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).

Decisions made by economic operators under article 27 must 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.

Article 27 REGISTER: http://web.epa.ie/Article27Register/

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. However, the economic operator should 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.  These consequences may include legal action, or a requirement to remove the material if, for example, it has been placed in or on the ground.

An economic operator, for the purpose of deciding whether a material is a by-product and making a notification to the EPA, is the person who produces the by-product.

Determination as waste: Article 27(3)(a) allows the Agency 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. It is currently the policy of the Agency to examine each notification to ensure it complies with the requirements of article 27. Economic operators should wait for an indication in writing of the Agency’s opinion on a notification before acting on their decision that their material is a by-product (and not a waste).

Determination is final: Article 27(6) states that a determination made by the Agency is final. There is no way for an economic operator to appeal a determination that a by-product should be classified as waste other than by judicial review through the courts. 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). An economic operator is not prevented from notifying a new decision using new information.

  

NOTIFICATIONS IN RELATION TO SOIL and STONE:

The Environmental Protection Agency is currently developing guidance on by-product decisions in relation to soil and stone materials.  Our draft guidance will be subject to public consultation later in 2018.

 

NOTIFICATION OF DECISIONS

By-product decisions must be notified to the Agency using the online notification form. NOTE: that the Agency will no longer accept by-product decisions notified using the old paper-based form.

Section 13(5) of the Environmental Protection Agency Act 1992 as amended states that any person who gives, either to an authorised person or the Agency, information which is false or misleading in a material respect shall be guilty of an offence.

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

NOTE: 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. 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 notification form are provided on the form itself.