27... · web viewarticle 27 notification form version 1 – 2 april 2012 13 section d – complete...

Article 27 notification form

ARTICLE 27 NOTIFICATION FORM

This form is for thenotification

of a by-product decision

by an economic operator

under article 27 of the European Communities (Waste Directive) Regulations

(S.I. No. 126 of 2011)

- The completed and signed form should be sent in hard copy to:Article 27 NotificationsEnvironmental Licensing Programme Environmental Protection AgencyPO Box 3000Johnstown Castle EstateCo. Wexford

OR- the signed document scanned and emailed as an attachment to:

[email protected] (please write “Article 27 Notification” in the subject line of the email)

Version 1.2, 10 July 2013 1

mailto:[email protected]


Preface – Please Read This FirstPlease read and understand the information in this preface before making your notification to the Agency. You (the ‘notifier’) have made a decision in accordance with article 27(1) of the European Communities (Waste Directive) Regulations, 2011, that a material is to be considered a by-product. You are notifying your decision to the Agency under article 27(2) of the Regulations. The Agency will enter your decision on a register. The Agency is obliged under article 27(5) of the Regulations to maintain a register of notified decisions. It is the policy of the Agency to make that register publicly available and any information you provide on this form or in attached documents will be available for public view in electronic format. Do not include or attach any information that is confidential or that you do not wish to make public.Any decision made by the Agency1 on foot of your notification will be based on information provided by you, including this notification form and any attachments. The Agency will also take into account any information provided by the relevant local authority and other parties. The accuracy and legitimacy of the information provided will be taken for granted unless there is reason to think otherwise. It will be assumed that you are entitled to make a by-product decision on the material in question unless there is reason to think otherwise. Any misrepresentation or omission of information is your responsibility solely.You should recognise that the by-product decision under article 27 is made by you (the economic operator) – not the Agency. You are notifying the Agency of your decision, not seeking a decision by the Agency. The decision you have made and are notifying is your responsibility. The Agency is entitled under article 27(3) of the Regulations to ‘determine’ that the material you have notified as a by-product is in fact to be considered as waste. A determination will in effect reverse the decision you made under article 27(1). You will be consulted before the Agency makes such a determination.You are not obliged to wait for feedback from the Agency before proceeding to implement your own decision – that is, to manage the material as a by-product and not a waste. However it may be appropriate to wait for the Agency’s feedback on your notification if there is any risk that the Agency will determine that your material is to be considered a waste. The Agency can at any time determine that the material is to be considered as waste. If at any time it becomes evident that:

- you are not meeting any commitments you made in your notification,

- you are departing from the grounds upon which you made your decision under article 27(1) and notified it under article 27(2), or

- the information you provided in your notification is false or misleading,

the Agency will determine that the material is to be considered as waste. You will be consulted before the Agency makes such a determination. Any 1 A decision made by the Agency might be a decision to determine that the material is a waste or it might be a decision not to determine at a point in time that the material is a waste.

Preface – Read this first 2


environmental liability arising from incorrectly managing the material as a by-product and not a waste will be the notifier’s and the notifier’s alone.A number of notifications made previously to the Agency have involved materials that are in fact products, not by-products. Notifiers should carefully consider, before making a notification, whether their material is actually a product. The European Commission has published guidelines on this matter in section 1.2 of the document Guidance on the key provisions of Directive 2008/98/EC on waste, June 2012. Notifiers should read this guidance before making a notification. The guidance is available at:

http://ec.europa.eu/environment/waste/framework/pdf/guidance_doc.pdf Notifiers should complete all parts of this form and all parts of each table. Attach additional information as necessary to elaborate or provide additional detail. The form is designed to assist economic operators in making a full notification. The guidance notes provided in this form are for guidance only. The form is not intended to be and should not be taken as a legal interpretation of the Regulations. If you are unsure of your obligations under article 27, you should seek professional assistance or legal advice.For information, the full text of article 27 of the Regulations is reproduced here:Article 27 of the European Communities (Waste Directive) Regulations, 2011 (S.I. No. 126 of 2011)

27. (1) A substance or object, resulting from a production process, the primary aim of which is not the production of that item, may be regarded as not being waste but as being a by-product only if the following conditions are met:(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 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.

(2) (a) Where an economic operator makes a decision in accordance with paragraph (1) that a substance or object is to be regarded as a by-product, he or she shall notify the Agency of the decision and the grounds for the decision.

(b) Where there is no notice given to the Agency under subparagraph (a) in respect of a substance or object and the substance or object, as the case may be, is discarded or otherwise dealt with as if it were waste, the substance or object, as the case may be, shall be presumed to be waste until the contrary is proved.

(3) The Agency -(a) may determine, in consultation with the relevant local authority

and the economic operator concerned, whether a substance or object notified to it as a by-product in accordance with paragraph (2)(a) should be considered as waste, and


http://ec.europa.eu/environment/waste/framework/pdf/guidance_doc.pdf


(b) shall notify the local authority and the economic operator concerned in circumstances where a determination is made that a substance or object should be considered as waste and not as a by-product.

(4) Nothing in this Regulation shall relieve an economic operator from his or her responsibilities under the Act of 1992 or the Act of 1996.

(5) The Agency shall establish and maintain a register of by-products to record substances or objects notified to it as by-products under paragraph (2)(a).

(6) Where the Agency makes a determination in accordance with paragraph (3) that a substance or object should be considered as waste and not as a by-product, the determination shall be final.



A. Identify the Economic Operator (the person or organisation making the notification)The economic operator named below has decided under article 27(1) of the Regulations that a particular material and its use described in Sections B and C below is to be classified as a by-product.

Name of the economic operator * (the individual, company or organisation making this notification or for whom it is being made)

Address of the economic operator

Name and address of the person responsible for communicating with the Agency on this notification **

Telephone number of contact

E-mail address of contact

Describe the economic operator’s interest in the by-product (i.e. generator, user, intermediary)

Was an Article 11 request previously submitted in relation to this by-product? If so, provide the Article 11 reference number.

* The term “Economic Operator” is used in the Regulations but is not defined. For the purposes of this notification form, it can mean the person/organisation generating the by-product, the person/organisation using the by-product or the person/organisation handling the by-product as an intermediary. It is generally taken to mean a person/organisation with an economic interest in the by-product. It does not mean a consultant or other third party representative of these persons/organisations.** This can be the Economic Operator or an employee or representative (such as a consultant).

Section A – Complete this for all notifications 5


B. Identify the source and nature of the by-product being notified (the activity and location where the by-product originates or is generated): The economic operator identified in Section A above has made a decision that the material specified and described below is a by-product that meets the requirements of article 27(1) of the Regulations.

Identify and describe the material being notified as a by-product(it will be possible to expand further on this description later in the form)

Describe any hazardous components in the notified material(it will be possible to expand further on this later in the form)

Identify and describe the process or activity in which the by-product is generated(it will be possible to expand further on this description later in the form)

Identify the location of the source of the by-product(factory/activity/development - name and address)

Provide a contact name at the source, including telephone number and email address

If the source location has: an IPPC licence, a waste licence, a waste facility permit, or a certificate of

registration,provide the licence, permit or certificate register number

Planning permission reference number for source (most recent permission)

Section C – Complete this for all notifications 6


C. Identify the user of the by-product (the recipient activity): The economic operator has made a decision that the by-product identified in Section B above will be used as a by-product at the location and/or for the activity described below. If more than one location or activity, copy and paste the table and complete it for each location and activity, or alternatively provide a separate list of users and activities using the headings in the table below. For soil and stone notifications, a separate notification form should be submitted for each destination.If there are no customers or outlets for the by-product, or if it is not commonly used for the proposed use, this should be stated and further elaboration provided later in this form in relation to article 27(1)(a) regarding the certainty of use of the by-product. A lack of customers or outlets will generally be regarded as a lack of certainty of use. If further use is not certain, there is the risk that the material would be disposed of as waste.

Identify the location where the by-product will be used(factory/activity/development - name and address)

Identify and describe the activity or activities in which the by-product will be used

Provide a contact name at the destination, including telephone number and email address

If the user of the by-product has:

an IPPC licence, a waste licence, a waste facility permit, or a certificate of

registration,provide the licence, permit or certificate register number



D. Additional information required for notification of SOIL and STONE and similar material being used as BACKFILL or FILL for site restoration or development:This section is mandatory only for notifications involving:

- topsoil,- subsoil,- stone,- mixtures of topsoil/subsoil/stone,- silt,- dredged material, and- other materials of this nature,

where these materials are intended for use in backfilling/filling operations and land development activities, such as:

- improvement and development of agricultural land,- development and landscaping of gardens and parks,- development and maintenance of roadside verges,- backfilling of disused quarries or mines,- construction of roads, and- other activities of a similar nature.

For all other notifications, proceed directly to section E of this form.

D.1 The source of the soil and stone (or similar material) is:[Check the box appropriate to the source of the notified soil and stones in either greenfield or brownfield sections below]

Uncontaminated land which has not been previously developed.

Uncontaminated overburden from mine or quarry sites.

Uncontaminated agricultural or forestry land.

Previously developed land (including land which is or was occupied by a permanent structure and/or associated fixed infrastructure).

Land with naturally elevated concentrations of metals.

Other – describe below or in an attachment (if not otherwise adequately described in sections B and E of this form).

Section D – Complete this section for Soil and Stone (and similar materials) notifications only

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D.2 Describe the source of the material as greenfield or brownfieldGreenfield site

Brownfield site

D.3 State the quantity of soil and stone (or similar material) being excavated and deposited (in tonnes preferably or cubic metres alternatively)

Quantity of notified soil and stones to be excavated from the source site and deposited at the destination site

tonnes

m3

Quantity of material already deposited at the destination site*

tonnes

m3

Quantity of material required to complete the whole fill at the destination site (including that already deposited)

tonnes

m3

* If material was previously deposited, state whether as by-product or as waste by completing (i) and/or (ii) as follows:(i) Was by-product deposited?

Yes No

State the notification number and provide the other information requested in the table:

By-product notification number

Date notified Date the fill commenced

Date the fill completed

(ii) Was waste deposited?Yes No

State the type of waste authorisation and the register number of the authorisation.

Type of latest waste authorisation (tick box)

Authorisation register number

Grant date Expiry date

Waste licence

Waste facility permit


{

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Certificate of registration

D.4 Confirm that the material is uncontaminatedSoil and stone (and similar material) sourced from greenfield or brownfield sites must be uncontaminated and contain no other materials including, but not limited to, construction and demolition materials. Confirm by ticking the box below.

The material notified is uncontaminated and contains no other materials other than soil and stone or similar naturally occuring substances (tick box)

D.5 Categorise the intended use of the notified material

Use in the improvement and development of agricultural land

Use in the backfilling of disused quarries or mines

Use in the development or landscaping of parks and gardens

Use in the construction of roads.

Use in roadside verges

Other - describe below or in an attachment (if not otherwise adequately described in section C and E of this form)

D.6 Maps showing source and destination locationsProvide a location map or maps showing the source and destination location described in sections B and C above. Maps should be appropriately scaled – maximum A3 size – showing the site locations in the context of their surroundings and clearly highlighting the site boundary.

Map of source site attached (tick box)

Map of destination site attached (tick box)

State the six-digit Irish National Grid* co-ordinates for the source and destination locations

Source site E N


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Destination site

E N

* A co-ordinate converter is available at http://gps.osi.ie/calculators/converter_index.asp.

D.7 Planning permissionProvide information on planning permission for the destination site where the material will be used. State whether, in relation to the destination site:

Planning permission was granted

Planning permission was refused

The proposal is Exempted Development

Provide the following information on any planning permission grant or refusal:Planning File Ref. No. Date of grant or

refusalDate of expiry of

permission

State whether the planning permission authorises the fill/backfill part of the development in question.

Yes No

Information on planning permission is sought for the following reasons:- grant of planning permission might, but will not always, indicate

that certainty of use is possible;- refusal of planning permission will in general indicate that there can

be no certainty of use and that deposit of material is not lawful.The Agency will not usually accept a notification that involves a fill activity that will be carried on:

- without planning permission; or- as exempted development.

In these circumstances it is likely that the Agency will refuse the notification and make a determination that the notified material is a waste on the basis that, amongst other things:

- the activity might not be lawful, - there might be no certainty of use, and/or - it cannot be demonstrated that the fill/backfill activity will not lead

to overall adverse environmental or human health impacts.Please do not submit any planning documentation with your notification. Your facts will be checked with the planning authority.


12

http://gps.osi.ie/calculators/converter_index.asp


D.8 Environmental Impact AssessmentState whether the development at the destination site was subject to Environmental Impact Assessment (EIA)

Yes No

EIA is carried out by State bodies such as planning authorities, local authorities and the EPA. An Environmental Impact Statement (EIS) is usually provided by a developer/proposer and provides the information that enables the State body to carry out the EIA. In the box below, provide the name of the State body that carried out the Environmental Impact Assessment relating to the development in question:

State whether the EIA covers the fill/backfill activity and this activity was specifically addressed in the Environmental Impact Statement

Yes No

Please note that if Environmental Impact Assessment is required at the destination site for the proposed fill/backfill activity, but has not been carried out, it is likely that the Agency will refuse the notification and make a determination that the notified material is a waste on the basis that it cannot be demonstrated that the fill/backfill activity will not lead to overall adverse environmental or human health impacts.Please do not submit an Environmental Impact Statement with your notification. Your facts will be checked with the State body that carried out the EIA.

D.9 Appropriate Assessment and Natura Impact StatementState whether Screening for Appropriate Assessment was carried out in relation to the destination site and, in particular, the fill/backfill activity

YesNo

State whether the development at the destination site was subject to Appropriate Assessment in accordance with the requirements of article 6 of the Habitats Directive

YesNoNot required based on the findings of a Screening for Appropriate Assessment

Appropriate Assessment is carried out by State bodies such as planning authorities, local authorities, NPWS, the EPA. A Natura Impact Statement (NIS) is usually provided by a developer/proposer and the NIS provides the information that enables the State body to carry out Appropriate Assessment. In the box below, provide the name of the State body that


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carried out the Appropriate Assessment or made the decision, based on a Screening for Appropriate Assessment, that none was required in relation to the fill/backfill development:

State whether the Appropriate Assessment covered the fill/backfill activity and that this activity was specifically addressed in the Screening for Appropriate Assessment and/or the Natura Impact Statement (or the Environmental Impact Statement if this was used for the Appropriate Assessment)

Yes No

For all developments, a “Screening for Appropriate Assessment” report will have been carried out in relation to the fill activity. A Natura Impact Statement (NIS) might also have been prepared for consideration by a planning/public authority2 as defined in Regulation 2(1) of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011). Please note that if a Screening for Appropriate Assessment has not been carried out, it is likely that the Agency will refuse the notification and make a determination that the notified material is a waste on the basis that it cannot be demonstrated that the fill/backfill activity will not lead to overall adverse environmental or human health impacts.Please note that if Appropriate Assessment is required at the destination site, but has not been carried out, it is likely that the Agency will refuse the notification and make a determination that the notified material is a waste on the basis that it cannot be demonstrated that the fill/backfill activity will not lead to overall adverse environmental or human health impacts.Please do not submit any Appropriate Assessment documentation with your notification. Your facts will be checked with the State body that carried out the Appropriate Assessment or determined that none was required.

D.10 Suitability of the material for the intended useThe notified soil and stones (or similar material) must be suitable for the intended use in the development activity. Provide signed documentation from a suitably qualified person (e.g. chartered engineer) as to the suitability of the notified material for the purposes of the development.

Attached is a qualified person’s sign-off on the suitability of the notified material for the development/use proposed (tick box)

The sign-off explains the reasons why the notified material is suitable for the development/use proposed (tick box)

2 This might be the Agency in the case of, for example, a waste licence application.


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Failure to tick both boxes and attach the relevant document is likely to result in a notification being refused and a determination being made under article 27(3)(a) of the Regulations stating that the notified material is in fact a waste.


15


E. Address the conditions for being a by-product:Article 27(1) of the Regulations (reproduced above) states that a substance or object resulting from a production process the primary aim of which is not the production of that item may be regarded as being a by-product if the conditions set out in article 27(1)(a) to (d) are met. An arrow in this section () indicates information to be provided.The European Commission has clarified the concept of “by-product” in Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste, June 2012, and the following is an extract of text from that guidance:

Product – all material that is deliberately created in a production process. In many cases it is possible to identify one (or more) “primary” products, this or these being the principal material(s) produced. Production residue – a material that is not deliberately produced in a production process but may or may not be a waste.A production residue that fulfils the requirements of Article 5 [Waste Framework Directive] is a by-product. Is the material concerned a production residue or a product?A production residue is something other than the end product that the manufacturing process directly seeks to produce. Where the production of the material concerned is “the result of a technical choice”, it cannot be a production residue and is considered a product.If the manufacturer could have produced the primary product without producing the material concerned but chose not to do so, this is evidence that the material concerned is a product and not a production residue. Also a modification of the production process in order to give the material concerned specific technical characteristics could indicate that the production of the material concerned was a technical choice.

Before addressing items (a) to (d) below, see if your by-product decision meets the basic concept for by-product, as follows: 1. Write in the space below the name or description of the production process

___________________________________________________________________ 2. Write in the space below the name or description of the material to be notified as a by-product.

___________________________________________________________________

3. Is it the primary aim of the production process (item 1) to produce the material mentioned in item 2? Yes/No

Section E – Complete this for all notifications 16


If the answer to question 3 is “yes”, then your material might not be a by-product, but a product. Only if the answer to question 3 is “no” should you test your material against the conditions in article 27(1)(a) to (d) and proceed to complete the rest of this form.You might also wish to ask yourself whether your material is currently classified as waste, or would be classified as waste under normal circumstances. If the answer to this question is “no”, this might indicate that your material is a product. As noted earlier in this form, it can be foreseen that difficulties would arise for notifiers that notify a “product” as a by-product but the Agency decides that the material should be classified as a waste.Address each of the following four conditions in full. Attach all relevant supporting information. Failure to address each of the four items in full could result in a determination being made that the notified by-product is to be considered as waste.The notes provided below the conditions are intended as guidance only.



Article 27(1)(a) – further use of the substance or object is certainThis means that further use is not a mere possibility, but a certainty or it is guaranteed that the material will be used. The purpose of this criterion is that, if further use is not certain, there is the risk that the material would be disposed of as waste. It may be possible to show certainty of use through, for example:

- existence of contracts between the waste holder and subsequent user;- a financial gain for the waste holder; or- a solid market existing for the further use.

The European Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste elaborates further on this condition.Storage of the notified material while customers are found for it does not indicate that further use is certain. You have provided above the name and address of one or more users of the by-product. Elaborate on the use of the by-product in the box below.

<expand box or use an additional sheet as necessary>



Article 27(1)(b) – the substance or object can be used directly without any further processing other than normal industrial practiceThe Agency generally accepts that ‘normal industrial practice’ can comprise such activities as screening, crushing, grading, dewatering – this is a guideline, not a rule. The European Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste elaborates further on this condition.Elaborate in the box below on what further processing, if any, is carried out on the substance or object, and at what location, prior to it being used as a by-product. Explain why you consider this should be considered to be ‘normal industrial practice’ for your sector or activity.




Article 27(1)(c) – the substance or object is produced as an integral part of a production processThis links to the logic test you employed above. The production process does not have as its primary aim the generation of this material, but the generation of the material is an integral part of the production process. The European Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste elaborates further on this condition.Elaborate on this question in the box below.




Article 27(1)(d) – 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 impactsIn the box below, identify all product, environmental and health protection requirements that relate to the by-product and its placing on the market. State how the notified by-product meets those requirements. Indicate any limitations or prohibitions on the use of the by-product in the use proposed. If there are no relevant technical specifications, say so. In your thinking on this item, do not consider the material as a waste or apply what you would understand to be waste-like controls to the material. Instead, you are proposing that the material is not a waste. It is therefore subject to the wide range of international, European and national legislation on:

- marketing and placing on the market of products (e.g. REACH, CLP, GHS)- transport and storage- planning permission

The Agency may decide to consult with relevant regulatory authorities to check claims made by notifiers in this section.Referring to the final clause of the sub-article, you must demonstrate that the use of the by-product will not cause environmental pollution or impact on human health during its transport, storage and use. In relation to notifications involving soil and stone, such demonstration should be in the form of an environmental assessment carried out at the destination site. Acceptable forms of environmental assessment are:

- Environmental Impact Assessment (see section D.8 above);- Grant of waste facility permit or waste licence; and- For soil and stone deposition sites where the total lifetime fill is less than

25,000 tonnes, grant of planning permission.Other forms of environmental assessment will not generally be accepted.Notifiers should also provide comprehensive information on the manner in which any potential environmental impacts will be mitigated and monitored, and what actions will be taken in the event of an incident that results in environmental pollution being caused.The European Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste elaborates further on the different aspects of this condition.Elaborate on these issues in the box below.




DECLARATION

I hereby notify the Environmental Protection Agency pursuant to Article 27(2)(a) of the European Communities (Waste Directive) Regulations, 2011, of my decision that the substance/material described above is a by-product within the meaning of Article 27(1) of the Regulations.I declare that the information given in this notification is truthful, accurate and complete and is a full and complete representation of the substance/material notified and its proposed use. I make this notification on the understanding that an incomplete, misleading or otherwise falsified submission will not be regarded as a notification for the purposes of Article 27(2)(b) of the Regulations and that in such circumstances, the substance/material notified may be determined to be a waste and consequently any use of the substance/material may be regarded as a waste activity.I declare that the proposed use of the notified substance/material fulfills all relevant environmental and health protection requirements and that the proposed use is lawful and complies with the provisions of any and all relevant legislative requirements.I make this notification on the understanding that, in accordance with the provisions of Article 27(3)(a), the EPA may determine at any time that the substance/material notified herein as a by-product is to be considered a waste and that any determination made by the EPA that said substance/material is a waste and not a by-product is final.I have read and understood the preface to this document and other guidance contained in the document.I am authorised and/or entitled to make this notification.

Signed: Date:_____________ (by or on behalf of the economic operator)

Print your name:

Position in organisation:

Organisation/Company:______________________________________________

Company Seal:

Declaration – Complete this for all notifications 24

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