Waste or by-product? - the (hidden) potential of residues from production activities

The question of how to deal with surplus material from construction or production activities must be addressed by every investor. It can be surplus excavation soil or, for example, offcuts and sawdust from solid wood. From the point of view of the circular economy, which is taken into account in a number of strategic documents at EU and Czech level, it is desirable that the value of reusable material is maximised.

(on the photo colleagues from ARROWS team in Hradec Kralove)

However, the correct classification of surplus material is essential from a regulatory point of view. If the material is harmless and does not endanger the environment or human health, then it is appropriate to address the possibility of classifying it as a by-product and using it in this way. Consideration should be given to the preparation of the by-product plan at the outset. Without this consideration, there is a risk of not meeting the legal criteria or having to treat the surplus material as waste with all the legal obligations.

According to the legal regulation (Act No 541/2020 Coll., on waste), waste is any movable thing that a person disposes of, intends to dispose of or is obliged to dispose of. A person is deemed to have the intention to dispose of a movable object if it cannot be used for its original purpose. A person shall be under an obligation to dispose of a movable object if (a) it is not used or cannot be used for its original purpose and the object is at the same time a threat to the environment, (b) it has been discarded or withdrawn pursuant to another legal provision, or (c) it has been produced with the primary purpose of producing or acquiring the object but is not a by-product. In case of doubt as to whether a movable object is waste, the regional authority shall decide at the request of the owner of the movable object or of a person who demonstrates a legal interest, or ex officio.

As an example, consider the situation with surplus soil. In the course of a capital investment project (e.g. construction of a sewerage system), surplus soil is generated. There is a real need to use the excavated soil on the construction site in the vicinity of this project, while the soil from the first project is satisfactory in terms of quality and quantity, so it seems rational to use it in this way. If the soil is a by-product (see conditions below), further use is in principle possible without further measures. However, if it is waste, it can in principle only be managed in facilities designated for the management of that type and category of waste.

What can actually be a by-product?

By-product is a term for materials that are generated as an unintended by-product of a production activity, which at the same time (although often considered unwanted) may harbour real potential for use in other construction or production processes. The use of by-products can be economically, administratively and environmentally advantageous.

The by-product regime at national level is regulated by the Waste Act. The by-product treatment in the provisions of Section 8 of the Waste Act is based on the Waste Framework Directive [Directive (EC) 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, as amended by Directive (EU) 2018/851 of the European Parliament and of the Council]. The interpretation of the legislation in the case law of the CJEU, which is very relevant in the field of waste management, should also be taken into account, both in relation to the concept of waste and the concept of by-product.

What conditions must by-products fulfil?

According to the Waste Act, a movable object resulting from a production whose primary purpose is not to produce or acquire that object is not waste but a by-product if it fulfils the conditions laid down by law.

The first condition is that the item is generated as an integral part of the production process. This means that it is organically linked to the production process. The other condition is that there is a further use of the item. This means that, in principle, at the time of its creation, it is already planned and ensured how it will be further used. There is therefore a specific demand. Furthermore, the condition must be met that the item can be used without the need for further processing that would deviate from normal production practice. Last but not least, the use of the item must comply with the applicable legislation, whether it is national legislation (e.g. building law) or European Union legislation (see e.g. directly applicable chemical legislation). This use must not have adverse effects on the environment or human health.

The material-specific criteria for assessing compliance with the above conditions must also be met, where these criteria are laid down in implementing legislation or directly applicable European Union legislation. Compliance shall then be verified by sampling, testing or other specified procedure. The process shall also include the preparation of appropriate supporting documentation, which shall be governed by the scope laid down in the relevant implementing legislation or directly applicable regulation of the European Union. In the explanatory memorandum to the provision in question, the Ministry of the Environment states that the by-product provision is worded in such a way that if the criteria have not been verified in accordance with the implementing regulation, the matter does not meet the definition of a by-product. The accompanying documentation is supposed to contain, inter alia, information on the purpose for which a particular by-product can be used (i.e. it will not be a by-product for other purposes). If the by-product is used contrary to its conditions of use, it will be waste.

A specific example of an earlier specification of a by-product is asphalt mixture (see already repealed Decree No 130/2019 Coll.). These conditions apply until 31 December 2023 according to the transitional provision of the current implementing decree of the Waste Act.

Potential for surplus construction materials

Pursuant to Section 15(2)(f) of the Waste Act, when removing a building, carrying out construction or maintaining a building, it is necessary to follow a procedure for the management of demolished building materials intended for reuse, by-products and construction and demolition waste in such a way as to ensure the highest possible rate of reuse and recycling.

Decree No 273/2021 Coll. on the details of waste management in the context of the requirements for construction and demolition waste requires, inter alia, separate segregation when removing a building, carrying out construction or maintaining a building in respect of demolished building materials that can be further used in the by-product regime. This obligation applies at least to soil and stones and recovered asphalt mixtures (see § 42 in conjunction with Annex 24, point 2 of the Ordinance).

All of the above conditions apply to the fulfilment of the by-product scheme. In practice, in addition to the quality requirements, the existence of a specific and concrete use, i.e. in principle a pre-planned use in another (construction, production) process, is crucial. Ensuring this requirement can be problematic, particularly for soil, given that investment projects involving large-scale handling of soil are carried out with a relatively long time lag between the submission of the application for planning permission.

Conclusion

The use of the potential of residual materials from manufacturing or construction activities as by-products is essentially desirable in the context of the industrial transformation towards a circular economy. However, it is also necessary to ensure that environmental and human health protection requirements are met. It is appropriate to pay attention to these issues already in the preparation of permitting processes in relation to specific projects.

Vendula Marková collaborated on the article.