Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 1st September, 2020.

TABLE OF CONTENTS

I, EAMON RYAN Minister for Communications, Climate Action and Environment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive 2018/851¹ of the European Parliament and of the Council of 30 May 2018 on waste and amending certain Directives, hereby make the following Regulations:

Citation

1. (a) These Regulations may be cited as the European Union (Waste Directive) Regulations 2020.

(b) These Regulations and the European Communities (Waste Directive) Regulations 2011 ( S.I. No. 126 of 2011 shall be construed together as one and may be collectively cited as the European Union (Waste Directive) Regulations 2011-2020.

Interpretation - general

2. (1) In these Regulations—

‘Act of 1992’ means the Environmental Protection Agency Act 1992 (No. 7 of 1992);

‘Act of 1996’means the Waste Management Act 1996 (No. 10 of 1996);

‘Regulations of 2011’ means the European Communities (Waste Directive) Regulations 2011 ( S.I. No. 126 of 2011 );

‘Waste Directive’ means Directive 2018/851 of the European Parliament and of the Council of 30 May 2018 on waste and amending certain Directives

‘Packaging Directive’ means Directive 2018/852² amending Directive 94/62/EC³ on packaging and packaging waste

‘Landfill Directive’ means Directive 2018/850⁴ amending Directive 1999/31/EC⁵ on the landfill of waste

‘Batteries Directive’ means Directive 2006/66/EC⁶ on batteries and accumulators and waste batteries and accumulators as amended by Directive 2018/849.⁷

‘WEEE Directive’ means Directive 2012/19/EU⁸ on waste electrical and electronic equipment as amended by Directive 2018/849.

‘ELV Directive’ means Directive 2000/53/EC⁹ on end-of-life vehicles as amended by Directive 2018/849.

Purpose of Regulations

3. The purposes for which these Regulations are made include the purpose of giving effect to provisions of the Waste Directive and partial effect to the Batteries, ELV, WEEE, Packaging and Landfill Directive(s). The Regulations set out additional measures to protect the environment and human health by preventing or reducing the generation of waste, the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use, which are crucial for the transition to a circular economy and long-term competitiveness.

PART 2

AMENDMENTS TO ACT OF 1996

Amendment to section 3 of the Act of 1996

4. The Act of 1996 is amended by insertion of the following after subsection 2(d):

“(e) substances that are destined for use as feed materials as defined in point (g) of Article 3(2) of Regulation (EC)No 767/2009¹⁰ of the European Parliament and of the Council and that do not consist of or contain animal by-products.”

Amendment to section 4 of the Act of 1996

5. The following definitions are added to section 4 of the Act of 1996:

“‘non-hazardous waste’ means waste which is not covered by the definition of hazardous waste.”

Amendment to section 5 of the Act of 1996

6. Section 5 of the Act of 1996 is amended by the replacement of the definitions of ‘bio-waste’, ‘prevention’ and ‘waste management’ with the following:

“‘bio-waste’ means biodegradable garden and park waste, food and kitchen waste from households, offices, restaurants, wholesale, canteens, caterers and retail premises and comparable waste from food processing plants;

‘waste management’ means the collection, transport, recovery including sorting, and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker;

‘prevention’ means measures taken before a substance, material or product has become waste, that reduce:

(a) the quantity of waste, including through the re-use of products or the extension of the life span of products;

(b) the adverse impacts of the generated waste on the environment and human health; or

(c) the content of hazardous substances in materials and products;”

7. Section 5 of the Act of 1996 is amended by the insertion of the following definitions for ‘backfilling’, ‘extended producer responsibility’, ‘material recovery’ ,‘municipal waste’, ‘construction and demolition waste’ and ‘food waste’ :

“‘municipal waste’ means:

(a) mixed waste and separately collected waste from households, including paper and cardboard, glass, metals, plastics, bio-waste, wood, textiles, packaging, waste electrical and electronic equipment, waste batteries and accumulators, and bulky waste, including mattresses and furniture;

(b) mixed waste and separately collected waste from other sources, where such waste is similar in nature and composition to waste from households;

Municipal waste does not include waste from production, agriculture, forestry, fishing, septic tanks and sewage network and treatment, including sewage sludge, end-of-life vehicles or construction and demolition waste. This definition is without prejudice to the allocation of responsibilities for waste management between public and private actors;

‘construction and demolition waste’ means waste generated by construction and demolition activities;

‘food waste’ means all food as defined in Article 2 of Regulation (EC) No 178/2002¹¹ of the European Parliament and of the Council that has become waste;

‘material recovery’ means any recovery operation, other than energy recovery and the reprocessing into materials that are to be used as fuels or other means to generate energy. It includes, inter alia, preparing for re-use, recycling and backfilling;

‘backfilling’ means any recovery operation where suitable non-hazardous waste is used for purposes of reclamation in excavated areas or for engineering purposes in landscaping. Waste used for backfilling must substitute non-waste materials, be suitable for the aforementioned purposes, and be limited to the amount strictly necessary to achieve those purposes;

‘extended producer responsibility scheme’ means a set of measures taken by Member States to ensure that producers of products bear financial responsibility or financial and organisational responsibility for the management of the waste stage of a product’s life cycle.

‘the Regulations of 2020’ means the European Union (Waste Directive) Regulations 2020 ( S.I. No. 323 of 2020 ); ”

Amendment to section 21A of the Act of 1996 (Waste hierarchy)

8. Section 21A of the Act of 1996 is amended with the insertion of the following after paragraph (4), as follows:

“(5) The Minister shall make use of economic instruments and other measures to provide incentives for the application of the waste hierarchy, such as those indicated in the Sixth Schedule or other appropriate instruments and measures.

(6) In order to contribute to the objectives laid down in Directives 2000/53/EC on the end-of-life vehicles, 2006/66/EC on batteries and accumulators and waste batteries and accumulators, and 2012/19/EU on waste electrical and electronic equipment, the Minister may also make use of the economic instruments and measures referred to under sub-paragraph (5) and indicated in the Sixth Schedule.”

Amendments to section 22 of the Act of 1996 (Waste management plans.)

9. (1) Subsection (6)(b) is replaced as follows:

“(b) A waste management plan shall contain, as appropriate, and taking into account the geographical level and coverage of the planning area, at least the following:

(i) (I) the type, quantity and source of waste generated within the territory, the waste likely to be shipped from or to the national territory, and an evaluation of the development of waste streams in the future; and

(II) a requirement that, in order to fulfil this obligation, liaison shall be undertaken, as appropriate, with the Minister, the Agency, Dublin City Council and other relevant local authorities;

(ii) existing major disposal and recovery installations, including any special arrangements for waste oils, hazardous waste, waste containing significant amounts of critical raw materials, or waste streams addressed by specific Union legislation;

(iii) an assessment of the need for closure of existing waste installations, and for additional waste installation infrastructure in accordance with section 37A. The Minister shall ensure that an assessment of the investments and other financial means, including for local authorities, required to meet those needs is carried out. This assessment shall be included in the relevant waste management plans or in other strategic documents covering the entire territory of the State ;’

(iv) information on the measures to attain the objective laid down in Article 5(3a) of Directive 1999/31/EC or in other strategic documents covering the entire territory of the Member State concerned;

(v) an assessment of existing waste collection schemes, including the material and territorial coverage of separate collection and measures to improve its operation, of any derogations granted in accordance with Article 10(3) of the Waste Directive, and of the need for new collection schemes;

(vi) sufficient information on the location criteria for site identification and on the capacity of future disposal or major recovery installations, if necessary;

(vii) general waste management policies, including planned waste management technologies and methods, or policies for waste posing specific management problems;

(viii) measures to combat and prevent all forms of littering and to clean up all types of litter;

(ix) appropriate qualitative or quantitative indicators and targets, including on the quantity of generated waste and its treatment and on municipal waste that is disposed of or subject to energy recovery.

(x) information as respects the integration and implementation of measures consequential on, or incidental to, the requirements of section 27A in relation to waste prevention programmes;

(xi) the measures taken by the Minister to give effect to Article 22 of the Waste Directive in relation to bio-waste.”

(2) Subsection (6)(d) is replaced as follows:

“(d) Waste management plans shall conform to the waste planning requirements laid down in Article 14 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, and the strategy for the implementation of the reduction of biodegradable waste going to landfills, referred to in Article 5 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste as well as national legislation and policy on biodegradable waste.”

Replacement of section 27A of the Act of 1996 (Prevention of waste)

10. Section 27A of the Act of 1996 is replaced with the following:

“Prevention of waste

27A. (1) The Minister or any Minister of the Government concerned shall take measures to prevent waste generation. Those measures shall, at least, include those described in Article 9 (1) of the Waste Directive.

(2) The Agency shall monitor and assess the implementation of the waste prevention measures referred to in para (1). For that purpose, they shall use appropriate qualitative or quantitative indicators and targets, notably on the quantity of waste that is generated.

(3) The Agency shall monitor and assess the implementation of measures on re-use by measuring re-use on the basis of the common methodology established by the implementing act referred to in Article 9 (7) of the Waste Directive as from the first full calendar year after the adoption of that implementing act.

(4) The Agency shall monitor and assess the implementation of national food waste prevention measures by measuring the levels of food waste on the basis of the methodology established by the delegated act referred to in Article 9(8) of the Waste Directive as from the first full calendar year after the adoption of that delegated act.

(5) The public authorities concerned, shall ensure that any supplier of an article as defined in point 33 of Article 3 of Regulation (EC) No 1907/2006¹² of the European Parliament and of the Council provides the information pursuant to Article 33(1) of that Regulation to the European Chemicals Agency as from 5 January 2021 using the format(s) and submission tool(s) provided by the European Chemical Agency for that purpose.”

Insertion of section 27B into the Act of 1996 (Waste prevention programmes)

11. Section 27B is inserted into the Act of 1996 as follows:

“Waste prevention programmes

27B. (1) The Agency shall establish waste prevention programmes setting out at least the waste prevention measures as laid down in Section 27A(1) in accordance with Section 21A and with Article 1 of the Waste Directive.

Such programmes shall be integrated either into the waste management plans required under Section 28 or into other environmental policy programmes, as appropriate, or shall function as separate programmes. If any such programme is integrated into the waste management plan or into those other programmes, the waste prevention objectives and measures shall be clearly identified.

(2) When establishing such programmes, the Agency shall, where relevant, describe the contribution of instruments and measures listed in the Sixth Schedule to waste prevention and shall evaluate the usefulness of the examples of measures indicated the First Schedule or other appropriate measures. The programmes shall also describe existing waste prevention measures and their contribution to waste prevention.

(3) The aim of such objectives and measures shall be to break the link between economic growth and the environmental impacts associated with the generation of waste.

(4) The Agency shall adopt specific food waste prevention programmes within their waste prevention programmes.

(5) The Agency shall from time to time as it thinks appropriate, and at least once in each period of 6 years after the date of making of a waste prevention programme, evaluate the plan and make such revisions to it, in accordance with Article 9 of the Waste Directive and Regulation 31 of the Regulations of 2011, as it thinks fit and references in Part II and this Part to such a plan shall, unless the context otherwise requires, be construed as including references to such a plan as so revised.

(6) Upon the establishment of a waste prevention programme or programmes or of any revisions thereto, the Agency shall— (a) cause to be published in at least one national newspaper a notice of that fact and of the means by which a copy of the plan, as made or revised, may be obtained by members of the public at a cost not exceeding the reasonable cost of making a copy, and (b) furnish a copy of the plan, as made or revised, to the Minister and each local authority, and any other public authority which in the opinion of the Agency has an interest in the programme or programmes.

(7) In this section, ‘revise’, in relation to a waste prevention programme, includes a review of the programme.”

Amendment to section 29 of the Act of 1996 (Measures related to recovery of waste.)

12. Section 29 of the Act of 1996 is amended as follows:

(a) by substituting the following subsection for subsection (2A)

“(2A) (a) It shall be the duty of waste producers and holders to ensure that waste undergoes preparing for re-use, recycling or other recovery operations in accordance with sections 21A and 32(1).

(b) A person who contravenes paragraph (a) shall be guilty of an offence.

(c) The Agency and the local authorities, in carrying out their functions under this Act and related waste management legislation and policy, shall take the necessary measures to ensure that waste undergoes recovery operations in accordance with this section and sections 21A and 32(1).”

(b) by substituting the following subsection for subsection (2B)

“(2B) Where necessary to comply with subsection (2A) and to facilitate or improve preparing for re-use, recycling and other recovery operations, waste shall be subject to separate collection and shall not be mixed with other waste or other material with different properties.”

(c) by inclusion of the following subsections after subsection (2B)

“(2C) The Agency and the local authorities may allow derogations from subsection (2B) provided that at least one of the following conditions is met:

(a) collecting certain types of waste together does not affect their potential to undergo preparing for re-use, recycling or other recovery operations in accordance with section 21A and results in output from those operations which is of comparable quality to that achieved through separate collection;

(b) separate collection does not deliver the best environmental outcome when considering the overall environmental impacts of the management of the relevant waste streams;

(c) separate collection is not technically feasible taking into consideration good practices in waste collection;

(d) separate collection would entail disproportionate economic costs taking into account the costs of adverse environmental and health impacts of mixed waste collection and treatment, the potential for efficiency improvements in waste collection and treatment, revenues from sales of secondary raw materials as well as the application of the polluter-pays principle and extended producer responsibility.

The Agency and the local authorities shall regularly review derogations under this paragraph taking into account good practices in separate collection of waste and other developments in waste management.

(2D) The Agency and the local authorities shall take measures to ensure that waste that has been separately collected for preparing for re-use and recycling pursuant to Article 11(1) and Article 22 of the Waste Directive is not incinerated, with the exception of waste resulting from subsequent treatment operations of the separately collected waste for which incineration delivers the best environmental outcome in accordance with section 21A.

(2E) Where necessary to comply with subsection (2A) and to facilitate or improve recovery, waste producers and holders shall take the necessary measures, before or during recovery, to remove hazardous substances, mixtures and components from hazardous waste with a view to their treatment in accordance with sections 21A and 32(1).

(2F) By 31 December 2021, the Agency shall submit a report to the Commission on the implementation of this Section as regards municipal waste and bio-waste, including on the material and territorial coverage of separate collection and any derogations under (2C).”

Replacement of section 31A of the Act of 1996

13. Section 31A in the Act of 1996 is replaced as follows:

“Costs

31A. (1) In accordance with the polluter-pays principle, the costs of waste management, including for the necessary infrastructure and its operation, shall be borne by the original waste producer or by the current or previous waste holders.

(2) Without prejudice to Regulations 30 and 30A in the Regulations of 2020, the Minister or any Minister of the Government concerned, may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.”

Addition of Sixth and Seventh Schedules

14. The Act of 1996 is amended by adding the following Schedules after the Fifth Schedule.

“SIXTH SCHEDULE

EXAMPLES OF ECONOMIC INSTRUMENTS AND OTHER MEASURES TO PROVIDE INCENTIVES FOR THE APPLICATION OF THE WASTE HIERARCHY REFERRED TO IN ARTICLE 4(3) OF THE WASTE DIRECTIVE

1. Charges and restrictions for the landfilling and incineration of waste which incentivise waste prevention and recycling, while keeping landfilling the least preferred waste management option;

2. ‘Pay-as-you-throw’ schemes that charge waste producers on the basis of the actual amount of waste generated and provide incentives for separation at source of recyclable waste and for reduction of mixed waste;

3. Fiscal incentives for donation of products, in particular food;

4. Extended producer responsibility schemes for various types of waste and measures to increase their effectiveness, cost efficiency and governance;

5. Deposit-refund schemes and other measures to encourage efficient collection of used products and materials;

6. Sound planning of investments in waste management infrastructure, including through Union funds;

7. Sustainable public procurement to encourage better waste management and the use of recycled products and materials;

8. Phasing out of subsidies which are not consistent with the waste hierarchy;

9. Use of fiscal measures or other means to promote the uptake of products and materials that are prepared for re-use or recycled;

10. Support to research and innovation in advanced recycling technologies and remanufacturing;

11. Use of best available techniques for waste treatment;

12. Economic incentives for regional and local authorities, in particular to promote waste prevention and intensify separate collection schemes, while avoiding support to landfilling and incineration;

13. Public awareness campaigns, in particular on separate collection, waste prevention and litter reduction, and mainstreaming these issues in education and training;

14. Systems for coordination, including by digital means, between all competent public authorities involved in waste management;

15. Promoting continuous dialogue and cooperation between all stakeholders in waste management and encouraging voluntary agreements and company reporting on waste.

________________________________________

SEVENTH SCHEDULE

IMPLEMENTATION PLAN TO BE SUBMITTED PURSUANT TO ARTICLE 11(3) OF THE WASTE DIRECTIVE

The implementation plan to be submitted pursuant to Article 11(3) shall contain the following:

1. assessment of the past, current and projected rates of recycling, landfilling and other treatment of municipal waste and the streams of which it is composed;

2. assessment of the implementation of waste management plans and waste prevention programmes in place pursuant to Articles 28 and 29;

3. reasons for which the Member State considers that it might not be able to attain the relevant target laid down in Article 11(2) within the deadline set therein and an assessment of the time extension necessary to meet that target;

4. measures necessary to attain the targets set out in Article 11(2) and (5) that are applicable to the Member State during the time extension, including appropriate economic instruments and other measures to provide incentives for the application of the waste hierarchy as set out in Article 4(1) and Annex IVa;

5. a timetable for the implementation of the measures identified in point 4, determination of the body competent for their implementation and an assessment of their individual contribution to attaining the targets applicable in the event of a time extension;

6. information on funding for waste management in line with the polluter-pays principle;

7. measures to improve data quality, as appropriate, with a view to better planning and monitoring performance in waste management.”

Part 3 REGULATIONS TO GIVE EFFECT TO WASTE DIRECTIVE

Amendment to Regulation 27 of the Regulations of 2011 (By-Products)

15. Regulation 27 of the Regulations of 2011 is replaced as follows:

“By-products

27. (1) the Agency shall take appropriate measures to ensure that a substance or object resulting from a production process the primary aim of which is not the production of that substance or object is considered not to be waste, but to be a by-product 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 a natural or legal person holds a substance or object in accordance with paragraph (1) which he or she believes is to be considered as a by-product, he or she shall notify the Agency and seek a determination on the matter from the Agency

(b) He or she shall comply with relevant Agency guidance and submit information in a form and format as may be prescribed by the Agency in order to establish that the conditions in paragraph (1) are met.

(c) 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 natural or legal person concerned, whether a substance or object notified to it as a by-product in accordance with paragraph (2)(a) should be considered as a by-product or as a waste, and

(b) shall notify the local authority and the natural or legal person concerned of the determination made.

(c) may attach reporting conditions to a determination, pursuant to regulation 31a.

(4) Nothing in this Regulation shall relieve a natural or legal person 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.

(7) Where criteria have not been set at Union level , the Agency may establish detailed criteria on the application of the conditions laid down in paragraph 1 to specific substances or objects. The Agency shall notify the Commission of those detailed criteria in accordance with Directive (EU) 2015/1535¹³ of the European Parliament and of the Council where so required by that Directive.”

Amendment to regulation 28 of the Regulations of 2011 (End-of-Waste status)

16. Regulation 28 of the Regulations of 2011 is replaced as follows:

“End-of-waste status

28 (1) (a) The Agency shall take appropriate measures to ensure that waste which has undergone a recycling or other recovery operation is considered to have ceased to be waste if it complies with the following conditions:

(i) the substance or object is to be used for specific purposes;

(ii) a market or demand exists for such a substance or object;

(iii) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and

(iv) the use of the substance or object will not lead to overall adverse environmental or human health impacts.

(2) Where criteria have not been set at Union level, the Agency may establish detailed criteria on the application of the conditions laid down in paragraph 1 to certain types of waste. Those detailed criteria shall take into account any possible adverse environmental and human health impacts of the substance or object and shall satisfy the following requirements:

(a) permissible waste input material for the recovery operation;

(b) allowed treatment processes and techniques;

(c) quality criteria for end-of-waste materials resulting from the recovery operation in line with the applicable product standards, including limit values for pollutants where necessary;

(d) requirements for management systems to demonstrate compliance with the end-of-waste criteria, including for quality control and self-monitoring, and accreditation, where appropriate; and

(e) a requirement for a statement of conformity.

The Agency shall notify the Commission of those criteria in accordance with Directive (EU) 2015/1535 where so required by that Directive.

(3) Where criteria have not been set at either Union or national level under paragraph 2, the Agency may decide on a case-by-case basis, or take appropriate measures to verify, that certain waste has ceased to be waste on the basis of the conditions laid down in paragraph 1 and, where necessary, reflecting the requirements laid down in points (a) to (e) of paragraph 2, and taking into account limit values for pollutants and any possible adverse environmental and human health impacts. Such case-by-case decisions are not required to be notified to the Commission in accordance with Directive (EU) 2015/1535. The Agency may make information about case-by-case decisions and about the results of verification publicly available by electronic means.

(4) Where a natural or legal person in accordance with paragraph (1) holds a substance or object and seeks to apply end-of-waste status, he or she shall promptly notify the Agency and seek a decision on the matter from the Agency.

In order to establish end-of-waste status under sub-paragraphs (1), (2) and (3), the holder shall comply with relevant Agency guidance and submit information in a form and format as may be prescribed by the Agency for this application. The Agency may also require reporting conditions, pursuant to regulation 31a.

(5) The natural or legal person who:

(a) uses, for the first time, a material that has ceased to be waste and that has not been placed on the market; or

(b) places a material on the market for the first time after it has ceased to be waste,

shall ensure that the material meets relevant requirements under the applicable chemical and product related legislation. The conditions laid down in paragraph (1) have to be met before the legislation on chemicals and products applies to the material that has ceased to be waste.”

Amendment to Regulation 29 in the Regulations of 2011 (List of waste)

17. Regulation 29 (2) of the Regulations of 2011 is replaced as follows:

“(2) (a) The Agency may consider waste as hazardous waste where, even though it does not appear as such on the list of waste, if it displays one or more of the properties listed in the Second Schedule to the Act of 1996.

(b) The Agency shall notify the Minister who shall notify the Commission of any such cases without delay and provide the Commission with all relevant information. ”

Amendment to Regulation 30 in the Regulations of 2011 (Extended Producer Responsibility)

18. The following is added after 30. 1(c):

“(d) Where such measures include the establishment of extended producer responsibility schemes, the general minimum requirements laid down in Regulation 30A shall apply.

(e) The Minister or any Minister of the Government concerned may decide that producers of products that undertake financial or financial and organisational responsibilities for the management of the waste stage of a product’s life cycle of their own accord should apply some or all of the general minimum requirements laid down in Regulation 30A.

(2) (a) The Minister or any Minister of the Government concerned may take appropriate measures to encourage the design of products and components of products in order to reduce their environmental impacts and the generation of waste in the course of the production and subsequent use of products, and in order to ensure that the recovery and disposal of products that have become waste take place in accordance with sections 21A and 32(1) of the Act of 1996 and Regulation 32.

(b) Such measures may encourage, inter alia, the development, production and marketing of products and components of products that are suitable for multiple use, that contain recycled materials, that are technically durable and easily reparable and that are, after having become waste, suitable for preparing for re-use and recycling in order to facilitate proper implementation of the waste hierarchy. The measures shall take into account the impact of products throughout their life cycle, the waste hierarchy and, where appropriate, the potential for multiple recycling;

(3) When applying extended producer responsibility, the Minister or any Minister of the Government concerned shall take into account the technical feasibility and economic viability and the overall environmental, human health and social impacts, respecting the need to ensure the proper functioning of the internal market of the European Union.

(4) Any extended producer responsibility advanced under the measures referred to in paragraph (1) shall be applied without prejudice to the responsibility for waste management as provided for in section 32(1A) of the Act of 1996 and without prejudice to existing waste stream specific and product specific legislation.”

Addition of Regulation 30A to the Regulations of 2011 (General minimum requirements for extended producer responsibility schemes)

19. Regulation 30A is inserted into the Regulations of 2011, following Regulation 30, as follows

“General minimum requirements for extended producer responsibility schemes

30A. (1) Where extended producer responsibility schemes are established in accordance with Regulation 30, including pursuant to other legislative acts of the Union, the Minister or any Minister of the Government concerned shall:

(a) define in a clear way the roles and responsibilities of all relevant actors involved, including producers of products placing products on the market of the State, organisations implementing extended producer responsibility obligations on their behalf, private or public waste operators, local authorities and, where appropriate, re-use and preparing for re-use operators and social economy enterprises;

(b) in line with the waste hierarchy, set waste management targets, aiming to attain at least the quantitative targets relevant for the extended producer responsibility scheme as laid down in the Waste Directive, 94/62/EC, Directive 2000/53/EC, Directive 2006/66/EC and Directive 2012/19/EU of the European Parliament and of the Council , and set other quantitative targets and/or qualitative objectives that are considered relevant for the extended producer responsibility scheme;

(c) ensure that a reporting system is in place to gather data on the products placed on the market of the State by the producers of products subject to extended producer responsibility and data on the collection and treatment of waste resulting from those products specifying, where appropriate, the waste material flows, as well as other data relevant for the purposes of point (b);

(d) ensure equal treatment of producers of products regardless of their origin or size, without placing a disproportionate regulatory burden on producers, including small and medium-sized enterprises, of small quantities of products.

(2) The Minister or any Minister of the Government concerned shall take the necessary measures to ensure that the waste holders targeted by the extended producer responsibility schemes established in accordance with Regulation 30, are informed about waste prevention measures, centres for re-use and preparing for re-use, take-back and collection systems, and the prevention of littering. The Minister or any Minister of the Government concerned shall also take measures to create incentives for the waste holders to assume their responsibility to deliver their waste into the separate collection systems in place, notably, where appropriate, through economic incentives or regulations.

(3) The Minister or any Minister of the Government concerned shall take the necessary measures to ensure that any producer of products or organisation implementing extended producer responsibility obligations on behalf of producers of products:

(a) has a clearly defined geographical, product and material coverage without limiting those areas to those where the collection and management of waste are the most profitable;

(b) provides an appropriate availability of waste collection systems within the areas referred to in point (a);

(c) has the necessary financial means or financial and organisational means to meet its extended producer responsibility obligations;

(d) puts in place an adequate self-control mechanism, supported, where relevant, by regular independent audits, to appraise:

(i) its financial management, including compliance with the requirements laid down in points (a) and (b) of paragraph 4;

(ii) the quality of data collected and reported in accordance with point (c) of paragraph 1 of this Regulation and with the requirements of Regulation (EC) No 1013/2006;

(e) makes publicly available information about the attainment of the waste management targets referred to in point (b) of paragraph 1, and, in the case of collective fulfilment of extended producer responsibility obligations, also information about:

(i) its ownership and membership;

(ii) the financial contributions paid by producers of products per unit sold or per tonne of product placed on the market; and

(iii) the selection procedure for waste management operators.

(4) The Minister or any Minister of the Government concerned shall take the necessary measures to ensure that the financial contributions paid by the producer of the product to comply with its extended producer responsibility obligations:

(a) cover the following costs for the products that the producer puts on the market in the State:

— costs of separate collection of waste and its subsequent transport and treatment, including treatment necessary to meet the Union waste management targets, and costs necessary to meet other targets and objectives as referred to in point (b) of paragraph 1, taking into account the revenues from re-use, from sales of secondary raw material from its products and from unclaimed deposit fees,

— costs of providing adequate information to waste holders in accordance with paragraph 2,

— costs of data gathering and reporting in accordance with point (c) of paragraph 1.

This point shall not apply to extended producer responsibility schemes established pursuant to Directive 2000/53/EC, 2006/66/EC or 2012/19/EU;

(b) in the case of collective fulfilment of extended producer responsibility obligations, are modulated, where possible, for individual products or groups of similar products, notably by taking into account their durability, reparability, re-usability and recyclability and the presence of hazardous substances, thereby taking a life-cycle approach and aligned with the requirements set by relevant Union law, and where available, based on harmonised criteria in order to ensure a smooth functioning of the internal market; and

(c) do not exceed the costs that are necessary to provide waste management services in a cost-efficient way. Such costs shall be established in a transparent way between the actors concerned.

Where justified by the need to ensure proper waste management and the economic viability of the extended producer responsibility scheme, the Minister or any Minister of the Government concerned may depart from the division of financial responsibility as laid down in point (a), provided that:

(i) in the case of extended producer responsibility schemes established to attain waste management targets and objectives established under legislative acts of the Union, the producers of products bear at least 80 % of the necessary costs;

(ii) in the case of extended producer responsibility schemes established on or after 4 July 2018 to attain waste management targets and objectives solely established in national legislation, the producers of products bear at least 80 % of the necessary costs;

(iii) in the case of extended producer responsibility schemes established before 4 July 2018 to attain waste management targets and objectives solely established in national legislation, the producers of products bear at least 50 % of the necessary costs,

and provided that the remaining costs are borne by original waste producers or distributors.

This derogation may not be used to lower the proportion of costs borne by producers of products under extended producer responsibility schemes established before 4 July 2018.

(5) The Minister or any Minister of the Government concerned shall establish an adequate monitoring and enforcement framework with a view to ensuring that producers of products and organisations implementing extended producer responsibility obligations on their behalf implement their extended producer responsibility obligations, including in the case of distance sales, that the financial means are properly used and that all actors involved in the implementation of the extended producer responsibility schemes report reliable data. Where, in the territory of the State, multiple organisations implement extended producer responsibility obligations on behalf of producers of products, the Minister or any Minister of the Government concerned shall appoint at least one body independent of private interests or entrust a public authority to oversee the implementation of extended producer responsibility obligations. The Minister or any Minister of the Government concerned shall allow the producers of products established in another Member State and placing products on the market of the State to appoint a legal or natural person established in the State as an authorised representative for the purposes of fulfilling the obligations of a producer related to extended producer responsibility schemes. For the purposes of monitoring and verifying compliance with the obligations of the producer of the product in relation to extended producer responsibility schemes, the Minister or any Minister of the Government concerned may lay down requirements, such as registration, information and reporting requirements, to be met by a legal or natural person to be appointed as an authorised representative on their territory.

(6) The Minister or any Minister of the Government concerned shall ensure a regular dialogue between relevant stakeholders involved in the implementation of extended producer responsibility schemes, including producers and distributors, private or public waste operators, local authorities, civil society organisations and, where applicable, social economy actors, re-use and repair networks and preparing for re-use operators.

(7) The Minister or any Minister of the Government concerned shall take measures to ensure that extended producer responsibility schemes that have been established before 4 July 2018, comply with this regulation by 5 January 2023.

(8) The provision of information to the public under this regulation shall be without prejudice to preserving the confidentiality of commercially sensitive information in conformity with the relevant Union and national law.”

Amendment to Regulation 31 in the Regulations of 2011 (Preparing for re-use and recycling)

20. Regulation 31 of 2011 is replaced as follows:

“Preparing for re-use and recycling

31. (1) (a) The Minister or any Minister for the Government concerned, shall take measures to promote preparing for re-use activities, notably by encouraging the establishment of, and support for, preparing for re-use and repair networks, by facilitating, where compatible with proper waste management, their access to waste held by collection schemes or facilities, that can be prepared for re-use, but is not destined for preparing for re-use by those schemes or facilities, and by promoting the use of economic instruments, procurement criteria, quantitative objectives or other measures.

(b) The Minister, the Agency or the local authorities shall, in carrying out their respective functions under the Act of 1996, take measures to promote high-quality recycling and, to this end, subject to section 29(2B) and 29(2C) of the act of 1996, shall set up separate collection of waste.

(c) Subject to section 29(2B) and 29(2C) of the act of 1996, separate collection shall be set up at least for paper, metal, plastic and glass, and, by 1 January 2025, for textiles.

(d) The Minister, the Agency or the local authorities shall, in carrying out their respective functions under the Act of 1996, take measures to promote selective demolition in order to enable removal and safe handling of hazardous substances and facilitate re-use and high-quality recycling by selective removal of materials, and to ensure the establishment of sorting systems for construction and demolition waste at least for wood, mineral fractions (concrete, bricks, tiles and ceramics, stones), metal, glass, plastic and plaster.

(2) In order to comply with the objectives of the Waste Directive, and move to a European circular economy with a high level of resource efficiency, the Minister, the Agency or the local authorities shall, in carrying out their respective functions under the Act of 1996, shall take the necessary measures designed to achieve the following targets:

(a) by 2020, the preparing for re-use and the recycling of waste materials such as at least paper, metal, plastic and glass from households and possibly from other origins as far as these waste streams are similar to waste from households, shall be increased to a minimum of overall 50 % by weight;

(b) by 2020, the preparing for re-use, recycling and other material recovery, including backfilling operations using waste to substitute other materials, of non-hazardous construction and demolition waste excluding naturally occurring material defined in category 17 05 04 in the list of waste shall be increased to a minimum of 70 % by weight;

(c) by 2025, the preparing for re-use and the recycling of municipal waste shall be increased to a minimum of 55 % by weight;

(d) by 2030, the preparing for re-use and the recycling of municipal waste shall be increased to a minimum of 60 % by weight;

(e) by 2035, the preparing for re-use and the recycling of municipal waste shall be increased to a minimum of 65 % by weight.”

Addition of Regulation 31A in the Regulations of 2011 (Rules on the calculation of the attainment of the targets)

21. Regulation 31A is added to the Regulations of 2011 as follows

“Rules on the calculation of the attainment of the targets

31A. (1) For the purpose of calculating whether the targets laid down in points 2 (c), (d) and (e) of Regulation 31 have been attained:

(a) the Agency shall calculate the weight of the municipal waste generated and prepared for re-use or recycled in a given calendar year;

(b) the weight of the municipal waste prepared for re-use shall be calculated as the weight of products or components of products that have become municipal waste and have undergone all necessary checking, cleaning or repairing operations to enable re-use without further sorting or pre-processing;

(c) the weight of the municipal waste recycled shall be calculated as the weight of waste which, having undergone all necessary checking, sorting and other preliminary operations to remove waste materials that are not targeted by the subsequent reprocessing and to ensure high-quality recycling, enters the recycling operation whereby waste materials are actually reprocessed into products, materials or substances.

(2) For the purposes of point (c) of paragraph 1, the weight of the municipal waste recycled shall be measured when the waste enters the recycling operation. By way of derogation from the first subparagraph, the weight of municipal waste recycled may be measured at the output of any sorting operation provided that:

(a) such output waste is subsequently recycled;

(b) the weight of materials or substances that are removed by further operations preceding the recycling operation and are not subsequently recycled is not included in the weight of waste reported as recycled.

(3) The Minister, the Agency and the local authorities, in carrying out their respective functions under the Act of 1996 shall establish an effective system of quality control and traceability of municipal waste to ensure that the conditions laid down in point (c) of paragraph 1 of this Regulation and in paragraph 2 of this Regulation are met. To ensure the reliability and accuracy of the data gathered on recycled waste, the system may consist of electronic registries set up pursuant to Regulation 45(4), technical specifications for the quality requirements of sorted waste, or average loss rates for sorted waste for various waste types and waste management practices respectively. Average loss rates shall only be used in cases where reliable data cannot be obtained otherwise and shall be calculated on the basis of the calculation rules established in the delegated act adopted pursuant to paragraph 10 of Article 11a of the Waste Directive.

(4) For the purpose of calculating whether the targets laid down in points 2 (c), (d) and (e) of Regulation 31 have been attained, the amount of municipal biodegradable waste that enters aerobic or anaerobic treatment may be counted as recycled where that treatment generates compost, digestate, or other output with a similar quantity of recycled content in relation to input, which is to be used as a recycled product, material or substance. Where the output is used on land, this may be counted as recycled only if this use results in benefits to agriculture or ecological improvement. As from 1 January 2027, municipal bio-waste entering aerobic or anaerobic treatment may be counted as recycled only if, in accordance with Regulation 38, it has been separately collected or separated at source.

(5) For the purposes of calculating whether the targets laid down in points 2 (c), (d) and (e) of Regulation 31 have been attained, the amount of waste materials that have ceased to be waste as a result of a preparatory operation before being reprocessed may be counted as recycled provided that such materials are destined for subsequent reprocessing into products, materials or substances to be used for the original or other purposes. However, end-of-waste materials to be used as fuels or other means to generate energy, or to be incinerated, backfilled or landfilled, shall not be counted towards the attainment of the recycling targets.

(6) For the purposes of calculating whether the targets laid down in points 2 (c), (d) and (e) Regulation 31 have been attained, the Agency may take into account the recycling of metals separated after incineration of municipal waste provided that the recycled metals meet certain quality criteria laid down in the implementing act adopted pursuant to paragraph 9 of Article 11a of the Waste Directive.

(7) Waste collected in Ireland and exported to another Member State for the purposes of preparing for re-use, recycling or backfilling in that other Member State may be counted towards the attainment of the targets laid down in Regulation 31(2) in Ireland.

(8) Waste collected in Ireland and exported from the Union for preparing for re-use or recycling shall count towards the attainment of the targets laid down in Regulation 31(2) only if the requirements of paragraph 3 of this Regulation are met and if, in accordance with Regulation (EC) No 1013/2006, the exporter can prove that the shipment of waste complies with the requirements of that Regulation and that the treatment of waste outside the Union took place in conditions that are broadly equivalent to the requirements of the relevant Union environmental law.”

Amendment of Regulation 34 in the Regulations of 2011(Ban on the mixing of hazardous waste)

22. Regulation 34 is amended by substituting the following subsection for subsection (4):

“(4) Where hazardous waste has been unlawfully mixed in breach of paragraph (1), the Agency and the local authorities shall ensure, without prejudice to section 32 of the Act of 1996, that separation is carried out where technically feasible and necessary to comply with section 32 (1) on the protection of human health and the environment. Where separation is not required pursuant to the first subparagraph of this paragraph, the Agency and the local authorities shall ensure that the mixed waste is treated in a facility that has obtained a permit in accordance with section 39(1) of the Act of 1996 to treat such a mixture.”

Replacement of Regulation 36 in the Regulations of 2011 (Hazardous waste produced by households)

23. Regulation 36 in the Regulations of 2011 is replaced as follows:

“Hazardous waste produced by households

36. (1) By 1 January 2025, the Minister, the Agency or the local authorities in carrying out their respective functions under the Act of 1996, shall set up separate collection for hazardous waste fractions produced by households to ensure that they are treated in accordance with in accordance with sections 21A and 32(1) of the Act of 1996 and do not contaminate other municipal waste streams.

(2) Section 15(2) of the Act of 1996 and Regulations 33, 34, 35 and 45 shall not apply to mixed waste produced by households.

(3) Section 15(2) of the Act of 1996 and Regulations 35 and 45 shall not apply to separate fractions of hazardous waste produced by households until they are accepted for collection, disposal or recovery by an establishment or an undertaking which has obtained a waste licence or has been registered in accordance with section 39(1) of the Act of 1996 or Regulation 39.”

Replacement of Regulation 37 in the Regulations of 2011 (Waste Oils)

24. Regulation 37 in the Regulations of 2011 is replaced as follows:

“Waste oils

37. Without prejudice to the obligations related to the management of hazardous waste laid down in Regulations 34 and 35, the Agency and the local authorities and Dublin City Council shall, in carrying out their respective functions under the Act of 1996, take the necessary measures to ensure that—

‘(a) waste oils are collected separately, unless separate collection is not technically feasible taking into account good practices;

(b) waste oils are treated, giving priority to regeneration or alternatively to other recycling operations delivering an equivalent or a better overall environmental outcome than regeneration, in accordance with in accordance with sections 21A and 32(1) of the Act of 1996;

(c) waste oils of different characteristics are not mixed and waste oils are not mixed with other kinds of waste or substances, if such mixing impedes their regeneration or another recycling operation delivering an equivalent or a better overall environmental outcome than regeneration.”

Replacement of Regulation 38 in the Regulations of 2011 (Bio-waste)

25. Regulation 38 in the Regulations of 2011 is replaced as follows:

“Bio-waste

38. (1) The Minister shall ensure that, by 31 December 2023 and subject to section 29(2B) and 29(2C) of the act of 1996, bio-waste is either separated and recycled at source, or is collected separately and is not mixed with other types of waste. The Agency and the local authorities may allow waste with similar biodegradability and compostability properties which complies with relevant European standards or any equivalent national standards for packaging recoverable through composting and biodegradation, to be collected together with bio-waste.

(2) The Minister shall take measures in accordance with sections 21A and 32(1) of the Act of 1996 to:

(a) encourage the recycling, including composting and digestion, of bio-waste in a way that fulfils a high level of environment protection and results in output which meets relevant high-quality standards;

(b) encourage home composting; and

(c) promote the use of materials produced from bio-waste.”

Replacement of Regulation 45 in the Regulations of 2011 (Record keeping)

26. Regulation 45 in the Regulations of 2011 is replaced as follows:

“Record keeping

45. (1) The establishments and undertakings referred to in section 39(1) of the Act of 1996, the producers of hazardous waste and the establishments and undertakings which collect or transport hazardous waste on a professional basis, or act as dealers and brokers of hazardous waste, shall keep a chronological record of:

(a) the quantity, nature and origin of that waste and the quantity of products and materials resulting from preparing for re-use, recycling or other recovery operations; and

(b) where relevant, the destination, frequency of collection, mode of transport and treatment method foreseen in respect of the waste.

They shall make that data available to the local authorities, the Agency or Dublin City Council, as appropriate. through the electronic registry or registries to be established pursuant to paragraph 4 of this Regulation.

(2) (a) For hazardous waste, the records shall be preserved for at least 3 years (except in the case of establishments and undertakings transporting hazardous waste which shall keep such records for at least 12 months).

(b) Documentary evidence that the management operations have been carried out shall be supplied by the establishment or undertaking concerned at the request of the local authorities, the Agency or Dublin City Council or of a previous holder.

(3) The local authorities, the Agency or Dublin City Council, as appropriate, may require the producers of non-hazardous waste to comply with paragraphs (1) and (2) in such form, and at such frequency, as may be specified for the purposes of reporting under Regulation 52.

(4) The Agency shall set up an electronic registry or coordinated registries to record the data on hazardous waste referred to in paragraph 1 covering the entire geographical territory of the State. The Agency may establish such registries for other waste streams, in particular for those waste streams for which targets are set in legislative acts of the Union. The Agency shall use the data on waste reported by industrial operators in the European Pollutant Release and Transfer Register set up under Regulation (EC) No 166/2006 of the European Parliament and of the Council.

(5) A person who contravenes paragraph (1) or (2) shall be guilty of an offence.”

Amendment to Regulation 50 in the Regulations of 2011 (Enforcement and penalties)

27. The first para in Regulation 50 in the Regulations of 2011 is replaced as follows:

“50. (1) Each legal authority, the Agency or Dublin City Council, as appropriate, shall take the necessary enforcement measures to prohibit the abandonment, dumping or uncontrolled management of waste, including littering.”

Replacement of Regulation 52 in the Regulations of 2011 (Reporting)

28. Regulation 52 in the Regulations of 2011 is replaced as follows:

“Reporting

52 (1) The Minister shall report the data concerning the implementation of points (a) to (e) of Article 11(2) of the Waste Directive for each calendar year to the Commission.

(2) For the purposes of verifying compliance with point (b) of Article 11(2) of the Waste Directive, the Minister shall report the amount of waste used for backfilling and other material recovery operations separately from the amount of waste prepared for re-use or recycled. The Minister shall report the reprocessing of waste into materials that are to be used for backfilling operations as backfilling. For the purposes of verifying compliance with points (c), (d) and (e) of Article 11(2) and Article 11(3 of the Waste Directive), the Minister shall report the amount of waste prepared for re-use separately from the amount of waste recycled.

(3) The Minister shall report the data concerning the implementation of Article 9(4) and (5) of the Waste Directive to the Commission every year.

(4) The Minister shall report the data on mineral or synthetic lubrication or industrial oils placed on the market and waste oils separately collected and treated for each calendar year to the Commission.

(5) The data reported by the Minister in accordance with this Regulation shall be accompanied by a quality check report and a report on the measures taken pursuant to Article 11a(3) and (8) of the Waste Directive, including detailed information about the average loss rates where applicable.

(6) Data and information reported under this Regulation shall be in compliance with the requirements of Article 37 of the Waste Directive and shall be reported in formats for reporting established by the Commission in accordance with paragraph 7 of this Article.

(7) Local authorities and Dublin City Council shall provide such information to the Agency in writing, or other form of notification, including electronic means, as may be specified by the Agency for the purposes of compliance with this Regulation.

(8) Waste producers that are required to maintain records by local authorities, the Agency or Dublin City Council under Regulation 45(3) shall provide such information to the Agency in writing, or other form of notification, including electronic means, as may be specified by the Agency for the purposes of compliance with this Regulation.”

GIVEN under my Official Seal,

27 August 2020.

EAMON RYAN

Minister for Communications, Climate Action and Environment.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations give effect to Directive 2018/851 of the European Parliament and of the Council of 30 May 2018 on Waste and amending certain Directives, referred to in these Regulations as the Waste Directive.

The Regulations set out additional measures to protect the environment and human health by preventing or reducing the generation of waste, the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use, which are crucial for the transition to a circular economy and long-term competitiveness.

Earlier iterations of the Waste Directive have been primarily transposed by the Waste Management Act 1996 and by the European Communities (Waste Directive) Regulations 2011. Therefore, these Regulations primarily consist of amendments to these two pieces of legislation.

The following table indicates how the Directive is transposed- also noting where aspects which are the responsibility of the Commission are not transposed.

1 OJ L 150, 14.6.2018, p. 109

2 OJ L 150, 14.6.2018, p. 141

3 OJ L 365, 31.12.1994, p. 10

4 OJ L 150, 14.6.2018, p. 100

5 OJ L 182, 16.7.1999, p. 1

6 OJ L 266, 26.9.2006, p. 1

7 OJ L 150, 14.6.2018, p. 93

8 OJ L 197, 24.7.2012, p. 38

9 OJ L 269, 21.10.2000, p. 34

10 OJ L 229, 1.9.2009, p. 1

11 OJ L 31, 1.2.2002, p. 1

12 OJ L 396, 30.12.2006, p. 1

13 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services OJ L 241, 17.9.2015, p. 1