By-product (Regulation 27)

Introduction to by-products

Waste Action Plan for a Circular Economy seeks to reduce the environmental and health impacts of waste and improve resource efficiency. The fundamental goal is to achieve a circular economy that 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 EPA 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 (May 2020).

The concept of a by-product

The concept of a by-product was established by the European Waste Framework Directive (WFD). This concept has been transposed into Irish law through Regulation 27 of the European Communities (Waste Directive) Regulations 2011, as amended.

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 relevant person, such as the 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 will not 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.
• The material can be used without causing overall adverse impacts to the environment or human health.

The economic operator is required to notify the EPA 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 Regulation 27. All four of the following conditions must be met for a person 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 the production process.
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 EPA has produced the following guidance to assist you with the completion of your by-product notifications:

• By-Product Notification Form Guidance (January 2022).
• Draft By-product - Guidance Note (May 2020) - an outline of the key definitions and guidance on how to assess whether a substance or object is a by-product or a waste.
• Guidance on Soil and Stone By-products (June 2019) – specific guidance relating to excess uncontaminated soils and stone by-product notifications.
• Summary of by-product notification process.

It is important the notifier becomes familiar with this guidance before submitting a by-product notification. This will assist the notifier in providing the correct level of detail in the notification to enable the EPA to determine whether the notified material satisfies the conditions of Regulation 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 EPA’s By-product Register.

Consultation on Draft National By-Product Criteria 

Please follow the instructions on how to make a submission described in Section 5 of the Consultation Paper.