1. European Union Classification of Steel Slags, Refractories and Aluminum Dross

The Annex of the European Commission Decision 2000/532/CE of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (“Decision 2000/532/EC”) lists wastes and notably the wastes from the iron and steel industry or else wastes from aluminum thermal metallurgy.

Pursuant to this Annex:

• wastes from the processing of slag (item 10 02 01) and unprocessed slag (item 10 02 02) from the iron and steel industry are classified as non-hazardous wastes (except if they are contaminated by hazardous substances);
• black drosses from secondary production of aluminum thermal metallurgy are classified as hazardous waste (item 10 03 09*);
• refractories can be classified as hazardous or non-hazardous wastes depending on the metallurgical process used (item 16.11).

For more precision on the list of wastes, especially for refractories, please refer to the Annex of Decision 2000/532/CE. Hazardous waste is marked in this appendix with an asterisk.

Nevertheless, steel slags, refractories and aluminum dross may be classified as byproducts if they meet specific criteria provided for in Article 5 of the Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives:

• "further use of the substance or object is certain;
• the substance or object can be used directly without any further processing other than normal industrial practice;
• the substance or object is produced as an integral part of a production process; and
• 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".

In an Interpretative Communication on waste and byproducts, the European Commission gives some examples of wastes and non-wastes and classifies blast furnace slags as a byproduct (Communication COM/2007/0059 from the Commission to the Council and the European Parliament of 2 February 2007, on the Interpretative Communication on waste and byproducts). However, if some of these substances need to be treated before being reused, they cannot be classified as by-products.

Besides, it may be noted that the Directive 2008/98/EC provides for criteria related to the end-of-waste status. Pursuant to Article 6.1 of the said Directive: “Member States 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:

1. the substance or object is to be used for specific purposes;
2. a market or demand exists for such a substance or object;
3. the substance or object fulfills the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and
4. the use of the substance or object will not lead to overall adverse environmental or human health impacts”.

2. European Union Regulations on Landfilling Steel Slags, Aluminum Dross and Refractories

Article 4 of Directive 2008/98/EC provides for a waste hierarchy, which shall apply as a priority order in waste prevention and management legislation and policy:

1. prevention;
2. preparing for re-use;
3. recycling;
4. other recovery, e.g. energy recovery; and
5. disposal.

Therefore, operators may use landfills as the last option for waste management.

In any case, pursuant to the Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (“Directive 1999/31/EC”), non-hazardous and hazardous wastes can only be stored and disposed of in storage facilities for non-hazardous waste or, if necessary, for hazardous waste (Article 6). These facilities are subject to authorization (Article 8). In principle, this authorization is mandatory if these wastes are stored:

• more than one year when it is to be disposed of; or
• more than three years when it is intended to be recovered (Article 2).

Except for the waste management principles mentioned in the answer to question 1, we have not identified specific regulations to encourage steel mills and aluminum producers to reuse or recycle their byproducts.

However, some new or draft European regulations may impact aluminum and steel producers’ waste and co-products management:

• The Communication COM(2019) 640 from the Commission of 11 December 2019 on The European Green Deal provides that the Commission will present:
  • initiatives to stimulate lead markets for climate-neutral and circular products in energy-intensive industrial sectors;
  • a proposal to support zero-carbon steel-making processes by 2030;
  • a legislative waste reform.

The timetable of this communication planned these proposals and initiatives as of 2020. To our knowledge, no related EU regulation or directive has been published yet.

• A draft Commission Delegated Regulation Ares(2021)44204 provides to allow the use of thermal oxidation materials and derivates in fertilizing products. This draft regulation would allow the reuse, under certain conditions, in fertilizing products, of ashes and slags produced by steel mills.
• Article 12 of the Directive 2008/98/EC provides that “by 31 December 2024, the Commission shall carry out an assessment of the disposal operations listed in Annex I, in particular in light of Article 13, and shall submit a report to the European Parliament and to the Council, accompanied, if appropriate, by a legislative proposal, with a view to regulating disposal operations, including through possible restrictions, and to consider a disposal reduction target, to ensure environmentally sound waste management”. It may result in new restrictions on landfilling steel mills and aluminum producers' waste.

We understand that you are asking about the regulations applicable to (i) the use of chemicals and metals used in the steel production process and (ii) the burial of these chemicals and metals.

(i) These products are, in particular, subject to registration requirements (a) and to occupational exposure limit values (b).

(a) Chemicals, metals and oxides are single chemical elements or compounds qualified as substances by Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the registration, evaluation, authorization and restriction of chemicals ("REACH Regulation") Article 1. Under the REACH Regulation, substances are subject to registration by their manufacturer or importer (not their end-user) with the European Chemicals Agency ("ECHA") when the volume of production or import exceeds one ton per year and, for dangerous substances, to an authorization or prohibition regime.

Fluorine, aluminum oxide, chromium, beryllium, molybdenum and calcium seem to be included in the scope of the REACH Regulation; however, it also seems that these substances can, due to their naturalness and/or low hazard, be exempted from the registration obligation on the basis of Annex V of REACH Regulation.

Please note that if hexavalent chromium ("CR VI") is used in the process, its use is now subject to authorization and will ultimately have to be substituted by another less harmful substance. No changes to the REACH Regulation on these substances seem to be on the agenda.

(b) The use of chemicals may be subject to occupational exposure limit values pursuant in particular Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work and Directive 2004/37/EC of the European Parliament and of the Council on the protection of workers from the risks related to exposure to carcinogens or mutagens at work. This is particularly the case for fluorine, beryllium, calcium and hexavalent chromium where appropriate. No regulatory changes to the occupational limit values for these substances appear to be on the agenda.

(ii) The rules on landfills depend on whether the waste is hazardous or not.

Waste is classified as hazardous when it exhibits one or more of the hazardous properties listed in Annex III of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives. Hazardous waste is marked with an asterisk in the list of waste in the Annex to Commission Decision 2000/532/EC of 3 May 2000. Among the substances about which you are asking us, fluorine, beryllium, calcium and hexavalent chromium where appropriate are considered to be dangerous. To our knowledge, there are currently no plans to amend this framework.

1. The manufacture of concrete is subject to compliance with a French standard which is itself derived from a European standard: the EN 206/CN standard.
2. The manufacture of cement is subject to a harmonized European standard (EN 197-1). The European Committee for Standardization (CEN/TC 51 - Cement and building limes) has approved a new standard: EN 197-5 (not yet available). Two new families of cement (called CEM II/C-M and CEM VI) should normally be regulated by this standard.

• The CEM II/C-M is cement made of a part of clinker between 50 and 64%, added to a part of 36 to 50% of limestone and other components of your choice (slag, silica fume, pozzolan, fly ash or calcined shale);
• CEM VI is a cement comprising a share of 35 to 49% of clinker, a share of 31 to 59% of blast furnace slag and a share of 6 to 20% of the third component of your choice (natural pozzolan, siliceous fly ash or limestone). Currently, it seems that the discussions at the European level are complex and that each country finally adopts an identical standard by its national standardization body (Afnor for France).

Regulations apply to industrial processes under Directive 2010/75/EU of 24 November 2010 on industrial emissions ("IED"). This directive requires the Member States to take measures to ensure that industrial installations are operated taking all necessary preventive measures against pollution, that best available techniques are applied, that the generation of waste is avoided and that waste is prepared for re-use, recycled, recovered or disposed of (Article 11). The activities covered by these measures, listed in Annex I to this directive, include

• Steel production;
• Processing of ferrous metals;
• The operation of ferrous metal foundries with a production capacity of more than 20 tons per day;
• Production of cement, lime and magnesium oxide;
• Manufacture of ceramic products;
• Production of organic chemicals (such as hydrocarbons);
• Production of inorganic chemicals (such as gases). Operators of installations of these industries must therefore apply the best available techniques for the sector concerned, which correspond to the most effective and advanced stage of development of the activities and their methods of operation, demonstrating the practical suitability of particular techniques as a basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole (Article 3 of the IED). The IED provides for an exchange of information between the Member States, industrial sectors, non-governmental environmental protection organizations and the European Commission in order to create and update BAT reference documents, consisting of Best available techniques REFerence documents ("BREFs") describing the state of the techniques implemented by sector, and "BAT Conclusions". These describe the techniques that companies must implement and the associated emission levels.
• The BATs should therefore be applied to minimize emissions and reuse byproducts. As an example, in the steel sector, these methods aim to regulate dust emissions and maximize the use of these products. They are published by the European Integrated Pollution Prevention and Control Bureau ("EIPPCB") and available online (see attached references).

1. The European Union emission trading system (“EU ETS”) was established by the Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas (“GHG”) emission allowance trading within the Community. The EU ETS provides for a cap set to limit the total level of certain GHG that can be emitted from the facilities covered by the system and this cap is progressively lowered in order to reduce the total level of emissions.

The European Council of October 2014 made a commitment to reduce the overall GHG of the union by at least 40% below 1990 levels by 2030.

In this context, the legislative framework of the fourth phase of the EU ETS (2021-2030) was revised in 2018 to implement this objective with the adoption of the Directive (EU) 2018/410 of 14 March 2018 entered into force on 8 April 2018 ("Directive 2018/410") and provides for a 43% reduction from 2005 levels by 2030.

2. However, please also note that as part of the European Green Deal, the commission announced on 11 December 2019 to increase the EU's GHG emissions reduction target for 2030 to at least 50% and move towards 55% below 1990 levels. A proposal for a regulation of 17 September 2020 on establishing the framework for achieving climate neutrality provides for a 55% reduction of GHG gas emissions by 2030 compared to 1990 levels. On 11 December 2020, the European Council indicated that it had reached an agreement with the Member States on this target of 55% reduction of GHG gas emissions by 2030 compared to 1990 levels.

There is a risk that the strengthening of the initial emission reduction targets (55% rather than 40%) could have an impact on the EU ETS. At this stage, Directive 2018/410 has not yet been revised.

3. To date, the Directive 2018/410 includes the following changes:

• Annual allowances reductions of 2.2% starting in 2021.
• Strengthening the Market Stability Reserve ("MSR") to reduce the excess of emission allowances. Between 2019 and 2023, the number of allowances held in the MSR will be doubled to 24% of the allowances in circulation and the normal feed-in rate of 12% will be restored from 2024 onwards. In principle, from 2023 onwards, the number of allowances held in the MSR will be limited to the volume of allowances from the previous year to be auctioned. Allowances held in excess of this volume will no longer be valid.
• Maintaining the free allocation of allowances for a ten-year period. However, some significant changes to this system have been adopted and aim to focus the mechanism mainly on those sectors most at risk of relocating their production outside the EU. In this respect:
  • For those sectors most at risk of relocating their production outside the EU, they will receive 100% of their allowances for free. For information, the Commission delegated decision (EU) 2019/708 of 15 February 2019 listed manufacture of basic iron and steel and of ferro-alloys as sectors at risk of carbon leakage;
  • For other sectors, the free allocation of allowances will be phased out after 2026, from a maximum of 30% to zero at the end of Phase 4 (2030).
• Relaxation of the rules to align the level of free allocations with actual production levels:
  • allowances allocated to individual facilities may be adjusted annually to reflect corresponding increases and decreases in production.

A threshold of 15% has been set for these adjustments and will be evaluated on the basis of a two-year moving average. Implementing acts of the Commission may also be adopted;

• The list of facilities covered by the Directive 2018/410 and eligible for free allocation of allowances will be updated every 5 years;
• In order to avoid windfall profits, the 54 reference values used to determine the level of allowances allocated free of charge to each installation will be updated twice during Phase 4.

Regulation 1013/2006 of 14 June 2006 on shipments of waste regulates shipments of waste and byproducts. In particular, it provides that waste shipped within the community for recovery listed in Annex IV is subject to the prior notification procedure. "Dross, scalings and other wastes from the iron and steel industry" (AA010), which includes "wastes in the form of ash, residue, slag, dross, skimming, scaling, dust, powder, sludge and cake, unless a material is expressly listed elsewhere", are included in this list and are therefore subject to the prior written notification and consent procedure (Article 3). Waste destined for disposal is systematically subject to this procedure. The procedure is described in Article 4 of the regulation. The procedure also requires the exporter to enter into a contract with the consignee for the recovery or disposal of the notified waste (Article 5) and to provide financial guarantees covering, inter alia, the cost of transport, the cost of recovery or disposal operations, and the cost of storage for 90 days (Article 6).

For shipments to third countries to which the Decision C(2001)107/Final of the OECD Council concerning the revision of Decision C(92)39/Final on control of transboundary movements of wastes destined for recovery operations ("OECD Decision") applies, exports of steel slags or applied products are subject to the prior written notification and consent procedure and the additional measures set out in Article 38 of Regulation 1013/2006. In particular: (i) the competent authorities of dispatch and transit in the community shall send to the customs office of export and the customs office of exit from the community a stamped copy of the decision by which they consent to the shipment, (ii) the carrier shall send to the customs office of the export or the customs office of exit from the community a copy of the movement document, and (iii) as soon as the waste has left the community, the customs office of exit from the community shall send a stamped copy of the movement document to the competent authority of dispatch in the community indicating that the waste has left the community. As regards exports to countries to which the OECD Decision applies, granulated slag from the manufacture of iron and steel (B1200) and slag from the manufacture of iron or steel used as a source of titanium dioxide and vanadium (B1210) are not subject to the export ban for recovery (Article 36). Such waste is subject to the prior notification procedure (Article 37). Imports of waste for recovery into the community are prohibited except from countries to which the OECD Decision applies, countries that are parties to the Basel Convention or countries with which an agreement exists (Article 43).