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SMILE - Frequently Asked Questions

What is this Document About?
The exchange of goods is unregulated but the movement and processing of waste is controlled under the
Waste Management Act 1996 and subsequent Acts and Regulations. What is key here is the definition of
Waste, and By Product and that when something is reused it is not a waste.
This guide is a series of frequently-asked-questions (FAQs) to:
 Help determine whether the resource or material (or product or substance) involved in a SMILE
transaction is a waste or not (Section A).
 Show what is required if the material is considered to be a waste (Section B).

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 Commission’s Guidance on the
interpretation of key provisions of Directive 2008/98/EC on waste2.

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Waste Framework Directive 2008/98/EC.

2

European Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste, June 2012

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Section A: Is the material a waste?
The following figure divides activities into two areas: those that are considered to involve waste and those
that are not considered to involve waste. It also shows the interaction between the two areas of ‘waste’ and
‘not waste’. Each of the items numbered in this figure is detailed in this section.

1. What is meant by Prevention & by Re-use of a Material?
‘Prevention’ covers measures taken to stop something becoming a waste. This includes the re-use of
products or the extension of the life span of products.
‘Re-use’ means any operation by which products or components that are not waste are used again for the
same purpose for which they were originally conceived. The important thing here is that it is not a waste,
because the holder has not discarded it, does not intend to discard it, or is not required to discard it.
Example of Re-Use:
An example of ‘re-use’ quoted in an EU Guidance document3 is as follows: “Re-use is a means of waste
prevention; it is not a waste-management operation. For example, if a person takes over a material, e.g.
piece of clothing, directly from the current owner with the intention of re-using it (even if some repairing is
necessary) for the same purpose, this comprises evidence that the material is not a waste”.
Warning:
Please be aware that there is no simple or general answer as to whether or not something is a waste. You
may have been discarding something for years, but are now using SMILE to seek an alternative outlet. It
has previously, therefore, been a waste. YOU must make the decision, and if necessary seek appropriate
guidance from the authorities, as to whether or not the ‘something’ is waste.

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European Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste, June 2012.

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What is meant by the Same Purpose for which it was conceived?
In order for something to be re-used for the same purpose for which it was conceived, it must be fit for
purpose.
Therefore, some of the checks, which could prove it is fit for purpose might include:
– Is the item fit for reuse for the same purpose - does it function as required? (can this be demonstrated
to the potential recipient?)
– How has this material arisen, i.e. why is it being placed on SMILE? (e.g. being replaced by new item;
surplus to requirements; no longer needed; no longer suitable for its application in its current setting;
etc.)
– Is it clean?
– How is it stored at present? Obviously, storage should be such that it does not hinder the reuse of the
item for its original function, e.g. outdoor storage of soft furnishings.
An example of a type of SMILE transaction that could fall into the category of ‘prevention’ by ‘re-use’ is the
direct re-use of furniture that was not discarded, or was not intended or required to be discarded.

2. What is ‘Preparing for Re-use’?
‘Preparing for re-use’ means checking, cleaning, or repairing, through which products (or components of
products) are prepared so that they can be re-used without any other pre-processing. ‘Re-use’ is as already
described above, i.e. used again for the same purpose for which it was conceived.
The key here is that the item in question is already a waste, i.e. the holder has discarded it or intends to
discard it.
By going through the process of preparing for re-use, the material is then no longer considered to be a
waste (i.e. once the checking, cleaning or repairing operations have been completed).
In effect, “preparing for reuse” is a type of recovery process that results in “end of waste” 4
In this case, the donating exchanger is dealing with a waste, and should consider the information set out in
Section B to this guide.
In order for something to be re-used for the same purpose for which it was conceived, it must be fit for
purpose at the end of the ‘preparing for reuse’ process.
What Does ‘Fit-for-Purpose’ Mean?
In addition to the above checks to prove it is fit for purpose, additional questions here might include:
– What repair is needed, if any, before it is fit for reuse for the same purpose?
– Does it need any cleaning?
– What checks, if any, have already been carried out on it?
Examples:
SMILE transactions that could fall into the category of ‘preparing for re-use’ include:
 The repair and subsequent re-use of waste pallets.
 The checking of waste pallets for suitability for re-use, and the subsequent re-use of such pallets5.

4

See Appendix 2.

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Note: Possibly waste pallets could be used for a different purpose, and be considered as a by-product (see section 6).

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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. it’s wood that is painted or pressure treated, it’s 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

4. What is meant by Other Recovery?
If a material cannot be re-used or recycled, it may still have some use or value.
‘Recovery’ means any operation which results in a waste serving a useful purpose by replacing other
materials which would otherwise have been used to fulfill a particular function. (It also includes a waste
being prepared to fulfill that function, in the plant or in the wider economy). Other recovery is typically
energy recovery through use as a fuel.
Only after going through such a recovery process is a material no longer considered a waste.
Is ‘Other Recovery’ relevant to SMILE?
It is possible that a SMILE transaction could be relevant to ‘other recovery’ activities. In this case, the
donating exchanger is dealing with a waste and should consider the information set out in Section B to this
guide.
Example:

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.

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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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Technically, this is down-cycling.

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5. What is Meant by Disposal – and is it Relevant to SMILE? (NO!!)
Disposal means that the material in question is permanently removed, without any meaningful recovery of
materials or energy. Disposal would include landfilling, and incineration with low or no energy recovery.
SMILE transactions will not be relevant to waste disposal activities.

6. I’ve 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/.

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Article 27 was introduced into Irish law to implement article 5 of the 2008 Waste Framework Directive (2008/98)S.I.
126 of 2011

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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 can’t 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.

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Section B: What is required if the material is a
waste?
Donors on SMILE:
I have determined my material is a waste – what now?
Receivers on SMILE: I have determined the material I’m receiving is a waste –
what now?
If the material is a waste, there are some requirements as to:
1. How it’s transported – see section B1 below, and
2. Who it is given to - see section B2 below.

B1

What are the issues for transport of the waste?

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

Any issues as to who I give the waste to?

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 don’t 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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Section C: What is required if I am involved
with Food Waste
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Guidance on By-products and surplus food as animal feed

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 of food and biofuel industries

By-products are produced by food processors such as breweries (brewer’s grains) and industrial
processors such as biofuel manufacturers (rapeseed cake / meal). These Feed Business Operators
(FBO’s) are classified as “Suppliers of Feed Materials”.

C3

Surplus food

Food processors may also supply surplus or non-conforming food as feed material. These FBO’s 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 (FBO’s). To
register
FBO’s
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”

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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 supplier’s premises, brokers to farm
level. The selection of FBO’s for inspection is based on risk analysis and has regards to, compliance
history, type of feed material and the operators’ other activities.

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Appendix 1: By-products – Considerations in
Relation to Criteria
Some considerations in relation to the conditions for by-products are as follows (taken from the European
Commission’s Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste).

1. Further use of the substance or object is certain
It must be a certainty or be guaranteed that the material will be used.
Some ways to indicate meeting this condition might include, for example:
 The existence of contracts between the material producer and subsequent user;
 A financial gain for the producer;
 A solid market existing for this further use;
 Evidence the material fulfils the same specifications as other such products on the
market.

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.

3. The substance or object is produced as an integral part of a production
process
This means a material is made ready for further use through an integral part of a production
process. If a material leaves the site or factory where it is produced in order to undergo
further processing, this may be evidence that such tasks are no longer part of the same
production process, thus disqualifying it as a by-product. However, further treatment
operations which are normal industrial practice do not exclude classification as a by-product,
irrespective of where such industrial treatment is carried out — on the site of the generator of
the material, on the site of the industrial facility using the material, or on an intermediate site.
Consider: the degree of readiness of the material for direct further use; what is the nature
and extent of the tasks needed to prepare the material for direct further use; how integrated
are these tasks in the main production process; consider the relevant BREF Reference
document.

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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Appendix 2: End-of-Waste – Considerations in
Relation to Criteria
A legal framework to govern “end-of-waste status” for specific waste types has been created under Article 6
of the Revised Waste Framework Directive 2008/98/EC.
The benefits of this approach include supporting recycling markets, increasing recycling (with consequent
saving of material resources, energy and reduction of greenhouse gas emissions) and improving the
implementation of waste management law. This is to be achieved by setting quality criteria for specific
secondary raw materials via Community legislation that is legally binding in its application to all Member
States, harmonising the various criteria to be used by Member States across the EU, thereby creating legal
certainty and reducing administrative burden.
Article 28 of the European Communities (Waste Directive) Regulations, 2011, transposes article 6 of the
2008 Waste Framework Directive (2008/98/EC). Article 28 sets out the grounds by which a material which
is recovered or recycled from waste can be deemed to be no longer a waste. The article provides for
development of end-of-waste criteria in accordance with the following as set out in article 28(1) of the
Regulations and article 6 of the Directive:
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:
Some considerations in relation to the conditions for end-of-waste are as follows.
1. The substance or object is commonly used for specific purposes
2. A market or demand exists for such a substance or object
Compliance with these two conditions can be indicated by the existence of firmly established
market conditions related to supply and demand; a verifiable market price being paid for the
material; the existence of trading specifications or standards.
3. The substance or object fulfills the technical requirements for the specific purposes
and meets the existing legislation and standards applicable to products
Compliance with this criterion can be indicated by compliance with established relevant
technical specifications or technical standards that are used for virgin materials for the same
purpose. The material should be ready for final use and no additional waste treatment steps
should be needed.
4. The use of the substance or object will not lead to overall adverse environmental or
human health impacts
Compliance with this criterion can be indicated by comparing the use of the material under
the relevant product legislation with the use of the same material under waste legislation.
The following questions are also relevant: Is the product legislation sufficient to adequately
minimise the environmental or human health impacts? Would releasing the material from the
waste regime lead to higher environmental or health risks?
In the absence of end-of-waste criteria set at Community level, article 28(3)(a) of the Regulations allows the
Agency to decide on a case-by-case basis whether certain waste has ceased to be waste in accordance
with the end-of-waste conditions. No decisions have been made to date under article 28. Proposals for endof-waste status must come from industry and be funded by industry. The making of an end-of-waste
proposal to the Agency will be a complex process for most materials given a range of factors such as the
variety of sources, presence of contaminants, intended end uses, quality control and the possible
requirement to comply with Regulation (EC) No 1907/2006 concerning the Registration, Evaluation,
Authorisation and Restriction of Chemicals (REACH).

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