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What is a Waste?
Waste is defined under European (and therefore Irish) law by the Waste Framework Directive 1, as:
"Any substance or object which the holder discards or intends or is required to discard"
Disclaimer
Note this document sets out summary guidance as to whether a SMILE transaction involves a waste
material or not, as well as a summary of the implications of associated waste legislation where the material
is considered a waste. This guide is not intended to be and should not be taken as a legal interpretation of
the environmental or other legislative requirements in relation to any such materials, wastes or
transactions.
The Guide has drawn from some of the content of the European Commissions Guidance on the
interpretation of key provisions of Directive 2008/98/EC on waste2.
European Commissions Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste, June 2012
European Commissions Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste, June 2012.
See Appendix 2.
Note: Possibly waste pallets could be used for a different purpose, and be considered as a by-product (see section 6).
3. What is Recycling?
Recycling means any recovery operation by which wastes are processed into products, materials or
substances, whether for the original purpose or other purposes6 including the reprocessing of organic
material but does not include energy recovery and the reprocessing into materials that are to be used as
fuels or for backfilling operations (these latter ones are classed as other recovery).
In this case, the donating exchanger is dealing with a waste and should consider the information set out in
Section B to this guide.
What is the Difference between Recycling and Down-cycling? (see footnote):
- If glass bottles are crushed, melted, conditioned, and turned into other glass bottles this is
RECYCLING.
- If high quality plastic off-cuts are shredded, melted, extruded, and turned into garden benches, this is
DOWNCYCLING.
What should be considered if I want to recycle my waste? Relevant questions here would include:
Is the waste material suitable for reprocessing into products, materials or substances?
Is there anything in the waste material that might hinder its reprocessing, or affect the possible options
for recycling? e.g. its wood that is painted or pressure treated, its a mixture of different types of
plastics, etc..
Examples of Recycling - Examples of the types of SMILE transactions that could fall into the category of
recycling include:
Plastic off-cuts being sent for repelletising.
Wooden pallets being broken up and chipped for use in fibreboard manufacture.7
Pallets being broken up and chipped for use as a fuel in a site, which has been licensed to use
such material as a fuel.
If the new use material is of a lower grade than the original, then the correct terminology is down-cycling. This is not as good
as recycling.
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6. Ive Heard of By-products - What are they, and are they relevant to me?
Under the Waste Framework Directive, a material can be declared a by-product, so that it does not need
to be handled as a waste. Key conditions must be met in order to declare a material a by-product (see
below). 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 waste8.
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.
Article 27(3)(a) provides the Agency with the opportunity 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.
How Do I Declare a Material a By-Product?
According to the Waste Framework Directive, 4 criteria must be met in order for a substance or object
resulting from a production process (the primary aim of which is not the production of that item) to be
regarded as not being waste, but as being a by-product. These are:
(a) Further use of the substance or object is certain;
(b) The substance or object can be used directly without any further processing other than normal
industrial practice;
(c) The substance or object is produced as an integral part of a production process; and
(d) Further use is lawful, i.e. the substance or object fulfills all relevant product, environmental and
health protection requirements for the specific use and will not lead to overall adverse
environmental or human health impacts.
Some considerations for each of the above conditions are outlined in Appendix 1.
This is not an easy concept to understand. To prove that a material is not a waste, but a by-product, can be
quite a complicated process.
If you wish to pursue this avenue with respect to SMILE, you will need to make a declaration to the
Environmental Protection Agency (EPA).
This can be done by the maker of the by-product, the user of the by-product, or a go-between handling the
by-product.
Further information on how to declare a by-product is available at
www.epa.ie/whatwedo/licensing/;icper/.
Article 27 was introduced into Irish law to implement article 5 of the 2008 Waste Framework Directive (2008/98)S.I.
126 of 2011
7. What is End-of-Waste?
If something is done to a waste so that it is completely recovered and turned into something useful, it may
no longer be a waste legally. The something done to it would be a recovery operation of some sort, for
example recycling. Once recovery is complete so that a new useful product is created, and if specific
conditions are met, it can be declared End-of-Waste.
How will I know if the End-of-Waste Conditions have been met?
Certain specified waste shall cease to be waste when it has undergone a recovery, including recycling,
operation and complies with specific criteria to be developed in accordance with the following conditions:
(a) the substance or object is commonly used for specific purposes
(b) A market or demand exists for such a substance or object;
(c) The substance or object fulfills the technical requirements for the specific purposes and meets the
existing legislation and standards applicable to their products; and
(d) The use of the substance or object will not lead to overall adverse environmental or human health
impacts.
Some considerations for each of the above conditions are outlined in Appendix 2.
However, you cant just decide these things yourself. The EU has set criteria for certain waste streams that,
if met, show the materials are completely recovered and no longer waste. These EU criteria are set for iron
and steel, and are also being developed for copper scrap metal, recovered paper, and glass cullet. The
EPA can also decide when any waste is completely recovered and no longer a waste for a particular type of
material (other than those the EU has already covered) or, if asked, on a case-by-case basis. For example,
the EPA has adopted end-of-waste criteria for gypsum recovered from waste plasterboard.
The material is a waste until the recovery operation has been completed. It is up to the donating exchanger,
and the relevant authorities (local authorities or the EPA) to determine when the recovery operation has
been completed.
NOTE: When using the End-of-Waste route, the donating exchanger is dealing with a waste and should
consider the information set out in Section B to this guide. Note also, that a recovery operation for the
purposes of reaching end-of-waste status may be as simple as just checking the waste to verify that it fulfils
the end-of-waste criteria.
NOTE: It is usually the material producer, i.e. the person who first transfers the material to another person
as non-waste, who is responsible for providing evidence that end-of-waste criteria have been fulfilled.
B1
A waste collection permit for transferring the waste is always needed unless:
Such transport is incidental to the main business activity, i.e. not directly involved with the waste
business and this collection and transport is not the business focus or objective;
No more than 2 tonnes of waste is being transported; and is not hazardous waste.
It is transported in a vehicle designed for carrying a skip or other demountable container, i.e. the
vehicle is not designed for carrying waste.
If all of these are met, it can be transported by e.g. the generator of the waste, or by the person receiving
the waste.
If the material is a hazardous waste, then it should only be transported by someone who has a collection
permit for hazardous waste.
B2
If you are the generator of the waste you are only allowed transfer control of a waste to:
Someone who has a waste licence, waste facility permit, or certificate of registration for the type
and quantity of waste in question. Licences are from the EPA while the permits and certificates are
from the local authority. In general, licences are for larger scale activities while the least onerous
authorisation is the certificate of registration, which is for smaller-scale, primarily recovery-type
activities. For more information on which type of authorisation applies to which activity see:
http://www.epa.ie/whatwedo/licensing/waste/who%20needs%20a%20waste%20licence/
Someone who has an IPPC licence, where the licence states the site is allowed accept this type of
waste.
If you are the receiver you must fulfil one of the above categories, i.e. have a certificate of registration, a
facility permit, a waste licence or an IPPC licence with conditions allowing you to take the waste in
question.
B2.1 Help! - I still dont know whether the transaction needs permitting of some sort or
not?
If you are still unsure as to whether the proposed resource transaction or any associated recovery/repair
activity required before the exchanged material can be used is something which requires waste
authorisation of one type or another, or does not require any, there is a facility available whereby you can
ask the EPA (Environmental Protection Agency) for a decision on this.
For more information on how to go about this so-called Article 11 procedure see
http://www.epa.ie/whatwedo/licensing/waste/who%20needs%20a%20waste%20licence/article11declaratio
ns/#d.en.24538
This procedure is more suited to planned, on-going activity rather than one-off situations.
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By-products of the food industry and surplus food are a significant source of animal feed in Ireland.
Controls are carried by the Department of Agriculture Food and the Marine (DAFM), as the competent
authority for animal feed, to ensure the manufacture and supply of these feeds are in accordance with the
feeding stuffs legislation (Food and Feed Hygiene legislation S.I. 432 of 2009) and to ensure the safety of
the feed.
C2
By-products are produced by food processors such as breweries (brewers grains) and industrial
processors such as biofuel manufacturers (rapeseed cake / meal). These Feed Business Operators
(FBOs) are classified as Suppliers of Feed Materials.
C3
Surplus food
Food processors may also supply surplus or non-conforming food as feed material. These FBOs are also
classified as Suppliers of Feed Material and must register with DAFM.
DAFM has imposed an outright ban on the use of retail returns as feed for food producing animals since
2009. Exceptions are made solely for two categories of product, namely Bakery products and Dairy
products. Both of these must be taken directly back to the production facility or distribution centre from
where they were first dispatched to retail. It is only from there that they can be supplied for animal feed.
The DAFM requires that any operator producing or supplying feed materials from food or industrial
processing must be registered and comply with their obligation as feed business operators (FBOs). To
register
FBOs
must
complete
an
application
form,
http://www.agriculture.gov.ie/agrifoodindustry/feedingstuffs/formsguidancedocuments/ Sections B and C must be completed by the Supplier
of Feed Materials
C4
HACCP
In order to register, the FBO must ensure that their HACCP is amended to indicate that by-products or
surplus food stuffs are not a waste but a by-product under Article 27 of the Waste Management Acts and
designated as animal feedstuffs. Decisions made by an FBO under Article 27 must be notified to the
Environmental Protection Agency (EPA) using their online system. For further information details can be
viewed at http://www.epa.ie/waste/wastereg/byprod/#.Vcm6YHFViko
Inspections will be carried out at all stages of the feed chain, from food suppliers premises, brokers to farm
level. The selection of FBOs for inspection is based on risk analysis and has regards to, compliance
history, type of feed material and the operators other activities.
2. The substance or object can be used directly without any further processing
other than normal industrial practice
The crucial point here is to determine what normal industrial practice is.
Normal industrial practice can include all steps which a producer would take for a product,
such as the material being filtered, washed, or dried; or adding materials necessary for
further use; or carrying out quality control. However, treatments usually considered as a
recovery operation cannot, in principle, be considered as normal industrial practice in this
sense.
Processing steps as part of normal industrial practice do not all have to be carried out on the
same site some can be carried out on the production site of the manufacturer, some on the
site of the next user, some by intermediaries, and so on.
4. Further use is lawful, i.e. 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
Consider: a material meeting the technical specifications relevant to its further use, or an
object meeting product specifications relevant to its further use; if there are no relevant
technical specifications for the material, it can still be lawful to use it simply if its use is not
specifically forbidden.
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