By-product or waste? The five conditions of Article 10 of the Act on waste and the recognition procedure

An object or substance arising in a production process whose primary aim is not to produce it is a by-product, not waste, only if it meets cumulatively the five conditions of Article 10 of the Act on waste of 14 December 2012. If even one is missing, the material remains waste. In February 2020 a producer cannot recognise the status "on its own": it must submit a notification to the voivodeship marshal and obtain a decision (Article 11).

Why this matters for biogas plants

The status of the substrate determines the whole chain of obligations. Waste has a catalogue code, is covered by records and transfer cards in the BDO, and the entity that processes it needs a permit or an integrated permit. A by-product does not have these obligations, but the producer must have a decision and keep to the conditions on which it received it. For the supplier (e.g. a food processing plant) what counts is whether it is selling a raw material or "discarding waste". For the biogas plant — whether it is receiving a substrate or waste.

Remember that some biomass is not subject to this act at all: animal excrement covered by Regulation (EC) No 1069/2009, straw and other natural non-hazardous substances from agriculture or forestry, used to produce energy from biomass in a way not harmful to the environment, are excluded from the scope of the act (Article 2(6)). The question of a by-product therefore concerns mainly materials from the agri-food industry and similar.

The five cumulative conditions of Article 10

The first two conditions most often topple notifications: material that requires treatment going beyond normal industrial practice (e.g. intensive removal of contaminants) does not meet condition 2, and the lack of a regular recipient undermines condition 1.

The procedure step by step (Article 11)

1. Notification to the voivodeship marshal competent for the place of production. It contains the details of the entity and NIP, the place of production, an indication of the material and its mass, a description of the production process and of the process in which the material will be used, and information demonstrating that the conditions of Article 10 are met.
2. Evidence attached to the notification. The act lists in particular contracts confirming use of the material for specified purposes and test results from laboratories meeting the requirements of the Environmental Protection Law.
3. Opinion of the voivodeship environmental protection inspector. The inspector may carry out an inspection within the scope of the notification, and the marshal may participate in it; the inspection suspends the running of the time limit for issuing the opinion.
4. The marshal's decision. If the inspector's opinion is negative, the marshal issues a decision refusing recognition.
5. Period of validity. The decision is issued for a fixed period of no more than 10 years. This construction (the marshal's decision after the WIOŚ opinion, a period of up to 10 years, an inspection before the opinion) was introduced by the amendment of 20 July 2018.
6. Changes. If you change the production process or the way the material is used, you must submit a new notification and go through the procedure from the beginning.

In February 2020 the procedures do not cover feed materials specified in the relevant EU provisions or mechanically processed, clean wood raw material (bark, sawdust, chips, pellets, etc.) — these may be by-products without a decision, provided they meet the conditions of Article 10.

By-product versus end-of-waste status

These are two different routes. A by-product concerns material that from the start arises in a process whose aim is not to produce it, and never becomes waste if it meets the conditions (Articles 10–11). End-of-waste status (Article 14) concerns material that was waste and, after recycling or other recovery, meets the criteria to cease to be waste. In the first case you must make sure that waste status does not arise, in the second — prove that the processing has produced a full-value product. Confusing the two routes ends in a lack of proper documentation.

Day-to-day consequences

• Storage. Article 13 prohibits storing by-products together with waste and storing by-products in places intended for waste. If a yard or tank is a "waste" one, the material placed there loses the argument that it is not waste.
• Loss of status. Objects or substances that have ceased to meet the conditions of Article 10 are waste. This also applies where the recipient stops taking the material and the producer "manages it otherwise".
• The biogas plant as recipient. If the supplier has a decision, it is worth having a copy in the delivery documentation and checking whether the scope, mass and period of validity correspond to actual deliveries. If there is no decision, treat the material as waste and choose a code from the catalogue.

Common mistakes

• assuming that a commercial contract alone "turns" waste into a product;
• no laboratory tests for material of variable composition;
• mixing a "product" batch with a waste one in a single yard;
• changing the technology without a new notification;
• deliveries above the mass indicated in the notification.

What to do first

1. Establish whether the material is excluded from the act (Article 2(6)) or from the procedure (Article 11(5)).
2. Write down the process: where the material comes from, how much, who takes it and for what.
3. Collect the contracts and test results.
4. Check whether detailed criteria exist for the given material (EU or minister's regulation).
5. Submit the notification and, until the decision, treat the material with caution — the risk is borne by the producer.

This text is for information purposes only and does not constitute legal advice; before an investment or formal decision, check the current wording of the provisions and consult a lawyer or the competent authority.