notification form, you will need to log in via the EDEN portal (https://www.edenireland.ie).

If you are a first time user of the EDEN portal you will need to create a user login account using the "Sign Up" option, and follow the instructions provided.

On registration you should also request access to the Article 27 application.  You will only need to register once; after which you can log in via the EDEN portal to launch the Article 27 application when needed and notify the Agency of your by-product decisions.

Please note there are extensive user instructions in the Help section of the EDEN portal site; but if you require further assistance in relation to technical issues or queries on EDEN registration, please use the following email address:

-       eden@epa.ie

Once your registration has been approved, you can log into EDEN and launch the Article 27 application, from where you can complete the by-product notification form and submit it electronically to the Agency.

Instructions on how to complete the noficiation form are provided on the form itself.

Please note that the Agency will no longer accept by-product decisions notified using the old paper-based form.

The Agency is required to maintain a register of notified by-products. The register can be accessed at: http://web.epa.ie/Article27Register/

Taking some key points from Article 27:

The decision is the economic operator’s as to whether a substance or object is a by-product (article 27(2)(a)). A notification made to the Agency is not asking the Agency to make the decision or to approve the decision. Once a notification is made, the decision has already been made by the economic operator.

When the decision has been made, the economic operator is entitled to manage the substance or object as a by-product, not a waste. It might be prudent however for an economic operator to await the Agency’s assessment of the notification and avoid having to address the consequences, such as they may arise, of handling a material as a by-product and not a waste.

Determination as waste: Article 27(3)(a) provides the Agency with the opportunity (“The Agency may…”) to determine that a notified by-product should actually be considered a waste. A determination will, in fact, reverse the decision made by the economic operator. There is no obligation on the Agency to make any determination or in fact to take any action. It is currently the policy of the Agency to examine each notification to ensure it complies with the requirements of article 27.

Consultation: Where the Agency intends to make a determination under article 27(3)(a), it must consult with the “relevant local authority” and the economic operator. In practice, this means that the Agency will inform the local authority and the economic operator where it is minded to make a determination that the notified by-product should be considered as waste. Both parties will be given a period of time to respond to this information.

The relevant local authority will usually be consulted on notified decisions (in a formal or less formal manner, depending on the circumstances) to ensure that any pertinent information is considered before a decision is made by the Agency to accept or reject the notified decision.

Determination is final: Sub-article 6 states that a determination made by the Agency is final. Thus there is no way for an economic operator to appeal a determination that a by-product should be classified as waste. However, it should be remembered that an economic operator will be consulted on the Agency’s thinking on a notification (and effectively get a chance to elaborate further on their decision).

Also, there is nothing to prevent an economic operator from notifying a new decision made using new information.

The Agency consulted in 2012 on a proposed approach to the assessment of notifications dealing with soil and stone.  You can download a copy of the original consultation, the submissions received and the Agency's consultation report at the individual links.